Category Archives: Drug Offenses

Substance Use: Health Issue Or Crime?

What is Substance Abuse? | Defining Drug & Alcohol Abuse

New polling data from the Legal Action Center shows that more Americans than ever think substance use should be treated as a health issue, rather than a criminal justice issue. But many state and federal laws continue to criminalize substance use – more than half of states still treat drug possession as a felony.

THE POLL DATA

The Legal Action Center poll revealed that in 2024, 75% of Americans thought that substance use disorders (SUD) “should be treated more as a health problem than a criminal problem”, compared with 67% in 2019. The poll also showed rising support for increased spending and access for SUD treatment, including in jails and prisons.

ARE FEDERAL, STATE AND LOCAL DRUG POLICIES WORKING?

The Biden administration dramatically expanded access to naloxone, an overdose-reversal medication, including by making it available over the counter. Some jurisdictionsincluding Chicago, have made naloxone and fentanyl test strips free to the public. And several states decriminalized drug-checking equipment, including fentanyl test strips in 2023, but some still forbid drug checking.

Some State and local drug policies intended to increase SUD treatment access have been around for a long time, but local and federal governments often fail to provide sufficient funding and attention to make the most of those policies. Even outside of SUD treatment, there is a shortage of behavioral health workers in the US.

HOW DO DRUG CRIMES GET INVESTIGATED AND PROSECUTED?

Drug crimes and charges generally come out of a warrant, a search, a seizure, an informant, a plain view or a tip.  This means that the “how and why” a was searching and seizing something, or, why and how they were engaging an informant or tipster, will raise constitutional issues.  State and Federal Agents must act within Washington State and Federal law.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Numerous affirmative defenses exist, including Unwitting Possession and Entrapment. In general, criminal drug cases can be guided towards a favorable resolution. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v Blake Does Not Open The Door To Untimely Challenges On Voluntary Guilty Pleas

florida courtroom motion to withdraw plea

In State v. Olsen, the WA Supreme Court held that a defendant’s knowing and validly entered guilty plea to a 2003 drug possession charge did not become unknowing and involuntary simply because the State v. Blake decision in 2021 declared Washington State’s drug possession statute unconstitutional.

FACTUAL BACKGROUND

In 2003, Olsen pled guilty to Forgery and Unlawful Possession of Controlled Substance in two separate matters at the same time. In 2005, Olsen pled guilty to unlawful possession of firearm second degree and unlawful possession of controlled substance from the same incident. He completed his sentences on both matters.

In 2021, Olsen filed CrR 7.8 motions to withdraw his guilty pleas as being involuntary pleas to nonexistent crimes and that the pleas were part of indivisible agreements, pursuant to State v. Blake. The superior court denied the motions and only vacated the drug possession convictions.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court held that while Blake invalidated Olsen’s simple drug possession convictions, it did not open the door to untimely challenges to the voluntariness of guilty pleas.

“A motion to withdraw a plea after judgment has been entered is a collateral attack,” said the Court.  “Criminal defendants seeking to collaterally attack their judgment and sentence must do so within one year of the judgment and sentence becoming final.”

The Court acknowledged that RCW 10.73.100(7) provides an exception to the one-year time bar when there has been a significant, retroactively applicable change in the law that is material to the defendant’s conviction or sentence. However, the defendant must show the law changed in a way that entitles him to relief, such as by changing the process or result of their case. Here, Blake is not material to Olsen’s due process claim challenging the voluntariness of his drug possession pleas.

Olsen’s guilty pleas, knowingly and validly entered, did not become unknowing and involuntary simply because Blake declared the drug possession statute unconstitutional. The validity of the pleas turns on whether Olsen was inadequately informed of the law and the consequences at the time he pleaded. State v. Lamb, 175 Wn.2d 121, 129, 285 P.3d 27 (2012). Blake does not provide new legal grounds for determining whether he voluntarily and knowingly pleaded guilty to drug possession, a valid crime in 2003 and 2005. Olsen cannot use Blake to circumvent the time bar under RCW 10.73.100(6) and belatedly challenge his guilty pleas.

With that, the WA Supreme Court affirmed the Superior Court’s rulings denial of Olsen’s motions to withdraw guilty pleas and upheld Olsen’s drug conviction.

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.

