Category Archives: Jail

Jails Aren’t Liable to Control Released Inmates.

Bellingham Defense Attorney, Department of Corrections, Duty to Control, Jail, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In Binschus v. Skagit County, the WA Supreme Court held a jail’s duty to supervise and control inmates during incarceration does not include a general duty to somehow prevent inmates from committing crimes after they are lawfully released from incarceration.

Isaac Zamora was incarcerated at Skagit County Jail for nonviolent crimes from April 4, 2008, until May 29, 2008, when he was transferred to Okanogan County Corrections Center. Zamora then served the rest of his sentence at Okanogan County Corrections Center and was released on August 2, 2008.

On September 2, 2008, Zamora had a psychotic episode and went on a shooting spree in Skagit County. He ultimately killed six people and injured several others.

Some of his victims and their families sued a number of parties, including Skagit County. The plaintiffs alleged that Skagit County failed to exercise ordinary and reasonable care while Zamora was incarcerated in Skagit County Jail several months prior to the shooting.

The trial judge granted summary judgment to Skagit County and ultimately dismissed the causes of action against the Skagit County jail. The Court of Appeals reversed. Ultimately, the case was appealed to the WA Supreme Court.

The Court reasoned that, as a general rule, people and institutions are not responsible for preventing a person from physically harming others. However, there is an exception when a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.

Although the  “duty to control” relationship naturally extends between a jail and an inmate, the court clarified, when the relationship begins and when it ends:

“We did not previously, and do not today, expand it to a general duty to prevent a person from committing criminal acts in the future . . . The practical implications of imposing such a broad duty on jails are striking. By some estimates, the recidivism rate is well over 50 percent . . . Thus, one could argue that in almost any case, it is foreseeable that an inmate may commit another crime after release. Are jails civilly liable for those crimes if they failed to take adequate measures to prevent that foreseeable recidivism? Such an expansive interpretation is not supported . . .”

With that, the WA Supreme Court concluded that jails have a responsibility to control violent inmates while they are incarcerated, but they do not have a general duty to prevent such inmates from committing crimes after they are lawfully released from incarceration.

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.

Jail Phone Conversations Are Admissible At Trial

Bellingham Defense Attorney, Constitutional Rights, Evidence, Jail, Privacy, Robbery, Self-Incrimination, Skagit County Criminal Defense, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , ,

In State v. Dere, the Court of Appeals Division I held that a telephone conversation between a jail inmate and a person outside the jail is not a private communication when the participants are advised that the call will be recorded and must confirm their understanding that they are being recorded. Also, a recording of such a conversation is admissible evidence against the noninmate as well as against the inmate.

Defendant Zakaria Dere was a co-defendant in a Robbery. Before the trial, Dere posted bail and was released from custody. Dere received several calls from Mohamed Ali, a codefendant who remained in jail. Their conversations were recorded by the jail’s telephone system.

Unfortunately for Dere, the recordings gave evidence that Dere was an accomplice in the robbery. He argued a CrR 3.5 motion to suppress., however, the trial court denied his motion. Ultimately, Dere’s statements were used against him by the State at his trial. He was found guilty of Robbery. He appealed.

WASHINGTON PRIVACY ACT

The Court of Appeals addressed Dere’s argument that the admission of the recordings violated the Washington Privacy Act under RCW 9.73. Under this statute, recordings obtained in violation of the act are inadmissible for any purpose at trial. The act also makes it unlawful to intercept or record private communications transmitted by telephone without first obtaining the consent of all participants in the communication. Dere cited State v. Modica in arguing that a communication is private when parties manifest a subjective intention that it be private and where that expectation is reasonable.

Despite Dere’s arguments, the Court of Appeals reasoned that Dere’s conversations with Ali were not private communications. Dere and Ali did not have a reasonable expectation of privacy in their telephone conversations because they knew their calls were recorded and subject to monitoring. “Because the calls were not private communications, the privacy act does not apply,” reasoned the Court.

WASHINGTON CONSTITUTION

Next, the Court of Appeals addressed Dere’s claims that the recording of his calls violated his constitutionally protected privacy rights. The Court reasoned that although Article I, section 7 of the Washington Constitution generally protects the privacy of telephone conversations, calls from a jail inmate are not private affairs deserving of protection:

” A jail recording system . . . and its operation typically demonstrates that at least one participant in a conversation has consented to the recording. The inspection of other forms of communication with inmates, such as ingoing and outgoing mail and packages, is not an invasion of a privacy interest protected by the Washington Constitution so long as the inmate is informed of the likelihood of inspection.”

