I-873: Police Accountability

42 U.S.C. § 1983, Bellingham Defense Attorney, Body camera, Constitutional Rights, Deadly Force, I-873, law enforcement, Legislation, police, Police Misconduct, Race & Law, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

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We’ve all heard it. Killings by police in the line of duty have surged in Washington and the United States over the past decade, according to a Seattle Times analysis. During that period, only one police officer has been criminally charged in state courts with the illegal use of deadly force on the job.

In fact, that case is the only one to be brought in the three decades since Washington enacted the nation’s most restrictive law on holding officers accountable for the unjustified use of deadly force.

Not This Time! and Washington For Good Policing (W4GP) are a grass-roots movements that evolved from the  killing by the Seattle Police Department of Mr. Che Andre Taylor on February 21, 2016. The campaigns  are working to collect 350,000 signatures to put Initiative 873 in front of Washington State’s legislature in January 2017.

This is the first legislative initiative of its kind in the nation that would put forth police accountability. If passed, the legislative initiative may be a model for other states.

The initiative appears to be gaining momentum. It is endorsed by the Seattle Police Department, the ACLU of Washington, numerous state senators, Seattle Mayor Ed Murray, Seattle City Attorney Pete Holmes, Kshama Sawant and Lorena Gonzalez of the Seattle City Council, Lisa Duggaard of the Public Defenders Association, Jim Cooper and Jessica Bateman of the Olympia City Council.

Also, the following newspapers and media outlets have discussed and encouraged the passage of the bill:

It’s refreshing that I-873 has such a broad range of support, especially from the Seattle Police Department. Let’s move forward with the hope that holding officers accountable for unjustified shootings increases respect for police and professionalism within police ranks. For sure, it’s step in the right direction.

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.

Corpus Delicti & Murder Confessions

Accomplice, Bellingham Defense Attorney, Corpus Delicti, Evidence, felony, Firearm, Forensics, Homicide & Manslaughter, Ineffective Assistance, Interrogation, Jury Trial, Self-Incrimination, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Young, the WA Court of Appeals Division II decided the defendant’s confession to murder was properly admitted because the State presented ample independent evidence of (1) the fact of death, and (2) a causal connection between the death and a criminal act.

On the morning of July 4, 2013, John Young entered the Desert Food Mart in Benton City and asked the cashier to call 911 because he had witnessed a shooting of a man named Jacob. Police were summoned. As the investigation proceeded, Mr. Young became a suspect. He was brought in for questioning, and consented to audio and video recording of an interview.

During the interview, an officer read Mr. Young Miranda warnings and obtained his agreement that he understood he was now a suspect and any statements he made could be used against him. Mr. Young then confessed that Jacob was involved in a drug deal gone wrong. With the assistance of an accomplice named Joshua Hunt,  Mr. Young admitted he fired one shot into Jacob’s head near the temple-cheek region, killing him.

Mr. Young also confessed that he and Mr. Hunt disposed of their shoes and gun by putting the items into a backpack and throwing the backpack into a river. Later, police recovered the shoes and gun.  The shoes matched footprints and shoe patterns that had been found in the sand near Jacob’s body. The Washington State Patrol Crime Laboratory determined that all of the bullets recovered from the crime scene had been fired from the Charter pistol found in the backpack.

Mr. Young was charged with first degree murder.

During a 3.5 hearing, Young’s attorney lawyer stipulated to the admission of the videotaped interview, telling the court:

“We believe it’s in our interests to actually stipulate to the 3.5 hearing, and I’ve discussed that with Mr. Young, and I know the Court will make its own inquiries, but he knows and understands he has a right to that hearing, but we believe it’s in our benefit and strategic interest to proceed with the stipulation.”

The court questioned Mr. Young, who stated he understood he had a right to a hearing on the admissibility of the statements but was agreeing instead that all of his statements were admissible.

During trial, Mr. Young’s videotaped confession was played for the jury. At the conclusion of the evidence, the jury returned a guilty verdict. Mr. Young appeals.

Mr. Young argued his defense counsel provided ineffective assistance of counsel by stipulating to the admission of Mr. Young’s confession when there was no independent evidence apart from his confession, under the corpus delecti rule, sufficient to establish all the elements of first degree murder.

