Category Archives: Violent Crime

Reducing Recidivism

Image result for recidivism

In an article titled, “The Nearly Perfect Recidivism Machine”David J. Krajicek, a contributing editor with The Crime Report, discusses a book written by Texas criminologist William R. Kelley.

“One would have to look far and wide to find a greater public policy failure than the American criminal justice system,” says Kelly in the opening chapter of his new book, From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice (Rowman & Littlefield).

William R. Kelly

Krajicek writes that Kelly, a University of Texas-Austin sociology professor, has long been one of the country’s toughest justice critics. In this book, he offers a plan for top-to-bottom transformation of the system, in collaboration with federal judge Robert Pitman and psychiatrist William Streusand.

Kelly suggest reforms to rein in the charging powers of prosecutors. He recommends the creation of independent panels of clinical experts that would screen offenders and recommend to prosecutors who ought to be diverted to treatment.

“There is nothing about punishment that changes the underlying conditions, disorders and deficits that the majority of criminal offenders bring into the justice system,” Kelly says. Arrestees with mental illness, substance-use disorders, homelessness and other problems churn through the system and into prison, where the underlying issues that led to a lawless life are ignored.

In a conversation with TCR Contributing Editor David J. Krajicek, Kelly explains why he believes the system should incorporate more carrot and less stick for offenders and how the Trump administration’s approach threatens to make things worse. He also suggests that the public already has a more sophisticated view of how to fix the system than our political leaders.

The Crime Report: What is the impact of the country’s justice policy failures?

William R. Kelly: The short financial and statistical answer is that over the past 45 years, we have spent $1 trillion on the war on crime, $1 trillion on the war on drugs and have accomplished a recidivism rate of 65 percent. Nearly all of this effort has focused on trying to punish crime out of people, based on naïve conceptions of criminality such as “hanging around with the wrong people” and “making bad decisions.” The evidence is quite clear that crime has much more complex origins and correlates.

What we have accomplished is a nearly perfect recidivism machine, placing all of us at the unnecessary and avoidable risk of criminal victimization, and wasting extraordinary amounts of money.

TCR: You refer to “the culture of American criminal justice.” What are its key characteristics and how do you change it?

Kelly: It is squarely based on the “tough on crime” mantra. This has dictated the decisions of legislators, prosecutors, judges, and corrections officials. The focus over the past 45 years has been driven by retribution and misguided assumptions that punishment deters re-offending. The question that has been routinely asked is how much punishment does this offender deserve. A more productive question for many offenders is how do we reduce the likelihood a particular offender will reoffend…

We need to provide clear incentives to motivate changing how we think about crime and punishment. Cost-benefit analyses conclusively show that behavioral change through clinical intervention like mental health and substance use disorder treatment is much more effective and cost efficient. The financial advantages should motivate legislators and local government officials. Reducing recidivism should be an incentive for prosecutors, judges, public defenders, and probation and parole officers, who will benefit from reductions in caseloads. Then there is the greater good of enhanced public safety, something we incorrectly assume the justice system already does.

TCR: You say the facile American view of crime and punishment got us here. Have voters grown more sophisticated, or are reform-minded pols still at risk of being Willie Hortoned?

Kelly: Public opinion data demonstrate that much of the public has a more nuanced view of crime and punishment than many legislators, prosecutors and judges. The public believes that the purpose of corrections is to rehabilitate offenders and therefore reduce recidivism. Many have moved beyond “lock ‘em up and throw away the key.”

Unfortunately, many policymakers, elected officials and some segments of the public still seem to be holding on to the idea that criminals are just bad people deserving maximum punishment. I’m sorry to say that Willie Horton is alive and well…There appears to be a reluctance to really embrace meaningful, comprehensive criminal justice reform.

TCR: You write, “We have arrived at the nadir of politics and policy.” Did you write that before or after Donald Trump’s election?

Kelly: I wrote that before Trump was elected when I incorrectly believed that we had already reached bottom. Who would have thought that anyone with any sense of history and even a superficial exposure to the evidence would run as the law-and-order candidate and resurrect the war on drugs?

TCR: How do you demonstrate that “tough” and “dumb” are synonyms when it comes to criminal justice?

Kelly: You focus on the enormous financial waste that the justice policy has produced. While there will be endless debates about what’s right or just and who deserves what, it is pretty hard to ignore the bottom line. A recent study estimates that the criminal justice and collateral social costs of tough on crime is $1 trillion per year. And it’s hard to reconcile 65 percent recidivism.

TCR:  Who’s to blame for the state of “correctional malpractice” you say we are in?

Kelly: First and foremost, elected officials who have blindly championed “tough on crime” policies to their political benefit, but to the detriment of public safety and the prudent use of tax dollars. State legislators and Congress have provided the mechanisms for tough on crime—mandatory sentences, restrictive parole release laws, and an ever-expanding criminal code that seems to make criminal justice the go-to system for just about every social ill.

But the culpability of elected officials goes well beyond that. The vast majority of offenders in the criminal justice system have a substance-use disorder, 40 percent are mentally ill, and 60 percent have had a least one traumatic brain injury often leading to neurocognitive dysfunction…The decision to not properly fund public health, schools and social welfare agencies has created problems that by default are managed by the criminal justice system.

Criminal justice reform means much more than merely reforming the criminal justice system. It requires massive changes to and investment in a variety of collateral institutions.

TCR: Your book articulates and recommends a scientific approach to justice reform. Yet science is out of favor in Washington and many state houses. Is there a scientific path forward?

Kelly: Yes there is, but I am afraid that we need to disguise it for some, by minimizing the science and emphasizing the public safety benefits and cost savings.

TCR: You note an overlooked data point: The country has 21 million people with substance-use disorders, the world’s third-highest rate. What explains this particular American exceptionalism?

