Category Archives: Pretrial Investigations

Author of Confidential Informants Book Exposes the Truth

 

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A new book discusses how confidential informants negatively impact the criminal justice system. In “11 Days a Snitch,” author Alexandra Natapoff discusses how removing confidential informants information from investigations bolsters law enforcement authority while reducing the ability of legislatures, the press and the public “to evaluate executive actors and hold them accountable.”

Natapoff, a professor at Loyola Law School in Los Angeles, is considered one of the nation’s leading experts in the use of confidential informants. She has testified before the U.S. House Judiciary Committee in 2007 and had a hand in writing legislation in Florida known as Rachel’s Law, which was enacted in the wake of a young drug informant’s death. Natapoff discuses the negative impacts that confidential informants have had upon the justice system:

  1. CONSTITUTIONAL RIGHTS ARE VIOLATED IN FAVOR OF KEEPING AN INFORMANT SECRET.

The Fourth Amendment protects against unlawful search and seizure. That means, generally, police need a warrant and a judge’s signature for permission to enter a house or listen in on a private conversation. A confidential informant wearing a wire, however, does not have to jump through those hoops (though some states have barred warrantless use of informants in this regard).

The Sixth Amendment guarantees defendants the right to confront any witnesses against them. With informant witnesses, however, judges have chipped away at this right, in some cases allowing prosecutors to keep informants’ identities a secret. In 2002, for example, the Ninth Circuit Court of Appeals tried to strike a balance by allowing a confidential informant to wear a “wig-and-mustache disguise” on the stand.

The Fourteenth Amendment guarantees defendants due process, which includes a right to know all the evidence the state has, including evidence that could discredit the state’s witnesses. For snitches, that evidence could include criminal history and any benefit (such as leniency for their own crimes or cash) they receive in exchange for cooperating with law enforcement. However, the U.S. Supreme Court ruled in 2002 that defendants are not entitled to that information before trial. Specifically, the court was concerned that revealing those details “could ‘disrupt ongoing investigations’ and expose prospective witnesses to serious harm.'”

Natapoff argues this is significant because about 95 percent of criminal cases end in plea deals. That means most defendants are pleading guilty without knowing if the evidence against them is completely legit.

2. THE WAR ON DRUGS IS DRIVING THE USE OF INFORMANTS.

In 1995, decades into the war on drugs, lawyer and journalist Mark Curriden published an in-depth look at law enforcement’s extensive use of informants by analyzing more than 1,000 federal search warrants from 1980 to 1993. In that time frame, warrants that solely relied on information from a confidential source increased by nearly 200 percent — from 24 percent to 71 percent.

Although it’s impossible to get an accurate number of informants in the U.S., a recent audit of the DEA’s CI program cited more than 18,000 active confidential sources from October 2010 to September 2015. However, that same report found that “the DEA did not appropriately track all confidential source activity.”

3. THE RISK FOR ABUSE IS HIGH.

Natapoff discusses the case of four NYPD cops, who for decades have apparently fabricated sworn statements and arrests with the help of fictitious informants. A State Supreme Court judge in Brooklyn called one of the detectives “extremely evasive,” and did not find him “to be credible.” A judge in another federal case remarked: “I believe these officers perjured themselves. In my view, there is a serious possibility that some evidence was fabricated by these officers.”

“Given the reality that informant deals are baked into the criminal justice system, we are obligated to better regulate it,” Natapoff says. “We have fallen down in that regard. We have given such broad discretion to police and prosecutors and failed to create transparency and accountability mechanisms that would give us the confidence that these deals are being made in responsible ways.”

My opinion?
Transparency is essential to a fair and equitable criminal justice system. Knowing how we handle criminal behavior and dole out punishment allows the public to hold law enforcement accountable. The use of confidential informants, however, can pervert that premise in many ways. As a criminal defense attorney, I’ve always believed the use of confidential informants entrap many into committing crimes they would otherwise not commit. Snitches are motivated/biased actors who are not professionally trained in law enforcement and have significant criminal histories. All of these facts decrease their credibility. Kudos to Natapoff for showing the truth.

