Prisoners often are forced to become experts in the law's regarding their own cases in order to reach for justice. This article by Azias Ross illuminates the flaws and hypocrisy of WA State Prosecutors. Know your rights - know the fight.
May 19th, 2022 | Azias Ross
PART I: Understanding the laws in WA State
Due process is an essential requirement in all legal proceedings, whether criminal or civil. The fundamental requirements of due process must be followed in every stage of a proceeding to maintain structural integrity. The 5th Amendment to the U.S. constitution states that no one "shall be deprived of life, liberty or property, without due process of law". The 4th Amendment states "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search and seizure, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE BUT UPON PROBABLE CAUSE SUPPORTED BY OATH OR AFFIRMATION..." Our Washington Constitution secures these exact same rights with possibly more protection than the federal constitution at Article 1 § 2, § 3 and § 25.
Thus, before anyone can be lawfully detained in accordance with both state and federal constitutions, there MUST be probable cause. In Washington, since prosecutions are commenced by information, in order to comply with both state and federal constitutions there must be VALID probable cause. Under WA law probable cause is filed according to RCW 9A. 72. 085 - Unsworn statements, certification... Standards for subscribing to an unsworn statement. (1) Whenever under any law of this state or under any rule, order or requirement made under the law of this state, any matter in an official proceeding is required or permitted to be supported, evidenced or established, or proved by a persons sworn written statement, declaration.. etc, "the matter may with like force be supported, evidenced, established or proved on the official proceeding by an unsworn statement, declaration, verification or certificate which:
(a) recites that it is certified or declared by the person to be true under penalty of perjury
(b) is subscribed by the person
(c) states the date and place of the execution: and
(d) states that it is so certified or declared under the laws of the state of Washington.
Traditionally, and in accordance with both state and federal Rules of Evidence (ER) the person making the certification or declaration of probable cause must have personal knowledge of the matters to which they testify (ER 602) i.e., talking with witnesses, collecting evidence, visiting crime scenes etc. Typically an investigating officer such as a detective.
What happens when your prosecuting attorney makes the certification or declaration?
The Undermining of Due Process!
Prosecutors are an advocate for both the victims and the defendants which they charge. They have a duty to protect a defendants constitutional rights regardless of the crime they are accused of committing. WA Rules of Professional Conduct (RPC) 3.7 expressly prohibit a lawyer from acting as an advocate in the same proceeding where the lawyer is likely to be called as a necessary witness.
Does the prosecutor become a witness when attesting to the facts under penalty of perjury in an affidavit?
YES! According to Kalina v. Fletcher, 522 U.S. 118, S Ct. 502, 139 L.Ed. 2d 471, 1997 U.S. LEXIS 7498.
Which was a case involving a King County WA prosecuting attorney who did just that, the United States highest court stated:
"Although state law required an arrest warrant to be supported by either an affidavit or sworn testimony establishing the grounds for issuing the warrant NEITHER FEDERAL, STATE, OR COUNTY LAW MADE IT NECESSARY FOR THE PROSECUTOR HERSELF TO MAKE THE CERTIFICATION" and later stated " making false statements in a certification for determination of probable cause is NOT protected by the doctrine of absolute immunity, AS THE PROSECUTOR IN MAKING SUCH A CERTIFICATION, PERFORMS A FUNCTION OF A COMPLAINING WITNESS RATHER THAN AN ADVOCATE" and again stated " THUS PERFORMS THE FUNCTION OF A WITNESS RATHER THAN AN ADVOCATE" and stated again! " EVEN WHEN THE PERSON WHO MAKES THE CONSTITUTIONALLY REQUIRED OATH OR AFFIRMATION IS A LAWYER THE ONLY FUNCTION HE OR SHE PERFORMS IS THAT OF A WITNESS."
So… when a prosecuting attorney certifies under penalty of perjury and declares that the police reports and investigation conducted by the police agency is true and correct under the laws of the state of WA they cease to function as an advocate and are ONLY operating in the capacity of a witness.
