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Independent State Ground Ceiling?

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Today's News Scan reported the reversal of a first degree murder conviction, all because the defendant was not part of an email exchange between the judge, prosecutor, and defense attorney.  The 5-4 decision by the Washington Supreme Court rested on both federal and state constitutional grounds.  But did the inclusion of a state constitutional provision construct an impenetrable ceiling to further review?

Terrance Irby was charged with first degree murder, accused of bludgeoning a man to death.  In the first day of jury selection, the prospective jury pool completed a standard questionnaire submitted to the court.  That afternoon, the trial judge emailed the prosecutor and Irby's defense attorney, indicating that ten jurors had asked to be released for various reasons.  The prosecutor and Irby's counsel agreed that seven of the ten could be released, and the judge notified these jurors that they were excused.  Following a jury trial, Irby was convicted of first degree murder and sentenced to LWOP.  On appeal, Irby claimed he should have been a part of the just-described email exchange, and that his absence from it was a violation of his constitutional right to be present at trial.  The Washington Supreme Court bought it.
The court began its discussion with the well-established principle that a criminal defendant has a right to be present at all critical stages of a trial, a right protected by the due process clause of the U.S. Constitution.  The U.S. Supreme Court has defined a "critical stage" as one in which a defendant's "presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against his charge."  (Snyder v. Massachusetts)  Jury selection has been classified a "critical stage," triggered "at least from the time when the work of empaneling the jury begins," because "[j]ury selection is the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice, . . . or predisposition about the defendant's culpability."  (Gomez v. United States)   In Irby's case, according to the Washington Supreme Court, the empaneling began when the prospective juror's completed their questionnaires, and thus Irby's absence from the email colloquy violated his federal constitutional rights.

The court then turned to the relevant state law, noting that even though Irby had not asked for a separate state law analysis, the court was "nonetheless obliged to examine Irby's state constitutional claim separately because this court has previously interpreted the right to 'appear and defend' [under article I, section 22 of the Washington Constitution] independently of federal due process jurisprudence."  The court opined in a footnote that the state "right to appear and defend," which was triggered "at every stage of the trial when [the defendant's] substantial rights may be affected," was "arguably broader than the federal due process right to be present."  Unlike the federal "critical stage" analysis, the Washington standard did not condition the right on whether or not the defendant's presence could have had an effect on the proceeding, but rather on the chance the defendant's substantial rights may be affected.  And because the email exchange was "unquestionably" a stage of trial at which Irby's "substantial rights may be affected," his state constitutional rights were also violated.

Will the five Washington justices have the final say?  The U.S. Supreme Court lacks jurisdiction to hear cases resting on adequate and independent state grounds.  But what if a judgment appears to rest on both?

[W]hen . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.  If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.  In this way, both justice and judicial administration will be greatly improved.  If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.  (Michigan v. Long)

It is difficult to determine whether the Washington court relied on the state constitutional "right to appear and defend" separate and independent of the federal due process right to be present, despite the court's assertion that it did just that.  The federal constitutional right analysis spans over five pages, with a fairly in-depth discussion of cases from the U.S. Supreme Court and other jurisdictions addressing the meaning of "critical stage."  The state constitutional right discussion consists of slightly more than a single page, with citations to one state constitutional provision and one Washington case.  As for the independence of the state ground, the court cursorily states that it "has previously interpreted the right" independently of federal jurisprudence, and in a footnote adds that the state right is broader than its federal counterpart.

It appears, then, that the Washington Supreme Court is merely cloaking a federal constitutional issue in state law terms, stripping the state of an opportunity to seek further review.

The dissent says "the majority has not engaged in any meaningful discussion of [the substantial relation] requirement and extends constitutional protection where the reason for the constitutional right is in no way furthered by the extension."

Another thorny issue in this case is the deciding vote in the majority of Justice Richard Sanders, a reputably pro-defendant judge whom Washington voters declined to re-elect last year.  His term expired earlier this month, but he's remained on several cases.  Prosecutors argued the state constitutional provision for the temporary appointment of judges, invoked to keep Sanders on these cases, does not apply because he was removed from the bench by voters rather through voluntary retirement.  Instead, according to the state, the remaining judges on the court should decide the case and, if deadlocked, rehear the case with Sanders's successor.  The court denied the motion in a simple order.  Gene Johnson of the AP has this story.

2 Comments

The disdain for the voters of Washington state is palpable here.

Federalist, I agree. What's worse is that this is actually the SECOND case reversing a criminal conviction by a 5-4 vote that Sanders has been involved with since the voters of Washington State fired him (the other one involved a search/seizure issue).

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