Recorded Arguments & Privacy.

Image result for privacy and cell phones

In State v. Smith, the WA Court of Appeals Division II held that an accidentally recorded argument between the defendant and his wife was improperly admitted at trial and violated the Washington Privacy Act.

John and Sheryl were a married couple. On June 2, 2013, they were in their residence drinking. They became intoxicated and began to argue. John began to beat and strangle Sheryl, who lost consciousness due to the strangling. Sometime during the attack, John used the residence’s landline telephone to try to locate his cell phone. Unable to do so, he was unaware that his actions activated his cell phone’s voice mail function, which started recording part of the dispute. In that recording, John is heard yelling insults at Sheryl. Sheryl responded to these statements by screaming unintelligibly or asking him to stop or leave her alone. At one point during the recording, Sheryl tells John to “Get away,” to which he responds, “No way. I will kill you.”

Shortly after the voice mail was recorded, John left the residence. Sheryl called 911 and reported that John had beaten her. A police officer with the Vancouver Police Department arrived at the residence, and Sheryl was transported to the hospital. John’s cell phone was retrieved and taken by the police. John was later arrested and charged with first degree attempted murder (domestic violence), second degree attempted murder (domestic violence), first degree assault (domestic violence), and second degree assault (domestic violence). Before trial, John moved to suppress the cell phone voice mail recording based on RCW 9.73.030, which applies to intercepting, recording and/or the divulging of private communications under the WA Privacy Act. The trial court held a CrR 3.6 hearing and denied his motion.

At John’s bench trial, the recorded voice mail, 911 phone calls, and photographs of Sheryl’s injuries were admitted into evidence. The trial court found John guilty of second degree attempted murder and second degree assault, both with domestic violence enhancements.

John appealed on three issues: (1) whether the recorded voice mail’s contents are a conversation; (2) if the contents are a conversation, whether it was private; and (3) if a private conversation, whether it was recorded or intercepted.

For the following reasons, the Court held that John recorded a private conversation in violation of RCW 9.73.030.

1. DID A CONVERSATION TAKE PLACE?

Amidst screaming from Sheryl, the following communications took place:

John: “You think you’re bleeding?. . . . You’re the most fucked up person. Give me back the phone.”

Sheryl: “Get away.”

John: “No way. I will kill you.”

Sheryl: “I know.”

John: “Did you want to kill me? Give me back my phone.”

Sheryl: “No. Leave me alone.”

The Court reasoned that the contents of the recorded voice mail constituted a conversation. Although Sheryl’s screams alone would not constitute a conversation, these screams were responsive to statements that John was making to Sheryl and were scattered throughout the entire dispute, which contained repeated verbal exchanges between the two individuals as outlined above. Within this context, Sheryl’s screams serve as an expression of sentiments responsive to John’s yelling and thus constitute part of a conversation.

2. WAS THE CONVERSATION PRIVATE?

The Court held that the conversation was private. Here, a domestic dispute occurred between two married persons in the privacy of their home. It reasoned that the location of the conversation, the relationship between the parties, and the absence of third parties all declare the privacy of the conversation. Therefore, reasoned the Court, John had a “subjective intention and reasonable expectation that the conversation with Sheryl would be private.”

3. IF THE CONVERSATION WAS PRIVATE, WAS IT RECORDED OR INTERCEPTED?

The Court held that the WA Privacy Act was violated when John accidentally recorded a private conversation without Sheryl’s consent. It reasoned that the WA Privacy Act requires the consent of all parties to a private conversation. Further, the case law has implied that no third party is required to record a conversation. In other words, a party to a private conversation can also be the person who impermissibly records the conversation. Thus, reasoned the Court, John’s recording of this conversation can violate the privacy act, even though he accidentally made himself a party to it.

Based on the above, the Court reversed and remanded the second degree attempted murder conviction, but affirmed the second degree assault conviction.

