Category Archives: Sex Crimes

State v. Jones: Rape Shield Statute vs. Defendant’s Right to Testify

Constitutional Rights, Due Process, felony, Jury Trial, Rape, Sex Crimes, Washington Court of Appeals, Washington Supreme Court, , ,

What Is A Rape Shield Law? | The Defence Group

In State v. Jones, the WA Supreme Court held that the Rape Shield Statute does not stop a defendant from offering evidence or cross-examining a victim about the events on the night of the alleged sexual encounter, including the victim’s sexual conduct with other individuals during a wild sex party.

Defendant Mr. Jones was charged with first and second degree rape after his niece, K.D., claimed that Jones put his hands around her neck and forcibly raped her.  At trial, the jury acquitted Jones of first degree rape but could not reach a decision on second degree rape.  Jones was tried again for second degree rape along with the aggravating factor of being an individual in a position of trust to the victim.

Jones wanted to present evidence that K.D. consented to sex during an all-night sex party.  The party included one additional woman and two additional men, cocaine and alcohol.  During this party, K.D. consented to sex with all three men (which included Jones).  The judge, citing the Rape Shield Law, would not allow Jones to introduce such evidence because it was only being introduced to attack K.D.’s credibility.

Furthermore, during the trial, the prosecutor noted that Jones was compelled to give a DNA sample (did not do so voluntarily) and that he refused to clear up matters with the police.  At the end of trial, the judge backtracked a little and claimed that it allowed Jones to present evidence that the sex was consensual (but without mentioning the sex party).   Jones was convicted and appealed.  Jones claimed that the trial court erred when it refused to allow him to present evidence of the sex party and for the prosecutor’s inappropriate comments with respect to speaking with police and giving a DNA sample.

The Court of Appeals agreed with the trial court, but the Washington Supreme Court reversed.

First, the court reasoned that the trial court violated Jones’ 6th Amendment rights by refusing to allow Jones testify about the sex party.  “Jones’s evidence, if believed, would prove consent and would provide a defense to the charge of second degree rape.”  Furthermore, since no State interest can possibly be compelling enough to stop the introduction of evidence of high probative value, the trial court violated Jones’ Sixth Amendment rights when it barred his testimony.

Second, the Court held the Rape Shield Statute did not apply.  Washington’s rape shield law provides:

Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection (3) of this section, but when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when the past behavior is material to the issue of consent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense.

Here, the Court decided the Rape Shield Statute protects victims from testifying about past sexual behavior.  In this case, however, Jones was attempting to introduce evidence of present sexual behavior.  Thus, to deny such evidence under the rape shield law would be to read out the term past.   Furthermore, since the evidence that Jones sought to be introduced involved Jones’s defense and version of what occurred the night of the crime, the denial of such evidence was NOT harmless error.  Jones is entitled to a new trial.

My opinion?  Under the circumstances, the court made a well-reasoned decision.  Their interpretation of the Rape Shield Statute appears correct: although one cannot admit evidence of the victim’s past sexual history, the statute does not prevent present sexual history from being admitted into evidence.  This evidence seems especially relevant when the victim is engaged in exploits in the manner described in this case.  Good decision.

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

State v. Dow: Corpus Delicti vs. RCW 10.58.03

Constitutional Rights, Corpus Delicti, felony, Jury Trial, Rape, Sex Crimes, Uncategorized, Washington Supreme Court, , ,

Important Facts about Corpus Delicti

In State v. Dow, the WA Supreme Court held that RCW 10.58.035 does NOT change the corpus delicti rule that the State must prove every element of an alleged crime by evidence independent of the defendant’s statement.

 Defendant Mr. Dow was charged with with first degree child molestation.  The victim was a three year old female, and too young to testify.  Consequently, her statements to others about the alleged offense were inadmissible.  No persons other than Dow and the child were present at the time of the alleged offense.  During a recorded police interview, Dow made statements regarding the events surrounding the alleged molestation.

The trial court found these statements to be exculpatory and not an admission.  The State sought to introduce Dow’s statements as substantive evidence that he committed the crime charged.  Dow moved to exclude these statements, arguing they were inadmissible for lack of  corpus delicti.  The trial court agreed.  Dow’s case was dismissed.  The State appealed.  The case found its way to the Supreme Court.

Some background is necessary: the corpus delicti doctrine generally is a principle that tests the sufficiency or adequacy of evidence, other than a defendant’s confession, to corroborate the confession.  The purpose of the rule is to ensure that other evidence supports the defendant’s statement and satisfies the elements of the crime.  Where no other evidence exists to support the confession, a conviction cannot be supported solely by a confession.  The purpose of the corpus delicti rule is to prevent defendants from being unjustly convicted based on confessions alone.  Historically, courts have grounded the rule in judicial mistrust of confessions.

