Category Archives: Uncategorized

Jail Calls Make Revenue

Image result for video chat jail inmates

Wonderful article by Brian Alexander of The Atlantic claims that private companies have much to gain from installing and maintaining video technology connecting inmates with visitors.

VIDEO CHAT TECHNOLOGY

Over the past decade, many prisons  have outsourced video chat the systems to private corporations, often as part of a package that includes phone services. As of 2014, according to a report by the nonprofit Prison Policy Initiative, over 500 jails and prisons in 43 states had adopted video visitation.

An unknown number of those 500-plus facilities have also adopted “remote” video visitation, something akin to Skype, in which a “visitor” can communicate with an inmate via a computer, from any location. Unlike the in-facility video visitation systems, these remote setups come with charges of up to a dollar per minute, not counting account-deposit fees and set-up charges—expenses that can be quite burdensome for the often-poor families of inmates.

Despite the expense, however, the benefits cannot be ignored. Many visitors may conclude that driving to the jail is a waste of time and gas, and opt to pay. And jailers argue that video visitation has obvious security advantages and improves staff efficiency, as deputies don’t have to remove a prisoner from a housing unit or check visitors in.

Additionally, the revenues cannot be ignored either. Video chat systems make jailers—whether local governments or private corporations—the de-facto business partners of the companies, while enriching private-equity firms (which own many video-visitation providers) and their investors. “Video visitation is a link in the whole system that sees inmates as a revenue opportunity,” says Daniel Hatcher, a law professor at the University of Baltimore and the author of The Poverty Industry: The Exploitation of America’s Most Vulnerable Citizens. “It’s part of a larger system that sees the broader vulnerable family as a revenue opportunity, too.”

Image result for video chat jail inmates expensive costs

A LUCRATIVE BUSINESS
Reporter Brian Alexander says that inmate-communication services have proven to be a very lucrative business, and expensive phone charges borne by the families of prisoners have stoked controversy for years. In response, the Federal Communications Commission (FCC) capped per-minute rates in 2015. Prison-telecom companies sued. President Trump’s appointee to head the FCC, Ajit Pai, dropped the FCC’s defense of the rate-cap rules, and, in June, a court struck them down. Even so, the phone charges became a scandal and some in Congress vowed to take action. Administrators began to feel queasy about the rates. 
The procedural hurdles and the outright bans on in-person visitation seem designed to nudge visitors to stay home and visit remotely. This not only benefits providers, but jails, prisons, and local jurisdictions too, which can use income from company commissions or profit-sharing to benefit the facility, a county’s general fund, or some other local cause. For example, the Prison Policy Initiative uncovered a contract between Securus and Maricopa County, Arizona, that provided for a 10 percent commission to the county of gross monthly revenues, but only if the number of paid video visits reached at least 8,000 for that month. If Securus grossed $2.6 million or more, the county’s percentage rose to 20 percent.

VIDEO VISITATION NO REPLACEMENT FOR IN-PERSON VISITS.

Alexander emphasizes that video visitation is no replacement for in-person visits. As an oft-cited Minnesota Department of Corrections study from 2011 showed, “prison visitation can significantly improve the transition offenders make from the institution to the community. Any visit reduced the risk of recidivism by 13 percent for felony reconvictions and 25 percent for technical violation revocations.” Also, a report by the National Institute of Corrections (part of the U.S. Department of Justice) similarly concluded that video visitation “cannot replicate seeing someone in-person, and it is critical for a young child to visit his or her incarcerated parent in person to establish a secure attachment.”

INVESTORS ARE PIQUED

Meanwhile, because the largest inmate telecom-and-video providers generate a healthy flow of cash, they’ve attracted the interest of private equity, or PE. The fees that flow upward from prisoners and their families find their way to these firms and their investors. In 2013, for example, Global Tel Link, another major inmate phone-and-video provider, borrowed $885 million to fund dividend recapitalizations at the behest of its PE sponsor, American Securities; that debt would be paid back with the proceeds from inmate calls and video visitations.

VIDEO CHAT: GOOD OR BAD?

Alexander says that even a critic like Hatcher, the author and law professor, believes that video visitation has the potential for good. Such a service can complement in-person visits. It could allow an inmate to see a child’s school performance. It could substitute for an in-person visit when weather makes travel to a jail or prison hazardous. But Hatcher fears that it’s being used to restrict contact and drain money from people who are often already poor.

Alcohol Abuse On The Rise

Image result for binge drinking
Excellent article by John Tozzi of Bloomberg claims that Americans are drinking more than they used to, a troubling trend with potentially dire implications for the country’s future health-care costs.

The number of adults who binge drink at least once a week could be as high as 30 million, greater than the population of every state save California, according to a study published on Wednesday in JAMA Psychiatry. A similar number reported alcohol abuse or dependency.