My opinion? Although my sympathies go out to the victim, the Court’s decision was correct. Privacy is a mysterious subject matter in our ever-changing world. Cell phones and other devices allow us to record anything, any time, anywhere. The fact is, most of us don’t know even know we’re even being recorded in our daily lives. So you can imagine a scenario where accidental recordings become the subject for intense litigation.

Many clients ask me if recorded conversations between themselves and alleged victims/witnesses are admissible at trial. Clearly, the answer is “No” under the WA Privacy Act unless the participants are (1) aware that their conversation is being recorded, and (2) expressly consent to the recording. Interesting stuff. This case was a good decision upholding our privacy rights in the face of today’s technological advancements.

A “Missing Witness” Argument Cuts Both Ways.

Image result for when you point the finger, you have three pointing back

Fair warning folks, this is a post only trial attorneys can appreciate . . .

In State v. Goss, the WA Supreme Court held a defendant was properly barred from arguing that the jury could draw a negative inference from the fact the State had not offered a recording of a detective’s interview with the defendant.

Mr. Goss was charged with Goss was initially charged with one count of Child Molestation Second Degree on accusations that he sexually assaulted his former fiance’s granddaughter. Later, a charge of Attempted Child Molestation Third Degree was added.

The police interviewed Mr. Goss when the accusations first arose. The interview was recorded at the police station, and lasted 50 minutes.

Before trial, Goss moved to redact portions of the recorded interview relating to (1) pornography Goss’s home computer and (2) prior allegations of child molestation made against him. The State indicated that it did not plan to play the recording in its case in chief. The trial judge reserved ruling until and unless the recording was offered. Neither side moved to admit the recording during trial.

At closing argument, Goss was barred from arguing that the State failed to produce the video.

Goss was found guilty of the charges. He appealed. Among other arguments, he said the Prosecutor’s failure to admit the interview at trial was analogous to a party not offering an available witness. This is also called the “Missing Witness Doctrine, which is well-described in State v. Blair. ” Under the “missing witness” or “empty chair” doctrine it is a well-established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, he fails to do so, the jury may draw an inference that it would be unfavorable to him.

However, the WA Supreme Court rejected these arguments. It pointed out that Goss himself moved to redact portions of the recorded interview relating to prior allegations of child molestation made against Goss by his daughter. The Court also reasoned The detective who questioned Goss on the tape testified at trial. Consequently, Goss could have cross-examined the Officer on the witness and possibly got the recorded interview admitted, redacted or otherwise.  Coincidentally, ruled the Court, “Nothing in this record suggests the State’s decision not to play the tape was nefarious. Goss has not shown the trial court abused its discretion because the tape was analogous to a missing witness. ”

My opinion? It’s difficult to say the WA Supremes decided this wrong. I’ve won jury trials where the Prosecution has pointed the finger at Defense for failing to produce “missing witnesses.” Usually, these attacks from the State are rejected by courts because the State – and not the defense – carries the burden of proof. Asking the defendant to come up with more witnesses is a sly (and unlawful) way of shifting the burden to the defense.

The “Missing Witness” doctrine is rather funny in that it points the finger right back at the attorney who claims the other side failed to produce the “magic witness.”

WPIC 5.20 discusses the limited use of the “Missing Witness” defense/offense tactic. Basically, if a person who could have been a witness at the trial is not called to testify, jurors may be able to infer that the person’s testimony would have been unfavorable to a party in the case. Jurors may draw this inference only if they find that:

(1) The witness is within the control of, or peculiarly available to, that party;

(2) The issue on which the person could have testified is an issue of fundamental importance, rather than one that is trivial or insignificant;
(3) As a matter of reasonable probability, it appears naturally in the interest of that party to call the person as a witness;
(4) There is no satisfactory explanation of why the party did not call the person as a witness; and
(5) The inference is reasonable in light of all the circumstances.

The tactic is to be used sparingly, and with good reason: it points the finger right back at the accusing party! Here, that’s exactly what the WA Supreme Court decided.

Prosecutors Must Reveal Toxicologist Identities in DUI Trials.

In State v. Salgado-Mendoza, the WA Court of Appeals Division II reversed a defendant’s DUI conviction because the Prosecutor failed to give Defense Counsel the name of their Toxicologist expert witness before trial.