For those who don’t know, corpus delicti is a term from Western jurisprudence referring to the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime.

The Court of Appeals rejected Young’s arguments. It reasoned that in a homicide case, the corpus delecti generally consists of two elements: (1) the fact of death, and (2) a causal connection between the death and a criminal act. It can be proved by direct or circumstantial evidence, which need not be enough to support a conviction or send the case to the jury. In assessing whether there is sufficient evidence of the corpus delicti independent of a defendant’s statements, the Court assumes the truth of the State’s evidence and all reasonable inferences from it in a light most favorable to the State.

Here, the corpus of the crime of murder was amply established by (1) a dead person; (2) multiple gunshot wounds that established a casual connection with a criminal act; (3) testimony eliminating the possibility of self-inflicted wounds; and (4) the recovery of the weapon miles away from the dead body.

Furthermore, the Court reasoned that the State is not required to present independent evidence of the defendant’s mental state. It reasoned the State is not required to present independent evidence sufficient to demonstrate anything other than the fact of death and a causal connection between the death and a criminal act.

Finally, the Court rejected Mr. Young’s claims of ineffective assistance of counsel:

“It appears from his closing argument that Mr. Young’s trial lawyer believed his client’s videotaped interview would advance that argument. Mr. Young fails to demonstrate that his trial lawyer lacked a strategic reason for the stipulation.”

With that, the Court of Appeals confirmed Mr. Young’s conviction.

My opinion? This case represents a fairly straightforward analysis of the corpus delicti defense. I’ve had great success when it applies, and have managed to get many criminal charges reduced or dismissed under this defense. However, the corpus delicti defense is extremely narrow.

Aside from the defendant’s confession, there must be virtually NO independent evidence connecting the defendant to the crime. Here, other evidence existed which implicated Mr. Young and the defense was found inapplicable.

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.

Marijuana Arrests Increase.

ACLU, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jail, marijuana, Plain View, police, Prison, Race & Law, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

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Excellent article from reporter Timothy Williams of the New York Times discusses a new study by the American Civil Liberties Union and Human Rights Watch which reveals that marijuana arrests were about 13.6 percent more than the 505,681 arrests made for all violent crimes, including murder, rape and serious assaults.

The report comes in the wake of the fatal police shooting of Keith Lamont Scott last month in Charlotte, N.C. Mr. Scott, 43, had attracted police attention in part because, the police said, he was smoking marijuana.

The report is the latest study to highlight the disparate treatment African-Americans often receive in the criminal justice system, including disproportionate numbers of blacks who are sent to jail when they are unable to pay court-imposed fees, or stopped by the police during traffic stops or while riding bicycles. Its many findings are disturbing.

THE REPORT’S FINDINGS:

  • Although whites are more likely than blacks to use illicit drugs — including marijuana, cocaine, heroin, methamphetamine and prescription drugs for nonmedical purposes — black adults were more than two-and-a-half times as likely to be arrested.
  • In Iowa, Montana and Vermont — places with relatively small populations of African Americans — blacks were more than six times as likely to be arrested on drug possession charges than whites.
  • In terms of marijuana possession, black adults were more than four times as likely to be arrested as white adults in the 39 states in which sufficient data was available.
  • In Manhattan, where blacks make up about 15 percent of the population, African-Americans are nearly 11 times as likely as whites to be arrested on drug possession.
  • African-Americans may also be more apt to face arrest, according to researchers, because they might be more likely to smoke marijuana outdoors, attracting the attention of the police.
  • The above disparities persist whether there are few or many African-Americans in a given area.

Mr. Williams also wrote that, according to criminologists, African-Americans are arrested more often than whites and others for drug possession in large part because of questionable police practices. Police departments, for example, typically send large numbers of officers to neighborhoods that have high crime rates. A result is that any offense — including minor ones like loitering, jaywalking or smoking marijuana — can lead to an arrest, which in turn drives up arrest rate statistics, leading to even greater police vigilance.

“It is selective enforcement, and the example I like to use is that you have all sorts of drug use inside elite college dorms, but you don’t see the police busting through doors,” said Inimai M. Chettiar, director of the Justice Program at New York University’s Brennan Center for Justice.

