Backpack Searches When Jailed

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In State v. Dunham, the WA Court of Appeals Division II decided that a warrantless search of a suspect’s locked backpack pocket was a lawful inventory search where the defendant was booked into jail, a search of his person produced knives, the backpack was to be logged into the jail’s temporary storage area and the officer felt knives on the outside of the backpack.

On January 29, 2014, Sergeant Gwen Carrell of the Chehalis Police Department responded to a reported shoplifting at a local department store. Upon arrival, Sgt. Carrell met with loss prevention officers. They told Sgt. Carrell that defendant Jason Dunham had multiple knives in his backpack and that they had removed the backpack from Dunham’s reach. Sgt. Carrell placed Dunham in handcuffs for officer safety and searched him for weapons. She located two more knives on Dunham’s person, arrested Dunham for theft and booked him into jail.

Sgt. Carrell searched Dunham’s backpack for items to be logged into the jail’s temporary storage. This is called an inventory search. In short, it is every police department’s policy to inventory items to be held in its storage facility for any dangerous items. As part of this policy, knives are to be kept in secure containers, preventing them from puncturing anything.

Sgt. Carrell used Dunham’s keys to unlock the backpack pocket. She opened the pocket and observed a flashlight, a butane torch, and a glass pipe. What Sgt. Carrell thought was a knife was actually the butane torch. The residue in the glass pipe tested positive for methamphetamine. The State charged Dunham with Possession of a Controlled Substance and Theft in the Third Degree.

Dunham filed a motion to suppress the evidence found during Sgt. Carrell’s search of the locked portion of his backpack pursuant to CrR 3.6, arguing that the search violated his constitutional rights. The trial court denied the motion and ruled that the inventory search was valid. Later, the trial court found him guilty on both counts at a bench trial.

Dunham appealed. He argued that the warrantless search of his backpack’s locked pocket violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. He claims that the search was not a valid inventory search.

Unfortunately for Dunham the Court of Appeals disagreed. First it reasoned that  inventory searches are an exception to the requirement that police have a warrant to search people’s personal property. Second, the Court described the purpose of an Inventory Search:

“The purpose of an inventory search is not to discover evidence of a crime, but to perform an administrative or caretaking function. The principal purposes of an inventory search are to (1) protect the owner’s property, (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger. The scope of an inventory search should be limited to those areas necessary to fulfill its purpose.”

Third, the Court reasoned that Officer Carrel’s safety concern about potentially exposed knives in the locked pocket was reasonable based on the facts that (1) several knives were found on Dunham’s person, (2) additional knives were found in the unlocked portion of Dunham’s backpack, (3) one of the knives found in the backpack was unsheathed, and (4) Sgt. Carrell felt what she believed to be another knife in the locked pocket of the backpack. Therefore, a manifest necessity existed for searching the locked portion of the backpack.

Finally, the Court concluded that the inventory search was valid and affirmed Dunham’s conviction:

“Substantial evidence supports the challenged finding of fact. Given the reasonable indication that the locked portion of the backpack contained dangerous items along with Sgt. Carrell’s reasonable fear of being stabbed, we hold that a manifest necessity existed to search No. 46169-2-II 8 inside the locked portion of the backpack. Therefore the trial court’s findings of fact support its conclusion that the inventory search was valid. We affirm Dunham’s conviction.”

My opinion? Search and seizure issues are a HUGE aspect of unlawful possession cases. The legal issues come down to whether the search was lawful, and if not, whether the evidence can be suppressed. Here, the court’s decision appears sound. Under Washington law, officers may search a suspect’s person if they feel “hard and sharp” objects through the outside of a suspect’s clothing. This is done for officer safety. Similarly, Inventory Searches are conducted under the same policy of preserving officer safety. Here, the hard and sharp objects felt through Dunham’s backpack raised a safety concern. Therefore, the search appears lawful.

For more information, please review my Legal Guide titled, “Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.” There, I provide links to my analysis of Washington cases discussing searches of persons, vehicles, cars and homes. Also, please go the search engine of my Blog if you have specific queries about these issues.

