Category Archives: Race & Law

Low-Level Robbery Won’t Get A Reduced Sentence

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In State v. Thomason, the WA Supreme Court held that the low-level, de minimis nature of some crimes can allow for an exceptional downward sentence. However, the minimal level of force used to prove Robbery makes it inappropriate to allow a downward sentence.

FACTUAL BACKGROUND

On September 5, 2018, Thomason entered Yoke’s Fresh Market grocery store in Spokane.  A plainclothes security guard, Mr. Swartz, followed Thomason around the store. Swartz watched Thomason pick up about $15 worth of meat and cheese. Thomason proceeded to another part of the store and tucked the food down his pants. Thomason then left the store without paying.

Swartz followed Thomason out and confronted him. Swartz grabbed Thomason’s arm, displayed his badge, and asked Thomason to go back inside the store. Thomason tried to pull free, and Swartz warned him that he was only making the situation worse. The two pulled at each other back and forth as Swartz tried to detain Thomason and Thomason tried to break free.

During this exchange, Thomason swung at Swartz two times. Thomason used a closed fist, aimed at Swartz’s face both times, and hit Swartz the second time with a glancing blow. Swartz yelled at his partner, a guard in training, to help. Thomason punched Swartz a third time. Swartz testified that the third punch “hurt” and caused a minor injury. His face was sore and slightly red for a day or two. Thomason escaped by pulling out of his sweatshirt and running. He was seen getting into a passenger car and was eventually apprehended.

The State charged Thomason with second degree robbery just before trial. A jury convicted him as charged.

THE SENTENCING

At sentencing, the parties agreed that Thomason’s offender score was 10. That made his standard sentencing range 63-84 months. Thomason requested a 12-month sentence. This was a exceptional downward departure from his sentencing range.

The trial court judge considered an exceptional sentence below the standard range. The judge said that the crime was no more than a “glorified shoplifting charge” that should have been treated as a misdemeanor. Nevetheless, the judge determined that the law barred him from imposing an exceptional downward sentence. The judge imposed 63 months, the bottom of the standard range, instead.

Thomason appealed on several grounds. However, the Court of Appeals affirmed his conviction. The WA Supreme Court granted appellate review solely on the exceptional sentence issue.

COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that Washington’s Sentencing Reform Act lists mitigating circumstances that can support an exceptional sentence below the standard range. It explained that in appropriate cases, the de minimis nature of a crime can support an exceptional sentence below the standard range. An appropriate case is one in which (1) the legislature did not consider the mitigating factor already when it listed the elements of the crime or set the standard sentence range and (2) the factor constitutes a substantial and compelling reason to depart below the range.”

The Court acknowledged Thomason’s argument that his crime was de minimis. The value of the items taken was low and no force was used to accomplish the taking. Although force was used to retain the property, it was “minor” force. However, the court disagreed with Thomasan’s argument that he was allowed an exceptional downward sentence.

The Court reasoned that the plain language of the robbery statute shows that the legislature did consider a defendant’s minimal use of force when it defined the crime of second degree robbery.

“As the emphasized language shows, the legislature clearly considered whether the crime of second degree robbery should punish a taking combined with a minimal showing of force. It criminalized a taking in which either ‘force’ ‘or’ no force at all—just ‘fear’—is used to accomplish the taking . . . The legislature even said that where, as here, such force or fear is used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, the degree of force is immaterial.”~WA Supreme Court

With that, the WA Supreme Court affirmed Mr. Thomason’s conviction.

My opinion? I agree with Chief Justice Steven Gonzalez’s concurring opinion. He wrote separately because he was increasingly troubled by our controlling, unchallenged precedents and the sentencing laws they interpret.

“Washington’s sentencing guidelines suggest, among other things, that unconstrained discretion in sentencing operates to favor whites and disfavor members of minority groups,” said Justice Gonzalez. As part of the concurrence, he references an article about prosecutorial discretion and sentencing guidelines. He ended his opinion with choice parting words:

“We must find a way to live justly with one another. We must not steal from each other or strike each other. But when it happens, the State must not respond with a disproportionate punishment. I am increasingly concerned that sentences like this for what amounts to glorified shoplifting are simply not just and speak to deep problems with our sentencing systems.” ~Chief Justice Steven C. Gonzalez, WA Supreme Court.

