Category Archives: Sixth Amendment

No Motion to Suppress?

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Firearm, Ineffective Assistance, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In Mahrt v. Beard, the 9th Circuit Court of Appeals held that a defendant may bring a pre-plea ineffective assistance of counsel claim when counsel’s failure to argue a motion to suppress the fruits of a search prevents the defendant from making an informed choice whether to plead guilty.

BACKGROUND FACTS

On September 3, 2012, Sonoma County Sheriff’s deputies were dispatched to a residence in Petaluma, California. A neighbor had reported that a male and female subject were arguing over a gun. The Defendant Gregory Mahrt was living in a garage on the property that had been converted into a room. As the deputies approached the property, Mahrt walked out and met them at the front gate. The deputies detained Mahrt and asked about the argument, the gun and whether anyone else was inside the residence.

Mr. Mahrt was “uncooperative.” The deputies conducted a “protective sweep” of Mahrt’s room in the garage. As the deputies approached the garage, Mahrt began yelling that he did not want the officers to enter his room. According to the report, the deputies observed ammunition cans, ammunition, and what appeared to be an AR-15 Rifle (later determined to be a replica).

The deputies subsequently learned that Mahrt had a prior felony conviction and arrested him for being a felon in possession of ammunition. The deputies then asked Mahrt for permission to search his room.

This is where the facts differ: according to police reports, Mr. Mahrt consented. The deputies conducted a second search of the room. They found additional ammunition, rifle magazines, and two firearms. According to Mahrt, however, he did not consent to the search.

On September 5, 2012, the State of California charged Mahrt with having been a felon in possession of a firearm and ammunition in violation of California Penal Code § 29800(a)(1) and § 30305(a)(1). Mahrt believed that the warrantless search (or searches) of the garage was (or were) illegal. However, neither of the two public defenders who represented him at the trial court level moved to suppress the firearms and ammunition recovered from his room.

Nevertheless, despite his defense counsel’s failure to move to suppress, Mahrt pleaded guilty to both charges and received a six-year sentence. He appealed. On appeal, Mahrt’s appointed counsel did not raise any issues. Instead, his counsel filed a Wende brief, the California analogue to an Anders brief. A Wende brief is filed when a California appellate attorney concludes that an appeal would be frivolous.  On November 27, 2013, the California Court of Appeal affirmed Mahrt’s conviction.

On April 11, 2014, Mahrt filed a federal habeas petition pursuant to 28 U.S.C. § 2254(d). The petition alleged that Mahrt’s Sixth Amendment right to effective assistance of counsel was violated by his trial counsels’ failure to move to suppress the firearms and ammunition found in his room. A magistrate judge, sitting by consent, granted Mahrt’s petition. The State timely appealed.

ANALYSIS & CONCLUSION

  1. The Defendant May Proceed With a Pre-Plea Ineffective Assistance of Counsel Claim.

The 9th Circuit  reasoned that Mahrt’s ineffective assistance of counsel claim, premised upon a failure to file a motion to suppress, is squarely within this line of case discussing pre-plea ineffective assistance of counsel by failing to file a motion to suppress:

“The State’s entire case against Mahrt depended on its ability to introduce into evidence the firearms and ammunition found in his room. If the deputies unconstitutionally searched Mahrt’s home, counsel’s failure to move to suppress the fruits of that search prevented Mahrt from making the informed choice to which he was entitled.”

    2. Mahrt’s Counsel Was Ineffective.

The Court held that Mahrt’s counsel was ineffective in failing to move to suppress the firearms and ammunition. It reasoned that there was at least a chance that such a motion would have succeeded. First, there was a clear conflict in the available evidence. Second, a police officer’s report mischaracterized the first search as a “protective sweep.”

The Court reasoned that a warrantless protective search is permitted under Maryland v. Buie, based on the “interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” Here, Mahrt was being detained by the deputies, and they had no reason to suspect that there was some other person inside the residence who could pose a danger to themselves or to others. Consequently, the Court reasoned that defense counsel should have filed and argued a motion to suppress the search of Maert’s premises.

My opinion? It’s very importnant to retain qualified defense counsel in search and seizure cases such as this. Here, the defendant accepted a plea bargain on the advice of defense counsel who, according to the court, failed to argue motions to suppress. Pretrial motions are essential. It’s imperative to hire defense counsel who know the law and argue it effectively.

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.

Another Study Finds Few Consequences For Prosecutor Misconduct

Bellingham Defense Attorney, Constitutional Rights, Prosecutorial Misconduct, Qualified Immunity, Sixth Amendment, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

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Blogger Radley Balko of the Washington Post describes how a large-scale study from the New England Center for Investigative Reporting discovered that systemic prosecutor misconduct in Massachusetts dated back to 1985.

The report found more than 1,000 cases in which misconduct was alleged by criminal defendants and 120 in which a state appeals court reversed conviction due to misconduct. The group found an additional 134 verdicts reversed or thrown out due to misconduct after reviewing data from the state bar.

Balko says it’s difficult to draw conclusions from the raw number of incidents because most prosecutor misconduct goes unreported. He says the failure to turn over exculpatory evidence often becomes apparent only once a defendant has exhausted their appeals, after which the defense gets access to the prosecutor’s files. But by this point, many defendants no longer have legal counsel.

