Category Archives: Sentencing

High Court Strikes Racism in Jury Selection

42 U.S.C. § 1983, Bellingham Defense Attorney, Constitutional Rights, Death Penalty, Discovery, Due Process, Evidence, felony, Jury Selection, Jury Trial, Prison, Prosecutorial Misconduct, Race & Law, Sentencing, United States Supreme Court, Violent Crime, Whatcom County Criminal Defense, , ,

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The U.S. Supreme Court just sent a strong message about racism in the justice system.

In Foster v. Chatman, the Court reversed a defendant’s murder conviction after discovering that the Prosecutor systematically eliminated African American jurors from serving on Mr. Foster’s jury because of their race.

Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury.

Foster argued that the State’s use of those strikes was racially motivated, in violation of Batson v. Kentucky. The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas corpus proceeding.

While that proceeding was pending, Mr. Foster’s defense attorneys used the Georgia Open Records Act to obtained the Prosecutor’s file used during trial. In notes, prosecutors had highlighted the African Americans on several different lists of potential jurors. On one list, under the heading “Definite NOs,” prosecutors listed six potential jurors, all but one of whom were black.

Eventually, the U.S. Supreme Court granted review of the case on the issue of whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

The Court reasoned that the Georgia Supreme Court’s decision that Foster failed to show purposeful discrimination was clearly erroneous. They started with Batson’s three-step process for adjudicating claims such as Foster’s. First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, the trial court must determine whether the defendant has shown purposeful discrimination.”

Here, and in sum, the Court reasoned that Foster established purposeful discrimination in the State’s strikes of two black prospective jurors:

” . . . along with the prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was motivated in substantial part by discriminatory intent . . . the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

My opinion? Good decision. The decision is a forceful blow against racism in the courts. Although the Foster decision won’t end racial discrimination in jury selection, it is certainly vindication for the potential jurors who weren’t allowed to fulfill their civic duty all those years ago because of their race. As for Foster, his future is still in limbo. The Supreme Court’s decision entitles him to a new trial before a jury of his peers that hasn’t been tainted by racial discrimination. Still, that mere fact doesn’t guarantee a different outcome. The new jury may come to the same conclusion as the old one. But if nothing else, Mr. Foster’s death penalty has likely been put off for many years to come. And in the world of death penalty litigation, that counts as a win.

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

State v. Deleon: Court Strikes Evidence of “Gang Affiliation” Due To Defendant’s Music Preferences

Assault, Bellingham Defense Attorney, Constitutional Rights, Duress Defense, Evidence, felony, Prison, Race & Law, Search and Seizure, Self-Incrimination, Sentencing, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Deleon, the  WA Supreme Court held that (1) a defendant’s musical preference does not establish gang membership, and their admittance to gang affiliation during jail  booking may not be used at trial.

The State prosecuted Mr. Deleon and two others for multiple counts of Assault in the First Degree with deadly weapon enhancements and with gang aggravators.  If convicted, these upward enhancements substantially increased Deleon’s prison sentence. At trial, the court admitted as evidence of gang affiliation statements the defendant made at booking about his gang affiliation and evidence of the type of music on his cell phone.  Also, the trial court allowed a police officer to testify as a gang expert regarding generalized information of gang affiliation.

Mr. Deleon was found guilty and sentenced to 1,002 months. He appealed on the issue of (1) whether the trial court violated his Fifth Amendment right against self incrimination improperly admitted the aforementioned evidence, and (2) whether the gang expert testimony regarding gang culture and behavior was irrelevant and thus improperly admitted.

The WA Supreme Court reasoned that the gang information from the jail intake forms was not gathered voluntarily, and thus should not have been admitted as evidence. In short, it reasoned that when a defendant’s self-incriminating statements are made in exchange for protection from credible threats of violence while incarcerated, the statements are coerced and involuntary:

“We do not see how statements made under these circumstances could be considered voluntary. The admission of these statements was a violation of the defendant’s Fifth Amendment rights.”

The WA Supreme Court also ruled that the trial court mistakenly allowed evidence of the type of music on the defendant’s phone as evidence of gang affiliation. “Los Tigres del Norte is a prominent and popular Latin band and there is no evidence in the record to support that enjoying their music is evidence of gang affiliation . . .  We take this opportunity to remind courts to be far more cautious when drawing conclusions from a defendant’s musical preferences.”  This scathing wisdom reminded courts to be careful when admitting generalized evidence about gang affiliation.  “Such evidence is often highly prejudicial and must be tightly constrained to comply with the rules of evidence.”

Finally, the Court ruled that much of the generalized “gang evidence” was irrelevant and prejudicial, and thus should not have been admitted. The court reasoned that, under ER 402, evidence which is not relevant is not admissible. Here, the gang evidence produced by the State’s gang expert witness was highly prejudicial:

“We agree and urge courts to use caution when considering generalized gang evidence. Such evidence is often highly prejudicial, and must be tightly constrained to comply with the rules of evidence.”

With that, the WA Supreme Court held the defendant was entitled to a new trial. Therefore, the Court reversed the convictions and gang aggravators.

My opinion? I really enjoyed the rulings in this case. Sometimes, mainstream culture and music can be misconstrued as “gang evidence” when said music/culture is heard/exhibited by minorities. The Court attacked this veiled racism. Good on them. Also, they made good rulings on the 5th Amendment issues. A defendant’s gang affiliation when being booked into jail is a matter of personal security. The information should not be admitted at trial.

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.

Wielding Inoperable Firearm During Crime is Still Unlawful

Bellingham Defense Attorney, Firearm, Jury Trial, Kidnapping, Robbery, Sentencing, Uncategorized, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Tasker, the WA Court of Appeals Division III held that although the State must prove to the jury that the defendant possessed a real firearm at the time of the crime, the State is not required to prove that the firearm was operable.

On June 13, 2013, Gloria Campos-White was sitting in her parked car outside of her daughter’s middle school waiting for her daughter’s basketball practice to finish. A man walked up to her open driver’s side window, pointed a gun in her face, and demanded she give him her purse. She complied, telling him as she handed him the purse that she did not have any money.

After the man had her purse, he got into the back seat and ordered Ms. Campos-White to drive. He still had the gun when he entered the car, and that although she did not see it again, at one point when they were actually driving she thought she heard the clicking of something behind her head.

The man gave directions as she drove, but he did not tell her where they were going. She did not know where they were. Not knowing his intentions, Ms. Campos-White felt desperate to get away. Without slowing her car, she waited for a gap in oncoming traffic, unbuckled her seatbelt, opened the car door, and jumped out of the moving vehicle. Her car soon struck a bank on the side of the road and flipped on its side. People nearby heard the crash. They stopped traffic and attended to Ms. Campos-White. They saw a man climb out of a passenger side door of her car and run off. Ms. Campos-White sustained a severe concussion that led to the loss of her ability to taste or smell.

Ultimately, based on video surveillance recorded by the middle school, Ms. Campos-White’s identification, and physical evidence recovered from the scene of the crash, Christopher Tasker was arrested and charged with first degree kidnapping, attempted first degree robbery, and first degree unlawful possession of a firearm. The State sought firearm enhancements in connection with both the first degree kidnapping and the attempted first degree robbery charges.

At trial, Ms. Campos-White identified Mr. Tasker as the man who kidnapped and attempted to rob her. She described the gun that Mr. Tasker used, explaining it was a dark color and small enough to be held with one hand. She admitted during the State’s examination that she did not know much about guns or firearms, and testified that she had “never seen a gun in real life.” She also admitted that she would not know the difference between a revolver and semiautomatic handgun by name, but knew that they looked different. She never wavered from her testimony that Mr. Tasker had been armed with a gun, however. Asked on cross-examination whether there was any chance it could’ve been anything besides a handgun, she answered, “No.”

The defense devoted its entire closing argument to urging the jury that there was reasonable doubt whether Mr. Tasker had been armed with a real firearm. It emphasized Ms. Campos-White’s nonspecific description of the gun, her inexperience with firearms, and an asserted hesitancy in her testimony. Nevertheless, the jury found Mr. Tasker guilty of all charges and imposed the deadly weapon sentencing enhancements.

Defense Counsel brought a post-trial motion to set aside the jury’s verdict on the firearm possession findings.  The trial court informed the parties that it had concluded after reading cases cited by the parties that Division Two of the Court of Appeals “seems to focus more on the question of has the prosecution proven that the gun was operable,” while Division One “appears to focus more on the question of was the gun real,” a “slightly different question.” The court denied Defense Counsel’s motion, “recognizing that it’s a razor thin issue and it could go either way on appeal.”

Mr. Tasker’s sentences on his three convictions run concurrently, with the longest being his 144 month sentence on the first degree kidnapping count. The firearm enhancement terms (60 months for the kidnapping and 36 months for the attempted robbery) run consecutive to his base sentence, increasing his sentence by eight years.

Mr. Tasker appealed on the argument that the State failed to prove he wielded an operable firearm during the crimes. In other words, the question was whether evidence of operability at the time of the crime is required because the statutory definition of “firearm” includes language that it is a weapon or device “from which a projectile or projectiles may be fired.” Again, he argued, the firearm was inoperable.

Ultimately, the Court of Appeals was not persuaded. Instead, it found that a reasonable juror would have found sufficient evidence that Mr. Tasker wielded a firearm.

Here, the State presented sufficient evidence of what it was required to prove: that the gun Mr. Tasker used in the assault was a gun “in fact,” rather than “a gunlike but nondeadly object. Mr. Tasker pointed the gun at Ms. Campos-White’s face in demanding her purse and used it to advance a kidnapping. Visibility was good; the crime occurred in daylight on a June afternoon. Ms. Campos-White saw the gun at close range and was unwavering in her testimony that it was a gun.

While she forthrightly admitted to little experience with guns “in real life,” she was old enough, as the mother of a middle schooler, to have seen guns in photographs, on the news, in television programs and in movies. The clicking noise she described hearing behind her head was consistent with Mr. Tasker’s use of a real gun. Collectively, the evidence was sufficient to establish the gun met the definition of a “firearm” under RCW 9.41.010(9).

Consequently, the Court of Appeals affirmed the convictions.

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.

Prisoners on Strike

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Department of Corrections, Prison, Race & Law, Sentencing, Studies, Thirteenth Amendment, Whatcom County Criminal Defense, , ,

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Reporter Alice Sperry of theintercept.com  wrote an article describing how prisoners around the country have called for a series of strikes against forced labor and  demanded reforms of parole systems and prison policies; as well as more humane living conditions, a reduced use of solitary confinement, and better health care.

Apparently, Texas prisons are a hotbed for the controversy. Weeks ago, inmates at five Texas prisons pledged to refuse to leave their cells because of the strike. The organizers even drafted a letter articulating the reasons for the strike. Their demands range from the specific, such as a “good-time” credit toward sentence reduction and an end to $100 medical co-pays, to the systemic, namely a drastic downsizing of the state’s incarcerated population.

The 13th Amendment to the United States Constitution bans “involuntary servitude” in addition to slavery, “except as a punishment for crime whereof the party shall have been duly convicted . . .”

Today, however, the prison industrial complex is $2 billion a year industry, according to the Prison Policy Initiative, a nonprofit research institute.

Sperry article describes how a majority of prisoners work for the prisons themselves, making well below the minimum wage in some states, and as little as 17 cents per hour in privately run facilities. In Texas and a few other states, mostly in the South, prisoners are not paid at all, said Erica Gammill, director of the Prison Justice League, an organization that works with inmates in 109 Texas prisons.

“They get paid nothing, zero; it’s essentially forced labor,” she told The Intercept. “They rationalize not paying prison laborers by saying that money goes toward room and board, to offset the cost of incarcerating them.”

In Texas, prisoners have traditionally worked on farms, raising hogs and picking cotton, especially in East Texas, where many prisons occupy former plantations.

Although they comprise nearly half the incarcerated population nationwide — about 870,000 as of 2014 — prison workers are not counted in official labor statistics; they get no disability compensation in case of injury, no social security benefits, and no overtime.

The Texas action is not an isolated one. Prisoners in nearby Alabama and Mississippi, and as far away as Oregon, have also been alerted to the Texas strike through an underground network of communication between prisons.

In March, protests erupted at Holman Correctional Facility, a maximum security state prison in Alabama, where two riots broke out over four days. At least 100 prisoners gained control of part of the prison and stabbed a guard and the warden. Those protests were unplanned, but prisoners there had also been organizing coordinated actions that they say will go ahead as planned.

“We have to strain the economics of the criminal justice system, because if we don’t, we can’t force them to downsize,” an activist serving a life sentence at Holman told The Intercept. “Setting fires and stuff like that gets the attention of the media,” he said. “But I want us to organize something that’s not violent. If we refuse to offer free labor, it will force the institution to downsize.”

“Slavery has always been a legal institution,” he added. “And it never ended. It still exists today through the criminal justice system.”

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.

Bellingham’s New & Innovative Jail Alternatives Program

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Recently, the Bellingham City Council approved a new and innovative program to expand alternatives to incarceration and help reduce Whatcom County Jail overcrowding issues.

The Bellingham Reduced Incarceration Challenge (BRIC) program allows eligible defendants to serve their incarceration through a private, non-profit agency, Friendship Diversion Services (FDS).

ELECTRONIC HOME MONITORING UNDER THE BRIC PROGRAM

Here, FDS provides jail alternatives such as Electronic Home Detention (EHD) and monitoring through such devices as SCRAM once the defendant is screened and deemed eligible. GPS technology allows 24-hour monitoring. Participants on EHD must remain in their residence unless the Court permits them to leave for a specific purpose. However, they may leave the home for certain verified periods for approved activities to include school, work, treatment, counselling, probation/parole, medical/ dental appointments, scheduled court hearings, attorney appointments and child care provisions.

While there are fees associated with this jail alternative, the costs are significantly lower than traditional jail and/or jail alternatives.

Even more attractive, this alternative sentencing program is especially helpful for those with medical issues that prevent them from serving traditional jail or alternatives since they can serve their sentence at home and continue their prescribed medical treatment.

ELIGIBILITY

Anyone serving through FDS must meet statutory eligibility criteria, a screening assessment and have a sentence of more than one day. The present costs associated with FDS commitment is as follows:

*$50 hook-up fee (for ankle bracelet)

*$14.50 per day (GPS)

*$25.00 per day (GPS and SCRAM)

All defendants will be eligible to apply for financial assistance if FDS finds that they qualify as low income during the intake screening process.

HOW IT WORKS

At sentencing, the Court enters a Home Detention Order (HDOR) authorizing the defendant to serve his/her sentence through FDS, if eligible. Any request for credit for time served (CFTS) should be presented with verification at the time of sentencing. The defendant is then initially screened to determine eligibility. If deemed eligible, the defendant must comply by first contacting FDS by phone within 1 business day to set an intake appointment.

At sentencing, the defendant signs a promise to appear for a Jail Review scheduled approximately 2 weeks after sentencing. That review hearing is stricken once the Court receives confirmation from FDS that the defendant has complied. A sample copy of this HDOR is attached. If requesting credit for time served (CFTS) towards any jail recommendation, the attorneys should come prepared at sentencing with documentation verifying any jail already served since the Court cannot obtain that information.

Any violations of the HDOR are reviewed by the Court to determine appropriate sanctions including removing the defendant from the FDS program and withholding jail alternatives for the balance of the sentence.

The Court intends to expand the BRIC program to encourage rehabilitation and reintegration. These programs benefit both the individual and the community. Programs being considered, among other things include re-licensing, theft awareness classes and even the possibility of work crews.

My opinion? I’m impressed. The BRIC program is a new and innovative way to facilitate EHM without having to get Whatcom County Jail Alternatives or a private home monitoring company involved. Good stuff.

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

State v. Feely: Endangering Other Officers During Pursuit Brings Enhanced Penalties

Bellingham Defense Attorney, DUI, Eluding, felony, law enforcement, police, Sentencing, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Here’s an interesting case out of Whatcom County.

In State v. Feely, the WA Court of Appeals held that a defendant convicted of Attempting to Elude a Police Vehicle also faces sentencing enhancements under RCW 9.94A.834 when an officer who deploys spike strips is endangered.

Shortly after midnight, Trooper Travis Lipton was parked in an unmarked vehicle on the shoulder of the northbound on ramp to Interstate 5. A pickup truck driven by defendant Thomas Feely passed very close to Trooper Lipton’s car while merging onto the freeway. Trooper Lipton saw the truck drift into the left lane before returning to the right lane. He followed Feely.

Once Trooper Lipton caught up to Feely, he started his car’s audio and video recording system. He observed Feely drift “back and forth within the right lane continuously,” and cross the fog line and the “center skip line” dividing the two lanes. After Feely failed to signal a lane change, Trooper Lipton activated his siren and emergency lights.

Feely continued northbound. Trooper Lipton advised dispatch of Feely’s failure to stop. Feely took the next exit and ran the stop sign at the top of the exit ramp. Feely continued on the two-lane road, greatly exceeding the speed limit and drifting “over onto the oncoming lane frequently.” He bypassed two cars that slowed or stopped as a result. Trooper Lipton requested dispatch contact other troopers to deploy spike strips.

Police set up a spike strip, but Feely went around it. Sergeant Larry Flynn set up another spike strip. Feely attempted to drive around it but “immediately locked up” his brakes. He “slid almost the whole way” towards Sergeant Flynn and stopped just short of where Sergeant Flynn was standing. Feely then “started to jerk forward” towards Sergeant Flynn by the side of the road. Sergeant Flynn released some slack on the spike strips so he could get farther off the road. Feely ran over one of the spike strips with his front left tire and sped away. Trooper Lipton maintained his pursuit.

After turning down a private driveway, Feely drove his truck into a swamp. He ran into the woods, leaving one shoe behind in the mud. More police officers shortly arrived, and after searching with two police dogs, they found Feely hiding in a tree. He had no shoes on and his clothes were wet. The officers took Feely into custody and smelled alcohol on his breath.

Trooper Lipton took Feely to a hospital. About an hour later, Trooper Lipton collected Feely’s blood, which registered a blood alcohol level of 0.13.

The State initially charged Feely with one count of Felony Driving Under the Influence (DUI) and one count of Attempting to Elude a Pursuing Police Vehicle with an endangerment sentencing enhancement. The State later amended the information to allege an aggravating circumstance under RCW 9.94A.535(2)(c) because Feely had committed multiple current offenses and his high offender score results in some of the current offenses going unpunished.

At trial, Feely stipulated that he had four prior qualifying convictions, elevating the DUI to a felony. The jury found Feely guilty as charged. In a special verdict, the jury also found that a “person, other than [Feely] or a pursuing law enforcement officer, was endangered by Feely’s actions during his commission of the crime of Attempting to Elude a Police Vehicle.”

The trial court sentenced Feely to 60 months for the felony DUI. The court sentenced him to 29 months for attempting to elude, plus 12 months and one day for the endangerment enhancement. The court ordered “all counts shall be served consecutively, including the portion of those counts for which there is an enhancement.” The court imposed this upward exceptional sentence after expressly finding that Mr. Feely committed multiple current offenses and the defendant’s high offender score resulted in some of the current offenses going unpunished.

Feely appealed. One of his arguments was that the prosecutor misstated the law when he argued the jury “could find Feely endangered someone other than himself or a pursuing police officer if it found he endangered the officers who deployed the spike strips.”

However, the Court of Appeals disagreed. It reasoned that the prosecutor did not misstate the law in arguing that the jury could consider Feely’s endangerment of the spike strip officers for the sentencing enhancement.

The Court also reasoned that multiple, corroborating facts identified Feely as the driver of the truck, consequently, compelling evidence supports his convictions:

Moreover, Feely’s crime was captured on Trooper Lipton’s vehicle’s video recording system and admitted at trial. This video showed one driver driving a truck registered to Feely’s parents. The officers testified that they followed Feely down the private driveway, where they found his truck stuck in a swamp with the driver side window partially rolled down and the driver side door ajar. The passenger side door was closed and an expired Washington State identification card belonging to Feely was in the center console. The officers also testified that they heard what “sounded like one person” “making his way through the brush and the sticks,” and that they did not hear any sounds coming from any other direction. Moreover, police dogs, who arrived within five minutes of finding Feely’s truck, were able to locate him hiding nearby in a tree. These dogs led the officers to the same tree. Feely smelled of alcohol, and several hours after the incident, had a blood alcohol level of 0.13.

Additionally, the Court of Appeals rejected Feely’s argument that the Prosecutor’s minimization of the State’s burden of proof here was improper. It reasoned that the prosecutor here never implied the jury had a duty to convict without a reason to do so or ever suggested that the burden of proof shifted to Feely. “In context of the total closing argument, we conclude the prosecutor did not trivialize the State’s burden.” Consequently, and because Feely did not object at trial and fails to establish any resulting prejudice, the Court decided Feely’s claim fails.

Finally, the Court of Appeals concluded the trial court properly imposed an exceptional sentence based on Feely’s high offender score: “Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the sentencing range increases based on the defendant’s offender score, up to a score of 9.59. Based on Feely’s offender score of 14 for each count, he faced a 60–month sentence for the felony DUI conviction alone.”

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.

“Good Time” Early Release

Bellingham Defense Attorney, Department of Corrections, Prison, Sentencing, Whatcom County Criminal Defense, , ,

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A recent news article from The News Tribune and the Bellingham Herald discussed how inmates earn time off their sentences. Also, earned release time is at the heart of the mistaken early release of inmates that is roiling the state prison system. The scandal has shown just how complicated the calculations involved can be, requiring software whose programming errors freed as many as 3,200 inmates early yet went undetected for a decade. At least two of the inmates prematurely released were later charged with deaths that happened while they should have been in prison.

These recent developments inspired this blog.

Although I’m highly successful at resolving serious criminal cases in a manner which avoids prison sentences, if prison is unavoidable then I do my best to reduce and/or amend their criminal charges in a manner which allows for early release through “Good Time.” It’s time to clarify some misunderstandings about what “Good Time” really is.

THE BASICS

“Good Time” is governed by RCW 9.94A.728 and RCW 9.94A.729. Washington’s Department of Corrections does not allow Good Time to individuals serving life without parole or sentenced to death. Also, Good Time cannot reduce a mandatory minimum prison sentences. There is no good time awarded on deadly weapon or firearm enhancement time. DOC does not award good time for sexual motivation enhancements. There is no good time awarded when confinement is imposed on conviction of a sex offense under Washington’s Special Sex Offender Sentencing Alternative (SSOSA).

DOC uses specific terms for what we call good time: DOC calculates “earned release time” (ERT) as a combination of “good conduct time” and “earned time credit.”  “Good conduct time” is time awarded for good behavior and “earned time credit” is time awarded for participating in DOC approved programming such as work and school.  A person who earns early release time and who shall be supervised by DOC will be transferred to community custody in lieu of earned early release. A comprehensive guide to good time and other related issues can be found at the DOC web site.

CAN OFFENDERS GET 50% OFF?

No. Under state law, the 50% good time rule expired on July 2, 2010, and has not been reinstated.

WHAT CALCULATES POTENTIAL “GOOD TIME?”

The chart below lists the potential good time that an inmate can receive.  Individuals may not be released on their early release date if they do not have a Release Plan, even if they have earned the time.

Crime type/classification Eligible Good Time Notes
Serious Violent or Class A Sex Offense Up to 10% if sentenced on or after 7/1/2003

 

 Up to 15% for individuals sentenced from 7/1/90-7/1/2003
All other offenses Up to 33%

For all individuals sentenced July 2, 2010 and after, unless they are sentenced as a persistent offender.

 Previously – up to 50% for certain offenses, depending upon risk level and other factors, if sentenced July 1, 2010 and before.

 

For the most part, offenders may receive 10% – 33% off for “Good Time.”

RISK ASSESSMENT TOOL

In 2009, the DOC implemented a standardized assessment which conducts an offender’s risk assessment upon arrival. That assessment determines the offender’s classification. Factors include criminal history (including in other states), current crime, and history and type of infractions. The “tool” is supposed to be more effective at determining risk. From DOC’s standpoint, this approach is supposed to be more effective at determining risk.

However, the Defense Bar has criticized DOC’s standardized assessment criteria as being “static” and “inflexible.”  Before 2009, individuals could see their classifications change for the better. Now, however, it doesn’t ever improve for the better– the risk category stays the same or gets worse.

ARE IN-CUSTODY PROGRAMS AVAILABLE?

Washington’s prisons house more than 16,000 people. More than 2,000 of them work for Correctional Industries, which is one way inmates can qualify for earned release time. Another 1,000 are on the waiting list, according to the job-training program.

About 9,000 are involved in some kind of education program, according to the community-college system that runs the programs. Hundreds more are on waiting lists for classes. The college system offers high-school level education, vocational training, and other programs such as job-search, parenting and anger-management courses. State law doesn’t allow state money to be used to award associate degrees.

Keeping all of this in mind, it’s imperative for defense attorneys to properly advise clients facing prison sentences of their eligibility for earned release and opportunity for rehabilitative programs.

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

State v. Keodara: Overbroad Search Warrant for Cell Phone

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Due Process, Eighth Amendment, Evidence, felony, Homicide & Manslaughter, Ineffective Assistance, Probable Cause, Search and Seizure, Search Warrant, Sentencing, Technology, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Keodara, the WA Court of Appeals ruled that a search warrant was overbroad in violation of the particularity requirement because it allowed police to search a cell phone “for items that had no association with any criminal activity and for which there was no probable cause whatsoever.”

In 2011, the defendant Say Keodara was involved in a shooting at a bus stop.  Several weeks later, police arrested him for an unrelated incident. They searched his backpack and found his cell phone. Outside the backpack police found drugs, drug packaging and drug paraphernalia.  An officer submitted an affidavit in support of a search warrant for the contents of the cell phone.

The affidavit made several generalizations about drug dealers and gang members in support of the officer’s conclusion that there was evidence of crime on the cell phone. The judge issue the warrant pursuant to the affidavit, which ultimately allowed police to search Keodara’s entire phone without any limitations.  Police searched the phone and found evidence that the State used when trying Mr. Keodara for the shooting at the bus stop.

Keodara was charged with Murder in the First Degree, three counts of Assault in the First Degree (each with a separate firearm enhancement), and Unlawful Possession of a Firearm in the First Degree. He was convicted on all counts and sentenced to 831 months of prison (69.25 years).

On appeal, Keodara argued that the evidence from his phone should have been suppressed because the search warrant violated the Fourth Amendment to the United States Constitution and art. I, §7 of the Washington State Constitution. He also argued that his substantial prison sentence violated the Eighth Amendment.

Ultimately, the court held that although the search of Keodara’s phone violated the federal
constitution, the failure to suppress the evidence was harmless. It also held that Keodara’s sentence violated the 8th Amendment because the court failed to Keodara’s youth and other age-related factors into account. Accordingly, the court affirmed Keodara’s conviction but remanded for a new sentencing hearing.

In reaching its decision, the court reasoned that a warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search. In this case, the affidavit for the warrant for Keodara’s phone contained blanket statements about what certain groups of offenders tend to do and what information they tend to store in particular places. Furthermore, the warrant’s language also allowed Keodara’s phone to be searched for items that had no association with any criminal activity and for which there was no probable cause whatsoever. The court also said the following:

Here, no evidence was seized that would have linked Keodara’s phone to the crimes listed in the warrant-unlawful possession of firearms, possession with intent to deliver or sell narcotics, or assault. Nothing in the record suggests that anyone saw Keodara use the phone to make calls or take photos. In addition, the phone was found in a backpack, separate from the drug paraphernalia or the pistol. There was no indication that evidence of firearms or drugs were found with the phone. We conclude that the warrant was overbroad and failed to satisfy the Fourth Amendment’s particularity requirement.

Nevertheless, the Court of Appeals also held that the trial court committed harmless error in admitting evidence police found on the phone:

Here, the untainted evidence of Keodara’s guilt was strong. Cellular phone tower records placed him near the location of the shooting, two eyewitnesses identified him, and another witness testified that Keodara contacted him and told him about the shooting. We find that the trial court’s denial of Keodara’s motion to suppress does not warrant reversal and, accordingly, we affirm his convictions.

The Court of Appeals also addressed the issue of whether Keodara’s sentence violated the Eighth Amendment. In short, the court said, “Yes.” It reasoned that the trial court did not take into account that Keodara was a juvenile at the time he committed the crimes or consider other age related factors that weigh on culpability or his capacity for rehabilitation. Based on that, the Court concluded that the sentence imposed in this case violated Keodar’s constitutional rights under the Eighth Amendment. Accordingly, the Court of Appeals vacated the sentence and remanded for a new sentencing hearing.

My opinion? Good decision. It appears that, more and more, our courts are rightfully acknowledging a Defendant’s youth at sentencing.

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

State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing

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In State v. O’Dell,  the Washington Supreme Court held that a defendant’s youthfulness can support a lower prison sentence.

About 10 days after his 18th birthday, O’Dell had sex with 12-year-old A.N. The two met up on Sunday afternoon, along with a mutual friend, to drink wine and smoke cigars in the woods. Apparently, she, the friend, and O’Dell made plans to meet up again later that night but that the friend did not join them as planned. She and O’Dell sat in the woods to wait for their friend and, after a few minutes of talking, O’Dell forcibly raped her.

Sean O’Dell was convicted of Rape of a Child Second Degree. At O’Dell’s sentencing hearing, the defense requested a lighter sentence because, as he said it,  “The defendant’s capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired by youth.”

The defense also argued that when O’Dell committed his offense, he “was still in high school, associating with school age persons” and “was not some mid-twenties man hanging out at the local high school or trolling the internet for young people.”

Finally, the defense quoted portions of the United States Supreme Court’s decision in Roper v. Simmons, which held that it is unconstitutional to impose the death penalty on a juvenile. Roper relied on research, by various medical and psychiatric associations, indicating that juveniles are more susceptible to negative influences and impulsive behavior and therefore less morally culpable for their crimes relative to adults.

Despite Defense Counsel’s arguments, the trial court sentenced O’Dell to 95 months of prison and said that it could not consider age as a mitigating circumstance.

O’Dell committed this offense 10 days after his 18th birthday. As stated by his defense attorney, “had the incident happened two weeks prior, and assuming the State could not convince the Court to prosecute O’Dell as an adult, he would be facing 15-36 weeks in a well-guarded juvenile detention facility … rather than 78-102 months in an adult prison.”

On appeal, O’Dell challenged his 95-month sentence. He argued that the trial court abused its discretion when it refused to consider O’Dell’s own relative youth as a basis to depart from the standard sentence range.

The WA Supreme Court ruled that the trial court erred when it refused to consider O’Dell’s youth as a mitigating factor justifying a lower sentence. First, it reasoned that all defendants 18 and over are, in general, equally culpable for equivalent crimes. But it could not have considered the particular vulnerabilities – for example, impulsivity, poor judgment, and susceptibility to outside influences – of specific individuals. The trial court is in the best position to consider those factors.

Second, the WA Legislature defining an adult felony offender as “18 and over” did not have the benefit of psychological and neurological studies showing that the parts of the brain involved in behavior control continue to develop well into a person’s 20’s:

These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure. Until full neurological maturity, young people in general have less ability to control their emotions, clearly identify consequences, and make reasoned decisions than they will when they enter their late twenties and beyond.

Finally, the Court concluded, in light of what we know today about adolescents’ cognitive and emotional development, the defendant’s youth may, in fact, relate to a defendant’s crime that it is far more likely to diminish a defendant’s culpability; and that youth can, therefore, amount to a substantial and compelling factor justifying a lighter sentence. “For these reasons, a trial court must be allowed to consider youth as a mitigating factor when imposing a sentence on an offender like O’Dell, who committed his offense just a few days after he turned 18.”

The WA Supreme Court remanded O’Dell’s case for re-sentencing.

My opinion? Good decision. The defense attorney was very intelligent to provide the court with studies showing that young offenders have less ability to control their emotions and impulses. This is very true. Indeed, this reasoning is exactly why the Washington Legislature adopted the Juvenile Justice Act in 1977 and treats young offenders differently than adult offenders.

Here, although the Defendant was categorically denied Juvenile Court because he was 18 years old, he was barely 18 years old when he committed the offense. He’s much closer to being a child than an adult. And until a young person turns 25, their brains haven’t fully developed. Good decision.

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

State v. Gauthier: The “Washout” Rule for Felony Convictions

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Washout" Rule for Priors | Law offices of Alexander Ransom

Many clients approach me on the question of when prior felony convictions “Washout” from a Defendant’s offender scores. The recent case of State v. Gauthier is a good place to answer that question.

In Gauthier, the WA Court of Appeals Division I decided (1) the prosecutor’s closing arguments were fair,  (2) Gauthier received effective assistance of counsel, and (3) trial court properly calculated Gauthier’s offender score.

At trial, Mr. Gauthier was found guilty of Rape in the Second Degree. On appeal, he argued that the trial court improperly calculated his offender score by failing to recognize that his prior convictions “washed out” pursuant to RCW 9.94A.525(2)(c).

Some background is necessary. Under the “washout” provision, RCW 9.94A.535(2)(c), prior “Class C” felony convictions are excluded in a defendant’s offender score if, since the last date of release from confinement pursuant to a felony conviction or entry of the judgment and sentence, the offender spent five consecutive years “in the community” without committing any crime that subsequently results in a conviction.

In Gauthier’s case, he had five prior class C felony convictions. His last release date happened in June 2007. However, he did not remain crime free for five years. He was charged with the Rape Second Degree on March 13, 2009, and taken into custody to the King County Correctional Facility on July 23, 2010. There, he remained through his first trial on May 2011 which resulted in a conviction. He was subsequently sentenced on July 8, 2011. Consequently, the sentencing court properly calculated his offender score as a five (5) based on his five prior class C felony convictions.

Furthermore, at his sentencing on February 14, 2014, Gauthier argued that his five prior class C felonies should not be included in his offender score because he spent 43 months in custody before he was convicted again on the present offense. He claimed that under the “washout” statute, the “in the community” phrase includes the 43 months he spent in custody on this offense, thus his offender score is zero not five. The sentencing court rejected this argument, calculated his offender score as five, and sentenced him to 120 months with credit for all time served back to July 2010, the date he was first arrested.

Here, and similar to the trial court, the WA Court of Appeals rejected Gauthier’s arguments and also rejected Gauthier’s reliance on State v. Ervin, a somewhat recent case where the WA Supreme Court decided in favor of the defendant James Erwin’s arguments  that his 17 days of custody did not interrupt the requisite  5-year washout period:

“We have found no case, and Gauthier cites to none, where Ervin’s limited holding was applied to time spent in confinement while awaiting resolution of a felony charge. That is the precise circumstance present here. As the State correctly points out, Gauthier’s interpretation creates an absurd scenario—a defendant’s offender score will actually go down while he is in custody pending trial or pending sentencing. Indeed, that is an absurd result and a result we are confident the legislature did not intend.”

Simply put, if Gauthier had remained in the community for five years after June 2007 and remained crime free for those five years, his prior class C felony convictions would not count in his offender score after June 2012. It would have “washed out” under RCW 9.94A.535(2)(c). However, Gauthier’s 43 months in custody rendered hopeless any arguments that his priors would wash out.

The Court of Appeals upheld affirmed the trial court’s Judgment & Sentence and sentenced him to 120 months of prison.

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.