Category Archives: Prosecutorial Misconduct

Prosecution Must Prove Defendant Knowingly Violates a No-Contact Order

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No-Contact Order Violation | Law offices of Alexander Ransom

In State v. Morales Sanchez, the WA Court of Appeals reversed a defendant’s conviction of Felony Violation of a No-Contact Order. In short, the Court reasoned that for an act to constitute a willful violation of a court order restricting contact, the restrained party must know of the specific provision of the Order that her or his act violates.  Therefore, to prove the mens rea of a willful violation, the State must prove the defendant knew of the specific provision of the Order that his or her act violates. To argue otherwise misstates the law.

FACTUAL BACKGROUND

The alleged victim Ms. Mejia procured a no-contact order prohibiting Mr. Morales Sanchez from contacting her. The State charged Morales Sanchez with two counts of violation of a court order— domestic violence. The case went to a jury. Ms. Mejia testified at trial as to the alleged violations. According to her, she was home with her children when she heard knocking on her bedroom window. She saw Morales Sanchez outside under a tree and called the police. Ms.  Mejia also testified that, about a week later, she received text messages from the defendant.

In closing arguments, the State Deputy Prosecutng Attorney (DPA) made multiple comments as to the knowledge requirement of violation of a no-contact order. First, it told the jury, “This element does not say the Defendant knew of the provisions of this order and knowingly violated this order. The knowing part refers solely to the violation.” The DPA also said the following:

“And, again, I want to emphasize this, because out of everything I’m going to say, this is one of the most important things for you to remember. This element does not say [Morales Sanchez] knew of the provisions of this order and knowingly violated a provision of this order. What I have to prove to you is that [Morales Sanchez] knowingly violated a provision of this order. There is a big difference.” ~State DPA at Closing Argument

Additionally, the State DPA showed the jury PowerPoint slides consistent with this notion. Morales Sanchez was convicted by the jury as charged. He appealed on arguments that the DPA misstated the law by inaccurately explaining the “knowledge” element of the charge.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying the crime of willful violation of a court order has three essential elements: (1) the willful contact with another; (2) that a valid no-contact order prohibits such contact; and (3) defendant’s knowledge of the no-contact order.

“Willfulness requires a purposeful act,” stated the COA. Inadvertent or accidental contact is not enough. It reasoned that not only must the defendant know of the no-contact order; they must also have intended the contact. Proof that a person acted knowingly is proof that they acted willfully. Furthermore, a defendant cannot be prosecuted unless they know of the existence of the order.

Here, the COA held that the State DPA made an improper remark that merits reversal of the conviction. Here, the DPA explained the law as requiring that Morales Sanchez knew of the order and knew that and knowingly violated a provision of that order. The COA believed the DPA statement was inaccurate:

“We hold that this is a misstatement of the law because it fails to fully explain what a knowing violation includes and instead misleads the jury into thinking the State had to only prove Morales Sanchez knew generally of the existence of an order. Rather, the State is required to prove that Morales Sanchez knew what he was doing and that he knew his conduct was a violation of the order. This remark by the prosecutor fails to appreciate the distinction.”

Without properly explaining this distinction to the jury, the State was relieved of its burden of proof to establish Morales Sanchez’s knowledge of the no-contact order and Morales Sanchez’s knowledge that his willful contact with Rivera Mejia violated the no-contact order. This is a misstatement of the applicable law, and was therefore improper.” ~WA Court of Appeals

In addition, the DPA’s aruments blurs the State’s burden of proof. Here, the DPA failed to convey that the State must prove that Morales Sanchez must have known of the no-contact order, intended the contact, and knew that the contact was a violation of the order.

“We hold that the State committed prosecutorial misconduct because it misstated the elements it was required to prove and thereby relieved itself of the burden of proof before the jury. This had a substantial likelihood of affecting the jury’s verdict. Accordingly, reversal is required.” ~WA Court of Appeals

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.

