Facts:  Respondent Donald McCarthy was convicted of third degree assault with sexual motivation and sentenced to a minimum term of twelve months imprisonment and a maximum term of sixty months imprisonment.  Prior to the expiration of McCarthy’s minimum sentence, the Indeterminate Sentence Review Board conducted a hearing pursuant to Washington Revised Code §9.95.420(3) to decide if he is eligible for release.  After denying McCarthy’s request to be represented by an attorney, the board found that McCarthy is more likely than not to commit another sex offense if released and added twenty-four months to McCarthy’s minimum term.  McCarthy subsequently filed a personal restraint petition seeking review of the board’s decision in the Washington Court of Appeals.  It asserted that offenders have a right to counsel during hearings conducted pursuant to §9.95.420(3).  The Washington Court of Appeals held that due process requires that the board decide on a case by case basis whether offenders are entitled to counsel to ensure fundamental fairness.  The state of Washington appealed this decision to the Supreme Court of Washington.

Question(s):   Do offenders have a right to counsel during hearings conducted pursuant to §9.95.420(3)?

Conclusion:  Justice Owens’ opinion for the Court reversed the Washington Court of Appeals, concluding that while offenders have a liberty interest at stake during a hearing conducted pursuant to §9.95.420(3) and therefore are entitled to minimum due process, this does not include a right to counsel.  In particular, the Court held that a hearing conducted pursuant to §9.95.420(3) is analogous to a parole hearing and has adequate safeguards against serious risk of error.

Docket No. 79025-6 (from Court of Appeals Division II Case No. 32702-3)

Petitioner: State of Washington

(Counsel: Gregory Joseph Rosen, Jay Douglas Geck, and Michael C. Kinnie)

Respondent: Donald McCarthy

(Counsel: Richard Alan Linn)

Argument: Tuesday, March 20, 2007 1:30pm

[Source: TVW, http://tvw.org]

Decided: Thursday, August 16th, 2007

Prevailing Party: State of Washington (Petitioner)

Vote: 5-4

Citation: Pending

Court: Alexander3 Court (2005-2007)

Alexander

Johnson

Madsen

Sanders

Bridge

Chambers

Owens

Fairhurst

Johnson