Category Archives: Sixth Amendment

Who Is The Toxicologist?

Bellingham Defense Attorney, Constitutional Rights, DUI, Sixth Amendment, Skagit County Criminal Defense, Toxicologist, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In the deeply divided 5-4 court decision State v. Salgado-Mendoza, the WA Supreme Court held that the trial court did not abuse its discretion in denying the defendant’s motion to suppress the toxicologist’s testimony under CrRLJ 8.3(b) even though the defendant was not informed which State toxicologist would testify.

I originally discussed this case in my blog titled, “Prosecutors Must Reveal Toxicologist Identities in DUI Trials.” At that time, the WA Court of Appeals Division II reversed the defendant’s DUI conviction because the Prosecutor failed to give Defense Counsel the name of their Toxicologist expert witness before trial.

On appeal, however, the WA Supreme Court decided differently. It overturned the Court of Appeals and said the trial court, in fact, was correct in denying the defendant’s motion to suppress the toxicologist’s testimony.

BACKGROUND FACTS

On the evening of August 11, 2012, a Washington State Patrol trooper stopped and arrested Mr. Salgado-Mendoza for DUI. His BAC test showed a blood alcohol concentration of 0.103 and 0.104; which is over the .o8 limit.

Before trial, the State initially disclosed the names of nine toxicologists from the Washington State Patrol toxicology laboratory, indicating its intent to call “one of the following.” It whittled the list to three names the day before trial, but did not specify which toxicologist it would call until the morning of trial, noting that it provided the witness’s name “as soon as we had it and that’s all that we can do in terms of disclosure.”

Mendoza moved to suppress the toxicologist’s testimony under CrRLJ 8.3(b) based on
late disclosure, asking the court to “send a message to the state patrol crime lab and
say this isn’t okay anymore.” The trial court refused, finding no actual prejudice to the defense and observing that the practice of disclosing a list of available toxicologists rather than a specific witness was driven more by underfunding of the crime labs than by mismanagement.

Salgado-Mendoza appealed to the superior court, which found the district
court had abused its discretion. The Court of Appeals affirmed, reasoning that the
delayed disclosure violated the discovery rules and caused prejudice. Again, however, the WA Court of Appeals disagreed.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reasoned that while the State’s disclosure practice amounted to mismanagement within the meaning of CrRLJ 8.3(b), Salgado-Mendoza has not demonstrated actual prejudice to justify suppression.

The majority Court explained that under CrRLJ 8.3(b), the party seeking relief bears the burden of showing both misconduct and actual prejudice.

“In this case, Salgado-Mendoza can demonstrate misconduct within the meaning of the rule, but not actual prejudice. He can prove misconduct because a discovery violation need not be willful—simple mismanagement will suffice. Here, the State’s failure to at least narrow the list of possible toxicology witnesses pretrial reflects mismanagement,” said the Court. “However, Salgado-Mendoza cannot show prejudice that wan’ants complete suppression of the toxicologist’s testimony.”

With that, the WA Supreme Court held that Mr. Mendoza has not demonstrated actual prejudice to justify suppression of the toxicologist’s testimony. “Because there was no abuse of discretion, we reverse the Court of Appeals.”

THE DISSENT

Justice Madsen authored the dissenting opinion. She was joined by Justices Yu, Gordon McCloud and Johnson.

In short, the dissenting judges disagreed with the majority because they believed the defendant was prejudiced by this delayed disclosure of the possible toxicologists who would testify. They reasoned that forcing a defendant to bear the burden of preparing to cross-examine a long list of witnesses when the State only intends to call one is not how our system of justice operates.

“The State cannot cite funding deficiencies and simply shift its burden of prosecution onto defense counsel,” wrote Judge Madsen. “If the State wishes to pursue prosecution, it must allocate sufficient resources to its departments so that they may operate in a way that is consistent with a defendant’s right to a fair trial.”

“By under-staffing the State’s toxicology laboratory so that they cannot confirm who will testify until the day of trial, the State is not meeting this burden and defendants are being forced to compensate for the deficiency. Therefore, I would find that the trial court abused its discretion by denying Salgado-Mendoza’s motion to suppress the toxicologist’s testimony.”

My opinion? I agree with the dissenting opinion. Under the Sixth Amendment and the WA Constitution, The State bears the burden of proving their charges beyond a reasonable doubt. Also, the State must follow discovery rules under CrR 4.7. One of the State’s discovery obligations is to name their witnesses who they call to testify. Period. Collateral issues revolving around the State’s under-staffing and a lack of funding should not excuse violating a defendant’s 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.