2024 Brings Massive Reduction in Drug Overdose Deaths

“In the states that have the most rapid data collection systems, we’re seeing declines of twenty percent, thirty percent,” ~Dr. Nabarun Dasgupta, an expert on street drugs at the University of North Carolina.

According to Dasgupta’s analysis, the drop in state-level mortality numbers corresponds with similar steep declines in emergency room visits linked to overdoses. In many states, the sudden drop in drug deaths stunned some observers who lived through the darkest days of the fentanyl overdose crisis.

RAW DATA

  • Deaths in King County, Washington, linked to all drugs have dropped by 15 percent in the first half of 2024. Fatal overdoses caused by street fentanyl have dropped by 20 percent.
  • Overdose deaths in Ohio are down 31 percent. Ohio is now in the ninth consecutive month of a historic and unexpected drop in overdose deaths.
  • Overdose deaths in Missouri have now fallen roughly 34 percent in the second quarter of 2024.

DESPITE THE “GOOD NEWS,” DRUG OVERDOSE DEATHS PERSIST

After years of wrenching drug deaths that seemed all but unstoppable, some researchers, front-line addiction workers, members of law enforcement, and people using street drugs voiced caution about the apparent trend. Roughly 100,000 deaths are still occurring per year. Street drug cocktails including fentanyl, methamphetamines, xylazine and other synthetic chemicals are more poisonous than ever.

But most public health experts and some people living with addiction told NPR they believe catastrophic increases in drug deaths, which began in 2019, have ended, at least for now. Many said a widespread, meaningful shift appears underway.

WHAT INTERRUPTED THE DRUG OVERDOSE DEATH TREND?

  • Many people using fentanyl now carry naloxone, a medication that reverses most opioid overdoses.
  • Rapid improvements in the availability and affordability of medical treatments for fentanyl addiction.
  • More funding for addiction treatment and healthcare services, especially in Black and Native American communities where overdose deaths remain catastrophically high.
  • Fentanyl may be harder to find and less pure in some areas because of law enforcement efforts targeting Mexican drug cartels.
  • The chemical xylazine is also being mixed with fentanyl by drug gangs. While toxic in humans, causing lesions and other serious long-term health problems, xylazine may delay the onset of withdrawal symptoms in some users. Dasgupta said it’s possible that means people are taking fewer potentially lethal doses of fentanyl per day.
  • The end of the COVID pandemic, combined with the high number of people who have already died from drug overdoses.

My opinion? Quite often, drug addiction & homelessness go hand in hand. At times, drug use can temporarily provide a brief reprieve to the challenges of homelessness. For others, the mere stresses of life can make everyday, tax-paying citizens seek drugs and alcohol to self-medicate.

Many people don’t understand why or how other people become addicted to drugs. They may mistakenly think that those who use drugs lack moral principles or willpower and that they could stop their drug use simply by choosing to. In reality, drug addiction is a complex disease, and quitting usually takes more than good intentions or a strong will. Drugs change the brain in ways that make quitting hard, even for those who want to.

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.

Is Today’s Marijuana Too Strong?

Photo Courtesy of Emily Zaboski/Daily Free Press Staff

Excellent article in the Atlantic by Malcolm Ferguson reports that marijuana users are realizing marijuana has become noticeably stronger. A drug they once turned to for fun and relaxation now triggers existential dread and paranoia.

In 2022, the federal government reported that THC — the psychoactive compound in weed that makes you feel high—had more than tripled compared with 25 years earlier, from 5 to 16 percent. That may understate how strong weed has gotten. Walk into any dispensary in the country, legal or not, and you’ll be hard-pressed to find a single product advertising such a low THC level. Most strains claim to be at least 20 to 30 percent THC by weight; concentrated weed products designed for vaping can be labeled as up to 90 percent.

For the average weed smoker who wants to take a few hits without getting absolutely blitzed, this is frustrating. For some, it can be dangerous. In the past few years, reports have swelled of people, especially teens, experiencing short- and long-term “marijuana-induced psychosis.” The consequences include hospitalizations for chronic vomiting and auditory hallucinations of talking birds. Multiple studies have drawn a link between heavy use of high-potency marijuana, in particular. The development of psychological disorders, including schizophrenia, have increased.

WHY HAS MARIJUANA POTENCY INCREASED SO MUCH?