On the evening of August 11, 2012, a Washington State Patrol trooper observed Mr. Salgado-Mendoza driving his vehicle and struggling to stay in his lane of travel. The trooper stopped the vehicle. Salgado-Mendoza was investigated and arrested for DUI. His BAC test showed a blood alcohol concentration of 0.103 and 0.104; which is over the .o8 limit.

Several months before his trial date on the DUI charge, Salgado-Mendoza requested that the Prosecutor disclose information about any and all expert witnesses the Prosecutor intended to call at trial. This regularly happens when defense attorneys argue motions to compel. The Prosecutor attempted to contact the toxicology lab by phone to narrow the list of possible toxicology witnesses, but was unsuccessful.

Three days before trial, Salgado-Mendoza filed a motion requesting that the court dismiss the case or exclude the toxicologist’s evidence based on governmental misconduct.

On the afternoon before trial, the State received a list of three toxicologists, one of whom might testify the next day. The State provided this list to Salgado-Mendoza.

When the parties appeared for trial on May 9, Salgado-Mendoza re-argued his motion to exclude the toxicologist’s testimony or to dismiss the DUI charge because the State had still not disclosed which toxicologist would testify. The Court denied the motion. Salgado-Mendoza was found guilty at trial.

Salgado-Mendoza appealed his conviction to the superior court. Finding that the district court had abused its discretion by (1) not excluding the toxicologist’s testimony due to the State’s violation of the discovery rules and mismanagement of the case in failing to disclose its witness prior to trial, and (2) excluding the defense expert’s testimony about the breath-alcohol testing machine, the superior court reversed the DUI conviction and remanded the matter for a new trial. The State appealed to the WA Court of Appeals.

Ultimately, the WA Court of Appeals held that the Prosecutor violated the discovery rules under CrRLJ 4.7(d) by failing to take reasonable steps to obtain the name of its witness in a timely manner. It reasoned that the Prosecutor had an obligation to attempt to acquire and then disclose that information from the toxicology lab. Consequently, the Prosecutor’s failure to provide the defense with a specific witness’s name before trial is not reasonable. This, in turn, amounted to governmental misconduct under CrRLJ 8.3(b).

Furthermore, the Court held that Prosecutor’s misconduct was prejudicial and that the exclusion of the toxicologist’s testimony was the proper remedy. The Court emphasized this remedy was necessary because the issue was an issue of public importance:

“On retrial, the State should ensure that it provides the name and address of the person or persons it intends to call at trial or comply with CrRLJ 4.7(d) when preparing for the new trial.”

My opinion? Good decision. It is extremely difficult to provide a competent and adequate defense when Prosecutors do not follow the rules of discovery.

For those who don’t know, a Prosecutor must follow many procedures when trying cases. The following procedures expedite a fair trial and protect the constitutional rights of the defendant: (i) promote a fair and expeditious disposition of the charges, whether by diversion, plea, or trial; (ii) provide the defendant with sufficient information to make an informed plea; (iii) permit thorough preparation for trial and minimize surprise at trial; (iv) reduce interruptions and complications during trial and avoid unnecessary and repetitious trials by identifying and resolving prior to trial any procedural, collateral, or constitutional issues; (v) minimize the procedural and substantive inequities among similarly situated defendants; (vi) effect economies in time, money, judicial resources, and professional skills by minimizing paperwork, avoiding repetitious assertions of issues, and reducing the number of separate hearing; and (vii) minimize the burden upon victims and witnesses.

Here, knowing the names of the Prosecutor’s witnesses before trial is simply fair. Period.

Stingray “Spy” Devices

This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. (AP Photo/U.S. Patent and Trademark Office)

Intimidating, no?

This suitcase-sized device, called Hailstorm or Stingray, is a controversial cellular phone surveillance device manufactured by the Harris Corporation. It is designed to sweep up basic cellphone data from a neighborhood and identify unique subscriber numbers. That data is then transmitted to the police, allowing them to locate a phone without the user even making a call or sending a text message. It’s the newest, most advanced technology in spyware which essentially allows police to observe, record and otherwise pinpoint your cell phone activity. And, of course, a growing number of police departments are purchasing these devices.

