Category Archives: Due Process

Youth as Mitigating Factor

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In State v. Solis-Diaz, the WA Court of Appeals Division II held that a juvenile defendant who was tried as an adult for numerous violent felony crimes involving firearms is entitled to a sentencing at which the judge must conduct a meaningful, individualized inquiry into whether the defendant’s youth should mitigate his sentence.

Solis-Diaz was 16 years old in 2007, when he participated in a gang related drive-by shooting in Centralia. He was charged with six counts of Assault in the First Degree, each with a firearm sentencing enhancement; one count of Drive-by Shooting; and one count of Unlawful Possession of a Firearm in the Second Degree. He was tried as an adult. The jury found him guilty on all counts, and the trial court imposed a sentence of 1,111 months in prison.

Solis-Diaz requested an exceptional downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of 1981 (SRA) operated to impose a clearly excessive sentence and that Solis-Diaz’s age indicated diminished capacity to understand the wrongfulness and consequences of his actions. The judge denied the request and again imposed a standard-range sentence of 1,111 months in prison. Solis Diaz appealed.

The Court of Appeals held that under the SRA, a sentencing court must generally sentence a defendant within the standard range. Pursuant to the SRA’s multiple offense policy, standard range sentences for multiple serious violent offenses are to be served consecutively and not concurrently.

This is important. For those who don’t know, a consecutive sentence is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are “tacked” together, so that sentences are served one after the other. In contrast, a concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is five years.

The Court of Appeals further reasoned that a court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. One such mitigating circumstance exists if the operation of the multiple offense policy results in a presumptive sentence that is clearly excessive.  When the resulting set of consecutive sentences is so clearly excessive under the circumstances that it provides “‘substantial and compelling reasons’” for an exceptional sentence below the standard range, the sentencing court may grant that exceptional downward sentence.

Additionally, the Court of Appeals relied on the WA Supreme Court’s recent decision in State v. O’Dell. In that decision, and similar to the defendant here, O’Dell was a juvenile who was also tried and sentenced as an adult to a very serious felony crime (rape, in O’Dell’s case). At O’Dell’s sentencing, the trial court ruled that it could not consider O’Dell’s age as a mitigating circumstance and imposed a standard range sentence of 95 months.  The Supreme Court disagreed with O’Dell’s trial court: “[I]n light of what we know today about adolescents’ cognitive and emotional development, we conclude that youth may, in fact, “relate to a defendant’s crime.”

The Court of Appeals followed O’Dell and said the following:

“The same logic and policy that led the Supreme Court to require the consideration of the youth of a young adult offender would apply with magnified force to require the same of Solis-Diaz, who committed his crimes while a juvenile. As did the trial court in O’Dell, the trial court here decided that under Ha’mim it could not consider the defendant’s youth as a mitigating factor in sentencing. As did the trial court in O’Dell, the trial court here abused its discretion in refusing that consideration. Our Supreme Court’s analysis in O’Dell compels the same result: reversal of Solis-Diaz’s sentence and remand for a new sentencing hearing to meaningfully consider whether youth diminished his culpability.”

The WA Court of Appeals even offered a litmus test in making these determinations:

“In short, a sentencing court must take into account the observations underlying Miller, Graham, Roper, and O’Dell that generally show among juveniles a reduced sense of responsibility, increased impetuousness, increased susceptibility to outside pressures, including peer pressure, and a greater claim to forgiveness and time for amendment of life. Against this background, the sentencing court must consider whether youth diminished Soliz-Diaz’s culpability and make an individualized determination whether his “capacity to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law” was meaningfully impaired.”

The WA Court of Appeals concluded that the sentencing court erred in failing to consider whether the operation of the SRA and Solis-Diaz’s youth at the time he committed the crimes should mitigate his standard range sentence and warrant an exceptional downward sentence.

Consequently, the Court of Appeals vacated Solis-Diaz’s sentence and remanded for re-sentencing back to the trial court. The Court of Appeals also noted that Solis-Diaz may move to disqualify the prior sentencing judge.