High Court Withdraws Defendant’s Guilty Plea Due to Prosecutorial Misconduct

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Most judges believe the criminal justice system suffers from racism - The National Judicial College

In State v. Horntved, the WA Court of Appeals held the prosecutor’s threatening statements to an African-American defendant during plea negotiations rendered the defendant’s plea involuntary.

FACTUAL BACKGROUND

Mr. Horntvedt is an African-American. He faced multiple charges of sex trafficking, attempted sex trafficking, and promoting prostitution. The charges resulted from a multi-jurisdiction human trafficking investigation. The State intended to seek a 66-year sentence if the case went to trial. However, it offered Mr. Horntvedt a plea agreement specifying a 25-year sentence recommendation.

On March 26, 2021, a meeting occurred at the Franklin County Corrections Center to discuss terms of a plea offer. Attendees included Mr. Horntvedt, the deputy prosecutor, Mr. Horntvedt’s attorney, and two corrections deputies. With the exception of Mr. Horntvedt, every person in attendance was white. The meeting was recorded and later transcribed.

During the meeting, the prosecuting attorney advised Mr. Horntvedt that if he took his case to trial, his jury would “not necessarily be a jury of his peers.” Gesturing to herself and Mr. Horntvedt’s attorney, both of whom are white, the prosecuting attorney stated, “It’ll be a jury of our peers, be a lot of white folks.” The trial court observed that the prosecuting attorney’s comments were improper. However, it nevertheless denied Mr. Horntvedt’s motion to withdraw his plea, finding the plea was knowing, voluntary, and intelligent.

As Mr. Horntvedt was leaving the meeting, he told one of the corrections officers, “That’s some racist shit right there.”

GUILTY PLEA

Soon after, Mr. Horntvedt agreed to plead guilty in accordance with the State’s offer. At the April 27, 2021, hearing, the trial court explained the significance of a guilty plea and then asked Mr. Horntvedt if anyone threatened him to get him to plead guilty. Mr. Horntvedt replied, “No.” Defense counsel then interjected, “I will just make a brief record that Mr. Horntvedt] was concerned about a statement that was made out of court, but we discussed that and that’s not really a threat. It was just a statement of fact, and we’ll leave it at that for now.”

The court did not inquire into the out-of-court statement. The court accepted Mr. Horntvedt’s guilty plea and found it was “knowingly, intelligently, and voluntarily made; not the product of fear, coercion, or ignorance.” The court ordered the State to prepare a presentence investigation report and continued the case for sentencing.

MOTION TO WITHDRAW GUILTY PLEA

At the start of the June 2, 2021, Sentencing Hearing, defense counsel informed the court that Mr. Horntvedt’s grandmother wished to play a 60-second excerpt from the recorded remarks made by the prosecutor during the plea negotiation meeting.

The court asked a few questions about the nature of the recording. It then told defense counsel his client had a choice: “Your client either wants to adhere to the plea, or he wants to attempt to withdraw it.” Defense counsel conferred with Mr. Horntvedt, then informed the court that his client wanted to withdraw the plea. Defense counsel later filed a written motion to withdraw the guilty plea on behalf of Mr. Horntvedt. In an accompanying declaration, defense counsel stated the following:

“When Mr. Horntvedt entered into the plea agreement, there was an indication that he entered into the plea agreement freely and voluntarily without coercion . . . . However, Mr. Horntvedt declared, a few days later, he no longer felt that he entered his plea agreement freely and voluntarily.” ~Defense Counsel for Mr. Horntvedt 

After considering the record, the trial court held a hearing with the parties and denied the motion to withdraw the plea. The court found the prosecutor’s statements “improper.” Nevertheless, the court determined Mr. Horntvedt’s guilty plea was knowing, voluntary, and intelligent. The court then sentenced Mr. Horntvedt to serve 25 years of confinement and 36 months of community custody.

