Category Archives: Sex Crimes

State v. Strange: Was the Jury “Tainted” or Impartial?

Bellingham Defense Attorney, Due Process, felony, Ineffective Assistance, Jury Selection, Jury Trial, Juvenile, police, Pretrial Investigations, Sex Crimes, Sixth Amendment, voyeurism, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Strange, the WA Court of Appeals Division II decided the defendant’s right to a fair and impartial jury was not violated by a prospective jurors’ statements concerning their own prior experiences with child molestation.

Here, defendant George Strange was accused of Child Molestation Second Degree and Voyeurism. from 2011 to 2013, Strange lived with his wife and his wife’ s children, who are juveniles. Here, juvenile J.M. was 12 years old when Strange allegedly fondled her breasts one night. He explained he was giving her a breast examination.

During jury selection, the court and attorneys asked the prospective jurors about their personal experiences with child molestation. Although most of the jurors had no personal experience with child molestation, almost one-third of the jurors knew someone who was either a victim or had been charged with child molestation. In response to the court’ s questioning, juror no. 54 stated,

JUROR: “Um — what I said before, like, I know people that I know. Like it’ s not an easy accusation to make. Like, it is hard for people (inaudible). It’ s like if accusations were made there’ s something behind that . . . I don’ t — like, I don’t have a ton of experience but it has just been my experience people don’ t make that accusation, you know, for no reason. Like, I feel like if an accusation was made there had to be something that had happened.”

Juror no. 54 was excused for unrelated hardship reasons.

During trial, other witnesses testified to Strange’s odd behavior around J.M. Additionally, the State played a recorded video of Strange being interviewed by a police detective who commented on Strange’s behavior during the interview. Finally, Strange did not call any witnesses nor did he testify. At the end of trial, Strange was found guilty on all counts.

On appeal, Strange argued that his right to a fair trial by an impartial jury was violated because of prospective jurors’ statements concerning their own prior experiences with child molestation, either in their families or among friends or acquaintances, which tainted the entire jury venire.

The court rejected Strange’s arguments. It reasoned that article I, § 22 of the Washington Constitution guarantees a criminal defendant the right to a fair trial by unbiased jurors.” Also, the Sixth Amendment to the United States Constitution also guarantees the right to a fair trial by impartial jurors. Here, no prospective juror professed any expertise about sexual abuse cases. Therefore, there is no concern about a prospective juror with more credible, authoritative knowledge tainting the rest of the jury pool.

Second, most jurors were merely questioned about their experiences with child molestation and asked if they could remain impartial. Some jurors admitted to a potential bias, most said they could apply the court’ s instructions impartially, and two prospective jurors asked for individual voir dire, preferring not to talk about their experiences in front of the rest of the jury pool. Consequently, the Court of Appeals decided that Strange received a fair trial by an impartial jury.

Finally, the court rejected Strange’s argument that his defense attorney was ineffective because he failed to object to the admission of Strange’s recorded interview with police. The court reasoned that because defense counsel’s failure to object was a legitimate trial tactic, it cannot be said that Strange’ s trial counsel’ s performance was deficient. Therefore, his claim for ineffective assistance of counsel fails. The decision of Strange’s attorney to not play the video was a legitimate trial tactic, and did not amount to ineffective assistance of counsel.

My opinion? Oftentimes, during jury selection, prospective jurors say things out loud which may appear to discredit the defendant, especially when the charges are particularly galvanizing. A defense attorney must be cautious in proceeding with these jurors. A good technique is to ask the juror to extrapolate “what they mean” if the juror says they have difficulty being objective, and/or if the juror says the defendant “must be guilty of something.” The attorney can strike the juror for cause because the juror could be biased against the defendant.

Still, it’s difficult to “unring the bell,” so to speak, when a prospective juror says controversial things which may hurt the defendant’s chances at trial if the rest of the jury pool believes that juror’s statements. This is the essence of “tainting the jury,” which is reversible error and should be avoided at all costs. In response, another good tactic is to inquire if other potential jurors feel the same as the juror who aired their grievances. Find someone shaking their head “No.” Ask them why.

Chances are, they’ll say something about giving the defendant a fair trial, or presumption of innocence, or something like that. Test the waters. Guide the jurors back toward their oath that they MUST presume the defendant not guilty throughout trial. Remind them that if they serve as jurors, they’re under oath to withhold their personal biases and reserve judgment until after hearing all of the evidence.

