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Abuse of Discretion -


© 2012 Steven Darby McDonald
Updated and Revised October 2013


  1. Who would have guessed that Washington State’s Three-Strikes Law has been abused for political purposes and for pecuniary gains? Further, to disenfranchise African-Americans’ voting strength according to the most recent case law on this subject. See Farrakhan v. Gregorie, 590 F. 3d 989 (9th Cir. 2010). Or just plain wrongly applied to people who can be abused, who lack the financial means to retain a real attorney to fight the charges and avoid the appointment of a Public Pretender, and to the mentally challenged receiving psychological disability payments like Mr. McDonald was, when he was arrested, from the Social Security Administration: just to rid them from their communities.


  1. Simply put, the application of a Three-Strikes prosecution is at best Selective Prosecution that’s been outlawed by the United States Supreme Court. It’s rarely, if ever, applied in our state because its costs have been realized and it’s alleged ability to stop crime nullified in dozens of reports on this subject, including Ashley Nellis’s Throwing Away the Key cited below.


  1. Cursory review of some 139 strikable offenses between the dates of 2001 and 2010 occurring in King County clearly demonstrate that only five of these crimes were prosecuted or pled out to strikable offenses: An act that is allegedly prohibited by the law, and which was used to deny Mr. McDonald and the original 300 Three-Strikers the option of a plea deal. [if !supportFootnotes]-->[1][endif]--> See Washington State Supreme Court’s decision in State v. Manussier, 120 Wn.2d 652, 921, p. 2d 473 (1996) (prosecutor cannot offer plea deal to defendants charged with strikable offense).


  1. Many examples of these things exist if you only know how to look for them. Otherwise, they have been deliberately suppressed from public view by the very people responsible for enacting this law. That would be your Governor, your State Legislators, and Prosecutors. And even the Public Defenders who were supposed to be guarding the interests of those whom they were assigned to represent. Yet did just the opposite in conspiracy with the rest.


  1. The Three-Strikes Law and its application was originally touted for Washington’s Worst of the Worst. This propaganda was disseminated by many of Washington’s Public Services Agencies, and was no more than hype: a veiled attempt to artfully and artificially stimulate the economy and build up their own state agencies at taxpayer expense and to ensure their continued economic viability no matter what the eventual cost to you would be. Corporate interests had co-opted the initiative process to ensure this result. We all now see exactly what that cost is and how dear it’s going to be. With 95,000 people losing their jobs September of 2010, the tax base will now continue to erode, along with your job.


  1. Some of these factors were predicted back in 2001 when the Honorable Richard B. Sanders, our Supreme Court Justice, prepared what was then called the Washington State Sentencing Guidelines Report on Three-Strikes, which concerned the Legislature’s addition of Second Degree Robbery to the list of strikable offenses, and the financial impact that it would eventually have on the State’s economy if not removed. He suggested that this offense be removed since it was never initially included in the voters pamphlet in the first place, and the millions of dollars that it would save the taxpayers of our state.


  1. This report was ignored and its predictions have all now come true.


  1. The fact of the matter is that the citizens of this state were hoodwinked by greedy fat-cats who wanted to start up new construction projects in our state. Naturally these were all prison construction projects. They in turn elicited the assistance of shock jocks who employed scare tactics and false information to create panic. Out of this hysteria of fear cooked up by radio personalities like John Carlson and Ken Schram, came the abomination called Three-Strikes. And the building began!


  1. Initially, the person originally credited with this law is a New York politician who saw it as a way to end all crime. His rather simple belief on how to do this is right out of Les Miserables. It works like this. He who steals a bottle of milk will one day steal a loaf of bread so if we can catch them for stealing the milk and lock them up forever then we can keep our bread safe.


  1. The problem is this plan is no longer artificially stimulating the economy by the creation of new courthouses, jails and prisons, and requiring the hiring of many new judges, prosecutors, public pretenders, jail and prison guards and supporting staff to oversee and maintain this artificial process. It is now draining every last dime from the public coffers with the collateral consequence of curtailing or completely stopping altogether, all public support systems and all public entitlement programs.


