All posts by admin

State v. Kyllo: When It Makes Sense, Argue Self Defense

Assault, Constitutional Rights, Due Process, felony, Ineffective Assistance, Jury Trial, Self-Defense, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Undercover inmate describes violence in jail

In State v. Kyllo the WA Supreme Court held that the  jury instruction misstated the law on Self-Defense. Moreover, the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured.

On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, Mr. Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense.

At trial, Defense counsel proposed a self-defense jury instruction that stated:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

Kyllo was convicted on the charge of second degree assault. On appeal, he asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion.

The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured — “One is not required to believe he is about to be grievously harmed or killed.”

The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.

My opinion?  Excellent decision.  Reminds defense attorneys to stay cognizant of the jury instructions they provide.  For those who don’t know, a jury instruction is an instruction given by the court to a jury at the conclusion of presentation of all evidence in a trial, and after the lawyer’s closing arguments, to advise the jury of the law that applies to the facts of the case, and the manner in which they should conduct their deliberations.  The attorneys prepare the instructions.

Here, the defense attorney gave the “Acting on Appearances” instruction.  The instruction presents a good starting point for the circumstances surrounding this particular case (Convict A is mad-dogging Convict B, Convict B attacks Convict A first  — and acting on Convict A’s appearances — because he believes Convict A will attack and get the advantage of surprise).  Unfortunately, the instruction, by itself wasn’t enough.

As a matter of practice, I believe both a self defense instruction AND and “Acting on Appearances” instruction work best in combination with each other.  Speaking from my own trial experience, everyone on the street embraces self defense.  It allows us to fight back when we’re attacked.  Simple.

However, the soft-spoken pacifists out there (who are INCREDIBLY hard to spot at jury selection) are downright offended by the “Acting on Appearances” instruction.  Many juries simply cannot promote violence beyond the context of self defense.  Yet even a pacifist will fight to save their own life.

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. Rivera-Santos: Why Crossing State Lines – Intoxicated – Is Double Trouble

Constitutional Rights, Department of Licensing, Due Process, DUI, law enforcement, misdemeanor, police, Probable Cause, Reckless Driving, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

Two DUI arrests made in southern Arizona following Labor Day weekend

In State v. Rivera-Santos, the WA Supreme Court determined that the defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights.

Rivera-Santos led police on a chase that started on the Washington side of I-5 and ended on the Oregon side. He was found to have a blood-alcohol content level of .17 percent (more than twice the legal limit), and convicted by an Oregon court of driving under the influence. He was also charged with a DUI in Clark County District Court, but Rivera-Santos argued that it should be dismissed under the constitutional protections against double-jeopardy (i.e. being punished twice for the same crime).

Justice Fairhurst wrote that convicting Rivera-Santos in Washington would not be double-jeopardy, as it was a separate crime.  He drove while drunk in Oregon, and was punished for that by an Oregon court. He also drove while drunk in Washington, and a Washington court could punish him for that separate crime.

My opinion?  If it looks like a duck, smells like a duck, then it must be a duck.  Said differently, this legal decision looks like double jeopardy, smells like double jeopardy, therefore it must be double jeopardy.

For those who don’t know, “Double Jeopardy” happens when defendants are prosecuted twice for the same offense.  It’s unconstitutional.  The Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.’ U.S. v. Halper, 490 U.S. 435, 440 (1989).

Here, the WA Supremes stated that Mr. Rivera-Santos committed two different crimes in two different states.  Fine, I can agree with that.  HOWEVER, I disagree with their decision that charging these crimes is not double jeopardy.  Why do I disagree?  Because these “two crimes” arose from the same facts and circumstances.

Mr. Rivera-Santos did not steal candy from a 7-11 in Oregon, cross State lines, and then steal candy from a 7-11 in Washington.  The crime of DUI is, essentially, driving while intoxicated.   Although Mr. Rivera-Santos drove across State lines while intoxicated, he was DUI only one time during that crossing.  Therefore, he should only be punished once.   Anything more is double jeopardy.

