Category Archives: Jury Trial

A Trial Court’s COVID-19 Protocols Are “Trial Management Decisions.”

Bellingham Defense Attorney, Coronavirus, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Courts Making Juror Safety a Top Priority | United States Courts

In State v. Ferguson, the WA Court of Appeals held that imposing COVID-19 protocols are “trial management decisions.” The use of masks, a transparent partition between counsel and client, and some jurors being seated behind counsel table during trial to allow for social distancing did not violate the defendant’s rights at trial.

BACKGROUND FACTS

On April 16, 2019,  a man and his son went for a walk. When they returned home, they noticed a man inside the garage. They recognized the man as Mr. Ferguson. An altercation occurred. Afterward, Ferguson fled the scene by running through a nearby field to a neighbor’s home. The police responded and ultimately found Ferguson at the neighbor’s house. Ferguson was arrested.

Ferguson was initially charged with first degree burglary. His charges were later amended to also include felony harassment, third degree malicious mischief, second degree criminal trespass of the neighbor’s house, bail jumping, and witness tampering.

TRIAL COURT’S COVID-19 PROTOCOLS

Following delay and multiple continuances partly due to the COVID-19 pandemic, Ferguson’s case proceeded to trial. Ferguson’s jury trial was the first to take place in the county since the beginning of the COVID-19 pandemic. Accordingly, the trial court implemented a variety of COVID-19 protocols for the trial.

Some members of the jury were seated behind the counsel tables in the courtroom gallery. This was done in order to socially distance the jurors and the participants. And everyone in the court room was instructed to wear face masks. The trial court also instructed the jurors to raise their hands if they could not hear something during the trial.

Plexiglass partitions were also placed between participants, including between Ferguson and his counsel at their table. Throughout the trial, Ferguson and his counsel would lean or move back behind the partition to speak to each other and would pass notes to each other.

After all witnesses had testified, Ferguson’s counsel requested a mistrial based on the COVID-19 protocols. Specifically, counsel argued the plexiglass partition between counsel and Ferguson, coupled with the seating arrangement for the jurors, compromised their ability to have necessary attorney-client communications. Ferguson’s counsel contended that because they could not hear each other through the plexiglass partition, the jurors were possibly able to overhear private communications. The trial court denied the motion for a mistrial.

The jury found Ferguson guilty of first degree burglary, third degree malicious mischief, second degree criminal trespass, bail jumping on a class A felony, and tampering with a witness.

Ferguson appealled his conviction on numerous arguments challenging the COVID-19 protocols used for his trial. Ferguson argued that the plexiglass between him and his counsel forced them to lean back to communicate with each other and may have allowed the jurors to overhear them. Ferguson also argued that the masks required him and his counsel to speak louder than they typically would, potentially disclosing their confidential attorney-client communications to the jurors and the State. Finally, he argued the trial court abused its discretion when it denied his request for a mistrial due to these protocols.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that Ferguson’s trial was the first in the county since the beginning of the pandemic and the suspension of all jury trials. The trial court implemented these protocols to ensure that the trial could safely proceed, as it was required to do by our Supreme Court.

“Plexiglass partitions, mandatory masking, and social distancing that forced jurors to be located throughout the gallery were all modifications to the trial court’s typical courtroom arrangement and procedures that fall within the court’s discretion and were based on the Supreme Court’s multiple orders.” ~WA Court of Appeals

The Court of Appeals further reasoned that the impact on Ferguson’s rights, while not negligible, was not onerous. Although Ferguson and his counsel were not able to communicate as easily as they would have been without the COVID-19 protections in place, the video record of the trial shows that he and his counsel were able to lean back minimally to speak around the plexiglass partition and write notes to each other. And the record shows that Ferguson and his counsel communicated in those ways frequently. Ferguson claims that he spoke louder than normal because of the masks, but private communication with his counsel would have been more likely because of the same social distancing requirements about which Ferguson now complains.