  1. Imagine not having any pension. It’s easy if you try.


  1. Once again the law of unintended consequences has come to fruition.[if !supportFootnotes]-->[2][endif]-->




  1. In order to create the prison fodder required to complete this initial process, Washington State Judges both preached and applied the State’s Whitebread Doctrine at their yearly judicial conferences in Wenatchee, Washington. The Honorable Michael Moynihan spilled the beans when he gleefully recited this concept during Mr. McDonald’s September 16, 1996 hearing in open court, page 16 of the transcript, that he had been instructed that the plebian who appeared before him now had only “two rights under the Constitution, the right to go to jail and the right to stay there until their term is up”. All of which was conspicuously ignored by every judge that Mr. McDonald presented it to while on appeal from his original conviction, and ignored during his second trial and appeal. (See Briefs)


  1. By review of many of the hundreds of Three-Strikes cases that were “produced” during this period, you can easily see that this new Constitutional standard was applied in order to create the building process of the state’s larges prison boom in its history.


  1. Assisting in this process were Washington State Prosecutors who had conspired jointly to overcharge criminal defendants with crimes that they had not committed that were strikable offenses. To further ensure that strikable offenses were obtained, they would refuse to offer plea deals to certain criminal defendants and then offer plea deals to others with the same criminal charges in order to avoid a strike conviction. This decision making process did not follow the then mandate of the Three-Strike law, and was arbitrarily and capriciously applied at their whim based upon their own passions and prejudices. Also violating the equal protection clauses of both the United States and Washington’s constitutions.


  1. Basically what happened was that the sentencing judge was a purely perfunctory object, a figurehead without discretion in any sentencing process. It was the Washington State Prosecutors who were the sentencing judge and jury as their decision to file the Three-Strikes charge mandated the sentence. This process would appear to violate the Washington State Constitution’s Due Process and Equal Protection Clauses yet no one did a thing about it by pursuing it in the Federal Courts, because the State’s Whitebread Doctrine prohibited it.


  1. If this did not violate Washington’s Constitution, the 593 Ballot Initiative did as it claimed more than one bill. In every other legal challenge to this, the Washington State Supreme Court has been unanimous and struck the law except in the case of the Three-Strikes bill. Further proof of a knowing governmental action to build the economy at taxpayers’ expense. If you don’t believe this, simply check out the case law on this subject.


  1. Yet with all this exceedingly apparent to pundits and pseudo legal clowns of our state, not one of them every appealed any of these issues to the United States Supreme Court by writ of certiorari. No legal professional dare raise his or her voice up against this tyranny, least they be ostracized by their peers for standing up against the legal establishment that was fully behind this economic stimulus project. Who cares about a bunch of nobodies without any money to do anything about it? They will never have a voice to expose what happened. Sot it was hoped.


  1. It’s these legal people who are no more or no better than legal NAZIS, those who profess to present the truth but instead suppress its existence as they continue to manipulate the reality of the situations to their advantage.


  1. Legal Nazis are who they are and they should be thought of as such.


  1. As Pastor Jeremiah Wright said, “The chickens have now come home to roost.” And it sure looks like a lot of people are now waking up and beginning to care about all the lies that their politicians have told them over the years by the blame game you see against all parties 24/7. And by the fact that all your resources have dried up along with your jobs because of their harmful realpolitik policies.




  1. Their conspiratorial actions left a rather clear trail. A case in point is George Manussier, who recently passed away after it took medical over 8 minutes to come to his aid when he had a heart attack while playing softball. His legal brief was completely federalized claiming all kinds of violations by the enactment of the then new Three-Strikes Legislation. See State v. Manussier, 120 Wn. 2d 652, 921 P.2d 473 (1996). He had pled guilty to his second degree robbery. Yet inmate Mike McKiearnan WA/DOC 930033 had not. He stood trial and claimed many trial errors had occurred. Yet his public pretender filed the same identical brief that Mr. Manussier’s had, only changing his name. He failed to present one trial error. This happened in many, many other cases as well.


  1. Another dirty little trick that Washington State Prosecutors would employ, in collusion with the trial judges and public pretenders, was to “forget” to request a comparability analysis of their client’s out-of-state prior predicate felony conviction, to ensure that it was both legally and factually comparable to its Washington State counterpart. The elements of the foreign offense must be identical to the comparable Washington State offense. If not, then the court must conduct a factual analysis of the criminal defendant’s actions in his alleged commission of the foreign offense, or his admitted factual actions at his guilty plea. If these facts are not contained within the plea documents, then the court is not free to speculate about what they may or may not have been.


  1. A criminal defendant would not know any of this as he is not a lawyer. It would be bad for business if this analysis took place and the offenses were not comparable, as you could not be sentenced to a mandatory life term to help grow the prison system. This analysis was mandatory. See State v. Ford, 137 Wn. 2d 472, 973 P.2d 452 (1999). Yet in dozens and dozens of cases, this analysis was not performed at the proper trial court level, not during the appeal process so that the criminal defendant could interject facts and information that supported his position and which in turn could be argued on appeal.


