Category Archives: Due Process

True Stories of False Confessions: New Book Explains Why People Confess to Crimes They Didn’t Commit.

Constitutional Rights, Due Process, Duress Defense, Interrogation, law enforcement, police, Studies, , ,

False Testimony/Confessions | False Confession Cases | CIP

Would you confess to a crime you didn’t commit?  Plenty of people have.  A new book  the directors of Bluhm Legal Clinic’s Center on Wrongful Convictions (CWC) at Northwestern University School of Law, is full of articles and book excerpts detailing false confessions made by innocent men and women.

“True Stories of False Confessions” makes clear why false confessions happen all too often. The book details dozens of cases in which men and women of varied ages, races and education levels confessed to crimes they didn’t commit. The accounts are divided into categories bearing such titles as “brainwashing,” “inquisition,” “child abuse” and “exhaustion.”

Together, these cases reveal a disturbing phenomenon that the criminal justice system should address.  With the variety of people described in the book, it’s clear there is not one type of person susceptible to falsely confessing. “Your common sense might tell you that you don’t want to confess,” Drizin said. “But after hours and hours of intense grilling by police, you’ll say anything to stop the questioning. 

“There are untold numbers of these cases,” Warden said. “The examples in the book are just a few in which there have been exonerations. Each story was chosen because a talented journalist happened to write a compelling story about it. There are many, many other cases that simply didn’t come to the attention of an interested writer.”

Among writers whose works appear in the book are John Grisham, Alex Kotlowitz, Dana L. Priest, Sydney H. Schanberg, Maurice Possley, Steve Mills, John Conroy, Don Terry and Thomas Frisbie.

The Center on Wrongful Convictions receives approximately 200 credible requests for legal assistance each month, according to Warden, who says that more than a third of the requests are from men and women who confessed but claim that their confessions were false.  Founded 10 years ago, the center has been instrumental in 37 exonerations, more than half of which involved confessions that proved to be false.

Hate to say it, but in my line of work, false confessions happen all of the time.  

Police officers obtain unlawful confessions through threats, promises, etc.  They place many defendants under duress.  They browbeat.  For hours and hours.  Whatever it takes.  The solution?  Requiring police to electronically record interrogations.

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.

State v. Kyllo: When It Makes Sense, Argue Self Defense

Assault, Constitutional Rights, Due Process, felony, Ineffective Assistance, Jury Trial, Self-Defense, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Undercover inmate describes violence in jail

In State v. Kyllo the WA Supreme Court held that the  jury instruction misstated the law on Self-Defense. Moreover, the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured.

On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, Mr. Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense.

At trial, Defense counsel proposed a self-defense jury instruction that stated:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

Kyllo was convicted on the charge of second degree assault. On appeal, he asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion.

The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured — “One is not required to believe he is about to be grievously harmed or killed.”

The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.

My opinion?  Excellent decision.  Reminds defense attorneys to stay cognizant of the jury instructions they provide.  For those who don’t know, a jury instruction is an instruction given by the court to a jury at the conclusion of presentation of all evidence in a trial, and after the lawyer’s closing arguments, to advise the jury of the law that applies to the facts of the case, and the manner in which they should conduct their deliberations.  The attorneys prepare the instructions.

Here, the defense attorney gave the “Acting on Appearances” instruction.  The instruction presents a good starting point for the circumstances surrounding this particular case (Convict A is mad-dogging Convict B, Convict B attacks Convict A first  — and acting on Convict A’s appearances — because he believes Convict A will attack and get the advantage of surprise).  Unfortunately, the instruction, by itself wasn’t enough.

As a matter of practice, I believe both a self defense instruction AND and “Acting on Appearances” instruction work best in combination with each other.  Speaking from my own trial experience, everyone on the street embraces self defense.  It allows us to fight back when we’re attacked.  Simple.

However, the soft-spoken pacifists out there (who are INCREDIBLY hard to spot at jury selection) are downright offended by the “Acting on Appearances” instruction.  Many juries simply cannot promote violence beyond the context of self defense.  Yet even a pacifist will fight to save their own life.

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.

State v. Rivera-Santos: Why Crossing State Lines – Intoxicated – Is Double Trouble

Constitutional Rights, Department of Licensing, Due Process, DUI, law enforcement, misdemeanor, police, Probable Cause, Reckless Driving, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

Two DUI arrests made in southern Arizona following Labor Day weekend

In State v. Rivera-Santos, the WA Supreme Court determined that the defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights.