My opinion? I’m very pleased Division II is embracing O’Dell, an opinion which I’ve discussed in my blog titled, “State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing.” Furthermore, I’m pleased that Division II also offered a workable litmus test in determining these issues juvenile sentencing for adult crimes. Very good. It not only shows the Courts are following O’Dell, they are also supporting it and offering guidelines for future decisions involving juvenile justice.

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. Budd: WA Supreme Court Acknowledges Unlawful Search of Home.

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In State v. Budd, the WA Supreme Court decided law enforcement officers must properly give Ferrier warnings before entering a residence.

Good decision. Last year, I discussed how the WA Court of Appeals decided this matter in my blog titled, State v. Budd: Ferrier Warnings Improperly Given. Fortunately, the WA Supreme Court upheld the Court of Appeals’ decision.

Police arrived at his door on a “cybertip” that Mr. Budd was talking to underage girls through online chatting and that he possessed child pornography on his computer. Officers arrived at Budd’s home and performed a “knock & talk“, however, they lacked probable cause for a search warrant.  Also,  the detectives did not properly discuss Ferrier warnings with Mr. Holmes before he allowed them entry. They seized his computer, found child porn and charged him with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct under RCW 9.68A.070. He was convicted.

Some background on Ferrier warnings is necessary in order to understand this “search & seizure of a home” case. In State v. Ferrier, the WA Supreme Court held that, before entering a citizen’s home without a warrant, a law enforcement officer must (1) ask the citizen for consent, (2) inform the citizen that he can revoke consent at any time and (3) notify the citizen that he can limit the scope of the entry into the home. If an officer fails to provide these Ferrier rights/warnings, then any evidence obtained from the search is “fruits of the poisonous search” and can be suppressed.

On appeal, Budd argued that the trial court wrongfully denied his motion to suppress evidence because the Ferrier warnings given by police were insufficient. The Court of Appeals agreed with Mr. Budd and suppressed the evidence. In response, the State took the issue up on appeal to the WA Supreme Court. In this new opinion, however, the WA Supremes ultimately decided the Court of Appeals correctly ruled that Budd’s consent was invalid.

The WA Supreme Court reasoned that since Ferrier, the Court has consistently limited the Ferrier warnings to knock and talk procedures. “In this case, the officers conducted a knock and talk because they sought Budd’s consent to enter his home to search for and seize suspected contraband. Therefore, the officers were required to give Budd the Ferrier warnings before entering his home.”

Furthermore, the Court discussed the similarities between Mr. Budd’s case at hand and the defendant in Ferrier:

“Indeed, the officers’ conduct in this case paralleled the conduct of the officers in Ferrier. In both cases, the officers arrived without announcement, surprising the resident. In both cases, the resident was not given time to reflect on the officers’ presence before being asked to give his or her consent for the officers to enter the home and search for evidence of a crime. In both cases, the resident reacted to the knock and talk procedure as expected by being polite and cooperative, and allowing the officers inside the residence.”

Finally, the WA Supreme Court affirmed the trial court’s finding that the officers did not give Budd the Ferrier warnings before entering his home and hold that Budd’s consent was therefore involuntary. And with that ,the WA Supreme Court affirmed the Court of Appeals and dismissed the charges against Mr. Budd.

Again, good decision. Although Mr. Budd’s actions leading up to his charges were certainly concerning, the WA Supremes got it right in deciding that our individual rights trump unlawful government searches of our homes. I’m glad they didn’t decide differently and chip away at the Ferrier decision. In Ferrier, the WA Supreme Court specifically highlighted the fact that when confronted with a surprise show of government force and authority, most residents believe they have no choice but to consent to the search. This is absolutely true. The Ferrier court also noted that it was not surprised by an officer’s testimony that virtually everyone confronted by a knock and talk accedes to the request to permit a search of their home.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prosecutors Must Reveal Toxicologist Identities in DUI Trials.

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In State v. Salgado-Mendoza, the WA Court of Appeals Division II reversed a defendant’s DUI conviction because the Prosecutor failed to give Defense Counsel the name of their Toxicologist expert witness before trial.

