Has Crime Increased?

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

Despite Crime Rate Decrease, Majority of Americans Think It Is Increasing

Very interesting article from freelance reporter Robert Cherry of The Hill.  It posits that although many individuals have benefitted from justifiable changes in bail and sentencing, crime has also increased.

Hill reports that in 2020, Philadelphia homicides totaled 499 — 40 percent above the previous year and just below a peak number of 500 in 1990, when the city’s population was virtually the same as today. And through July, Philadelphia is on pace to break its homicide record.

Also according to Hill, in January 2021 alone, there were 59 car-jackings, up from 18 at the same time last year, according to the Philadelphia Police Department — a more than threefold increase. There were 404 car-jackings in 2020, up from 225 in 2019 and 230 in 2018, according to the department.

A similar dynamic occurred in Chicago. As reported in 2018, Car-jackings have nearly tripled since 2015, with an increasing share committed by juveniles, thanks to a law exempting young carjackers from adult penalties.

Has crime increased?

Yes, according the U.S Department of Justice. It released a report stating that crime increased significantly in 2020. And according to an article from CNN, major American cities saw a 33% increase in homicides last year. The reasons?  The Coronavirus Pandemic, protests against racial injustice and police brutality, and the economy collapsing are all factors.

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.

Tox Lab Contaminated

Bellingham Defense Attorney, Methamphetamine, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Toxicologist, Whatcom County Criminal Defense, , , ,

How cutting drugs became big business - BBC News

Excellent article by reporter Lewis Kamb of the Seattle Times reports that recent samplings at the Washington’s forensic toxicology laboratory found areas contaminated with methamphetamine and cocaine. This raises further skepticism among defense lawyers about the integrity of blood testing being performed at a lab relied upon in thousands of criminal cases and death investigations statewide.

Apparently, residual levels of cocaine on five sites and meth on four sites within the lab — mostly ceiling vents and air intake systems, a report posted this month on the lab’s website shows. Samples of three additional sites also tested presumptively positive for other drugs.

Kamb reports that defense attorneys are seeking more transparency from the state about the lab’s ongoing contamination problems since last year. The latest sampling only underscores the need for the state to own up to and fix a problem that potentially throws all of the lab’s blood testing into question.

The latest sampling results come after the Tox Lab had falsely detected meth in blood samples tested for 11 cases since 2019. The problems surfaced after the lab expanded its operations in March 2018 across a hallway and into an annex work area where scientists with the State Patrol’s crime lab once had set up makeshift meth labs for training purposes.

But the contamination problems have persisted, with false meth results showing up in two of the 11 cases this year. The results found detectable levels of both methamphetamine and cocaine in samples collected from ceiling vents and the air intake for a lab table in the main laboratory. Cocaine also was found separately in a sample taken from the air intake of a sink in the lab.

Three additional samples garnered presumptive positive results for other drugs, including the diuretics Mannitol and Sorbitol, detected on a lab refrigerator, as well as Nicotine and the psychotropic drug Mitragynine, commonly known as Kratom, found on a lab workbench and on a floor tile outside the entrance to an office.

More samples from Washington’s tox lab will be sent to NIST for its study, and the lab is planning an on-site assessment from the National Institute for Occupational Safety and Health in November — the earliest the federal workplace safety agency could visit.

“The lab’s refusal to take corrective action is problematic,” added Magda Baker of the Washington Defender Association, a group that assists public defenders statewide. “It indicates to me that they asked for the NIST study (perhaps to signify concern about contamination) without intending to take corrective action regardless of the study’s results.”   

Kamb reports that internal documents about the Tox Lab’s contamination and expert testimony have helped at least three defendants with meth detected in their blood. All of these defendants denied using the drug and beat DUI charges. And a judge in a Pierce County case ruled in March that the Tox Lab’s testing in a contaminated area amounted to “gross governmental mismanagement.”

My opinion? Unfortunately, these problems are nothing new for the Tox Lab. In 2007, former Tox Lab Director Anne Marie Gordon was accused of falsely certifying quality-assurance samples used in DUI breath-testing. She later resigned. However, Gordon’s denials supported arguments from defense lawyers who later got dismissals on DUI charges.

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.

