Robert F. Utter: Justice's sailor

The Lord raised up judges…
- Judges 2:16
Justice Utter aboard his sailboat. John Hughes for The Legacy Project
Justice Utter aboard his sailboat. John Hughes for The Legacy Project
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A sailboat racer and a pilot, Robert F. Utter has sailed the sea and soared the sky, but his voyages of discovery have also taken him to what he describes as the "sacred sanctuary of the conscience." His life's work is to be a man of faith and a judicious judge.

On March 30, 1995, after 23 years on the Washington Supreme Court, he told the chief justice he was resigning. He could have walked across the street, up the steps to the Capitol and through the marbled halls to Gov. Lowry's office. He could have called a news conference with a gaggle of reporters and TV cameras. But that didn't feel right either. This decision was too personal. Instead, he composed a formal letter, sent it over to the governor, then called the veteran Associated Press correspondent, John White, who got the scoop because their sons once swam on the same team.

"I have reached the point where I can no longer participate in a legal system that intentionally takes human life," Utter told the governor. "...We are absolutely unable to make rational distinctions on who should live and who should die."

In 1971, when he was 41, Utter had become one of the youngest justices in state history. He dissented in two dozen death penalty cases before concluding he was tilting at windmills. Killing to satisfy its visceral appetite for retribution, the system "is fatally flawed," the judge said. "Like lightning," the death penalty "strikes some but not others in a way that defies rational explanation." Worse yet, Utter asserts, an allegedly "modern civilized society" has executed at least 48 innocent people in the past four decades. Then there are the close calls: More than 100 people on Death Row across America have been freed in recent years based on DNA tests and other new evidence.

Utter believes that a life sentence without the possibility of parole protects society just as well - and at far less expense. In 2007, New Jersey became the first state to ban executions since the U.S. Supreme Court reinstated the death penalty in 1976. Utter notes that the governor there commuted the death sentences of 10 men to life imprisonment without the possibility of parole in the wake of the revelation that each death sentence cost the state $4.2 million. "It's 10 times more expensive to kill them than to keep them alive," Donald McCartin, once known as California's "Hanging Judge of Orange County," told reporters early in 2009. A month later, New Mexico Gov. Bill Richardson repealed the death penalty in his state, saying, "I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime…"

While his stand on the death penalty is the most dramatic chapter in a 55-year legal career, Utter's jurisprudence is prolific. His longest lasting contributions may well be in the areas of state constitutional law, environmental law, criminal procedure and eliminating bias from jury instructions. In 1978, he wrote an opinion that established a battered woman's right to self defense. He was the lone proponent of the "battered woman theory" when the debate began behind closed doors, but the eloquence of his arguments carried the day.

YMCA youth and government award Justice Utter is congratulated by former governor Dan Evans in 1997 as the YMCA's Youth & Government program announces it has named its top award in his honor. It is presented annually to "an individual of unquesti onable integrity who exemplifies outstanding citizenship, leadership and character." Chris Gregoire, then Attorney General, looks on at center.

Utter's advocacy for victims' rights and compensation counters the charge that he is a bleeding-heart liberal. For 40 years, he has been saying that victims too often are the forgotten people in the criminal justice system. "Once the immediate reactions of anger, fear and vengeance have been verbally expressed" in the wake of a crime "the average citizen washes his hands of all responsibility and leaves it to the official avengers." The system's "primary client is the victim," the judge told the Seattle Rotary club in 1972 in a speech that made headlines around the state. It was one of many such talks he would give in a typical year - at PTA meetings, Prayer Breakfasts and Bar Association gatherings. Early on, he dedicated himself to harnessing what he calls "The power of one plus One."

Utter is a tireless mentor. He was a co-founder in 1958 of the Big Brothers chapter in Seattle, the state's first; helped launch the Thurston-Mason chapter in 1982 and played a key role in the YMCA's Youth & Government program, which in 1997 named its top award in his honor. It is presented annually to "an individual of unquestionable integrity who exemplifies outstanding citizenship, leadership and character." (The 2009 winner is Secretary of State Sam Reed.)

Although Utter has won countless awards, you'll find only a couple on his shelves. He takes his satisfaction from the lives he has saved or changed. From the bench and on the streets he saw "the countless confused, accused, misused, strung out ones and worse," as Bob Dylan once wrote, and he felt compelled to intervene.

In the years since he left the court, Utter has been engaged in judicial, civic and political activism on multiple fronts around the world. He has a national reputation as a legal scholar and mediator and an international following as a teacher. The courage of judges in emerging democracies inspires him. Some of his students have been gunned down or blown to bits in places where theocratic fascists fear an independent judiciary. One was shot and killed as he drove to work, and an insurgent group boasted that the murder ''would make God and the Prophet very content.''

Close friends and loved ones have seen what Utter acknowledges is an "undercurrent of sadness." There have been dark days and long nights when he has struggled with the heartache of a daughter born with serious physical and emotional challenges. He is appalled by hate, hunger and injustice and has no easy answer for the never-ending question of why bad things happen to good people. He agonized over his discovery that a vulnerable young woman had been sexually victimized by a minister he trusted.

Justice Utter and Betty Bob and Betty Uttter on the deck of their sailboat, Daring Spirit.

He has waged a winning battle with cancer and Parkinson's disease. Others have endured far worse, he emphasizes, adding that pain can be a profound "teaching lesson." Life is a celebration, the judge believes, "and it should be lived that way, no matter how much pain is there."

Through it all he has been sustained by his faith and the love of his life, Betty Utter - teacher, friend, fellow sailor, the woman who never balked when he brought home stray kids who needed a hot meal and the intervention of a caring grownup. Betty is a remarkable person in her own right. She was a highly regarded teacher, taught counseling at Saint Martin’s College and served as president of the Associated Ministries of Thurston County. In the 1970s, she helped launch an ecumenical religious education program for the mentally handicapped. It grew to embrace about a dozen churches in Thurston County. When they lived in Seattle, Friends of Youth, a church-sponsored shelter for teen-age boys, was one of Bob and Betty’s early causes. In their retirement years, the Utters have been working with the Rural Development Institute, which promotes social justice by helping poor people around the world secure land rights. Betty also has volunteered as a mediator with the Dispute Resolution Center of Thurston County.

Betty says Bob was "tall, dark and handsome" when they first met on campus at Linfield College in Oregon in 1949. He's gray now and quips that with age he has also become "less tall" - but she's "still short." He's a striking man, with vivid blue eyes, a gentlemanly demeanor and a puckish sense of humor. Especially in the days when he puffed a pipe, he looked just like the judge you'd get if you called Central Casting.

He is soft-spoken, sometimes hesitating in mid-sentence to choose just the right words. His smile is so engaging, his manner so unpretentious that you'd never guess he is fundamentally shy. You'd never imagine that in high school he was an underachiever with no real notion of what he'd like to be when he grew up. Well, he knew one thing for certain: Despite his father's prodding, he didn't want to join him selling life insurance.

Early heartbreak

Robert French Utter was born in Seattle on June 19, 1930. A few months before his sixth birthday, his mother died in childbirth, together with the infant son she was carrying. Besse Utter was 28 years old when she bled to death on April 7, 1936. It was a devastating blow to her husband and the two young sons she left behind. In 1937, John Utter remarried. Bob's stepmother was a religious education director. Despite her strong faith, acquiring two young sons was as difficult for Elizabeth Utter as it was for Bob and his younger brother, Fred. She wasn't a bad person, Bob emphasizes, but she could never replace the mother he had lost. Happily, in her last years, they reconciled completely. But when a first grader loses his mother, he carries some of that heartbreak and insecurity for the rest of his life. In grade school especially, Bob felt like a "wounded bird."

Baptized at the age of 12, Bob was a somewhat reluctant churchgoer as a teenager. He knew his Bible, but the sermons weren't that stimulating. He was already bored and bemused by tedious doctrinal dustups - "sprinkling vs. dunking," for instance, as he puts it wryly. He found literature, history and politics a lot more interesting. The highlight of his teenage years came in 1948, when as a senior at West Seattle High School he participated in the second annual Youth Legislature in Olympia. "It was the revelation that a whole new world existed. I found out how government was supposed to work." During his career on the bench, Utter served as president of the Youth & Government Board for 13 years.

In 1948, he was off to Linfield, the Baptist school at McMinnville. After two years, he opted to transfer back home to the University of Washington, where he majored in English Literature and Political Science. During his junior year, he also weighed the idea of becoming a minister, but "didn't feel that strong of a calling." In that era, a promising student could gain "early entry" to the UW Law School without a four-year degree. That intrigued him. Supreme Court Judge Matthew Hill was a member of the Seattle First Baptist Church and Utter concluded that a law degree would be a good fit for a career in public service. The Korean War temporarily changed his plans. Utter enlisted in the Air Force the summer before he began law school, hoping to become a fighter pilot. A bum shoulder ended that idea and put him back on campus. (Some 30 years later, he got his pilot's license and went on to earn instrument ratings. Flying turned out to be fun, but less spiritual than sailing, although Utter figured he must be on the right side of the Lord when he safely made a wheels-up landing on the rain-slickened main runway at the Olympia Airport in his Cessna 210.)