Additionally, Balko poignantly describes why defense attorneys intentionally do not report prosecutorial misconduct:

“When defense attorneys do find misconduct by prosecutors, there are also some strong incentives against reporting it. Most criminal defense attorneys will also have several other clients being prosecuted by the same office, perhaps even the same prosecutor. Reporting misconduct could jeopardize the attorney’s ability to bargain for those clients. Often, the more enticing option is to use the discovery of misconduct as a bargaining chip to get a better deal for the defendant in that case and perhaps earn favor from the prosecutor in others.”

The topic is not new to Mr. Balko. He summarized a handful of similar studies in a piece for the Huffington Post a few years ago.

“There are a handful of ways to keep wayward public officials honest,” says Balko.  He believes in the success of electoral accountability as a viable option. Still, relying on voters to keep prosecutors honest is a risky proposition. “The groups more likely to be victimized by excessive prosecutors are also the groups with the least amount of political power.”

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.

The Right to Hope for Jury Nullification

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Ineffective Assistance, Jury Nullification, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , ,

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Interesting article by Ilya Shapiro of the Cato Institute discusses whether jury nullification could aid a defendant who is facing deportation in lieu of receiving bad legal advice.

According to Ms. Shapiro, defendant Jae Lee came to the United States legally as a child but never became a citizen. In 2009, he pled guilty to a drug crime after his lawyer assured him that he could not be deported. The lawyer was wrong, unfortunately, because the conviction made Lee subject to deportation.

When Lee learned of this mistake, he asked the court to vacate his plea so he could instead face trial, arguing that his counsel’s assistance was ineffective. The court denied this motion because of the overwhelming evidence against Lee, ruling that his conviction at trial was so certain that his counsel’s bad advice didn’t actually harm him, particularly given the much longer prison sentence he would receive if convicted after trial.

The U.S. Court of Appeals for the Sixth Circuit agreed with the law court’s ruling that a jury wasn’t needed to determine Lee’s guilt and that denying the “chance to throw a Hail Mary at trial is not prejudicial” and therefore doesn’t violate Lee’s Sixth Amendment right to a jury trial. The court reasoned that that the only chance Lee had was acquittal by “jury nullification” and thus such a gambit was so irrational—and the idea of nullification so antiquated—that it is not to be allowed.

For those who don’t know, jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

According to Shapiro, Mr. Lee is now taking the matter at the United States Supreme Court, which has agreed to hear his argument, which Cato is supporting with this amicus brief.

The Supreme Court must now protect the right to pursue Mr. Lee’s potentially risky trial strategy. Although it may not be wise for Mr. Lee to seek acquittal by jury nullification, he should also have the right to decide whether the risk is worth facing as against the certainty of deportation. According to Shapiro, “It is not up to courts to pick which strategy is best for criminal defendants to follow, but judges should protect the right to choose a jury trial even when they might not make the same choice under the same circumstances.” The Supreme Court hears argument in Lee v. United States on March 28, 2017.

My opinion? This is a very relevant, timely, progressive and news-worthy development. The new administration’s goals to deport criminal immigrants puts a lot of pressure on our courts to enforce these policies.

Ultimately, I predict an increase in post-conviction Motions to Withdraw guilty pleas based on Ineffective Assistance of Counsel under Padilla v. Kentucky, a 2010 United States Supreme Court case which held  that defense attorneys must inform their clients whether his plea carries a risk of deportation.

please  contact my office if you, family or friends are not U.S. citizens, yet face possible deportation for entering past guilty pleas which were ill-advised by defense counsel. Deportation is a terrible consequence for a prior attorney’s ineffective assistance of counsel.

Deported After Conviction

Alford Plea, felony, Immigration, Ineffective Assistance, Sixth Amendment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Manajares, The WA Court of Appeals Division III upheld the defendant’s 2002 conviction because at the time it was unforeseeable that the plea would result in deportation.

In December 2002, defendant Jose Manajares entered an Alford plea to one count of Unlawful Imprisonment, a Class C Felony. Before accepting the plea, the court asked Mr. Manajares if he understood that his “plea of guilty to this count is grounds for deportation from the United States, … exclusion from admission to the United States and denial of naturalization,” and he answered “Yes.” The court accepted the plea and sentenced Mr. Manajares.

Shortly after he entered the plea, Mr. Manajares was removed from the United States by the United States Immigration and Naturalization Service.

Almost 10 years after his 2002 conviction, Mr. Manajares filed a CrR 7.8 motion to vacate his Alford plea. He argued he received ineffective assistance of counsel because Manjares’s defense attorney failed to advise him that his conviction could result in deportation.

The Court reasoned that when determining whether a defense attorney provided effective assistance, the underlying test is always one of “reasonableness under prevailing professional norms.”

PADILLA V. KENTUCKY.

In Padilla, the United States Supreme Court recognized that immigration law can be complex,” and that “some members of the bar who represent clients facing criminal charges … may not be well versed in it.  Because “there will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain,” the Court announced the following standard for assessing a criminal defense lawyer’s duty:

“When the law is not succinct and straightforward … a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, … the duty to give correct advice is equally clear.”