With that, the Court of Appeals concluded there was no violation of Dere’s constitutional privacy interests. The Court upheld Dere’s Robbery conviction.

My opinion? Obviously, this case shows that suppressing jail inmate conversations is difficult to impossible; especially when the automated voice informs the callers that the conversations are being recorded. I always advise my jailed clients to limit their phone conversations with friends and family members.

Speaking from experience, I’ve conducted many trials where Prosecutors use recorded jail inmate against my clients in attempts to incriminate them. Usually, the recorded conversations are suppressible on other grounds as being prejudicial, irrelevant, confusing, misleading etc. under ER 403. Still, trying to suppress incriminating statements is a terrible position to be in; especially when avoidable.

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.

Is Cash Bail Effective?

Bail, Bellingham Defense Attorney, Constitutional Rights, Court Fines, Due Process, felony, Jail, misdemeanor, Race & Law, Studies, Whatcom County Criminal Defense, , ,

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Three research studies released this month further confirm the ineffective, discriminatory, and unsafe influence of money bail in U.S. criminal justice systems.

In The Heavy Costs of High Bail: Evidence from Judge Randomization, a Columbia Law and Economics Working Paper by Arpit Gupta, Christopher Hansman, and Ethan Frenchman, describes how assigning money bail to people accused of crime in Philadelphia and Pittsburgh increases the likelihood of conviction by 12% and increases recidivism by 4%. Ultimately, the authors found that the use of money bail is not effective – it “does not seem to increase the probability that a defendant appears at trial,” and actually makes us all less safe.

In her University of Pennsylvania Law School Working Paper, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, Megan Stevenson reports that people arrested for crimes in Philadelphia and detained due to their inability to pay money bail face up to a 30% increase in convictions—driven by increased guilty pleas—and an additional 18 months of incarceration compared to those who are able to afford bail.

Finally, the Prison Policy Initiative (PPI) released an analysis of national data that gives context to the Columbia and University of Pennsylvania papers. In Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time, PPI found that “most of the people who are unable to meet bail fall into the poorest third of society.” Their median income – only $15,109 prior to incarceration – was less than half of the income of non-incarcerated people, and yet the median bail amount nationally is almost a full year’s income for the typical person unable to post a bail bond. Money bail, PPI concludes, results in the unnecessary and excessive detention of poor people, essentially jailing people for their poverty.

This research highlights what legislators, practitioners, and taxpayers are increasingly recognizing: money bail doesn’t work, is discriminatory, and makes communities less safe.

Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute released this statement about the research:

“With these recent research findings, there should no longer be any doubt, anywhere, that money bail unfairly punishes the poor while also making everyone less safe. Our 3DaysCount campaign calls for replacing the broken money bail system with commonsense and proven solutions to support people being successful on pretrial release.”

Congressman Ted Lieu, sponsor of the No Money Bail Act of 2016, said the following:

“Our nation must stop criminalizing poverty, and these new studies provide crucial data proving that being poor increases your chance of jail time and conviction.  This kind of research is crucial to supporting the No Money Bail Act of 2016, which would eliminate the use of money bail at the federal level and incentivize states to end the use of bail through the withholding of federal grants. We can no longer stand by in good conscience while Americans, presumed innocent, are deprived of their liberty because they can’t afford bail. Justice in America should not be bought and paid for.”

Additionally, judicial leaders across the nation joined together to call attention to these findings.Chief Justice W. Scott Bales, Arizona Supreme Court; Chief Justice Patricia Breckenridge, Missouri Supreme Court; Chief Justice E. James Burke, Wyoming Supreme Court; Chief Justice Tani Cantil-Sakauye California Supreme Court;  Justice Charles W. Daniels, New Mexico Supreme Court; Chief Justice Matthew B. Durrant,Utah Supreme Court; Chief Judge Nan G. Nash, Second Judicial District, New Mexico;Chief Justice Mark E. Recktenwald, Supreme Court of Hawaii; and Chief Justice Robert J. Torres, Jr., Supreme Court of Guam issued the following statement:

“People should not be held in jail pending the disposition of charges merely because they are poor and cannot afford bail.  Recent research suggests that we can identify better ways to make release decisions that will treat people fairly, protect the public, and ensure court appearances.”