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. Ashley: Prior Bad Acts of DV

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In  State v. Ashley, the WA Supreme Court decided a trial court properly admitted evidence of the defendant’s prior acts of domestic violence against the victim. Here, defendant Baron Ashley was charged with Unlawful Imprisonment Domestic Violence (DV) for detaining his girlfriend Makayla Gamble in the bathroom without her consent.

Apparently, Ashley and the victim Makayla Gamble had a long-term DV relationship. Gamble testified that Ashley had physically abused her in the past. She explained that she had been in a relationship with Ashley for several years and that he had abused her multiple times during that relationship. In total, Gamble described four specific instances of abuse, including three instances when Gamble was pregnant. Gamble explained that she suffered bruises, black eyes, and a popped eardrum as a result of these attacks, but that she called the police only once and later retracted her complaint because she loved Ashley. Specifically, Gamble testified that these instances affected her decision to get into the bathroom when instructed.

The jury found Ashley guilty as charged.

On appeal, Ashley argued the trial court wrongfully admitted evidence of his prior misconduct under Evidence Rule (ER) 404(b). The Court of Appeals affirmed his conviction, and the WA Supreme Court granted review. ER 404(b) provides in full:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. By its plain language, the rule absolutely prohibits certain types of evidence from being used “to prove the character of a person in order to show action in conformity therewith,” but allows that same evidence to be introduced for any other purpose, depending on its relevance and the balancing of its probative value and danger of unfair prejudice.

The Court  explained that ER 404(b) prohibits certain types of evidence from being
used “to prove the character of a person in order to show action in conformity
therewith,” but allows that same evidence to be introduced for any other purpose,
depending on its relevance and the balancing of its probative value and danger of
unfair prejudice. The Court also referred to its four-part test to determine if ER 404(b) evidence is admissible:

“To admit evidence of a person’s prior misconduct, the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be
introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.”

Here, Defendant Ashley argued that the State did not establish that the incidents of prior domestic violence even occurred. He also said that this evidence was irrelevant to Gamble’s credibility and to the elements of the crime, and that the prejudice of the prior bad acts dramatically outweighed any probative value of the evidence.

However, the WA Supreme Court rejected Ashley’s arguments.

The Court decided the Prosecution satisfied the first prong of the test: “The trial court heard undisputed testimony describing a series of instances of domestic violence by Ashley against Gamble and reviewed a 2004 police report. The trial court found Gamble’s testimony credible. Ashley presents no legal or factual argument for disturbing this finding; he simply disagrees with it.”

The Court also found the prosecution satisfied the second and third prong of the test:

“The State’s theory was that Ashley intimidated Gamble, forcing her to remain in the bathroom. The trial court found that the State demonstrated that Ashley’s history of domestic abuse against Gamble was highly probative of whether Ashley restrained Gamble using intimidation and fear based on this history of domestic abuse. Essentially, the trial court found-and the Court of Appeals agreed-that the domestic violence evidence was both material and relevant to Gamble’s lack of consent and to whether Ashley restrained Gamble by intimidation. We agree.”

Finally, the Court held the Prosecution satisfied the fourth prong of the test:

“Here, the trial court properly balanced these interests, concluding that Ashley’s long history of domestic violence toward Gamble was highly probative in assessing whether Ashley intimidated Gamble, such that she was restrained without her consent.”

In conclusion, the Court held that the trial court undertook the proper ER 404(b) analysis, the domestic violence evidence presented was highly probative of the victim’s lack of consent, and the State met its burden of demonstrating the evidence’s overriding probative value to establish a necessary element of the crime. However, the Court also held that the trial court committed harmless error by instructing the jurors that they could consider the evidence for the purpose of bolstering Gamble’s credibility. Ashley’s conviction was affirmed.

For more information on Domestic Violence issues please review my Legal Guide titled “Defending Against Domestic Violence Charges.” There, I provide links to my analysis of Washington cases discussing domestic violence. Also, please go the search engine of my Blog if you have specific queries about these issues.

And 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.