Mr. Horntvedt appealed his convictions for felony sex trafficking. He argued his guilty plea was procured through an improper appeal to racial bias.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began its analysis by stating a trial court must permit a defendant to withdraw their plea in order to correct a “manifest injustice” under CrR 4.2(f)

“In this context, a manifest injustice refers to an injustice that is obvious, directly observable, overt, not obscure,” said the Court of Appeals. “One type of manifest injustice that warrants withdrawal of a plea occurs when a plea is involuntary.” The Court explained that a plea may be involuntary due to circumstances such as misinformation, threats, or mental coercion. Additionally, the Court emphasized a defendant’s constitutional right to due process protects against entry of an involuntary plea.

“Mr. Horntvedt argues his plea was involuntary in violation of due process because it was predicated on race-based prosecutorial misconduct. Our case law has yet to address whether this type of prosecutorial misconduct can render a plea involuntary. We conclude that it can. And here, based on an objective review, we conclude the prosecutor’s invocation of race to leverage a guilty plea rendered the plea involuntary as a matter of law.” ~WA Court of Appeals

The Court reasoned that fact that although the prosecutor’s comments were an apparently intentional appeal to racial bias, it does not mean that the prosecutor was actually motivated by animus. The Court stated that although misguided, the prosecutor’s comments may have been well intentioned. “Undoubtedly the prosecutor believed the plea offer was in Mr. Horntvedt’s best interests,” said the Court. “And she appeared motivated to go out of her way to make sure Mr. Horntvedt understood the risks involved in taking his case to trial.”

Nevertheless, stated the Court, the prosecutor’s apparently benign intentions were irrelevant to the objective observer standard. The objective observer analysis is concerned with the impact of racial bias—not a person’s intent.

With that the Court of Appeals remanded the trial court to allow Mr. Horntvedt to withdraw his plea and, if he withdraws it, to set this matter for trial.

My opinion? Good decision. All members of the legal community—law enforcement, attorneys, and judges— bear responsibility for addressing racial inequities in our justice system. This is hard work. None of us has all the answers and all of us will sometimes get things wrong. Yet we must move forward with humility, compassion, and dedication to constant improvement. Mr. Horntvedt has established a manifest injustice impaired the voluntariness of his guilty plea. He was rightfully given the option to withdraw.

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.

Over 29,100 Years ‘Lost’ In Prison Due To Wrongful Convictions

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Government corruption and negligence drive most wrongful convictions, report finds

Excellent article by Kiara Alfonseca of abcnews.go.com uncovered disturbing data on wrongful convictions. An exoneration-tracking project called National Registry of Exonerations (NRE) found that more than 29,100 years have been “lost” in prison due to wrongful convictions. The wrongful convictions were based on misidentifications, false confessions, police failure to disclose evidence and more.

The NRE has actively recorded this trend data since 1989. Since then, 3,287 exonerations have been recorded. The project is hosted by University of California Irvine, University of Michigan Law School and Michigan State University College of Law.

“We’ve all been raised to believe that our system is a great system that works well, that we identify the right people, we convict the right people, we give people the right sentences . . . It has been a very hard awakening for a lot of people to realize that that’s just not always the case.” ~Attorney Marissa Boyers Bluestine, Assistant Director at the Quattrone Center for the Fair Administration of Justice.

The registry found that the most often cited factors for wrongful convictions are as follows:

  • Witness Misidentification
  • False Accusation
  • False Confession
  • Faulty Forensic Evidence
  • Inadequate Legal Defense
  • Police Misconduct
  • Prosecutorial Misconduct

In some cases, the methods used to collect evidence in the past have since been proven to be scientifically unreliable, according to experts. This was the case with Sidney Holmes, whose armed robbery conviction was recently overturned in part because of misidentification, which was partly due to outdated photo and live lineup practices commonly used by law enforcement in the 1980s, officials say.

Black people represent 53% of the 3,200 exonerations listed in the National Registry of Exonerations. This data exists despite the fact that black people make up just 13.6% of the American population. Nevertheless, black people represent 38% of the incarcerated population, according to the Prison Policy Initiative.

“Innocent Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes.” ~National Registry of Exonerations 2022 Report.