Therefore, the Court of Appeals reasoned whether Mr. Manajares’s ineffective assistance of counsel claim depended on whether truly clear adverse immigration consequences would follow from his 2002 plea that defense counsel failed to apprehend and explain.

IMMIGRATION & NATIONALITY ACT.

The Court also reviewed the Immigration and Nationality Act, “which holds that any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of … a crime involving moral turpitude ( other than a purely political offense) … is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Here, the court reasoned it was unclear to both Mr. Manjares’s immigration attorney and his appellate attorney whether a conviction for unlawful imprisonment was an aggravated felony or a crime of moral turpitude which automatically triggers deportation.

Additionally, the court reasoned it is not automatically deficient performance for a lawyer to permit a client to enter an Alford plea. For all of these reasons, the Court decided there was ultimately no deficient performance on the part of defense counsel.

Mr. De Long’s review with Mr. Manajares of the general statutory deportation warning was therefore competent representation.

My opinion? In 2010, the U.S. Supreme Court’s Padilla v. Kentucky set the “bright line rule” that criminal defense attorneys must warn non-citizen clients of the risk of deportation if the defendant is considering a guilty plea. Employing Strickland v. Washington‘s test for evaluating whether legal counsel was “ineffective,” the Court held that criminal defense attorneys have an affirmative duty to warn their non-citizen clients of whether their guilty pleas carry a risk of removal from the United States, If counsel fails to issue a warning, he or she violates the defendant’s Sixth Amendment right to effective assistance of counsel.

Here, Padilla’s 2010 guidelines rules were not in effect because the defendant entered his plea in 2002. Therefore, defense counsel was no deficient in his performance.

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.

Misconduct at Closing

Bellingham Defense Attorney, Constitutional Rights, Evidence, Expert Testimony, felony, Jury Trial, Juvenile, Prosecutorial Misconduct, Rape, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In In re Personal Restraint of Phelps, the WA Court of Appeals Div. II held (1) expert testimony is required if the State intends to rely on the grooming process to prove and argue  its case, (2) the Prosecutor improperly argued facts not in evidence about sexual grooming, and (3) this error resulted in prejudice to the defendant that requires a reversal of his convictions.

BACKGROUND

On June 8, 2012, Defendant Todd Phelps went to  trial on his charges of third degree rape and second degree sexual misconduct with a minor. In February 2011, the victim AA was a minor who began playing softball on her high school team. Mr. Phelps was one of her coaches. Apparently, Mr. Phelps groomed AA into having sexual relations with him.

At trial, the State did not present any expert or lay testimony about the grooming process.

In closing argument, however, the prosecutor discussed some of the topics that he questioned the jurors about during jury selection, including the grooming process:

“Then we talked about grooming. We talked about the process of grooming. And some people came up with examples of how someone who is grooming is going to be nice. They are going to try to get the trust of someone. They are going to try and isolate that person so that they can do an act against this person who is being groomed. And it’s not just the person who is being groomed, but it’s other people that are around as well that are being groomed.”

The prosecutor referred to the concept of grooming throughout his argument. For example, after talking about the alleged physical contact that occurred before the rape, the prosecutor argued,

“What is all this stuff that’s going on? What is all this physical contact between a coach and a student athlete? It’s grooming; it’s okay, every time I touch you, it’s okay, it’s okay. Eventually, it becomes the norm. The grooming isn’t in the open, folks. When people groom, they don’t do it so everybody can see. That’s not the way it works. It wouldn’t be called grooming. It would be called a crime because he’d be caught all the time.”

The prosecutor further discussed how the grooming process took place over time and that, as part of it, Phelps told AA stories about how his wife refused to sleep in the same bed with him, how his wife had made out with another man, and other statements about his wife that were attempts to make AA sympathetic to him. The prosecutor then commented about Phelps’s sexual comments to AA and his physical contact with her, stating that “these are the things that are going on that she’s being told and groomed with throughout their contacts.” After discussing MM’s father’s testimony about Phelps bragging about his ability to control AA’s emotions, the prosecutor argued,

“So let me talk about grooming again. At this point, point of the rape, [AA] is pretty much isolated from her entire family until she eventually is allowed to move with her aunt. Remember the stories about her family, her grandma, her cousin, her aunt. She’s told these sex stories by the defendant. She’s told to break up with her boyfriend, don’t talk to your counselor. The defendant is meeting with her in private with other students, but no adults around. He has made her feel important throughout this entire incident. She felt he was the only one she could talk to.”

These types of comments from the Prosecutor – and many others about grooming – were repeated and emphasized throughout closing argument.

The jury found Phelps guilty of second degree sexual misconduct with a minor and third degree rape. Phelps appealed on the issue of whether the prosecutor committed misconduct by introducing the concept of grooming in closing argument without any evidentiary support or foundation; i.e., arguing that the prosecutor argued facts outside the record.

THE COURT’S ANALYSIS

The court reasoned that the 6th Amendment to the United States Constitution guarantees a defendant a fair, but not an error-free, trial. The burden to establish prosecutorial misconduct is on the defendant, who must show that the prosecuting attorney’s conduct was both improper and prejudicial. Prosecutorial misconduct is grounds for reversal only when there is a substantial likelihood that the improper conduct affected the jury.