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. Abitia: Sexual Assault Advocate’s Testimony Was Improper

Bellingham Defense Attorney, Drug Offenses, felony, Jury Trial, Perpetrator Profile Testimony, Rape, Sex Crimes, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Court Says Eyewitness Testimony in Crash Case Was Improper but Harmless | The Legal Intelligencer

In State v. Abitia, the WA Court of Appeals Division I decided that it was improper testimony and reversible error that an expert witness for the State – a Sexual Assault Advocate, no less – testified that people who molest children often do not tell the truth and when subjected to polygraph testing and often admit to committing more sexual abuse than the child victim reported.

The facts were such that defendant Raymond Abitia went to trial on one count of Rape of a Child in the Second Degree and one count of Distribution of a Controlled Substance to a Minor. The alleged victim was Abitia’s daughter, KM. At trial, KM disclosed the abuse after an incident in Skagit County that occurred shortly after she turned 14 years old.

One of the State’s witnesses was Joan Gaasland-Smith, the sexual assault case specialist – also called a Sexual Assault Victim Advocate – for the Whatcom County Prosecutor’s Office. Gaasland-Smith was qualified as an expert to discuss child sex abuse in general. For those who don’t know, “Sexual Assault Victim Advocates” are professionals trained to support victims of sex crimes. Advocates offer victims information, emotional support, and help finding resources. Sometimes, advocates attend court and pretrial interviews with victims. Advocates may also contact organizations, such as criminal justice or social service agencies, to get help or information for victims. Some advocates staff crisis hotlines, run support groups, or provide in-person counseling.

Gaasland- Smith testified that it is not unusual for children to delay disclosure. She said while there is no single reason that applies in every case, there are many reasons a child may not immediately disclose. A perpetrator may have offered the child rewards, money, or special attention in exchange for silence. The child may value the relationship with the perpetrator, fear being seen as abnormal, or think that the sexual contact feels good.

Up to this point, there was nothing particularly objectionable about Gaasland-Smith’s testimony. KM did not disclose abuse until the Skagit County incident and even then she resisted disclosing it to the police. Abitia’s defense strategy was to challenge KM’s credibility. It is generally permissible for a jury to hear expert testimony explaining why delayed disclosure does not necessarily mean the victim lacks credibility.

But in response to the prosecutor’s next question, Gaasland-Smith began to veer toward generalities about perpetrators. She said, “Kids can be told by perpetrators that, urn, that other adults believe adults, they won’t necessarily believe a child.” Abitia objected to “this whole line of questioning as to what do other sexual predators do. Abitia’s attorney objected to the testimony.

The court overruled the objection, stating that “what kids can be told by perpetrators … is appropriate testimony for an expert witness.” The court warned the prosecutor to “be very cautious so that generalization does not directly or indirectly suggest to the jury that that is what has happened” in this case.

Gaasland-Smith went on to discuss reasons why children may be afraid to disclose. She testified that most of the time, children do not disclose everything all at once. When asked about the basis of her knowledge, she answered that sexual deviancy evaluations show it is common to discover that “more happened than the child ever told.” In the course of this answer, Gaasland-Smith testified that a sexual deviancy evaluation includes a lie detector test because “oftentimes people who do this kind of thing don’t tell the truth.”

The jury convicted Abitia as charged. The case was appealed on the issue of whether the expert witness’s testimony was improper.

The Court of Appeals reasoned “Perpetrator Profile Testimony” is improper because it “clearly carries with it the implied opinion that the defendant is the sort of person who would engage in the alleged act, and therefore did it in this case too.” Gaasland-Smith’s line of testimony about what perpetrators do should have been cut off when the objection was first raised. Her opinion that sex offenders lie about their conduct implied that Abitia was lying when he denied having sexual contact with KM. No witness may testify as to an opinion on the veracity of the defendant, either directly or inferentially.

The Court also reasoned that Gaasland-Smith’s testimony that offenders can be trusted to tell the truth only when they are subject to lie detector tests was also unduly prejudicial. Ordinarily, polygraph evidence is inadmissible absent stipulation by both parties because the polygraph has not attained general scientific acceptability. Therefore, Gaasland-Smith’s improper reference to lie detectors bolstered her opinion that sexual offenders, as a class, are liars.

