Category Archives: Legislation

State v. Hall: WA Supremes Determine The “Unit of Prosecution” For Multiple Charges of Witness Tampering.

Assault, Burglary, Constitutional Rights, Due Process, felony, Legislation, Unit of Prosecution, Violent Crime, Washington Supreme Court, , ,

Freehold NJ Witness Tampering Lawyer | Asbury Park NJ Witness Tampering Charge Attorney

In State v. Hall, the WA Supreme Court decided that an incarcerated defendant’s numerous phone calls to a witness constituted only one charge of Witness Tampering.

Defendant Mr. Hall threatened his girlfriend and her lover with a gun after finding them together in her apartment.  He flees the scene and drives away in a car owned by his friend, Desirae Aquiningoc.  Police later confront Aquiningoc about lending her car to Hall.  She said that Hall was her boyfriend, that he lived with her, that he had borrowed her car on that January 14 to visit his mother.  Later, police find Hall at his home and arrest him.

Based on what happened at Salazar’s apartment, Hall was charged with Burglary First Degree Burglary and Assault Second Degree and held in jail pending trial.  While in jail, Hall attempted to call Aquiningoc over 1,200 times. During those phone calls, some of which were played for the jury, Hall attempted to persuade Aquiningoc that his legal woes were her fault and that she had a moral obligation not to testify or to testify falsely.

The phone calls were recorded.  The State charged Hall with four counts of Witness Tampering.  Hall goes to trial.  The trial judge treated each count of Witness Tampering as a separate unit of prosecution.  Hall appeals.  The case winds its way to the WA Supreme Court.

The legal issue was whether Witness Tampering is a continuing offense or whether it is committed anew with each single act of attempting to persuade a potential witness not to testify or to testify falsely.

The WA Supremes reasoned that a “unit of prosecution” can be either a single act or a course of conduct.  Here, the plain language of the statute supports the conclusion that the unit of prosecution is the ongoing attempt to persuade a witness not to testify in a proceeding.  They further reasoned that, in the alternative, each conversation is a separate crime and, in this case for example, could lead to as many as 1,200 separate crimes.

“Such an interpretation could lead to absurd results, which we are bound to avoid when we can do so without doing violence to the words of the statute,” said the Court.  “It seems unlikely the legislature intended that a person could be prosecuted for over a thousand crimes under the circumstances presented here.”  Consequently, the Court held, under the facts of this case, Hall committed one crime of Witness Tampering, not three.

My opinion?  Makes sense.  It DOES seem absurd to stack multiple charges in this case.  After all, a unit of prosecution can either be a single act or a course of conduct.  It seems more realistic to view Halls many calls as a continuing course of conduct.  You can’t label the calls as single acts because he didn’t change his plans, motive, or modus operandi.

Good decision.

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.

Proposed Law Changes To Prevent Future Police Murders

Accomplice, Constitutional Rights, felony, Firearm, Homicide & Manslaughter, law enforcement, Legislation, police, Violent Crime, Washington State Patrol, , ,

2009 Lakewood shooting - Wikipedia

In the wake of the Lakewood police officer shooting tragedy, Representative Mike Hope (R-Lake Stevens) is drafting legislation to prevent serial offenders like Maurice Clemmons from having an opportunity to harm others. Hope, a Seattle police officer who works patrol when not in session, said this was at the top of his legislative agenda.

The three-part legislation will include two proposed changes to the Washington State Constitution and a sentencing enhancement, proposals he says would have prevented the murders of four Lakewood police officers Nov. 29.

The first bill would remove bail opportunities for dangerous individuals who have committed two felonies and are charged with a possible “third strike” felony offense.   The second bill would prevent defendants from receiving bail if they commit another violent crime in Washington and are proven dangerous to the public.  The third bill would require a sentencing enhancement against those who aid and abet criminals who are not bailable.

A change to the state constitution requires a two-thirds approval in both the House and the Senate and simple majority approval from voters.

My opinion?  Like everyone, I’m deeply saddened with the deaths of the four Lakewood Officers.  Their murders were completely meaningless and senseless.  I’m also disturbed the defendant’s friends/relatives assisted him.

That said, I question whether altering the WA Constitution and chipping away at a defendant’s rights is the answer to preventing similar murders from happening in the future.  I’m a staunch defender of constitutional rights.  Indeed, if I were to wrap an American flag around myself and proclaim my patriotism out loud, then THAT is the platform I stand upon: vigilant, aggressive protection of individual rights against a tyrannical government.

The proposed legislation is strong medicine.  Too strong.  At worst, defendants can be held without bail.  This is disturbing.  Under court rules, judges may hold defendants without bail only if the charge they face is a capital charge; like murder.  Additionally, judges must impose the least restrictive release alternatives to defendants.

