Category Archives: Ineffective Assistance

Entrapment & Sex Crimes

Bellingham Defense Attorney, Constitutional Rights, Entrapment, Ineffective Assistance, Jury Instructions, Juvenile, law enforcement, Mount Vernon Criminal Defense Attorney, Promoting Prostitution, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Online sting was 'clear case of entrapment:' lawyer | CTV News

In State v. Johnson, the WA Court of Appeals held that a Defendant cannot claim Entrapment for numerous attempted sex offenses by responding to a fake Craigslist add in the “Casual Encounters” section created by police officers conducting an online sting operation.

BACKGROUND FACTS

Law enforcement created a posting in the Craigslist casual encounters section. Mr. Johnson responded to the ad. His communications with the (as-yet-unknown) police led Mr. Johnson to believe the add was posted by a 13-year-old female named “Brandi” who was home alone. Mr. Johnson was instructed to drive to a minimart and await further instructions via text. Johnson drove to the designated minimart. “Brandi” then gave Johnson the address of the house and he drove toward that location. Law enforcement apprehended Johnson while on his way from the minimart to the house. At the time of his arrest, Johnson was carrying forty dollars.

Johnson was charged with (1) attempted second degree rape of a child, (2) attempted commercial sexual abuse of a minor, and (3) communication with a minor for immoral purposes. During trial, he requested the Entrapment Defense via a jury instruction. However, the trial judge denied Johnson the defense and jury instruction. The jury found him guilty of all charges.

Johnson appealed, claiming ineffective assistance of counsel and that the trial judge erred by denying the Entrapment defense.

COURT’S ANALYSIS & CONCLUSIONS

The court explained that in order to prove the affirmative defense of entrapment, a defendant must show, by a preponderance of the evidence, that he committed a crime, that the State or a State actor lured or induced him to commit the crime, and that the defendant lacked the disposition to commit the crime. A defendant may not point to the State’s absence of evidence to meet his evidentiary burden for an affirmative defense. Importantly, as a matter of law, the Court also stated the following:

“Entrapment is not a defense if law enforcement merely afforded the actor an opportunity
to commit a crime.”

“Here, Johnson points to no evidence to support an entrapment instruction,” reasoned the Court. Here, law enforcement created a Craigslist posting purporting to be a woman looking for a man to teach her how to be an adult. This add, however, was not entrapment on the part of police. The add merely presented an opportunity for Mr. Johnson to incriminate himself and commit a crime:

“Johnson initiated contact by answering the posting. Johnson testified that no one forced him to answer the posting. Although Johnson stated he wanted to be cautious because ‘Brandi’ was underage, he steered the conversation into explicitly sexual territory by graphically explaining his sexual desires to the purported thirteen-year-old. When ‘Brandi’ suggested meeting at a later time, Johnson declined, stating that he was available to meet. There is no evidence that law enforcement lured or induced Johnson.”

The court also rejected Johnson’s argument that he was entitled to an entrapment instruction because the State failed to show he had a predisposition to commit the crimes against children, and there was no evidence of a history regarding perverse activity towards children.

“But pointing to the State’s absence of evidence does not meet Johnson’s evidentiary burden for his affirmative defense,” said the Court. Instead, explained he Court, the evidence shows that law enforcement merely afforded Johnson the opportunity to commit his crimes. Johnson willingly responded to the posting, steered the conversation to explicitly sexual topics, testified that he wanted to meet the person, and drove to the agreed locations.

The Court of Appeals concluded that because Johnson failed to show any evidence entitling him to a jury instruction on entrapment, the trial court did not err by refusing to instruct the jury on entrapment. The court also denied Mr. Johnson’s claims of ineffective assistance of counsel.

My opinion? Entrapment is a very difficult defense to prove under these circumstances. Law enforcement officers are allowed to engage in sting operations, whereby they create circumstances that allow individuals to take criminal actions that they can then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment and involves merely the temptation to violate the law, not being forced to do so.

Please contact my office if you, a friend or family member face sex offenses and Entrapment could be a substantive defense. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Backpage.com & Privacy

Bellingham Defense Attorney, Cell Phone, felony, Ineffective Assistance, Privacy, Prostitution, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Online classified website Backpage.com takes down adult section amid government pressure | Fox 59

In In re Personal Restraint of Hopper, the WA Court of Appeals held that a defendant’s calls and text messages to the phone number listed in a Backpage.com advertisement were not private communications protected by the Washington Privacy Act.

BACKGROUND FACTS

In December 2012, Mr. Hopper searched Backpage.com with the intent of purchasing sex. Backpage operated an online classified advertising service, Its users created and posted their own ads, including ads in the adult category. This category included ads for prostitution activity, often under the guise of an adult escort or entertainment service. The ads often featured pictures of women identified by false names and ages, along with hourly rates.

