Monthly Archives: April 2020

Miranda & Border Detention

Bellingham Defense Attorney, Drug Offenses, Fifth Amendment, Interrogation, Miranda, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Interrogation Room - SoFlo Studio

In State v. Escalante, the WA Supreme Court held that separating a person from the normal stream of traffic and detaining them for five hours in a locked room that was inaccessible to the public or other travelers will create the type of police-dominated environment requires Miranda warnings.

BACKGROUND FACTS

In August 2017, Mr. Escalante was traveling in a van with a group of friends, heading back into Washington from Canada. They were all returning from the Shambala Music Festival in British Columbia. At the Frontier Border Crossing, patrol agents searched all vehicles coming from the festival as part of a drug enforcement operation. Escalante and his friends were directed to the secondary inspection area. Border patrol agents took their documents.

The secondary inspection lobby was an 11 x 14 foot locked room. It is not accessible to the public or other travelers. Detainees are not allowed to use the bathroom or access water without getting permission from agents and submitting to a pat-down search. Agents patted down all four men and found narcotics on the driver and one passenger, but not on Escalante or the other passenger. Agents kept all the men secured – either in the locked lobby or in the detention cells – for five hours while they searched the van.

The search uncovered drug paraphernalia and personal items containing drugs, including a backpack with small amounts of heroin and lysergic acid diethylamide (LSD). Without giving Miranda warnings, agents confronted the men with each item of drug paraphernalia and each item in which drugs were found and asked who owned it.

Escalante admitted he owned the backpack. At that time, Escalante and his companion were the only travelers in the secured lobby. Eventually, the Border Patrol Agents summoned local law enforcement and held Escalante until they arrived. These officers formally arrested Escalante and gave him Miranda warnings.

Escalante was charged in state court with possession of heroin and LSD. He moved to suppress his statement claiming ownership of the backpack because it was obtained in custody by interrogation without Miranda warnings. However, the trial court admitted Escalante’s incriminating statement. Escalante was convicted at trial. The Court of Appeals affirmed. The case eventually made its way to the WA Supreme Court.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court explained that the Fifth Amendment guarantees that individuals will not be compelled by the government to incriminate themselves. In short, the Fifth Amendment protects an individual’s right to remain silent, in and out of court, unless he chooses to speak in the unfettered exercise of his own will.

The Court also explained that in order to assure an individual freely makes the choice to talk to the police, Miranda requires that before custodial interrogation, the police inform a suspect of their right to remain silent and their right to the presence of an attorney, appointed or retained.

Evaluating the totality of the circumstances, the Court concluded that a reasonable person in Escalante’s circumstances would have felt their freedom of action was curtailed to a degree associated with formal arrest:

“Agents confiscated Escalante’s documents, routed him to a secondary inspection area, separated him from his belongings, arrested the driver of the van in which he was traveling, and detained him for five hours in a small locked lobby that was not accessible to the public or other travelers. After a lengthy detention, he was questioned using a procedure that communicated agents had found drugs and were suspicious of him. These circumstances created precisely the type of incommunicado police-dominated environment that was the concern of Miranda. We hold that Escalante was in custody and his unwarned statements should have been suppressed.”

With that, the WA Supreme Court reversed and vacated Mr. Escalante’s convictions.

My opinion? Good decision. Escalante should have been informed of his Miranda rights. Clearly, that the statements he made resulted from direct interrogation by the officers and were not spontaneous and unsolicited statements of a person who was anxious to explain.

Please contact my office if you, a friend or family member are charged with a crime after giving incriminating statement and/or undergoing a questionable search or seizure. Hiring a competent and experienced defense attorney is the first and best step toward justice.

Guilty Verdicts Must Be Unanimous

Bellingham Defense Attorney, Homicide & Manslaughter, Jury Trial, Mount Vernon Criminal Defense Attorney, Race & Law, Sixth Amendment, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

In Louisiana, you can be convicted of a serious crime by a 10-2 ...

In Ramos v. Louisiana, the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that guilty verdicts must be unanimous.

BACKGROUND FACTS

In 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But two States, Louisiana and Oregon, have long punished people based on 10-to-2 verdicts.

In this case, the defendant Mr. Ramos was convicted of second degree murder in a Louisiana court by a 10-to-2 jury verdict. Instead of the mistrial he would have received almost anywhere else, Ramos was sentenced to life without parole. He appealed his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial.