Expert Testimony of Grooming.

The Court said expert testimony is required if the State intends to rely on the grooming process to prove and argue its case. Although the discussion of grooming in jury selection demonstrates that some of the jurors in this case had some general knowledge of grooming, this does not demonstrate that the jurors had the nuanced understanding of the grooming process that would enable them to understand its effect on things such as AA’s failure to report and how the grooming process may be used to influence others in order to increase the defendant’s credibility or undermine the victim’s credibility. Furthermore, the Court reasoned that the psychological complexities in understanding and evaluating the grooming process demand expert testimony to aid the jury.

Ultimately, the Court reasoned that because the prosecutor’s grooming argument encompassed issues that are beyond the jury’s common understanding, Phelps is correct that the prosecutor should have presented expert testimony on this matter if the State wished to rely on these concepts in closing argument.

Arguing Facts Not in Evidence.

The Court held that the Prosecutor’s use of the grooming concept in closing argument without first presenting testimony about the grooming process was misconduct.  There was no evidence of any kind before the jury explaining the grooming process, the potential purposes of grooming beyond achieving a sexual relationship with AA, or the effects of grooming on those around AA. Consequently, the State was required to present expert testimony on this aspect of the grooming process because these concepts were not within the common understanding of the jury. For that reason, the prosecutor was arguing facts that were not in evidence.

Flagrant, Ill-Intentioned & Incurable Prejudice.

The Court reasoned that the Prosecutor’s argument, without any evidentiary support, was also clearly prejudicial because it touched on credibility determinations that were key to this case given the circumstantial nature of the case and the lack of direct evidence of the criminal acts. The prosecutor’s argument focused on how Phelps’s grooming behaviors affected AA’s behavior and how those around AA perceived AA. It also was intended to rebut Phelps’s claims that his contact with AA was merely an innocent attempt to help a troubled young woman. Thus, this argument had a strong relationship to AA’s and Phelps’s credibility and potentially influenced the jury’s credibility determinations.

Finally, the Court reasoned that any resulting prejudice from the Prosecutor’s statements at closing argument could not have been cured by a jury instruction:

“We hold that Phelps has shown that the prejudice could not have been cured by an instruction. The repeated and pervasive use of the grooming concept makes it less likely that the jury followed this instruction, particularly when the grooming evidence was relevant to the core credibility issues in a case with no direct evidence of the actual crimes. Thus, Phelps has established prosecutorial misconduct.”

With that the Court reversed Phelps’ conviction.

My opinion? Good decision. As a practice, expert witnesses are required to testify about issues which are beyond the common understanding of jurors. The topic of grooming sexual assault victims certainly requires an expert. Period.

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.

 

Pre-Arrest Silence & Business Records Exceptions to Hearsay Rule

Bellingham Defense Attorney, Business Record, Constitutional Rights, Evidence, felony, Fifth Amendment, Hearsay, Jury Trial, Miranda, Pre-Arrest Silence, Search and Seizure, Self-Incrimination, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Magana, the WA Court of Appeals held (1) the Fifth Amendment is not an obstacle to the State’s introduction of a suspect’s pre-arrest silence as evidence of guilt, and (2) the State failed to lay a proper evidentiary foundation for the Lineup ID Report, however, the erroneous admission of the document was harmless error.

Sergio Magana Jr., an adult, met met fourteen-year-old Y.L. through Facebook. After exchanging text messages, Y.L. and Mr. Magana made plans to meet at Y.L.’s home. Mr. Magana wanted to be alone with Y.L. When the day they planned to meet arrived, Mr. Magana went inside Y.L.’s home and forcibly raped her. Not long after leaving, Mr. Magana texted and told Y.L. not to mention his name and to delete all of their text messages because her “age scared him.”
After approximately two weeks, Y.L. reported Mr. Magana’s conduct to the police. Y.L. identified Mr. Magana from a photo lineup and submitted her phone so text messages could be extracted. The police then began looking for Mr. Magana.
After about six weeks, Mr. Magana made contact with the police and spoke to a detective over the telephone. During the call, Mr. Magana arranged to meet with the police. However, he never showed up for his appointment. About a month later, Mr. Magana finally met with a police detective in person. He was advised of his Miranda rights and acknowledged that he had indeed met Y.L. over Facebook, but he denied having intercourse. Mr. Magana was charged with one count of third degree rape of a child. Following a mistrial and then a second trial, he was found guilty by a jury and sentenced by the trial court. Mr. Magana appealed.
1. PRE-ARREST SILENCE.
On appeal, Mr. Magana argued the jury should not have known about his failure to appear for his initial police interview. He claims this was an improper comment on his right to silence, in violation of the Fifth Amendment to the United States Constitution.
However, the Court of Appeals reasoned that the rule from the  United States Supreme Court’s Salinas v. Texas holds that the Fifth Amendment is not an obstacle to the State’s introduction of Mr. Magana’s pre-arrest silence as evidence of guilt. Furthermore, although Washington State’s Constitution typically provides more protections than the U.S. Constitution, “this is not an area where our state’s constitution affords greater protection than the federal constitution.”
Consequently, the Court of Appeals reasoned Mr. Magana was not under arrest or any sort of police custody. They said his scheduled police interview was voluntary, and to the extent Mr. Magana’s failure to appear for the interview was relevant, the State was entitled to present this evidence.
PHOTO LINEUP EVIDENCE.
Also on appeal, Mr. Magana argued the State’s photo lineup exhibit was hearsay and admitted into evidence without proper foundation. However, the State argued that the exhibit was a properly authenticated business record.
The Court reasoned that under RCW 5.45.020 and ER 803(6), a document may be admitted as a business record as long as a witness testifies to the document’s identity and mode of preparation, and explains that the document “was made in the regular course of business, at or near the time of the act, condition or event.”
Here, the exhibit at issue consisted of three pages. The first page is an array of six hand-numbered photos, one of which depicts Mr. Magana. The second page is entitled “Lineup ID Report,” which is a computer-generated report that documents biographical information, including dates of birth, for the six individuals depicted on the photo array. The third page is a copy of the written admonishment form Y.L. signed prior to reviewing the photo array.
However, The Court of Appeals reasoned that during the photo identification process, Y .L. failed to review the second page of the report. Also concerning was that at trial, no witness testimony was presented regarding the creation of the Lineup ID Report included on page two.
For these reasons, and because no foundation was laid for the Lineup ID Report, it was improperly admitted as a business record. Nevertheless, and given the entirety of the evidence, the erroneous inclusion of the Lineup ID Report was harmless error which did not impact the jury’s verdict. With that, the Court of Appeals affirmed Mr. Magana’s convictions, but remand to the trial court for resentencing.