Between the genders, women showed the larger increase in alcohol abuse, according to the report.

“This should be a big wake-up call,” said David Jernigan, director of the Center on Alcohol Marketing and Youth at the Johns Hopkins Bloomberg School of Public Health, who wasn’t involved with the research. “Alcohol is our number one drug problem, and it’s not just a problem among kids.”

Tozzi reports that while underage drinking has declined in recent years, adult consumption increased across all demographics. The jump was also especially large for older Americans, minorities and people with lower levels of education and income.

The rise is “startling,” said Bridget Grant, a researcher at the National Institute on Alcohol Abuse and Alcoholism and lead author of the paper. “We haven’t seen these increases for three or four decades.”

The share of adults who reported any alcohol use, high-risk drinking or alcohol dependence or abuse increased significantly between when surveys were conducted in 2001-02 and in follow-up surveys during 2012-2013. Researchers personally interviewed tens of thousands of people with similar questions, offering a robust, nationally representative look at how American drinking habits have evolved in the 21st century.

About 12.6 percent of adults reported risky drinking during the previous year in 2012-13, compared with 9.7 percent in 2001-02. Behavior was considered high-risk if people surpassed the government’s guidelines for excessive alcohol intake, set at four drinks in one day for women and five drinks for men, at least once a week.

That 3 percentage point increase may not seem like a huge jump, but given an adult U.S. population of about 250 million, it represents roughly 7 million more people binge drinking at least once a week.

The increase in alcohol abuse or dependence was even greater: Some 12.7 percent of respondents reported such behavior in the 2012-13 period, compared with 8.5 percent in 2001-02. That percentage increase is roughly equivalent to 10.5 million people at the current population. The surveys assessed abuse or dependence using standard diagnostic criteria (PDF), with questions such as whether people had difficulty cutting down on drinking, or if they continued drinking even when it caused trouble with family and friends.

There’s no single explanation for the increase. Researchers point to economic stress in the aftermath of the Great Recession; more easily available alcohol at restaurants and retailers; and the diminished impact of alcohol taxes. As a percentage of average income, alcohol is cheaper today than at any point since at least 1950.

Pervasive marketing by the alcohol industry and new products such as flavored vodkas or hard lemonade and iced tea may also be driving some of the increases among women and other demographics, said Jernigan.

The consequences for health care, well-being and mortality are severe. Excess drinking caused on average more than 88,000 deaths in the U.S. each year from 2006 to 2010, the Centers for Disease Control estimates—more than twice the number of deaths from prescription opioids and heroin last year. The total includes drunk-driving deaths and alcohol-linked violence, as well as liver disease, strokes and other medical conditions. The CDC says drinking too much is responsible for one in 10 deaths among working-age Americans.

The estimated cost of excess alcohol consumption is almost $250 billion a year in the U.S.

“We pay for all of it,” said Jürgen Rehm, senior director of the Institute for Mental Health Policy Research at the Centre for Addiction and Mental Health in Toronto. The costs show up in higher health-care needs, lost productivity and prosecuting alcohol-fueled crimes, from drunk driving to homicide.

Rehm said alcohol doesn’t command the attention of policymakers the way tobacco, illicit drugs or prescription opioids have. “The response of society should be commensurate to the level of the problem,” he said. Yet there is no national strategy in the U.S. that matches recent, high-profile efforts to combat opioids, smoking or illegal drugs. “Alcohol,” Rehm said, “we just tend to overlook.”

My opinion? Alcohol is a factor in roughly 70% – 80% of my cases. DUI crimes are most commonly associated with alcohol use, but it doesn’t stop there. Assault, domestic violence and sex offenses also overwhelmingly involve alcohol in some way, shape or form. And although voluntary intoxication is a valid defense in some cases, juries and judges tend to be pessimistic of its viability. This is because previous research finds that Americans tend to consider excess drinking a character flaw rather than a medical problem.

Fortunately, in some cases Prosecutors can be persuaded to give some leeway to those who obtain alcohol evaluations and undergo treatment. These actions show the defendant is taking accounability for the alleged crimes they committed while under the influence of alcohol, and that the incident may have been isolated to those particular circumstances.

If you have received a DUI or any other crime involving alcohol use/abuse, you should contact an experienced attorney who can help you through the various requirements from the courts, prosecutors, judges, probation and the Department of Motor Vehicles. You should have a alcohol evaluation done promptly, and have your attorney prep your thoroughly before hand.

Marijuana and Violent Crime

Image result for marijuana and violent crime

The Federal Bureau of Investigation reports violent crime rate in Washington has declined since voters here legalized recreational marijuana use in November 2012. The FBI numbers are based on crimes reported to law enforcement agencies.