  1. By the time many of the dozens and dozens of inmates learned that this was a mandatory act required to ensure that their prior predicate felony offense was comparable, the one-year time period for filing a collateral petition to challenge the trial court’s failure to hold this hearing, had expired. See RCW 10.73.090. This means that people now with a mandatory life sentence, maybe should not have received a mandatory life sentence but a sentence under the SRA Sentencing Guidelines with a release date.


  1. When Mr. McDonald requested a comparability analysis at sentencing, he was told by the prosecutor: “The law is the law and I say it’s comparable.” But it’s not because Washington State’s robbery statute has immediacy as an essential and requisite element of robbery. See State v. Gallaher, 24 Wn. App. 819, 604 P.2d 185 (1979). And Florida’s robbery statute, where Mr. McDonald’s prior predicate offense is located, does not. Nor are his Informations factually comparable, because no factual basis was established during his guilty plea, negating any comparison.


  1. A worst case scenario on this point is the case of Mr. Herbert Blumer WA/DOC 901445. Mr. Blumer’s Public Pretender, prosecutor and trial judge all conspired jointly to ensure that he have no comparability analysis of his prior California Second Degree Robbery conviction or charges in Minnesota. Strangely enough, they are not comparable because California’s robbery statue lacks the element of “immediacy”. It only has the comparable element of specific intent. Accordingly, they are not the same under Washington State Law. See State v. Dukes, 2004 Wash. App. LEXIS 900 (2004).


  1. After learning about the law many years later, Mr. Blumer filed a Personal Restraint Petition (PRP) challenging the illegality of his Three-Strike sentence. The prosecutor responded that he had not had a comparability analysis and that his prior predicate triggering offenses were not comparable, but that it did not matter. The reason why was because he was “time-barred by RCW 10.73.090”. In other words, Mr. Blumer should be sentenced under the SRA Sentencing Guidelines Range for his crime, which was about 198 months, instead of his mandatory life sentence. He has nearly done his guideline sentence but will now have to serve out the remainder of his life in prison at the public’s expense for a crime he could be supporting himself for on the street. Along with dozens and dozens of other inmates similarly situated.


  1. You need to thank your Legislators, Trial Judges and Public Pretenders for this additional cost because he by far is not the only one in this predicament. Mr. McDonald personally knows 15 other inmates who did not have comparability analysis and are now time-barred from doing so. Yet others with similar crimes who did have were not allowed to be sentenced under the Three-Strikes law because their predicate offenses were not comparable.


  1. If all this wasn’t bad enough, in order to get more Three-Strikers the Washington State legislature after the passage of the Three-Strikes law, changed the prior seriousness level of old crimes to make them fit as predicate triggering felonies to count as prior strikes: just to build the Washington State Prison System.


  1. Illustratively, Mr. McDonald’s 1992 robbery was classified as a “violent” offense, and could not be counted as a strike. He pled guilty and had received nine months. Five years later the Washington State legislature changed his offense seriousness level to a “most serious violent” offense so it could be counted as a predicate triggering strike. He never would have pled guilty to this offense had he known in the future it could be counted as a strike or had it be classified as a “most serious violent” offense.


  1. A comparison would be you pleading guilty to a parking violation and four years down the road the state telling you that you must give up your car because you got another traffic ticket and your prior parking offense now is counted as a predicate offense requiring the forfeiture of your automobile.


  1. How fair is that?





ALEC representatives were the real reason that Washington State legislators enacted the Three Strikes legislation. This economic council bull-dogged greedy, money-hungry legislators with this concept to incarcerate cigarette thieves, beer/food thieves, doormat burners, minor assaults and other relatively minor crimes, as mandatory life felonies to generate money for the special interests who profit from mandatory incarceration. The legislators in turn spun it to the public as a way to stop habitual crime, without revealing to the public the true nature of some of the crimes, and the fact that all criminal justice studies of mandatory incarceration to stop crime showed they did not work.


The documents used by ALEC to achieve this result are not discoverable, they claim, under Washington’s Public Disclosure Law, RCW 42.56 et. seq., thus leaving them absolved of any wrongdoing in this process. Several of the these wrongful acts have resulted in the disproportionate application of this law to people who were not offered a plea deal or people whose crimes were relatively minor, yet manipulated into higher offense categories.


The Persistent Offender Accountability Act (POAA), RCW 9.94A.570, formerly RCW 9.94A.120(4), was enacted in 994. In the first six years of this law, between January 1994 and December 1999, approximately 279 people were given a life sentence without parole. In the past ten years, between January 2000 and November 2000, there has only been approximately 35 people given a three strike sentence. This is a disparity of 297 in six years and 35 in ten.