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.

Recorded Arguments & Privacy.

Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Domestic Violence, Evidence, Forensics, law enforcement, Pretrial Investigations, Privacy, Self-Incrimination, Skagit County Criminal Defense, Technology, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Smith, the WA Court of Appeals Division II held that an accidentally recorded argument between the defendant and his wife was improperly admitted at trial and violated the Washington Privacy Act.

John and Sheryl were a married couple. On June 2, 2013, they were in their residence drinking. They became intoxicated and began to argue. John began to beat and strangle Sheryl, who lost consciousness due to the strangling. Sometime during the attack, John used the residence’s landline telephone to try to locate his cell phone.

Unable to do so, he was unaware that his actions activated his cell phone’s voice mail function, which started recording part of the dispute. In that recording, John is heard yelling insults at Sheryl. Sheryl responded to these statements by screaming unintelligibly or asking him to stop or leave her alone. At one point during the recording, Sheryl tells John to “Get away,” to which he responds, “No way. I will kill you.”

Shortly after the voice mail was recorded, John left the residence. Sheryl called 911 and reported that John had beaten her. A police officer with the Vancouver Police Department arrived at the residence, and Sheryl was transported to the hospital. John’s cell phone was retrieved and taken by the police. John was later arrested and charged with first degree attempted murder (domestic violence), second degree attempted murder (domestic violence), first degree assault (domestic violence), and second degree assault (domestic violence).

Before trial, John moved to suppress the cell phone voice mail recording based on RCW 9.73.030, which applies to intercepting, recording and/or the divulging of private communications under the WA Privacy Act. The trial court held a CrR 3.6 hearing and denied his motion.

At John’s bench trial, the recorded voice mail, 911 phone calls, and photographs of Sheryl’s injuries were admitted into evidence. The trial court found John guilty of second degree attempted murder and second degree assault, both with domestic violence enhancements.

John appealed on three issues: (1) whether the recorded voice mail’s contents are a conversation; (2) if the contents are a conversation, whether it was private; and (3) if a private conversation, whether it was recorded or intercepted.

For the following reasons, the Court held that John recorded a private conversation in violation of RCW 9.73.030.

1. DID A CONVERSATION TAKE PLACE?

Amidst screaming from Sheryl, the following communications took place:

John: “You think you’re bleeding?. . . . You’re the most fucked up person. Give me back the phone.”

Sheryl: “Get away.”

John: “No way. I will kill you.”

Sheryl: “I know.”

John: “Did you want to kill me? Give me back my phone.”

Sheryl: “No. Leave me alone.”

The Court reasoned that the contents of the recorded voice mail constituted a conversation. Although Sheryl’s screams alone would not constitute a conversation, these screams were responsive to statements that John was making to Sheryl and were scattered throughout the entire dispute, which contained repeated verbal exchanges between the two individuals as outlined above. Within this context, Sheryl’s screams serve as an expression of sentiments responsive to John’s yelling and thus constitute part of a conversation.

2. WAS THE CONVERSATION PRIVATE?

The Court held that the conversation was private. Here, a domestic dispute occurred between two married persons in the privacy of their home. It reasoned that the location of the conversation, the relationship between the parties, and the absence of third parties all declare the privacy of the conversation. Therefore, reasoned the Court, John had a “subjective intention and reasonable expectation that the conversation with Sheryl would be private.”

3. IF THE CONVERSATION WAS PRIVATE, WAS IT RECORDED OR INTERCEPTED?

The Court held that the WA Privacy Act was violated when John accidentally recorded a private conversation without Sheryl’s consent. It reasoned that the WA Privacy Act requires the consent of all parties to a private conversation. Further, the case law has implied that no third party is required to record a conversation. In other words, a party to a private conversation can also be the person who impermissibly records the conversation. Thus, reasoned the Court, John’s recording of this conversation can violate the privacy act, even though he accidentally made himself a party to it.

Based on the above, the Court reversed and remanded the second degree attempted murder conviction, but affirmed the second degree assault conviction.

My opinion? Although my sympathies go out to the victim, the Court’s decision was correct. Privacy is a mysterious subject matter in our ever-changing world. Cell phones and other devices allow us to record anything, any time, anywhere. The fact is, most of us don’t know even know we’re even being recorded in our daily lives. So you can imagine a scenario where accidental recordings become the subject for intense litigation.

