Monthly Archives: January 2010

State v. Erickson: Probation Officers Given Too Much Power

Ugly opinion.  WA Supremes decided a court may issue a bench warrant without a formal finding of probable cause on the underlying allegations after the defendant fails to appear at a probation violation hearing.

Anthony Erickson received probation after he was convicted of fourth degree assault.  His probation officer alleged Erickson violated the terms of his probation.  Erickson was issued a summons ordering him to appear at a probation violation hearing.  When Erickson failed to appear, the court issued a bench warrant for his arrest.  Erickson was subsequently arrested.  A strip search at the jail revealed he possessed cocaine.

The WA Supremes reasoned that because Erickson failed to notify the court of any change of address, the judge in the lower court had a “well-founded suspicion” that Erickson had violated that condition of his release.  Consequently, the judge had authority to issue the bench warrant based on that alone.

My opinion?  It’s unbelievable that the allegations – and that’s all they are, mere allegations – of a probation officer are upheld as stone-cold truth by judges if a defendant fails to show up for a hearing.  It’s unbelievable that judges can now issue bench warrants because a defendant failed to notify their probation officer of an address change.  It’s unbelievable that defendants can be taken into custody, strip searched, and arrested because they failed to notify their probation officer of an address change.

This case highlights how unfairly the gears of the criminal justice system grind away at individual rights.  I hope this gets appealed to a higher court.

State v. Drum: Good Decision Regarding Stipulated Evidence At Drug Court Trials

Interesting opinion.  An excellent teacher for judges, prosecutors and defense counsel alike.  In short, the WA Supremes held a trial court may find a defendant NOT GUILTY if it determines that the stipulated evidence does not establish all of the elements of a crime beyond all reasonable doubt.

Patrick Drum entered into a contract to participate in drug court, which provided for the eventual dismissal of a Residential Burglary charge if  Drum  successfully completed a substance abuse treatment program.  The contract required Drum to stipulate that the facts set forth in the investigation reports, witness statements, and laboratory tests were true and sufficient to support a finding of guilt.  After waiting in custody for 42 days for a bed to open up at a treatment facility, Drum requested to leave the drug court program.  He had a bench trial.  The judge found him guilty based on the evidence that was stipulated when Mr. Drum entered the contract.

Here, the WA Supremes reasoned that by entering a drug court contract, a defendant is NOT giving up his right to an independent finding of guilt beyond a reasonable doubt.  A trial court still has the authority to find the defendant not guilty if it determines that the stipulated evidence does not establish all elements of the crime beyond a reasonable doubt.  Finally, if a trial court independently reviews the evidence and makes findings, a stipulated drug court agreement is NOT the equivalent of a guilty plea.


For those who don’t know, Drug Courts are programs that divert nonviolent, drug-related offenders into intensive treatment programs with the  goal of encouraging offenders  into a productive, drug-free lifestyle.  In general, offenders participate in required drug treatment and counseling, find work, meet with corrections officers, attend regular visits with a judge, and meet any other conditions set by the court.  Personal involvement by the drug court judge, prosecutor, defense attorney, and treatment providers is cited as the key to the success of drug courts.

Drug Court is a privilege.  It’s difficult to get into.  A defendant must be evaluated and found a good candidate by the evaluator, prosecutor and judge.  To gain entry, defendant must also stipulate – essentially, agree – to the truth of the evidence alleged against them in the police reports.  Worst-case scenario; if defendants either quit or are kicked out of Drug Court, then they have already waived their right to a jury trial, waived their right to challenge the evidence through direct/cross examination of witnesses, and essentially waived their presumption of innocence.  Ouch.

I like this opinion.  It gives judges broad discretion to review the truth and veracity of the “stipulated evidence.”  In other words, judges may consider whether the State can prove their case beyond a reasonable doubt.  Best-case scenario for a defendant, it appears they have a chance to get a case acquitted by a judge upon leaving Drug Court.

Practically speaking, the likelihood of an acquittal is slim.  Drug Courts are highly political venues.   Indeed, look at how the WA Supreme Justices voted, it was a SLIM 5-4 majority.

But that’s another story . . .

Washington State Felons Should Have Voting Rights, Federal Court Rules

Here’s some good news.  On Martin Luther King Jr. day, no less.

A federal appeals court tossed out Washington’s law banning incarcerated felons from voting, finding the state’s criminal-justice system is “infected” with racial discrimination.