Another Jail Outbreak

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

Cut COVID-19 risks NC jails and prisons | Raleigh News & Observer

Great article by Stacia Glenn of the News Tribune discusses how a COVID-19 outbreak in Pierce County Jail has up to 35 inmates testing positive.

The outbreak means the jail will only allow people arrested on suspicion of violent crimes to be booked. That includes murder, manslaughter, first-degree assault, rape, child molestation, kidnapping, child assault, domestic violence and possessing explosive devices.

Pierce County jail staff medically screens every person before they are booked. Inmates are provided with masks and given daily screenings and temperature checks, according to the jail’s website. And apparently, all three vaccines are also offered at the jail’s health clinic.

Ms. Glenn reports that since the pandemic started through June 2021, at least 398,627 people in prisons have tested positive for COVID-19, according to The Marshall Project. However, Ms. Glenn also reports that number is believed to be less than accurate. Most recently, there are approximately 6,254 positive tests for inmates in Washington state.

Prisons and jails frequently suffer from overcrowding. Even in the best of times they are, by definition, facilities where people are placed in close contact with each other on a near-constant basis. Factor in the unique health challenges faced by incarcerated people and the limited availability of quality healthcare, and it’s no surprise that correctional facilities are uniquely vulnerable to diseases such as Covid-19.

Correctional administrators have limited control over how long people spend incarcerated, but they can use what authority they possess to release people outright or direct people to less restrictive forms of confinement. They can also ease conditions of confinement and increase access to health products. Some correctional authorities have already begun this work.

As the coronavirus pandemic continues to ravage the country, and particularly its incarcerated populations, government actors have turned their attention to vaccine distribution as the solution to this health crisis. Though some states have explicitly included incarcerated individuals in their vaccination plans, many have not yet provided information as to how and when those behind bars will be granted access to this protection.

Please review my Legal Guide titled Making Bail and contact my office if you, a friend or family member are jailed and charged with a crime during this COVID-19 Pandemic. Hiring an effective and competent defense attorney is the best step toward justice. Nowadays, it may save your life.

Offender Score Post-Blake

Bellingham Defense Attorney, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Comment | Where is the Literature of Dissent?

In State v. Markovich, the WA Court of Appeals held that an out-of-state conviction for drug possession may not be included in the calculation of an offender score. There is no longer a comparable Washington offense after State v. Blake declared Washington’s strict liability simple possession statute to be unconstitutional.

FACTUAL BACKGROUND

In the early morning hours of July 13, 2017, police officers broke down the door of an apartment in Everett while executing a search warrant. The defendant Mr. Markovich was sitting on a couch in the front room of the apartment. Officers noticed digital scales, loaded and unloaded syringes, baggies, burnt aluminum foil, and a small stack of cash near the couch. Markovich was handcuffed and led outside the apartment. He had a small “baggie” containing a white substance in his pocket. The substance was later determined to be less than a gram of methamphetamine.

In the bedroom, officers also discovered a black fabric bag containing a larger quality of methamphetamine, heroin, and related drug paraphernalia. Markovich was charged with Possession of Methamphetamine and Heroin With Intent to Deliver or Manufacture.

At trial, Markovich was convicted as charged. The court imposed a high-end standard range sentence of 108 months in prison followed by 12 months of community custody. Markovich appealed on numerous grounds.

While this appeal was pending, the Washington Supreme Court decided State v. Blake, holding that Washington’s drug possession statute, RCW 69.50.4013(1), violated the due process clauses of the state and federal constitutions and was void. 197 Wn.2d at 186. Markovich filed a motion for resentencing in superior court, arguing that he was entitled to resentencing in light of Blake because his two prior out-of-state convictions for drug possession were included in the calculation of his offender score.

COURT’S ANALYSIS & CONCLUSIONS

On this issue, the Court of Appeals reasoned that a prior conviction based on a constitutionally invalid statute may not be considered when calculating an offender score.

“A sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice,” said the Court, quoting In re Pers. Restraint of Goodwin. The Court emphasized that the remedy for such a defect is resentencing under the correct offender score:

“In Blake, the Supreme Court declared Washington’s strict liability drug possession statute unconstitutional and void. Because penalties imposed under the invalid statute are void, defendants who were sentenced based on an offender score that included prior convictions under this unconstitutional statute are entitled to resentencing.” ~WA Court of Appeals.