Stingrays cost as much as $400,000 and acts as a fake cell tower. The system, typically installed in a vehicle so it can be moved into any neighborhood, tricks all nearby phones into connecting to it and feeding data to police. In some states, the devices are available to any local police department via state surveillance units. The federal government funds most of the purchases, via anti-terror grants.

These devices are used to spy on people’s words, locations and associations. Stingrays can capture everything from metadata (who called whom, when, and sometimes from where) to the content of calls.

A news article from USA Today titled, Cellphone Data Spying: It’s Not Just the NSA describes how numerous police agencies across the country refuse to admit whether they’ve used Stingrays in surveillance. According to the article, most police agencies deny public records requests, arguing that criminals or terrorists could use the information to thwart important crime-fighting and surveillance techniques. Police maintain that cellphone data can help solve crimes, track fugitives or abducted children or even foil a terror attack.

The American Civil Liberties Union (ACLU) has investigated the use of Stingrays and has also successfully identified 54 agencies in 21 states and the District of Columbia that own Stingrays. Many agencies continue to shroud their purchase and use of Stingrays in secrecy.

A growing number of courts and legal authorities are increasingly wary on whether Stingrays violate citizen’s rights against unlawful search under the Fourth Amendment to the U.S. Constitution. For example,  in FROM SMARTPHONES TO STINGRAYS: CAN THE FOURTH AMENDMENT KEEP UP WITH THE TWENTY-FIRST CENTURY? attorney Brittany Hampton wrote a Note in the University of Louisville Law Review which discussed the questionable use of the Stingray devices by police agencies.

In her article, Ms. Hampton argues that individuals have a reasonable expectation of privacy in their movements when using their cellphones; therefore, the use of the Stingray constitutes a search within the meaning of the Fourth Amendment. She also discusses the need for the United States Supreme Court to develop a clear warrant requirement for the monitoring of an individual using the Stingray device. Ultimately, Hampton advocates a warrant requirement for utilizing the Stingray devices for police tracking purposes because the warrantless use of the Stingray is an unreasonable search under the Fourth Amendment.

My opinion? I wholeheartedly agree with Ms. Hampton, the ACLU and other legal experts on this issues. Using Stingrays is an unlawful search. Quite frankly, the government should not have carte blanche secret access to people’s cell phone use and information. It’s overly intrusive and distasteful that the government can, without warning, essentially use people’s cell data as pretextual evidence to investigate our whereabouts, listen to our conversations and ultimately charge us with crimes.

Even worse – and speaking as a criminal defense attorney – it’s disturbing that police agencies can use the information obtained from Stingrays as probable cause to obtain search warrants of people’s homes and seize evidence therein. Moreover, if I move to suppress the evidence gained from the search warrant as the fruits of an unlawful search, local police agencies deny and circumvent my Motions to Compel Evidence and Public Disclosure Requests by simply having the feds conduct the Stingray search. This is bad.

Stay tuned . . .

 

State v. Strange: Was the Jury “Tainted” or Impartial?

In State v. Strange, the WA Court of Appeals Division II decided the defendant’s right to a fair and impartial jury was not violated by a prospective jurors’ statements concerning their own prior experiences with child molestation.

Here, defendant George Strange was accused of Child Molestation Second Degree and Voyeurism. from 2011 to 2013, Strange lived with his wife and his wife’ s children, who are juveniles. Here, juvenile J.M. was 12 years old when Strange allegedly fondled her breasts one night. He explained he was giving her a breast examination.

During jury selection, the court and attorneys asked the prospective jurors about their personal experiences with child molestation. Although most of the jurors had no personal experience with child molestation, almost one-third of the jurors knew someone who was either a victim or had been charged with child molestation. In response to the court’ s questioning, juror no. 54 stated,

JUROR: “Um — what I said before, like, I know people that I know. Like it’ s not an easy accusation to make. Like, it is hard for people (inaudible). It’ s like if accusations were made there’ s something behind that . . . I don’ t — like, I don’t have a ton of experience but it has just been my experience people don’ t make that accusation, you know, for no reason. Like, I feel like if an accusation was made there had to be something that had happened.”