Evidence of Self-Defense

Assault, Bellingham Defense Attorney, ER 404(B), ER 405(B), Evidence, misdemeanor, Self-Defense, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Self Defense Men | Meme Generator

In State v. Lee, the WA Court of Appeals held that the trial court violated the defendant’s Sixth Amendment right to present a defense by excluding evidence of self-defense.

BACKGROUND FACTS

On January 25, 2015, the defendant Chevalier  Lee’s girlfriend, Danielle Spicer, visited the home of Alice Gonzalez and her husband, Louis Gonzalez -Hernandez. Spicer went to the Gonzalez’s house and stayed there with Gonzalez and Gonzalez Hernandez’s’ five children while Gonzalez and Gonzalez-Hernandez ran errands. Gonzalez and Gonzalez-Hernandez returned home to find Lee at their house playing cards with their children and Spicer. Although they had not invited him, Lee had been to their home many times and was generally welcome there.

Later that evening, Lee and Spicer began arguing about whether they would spend the night with Gonzalez and Gonzalez-Hernandez or return to their respective individual residences. Lee loudly cursed at Spicer as the argument escalated. Gonzalez-Hernandez told Lee that he did not like “that kind of behavior” in his house and Lee would have to leave. Lee refused and said that he didn’t have to leave.

Gonzalez-Hernandez told Lee to leave approximately three-to-five times. According to Lee, he then cursed at Gonzalez-Hernandez who “came right at” him. Gonzalez-Hernandez had his hands up. Lee was scared and hit Gonzalez-Hernandez. The two men then wrestled. Lee left after seeing the scared looks Gonzalez, Spicer, and the children had.

According to Gonzalez-Hernandez, Lee called him a “f**king b***h” and hit him in the
face. Another witness saw Lee approach Gonzalez-Hernandez and get within inches of his face. Gonzalez-Hernandez again told Lee to leave and Lee “swung at him.” After they fought for a few minutes, Gonzalez called 911 and Lee and Spicer left.

Jury Trial

At trial, the defense sought to elicit testimony from Spicer that she and Lee had witnessed
Gonzalez-Hernandez being “physical with his wife” in a separate incident four days prior to the assault. Lee’s attorney argued that this evidence would show that Lee had actual knowledge that Mr. Gonzalez-Hernandez actually had the capacity to be aggressive and/or violent. According to Lee’s defense attorney, this evidence would show Lee’s state of mind regarding his need to defend himself.

The judge sustained the City’s objection, finding the evidence was “more prejudicial than probative” and that allowing such evidence would open the door to evidence about Lee’s prior misconduct. The defense suggested it would then elicit testimony that Lee “had prior information that Mr. Gonzalez-Hernandez had been known to be aggressive.” The trial court sustained the City’s objection to this evidence, finding it “more prejudicial than probative of anything.”

In fact, during Lee’s testimony, Lee stated that he “had reason to be scared of Gonzalez-Hernandez already,” to which the City objected and the court sustained. Neither the City nor the court stated any specific grounds for this objection or ruling.

A jury found Lee guilty of Assault Fourth Degree. He appealed to the Pierce County Superior Court which affirmed the conviction. The WA Court of Appeals granted Lee’s motion for discretionary review.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals held that the trial court violated Lee’s Sixth Amendment right to present a defense by excluding evidence of self-defense.

The Court agreed with Lee that evidence he had witnessed regarding Gonzalez-Hernandez’s recent violent behavior was critical to his defense because it both increased the likelihood he had a subjective fear of Gonzalez-Hernandez and it made his fear more objectively reasonable, thus strengthening his self-defense argument.

The Court of Appeals reasoned that self-defense is a complete defense under RCW 9A.16.020. A defense of self-defense requires proof (1) that the defendant had a subjective fear of imminent danger of bodily harm, (2) that this belief was objectively reasonable, and (3) that the defendant exercised no more force than was reasonably necessary. The City has the burden of proving the absence of self-defense beyond a reasonable doubt.

The Court further reasoned that evidence of self-defense is evaluated from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees. This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done.

