Appellate Discretion to Permit Limited Nonparty Intervention After Trial: State v. Thompson

Introduction

In State v. Thompson (No. 103338-9, Aug. 28, 2025), the Washington Supreme Court addressed a recurring but previously unsettled procedural question in criminal litigation: may an appellate court allow a nonparty—who intervened in the trial court on a discrete issue—to intervene in the defendant’s criminal appeal for the limited purpose of litigating that same issue? Writing for the Court, Justice Mungia answered yes. The Court held that the Court of Appeals has discretionary authority under RAP 7.3 to permit limited appellate intervention by such a nonparty so long as the intervention remains confined to the issue the nonparty addressed below.

The facts present a classic privacy-versus-defense-access tension. Lester P. Thompson Jr. (defendant) was convicted of second degree murder (domestic violence) for the death of his former partner, Destinie Gates‑Jackson. Thompson’s trial defense posited that Ms. Gates‑Jackson died from an underlying medical condition rather than strangulation. To support that theory, he sought to subpoena years of Ms. Gates‑Jackson’s medical records. Her mother, Jeri Gates—acting as survivor/representative—made a limited appearance in the criminal case to oppose the subpoenas, emphasizing medical privacy and privilege. The trial court denied Thompson’s subpoena motions.

On appeal, Thompson assigned error to the denial of the subpoenas. Ms. Gates moved to intervene in the Court of Appeals to brief that single issue; a commissioner granted the motion, and the court denied Thompson’s motion to modify. Thompson then sought review in the Supreme Court, arguing that the Court of Appeals erred in permitting a nonparty to intervene in a criminal appeal. The Supreme Court affirmed the Court of Appeals’ order allowing Ms. Gates to intervene on that limited issue.

Summary of the Judgment

The Supreme Court held that where a trial court has allowed a nonparty to participate to protect a legally cognizable interest (here, the confidentiality of medical records), an appellate court has discretionary authority under RAP 7.3 to allow that same nonparty to intervene on appeal, provided the intervention is limited to the same issue the nonparty addressed below. The Court emphasized:

• The trial had concluded; appellate intervention confined to the same discrete issue does not disrupt a pending criminal trial.
• Policy and precedent (Mendez and Yakima Herald-Republic) have relaxed the older blanket rule against nonparty intervention in criminal cases.
• Requiring a separate civil action would complicate matters and potentially impair an indigent defendant’s ability to participate with appointed counsel.
• Appellate intervention is discretionary—not automatic—and must be limited to avoid transforming the intervenor into a second prosecutor.

Result: The Court affirmed the Court of Appeals’ order permitting Ms. Gates to intervene in the criminal appeal solely on the subpoenas-for-medical-records issue. The merits of Thompson’s subpoena challenge remain for resolution in the Court of Appeals; the Supreme Court decided only the propriety of intervention.

Precedents Cited and Their Influence

State v. Bianchi (1979)

In Bianchi, the Court rejected a newspaper’s trial-level intervention to unseal pretrial materials, noting the lack of criminal rules authorizing intervention and emphasizing that criminal cases adjudicate guilt or innocence between the State and the defendant. For decades, Bianchi was read as a near-blanket prohibition on nonparty intervention in criminal actions.

State v. Mendez (2010)

Mendez recognized that the landscape had changed since Bianchi. After trial, the Yakima Herald‑Republic intervened to unseal records under GR 15. The Court of Appeals upheld limited post-trial intervention, stressing:

• Lack of disruption to ongoing proceedings once trial had ended.
• Alternative routes (e.g., mandamus or separate civil suits) were inferior because they could exclude the defendant or deprive indigent defendants of appointed counsel.
• Emerging state and federal case law and GR 15 support controlled nonparty participation.

Yakima County v. Yakima Herald-Republic (2011)

The Washington Supreme Court expressly modified Bianchi and endorsed Mendez’s reasoning, holding that limited intervention after trial to revisit sealing decisions under GR 15(e) is permissible. This was a pivotal step away from Bianchi’s broad ban and toward a framework that tolerates limited, carefully tailored nonparty participation on ancillary issues in criminal cases.

Other Authorities

• RAP 7.3: Grants appellate courts authority to “perform all acts necessary or appropriate to secure the fair and orderly review of a case.” The majority grounds its holding in this catch‑all supervisory authority.
• RAP 2.3(a): Provides discretionary review of certain interlocutory rulings; relevant to the majority’s point that the nonparty could have sought review had the trial court granted the subpoenas.
• HIPAA, 45 C.F.R. § 164.502(f), (g)(1): The decedent’s healthcare privacy rights survive and may be asserted by a personal representative, here the mother.

Legal Reasoning

1) Trial-Level Participation and Limited Appellate Scope

The Court framed Ms. Gates’s trial-court participation—filing memoranda and arguing against the defense subpoenas—as a permissible, limited intervention the defendant did not oppose. That trial-level status and narrow scope were critical predicates for the appellate intervention: the Court of Appeals merely allowed continuation of the same limited role on the same issue.

