Monthly Archives: March 2015

WA Legislature Considers Banning “Palcohol”

Palcohol

According to the Bellingham Herald, Washington is one of a growing number of states to try banning a new powdered alcohol product before it reaches liquor-store shelves.

Palcohol is a new powdered version of alcohol. Palcohol will be made in two different formulations, a Beverage Formulation and an Industrial Formulation. Like other powdered beverages, it must be first dissolved in water prior to consumption. One package weighs about an ounce. Powdered alcohol, it claims, could lighten the loads of hikers and airlines, as well as other consumers and sellers for whom the bulk and weight of booze are burdensome, such as refreshment-sellers who operate on islands.

Several Washington legislators, however, say Palcohol is a dangerously sneaky mechanism for getting drunk and have proposed legislation to ban it before it arrives. The House Committee on Commerce and Gaming unanimously endorsed amendments to turn SB 5292, a regulatory measure that passed the Senate unopposed, into a ban on powdered alcohol for all purposes except research.

“This is not a crafted bourbon, or a scotch, or a tequila or something that’s special,” said Rep. Jeff Holy, R-Cheney, at a public hearing this week. “Powdered alcohol is simply for the purpose of intoxication, period. You’re not crafting the finer liquors.”

If the bill becomes law, Washington would join at least six other states that have prohibited powdered alcohol, including the announcement this week by Maryland officials that alcohol distributors there have agreed to a voluntary ban on the substance. More than two dozen other states have introduced bills this year to ban powdered alcohol, which was first patented in 1972 by General Foods but has not seen widespread retail sales in the U.S.

My opinion? It seems inappropriate to speculate that snorting alcohol is going to become a raging epidemic. There’s no evidence. It also seems hypocritical to ban powdered alcohol without banning alcohol itself. Remember how Prohibition worked? Was that a great success?

State v. Rich: No Reckless Endangerment Found in DUI Case

In State v. Rich, the WA Court of Appeals ruled there is no ‘per se’ liability for Reckless Endangerment based on proof of Driving While Under the Influence (DUI).

Here the defendant was pulled over for driving a stolen vehicle. She was arrested for DUI because she exhibited the effects of having consumed alcohol and her BAC test was over .15. She also had a 9-year-old child in the front seat. The Prosecutor charged the defendant with Possession of a Stolen Vehicle, DUI and Reckless Endangerment.

During trial, the Prosecutor argued that because Rich operated a vehicle while legally intoxicated in violation of the DUI statute, her conduct also satisfies the elements of reckless endangerment. The State also points to the following pieces of “additional evidence” that would support a finding that Rich’s conduct created a substantial risk of death or serious physical injury: (1) Rich endangered a passenger and motorists on a “major public roadway,” (2) she was heavily intoxicated, and (3) she exceeded the speed limit. The jury found Rich guilty of both Reckless Endangerment and DUI.

The case went up on appeal on the issue of whether a jury can find rich guilty on both crimes when the overwhelming evidence suggested she was only guilty of DUI.

Some background is necessary. The Reckless Endangerment statute, RCW 9A.36.050, provides as follows:

A person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person.

Another provision in the criminal code, RCW 9A.08.010, defines levels of culpability, including recklessness. RCW 9A.08.010 provides, in relevant part:

RECKLESSNESS. A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.

Here, the Court reasoned that the Prosecutor offered no evidence whatsoever about the presence of other vehicles, motorists, or pedestrians, nor any evidence about the type of road or traffic conditions. Additionally, the police officer who observed Rich drive did not indicate that Rich’s manner of driving posed any danger or caused him to suspect that Rich was impaired. And even if the jury could infer from an officer’s testimony that Rich was speeding 15 miles per hour faster than the speed limit, the deputy followed Rich because he believed the car was stolen, not because of speeding or for any reason related to the manner in which the car was being operated. This evidence would not, therefore, allow a trier of fact to conclude that Rich’s speed created a substantial risk of death or serious physical injury.

Because the State failed to prove beyond a reasonable doubt that Rich recklessly engaged in conduct that created a substantial risk of death or serious injury to another person, the Reckless Endangerment conviction must be vacated.

