Category Archives: Evidence

Can Artificial Intelligence Lead to Wrongful Convictions?

Artificial Intelligence, Bellingham Defense Attorney, Evidence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, Uncategorized, Whatcom County Criminal Defense, , , , ,

Image: (Kathleen Crosby/Innocence Project)

Photo Courtesy of Kathleen Crosby & The Innocence Project

The Innocence Project published a very insightful article describing how AI-based surveillance systems lack independent verification, empirical testing, and error rate data. These shortcomings lead to wrongful arrests and potentially wrongful convictions. More worrisome, there’s a disturbing readiness among some system actors, especially prosecutors, to accept AI-based evidence at face value. As a result, the eager acceptance of AI-based evidence mirrors the same flawed embrace of misapplied forensic science, which has contributed to numerous wrongful convictions.

BACKGROUND

The use of unreliable forensic science has been identified as a contributing factor in nearly 30% of all 3,500+ exonerations nationwide. Take bite mark analysis, for example. The practice was widely used in criminal trials in the 1970s and 1980s but is poorly validated, does not adhere to scientific standards, lacks established standards for analysis and known error rates, and relies on presumptive tests. It has since been discredited as unreliable and inadmissible in criminal trials due to its shortcomings. Still, there have been at least 24 known wrongful convictions based on this unvalidated science in the modern era.

ADMITTING SCIENCE-BASED EVIDENCE 

The 1923 Frye v. United States decision introduced the “general acceptance” standard for admissibility at trial. In short, the scientific technique must have expert recognition, reliability, and relevance in the scientific community to be “generally accepted” as evidence in court. Some state courts still apply this standard today. Also, the Daubert v. Merrell Dow Pharmaceuticals Inc. decision shifted the focus to evaluating the relevance and reliability of expert testimony to determine whether it is admissible in court.

In applying the Daubert standard, a court considers five factors to determine whether the expert’s methodology is valid:

  • Whether the technique or theory in question can be, and has been, tested;
  • Whether it has been subjected to publication and peer review;
  • Its known or potential error rate;
  • The existence and maintenance of standards controlling its operation; and
  • Whether it has attracted widespread acceptance within a relevant scientific community.

Under Daubert and Frye, much AI technology, as currently deployed, doesn’t meet the standard for admissibility. ShotSpotter, for example, is known to alert for non-gunfire sounds and often sends police to locations where they find no evidence that gunfire even occurred. It can also “significantly” mislocate incidents by as much as one mile. It, therefore, should not be admissible in court.

Similarly,  facial recognition technology’s susceptibility to subjective human decisions raises serious concerns about the technology’s admissibility in court. Such decisions, which empirical testing doesn’t account for, can compromise the technology’s accuracy and reliability. Research has already shown, for instance, that many facial recognition algorithms are less accurate for women and people of color, because they were developed using photo databases that disproportionately include white men.

My opinion? If we are to prevent a repeat of the injustices we’ve seen in the past from the use of flawed and untested forensic science, we must tighten up the system. Too many investigative and surveillance technologies remain unregulated in the United States.

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.

When Rap Lyrics Are Used Against You In Court.

Bellingham Defense Attorney, ER 401, ER 402, ER 403, ER 404(B), Evidence, Harassment, Legislation, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Why Are Rap Lyrics Being Used As Evidence in Court?

Journalist Sam Levins reports that California could soon limit the admissibility of rap lyric evidence at trial.

Last week, California lawmakers passed new regulations meant to restrict such use of rap lyrics as evidence in criminal court, the first-of-its-kind legislation expected to become law in the US. Experts say that although the impact of the new policy will be narrow, it is a step forward in putting guardrails on a prosecutorial practice that all too often has worked to criminalize the artistic expression of young Black and Latino men.

THE HISTORY BEHIND ADMITTING RAP LYRICS AS EVIDENCE AT TRIAL.

According to the article, more than 500 reported cases of prosecutors using rap music as evidence against defendants. The practice started to surge in the 2000s, when authorities began to rely on social media in cases against amateur rappers.

The lyrics are typically cited to suggest “gang affiliation”, proof of crimes and intent, or demonstrate a rapper’s “violent” character or threats. The strategy was used against famous artists like Snoop Dogg in the 1990s, Drakeo the Ruler in 2018 and Tekashi 6ix9ine in 2019.

Professor Jack Lerner, a University of California, Irvine Law School professor, is an expert on the subject. He says the tactic is used across the nation. Apparently, the American Prosecutors Research Institute released a 2004 manual encouraging the use of lyrics in search warrants and trials.

