Category Archives: Bellingham Defense Attorney

Can Community Court Work in Whatcom County?

Community Court - St. Vincent de Paul

Great article by journalist Julia Lerner posed the question of whether a Community Court can become a viable service in Whatcom County.

THE NEED EXISTS & THE TIME IS RIGHT.

Ms. Lerner’s article emphasizes that Whatcom County’s criminal justice system is in turmoil: “Between the COVID-19 Pandemic, an aging jail, understaffed police departments, rising crime rates and shifting state legislation, the system is struggling to support the needs of the community,” writes Lerner.

And the time is right. Whatcom County’s upcoming judicial elections bring candidates offering their various positions on the sustainability of a local Community Court.

WHAT IS COMMUNITY COURT?

A community court is an alternative problem-solving court. It seeks to identify and address the underlying challenges of court participants that may contribute to further criminal activity. Its goal is to build stronger and safer neighborhoods and reduce recidivism.

The community court approach is designed to connect people charged with misdemeanors, including trespassing charges often levied against homeless individuals, with resources to help them access food, shelter and literacy programs. It calls for less jail time, more community service and a significant increase in local resources for those seeking mental health and addiction treatment and affordable housing.

Community courts provide services and accountability for those who are eligible and choose to participate. An assessment is conducted for all community court participants to identify their challenges and strengths. The assessment provides information to help determine what follow-up steps an individual community court participant will be required to take. Among other actions, participants often are required to perform community service.

Community court increases collaboration between the criminal justice system and other systems. They may help address mental health, substance use, human services, housing, employment and education.

My opinion? I’ve had many clients get their criminal charges dismissed via Community Court when that option is available. Community Courts follow a non-punitive, therapeautic model of criminal justice.  And it’s a great option for defendants who are committed to do the work. Community Courts reduce recidivism, increase safety and they build a stronger community.

That said, they require time, money and political will to be effective. A community resource center is an integral component of a successful community court. The resource center should includes on-site community partners that provide a wide array of services. People need access to healthcare/insurance, education, job training, behavioral health, substance use disorder help and more. By coming together in one place, many different community service agencies are better able to collaborate. Resource centers should be made available to all members of the public in addition to the community court participants.

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.

Crime Lab Delays Get Criminal Conviction Reversed & Case Dismissed.

What Does It Mean to Have the Right to a Speedy Trial? - Law Office of Michael L. Fell

In State v. Denton, the WA Court of Appeals reversed the defendant’s criminal convictions and dismissed his case because the trial court wrongully granted continuances solely based on routine crime lab delays processing DNA results.

FACTUAL BACKGROUND

The victim Mrs. Denton divorced the defendant, Bradley Denton, in 2012. The couple later reconciled but Mr. Denton resumed using drugs. Mrs. Denton ended the relationship for good after about a year.

When Mr. Denton persisted in contacting her, Mrs. Denton obtained an order for protection against him. That fall, Mrs. Denton, who had moved to Tumwater, returned to Yakima for a family gathering. Mr. Denton was aware she was in town. On the morning after the family gathering, Mr. Denton arrived uninvited at the home where Mrs. Denton and other family members were staying.

A sexual assault allegedly occurred. Mrs. Denton reported the assault to the Tumwater Police Department. An officer took a recorded statement, arranged for her to undergo a sexual assault examination. Police picked up the clothing had been wearing when assaulted. They referred the matter to the Yakima Police Department.

About a week later, Mr. Denton, who had been arrested for unrelated reasons and was incarcerated in the Yakima County Jail, placed a phone call to Felicia. Mrs. Denton did not accept the first call. However, after speaking with police, she accepted three calls from Mr. Denton.

On October 26, Mr. Denton was charged with assault in violation of a protection order, second degree rape, and two counts of misdemeanor violation of a protection order. All were charged as domestic violence offenses.