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. McCormick: Sex Offender’s Suspended Sentence Remains Revoked

Bellingham Defense Attorney, Due Process, Mount Vernon Criminal Defense Attorney, Rape, Sentencing, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

PPT - The Basics of Sex Offender Sentencing in Washington PowerPoint Presentation - ID:253013

In State v. McCormick, the WA Supreme Court held the plain language of Washington’s SSOSA statute does not require proof that a violation was willful before a SSOSA sentence may be revoked.

David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he “not frequent areas where minor children are known to congregate”

Unfortunately, McCormick’s community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick’s first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.

McCormick argued that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence.

However, the Court held that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court’s decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices.

Justice Sanders dissented, asserting that “[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate.”

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.

Bellingham Police Department Launches Anti-Crime Team

911 Call, Bellingham, Bellingham Defense Attorney, Bench Warrant, law enforcement, Privacy, Terry Stop, Whatcom County Criminal Defense, , ,

Exclusive: A look at the NYPD's anti-crime unit in the subway | PIX11

Bellingham’s finest created a five-person “Anti-Crime Team (ACT) dedicated to warrant arrests, stakeouts, sting operations, and plainclothes detective work.  The team’s goal is to reduce  — and follow up on — the number of 911 calls the police department receives.  “Our purpose is basically to do what patrol doesn’t have time to do,” Sgt. Keith Johnson said.  “If we can spend some quality time and solve problems rather than deal with them every time they flare up, then the community benefits and patrol benefits.”

The Anti-Crime Team (ACT) appears to be a proactive sub-unit of the Bellingham Police Department.  In short, ACT provides additional investigations/policing of our neighborhoods.  These activities include serving bench warrants, police interviews, stakeouts, etc.  In other words, ACT is involved in community caretaking.

Know this, however: “community caretaking” is, in reality, a legal term; and establishes an exception to rule that officers MUST have a warrant to arrest citizens.  ACT’s proactive approach could create a risk of abuse to the community caretaking exception of the warrant requirement.  Under WA law, and in light of the risk of abuse, courts must be cautious in applying the community caretaking exception to the warrant requirement.

n order to avoid abuse of the exception, community caretaking searches/seizures must be strictly divorced from criminal investigations.  Also, the community caretaking function exception may not be used as a pretext for a criminal investigation.

Given ACT’s proactive approach to neighborhood policing as a “community caretaking” function, we could see an increase in unlawful arrests.

The solution?  Be aware of your Constitutional rights when approached/questioned by police officers.  Be cooperative.  Avoid making unnecessary statements.  Ask for an attorney.

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.

When Men Are Victims of Domestic Violence

911 Call, Assault, Bellingham Defense Attorney, Domestic Violence, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

Male domestic abuse victims 'suffering in silence' - BBC News

An article on msn.com discusses Domestic Violence when the perpetrator is female and the victim is male.

According to the article, a recent study showed that 64 percent of the men who called a DV hotline were told that they “only help women,” and only half were referred to programs for male perpetrators.  Overall, only 8 percent of the men who called hotlines classified them as “very helpful,” whereas 69 percent found them to be “not at all helpful.”  Worse, when an abused man called the police, the police were more likely to arrest him than to arrest his abusive female partner.

My opinion?

I’ve handled hundreds of domestic violence (DV) cases.  Truthfully, female-on-male DV doesn’t happen often.  Indeed, I can count ON ONE HAND cases I’ve worked where a female defendant abused her male boyfriend/husband.  Either it rarely happens, or doesn’t get reported.  Probably both.

Still, it’s shameful that female-on-male DV isn’t taken as seriously.  Societal norms probably have much to do with it (men are physically stronger, they should have the wherewithal to “handle” an angry/violent female, etc.).

You should know this, however: BY WASHINGTON STATUTE, POLICE MUST ARREST SOMEONE IF THEY ARE SUMMONED VIA 911 PHONE CALL.  There’s no getting around it.  No arguing with police.  They will arrive, separate you two, investigate the scene, gather evidence, interview witnesses, determine who the primary aggressor is, and arrest them.

