Category Archives: Bellingham Defense Attorney

WA State Abolishes Death Penalty

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But the court’s opinion eliminated it entirely, converted the sentences for the state’s eight death row inmates to life in prison without release, and supported a trend away from capital punishment in the U.S.

“The death penalty is becoming increasingly geographically isolated,” said Robert Dunham, executive director of the Washington, D.C.-based Death Penalty Information Center. “It’s still on the books in 30 states, but it’s not being used in 30 states. It’s becoming a creature of the Deep South and the Southwest.”

Texas continues to execute more prisoners than any other state — 108 since 2010. Florida has executed 28, Georgia 26 and Oklahoma 21 in that time frame. But nationally, death sentences are down 85 percent since the 1990s, Dunham said.

In the past 15 years, seven states — Connecticut, Delaware, Illinois, Maryland, New Jersey, New Mexico and New York — have abandoned capital punishment through court order or legislative act, and three — Colorado, Oregon and Pennsylvania — have adopted moratoriums.

The concerns cited in those states have ranged from procedural matters, such as the information provided to sentencing jurors in New York, to worries about executing an innocent person or racial and other disparities in who is sentenced to death, as was the case in Washington.

“The death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant,” Chief Justice Mary Fairhurst wrote in the lead opinion.

“Our capital punishment law lacks ‘fundamental fairness.”  ~Chief Justice Mary Fairhurst 

According to La Corte and Johnson, defense lawyers had long challenged the death penalty on those grounds. This time, death penalty critics were armed with more data about how capital punishment works, including a statistical analysis by University of Washington sociologists. Their report showed that although prosecutors were not more likely to seek the execution of black defendants, juries were about four times more likely to sentence black defendants to death.

“Now the information is plainly before us,” Fairhurst wrote. “To the extent that race distinguishes the cases, it is clearly impermissible and unconstitutional.”

Racial Profiling of Latinos in LA County

Excellent article by Joel Rubin and Ben Poston of the LA Times examines a disturbing trend. Apparently, more than two-thirds of the drivers pulled over by the Domestic Highway Enforcement Team were Latino, according to a Times analysis of Sheriff’s Department data. And sheriff’s deputies searched the vehicles of more than 3,500 drivers who turned out to have no drugs or other illegal items, the analysis found. The overwhelming majority of those were Latino.

Several of the team’s big drug busts have been dismissed in federal court as the credibility of some deputies came under fire and judges ruled that deputies violated the rights of motorists by conducting unconstitutional searches.

The Times analyzed data from every traffic stop recorded by the team from 2012 through the end of last year — more than 9,000 stops in all — and reviewed records from hundreds of court cases. Among its findings:

  • Latino drivers accounted for 69% of the deputies’ stops. Officers from the California Highway Patrol, mainly policing traffic violations on the same section of freeway, pulled over nearly 378,000 motorists during the same period; 40% of them were Latino.
  • Two-thirds of Latinos who were pulled over by the Sheriff’s Department team had their vehicles searched, while cars belonging to all other drivers were searched less than half the time.
  • Three-quarters of the team’s searches came after deputies asked motorists for consent rather than having evidence of criminal behavior. Several legal scholars said such a high rate of requests for consent is concerning because people typically feel pressured to allow a search or are unaware they can refuse.
  • Though Latinos were much more likely to be searched, deputies found drugs or other illegal items in their vehicles at a rate that was not significantly higher than that of black or white drivers.

From top to bottom: L.A. County Sheriff’s Deputies search a motorist’s suitcase. Also a deputy uses a device for measuring density to search for hidden drugs and clutches some tools he uses to perform vehicle searches. (Myung J. Chun / Los Angeles Times)

The L.A. County Sheriff’s Department said that racial profiling plays no role in the deputies’ work and that they base their stops only on a person’s driving and other impartial factors.

In December, Sheriff Jim McDonnell heaped praise on the team, ticking off its accomplishments in a lengthy statement. “The importance of this mission cannot be overstated,” the sheriff said.

But several legal and law enforcement experts said the department’s own records strongly suggest the deputies are violating the civil rights of Latinos by racially profiling, whether intentionally or not.

“When they say, ‘We’re getting all these drugs out of here,’ they are not taking into account the cost,” said David Harris, a law professor at the University of Pittsburgh who studies racial profiling by police. “They are sacrificing their own legitimacy in the community as a whole and the Latino community in particular.”

Kimberly Fuentes, research director for the California League of United Latin American Citizens, described The Times’ findings as “extremely disturbing and troubling” and said the advocacy organization would demand a meeting with Sheriff’s Department officials.