“No reasonable juror would draw any inference personally against Ferguson because of the implementation of plexiglass partitions, masks, and social distancing. COVID-19 protocols are simply not comparable to other inherently prejudicial decisions, like requiring the defendant to wear prison clothes or restraints that could signal dangerousness. See Caver, 195 Wn. App. at 780-81. Because impermissible factors were not brought into play and the changes furthered essential state interests, the COVID-19 protocols satisfy the closer scrutiny required for inherently prejudicial trial management decisions.” ~WA Court of Appeals

With that, the Court of Appeals held that the COVID-19 protocols implemented in Ferguson’s trial were permissive trial management decisions. Also, the trial court did not abuse its discretion by denying Ferguson’s motion for a mistrial.

Fortunately, I’ve held numerous jury trials in the era of COVID-19. Unfortunately, it hasn’t gotten an easier. How do you question a prospective juror when the juror is wearing a mask? Watch the eyes. After all, that is about all you can see of the juror’s face.  Body language plays a role.  Jury questionnaires are enormously helpful, as are the use of electronic exhibits. And making sure everyone—you, the judge, and jury—can hear what is being said is always important. It takes patience and care.

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.

Jury Selection & Face Masks

Bellingham Defense Attorney, Coronavirus, Jury Selection, Jury Trial, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Can I Skip Jury Duty Because of Covid Fears? - The New York Times

In State v. Bell, the WA Court of Appeals held that it does not violate a defendant’s constitutional rights for jurors to wear face masks at jury selection.

FACTUAL BACKGROUND

Mr. Bell was charged with first degree assault and drive-by shooting for an attack on his coworker. During jury selection, the court denied Bell’s request that jurors wear clear face shields rather than non-transparent face masks covering their noses and mouths. At trial, Mr. Bell was found guilty as charged. He appealed on arguments that the judge’s decision to deny his request for face shields violated his right to select an impartial jury.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that starting at the beginning of the COVID-19 Pandemic, Washington courts adopted a variety of strategies to ensure that trial could continue safely. The Washington State Supreme Court, in an order issued June 18, 2020, required courts to conduct all jury trial proceedings consistent with the most protective applicable public health guidance in their jurisdiction. It also ordered courts to inform jurors of steps the court would take to combat spread of the virus, including “face masking.”

“Washington was not alone in taking these steps to ensure the safety of jurors, court staff, counsel, parties, and the general public during a global health emergency. Many other jurisdictions did the same. Some of those jurisdictions have seen challenges to their pandemic-induced jury selection procedures similar to the one Bell brings. Courts have uniformly rejected these challenges.” ~WA Court of Appeals.

Ultimately, the Court of Appeals concluded that the trial court did not abuse its discretion when it denied Bell’s motion. “It did not adopt procedures that no reasonable person could support,” it stated. “The trial court was responsive to Bell’s concerns throughout the selection process.” The Court of Appeals emphasized that Mr. Bell had the option to conduct voir dire online if he wished. This would have permitted access to the potential jurors’ faces, albeit at the cost of some of their body language. “He did not take advantage of this option, instead requesting that jurors wear face shields,”  stated the Court of Appeals.

“Here, the trial court’s decision to require potential jurors to wear face masks may have deprived Bell of some portion of his ability to assess their demeanor. But jurors’ discomfort at being forcibly unmasked in a crowded room around a group of strangers in the midst of a pandemic may have also affected their demeanor and impeded accurate determination of their mood and credibility. And their tone of voice, body language, eyes, and other aspects of their demeanor remained as accessible as they normally would have been.” ~WA Court of Appeals.

With that, the Court of Appeals held that the trial court did not abuse its discretion when, during a pandemic, it required jurors to wear face masks during jury selection.

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.

Self-Harming Juror Removed From Deliberations

Assault, Bellingham Defense Attorney, Burglary, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Why Do People Self-Harm? | Lifeskills South Florida

In State v. Norman, the WA Supreme Court held that it was proper for a trial judge to dismiss a frustrated juror who engaged in self-harm during deliberations. The juror’s punching himself in the face raised legitimate concerns about his ability to deliberate.