Hopper saw an advertisement for a woman named “Whisper,” who he later learned was K.H. The ad stated that she was 19 years old. She was actually 16 years old. It listed a phone number that Hopper both called and contacted by text. When he contacted the number by text, he initially believed that he was communicating with K.H. But K.H.’s pimp, identified as Mr. Park, had listed his own number on the ad and was reading and responding to Hopper’s text messages.

In December 2012, police arrested Park and, with a warrant, searched his cell phone. K.H. told police that Hopper had paid to have sex with her and identified him from a photograph montage. The police located Hopper’s home address from the text messages stored on Park’s phone. The State charged Hopper with commercial sexual abuse of a minor. In March 2014, a jury convicted Hopper as charged.

Hopper appealed his conviction on arguments that his trial counsel gave ineffective
assistance by failing to move to suppress his text messages to K.H., which police found stored on Park’s cellular phone.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a privacy act violation occurs when “(1) a private communication transmitted by a device. . . was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication.” Hopper claims that his text messages to K.H. were “private communications” under the act because he intended them for her alone and they concerned illegal activity. Whether communications are private is a question of fact but may be decided as a question of law where, as here, the parties do not dispute the facts.

The Court of Appeals noted the Act does not define “private.” Instead, Washington courts have adopted the dictionary definition. Nevertheless, Washington courts will generally presume that each of the two parties participating in the conversation intends it to be private.

“Hopper’s subjective expectation of privacy was objectively unreasonable,” said the Court of Appeals. The Court explained that Hopper responded to an ad on Backpage.com, a website notorious for advertising prostitution activity. The ad was titled “any way you want it 19” and featured an unidentifiable woman with a fictitious name. A reasonable person would not expect that contacting a stranger by text through the phone number listed in this advertisement would provide a legitimate opportunity for a private conversation with a known person. Even Hopper admitted that “the picture wasn’t a good enough picture to clearly identify a specific person.”

“And regardless of whether Hopper was initially aware of K.H.’s pimp, it is common knowledge that prostitutes often have pimps. Thus, even though Hopper subjectively intended for his text messages to K.H. to be private, his communications were not private
because this expectation was unreasonable. Park did not violate the act when he recorded and stored Hopper’s messages to K.H. on his cell phone.”

The Court of Appeals concluded that because Hopper does not establish that these text messages were “private communications” under the act, he does not show that his counsel’s performance fell below an objectively reasonable standard of care. His claim failed. The Court of Appeals upheld Hopper’s conviction and found his attorney was not ineffective.

Please contact my office if you, a friend or family member face criminal charges involving searches of cell phones. Depending on the circumstances, the evidence might be suppressible. And for more information on search warrants, please read my Legal Guide on Search & Seizure.

Guilty Pleas & Deportation

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, Immigration, Ineffective Assistance, Informant, United States Supreme Court, Whatcom County Criminal Defense, , ,

U.S. Supreme Court to weigh bad legal advice - pennlive.com

In Lee v. United States, the United States Supreme Court held that a defendant was prejudiced by his attorney’s bad advice to accept a guilty plea when following that advice ultimately led to Lee’s deportation.

BACKGROUND FACTS

Defendant Jae Lee moved to the United States from South Korea with his parents when he was 13. He spent 35 years in this country. He never returned to South Korea. He also never became a U. S. citizen, and lived instead as a lawful permanent resident.

In 2008, federal officials heard from a confidential informant that Lee had sold the informant ecstasy and marijuana. After obtaining a warrant, the officials searched Lee’s house. They found drugs, cash, and a loaded rifle. Lee admitted that the drugs were his. Later, a grand jury indicted him on one count of possessing ecstasy with intent to distribute. Lee retained a private defense attorney and entered into plea discussions with the Government.

Importantly, during the plea process, Lee repeatedly asked his attorney whether he would face deportation. His attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison. Unfortunately for Lee he had, in fact, pleaded guilty to an “aggravated felony” under the Immigration and Nationality Act, 8 U. S. C. §1101(a)(43)(B). Therefore, Lee was subject to mandatory deportation under federal law §1227(a)(2)(A)(iii) as a result of that plea following his attorney’s advice

When Lee learned of this consequence, he filed a motion to vacate his conviction and sentence, arguing that his attorney gave constitutionally ineffective assistance. At an evidentiary hearing, both Lee and his plea-stage counsel testified that “deportation was the determinative issue” to Lee in deciding whether to accept a plea, and Lee’s counsel acknowledged that although Lee’s defense to the charge was weak, if he had known Lee would be deported upon pleading guilty, he would have advised him to go to trial. A Magistrate Judge recommended that Lee’s plea be set aside and his conviction vacated. The District Court, however, denied relief, and the Sixth Circuit affirmed.

