Category Archives: Race & Law

“Furtive Movements”

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Drug Recognition Expert, Evidence, felony, Furtive Movements, Privacy, Race & Law, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Weyand, the WA Supreme Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. Walking quickly while looking up and down the street at 2:40 a.m. is an innocuous act, which cannot justify intruding into people’s private affairs.

BACKGROUND FACTS

On December 22, 2012, at 2:40 in the morning, Corporal Bryce Henry saw a car parked near 95 Cullum Avenue in Richland, Washington, that had not been there 20 minutes prior. The area is known for extensive drug history. Corporal Henry did not recognize the car and ran the license plate through an I/LEADS (Intergraph Law Enforcement Automated System) database. However, that license plate search revealed nothing of consequence about the vehicle or its registered owner.

After parking his car, Corporal Henry saw Weyand and another male leave 95 Cullum. As the men walked quickly toward the car, they looked up and down the street. The driver looked around once more before getting into the car. Weyand got into the passenger seat. Based on these observations and Corporal Henry’s knowledge of the extensive drug history at 95 Cullum, he conducted a Terry stop of the car.

After stopping Weyand, Corporal Henry observed that Weyand’s eyes were red and glassy and his pupils were constricted. Corporal Henry is a drug recognition expert and believed that Weyand was under the influence of a narcotic. When Corporal Henry ran Weyand’ s name, he discovered an outstanding warrant and arrested Weyand. Corporal Henry searched Weyand incident to that arrest and found a capped syringe. Corporal Henry advised Weyand of his Miranda3 rights, and Weyand admitted that the substance in the syringe was heroin that he had bought from a resident inside 95 Cullum.

PROCEDURAL HISTORY

The State charged Weyand with one count of unlawful possession of a controlled substance. Weyand moved to suppress all evidence and statements under Criminal Rules (CrR) 3.5 and 3.6 and to dismiss the case against him. Weyand argued that the officer did not have sufficient individualized suspicion to conduct the investigatory stop.

After the hearing, the court concluded that the seizure was a lawful investigative stop. According to the court, Corporal Henry had reasonable suspicion to believe that Weyand was involved in criminal activity. The court found Weyand’s case distinct from State v. Doughty, because in this case there was actual evidence of drug activity at, as well as known drug users frequenting, 95 Cullum.

The court additionally found that Weyand knowingly, intelligently, and voluntarily waived his Miranda rights; thus, all post-Miranda statements were admissible at trial. Weyand waived his right to a jury trial and agreed to submit the case to a stipulated facts trial. Finding that Weyand possessed a loaded syringe that contained heroin, the court found Weyand guilty of unlawful possession of a controlled substance.

Weyand appealed, and the Court of Appeals affirmed the conviction. It reasoned that the totality of the circumstances, coupled with the officer’s training and experience, showed that the officer had a reasonable, articulable suspicion that justified the stop. Those circumstances included “the long history of drug activity at 95 Cullum, the time of night, the 20 minute stop at the house, the brisk walking, and the glances up and down the street.”

LEGAL ISSUE

Whether the specific facts that led to the Terry stop would lead an objective person to form a reasonable suspicion that Weyand was engaged in criminal activity.

COURT’S ANALYSIS & CONCLUSIONS

The Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. It reasoned that under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, an officer generally may not seize a person without a warrant. There are, however, a few carefully drawn exceptions to the warrant requirement. The State bears the burden to show that a warrantless search or seizure falls into one of the narrowly drawn exceptions.

One of these exceptions is the Terry investigative stop. The Terry exception allows an officer to briefly detain a person for questioning, without a warrant, if the officer has reasonable suspicion that the person is or is about to be engaged in criminal activity. An officer may also briefly frisk the person if the officer has reasonable safety concerns to justify the protective frisk.

The Court found that the totality of the circumstances did not justify a warrantless seizure. It reasoned that in order to conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop. To evaluate the reasonableness of the officer’s suspicion, Courts look at the totality of the circumstances known to the officer. The totality of circumstances includes the officer’s training and experience, the location of the stop, the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion on the suspect’s liberty. The suspicion must be individualized to the person being stopped.

“Here, the trial court’s decision rested primarily on evidence that 95 Cullum was a
known drug location,” said the Court. “However, Corporal Henry did not observe current activity that would lead a reasonable observer to believe that criminal activity was taking place or about to take place in the residence.”

Furtive Movements

Also, the Court reasoned that reliance on ‘furtive movements’ as the basis for a Terry stop can be problematic. “Case law has not precisely defined such movements, and courts too often accept the label without questioning the breadth of the term.” It explained that ‘furtive movements’ are vague generalizations of what might be perceived as suspicious activity which does not provide a legal ( or factual) basis for a Terry stop.”

The Court quoted Judge Richard Posner in recognizing that “furtive movements,” standing alone, are a vague and unreliable indicator of criminality:

“Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”

With that, the WA Supreme Court reasoned that simply labeling a suspect’s action a “furtive movement,” without explaining how it gives rise to a reasonable and articulable suspicion, is not sufficient to justify a Terry stop. Furthermore, reasoned the Court, police cannot justify a suspicion of criminal conduct based only on a person’s location in a high crime area:

“It is beyond dispute that many members of our society live, work, and spend their waking hours in high crime areas, a description that can be applied to parts of many of our cities. That does not automatically make those individuals proper subjects for criminal investigation.”

Consequently, the WA Supreme Court reversed the Court of Appeals and hold that walking quickly and looking around, even after leaving a house with extensive drug history at 2:40 in the morning, is not enough to create a reasonable, articulable suspicion of criminal activity justifying a Terry stop.

My opinion? Excellent decision. I’m very impressed the Court addressed the term “furtive movements” and put it in perspective. Law enforcement officers regularly use this catch-phrase to describe suspicious behavior allowing them stop/search/seize people. Although officer safety is a primary concern and a very good reason to search people who are already in police custody and making “furtive movements” in the presence of officers, it cannot be a basis for stopping and searching people who are simply going about their business walking down the street. Great decision.

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

Race-Based Jury Selection

Bellingham Defense Attorney, Constitutional Rights, Jury Selection, Jury Trial, misdemeanor, Race & Law, Resisting Arrest, Skagit County Criminal Defense, Uncategorized, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In City of Seattle v. Erickson, the WA Supreme Court held that the Prosecutor’s peremptory strike of a minority juror was a prima facie showing of racial discrimination requiring a full analysis under Batson v. Kentucky.

BACKGROUND FACTS

In 2013, Matthew Erickson, a black man, was charged in Seattle Municipal Court with Unlawful Use of a Weapon and Resisting Arrest. After voir dire, the City of Seattle (City) exercised a peremptory challenge against tjuror #5, who was the only black juror on the jury panel. After the jury was empaneled and excused from the courthouse with the rest of the venire, Erickson objected to the peremptory challenge, claiming the strike was racially motivated. The court found that there was no prima facie showing of racial discrimination and overruled Erickson’s objection.

Erickson was convicted on both counts.

Erickson appealed the municipal court’s decision to King County Superior Court. The superior court affirmed the municipal court, finding that the circumstances surrounding the challenge did not raise any inference that the juror was stricken because of his race. The judge did not address whether Erickson’s motion was timely.

ISSUES

The WA Supreme Court granted review of Erickson’s appeal on the following issues:

1. Did Erickson waive his right to a Batson challenge when he objected after the jury was empaneled and both the jury and venire excused?

2. Did the trial court error in finding that Erickson did not make a prima facie showing of racial discrimination when the City struck juror #5?

BATSON V. KENTUCKY: THE LEGAL BACKGROUND ON RACE-BASED PEREMPTORY STRIKES

For those who don’t know, in Batson v. Kentucky, the United States Supreme Court created a 3-step process for enforcing the constitutional rule against excluding a potential juror based on race. First, the defense must show that the circumstances at trial raise an inference of discrimination. Second, the prosecutor must give a nonracial reason for the strike. Third, the court decides if the prosecutor intentionally discriminated against the juror because of race. The decision was made to stop the unfair practice of race-based peremptory strikes of qualified minority jurors because at that time, prosecutors could easily mask their efforts to exclude racial minorities from jury service.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court ruled that Erickson did not waive His Right to a Batson challenge when he objected to the striking of a juror after the jury was empaneled but before testimony was heard. It reasoned that a number of federal courts also allow Batson challenges after the jury has been sworn. Read together, the case law has adopted rules requiring that a Batson challenge be brought at the earliest reasonable time while the trial court still has the ability to remedy the wrong.

“These cases recognize that judges and parties do not have instantaneous reaction time, and so have given both trial courts and litigants some lenience to bring Batson challenges after the jury was been sworn,” said the Court. “This is in line with our own jurisprudence.”

The Court further stated that objections should generally be brought when the trial court has the ability to remedy the error, and allowing some challenges after the swearing in of the jury does not offend that ability.

“Although the timing was not ideal, the Batson challenge was raised when the trial court still had an opportunity to correct it,” said the Court. “So even though Erickson brought his Batson challenge after the jury was empaneled, the trial court still had adequate ability to remedy any error. Therefore, Erickson made a timely Batson challenge.”

Second, the WA Supreme Court Court ruled that the trial court did, in fact, error in finding that Erickson did not make a prima facie showing of racial discrimination when the Prosecutor struck juror #5.

Here, and in bold strokes, the Court changed how Batson is applied in Washington so that striking a juror who is the only member of a cognizable racial group automatically triggers a full Batson analysis by the trial court:

“The evil of racial discrimination is still the evil this rule seeks to eradicate,” the court explained, writing that “this alteration provides parties and courts with a new tool, allowing them an alternate route to defend the protections espoused by Batson. A prima facie case can always be made based on overt racism or a pattern of impermissible strikes. Now, it can also be made when the sole member of a racially cognizable group is removed using a peremptory strike.”

With that, the WA Supreme Court carved the following bright-line rule adopted from State v. Rhone:

“We hold that the trial court must recognize a prima facie case of discriminatory purpose when the sole member of a racially cognizable group has been struck from the jury. The trial court must then require an explanation from the striking party and analyze, based on the explanation and the totality of the circumstances, whether the strike was racially motivated.”

In other words, the peremptory strike of a juror who is the only member of a cognizable racial group on a jury panel does in fact, constitute a prima facie showing of racial motivation. Also, the trial court must ask for a race-neutral reason from the striking party and then determine, based on the facts and surrounding circumstances, whether the strike was driven by racial reasons.

The WA Supreme Court reverse Erickson’s conviction and remanded his case back to the trial court for a new trial.

My opinion? I’m very pleased. I wrote about unlawful race-based peremptory strikes in my blog on State v. Saintcalle; a WA Supreme Court case having similar dynamics, peremptory strikes and Batson challenges to the case at hand. In that post, I was very disappointed that the WA Supreme Court failed to fix a systemic problem of Prosecutors exercising race-based peremptory strikes during jury selection.

Finally, the WA Supreme Court has become more proactive in stopping this unfair, unconstitutional practice. It’s not enough for Prosecutors to give utterly superficial reasons for striking minority jurors when the real reason for striking them is blatantly staring us in the face. Now, and finally, Prosecutors must prove that their decision to strike is not race-based. This subtle, yet oh-so-important shift in perspective effectively addresses what’s really happening during jury selection and makes a solution toward preventing race-based peremptory strikes. Excellent.

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.

Life Sentences Increase

Bellingham Defense Attorney, Drug Offenses, Prison, Race & Law, Sentencing, Studies, Trump Administration, Whatcom County Criminal Defense, , ,

Article by Samantha Michaels of Mother Jones discusses how one out of every nine prisoners in the United States is currently serving a life sentence—a record high—even as the overall prison population has fallen.

That’s according to a depressing new report by the Sentencing Project, an advocacy group that’s been tracking life sentences since 2004. Almost 162,000 people are now serving life behind bars, up from 132,000 about a decade ago and 34,000 in 1984.

To put that in perspective, for every 100,000 people in America, 50 have been locked up for life. That’s roughly the total incarceration rate—including inmates whose sentences are just a few months—in Scandinavian countries like Denmark, Sweden, and Finland.  And it doesn’t even account for the tens of thousands of Americans handed sentences of 50 years or more, which are considered “de facto life sentences,” says Ashley Nellis, a senior research analyst at the Sentencing Project who co-authored the report.

What’s driving the uptick? It’s not a rise in violent crime or murder—both have dropped substantially since the mid-1990s. Nor is it an increase in the number of criminals behind bars: A majority of states saw declining overall prison populations from 2010 to 2015.

According to Michaels, the continuing rise in lifers is a legacy of three-strikes laws and mandatory minimum sentencing.

“It may also be related to the shift away from capital punishment,” she says. She further elaborates that in some states that no longer allow executions, elected officials like governors and prosecutors have championed life-without-parole sentences—which account for the biggest increase in life sentences nationally—as a way to appear tougher on crime.

“Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience,” Connecticut Gov. Dannel Malloy, a Democrat, said in 2012 when his state abolished the death penalty. But these lengthy punishments probably aren’t keeping the public safer. “The impulse to engage in crime, including violent crime, is highly correlated with age,” the Sentencing Project notes. “Most criminal offending declines substantially beginning in the mid-20s and has tapered off substantially by one’s late 30s.”

The biggest losers of all this? Minorities. Of all the lifers and de facto lifers in the country, almost half are African American. What’s more, 12,000 of the total are locked up for crimes they committed as kids, though some are eligible for release thanks to recent court decisions.

In 2010, the Supreme Court ruled that life-without-parole sentences are unconstitutional for juveniles who didn’t commit homicide. In 2012, the justices went further, saying that mandatory life-without-parole sentences for kids, including those who committed homicide, are also unconstitutional. Nineteen states and DC now ban any kind of life-without-parole sentence for juveniles.)

Finally, according to Michaels, it’s important to remember that many of the prisoners serving these long sentences never actually hurt anyone: Two-thirds of lifers or de facto lifers in the federal system committed nonviolent crimes—and one-third of them are serving time for drug crimes.

With Attorney General Jeff Sessions at the helm of the Justice Department alongside his team of tough-on-crime advisers, there’s a good chance that won’t be changing anytime soon.

My opinion? I couldn’t agree more.

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.

Inmates Paid $1 Per Day

Bellingham Defense Attorney, Constitutional Rights, Detention, Immigration, Jail, Race & Law, Skagit County Criminal Defense, Thirteenth Amendment, Trump Administration, Whatcom County Criminal Defense, , ,

Article from Andy Hurst of KUOW discusses a class action lawsuit says the company running an immigration detention center in Colorado is violating federal anti-slavery laws.

Interestingly, this same company runs the Northwest Detention Center in Tacoma, which is the scene of an expanding hunger strike.

Inmates joining the law suit are paid $1 per day for voluntary work. They want improved quality of food, improved medical care and higher paying jobs. The detention center is run by a private company, GEO Group, which operates under a contract with U.S. Immigration and Customs Enforcement. The group Latino Advocacy said more than 750 people at the Tacoma facility were refusing meals as of Wednesday morning.

Meanwhile, detainees at an Aurora, Colorado, detention center run by GEO Group have filed a class-action lawsuit. It claims the detention center violates federal anti-slavery laws.

Attorney Nina Disalvo is an attorney represents the detainees in Colorado. She said it’s illegal to pay them $1 a day.

“It’s not the market wage that GEO would have to pay if it were absorbing the real cost of running an immigrant detention center,” Disalvo said. “If GEO actually had to hire janitorial staff to clean its facility, it would have to pay that staff a market wage. And it’s not paying the detainees a market wage for this work.”

Disalvo said some of her clients were forced to do janitorial work and clean large areas within the facility without pay. “If they did not do so, they were threatened with or placed in solitary confinement,” Disalvo said. “Our clients allege that forcing people to work under threat of solitary confinement constitutes forced labor under the federal forced labor laws.”

GEO Group has denied the lawsuit’s allegations. A spokesperson for Immigration and Customs enforcement says the agency does not comment on pending litigation. Virginia Kice, ICE spokeswoman, confirmed that detainees at the Northwest Detention Center in Tacoma earn $1 per day for voluntary work. She said about 25 percent of detainees participate in the program, and that no detainees perform unpaid work at the facility.

The Colorado lawsuit could have implications for the Northwest Detention Center. Northwestern University political science professor Jacqueline Stevens said that if the plaintiffs prevail, GEO Group will need to pay out up to hundreds of millions of dollars in back wages and penalties.

“This could mean the end of government contracts with the private prison industry for housing people held under immigration laws, and the return to more sensible policies,” Stevens said.

My opinion?

I’m no fan of private prisons.

For those who don’t know, a private prison or for-profit prison is a place in which individuals are physically confined or incarcerated by a third party that is contracted by a government agency. Private prison companies typically enter into contractual agreements with governments that commit prisoners and then pay a per diem or monthly rate, either for each prisoner in the facility, or for each place available, whether occupied or not. Such contracts may be for the operation only of a facility, or for design, construction and operation.

According to the ACLU, private prisons have been linked to numerous cases of violence and atrocious conditions. Also, according to the Bureau of Justice Statistics, for-profit companies were responsible for approximately 7 percent of state prisoners and 18 percent of federal prisoners in 2015 (the most recent numbers currently available).

While supporters of private prisons tout the idea that governments can save money through privatization, the evidence is mixed at best—in fact, private prisons may in some instances cost more than governmental ones.

Finally, it appears that immigrants are the ones filling these detention centers. U.S. Immigration and Customs Enforcement reported that in 2016, private prisons held nearly three-quarters of federal immigration detainees. In light of today’s anti-immigrant presidential administration, it’s no coincidence that private stocks for U.S. prisons have increased 100% since Trump’s election.

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.

Race Bias Video for Jurors

Bellingham Defense Attorney, Constitutional Rights, Race & Law, Sixth Amendment, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

The King County Bar Association Bulletin reported recent efforts to tackle the problem of race bias in juries. In U.S. District Court Produces Video, Drafts Jury Instructions on Implicit Bias, Judge Theresa Doyle of the King County Superior Court discussed how our federal courts created an instructional video on race bias to be viewed by potential jurors.

RACE BIAS 

For those who don’t know, racial biases are a form of implicit bias, which refers to the attitudes or stereotypes that affect an individual’s understanding, actions, and decisions in an unconscious manner. These biases, which encompass unfavorable assessments, are often activated involuntarily and without the awareness or intentional control of the individual. Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness.

“We all have biases,” writes Judge Doyle in her article. “These unconscious, instantaneous, almost automatic judgments can help us get through the day. However, when those unconscious biases stereotype a person because of race, gender, national origin, sexual orientation, age or other qualities, they are no longer helpful but harmful to the right to a fair trial.”

She discusses how results from the Implicit Association Test (IAT) and other research show a high and nearly universal preference of whites over blacks. Even with African-American test-takers, 40 percent showed a pro-white preference. “Jurors bring these biases to court when they report for jury service,” said Judge Doyle. “However, where race is never mentioned but lurks in the background, e.g., where a party in a case . . . is a person of color, that racial or ethnic bias is most likely to rear its ugly head.”

BACKGROUND TO THE CREATION OF THE VIDEO

Judge Doyle described how in 2015, then-Chief Judge Marsha Pechman of the Federal U.S. District Court of Western Washington appointed a committee to develop an answer to the question of what should courts do about the biases and prejudices that jurors bring with them to court.

Apparently, at the same time, the federal defenders were conducting a criminal trial. During jury selection, the federal defenders showed a videotape that dealt with potential race bias. After the trial was concluded, the committee spoke to Judge Jones, the federal prosecutors, defense lawyers and some of the jurors.

Judge Doyle said that based on all of the committee work, including the interviews, the committee developed a script and worked with a production company to produce a video presentation on the nature and impact of implicit or unconscious bias.” In February, after nearly two years of work, the video was finished and the committee had developed pattern jury instructions on implicit bias for use in criminal cases; which were adopted by the Court. “The instructions incorporate language regarding unconscious bias into a preliminary instruction, the witness credibility instruction, and a closing instruction,” said Judge Doyle.

THE VIDEO

A link to the video and jury instructions is here. It features Judge Coughenour, defense attorney Jeffery Robinson, and Annette Hays, acting U.S. attorney for the Western District of Washington. “These three explain how such automatic preferences and biases can influence our perceptions and decisions, threatening the constitutional right to fair trial and due process, and jeopardizing public confidence in the legal system,” says Judge Doyle. “Research shows that awareness of unconscious biases is key to minimizing their effects on perceptions and decision making.”

My opinion? My hat’s off to the judges and attorneys involved in the creation of this video. During jury selection, I’ve struggled to introduce these controversial and galvanizing topics. Talking about race is a difficult needle to thread. It can raise suspicion that defendants are trying to “play the race card” on behalf of my Client, which is exactly untrue: I’m trying to take the “race card” off the table. Fortunately, this video – a tool from the courts, and not an advocate – educates the jury and approaches the subject of race bias from a more objective place.

Kudos to the federal courts. Good work. I’m proud of you.

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.

“No-Impeachment Rule” vs. Race Bias

"No-Impeachment" Rule, Bellingham Defense Attorney, Constitutional Rights, Jury Trial, Race & Law, Sex Crimes, Sixth Amendment, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , ,

In Pena-Rodriguez v. Colorado, the U.S. Supreme Court held that when a juror says he or she relied on racial stereotypes to convict a criminal defendant, the Sixth Amendment requires that the “No-Impeachment Rule” give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

BACKGROUND FACTS & PROCEDURAL HISTORY

In 2007, in the bathroom of a Colorado horse-racing facility, the defendant  Peña-Rodriguez allegedly sexually assaulted two teenage sisters. The girls told their father and identified  Peña-Rodriguez as an employee of the racetrack. The police located and arrested him. Each girl separately identified  Peña-Rodriguez as the man who had assaulted her.

At trial, a Colorado jury convicted the defendant  Peña-Rodriguez of Harassment and unlawful sexual contact. During deliberations, a juror named “H. C.” had expressed anti-Hispanic bias toward the defendant and his alibi witness. Defense Counsel, with the trial court’s supervision, obtained affidavits from the two jurors who witnessed and heard the racially biased statements from juror “H.C.”

Defense Counsel motioned for a new trial on the grounds of juror bias. Although the trial court acknowledged racial bias, it denied Defense Counsel’s motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying as to statements made by other jurors during deliberations. The case made it’s way to the U.S. Supreme Court

ANALYSIS & CONCLUSIONS

The U.S. Supreme Court held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

Curing Racial Bias

The Court began by saying that the Civil War Amendments created the imperative to purge racial prejudice from the courts. It explained that ever since then, time and again, this Court has enforced the Constitution’s guarantee against state-sponsored racial discrimination in the jury system. The Court has interpreted the Fourteenth Amendment to prohibit the exclusion of jurors based on race, struck down laws and practices that systematically exclude racial minorities from juries, ruled that no litigant may exclude a prospective juror based on race and held that defendants may at times be entitled to ask about racial bias during voir dire.

The Court further reasoned this specific case lies at the intersection of the Court’s decisions endorsing the “No-Impeachment Rule” and the need to eliminate racial bias in the jury system. Those lines of precedent need not conflict. Moreover, the Court said racial bias implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.

ER 606(b): The “No-Impeachment” Rule

Under ER 606(b), a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

However, exceptions exist. For example, a juror may testify about whether (a) extraneous prejudicial information was improperly brought to the jury’s attention; (b) an outside influence was improperly brought to bear on any juror; or (c) a mistake was made in entering the verdict on the verdict form.

“This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and those seeking to eliminate racial bias in the jury system,” said the Court. “Racial bias . . . implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.”

With that in mind, the Court reasoned that a constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after a verdict has been entered—when necessary to prevent a systemic loss of confidence in jury verdicts; which is “a confidence that is a central premise of the Sixth Amendment trial right.”

The Test

The Court reasoned that before the “No-Impeachment” Rule can be set aside, there must be a threshold showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. “To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.”

The Court explained that whether the threshold showing has been satisfied depends on the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence. In constructing this rule, the Court said that standard and existing safeguards may prevent racial bias in jury deliberations, including careful voir dire and a trial court’s instructions to jurors about their duty to review the evidence, deliberate together, and reach a verdict in a fair and impartial way, free from bias of any kind.

With that, the U.S. Supreme Court reversed Mr. Peña-Rodriguez’s conviction and remanded the case back to the trial court for further proceedings.

My opinion? Great decision. This case represents a substantial step toward eliminating racial bias in our courtrooms. Even better, this decision is consistent with pre-existing Washington law under Seattle v. Jackson.

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.

The Most Charged Crime

ACLU, Bellingham Defense Attorney, Driving While License Suspended/Revoked, Due Process, misdemeanor, Race & Law, Search and Seizure, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

Apparently, the most commonly charged crime in Washington State – Driving While License Suspended in the Third Degree (DWLS III)- shouldn’t be a crime at all, the state chapter of the American Civil Liberties Union argues in a new report.

In “Driven to Fail: The High Cost of Washington’s Most Ineffective Crime – DWLS III” the report describes the costs of enforcing this law, explores how it burdens individuals and communities, and calls for policies that address the harm of driving with a suspended license without criminalizing it. According to the ACLU, taxpayers spend more than $40 million a year to prosecute cases of DWLS III.

“Not every social problem needs to be treated as a crime,” said Mark Cooke, the ACLU of Washington’s Campaign for Smart Justice Policy Director. “DWLS III enforcement costs taxpayers millions of dollars, yet does little to improve public safety. The crime is largely punishing people for being poor, not because they are scofflaws or dangerous drivers,” said Cooke.

Typically, a DWLS III charge comes about this way: A driver receives a ticket for a moving violation (such as speeding or rolling through a stop sign) and for various reasons does not follow through by paying the ticket or showing up in court to contest it. Hundreds of thousands of people in Washington have had their license suspended for not responding to a ticket for a moving violation. Those who continue to drive once their license is suspended may be arrested and charged with DWLS III.

The report estimates that Washington taxpayers have spent more than $1.3 billion enforcing this crime between 1994 and 2015. These costs stem from the filing of nearly 1.5 million DWLS III criminal charges, resulting in nearly 900,000 convictions. In 2015, there were nearly 40,000 DWLS III charges filed, costing taxpayers $42,199,270. The report also shows that the law is applied unequally across the state and disproportionately impacts people of color, the young, and the poor.

The report recommends that the crime of DWLS III should be taken off the books. Short of that, law enforcement, prosecutors and courts can exercise their inherent discretion and treat DWLS III as a civil offense and offer relicensing programs. Civil remedies and relicensing can be more effective and use fewer criminal justice resources. The data in the report also shows that some jurisdictions, such as the cities of Yakima and Seattle, have started to treat DWLS III as a non-criminal offense.

My opinion? It’s no mystery that DWLS III allows police to arrest people with suspended licenses. However, most don’t know that it allows police to search people’s vehicles after arrest.  Therefore, any contraband, guns or other illegal items found in people’s cars can be lawfully seized.

Additionally, the defendant will face unlawful possession charges for whatever contraband found during the search. In my opinion, this is the essence of an unlawful pretextual search. And for that reason, DWLS III should be a civil infraction which circumvents the need for arrest and searches. It should not be a crime.

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.

ACLU Proposes New Jury Selection Court Rule

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The Washington Supreme Court is considering a new court rule which would effectively end racial bias in jury selection.

Proposed General Rule 36 (“GR 36”) is proposed by the American Civil Liberties Union (ACLU), and is meant to protect Washington jury trials from intentional or unintentional, unconscious, or institutional bias in the empanelment of juries.

BACKGROUND 

In State v. Saintcalle, the Washington State Supreme Court expressed concerns that the federal Batson v. Kentucky test fails to protect potential minority jurors from racial bias during jury selection; specifically, the Prosecutor’s use of peremptory challenges to strike them.

The ACLU believes, however, that Batson has failed to adequately protect potential jurors and the justice system from biased use of peremptories. In proposing its new rule, the ACLU deftly cites and relies upon State v. Saintcalle, a Washington State Supreme Court case which admits that Batson was failing to end racial discrimination in jury selection. The  Saintcalle Court recognized there was ample data demonstrating that racial bias in the jury selection process remained “rampant”:

“Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection.  In part, this is because Batson recognizes only “purposeful discrimination,” whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”

Saintcalle, 178 Wn.2d at 36.

In addition to the WA Supreme Court’s Saintcalle, the ACLU also argues that legal scholars have also long noted Batson’s failure to effectively eradicate discrimination in peremptory challenges.

THE “OBJECTIVE-OBSERVER” STANDARD

The ACLU proposes that GR 36 addresses this problem by employing a test that utilizes an objective-observer standard.  Apparently, the trial court would invalidate a peremptory strike if an objective observer could find that race or ethnicity was a factor for a peremptory challenge.  GR 36 also gives trial courts the necessary latitude to protect the justice system from bias by granting courts the freedom to raise objections to a peremptory strike sua sponte.  It would also bring greater diversity to juries, so that juries in Washington are more representative of the communities they serve.[12]  The rule would also improve the appearance of fairness and promote the administration of justice.

My opinion? I hope GR 36 passes. The Washington State Supreme Court has the flexibility to “extend greater-than-federal Batson protections” through its rule-making authority. Also, other states have adopted court rules dealing with the Batson issue.

GR 36 preserves the use of peremptory challenges as part of the right to a jury trial while at the same time addressing racial bias in jury selection.  Thankfully, the rule also provides guidance to the judiciary and attorneys about how to apply the rule. By adopting this rule, Washington will ensure that its justice system is not improperly tainted by bias, protect Washingtonians from discrimination, ensure diversity in juries, and address systemic, institutional, and unintentional racism in jury selection.

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

Exonerations On the Rise

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News reporters Alanna Durkin Richer  and Curt Anderson of the Associated Press wrote an article describing how last year, 68 out of 157 exonerations were cases in which the defendant pleaded guilty. In Trial or Deal? Some Driven to Plead Guilty, Later Exonerated the article describes the difficult dilemma of many defendants in the criminal justice system: either accept the Prosecutor’s plea offer or risk facing much harsher consequences if found guilty at trial.

Apparently, more than 300 of the more than 1,900 people who have been exonerated in the U.S. since 1989 pleaded guilty, according to an estimate by the National Registry of Exonerations. The registry is maintained by the University of Michigan Law School using public information, such as court documents and news articles.

Last year, 68 out of 157 exonerations were cases in which the defendant pleaded guilty, more than any previous year. The numbers reflect an overwhelmed criminal justice system with public defenders taking more cases than they can handle; as well as court officials who try saving the government money with plea bargains compared with costly trials.

The data is even more daunting. Last year, more than 97 percent of criminal defendants sentenced in federal court pleaded guilty compared with about 85 percent more than 30 years ago, according to data collected by the Administrative Office of the U.S. Courts. The increase in guilty pleas has been a gradual rise over the last three decades.

No one knows exactly how many innocent people are behind bars for pleading guilty. Sociologists have estimated that between 2 and 8 percent of people who plead guilty are in fact innocent.

The article emphasized how defendants who were exonerated after pleading guilty often have prior criminal records and come from poor backgrounds and are not well-educated. They’re typically represented by public defenders juggling dozens of cases in a day.

Many exonerees were cleared of wrongdoing by taking a new look at DNA evidence in blood or other body fluids, according to the University of Michigan database. Some were the victims of prosecutorial misconduct, while shoddy police work was to blame in other cases — such as a mistaken FBI hair analysis or falsified fingerprint evidence. Some falsely confessed because of improper interrogation techniques while others maintained their innocence throughout.

Making the matter worse, it’s not just prosecutors and defense attorneys who seek to cut plea deals. The article said many judges prefer that route, too. Judges who resolve cases rather than let them languish tend to be seen as more successful. Similarly, explained the article, prosecutors who close cases tend to rise faster in their careers.

My opinion? People facing criminal charges MUST seek experienced defense counsel to defend their rights, investigate the facts, interview witnesses, argue pretrial motions, put their clients in the best light possible and conduct an active; fair trial when necessary.

Pleas contact my office as soon as possible if you, a friend or family member is facing criminal charges. The epidemic of increased exonerations due to injustice in our courts as well as our incoming administration’s trampling of individual rights shows a growing need for competent representation. Put simply, defendants should not plead guilty to criminal charges they are not guilty of.

Trump On Crime

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Like it or not, Donald Trump won.

Criminal defense attorneys serving their clients must survey the aftermath and ponder how Mr. Trump’s administration approaches issues of criminal justice. What is Trump’s stance on the “War on Drugs?” How does his stance embrace the growing legalization of marijuana among the States? How does Mr. Trump view the Fourth Amendment’s protections against unlawful searches and seizures? How does Trump view the discord between police and communities of color? Will Trump’s administration seek the immediate deportation of illegal immigrants who commit crimes? How does he feel about the death penalty? These issues – and many others – affect many defendants facing criminal charges.

If the best predictor of future behavior is past behavior, we look no further than Mr. Trump’s comments over the years; especially his comments during his campaign.

THE WAR ON DRUGS: 1990 & 2015

In 1990, Trump argued that the only way to win the War on Drugs was to legalize drugs and use the tax revenue to fund drug education programs. As he put it, “You have to take the profit away from these drug czars.” In his 2000 book,The America We Deserve, he stated that he’d never tried drugs “of any kind.”

Fast-forward 25 years, and now Trump is opposed to legalization. “I say it’s bad,” he told the crowd at the Conservative Political Action Conference in June, in response to a question about Colorado’s legal weed. “Medical marijuana is another thing, but I think recreational marijuana is bad. And I feel strongly about that.” Regarding states’ rights, Trump said, “If they vote for it, they vote for it. But they’ve got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent.”

Source: On the Issues: Donald Trump on Drugs.

Apparently, Trump opposes recreational marijuana and endorses medical marijuana. Unfortunately, his stances can become problematic for states like Washington, Colorado and a handful of others which have already passed initiatives allowing its citizens to possess small amounts of marijuana for recreational purposes. Will Trump’s administration reverse these State initiatives? Will Trump’s administration violate federal court opinions which have slowly de-prioritized federal prosecutions of marijuana cases in states which have legalized marijuana? How will drug prosecutions and/or convictions under Trump’s administration affect citizens receiving federal benefits to include welfare, social security and financial aid?

Only time will tell.

CRIME, THE 4TH AMENDMENT AND THE RACIAL DIVIDE BETWEEN POLICE AND COMMUNITIES OF COLOR.

Trump’s recent comments at the First Presidential Debate at Hofstra University, Sept. 26, 2016, moderated by Lester Holt of NBC News gives telling insights on these issues.

Q: What should be done about crime?

TRUMP: “Stop and frisk worked very well in New York. It brought the crime rate way down. You take the gun away from criminals that shouldn’t be having it. We have gangs roaming the street. And in many cases, they’re illegal immigrants. And they have guns. And they shoot people. And we have to be very vigilant. Right now, our police, in many cases, are afraid to do anything. We have to protect our inner cities, because African-American communities are being decimated by crime.”

Q: “Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.”

TRUMP: “No, you’re wrong. Our new mayor refused to go forward with the case. They would have won on appeal. There are many places where it’s allowed.”

Q: “The argument is that it’s a form of racial profiling.”

TRUMP: “No, the argument is that we have to take the guns away from bad people that shouldn’t have them. You have to have stop-and-frisk.”

Some background information and “fact-checking” is necessary to understand this discussion.

Recently, in Floyd v. City of New York, U.S. District Court Judge Shira A. Scheindlin ruled that New York City police violated the U.S. Constitution in the way that it carried out its stop-and-frisk program, calling it “a form of racial profiling” of young black and Hispanic men. Apparently, there were 4.4 million stops made by New York City police between January 2004 and June 2012, and 83 percent of them were made of blacks and Hispanics — even though those racial groups represented 52 percent of the city’s population in 2010.

During trial, Judge Scheindlin found that 14 of the 19 stops constituted an unconstitutional stop or unconstitutional frisk. Ultimately, Judge Scheindin found the NYPD’s execution of its stop and frisk policy was unconstitutional.

My opinion?  Sure, most would agree we want guns and criminals off our streets. However, if stop and frisk policies involve systematically targeting certain racial groups, then these policies are simply unlawful. Period. Given his statements during the debates, I fear Trump’s administration may create, endorse and execute criminal justice policies which ultimately violate Fourth Amendment protections against unlawful searches and seizure.

2. How do you heal the racial divide?

TRUMP: “We need law and order. If we don’t have it, we’re not going to have a country. I just got today the endorsement of the Fraternal Order of Police. We have endorsements from almost every police group, a large percentage of them in the US. We have a situation where we have our inner cities, African- Americans, Hispanics are living in he’ll because it’s so dangerous. You walk down the street, you get shot.”

3. Do you see a crisis in the US of white police officers shooting unarmed blacks?

TRUMP: “It’s a massive crisis. It’s a double crisis. I look at these things, I see them on television. And some horrible mistakes are made. But at the same time, we have to give power back to the police because crime is rampant. I believe very strongly that we need police. Cities need strong police protection. But officers’ jobs are being taken away from them. And there’s no question about it, there is turmoil in our country on both sides.”

4. Do you understand why African Americans don’t trust the police right now?

TRUMP: “Well, I can certainly see it when I see what’s going on. But at the same time, we have to give power back to the police because we have to have law and order. And you’re always going to have mistakes made. And you’re always going to have bad apples. But you can’t let that stop the fact that police have to regain control of this tremendous crime wave that’s hitting the US.”

THE SUPREME COURT

According to Politico Magazine, Trump will probably pick ultra-conservative judges to fill anticipated vacancies in the United States Supreme Court. In an article titled, “How President Trump Could Reshape the Supreme Court – and the Country,” reporter Jeffrey Rosen surmises that Trump’s lasting legacy could be his power to shape the Supreme Court.

Apparently, during the third presidential debate, Trump described the 21 judicial candidates he has identified:

“They will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

Apparently, Trump’s judicial picks are pro-law enforcement on issues involving government searches and seizures. This bodes negatively for preserving Fourth Amendment protections against search and seizure.

Also, Trump vows to give more power to police to handle the racial divide between police and communities of color. My opinion? That’s similar to dousing a forest fire with gasoline. or allowing a fox to guard your henhouse. Police aren’t experts at policing themselves. What is needed are the reinforcement of police accountability policies as well as a substantial shift with the culture of today’s police departments.

Let’s be frank: the unjustified killing of citizens at the hands of police can no longer go unpunished, especially in the face of indisputable video evidence. In those cases, police must be held accountable for the crimes they commit against the citizens they are sworn to serve and protect. It’s the only way to rebuild trust between police and the communities of color.

Equally important, we need policies which increase training on de-escalation techniques and decrease police militarization models which involves the use of military equipment and tactics by law enforcement officers. This includes decreasing the use of armored personnel carriers, assault rifles, submachine guns, flashbang grenades, grenade launchers, sniper rifles, and Special Weapons and Tactics (SWAT) teams if more reasonable alternatives are possible.

THE DEATH PENALTY

Put simply, Mr. Trump as a staunch advocate of the death penalty.

“A life is a life, and if you criminally take an innocent life you’d better be prepared to forfeit your own. My only complaint is that lethal injection is too comfortable a way to go.”

“I can’t believe that executing criminals doesn’t have a deterrent effect . . . Young male murderers, we are constantly told, are led astray by violent music and violent movies. Fair enough. I believe that people are affected by what they read, see, hear, and experience. Only a fool believes otherwise. So you can’t say on one hand that a kid is affected by music and movies and then turn around and say he is absolutely not affected when he turns on the evening news and sees that a criminal has gone to the chair for killing a child. Obviously, capital punishment isn’t going to deter everyone. But how can it not put the fear of death into many would-be killers?”

Source: The America We Deserve, by Donald Trump, pp. 102-104, July 2, 2000.

JAILING AND DEPORTATION OF UNDOCUMENTED IMMIGRANTS.

According to the Huffington Post, Trump vows to immediately deport or imprison up to 3 million undocumented immigrants.  Trump said he would launch what could be the largest mass deportation effort in modern history, vowing to immediately deport a number of people comparable to the record-setting figure that President Barack Obama carried out over two terms in office.

This should come as no surprise. According to a recent article from the Washington Post, Trump’s proposal calls for the deportation of undocumented immigrants who have committed violent crimes. Trump said he would push for two new laws aimed at punishing criminal aliens convicted of illegal reentry and removing “criminal immigrants and terrorists,” including previously deported unauthorized immigrants. He said he would name these laws after victims killed by people in the United States illegally.

Although Trump’s removal of undocumented immigrants at this pace is apparently limited to convicted felons, his enthusiasm for removals suggests that overall deportations will likely rise when he takes office, after declining sharply last year.

Clearly, Trump’s presidency shall affect our nation’s approach to crime and punishment. Consequently, it’s imperative to hire defense counsel who is competent handling drug charges, death penalty crimes, violent crime, racial injustice and immigration issues. Today’s defense counsel must stay abreast of today’s ever-changing political landscape.

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.