Category Archives: Homicide & Manslaughter

Washington State Bans ‘Gay Panic’ Defense of Homicide

Kuhnhausen, 17, disappeared in early June and her remains were discovered Dec. 7, southeast of Battle Ground. A Vancouver man was charged with second-degree murder and malicious harassment, which is a hate crime in Washington. He has pleaded not guilty. Authorities said the Vancouver teenager was strangled after her assailant learned she was transgender.

The new law blocks a defendant from using a defense based on discovery or disclosure of the victim’s actual or perceived gender identity or sexual orientation and would prevent a claim of “diminished capacity” because the defendant did not fully comprehend the nature and gravity of the alleged crime.

A Cell Phone “Ping” Is a Search

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In State v. Muhammad, the WA Supreme Court held that a warrantless cell phone “ping” is a search under the WA Constitution and the Fourth Amendment.

BACKGROUND FACTS

Police investigated the rape and murder of Ms. Ina Claire Richardson. The night she was killed, Richardson had shopped at a local grocery store.  Security cameras recorded her walking through the parking lot toward a distinctive maroon sedan. Minutes later, the vehicle’s headlights switched on, and the vehicle exited the parking lot, drove onto an access road behind a nearby hotel, and parked. Two individuals appeared in the car, which remained parked for approximately one hour. Police officers later discovered a condom wrapper at this location.

On November 10, 2014, a law enforcement officer recognized the unique features of the maroon sedan from the security footage and conducted a traffic stop. The driver was Mr. Muhammad. During the stop, the officer asked Muhammad about his vehicle, asked him whether he had gone to the grocery store or had been in the area on the night of the murder, and obtained Muhammad’s cell phone number before letting him go.

After this encounter, law enforcement “pinged” Muhammad’s cell phone without a warrant. The ping placed Muhammad in an orchard in Lewiston, Idaho. Washington and Idaho police arrived, seized Muhammad’s cell phone, and impounded his car. Police also sought and obtained a search warrant for Muhammad’s car.

Muhammad was taken into custody. He denied any involvement in the rape and murder and eventually asked for legal counsel. Police later searched Muhammad’s car. They discovered blood on the passenger seat; in the trunk, they found latex gloves and other incriminating evidence. The police also discovered condoms in the trunk of the sedan. These condoms matched the condom wrapper found by the hotel service entrance. Finally, The blood was matched to that of Ms. Richardson. Autopsy swabs of Richardson’s vagina and fingernails revealed a limited amount of DNA (deoxyribonucleic acid) matching Muhammad’s profile.

The police obtained a search warrant for Muhammad’s cell phone records. These calls he made on the night of the incident connected to multiple cell towers, indicating that Muhammad was moving. One such cell tower placed Muhammad in the location where Richardson’s body was found.

Muhammad was arrested and charged with rape and felony murder.

At trial, Muhammad moved to suppress all physical evidence collected as a result of the warrantless ping of his cell phone. After a CrR 3.6 hearing, the trial court issued a written order denying the motion based in part on exigent circumstances. A jury convicted Muhammad as charged. Muhammad appealed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Cell Phone “Ping” Tracking Was A Warrantless Search.

The WA Supreme Court held that the “ping” tracking of Muhammad’s cell phone was indeed a search.

“When law enforcement loses sight of a suspected individual, officers need merely ask a cellular service carrier to ping that individual’s phone and almost instantaneously police acquire data on the suspect’s past and present location,” said the Court. “This location tracking technique does substantially more than binoculars or flashlights; it enables officers to see farther than even the walls of a home—it pierces through space and time to pinpoint a cell phone’s location and, with it, the phone’s owner.”

The Court further reasoned that this type of search was exactly what happened to Mr. Muhammad. “The police could not locate Muhammad,” said the Court. “They knew only that he had likely left the area after officers returned to his apartment complex and found the maroon sedan had disappeared. As Muhammad pointed out, the officers’ senses alone could not locate him unless they converted his phone into a tracking device,” said the Court.

“Historical and real-time CSLI, like text messages, reveal an intensely intimate picture into our personal lives. Our cell phones accompany us on trips taken to places we would rather keep private, such as the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

              2. Exigent Circumstances Exist to Justify the Warrantless Cell Phone Search.

The Court said that because the State failed to get a warrant prior to pinging Muhammad’s cell phone, the evidence obtained pursuant to the improper search should be suppressed unless the State proves that an exception to the warrant requirement applies. “Exigent Circumstances” is one of those exceptions.