2) RAP 7.3 as the Source of Appellate Authority

The Court located the power to permit limited appellate intervention in RAP 7.3’s broad mandate to secure the “fair and orderly review” of cases. Because Ms. Gates’s participation was confined to a discrete, previously litigated subpoena question, the Court deemed such intervention consistent with fair and orderly review rather than disruptive of the criminal process.

3) Post-Trial Context and Lack of Disruption

Echoing Mendez and Yakima Herald-Republic, the majority underscored that the trial is over; appellate consideration of whether the trial court erred in denying the subpoenas is already in play by the defendant’s appeal. Allowing the nonparty to brief that question (and only that question) neither expands the appellate issues nor delays trial proceedings.

4) Practical and Equity Considerations

The Court highlighted the pitfalls of forcing nonparties to litigate their interests separately:

• A separate civil or mandamus action might exclude the defendant or deprive an indigent defendant of appointed counsel—even though the dispute bears directly on the criminal case.
• Consolidating the controversy within the criminal case better aligns incentives, fosters full adversarial testing, and conserves judicial resources.

5) Adequacy of Representation by the State

Thompson argued that the State adequately represented any privacy interest, making nonparty intervention unnecessary. The Court of Appeals disagreed, and the Supreme Court deferred to that discretionary assessment. The Court also cautioned against labeling the intervenor a “second prosecutor”—the intervenor’s role is issue‑limited and does not supplant the prosecution’s authority to control charging and litigation strategy.

6) Narrowness and Discretion as Guardrails

Crucially, the Court did not announce a new categorical right to intervene. It conferred discretion on appellate courts to permit:

• Only those nonparties who participated at the trial level,
• On only the same limited issue(s), and
• Only when intervention aids “fair and orderly” review under RAP 7.3.

The Dissents and the Court’s Implicit Response

Justice Whitener (dissenting)

Justice Whitener would have prohibited intervention in the appeal, emphasizing:

• Structural limits: A criminal appeal has two parties—the defendant and the State. The rules provide for amicus curiae participation (RAP 10.6), not party intervention.
• Rule-based concerns: Washington criminal rules lack an intervention provision akin to CR 24; RAP 17.4(e) limits motion practice responses to persons with a recognized interest but does not authorize party intervention.
• Scope of GR 15: It provides procedures to seal or unseal court records, not a vehicle to block defense subpoenas or to bestow appellate party status.
• Victims’ rights: Constitutional and statutory victims’ rights are robust in the trial court yet do not extend to appellate intervention.

In short, the dissent perceives an impermissible expansion of party status in criminal appeals and would confine nonparty input to amicus briefing or separate civil proceedings.

Justice Gordon McCloud (concurring in dissent)

Justice Gordon McCloud expanded on institutional concerns:

• Separation-of-powers and prosecutorial role: Criminal prosecutions are the State’s case, not the victim’s; allowing victims or their representatives to intervene as parties risks distorting that structure.
• Appellate function: Appeals resolve legal errors based on the trial record; nonparty intervention at the appellate stage risks injecting personal interests and shifting focus away from purely legal questions.
• Rule design: Washington rules explicitly authorize third-party participation at the trial level (e.g., motions to quash under CrR 4.8(b)(4)) but not in the appellate court; the omission is intentional.
• Precedent limits: Mendez and Yakima Herald-Republic addressed trial-court unsealing under GR 15, not intervention as a party in a criminal appeal.

Majority’s countervailing themes

While not itemizing responses point-by-point, the majority’s logic addresses these critiques by:

• Anchoring appellate authority in RAP 7.3’s express grant to secure fair and orderly review.
• Requiring a trial-level foundation and a tightly circumscribed issue to prevent role distortion or undue duplication of the State’s position.
• Pointing to post-trial, narrowly limited intervention recognized in Mendez and Yakima Herald-Republic as a workable model in criminal cases, and extending that model to the appellate forum when doing so preserves fairness and efficiency.
• Emphasizing that a civil detour may disadvantage indigent defendants or fragment disputes that are better resolved within the criminal case.

Practical Impact and Future Litigation

What this decision changes

• Creates a clear appellate pathway: The Court of Appeals may, in its discretion, allow a nonparty who intervened at trial to intervene on appeal on the same issue.
• Sets guardrails: Appellate intervention must be limited in scope and justified under RAP 7.3 as conducive to fair and orderly review.
• Integrates victims’ and third-party interests: Individuals with legally cognizable interests (medical privacy, trade secrets, privileges) can, in appropriate cases, continue their limited participation on appeal without being relegated to separate civil litigation.