RAP MUSIC ON TRIAL.

Although there are rare cases where words or music videos may be linked to specific criminal offenses, experts say research shows their use in court has often worked to prejudice jurors against young men of color.

Multiple studies have found that associating defendants with rap music creates a strong negative bias in jurors. People are significantly more likely to perceive lyrics as violent, offensive, dangerous and literal if they are from rap, compared to other genres.

Researchers have also found widespread examples of prosecutors taking lyrics out of context, presenting them in inaccurate and misleading ways, treating fictional lines as facts or confessions and using music to expand charges and secure convictions and lengthy sentences.

“Prosecutors talk to each other and see this is a very effective tactic, and that it’s unlikely to be reversed on appeal. So why wouldn’t you do this if your goal is to lock people up, whether they’re guilty or not?” ~Dr. Erik Nielson, University of Richmond Professor

CALIFORNIA’S PROPOSED LAW BANNING THE ADMISSION OF RAP LYRIC EVIDENCE AT TRIAL.

The new California law places limits on when prosecutors can cite defendants’ “creative expression” in court. It applies to all genres of music, dance, film and other art forms, though the law acknowledges that using rap lyrics in particular creates a substantial risk of prejudice. Reggie Jones-Sawyer is the California state representative behind the bill.

The law requires judges to hold a hearing without the jury present to consider the admissibility of the evidence and whether it would “inject racial bias into the proceedings”.

A pending bill in New York introduced earlier this year would prohibit rap lyrics unless there was “convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case”.

Federal lawmakers have introduced legislation similar to California’s bill, and the Recording Academy and major labels have backed the reforms.

WASHINGTON LAW ON CHARACTER EVIDENCE.

Under Evidence Rule 404, evidence of any other crime, wrong, or act is generally not admissible as character evidence. However, the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  Judges typically apply a balancing test  to determine whether character evidence is relevant, probative or prejudicial.

My opinion? Let’s hope California’s legislation passes. This is a viable way to stop overzealous prosecutors from using creative expression, which should never be prohibited.

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

Rape By Forcible Compulsion

Bellingham Defense Attorney, Evidence, felony, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Sexual Assault Laws WA State | Tario & Associates, P.S.

In State v. Gene, the WA Court of Appeals held that for a charge of Rape in the Second Degree by Forcible Compulsion, the force must be directed at overcoming the victim’s resistance. If a victim is unconscious or unable to respond there is no resistance to overcome.

BACKGROUND FACTS

The defendant Mr. Gene and K.M. had a “brother-and-sister-like friendship.” During the summer of 2018, they hung out almost all the time every weekend together with a group of their friends. On the evening of August 29, 2018, Gene and two of his friends, Jesus Montano and Sedrick Hill, went to K.M.’s apartment. K.M.’s friend Rachel Charles was already present. The group used the hot tub in K.M.’s apartment complex, consumed alcohol, and listened to music. At some point during the evening, they went up to K.M.’s apartment and played a drinking game.

Eventually, K.M. began to feel unstable and sick. She went to the bathroom and began vomiting. Still feeling nauseous and dizzy, K.M. went to her bedroom to sleep. K.M. felt uncomfortable and nauseous in her bed, so she took a comforter and slept in a fetal position on the floor. At trial, K.M. testified that Gene sexually assaulted her while she slept on the floor.

Gene was charged with numerous counts of Rape in the Second Degree by Forcible Compulsion. A jury found Gene not guilty of Counts 1 and 3, and guilty of Count 2. Gene appealed his  sole conviction on arguments that insufficient evidence existed to support it.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals began by defining “Forcible compulsion” under the statute.
In short, “Forcible compulsion” means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.

Next the Court interpreted WA’s case law. Quoting State v. McKnight, it said that in order for there to be forcible compulsion, there must have been force that was “directed at overcoming the victim’s resistance and was more than that which is normally required to achieve penetration.” Furthermore, the resistance that forcible compulsion overcomes need not be physical resistance, but it must be reasonable resistance under the circumstances.

“Here, viewing the evidence in the light most favorable to the prosecution, K.M. did not resist the penetration of her vagina by Gene’s penis. K.M.’s testimony, set forth in full above, was that she was unconscious or unable to respond when Gene engaged in sexual contact with her. Because K.M. was unable to respond, she could not resist the penile-vaginal assault and there was no resistance for Gene to overcome.” ~WA Court of Appeals

Accordingly, under these circumstances, no reasonable juror could find beyond a reasonable doubt that Gene resorted to forcible compulsion to engage in penile penetration of K.M.’s vagina. Thus, the evidence was insufficient. With that, the Court of Appeals reversed Gene’s conviction and remanded for further proceedings.

