Category Archives: Jury Instructions

Cross-Racial Identification

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Frontiers | The Own-Race Bias for Face Recognition in a Multiracial Society

In State v. Butler, the WA Supreme Court upheld a defendant’s conviction for assault and held there was insufficient evidence supporting a jury instruction for false cross-racial identification.

FACTUAL BACKGROUND

Mr. Butler, a Black man, was convicted of assaulting two security officers in separate incidents at two Seattle light rail stations. Both assaults were caught on camera and the assailant appeared to be the same person in both. One of the victims, who appears to be white, identified Butler as his assailant at trial. The victim had not made an out-of-court identification. The victim did not identify Butler until the CrR 3.5 hearing and then at trial.

Naturally, the primary issue at trial was the identity of the assailant. The State sought to prove Butler was the person in the videos. The State argued that Butler was of the same build and race as the assailant. He also wore the same clothes and carried the same items—including the same shoes, skateboard, and backpack.

Butler asked the trial court to instruct the jury according to the pattern jury instruction on eyewitness identifications. It includes optional bracketed language that the jury may consider the witness’s familiarity or lack of familiarity with people of the perceived race or ethnicity of the perpetrator of the act.  The trial court agreed to give the pattern jury instruction, but declined to include that optional language. Mr. Butler was found guilty at trial.

On appeal, Butler argued that the trial court denied his right to present a defense by failing to give the cross-racial identification portion of the pattern instruction. The Court of Appeals concluded that the trial court did not abuse its discretion because there was insufficient evidence supporting the instruction, and it upheld Butler’s conviction. The WA Supreme Court addressed the issue and granted review.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court acknowledges racial bias is pervasive in our society.  However, it declined the chance to adopt a model jury instruction on cross-racial eyewitness identifications or to require that instruction be given whenever the defendant requests it. The Court’s review was strictly limited to considering whether the optional language on cross-racial identification should have been given.

Although Butler argued for a violation of his Due Process right to present a defense, S.Ct. concludes Butler was able to attack AV’s credibility and pursue his defense on the unreliability of the identification with the instructions that were given.

There was no abuse of discretion in denying the requested language in the instruction because the court reasonably concluded there was not sufficient evidence in the record supporting such a jury instruction.

“We leave for another day broader questions about what steps courts should take to mitigate the significant risk that eyewitness identifications are unreliable in the cross-racial context.” ~WA Supreme Court.

CONCURRING OPINIONS – CHIEF JUSTICE STEVEN GONZALEZ & JUSTICE MARY YU

Chief Justice Steven Gonzalez wrote a separate concurring opinion. He reluctantly concurred only because Butler did not lay a foundation for the instruction he requested. However, Justice Gonzalez also took the opportunity to offer a deeper perspective on the negative impacts of improper identification of defendants.

“Mistaken eyewitness identifications have resulted in many innocent people being wrongfully convicted in our nation . . . The particular weaknesses of cross-racial identifications have been well known and well documented for decades.” ~WA Supreme Court Chief Justice Steven Gonzalez

Justice Gonzalez urged our Washington Pattern Jury Instructions Committee to craft an instruction that reflects what we have learned about the weaknesses of cross-racial identification.

Justice Mary Yu also wrote a concurring separate opinion. Similar to Justice Gonzalez, she recommended that Washington adopt an instruction that fully and accurately reflects the proven weaknesses of cross-racial identification.

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

Entrapment & Sex Crimes

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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.

Imprisoned At 7-11

Assault, Bellingham Defense Attorney, felony, Harassment, Jury Instructions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Unlawful Imprisonment, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Why going to 7-Eleven has become a political act - Los Angeles Times

In  State v. Dillon, the WA Court of Appeals held that in Unlawful Imprisonment charges, the State must prove that the defendant knowingly restrained another person, not that the defendant knowingly acted without legal authority.

BACKGROUND FACTS

On December 21 2017, the soon-to-be victim Mr. Favors entered a 7-Eleven after he got off his bus. Favors encountered the soon-to-be defendant Mr. Dillon standing near the entrance to 7-Eleven. Favors noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors thought that Dillon was panhandling and told him he did not have change. Favors continued into the 7-Eleven.

Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished making his purchase and started walking towards the exit. Dillon was standing three feet in front of the exit. Dillon told Favors in a slurred voice to “get your ass back over there” and threatened to cut and shoot him. Favors feared that the situation would escalate and went to the back of the store. Favors tried to leave a second time and Dillon said “I told you one time; get your ass back over there.” Favors, who is African-American, recalled hearing a racial slur. Favors discreetly called 911.

Police arrived and arrested Dillon. At one point he  “reared his head back” and hit a police officer on his forehead and the bridge of his nose. The officer recalled that Dillon was
intoxicated, his balance was poor, and was making incoherent statements.

The State initially charged Dillon with Third Degree Assault of the police officer and Harassment of Favors, but amended the information to include Unlawful Imprisonment of Favors.

The defense requested a jury instruction on Voluntary Intoxication and the State did not object. The jury acquitted Dillon of felony harassment, but convicted him of third degree assault and unlawful imprisonment.

Dillon appealed on the issue of whether State must prove beyond a reasonable doubt that Dillon knowingly acted without legal authority.

COURT’S ANALYSIS & CONCLUSIONS

The State presented sufficient evidence that a reasonable juror could find beyond a reasonable doubt that Dillon knew he was acting without legal authority when he committed the crime of Harassment.

“The threats that Dillon made had no lawful purpose. Depending on the level of intoxication, a person under the influence can still form the requisite intent to know that their actions are unlawful.”