Mr. Denton was held in jail for 15 months during the pendency of his case. Over his objections, the trial court granted two continuances. The continuances extended Denton’s trial date four and a half months beyond period provided by CrR 3.3. The judge granted the continuances because the Prosecutor said that a nine-month turnaround by the crime lab was to be expected.

The jury found Mr. Denton guilty of all charges. He appealed his conviction on arguments that the 15-month delay between his arraignment and trial violated his speedy-trial rights under CrR 3.3.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals held that the trial court abused its discretion by granting continuances based on evidence of routine administrative delay by the WA State Patrol Crime Lab.

The Court reasoned that CrR 3.3(b)(1) requires a defendant who is detained in jail to be brought to trial within 60 days of arraignment. Mr. Denton was detained in jail, so the 60-day limit applies, reasoned the Court.

“The purpose underlying CrR 3.3 is to protect a defendant’s constitutional right to
a speedy trial,“ said the Court. “Past experience has shown that unless a strict rule is
applied, the right to a speedy trial as well as the integrity of the judicial process, cannot
be effectively preserved.”

Furthermore, the Court reasoned that the fact that DNA evidence may prove exculpatory is not a basis for continuing the time for trial over a defendant’s objection. It emphasized that the State’s requests for continuances must be supported by a better record.

Finally, the Court reasoned that dismissal is required:

“Presented with a record in which the sole basis for the two continuances was routine crime lab delay, we are left with no choice but to reverse Mr. Denton’s convictions and direct the superior court to dismiss the charges with prejudice. We deplore this outcome given the violent nature of Mr. Denton’s crimes, but it is the strict remedy that drafters of the rule perceived as needed to ensure that criminal cases will be promptly prepared for trial and heard.” ~WA Court of Appeals.

With that, the Court of Appeals reversed Mr. Denton’s conviction and dismissed the case with prejudice. The case emphasized that if a convicted defendant can establish a violation of the constitutional right to a speedy trial, the court must set aside the conviction, vacate the sentence, and dismiss the charging document.

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.

The Limits of Expert Witness Testimony

Expert Witness - Dr. Elisabeth "Eli" Sheff

In State v. Caril, the WA Court of Appeals held that a lower trial court did not violate the defendant’s Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

BACKGROUND FACTS

Mr. Caril was convicted of second degree murder. He asserts he was in a state of compromised mental health when he stabbed and killed a person.

During the night of June 22-23, 2017, Mr. Ross, Ms. Nguyen, and Mr. Pimenthal enjoyed a night out with a group of friends. In the early morning hours, they obtained take-out meals and sat on the curb outside the restaurant to eat. From across the street, an individual shouted, “Shut the fuck up,” and threw a two-liter soda bottle in their direction. It landed by their feet. Ross shouted back that throwing the bottle was a “good way to get your ass kicked.”

Ross observed the individual – later identified as the defendant Mr. Caril – walk across the street. He walked towards the group brandishing a knife. Ross told everyone to “run” and that the approaching individual had a knife. Nguyen and Ross withdrew. Unfortunately, Pimenthal was not able to do so in time. While running away, Ross saw Caril stab Pimenthal. Nguyen saw Caril “punch” Pimenthal three times in the chest. Mr. Hussen, who observed these events from his car nearby, exited his vehicle and shouted at Caril. Hussen asked if Carilwas “crazy” and “why” he stabbed Pimenthal. Caril asked Hussen if he “wanted some too.” Pimenthal died from his injuries.

Caril was charged with first degree murder. He was later charged with an additional count of second degree murder.

At trial, Caril, who suffers from paranoid schizophrenia, called an expert psychologist. The expert testified that Caril lacked the capacity to form criminal intent at the time of the incident. The trial court allowed this testimony. However, the trial judge prohibited Caril’s expert witness from testifying to hearsay statements from another psychologist’s report that the expert relied on. The court reasoned that the excluded statements concerned the collateral issues of Caril’s competency to stand trial and potential future need for civil commitment.

Caril was acquitted of first degree murder, but the jury found him guilty of the lesser included crime of second degree murder (intentional murder) with a deadly weapon. Caril was found guilty of second degree murder (felony murder) with a deadly weapon on count II.