2010: 313.5 offenses per 100,000 city inhabitants

2011: 294.6 offenses per 100,000 city inhabitants

2012: 295.6 offenses per 100,000 city inhabitants

2013: 289.1 offenses per 100,000 city inhabitants

2014: 285.8 offenses per 100,000 city inhabitants

2015: 284.4 offenses per 100,000 city inhabitants

The state’s rate of violent crime in 2015, the most recent year of data available, also was substantially lower than the national average, according to the FBI. Nationally, the estimated rate of violent crime was 372.6 per 100,000 inhabitants in 2015.

Public Records & Inmates

Related image

In Department of Corrections v. McKee, the WA Court of Appeals held that state law prevents jail inmates from making prolific records requests for the purpose of suing the agency and profiting financially.

BACKGROUND FACTS

Jeffrey McKee is an inmate in the custody of the Washington State Department of Corrections (the Department). Since 2006, he submitted at least 336 requests to the Department under the Public Records Act (PRA). The Department filed a lawsuit against McKee and sought a preliminary injunction to stop Mr. McKee from filing further requests. It argued RCW 42.56.565(2)(c)(i) applies when an inmate makes prolific records requests for the purpose of suing the agency and profiting financially.

The trial court disagreed and interpreted the statute as being limited to situations in which inmates seek the private information of agency employees to harass those employees. The trial court therefore generally denied the Department’s request for an injunction.

After the trial court entered its order, the Department filed a motion in the Court of Appeals
for discretionary review.

ISSUE

On appeal the issue was whether Mr. McKee’s requests were made to harass or intimidate the agency or its employees.

COURT’S ANALYSIS & CONCLUSIONS

Given the plain language of the statute, the Court of Appeals held that an inmate’s requests for public records may be prohibited if the request or requests are burdensome and made for financial gain.

The Court of Appeals reasoned that the PRA is a “strongly worded mandate for broad disclosure of public records.” It requires all state and local agencies to make any public record available for public “inspection and copying” on request, unless the record falls within certain specific exemptions.  The policy behind this law is that “free and open examination of public records is in the public interest.” To promote this policy, the PRA is to
be “liberally construed and its exemptions narrowly construed.”

However, the Court also acknowledged that in 2009, the legislature enacted RCW 42.56.565 to address abusive requests for public records by inmates. This statute authorizes courts to prohibit the “inspection or copying of any nonexempt public record by persons serving criminal sentences in state, local, or privately operated correctional facilities” if the court finds that one of following four situations applies:  (1) The request was made to harass or intimidate the agency or its employees; (2) Fulfilling the request would likely threaten the security of correctional facilities; (3) Fulfilling the request would likely threaten the safety or security of staff, inmates, family members of staff, family members of other inmates, or any other person; or (4) Fulfilling the request may assist criminal activity.

The statute then gives a nonexhaustive list of factors a court may consider in deciding whether to enjoin an inmate’s past or future records requests under RCW 42.56.565(3). These factors include: (1) other requests by the requestor, (2) the type of records sought, (3) statements offered by the requestor concerning the purpose for the request, (4) whether disclosure of the requested records would likely harm any person or vital government interest, (5) whether the request seeks a significant and burdensome number of documents, (6) the impact of disclosure on correctional facility security and order, the safety or security of correctional facility staff, inmates, or others, and (7) the deterrence of criminal activity.

The Court further reasoned that when an inmate files prolific records requests and sues an agency, the statute ensures the agency will not have to pay penalties in the event it makes a good faith error in responding. However, even if the agency is not required to pay penalties, it is still obligated to respond to future requests.

“This is still burdensome and expensive, even if the agency does not have to pay penalties,” said the Court of Appeals. Consequently, the Court reasoned that in order to alleviate these burdens and expenses, the statute allows the agency to stop the inmate from making future requests, just like the Department did here.

With that, the Court of Appeals reversed the trial court’s ruling on behalf of Mr. McKee.

Race-Based Jury Selection

Related image

In City of Seattle v. Erickson, the WA Supreme Court held that the Prosecutor’s peremptory strike of a minority juror was a prima facie showing of racial discrimination requiring a full analysis under Batson v. Kentucky.

BACKGROUND FACTS

In 2013, Matthew Erickson, a black man, was charged in Seattle Municipal Court with Unlawful Use of a Weapon and Resisting Arrest. After voir dire, the City of Seattle (City) exercised a peremptory challenge against tjuror #5, who was the only black juror on the jury panel. After the jury was empaneled and excused from the courthouse with the rest of the venire, Erickson objected to the peremptory challenge, claiming the strike was racially motivated. The court found that there was no prima facie showing of racial discrimination and overruled Erickson’s objection.

Erickson was convicted on both counts.