However, the Court of Appeals also mentioned Gene for rape in the second degree by means of engaging in sexual intercourse with a person who is incapable of consent by reason of being physically helpless or mentally incapacitated.

Please contact my office if you, a friend or family member are charged with a sex ofense or any other crime. The Fourteenth Amendment due process clause both requires that
every element of a charged crime be proved beyond a reasonable doubt and
guarantees a defendant the right to a unanimous jury verdict. Hiring an effective and competent defense attorney is the first and best step toward justice.

Not a Toy, Still a Gun

Bellingham Defense Attorney, Evidence, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Kessler Arms 12Ga. Bolt Action Shotgun

In State v. Gouley, the WA Court of Appeals held that an antique shotgun that was missing a bolt action was still a “firearm.”  The State merely has to establish that the shotgun was a real gun, not a toy gun.  The State was not required to prove that the firearm could be rendered operational with reasonable effort and within a reasonable period of time.

FACTUAL BACKGROUND

Gouley was convicted of a felony and was under community supervision when he missed an appointment with his community corrections officer. Because of Gouley’s failure to report, the Department of Corrections issued a warrant for Gouley’s arrest.

Several officers attempted to locate Gouley at his listed residence to execute the warrant. The officers found Gouley asleep in his bedroom. In searching the bedroom, the officers discovered a shotgun under Gouley’s bed. Gouley was previously convicted of a serious offense and was prohibited from possessing a firearm.

After Gouley was placed in the squad car, he said the shotgun was given to him by his great uncle. The shotgun was a 20-gauge bolt action shotgun made by Kessler Arms. Although the company was out of business, the shotgun is not rare and is relatively inexpensive. When the shotgun was discovered under Gouley’s bed, it was missing a bolt action assembly and was not operable in that condition.

The State charged Gouley with one count of First Degree Unlawful Possession of a Firearm
and one count of Escape from community custody.

At trial, the judge instructed the jury on the definition of “inoperable firearms.” The instruction said that a “temporarily inoperable firearm that can be rendered operational with reasonable effort and within a reasonable time.” Also, a “disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time” met the definition of a firearm. Gouley consented to the use of this instruction. The jury convicted Gouley as charged. Gouley appealed on arguments that the State failed to present sufficient evidence to sustain his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals defined the term “firearm” under the statute. A “firearm” is a “weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.” Furthermore, a firearm need not be operable in order to qualify as a firearm under the statute. Instead, the inquiry is whether the firearm is a “gun in fact” rather than a “toy gun.”

The Court reasoned the evidence sufficient to show that the device at issue was a firearm  because it was a gun in fact and not a toy. “Although the shotgun was missing a bolt action, Schoeman testified that the gun could be made operable and could fire if a bolt or bolt assembly is inserted into the receiver.”

The Court raised and dismissed Gouley’s argument the firearm was inoperable. Gouley pointed to the fact that there was something wrong with the firing pin of that firearm or maybe the trigger spring, or the firing pin spring.

“However, the fact that the shotgun was defective or inoperable when it was discovered does not mean that the shotgun was a toy, or anything other than a “gun in fact.” And whether the device was a gun in fact is the only relevant determination that the jury had to make.” ~WA Court of Appeals

Ultimately, the Court reasoned the evidence established that the firearm possessed by Gouley met the definition of firearm. With that, the Court of Appeals upheld Gouley’s conviction.

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.

Access Devices

Access Devices, Bail Jumping, Bellingham Defense Attorney, Evidence, felony, Forgery, Mount Vernon Criminal Defense Attorney, Possession of Stolen Property, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

How to Spot a Forged Check | SQN Banking Systems

In State v. Arno, the WA Court of Appeals Division III held that a paper check presented to a bank is excluded from the definition of an “access device.” Such a paper check will not support a conviction for Second Degree Possession of Stolen Property.

BACKGROUND FACTS

The defendant Mr. Ibrahim Arno brought a forged check for $1,000 to a Wells Fargo Bank in May 2018. He was charged with Forgery and Possession of Stolen Property. While his charges were pending, Mr. Arno missed a court date. He was later charged with Bail Jumping.

The case proceeded to trial. The check was nominally written and bore a signature from the victim Mr. Pinnow. He testified that a box of checks had been stolen from his house in 2017 and that the check in question was one of those that had been stolen. He denied writing the check, and the signature on the check did not match the bank’s records. The account the check was drawn on had been closed earlier after several of the stolen checks were fraudulently cashed.

