Monthly Archives: April 2009

‘How can you defend those people?’

Great article.  Discusses why defense attorneys continue to zealously defend people accused of crime.

People ask me the above question quite often.  My answer?  Everyone deserves the right to a fair trial.  It’s simply un-American to assume people are guilty, lock them up, and throw away the key.  There are times when the Prosecutor’s facts are weak.  Witnesses lack credibility.  Constitutional rights are tossed aside as police search cars, raid homes, and generally use people’s statements against them at trial.

My role is to make sure the process functions correctly.  No, it’s not easy work.  But it’s incredibly fulfilling.

State v. Carneh: Why Defense Attorneys Should Seek Dismissals WITH Prejudice

A painful teacher.  And quite possibly avoidable.

In State v. Carneh, the WA Court of Appeals decided the Prosecution could refile charges on a defendant after previously dismissing the case without prejudice. 

Typically, prosecutors dismiss cases in one of two ways: with prejudice, or without prejudice.   Dismissing a case with prejudice means prosecutors cannot refile future charges against the defendant.  However, dismissing  without prejudice means the prosecutor may, in the future, refile charges at time if (1) statute of limitations has not expired, (2) jurisdiction still exists, and (3) prosecutors develop substantial probable cause to refile. 

In this case, the State charged Carneh with four counts of aggravated murder in March 2001.  After extensive and periodically successful competency restoration treatment, the trial court ultimately dismissed the case without prejudice because it found Carneh was incompetent to stand trial at that time.  The State refiled charges after learning that Carneh had shown signs of improvement.  The trial court ordered further competency restoration.

RCW 10.77.086 provides that if competency restoration efforts are ultimately unsuccessful, “the charges shall be dismissed without prejudice, and either civil commitment proceedings shall be instituted or the court shall order the release of the defendant.”  After a trial court dismisses charges without prejudice pursuant to this statute, it loses the criminal jurisdiction and with it the authority to order competency evaluation or restoration.  But the statute reserves the prosecutor’s ability to refile charges and makes clear that the bar against trying incompetent defendants lasts only so long as such incapacity continues.  The prosecutor’s ability to refile is not unfettered; rather, the prosecutor must have a good faith basis to believe that competency has or will likely be restored.  In this case, the prosecutor received a letter from Western State Hospital indicating that Carneh’s condition had improved.  The letter was sufficient good faith basis to refile.  The trial court thereby reacquired criminal jurisdiction and with it the authority to order further competency restoration.  Ouch!!

My opinion?  Division II made a painfully reasonable  decision.  Competent defense attorneys should know that prosecutors may refile charges at any time if a case is dismissed without prejudice.  The remedy?  Whenever possible, defense attorneys should seek dismissals with prejudice.  True, our knee-jerk reaction is, quite simply, to take a dismissal in any form or fashion.  We’re grateful to get them for our clients, and nobody wants to look a gift horse in the mouth.   Still, a dismissal without prejudice obviously comes with strings attached.  Indeed, worst-case scenario like State v. Carneh could arise. 

New Findings: Decline in Black Incarceration for Drug Offenses

For the first time in 25 years, since the inception of the “war on drugs,” the number of African Americans incarcerated is state prisons for drug offenses has declined substantially.  According to a recent study released by The Sentencing Project, there exists a 21.6% drop in the number of blacks incarcerated for a drug offense.  This presents a decline of 31,000 people during the period 1999-2005.

Why the decrease?  The study shows that many states are softening their approach to crime by reconsidering overly punitive sentencing on defendants.  Diversionary programs are also being re-examined.  The changing approach is, not surprisingly, inspired by fiscal concerns.  Policymakers recognize that skyrocketing corrections costs cut into public support for higher education and other vital services.

Second, at the federal level, the U.S. Sentencing Commission has enacted changes in the sentencing guidelines for crack cocaine offenses, and members of Congress are considering proposals to reform the mandatory penalties for crack offenses.

My opinion?  Ironically, the recession has spurred positive changes in the criminal justice system.  Many lawmakers realize the foolishness behind incarcerating people for low-level drug offenses.  Also, I believe the “War on Drugs” has changed tactics.  Nowadays, police are more interested in busting defendants for methamphetamine (meth) than crack cocaine.  Meth is considered  a much larger risk to public safety and health.  Meth is also largely used/possessed by non-minorities.   This is partially because most meth labs are found in rural destinations; which have more caucasians, and not so much in the inner city, where more minorities dwell.

Just my two cents . . .