Erickson appealed the municipal court’s decision to King County Superior Court. The superior court affirmed the municipal court, finding that the circumstances surrounding the challenge did not raise any inference that the juror was stricken because of his race. The judge did not address whether Erickson’s motion was timely.

ISSUES

The WA Supreme Court granted review of Erickson’s appeal on the following issues:

1. Did Erickson waive his right to a Batson challenge when he objected after the jury was empaneled and both the jury and venire excused?

2. Did the trial court error in finding that Erickson did not make a prima facie showing of racial discrimination when the City struck juror #5?

BATSON V. KENTUCKY: THE LEGAL BACKGROUND ON RACE-BASED PEREMPTORY STRIKES

For those who don’t know, in Batson v. Kentucky, the United States Supreme Court created a 3-step process for enforcing the constitutional rule against excluding a potential juror based on race. First, the defense must show that the circumstances at trial raise an inference of discrimination. Second, the prosecutor must give a nonracial reason for the strike. Third, the court decides if the prosecutor intentionally discriminated against the juror because of race. The decision was made to stop the unfair practice of race-based peremptory strikes of qualified minority jurors because at that time, prosecutors could easily mask their efforts to exclude racial minorities from jury service.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court ruled that Erickson did not waive His Right to a Batson challenge when he objected to the striking of a juror after the jury was empaneled but before testimony was heard. It reasoned that a number of federal courts also allow Batson challenges after the jury has been sworn. Read together, the case law has adopted rules requiring that a Batson challenge be brought at the earliest reasonable time while the trial court still has the ability to remedy the wrong.

“These cases recognize that judges and parties do not have instantaneous reaction time, and so have given both trial courts and litigants some lenience to bring Batson challenges after the jury was been sworn,” said the Court. “This is in line with our own jurisprudence.”

The Court further stated that objections should generally be brought when the trial court has the ability to remedy the error, and allowing some challenges after the swearing in of the jury does not offend that ability.

“Although the timing was not ideal, the Batson challenge was raised when the trial court still had an opportunity to correct it,” said the Court. “So even though Erickson brought his Batson challenge after the jury was empaneled, the trial court still had adequate ability to remedy any error. Therefore, Erickson made a timely Batson challenge.”

Second, the WA Supreme Court Court ruled that the trial court did, in fact, error in finding that Erickson did not make a prima facie showing of racial discrimination when the Prosecutor struck juror #5.

Here, and in bold strokes, the Court changed how Batson is applied in Washington so that striking a juror who is the only member of a cognizable racial group automatically triggers a full Batson analysis by the trial court:

“The evil of racial discrimination is still the evil this rule seeks to eradicate,” the court explained, writing that “this alteration provides parties and courts with a new tool, allowing them an alternate route to defend the protections espoused by Batson. A prima facie case can always be made based on overt racism or a pattern of impermissible strikes. Now, it can also be made when the sole member of a racially cognizable group is removed using a peremptory strike.”

With that, the WA Supreme Court carved the following bright-line rule adopted from State v. Rhone:

“We hold that the trial court must recognize a prima facie case of discriminatory purpose when the sole member of a racially cognizable group has been struck from the jury. The trial court must then require an explanation from the striking party and analyze, based on the explanation and the totality of the circumstances, whether the strike was racially motivated.”

In other words, the peremptory strike of a juror who is the only member of a cognizable racial group on a jury panel does in fact, constitute a prima facie showing of racial motivation. Also, the trial court must ask for a race-neutral reason from the striking party and then determine, based on the facts and surrounding circumstances, whether the strike was driven by racial reasons.

The WA Supreme Court reverse Erickson’s conviction and remanded his case back to the trial court for a new trial.

My opinion? I’m very pleased. I wrote about unlawful race-based peremptory strikes in my blog on State v. Saintcalle; a WA Supreme Court case having similar dynamics, peremptory strikes and Batson challenges to the case at hand. In that post, I was very disappointed that the WA Supreme Court failed to fix a systemic problem of Prosecutors exercising race-based peremptory strikes during jury selection.

Finally, the WA Supreme Court has become more proactive in stopping this unfair, unconstitutional practice. It’s not enough for Prosecutors to give utterly superficial reasons for striking minority jurors when the real reason for striking them is blatantly staring us in the face. Now, and finally, Prosecutors must prove that their decision to strike is not race-based. This subtle, yet oh-so-important shift in perspective effectively addresses what’s really happening during jury selection and makes a solution toward preventing race-based peremptory strikes. Excellent.

DV Protection Orders

Image result for domestic violence no contact order

In Rodriquez v. Zavala, the WA Supreme Court held that a person does not have to be a victim of domestic violence (DV) in order to be included in a DV protection order.

