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High Court considers challenge to Appeals Court elections

OLYMPIA –Washington state needs a new way of electing appeals court judges to comply with the constitutional doctrine of one-person, one-vote, Spokane attorney Steve Eugster told the state Supreme Court Tuesday.

But an attorney for the state countered that’s really a doctrine for picking legislators, not judges, and the way appeals court judges are elected and assigned cases is correct. That phrase isn’t even found in the state constitution, which instead calls for elections to be “free and equal,” Deputy Solicitor General Anne Egeler said.

“There is no right to be heard by the judge you personally elected to the bench,” Egeler said.


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High court throws out murder conviction

SEATTLE (AP) — Washington's Supreme Court threw out a defendant's aggravated murder conviction Thursday because he wasn't present when his lawyers, prosecutors and judge agreed by e-mail to dismiss seven people from his jury pool.

In the 5-4 decision, the justices said criminal defendants have a right to be present at all critical trial stages — including the dismissal of jurors for hardship reasons. Terrance Irby was not there and was not consulted when his legal team agreed with a suggestion by Skagit County Superior Court Judge John Meyer that certain potential jurors be sent home.

“Their alleged inability to serve was never tested by questioning in Irby's presence,” Justice Gerry Alexander wrote for the majority. “Indeed, they were not questioned at all.”

The ruling was the second time that unseated Justice Richard Sanders has been in a 5-4 majority overturning a defendant's conviction since his term expired Jan. 10. Sanders, a libertarian who has often sided with defendants who come before the court, was defeated in his re-election bid by Justice Charles Wiggins last fall.

The remaining members of the court have appointed Sanders as a temporary judge to rule on cases whose oral arguments he heard before his term expired.

Skagit County prosecutors, however, tried to have Sanders kicked off Irby's case this month. They argued that the state Constitution allows only judges who retire voluntarily — not those whose authority has been revoked by the voters — to be appointed as temporary judges. If the remaining eight justices who heard the oral arguments were deadlocked, the case should be reheard with Wiggins sitting, they wrote.

The court unanimously denied the motion in a one-page order.

Irby, then 48, was convicted in 2007 of beating and stabbing an acquaintance, James Rock, two years earlier. He was sentenced to life in prison without the possibility of release.

Skagit County deputy prosecutor Erik Pedersen said the state might ask to court to reconsider its ruling, but failing that, prosecutors will retry Irby.

The jurors were dismissed after filling out questionnaires evaluating their qualifications for serving on a jury, but before the process known as “voir dire,” in which attorneys on each side question them about potential biases or other issues. Six were dismissed for hardship reasons, and one was dismissed after writing that one of his or her parents had been murdered.

The dissenting justices wrote that the hardship dismissals were administrative and well within the purview of the trial court; there was no reason Irby needed to be there for that. But the dismissal of the juror whose parent had been murdered was related to the substance of the case and therefore Irby should have been present, Chief Justice Barbara Madsen wrote.

Nevertheless, she said, that error was harmless: Defendants do not have a right to have a specific juror on their case, and there's no evidence the jury he had was biased against him.

“We should recognize and give effect to this distinction so that the constitutional right of a defendant to be present at critical stages of the trial is protected while at the same time preserving the trial court's discretion to make administrative decisions,” Madsen wrote.

Justices Charles Johnson, James Johnson and Mary Fairhurst signed the dissent.

Justices Tom Chambers, Susan Owens and Debra Stephens joined Sanders and Alexander in the majority.

Irby's attorney, David Koch, called the decision extremely important.

“This reaffirms the right to be present for the selection of one's jury,” he said.