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

Criminal Conviction Reversed on Prosecutor’s Race-Based Misconduct & Voir Dire.

Survey: Trump's immigration rhetoric is negatively impacting Latinos' health

In State v. Zamora, the WA Supreme Court held that a Prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

BACKGROUND FACTS

This case arises from a violent police confrontation that escalated far beyond what should have happened. On Super Bowl Sunday, February 5, 2017, Joseph Zamora was walking to his niece’s house. A neighbor called the police to report a possible vehicle prowler. When Zamora reached the driveway of his niece’s home, he was contacted by responding officer Kevin Hake. Hake quickly became nervous because of Zamora’s demeanor. Fearing Zamora had a weapon, Hake grabbed Zamora and attempted to restrain him.

A struggle ensued and escalated to include what may be described as extreme acts of violence. Ultimately, eight officers were involved in subduing Zamora. When responding paramedics arrived, Zamora was handcuffed, hog-tied, and lying face down in the snow with two officers restraining him. He had no heartbeat or pulse. It took the paramedics seven minutes to revive him. Zamora was taken to the hospital and remained in intensive care for approximately four weeks.

Zamora was charged with two counts of Assault Third Degree on the officers who “restrained” him. Officer Hake’s injuries included some small scratches around his hand and wrist and some bruising. Officer Welsh sustained an injury to his hand from punching Zamora in the back of the head multiple times. Zamora’s case proceeded to trial.

The Grant County Prosecutor began voir dire. He introduced the topics of border security, illegal immigration, and crimes committed by undocumented immigrants. The prosecutor repeatedly elicited potential jurors’ comments and views on these topics. At one point, he referred to “100,000 people illegally” crossing the border each month. He asked jurors whether “we have or we don’t have enough border security.” He also asked jurors if they had “heard about the recent drug bust down at Nogales, Arizona where they picked up enough Fentanyl to killed 65 million Americans.” Defense counsel did not object to the prosecutor’s questions and remarks on border security, illegal immigration, undocumented immigrants, and drug smuggling.

A jury found Zamora guilty as charged.

Zamora appealed. He argued his right to an impartial jury was violated when the Prosecutor appealed to jurors’ potential racial bias during voir dire. Division Three of the Court of Appeals affirmed Zamora’s convictions, concluding that his constitutional rights were not violated. Zamora appealed to the WA Supreme Court. They accepted review.

LEGAL ISSUE

Whether the prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

COURT’S ANALYSIS & CONCLUSIONS

The Court concluded that the prosecutor intentionally appealed to the jurors’ potential racial bias in a way that undermined Zamora’s presumption of innocence. Therefore, Zamora was denied his constitutional right to an impartial jury because of the prosecutor’s race-based misconduct.

Justice Charled W. Johnson authored the Court’s opinion. He began by explaining that the Sixth and Fourteenth Amendments to the United States Constitution and the Washington State Constitution guarantee a criminal defendant the right to an impartial jury. Justice Johnson said the Court has long recognized that the constitutional right to a jury trial includes the right to an unbiased and unprejudiced jury. He also upheld the right to fair trial in the face of prosecutorial misconduct:

“As a quasi-judicial officer and a representative of the State, a prosecutor owes a duty to a defendant to see that their rights to a constitutionally fair trial are not violated. Thus, a claim of prosecutorial misconduct directly implicates the constitutional right to a fair trial.” ~Justice Johnson, WA Supreme Court.

Justice Johnson also explained that in order to prevail on a prosecutorial misconduct claim, a defendant who timely objects must prove that the prosecutor’s conduct was both improper and prejudicial in the context of the entire trial. If the defendant does not object, on appeal the defendant must show the improper conduct resulted in incurable prejudice.

However, when the misconduct implicates racial bias, “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence,” courts will vacate the conviction unless the State proves beyond a reasonable doubt that the race-based misconduct did not affect the jury’s verdict.