Consequently, although the Court agreed with Markovich on this issue and re-sentenced his accordingly, it nevertheless denied his remaining claims on appeal.

My opinion? Good decision, overall. Our Court’s are dutifully re-calculating offender scores in the wake of the Blake decision. However, this opinion dealt only with convictions from other states.  A specific statute, RCW 9.94A.525(3) treats federal convictions for crimes for which there is no clearly comparable offense under Washington law as a class C felony equivalent in the offender score.  Federal simple drug possession felonies should, therefore, continue to be included in the offender score.

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.

COVID-19 Outbreak At Jail

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

Justicia fights for COVID-19 protections for people who are incarcerated - Furman News

Reporter David Rasbach from the Bellingham Herald reports the Whatcom County Jail in downtown Bellingham has seen a COVID-19 outbreak the past few days. The present outbreak has spread to 10 corrections deputies and one person housed at the jail.

Rasbach reports that since late in 2020, all corrections deputies at the jail have been tested for COVID weekly. One of the deputies tested positive on Saturday, Aug. 14.

“Over the following three days, additional corrections deputies tested positive during their weekly screening,” said Whatcom County Sheriff’s Office spokesperson Deb Slater. “We began working with the Whatcom County Health Department to track down the source of the infection.

Apparently, several corrections deputies contracted COVID while booking an individual who was uncooperative. This individual refused to answer any health-related questions or take a rapid COVID-19 test and demonstrated uncontrolled behavior during the booking process.

The sheriff’s office’s Corrections Bureau has since increased its rapid testing of deputies to daily, and additional personal protective equipment protocols have been put in place, according to Slater.

In January, the Work Center had an outbreak that affected 37 people, leading to some of the testing protocols now in place at the jail.

My opinion? A jail sentence should not become a death sentence. And yet our jails and prisons are filled with people with preexisting medical conditions that put them a heightened risk for complications from COVID-19. Our jails and prisons house large numbers of people with chronic diseases and complex medical needs who are more vulnerable to COVID-19. At the beginning of the pandemic, jails cut their populations by as much as 30%, helping to protect many of these people. But states and counties abandoned their efforts to keep jail populations low as the pandemic wore on.

Please review my Legal Guide titled Making Bail and contact my office if you, a friend or family member are jailed and charged with a crime during this COVID-19 Pandemic. Hiring an effective and competent defense attorney is the best step toward justice. Nowadays, it may save your life.

Access Devices

Access Devices, Bail Jumping, Bellingham Defense Attorney, Evidence, felony, Forgery, Mount Vernon Criminal Defense Attorney, Possession of Stolen Property, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

How to Spot a Forged Check | SQN Banking Systems

In State v. Arno, the WA Court of Appeals Division III held that a paper check presented to a bank is excluded from the definition of an “access device.” Such a paper check will not support a conviction for Second Degree Possession of Stolen Property.

BACKGROUND FACTS

The defendant Mr. Ibrahim Arno brought a forged check for $1,000 to a Wells Fargo Bank in May 2018. He was charged with Forgery and Possession of Stolen Property. While his charges were pending, Mr. Arno missed a court date. He was later charged with Bail Jumping.

The case proceeded to trial. The check was nominally written and bore a signature from the victim Mr. Pinnow. He testified that a box of checks had been stolen from his house in 2017 and that the check in question was one of those that had been stolen. He denied writing the check, and the signature on the check did not match the bank’s records. The account the check was drawn on had been closed earlier after several of the stolen checks were fraudulently cashed.

Regarding the Bail Jumping Charge, Mr. Arno testified that he received a scheduling order with several dates crossed out and was “confused.”

A jury found Mr. Arno guilty of all charges. He appealed the Possession of Stolen Property conviction because the statutory definition of “access device” specifically excludes paper checks from its definition.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying a person is guilty of second degree possession of stolen property if he “possesses a stolen access device.” An “Access device” is defined as “any card, plate, code, account number, or other means of account access that can be used . . . to initiate a transfer of funds, other than a transfer originated solely by paper instrument.”

“Mr. Arno argues that the statute’s plain language excludes an attempt to transfer
funds by presenting a bad check for payment,” said the Court of Appeals. “We agree. If the exclusion is to mean anything, it clearly applies to the presentation of a paper check at a bank.”