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. Ortuno-Perez: “Other Suspect” Evidence

"Other Suspect" Evidence, Bellingham Defense Attorney, Constitutional Rights, Evidence, felony, Homicide & Manslaughter, Jury Trial, Sixth Amendment, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Ortuno-Perez, the WA Court of Appeals held that a murder defendant was wrongfully prohibited from introducing evidence that another person, who was armed at the murder scene, actually committed the murder.

In the early morning hours of October 12, 2013, Jesus Castro was shot in the head while standing outside of a house in Renton. He died several days later.

The single shot was fired at close range from a .22 caliber firearm. At the time the shot was fired, anywhere between 5 to 12 people were standing in close proximity to Castro. In that group were 2 individuals particularly pertinent here, the defendant Santiago Ortuno-Perez and Austin Agnish—each of whom was armed with a handgun at the time.

On the same day that Castro was shot, Ortuno-Perez was identified as a suspect and subsequently arrested outside of a house in Kent. In the days that followed, Ortuno-Perez was identified as the shooter by several witnesses who were present at the scene, including Agnish. Ortuno-Perez was subsequently charged with one count of murder in the first degree, committed while armed with a firearm.

Crucial to his defense at trial, Ortuno-Perez sought to introduce evidence that another person, not him, killed Castro. In particular, his counsel sought to identify Austin Agnish as the shooter, to cross-examine the State’s witnesses for potential bias in their testimony, and to present additional evidence indicating that a person other than Ortuno-Perez was the shooter.

However, the trial court denied Ortuno-Perez’s request because Ortuno-Perez had not demonstrated that Agnish had taken steps to commit the crime.

Four days later, Ortuno-Perez’s counsel filed a detailed offer of proof regarding the “other suspect” evidence that the defense would have introduced but for the trial court’s adverse ruling. Again, the trial court excluded the “other suspect” defense.

On the 10th day of testimony, Ortuno-Perez moved for a mistrial, arguing that his right to present a defense had been denied by the trial court’s “other suspect” rulings. The judge denied the motion for mistrial.

The jury convicted Ortuno-Perez of murder in the second degree, committed while armed with a firearm. He was sentenced to 280 months of confinement. Ortuno-Perez appealed.

Ultimately, the WA Court of Appeals reversed  Ortuno-Perez’s conviction and ordered a new trial.

“OTHER SUSPECT” EVIDENCE.

The court reasoned that Washington’s “other suspect” evidence rule—applicable to proffered evidence that a specific person other than the defendant committed the charged crime—has developed from a broad common law rule to a specific and focused application of well established principles of materiality and probative value. Furthermore, the court reasoned that State v. Franklin holds that such evidence should be admitted if there is an adequate nexus between the alleged other suspect and the crime. Thus, the threshold analysis for “other suspect” evidence involves a straightforward, but focused, relevance inquiry, reviewing the evidence’s materiality and probative value for whether the evidence has a logical connection to the crime.

THE SIXTH AMENDMENT.

The Court further reasoned that the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant a meaningful opportunity to present a defense. This right, however, is not absolute. It may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible. As with all evidence, the proponent bears the burden of establishing the admissibility of “other suspect” evidence.

Because the premise underlying the introduction of “other suspect” evidence is to show that someone other than the defendant committed the charged crime, the standard for admission is whether the proffered evidence tends to indicate a reasonable doubt as to the defendant’s guilt. Evidence is relevant when it is both material—the fact to be proved is of consequence in the context of the other facts and the applicable substantive law — and probative — the evidence has a tendency to prove or disprove a fact.