Many clients ask me if recorded conversations between themselves and alleged victims/witnesses are admissible at trial. Clearly, the answer is “No” under the WA Privacy Act unless the participants are (1) aware that their conversation is being recorded, and (2) expressly consent to the recording. Interesting stuff. This case was a good decision upholding our privacy rights in the face of today’s technological advancements.

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.

Lawnmowers Aren’t Vehicles

"Plain Meaning" Rule, Bellingham Defense Attorney, felony, Property Crimes, Skagit County Criminal Defense, Theft, Theft of Motor Vehicle, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Barnes, the WA Court of Appeals Division III held that a riding lawnmower is not a “motor vehicle” for the the crime of Theft of a Motor Vehicle.

On June 22, 2015, defendant Joshua Barnes and a female companion, Danielle Goodman, drove a white pickup to Judy Fraker’s property near Leavenworth. Fraker was home. Barnes exited the pickup, mounted Fraker’s riding lawnmower, and started the mower’s motor. The mower was a Craftsman, gas-powered, self-propelled riding lawnmower, with a twenty-six horse power engine. Barnes drove the lawnmower up a ramp and into the bed of his pickup.

Fraker exited her home, confronted Barnes, ordered him to remove her lawnmower from his pickup and leave her premises. Barnes obeyed. Two days later, Barnes admitted to law enforcement that he attempted to steal the riding lawnmower.

The State of Washington charged Barnes with Theft of a Motor Vehicle, Driving With License Suspended in the Third Degree, and Criminal Trespass in the Second Degree. Barnes argued a Knapstad Motion to dismiss the allegation of Theft of a Motor Vehicle under arguments that the evidence was insufficient because a lawnmower is not a “motor vehicle.” The trial court agreed and dismissed the charge of theft of a motor vehicle without prejudice. The State pursued appealed.

The Court began by saying that Washington follows the “Plain Meaning” rule. In other words, to determine legislative intent, this court looks first to the language of the statute. If the statute’s meaning is plain on its face, the court will give effect to that plain meaning as the expression of what was intended. Here, the Court reasoned that a riding lawnmower meets the elements· of ‘motor vehicle’ if we read RCW 46.04.320 and .670 literally.

Nevertheless – and in a surprising twist – the Court questioned whether we should always follow the Plain Meaning principle. First, “The legislature sometimes uses inept language in expressing its intent,” reasoned the Court. Second, courts should interpret statutes to affect their purpose. “Therefore, any unlikely, absurd, or strained consequences resulting from a plain and literal reading of the statute should be avoided and a literal reading of RCW 46.04.320 and its definition of “motor vehicle” would lead to unintended and silly results,” reasoned the Court:

“As argued by Joshua Barnes, a literal reading of RCW 46.04.320 and its definition of ‘motor vehicle’ would lead to unintended and silly results. An iRobot Roomba, a self-propelled vacuum, would be a motor vehicle, since one could transport small property on the Roomba. A jokester could place her cat on top of the vacuum and send the iRobot Roomba down her neighborhood street. Theft of a child’s remote control car that includes a doll in the driver’s seat would also qualify for theft of a motor vehicle if we literally read RCW 46.04.320 and .670. Therefore, the purposes behind RCW 9A.56.065 should assist in limiting a literal meaning of the ‘motor vehicle’ definition.”

With that, the Court of Appeals affirmed the superior court’s dismissal of charges against Joshua Barnes for theft of a motor vehicle. “A riding lawnmower is not a motor vehicle for purposes of theft.”

My opinion? Good decision. I’ve argued many pretrial motions where my opponent’s statutory interpretations lead to absurd results. Sometimes, we must point out the obvious.

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.

