State v. Ladenburg
| Decision Date | 19 November 1992 |
| Docket Number | No. 14338-1-II,14338-1-II |
| Citation | 840 P.2d 228,67 Wn.App. 749 |
| Parties | The STATE of Washington, Respondent, v. Robert Leslie LADENBURG, Jr., Appellant. |
| Court | Washington Court of Appeals |
Thomas D. Dinwiddie, Thomas D. Dinwiddie & Assocs., Tacoma, for appellant.
Norm Maleng, Pros. Atty., and Greg R. Hubbard, Asst. Chief Deputy, Seattle, for respondent.
Robert Leslie Ladenburg, Jr. appeals his juvenile court conviction on a charge of second degree robbery, contending that the trial court erred in denying his motion to disqualify the Pierce County Prosecuting Attorney and the prosecutor's office from handling the prosecution of charges against him. He claims, in addition, that his conviction should be reversed because the Pierce County Prosecutor's office violated the appearance of fairness doctrine by not excusing itself from the prosecution of the case. We affirm.
Robert L. Ladenburg, Jr. is the nephew of Pierce County Prosecuting Attorney, John Ladenburg. Ladenburg, Jr. was charged in Pierce County Juvenile Court with one count of second degree robbery. The State alleged that Ladenburg, Jr. struck a person by the name of Paul Anderson and then took money from him.
On the morning of the day Ladenburg, Jr. was to go to trial on the charge, he filed a motion to disqualify the Pierce County Prosecutor's office from prosecuting the case against him. He alleged that it would be a conflict of interest and a violation of the appearance of fairness doctrine for anyone in that office to handle the prosecution because the elected Prosecuting Attorney, John Ladenburg, was his uncle. The State of Washington, represented by a deputy in the Pierce County Prosecutor's office, resisted the motion. It was denied.
Ladenburg, Jr. was convicted of the charge. 1 He was sentenced to a standard range sentence of 52 to 65 weeks.
On appeal, Ladenburg, Jr. contends that (1) the trial court erred in not disqualifying the Pierce County Prosecutor's office because of the prosecutor's family ties to him, and (2) that the refusal of the prosecutor's office to excuse itself from the case constituted a violation of the appearance of fairness doctrine, thus necessitating reversal.
State v. Huson, 73 Wash.2d 660, 663, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096, 89 S.Ct. 886, 21 L.Ed.2d 787 (1969). If a prosecutor's interest in a criminal defendant or in the subject matter of the defendant's case materially limits his or her ability to prosecute a matter impartially, then the prosecutor is disqualified from litigating the matter, and the prosecutor's staff may be disqualified as well. See generally State v. Stenger, 111 Wash.2d 516, 520-23, 760 P.2d 357 (1988).
The issue here is whether the existence of an uncle-nephew relationship between the Pierce County Prosecutor and the defendant, Ladenburg, Jr., materially limited the prosecutor's ability to prosecute the matter impartially, thus, requiring his disqualification of him and his office. No Washington cases have addressed the issue of whether prosecuting one's relatives is a per se conflict of interest requiring disqualification. Furthermore, the Washington Rules of Professional Conduct do not speak directly to the issue.
Ladenburg, Jr. relies primarily on the case of State v. Stenger, supra, as support for his argument that the trial court erred in not granting his motion to disqualify the prosecutor's office. In that case, our Supreme Court held that the Prosecuting Attorney of Clark County and his entire staff were disqualified from prosecuting charges against a defendant who had once been represented by the prosecuting attorney in another criminal matter, prior to the prosecuting attorney's assumption of that office. In Stenger, the court focused its attention on Rule of Professional Conduct 1.9(a), which specifically provides that a lawyer who has formerly represented a client in a matter shall not thereafter "[r]epresent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client...." Stenger, 111 Wash.2d at 520, 760 P.2d 357.
