Category Archives: Due Process

Disruptive Defendants

Irate Florida man Alan McCarty found guilty of threatening to kill ...

In State v. Davis, the WA Supreme Court upheld a trial judge’s findings that a pro se defendant was disruptive in court and waived his right to be present at trial.

BACKGROUND FACTS

In March 2014, the State charged Davis with two counts of possessing a stolen vehicle and one count of possession of a controlled substance. He waived his right to counsel. The court found Davis knowingly and voluntarily waived his right to counsel, and he proceeded pro se.

Mr. Davis’s path toward trial was rocky. He was incarcerated while the charges were pending. He also had troubles communicating with his investigator, and his motions to continue his case were denied.

At the CrR 3.5 hearing, Davis again sought a continuance and attempted to withdraw as his own counsel. The judge denied both motions. In response, Davis became irate. He screamed that he wanted a new judge. The court warned Davis that outbursts and disruptions would lead to his removal. Davis said, “You can remove me now. What have we been doing here? I don’t even want to be here. So remove me. I don’t care. I told you that. You can hold your trial without me.”

Trial proceeded. Davis returned to court and represented himself without significant incident until the State commenced its case in chief. He took numerous bathroom breaks throughout the day. At one point, however, Mr. Davis returned to the courtroom and discovered his water was removed by court staff.

Again, Mr. Davis He grew irate. He began a tirade of expletives, pounding on the table with his fists, and yelling at an extremely loud volume, at one point screaming “F**k you!”  to the judge. Davis was warned that he would be removed from the courtroom if he was going to continue to raise his voice and curse. The State attempted to proceed with questioning witnesses, but Davis refused to cease his outbursts. The judge temporarily cleared the jury.

Davis repeatedly said, “You can hold your trial without me,” and the court replied, “I’m going to do that.” Davis went as far as to remark, “Thank you. Thank you. Just go ahead with your kangaroo court . . . . I’m done with it.” During this exchange, Davis shouted at the top of his lungs, swearing, and apparently moved to exit the courtroom. The judge stopped Davis in order to make an oral ruling. She found that Davis was voluntarily absenting himself from the proceedings, noting that Davis intentionally drank more water in order to delay trial with bathroom breaks, often during critical portions of witness testimony.

After Davis left the courtroom, the jury returned and the State resumed its direct examination. The State questioned officers involved in Davis’s arrest, asking about the cocaine discovered in his possession and his voluntary statements given after arrest. Davis was not present to cross-examine either witness. He was absent for approximately 50 minutes of trial.

The following day, Davis returned. The court warned him that any profanity or disruptions would result in his removal. Davis agreed, though he continued to interrupt and ask for standby counsel, which the court denied. Despite Davis’s combative behavior, the trial proceeded with Davis present. Davis was convicted on all counts.

Davis appealed. The Court of Appeals reversed Davis’s convictions. The State appealed to the WA Supreme Court.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court began by saying The Sixth Amendment and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, as well as the Washington state constitution, guarantee the right of the criminal defendant to be present at his or her own trial.

However, the Court also said that the United States Supreme Court and this court have held that a defendant’s persistent, disruptive conduct can constitute a voluntary waiver of the right to be present.

The Court turned to State v. Garza and State v. Thomson as guidance. These cases give the test necessary to answer the primary question of whether Davis waived his right to be present. In short, the crucial test established in these cases was whether the defendant’s absence was voluntary.

“In this case, the trial court did not abuse its discretion in finding that Davis waived his right to be present,” said the WA Supreme Court. “The record shows that Davis wanted to leave the courtroom and the trial judge accommodated him. Davis asked and later yelled, repeatedly, that he did not ‘even want to be here. So remove me. I don’t care. I told you that. You can hold your trial without me.’ The court then reminded Davis that he had another of the State’s witnesses to cross-examine, but Davis stated again that he was done.”

Furthermore, the court said the trial court properly exercised its discretion when it permitted a contumacious and stubbornly defiant defendant who insisted on leaving the courtroom to absent himself from the proceedings. It emphasized that maintaining order in the courtroom is within the discretion of the trial judge, and the judge properly exercised it here.

“Davis repeatedly stated that he did not want to be in court, that he was done, and that he wished to leave. Coupled with his disruptive outbursts that culminated in an abusive shouting match with the trial court, Davis obtained what he consistently told the court he wanted: leaving the proceedings. We hold that Davis waived his right to be present at trial.”

