Supreme Court of the State of Washington 

Opinion Information Sheet

Docket Number: 82736-2
Title of Case: State v. Monday
File Date: 06/09/2011
Oral Argument Date: 05/11/2010

Appeal from King County Superior Court
Honorable Michael C Hayden

Barbara A. Madsen Concurrence Author
Charles W. Johnson Signed Majority
Gerry L. Alexander Signed Majority
Tom Chambers Majority Author
Susan Owens Signed Majority
Mary E. Fairhurst Signed Concurrence
James M. Johnson Dissent Author
Debra L. Stephens Signed Concurrence
Charles K. Wiggins Did Not Participate
Richard B. Sanders,
Justice Pro Tem. Signed Majority


Counsel for Petitioner(s)
Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104

Brian Martin Mcdonald
King County Prosecuting Attorney
516 3rd Ave Ste W554
Seattle, WA, 98104-2362

Amicus Curiae on behalf of Aclu
Johanna Rowton Pirko
Attorney at Law
632 Nw 81st St
Seattle, WA, 98117-4054

Sarah a Dunne
ACLU of Washington Foundation
901 5th Ave Ste 630
Seattle, WA, 98164-2008

Nancy Lynn Talner
Attorney at Law
901 5th Ave Ste 630
Seattle, WA, 98164-2008


) No. 82736-2
Respondent, )
) En Banc
v. )
Petitioner. ) Filed June 9, 2011
______________________________ )

CHAMBERS, J. -- Kevin L. Monday Jr. was convicted of one count
of first degree murder and two counts of first degree assault stemming from a
shooting in Pioneer Square, Seattle, Washington. We granted review limited
to two issues: whether prosecutorial misconduct deprived Monday of a fair
trial and whether imposition of firearm enhancements violated Monday's jury
trial right. Finding that his trial was fatally tainted by prosecutorial
misconduct, we reverse.
A street musician was playing drums in Seattle's popular Pioneer
Square early one Sunday morning in April 2006. He had mounted a digital
video camera on his equipment. The camera captured a confrontation
between several men, including one in a distinctive, long red shirt. The

State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

confrontation seemed to break up. Then, the red shirted man suddenly pulled
out and rapidly fired a pistol as he walked backward and then as he turned
and ran.
Francisco Green was shot four times. Two other men were also shot,
though both survived. Green died upon arrival at the nearby Harborview
Medical Center.
Once he was home, the street musician, who had wisely dropped to the
ground when the shooting started, realized he had recorded the shooting. He
gave the recording to the police that same day. Shortly after the shooting, a
witness stopped an officer on the street to offer a description of the shooter
and his very recent location. Following that tip, the officer found Antonio
Saunders. Out of Saunders's hearing, the witness confirmed Saunders was
the man he believed had committed the shooting, and the officer arrested
Saunders for violating probation. Ultimately, Saunders told one of the
homicide detectives investigating the murder that he saw Monday fire his gun
at Green. Another witness picked Monday and another man out of a
photomontage as possible shooters. Many of the other witnesses were more
reluctant to cooperate or gave inconsistent responses to investigators. One
witness gave a physical description of the shooter.
Monday was arrested three weeks after the murder. He was wearing a
red shirt and hat that were strikingly similar to the ones in the video. He
initially told the investigators that he had not been to Pioneer Square for
years. After being shown some still shots from the video of people he knew,


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

Monday admitted he had been to Pioneer Square recently, admitted he had
gotten into a fight, and admitted that he heard a gun being fired. He denied
that he had fired a gun himself. When the police showed Monday a picture of
himself in a photographic still from the musician's video, Monday
acknowledged it was him.
Not long afterward, the police suggested that they had found Monday's
DNA (deoxyribonucleic acid) and fingerprints on shell casing recovered at
the scene. This was not, in fact, true. Shortly afterward, Monday began to
cry and said that "I wasn't trying to kill that man, I didn't mean to take his
life." Verbatim Report of Proceedings (VRP) (May 29, 2007) at 32-33.
Police searched Monday's home and found .40 caliber bullet cartridges and a
gun holster. The gun was not recovered.
Monday was charged with one count of first degree murder and two
counts of first degree assault, all while armed with a handgun, and second
degree unlawful possession of a firearm. Trial began in April 2007 and lasted
a month. During his opening statement, Prosecutor James Konat told the jury
that the State takes great measures to ensure that no one is falsely accused or
falsely convicted. Monday's counsel objected on the grounds that the State is
not supposed to vouch for the credibility of its witnesses or its case. Judge
Michael Hayden sustained the objection and stressed that "at no time during
the trial will anyone be expressing their personal views as to the guilt or their
personal views as to the truth-telling of anyone who takes the witness stand."
VRP (May 10, 2007) at 8. The judge also reminded counsel that it was not