The Utters on their wedding day, December 28, 1953 The Utters on their wedding day, December 28, 1953.

Betty Stevenson, a petite girl who was as bright as she was pretty, had also returned home to Seattle and the UW to pursue her teaching degree. They had dated during his sophomore year at Linfield. This time they fell in love and were married on Dec. 28, 1953. "We bought a sailboat before we bought a house," Bob notes. "We had our priorities straight."

Graduating from law school in 1954, Utter jumped at the chance to become Judge Hill's law clerk at the Temple of Justice in Olympia. Matthew Hill, then 60, was once described by an admiring press as "a tireless worker in civic, church and charitable affairs, and a public speaker of wide repute." The last part was particularly true. Hill loved to give speeches on every imaginable topic, from politics to parables. Earlier in his career, the Republican had sought election to the State Legislature and Congress, losing to future Washington State Democratic icon Warren G. Magnuson in 1938. Being a judge was Hill's real calling. Fatherly and wise, he saw to it that his law clerks - especially good Baptist boys like Bob Utter and Charlie Smith, another future judge - got a wide-ranging education not only in jurisprudence, but in morals and manners. Being Judge Hill's law clerk was a lot like being an admiral's aide-decamp. You stayed up late, got up early, made sure your i's were always dotted and also did the driving. It was a great year.

After 18 months as a deputy with the office of "Mr. Republican," King County Prosecutor Charles O. Carroll, Utter joined a Seattle law firm in 1956. The job offered a lot better pay and the learning experience of dealing with a broad base of clients. His spare time was devoted to helping young people, church activities and starting a family of his own with Betty. Then their first of three children, Kim, was born with multiple handicaps, including the inability to cry until a surgical procedure was done. The young couple was under enormous stress, emotionally and financially.

A phone call put them at a life-changing crossroads. It was a King County Superior Court judge who had been impressed with 29-year-old Bob Utter's intelligence and poise in his courtroom. Would Bob like to become a Superior Court commissioner assigned to Juvenile Court? Utter didn't even know where the Juvenile Court was, much less a lot about the laws governing juvenile delinquency. What he did know was that he cared about kids and felt a calling to make a difference. Lawyers, after all, are supposed to help people. Still, the job paid half as much as he was making with the law firm. Would that be fair to his family? Their daughter clearly would need ongoing medical attention.

"Take all the time you want to decide," the judge joked, "but we have to know tomorrow."

He and Betty talked about it, prayed about it. They decided it could be the chance of a lifetime - or maybe a disaster. But they were young, imbued with faith and concluded that if he didn't give it a try they would always wonder what might have been. "So within 24 hours the course of my life was dramatically changed," Utter recalls. And for the better, too, as it quickly turned out, because he immediately encountered a boy who needed a stand-up man in his life.

Into his court one day in 1959 came Charles Russell, a fatherless 15-year-old who had shot his mother's boyfriend to stop him from beating her. "Over the years, I've always told Charlie the only mistake he ever made was just shooting him in the foot," the judge quips. "I could tell that he was a kid with a world of potential. We found a spot for him at the Jessie Dyslin Boys Ranch. I had good friends with deeper pockets who were interested in helping me help troubled kids."

"Until I met Bob Utter, I had no future," says Russell, now 66. "I couldn't really read or write and I was getting into a lot of trouble. I had third- or fourth-grade reading skills. By intervening in my life, he gave me a series of chances, and that's important because one chance doesn't always work, especially with kids. For me, there was no one thing that turned my life around. It was a cascade of events and a series of chances… The Boys Ranch was important, but it was Bob who was always there. I was slightly dyslexic, but I could do chemistry and math and he encouraged me. I didn't have anybody else to call."

At Washington State University, Russell earned degrees in biochemistry, zoology and entomology. ("That's bugs," he explains.) Then he earned a Ph.D. in ecology. "I've never gone where I thought I was going to go," he says. "I taught at the University of Costa Rica and eventually worked on a road through the mountains of Peru, then on a dam project in El Salvador. I went from crops to forestry to infrastructure projects." Russell now owns a tour company - Let's Tour Seattle - working with cruise ships and museums. He and Utter talk often. "I'm constantly amazed at his level of morality - his true belief in people who I would have given up on a long time ago. Sometimes I shake my head at his - I can't call it naiveté. It's just faith."

The tears well up in Utter's eyes when he recalls all the Charlies he has met. His only regret is that he couldn't help them all. Betty has always shared Bob's commitment to helping children. But there were times, she admits, when Bob's cheerful line, "Guess who's coming to dinner?" prompted a sigh.

"And who is my neighbor?"

As he became a juvenile court commissioner, judge, Big Brother and active Christian layperson, Utter grew increasingly frustrated with theological silo building. He wishes more people would cut to the chase and just read and heed Christ's words. The Parable of the Good Samaritan early on became his North Star. In Luke, Chapter 10 verses 25-37, we encounter a lawyer who decides to see if Jesus is fast on his feet:

"Teacher," he asked, "what must I do to inherit eternal life?"
"What is written in the Law?" Jesus replied. "How do you read it?"
The lawyer answered: " 'Love the Lord your God with all your heart and with all your soul and with all your strength and with all your mind. And, 'Love your neighbor as yourself.' "
"Exactly," Jesus replied. "Do this and you will live."
But the lawyer probed for a definition: "And who is my 'neighbor'?"
Jesus told the story of a man who was set upon by robbers while traveling from Jerusalem to Jericho. They beat him, took his clothes and left him half dead and naked alongside the road. A priest happened by, but when he saw the hapless victim, he moved to the other side of the road. Shortly thereafter, a Levite did likewise. At last, a Samaritan took pity on the victim, bandaging and salving his wounds. Then he put the man on his own donkey, took him to an inn and made him as comfortable as possible. The next morning, he gave the innkeeper two silver coins. "Look after him," the Samaritan said, "and when I return I will reimburse you for any extra expenses you may have incurred."
"So," Jesus asked the lawyer, "which of these three do you think was a neighbor to the man who fell into the hands of robbers?"
"The one who had mercy on him," said the lawyer.
"Go and do likewise," Jesus advised.


I simply have to face a world where I know unjust things occur. I know that God is love, and I rebel against the injustice I see in this world.



Utter fervently believes that Jesus is emphasizing that compassion should be for all people, and that fulfilling the spirit of the law is just as important as fulfilling the letter of the law. Moreover, your "neighbor" isn't just the guy next door; it's everyone in the family of man.

Juvenile Court was "a real eye-opener" for Utter, who had "no realization of the extent of deprivation children faced in our society." It was bad then, and it's dramatically worse today, the judge says. "I probably heard at least 3,000 cases each year, and I came to growing realization that love is the absolute cornerstone of the meaning of family life. Parents can provide everything from material and educational standpoints, but if children have not experienced love and an appreciation of their self-worth, they have nothing to build on." More importantly, he came to see that when children get into trouble society writes them off at its peril. Given the right intervention, a second chance, even a third chance, problem kids can become responsible adults with children of their own who won't be neglected. Neglect begets neglect, Utter emphasizes.

"I have seen things which I don't understand and which have torn my heart apart. Children who are abused sexually and physically, who are involved in drugs and prostitution. These would leave anybody questioning who sees this time and time again. I simply have to face a world where I know unjust things occur. I know that God is love, and I rebel against the injustice I see in this world.

"The most difficult thing for me during those years in Juvenile Court was to see marvelous human beings who I knew could make it if they had just a little more help from others - a few hours of a person's day, the impetus for a little more education. I can only say, 'God, I'll do a little bit. I'll do as much as I can and then leave it to You to provide the answers.' "

At the next level, there were even more terrible questions and elusive answers.

"To Die Is Not Enough"

Robert F. Utter’s scrapbook Robert F. Utter's scrapbook.

After five years as a Juvenile Court commissioner, 34-year-old Robert Utter had developed a reputation as a bright and thoughtful judge and civic activist. Besides his work with Big Brothers, in 1964 he was the co-founder and president of Job Therapy Inc., a nationally recognized vocational and mentoring program for convicts and those on parole. Also active in the YMCA and PTA, he was a deacon in the Seattle First Baptist Church. The Jaycees named him "Seattle's Most Outstanding Young Man" in 1964. Judges, law enforcement officers and other admirers urged him to run for the King County Superior Court bench. There were two other candidates, but Utter campaigned tirelessly, striving for "a knockout punch" in the primary. He had given more than 200 talks to PTAs and other groups in the past year, and it paid off. He took fully 60 percent of the vote.

