State v. Bebb ( 1986 )

McInturff, J.

(dissenting) — While the majority holds the attorney-client privilege protects the communications a pro se defendant makes to his standby counsel, it finds the Superior Court did not deny Mr. Bebb this privilege because it did not enter a formal ruling to that effect. I disagree with this latter finding. In matters which strike at the heart of important constitutional rights, particularly when the rights are those of a pro se defendant, the court should not take such a legalistic approach.

I would distinguish State v. Hoff, 31 Wn. App. 809, 812, 644 P.2d 763, cert. dismissed, 459 U.S. 1093 (1982), which the majority relies upon for the proposition that a pro se must comply with relevant rules of procedural and substantive law. In Hoff, the Superior Court granted a pro se defendant a new trial because, inter alia, his defense was inept. On the State's appeal, the court reversed the order for new trial. Hoff noted at page 812 that a pro se defendant may not remain silent as to claimed errors, and later, if the verdict is adverse, urge his trial objections for the first time in his appeal. In contrast, Mr. Bebb raised the privilege issue in superior court. He simply did not know enough to secure a formal and final ruling on the issue. In these circumstances, I do not believe Hoff should be read to deprive Mr. Bebb of his claimed error.

We, as judges, recognize that although the law provides parameters for decision making, ultimately, each case stands on its own facts. In other words, justice often calls for an approach that does not fit neatly into a general rule. While the general rule is that pro se defendants are subject to the same procedural rules as attorneys, that rule should not be interpreted to avoid addressing issues raised, albeit clumsily, by the defendant in superior court. What is more important, Mr. Bebb's attorney-client privilege which is necessary to protect his constitutional right of access, or the entry of a technical ruling by a court which has already indicated its disposition? It seems to me that in distinguishing between a formal ruling and what occurred here we subject Mr. Bebb to a legal ambush.

The federal courts do not hold pro se plaintiffs to an attorney's standard of practice when judging whether the allegations of their complaints state claims for relief. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594, 596, reh'g denied, 405 U.S. 948, 30 L. Ed. 2d 819, 92 S. Ct. 963 (1972). Similarly, I would not expect Mr. Bebb to have an attorney's understanding of the effective difference between the court's informal opinion and a court's final ruling entered after a motion. All he knew was that the judge did not view his communications with his standby counsel as privileged. Accordingly, he chose not to consult with Mr. Peven on any confidential matters and, as a result, he found it impossible to continue to adequately represent himself. Thus, he was denied his right of access to the courts which effectively denied his right to proceed pro se, and the denial of these rights constitutes reversible error.

I also disagree with the majority's holding that the evidence of the two other suspects, if disclosed to Mr. Bebb, would have created only a mere possibility that the outcome of his trial would have been different.

It is true the evidence on its face is not favorable to Mr. Bebb because the State's experts concluded, in the case of J.L., that his prints did not match the ones at the scene and, in the case of E.H., that the handwriting sample supplied by the police could not be satisfactorily compared to the handwriting on the note. However, the evidence involves opinion testimony upon subjects where experts may disagree. If the prosecutor had disclosed the evidence, Mr. Bebb may have secured expert testimony to contradict the State's experts. With such testimony, a reasonable probability, and much more than a possibility, exists that the result of Mr. Bebb's trial would have been different. The State, in obtaining the conviction, relied heavily on handwriting and fingerprint analysis. Under these circumstances, there is a probability sufficient to undermine confidence in the outcome of the jury's verdict.³ Thus, the Superior Court erred when it denied Mr. Bebb access to the evidence.

Both the prosecutor's failure to disclose the foregoing evidence, and the error relating to the attorney-client privilege prevented a fair trial under our state and federal constitutions.

The judgment of the Superior Court should be reversed and the case remanded for a new trial.

Reconsideration denied September 16, 1986.

Review granted by Supreme Court January 6, 1987.

3 Unlike the defendant in State v. Mak, 105 Wn.2d 692, 718 P.2d 407 (1986), Mr. Bebb sought disclosure of specific evidence. Mr. Mak's request for disclosure was very general: he sought access to 800 pages of internal investigation material of the Seattle Police Department.