Regarding the Bail Jumping Charge, Mr. Arno testified that he received a scheduling order with several dates crossed out and was “confused.”

A jury found Mr. Arno guilty of all charges. He appealed the Possession of Stolen Property conviction because the statutory definition of “access device” specifically excludes paper checks from its definition.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying a person is guilty of second degree possession of stolen property if he “possesses a stolen access device.” An “Access device” is defined as “any card, plate, code, account number, or other means of account access that can be used . . . to initiate a transfer of funds, other than a transfer originated solely by paper instrument.”

“Mr. Arno argues that the statute’s plain language excludes an attempt to transfer
funds by presenting a bad check for payment,” said the Court of Appeals. “We agree. If the exclusion is to mean anything, it clearly applies to the presentation of a paper check at a bank.”

The Court of Appeals rejected the State’s arguments that that it was prosecuting Mr. Arno for possessing an account number, not for presenting a forged check. “The record belies the State’s argument,” said the Court. “In addition, it is clear that the State was not charging Mr. Arno for possessing bank account numbers; it was charging him with possession of a stolen check.”

“We hold that a paper check presented to a bank is excluded from the definition of an access device as ‘a transfer originated solely by paper instrument.’ RCW 9A.56.010(1). Thus, there is insufficient evidence to support Mr. Arno’s conviction for second degree possession of stolen property.” ~ WA Court of Appeals

Nevertheless, the Court of appeals affirmed Mr. Arno’s convictions for forgery and bail jumping.

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.

Discarded DNA Admissible

Bellingham Defense Attorney, DNA, Evidence, felony, Homicide & Manslaughter, Kidnapping, law enforcement, Mount Vernon Criminal Defense Attorney, Rape, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

I 100% volunteered to do it': How bakery worker got DNA to crack 30-year-old murder case - ABC News

In State v. Bass, the WA Court of Appeals held the admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.

BACKGROUND FACTS

In November 1989, 18-year-old Amanda Stavik, a freshman at Central Washington University, returned home to rural Whatcom County to celebrate Thanksgiving with her family. On Friday, November 24, 1989, Stavik decided to go for a run with the family dog, Kyra. Her route took her down the defendant Timothy Bass’s residence. She never returned home.

On Monday, November 27, 1989, law enforcement found Stavik’s naked body in shallow, slow-moving water of the Nooksack River. During the autopsy, Whatcom County medical examiner Dr. Gary Goldfogel found semen in Stavik’s vagina and, based on the sperm count, concluded sexual intercourse had occurred no more than 12 hours before her death. This evidence led the State to conclude that someone had kidnapped and raped Stavik while she was out on her Friday afternoon run and that she had died while fleeing her captor.

Dr. Goldfogel preserved the samples he collected and sent them to the FBI and the Washington State Patrol Crime Lab for analysis. The Crime Lab developed a male deoxyribonucleic acid (DNA) profile from the sperm. The police investigation led to several suspects whom they later excluded when their DNA did not match the DNA in the sperm sample. Eventually, the case went cold.

In 2009, Detective Kevin Bowhay reopened the investigation and began asking for DNA samples from anyone who lived in the area or who may have had contact with Stavik near the time of her death. Over the course of the investigation, Det. Bowhay and his team collected more than 80 DNA samples for testing.

In 2013, Det. Bowhay asked Bass for a DNA sample. When Det. Bowhay indicated he was investigating Stavik’s death, Bass acted as if he did not know who she was, “looked up kind of, um, kind of like he was searching his memory” and said “oh, that was the girl that was found in the river.” Bass told Det. Bowhay that he did not really know Stavik and initially said he did not know where she lived. Bass refused to provide a DNA sample.

Bass’s refusal of a DNA sample raised suspicions. At this time, Bass was working as a delivery truck driver for Franz Bakery. Detective Bowhay reached out to Kim Wagner, the manager of the Franz Bakery outlet store. The detective informed Wagner he was looking for items that Bass might cast off that may contain his DNA.

In August 2017, Ms. Wagner saw Bass drink water from a plastic cup and throw the cup away in a wastebasket in the bakery’s employee break room. She collected that cup and stored it in a plastic bag in her desk. Two days later, she saw Bass drink from a soda can and, again, after he discarded it in the same trash can, she retrieved it and stored it with the cup. Det. Bowhay did not direct Wager to take any items and did not tell her how to handle or package these items.