COURT’S ANALYSIS & CONCLUSIONS

Justice Gorsuch delivered the opinion of the Court, which reversed Ramos’s conviction on the basis that the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense.

First, the Court reasoned that a “trial by an impartial jury” requires that a jury must reach a unanimous verdict in order to convict.

“Juror unanimity emerged as a vital common law right in 14th-century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified . . . Thus, if the jury trial right requires a unanimous verdict in federal court, it requires no less in state court.” ~Justice Gorsuch, United States Supreme Court

Second, the Court reasoned Louisiana’s and Oregon’s unconventional jury trial schemes had a long history of being viewed as unconstitutional. It stated that jury unanimity was essential to the right to a fair trial guaranteed by the Sixth Amendment. Furthermore, research has demonstrated that a unanimous jury requirement strengthens deliberations, ensures more accurate outcomes, fosters greater consideration of minority viewpoints, and boosts confidence in verdicts and the justice system.

Finally, the Supreme Court overturned its deeply divided decision in Apodaca v. Oregon, which concluded that jury unanimity was required in federal criminal trials but not in state criminal trials. In short, the Court reasoned that modern empirical evidence and subsequent case law have undermined Apodaca’s reasoning and conclusions.

My opinion? The Court’s decision was a major victory for protecting the rights of criminal defendants. The Court recognized that jury unanimity has historically been an essential element of the Sixth Amendment right to an impartial trial by jury in criminal cases. Also, the potential impact of Ramos v. Louisiana extends far beyond issues of criminal procedure, as the justices’ spirited debate over when and whether to overturn precedent took center stage and illustrated deep divisions within the Court.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an experienced and competent criminal defense attorney is the best step toward justice.

Some Crimes Decreasing Amid COVID-19

Bellingham Defense Attorney, Coronavirus, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Uncategorized, Whatcom County Criminal Defense, , , , ,

Coronavirus Quarantines Spark Drop in Crime – for Now | National ...

Great article in Bloomberg by Chris Dolmetsch, Edvard Pettersson and Christopher Yasiejko reports that in the largest U.S. cities, crime has dropped since the Coranavirus Pandemic.

In short, car thefts and store robberies are spiking in some municipalities even as crime overall — especially violent offenses — dropped in 10 of the 20 most populated cities, more than halving in San Francisco alone, according to data analysis from 10 major cities.

“It’s just a reflection of reduced opportunities for these kind of events,’’ said Daniel Nagin, a criminologist and professor of public policy at the H.J. Heinz School of Public Policy and Management at Carnegie Mellon University in Pittsburgh. “In the case of murders, these often occur in public places in bars and things like that. With those kinds of activities shut down there’s less social interaction.

Car theft is surging New York city, up 49% for the week ended April 12 as compared to the same period a year earlier. It’s risen 53% over the past month and more than 63% year to date. Car theft was the only major crime to show an increase in Los Angeles, rising 11.3% for the the 28 days ending April 11 from the previous period.

Burglaries are also on the rise in New York, up 26% year-to-date as compared to the same period in 2019. In the week ended April 12, they more than doubled in the southern half of Manhattan, where many stores are now unoccupied. Burglaries jumped almost 34% in Denver in March amid a growing number of break-ins at marijuana dispensaries. In Philadelphia, burglaries were down 6.7% overall, with residential break-ins falling 25% as more people stay home, but unoccupied businesses were hit hard, with commercial burglary rising 71%.

Robberies and burglaries dropped more dramatically in Los Angeles than some other major U.S. cities, perhaps because it closed non-essential businesses and told people to stay at home earlier than other cities, said Charis Kubrin, a professor of criminology at the University of California, Irvine.

“Property crimes are crimes of opportunity and with most businesses closed, there are simply fewer opportunities.” ~Charis Kubrin, Professor of Criminology

Each of the 10 major cities that provided data are showing a decline in rapes and sexual assaults, with San Francisco posting the biggest drop — more than 50% — as compared to the same period a year earlier.

For the most part, murders are on the decline, and in cities showing a rise the numbers are low to begin with. A 25% increase in Austin, for example, is the result of one additional homicide, with the number rising from four to five.