Good luck!

Utah v. Strieff: High Court Upholds Unlawful Search

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In Utah v. Strieff, the U.S. Supreme Court held in a 5-3 vote that an illegal police stop and resulting drug arrest did not ultimately violate the Fourth Amendment because the officer later discovered the defendant had an outstanding traffic warrant.

The case began when a police officer stopped Edward Strieff on the street and ran his identification. The state of Utah concedes that this was an illegal police stop. However, when the Officer ran Strieff’s identification, it was discovered that Strieff had an outstanding traffic warrant. The officer then arrested him, searched him, and discovered drugs in his pockets. Strieff argued that the drugs should have been inadmissible under the Fourth Amendment because they are the fruits of an illegal search.

In an opinion authored by Justice Clarence Thomas, the U.S. Supreme Court disagreed with Mr. Strieff, ruled for the State, and found there was no flagrant police misconduct:

“The evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”

Furthermore, the Court also noted that although the Exclusionary Rule prohibits the admissibility of evidence which is illegally seized in violation of people’s Constitutional rights, there are several exceptions to the rule. One exception is the Attenuation Doctrine, which admits typically inadmissible evidence when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance.

The Court reasoned that the Attenuation Doctrine therefore applies here, where the intervening circumstance is the discovery of a valid, pre-existing, and untainted arrest warrant: “Assuming, without deciding, that Officer Fackrell lacked reasonable suspicion to stop Strieff initially, the discovery of that arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to his arrest.” Justice Thomas’s majority opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito.

Writing in dissent, Justice Sonia Sotomayor blasted the majority for excusing police misconduct and undermining the Fourth Amendment:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic war rants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.”

“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

My opinion? I agree with Sotomayor’s dissent. Utah v. Strieff is a terrible blow to every American’s Fourth Amendment rights to be free from unlawful and intrusive government searches. Period.

That aside, will Utah v. Strieff negatively impact the constitutional rights of citizens in Washington State? Probably not. We already have time-tested precedents like State v. Doughty, State v. Afana and State v. Winterstein. All of these WA Supreme Court cases – and more – are recent opinions that are factually similar to Utah v. Streiff. Fortunately, these cases have already ruled against police officers violating people’s Constitutional rights against illegal search and seizure.

As a colleague of mine said, “The rest of the country may be SOL, but Utah v. Strieff should not survive here in WA State.”

Let’s keep our fingers crossed.

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.

Apology Letters & Free Speech

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In State v . K.H.-H., the WA Supreme Court held that a defendant’s First Amendment free speech rights are not violated by a requirement that the offender write an apology letter to the victim of the crime.

K.H.-H., a 17-year-old male, was charged with assault with sexual motivation after he forced himself on C.R., a female acquaintance who attended the same high school. The juvenile court found K.H.-H. guilty. At the disposition hearing, the Prosecutor requested the court order K.H.-H. to write a letter of apology to the victim. Defense Counsel objected, insisting that K.H.-H. maintained the right to control his speech. The Court followed the Prosecutor’s recommendations and ordered K.H.-H. to write an apology letter. The court also imposed three months of community supervision.

K.H.-H appealed. Eventually, his case ended up in the WA Supreme Court.

In short, the Court upheld the sentencing requirement that K.H.-H write the apology letter.

First, the Court acknowledged that because a forced apology involves making an offender say something he does not wish to say, it implicates the compelled speech doctrine. The compelled speech doctrine generally dictates that the State cannot force individuals to deliver messages that they do not wish to make.

Nevertheless, the Court also stated that First Amendment rights are not absolute, particularly in the context of prison and probation, where constitutional rights are lessened or not applicable. “Similarly, criminal convictions result in loss or lessening of constitutional rights.”

The Court also reasoned that a victim has an interest in receiving a letter of apology. This not only aims to rehabilitate the juvenile offender but also acknowledges the victim’s interest in receiving the apology:

“A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior. Additionally, an apology letter recognizes the victim’s interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts.