Applying the two-part test for ineffective assistance claims from Strickland v. Washington, the Sixth Circuit concluded that, while the Government conceded that Lee’s counsel had performed deficiently, Lee could not show that he was prejudiced by his attorney’s erroneous advice. Lee appealed the Sixth Circuit’s decision. He was granted review by the U.S. Supreme Court.

COURT’S DECISION & ANALYSIS

The U.S. Supreme Court held that Lee successfully showed he was prejudiced by his defense attorney’s bad advice.

The Court reasoned that when a defendant claims that his attorney’s bad performance deprived him of a trial by causing him to accept a guilty plea, then the defendant can show prejudice by demonstrating a reasonable probability that, but for the attorney’s errors, he would not have pleaded guilty and would have insisted on going to trial. Here, the Court believed Lee’s argument that he never would have accepted a guilty plea if he knew he would be deported upon accepting the guilty plea.

The Court further reasoned that the decision whether to plead guilty involves assessing the respective consequences of a conviction after trial and by plea. It explained that when consequences are similarly dire, even the smallest chance of success at trial may look attractive:

“For Lee, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial.”

Finally, the Court reasoned that under the unusual circumstances of this case, Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation. Here, both Lee and his attorney testified that deportation was the determinative issue to Lee when Lee accepted the plea deal.  Also, Lee’s responses to the judge’s questioning during the entry of his plea confirmed the importance that Lee placed on deportation. He had strong connections to the United States, while he had no ties to South Korea.

Finally, the Court rejected the Government’s argument that Lee cannot convincingly argue that his decision to reject the plea bargain would have been rational under the circumstances since deportation would almost certainly result from a trial:

“Unlike the Government, this Court cannot say that it would be irrational for someone in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation.”

With that, the U.S. Supreme Court reversed Lee’s conviction.

My opinion? Good decision. In Padilla v. Kentucky, the U.S. Supreme Court held that a defense attorney has an obligation under the Sixth Amendment to advise non-citizens about the potential adverse immigration consequences of a plea to criminal charges, and that the absence of such advice may be a basis for claim of ineffective assistance of counsel. Clearly, it’s of the utmost importance that defense attorneys competently advise their clients of the ramifications of pleading guilty. As demonstrated here, pleading guilty to aggravated felonies results in the unwanted consequences of immediate deportation.

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.

Opening the Door

Bellingham Defense Attorney, Evidence, felony, Ineffective Assistance, Jury Trial, Opening the Door, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Wafford, the WA Court of Appeals that a defendant’s counsel “opened the door” to suppressed evidence during opening statement, and that the proper remedy was to admit evidence that the court had previously ruled inadmissible.

FACTS & BACKGROUND

The incidents began years before. In 2005, T.H.’s mother heard that eight-year-old T.H. had told a friend that something inappropriate happened with Mr. Wafford. After reporting to police, T.H.’s mother took T.H. to be interviewed at Dawson Place, the Snohomish County Center for Child Advocacy. There, a child forensic interview specialist talked with T.H., and their conversation was video-recorded. T.H. did not make a specific disclosure of sexual abuse by Wafford, though she did appear to nod affirmatively in response to one question about inappropriate sexual contact. The State did not investigate further or charge Wafford.

However, Mr. Wafford continued to sexually abuse H.F. as well as her sister T.H. Eventually, the State charged Wafford with crimes against both T.H. and H.F.  As to T.H., Wafford was charged with first degree rape of a child, first degree child molestation, and first degree incest. As to H.F., Wafford was charged with first degree rape of a child, first degree child molestation, and third degree child molestation.

PRE-TRIAL SUPPRESSION OF VIDEO INTERVIEW

Before trial, the court conducted a child hearsay hearing at which it concluded that the 2005 recorded interview of T.H. was inadmissible. The court reasoned that because T.H. never actually described an act of sexual contact, her statements were not admissible under the child hearsay statute.

TRIAL

During defense counsel’s opening statement, she referred explicitly to the video of T.H.’s interview: “Mariyah brought both H.F. and T.H. to Dawson Place in 2005. Nova Robinson interviewed on video T.H., but T.H. denied that anything was happening to her.” The State did not object.

After opening remarks, the State requested that the court admit the interview video that had been previously excluded. The State argued that when defense counsel mentioned the video, she opened the door to its admission. The court found that defense counsel opened the door and admitted a portion of the video. Ultimately, the jury found Wafford guilty of first degree child molestation of T.H., but was unable to reach a verdict on the remaining counts. The court sentenced Wafford to 68 months in prison.

Wafford appealed on the argument that, as a matter of law, comments made by counsel during opening statements cannot open the door to otherwise inadmissible evidence.

ANALYSIS AND CONCLUSION

The Court reasoned that (1) a party who introduces evidence of questionable admissibility may open the door to rebuttal with evidence that would otherwise be inadmissible, and (2) a party who is the first to raise a particular subject at trial may open the door to evidence offered to explain, clarify, or contradict the party’s evidence. State v. Jones, citing 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14, at 66-67 (5th ed.2007).