Shortly after his re-election, without opposition, in 1968 Judge Utter met a murderer who changed his life and whose life he would change. To understand why Robert Utter feels so passionately that the death penalty is just plain wrong you need to know about Don Anthony White.

Don Anthony White was a 22-year-old black man who'd been in and out of reform school, mental institutions and jail. On Christmas Eve, 1959, he stabbed to death a black longshoreman when they quarreled while drinking. White got the "weird shakes" and "just went into a mad rage." Afterward, he said he "went wandering" and found himself in the laundry room of a housing project where as a child he used to take refuge for hours in the clothes dryers. ("It seemed like nothing could get to me in there.") As he started to leave, a gray-haired woman "banged the door by the dryers." In a flash, he crumpled her with a savage blow. Then he raped her and left her dying.

In truth, he'd attacked the woman first and the man some 15 hours later. Clearly in one of his "fogs," White confessed to the killings without benefit of legal counsel. He told his parole officer, "I should've been in the bughouse a long time ago. … I get wound up and reach a point where something has to happen …something violent… bam!" He slammed the table with his fist. "If I get a lawyer and he tries to get this reduced from 'murder first' to 'murder second' I'm not going to let him. It probably would be better if I did drop off the end of that rope."

White had been raised from infancy by an emotionally disturbed foster mother. She told bizarre, rambling stories about how she had acquired the child on a visit to Kansas. Her ex-husband testified that when she was angry with Don she would tell him he'd been thrown in the garbage and "nobody didn't want him." Sometimes "when she would get mad, she would hold his head down between her legs" and whip him with the cord to the iron. Don was often so enraged over the whippings and other abuse that his foster sister thought he "could've murdered her or something. His eyes would get real funny lookin' …bright red … like a person who was outta their mind." Don attempted suicide at the age of 5. "That damned garbage can" was seared into his brain. "Oh, God, that used to bug me!" he told a court-appointed psychiatrist.

A perpetual truant and runaway since the age of 7, Don Anthony White was extraordinarily bright, which other children resented. He told counselors that he had endured non-stop racism at school and the children's mental health center, where he was the only black child. He fled the classroom one day, sobbing that he hated being called "nigger." At home, he'd go into a psychotic, trancelike state and "get the awfullest headaches," his foster mother said. Then he'd break the furniture and threaten to burn the house down. In 1951, the 14-year-old was diagnosed with childhood schizophrenia that was rapidly progressing into the psychotic symptoms seen in adult sufferers. At the rate he was descending into madness, they said he was bound to seriously injure or kill someone. When they first sat side by side, one of his court-appointed attorneys said he was afraid his client might kill him. White soon realized, however, that someone actually genuinely cared about him. They were trying to save his life.

The attorneys worked tirelessly to demonstrate that he should be committed to an institution for the criminally insane, but on May 27, 1960, an all-white jury found him guilty of the murders and recommended that he be put to death.

The next eight years were punctuated with despair, resignation and hope. White's attorneys never gave up. In the King County Jail, then on Death Row at Walla Walla, Don's other frequent visitors included Quakers, nuns and priests - even the Roman Catholic bishop of Spokane. A librarian saw to it that he received books "to challenge his capable mind." Investigative reporters took up the cause of mentally ill inmates. Among them was Donald Delano Wright, who wrote a prize-winning series on the death penalty for The Seattle Times.

By 1963, the murderer had made remarkable progress. He stunned the judge who was about to sign his death warrant by thanking him for his courtesy. White said his two lawyers "were the greatest" and praised the prosecutor, who was "a gentleman all the way." White said: "I abhor the nature of the crime that I am here for, yet I hope that other people who commit similar crimes will benefit from it somehow, that the death penalty will pass from our scene and that we will all understand a crime of this nature a little bit better." The judge was stunned at the transformation. He called it "a magnificent thing - one of the finest statements I have ever heard in open court."

Death penalty opponents picket at the steps of the Capitol, urging  Governor Al Rosellini to grant Don Anthony White clemency. Death penalty opponents picket at the steps of the Capitol, urging Governor Al Rosellini to grant Don Anthony White clemency.

Don Anthony White found himself, God and, in time, a full measure of sanity. The state still wanted him dead. On the eve of Palm Sunday, 1964, with White's date with the gallows just days away, Joan Baez, the famous folk singer, and a dozen pickets staged an all-night vigil in front of the Capitol at Olympia. Inside, Gov. Al Rosellini was mulling a swarm of pleas for clemency. He invited Baez and some of the other death penalty protesters into his office. Rosellini's Republican opponent in his upcoming bid for re-election, State Rep. Dan Evans of Seattle, believed the death penalty was "barbaric" and had "not proven to be a deterrent to crime." Finally, Gov. Rosellini granted a 30-day stay of execution.

The appeals and petitions dragged on. Evans went on to defeat Rosellini and fought a relentless but losing battle against capital punishment during his unprecedented three terms as governor.

Months became years. The State Supreme Court repeatedly turned a deaf ear. Undeterred, White's lawyers kept advancing the key issue that he had been interrogated by police without benefit of counsel at a time when he was emotionally defenseless.

Then, on Good Friday, 1966, Don Anthony White's conviction was overturned by a federal judge in Boise. Resolute, prosecutors filed an appeal with the U.S. 9th Circuit Court in San Francisco. In 1967, the appellate court granted White a new trial in King County Superior Court. The judge was to be Robert F. Utter, whose work with young offenders and strong commitment to rehabilitation seemed heaven sent for Don Anthony White. The young judge also treated all before him with courtesy.

Don Anthony White with defense counsel. Don Anthony White, flanked by his lawyers, James C. Young, left, and David A. Weyer in 1963.
Courtesy Seattle Post-Intelligencer.

Hopes sagged at the defense table when Utter promptly sided with the prosecution, ruling that White's confession and the tapes of his interrogations could be admitted into evidence. "A new trial is not a new case," the judge said. Crucially, however, Utter would not let the jury see an inflammatory morgue photo of the woman White had killed. Her scalp had been shaved for the autopsy, and the first jury had been horrified by the image. Utter also allowed a defense psychiatrist to testify that White was out of his mind when he committed the murders. The rape, the psychiatrist added, was not of a brutal nature and "may actually have represented some kind of a primitive, infantile attempt to have a sexual relationship with a mother-person…"

The defendant told the jury he was not yet fully safe to be at large - but what good would killing him do when he might yet do some good himself? White was making certain that his own attorneys could not fashion a defense based on the assertion that he was insane in 1959 but now should be set free. Further, during his first trial, a psychiatrist testified that the killer was irreversibly psychotic. In the second trial, Utter notes, White showed no signs of psychosis, "one more example of our inability to judge with finality that there is no hope of changing a person."

In the summer of 1968, the King County jury found White guilty of both murders, but rejected the death penalty. The next day, Judge Utter asked White if he had anything to say. He did: "Martin Luther King said that there is a mountaintop. I have been clawing to get there for a long time, and I won't stop now…"

The prosecution urged Utter to recommend to the State Parole Board that White's minimum term be set at life, without possibility of parole. "The judge flatly refused to interfere with the Parole Board's discretion," Donald Delano Wright wrote in his riveting book about the case, To Die Is Not Enough.

"The transformation in Don Anthony White over the course of those eight years was truly remarkable," Judge Utter wrote. "He had graduated from high school and Walla Walla Community College in prison, studied architecture and drafting through correspondence courses and became an accomplished painter, able to portray with brushes and canvas many of the conflicts that tormented his soul."

White's brother, Karl, an outreach ministries pastor in Georgia, says that "with the discovery that people actually cared about him as a person, he finally really started coming out of the psychosis and finding himself."

With time off for good behavior and the support of Gov. Evans, Don Anthony White, Inmate No. 117121, was sent to a work-release program at Western State Hospital in Steilacoom in 1976. The rest of this story, unfortunately, lacks an entirely happy ending.

White began working for the Tacoma Urban League and was a popular employee. In 1979, however, some of the old demons returned. Don was in "emotional turmoil" when he was subpoenaed as a defense witness in a death penalty case. Asked to describe what it was like to live in the shadow of death, he told of hearing the trapdoor spring open as his nextdoor neighbor on Death Row was hanged. To relive those moments "was a very harrowing experience for someone who was locked up for so long," an Urban League social services director told reporters.

Don failed to return to the halfway house and was reported to police as AWOL the next morning. "Everybody - his sponsor, his fiancée, all the people who are supportive of him, are all just shocked," the state work-release supervisor said.