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

Prosecutor’s Use of Term “Mexican Ounce” At Trial Was Race-Based Misconduct

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Mexican Ounce (Minus Tax) : r/heroin

 In  State v. Ibarra-Erives (9/19/2022), the WA Court of Appeals reversed the defendant’s drug conviction because the Prosecutor ‘s use of the term “Mexican ounce” at trial was an intentional appeal to jurors’ potential bias.

BACKGROUND FACTS

In June 2018, the Snohomish Regional Drug Task Force executed a search warrant to recover drugs and related evidence in an apartment. A detective persuaded Mr. Ibarra Erives to open the door. Officers then “pulled him out onto the front landing” and arrested him. On the kitchen counter, police found white powder later determined to be methamphetamine.

On the closet shelf in a bedroom, officers discovered a backpack. The backpack contained
seven one-ounce “bindles” of methamphetamine and five bindles of heroin. The backpack did not contain any information identifying its owner. On the shelf next to the backpack, police found a digital scale and a box of plastic sandwich bags.

Ibarra-Erives admitted that he “temporarily” lived at the apartment. He told police he sometimes slept on the couch and sometimes on the pile of blankets officers observed in bedroom where they found the backpack. Ibarra-Erives said the prescription medication and clothes found on the floor of the bedroom were his. But he denied owning the backpack.

When police searched Ibarra-Erives’ pockets, they found a broken glass pipe used for smoking methamphetamine that had white residue and burn marks on it. He also had $591 in cash in his wallet. The State charged Ibarra-Erives with unlawful possession of a controlled substance with intent to manufacture or deliver.

At trial, Ibarra-Erives, who is Latinx, used a Spanish interpreter. During the State’s case in chief, the prosecutor questioned the lead detective about the amount of drugs found in the backpack in room. The detective testified that each “bindle” of methamphetamine weighed 28 grams, or 1 ounce. He then described the bindles of heroin, which each weighed 24.6 grams. He explained that for heroin, “25 grams is considered an ounce.”

When asked why, the detective responded, “I don’t know what the answer is to why, but the term on the street is it’s a Mexican ounce across the board, regardless of who is selling or buying 25 grams of a Mexican ounce.” Then in his closing argument to the jury, the prosecutor twice emphasized that each bindle of heroin had been packaged as a “Mexican ounce.”

The jury convicted Ibarra-Erives as charged. He appealed his conviction on arguments that the prosecutor’s remarks suggested that a Latinx person likely packed or possessed the drugs.  He argues the prosecutor used this gratuitous reference to connect him to the drugs. Consequently, this terminology invoked stereotypes of Mexican drug-dealing and dishonesty against him.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reversed Ibarra-Erives’ conviction.

The Court reasoned that a prosecutor’s zealous pursuit of justice is not without boundaries. However, prosecutors have a duty to the defendant to uphold their right to a fair trial.

“Prosecutors commit misconduct when they use arguments designed to arouse the passions or prejudices of the jury . . . These kinds of arguments create a danger that the jury may convict for reasons other than the evidence produced at trial. In cases where race should be irrelevant, racial considerations, in particular, can affect a juror’s impartiality and must be removed. ~WA Court of Appeals.

The Court further reasoned that an objective observer could view the prosecutor’s references “Mexican ounce” to describe the way heroin was packaged for sale as an intentional appeal to the jury’s potential bias. The term specifically suggests that the defendant was more likely to have possessed drugs packed to a “Mexican ounce” because he speaks Spanish and appears to be Latinx.

“Testimony that heroin is packaged in an amount commonly sold on the street is probative of an intent to sell the drugs. But the street term attributing that practice to a particular racial or ethnic group is not. And when the defendant appears to be a member of that same racial or ethnic group, such comments improperly suggest that he is more likely to have packaged or possessed the drugs.” ~WA Court of Appeals

With that, the WA Court of Appeals reversed the conviction.

My opinion? Good decision.  The prosecution took advantage of despicable stereotypes. In the State’s closing argument at trial, the prosecutor used the term “Mexican ounce” two times. The prosecutor’s use of the term was an apparently intentional appeal to jurors’ potential bias. It improperly suggested that Mr. Ibarra-Erives was more likely to have possessed drugs packed to a “Mexican ounce” merely because he speaks Spanish and appeared to be Latinx.