With that background, the Court addressed Wafford’s argument that because a comment made during an opening statement  is not evidence, it cannot open the door pursuant to State v. Whelchel and  Corson v. Corson.

However, the Court distinguished these cases. First, it reasoned that Whelchel does not support the broad proposition that opening statements cannot open the door because the evidence in question in Whelchel was admissible when the parties made opening statements. Second, the Corson case was distinguishable because in that case the trial court wrongfully admitted irrelevant and prejudicial evidence in response to an improper opening statement when other more effective means of ensuring a fair proceeding are available. Consequently, the Corson case did not hold that opening statements can never open the door to otherwise inadmissible evidence.

Next, the Court rejected Wafford’s argument that comments made during opening statements cannot open the door. First, such a rule would be contrary to the general rule permitting trial courts the discretion to determine the admissibility of evidence. Second, whether the issue arises from the statement of counsel or the testimony of a witness is immaterial to the question faced by the trial judge: to what extent, if any, has the statement compromised the fairness of the trial and what, if any, response is appropriate:

“In answering this question, the trial judge should have a range of options at his or her disposal. A judge may admonish the jury to disregard certain statements or reiterate its instruction that opening statements are not evidence. The judge may allow testimony about otherwise inadmissible evidence, while continuing to exclude the exhibit or document which contains the evidence. Or the judge may find that a party has opened the door to otherwise inadmissible evidence. The appropriate response is that, which in the discretion of the trial judge, best restores fairness to the proceeding.”

Finally, the Court rejected Wafford’s argument that the trial court mistakenly admitted the recording because it was inadmissible hearsay and therefore incompetent evidence.  Under ER 801(d)(1)(ii), a statement is not hearsay if “the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is… consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. . . .” Here, however, the victim testified. The court concluded her affirmation of Wafford’s unlawful sexual conduct was consistent with her testimony and is thus not hearsay under ER 801(d)(1).

With that, the Court upheld Wafford’s conviction and sentencing.

My opinion?

It is well settled in Washington that a party that introduces evidence of questionable admissibility runs the risk of “opening the door” to the admission of otherwise inadmissible evidence by an opposing party.

For this reason, it is mandatory that attorneys exercise extreme discretion with their comments and questions during trial. Defense attorneys must avoid discussing evidence they work so hard to suppress. Not only can one “open the door” during direct and cross examination of witnesses, but also opening statements.

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.

Prostitution Evidence Admitted During Defendant’s Assault Trial

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In State v. Woods, the WA Court of Appeals held that evidence of prostitution was properly admitted in the defendant’s prosecution for assault in the second degree. The Court reasoned these prior acts were necessary to explain to the jury why the victim was fearful of seeking help from her family or from the police.

BACKGROUND FACTS

The Defendant and alleged victim began their volatile relationship in 2009. Drug use, emotional abuse and physical abuse were allegedly involved.  Later, allegations arose the Defendant forced the alleged victim to engage in prostitution.

In April of 2012, the alleged victim’s mother drove her to the hospital in the aftermath of an alleged assault. The alleged victim disclosed other recent assaults during a subsequent interview with a police detective.

THE CHARGES, JURY TRIAL & BASIS FOR APPEAL

The Defendant was charged with one count of assault in the second degree for the September 2011 strangulation, with a special allegation of domestic violence pursuant to RCW 10.99.020.

During trial, the court admitted evidence of an August 2011 strangulation and the prostitution evidence. It determined that such evidence was admissible because it aided the jurors in understanding the nature of the relationship, motive, and intent, and helped to illuminate the alleged victim’s state of mind.  The trial court also noted that testimony regarding prior assaults may assist the jury in understanding the dynamics of the domestic violence relationship and in assessing the alleged victim’s credibility.

The jury found the Defendant guilty. He timely appealed. The WA Court of Appeals granted review to resolve the issues presented.

THE COURT’S REASONING AND CONCLUSION.

ER 404(b) Evidence

The Court of Appeals reasoned that under ER 404(b), evidence of a defendant’s prior bad act is not admissible to prove the defendant’s character and to show action in conformity therewith. However, such evidence may be admissible for other purposes, depending on its relevance and the balancing of its probative value and danger of unfair prejudice. For evidence of a prior bad act to be admissible, a trial judge must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Under this analysis, the Court of Appeals reasoned that the trial court’s rulings herein were correct. The alleged victim’s testimony as to how the Defendant forced her into prostitution and why she was unable to escape was necessary for the jurors to understand the dynamics of this domestic violence relationship. Furthermore, the court found that the complainant’s professed shame and fear associated with forced prostitution was an important factor for the jury to consider.

