April 29, 2008
No Duty To Be Impartial
The Washington Court of Appeals Division I affirmed a conviction for stalking, rejecting the defendant's contention that the trial court had erred in refusing to disqualify the prosecutor's office "because one of its attorneys assisted her victim in obtaining a civil anti-harassment order." Both defendant and victim were county employees and the prosecutors office had acted in its capacity as attorney for the county in assisting the employee-victim. The court rejected the contention that the prosecutors office had violated its duty of "impartiality" under Rule 3.8, finding no such duty under the rule:
"The term 'impartial' appears nowhere in the text of or comments to
RPC 3.8. And the Washington Supreme Court has quoted a United States Supreme
Court decision to explain that prosecutors are neither expected nor required to be
The Court observed that, unlike judges, "[p]rosecutors need not be
entirely 'neutral and detached,'" and may be rewarded for initiating and
carrying out prosecutions in the name of the people. As such, they "are
necessarily permitted to be zealous in their enforcement of the law."
Although the constitution prevents prosecutors from making decisions that
are "motivated by improper factors or . . . contrary to law. . . . [T]he strict
requirements of neutrality cannot be the same for . . . prosecutors as for judges . . . ."
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