In a recent memo from the Seattle City Attorney's office, Ted Inkley outlined several significant procedural changes for their handling of domestic violence and other assault cases as well as allegations of probation violations. In general, the planned changes are of a positive nature with a potential for a decrease in criminal filings by 3,000 cases annually.
Beginning in January 1997, the Seattle City Attorney plans to initiate a reorganization of their staff into prosecution teams that would be responsible for domestic violence cases from filing through appeal. Essentially, they plan to handle cases more like a private defense firm by assigning a case to a particular attorney who would then track the case as his or her own. Continuity and responsibility are the admirable goals of this system. The plan includes earlier witness contact for better filing decisions to reduce the number of recantations, no show and eleventh-hour dismissals. Another goal is to allocate necessary staff and resources to those cases that are the most serious and/or likely to result in trial and conviction.
The city estimates that the changes will result in 1,300 fewer domestic violence filings per year, but is more optimistic about prevailing in those that are filed.
The city also plans to expand the number of probation revocation proceedings in lieu of filing new charges for selected defendants. Those defendants on probation for non-traffic offenses and who have criminal convictions numbering four or above will initially be the persons most likely to face revocation proceedings in lieu of new charges. The city is careful to exclude from this program firearm and serious no-contact order violations. They will also consider victim safety and restitution issues when making a decision. For the most part, it appears that revocation cases will include assault and domestic violence crimes such as malicious mischief, telephone harassment and other less serious no contact violations and criminal trespass. Allegations that do not rise to the level of independent consumption and treatment non-compliance will still be subject to revocation proceedings.
The goal is punishment and accountability as a far lower financial and human resource cost to the city. The city estimates as many as 1,700 fewer filings per year with this program in effect.
Defense Response to Changes: Both of these procedural changes provide new concerns for the defense bar. First, 3,000 fewer cases will be filed each year and those that are will be tougher cases to win (at least in theory) because the city will have screened out those reluctant complaining witnesses likely to recant or fail to appear. However, the prosecutor assigned to the case will be more familiar with facts and circumstances---and therefore in a better position to engage in meaningful negotiations at pretrial. So, as the old adage goes, one is always a better lawyer when faced with a better adversary. Preparation, thorough investigation, and research should result in fewer unnecessary trials.
One significant area where the defense can now play an active and meaningful role is at the pre-filing stage. This has often been the case in felony cases, but may now be available to the misdemeanor defender. When a client comes to an attorney after the event but before charges are filed that attorney may be able to discuss with the filing prosecutor facts and circumstances surrounding the incident that tend to mitigate or refute the police report. This could result in no filing an/or lesser counts.
The revocation proceedings are more troublesome for the defense. By opting to seek probation revocation, the city reduces the burden of proof, avoids a jury, and ---because at least one prior conviction is in part the jurisdictional requirement for the proceeding---compounds the prejudicial effect of prior convictions. However, there are due process procedural requirements in revocation proceedings that apply. See Seattle v. Lea, 56 Wn.App 859 (1980).
The majority of the statutory scheme concerning these proceedings is contained in RCW 9.95, with revocation and termination starting at RCW 9.95.230. In 1973 the U.S. Supreme Court established the following minimal requirements:
(a) Written notice of the claimed violations of probation;
(b) Disclosure to the probationer of evidence against him or her;
(c) Opportunity to be heard in person and to present witnesses and documentary evidence;
(d) The right to confront and cross-examine adverse witnesses;
(e) A "neutral and detached" hearing officer; and
(f) A written statement by the fact-finder as to the evidence relied on and reasons for revoking probation.
The jurisdictional time expires at the end of the set probationary time which is no longer that 24 months. The court cannot extend jurisdiction without notice and hearing. Timely motions and hearing are mandatory. State v. Alberts Div. I. No. 19610-31 (1988).
The most curious statement in the city's memo is "our office intends to count these matters as separate criminal convictions, since we will not proceed to revocation on a matter unless we believe it would have been sufficient to justify the filing of new charges." The city's view of revocations is really relevant only to their inner-office policy for prosecution. The fact is that courts can neither record nor consider a revocation a separate criminal conviction. Perhaps their statement is a warning that sentencing recommendations after revocation will be commensurate with the number of previous convictions and revocations.
Conclusion: Defense counsel should consider pre-filing and post-conviction advocacy an integral part of the defense where the city has chosen to reallocate their resources to these stages of prosecution. In the long run, these new procedural changes may prove to be advantageous to both parties.
Marjorie Tedrick, Kent, is a former member of the WACDL Board of Governors.