Category Archives: Assault

Prosecuting Poverty?

Seattle considers excusing misdemeanor crimes if they can be linked to poverty

Should we be prosecuting poverty? Great article by of KUOW reports that Seattle lawmakers are considering a law that would excuse suspects from most misdemeanor crimes if they can be linked to poverty or mental illness.

If approved, it would make the Emerald City the nation’s first to have such a measure on the books.

“Good prosecutors don’t take any satisfaction in prosecuting that type of offense.” ~Seattle City Attorney Pete Holmes

The Seattle City Council said the proposal, crafted with input from local public defenders, would excuse suspects from minor crimes like theft, trespassing, or assault — but not in cases of domestic violence or DUI, KUOW-TV reported.

“In a situation where you took that sandwich because you were hungry and you were trying to meet your basic need of satisfying your hunger, we as a community will know that we should not punish that,” Anita Khandelwal, King County Director of Public Defense, told KUOW. “That conduct is excused.”

Anita Khandelwal said the “poverty defense” isn’t meant to ignore the needs of businesses and others harmed by these offenses. She said the current system doesn’t provide them redress either, and it does more harm to offenders.

“It’s meeting nobody’s needs. This is not that we don’t care about the business community or about people who have experienced harm. It is that we know that this process – this processing of human beings through the system – is harmful to our clients and again very racially disproportionate, and also not getting business owners what they need either.” ~ Anita Khandelwal, King County Director of Public Defense,

The push comes as crime has spiked in Seattle this year, including during the Capitol Hill Occupied Zone protests in the city, Fox affiliate WSFX-TV reported.

At the same time, the city’s homeless population has risen by 5 percent since last year. However, not everyone in the Northwest city is on board with the proposed law change.

“It sends this powerful signal that as a city government, we don’t really care about this type of criminal behavior in our city,” former city councilman Tim Burgess told KUOW.

Burgess called the proposal “a defense lawyer’s dream.” Briefing documents say the Council would need to define whether the new affirmative defense applies only to someone meeting immediate basic needs, like stealing a sandwich in order to eat, or to items that are stolen for resale “so the defendant can pay rent.” Herbold says her committee will continue its work on the proposal in January.

Please contact my office if you, a friend or family member are charged with a crime like Theft, Possession of  Stolen Motor Vehicle, etc., and the Poverty Defense might apply. Hiring an experienced criminal defense attorney is the first and best step toward justice.

FBI Releases 2019 Hate Crime Statistics

Pie chart depicting breakdown of motivations of bias-motivated crimes in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.

Assault or Swim Lesson?

Backlash over 'self-rescue' swimming classes for toddlers | News | The Times

In State v. Loos, the WA Court of Appeals held that although the defendant repeatedly submerged a toddler in a river during an impromptu swimming lesson, there was a lack of evidence proving the defendant’s actions were Assault.

FACTUAL BACKGROUND

Defendant Ms. Loos was babysitting J.T.S., a nonverbal, speech-delayed two-and-a-half-year-old toddler whom she had cared for throughout his infancy. Loos and a friend, Ms. Tetzlaff, decided to take a group of seven children to swim in the Jordan River that day.

While swimming in the river, Tetzlaff became concerned about Loos’s conduct. Tetzlaff testified that Loos picked up J.T.S. and said “it’s time to swim.” For the next minute – which was caught on camera – Loos engaged an impromptu swim lesson and tried teaching J.T.S. a swim technique called “infant self-rescue” by teaching him to float on his back.

In the 51-second video, Loos can be seen holding J.T.S. on his back in the water, and is heard telling him “when we scream, we go under.” After a moment, J.T.S. was submerged in the water for a few seconds and Loos pulled him back up out of the water. Loos repositioned J.T.S. on his back, at which point he began to struggle and tried to pull away.