“There are fewer opportunities for young people to get together . . . So there’s less chance when there’s alcohol involved for arguments to get out of hand and to result in assaults or homicides.” ~Charis Kubrin, Professor of Criminology

According to the article, most cities are showing a decline in assaults, following the trend in other violent-crimes categories. Notably, the drop-off comes even after the release from prison of thousands of non-violent offenders. That may show that many such offenders need not have been put in jail to start with.”

Theft is also down across the board in the cities surveyed.  But Kubrin said the drop in street crime may be followed by an increase in white-collar crime, such as price gauging and online fraud. “Opportunities have shifted from the street to online,” she said.

Please contact my office if you, a friend or family member face criminal charges. Hiring a competent and experienced criminal defense attorney is the first and best step toward justice.

DUI & Opinion Evidence

Bellingham Defense Attorney, Constitutional Rights, Drug Recognition Expert, DUI, Motions In Limine, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Nunez trial Day 3: El Paso cops, arson investigator, medical ...

In City of Seattle v. Levesque, the WA Court of Appeals held that a police officer, who is not a Drug Recognition Expert (DRE), may not give an opinion on whether the defendant was guilty of DUI.

BACKGROUND FACTS

On April 29, 2015, the Seattle Police Department dispatched Officers Hinson and Officer Coe to the scene of an automobile accident involving two vehicles. Levesque had failed to stop his vehicle prior to hitting the vehicle in front of him. The accident caused moderate to severe damage, and Levesque’s vehicle could not be driven.

Officer Hinson placed Levesque under arrest for DUI.

Although Officer Hinson had received training in field sobriety tests (FSTS), he did not perform any FSTs at the scene because of Levesque’s symptoms, the absence of any alcohol smell, and the location of the accident and corresponding impracticability of FSTs. Officer Hinson did not perform a horizontal gaze nystagmus (HGN) test for signs of impairment. Officer Hinson, who is not DRE certified, testified that he attempted to contact a DRE by radio, but no DRE was available.

For those who don’t know, a DRE  is a police officer trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol.

After arresting Levesque, Officer Hinson transported Levesque to Harborview Medical Center, where he had his blood drawn. The drug analysis results showed that Levesque’s blood contained 0.14 milligrams per liter (mg/L) of amphetamine and 0.55 mg/L of methamphetamine. The City charged Levesque with DUI.

Before trial, Levesque moved in limine to exclude any testifying officer’s opinion on ultimate issues. The trial court granted the motion but ruled that an officer could state “in his opinion, based upon the totality of the circumstances, that Levesque was impaired.” The trial court also granted Levesque’s additional motion to exclude officers as experts but declared that an officer—testifying as a lay witness—could “certainly testify to what he objectively observed during the investigation.”

Officer Hinson testified that through his training and experience Levesque showed signs as possibly being impaired by a stimulant. When asked to opine as to whether Levesque was impaired by drugs, Officer Hinson testified that his opinion was that Levesque was definitely impaired at the time of the accident.” Levesque objected to Officer Hinson’s testimony and requested a mistrial outside the presence of the jury following a lunch recess. The court overruled Levesque’s objections.

Also at trial, Levesque offered an alternative theory for his perceived impairment. Levesque’s defense theory was that he was prescribed medication for injuries which explain his behavior. In support of this defense, Levesque presented testimony from his physician about treatment and prescriptions that she gave Levesque prior to the accident, her diagnoses, and Levesque’s symptoms.

The jury convicted Levesque of driving while under the influence. Levesque appealed his conviction to the superior court, which reversed based on Officer Hinson’s opinion testimony. The city of Seattle (City) appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that opinion testimony must be deemed admissible by the trial court before it is offered. Opinion testimony may be admissible under ER 701 as lay testimony or ER 702 as expert testimony. However, when opinion testimony that embraces an ultimate issue is inadmissible in a criminal trial, the testimony may constitute an impermissible opinion on guilt. Furthermore, impermissible opinion testimony regarding the defendant’s guilt may be reversible error.

Here, the opinion testimony at issue consists of Officer Hinson’s statements that Levesque showed signs and symptoms of being impaired by a specific category of drug – i.e., a CNS stimulant – and that Levesque was “definitely impaired” at the time of the accident.

