Did you know that our state’s prosecutors have the power to access private information — bank accounts and cellphone logs for instance — without any record of doing so ever being made public?
I sure didn’t. But as it turns out, the “Statewide Special Inquiry Judge Act,” has been around for more than 30 years. Last week, it was chronicled in a story by Associated Press Reporter Gene Johnson, where I learned about it.
Essentially, “special inquiry” proceedings give prosecutors a way to bring potential evidence before a judge for review, as investigators probe whether there is probable cause to charge someone with a crime.
It’s kind of like the process for obtaining a search warrant, but, as Johnson points out in the story, it doesn’t require sworn statements “or a finding of probable cause that a crime has been committed.” Furthermore, search warrants generally become a matter of public record — but special inquiry proceedings rarely, if ever, do (Johnson’s story points out one instance where they have).
After reading his story, I called Kitsap County Prosecutor Russ Hauge to find out if the special inquiry process was used here. I had noticed, in my years as courts reporter, the phrase “special inquiry” written on charging documents but never knew what it meant.
Hauge told me that the “special inquiry” use is not uncommon in Kitsap. He said that at any given time, there are 10 or so pending, mainly to seek financial records.
He said that while the process is a secret, it is overseen by a judge, and, if prosecutors find no evidence of wrongdoing, nothing goes public — and thus there’s no risk to the reputation of the person investigated.
“If no criminal charges are ever filed, the information remains under seal,” Hauge said.
Judges can also hear from frightened witnesses who are guaranteed immunity and whose testimony also remains secret. In rare cases in Kitsap, a witness is called to testify in one, Hauge said.
But there is some controversy. From Johnson’s story:
Prosecutors who use them say the proceedings are authorized by state law, make for more efficient investigations and have plenty of judicial oversight, but (a lawyer contesting the process) and other defense attorneys say they raise questions about privacy, accountability and the open administration of justice.
Hauge said the proceedings are based in the grand jury system, but — as authorized by lawmakers in 1971 — without the grand jury. There is judicial oversight and “It maintains all of the protections,” given to its witnesses and potential targets.
And where did the idea for these proceedings come from? Organized crime, as it turns out. From Johnson’s story:
The special inquiry law was a response to a corruption scandal involving the Seattle police, including the former chief, and the former King County prosecutor. When Chris Bayley was elected King County prosecutor, he organized a grand jury to investigate.
Dave Boerner, a semi-retired Seattle University criminal law professor, was a deputy King County prosecutor then. He recalled that the grand jury was cumbersome, slow and expensive, and he joined his boss in urging lawmakers to adopt a new type of proceeding — the special inquiries.