My opinion? This national effort is gratifying. Few people understand how incarceration negatively affects job opportunities, families and ability mental/emotional wellness. In my Legal Guide titled, “Making Bail,” I discuss how one of the greatest services a competent defense attorney can do for their clients is assist in getting them released from jail as soon as possible on either a reduced bail amount which is lower than the Prosecutor’s recommendations or that the defendant be released without bail altogether.

One opportunity to lower/rescind bail is at the defendant’s first appearance or arraignment. Another opportunity exists through a Bail Review Hearing.

Under CrR 3.2, judges must review the nature of the pending criminal charges, a defendant’s prior criminal history, their history of failing to appear at past court hearings, and their ties to the community (property ownership, employment, family, school, etc). Factoring all of this, the judge decides whether to lower bail or release the defendant altogether.

Also, CrR 3.2 allows release of defendants to the care of willing and responsible members of the community, including family members. Also, judges may be persuaded to impose other pretrial release conditions such as mandatory curfews, staying away from businesses serving alcohol. Almost everything is negotiable.

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.

Youth as Mitigating Factor

Assault, Bellingham Defense Attorney, Constitutional Rights, Due Process, Eighth Amendment, Exceptional Sentencing, felony, Firearm, Jail, Sentencing, Violent Crime, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Solis-Diaz, the WA Court of Appeals Division II held that a juvenile defendant who was tried as an adult for numerous violent felony crimes involving firearms is entitled to a sentencing at which the judge must conduct a meaningful, individualized inquiry into whether the defendant’s youth should mitigate his sentence.

Solis-Diaz was 16 years old in 2007, when he participated in a gang related drive-by shooting in Centralia. He was charged with six counts of Assault in the First Degree, each with a firearm sentencing enhancement; one count of Drive-by Shooting; and one count of Unlawful Possession of a Firearm in the Second Degree. He was tried as an adult. The jury found him guilty on all counts, and the trial court imposed a sentence of 1,111 months in prison.

Solis-Diaz requested an exceptional downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of 1981 (SRA) operated to impose a clearly excessive sentence and that Solis-Diaz’s age indicated diminished capacity to understand the wrongfulness and consequences of his actions. The judge denied the request and again imposed a standard-range sentence of 1,111 months in prison. Solis Diaz appealed.

The Court of Appeals held that under the SRA, a sentencing court must generally sentence a defendant within the standard range. Pursuant to the SRA’s multiple offense policy, standard range sentences for multiple serious violent offenses are to be served consecutively and not concurrently.

This is important. For those who don’t know, a consecutive sentence is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are “tacked” together, so that sentences are served one after the other. In contrast, a concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is five years.

The Court of Appeals further reasoned that a court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. One such mitigating circumstance exists if the operation of the multiple offense policy results in a presumptive sentence that is clearly excessive.  When the resulting set of consecutive sentences is so clearly excessive under the circumstances that it provides “‘substantial and compelling reasons’” for an exceptional sentence below the standard range, the sentencing court may grant that exceptional downward sentence.

Additionally, the Court of Appeals relied on the WA Supreme Court’s recent decision in State v. O’Dell. In that decision, and similar to the defendant here, O’Dell was a juvenile who was also tried and sentenced as an adult to a very serious felony crime (rape, in O’Dell’s case). At O’Dell’s sentencing, the trial court ruled that it could not consider O’Dell’s age as a mitigating circumstance and imposed a standard range sentence of 95 months.  The Supreme Court disagreed with O’Dell’s trial court: “[I]n light of what we know today about adolescents’ cognitive and emotional development, we conclude that youth may, in fact, “relate to a defendant’s crime.”

The Court of Appeals followed O’Dell and said the following:

“The same logic and policy that led the Supreme Court to require the consideration of the youth of a young adult offender would apply with magnified force to require the same of Solis-Diaz, who committed his crimes while a juvenile. As did the trial court in O’Dell, the trial court here decided that under Ha’mim it could not consider the defendant’s youth as a mitigating factor in sentencing. As did the trial court in O’Dell, the trial court here abused its discretion in refusing that consideration. Our Supreme Court’s analysis in O’Dell compels the same result: reversal of Solis-Diaz’s sentence and remand for a new sentencing hearing to meaningfully consider whether youth diminished his culpability.”