Kelly: It is largely a result of the lack of public substance abuse resources, including inadequate treatment capacity and insurance coverage. Much of it can be attributed to the failure of the war on drugs and the belief that we can either punish or threaten substance abuse out of people. Criminalizing substance abuse rather than treating it as a public health problem has led to the failure to provide adequate funding for treatment.

Unfortunately, the picture is bleaker. The majority of substance abuse and mental health treatment in the U.S. is paid for by Medicaid. Current versions of repeal and replacement of the Affordable Care Act call for substantial cuts to Medicaid. That does not bode well for a problem that is crippling the country, the economy, communities, families, and the justice system.

TCR: You write that we have used an absurdly simplistic approach (lock ‘em up) for a boundlessly complex problem. Explain briefly the research on co-morbidity among inmates.

Kelly: The vast majority of offenders in the criminal justice system have clearly identifiable disorders, deficits and impairments. Many have more than one disorder, known as co-morbidity or co-occurring disorders. For example, the majority of offenders with a mental illness also have a substance-use disorder. Neuro-cognitive problems are often co-morbid with mental health and substance abuse. It does not require a clinician to appreciate that “lockin’ ‘em up” does nothing to alleviate these conditions and in fact typically exacerbates them.

When we do attempt to address these problems–diversion to a drug court or a mental health court–our focus is on just one crime-related condition. Our correctional treatment and rehabilitation efforts typically ignore co-morbidity.

TCR: What do the rest of us in a presumably civilized society owe these damaged people?

Kelly: I don’t think it’s so much what we owe them, but what do we owe ourselves: lower crime and recidivism, lower risk of being victims of crime, and lower cost of criminal justice. We have the tools to accomplish these things, but making it a political priority has been elusive.

TCR: You compare the U.S. system to those of Germany and Holland; it doesn’t stack up well.  You cite one lesson we can learn from those countries: “If you treat inmates like humans, they will act like humans.” How is it possible that we don’t know that already?

Kelly: In order to justify our draconian and dysfunctional reliance on punishment, we need to think of criminals as “not like us” in fundamental ways, as deserving retribution and harsh punishment. Punishment is what we have been told is the only thing “these people” will understand.

Psychological research confirmed a long time ago that, in most cases, incentives work much better than punishment for changing behavior. This is another example of the disjuncture between scientific evidence and criminal justice policy.

 TCR: Your key recommendation is an “unprecedented expansion” of diversion away from court toward intervention and treatment. Describe the panel review process you suggest.

Kelly: Traditional criminal prosecution, conviction and punishment are entirely appropriate for many offenders. For example, violent offenders and chronic, habitual offenders probably need to be separated from society through incarceration in the interest of public safety. For many others, such as non-violent offenders and many drug offenders, we have a much better chance of reducing recidivism by diverting them and mitigating the factors that are associated with their criminality. One of the key issues here is making good decisions about who to divert and who to prosecute.

We developed the concept of independent panels of clinical experts to facilitate better decision-making, both in terms of who should be diverted and what treatment or intervention will decrease the probability of recidivism. Offenders often have complex clinical needs that require the special expertise of psychiatrists, psychologists and clinical social workers who can assess and diagnose, determine the risk of re-offending, and make recommendations to prosecutors.

The goal is to divert appropriate individuals away from traditional prosecution to situations where their risk can be supervised and managed and where they can receive adequate treatment and intervention.

TCR: And this is the “disruptive innovation” of your book title?

Kelly: The panels are part of it. Implementing this concept will require a substantial shift in how prosecutors do their jobs, as well as how we think about crime and punishment. In effect, this requires changing the criminal justice culture.

We also argue that all levels of government need to address major deficiencies in public health, a fundamental consideration in assuring adequate capacity and expertise for intervention and treatment. The bigger picture is that criminal justice reform requires disruptive innovation of collateral institutions, such as public health.

TCR: And how might it be greeted by prosecutors, who hold all the power right now?

Kelly: This will not be easy. However, reasonable incentives for prosecutors should be recidivism reduction, in turn reducing caseloads.

The primary reasons that prosecutors’ caseloads are so large and unmanageable relate to the failure to reduce recidivism.

TCR: You say these changes will force us to redefine success in our justice system. How so?

Kelly: Success should be measured by recidivism rates, something directly related to performance of criminal justice. As it stands now, there really is no accountability. Everyone involved in criminal justice–legislators, police, prosecutors, defense attorneys, judges, and corrections officials–should all be held responsible for recidivism reduction. That would also be a disruptive change.

TCR: Tell me about the process of partnering with Robert Pitman and William Streusand in this book.

Kelly: I wrote the book, but both Pitman and Streusand played very important roles in devising solutions. For example, Pitman, a former U.S. Attorney who is now a federal judge, brought his knowledge and expertise to the task of developing statutory and procedural details for how the expert panels would fit into the roles and responsibilities of prosecutors, defense counsel and judges.

The input of Streusand, a psychiatrist, was crucial in the development of the clinical protocol for the expert panels and assessing offender dysfunction, as well as the discussions about fixing public health.

TCR: You were going through a serious health crisis while writing this book, as you point out in the introduction. I hope you are doing well. I wonder if that diversionsomehow informed the book’s content.

Kelly: Thank you. I am in complete remission and feel very blessed. To be honest, it could not have worked out any better. I was diagnosed in early March of 2016, when I had a rough draft of one chapter written. I was so fortunate that I had this project to distract me from the reality of being pretty sick and going through some difficult chemo. It was also fortuitous that I had two collaborators who are very good friends and played important roles in my recovery.

I’m not sure that being sick informed the content, but I suspect it influenced the tone. If I sound impatient at times in the book, it is probably a result of being confronted with the reality that life is short.