In addition, a DV perpetrator can be charged with Interfering With a 911 Call – a gross misdemeanor – if the perpetrator attempts to stop the victim from calling the police.

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.

Why Henry Louis Gates Should Sue

Constitutional Rights, Race & Law, Search and Seizure, Studies, , ,

Henry Louis Gates, Jr., Will Offer Presidential Colloquium | Smith College

Last week in Cambridge, Mass., Sgt. James Crowley arrested Henry Louis Gates Jr., a professor at Harvard, for Disorderly Conduct while responding to a reported break-in at Gates’s home.  The charges were subsequently dismissed.  Nevertheless, media pundits are asking the question:  should Mr. Gates sue?

Not surprisingly, the article’s author advocates legal action.  A lawsuit from Gates could lead to formal examination of the troubled history of police interactions with African-Americans.  The suit would also oppose systemic injustice and benefit the larger community.  Finally, lawsuits can be an important tool for reform when coupled with advocacy and public education efforts when the circumstances are conducive to change.

My opinion?  Personally, I also believe Gates should file suit.  Some police officers wrongfully become offended when questioned by citizens.  These same officers consider it unlawful when citizens exercise their Constitutional rights.   In short, citizens have the 4th amendment right to refuse illegal searches/seizures by police.

We also have the 5th Amendment right to remain silent upon arrest.  In other words, we may legally refuse to provide police with information which may incriminate ourselves.   When and why did it become unlawful to exercise our rights?  Where is the Disorderly Conduct in that?

It could be problematic, however, for Mr. gates to prove damages.

In order to prevail, Mr. Gates must show that he was (1) injured before/during/after the arrest, and (2) that his injuries led to quantifiable damages.  Admittedly, the damages portion is difficult to quantify.  Was Mr. Gates physically injured at any time?  Was he incarcerated?  If so, did his incarceration cause him any other injuries?  Did Mr. Gates undergo mental trauma?  The answers to these questions should determine whether his lawsuit has merit or is frivolous.

Good luck, Mr. Gates.

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 National Report: 1 in 11 Prisoners Serving a Life Sentence

Jail, Race & Law, Sentencing, Studies, , ,

How long is a life sentence in the UK, what's a whole life order and when is a prisoner eligible for parole?

A new report released by The Sentencing Project finds 140,610 individuals are now serving life sentences in state and federal prisons, 6,807 of whom were juveniles at the commission of the crime.  In addition, 29% of persons serving life sentences (41,095) have no possibility of parole, and 1,755 were juveniles at the commission of the crime.

No Exit: The Expanding Use of Life Sentences in America represents the first nationwide collection of life sentences data documenting race, ethnicity and gender.  The report’s findings reveal overwhelming racial and ethnic disparities in the allocation of life sentences: 66% of all persons sentenced to life are non-white, and 77% of juveniles serving life sentences are non-white.

The report notes that legislators have expanded the types of offenses that result in a life sentence and established a wide range of habitual offender laws that subject a growing proportion of defendants to potential life terms. The authors note how the politics of fear has largely fueled the increasing use of life without parole (“LWOP”) sentences. This is described as an increasing willingness to impose life sentences on juveniles, an increasing reluctance on the part of parole boards and governors to release parole-eligible life prisoners and how, as a consequence, the population of life prisoners is both growing and aging, with ever-increasing costs to society.

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. Engel: WA Supreme Court Reversed Overly Broad Burglary Conviction

Burglary, Constitutional Rights, Due Process, felony, Jury Trial, Property Crimes, United States Supreme Court, Washington Court of Appeals, , ,

118 Fence Ideas and Designs - Different Types With Images

In State v. Engel, the WA Supreme Court ruled that a man suspected of stealing aluminum auto wheels from a rural business wasn’t guilty of committing Burglary in the Second Degree — an extremely serious felony — because the property wasn’t fenced on all sides.

Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute.

The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top.

However, the rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law.

Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.”

