Category Archives: felony

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

Constitutional Rights, Due Process, Duress Defense, felony, Homicide & Manslaughter, Interrogation, law enforcement, police, Privacy, Search and Seizure, Self-Incrimination, United States Supreme Court, , ,

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.

Yes, Crime Is Down . . . But For How Long?

Assault, Domestic Violence, felony, Homicide & Manslaughter, Rape, Studies, Violent Crime, Whatcom County Criminal Defense, , ,

NRA-ILA | Stemming the Tide: Violent Crime Decreased in First Six Months of 2017

My opinion?  That’s good news.  It debunks any theories that economic recessions leads to increased crime rates.  I, for one, haven’t seen a dramatic increase in crime – except for maybe low-level street drugs like heroin – since the recession hit.  Still despite the successful efforts of law enforcement’s endeavors, we should not be too quick to pat ourselves on the back.

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. Sublett: Defendant’s Right to be Present at Trial DOES NOT Extend to Questions Submitted by Jury and Answered in Judge’s Chambers

Constitutional Rights, Due Process, felony, Homicide & Manslaughter, Washington Supreme Court, , ,

A Judge's Personality Comes out in the Chambers through Artifacts and Collections

In State v. Sublett, the WA Court of Appeals held that an in-chambers conference held by the trial judge in response to a juror’s question did not violate the defendant’s his right to an open and public trial. In general, in-chambers conferences between the court and counsel on legal matters are not critical stages of the proceedings except when the issues involve disputed facts.

A jury entered verdicts finding co-defendants Michael Sublett and Christopher Olsen guilty of first degree murder.  Sublett and Olsen appealed, asserting that the trial court violated their public trial rights and their right to be present by holding an in-chambers conference to address a question submitted by the jury during its deliberations and that the trial court violated their due process rights by refusing to answer the jury’s question.

The Court reasoned that the Sixth Amendment guarantees criminal defendants the right to a public trial.   However, the court also determined that “[a] defendant does not . . . have a right to a public hearing on purely ministerial or legal issues that do not require the resolution of disputed facts.”

Here, the trial court’s in-chambers conference addressed a jury question regarding one of the trial court’s instructions.  This was a purely legal issue that arose during deliberations, and did not require the resolution of disputed facts.  Thus, the defendants’ right to a public trial did not apply in this context.

More important, questions from the jury to the trial court regarding the trial court’s instructions are part of jury deliberations and, as such, are not historically a public part of the trial.  Because the public trial right does not apply to a trial court’s conference with counsel on how to resolve a purely legal question  which  the jury submitted during its deliberations, we hold that the trial court did not violate the appellants’ public trial right by responding to the jury’s question in writing.

The court further reasoned that because the in-chambers conference held in response to a jury question was not a critical stage of the proceedings, the trial court did not violate the appellants’ right to be present.  A “critical stage” is one where the defendant’s presence has a reasonably substantial relationship to the fullness of his opportunity to defend against the charge.   But in general, in-chambers conferences between the court and counsel on legal matters are not critical stages of the proceedings except when the issues involve disputed facts.

The in-chambers conference here was not a critical stage of the proceedings because it involved only the purely legal issue of how to respond to the jury’s request for a clarification in one of the trial court’s instructions.  Accordingly, the appellants’ right to be present did not apply in this context.

My opinion?  Shady.  I’ve tried cases where jurors asks/submits questions to the judge while they deliberate.  Typically, the judge reads the question on the record, and in the defendant’s presence.  The attorneys and judge either formulate an agreed answer the question or choose to not answer the question.

In my mind, this is an important stage of the proceedings.  jurors decide guilt and innocence based upon the answer to the question!  How is this not important?  Why shouldn’t the defendant be present to hear the question and answer(s)?

Again, shady.  this decision flies in the face of the WA Supreme Court’s State v. Paumier, a case which I blogged about earlier this month.

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.