To prove exigent circumstances, the State must point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion. “The mere suspicion of flight or destruction of evidence does not satisfy this particularity requirement,”said the Court.

The Court reasoned that under the facts of this case, the State has proved exigent circumstances—specifically that Muhammad was in flight, that he might have been in the process of destroying evidence, that the evidence sought was in a mobile vehicle, and that the suspected crimes (murder and rape) were grave and violent charges.

With that, the WA Supreme Court affirmed Muhammad’s conviction.

Please contact my office if you, a friend or family member face criminal charges and the evidence was obtained through a warrantless search of cell phone data and/or location. It is imperative to hire an experienced criminal defense attorney who is well-versed in the law regarding search and seizure of this evidence.

WA Supreme Court Invalidates “Community Caretaking” Search

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In State v. Boissellethe WA Supreme Court held a police officer’s warrantless entry into the defendant’s duplex in this case violated article I, section 7 of the WA Constitution because their emergency aid function search was a unlawful pretext for a criminal investigation as the officers were suspicious, if not convinced, that a crime had taken place before entering the unit.

BACKGROUND FACTS

Law enforcement officers were dispatched to Mr. Boisselle’s home after two anonymous 911 calls reported that a man shot and possibly killed someone at the residence. While responding to the calls, the officers learned that the residence was related to an ongoing missing person/homicide investigation. Unable to determine whether someone was alive inside the home, the officers entered the residence and conducted a warrantless search, discovering evidence of a murder therein. Boisselle  was arrested and jailed.

Boisselle moved to suppress the evidence, arguing that the officers’ warrantless search was unlawfully pretextual  under article I, section 7 of the Washington Constitution. The trial court denied Boisselle’s motion, concluding that the officers’ search fell within the emergency aid function of the community caretaking exception to the warrant requirement. Following a jury trial, Boisselle was convicted of second degree murder and second degree unlawful possession of a firearm. The Court of Appeals affirmed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

I. The Community Caretaking Exception

First, the WA Supreme Court agreed that the application of the community caretaking exception has become muddled, and took this opportunity to clarify the appropriate factors in determining whether an officer has exercised his or her emergency aid community caretaking function.

“The community caretaking exception is one such exception to the warrant requirement,” said the Court. “Under the community caretaking exception, law enforcement officers may make a limited invasion of constitutionally protected privacy rights when it is necessary for officers to perform their community caretaking functions.” The Court explained this exception recognizes that law enforcement officers are “jacks of all trades” and frequently engage in community caretaking functions that are unrelated to the detection and investigation of crime, including delivering emergency messages, giving directions, searching for lost children, assisting stranded motorists, and rendering first aid.

Next, the Court created the following multi-part test for evaluating whether an officer exercised his or her community caretaking function when conducting a warrantless search:

(1) Was the community caretaking exception used as a pretext for criminal investigation? If the court finds pretext, the analysis ends. If the court determines that the exception was not a pretext, the analysis continues is question is answered negatively, the analysis continues.

(2)(a) If the search fell within an officer’s general community caretaking function, such as the performance of a routine check on health or safety, the court must determine whether the search was “reasonable.” “Reasonableness” depends upon a balancing of a citizen’s privacy interest in freedom from police intrusion against the public’s interest in having police perform a community caretaking function.

(2)(b) If the search fell within an officer’s emergency aid function which arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm, the court, before determining whether the search is “reasonable,” must first determine whether: “(1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.”

II. The Warrantless Search of Boisselle’s Home Was Pretextual.

The Court reasoned that an unlawful pretextual search occurs when occurs when officers rely on some legal authorization as a mere pretense to dispense with a warrant when the true reason for the seizure is not exempt from the warrant requirement. When determining whether a given search is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.

“Viewing the totality of the circumstances, we are unconvinced that the officers’ search of Boisselle’s home was not a pretext for a criminal investigation.”

The Court reasoned that here, law enforcement’s involvement began because of two anonymous 911 calls reporting a crime. When the officers arrived at Boisselle’s duplex unit, they noticed a smell that could be attributed to a decomposing body, and they sought to confirm whether a crime had been committed or if a crime victim was inside. The officers were eventually able to see into the unit and saw signs of a struggle and missing carpet, which could be a sign that someone sought to cover up a crime scene.

“Taken together, these facts demonstrate that the officers were suspicious, if not convinced, that a crime had taken place,” said the Court. “Because of the officers significant suspicions, the search of Boisselle’s home was necessarily associated with the detection and investigation of criminal activity.”