Accordingly, the WA Supreme Court reversed the Court of Appeals, affirmed the trial court’s
ruling on voluntary absence and upheld Mr. Davis’s criminal convictions.

Please contact my office if you, a friend or family member face criminal charges. It’s never a good idea to represent yourself at criminal jury trials. Hiring an attorney is the first and best step toward justice.

State-Created Danger Doctrine and Domestic Violence Victims

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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. The Court held that the State-Created Danger Doctrine applies when an officer reveals a domestic violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity. Consequently, the police officers breached Due Process by intensifying the victim’s 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 charges relating to domestic violence allegations.

38-Year Delay Violates Speedy Trial

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In State v. Ross, the WA Court of Appeals held that a criminal defendant’s constitutional speedy trial rights were violated by a 38-year gap between charging and the defendant’s first appearance in the trial court on the murder charges.

BACKGROUND FACTS

Here, the State charged Tommy Ross in Clallam County with aggravated first degree murder in 1978. But the State did not pursue prosecution of that charge for over 38 years. Instead, the State allowed Ross to be extradited to Canada for trial on another murder charge without ensuring that he would be returned for trial in Clallam County.

And then while Ross was incarcerated in Canada the State made no meaningful effort for decades to obtain his return to the United States for trial. The trial court ruled that the State violated Ross’s constitutional right to a speedy trial by not prosecuting the murder charge against him for over 38 years, and the court dismissed that charge. The State appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the analysis for the speedy trial right under article I, section 22 of the WA Constitution is substantially the same as the analysis under the Sixth Amendment of the U.S. Constitution.

The Court of Appeals used the balancing analysis stated in Barker v. Wingo to determine whether the defendant’s constitutional right to speedy trial was violated. Among the nonexclusive factors we consider are the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

Length of Delay.

Here, the Court ruled that the The 38-year delay here was extraordinary and significant to the speedy trial analysis. Consequently, the length of delay factor weighs heavily against the State.

Reason for Delay.

The court explained that the “reason for delay” factor focuses on whether the government or the criminal defendant is more to blame for the delay. A court looks to each party’s responsibility for the delay, and different weights are assigned to delay, primarily related to blameworthiness and the impact of the delay on defendant’s right to a fair trial.

“The State’s deliberate delays will be weighed heavily against it, but even negligence that causes delay will be weighed against the State,” said the Court. Consequently, the Court reasoned that the Prosecutor’s decision to release Ross to Canada without obtaining an enforceable agreement to return him to Clallam County was negligent and weighs against the State.

State Failing to Request Extradition.

The Court reiterated the general rule that when a defendant is incarcerated outside of the country, the State has a constitutional obligation for speedy trial purposes to make a good faith, diligent effort to secure his or her return to the United States for trial. Here, the State’s failure after 1980 to seek extradition or even inquire about obtaining Ross’s transfer to Clallam County weighs against the State.

Assertion of Speedy Trial Right.

The court explained that during the time he was incarcerated in Canada, Mr. Ross made no effort to facilitate a trial on the murder charge. He never demanded that the State bring him to trial or that the State figure out a way to remove him to the United States. He did not waive extradition or request that Canada transfer him to Clallam County for trial. And when given opportunities to return to the United States and face the murder charge, Ross declined and decided to remain in Canada. This conduct is inconsistent with an assertion of the right to a speedy trial.

“Based on Ross’s failure to assert his speedy trial right while incarcerated in Canada, we conclude that the assertion of the right factor weighs against Ross even though his failure is mitigated to some extent,” said the Court.

Prejudice from Delay.

The Court of Appeals reasoned that prejudice to the defendant as a result of delay may consist of (1) oppressive pretrial incarceration, (2) the defendant’s anxiety and concern, and (3) the possibility that dimming memories and loss of exculpatory evidence will impair the defense.

In general, a defendant must show actual prejudice to establish a speedy trial right violation. However, prejudice will be presumed when the delay results from the State’s negligence and there has been “extraordinary delay.”

“Courts generally have presumed prejudice in cases where the delay has lasted at least five years,” said the Court, citing  State v. Ollivier. The Court also cited Doggett v. U.S., a case where the U.S. Supreme Court presumed prejudice against the defendant when the State’s inexcusable oversights caused a delay of six years.

