Category Archives: Duress Defense

State v. Deleon: Court Strikes Evidence of “Gang Affiliation” Due To Defendant’s Music Preferences

Image result for los tigros del notre

In State v. Deleon, the  WA Supreme Court held that (1) a defendant’s musical preference does not establish gang membership, and their admittance to gang affiliation during jail  booking may not be used at trial.

The State prosecuted Mr. Deleon and two others for multiple counts of Assault in the First Degree with deadly weapon enhancements and with gang aggravators.  If convicted, these upward enhancements substantially increased Deleon’s prison sentence. At trial, the court admitted as evidence of gang affiliation statements the defendant made at booking about his gang affiliation and evidence of the type of music on his cell phone.  Also, the trial court allowed a police officer to testify as a gang expert regarding generalized information of gang affiliation.

Mr. Deleon was found guilty and sentenced to 1,002 months. He appealed on the issue of (1) whether the trial court violated his Fifth Amendment right against self incrimination improperly admitted the aforementioned evidence, and (2) whether the gang expert testimony regarding gang culture and behavior was irrelevant and thus improperly admitted.

The WA Supreme Court reasoned that the gang information from the jail intake forms was not gathered voluntarily, and thus should not have been admitted as evidence. In short, it reasoned that when a defendant’s self-incriminating statements are made in exchange for protection from credible threats of violence while incarcerated, the statements are coerced and involuntary:

“We do not see how statements made under these circumstances could be considered voluntary. The admission of these statements was a violation of the defendant’s Fifth Amendment rights.”

The WA Supreme Court also ruled that the trial court mistakenly allowed evidence of the type of music on the defendant’s phone as evidence of gang affiliation. “Los Tigres del Norte is a prominent and popular Latin band and there is no evidence in the record to support that enjoying their music is evidence of gang affiliation . . .  We take this opportunity to remind courts to be far more cautious when drawing conclusions from a defendant’s musical preferences.”  This scathing wisdom reminded courts to be careful when admitting generalized evidence about gang affiliation.  “Such evidence is often highly prejudicial and must be tightly constrained to comply with the rules of evidence.”

Finally, the Court ruled that much of the generalized “gang evidence” was irrelevant and prejudicial, and thus should not have been admitted. The court reasoned that, under ER 402, evidence which is not relevant is not admissible. Here, the gang evidence produced by the State’s gang expert witness was highly prejudicial:

“We agree and urge courts to use caution when considering generalized gang evidence. Such evidence is often highly prejudicial, and must be tightly constrained to comply with the rules of evidence.”

With that, the WA Supreme Court held the defendant was entitled to a new trial. Therefore, the Court reversed the convictions and gang aggravators.

My opinion? I really enjoyed the rulings in this case. Sometimes, mainstream culture and music can be misconstrued as “gang evidence” when said music/culture is heard/exhibited by minorities. The Court attacked this veiled racism. Good on them. Also, they made good rulings on the 5th Amendment issues. A defendant’s gang affiliation when being booked into jail is a matter of personal security. The information should not be admitted at trial.

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. Harvill: The “Duress” Defense

He Made Me Do It! Duress in Criminal Cases

In State v. Harvill, the WA Supreme Court held that the lower court abused its discretion by disallowing the defendant to argue the defense of “Duress.”

Defendant Joshua Harvill sold cocaine to Michael Nolte in a controlled buy organized by the Cowlitz County Sheriff’s Office.  At trial, Harvill admitted to selling cocaine to Nolte because he feared that, if he did not, Nolte would hurt him or his family.  Both men knew each other for several years.  Nolte was 5′ 10″ and weighed around 200 pounds.  Harvill was 5’5″ and weighed about 140 pounds.

Harvill feared Nolte.  They worked together, and Nolte bragged about smashing another man’s head with a beer bottle, causing brain damage.  Harvill also knew that Nolte grabbed a gun from another man and then stabbed him.  Harvell knew that Nolte used steroids and that he feared what Nolte was capable of.

