Both of King County’s death penalty cases are on hold pending appeal to the Washington Supreme Court. A key issue in both cases is whether the defendants have experienced any hardships that should have required prosecutors to be more lenient.
Defense attorney Todd Maybrown said the fact that two of these reversals happened so close to each other is striking, but that it doesn’t necessarily demonstrate a broader lesson. He said, though, that it’s kind of like the faulty pontoons on the 520 bridge; the public can tend to assume officials know what they’re doing until there’s a problem. Then, he said, people ask, “’Why did we do this and how did we get to where we are?’”
Mitigation Packages
Usually defense attorneys document a client’s hardships in a history known as a mitigation package.
Maybrown said to understand the work involved in developing a mitigation package, it can be useful to imagine that someone were writing your biography. Your biographer would interview people who knew you, seek out original documents, and compile a history. A mitigation package is like a biography of the accused written by defense attorneys and submitted to prosecutors.
Carl Luer represents Christopher Monfort, the man accused of killing Seattle police officer Timothy Brenton in 2009 and wounding his partner. Luer said researching Monfort’s background was difficult, and the timeline was contentious. In September of 2010, prosecutors said they were out of patience, and Luer said the defense chose not to give them anything. “We felt that just trying to hustle up some disorganized summary of what we had at that point would have been counterproductive,” he said.
That lack of information became the basis for King County Superior Court Judge Ronald Kessler to strike down the death penalty in the Monfort case on February 22, 2013. Kessler said in his order that he had assured prosecutors the defense was making progress. But he said prosecutors chose to rely on their own investigation instead. He called that investigation flawed and practically useless.
The prosecutor’s office issued a statement saying the defense refused to provide the necessary information, despite having ten months to do its investigation. Luer said the mitigation package is now almost complete and they plan to give it to prosecutors soon. Monfort plans to plead not guilty by reason of insanity.
Strength Of Evidence
The strength of a mitigation package is the only thing prosecutors are supposed to consider, according to King County Judge Jeffrey Ramsdell. He just struck down the death penalty in the county’s other capital case against Joseph McEnroe and Michelle Anderson. They’re accused of killing Anderson’s family in Carnation in 2007.
Ramsdell said in that case, prosecutors put improper weight on the strength of the evidence in the case in choosing to seek the death penalty. He said they should have focused only on whether the two deserved leniency for any reason.
The King County Prosecutor's Office responded in its appeal that Ramsdell’s decision intruded on prosecutors’ authority and discretion.
John Ladenburg, the former Pierce County executive, has worked on death penalty cases as a prosecutor and a defense lawyer. He said on the one hand, “the judge may well be wrong and the court may not have that authority under Washington law, to throw out the prosecutor’s decision.”
But on the other hand, he agrees with the judge that strength of evidence is an odd factor for a prosecutor to weigh in consideration of whether to seek a death penalty.
State Supreme Court To Decide
Ladenburg said when he was Pierce County prosecutor, his five or six senior deputies all read mitigating factors presented by the defense team before deciding whether to seek the death penalty. “We’d go around the room,” he said, “saying whether or not we thought it was enough mitigation to mitigate against the death penalty.” He estimates that mitigating factors convinced him not to seek the death penalty two-thirds of the time.
Defense attorney Todd Maybrown said it comes back to the question of how both cases got to the point of having the death penalty thrown out. “Maybe the prosecutors’ argument is, ‘Well, the judges just made a mistake.’ But these are really smart judges who’ve worked on these cases for years and years and years, and they sure think that the prosecutors are the ones who made the mistake.”
The prosecutor’s office has asked the Washington Supreme Court for prompt review of the Carnation cases. It’s expected to appeal the Monfort case as well once the judge’s order is finalized.
The King County Prosecutor’s Office provided documents KUOW requested for this story, and declined to comment.