The Court of Appeals reversed the conviction.

My opinion? Excellent decision. It indeed invades the providence of the jury for experts to discuss “Perpetrator Profile Testimony” in the context of jury trials. It sways jurors far too much, and leads to unfair jury trials like the one above.

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. Barry: Defendant’s In-Court Demeanor Leads to Conviction

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Jury Trial, Self-Incrimination, Sex Crimes, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Defendant collapses in court after guilty verdict - YouTube

In State v. Barry, the WA Supreme Court held that a lower trial court properly answered a jury’s question regarding whether it may consider observations of the defendant’s actions and demeanor during the court case as “evidence” by stating, “Evidence includes what you witness in the courtroom.”

Here, defendant Robert Barry went to jury trial facing two counts of Child Molestation in the First Degree. He did not testify. After the parties rested their cases, the jury deliberated. During deliberations, the jury asked the court whether it may consider “observations of the defendant’s actions-demeanor during the court case” as “evidence.” In response, the trial court instructed the jury that “evidence includes what you witness in the courtroom.” The court record, however, contained no references whatsoever to Barry’s in-court demeanor.

The jury convicted Barry of both counts of child molestation. He appealed, claiming that the trial court’s instruction in response to a jury question violated his Fifth Amendment and Sixth Amendment rights under the United States Constitution.

The WA Supreme Court reasoned that the Fifth Amendment does not extend to the jury’s generic reference to “actions-demeanor,” and the Sixth Amendment does not transform all evidentiary errors into errors of constitutional magnitude. Consequently, no constitutional error occurred.

Additionally, the Court said that the “silence” on Barry’s demeanor makes it impossible to determine that Barry was prejudiced. Thus, neither party can “prove” one way or another whether the error was prejudicial. The court also emphasized the following:

“The trial court instructed the jury that ‘the fact that the defendant has not testified cannot be used to infer guilt or prejudice against him in any way,’ and that its instructions are to be taken as a whole. A jury is presumed to follow the court’s instructions, and the record presents no indication that the jury failed to heed the court’s instruction regarding the defendant’s failure to testify in this case.”

 With that, the WA Supreme Court upheld the trial court and found Mr. Barry guilty.

My opinion? I agree with Justice Johnson’s dissent. Although there’s no record of Barry’s demeanor during trial, we do know that before trial began, the court advised Barry that he should refrain from any display of emotion. It advised that everyone in the courtroom remain stone-faced throughout the trial and that no one should show any reaction to the children’s testimony. The court explained to Barry that such a showing of emotion could ”backfire” on his case.

Justice Johnson reasoned that assuming Barry complied with that instruction, his observable lack of remorse throughout trial likely prompted the question from the jury.

“By then instructing that the jury could consider Barry’s demeanor throughout trial as evidence of his guilt, the court put him in the constitutionally intolerable position of either waiving his constitutional right to refuse to testify, so that he could explain his remorseless attitude throughout trial or leave the jurors to formulate their own inferences about his behavior.”

I agree. The defendant was placed between a rock and a hard place. His unenviable posititon probably may have affected the quality of his defense. Unfortunately, we don’t know because the court record says nothing about his demeanor. More than anything, it’s THIS – the lack of court record regarding the defendant’s demeanor – which is so disturbing. Justice Johnson articulated this same belief:

After the defense has rested its case, and after closing arguments, the trial court cannot instruct that those observations may be treated as “evidence” bearing on the determination of guilt or innocence when the defendant has had no opportunity to challenge or explain that evidence. This is akin to allowing a prosecutor to argue evidence not presented at trial or allowing a witness to testify privately without cross-examination, to the jury during its deliberations. It deprives the defendant his right to confront the evidence, and at the very least, it deprives Barry an opportunity to challenge the propriety of the use of this “evidence” in the determination of guilt.

Exactly. At best, this is a murky opinion. At worst, it violates the defendant’s rights 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.

State v. Hardtke: Court Limits Costs of Pretrial Monitoring

Assault, Bellingham Defense Attorney, Court Fines, Domestic Violence, Due Process, felony, Pretrial Investigations, Probation, Property Crimes, Rape, Sex Crimes, Washington Court of Appeals, Washington Supreme Court, , ,

Electronic Monitoring | Electronic Frontier Foundation

In State v. Hardtke, the WA Supreme Court decided that although a trial court has the authority under RCW 10.01.160 and CrR 3.2 to impose the cost of pretrial electronic alcohol monitoring, the amount is capped at $150.00.

