WA- Law on ‘predatory’ sex argued

6-15-2008 Washington:

A former Tacoma elementary school teacher accused of having sex with a student wants a law under which she’s charged declared unconstitutional, claiming in part that it wrongly curtails the powers of the prosecutors pursuing the case against her.
In a motion filed by her attorney last month, Jennifer L. Rice asked a judge to dismiss a special allegation that classifies one of the crimes she’s charged with as “predatory.”

That designation – required when a teacher is accused of certain sex crimes – invokes stiff sentencing requirements: a minimum term of 25 years or the high end of the standard sentencing range, whichever is longer. In Rice’s case, that’s the high end: 261/2 years.

Public defender Melanie MacDonald argued that the law should be struck down, saying it improperly usurps the discretion of local prosecutors by requiring them to file a certain charge in a certain situation.

Pierce County deputy prosecutor Grant Blinn disagreed.

In his motion, Blinn argued that the Legislature is within its rights to prescribe how certain crimes are charged and resolved.

The dispute is scheduled for arguments Tuesday in Superior Court.

Rice could shave 61/2 years off her potential sentence if she’s successful in having the law declared unconstitutional. The standard range for her without the predatory allegation is 20 years to 261/2 years.

She still could get a longer term in prison if convicted, should Blinn request and a judge agree that she receive a sentence beyond the standard range. Rice also is trying to head off that possibility.

Rice, 32, is charged with 13 crimes. Eleven of the charges allege that she sexually abused a 10-year-old boy whom she taught at McKinley Elementary School last year. The remaining charges stem from alleged sexual behavior with a teenager whose relationship to Rice hasn’t been disclosed.

Prosecutors contend in charging documents that Rice – a married mother – pursued a relationship with the 10-year-old that culminated with her taking him from his home last summer and driving him to a highway rest stop outside Ellensburg, Kittitas, County, where they had sex.

Rice has pleaded not guilty. Her trial is set for Wednesday.

At issue Tuesday will be RCW 9.94A.836. Passed in 2006, the law states that prosecuting attorneys “shall” file the predatory allegation under certain conditions, including when a teacher is charged with first-degree child molestation of a student.

Rice is charged in Count IV with first-degree child molestation, and prosecutors allege the crime was predatory under the provisions of 9.94A.836.

She is thought to be the first person in Pierce County and one of a few in the state charged under the law, which passed the Legislature by a wide margin. Lawmakers said the law was necessary to protect children and other vulnerable people from sex offenders.

MacDonald argued, among other things, that lawmakers overstepped their authority by mandating that prosecutors must add the predatory allegation against all teachers charged with first-degree child molestation against a student.

Case law establishes that prosecutors have broad discretion to decide which crimes should be filed in which cases, MacDonald argued in her pleadings.

“While the Legislature has the power to create new crimes such as first-degree child molestation committed by a teacher against a student, the prosecutor, not the Legislature, has the discretion to determine when a defendant should be charged with such a crime,” she wrote.

In his reply, Blinn wrote that MacDonald has it all wrong.

The deputy prosecutor cited other case law that found that “judicial and prosecutorial discretion may be lawfully limited by the Legislature.”

That’s backed up by the state constitution, Blinn added.

“The Washington Constitution therefore provides that the Legislature shall prescribe the duties of the prosecuting attorneys,” he wrote. “The Legislature in this case has done exactly what the constitution requires.”

MacDonald also argued that the law violates Rice’s Sixth Amendment right to a jury trial because it contains no provision to empanel a jury to make a determination on the special predatory allegation should Rice plead guilty to the underlying charge.

Blinn countered that the predatory allegation is part of the underlying charge and that Rice has the right to plead to the entire charge or take her chances at trial.

“The defense argument … is that they have a right to plead guilty to some elements of the crime and not others,” Blinn said. “If that were the case, each defendant would retain the ability to plead guilty only to a lesser included offense at any stage of the proceedings, and the state would then be unable to proceed on the greater charged offense.” ..News Source.. by Adam Lynn