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

their place to give their views on the "credibility of a witness or the guilt of
anyone." Id. at 7. Judge Hayden denied Monday's motion for a mistrial. He
invited Monday to submit a curative instruction but acknowledged that
"would simply highlight what was said." Id.
Witness credibility was particularly at issue because many of the
State's witnesses were not enthusiastic proponents of the State's case. For
example, Saunders testified he had only identified Monday as the shooter
because he thought Monday had blamed him. Saunders's former girl friend,
Adonijah Sykes, had also told investigators that Monday was the shooter. On
the stand, she testified that she had lied to police investigators.
During Sykes's second day of testimony, the following exchange took
place between her and the prosecuting attorney:1

Q. . . . . And would you agree or disagree with the
notion that there is a code on the streets that you don't talk to the
A. I mean, that's what some people say. That's what
some people go by.
Q. Well, can you help us understand who these some
people are?
A. I'm saying -- I'm just saying that's how some
people is. Some people talk to the police, some don't.
Q. And you're one of those that don't, right?
A. I'm saying -- well, I don't -- police ain't my friends
or nothing.
. . . .

1 The court reporter transcribed Konat's use of the word "police" as "po-leese." A
different court reporter transcribed the first day of Sykes's testimony and consistently
transcribed the word as "police."


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

Q. Does that mean that you're one of those people
who don't talk to the police?
A. No, sometimes I don't talk to the po-leese. I mean,
they got a question or something to ask me, I answer. I don't
talk to them.
VRP (May 22, 2007) at 19. Monday did not immediately object to either the
prosecutor's line of questioning or his potentially derogatory pronunciation.
The examination continued:

Q. Let me ask you this about your conversation with the po-
When did you figure out that that guy that got shot when
you were on the corner on April 22nd, 2006[,] when did you find
out that he was dead?
A. A couple weeks later.
Q. Really.
A. Yeah.
Mr. MINOR [defense counsel]: Objection, your honor.
Id. at 19-20. The judge asked, "Are you objecting to his tone of voice?" Id.
at 20. When counsel demurred and said he was objecting to the comment
itself, the judge said: "I think you're really objecting to the tone of voice that
he's giving us. And I will ask him to try to ask your questions, let the jury
decide whether this witness should be believed or not." Id. The prosecutor
thanked the judge and continued. Not long after, the prosecutor used the term

Q. And fair to say that you didn't want your boyfriend
to go to jail?
A. No.
Q. Right? And that's one of the reasons that you
stayed away and tried to avoid the po-leese, right?


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

A. I just didn't want to have nothing to do with them.
Q. I mean, to be -- to go back over your testimony
yesterday for just one moment, you never called the police and
told them you saw what happened down there, did you?
A. No. A lot of people was down there didn't call the
Q. That's right. And that's what I was asking you
about, there's a code on the streets that you don't call the po-
leese, right?
Id. at 22-23.
While Judge Hayden was clear that the prosecutor must refrain from
any comments on the credibility of the witnesses, he was not without
sympathy. He noted that "virtually every lay witness has been very reticent
to testify in this case, and the memory of virtually every lay witness has had
significant holes in places where one would not expect that they would have
memory lapses." VRP (May 23, 2007) at 98.
Despite the court's earlier admonishment that it was not the State's
role to vouch for the credibility of the State's witnesses or its case, in closing,
the prosecutor argued:

Seventeen years and eleven months ago yesterday, I
signed on, I signed on to serve at the pleasure of Norman K.
Maleng. I never imagined in a million years I would get to try as
many murder cases as I have in the last 15 years, and I never
imagined I would ever get to try one, a doozy, like this one.
Seventeen years and about ten months ago I started going to
training sessions in the King County prosecutor's office on
Saturday mornings that we just dreaded when we could be
playing golf. . . . And two things stood out for me very shortly
into my career as a prosecutor, two tenets that all good
prosecutors, I think, believe. One is that when you have got a


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

really, really, really strong case, it's hard to come up with
something really, really, really compelling to say. And the other
is that the word of a criminal defendant is inherently unreliable.
Both of those tenets have proven true time and time again over
the years, and they have done it specifically in this case over the
last five weeks -- four weeks.
I never imagined when I signed on to serve at the pleasure
of Norm Maleng, this won't be the last murder case I will try,
but it is the last one I will try under his name. I imagined I
would call eight witnesses who simply will not or cannot bring
themselves to admit what cannot be denied.
VRP (May 30, 2007) at 26-27. The prosecutor contended that Green was
killed "for no reason. Francisco Green got killed because this messed up
American male was trying to prove his macho. He stuck his nose in a fight
that didn't have one damn thing to do with him." Id. at 28. The prosecutor
acknowledged he was being selective in what part of his witnesses' testimony
he wanted the jury to credit. He explained:

[T]he only thing that can explain to you the reasons why witness
after witness after witness is called to this stand and flat out
denies what cannot be denied on that video is the code. And the
code is black folk don't testify against black folk. You don't
snitch to the police. And whether it was the guy who was down
there helping Francisco Green, trying to keep this killer off of
him, or whether it was the people that were working with this
killer to try and get to Francisco Green, none of them could
bring themselves to recognize what cannot be denied.
Id. at 29-30. He returned to this point again and again throughout his closing
argument. E.g., id. at 35 ("And there is only one conceivable explanation for
this, and it is called code."); id. at 37 ("all of those witnesses are protecting
Kevin Monday. Why? It's the same thing I'm going to say over and over


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

before I sit down. Code. It's all about the code.").
The jury found Monday guilty of one count of first degree murder and
two counts of first degree assault. The jury also answered "yes" to each of
the special verdict form questions asking whether Monday committed the
crimes with a firearm.
Monday appealed on numerous grounds, including that the prosecutor
made a blatant and inappropriate appeal to racial prejudice and undermined
the credibility of African American witnesses based on their race. The Court
of Appeals affirmed Monday's conviction and sentence finding, among other
things, that the prosecutor made a blatant appeal to racial prejudice but that
any error was harmless under this court's established jurisprudence. State v.
Monday, noted at 147 Wn. App. 1049, 2008 WL 5330824. We granted
review limited to whether prosecutorial misconduct deprived Monday of a
fair trial and whether imposition of firearm enhancements violated Monday's
jury trial right. State v. Monday, 166 Wn.2d 1010, 210 P.3d 1018 (2009).
1. Prosecutorial Misconduct
Prosecutorial misconduct is grounds for reversal if "the prosecuting
attorney's conduct was both improper and prejudicial." State v. Fisher, 165
Wn.2d 727, 747, 202 P.3d 937 (2009) (citing State v. Gregory, 158 Wn.2d
759, 858, 147 P.3d 1201 (2006)). Instead of examining improper conduct in
isolation, we determine the effect of a prosecutor's improper conduct by
examining that conduct in the full trial context, including the evidence


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

presented, "'the context of the total argument, the issues in the case, the
evidence addressed in the argument, and the instructions given to the jury.'"
State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v.
Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). Generally the
prosecutor's improper comments are prejudicial "'only where "there is a
substantial likelihood the misconduct affected the jury's verdict."'" State v.
Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007) (quoting McKenzie, 157
Wn.2d at 52 (quoting Brown, 132 Wn.2d at 561)). This has been the
standard in this state for at least 40 years. See State v. Music, 79 Wn.2d 699,
714-15, 489 P.2d 159 (1971), judgment vacated in part by, 408 U.S. 940, 92
S. Ct. 2877, 33 L. Ed. 2d 764 (1972). It is not clear from Music where this
standard came from.
A prosecutor serves two important functions. A prosecutor must
enforce the law by prosecuting those who have violated the peace and dignity
of the state by breaking the law. A prosecutor also functions as the
representative of the people in a quasijudicial capacity in a search for justice.
State v. Case, 49 Wn.2d 66, 70-71, 298 P.2d 500 (1956) (quoting People v.
Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899)).2

