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State v. Nason: “Automatic Jail” Held Unconstitutional

Burglary, Constitutional Rights, Due Process, felony, Jail, Washington Supreme Court, , ,

N.H. Judges Illegally Jail Poor People Who Can't Pay Fines

In State v. Nason, the WA Supreme Court decided that imposing “auto jail” on defendants who can’t pay their legal financial obligations violates due process.

In July 1999, James Nason pleaded guilty to one count of second degree burglary.  He largely failed probation and neglected paying court fines.  At numerous times, he was sentenced to jail for these failures.   In July 2006, he was charged and sentenced with another crime.  The court ordered Nason to serve 60 days in jail.  Additionally, the order included an auto-jail provision; which said that if he failed to pay court fines by a certain date, he had to either request a stay or book himself into jail.

The WA Supremes held due process requires that a court inquire into a defendant’s ability to pay legal financial obligations (LFO’s) at the time it incarcerates the defendant for failure to pay.  In short, “auto jail” violates due process.

The court’s reasoning was simple:

Due process prevents the jailing of an offender for failure to pay a fine if the offender’s failure to pay was due to his or her indigence/poverty.  However, if an offender is capable of paying but willfully refuses to pay, or if an offender does not “make sufficient bona fide efforts to seek employment or borrow money in order to pay,” the State may imprison the offender for failing to pay his or her LFO.  The burden is on the offender to show that his nonpayment is not willful.

Although the offender carries the burden, due process still imposes a duty on the court to inquire into the offender’s ability to pay.  Inquiry into the offender’s ability to pay comes at “the point of collection and when sanctions are sought for nonpayment.”

Here, Because due process requires the court to inquire into  Nason’s reason for nonpayment,  and because the inquiry must come at the time of the collection action or sanction, ordering Nason to report to jail without a contemporaneous inquiry into his ability to pay violated due process.

My opinion?  The Supremes exercised sound reasoning.  It violates due process to impose immediate jail if defendants cannot pay future court fines.  The decision to impose jail is a question which should be decided at a future time.  Jail should not be imposed because of some future-retroactive court condition.  Period.  Good decision.

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

Racial Disparities In Jury Selection Still Exist

Constitutional Rights, Due Process, Jury Trial, Race & Law, Studies, , ,

How racism shapes jury selection - Vox

Racial exclusion in jury selection is still common, according to a study of practices in southern states.

In courtrooms across the United States, people of color are dramatically underrepresented on juries as a result of racially biased use of peremptory strikes,” the report by the Alabama-based Equal Justice Initiative (EJI) stated. “This phenomenon is especially prevalent in capital cases and other serious felony cases. Many communities have failed to make juries inclusive and representative of all who have a right to serve.”

The staff of the EJI looked closely at jury selection procedures in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee.  they uncovered shocking evidence of racial discrimination in jury selection in every state.  They identified counties where prosecutors excluded nearly 80% of African Americans qualified for jury service.  They discovered majority-black counties where  capital defendants nonetheless were tried by all-white juries.  And they found evidence that some prosecutors employed by state and local governments were actually trained to exclude people on the basis of race on how to conceal their race bias.

In many cases, people of color were not only excluded, but also denigrated and insulted with pretextual reasons intended to conceal race bias.  African Americans were excluded because they appeared to have “low intelligence”; wore eyeglasses, were single, married, or separated; or were too old for jury service at age 43 or too young at age 28.  They were barred for having relatives who attended historically black colleges; for the way they walk; for chewing gum; and frequently, for living in predominantly black neighborhoods.

My opinion?  Batson v. Kentucky was supposed to eliminate race-based jury selection.  However, it appears the specter still exists.  It’s unbelievable to me ho today’s “race-neutral” explanations and the tolerance of racial bias by court officials has made jury selection for people of color a hazardous venture, where the sting of exclusion is accompanied by painful insults and injurious commentary.

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

Domestic Violence Brutality Increasing in Whatcom County

Assault, Bellingham, Bellingham Defense Attorney, Domestic Violence, felony, Jail, law enforcement, misdemeanor, police, Studies, , ,

Domestic violence is now out in the open but the figures show just how endemic it is

It appears DV cases are increasing in Whatcom County. An unprecedented series of domestic-violence slayings in the last 15 months has set off alarms across the county and left community leaders scrambling to gauge the problem’s extent and root causes.
The Bellingham Police Department and the Whatcom County Sheriff’s Office handle the majority of domestic-violence assaults in the county.  Although both agencies had an overall decrease in the number of such assaults per capita reported to them since 2004,
Sheriff Bill Elfo says the severity of the crimes have, in fact, increased.
Some other interesting facts:
* Whatcom County law enforcement agencies have investigated eight deaths believed to be related to or caused by domestic violence since March 2009.
* Workers in victim-care agencies confirmed the trend of increasing violence.
* The number of women and children who stayed at least one night in the shelter’s 18 beds increased by 17 percent from 2008 to 2009, according to agency statistics.
* Calls to Womencare’s helpline increased 28 percent last year.
Why has the problem increased?  The article cites the poor economy adding to the problem and hampering criminal-justice and victim-care agencies’ ability to prevent more violence.  The economy also hampers efforts to confine abusers as the justice system, from police to jails to courts, struggles under budget cuts.  For victims trying to leave abusive relationships, which is when they’re at the highest risk, emergency shelter and long-term transitional housing are getting scarcer as demand for them increases.