Accordingly, the Court held the officers’ warrantless search did not fall under the emergency aid function of the community caretaking exception, and it violated article I, section 7 of the WA Constitution. Thus, the trial court erred in denying Boisselle’s motion to suppress. “We reverse the Court of Appeals and remand to the trial court for further proceedings,” said the Court.

My opinion? Grisly as the facts appear to be, the Court reached the right decision. Freedom from government intrusion lies at the very foundation of Western law and culture, and is one of our nation’s most cherished freedoms. That’s why we insist on police obtaining warrants, unless exigent circumstances dictates otherwise.

Please contact my office if you, a friend or family member were charges with a crime involving an unlawful pretextual search. Hiring competent defense counsel is the first and best step toward achieving justice.

Overcoming Implicit Bias

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In State v. Berhe, the WA Supreme Court held that a trial court failed to adequately oversee allegations of racism and implicit bias among jurors deliberating in a Shoreline man’s first degree murder and first degree assault trial in 2016.

FACTUAL BACKGROUND

In 2016, a King County jury convicted Tomas Berhe, then 31, of murder and assault in a shooting in Seattle’s Eastlake neighborhood. Mr. Behre is African-American. He was convicted of killing 21-year-old Everett Williams, whom Berhe thought had shot his cousin. A second man who was in the Eastlake alley with Williams was also shot.

After the trial concluded with a guilty verdict in early 2016, the sixth juror contacted both defense attorneys and the court with concern, according to the opinion. Weeks later, Berhe asked the judge for a new trial and requested an evidentiary hearing to investigate the allegations of racial bias, among other concerns.

In a written declaration presented by the defense, the sixth juror said she was the only African American on the jury in the trial of an African American defendant and described being the last holdout among four jurors who had initially leaned against conviction.

By the trial’s end, the sixth juror said she only agreed to vote for a guilty verdict because she felt “emotionally and mentally exhausted from the personal and implicit race-based derision from other jurors,” the opinion quotes the declaration as saying.

The juror said others had mocked her as stupid and illogical when she suggested that Berhe could have taken the murder weapon from someone else. She described two jurors as taunting her, saying that she would “let him walk,” and said she felt mocked after several jurors interpreted something she’d said as commentary on police misconduct toward African Americans.

Responding to the defense’s declaration, prosecutors sent questions to several jurors asking if they themselves, or another juror, had done anything to the sixth juror that was motivated by racial bias during deliberations. Results were not conclusive, and the Superior Court judge found insufficient evidence of juror misconduct and denied a request for a new trial.

COURT’S ANALYSIS & CONCLUSIONS

First, the WA Supreme Court described how racial bias harms trial verdicts:

“Unlike isolated incidents of juror misbehavior, racial bias is a common and pervasive evil that causes systemic harm to the administration of justice. Also unlike other types of juror misconduct, racial bias is uniquely difficult to identify.”

Second, the Court reasoned that Courts must carefully oversee any inquiry into whether explicit or implicit racial bias influenced a jury verdict.

“Rather than permitting the parties alone to investigate allegations of racial bias, once a claim of racial bias is raised, inquiries into the influence of that racial bias on a jury’s verdict must be conducted under the court’s supervision and on the record,” said the Court. “Therefore, as soon as any party becomes aware that there are sufficient facts to support allegations that racial bias was a factor in the verdict, the court and opposing counsel must be notified.”

Third, the Court reasoned that the unique challenge of assessing implicit racial bias requires a searching inquiry before a court can decide whether an evidentiary hearing is needed. “Implicit racial bias is a unique problem that requires tailored solutions,” said the Court. “Therefore, when it is alleged that racial bias was a factor in the verdict, the trial court must oversee and conduct a thorough investigation that is tailored to the specific allegations presented before deciding whether to hold an evidentiary hearing and before ruling on a defendant’s motion for a new trial,” said the Court.

The Court concluded that the trial court abused its discretion by failing to exercise adequate oversight over the investigations into juror 6’s allegations of racial bias and by failing to conduct a sufficient inquiry before denying Berhe’s motion for a new trial without an evidentiaiy hearing. “We therefore vacate the trial court’s order denying Berhe’s motion for a new trial and remand for further proceedings.”

My opinion? Excellent decision. Groundbreaking, even. In what could be a first-of-its-kind rule nationwide, the judges’ opinion establishes procedures for trial court judges to investigate implicit racial bias reported during jury deliberations.