**Excellent article, and excellent book by Mr. Kelly.

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.

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.

Juror Misconduct

Related image

In Godoy v. Spearman, the Ninth Circuit Court of Appeals overturned a murder conviction because a juror inappropriately communicated with a “judge friend” about the case during deliberations.

BACKGROUND FACTS

Enrique Godoy was convicted of second-degree murder by a Los Angeles County Superior Court jury. A week before his June 12, 2006 sentencing, he moved for a new trial alleging that Juror 10 had improperly communicated about the case with a “judge friend” during deliberations. To substantiate his allegations, Godoy brought brought alternate juror “E.M.” to his sentencing hearing. The trial court continued Godoy’s sentencing to a future court date. Later, Godoy sent the Prosecutor a declaration about Juror 10’s misconduct from alternate juror N.L., who wrote the following:

“During the course of the trial, juror number ten kept continuous communication with a gentleman up north, who she referred to as her “judge friend.” Juror number ten explained to us, the jury as a whole, that she had a friend that was a judge up north. From the time of jury selection until the time of verdict, juror number ten would communicate with her “judge friend” about the case via her TMobile Blackberry, a two way text paging system. When the jury was not sure what was going on or what procedurally would happen next, juror number ten would communicate with her friend and disclose to the jury what he said.”

Despite this “smoking gun” declaration, the trial court nevertheless sentenced Godoy to 16 years’ to life imprisonment. Godoy appealed his conviction to the California Court of Appeal, arguing the trial court erred by (1) refusing to presume Juror 10’s communications prejudiced the verdict and (2) refusing to hold an evidentiary hearing on the alleged misconduct. However, the California Court of Appeal rejected both of these arguments on the merits and affirmed Godoy’s conviction. Gody again appealed, this time going to the Ninth Circuit Court of Appeals.

COURT’S ANALYSIS AND CONCLUSION

This Ninth Circuit’s opinion began with the following:

“One of the most fundamental rights in our system of criminal justice is the right to trial before an impartial jury. Its common law origin can be traced back to the Middle Ages. It was enshrined in the Sixth Amendment to the Constitution, and it has been embraced by the Supreme Court in numerous cases . . .”

Against this backdrop, the Ninth Circuit held that the California Court of Appeal decision violated the clearly established Supreme Court law that governs this case. It reasoned that under Mattox v. United States, due process does not tolerate any ground of suspicion that the administration of justice has been interfered with by external influence.

“Thus, when faced with allegations of improper contact between a juror and an outside party, courts apply a settled two-step framework,” said the Ninth Circuit. At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a tendency to be injurious to the defendant. If so, the contact is deemed presumptively prejudicial and the court proceeds to step two, where the burden rests heavily upon the State to establish the contact was, in fact, harmless. If the State does not show harmlessness – or in other words, if the defendant was, in fact, harmed by the juror’s contact with an outside party – then the court must grant the defendant a new trial.  However, when the prejudicial effect of the contact is unclear, then the trial court must hold a hearing to determine the circumstances of the contact, the impact thereof upon the juror, and whether or not it was prejudicial.

“Here, the California Court of Appeal failed to adhere to this framework in three key respects,” said the Ninth Circuit. First, although the State court correctly acknowledged at step one that N.L.’s declaration raised a presumption of prejudice, it never required the State to rebut that presumption at step two. It concluded instead that the presumption was rebutted because Godoy’s evidence failed to prove prejudice.” The Ninth Circuit further reasoned that under Mattox and Remmer, however, Mr. Godoy was not required to prove prejudice at step two. Once he triggered the presumption, the burden rested heavily upon the State to disprove prejudice. “Thus, in denying relief because Godoy’s evidence did not prove prejudice at step two, the State court acted contrary to well established law,” reasoned the Ninth Circuit.

Second, the California Court of Appeal decision to set aside the State court’s failure to hold the State to its burden was error. In other words, it was wrong for the California Court of Appeal to rely on the very same statement from N.L.’s declaration both to raise the presumption of prejudice and to rebut it.  “This defies not only logic, but also the clearly established definition of a ‘presumption,’” reasoned the Ninth Circuit.

Third, the California Court of Appeal denied Godoy a hearing on prejudice under the wrong legal rule. It held he had to show a “strong possibility” of prejudice, but Remmer requires a hearing whenever, as here, the presumption attaches but the prejudicial effect of the contact is unclear from the record. “Because the state court’s decision contravened these bedrock principles, it was contrary to clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1),” reasoned the Ninth Circuit.

The Ninth Circuit concluded that because Godoy showed the presumption of prejudice, he was entitled to the evidentiary hearing that he never had to begin with. With that, the Ninth Circuit reversed the judgment of the lower court and remanded the case back with instructions to hold an evidentiary hearing to determine the circumstances of Juror 10’s misconduct, the impact thereof upon the jury, and whether or not it was prejudicial.

My opinion? There’s a lot to be learned from this case. First, in all of my trials I admit a jury instruction prohibiting the jurors from accessing the internet and/or their smartphone devices. Jurors must rely on the evidence and the law and not be guided by outside influences. Second, I try and discuss the case with jurors immediately after they render verdicts. These conversations are very helpful teaching moments because jurors reveal what swayed their decisions. Also – and important to the defense of my clients – jurors may reveal whether their fellow jurors committed misconducts  similar to the type described in this case.

Good decision. And kudos to the defense attorney who discovered the juror misconduct. Although my heart goes out to the friends and family of the murder victim, justice is not served when our courts fail to administer their obligation to give defendants a fair trial.

Prostitution Evidence Admitted During Defendant’s Assault Trial.