Here, Mr. Hardtke was charged with two counts of Rape in the Second Degree, one count of Assault Second Degree, two counts of Assault Fourth Degree, and Malicious Mischief Third Degree. All were alleged to be acts of domestic violence that took place while Hardtke claimed he was blacked out from alcohol abuse.

At arraignment, the trial court imposed conditions that Hardtke not consume alcohol. To ensure his compliance with this condition, Hardtke was required to wear a transdermal alcohol detection (TAD) electronic alcohol monitoring bracelet while awaiting trial. Hardtke objected multiple times to paying for the cost of the bracelet, but he nevertheless wore the bracelet as a condition of his release.

Eventually, Hardtke pleaded guilty to amended charges, and as part of his sentence he was ordered to reimburse the county for the cost of the alcohol monitoring; which totaled $3,972.00. Hardtke objected and appealed the court’s ruling. The case ended up in the WA Supreme Court.

In reaching its decision, the WA Supreme Court reasoned that RCW 10.01.160 authorizes courts to impose “pretrial supervision” costs on both convicted and non-convicted defendants; however, it expressly limits pretrial supervision costs to $150. The court further reasoned that paying the costs was unreasonable:

Hardtke himself did not arrange for the TAD monitoring and did not agree to pay a third-party company for the service. On the record before us, the sentencing court imposed a cost on Hardtke for pretrial electronic alcohol monitoring in order ensure compliance with the release condition that he not consume alcohol. We find no support for the State’s argument under CrR 3.2.

The court further reasoned that TAD monitoring falls under the plain meaning of “pretrial supervision.” This includes work release, day monitoring, or electronic monitoring. The court emphasized that TAD monitoring operates like other monitoring devices, such as GPS (global positioning system) monitoring. It ensures compliance with the pretrial release conditions by supervising Hardtke’s conduct and reporting his blood alcohol levels. This monitoring, the court said, is functionally analogous to requiring a defendant awaiting trial to physically check in with the court or county probation officer to demonstrate that pretrial release conditions have been complied with.

The court concluded that RCW 10.01.160 limits the court’s authority to impose costs for pretrial supervision to $150. “Because we hold that the TAD monitoring costs imposed on Hardtke were for pretrial supervision, and because those costs were greater than $150, the trial court exceeded its statutory authority by imposing nearly $4,000 for Hardtke’s pretrial supervision.” The Court remanded Hardtke’s case back to the trial court with instructions that costs for pretrial supervision in this matter not exceed $150.00.

My opinion? Good decision. Defendants should not pay an arm and a leg simply to be monitored by courts, ESPECIALLY if there’s statutory authority stating that pretrial supervision shall not exceed $150. Getting access to justice is difficult enough. Good, straightforward opinion.

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. Peppin: No Privacy for Public File Sharing

Bellingham Defense Attorney, Constitutional Rights, felony, Forensics, Search and Seizure, Search Warrant, Sex Crimes, Washington Court of Appeals, , ,

The Benefits of Electronic File Transfer | GoAnywhere MFT

In State v. Peppin, the WA Court of Appeals ruled law enforcement’s warrantless use of enhanced  peer to peer file sharing software to remotely access shared files on an individual’s computer does not violate either the Fourth Amendment of the United States Constitution or article I, sec. 7 of the Washington Constitution.

In other words, an individual does not have a constitutionally protected privacy right in image files he shares with the public.

Here, defendant Casey Peppin was found guilty of three counts of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the First Degree under RCW 9.68A.670. On December 29,2011, Spokane Detective Brian Cestnik conducted an online investigation of the Gnutella network to identify persons possessing and sharing child pornography. Using peer to peer software called “Round Up” version 1.5.3, Detective Cestnik found child pornography on Mr. Peppin’s computer in a shared folder. He obtained a warrant, searched he defendant’s home and recovered the computer(s) allegedly used to view and share images of minors engaged in sexual conduct.

BACKGROUND ON “PEER TO PEER FILE SHARING”

For those who don’t know, “peer to peer file sharing” is a method of Internet communication that allows users to share digital files. User computers link together to form a network; the network allows direct transfer of shared files from one user to another. Peer to peer software applications allow users to set up and share files on the network with others using compatible peer to peer software. For instance, LimeWire and Shareaza are software applications that allow users to share files over the Gnutella network.