On the evening of August 11, 2012, a Washington State Patrol trooper observed Mr. Salgado-Mendoza driving his vehicle and struggling to stay in his lane of travel. The trooper stopped the vehicle. Salgado-Mendoza was investigated and arrested for DUI. His BAC test showed a blood alcohol concentration of 0.103 and 0.104; which is over the .o8 limit.

Several months before his trial date on the DUI charge, Salgado-Mendoza requested that the Prosecutor disclose information about any and all expert witnesses the Prosecutor intended to call at trial. This regularly happens when defense attorneys argue motions to compel. The Prosecutor attempted to contact the toxicology lab by phone to narrow the list of possible toxicology witnesses, but was unsuccessful.

Three days before trial, Salgado-Mendoza filed a motion requesting that the court dismiss the case or exclude the toxicologist’s evidence based on governmental misconduct.

On the afternoon before trial, the State received a list of three toxicologists, one of whom might testify the next day. The State provided this list to Salgado-Mendoza.

When the parties appeared for trial on May 9, Salgado-Mendoza re-argued his motion to exclude the toxicologist’s testimony or to dismiss the DUI charge because the State had still not disclosed which toxicologist would testify. The Court denied the motion. Salgado-Mendoza was found guilty at trial.

Salgado-Mendoza appealed his conviction to the superior court. Finding that the district court had abused its discretion by (1) not excluding the toxicologist’s testimony due to the State’s violation of the discovery rules and mismanagement of the case in failing to disclose its witness prior to trial, and (2) excluding the defense expert’s testimony about the breath-alcohol testing machine, the superior court reversed the DUI conviction and remanded the matter for a new trial. The State appealed to the WA Court of Appeals.

Ultimately, the WA Court of Appeals held that the Prosecutor violated the discovery rules under CrRLJ 4.7(d) by failing to take reasonable steps to obtain the name of its witness in a timely manner. It reasoned that the Prosecutor had an obligation to attempt to acquire and then disclose that information from the toxicology lab. Consequently, the Prosecutor’s failure to provide the defense with a specific witness’s name before trial is not reasonable. This, in turn, amounted to governmental misconduct under CrRLJ 8.3(b).

Furthermore, the Court held that Prosecutor’s misconduct was prejudicial and that the exclusion of the toxicologist’s testimony was the proper remedy. The Court emphasized this remedy was necessary because the issue was an issue of public importance:

“On retrial, the State should ensure that it provides the name and address of the person or persons it intends to call at trial or comply with CrRLJ 4.7(d) when preparing for the new trial.”

My opinion? Good decision. It is extremely difficult to provide a competent and adequate defense when Prosecutors do not follow the rules of discovery.

For those who don’t know, a Prosecutor must follow many procedures when trying cases. The following procedures expedite a fair trial and protect the constitutional rights of the defendant: (i) promote a fair and expeditious disposition of the charges, whether by diversion, plea, or trial; (ii) provide the defendant with sufficient information to make an informed plea; (iii) permit thorough preparation for trial and minimize surprise at trial; (iv) reduce interruptions and complications during trial and avoid unnecessary and repetitious trials by identifying and resolving prior to trial any procedural, collateral, or constitutional issues; (v) minimize the procedural and substantive inequities among similarly situated defendants; (vi) effect economies in time, money, judicial resources, and professional skills by minimizing paperwork, avoiding repetitious assertions of issues, and reducing the number of separate hearing; and (vii) minimize the burden upon victims and witnesses.

Here, knowing the names of the Prosecutor’s witnesses before trial is simply fair. Period.

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.

High Court Strikes Racism in Jury Selection

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The U.S. Supreme Court just sent a strong message about racism in the justice system.

In Foster v. Chatman, the Court reversed a defendant’s murder conviction after discovering that the Prosecutor systematically eliminated African American jurors from serving on Mr. Foster’s jury because of their race.

Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury.

Foster argued that the State’s use of those strikes was racially motivated, in violation of Batson v. Kentucky. The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas corpus proceeding.