The WA Court of Appeals even offered a litmus test in making these determinations:

“In short, a sentencing court must take into account the observations underlying Miller, Graham, Roper, and O’Dell that generally show among juveniles a reduced sense of responsibility, increased impetuousness, increased susceptibility to outside pressures, including peer pressure, and a greater claim to forgiveness and time for amendment of life. Against this background, the sentencing court must consider whether youth diminished Soliz-Diaz’s culpability and make an individualized determination whether his “capacity to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law” was meaningfully impaired.”

The WA Court of Appeals concluded that the sentencing court erred in failing to consider whether the operation of the SRA and Solis-Diaz’s youth at the time he committed the crimes should mitigate his standard range sentence and warrant an exceptional downward sentence.

Consequently, the Court of Appeals vacated Solis-Diaz’s sentence and remanded for re-sentencing back to the trial court. The Court of Appeals also noted that Solis-Diaz may move to disqualify the prior sentencing judge.

My opinion? I’m very pleased Division II is embracing O’Dell, an opinion which I’ve discussed in my blog titled, “State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing.” Furthermore, I’m pleased that Division II also offered a workable litmus test in determining these issues juvenile sentencing for adult crimes. Very good. It not only shows the Courts are following O’Dell, they are also supporting it and offering guidelines for future decisions involving juvenile justice.

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.

Some Bellingham Inmates Transported Out Of County

Bellingham, Bellingham Defense Attorney, felony, Jail, law enforcement, misdemeanor, Whatcom County Criminal Defense, , ,

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Today, the Bellingham Herald reported that the City of Bellingham shall transport inmates to a King County jail if the Whatcom and Yakima County jail don’t have room available.

Recently, council members approved a contract with the South Correctional Entity regional jail (SCORE) located in King County.
It was reported that because the City did not promise to send a certain number of inmates to the facility per year, the cost to house someone there would be charged at higher rate of $157 per day.

The City has moved inmates to Yakima County Jail on a weekly basis since mid-January, in response to Whatcom County Sheriff Bill Elfo’s policy shift in the new year to keep the population in the main Whatcom County Jail at or below about 212 inmates. The daily cost to house inmates in Yakima is about $54.

Under the agreement, the City shall transfer inmates who only have misdemeanor charges in Bellingham. The county is still responsible for all people being held on felony charges, regardless of which agency books them into jail.

It was reported that since the beginning of the year, there have been on average about seven inmates with Bellingham-only charges in the main jail on any given day. Consequently, the City’s inmates are a relatively small percentage of the total jail population.

As of Friday, March 18, the City had eight people in the main jail, 13 in the work center on Division Street, and seven people on electronic home monitoring through the City’s contract with Friendship Diversion Services.

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.

Bellingham’s New & Innovative Jail Alternatives Program

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Recently, the Bellingham City Council approved a new and innovative program to expand alternatives to incarceration and help reduce Whatcom County Jail overcrowding issues.

The Bellingham Reduced Incarceration Challenge (BRIC) program allows eligible defendants to serve their incarceration through a private, non-profit agency, Friendship Diversion Services (FDS).

ELECTRONIC HOME MONITORING UNDER THE BRIC PROGRAM

Here, FDS provides jail alternatives such as Electronic Home Detention (EHD) and monitoring through such devices as SCRAM once the defendant is screened and deemed eligible. GPS technology allows 24-hour monitoring. Participants on EHD must remain in their residence unless the Court permits them to leave for a specific purpose. However, they may leave the home for certain verified periods for approved activities to include school, work, treatment, counselling, probation/parole, medical/ dental appointments, scheduled court hearings, attorney appointments and child care provisions.

While there are fees associated with this jail alternative, the costs are significantly lower than traditional jail and/or jail alternatives.

Even more attractive, this alternative sentencing program is especially helpful for those with medical issues that prevent them from serving traditional jail or alternatives since they can serve their sentence at home and continue their prescribed medical treatment.

ELIGIBILITY

Anyone serving through FDS must meet statutory eligibility criteria, a screening assessment and have a sentence of more than one day. The present costs associated with FDS commitment is as follows:

*$50 hook-up fee (for ankle bracelet)

*$14.50 per day (GPS)

*$25.00 per day (GPS and SCRAM)

All defendants will be eligible to apply for financial assistance if FDS finds that they qualify as low income during the intake screening process.