“To determine whether the prosecutor’s conduct in this case flagrantly or apparently intentionally appealed to jurors’ potential racial bias, we ask whether an objective observer could view the prosecutor’s questions and comments during voir dire as an appeal to the jury panel’s potential prejudice, bias, or stereotypes about Latinxs. The objective observer is a person who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination.” ~Justice Johnson, WA Supreme Court

Here, the Court reasoned that the prosecutor’s questions and remarks implicated the defendant’s ethnicity. The prosecutor’s conduct appealed to the jurors’ potential racial or ethnic bias, stereotypes, or prejudice. The Court said we must be vigilant of conduct that appeals to racial or ethnic bias even when not expressly referencing race or ethnicity:

“The state-sanctioned invocation of racial or ethnic bias in the justice system is unacceptable. Accordingly, we hold that the prosecutor in this case committed race-based misconduct during voir dire, and the resulting prejudice to the defendant is incurable and requires reversal. We reverse the Court of Appeals and reverse and vacate the convictions.” ~Justice Johnson, WA Supreme Court

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: Race Must be Considered in Determining Legality of Police Stops and Seizures

Center for the Study of Race and Law | University of Virginia School of Law

In State v. Sum, the WA Supreme Court held that  a person’s race – and law enforcement’s long history of discrimination against people of color – should be taken into account when determining the legality of police seizures.

FACTUAL BACKGROUND

The case concerns Palla Sum, a person of color who identifies himself as Asian/Pacific Islander. Mr. Sum was sleeping in his car in Tacoma one morning in April 2019 when police came upon him. Deputy Rickerson An officer ran his plates. The car was not stolen. There is no indication that it was parked illegally. Nevertheless, the car attracted the deputy’s attention because “it was parked there.”

The officer knocked on the window, asked Sum questions and asked him for identification. Sum gave a false name and the officer went back to his cruiser to check records. Sum then drove off, crashed into a front lawn and was caught as he attempted to run away.

Sum was subsequently charged with Making a False Statement, Eluding and Unlawful Possession of a Firearm, after a gun was found in his car.

Sum filed a pretrial motion to suppress pursuant to CrR 3.6. He argued that he was unlawfully seized without reasonable suspicion when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft. The court denied Sum’s motion to suppress. It ruled that because Sum was not seized when Rickerson asked him to identify himself, because the did not retain Sum’s physical identification to conduct his records check. Sum was convicted of all three charges by a jury.

Although the WA Court of Appeals upheld his conviction, Sum again appealed to the WA Supreme Court. He argued  that there is no justification—aside from unacceptably ignoring the issue of race altogether—for courts considering the totality of the circumstances to disregard the effect of race as one of the circumstances affecting evaluation of police contact.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court discussed the standard of review for addressing similar cases. It reasoned that the search and seizure inquiry is an objective test. An allegedly seized person has the burden to show that a seizure occurred. It further clarified that a person is seized if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement’s display of authority or use of physical force.

The Court also took its “objective analysis” test a step further:

“For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.” ~Justice Mary Yu, WA Supreme Court

Furthermore, wrote the Court, if the person shows there was a seizure, then the burden shifts to the State to prove that the seizure was lawfully justified by a warrant or an applicable exception to the warrant requirement.

Next, the Court applied its now race-conscious test to the facts of the case. It reasoned that based on the totality of the circumstances, Mr. Sum was seized when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft.

“As the State properly concedes, at that time, the deputy did not have a warrant, reasonable suspicion, or any other lawful authority to seize Sum,” wrote Justice Yu. “As a result, Sum was unlawfully seized, and the false name and birth date he gave to the deputy must be suppressed. We therefore reverse the Court of Appeals and remand to the trial court for further proceedings.”

My opinion? Good decision.

In an amicus brief, public defender and civil rights groups argued that law enforcement’s history of discriminating against people of color needs to be reflected in how the law is interpreted. The groups, including the King County Department of Public Defense and the ACLU of Washington, wrote the following:

“Centuries of violence and dehumanizing treatment of people of color have required BIPOC communities to develop survival strategies that demand over-compliance with law enforcement . . . For courts to continue to blind themselves to that reality when evaluating the freedom an individual would feel to unilaterally terminate a law enforcement contact is to further enshrine existing racial disparities into the legal system.”

Please review my Search & Seizure guide and  contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

GR 37 Challenges to Striking a Potential Juror

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

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

BACKGROUND FACTS

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

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

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

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

VOIR DIRE

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

Prosecutor’s “Gorilla Pimp” Comment Admonished by High Court

Gorilla Pimp the skunk ape by seraphonfire on DeviantArt

In State v. McKenzie, the WA Court of Appeals reversed the defendant’s convictions because the prosecutor improperly injected race into the trial and used the term “gorilla pimp” to describe the defendant.

