Monthly Archives: May 2010

Yes, Crime Is Down . . . But For How Long?

Assault, Domestic Violence, felony, Homicide & Manslaughter, Rape, Studies, Violent Crime, Whatcom County Criminal Defense, , ,

Interesting Article . . .

http://www.bellinghamherald.com/2010/05/24/1446000/fbi-says-violent-crime-rate-down.html

My opinion?  That’s good news.  It debunks any theories that economic recessions leads to increased crime rates.  I, for one, haven’t seen a dramatic increase in crime – except for maybe low-level street drugs like heroin – since the recession hit.  Still despite the succesful efforts of law enforcement’s endeavors, we should not be too quick to pat ourselves on the back. In the article, Northeastern University criminology professor James Alan Fox said, “We have increasing numbers of at-risk youth in the population, and they need services. We need to reinvest in crime prevention or else the good news we see today could evaporate.” (emphasis supplied).
True.  These sentiments were also mentioned by Whatcom County Superior Court Judge Snyder in a feature article I wrote for the Whatcom County Bar Association newsletter.  In Burning the Candlestick at Both Ends: Threadbare Judicial resources & Increased Court Litigation Gives Us Opportunity to Influence Change, I interviewed Judge Snyder.  He believes that although the decreased criminal filings trend is a result of the work done in Juvenile Court within the last few years, this positive trend could reverse.
“The Juvenile Justice Center and Probation have made a significant difference in the number of kids brought in on juvenile charges,” said Judge Snyder.  “The reality is, my sense of it, they’re doing really intensive work with the kids and having a lot of success with them while tehy’re still juveniles.  And I think its been going on long enough now that we’ve started seeing the impacts.  Fewer juveniles are graduating to become adult criminals.  they’re charged fewer times and less often.  And the risk we run is that this budget cycle has made it very difficult to maintain those services.  Juvenile court has taken a substantial hit.  If that happens, those gains may be lost very quickly, and we’ll be back with increased filings in a short period of time.”
The bottom line is this: although we have decreased crime rates, this positive trend will cease if we discontinue investing in juvenile courts.  Period.

State v. Sublett: Defendant’s Right to be Present at Trial DOES NOT Extend to Questions Submitted by Jury and Answered in Judge’s Chambers

Constitutional Rights, Due Process, felony, Homicide & Manslaughter, Washington Supreme Court, , ,

Bad taste in my mouth.

An in-chambers conference held by the trial judge in response to a question the jury submitted during its deliberations did not violate the defendant’s his right to an open and public trial or the defendant’s right to be present. In general, in-chambers conferences between the court and counsel on legal matters are not critical stages of the proceedings except when the issues involve disputed facts.

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=380340MAJ

A jury entered verdicts finding co-defendants Michael Sublett and Christopher Olsen guilty of first degree murder.  Sublett and Olsen appealed, asserting that the trial court violated their public trial rights and their right to be present by holding an in-chambers conference to address a question submitted by the jury during its deliberations and that the trial court violated their due process rights by refusing to answer the jury’s question.

The Court reasoned that The Sixth Amendment guarantees criminal defendants the right to a public trial.   However, the court also determined that “[a] defendant does not . . . have a right to a public hearing on purely ministerial or legal issues that do not require the resolution of disputed facts.”

Here, the trial court’s in-chambers conference addressed a jury question regarding one of the trial court’s instructions.  This was a purely legal issue that arose during deliberations, and did not require the resolution of disputed facts.  Thus, the defendants’ right to a public trial did not apply in this context.  More important, questions from the jury to the trial court regarding the trial court’s instructions are part of jury deliberations and, as such, are not historically a public part of the trial.  Because the public trial right does not apply to a trial court’s conference with counsel on how to resolve a purely legal question  which  the jury submitted during its deliberations, we hold that the trial court did not violate the appellants’ public trial right by responding to the jury’s question in writing.

The court further reasoned that because the in-chambers conference held in response to a jury question was not a critical stage of the proceedings, the trial court did not violate the appellants’ right to be present.  A “critical stage” is one where the defendant’s presence has a reasonably substantial relationship to the fullness of his opportunity to defend against the charge.   But in general, in-chambers conferences between the court and counsel on legal matters are not critical stages of the proceedings except when the issues involve disputed facts.   The in-chambers conference here was not a critical stage of the proceedings because it involved only the purely legal issue of how to respond to the jury’s request for a clarification in one of the trial court’s instructions.  Accordingly, the appellants’ right to be present did not apply in this context.

My opinion?  Shady.  I’ve tried cases where jurors asks/submits questions to the judge while they deliberate.  Typically, the judge reads the question on the record, and in the defendant’s presence.  The attorneys and judge either formulate an agreed answer the question or choose to not answer the question.  In my mind, this is an important stage of the proceedings.  jurors decide guilt and innocence based upon the answer to the question!  How is this not important?  Why shouldn’t the defendant be present to hear the question and answer(s)?

Again, shady.  this decision flies in the face of the WA Supreme Court’s State v. Paumier, a case which I blogged about earlier this month.

Graham v. Florida: Court Strikes Down “Cruel & Unusual” Sentencing on Minor

Burglary, Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Juvenile, United States Supreme Court, , ,

I like this . . .