Wagner contacted Det. Bowhay via text to let him know she had two items Bass had discarded in the garbage. Det. Bowhay met Wagner in the Franz Bakery parking lot, picked up the items, and sent them to the Washington State Crime Lab for analysis. The Crime Lab confirmed that the DNA collected from Bass’s soda can and cup matched the male DNA collected from the semen in Stavik’s body.

The State arrested Bass and charged him with first degree felony murder, rape and kidnapping. In pretrial motions, the trial court denied Bass’s motion to suppress the DNA evidence obtained from items Wagner collected at the Franz Bakery. In 2019, a jury convicted Timothy Bass of all charges.

On appeal, Bass challenged, among other things, the admissibility of DNA evidence linking him to the crime. His argument on appeal was that Wagner acted as a state agent when she collected his discarded items without a warrant.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by saying the Exclusionary Rule – a law that prohibits the use of illegally obtained evidence in a criminal trial – does not apply to the acts of private individuals. However, evidence discovered by a private citizen while acting as a government agent is subject to the rule.

“To prove a private citizen was acting as a government agent, the defendant must show that the State in some way ‘instigated, encouraged, counseled, directed, or controlled’ the conduct of the private person.” ~WA Court of Appeals.

The Court further reasoned that the mere knowledge by the government that a private citizen might conduct an illegal private search without the government taking any deterrent action [is] insufficient to turn the private search into a governmental one. For an agency relationship to exist, there must be a manifestation of consent by the principal [the police] that the agent [the informant] acts for the police and under their control and consent by the informant that he or she will conduct themselves subject to police control.

Consequently, the Court of Appeals rejected Bass’s argument and upheld the trial court’s findings that Ms. Wagner was not an agent at the time she pulled Bass’s cup and soda can from the trash and gave it to police:

“Det. Bowhay and Wagner both testified that Det. Bowhay did not ask or encourage Wagner to look for items to seize and did not tell her what type of items to take. Wagner testified Det. Bowhay did not instruct her to find an item containing Bass’s saliva; she made that assumption based on her husband’s experience in doing an ancestry DNA test and on watching television crime shows. Wagner confirmed that Det. Bowhay did not encourage her to find Bass’s DNA and gave her no guidance in how to do so.” ~WA Court of Appeals.

The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.

With that, the Court concluded that Detective Bowhay did not direct, entice, or control Wagner and Wagner was not acting as a state agent when she retrieved Bass’s cup and soda can from the workplace trash can. “These findings in turn support the legal conclusion that Wagner’s seizure of Bass’s discarded items and the DNA evidence was not the fruit of an unlawful search.” The Court upheld Bass’s convictions.

Please contact my office if you, a friend or family member are charged with a crime involving search and seizure issues. Hiring an effective and competent defense attorney is the first and best step toward justice.

Right to Present a Defense

Bellingham Defense Attorney, Constitutional Rights, ER 401, ER 402, ER 403, Evidence, felony, Firearm, Homicide & Manslaughter, Methamphetamine, Mount Vernon Criminal Defense Attorney, Self-Defense, Sixth Amendment, Skagit County Criminal Defense, Toxicologist, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

1538.5 Motions To Suppress Evidence In California

In State v. Jennings, the WA Court of Appeals held the trial court’s exclusion of a shooting victim’s toxicology report indicating the victim had methamphetamine in his body at the time of his death did not violate the defendant’s constitutional right to present a defense.

BACKGROUND FACTS

On the date of the incident, the defendant Mr. Jennings accompanied his friend Mr. Redman to get Redman’s car from a mobile home in Puyallup, Washington. Redman had been living there, but had recently been kicked out. Drug activity occurred there. Jennings was there to defuse any hostilities between Redman and others at the house. Jennings armed himself with bear spray and a gun.

When they arrived, Jennings was on high alert. He knew violent events had recently occurred there. His friend Mr. Redman got into an argument with Mr. Burton, an individual at the house. Redman had his gun out. Jennings was familiar with the behavior of people who consumed methamphetamine. He realized that both Redman and Burton were high on methamphetamine and acting aggressively.

Burton and Redman argued about Redman’s car and then began to scuffle, wrestling in the foyer of the house. Jennings sprayed his bear spray at them to break up the fight. Burton then turned around and started walking toward Jennings, who backed up. Jennings believed Burton had Redman’s gun.

Jennings feared for his life. He was afraid Burton was reacting violently because he was high on methamphetamine. Jennings fired his gun and hit Burton twice. Burton died at the scene shortly after the shooting and before the ambulance arrived.