Loos told J.T.S. again not to scream and he was again submerged. This time, Loos had one hand under J.T.S. and one hand on his chest. At trial, Tetzlaff testified that Loos was “holding him under the water.” T.L. similarly testified he saw Loos push J.T.S. under water, and T.L. could see J.T.S. flailing his arms while submerged. When Loos lifted him out of the water, he came up coughing and screaming. Eventually, Loos ended the swim lesson.

On December 1, 2017, approximately two and a half years later, the State charged Loos with one count of assault of a child in the third degree. During trial, Loos moved to dismiss the charge for insufficient evidence. The trial court denied this motion, although it acknowledged its decision was a “close call.”

The jury found Loos guilty. She appealed on the grounds of insufficient evidence.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals began by saying due process of law requires that the State prove every element of a charged crime beyond a reasonable doubt in order to obtain a criminal conviction.

Furthermore, the court cited State v. Green in saying that in order to evaluate whether sufficient evidence supports a conviction, the court views the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt.

“Dismissal with prejudice is required when there is insufficient evidence at the close of the prosecution’s case in-chief to sustain a charged offense,” said the Court of Appeals.

Next, the court gave the statutory definition of “bodily harm” as “physical pain or injury, illness, or an impairment of physical condition,” And that this pain or impairment must be accompanied by “substantial pain.”

Finally, the Court of Appeals reasoned whether there was sufficient evidence that T.J. suffered substantial pain from the swimming incident. “J.T.S.’s coughing when pulled out of the water caused him some physical pain,” said the Court. “But neither the testimony nor the 51-second video of the incident supports any contention that J.T.S. was unable to quickly and easily eliminate the water from his throat or that he remained in any pain once he did so.”

“The evidence was undisputed that J.T.S. did not require CPR, did not vomit, did not lose consciousness, did not appear to have any swelling of his belly, did not sustain any lung injury, and needed no medical treatment. There is no evidence J.T.S. was inconsolable as a result of any ongoing pain or that any momentary pain he may have experienced lasted for any period of time after he coughed and Loos removed him from the water.” ~WA Court of Appeals

The Court of Appeals concluded by saying that no reasonable jury would find that J.T.S. suffered substantial pain that extended for a period sufficient to cause considerable suffering. With that, the Court of Appeals reversed Loos’s conviction.

My opinion? Good decision. The trial court erred when it denied Ms. Loos’ Motion to Dismiss pursuant to State v. Green. Better known as a Green Motion, this tactical trial maneuver allows defendants to request the judge dismiss criminal charges after the Prosecution has presented its evidence and rested its case.

Please contact my office if you, a friend or family member face charges and the Prosecution has evidentiary proof problems. Hiring an effective and experienced attorney is the first and best step towards justice.

Improper Opinion Testimony

Chicago cops reluctantly testify against 1 of their own

In State v. Hawkins, the WA Court of Appeals held that a police officer gave improper opinion testimony regarding the defendant’s guilt and credibility.

FACTUAL BACKGROUND

The Defendant Mr. Hawkins was arrested and charged with assault in the third degree for briefly strangling Mr. Ali, a King County Metro bus driver, over a fare dispute. The incident was witnessed by a passenger who did not speak English and a passenger who saw an argument occur, but did not witness actual physical touching.

The State’s only other witnesses were Deputy Baker and Deputy Garrison, the King County Sheriff’s detective that reviewed Baker’s initial investigation and referred Hawkins’s case for prosecution. Over defense counsel’s repeated objections, the prosecutor tried to elicit opinion testimony from both deputies concerning whether they believed whether the bus driver Ali was a credible witness.

Several of the defense’s objections were sustained, but the court eventually allowed Officer Baker to answer. Although Deputy Baker’s answer was couched in probable cause to arrest, Baker’s answer implied he believed Ali’s version of events over Hawkins.

Deputy Garrison’s answers also gave an opinion about credibility. Garrison stated he would only refer a case for prosecution if there was “some credible ability to prosecute.”

The jury convicted Hawkins as charged.