To gain access to shared files, a user must first download peer to peer software, which can be found on the Internet. Then, the user opens the peer to peer software on his or her computer and conducts a keyword search for files that are currently being shared on the network. The results are displayed and the user selects a file for download.

The downloaded file is transferred through a direct connection between the computer wishing to share the file and the user’s computer requesting the file. The Gnutella network gives users the ability to see a list of all files that are available for sharing on a particular computer.

F or example, a person interested in obtaining child pornographic images opens the peer to peer software application on his or her computer and conducts a file search using keyword terms such as “preteen sex.” The search is sent out over the network of computers to those using compatible peer to peer software. The results of the search are returned and displayed on the user’s computer. The user selects the file he or she wishes to download. The file is then downloaded directly from the host computer onto the user’s computer. The downloaded file is stored on the user’s computer until moved or deleted.

A peer to peer file transfer is assisted by reference to an Internet Protocol (IP) address. In general, the numeric IP address is unique to a particular computer during an online Internet session. The IP address provides a location, making it possible for data to be transferred between computers.

This is where the police work comes in: investigators can search public records on the Internet to determine which Internet provider is assigned the IP address. Investigators can contact the Internet provider and gain information about the user based on the IP address assigned to the computer.

THE INVESTIGATIONS

Here, Detective Cestnik searched the Gnutella network for “pthc,” the commonly used term for preteen hard core Internet pornography. Clerk’s Papers (CP) at 17. The results indicated that images matching the search terms could be found on a host computer with an IP address linked to Spokane. Detective Cestnik’s check of the IP address through two different Internet search engines confirmed that the IP address was in Spokane and that Qwest Communications was the provider.

Next, Detective Cestnik presented Qwest Communications with a search warrant requesting information on the IP address for the host computer. Qwest Communications advised Detective Cestnik that the IP address was connected to Mr. Peppin and provided Mr. Peppin’s address.

Detective Cestnik then obtained a search warrant for Mr. Peppin’s computer. A complete forensic investigation uncovered over 100 videos of what appeared to be minors engaged in sexually explicit conduct.

TRIAL OUTCOME

Mr. Peppin moved to suppress the computer files downloaded by Detective Cestnik during his Internet search. He maintained that law enforcement’s access and download of his computer files via the Internet was an intrusion into his private affairs and an unlawful warrantless search. The court denied Peppin’s motions to suppress. At trial, he was found guilty on all 3 counts.

COURT OF APPEALS DECISION

The legal issue addressed by the court was whether Mr. Peppin had a constitutionally protected privacy right in the image files he shared with the public. In short, the Court said, “No.”

First, federal circuit courts have consistently held that a person who installs and uses file sharing software does not have a reasonable expectation ofprivacy in the files to be shared on his or her computer.

Second, even the broader protection of the Washington State Constitution also does not offer any relief to Mr. Peppin. It stated, “What is voluntarily exposed to the general public and observable without the use of enhancement devices from an unprotected area is not considered part of a person’s private affairs.” The court emphasized that here, Mr. Peppin voluntarily offered public access to the computer files obtained by Detective Cestnik. Mr. Peppin used peer to peer software to make these shared files available without restriction. Anyone wanting to view or download the files could do so. Law enforcement’s access of these files was not an intrusion into Mr. Peppin’s private affairs.

The court summed it up:

Additionally, this is not the type of information that a citizen of this state is entitled to hold as private. The inherent nature of peer to peer software is the public sharing of digital computer files. Individuals using file sharing software cannot expect a privacy interest in files they hold open to the public. Again, Mr. Peppin’s use of peer to peer file sharing voluntarily opened this information to the public for anyone to access, including law enforcement. There is no disturbance of a person’s private affairs when law enforcement accesses shared computer files that the person holds publically available for viewing and download. Thus, there is no violation within the context of article I, section 7 of the Washington Constitution.

My opinion? Although I understand the logic – as well as the government’s desire to criminalize the sexual exploitation of minors – at what point does “private” communications end and “public” communications begin? How intrusive is the government’s technology? How often do they use the internet to spy on citizens for public safety reasons? I suppose we’ll see . . .