On appeal, Caril argued the trial judge abused his discretion and violated his Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

COURT’S ANALYSIS & CONCLUSIONS

The Court Appeals said that under the Sixth Amendment, a defendant has a constitutional right to present a defense. This right is not, however, absolute. It may bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible.

Furthermore, an expert witness is permitted to base an opinion on facts or data that are not admissible in evidence. Ths can happen under ER 703 if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Consequently, the trial court has discretion to determine the extent to which the expert may convey this information.

Here, the Court of Appeals reasoned that the hearsay statements were relevant to explain the basis for the expert’s opinion. However, it further reasoned that admitting them could confuse or mislead the jury. This was because the hearsay statements concerned collateral issues related to the defendant’s competency to stand trial and potential future need for civil commitment.  Moreover, the probative value of the statements was low. They were inadmissible as substantive evidence and relevant only for the purpose of providing additional context for the expert’s opinion.

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

When Rap Lyrics Are Used Against You In Court.

Why Are Rap Lyrics Being Used As Evidence in Court?

Journalist Sam Levins reports that California could soon limit the admissibility of rap lyric evidence at trial.

Last week, California lawmakers passed new regulations meant to restrict such use of rap lyrics as evidence in criminal court, the first-of-its-kind legislation expected to become law in the US. Experts say that although the impact of the new policy will be narrow, it is a step forward in putting guardrails on a prosecutorial practice that all too often has worked to criminalize the artistic expression of young Black and Latino men.

THE HISTORY BEHIND ADMITTING RAP LYRICS AS EVIDENCE AT TRIAL.

According to the article, more than 500 reported cases of prosecutors using rap music as evidence against defendants. The practice started to surge in the 2000s, when authorities began to rely on social media in cases against amateur rappers.

The lyrics are typically cited to suggest “gang affiliation”, proof of crimes and intent, or demonstrate a rapper’s “violent” character or threats. The strategy was used against famous artists like Snoop Dogg in the 1990s, Drakeo the Ruler in 2018 and Tekashi 6ix9ine in 2019.

Professor Jack Lerner, a University of California, Irvine Law School professor, is an expert on the subject. He says the tactic is used across the nation. Apparently, the American Prosecutors Research Institute released a 2004 manual encouraging the use of lyrics in search warrants and trials.

RAP MUSIC ON TRIAL.

Although there are rare cases where words or music videos may be linked to specific criminal offenses, experts say research shows their use in court has often worked to prejudice jurors against young men of color.

Multiple studies have found that associating defendants with rap music creates a strong negative bias in jurors. People are significantly more likely to perceive lyrics as violent, offensive, dangerous and literal if they are from rap, compared to other genres.

Researchers have also found widespread examples of prosecutors taking lyrics out of context, presenting them in inaccurate and misleading ways, treating fictional lines as facts or confessions and using music to expand charges and secure convictions and lengthy sentences.

“Prosecutors talk to each other and see this is a very effective tactic, and that it’s unlikely to be reversed on appeal. So why wouldn’t you do this if your goal is to lock people up, whether they’re guilty or not?” ~Dr. Erik Nielson, University of Richmond Professor

CALIFORNIA’S PROPOSED LAW BANNING THE ADMISSION OF RAP LYRIC EVIDENCE AT TRIAL.

The new California law places limits on when prosecutors can cite defendants’ “creative expression” in court. It applies to all genres of music, dance, film and other art forms, though the law acknowledges that using rap lyrics in particular creates a substantial risk of prejudice. Reggie Jones-Sawyer is the California state representative behind the bill.

The law requires judges to hold a hearing without the jury present to consider the admissibility of the evidence and whether it would “inject racial bias into the proceedings”.

A pending bill in New York introduced earlier this year would prohibit rap lyrics unless there was “convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case”.

Federal lawmakers have introduced legislation similar to California’s bill, and the Recording Academy and major labels have backed the reforms.

