Category Archives: felony

US Supremes Rule Convicted Defendants Have No Right To Test DNA

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

How Reliable Is DNA Evidence? | The Marshall Defense Firm

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

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

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

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

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

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

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

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

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

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

State v. Garvin: WA Supremes Held “Squeeze Search” Unlawful

Constitutional Rights, Drug Offenses, felony, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Terry Stop, Traffic Infractions, Washington Supreme Court, , ,

Know Your Rights: Stop-and-Frisk | ACLU of DC

In State v. Garvin, the Court held that police officers cannot “squeeze” a defendant’s pockets to determine the nature of objects in the pocket.

An officer pulled Anthony Garvin over for a traffic infraction. When he noticed a knife on the seat next to Garvin, the officer ordered Garvin out of the car and conducted a search for additional weapons. In the process he discovered a baggie of methamphetamine. At trial the officer testified, “We don’t really pat anymore. It’s more of a squeeze search.”

Garvin moved to suppress the evidence seized, and the trial court denied the motion. He was convicted of possession of a controlled substance, and Court of Appeals upheld the conviction.  The WA Supreme Court granted review.

The court reasoned that the officer was not allowed to manipulate objects within the clothing, and his “squeeze method” exceeded the scope of a valid frisk under the “stop and frisk” rule articulated in Terry v. Ohio, 392 U.S. 1 (1968).  The court added, “Without probable cause and a warrant, an officer is limited in what he can do.  He cannot arrest a suspect, he cannot conduct a broad search.”

My opinion?  Yaaaay!!

Many clients get arrested because police officers obtain evidence unlawfully.  It’s an outrage!  This case is beautiful.  I can’t wait to argue a Garvin motion in my future attempts to suppress unlawfully obtained evidence.   🙂

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.

Voting Rights Restored!

ACLU, Constitutional Rights, felony, Legislation, Race & Law, Voting Rights, , ,

Voter Information for WA State Residents Who Are or Have Been Incarcerated, Unhoused, Disabled, Need Language Assistance, and more | The Church Council of Greater Seattle

Thank you to all who took action on HB 1517!  This important measure will automatically restore the right to vote to citizens who were entangled with the criminal justice system.

Governor Chris Gregoire signed the bill into law on Monday, May 4, 2009.  The new law will reform Washington’s convoluted and unfair system for restoring voting rights.

Washington now becomes the 20th state in the last decade to ease voting restrictions for people with criminal histories who are living, working and raising families in the community.  Our victory is part of a nationwide movement to assure that our democracy reflects the voices of American citizens.

Let freedom ring.

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. Ramos: Excellent Separation of Powers Case

Constitutional Rights, Due Process, felony, Legislation, Sex Crimes, Washington Court of Appeals, , ,

Theory Of Separation Of Powers - Political Science

In State v. Ramos, the defendant was convicted in 1993 of sexual exploitation of a minor.  At the time, Washington did not require sex offenders to register with the State.   The law was changed after Ramos’ release and he registered in 2001.  The law changed again to require Level II sex offenders to report in person every 90 days.  Ramos failed to do so.  he was prosecuted for failing to report.

The WA Court of Appeals held that the authority to define crimes and set punishments rests squarely with the legislature.  Not the prosecutor, not the sheriffs, but the legislature.  It reasoned it is unconstitutional for the legislature to transfer its power to others.  Because the sex offender reclassification statute does not provide any guidance to local law enforcement agencies, Ramos’ delegation was improper, and his conviction cannot stand.

My opinion?  Great decision.  It reaffirms the debate regarding the wrongful  application of newly formed criminal laws.  In Washington, defendants can only be charged with violating laws in existence  at the time of arrest.  Unless a newly formed statute specifically provides for retroactive application, defendants cannot be found to have violated the new statute.  It isn’t fair.  Unconstitutional.  Again, great 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. Dingman: Trial Court Erred in Denying Defendant’s Discovery Requests

Constitutional Rights, Discovery, Due Process, felony, Forensics, Jury Trial, Pretrial Investigations, Search and Seizure, Theft, Washington Court of Appeals, , ,

What Is A Discovery Request? Texas Rules of Civil Procedure

In State v. Dingman, the WA Court of Appeals Court held the State is obligated to disclose all tangible objects in its possession which were obtained from or belonged to the defendant at the time of arrest.

Here, the authorities seized Mr. Dingman’s computers while investigating him for Theft and Money Laundering.  The State created mirror image copies of the computers’ hard drives using a program called EnCase.  Dingman asked for direct access to his computer.  The Court refused, and instead ordered copies be provided using Encase, a program the defense neither had not knew how to use.