While that proceeding was pending, Mr. Foster’s defense attorneys used the Georgia Open Records Act to obtained the Prosecutor’s file used during trial. In notes, prosecutors had highlighted the African Americans on several different lists of potential jurors. On one list, under the heading “Definite NOs,” prosecutors listed six potential jurors, all but one of whom were black.

Eventually, the U.S. Supreme Court granted review of the case on the issue of whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

The Court reasoned that the Georgia Supreme Court’s decision that Foster failed to show purposeful discrimination was clearly erroneous. They started with Batson’s three-step process for adjudicating claims such as Foster’s. First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, the trial court must determine whether the defendant has shown purposeful discrimination.”

Here, and in sum, the Court reasoned that Foster established purposeful discrimination in the State’s strikes of two black prospective jurors:

” . . . along with the prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was motivated in substantial part by discriminatory intent . . . the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

My opinion? Good decision. The decision is a forceful blow against racism in the courts. Although the Foster decision won’t end racial discrimination in jury selection, it is certainly vindication for the potential jurors who weren’t allowed to fulfill their civic duty all those years ago because of their race. As for Foster, his future is still in limbo. The Supreme Court’s decision entitles him to a new trial before a jury of his peers that hasn’t been tainted by racial discrimination. Still, that mere fact doesn’t guarantee a different outcome. The new jury may come to the same conclusion as the old one. But if nothing else, Mr. Foster’s death penalty has likely been put off for many years to come. And in the world of death penalty litigation, that counts as a win.

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.

Bellingham Police Department Body Cameras Now Mandatory

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A news article by Samantha Wohlfiel from of the Bellingham Herald reports that starting this July, Bellingham Police Department (BPD) will require all uniformed patrol officers to wear and use body cameras.

In 2014, the BPD started a voluntary program, allowing officers to use a body camera if they were willing. Now, Police Chief Cliff Cook has decided all uniformed patrol officers will need to wear the cameras while on duty:

“I think the original pilot and then the past year and a half … has shown us that having the videos is not only beneficial in cases of prosecution of individuals for crimes, as evidence of the actions of our officers, especially when they’re appropriate . . .  It also generally helps us resolve disputes or disagreements about what may have transpired between an officer and a citizen much more quickly and in a more definitive way.”

~Police Chief Cliff Cook

Initially, 18 officers volunteered for Bellingham’s program, and currently 34 officers are using the cameras, Cook said. He also mentioned that his police officers have noted that people often change their behavior for the better when they’re told they’re being filmed.

One of the main concerns for officers and community members has been privacy, Cook said:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

Basically, the “policy” requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

The department has a mix of cameras, some that are clipped on a lapel, others that are worn on glasses, but both have easily been knocked off in situations where officers were restraining someone, Cook said, so the department may shift toward other models.

Between 2014 and 2016, the total program cost has been $315,250, which includes things such as all hardware (the cameras, clips, glasses they sit on, etc.), software and docking stations, Cook told the council.

According to the article, the projected costs moving forward are about $35,000 to $56,000 per year each of the next two years for renewed data storage management.

Another concern was, of course, privacy:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

The current policy requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

My opinion? This is a step in the right direction. Body cameras make everyone behave better. They also catch evidence of what really transpired. Good move, BPD.

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.

Second Amendment Protects Stun Guns

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In Cadtano v. Massachusetts, the U.S. Supreme Court ruled that the Second Amendment presumably extends to stun guns.

After a “bad altercation” with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and in fear for her life. She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun “for self-defense against her former boy friend, Caetano accepted the weapon.

It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend waiting for her outside. He “started screaming” that she was “not gonna [expletive deleted] work at this place” any more because she “should be home with the kids” they had together. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore. . . . I don’t wanna have to use the stun gun on you, but if you don’t leave me alone, I’m gonna have to.” The gambit worked. The ex-boyfriend “got scared and he left her alone.”

Under Massachusetts law, however, stun guns are illegal.

When police later discovered the weapon, Ms. Caetano was arrested, tried, and convicted for violating the law. The Massachusetts Supreme Judicial Court affirmed the conviction, holding that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of the Second Amendment’s enactment.”