Ineffective Assistance of Counsel

The Court illustrated how ineffective assistance of counsel is established only when the defendant shows that (1) counsel’s performance, when considered in light of all the circumstances, fell below an objectively reasonable standard of performance, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

Under this analysis, the Court rejected the Defendant’s arguments that his counsel was ineffective for failing to object to the admission of the prostitution evidence.  It reasoned there was nothing objectionable about this evidence because it was properly admitted pursuant to ER 404(b). Moreover, the Defendant’s counsel expressly deferred an objection to the prostitution evidence after stating that he viewed that evidence as presenting a valuable area for cross examination: “Rather, the record demonstrates that a tactical decision was made.”

The Defendant also believed he received ineffective assistance of counsel because his attorney failed to request a limiting instruction regarding the prostitution evidence. However, the Court of Appeals held this was also a strategic decision on the part of defense counsel. With that, the Court of Appeals held that Woods was not prejudiced and upheld his conviction.

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

No Motion to Suppress?

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Firearm, Ineffective Assistance, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In Mahrt v. Beard, the 9th Circuit Court of Appeals held that a defendant may bring a pre-plea ineffective assistance of counsel claim when counsel’s failure to argue a motion to suppress the fruits of a search prevents the defendant from making an informed choice whether to plead guilty.

BACKGROUND FACTS

On September 3, 2012, Sonoma County Sheriff’s deputies were dispatched to a residence in Petaluma, California. A neighbor had reported that a male and female subject were arguing over a gun. The Defendant Gregory Mahrt was living in a garage on the property that had been converted into a room. As the deputies approached the property, Mahrt walked out and met them at the front gate. The deputies detained Mahrt and asked about the argument, the gun and whether anyone else was inside the residence.

Mr. Mahrt was “uncooperative.” The deputies conducted a “protective sweep” of Mahrt’s room in the garage. As the deputies approached the garage, Mahrt began yelling that he did not want the officers to enter his room. According to the report, the deputies observed ammunition cans, ammunition, and what appeared to be an AR-15 Rifle (later determined to be a replica).

The deputies subsequently learned that Mahrt had a prior felony conviction and arrested him for being a felon in possession of ammunition. The deputies then asked Mahrt for permission to search his room.

This is where the facts differ: according to police reports, Mr. Mahrt consented. The deputies conducted a second search of the room. They found additional ammunition, rifle magazines, and two firearms. According to Mahrt, however, he did not consent to the search.

On September 5, 2012, the State of California charged Mahrt with having been a felon in possession of a firearm and ammunition in violation of California Penal Code § 29800(a)(1) and § 30305(a)(1). Mahrt believed that the warrantless search (or searches) of the garage was (or were) illegal. However, neither of the two public defenders who represented him at the trial court level moved to suppress the firearms and ammunition recovered from his room.

Nevertheless, despite his defense counsel’s failure to move to suppress, Mahrt pleaded guilty to both charges and received a six-year sentence. He appealed. On appeal, Mahrt’s appointed counsel did not raise any issues. Instead, his counsel filed a Wende brief, the California analogue to an Anders brief. A Wende brief is filed when a California appellate attorney concludes that an appeal would be frivolous.  On November 27, 2013, the California Court of Appeal affirmed Mahrt’s conviction.

On April 11, 2014, Mahrt filed a federal habeas petition pursuant to 28 U.S.C. § 2254(d). The petition alleged that Mahrt’s Sixth Amendment right to effective assistance of counsel was violated by his trial counsels’ failure to move to suppress the firearms and ammunition found in his room. A magistrate judge, sitting by consent, granted Mahrt’s petition. The State timely appealed.

ANALYSIS & CONCLUSION

  1. The Defendant May Proceed With a Pre-Plea Ineffective Assistance of Counsel Claim.

The 9th Circuit  reasoned that Mahrt’s ineffective assistance of counsel claim, premised upon a failure to file a motion to suppress, is squarely within this line of case discussing pre-plea ineffective assistance of counsel by failing to file a motion to suppress:

“The State’s entire case against Mahrt depended on its ability to introduce into evidence the firearms and ammunition found in his room. If the deputies unconstitutionally searched Mahrt’s home, counsel’s failure to move to suppress the fruits of that search prevented Mahrt from making the informed choice to which he was entitled.”

    2. Mahrt’s Counsel Was Ineffective.

The Court held that Mahrt’s counsel was ineffective in failing to move to suppress the firearms and ammunition. It reasoned that there was at least a chance that such a motion would have succeeded. First, there was a clear conflict in the available evidence. Second, a police officer’s report mischaracterized the first search as a “protective sweep.”

The Court reasoned that a warrantless protective search is permitted under Maryland v. Buie, based on the “interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” Here, Mahrt was being detained by the deputies, and they had no reason to suspect that there was some other person inside the residence who could pose a danger to themselves or to others. Consequently, the Court reasoned that defense counsel should have filed and argued a motion to suppress the search of Maert’s premises.

