Now isn’t that Special!

-special inquiry proceedings

and the state’s duty to disclose discovery

By Lance M. Hester; Sept 2001

     A recent situation posed the following dilemma:  Our client faced several felony charges for crimes alleged to have occurred in 1998.  He wasn’t charged until late 2000; and the trial was set to begin in mid August 2001.  Exactly one day before trial one of the super-sharp and stellar paralegals from our firm, Le Ann, learned that the client’s case was once subject to Special Inquiry proceedings.

     NO discovery regarding Special Inquiry proceedings had been received.

     This set the stage for a very unique set of circumstances that that had only 24 hours in which to act.  Most attorney’s know very little about Special Inquiry proceedings.  In fact, in the past 30-plus years our firm has existed, no more than 10 cases were recounted where Special Inquiry proceedings occurred.  It would not surprise me if I were to learn that most Superior Court judges are unfamiliar with the  proceedings and the statutes that governs them.

     Special Inquiry proceedings are governed by RCW 10.__.  In sum, it provides the following:

·         Special circumstances warrant the proceedings, which are in many ways akin to grand jury proceedings,

·         Witnesses and participants are sworn to secrecy, in fact, they may not reveal the fact of having been involved,

·         Evidence is compiled, and rulings (typically regarding the existence of probable cause) result,

·         The proceedings have been used to a great extent for bringing criminal charges against government officials,

·         A mechanism exists, by statute, for a participant to lift the oath of secrecy in order to satisfy an order of the court.

     In the experience of our firm (including a case which was tried this summer that was initiated by Special Inquiry proceedings), as a response to a generic demand for discovery, the prosecutor’s office traditionally facilitates lifting the oath of secrecy and provides all records, including transcripts, of those proceedings.  The basic logic is that CrR 4.7 is a court rule that orders the prosecutor to provide all materials related to the prosecution of the case.  Because of the unique and extremely secret nature of Special Inquiry proceedings, defense attorneys are not in a position to know that such proceedings occurred.  Therefore, the prosecutor’s office is in a very unique situation that has both a Court Rule and a Rule of Professional Conduct requiring it to divulge the otherwise unknown information.  In fact, a specific request in an Omnibus Application arguably wouldn’t address the issue because the fact of the occurrence of the proceedings is not to be divulged without the oath of secrecy lifted.

     My situation resulted in my motion to dismiss for a violation of CrR 4.7.  Importantly, my client’s speedy trial waiver ran on the day of trial and he wasn’t even slightly interested in waiving it further.  The infamous “Hobson’s Choice” existed.  I believed my client was in a position to either have to choose between (a) his right to a speedy trial, or (b) his right to be represented by counsel sufficiently prepared for trial.  

     The prosecutor resisted.  Interestingly (especially to those of you practicing in a county on the West Sound somewhere between Pierce, Jefferson, and Mason), it represented to the court, on the record, that it’s office has a “policy” of never divulging the record resulting from a Special Inquiry proceeding.  It’s claim, therefore, seemed to be that my situation was the only one where anybody had ever suggested it must divulge these discoverable materials.  The judge made it clear that his ruling on my motion to dismiss would depend on how long it would take the State to respond to this discovery request.  Fortunately for the State, the entire materials were readily available for duplication.  Thus, within a few hour time span, the oath of secrecy was lifted by the judge who presided over the Special Inquiry proceedings, affidavits, supoenas, and 9” of materials were turned over to me. 

     Unfortunately the fulfillment of the discovery demand meant that the show went on (with only a several-hour reprieve for me to review the materials) and my client did not get the requested dismissal.

In short, the following is all that can be concluded from my experience.  Le Ann is a legend for sniffing out the issue.  A certain prosecutor’s office needs to rethink its approach to discovery under CrR 4.7.  Those of us who defend need to find ways to determine:  (a) if special inquiry proceedings have transpired, and/or (b) if there is a method for requesting such materials that will guarantee completion of discovery without having to stumble upon this otherwise unknown information.