BACKGROUND FACTS

Esmeralda Rodriguez and Luis Zavala shared a history of domestic violence. Over the course of their relationship, Zavala repeatedly physically and emotionally assaulted Rodriguez. He shoved Rodriguez to the ground while she was pregnant with their infant child L.Z., attempted to smother her with a pillow, blamed her for his failings in life, pulled a knife on her and promised to cut her into tiny pieces, threatened to kidnap L.Z., and said he would do something so horrible to Rodriguez’s daughters from a prior relationship that she would want to kill herself. He threatened to kill her, her children, and himself. Zavala tried to control Rodriguez. He restricted her communication with friends and family members, and he appeared uninvited wherever she was when she failed to return his phone calls.

Zavala’s history of violence against Rodriguez reached its peak one day in June 2015 after the couple had separated. At 2:00 a.m. that morning and in violation of a previous restraining order, Zavala pounded on Rodriguez’s door, threatening to break windows unless she let him in. Rodriguez went to the door and opened it enough to tell Zavala to leave. Zavala pushed past Rodriguez, cornered her, and began choking her. He told Rodriguez he was going to “end what he started.” The police arrived and arrested Zavala.

A few days later, Rodriguez went to the court and petitioned for a domestic violence protection order for herself and her children, including L.Z. In her petition, Rodriguez described the assault and Zavala’s history of violence. The court issued a temporary order pending a full hearing. The temporary order restrained Zavala from contacting Rodriguez and all four children.

At the later protection order hearing, Zavala appeared. Rodriguez discussed the choking incident and told the court that L.Z. had been asleep in another room during the most recent attack. She feared Zavala would take their son based on previous threats. Zavala admitted to coming to the house because he wanted to see L.Z., but denied Rodriguez’s allegations of abuse.

The trial court issued a protective order for Rodriguez and her daughters, but excluded L.Z., explaining that the boy was not “present” during the assault or threatened at all. According to the trial judge, “L.Z. wasn’t involved in any of this.” The order was effective for one year, expiring on June 26, 2016.

Rodriguez appealed. Among other things, she argued that her son should have been included in the final protection order based on her fear that Zavala would hurt L.Z. The Court of Appeals affirmed, finding that a petitioner may seek relief based only on her fear of imminent harm to herself. The WA Supreme Court granted review.

ISSUE

Whether the definition of “domestic violence” in chapter 26.50 RCW contemplates a parent’s fear of harm for a child at the hands of another parent.

COURT’S ANALYSIS AND CONCLUSION

The Court reasoned that in order to commence a domestic violence protection order action, a person must file a petition “alleging that the person has been the victim of domestic violence committed by the respondent. Under the statute, “Domestic violence” is defined as the following:

“(a) physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking as defined in RCW 9A.46.110 of one family or household member by another family or household member.”

The Court further explained that The Court of Appeals’s interpretation of the statute was unnecessarily narrow. “By relating the fear of harm back to the petitioner, it ignores the final prepositional phrase ‘between family or household members.'” Consequently, because domestic violence includes the infliction of fear of harm between family members generally, the definition includes a mother’s fear of harm to her child by that child’s father.

Also, the context of the statute, related provisions, and statutory scheme as a whole also indicate that “domestic violence” was intended to cover more than merely a petitioner and a perpetrator:

“This definition reflects the legislative recognition that violence in the home encompasses many different familial and household roles; violence does not distinguish on the basis of relationship.”

Moreover, the Court reasoned that a person does not have to be a victim of domestic violence to be included in a protection order. RCW 26.50.060 gives trial courts substantial discretion to protect victims and their loved ones. The provision explains that a trial court may bar a respondent from going to the “day care or school of a child” or having “any contact with the victim of domestic violence or the victim’s children or members of the victim’s household” and that, notably, the court may order “other relief as it deems necessary for the protection of the petitioner and other family or household members sought to be protected.”

Additionally, the Court said that the legislative intent of the Domestic Violence Prevention Act (DVPA) further supports that “domestic violence” includes a petitioner’s fear of harm between family members.

Finally, the Court explained that the plain language of RCW 26.50.010(3), related DV statutes, and the statutory scheme show that the definition of “domestic violence” allows a petitioner to seek relief based on a general fear of harm between family members. It said that deciding that “domestic violence” means the fear possessed only by the one seeking protection not only conflicts with the statute’s plain language, it would leave children unprotected:

“Even more acutely, such an interpretation would fail to protect infants and developmentally delayed children. These are the most vulnerable of our vulnerable populations. Excluding these children from protection orders because they fail to or cannot show fear of a harm they may not understand subjects them to violence the legislature expressly intended to prevent.”

Accordingly, the WA Supreme Court reversed the Court of Appeals because Zavala’s violent threats against L.Z. were “domestic violence” under the plain language of the statute, and Rodriguez properly petitioned for a protection order on L.Z.’s behalf based on her reasonable fear for him.