FACTUAL BACKGROUND

Mr. Norman was tried before a jury on first degree burglary and second degree assault. The jury began deliberating at lunchtime. After only a few hours of deliberation, the jury pounded on the door and told court staff they were breaking for the evening. Over half of the jurors left the room before the court clerk arrived. The clerk discovered that during deliberations, juror 9 became overwhelmed and punched himself in the face. After several jurors expressed concern, the trial court questioned juror 9, who answered as follows:

“So yesterday, discussions became very heated, and . . . there were a number of people who had disagreements with me. This caused raising of voices, and I became . . . somewhat overwhelmed. I felt somewhat like—a little bit attacked, and I reacted with an emotional outburst of punching myself in the face. That has happened in the past when I get into high-stress situations. I have self-harmed in the past, but it hasn’t happened in a number of years. That being said, I still consider myself of sound mind and ability to continue going forward with this case.” ~Juror 9

The trial judge spoke to two other juros. They expressed concern over whether they could reach a verdict with juror 9. For example, juror 2 said she felt intimidated by juror 9’s actions. And according to juror 8, juror 9 was “in control of himself” for “80 percent of the day,.” Unfortunately, in the remaining time he “punched himself in the face a couple times and grabbed his hair” in reaction to contentious discussions.

The trial judge dismissed juror 9 for cause.

The reconstituted jury found Norman guilty of one of two counts. The Court of Appeals reversed Norman’s conviction, holding juror 9’s dismissal was improper under the heightened evidentiary standard set forth in State v. Elmore. On appeal, the WA Supreme Court decided the specific issue of whether the trial court abuse its discretion in dismissing juror 9.

COURT’S ANALYSIS & CONCLUSIONS

Justice Owens wrote the majority opinion. She began by saying trial judges have a continuous obligation to excuse a juror who has manifested unfitness. This can happen if a juror manifests bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service. This obligation implicates a defendant’s right to trial by an impartial jury and their right to a unanimous jury verdict.

Next, Justice Owens addressed how the Court of Appeals (COA) reversed Norman’s conviction.  In short, the COA held juror 9’s dismissal was improper under the evidentiary standard set forth in State v. Elmore. Justice Owens had some choice words:

“But the Elmore standard applies only where a juror is accused of nullification, refusing to follow the law, or refusing to deliberate. As there was no such accusation here, and the trial court found juror 9’s conduct likely affected the jury’s process of deliberating freely, it did not abuse its discretion in dismissing juror 9.” ~Justice Owens, WA Supreme Court

Consequently, the WA Supreme Court held that the trial court did not abuse its discretion in removing juror 9. His conduct could have impacted the jury’s ability to reach a unanimous verdict. The heightened evidentiary standard does not apply to juror 9’s dismissal because he was not accused of nullification, refusing to deliberate, or refusing to follow the law. With that, the WA Supreme Court reversed the Court of Appeals, and affirmed Norman’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.

GR 37 Challenges to Striking a Potential Juror

Bellingham Defense Attorney, DUI, GR 37, Jury Trial, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Why Is It So Easy for Prosecutors to Strike Black Jurors? | The New Yorker

In State v. Booth, the WA Court of Appeals held that a trial court’s decision to deny a defendant’s peremptory challenge was not reversible error. Booth captured an interesting scenario where the State – and not the defendant – made a race-based challenge to the opposition’s reasons for striking a potential juror.

BACKGROUND FACTS

On August 9, 2017, Ms. Booth went to a Metallica concert in Seattle with her cousin. After the concert ended around 11:00 p.m., Booth and her cousin went to his hotel room to talk and catch up. While they were talking, Booth’s cousin—a “very big guy”— began to say things that made Booth uncomfortable. He tried to kiss her. That caused Booth to panic and flee to her car, feeling like she “just had to get out of there.” She began driving without knowing where she was going. According to Booth, she drank a single glass of wine at the concert and had another serving of wine at her cousin’s hotel.

