State v. Bartholomew

(dissenting) — I believe the Pierce County Prosecuting Attorney does have the discretion not to proceed with the death penalty after the remand of Bartholomew II (State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984)).

The majority makes three arguments to justify its position: (1) The statute mandates its result; (2) to hold other*851wise would be an unconstitutional delegation of authority to the prosecuting attorney; and (3) a contrary view would permit the prosecuting attorney to usurp the role of the jury.

I

The majority states the definitive statute is RCW 10.95-.050(4), which reads:

if a…