This stark difference is because state presenters realized the astronomical costs associated with this law, and have now moved the goalposts as to who and when they will apply this law to despite the legislative mandate that this course is prohibited and judicial decisions affirming the same. See State v. Crawferd, 159 Wn. 2d 101-102 (2006).


As seen by the attached graph of 120 cases, prosecutors now offer plea deals to reduced charges to avoid a Three-Strike sentence. This is done by a “mitigation specialist” who finds mitigating circumstances for the defense, who then brokers a reduced plea deal to save the state costs. See In re West, 154 Wn. 2d 204, 206 (2005).


Yet the first 279 people were not offered a plea deal to a reduced charge as is the custom now.


  1. The Worst of the Worst was how Washington’s Three-Strikes law won voter approval. The truth of the matter is just the opposite.


Example:         Maybe this is who they were talking about as being the Worst of the Worst, Mr. Scotty Wharton WA/DOC 292909, who is struck out for second degree robbery. His trial judge sure did not think so, and even went on record and in the newspapers to tell the voters of the state this. Too bad no one was listening back then. Maybe we would not be having this $8 billion deficit next year due to fiscal mismanagement by our government.


April 23, 1997 Seattle Judge, the Honorable Michael J. Fox, was quoted in the Valley Journal, in Kent, Washington, on page 2 under the headline, “Wharton Gets Life Sentence,” as saying he felt Mr. Wharton’s case was “tragic” because he had been forced by Washington’s Three-Strikes Law to impose a mandatory life sentence on Mr. Wharton that he had not deserved!


The judge’s words were as follows: “Although you did scare the bejesus out of a lot of people, you have never used a gun, knife or any kind of weapon. You never touched anyone and I personally do not feel this sentence is justified, but by state law I must sentence you to life in prison without the possibility of parole, and I’m sorry. I do not agree with this law, but I’m bound by the law to follow the letter of the law.”


  1. Since this time, Judge Fox has visited Mr. Wharton on several occasions, and June 2011 personally sponsored a Petition for Clemency trying to have him released from incarceration for his Second Degree Robbery convictions.


  1. Many more judges are of the same opinion for the people they were forced to send to prison for life because of this law, and there was good reason why: The cost of this law is prohibitive and it simply does not work.


  1. Even Mr. McDonald’s original trial judge, the Honorable Michael Moynihan, commented during this sentencing in 1996 that Mr. McDonald’s alleged “crime” did not warrant the imposition of such a severe sentence. And he “wished” Mr. McDonald had taken one of the plea deals that were then offered by the prosecutors. 


  1. You can spin it however you want, but it is what it is! And you’re just beginning to see what that is going to be by simply looking around you or watching your comfort zone disappear!






  1. Washington State Prosecutors are keenly aware of their shrinking budgets in addition to the financial woes the state is experiencing due to overcharging criminal defendants, and have collectively decided to disregard charging individuals with three-strike crimes. Instead they are opting to charge a lower degree of offense to avoid the costs now realized associated with incarcerating a person for life for relatively minor crime despite the contrary language prohibiting this result contained in the three-strike legislation.


  1. A classic case in point was the recent bank robbery committed by inmate Leonard B. Lavery WA/DOC 254928 that occurred in 2009. Last year Mr. Lavery was charged with First Degree Robbery in Snohomish County that was reduced by the prosecutor to First Degree Theft and Burglary. To receive this reduction in charges which removed his crime from the three-strikes list, Mr. Lavery had to agree to plead guilty to an exceptional sentence of 20 years.


  1. Another case in point is the bank robbery case of Lonnie Hall WA/DOC 967991 that occurred in 2008. Mr. Hall was charged with First Degree Robbery in King County and offered a plea deal of 15 years to plead guilty to First Degree Theft and Burglary to avoid the imposition of a three-strike sentence. Or Mr. Brandon Miller WA/DOC 734923, who was charged in Clark County August 2008 with Second Degree Assault, that was reduced to Third Degree in order to avoid a strike.


  1. These cases are no longer the exception, but the rule that is being followed by the prosecutors in all cases in the State of Washington. (See paragraph #3 infra for list of over 130 cases only in King County).


  1. The problem with these new cases are that none of the original 300 or so three-strikers were offered a plea deal because they were told that three-strike legislation prohibited it. Including Mr. McDonald when he was retried in 2001. Now the prosecutors claim they did not understand the law correctly, and they could have offered plea deals.


