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Prosecutor's Discretion to Seek the Death Penalty

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The Washington Supreme Court has reversed another trial judge who overrreached in second-guessing the prosecutor's decision to seek the death penalty.  In most states, this would be an executive decision not directly reviewable by the judiciary at all, although there may be other mechanisms for a trial judge to preclude the death penalty before trial.  The case is State v. Monfort, 88522-2, Nov. 14, 2013.  See also prior post on the McEnroe case.  The conclusion of yesterday's decision is:

We make four holdings. We hold that a county prosecutor may consider the facts of a crime as a mitigating circumstance or lack thereof under RCW 10.95.040(1). We hold that a county prosecutor does not have to complete an exhaustive investigation of mitigating circumstances before filing a death penalty notice. We hold that the county prosecutor in this case properly exercised his discretion to file a death penalty notice. And we hold that the trial court improperly intruded upon that subjective determination when it held the prosecutor to a higher standard. Accordingly, the death penalty notice against Monfort is reinstated, and the matter is remanded to the trial court for proceedings consistent with this opinion.

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