“These findings risk tarnishing any trust between the Sheriff’s Department and the Latino community,” Fuentes said.

My opinion? A pullover and search of your vehicle is unlawful if the reason for the pullover/search is racial profiling. Racial profiling is the practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior. Examples of racial profiling by federal, state, and local law enforcement agencies are illustrated in legal settlements and data collected by governmental agencies and private groups, suggesting that minorities are disproportionately the subject of routine traffic stops and other security-related practices.

Also, pretextual searches are also unlawful. Pretext is an excuse to do something or say something that is not accurate. Pretexts may be based on a half-truth or developed in the context of a misleading fabrication. Pretexts have been used to conceal the true purpose or rationale behind actions and words. A pretextual search and arrest by law enforcement officers is one carried out for illegal purposes such as to conduct an unjustified search and seizure.

Please contact my office if you, a friend or family member was charged with a crime after being racially profiled and/or pulled over for unlawful pretext. I provide zealous representation to all defendants facing these circumstances.

Sexual Assault Kits Remain Untested

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The Attorney General’s Office has completed its inventory of Washington state’s unsubmitted sexual assault kits, finding 6,460 kits that have not yet been submitted for lab testing by local law enforcement agencies.

A sexual assault kit is a collection of evidence gathered from a survivor by a medical professional, usually a specially trained sexual assault nurse examiner. A crime lab then tests the evidence for DNA that will help law enforcement find a perpetrator.

This month, Attorney General Bob Ferguson will request the remainder of a federal grant that funds sexual assault kit testing. The Attorney General’s Office (AGO) is currently reviewing the inventory data and working with the Crime Lab to develop a plan for testing the kits, which potentially provide DNA evidence for sexual assault investigations.

The AGO obtained inventory information from 208 law enforcement agencies across Washington state. These 6,460 kits were collected and booked into evidence by local law enforcement, but were not submitted to a crime lab for a DNA analysis. Consequently, they remain in evidence storage facilities around the state.

Many of these unsubmitted kits have been in an evidence storage facility for years. The oldest untested kit reported by local law enforcement to the AGO dates back to 1982.

“Sexual assault survivors deserve justice,” said Ferguson. “Each sexual assault kit tells a story from a survivor that must be heard.”

The inventory is part of the AGO’s Sexual Assault Kit Initiative project. In October 2017, the AGO won a grant for $3 million from the U.S. Department of Justice to assist law enforcement with testing and investigating untested sexual assault kits. The grant process, part of the Bureau of Justice Assistance Sexual Assault Kit Initiative, was highly competitive.

The grant funds a team of investigators within the AGO dedicated to the project. Attorney General Ferguson plans to dedicate $1.5 million to pay for the testing of kits – the maximum allowable under the grant.

So far, the AGO has received 25 percent of the $3 million grant in order to inventory the kits. Now that the inventory of unsubmitted kits is complete, Attorney General Ferguson can request the remainder of the funds from Bureau of Justice Assistance.

There are two types of sexual assault kit backlogs in Washington state and across the country. The first is the “unsubmitted” sexual assault kit backlog, which consists of kits that sit in a law enforcement evidence storage facility because a DNA analysis was never requested. With today’s announcement, Attorney General Ferguson took the first key step in eliminating Washington’s unsubmitted kit backlog.

The second type of backlog occurs in crime lab facilities, and consists of “backlogged” sexual assault kits that have been submitted, but have not yet been tested.

The State of Washington has made progress on processing its backlog of sexual assault kits over the past several years, but additional work remains. In 2015, led by Representative Tina Orwall (D-Burien), the Legislature gave funds to the Crime Lab to reduce the backlog.

According to the Washington State Patrol, more than 3,300 backlogged kits have been submitted to the Crime Lab using this legislative funding. Of those kits, about 1,700 have been tested and about 1,100 are currently in the testing process. These totals do not include the 6,460 unsubmitted kits Ferguson inventoried that are held by local law enforcement.

In Washington state, the State Patrol Crime Lab oversees the testing of all of the state’s DNA evidence. The Crime Lab is outsourcing the sexual assault kits to a private lab to complete the DNA testing. The Crime Lab must conduct a peer review of all evidence tested by outside labs and is the only agency permitted to upload DNA profiles into the national forensic DNA database, known as CODIS.

Once the kits are tested, local law enforcement can use DNA to reopen cold cases. Testing these kits will identify serial rapists, link cases across the country, provide critical links that could solve homicide cases and provide answers to victims and their families.