Likely areas of application

• Medical, mental health, or counseling records of victims or third parties.
• Privileged or confidential materials (e.g., treatment records, records implicating statutory privileges or HIPAA, sealed exhibits).
• Press or public access cases post‑trial (building on GR 15, Mendez, and Yakima Herald‑Republic) when the same stakeholders participated below.

Considerations appellate courts may weigh (derived from the majority’s approach)

• Whether the nonparty participated at the trial level and whether the appellate issue is identical.
• Whether the trial is complete and limited intervention will not disrupt ongoing proceedings.
• Whether separate civil proceedings would impair the criminal defendant’s ability to participate with appointed counsel.
• Whether the State adequately represents the nonparty’s distinct interest.
• Whether intervention will secure fair and orderly review under RAP 7.3.

Unanswered questions

• Standardization of factors: The Court did not formulate a formal multi‑factor test; expect development in future Court of Appeals decisions.
• Pretrial posture: The holding is most compelling post‑trial; whether and how it applies pretrial remains unlikely given Bianchi’s disruption concerns.
• Scope creep: Courts will need vigilance to ensure intervenors do not expand beyond the single issue or assume prosecutorial functions.
• Adequacy-of-representation findings: How robust must an appellate court’s explanation be when concluding the State is not an adequate advocate for the nonparty’s interest?

Complex Concepts Simplified

• Intervention: When someone who is not a party asks the court to participate in a case to protect a specific legal interest (e.g., privacy, privilege). Here, the nonparty’s participation was narrow and tied to subpoenaed medical records.
• RAP 7.3: A rule giving appellate courts broad supervisory power to do what is “necessary or appropriate” to ensure fair and orderly review. The Court used this as the authority to permit limited intervention.
• Amicus curiae vs. intervention: An amicus (“friend of the court,” RAP 10.6) offers information or perspective without becoming a party. Intervention makes the nonparty a limited participant on a defined issue, with rights to brief (and sometimes argue) that issue.
• GR 15: A general rule governing sealing, redaction, and destruction of court records; post‑trial, it recognizes limited third‑party participation to seek unsealing or to be heard on sealing matters.
• HIPAA and state medical privacy: Federal and state laws protect health information, including for deceased persons (HIPAA protects for 50 years after death). A decedent’s personal representative (here, the mother) may assert those privacy rights.
• Protective order: A court order that limits disclosure or use of sensitive information. Protective orders can balance privacy interests with the defendant’s right to obtain material information for a defense.
• Particularized showing: When seeking confidential records, a defendant generally must show a specific, non‑speculative need for information likely to be material to the defense—not just a generalized fishing expedition. (Note: the Supreme Court did not decide whether that standard was met here; it ruled only on intervention.)

Practice Pointers

• For defense counsel: If you do not object to a nonparty’s limited participation at trial, anticipate that the same nonparty may be allowed to intervene on appeal on that same issue. Preserve objections and create a clear record about scope and necessity.
• For prosecutors: Consider whether the State can adequately represent third‑party interests (e.g., privacy) and whether limited intervention would aid fair and orderly review without duplicating the State’s role.
• For nonparties (e.g., victims’ representatives): A limited trial‑level appearance opposing subpoenas or protecting confidentiality can be extended, at the appellate court’s discretion, to the appeal on that same issue. Keep the scope narrow and consistent throughout.
• For appellate courts: Use RAP 7.3 as a tool to manage participation. Require a tight nexus between trial‑level participation and the appellate issue, and articulate why intervention helps secure fair and orderly review.

Why This Case Matters

State v. Thompson fills a doctrinal gap created by the evolution from Bianchi’s broad prohibition to Mendez and Yakima Herald‑Republic’s acceptance of limited, post‑trial nonparty participation. It extends that evolution to the appellate forum—but only in a controlled way. The decision:

• Strengthens mechanisms for protecting third‑party privacy and other collateral interests within criminal litigation without rerouting disputes into separate civil tracks.
• Protects indigent defendants’ participation (with counsel) in ancillary disputes that bear directly on their criminal cases.
• Preserves prosecutorial primacy by restricting the intervenor’s role to a narrow, previously litigated issue and by emphasizing court discretion.

Conclusion

State v. Thompson establishes an important, carefully cabined procedural rule: appellate courts in Washington may, in their discretion under RAP 7.3, permit limited intervention by a nonparty in a criminal appeal when that nonparty intervened in the trial court on the same discrete issue. The majority’s approach harmonizes modern practice (post‑Bianchi) with the structural constraints of criminal adjudication by insisting on narrow scope, post‑trial posture, and case‑management discretion. While the dissents underscore significant separation‑of‑powers and rule‑based concerns, the holding offers a pragmatic path that both protects legitimate third‑party interests (like medical privacy) and preserves defendants’ ability to participate with appointed counsel in collateral disputes that affect their criminal cases. As appellate courts apply Thompson, expect development of factor‑based guidance for when such intervention truly advances the “fair and orderly review” of criminal appeals.