Image result for abused prostitutes

In State v. Woods, the WA Court of Appeals held that evidence that the defendant prostituted the victim was properly admitted in his prosecution for second degree assault by strangulation. These prior acts were necessary to explain to the jury why the victim was fearful of seeking help from her family or from the police.

BACKGROUND FACTS.

The Defendant Euran Woods and victim BrittanyEnglund began their volatile relationship in 2009. At that time, Woods and Englund sold drugs together and Englund herself was addicted to drugs. As Englund’s drug addiction grew, so did her dependency on Woods— who exploited this dependency to isolate Englund from her friends and family. In addition to being emotionally abusive, Woods physically abused Englund throughout their relationship.

In 2011, Woods began forcing Englund to prostitute herself. He conditioned Englund to comply with his demands by convincing her that her life of prostitution was only temporary and that one day they would both have normal jobs and be happy together.

Englund argued with Woods regarding the prostitution several times. On one occasion in August of 2011, Woods strangled Englund until she passed out. Englund did not inform the police or her family of the abuse or prostitution both out of fear that Woods would retaliate and because she felt that Woods loved her and was sorry.

However, Woods strangled Englund again in September of 2011 after she discovered  he had been taking suggestive pictures with other women. Woods threw Englund across the room, kicked her, stomped on her, and strangled her until she passed out. Woods later apologized to Englund, who decided to not call the police.

In April of 2012, Woods again assaulted Englund. Her mother drove her to the hospital. Englund disclosed the 2011 assaults for the first time during a subsequent interview with a police detective.

THE CHARGES, JURY TRIAL & BASIS FOR APPEAL.

Woods was charged with one count of assault in the second degree for the September 2011 strangulation, with a special allegation of domestic violence pursuant to RCW 10.99.020.

During trial, the court admitted evidence of the August 2011 strangulation and the prostitution evidence. It determined that such evidence was admissible because it aided the jurors in understanding the nature of the relationship, motive, and intent, and helped to illuminate the victim’s state of mind.  The trial court also noted that—in matters dealing with domestic violence—testimony regarding prior assaults may assist the jury in understanding the dynamics of the domestic violence relationship and in assessing the victim’s credibility.

The jury found Woods guilty. He timely appealed. Although his attorney filed an Anders brief on arguments that the appeal was frivolous, the WA Court of Appeals nevertheless granted review to resolve the issues presented.

THE COURT’S REASONING AND CONCLUSION.

ER 404(b) Evidence

The Court of Appeals illustrated that under ER 404(b), evidence of a defendant’s prior bad act is not admissible to prove the defendant’s character and to show action in conformity therewith. However, such evidence may be admissible for other purposes, depending on its relevance and the balancing of its probative value and danger of unfair prejudice. For evidence of a prior bad act to be admissible, a trial judge must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Under this analysis, the Court of Appeals reasoned that the trial court’s rulings herein werecorrect. Englund’s testimony as to how Woods forced her into prostitution and why she was unable to escape was necessary for the jurors to understand the dynamics of this domestic violence relationship. Furthermore, Woods’ forced prostitution of Englund was a source of shame and fear for Englund and was an important factor in understanding why she refused to seek help from her friends, family, and the police.

Ineffective Assistance of Counsel

The Court illustrated how Constitutionally ineffective assistance of counsel is established only when the defendant shows that (1) counsel’s performance, when considered in light of all the circumstances, fell below an objectively reasonable standard of performance, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

Under this analysis, the Court rejected Wood’s arguments that his counsel was ineffective for failing to object to the admission of the prostitution evidence.  It reasoned there was nothing objectionable about this evidence because it was properly admitted pursuant to ER 404(b). Moreover, Woods’ counsel expressly deferred an objection to the prostitution evidence after stating that he viewed that evidence as presenting a valuable area for cross examination: “Rather, the record demonstrates that a tactical decision was made.”

Woods also believed he received ineffective assistance of counsel because his attorney failed to request a limiting instruction regarding the prostitution evidence. However, the Court of Appeals held this was also a strategic decision on the part of Woods’ defense attorney: “Defense counsel argued to the jury that Woods did not cause Englund’s injuries. Rather, he posited, those injuries could have been a result of Englund’s prostitution.” Thus, deficient performance was not established.

With that, the COurt of Appeals held that Woods was not prejudiced and upheld his conviction.

Brady v. Maryland to the Rescue

Image result for brady v. maryland

In United States v. Yepiz, the Ninth Circuit Court of Appeals remanded the convictions for numerous defendants so that it may engage in the necessary fact-finding to ascertain whether a government’s witness received benefits that were undisclosed to the defendants at the time of trial.

The defendants are all alleged to be members or associates of the Vineland Boys (“VBS”), a gang located in Southern California. On November 30, 2005, a grand jury returned a 78-count first superseding indictment charging appellants and approximately forty other individuals with crimes arising out of their membership or association with VBS.

Seven of the nine defendants were charged with violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and with RICO conspiracy, and all appellants were charged with federal distribution of narcotics. Other charged counts included violent crimes in aid of racketeering (“VICAR”), attempted murder, and possession with intent to distribute cocaine, methamphetamine, and marijuana.

Trial commenced on August 9, 2006. On October 26, 2008, the jury returned a verdict of not guilty as to five counts, a mistrial as to one count, and a verdict of guilty as to the remaining counts. The defendants timely appealed their convictions and sentences. This case was vigorously litigated over the course of two-and-a-half months. It presented the federal district court with a gauntlet of complex legal questions, and required it to grapple with unique concerns to courtroom safety and logistics.

At trial, one of the government’s cooperating witnesses was Victor Bulgarian. In September of 2006, on direct examination, Bulgarian testified that he was previously arrested for possession and sale of methamphetamine in an unrelated case, and agreed to cooperate with law enforcement in exchange for a lesser sentence, and a grant of immunity for his testimony as a government witness.

