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.
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whose armed robbery conviction was recently overturned in part because of misidentification, which was partly due to outdated photo and live lineup practices commonly used by law enforcement in the 1980s, officials say.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.
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.
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.
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.
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.
A recent study finds police misconduct leads to wrongful convictions. The misconducts included witness tampering, violent interrogations and falsifying evidence.
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 aBrady Motions; both of which force the Prosecutor to give exculpatory evidence and release discovery that they otherwise wouldn’t.
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.
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.”
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.
Ever wondered about the role of a prosecutor and their work within the community? Check out our new video!Thank you to the Karpel Foundation and the San Diego County District Attorney Office for their support in making this video.
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.
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
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.
In State v. Boyd, the WA Court of Appeals held that a prosecutor improperly disrespects defense counsel by using “bla, bla, bla” to describe opposing counsel’s argument. This phrase is both disrespectful and dismissive.
Boyd is homeless, has a ninth or tenth grade education, and is mentally ill. At the time of his crime in 1998, homeless sex offenders were not required to register as sex offenders because they did not have addresses. The legislature subsequently amended the statute to require homeless sex offenders who lacked a fixed address to update the county sheriff weekly, in person, of their whereabouts.
Boyd largely complied with the registration requirement but pleaded guilty to
crimes of failure to register in 2009, 2010, and 2013.
In March 2015, the State charged Boyd with failure to register as a sex offender between January 27, 2015 and February 10, 2015. The court ordered a competency evaluation after Boyd rambled incoherently during a pretrial hearing. A month later, after Boyd was found competent to stand trial, the court held another hearing. At that hearing, the court issued a scheduling order, which Boyd signed, setting the next hearing date for November 6, 2015. While explaining the order to Boyd, however, the court misspoke—it told Boyd that he needed to appear on December 6, 2015. After Boyd failed to appear on November 6, 2015, the Prosecutor added a charge for bail jumping.
During closing arguments, the Prosecutor appeared to have given a mocking and deragatory tone. After the jury retired to deliberate, Boyd’s defense attorney moved for a mistrial based on prosecutorial misconduct:
“During the prosecutor’s first closing argument, it was normal in tone, very even and level. And the rebuttal closing argument after I had given my closing, she started out and then repeatedly throughout that closing argument, either pretending she was me or Mr. Boyd, but was kind of in a sing-song tone, a complaining child-like type tone of voice when mentioning the barriers that my client faces as a homeless person and saying “bla, bla, bla,” and this was something that was repeated throughout the closing argument. And so I’d be making a motion for a mistrial based on—based on the prosecutor’s tone of
voice during the closing argument.”
The trial court denied the motion, explaining: “I did not hear what I consider to be a mocking or derogatory tone.” While the trial court agreed that the prosecutor used a different tone than her normal speech tone, it concluded that “having listened to many, many, many closing arguments, there was nothing in the tone that I heard that was derogatory or mocking or anything that grabbed my attention as being out of line, inappropriate or unprofessional.”
Boyd was convicted by a jury as charged and sentenced to 45 months in prison.
THE APPEAL
On appeal, one of the issues was whether the trial court abused its discretion by denying Boyd’s motion for a mistrial based on prosecutorial misconduct.
COURT’S ANALYSIS AND CONCLUSIONS
The Court of Appeals said that the inquiry on prosecutorial misconduct consists of two prongs: (1) whether the prosecutor’s comments were improper and (2) if so, whether the improper comments caused prejudice. To show prejudice, the defendant must show a substantial likelihood that the prosecutor’s statements affected the jury’s verdict. The defendant bears the burden of showing that the comments were improper or prejudicial.
Here, the prosecutor’s references to Boyd’s “barriers” and chaotic life are not improper remarks about his homelessness, poverty, or mental illness because they rebut the very defense advanced by Boyd’s counsel—that complying with the law was “too much” for him because of his “barriers.” But we find that the prosecutor impugned defense counsel by stating “And again, Boyd’s Defense Counsel talks about chaos in his life, barriers, bla, bla, bla. No evidence of that.”