Rivera-Santos led police on a chase that started on the Washington side of I-5 and ended on the Oregon side. He was found to have a blood-alcohol content level of .17 percent (more than twice the legal limit), and convicted by an Oregon court of driving under the influence. He was also charged with a DUI in Clark County District Court, but Rivera-Santos argued that it should be dismissed under the constitutional protections against double-jeopardy (i.e. being punished twice for the same crime).

Justice Fairhurst wrote that convicting Rivera-Santos in Washington would not be double-jeopardy, as it was a separate crime.  He drove while drunk in Oregon, and was punished for that by an Oregon court. He also drove while drunk in Washington, and a Washington court could punish him for that separate crime.

My opinion?  If it looks like a duck, smells like a duck, then it must be a duck.  Said differently, this legal decision looks like double jeopardy, smells like double jeopardy, therefore it must be double jeopardy.

For those who don’t know, “Double Jeopardy” happens when defendants are prosecuted twice for the same offense.  It’s unconstitutional.  The Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.’ U.S. v. Halper, 490 U.S. 435, 440 (1989).

Here, the WA Supremes stated that Mr. Rivera-Santos committed two different crimes in two different states.  Fine, I can agree with that.  HOWEVER, I disagree with their decision that charging these crimes is not double jeopardy.  Why do I disagree?  Because these “two crimes” arose from the same facts and circumstances.

Mr. Rivera-Santos did not steal candy from a 7-11 in Oregon, cross State lines, and then steal candy from a 7-11 in Washington.  The crime of DUI is, essentially, driving while intoxicated.   Although Mr. Rivera-Santos drove across State lines while intoxicated, he was DUI only one time during that crossing.  Therefore, he should only be punished once.   Anything more is double jeopardy.

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.

State v. McCormick: Sex Offender’s Suspended Sentence Remains Revoked

Bellingham Defense Attorney, Due Process, Mount Vernon Criminal Defense Attorney, Rape, Sentencing, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

PPT - The Basics of Sex Offender Sentencing in Washington PowerPoint Presentation - ID:253013

In State v. McCormick, the WA Supreme Court held the plain language of Washington’s SSOSA statute does not require proof that a violation was willful before a SSOSA sentence may be revoked.

David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he “not frequent areas where minor children are known to congregate”

Unfortunately, McCormick’s community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick’s first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.

McCormick argued that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence.

However, the Court held that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court’s decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices.

Justice Sanders dissented, asserting that “[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate.”

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.

State v. Engel: WA Supreme Court Reversed Overly Broad Burglary Conviction

Burglary, Constitutional Rights, Due Process, felony, Jury Trial, Property Crimes, United States Supreme Court, Washington Court of Appeals, , ,

118 Fence Ideas and Designs - Different Types With Images

In State v. Engel, the WA Supreme Court ruled that a man suspected of stealing aluminum auto wheels from a rural business wasn’t guilty of committing Burglary in the Second Degree — an extremely serious felony — because the property wasn’t fenced on all sides.

Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute.

The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top.

However, the rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law.

Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.”

My opinion?  I wholeheartedly agree with the WA Supremes for two reasons.  First, under the state’s interpretation of “Burglary,” would-be petty criminals who trespass might be liable for burglary even if the property line at their point of entry were unfenced and unmarked, even if they remained on the property without approaching any buildings or structures, and even if the property were such that they could enter and remain without being aware that it was fenced.  These kinds of examples are well outside the category of offenses the legislature intended to punish as burglary.

Second, Burglary is a serious crime with serious consequences. An arrest and conviction for a residential burglary, or any other property crime, can be a life-changing event that may result in penalties such as mandatory state prison time. Residential burglaries have reached epidemic proportions in many communities and courts are routinely handing out stiff penalties, even to first time offenders.

Again, good opinion.

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.

State v. Redding: U.S. Supreme Court Declares Strip Search of 13-Year-Old Student Unconstitutional

ACLU, Constitutional Rights, Drug Offenses, Due Process, Search and Seizure, Search Warrant, United States Supreme Court, , ,

Should schools be strip-searching students? | Illinois Attorney Referrals and Legal Guidance

In State v. Redding, the U.S. Supreme Court ruled that school officials violated the constitutional rights of Savana Redding, a 13-year-old Arizona girl who was strip searched based on a classmate’s uncorroborated accusation that she previously possessed ibuprofen, a banned medication. This is the biggest victory for students’ rights in the last 20 years.