My opinion?  I wholeheartedly agree with the WA Supremes for two reasons.  First, under the state’s interpretation of “Burglary,” would-be petty criminals who trespass might be liable for burglary even if the property line at their point of entry were unfenced and unmarked, even if they remained on the property without approaching any buildings or structures, and even if the property were such that they could enter and remain without being aware that it was fenced.  These kinds of examples are well outside the category of offenses the legislature intended to punish as burglary.

Second, Burglary is a serious crime with serious consequences. An arrest and conviction for a residential burglary, or any other property crime, can be a life-changing event that may result in penalties such as mandatory state prison time. Residential burglaries have reached epidemic proportions in many communities and courts are routinely handing out stiff penalties, even to first time offenders.

Again, good opinion.

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. Redding: U.S. Supreme Court Declares Strip Search of 13-Year-Old Student Unconstitutional

ACLU, Constitutional Rights, Drug Offenses, Due Process, Search and Seizure, Search Warrant, United States Supreme Court, , ,

Should schools be strip-searching students? | Illinois Attorney Referrals and Legal Guidance

In State v. Redding, the U.S. Supreme Court ruled that school officials violated the constitutional rights of Savana Redding, a 13-year-old Arizona girl who was strip searched based on a classmate’s uncorroborated accusation that she previously possessed ibuprofen, a banned medication. This is the biggest victory for students’ rights in the last 20 years.

My opinion?  I’ll let Savannah speak for herself.  Below is a post she wrote for the ACLU’s blog:

“People of all ages expect to have the right to privacy in their homes, belongings, and most importantly, their persons. But for far too long, students have been losing these rights the moment they step foot onto public school property — a lesson I learned firsthand when I was strip-searched by school officials just because another student who was in trouble pointed the finger at me. I do not believe that school officials should be allowed to strip-search kids in school, ever. And though the U.S. Supreme Court did not go quite so far, it did rule that my constitutional rights were violated when I was strip-searched based on nothing more than a classmate’s uncorroborated accusation that I had given her ibuprofen. I’m happy for the decision and hope it helps make sure that no other kids will have to experience what I went through.

Strip searches are a traumatic intrusion of privacy. Forcing children to remove their clothes for bodily inspection is not a tool that school officials should have at their disposal. Yet, until today, the law was apparently unclear, potentially allowing for the most invasive of searches based on the least of suspicions. Every day, parents caution their children about the importance of not talking to strangers, looking both ways before crossing the street, and following directions at school.

But I imagine they never think to warn them that a school official, acting on a hunch, may force them to take their clothes off in the name of safety. And now, thankfully, they won’t have to. Our fundamental rights are only as strong as the next generation believes them to be, and I am humbled to have had a part in preserving and promoting the Fourth Amendment to the Bill of 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.

From the Glass to the Brain in Six Minutes

Studies, , ,

How Alcohol Impacts the Brain | Northwestern Medicine

Scientists is Heidelberg discovered that alcohol affects brain cells six minutes after consumption.  The “subjects” consumed an amount of alcohol equivalent to three glasses of beer or two glasses of wine, leading to a blood alcohol level of 0.05 to 0.06 percent.

The harmful effect also sets in quickly. During the experiment, the concentration of substances such as creatine (energy metabolism), which are attributed with protecting cells, decreases as the concentration of alcohol increases. Choline, a component of cell membranes, was also reduced. “That probably indicates that alcohol triggers changes in the composition of cell membranes,” says Dr. Armin Biller.

Is all consumption of alcohol harmful for the brain? “Our follow-ups on the next day showed that the shifts in brain metabolites after moderate consumption of alcohol by healthy persons are completely reversible,” says Dr. Armin Biller. “However, we assume that the brain’s ability to recover from the effect of alcohol decreases or is eliminated as the consumption of alcohol increases.”

This study also found no differences between the results of male and female individuals – the brains of female and male subjects reacted to alcohol consumption the same way.

My opinion?  Well — without getting too personal — I support the study’s findings.  Alcohol hits a lightweight like me fairly quick.  LOL.

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