Graham v. Florida: Court Strikes Down “Cruel & Unusual” Sentencing on Minor

Burglary, Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Juvenile, United States Supreme Court, , ,

What is Cruel and Unusual Punishment? - YouTube

In Graham v. Florida, the U.S. Supreme Court held it unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on “cruel and unusual” punishment.

Petitioner Graham was 16 when he committed armed burglary and another crime.  under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt.  Subsequently, the trial court found that Graham violated the terms of his probation by committing additional crimes.  The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the Burglary.  Because Florida abolished its parole system, the life sentences left Graham no possibility of release.  He challenged his sentence under the Eighth Amendment’s Cruel and Unusual Punishment Clause.

The U.S. Supremes sided with Graham, and reasoned the inadequacy of penological theory to justify life without parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that Graham’s sentence was cruel and unusual.  Moreover, defendants who do not kill, or foresee that life will be taken are less deserving of such punishments than are murderers.

Finally, the court reasoned that serious nonhomicide crimes may be devastating in their harm, but in terms of moral depravity and the injury to the person and to the public, they cannot be compared to murder in their severity.

My opinion?  The U.S. Supremes made the right decision.  It seems Draconian to impose a life sentence on a minor who committed a non-homicide crime.  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.

State v. Paumier: Court Upholds the Right to Public Trial & Self-Representation

Burglary, Constitutional Rights, Due Process, felony, Jury Trial, Theft, Washington Court of Appeals, , ,

The Possibilities and Pitfalls of Self-Representation for Artists - RedDotBlog

In State v. Paumier, the WA Court of Appeals reversed the defendant’s convictions because the trial court improperly (1) excluded public citizens from a portion of his trial, and (2) denied his right to represent himself.

Mr. Paumier was charged with Burglary and Theft.  Jury selection involved questioning jurors in chambers and recording their responses.  The public was not allowed to watch jury selection.  The trial court stated at the outset that potential jurors who preferred to answer questions privately to avoid possible embarrassment would be taken into the judge’s chambers.

Several jurors indicated during the course of voir dire that they preferred to answer certain questions in chambers.  The judge and the parties questioned five jurors in chambers, recording the jurors’ responses. Jury selection was completed that same day.

The following day, the trial court permitted the State to amend the information.  Paumier then pleaded not guilty and asked to represent himself, stating:

“I just don’t feel like a — I feel like there’s [sic] things about the trial getting this far that it shouldn’t have.  And I feel that my attorney should have spoke [sic] up for me instead of getting pissed off at me in court.  And I just don’t feel like he’s doing his job like he should.  I don’t feel it should have gotten this far, and I’d just rather present my, you know, case myself.”

His request was denied because the lower court decided that it came too late.

The WA Court of Appeals reasoned, however, that Paumier’s right to a public trial was violated when the court allowed the jurors to be questioned privately in chambers.  The guaranty of open criminal proceedings extends to voir dire.  Additionally, the recent U.S. Supreme Court’s Presley v. Georgia makes it clear that court room closures should be rare and the court must consider alternatives prior to closing the court room.

The trial court also abused its discretion when it denied the defendant his request to represent himself at trial.  Here, there was no request for continuance, and the defendant’s request was clear.  There was no evidence that trial would have been delayed, or that granting his request would have impaired the administration of justice.

 My opinion?  Good decision.  Kudos to the defendant for stating, on the record, his preference to represent himself after the judge and attorneys conducted voir dire in chambers, and away from the public eye.  Mr. Paumier correctly followed his instincts.  I hope Mason County learns a lesson.

 

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. Hall: WA Supremes Determine The “Unit of Prosecution” For Multiple Charges of Witness Tampering.

Assault, Burglary, Constitutional Rights, Due Process, felony, Legislation, Unit of Prosecution, Violent Crime, Washington Supreme Court, , ,

Freehold NJ Witness Tampering Lawyer | Asbury Park NJ Witness Tampering Charge Attorney

In State v. Hall, the WA Supreme Court decided that an incarcerated defendant’s numerous phone calls to a witness constituted only one charge of Witness Tampering.