My opinion? I’m impressed our legislature is appropriating more funding toward testing rape kits. Forensic evidence such as rape kits benefit everyone, including the defendant. The evidence gives information beyond “he said / she said” allegations. Rape kits analyze DNA evidence, reveal the location and extent of injuries/trauma sustained from alleged sexual assaults and may contain notes from interviews with sexual assault nurse practitioners. All of this evidence helps the investigatory process.

Violation of No-Contact Order & Defense of Property

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In State v. Yelovich, the WA Supreme Court held that a “Defense of Property” jury instruction is not available when there is a valid court order prohibiting the defendant from contacting the protected party.

BACKGROUND FACTS

Mr. Yelovich and Ms. De Armond dated for more than five years. At some point, and during all times relevant to this case, there was a valid no-contact order prohibiting Yelovich from contacting De Armond. The order forbids Yelovich from “coming near and from having any contact whatsoever, in person or through others, by phone, mail or any means, directly or indirectly” with De Armond. It also prohibited Yelovich from causing any physical harm or bodily injury to De Armond.

On the day in question, Yelovich parked his car in the driveway of his son’s house. He was moving boxes from the garage, and an approximately four-and-a-half-foot wood fence separated him and his car. After about an hour, Yelovich believed he saw someone through the fence, but he could not identify the person. When he went to his car, which had a broken passenger window, he saw that his cell phone and other personal belongings were missing. He saw De Armond walking down the street, and he testified at trial that he “knew then that she did it.”

Yelovich was aware that he was prohibited from contacting De Armond, but he thought the police would not arrive in time to recover his phone. Although he admitted it “was an irrational, radical move,” he chased after her in his car. When he found her a few blocks later, he got out of his car and attempted to take her purse because he believed she had put his phone in it.  A struggle ensued, and De Armond testified that he was “bouncing her off the ground.” Her testimony was corroborated by a Good Samaritan who intervened. He testified that he “saw a man straddling a female. I saw him striking her,” and “he was lifting her up off the ground and slamming her on the ground.”

Both the fire department and police responded to the incident. De Armond was treated for minor injuries, including redness, bruising, and a small laceration. The responding police officer who interviewed De Armond noted she seemed intoxicated and “she had a really hard time keeping herself together.”

The State charged Yelovich with one count of felony violation of a no-contact order predicated on his assault of De Armond and one count of Bail Jumping. At trial, he argued that he was entitled to a jury instruction on defense of property because he was protecting his cell phone, which he believed De Armond had stolen.

For those who don’t know, a jury instruction is a guideline given by the judge to the jury about the law they will have to apply to the facts they have found to be true. The purpose of the instructions is to help the jury arrive at a verdict that follows the law of that jurisdiction. AT any rate, the judge refused, reasoning that Yelovich “was acting offensively, not defensively to protect property.”

The jury convicted Yelovich as charged. He appealed only his felony violation of the no-contact order on the basis that he was improperly denied a jury instruction. The Court of Appeals affirmed the trial court, and Yelovich appealed.

ISSUE

Whether the trial court improperly refuse to instruct the jury on the affirmative defense of defense of property.

COURT’S ANALYSIS & CONCLUSIONS

The SUpreme Court reasoned that under statute, Violation of a No-Contact Order is usually a gross misdemeanor, but it is elevated to a Class C felony if the restrained party assaults the protected party during the violation. Therefore, assault is an essential element of the crime of felony violation of a no-contact order, and the State must prove it occurred beyond a reasonable doubt.

Yelovich relies on Washington’s Self-Defense and Defense of Property Statute to claim that he may use defense of property as an affirmative defense. The statute states:

“The use, attempt, or offer to use force upon or toward the person of another is not unlawful . . . whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.”

Yelovich argues the statute provides “a valid affirmative defense whenever assault is charged or whenever assault is an element of the charged crime,” and therefore it may be used when the charged crime is felony violation of a no-contact order. However, Yelovich’s position ignores the critical role of the underlying no-contact order in this case.

The Court further reasoned that the standard language included in the order warned Yelovich that as the restrained party, he has the sole responsibility to avoid or refrain from violating the order’s provisions.

“By the terms of the order, Yelovich has no power to engage in self-help if doing so brings him into contact with De Armond. This bright line rule ensures that victims are not left wondering whether conduct prohibited by the no-contact order might later be deemed lawful. It therefore furthers the legislature’s goal to provide victims of domestic violence the maximum protection from abuse.”