Around 3:30 a.m., Washington State Patrol Trooper saw a car remain stopped at a traffic light the entire time the light was green. When the car drove, it was drifting over lane lines and failed to stop even after he turned on his patrol car’s emergency lights. After the car stopped and the driver rolled down her window, Trooper Roberts smelled a very strong odor of alcoholic beverages coming from within the car. Booth was driving. Her eyes were bloodshot and watery, and she had a glazed stare on her face. She struggled to answer Trooper Roberts’ questions, seeming very forgetful.

Trooper Roberts arrested Booth on suspicion of DUI. Booth did not consent to sobriety tests. Her blood-alcohol content was never measured. Trooper Roberts decided against getting a warrant for a blood draw because he thought she was  obviously intoxicated.

The case moved on to trial. Booth’s defense theory was that her appearance and behavior resulted from memories of past sexual trauma being triggered by her cousin’s unwanted physical advance. Booth sought to testify about the details of the assaults that traumatized her. The court limited Booth’s testimony about her past to stating she had a history of victimization, and it allowed testimony about her mental state after her cousin’s unwanted advance.

VOIR DIRE

During voir dire – jury selection – Ms. Booth tried to exercise a peremptory challenge to a prospective juror who is a member of a cognizable racial minority. However, the State made a General Rule (GR) 37 objection, arguing race “could” have been a factor underlying the peremptory challenge. The trial court agreed. It denied Ms. Booth’s peremptory challenge and concluded GR 37 prohibited the striking of the juror.

The jury found Booth guilty both of DUI and of refusing to submit to a breath test. Booth appealed on arguments that the trial court mistakenly refused to grant her peremptory challenge.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals reasoned that peremptory challenges are not required by the federal or state constitutions. The error here does not fit within the narrow class of per se reversible errors. Also, there was no showing of any prejudice from the erroneous seating of an otherwise competent, unbiased juror. Therefore, a reversal of Booth’s conviction and a retrial of her case was not required.

The court reasoned that in order to bring a GR 37 challenge, the party alleging the violation must establish a prima facie case demonstrating that the struck juror is from cognizable racial group. The burden than shifts to the non-moving party to provide a race-neutral justification. The court than determines whether “an objective observer could view race or ethnicity as a factor in the use of the peremptory strike.” A court evaluates the reason for the peremptory under the totality of the circumstances.

The court also reasoned that in this case, defense made a motion to strike a juror, the State objected under GR 37 and the trial judge denied the peremptory strike.

Under these circumstances, the Court held that an objective observer could not find race as the basis for the motion to strike. When a juror is wrongly impaneled, it implicates the constitutional rights of the defendant. However, erroneous denial of peremptory is not a per se reversible error, as it merely results in the improper seating of a competent and unbiased juror.

“Booth does not explain how juror 6’s presence on the jury made a difference. She does not argue juror 6 could have been challenged for cause, and, in fact, the trial court explained it would not have sustained a for-cause challenge to juror 6, given his answers. And, assuming the jury found Trooper Roberts credible, his testimony provided overwhelming evidence of Booth’s guilt. Thus, Booth fails to show prejudice because the record does not suggest juror 6’s absence would have changed the outcome.” ~WA Court of Appeals.

My opinion? Interesting decision. You don’t often see the State challenging a defendant’s peremptory challenges on the basis of race. You typically see the reverse: the defendant challenging the State’s peremptory challenge as race-based.

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.

Don’t Talk to Jurors!

Bellingham Defense Attorney, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Jury deliberations begin in 2018 gang slaying at Yakima County jail | Local | yakimaherald.com

In State v. Hall, the WA Court of Appeals held that improper communication between the jury and court bailiff impacts the right to a fair and impartial jury. Don’t talk to jurors.