My opinion? Good decision. there is no “per se” liability for Reckless Endangerment based on proof of violation of the DUI statute. If the penalties for DUI are thought of as too lenient then the legislature can increase them. If there should be additional offenses tied to DUI, say DUI with a passenger, then they likewise can be implemented by the legislature through the democratic process. However, courts should remain unwilling to impose such value judgments upon the citizens by shoehorning conduct into the somewhat broad definitions of certain criminal offenses.

Whatcom County Jail: An Inmate’s Perspective

inmates at Whatcom County Jail

 

The Bellingham Herald discussed Whatcom County Jail’s deplorable and dangerous conditions.

In the article Staff & Inmates Say It’s Time For A New Whatcom County Jail, Sheriff Bill Elfo is reported as saying the current Whatcom County Jail is consistently packed beyond its designed capacity, with conditions that pose safety issues for guards and inmates.

On March 18, Elfo sat down with Bellingham City Council during a special meeting to discuss the need for a new county jail and request the city’s financial support.

The jail’s current legal capacity is somewhere between 298 and 362 inmates, but the average daily population in 2014 was 403 people.

Inmates have broken out the windows in their cells onto the street below and picked away at the grout in their cinder block walls, creating small pass-throughs from cell to cell; sewer lines have backed up into the sheriff’s office; nearly every space – shower rooms, indoor recreation areas – has been used to house inmates at one time or another as the population has fluctuated well beyond capacity.

The video above captures commentary from jail staff, inmates and administration weighing in on the issue.

My opinion? Sure, certain aspects of the criminal justice system are punitive. They’re made to have inmates consider their surroundings and force them to take accountability for the crimes they’re committed.

Nevertheless, the old and overcrowded jail creates significant Human Rights issues and potentially extraordinary liability costs if a worst-case-scenario tragedy happened. According to the National Institute of Corrections recent evaluation of the jail, it was determined that if a fire or other emergency were to happen, such as an earthquake, the loss of life at the jail would be “catastrophic.’ Though the building is largely cinder block, mortar and concrete, if mattresses, clothing and/or other items were set on fire, smoke could easily fill a room or floor of the building and suffocate those inside.

It’s time for a new jail with better living conditions.

State v. Manlove: “Deliberate Cruelty” Enhancements Apply to Property Crimes.

In State v. Manlove, the Division III Court of Appeals held that a upward sentencing enhancement applies to Residential Burglary and other property crimes if a jury finds the defendant’s conduct during the commission of crime manifested deliberate cruelty to the victim.

In 2005, Paula Parker and her then-husband purchased a remote cabin on forty acres in Stevens County, Washington. The couple became acquainted with their neighbor, David Manlove, whose home lay a half mile from Parker’s cabin.

Paula Parker divorced in 2011, and she retained sole custody of the cabin. Parker and Manlove occasionally joined one another at each other’s homes for dinner. The two enjoyed a pastoral, idyllic, and platonic relationship, until . . .

Paula Parker went on vacation from June 19 to July 2, 2013 and returned to her cabin the morning of July 3. Once inside her home, Parker discovered her cabin was ransacked. Property was destroyed. The intruder left a hand-rolled cigarette. Paula realized her neighbor, David Manlove, smoked similar cigarettes.

Parker contacted police and informed them she believed the culprit was Manlove. She avoided her home for a few days.

On July 7, she returned home. Again, her house was ransacked. The damage was even more extensive this time. The intruder shredded Paula Parker’s medical records, high school diploma, and college degree. Parker kept her mother’s ashes in an urn, and the prowler dumped the ashes onto the floor.

After surveying the damage at Paula Parker’s cabin on July 8, 2013, Stevens County sheriff deputies traveled to David Manlove’s home. When asked why he damaged Paula Parker’s home, Manlove responded, “It’s my mountain.” When arrested, Manlove repeated several times: “It’s my mountain so there’s no crime.”

Law enforcement obtained two search warrants for David Manlove’s home. Officers seized many items that belonged to Paula Parker, including a hatchet, a chainsaw, a veil for a belly dancing costume, a mortar and pestle, journals, and jewelry. Officers also found marijuana plants and a rifle.