My opinion? It’s very importnant to retain qualified defense counsel in search and seizure cases such as this. Here, the defendant accepted a plea bargain on the advice of defense counsel who, according to the court, failed to argue motions to suppress. Pretrial motions are essential. It’s imperative to hire defense counsel who know the law and argue it effectively.

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.

The Right to Hope for Jury Nullification

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Ineffective Assistance, Jury Nullification, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , ,

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Interesting article by Ilya Shapiro of the Cato Institute discusses whether jury nullification could aid a defendant who is facing deportation in lieu of receiving bad legal advice.

According to Ms. Shapiro, defendant Jae Lee came to the United States legally as a child but never became a citizen. In 2009, he pled guilty to a drug crime after his lawyer assured him that he could not be deported. The lawyer was wrong, unfortunately, because the conviction made Lee subject to deportation.

When Lee learned of this mistake, he asked the court to vacate his plea so he could instead face trial, arguing that his counsel’s assistance was ineffective. The court denied this motion because of the overwhelming evidence against Lee, ruling that his conviction at trial was so certain that his counsel’s bad advice didn’t actually harm him, particularly given the much longer prison sentence he would receive if convicted after trial.

The U.S. Court of Appeals for the Sixth Circuit agreed with the law court’s ruling that a jury wasn’t needed to determine Lee’s guilt and that denying the “chance to throw a Hail Mary at trial is not prejudicial” and therefore doesn’t violate Lee’s Sixth Amendment right to a jury trial. The court reasoned that that the only chance Lee had was acquittal by “jury nullification” and thus such a gambit was so irrational—and the idea of nullification so antiquated—that it is not to be allowed.

For those who don’t know, jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

According to Shapiro, Mr. Lee is now taking the matter at the United States Supreme Court, which has agreed to hear his argument, which Cato is supporting with this amicus brief.

The Supreme Court must now protect the right to pursue Mr. Lee’s potentially risky trial strategy. Although it may not be wise for Mr. Lee to seek acquittal by jury nullification, he should also have the right to decide whether the risk is worth facing as against the certainty of deportation. According to Shapiro, “It is not up to courts to pick which strategy is best for criminal defendants to follow, but judges should protect the right to choose a jury trial even when they might not make the same choice under the same circumstances.” The Supreme Court hears argument in Lee v. United States on March 28, 2017.

My opinion? This is a very relevant, timely, progressive and news-worthy development. The new administration’s goals to deport criminal immigrants puts a lot of pressure on our courts to enforce these policies.

Ultimately, I predict an increase in post-conviction Motions to Withdraw guilty pleas based on Ineffective Assistance of Counsel under Padilla v. Kentucky, a 2010 United States Supreme Court case which held  that defense attorneys must inform their clients whether his plea carries a risk of deportation.

please  contact my office if you, family or friends are not U.S. citizens, yet face possible deportation for entering past guilty pleas which were ill-advised by defense counsel. Deportation is a terrible consequence for a prior attorney’s ineffective assistance of counsel.

Deported After Conviction

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In State v. Manajares, The WA Court of Appeals Division III upheld the defendant’s 2002 conviction because at the time it was unforeseeable that the plea would result in deportation.

In December 2002, defendant Jose Manajares entered an Alford plea to one count of Unlawful Imprisonment, a Class C Felony. Before accepting the plea, the court asked Mr. Manajares if he understood that his “plea of guilty to this count is grounds for deportation from the United States, … exclusion from admission to the United States and denial of naturalization,” and he answered “Yes.” The court accepted the plea and sentenced Mr. Manajares.

Shortly after he entered the plea, Mr. Manajares was removed from the United States by the United States Immigration and Naturalization Service.

Almost 10 years after his 2002 conviction, Mr. Manajares filed a CrR 7.8 motion to vacate his Alford plea. He argued he received ineffective assistance of counsel because Manjares’s defense attorney failed to advise him that his conviction could result in deportation.

The Court reasoned that when determining whether a defense attorney provided effective assistance, the underlying test is always one of “reasonableness under prevailing professional norms.”

PADILLA V. KENTUCKY.

In Padilla, the United States Supreme Court recognized that immigration law can be complex,” and that “some members of the bar who represent clients facing criminal charges … may not be well versed in it.  Because “there will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain,” the Court announced the following standard for assessing a criminal defense lawyer’s duty:

“When the law is not succinct and straightforward … a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, … the duty to give correct advice is equally clear.”

Therefore, the Court of Appeals reasoned whether Mr. Manajares’s ineffective assistance of counsel claim depended on whether truly clear adverse immigration consequences would follow from his 2002 plea that defense counsel failed to apprehend and explain.

IMMIGRATION & NATIONALITY ACT.

The Court also reviewed the Immigration and Nationality Act, “which holds that any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of … a crime involving moral turpitude ( other than a purely political offense) … is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Here, the court reasoned it was unclear to both Mr. Manjares’s immigration attorney and his appellate attorney whether a conviction for unlawful imprisonment was an aggravated felony or a crime of moral turpitude which automatically triggers deportation.