2 Over a 100 years old, Fielding's words bear repeating again:
[A] public prosecutor . . . is a quasi-judicial officer, representing the people
of the state, and presumed to act impartially in the interest only of justice.
If he lays aside the impartiality that should characterize his official action,
to become a heated partisan, and by vituperation of the prisoner and
appeals to prejudice seeks to procure a conviction at all hazards, he ceases
to properly represent the public interest, which demands no victim, and
asks no conviction through the aid of passion, sympathy or resentment.


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

Defendants are among the people the prosecutor represents. The
prosecutor owes a duty to defendants to see that their rights to a
constitutionally fair trial are not violated. Id. at 71. Thus, a prosecutor must
function within boundaries while zealously seeking justice. Id. A prosecutor
gravely violates a defendant's Washington State Constitution article I, section
22 right to an impartial jury when the prosecutor resorts to racist argument
and appeals to racial stereotypes or racial bias to achieve convictions.
Monday contends Prosecutor Konat injected racial prejudice into the
trial proceedings by asserting that black witnesses are unreliable and using
derogatory language toward a black witness, saying that "black folk don't
testify against black folk." VRP (May 30, 2007) at 29-30. He contends that
the prosecutor made a variety of improper comments during opening
statements and closing argument, including referencing his personal
credibility, invoking popular former King County Prosecutor Norm Maleng,
attacking Monday's credibility, the credibility of the State's own witnesses,
and commenting on the strength of the State's case. Monday also contends
the prosecutor acted improperly by stating that all good prosecutors believe
"the word of a criminal defendant is inherently unreliable" and by adding that
it was true in the present case. Id. at 26-27. The State concedes that some of
these statements were improper but argues that any error was either not
preserved by objection or was harmless given the overwhelming evidence
against Monday.

Fielding, 158 N.Y. at 547, quoted with approval in Case, 49 Wn.2d at 70-71.


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

A "'[f]air trial' certainly implies a trial in which the attorney
representing the state does not throw the prestige of his public office . . . and
the expression of his own belief of guilt into the scales against the accused."
Case, 49 Wn.2d at 71 (citing State v. Susan, 152 Wash. 365, 278 P. 149
(1929)). Turning first to the general issue of the State commenting on the
credibility of its witnesses or its case, we agree with the Court of Appeals and
Monday that the State crossed that line. It violates our jurisprudence for a
prosecutor, a representative of the State, to comment on the credibility of the
witnesses or the guilt and veracity of the accused.
[A]n attorney shall not
Assert his personal opinion as to the justness of a
cause, as to the credibility of a witness, as to the
culpability of a civil litigant, or as to the guilt or innocence
of an accused; but he may argue, on his analysis of the
evidence, for any position or conclusion with respect to
the matters stated herein.
Applying the predecessor to this rule, this court has noted
that it is just as reprehensible for one appearing as a public
prosecutor to assert in argument his personal belief in the
accused's guilt. State v. Case, 49 Wn.2d 66, 298 P.2d 500
(1956). Here, the prosecutor clearly violated CPR DR 7-
106(C)(4) by asserting his personal opinion of the credibility of
the witness and the guilt or innocence of the accused. First, he
called the petitioner a liar no less than four times. Next, the
prosecutor stated that the defense counsel did not have a case,
and that the petitioner was clearly a "murder two". Finally, he
implied that the defense witnesses should not be believed
because they were from out of town and drove fancy cars.
These statements suggest not the dispassionate
proceedings of an American jury trial, but the impassioned
arguments of a character from Camus' "The Stranger".


