Monthly Archives: December 2013

State v. Ollivier: What Happens When the Defense Attorney Wants a Continuance and the Defendant Doesn’t?

Sometimes, the decision of whether to continue a case becomes a touchy subject between defense attorneys and their clients. It makes sense. Many clients want their cases to “just be over with” and/or proceed quickly to trial. Perhaps the client is incarcerated and cannot make bail, the case has “gone on long enough,” the client believes adverse witnesses won’t testify and/or client believes their own testimony will be much better than it actually is. Unfortunately, it’s rarely wise to storm into jury trials unless all the parties – defense attorney included – believe the case is ready. In State v. Ollivier, the WA Supremes weighed in on the issue:

http://www.courts.wa.gov/opinions/pdf/866333.pdf

In Ollivier, the WA Supremes held that a defendant’s speedy trial rights were NOT violated when a defendant’s attorney requested the continuance over the objection of his client. The facts were such that the defendant, Ollivier, was charged with Possession of Depictions of Minors Engaged in Sexual Activity. The depictions involved the use of the defendant’s computer. Ollivier was arraigned on April 18, 2007. His case went pending for 5 years before finally going to trial. There were, in total, 22 continuances. The reasons for the continuances varied: defense counsel sought most of the continuances to allow time for investigation, obtain expert review of computer content, obtain discovery material from the Washington State Department of Corrections and the King County Sheriff’s Office, and because of a new investigator on the case. Some of the requested continuances mentioned circumstances involving the State and some motions were joined by the State. At one point, an arresting officer resigned. Consequently, a continunace was requested to allow time to investigate her misconducts.

The Court reasoned that, in order to establish that multiple continuances of Ollivier’s trial dates violated his constitutional right to trial, a defendant must establish actual prejudice to the ability to prepare a defense. Further, prejudice will only be presumed in extremely unusual cases in which the post-indictment delay lasted at least five years or the government was responsible for the delay by virtue of something beyond simple negligence.

Finally, the Court stated the following: “Nearly all of the continuances were sought so that defense counsel could be prepared to defend. This is an expremely important aspect of the balancing and leads us to conclude that the length of delay was reasonably necessary for defense preparation and weighs against the defendant.”

My opinion? I agree with the WA Supremes. I’ve conducted MANY jury trials in my career, and shall probably conduct many more. Although few, my trial losses typically happen when clients insist on going to trial too early, and usually against my advice.

It’s important for clients and attorneys to have frank discussions of how long it will take to resolve the case. This decision usually depends on whether the client wants to resolve the case or go to trial. And THAT decision usually rests on the evidence contained within witnesses, police reports, forensics, etc. These decisions are not easy. It takes an exorbitant amount of time, preparation and patience for all parties to fashion and execute a successful trial defense. But as the old saying goes, “Cooler heads will prevail.”

Alexander Ransom Joins ASLA’s “Top 40 Lawyers Under 40” Among Washington State’s Criminal Defense Attorneys

The American Society of Legal Advocates is pleased to announce that Alexander F. Ransom has been selected among the “Top 40 Under 40 Criminal Defense Attorneys” in Washington State for 2014, and has accepted membership in the organization.

http://www.societyoflegaladvocates.org/dir/ransom-alexander-f/

The American Society of Legal Advocates (“ASLA”) is an invitation-only, nationwide organization of elite lawyers, drawing its membership from practicing attorneys who combine stellar legal credentials with a proven commitment to community engagement and the highest professional standards. ASLA selects less than 2% of all licensed lawyers nationwide, featuring no more than 100 lawyers per state – and 40 lawyers under the age of 40 – in each area of practice or specialty, with specialties varying per state depending on the number of practicing lawyers. Please visit http://www.societyoflegaladvocates.org/ to learn more about ASLA.

Alexander Ransom is a highly experienced trial attorney who focuses his practice on criminal defense. He consistently seeks trial acquittals, reductions and/or dismissals of high-level felonies and gross misdemeanors committed within the State of Washington. On occassion, Alexander has brought civil actions against municipalities for police misconduct; and once received a 6-figure settlement against Island County.

In addition to joining ASLA, Alexander is continuously ranked as a “10” by Avvo.com, a “Rising Star” Attorney by Seattle Metropolitan Magazine, and a  “Super Lawyer” by the Washington Law and Politics Magazine.

State v. Green: When Inventory Searches Become Overbroad

The WA Court of Appeals decided that evidence of Identity Theft (receipts) was not admissible when the officer obtained the evidence after searching the defendant’s car during a DUI and Hit & Run investigation.

http://www.courts.wa.gov/opinions/pdf/684442.pdf

Mr. Green was arrested for DUI after his vehicle struck a pedestrian who later died. After arrest, police searched Mr. Green’s car. They found a paper bag containing numerous receipts. After more investigating,  it was later determined the receipts were evidence of purchases using stolen credit cards. The car was later towed to a police impound lot. The officer began investigating the defendant for theft/fraud charges in addition to the Vehicular Homicide charge. However, the officer’s search warrant was only specific to the Vehicular Homicide charge.

A few days later, the officer obtained a second search warrant to search the car for evidence of fraud and identity theft. Mr. Green moved to suppress the receipts. The state argued the receipts were properly seized pursuant to an inventory search and were admissible pursuant to the independent source doctrine.

Some background is necessary. Under the 4th Amendment to the U.S Constitution and article I section 7 of the Washington Constitution, warrantless searches and seizures are unconstitutional. However one exception to the warrant requirement are Inventory Searches accompanying a lawful vehicle impound. The purpose of an inventory search is to (1) protect the vehicle owner’s property; (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger. The direction and scope of an inventory search must be limited to the purpose of justifying the exception. nder the Independent Source Exception, evidence obtained by unlawful governmental action is not suppressed under the exclusionary rule if the evidence was obtained pursuant to a valid search warrant or other lawful means independent of the unlawful action.

In this case, the officer did not find the receipts as part of an inventory search. Stated different, the officer looked in the paper bag but did not consider the receipts to be relevant to the inventory search. Therefore, there was no evidence that he inventoried them. The officer seized the receipts for investigatory purposes on a different matter altogether, namely, the soon-to-be-pending Identity Theft charges.

The Court further reasoned the receipts were not admissible under the Independent Source doctrine because the officer neither found the receipts nor had knowledge of them through an independent source.

My opinion? This was a reasonable, practical approach. In this case, it makes no sense to allow the police to conduct investigations of different crimes other than the one they are already working on, especially if they lack independent evidence to begin with.