This further advances the rehabilitative goals of the statute. The outward manifestation of accepting and apologizing for the consequences of one’s actions is a rehabilitative step that attempts to improve K.H.-H.’s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H. ‘s rehabilitation and the crime here. One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights.”

Justice McCloud dissented. Among other things, his dissent says the following:

“Compelling a false apology for a crime the defendant denies committing is far from the least restrictive means of achieving rehabilitation. In fact, it is probably the most ineffective way to achieve that result.”

An interesting case, no doubt.

My opinion?

I strive for reductions and dismissals in all of my cases. Sometimes that means taking accountability for what happened. Consequently, that also means apologizing. An apology letter to the judge is a great place to start. They are a great way to demonstrate responsibility and remorse for your actions. While an apology letter to the judge/magistrate is often an excellent way to show your remorse after you have committed an offence, it’s success will largely depend on how serious the crime was. Among other things, judges consider your likelihood at re-offending.

A sincere apology letter may show you have learnt your lesson and may go some way to proving this. Writing a letter to the victim can be one way of repairing the harm caused. Remember, judges have a fair amount of discretion when sentencing. They can consider the fact that you have taken responsibility for your actions as well as paid for any loss or damage caused. Finally, many victims will be happy to receive a sign of your recognition of the harm that you have caused them, especially if your crime wasn’t intentional or didn’t cause a great deal of harm.

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.

Threatening Note = Robbery

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In  State v. Farnsworth, the WA Supreme Court decided a defendant’s handwritten note demanding money from a bank teller contained threats sufficient enough to support a conviction for robbery.

On October 15,2009, defendants Charles Farnsworth and James McFarland were suffering heroin withdrawals and had no money to purchase more. The pair made a plan to “rob” a bank. The plan was for McFarland to wait outside in the car while Farnsworth entered a bank wearing a wig and sunglasses as a disguise, and retrieve money. Farnsworth would present a note to the teller, which read, “No die packs, no tracking devices, put the money in the bag.”

They executed the plan. The bank teller handed Farnsworth about $300 in small bills, and McFarland left. Farnsworth and McFarland drove away, but they were pulled over and arrested a few blocks from the bank. Both were charged with Robbery in the First Degree pursuant to RCW 9A.56.200(1 )(b) (robbery committed in a financial institution).

Both defendants had long criminal histories. Farnsworth faced the possibility of a life sentence under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 if convicted of this robbery, as he was previously convicted of a 2004 Robbery and a 1984 Vehicular Homicide in California. The POAA requires a life sentence when a repeat offender commits a third felony that is classified as a “most serious offense” (often referred to as a “third strike”).

Farnsworth went to trial and was found guilty. The trial court sentenced him to life in prison without the possibility of release. Farnsworth appealed, arguing that the evidence was insufficient to support robbery because (1) there was no threat of force and (2) he agreed to aid only a theft, not a robbery. The case ended up the WA Supreme Court.

The court upheld Farnsworth’s conviction.  It reasoned that sufficient evidence supports an implied threat of force:

“Although the note did not convey an explicitly threatening message, we believe it was laden with inherent intimidation. When a person demands money at a bank, with no explanation or indication of lawful entitlement to money, it can imply a threat of force because without such a threat, the teller would have no incentive to comply. An ordinary bank teller could reasonably infer an implied threat of harm under these circumstances.”

Because of this implicit threat, reasoned the Court, banks have security guards and distinctive policies in place to prevent harm flowing from precisely these types of encounters.

The Court also reasoned that the defendants were well aware that banks generally instructed their employees to react to such notes as if they contained an explicit threat. “In fact, the pair relied on that knowledge and fear to commit this crime,” said  the Court.

Finally, the Court reasoned that no errors deprived Farnsworth of a fair trial. With that, the Court affirmed Farnsworth’s conviction for first degree robbery.

My opinion? It’s generally difficult to see how threatening notes create a basis to support a prosecution and conviction for Robbery, which can be a Class or a Class B violent felony “strike” offense. Still, a threatening note passed to a bank teller in a financial institution must be taken seriously. This is, in fact, how most bank robberies happen.