Along comes RCW 10.58.035. It allows a statement to be admitted into evidence if there is substantial independent evidence establishing the trustworthiness of the statement.   The following factors determine whether the statement is trustworthy:

(a)  Whether there is any evidence corroborating or contradicting the facts set out in the statement, including the elements of the offense;

(b)  The character of the witness reporting the statement and the number of witnesses to the statement;

(c)  Whether a record of the statement was made and the timing of the making of the record in relation to the making of the statement; and/or

(d)  The relationship between the witness and the defendant.

Here, the WA Supremes reasoned that even if the statements are admissible, no other evidence exists to establish the corpus delicti independent of Dow’s statement. Further, corpus delicti cases have always required sufficient evidence independent of a defendant’s confession to support a conviction.  RCW 10.58.035 does nothing to change this requirement. The State concedes it lacked evidence.  Indeed, the only evidence the State purported to have is Dow’s statement, which is insufficient under any standard.

Consequently, the WA Supremes upheld Dow’s dismissal.

My opinion?  I like the decision.  The WA Supremes dutifully followed corpus delicti and held people shouldn’t be charged with crimes unless evidence exists.  I fear, however, that even though the Court did not allow RCW 10.58.035 to swallow the corpus delicti rule, such decisions may come few and farther in between.  The statute was MADE to chip away at corpus delicti.  Period.  Perhaps it didn’t apply to Dow’s case because his statement was the ONLY evidence the State had.  Future defendants in future cases, however, might not be so lucky.

My prediction?  Future courts may find that if a scintilla of evidence beyond the defendant’s statement exists, then the statute kicks into effect and does away with corpus delicti.  Keep your eyes peeled . . .

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.

Whatcom County Jail Gets Record Number of Inmates

Animal Abuse, Assault, Bellingham, Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Domestic Violence, Drug Offenses, Due Process, DUI, felony, Firearm, Homicide & Manslaughter, Jail, law enforcement, marijuana, misdemeanor, police, Pretrial Investigations, Probable Cause, Property Crimes, Retail Theft, Search and Seizure, Search Warrant, Sentencing, Sex Crimes, Speedy Trial & Continuances, Terry Stop, Theft, Washington State Patrol, Whatcom County Criminal Defense, , ,

COVID-19 infections hit record high in California prisons | CalMatters

Whatcom County Jail’s population hit a record high over Presidents Day weekend and since then, law enforcement agencies have been booking fewer people, to ease the crowding.
The jail’s population reached 323 inmates – its operational capacity should be 212 inmates -the weekend of Feb. 13-15, causing the jail to run out of temporary beds and come close to running out of clothes, sheets and other resources. From Feb. 1 to Feb. 16, an average of 26 people were booked into the jail each day.

Bellingham police have been citing and releasing some people arrested on misdemeanor, and booking and then immediately releasing others.  An officer might take some people to jail to have their photos and fingerprints taken, then have the jail release them.

My opinion?  I’ll state the obvious: the criminal justice system in Whatcom County has reached peaked capacity.  Jails are overcrowded.  Trial calendars are filled.   Trust me, I know.

The easy solution?  Hire an additional judge, build additional courts, and build another jail.  Unfortunately, that’s not going to happen any time soon.   Put simply, The County lacks resources to build jails and/or hire more court staff.  This is not due to sloppy spending on the part of the County.  The Whatcom Superior Court has already eliminated numerous services due to the decrease in revenues.  That said, the likelihood of obtaining more revenue to hire another judge and/or construct another jail is slim to none.

The harder solution – and probably the more criticized; yet WORKABLE solution – is for the Prosecutor’s Office to negotiate more cases to a favorable resolution.  They’re a trial-happy bunch, and unnecessarily so.  Not every case must be brought to trial.  Justice happens when all parties leave the courtroom satisfied with the result.

At any rate, overcrowded jails are symptomatic of larger problems.  The County judiciary is burning the candlestick at both ends.  We’re seeing a decrease in judicial revenues and an increase in inmates.  The state of affairs certainly is alarming.  Why now, and why all of the sudden?

A tough nut to crack.

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. McCormick: Sex Offender’s Suspended Sentence Remains Revoked

Bellingham Defense Attorney, Due Process, Mount Vernon Criminal Defense Attorney, Rape, Sentencing, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

PPT - The Basics of Sex Offender Sentencing in Washington PowerPoint Presentation - ID:253013

In State v. McCormick, the WA Supreme Court held the plain language of Washington’s SSOSA statute does not require proof that a violation was willful before a SSOSA sentence may be revoked.

David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he “not frequent areas where minor children are known to congregate”

Unfortunately, McCormick’s community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick’s first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.

McCormick argued that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence.

However, the Court held that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court’s decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices.

Justice Sanders dissented, asserting that “[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate.”

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.