Panhandling is Free Speech

ACLU, Bellingham Defense Attorney, Constitutional Rights, First Amendment, misdemeanor, Panhandling, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense

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 In  City of Lakewood v. Willis, the WA Supreme Court held that a Lakewood Municipal Ordinance that prohibited begging near highways and intersections of major highways violated the First Amendment.
Mr. Willis was standing near an exit ramp from I-5 in Lakewood and holding a sign saying he was disabled and needed help.  An officer cited Mr. Willis for “Aggressive Begging,” a crime under Lakewood Municipal Code (LMC) 9A.04.020A.
At trial, the jury found Mr. Willis guilty. The municipal court sentenced him to 90 days in jail and a fine of $1,000, with 90 days and $750 suspended. The court also assessed $125 in costs. Mr. Willis appealed, raising several constitutional challenges to the statute.
On appeal, the WA Supreme Court reasoned that although the government can impose certain restrictions on speech in a public forum, such as reasonable time, place, and manner restrictions; it cannot impose restrictions based on content. Consequently, Willis may challenge the ordinance as facially overbroad regardless of his conduct. “Because both provisions impose a content-based speech restriction in a substantial number of traditional public forums, Willis’ facial challenge succeeds. Thus, his conviction must be reversed.”
My opinion? This is a great decision, and should be helpful to defense attorneys in other municipalities with ordinances that limit and outlaw panhandling.  Sure, aggressive panhandling from the homeless is annoying. However, it should not be criminalized. It wastes taxpayer money to incarcerate the homeless on these charges. Next thing you know, the Girl Scouts of America will be jailed for selling cookies at your grocery store.
Big congratulations to attorney David Ionnotti, who represented Mr. Willis.  The ACLU and Washington Defender Association filed one amicus brief in the case, and the Seattle/King County Coalition on Homelessness filed another.

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 Aren’t Liable to Control Released Inmates.

Bellingham Defense Attorney, Department of Corrections, Duty to Control, Jail, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In Binschus v. Skagit County, the WA Supreme Court held a jail’s duty to supervise and control inmates during incarceration does not include a general duty to somehow prevent inmates from committing crimes after they are lawfully released from incarceration.

Isaac Zamora was incarcerated at Skagit County Jail for nonviolent crimes from April 4, 2008, until May 29, 2008, when he was transferred to Okanogan County Corrections Center. Zamora then served the rest of his sentence at Okanogan County Corrections Center and was released on August 2, 2008.

On September 2, 2008, Zamora had a psychotic episode and went on a shooting spree in Skagit County. He ultimately killed six people and injured several others.

Some of his victims and their families sued a number of parties, including Skagit County. The plaintiffs alleged that Skagit County failed to exercise ordinary and reasonable care while Zamora was incarcerated in Skagit County Jail several months prior to the shooting.

The trial judge granted summary judgment to Skagit County and ultimately dismissed the causes of action against the Skagit County jail. The Court of Appeals reversed. Ultimately, the case was appealed to the WA Supreme Court.

The Court reasoned that, as a general rule, people and institutions are not responsible for preventing a person from physically harming others. However, there is an exception when a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.

Although the  “duty to control” relationship naturally extends between a jail and an inmate, the court clarified, when the relationship begins and when it ends:

“We did not previously, and do not today, expand it to a general duty to prevent a person from committing criminal acts in the future . . . The practical implications of imposing such a broad duty on jails are striking. By some estimates, the recidivism rate is well over 50 percent . . . Thus, one could argue that in almost any case, it is foreseeable that an inmate may commit another crime after release. Are jails civilly liable for those crimes if they failed to take adequate measures to prevent that foreseeable recidivism? Such an expansive interpretation is not supported . . .”

With that, the WA Supreme Court concluded that jails have a responsibility to control violent inmates while they are incarcerated, but they do not have a general duty to prevent such inmates from committing crimes after they are lawfully released from incarceration.

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.

Deadly Force Not Justified.

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Deadly Force, law enforcement, Police Misconduct, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In A.K.H. v. City of Tustin, the Ninth Circuit Court of Appeals held the government could not justify a police officer’s use of deadly force during the officer’s attempted investigatory stop of Mr. Herrera.

FACTS & PROCEDURAL HISTORY.

Defendant Osvaldo Villarreal, a police officer in Tustin, California, fatally shot Benny Herrera during an attempted investigatory stop. Herrera was on foot. Officer Villarreal was in his patrol car and had just driven up beside Herrera. Herrera was in the middle of the roadway, moving in the direction of traffic. His left hand was free and visible; his right hand was in his sweatshirt pocket. Villarreal commanded Herrera to take his hand out of his pocket. Less than a second later, just as Herrera’s hand came out of his pocket, Villarreal shot him twice, killing him. Herrera was unarmed. Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand.