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.

Refusing Field Sobriety Test is Admissible as “Consciousness of Guilt.”

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In State v. Mecham, the WA Supreme Court decided that Prosecutors in DUI trials may admit evidence that a defendant is declining field sobriety tests as evidence of consciousness of guilt.

FACTS

In 2011, Officer Campbell made a traffic stop of defendant Mark Tracy Mecham. Although Mecham’s driving showed no signs of intoxication, Mecham smelled of intoxicants and had slurred speech. The officer asked Mecham to perform voluntary field sobriety tests (FSTs), which would have involved Officer Campbell’s observing Mecham’s eye movements and ability to walk a straight line and stand on one leg. Mecham refused.

At trial, Mecham moved to suppress his refusal to perform the FSTs. Typically, trial courts grant this defense motion. In Mecham’s case, however, the trial court denied his motion and ruled that even if FSTs were a search, probable cause supported the search. Mecham’s refusal was admitted to the jury as evidence to support the Prosecutor’s theory that Mecham exhibited “Consciousness of Guilt.” The jury found Mecham guilty of DUI.

Eventually, Mecham’s case was appealed to the WA Supreme Court. He argued that his right to be free from unreasonable searches was violated when the trial court admitted evidence of his refusal to undergo FSTs.

THE DECISION

Unfortunately for Mecham, the WA Supreme Court disagreed and upheld his DUI conviction. In a deeply divided decision, the Court held that while a FST is a seizure, it is not a search either under article I, section 7 of the Washington Constitution or under the Fourth Amendment to the United States Constitution. The State may, therefore, offer evidence of a defendant’s refusal to perform FSTs. Field sobriety tests may only be administered when the initial traffic stop was supported by reasonable suspicion and the officer has reasonable suspicion that the defendant was driving under the influence.

The lead majority opinion was authored by Justice Wiggins. Justice Fairhurst concurred in part and dissented in part. Justice Fairhurst would prohibit the administration of FSTs once the defendant is already under formal arrest for an offense other then DUI. Justice Johnson dissented on the grounds that the defendant had been told by the officer who administered the FSTs that they were voluntary. Finally, Justice Gordon McCloud dissented on the grounds that FSTs are searches.

My opinion?

I agree with Justice McCloud’s dissent. Here’s a portion:

“An FST can reveal information about a person’s body and medical history that are unquestionably private in nature. According to the National Highway Traffic Safety Administration (NHTSA), in addition to possible inebriation, FSTs can reveal a head injury, neurological disorder, brain tumors or damage, and some inner ear diseases. These conditions are not necessarily observable in the subject’s normal public behavior; they may well be revealed only by the special maneuvers the subject is directed to perform during the FST. Indeed, if an FST did not reveal information beyond what is readily observable by the general public, there would be no need to administer it in the first place. I therefore conclude that FSTs are searches under article I, section 7 of our state constitution.”

FSTs are a search. Period. Clearly, Officers who ask citizens to performs FSTs are seeking evidence of DUI. Because FSTs are a search, Mecham had a constitutional right to refuse to perform them unless (1) the officers had a warrant, or (2) an exception to the warrant requirement applied. Here, the Officer neither possessed or obtained a warrant for a blood test. Nor did the Officer even attempt to get a warrant.

Even more concerning, Prosecutors now have free reign to spin a citizen’s refusal of FSTs as “consciousness of guilt.” That’s unfair. Indeed, there’s a lot of debate in criminal law on whether FSTs accurately and/or scientifically indicate whether someone is DUI. These tests are, quite simply, balancing and memory tests administered under extremely uncomfortable and stressful conditions. These tests – which more of less reflect bad balance, lack of memory and preexisting health issues – simply do not accurately depict intoxication.

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.

Unlawful Arrest for Failure to Pay Court Fines.

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In State v. Sleater, the WA Court of Appeals Div. III held an arrest warrant may not issue for a defendant who fails to schedule an appearance in court to explain why she had failed to pay her court fines.