On appeal, Hawkins contends that the prosecutor committed prejudicial misconduct by eliciting opinion testimony from police witnesses concerning witness credibility.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law. A prosecutor also functions as the representative of the people in a quasi-judicial capacity in a search for justice.

The Court said the prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. Thus, a prosecutor must function within boundaries while zealously seeking justice.

Also, the Court of Appeals emphasized there are some areas of opinion testimony that are inappropriate in criminal trials.

“This is particularly true when the opinion testimony is sought from law enforcement,” said the Court of Appeals. “Officer testimony has an aura of special reliability and trustworthiness.”

The Court of Appeals said the State’s case was weak.

“There is no question that the State’s case against Hawkins was weak. There was no physical evidence, there was no surveillance footage, and Ali had no visible injuries and declined medical attention. The State offered no firsthand witnesses other than Ali.” ~WA Court of Appeals

As a result, the Court reasoned that the State’s case inappropriately focused on the police officers’ opinion of the bus driver Ali’s credibility:

“Because the State’s case was weak, eliciting the officers’ opinions that they believed they had a credible witness in Ali had a clear prejudicial effect on Hawkins’s right to a fair trial.” ~WA Court of Appeals

The Court ruled the Defendant’s case was prejudiced and overturned his conviction.

My opinion? Good decision. A prosecutor functions as the representative of the people in the search for justice. The prosecutor also owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated.

It is inappropriate in a criminal trial for the prosecutor to seek opinion testimony as to the guilt of the defendant, the intent of the accused, or the credibility of witnesses. This is particularly true where the opinion sought is that of a law enforcement officer.

Please review my Legal Guide on Prosecutorial Misconduct for more information on this subject. And please contact my office if you, a friend or family member face criminal charges. Hiring an experienced and competent defense attorney is the first and best step toward justice.

Shackling Defendants In Court – Without Reason – Is Unconstitutional.

Court ruling about shackles puts stress on judicial system | Local ...

In State v. Jackson, the WA Supreme Court held that shackling in court without analyzing whether the shackles are necessary violates the defendant’s constitutional rights.

BACKGROUND FACTS

In 2017, Mr. Jackson,  was charged with assault in the second degree, domestic violence, for strangling his fiancée. At every court appearance, Jackson was forced to wear some form of restraints pursuant to jail policy. The trial court did not engage in any individualized determination of whether restraints were necessary for courtroom safety but, instead, filed a consolidated opinion adopting the jail policy for all superior court appearances for all incarcerated defendants. After a jury found Jackson guilty, he appealed, arguing that his constitutional right to due process was violated when he was forced to wear restraints without an individualized inquiry into their necessity.

The Court of Appeals held that the shackling of Jackson without an individualized inquiry into whether shackles were necessary violated his constitutional rights. However, it also held that this violation was harmless; thus leaving Jackson with a constitutional violation without a remedy.

Both the Prosecutor and Mr. Jackson appealed to the WA Supreme Court. Jackson argued that the Court of Appeals did not apply the constitutional “harmless error test” correctly. The State, on the other hand, cross-petitioned for review of the constitutionality of the use of pretrial restraints.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reviewed the history of defendants wearing pretrial restraints in court:

“The problems in the history of shackling in early America are not limited to the courts and incarcerated individuals . . . The use of shackling as a means of control and oppression, primarily against people of color, has run rampant in the history of this country . . . Shackles and restraints remain an image of the transatlantic slave trade and the systematic abuse and ownership of African persons that has endured long beyond the end of slavery. Shackles and restraints also represent the forced removal of Native people from their homelands through the Trail of Tears and the slave labor of Native people. We recognize that although these atrocities occurred over a century ago, the systemic control of persons of color remains in society, particularly within the criminal justice system.” ~WA Supreme Court

Next, the Court reasoned that under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution, it is well settled that a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances.

That said, the WA Supreme Court also mentioned that the right to be free from restraint is not absolute, and trial court judges are vested with the discretion to give measures that implicate courtroom security, including whether to restrain a defendant in some capacity in order to prevent injury.