The Court concluded that, in sum, Yelovich had sole responsibility for not violating the terms of a valid court order that forbids him from contacting De Armond, and so he had no authority to chase De Armond when he believed she had taken his phone. Accordingly, Yelovich was not entitled to a jury instruction on defense of property because his conduct violated the court order.

My opinion? Although the statute is very clear that mutual violations of the order and Defense of Property is not a defense, other defenses do exist. Please contact my office if you, a friend or family member face criminal charges for violating a no-contact order.

Policing for Profit

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Excellent article by Steven Robert Allen , Director of Public Policy, ACLU of New Mexico discusses how a federal judge declared “Policing for Profit” – better known as “Civil Asset Forfeiture” – unconstitutional.

For those who don’t know, Civil Asset Forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.

“With civil asset forfeiture, police literally accuse your stuff of a crime, and you as the owner have to prove that your stuff is innocent.”  – Steven Robert Allen, ACLU

Here’s an example: In 2010 Stephen Skinner and his son Jonathan, both African-American, were on a road trip to Las Vegas, Nevada, for a vacation when they were pulled over by New Mexico State Police for going 5 mph over the speed limit. The trooper searched their rental car and found several thousand dollars in cash and coins in their luggage that the two men had set aside for gaming at the casinos. The trooper called Skinner, then in his late 50s, “boy” and released him with a warning that “it’s not over.”

And sure enough, it wasn’t.

As they passed through Albuquerque, police and federal agents pulled them over on a pretext once again, went straight to their luggage, and confiscated their cash with no justification other than the racist assumption that two black men traveling with a big wad of cash must have come by it illegally. Neither Stephen or Jonathan were ever actually accused of a crime, much less convicted. Yet now the cops had their vacation money, and this money grab was perfectly legal.

In his article, Mr. Allen writes that most people who have property seized in this manner give it up as lost. The cost of hiring an attorney to argue before a judge that your property is “innocent” or, in other words, was not criminally acquired or used in the commission of a crime, often exceeds the value of the property. This is big business for police departments across the United States, who rely on these seized assets to pad their budgets. The Institute for Justice, a libertarian public interest law firm, estimates that in 2014 alone the Department of Justice took in $4.5 billion in forfeited assets. The assets taken in annually by local and state police departments are doubtless even higher.

In 2015, the ACLU of New Mexico, in collaboration with the Institute for Justice, the Drug Policy Alliance, and the Rio Grande Foundation, helped pass a bill that abolished civil asset forfeiture, requiring police to obtain a criminal conviction in court before they can take a person’s property. The bill also requires that any forfeited assets must go into a state general fund to reduce the profit motive inherent in this law enforcement practice. The bill passed unanimously, and New Mexico now has the strongest protections against civil asset forfeiture in the nation.

One person, Arlene Harjo, finally filed a lawsuit against the department with the help of the Institute for Justice, and, last week, she won. A federal judge handed down a landmark ruling that Albuquerque’s vehicle seizure program violates residents’ constitutional rights by taking their property before they’ve been convicted of a crime.

“This is a major moment in the fight against the unjust practice of civil asset forfeiture,” writes Allen. “Not only will New Mexico law enforcement agencies be forced to comply with our state prohibition against the practice, but this victory establishes an important legal precedent that victims of civil asset forfeiture can use to fight back nationwide.”

And indeed, the problem is not just in New Mexico. In 2015, the ACLU sued an Arizona county attorney and county sheriff challenging that state’s civil asset forfeiture laws, which create perverse and unconstitutional incentives for law enforcement to build multimillion-dollar slush funds that they get to control.

My opinion? This is excellent work from the ACLU and a wonderful decision from the federal courts. More than anything, this ruling out of New Mexico is a powerful reminder that brave individuals can still take a stand against systems of injustice, crack their foundations, and bring them tumbling to the ground. All it takes is a few people like Stephen Skinner and Arlene Harjo who say, “Enough. Not today. No more.”

Jury Bias

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In United States v. Kecheczian, the Ninth Circuit Court of Appeals decided a trial court mistakenly  allowed a juror to decide an aggravated identity theft and possession of unauthorized access devices case, when the juror admitted during jury selection that she had her social security number previously stolen and she was unable to explicitly state that she could put her personal biases aside.

BACKGROUND FACTS

After receiving a tip that Mr. Kechedzian was linked to a fugitive operating a large credit card fraud ring, federal agents conducted a trash pull from Kechedzian’s residence. In his trash, they found two counterfeit credit cards and, based on this, the agents obtained a search warrant. The resulting search of Kechedzian’s residence and cars uncovered two USB drives containing 1,451 stolen credit card numbers in text files, a Bluetooth-enabled “skimming device” commonly used to steal credit card information from gas station pumps, and several cards with stolen data re-encoded on the magnetic strips. Bank records revealed that many of the stolen card numbers had been used fraudulently at gas stations and other retail establishments across the United States.

