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.

Continue Reading Washington Supreme Court Holds That Prosecutors May Seek The Death Penalty Without An Objectively Reasonable Basis For The Decision

In re Cross [Wash. Sup. Ct. No. 79761-7]

The Washington Supreme Court unanimously held in this opinion that a capital sentence can be predicated on an Alford plea.  The court explained that the “advantage” of entering an Alford plea in a capital case is to preserve the ability to argue in the penalty phase that the defendant’s actions were not premeditated.  But if entering an Alford plea does not allow a criminal defendant to avoid the death penalty, this so-called “advantage” hardly seems worthwhile.  Assuming defense attorneys agree with this assessment, Alford pleas may be both inadvisable and obsolete in capital cases.

Dayva Cross pleaded guilty to killing his wife and two of her daughters in 2001.  When Cross pled guilty, he did so by way of an Alford plea.  In such a plea, the accused technically does not acknowledge guilt but concedes that there is sufficient evidence to support a conviction.  A trial court judge can accept an Alford plea only if it is made voluntarily, competently, and with an understanding of the charge and the consequences of the plea and if the judge is satisfied that there is a factual basis for the plea.

Critical to the Supreme Court’s analysis here, the trial court judge and the prosecutor painstakingly walked Cross through the elements of the crimes of which he was charged, his potential defenses, the rights he was relinquishing, and the punishment he faced.  The trial transcript showed that there was substantial evidence from which a jury could find premeditation and a common scheme and design.  The decision to plead guilty was tactical:  it preserved Cross’s ability to challenge these elements in the penalty phase.
Continue Reading Washington Supreme Court Holds Alford Plea Will Support a Death Penalty Verdict