Relatives of Herrera (“Plaintiffs”) filed suit under 42 U.S.C. § 1983 against Officer Villarreal and the City of Tustin alleging that Villarreal used excessive force against Herrera in violation of the Fourth Amendment. Villarreal moved for summary judgment based on qualified immunity, which would have effectively dismissed the lawsuit against him. However, the federal district court denied the Officer’s motion.

Officer Villarreal brought an interlocutory appeal to the Ninth Circuit Court of Appeals. He argued that, even viewing the evidence in the light most favorable to the plaintiffs, his actions did not violate the Fourth Amendment and that the district court therefore erred in denying him qualified immunity.

THE ISSUES.

The Ninth Circuit reasoned it must ask two questions to determine whether Officer Villarreal is entitled to summary judgment based on qualified immunity. First, viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment? Second, if Villarreal used excessive force, did he violate a clearly established right?

THE COURT’S ANALYSIS.

Quoting Tennessee v. Garner, the Ninth Circuit reasoned that Deadly Force is permissible only if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.

Here, the Ninth Circuit found Officer Herrera used excessive force in violation of Mr. Herrera’s Fourth Amendment rights. The Court reasoned that (1) the crime at issue was a domestic dispute that had ended before the police became involved; (2) the deceased did not pose an immediate threat to the safety of the officers or others, as the officer did not believe the deceased was armed and the officer did not see a weapon; (3) although the deceased did not comply with the officer’s commands to remove his hand from his sweatshirt pocket, he did not attempt to flee; and (4) the officer escalated to deadly force approximately 1 second after issuing the command to the deceased to remove his hand from his pocket. “Viewing the evidence in the light most favorable to the plaintiffs, we conclude that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera.”

CONCLUSION.

In its conclusion, the Ninth Circuit said the following:

“It has long been clear that a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. Viewing the evidence in the light most favorable to the plaintiffs, that is precisely what Officer Villarreal did here.”

My opinion? Great decision. Straightforward, direct, constitutionally sound and accurate. I’m happy the Ninth Circuit saw this case for what it was.

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.

“Stop & Frisk” of Friends

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, law enforcement, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Flores, the WA Supreme Court  decided that police officers may seize a defendant’s companions if officers can articulate a reason based specifically on safety concerns for the officers, the arrestee, his or her companions, or other citizens.
 On November 2, 2013, an anonymous source reported to the Moses Lake Police Department that Giovanni Powell pointed a gun at someone’s head. Officer Kyle McCain was first to arrive at the scene of the incident. Officer McCain was familiar with Powell, and was soon updated that Powell had an arrest warrant.
 Officer McCain arrived at the reported address. He observed Powell, whom he recognized, and another person (later identified as Flores) walking down the street together. McCain did not recognize Flores and did not have any reason to suspect Flores of criminal activity.
 McCain parked across the street from Powell and Flores, got out of his car, drew his side arm, held it pointed at the ground, and ordered Powell to stop. As this was occurring, other officers arrived. Mr. Flores told officer he possessed a firearm in his pants. It was removed and secured. The State charged Flores with Unlawful Possession of a Firearm in the First Degree.
 Flores brought a CrR 3.6 motion to suppress all evidence of the gun. The judge granted the motion, which ultimately resulted in dismissal of the charges. The State appealed, and Division Three of the Court of Appeals affirmed the dismissal. The State appealed again to the WA Supreme Court.
 The court addressed the issue of whether it violates article I, section 7 of the Washington State Constitution for an officer to seize the nonarrested companion of an arrestee to secure the scene of an arrest.
 The court reasoned that an individual is seized when, under the circumstances, an individual’s freedom of movement is restrained and the individual would not believe he is free to leave or decline a request due to an officer’s use of force or display of authority. State v. Rankin. This determination is made by objectively looking at the actions of the law enforcement officer.
 The court reasoned that an officer does not meet the standard required for a Terry stop in cases like this: “Terry must be met if the purpose of the officer’s interaction with the passenger is investigatory. For purposes of controlling the scene of the traffic stop and to preserve safety there, we apply the standard of an objective rationale.”
 Consequently, the Court gave factors from the WA Court of Appeals Div. III  decision State v. Mendes for determining what “an objective rationale” means when it comes to seizing a defendant’s companions. These Mendes factors include (but are not limited to) the arrest, the number of officers, the number of people present at the scene of the arrest, the time of day, the behavior of those present at the scene, the location of the arrest, the presence or suspected presence of a weapon, the officer’s knowledge of the arrestee or the companions and potentially affected citizens.
 “This is not an exhaustive list, and no one factor by itself justifies an officer’s seizure of non-arrested companions,” said the Court. “When determining whether there is an objective rationale, the court should look at all the circumstances present at the scene of the arrest.”
 Applying this “Objective Rationale Test,” the Court found that Officer McCain justifiably seized Mr. Flores to secure the scene of Powell ‘s arrest, and that the Officer’s actions were justified. The WA Supreme Court reversed the Court of Appeals, found the seizure was lawful and ruled the evidence of the gun should not have been suppressed.
 Justice McCloud dissented under arguments that officers must comply with Terry at the scene of an arrest, and that the new “Objective Rationale Test” adopted by the Court effectively circumvented time-tested case law:
“This holding creates a new exception to the Fourth Amendment’s warrant requirement, and we don’t have the power to create it–only the (United States) Supreme Court does. It’s also a new exception to our court’s consistent statements, for decades, that article I, section 7 provides more protection for individual privacy rights than the Fourth Amendment.”
 My opinion? The officers would have eventually found Mr. Flores’s firearm anyway if they followed protocol under a Terry stop. But they didn’t. Therefore, and similar to Justice McCloud, I’m concerned whether the “Objective Rationale Test” was wrongfully created to become another exception to the Fourth Amendment’s warrant requirement.