My opinion?  I’ll let Savannah speak for herself.  Below is a post she wrote for the ACLU’s blog:

“People of all ages expect to have the right to privacy in their homes, belongings, and most importantly, their persons. But for far too long, students have been losing these rights the moment they step foot onto public school property — a lesson I learned firsthand when I was strip-searched by school officials just because another student who was in trouble pointed the finger at me. I do not believe that school officials should be allowed to strip-search kids in school, ever. And though the U.S. Supreme Court did not go quite so far, it did rule that my constitutional rights were violated when I was strip-searched based on nothing more than a classmate’s uncorroborated accusation that I had given her ibuprofen. I’m happy for the decision and hope it helps make sure that no other kids will have to experience what I went through.

Strip searches are a traumatic intrusion of privacy. Forcing children to remove their clothes for bodily inspection is not a tool that school officials should have at their disposal. Yet, until today, the law was apparently unclear, potentially allowing for the most invasive of searches based on the least of suspicions. Every day, parents caution their children about the importance of not talking to strangers, looking both ways before crossing the street, and following directions at school.

But I imagine they never think to warn them that a school official, acting on a hunch, may force them to take their clothes off in the name of safety. And now, thankfully, they won’t have to. Our fundamental rights are only as strong as the next generation believes them to be, and I am humbled to have had a part in preserving and promoting the Fourth Amendment to the Bill of Rights.”

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.

US Supremes Rule Convicted Defendants Have No Right To Test DNA

Assault, Constitutional Rights, DNA, Due Process, felony, Forensics, Legislation, Race & Law, Rape, Sex Crimes, Uncategorized, United States Supreme Court, , ,

How Reliable Is DNA Evidence? | The Marshall Defense Firm

In Yeager v. United States, the U.S. Supreme Court ruled that convicts have no constitutional right to test DNA evidence in hopes of proving their innocence long after they were found guilty of a crime.

The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence. Testing so far has led to the exoneration of 240 people who had been found guilty of murder, rape and other violent crimes, according to the Innocence Project.

The court ruled 5-4, with its conservative justices in the majority, against an Alaska man who was convicted in a brutal attack on a prostitute 16 years ago.

William Osborne won a federal appeals court ruling granting him access to a blue condom that was used during the attack. Osborne argued that testing its contents would firmly establish his innocence or guilt.

In parole proceedings, however, Osborne has admitted his guilt in a separate bid for release from prison.

The high court reversed the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco. States already are dealing with the challenges and opportunities presented by advances in genetic testing, Chief Justice John Roberts said in his majority opinion.

“To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” Roberts said. Alaska, Massachusetts and Oklahoma are the only states without DNA testing laws. In some other states, the laws limit testing to capital crimes or rule out after-the-fact tests for people who confess.

But Justice John Paul Stevens said in dissent that a simple test would settle the matter. “The court today blesses the state’s arbitrary denial of the evidence Osborne seeks,” Stevens said.

My opinion?  HORRIBLE DECISION.  Although the crime in question was heinous, there is no doubt that a small group of innocent people — and it is a small group — will languish in prison because they can’t get access to the evidence.  This directly violates a defendant’s 6th Amendment rights.  Unbelievable.

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.

Class Action Lawsuit Challenges “Camera Tickets”

Bellingham, Due Process, law enforcement, Legislation, Red Light Cameras, Terry Stop, Traffic Infractions, , ,
Rosen Law Firm in Seattle is currently researching a class action law suit against many Washington cities that operate red light and speed zone cameras in Washington.  If you have paid for a photo enforcement ticket in Washington, they may be interested in representing you and trying to get your money back.
Apparently, the firm is willing to do so at no cost to you unless they win, and then only a percentage of the amount they recover for you. If you are interested and meet the eligibility requirements of 1) having received a photo enforcement ticket; 2) in Washington; and 3) you paid the ticket, please contact the Rosen Law Firm:

My opinion?  I wish success upon this class action!  Red light camera tickets seem like an easy way for cities and counties to fill their coffers.  And it is working.  For example, the city of Balitmore shortened the yellow light on just one intersection and collected $1000’s in traffic light camera violation fines until one alert victim took them to court.   Additionally, I’ve heard complaints (hearsay, I know) that yellow lights times are SHORTENED if a camera is observing the intersection; and that the cameras actually don’t decrease people’s speed.