Also, said the Court, a fact finder evaluates self-defense from the defendant’s point of view as conditions appeared to him at the time of the act. For the subjective portion of the self-defense test, jurors must place themselves in the shoes of the defendant and evaluate self-defense in light of all that the defendant knew at the time. All facts and circumstances known to the defendant should be placed before the jury. Thus, reasoned the court, under ER 404(B) and ER 405 (B), where a defendant claims self-defense, a victim’s prior acts of violence known to the defendant are admissible to establish a defendant’s reason for apprehension and his basis for acting in self-defense.

ER 404(B)

To determine whether a specific act should be admissible under rule 404(B), the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect. The trial court is required to conduct an ER 404(b) analysis on the record.

“In this case, Lee sought to admit evidence of Gonzalez Hernandez’s prior acts of violence
to prove that Lee had knowledge of those acts, giving him reason to fear Gonzalez-Hernandez,” said the Court.

Furthermore, the Court reasoned that evidence that Lee had witnessed Gonzalez-Hernandez being “physical” with his wife four days before the incident was relevant to Lee’s state of mind. “The evidence would allow the jury to assess Lee’s reason to fear
bodily harm from the victim,” said the Court.

Finally, the Court weighed the probative value of Gonzalez-Hernandez’s history of violence against its prejudicial effect. “Because the evidence in this case was relevant and otherwise admissible, the trial court should only exclude it if the City showed that the evidence was so prejudicial as to disrupt the fairness of the fact-finding process at trial,” said the Court. “Here, the proffered evidence went to Lee’s complete defense. Its probative value is to allow Lee to present a defense.”

Consequently, the Court ruled that the City failed to demonstrate that evidence of Gonzalez-Hernandez’s prior violent conduct known to Lee would be so prejudicial as to outweigh Lee’s Sixth Amendment right to present his defense. “This type of evidence should be heard by a jury so it can assess the reasonableness of Lee’s actions,” said the Court.

With that, the Court of Appeals reversed Lee’s conviction.

My opinion? Good decision. Under the Sixth Amendment, citizens have a right to an adequate defense. Under Washington statute, self-defense is a complete defense. Therefore, suppressing evidence which proves self-defense violates the Sixth Amendment.

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.

‘Sanctuary’ Cities Targeted by ICE in Immigration Raids

Bellingham Defense Attorney, Constitutional Rights, Federal Crimes & Prosecutions, Fourth Amendment, Immigration, Immigration & Customs Enforcement (ICE), Sanctuary Cities, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Trump Administration, Whatcom County Criminal Defense, , ,

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Erik Ortiz reported that a federal operation to arrest undocumented immigrants netted nearly 500 people in cities and states that have openly opposed the Trump administration’s deportation initiatives.

According to Ortiz, Immigration and Customs Enforcement (ICE) officials said last Thursday that its four-day “Operation Safe City” targeted people in residing in the so-called “Sanctuary Cities” of New York, Los Angeles, Philadelphia, Denver, Washington and Baltimore as well as Cook County, Illinois; Santa Clara County in California’s Bay Area; Portland, Oregon; and Massachusetts.

Officials in those places — some referring to themselves as “sanctuary  communities” — have been vocal about not fully cooperating with federal immigration authorities, at times clashing with state leaders who support President Donald Trump’s agenda. Sanctuary communities have passed ordinances limiting compliance with federal immigration laws and seek to shield undocumented immigrants who may be deported simply over their immigration statuses or low-level criminal offenses.

“Sanctuary jurisdictions that do not honor detainers or allow us access to jails and prisons are shielding criminal aliens from immigration enforcement and creating a magnet for illegal immigration,” Tom Homan, ICE’s acting director, said in a statement. “As a result, ICE is forced to dedicate more resources to conduct at-large arrests in these communities.”

It is not unusual for ICE to round up immigrants by the hundreds or even low thousands, although the latest raid comes on the heels of a planned operation that would have targeted about 8,400 undocumented immigrants this month.

But the Department of Homeland Security scrapped the operation after the agency said it was halting nationwide enforcement actions in the wake of hurricanes Irma and Harvey. This latest effort indicates the administration is ready to renew its efforts.

“ICE’s goal is to build cooperative, respectful relationships with our law enforcement partners to help prevent dangerous criminal aliens from being released back onto the streets,” Homan said.

According to ICE, of the 498 people arrested this week, 317 had criminal convictions. Some were also categorized as “immigration fugitives,” “previously deported criminal aliens,” and/or associated with a gang.