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. Ellison: No Right to Allocution

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Sex Crimes, Violent Crime, Washington Court of Appeals, , ,

In State v. Ellison, the WA Court of Appeals decided a defendant lost his right to give a statement at his sentencing because his lengthy presentation changed from religious songs and unrelated topics to protests of his innocence and an accusation that his attorney was lying to the court.

At a bench trial, Mr Ellison was convicted of Rape in the Second Degree and Child Molestation in the Second Degree. At his sentencing, the court invited Ellison to allocute.

For those who don’t know, “Allocution” is defined as the right of a criminal defendant to make a personal argument or statement to the court before the pronouncement of sentence. It is the defendant’ s opportunity to plead for mercy and present any information to try mitigating the sentence.

Here, Ellison sang a short religious song and spoke about various topics not clearly related to the sentencing proceeding. After making extensive remarks, Ellison began to protest his innocence and accuse his trial attorney of lying to the court. At that point, the court cut Ellison off, explained that the matters he related were irrelevant to the issues at hand, and pronounced the sentence. Ellison asked for permission to finish his remarks, but the court declined. The court imposed life imprisonment without the possibility of release. Ellison appealed.

The Court of Appeals upheld the conviction and denied Ellison’s appeal. it reasoned that the sentencing court allowed Ellison to speak for some time, cutting him off only when he began using the opportunity to testify about the facts of the case and complain about the conduct of his trial attorney. Unfortunately, those were not legitimate purposes for allocution. Because the court let Ellison speak without interruption until it was clear he was using the allocution for improper purposes, the trial court did not abuse its discretion in cutting short Ellison’ s allocution.

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.

Washington Legislature Passes Bill Supporting DNA Testing of Rape Kits.

Assault, Bellingham, Bellingham Defense Attorney, DNA, Domestic Violence, felony, Jury Trial, Legislation, Prior Bad Acts, Rape, Sex Crimes, Violent Crime, , ,

That was me on the shelf': Maryland lawmakers weigh legislation requiring rape kits be tested - Baltimore Sun

On March 2, 2015, the Washington House Appropriations committee voted “Yes” on House Bill 1068; which supports DNA testing of rape kits sitting in evidence rooms across Washington Counties. The bill passed 82-15.

Essentially, numerous Washington counties – including Whatcom County – could help find serial rapists. House Bill 1068 arrives on the heels of recent controversy that rape kit evidence containing DNA evidence has been ignored by police departments statewide.

The Bellingham Herald ran two articles on this news. One story, titled Prosecutor: Testing Evidence Kits Can Lead to Finding Repeat Rapists discussed people’s responses to House Bill 1068.

The article mentions that Prosecutors like Rick Bell of Ohio support House Bill 1068. He claims that out of 6,000 kits tested, 2,244 received a hit to a known offender in a national database. Additionally, of the rapists indicted by his his office in Cuyahoga County, 30 percent are serial rapists. “Those serial offenders were going undetected, in part because labs couldn’t process all cases, so kits involving acquaintance rapes weren’t tested,” said Bell.

Also according to the article, Western Washington University college students like Heather Heffelmire, who is working in Olympia as the Legislative Liaison for Western Washington University’s Associated Students, testified in favor of House Bill 1068 during a public hearing in January. She said one of the main legislative priorities for WWU’s student body this year is to support survivors of sexual violence. “If you think about assault on campuses, it’s not like a predator does one assault — it’s usually a pattern of behavior,” Heffelmire said. “If you’re not having these kits tested, you can’t find that out.”

Additionally, Leah Gehri, the Director of Emergency Services at St. Joseph hospital in Bellingham WA, said she thinks HB 1068 is timely. “When you think about how long DNA evidence has been around, … at one point there weren’t a lot of DNA profiles hanging out there, they just didn’t have a lot of them,” Gehri said. “Now however, 20 years later, when profiles are quite common, the likelihood that an untested kit would now match up against a perpetrator in the system is more likely than it ever has been.”

Another article from the Bellingham Herald titled, Washington Lawmaker Tries to Tackle Thousands of Untested Rape Kits in State discusses the efforts of Rep. Tina Orwall, D-Des Moines toward having House Bill 1068 passed. 