WASHINGTON LAW ON CHARACTER EVIDENCE.

Under Evidence Rule 404, evidence of any other crime, wrong, or act is generally not admissible as character evidence. However, the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  Judges typically apply a balancing test  to determine whether character evidence is relevant, probative or prejudicial.

My opinion? Let’s hope California’s legislation passes. This is a viable way to stop overzealous prosecutors from using creative expression, which should never be prohibited.

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

Rainbow Fentanyl

DEA Warns of Brightly-Colored Fentanyl Used to Target Young Americans

The Drug Enforcement Administration is advising the public of an alarming emerging trend of colorful fentanyl available across the United States.  In August 2022, DEA and other police agencies seized brightly-colored fentanyl and fentanyl pills in 18 states.  Dubbed “rainbow fentanyl” in the media, this trend appears to be a new method used by drug cartels to sell highly addictive and potentially deadly fentanyl made to look like candy to children and young people.

“Rainbow fentanyl—fentanyl pills and powder that come in a variety of bright colors, shapes, and sizes—is a deliberate effort by drug traffickers to drive addiction amongst kids and young adults . . . The men and women of the DEA are relentlessly working to stop the trafficking of rainbow fentanyl and defeat the Mexican drug cartels that are responsible for the vast majority of the fentanyl that is being trafficked in the United States.” ~DEA Administrator Anne Milgram

Brightly-colored fentanyl is being seized in multiple forms, including pills, powder, and blocks that resembles sidewalk chalk. Despite claims that certain colors may be more potent than others, there is no indication through DEA’s laboratory testing that this is the case.  Every color, shape, and size of fentanyl should be considered extremely dangerous.

Fentanyl is a synthetic opioid that is 50 times more potent than heroin and 100 times more potent than morphine.  Just two milligrams of fentanyl, which is equal to 10-15 grains of table salt, is considered a lethal dose.  Without laboratory testing, there is no way to know how much fentanyl is concentrated in a pill or powder.

Fentanyl remains the deadliest drug threat facing this country.  According to the CDC, 107,622 Americans died of drug overdoses in 2021, with 66 percent of those deaths related to synthetic opioids like fentanyl.  Drug poisonings are the leading killer of Americans between the ages of 18 and 45.  Fentanyl available in the United States is primarily supplied by two criminal drug networks, the Sinaloa Cartel and the Jalisco New Generation Cartel (CJNG).

In September 2021, DEA launched the One Pill Can Kill Public Awareness Campaign to educate Americans about the dangers of fake pills.  Additional resources for parents and the community can be found on DEA’s Fentanyl Awareness page.

The DEA advises that if you encounter fentanyl in any form, do not handle it and call 911 immediately.

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

The Increase in Gun Violence Appears To Be The “New Normal”

An expert on trends in gun sales and gun violence in pandemic America

Journalist Martin Kaste reports in NPR that shootings spiked during the Pandemic, and this appears to be the “new normal.”

Hopes for a rapid decline in the pandemic murder spike are fading. Although national statistics for 2022 aren’t yet available, an informal year-to-date tally of murders in major cities is. The total count in those cities has dipped slightly lower than last year, but it’s still well above pre-pandemic levels. And in 40% of the cities listed, homicides are trending higher.

Some of the worst trouble spots are cities such as Philadelphia and Baltimore, where year-to-date homicides are rivaling the high tallies of 2020 and 2021. In Portland, Ore., the mayor has declared an “emergency” over gun violence, as the city struggles to reel in an annual murder count that shot up to 88 in 2021, from 36 in 2019. Even some smaller cities, such as Little Rock, Ark., are in danger of eclipsing last year’s murder numbers.

The Nature of Gun Violence Has Changed

But it’s not just that the numbers remain high. The nature of the gun violence itself has changed, according to those who watch these crimes closely.