Kechedzian was charged with two counts of possession of 15 or more Unauthorized Access Devices and two counts of Aggravated Identity Theft. The case proceeded to trial. At the beginning of jury selection, the federal district court judge read a general statement of the case, laying out the charges against Kechedzian. The judge then asked the following:

“Does anyone feel, just based on the charges in this case, based on what this case is about, that they could not be fair and impartial to both sides? Does anyone feel that way at this point in time?”

Juror # 3 raised her hand. From there, she informed the court she was a past victim of identity fraud. Furthermore, she did not know whether she could put aside her biases. Later, at sidebar, defense counsel sought to have Juror # 3 excused for cause. However, the judge denied the motion.

“I think at the end of the day she confirmed or committed to the principles of the presumption of innocence and burden of proof,” said the judge. “I would deny the motion.” Consequently, Juror # 3 sat on Kechedzian’s jury.

The jury ultimately returned a guilty verdict, and Kechedzian was sentenced to 65 months in prison followed by three years of supervised release. The district court also ordered $114,134.76 in restitution. Kechedzian timely appealed.

COURT’S ANALYSIS & DECISION

The Court of Appeals began by saying the Sixth Amendment guarantees criminal defendants a verdict by an impartial jury, and the bias or prejudice of even a single juror is enough to violate that guarantee. Accordingly, the presence of a biased juror cannot be harmless. The error requires a new trial without a showing of actual prejudice.  And any doubts regarding bias must be resolved against the juror. One important mechanism for ensuring impartiality is voir dire, which enables the parties to probe potential jurors for prejudice. After voir dire, counsel may challenge a prospective juror for cause, and a partial or biased juror should be removed if there is a showing of either implied or actual bias.

“Here, Kechedzian alleges bias under both theories,” said the Court.

Actual Bias Analysis

It explained that actual bias is the more common ground for excusing jurors for cause. Actual bias is the existence of a state of mind that leads to an inference that the person will not act with entire impartiality. Actual bias involves an inability to act impartially or a refusal to weigh the evidence properly It can be revealed through a juror’s express answers during voir dire, but it can also be revealed by circumstantial evidence during questioning.

The Court said that in contrast, implied bias is presumed only in extraordinary cases. “In analyzing implied bias, we look to whether an average person in the position of the juror in controversy would be prejudiced.”

Implied Bias Analysis

This Court described “implied bias” as applying to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.  Furthermore, the implied bias inquiry is an objective one. Even if a juror states or believes that she can be impartial, the court may find implied bias based on the circumstances.

The Court noted that here, although Juror # 3 was previously a victim of identity theft, this is not the type of “extreme” situation where we find implied bias. “Thus, we focus our analysis on the actual bias inquiry,” said the Court.

The Court reasoned that Juror #3 was ultimately asked if she could set aside her feelings, and act impartially and fairly to both sides of the case. She responded: “I believe so, yes.” The Court said that statement—“I believe so, yes”—appears somewhat equivocal. However, none of Juror #3’s equivocal statements could be understood as affirmative statements of impartiality. The Court reasoned that here, Juror #3 explicitly noted that she was unsure if she could put her personal biases aside.

“A juror can understand the presumption of innocence and burden of proof, yet still let personal prejudice infect her ability to be impartial.”

“When a juror is unable to state that she will serve fairly and impartially despite being asked repeatedly for such assurances, we can have no confidence that the juror will lay aside her biases or her prejudicial personal experiences and render a fair and impartial verdict,” said the Court. “Because this is precisely what occurred here, the district court was obligated to excuse Juror #3 for cause under an actual bias theory.”

Accordingly, the Court of Appeals reversed and remanded for a new trial.

My opinion? Good decision. In my trial experience, potential jurors who have suffered as victims of crime tend to be pro-prosecution. A potential juror who does not know if they can be fair or impartial should be excused for cause. Period.

Racial Disparities & Homicide

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Homicides involving white victims are significantly more likely to be solved with the arrest of a suspect than homicides involving victims of color, causing racial disparities in capital sentencing to begin as early as police investigations.

In a working paper, “Police, Race, and the Production of Capital Homicides,” Jeffrey Fagan of Columbia Law School and Amanda Geller of the New York University Department of Sociology examined national homicide data from 1976 to 2009. Researchers have previously shown that black defendants are more likely than their white counterparts to be charged with crimes eligible for capital punishment, to be convicted, and to be sentenced to death—and that racial disparities are largest for the small number of cases involving black defendants and white victims.