Despite their background, the trial court denied Harvill’s jury instruction on the defense of duress.  The jury found Harvill guilty.  He appealed.  The case wound up in the WA Supreme Court.

The Court reasoned that a defendant is entitled to the defense of duress if the defendant proves that (a) he participated in the crime under compulsion by another who by threat or use of force created an apprehension in his mind that in case of refusal he or another would be liable to immediate death or immediate grievous bodily injury; and (b) such apprehension was reasonable upon his part; and (c) he would not have participated in the crime except for the duress involved.  “The question comes down to whether the duress statute requires an explicit threat or whether an implicit threat that arises from the circumstances.”

Here, the Court ruled that defining “threat” to include both explicit and implicit threats serves the purpose of proving duress.  This applies with equal force to direct threats, arising from overtly threatening words or physical intimidation, and to indirect threats, arising from other conduct and circumstances.  As long as the defendant’s perception of the implicit threat is reasonable under the circumstances, he is put to the choice between two evils through no fault of his own and should be allowed to argue the defense.  Additionally, there is no legal authority requiring a threat to be an explicit threat.

Ultimately, the Court ruled Harvill presented sufficient evidence of fear arising from an implicit threat, and the jury should have had the opportunity to decide if this fear was reasonable and if Harvill would have sold cocaine to Nolte under the threat.

My opinion?  Great decision.  Although the WA Supremes split hairs and engaged many semantics to get there, but they issued a good opinion all around.  We’ve all seen the famous mafia movies.  Duress is intimidation, whether implicit or express.  “Let’s go for a car ride” usually means “you’ll be dead before dawn.”  This is the implicit language of the criminal underground.  Things aren’t always nice and clear, especially veiled threats.  Kudos to the WA Supremes for knowing this.

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.

Berghuis v. Thompkins: Miranda Applies, BUT Defendants MUST Clearly Invoke Constitutional Rights

Why Interrogation in Jail May Not Count as “Custodial”: The Supreme Court Makes New Law in Howes v. Fields | Sherry F. Colb | Verdict | Legal Analysis and Commentary from Justia

In Berghuis v. Thompkins, the U.S. Supreme Court ruled that a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.

The case centered around the interrogation of Van Chester Thompkins, who was suspected of Homicide. He remained virtually silent for hours in police custody before giving a few brief responses to police questions. Most significantly, Thompkins answered “yes” when asked, “Do you pray to God to forgive you for shooting that boy down?” The statement was introduced at trial and Thompkins was convicted.

In a 5-4 ruling, the Court held that criminal suspects who do not clearly state their intention to remain silent are presumed to have waived their 5th Amendment rights. Ironically, suspects must literally open their mouths and speak in order for their silence to be legally protected. The new rule will defer to police in cases where the suspect fails to unambiguously assert their right to remain silent.

My opinion?  Naturally, I’m concerned about any retreat from the basic principle that criminal suspects should not be compelled or coerced into incriminating themselves.  The opinion is wrong because it creates additional challenges for suspects who already understand too little about how their constitutional rights apply during police interrogations.

Fortunately, however, the Berghuis decision leaves intact the best strategy for handling any police interrogation: keeping your mouth shut. Requiring suspects with limited legal knowledge to clearly assert their rights may seem a bit strict, but it’s irrelevant if the suspect never says a word to begin with. The point of the 5th Amendment isn’t to protect you after you’ve foolishly incriminated yourself; it’s to remind you that you’re not obligated to answer police questions in the first place.

Ultimately, the burden is on each of us to understand our rights and use that information to make the best decisions. It’s unlikely that any Supreme Court decision will ever change the fact that remaining silent is your best and only strategy if police ask you incriminating questions.

I can’t stress this enough: your attorney can suppress unlawfully obtained evidence IF you clearly assert your 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.

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

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.