“Applying the four-part balancing analysis set out in Barker, we also conclude that the extraordinary delay in prosecuting Ross violated his speedy trial right. Accordingly, we are constrained to affirm the trial court’s dismissal of the murder charges against Ross.”

In addition, the Court of Appeals found the 38-year length of the delay significant, as was the very strong presumption of prejudice resulting from that lengthy delay. “Considering all the Barker factors, we are constrained to conclude that the balancing test weighs against the State,” said the Court. “Accordingly, we hold that the State violated Ross’s speedy trial right under the United States and Washington Constitutions. Dismissal of the charges against the accused is the only possible remedy for a violation of the constitutional right to a speedy trial.”

Please contact my office if you, a friend or family member face criminal charges and there’s question whether the defendant’s right to a speedy trial were violated. Washington Court rule CrRLJ 3.3(b)(2) states that a defendant must be brought to trial within 60 days of arraignment if he is detained in jail and within 90 days if he is not. The purpose o f this rule is to provide a prompt trial for the defendant once they are prosecuted. Under the rule, a charge not brought to trial within the time limit will usually be dismissed with prejudice unless the defendant requests continuances.

 

Shackled in Court

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In State v. Lundstrom, the WA Court of Appeals held that a trial court’s failure to state why a jailed defendant must wear shackles, handcuffs and other restraints to court violates a defendant’s due process rights.

BACKGROUND FACTS

The State charged Lundstrom with two counts of unlawful possession of a controlled
substance. At a pretrial hearing, Lundstrom appeared in restraints. Before the proceeding ended, defense counsel took exception to Mr. Lundstrom appearing in court with 5-point restraint shackles.

The trial court did not respond to defense counsel’s statement or concerns.

Lundstrom subsequently filed a motion objecting to the restraints and requesting removal of the shackles. The motion included a certified statement from defense counsel, which stated that he had made a public disclosure request with the Clallam County Sheriff’s Office (CCSO) for their policies and discovered that CCSO policy 15.106.1 required all inmates to be brought to court in full restraints (waist chain, cuffs, and leg irons) for their first appearance. There is no record showing whether Lundstrom noted the motion for hearing before the trial court, whether the trial court held a hearing on the motion, or whether the trial court ruled on the motion. Ultimately, however, Lundstrom pleaded guilty to two counts of unlawful possession of a controlled substance.

On appeal, Lundstrom argued that his pretrial restraint violated his due process rights because the trial court failed to make an individualized determination on the necessity of the restraints.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals agreed with Mr. Lundstrom.

It reasoned that under the  WA Constitution, the accused shall have the right to appear and defend in person. That right includes the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

Additionally, under State v. Damon, the Washington Supreme Court has long recognized that a prisoner is entitled to be brought into the presence of the court free from restraints.

“Restraints are disfavored because they may interfere with important constitutional rights, including the presumption of innocence, privilege of testifying in one’s own behalf, and right to consult with counsel during trial.”

“But a defendant’s right to be in court free from restraints is not limitless,” said the Court of Appeals. “The right may yield to courtroom safety, security, and decorum. A defendant may be restrained if necessary to prevent injury, disorderly conduct, or escape.”

Furthermore, the trial court abused its discretion and committed constitutional error when it failed to address the issue of Lundstrom’s pretrial restraint. By failing to do so and allowing Lundstrom to be restrained, the trial court failed to exercise its discretion and effectively deferred the decision to the jail’s policy. As a result, the trial court abused its discretion and committed constitutional error by failing to make an individualized inquiry into the necessity for pretrial restraints when Lundstrom took exception to the use of pretrial restraints. Therefore, Lundstrom’s due process rights were violated by his pretrial restraints.

Interestingly, Lundstrom was not trying to overturn his conviction or seek any other remedy due to the violation of his due process rights. He only wanted the Court of Appeals to address his claim as a matter of continuing and substantial public interest.

“Generally, we do not consider claims that are moot or present only abstract questions,” said the Court of Appeals. However, we have the discretion to decide an issue if the question is one of continuing and substantial public interest.”