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.

“Voodoo Science” Debunked

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, DNA, Due Process, Evidence, Forensics, Homicide & Manslaughter, Prison, Prosecutorial Misconduct, Race & Law, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

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Interesting article from the Wall Street Journal written Alex Kozinski , a judge on the Ninth Circuit Court of Appeals since 1985, discusses how the U.S. has relied on flawed forensic evidence techniques for decades, resulting in false convictions.

According to Judge Kozinski, the White House released a report that fundamentally changes the way many criminal trials are conducted. The new study from the President’s Council of Advisors on Science and Technology (PCAST) examines the scientific validity of forensic-evidence techniques—DNA, fingerprint, bitemark, firearm, footwear and hair analysis. It concludes that virtually all of these methods are flawed, some irredeemably so.

The study indicates that only the most basic form of DNA analysis is scientifically reliable. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms, says Judge Kozinski, “Bitemark analysis is about as reliable as astrology.” Yet many unfortunate defendants languish in prison based on bad science.

Even more disturbing, the article states that forensic scientists – who are often members of the prosecution team – sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury, says Judge Kozinski. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Apparently, problems with forensic evidence have plagued the criminal-justice system for years.

The PCAST report recommends developing standards for validating forensic methods, training forensic examiners and making forensic labs independent of police and prosecutors. “All should be swiftly implemented,” says Judge Kozinski, who adds that preventing the incarceration and execution of innocent persons is as good a use of tax dollars as any:

“Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.”

My opinion? Jurors rely HEAVILY on forensic evidence in their deliberations. And it makes sense: it’s a huge task to weigh evidence and sift through the rhetoric of arguments from the prosecution and defense. Cold, hard, quantifiable and scientific facts make it easy for jurors to render decisions.

Consequently, the information from this report is both good and bad news. It’s good because the truth about  “voodoo science” in the courtroom has finally surfaced to the mainstream. It’s bad because hundreds, if not thousands of innocent people are convicted of crimes and serve years in prison based on unreliable evidence for crimes they didn’t commit.

Fortunately, there’s hope. According to Judge Kozinski, the report “provides a road map for defense lawyers to challenge prosecution experts.” Excellent.

Competent attorneys should immediately gain an understanding of challenging prosecution experts who bring voodoo science in the courtroom. It’s the only way to shed light on this grim subject and bring justice to our courts.

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.