Next, the court  identified several factors under State v. Hartzog which help a trial court determine if a defendant needs to be shackled:

“The seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.” ~WA Supreme Court quoting State v. Hartzog

The Court reasoned that a trial court must engage in an individualized inquiry into the use of restraints prior to every court appearance. Furthermore, the State does not meet this burden by simply establishing that no jurors observed the restraints during trial.

“When the State does not meet its burden to prove that the use of restraints at trial was harmless beyond a reasonable doubt, the defendant is entitled to a new trial and the defendant may only be restrained or shackled during any stage of the proceedings after the court makes an individualized inquiry into whether shackles or restraints are necessary,” said the Court.

With that, the WA Supreme Court reversed the Court of Appeals on harmlessness and remanded for a new trial with instructions that at all stages of court proceedings, the court shall make an individualized inquiry into whether shackles or restraints are necessary.

My opinion? Good decision. The manner in which the justice system treats people in these public settings matters for the public’s perception, including that of the defendant. Practices like routine shackling are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise.

Please contact my office if you, a friend or family member face criminal charges. Hiring an experienced and effective criminal defense attorney is the first and best step towards justice.

Consecutive v. Concurrent Sentencing

Consecutive vs. Concurrent Sentencing in Kentucky - Baldani Law Group

Clients often ask, “What’s the difference between consecutive and concurrent sentences?”

Quite a lot, actually!

The question applies to Clients facing criminal charges from numerous jurisdictions. For these clients, sometimes the best approach is to seek a global resolution. This can happen if the prosecutors of the different jurisdictions are willing to coordinate their efforts toward a plea bargain involving reductions and dismissals of some criminal charges in exchange for guilty pleas to other charges.

Naturally, a big question in these negotiations is whether the defendant shall serve their jail time under a consecutive sentence or a concurrent sentences. Here’s some definitions:

Concurrent sentences: When sentences run concurrently, defendants serve all the sentences at the same time. This outcome is favorable to the defendant.

Consecutive sentences: When sentences run consecutively, defendants have to finish serving the sentence for one offense before they start serving the sentence for any other offense. This sentence outcome is not favorable to the defendant.

To illustrate the point, in State v. Brown the WA Court of Appeals recently held that firearm enhancements must be served consecutively in cases in which the defendant was 18-years or older when s/he committed the crimes.

BACKGROUND FACTS

A jury convicted Mr. Brown of four counts of first degree robbery, one count of attempted first degree robbery, two counts of second degree assault, and one count of attempting to elude a pursuing police vehicle. Five of the convictions included firearm enhancements, which are increased sentencing penalties.

At sentencing, the State recommended a sentence of 381 months. The State recommended five firearm enhancements ran consecutively to each other and to Mr. Brown’s base sentence of 129 months. The trial court imposed the State’s recommended sentence. Brown appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals raised and dismissed Mr. Brown’s arguments on appeal. It reasoned that under the Sentencing Reform Act – and specifically, RCW 9.94A.533(3)(e) – all firearm enhancements require prison time and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements.

“Brown’s sole claim is that he is entitled to resentencing because the sentencing court erroneously believed it lacked the discretion to depart from the required term of confinement for a firearm enhancement. We disagree.” ~WA Court of Appeals

To support its reasoning, the WA Court of Appeals relied on State v. Brown (no relation) a WA Supreme Court case which held that Washington law deprives sentencing courts of the discretion to impose an exceptional sentence with regard to firearm enhancements.

“In any event, a decision by the Washington Supreme Court is binding on all lower courts of the state,” reasoned the WA court of Appeals. “This court does not have the
authority to overrule Brown.”

With that, the Court of Appeals upheld Mr. Brown’s lengthy prison sentence.

My opinion? Again, if a defendant is convicted of a number of crimes that carry lengthy prison terms, the difference between consecutive and concurrent sentences can be tremendous. The same factors that judges tend to consider when deciding on the severity of a sentence (for example, a defendant’s past record) also affect their decisions on whether to give concurrent or consecutive sentences.

