Category Archives: Domestic Violence

Shackling Defendants In Court – Without Reason – Is Unconstitutional.

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, felony, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

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 are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Virtual Dating & DV

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Behind the Keyboard: Spotting Digital Dating Abuse

What defines a “virtual dating relationship,” especially in today’s age of technology, smart phones, online profiles, dating apps, etc.?

This question is asked quite often. Unfortunately, many people find themselves facing criminal charges before seeking legal advice!

In  C.C. v. J.A.H., a recent and novel case out of the New Jersey Appellate Division, a “dating relationship” under New Jersey’s Prevention of Domestic Violence Act can occur where parties never experienced a traditional, in-person “date.”

BACKGROUND FACTS

The parties met at a gym where the Plaintiff was an employee, and the Defendant a member.  They interacted flirtatiously, and eventually exchanged phone numbers.  This led to a proliferation of text messages between the parties – approximately 1100 text messages over a period of one month.  The Court of Appeals described the text messages as being “exchanged at all hours of the day and night” and as “sexually explicit and suggestive in nature.”  The Appellate Division also found that the Defendant declared his romantic interest during the course of these text messages.

During this period, the parties continued to interact with one another in person (described as “flirtatious” interaction by the Plaintiff), However, both sides agreed that they never went out on a date in the traditional manner.  The Defendant argued they never went on a date.  Accordingly, the Defendant argued, the Plaintiff could not obtain a No Contact Order under the Act.

COURT’S ANALYSIS AND CONCLUSIONS

In short, the New Jersey Appellate Division found that a dating relationship existed.

It characterized the issue as subjective rather than an objective analysis.  It emphasized that although the interactions between these parties may not bear any semblance to “dating” in the eyes of someone perhaps older and with a more traditional view of what it means to date somebody, for the Plaintiff (who was 22 years old), these interactions were part of a normal 21st century dating life.

Ultimately, the sheer volume of the communications and the nature of their content supported the Court’s reasoning:

“[T]he absence of what might be viewed as traditional dating activities and affirmations does not render insignificant the proliferate and exceedingly intimate communications between the parties that underscored their relationship.  Indeed, it is the nature and proliferation of those communications that constituted the parties’ “dating activities” and transformed theirs into a “dating relationship.”

New Jersey is not alone. Indeed, Washington statutes define the term in a manner consistent with the factors that guided the New Jersey Court’s analysis.  In Washington, “Dating relationship” means a social relationship of a romantic nature. Factors that the court may consider in making this determination include: (a) The length of time the relationship has existed; (b) the nature of the relationship; and (c) the frequency of interaction between the parties.

My opinion? This is certainly a cautionary tale. While the law is perhaps notorious for being behind the times, technologically speaking, this decision represents an appropriate understanding of what it means to be in a dating relationship in this day and age and goes a long way to protecting victims of domestic violence who may not have been on any traditional dates, but nevertheless were involved in a dating relationship.

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

Victim’s Motive To Testify

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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.

Decrease in DV Reporting

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Audrey McIntosh | Commonwealth Fund

Great article by Denver Pratt of the Bellingham Herald reports that Whatcom County agencies helping domestic violence and child abuse victims say they’ve seen a decrease in DV reporting since the start of the COVID-19 pandemic.

According to Pratt, the agencies say this is a worrying sign, as it likely means victims are isolated with their abusers and are less likely to be able to access help.

Elizabeth Hart, a program manager with Domestic Violence and Sexual Assault Services, said the nonprofit has seen a decrease in the number of calls reported to its 24-hour helpline. Hart said in March they helped 236 clients, as compared to 360 in March of last year.

Hart said the decrease suggests to her that people in abusive situations have a limited ability to reach out for help as Washington is under a “Stay Home, Stay Healthy” order in an attempt to stop the spread of the new coronavirus. Gov. Jay Inslee has extended the order through May 31.

Hart said during a stay-home order, abusive partners have more opportunity to watch and control who their victims talk to and what they do. And as stresses mount in the home, like job loss or having to educate children while schools are closed, the number of abusive incidents could rise or become more dangerous, Hart said.