“Rough Estimates” Can’t Support a Conviction for Property Crimes.

Image result for rough estimate

In State v. Williams, the WA Court of Appeals decided that a victim’s “rough estimate” regarding the value of stolen property of “roughly $800” will not support a conviction for possession of property in the second degree. While the owner of a chattel may testify to its market value without being qualified as an expert on valuation, the owner must testify to an adequate basis of his opinion of value to support a conviction.

FACTS & BACKGROUND

In May 2014, the Spokane Police Department received calls complaining of a man stalking through backyards in a west Spokane neighborhood. On May 6, 2014, one caller, Brad Dawson, observed the man carrying two sports duffel bags and possibly a screwdriver. Also on May 6, 2014, someone burglarized the home of David and Joan Nelson.

Joan Nelson’s brother, John Johnston, drove through the neighborhood in an attempt to apprehend the burglar. After inspecting five homes, Johnston espied a kneeling gentleman, with two duffels bags astride, employing a screwdriver to pry open a lock on a storage facility. The man fled when Johnston yelled.

Johnston called 911 and tracked the fleer as the fleer scattered from yard to yard and hid in changing locations. Johnston kept contact on his cellphone with Spokane police. Spokane police officers arrived and apprehended the burglar, Leibert Williams. Law enforcement officers found a duffel bag, a Bluetooth speaker, a laptop, running shoes, a jacket, and two rings belonging to Adam Macomber in the possession of Williams. Days earlier, Macomber had discovered the property missing from his apartment.

The State of Washington charged Leibert Williams with five crimes: (1) residential burglary, (2) second degree burglary, (3) attempted second degree burglary, (4) attempted theft of a motor vehicle, and (5) possession of stolen property in the second degree. The State added the final charge near the date of trial.

During trial, Macomber identified those items missing from his apartment. However, he only gave “rough estimates” of $800 for the value of his items.

The State presented no other testimony of the value of stolen goods. And the trial court denied a request by Leibert Williams for a lesser included offense instruction with regard to second degree possession of stolen property.

The jury found Williams guilty of first degree criminal trespass, attempted second degree burglary, vehicle prowling, and second degree possession of stolen property. The jury acquitted Williams of residential burglary.

Williams’ appeal concerns the possession of stolen property conviction.

ANALYSIS & CONCLUSION

The Court reasoned that Macomber’s testimony failed to show beyond a reasonable doubt that the value of his stolen property exceeded $750 when Macomber said, “I could give a rough estimate . . .  I would say roughly $800.”

It further reasoned that “value” for the purposes of theft means the market value of the property at the time and in the approximate area of the theft. “Market value” is the price which a well-informed buyer would pay to a well-informed seller, when neither is obliged to enter into the transaction. In a prosecution, value need not be proved by direct evidence. Rather, the jury may draw reasonable inferences from the evidence, including changes in the condition of the property that affect its value.

Here, Adam Macomber testified to a “rough estimate” value of the stolen goods to be $800, a figure close to the minimum amount required to convict of $750. He listed the property taken from him, but did not describe the condition of the property when stolen. He also failed to disclose the purchase date or the purchase price of each item.

“Macomber did not testify to the basis of his opinion of value. For all we know, he used the purchase price of the goods, the replacement cost of the goods, or some intrinsic value to himself.”

With that, the Court decided that the proper remedy for the insufficiency of evidence was to dismiss the charge for possession of stolen property in the second degree. This somewhat extreme measure was partially based on the trial court’s refused to instruct the jury on the lesser included offense of third degree possession: “This court lacks authority to direct the entry of judgment of the lesser included offense if the jury was not instructed on that offense.”

My opinion? Good decision. My heart goes out to the victim, however, courts need more than mere “rough estimates” when it comes to assigning a value to property. Indeed, property crimes are assigned a seriousness level – from simple misdemeanors through Class A felonies – by identifying the value of the property which was stolen or destroyed. These are not small matters. There’s a big difference between felonies and misdemeanors. Therefore, it’s extremely important to be specific and correct on these matters.

 

Independent Blood Tests

Image result for BLOOD DRAW FOR DUI

In State v. Sosa, the WA Court of Appeals Div. III decided there is no requirement that an officer performing a blood draw on a DUI suspect must advise the driver that the driver has the right to an independent blood alcohol test.

BACKGROUND FACTS

On March of 2014, defendant Jose Sosa’s vehicle crossed the center line of U.S. Route 12, causing a two-car collision. Mr. Sosa called 911 and law enforcement responded to the scene. On contact, the responding officer noticed Mr. Sosa smelled of alcohol and showed signs of impairment. In response to questioning, Mr. Sosa disclosed that he had some beer earlier but did not provide any specifics. An ambulance transported Mr. Sosa to the hospital.