In State v Monday, no. 82736-2 the Washington Supreme Court citing State v. Case, 49 Wn.2d 66, 70-71, 298 P.2d 500 (1956) and quoting People v. Fielding, 158 N.Y. 542, 547, 52 N.E. 497 (1899) said " over 100 years old, Fieldings words bear repeating again:
[A] public prosecutor..... is a quasi-judicial officer, representing the people of the state, and presumed to act in the impartially in the interest of only justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and ask no conviction through the aid of passion, sympathy or resentment. The prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. Continuing in State v. Monday, our Supreme court stated : "It violates our jurisprudence for a prosecutor, a representative of the state, to comment on the credibility of witnesses or the guilt or veracity of the accused"..also stating.." [A]n attorney shall not assert his personal opinion as to the justness of a cause, AS TO THE CREDIBILITY OF A WITNESS...."
When a prosecutor certifies under penalty of perjury in an affidavit of probable cause he or she becomes a WITNESS! but more then that they violate a defendants due process rights!
Whoever makes the affidavit must have personal knowledge.
Aside from the double hearsay, the conflict of interest, and attesting to the credibility of witnesses, victims, and police officers
PART II: Testimony.
A prosecutor who submits an affidavit of probable cause in support of charges violates due process and voids the courts subject matter jurisdiction unless there is some other affidavit to support the charges or arrest that was done in accordance with the law.
My prosecutor not only did this and certified to the affidavit of probable cause under penalty of perjury, but he committed perjury by charging me on 13 felony counts based on his lie!
The jury did acquit me on those charges because there was absolutely no evidence at all to support them but that shouldn't let him off the hook.
Can we accept that it was just a simple mistake? Shouldn't our public officials be held to a higher standard?
I sat in pierce county jail for 22 months before coming to prison (nearly two years!). 17 months before trial, the prosecutor dismissed 4 of the original 30 counts, as well as all the gang enhancements. Obviously he knew there was no evidence for them but yet, STILL kept the 13 counts he lied about!! If it weren't for the jury doing its due diligence I would have been convicted on fraudulent charges.
We know all too well how government officials abuse their positions of power. A prosecutor who controls your bail, if you receive a deal or not, what your charges are even going to be, and takes you to trial SHOULD not be permitted to handle a case that he or she became a witness in!
It’s not only a conflict it VIOLATES DUE PROCESS THROUGH AND THROUGH. Since the Kalina v. Fletcher case, King county has its affidavits done by the detectives but in Pierce county this is still the routine practice!
For any one who thinks this is just the way they do it… its NOT!
In Kalina v. Fletcher the U.S. supreme court also said "Even though the prosecutor may be following a practice that has been routinely employed by the prosecutors colleagues and predecessors, the practice is NOT prevalent in other parts of the country and is NOT mandated by law in the county." Going on to say that attorneys are strongly encouraged not to run the risk of being an advocate in the same proceeding where he or she could be likely called as a witness citing RPC 3.7.
So it’s clear…a prosecutor cannot and should not be BOTH an advocate and a witness in the same proceeding yet in Pierce County this is the "routine practice."
It is WE the people who must hold them accountable and WE the people who have to demand and urge the changes to these kinds of corrupt practices that benefit neither the public, nor the victims, nor the defendants.
The true question is...Who do we call when the law breaks the law????
I'm am not an attorney but I don't believe we need to be, or have to be, to understand what's just and what is not… what is lawful and what is awful!
Too often we are made to feel as if our logic is off, as if our interpretation is inaccurate, and I sincerely believe that it’s a ploy to keep us from exposing the truths that resonate in our hearts, that we can clearly see with our two eyes.
If this piece interests you READ the cases I cited. READ the statutes and the rules I cite and dig for yourself. Check out the amendments of the constitution both state and federal I provided and reach your own conclusion.
After all, there is no greater validator than experience!
In peace and solidarity always!
-Azias Ross