Ms. Hart also said if a victim loses a job, they can become more financially dependent on their abusive partner, making it harder to leave the abusive relationship. Hart said prior to the global pandemic, financial impacts were one of the main reasons a victim would stay with an abusive partner.

However, false reporting and victim recantations also commonly happen in DV crimes; and are just as likely to exacerbate during these strange and uncertain times.

Please contact my office if you, a friend or family member are charged with Domestic Violence during this “Stay Home, Stay Healthy” period. Hiring an experienced criminal defense attorney is the first and best step towards justice.

COVID-19 Brings DV Crimes?

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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.

Police Stop Booking Some People Into Whatcom Jail Due To Coronavirus

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Image result for walk out of jail free coronavirus

Whatcom County law enforcement agencies stopped booking people into the Whatcom County Jail for certain crimes on Thursday, March 19, due to the coronavirus outbreak.

Apparently, people arrested will be booked and released for everything except certain offenses that represent a serious threat to public safety. Those crimes include domestic violence, violations of a no-contact order, felony DUI, sex offenses, burglary and other violent crimes. Those booked for misdemeanor DUI will be held until sober.

The memo suggests officers arrest, book and release people when they can, giving them notice of when to appear in court. And those who are booked on charges that pose a threat to public safety will be held until they see a judge.

At this point, seven Whatcom County residents have been diagnosed with the respiratory illness, one of whom died, according to the Whatcom County Health Department.

Whatcom County Sheriff Bill Elfo said the measures are looking out for the health of the people who work in the jail, as well as those incarcerated there.

“They’re in place because of some compelling public safety and public health issues. We want to prevent the spread of COVID-19, but do it in a way that doesn’t minimize public safety. We’re still booking and holding violent people. These are temporary measures . . . We’re trying to take the jail population as low as we can safely and reasonably do under the circumstances.” ~Sheriff Bill Elfo

Please contact my office if you, a friend or family member face criminal charges and are jailed indefinitely in the midst of the Coronavirus Pandemic. Obviously, getting released as soon as possible is a major priority. And hiring an experienced attorney is the first and best step toward justice.

State-Created Danger Doctrine and Domestic Violence Victims

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Domestic Violence, Due Process, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, police, Police Misconduct, Qualified Immunity, Skagit County Criminal Defense, State-Created Danger Doctrine, Whatcom County Criminal Defense, , , , ,

The Chilling Inaction on Domestic Violence in Russia is Endangering Women's Lives | Human Rights Watch

In Martinez v. City of Clovis, the Ninth Circuit Court of Appeals held that police officers investigating a DV crime breached the victim’s Due Process rights by intensifying her peril.

BACKGROUND FACTS

Ms. Martinez was a victim of domestic violence. After reporting an incident to police, the investigating officers took her statement in confidence as to physical and sexual abuse by her boyfriend Mr. Pennington in a hotel and then repeated the substance in the presence of the abuser. That night or the next day, Pennington again attacked Martinez, this time resulting in his arrest. Consequently, Ms. Martinez recanted her accusations out of fear that she would again be attacked. Later, Ms. Martinez sued the investigating officers and the Clovis Police Department.

LEGAL ISSUE

Whether Ms. Martinez can recover damages under 42 U.S.C. § 1983 from the law enforcement officers who allegedly placed her at greater risk of future abuse.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit Court of Appeals held that the State-Created Danger Doctrine applies because actions of the police put Martinez in greater jeopardy than if they had not arrived. It reasoned that officer Hershberger told Mr. Pennington about Martinez’s testimony relating to his prior abuse, and also stated that Martinez was not ‘the right girl’ for him.

“A reasonable jury could find that Hershberger’s disclosure provoked Pennington, and that her disparaging comments emboldened Pennington to believe that he could further abuse Martinez, including by retaliating against her for her testimony, with impunity,” said the Court. “The causal link between Hershberger’s affirmative conduct and the abuse Martinez suffered that night is supported by Martinez’s testimony that Pennington asked Martinez what she had told the officer while he was hitting her.”