David Manlove was charged with Residential Burglary, Unlawful Possession of a Firearm in the Second Degree, Possession of more than Forty Grams of Marijuana, Possession of Stolen Property in the Third Degree, and Malicious Mischief in the First Degree. The State further alleged that Manlove committed Residential Burglary with deliberate cruelty in violation of RCW 9.94A.535(3)(a). The trial court found Manlove competent to stand trial after an evaluation by Eastern State Hospital. At the close of trial, the trial court instructed the jury that: “Deliberate cruelty” means gratuitous violence ,or other conduct which inflicts physical, psychological, or emotional pain as an end in itself, and which goes beyond what is inherent in the elements of the crime or is normally associated with the commission of the crime. Clerk’s Papers (CP) at 177. The jury found David Manlove guilty as charged.

On appeal, the issue was whether the aggravating factor of deliberate cruelty under RCW 9.94A.535(3)(a) applies to Residential Burglary.

The Court of Appeals decided, “Yes.” They gave two reasons why, under appropriate circumstances, the deliberate cruelty aggravating factor may apply to a property crimes. First, when the legislature desired to limit the application of an aggravating factor to certain offenses, it expressly provided that limitation in the statute. Second, the statute allows a sentence enhancement when the current offense is a burglary and the victim ofthe burglary was present in the building or residence when the crime was committed.

The Court affirmed Manlove’s convictions and sentence, including the enhancement for deliberate cruelty.

 

Prosecutor Jailed for Bad Conviction.

For the first time ever, a Prosecutor will go to jail for wrongfully convicting an innocent man.

In Texas, former prosecutor and judge Ken Anderson pled guilty to intentionally failing to disclose evidence in a case that sent an innocent man, Michael Morton, to prison for the murder of his wife. 

When trying the case as a prosecutor, Anderson possessed evidence that may have cleared Morton, including statements from the crime’s only eyewitness that Morton was NOT the culprit. Anderson sat on this evidence, and then watched Morton get convicted. While Morton remained in prison for the next 25 years, Anderson’s career flourished, and he eventually became a judge.

Anderson pled to criminal contempt. He will have to give up his law license, perform 500 hours of community service, and spend 10 days in jail. Anderson had already resigned in September from his position on the Texas bench.

What makes today’s plea newsworthy is not that Anderson engaged in misconduct that sent an innocent man to prison. Indeed, while most prosecutors and police officers are ethical and take their constitutional obligations seriously, government misconduct–including disclosure breaches known as Brady violations–occurs so frequently that it has become one of the chief causes of wrongful conviction.

What’s newsworthy and novel about today’s plea is that a prosecutor was actually punished in a meaningful way for his transgressions. Rogue cops and prosecutors going unpunished is the rule rather than the exception. 

My opinion? Ken Anderson’s conviction and incarceration is an anomaly in a society where police and prosecutorial misconduct goes largely unpunished. But it is a step in the right direction. Hopefully, today’s result will deter rogue cops and prosecutors in the future from engaging in similar misconduct. But this will happen only if judges across the country do what the judge did more than 25 years ago in the Morton case: issue an order requiring that proper disclosure to the defense, or risk criminal contempt proceedings.

For defense attorneys, the best way to prevent similar miscarriages of justice from happening is to explicitly write in the Demand for Discovery, “Any evidence which tends to negate the guilt of the accused as to the offense charged or which would tend to mitigate the accused’s punishment.” According to court rule and statute, the Prosecutor must disclose this evidence.

Also, entering an Omnibus Order signed by the judge tends to put attorneys on their best behavior. An omnibus hearing is a criminal pretrial hearing. Typically, disclosure of evidentiary matters, procedural, and constitutional issues are attempted to be resolved. In my Omnibus Motions/Orders I (again) request all evidence from the Prosecutor which tends to negate the defendant’s guilt.

Creating a court record like the one described above puts all parties on notice that discovery violations will NOT be tolerated. In some cases, I’ve sought sanctions against Prosecutors when I later discover they withheld evidence that they later tried to get admitted at trial.

Attorney Alexander Joins the National Association Distinguished Counsel

The National Association of Distinguished Counsel selected attorney Alexander F. Ransom for membership among the nation’s top attorneys.