HOW IT WORKS

At sentencing, the Court enters a Home Detention Order (HDOR) authorizing the defendant to serve his/her sentence through FDS, if eligible. Any request for credit for time served (CFTS) should be presented with verification at the time of sentencing. The defendant is then initially screened to determine eligibility. If deemed eligible, the defendant must comply by first contacting FDS by phone within 1 business day to set an intake appointment.

At sentencing, the defendant signs a promise to appear for a Jail Review scheduled approximately 2 weeks after sentencing. That review hearing is stricken once the Court receives confirmation from FDS that the defendant has complied. A sample copy of this HDOR is attached. If requesting credit for time served (CFTS) towards any jail recommendation, the attorneys should come prepared at sentencing with documentation verifying any jail already served since the Court cannot obtain that information.

Any violations of the HDOR are reviewed by the Court to determine appropriate sanctions including removing the defendant from the FDS program and withholding jail alternatives for the balance of the sentence.

The Court intends to expand the BRIC program to encourage rehabilitation and reintegration. These programs benefit both the individual and the community. Programs being considered, among other things include re-licensing, theft awareness classes and even the possibility of work crews.

My opinion? I’m impressed. The BRIC program is a new and innovative way to facilitate EHM without having to get Whatcom County Jail Alternatives or a private home monitoring company involved. Good stuff.

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.

Wrongful Incarceration

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, DUI, Jail, Misidentification, Qualified Immunity, Whatcom County Criminal Defense, , ,

In Garcia v. County of Riverside, the 9th Circuit Court of Appeals held that an individual’s lawsuit against police may proceed when the jail did not engage in readily available identity checks to ensure that they were not detaining the wrong person.

Plaintiff was arrested for DUI in Riverside County, California, on November 26, 2012. He was booked in a Riverside County jail. A booked individual is electronically fingerprinted through a system called “Livescan.” The Livescan image is then sent to the California Department of Justice.

When Riverside County Sheriff’s Department (RCSD) officers searched for Plaintiff “Mario Garcia,” they found a felony warrant for Mario L. Garcia issued by the Los Angeles Superior Court in 1994. The warrant described Mario L. Garcia using only his first and last name, date of birth, height, and weight. The first and last name and birth date matched Plaintiff’s own. However, the authorities did not forward information on Mario L. Garcia’s biometric identifiers, middle name, or criminal record, all of which were different from Plaintiff’s.

AS a result, RCSD matched Plaintiff to the warrant and told him that he would be detained, despite Plaintiff’s protests that he was not Mario L. Garcia and that he had been mistakenly detained before based on the same warrant.

The next day Plaintiff was transferred to an LA County jail, where he alleges that he repeated his complaints to LASD officers. Plaintiff contends that LASD knew or should have known that he was not Mario L. Garcia for several reasons: (1) their middle names do not match; (2) their height and weight differ considerably (Mario L. Garcia is listed as 5’1″, 130 lbs. Plaintiff is 5’10”, 170 lbs.); (3) Plaintiff’s biometric identifiers, including fingerprints and CII number, did not match the subject’s; and (4) Plaintiff’s criminal history, which was linked in the system to his fingerprints, did not match the subject’s.

Plaintiff sued under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment and Fourteenth Amendment by LASD, LA County, and several other defendants. He also brought state-law claims against LASD and LA County. He claimed that it is the policy of LASD to ignore identification processes, to ignore prisoners’ complaints of misidentification, and to accept an outside agency’s determination that an arrestee is the subject of a warrant rather than conduct an independent identity check upon booking in LA County.

The LASD and LA County’s defense was “Qualified Immunity.”

For those who don’t know, “Qualified Immunity” protects government officials from lawsuits alleging that they violated plaintiffs’ rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

The “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Here, the 9th Circuit decided that law enforcement’s failed to investigate his claim of mistaken identity after he was arrested. There was an obvious physical discrepancy between the warrant subject and Mr. Garcia, the most obvious which consisted of a nine-inch difference in height. That, accompanied by a detainee’s complaints of misidentification, should prompt officers to engage in readily available and resource-efficient identity checks, such as a fingerprint comparison, to ensure that they are not detaining the wrong person.

My opinion? Excellent decision. Civil rights violations do not always involve incidents of police shootings or beatings. Wrongful incarceration is covered, too. I’m happy the 9th Circuit understands this.