My opinion? Good decision. It’s harsh to see defendants in handcuffs and chains. Indeed, it’s unconstitutional. And for the most part, shackling defendants at court hearings is unnecessary unless there’s reason to believe the defendant may escape or harm others.

Please contact my office if you, a friend or family member face criminal charges.

Jail Mail

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In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

BACKGROUND FACTS

In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005: one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of a robbery and bludgeoning death.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided  the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided  that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the  jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.

Border Patrol Backs Trump

Brandon Judd, the president of the National Border Patrol Council, told "Fox and Friends" on July 17, 2017, that morale is the highest he's seen throughout his 20 years within the agency. (Fox News Channel screenshot)

According to a news article by reporter Douglass Ernst of the Washington Times, President Trump received a glowing performance review Monday from the head of the National Border Patrol Council.

Brandon Judd, who is the President of the National Border Patrol Council, appeared on “Fox and Friends” on Monday to discuss illegal immigration, Mr. Trump’s plan to build a border wall with Mexico, and morale within the agency. The union president said that agents have a new “energy” to them due to a concrete commitment to enforcing existing federal laws.

“There’s a vibe, there’s an energy in the Border Patrol that’s never been there before,” Mr. Judd told host Steve Doocy. “In the 20 years I’ve been in the patrol, we haven’t seen this type of energy, and we’re excited because we signed up to do a job and this president is allowing us to do that job.”

Mr. Judd said that having a giant contiguous wall along the southern border was not as important as having barricades at “strategic locations” such as El Paso and San Diego.

“The president has done a great job of actually enforcing the law — something we didn’t see in the last eight years,” Mr. Judd said, Fox News Channel reported. “And if we continue to do that, then a clear message will be sent throughout the world that if you cross our borders illegally, you will be detained and you will be sent back.

“If you look at the rhetoric that the president sent out, we’ve had a drop that we’ve never seen before with any president,” he continued. “If you’re in the left, right or middle, you have to say this president has done exactly what he promised to do and we do have border security like what we expect to see.”

My opinion? Let’s observe how these ongoing immigration issues develop. Last month,  the U.S. Supreme Court Supreme Court had a ruling which allowed parts of President Donald Trump’s travel ban to go into effect and will hear oral arguments on the case this fall. In its decision, the court is allowing the ban to go into effect for foreign nationals who lack any “bona fide relationship with any person or entity in the United States.” The court, in an unsigned opinion, left the travel ban against citizens of six majority-Muslim on hold as applied to non-citizens with relationships with persons or entities in the United States, which includes most of the plaintiffs in both cases.

Juror Misconduct

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In Godoy v. Spearman, the Ninth Circuit Court of Appeals overturned a murder conviction because a juror inappropriately communicated with a “judge friend” about the case during deliberations.

BACKGROUND FACTS

Enrique Godoy was convicted of second-degree murder by a Los Angeles County Superior Court jury. A week before his June 12, 2006 sentencing, he moved for a new trial alleging that Juror 10 had improperly communicated about the case with a “judge friend” during deliberations. To substantiate his allegations, Godoy brought brought alternate juror “E.M.” to his sentencing hearing. The trial court continued Godoy’s sentencing to a future court date. Later, Godoy sent the Prosecutor a declaration about Juror 10’s misconduct from alternate juror N.L., who wrote the following:

“During the course of the trial, juror number ten kept continuous communication with a gentleman up north, who she referred to as her “judge friend.” Juror number ten explained to us, the jury as a whole, that she had a friend that was a judge up north. From the time of jury selection until the time of verdict, juror number ten would communicate with her “judge friend” about the case via her TMobile Blackberry, a two way text paging system. When the jury was not sure what was going on or what procedurally would happen next, juror number ten would communicate with her friend and disclose to the jury what he said.”

Despite this “smoking gun” declaration, the trial court nevertheless sentenced Godoy to 16 years’ to life imprisonment. Godoy appealed his conviction to the California Court of Appeal, arguing the trial court erred by (1) refusing to presume Juror 10’s communications prejudiced the verdict and (2) refusing to hold an evidentiary hearing on the alleged misconduct. However, the California Court of Appeal rejected both of these arguments on the merits and affirmed Godoy’s conviction. Gody again appealed, this time going to the Ninth Circuit Court of Appeals.