The National Association of Distinguished Counsel is an organization dedicated to promoting the highest standards of legal excellence. The mission of the NADC is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate. By virtue of the incredible selectivity of their research process, only the elite few are invited to join the ranks of the NADC. Specifically, less than 1% of practicing attorneys in the United States are afforded the opportunity to be named “Nation’s Top Attorneys.” The recipients of this prestigious award have demonstrated the highest ideals of the legal profession.

We congratulate Mr. Ransom on his accomplishments!

Ignition Devices In All New Cars ?

There’s developing technology exploring the possibility that a fingerprint-based ignition interlock device system may someday be installed in new vehicles in the hopes of stopping impaired drivers from operating their vehicles.In other words, sobriety tests in all new cars might prevent most drunk driving deaths.

Installing devices in new cars to prevent drunk drivers from starting the engine could prevent 85 percent of alcohol-related deaths on U.S. roads, saving tens of thousands of lives and billions of dollars from injury-related costs, according to a new analysis.

“Alcohol interlocks are used very effectively in all 50 states as a component of sentencing or as a condition for having a license reinstated after DUIs, but this only works for the drunk drivers caught by police and it doesn’t catch the people who choose to drive without a license to avoid having the interlock installed,” said lead author Dr. Patrick Carter, an emergency physician with the University of Michigan Health System in Ann Arbor.

Most drunk drivers make about 80 trips under the influence before they are stopped for a DUI, Carter said. “If we decided that every new car should have an alcohol ignition interlock that’s seamless to use for the driver and doesn’t take any time or effort, we suddenly have a way to significantly reduce fatalities and injuries that doesn’t rely solely on police.”

Carter and colleagues used U.S. records of traffic accidents and fatalities to determine how many involved drunk driving and then estimated how many of these incidents could be avoided in the future by fitting new cars with alcohol-interlock devices, which detect blood-alcohol levels and prevent drivers above a certain threshold from starting the car.

Then, they estimated the numbers of deaths and injuries that could be prevented in the first year that all new cars sold had screening systems, and assumed it would take 15 years for older models to be replaced with new vehicles.

Over the 15-year implementation period, interlocks may eliminate about $343 billion in costs from fatalities and injuries related to drunk driving, the researchers estimate. Assuming the device costs $400 per vehicle and is 100 percent accurate, the interlock would pay for itself after three years by way of avoided injury costs.

Getting DADSS into all vehicles can eliminate the element of chance involved in catching drunk drivers under our current system that relies on police, said Adrian Lund, president of the Insurance Institute for Highway Safety.

Unlike the alcohol ignition interlocks which require you to blow into a devise and are used for convicted drunk drivers, DADSS is a driver assist system that would be seamless, take less than half a second, and use infrared light to measure a driver’s blood alcohol content in the breath or through the fingertips, which is believed to be far more reliable.

My opinion? Although noble, these devices may cause legal problems and litigation than they’re worth. How accurate are the devices? Are they calibrated regularly? Do they store information which can be used against a defendant accused of DUI? Would the devices also test for the presence of drugs? If so, what if the driver has a prescription for the drugs? Only time will tell . . .

State v. Henderson: Lesser Included Jury Instructions

 

In State v. Henderson, the Washington Supreme Court decided that the jury of a defendant charged with first degree murder by extreme indifference should have been instructed on the lesser included offense of first degree manslaughter.

Some background on “Lesser Included” Crime is necessary. In short it is a lesser crime whose elements are encompassed by a greater crime. A lesser included offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of Murder, Assault is a lesser included offense of Rape, and Unlawful Entry is a lesser included offense of Burglary.

Here, the defendant Marsele Henderson fired gunshots at a house party on November 16, 2008. One of the most important – and disputed – facts in this case is how many people were in the area in front of the house at this time just prior to shots being fired toward the house. Was it a small group of people or a large group? Witness testimony on this point varied significantly.  This question mattered because whether Henderson shot into a large crowd of people or whether he shot toward an area with very few people determined the nature of the crime.