Disallowing bail and indefinitely holding defendants in jail laughs in the face of “least restrictive alternative.” Finally, holding defendants without bail leads to “plea tenderization” by cutting defendants off from work and family.  As a result, defendants may plead guilty not because they committed a crime; but simply to get out of jail and move on with their lives.  That’s an utterly inhumane result if the defendant is innocent of the charges.

We’ll see what happens.  The bill needs extremely strong support.

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. Stately: Vehicular Homicide By Disregard Is NOT A Violent Offense; Some Defendants Eligible for First Offender Waiver.

Due Process, DUI, felony, First Time Offender Waiver, Homicide & Manslaughter, Legislation, Sentencing, Violent Crime, Washington Court of Appeals, , ,

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In State v. Stately, the WA Court of Appeals held that Vehicular Homicide By Disregard is NOT a Violent Offense and that some defendants are eligible for the First-Time Offender Waiver.

About a week before her 18th birthday, Ms. Stately drove a car while intoxicated.  Unfortunately, she caused an accident that killed her best friend.  Stately was charged — and later convicted — of Vehicular Homicide by Disregard under RCW 46.61.520(1)(c).  At sentencing, the State recommended 17 months of incarceration.  However, Stately argued she was entitled to a first-time offender waiver under former RCW 9.94A.650 because her crime was not defined as a violent offense.

The trial court agreed.  Stately was sentenced under the first-time offender waiver to 30 days of incarceration, 12 months of community custody, and 4,000 hours of community restitution (community service).

For those who don’t know, a “first-time offender” is any person who has no prior felony convictions.  At sentencing, the court may waive the imposition of a sentence within the standard sentencing range.  The sentence imposed under the first-time offender provision is not an exceptional sentence but is, rather, a waiver of the standard sentence range.

On appeal, the Prosecution argued that Stately was not eligible for a first-time offender waiver because she committed a violent offense.

However, the Court of Appeals thought different.  It reasoned that there are three types of vehicular homicide, all currently class A felonies.  Subsection (xiv) lists the first two types, homicide by intoxication and recklessness, but does not include the third type, homicide by disregard.  Former RCW 9.94A.030(50)(a)(xiv).

The court further reasoned, “If we read the statute to define Vehicular Homicide by Disregard as a violent offense simply because it is a class A felony, then subsection (xiv) would be superfluous.  We presume, however, that the legislature does not include superfluous language and we interpret statutes to give meaning to each section.

Here, it is impossible to harmonize the statute’s terms in subsection (i) with its terms in subsection (xiv).  The later subsection, relating specifically to vehicular homicide, is more specific than subsection (i), which relates generally to all class A felonies.  Applying the specific-general doctrine, the specific terms of subsection (xiv) prevail and Stately’s Vehicular Homicide by Disregard conviction is not a violent offense”  (emphasis supplied).

My opinion?  Again, excellent decision.  It’s pleasing when our legal system takes an academic approach to cases by methodically reviewing the WORDING and LEGISLATIVE INTENT of statutes.  Fortunately, that’s exactly what happened here.  The court avoided a huge miscarriage of justice by refusing to allow the general rule of “violent offense” swallow legislative exceptions to the rule.

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.

US Supremes Rule Convicted Defendants Have No Right To Test DNA

Assault, Constitutional Rights, DNA, Due Process, felony, Forensics, Legislation, Race & Law, Rape, Sex Crimes, Uncategorized, United States Supreme Court, , ,

How Reliable Is DNA Evidence? | The Marshall Defense Firm

In Yeager v. United States, the U.S. Supreme Court ruled that convicts have no constitutional right to test DNA evidence in hopes of proving their innocence long after they were found guilty of a crime.

The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence. Testing so far has led to the exoneration of 240 people who had been found guilty of murder, rape and other violent crimes, according to the Innocence Project.

The court ruled 5-4, with its conservative justices in the majority, against an Alaska man who was convicted in a brutal attack on a prostitute 16 years ago.

William Osborne won a federal appeals court ruling granting him access to a blue condom that was used during the attack. Osborne argued that testing its contents would firmly establish his innocence or guilt.

In parole proceedings, however, Osborne has admitted his guilt in a separate bid for release from prison.

The high court reversed the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco. States already are dealing with the challenges and opportunities presented by advances in genetic testing, Chief Justice John Roberts said in his majority opinion.

“To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” Roberts said. Alaska, Massachusetts and Oklahoma are the only states without DNA testing laws. In some other states, the laws limit testing to capital crimes or rule out after-the-fact tests for people who confess.

But Justice John Paul Stevens said in dissent that a simple test would settle the matter. “The court today blesses the state’s arbitrary denial of the evidence Osborne seeks,” Stevens said.