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

State v. Bentura-Ozuna: Letter Found in Jail Cell Supports Conviction for Witness Intimidation

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Intimidating a Witness, Jail, Jury Trial, Knapstad Motion, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Amazon.com: Jail Mail: Appstore for Android

In State v. Bentura-Ozuna, the WA Supreme Court held that the defendant committed the crime of Intimidating a Witness  under RCW 9A.72.110(2) when a letter found in his jail cell directed a threat to a former witness because of the witness’s role in an official proceeding. The statute defines a “threat” to mean “to communicate, directly or indirectly, the intent to harm another.”

Here, In June 2010, Ozuna was incarcerated in the Yakima County Department of Corrections (Yakima County Jail). Ozuna was awaiting sentencing for a prior conviction. The conduct underlying that conviction involved Augustine Jaime Avalos, a member of the same gang as Ozuna. Avalos had testified against Ozuna in Ozuna’s underlying trial and was also incarcerated in the Yakima County Jail.

On June 8, when Ozuna was moved from one prison cell to another, a corrections officer found two unstamped, unsealed letters in his possession. The deputy opened the letters. One letter was meaningless to this issue. The other letter said the following:

Ey homie, I just got your (unreadable). Well it was a blessing to hear from you. It put’s a smile on my face to know that your ready to ride for me. . .. As you already know, I agreed to a plea deal for 10 years 9 months cause of a pussy that don’t know how to ride or Die. He would rather break weak than to honor our sacred code of silence. He is now marked a rat and a piece of shit in my book He has sealed his fate and now it’s just a matter of time. He rode with me and was given my trust and he decided to dishonor that privaledge …. [A ]11 I can say for that fool is, you know what time it is. You guys let him live in luxery for way to long already. . . How can you live with a rata like that and still be able to rest in peace in that puto’s presence? I hope and pray for satisfaction before I leave this building and may that fool suffer and Die in his rat hole. Fucken snitch bitch rat! … That puto took 10 years of my life and a fucken leva from my barrio, “my big homie” “Gorge” is living in the same house as him …. Gorge could of did something but just decided to let that puta slide and live under the same roof with him …. Tell that fool he’s a piece of shit just like him. Let’em know that this is Campana Gang! He put’s the crack in our bell. No loyalty, no honor, no heart! … Tell’ em he’s as good as dead to me.

Let that fool feel the wrath and let’ em know the rata that he is and tell’em that I siad that bad things come to those that snitch. May he rest in piss … So now you know what I want primo, don’t hesitate vato. Take action, reep the rewards later. Don’t think, just act. … Hit me up later after the shit get’s handled. Do it on the 25 cause that’s when I have court, and I want to have a smile on my face that day knowing that … fool’s getting a lil taste of what’s coming to him. The 25 is the day I get sentenced. Good looking out Primo, don’t let me down fucker! … Tell’em that Vanessa’s gonna be the one to set him up for us, mark my words! Show him how set ups are done. There just waiting for him to get out. … Lol. … Satisfaction will be mine! Let’ em know that he fucked up.

On July 9, Avalos was assaulted by inmate David Soto while in a courthouse holding room. Avalos received stiches at the hospital for his injuries. The inmates who were present when Avalos was injured were not cooperative. Ozuna was not present during the assault.

At trial, the Prosecution produced ample testimony confirming that there was a threat to another person in the letter, however,  no evidence established that the letter was delivered to anyone before the officer confiscated it.

The State also produced expert testimony about gang culture from a Sunnyside Police Department officer who worked in the Yakima area and was knowledgeable about the local gangs, as well as the individuals at issue here.

Similarly, two other officers from the Yakima County Jail discussed the status of being a “shot caller” or “tank boss,” meaning someone who has elevated decision-making authority within a gang or prison. One officer testified that Ozuna was a “shot caller” in the Yakima County Jail.

Before trial, Ozuna argued a Knapstad motion to Dismiss the charge for lack of evidence. Defense counsel argued that “directing a threat at somebody means not keeping it to yourself; it means directing it to somebody, not necessarily … to the intended victim, but to somebody. The Court denied the Knapstad motion to dismiss.

The trial proceeded, and the jury returned a verdict convicting Ozuna of Intimidating a Former Witness. The trial court entered judgment and imposed an exceptional sentence of 10 years based on the jury’s finding of gang-related aggravating factors. Ozuna appealed.

