Monthly Archives: June 2018

Vehicular Homicide

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In State v. Frahm, the WA Court of Appeals held the defendant was properly convicted of vehicular homicide for the death of a Good Samaritan who was struck by another vehicle while rendering assistance to the occupant of the vehicle that was initially struck by the defendant’s vehicle. The defendant’s rear-ending of the first vehicle proximately caused the death of the Good Samaritan.

BACKGROUND FACTS

Shortly before dawn on December 7, 2014, a Ford F-150 truck driven by Frahm rear-ended a Honda CR-V sport utility vehicle (SUV) driven by Steven Klase. The impact caused the SUV to spin out of control, strike a concrete barrier in the freeway median, and come to rest partially blocking the left and middle lanes of I-205. Klase sustained serious injuries and remained in his vehicle. Frahm fled the scene.

An eyewitness, Richard Irvine, stopped his vehicle on the right shoulder. Irvine activated
his vehicle’s emergency flashers, exited his vehicle, and crossed the freeway on foot. Seeing Klase’s injuries, Irvine called 911. While Irvine spoke with a 911 dispatcher, a Honda Odyssey minivan driven by Fredy Dela Cruz-Moreno approached in the left lane. Cruz-Moreno’s minivan struck Klase’s vehicle and propelled it into Irvine. As a result, Irvine died.

Later that same day, Frahm, the registered owner of the F-150, contacted police to report
his vehicle as stolen. When the police later recovered Frahm’s truck, it had front end damage. The police processed the vehicle, and Frahm’s DNA (deoxyribonucleic acid) matched DNA taken from the deployed airbag.

The police interrogated Frahm, and he maintained both that his truck had been stolen and that he had not been driving at the time of the accident. In February 2015, a witness, Dusty Nielsen, contacted the police. Nielsen provided an alibi for Frahm for the time of the accident. Nielsen lied. Frahm had not been with Nielsen the night of the accident. The two men did not know each other until they met in jail, after the accident.

When questioned by police about discrepancies in his story, Nielsen recanted. He insisted that he alone came up with the idea to provide the false alibi. The State charged Frahm with six crimes: vehicular homicide, manslaughter in the first degree, vehicular assault, hit and run, false reporting, and conspiracy to commit perjury in the first degree.

At trial, and without objection, the State played an unredacted recording of Frahm’s
interrogation by the police. During the interrogation, the police repeatedly accused Frahm of lying. Frahm admitted to drinking the night before the accident but iterated that somebody stole his truck, and that he was not the driver at the time of the accident.

The jury convicted Frahm of vehicular homicide, vehicular assault, hit and run, false
reporting, and conspiracy to commit perjury. Frahm appealed.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals held that sufficient evidence supported Frahm’s Vehicular Homicide conviction. It reasoned that a driver is guilty of vehicular homicide when the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person. Furthermore, “legal causation” involves a determination of whether liability should attach as a matter of law given the existence of cause in fact.

“If the factual elements of the tort are proved, determination of legal liability will be dependent on ‘mixed considerations of logic, common sense, justice, policy, and precedent,” said the Court.

The Court further reasoned that a defendant’s conduct is a proximate cause of harm to another if, in direct sequence, unbroken by any new independent cause, it produces the harm, and without it the harm would not have happened. Here, the issue was whether any rational jury could find the essential elements of the crime of Vehicular Homicide beyond a reasonable doubt.

“Although this specific victim may not have been foreseeable, the general field of danger was clearly foreseeable. And the record as a whole supports that a reasonable jury could find beyond a reasonable doubt that Frahm’s rear-ending Klase’s vehicle proximately caused Irvine’s death.”

Second, the Court of Appeals held that sufficient evidence supports the charge of Conspiracy to Commit Perjury.

The Court said a person is guilty of conspiracy if, with the intent to commit a crime, he or she agrees with one or more persons to engage in or cause the performance of such [criminal] conduct, and any one of them takes a substantial step in pursuance of such agreement. Consequently, making “materially false” statements to police who are conducting investigations is a crime.

“Nielsen and Frahm met in jail,” said the Court of Appeals. “They hatched the plan to provide Frahm with a false alibi.” The Court further explained that Frahm provided Nielsen with the details necessary to make the lie appear more credible, including a description of his truck’s interior on the night of the accident. “When viewing the evidence and its reasonable inferences in a light most favorable to the State, sufficient evidence supports Frahm’s conspiracy conviction,” said the Court.

Finally, the Court rejected Frahm’s arguments that his defense counsel was ineffective and his speedy trial rights were violated. With that, the Court of Appeals upheld Frahm’s convictions.