“We conclude that because Officer Hinson was not a drug recognition expert (DRE) and lacked otherwise sufficient training and experience, he was not qualified to opine that Levesque showed signs and symptoms consistent with having consumed a particular category of drug.” ~WA Court of Appeals

Furthermore, the Court of Appeals reasoned that because the officer’s opinion that Levesque was “definitely impaired” constituted an impermissible opinion of Levesque’s guilt, the trial court’s admission of that testimony violated Levesque’s constitutional right to have the jury determine an ultimate issue. Finally, because Levesque presented an alternative theory for his behavior, the City did not establish beyond a reasonable doubt that any reasonable jury would have convicted Levesque. “Therefore, we affirm the superior court’s reversal of Levesque’s conviction,” said the Court of Appeals.

My opinion? Excellent decision. And excellent work on behalf of his defense attorney. They did a great job of making a record for not only trying to suppress the officer’s opinion evidence during motions in limine, but also for properly objecting at the right time and preserving the issue for appeal when the officer unlawfully offered the opinion testimony.

Under Evidence Rule 704, witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions. This is because testimony from witnesses on these issues is not probative and is, in fact, prejudicial to criminal defendants. Good opinion.

Please contact my office if you, a friend or family member are charged with DUI. Hiring a competent and experienced criminal defense attorney who is well-versed on pretrial motions and the rules of evidence is the first and best step toward justice.

Nearly 1,000 Inmates To Be Released In Washington State

ACLU, Bellingham Defense Attorney, Coronavirus, Jail, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Virginia begins releasing new data about COVID-19 in prisons

Apparently, Gov. Jay Inslee announced that Washington state intends to release up to 950 inmates confined in Washington state prisons — a reduction of about 6 percent, based on 2019 inmate numbers — to stop a potential widespread outbreak of COVID-19 in the prison.

Inslee and the Washington State Department of Corrections released their emergency plan to keep inmates safe from COVID-19 on Monday, after a back-and-forth of lawsuit responses between the state and Columbia Legal Services.

Columbia Legal Services had filed a petition in April, with the Washington Supreme Court on behalf of incarcerated petitioners. It called for the prompt release of thousands of prisoners to prevent the further spread of Covid-19 behind bars.

As of April 10, 2020, the department has tested 237 inmates and has had 179 negative results, 8 positive results. Fifty test results are pending. According to the department of corrections, the people tested have been isolated. As of April 10, 161 inmates remain in isolation. Another 912 others are in quarantine.

Jaime Hawk, of the ACLU’s Washington Campaign for Smart Justice, called the plan a helpful first step, but said it doesn’t remove the dangers of Covid-19 for incarcerated people in Washington state.

“We urge the governor and the Department of Corrections to do more to reduce state prison populations, which is the only way to follow the advice of public health experts and keep those living and working in our correctional facilities safe.”  ~Jaime Hawk, ACLU

The state’s plan will target people for release who are:

• Non-violent inmates, both vulnerable and non-vulnerable, who have a release date within 75 days.

• Non-violent inmates and vulnerable inmates who have a release date in 2 to 6 months. They will be released through a re-entry planning process.

• Non-violent inmates and vulnerable inmates who have a release date in 6 to 8 months, with an approved release plan.

• Non-violent inmates who were jailed for lower level supervision violations

• Non-violent inmates who are already on work release and can be freed through the secretary’s furlough authority.

Please read my Legal Guides titled Making Bail and Quash Your Bench Warrant and contact my office if you, a friend of family member find themselves stuck in jail or prison during the Coronavirus Pandemic.

Entrapment & Sex Crimes

Bellingham Defense Attorney, Constitutional Rights, Entrapment, Ineffective Assistance, Jury Instructions, Juvenile, law enforcement, Mount Vernon Criminal Defense Attorney, Promoting Prostitution, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Online sting was 'clear case of entrapment:' lawyer | CTV News

In State v. Johnson, the WA Court of Appeals held that a Defendant cannot claim Entrapment for numerous attempted sex offenses by responding to a fake Craigslist add in the “Casual Encounters” section created by police officers conducting an online sting operation.

BACKGROUND FACTS

Law enforcement created a posting in the Craigslist casual encounters section. Mr. Johnson responded to the ad. His communications with the (as-yet-unknown) police led Mr. Johnson to believe the add was posted by a 13-year-old female named “Brandi” who was home alone. Mr. Johnson was instructed to drive to a minimart and await further instructions via text. Johnson drove to the designated minimart. “Brandi” then gave Johnson the address of the house and he drove toward that location. Law enforcement apprehended Johnson while on his way from the minimart to the house. At the time of his arrest, Johnson was carrying forty dollars.

