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

911 Call, Assault, Constitutional Rights, Domestic Violence, Evidence, felony, Jury Trial, Washington Supreme Court, , ,

What is EXCITED UTTERANCE? What does EXCITED UTTERANCE mean? EXCITED UTTERANCE meaning & explanation - YouTube

In State v. Pugh, the WA Supreme Court admitted “Excited Utterance” hearsay evidence of a 911 call, thus disregarding 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.

 Unbelievable.

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.

Washington Supreme Court Statistics: 2009

Washington Supreme Court, , ,

Statistics Education Resources for Teachers and Students from the ASA | Institute of Competition Sciences

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 address 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. 🙂

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.

American Law Institute Abandons the Death Penalty

Death Penalty, Studies, , ,

Oregon's Death Penalty Is Almost Nonexistent—So Why Can't We Get Rid of It? - News - Portland Mercury

Last fall, the American Law Institute (ALI), which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced the Death Penalty 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.

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.

Proposed Law Changes To Prevent Future Police Murders

Accomplice, Constitutional Rights, felony, Firearm, Homicide & Manslaughter, law enforcement, Legislation, police, Violent Crime, Washington State Patrol, , ,

2009 Lakewood shooting - Wikipedia

In the wake of the Lakewood police officer shooting tragedy, Representative Mike Hope (R-Lake Stevens) is drafting legislation to prevent serial offenders like Maurice Clemmons from having an opportunity to harm others. Hope, a Seattle police officer who works patrol when not in session, said this was at the top of his legislative agenda.

The three-part legislation will include two proposed changes to the Washington State Constitution and a sentencing enhancement, proposals he says would have prevented the murders of four Lakewood police officers Nov. 29.

The first bill would remove bail opportunities for dangerous individuals who have committed two felonies and are charged with a possible “third strike” felony offense.   The second bill would prevent defendants from receiving bail if they commit another violent crime in Washington and are proven dangerous to the public.  The third bill would require a sentencing enhancement against those who aid and abet criminals who are not bailable.

A change to the state constitution requires a two-thirds approval in both the House and the Senate and simple majority approval from voters.

My opinion?  Like everyone, I’m deeply saddened with the deaths of the four Lakewood Officers.  Their murders were completely meaningless and senseless.  I’m also disturbed the defendant’s friends/relatives assisted him.

That said, I question whether altering the WA Constitution and chipping away at a defendant’s rights is the answer to preventing similar murders from happening in the future.  I’m a staunch defender of constitutional rights.  Indeed, if I were to wrap an American flag around myself and proclaim my patriotism out loud, then THAT is the platform I stand upon: vigilant, aggressive protection of individual rights against a tyrannical government.

The proposed legislation is strong medicine.  Too strong.  At worst, defendants can be held without bail.  This is disturbing.  Under court rules, judges may hold defendants without bail only if the charge they face is a capital charge; like murder.  Additionally, judges must impose the least restrictive release alternatives to defendants.

Disallowing bail and indefinitely holding defendants in jail laughs in the face of “least restrictive alternative.” Finally, holding defendants without bail leads to “plea tenderization” by cutting defendants off from work and family.  As a result, defendants may plead guilty not because they committed a crime; but simply to get out of jail and move on with their lives.  That’s an utterly inhumane result if the defendant is innocent of the charges.

We’ll see what happens.  The bill needs extremely strong support.

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. Buelna Valdez: Search Incident to Arrest is Invalid (Tip of the Hat To Arizona V. Gant)

Constitutional Rights, Drug Offenses, Due Process, felony, law enforcement, Methamphetamine, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

The Fourth Amendment Reasonableness Requirement - FindLaw

In State v. Buelna Valdez, the WA Supreme Court held that a search incident to arrest was invalid under the 4th Amendment.

