Washington DUI Trial Law

The REAL Trap Of DUI Emphasis Patrols

Francisco Duarte — Thu, 31 Dec 2009 08:39:43 -0800

Most of us have heard the news bulletins informing us that law enforcement agencies around the state are increasing their “holiday emphasis patrols” in a preemptive strike against drunk driving. What many don’t know, however, is how these groups actually operate.

A common misunderstanding is that these cops are only on the look-out for the obviously drunk drivers, and are waiting to stop cars that appear to be driving erratically or recklessly. While this is also true, most emphasis patrols require that officers make regular traffic stops for routine infractions throughout their shift in the hopes that they will discover a driver who has been drinking. In other words, these cops are not lying in wait for the obviously impaired driver; rather, they are targeting regular citizens as a pretext for conducting otherwise improper investigations into drinking, and are much more prone to make hasty arrests even when the driver is not impaired.

For example, most highway patrol officers working a regular shift would divide their time between responding to calls for assistance (i.e. disabled motorists) and in traffic code enforcement. But on an emphasis patrol, the officer is usually directed not to respond to service calls and instead focus solely on enforcement, even if that officer is in the best position to render assistance. (Consequently, this sometimes results in longer-than-necessary waits for stranded drivers or for the removal of debris in the roadway).

Also, officers working an emphasis shift are much more likely to strictly apply the traffic code then when on routine patrol. For instance, a traffic stop when only driving five miles over the 60 MPH freeway speed limit would generally be a rarity. But for an emphasis officer, any possible violation is reason enough for a stop because it provides an opportunity to investigate drinking – even when the cop has no particular reason to believe the driver has even consumed alcohol or drugs.

In fact, many emphasis patrols require officers to initiate a certain number of traffic stops each hour that they work unless/until they make a DUI arrest. This requirement is often mandated in order to receive funding for specialized patrols. While having contact quotas forces officers to actively work, as opposed to just sitting around while earning overtime pay, it also results in unjustified traffic stops simply to keep up the numbers. Even more troubling, it encourages unjustified arrests because once a DUI arrest is made, the officer is relieved of the quota requirement.

What this means for every driver is that even tiny infractions can get you stuck. Things like: the size of mud flaps, the color of turn signals, the height of exhaust pipes, the tinting of windows, stopping with wheels an inch onto the white cross-walk line, traveling 1-5 miles over the speed limit, turning into the right lane on a left-hand turn or turning into the left lane on a right-hand turn, traveling closely to the car in front = all of these minuscule equipment problems or driving irregularities can result in a traffic stop that would not be a concern under normal conditions.

So, when you think about those “holiday patrols” be aware that they are designed to trap everyone -even where there is no unsafe driving, and remember that minor deviations provide all the ammunition cops need to ruin your night and possibly land you in jail.

DUI Victim Panels Raise Awareness and Foster Humane Perspectives

Francisco Duarte — Sat, 09 May 2009 10:42:36 -0800

Two days ago a young man was sentenced to prison for the fatal death of a good man in a drunk driving incident. It was the young man’s first and only incident with the law, not even a traffic infraction in his 14 year driving history, which resulted in a tragic transformation for all. The victim’s family suffered the loss of a fantastic person, known to all as a great father, loving husband, and loyal friend. At the same time, the young man had a defining moment in his life, which takes him to prison, leaving behind a cadre of people who adore him and who will miss his kindness, generosity, and loving manner.

The pain is pervasive. For most it comes from the experience of the loss of a loved one and for the young man it comes from knowing that his kind soul is responsible for the taking of life.

These events are devastating all around and there are no winners. This is why I was surprised to hear about the jubilation outside of the courtroom when the young man in handcuffs was taken from the courtroom by marshals to begin his journey behind bars. It is very understandable that the victim’s family would experience a sense of righteous vindication upon the imposition of sentence. This sense of “closure” would bring a welcome relief to a painful chapter in the life of those left behind. Anyone can appreciate such a moment.

