Category Archives: Skagit County Criminal Defense

Cities Can’t Criminalize Homelessness

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Great article by   of Curbed describes how the Ninth Circuit’s Martin v. City of Boise, held that city law enforcement cannot  arrest or punish people for sleeping on public property unless they provide adequate and relatively accessible indoor accommodations.

BACKGROUND FACTS

The Martin case, which originated in 2009 when six residents sued the city, argued that laws against sleeping in public and qualifying that action as Disorderly Conduct were unconstitutional, specifically discussed reasonable and accessible spots for everyone. That means having beds accessible for the disabled and for pregnant women and families. An important argument in the Martin case concerned faith-based services that required those staying there to pray in a certain manner. Judges declared spots that coerced religious observation were not accessible to all.

The April 1 decision by the Ninth Circuit Court of Appeals, which covers nine states in the western U.S. including California and Washington, rejects a petition to challenge a September ruling on the case. The 2-1 decision by a panel of three judges means that the earlier decision by the court stands, an affirmation of the theory that criminalizing people for camping of sleeping in public without any place to go is illegal.

“The government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

~Ninth Circuit Court of Appeals

The ruling means unless there is enough shelter space for the homeless population of a city such as Seattle or San Francisco, city officials can’t enforce anti-vagrancy laws or prohibitions against camping in public parks or sidewalks. The court can’t force cities to build adequate shelter space or homeless housing, but it can make it unconstitutional for them to criminalize homelessness until that burden has been met.

Reporter Patrick Sisson wrote that Eve Garrow, a homelessness policy analyst and advocate for the American Civil Liberties Union (ACLU), expects that advocacy groups such as her own will soon engage in proactive public education campaigns to ensure municipalities are aware of the Martin decision and the group’s interpretation of the court ruling.

“I do believe if cities and counties continue to enforce in a way that’s now clearly unconstitutional, advocacy organizations will engage in litigation to protect the civil rights of these people,” she says.

The legal reasoning grew out of an interpretation of the Eighth Amendment and its prohibition on cruel and unusual punishment, according to Ms. Garrow.

“You’re criminalizing someone for behavior that’s unavoidable,” she says. “Everyone has to sleep.” In effect, she says, municipal laws that ban sleeping in public are making it illegal to be poor.

Steve Berg, vice president of programs and policy for the National Alliance to End Homelessness, says the decision has gotten a lot of attention, and will hopefully accelerate the movement towards more supportive housing and services.

“There are still too many people in local governments who think the right answer to homelessness is arresting people,” he says.

Good decision, Ninth Circuit.

A Snowmobile Is Not a Motor Vehicle

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In State v. Tucker, the WA Court of Appeals held that a snowmobile is not a “motor vehicle” for purposes of RCW 9A.56.65, which makes it a class B felony to commit theft of a motor vehicle.

BACKGROUND FACTS

In February 2016, Ms. Tucker and her accomplice broke into a cabin near Stampede Pass. The cabin was accessible only by snowmobiles. The pair stole several items of personal property, including a snowmobile.

The State charged Ms. Tucker with residential burglary, second degree theft, theft of motor vehicle, and third degree malicious mischief. A jury found Ms. Tucker guilty of first degree criminal trespass and theft of motor vehicle, but could not reach a verdict on the charge of second degree theft. The trial court declared a mistrial on that count, and it later was dismissed without prejudice.

Defense counsel, relying on State v. Barnes, filed a motion to arrest judgment on the theft of a motor vehicle conviction. The trial court denied the motion on the ground that the snowmobile was licensed and has a motor. Ms. Tucker timely appealed this aspect of her conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals reviewed existing caselaw under State v. Barnes and concluded that, similar to the riding lawn mower in the Barnes case, a snowmobile is not a motor vehicle.

“Here, a snowmobile is not a car or other automobile. To paraphrase the Barnes lead opinion, the legislature was responding to increased auto thefts, not increased snowmobile thefts.”