“Using ‘bla, bla, bla’ to refer to an opposing counsel’s argument is both disrespectful and dismissive. Although the statement does not imply deception or dishonesty like ‘crock,’ it implies that the arguments are unworthy of consideration and may be dismissed offhand. We find the statement was improper.”
Nevertheless, the Court of Appeals was not convinced that the Prosecutor’s statements during trial affected the jury’s verdict. “The court did not abuse its discretion by denying Boyd’s motion for a mistrial,” said the Court, and upheld Boyd’s conviction and sentence.
THE DISSENT
Justice Becker’s dissent focused on how poverty issues negatively impact justice as homelessness applies to offenders who have a duty to register:
“Our (failure to register) statute has grown steadily harsher, especially as applied to homeless offenders. I believe it is time to reconsider the ex post facto analysis of the statute in light of the changes since State v. Ward. I would join the jurisdictions holding that frequent in-person reporting requirements render a registration statute so punitive that applying it retroactively violates the constitution. I would reverse Boyd’s conviction and remand for dismissal with prejudice.”
My opinion? “Bl bla bla” issues aside, I agree with the dissenting Justice Becker when she says that frequent in-person reporting requirements render a registration statute so punitive that applying it retroactively violates the constitution. Being homeless is difficult enough by itself. Requiring homeless people to register under Washington’s rigorous “Duty to Register” statute is incredibly difficult, if not nearly impossible, for homeless people to follow and obey. As a a result, the law unequally punishes sex offenders for being homeless. That’s simply not fair.
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.
Kelly suggest reforms to rein in the charging powers of prosecutors. He recommends the creation of independent panels of clinical experts that would screen offenders and recommend to prosecutors who ought to be diverted to treatment.
“There is nothing about punishment that changes the underlying conditions, disorders and deficits that the majority of criminal offenders bring into the justice system,” Kelly says. Arrestees with mental illness, substance-use disorders, homelessness and other problems churn through the system and into prison, where the underlying issues that led to a lawless life are ignored.
In a conversation with TCR Contributing Editor David J. Krajicek, Kelly explains why he believes the system should incorporate more carrot and less stick for offenders and how the Trump administration’s approach threatens to make things worse. He also suggests that the public already has a more sophisticated view of how to fix the system than our political leaders.
The Crime Report: What is the impact of the country’s justice policy failures?
William R. Kelly: The short financial and statistical answer is that over the past 45 years, we have spent $1 trillion on the war on crime, $1 trillion on the war on drugs and have accomplished a recidivism rate of 65 percent. Nearly all of this effort has focused on trying to punish crime out of people, based on naïve conceptions of criminality such as “hanging around with the wrong people” and “making bad decisions.” The evidence is quite clear that crime has much more complex origins and correlates.
What we have accomplished is a nearly perfect recidivism machine, placing all of us at the unnecessary and avoidable risk of criminal victimization, and wasting extraordinary amounts of money.
TCR: You refer to “the culture of American criminal justice.” What are its key characteristics and how do you change it?
Kelly: It is squarely based on the “tough on crime” mantra. This has dictated the decisions of legislators, prosecutors, judges, and corrections officials. The focus over the past 45 years has been driven by retribution and misguided assumptions that punishment deters re-offending. The question that has been routinely asked is how much punishment does this offender deserve. A more productive question for many offenders is how do we reduce the likelihood a particular offender will reoffend…
We need to provide clear incentives to motivate changing how we think about crime and punishment. Cost-benefit analyses conclusively show that behavioral change through clinical intervention like mental health and substance use disorder treatment is much more effective and cost efficient. The financial advantages should motivate legislators and local government officials. Reducing recidivism should be an incentive for prosecutors, judges, public defenders, and probation and parole officers, who will benefit from reductions in caseloads. Then there is the greater good of enhanced public safety, something we incorrectly assume the justice system already does.
TCR: You say the facile American view of crime and punishment got us here. Have voters grown more sophisticated, or are reform-minded pols still at risk of being Willie Hortoned?
