Former King County prosecutor says new rule gives judges too much power to dismiss cases

A new rule was approved by the Washington State Supreme Court that allows judges to dismiss cases they decide are unjust, “The Jason Rantz Show” on Seattle Red reported July 22.

Former Senior Deputy Prosecuting Attorney at the King County Prosecutor’s Office, and now Instructor for the Washington State Criminal Justice Training Center, Scott O’Toole, believes Criminal Rule 8.3 “violates separation of powers” and “completely overrules the case law that’s been in existence for at least 40 years.”

“You don’t have to reason why this is a good idea, because there’s no case law that actually supports this. It’s just a brand new rule that we’ve now invented,” he said on “The John Curley Show” on KIRO Newsradio Monday.

He explained that Criminal Rule 8.3 gives judges more personal leeway.

“What the new rule now allows is a very, very discretionary, arbitrary standard for trial judges,” O’Toole said. “In fact, there’s no standard at all to limit the judge’s discretion. It renders Criminal Rule 8.3 dismissal totally subjective.”

The impact of Criminal Rule 8.3

He said the rule allows judges to dismiss a case in the interest of justice, such as government misconduct by law enforcement or the prosecutor’s office. However, in the past, the rule was only used for extreme cases.

“For example, if the prosecutor were to not disclose exculpatory information, that type of thing, to the defendant, depriving the defendant of a fair trial — that could be a basis for dismissal,” O’Toole explained. “But in the past — and the precedent for decades, going back at least 40 years — is that dismissal under Criminal Rule 8.3 is what’s called an extraordinary remedy, and you only grant it where there’s been actual prejudice, or some actual negative effect on a defendant’s right to a fair trial. Short of that, there is really no basis to ever, historically, have granted a dismissal.”

Judges should consider several factors in a case, he added, such as how serious the offense is and the circumstances surrounding it, how dropping charges would affect the community, and how dismissing the case would affect public judgment of the judicial system.

However, O’Toole said the catch-all is that, in addition, the court can now consider any other information it believes is relevant.

“So what happens if now you get a case in front of a superior court judge, and the defense attorney says, ‘Your Honor, I think in your discretion, you should dismiss this in the interest of justice. And what you need to know is, the charging of a particular group of defendants, whether by race or ethnicity or sexual orientation, is overrepresented in these cases, that shows inherent bias and prejudice against that group.’ That’s in the interest of justice, and that would give you the basis,” O’Toole explained.

Listen to the full conversation below.

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