White told his brother he had to get away and took off on what he called "a month-long vacation" across the country. Then he turned himself in and was sentenced to five more years in prison for escape. He ended up at the correctional center at Vacaville, Calif., where he helped with the orientation of new correctional officers and prisoners. Don did his last two years back in Washington State. Paroled again in 1987, he left Tacoma to become director of the Abolition of the Death Penalty Project for the American Friends Service Committee in Oakland, Calif. He appeared on the Oprah Winfrey show and spoke frequently before church and civic organizations. He often appeared as a witness in death penalty cases. That part was still the hardest. Being in court "always brought back a lot of memories from his trial," his brother recalls. "He used to tell me, 'I'm alive, well and enduring.' "


...at no point in the life of a human being are we wise enough to say a person is beyond redemption.



There was more to endure. He was badly injured by a mugger in Oakland in 1991. Decades of chain-smoking, stress and diabetes also took their toll. Don Anthony White died in Oakland on Feb. 23, 1995, after suffering several strokes, but the Rev. White says his brother had happily married and was a productive, loving person. He and Justice Utter say that Don's life story stands as one of the most compelling cautionary tales against capital punishment. "It makes no sense," Don Anthony White told reporters not long before his death. "It doesn't bring anybody back."

"Judge Utter, in the words of one of Don's attorneys, 'permitted introduction of evidence covering the broadest spectrum of rehabilitation,' " Karl White recalls today. "He took a stand for equal justice. For a young judge to go up against the system was really impressive, not even considering the racial climate at the time."

Utter's actions "caused me to do a lot in the ministry, especially with young African-Americans and Latinos … working with youth at risk. His conclusion that the death penalty is not fair, not a deterrent and, in his words, an 'unjust law,' " amounts to an indictment of a prison system "that merely warehouses people and does not rehabilitate," Pastor White has written.

The moral of the Don Anthony White story is that "at no point in the life of a human being are we wise enough to say a person is beyond redemption," Utter believes, adding that a life sentence without the possibility of parole protects society just as well.

A new appeal

In 1968, Gov. Evans, impressed by Judge Utter's track record on and off the bench, named him to the newly-authorized Washington Court of Appeals. Utter ran unopposed for a full six-year term the following year.

Utter kept pushing for prison reform and community-based counseling and detention facilities that could serve as workrelease centers. "The failure to provide realistic, post-institutional support for men until they can be reintegrated back into the community would seem to practically guarantee they must return to crime to provide the basic necessities of food, clothing and shelter," he wrote during that era. He was still active in Job Therapy Inc. and also outspoken on victims' rights. "Dangerous offenders must be removed from the streets," he told the Young Lawyers group in King County, also emphasizing that 85 percent of the men in prison are not dangerous offenders. If society thought it was making things better by warehousing men in lonely institutions, with little opportunity for substance abuse counseling, education or vocational training, Utter said it was a false sense of security. "We have to realize that we are dealing not only with ideals, but with human beings." The judge is an admirer of former governor Booth Gardner, who shares his commitment to helping disadvantaged youth. "Booth put it so well when he always reminded the taxpayers that when it came to investing in programs to help kids, 'You can pay me now or you can pay me later, and later is going to be a lot more expensive in more ways than one.' "

"Our current penal system is an offense-oriented system, not an offender-oriented system, and the maximum sentence is based on the offense committed rather than on the capacity of the offender for change," Judge Utter said in a 1970 speech. He urged the Legislature to establish a "dangerous offender category" in the criminal code to deal with the 15 percent who definitely "must be separated from society for safety reasons."

Kindred souls

Justice Utter on the Washington Supreme Court, 1972. Justice Utter on the Washington Supreme Court, 1972.

In December of 1971, Justice Morell E. Sharp, who'd been on and off the State Supreme Court for a topsy-turvy total of 13 months, resigned to accept a Nixon appointment to the Federal District Court. Gov. Evans didn't need to sleep on that opportunity. His pick was Robert F. Utter, a judge after his own heart. Evans and Utter were classic progressive reformers in the Teddy Roosevelt mold. The former Eagle Scout and the liberal Baptist both opposed the death penalty, cared deeply about the environment and social services and strongly advocated youth programs.

Utter took the oath on Dec. 20, 1971. He was 41, having made the leap from Juvenile Court to the state's court of last resort in 12 years.

He has been so closely identified with his opposition to the death penalty that his diverse body of jurisprudence is often overlooked. He has defended free speech and religious liberty and ruled curfew ordinances unconstitutional. Utter was also a vigorous proponent of forcing the state to fulfill its "paramount duty" to fund basic education. The "special levy roulette" system of the 1970s improperly forced the school districts to rely heavily on local funding for basic programs, Utter maintained. "As such, it violates the constitutional requirement that the state itself make ample provision for the school system. This is not to say that special levies cannot be used, but only that it is impermissible that they be relied upon to meet the minimum needs of the schools." Narrowly rebuffed in 1974, his side regrouped to a 6-3 victory in 1978. "The Constitution meant what it said," Utter emphasizes.

Other key cases during his 23 years on the high court included carrying the day in a split decision that struck down a "tort reform" law that would have capped the recovery of general damages in personal injury cases. In 1983 and 1984, he waded into one of the state's most celebrated snafus, the collapse of the Washington Public Power Supply System's nuclear power plant projects. WPPSS - pronounced "Whoops!" by irate ratepayers - also left thousands of bondholders in the lurch. They found no relief from the high court majority. Utter begged to differ, arguing that the cases couldn't be resolved without a trial to weigh the unresolved questions of fact. "The parties should win or lose in the courtroom," he wrote. "It doesn't matter what the public pressures are." He told the State Trial Lawyers' bulletin that those two dissents "tell as much about my judicial philosophy as any case."

Utter was developing a national reputation as a scholarly judge. But it wasn't all smooth sailing.

"The Power of the Holy"

Utter finds solace at sea. Utter finds solace at sea.

Another of the epiphanies in Utter's life occurred in 1976 during the 2,500-mile Victoria-to-Maui sailboat race, his first event as a skipper on the open ocean. "I was not quite certain what I would find," he wrote later, "and suspected that Columbus's crew was correct that the world was indeed flat, with a great waterfall at the end over which all intrepid mariners would fall."

The legendary mountain climber Willi Unsoeld, a good friend and neighbor on Cooper Point in Olympia, often told the Utters that he had experienced many more spiritual moments "among the bare austerities of God's high places" than in churches, chapels and synagogues. Unsoeld, who had a doctorate in theology and philosophy, believed that our fear of "The Power of the Holy" is actually the beginning of wisdom. "Willi found evidence of that power in the unscaled mountains of this world and described it as the type of power that convinced us we were no longer in charge of our destiny," Utter recalls. Pointing to his bad knees, the judge jokes, "even the small bit of climbing I did convinced me that there had to be other ways to find the presence of God that were not quite as terrifying" as the North Face of Mount Everest. "Little did I know that my love of sailing would lead to similar experiences."

When the 41-foot Nerita sailed out the Straits of Juan de Fuca, the novice skipper took a fleeting glance at the last land he'd see for days, surveyed the largely green crew of seven he was now responsible for and realized that "there are no large boats on the ocean." Utter was at the helm "one stormy morning, just as dawn broke, steering down towering seas with the spinnaker set, catapulting down the face of one wave after another." The judge began to sing at the top of his lungs Sunday School hymns he thought he had long since forgotten. One was the rousing old gospel tune, "There is a Wideness in God's Mercy":

There's a wideness in God's mercy,
Like the wideness of the sea;
There's a kindness in His justice,
Which is more than liberty.

There is no place where earth's sorrows
Are more felt than up in heaven;
There is no place where earth's failings
Have such kindly judgment given.

For the love of God is broader
Than the measure of our mind;
And the heart of the Eternal
Is most wonderfully kind.

"There is a Wideness in God's Mercy" contains several messages, Utter realized - the admonition to be kind, the promise of reconciliation and the reminder that our sins are as painful to God as they are to us. "Later experiences in dealing with children and adults in court convinced me that the overwhelming Power of the Holy is found not only in nature but in the lives of his creation and that we can never be certain of what the effect of that power will be unless we give it an opportunity to manifest itself," Utter wrote.

"The Power of the Holy" came into even sharper focus for the judge in the 1980s when he met James M. Houston, the Oxford don who was a revered professor at Regent College, the international graduate school of Christian Studies in Vancouver, B.C. Houston's essay on "Living in a Suffering World," touched Utter's heart and soul. "The book of Job teaches that to live in a meaningful world one needs to cultivate proper attitudes rather than depend upon simple answers," Houston wrote. "Relating to God is more profound than knowing about God."