As you can see, however, some criminal statutes require that the sentence for the crime in question be served consecutively to any other crime committed in the same incident.

Please contact my office if you, a friend or family member face criminal charges involving the possibility of concurrent or consecutive sentencing. It’s crucial to hire an experienced criminal defense attorney who understands the law.

Victim’s Motive To Testify

Ulterior Motive

In State v. Bedada, the WA Court of Appeals held that in a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial judge mistakenly suppressed evidence of the victim’s motive to testify.

BACKGROUND FACTS

After a series of alleged incidents of domestic violence, Mr. Bedada was charged with three counts of assault in the first degree and one count each of felony harassment, witness intimidation, and witness tampering.

All of these charges were primarily supported by the testimony of Mrs. Haile, who was the defendant’s wife.

At trial, the judge excluded evidence of Mr. Bedada’s non-citizen immigration status; and more specifically, that he would be deported if convicted of the crimes. As a result, Mr. Bedada was prevented from cross-examining Haile and revealing a motive for her to fabricate her testimony.

Bedada was convicted on all charges except two counts of assault in the first degree. He appeals on the argument that the judge’s decision to suppress his citizenship status was erroneous and without merit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals explained that the Sixth Amendment to the United States Constitution and article I, section 22 of Washington’s constitution guarantee a defendant’s rights to confront the witnesses testifying against him.

Furthermore, the Court of Appeals said that under Evidence Rule (ER) 401, evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Also, under ER 403,  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Finally, the court explained that under ER 413(a), evidence of immigration status may only be admitted when the party seeking to admit the evidence follows the procedure set forth under the rule. ER 413(a) states,

“In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607.” (emphasis supplied).

The court analyzed the aforementioned rules and ultimately found that plainly, evidence of a motive to fabricate on the part of Mrs. Haile— whose testimony was the principal evidence supporting every charge against Bedada — could affect a fact finder’s analysis as to whether the facts alleged by Haile were true.

“No party disputed the reliability of evidence of Bedada’s noncitizenship,” said the court. “To the extent that the trial court engaged in a balancing of the probative value and prejudicial effect of the proffered evidence, it unfortunately omitted or misapplied several critical factors necessary to a proper analysis.”

Notably, the Court of Appeals also took issue that neither the Prosecutor nor the trial judge identified any prejudicial effect — specific to this case — that might result from the introduction of evidence of Bedada’s immigration status:

“The State’s assertion did not identify, with any particularity, the prejudice that the State would encounter beyond a generalized concern of immigration as a sensitive political issue. The lack of a specific, as opposed to merely a general, prejudicial effect is significant.”

Finally, the Court found it important that Mrs. Haile was the primary witness against Bedada in every charge against him.

“She was the State’s most important witness,” said the Court. “Demonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.

For all of these reasons, the Court of Appeals ruled that the trial court’s decision to exclude evidence of Mr. Bedada’s immigration status constituted an abuse of discretion. Consequently, the Court reversed Mr. Bedada’s convictions.

My opinion? Good decision. Although I sympathize with the victim’s plight, it is wrong for trial courts to suppress evidence of a victim’s ulterior motives for testifying. it is powerful, relevant and probative evidence establishing motive that the victim knew that the defendant would be deported if she testified against him. Defense counsel did a great job establishing a record for appeal.

Please contact my office if you, a friend or family member are non-citizens charged with crimes, especially deportable offenses like Domestic Violence. Hiring an effective and experienced criminal defense attorney is the best step toward justice.

COVID-19 Brings DV Crimes?

Officials: Be aware of domestic violence risks as you shelter in ...

Interesting article by Jocelyn Noveck of the Associated Press describes a possible uptick in domestic violence related crimes resulting from couples and families being isolated together by the threat of COVID-19.

According to Ms. Noveck, concern is high in cities everywhere, and meaningful numbers are hard to come by.