The simplest explanation for this is that the casual smokers  aren’t the industry’s top customers. Serious stoners are. Regular users tend to develop a high tolerance, and their tastes drive the industry’s cultivation decisions. The industry is not shy about this fact.

My opinion?The history of drug enforcement in America was long one of discriminatory, draconian enforcement. But the shift toward legal weed has tacked too far in the opposite direction. If marijuana is to be sold legally, consumers should know what they’re buying and have confidence that someone is making sure it’s safe.

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

Survey: Cannabis and Hallucinogen Use Remains At Historically High Levels

weed-as-a-hallucinogent

Excellent article by CNN reporter , says the use of cannabis and hallucinogens stayed at historically high levels among both younger and middle-age adults in the US in 2023. The data was released from a survey from Monitoring the Future, a study conducted by researchers at the University of Michigan since 1975 and funded by the National Institutes of Health.

THE NUMBERS

The survey showed that about 2 in 5 adults (42%) ages 19 to 30 reported using cannabis in the previous year. Nearly 10% of that group saying they used cannabis nearly every day. And for the first time, more women ages 19 to 30 reported cannabis use than men in the same age group. However, there was a higher prevalence of men using cannabis than women in the older age group. About 29% of midlife adults — people ages 35 to 50 — reported using cannabis at least once in the past year. Nearly 8% reporting using cannabis on a daily basis.

 “On average, a certain number of people in any group that’s a sizable portion are using marijuana on a daily or near-daily basis. And I think that bears watching, and those levels are at a historical high. Although they didn’t increase this year compared to the previous year, they’re still at quite high levels.” ~Dr. Wilson Compton, deputy director of the NIH’s National Institute on Drug Abuse.

CANNABIS VAPING

Cannabis vaping rose slightly among younger adults. Nearly 1 in 5 adults in that age group say they used it at least once in the past year. For midlife adults, about 9% of people in that group admitted vaping cannabis in the past year. Nicotine vaping also stayed high among both groups of adults, according to the report.

HALLUCINOGENS

The study discussed the use of hallucinogens – such as LSD, mescaline, peyote, PC and shrooms or psilocybin. In short, use of these drugs hovered around the same as in 2022, They landed at 9% for adults 19 to 30 (versus 8% the previous year) and 4% for adults 35 to 50 in 2023 and 2022.

“We have seen that people at different stages of adulthood are trending toward use of drugs like cannabis and psychedelics and away from tobacco cigarettes . . . These findings underscore the urgent need for rigorous research on the potential risks and benefits of cannabis and hallucinogens – especially as new products continue to emerge.” ~Dr. Nora Volkow, director of the National Institute on Drug Abuse.

ALCOHOL

The most-used substance among adults is still alcohol. Here, more than 4 in 5 younger adults (84%) reporting drinking in the past year. However, frequent drinking – either monthly, daily or binge drinking – all decreased in 2023 from the decade prior among 19- to 30-year-olds.

CIGARETTES, OPIOIDS & PRESCRIPTION DRUGS

The researchers also noted other decreases in drug use, reflecting a shift in habits. Cigarette smoking and use of opioid medications and prescription drugs for nonmedical reasons “maintained five- and 10-year declines” for both age groups.

n 2023, drug overdose deaths decreased for the first time since 2018, according to preliminary data from the US Centers for Disease Control and Prevention’s National Center for Health Statistics. About 107,500 people died from a drug overdose in 2023, the data showed, driven by fentanyl and synthetic opioids.

While only slight changes were observed compared with the previous year’s Monitoring the Future survey results, the researchers say the results still help inform the bigger picture — especially as the survey respondents age.

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

Kratom: “Gas-Station Heroin” Known For Its Opioid and Stimulant-Like Effects

So-called 'gas station heroin' is easy to find, potentially dangerous to use

Journalist Marquise Francis wrote an excellent article in NBC News discussing Kratom, an herb with opioid and stimulant-like effects. Kratom is sold legally and widely at vape shops, gas stations and convenience stores in liquid, tablet or powder form. It is sometimes referred to as “gas station heroin.” The American Kratom Association, which advocates for consumer access to the substance, says it’s a roughly $1.5 billion-per-year industry.