The WA Supreme Court reasoned that a communication must be transmitted and received. However, a person may “direct a threat” under the intimidation of a former witness without that threat being communicated to the threat’s target. “The threat may be transmitted to a third party.” Consequently, there was sufficient evidence at trial for a rational jury to find that Ozuna directed a threat to a third party or to Avalos himself.

The court further reasoned that Ozuna had the state of mind, motivation, and opportunity to direct a threat regarding Avalos. Avalos had been a longtime gang member with Ozuna, and Avalos testified against Ozuna. They were incarcerated in the same prison. Ozuna had gang allies in the prison. Avalos had enemies. Furthermore, testimony from witnesses established the gang follows a strict “no snitch” code, enforced by violent retaliation.

Here, Ozuna’s confiscated letter reveals his state of mind. It said, for example, “Let that fool feel the wrath and let’ em know the rata that he is and tell him that I siad that bad things come to those that snitch. May he rest in piss.” Additionally, the jury could consider the timing of Avalos’s assault by a member of Ozuna’s gang, David Soto. “The evidence is sufficient insofar as it establishes Ozuna’s state of mind, motivation, and opportunity to direct a threat regarding Avalos.”

The WA Supreme Court affirmed Ozuna’s conviction.

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

Whatcom County Jail: An Inmate’s Perspective

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The Bellingham Herald discussed Whatcom County Jail’s deplorable and dangerous conditions.

In the article Staff & Inmates Say It’s Time For A New Whatcom County Jail, Sheriff Bill Elfo is reported as saying the current Whatcom County Jail is consistently packed beyond its designed capacity, with conditions that pose safety issues for guards and inmates.

On March 18, Elfo sat down with Bellingham City Council during a special meeting to discuss the need for a new county jail and request the city’s financial support.

The jail’s current legal capacity is somewhere between 298 and 362 inmates, but the average daily population in 2014 was 403 people.

Inmates have broken out the windows in their cells onto the street below and picked away at the grout in their cinder block walls, creating small pass-throughs from cell to cell; sewer lines have backed up into the sheriff’s office; nearly every space – shower rooms, indoor recreation areas – has been used to house inmates at one time or another as the population has fluctuated well beyond capacity.

The video above captures commentary from jail staff, inmates and administration weighing in on the issue.

My opinion? Sure, certain aspects of the criminal justice system are punitive. They’re made to have inmates consider their surroundings and force them to take accountability for the crimes they’re committed.

Nevertheless, the old and overcrowded jail creates significant Human Rights issues and potentially extraordinary liability costs if a worst-case-scenario tragedy happened. According to the National Institute of Corrections recent evaluation of the jail, it was determined that if a fire or other emergency were to happen, such as an earthquake, the loss of life at the jail would be “catastrophic.’ Though the building is largely cinder block, mortar and concrete, if mattresses, clothing and/or other items were set on fire, smoke could easily fill a room or floor of the building and suffocate those inside.

It’s time for a new jail with better living conditions.

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.

What Caused the Decline In Crime?

Bellingham Defense Attorney, Department of Corrections, Jail, Studies, , ,

What's Behind The Decline In Crime?

A new report examines the dramatic drop in crime nationwide over the past two decades — and analyzes various theories for why it occurred.

In What Caused the Crime Decline? a team of economic and criminal justice researchers examined over 40 years of data, gathered from 50 states and the 50 largest cities. Their work examines one of the nation’s least understood recent phenomena – the dramatic decline in crime nationwide over the past two decades – and analyzes various theories for why it occurred.

It concludes that over-harsh criminal justice policies, particularly increased incarceration, which rose even more dramatically over the same period, were not the main drivers of the crime decline. In fact, the report finds that increased incarceration has been declining in its effectiveness as a crime control tactic for more than 30 years. Its effect on crime rates since 1990 has been limited, and has been non-existent since 2000.

More important were various social, economic, and environmental factors, such as growth in income and an aging population. The introduction of CompStat, a data-driven policing technique, also played a significant role in reducing crime in cities that introduced it.

The report concludes that considering the immense social, fiscal, and economic costs of mass incarceration, programs that improve economic opportunities, modernize policing practices, and expand treatment and rehabilitation programs, all could be a better public safety investment.

Nobel laureate Dr. Joseph E. Stiglitz called the report “groundbreaking” in a foreword.

This is interesting reading. Also, their research contained information on how/why specific states’ drop-off in crime happened.

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.