This isn’t the first time our Supreme Court has openly exercised judicial activism. In April, the state Supreme Court published General Rule 37, a rule for courts saying that challenges during jury selection based on implicit, institutional and unconscious race and ethnic biases should be rejected, she noted. Now, similar protection from bias extends into the jury room.

Excellent decision.

Flowers v. Mississippi: Supreme Court Finds Race-Based Peremptory Strikes Unlawful

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In Flowers v. Mississippi, the U.S. Supreme Court held that the State’s peremptory strikes in the defendant’s first four trials strongly supported the conclusion that the State’s use of peremptory strikes in the defendant’s sixth trial was motivated in substantial part by discriminatory intent.

BACKGROUND FACTS

Curtis Flowers was tried six separate times for the murder of four employees of a Mississippi furniture store. Flowers is black. Three of the four victims were white. At the first two trials, the State used its peremptory strikes on all of the qualified black prospective jurors.

In each case, the jury convicted Flowers and sentenced him to death, but the convictions were later reversed by the Mississippi Supreme Court based on prosecutorial misconduct. At the third trial, the State used all of its 15 peremptory strikes against black prospective jurors, and the jury convicted Flowers and sentenced him to death.

The Mississippi Supreme Court reversed again, this time concluding that the State exercised its peremptory strikes on the basis of race in violation of Batson v. Kentucky. Flowers’ fourth and fifth trials ended in mistrials. At the fourth, the State exercised 11 peremptory strikes—all against black prospective jurors. No available racial information exists about the prospective jurors in the fifth trial.

At the sixth trial, the State exercised six peremptory strikes—five against black prospective jurors, allowing one black juror to be seated. Flowers again raised a Batson challenge, but the trial court concluded that the State had offered race-neutral reasons for each of the five peremptory strikes. The jury convicted Flowers and sentenced him to death. The Mississippi Supreme Court affirmed. Flowers appealed.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kavanaugh delivered the opinion of the Court, in which Justices Roberts, Ginsburg, Breyer, Alito, Sotomayor and Kagan joined. Justices Thomas and Gorsuch dissented.

Kavanaugh began by discussing the history behind the landmark Batson v. Kentucky. In his majority opinion he explained that under Batson, once a prima facie case of discrimination has been shown by a defendant, the State must provide race-neutral reasons for its peremptory strikes. The trial judge then must determine whether the prosecutor’s stated reasons were the actual reasons or instead were a pretext for discrimination.

“Four categories of evidence loom large in assessing the Batson issue here, where the State had a persistent pattern of striking black prospective jurors from Flowers’ first through his sixth trial,” said Justice Kavanaugh.

The Court reasoned that here, a review of the history of the State’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that the State’s use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent:

“The State tried to strike all 36 black prospective jurors over the course of the first four trials. And the state courts themselves concluded that the State had violated Batson on two separate occasions. The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.”

The Court also reasoned that the State’s use of peremptory strikes in Flowers’ sixth trial followed the same discriminatory pattern as the first four trials.

“Disparate questioning can be probative of discriminatory intent,” said the Court.  “Here, the State spent far more time questioning the black prospective jurors than the accepted white jurors—145 questions asked of 5 black prospective jurors and 12 questions asked of 11 white seated jurors.”

Consequently, along with the historical evidence from the earlier trials, as well as the State’s striking of five of six black prospective jurors at the sixth trial, the dramatically disparate questioning and investigation of black prospective jurors and white prospective jurors at the sixth trial strongly suggest that the State was motivated in substantial part by a discriminatory intent.

Furthermore, the Court reasoned that comparing prospective jurors who were struck and not struck is an important step in determining whether a Batson violation occurred. “Here, Carolyn Wright, a black prospective juror, was struck, the State says, in part because she knew several defense witnesses and had worked at Wal-Mart where Flowers’ father also worked,” said the Court. “But three white prospective jurors also knew many individuals involved in the case, and the State asked them no individual questions about their connections to witnesses. White prospective jurors also had relationships with members of Flowers’ family, but the State did not ask them follow-up questions in order to explore the depth of those relationships.”

Finally, the Court ruled that the State also incorrectly explained that it exercised a peremptory strike against Wright because she had worked with one of Flowers’ sisters and made apparently incorrect statements to justify the strikes of other black prospective jurors. “When considered with other evidence, a series of factually inaccurate explanations for striking black prospective jurors can be another clue showing discriminatory intent,” said the Court. Consequently, the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. Pp. 26–30.