Bulgarian testified to having received no benefits from the government in exchange for his testimony. However, on cross-examination, Bulgarian testified to having received $5,000 in cash from the government after he testified to the grand jury in this case. Defendants noted that this testimony directly contravened a letter the government sent to them asserting that no witnesses received any benefits from the government in exchange for their testimony. The government acknowledged that it was “a glaring mistake,” but argued that the error was cured because defendants had ample opportunity to cross examine Bulgarian on the subject of the $5,000 payment. Defendants did not raise the issue again either at trial or in a post-trial motion.

Approximately three years later, on August 20, 2009, Bulgarian testified in the trial of defendant Horacio Yepiz. On direct examination, Bulgarian once again testified to having received no benefit from the government in return for his testimony. On cross examination, however, Bulgarian testified that since his arrest for drug-related crimes in 2004, he had received roughly $100,000 to $200,000 in cash from five different law enforcement agencies, although he was unable to give an exact figure. He explained that he was able to solicit paid work from these agencies whenever he wanted (“I decide when I want to work, and when I work, I get paid.”). Indeed, he testified to having received $800 for three hours of work the week prior.

Appellants now argue that the government violated Brady v. Maryland by failing to disclose the full extent of the benefits Bulgarian received at trial. For those who don’t know, Brady v. Maryland was a landmark United States Supreme Court case that established that the prosecution must turn over all evidence that might exonerate the defendant (exculpatory evidence) to the defense.

On Appeal, the Ninth Circuit reasoned that, under Brady, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The Ninth Circuit further reasoned that in order to prevail on a Brady claim, the defendant must show that the evidence was material. Materiality is satisfied when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”

Here, the Ninth Circuit ruled that the government’s attempts to minimize the significance of Bulgarian’s testimony are not persuasive in light of the record:

“While some of Bulgarian’s testimony was independently corroborated, it nonetheless played a substantial role in the government’s case-in-chief. In particular, Bulgarian’s testimony was relied upon heavily by the government to show that VBS was a ‘criminal enterprise’ under RICO. Therefore, had the alleged Brady materials been made available to appellants at trial, there is a “reasonable probability” that the result of the proceeding would have been altered.”

With that, and In light of the disputed facts surrounding defendants’ Brady claim, the Ninth Circuit remanded the convictions to the district court so that it may engage in the necessary fact-finding to ascertain whether Mr. Bulgarian received benefits that were undisclosed to appellants at the time of trial, and if so, whether Brady was violated as to each convicted count.

My opinion? Good decision. Since Brady was decided in 1963, the U.S. Supreme Court has required that prosecutors and police officers disclose evidence that impeaches the credibility of any state witness, including police officers. Examples of impeachment evidence include false testimony, misrepresentations made in court documents, false information in police reports and internal police disciplinary proceedings.

Unfortunately, that is not being done.  There is no uniform system compiling Brady data; each county’s prosecuting attorney has different methods for assembling Brady information and different perspectives on when disclosure is constitutionally required. Naturally, this creates problems for defense counsel seeking exculpatory information from prosecutors and law enforcement agencies. Fortunately, competent defense counsel has ways of overcoming these challenges, as demonstrated by the excellent representation given to the defendants in this case.

Protective Sweeps of Homes

Image result for protective sweep

In State v. Chambers, the WA Court of Appeals decided (1) the police’s “protective sweep” of the defendant’s home was improper because the defendant was arrested outside his home and the officers did not have specific facts that other armed individuals might be inside the defendant’s home, and (2) the defendant’s 3.5 Motion to Suppress statements made to police was rightfully denied because police scrupulously honored the defendant’s Fifth Amendment invocation of his right to remain silent.

In this case, defendant Lovett Chambers was drinking at the Feedback Lounge, a neighborhood bar in West Seattle that he frequented. Chambers was a convicted felon of African-American descent who moved to Seattle in 1989, worked in the construction industry, obtained degrees in computer science and started an IT business. In 1992, he got married and later purchased a house in West Seattle with his wife. A few years later, Chambers asked his wife to buy him a Colt .45 caliber semiautomatic handgun. She did so, apparently unaware that he was a convicted felon.

On the night of the incident, Mr. Chambers had numerous drinks at the Feedback Lounge. He carried and concealed his .45 pistol.   At some point, two Caucasian men entered the bar and began drinking. The gentlemen did not know Mr. Chambers. Later, all of the gentlemen departed the bar simultaneously and walked to their respective vehicles which were parked nearby each other in the parking lot.

For reasons unknown, words were exchanged between Chambers and the two gentlemen, who apparently uttered racial epitaphs to each other, Mr. Chambers, or both. One of the gentleman – Michael Travis Hood – pulled a shovel from his vehicle; apparently to defend himself from Mr. Chambers. However, Chambers shot Mr. Hood three times with his .45 pistol. Chambers walked away, got into his car and drove home in his BMW.

Mr. Hood died from lethal gunshot wounds to his back.

Seattle police arrested Chambers at his home at 10:49 p.m. Officer Belgarde read Chambers his Miranda rights at 10:51 p.m. Chambers smelled of alcohol. He was “swaying,” had trouble balancing, slurred his words, and was argumentative. Officer Galbraith drove Chambers to the precinct. Officers obtained a warrant to search Chambers’ home and seized a loaded .45 caliber handgun, a spare magazine, and the BMW keys. The police impounded the BMW. Later, officers interrogated Chambers and obtained numerous incriminating statements regarding the shooting.