COURT’S ANALYSIS AND CONCLUSION

This Ninth Circuit’s opinion began with the following:

“One of the most fundamental rights in our system of criminal justice is the right to trial before an impartial jury. Its common law origin can be traced back to the Middle Ages. It was enshrined in the Sixth Amendment to the Constitution, and it has been embraced by the Supreme Court in numerous cases . . .”

Against this backdrop, the Ninth Circuit held that the California Court of Appeal decision violated the clearly established Supreme Court law that governs this case. It reasoned that under Mattox v. United States, due process does not tolerate any ground of suspicion that the administration of justice has been interfered with by external influence.

“Thus, when faced with allegations of improper contact between a juror and an outside party, courts apply a settled two-step framework,” said the Ninth Circuit. At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a tendency to be injurious to the defendant. If so, the contact is deemed presumptively prejudicial and the court proceeds to step two, where the burden rests heavily upon the State to establish the contact was, in fact, harmless. If the State does not show harmlessness – or in other words, if the defendant was, in fact, harmed by the juror’s contact with an outside party – then the court must grant the defendant a new trial.  However, when the prejudicial effect of the contact is unclear, then the trial court must hold a hearing to determine the circumstances of the contact, the impact thereof upon the juror, and whether or not it was prejudicial.

“Here, the California Court of Appeal failed to adhere to this framework in three key respects,” said the Ninth Circuit. First, although the State court correctly acknowledged at step one that N.L.’s declaration raised a presumption of prejudice, it never required the State to rebut that presumption at step two. It concluded instead that the presumption was rebutted because Godoy’s evidence failed to prove prejudice.” The Ninth Circuit further reasoned that under Mattox and Remmer, however, Mr. Godoy was not required to prove prejudice at step two. Once he triggered the presumption, the burden rested heavily upon the State to disprove prejudice. “Thus, in denying relief because Godoy’s evidence did not prove prejudice at step two, the State court acted contrary to well established law,” reasoned the Ninth Circuit.

Second, the California Court of Appeal decision to set aside the State court’s failure to hold the State to its burden was error. In other words, it was wrong for the California Court of Appeal to rely on the very same statement from N.L.’s declaration both to raise the presumption of prejudice and to rebut it.  “This defies not only logic, but also the clearly established definition of a ‘presumption,’” reasoned the Ninth Circuit.

Third, the California Court of Appeal denied Godoy a hearing on prejudice under the wrong legal rule. It held he had to show a “strong possibility” of prejudice, but Remmer requires a hearing whenever, as here, the presumption attaches but the prejudicial effect of the contact is unclear from the record. “Because the state court’s decision contravened these bedrock principles, it was contrary to clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1),” reasoned the Ninth Circuit.

The Ninth Circuit concluded that because Godoy showed the presumption of prejudice, he was entitled to the evidentiary hearing that he never had to begin with. With that, the Ninth Circuit reversed the judgment of the lower court and remanded the case back with instructions to hold an evidentiary hearing to determine the circumstances of Juror 10’s misconduct, the impact thereof upon the jury, and whether or not it was prejudicial.

My opinion? There’s a lot to be learned from this case. First, in all of my trials I admit a jury instruction prohibiting the jurors from accessing the internet and/or their smartphone devices. Jurors must rely on the evidence and the law and not be guided by outside influences. Second, I try and discuss the case with jurors immediately after they render verdicts. These conversations are very helpful teaching moments because jurors reveal what swayed their decisions. Also – and important to the defense of my clients – jurors may reveal whether their fellow jurors committed misconducts  similar to the type described in this case.

Good decision. And kudos to the defense attorney who discovered the juror misconduct. Although my heart goes out to the friends and family of the murder victim, justice is not served when our courts fail to administer their obligation to give defendants a fair trial.

Downtown Bellingham’s Loitering Problem: What’s the Answer?

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Excellent article by Kie Relyea of the Bellingham Herald discusses the problem of increased loitering in downtown Bellingham.

According to Relyea, downtown business owners are telling city leaders they need help. They’re tired of people sleeping in the doorways of their buildings, lighting fires in their alcoves, and having to clean up after those who leave behind stolen bicycles, trash, feces and drug paraphernalia such as used needles.

That, and a rise in antisocial behavior and unseemly loitering, is making some people who visit and work in downtown Bellingham feel unsafe.