With that, the Supreme Court reversed Flowers’ conviction and remanded the case back to the trial court.

My opinion? Good decision. Although the facts and allegations are terrible for Mr. Flowers, prosecutors simply cannot use exercise race-based peremptory challenges to get justice.

38-Year Delay Violates Speedy Trial

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In State v. Ross, the WA Court of Appeals held that a criminal defendant’s constitutional speedy trial rights were violated by a 38-year gap between charging and the defendant’s first appearance in the trial court on the murder charges.

BACKGROUND FACTS

Here, the State charged Tommy Ross in Clallam County with aggravated first degree murder in 1978. But the State did not pursue prosecution of that charge for over 38 years. Instead, the State allowed Ross to be extradited to Canada for trial on another murder charge without ensuring that he would be returned for trial in Clallam County.

And then while Ross was incarcerated in Canada the State made no meaningful effort for decades to obtain his return to the United States for trial. The trial court ruled that the State violated Ross’s constitutional right to a speedy trial by not prosecuting the murder charge against him for over 38 years, and the court dismissed that charge. The State appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the analysis for the speedy trial right under article I, section 22 of the WA Constitution is substantially the same as the analysis under the Sixth Amendment of the U.S. Constitution.

The Court of Appeals used the balancing analysis stated in Barker v. Wingo to determine whether the defendant’s constitutional right to speedy trial was violated. Among the nonexclusive factors we consider are the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

Length of Delay.

Here, the Court ruled that the The 38-year delay here was extraordinary and significant to the speedy trial analysis. Consequently, the length of delay factor weighs heavily against the State.

Reason for Delay.

The court explained that the “reason for delay” factor focuses on whether the government or the criminal defendant is more to blame for the delay. A court looks to each party’s responsibility for the delay, and different weights are assigned to delay, primarily related to blameworthiness and the impact of the delay on defendant’s right to a fair trial.

“The State’s deliberate delays will be weighed heavily against it, but even negligence that causes delay will be weighed against the State,” said the Court. Consequently, the Court reasoned that the Prosecutor’s decision to release Ross to Canada without obtaining an enforceable agreement to return him to Clallam County was negligent and weighs against the State.

State Failing to Request Extradition.

The Court reiterated the general rule that when a defendant is incarcerated outside of the country, the State has a constitutional obligation for speedy trial purposes to make a good faith, diligent effort to secure his or her return to the United States for trial. Here, the State’s failure after 1980 to seek extradition or even inquire about obtaining Ross’s transfer to Clallam County weighs against the State.

Assertion of Speedy Trial Right.

The court explained that during the time he was incarcerated in Canada, Mr. Ross made no effort to facilitate a trial on the murder charge. He never demanded that the State bring him to trial or that the State figure out a way to remove him to the United States. He did not waive extradition or request that Canada transfer him to Clallam County for trial. And when given opportunities to return to the United States and face the murder charge, Ross declined and decided to remain in Canada. This conduct is inconsistent with an assertion of the right to a speedy trial.

“Based on Ross’s failure to assert his speedy trial right while incarcerated in Canada, we conclude that the assertion of the right factor weighs against Ross even though his failure is mitigated to some extent,” said the Court.

Prejudice from Delay.

The Court of Appeals reasoned that prejudice to the defendant as a result of delay may consist of (1) oppressive pretrial incarceration, (2) the defendant’s anxiety and concern, and (3) the possibility that dimming memories and loss of exculpatory evidence will impair the defense.

In general, a defendant must show actual prejudice to establish a speedy trial right violation. However, prejudice will be presumed when the delay results from the State’s negligence and there has been “extraordinary delay.”

“Courts generally have presumed prejudice in cases where the delay has lasted at least five years,” said the Court, citing  State v. Ollivier. The Court also cited Doggett v. U.S., a case where the U.S. Supreme Court presumed prejudice against the defendant when the State’s inexcusable oversights caused a delay of six years.

“Applying the four-part balancing analysis set out in Barker, we also conclude that the extraordinary delay in prosecuting Ross violated his speedy trial right. Accordingly, we are constrained to affirm the trial court’s dismissal of the murder charges against Ross.”