The State charged Chambers with murder in the second degree of Hood while armed with a deadly weapon. Chambers asserted a claim of self-defense. Before trial, Chambers filed a CrR 3.6 motion to suppress the evidence seized from his house and the statements he made. The court denied the motion to suppress the evidence seized from the house. The court concluded the police “were authorized to enter the house to conduct a protective sweep to ensure their safety.” The court also denied the motion to suppress Chambers’ statements to police and reasoned his “right to remain silent was scrupulously honored” under Michigan v. Mosley.

The jury found Chambers guilty of the lesser-included offense of manslaughter in the first degree. By special verdict, the jury found Chambers was armed with a firearm at the time he committed the crime. The court imposed the low-end standard range sentence of 78 months plus the mandatory consecutive 60-month firearm enhancement. Chambers appealed.

  1. Evidence Seized from the House Was Obtained Through a Unlawfully Conducted “Protective Sweep,” However, The Trial Court’s Decision to Deny Chambers’ Suppression Motion Was Harmless Error.

Chambers contends the court erred in denying his motion to suppress the evidence the police seized from his house: the Colt .45, a magazine clip with .45 caliber bullets, and the keys to the BMW.

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates that one of the narrow exceptions to the warrant requirement applies. One recognized exception to the warrant requirement is a “protective sweep” of the home. The court further reasoned that under Maryland v. Buie the U.S. Supreme Court describes a protective sweep as a limited cursory search incident to arrest and conducted to protect the safety of police officers or others.

The Court of Appeals decided the trial court erred in concluding the police had the authority to conduct a protective sweep of Chambers’ house. First, a warrantless search of “spaces immediately adjoining the place of arrest” without probable cause or reasonable suspicion does not apply when the police arrest an individual outside his home.

Here, the undisputed facts do not support the warrantless entry and protective sweep of the kitchen under Buie and the court erred in denying the motion to suppress:

“The record does not support the conclusion that there were “articulable facts” that the kitchen harbored “an individual posing a danger.” The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual in the house when police arrested Chambers was his spouse. The front door was open after the arrest and the police could see Sara was sitting on the living room couch watching television and remained in the living room.”

However, the Court of Appeals also ruled that the verdict would have been the same absent the trial court’s error. Chambers testified he acted in self-defense when he shot Hood with the Colt .45. Chambers admitted that he parked his BMW in front of the Beveridge Place Pub on January 21, that he kept a .45 caliber gun under the passenger seat of the BMW, and that he used the Colt .45 to shoot Hood near Morgan Junction Park. For these reasons, the trial court’s decision to deny Chamber’s motion to suppress was harmless error.

2. Chamber’s Incriminating Statements Are Admissible.

On appeal, Mr. Chambers asserts the detectives did not “scrupulously honor” his Fifth Amendment right to remain silent. The court reasoned that the Fifth Amendment provides, in pertinent part, “No person shall be . .. compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, the Supreme Court adopted “procedural safeguards” to protect the privilege and held that before questioning an individual in custody, the police must clearly inform the suspect of the following:

That he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Here, the Court of Appeals decided that because the circumstances leading up to the police’s interview with Chambers show the police scrupulously honored Chambers’ right to cut off questioning, the court did not err in denying the motion to suppress the statements Chambers made.

The Court of Appeals reasoned that the record shows the police advised Chambers of his Miranda rights at 10:51 p.m. when he was arrested on January 21. Chambers stated he understood his rights and unequivocally said he did not want to talk to the police. The record establishes the police did not “ask the defendant any questions or persist in repeated efforts to wear him down or change his mind after he invoked his rights.” After he invoked his right to remain silent at 10:51 p.m. on January 21, the police did not question Chambers while at police headquarters. And while driving to Harborview to obtain a blood draw at 3:07 a.m. on January 22, the detectives did not ask Chambers any questions.

Nonetheless, on the way to Harborview, Chambers said he did not want to talk about what happened. While at Harborview, Chambers seemed to have “sobered up.” When they left Harborview approximately 45 minutes later, Detective Steiger advised Chambers of his Miranda rights again. Chambers stated he understood his rights and did not invoke the right to remain silent.

With that, the Court of Appeals concluded the undisputed facts support the conclusion that the right to cut off questioning was scrupulously honored.

The Court affirmed the jury verdict.

My opinion? The police should have advised Mr. Chambers of his Ferrier warnings, a topic which I have blogged many times. Ferrier warnings must be given if police officers seek to enter the home to conduct a warrantless search for evidence of a crime or contraband. Still, even if Ferrier warnings were given and Mr. Chambers denied the police entry into his home, his incriminating statements to police ultimately assigned harmless error to the unlawful search.

Holiday Drinking In The U.S.

Interesting article by Christopher Ingraham of the Washington Post discusses how data on total monthly alcohol sales in the United States carries a time-tested seasonal trend: the spikes in December of each year.

Clearly, the holidays are traditionally a time for boozing it up.

For example, the Department of Health and Human Services recently updated the official federal statistics on the percent of state residents ages 12 and older who drink at least once a month. Also, Ingraham’s article discusses how various direct and indirect measures of alcohol consumption, including breathalyzer data, Web searches for hangover relief and alcohol-related traffic deaths all suggest that peak American drinking happens between Thanksgiving and New Year’s.

THE NORTHEAST

New England is home to the nation’s heaviest drinkers – New Hampshire, where about 64 percent of residents age of 12 or older drink monthly, is tops in the country. Vermont, Maine and Connecticut also come in at drinking rates above 60 percent. Hard-drinking cheeseheads in Wisconsin see to it that their home is the only Midwestern state in the top tier of American drinkers.

THE NORTHWEST

Ingraham discusses how the next tier of heavy drinking states are all in the northern part of the country. Some researchers posit that there may be a relationship between heavy drinking and latitude. At the country level, alcohol consumption tends to increase the farther you get away from the equator. This could be a function of the potential for boredom and depression during winter months when the nights are long and the days are short. For a prime example of this, see recent stories involving alcohol and misconduct among people who live in Antarctica.