For the record, Utter and his crew didn't win that race, but they were a commendable third in their class, and the judge won a prize more coveted than any silver cup: A new sense of self-confidence and the realization that God works in mysterious ways.

In Utter's second race, the sailboat skippered by his partner, Carter Kerr, was first in its class and second overall. "It was spectacular!" Utter recalls, sipping hot chocolate in the cabin of his latest sailboat on a sparkling March day, with the snowcapped Olympics as a backdrop for Budd Inlet.

The Utters on the Tacita in the late 1960s. The kids are, from left, Kim, John and Kirk. The Utters on the Tacita in the late 1960s. The kids are, from left, Kim, John and Kirk.

Sailing has been a family affair for the Utters from the time their children were in diapers. Kim was born in 1957; Kirk in 1959 and John in 1965. Kirk, in particular, shares his father's fascination with the sea and is rated among the top 10 sailboat crew members in the Pacific Northwest. In the 7th grade, his mother also proudly notes, he had a key role in Seattle Opera's production of "Peter Pan," soaring above the stage on guy-wires. Kirk Utter graduated from the University of Puget Sound and now works in the satellite communication industry. His brother John, a Whitman College graduate, is a fine guitarist, composer and singer. He had a pop music band called Bounce the Ocean. John has done Web design for the state, including a site to boost the skills of women returning to the workforce. Kim Utter is also wonderfully musical, a pianist and singer. Lately, her recitals feature some Bach, and she enjoys the singing in the Gloria Dei choir. She loves her new electronic piano. Sometimes on the sailboat, they'd all sing old sea chanteys. Bob has studied guitar "without much success," but he loves music and is a fan of Andres Segovia, Eric Clapton and Robert Johnson, the legendary Delta Blues guitarist who claimed he sold his soul "at the crossroads" to be able to play like the Devil.

Bob and Betty Utter now dote on four grandchildren.

The defining moment

Utter takes the oath as chief justice in 1979. Utter takes the oath as chief justice in 1979.

Utter served as chief justice of the Supreme Court from 1979 to 1981, a time when Washington State's new death penalty legislation was tested in both the high court and the federal courts. Utter was also tested at the ballot box. The Kitsap County prosecutor, Dan Clem, was an energetic challenger in 1980. Clem asserted that Utter would go off "on a state constitutional law binge" whenever he disliked what the U.S. Supreme Court was up to.

Utter won re-election in a landslide, and concluded with satisfaction that while the voters might not agree with him, they respected his integrity and independence. His platform, in fact, had always been "that if I think you are right, and no one else agrees with you, you can be certain I will still vote for you."

From 1981 to his resignation in 1995, Utter and his colleagues heard 25 cases where the death penalty was imposed by a lower court. The Supreme Court upheld the death penalty in all 25, with Utter dissenting 24 times. He emphasized repeatedly that "the fatal flaw" was the lack of proportionality. In 1984, he noted in dissent that one of the defendants in Seattle's "Wah Mee Massacre" of 13 people faced the death penalty while his two accomplices did not. "The Washington capital punishment scheme is applied arbitrarily, without pattern or meaningful standards, and therefore violates the equal protection clause of the 14th Amendment to the United States Constitution," Utter wrote.

The one case in which he concurred was the last he heard as a member of the court, and the majority adopted his opinion, which set aside the death penalty on procedural grounds.

"Although the action of the federal courts in overturning our cases was encouraging, I began to question whether I could continue to function in a legal system that imposed the death penalty." In 1993, his doubts became even stronger after the state carried out its first execution in 25 years.

The defining moment in his decision to resign from the Supreme Court came in the fall of 1994 when he read Hitler's Justice: The Courts of the Third Reich, by Ingo Müller, a German lawyer and law professor. A best-seller in Germany, the book details the perversion of justice under Nazism. Winston Churchill once described Hitler as "a maniac of ferocious genius, the repository and expression of the most virulent hatreds that have ever corroded the human breast. …" All that was played out in the Nazi courts, as ancient anti-Semitic hatreds and "Aryan" mumbo-jumbo made a murderous mockery of the rule of law.

Utter read the book practically in one sitting. Then he couldn't sleep. "Müller chronicles how the entire legal system, including judges, lawyers and lawmakers, was co-opted to serve a lawless regime with the corresponding death of the rule of law and its legal institutions," Utter wrote in Unjust Laws, a widely read 1997 essay in the Cardozo Law Review. German justices, lawyers and law school professors "overwhelmingly openly acquiesced" to Hitler's seizure of power in 1933, "then enthusiastically collaborated in the worst excesses" of a regime that ignited a global war and summarily shipped millions of Jews, together with Gypsies, Jehovah's Witnesses, gays, annoying Lutherans and assorted other "enemies of the Reich," to concentration camps where the ovens glowed 24/7. Meantime, the "mentally deficient" were liquidated to protect and enhance the Reich's precious gene-pool while judges looked the other way.

"What was particularly striking," Utter wrote, was Müller's "short chapter on 'Resistance from the Bench' - short because there was little resistance. In fact, he told of only two non-Jewish judges who actively protested the actions of the Nazi government by resigning."

Worn down by dissents that went unheeded, "I could see myself, my own views, becoming less vigorous," Utter said. "I became concerned that if I stayed in the system … that this would happen to me."

The judge who had always strived to disagree without being disagreeable took pains to emphasize he wasn't suggesting that America as a nation or his colleagues on the court were on the slippery slope to fascism. However, he said he believed too many people in places high and low were turning a deaf ear to the injustice of Death Row amid the cry to "get tough on crime."

His resignation was effective April 24, 1995. After nearly 24 years in the trenches, no one could call him a quitter or suggest that he wasn't putting his money where his heart was. He was walking away from a $100,000-a-year salary as a matter of conscience. Utter kept recalling the words of Don Anthony White, who told his attorneys that "dying was not enough." He was prepared to go the long extra mile to help society come to grips with what happens when children are made to feel like garbage.


If conscience is in fact a sacred sanctuary where God alone may enter as judge, then I believe my internal court reached the proper decision.



"The death penalty squanders the legal and moral resources of our nation in the futile effort to accommodate fundamental tensions that make any civilized administration of the death penalty impossible," Utter wrote in the Cardozo Law Review essay about his decision.

"… Society cannot accept the possibility of executing wrongfully convicted people. … By remaining a part of that system I was implying that it could be made workable. … The injustice that I perceived … became a growing burden.

"I recognize there are those who conclude otherwise. While I respect their views, the struggle is a personal one for all involved, and my conclusion is uniquely my own. If conscience is in fact a sacred sanctuary where God alone may enter as judge, then I believe my internal court reached the proper decision."

The resignation received front-page coverage around the Northwest. Even death penalty supporters said they respected Utter's integrity. Two of his allies against capital punishment, Justices Charles Z. Smith and James Dolliver, said he would be sorely missed. "Someday," Dolliver wrote, "we will eliminate the death penalty and be saved from cries of vengeance, revenge or justice and thus become a more truly civilized community of citizens."

"He has been a voice for reason and justice and the court will simply not be the same without him," said Chief Justice Barbara Durham, who disagreed with Utter on capital punishment. Seattle Post-Intelligencer columnist Charles Dunsire regretted "the loss to state service of an exceptionally fine judicial mind and an individual whose legal opinions and actions reflect admirable humanitarian qualities." King County Prosecutor Norm Maleng noted that "the death penalty has been upheld by the U.S. Supreme Court and it is the law of the land, but I can respect the decision he has made."

In 1996, Utter was a panelist on a New York City Bar Association symposium entitled "What Role Should Morality Play in Judging?" Other panelists, including fellow judges and law professors, noted that his decision to resign over the death penalty italicized the issue of conscience "in a dramatic and forceful way … and may very well have changed the terms of debate" on capital punishment in America. A lively discussion ensued: What constitutes a violation of a judge's constitutional oath? What are the bounds of civil disobedience? If you don't "play by the rules," doesn't that jeopardize the integrity of jurisprudence? After all, "if judges choose to not go along with precedent in one case, it is hard to see why they cannot do so in all the rest," a panelist suggested.

Utter responded that a judge is bound by oath of office to faithfully and impartially try the case at hand. "I have never considered opposing this principle. I may have occasionally interpreted statutes in ways the federal courts later disagreed with where the meaning was unclear, but I have never considered it judicial lying. I think the key to the system is the judge's adherence to that oath. In my case, that was to follow the Constitution of the United States and the Constitution and laws of the State of Washington."

The popular humorist, Finley Peter Dunne, famously declared in 1896 that "even the Supreme Court follows the election returns." Utter turned that notion on its head. He told the panel that 80 percent of the people in his state favored the death penalty, yet he was undefeated in five statewide elections.

Trust eroded?