BACKGROUND FACTS

The State charged Hall with sex offenses. A jury trial in Snohomish County Superior Court began on October 15, 2019. The case was submitted to the jury on October 23, 2019. On the eighth day of deliberations, November 1st, the bailiff received a question from the jury. The bailiff described the event as follows:

“So I received the juror question asking me if Juror 4 could be dismissed. The juror stated that she was not ill but just wanted to leave, and they asked if they could call in the alternate. I told them that if they did that, they’d have to start over and that generally that’s not what the alternate is for, but they told me to ask it anyway.” – Court Bailiff

After this exchange, the judge, prosecutor and defense counsel engaged a heated debate on the propriety of the bailiff’s remarks.

At some point, defense counsel moved for a mistrial based on juror misconduct over the exchange with the bailiff. Defense Counsel also took issue with the juror’s potential discussion of the case outside of deliberations. Rather than decide on the motion, the court proposed polling the jury. Later, within 10 minutes of the jury returning to deliberations, the trial court received notice that juror 4 wanted to be excused. Defense counsel again expressed her concerns that juror 4 may be hastened or coerced. The court declined to dismiss juror 4 and instructed them to continue deliberating with the other jurors.

Fourteen minutes later, the jury returned a verdict finding Hall guilty of two sex offenses. Following the verdict, Hall moved for a new trial. He argued that the bailiff’s communications to the jury had a prejudicial impact on his trial.

COURT’S ANALYSIS & CONCLUSIONS

The court began by stating that RCW 4.44.300 forbids a bailiff from communicating with the jury during its deliberations, except to inquire if they have reached a verdict.

“The statute was designed to insulate the jury from out-of-court communications that may prejudice their verdict,” said the Court of Appeals. It emphasized that the bailiff is in a sense the “alter-ego” of the judge. Therefore, improper communication between the court and the jury is an error that impacts the right to a fair and impartial jury.

“It is at least possible that the bailiff’s comments resulted in juror 4 being pressured to reach a verdict,” said the Court of Appeals. Relying on State v. Christensen, and examining the record as a whole, the Court reasoned that the bailiff’s remarks had a prejudicial effect on the jury. With that, the Court reversed the convictions and remanded for a new trial.

My opinion? Good decision. I’m sure the bailiff was simply trying to be helpful. Nevertheless, the road to Hell is paved with good intentions. I echo the excellent advice from the Washington Courts given to potential jurors: DON’T talk to anyone about your deliberations or about the verdict until the judge discharges the jury. After discharge, you may discuss the verdict and the deliberations with anyone, including the media, the lawyers, or your family. But DON’T feel obligated to do so.

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.

Jury Questions

Bellingham Defense Attorney, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Should Jurors Be Allowed to Ask Questions During a Criminal Trial? – GRAND JURY TARGET

In State v. Sutton, the WA Court of Appeals held that, when answering a deliberating jury’s questions, a trial court has a responsibility to ensure that the jury understands the law.

BACKGROUND FACTS

Law enforcement executed a search warrant looking for evidence of drug trafficking at an address on in Newman Lake, Washington. At the property, they found the defendant Ms. Sutton and numerous co-defendants. The ensuing investigation led to Sutton and the co-defendants being arrested for the Kidnapping and Murder.

The State charged Sutton with first degree felony murder predicated on kidnapping, first degree kidnapping, and Leading Organized Crime. With respect to the charge of Leading Organized Crime, the State alleged that Sutton did intentionally organize, manage, and direct three or more persons  with the intent to engage in a pattern of criminal profiteering activity, to-wit: Delivery of a Controlled Substance.

Sutton testified in her defense. She admitted she sold drugs, but denied she sold drugs or directed the co-defendants to commit any crimes.

During deliberations, the jury forwarded a written question to the judge.  “For instruction #25, must the defendant have organized (etc.) all three of the listed persons specifically, or just any 3 or more persons (as instruction #24 states)?”

The judge asked counsel for suggestions on how it should respond to the jury’s question. Both the Prosecutor and Defense Counsel agreed the answer was, “Yes.” Ultimately, the trial judge decided that the best answer was to simply direct the jury to refer back to its instructions. Soon after, the jury returned guilty verdicts.