Dillon made threats to “cut” and “shoot” Favors, both of which demonstrate that Dillon knew he was acting without legal authority. Dillon “jumped” at Favors to prevent him from exiting the 7-Eleven, further supporting a finding that Dillon knew his actions were unlawfully restraining Favors.

Regarding the Unlawful Imprisonment conviction, the WA Court of Appeals ruled that Dillon did not say anything that indicated he thought he had legal authority to restrain Favors. Also, the Court denied the argument denied the defense of Escape and held that that Mr. Favors could not have safely departed 7-11 due to Mr. Dillon’s actions:

“Viewed in the light most favorable to the State, Favor’s testimony is sufficient to find, beyond a reasonable doubt, that Dillon restrained Favors’s movement, in a manner that substantially interfered with his liberty through intimidation, threats of violence, and by blocking the 7-Eleven exit.”

With that, the Court of Appeals upheld Dillon’s convictions.

Please contact my office if you, a friend or family member face criminal charges like Assault, Harassment or Unlawful Imprisonment. It’s imperative to hire an experienced and effective criminal defense attorney who knows the law.

Rape By Forcible Compulsion or Consent?

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GDPR Brief: What is the difference between research ethics consent and data protection consent?

In State v. Knapp, the WA Court of Appeals held a defendant charged with rape by forcible compulsion is not entitled to a jury instruction that requires the State to prove the absence of consent beyond a reasonable doubt.

BACKGROUND FACTS

Mr. Knapp and Ms. Spaulding met in high school and were friends for more than a decade. On February 7, 2016, Ms. Spaulding was preparing to watch the Super Bowl when Knapp came to her home. Ms. Spaulding let him in. The events following this were disputed.

According to Ms. Spaulding, Knapp began to make sexual comments toward her and expressed an interest in having sex. Ms. Spaulding denied his advances. Knapp then left, but soon returned to the home, claiming he forgot his bandana. Ms. Spaulding let him in again and while she was sitting on the couch, Knapp threw her to the ground and pulled down her pants.

Ms. Spaulding screamed for her neighbors, but they did not hear her. Knapp then used his bandana to gag her. The struggle continued until Knapp pinned her against a wall and raped her. Ms. Spaulding continued to say, “No,” “Stop,” and “Don’t do this.” Knapp left, and Ms. Spaulding called her mother and then the police. Ms. Spaulding was taken to the hospital where she underwent a sexual assault examination.

According to Knapp, he and Ms. Spaulding were “friends with benefits” for years and engaged in sex together on and off. After Ms. Spaulding let him in the first time, Ms. Spaulding realized Knapp was high on methamphetamine and she hinted that she wanted some. Knapp refused to give her any. Ms. Spaulding became upset, and Knapp decided to leave.

After he left, Knapp realized he forgot his bandana and returned to retrieve it. Ms. Spaulding let him in again, and she pressed Knapp to get her high. Eventually, Ms. Spaulding offered sex for drugs. At that point, Knapp “gave in” and they had sex. Afterward, Knapp could not find the methamphetamine to give to her. Ms. Spaulding became upset and threatened to call the police and falsely accuse him of rape. Knapp left and was later arrested. The State charged Knapp with rape in the second degree by forcible compulsion.

THE TRIAL

At trial, Knapp requested a jury instruction that told the jury the State had the burden of proving an absence of consent beyond a reasonable doubt. The State opposed this instruction, arguing it was not a correct statement of the law. The State instead proposed Washington pattern jury instruction 18.25, which reads, “Evidence of consent may be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse.”

The trial court declined to give Knapp’s proposed instruction and instead gave the State’s. The jury found Knapp guilty of second degree rape. The trial court sentenced Knapp to a midrange sentence—110 months to life.

Knapp appealed on the issue of whether the jury was properly instructed on the issue of consent.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that at trial, each party is entitled to have the jury instructed on its theory of the case when there is sufficient evidence to support that theory.

“Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law,” said the Court. “Read as a whole, the jury instructions must make the legal standard apparent to the average juror.”

Here, both parties relied heavily on State v. W.R., a case which apparently offers confusing interpretations of which party in a criminal sex case has the burden of proving consent.

The Court acknowledged that Knapp argued that W.R. stands for the proposition that the burden to prove consent has now shifted to the State, and the State must prove a lack of consent beyond a reasonable doubt. Knapp’s proposed jury instruction read: “Consent means that at the time of the act of sexual intercourse there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The Defendant has no burden to prove that sexual intercourse was consensual. It is the State’s burden to prove the absence of consent beyond a reasonable doubt.”

However, the Court of Appeals disagreed with Knapp:

“The court in W.R. focused on whether the burden to prove consent was correctly placed on the defendant. It did not hold that the State must prove the absence of consent.”

The Court ruled that the trial court did not commit legal error when it denied Knapp’s proposed instruction. “Knapp’s proposed instruction was an incorrect statement of the law,” it said. “W.R. did not hold that the burden to prove an absence of consent shifted to the State. Instead, it held that the burden to prove consent cannot be placed on the defendant.”

Furthermore, when read as a whole, the trial court’s instructions allowed Knapp to argue his theory of the case. “Knapp claimed the sexual intercourse was consensual,” said the Court of Appeals. “The court’s instructions on the elements of the offense and consent allowed Knapp to argue his theory of the case—that Ms. Spaulding consented to sexual intercourse and the State failed to prove forcible compulsion beyond a reasonable doubt.”

With that, the Court of appeals affirmed Knapp’s conviction.

Please contact my office if you, a friend or family member face a sex offense. Consent is a viable defense, and evidence of consent may be considered by the jury. Therefore, it’s imperative to hire a defense attorney knowledgeable of the law surrounding these issues.