BACKGROUND FACTS

In 2018, the defendant Mr. McKenzie, a 27-year-old Black man, was perusing the dating application Skout when he came across the profile for a white female named “‘Samantha.’”  Samantha’s profile listed her age as 18, and stated “‘Fun Times. My age is wrong. Daddy wanted.’” Samantha was actually a fictional person created by Detective Rodriguez of the Washington State Patrol’s missing and exploited children’s task force. They conduct undercover investigations to find sexual predators in part by using fictional profiles on social media and dating websites. The profile picture Mr. McKenzie viewed was that of an undercover female officer who was at least 22 years old.

The two continued to chat on Skout and then moved to text messaging on their
phones. During the text messaging, Samantha asked Mr. McKenzie if he was interested in being her pimp to which he replied, “Oh nah im not doing all that,” “Thats low. I dont need that & dont have time for all that. If you have a way to get money I support that,” and “But pimping? No thanks missed me with that one.”

Samantha made repeated suggestions that she and Mr. McKenzie meet up. The two discussed where to meet and Mr. McKenzie expressed concern that Samantha was “setting him up.” Later Mr. McKenzie asked Samantha about whether she had condoms. Mr. McKenzie drove from Seattle to Puyallup and waited for Samantha at an agreed meet location for just under 30 minutes. Unbeknownst to Mr. McKenzie, he was under surveillance the entire time he waited. After Mr. McKenzie messaged Samantha that he was giving up and leaving, law enforcement surrounded Mr. McKenzie’s car and placed him under arrest. A search of Mr. McKenzie’s car revealed a box of condoms on the passenger seat.

The State charged Mr. McKenzie with sex offenses to include one count of attempted second degree rape of a child and one count of communication with a minor for immoral purposes. Mr. McKenzie exercised his right to a jury trial.

At trial, Detective Rodriguez took the witness stand. The prosecutor initiated the following
exchange:

Q: Are you familiar with the terms gorilla pimp and romance pimp?
A: Yes.
Q: What are those?
A: A gorilla pimp is someone who is very aggressive. They’re very direct. They’re going to tell you what they want. “This is what you’re going to do.” I’ve had them try to get me or the people they’re victimizing to pay them for that. For them to be sexually exploited, they actually want the victim to pay them for it. As far as a romance pimp, they’re going to come across as your boyfriend or your friend. They’re going to romance you, get you into the situation where then they have control. They can continue to play the romance role or they can switch to a more aggressive pimp or they can go back and forth.
Q: So they’re not mutually exclusive?
A: No.
Q: The romance pimp angle can be used to gain confidence with a young person. And then once you’re engaged with them, the roles can change?
[DEFENSE COUNSEL]: Your Honor, leading.
THE COURT: Sustained.
Q: Can the roles change once they’re engaged?
A: Yes.
Q: Do Mr. McKenzie’s answers about, “I’m not into that. I would treat you right,” all of those kind of things, do they negate the possibility that he is looking to put Sam out?
A: No.

The defense never voiced a specific objection to the gorilla pimp concept. The prosecutor made no further reference to it. A jury found Mr. McKenzie guilty as charged. The court subsequently imposed a standard range sentence of 76.5 months to life in prison. Mr. McKenzie appealed on arguments that the prosecutor engaged in misconduct by injecting the racially charged term “gorilla pimp” into the trial.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reversed the Defendant’s conviction. It reasoned that use of the term “gorilla pimp” by the State was not harmless error beyond a reasonable doubt. The court said that when a prosecutor improperly injects race into a criminal trial, a court will generally reverse the conviction.

“Racist rhetoric has no place in our justice system. It is hurtful, thwarts due process, and undermines the rule of law. ~WA Court of Appeals

The Court discussed the State’s argument that the term used was actually “guerrilla pimp.” However, that argument was unpersuasive to the court, which found the analogy of a “gorilla” to be particularly concerning:

“At this point in our history we should not have to belabor the point that using a gorilla analogy when discussing human behavior, specifically the behavior of a Black man, is clearly racist rhetoric,” said the Court of Appeals. It reasoned that individuals involved in criminal enterprises use racialized language that is sometimes offensive. However, that is no excuse for outsiders to do the same.