Good luck, RosenLaw Firm.  Give ’em Hell!   🙂

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.

State v. Hinshaw: Absent Exigent Circumstances, Cops Can’t Enter Your Home Without a Warrant & Arrest for DUI

911 Call, Constitutional Rights, Corpus Delicti, Due Process, DUI, Exigent Circumstances, Jury Trial, law enforcement, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

EXIGENT CIRCUMSTANCES | Austin Criminal Defense Lawyer

Great opinion.

In State v. Hinshaw, the WA Court of Appeals held that absent Exigent Circumstances, police cannot enter a home without a warrant & arrest for DUI.

Here, the Moses Lake Police investigated reports of a car unlawfully driving on a bike path.  Police search the path.  They find Mr. Hinshaw on a bike close to the path.  He said he was a passenger in the suspect car, but denies driving.  They release him.

Later, the police find the suspect car in his driveway.  It had a flat tire.  They knock on the door.  He answers the door, yet refuses to come out.  He admits to drinking earlier.  Officers grab his arm, go inside of his home, and arrest him for DUI.  They are concerned his BAC level was dissipating.

The Court of Appeals rejected the State’s argument that “exigent circumstances” justified Mr. Hinshaw’s warrantless seizure.  The Court saw several errors in the police officer’s conduct.   First, the officers failed to establish how quickly the BAC would/could dissipate.  Second, the officers could not estimate how long it would take to get a warrant.

Third, although the police had probable cause to believe Mr. Hinshaw became intoxicated and drove home, the reckless operation of the car and consequent threat to public safety had ended.  Mr. Hinshaw was neither armed nor dangerous.  He posed no threat to the public or officers.  His car was disabled.  Consequently, exigent circumstances did not exist.

My opinion?  Great opinion!  The Court of Appeals saw through the State’s smoke and mirrors.  This was not a case about exigent circumstances.  An emergency never existed!  No, this was a bona-fide; unlawful exercise of “arrest first, ask questions later” on the part of the police.  Clearly unlawful.  Kudos to the Court of Appeals.

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.

 

Study: Drug, Driving Charges Sap Nation’s Courts

Court Fines, Department of Licensing, Drug Offenses, Due Process, DUI, law enforcement, marijuana, misdemeanor, police, Probable Cause, Reckless Driving, Search and Seizure, Studies, Terry Stop, Traffic Infractions, , ,

Stop jailing those accused of low-level, non violent crimes before trial | TheHill

According to a Seattle Times article, low-level drug and driving charges are a financial burden for misdemeanor courts.

My opinion?  As a former public defender (and proud of it), I was dismayed when defendants were prosecuted and jailed on Driving While License Suspended charges.  Indeed, defending these kinds of cases exposed me to some ugly truths about the criminal justice system.

Here’s a typical situation: “Speeder” gets pulled over for speeding.  Speeder can’t afford to pay the ticket.  They miss their court date.  Court gives them a “Failure to Appear” for missing said court date.  The Department of Licensing catches wind.  Speeder’s license gets suspended.   He is now Speeder-Turned-Suspended Licensee (STSL).

Eventually STSL get pulled over – and possibly arrested – on the suspended license.  If STSL is lucky, police officer won’t (1) investigate STSL for DUI, and/or (2) search STSL’s car following the arrest.  If unlucky, STSL might have had a couple of drinks before being pulled over.  They get investigated for DUI.  Or STSL has contraband tucked away in the glove compartment that gets discovered on the search.

All of the sudden, “Speeder” is now a criminal.

The grinding wheels of justice.  Steel jaws gnashing away at people’s rights.  Police using a suspended license as probable cause to arrest you and search your car.  Unbelievable.

Now, more than ever, change is necessary.  King County has implemented a program which simultaneously circumvents the criminal justice system and allows people get their licenses back.  Legal fees are waived if people successfully complete it.  The program is a success.  And it costs less than prosecuting/jailing people.

There’s more.  In 2007, the study’s authors found, 11,553 misdemeanor marijuana cases were filed.  Of those, 3,638 convictions were made, which resulted in about $7.6 million in direct costs to the state.

Again, unbelievable.  Taxpayers subsidize these enormous costs.  However, most people believe small-time drug cases should NOT be prosecuted.  Remember Seattle Initiative I-75?  The measure – which passed successfully in 2003 – directed police officers and prosecutors to treat the personal use of marijuana by adults as the city’s lowest law enforcement priority.

It’s time our court system caught up with the will of the people.

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.