The Court of Appeals rejected the State’s argument that the stolen snowmobile should be classified as a motor vehicle because at the time and place it was stolen, a snowmobile was the only vehicle capable of transporting people or cargo. It reasoned that transporting people or cargo is not the touchstone agreed to by six justices in the Barnes Case.

“The concurring justices never stated that transporting people or cargo was a relevant consideration,” said the Court of Appeals. “Also, the lead and concurring justices also required the vehicle to be a car or other automobile. A snowmobile obviously is not a car or other automobile.”

The Court of Appeals concluded that because a snowmobile is not a car or other automobile, a snowmobile is not a motor vehicle for purposes of the statute. The Court reversed Ms. Tucker’s conviction for theft of motor vehicle and instructed the trial court to dismiss that conviction.

My opinion? Excellent decision. The Court appropriately relied on the Barnes decision and made the right decision.

Contact my office if you, a friend or family member are inaccurately charged with a crime which does not meet statutory definitions or the elements of the allegations. Chances are, a well-timed motion to dismiss the charges could win the day.

“Am I Free To Leave?”

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In State v. Johnson, the WA Court of Appeals held that a “seizure” of a person occurs when an officer’s words and action would have conveyed to an innocent person that his or movements are being restricted. Officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure.

BACKGROUND FACTS

Officer Yates and Officer George of the Lynnwood Police Department were engaged in a proactive patrol late at night in an area known to have a high rate of criminal activity. The officers observed a silver vehicle enter a motel parking lot and park in a stall. After the vehicle came to rest, about a minute and a half passed without any person entering or leaving the vehicle. The officers became suspicious that its occupants were using drugs.

The officers, both of whom were armed and in uniform, approached the vehicle on foot and stood on opposite sides adjacent to the driver’s and passenger’s doors. They shined flashlights into the vehicle’s interior to enable them to see the vehicle’s occupants and ensure that neither was holding anything that could put the officers in danger. Because the vehicle was also flanked on both sides by cars parked in adjoining stalls, the officers had minimal space to move.

Officer Yates did not see any drugs or drug paraphernalia when he shined his flashlight inside the passenger compartment. Inside were the defendant Mr. Johnson and a female passenger.

Officer Yates stood on the passenger side while Officer George stood adjacent to the driver’s door. Yates sought to start a conversation with Johnson, who was in the driver’s seat, and did so by asking, “Hey, is this Taylor’s vehicle?” In fact, there was no “Taylor”; the ruse was intended to make Johnson feel more comfortable, in the hope that he would talk with the officer. Johnson appeared confused by the question, and Yates asked, again, whether the vehicle was “Taylor Smith’s vehicle.” In response, Johnson stated that the vehicle was his own and that he had recently purchased it.

Meanwhile, Officer George, who was leaning over the driver’s side door, noticed a handgun placed between the driver’s seat and the door.

George alerted Yates to the presence of the firearm, drew his own handgun, opened the driver’s door and removed the weapon from Johnson’s vehicle. Subsequently, Johnson was removed from the vehicle. Meanwhile, police dispatch informed the officers that Johnson’s driver’s license was suspended in the third degree, and that he had an outstanding arrest warrant and a felony conviction. The officers then informed Johnson that he was being detained but not placed under arrest and advised him of his Miranda rights.

Eventually, Johnson was charged with unlawful possession of a firearm in
the first degree.

Before trial, Johnson moved to suppress the evidence of the gun found in his possession, contending that it was found attendant to his unlawful seizure. After an evidentiary hearing, the trial court granted Johnson’s motion. However, the judge did not make a determination as to whether Johnson was seized prior to the discovery and removal of the firearm, instead ruling that the encounter was a “social contact” and that “law enforcement had an insufficient basis to initiate a social contact.” The trial court further acknowledged that granting the motion to suppress essentially terminated the State’s case. The State appeals from the order granting Johnson’s motion.