The Court of Appeals rejected the State’s arguments that that it was prosecuting Mr. Arno for possessing an account number, not for presenting a forged check. “The record belies the State’s argument,” said the Court. “In addition, it is clear that the State was not charging Mr. Arno for possessing bank account numbers; it was charging him with possession of a stolen check.”

“We hold that a paper check presented to a bank is excluded from the definition of an access device as ‘a transfer originated solely by paper instrument.’ RCW 9A.56.010(1). Thus, there is insufficient evidence to support Mr. Arno’s conviction for second degree possession of stolen property.” ~ WA Court of Appeals

Nevertheless, the Court of appeals affirmed Mr. Arno’s convictions for forgery and bail jumping.

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.

Consensual Seizures

Bellingham Defense Attorney, Constitutional Rights, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

MTS Says Its Officers Aren't Bound by New State Use-of-Force Law

In State v. Meredith, the WA Court of Appeals held that a bus passenger consents to a warrantless search and seizure consisting of a bus fare enforcement officer requests the passenger provide proof of payment.

BACKGROUND FACTS

The defendant Mr. Meredith was riding the Swift regional transit bus in Everett late one morning. Two officers from the Snohomish County Sheriff’s Office boarded to conduct fare enforcement. When conducting fare enforcement, officers would board a bus at a stop and then ask individual passengers for proof of payment while the bus was driving from one stop to the next. A “chase vehicle” would follow the bus to help with identifying and processing anyone ordered off the bus for nonpayment.

Officer Dalton moved to the back of the bus. He began working his way forward and saying “proof of payment or ORCA card” to each passenger in a conversational tone. His partner moved to the front of the bus and worked backward. The bus drove to its next stop while the officers checked for proof of payment.

Officer Dalton requested “proof of payment or ORCA card” from Meredith, who began to check his pants and backpack. Failure to provide proof of payment could result in a notice of infraction or arrest. The bus continued along its route, and Meredith searched for four or five minutes without producing proof of payment. Officer Dalton ordered him to disembark at the next stop, and they left the bus together.

Officer Dalton asked Meredith for his name and identification. Meredith gave a fake name. Officer Dalton radioed dispatch to run the name, and it produced no returns in either Washington or Colorado. Officer Dalton suspected Meredith gave a fake name. Officer Zelaya arrived to help determine Meredith’s identity.

Officer Zelaya used a mobile fingerprint reader to scan Meredith’s fingerprints. He learned Meredith’s real name and that he had two outstanding felony warrants. Meredith was arrested on his warrants and for committing third degree theft of services for nonpayment of fare. He was charged with Making a False Statement to a Public Servant.

Pretrial, Meredith moved to suppress evidence resulting from Officer Dalton’s fare enforcement. The trial court denied the motion. A jury found Meredith guilty of making a false statement. Meredith appealed under arguments that his constitutional rights were violated by the officers when they executed an unauthorized and warrantless seizure.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals said the Washington Constitution  provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Furthermore, the WA Constitution protects against unauthorized seizures by government, despite not using the word “seize.”

However, the Court emphasized that Meredith did not allege his privacy was violated. It reasoned that the analysis does not not depend upon the “privacy” of information requested when police merely request proof of payment on public transit. Therefore, a person can be unlawfully seized without a violation of their privacy.

Next, the Court analyzed whether Meredith validly consented to being seized. “We consider whether his consent was voluntary, whether the seizure was limited to the scope of the consent granted, and whether consent was granted by a party with authority to do so,” said the Court. “We determine whether consent was voluntary by considering the totality of the circumstances from the perspective of a reasonable—meaning innocent—person.”

“Here, Meredith freely chose to contract with Swift Transit for transportation. He agreed to pay and provide proof of payment. And as a reasonable rider, he necessarily understood his duty to pay his fare and provide proof of payment when asked. Thus, like the civilian base visitor in Farkas, Meredith was aware of the possible seizure of his person and consented to it.” ~WA Court of Appeals

The Court concluded by saying Meredith voluntarily consented to Officer Dalton’s initial contact. With that the Court affirmed Meredith’s conviction.

Please review my Search & Seizure Legal Guide and 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.

Policing Mental Health

Bellingham Defense Attorney, Legislation, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Use of Force against Inmates with Mental Disabilities in US Jails and Prisons | HRW

Excellent article in the Olympian by reporter Brandon Block describes how the Washington State Attorney General’s Office is refuting claims by police departments that new reform legislation – HB 1310 – prevents them responding to non-criminal calls.