The Defendant Ms. Sleater had prior convictions for various Drug Offenses. As of April 2014, she was making a combined monthly payment of$75 toward three cases. She was also entered into Benton County’s “pay or appear” program. It required her to make her legal financial obligation (LFO) payments every month or appear to schedule a hearing to explain why she could not make the payments. The program agreement also stated that if the defendant did not make a payment and failed to schedule a hearing, “a warrant will be issued for the Defendant’s arrest.”

For months, Ms. Sleater’s mother paid the monthly fines. Her mother made a $150 on-line payment on April 17, 2014. Unfortunately, the computer did not apportion the sum among the three accounts, but applied all of the money to only one case number identified with the payment. AS a result, The other two counts were four and seven months behind.

On April 22, 2014 the clerk’s office obtained arrest warrants for Ms. Sleater since she had not made payments on those two cases and had not scheduled a hearing to explain the lack of payments.

On May 16, 2014 officers arrested Ms. Sleater on the two warrants. She possessed methamphetamine at the time of her arrest. Consequently, the prosecutor filed one count of possession of a controlled substance. Her attorney moved to suppress the evidence under CrR 3.6 on the claim that the warrants were wrongly issued. However, the trial court denied the motion and found Ms. Sleater guilty at trial.  She appealed.

The WA Court of Appeals held that the arrest warrants were invalidly issued in violation of the Fourth Amendment to the United States Constitution.

The Court reasoned that the Fourth Amendment protects against unreasonable seizures, and that seizure is reasonable if it serves a governmental interest which is adequate to justify imposing on the liberty of the individual.” However, it violates due process to punish defendants for failing to pay fines if the defendant cannot pay simply because they are impoverished.

“Nor can a state impose a fine and convert it to jail time solely because a defendant has no ability to pay the fine. The State must afford the defendant a hearing before jailing him for failing to pay his obligations. While the court can put the burden to prove inability to pay on the defendant, it still has a duty to inquire into a defendant’s ability to pay fines prior to jailing him.”

Here, the Court reasoned that the effect of the arrest warrants was to require Ms. Sleater to go to jail for failing to pay her LFOs without first conducting an inquiry into her ability to pay them:

“The facts of this case demonstrate the need for such an inquiry. Ms. Sleater’s mother did make a payment toward her daughter’s LFOs, but through some type of error the payment was not reflected in all three files. A hearing before the warrants issued would have allowed the court to resolve the problem without the necessity of an arrest.”

Here, reasoned the Court, a warrant should not have issued for defendant’s failure to pay without first determining the willfulness of that violation. Accordingly, the Court of Appeals reversed Ms Sleater’s conviction for possessing methamphetamine.

Good decision.

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

When Sexting Becomes Criminal

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In State v. E.G., the WA Court of Appeals Division III held that a juvenile’s texting a picture of his erect penis to an adult female is punishable as a violation of Dealing in Depictions of a Minor Engaged in Sexually Explicit Activity in the Second Degree under RCW 9.68A.050(2)(a).

Defendant E.G. was 17-year-old juvenile with Asperger syndrome. He began sending harassing phone calls to T.R., a former employee of E.G.’s mother. T.R. at the time was a 22-year-old mother of an infant daughter. E.G. found T.R.’s telephone number by checking his mother’s business records. Beginning in mid-2012, a male using a restricted phone number would call T.R. at night and make sexual sounds or ask sexual questions. On the afternoon of June 2, 2013, T.R. received two text messages: one with a picture of an erect penis, and the other with explicit language.

T.R. reported the phone calls and text messages to the police, who tracked the telephone to E.G., then age 17. He was questioned by the police and told them that it was his penis in the photograph.Shortly before his 18th birthday, E.G. was charged in the juvenile division of the Spokane County Superior Court with one count of second degree dealing in depictions and one count of making harassing telephone calls.

Unfortunately, E.G. had prior criminal behavior of a similar nature. At the time of his arrest, E.G. was currently serving a Special Sex Offender Dispositional Alternative (SSODA) as the result of an earlier juvenile adjudication for communicating with a minor for immoral purposes.