Kratom contains a chemical compound called mitragynine, which stimulates the same brain receptors as opioids. That is partially why it can become addictive, according to experts. At high concentrations, the substance can cause nausea, seizures, vomiting, difficulty breathing and, in the most extreme cases, death.

Kratom is not regulated as a controlled substance. However, the Drug Enforcement Administration lists it as a “drug of concern.” The FDA has not approved kratom for any purpose, but supplements do not require the agency’s sign-off to be sold.

OVERDOSE DEATHS

Kratom was the cause of 91 overdose deaths from July 2016 to December 2017, according to a report from the Centers for Disease Control and Prevention. But some estimates put the toll far higher: An analysis by The Washington Post found kratom listed as the leading or partial cause of death in at least 4,100 deaths from 2020 to 2022, and an investigation by the Tampa Bay Times last year found that more than 580 people in Florida alone had died from kratom-related overdoses since 2013.

The DEA sought to temporarily reclassify kratom as a schedule 1 substance in 2016, but reversed course following a backlash. So in lieu of federal oversight, a growing number of states and cities have been cracking down on kratom on their own. at least six states — Alabama, Arkansas, Indiana, Rhode Island, Vermont and Wisconsin — have banned kratom entirely.

AN EMERGING ISSUE

In a letter published Monday in the journal Annals of Internal Medicine, a group of researchers called kratom an “emerging issue” and suggested that physicians consider asking patients about their kratom use, the same way they do about cannabis, cocaine, methamphetamines or heroin. The paper suggests that as of 2022, roughly 1.9 million people in the U.S. had used kratom, though the authors suggest that’s an underestimate.

FOUR GROUPS OF KRATOM USERS

Kratom users are classified into four primary groups. The first is people with opioid use disorder who buy kratom either to tide them over until they can get more opiates or as an attempt to wean themselves off even harder stuff. The second is people who say kratom helps them with pain management. The third are users with anxiety, depression or some other mood disorder. The fourth and final group are those who simply enjoy the stimulant effects.

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

Drug Overdose Deaths Beginning to Decline

Image: Reynoldsburg police shared a photo after they found an unconscious male behind the wheel

Photo courtesy of the Reynoldsburg Division Of Police.

Journalist Tanya Lewis wrote an insightful article on why opioid overdoses have fallen since their COVID-19 Pandemic peak. Although more than 100,000 people have died of overdoses every year since 2021 – mostly due to fentanyl – recent data from the CDC suggest that this brutal trend may have crested.

According to the article, overdose deaths have declined slightly overall since last fall, as have overdose deaths from opioids, including fentanyl. However, deaths over the last 12 months remain incredibly high, at more than 102,000, which is still well above prepandemic numbers. From 2017 to 2019, for example, it’s estimated that more than 68,000 people died every year from overdosing. These recent numbers are provisional and may represent an undercount, according to the CDC.

The reasons for the apparent peak in overdose deaths aren’t fully understood, but experts have a few hypotheses.

OVERDOSE DEATHS ARE REVERTING TO THEIR AVERAGE LEVEL FROM BEFORE THE COVID-19 PANDEMIC.

Overdose deaths spiked during the pandemic’s first few years. It’s not clear whether more people started using or whether people were simply dying at higher rates; exact counts aren’t available for the number of people who use illicit drugs such as fentanyl. Stress and social isolation increased during the pandemic, which may have led some people to start using or use more frequently or in riskier ways. Treatment for opioid use disorder was also disrupted, and if a person overdosed, it was less likely that someone would be there to intervene.

INVESTMENT IN TREATMENT AND INTERVENTIONS BRING POSITIVE EFFECTS.

Access to the overdose-reversing drug naloxone (often referred to by the brand name Narcan) has also increased. the drug is now available over the counter. Additionally, the availability of test strips for detecting fentanyl, as well as other types of drug testing equipment, Cerda says, may have also prevented overdose deaths by making it easier for people who use drugs to avoid fentanyl; the synthetic opioid is much stronger than other opioids and can lead to overdoses at much, much lower concentrations.

THE POPULATION OF PEOPLE WHO USED FENTANYL AND WERE AT RISK OF OVERDOSING HAVE SIMPLY DIED OFF. 

The older generation of people who have opioid use disorder is dying. The younger generation sees how deadly the drugs are and may be less inclined to start using them, adds Jay Unick, an assistant professor at the University of Maryland School of Social Work.