Jennings was arrested the next day. He was charged with second degree intentional murder (RCW 9A.32.050(1)(a)), second degree felony murder predicated on second degree assault (RCW 9A.32.050(1)(b)), and unlawful possession of a firearm.

At trial, Jennings claimed at trial that he shot Burton in self-defense. However, the judge excluded the toxicology report showing that Burton had methamphetamine in his body at the time of his death.  A jury found Jennings guilty of second degree felony murder.

Jennings appealed on numerous issues, including arguments that the trial court violated his constitutional right to present a defense by excluding a toxicology report showing that Burton had methamphetamine in his body at the time of his death.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by emphasizing that criminal defendants have a constitutional right to present a defense under the Sixth Amendment. Furthermore, evidence of self-defense must be assessed from the standpoint of the reasonably prudent person standing in the shoes of the defendant, knowing all the defendant knows and seeing all the defendant sees. Finally, the court reasoned that evidence that might impact a defendant’s assessment of the danger presented, like the victim’s prior specific violent acts, is admissible only if known to the defendant when the incident occurred.

“In analyzing the Sixth Amendment right to present a defense, we balance the State’s interest in excluding the toxicology report against Jennings’s need for evidence showing that his subjective fear was reasonable,” said the Court of Appeals.

The Court further reasoned that in this case, the toxicology report did not have extremely high probative value and it did not constitute Jennings’s entire defense. “At trial, Jennings testified that what he observed on the day of the shooting gave rise to his subjective fear . . . his belief that Burton was high on methamphetamine,” said the Court.

“Jennings has not shown that there was a reasonable probability that any additional corroboration from the toxicology report would have materially changed the result at trial,” said the Court. “We hold that even if the trial court abused its discretion by excluding the toxicology report under ER 401 and 402, this ruling was harmless error.”

With that, the Court of Appeals upheld Mr. Jennings’ conviction.

My opinion? Evidentiary and legal issues aside, these facts are terribly tragic. My heart goes out to the friends and families of all who were impacted by this. From a legal standpoint, however, It appears the WA Court of Appeals conducted a basic balancing test under Washington’s Rules of Evidence and determined that the toxicology report of the victim’s meth/blood levels was neither probative nor relevant at trial.

Under Washington’s Rules of Evidence, relevant evidence is defined in ER 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ER 402 provides that evidence which is not relevant is not admissible. Finally, ER 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice.

Here, the Court of Appeals was convinced that Mr. Jennings’ self-defense theory was properly supported by his testimony that he responded in self-defense to the victim’s meth-induced attack. Therefore, no other evidence was necessary to admit more evidence that the victim was high on meth. Jennings’ testimony, by itself, was enough. Any additional evidence on that issue was therefore cumulative, repetitive, unnecessary and potentially prejudicial to the State’s case under ER 403.

Please contact my office if you, a friend or family member face criminal charges and self-defense is a possible defense. It’s important to hire an experienced criminal defense trial attorney who understands the law, the rules of evidence and how both contribute to trial defenses.

Assault or Swim Lesson?

Assault, Bellingham Defense Attorney, Child Abuse, Evidence, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Backlash over 'self-rescue' swimming classes for toddlers | News | The Times

In State v. Loos, the WA Court of Appeals held that although the defendant repeatedly submerged a toddler in a river during an impromptu swimming lesson, there was a lack of evidence proving the defendant’s actions were Assault.

FACTUAL BACKGROUND

Defendant Ms. Loos was babysitting J.T.S., a nonverbal, speech-delayed two-and-a-half-year-old toddler whom she had cared for throughout his infancy. Loos and a friend, Ms. Tetzlaff, decided to take a group of seven children to swim in the Jordan River that day.

While swimming in the river, Tetzlaff became concerned about Loos’s conduct. Tetzlaff testified that Loos picked up J.T.S. and said “it’s time to swim.” For the next minute – which was caught on camera – Loos engaged an impromptu swim lesson and tried teaching J.T.S. a swim technique called “infant self-rescue” by teaching him to float on his back.

In the 51-second video, Loos can be seen holding J.T.S. on his back in the water, and is heard telling him “when we scream, we go under.” After a moment, J.T.S. was submerged in the water for a few seconds and Loos pulled him back up out of the water. Loos repositioned J.T.S. on his back, at which point he began to struggle and tried to pull away.

Loos told J.T.S. again not to scream and he was again submerged. This time, Loos had one hand under J.T.S. and one hand on his chest. At trial, Tetzlaff testified that Loos was “holding him under the water.” T.L. similarly testified he saw Loos push J.T.S. under water, and T.L. could see J.T.S. flailing his arms while submerged. When Loos lifted him out of the water, he came up coughing and screaming. Eventually, Loos ended the swim lesson.