Defendant Mr. Hall threatened his girlfriend and her lover with a gun after finding them together in her apartment.  He flees the scene and drives away in a car owned by his friend, Desirae Aquiningoc.  Police later confront Aquiningoc about lending her car to Hall.  She said that Hall was her boyfriend, that he lived with her, that he had borrowed her car on that January 14 to visit his mother.  Later, police find Hall at his home and arrest him.

Based on what happened at Salazar’s apartment, Hall was charged with Burglary First Degree Burglary and Assault Second Degree and held in jail pending trial.  While in jail, Hall attempted to call Aquiningoc over 1,200 times. During those phone calls, some of which were played for the jury, Hall attempted to persuade Aquiningoc that his legal woes were her fault and that she had a moral obligation not to testify or to testify falsely.

The phone calls were recorded.  The State charged Hall with four counts of Witness Tampering.  Hall goes to trial.  The trial judge treated each count of Witness Tampering as a separate unit of prosecution.  Hall appeals.  The case winds its way to the WA Supreme Court.

The legal issue was whether Witness Tampering is a continuing offense or whether it is committed anew with each single act of attempting to persuade a potential witness not to testify or to testify falsely.

The WA Supremes reasoned that a “unit of prosecution” can be either a single act or a course of conduct.  Here, the plain language of the statute supports the conclusion that the unit of prosecution is the ongoing attempt to persuade a witness not to testify in a proceeding.  They further reasoned that, in the alternative, each conversation is a separate crime and, in this case for example, could lead to as many as 1,200 separate crimes.

“Such an interpretation could lead to absurd results, which we are bound to avoid when we can do so without doing violence to the words of the statute,” said the Court.  “It seems unlikely the legislature intended that a person could be prosecuted for over a thousand crimes under the circumstances presented here.”  Consequently, the Court held, under the facts of this case, Hall committed one crime of Witness Tampering, not three.

My opinion?  Makes sense.  It DOES seem absurd to stack multiple charges in this case.  After all, a unit of prosecution can either be a single act or a course of conduct.  It seems more realistic to view Halls many calls as a continuing course of conduct.  You can’t label the calls as single acts because he didn’t change his plans, motive, or modus operandi.

Good decision.

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. Jones: Rape Shield Statute vs. Defendant’s Right to Testify

Constitutional Rights, Due Process, felony, Jury Trial, Rape, Sex Crimes, Washington Court of Appeals, Washington Supreme Court, , ,

What Is A Rape Shield Law? | The Defence Group

In State v. Jones, the WA Supreme Court held that the Rape Shield Statute does not stop a defendant from offering evidence or cross-examining a victim about the events on the night of the alleged sexual encounter, including the victim’s sexual conduct with other individuals during a wild sex party.

Defendant Mr. Jones was charged with first and second degree rape after his niece, K.D., claimed that Jones put his hands around her neck and forcibly raped her.  At trial, the jury acquitted Jones of first degree rape but could not reach a decision on second degree rape.  Jones was tried again for second degree rape along with the aggravating factor of being an individual in a position of trust to the victim.

Jones wanted to present evidence that K.D. consented to sex during an all-night sex party.  The party included one additional woman and two additional men, cocaine and alcohol.  During this party, K.D. consented to sex with all three men (which included Jones).  The judge, citing the Rape Shield Law, would not allow Jones to introduce such evidence because it was only being introduced to attack K.D.’s credibility.

Furthermore, during the trial, the prosecutor noted that Jones was compelled to give a DNA sample (did not do so voluntarily) and that he refused to clear up matters with the police.  At the end of trial, the judge backtracked a little and claimed that it allowed Jones to present evidence that the sex was consensual (but without mentioning the sex party).   Jones was convicted and appealed.  Jones claimed that the trial court erred when it refused to allow him to present evidence of the sex party and for the prosecutor’s inappropriate comments with respect to speaking with police and giving a DNA sample.

The Court of Appeals agreed with the trial court, but the Washington Supreme Court reversed.