In addition, the Court of Appeals found the 38-year length of the delay significant, as was the very strong presumption of prejudice resulting from that lengthy delay. “Considering all the Barker factors, we are constrained to conclude that the balancing test weighs against the State,” said the Court. “Accordingly, we hold that the State violated Ross’s speedy trial right under the United States and Washington Constitutions. Dismissal of the charges against the accused is the only possible remedy for a violation of the constitutional right to a speedy trial.”

Please contact my office if you, a friend or family member face criminal charges and there’s question whether the defendant’s right to a speedy trial were violated. Washington Court rule CrRLJ 3.3(b)(2) states that a defendant must be brought to trial within 60 days of arraignment if he is detained in jail and within 90 days if he is not. The purpose o f this rule is to provide a prompt trial for the defendant once they are prosecuted. Under the rule, a charge not brought to trial within the time limit will usually be dismissed with prejudice unless the defendant requests continuances.

 

Washington Crime Report Released

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The Washington Association of Sheriffs and Police Chiefs (WASPC) just released its 2017 Crime in Washington Annual Report.

It was compiled from data submitted to the Washington State Uniform Crime Reporting Program of the WASPC by Washington State law enforcement agencies.

FACTS AT A GLANCE

  • In 2017, Crimes Against Persons showed an increase of 0.4% with 84,145 offenses reported; compared to 2016 offenses reported of 83,771.
  • In 2017, Crimes Against Property showed an decrease of 6.7% with 295,274 offenses reported; compared to 316,361 offenses reported in 2016.
  • In 2017, Crimes Against Society showed an increase of 5.9% with 32,011 offenses reported; compared to 30,230 offenses reported in 2016.
  • Group A offenses were cleared by arrest or exceptional means 25.6% of the time.
  • The crime rate (per 1,000 in population) for Group A offenses was 69.1.
  • The total arrest rate per 1,000 in population was 25.6.
  • Juveniles comprised of 6.9% of the total arrests.
  • Domestic Violence offenses made up 50.4% of all Crimes Against Persons.
  • A total of 25,400 persons were arrested for DUI, including 163 juveniles.
  • A total of 531 hate crime incidents were reported.
  • There were a total of 1,643 assaults on law enforcement officers and no officers killed in the line of duty.
  • Full-time law enforcement employees totaled 15,873; of these 11,078 were commissioned officers.
  • There were 11,986 arrests for drug abuse violations; of that number, 10.2% were persons under 18 years of age.
  • Possessing/concealing of marijuana constituted 16.7% of the total drug abuse incidents; the distributing/selling of marijuana accounted for 1.1% of incidents(type of criminal activity can be entered three times in each incident).
  • Possessing/concealing of heroin constituted 32.2% of the total drug abuse incidents; the distributing/selling of heroin accounted for 4.6% of incidents (type of criminal activity can be entered three times in each incident).
  • The weapon type of “Personal Weapons” (hands, fists or feet) was reported in 51,817 incidents; firearms were reported in 8,465 incidents (up to three weapons can be reported in each incident).
  • There were 6,212 sexual assault (forcible and non-forcible) incidents reported in 2017. There were a total of 6,212 victims in these incidents; with a total of 6,300 offenders.
  • There were a total of 54,294 domestic violence incidents reported; 12,023 of these incidents were Violations of Protection or No Contact Orders.

Overall, the data is very interesting.

Please contact my office if you, a friend or family member are charged with a crime. Consultations are free. I provide effective criminal defense for people charged with felonies and misdemeanors. It is extremely important to hire an attorney like myself who is willing to devote significant attention to the case. I say this because people convicted of a crime face more than just criminal penalties. They also face a potential lifelong social stigma, as well as diminished employment, housing and educational opportunities. I proudly represent clients in Skagit and Whatcom County, Washington.

 

Autopsy Photos Admitted

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In State v. Whitaker, the WA Court of Appeals held that a trial court properly admitted 15 of 100 autopsy photographs over the objection of the defendant who was charged with aggravated murder. The probative value of the photographs in helping to illustrate the medical examiner’s testimony outweighed their prejudicial effect.

FACTUAL BACKGROUND

Mr. Whitaker was charged with helping his friend Mr. Anderson and several others kidnap and Ms. Burkheimer, who was Anderson’s ex-girlfriend. Whitaker helped to bind, hide, and transport Burkheimer. He helped to dig her grave, rob her, bury her, and destroy evidence
of her murder.

At trial, the court admitted 15 autopsy photographs during the testimony of the medical examiner. The medical examiner testified that around 100 photographs were taken during Burkheimer’s autopsy and that the 15 selected for trial showed the injuries to Burkheimer’s body, what the medical examiner looked at when he decided where the bullet exit and entry wounds were, and how Burkheimer’s injuries related to one another.