Here, a police officer pulled over a vehicle because it had only one working headlight.  The officer ran a records search on the driver, Mr. Buelna-Valdez, and discovered there was an outstanding warrant for his arrest.  The officer handcuffed and secured the defendant in his patrol car.  Officer searched the vehicle.  He noticed loose dashboard panels.  He calls a K-9 unit.  The K-9 uncovered methamphetamine located under a moldy cup holder.  The passenger was then also arrested. Both men were charged with drug offenses.

The WA  Supremes held that the automobile search incident to arrest was unlawful.  They reasoned that because the arrestee was handcuffed and secured in the backseat of a patrol car, he no longer had access to any portion of his vehicle.  The officer’s search of the vehicle was therefore unconstitutional under both the Fourth Amendment and the WA Constitution.  The Court also embraced the U.S. Supreme Court’s Arizona v. Gant in finding factual similarities between the cases:

“Under the Fourth Amendment, the arrestee was secured and not within reaching distance of the passenger compartment at the time of the search, so neither officer safety nor preservation of evidence of the crime of arrest warranted the search.  See Gant, 129 S. Ct. at 1719.  Furthermore, the arrestee was arrested based upon an outstanding warrant; the State has not shown that it was reasonable to believe that evidence relevant to the underlying crime might be found in the vehicle.  See Gant, citing Thornton, 541 U.S. at 632 (Scalia, J., concurring).”

The Court also reasoned the search was conducted without a warrant, even though the circumstances did not prevent officers from obtaining one prior to the search:  “There was no showing that a delay to obtain a warrant would have endangered officers or resulted in evidence related to the crime of arrest being concealed or destroyed.  As such . . . the evidence collected from that search should be suppressed, and the resulting convictions reversed.”

My opinion?  Obviously, I’m happy.  The case is great law for defense attorneys.  Indeed, it goes even further than Gant. Although good, Gant was slightly problematic because it allowed police to search for evidence of the crime of arrest.   In this decision, however, the WA Supremes only allow a search if there is evidence of destruction.  Therefore, in WA, if the defendant is in the squad car, the police cannot search the defendant’s vehicle.  Beautiful.

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.

Prisons Are Still Growing and Racial Disparities Persist, Despite Availability of Cost-Effective Alternatives

Jail, Race & Law, Studies, , ,

Report identifying nonviolent offenders eligible for release sits on shelf during pandemic - New Mexico In Depth

Last week, the Department of Justice released its annual survey of prisons.

Reports showed that over 1.6 million people are incarcerated in federal or state penitentiaries.  The report shows that although the growth of imprisonment is down, the number of people in prison is still increasing, up more than 12,000 people from last year.  The number continues to grow even as crime goes down, despite lack of evidence that incarcerating people is an effective public safety strategy.

As states continue to grapple with budget crises, its time for policymakers to consider cost-effective alternatives to incarceration.

Highlights from the report:

  • Twenty states reported a reduction in their prison populations since 2007.
  • Fewer people were admitted to prison in 2008 than previous years.
  • The number of people released is still less than the number of people admitted.
  • Decreases in the number of blacks and increases in the number of Hispanics in prison have little effect on the disproportionate impact of the criminal justice system on communities of color.
  • Black men are 6.5 times more likely to be in prison than white men.
  • Prisons continue to grow even as crime continues to fall.
  • More needs to be done to address disproportionate minority contact with the criminal justice system.
  • Correctional agencies must address re-entry needs long before returning prisoners to the community.
  • Investing in effective public safety strategies can provide long-term, cost-effective solutions.

My opinion?  The findings speak for themselves, and galvanize the age-old issue in criminal jurisprudence: whether rehabilitation or punishment more effective deals with criminal defendants.  Some background: in the 60’s -70’s, our governments were more open to rehabilitating defendants away from their criminal lifestyles.

In the 80’s and 90’s, however, the rehabilitative approach was slowly abandoned.  This happened for many reasons.  First, it was difficult to quantify recidivism rates for “rehabilitated” defendants.  Additionally, states found ways to make money from the criminal justice system. 