Most of the criminal convictions were for driving under the influence as well as assault- and drug-related offenses, ICE said. Others were arrested for marijuana possession, traffic offenses and even charges of being a “peeping tom.”

City officials declared Portland a sanctuary city in March, and its mayor, Ted Wheeler, has criticized the Trump administration’s push to end the Obama-era program that has allowed undocumented immigrants who came to the United States as children to remain in the country.

The administration, meanwhile, has faced setbacks as it seeks to overhaul immigration — an issue that has failed repeatedly to gain traction in Congress. Weeks ago, a U.S. district judge in northern Illinois gave sanctuary cities a temporary victory, saying the Justice Department can’t withhold public safety grants to Chicago because officials there don’t want to impose certain immigration policies.

My opinion? As a criminal defense attorney, my role is to protect people’s Constitutional Rights under the Fourth Amendment. Therefore, I have a natural inclination to prevent warrantless, unlawful searches and seizures.

That said, I understand if the government declares a state of emergency holding that exigent circumstances warrants the immediate seizure and deportation of undocumented immigrants.

However, there’s lots of controversy surrounding the subject of ICE raids on Sanctuary Cities. Some civil rights advocates say the raids fit with the Trump administration’s pattern of scapegoating, criminalizing, and demonizing immigrants. Also, courts have said that holding someone without a warrant could violate their constitutional rights, putting jailers at risk of lawsuits. Finally, others have accused Trump’s attack on sanctuary cities as a malignant executive power grab that subverts the Spending Clause and tramples the 10th Amendment.

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.

Join Offenses = Bad Results

Bellingham Defense Attorney, Burglary, Constitutional Rights, felony, Firearm, Joinder, Jury Trial, Property Crimes, Sentencing, Severance, Sixth Amendment, Skagit County Criminal Defense, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Joinder" Of Defendants Or Offenses In Nevada Criminal Cases

In State v. Linville, the WA Court of Appeals held that the defendant’s numerous criminal charges cannot be “joined” to a charge of leading organized crime.

BACKGROUND FACTS

Following an increase in residential burglaries in Thurston County, law enforcement
officers noticed similarities among several burglaries. Officers ultimately recovered numerous items taken during the burglaries from Linville’s home.

The State charged Linville with 1 count of leading organized crime, 35 counts of
residential burglary, 1 count of attempted residential burglary, 4 counts of first degree burglary, 3 counts of second degree burglary, 39 counts of trafficking in stolen property, 17 counts of first degree theft, 18 counts of second degree theft, 1 count of attempted second degree theft, 3 counts of third degree theft, 5 counts of theft of a firearm, 5 counts of identity theft, 4 counts of unlawful possession of a firearm, 1 count of possession of stolen property, and 1 count of possession of a controlled substance, for a total of 138 charges with numerous deadly weapon sentencing enhancements. The State alleged that Linville was armed with a firearm during the commission of the four first degree burglaries.

At no point did Linville argue that joinder of any offenses was improper under RCW 9A.82.085.

During the jury trial, the State presented testimony from numerous co-defendants who identified Linville as the instigator and leader of the burglary scheme. The co-defendants’ testimony was corroborated by law enforcement officers and victims who described the common characteristics among the burglaries and identified stolen goods recovered from the homes of Linville and his co-defendants. The jury found Linville guilty of 137 offenses, and he was sentenced to 914 months in prison, which included 240 months for four firearm sentencing enhancements.

Linville appealed on the argument that his defense counsel gave ineffective assistance of counsel by failing to move for severance of offenses that were not part of the pattern of criminal profiteering activity from the charge of leading organized crime under RCW 9A.82.085.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court agreed with Linville. It reasoned that the Sixth Amendment guarantees the effective assistance of counsel in criminal proceedings. To show ineffective assistance of counsel, a defendant must show that (1) defense counsel’s conduct was deficient, and (2) the deficient performance resulted in prejudice. To show deficient performance, Linville must show that defense counsel’s performance fell below an objective standard of reasonableness. To show prejudice, Linville must show a reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the proceeding would have differed.

  1. Counsel Rendered Deficient Performance.

First, the Court reasoned that RCW 9A.82.085 states the following, in relevant part:

“In a criminal prosecution alleging a violation of leading organized crime, the state is barred from joining any offense other than the offenses alleged to be part of the pattern of criminal profiteering activity.”

