Court of Appeals hears argument on whether double-jeopardy bar forecloses later murder charge in State v. Toffoli

The Washington Court of Appeals, Division 1, heard oral argument in State of Washington v. Gregory Toffoli on whether the trial court erred by dismissing a murder prosecution on double-jeopardy grounds.

Gabriel Jacobs, arguing for the State, told the panel the appeal raises a narrow legal question: whether a due-diligence exception to double jeopardy applies when facts supporting a greater offense were not discoverable despite ordinary diligence. "The trial court in this case errored as a matter of law when it dismissed on double jeopardy grounds," Jacobs said, urging the court to follow Washington precedent rather than what he described as less persuasive out-of-state authority.

The State relied on a line of cases it said recognize two prongs to the Diaz exception: the common scenario where a victim is injured and later dies, and a less common scenario in which facts that would justify a greater charge are discovered later despite the state's exercise of ordinary diligence. Jacobs pointed to cases including Stearns and People v. Spicer to argue that suspicion alone does not mean the facts were discoverable earlier; in Escobar-like fact patterns, experts hired after an initial charge may produce new, legitimately unavailable evidence.

Defense counsel Matthew Catalo countered that the record shows prosecutors repeatedly signaled an intent to pursue murder charges and that the State "knew about the facts underlying the murder." Catalo said the missing link was the medical-causation opinion — whether the assault, the defendant's alleged conduct, or other causes (for example, narcotics or a heart condition) produced the death. Catalo pointed to a September 26 police "super form," a September probable-cause certification, a plea on October 2, and a neuropathologist examination dated October 3, arguing those timeline details were material and should have prompted a continuance or other Ford procedures rather than allowing the plea to proceed.

Judges on the panel pressed both sides on the legal standard and practical consequences. One judge asked whether permitting a later murder prosecution would place the defendant at an unfair disadvantage; Jacobs acknowledged the risk but said courts balance that against society's interest in prosecuting serious crimes. The defense argued that the State had available procedural mechanisms — continuance, supplementation — that would have avoided the present double-jeopardy conflict if the pending neuropathology report had been disclosed in time.

Catalo suggested the sequence of filings and disclosures undermined the State's credibility; the State disputed any implication that it deliberately misled the court, and counsel for the State urged the court to focus on whether the evidence could have been obtained with ordinary diligence before the plea.

Neither side could offer a definitive counterfactual about whether prosecutors would have filed murder charges regardless of how the medical examiner ruled. The panel asked for precise record references to credibility findings and to whether the trial court made a factual finding that the prosecutors' explanations were not credible. Counsel for both sides debated whether the trial court's factual credibility findings should be treated as binding on appeal under the substantial-evidence standard.

After extended questioning and rebuttal, the court took the case under advisement.

The court heard argument chiefly on the legal question whether the Diaz due-diligence exception allows a later felony-murder prosecution when the State suspected homicide but lacked a medical-causation opinion before a related guilty plea. The panel's decision will resolve whether the trial court properly granted dismissal on double-jeopardy grounds in light of the timing of investigative reports and the parties' conduct at arraignment and plea.

Next steps: the panel has taken the case under advisement; a written opinion resolving the legal question is pending.