However, what happen next was incomprehensible. A few piercing words rose from the high-fiving crowd and lingered above those celebrating in complete jubilation:

“…let’s go have a drink and celebrate…”

It must have been a mistake. How could any person witnessing the events inside the courtroom and knowing how alcohol played a role in ruining two lives speak such words? I suppose sometimes we loose perspective on things and when humanity is called upon to be humane and humanitarian, we find the darkest side of ourselves.

Personal responsibility and self reflection is required. One program that could bring sound perspective on the loss experienced by all and raise our collective awareness to the dangers of driving after drinking is the DUI Victim Panels. These panels are staffed by persons who were either victims, related to victims, or accused of alcohol offenses. They share with the audience heart wrenching stories that leave a strong impression about the the dangers of mixing alcohol with driving. The Legislature should consider requiring all first time drivers and/or licensees to attend a session of the DUI Victim Panels. The Legislature should also bring these programs into high schools and the workplace. Instead of promoting laws that do not work, it should consider programs that do work!

Don't be Fooled, Field Sobriety Tests do not Measure Sobriety.

Francisco Duarte — Sun, 12 Apr 2009 11:21:56 -0800

The charge of Driving Under the Influence (DUI) requires proof that the driver was impaired or affected by alcohol consumption. This means that the quality and the quantity of the evidence must demonstrate that the driver’s mental or physical functions were impaired to safely operate and control a car.[1] Therefore, it is irrelevant to the charge of DUI to produce evidence that does not measure or demonstrate driving impairment. According to the National Highway Traffic Safety Administration (hereafter NHTSA), standardized field sobriety tests (FSTs) do not measure driving impairment. The common roadside tests include the walk and turn test, the one leg stand test, and the horizontal gaze nystagmus test. Sometimes police officers will add the ABC test, the Rhomberg Balance test, the finger to nose test, and the counting backwards test.

In fact, these agility tests are not “sobriety” tests in spite of their label. This is a government-sponsored “name” for a battery of agility tests to mold the public’s perception in believing that the tests do something that they do not. These tests were designed and are solely used to help an officer estimate a driver’s alcohol concentration and establish probable cause to arrest based on their prediction of an alcohol concentration. See DOT HS 808 839, Final Report, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent. In other words, the roadside agility tests were developed for the sole purpose of assisting a police officer to make an arrest decision because arrest decisions must be reasonable and must be based on articulable facts.

While many courts and prosecutors consider the roadside tests to be conclusive on the issue of intoxication, nothing could be further from the truth. A good friend of mine cannot and would not “pass” any of the roadside tests because he can barely walk due to all sorts of medical issues, including his weight, but he is a fine driver. As noted in the NHTSA report:

Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect tests to possess “face validity,” that is, tests that appear to be related to actual driving tasks….Driving a motor vehicle is a very complex activity that involves a wide variety of tasks and operator capabilities. It is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside. The constraints imposed by roadside testing conditions were recognized by the developers of NHTSA’s SFST battery. As a consequence, they pursued the development of tests that would provide statistically valid and reliable indicators of a driver’s BAC, rather than indicators of driving impairment.

Therefore, roadside tests do not measure driving impairment. These are not sobriety tests, no matter what the government would like us to believe. Roadside tests are not relevant to the question of whether a driver was impaired or affected to safely operate his vehicle due to alcohol or drug consumption. They are only relevant to answer the legal question about whether or not an arrest was lawful, a standard far below the proof required to convict a person of a crime. Moreover, its use is highly prejudicial because the government would attempt to incorrectly proffer the results of the roadside tests to establish driving impairment due to alcohol or drug consumption.[2]

[1] State v. Hurd, 5 Wn.2d 308 (1940); State Hansen, 15 Wn. App. 95 (1976); State v. Melcher, 33 Wn. App. 357 (1982).

[2] ER 403; Compare,State v. Koch, 126 Wn. App. 589, 597, 103 P.3d 1280, 1284 (2005) (HGN cannot be used to show intoxication, only consumption) ; State v. Baity, 140 Wn.2d 1, 13, 991 P.2d 1151, 1159 (2000) (DRE protocol cannot be used to show level impairment and discussed in a scientific aura.)

Meaningful Jury Selection (Voir Dire) Requires an Honest and Open Discussion.

Francisco Duarte — Tue, 23 Sep 2008 00:04:11 -0800

Like a sporting match, a trial is a competition. Ultimately, there must be a winner and a loser; a hung jury is a tie, requiring a do-over. Competition, fear of failure, lack of education about juries, and other factors cause attorneys to focus on finding and striking those jurors that seemingly favor the opposing side. Prospective jurors readily see through this tactic, re-enforcing the erroneous belief that trial attorneys are all about tricks and deception. Only an honest and open discussion about attitudes and beliefs during jury selection, and genuine acceptance of varying points of views, may help prospective jurors overcome their stereotypes about trial attorneys.

Of course, that is not the only goal in jury selection. The true purpose of jury selection is to “voir dire” the prospective jury. Voir dire means “to see and speak the truth.” The goal then is to encourage prospective jurors to reveal their true attitudes and beliefs, even if they are antithetical to lawyers, the legal system, or the type of suit at issue. Although most attorneys want a jury made up of fair and impartial jurors, their execution is poor. Law schools are woefully deficient in teaching trial practice, and even more so in teaching jury selection. (See Gerry Spence on Defrauding our nation's lawyers.) Further, few attorneys understand the psychological dynamics present in the courtroom.

There is one simple thing, however, that attorneys and judges can do to improve the process. Courts and attorneys should refrain from asking questions that elicit socially desirable responses. Often, when faced with jurors that have honestly expressed a different point of view, attitude, or belief, attorneys make the mistake of dishonoring the juror’s candor. Instead, they invoke leading questions that discourage an open and honest dialogue, such as:

“Juror x, can you set aside your beliefs and be fair and impartial?”

“Juror Y, are you willing to follow the law as given to you by the judge in the court’s jury instructions?”

“Are you willing to listen to the evidence and decide the case solely on the evidence or lack of evidence presented in this case?”

A juror is made to feel that if he or she does not respond affirmatively to the questions, then he or she will be perceived as lacking open-mindedness, intelligence, or integrity. This practice puts a great deal of pressure on jurors, many of whom have very little familiarity with the legal process and feel intimidated by the very setting of the courthouse. It is extremely difficult for jurors to feel comfortable publicly sharing their views when they are discouraged from genuinely expressing themselves.

Instead, the juror will give the socially desirable response in order to “look good” to the court and to the other jurors. Most potential jurors will not respond affirmatively if asked, "Are you biased?" See LaFave, et. al, Criminal Procedure (2nd 1999). Conversely, most jurors will respond affirmatively if asked, "Can you be fair or can you follow the court's instructions?" Similarly, watching another member of the panel be questioned in this manner will almost certainly make jurors very reluctant to disclose their true attitudes and beliefs for fear of being singled out and made to feel badly for genuinely expressing themselves. This type of questioning results from a lack of understanding of the psychological underpinnings of self-disclosure interviews, and the chilling effect on honest and open self disclosure of questions seeking socially desirable responses.

Because the essence of voir dire is opening a dialog with prospective jurors in a way that encourages meaningful self-disclosure, the court and the attorneys should refrain from soliciting socially desirable responses. Instead, jurors should be invited to be themselves and should be honored and respected for sharing their genuine beliefs and attitudes, even if the attorneys do not like it. Only then will the process successfully unearth crucial information about prospective jurors and result in a dialogue that really matters to the parties and the court.

Cross-examination is All About Storytelling. (Part 2 of 2)

Francisco Duarte — Sat, 30 Aug 2008 12:39:22 -0800

If cross-examination is about revealing the truth of your case through story telling, how do you do it? Moreover, if the truth of your case is that your guy did it then what do you do? To be fair, I cannot answer the question in this article. But if you like this article, I can be persuaded to write another one just on that topic alone. However, here is a brief answer to the question. There are many truths about a case, about a witness, or about the events surrounding a case. The challenge is to find the real story about your case or the witness.

Once you have found the truth, or a truth, about your case or about the witness you tell the story one question at a time. The witness’ answer does not matter as much, if at all. The reasonableness and the sincerity of your story is what matters to the jury. The jury will remember and accept your story regardless of the witness’ answer. For example, every single witness has a story, such as the witness is biased, mistaken, inept, out to lunch, whatever. Moreover, every witness has a story she or he wants to tell. It is important to note the difference between the two. The story that the witness wants to tell is not necessary the same, and seldom is, the same story about the witness. The true story about an expert witness might be that he or she is a hired gun or an expert for sale to the highest bidder. If so, you never need to question the expert witness about his credentials, expertise, or conclusion. All you would need to do is tell the true story (in question format) about the witness—that is, that he or she is for sale on the auction block to the highest bidder. In this scenario, it would not matter that the witness might be correct in his or her conclusion or that the witness has impeccable credentials.

The cross-examination of an eyewitness might go something like this. The example is taken from a case where the attendant of a 7-11 gas station was called to testify two years after the incident about the identity of a suspect who was speaking with two other individuals next to the public phone outside the store. The day the witness testified would have been his second time “seeing” the defendant. The true story in this cross-examination was that the witness was not competent to make a proper in-court identification of the suspect.

Question: You have been working at the 7-11 gas station for the last 5 years?

Answer: Yes sir.

Question: As a cashier?

Answer: Yes, that’s my job.

Question: You work 6 days a week?

Answer: Yes.

Question: You put in 9 hours a day?

Answer: At least, it takes me an extra 15 to 20 minutes to wrap up my day.

Question: You see a lot of people in and out of the gas station.

Answer: Yes sir.

Question: On average you see 75 to 100 customers a day at the register?

Answer: Yes, and I see more around the gas station. We’re very busy.

Question: In an average year, you see more than 30,000 customers?

Answer: I guess so.

Question: In the last two years you have seen more than 60,000 customers?

Answer: I see a lot of people every day. Sir, I can’t remember them all.

Because the risk of failure in a trial is heightened during cross-examination, telling a true story about your case or witnesses in cross-examination will help you avoid the pitfalls and master the basics of questioning. Here are some of the basic principles that might help one to avoid the agony of defeat and to experience the thrill of victory:

1. Find a story, a real story about your case, witness, events, etc! Then tell it! Prepare your story and break it down into concise statements to control the scope and the direction of your cross-exam. Then tell your story. If you draw an objection, alleging that you are testifying, then you know you are doing really well. This is the point of cross-examination. You tell the story one question at a time and have the witness confirm or deny the fact. Again, the answer is not as important as your true story. For instance:

Question: The itsy bitsy spider went up the waterspout, true?

Answer: No, it did not.

Question: Down came the rain, correct?

Answer: No, it was sunny.

Question: And washed the spider out, correct?

Answer: Maybe, I am not sure.

Question: Then the sun came out, true?

Answer: The sun was out all day and night.

Question: And dried up all the rain, right?

Etc…!!!!!!!

2. Rarely take on a witness in his or her field of expertise. As a general rule, it is unwise to attempt to discredit a witness on his or her field of expertise. In most cases, the witness is by far more knowledgeable about the subject matter than you are. A direct attack on the subject matter results in an opportunity for the witness to enlarge upon the testimony he or she has already given, and to explain what might have otherwise been misunderstood or even overlooked by opposing counsel and the jury. The task here is to expose the witness' motivations, biases, shortcomings, etc.

3. Establish only facts from an expert witness. In preparing your cross-examination, pay close attention to the clear distinction between matters of scientific fact and mere matters of opinion. An expert witness can hardly disagree with established facts, but would be more than pleased to let you know why in his or her opinion the facts support his or her conclusion. The facts will enable you to argue your theory of the case with credibility and force.

4. Avoid posing questions that call for or invite opinion testimony. Obviously, in spite of your best effort to control the witness, the witness would love the opportunity to tell you what they think about the case, your client, etc. Therefore, if you elicit or invite an opinion from the witness, you are going to get the answer you do not want to hear.

5. Make the opposing witness your witness. As a matter of principle, jurors connect with witnesses before they connect, if at all, with the attorneys in the courtroom. This means that witnesses generally have “built-in” credibility. Therefore, in a well-crafted cross-examination, you can establish with the aid of the witness a number of irrefutable facts to argue your theory of the case.

6. Cross-examine the witness early and often before the trial date. In other words, interview and study the witness far in advance of trial. In trial, as a matter of principle, you cannot afford to ask a question to which you do not know the answer. You should prepare your cross-examination and test it out with the witness prior to the trial date. In this way, you will learn in advance of the trial date the answer to your question and the reason why that is the answer to your question. Moreover, if the answer to your question is a damaging one, you can either rework the question to one that works for you or abandon it altogether without any risks.

7. Do not repeat the witness’ direct testimony. It is very easy to fall in the trap of allowing the witness to repeat the direct testimony, which results in reinforcing the opposing party’s case and bolstering the witness’ credibility. If the jury hears it once, maybe they will believe it. If they hear it twice, they will probably believe it. And, if it is in writing (like the BAC ticket,) nothing on this earth will persuade then that it’s not true.

8. Do not get greedy. Lengthy cross-examinations without focus, direction, and purpose are disastrous and should rarely be attempted. Your goal is to elicit enough information to argue the theory of your case. Therefore, do not ask one question too many, the witness would love the opportunity to burn you, if possible.

The Legal Limit is Not Really .08!

Francisco Duarte — Fri, 29 Aug 2008 19:11:25 -0800

The law defines the crime of driving under the influence (DUI/DWI) as driving with an alcohol concentration at .08 or higher. (See Male and Female BAC Chart.) We all know this. It is virtually impossible to miss the .08 signs on the side of the road, the TV public announcements, the motor-vehicle driving booklet, the news reports about DUI laws, etc., etc. What is not well known about the DUI laws is that it has another definition. It is illegal to drive when a person is under the influence of or affected by alcohol and/or drugs. In other words, a person is guilty of DUI if his or her ability to drive is lessened to any appreciable degree, regardless of the quantity of alcohol or drugs in their system.

This means that a person who blows below .08 may be arrested, charged, and convicted of DUI. It also means that a person with no alcohol in their system, but who has some quantity of drugs in his or her system, including prescription medications, may be convicted of DUI. This part of the law is not well known or understood by the public. I have represented many individuals who have been accused of DUI with very low alcohol concentrations—as low as .02, the equivalent of a 12 oz. beer. Also, I have represented senior citizens who have been accused of DUI when they had taken only their prescribed medication as ordered by physicians. Surprisingly, it is not a defense to the charge of DUI that the person was entitled to use the prescribed medication.

People who find themselves in this situation are shocked when they discover these details about the DUI laws. On top of being scared, ashamed, and depressed, they feel a great sense of frustration because they believe, and rightly so, that they were misled by the government. Often I hear questions like how fair is it for the government to profit from alcohol sales and at the same time prosecute people who don’t exceed the legal limit? How can an elderly person with a clean record be accused of DUI when they were taking their meds as required? The answer to all of these questions, of course, is unsettling and unsatisfying--that’s the law! The Legislature, in its infinite wisdom, passed these laws believing them to be right.

The shocking revelations about the DUI laws do not end here. It actually gets worse when these folks find out that the evidence to be presented against them often consist solely of the subjective opinion of the arresting police officer. The officer will be called at trial to express an opinion about the accused’s sobriety state, citing to his or her experience as a police officer and to his or her observations about the accused. The testimony is often bolstered by reference to roadside tests, otherwise known in law enforcement circles as field sobriety tests, which are not even designed to measure a person’s ability to drive. These tests are no more than physical exercises designed to create imbalance, but spun to convince a jury that they mean something a kin to a forensic breath or blood test.

There is no question that driving intoxicated is dangerous and it should be stopped. Also, there cannot be any question that the laws as they stand leave too much room for unfair treatment and unjust prosecutions. Perhaps the law should be that no person should drive after consuming any amount of alcohol. That way, every citizen will clearly understand what is expected and what the law requires. Most importantly, it removes from the equation the flaw in prosecuting and convicting persons on the subjective opinion of witnesses.

Cross-examination is All About Storytelling (Part 1 of 2)

Francisco Duarte — Wed, 27 Aug 2008 09:46:37 -0800

Just about every trial lawyer will tell you that cross-examination is by far the most challenging aspect of a trial. In fact, many say that cross-examination is an “art” and few are born with the innate talent to do it well. The most notable books on the subject reinforce the idea that cross-examination is an art. For instance, The Art of Cross- Examination, by Francis L. Wellman, The Lost Art of Cross-Examination, by J.W. Ehrlich, and The Art of Questioning – Thirty Maxims of Cross-Examination, by Peter Megargee Brown. So what does this mean for the rest of us who were born without the artful talent of cross-examination? I suppose we can only hope that through experience and trial practice we will develop the skill and proficiency to avoid the most severe battle wounds of trial.

An effective cross-examination can make you feel like you are the greatest lawyer of all time. On the other hand, a failed cross-examination can deflate you and make you question even your decision to enroll in law school. Cross-examination brings to life the old ABC Sports’ slogan: “The agony of defeat and the thrill of victory!” I agree that cross-examination is the most difficult trial skill, but it is not an art. Thank goodness. The good news is that anyone can do it well, in fact, artfully.

Good cross-examination is the result of thorough preparation and hard work. This you knew. But did you know that the most effective cross-examination is when, based on a complete knowledge of the legal and factual issues involved in the trial, the examiner tells his or her story about the case, the witness, or the event? Yes, cross-examination is story telling. Right about now you are thinking…“is this guy for real?” Yes, I am not kidding. A successful cross-examination is telling the true story about your case, the witness, or the event one sentence at a time.

Cross-examination is not about getting the witness to agree with you point by point (this would be nice) or to pummel the witness to submission (in some cases this would be nice too.) These are not realistic goals. In fact, in a genuinely challenging cross-examination rarely will you and the witness agree on any point. It is not reasonable to expect collaboration from an opposing witness, especially an expert witness, unless you are watching an episode of Perry Mason. Not only does Perry Mason get the witness to agree with his story, but also, his cross-examination breaks the witness into confessing about the murder and to all future murders in upcoming episodes.

Now, perhaps the question in your mind is “why is cross-examination all about story telling?” I suppose the honest answer is that cross-examination is not all about story telling. It is anything you want it to be, but a successful cross-examination is all about story telling. You see we cannot lose sight of our audience, the jurors, nor can we lose sight of how jurors individually and collectively learn and process information during a trial.

Picture yourself in the courtroom staring at the jury box. The jury is sitting there, six or twelve people, selected to hear your case presumably because they are open minded, have never heard of your case, or have no opinion about your case. (If you are picturing a DUI case, then the jurors in the jury box are the ones left because you ran out of peremptory challenges and the court would not grant all of your challenges for cause to keep you from busting the panel.) When those six or twelve people get together in that jury room something magical happens. Make no mistake about it, the jurors might be ignorant about the law and court procedure, but collective they become “super-human.” Collectively, they are the smartest people in the courtroom. They pool together their experiences, knowledge, perceptions, commons sense, and feelings. This matters when you are asking them to follow you all the way to a not guilty verdict (oh, those sweet words.)

For example, the jury’s “super-human” quality allows them to discern lawyer tricks quicker then a blink of an eye. So, a “smart” cross-examination might result in the witness apparently saying the right things, but the jury will reject the examiner’s excellent work because they perceived the examiner’s approach to be phony or manipulative. The jury will then assume that the witness’ answers were the result of shrewd lawyer tricks and not the truth. So, the object of cross-examination is to test the truth of the opponent’s story against yours. This is what jurors expect to happen during cross-examination.