The jury found Whitaker guilty of premeditated first degree murder, with an aggravating factor of kidnapping and a firearm enhancement, and conspiracy to commit first degree murder. During the trial, Whitaker moved for a mistrial several times, alleging numerous errors were made during trial; one of the errors being whether the trial court improperly admitted the photographs of the victim’s autopsy.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals upheld Whitaker’s conviction and reasoned that accurate photographic representations are admissible, even if gruesome, if their probative value outweighs their prejudicial effect.

“A bloody, brutal crime cannot be explained to a jury in a lily-white manner.”

“The admission of autopsy photographs is in the sound discretion of the trial court,” said the Court of Appeals. “Photographs have probative value where they are used to illustrate or explain the testimony of the pathologist performing the autopsy. Unless it is clear from the record that the primary reason to admit gruesome photographs is to inflame the jury’s passion, appellate courts will uphold the decision of the trial court.” Furthermore, reasoned the Court, the law requires an exercise of restraint, not a preclusion simply because other less inflammatory testimonial evidence is available.

The medical examiner’s testimony explaining the photographs and his conclusions about Burkheimer’s injuries was straightforward and not inflammatory.

“There is no doubt that these photographs are disturbing,” said the court. “But this was a brutal crime, and the record does not show that the primary reason for admitting the photographs was to inflame the jury.” Rather, reasoned the Court, the photographs were admitted to support the testimony of the medical examiner. “The State did not offer all 100 of the photographs but instead selected 15 that best illustrated Burkheimer’s injuries,” said the Court. Therefore, the trial court did not abuse its discretion by admitting them.

With that, the Court of Appeals upheld Mr. Whitaker’s conviction and sentence.

My opinion? The admissibility of evidence is one of the most important battles in trial practice. Courts conduct balancing tests on this issue under Evidence Rules 401, 402 and 403. Under these evidence rules, judges can admit evidence which is relevant and probative as long as the evidence is also not prejudicial to the defendant’s case.  Prejudicial evidence includes evidence which may inflame the passions of the jury. Understandably, however, the prejudicial effect can be outweighed by the probative value. In this case, the probative value of the medical examiner’s testimony outweighed the prejudicial effect these photos may have had on the jury.

Contact my office if you, a friend or family member are charged with a crime involving photographic evidence which could be prejudicial to the case.

Online Research By Juror

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In State v. Arndt, the WA Court of Appeals upheld a defendant’s numerous high-level criminal convictions even though one of the jurors performed online research against the court’s instructions.

FACTUAL BACKGROUND

On February 23, 2014, Ms. Arndt and her boyfriend, Mr. Veeder Jr., spent the night at their
friends’ home. Late that night, the house caught fire. Everyone in the home escaped except Mr. Veeder, who died.

After an investigation, the State charged Arndt with murder in the first degree with an
aggravating circumstance of arson in the first degree, felony murder in the first degree with
aggravating circumstances, arson in the first degree, and six counts of assault in the second degree.

The jury found Arndt guilty as charged. The trial court sentenced Arndt to life in prison without the possibility of release or parole.

Months after the verdict, Juror 2 approached a woman whom she did not know was the
sister of Arndt’s trial attorney. Juror 2 said that in Arndt’s trial, she struggled with the term
“premeditation.” She further related that to better understand the term, she looked it up on the internet. The attorney’s sister told her brother what she had learned.

Defense investigator James Harris then met with Juror 2, explained that he worked for Arndt’s trial attorney, and asked to speak with her about her experience as a juror. Juror 2 spoke with Harris and told him that during deliberations she did internet research on the word “premeditation.” Juror 2 provided Harris with additional information, including sites she may have viewed. The State’s investigator also interviewed Juror 2.

Arndt moved for a new trial on grounds of juror misconduct. At a hearing on the motion,
the court heard testimony from Juror 2 and Harris. Juror 2 testified that she had researched the term “premeditation” and had found different sites, but did not remember whether she had viewed any of the specific sites she had showed Harris when he earlier interviewed her. She said that she looked at a couple different definitions, but it was the word “short” that made her understand. Juror 2 also testified that she had not shared her
research with other jurors.