Additionally, the court reasoned it is not automatically deficient performance for a lawyer to permit a client to enter an Alford plea. For all of these reasons, the Court decided there was ultimately no deficient performance on the part of defense counsel.

Mr. De Long’s review with Mr. Manajares of the general statutory deportation warning was therefore competent representation.

My opinion? In 2010, the U.S. Supreme Court’s Padilla v. Kentucky set the “bright line rule” that criminal defense attorneys must warn non-citizen clients of the risk of deportation if the defendant is considering a guilty plea. Employing Strickland v. Washington‘s test for evaluating whether legal counsel was “ineffective,” the Court held that criminal defense attorneys have an affirmative duty to warn their non-citizen clients of whether their guilty pleas carry a risk of removal from the United States, If counsel fails to issue a warning, he or she violates the defendant’s Sixth Amendment right to effective assistance of counsel.

Here, Padilla’s 2010 guidelines rules were not in effect because the defendant entered his plea in 2002. Therefore, defense counsel was no deficient in his performance.

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.

“Knock & Announce” Was Too Short.

Bellingham Defense Attorney, Constitutional Rights, Evidence, Exigent Circumstances, felony, Ineffective Assistance, Knock & Talk, law enforcement, marijuana, police, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for cops break down door

In State v. Ortiz, the WA Court of Appeals Division III held that police violated a defendant’s rights when they forced entry into his home after waiting only 6-9 seconds of their “knock and announce” during the early morning.

In late July 2011, Wapato Police Sergeant Robert Hubbard viewed the backyard of the defendant’s property from the vantage point of a cooperative neighbor. He saw two marijuana plants. Sergeant Hubbard was granted a search warrant for the property.

on August 11, 2011, at approximately 6:4 7 a.m., Sergeant Hubbard and 11 other police officers executed the search warrant at the property. He knocked on the door three times, announced “police search warrant,” waited one to two seconds, and repeated that process twice more. Hearing nothing inside the home, the officers breached the front door and entered the home.

Upon searching the property, the officers found 41 marijuana plants in various stages of growth and other evidence of a grow operation. Mr. Ortiz was eventually charged with one count of manufacture of a controlled substance, one count of involving a minor in an unlawful controlled substance transaction, and several other counts not relevant on appeal.

At the end of trial, the jury found Mr. Ortiz guilty.

On appeal, Mr. Ortiz argued he received ineffective assistance of counsel because his defense attorney failed to challenge the execution of the search warrant for failure to comply with the knock and announce rule.

EFFECTIVE ASSISTANCE OF COUNSEL.

The Court of Appeals began by explaining that effective assistance of counsel is guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. First, the defendant must show he received deficient representation. Second, the defendant must show he suffered prejudice as a result of the deficient performance.

“KNOCK & ANNOUNCE” RULE.

Next, the court explained the “knock and announce” rule. The Fourth Amendment to the United States Constitution requires that a non-consensual entry by the police be preceded by an announcement of identity and purpose on the part of the officers. This is part of the constitutional requirement that search warrants be reasonably executed.

In WA State, the parallel requirement of article I, section 7 of the Washington Constitution is codified in RCW 10.31.040. It states, “To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other enclosure, if, after notice of his or her office and purpose, he or she be refused admittance.”

The Court explained that in order to comply with the “Knock & Announce” statute, the police must, prior to a non-consensual entry, announce their identity, demand admittance, announce the purpose of their demand, and be explicitly or implicitly denied admittance. The requirement of a demand for admittance and an explicit or implicit denial of admittance have been merged into a ‘waiting period,’ often linked to whether the police officers are refused admittance.

Strict compliance with the rule is required unless the State can demonstrate that one of the two exceptions to the rule applies: exigent circumstances or futility of compliance. Finally, the proper remedy for an unexcused violation is suppression of the evidence obtained by the violation.

Here, the only disputed issue was whether the police waited long enough before they broke down the door. The answer to this question depends upon the circumstances of the case.

The Court elaborated that the reasonableness of the waiting period is evaluated in light of the purposes of the rule, which are: ( 1) reduction of potential violence to both occupants and police arising from an unannounced entry, (2) prevention of unnecessary property damage, and (3) protection of an occupant’s right to privacy.

Here, the Court believed the waiting period of 6-9 seconds was unreasonable:

“In this case, due to the early hour of the search, the occupants were foreseeably asleep. Six to nine seconds was not a reasonable amount of time for them to respond to the police, and thus no denial of admittance can be inferred. Even Sergeant Hubbard admitted it would not be a surprise that sleeping occupants would be unable to respond in that amount of time. In addition, the purposes of the rule were not fulfilled due to the property damage done by battering in the door. The police did not comply with the rule.”