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

Berghuis v. Thompkins: Miranda Applies, BUT Defendants MUST Clearly Invoke Constitutional Rights

Constitutional Rights, Due Process, Duress Defense, felony, Homicide & Manslaughter, Interrogation, law enforcement, police, Privacy, Search and Seizure, Self-Incrimination, United States Supreme Court, , ,

Why Interrogation in Jail May Not Count as “Custodial”: The Supreme Court Makes New Law in Howes v. Fields | Sherry F. Colb | Verdict | Legal Analysis and Commentary from Justia

In Berghuis v. Thompkins, the U.S. Supreme Court ruled that a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.

The case centered around the interrogation of Van Chester Thompkins, who was suspected of Homicide. He remained virtually silent for hours in police custody before giving a few brief responses to police questions. Most significantly, Thompkins answered “yes” when asked, “Do you pray to God to forgive you for shooting that boy down?” The statement was introduced at trial and Thompkins was convicted.

In a 5-4 ruling, the Court held that criminal suspects who do not clearly state their intention to remain silent are presumed to have waived their 5th Amendment rights. Ironically, suspects must literally open their mouths and speak in order for their silence to be legally protected. The new rule will defer to police in cases where the suspect fails to unambiguously assert their right to remain silent.

My opinion?  Naturally, I’m concerned about any retreat from the basic principle that criminal suspects should not be compelled or coerced into incriminating themselves.  The opinion is wrong because it creates additional challenges for suspects who already understand too little about how their constitutional rights apply during police interrogations.

Fortunately, however, the Berghuis decision leaves intact the best strategy for handling any police interrogation: keeping your mouth shut. Requiring suspects with limited legal knowledge to clearly assert their rights may seem a bit strict, but it’s irrelevant if the suspect never says a word to begin with. The point of the 5th Amendment isn’t to protect you after you’ve foolishly incriminated yourself; it’s to remind you that you’re not obligated to answer police questions in the first place.

Ultimately, the burden is on each of us to understand our rights and use that information to make the best decisions. It’s unlikely that any Supreme Court decision will ever change the fact that remaining silent is your best and only strategy if police ask you incriminating questions.

I can’t stress this enough: your attorney can suppress unlawfully obtained evidence IF you clearly assert your rights.

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

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

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

NRA-ILA | Stemming the Tide: Violent Crime Decreased in First Six Months of 2017

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 successful efforts of law enforcement’s endeavors, we should not be too quick to pat ourselves on the back.

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

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, , ,

A Judge's Personality Comes out in the Chambers through Artifacts and Collections

In State v. Sublett, the WA Court of Appeals held that an in-chambers conference held by the trial judge in response to a juror’s question did not violate the defendant’s his right to an open and public trial. 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.

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.

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

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, , ,

What is Cruel and Unusual Punishment? - YouTube

In Graham v. Florida, the U.S. Supreme Court held it 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.

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.  Moreover, 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.

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

Speeders On Strapped Cities’ Radar

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

Nearly 600 Towns Get 10% Of Their Budgets (Or More) From Court Fines

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 “super-speeder” 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, super-speeder 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.

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

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, , ,

The Possibilities and Pitfalls of Self-Representation for Artists - RedDotBlog

In State v. Paumier, the WA Court of Appeals reversed the defendant’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.

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.

 

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

Seattle Mayor Vetoes Aggressive Panhandling Bill

Constitutional Rights, Race & Law, , ,

Panhandling: The Story Behind the Sign | Denver Rescue Mission

Seattle, be proud.

Last week, the Seattle City Council considered an unnecessary and divisive ordinance empowering the police to give out $50 tickets to people who panhandle. Similar measures have been introduced in other cities. While the measure passed by a 5-4 margin, four Council members, Bruce Harrell, Nick Licata, Mike O’Brien, and Tom Rasmussen, recognized this law could be used to improperly target poor people and people of color while doing nothing to improve public safety. They voted against it, and Mayor Mike McGinn vetoed the measure on Friday.

My opinion?  Sure, nobody likes being panhandled.  But criminalizing it?  C’mon, I’m sure taxpayers don’t want money spent jailing panhandlers!!!  Additionally, the civil rights violations and exposure to liability makes this bill extremely undesirable.  The Mayor and Seattle Council “got it,” and voted/vetoed intelligently.  Let’s thank these champions for taking a courageous stand for civil liberties!

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