“The only purpose served by referencing the gorilla pimp concept was to tap into deepseated racial prejudice by comparing Black human beings to primates. The State cannot prove that this racist rhetoric was harmless beyond a reasonable doubt. We therefore reverse Mr. McKenzie’s conviction.” ~WA Court of Appeals

My opinion? Great decision. The type of racist rhetoric invoked by the Prosecution appears to have especially strong pull. A six-year study of undergraduates at Stanford University and Pennsylvania State University showed young people are swayed by Black-ape associations, even when they claim to know nothing about the historical context of racist simianization. According to this study, undergraduates who were exposed to words associated with apes were more likely to condone the beating of those in police custody when they thought the suspect was Black.

Please contact my office if you, a friend or family member are charged with a crime, especially one involving race or Prosecutorial Misconduct. Hiring an effective and competent defense attorney is the first and best step toward justice.

New Washington State Patrol Trooper Class the ‘Most Diverse’ in the Agency’s History

Governor Murphy Sign Laws In An Effort To Try And Boost Racial Diversity  Among New Jersey Police Departments | New Jersey Public Safety Officers Law  Blog

King5 News reports that the latest class of graduates from the Washington State Patrol Academy (WSP) is the agency’s most diverse.

Of the 44 cadets sworn into service Wednesday, 43% come from populations considered historically underrepresented. Two of the new troopers are women, six are Hispanic, four are Asian, two are Black, and five identified themselves as representing two or more of those groups.

However, it’s reported that the agency still does not reflect the diversity of the state’s population. Not counting the recent graduating class, 90% of WSP’s commissioned officers are male, and 85% are white. That lack of diversity prompted state legislators to pass a law requiring oversight of the agency’s minority hiring practices.

WSP spokesperson Chris Loftis said the agency’s recent class is proof WSP was working on the issue before legislative action.

“We’re really seeing the fruits of our labor,” said Loftis. “It’s targeted recruitment, it’s community engagement, but it’s also increasing the allure and respect for law enforcement.”

My opinion? This is good news. And arrives on other reporting that it’s difficult to hire cadets from diverse backgrounds:

“This is a profession in particular over the course of the last many years that has struggled with regards to community acceptance to some degree as a profession, which has made it a lot more difficult to recruit folks within the diverse communities.” ~WSP Chief John Batiste.

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.

WA State Patrol Lacks Diversity, Seeks Active Recruitment of Minority Officers

Police Officers Explain Why Diversity in Law Enforcement Matters | Rasmussen University

King5 journalist PJ Randhawa reports that diversity in the Washington State Patrol (WSP) has been lacking for years. A new state law is putting pressure on the agency to attract and retain cadets of color.

WSP data shows the majority of state troopers are white men. Department of Justice and state data found diversity in the state patrol has declined. Compared with 2003, the patrol now employs fewer Black, Asian and Native American troopers.

A new state law looks to change the narrative. In March, Gov. Jay Inslee signed a bill that puts pressure on WSP to attract and retain cadets of color. The measure will cost the state patrol $1.3 million. It includes the commission of an independent study into retention and recruitment efforts in addition to setting agency benchmarks and providing legislative oversight of WSP’s progress.

THE PROBLEM IS SYSTEMIC AND BEGINS AT RECRUITING

A 2021 state study into WSP’s retention and recruitment practices showed cadets of color were failing the agency’s psychological evaluation at a higher rate than their white counterparts. And there’s a lot at stake – if you flunk the psychological evaluation, you’re out.

According to data compiled in the report, 36% of white candidates didn’t pass WSP’s psychological evaluation compared to 44% of Latinx candidates, 67% of Asian candidates and 60% of Black candidates who didn’t pass the psychological examination.

Dr. Daniel Clark, WSP’s longtime psychologist, was the man responsible for administering the tests. Clark faced criticism from lawmakers after that 2021 state report showed candidates of color were rejected from the patrol at high rates. The report found, “Every focus group and multiple key executives reported concerns of bias in the psychological evaluation process.”

Clark kept his job. He’s been reassigned at the state patrol and now deals with counseling and training.