REDUCED SUPPLY OF FENTANYL IN SOME PARTS OF THE U.S. 

Most of the illicit fentanyl in the U.S. comes from Mexican cartels, which obtain its precursor chemicals from China and other countries. The U.S. Drug Enforcement Agency has been cracking down on a Mexican cartel called the Sinaloa cartel, which supplies fentanyl to much of the eastern U.S., and this could be leading to a shortage of the drugs.

The national trend belies important regional differences: while most eastern U.S. states saw declines in overdose deaths, many western states have seen increases. The timing of fentanyl’s introduction to these areas could explain the divide, experts say. The eastern half of the U.S.—from the Midwest to Appalachia—was first exposed to the drug around 2014, whereas it didn’t really emerge across the West Coast until 2019.

THE DEMOGRAPHICS HIT HARDEST BY THE U.S. OPIOID EPIDEMIC HAVE SHIFTED.

Fewer white people are now dying of overdoses, whereas Black and Indigenous people are dying at higher rates. The crisis has also been fueled by homelessness and high rates of mental illness, signs of the compounding effects of income inequality.

THE WEST COAST’S INCREASE IN OVERDOSE DEATHS IS LEADING SOEM STATES TO ADOPT TOUGHER STANCES ON VISIBLE DRUG USE.

In a landmark move in 2020 Oregon voted to decriminalize small amounts of certain drugs, including heroin, cocaine and methamphetamine. But in response to public pressure, the state recently rolled back that policy. It is unlikely that decriminalizing drugs in Oregon caused an increase in opioid overdoses. The increases were also seen in California, Washington and numerous other states that did not decriminalize them.

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.

Bellingham Police Department Rejoins the Whatcom County Drug Task Force

Whatcom gang, drug task force investigation leads to two arrests | News | lyndentribune.com

Photo courtesy of WCSO

Bellingham Police staff shall dedicate personnel to resume participation in the Whatcom County Drug Task Force (WCDTF).

For the past four years, the Bellingham Police Department (BPD) has not committed manpower to the WCDTF. That’s because 2021 brought cutbacks in police staff driven by a combination of retirements, COVID, and resignations.  Also, in 2020, Bellingham sidelined its special units.  As a result, it ceased bicycle patrols, the drug task force, gang intervention, outreach, behavioral health, and more. That’s all changed, however, as Bellingham has hired 25 officers in the past two years.

Agency partnerships like the WCDTF employ various strategies. That target, disrupt and dismantle drug trafficking. They also reduce the illegal drug supply, seize assets, and bring alleged criminals to justice.

On June 3, the Bellingham City Council voted to recognize opioid drugs like fentanyl as a massive threat to our health, safety and general welfare. They believe that participating in a countywide task force is important because a large number of drug cases are focused on Bellingham.

WCDTF members include police departments in Blaine, Everson, Ferndale, Lynden and Sumas; the U.S. Border Patrol; U.S. Drug Enforcement Administration; and the Washington State Patrol. It’s run by an executive board that includes the Whatcom County sheriff and the chiefs of the Ferndale and Bellingham police departments and the Whatcom County prosecuting attorney.

Since that time, the department has been staffing only their patrol and investigations divisions, the two units that are key to answering 911 calls and solving serious crime.

Bellingham had 128 police officer positions in 2023-24 budget — up from 122 in the previous two-year cycle.

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.

Travelers Who Are More Likely To Get Stopped By TSA

'Safe-list' travelers get fast track through airport security | CNN Business

Excellent article from journalist Erika Mailman gives advice on how not to draw a TSA agent’s attention when travelling by airplane.

AGGRESSIVE BEHAVIOR

The first thing that raises a red flag is aggressive behavior. Even if you’re justifiably upset about a canceled or delayed flight, you need to keep your cool and remain courteous. Tamp down that anger, or you might get a little more attention than you bargained for.

OVERLY FRIENDLY

On the other side of the coin, overly friendly passengers draw the TSA agent’s eye. No need to make small talk—this person is not your friend. And if you’re too chatty with the agent, you may appear to be trying to disarm them. It’s best to just be polite and neutral.