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

Jail Phone Calls

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SUNDAY EDITION | Kentucky jails scrutinized for recording attorney-inmate phone calls | In-depth | wdrb.com

My clients in jail often ask me whether their phone calls from jail are recorded by the jail staff. In short, yes, they are. A recent case gives helpful insight to this  issues.

In  State v. Koeller, the WA Court of Appeals held that a jail inmate’s phone call with counsel that was recorded and was accessed by a deputy prosecuting attorney (DPA) did not establish a basis for dismissal of charges.  The DPA was the only person who accessed the 15-minute long call, and he stopped listening to the call after 8 seconds when he recognized defense counsel’s voice.

BACKGROUND FACTS

The defendant Mr. Koeller was alleged to have sexually abused his stepdaughter for years. The State also alleged aggravating circumstances of domestic violence and of an ongoing pattern of sexual abuse.

The Island County jail records incoming and outgoing phone calls, except for calls from attorneys. On October 11, 2017, Defense Counsel Mr. Platt provided his cell phone number to the Island County jail so the automated recording system would not record any calls made between him and the defendant Mr. Koeller. The jail failed to do so.

The next day, Island County chief criminal deputy prosecutor (Prosecutor) checked the automated recording system and saw Koeller made an outgoing, 15-minute phone call that day. Prosecutor began playing the call and heard Defense Counsel’s voice, so he shut off the recording. Prosecutor heard only eight seconds of the phone call. He immediately told Defense Counsel about the recording and told the jail to register Defense Counsel’s phone number because it had failed to shield Platt from being recorded.

On March 26, 2019, about one week before the scheduled start of trial, Koeller filed a CrR 8.3(b) motion to dismiss as a result of the recording. The court denied the motion. In its ruling, the court found no one else “in connection with the State of Washington listened to the conversation.”

At trial, Koeller was convicted of multiple charges, including first degree child molestation. He appealed on arguments that the trial court mistakenly denied his Motion to Dismiss.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that a criminal defendant has a constitutional right to confer privately with Defense Counsel. Where the government violates this right, it creates a rebuttable presumption of prejudice to the defendant.

Here, however, Prosecutor heard only eight seconds of the call between Koeller and Defense Counsel. He heard no substance of the conversation and no one else in connection to the Prosecutor’s Office listened to the conversation. The State did not obtain any information material to the defense.

“Although Koeller argues the court abused its discretion because the State did not prove Chief Briones did not listen to the call, the trial court found otherwise, and its finding is supported by substantial evidence. Because the court’s findings support its conclusion that Koeller was not prejudiced, the court did not abuse its discretion by denying the CrR 8.3(b) motion to dismiss.” ~WA Court of Appeals.

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.

Study Finds Police Misconduct Leads to Wrongful Convictions

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Advocacy group speaks out against wrongful convictions

A recent study finds police misconduct leads to wrongful convictions. The misconducts included witness tampering, violent interrogations and falsifying evidence.

Titled, Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police and Other Law Enforcement, researchers from the National Registry of Exonerations studied 2,400 convictions of defendants who were later found innocent over a 30-year period and found that 35% of these cases involved some type of misconduct by police. More than half – 54% – involved misconduct by police or prosecutors.

The study comes as protests over racial injustice and police brutality spread across many cities for several months following the May 25 death of George Floyd in police custody.

Researchers found that misconduct by police and prosecutors is among the leading causes of disproportionate false conviction of Black defendants. For example, 78% of Black defendants who were wrongly accused of murder were convicted because of some type of misconduct. That number is 64% for white defendants, according to the study. An even wider gap: 87% of Black defendants later found innocent who were sentenced to death were victims of official misconduct vs. 68% for white defendants.

The study found that hiding evidence that is favorable to defendants is the most common type of misconduct.