“The ’90s was more gang-oriented, there was much more organized, sort of targeted shootings . . . Today, it’s petty offenses, petty conflicts, reckless shootings.” ~King County Prosecutor Elyne Vaught

Vaught says you can see the “rise in reckless-type shootings” in the county statistics, where the number of shots fired has more than doubled, compared to the same period in 2019, and with more shots fired per victim.

According to Kaste’s article, police around the country have noticed this trend. A new report from the Major Cities Chiefs Association points to “incidents of individuals indiscriminately shooting into large crowds while discharging massive amounts of ammunition,” such as the April mass shooting in downtown Sacramento.

The chiefs point to the availability of extended ammunition magazines, as well as the growing popularity of “auto sear” switches, small after-market devices that turn semi-automatic Glock pistols into illegal automatics, capable of spraying bullets. (Similar attachments are also exist for AR-15-style rifles, but police worry more about handguns, which are used far more often in crimes.)

Gun Violence Often Starts Online

Temple University criminologist Jason Gravel, who studies how young people acquire and use guns, says the role of social media may be the biggest change of the last few recent years.

“It might look like some random shooting on the street, but if that was preceded by a bunch of verbal threats online or in social media, you don’t see the first part of the conflict, you just see the end result,” ~ Jason Gravel, Temple University Criminologist.

More Guns Are Available

There may have been more guns around for kids to find. Firearms dealers reported record sales during the pandemic, and a recent article in the Annals of Internal Medicine estimates that 2.9% of U.S. adults became new gun owners. By extension, the authors estimate 5 million children were “newly exposed” to firearms in their households.

It’s hard not to view these incidents as yet another result of America’s polarized gun debate. Many Americans hold their right to bear arms, enshrined in the US Constitution, as sacrosanct. But critics of the Second Amendment say that right threatens another: the right to life.

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

Right to Counsel At Critical Stages In Criminal Proceedings

Will Wearing an Orange Jumpsuit in Court Affect the Outcome? - Szar Bail Bonds

In State v. Charleton, the WA Court of Appeals held that even though a defendant lacks counsel at arraignment, this error is harmless because setting bail has no effect on the remainder of the case.

BACKGROUND FACTS

Mr. Charleton was arrested and held for 72 hours on allegations of a sex offense. During his initial appearance he did not have a defense attorney. After the State filed charges, the defendant appeared again without counsel. The court set bail and continued arraignment a few days. At arraignment, the defendant appeared with counsel and was granted release. The judge later found the defendant guilty of child rape and child molestation.

The defendant challenged his convictions on arguments that he lacked counsel at a critical stage of the proceedings. Therefore, this failure to appoint counsel violated the Sixth Amendment to the United States Constitution and required reversal of his convictions.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) gave a 5-part analysis of the legal issues below discussed below:

The Constitutional Right to Counsel Attached at Charlton’s First Two Court Appearances.

The COA explained that superior courts are required to process defendants  in court as soon as possible, “but in any event before the close of business on the next court day.” A court must provide a lawyer at the “preliminary appearance” pursuant to court rule. And the right to an attorney accrues as soon as feasible after the individual is taken into custody, appears before a judge, or is formally charged, whichever occurs earliest. Consequently, the COA reasoned that Mr. Charleton’s right to counsel attached after he was charged and appeared for arraignment.

Charlton’s First Court Appearance Was Not a Critical Stage of the Criminal Proceedings. However, Charlton’s Second Appearance Was a Critical Stage Because the Trial Court Addressed the Setting of Bail.

Here, the COA explained that a “critical stage” is one which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or in which the outcome of the case is otherwise substantially affected. Critical stages involve pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel.

Even Though Charleton’s Second Appearance Involving Bail Was a Critical Stage, His Appearance Without an Attorney Was Harmless Error.

The COA reasoned that an error is harmless if the State establishes beyond a reasonable doubt that the verdict would have been the same result without the error. Here, the trial court’s imposition of bail on an unrepresented Mr. Charleston had no effect on his case resolution.

“Because of the court’s bail decision and the continuance of the arraignment, Charlton was in jail for an additional 10 days. His brief continued detention certainly did not pervade or contaminate the entire proceeding. Therefore, there was no structural error and we must apply the harmless error analysis.” ~WA Court of Appeals.