RCW 9A.82.010(12) defines “pattern of criminal profiteering activity” as “engaging in at least three acts of criminal profiteering.” RCW 9A.82.010(4) defines “criminal profiteering” as:

“any act, including any anticipatory or completed offense, committed for financial gain, that is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable as a felony and by imprisonment for more than one year, regardless of whether the act is charged or indicted, as any of the following: . . . .”

RCW 9A.82.010(4) then lists 46 crimes and their defining statutes. First and second degree theft, trafficking in stolen property, leading organized crime, and identity theft are included in the list. However, residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property are NOT included in the list. 

Consequently, the Court reasoned that a plain reading of the statutes made it clear that the State was barred from joining charges of residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property to Linville’s prosecution for leading organized crime.

“The unreasonable failure to research and apply relevant statutes without any tactical purpose constitutes deficient performance. Here, defense counsel’s failure to object to the State’s improper joinder of charges was unreasonable and constitutes deficient performance.”

2. Counsel’s Deficient Performance Resulted in Prejudice to the Defendant’s Case.

The Court said that in order to succeed on his claim of ineffective assistance of counsel, Linville must also show that but for his attorney’s deficient performance the outcome of the trial would have differed, and therefore the deficient performance was prejudicial.

To this end, the Court reasoned that this issue is somewhat different than the related issue of discretionary joinder or severance pursuant to CrR 4.4(b). Under CrR 4.4(b), a trial court must grant a motion to sever offenses if it determines that “severance will promote a fair determination of the defendant’s guilt or innocence of each offense.” A defendant seeking such a severance under CrR 4.4(b) must show that a trial involving all counts would be so manifestly prejudicial as to outweigh the concern for judicial economy.

In contrast, the Court explained that RCW 9A.82.085 leaves no room for the trial court’s discretion. Under that statute, the State is barred from joining offenses other than those alleged to be part of the criminal profiteering activity in a prosecution for leading organized crime.

“Because of defense counsel’s failure to object, Linville was improperly tried for 138 total charges and convicted of 137 offenses,” said the Court. “Had counsel properly objected to the joinder, 56 of the charges, including all of the burglary charges, would have been severed, the trial would not have included convictions for those 56 improperly joined charges, and the outcome of this trial would have been different.”

The Court extrapolated the prejudicial consequences of the joinder. It explained that each of the four firearm enhancements – which resulted in a mandatory minimum sentence of 240 months – were associated with the four counts of first degree burglary. The firearm enhancements would not have been considered but for defense counsel’s deficient performance.

“The improper joinder had additional prejudicial consequences,” stated the Court. For example, by improperly joining four charges of unlawful possession of a firearm, the State was permitted to introduce evidence of Linville’s prior felony for possession of a controlled substance without a prescription. This prior conviction evidence was highly prejudicial given that the State’s theory was that Linville’s crime ring was motivated by drugs.

Also, the State relied heavily on the burglaries as evidence of Linville’s guilt for leading organized crime. A jury separately considering the burglary charges would not necessarily have heard testimony of Linville’s accomplices accusing him of orchestrating a broad scheme.

Consequently, the Court held that Linville’s defense counsel rendered ineffective assistance of counsel by failing to object to the joinder of offenses in violation of RCW 9A.82.085. The Court therefore reversed Linville’s convictions and remanded them back to the trial court for separate trials.

My opinion? Good decision. A defense attorney’s failure to sever “joined” offenses into separate trials can have profoundly devastating effects. Put simply, juries are more biased against the defendant in a joinder trial versus a trial with a single charge. Consequently, they are more likely to convict on a particular charge in a joinder trial with multiple charges than in a trial on the same single charge. It’s imperative that competent defense attorneys sever counts whenever possible.

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.

Juror Misconduct

9th Circuit Court of Appeals, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Due Process, Federal Crimes & Prosecutions, felony, Homicide & Manslaughter, Juror Misconduct, Jury Trial, Sixth Amendment, Skagit County Criminal Defense, Technology, Violent Crime, Whatcom County Criminal Defense, , ,

All about juries: why do we actually need them and can they get it 'wrong'?

In Godoy v. Spearman, the Ninth Circuit Court of Appeals overturned a murder conviction because a juror inappropriately communicated with a “judge friend” about the case during deliberations.