Sutton appealed her conviction on arguments that the trial court abused its discretion by declining the proposed defense jury instruction that accurately stated the law.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Defendants are guaranteed a fair trial under the Sixth Amendment to the United States Constitution, which requires jury instructions that accurately inform the jury of the relevant law. Furthermore, CrR 6.15(f)(1) permits trial judges to give the jury supplemental written instructions on any point of law after deliberations begin. This is done to ensure a jury is informed of the relevant law.

“A trial court should ensure that the jury understands the law . . . When it is apparent the jury does not understand the law, the trial court may and should issue a supplemental written instruction. A failure to do so is inconsistent with its responsibility to ensure the jury understands the law and risks the jury rendering a verdict contrary to the evidence.” ~WA Court of Appeals

Next, the Court of Appeals addressed whether the trial court should have given a supplemental instruction to clarify the law. It raised and dismissed Mrs. Sutton’s arguments that under State v. Backemeyer, a trial court should ensure that the jury understands the law. “Backemeyer is distinguishable from this case,” said the Court of Appeals. “There, it was clear that the jury misunderstood the law. Here, the to-convict instruction was clear.”

The Court further reasoned that the jury’s question did not create an inference that the entire jury was confused or that any confusion was not clarified.

“At a minimum, the jury’s question showed that some jurors wanted assurance they need not be concerned about the different wording in instruction 24. And because the trial court has a responsibility to ensure that the jury understands the law, it should have answered the jury’s question. It could have answered: ‘To convict Sutton of leading organized crime, the State must prove the elements of that crime as set forth in Instruction 25 beyond a reasonable doubt.’ Nevertheless, the trial court’s decision not to answer the jury’s question was not an abuse of discretion.” ~ WA Court of Appeals.

With that, the Court of Appeals upheld Sutton’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.

COVID-19 Impact on Trials

Bellingham Defense Attorney, Coronavirus, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

Coronavirus: California suspends jury trials in superior courts for 60 days – Orange County Register

Excellent article in Time magazine by reporter Melissa Chan discusses the Coronavirus Pandemic’s impact on our criminal justice system.

Since COVID-19 was declared a national emergency in March 2020, every state and Washington, D.C., has canceled or scaled back in-person criminal court proceedings to stem the spread of the virus. The snarled justice system has left hundreds of thousands of families waiting for trials and other resolutions, while creating a cascade of civil rights issues for the accused.

According to Chan, more defendants – especially those with health problems – are striking plea deals to avoid sitting in jail for an undetermined amount of time, defense attorneys say. And virtual courts are exposing the disadvantages of the poor, who are less likely to afford Internet access for court dates, as a staggering number of new criminal cases stack up.

The first few courts in the U.S. to stop jury selection and postpone new criminal and civil trials did so around March 2020. At that time, health officials began urging millions of Americans to stay at home and keep 6 ft. away from others when venturing out. Even the U.S. Supreme Court postponed oral arguments for the first time in more than 100 years.

By fall 2020, some criminal jury trials had resumed with restrictions, including in areas of New York State, where each county was allowed to hold one criminal trial at a time in courtrooms outfitted with plexiglass barriers and jury seats spaced several feet apart.

But the reopening was short-lived, reports Chan. A surge in COVID-19 cases around the holidays forced another round of court restrictions. At the end of November, about two dozen U.S. district courts nationwide resuspended jury trials and grand jury proceedings, marking a “significant pause” in efforts by federal courts to resume full operation, court officials said.

Today, even in jurisdictions where in-person proceedings have resumed, limits on how many people can be in a courtroom at the same time for things like jury selection continue to slow the system.

In a pre-pandemic world, state courts typically resolved 18 million felony and misdemeanor cases annually, according to an NCSC study in August 2020, and an estimated 8 million to 10 million U.S. citizens reported for jury duty each year.

“We’re in sort of this holding period.” ~Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts (NCSC).

Apparently, jury trials returning to any semblance of normality until at least 2022.