Accordingly, the COA affirmed Charlton’s convictions.

My opinion? Bad decision. Lack of defense counsel at bail hearings can potentially cripple a defendant’s ability to fight the charges. At arraignment, defense attorneys often argue bail and release conditions. A competent defense attorney can persuade the judge to lower the bail recommended by the prosecution. Even better, a defense attorney can persaude the judge to release the defendant on personal recognizance. Defendants who are released from jail are better positioned to assist in their defense. They can help locate  witnesses, enter treatment programs and contemplate substantive defenses.

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

Traffic Deaths Increase

US traffic deaths way up; reckless driving blamed by feds

Excellent article from journalist of the Washington Post reports that U.S. traffic deaths jumped in 2022, hitting 20-year high.

More than 9,500 people were killed in traffic crashes in the first three months of this year, federal transportation officials said Wednesday — a figure that represents the deadliest start to a year on U.S. roads in two decades.

In seven states and the District, officials estimated crash deaths jumped at least 50 percent. Nationwide, deaths were up 7 percent compared with the same period last year.

The figures are preliminary estimates, and the National Highway Traffic Safety Administration (NHTSA) did not release breakdowns of the causes of crashes. Officials say a surge in traffic fatalities that started in 2020 as the pandemic began has continued unabated.

“The overall numbers are still moving in the wrong direction . . . Now is the time for all states to double down on traffic safety.”  ~Steven Cliff, Administrator for NHTSA.

EXPLANATIONS FOR THE SURGE IN TRAFFIC FATALITIES

Experts have struggled to come up with an explanation for the spike in deaths but have pointed to less congestion amid changed driving patterns during the COVID-19 Pandemic, which they say have allowed more dangerous speeds. Officials say there’s also evidence of an uptick in Reckless Driving, DUI,   DUI or Driving Without a Seatbelt.

The early stages of the pandemic saw roads become emptier as people stayed home. However, drivers quickly returned to their vehicles, even as driving was no longer as dominated by morning and evening commutes. NHTSA reported that Americans drove more than 750 billion miles between January and March, an increase of more than 5 percent compared with 2021.

NHTSA reported 7,893 traffic deaths in the first three months of 2020, a period mostly before the onset of the pandemic. In 2021, the figure jumped to 8,935 deaths, then rose to 9,560 this year. The number of deaths this year was the highest in the first three months of a year since 2002. The first quarter is consistently the least deadly on U.S. roads.

SOLUTIONS FROM THE GOVERNMENT

Transportation Secretary Pete Buttigieg earlier this year said the nation would work to eliminate crash deaths, pledging to adopt a “safe system” approach that would look as much at the design of roads and cars as the behavior of individual drivers. The effort is backed by billions in new safety funding from last year’s infrastructure law, including a $5 billion fund that will provide grants aimed at protecting bicyclists and pedestrians.

The infrastructure law included mandates for technology that could address some of the biggest causes of fatalities, such as calling for NHTSA to require breath monitoring devices for alcohol in new cars. Such a system is in testing, but a mandate is likely years away.

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

Display of a Firearm & Probable Cause

What to know about open carry gun laws in Arizona - Phoenix Business Journal

In US v. Willy  (July 26, 2022), the Ninth Circuit Court of Appeals held that a defendant’s charges for Unlawful Display of a Weapon were not supported by Probable Cause.

BACKGROUND FACTS

Reporting Party #1

On May 12. 2019, the Yakima County’s Sheriff’s Office received a call from a witness (“Reporting Party 1”). The witness stated that a man had pulled up outside of his home in a vehicle and displayed a firearm. Dispatch relayed this information to Deputy Thaxton, who interviewed Reporting Party 1 at his residence. Reporting Party 1 told Deputy Thaxton that a white male in a green truck pulled up on the street in front of his house. The man began talking about being abducted and kept somewhere in the area. The man said he was trying to find the place where he was kept. During the conversation, the man pulled out a semiautomatic pistol, racked the slide, and then put it down.

