Jerome Joseph Earl was convicted in 1994 of two counts of Rape of Child in the First Degree. The year before, Mr. Earl's niece had complained that he had raped her and her cousin, Earl's daughter. The complaint concerned events that had occurred in 1989, when the little girls were 5 and 4, respectively. The best evidence the State had in its possession was that the rapes took place at the same time with both girls present in Mr. Earl's bedroom.
On June 1, 1993, Pierce County Prosecutor's Office charged Mr. Earl with one count of Rape of Child in the First Degree, alleging that he had raped his niece during a two-month period in 1989. On the day of trial, some nine months later, the prosecutor moved to amend the information to add a second count of Rape of a Child in the First Degree, alleging that Mr. Earl had also raped his daughter during the same charging period. Mr. Earl's attorney objected on the basis that Earl was entitled to (1) fair notice of the charges; (2) a speedy trial; and (3) an adequately prepared defense. Superior Court Judge Thomas Sauriol overruled the defendant's objections and allowed the amendment of the Information. Earl then moved for a continuance and signed a Speedy Trial Waiver. Trial took place, approximately three weeks later.
That scenario is an all too common one for defense attorneys who are beginning trial, not just in sexual assault cases, but also in other types of felony and misdemeanor cases. It has been the practice in Pierce County that should a defendant not choose to take advantage of the State's plea offer, the prosecutor will "amend up". That is, he will add charges or increase the severity of the felony charges that have already been filed and it has been just as routine for the Superior Court's of Pierce County to grant the State's motion to amend within days of the date set for trial.
In State v. Earl, 18220-3-II (Slip Op., September 10, 1999), Division II of the Court of Appeals took issue with this practice. In overturning Mr. Earl's conviction as to Count I, Child Rape in the First Degree, the Court stated, ". . . Earl was compelled to choose between his right to effective representation of counsel and his right to a speedy trial. The State acted unfairly and unreasonably by attempting to amend the information on the day of trial and Earl was prejudiced as a result." The Court found that because the State, without any real excuse, delayed filing the Amended Information until a point when such action would compel Mr. Earl to seek a continuance, the resulting period of delay was not excluded in calculating the time elapsed before trial under CrR 3.3. Because the speedy trial clock was not tolled for Mr. Earl's last continuance, Division II concluded that the speedy trial Period had expired. As to Count II, the Prosecutor had attempted to left the late amendment of the Information by stating, "the State's position is that the activities took place together . . . the testimony that the State anticipated showing is that not only did it happen at the same time, approximately, but in the same bed and with the same method. It is simply something that cannot be divided out." The Court of Appeals found those facts analogous to State v. Peterson, 90 Wn.2d 423, 585 P.2d 66 (1978). In Peterson, the Prosecutor had filed a complaint against the defendant for an assault arising from a bank robbery. The defendant had already pleaded guilty to federal charges and so the State took no action until the defendant moved to dismiss the State's charges. Two years after the original bank robbery, the State filed an Information charging the defendant with two counts of assault involving two victims from the bank robbery. The trial court dismissed both counts on the basis of the Speedy Trial Rule. The Washington Supreme Court affirmed the trial court's ruling, holding that because the second count arose out of the same offense an incident as the first one, the time limits of CrR 3.3 began running for both offenses when the State first filed the complaint against the defendant.
In Peterson, the Supreme Court interpreted the Joinder Rule, (CrR 4.3A) as expressing a preference for a single disposition of all charges. In Earl's case, the State alleged that at some point during a two-month period, Mr. Earl had raped his daughter and his niece while they were in his bed together at the same time. Understandably, Division II was convinced that Mr. Earl's alleged acts were part of the same criminal "episode". Because they should have been charged and tried together, the Speedy Trial period of Count II was dictated by Count I. Therefore, Division II reversed Mr. Earl's conviction for Count II, based on the failure, not only to join the offense, but also to abide by the Speedy Trial Rule. Pierce County Prosecuting Attorney, John Ladenburg, was quoted in the Tacoma News Tribune, describing his deputy's actions as "a mistake". Mr. Ladenburg went on to say, "from now on we will be bringing all of the charges earlier."
From a practical standpoint, the Earl decision is a narrow one in that the dismissal of Count II is based on the fact that the allegations arose from the same "criminal episode" as Count I. An "episode" is defined in the commentary of the ABA Standards for Criminal Justice as "an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series." This would cover the simultaneous robbery of seven individuals, the killing of several people with successive shots from a gun, the successive burning of three pieces of property, or such contemporaneous and related crimes as burglary and larceny or kidnapping and robbery. From a practical standpoint, the Earl decision may just mean prosecutors will bring more charges at the time of defendant's arraignment and then amend down through the use of plea negotiations. But it is interesting to note that Division II seems to have taken away a prosecutor's most effective threat if a defendant does not plead guilty.