Despite his record of success at the ballot box, Utter is flatly opposed to judges being forced to become politicians to keep their seats. He has long maintained that requiring judges to stand for election is an "assault on the integrity of the entire judicial system." Ethics, the pitfalls of making campaign promises and raising a war chest add up to a trifecta of reasons why a merit selection process should be adopted, he believes.

Utter advocates the establishment of a nonpartisan commission, including non-lawyers. It would carefully evaluate candidates and submit its top three to the governor for appointment. He is appalled at the hundreds of thousands of dollars now being raised and spent to elect Supreme Court justices in Washington State and the bare-knuckle nature of recent campaigns. When judges have to go out, hat in hand, and raise money for TV sound bites from lawyers who end up appearing before them in court - not to mention the major lobbying groups who bankroll campaigns - he believes the system is compromised and public trust eroded.

Utter was outspoken on the issue in the 1990s during his term as chairman of the American Judicature Society, which has long advocated for the merit selection and retention of judges and the effective administration of justice.

Speaking of which, Utter recalls that when the voters approved the new Court of Appeals in 1968, the ballot issue also contained a proviso that the State Supreme Court could be reduced by two to a total of seven members. "But the voters promptly forgot about that." He still believes a smaller Supreme Court would be more efficient. "I wrote no dissents when I was on the Court of Appeals. With three members you could focus on the issues and communicate better," he noted in 1999 on the occasion of the appellate court's 30th anniversary. "I wrote a few when I was on the Supreme Court," Utter added with a smile.

The teacher

Justice Utter on the Washington Supreme Court, 1992. Justice Utter on the Washington Supreme Court, 1992.

In the 1990s, Justice Utter taught a popular course on state constitutional law at the University of Puget Sound School of Law. In 2002, he teamed up with his friend Hugh D. Spitzer, a lawyer and University of Washington Law School professor, to complete a book he had been working on for several years. The result was The Washington State Constitution (Greenwood Press, ISBN 0-313-27464-9), a definitive reference guide.

"One amazing thing about Bob," Spitzer says, "is that while he was on the State Supreme Court, working with his colleagues, writing opinions and dealing with administrative matters, he managed to put in the time and the intellectual rigor to write cutting-edge law review articles on state constitutional law topics - lots of them, and all very thoughtful and analytically deep. These pieces gained instant recognition nationally, and for good reason."

Spitzer says Utter was also "a great tactician." Each case is assigned randomly to a Washington Supreme Court justice, who then drafts an opinion. "When Utter was assigned a case … he was a master at piecing together a majority. When necessary, he would shift the issue in the case to avoid losing the right to compose that majority opinion and to avoid seeing the law develop in a direction that he saw as being harmful on a long-term basis. When he 'lost' a case and was in the dissent, he was a master at reconfiguring and reinterpreting the majority opinion when he had the opportunity … in a later opinion involving a related legal issue.

"It's also important to note that Bob Utter is one of those people who treats every other human being with precisely the same high level of respect," Spitzer adds. "His professional success and recognition never went to his head. He's obviously comfortable enough with who he is that he doesn't have to bulk up his ego at the expense of others. My late aunt was a social worker in the Juvenile Court 45 years ago when Utter was a young Superior Court judge. She always told me what an incredibly nice person he was to staff members and how much respect he showed to kids who appeared before him. I discovered the same thing when I was a young lawyer/law teacher and beginning research on the State Constitution."

Washington Supreme Court Justice Richard B. Sanders says Utter's "most important intellectual achievement is that effort to popularize the State Constitution and give it real meaning and application."

"When I went to law school at the UW in the 1960s," Sanders says, "there wasn't even a class on state constitutional law. Then, in the 1980s, Justice Utter authored an article for the UPS Law Review that served as a template on how to construe our State Constitution. This is important work, because in terms of civil liberties the Federal Constitution sets a floor for individual liberties, but not a ceiling. This gives the states leeway to provide stronger protections."

Justice Charles W. Johnson agrees: "Utter's development of an independent interpretation of the State Constitution was probably as strong an influence on this court as could have been achieved by any individual. It was not a philosophy embraced by everyone because it's not a comfortable philosophy. But the way Bob explained it in his writing was persuasive. As lawyers and judges, we're most comfortable with the federal Constitution. That's what we're taught in law school. We're not exposed to the State Constitution if we're practicing law or judging at the lower court level.


Utter's development of an independent interpretation of the State Constitution was probably as strong an influence on this court as could have been achieved by any individual.



"Primarily," Johnson adds, "the issues revolve around the privacy provisions - search-and-seizure jurisprudence under Article 1, Section 7, as compared to the 4th Amendment. The language is entirely different, which is absolutely unique and that left us with the challenge of determining 'Do these words have independent meaning?' Some said 'no' and some said 'yes,' and that was the debate. What Bob Utter did before I came on the court was develop a language, or at least a foundation of the principles that explained not only what these words meant to the drafters but how they should be applied. And it made sense. … The door was not closed to the state constitutional interpretation because Bob Utter had kept it open."

William L. Downing, a King County Superior Court judge who spent 11 years as a prosecutor, was "aghast" at his earliest encounters with Justice Utter. "In the early 1980's, I was a naïve young deputy prosecuting attorney and I wanted to know just who was this State Supreme Court justice who thought he could overrule the United States Supreme Court? The Supreme Court of Warren Burger was eagerly loosening the restrictions that had been placed on police and prosecutors during the era of Chief Justice Earl Warren, but some of the states were refusing to go along. Justice Utter seemed to be gaily leading this revolutionary charge.

"Initially outraged, I took a closer look. What I found soon turned my head around. First, I discovered there was nothing revolutionary afoot," Downing says. "The rules being articulated by Bob Utter were entirely sensible ones for police, prosecutors and trial judges to follow. In fact, if anything was radical, it was the sudden federal cutbacks. I also found there was an undeniably principled basis for what was being done. Justice Utter made sure that adherence to the State Constitution as a protective layer for individual liberties was an intellectually honest approach, with history and logic behind it. These discoveries turned me from a critic into a staunch supporter of Justice Utter and our Washington Supreme Court."

Downing was to see another side of Utter in the early 1990s when as a parent and a judge he became active in Youth & Government. "As a proud graduate of this YMCA program, Utter's first-hand awareness of its value made him a passionate driving force in spreading its reach. The young people of Washington today continue to be enriched by his decades of contributions.

"Over the years, I have seen Bob Utter in many settings and he has graced them all. His presence made the courtroom a more dignified and intellectually stimulating place," Downing says. "I have observed him interacting with young people, including my own son. His manner and his obvious interest have helped so many of them move closer to realizing their potential. And, from a distance, I have looked on as he has gone global with his always principled and always persuasive message."

A traveling man

"Going global" is putting it mildly. Utter was an active volunteer with international judicial outreach programs during his later years on the high court, and when he left the bench he seemed to be everywhere. The fall of 1991 found him lecturing at a judges' academy in Moscow shortly after the failed coup against Boris Yeltsin's progressive reforms. The Communist monolith that was the Soviet Union collapsed just a few months later. "It was one of the most interesting times of my life," Utter says. "All was in flux about what form the post-Soviet world would take."

In 1992, the Dali Lama's legal adviser called Utter to get some advice on how to draft the criminal law code for the Tibetan Government in Exile. Utter emphasized dispute resolution and rehabilitation.

The Utters and other members of the delegation outside a yurt in Kazakhstan in 1992. Made of felt, yurts are the traditional nomadic dwelling of Kazakhstan. The Utters and other members of the delegation outside a yurt in Kazakhstan in 1992. Made of felt, yurts are the traditional nomadic dwelling of Kazakhstan.

The Utters have made as many as five trips abroad in one year to promote the rule of law and human rights in new and emerging democracies. As a volunteer with the American Bar Association's Central European & Eurasian Law Initiative - "CEELI" for short - Utter has shared his decades of judicial experience and knowledge of constitutional law with judges from some 20 countries, including the former Soviet states of Kazakhstan, Kyrgyzstan, Uzbekistan and assorted other "stans," which he can pronounce like a native. He tells moving stories of brave men and women putting their careers - sometimes their very lives - on the line in defense of an independent judiciary. One formerly embattled judge told Utter that he had no choice but to stand up to the KGB because "in a nation of slaves, the revolt of one slave is significant."

Betty Utter invariably ends up teaching English on these trips. There's not much time for sightseeing. The Utters aren't disappointed. They say they've learned more from people-to-people interaction in huts and village halls than on any tour bus. Their prized souvenirs include humble but beautiful rugs, folk arts and crafts.

Betty and Bob Utter in the hills of Kazakhstan. Betty and Bob Utter in the hills of Kazakhstan.