“A reasonable jury could find that Pennington felt emboldened to continue his abuse with impunity.”

The Court further reasoned that the State-Created Danger Doctrine applies when an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity.

Nevertheless, the Court also decided the officers were entitled to Qualified Immunity because the law with respect to state-created danger doctrine was not clearly established. He added: “Going forward, the law in this circuit will be clearly established that such conduct is unconstitutional.”

Good opinion. Please contact my office if you, a friend or family member face criminal Domestic Violence allegations. Hiring an effective and competent defense attorney is the first and best step toward justice.

Appearance of Fairness

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Image result for police officer stands beside testifying witness

In State v. Gorman-Lykken, the WA Court of Appeals held that before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, and (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant.

BACKGROUND FACTS

Mr. Gorman-Lykken was charged with Rape in the Second Degree (DV). The State was required to prove that Gorman-Lykken engaged in sexual intercourse with his girlfriend when she was incapable of consent.

At trial, Gorman-Lykken wanted to testify. Before he did so, his defense attorney objected to the proximity of the corrections officer assigned to Gorman-Lykken while he was on the witness stand. The trial court responded, “Let me just touch base with the corrections officer.” The corrections officer stated, “If he’s up here, we’re up here.”

The trial court then observed on the record that sometimes one to three corrections officers were assigned to a defendant in court and that “sometimes those individuals are large, larger than average.” By contrast, the court noted that the corrections officer assigned to Gorman-Lykken was “not one of our largest corrections officers, and there’s only one of her.” The court also stated that “the policy of the corrections staff is that . . . they are to be in close proximity to somebody who is testifying that’s been accused of a crime.” The court concluded, “I think on the whole I’m comfortable having the officer
stay where she’s at.”

The jury found Gorman-Lykken guilty as charged. He appealed his conviction on the issue of whether the trial court erred in allowing the corrections officer to be stationed next to him during his testimony as a security measure.

COURT’S ANALYSIS & CONCLUSIONS

Preliminarily, the Court of Appeals said that trial courts have broad discretion to make trial management decisions, including provisions for the order and security of the courtroom.

However, the Court also acknowledged that trial courts commit reversible error when they base their decisions solely on the judgment of correctional officers who believed that using restraints during trial was necessary to maintain security, while no other justifiable basis existed on the record.

Furthermore, Courts have recognized that certain courtroom security measures are inherently prejudicial. This includes shackling, handcuffing, or other physical restraints; gagging the defendant and holding a trial in a jail. Courts must closely scrutinize such measures to ensure that they further essential state interests.

“Before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant,” said the Court of Appeals.

Here, however, the Court of Appeals was concerned that the trial court never stated case-specific reasons why this case or this defendant created the need for this security measure.

“The court simply stated, ‘I’m comfortable having the officer stay where she’s at,'” said the Court of Appeals. “Accordingly, we hold that the trial court abused its discretion in allowing the corrections officer to be stationed next to the witness stand when Gorman-Lykken testified.”

“Here, the State does not argue that any error was harmless. And there is no indication that the State could show harmlessness beyond a reasonable doubt. Even though stationing an officer next to the witness stand may not be inherently prejudicial, allowing that measure created a risk that the jury might infer that Gorman-Lykken was dangerous or guilty. The State cannot show beyond a reasonable doubt that stationing the officer next to the witness stand did not influence the jury.”

The Court also noted that the evidence of Gorman-Lykken’s guilt was not so overwhelming that a guilty verdict was the only rational result. At trial, Gorman-Lykken’s girlfriend testified that she had taken medication that essentially put her to sleep and that she had told Gorman-Lykken not to have sex with her while she was asleep.

“But Gorman-Lykken testified that he asked his girlfriend if she was up for sex, that she verbally agreed, and that she was coherent during the sexual activity,” said the Court of Appeals. “Therefore, the jury was presented with conflicting evidence, not evidence that overwhelmingly established Gorman-Lykken’s guilt.”