COURT’S ANALYSIS & CONCLUSIONS

“In a constitutional sense, the term “social contact” is meaningless. The term has been adopted by lawyers and judges to describe circumstances that do
not amount to a seizure.”

The Court of Appeals further reasoned that term has been adopted by lawyers and judges to describe circumstances that do not amount to a seizure. It explained, for example, that a social contact is said to rest someplace between an officer’s saying ‘hello’ to a stranger on the street and, at the other end of the spectrum, an investigative detention (i.e., Terry stop).

“Fortunately, seizure jurisprudence is well-developed,” said the Court. It said the WA Constitution does not forbid social contacts between police and citizens. A police officer’s conduct in engaging a defendant in conversation in a public place and asking for
identification does not, alone, raise the encounter to an investigative detention. Not
every encounter between a police officer and a citizen is an intrusion requiring an
objective justification. Thus, the police are permitted to engage persons in conversation and ask for identification even in the absence of an articulable suspicion of wrongdoing.

“However, officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure. The test is whether a reasonable person faced with similar circumstances would feel free to leave or otherwise terminate the encounter.”

The Court of Appeals held the search and seizure unlawful. In the instant case, the defendant was seized when officers asked for proof of his identity under a totality of the circumstances analysis as (1) the defendant was seated in a parked car that was flanked by cars parked in each of the adjoining spaces when the two uniformed officers stood adjacent to the vehicle’s doors, such that neither the defendant nor his passenger would have been able to open the doors and walk away from the vehicle without the officers moving or giving way; (2) the defendant could not move his vehicle in reverse without risking his car making contact with one or both of the officers and a barrier prevented the vehicle from pulling forward, (3) the officers illuminated the interior of the vehicle with flashlights, and (4) the officers used a ruse to begin the contact, asking “Is this Taylor’s car?” (5) when the officers approached the vehicle and initiated a conversation with Johnson, they saw him seated with a female passenger and neither officer observed any signs of drug use, (6) Johnson was cooperative with Officer Yates and answered his questions, and (7) beyond the aforementioned hunch, the officers were aware of nothing that constituted a reasonable, articulable suspicion of potential criminal activity.

With that, the Court of Appeals held that the trial court did not err in granting
Johnson’s motion to suppress evidence of the subsequently discovered firearm.

My opinion? Good decision. Please contact my office if you a friend or family member are arrested for a crime and believe an unlawful search or seizure happened. Hiring an experienced defense attorney is the first and best step toward justice.

Suppress Evidence or Dismiss the Case?

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In State v. McKee, the WA Supreme Court held that when an appellate court vacates a conviction that is obtained with illegally seized evidence, the remedy is remand to the trial court with an order to suppress evidence and not out-rightly dismiss the case in its entirety.

BACKGROUND FACTS

A jury convicted Mr. McKee of four counts of possessing Depictions of Minors Engaged in Sexually Explicit Conduct. The Court of Appeals reversed those convictions on the ground that police had used an overbroad search warrant to obtain the underlying cell phone photos and videos.

The Court of Appeals reversed the conviction. Although the Court of Appeals provided no reasoning to justify that remedy, it appears to have thought dismissal was warranted because once the cell phone evidence was suppressed, there would be insufficient evidence to sustain the convictions at a second trial.

The State appealed on arguments that the Court of Appeals mistakenly reversed the conviction. It argued that dismissal was inappropriate because that testimony—i.e., the evidence that was not tainted by the invalid search warrant— would be sufficient to sustain the Possessing Depictions convictions on retrial.

LEGAL ISSUE

Whether the Court of Appeals erred when it dismissed the convictions after suppressing the cell phone evidence, thus barring any possibility of a retrial.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that the typical remedy for a Fourth Amendment violation is suppression, not dismissal. Furthermore, the remedy of dismissal typically applies only when a conviction is reversed for insufficient evidence or the government’s misconduct has prejudiced the defendant and materially affected the possibility of a fair trial.

