Monthly Archives: February 2010

Whatcom County Jail Gets Record Number of Inmates

Front page news, Bellingham Herald.

Whatcom County Jail’s population hit a record high over Presidents Day weekend and since then, law enforcement agencies have been booking fewer people, to ease the crowding.

The jail’s population reached 323 inmates – its operational capacity should be 212 inmates -the weekend of Feb. 13-15, causing the jail to run out of temporary beds and come close to running out of clothes, sheets and other resources.

From Feb. 1 to Feb. 16, an average of 26 people were booked into the jail each day.

Bellingham police have been citing and releasing some people arrested on misdemeanor, and booking and then immediately releasing others.  An officer might take some people to jail to have their photos and fingerprints taken, then have the jail release them.

My opinion?  I’ll state the obvious: the criminal justice system in Whatcom County has reached peaked capacity.  Jails are overcrowded.  Trial calendars are filled.   Trust me, I know.

The easy solution?  Hire an additional judge, build additional courts, and build another jail.  Unfortunately, that’s not going to happen any time soon.   Put simply, The County lacks resources to build jails and/or hire more court staff.  This is not due to sloppy spending on the part of the County.  The Whatcom Superior Court has already eliminated numerous services due to the decrease in revenues.  That said, the likelihood of obtaining more revenue to hire another judge and/or construct another jail is slim to none.

The harder solution – and probably the more criticized; yet WORKABLE solution – is for the Prosecutor’s Office to negotiate more cases to a favorable resolution.  They’re a trial-happy bunch, and unnecesarily so.  Not every case must be brought to trial.  Justice happens when all parties leave the courtroom satisfied with the result.

At any rate, overcrowded jails are symptomatic of larger problems.  The County judiciary is burning the candlestick at both ends.  We’re seeing a decrease in judicial revenues and an increase in inmates.  The state of affairs certainly is alarming.  Why now, and why all of the sudden?

A tough nut to crack . . .

State v. Harris: A Defendant May Argue Gant On Appeal Even Though It Was Not Argued At Trial.

Beautiful.  A defendant who did not bring a suppression motion prior to trial, may assert a claim under Gant v. Arizona for the first time on appeal.

Defendant Stuart J. Harris, Jr. appealed his conviction for First Degree Unlawful Possession of a Firearm.  He argued  sufficiency of the evidence,  additional evidentiary error, and prosecutorial misconduct.   While this appeal was pending, the United States Supreme Court decided Arizona v. Gant, which deals with the scope of a car search pursuant to the arrest of its driver.  The Court of Appeals Division II allowed the parties to provide supplemental briefs on the Gant issue.

For those who don’t know, Gant rejected the reading of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d (1981), that predominated in the lower courts, namely, that the Fourth Amendment allows a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.

In departing from Belton, the Gant Court held instead that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Gant, 129 S. Ct. at 1723.3

Here, the Court of Appeals reasoned the facts in Gant were similar to those here.  Harris was not within reaching distance of the passenger compartment of the car at the time of its search, and there was no reason to believe that the car contained evidence related to the offense for which he was arrested (driving with a suspended license). Therefore, absent other legal support for the search, the officer’s search of  the car was unlawful.  Furthermore, Gant applies retroactively because “A party should be allowed to take advantage of a decision rendered during the pendency of his case, even if he had not reserved the point decided, if the decision could not have reasonably been anticipated.”  State v. Harris at 6-7, quoting Judge Posner of the Seventh Circuit.

My opinion?  I’m a HUGE fan of the Arizona v. Gant opinion (please see my Dec. 24, 2009 blog), and by extension, I’m a HUGE fan of this opinion. Generally, United States Supreme Court decisions that announce new constitutional rules governing criminal prosecutions apply retroactively to all criminal cases not yet final on appeal.  I’m happy the Court of Appeals stuck to the law; and supported Gant, to boot.

State v. A.N.J: WA Supremes Withdraw Guilty Plea Due To Ineffective Assistance of Counsel

Issue was whether defendant A.N.J’s court appointed counsel was ineffective because counsel failed to do an adequate investigation, failed to consult with experts, failed to fully inform him of the consequences of his plea, and failed to form a confidential relationship with him independent of his parents.

In 2004, when A.N.J. was 12 years old, he pleaded guilty to first degree child molestation.  Almost immediately, he moved to withdraw his plea upon realizing (1) his juvenile sex offense criminal history would remain on his record once he was an adult, (2) that he might have to register as a sex offender for the rest of his life, (3) that he would have to notify his school, and (4) that he would probably be shadowed by an adult while he was at the school.  He argued that under the facts of this case, his plea was not knowing, voluntary and intelligent, and that he should have been allowed to withdraw it.

The court record showed that A.N.J.’s defense counsel spent as little as 55 minutes with A.N.J. before the plea hearing, did no independent investigation, did not carefully review the plea agreement, and consulted with no experts.

Consequently, the WA Supremes reasoned that court appointed counsel’s representation fell below the objective standard guaranteed by the constitution.  A.N.J. was also misled into believing his criminal record of the sex offense could be expunged in the future. Also,  considering the contractual constraints under which Anderson was working, the limited time he spent with his client before the plea, the fact he spent just a few minutes with A.N.J. to go over the statement on plea, A.N.J.’s prompt motion to withdraw his plea upon discovering the consequences of the plea, and defense counsel’s declaration that there was some “confusion” about when the charge could be removed and that Anderson “believed” the conviction could be removed from A.N.J.’s record when he turned 18 or 21, the court concluded that A.N.J.  has established that he was misinformed as to the consequences of his plea.

My opinion?  Justice Chamber’s introduction in this opinion says it all: “While the vast majority of public defenders do sterling and impressive work, in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance. Public funds for appointed counsel are sometimes woefully inadequate, and public contracts have imposed statistically impossible case loads on public defenders and require that the costs of experts, investigators, and conflict counsel must come out of the defenders’ own already inadequate compensation.”  State v. A.N.J. at 3.

Public defenders have tough jobs.  Period.  Many of my colleagues are public defenders.  Trust me, they’re on the battlefield every day; in the trenches, trying cases to the best of their abilities.  Unfortunately, glutted trial calendars and lack of resources stretch time/energy/resources excruciatingly thin.

I only hope this opinion gives all criminal defense attorneys, and not only public defenders, some insights into how to avoid inneffective assistance of counsel.