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984) (quoting former
Code of Professional Responsibility DR 7-106(C)(4)).3 Plainly, the State

violated these precepts. Monday has shown that the prosecutor's comments
were improper.
Monday also contends, correctly, that the State committed improper
conduct by injecting racial prejudice into the trial proceedings. The State
repeatedly invoked an alleged African American, antisnitch code to discount
the credibility of his own witnesses. First, we find no support or justification
in the record to attribute this code to "black folk" only. Commentators
suggest the "no snitching" movement is very broad. Prosecutor Konat
intentionally and improperly imputed this antisnitch code to black persons
only. Second, this functioned as an attempt to discount several witnesses'
testimony on the basis of race alone. It is deeply troubling that an
experienced prosecutor who, by his own account, had been a prosecutor for
18 years would resort to such tactics. "[T]heories and arguments based upon
racial, ethnic and most other stereotypes are antithetical to and impermissible
in a fair and impartial trial." State v. Dhaliwal, 150 Wn.2d 559, 583, 79 P.3d
432 (2003) (Chambers, J., concurring).

3 Since Reed, the Code of Professional Responsibility has been replaced by the Rules of
Professional Conduct. DR 7-106(C)(4) is substantially similar to the current RPC 3.4(e),
which states that a lawyer shall not
in trial . . . assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the justness of a
cause, the credibility of a witness, the culpability of a civil litigant or the
guilt or innocence of an accused.


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

Neither was it an isolated appeal to racism. Not all appeals to racial
prejudice are blatant. Perhaps more effective but just as insidious are subtle
references. Like wolves in sheep's clothing, a careful word here and there
can trigger racial bias. See generally Elizabeth L. Earle, Note, Banishing the
Thirteenth Juror: An Approach to the Identification of Prosecutorial Racism,
92 Colum. L. Rev. 1212, 1222-23 & nn.67, 71 (1992) (citing Joel Kovel,
White Racism: A Psychohistory 32 (1984); Thomas F. Pettigrew, New
Patterns of Racism: The Different Worlds of 1984 and 1964, 37 Rutgers L.
Rev. 673 (1985); Reynolds Farley, Trends in Racial Inequalities: Have the
Gains of the 1960s Disappeared in the 1970s, 42 Am. Soc. Rev. 189, 206
(1977)); see also A. Leon Higginbotham, Jr., Racism in American and South
African Courts: Similarities and Differences, 65 N.Y.U. L. Rev. 479, 545-51
(1990). Among other things, the prosecutor in this case, on direct
examination of a witness, began referring to the "police" as "po-leese."
Monday contends, and we agree, that the only reason to use the word "po-
leese" was to subtly, and likely deliberately, call to the jury's attention that
the witness was African American and to emphasis the prosecutor's
contention that "black folk don't testify against black folk." VRP (May 30,
2007) at 29. This conduct was highly improper.
The State contends that even if the conduct was improper, Monday still
bears the burden of showing a substantial likelihood that the misconduct
affected the verdict, and, it contends, given the overwhelming evidence of
Monday's guilt, this is a burden he has not met. It also notes that Monday's


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

counsel did not object and that we have held that without a timely objection,
reversal is not required "unless the conduct is 'so flagrant and ill-intentioned
that it causes an enduring and resulting prejudice that could not have been
neutralized by a curative instruction to the jury.'" State v. Warren, 165
Wn.2d 17, 43, 195 P.3d 940 (2008) (quoting Brown, 132 Wn.2d at 561). We
have also said that a defendant's failure to object to a prosecutor's remarks
when they are made "strongly suggests" that the remark did not appear
critically prejudicial in the trial's context. State v. Swan, 114 Wn.2d 613,
661, 790 P.2d 610 (1990). Similarly, objecting to improper conduct but
failing to request a curative instruction does not warrant reversal if an
instruction could have cured the prejudice. Warren, 165 Wn.2d at 26 (citing
Yates, 161 Wn.2d at 774).
The notion that the State's representative in a criminal trial, the
prosecutor, should seek to achieve a conviction by resorting to racist
arguments is so fundamentally opposed to our founding principles, values,
and fabric of our justice system that it should not need to be explained. The
Bill of Rights sought to guarantee certain fundamental rights, including the
right to a fair and impartial trial. The constitutional promise of an "impartial
jury trial" commands jury indifference to race. If justice is not equal for all, it
is not justice. The gravity of the violation of article I, section 22 and Sixth
Amendment principles by a prosecutor's intentional appeals to racial
prejudices cannot be minimized or easily rationalized as harmless. Because
appeals by a prosecutor to racial bias necessarily seek to single out one racial


