In State v. Monfort, a six justice majority of the Washington Supreme Court emphasized that prosecutors need only make a “subjective determination” about whether a defendant should be executed before filing the notice required to seek the death penalty at trial.  The Supreme Court criticized a trial court for “going beyond the question of whether the county prosecutor had his reasons” and striking a death penalty notice on the basis that the prosecutor’s investigation was inadequate.  Three justices concurred, agreeing that the death penalty notice should be reinstated, but argued that prosecutors must have an objectively reasonable basis for seeking the death penalty.


Christopher Monfort was charged with one count of aggravated first degree murder for the death of a law enforcement officer, along with other crimes.  In Washington, the prosecution may only seek the death penalty if it serves the defendant with a death penalty notice within 30 days of arraignment.  The prosecutor may only file the notice after determining whether “there is reason to believe that there are not sufficient mitigating circumstances to merit leniency.”  Revised Code of Washington 10.95.040(1).

In this case the prosecution offered to extend the 30-day period to six months, requested the defense submit mitigation materials for review in five months, and invited the defense counsel to discuss the decision two weeks before the deadline.  The defense agreed and trial court granted the extension.  The deadline was later extended for another three months.

The defense never provided the prosecution with the results of its mitigation investigation, but did update the court and the prosecution about the investigation’s progress.  Defense counsel explained she was bound to follow the American Bar Association Guidelines for death penalty defense, which require an exhaustive mitigation investigation.  Meanwhile, the prosecution conducted its own investigation through a private investigator, though this investigation did not comport with the ABA defense guidelines.

The prosecution filed a death penalty notice after the nine month extension expired.  The defense moved to strike the death penalty notice arguing: 1) the prosecution has insufficient facts to support the decision to seek the death penalty and 2) the prosecutor improperly considered the facts of the crime in making the mitigation determination when the investigation.

The trial court struck the death penalty notice on the first reason, determining that the prosecution should have waited for the results of the defense investigation rather than relying on the results of its own investigation.  The court rejected the second argument.

Both sides moved for discretionary review by the Washington Supreme Court.


The Court agreed that the prosecution may consider the facts of the crime in deciding whether to seek the death penalty. The court found that the plain language of the statute, the language of related statutes, and case law all supported allowing the prosecution to consider both general facts about the defendant and the specifics of the crime in deciding to seek the death penalty.

Next, the Court reversed the trial court and reinstated the death penalty notice.  The Court held that the prosecution does not have to complete an exhaustive investigation prior to filing death penalty notice.  While defense counsel may be bound to conduct a thorough mitigation investigation at the penalty phase of a capital trial, the Court determined that these guidelines do not apply to a prosecutor at the initiation of the case.

The Court noted that the penalty phase requires the jury to find the defendant deserves death “beyond a reasonable doubt,” but that the prosecutor must only have a “reason to believe” that mitigating circumstances are not sufficient for leniency before filing the death penalty notice.  The Court declined to interpret its prior decision in State v. Pirtle as requiring the prosecutor to seek a certain amount of information before filing the death penalty notice.

On the facts before it, the Court found that the prosecutor had not inflexibly chosen to proceed with the death penalty notice without defense input, but had gone to some lengths to seek information from both the defense and its own investigator.

The Court went further to hold that the prosecutor is under no requirement to receive defense mitigation evidence, even though Pirtle had stated that this is “normally desirable.”  The Court emphasized the prosecutor has the freedom to make a subjective decision whether or not to seek the death penalty and does not require a full mitigation package to inform this decision.  The Court found no statutory requirement that the prosecution follow a checklist or guidelines “which might be put under objective scrutiny” and directed trial courts to simply ask whether the prosecutor “had his reasons” to seek the death penalty.

Concurrence:  Justice Gordon McCloud wrote a concurrence for three justices that agreed to reinstate the death penalty notice on the basis that the prosecutor’s investigation provided a reasonable basis to seek the death penalty.  However, the concurrence strongly rejected the subjective standard advanced by the majority for reviewing prosecution decisions to seek the death penalty.  The concurring Justices argued that even misdemeanor crimes must be supported by the objective standard of probable cause so a reviewable, objective standard was even more appropriate for death penalty decisions.  The concurrence then proposed a procedure to review death penalty notices in the model of the “Knapstad challenge” which allows defendants to argue that the prosecutor didn’t have enough facts to charge the defendant with a crime.


The Supreme Court’s insistence that prosecutors need not follow any objective guidelines in deciding to seek the death penalty is strange, since Washington statute explicitly requires prosecutors to consider whether mitigating circumstances exist.   The Court essentially holds that judges should take the prosecution at its word that “there is reason to believe that there are not sufficient mitigating circumstances to support leniency.”  Prosecutors can come to their “reason to believe” without any investigation and on the facts of the crime charged.  The mitigation clause has therefore been read out of the statute: prosecutors can seek the death penalty by providing notice to a defendant without making any effort to figure out whether leniency is merited.

From a practical perspective, the Supreme Court’s decision clears a major roadblock to death penalty cases by essentially removing all but the lightest judicial review of the initial decision to seek the death penalty.  To the extent that administrative efficiency is desirable in death penalty cases, this decision advances that goal by allowing prosecutors to seek the death penalty without spending the time and money to investigate the circumstances of a defendant’s life.

On the flip side, defense attorneys are put in a bind. They are ethically obligated to fight against the imposition of the death penalty at every stage of the trial.  Unanswered is whether a defense attorney must still spend the time and money to conduct an exhaustive investigation and turn over the complete results to the prosecutor, even though the prosecutor may ignore that evidence at his or her pleasure.  If the defense attorney provides the investigation results, the defense has now weakened its position at trial by providing free discovery about its mitigation case and, potentially, its case for acquittal.  If the defense attorney does not provide the results, he or she may have squandered a valuable opportunity to take death off the table before the case goes before  jury.

In my opinion, the concurrence has the better approach: require prosecutors have a reasonable basis to seek the death penalty and provide a streamlined process for the courts to review the decision when defendants raise a challenge.  One does not need to take a stance on the morality of the death penalty to insist that prosecutors have an objectively reasonable basis to seek the death penalty and be able to articulate those reasons to a court.