Researchers cite five murder trials in which prosecutors concealed evidence about the cause of death. In one case, a woman was convicted of killing her boyfriend, but prosecutors did not disclose a medical report that found he had died of suicide.

“In a few rape exonerations, the authorities concealed evidence that the complainants had a history of making false rape allegations . . . And in at least a dozen child sex abuse cases, police, prosecutors and child welfare workers concealed statements by the supposed victims that they had not in fact been molested.” ~National Registry of Exonerations

In some cases – according to the study – police officers falsely claimed they were victims of assaults by defendants. In one such case, police officers from Chattanooga, Tennessee, beat a defendant at a reentry facility because he defended himself. Adam Tatum was sentenced to two years in prison for assaulting officers but was later exonerated after video showed that officers attacked him without provocation. Tatum sued and later settled for $125,000.

Also, police officers were disciplined or convicted of crimes in only 19% of exonerations that involved some type of misconduct, according to the study. That’s a rate five times higher than those for prosecutors, whose misconduct account for 30% of the cases.

Please contact my office if you, a friend or family member are charged with a crime and evidence appears to have been withheld. Hiring an experienced and effective criminal defense attorney is the best step toward justice. Experienced attorneys regularly file and argue Motions to Compel and/or a Brady Motions; both of which force the Prosecutor to give exculpatory evidence and release discovery that they otherwise wouldn’t.

Improper Opinion Testimony

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Chicago cops reluctantly testify against 1 of their own

In State v. Hawkins, the WA Court of Appeals held that a police officer gave improper opinion testimony regarding the defendant’s guilt and credibility.

FACTUAL BACKGROUND

The Defendant Mr. Hawkins was arrested and charged with assault in the third degree for briefly strangling Mr. Ali, a King County Metro bus driver, over a fare dispute. The incident was witnessed by a passenger who did not speak English and a passenger who saw an argument occur, but did not witness actual physical touching.

The State’s only other witnesses were Deputy Baker and Deputy Garrison, the King County Sheriff’s detective that reviewed Baker’s initial investigation and referred Hawkins’s case for prosecution. Over defense counsel’s repeated objections, the prosecutor tried to elicit opinion testimony from both deputies concerning whether they believed whether the bus driver Ali was a credible witness.

Several of the defense’s objections were sustained, but the court eventually allowed Officer Baker to answer. Although Deputy Baker’s answer was couched in probable cause to arrest, Baker’s answer implied he believed Ali’s version of events over Hawkins.

Deputy Garrison’s answers also gave an opinion about credibility. Garrison stated he would only refer a case for prosecution if there was “some credible ability to prosecute.”

The jury convicted Hawkins as charged.

On appeal, Hawkins contends that the prosecutor committed prejudicial misconduct by eliciting opinion testimony from police witnesses concerning witness credibility.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law. A prosecutor also functions as the representative of the people in a quasi-judicial capacity in a search for justice.

The Court said the prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. Thus, a prosecutor must function within boundaries while zealously seeking justice.

Also, the Court of Appeals emphasized there are some areas of opinion testimony that are inappropriate in criminal trials.

“This is particularly true when the opinion testimony is sought from law enforcement,” said the Court of Appeals. “Officer testimony has an aura of special reliability and trustworthiness.”

The Court of Appeals said the State’s case was weak.

“There is no question that the State’s case against Hawkins was weak. There was no physical evidence, there was no surveillance footage, and Ali had no visible injuries and declined medical attention. The State offered no firsthand witnesses other than Ali.” ~WA Court of Appeals

As a result, the Court reasoned that the State’s case inappropriately focused on the police officers’ opinion of the bus driver Ali’s credibility:

“Because the State’s case was weak, eliciting the officers’ opinions that they believed they had a credible witness in Ali had a clear prejudicial effect on Hawkins’s right to a fair trial.” ~WA Court of Appeals

The Court ruled the Defendant’s case was prejudiced and overturned his conviction.

My opinion? Good decision. A prosecutor functions as the representative of the people in the search for justice. The prosecutor also owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated.