Applying court rules/procedures, the WA Court of Appeals Court held the State is obligated to disclose all tangible objects in its possession which were obtained from or belonged to the defendant.  The computer hard drives were tangible objects obtained from the defendant.  Defense counsel should be allowed to examine the hard drives.  Therefore, it was error not to give the defense access to the hard drives.

My Opinion?  Great decision. Division II gave an excellent decision regarding the violation of a defendant’s right to review evidence. The defendant should ALWAYS have access to materials the prosecutor wants to use at trial.  Indeed, it’s a blatant violation of a defendant’s Constitutional rights to deny access.  Providing evidence to the other side is also, quite simply, a professional courtesy.

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.

 

Drug Courts Huge Success

Dismissal, Drug Court, Drug Offenses, felony, Jail, Probation, Sentencing, Studies, Whatcom County Criminal Defense, , ,
What You Need to Know About Drug Court and Addiction
A National Study found that Drug Courts are widely successful. Here’s a summary of the study’s findings:
RECIDIVISM

Graduates of drug courts are less likely to be rearrested than persons processed through traditional court mechanics. Findings from drug court evaluations show that participation in drug courts results in fewer rearrests and reconvictions, or longer periods between arrests.

COST SAVINGS

Nationwide, drug courts save taxpayer dollars compared to simple probation and/or incarceration, primarily due to reductions in arrests, case processing, jail occupancy and victimization costs. While not all persons diverted to drug court would have otherwise been sentenced to prison, for those individuals who are incarcerated, the average annual cost is estimated to be $23,000 per inmate, while the average annual cost of drug court participation is estimated to be $4,300 per person.

THE EFFECT OF SANCTIONS

The study showed that Drug Courts which reward/sanction all levels of good/bad behavior recognize there is value in incremental progress toward the goal of abstinence.

A participant who faithfully makes all court appearances and meets the obligations of the court may be rewarded with an acknowledgement of accomplishment.  On the other hand, developing a flexible, graduated sanction program is a crucial contributor to a successful drug court program, because even those who are eventually successful in drug court tend first to relapse, warrant, and violate other program rules.

The study concluded that sanctioning should be seen as an opportunity to adjust treatment to limit subsequent relapse, rather than the first step on the path to an eventual termination of drug court participation and a likely sentence to custody.

ROLE OF THE JUDGE

One of the unique aspects of the drug court model is the frequency with which judges interact with participants. The relationship is less formalistic than in traditional courtrooms and is individualized based on the judge’s supervision of an individual’s progress.  The goal is partnership, not sentencing. 
My opinion?  I’m a HUGE fan of drug court!  First, it’s a great negotiating alternative for my clients facing drug charges IF the prosecutor’s charges are fairly strong, evidence is unlikely to be suppressed, and a jury would probably find the offender guilty. 
Second, it’s impossible to treat drug addiction with jail or prison sentences.  Period.  Once released, the offender may likely continue using drugs.  Drug Court strikes at the root of the problem by addressing the drug addiction itself.  Finally, the program forces offenders to stay focused on treatment.  The State monitors treatment.  If offenders fail, they may face heavy consequences and get kicked out of Drug Court.
Drug Court should be implemented to a greater degree than it already is.  It presents a win/win situation for everyone: the public, courts, prosecutors, and ultimately the offender.
Please contact my office if you, a friend or family member face a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

 

Kitsap Jury Acquits Medical Marijuana Defendant

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, Legislation, marijuana, Privacy, Search Warrant, , ,

Pennsylvania MMJ Patients Face Choice: Cannabis or Guns? | Leafly

A medical marijuana patient being prosecuted in Kitsap County Superior Court for drug trafficking was found not guilty on Tuesday morning, after a jury ruled that his use of the drug was within the law.

The jury deliberated for approximately two hours prior to its ruling.

The prosecution alleged that the crop was being sold commercially, and that the Olsons were hiding behind medical marijuana laws as cover for a drug operation.

Defendant Bruce Olson decided to go to trial as the law had changed and he was advised that he had a better chance of acquittal.

The trial was attended by a floating group of medical marijuana activists, from patients to political activists. Several of them noted that it was rare for such cases to go to trial, as defendants usually enter a plea.

These activists filled the courtroom throughout the trial, with no visible support for the prosecution’s position.

Olson, who turns 55 on Wednesday, maintained a subdued manner throughout the trial, and barely talked when he was in the courtroom. This changed on Tuesday, when he was laughing and joking with his attorney prior to the verdict’s reading.

When it was announced Olson blurted “thank you, thank you you guys” to the jury, prompting Superior Court Judge Leila Mills to repeat her admonition to stay quiet until the jury was released.