Her case was appealed to the United States Supreme Court.

The U.S. Supreme Court rejected the Massachusetts Supreme Court’s conclusion that stun guns are unsuited for militia or military use. It reasoned that law enforcement and correctional officers carry stun guns and Tasers, presumably for such purposes as nonlethal crowd control. Also, subduing members of a mob is little different from suppressing insurrections, a traditional role of the militia.  Finally, several branches of the U. S. armed services equip troops with electrical stun weapons to “incapacitate a target without permanent injury or known side effects.”

The Court also reasoned that “hundreds of thousands of Tasers and stun guns have been sold to private citizens,” who may lawfully possess them in 45 States. Finally, the U.S. Supreme Court concluded with powerful language stated below:

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense. If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

With that, the U.S. Supreme Court vacated the judgment of the Massachusetts Supreme Court and remanded the case for further proceedings.

My opinion? Good decision. Stun guns are non-lethal use of self-defense. They shouldn’t be outlawed or classified as a dangerous weapon.

FYI, stun guns are (mostly) legal in WA State. State law only prohibits the possession of a stun gun on school property under RCW 9.41.280.

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. Castillo-Lopez: Substituting Counsel & Continuances

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In State v. Castillo-Lopez, Division II of the WA Court of Appeals upheld that the trial court’s decision to deny a motion to continue a trial on five counts of Rape of a Child in the Second Degree to allow the defendant’s retained attorney to replace the defendant’s court appointed attorney.

Mr. Castillo-Lopez was charged with having sexual intercourse with his step-daughter “T.S.” on five separate occasions between January 2012 and February 2013. T.S. turned 12 years old in 2012.

The court set the case for trial on July 7, 2014.

On June 19, 2014, Castillo-Lopez argued motions for substitution of counsel and for a continuance of the trial date. Castillo-Lopez argued the case should be continued because his new attorney needed time to prepare and the parties were still awaiting DNA evidence. Although the trial court ruled it would grant the substitution, the court denied the continuance. The Court referenced  “a statute that says the court has to consider also the impact of this on the child . . . (RCW 10.46.085).

On July 3, a different judge presided over a trial confirmation hearing. And again, the trial court made it clear that it would allow the substitution, but would not grant the continuance.

The matter proceeded to trial. The jury found Castillo-Lopez guilty of five counts of rape of a child in the second degree. The trial court sentenced Castillo-Lopez to a minimum of 500 months’ confinement.

Castillo-Lopez appealed on the argument that the trial court denied him his counsel of choice and abused its discretion when it denied his motions to substitute counsel that were dependent upon the court granting his motions to continue the trial date.

The Court of Appeals, however, disagreed. It decided the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. In considering these types of motions, a trial court should consider all relevant information because “these situations are highly fact dependent and there are no mechanical tests that can be used.” State v. Hampton. Finally, it reasoned that  trial courts should consider all relevant information including the 11 factors described in the most recent version of LaFave’s Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

(5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial;

(11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Here, the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. It considered relevant information and applied a number of the above-listed factors in making its decision. It also reasoned Castillo-Lopez never expressed dissatisfaction with his appointed counsel. Castillo-Lopez did not want a continuance. Again, the trial court made it clear it would grant the motion for substitution of counsel, but without a continuance.

Thus, the denial of the motion for a continuance on July 3, 2014 was not an abuse of discretion because there were no substantial or compelling reasons to continue the trial date and the benefit to Castillo-Lopez was outweighed by the detriment of a continuance on the child victim.

My opinion? The Court should have granted at least  one continuance. Although the crimes were heinous, that’s not the point. Under the 6th Amendment, all defendants deserve a fair trial and to be represented by counsel of their choosing. It takes a lot of time to prepare for jury trial in a multi-count sex case involving Class A felonies. At least one continuance is warranted.

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.

Police Brutality Bill in WA Senate

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Seattle Times reporter Steve Miletich wrote an article discussing a bill, introduced in the WA State Legislature, which  would make it easier to bring criminal charges against officers over the use of deadly force.