A month after the shooting, prosecutors charged Henderson with Murder in the First Degree by Extreme Indifference under RCW 9A.32.030(1)(b). At trial, Henderson asked that the jury be instructed on the lesser included charge of Manslaughter in the First Degree under RCW 9A.32.060.  Initially, the Prosecutor agreed. However, the Prosecutor later changed its position. The trial court denied the defendant’s motion for a lesser included jury instruction. The jury convicted Henderson of Murder in the First Degree by Extreme Indifference. Henderson appealed, contending that the trial court erred when it refused to instruct the jury on Manslaughter in the First Degree. The Court of Appeals decided that Henderson should have been granted the lesser-included jury instruction. The state appealed.

Ultimately, the Washington Supreme Court decided the issue of whether Henderson was entitled to a jury instruction on Manslaughter First Degree as a lesser included charge to Murder in the First Degree by Extreme Indifference.

The WA Supremes upheld the Court of Appeals and decided that Henderson should have been granted the lesser-included jury instruction. It affirmed the Court of Appeals and reversed Henderson’s conviction.

In reaching this decision, the court reasoned that under State v. Workman, a defendant is entitled to an instruction on a lesser included offense when (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence in the case supports an inference that the lesser crime was committed. Under this framework, the court based their conclusion on two unique aspects of the case.

First, this crime involved a shooting outside a house party and the evidence consisted largely of eyewitness testimony that varied widely and was often conflicting. Thus, viewing the evidence in the light most favorable to the defendant results in a much more significant shift than it would in cases with uncontroverted evidence.

Second, the definitions of the lesser crime (disregarding a substantial risk that a homicide may occur) and the greater crime (creating a grave risk of death) are very close to each other-much closer than is typical.

As a result, the WA Supremes could not say that no jury could have rationally found that the defendant committed the lesser crime rather than the greater crime. Thus, the court held that the jury should have been allowed to determine whether Henderson committed the greater or lesser crime.

My opinion? Good decision.

In criminal trials, juries are given the option of convicting defendants of lesser included offenses when warranted by the evidence. Giving juries this option is crucial helps our criminal justice system because when defendants are charged with only one crime, juries must either convict them of that crime or let them go free. In some cases, that will create a risk that the jury will convict the defendant despite having reasonable doubts.

To minimize that risk, courts prefer to err on the side of instructing juries on lesser included offenses. Under State v. Fernandez-Medina, a jury must be allowed to consider a lesser included offense if the evidence, when viewed in the light most favorable to the defendant, raises an inference that the defendant committed the lesser crime instead of the greater crime. If a jury could rationally find a defendant guilty of the lesser offense and not the greater offense, the jury MUST be instructed on the lesser offense.

State v. Budd: Ferrier Warnings Improperly Given

Good decision. In State v. Budd, the WA Court of Appeals decided a law enforcement officer must properly deliver all three parts of the Ferrier warnings before entering a residence.

Some background on Ferrier warnings is necessary. In State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998) the WA Supreme Court held that, before entering a citizen’s home without a warrant, a law enforcement officer must (1) ask the citizen for consent, (2) inform the citizen that he can revoke consent at any time and (3) notify the citizen that he can limit the scope of the entry into the home. If an officer fails to provide these Ferrier rights/warnings, then any evidence obtained from the search is “fruits of the poisonous search” and also subject to being suppressed.

Appellant Michael Allen Budd was convicted of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct under RCW 9.68A.070. He contends that the trial court erred in its denial of his ER 3.6 motion to suppress evidence obtained in a warrantless search of his residence by the officers investigating the case. He argued the Ferrier warnings were insufficient.

Washington State Patrol’s Missing and Exploited Children Task Force  received an anonymous “cybertip” from the National Center for Missing and Exploited Children. The anonymous source declared that Michael Allen Budd communicated with young girls on Yahoo! Messenger and Windows Live Messenger, both free online chat services. The anonymous source stated that he or she had seen child pornography on Budd’s computer.

On March 11,2009, Detective Kim Holmes travelled to Ephrata to Mr. Budd’s home. In law enforcement, a “knock and talk” is an investigative technique where one or more police officers approaches a private residence, knocks on the door, and requests consent from the owner to search the residence. Law enforcement performs the “knock and talk” when criminal activity is suspected, but officers lack probable cause to obtain a search warrant.