NERVOUS

Another sign that the agent looks for? People who act nervous. You might be a nervous flyer or filled with anxiety about other aspects of your trip. So, while you’re going through the checkpoint, try to avoid the indications of being aflutter: clearing your throat a lot, being pale or shaky, or being wide-eyed. How can you quell those signs? Try to meditate or visualize a pleasant space in your life that makes you feel calm.

AVOIDING EYE CONTACT

Avoiding eye contact is another telltale sign. Don’t be shifty-eyed; look at the agent directly when he or she is talking to you.

BAGGY CLOTHING

Believe it or not, baggy clothing can make an agent take a second look, because they may wonder if something is being concealed under those folds of fabric. That could inspire them to request a pat-down. Your clothes can also be a red flag if they are out of season. No, we don’t mean that you’re wearing last season’s runway; we mean that you’re wearing a parka in summertime. It could make the agent think a weapon’s hidden under all that goose down.

INTOXICATION

Another thing that makes you appear suspicious is being drunk (and, relatedly, unruly). The time you spend cocktailing in the airport bar may actually cause an agent to request a blood alcohol test…and if you don’t pass, you could be denied boarding. And even if you aren’t found to be tipsy or loaded, you might have drawn unwanted attention from TSA.

CARRYING LOTS OF CASH

If you are carrying a lot of cash, especially if it’s in different denominations, you could be seen as a potential trafficker. It’s best to convert your money back to American dollars before heading to the airport.

MISCELLANEOUS

The list of suspicious behaviors and appearances continues. They include transporting electronic and electrical items such as curling irons, having an intricate hairdo with pins and clips, bringing battery packs (those go in carry-on luggage only and can’t be in checked bags), trying to get by with larger liquid containers than the allowed 3.4 ounces, and talking about bombs and guns while in line. It may surprise you to know that you can be arrested for joking about bombs while in the TSA line. The best advice is to be chill, don’t talk other than when directly addressed, and follow all the rules to a tee.

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

Going Pro-Se: Should You Represent Yourself In Court?

Is the law library a thing of the past for law firms?

Image from Shutterstock.

In State v. Gwin, the WA Court of Appeals decided an interesting case of a defendant who wanted to represent himself pro se.

BACKGROUND FACTS

Mr. Gwin was charged with unlawful possession of a firearm in the first degree, felony harassment, and possession of heroin with intent to deliver. At trial, Mr. Gwin exercised his right to self-representation. The court conducted a colloquy and determined that Gwin knowingly, intelligently, and voluntarily waived his right to counsel. The court granted Gwin’s motion to represent himself, and Gwin completed a waiver of counsel. However, the trial court denied his request for standby counsel, citing its blanket policy to deny such requests.

Gwin opted for a bench trial, waiving his right to a jury. The court found Gwin guilty of unlawful possession of a firearm in the first degree and felony harassment. Gwin was acquitted of possession of heroin with intent to deliver. On appeal, Gwin argued the court’s categorical denial of his request for standby counsel violated his right to represent himself under Washington Constitution article I, section 22.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying the Sixth and Fourteenth Amendments of the United States Constitution afford a criminal defendant both the right to (1) assistance of counsel and the right to (2) reject that assistance and to represent himself. While both are guaranteed, the right to proceed pro se and the right to assistance of counsel are mutually exclusive.

“Self-representation is a grave undertaking, one not to be encouraged. Its consequences, which often work to the defendant’s detriment, must nevertheless be borne by the defendant . . . The federal right to self-representation does not include a right to standby counsel or hybrid representation.” ~WA Court of Appeals

The COA addressed Mr. Gwin’s argument that the trial court’s refusal to appoint standby counsel violated his rights.

Because there is no constitutional right to standby counsel, the court’s failure to consider Gwin’s request is not of constitutional magnitude and is subject to analysis under the nonconstitutional harmless error standard. Under this nonconstitutional harmless error standard, ‘an accused cannot avail himself of error as a ground for reversal unless it has been prejudicial An error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.

From there, the COA made a very clear record of Mr. Gwin’s self-representation and largely disagreed with his arguments:

“While standby counsel may have improved contact with defense witnesses and led to more success in impeaching State witnesses, Gwin has not demonstrated that the outcome of the trial would have been materially affected. Thus, the trial court’s failure to meaningfully consider Gwin’s request for standby counsel was harmless error.” ~WA Court of Appeals.

With that, the COA upheld his convictions.

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.