House Bill 2907, sponsored by 12 Democrats in the House, would remove language in state law RCW 9A.16.040 barring police officers from being prosecuted for killing someone in the line of duty as long as they acted in good faith and without malice, or what is defined as “evil intent.”

Miletich reports that RCW 9A.16.040 was the subject of a Seattle Times Special Report  and virtually precludes murder or manslaughter charges against police officers even if prosecutors concluded that an officer committed a wrongful killing.

House Bill 2907 comes at a time of national scrutiny of killings by police, marked by the Black Lives Matter movement. Miletich reports that it “faces a steep hurdle” to attract enough votes in the House, which is narrowly controlled by Democrats, some from conservative rural districts, and to win passage in the Republican-controlled Senate.

In addition to striking the “malice” and “good-faith wording,” House Bill 2907 eliminates language outlining some scenarios in which officers may use deadly force. It’s replaced requirements stating that an officer must “reasonably” believe that there is an “imminent threat” of death or serious injury to the officer or a third party, and that lethal action is necessary to prevent it.

What is reasonable, imminent and necessary is likely to be hotly debated. Supporters believe the proposed changes would be beneficial.

“This legislation provides much-needed guidance to law enforcement officers statewide on the use of deadly force,” Kathleen Taylor, executive director of the ACLU of Washington, said in a statement. “It rightly allows officers to use deadly force only if they reasonably believe that there is an imminent threat of serious harm to themselves or other persons.” She argues that  current laws have made it nearly impossible for the public to hold officers accountable for the wrongful use of deadly force and has hindered our ability to ensure justice for all.

The bill has been referred to the House Committee on Public Safety. It grew from legislation prepared by the Black Alliance of Thurston County, formed in the aftermath of the shooting of two young black men in Olympia last year by a white police officer.

My opinion? The legislation is timely, for sure. Statistics suggest that shootings from police are increasing. Modern technology by way of dash-cams, cell phone cameras and police body cameras has exposed the phenomenon. Archaic laws should not continue to protect police officers who unnecessarily shoot 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.

Mugshot Shaming & Facebook

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A news article from CBS 6 News reports that the Chesterfield County Sheriff’s Office in Virginia has decided to post weekly mugshots of people arrested on DUI charges on their Facebook page. Every Thursday they put the mugshots together into a video that gets thousands of views.

The sheriff told CBS 6 that while deputies aren’t making the arrests, they’re hoping the videos will make a difference.

“It’s a community issue,” he said, and pointed out that DUI infractions are on the rise.

Over the past seven days, 22 people in Chesterfield were charged with DUI.

“So we wanted to do our part, in conjunction with the police department, who do a good job making the arrests, and seeing if we couldn’t help deter somebody from getting in that car when they’ve had too much to drink,” said Sheriff Karl Leonard.

Additionally, the Chesterfield Sheriff’s Office wants to remind viewers that everyone you see here is innocent until proven guilty in court.

My opinion? Often, clients facing criminal charges ask me whether they can sue the Bellingham Herald – or anyone else, for that matter – on claims of slander and/or libel for posting their arrest on the Herald’s weekly jail reports.

Unfortunately, the typical answer is “No.” Under the common law, proving slander and libel require a finding that the information distributed to the public is untrue. Here, the fact that someone was arrested is, in fact, true. Therefore, that information can be reported. Additionally, news media outlets reporting this information provide the caveat to viewers that arrested individuals are innocent until proven guilty in court. Chesterfield County Sheriff’s Office has done this as well.

Still, social media is used by everyone. Who among us wants their arrest information posted on Facebook? The information is a scarlet letter. It’s embarrassing. Worst-case scenario,  people may lose employment opportunities and come under scrutiny from their peers, family and friends from the posting of this highly personal information on Facebook.

On a positive note, posting people’s mugshots on Facebook could reveal whether police are racially profiling DUI defendants. Watch the video. Notice how 99.9% of Chesterfield County’s DUI offenders are Hispanic or African American? This, in a county where census data information reveals that 70% of Chesterfield County’s population is 70% Caucasian?