The defense moved to dismiss the charges under the argument that the statute could not be applied to a minor who was also the “victim” of the offense. The trial court denied the motion, concluded E.G. had committed the offense and required E.G. to register as a sex offender.

E.G. timely appealed. The Court of Appeals accepted an amicus brief jointly filed by the American Civil Liberties Union of Washington and the Juvenile Law Center. The only issue on appeal was whether the dealing in depictions statute properly could be applied to E.G.’s conduct.

Ultimately, the Court of Appeals upheld the juvenile court’s findings of guilt.

First, the Court of Appeals reasoned that E.G.’s conduct was not protected by the First Amendment because minors have no superior right to distribute sexually explicit materials involving minors than adults do.

Second, the Court rejected arguments that the criminal statute was vague because it does not provide notice that sending self-produced images of one’s own genitalia to others is included within the scope of the statute. The Court reasoned that while the statute’s reach may be broad, it is not vague.

Third, the Court rejected arguments that it was absurd for E.G. to be both victim and perpetrator. The Court’s response was perfunctory and direct:

“We disagree. First, nothing in the statute requires proof of any specific “victim” status as an element of the offense. Rather, child pornography per se victimizes children, which is the reason the legislature is seeking to eradicate it, whether or not the child willingly takes part. The legislature can rationally decide that it needs to protect children from themselves by eliminating all child pornography, including self-produced images that were not created for commercial reasons.”

Finally, the Court of Appeals rejected arguments that E.G.’s actions were an innocent sharing of sexual images between teenagers: “It appears, instead, to be the latest step in a campaign of anonymous harassment of T.R. for reasons best known to E.G., but even if it was an effort to entice or impress her, this was not an innocent activity.” With that, the Court of Appeals affirm the juvenile court’s adjudication and disposition of this case.

My opinion?

I understand it was a terrifying experience for the victim to undergo this terrible experience. Nevertheless, its difficult to justify where, under these facts,  a 17-year-old juvenile with Asperger syndrome should be found guilty of a heinous Class A sex offense felony and register as a sex offender for a number of years.

Although there are many possible symptoms of Asperger’s syndrome, the main symptom is significant trouble with social situations. Other symptoms include the following:

  • Inability to pick up on social cues;
  • Lack of inborn social skills, such as being able to read others’ body language, start or maintain a conversation, and take turns talking;
  • Lack of empathy;
  • Inability to recognize subtle differences in speech tone, pitch, and accent that alter the meaning of others’ speech;

. . . and the list goes on.

Again, my condolences to the victim. Still, when Asperger’s syndrome is coupled with adolescence and immaturity, it’s difficult to imagine a juvenile defendant truly understanding the repercussions of his actions under these facts.

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.

Criminal Defense Attorney Alexander Ransom Joins Skagit Bar Association

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I’m proud to announce my new membership into the Skagit County Bar Association.

The organization is a voluntary professional association of lawyers who live and practice in Skagit County, Washington. Among other things, the organization gives pro bono legal help to low-income residents in need of legal services via their Volunteer Lawyer Program. Members also enjoy access to networking opportunities and a profile in the Association’s online directory. Finally, young lawyers benefit from lower-cost membership and fun social events that are both educational and great networking opportunities.

Skagit County is a county in Washington with a population of 116,901 as of 2010. Its largest city is Mount Vernon. The county was formed in 1883 from Whatcom County and is named for the Skagit Indian tribe, which has been indigenous to the area prior to European-American settlement.

Being directly south of Whatcom County, I routinely assisted clients who reside in Skagit County and its various municipalities. I’m very pleased to finally and officially joining the Skagit County Bar Association, network with other attorneys and participate in the organization’s community service activities.

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.

Is Cash Bail Effective?

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Image result for cash bail

Three research studies released this month further confirm the ineffective, discriminatory, and unsafe influence of money bail in U.S. criminal justice systems.