“As the world’s families hunker down, there’s another danger, less obvious but just as insidious, that worries advocates and officials: a potential spike in domestic violence as victims spend day and night trapped at home with their abusers, with tensions rising, nowhere to escape, limited or no access to friends or relatives — and no idea when it will end.”

“In some cases, officials worry about a spike in calls, and in others, about a drop in calls, which might indicate that victims cannot find a safe way to reach out for help,” says Noveck.

In Los Angeles, officials have been bracing for a spike in abuse. “When cabin fever sets in, give it a week or two, people get tired of seeing each other and then you might have domestic violence,” said Alex Villanueva, the sheriff of Los Angeles County.

“We started getting on this as soon as soon as we started seeing the handwriting on the wall,” said Patti Giggans, executive director of the nonprofit Peace Over Violence in Los Angeles.

“One of the key challenges of this health pandemic is that home isn’t a safe place for everyone,” said Amanda Pyron, executive director of The Network: Advocating Against Domestic Violence, based in Chicago. “Victims and the abusers have to stay at the scene of the crime.” The group helps run a statewide 24-hour hotline, which has seen a spike in the average number of daily calls, from about 60 to 90, since confinement orders went into effect last weekend.

And at the group Women Safe, there’s been an uptick in calls. One change, said Frederique Martz, who runs the group, is that domestic violence victims are no longer being referred to hospitals which saturated with coronavirus cases.

Please contact my office if you, a friend or family member face criminal charges involving Domestic Violence during these turbulent times. Hiring an experienced criminal defense attorney is the first – and best – step toward achieving justice.

No Interpreter is Court Mismanagement

Image result for court interpreter

In State v. Jieta, the WA Court of Appeals held that a trial court judge may dismiss a criminal prosecution due to the court’s failure to arrange for an interpreter for all scheduled court hearings.

BACKGROUND FACTS

On May 19, 2015, Mr. Jieta was first arraigned on charges of fourth degree assault and third degree malicious mischief in Snohomish County District Court. The court continued the arraignment after ordering that Jieta be provided a Marshallese interpreter. Over the next 15 months, the court held 14 more pretrial hearings, and the interpreter repeatedly failed to appear telephonically or personally.

On August 26, 2016, Jieta moved under CrRLJ 8.3(b) to dismiss all charges. On September 12, — another hearing where the interpreter failed to appear — the court dismissed all charges with prejudice and found the interpreter’s absences “seriously interfered with Mr. Jieta’s right to representation by counsel.” In short, out of 14 pretrial hearings conducted after the court directed the appointment of a interpreter, the interpreter failed to appear 10 times, appeared by phone – ineffectively – two times, and appeared in person two times. The superior court affirmed the dismissal on the State’s appeal.

The State sought discretionary review in this court, which was granted on the narrow question whether CrRLJ 8.3(b) can apply when court administration mismanages a case.

COURT’S ANALYSIS & CONCLUSIONS

Furthermore, the Court of Appeals explained that CrRLJ 8.3(b) gives courts discretion to dismiss “any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” To satisfy the rule, the alleged misconduct “need not be of an evil or dishonest nature; simple mismanagement is sufficient.”

The Court also reasoned that the judiciary has a statutory duty of appointing an interpreter to assist the defendant throughout the proceedings:

“Reliable interpreter services are necessary to secure a non-English speaking defendant’s fair trial rights. Thus, to assist a defendant throughout the proceedings, the interpreter must actually deliver translation services throughout the proceedings.”

The purpose of CrR 8.3(b) is to ensure fairness to defendants by protecting their right to a fair trial. Thus, when mismanagement by court personnel prevents a defendant from receiving reliable interpreter services and effective assistance of counsel for more than one year, the defendant has a viable claim of “governmental misconduct” consistent with the text and purpose of CrRLJ 8.3(b).

Here, the Court of Appeals reasoned that “governmental misconduct” can extend to mismanagement by court administration.