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. Robison: Implied Consent & Pot DUI

Bellingham Defense Attorney, Blood Test, Drug Offenses, Due Process, DUI, Evidence, Implied Consent, Legislation, marijuana, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Robison,  the WA Court of Appeals Division I held that a BAC test requires suppression when the officer giving the breath to a driver suspected of marijuana DUI fails to provide that driver with Implied Consent warnings required by that statute.

On June 29, 2013, Washington State Patrol Trooper B.S. Hyatt stopped Darren J. Robison for traffic violations. Trooper Hyatt smelled intoxicants and marijuana. Trooper Hyatt asked how long it had been since Robison had smoked marijuana. Robison responded that it had been a couple of hours. Trooper Hyatt arrested Robison. At the Tulalip Police Department, officers read Robison an “Implied Consent Warning for Breath” form, which Robison stated he understood and signed.

The form included warnings only about alcohol and did not include any marijuana-related warnings. The two breath tests given Robison both produced results over the legal limit. The State charged Robison with DUI. Robison asked the district court to suppress evidence based on an illegal stop and to suppress the breath test because Robison did not receive all required implied consent warnings.

The district court denied the motion. It concluded that Trooper Hyatt had probable cause to stop Robison. The district court also took judicial notice that the breath test used cannot detect THC, and that its purpose was to determine the alcohol concentration in Robison’s breath. The district court decided that the implied consent warnings given accurately informed Robison of the consequences of the breath tests, which “were all the warnings that were legally required on the date of violation given the decision facing the defendant.” The district court found Robison guilty but stayed his sentence pending his appeal. Robison appealed to the superior court.

The superior court reversed the district court. It found that the marijuana-related warnings were a significant part of the required implied consent warnings and the failure to give these warnings under the circumstances made the warnings given incomplete and misleading. The superior court suppressed the test results and remanded the case to the district court for further proceedings consistent with its decision.

Ultimately, the WA Court of Appeals granted the State’s request for discretionary review of the superior court’s decision.

First, the Court of Appeals gave background on how police officers apply Washington’s Implied Consent Laws in DUI investigations. Before giving a breath test to a person reasonably believed to be driving under the influence, an officer must provide that person with certain warnings required by statute. Specifically, an officer must inform the driver of his right to refuse the test or to have additional tests done.

The Court reasoned that the officer’s warning must also state that refusal to take the test will result in license revocation, that the refusal may be used at a criminal trial, and that the driver may be eligible for an ignition interlock license. Pertinent to this case, the officer must also warn about the consequences of certain test results. This warning has changed several times in recent years.

The court further explained that in 2012, Washington voters enacted Initiative 502, which legalized some uses of marijuana. This initiative also amended Washington’s Implied Consent laws by adding a warning about marijuana test results.

In this case, Trooper Hyatt warned Robison about the consequences of test results showing an alcohol concentration in his breath. However, Trooper Hyatt failed to warn Robison of the consequences of test results showing a prohibited level of THC concentration in his blood. Consequently, the Court of Appeals reasoned that the BAC test was properly suppressed because of this omission.

Additionally, the Court rejected the State’s argument that (1) an arresting officer has discretion to edit implied consent warnings as he deems appropriate to the facts of a case, and (2) the officer’s incomplete warning was harmless. Here, Robison smelled of marijuana when arrested and admitted smoking marijuana to the arresting officer. “Under these circumstances, we cannot conclude beyond a reasonable doubt that Robison would have agreed to take the breath test had he received the THC warning.”

The Court of Appeals concluded that because the State cannot show that an officer gave Robison all the statutorily required warnings, it cannot establish the foundation required for admission of the breath tests given to him. “While cases have characterized this result as suppression, when the State cannot show that it complied with the implied consent statute, the State has failed to meet its burden of proof for admission of evidence it offers to prove guilt. The defendant does not have to show prejudice in this circumstance.”

With that, the Court of Appeals affirmed the superior court’s decision to suppress Robison’s BAC test.

My opinion? Good decision.  DUI investigations involving Implied Consent Warnings must keep up with today’s legislative amendments. The law is the law.

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.