Relyea reports that Bellingham residents reported feeling less safe when walking alone downtown during the day and night than previously, according to a recent survey of residents’ views about issues facing the community. The March 12 deadly shooting in downtown also raised a great deal of concern about safety downtown.

THE STATISTICS

According to Relyea, Bellingham Police Department statistics showed a nearly 2.5 percent increase in overall incidents from 2013 and 2016 in downtown – going from 3,688 to 3,778 responses that were both criminal and non-criminal in nature. For 2016 alone, 53 percent of the incidents police responded to in the downtown were non-criminal in nature.

Criminal incidents would be arrestable offenses such as assaults, robbery and rape. Non-criminal could include responding to people with mental problems, someone violating the sitting and lying ordinance, or someone who was drunk.

 

SOLUTIONS

Relyea reports that business owners want to help those who want to be helped. This means opening a bigger shelter for the homeless, getting them into housing, finding them jobs and helping people struggling with mental health and addiction.

Bellingham Mayor Kelli Linville said prevention was important to her, and the city spends up to $450,000 a year toward such efforts, including for the Homeless Outreach Team, community paramedic and intensive case management.

An upcoming project called Whatcom GRACE (for Ground-Level Response and Coordinated Engagement) also could help, by reaching out to those being called “familiar faces” – people who tend to fall through the cracks over and over, and who have a number of needs such as housing, behavioral health and substance abuse. They’re also the ones who come into contact with a number of organizations.

Apparently, police believe it’s a safety issue to not have people blocking sidewalks where there are pedestrians. However, the ACLU and homeless advocates said such laws target people who are visibly poor and homeless, and could be unconstitutional.

Bellingham Council member Michael Lilliquist gave his perspective:

“For some people, including myself, restricting and limiting people from sitting down is not a well-aimed tool. For one thing, sitting down is sometimes a perfectly fine and normal thing to do. In addition, our police tell me it is difficult to enforce and easy to avoid,” he said.

“For example, people can move just a little distance, such as where the alleyway or a driveway cuts through, and then they are technically not in violation because it is not a ‘sidewalk’ under the definition,” Lilliquist added. “It seems like a lot of work, and some hostility, to get at something that is not the heart of the problem.”

My opinion?

First, don’t criminalize homelessness. That’s not the answer, and only leads to violating people’s constitutional rights. Second, if anything, divert more resources to addressing mental health and substance abuse.

Pretrial Publicity & Change of Venue

Image result for biased jury

In State v. Munzanreder, the WA Court of Appeals held that the jury selection process used by the trial court – which included a written questionnaire with a number of questions regarding exposure to media reports and questioning each juror individually about media exposure – protected the defendant’s constitutional rights to an impartial venue. Therefore, the trial court did not abuse its discretion when it denied the motion to change venue.

BACKGROUND FACTS

John J. Munzanreder appealed his conviction for the first degree murder of his wife. Because of the sensational nature of the alleged crime, local media extensively covered his case from arrest through trial.

Munzanreder worked with Juan Ibanez at Valley Ford in Yakima, Washington. In
early February 2013, Ibanez approached Munzanreder and asked him for money for a
toolbox. Munzanreder agreed to give him the money ifhe helped get rid of somebody.
Munzanreder told Ibanez that he wanted help killing his wife, Cynthia, and would give
him $20,000. Ibanez said he would help, but he would not kill her.

Munzanreder gave Ibanez cash and directed him to purchase a gun. Munzanreder
told Ibanez his plan: Munzanreder and his wife would go the movies, he would shoot her
with the new gun, he would then throw the gun to Ibanez in some nearby bushes, and
Ibanez would run away with the gun.

On February 28, 2013, the Munzanreders went to see a movie at the Majestic
Theater in Union Gap, Washington, a small city immediately south of Yakima. Ibanez received a prearranged text message from Munzanreder that the plan would be executed
and went to the theater and waited in the bushes adjacent to the theater’s parking lot.

After the movie, as the couple approached their car, Munzanreder shot his wife with the
gun purchased by Ibanez. Munzanreder then threw the gun into the bushes where Ibanez
waited. As Ibanez left the scene with the gun, he ran past a couple near his car.

Law enforcement arrived and questioned witnesses. Munzanreder told law
enforcement he heard a shot and saw a man in black clothes running away. Munzanreder
said he had followed the man, but fell and injured himself, developing a black eye.