My opinion?  HORRIBLE DECISION.  Although the crime in question was heinous, there is no doubt that a small group of innocent people — and it is a small group — will languish in prison because they can’t get access to the evidence.  This directly violates a defendant’s 6th Amendment rights.  Unbelievable.

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.

Class Action Lawsuit Challenges “Camera Tickets”

Bellingham, Due Process, law enforcement, Legislation, Red Light Cameras, Terry Stop, Traffic Infractions, , ,
Rosen Law Firm in Seattle is currently researching a class action law suit against many Washington cities that operate red light and speed zone cameras in Washington.  If you have paid for a photo enforcement ticket in Washington, they may be interested in representing you and trying to get your money back.
Apparently, the firm is willing to do so at no cost to you unless they win, and then only a percentage of the amount they recover for you. If you are interested and meet the eligibility requirements of 1) having received a photo enforcement ticket; 2) in Washington; and 3) you paid the ticket, please contact the Rosen Law Firm:

My opinion?  I wish success upon this class action!  Red light camera tickets seem like an easy way for cities and counties to fill their coffers.  And it is working.  For example, the city of Balitmore shortened the yellow light on just one intersection and collected $1000’s in traffic light camera violation fines until one alert victim took them to court.   Additionally, I’ve heard complaints (hearsay, I know) that yellow lights times are SHORTENED if a camera is observing the intersection; and that the cameras actually don’t decrease people’s speed.

Good luck, RosenLaw Firm.  Give ’em Hell!   🙂

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.

Imprisoned Undocumented Immigrants May Soon Face Early Deportation

Bellingham Defense Attorney, Constitutional Rights, Immigration, Immigration & Customs Enforcement (ICE), Jail, Legislation, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

How the Deportation Machine Criminalizes Immigrants | The Nation

Hundreds of undocumented immigrants in Washington state prisons will be deported at the end of their sentences. But state officials want to deport many of them early — without serving prison sentences — to save money.

One option is the increased enforcement of a statute which allows for the early deportation of undocumented immigrants who’ve committed non–violent crimes.  Although this law has been on the books for years, it rarely is applied.  Generally, prosecutors do not agree to early deportations without jail because, in their view,  it greatly reduces the consequences for committing a crime.

Nevertheless, prosecutors may be warming up to these early deportations. The head of the Washington Association of Prosecuting Attorneys testified in support of the earlier legislation. Immigration advocates also favor the plan.  Finally, Governor Gregoire has called for a specific agreement between the Department of Corrections and federal immigration authorities which would facilitate such a plan.  It also requires approval from prosecutors and judges.

However, the statute carries a double-whammy: although deportees avoid jail time, they shall be charged with a federal felony if they return.  Additionally, they shall serve the maximum amount of jail which was suspended upon their deportation.  Government data show that illegal re–entry after deportation is the most prosecuted federal crime.  Arizona prisons use a similar deportation program, however, and the re–offender rate is about 2%.

As a side note, illegal immigrants are automatically deported if they commit crimes exposing them to 1+ jail sentence (gross misdemeanors and felonies).  In the case of nonviolent crimes and defendants with little or no history, some prosecutors will agree to a maximum exposure of 364 days instead of 365.  This solution altogether avoids the deportation of illegal immigrants whom the prosecutors deem worthy to stay in the U.S.

Typically, when it comes to the possible deportation of a defendant, prosecutors review the circumstances surrounding the crime, employment history, family ties, immigration status, etc.  These factors affect a prosecutor’s willingness to negotiate.

My opinion?  I support the legislation.  With some reservation.  My #1 concern is ensuring due process rights are not violated.  Defense attorneys MUST ensure the defendant/deportee knows they will serve a HUGE amount of jail — in a federal institution, no doubt — if they return to the U.S. after being deported early.

For that very reason, I believe we’ll see more undocumented defendants exercising their rights to jury trial.  After all, what do they have to lose when negotiations fail?  These defendant already face early deportation, coupled with the threat of prosecutors stacking federal charges if the deportee returns illegally.  Force the government to prove the charges!

Interesting times . . .

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.

Voting Rights Restored!

ACLU, Constitutional Rights, felony, Legislation, Race & Law, Voting Rights, , ,

Voter Information for WA State Residents Who Are or Have Been Incarcerated, Unhoused, Disabled, Need Language Assistance, and more | The Church Council of Greater Seattle

Thank you to all who took action on HB 1517!  This important measure will automatically restore the right to vote to citizens who were entangled with the criminal justice system.

Governor Chris Gregoire signed the bill into law on Monday, May 4, 2009.  The new law will reform Washington’s convoluted and unfair system for restoring voting rights.

Washington now becomes the 20th state in the last decade to ease voting restrictions for people with criminal histories who are living, working and raising families in the community.  Our victory is part of a nationwide movement to assure that our democracy reflects the voices of American citizens.