“We need not decide the exact types of court mismanagement that could warrant relief or when dismissal is an appropriate remedy for such mismanagement,” said the Court. “On the record before us, the State does not establish that the trial court erred in its conclusion that CrRLJ 8.3(b) may extend to a court’s administrative mismanagement of its statutory obligation to provide translator services.”

With that, the Court of Appeals affirmed the dismissal of all charges.

My opinion? Good decision.

Court interpreters are important in legal proceedings, especially when criminal charges are involved. Interpreters ensure that defendants fully understand the charges and the proceedings. Indeed, the constitutional right to simply understand the charges and their maximum consequences is captured under the 6th Amendment.

Please contact my office if you, a friend or family member are charged with a crime and they need an interpreter to move forward in their defense. Hiring a competent, experienced attorney is the first and best step toward achieving justice.

Imprisoned At 7-11

Why going to 7-Eleven has become a political act - Los Angeles Times

In  State v. Dillon, the WA Court of Appeals held that in Unlawful Imprisonment charges, the State must prove that the defendant knowingly restrained another person, not that the defendant knowingly acted without legal authority.

BACKGROUND FACTS

On December 21 2017, the soon-to-be victim Mr. Favors entered a 7-Eleven after he got off his bus. Favors encountered the soon-to-be defendant Mr. Dillon standing near the entrance to 7-Eleven. Favors noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors thought that Dillon was panhandling and told him he did not have change. Favors continued into the 7-Eleven.

Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished making his purchase and started walking towards the exit. Dillon was standing three feet in front of the exit. Dillon told Favors in a slurred voice to “get your ass back over there” and threatened to cut and shoot him. Favors feared that the situation would escalate and went to the back of the store. Favors tried to leave a second time and Dillon said “I told you one time; get your ass back over there.” Favors, who is African-American, recalled hearing a racial slur. Favors discreetly called 911.

Police arrived and arrested Dillon. At one point he  “reared his head back” and hit a police officer on his forehead and the bridge of his nose. The officer recalled that Dillon was
intoxicated, his balance was poor, and was making incoherent statements.

The State initially charged Dillon with Third Degree Assault of the police officer and Harassment of Favors, but amended the information to include Unlawful Imprisonment of Favors.

The defense requested a jury instruction on Voluntary Intoxication and the State did not object. The jury acquitted Dillon of felony harassment, but convicted him of third degree assault and unlawful imprisonment.

Dillon appealed on the issue of whether State must prove beyond a reasonable doubt that Dillon knowingly acted without legal authority.

COURT’S ANALYSIS & CONCLUSIONS

The State presented sufficient evidence that a reasonable juror could find beyond a reasonable doubt that Dillon knew he was acting without legal authority when he committed the crime of Harassment.

“The threats that Dillon made had no lawful purpose. Depending on the level of intoxication, a person under the influence can still form the requisite intent to know that their actions are unlawful.”

Dillon made threats to “cut” and “shoot” Favors, both of which demonstrate that Dillon knew he was acting without legal authority. Dillon “jumped” at Favors to prevent him from exiting the 7-Eleven, further supporting a finding that Dillon knew his actions were unlawfully restraining Favors.

Regarding the Unlawful Imprisonment conviction, the WA Court of Appeals ruled that Dillon did not say anything that indicated he thought he had legal authority to restrain Favors. Also, the Court denied the argument denied the defense of Escape and held that that Mr. Favors could not have safely departed 7-11 due to Mr. Dillon’s actions:

“Viewed in the light most favorable to the State, Favor’s testimony is sufficient to find, beyond a reasonable doubt, that Dillon restrained Favors’s movement, in a manner that substantially interfered with his liberty through intimidation, threats of violence, and by blocking the 7-Eleven exit.”

With that, the Court of Appeals upheld Dillon’s convictions.

Please contact my office if you, a friend or family member face criminal charges like Assault, Harassment or Unlawful Imprisonment. It’s imperative to hire an experienced and effective criminal defense attorney who knows the law.