Reporting Party 1 expressed concern about the man’s mental state. He provided Deputy Thaxton with the truck’s license plate number. The vehicle came back as registered to Mr.  Willy. Thaxton showed Reporting Party 1 Willy’s Department of Licensing photo, and he identified Willy as the man with whom he had spoken. Reporting Party 1 said that Willy made no threats to him, nor had Willy pointed the pistol at him at any time.

Reporting Party #2

About ten minutes after leaving Reporting Party 1’s residence, Deputy Thaxton responded to another report from dispatch. The second call had come from Reporting Party 2, who lived about three miles from the previous caller. Deputy Thaxton spoke to the second witness over the phone because Reporting Party 2 had already left her residence. Reporting Party 2 stated that a man with a name like “Willis” pulled up to her gate in a green truck when she was leaving her house. “Willis” told her that he had been kidnapped and held in a camouflaged trailer or van in the area and that he was trying to find it. While they were talking, the man told her he was armed and then displayed a pistol and put it away. Reporting Party 2 told the man she did not know the place he was looking for, and he drove away. Reporting Party 2 said that she was not was not directly threatened, nor was Willy argumentative or hostile.

Deputy Thaxton located the green truck pulling into a gas station. Once he confirmed the license plate matched the one given to him by Reporting Party 1, Deputy Thaxton turned on his emergency lights and conducted a “high-risk stop.” With his firearm drawn, Deputy Thaxton ordered Willy out of the vehicle. Willy complied with all of Deputy Thaxton’s orders. While making Willy turn around, Deputy Thaxton saw a pistol holstered on his hip. Deputy Thaxton removed the gun, put Willy in handcuffs, and escorted him to the back seat of the police vehicle.

After his arrest, a search of Willy’s vehicle and person recovered illegal firearms and a modified CO2 cartridge. Willy was charged with making and possessing a destructive device in violation of the National Firearms Act, 26 U.S.C. § 5861. He was also charged with Unlawful Display of a Weapon under Washington statute.

Willy moved to suppress the evidence. The lower federal district court granted the motion to suppress. It found that although Deputy Thaxton had reasonable suspicion to conduct an investigatory stop, he lacked probable cause to make the arrest. The evidence was “tainted by the illegality of the arrest.” The Government filed a timely notice of appeal to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

First, the Ninth Circuit analyzed the scope of Washington’s Unlawful Display of a Weapon statute. It began with a discussion of how the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.

“Washington is an open carry state. That means that it is presumptively legal to carry a firearm openly.” ~Ninth Circuit Court of Appeals

“The bare fact that Willy displayed a weapon would not be sufficient to stop Willy, because there is no evidence that he was carrying a concealed weapon,” said the Ninth Circuit. Moreover, the reporting parties’ statements that Willy was carrying a gun “created at most a very weak inference that he was unlawfully carrying the gun concealed without a license, and certainly not enough to alone support a Terry stop.”

Additionally, the Ninth Circuit emphasized that Thaxton acquired no additional reasons for arresting Willy until after he stopped him. When Thaxton ordered Willy to leave his truck and turn around slowly, Willy was openly carrying his pistol, in a holster on his hip. The Ninth Circuit pointed out that Washington courts have refused to enforce the statute when the threats are not sufficiently direct or imminent.

Deputy Thaxton’s suspicion that Willy had violated § 9.41.270 arose not from his own observations but from the accounts of two reporting parties.

“The strongest fact for the government is that Willy racked the slide of his gun in the presence of Reporting Party 1. In context, however, that fact does not demonstrate that Willy was acting in manner that warrants alarm.” ~Ninth Circuit Court of Appeals.”