A confidential memo issued by an Assistant Attorney and a Deputy Solicitor states the following:

“Washington statutes and case law recognize responding to community caretaking calls as part of a law enforcement officer’s duties . . . Bill 1310 does not prohibit peace officers from responding to community caretaking calls, including mental health calls.” ~Assistant Attorney General Shelley Williams and Deputy Solicitor General Alicia O. Young

Police departments across the state have announced drastic cuts to service and characterized those decisions as a response to a series of police reform and accountability laws that went into effect on July 25. Much of the discrepancy in interpretations has centered on HB 1310, which sets a statewide standard for police use of force and establishes an expectation of “reasonable care” for officers.

HB 1310 allows police to use physical force when necessary to make an arrest or prevent an escape, or when there is “an imminent threat of bodily injury” to the officer, person in question, or someone else. It directs officers to exhaust all possible de-escalation tactics before using force. It also directs police to use the least amount of force needed to overcome resistance, and take into account the characteristics of the person, such as whether they are pregnant, a minor, or are cognitively impaired.

The bill offers a list of possible tactics, including taking as much time as needed, repositioning, calling for backup or additional resources such as mental health workers, or leaving the scene “if there is no threat of imminent harm and no crime has been committed, is being committed, or is about to be committed.”

Some law enforcement officials — including the police chiefs in Olympia and Lacey — have interpreted those limitations on use-of-force as instructions not to engage with people until they witness a crime being committed.

“Nothing in the statute’s plain language indicates that specifying permissible uses of force prohibits an officer from responding to community caretaking calls,” the memo reads. “An interpretation that Bill 1310 limits or prohibits law enforcement officers from responding to calls that do not involve a crime — such as community caretaking calls to render aid — is contrary to legislative intent to preserve and protect all human 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.

Trial Security

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Courtroom Security: The Hidden Side of The Criminal Trial - Lee Lofland

In State v. Bejar, the WA Court of Appeals held it was not prejudicial to the defendant’s case for jurors to go through enhanced courtroom security screening on a jury trial involving a gang murder.

BACKGROUND FACTS

Mr. Bejar, Jr. was charged with murder in the first degree with a firearm enhancement and unlawful possession of a firearm in the first degree. The shooting involved a gang war in South King County that was instigated by gang members disrespecting each other over social media. Mr. Bejar was the alleged shooter, and a member of the South Side Locos gang. The victim was a member of the the United Lokotes gang.

At trial, the judge ordered secondary screening strictly for any courtroom observers.

“There’s been allegations of witnesses being assaulted as a result of this ongoing gang war, and in particular Facebook posts that I read provided here refer to different people as being snitches,” said the trial judge. Consequently, he issued the following secondary screening rules:

  1. Persons entering the courtroom may be subjected to secondary screening, including use of a magnetometer, handheld metal detector, and pat down searches. Persons who fail to comply with screening requirements will not be permitted access to the courtroom.
  2. Except as specifically authorized in this document or by separate order of the Court, no cell phones, cameras, or other electronic devices capable of audio or video recording, or component parts of such devices, will be permitted in the courtroom. Persons entering the courtroom may be required to leave such devices with security personnel . . .

The jury convicted Bejar of all crimes as charged. He appealed on arguments that requiring jurors to go through secondary screening was inherently prejudicial.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that the presumption of innocence is a basic component of a fair trial under our system of justice. In order to preserve a defendant’s presumption of innocence before a jury, the defendant is entitled to the physical indicia. This  includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a free and innocent individual.

“Measures which single out a defendant as a particularly dangerous or guilty person threaten his constitutional right to a fair trial,” said the Court of Appeals. “Such measures threaten a defendant’s right to a fair trial because they erode his presumption of innocence; these types of courtroom practices are inherently prejudicial.”

That said, the Court also reasoned that the average juror takes for granted security screenings in courthouses and other similar government buildings. The court emphasized that jurors are used to passing through security screening, including metal detectors and pat down searches, when entering government buildings or government-controlled spaces within buildings, including airports and other transportation hubs, federal buildings, and courts.