The specific language House Bill 1068 is as follows:

Substitute offered in the House on January 23, 2015, requires a law enforcement agency to submit a request for laboratory examination within 30 days of receiving a sexual assault examination kit, provided that the victim or the victim’s legal guardian has consented to analysis of the kit as part of a sexual assault investigation. Specifies that failure to comply with the 30-day deadline does not create a private right of action against the law enforcement agency and is not a basis to exclude evidence in a court proceeding or to set aside a conviction or sentence. Creates a work group to study the issue of untested sexual assault examination kits in Washington, which must file an annual report through June 30, 2018.

My opinion? As a defense attorney, I support the notion that evidence garnered from the DNA testing of rape kits could be probative, relevant and cumulative in proving that the the perpetrator had a pattern of rape. Nevertheless, I have two concerns:

First, while I understand and agree with intent to have kits processed as quickly as possible, the timelines set forth in this proposal are probably unattainable with existing resources and do not take into account the complexities of processing kits. The 30-day timeline is very problematic for crime labs and is not feasible without a huge influx of resources (equipment, personnel, and possibly larger facilities).

Second, House Bill 1068 does not take into account the multitude of legal circumstances surrounding these kits.  For example, in a number of rape cases, the identity of the involved parties is not in question and both parties affirmatively indicate a sexual act occurred. Here, the issue is consent, not identity. Consequently, DNA analysis would only confirm what is already known.

In all likelihood, the latter issue will rest on the shoulders of jury trial judges who decide pretrial motions to admit or suppress DNA evidence in rape cases. In other words, we’ll see what happens . . .

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. Barry: Whether a Defendant’s Demeanor Spells Trouble During Trial

Constitutional Rights, felony, Self-Incrimination, Sex Crimes, Washington Court of Appeals, , ,

Demeanor, Demeanor, Demeanor - Trial Practice Tips

In State v. Barry, the WA Court of Appeals decided it does NOT violate a defendant’s Constitutional rights to allow a jury to consider the defendant’s in-court demeanor during trial.

The State charged Barry with first degree child molestation (DV). The case proceeded to trial. Important to note, Barry chose not to testify. During deliberations, the jury sent a note asking the court, “Can we use as ‘evidence for deliberation,’ our observations of the defendants actions and demeanor during the court case?” The trial court instructed the jury, “Evidence is what you witness in the courtroom.” Barry objected to the jury instruction. The jury found Barry guilty as charged. Barry appealed.

The Court of Appeals reasoned that the trial judge misstated the law in giving that instruction because the defendant did not testify; and therefore, his demeanor was not evidence presented during trial.

Nevertheless, the Court of Appeals rejected arguments that Barry’s 5th Amendment rights against self-incrimination were violated. It stated, “Here, neither the State nor the trial court forced Barry to do anything with regards to his demeanor. He had full control over how he acted in the courtroom. Other than citing the Fifth Amendment, Barry does not explain how he was compelled to give evidence against himself. We hold that allowing the jury to consider the defendant’s demeanor as evidence does not violate the Fifth Amendment.”

Finally, the Court of Appeals discussed the absence of any discussion on the record regarding Barry’s demeanor. In other words, there was a lack of record on how Barry behaved. The Court said the following:

“Without any information identifying what demeanor the jury may have considered, it is impossible to know whether that consideration was favorable or unfavorable to Barry. In the abstract, a defendant’s behavior is neutral. Depending on the demeanor, a jury could draw a negative inference or a positive inference from how the defendant acts during trial. As a result, merely stating that a jury may have considered a defendant’s demeanor without any information about that demeanor cannot establish prejudice because that consideration may have favored the defendant.”

My opinion? This case is tough. I’ll agree with the Court of Appeals in saying that what we don’t know is the pink elephant in this room. I’ve had many jury trials. During preparations, I thoroughly inform defendants how to properly behave in court. And yes, it’s extremely difficult for many defendants to stay calm and stoic during trial. Most defendants are very emotional about the case, especially if they believe the State’s witnesses are lying and/or exaggerating  during testimony.

Consequently, the decision on whether to testify is a strategic one. And this decision – whatever it may be – can backfire for many reasons. Typically, jurors want to hear defendants testify. However, if a defendant does not testify, then human nature dictates that juries perceive how the defendants acts during 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.

State v. Hirschfelder: Sexual Relations Between a Student and a School Employee

Rape, Sex Crimes, Washington Supreme Court, , ,

Utah and Salt Lake City Statutory Rape Defense Attorney | Greg S. Law

In State v. Hirschfelder, the WA Supreme Court held that the term “minor” includes students between the ages of 18 and 21, rather than just those under 18.