RELIGIOUS STATES

Ingraham discusses other cultural factors affect some States’ attitudes about drinking. On the map above, take a look at Utah and particularly Idaho. They’re in the bottom tier of the states for drinking frequency. Utah, where only 31 percent of adults drink in a given month, comes in dead last. This is almost certainly because of the large Mormon populations in those states — 58 percent of Utahans are Mormon, as are 24 percent of people in Idaho. Mormonism generally prohibits the use of alcohol and other drugs.

There’s likely a similar religious influence in places Alabama, Mississippi and the other Southern states where drinking is low. Those states have large evangelical Christian populations, many of whom are abstainers.

HOLIDAY DUI PATROLS IN WASHINGTON STATE

Image result for wa state patrol target zero

Coincidentally, the Washington State Patrol announced its increased Holiday DUI Patrol campaign of “Drive Sober Or Get Pulled Over.” Our State Troopers are extremely proactive in reaching their Target Zero goal of zero traffic fatalities by 2030.

Also, our local police and sheriff’s offices are working very hard responding to incidents of domestic violence, burglary, assault and other criminal incidents associated with holiday celebrations.

SEEK COMPETENT LEGAL REPRESENTATION IF YOU FACE CRIMINAL CHARGES THIS HOLIDAY SEASON.

For many, the holiday season is a joyous time when family and friends get together and celebrate. Naturally, our holiday merriment could involve the libations of alcohol and/or legal (and illegal) drugs.

We must enjoy the holidays safely and responsibly. Unfortunately, incidents of domestic violence, DUI, and other criminal behaviors – intentional or otherwise – can dampen our holiday festivities.

It’s never desirable to face criminal charges which could negatively affect your life for years to come. However, if you, friends or family find themselves in situations involving law enforcement, jail and/or criminal charges then contact the Law Office of Alexander Ransom as soon as possible.  I staunchly defends my clients’ constitutional rights to a fair trial, just proceedings and the suppression of evidence involving unlawful searches, seizures and self-incrimination. My practice involves saving people’s careers and reuniting families by seeking reductions and dismissals of criminal charges when appropriate.

Happy holidays!

-Alex Ransom, Esq.

State v. Ortuno-Perez: “Other Suspect” Evidence

Image result for not me

In State v. Ortuno-Perez, the WA Court of Appeals held that a murder defendant was wrongfully prohibited from introducing evidence that another person, who was armed at the murder scene, actually committed the murder.

In the early morning hours of October 12, 2013, Jesus Castro was shot in the head while standing outside of a house in Renton. He died several days later.

The single shot was fired at close range from a .22 caliber firearm. At the time the shot was fired, anywhere between 5 to 12 people were standing in close proximity to Castro. In that group were 2 individuals particularly pertinent here, the defendant Santiago Ortuno-Perez and Austin Agnish—each of whom was armed with a handgun at the time.

On the same day that Castro was shot, Ortuno-Perez was identified as a suspect and subsequently arrested outside of a house in Kent. In the days that followed, Ortuno-Perez was identified as the shooter by several witnesses who were present at the scene, including Agnish. Ortuno-Perez was subsequently charged with one count of murder in the first degree, committed while armed with a firearm.

Crucial to his defense at trial, Ortuno-Perez sought to introduce evidence that another person, not him, killed Castro. In particular, his counsel sought to identify Austin Agnish as the shooter, to cross-examine the State’s witnesses for potential bias in their testimony, and to present additional evidence indicating that a person other than Ortuno-Perez was the shooter.

However, the trial court denied Ortuno-Perez’s request because Ortuno-Perez had not demonstrated that Agnish had taken steps to commit the crime.

Four days later, Ortuno-Perez’s counsel filed a detailed offer of proof regarding the “other suspect” evidence that the defense would have introduced but for the trial court’s adverse ruling. Again, the trial court excluded the “other suspect” defense.

On the 10th day of testimony, Ortuno-Perez moved for a mistrial, arguing that his right to present a defense had been denied by the trial court’s “other suspect” rulings. The judge denied the motion for mistrial.

The jury convicted Ortuno-Perez of murder in the second degree, committed while armed with a firearm. He was sentenced to 280 months of confinement. Ortuno-Perez appealed.

Ultimately, the WA Court of Appeals reversed  Ortuno-Perez’s conviction and ordered a new trial.

“OTHER SUSPECT” EVIDENCE.

The court reasoned that Washington’s “other suspect” evidence rule—applicable to proffered evidence that a specific person other than the defendant committed the charged crime—has developed from a broad common law rule to a specific and focused application of well established principles of materiality and probative value. Furthermore, the court reasoned that State v. Franklin holds that such evidence should be admitted if there is an adequate nexus between the alleged other suspect and the crime. Thus, the threshold analysis for “other suspect” evidence involves a straightforward, but focused, relevance inquiry, reviewing the evidence’s materiality and probative value for whether the evidence has a logical connection to the crime.

THE SIXTH AMENDMENT.

The Court further reasoned that the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant a meaningful opportunity to present a defense. This right, however, is not absolute. It may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible. As with all evidence, the proponent bears the burden of establishing the admissibility of “other suspect” evidence.

Because the premise underlying the introduction of “other suspect” evidence is to show that someone other than the defendant committed the charged crime, the standard for admission is whether the proffered evidence tends to indicate a reasonable doubt as to the defendant’s guilt. Evidence is relevant when it is both material—the fact to be proved is of consequence in the context of the other facts and the applicable substantive law — and probative — the evidence has a tendency to prove or disprove a fact.