Juror no. 54 was excused for unrelated hardship reasons.

During trial, other witnesses testified to Strange’s odd behavior around J.M. Additionally, the State played a recorded video of Strange being interviewed by a police detective who commented on Strange’s behavior during the interview. Finally, Strange did not call any witnesses nor did he testify. At the end of trial, Strange was found guilty on all counts.

On appeal, Strange argued that his right to a fair trial by an impartial jury was violated because of prospective jurors’ statements concerning their own prior experiences with child molestation, either in their families or among friends or acquaintances, which tainted the entire jury venire.

The court rejected Strange’s arguments. It reasoned that article I, § 22 of the Washington Constitution guarantees a criminal defendant the right to a fair trial by unbiased jurors.” Also, the Sixth Amendment to the United States Constitution also guarantees the right to a fair trial by impartial jurors. Here, no prospective juror professed any expertise about sexual abuse cases. Therefore, there is no concern about a prospective juror with more credible, authoritative knowledge tainting the rest of the jury pool.

Second, most jurors were merely questioned about their experiences with child molestation and asked if they could remain impartial. Some jurors admitted to a potential bias, most said they could apply the court’ s instructions impartially, and two prospective jurors asked for individual voir dire, preferring not to talk about their experiences in front of the rest of the jury pool. Consequently, the Court of Appeals decided that Strange received a fair trial by an impartial jury.

Finally, the court rejected Strange’s argument that his defense attorney was ineffective because he failed to object to the admission of Strange’s recorded interview with police. The court reasoned that because defense counsel’s failure to object was a legitimate trial tactic, it cannot be said that Strange’ s trial counsel’ s performance was deficient. Therefore, his claim for ineffective assistance of counsel fails. The decision of Strange’s attorney to not play the video was a legitimate trial tactic, and did not amount to ineffective assistance of counsel.

My opinion? Oftentimes, during jury selection, prospective jurors say things out loud which may appear to discredit the defendant, especially when the charges are particularly galvanizing. A defense attorney must be cautious in proceeding with these jurors. A good technique is to ask the juror to extrapolate “what they mean” if the juror says they have difficulty being objective, and/or if the juror says the defendant “must be guilty of something.” The attorney can strike the juror for cause because the juror could be biased against the defendant.

Still, it’s difficult to “unring the bell,” so to speak, when a prospective juror says controversial things which may hurt the defendant’s chances at trial if the rest of the jury pool believes that juror’s statements. This is the essence of “tainting the jury,” which is reversible error and should be avoided at all costs. In response, another good tactic is to inquire if other potential jurors feel the same as the juror who aired their grievances. Find someone shaking their head “No.” Ask them why. Chances are, they’ll say something about giving the defendant a fair trial, or presumption of innocence, or something like that. Test the waters. Guide the jurors back toward their oath that they MUST presume the defendant not guilty throughout trial. Remind them that if they serve as jurors, they’re under oath to withhold their personal biases and reserve judgment until after hearing all of the evidence.

State v. Hardtke: Court Limits Costs of Pretrial Monitoring

In State v. Hardtke, the WA Supreme Court decided that although a trial court has the authority under RCW 10.01.160 and CrR 3.2 to impose the cost of pretrial electronic alcohol monitoring, the amount is capped at $150.00.

Here, Mr. Hardtke was charged with two counts of Rape in the Second Degree, one count of Assault Second Degree, two counts of Assault Fourth Degree, and Malicious Mischief Third Degree. All were alleged to be acts of domestic violence that took place while Hardtke claimed he was blacked out from alcohol abuse.

At arraignment, the trial court imposed conditions that Hardtke not consume alcohol. To ensure his compliance with this condition, Hardtke was required to wear a transdermal alcohol detection (TAD) electronic alcohol monitoring bracelet while awaiting trial. Hardtke objected multiple times to paying for the cost of the bracelet, but he nevertheless wore the bracelet as a condition of his release.