US Supremes Rule Convicted Defendants Have No Right To Test DNA

Assault, Constitutional Rights, DNA, Due Process, felony, Forensics, Legislation, Race & Law, Rape, Sex Crimes, Uncategorized, United States Supreme Court, , ,

How Reliable Is DNA Evidence? | The Marshall Defense Firm

In Yeager v. United States, the U.S. Supreme Court ruled that convicts have no constitutional right to test DNA evidence in hopes of proving their innocence long after they were found guilty of a crime.

The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence. Testing so far has led to the exoneration of 240 people who had been found guilty of murder, rape and other violent crimes, according to the Innocence Project.

The court ruled 5-4, with its conservative justices in the majority, against an Alaska man who was convicted in a brutal attack on a prostitute 16 years ago.

William Osborne won a federal appeals court ruling granting him access to a blue condom that was used during the attack. Osborne argued that testing its contents would firmly establish his innocence or guilt.

In parole proceedings, however, Osborne has admitted his guilt in a separate bid for release from prison.

The high court reversed the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco. States already are dealing with the challenges and opportunities presented by advances in genetic testing, Chief Justice John Roberts said in his majority opinion.

“To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” Roberts said. Alaska, Massachusetts and Oklahoma are the only states without DNA testing laws. In some other states, the laws limit testing to capital crimes or rule out after-the-fact tests for people who confess.

But Justice John Paul Stevens said in dissent that a simple test would settle the matter. “The court today blesses the state’s arbitrary denial of the evidence Osborne seeks,” Stevens said.

My opinion?  HORRIBLE DECISION.  Although the crime in question was heinous, there is no doubt that a small group of innocent people — and it is a small group — will languish in prison because they can’t get access to the evidence.  This directly violates a defendant’s 6th Amendment rights.  Unbelievable.

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. Sutherby: Great Case Regarding Improper Prosecution and Ineffective Assistance of Counsel

Assault, Constitutional Rights, Ineffective Assistance, Prosecutorial Misconduct, Rape, Sentencing, Sex Crimes, Unit of Prosecution, Washington Supreme Court, , ,

Malicious Prosecution Cases in South Carolina - King Law

In State v. Sutherby, the WA Supreme Court threw out a Rape of a Child conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter (“L.K.”) stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Mr. Sutherby was arrested and charged with multiple sex offenses to include first degree rape of a child and first degree child molestation.

A subsequent search of his personal computer found child pornography, and he was charged with 10 counts of possession of depictions of minors engaged in sexually explicit conduct. He was convicted by a jury on all counts and appealed.

The Court here considered two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?”

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.”

The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition.

The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

My opinion?  Yes, society HATES sex crimes; especially when children are possibly involved.  Here, however, the Supremes correctly looked beyond the nature of the crime and addressed how the case was botched by the Prosecutor and defense attorney alike.  Clearly, the Supremes sent a message: stacking charge after charge is, simply, unconstitutional.  Multiple images does not = multiple charges!  We creep into the realm of  unlawful Double Jeopardy.

Additionally, State v. Sutherby teaches defense attorneys about ineffective assistance of counsel.  Oftentimes, prosecutors will try adding additional charges on totally unrelated events before trial.  This tactic, if successfully done, makes juries suspicious that the defendant “must be a bad person, otherwise they wouldn’t have acquired all these criminal charges.”

In other words, the juries become prejudiced toward the defendant, and might decide the cases accordingly.  This type of outcome kills justice.  Defense attorneys must avoid sloppiness and BE CAREFUL.  We cannot allow the State to unfairly prejudice our clients at the 11th hour before 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. Ramos: Excellent Separation of Powers Case

Constitutional Rights, Due Process, felony, Legislation, Sex Crimes, Washington Court of Appeals, , ,

Theory Of Separation Of Powers - Political Science

In State v. Ramos, the defendant was convicted in 1993 of sexual exploitation of a minor.  At the time, Washington did not require sex offenders to register with the State.   The law was changed after Ramos’ release and he registered in 2001.  The law changed again to require Level II sex offenders to report in person every 90 days.  Ramos failed to do so.  he was prosecuted for failing to report.

The WA Court of Appeals held that the authority to define crimes and set punishments rests squarely with the legislature.  Not the prosecutor, not the sheriffs, but the legislature.  It reasoned it is unconstitutional for the legislature to transfer its power to others.  Because the sex offender reclassification statute does not provide any guidance to local law enforcement agencies, Ramos’ delegation was improper, and his conviction cannot stand.

My opinion?  Great decision.  It reaffirms the debate regarding the wrongful  application of newly formed criminal laws.  In Washington, defendants can only be charged with violating laws in existence  at the time of arrest.  Unless a newly formed statute specifically provides for retroactive application, defendants cannot be found to have violated the new statute.  It isn’t fair.  Unconstitutional.  Again, great decision.

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