Munzanreder’s wife later died from her injuries.

Law enforcement continued to investigate. They interviewed Ibanez, whose car
had been reported at the crime scene. Ibanez quickly confessed and told law enforcement
of the details of the crime. Media coverage of both the murder and the arrests quickly
saturated Yakima County.

Munzanreder was charged with Murder in the First Degree. The State also sought a Deadly Weapon Enhancement because the crime occurred with a handgun.

The Jury Questionnairre

Defense counsel and the State had worked together to create an agreed juror
questionnaire. The purpose of the questionnaire was to uncover juror bias, so that the
trial court and the parties could individually interview venire jurors with possible bias in
open court but outside the presence of other venire jurors.

The questionnaire contained many questions, including questions focusing on
pretrial publicity about the case. Those questions asked the venire jurors to list media
sources they used, whether they generally believed the media, whether they thought the
media was fair to both sides of a case, and what criminal cases they followed in the
media. It also specifically asked about Munzanreder’s case. The questionnaire asked
venire jurors if they knew information about the case from any sources, and concluded the
section by asking if they had formed any opinions about the case. The questionnaire also
asked venire jurors if they wanted to discuss their answers separately from other jurors.

The completed questionnaires revealed that 105 of the remaining 128 venire jurors knew
about the case; of these 105, 24 had formed opinions; and of these 24, most believed
Munzanreder was guilty.

Before the remaining venire panel returned to the courtroom, Munzanreder orally
moved for a change of venue. The motion was anticipated because Munzanreder had
earlier said he would make such a motion, and had provided the trial court and the State
with copies of local media stories and media Facebook posts.

The State, although opposing Munzanreder’s motion, indicated the trial court might give additional peremptory challenges. Munzanreder responded that he might ask for additional peremptory challenges, but would not do so until after the court ruled on his motion. The trial court took the motion under advisement and said it would make its ruling later in the jury selection process.

The parties completed voir dire and then went through the process of selecting the
Jury. The trial court permitted each party 6 peremptory challenges for the first 12 jurors,
and 1 additional peremptory challenge for each of the 3 alternate jurors. Munzanreder
never asked for additional peremptory challenges.

The panel was sworn in. The trial court provided the panel various preliminary
instructions and then excused them for lunch. With the panel excused, the trial court gave
its oral ruling denying Munzanreder’s motion to change venue.

Over the next several days, the parties presented their evidence.

The jury returned a guilty verdict on 1st degree murder with a firearm
enhancement. The trial court sentenced Munzanreder to 340 months of incarceration.

Munzanreder timely appealed. His principal arguments on appeal are the trial court abused its discretion when it denied his motion to change venue, and the voir dire process used by the trial court failed to protect his constitutional right to an impartial jury.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court applied a Gunwall analysis to determine if the Washington Constitution provides greater protection than the United States Constitution in a particular context.  A Gunwall analysis must be performed, if litigants want the court to consider whether a parallel constitutional provision affords differing protections.

Here, the Court found that Munzanreder’s state constitutional right to an impartial jury should be interpreted as providing the same degree of protection as the parallel federal constitutional right. The Court similarly held that article I, section 22 of the WA Constitution’s right to an impartial jury does not provide any more protection than the Sixth Amendment.

Second, the Court of Appeals raised and dismissed Munzanreder’s arguments that the voir dire process employed in his case was insufficient. It reasoned that under Lopez-Stayer v.
Pitts, a trial court has considerable discretion in conducting voir dire. Abuse of discretion occurs when a trial court bases its decision on untenable grounds or untenable reasons.

Here,  the Court of Appeals discussed how extensive and meticulous jury selection was in this case. The trial court summoned 243 potential jurors. The parties worked together to craft an extensive juror questionnaire that satisfied the State, Munzanreder, and the trial court. The trial court granted several dozen individual interviews in open court outside the presence of other venire jurors. The trial court was fully involved with the process, and asked questions designed to expose bias and to ensure that jurors would reach a verdict based on the evidence presented at trial and on the court’s instructions on the law. Jury selection took over four days. Munzanreder did not request additional peremptory challenges, despite knowing he had that option. Munzanreder simply asserts now that the process was insufficient, although he was heavily involved at trial in developing the process used. Ultimately, the Court of Appeals decided that because Munzanreder does not show an abuse of discretion, his appeal on this issue fails.