Johnson was charged with (1) attempted second degree rape of a child, (2) attempted commercial sexual abuse of a minor, and (3) communication with a minor for immoral purposes. During trial, he requested the Entrapment Defense via a jury instruction. However, the trial judge denied Johnson the defense and jury instruction. The jury found him guilty of all charges.

Johnson appealed, claiming ineffective assistance of counsel and that the trial judge erred by denying the Entrapment defense.

COURT’S ANALYSIS & CONCLUSIONS

The court explained that in order to prove the affirmative defense of entrapment, a defendant must show, by a preponderance of the evidence, that he committed a crime, that the State or a State actor lured or induced him to commit the crime, and that the defendant lacked the disposition to commit the crime. A defendant may not point to the State’s absence of evidence to meet his evidentiary burden for an affirmative defense. Importantly, as a matter of law, the Court also stated the following:

“Entrapment is not a defense if law enforcement merely afforded the actor an opportunity
to commit a crime.”

“Here, Johnson points to no evidence to support an entrapment instruction,” reasoned the Court. Here, law enforcement created a Craigslist posting purporting to be a woman looking for a man to teach her how to be an adult. This add, however, was not entrapment on the part of police. The add merely presented an opportunity for Mr. Johnson to incriminate himself and commit a crime:

“Johnson initiated contact by answering the posting. Johnson testified that no one forced him to answer the posting. Although Johnson stated he wanted to be cautious because ‘Brandi’ was underage, he steered the conversation into explicitly sexual territory by graphically explaining his sexual desires to the purported thirteen-year-old. When ‘Brandi’ suggested meeting at a later time, Johnson declined, stating that he was available to meet. There is no evidence that law enforcement lured or induced Johnson.”

The court also rejected Johnson’s argument that he was entitled to an entrapment instruction because the State failed to show he had a predisposition to commit the crimes against children, and there was no evidence of a history regarding perverse activity towards children.

“But pointing to the State’s absence of evidence does not meet Johnson’s evidentiary burden for his affirmative defense,” said the Court. Instead, explained he Court, the evidence shows that law enforcement merely afforded Johnson the opportunity to commit his crimes. Johnson willingly responded to the posting, steered the conversation to explicitly sexual topics, testified that he wanted to meet the person, and drove to the agreed locations.

The Court of Appeals concluded that because Johnson failed to show any evidence entitling him to a jury instruction on entrapment, the trial court did not err by refusing to instruct the jury on entrapment. The court also denied Mr. Johnson’s claims of ineffective assistance of counsel.

My opinion? Entrapment is a very difficult defense to prove under these circumstances. Law enforcement officers are allowed to engage in sting operations, whereby they create circumstances that allow individuals to take criminal actions that they can then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment and involves merely the temptation to violate the law, not being forced to do so.

Please contact my office if you, a friend or family member face sex offenses and Entrapment could be a substantive defense. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Investigative Stop

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Probable Cause, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Terry Stop, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Police are searching far fewer cars in states that have legalized ...

In Kansas v. Glover, the United States Supreme Court held that a police officer’s investigative traffic stop made after running the vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment. 

BACKGROUND FACTS

A Kansas deputy sheriff ran a license plate check on a pickup truck, discovering that the truck belonged to respondent Glover and that Glover’s driver’s license had been revoked. The deputy pulled the truck over because he assumed that Glover was driving. Glover was in fact driving and was charged with driving as a habitual violator.

He moved to suppress all evidence from the stop, claiming that the deputy lacked reasonable suspicion. The District Court granted the motion, but the Court of Appeals reversed. The Kansas Supreme Court in turn reversed, holding that the deputy violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity.

COURT’S ANALYSIS & CONCLUSIONS

Justice Thomas delivered the majority opinion for the Court.

His ruling states that an officer may initiate a brief investigative traffic stop when he has a particularized and objective basis to suspect legal wrongdoing. The Court reasoned that the level of suspicion required is less than that necessary for probable cause and depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

“Courts must therefore permit officers to make commonsense judgments and inferences about human behavior.” ~Justice Thomas, U.S. Supreme Court

“Here, the deputy’s commonsense inference that the owner of a vehicle was likely the vehicle’s driver provided more than reasonable suspicion to initiate the stop,” reasoned Justice Thomas. Though common sense suffices to justify the officer’s inference, empirical studies demonstrate that drivers with suspended or revoked licenses frequently continue to drive. “And Kansas’ license-revocation scheme, which covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive, reinforces the reasonableness of the inference that an individual with a revoked license will continue to drive,” said Justice Thomas.