Bob has taught in Latvia, Serbia, Armenia, Moldova, Bulgaria, the Czech Republic and both Outer and Inner Mongolia, where he led a People to People group in 1989, a time when there had been few outside visitors. "We had an opportunity to see how their ancient process of neighborhood councils for dispute resolution worked."

In Albania in the 1990s, he joined several other American judges and lawyers in a series of seminars and lectures. The experience reminded them that even with its myriad challenges justice American-style is a cakewalk. Albanian judges often were without telephones. Pens, pencils and paper were in short supply. "The judges there were peacekeepers - wise people in the neighborhood" who persevered despite having "no ability to enforce decrees or access laws," Utter recalls. Still, the American volunteers felt as if they were making real headway. Then the nation's chief justice was ousted. The judges' association disintegrated. The American Bar Association volunteers stayed in touch with their frightened Albanian colleagues as best they could. In a report for the American Judicature Society in 2001, Scott Carlson, CEELI's director, said their work paid major dividends for democracy. Power had changed hands in 1998 and a new Albanian constitution was ratified. Capitalizing on his prestige and experience, Utter was quickly back on the scene "to give moral and intellectual support to the new chief justice, with whom he had worked during the judiciary's darkest days."

"We run him ragged," Carlson said of Utter's frequent trips. "Every hour is booked, with lectures, meetings and lunches."

Utter has made six trips to China and several to Prague, where the Law Initiative has an institute. He taught civil rights law to Kosovo attorneys, served as dean of the faculty for the program for Iraqi judges and headed the delegation to the Czech Republic with the People to People Comparative Law Study group. He headed another American Bar Association trip to Cuba. At the same time, he has volunteered with the U.S. State Department and U.S. Agency for International Development.

For his work with judges in emerging democracies, Utter received the CEELI Volunteers Award from the American Bar Association in 2003. Of all the awards he has received over the years, this one touches him the most. "But my work is a small pebble compared with what others do," Utter says with characteristic modesty. "It's been a great privilege. The greatest has been to see the dedication of people around the world under incredible circumstances working to develop the rule of law in their own countries." He points to a poll taken in Haiti in 2001 to gauge people's priorities. "In a country with massive unemployment, brutality, corruption, poverty and a pervading sense of hopelessness," Utter wrote, "the primary wish was for the availability of justice for all and for a non-corrupt court system. … The fulfillment of this universal longing for justice and access to a fair judicial system does not occur without an investment of time, energy, commitment and courage."

Justice Utter, front row, center, poses with faculty members and some of the Iraqi judges who attended an educational seminar in Prague in 2004. Justice Utter, front row, center, poses with faculty members and some of the Iraqi judges who attended an educational seminar in Prague in 2004.

Utter says the 140 Iraqi judges who attended CEELI's "Judging in a New Democratic Society" seminars in Prague in 2004 and 2005 were among the brightest and bravest he has ever met - judicial profiles in courage. One was assassinated on the way to the conference; another told of seeing two of his bodyguards killed while protecting him from an attack. One of the most committed institute participants was the Secretary of the Iraq Council of Judges. He was assassinated when leaving home for work in 2005. One judge told of spending 17 years in Iranian prisons following his capture during the war between Iran and Iraq. He had been conscripted into the army. Finally freed and reinstated to the bench, he found his home destroyed by a stray artillery shell and members of his family dead.

One judge asked Utter if he planned to give them grades. "Why would I do that?" Utter said. The Iraqi judge smiled and in a classic bit of black humor quipped that he'd been thinking of getting an "F" so he could stay in Prague. "And who could blame him?" Utter says. "They would all be returning to conditions little known to most other jurists of this world." As dean of the faculty and a senior instructor at the CEELI Institute, Utter was inspired daily by his students. One day, after a presentation on American, European and other judicial ethics codes, the instructors "challenged the Iraqi judges to draft their own code. Asked what element they would add that was not in the other codes, they replied, 'Courage,' noting that without courage all other ethical principles were of no value." We Americans too often think we wrote the book on democracy, Utter notes.

Utter with two Iraqi judges. Judge Qais Hashem al-Shamari, right, was the Secretary of the Iraq Council of Judges. He was assasinated in 2005. Utter with two Iraqi judges. Judge Qais Hashem al-Shamari, right, was the Secretary of the Iraq Council of Judges. He was assasinated in 2005.

In the fall of 2008, Utter was part of a team that spent five weeks talking with members of the United Nations' International Criminal Tribunal for Rwanda, where in the space of three horrific months in 1994 three-quarters of a million people were murdered - men, women and children hacked to death by machete-wielding soldiers; fetuses ripped from wombs; unspeakable torture. One is tempted to suggest that some Nazi death camps were humane by comparison. The Hutu extremists had set out to liquidate the minority Tutsis and any moderate Hutus who dared protest. The members of the war-crimes tribunal heard soul-searing testimony as they worked to bring ringleaders to justice. Their work produced some landmark precedents in the annals of international justice, notably establishing rape as genocide. During the reign of terror, women were mutilated and murdered, destroyed "physically, mentally, emotionally." Sexual violence was used to dehumanize, spread fear and disease.

The team that included Bob and Betty Utter, as well as former King County Superior Court judge Donald Horowitz and former U.S. Attorney John McKay, now a law professor at Seattle University, traveled to Tanzania and Rwanda to interview members of the tribunal and survivors of the genocide. The oral histories and video interviews became a compelling presentation called "Voices from the Rwanda Tribunal: Genocide and Justice." The goal is to prevent another Rwanda by opening eyes and minds. If the Nuremberg Trials of Nazi leaders had been followed by such a project, Utter believes Cambodia's "killing fields," South Africa's poisonous apartheid regime and the Rwandan atrocities might have been avoidable. At the very least, the world would have been farther down the road to international justice.

The mediator

In 1997, after a mentally ill man fatally stabbed a retired Kent firefighter outside the Kingdome in a random act of madness, King County Executive Ron Sims named Utter to head a special task force to investigate how the mental health system deals with misdemeanor offenders. The attacker earlier had been sent to Western State Hospital for psychiatric examination after stealing a bicycle. It wasn't the first time he'd been in trouble, and he assaulted two state employees during his confinement. Nevertheless, he was sent back to the County Jail and eventually released with no further treatment. "I can't think of anyone better than Justice Utter" to head the task force, said Sims. "He brings his integrity, his sense of justice and his sense of humanity to this important task" and "is ideally suited to finding out how we fix the system." The result, in 1999, was the formation of a now nationally recognized therapeutic court that strives to promote cooperation between mental health treatment providers and the criminal justice system, two systems that usually have not been close allies. The Mental Health Court, one of the first in America, celebrated its 10th anniversary in February of 2009. "The work of this court for the past decade is a testament to how collaborations like this can reduce incarceration costs while also improving lives and protecting public safety," said Judge Barbara Linde, presiding judge of the King County District Court.

In 1998, Utter became the fledgling Washington News Council's first chairman and stayed with it for six years. The independent, nonprofit group strives to promote accurate and balanced news media coverage. Utter "did a superb job, as you might expect, presiding over our hearings with absolute even-handedness," says the council's executive director, John Hamer.

"Hamer's invitation to Bob to preside over the first hearings of the News Council was a stroke of genius," says Cliff Rowe, a communications professor at Pacific Lutheran University who served on the council for several years. "I had long admired Justice Utter as an articulate voice for press freedom, and his willingness to accept the chairmanship immediately put a recognizable face of fairness and dignity on the hearings. He was always calm, patient and unruffled, which gave the council even more credibility."

"Don't label me"

Having left the bench, Utter has been free to pursue political activism. Like most Washingtonians, he bristles at the notion of defacto party "registration." Described even recently as a "lifelong Republican," he is in truth a freelancer. He admires Dan Evans, the "mainstream" Republican who appointed him to the high court, as well as Booth Gardner and Gov. Chris Gregoire, both Democrats. Secretary of State Sam Reed and Attorney General Rob McKenna, both Republicans, are "bright and principled" in his view. He admires former GOP Secretary of State Ralph Munro, who shares his concern for the handicapped and underprivileged. Utter also praises John Spellman, the one-term Republican governor "who made a lot of tough calls during another time of fiscal hardship." His judicial heroes include the legendary Supreme Court Justice William O. Douglas, another freethinker, who loved the outdoors and grew up in Yakima.