Eventually, Hardtke pleaded guilty to amended charges, and as part of his sentence he was ordered to reimburse the county for the cost of the alcohol monitoring; which totalled $3,972.00. Hardtke objected and appealed the court’s ruling. The case ended up in the WA Supreme Court.

In reaching its decision, the WA Supreme Court reasoned that RCW 10.01.160 authorizes courts to impose “pretrial supervision” costs on both convicted and nonconvicted defendants; however, it expressly limits pretrial supervision costs to $150. The court further reasoned that paying the costs was unreasonable:

Hardtke himself did not arrange for the TAD monitoring and did not agree to pay a third-party company for the service. On the record before us, the sentencing court imposed a cost on Hardtke for pretrial electronic alcohol monitoring in order ensure compliance with the release condition that he not consume alcohol. We find no support for the State’s argument under CrR 3.2.

The court further reasoned that TAD monitoring falls under the plain meaning of “pretrial supervision.” This includes work release, day monitoring, or electronic monitoring. The court emphasized that TAD monitoring operates like other monitoring devices, such as GPS (global positioning system) monitoring. It ensures compliance with the pretrial release conditions by supervising Hardtke’s conduct and reporting his blood alcohol levels. This monitoring, the court said, is functionally analogous to requiring a defendant awaiting trial to physically check in with the court or county probation officer to demonstrate that pretrial release conditions have been complied with.

The court concluded that RCW 10.01.160 limits the court’s authority to impose costs for pretrial supervision to $150. “Because we hold that the TAD monitoring costs imposed on Hardtke were for pretrial supervision, and because those costs were greater than $150, the trial court exceeded its statutory authority by imposing nearly $4,000 for Hardtke’s pretrial supervision.” The Court remanded Hardtke’s case back to the trial court with instructions that costs for pretrial supervision in this matter not exceed $150.00.

My opinion? Good decision. Defendants should not pay an arm and a leg simply to be monitored by courts, ESPECIALLY if there’s statutory authority stating that pretrial supervision shall not exceed $150. Getting access to justice is difficult enough. Good, straightforward opinion.

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.

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.

State v. Finch: Can Defendants Force Victims to Get Polygraph Tests?

The WA Supreme Court ruled that a rape victim’s polygraph test is inadmissible at trial.

http://www.courts.wa.gov/opinions/pdf/D2%2044637-5-II%20%20Published%20Opinion.pdf

In State v. Finch, the defendant was accused of raping a juvenile. Defense counsel obtained a court order commanding the alleged victim to obtain a polygraph test. The polygraph questions centered around what exactly happened on the day of the alleged rape incident.

The WA Supreme Court held that the trial court wrongfully granted the Defendant’s request to order the victim to take a polygraph test. The court reasoned there is no factual basis under CrR 4.7 – basically, the discovery rule – making it reasonably likely that the disputed polygraph test results would provide information material to the defense.

The Court based its decision on three grounds. First, polygraph tests are inadmissible at trial unless all parties agree. Here, the State did not want to stipulate to admitting the victim’s polygraph. Second, the State would not dismiss the charges against the defendant even if the victim failed the polygraph because there would be a “disputed iss ue of material fact” regarding the polygraph’s reliability (CrR 8.3). Third, the polygraph test results would only provide the defendant with highly unreliable information.

The Court concluded that the negative emotions that accompany being a sex crime victim, such as stress, anxiety, and fear, can further compromise the reliability of an already unreliable polygraph test by distorting the results and creating false positives.

My opinion? Good decision. The biggest problem with polygraph tests is that there are no known physiological responses that directly correspond with deception. An examinees physiological responses is often governed by whether the examinee believes the test is accurate, and from the atmosphere created by the examiner. Furthermore, external stimuli may cause a change in physiological responses, such as a surprising question or a noise outside the room. Likewise, stress, anxiety and fear – all controlled by the autonomic nervous system – cause changes in the physiological responses of an examinee.

Good decision.