Muhammad Shabazz Farrakhan was serving a three-year sentence at the Washington State Penitentiary in Walla Walla for a series of felony-theft convictions. Ultimately, five other inmates, all members of racial minority groups, joined as plaintiffs.

The plaintiffs’ brought studies and social-science data which showed that minorities in Washington are stopped, arrested and convicted in such disproportionate rates that the ban on voting by incarcerated felons is inherently discriminatory.

The federal court agreed.  The decision, written by Judge A. Wallace Tashima, said the studies “speak to a durable, sustained indifference in treatment faced by minorities in Washington’s criminal justice system — systemic disparities which cannot be explained by ‘factors independent of race.’ ”

Blacks are 70 percent more likely — and Latinos and Native Americans 50 percent more likely — than whites to be searched in traffic stops.  The research also showed that blacks are nine times more likely to be incarcerated than whites, despite the fact that the ratio of arrests for violent crime among blacks and whites is less than four-to-one. One result of that: 25 percent of black men in Washington are disenfranchised from voting.

My opinion?  I’m overjoyed with the decision.  Granted, convicted felons should face appropriate consequences if found guilty of committing crimes.  However, the Washington law stripping them of voting rights was simply Draconian.  Eventually, the convicts will serve their sentence and return to society.  Studies show that voting by incarcerated felons is the best tool to re-integrate them into society.  Why deny them the right to vote?  What good does that do?

The decision is a step in the right direction.  Let them vote.

Program That Gives Suspended Drivers a Second Chance Finds Success

Good news!  Suspended drivers can earn a fresh start, and taxpayers save money in the bargain.

A diversion program offered to people caught driving with a suspended license is saving taxpayers thousands of dollars and helping people earn back their driver’s licenses, according to officials with the Snohomish County Prosecuting Attorney’s Office.

It works like this: eligible defendants are sent a letter advising them that they have three months to get their driver’s license reinstated by the state Department of Licensing. If they do, the prosecutor’s office agrees not to file the misdemeanor charge.

The program is saving the costs associated with prosecuting the cases.  It also generates revenue.  According to the article, people are paying thousands of dollars in fines to get their licenses back.  Indeed, one man paid more than $10,000 in back child support to get his driver’s license reinstated.

My Opinion?  It’s about time.  Driving While License Suspended (DWLS) charges are a patent WASTE OF TIME to charge.  Yes, DWLS charges are a crime.  Yes, defendants risk serving jail time if their criminal history substantiates it.  But c’mon . . . do we really want to incarcerate people for this?  In my experience, the only reasons why people’s licenses get suspended is because they failed to pay traffic tickets, owe child support, were caught driving without insurance or haven’t paid costs associated with a traffic accident.  Also, it costs us taxpayers approximately $70 a day to house inmates in county jail.  That cost goes up exponentially when the prosecutor’s office gets involved.  Again, WASTE OF TIME and WASTE OF MONEY.

Congrats to Snohomish County.  Perhaps other counties will follow suit.

State v. Pugh: WA Supremes Admit “Excited Utterance” Hearsay Evidence of 911 Call; Disregard State v. Crawford


Defendant Timothy Pugh and his wife Bridgette are married.  They had problems.  In November 2004, she obtains a no-contact order (NCO) against him.  On March 21, 2005, and in violation of the NCO, the Pughs were together at a friend’s apartment.  At 3:13 a.m., she calls 911 and states, “My husband was beating me up really bad.”  She provided his description.  When the operator asked her whether he was still there, Mrs. Pugh said, “He’s just outside.” She again reported being beaten, but this time stated it in the present sense.  She also said she needed an ambulance.  The call terminated when police officers arrived.  Mrs. Pugh had a bruised face and a chipped tooth.  The officers soon arrested Mr. Pugh in the parking lot outside the apartment where Bridgette was.

Before trial, the State delivered a subpoena to Mrs. Pugh.  However she refused to arrive and/or testify at trial.  Despite her decision, and in clear violation of State v. Crawford (2004 case where WA Supremes upheld the Confrontation Clause and dismissed a case where the State’s victim/witness refused to testify) , the trial court admitted her 911 call as evidence.  Pugh was convicted of felony violation of the court order, domestic violence.

 The WA Supremes held Mrs. Pugh’s statements to the 911 operator were nontestimonial, and therefore admission of a recording of the 911 call at Mr. Pugh’s trial did not violate his right to confrontation under the Sixth Amendment.  They reasoned that her statements qualify as res gestae under the res gestae doctrine as it applied at the time the state constitution was adopted.  They further argued that statements of this type do not implicate the state confrontation clause.  Because the statements are nontestimonial and do not implicate article I, section 22, admission of the 911 recording violated neither the federal nor the state confrontation clause.