Kelly: Public opinion data demonstrate that much of the public has a more nuanced view of crime and punishment than many legislators, prosecutors and judges. The public believes that the purpose of corrections is to rehabilitate offenders and therefore reduce recidivism. Many have moved beyond “lock ‘em up and throw away the key.”
Unfortunately, many policymakers, elected officials and some segments of the public still seem to be holding on to the idea that criminals are just bad people deserving maximum punishment. I’m sorry to say that Willie Horton is alive and well…There appears to be a reluctance to really embrace meaningful, comprehensive criminal justice reform.
TCR: You write, “We have arrived at the nadir of politics and policy.” Did you write that before or after Donald Trump’s election?
Kelly: I wrote that before Trump was elected when I incorrectly believed that we had already reached bottom. Who would have thought that anyone with any sense of history and even a superficial exposure to the evidence would run as the law-and-order candidate and resurrect the war on drugs?
TCR: How do you demonstrate that “tough” and “dumb” are synonyms when it comes to criminal justice?
TCR: Who’s to blame for the state of “correctional malpractice” you say we are in?
Kelly: First and foremost, elected officials who have blindly championed “tough on crime” policies to their political benefit, but to the detriment of public safety and the prudent use of tax dollars. State legislators and Congress have provided the mechanisms for tough on crime—mandatory sentences, restrictive parole release laws, and an ever-expanding criminal code that seems to make criminal justice the go-to system for just about every social ill.
But the culpability of elected officials goes well beyond that. The vast majority of offenders in the criminal justice system have a substance-use disorder, 40 percent are mentally ill, and 60 percent have had a least one traumatic brain injury often leading to neurocognitive dysfunction…The decision to not properly fund public health, schools and social welfare agencies has created problems that by default are managed by the criminal justice system.
Criminal justice reform means much more than merely reforming the criminal justice system. It requires massive changes to and investment in a variety of collateral institutions.
TCR: Your book articulates and recommends a scientific approach to justice reform. Yet science is out of favor in Washington and many state houses. Is there a scientific path forward?
Kelly: Yes there is, but I am afraid that we need to disguise it for some, by minimizing the science and emphasizing the public safety benefits and cost savings.
TCR: You note an overlooked data point: The country has 21 million people with substance-use disorders, the world’s third-highest rate. What explains this particular American exceptionalism?
Kelly: It is largely a result of the lack of public substance abuse resources, including inadequate treatment capacity and insurance coverage. Much of it can be attributed to the failure of the war on drugs and the belief that we can either punish or threaten substance abuse out of people. Criminalizing substance abuse rather than treating it as a public health problem has led to the failure to provide adequate funding for treatment.
Unfortunately, the picture is bleaker. The majority of substance abuse and mental health treatment in the U.S. is paid for by Medicaid. Current versions of repeal and replacement of the Affordable Care Act call for substantial cuts to Medicaid. That does not bode well for a problem that is crippling the country, the economy, communities, families, and the justice system.
TCR: You write that we have used an absurdly simplistic approach (lock ‘em up) for a boundlessly complex problem. Explain briefly the research on co-morbidity among inmates.
Kelly: The vast majority of offenders in the criminal justice system have clearly identifiable disorders, deficits and impairments. Many have more than one disorder, known as co-morbidity or co-occurring disorders. For example, the majority of offenders with a mental illness also have a substance-use disorder. Neuro-cognitive problems are often co-morbid with mental health and substance abuse. It does not require a clinician to appreciate that “lockin’ ‘em up” does nothing to alleviate these conditions and in fact typically exacerbates them.
When we do attempt to address these problems–diversion to a drug court or a mental health court–our focus is on just one crime-related condition. Our correctional treatment and rehabilitation efforts typically ignore co-morbidity.
TCR: What do the rest of us in a presumably civilized society owe these damaged people?
Kelly: I don’t think it’s so much what we owe them, but what do we owe ourselves: lower crime and recidivism, lower risk of being victims of crime, and lower cost of criminal justice. We have the tools to accomplish these things, but making it a political priority has been elusive.
