(dissenting) — The question posed is whether the trial court abused its discretion under CrR 8.3(b), which allows a trial court to dismiss criminal charges for governmental misconduct. Upon the prosecution’s violation of a court order in each case to arrange an interview between a key prosecution witness and the defense by a date certain, the court dismissed pending charges. Contrary to the majority’s conclusion, I find no abuse of trial court discretion and would affirm the trial court.
CrR 8.3(b) provides in part:
The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.
“Governmental misconduct” can be simple prosecutorial mismanagement. State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993). We review a trial court’s dismissal under CrR 8.3(b) for manifest abuse of discretion, and will reverse only when the dismissal is “ ‘manifestly unreason*14able, or is exercised on untenable grounds or for untenable reasons.’ ” State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997) (quoting Blackwell, 120 Wn.2d at 830). But these dismissals were supported by evidence of misconduct which prejudiced the defendants’ right to a fair trial. The dismissals were therefore neither manifestly unreasonable nor exercised on untenable grounds.
The majority argues the trial court abused its discretion claiming there was insufficient misconduct to justify dismissal as a matter of law. The Court of Appeals characterized the misconduct as breaking a promise to the defense to secure a meeting with its witnesses due to the witnesses’ intransigence and excused the misconduct by claiming the prosecution lacked power to legally compel the witnesses to appear for a meeting in any event. State v. Wilson, 108 Wn. App. 774, 780-81, 31 P.3d 43 (2001); State v. Taylor, noted at 111 Wn. App. 1039, 2002 Wash. App. LEXIS 1039, 2002 WL 974640, *3, aff'd, 149 Wn.2d 1, 65 P.3d 657 (2003). In fact, however, the prosecution in each case not only failed to keep its promise to arrange the meetings, it violated a court order which required it to do so.
The majority does not mischaracterize the claims, as did the Court of Appeals, but argues prosecutors made their best efforts to comply with the orders and therefore should not be faulted. Majority at 3-4. But the record shows the prosecutors had the actual power to produce these witnesses and, in failing to do so, did not make their “best efforts” to comply.
In Wilson the prosecutor informed the judge that he had failed to arrange the interview by the specific date ordered by the court but that now the prosecutor was willing to take additional steps to avoid dismissal, including a personal visit to the witness’s home and/or seeking to obtain a material witness warrant. 3 Report of Proceedings (RP) at 5. The judge asked why a material witness warrant had not been sought earlier, and the prosecutor answered that he had just received authorization from his supervisor. 3 RP at *159. No specific reason was given why the prosecutor had not previously attempted to visit the witness at his home other than that the prosecutor was on vacation part of this time. 2 RP at 10. Similarly the material witness warrant was not obtained because the prosecutor’s supervisor did not timely authorize it. Thus, it cannot be maintained that the prosecution did in fact make its best effort to comply with the court order or that it lacked power to compel a meeting with its witness in each case.
Similarly, the trial court in Taylor ordered an interview take place by March 2, 2001; however, the interview was not arranged by the deadline, and still had not been arranged as of the hearing on March 7, 2001 (though the prosecution asserted that the witness would finally be available at 2:00 p.m. that day). RP at 6. Again the record does not show any attempt by the prosecution to produce the witness by a material witness warrant or by other means beyond a few phone calls.
At minimum there was prosecutorial mismanagement in each of these cases leading not only to broken promises but also to violation of a court order previously entered without objection. Such mismanagement more than satisfies the misconduct required by CrR 8.3(b). Blackwell, 120 Wn.2d at 831.
The majority contends the misconduct of the prosecution was not sufficiently “egregious” to justify dismissal under CrR 8.3(b). Majority at 4. However, the majority’s threshold requirement of egregiousness is not found in the plain language of CrR 8.3(b). Moreover, it is an invitation to subjective ad hoc decision making. The stated threshold by the clear language of the rule is that the misconduct must cause “prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” CrR 8.3(b). Once misconduct is shown, the trial court may dismiss if there is prejudice to the accused’s right to a fair trial. The remedy is extraordinary because only misconduct causing prejudice to the right to a fair trial authorizes dismissal. See Blackwell, 120 Wn.2d at 830 (citing City of Spokane v. *16Kruger, 116 Wn.2d 135, 144, 803 P.2d 305 (1991)). To hold that the misconduct must not only prejudice the defendant but also be “egregious” signals this court will tolerate some prosecutorial mismanagement resulting in prejudice to a defendant’s constitutional right to a fair trial. Moreover, the majority misses the obvious point: if misconduct causes prejudice to a defendant’s right to a fair trial it is egregious for just that reason.
The majority simply declines to consider whether this misconduct prejudiced the defendants. Clearly it did. The prosecution first assumed the burden to arrange interviews with its intransigent witnesses, inviting reliance by the defense and the court. Later, when the court ordered the prosecution to arrange the interviews, the defense was again induced to rely on the promise backed up by a court order. As a result the interview which was necessary for defense trial preparation had not been arranged in advance of trial. The right to adequate trial preparation includes the right to conduct a full investigation of the facts, including the right to interview witnesses in advance of trial. State v. Burri, 87 Wn.2d 175, 180-81, 550 P.2d 507 (1976). To pursue belated interviews would have forced the defense to seek further delay of the trial itself should any follow-up appear necessary. A forced choice between the right to a speedy trial and the right to adequate trial preparation prejudices the right to a fair trial. Michielli, 132 Wn.2d at 240 (citing State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980)).
I would therefore reverse the Court of Appeals in each case, affirm the trial court, and dismiss.