“The logic underlying this rule is that a reversal for insufficiency is tantamount to an acquittal, but a reversal for any other trial court error is not,” reasoned the WA Supreme Court. “A reversal for insufficiency indicates the government had its chance and failed to prove its case, while a reversal for another trial error indicates only that the defendant was convicted through a flawed process.”

This rule applies whenever the erroneous admission of evidence requires reversal, including when error stems from an illegal search or seizure.

“Thus, in a case like this one, an appellate court does not evaluate the sufficiency of the untainted evidence remaining after suppression. Provided the total evidence (tainted and untainted) was sufficient to sustain the verdict, the remedy is limited to reversal and suppression.”

With that, the WA Supreme Court reversed the Court of Appeals and remanded to the trial court for further proceedings consistent with the order to suppress evidence seized as a result of the faulty warrant.

Please contact my office if you, a friend or family member face criminal charges  involving a questionable search and seizure. Briefing and arguing a well-supported 3.6 Motion to Suppress Evidence could ultimately result in the charges getting dismissed.

Neuroscience Defense

Illustration of man holding knife while being controlled by DNA puppet strings.
Incredibly interesting article by reporter Jon Schuppe of NBC News discusses how more criminal defendants are turning to brain science to argue that they shouldn’t face harsh punishment.

Mr. Schuppe’s story focused on the criminal defense of a man named Anthony Blas Yepez who was convicted of second degree murder and also suffered from a rare genetic abnormality linked to sudden violent outbursts. Here, Yepez discovered that a genetic deficiency — a variant of a gene named MAO-A, which regulates aggressive behavior in men — along with abuse he had suffered as a child were partly to blame for his crime. As of now, the New Mexico Supreme Court is considering whether Mr Yepez’ appeal on the issue of whether he was in control of himself when he committed the crime.

The court’s decision — still months away — could accelerate a trend in the criminal justice system: the use of behavioral genetics and other neuroscience research, including the analysis of tumors and chemical imbalances, to explain why criminals break the law. The rapidly developing field is forcing officials to confront new questions about how changes in the brain influence behavior — leading some to rethink notions about guilt and punishment.

According to Schuppe’s article, this cutting-edge evidence, collected through brain scans, psychological exams and genetic sequencing, has been deployed in a range of ways: to challenge whether a defendant was capable of premeditated murder, whether a defendant was competent to stand trial, whether a defendant should be put to death. Most of those attempts to use neuroscience as a defense have failed, researchers say. But some — about 20 percent, according to one study — have worked, winning defendants new hearings or reversals of convictions.

Mr. Yepez’s genetic mutation was first documented in 1993 in members of a Dutch family with a severe version that has since been found in a handful of families worldwide. There are less extreme, and less rare, versions that have been linked to an increased risk of criminal convictions — but only among men who also suffered from abuse as children. Some researchers began dubbing MAO-A the “warrior gene,” a term that was picked up by documentary filmmakers, talk show hosts and consumer-DNA testing companies.

Mr. Yepez’s defense attorney Ian Loyd went online and found a commercial genetic testing company, FamilyTreeDNA, that charges $99 to determine if someone has the MAO-A deficiency. He had one of his investigators visit Yepez at the Santa Fe County jail, where he swabbed Yepez’s cheek for cells. A few weeks later, the results came back positive.

At trial, attorney Loyd tried admitting the evidence to the jury. Unfortunately, the trial judge suppressed the evidence. Afterward, the jury ─ unaware of Yepez’s genetic mutation ─ convicted him of second-degree murder. The judge sentenced him to 22 years in prison. His lawyers said they hope the state Supreme Court will grant him a new trial, this time using the genetic evidence to help explain the killing.

Helen Bennett, the lawyer representing Yepez before the state Supreme Court, said the case will test how neuroscience is complicating determinations of whether someone intended to commit a crime.

“These genetic markers and the way we’re learning how they operate in the brain makes the determination of intent much more nuanced,” Bennett said.