At the emergency room, a state trooper contacted Mr. Sosa. Again, Mr. Sosa was noted to smell of alcohol and display signs of impairment. The trooper asked Mr. Sosa if he would be willing to do a voluntary field sobriety test. Mr. Sosa did not respond. The trooper then offered to administer a portable breath test (PBT), which would have provided a preliminary indication of Mr. Sosa’s BAC. Again, Mr. Sosa did not respond.

Based on the trooper’s observations, a warrant was obtained to procure a sample of Mr. Sosa’s blood. Three and a half hours after the accident, Mr. Sosa’s BAC was 0.12. Mr. Sosa was arrested and charged with vehicular assault.

Several days after the accident, the driver of the vehicle hit by Mr. Sosa returned to the hospital because of abdominal pain. Doctors performed a lifesaving partial splenectomy. Mr. Sosa’s case proceeded to trial. The jury found Mr. Sosa guilty of vehicular assault via all three of the charged alternatives: ( 1) operating a vehicle in a reckless manner, (2) operating a vehicle while under the influence of intoxicating liquor or drugs, and (3) operating a vehicle with disregard for the safety of others.

On appeal, Mr. Sosa argues evidence of his blood test results should have been suppressed because he was not advised, at the time of the blood draw, of the right to independent testing. Former RCW 46.61.506(6) (2010) stated: “The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer. … ” On this argument, Mr. Sosa alleged his constitutional rights were violated.

COURT’S ANALYSIS

The Court reasoned that cases relied on by Mr. Sosa in support of his right-to-advice argument interpret prior versions of the Revised Code of Washington. The statutes in effect at the time of Mr. Sosa’s offense no longer required advice about independent testing in the context of a blood draw:

“Had Mr. Sosa’s offense taken place prior to the 2013 amendment, he undoubtedly would have been entitled to advice about independent blood testing. But this is no longer so. Our case law addressing the implied consent warning has always been based on statutory principles, not constitutional grounds.”

In short, the Court stated there is no independent constitutional right to such advice. Accordingly, any failure of law enforcement to advise Mr. Sosa about the right to an independent test had no bearing on the State’s evidence or Mr. Sosa’s conviction. With that, the court rejected Mr. Sosa’s challenge to his conviction based on the blood test results.

My opinion? Had Mr. Sosa’s offense taken place prior to the 2013 amendment, he undoubtedly would have been entitled to advice about independent blood testing. But this is no longer so. Washington’s implied consent law changed after the U.S. Supreme Court’s decision in Missouri v. McNeely, which held the taking of a DUI suspect’s blood without a warrant violates the suspect’s rights under the Fourth Amendment to the United States Constitution and the exigency exception to the warrant requirement generally does not apply.

 

 

“No-Impeachment Rule” vs. Race Bias

Image result for racist juror

In Pena-Rodriguez v. Colorado, the U.S. Supreme Court held that when a juror says he or she relied on racial stereotypes to convict a criminal defendant, the Sixth Amendment requires that the “No-Impeachment Rule” give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

BACKGROUND FACTS & PROCEDURAL HISTORY

In 2007, in the bathroom of a Colorado horse-racing facility, the defendant  Peña-Rodriguez allegedly sexually assaulted two teenage sisters. The girls told their father and identified  Peña-Rodriguez as an employee of the racetrack. The police located and arrested him. Each girl separately identified  Peña-Rodriguez as the man who had assaulted her.

At trial, a Colorado jury convicted the defendant  Peña-Rodriguez of harassment and unlawful sexual contact. During deliberations, a juror named “H. C.” had expressed anti-Hispanic bias toward the defendant and his alibi witness. Defense Counsel, with the trial court’s supervision, obtained affidavits from the two jurors who witnessed and heard the racially biased statements from juror “H.C.”

Defense Counsel motioned for a new trial on the grounds of juror bias. Although the trial court acknowledged racial bias, it denied Defense Counsel’s motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying as to statements made by other jurors during deliberations. The case made it’s way to the U.S. Supreme Court

ANALYSIS & CONCLUSIONS

The U.S. Supreme Court held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

Curing Racial Bias

The Court began by saying that the Civil War Amendments created the imperative to purge racial prejudice from the courts. It explained that ever since then, time and again, this Court has enforced the Constitution’s guarantee against state-sponsored racial discrimination in the jury system. The Court has interpreted the Fourteenth Amendment to prohibit the exclusion of jurors based on race, struck down laws and practices that systematically exclude racial minorities from juries, ruled that no litigant may exclude a prospective juror based on race and held that defendants may at times be entitled to ask about racial bias during voir dire.

The Court further reasoned this specific case lies at the intersection of the Court’s decisions endorsing the “No-Impeachment Rule” and the need to eliminate racial bias in the jury system. Those lines of precedent need not conflict. Moreover, the Court said racial bias implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.