It is inappropriate in a criminal trial for the prosecutor to seek opinion testimony as to the guilt of the defendant, the intent of the accused, or the credibility of witnesses. This is particularly true where the opinion sought is that of a law enforcement officer.

Please review my Legal Guide on Prosecutorial Misconduct for more information on this subject. And please contact my office if you, a friend or family member face criminal charges. Hiring an experienced 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.

The Role of the Prosecutor

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https://www.facebook.com/ndaajustice/videos/2280296352300326/

Have you ever thought about the role of a prosecutor and their work within the community?

Well, look no further. The National District Attorneys Association released a video titled, “The Role of the Prosecutor.”

Overall, it’s a good video. It accurately shows how prosecutors go about presenting cases against individuals who are suspected of breaking the law, initiating criminal investigations, conducting trials and recommending the sentencing of offenders.

Although defense attorneys and prosecutors are adversaries in the criminal justice system, it’s extremely important for them to develop and maintain cordial relationships. According to the Department of Justice’s Bureau of Justice Assistance, “The overwhelming majority (90 to 95 percent) of cases result in plea bargaining.”

Plea bargains are agreements between defendants and prosecutors in which defendants agree to plead guilty to some or all of the charges against them in exchange for concessions from the prosecutors. These agreements allow prosecutors to focus their time and resources on other cases, and reduce the number of trials that judges need to oversee.

In plea bargains, the defense lawyer and prosecutor discuss the case, and one or the other proposes a deal. The negotiations can be lengthy and conducted only after both parties have had a chance to research and investigate the case. Or, they can be minute-long exchanges in the courthouse hallway. Prosecutors usually agree to reduce a defendant’s punishment. They often accomplish this by reducing the number of charges of the severity of the charges against defendants. They might also agree to recommend that defendants receive reduced sentences. In this process, good criminal defense attorneys are persuasively effective at explaining the facts, the law and their defense theory.

Great criminal defense attorneys, however, have decent working relationships with prosecutors. These relationships are built on years of mutual respect and working on cases together in a straightforward, honest, ethical manner.

Often, prosecutors know nothing more than the police reports and criminal histories of the defendants they bring charges against. They lack context and insight into why the parties involved criminal investigations behave certain ways. Based on that working relationship, great criminal defense attorneys are adept at humanizing their clients and persuading an otherwise hardened prosecutor to consider the deeper complexities of a case.

Please contact my office if you, a friend or family member face criminal charges. It’s important to hire an experienced criminal defense attorney like myself who appreciates the role of the prosecutor and works with them on a regular basis.

“Original Gangster” Comment Improper, But Not Prejudicial

Bellingham Defense Attorney, Gangs, Homicide & Manslaughter, Prosecutorial Misconduct, Race & Law, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In In re Personal Restraint of Sandoval, the WA Supreme Court held that it was improper for the prosecutor to refer to the defendant as an “OG” (original gangster) in closing argument, where no one testified that simply being a longtime gang member was sufficient for “OG” status.

BACKGROUND FACTS

Mr. Sandoval is a member of the Eastside Lokotes Surefios (ELS) gang in Tacoma.
On February 7, 2010, ELS members, in a stolen van, pulled up to a car and fired no less
than 12 gunshots from at least two firearms into the passenger door of the car. The
driver, Camilla Love, was hit three times and died from her injuries.

Sandoval was arrested in September 2010. The State ultimately charged Sandoval
with three counts: first degree murder (by extreme indifference) of Camilla Love (count
I), first degree assault of Joshua Love (count 2), and conspiracy to commit first degree murder (count 3). The other ELS members involved in the shooting were similarly
charged. They were tried along with Sandoval in the same proceeding, but pleaded guilty
after the prosecution rested in exchange for reduced charges. Only Sandoval took his
case to the jury.

During trial, the Prosecutor presented evidence indicating that Sandoval was a longtime ELS member. Sandoval concedes this. Evidence was also presented that OGs have elevated status. The trial court found this evidence sufficient to support a reasonable inference that
Sandoval was an OG.