My opinion? First, my sympathies to all parties involved. This case is tragic for all sides. Second, this case presents an interesting blend of criminal and tort law – specifically, negligence – which is not typically seen in everyday court. Issues of duty, breach of duty, proximate cause and damages rarely arise in criminal statutes. Typically, the State need only probe intent and not negligence. However, the specific language of the vehicular homicide statute includes criminal liability for negligent acts.

Please contact my office if you, a friend or family member face criminal charges. Hiring competent counsel is the first step toward achieving a just result in court.

Murder Rates Decline

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Wonderful article by German Lopez of Vox discusses how crime and murder rates generally declined in the U.S.’s 30 largest cities in 2017, following two years of sharp increases in the murder rate nationwide.

According to a new report by the Brennan Center for Justice, the overall crime rate fell in the 30 largest cities by 2.1 percent compared to 2016, the violent crime rate by 1 percent, and the murder rate by 3.4 percent.

“Large decreases in Chicago and Houston, as well as small decreases in other cities, contributed to this decline [in the murder rate],” researchers Ames Grawert, James Cullen, and Vienna Thompkins wrote.

One caveat to the findings: Murder rates in some US cities, including Chicago, remain elevated compared to a couple of years ago. “The murder rate in Chicago, which increased significantly in 2015 and 2016, declined by 12.3 percent in 2017, but remains more than 60 percent above 2014 levels,” the report found.

And some cities, including Philadelphia, Indianapolis, and Baltimore, did see increases in the murder rate in 2017. This kind of local variance and fluctuation is typical in US crime statistics: Even as national trends head in one direction, that doesn’t mean all cities and states always follow the same path.

According to Lopez, the report updated Brennan’s preliminary findings from December, broadly reaching the same conclusions.

The full official numbers for the entire US, compiled by the FBI, will come out later this year. Lopez reasons that generally, though, the Brennan Center’s reports have done a good job predicting national trends in the past few years. And the news, overall, is good.

Lopez says the past two years’ increases in the murder rate got a lot of attention, with President Donald Trump and Attorney General Jeff Sessions often bringing them up in speeches to justify “tough on crime” policies. But before they’ve been able to implement such policies and let them take root (especially in local and state jurisdictions, where federal policymakers have very limited power), these rates appear to be coming down.

Lopez says criminologists still aren’t sure why murder in particular appeared to spike so much in 2015 and 2016. Some argued that there might have been a “Ferguson effect,” named after the city in Missouri that exploded into protests over the police shooting of Michael Brown: Due to protests against police brutality over the past few years, police were, the theory goes, scared off from doing proactive policing, emboldening criminals.

Other experts argued a different kind of Ferguson effect: Widely reported incidents of police brutality and racial disparities in police use of force led to elevated distrust in law enforcement, which makes it much harder for police to solve and prevent crimes.

Yet many criminologists cautioned that it’s also possible the two years’ increases were blips in the data, not a new long-term trend. This isn’t unprecedented; in 2005 and 2006, the murder rate in the US increased before continuing its long-term decline — to new record lows — in the ensuing years.

“It now looks possible — though we’ll need more years of data to confirm — that 2015 and 2016 were replays of 2005 and 2006. If that holds, then perhaps the US isn’t in the middle of the “American carnage” that Trump warned about.”

Since the murder rate in particular is generally low, it’s prone to big statistical fluctuations. As one example, Brennan found that Las Vegas saw a 23.5 percent spike in its murder rate last year, but that was due to the mass shooting at a country music concert there that killed 58 people. A single event, albeit a very bad one, led to a dramatic shift in the murder rate.

“That’s why criminologists generally demand several years of data before they declare a significant crime trend,” said Lopez.

ACLU Sues Whatcom County Jail

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Excellent article by Denver Pratt of the Bellingham Herald says the American Civil Liberties Union (ACLU)  filed a federal civil rights lawsuit Wednesday against the Whatcom County Jail and the Whatcom County Sheriff’s Office for allegedly denying inmates with opioid use disorder access to medication.

The lawsuit filed in Seattle in the U.S. District Court for the Western District of Washington alleges the jail’s policy of refusing to provide access to medication assisted treatment to treat opioid addiction violates the Americans with Disabilities Act (ADA).

Pratt reports that Opioid Use Disorder is classified as a disability under the ADA, and is also a recognized substance use disorder. A person qualifies as having opioid use disorder if they meet two or more criteria that reflect impaired health function over a 12-month period.

The lawsuit alleges that the jail has a policy for giving medication, such as buprenorphine (Suboxone or Subutex), or methadone, to pregnant women suffering from opioid use disorder, but has no policy for non-pregnant individuals, forcing them to go into withdrawal once they’re booked.