SUPPRESSING “OTHER SUSPECT” EVIDENCE VIOLATED ORTUNO-PEREZ’S RIGHTS UNDER THE SIXTH AMENDMENT.

Here, the Court of Appeals agreed that the “other suspect” evidence that Ortuno-Perez proffered actually supported a reasonable doubt as to his guilt. Prior to trial, defense counsel sought permission to present evidence to the jury that Agnish, not Ortuno-Perez, killed Castro. In his briefing, Ortuno-Perez’s counsel indicated that it planned to present evidence that Agnish (1) was using prescription drugs at the time that Castro was shot, potentially altering his perception of the shooting and his memory thereof, (2) was armed with a handgun and in close proximity to Castro at the time of the shooting, (3) lied about having access to guns other than the one he admitted carrying at the time of the shooting, and (4) was a member of a gang and had expressed a belief that Castro belonged to a rival gang.

However, the Court of Appeals reasoned that the trial court abused its discretion by improperly excluding the proffered evidence. It said the evidence proffered by Ortuno-Perez relating to Agnish’s potential culpability was of a type that tended to logically connect Agnish to Castro’s murder:

“If credited by the jury, it would establish Agnish’s motive (a gang clash), his opportunity (he was present at the murder scene and in close proximity to Castro at the instant of the shooting), and his means (he was armed with a handgun). Thus, the evidence proffered was plainly relevant to the question of the identity of Castro’s murderer and was of a type that, if credited by the jury, would support a reasonable doubt as to Ortuno-Perez’s guilt.”

The Court of Appeals said that as a result of the trial court’s erroneous rulings , Ortuno-Perez was unfairly prejudiced in two major respects: (1) his ability to confront the witnesses against him was compromised by the rulings preventing him from exploring the potential biases of witnesses who may have been covering for Agnish out of either affinity or fear; and (2) his ability to argue in closing argument that logical inferences from the evidence actually admitted during trial supported a reasonable doubt as to his guilt was compromised by rulings precluding him from suggesting to the jury that anyone other than Ortuno-Perez himself had shot Castro.

The trial court’s erroneous rulings were not harmless. The “other suspect” evidence which the trial judge excluded could have caused a reasonable juror to doubt whether Ortuno-Perez was guilty as charged. Consequently, the Court of Appeals reversed the conviction and remanded for a new trial.

My opinion? Good decision. Under the Sixth Amendment, allowing attorneys to argue inferences from the evidence is a rudimentary aspect of this right.  Defense Counsel must be afforded the utmost freedom in the argument of the case and some latitude in the discussion of their causes before the jury.

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.

Author of Confidential Informants Book Exposes the Truth

Bellingham Defense Attorney, Confidential Informants, Constitutional Rights, Evidence, Informant, law enforcement, police, Pretrial Investigations, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

 

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A new book discusses how confidential informants negatively impact the criminal justice system. In “11 Days a Snitch,” author Alexandra Natapoff discusses how removing confidential informants information from investigations bolsters law enforcement authority while reducing the ability of legislatures, the press and the public “to evaluate executive actors and hold them accountable.”

Natapoff, a professor at Loyola Law School in Los Angeles, is considered one of the nation’s leading experts in the use of confidential informants. She has testified before the U.S. House Judiciary Committee in 2007 and had a hand in writing legislation in Florida known as Rachel’s Law, which was enacted in the wake of a young drug informant’s death. Natapoff discuses the negative impacts that confidential informants have had upon the justice system:

  1. CONSTITUTIONAL RIGHTS ARE VIOLATED IN FAVOR OF KEEPING AN INFORMANT SECRET.

• The Fourth Amendment protects against unlawful search and seizure. That means, generally, police need a warrant and a judge’s signature for permission to enter a house or listen in on a private conversation. A confidential informant wearing a wire, however, does not have to jump through those hoops (though some states have barred warrantless use of informants in this regard).

• The Sixth Amendment guarantees defendants the right to confront any witnesses against them. With informant witnesses, however, judges have chipped away at this right, in some cases allowing prosecutors to keep informants’ identities a secret. In 2002, for example, the Ninth Circuit Court of Appeals tried to strike a balance by allowing a confidential informant to wear a “wig-and-mustache disguise” on the stand.

• The Fourteenth Amendment guarantees defendants due process, which includes a right to know all the evidence the state has, including evidence that could discredit the state’s witnesses. For snitches, that evidence could include criminal history and any benefit (such as leniency for their own crimes or cash) they receive in exchange for cooperating with law enforcement. However, the U.S. Supreme Court ruled in 2002 that defendants are not entitled to that information before trial. Specifically, the court was concerned that revealing those details “could ‘disrupt ongoing investigations’ and expose prospective witnesses to serious harm.'”

Natapoff argues this is significant because about 95 percent of criminal cases end in plea deals. That means most defendants are pleading guilty without knowing if the evidence against them is completely legit.

2. THE WAR ON DRUGS IS DRIVING THE USE OF INFORMANTS.

In 1995, decades into the war on drugs, lawyer and journalist Mark Curriden published an in-depth look at law enforcement’s extensive use of informants by analyzing more than 1,000 federal search warrants from 1980 to 1993. In that time frame, warrants that solely relied on information from a confidential source increased by nearly 200 percent — from 24 percent to 71 percent.