BACKGROUND FACTS

Enrique Godoy was convicted of second-degree murder by a Los Angeles County Superior Court jury. A week before his June 12, 2006 sentencing, he moved for a new trial alleging that Juror 10 had improperly communicated about the case with a “judge friend” during deliberations. To substantiate his allegations, Godoy brought brought alternate juror “E.M.” to his sentencing hearing. The trial court continued Godoy’s sentencing to a future court date. Later, Godoy sent the Prosecutor a declaration about Juror 10’s misconduct from alternate juror N.L., who wrote the following:

“During the course of the trial, juror number ten kept continuous communication with a gentleman up north, who she referred to as her “judge friend.” Juror number ten explained to us, the jury as a whole, that she had a friend that was a judge up north. From the time of jury selection until the time of verdict, juror number ten would communicate with her “judge friend” about the case via her TMobile Blackberry, a two way text paging system. When the jury was not sure what was going on or what procedurally would happen next, juror number ten would communicate with her friend and disclose to the jury what he said.”

Despite this “smoking gun” declaration, the trial court nevertheless sentenced Godoy to 16 years’ to life imprisonment. Godoy appealed his conviction to the California Court of Appeal, arguing the trial court erred by (1) refusing to presume Juror 10’s communications prejudiced the verdict and (2) refusing to hold an evidentiary hearing on the alleged misconduct. However, the California Court of Appeal rejected both of these arguments on the merits and affirmed Godoy’s conviction. Gody again appealed, this time going to the Ninth Circuit Court of Appeals.

COURT’S ANALYSIS AND CONCLUSION

This Ninth Circuit’s opinion began with the following:

“One of the most fundamental rights in our system of criminal justice is the right to trial before an impartial jury. Its common law origin can be traced back to the Middle Ages. It was enshrined in the Sixth Amendment to the Constitution, and it has been embraced by the Supreme Court in numerous cases . . .”

Against this backdrop, the Ninth Circuit held that the California Court of Appeal decision violated the clearly established Supreme Court law that governs this case. It reasoned that under Mattox v. United States, due process does not tolerate any ground of suspicion that the administration of justice has been interfered with by external influence.

“Thus, when faced with allegations of improper contact between a juror and an outside party, courts apply a settled two-step framework,” said the Ninth Circuit. At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a tendency to be injurious to the defendant. If so, the contact is deemed presumptively prejudicial and the court proceeds to step two, where the burden rests heavily upon the State to establish the contact was, in fact, harmless.

If the State does not show harmlessness – or in other words, if the defendant was, in fact, harmed by the juror’s contact with an outside party – then the court must grant the defendant a new trial.  However, when the prejudicial effect of the contact is unclear, then the trial court must hold a hearing to determine the circumstances of the contact, the impact thereof upon the juror, and whether or not it was prejudicial.

“Here, the California Court of Appeal failed to adhere to this framework in three key respects,” said the Ninth Circuit. First, although the State court correctly acknowledged at step one that N.L.’s declaration raised a presumption of prejudice, it never required the State to rebut that presumption at step two. It concluded instead that the presumption was rebutted because Godoy’s evidence failed to prove prejudice.”

The Ninth Circuit further reasoned that under Mattox and Remmer, however, Mr. Godoy was not required to prove prejudice at step two. Once he triggered the presumption, the burden rested heavily upon the State to disprove prejudice. “Thus, in denying relief because Godoy’s evidence did not prove prejudice at step two, the State court acted contrary to well established law,” reasoned the Ninth Circuit.

Second, the California Court of Appeal decision to set aside the State court’s failure to hold the State to its burden was error. In other words, it was wrong for the California Court of Appeal to rely on the very same statement from N.L.’s declaration both to raise the presumption of prejudice and to rebut it.  “This defies not only logic, but also the clearly established definition of a ‘presumption,’” reasoned the Ninth Circuit.

Third, the California Court of Appeal denied Godoy a hearing on prejudice under the wrong legal rule. It held he had to show a “strong possibility” of prejudice, but Remmer requires a hearing whenever, as here, the presumption attaches but the prejudicial effect of the contact is unclear from the record. “Because the state court’s decision contravened these bedrock principles, it was contrary to clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1),” reasoned the Ninth Circuit.

The Ninth Circuit concluded that because Godoy showed the presumption of prejudice, he was entitled to the evidentiary hearing that he never had to begin with. With that, the Ninth Circuit reversed the judgment of the lower court and remanded the case back with instructions to hold an evidentiary hearing to determine the circumstances of Juror 10’s misconduct, the impact thereof upon the jury, and whether or not it was prejudicial.