Fagan and Geller’s analysis concludes that compared to homicides involving white victims, those involving black victims are 23% less likely to be cleared and those involving other victims, mostly Latinos, are 17% less likely.

In a Washington Post story exploring similar findings, police pointed to urban residents’ concerns about retaliatory violence while civil rights leader Rev. William Barber stated: “There’s no big rush to solve a case when it’s considered ‘black on black.’ But if it is a black-on-white killing, then everything is done to make an arrest.”

Please contact my office if you, a friend or family member are charged with a crime and you suspect that the defendant or victim’s race or gender was a contributing factor in the investigation or filing of criminal charges. Our Constitution proclaims justice for all.

Federal Legislation to End Cash Bail

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Excellent news article by  of The Intercept discusses how Senator Bernie Sanders introduced legislation to end money bail on the federal level and create incentives for states to follow suit.

According to  , The No Money Bail Act is the latest example of the push from the Democrats to tackle criminal justice reform. It would prohibit money bail in federal criminal cases, provide grants to states that wish to implement alternate pretrial systems, and withhold grant funding from states that continue using cash bail systems.

Additionally, the bail reform “requires a study three years after implementation to ensure the new alternate systems are also not leading to disparate detentions rates,” according to a summary of the bill provided by Sanders’s office.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” the summary reads. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell. And this disproportionately affects minorities — fifty percent of all pretrial detainees are Black or Latino.”

In a statement accompanying the release of his bill, Sanders said the following:

“Poverty is not a crime and hundreds of thousands of Americans, convicted of nothing, should not be in jail today because they cannot afford cash bail. In the year 2018, in the United States, we should not continue having a ‘debtor prison’ system. Our destructive and unjust cash bail process is part of our broken criminal justice system – and must be ended.”

Also according to , the idea of eliminating money bail is controversial, even among Democrats, so it is unlikely that the legislation will soon be enacted into law. Indeed, Rep. Ted Lieu, D-Calif., introduced a similar measure in the House in 2016 and 2017, but his bills gained little traction. Last year, Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., introduced a measure to encourage states to reform bail practices, though they did not go as far as calling to eliminate cash bail on the federal level.

Still, these efforts represent a growing sense of urgency among lawmakers to address the racial disparities that plague the criminal justice system. Senate Minority Leader Chuck Schumer last month introduced a bill to decriminalize marijuana at the federal level, removing the drug from the Controlled Substances Act. The House passed a tepid prison reform bill that was pushed by President Donald Trump’s son-in-law Jared Kushner in May, and the Senate has introduced similar legislation.

For-profit companies are “making a fortune” off indigent defendants, according to the summary of the Sanders bill. Indeed, the for-profit bail industry makes between $1.4 billion and $2.4 billion a year, the American Civil Liberties Union wrote in a 2017 report. An inability to afford bail leaves defendants across the country languishing in pretrial detention bars for extended periods of time; in 2014, about 60 percent of people in U.S. jails had not been convicted of a crime, the Department of Justice’s Bureau of Justice Statistics reported.

“Pretrial detention should be based on whether or not someone truly should not be freed before their trial,” the summary continued. “It should not depend on how much money they have, or what kind of mood the judge is in on a given day, or even what judge the case happens to come before. We also must insure that jurisdictions do not eliminate cash bail but find pretexts to continue unfairly locking people up before trial.”

State and local governments have made similar efforts in recent years. New Jersey has been at the forefront of the bail reform movement, largely eliminating its cash bail system last year. District attorneys in Brooklyn and Manhattan in January ordered prosecutors not to request bail in most misdemeanor cases. And Philadelphia District Attorney Larry Krasner also fulfilled one of his high-profile campaign promises when he announced an end of cash bail requirements for low-level offenses in February.

My opinion? The movement to end cash bail seems to be gaining momentum. If so, it’d eliminate a significant hurdle in gaining justice for defendants facing criminal charges.

FBI Historical Cell Site Analysis

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In State v. Ramirez, the WA Court of Appeals held that cell site location testimony is widely accepted throughout the country, and it is not error under ER 702, to allow an FBI agent with sufficient training and experience to testify regarding historical cell site analysis.

BACKGROUND FACTS

Mr. Ramirez was charged with two counts of premeditated first degree murder and one count of unlawful possession of a firearm. All crimes occurred at Spokane County’s Broadway Square Apartments.