On December 1, 2017, approximately two and a half years later, the State charged Loos with one count of assault of a child in the third degree. During trial, Loos moved to dismiss the charge for insufficient evidence. The trial court denied this motion, although it acknowledged its decision was a “close call.”

The jury found Loos guilty. She appealed on the grounds of insufficient evidence.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals began by saying due process of law requires that the State prove every element of a charged crime beyond a reasonable doubt in order to obtain a criminal conviction.

Furthermore, the court cited State v. Green in saying that in order to evaluate whether sufficient evidence supports a conviction, the court views the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt.

“Dismissal with prejudice is required when there is insufficient evidence at the close of the prosecution’s case in-chief to sustain a charged offense,” said the Court of Appeals.

Next, the court gave the statutory definition of “bodily harm” as “physical pain or injury, illness, or an impairment of physical condition,” And that this pain or impairment must be accompanied by “substantial pain.”

Finally, the Court of Appeals reasoned whether there was sufficient evidence that T.J. suffered substantial pain from the swimming incident. “J.T.S.’s coughing when pulled out of the water caused him some physical pain,” said the Court. “But neither the testimony nor the 51-second video of the incident supports any contention that J.T.S. was unable to quickly and easily eliminate the water from his throat or that he remained in any pain once he did so.”

“The evidence was undisputed that J.T.S. did not require CPR, did not vomit, did not lose consciousness, did not appear to have any swelling of his belly, did not sustain any lung injury, and needed no medical treatment. There is no evidence J.T.S. was inconsolable as a result of any ongoing pain or that any momentary pain he may have experienced lasted for any period of time after he coughed and Loos removed him from the water.” ~WA Court of Appeals

The Court of Appeals concluded by saying that no reasonable jury would find that J.T.S. suffered substantial pain that extended for a period sufficient to cause considerable suffering. With that, the Court of Appeals reversed Loos’s conviction.

My opinion? Good decision. The trial court erred when it denied Ms. Loos’ Motion to Dismiss pursuant to State v. Green. Better known as a Green Motion, this tactical trial maneuver allows defendants to request the judge dismiss criminal charges after the Prosecution has presented its evidence and rested its case.

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.

Victim’s Motive To Testify

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, Evidence, felony, Immigration, Jury Trial, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Ulterior Motive

In State v. Bedada, the WA Court of Appeals held that in a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial judge mistakenly suppressed evidence of the victim’s motive to testify.

BACKGROUND FACTS

After a series of alleged incidents of domestic violence, Mr. Bedada was charged with three counts of assault in the first degree and one count each of felony harassment, witness intimidation, and witness tampering.

All of these charges were primarily supported by the testimony of Mrs. Haile, who was the defendant’s wife.

At trial, the judge excluded evidence of Mr. Bedada’s non-citizen immigration status; and more specifically, that he would be deported if convicted of the crimes. As a result, Mr. Bedada was prevented from cross-examining Haile and revealing a motive for her to fabricate her testimony.

Bedada was convicted on all charges except two counts of assault in the first degree. He appeals on the argument that the judge’s decision to suppress his citizenship status was erroneous and without merit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals explained that the Sixth Amendment to the United States Constitution and article I, section 22 of Washington’s constitution guarantee a defendant’s rights to confront the witnesses testifying against him.

Furthermore, the Court of Appeals said that under Evidence Rule (ER) 401, evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Also, under ER 403,  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Finally, the court explained that under ER 413(a), evidence of immigration status may only be admitted when the party seeking to admit the evidence follows the procedure set forth under the rule. ER 413(a) states,

“In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607.” (emphasis supplied).

The court analyzed the aforementioned rules and ultimately found that plainly, evidence of a motive to fabricate on the part of Mrs. Haile— whose testimony was the principal evidence supporting every charge against Bedada — could affect a fact finder’s analysis as to whether the facts alleged by Haile were true.

“No party disputed the reliability of evidence of Bedada’s noncitizenship,” said the court. “To the extent that the trial court engaged in a balancing of the probative value and prejudicial effect of the proffered evidence, it unfortunately omitted or misapplied several critical factors necessary to a proper analysis.”

Notably, the Court of Appeals also took issue that neither the Prosecutor nor the trial judge identified any prejudicial effect — specific to this case — that might result from the introduction of evidence of Bedada’s immigration status:

“The State’s assertion did not identify, with any particularity, the prejudice that the State would encounter beyond a generalized concern of immigration as a sensitive political issue. The lack of a specific, as opposed to merely a general, prejudicial effect is significant.”