THE WSP’S COMMITMENT TO DIVERSITY

Last year, WSP announced they had signed onto the 30×30 pledge, a nationwide effort within police departments to increase representation in all ranks and promote gender equity. According to the WSP, “The ultimate goal of the 30×30 Initiative is to reach 30 percent of women in police recruit classes by 2030 and to ensure policing agencies are truly representative of the jurisdiction the agency serves. While 30×30 focuses on advancing women in policing, these principles are applicable to all demographic diversity, not just gender.”

According to a statement provided by WSP, high vacancy rates across all law enforcement agencies have increased competition for candidates of color. They say they continue to modify their hiring and training practices to eliminate any unintended barriers for candidates of color.

My opinion? I agree with recent studies showing that diversity in law enforcement may improve policing. Compared to white officers, Black and Hispanic officers made far fewer stops and arrests — and used force less often — especially against Black civilians. Also, female officers used less force than their male counterparts. Apparently, de-escalation tactics and a decrease in unnecessary pullovers benefits everyone.

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.

Ban Invasive Policing Technology

On November 2, 2021, Bellingham voters have an opportunity to vote on important initiatives affecting people’s liberty and freedom. Initiative No. 2021-02 concerns the use of facial recognition technology and predictive policing technology.

Face surveillance is the most dangerous of the many new technologies available to law enforcement. This measure would prohibit the City from the following:

  • Acquire or use facial recognition technology.
  • Prohibit the City from contracting with a third party to use facial recognition technology on its behalf.
  • Prohibit the use of predictive policing technology.
  • Prohibit the retention of unlawfully acquired data.
  • Prohibit the use of data, information, or evidence derived from the use of facial recognition technology or predictive policing technology in any legal proceeding.
  • Authorize private civil enforcement actions.

facial recognition system is a technology capable of matching a human face from a digital image or a video frame against a database of faces, typically employed to authenticate users through ID verification services, works by pinpointing and measuring facial features from a given image.

Facial recognition systems are employed throughout the world today by governments and private companies. Their effectiveness varies, and some systems have previously been scrapped because of their ineffectiveness. The use of facial recognition systems has also raised controversy, with claims that the systems violate citizens’ privacy, commonly make incorrect identifications, encourage gender norms and racial profiling, and do not protect important biometric data. These claims have led to the ban of facial recognition systems in several cities in the United States.

According to the ACLU, facial recognition systems are built on computer programs that analyze images of human faces for the purpose of identifying them. Unlike many other biometric systems, facial recognition can be used for general surveillance in combination with public video cameras, And it can be used in a passive way that doesn’t require the knowledge, consent, or participation of the subject.

The biggest danger is that this technology will be used for general, suspicionless surveillance systems. State motor vehicles agencies possess high-quality photographs of most citizens that are a natural source for face recognition programs and could easily be combined with public surveillance or other cameras in the construction of a comprehensive system of identification and tracking.

My opinion? Vote YES on Initiative 2021-02.

The technology itself can be racially biased. Groundbreaking research conducted by scholars Joy Buolamwini, Deb Raji, and Timnit Gebru snapped our collective attention to the fact that yes, algorithms can be racist. Buolamwini and Gebru’s 2018 research concluded that some facial analysis algorithms misclassified Black women nearly 35 percent of the time, while nearly always getting it right for white men. A subsequent study by Buolamwini and Raji at the Massachusetts Institute of Technology confirmed these problems persisted with Amazon’s software.

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

“At The End Of The Day, It’s Race.”

U.S. Racism and Inequality Are Rooted in the Law

The Washington Courts website presented its findings on unequal treatment in the criminal justice system.

According to data collected by the Task Force 2.0: Race and Washington’s Criminal Justice System, bias and the legacy of historically racist laws and practices contribute significantly to racially disproportionate treatment and outcomes in Washington’s criminal justice system.

From more frequent police stops, searches, use of force, arrests, longer sentences, fewer non-prison sentencing alternatives, higher or more frequent fines, and higher rates of deaths at the hands of police, people of color are treated more harshly than White people from the first contact with the justice system.

The Task Force presented their findings to the WA Supreme Court over Zoom on Wednesday, Sept. 29, and released their report to the public. The presentation was broadcast live on TVW and recorded for future viewing.

In addition to gathering data from the many points of contact throughout the justice system, Task Force researchers worked to identify reasons for disparities, often comparing “similarly situated” persons (those with similar crimes and criminal histories) and documenting differential treatment.