SUPPRESSING “OTHER SUSPECT” EVIDENCE VIOLATED ORTUNO-PEREZ’S RIGHTS UNDER THE SIXTH AMENDMENT.

Here, the Court of Appeals agreed that the “other suspect” evidence that Ortuno-Perez proffered actually supported a reasonable doubt as to his guilt. Prior to trial, defense counsel sought permission to present evidence to the jury that Agnish, not Ortuno-Perez, killed Castro. In his briefing, Ortuno-Perez’s counsel indicated that it planned to present evidence that Agnish (1) was using prescription drugs at the time that Castro was shot, potentially altering his perception of the shooting and his memory thereof, (2) was armed with a handgun and in close proximity to Castro at the time of the shooting, (3) lied about having access to guns other than the one he admitted carrying at the time of the shooting, and (4) was a member of a gang and had expressed a belief that Castro belonged to a rival gang.

However, the Court of Appeals reasoned that the trial court abused its discretion by improperly excluding the proffered evidence. It said the evidence proffered by Ortuno-Perez relating to Agnish’s potential culpability was of a type that tended to logically connect Agnish to Castro’s murder:

“If credited by the jury, it would establish Agnish’s motive (a gang clash), his opportunity (he was present at the murder scene and in close proximity to Castro at the instant of the shooting), and his means (he was armed with a handgun). Thus, the evidence proffered was plainly relevant to the question of the identity of Castro’s murderer and was of a type that, if credited by the jury, would support a reasonable doubt as to Ortuno-Perez’s guilt.”

The Court of Appeals said that as a result of the trial court’s erroneous rulings , Ortuno-Perez was unfairly prejudiced in two major respects: (1) his ability to confront the witnesses against him was compromised by the rulings preventing him from exploring the potential biases of witnesses who may have been covering for Agnish out of either affinity or fear; and (2) his ability to argue in closing argument that logical inferences from the evidence actually admitted during trial supported a reasonable doubt as to his guilt was compromised by rulings precluding him from suggesting to the jury that anyone other than Ortuno-Perez himself had shot Castro.

The trial court’s erroneous rulings were not harmless. The “other suspect” evidence which the trial judge excluded could have caused a reasonable juror to doubt whether Ortuno-Perez was guilty as charged. Consequently, the Court of Appeals reversed the conviction and remanded for a new trial.

My opinion? Good decision. Under the Sixth Amendment, allowing attorneys to argue inferences from the evidence is a rudimentary aspect of this right.  Defense Counsel must be afforded the utmost freedom in the argument of the case and some latitude in the discussion of their causes before the jury.

Premeditated Murder Unproved.

Image result for premeditated

In State v. Hummel, the WA Court of Appeals Division I reversed a defendant’s conviction for first degree murder due to insufficient evidence of premeditation. It reasoned that proof of a strong motive to kill the victim does not, in itself, establish planning or the method of killing. Because the prosecutor did not request the court instruct the jury on murder in the second degree, the Court dismissed the case with prejudice.

The facts are interesting. Two juries in Whatcom County Superior Court found defendant Bruce Allen Hummel guilty of killing his wife, Alice Hummel. Both were retired Alaska teachers. Their two daughters lived on Alabama Hill in Bellingham in the early 1990s. This case was heavily covered in the Bellingham Herald.

The story begins with Mr. Hummel informing their children that their mother decided to move away and leave the family. Over the years, the girls continued to receive letters and gifts in the mail from Alice. Bruce Hummel told the girls Alice had earned a promotion and moved to Texas.

In 2001, the girls reported their mother missing in 2001. They recalled the strange circumstances of their mom’s disappearance. Bellingham police detectives found only traces of their mother’s existence: a current driver’s license from Alaska, monthly disability deposits from a teachers’ retirement system in Alaska, and withdrawals from a bank account in Alaska. Once detectives confronted him with $340,000 in disability checks he had collected under Alice’s name, Mr. Hummel admitted Mrs. Hummel had been dead for years. He claimed she committed suicide by cutting her wrists. Her body was never found.

Hummel was convicted of 12 counts of wire fraud in federal court, for the theft of the disability checks, then charged with murder in the first degree in Whatcom County.

At his first trial in August 2009, Hummel of first-degree murder in August 2009. He appealed as he started serving a sentence of 45 years in prison. The Washington State Court of Appeals found, in 2012, that that there was sufficient evidence to prove the case, but that Hummel’s rights were violated during voir dire, when potential jurors were questioned in private about sensitive issues in their personal lives. (Many other similar, serious cases have been overturned in Washington for not undertaking what is called the Bone-Club analysis, essentially a checklist to avoid violating a defendant’s right to a public trial).

At his second trial in May 2014, Hummel was again convicted of first-degree murder. This time he was sentenced to 26 years in prison, a shorter term because the Court of Appeals found his federal crimes should not count toward his criminal history because there was no comparable state law to federal wire fraud in 1990.

Hummel appealed with assistance from the Washington Appellate Project. Hummel argued there was insufficient evidence to support the conviction because the State did not prove beyond a reasonable doubt the essential element of premeditation.
The Court of Appeals agreed. It reasoned that no trier of fact could have found beyond a reasonable doubt that Hummel killed Alice with premeditated intent to commit murder in the first degree. Reversal for insufficient evidence is “equivalent to an acquittal” and bars retrial for the same offense.  Also, the Court reasoned that the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in prior proceedings. Because the prosecutor did not request the court instruct the jury on the lesser included crime of murder in the second degree, the Court of Appeals held it could not remand to enter a judgment on murder in the second degree.
The Court of Appeals reversed and vacate the conviction for premeditated murder in the first degree, and remand the case back to Superior Court to dismiss the conviction with prejudice.
My opinion? This isn’t over. I’m certain the State shall appeal to the WA Supreme Court.