Detective Kim and other officers made contact with Holmes at his home. Although many of the facts are in dispute, it appeared that Detective Kim did not properly discuss Ferrier warnings with Mr. Holmes.

The court reasoned that Detective Holmes’ police report lacked any mention of Holmes’ informing Budd that he had a right to decline consent to enter the home, limit the scope of the search, and revoke consent at any time. Finally, the report implied that Holmes misrepresented that a court would authorize a search warrant. Based on this, the Court of Appeals ruled that the detective did not voice all Ferrier warnings before entering the home, and that law enforcement officers MUST deliver all cautions before entering the residence. Consequently, the Court reversed the conviction and dismissed the case.

My opinion? I agree with this excerpt from the Court of Appeals:

Viewing child pornography is a hideous crime that robs children of innocence and scars them for life. Those who watch child pornography obsessively gamer gratification through violent acts on defenseless children. Catching one at the crime takes diligence since the viewer indulges in the privacy of his home, often by elaborate security measures on his computer. Thus, we reluctantly reverse the trial court.

Nevertheless, as judges, we pledged to uphold the constitution and the endearing rights protected by the constitution. Those engaged in hideous conduct are entitled to the protections afforded under our state and federal constitution including the right to be free of unlawful searches and seizures.

Well said.

State v. Samalia: Search of Abandoned Cell Phone is Lawful

In State v. Samalia, the WA Court of Appeals upheld the defendant’s conviction for Possession of a Stolen Motor Vehicle under RCW 9A.56.068 because the police used evidence from the defendant’s cell phone found in the abandoned stolen vehicle after he fled from the vehicle and evaded pursuit.

Yakima Police Officer Ryan Yates was on patrol when his vehicle license plate reader indicated he had passed a stolen vehicle. The officer followed the stolen vehicle. The driver got out of the vehicle and faced towards Officer Yates. The driver would not obey Officer Yates’ command to get back in the vehicle and fled. Officer Yates pursued the male driver but he got away.

Officer Yates searched the car and found a cell phone in the center console. Officer Yates conducted some investigations and discovered that the phone belonged to the defendant Mr. Samilia. Later, Officer Yates located Mr. Samalia’s picture in a police database. Officer Yates then identified Mr. Samalia from the database picture as the fleeing man who had been driving the stolen vehicle.

The State charged Mr. Samalia with possession of a stolen motor vehicle. He moved unsuccessfully to suppress the cell phone evidence under ER 3.6. From the above facts, the trial court concluded the cell phone was abandoned, therefore, Mr. Samalia no longer had an expectation of privacy in it. Following a bench trial, the court found Mr. Sam alia guilty as charged. He appealed.

The court reasoned that a warrantless search and/or seizure violates the WA Constitution unless it falls under one of ”’a few jealously guarded exceptions” to the warrant requirement. Searching voluntarily abandoned property is an exception to the warrant requirement. In other words, law enforcement may retrieve and search voluntarily abandoned property without a warrant or probable cause.

The court also considered the status of the area where the cell phone was located. Here, the search area was an unattended stolen vehicle that Mr. Samalia had been driving and had fled from when a police officer approached and directed him to return to the vehicle. Consequently, the court found that a suspect’s hasty flight under these circumstances is sufficient evidence of an intent to abandon the vehicle. In conclusion, because the cell phone was abandoned; used in pursuit of the fleeing suspect, and not directly used to identify Mr. Samalia, the court held that the trial court did not err in denying suppression of Mr. Samalia’s identification from a police database.

My opinion?

I disagree with the court’s decision. This decision is too great a leap in the wrong direction; and fails to follow Washington’s current jurisprudence. Despite the Court’s reasoning, there is NO reported Washington decision which has directly addressed whether a citizen relinquishes his reasonable expectation of privacy in the data on his cell phone by leaving the phone behind at the scene of a crime.

Our jurisprudence says police must generally secure a warrant before conducting a search of data on a cell phone – even one that has been left behind in a place where its owner has no privacy interest. Requiring a search warrant will assure that there is probable cause to believe that the defendant is involved in criminal activity and that evidence of the criminal activity can be found in the data on the cell phone.