Although the State presented cases where the “knock and announce” rule was adhered to after police officers breached entry quickly after announcing, the Court nevertheless reasoned that in each of those cases the defendants were both present and awake. But here, the officers did not have any indication the home’s occupants were present or awake.

Because the police violated the knock and announce rule, and there is no legitimate strategic or tactical reason for failing to challenge the search, counsel was deficient for not moving to suppress the evidence. This deficiency, reasoned the court, prejudiced the defendant.

The Court concluded that Mr. Ortiz established that he was deprived of his constitutional right to effective assistance of counsel. The court reversed his convictions and remanded the case back to the trial court with directions to suppress the fruits of the illegal search.

My opinion? Excellent decision. Search and seizure issues like this are incredibly interesting. For more information on the case law surrounding these issues please review my Legal Guide titled, Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.

And 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.

Corpus Delicti & Murder Confessions

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In State v. Young, the WA Court of Appeals Division II decided the defendant’s confession to murder was properly admitted because the State presented ample independent evidence of (1) the fact of death, and (2) a causal connection between the death and a criminal act.

On the morning of July 4, 2013, John Young entered the Desert Food Mart in Benton City and asked the cashier to call 911 because he had witnessed a shooting of a man named Jacob. Police were summoned. As the investigation proceeded, Mr. Young became a suspect. He was brought in for questioning, and consented to audio and video recording of an interview.

During the interview, an officer read Mr. Young Miranda warnings and obtained his agreement that he understood he was now a suspect and any statements he made could be used against him. Mr. Young then confessed that Jacob was involved in a drug deal gone wrong. With the assistance of an accomplice named Joshua Hunt,  Mr. Young admitted he fired one shot into Jacob’s head near the temple-cheek region, killing him.

Mr. Young also confessed that he and Mr. Hunt disposed of their shoes and gun by putting the items into a backpack and throwing the backpack into a river. Later, police recovered the shoes and gun.  The shoes matched footprints and shoe patterns that had been found in the sand near Jacob’s body. The Washington State Patrol Crime Laboratory determined that all of the bullets recovered from the crime scene had been fired from the Charter pistol found in the backpack.

Mr. Young was charged with first degree murder.

During a 3.5 hearing, Young’s attorney lawyer stipulated to the admission of the videotaped interview, telling the court:

“We believe it’s in our interests to actually stipulate to the 3.5 hearing, and I’ve discussed that with Mr. Young, and I know the Court will make its own inquiries, but he knows and understands he has a right to that hearing, but we believe it’s in our benefit and strategic interest to proceed with the stipulation.”

The court questioned Mr. Young, who stated he understood he had a right to a hearing on the admissibility of the statements but was agreeing instead that all of his statements were admissible.

During trial, Mr. Young’s videotaped confession was played for the jury. At the conclusion of the evidence, the jury returned a guilty verdict. Mr. Young appeals.

Mr. Young argued his defense counsel provided ineffective assistance of counsel by stipulating to the admission of Mr. Young’s confession when there was no independent evidence apart from his confession, under the corpus delecti rule, sufficient to establish all the elements of first degree murder.

For those who don’t know, corpus delicti is a term from Western jurisprudence referring to the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime.

The Court of Appeals rejected Young’s arguments. It reasoned that in a homicide case, the corpus delecti generally consists of two elements: (1) the fact of death, and (2) a causal connection between the death and a criminal act. It can be proved by direct or circumstantial evidence, which need not be enough to support a conviction or send the case to the jury. In assessing whether there is sufficient evidence of the corpus delicti independent of a defendant’s statements, the Court assumes the truth of the State’s evidence and all reasonable inferences from it in a light most favorable to the State.

Here, the corpus of the crime of murder was amply established by (1) a dead person; (2) multiple gunshot wounds that established a casual connection with a criminal act; (3) testimony eliminating the possibility of self-inflicted wounds; and (4) the recovery of the weapon miles away from the dead body.

Furthermore, the Court reasoned that the State is not required to present independent evidence of the defendant’s mental state. It reasoned the State is not required to present independent evidence sufficient to demonstrate anything other than the fact of death and a causal connection between the death and a criminal act.

Finally, the Court rejected Mr. Young’s claims of ineffective assistance of counsel:

“It appears from his closing argument that Mr. Young’s trial lawyer believed his client’s videotaped interview would advance that argument. Mr. Young fails to demonstrate that his trial lawyer lacked a strategic reason for the stipulation.”

With that, the Court of Appeals confirmed Mr. Young’s conviction.

My opinion? This case represents a fairly straightforward analysis of the corpus delicti defense. I’ve had great success when it applies, and have managed to get many criminal charges reduced or dismissed under this defense. However, the corpus delicti defense is extremely narrow.

Aside from the defendant’s confession, there must be virtually NO independent evidence connecting the defendant to the crime. Here, other evidence existed which implicated Mr. Young and the defense was found inapplicable.

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.