Let freedom ring.

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.

New Findings: Decline in Black Incarceration for Drug Offenses

Department of Corrections, Drug Offenses, Jail, Legislation, marijuana, Race & Law, Studies, , ,

INCARCERATION | BlackDemographics.com

For the first time in 25 years, since the inception of the “War on Drugs,” the number of African Americans incarcerated is state prisons for drug offenses has declined substantially.  According to a recent study released by The Sentencing Project, there exists a 21.6% drop in the number of blacks incarcerated for a drug offense.  This presents a decline of 31,000 people during the period 1999-2005.

Why the decrease?  The study shows that many states are softening their approach to crime by reconsidering overly punitive sentencing on defendants.  Diversionary programs are also being re-examined.  The changing approach is, not surprisingly, inspired by fiscal concerns.  Policymakers recognize that skyrocketing corrections costs cut into public support for higher education and other vital services.

Second, at the federal level, the U.S. Sentencing Commission has enacted changes in the sentencing guidelines for crack cocaine offenses, and members of Congress are considering proposals to reform the mandatory penalties for crack offenses.

My opinion?  Ironically, the economic recession has spurred positive changes in the criminal justice system.  Many lawmakers realize the foolishness behind incarcerating people for low-level drug offenses.  Also, I believe the “War on Drugs” has changed tactics.  Nowadays, police are more interested in busting defendants for methamphetamine (meth) than crack cocaine.  Meth is considered  a much larger risk to public safety and health.

Meth is also largely used/possessed by non-minorities.   This is partially because most meth labs are found in rural destinations; which have more Caucasians, and not so much in the inner city, where more minorities dwell.

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. Ramos: Excellent Separation of Powers Case

Constitutional Rights, Due Process, felony, Legislation, Sex Crimes, Washington Court of Appeals, , ,

Theory Of Separation Of Powers - Political Science

In State v. Ramos, the defendant was convicted in 1993 of sexual exploitation of a minor.  At the time, Washington did not require sex offenders to register with the State.   The law was changed after Ramos’ release and he registered in 2001.  The law changed again to require Level II sex offenders to report in person every 90 days.  Ramos failed to do so.  he was prosecuted for failing to report.

The WA Court of Appeals held that the authority to define crimes and set punishments rests squarely with the legislature.  Not the prosecutor, not the sheriffs, but the legislature.  It reasoned it is unconstitutional for the legislature to transfer its power to others.  Because the sex offender reclassification statute does not provide any guidance to local law enforcement agencies, Ramos’ delegation was improper, and his conviction cannot stand.

My opinion?  Great decision.  It reaffirms the debate regarding the wrongful  application of newly formed criminal laws.  In Washington, defendants can only be charged with violating laws in existence  at the time of arrest.  Unless a newly formed statute specifically provides for retroactive application, defendants cannot be found to have violated the new statute.  It isn’t fair.  Unconstitutional.  Again, great decision.

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.

Kitsap Jury Acquits Medical Marijuana Defendant

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, Legislation, marijuana, Privacy, Search Warrant, , ,

Pennsylvania MMJ Patients Face Choice: Cannabis or Guns? | Leafly

A medical marijuana patient being prosecuted in Kitsap County Superior Court for drug trafficking was found not guilty on Tuesday morning, after a jury ruled that his use of the drug was within the law.

The jury deliberated for approximately two hours prior to its ruling.

The prosecution alleged that the crop was being sold commercially, and that the Olsons were hiding behind medical marijuana laws as cover for a drug operation.

Defendant Bruce Olson decided to go to trial as the law had changed and he was advised that he had a better chance of acquittal.

The trial was attended by a floating group of medical marijuana activists, from patients to political activists. Several of them noted that it was rare for such cases to go to trial, as defendants usually enter a plea.

These activists filled the courtroom throughout the trial, with no visible support for the prosecution’s position.

Olson, who turns 55 on Wednesday, maintained a subdued manner throughout the trial, and barely talked when he was in the courtroom. This changed on Tuesday, when he was laughing and joking with his attorney prior to the verdict’s reading.

When it was announced Olson blurted “thank you, thank you you guys” to the jury, prompting Superior Court Judge Leila Mills to repeat her admonition to stay quiet until the jury was released.

“As a businessman I am really discouraged at all the money that was spent on this trial . . . It was a waste, and a lot of people who have seen the trial and are in business are wondering why I was prosecuted.” ~Defendant Bruce Olson

My opinion?  Great job, jury.  The government should not tamper in the affairs of defendants who are licensed to possess marijuana.  Period.   I welcome the day when marijuana will be legalized.  Let’s face it: the “War on Drugs” has failed.  Marijuana should not be demonized as a Gateway Drug.  Legalize it!