In addition to other pretrial motions, the defense also filed a motion to exclude a report and testimony from FBI Special Agent Jennifer Banks. The State named Special Agent Banks as an expert witness on historical cell site analysis. According to Banks’s report, records obtained from Mr. Ramirez’s cell phone provider placed him near the Broadway Square Apartments 10 minutes before the first 911 call was placed. The defense argued that Banks’s testimony should be struck based on late disclosure and because it failed to meet both the Frye standard for admissibility and the criteria for expert testimony under ER 702.

The parties argued the pending pretrial motions on the morning set for trial. Prior to jury selection, the trial court also held a Frye hearing to determine the admissibility of Special Agent Banks’s testimony. She testified that due to being a member of the FBI’s Cellular Analysis Survey Team (CAST), she received training in deciphering cell phone records.

Agent Banks also described two components to her work. First, she interprets historic call detail records from cellular telephone providers in order to discern the location of cell towers activated by a particular voice call or text message. Second, she performs field tests of geographic areas to determine the strength of various cell towers. These tests involve driving through a location with a scanning device which uploads cellular frequencies in a given area to a computer program and plots signal strengths on an area map. Agent Banks testified that CAST agents had testified in approximately 400 courts throughout the country and that the CAST methodology is more widely accepted in the law enforcement community than any other cellular location method.

Defense counsel argued that Agent Banks’s testimony should be struck because her expert report was untimely and because the FBI’s mapping software had not been validated. The State made clear that it would not object to a continuance if Mr. Ramirez wanted more time to evaluate Agent Banks’s report. However, Mr. Ramirez insisted on moving forward with trial as scheduled. The trial court ultimately permitted the State to go forward with Agent Banks’s testimony, finding that the substance of the testimony was not novel.

TRIAL

During her testimony, Agent Banks explained how her CAST analysis applied to Mr. Ramirez’s case. Agent Banks said Mr. Ramirez’s call detail records included not only a code for each cell site antenna activated by Mr. Ramirez’s phone calls and texts, but also the 120-degree angle that the antenna had been pointed at the time of connection. By plotting the call detail data onto a map, Agent Banks determined Mr. Ramirez’s cell phone was in the area of the Broadway Square Apartments at 9:24 p.m. on November 1, 2014. This was approximately 10 minutes before the first 911 calls.

In addition to interpreting the call detail records, Agent Banks explained the field test she performed in connection to Mr. Ramirez’s case. To perform the test, Special Agent Banks drove through Spokane Valley, collecting cell tower frequencies with an FBI scanner. The FBI’s scanning software was then able to generate a map, showing the coverage strength area for each of the cell towers activated by Mr. Ramirez’s cell phone. The maps developed from the drive-through process largely corroborated the information indicated from the maps developed solely from the call detail records.

The jury found Mr. Ramirez guilty as charged. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

Among other issues, Mr. Ramirez argued the trial court erred when it found Agent Banks’s cell site analysis admissible under Frye and ER 702. Mr. Ramirez complained that the software program used by the FBI is proprietary, and thus has not been subject to independent peer review. He also claimed Agent Banks’s testimony was unhelpful to the jury because the FBI cell site location methodology failed to account for imperfections in the cell transmission process, such as weather, obstructions, and network traffic.

The Court of Appeals discussed the Frye standard for determining the admissibility of novel scientific evidence. The standard has two parts. It asks (1) whether the underlying theory is generally accepted in the scientific community, and (2) whether there are techniques utilizing the theory that are capable of producing reliable results. Evidence not involving “new methods of proof or new scientific principles” is not subject to examination under Frye. The Court also reasoned that with respect to the Frye standard, cell site location testimony is not novel; and is widely accepted throughout the country:

“Historical cell-site analysis can show with sufficient reliability that a phone was in a general area, especially in a well-populated one. It also shows the cell sites with which the person’s cell phone connected, and the science is well understood.”

Furthermore, the Court reasoned that Agent Banks bolstered the reliability of her historical analysis by performing a drive-through analysis of the signal strength of the cell towers activated by Mr. Ramirez’s cell phone and evaluating the particular characteristics of the cell tower with which Mr. Ramirez’s phone connected, including its power and the direction its antennae were facing.

“The theories behind the drive-through test/cell tower strength testimony were sound,” reasoned the Court. It is not novel or uncommon to measure the strength of cell tower or radio frequencies. In addition, computer programs routinely generate maps that correspond to real-world data. “Concerns about the FBI’s software program did not present a reason for excluding Agent Banks’s testimony under Frye, said the Court.

