http://www.duiattorney.com/news/7002-bi ... e-re-tried
Bizarre Washington DUI Case to be Re-Tried
Police officers who have done more than a few DUI investigations hear a lot of strange excuses, but "It wasn't my fault; a meteor hit me!" has to be among the rarest. Stranger still, for Richard Tracer of Washington, it was true; a meteor did strike his car and cause him to crash into another car, though he had also been drinking. On top of that, the attorney who handled the case against Mr. Tracer was later found not to have any authority to act as a prosecutor. Such were the unusual (to say the least) facts that came before the Washington Court of Appeals last week under the name State v. Tracer, No. 37812-4-II (Wash.App. 2010).
On May 25, 2007, Mr. Tracer collided with another car after his own car was struck by a meteor. Everyone agreed that the meteor had been the cause of the accident even though Mr. Tracer had been driving with a BAC of 0.13. Mr. Tracer is the son of a local sheriff's deputy and so the local county attorney's office was disqualified from prosecuting his case. The court appointed a special deputy prosecutor, Ms. Vingo, who offered to let Mr. Tracer plead guilty to DUI instead of vehicular assault. Ms. Vingo did not show on the day of the trial, however, so the court appointed another special deputy prosecutor, Mr. Harrison. Mr. Harrison was a local defense attorney who just happened to be in the courtroom on an unrelated matter. The trial court instructed him to accept Mr. Tracer's guilty plea on the same terms that had originally been arranged. Mr. Harrison did so and the court sentenced Mr. Tracer to a year in jail, with all but 5 days suspended if he met his financial obligations.
The next week, the State filed an emergency motion to reconsider the resolution of this case because the trial court did not have the authority to appoint any special deputy prosecutor, and certainly not a defense attorney who had a conflict of interest in representing the State. The State also asserted that Ms. Vingo had not actually offered to reduce the charges because a Washington statute (RCW 9.94A.421) would have required her to inform the victim first, and she did not. At the same time, Mr. Harrison filed a request for $1,000 compensation for his services as special deputy prosecutor (5 hours, most of them after the fact spent on the phone to the State Bar Association ethics hotline, times his usual rate of $200/hour). The State objected to this fee because it considered his performance deficient and because the statute that allowed Mr. Harrison to claim a fee (RCW 36.27.030) took the money from the permanent prosecutor's salary and so she should be entitled to due process before having her pay reduced.
The trial court ruled that RCW 36.27.030 required only that "any prosecuting attorney" be chosen and Ms. Vingo met that criterion. Since she had failed to appear, the court was permitted to select another attorney. The court also granted Mr. Harrison's fee request, but at the rate of $65/hour, as that was the customary rate paid to appointed counsel. The court ruled that the county, and not the permanent prosecutor, would pay Mr. Harrison.
The State appealed, and the Court of Appeals heard the case over Mr. Tracer's objection that to do so would place him in double jeopardy. As the appeals court pointed out, though, double jeopardy only applies when a defendant has been tried on an offense, been found not guilty of that offense, and the same prosecuting entity then charges the same defendant with precisely the same offense. In this case, the original charge of vehicular assault was never prosecuted because the court instructed Mr. Harrison to dismiss it.
The Court of Appeals ruled that the trial court was permitted to appoint Ms. Vingo but not Mr. Harrison. The statute in dispute (RCW 36.27.030) provides as follows:
When any prosecuting attorney fails, from sickness or other cause, to attend a session of the superior courts...the court or judge may appoint some qualified person to discharge the duties of such session, and the appointee shall receive a compensation to be fixed by the court, to be deducted from the stated salary of the prosecuting attorney.
According to the court, Ms. Vingo, a deputy prosecutor, was indeed "any prosecuting attorney," but Mr. Harrison was not a "qualified person" because he represented criminal defendants at the same time and thus had a conflict of interest. Interestingly, this fact was not lost on Mr. Harrison, who recalled that the trial judge's suggestion had, at first, been made in jest and that he had replied that he couldn't serve because he had a conflict.
The appellate court agreed with the State that the trial court had violated basic separation of powers principles when it instructed Mr. Harrison to accept the plea agreement. The decision of what charges to file, the court ruled, is exclusively the province of the prosecuting attorney, a member of the executive branch. State v. Lewis, 797 P.2d 1141 (1990). The court therefore reinstated the vehicular assault charge against Mr. Tracer because the trial court's actions in having it dismissed were unauthorized and thus void. The appeals court also denied Mr. Harrison's fee request completely.
Mr. Tracer argued that even if the appointment was improper, Mr. Harrison was still acting as de facto prosecutor and so the State should be bound by his acts. The case of State v. Smith, 756 P.2d 1335 (1988), defined a de facto public official as one who is "in actual possession of the office, exercising its functions and discharging its duties under color of title." The trial court did appoint Mr. Harrison, and he did act as the prosecutor, so this argument was not totally unreasonable. However, under RCW 2.44.020, a court may choose not to impose upon a party the acts of an attorney who represents the party without that party's permission. Because Mr. Harrison had no real authority to represent the State, the appeals court ruled that the State did not have to be bound by his actions.
The Court of Appeals noted that none of the flaws in the case against Mr. Tracer were his fault, but ruled that it had no more authority to allow the trial court's invalid actions to stand than the trial court had to do as it did in the first place. Allowing the trial court's ruling to stand on the basis of its perception of fairness, the appeals court wrote, would only do further harm to the separation of powers principle. The appellate court vacated the trial court's ruling and sent the case back to the trial level. It specified that a different trial judge should handle the vehicular assault charge, which is an unusual step for an appeals court to take, but quite possibly for the best. Overall, one cannot help but be struck by the parallels between the way this case turned out and the original accident itself: a rock, a hard place, and Mr. Tracer between.