My opinion? There’s a lot to be learned from this case. First, in all of my trials I admit a jury instruction prohibiting the jurors from accessing the internet and/or their smartphone devices. Jurors must rely on the evidence and the law and not be guided by outside influences. Second, I try and discuss the case with jurors immediately after they render verdicts. These conversations are very helpful teaching moments because jurors reveal what swayed their decisions. Also – and important to the defense of my clients – jurors may reveal whether their fellow jurors committed misconducts  similar to the type described in this case.

Good decision. And kudos to the defense attorney who discovered the juror misconduct. Although my heart goes out to the friends and family of the murder victim, justice is not served when our courts fail to administer their obligation to give defendants a fair 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.

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, , ,

Image result for officers lie

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.

Race Bias Video for Jurors

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

Image result for race bias video

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

RACE BIAS 

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

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

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

BACKGROUND TO THE CREATION OF THE VIDEO

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

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

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

THE VIDEO

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

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

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

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

“No-Impeachment Rule” vs. Race Bias

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

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.

Jail Mail

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, First Amendment, Jail, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

Image result for jail mail

In Mangiaracina v. Penzone, the Ninth Circuit Court of Appeals held that prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected.

BACKGROUND FACTS

Nick Mangiaracina was jailed as a pre-trial detainee in Maricopa County’s Fourth Avenue Jail in Phoenix, Arizona. The jail’s stated policy is to open legal mail addressed to a prisoner only in the presence of that prisoner. Mangiaracina alleged, however, that his mail was repeatedly opened outside his presence in contravention of this policy. His complaint included descriptions of nine specific instances of the jail improperly opening his mail to/from his attorney.

In describing his injury resulting from the improper opening of his legal mail, Mangiaracina alleged that he and his two attorneys “are afraid to communicate by mail which is hard as I have so many cases and so much paperwork to go back and forth.” He further explained that his “right to confidentiality and privacy was violated” and that his “defense strategy and his rights in general were just shredded.”

PROCEDURAL HISTORY

Mangiaracina initially filed suit in Arizona superior court pursuant to 28 U.S.C. § 1983, alleging violations of his First and Sixth Amendment rights by a number of jail employees and John Doe defendants. The case was moved to federal court. Unfortunately, the U.S. district court ultimately dismissed Mangiaracina’s complaint with prejudice. it noted that Mangiaracina had failed to specifically allege that the pieces of mail were marked as “legal mail” and that, for most of the instances, he failed to explain how he knew the mail was opened outside his presence. He appealed to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit reasoned that under the U.S. Supreme Court’s Wolff v. McDonnell  and the Ninth Circuit’s Nordstrom v. Ryan, that prisoners have a Sixth Amendment right to confer privately with counsel and that the practice of opening legal mail in the prisoner’s presence is specifically designed to protect that right.

Furthermore, other circuit courts have similarly recognized the importance of this practice. In Jones v. Brown, the Third Circuit recognized, in the context of a First Amendment challenge, that opening legal mail outside the addressee’s presence was unlawful.

The Ninth Circuit further reasoned that the jail failed to identify any legitimate penological interest that would be served by opening legal mail outside Mangiaracina’s presence: “As we have emphasized in the past, a criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense.”  By necessity, reasoned the court, prisoners and pre-trial detainees rely heavily on the mail for communication with their attorneys. Unfortunately, the Maricopa County jail system does not allow incoming phone calls or provide access to e-mail, and outgoing phone calls can only be placed as collect calls.

With that, the Ninth Circuit reversed the lower court’s dismissal of Mangiaracina’s Sixth Amendment and First Amendment claims with respect to some mail-opening incidents and affirmed the lower court’s dismissal of the remaining counts of alleged improper mail opening.

My opinion? Excellent decision. It’s extremely difficult to communicate with jailed clients. Some jails offer limited hours of visitation and/or phone calls. Reading a defendant’s jail mail deprives the expression of confidentiality and chills the inmates’ protected expression. This is wrong, and violates a defendant’s First Amendment rights.

With respect to phone calls, I don’t discuss important details over the jail phones because the conversations are recorded. Although recorded phone calls with my clients are inadmissible at trial, these conversations are still surveillance which can “tip off” prosecutors to the strategies and tactics I develop with my clients.

Kudos to the Ninth Circuit for a very well-reasoned and substantial 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.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

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

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