My opinion?  I hold the same disdain as Justice Sanders’ dissenting opinion.  Article I, Section 22 of the WA Constitution states, “In criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face . . .”  This is the essence of the Confrontation Clause.  And, to quote Justice Sanders, “What is there about face to face that the majority opinion does not understand?”  Crawford applies – and cases get dismissed – if a victim refuses to testify.  Period.  Here, the victim refused to testify.  Nevertheless, and in total violation of Crawford, the majority pulls out some archaic res gestae analysis, breathes life into it, and totally stomps the heck out of Crawford.


Washington Supreme Court Statistics: 2009

Veeery interesting information!

David Reitz, who co-manages an incredibly impressive blog of the Washington Supreme Court, tracked the opinions and votes of each WA Supreme Court justice and provided a spreadsheet with case-by-case breakouts.

The Supreme Court Washington Blog provides news, information, and analysis of the cases before the Supreme Court of Washington.  I consider them an authority on the subject.  Here’s some highlights of the 2009 statistics:

* Soon-to-be Chief Justice Barbara Madsen was the most prolific writer this year.  She authored 18 majority opinions and 39 total opinions;

* Justice Richard Sanders is the most frequent dissenter, writing nearly three times as many dissents as any other justice;

* The justices with the highest rates of agreement were Madsen and Fairhurst (88%);

* The justices with the lowest rates of agreement were Sanders and Fairhurst (66%);

* Unlike the U.S. Supreme Court, which sees many narrow 5-4 decisions, the state Supreme Court enjoys a number of strong majority opinions, with nearly half of its rulings unanimous or 9-0 in the outcome.

This information is valuable.  Good criminal defense attorneys defend their clients’ constitutional rights at every opportunity.  They achieve this goal by (1) educating themselves on new court opinions, and (2) applying these opinions to pretrial motions which suppress illegally obtained evidence or dismiss the State’s case altogether.

A major component of educating oneself involves watching the activities of the State Supreme Court.  In short, attorneys can predict how a certain justice will rule on future cases based on how they ruled in past cases (I’m being flippant, but those who play odds on roulette tables understand what I’m saying).  Additionally, attorneys can also predict how the State Supremes adress controversial opinions handed down from the United States Supreme Court.

For example, Arizona v. Gant was a recent controversial opinion handed down by the United States Supreme Court.  Gant is extremely defendant-friendly: the U.S. Supremes ruled that, depending on the circumstances, a vehicle search is unlawful when a defendant is merely arrested for a traffic violation.  Gant essentially put a stop to unlawful pretextual searches by police.  Beautiful.

Recently, in State v. Bueln-Valdez, the WA Supremes supported Gant as good Washington law.  (I excitedly blogged this last month).  Us defense attorneys  who watch the WA Supremes were ecstatic.  We saw State v. Bueln-Valdez come down the pike and hoped/believed the WA Supremes would use it as a vehicle (no pun intended) to embrace Gant.  As a result, our pretrial motions to suppress unlawfully obtained evidence are now that much stronger because trial judges must follow the opinions of higher judical authorities when ruling on pretrial motions.

Again, these statistics help.  Major kudos goes out to David Reitz, Jonathan Bechtle, and Trent England for their blogging efforts.  Thank you, gentlemen. 🙂

American Law Institute Abandons the Death Penalty

Last fall, the American Law Institute (ALI), which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced its project a failure and walked away from it.

The ALI is made up of about 4,000 judges, lawyers and law professors across the country. It synthesizes and shapes the law in restatements and model codes.  Consequently, the ALI provides structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

Here, the ALI’s decision to abandon the death penalty is INCREDIBLY important because they were the only intellectually respectable organization which supported the death penalty system in the United States.  In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states.

Their reasons for abandoning?  A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

My opinion?  IT’S ABOUT TIME.  The government should not be in the business of killing its own citizens.  Period.  The death penalty does not deter people from committing heinous crimes.  Period.  Seeking the death penalty is overly expensive.  Period.

Some may argue that victims — and families of victims — are short-changed if we abandon the death penalty.  I grieve their loss.  However, the truth of the matter remains that families/victims rarely find closure because executions involve a long, ugly, drawn-out process.  Appeals take years.  In the interim, families/victims are constantly waiting for the defendant to be executed.  That’s agonizing!

Abandon it.