“The fact that there was a secondary screening outside the courtroom in the hallway for cell phones did not suggest particular official concern or alarm; it was not an invasive search or conducted by guards with unusual weaponry or armed presence.” ~WA Court of Appeals

Furthermore, reasoned the Court, the secondary screening allowed for a wide range of inferences, including that such screening was designed to guard against disruptions emanating from outside the courtroom.

“The jurors only had to pass through the secondary screening on the first day of trial,” said the Court.  “On all subsequent days, jurors were allowed to bypass the secondary screening with their juror badges. These factors all served to minimize any potential prejudice to the defendants.”

With that, the Court of Appeals ruled that the secondary screening of the jurors on the first day of trial was not inherently prejudicial.

“These secondary security measures did not single out a defendant as a particularly dangerous or guilty person or threaten his constitutional right to a fair trial. The trial court did not abuse its discretion in adopting such measures.” ~WA Court of Appeals

With that, the Court of Appeals affirmed Bejas’ conviction.

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.

Jury Questions

Bellingham Defense Attorney, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Should Jurors Be Allowed to Ask Questions During a Criminal Trial? – GRAND JURY TARGET

In State v. Sutton, the WA Court of Appeals held that, when answering a deliberating jury’s questions, a trial court has a responsibility to ensure that the jury understands the law.

BACKGROUND FACTS

Law enforcement executed a search warrant looking for evidence of drug trafficking at an address on in Newman Lake, Washington. At the property, they found the defendant Ms. Sutton and numerous co-defendants. The ensuing investigation led to Sutton and the co-defendants being arrested for the Kidnapping and Murder.

The State charged Sutton with first degree felony murder predicated on kidnapping, first degree kidnapping, and Leading Organized Crime. With respect to the charge of Leading Organized Crime, the State alleged that Sutton did intentionally organize, manage, and direct three or more persons  with the intent to engage in a pattern of criminal profiteering activity, to-wit: Delivery of a Controlled Substance.

Sutton testified in her defense. She admitted she sold drugs, but denied she sold drugs or directed the co-defendants to commit any crimes.

During deliberations, the jury forwarded a written question to the judge.  “For instruction #25, must the defendant have organized (etc.) all three of the listed persons specifically, or just any 3 or more persons (as instruction #24 states)?”

The judge asked counsel for suggestions on how it should respond to the jury’s question. Both the Prosecutor and Defense Counsel agreed the answer was, “Yes.” Ultimately, the trial judge decided that the best answer was to simply direct the jury to refer back to its instructions. Soon after, the jury returned guilty verdicts.

Sutton appealed her conviction on arguments that the trial court abused its discretion by declining the proposed defense jury instruction that accurately stated the law.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Defendants are guaranteed a fair trial under the Sixth Amendment to the United States Constitution, which requires jury instructions that accurately inform the jury of the relevant law. Furthermore, CrR 6.15(f)(1) permits trial judges to give the jury supplemental written instructions on any point of law after deliberations begin. This is done to ensure a jury is informed of the relevant law.

“A trial court should ensure that the jury understands the law . . . When it is apparent the jury does not understand the law, the trial court may and should issue a supplemental written instruction. A failure to do so is inconsistent with its responsibility to ensure the jury understands the law and risks the jury rendering a verdict contrary to the evidence.” ~WA Court of Appeals

Next, the Court of Appeals addressed whether the trial court should have given a supplemental instruction to clarify the law. It raised and dismissed Mrs. Sutton’s arguments that under State v. Backemeyer, a trial court should ensure that the jury understands the law. “Backemeyer is distinguishable from this case,” said the Court of Appeals. “There, it was clear that the jury misunderstood the law. Here, the to-convict instruction was clear.”

The Court further reasoned that the jury’s question did not create an inference that the entire jury was confused or that any confusion was not clarified.

“At a minimum, the jury’s question showed that some jurors wanted assurance they need not be concerned about the different wording in instruction 24. And because the trial court has a responsibility to ensure that the jury understands the law, it should have answered the jury’s question. It could have answered: ‘To convict Sutton of leading organized crime, the State must prove the elements of that crime as set forth in Instruction 25 beyond a reasonable doubt.’ Nevertheless, the trial court’s decision not to answer the jury’s question was not an abuse of discretion.” ~ WA Court of Appeals.

With that, the Court of Appeals upheld Sutton’s conviction.

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.