TCR: You compare the U.S. system to those of Germany and Holland; it doesn’t stack up well. You cite one lesson we can learn from those countries: “If you treat inmates like humans, they will act like humans.” How is it possible that we don’t know that already?
Kelly: In order to justify our draconian and dysfunctional reliance on punishment, we need to think of criminals as “not like us” in fundamental ways, as deserving retribution and harsh punishment. Punishment is what we have been told is the only thing “these people” will understand.
Psychological research confirmed a long time ago that, in most cases, incentives work much better than punishment for changing behavior. This is another example of the disjuncture between scientific evidence and criminal justice policy.
TCR: Your key recommendation is an “unprecedented expansion” of diversion away from court toward intervention and treatment. Describe the panel review process you suggest.
Kelly: Traditional criminal prosecution, conviction and punishment are entirely appropriate for many offenders. For example, violent offenders and chronic, habitual offenders probably need to be separated from society through incarceration in the interest of public safety. For many others, such as non-violent offenders and many drug offenders, we have a much better chance of reducing recidivism by diverting them and mitigating the factors that are associated with their criminality. One of the key issues here is making good decisions about who to divert and who to prosecute.
We developed the concept of independent panels of clinical experts to facilitate better decision-making, both in terms of who should be diverted and what treatment or intervention will decrease the probability of recidivism. Offenders often have complex clinical needs that require the special expertise of psychiatrists, psychologists and clinical social workers who can assess and diagnose, determine the risk of re-offending, and make recommendations to prosecutors.
The goal is to divert appropriate individuals away from traditional prosecution to situations where their risk can be supervised and managed and where they can receive adequate treatment and intervention.
TCR: And this is the “disruptive innovation” of your book title?
Kelly: The panels are part of it. Implementing this concept will require a substantial shift in how prosecutors do their jobs, as well as how we think about crime and punishment. In effect, this requires changing the criminal justice culture.
We also argue that all levels of government need to address major deficiencies in public health, a fundamental consideration in assuring adequate capacity and expertise for intervention and treatment. The bigger picture is that criminal justice reform requires disruptive innovation of collateral institutions, such as public health.
TCR: And how might it be greeted by prosecutors, who hold all the power right now?
Kelly: This will not be easy. However, reasonable incentives for prosecutors should be recidivism reduction, in turn reducing caseloads.
The primary reasons that prosecutors’ caseloads are so large and unmanageable relate to the failure to reduce recidivism.
TCR: You say these changes will force us to redefine success in our justice system. How so?
Kelly: Success should be measured by recidivism rates, something directly related to performance of criminal justice. As it stands now, there really is no accountability. Everyone involved in criminal justice–legislators, police, prosecutors, defense attorneys, judges, and corrections officials–should all be held responsible for recidivism reduction. That would also be a disruptive change.
TCR: Tell me about the process of partnering with Robert Pitman and William Streusand in this book.
Kelly: I wrote the book, but both Pitman and Streusand played very important roles in devising solutions. For example, Pitman, a former U.S. Attorney who is now a federal judge, brought his knowledge and expertise to the task of developing statutory and procedural details for how the expert panels would fit into the roles and responsibilities of prosecutors, defense counsel and judges.
The input of Streusand, a psychiatrist, was crucial in the development of the clinical protocol for the expert panels and assessing offender dysfunction, as well as the discussions about fixing public health.
TCR: You were going through a serious health crisis while writing this book, as you point out in the introduction. I hope you are doing well. I wonder if that diversion somehow informed the book’s content.
Kelly: Thank you. I am in complete remission and feel very blessed. To be honest, it could not have worked out any better. I was diagnosed in early March of 2016, when I had a rough draft of one chapter written. I was so fortunate that I had this project to distract me from the reality of being pretty sick and going through some difficult chemo. It was also fortuitous that I had two collaborators who are very good friends and played important roles in my recovery.
I’m not sure that being sick informed the content, but I suspect it influenced the tone. If I sound impatient at times in the book, it is probably a result of being confronted with the reality that life is short.
My opinion? Excellent article, and excellent book by Mr. Kelly.
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.