The Court said scope of its holding is narrow. “The reasonable suspicion standard takes into account the totality of the circumstances,” said the Court. “The presence of additional facts might dispel reasonable suspicion, but here, the deputy possessed no information sufficient to rebut the reasonable inference that Glover was driving his own truck.”

With that, the U.S. Supreme Court reversed and remanded The Kansas Supreme Court’s decision that the deputy violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity.

My opinion? The Supreme Court’s decision is not surprising. And in truth, it’s consistent with existing Washington precedent.  In State v. McKinney, and State v. Phillips, the WA Court of Appeals held that a vehicle may be stopped based upon DOL records which indicate that the driver’s license of the  registered owner of the vehicle is suspended.  The officer need not affirmatively verify that the driver’s appearance matches that of the registered owner before making the stop, but the Terry stop must end as soon as the  officer determines that the operator of the vehicle cannot be the registered owner.

Please contact my office if you, a friend or family member are charged with crimes after a questionable search and seizure. Hiring a competent attorney is the first and best step toward gaining justice.

“You’re In Contempt!”

Bellingham Defense Attorney, Contempt of Court, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft of Motor Vehicle, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Contempt of Court and Child Custody - TDC Family Law

In State v. Dennington, the WA Court of Appeals held that a criminal defendant who responded inappropriately to the judge after the judge scolded him for making an inappropriate reference to the prosecutor’s personal appearance was properly found in contempt.

BACKGROUND FACTS

The State charged Dennington with multiple offenses related to vehicle theft. To ensure sufficient time to conduct witness interviews, defense counsel filed a motion to continue Dennington’s trial date, which the court granted over Dennington’s personal objection.

At the close of this discussion, Dennington made a reference to the prosecutor’s personal appearance, stating that “she needs to lose weight somehow.”

The defendant’s comment prompted the following hostile verbal exchange between the judge and defendant, who turned his back and walked away at least two times during their exchange:

The Court: Let’s go. Sir, you need to watch your conduct in my courtroom. Come back here.
Defendant: I don’t respect you. I don’t respect the court.
The Court: I got it—
Defendant: I don’t respect the liars that you entertain in your court.
The Court: But your conduct in my courtroom is important.
Defendant: Do something about it. I don’t care about that.
The Court: All right, I’m going to find you in contempt of court, sir.
Defendant: Thank you.
The Court: I’m going to add 30 days to your sentence, whatever it may be.
Defendant: Add it to my sentence. I’m not guilty.
The Court: You need to do an order on that.
Prosecutor: Thank you, your Honor.
Defense Counsel: Your Honor, I’ll just—
The Court: It wasn’t to his sentence. You may note your objection, but your client’s conduct in this courtroom is unacceptable, so he’s got 30 days in contempt of court.

Dennington later pled guilty to two counts of taking a motor vehicle without permission in the second degree.  Dennington appealed from the order holding him in contempt of court. On appeal, he argued that the contempt order must be reversed because (1) his actions did not constitute contempt of court under RCW 7.21.010, and (2) he was never given the statutorily required opportunity to speak in mitigation after the trial court held him in contempt.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by describing the statute defining Contempt of Court. Contempt of court is defined as intentional (a) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceedings; (b) Disobedience of any lawful judgment, decree, order, or process of the court; (c) Refusal as a witness to appear, be sworn, or, without lawful authority, to answer a question; or (d) Refusal, without lawful authority, to produce a record, document, or other object.

Also, the court found that the Contempt of Court statute requires that “the person committing the contempt of court shall be given an opportunity to speak in mitigation of the contempt unless compelling circumstances demand otherwise.

“This is so because the opportunity to mitigate does not enable the contemnor to avoid the finding of contempt but, rather, permits a contemnor to apologize for, defend, or explain the misconduct that the court has already determined constitutes contempt in an effort to mitigate the sanctions to be imposed,” said the Court, citing Templeton v. Hurtado. 