Later, the jury ultimately convicted Sandoval as charged. The court sentenced Sandoval to a total sentence of 904 months of confinement. The ELS members who pleaded guilty received reduced charges.

Sandoval appealed. Among other issues on appeal, he argued that comments made by the prosecutor during rebuttal closing argument constituted misconduct and that this misconduct violated his constitutional right to a fair trial.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Prosecutor’s “OG” References were Improper But Did Not Prejudice
    Sandoval.

The court explained that in order to make a successful claim of prosecutor misconduct, the defense must establish that the prosecuting attorney’s conduct was both improper and prejudicial. To be prejudicial, a substantial likelihood must exist that the misconduct affected the jury’s verdict. The Court further reasoned that when a defendant objects to an allegedly improper comment, it evaluates the trial court’s ruling for an abuse of discretion. Failure to object to an allegedly improper remark constitutes waiver unless the remark is so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.

“While some of the prosecutor’s comments were improper, Sandoval fails to demonstrate prejudice,” said the Court. The Supreme Court agreed that the prosecutor’s repeated references to Sandoval being an “OG” during his rebuttal closing argument was an improper attempt to embellish Sandoval’s culpability to the jury because the inference was not reasonably supported by the record.

“But no one testified that simply being a longtime gang member was sufficient for OG status,” said the Court. The court reasoned that although a witness testified that an OG was one of the older original members of the gang, the witness did not identify Sandoval as such, instead naming older gang members who were incarcerated at the time of the Love shooting. “Thus, the evidence presented at trial was insufficient for the prosecutor to reasonably infer that Sandoval was an OG,” said the Court. “As a result, the OG comments were improper.”

Nevertheless, the Supreme Court also reasoned that the prejudice generated from such comments is negligible. Sandoval freely admitted he needed to be involved in the attack, attended planning meetings for the attack, and voluntarily assisted a co-defendant in searching out a target and keeping an eye on police that evening. “Given these admissions, it is not substantially likely that the jury’s mistaken belief that Sandoval may have been an OG would have affected the outcome in this case. “This claim has no merit,” said the Court.

2. The Prosecutor’s Racial Comments Were Not Improper.

Here, Sandoval claimed that the prosecutor improperly distinguished between the
gang status of Asian/Pacific Islanders and Latinos during rebuttal closing argument.
The Supreme Court explained that it is improper and a Sixth Amendment violation for a
prosecutor to “flagrantly or apparently intentionally appeals to racial bias in a way that
undermines the defendant’s credibility or the presumption of innocence.”

The court explained that when racial bias is implicated, the normal prejudicial standard for prosecutorial misconduct is elevated. To avoid a constitutional violation from prosecutorial misconduct based on comments appealing to racial bias, the State must demonstrate that the misconduct did not affect the verdict “beyond a reasonable doubt.”

“However, this heightened standard does not apply every time a prosecutor mentions
race,” said the Court. “It applies only when a prosecutor mentions race in an effort to appeal to a juror’s potential racial bias, i.e., to support assertions based on stereotypes rather than evidence.”

The Supreme Court reasoned that here, the prosecutor referred to Asian/Pacific Islanders one time and did so to explain the hierarchy of the ELS membership; that is, only Latinos such as Sandoval could be full-fledged members.

The Supreme Court further reasoned that Sandoval, rather than the State, has the burden of demonstrating that the prosecutor’s comment regarding the role of Asian/Pacific Islanders was improper and prejudicial, and he fails to do so. The trial court did not err when it held that the prosecutor’s statement about gang hierarchy was a reasonable inference based on all the testimony that came out at trial.

“It is not substantially likely that any alleged improper comments by the prosecutor
prejudiced Sandoval,” said the Supreme Court. “This claim has no merit.”

With that, the Supreme Court upheld Sandoval’s conviction and sentence.

My opinion? Prosecutors are bound by a sets of rules which outline fair and dispassionate conduct, especially during trial. Generally, prosecutorial misconduct is an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment. If prosecutors break these rules, then misconduct might have 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.