My opinion? The courts are doing their best to open again, albeit safely. Nobody wants a jury trial to become a super-spreader.

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.

A Return to Jury Trials

Bellingham Defense Attorney, Coronavirus, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

What Jury Service During the Coronavirus Pandemic Looks Like - The New York Times

Whatcom County Superior Court will resume 12-person jury trials starting March 15, according to a Wednesday afternoon press release from Whatcom County Superior Court Judge Rob Olson.

Several Whatcom County courts, including the Superior Court, used emergency administrative orders to suspend jury trials in mid-March 2020 due to the COVID-19 pandemic.

Judge Robert Olson’s March 3 news release said “extensive new” safety precautions have been put in place to protect the safety of jurors and the public in order for trials to resume.

“The suspension of jury trials was needed to protect the public and court staff, and it gave us the opportunity to redesign our jury processes with the input of public health experts, trial participants, and other stakeholders . . . Now it is critical that we re-start jury trials, which are key to the fair administration of justice.” ~Whatcom County Superior Court Judge Robert Olson.

Prospective jurors will have their temperature checked and be screened for health problems on arrival. Safe distancing will be maintained during the selection process and no food, drink or reading materials will be provided for safety.

Just one trial will be conducted at a time using both large courtrooms to allow for safe distancing, and all trial participants will have to wear masks.

Anyone showing symptoms of COVID-19 or other health problems will be excused from jury duty.

My opinion? Excellent news. Conducting jury trials during the Coronavirus Pandemic has posed significant practical and legal challenges for courts. Hopefully, our courtroom safeguards will help chart a trustworthy path to safely resuming jury trials soon.

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.

Prosecutor’s “War On Drugs” Comments Deprived Defendant of a Fair Trial

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jury Trial, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Is It Time To End The War on Drugs? Senator Cory Booker Thinks So. - DailyClout

In State v. Loughbom, the WA Supreme Court held that the Prosecutor’s comments during trial advocating the “War on Drugs” amounted to Prosecutor Misconduct and deprived the defendant of a fair trial.

FACTUAL BACKGROUND

In May 2017, Mr. Loughbom was charged with three counts of various drug crimes. In October of 2017, Loughbom’s case proceeded to jury trial.  During trial, the prosecutor referenced the “War on Drugs” three times:

1. During his opening statement, the prosecutor said, “The case before you today represents yet another battle in the ongoing war on drugs throughout our state and throughout our nation as a whole. I’ve been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of Delivery and Conspiracy to Deliver a Controlled Substance.”

2. The prosecutor began his closing argument by stating, “The case before you represented another battle in the ongoing war on drugs throughout our state and the nation as a whole. I have been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of delivery of controlled substances . . . and conspiracy to deliver a controlled substance.”

3. During the State’s rebuttal argument, the prosecutor stated that “law enforcement cannot simply pick and choose their Confidential Informants to be the golden children of our society to go through and try and complete these transactions as they go forward in the, like I said, the ongoing war on drugs in this community and across the nation.”

Although the jury found Mr. Loughbom not guilty of one drug charge, he was found guilty of delivery of methamphetamine and conspiracy to deliver a controlled substance other than marijuana. The trial court sentenced Loughbom to 40 months in prison and 12 months of community custody.

Loughbom appealed on arguments that the prosecutor’s repeated comments about the war on drugs constituted flagrant and ill intentioned misconduct.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court began by saying We presume prosecutors act impartially “in the interest of justice.” At the same time, we expect prosecutors to “‘subdue courtroom zeal,’ not to add to it, in order to ensure the defendant receives a fair trial.” State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015) (quoting Thorgerson, 172 Wn.2d at 443). Justice can be secured only when a conviction is based on specific evidence in an individual case and not on rhetoric. We do not convict to make an example of the accused, we do not convict by appeal to a popular cause, and we do not convict by tying a prosecution to a global campaign against illegal drugs.