Although it’s impossible to get an accurate number of informants in the U.S., a recent audit of the DEA’s CI program cited more than 18,000 active confidential sources from October 2010 to September 2015. However, that same report found that “the DEA did not appropriately track all confidential source activity.”

3. THE RISK FOR ABUSE IS HIGH.

Natapoff discusses the case of four NYPD cops, who for decades have apparently fabricated sworn statements and arrests with the help of fictitious informants. A State Supreme Court judge in Brooklyn called one of the detectives “extremely evasive,” and did not find him “to be credible.” A judge in another federal case remarked: “I believe these officers perjured themselves. In my view, there is a serious possibility that some evidence was fabricated by these officers.”

“Given the reality that informant deals are baked into the criminal justice system, we are obligated to better regulate it,” Natapoff says. “We have fallen down in that regard. We have given such broad discretion to police and prosecutors and failed to create transparency and accountability mechanisms that would give us the confidence that these deals are being made in responsible ways.”

My opinion?
Transparency is essential to a fair and equitable criminal justice system. Knowing how we handle criminal behavior and dole out punishment allows the public to hold law enforcement accountable. The use of confidential informants, however, can pervert that premise in many ways.
As a criminal defense attorney, I’ve always believed the use of confidential informants entrap many into committing crimes they would otherwise not commit. Snitches are motivated/biased actors who are not professionally trained in law enforcement and have significant criminal histories. All of these facts decrease their credibility. Kudos to Natapoff for showing the truth.

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.

Court Denies Prosecutor’s “Missing Witness” Jury Instruction in DUI Case.

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, Evidence, Missing Witness Instruction, Self-Incrimination, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Houser, the WA Court of Appeals Division I held that in a DUI trial, Prosecutors are not entitled to a missing witness jury instruction if the real driver’s testimony would implicate themselves in the crime of failing to remain at the scene of a collision.

On May 19, 2013, defendant Steven Houser was involved in a car accident. He knocked on the door of nearby residence. The occupants observed Houser seemed excited and somewhat disoriented. He answered only a few questions and gave slow responses.

Emergency medical technicians arrived shortly after and attended to Houser. State Patrol Troopers noticed Houser had a swollen lip, bloodshot, watery eyes, and a flushed face. Houser told the trooper he had driven off the road and hit a pole. Houser said he had three to four beers that night and that he had been drinking all the way from a friend’s house to the scene of the accident.

The Trooper asked Houser if he was willing to submit to field sobriety tests. Houser agreed, and the trooper performed the horizontal gaze nystagmus test, which indicated impairment. Houser then agreed to a voluntary portable breathalyzer test. When the troopers arrested him, Houser became agitated and hostile, yelling, “I wasn’t even driving. My buddy was driving” and that they could not prove Houser was the driver.

After impounding the truck, the Troopers took Houser to the hospital and applied for a blood draw. He confirmed he had consumed alcohol within the last 24 hours, but denied driving. Houser’s blood draw registered a blood alcohol content level of 0.19, which was more than twice the legal limit. Houser was charged with felony DUI due to prior convictions.

At trial, Houser testified that a friend named “Gary” drove Houser’s truck because Houser had already been drinking beer. After getting some marijuana, they drove to a grocery store and Houser continued to drink beer. They then began driving to another friend’s house, and got into the accident along the way. Houser testified Gary was driving and Houser was in the passenger seat when the accident occurred. Houser remembered going off the road, but did not remember getting out of the truck.

He testified that Gary did not remain in the truck, but did not know what happened to him. Houser did not know how Gary got out of the truck or whether he was injured. He testified he had not been in contact with Gary since the accident, did not know how to contact him, and had not tried to contact him.

None of this information about “Gary” was provided to the Prosecutor before Houser testified.

After both sides had rested, the Prosecutor requested a missing witness jury instruction. For those who don’t know, the “missing-witness” rule—which developed from a century-old U.S. Supreme Court decision, Graves v. United States, 150 U.S. 118 (1893)—allows one party to obtain an adverse inference against the other for failure to call a controlled witness with material information.

Houser objected to the jury instruction, noting he had been unable to conduct an investigation to find Gary. The trial court allowed the instruction and permitted the State to refer to the defense’s failure to call Gary to corroborate Houser’s  theory of the case in its closing argument. The jury found Houser guilty.

Houser appealed. He argued his conviction should be reversed because the trial court misapplied the missing witness doctrine and improperly instructed the jury.

The Court of Appeals agreed with Houser.

The Court reasoned that the missing witness rule permits the jury to infer that evidence or testimony would be unfavorable to a party if that “‘evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it'” and that party fails to do so.

The Court emphasized the missing witness instruction “should be used sparingly.” Furthermore, the limitations on the application of the missing witness rule are particularly important when, as here, the doctrine is applied against a criminal defendant. “The doctrine applies only if several requirements have been satisfied,” said the court.

The court also reasoned the rule does not apply where the missing witness’s testimony, if favorable to the party who would naturally have called the witness, would necessarily be self-incriminating. The court reasoned that here, Houser testified that Gary was driving, Houser was in the passenger seat when the accident occurred, and Gary did not remain in the truck.