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

minority for different treatment, it fundamentally undermines the principle of
equal justice and is so repugnant to the concept of an impartial trial its very
existence demands that appellate courts set appropriate standards to deter
such conduct. If our past efforts to address prosecutorial misconduct have
proved insufficient to deter such conduct, then we must apply other tested and
proven tests.
Such a test exists: constitutional harmless error. E.g., State v. Evans,
154 Wn.2d 438, 454, 114 P.3d 627 (2005) (citing State v. Brown, 147 Wn.2d
330, 340, 58 P.3d 889 (2002)); see also State v. Evans, 96 Wn.2d 1, 4, 633
P.2d 83 (1981). Under that standard, we will vacate a conviction unless it
necessarily appears, beyond a reasonable doubt, that the misconduct did not
affect the verdict. We hold that when a prosecutor flagrantly or apparently
intentionally appeals to racial bias in a way that undermines the defendant's
credibility or the presumption of innocence, we will vacate the conviction
unless it appears beyond a reasonable doubt that the misconduct did not affect
the jury's verdict. We also hold that in such cases, the burden is on the

4 The dissent is of the view that the videotape is overwhelming evidence of guilt. We
respectfully disagree that the video alone is dispositive. While the videotape clearly
establishes that Monday was the shooter, it does not by itself establish premeditation, nor
does it rule out some defenses. The State certainly did not think the video was enough;
otherwise, this trial would not have stretched on for weeks. More importantly, our task
today is not to determine whether there was sufficient evidence to sustain the jury's
verdict. Our task today is to determine whether Monday is entitled to relief because the
prosecutor made improper, racially charged comments.
Given our holding, we do not reach whether the firearms enhancement was
properly imposed.


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2

In this case, we cannot say beyond a reasonable doubt that the error
did not contribute to the verdicts. The prosecutor's misconduct tainted nearly
every lay witness's testimony. It planted the seed in the jury's mind that most
of the witnesses were, at best, shading the truth to benefit the defendant.
Under the circumstances, we cannot say that the misconduct did not affect the
jury's verdict.5

It was improper for the prosecutor to cast doubt on the credibility
of the witnesses based on their race. We cannot say beyond a
reasonable doubt that the impropriety did not affect jury's work. We

5 The dissent contends that we have disregarded the rights of the victim and his family
under article I, section 35 of our state constitution. When the government resorts to
appeals to racial bias to achieve its ends, all of society suffers including victims. Further,
we fail to see how article I, section 35 is implicated in our opinion today. Article I,
section 35 provides:
Effective law enforcement depends on cooperation from victims of crime.
To ensure victims a meaningful role in the criminal justice system and to
accord them due dignity and respect, victims of crime are hereby granted
the following basic and fundamental rights.

Upon notifying the prosecuting attorney, a victim of a crime
charged as a felony shall have the right to be informed of and, subject to
the discretion of the individual presiding over the trial or court
proceedings, attend trial and all other court proceedings the defendant has
the right to attend, and to make a statement at sentencing and at any
proceeding where the defendant's release is considered, subject to the same
rules of procedure which govern the defendant's rights. In the event the
victim is deceased, incompetent, a minor, or otherwise unavailable, the
prosecuting attorney may identify a representative to appear to exercise the
victim's rights. This provision shall not constitute a basis for error in favor
of a defendant in a criminal proceeding nor a basis for providing a victim or
the victim's representative with court appointed counsel.


State of Washington v. Monday (Kevin L., Jr.), No. 82736-2


Justice Tom Chambers


Justice Charles W. Johnson Richard B. Sanders, Justice Pro
Justice Gerry L. Alexander

Justice Susan Owens