With that, the Ninth Circuit next addressed whether the C02 cartridge found in Willy’s car – and his statements to police – should be suppressed as evidence supporting the federal charges. The Ninth Circuit began by saying that under the “fruits of the poisonous tree” doctrine, evidence seized subsequent to a violation of the Fourth Amendment is tainted by the illegality and subject to exclusion, unless it has been sufficiently “purged of the primary taint.” Wong Sun v. United States. Ultimately, the Ninth Circuit suppressed that evidence as “fruits of the poisonous tree.”

The Ninth Circuit concluded by affirming the lower federal court’s order granting the defendant’s motion to suppress.

My opinion? Good decision. The Ninth Circuit gave an accurate assessment of Washington Law surrounding this issue and made the right decision. Washington is indeed an “Open Carry” state. This fact alone challenges many people’s allegations that someone is unlawfully displaying a weapon. Also , the probabale cause alleged in this case was fart too attenuated to be reliable.

Please contact my office if you have Firearms Offense involving Search and Seizure issues. Hiring an effective and competent defense attorney is the first and best step toward justice.

High Court Reverses Conviction Due to Juror’s Racial Biases At Jury Selection

Opinion | To Save Our Justice System, End Racial Bias in Jury Selection - The New York Times

In State v. Gutierrez, the WA Court of Appeals reversed a defendant’s conviction because a juror’s inquiries on the defendant’s  immigration status demonstrated ethnic bias.

FACTUAL BACKGROUND

Mr. Gutierrez was charged with first degree robbery, second degree assault, and first degree unlawful possession of a firearm. His case proceeded to trial. During jury selection, potential Juror #16 asked about the immigration status of the defendant. The juror had additional colloquy with the attorneys. Neither party struck juror #16. The juror was later seated on the jury panel. The jury later entered a verdict of not guilty to the charge of first degree robbery, and guilty verdicts on the charges of second degree assault, unlawful possession of a firearm, and felony harassment.

On appeal, Mr. Gutierrez raises an issue of juror bias. He argued that during jury selection, Juror #16 demonstrated actual bias, but was nevertheless seated as a
juror and not removed by his attorney or the court.

COURT’S ANALYSIS & CONCLUSIONS 

The Court of Appeals reversed Mr. Gutirrrez’s conviction. It reasoned that although Mr. Gutierrez did not move to strike Juror #16, a trial judge must do so where grounds to do so are apparent in the record. Under RCW 2.36.110, it is the judge’s duty to excuse any juror who has manifested unfitness as a juror by reason of bias or prejudice.

The Court of Appeals further reasoned that a juror demonstrates actual bias when he exhibits a state of mind in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. It referred to  State v. Berhe in describing how bias based on race and ethnicity may be explicit or implicit:

“Bias based on race and ethnicity may be explicit or implicit. Explicit racial bias is consciously held, although the biased person may not be willing to admit to having such bias if asked. Implicit racial bias, however, primarily exists at an unconscious level, such that the biased person is unlikely to be aware that it even exists. This occurs because it is now socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them.” ~WA Court of Appeals

“In this case, the comments by Juror #16 expressed actual bias,” said the Court of Appeals. “Juror #16’s comments demonstrated that he was operating under a false presumption that Hispanic and Latinx persons were not citizens, and if they were not citizens then they were guilty of a crime.” Consequently, the Court ruled that Juror #16’s comments demonstrated ethnic bias sufficient to raise a prima facie showing that he was unqualified to sit as a juror in Mr. Gutierrez’s case. With that, the Court of Appeals reversed Mr. Gutierrez’s criminal conviction:

“Juror #16 expressed actual bias during voir dire by presuming that Hispanic or Latinx defendants were not citizens and were most likely committing an immigration crime. When the attorneys failed to address this bias, the court should have inquired further or excused the juror on its own initiative. Failure to do so is an abuse of discretion. We reverse and remand.” ~WA Court of Appeals.

My opinion? Good decision. Illegal racial discrimination in jury selection inflicts harm on excluded jurors, produces wrongful convictions and excessive sentences, and compromises the integrity of the legal system as a whole.

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.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

Phone: (360) 746-2642
Fax: (360) 746-2949

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