Utter voted for Bill Clinton twice. He jumped ship in 1998 out of disgust over the president's sexual escapades with an intern. He urged Clinton to resign. The letter was vintage Utter, combining his knowledge of history with the perspective of someone who fervently believes in rehabilitation and redemption: "I can sense the anguish you have, personally, for your fine family, for your staff and supporters, and for the people of this country whom you misled for the past seven months," Utter told the president. "As a student of history, I am certain you are familiar with the Profumo affair that rocked Great Britain decades ago." Secretary of State for War John Profumo's "offense was similar to yours in the sense that he misled the people of his country and the Parliament he served about a sexual indiscretion. His chosen path of redemption was resignation followed by a life of service to those most in need. While his conduct was damaging to his party and nation, his place in history is secure as a man who recognized his misconduct, dealt with it with honor and found admiration of his fellow countrymen by his subsequent conduct. …

"On the evidence so far, I do not believe you have committed an impeachable offense," Utter added. "Nonetheless, that is not the real issue. The real issue is what damage will be done to this country by making your inexplicable conduct the focus of national and international attention at a time when our focus must be directed to more serious affairs, both domestic and foreign. … Even if you avoid impeachment, you will cripple the Democratic Party …"

No reply was received. "I thought about writing another one saying, 'And I mean it!'" Utter says with a laugh.

In 2004, the Utters contributed $1,000 to retired general Wesley Clark, the Rhodes Scholar who sought the Democratic presidential nomination. In 2008, they donated $1,100 to the Obama campaign. Utter was eager for a change of philosophy in the White House. He views George W. Bush "as the best example of the Peter Principle." Bush "will go down in history as a man of perhaps good intentions but one who almost destroyed the fabric of our country," Utter says. "The Iraq war was a tragic blunder; the fiscal policies were foolhardy; the judicial appointments - while superb in our state - often were not the best possible people, and he displayed no fundamental belief in the rule of law. Rather than focusing on what was best for the country he focused on what was best for partisan politics, to our great loss."

In the summer of 2008, Washington's gubernatorial race was shaping up to be a re-run of the 2004 photo-finish that saw Gregoire defeat Dino Rossi by 133 votes. Utter and Faith Ireland, another former Supreme Court justice, announced they were heading a coalition threatening to file suit against the Building Industry Association of Washington and its King and Snohomish County affiliates. The allegation was that the builders were illegally raising and spending money to boost the Rossi campaign, ducking public disclosure laws. Utter also worried that the builders would use the war chest to back a candidate in a race for the Supreme Court, as they had in 2006 when Chief Justice Gerry Alexander was targeted as being a left-of-center "activist" judge. It was a nasty campaign.

"I believe the actions of the BIAW violate the letter and spirit of the public disclosure law in this campaign season and in past seasons as well," Utter told reporters. "The law provides for a process to test these concerns. I look forward to a successful determination of the issues."

He and Ireland wrote an op-ed piece for the Seattle Post-Intelligencer, asserting that "Special interests are increasingly supporting candidates through 'independent expenditures' that are not subject to contribution limits. These 'independent' campaigns also tend to contain the most vicious and dubious negative attacks, since the benefitting candidates can say they have no control over the messages." Their lawsuit was officially filed in October, and Attorney General McKenna also brought legal actions against two builders' groups for late reporting of political contributions.


Voters need to be able to judge whether a candidate might be beholden to one special interest or another...



"Buildergate" was a red herring, Rossi emphasized, just "more flailing from a desperate campaign and its allies." The Republican from King County flatly denied the charges and said that forcing him into court to testify under oath about allegations that he illegally coordinated his campaign fundraising with the builders was a ploy to smear him and deny him important time on the campaign trail as the race was heading down the stretch. The Rossi campaign noted that Utter and Ireland had made monetary donations to Gregoire's campaign. The ex-judges said they had done so in compliance with the law and with full transparency.

This time, Gregoire comfortably won re-election in the Obama landslide, and at this writing in the spring of 2009 the lawsuits are unresolved. Utter says the issue won't go away. "Voters need to be able to judge whether a candidate might be beholden to one special interest or another," he says. "It's a bipartisan issue. The public disclosure laws are there for a purpose and to be followed, not subject to game playing and hide the ball."

Conflicts of interest

In March of 2009, Utter teamed up with his friend Charlie Wiggins, a former Court of Appeals judge, for another op-ed, this one in The Seattle Times. It emphasized that judges should not hear cases involving contributors to their campaigns. This might sound like a self-evident truth, but it happened in West Virginia - big time. The U.S. Supreme Court was weighing a case in which a judge who was funneled $3 million in campaign contributions from the CEO of a coal company refused to withdraw from hearing a case involving a lawsuit against the coal company. The judge then provided a crucial vote in a 3-2 ruling to overturn a $50 million jury verdict against the company.

"Eight hundred years ago," Utter and Wiggins wrote, "King John promised the English barons in the Magna Carta, 'To none will we sell; to none will we deny; to none will we delay right or justice.' This promise of absolute impartiality has become the bedrock of the American system of justice. Studies have shown that three out of four Americans believe that election contributions affect judges' decisions. … The Goddess of Justice is always portrayed as blind, emphasizing her complete impartiality.


The Goddess of Justice is always portrayed as blind, emphasizing her complete impartiality.



"Could this problem occur in Washington State? Unfortunately, yes," Utter and Wiggins said. "Spending for Washington Supreme Court elections has skyrocketed in recent years. … A proposed Washington state court rule now under consideration would require a judge to step down from a case if a party provided the judge with substantial campaign support. … Justice must appear to be fair as well as actually being fair."

Stay of execution

On March 12, 2009, the day before the state was poised to carry out its first execution in eight years, The Seattle Times featured a column by Utter, who argued that "Retaining the death penalty fails to serve either justice, public safety or the public purse."

"Since my resignation from the Washington State Supreme Court in 1995 to protest the death penalty, many things have changed," Utter wrote. "Public support for the death penalty has fallen dramatically over the past 14 years. Since 1995, death sentences in America have declined more than 60 percent, reversing a generation-long trend toward greater acceptance of capital punishment.

"Most Americans continue to support the death penalty for the truly guilty. However, the discovery of innocence in more than 130 cases where people have been sentenced to death, exonerated and released is one more reason to question the need for retention of the death penalty. DNA testing is a partial answer, but even that is available in less than 10 percent of all homicides and is no guarantee we will not execute innocent people.

"As for punishment and protection, life in prison without the possibility of parole is available in 48 states, including Washington, and prevents criminals from reoffending. It means what it says — 23 of 24 hours a day locked in a tiny cell is not coddling. Traditional objections — such as cost, delay and questionable deterrence, given uncertainty and randomness of application — still exist. As does rejection of the death penalty by most civilized societies, including more than 50 members of the Council of Europe. …

"In addition, many states are now examining the question of cost and have pointed out that capital cases cost three times as much as homicide cases in which the death penalty is not sought. They have done this reasoning that there are better and cheaper ways to reduce crime."

Later that day, the Washington Supreme Court voted 5-4 to issue a stay of execution pending proceedings in Thurston County Superior Court on a challenge to the constitutionality of lethal injection.

"On any stage"

Justice Utter talks with the Rev. Brad Gill at Christian Cable
Ministeries Justice Utter talks with the Rev. Brad Gill at Christian Cable Ministeries in Aberdeen in 1991 about his trips to the Soviet Union. Kathy Quigg for The Daily World, Aberdeen.

How to sum up Robert F. Utter's legacy? "Utter always seemed to be the judge's judge," Justice Sanders says. "Ultimately, he resigned because of his abhorrence of the death penalty. That's the kind of justice we need - someone who really cares about this stuff. Now, in retirement, he's been all over the world promoting a vigorous independent judiciary. It's a privilege to sit in the same chair where he once sat."

Judge Downing says, "On any stage - in the courtroom, the classroom or a foreign capital - Bob Utter's generosity of spirit and his ability to inspire have blessed all those with the good fortune to be near him. When he left the bench, he took his penchant for education on the road. His wise head and his warm heart - both committed to the concept of liberty under the rule of law - became traveling ambassadors for an independent judiciary. The world became his classroom. He is a truly remarkable man."

Justice Charles W. Johnson, who shares Utter's "passion for being on the water," believes his fellow sailor "has left in his wake" a remarkable legacy. In their four years together on the high court, "He became a mentor to me and a friend. But he was also teaching at the law school and reaching out in so many ways to so many people, not just in this state but across the country and around the world. During your life you run across many people," Johnson says. "Some of them make a mark in a way that looking back you can say, 'By having known this person I am a better person.' And that's the way I feel about Bob Utter. He has the ability to listen and care. At the end of my journey, I would like to have accomplished half of what he has accomplished."

* * *

A footnote: Donald Delano Wright, the Seattle Times reporter who spotlighted the inequities in the death penalty, went on to serve on the Seattle City Council. He died in 2007 at 72. A man of "innate goodness," he never stopped advocating against the death penalty and donated profits from To Die is Not Enough to good causes, including trust funds for the families of murder victims. The book was published by Houghton Mifflin Co. Boston, 1974; ISBN 0-395-18478-9.