“Houser also testified about his injuries,” said the Court. “Thus, if Gary corroborated Houser’s testimony, Gary would necessarily have incriminated himself for failing to remain at the scene of an accident.” Since the core of Houser’s defense was that he was not driving; and that giving a missing witness instruction and allowing the Prosecutor to comment on Gary’s absence here substantially undercut Houser’s defense.

While there was evidence sufficient to support a conviction, there was not overwhelming evidence of guilt. Therefore, we cannot conclude the missing witness instruction, in combination with the prosecutor’s multiple references to Gary’s absence, was harmless.

The court reversed Houser’s conviction.

My opinion? Good decision. I’ve conducted jury trials where the Prosecutor has tried admitting Missing Witness Jury Instructions in the midst of trial. Luckily, most judges know these instructions should be used sparingly.

Worst-case scenario, Missing Witness Jury Instructions shift the burden to the Defendant to prove their defense. This small, yet subtle burden-shift has incredibly damaging implications which ultimately violate a defendant’s rights at trial. Remember, it’s the State – and not the defendant – who carries the burden of proof. The defendant has no burden of proving anything unless the defense is self-defense or other defenses requiring expert witnesses.

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.

Possessing Controlled Substances for Family Members.

"Plain Meaning" Rule, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jury Trial, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Yokel, the WA Court of Appeals Division II decided that it’s a valid defense for defendants to possess a controlled substance pursuant to a household member’s valid prescription.

On February 15, 2015, a police officer discovered defendant Mary Yokel’s car parked in front of a motel room. Yokel had an active arrest warrant. Officer Croy knocked on the motel room door and made contact with Yokel. He then arrested Yokel on the warrant and searched her person incident to arrest. During the search, Officer Croy located one pill in Yokel’s pants pocket and verified it was Vicodin, containing hydrocodone. Yokel said she was holding the Vicodin pill for her daughter, who has a valid prescription. The State charged Yokel with two counts of possession of a controlled substance.

At trial, Yokel wanted to introduce evidence that she possessed the Vicodin pursuant to her 16-year-old daughter’s valid prescription. Yokel’s defense was that on the day in question, she had taken two of the pills out of the Vicodin bottle, gave one to her daughter, and put the other one in her pocket after determining that her daughter should not take two pills.

However, the trial judge denied Yokel’s motion to continue the case to allow her daughter to testify. Also, the court granted the Prosecutor’s motion in limine to exclude any evidence regarding Yokel’s daughter’s valid Vicodin prescription.

As a result, at trial, Yokel was not allowed to testify that she possessed the controlled substance for the purpose of administering it to her daughter. The jury found Yokel guilty of one count of possession of a controlled substance (hydrocodone). Yokel appealed.

  1. RCW 69.50.4013(1) PROVIDES THE DEFENSE THAT DEFENDANTS MAY HOLD PRESCRIPTION PILLS FOR FAMILY MEMBERS.

Ultimately, the Court of Appeals agreed with Yokel that RCW 69.50.4013(1) permits a defendant to possess a household member’s valid prescription for a controlled substance. It reasoned the statute provides an affirmative defense to a person who lawfully possesses a controlled substance obtained “directly from” or “pursuant to” a valid prescription. By including these different phrases in the statute, the legislature indicated its intent that each phrase have a different meaning.

Additionally, former RCW 69.50.308 (2013), one of the Uniform Controlled Substances Act’s statutes, allows practitioners to dispense controlled substances to an “ultimate user” pursuant to a prescription. The Act defines an “ultimate user” as an individual who lawfully possesses a controlled substance for the individual’s own use.

Consequently, reasoned the Court, this definition of “ultimate user” indicates the legislature’s intent to allow an ultimate user to possess a controlled substance for the use of another household member:

“Interpreting former RCW 69.50.4013(1) as prohibiting ultimate users from lawfully possessing a controlled substance prescribed to another household member leads to an absurd result. Reading the statute in such a way criminalizes behavior that may involve a common caretaking function. For example, a son who picks up his bedridden father’s prescription medication or a mother who administers a prescription medication to her infant daughter would be in violation of the statute.”

2. THE RIGHT TO PRESENT A DEFENSE.

The Court of Appeals said the trial court violated Yokel’s constitutional right to present a defense when it suppressed her from testifying why she held the pill for her daughter. The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant the right to present a defense to the crimes charged.

Here, a defendant has the right to present admissible evidence in her defense and must show the evidence is at least minimally relevant to the fact at issue in her case.  Further, a defendant is entitled to a jury instruction supporting her theory of the case if there is substantial evidence in the record supporting it. “The trial court effectively barred Yokel from presenting a defense because it excluded all evidence regarding her daughter’s prescription and declined to give her proposed affirmative defense instruction,” reasoned the Court. “In light of our ruling above, the instruction and all evidence in support thereof should have been allowed at trial.”

The Court of Appeals concluded the trial court misinterpreted former RCW 69.50.4013(1) and, as a result, denied Yokel the right to present a defense. Therefore, it reversed Yokel’s conviction and remanded for a new trial.

My opinion? Excellent decision. The court rightfully went to arguments of statutory construction and interpreted the plain meaning of the statute to reach its decision. Well done.

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.