First, the court reasoned that the trial court violated Jones’ 6th Amendment rights by refusing to allow Jones testify about the sex party.  “Jones’s evidence, if believed, would prove consent and would provide a defense to the charge of second degree rape.”  Furthermore, since no State interest can possibly be compelling enough to stop the introduction of evidence of high probative value, the trial court violated Jones’ Sixth Amendment rights when it barred his testimony.

Second, the Court held the Rape Shield Statute did not apply.  Washington’s rape shield law provides:

Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection (3) of this section, but when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when the past behavior is material to the issue of consent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense.

Here, the Court decided the Rape Shield Statute protects victims from testifying about past sexual behavior.  In this case, however, Jones was attempting to introduce evidence of present sexual behavior.  Thus, to deny such evidence under the rape shield law would be to read out the term past.   Furthermore, since the evidence that Jones sought to be introduced involved Jones’s defense and version of what occurred the night of the crime, the denial of such evidence was NOT harmless error.  Jones is entitled to a new trial.

My opinion?  Under the circumstances, the court made a well-reasoned decision.  Their interpretation of the Rape Shield Statute appears correct: although one cannot admit evidence of the victim’s past sexual history, the statute does not prevent present sexual history from being admitted into evidence.  This evidence seems especially relevant when the victim is engaged in exploits in the manner described in this case.  Good decision.

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

Padilla v. Kentucky: Noncitizens Entering Guilty Pleas + Bad Legal Advice = DEPORTATION!

Constitutional Rights, Drug Offenses, Due Process, felony, Immigration, United States Supreme Court, , ,

Will a Felony Get You Deported - JobsForFelonsHub.com

In Padilla v. Kentucky, the U.S. Supreme Court held that Defense attorneys representing aliens charged with crimes have a constitutional obligation to tell the client that a guilty plea carries a risk of deportation.

Mr. Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to Drug Offenses in Kentucky.  He claimed his attorney not only failed to advise him of this consequence before he entered the plea, and also told Padilla not to worry about deportation since he had lived in this country so long.  Padilla says he would have avoided pleading guilty and gone to trial had he not received bad advice from his attorney.

In deciding the issue, the U.S. Supremes applied the two-part test from Strickland v. Washington, 466 U.S. 668.  The test analyzes whether (1) counsel’s legal advice fell below an objective standard of reasonableness, and (2) there exists a reasonable probablity that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.

Here, Padilla proved his defense attorney gave misleading advice.  The Supremes reasoned that defense attorneys MUST inform a client whether his plea carries risk of deportation.  Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  They further reasoned that, recently, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences.  The importance of accurate legal advice for noncitizens has never been more important.

My opinion?  Good decision.  Mr. Padilla was rightfully granted relief for his attorney’s bad legal advice.  Under the law, immigrants can be deported if they are convicted of crimes which expose them to serving a year or more jail time.  Practically speaking, this applies to all gross misdemeanors and felonies.  Simple misdemeanors are exempt because their exposure is typically only 90 days in jail.

Padilla warns defense attorneys to correctly advise immigrant clients of the consequences of entering guilty pleas.

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.

How To Protect Your Rights On Facebook

Constitutional Rights, Due Process, felony, law enforcement, misdemeanor, police, Pretrial Investigations, Privacy, Probable Cause, Search and Seizure, Search Warrant, Social Media, , ,

How to protect your privacy from Facebook | ZDNet

Think twice before posting those party pictures on Facebook.

The LaCrosse Tribune wrote an article on a University of Wisconsin-La Crosse student named Mr.  Bauer. He was popular with nearly 400 friends on Facebook. He got an offer for a new one about a month ago. “She was a good-looking girl. I usually don’t accept friends I don’t know, but I randomly accepted this one for some reason,” the 19-year-old said.

He thinks that led to his invitation to come down to the La Crosse police station, where an officer laid out photos from Facebook of Bauer holding a beer — and then ticketed him for underage drinking.

He was among at least eight people who said Wednesday they had been cited for underage drinking based on photos on social networking sites.