The lawsuit was brought on behalf of two inmates who were receiving medication assisted treatment before they became incarcerated. However, the ACLU is seeking class-action status for all non-pregnant people incarcerated who have Opioid Use Disorder.

“Defendants’ policy and practice of denying medications to treat opioid use disorder to non-pregnant individuals is both dangerous and discriminatory,” according to the complaint filed in the case.” It singles out a particularly vulnerable group of disabled people, forces them to suffer unnecessarily from painful opioid withdrawal, and subjects them to an increased risk of relapse and overdose death.”

Whatcom County Sheriff Bill Elfo said Thursday he believed several other jails in Washington state are under scrutiny by the ACLU for opioid treatment. He said the county had not been served with the lawsuit yet as of Thursday afternoon, but noted the ACLU has 20 days to do so.

Elfo said the 2019 opening of a new 32-bed crisis triage center for people suffering from mental health and substance use disorders will provide an alternative to taking people who use opioids to jail, and give them access to treatment.

“This is something that’s been asked for for 20 years. I’m glad it’s something that’s finally on the horizon,” he said.

The project will expand the current Crisis Triage Center and will be on Division Street in Bellingham. It will cost up to an estimated $9.5 million.

My opinion?

First, kudos to Ms. Pratt for her excellent and timely reporting.

Second, lawsuits like this reveal the pressing need for Whatcom County to construct a new jail. A larger facility with upgraded services would not only better serve the needs of the incarcerated defendants, but also the jail staff and police officers who work there on a daily basis.

I’ve heard the arguments against a new jail. Clearly – and unfortunately – the community has voted down numerous proposals. What most people don’t understand, however, is that the current jail is decrepit, unsafe and virtually inhumane. As a result, we see riots and suicides happen at the jail with unsettling frequency.

Good luck to the ACLU. Hopefully, they’ll be instrumental toward making positive changes happen for the inmates and hardworking jail staff here in Whatcom County.

Search of Rental Cars

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In Byrd v. United States, the United States Supreme Court held that while a car thief does not have right to privacy in a stolen car no matter the degree of possession and control, the driver of a rental car can challenge a warrantless search of the vehicle even if the driver is not listed as an authorized driver on the rental agreement.

BACKGROUND FACTS

Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania.

Pennsylvania State Troopers stopped Byrd for a traffic infraction. They learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car.

The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). The District Court denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car.

COURT’S ANALYSIS AND CONCLUSIONS

In a unanimous decision favoring Byrd, Justice Anthony Kennedy wrote, “The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.”

The Court added that there can be numerous reasons why a driver unlisted on a rental contract may need to drive the rental car, and that the government had not shown that whether the simple breach of the rental contract would affect the expectation of privacy.

Also, the Court reasoned that one of the main rights attaching to property is the right to exclude others. Also, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude. “This general property-based concept guides resolution of the instant case,” said Justice Kennedy:

“The Government’s contention that drivers who are not listed on rental agreements always lack an expectation of privacy in the car rests on too restrictive a view of the Fourth Amendment’s protections. But Byrd’s proposal that a rental car’s sole occupant always has an expectation of privacy based on mere possession and control would, without qualification, include thieves or others who have no reasonable expectation of privacy.”

The Court rejected the Government’s arguments that an unauthorized driver has no privacy interest in the vehicle. Byrd, in contrast, was the rental car’s driver and sole occupant. His situation is similar to the defendant in Jones v. United States, who had a reasonable expectation of privacy in his friend’s apartment because he had complete dominion and control over the apartment and could exclude others from it:

“The expectation of privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car is rented or owned by someone other than the person currently possessing it, much as it did not seem to matter whether the defendant’s friend in Jones owned or leased the apartment he permitted the defendant to use in his absence.”

The Court also rejected the Government’s argument that Byrd had no basis for claiming an expectation of privacy in the rental car because his driving of that car was so serious a breach of Reed’s rental agreement that the rental company would have voided the contract once he took the wheel. “But the contract says only that the violation may result in coverage, not the agreement, being void and the renter’s being fully responsible for any loss or damage,” said Justice Kennedy. “And the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car.”

Kennedy’s decision concluded that there remained two issues which the Supreme Court remanded back to the lower courts: (1) whether Officer Long had probable cause to search the car in the first place, and (2) whether Byrd intentionally used a third party as a straw man in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.

With that, the Supreme Court vacated Byrd’s conviction and remanded back to the Third Circuit Court of Appeals.

Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Alito also filed a concurring opinion.