Third, the Court of Appeals raised and dismissed Munzanreder’s arguments that the jury selection process used by the trial court was constitutionally deficient. He attempts to punctuate his point by showing that four biased jurors were empaneled. The Court reasoned that A party may challenge a juror for cause under CrR 6.4(c); and RCW 4.44.170. The trial court is in the best position to determine whether a juror can be fair and impartial because the trial court is able to observe the juror’s demeanor and evaluate the juror’s answers to determine whether the juror would be fair and impartial. For this reason, this court reviews a trial court’s denial of a challenge for cause for a manifest abuse of discretion.

Here, the Court of Appeals found no manifest abuse of discretion. Munzanreder failed to use his peremptory challenges to remove juror #51, a potentially bad and unbiased juror. He also elected not to request additional peremptory challenges. If the trial court erred in denying Munzanreder’ s for cause challenge of venire juror 51, because Munzanreder elected not to remove venire juror #51 with his allotted peremptory challenges or by requesting additional challenges, Munzanreder waived that error.

Fourth, the Court of Appeals raised and dismissed Munzanreder’s arguments that the trial court abused its discretion when it denied his motion for a change of venue. He primarily argues the pretrial media publicity was overwhelmingly inflammatory, which prejudiced the jury pool against him. The Court reasoned that in order to prevail on a change of venue motion, the defendant need only show a probability of unfairness or prejudice. Sheppard v. MaxwellState v. Rupe. The following nonexclusive factors aid our review of whether a trial court abused its discretion in denying a change of venue motion:

(I) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.”

Here, the Court of Appeals reasoned that although the initial venire pool provided substantial challenges because of the trial court’s careful process for selecting a jury, it was highly confident that 11 of the 12 empaneled jurors were impartial.

“If venire juror #51 was biased, Munzanreder had the opportunity to remove him,” said the Court. “Munzanreder elected not to use any of his peremptory challenges to remove venire juror 51, and he did not request additional peremptory challenges. These two facts strongly suggest that even Munzanreder believed the empaneled jury was fair and impartial.” With that, the Court of Appeals concluded the trial court did not abuse its discretion when it denied Munzanreder’s motion to change venue.

Consequently, the Court of Appeals confirmed Munzanreder’s conviction.

Seattle Allows Filming Cops

 

Image result for record the police

Great article in the Seattle Times by Daniel Beekman discusses how Seattle’s City Council voted Monday to enshrine in the Seattle Municipal Code the rights of the public to observe, record and criticize police activity without fear of retaliation.

 The only exceptions are when an observer hinders, delays or compromises legitimate police activity, threatens someone’s safety or attempts to incite other people to violence, according to the ordinance sponsored by Councilmember Lisa Herbold.

The First Amendment can offer protections to members of the public when they watch and record police. And a Seattle Police Department policy adopted in 2008 says bystanders may remain nearby and record the incident as long as they don’t interfere.

So, people already were allowed to watch and record police in Seattle. But the council’s vote means the rights of police observers are now recognized in city law.

According to Beekman, the ordinance says officers should assume members of the public are observing and possibly recording their work at all times. Councilmember Herbold initially proposed the change last year, pointing to high-profile shootings that was recorded by bystanders.

 “The value of video and audio recordings by the public is keenly evident from the recordings in 2016 of the deaths of Philando Castile in Minnesota, Alton Sterling in Baton Rouge … and law-enforcement officers in Dallas and Baton Rouge,” the ordinance says.

Across the country, smartphones are helping regular people hold their police departments accountable. But people watching, recording and criticizing officers have in some instances been arrested, according to a council memo.

Though Seattle police are recorded by patrol-car cameras and are being outfitted with body-worn cameras, civilian recordings are still important, Herbold said Monday.

My opinion? Wonderful! I’ve had many Clients complain that their attempts to record interactions with police result in their cameras being confiscated and being slapped with charges of Obstructing and Resisting police.

I’ve said it once, and I’ll say it again: recording interactions between police and citizens makes everyone behave better and shows proof of what really happened. Kudos to the Seattle City Council.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

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Suite #1420
Bellingham, WA 98225

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