The defendant in Stenger was charged with aggravated first degree murder. When such a charge is leveled the prosecuting attorney has the discretion to seek the death penalty. However, before a prosecutor may ask for the death penalty, he or she must have reason to believe that there are not sufficient mitigating circumstances to merit leniency. Stenger, 111 Wash.2d at 521, 760 P.2d 357. In making its determination that the prosecutor should be disqualified, the Supreme Court stressed the fact that the prosecutor may have obtained confidential information during his former representation of Stenger which could be used to Stenger's detriment in the present case. Stenger, 111 Wash.2d at 521-22, 760 P.2d 357. Specifically, it concluded that information acquired by the prosecutor in the former case was so closely interwoven with the prosecutor's exercise of discretion in seeking the death penalty, that the prosecutor should be disqualified from participating in the present prosecution against the defendant. Stenger, 111 Wash.2d at 522, 760 P.2d 357.
The court in Stenger went on to say that the Prosecuting Attorney might well screen himself or herself off from the prosecution of such a case, thus, making it unnecessary to disqualify the entire staff of the office. Stenger, 111 Wash.2d at 522, 760 P.2d 357. They concluded, however, that no such screening had taken place and, thus, the prosecuting attorney and his entire staff were disqualified from participating in the case.
The situation in Stenger is materially different than the situation with which we are here presented. First, this is not a death penalty case and, thus, the prosecuting attorney's office need not determine if there are mitigating circumstances which merit leniency. Second, as we havealready noted above, no rule of professional conduct is implicated by the Pierce County Prosecutor's office handling of the prosecution of charges against the Prosecuting Attorney's nephew. Third, there is no suggestion that the prosecutor of Pierce County had any prior professional relationship with Ladenburg, Jr. wherein he obtained confidential information that he could use to Ladenburg, Jr.'s disadvantage. Fourth, there is no indication that Prosecuting Attorney Ladenburg actively participated in this case. Indeed, there is nothing in the record to suggest that the prosecuting attorney even knew that his office had charged his nephew. While one might infer that he did know, it is worth noting, as the trial court did, that the Pierce County Prosecutor's office is quite large. The office, according to the record, employs approximately 87 attorneys. Finally, there has been no showing that the defendant was actually prejudiced by the fact that his uncle is the elected Prosecuting Attorney of Pierce County. The prosecution of the charges against Ladenburg, Jr. was handled by a deputy prosecutor who had no family ties to Ladenburg, Jr. and there was no evidence that the deputy's judgment regarding the case was in any way influenced by Ladenburg, Jr.'s familial ties to the Prosecuting Attorney.
Ladenburg,...
To continue reading
Request your trial
-
State v. Finch
...a line of cases out of the Washington Courts of Appeals. See State v. Perez, 77 Wash.App. 372, 891 P.2d 42 (1995); State v. Ladenburg, 67 Wash.App. 749, 840 P.2d 228 (1992). The Courts of Appeals have applied the appearance of fairness doctrine to prosecutors to the extent that they act in ......
-
IN RE THE WELFARE OF M.I.S. v. A.S.
...a fair, impartial, and neutral hearing.'" State v. Tolias, 84 Wn. App. 696, 698-99, 929 P.2d 1178 (1997) (quoting State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992)), rev'd on other grounds, 135 Wn.2d 133, 954 P.2d 907 (1998). In order to find a violation of the doctrine by a ......
-
State v. Tarrer
... ... proceeding is valid only if a reasonably prudent and ... disinterested observer would conclude that all parties ... obtained a fair, impartial, and neutral hearing.'" ... State v. Bilal , 77 Wn.App. 720, 722, 893 P.2d 674 ... (1995) (quoting State v. Ladenburg , 67 Wn.App. 749, ... 754-55, 840 P.2d 228 (1992)). But the party who argues that a ... judge has a bias must support the claim with evidence ... Bilal , 77 Wn.App. at 722. A claim unsupported by ... such evidence is without merit. State v. Post , 118 ... Wn.2d 596, ... ...
-
State v. Tarrer
...a fair, impartial, and neutral hearing.'" State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995) (quoting State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992)). But the party who argues that a judge has a bias must support the claim with evidence. Bilal, 77 Wn. App. at 722. A......
-
What Ever Happened to the Appearance of Fairness Doctrine? Local Land Use Decisions in an Age of Statutory Process
...court officers (e.g., prosecutors and probation officers) for bias against a defendant. See State v. Ladenburg, 67 Wash. App. 749, 753-55, 840 P.2d 228, 231-32 (1992). The focus in this Comment is on land use decision making and related administrative 7. Carolyn M. Van Noy, Comment, The App......