Ultimately, the trial court held Arndt should not get a new trial:

“In substance, the Court finds that the definitions viewed by Juror #2 were indistinguishable to the jury instruction and were consistent with the law. Because the known research results, as presented to the Court, were consistent with the jury instruction on premeditation and the law, the Court is satisfied beyond a reasonable doubt that Juror #2’s research could not have affected the verdict. Therefore, the motion for a new trial is denied.”

Arndt appealed to the WA Court of Appeals.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that Juror 2 committed misconduct. Also, the consideration of novel or extrinsic evidence by a jury is misconduct and can be grounds for a new trial. Furthermore, juror use of extraneous evidence is misconduct and entitles a defendant to a new trial, if the defendant has been prejudiced.

“Once juror misconduct is established, prejudice is presumed,” said the Court of Appeals. “The court must grant a new trial unless it is satisfied beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict.”

The Court of Appeals also reviewed the trial court’s instructions to the jury on the definition of “Premeditation.” It stated the following:

“Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.”

Finally, the Court of Appeals reasoned that although the exact websites Juror 2 visited and the precise definitions she viewed are unknown, the part of those definitions that had an impression on her and affected her verdict were the word “short” and phrase “however short.”

“As the trial court ruled, these definitions were indistinguishable to the jury instruction and were consistent with the law,” said the Court of Appeals. “This ruling is sufficient to satisfy beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict and to overcome the presumption of prejudice. The court did not abuse its discretion.”

With that the Court of Appeals concluded the trial court did not abuse its discretion by concluding that Juror 2’s research did not contribute to the verdict. Accordingly, the Court of Appeals affirmed Arndt’s conviction.

My opinion? The Court’s decision is frustrating. It placed too much weight on whether the juror’s misconduct prejudiced the defendant. Instead, the Court should have focused on the fact that juror misconduct happened in the first place.

If you stole a candy bar from a grocery store, would your shoplifting affect the store’s bottom line? Probably not. However, the simple fact that you stole a candy bar is, in fact, a crime which demands an effective and just remedy. Otherwise, a crime which goes unpunished is essentially not a crime, correct?

Here, Juror 2 blatantly disregarded the court’s instructions to not perform online research. Did Juror 2’s research affect her decision on the verdict? Did Juror 2 discuss her research with other jurors behind closed doors when they deliberated the case? Therein lies the threat to justice; not only to this defendant, but criminal defendants everywhere. Online research should not be tolerated, even if it can be willed away away as having no impact on the outcome. Bad decision.

Please contact my office if you, a friend or family member face criminal charges.

Juvenile Life Sentences Ruled Unconstitutional

Image result for juvenile court life sentence

Excellent article in the Seattle Times by reporters and  discusses how in State v. Bassett, the Washington State’s Supreme Court ruled that sentencing youth offenders to life in prison without parole is unconstitutional, joining 20 states and Washington D.C. who’ve already outlawed the practice.

In 1996, at the age of 16, Mr. Bassett was convicted of three counts of aggravated first degree murder for the deaths of his mother, father, and brother. The judge commented that Bassett, still a child, was “a walking advertisement” for the death penalty and sentenced him to three consecutive terms of life in prison without the possibility of parole. At the time, 1996, life without parole was the mandatory sentence under our state statute, former RCW 10.95.030 (1993).

The Supreme Court ruled 5-4 that trial courts may not impose a minimum term of life, as that would mean a life without parole sentence, for people convicted of committing a crime when they were younger than 18 years old. The sentencing “constitutes cruel punishment,” and doesn’t achieve the legal goals of retribution or deterrence because children are less culpable than adults, it said. Children convicted of crimes, including the highest degree of murder, are also entitled in Washington to special protections from sentencing courts when possible, the court said.

The ruling comes on the heels of a unanimous decision by the state’s justices earlier this week that struck down the death penalty, declaring its current application to be in violation of Washington’s constitution.

A pediatric psychologist testified that the teenager had suffered from adjustment disorder and struggled to cope with homelessness after his parents kicked him out of the house. Bassett later said that at the time, he wasn’t able to comprehend the long-term consequences of his actions, according to court records.

He hasn’t had any prison violations for 15 years, has earned his GED and was on the Edmonds Community College honor roll. He got married in 2010.

Following research on juvenile brain development, the U.S. Supreme Court in 2012 ruled that automatic life sentences for juveniles were unconstitutional. The state Legislature responded two years later with a law that allowed youth inmates who were sentenced to life as juveniles to have their sentences reconsidered, although they could still be sentenced to life in prison.

Thursday’s ruling eliminates that option for judges.