With that, the Court of Appeals held that the trial court’s error in allowing an officer to be stationed next to the witness stand when Gorman-Lykken testified was not harmless. It reversed Gorman-Lykken’s conviction and remanded the case back to the trial court for further consideration.

My opinion? Good decision. It’s highly prejudicial to have police and correctional officers standing by defendants as they testify before a jury. It silently says that the defendant is extremely dangerous and volatile. Juries are more likely to convict defendants who appear dangerous. Congrats to the Court of Appeals for deciding this one correctly.

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.

Washington Crime Report Released

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Crime Report — The Downey Patriot

The Washington Association of Sheriffs and Police Chiefs (WASPC) just released its 2017 Crime in Washington Annual Report.

It was compiled from data submitted to the Washington State Uniform Crime Reporting Program of the WASPC by Washington State law enforcement agencies.

FACTS AT A GLANCE

  • In 2017, Crimes Against Persons showed an increase of 0.4% with 84,145 offenses reported; compared to 2016 offenses reported of 83,771.
  • In 2017, Crimes Against Property showed an decrease of 6.7% with 295,274 offenses reported; compared to 316,361 offenses reported in 2016.
  • In 2017, Crimes Against Society showed an increase of 5.9% with 32,011 offenses reported; compared to 30,230 offenses reported in 2016.
  • Group A offenses were cleared by arrest or exceptional means 25.6% of the time.
  • The crime rate (per 1,000 in population) for Group A offenses was 69.1.
  • The total arrest rate per 1,000 in population was 25.6.
  • Juveniles comprised of 6.9% of the total arrests.
  • Domestic Violence offenses made up 50.4% of all Crimes Against Persons.
  • A total of 25,400 persons were arrested for DUI, including 163 juveniles.
  • A total of 531 hate crime incidents were reported.
  • There were a total of 1,643 assaults on law enforcement officers and no officers killed in the line of duty.
  • Full-time law enforcement employees totaled 15,873; of these 11,078 were commissioned officers.
  • There were 11,986 arrests for drug abuse violations; of that number, 10.2% were persons under 18 years of age.
  • Possessing/concealing of marijuana constituted 16.7% of the total drug abuse incidents; the distributing/selling of marijuana accounted for 1.1% of incidents(type of criminal activity can be entered three times in each incident).
  • Possessing/concealing of heroin constituted 32.2% of the total drug abuse incidents; the distributing/selling of heroin accounted for 4.6% of incidents (type of criminal activity can be entered three times in each incident).
  • The weapon type of “Personal Weapons” (hands, fists or feet) was reported in 51,817 incidents; firearms were reported in 8,465 incidents (up to three weapons can be reported in each incident).
  • There were 6,212 sexual assault (forcible and non-forcible) incidents reported in 2017. There were a total of 6,212 victims in these incidents; with a total of 6,300 offenders.
  • There were a total of 54,294 domestic violence incidents reported; 12,023 of these incidents were Violations of Protection or No Contact Orders.

Overall, the data is very interesting.

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.

Right to Impartial Jury

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In State v. Phillips, the WA Court of Appeals held that the trial court did not violate an African-American defendant’s right to an impartial jury by dismissing a prospective juror despite the juror’s feelings that African American men are more prone to violence.

BACKGROUND FACTS

On July 1, 2016, Mr. Phillips came home late after his wife Ms. Philips was in bed asleep with their infant daughter. Ms. Philips told Mr. Phillips to leave her alone. Their daughter called 911 and reported that Mr. Phillips was hitting Ms. Philips. When Mr. Phillips saw his daughter was calling the police, he knocked the phone from her hands.

King County Sheriff’s deputies responded to the 911 call and found the house in chaos. Mr. Phillips was arrested and booked into jail. From jail, Mr. Phillips repeatedly called Mrs. Philips demanding that she get him out and expressing his anger at the police having been called. Mr. Phillips was charged with Assault in the Second Degree Domestic Violence (DV) and Tampering With a Witness.

