A change in Criminal Court Rules effective September 1, 1983, has dramatically altered the standard of appellate review in cases dealing with post-conviction release pending appeal. CrR 3.2(h) (the former rule) allowed the trial court the power to deny the defendant release only when the state could prove the defendant was either 1) likely to flee the state or 2) likely to pose a substantial danger to another or the community. Under this standard, the burden was on the trial court to provide a basis for denying release to a defendant pending appeal. The new rule CrR 3.2(f) grants the trial court the discretionary power to “revoke, modify, or suspend the terms of release previously ordered”. This change lowers the standard of review and establishes “abuse of discretion” as the only available means for an appellate court to review a denial of release pending appeal. The burden is now shifted from the trial court to the defendant, who must show that no reasonable person would take the position adopted by the trial court.
This Comment contends that while there are justifiable reasons for the rule change, the effect thereof, intended or not, has been to shield trial judges from adverse political consequences to which they were formerly exposed when required to release defendants they believed were likely to commit crimes while on release pending appeal. The court rule change has also raised the possibility of reactivation of Washington statutes RCW 10.73.040, which had been nullified in State v. Smith, and RCW 9.95.062, which may have been in conflict with CrR 3.2(h) but has never been construed by the Washington Supreme Court regulating such release. This rule change will require litigation to determine its effect in release-pending-appeal cases unless the Washington Supreme Court promptly rectifies the problems outlined herein.
To understand this rule change and its ramifications, it is helpful to trace the history of release pending appeal, the conflict between the legislature and the court in governing such release, and finally, the effect such rule change will have on appellate review when a defendant has been denied release pending appeal.
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