  1. Now it’s obvious their only perverting the truth to hide their culpability in the matter, and the true costs their wrongful actions are causing the public. (See What This is Costing You on this site for the financial breakdown).


  1. The application of this law to only certain three-strikers has been a blatant violation of their Due Process and Equal Protection rights because the state attorneys have offered different sentences to those similarly situated under the same set of factors, and now are claiming they could not correctly interpret the correct application of the law when it was originally enacted.


  1. If you want the specifics on why three-strikes does not work, read Ashley Nellis’s October 2010 Report in the Federal Sentencing Reporter, Vol. 23, No. 1, pp. 27-32. This analysis breaks it down so the average citizen can see the fallibility of this law in conjunction with the huge costs to the taxpayers. You can go online and download a copy of this report at:


  1. Just look around at the high financial costs this “policy” is having. The detrimental effects are everywhere. Now according to Susan Dreyfuss, the DSHS Chief who was quoted on Inside Olympia, June 24, 2011 as saying Community Medical Centers were closing as well as the developmentally disabled living centers. All this is in addition to your cash benefit associated with your life-line entitlement.


  1. Meaning if you can find a place to live you will not be able to buy anything to go inside: furniture, towels, soap, lighting fixtures, etc. You will be living in a bare bones apartment, devoid of all contents and furnishings.


  1. The bottom line is if the over 130 people in the attached graph were offered reduced plea deals to save the state costs for their Three-Strikes offenses, why weren’t the first 300 people charged under the Three-Strikes law?


  1. And why are your entitlements being cut or stopped altogether just to keep them incarcerated so the Teamsters Union and others can maintain their numbers and false sense of legitimacy through their scare tactics we are constantly being bombarded with through the media outlets in order to stifle the truth about what’s really going on inside Washington’s prisons.[if !supportFootnotes]-->[3][endif]-->


  1. Including the true costs and detrimental effect it’s having on you and your children’s quality of life.


  1. These Three –Strikers are not the dangerous people. It’s the people who are misleading you in the press in order to suck the very last drops of your life’s blood so they can maintain their quality of life at your expense, who are the truly guilty ones.


  1. And now is the time to expose them and make them reverse their harmful policies of deceit!


Thank you,


Steven Darby McDonald

© 2012




[if !supportFootnotes]-->


[if !supportFootnotes]-->[1][endif]--> Many of these crimes include child molestation, rape of a child, and rape (all in the First Degree). See complete list of 139 crimes from January of 2000 to January 2010 attached hereto as exhibits one through four, King County only. Obviously the law only applies to those who can afford its application!

[if !supportFootnotes]-->[2][endif]--> And more could be on their way. At least according to Ashley Nellis’s report in the Federal Sentencing Reporter, Volume 23, No. 1, pp 27-32 (10/2010), the average cost to incarcerate a prisoner with a life without parole (LWOP) sentence, is “$1 million dollars because of increasing health care costs . . . and because of their previous unhealthy lifestyle coupled with the prison environment.” (p.29-30) This cost may be significantly less in the State of Washington because of the enactment and practice of their Whitebread Doctrine of Law. This policy gives all poor people only “two constitutional rights under the law. The right to go to jail and the right to stay there until their term is up.” See September 16, 1996, page 16 of Mr. McDonald’s trial transcript where the judge spilled the beans on this one when he said all “prisoners” before him were only entitled to these two constitutional rights. And he’s been instructed to apply this standard at his Wenatchee, WA Judicial Conference. The term “prisoner” is legally defined under 28 USC 1915A © as follows: “The term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or indicated delinquent for violations of criminal law or the terms and conditions of parole and probation, pretrial release or diversionary program.” Thus, obviously, this is the reason WA/DOC inmates receive such poor quality of medical care, administered by convicted drug addicts and pedophiles or those undergoing treatment for same. See their criminal convictions histories on this site. And who are now unemployable in any other segment of society except at a prison, where the Attorney General will protect their wrongful actions of criminal neglect in treating your loved ones.

[if !supportFootnotes]-->[3][endif]--> Google the name Frank Fitzsimmons to learn some fun facts on how this union works. Mr. Fitzsimmons was this union’s past president. 



Articles in Kitsap Sun relating to the Three-Strikes issue:
LAW AND JUSTICE: Three Strikes Law Imprisons Non-Violent Offenders (11/6/07)

Man Avoids 3 Strikes, Gets 10 Years for Bar Assault (12/12/07)


Robber Eligible for Life Sentence Gets 5 Instead (5/15/07)





List of people given a plea deal to avoid a strike: