Category Archives: Sex Crimes

Vacating Convictions

Bellingham Defense Attorney, felony, Legislation, Rape, Sex Crimes, Skagit County Criminal Defense, Statutory Interpretation, Vacating Convictions, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Expungement and Vacating Criminal Records | The Curtis Firm, LLC

In State v. Lambert, the WA Court of Appeals held that when an offender has been convicted of an offense that is a crime against a person, the record of that conviction may not be vacated. Third degree statutory rape is a crime against a person.

BACKGROUND FACTS

In 1986, when Lambert was nineteen years old, he was charged with third degree statutory rape. The charge was based on an incident involving a victim fifty-five months younger than Lambert. Lambert pleaded guilty as charged.

Lambert was sentenced in May 1987. The law at that time said that the record of conviction for statutory rape could be vacated, in the trial court’s discretion, after the offender satisfied his sentence and completed five years after discharge without a new conviction.

In July 1987, however, the law concerning vacation of the record of conviction was amended. Under the new law, statutory rape in the third degree was defined as a crime against persons that could not be vacated.

In 1988, the legislature enacted broad changes to the criminal code concerning sex offenses. The sections defining statutory rape in each degree were replaced with provisions defining three degrees of rape of a child. “Rape of a child” replaced “statutory rape” in the list of crimes against persons that could not be vacated.

In 2016, Lambert moved to vacate the record of his conviction. He argued that the 1988 amendments did not apply retroactively and the trial court thus had discretion to vacate the record of conviction for his offense, third degree statutory rape. The trial court ruled that Lambert was “not eligible to have his conviction vacated because rape of a child third degree is a crime against a person.” Lambert appealed.

LEGAL ISSUE

Whether statutory rape in the third degree is a crime against a person that may not be vacated.

ANALYSIS & CONCLUSIONS

“The legislature expressly designated statutory rape in the third degree, and that crime as it ‘may be renamed in the future,’ as a non-vacatable crime against a person,” reasoned the Court. “Rape of a child in the third degree criminalizes the same essential conduct as third degree statutory rape: engaging in sexual intercourse with a person between fourteen and sixteen years of age.”

The court further reasoned that the offenses differ in replacing the requirement that the offender be at least eighteen years old with the requirement that the offender be at least forty eight months older than the victim. Rape of a child is expressly defined as a crime against persons.

“It appears that the 1988 amendments renamed statutory rape and retained the prohibition on vacating the record of conviction for that offense,” said the Court.

“We conclude that where, as here, an offender was convicted of statutory rape, and the facts proved establish each element of that offense as amended and renamed, the prohibition on vacating the record of conviction remains in effect.”

Finally, the Court said Lambert had no vested right to vacate the conviction because he failed to satisfy all statutory conditions for vacating his sentence before the change in law took place.

My opinion? It’s important to seek qualified, competent legal representation when trying to vacate prior criminal convictions. It’s not abundantly clear that prior crimes against others cannot be vacated under the law. Please contact my office if you, a friend or family member need advice on vacating criminal convictions.

Character Evidence

Bellingham Defense Attorney, ER 404(B), Evidence, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Wilson the WA Court of Appeals held that the trial court mistakenly admitted into evidence a dissimilar and unfairly prejudicial prior act of sexual misconduct as a purported common scheme or plan under ER 404(b).
BACKGROUND FACTS
Claudine Wilson has cared for her granddaughter, B.E., since she was born on January 29, 2006. In 2010, when B.E. was four years old, Claudine married the defendant Leslie Wilson. Wilson moved into Claudine’s home in Auburn, Washington which Claudine shared with several other family members. Claudine, Wilson, and B.E. shared a bedroom. Claudine and Wilson slept in a king size bed. B.E. had her own bed in the same room, but sometimes slept with Claudine and Wilson.
Wilson and B.E. appeared to get along well. However, the marriage between Wilson and Claudine eventually deteriorated, in part due to Wilson’s alcohol use. Wilson left the household in July 2012. About five months later, in December 2012, just after Claudine spoke to Wilson on the telephone, B.E. told Claudine that Wilson had touched her.
Wilson was charged with two counts of Rape of a Child in the First Degree and one count of Attempted Rape of a Child in the First Degree.
Before trial, the State informed the trial court of its intent to present evidence of a sexual remark Wilson allegedly made to B.E.’s older cousin, S.H. Specifically, S.H. claimed that when she was 11 or 12 years old and wearing a bathing suit, Wilson remarked that she should not “wear that stuff around [him] because it gets—[him] so excited.” The State argued that this evidence showed that Wilson had a common scheme or plan to sexually assault young girls. The defense argued that the evidence showed only propensity and was inadmissible. The court ruled that S.H.’s testimony demonstrated a common scheme or plan and was admissible under ER 404(b).
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals agreed with Mr. Wilson that the trial court erred in admitting a dissimilar and unfairly prejudicial prior act of sexual misconduct as a purported common scheme or plan under ER 404(b).
The Court reasoned that ER 404(b) prohibits the use of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith. The same evidence may be admissible for other purposes, however, depending on its relevance and the balancing of the probative value and danger of unfair prejudice. State v. Gresham. One accepted “other purpose” under ER 404(b) is to show the existence of a common scheme or plan.
The Court further reasoned that prior misconduct and the charged crime must share a sufficient number of “markedly and substantially similar” features so that the similarities can naturally be explained as individual manifestations of a general plan. The prior misconduct must be sufficiently similar to the charged crime, or else the evidence of misconduct is not probative of whether the alleged act occurred. Similarity of results is insufficient and the evidence must show more than a general “plan” to molest children. Ultimately, in doubtful cases, the evidence should be excluded.
Against that backdrop, the Court decided that the incidents described by B.E. and S.H. did not share “markedly and substantially similar” features that can naturally be explained as individual manifestations of a general plan:
“B.E. reported recurring incidents of sexual abuse. S.H. reported an isolated, sexually-oriented remark. There was a significant difference in the victims’ ages when the incidents occurred. The evidence was similar only in the respect that it tended to show Wilson’s sexual attraction to minors. S.H.’s testimony did not demonstrate the existence of a common scheme or plan. In view of the limited evidence presented to the jury, we cannot say that the admission of the ER 404(b) evidence did not materially affect the trial within reasonable probabilities.”
With that, the Court of Appeals reverse Wilson’s conviction of Rape of a Child.

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.

Dealing in Depictions

ACLU, Bellingham Defense Attorney, Constitutional Rights, felony, Juvenile, Legislation, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Gray, the WA Supreme Court decided that the Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct statute allows the State to prosecute a minor for taking and distributing a sexually explicit photo of himself.
BACKGROUND FACTS
When he was 17 years old, Eric D. Gray electronically sent an unsolicited picture of his erect penis to an adult woman. The woman contacted the police, and Gray was charged with and convicted of one count of Second Degree Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct. It also charged him with one count of Telephone Harassment under RCW 9.61.230. Gray moved to dismiss both charges for insufficient evidence, which the trial court denied.
In a stipulated facts trial, the court found Gray guilty of the second degree dealing in depictions of a minor charge. The State agreed to dismiss the telephone harassment charge and chose not to charge him with two counts of misdemeanor indecent exposure stemming from an unrelated incident. He was sentenced to 150 hours of community service, 30 days of confinement, and fees, before being released with credit for time served. He was ordered to register as a sex offender.
Mr. Gray appealed to Division Three of the Court of Appeals, which affirmed his adjudication. He appealed again, this time to the Washington Supreme Court, claiming the plain language of the statute does not anticipate minors who take and transmit sexually explicit images of themselves. The American Civil Liberties Union of Washington, the Juvenile Law Center, Columbia Legal Services, and TeamChild subsequently filed a joint brief as amicus curiae, or “friend of the court”.
ISSUES
1. Does RCW 9.68A.050 allow the State to prosecute a minor for taking and distributing a sexually explicit photo of himself?
2. Is RCW 9.68A.050 impermissibly overbroad or vague in violation of the federal or state constitutions?
COURT’S ANALYSIS AND CONCLUSIONS
The WA Supreme Court reasoned that the plain language of the statute prohibits transmitting sexually explicit images of a minor even if the minor himself sent it:
“Under this statute, the State properly charged Gray for his actions. When he was 17, Gray took a photo of his erect penis and sent it, unsolicited, to another person. Gray is a “natural person” and therefore a person for purposes of the statute. He was also under the age of 18, making him a minor under the statute as well. He stated he was attracted to T.R., and when he sent the picture he included the phrase “Do u like it, babe?,” indicating an attempt to arouse the recipient. The picture he transmitted was, therefore, a visual depiction of a minor engaged in sexually explicit conduct because it was a picture of a minor’s genitals designed to sexually stimulate the viewer. This falls squarely within the statute’s plain meaning.”
The Court also reasoned that the statute here is unambiguous. A “person” is any person, including a minor. “Images of a ‘minor’ are images of any minor,” reasoned the Court. It elaborated that nothing in the statute indicates that the “person” and the “minor” are necessarily different entities. Therefore, the photographer or distributor may also be the minor in the photograph. “Because of this, Gray was properly charged with taking and disseminating sexually explicit images of a minor,” said the Court.
Furthermore, the Court reasoned that the Legislature’s findings support the Court’s plain reading of the statute. “The legislature intended to destroy the blight of child pornography everywhere, from production of the images to commercial gain,” said the Court. “Because the statute was intended to curtail production of child pornography at all levels in the distribution chain, the statute prohibits Gray’s actions.”
Finally, the Court reasoned that the statute is neither unconstitutionally overbroad nor unconstitutionally vague. First, it does not invite arbitrary and discriminatory enforcement. Despite Gray’s arguments, the Court reasoned that the State is vested with great discretion in determining how and when to file criminal charges. Here, Gray presents no evidence the State made the choice to charge Gray for an arbitrary or discriminatory purpose.
Second, the wording of the statute allows a reasonable person to understand what conduct is prohibited. “It states that ‘a person’ will be guilty if they transmit sexually explicit images of ‘a minor,’ said the Court. “On its face, this includes any person, even a minor taking a picture of himself. Our responsibility is to interpret the law, not to write it, and here the law is clear.”
With that, the WA Supreme Court voted 6-3 to affirm the Court of Appeals and upheld Gray’s conviction.
THE DISSENT
Justice McCloud authored the dissenting opinion. He reasoned that RCW 9.68A.050 is designed to tackle a significant problem: trafficking in sexual depictions of children. Furthermore, the statute tackles that problem with severe criminal penalties for the traffickers but protection for the depicted children.

“There is a long-standing and well-accepted rule that when a legislature enacts a criminal law to protect such a specific class, we cannot interpret that law to permit prosecution (and potential revictimization) of members of that protected class for their own exploitation—unless the legislature explicitly says so. The legislature did not say so here. Hence, the general rule applies,” said Justice McCloud. “Gray, the depicted minor, cannot be prosecuted under this statute for disseminating pictures of himself.”

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.

Does Sex Offense Registration Violate the Constitution?

Bellingham Defense Attorney, Eighth Amendment, Federal Crimes & Prosecutions, Sentencing, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

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An article written by Jacob Sullum of www.reason.com talks about how a federal judge recently ruled that Colorado’s online database of sex offenders violates the Eighth Amendment of the U.S. Constitution.

Last week, a federal judge recognized what anyone dealing with the burdens, obstacles, and dangers of life on the registry knows: Its punitive impact far outweighs any value it might have in protecting the public. In fact, U.S. District Judge Richard Matsch concluded, registration can violate the Eighth Amendment by imposing what amounts to cruel and unusual punishment.

The three men who challenged Colorado’s Sex Offender Registration Act were sentenced to probation. Two of them also served 90 days in jail. Their real punishment began later, when they found that appearing in the state’s online registry of sex offenders made it impossible to lead a normal life.

David Millard

David Millard, who pleaded guilty to second-degree sexual assault on a minor in 1999, has been employed by the Albertsons grocery chain since 2003. His job was jeopardized after a customer saw his name and photo on a sex offender website.

Millard was forced to move repeatedly after his status as a registered sex offender was revealed, once by police and once by a local TV station. The second time, he had to fill out about 200 rental applications before finding an apartment he could rent.

Millard later bought a house in Denver, which is periodically visited by police officers seeking to verify his address. “If he is not home when they visit,” Matsch notes, “they leave prominent, brightly colored ‘registered sex offender’ tags on his front door notifying him that he must contact the Denver Police Department.”

Millard experienced name calling and vandalism, and he worries that worse may be coming. “Because of the fear and anxiety about his safety in public,” Matsch writes, “Mr. Millard does little more than go to work, isolating himself at his home.”

Eugene Knight

Eugene Knight was convicted of attempted sexual assault on a child in 2006 based on a crime he committed when he was 18. He’s a “full-time father” because he is unable to find work that pays well enough to cover the cost of child care. However, Knight is not allowed on school grounds to drop off his kids or attend school events.

Arturo Vega

Arturo Vega, who pleaded guilty to third-degree sexual assault as a juvenile but is listed in Colorado’s public database because he failed to comply with registration requirements he did not understand, has tried twice to get off the registry. Both times his petitions were rejected by magistrates who insisted he prove a negative: that he was not likely to commit another sexual offense.

The Court’s Rationale

Judge Matsch held that the lower court’s justices did not foresee the ubiquitous influence of social media, the proliferation of commercial websites peddling information from sex offender registries, or the cheap scare stories that local news outlets would produce based on that information. Those developments have magnified the life-disrupting potential of registration, as illustrated by the experiences of the plaintiffs in this case.

Judge Matsch noted that because of the registry, these men face “a known, real, and serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public…regardless of any threat to public safety based on an objective determination of their specific offenses, circumstances, and personal attributes.”

By forcing sex offenders into this precarious situation, Judge Matsch reasoned, the state is punishing them. He noted that State or federal courts have reached the same conclusion in Alaska, Maine, Michigan, New Hampshire, Oklahoma, and Pennsylvania.

“Maybe someday the Supreme Court will stop pretending otherwise,” wrote Sullum.

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.

Increased Rape on Campus

Bellingham Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

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 Great article by Lizzie Crocker of the Daily Beast says that reports of sexual assault on college campuses have surged dramatically in the past 15 years, according to a new federal study, while all other reported on-campus crimes have decreased.

Importantly, Crocker acknowledges that the 205 percent increase in reports of sexual assault — from 2,200 in 2001 to 6,700 in 2014 — does not necessarily confirm the campus rape epidemic narrative perpetuated by high profile cases like that of convicted rapist Brock Turner and Alec Cook, who was recently expelled from the University of Wisconsin after being charged with sexually assaulting multiple women.

In fact, the Education Department’s new study may indicate progress in combating the stigma of silence around sexual assault on college campuses.

Conducted by the National Center for Education Statistics and the Justice Department, the new study looked at data collected under the Clery Act, a law which requires colleges and universities to report to the federal government all sex crimes on or adjacent to campus that are reported to school authorities.

Crocker reports that because sexual assault is one of the most underreported crimes, some advocates say that these figures likely underestimate the prevalence of sexual assault on campus.

“They’re similar to law enforcement statistics on sex offenses in that they’re not an accurate representation of the magnitude of the problem,” said Christopher Krebs, lead author of the National Institute of Justice’s’ 2007 Campus Sexual Assault Study—the source of the widely cited “one in five” figure that has since been challenged. (Krebs himself has previously said that the number is “not a nationally representative statistic.”)

Krebs has since co-authored the Campus Climate Survey Validation Study (CCSVS), which surveyed 23,000 students at nine colleges from 2014 to 2015 and compared their findings to Clery Act data. Released last January, the study found that participants reported 2,380 rapes compared to the 40 rapes reported under the Clery Act by the same nine schools during that 2014-2015 period.

“770 of these rapes occurred on campus, and only 160 of them were reported to authorities who would have been required to report them under the Clery Act,” said Krebs.

Crocker reports that when weighing their data against Clery Act requirements, which only counts reported rapes that occured on or adjacent to campuses, the CCVS survey counted only 60 rapes—not a significant difference from the 40 rapes reported by the nine schools in Clery Act data.

According to Krebs, the discrepancy between the 2,380 rapes reported by CCVS survey participants at nine schools and the 40 rapes reported under the Clery Act by those schools shows that the law’s standards are too narrow.

“To fully grasp the prevalence of campus sexual assault, you need survey data that are collected in a reliable and methodologically rigorous manner,” he said.

Meanwhile, the Association of American University Women (AAUW) recently analyzed federal data collected between 2014 and 2015—which comprises part of the latest government study—and found that 89 percent of college campuses reported zero incidents of rape during that time period.

“We’ve always emphasized that zero is a red flag, and we know that the reported incidents are just the tip of the iceberg,” said Anne Hedgepeth, the AAUW’s government relations manager. “Schools are out of touch with reality if they continue to claim that they have no sexual violence on their campuses,” she added. “It simply doesn’t square with a lot of research on campus sexual assault.”

Indeed, nearly 100 colleges and universities reported at least 10 incidents of rape in 2014, according to federal data, with four Ivy League schools — Brown, Dartmouth, Stanford, and Harvard — listed among the worst offenders.

Still, Hedgepath emphasized that the increased reports of sexual assault in the latest Education Department study—which included “fondling” in its definition of sexual assault for data collected between 2014 and 2015—suggests victims feel increasingly safer reporting campus sexual assault.

“There may still be a lot of ‘zero incidents’ on college campuses, but it’s a positive thing that more students are coming forward to report their assaults,” she said.

Crocker reports that both Hedgepath and Krebs stressed that climate surveys about campus sexual assault conducted by universities (or looking closely at specific universities) can shed light on the most effective methods of combat sexual violence within those communities.

“Asking students about their experiences can show schools where their Clery Act numbers may be falling short on what’s really happening on their campuses,” said Hedgepath Indeed, sexual assault statistics vary across universities just as they vary across in cities across the country. According to federal data, Brown University

“It’s really easy for media outlets to pick a number like the ‘one in five’ statistic” as indicative of campus sexual assault on a national scale, said Krebs. But that figure differs from school to school.

“Universities need to understand sexual assault in their individual communities to adequately address it, and rigorous survey data are the only thing that accurately reflect the scope of the problem.”

My opinion? Rape is awful. Our college youth who experiment with drugs and alcohol unknowingly create a party atmosphere which can lead to sexual assaults. Fortunately, colleges know that educating students is the most important steps toward prevention. If you, a friend or family member are accused of sexual assault, then immediately contact an experienced criminal defense attorney. Chances are, the matter is being investigated by police. Hiring experienced counsel can preserve your rights and ensure your defenses in the face of these terrible accusations.

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.

Sex Offenders & Cyberspace

Bellingham Defense Attorney, Computer Crimes, Constitutional Rights, felony, First Amendment, Sex Crimes, Skagit County Criminal Defense, Social Media, United States Supreme Court, Whatcom County Criminal Defense, , ,

Sex offenders active on social media in Lafayette despite ban

In Packingham v. North Carolina, the United State Supreme Court outlawed a North Carolina statute that makes it a felony for a registered sex offender to access a commercial social networking web site. The statute restricts lawful speech in violation of the First Amendment.

BACKGROUND FACTS

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. North Carolina has prosecuted over 1,000 people for violating this law.

The Defendant was charged after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner’s motion to dismiss the charges on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down the statute on First Amendment grounds, however, the North Carolina Supreme Court ended up reversing the decision.

The United States Supreme Court granted review on the issue is whether the Carolina Statute was permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.

COURT’S ANALYSIS & CONCLUSION

The U.S. Supreme Court held that the statute impermissibly restricts lawful speech in violation of the First Amendment.

First, the Court reasoned that the First Amendment allows all persons have access to places where they can speak, listen, reflect, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds to users engaged in a wide variety of protected First Amendment activity on any number of diverse topics. Reno v. American Civil Liberties Union, 521 U. S. 844, 870. The Court stated that the Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow. Indeed, the Court expressly proceeded very carefully in its analysis:

“Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

That said, the Court bluntly reasoned that the statute is not narrowly tailored to serve a significant governmental interest.  Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, and that a legislature may pass valid laws to protect children and other sexual assault victims.

“Two assumptions are made in resolving this case,” said the Court. First, the law applies to commonplace social networking sites like Facebook, LinkedIn, and Twitter. Second, the First Amendment permits a State to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

However, the Court reasoned that even with these assumptions, the North Carolina statute enacts unprecedented prohibitions in the scope of First Amendment speech it burdens:

“Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

The Court said that even convicted criminals might receive legitimate benefits from the social media for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.

Consequently, the Court reasoned that North Carolina failed to prove that its sweeping law was necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims. “No case or holding of this Court has approved of a statute as broad in its reach.” With that, the U.S. Supreme Court reversed and remanded Mr. Packingham’s criminal conviction.

My opinion? Excellent decision. Granted, nobody wants anyone using the internet for predatory purposes. Nevertheless, its simply unconstitutional to totally prohibit people – even convicted sex offenders – from using the internet and social media. There’s plenty of spyware, child molestation sting operations and government internet monitoring happening on the internet to reduce the risk of predatory behavior. There’s no need for the Government to make statutes which violate Constitutional rights.

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.

Opening the Door

Bellingham Defense Attorney, Evidence, felony, Ineffective Assistance, Jury Trial, Opening the Door, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Wafford, the WA Court of Appeals that a defendant’s counsel “opened the door” to suppressed evidence during opening statement, and that the proper remedy was to admit evidence that the court had previously ruled inadmissible.

FACTS & BACKGROUND

The incidents began years before. In 2005, T.H.’s mother heard that eight-year-old T.H. had told a friend that something inappropriate happened with Mr. Wafford. After reporting to police, T.H.’s mother took T.H. to be interviewed at Dawson Place, the Snohomish County Center for Child Advocacy. There, a child forensic interview specialist talked with T.H., and their conversation was video-recorded. T.H. did not make a specific disclosure of sexual abuse by Wafford, though she did appear to nod affirmatively in response to one question about inappropriate sexual contact. The State did not investigate further or charge Wafford.

However, Mr. Wafford continued to sexually abuse H.F. as well as her sister T.H. Eventually, the State charged Wafford with crimes against both T.H. and H.F.  As to T.H., Wafford was charged with first degree rape of a child, first degree child molestation, and first degree incest. As to H.F., Wafford was charged with first degree rape of a child, first degree child molestation, and third degree child molestation.

PRE-TRIAL SUPPRESSION OF VIDEO INTERVIEW

Before trial, the court conducted a child hearsay hearing at which it concluded that the 2005 recorded interview of T.H. was inadmissible. The court reasoned that because T.H. never actually described an act of sexual contact, her statements were not admissible under the child hearsay statute.

TRIAL

During defense counsel’s opening statement, she referred explicitly to the video of T.H.’s interview: “Mariyah brought both H.F. and T.H. to Dawson Place in 2005. Nova Robinson interviewed on video T.H., but T.H. denied that anything was happening to her.” The State did not object.

After opening remarks, the State requested that the court admit the interview video that had been previously excluded. The State argued that when defense counsel mentioned the video, she opened the door to its admission. The court found that defense counsel opened the door and admitted a portion of the video. Ultimately, the jury found Wafford guilty of first degree child molestation of T.H., but was unable to reach a verdict on the remaining counts. The court sentenced Wafford to 68 months in prison.

Wafford appealed on the argument that, as a matter of law, comments made by counsel during opening statements cannot open the door to otherwise inadmissible evidence.

ANALYSIS AND CONCLUSION

The Court reasoned that (1) a party who introduces evidence of questionable admissibility may open the door to rebuttal with evidence that would otherwise be inadmissible, and (2) a party who is the first to raise a particular subject at trial may open the door to evidence offered to explain, clarify, or contradict the party’s evidence. State v. Jones, citing 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14, at 66-67 (5th ed.2007).

With that background, the Court addressed Wafford’s argument that because a comment made during an opening statement  is not evidence, it cannot open the door pursuant to State v. Whelchel and  Corson v. Corson.

However, the Court distinguished these cases. First, it reasoned that Whelchel does not support the broad proposition that opening statements cannot open the door because the evidence in question in Whelchel was admissible when the parties made opening statements. Second, the Corson case was distinguishable because in that case the trial court wrongfully admitted irrelevant and prejudicial evidence in response to an improper opening statement when other more effective means of ensuring a fair proceeding are available. Consequently, the Corson case did not hold that opening statements can never open the door to otherwise inadmissible evidence.

Next, the Court rejected Wafford’s argument that comments made during opening statements cannot open the door. First, such a rule would be contrary to the general rule permitting trial courts the discretion to determine the admissibility of evidence. Second, whether the issue arises from the statement of counsel or the testimony of a witness is immaterial to the question faced by the trial judge: to what extent, if any, has the statement compromised the fairness of the trial and what, if any, response is appropriate:

“In answering this question, the trial judge should have a range of options at his or her disposal. A judge may admonish the jury to disregard certain statements or reiterate its instruction that opening statements are not evidence. The judge may allow testimony about otherwise inadmissible evidence, while continuing to exclude the exhibit or document which contains the evidence. Or the judge may find that a party has opened the door to otherwise inadmissible evidence. The appropriate response is that, which in the discretion of the trial judge, best restores fairness to the proceeding.”

Finally, the Court rejected Wafford’s argument that the trial court mistakenly admitted the recording because it was inadmissible hearsay and therefore incompetent evidence.  Under ER 801(d)(1)(ii), a statement is not hearsay if “the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is… consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. . . .” Here, however, the victim testified. The court concluded her affirmation of Wafford’s unlawful sexual conduct was consistent with her testimony and is thus not hearsay under ER 801(d)(1).

With that, the Court upheld Wafford’s conviction and sentencing.

My opinion?

It is well settled in Washington that a party that introduces evidence of questionable admissibility runs the risk of “opening the door” to the admission of otherwise inadmissible evidence by an opposing party.

For this reason, it is mandatory that attorneys exercise extreme discretion with their comments and questions during trial. Defense attorneys must avoid discussing evidence they work so hard to suppress. Not only can one “open the door” during direct and cross examination of witnesses, but also opening statements.

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.

Incomplete & Misleading Search Warrant

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Franks Hearing, Search and Seizure, Search Warrant, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In United States v. Perkins, the Ninth Circuit Court of Appeals held police officers must submit copies of explicit images that the officer believes gives probable cause for a search warrant for child pornography to the judge who is considering the search warrant application so the judge can independently determine whether the nude photographs are sexually suggestive.

BACKGROUND FACTS

Canadian Investigation

On December 29, 2012, Charles Perkins, a then-52-year-old citizen of the United States, was traveling through Toronto International Airport on his way home to Washington State after taking a trip to Chile with his wife and mother-in-law. Canadian Border Services Agency(“CBSA”) officers stopped Perkins after learning that he was a registered sex offender. Perkins had a 1987 first-degree incest conviction and a 1990 first-degree child molestation conviction.

A CBSA officer searched the laptop that Perkins was carrying and, in a folder labeled “cperk,” found two images that he believed to be child pornography. A Peel Regional Police (“PRP”) officer also reviewed the images and, based on his review, arrested Perkins for possession of child pornography. CBSA authorities seized the laptop, along with a digital camera and a memory card.

The next day, Canadian police obtained a search warrant and searched Perkins’ luggage. Constable Ullock searched the laptop and found the two images that the CBSA officer had originally discovered.  After reviewing the images, Constable Ullock concluded that they did not constitute child pornography under Canadian law. In his report of the investigation, he describes the two images as follows:

IMAGE #1 Filename 997.jpg Description: This is a Caucasian female that I would estimate to be between the ages of 13 to 15 years of age. The image shows her only from the mid torso up, including her face. The girl appears to be nude and her breasts are clearly visible . . . . In spite of the fact that this girl is under the age of 18, her breasts are not the dominant feature of the image, and there is no obvious sexual purpose to the image. Therefore this image does not meet the Canadian Criminal Code definition of child pornography.

IMAGE #2 Filename 989.jpg Description: This is an image of a Caucasian female that I would estimate to be between the ages of 13 to 14 years of age. This girl is sitting and appears to be taking a picture of herself by holding out a camera with her right arm slightly above her head looking down on her. . . . This girl is completely nude and towards the bottom of the picture a small portion of her vagina can be seen. . . . However in this photo the view of the girls’ [sic] vagina makes it a minor aspect of the photo, and her hair drapes over much of her breasts, which decrease[s] their prominence. Again there is no clear and obvious sexual purpose to the picture, which means it does not meet the Criminal Code of Canada definition of child pornography.

Based on Constable Ullock’s recommendation, the charge against Perkins was dropped on January 10, 2013.

American Investigation

The case was forwarded to Special Agent Tim Ensley of the United States Department of Homeland Security. Agent Ensley received the two images for first-hand review on January 14, 2013. Ensley applied for a search warrant. In his affidavit, Ensley explained that Canadian officers stopped Perkins because of his prior convictions and arrested him after reviewing the images. Also, Ensley’s description of the second image was far different than the Canadian Constable’s:

IMAGE #2 Filename 989.jpg Description: This color image depicts a white female (hereinafter referred to as “child victim”) sitting on what appears to be a bed with one arm stretched out taking a picture of herself. The child victim is completely nude and can be seen in the image from her upper thigh area to the top of her forehead. The child victim’s breasts and genital area are clearly visible. . . . The child victim is young in appearance and appears to be between twelve and fourteen years of age.

Agent Ensley concluded that the second image (hereinafter referred to as the “989.jpg image”) met the federal definition of child pornography. However, his warrant application did not include copies of either image. Also, Ensley failed to state that the charge in Canada had been dropped pursuant to Constable Ullock’s determination that the images were not pornographic. On January 16, 2013, an American magistrate issued the warrant. Officers arrived at his home and confiscated his computers

The Search and Franks Hearing

The search pursuant to the warrant revealed several images of child pornography on Perkins’ computers, and he was charged with one count of receipt of child pornography and one count of possession of child pornography. Perkins moved to suppress the evidence, arguing that the warrant lacked probable cause. Alternatively, Perkins argued that Agent Ensley deliberately or recklessly omitted material facts from the affidavit, entitling him to a Franks Hearing under Franks v. Delaware, 438 U.S. 154 (1978).

For those who don’t know, a Franks Hearing is a hearing to determine whether a police officer’s affidavit used to obtain a search warrant that yields incriminating evidence was based on false statements by the police officer. The district court denied the motion for a Franks Hearing in its entirety.

On June 6, 2013, Perkins conditionally pleaded guilty to one count of receipt of child pornography. The district court sentenced Perkins to an 180-month term of imprisonment. Perkins appealed.

THE APPEAL

The Court of Appeals examined whether the search warrant contained purposefully or recklessly false statements or omissions. To prevail on a Franks challenge, the defendant must establish two things by a preponderance of the evidence: first, that the officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant, and second, that the false or misleading statement or omission was material, i.e., “necessary to finding probable cause. If both requirements are met, the search warrant must be voided and the fruits of the search excluded.

Here, the Court of Appeals held the lower court mistakenly denied Perkins’ motion to suppress. It reasoned that an officer presenting a search warrant application has a duty to provide, in good faith, all relevant information to the magistrate. Here, Agent Ensley omitted from the search warrant application: (1) the fact that Canadian authorities dropped the child pornography possession charge against Perkins because the images were not pornographic; (2) important portions of Constable Ullock’s description of the 989.jpg image; and (3) copies of the images.

“By providing an incomplete and misleading recitation of the facts and withholding the images, Agent Ensley effectively usurped the magistrate’s duty to conduct an independent evaluation of probable cause,” said the Ninth Circuit. Therefore, Agent Ensley omitted relevant information from the affidavit that resulted in the misleading impression that image 989.jpg was unequivocally child pornography.

Furthermore, the Ninth Circuit held the warrant application was unsupported by probable cause; and that his 20-year prior convictions failed to make it more likely that child pornography would be found on Perkins’ home computers.

Finally, the Ninth Circuit reasoned that the two images found in Perkins’ laptop computer did not establishe a fair probability that there was child pornography on Perkins’ home computer in Washington:

“Other than the fact that the subject is nude, the image lacks any traits that would make it sexually suggestive . . . The subject is not posed in a sexual position with, for example, “her open legs in the foreground . . . She is not pictured with any sexual items. She is sitting in an “ordinary way for her age.” Indeed, if the subject were clothed, this would be a completely unremarkable photo. Viewing the image as a whole, we conclude, under the Dost six-factor test, that it does not depict the ‘lascivious exhibition of the genitals or pubic area.'”

With that, the Ninth Circuit reversed the district court’s denial of the motion to suppress evidence obtained pursuant to the search warrant, and vacated Perkins’ conviction. The case is remanded for further proceedings consistent with this opinion.

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.

Interpreting Gone Wrong

Bellingham Defense Attorney, Constitutional Rights, Interpreter, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Unlawful Imprisonment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for foreign language interpreter terrible inaccurate bad

In State v. Aljaffar, the WA Court of Appeals held that although the court failed to (1) appoint a certified Arabic interpreter during Mahadi Aljaffar’s felony trial, and (2) failed to make a good cause finding prior to utilizing the services of an uncertified interpreter, the defendant nevertheless failed to establish prejudice because he failed to adequetely preserve the Constitutional issues for appeal. Therefore, his convictions were affirmed.

BACKGROUND FACTS.

Defendant Mahadi Aljaffar is a Saudi Arabian national living in the United States on a
student visa. His primary language is Arabic. He was charged in Spokane County
Superior Court with several felony sex offenses arising from incidents involving two
separate women inside a nightclub bathroom.