Jury Selection

During jury selection, the trial judge asked if any of the jurors had personal experience
with domestic violence. Juror 10 was among the members who raised their hand. When asked to elaborate, he explained that his sister and his wife’s sister-in-law were both involved in abusive relationships with intimate partners.

Juror #10 also revealed an experience in college after an intramural basketball game when an African American player on the opposing team assaulted him. Juror 10 explained, “nothing came of it, but it left an emotional imprint.” He further elaborated,

“And this is an emotional truth. I don’t live this way; I don’t believe this; but I’m also aware that feelings happen in reality that black men are more prone to violence . . . It was also notable that afterwards when, you know, the gym supervisor was called and there was just a huddle on the spot, and then, of course there was denial and, you know, dismissiveness of it. And that’s another narrative; that those who are violent try to get out of it; so those are two personal emotions imprints that are there, as well.”

From these comments, both the State Prosecutor and Mr. Philips’ defense attorney asked numerous questions to Juror #10. Ultimately, neither the State nor defense counsel exercised a peremptory challenge or moved to strike Juror #10 for cause. Later, Juror #10 served on the jury.

Ultimately, the jury found Phillips guilty of second degree assault and found the State prove aggravating circumstances. The jury was unable to reach a verdict on the witness tampering charge, and it was dismissed. Mr. Philips was sentenced to 120 months.

He appealed. One of the issues was whether Juror #10 should have been struck from serving on the jury panel.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals upheld Mr. Philips’ conviction.

The Court started by giving a substantial amount of background on the issue of jury selection. It said the Sixth and Fourteenth Amendments of the United States Constitution, and article 1, section 22, of the Washington Constitution, guarantee a criminal defendant the right to trial by an impartial jury.

Furthermore, in order to ensure this constitutional right, the trial court will excuse a juror for cause if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of prejudice.

Also, at trial, either party has a statutory right to challenge a prospective juror for cause. “Actual bias is a ground for challenging a juror for cause,” said the Court of Appeals. “Actual bias occurs when there is the existence of a state of mind on the part of the juror 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.”

Furthermore, Under State v. Irby, RCW 2.36.110 and CrR 6.4 it is the judge’s duty to excuse potential jurors from  jury service if they have manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect. These court precedents, statutes and court rules give a trial judge an independent obligation to excuse a juror, regardless of inaction by counsel or the defendant.

However, the Court of Appeals ultimately reasoned that the present case was distinguishable from Irby.

Also, the Court of Appeals reasoned that defense counsel was alert to the possibility of biased jurors.

“Defense counsel actively questioned Juror #10, including questioning whether, despite juror 10’s concerns, the juror would follow the court’s instructions and base his decision on the evidence presented,” reasoned the court of Appeals. “As a result, defense counsel did not challenge Juror #10. This suggests that defense counsel observed something during voir dire that led counsel to believe Juror #10 could be fair.”

Furthermore, the Court of Appeals said it was also significant that Phillips used his peremptory challenges to strike several jurors, but had one peremptory challenge remaining when he accepted the jury, including Juror #10. “Again, this suggests that defense counsel either wanted juror 10 on the jury, or did not want one or both the next potential jurors on the panel,” said the Court of Appeals.

Consequently, the Court of Appeals held that the trial court did not abuse its discretion in failing to excuse Juror #10 for cause and upheld Mr. Philips’ conviction.

My opinion? Bad decision.

I’ve conducted nearly 40 jury trials, which is more experience than most criminal defense attorneys have. In my experience, potential jurors have a tendency to mitigate, justify, deny, back-pedal and just plain cover up any biases they have. It’s human nature. Therefore, if any juror states they have a biases which prejudice a criminal defendant, then that juror should be excused. Period.

Unfortunately, it appears Defense Counsel also failed to strike Juror #10. That is unfortunate as well. As the judge said, however, this may have been strategic. Perhaps Defense Counsel wanted to avoid impaneling a potential juror who was actually more biased than Juror #10. We don’t know.

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.