Here, defendant Mr. Hirschfelder was  employed as a choir  teacher at a High School.  He had sexual intercourse in his office with a member of the high school choir, A.N.T., several days prior to her graduation in 2006.   At the time, Hirschfelder was 33 and A.N.T. was 18.  Hirschfelder was charged with sexual misconduct with a minor in the first degree under former RCW 9A.44.093(1)(b).   That statute provided in relevant part:

A person is guilty of sexual misconduct with a minor in the first degree when:  . . . the person is a school employee who has, or knowingly causes another person under the age of eighteen to have, sexual intercourse with a registered student of the school who is at least sixteen years old and not married to the employee, if the employee is at least sixty months older than the student.

The case made its way to the WA Supremes.  They reasoned the statute was not ambiguous in its meaning.  They also stated that several sexual misconduct  laws focus on the special  relationship between a perpetrator and a victim, even where the victim is over 18 or even 21.

“For example, we criminalize sex with vulnerable adults or adults over whom the perpetrator has supervisory authority, RCW 9A.44.050, and sex between employees of custodial institutions and those in custody.  RCW 9A.44.160.   That the legislature saw fit to criminalize sex between school employees and high school students — even those who reach the age of majority while registered as students — is a policy choice that recognizes the special position of trust and authority teachers hold over their students.” ~WA Supreme Court

Justice Johnson, is his dissenting opinion, stated the statute “should not criminalize conduct between two consenting adults where the legislature has expressly provided otherwise.”  He also stated the former statute did not criminalize sexual intercourse between a school employee and an 18-year-old adult student.

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.

Child Witness Competency

Child Competence, Constitutional Rights, felony, Jury Trial, Pretrial Investigations, Rape, Sex Crimes, Washington Supreme Court, , ,

Children Witnesses in the Criminal Courts: Recognizing Competence and Assessing Credibility

In State v. S.J.W., the WA Supreme Court held that a party challenging the competency of a child witness must show that the child is of unsound mind, intoxicated at the time of his production for examination, incapable of receiving just impressions of the facts, or incapable of relating facts truly.

S.J.W., a minor, was charged with a sex offense against a 14-year-old W.M., a developmentally delayed boy.  The State wanted W.M. to testify against S.J.W., and S.J.W. challenged W.M.’s competency to testify.  At the competency hearing, the trial judge concluded S.J.W. failed to meet his burden to establish that W.M. was not competent to testify.  The trial judge permitted W.M. to testify at the bench trial, and S.J.W. was convicted.

S.J.W. appealed.  The Court of Appeals affirmed S.J.W.’s conviction but held  that the party offering a child witness bears the burden to show the witness is competent to testify.  The Court of Appeals concluded that, although the trial judge erroneously placed that burden on S.J.W., this error was harmless.  The State challenges this holding, arguing that the trial judge properly placed the burden on S.J.W.  The WA Supremes agreed.

The WA Supremes reasoned that until 1986, former RCW 5.60.050 provided that all persons of suitable age could be witnesses except those of unsound mind, those who were intoxicated at the time of examination, and children under 10 who appeared incapable of receiving just impressions of the facts or of relating them truly.  State v. Allen, however, changed the notion.

The court in Allen concluded that the true test of the competency of a “young child” of “tender years” consists of (1) an understanding of the obligation to tell the truth, (2) the mental capacity at the time of the occurrence concerning the testimony, (3) sufficient memory to retain an independent recollection of the occurrence, (4) the capacity to express in words her memory of the occurrence, and (5) the capacity to understand simple questions about the occurrence.

In other words, all persons, regardless of age, are now subject to this rule because there is no longer any requirement that a witness be of suitable age or any suggestion that children under 10 may not be suitable witnesses.  A child’s competency is now determined by the trial judge within the framework of RCW 5.60.050, while the Allen factors serve to inform the judge’s determination.

My opinion?  I prefer having the 10-year old “cutoff age” when it comes to child testimony.  All to often, children are coached by biased adults.  I’ve conducted enough jury trials to know that children usually repeat whatever the trusted adult wants them to say.  Unfortunately, this court decision places an extra burden on attorneys – defense attorneys, undoubtedly – to show the respective child witness is incompetent to testify.

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.