State v. Sutherby: Great Case Regarding Improper Prosecution and Ineffective Assistance of Counsel

Here, The Supreme Court threw out a child rape conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter (“L.K.”) stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Randy Sutherby was arrested and charged with first degree rape of a child and first degree child molestation. A subsequent search of his personal computer found child pornography, and he was charged with “10 counts of possession of depictions of minors engaged in sexually explicit conduct.” He was convicted by a jury on all counts and appealed.

The Court here considered two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?”

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.” The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition. The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

My opinion?  Yes, society HATES sex crimes; especially when children are possibly involved.  Here, however, the Supremes correctly looked beyond the nature of the crime and addressed how the case was botched by the Prosecutor and defense attorney alike.  Clearly, the Supremes sent a message: stacking charge after charge is, simply, unconstitutional.  Multiple images does not = multiple charges!  We creep into the realm of double jeopardy.

Additionally, State v. Sutherby teaches defense attorneys about ineffective assistance of counsel.  Oftentimes, prosecutors will try adding additional charges on totally unrelated events before trial.  This tactic, if successfully done, makes juries suspicious that the defendant “must be a bad person, otherwise they wouldn’t have acquired all these criminal charges.”  In other words, the juries become prejudiced toward the defendant, and might decide the cases accordingly.  This type of outcome kills justice.  Defense attorneys must avoid slopiness and BE CAREFUL.  We cannot allow the State to unfairly prejudice our clients at the 11th hour before trial.

Again, great opinion.

Closing Prisons, Slashing Sentences Eyed to Balance Budget

Excellent Seattle Times article.

In a sour economy, Washington and other states’ lawmakers are considering budget cuts that would close prisons, loosen sentencing guidelines and slash probation terms.  Lawmakers in Olympia are looking for nearly $4 billion in spending cuts.

My opinion?  Make lemonade out of lemons.  Perceive our budget woes as opportunities to revamp our criminal justice system.  Community service helps everyone.  Jailing low-level offenders helps no one.

Studies show the most expensive and least productive response to drug, mental-health and poverty-driven crime is full confinement. The most effective and most cost-productive response is community-based work, education and retraining.

True, there are some very violent and nasty defendants who probably should be incarcerated (even though they STILL deserve the benefits of a system which adamantly preserves their constitutional rights).  However, most people in the criminal-justice system are not in that violent category. Most are caught up in generations of a lifestyle where low-level crime is the accepted norm. It is these people who are unnecessarily sanctioned with long jail/prison sentences, parole, probation, etc.

My hope is that now, when we are asked to re-evaluate our use of limited resources, we will make the change for a broader, more socially beneficial response to crime.  Don’t spend hundreds of millions on penal institutions that give nothing back.  Instead, spend tens of millions on people.  Schools, community centers and community work programs are cheaper than jails.

Boom in Gun Sales Fueled by Politics and the Economy,8599,1889886,00.html?cnn=yes

Interesting article.

Basically, nationwide gun sales are increasing because  (1) people believe they’ll lose gun rights under Obama’s administration, and (2) there’s growing concern the police cannot adequately protect us in the wake of a deepening recession.  The recent gun slayings in New York and Washington add to people’s nervousness.

My opinion?  Well . . . it’s mixed.  On the one hand, I’m a staunch supporter of the 2nd Amendment.  However, I’m concerned people’s reasons for purchasing guns stems from unreasonable fears.  For example, there’s no proof the Obama administration wants to curtail gun rights.  Indeed, I’m sure Obama doesn’t want to make enemies with the NRA.  Additionally, there’s no proof violent crime is increasing as a result of the recession.  Again, fears.

As an attorney, I hope citizens diligently check whether they can lawfully/legally own handguns.  I once represented a client who was convicted (adjudicated) for Residential Burglary years ago when he was a juvenile.  The adjudication barred him from owning or possessing a firearm unless his rights were restored by court order.  Client did not know this.  He was not orally advised by the juvenile court he was losing his gun rights.

Years later, client is shooting guns with friends on a larger piece of property.  Nearby neighbors made a noise complaint.  Client was arrested for unlawfully discharging a weapon on city property.  No big deal, it was only a gross misdemeanor.  Unfortunately, the County Prosecutor gets a hold of the case; and charges client with two counts Unlawful Possession of a Firearm Second Degree.  Felony charges.  Each felony was punishable up to five years jail and $10,000 fine.  Harsh consequences, especially for someone who didn’t know they were prohibited from possessing guns. Fortunately, the case resolved favorably.