On the morning of Mr. Aljaffar’s trial, the State said it was unable to obtain the assistance of a certified Arabic interpreter. Washington has only one certified Arabic interpreter and that individual resides in the Seattle area. The State claimed this circumstance made arranging for the assistance of a certified interpreter logistically difficult. Rather than proceed with a certified interpreter, the State proposed proceeding to trial with an interpreter named Imad Beirouty. Mr. Aljaffar objected. The Court overruled his objection. Aljaffar was forced to proceed with the available interpreter. However, the court never made any findings with respect to whether the State had established good cause to proceed without a certified interpreter.

At trial, Mr. Aljaffar testified in his own defense. He denied assaulting the two
female victims, explaining that he is not interested in women because he is gay. He
testified he believed the bar where the assault took place was a gay bar and he did not
realize the bathroom in question was a women’s bathroom.

During his testimony, Mr. Beirouty frequently utilized a third person narrative in
recounting Mr. Aljaffar’s testimony. For example, when Mr. Aljaffar’s attorney asked
why he mistakenly chose to use the women’s bathroom, the interpreter stated, “He saw
two bathroom. There is one bathroom with more privacy than the other one.” Also, on cross-examination, the prosecutor asked Mr. Aljaffar whether he was the only male that entered the women’s bathroom. The interpreter Mr. Beirouty responded, “He observed two-two men dressing like women go into the bathroom.” Also, at other times during Mr. Aljaffar’s testimony, Mr. Beirouty provided commentary on what Mr. Aljaffar was saying, rather than interpretation.

The jury found Mr. Aljaffar guilty of two counts of indecent liberties by forcible compulsion and one count of unlawful imprisonment with a sexual motivation.

THE APPEAL.

Mr. Aljaffar filed a timely appeal. The arguments on appeal focus solely on the adequacy of the court appointed interpreter.  At issue is whether the trial court’s use of Mr. Beirouty as an interpreter violated Mr. Aljaffar’s statutory and constitutional rights.

COURT’S DECISION AND ANALYSIS.

Defendant Failed to Exercise His Constitutional Right to a Certified Interpreter.

The Court began by saying that non-English speakers involved in court proceedings are entitled to the assistance of a court-appointed interpreter. This right is guaranteed both by Washington statute and the United States Constitution.  Such a right is implied in the Fifth, Sixth and Fourteenth Amendment.

In light of these rights, however, during trial Mr. Aljaffar only voiced one objection to the use of Mr. Beirouty as an interpreter. Also, while Mr. Aljaffar adequately informed the trial court of his statutory concerns, he never alerted the court to any constitutional issues.

Furthermore, neither Mr. Aljaffar nor his attorney ever said there were misunderstandings with the interpreter or a breakdown in communication. Because the trial court was never asked to address any constitutional concerns, it was never provided the opportunity to remedy problems with Mr. Beirouty’s services prior to the jury’s verdict.

There Was No Good Cause to Excuse Certified Court Interpreter.

The Court addressed the issue of whether the trial court had good cause to excuse a certified interpreter from the proceedings. Here, good cause did not exist to not use a certified interpreter because Mr. Aljaffar was charged with serious felony offenses:

“Not only did he face substantial prison time, his immigration status made him vulnerable to deportation. Given the nature of Mr. Aljaffar’s legal proceedings, the State was obliged to make a substantial, good faith effort to obtain the services of a certified interpreter. There is no record this took place.”

Having determined good cause did not justify the use of an uncertified interpreter, the Court next tumed to the question of remedy.

There Was No Prejudice to the Defendant.

On this issue, the Court held that the trial court’s failure to comply with the certification requirements of RCW 2.43.030 was not prejudicial. Basically, despite having the assistance of counsel and a certified interpreter, Mr. Aljaffar did not present any evidence at the reference hearing and did not challenge Mr. Beirouty’s testimony that he and Mr. Aljaffar had no problems communicating. “Given these circumstances, Mr. Aljaffar’s argument that inadequacies existed outside of his trial testimony lacks factual support,” said the Court.

CONCLUSION.

The Court concluded by saying that the failure to enlist the services of a certified interpreter without good cause was a serious violation. Given the fact that Mr. Aljaffar testified and placed his credibility before the jury, inadequate interpretation could have impacted the jury’s verdict.

Nevertheless, the Court was also satisfied Mr. Aljaffar was not prejudiced by the use of an uncertified interpreter. With that, Mr. Aljaffar’s conviction was affirmed.

My opinion? It’s difficult to say Mr. Aljafar was not prejudiced. Although his defense attorney apparently failed to perfectly preserve the Constitutional issues, he did adequately mention the statutory concerns; which, in my mind, are ultimately rooted in protecting Constitution rights.

Indeed, the fact that interpreter issues were made a matter of record at all by defense counsel should have been enough to preserve the Constitutional issues for appeal. The fact of the matter is, there was an interpreter problem. Period. Otherwise, we’re substituting form over substance and sacrificing Constitutional rights in the process. Hopefully, this case gets appealed.

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, , ,

Image result for racist juror

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.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

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Suite #1420
Bellingham, WA 98225

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Mount Vernon, WA 98273

Phone: (360) 746-2642
Fax: (360) 746-2949

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