“At the end of the day, it’s race. At the end of the day, we see that disproportionalities persist in the criminal justice system.” ~Seattle University School of Law Professor Robert Chang

The Task Force report examines data on policing, prosecutorial decision-making, pre-trial release, sentences, incarceration, Legal Financial Obligations (court fines and fees), driver license suspensions, community supervision and reentry from incarceration, and more. The study also addresses the extensive impacts of contact with the criminal justice system on people’s mental and physical health, families, future employment, housing, and more.

Examples of Task Force findings include:

  • From 2013 to 2020 in Washington state, 253 people were killed by police. Based on each group’s relative population, Black people were killed at a rate 3.6 times greater than that of non-Hispanic White people; Indigenous people were killed at a rate 3.3 times greater; Latinos were killed at a rate 1.3 times greater; and Pacific Islanders were killed at a rate 3.3 times greater.
  • Data from four major Washington cities found that Black persons were 3.9 times to 10.6 times more likely to be subjected to use of force by police than White persons.
  • In fiscal year 2019 felony sentencing for non-drug offenses, Black, Indigenous and other people of color (BIPOC) received significantly longer sentences than White defendants for the two most serious offense levels, and the disproportionality was pronounced for BIPOC defendants with lower criminal history scores.
  • Black persons, Indigenous persons, and Latina/os are sentenced to court fines and fees (Legal Financial Obligations, or ‘’LFOs’’) more frequently and at higher rates than White and Asian persons. Even after controlling for relevant legal factors, Latina/os are sentenced to significantly higher LFOs than similarly situated White defendants.

The Task Force was launched in mid-2020 by the deans of Washington’s three law schools following the death of George Floyd.

The Task Force will release recommendations for action by the end of the year, along with another report from a “task force within a task force” examining the state’s juvenile justice system. Speakers during the presentation pointed to the need for greater transparency and information sharing in all areas of the justice system, the need to examine the role and impacts of incarceration itself, the need for leaders from all branches and levels of government to be involved, and the need to acknowledge that even with neutral laws and policies, implicit bias influences the unequal application of those laws throughout the criminal justice system.

“We need to be intentional . . . Seven decades I’ve been dealing with this. And if we don’t make space for these hard conversations, 70 years from now we’ll be in the same place.” ~Retired King County Superior Court Judge J. Wesley Saint Clair

Washington Supreme Court Chief Justice Steven González, who was involved in the 2010 task force before he joined the Supreme Court, closed the presentation by thanking the presenters and the members of the task force for their ongoing work:

“We regret that this work is still needed, but we recognize that it is.” ~WA Supreme Court Chief Justice Steven González

More background on the work of Task Force 2.0 can be found here.

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

 

Language App Helps Police

LanguageLine Solutions(R) Launches Live Interpreting App

Tacoma police officers are now using a language translation tool to assist during emergency responses. Q13 Fox News reports that all officers have access to Language Line Solutions, a translator app on their phones.

In the past, officers used neighbors or even family members, like kids, to translate.

Lydia Zepeda, who is a member of the Commission on Immigrant and Refugee Affairs, worked with the Tacoma Police Department to introduce a better way for officers to help people in crisis.

“A lot of these people are experiencing domestic violence, they may have been sexually assaulted, or they may be some other victim of a crime and we certainly don’t want children to have to interpret for something like this.” ~Lydia Zepeda, Commission on Immigrant and Refugee Affairs.

“Language Line Solutions allows the Tacoma Police Department to offer equitable services to all members of the community,” said officer Wendy Haddow with the Tacoma Police Department.

The app offers translators for 240 different languages with voice options, and for some languages, video chat options. When you open the app, you can scroll or use the search feature to find the language you are looking for.

“This app is really, really important,” said Zepeda. She says this new tool, gives people going through an emergency an easier way to be heard, and get the help they need. She says it also protects children from having to be involved. “It minimizes trauma.”

My opinion? The language line app is an excellent use of police resources which serves everyone. In an emergency, getting information quick is vital. However, challenges arise when responding officers and the caller do not speak the same language.

Language barriers are the source of much litigation. In State v. Prok, the WA Court of dismissed a DUI case against a Cambodian DUI defendant because the police officer failed to advise Mr. Prok of his right to counsel in language easily understood. By itself, State v. Prok assisted defense attorneys who argued Motions to Suppress evidence based on language barriers between police and defendants.

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.