ER 606(b): The “No-Impeachment” Rule

Under ER 606(b), a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

However, exceptions exist. For example, a juror may testify about whether (a) extraneous prejudicial information was improperly brought to the jury’s attention; (b) an outside influence was improperly brought to bear on any juror; or (c) a mistake was made in entering the verdict on the verdict form.

“This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and those seeking to eliminate racial bias in the jury system,” said the Court. “Racial bias . . . implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.”

With that in mind, the Court reasoned that a constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after a verdict has been entered—when necessary to prevent a systemic loss of confidence in jury verdicts; which is “a confidence that is a central premise of the Sixth Amendment trial right.”

The Test

The Court reasoned that before the “No-Impeachment” Rule can be set aside, there must be a threshold showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. “To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.”

The Court explained that whether the threshold showing has been satisfied depends on the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence. In constructing this rule, the Court said that standard and existing safeguards may prevent racial bias in jury deliberations, including careful voir dire and a trial court’s instructions to jurors about their duty to review the evidence, deliberate together, and reach a verdict in a fair and impartial way, free from bias of any kind.

With that, the U.S. Supreme Court reversed Mr. Peña-Rodriguez’s conviction and remanded the case back to the trial court for further proceedings.

My opinion? Great decision. This case represents a substantial step toward eliminating racial bias in our courtrooms. Even better, this decision is consistent with pre-existing Washington law under Seattle v. Jackson.

Jail Mail

Image result for jail mail

In Mangiaracina v. Penzone, the Ninth Circuit Court of Appeals held that prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected.

BACKGROUND FACTS

Nick Mangiaracina was jailed as a pre-trial detainee in Maricopa County’s Fourth Avenue Jail in Phoenix, Arizona. The jail’s stated policy is to open legal mail addressed to a prisoner only in the presence of that prisoner. Mangiaracina alleged, however, that his mail was repeatedly opened outside his presence in contravention of this policy. His complaint included descriptions of nine specific instances of the jail improperly opening his mail to/from his attorney.

In describing his injury resulting from the improper opening of his legal mail, Mangiaracina alleged that he and his two attorneys “are afraid to communicate by mail which is hard as I have so many cases and so much paperwork to go back and forth.” He further explained that his “right to confidentiality and privacy was violated” and that his “defense strategy and his rights in general were just shredded.”

PROCEDURAL HISTORY

Mangiaracina initially filed suit in Arizona superior court pursuant to 28 U.S.C. § 1983, alleging violations of his First and Sixth Amendment rights by a number of jail employees and John Doe defendants. The case was moved to federal court. Unfortunately, the U.S. district court ultimately dismissed Mangiaracina’s complaint with prejudice. it noted that Mangiaracina had failed to specifically allege that the pieces of mail were marked as “legal mail” and that, for most of the instances, he failed to explain how he knew the mail was opened outside his presence. He appealed to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit reasoned that under the U.S. Supreme Court’s Wolff v. McDonnell  and the Ninth Circuit’s Nordstrom v. Ryan, that prisoners have a Sixth Amendment right to confer privately with counsel and that the practice of opening legal mail in the prisoner’s presence is specifically designed to protect that right.

Furthermore, other circuit courts have similarly recognized the importance of this practice. In Jones v. Brown, the Third Circuit recognized, in the context of a First Amendment challenge, that opening legal mail outside the addressee’s presence was unlawful.

The Ninth Circuit further reasoned that the jail failed to identify any legitimate penological interest that would be served by opening legal mail outside Mangiaracina’s presence: “As we have emphasized in the past, a criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense.”  By necessity, reasoned the court, prisoners and pre-trial detainees rely heavily on the mail for communication with their attorneys. Unfortunately, the Maricopa County jail system does not allow incoming phone calls or provide access to e-mail, and outgoing phone calls can only be placed as collect calls.

With that, the Ninth Circuit reversed the lower court’s dismissal of Mangiaracina’s Sixth Amendment and First Amendment claims with respect to some mail-opening incidents and affirmed the lower court’s dismissal of the remaining counts of alleged improper mail opening.

My opinion? Excellent decision. It’s extremely difficult to communicate with jailed clients. Some jails offer limited hours of visitation and/or phone calls. Reading a defendant’s jail mail deprives the expression of confidentiality and chills the inmates’ protected expression. This is wrong, and violates a defendant’s First Amendment rights.

With respect to phone calls, I don’t discuss important details over the jail phones because the conversations are recorded. Although recorded phone calls with my clients are inadmissible at trial, these conversations are still surveillance which can “tip off” prosecutors to the strategies and tactics I develop with my clients.

Kudos to the Ninth Circuit for a very well-reasoned and substantial decision.