In short, more prisons brought increased employment and government funds to states which badly needed the economic injection.  Third, it became popular to beat up on criminals.  Finally, the “War on Drugs” catapulted an outcry for more police, stricter drug laws, and a “lock ’em up & throw away the key” mentality.

These days are different.  We’re seeing the “War on Drugs” failed.  We’re noticing that incarcerating people is an expensive luxury.  We’re realizing that budget crises in the criminal justice system force us to be more creative.

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.

Despite More Jobless, Crime Rates Fall

Jail, Studies, , ,

Latest Crime Statistics: Volumes Continue to Fall — FBI

Despite more people being jobless, crime rates continue to fall.

Experts are scratching their heads over why crime has ebbed during this recession, making it different from other economic downturns of the past half-century. Early guesses include jobless folks at home keeping closer watch for thieves, or extra benefits keeping people from resorting to crime.

My opinion?  The experts are probably correct.  People commit crimes when their present situation seems hopeless.  They lose hope when their opportunities become limited, and/or there’s no way out of a bad predicament.

Here, the government’s extension of unemployment benefits gives hope to many jobless Americans.  They may think, “I’ll get a job when the country’s economic situation improves,” and take shelter with unemployment extensions.  These same Americans might otherwise commit crimes if the government didn’t step in and assist.

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.

New Statistics From the Bureau of Justice Shows Overall Decrease In Prison Populations

Race & Law, Studies, , ,

U.S. Prison Population Trends: Massive Buildup and Modest Decline | The Sentencing Project

The Bureau of Justice just released two bulletins last week which examine the numbers of defendants under probation or parole supervision for 2008.  The report discusses related trends, including an overall increase in the number of individuals being released from federal and state prisons.

Highlights include the following:

  • The U.S. prison population grew at the slowest rate (0.8%) since 2000, reaching 1,610,446 sentenced prisoners at year end 2008.
  • Growth of the prison population since 2000 (1.8% per year on average) was less than a third of the average annual rate during the 1990s (6.5% per year on average).
  • Between 2000 and 2008 the number of blacks in prison declined by 18,400, lowering the imprisonment rate to 3,161 men and 149 women per 100,000 persons in the U.S. resident black population.

My opinion?  Politicians are finally acknowledging that (1) incarcerating people is an expensive luxury, and (2) the “War on Drugs” is not working.  Although I don’t know for sure, I’m confident the majority of these “early release” defendants were convicted of low-level drug crimes.  Similarly, I’m confident the courts are sending fewer people to prison if they’ve been convicted of drug crimes.

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. Harrington: “Progressive Intrusion” = Unlawful Search

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, law enforcement, Methamphetamine, misdemeanor, police, Privacy, Search and Seizure, Terry Stop, Washington State Patrol, Washington Supreme Court, , ,

4 Charts That Show Stop-and-Frisk Is a Terrible Crime-Fighting Tool

In State v. Harrington, the WA Supreme Court held that the “Progressive Intrusion” of the officer during the investigations was an unlawful search.

Issue was whether the police unlawfully searched/seized the defendant prior to arrest, in violation of article I, section 7 of the Washington Constitution, requiring suppression of drugs found on his person.

In short (yes, I’m getting to the good part), the WA Supremes decided the search WAS unlawful, and amounted to a “progressive intrusion.”  Evidence suppressed, case thrown out of court.

The facts: On August 13, 2005, 11:00PM, Officer Reiber of the Richland Police was driving his police car on duty.  He noticed soon-to-be defendant, Dustin Harrington, walking down the sidewalk.  Officer Reiber made a U-turn, drove past Harrington, and pulled into a driveway.  He did not activate his lights or siren.  Officer exited his car and made contact with Harrington (this is called a “social contact”).

Officer Reiber asked questions.  Harrington answered them awkwardly and non-sensically.  Officer became nervous because Harrington kept putting his hands in his pockets.  The conversation lasted about five minutes.