“We agree with Loughbom and hold that the prosecutor’s remarks about the war on drugs were improper and rise to the level of being flagrant and ill intentioned. The prosecutor’s repeated invocation of the war on drugs was a thematic narrative designed to appeal to a broader social cause that ultimately deprived Loughbom of a fair trial.” ~WA SUpreme Court

The Court also reasoned that the prosecutor’s repeated references to the war on drugs were erroneous, and that framing Loughbom’s prosecution as representative of the war on drugs violated his right to a fair trial.

With that, the WA Supreme Court reversed the Court of Appeals and remand for a new trial.

My opinion? Excellent decision. Clearly, the prosecutor’s repeated appeals to the war on drugs caused incurable prejudice. It is deeply troubling that the State employed the war on drugs as the theme of Loughbom’s prosecution and reinforced this narrative throughout his trial.

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

Victim’s Motive To Testify

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, Evidence, felony, Immigration, Jury Trial, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Ulterior Motive

In State v. Bedada, the WA Court of Appeals held that in a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial judge mistakenly suppressed evidence of the victim’s motive to testify.

BACKGROUND FACTS

After a series of alleged incidents of domestic violence, Mr. Bedada was charged with three counts of assault in the first degree and one count each of felony harassment, witness intimidation, and witness tampering.

All of these charges were primarily supported by the testimony of Mrs. Haile, who was the defendant’s wife.

At trial, the judge excluded evidence of Mr. Bedada’s non-citizen immigration status; and more specifically, that he would be deported if convicted of the crimes. As a result, Mr. Bedada was prevented from cross-examining Haile and revealing a motive for her to fabricate her testimony.

Bedada was convicted on all charges except two counts of assault in the first degree. He appeals on the argument that the judge’s decision to suppress his citizenship status was erroneous and without merit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals explained that the Sixth Amendment to the United States Constitution and article I, section 22 of Washington’s constitution guarantee a defendant’s rights to confront the witnesses testifying against him.

Furthermore, the Court of Appeals said that under Evidence Rule (ER) 401, evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Also, under ER 403,  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Finally, the court explained that under ER 413(a), evidence of immigration status may only be admitted when the party seeking to admit the evidence follows the procedure set forth under the rule. ER 413(a) states,

“In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607.” (emphasis supplied).

The court analyzed the aforementioned rules and ultimately found that plainly, evidence of a motive to fabricate on the part of Mrs. Haile— whose testimony was the principal evidence supporting every charge against Bedada — could affect a fact finder’s analysis as to whether the facts alleged by Haile were true.

“No party disputed the reliability of evidence of Bedada’s noncitizenship,” said the court. “To the extent that the trial court engaged in a balancing of the probative value and prejudicial effect of the proffered evidence, it unfortunately omitted or misapplied several critical factors necessary to a proper analysis.”

Notably, the Court of Appeals also took issue that neither the Prosecutor nor the trial judge identified any prejudicial effect — specific to this case — that might result from the introduction of evidence of Bedada’s immigration status:

“The State’s assertion did not identify, with any particularity, the prejudice that the State would encounter beyond a generalized concern of immigration as a sensitive political issue. The lack of a specific, as opposed to merely a general, prejudicial effect is significant.”

Finally, the Court found it important that Mrs. Haile was the primary witness against Bedada in every charge against him.

“She was the State’s most important witness,” said the Court. “Demonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.

For all of these reasons, the Court of Appeals ruled that the trial court’s decision to exclude evidence of Mr. Bedada’s immigration status constituted an abuse of discretion. Consequently, the Court reversed Mr. Bedada’s convictions.

My opinion? Good decision. Although I sympathize with the victim’s plight, it is wrong for trial courts to suppress evidence of a victim’s ulterior motives for testifying. it is powerful, relevant and probative evidence establishing motive that the victim knew that the defendant would be deported if she testified against him. Defense counsel did a great job establishing a record for appeal.

Please contact my office if you, a friend or family member are non-citizens charged with crimes, especially deportable offenses like Domestic Violence. Hiring an effective and experienced criminal defense attorney is the best step toward justice.