Here, the Court of Appeals reasoned that the judge properly found the defendant in contempt of court:

“Dennington’s actions—rudely commenting on the prosecutor’s physical appearance and, when admonished to adjust his behavior, turning his back on the judge and explicitly and rudely telling the judge that he did not respect the court or others involved in his case—plainly presented a direct threat to the authority and dignity of the court and to maintaining proper decorum during court proceedings . . . Dennington’s behavior, left unaddressed, could have encouraged others to similarly disrespect the court or similarly disrupt proceedings.”

However, the Court of Appeals also ruled that Mr. Dennington was denied his statutory right to speak in mitigation of his contempt. “Second, the court never asked Mr. Dennington if he had anything he wished to say to mitigate his contempt, said the Court of Appeals. “Following the summary contempt finding, the court was statutorily required to offer Dennington the opportunity to allocute in mitigation of his contempt before imposing sanctions. Here, the court erred by not doing so.”

With that, the Court of Appeals affirmed the finding that Dennington was in contempt, yet reversed the sanction imposed.

My opinion? Granted, it’s difficult for many defendants to be under the authority of a judge’s decision. However, respecting the judge is a necessary formality and like most formalities, it has very real purposes. Whether you actually respect the judge is irrelevant. At the end of the day, the judge is the one calling the shots. Therefore, it is symbolically important for everyone to make a showing of deference at the outset of the proceedings.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an experienced attorney is the first and best step toward gaining justice.

Jail Populations Are At Risk For Spreading CV-19

Bellingham, Coronavirus, Jail, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , , ,

The 5 Worst Prisons On Earth: Step Inside A Living Hell

Great article by Anna Flagg and Joseph Neff of the Marshall Project says describes how jail populations are potentially risky environments for transmitting COVID-19.

For jails across the country, the churn of people moving in and out threatens to accelerate the spread of the disease, endangering the incarcerated, the staff and the larger community.

Analysis of a database of county- and jurisdiction-level jail populations built by the Vera Institute of Justice shows the short-term flow of people through local facilities, including some who were admitted more than once, for an average week in 2017 (the most recent year with available data). Apparently, in a given week, more than 200,000 people are booked into jails across the country; roughly the same number walk out every week.

Thankfully – and according to the article – some states and jurisdictions have responded by releasing prisoners or cutting jail time.

“Jails are transient,” say the authors. “Most there have been charged with crimes but not convicted. Many are waiting to pay bail to be released until trial or can’t afford bail. The rest have misdemeanor convictions with sentences counted in months instead of years.”

Preventing the spread of the virus in jails is challenging. Social distancing is crucial, but it’s virtually impossible in dormitories with rows of beds in a common room. The same is true of two people in a single cell, or group showers or bathrooms that serve dozens. All these dangers escalate when jails are overcrowded, filthy or understaffed.

Making matters worse, physical contact between staff and the incarcerated is often unavoidable: Officers fingerprint, handcuff and supervise prisoners, as well as escort them to court and drive them to medical appointments. Many other people also flow in and out of jails, like family members who visit; volunteers who counsel or teach or preach; contractors who stock vending machines; and lawyers who meet their clients. Many jails have cut much of that traffic in response to coronavirus by limiting visits, services and vendors, and by moving to online and phone communication.

The authors say that the Centers for Disease Control and Prevention, the American Correctional Association and other groups offer guidance for corrections departments on containing the virus: Start frequent temperature screenings; take oral medical histories; limit visitors and vendors; increase cleaning; restrict movement; create spaces for isolating; coordinate with health providers; and plan for possible staff shortages.

The authors also suggest “de-densifying” our jails by reducing bookings and accelerating releases, something over which sheriffs have limited control.

My opinion? Desperate times call for desperate measures. Perhaps persuading judges to set low bond amounts and minimal conditions of pretrial release is a good starting point. Police officers can be persuaded to make mindful decisions when they decide whether to arrest and book a person into jail, or issue a citation with a court date. For the most part, it’s advisable that police officers simply write citations for misdemeanors except for drunken driving and domestic violence charges.

Please read my Legal Guides titles, Making Bail and Quash Your Bench Warrant and contact my office if you, a friend or family member are jailed and incarcerated during this time of CV-19 outbreaks. And hiring an experienced, effective attorney is the best step toward making that happen. Getting out of jail is a huge priority.