*       *       *       *       *       *      *       *       *       *       *       *       *       *       *       *       *

My opinion?  First things first, there’s certainly nothing good to be said about these sorts of law-enforcement tactics. Police always have better things to do than roam the Internet looking for pictures of naughty college kids and there’s no excuse for invading people’s privacy to make a couple petty arrests. The very notion of officers assuming fake identities on Facebook is just inherently repugnant and serves only to destroy their relationship with the very people they’re supposed to be protecting.

That said, it’s also worth keeping in mind that you have a 5th Amendment right not to post incriminating pictures of yourself on Facebook. It’s just an unfortunate reality that police do creep around on the web an awful lot for no particularly good reason and you never know where their prying eyes might land. This means you should think about what you’re posting, and keep an eye out for other people incriminating you as well. Simply un-tagging yourself from a couple questionable photos could be all it takes to save you a huge hassle down the road.

In my experience, this issue goes beyond what may or may not have taken place in one photo on one particular night. Seriously, I’ve known – and heard of – people who got passed over for a job because their prospective employer found unflattering photos online. Worse, I know of instances in which online photos were used to attack someone’s character in an otherwise unrelated criminal case. The bottom line is that posting pictures online has much broader implications than simply showing your friends what a kick-ass weekend you had.

Finally, remember that if you’re ever confronted with a photo that shows you in a compromising situation, you don’t have to incriminate yourself. Rarely will the photo itself be sufficient evidence to convict you of anything. What they’re really looking for is the confession that they hope will come spilling out of your mouth after they show you what they’ve got. If you keep your mouth shut and ask for a lawyer, chances are they’ve got nothing.

BTW, I’m not offering legal advice by posting this subject matter.  It’s offered for educational purposes only.   😉

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. Smith: Defining the Hardship of Obtaining an Impartial “Cross Section” of the Jury Community

Constitutional Rights, Due Process, felony, Firearm, Homicide & Manslaughter, Jury Trial, Race & Law, United States Supreme Court, , ,

Jury Selection: How Social Media is Changing the Game | Richmond Journal of Law and Technology

In Berghuis v. Smith, the U.S. Supreme Court held that a Michigan state court did not create an unfair bias in jury selection for a murder trial. case.

The defendant was an African-American man charged with Second Degree Murder and Felony Firearm Possession.  He goes to trial.  At voir dire, the jury panel was composed of 60 and 100 individuals, only 3 of whom, at most, were African American.  At that time, African-Americans constituted 7.28% of the County’s jury-eligible population, and 6% of the pool from which potential jurors were drawn.  An all-white jury was selected.  The trial court rejected Smith’s objection to the panel’s racial composition.  The all-white jury convicted Smith of the crimes.  He was sentenced to life in prison.

For those who don’t know, the 6th Amendment gives criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community.  The issue was whether, under the circumstances, the defendant’s right was violated by the all-white jury’s conviction.

The Court reasoned that a defendant raising a violation of the “fair-cross-section” requirement of the Sixth Amendment must establish that any existing underrepresentation was due to “systematic exclusion” of the group in the jury-selection process. Practices, such as excusing people who merely alleged hardship or simply failed to show up for jury service, reliance on mail notices, a failure to follow up on nonresponses, the use of old addresses, and the refusal of police to enforce court orders for the appearance of prospective jurors, are insufficient to establish “systematic exclusion.”  Consequently, the U.S. Supremes upheld Smith’s conviction.

My opinion?  Pollyannaish as it sounds, this opinion shows why it’s SO IMPORTANT for citizens to show up for jury duty.  Juries are the last bastion of objective, impartial justice.  We all experience moments when we are wrongfully accused; not because we intentionally did something wrong, but merely because we look/think/act outside the norms of the majority.

That’s exactly why juries MUST reflect a fair cross section of the community.  That “cross section,’ however, can only happen if YOU – the citizen – do your part and answer the call to serve on a jury.  Your lone perspective adds depth.  Your life experience – which, amazingly, might be similar to the defendant’s/petitioner’s/plaintiff’s – adds insight to their arguments.

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.