Finally, the Court found it important that Mrs. Haile was the primary witness against Bedada in every charge against him.

“She was the State’s most important witness,” said the Court. “Demonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.

For all of these reasons, the Court of Appeals ruled that the trial court’s decision to exclude evidence of Mr. Bedada’s immigration status constituted an abuse of discretion. Consequently, the Court reversed Mr. Bedada’s convictions.

My opinion? Good decision. Although I sympathize with the victim’s plight, it is wrong for trial courts to suppress evidence of a victim’s ulterior motives for testifying. it is powerful, relevant and probative evidence establishing motive that the victim knew that the defendant would be deported if she testified against him. Defense counsel did a great job establishing a record for appeal.

Please contact my office if you, a friend or family member are non-citizens charged with crimes, especially deportable offenses like Domestic Violence. Hiring an effective and experienced criminal defense attorney is the best step toward justice.

Body Camera Evidence Admissible

Assault, Bellingham Defense Attorney, Body camera, Evidence, Firearm, Mount Vernon Criminal Defense Attorney, police, Privacy, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , , ,

Image result for body worn camera

In State v. Clayton, the WA Court of Appeals held that police body camera evidence is admissible at trial. It does not violate Washington’s Privacy Act because police interactions with a suspect and witnesses or victims of the crime are not private conversations.

BACKGROUND FACTS

The charges arose from a visit by law enforcement to a Spokane home. On the evening in question, multiple officers responded to the residence following a report of shots being fired. Mr. Clayton let officers in the residence and consented to a search. There were six people in the residence in addition to the officers who entered. Three officers had active body cameras recording the investigation, but none of the residents were advised of that fact.

An officer discovered two revolvers in a dresser and also observed bullet holes in a couch, wall, and the floor. Upon learning that Mr. Clayton was ineligible to possess the revolvers, officers arrested him for unlawful possession of the weapons. The prosecutor charged two counts of unlawful possession of a firearm based on the October arrest. Clayton’s girlfriend told officers that one month earlier, Clayton had fired a shot in the apartment that struck the couch on which she was sitting.

Ultimately, the prosecutor charged Clayton with one count of second degree assault and one count of unlawful possession of a firearm for the September incident, as well as two counts of unlawful possession of a firearm for the two weapons recovered in October.

After conducting a CrR 3.6 hearing on a defense motion to suppress the recordings, the court permitted the video evidence only to the point where the officer discovered the guns and arrested Clayton. Body camera footage from one of the officers was played for the jury at trial. The jury acquitted Clayton on the assault charge, but convicted him of all three
unlawful possession charges.

COURT’S ANALYSIS

On appeal, Mr. Clayton argues that the police body camera recording was made in violation of the “Privacy Act,” rendering the evidence inadmissible.

The Court of Appeals  ultimately ruled, however, that because the police interaction with Mr. Clayton and his family was not a private conversation, there was no error.

The Court described how the Privacy Act prohibits recording a private communication unless all parties to the communication consent. Consequently, any information obtained from unknown recordings is inadmissible in court.

More specifically, a communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable.  Among other things, the subject matter of the calls, the location of the participants, the potential presence of third parties, and the roles of the participants are relevant to whether the call is private.

When it comes to body-worn cameras, law enforcement may record people who have been arrested upon (i) informing the person that a recording is being made, (ii) stating the time of the beginning and ending of the recording in the recording, and (iii) advising the person at the commencement of the recording of his or her constitutional rights. In addition, (iv) the recording may be used only for valid police or court activities. Finally, the person must be told that he or she is being recorded. However, there is no requirement that the individual consent to the recording.

In short, the Court reasoned that conversations with uniformed, on-duty law enforcement officers are typically not private conversations.

“People understand that information they provide to officers conducting an investigation is going to turn up in written police reports and may be reported in court along with the observations made by the officers . . . The conversations took place in his apartment, a place where he had some subjective expectation of privacy, but they also occurred in the presence of five others. The subject matter of the visit—a report of a gun being fired and subsequent search for the weapon—was not a private one.”

Consequently, the trial court did not err in denying the defendant’s motion to suppress and upheld his convictions.

Please read my Search & Seizure Legal Guide titled contact my office if you, a friend or family member face criminal charges and the evidence involves recordings from police body-worn cameras. Hiring an effective and competent defense attorney is the first and best step toward justice.