State patrol Trooper William Bryan drove by the scene.  He initiated a U-turn, got out of his car, and approached the two men.  Similar to Officer Reiber, Trooper Bryan did not activate his emergency lights.  Upon contact, Trooper Bryan did not speak to either gentleman.  He stood about eight feet away.

Officer Reiber asked Mr. Harrington if he could pat down Harrington “for officer safety reasons.”  Mr. Harrington said “No.”  Officer patted Harrington down anyway, against Harrington’s consent.  During the pat-down, Officer Reiber found a glass pipe used for smoking methamphetamine.  Reiber arrested Harrington.  During the search, officers discovered a pipe and baggie containing methamphetamine on Harrington’s person. Harrigton was charged with Unlawful Possession of Methamphetamine.

The WA Supremes articulated why the search/arrest was illegal, and consequently, why the evidence should be suppressed.  They discussed what “social contact” between an officer and citizen means:

“The phrase’s plain meaning seems somewhat misplaced.  ‘Social contact’ suggests idle conversation about, presumably, the weather or last night’s ball game — trivial niceties that have no likelihood of triggering an officer’s suspicion of criminality.  The term ‘social contact’ does not suggest an investigative component.”

The Court further reasoned that subsequent events quickly dispelled the social contact and escalated the encounter to an unlawful seizure. First, Trooper Bryan’s arrival at the scene escalated the situation away from a mere “social contact” because a reasonable person would think twice about the turn of events.  As a result, Trooper Bryan’s presence contributed to the eventual seizure of Harrington.

Second, Officer Reiber’s request for Mr. Harrington  to remove hands from pockets added to the officer’s unlawfully progressive intrusion.  Third, Mr. Harrington did not consent to the search.  Officers MUST have a well-founded suspicion to search when they lack a defendant’s consent.

Here, these circumstances lacked the foundational basis for a search.  Finally, and before Officer Reiber’s request to search, he did not ask for Harrington’s name or address, did not conduct a warrant check, and did not ask if Harrington carried drugs.

The court concluded Harrington was unconstitutionally seized because, like him, an objectively reasonable person would not have felt free to leave when officers asked to frisk.  Consequently, the seizure violated article I, section 7 of the Washington Constitution.

My Opinion?  Excellent.  Beautiful.  On point.  The WA Supremes got it right.  The cumulative effect of these violations — all three of them — amounted to an unlawful search.  I’m extremely happy the WA Supremes addressed the fine line between a lawful “social contact” and unlawful “progressive intrusion.”  I’ve had numerous clients face criminal charges as a result of an officer’s apparently innocent “social contact,” which was, in reality, a progressive intrusion into their privacy.

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.

Jails In Indian Country

Domestic Violence, Jail, Race & Law, Studies, , ,

Patchwork health care for reservation inmates raises concern | HeraldNet.com

The U.S. Department of Justice recently conducted a survey of jails in Indian Country.  The facilities included a total of 82 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs.

The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2008. It also summarizes rated capacity, facility crowding, and jail staffing. Trend data from 2000 to 2008 on facilities in the surveys are included.

Highlights include the following:

  • The number of inmates admitted into Indian country jails during June 2008 was about 6 times the size of the average daily population;
  • The number of inmates confined in Indian country jails declined by 1.3% at midyear 2008, dropping to 2,135 inmates;
  • Inmates held for aggravated and simple assault increased at midyear 2008; and
  • Domestic violence declined.

Upon graduating from law school in 2003, my first job was Deputy Prosecutor for the Lummi Nation.  Indian defendants were housed with non-Indian defendants at the Whatcom County Jail.  I learned the Tribe had a VERY proactive anti-domestic violence unit (ADV Unit).  This was considered a hot-button topic (and probably still is).  The ADV Unit worked with tribal police, educated the community, and advocated for survivors of domestic violence.

That said, the survey showed a decrease in domestic violence (DV) crimes in 2008.  That’s good news.  DV convictions bring particularly painful consequences: defendants lose gun rights, judges issue no-contact orders against family members, defendants must move from dwellings they share with alleged victims, etc.  Very nasty.

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.