It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on “cruel and unusual” punishment.

http://www.supremecourt.gov/opinions/09pdf/08-7412.pdf

Petitioner Graham was 16 when he committed armed burglary and another crime.  under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt.  Subsequently, the trial court found that Graham violated the terms of his probation by committing additional crimes.  The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the Burglary.  Because Florida abolished its parole system, the life sentences left Graham no possibility of release.  He challenged his sentence under the Eighth Amendment’s Cruel and Unusual Punishment Clause.

The U.S. Supremes sided with Graham, and reasoned the inadequacy of penological theory to justify life without parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that Graham’s sentence was cruel and unusual.  Morever, defendants who do not kill, or foresee that life will be taken are less deserving of such punishments than are murderers.  Finally, the court reasoned that serious nonhomicide crimes may be devastating in their harm, but in terms of moral depravity and the injury to the person and to the public, they cannot be compared to murder in their severity.

My opinion?  The U.S. Supremes made the right decision.  It seems Draconian to impose a life sentence on a minor who committed a non-homicide crime.  Period.

Speeders On Strapped Cities’ Radar

law enforcement, police, Privacy, Terry Stop, Traffic Infractions, Washington State Patrol, , ,

Finally, the truth is revealed . . .

http://articles.moneycentral.msn.com/Insurance/InsureYourCar/speeding-youll-pay-higher-taxes.aspx

Forget about traffic safety: in reality, traffic citations are a revenue-builder for municipalities undergoing the brunt of a deteriorating economy, budget cuts and layoffs.

“We were facing layoffs, and we were trying to think outside the box,” says Police Chief Dean McKimm of Canton County. “I’ll be very blunt about that: It does save jobs. It was kind of a no-brainer.”

Other cities & counties know there’s a lot of money to be made in stepped-up traffic enforcement:

  • In January, Georgia’s new “superspeeder” law kicked in. Get caught going 85 mph or more on a four-lane road in the Peach State and you’ll pay $200 on top of the regular ticket, which is often well more than $100. You’ll do the same if you go 75 mph or more on a two-lane road. Authorities said it filled a niche between regular speeding and reckless-driving violations. In February, superspeeder tickets totaled 1,084. Tennessee is considering a similar law.
  • A Colorado law that went into effect in 2009 doubled fines for speeding (the supporting information noted it would raise about $12 million annually for the strapped state). Another law has made speed guns mandatory in road-work zones.
  • In 2009, California added a $35 assessment to all traffic violations to help renovate 41 courthouses statewide. You’ll pay even if the courthouse where you show up to pay the ticket isn’t getting so much as a coat of paint.
  • The Massachusetts Turnpike Authority said it would collect an additional $1.2 million in fines from speeding tickets in 2008 to make up for lost revenue when troopers from the Massachusetts State Police were transferred the previous year to work around Boston’s “Big Dig” project.

It’s a horrible epidemic.  I’ve started a new ticket promo: if you obtain a speeding infraction from the Whatcom County Sheriff or the City of Bellingham, I WILL RESOLVE YOUR CASE WITH A DISMISSAL FOR $1 LESS THAN THE FINE.

From me to you, with love . . .

State v. Paumier: Court Upholds the Right to Public Trial & Self-Representation

Burglary, Constitutional Rights, Due Process, felony, Jury Trial, Theft, Washington Court of Appeals, , ,

Good case.  WA Court of Appeals reversed Rene Pedro Paumier’s convictions because the trial court improperly (1) excluded public citizens from a portion of his trial, and (2) denied his right to represent himself.

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=363461MAJ

Mr. Paumier was charged with Burglary and Theft.  Jury selection involved questioning jurors in chambers and recording their responses.  The public was not allowed to watch jury selection.  The trial court stated at the outset that potential jurors who preferred to answer questions privately to avoid possible embarrassment would be taken into the judge’s chambers.  Several jurors indicated during the course of voir dire that they preferred to answer certain questions in chambers.  The judge and the parties questioned five jurors in chambers, recording the jurors’ responses. Jury selection was completed that same day.

The following day, the trial court permitted the State to amend the information.  Paumier then pleaded not guilty and asked to represent himself, stating:

I just don’t feel like a — I feel like there’s [sic] things about the trial getting this far
that it shouldn’t have.  And I feel that my attorney should have spoke [sic] up for
me instead of getting pissed off at me in court.  And I just don’t feel like he’s
doing his job like he should.  I don’t feel it should have gotten this far, and I’d just
rather present my, you know, case myself.

His request was denied because the lower court decided that it came too late.

The WA Court of Appeals reasoned, however, that Paumier’s right to a public trial was violated when the court allowed the jurors to be questioned privately in chambers.  The guaranty of open criminal proceedings extends to voir dire.  Additionally, the recent U.S. Supreme Court’s Presley v. Georgia makes it clear that court room closures should be rare and the court must consider alternatives prior to closing the court room.

The trial court also abused its discretion when it denied the defendant his request to represent himself at trial.  Here, there was no request for continuance, and the defendant’s request was clear.  There was no evidence that trial would have been delayed, or that granting his request would have impaired the administration of justice.

 My opinion?  Good decision.  Kudos to the defendant for stating, on the record, his preference to represent himself after the judge and attorneys conducted voir dire in chambers, and away from the public eye.  Mr. Paumier correctly followed his instincts.  I hope Mason County learns a lesson.