“As a businessman I am really discouraged at all the money that was spent on this trial . . . It was a waste, and a lot of people who have seen the trial and are in business are wondering why I was prosecuted.” ~Defendant Bruce Olson

My opinion?  Great job, jury.  The government should not tamper in the affairs of defendants who are licensed to possess marijuana.  Period.   I welcome the day when marijuana will be legalized.  Let’s face it: the “War on Drugs” has failed.  Marijuana should not be demonized as a Gateway Drug.  Legalize it!

State v. Brooks: WA Court Rightfully Dismisses Criminal Charges Because Prosecution Withheld Evidence

Constitutional Rights, Discovery, Dismissal, Due Process, Evidence, felony, Jury Trial, Prosecutorial Misconduct, Washington Court of Appeals, , ,

Prosecutorial Misconduct / Mishaps In FCPA Cases - FCPA Professor

In State v. Brooks, the WA Court of Appeals dismissed a criminal case due to prosecutorial mismanagement and withholding  of evidence.

My opinion?  It’s about time!  The prosecutors, God bless ’em, usually have the upper hand with judges.   Typically, judges won’t sanction prosecutors or dismiss cases due to prosecutorial misconduct, mismanagement, or withholding of evidence (trust me, I’ve tried).

This opinion opens the door for judges to exercise more discretion in dismissing poorly managed cases.  In this case, the prosecutor withheld a a 60-page victim statement from the defense until the day of trial.   Unbelievable!

Imagine this: your attorney has geared up for trial.  They agonizingly prepped the case from start to finish.  Attorney has their theme, theory, motions in limine, opening statement, closing statement, voir dire questions, direct exam questions, and cross exam questions fully prepared before entering the court.  All of the sudden, prosecutor plops a huge pamphlet of papers in front of defense attorney’s face.

“Sorry you have no time to review this new statement, but go ahead and cross examine my witness on this.”  Unbelievable.  We have no idea what the statement contains.  If admitted to evidence, this unread statement could, by itself, utterly throw your case theory out the window.

The Court of Appeals has boldly decided these “Hide the Ball” shenanigans are going to get cases dismissed.  That governmental mismanagement materially affects a defendant’s right to a fair trial.  Good.  I understand that prosecutors work hard.  Their caseloads are huge.  But hey, let’s be real, people’s lives and liberty are at stake.  Constitutional rights are at risk.  Consequently, cases should be dismissed when poorly handled and/or mismanaged.

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.

Retired Judge Says It Is Time To End War On Marijuana

Bellingham, Bellingham Defense Attorney, Drug Offenses, felony, marijuana, Race & Law, Studies, Whatcom County Criminal Defense, , ,

The Death Penalty in Washington State

Here’s an excerpt of on Op-Ed by retired Whatcom County Superior Court Judge David A. Nichols:

“It is my fervent belief that this state and nation must come to recognize that continuing to treat drug users as criminals perpetuates an evil that rewards the drug sellers and corrupts our society. Until we honestly and appropriately deal with the entire drug issue as a health problem analogous to tobacco or liquor, and not as a ‘war’ we cannot win, we will continue to reap the whirlwind of huge world-wide illegal drug profits which are costing us billions, threatening the stability of nations, causing soaring crime rates and diverting money which is sorely needed elsewhere.” ~ Judge David A. Nichols

Judge Nichols also says that if we ever want to stop the craziness and futility of our present anti-drug approach, we must de-criminalize possession and use of all drugs. Education, addiction treatment and state regulation need to replace arrests, trials, jail sentences, growth of cartels and drug gangs, corrupt government institutions, and the mindless head-bashing against brick walls that characterize what we are doing now.

My opinion?  Way to tell the truth, Judge!

Please contact my office if you, a friend or family member face a Drug Offense or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

Decades of Disparity: Drug Arrests and Race in the United States

Constitutional Rights, Drug Offenses, Due Process, felony, Jail, law enforcement, marijuana, misdemeanor, police, Privacy, Race & Law, Search and Seizure, Search Warrant, Sentencing, Studies, , ,

The War on Drugs: Race, Class, Colonialism and the Politics of Pleasures – Culture, Power and Politics

New drug arrest data shows the persistence and extent of racial disparities in the “War on Drugs” in the United States.

The report indicates dramatic racial disproportions among incarcerated drug offenders.  It states, “Since blacks are more likely to be arrested than whites on drug charges, they are more likely to acquire the convictions that ultimately lead to higher rates of incarceration.” The report also shows that although data indicates that blacks represent about one-third of drug arrests, they constitute 46 percent of persons convicted of drug felonies in state courts.

Among black defendants convicted of drug offenses, 71 percent received sentences to incarceration in contrast to 63 percent of convicted white drug offenders.

My opinion?  The “War on Drugs” should rename itself as the  “War on Race.”  The data speaks for itself.

End the War on Drugs.  Legalize marijuana.  Stop institutional racism.

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