In The Heavy Costs of High Bail: Evidence from Judge Randomization, a Columbia Law and Economics Working Paper by Arpit Gupta, Christopher Hansman, and Ethan Frenchman, describes how assigning money bail to people accused of crime in Philadelphia and Pittsburgh increases the likelihood of conviction by 12% and increases recidivism by 4%. Ultimately, the authors found that the use of money bail is not effective – it “does not seem to increase the probability that a defendant appears at trial,” and actually makes us all less safe.

In her University of Pennsylvania Law School Working Paper, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, Megan Stevenson reports that people arrested for crimes in Philadelphia and detained due to their inability to pay money bail face up to a 30% increase in convictions—driven by increased guilty pleas—and an additional 18 months of incarceration compared to those who are able to afford bail.

Finally, the Prison Policy Initiative (PPI) released an analysis of national data that gives context to the Columbia and University of Pennsylvania papers. In Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time, PPI found that “most of the people who are unable to meet bail fall into the poorest third of society.” Their median income – only $15,109 prior to incarceration – was less than half of the income of non-incarcerated people, and yet the median bail amount nationally is almost a full year’s income for the typical person unable to post a bail bond. Money bail, PPI concludes, results in the unnecessary and excessive detention of poor people, essentially jailing people for their poverty.

This research highlights what legislators, practitioners, and taxpayers are increasingly recognizing: money bail doesn’t work, is discriminatory, and makes communities less safe.

Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute released this statement about the research:

“With these recent research findings, there should no longer be any doubt, anywhere, that money bail unfairly punishes the poor while also making everyone less safe. Our 3DaysCount campaign calls for replacing the broken money bail system with commonsense and proven solutions to support people being successful on pretrial release.”

Congressman Ted Lieu, sponsor of the No Money Bail Act of 2016, said the following:

“Our nation must stop criminalizing poverty, and these new studies provide crucial data proving that being poor increases your chance of jail time and conviction.  This kind of research is crucial to supporting the No Money Bail Act of 2016, which would eliminate the use of money bail at the federal level and incentivize states to end the use of bail through the withholding of federal grants. We can no longer stand by in good conscience while Americans, presumed innocent, are deprived of their liberty because they can’t afford bail. Justice in America should not be bought and paid for.”

Additionally, judicial leaders across the nation joined together to call attention to these findings.Chief Justice W. Scott Bales, Arizona Supreme Court; Chief Justice Patricia Breckenridge, Missouri Supreme Court; Chief Justice E. James Burke, Wyoming Supreme Court; Chief Justice Tani Cantil-Sakauye California Supreme Court;  Justice Charles W. Daniels, New Mexico Supreme Court; Chief Justice Matthew B. Durrant,Utah Supreme Court; Chief Judge Nan G. Nash, Second Judicial District, New Mexico;Chief Justice Mark E. Recktenwald, Supreme Court of Hawaii; and Chief Justice Robert J. Torres, Jr., Supreme Court of Guam issued the following statement:

“People should not be held in jail pending the disposition of charges merely because they are poor and cannot afford bail.  Recent research suggests that we can identify better ways to make release decisions that will treat people fairly, protect the public, and ensure court appearances.”

My opinion? This national effort is gratifying. Few people understand how incarceration negatively affects job opportunities, families and ability mental/emotional wellness. In my Legal Guide titled, “Making Bail,” I discuss how one of the greatest services a competent defense attorney can do for their clients is assist in getting them released from jail as soon as possible on either a reduced bail amount which is lower than the Prosecutor’s recommendations or that the defendant be released without bail altogether.

One opportunity to lower/rescind bail is at the defendant’s first appearance or arraignment. Another opportunity exists through a Bail Review Hearing.

Under CrR 3.2, judges must review the nature of the pending criminal charges, a defendant’s prior criminal history, their history of failing to appear at past court hearings, and their ties to the community (property ownership, employment, family, school, etc). Factoring all of this, the judge decides whether to lower bail or release the defendant altogether.

Also, CrR 3.2 allows release of defendants to the care of willing and responsible members of the community, including family members. Also, judges may be persuaded to impose other pretrial release conditions such as mandatory curfews, staying away from businesses serving alcohol. Almost everything is negotiable.

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.