There is another reason why cross-examination is all about story telling. Jurors do not remember verbatim the witnesses’ answers. They do, however, remember stories. This is true of any human. Joshua Karton, an accomplished actor and jury consultant, says that less than 7% of communication comes from spoken words, 38% comes from voice (tone, inflection, etc.,) and 50% comes from visual stimulation (eye contact, movement, images, etc.) The rest is perception and or interpretation by the listener. This means that jurors learn very little about the truth of any case from the actual words spoken in trial.

A jury, even one with super-human quality, is handicapped. We all know for ourselves that learning through our ears is very difficult. In fact, must of the learning we do is visual, and as lawyers, we do must of it by reading. Therefore, the most effective way to communicate through spoken words is the use of stories. This is the only way I know to meaningfully overcome the jury’s handicap. Stories allow the listener (the jurors) to be engaged in an intimate way, invoking emotion, mental pictures, feelings, etc.

This brings me back to my point. Cross-examination is all about story telling, guiding the jurors to see the truth of your case and inviting them to adopt it as their own. In this way, it doesn’t matter whether or not the witness agrees with you because the jury will remember the story, the true story, you told during cross-examination.

Prosecutors Unfairly Forced the Transfer of a Respected Judge

Francisco Duarte — Thu, 21 Aug 2008 20:01:59 -0800

It is not uncommon for prosecutor’s to flex their muscles to advance their agenda. On the surface, they speak of “justice” as if the term belonged to them exclusively, seemingly forgetting that the term belongs to the citizens and not to the government. Unfortunately, the public has been misled to think that prosecutors only do “justice” and criminal defense attorney’s get the criminally accused off on technicalities. A quick scan of television programs, like Law and Order, seem to wrongly advance such concepts. What is often ignored in the media is that prosecutors from time to time persecute others, forgetting their real, true role in society. A prosecutor is bestowed with the duty to serve the public in general. This means that a prosecutor should not prosecute without just cause, should exercise reasonableness, and conduct all of its dealings honorably and fairly.

However, this month the King County Prosecuting Attorney’s Office flexed its muscle against a respected senior jurist, Judge Peter Nault of the King County District Court. The prosecutors forced his transfer by refusing to have Judge Nault preside over their cases. They claim that Judge Nault has failed to follow the law. A high-ranking official within the prosecutor’s office said, “Nault’s rulings also have involved other issues, such as sentencing, where mandatory minimum terms were not imposed, and evidentiary matters involving the admissibility of evidence.” Seattle Times, August 14, 2008.

These remarks are unfair and represent a departure from the ethical duties of a prosecutor not to make disparaging remarks about a judge. Behind all of this is the prosecutor’s dissatisfaction with Judge Nault’s independence. Prosecutors are used to getting their way and when they encounter an independent judge they have tantrums. Prosecutors realize that elected judges are vulnerable at election time when they are not endorsed by law enforcement agencies. It takes a strong independent judge to overcome the attacks from special interests groups, like prosecution advocates.

In this instance, the prosecutor’s office had a choice to make. They could either respect Judge Nault’s independence (accepting the fact that a healthy system requires checks and balances among the branches of government), or refuse to have their cases heard by Judge Nault, advancing disparaging remarks about his judicial conduct. Obviously they chose the latter. Sadly, Presiding Judge Barbara Linde, a former King County Prosecuting Attorney, decided to remove Judge Nault from his assigned post, acquiescing to the prosecutor’s pressure.

An independent judiciary is necessary for the preservation of justice. Judges are not elected or appointed to rubber stamp the prosecutor’s desires, actions, or will. Rather, a judiciary is there to ensure that the public is provided with a fair system. There are times when fairness requires a judge to make unpopular decisions, contrary to the wishes of prosecutors, such as in the recent rulings around the state of Washington suppressing the results of breath tests in driving under the influence (DUI) cases. The breath test evidence was tossed out of court due to governmental malfeasance and ethical lapses at the state toxicology laboratory. Why blame the judges for the misconduct of prosecutorial agents? Is a notch on the belt more important than fairness and integrity? I hope not!