My advice?  Make sure you’re legal if you’re going to own, possess and/or fire guns! Get your Concealed Weapons Permit!  It’s worth the trouble.


State v. Ramos: Excellent Separation of Powers Case

Another great decision.

In State v. Ramos, the defendant was convicted in 1993 of sexual exploitation of a minor.  At the time, Washington did not require sex offenders to register with the State.   The law was changed after Ramos’ release and he registered in 2001.  The law changed again to require Level II sex offenders to report in person every 90 days.  Ramos failed to do so.  he was prosecuted for failing to report.

The court held that the authority to define crimes and set punishments rests squarely with the legislature.  Not the prosecutor, not the sheriffs, but the legislature.  It reasoned it is unconstitutional for the legislature to transfer its power to others.  Because the sex offender reclassification statute does not provide any guidance to local law enforcement agencies, Ramos’ delegation was improper, and his conviction cannot stand.

My opinion?  Great decision.  It reaffirms the debate regarding the wrongful  application of newly formed criminal laws.  In Washington, defendants can only be charged with violating laws in existence  at the time of arrest.  Unless a newly formed statute specifically provides for retroactive application, defendants cannot be found to have violated the new statute.  It isn’t fair.  Unconstitutional.  Again, great decision.

State v. Dingman: Trial Court Erred in Denying Defendant’s Discovery Requests

Good news.

Division II gave an excellent decision regarding the violation of a defendant’s right to review evidence.

In State v. Dingman, The State seized Mr. Dingman’s computers while investigating him for theft and money laundering.  The State created mirror image copies of the computers’ hard drives using a program called EnCase.  Dingman asked for direct access to his computer.  The Court refused, and instead ordered copies be provided using Encase, a program the defense neither had not knew how to use.

Applying court rules/procedures, the Court held the State is obligated to disclose all tangible objects in its possession which were obtained from or belonged to the defendant.  The computer hard drives were tangible objects obtained from the defendant.  Defense counsel should be allowed to examine the hard drives.  It was errer not to give the defense access to the hard drives.

My Opinion?  Great decision.  The defendant should ALWAYS have access to materials the prosecutor wants to use at trial.  Indeed, it’s a blatant violation of a defendant’s Constitutional rights to deny access.  Providing evidence to the other side is also, quite simply, a professional courtesy.

Drug Courts Huge Success

A National Study found that Drug Courts are widely succesful. 

Here’s a summary of the study’s findings:


Graduates of drug courts are less likely to be rearrested than persons processed through traditional court mechanics. Findings from drug court evaluations show that participation in drug courts results in fewer rearrests and reconvictions, or longer periods between arrests.


Nationwide, drug courts save taxpayer dollars compared to simple probation and/or incarceration, primarily due to reductions in arrests, case processing, jail occupancy and victimization costs. While not all persons diverted to drug court would have otherwise been sentenced to prison, for those individuals who are incarcerated, the average annual cost is estimated to be $23,000 per inmate, while the average annual cost of drug court participation is estimated to be $4,300 per person.


The study showed that Drug Courts which reward/sanction all levels of good/bad behavior recognize there is value in incremental progress toward the goal of abstinence.

A participant who faithfully makes all court appearances and meets the obligations of the court may be rewarded with an acknowledgement of accomplishment.  On the other hand, developing a flexible, graduated sanction program is a crucial contributor to a successful drug court program, because even those who are eventually successful in drug court tend first to relapse, warrant, and violate other program rules.

The study concluded that sanctioning should be seen as an opportunity to adjust treatment to limit subsequent relapse, rather than the first step on the path to an eventual termination of drug court participation and a likely sentence to custody.


One of the unique aspects of the drug court model is the frequency with which judges interact with participants. The relationship is less formalistic than in traditional courtrooms and is individualized based on the judge’s supervision of an individual’s progress.  The goal is partnership, not sentencing. 

My opinion?  I’m a HUGE fan of drug court!  First, it’s a great negotiating alternative for my clients facing drug charges IF the prosecutor’s charges are fairly strong, evidence is unlikely to be suppressed, and a jury would probably find the offender guilty.  Second, it’s impossible to treat drug addiction with jail or prison sentences.  Period.  Once released, the offender may likely continue using drugs.  Drug Court strikes at the root of the problem by addressing the drug addiction itself.  Finally, the program forces offenders to stay focused on treatment.  The State moniters treatment.  If offenders fail, they may face heavy consequences and get kicked out of Drug Court.

Drug Court should be implemented to a greater degree than it already is.  It presents a win/win situation for everyone: the public, courts, prosecutors, and ultimately the offender.