Finally, the Court of Appeals decided the trial court also did not abuse its discretion in admitting Agent Banks’s testimony under ER 702. “It is undisputed that Agent Banks qualifies as an expert in historical cell site analysis,” said the Court. “Her testimony was also helpful to the jury.” The Court explained that Agent Banks did not overestimate the quality of her cell site analysis. Throughout her testimony, she made the jury aware of the imprecision of cell site location information. She cross tested the information obtained from the cell location records with information from her drive-through signal strength test. “Mr. Ramirez cannot identify any realistic risk that the jury would have been confused by the nature of this testimony. The evidence was therefore properly admitted.”

With that the Court of Appeals affirmed Mr. Ramirez’s judgment and sentence.

My opinion? Interesting decision. The admissibility of this evidence involves challenges which, in turn, involve very complex questions of physics, signal timing, reliability, etc. First, does the network reliably collect and report the underlying data, in particular the signal timing and power measurements? Second, is the enhanced historical cell sector analysis a reliable method to determine accurate location information for a target cell phone at a point in the past? A closely related third question is what scope of expertise required to establish the reliability of the data collected and the methods used to interpret that data.

Contact my office if you, a friend or family member are charged with a crime involving historical cell site analysis from a law enforcement officer.

Backpage.com & Privacy

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In In re Personal Restraint of Hopper, the WA Court of Appeals held that a defendant’s calls and text messages to the phone number listed in a Backpage.com advertisement were not private communications protected by the Washington Privacy Act.

BACKGROUND FACTS

In December 2012, Mr. Hopper searched Backpage.com with the intent of purchasing sex. Backpage operated an online classified advertising service, Its users created and posted their own ads, including ads in the adult category. This category included ads for prostitution activity, often under the guise of an adult escort or entertainment service. The ads often featured pictures of women identified by false names and ages, along with hourly rates.

Hopper saw an advertisement for a woman named “Whisper,” who he later learned was K.H. The ad stated that she was 19 years old. She was actually 16 years old. It listed a phone number that Hopper both called and contacted by text. When he contacted the number by text, he initially believed that he was communicating with K.H. But K.H.’s pimp, identified as Mr. Park, had listed his own number on the ad and was reading and responding to Hopper’s text messages.

In December 2012, police arrested Park and, with a warrant, searched his cell phone. K.H. told police that Hopper had paid to have sex with her and identified him from a photograph montage. The police located Hopper’s home address from the text messages stored on Park’s phone. The State charged Hopper with commercial sexual abuse of a minor. In March 2014, a jury convicted Hopper as charged.

Hopper appealed his conviction on arguments that his trial counsel gave ineffective
assistance by failing to move to suppress his text messages to K.H., which police found stored on Park’s cellular phone.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a privacy act violation occurs when “(1) a private communication transmitted by a device. . . was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication.” Hopper claims that his text messages to K.H. were “private communications” under the act because he intended them for her alone and they concerned illegal activity. Whether communications are private is a question of fact but may be decided as a question of law where, as here, the parties do not dispute the facts.

The Court of Appeals noted the Act does not define “private.” Instead, Washington courts have adopted the dictionary definition. Nevertheless, Washington courts will generally presume that each of the two parties participating in the conversation intends it to be private.

“Hopper’s subjective expectation of privacy was objectively unreasonable,” said the Court of Appeals. The Court explained that Hopper responded to an ad on Backpage.com, a website notorious for advertising prostitution activity. The ad was titled “any way you want it 19” and featured an unidentifiable woman with a fictitious name. A reasonable person would not expect that contacting a stranger by text through the phone number listed in this advertisement would provide a legitimate opportunity for a private conversation with a known person. Even Hopper admitted that “the picture wasn’t a good enough picture to clearly identify a specific person.”

“And regardless of whether Hopper was initially aware of K.H.’s pimp, it is common knowledge that prostitutes often have pimps. Thus, even though Hopper subjectively intended for his text messages to K.H. to be private, his communications were not private
because this expectation was unreasonable. Park did not violate the act when he recorded and stored Hopper’s messages to K.H. on his cell phone.”

The Court of Appeals concluded that because Hopper does not establish that these text messages were “private communications” under the act, he does not show that his counsel’s performance fell below an objectively reasonable standard of care. His claim failed. The Court of Appeals upheld Hopper’s conviction and found his attorney was not ineffective.

Contact my office if you, a friend or family member face criminal charges involving searches of cell phones. Depending on the circumstances, the evidence might be suppressible. And for more information on search warrants, please read my Legal Guide on Search & Seizure.