A GROWING STRATEGY

According to Schuppe’s article, the growth of neuroscience evidence — typically in the form of brain scans and psychological tests — dates back about three decades. It has most often been used to seek leniency for juveniles or against the death penalty for killers. But the strategy has expanded to a wider set of cases.

Behavior is determined by a multitude of forces within the brain, with genes only providing a starting point, researchers say. A person’s experiences or environment play a large role. And it’s difficult to show a direct cause and effect involving a particular condition.

“Year after year, more and more criminal defendants are using neuroscience to bolster their claims of decreased responsibility for their criminal conduct and decreased moral culpability relevant to their sentencing,” said Nita Farahany, a law and philosophy professor at Duke University who wrote in a study published in the January issue of the Annual Review of Criminology.

Many scientists and researchers point out that prosecutors, too, might one day seize on neuroscientific evidence, using it to argue that a defendant is dangerous and should be punished harshly.

My opinion? It’s utterly fascinating how our advancements in science can magnify and cross over into actual defenses in criminal law. Is it nature, nurture or a combination of both which leads people to commit crimes?

Please contact my office if you, a friend or family member are charged with a crime and a brain abnormality may be the cause. I’ve achieved excellent results for clients having diagnosable brain injuries and/or suffered from other medical issues like slow-wave sleep,  which is a sleepwalking disorder associated with violent behavior. These medical ailments, and others like them, can support a Diminished Capacity defense.

Opioid Company Faces Federal Criminal Charges

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Great article from NBC by Tom Winter and Elisha Fieldstadt describes how a major opioid drug distribution company, its former chief executive and another top executive have been criminally charged in New York.
Rochester Drug Co-Operative, one of the top 10 largest drug distributors in the United States, was charged with conspiracy to violate narcotics laws, conspiracy to defraud the U.S., and willfully failing to file suspicious order reports. Laurence Doud III, the company’s former chief executive, and William Pietruszewski, the company’s former chief compliance officer, face these charges. Both Doud, 75, and Pietruszewski, 53, face life in prison.
“This prosecution is the first of its kind: Executives of a pharmaceutical distributor and the distributor itself have been charged with drug trafficking, trafficking the same drugs that are fueling the opioid epidemic that is ravaging this country,” U.S. Attorney Geoffrey Berman said. “Our office will do everything in its power to combat this epidemic, from street-level dealers to the executives who illegally distribute drugs from their boardrooms.”
According to the news article, between 2012 and 2016, Rochester Drug Co-Operative is accused of distributing tens of millions of doses of oxycodone, fentanyl and other opioids to pharmacies that its own compliance department found had no legitimate need for them.
The company identified about 8,300 “potentially suspicious ‘orders of interest,’ including thousands of oxycodone orders,” between 2012 and 2016, but only reported four, the U.S. attorney said.
In that time, Rochester Drug Co-Operative’s sales of oxycodone tablets grew almost nine-fold, from 4.7 million to 42.2 million, prosecutors said. Their fentanyl sales grew from approximately 63,000 dosages in 2012 to more than 1.3 million in 2016.
Also during that same time, Doud’s compensation ballooned to $1.5 million a year.
Rochester Drug Co-Operative announced it has entered into a plea agreement in the criminal case and a settlement in the civil case. The company has agreed to admit to the accusations, submit to supervision by an independent monitor, reform its compliance program and pay a $20 million fine.
My opinion? I hope these companies face justice. Every day, more than 130 people in the United States die after overdosing on opioids. The misuse of and addiction to opioids—including prescription pain relieversheroin, and synthetic opioids such as fentanyl—is a serious national crisis that affects public health as well as social and economic welfare.
Please contact my office if you, a friend or family member are charged with a crime they allegedly committed while under the influence of opioids.  The defense of Diminished Capacity may exist to exonerate them of any crimes.

Necessity Defense vs. Climate Change

In State v. Ward, the WA Court of Appeals held that a defendant who was charged with burglary in the second degree after he broke into a pipeline facility and turned off a valve, which stopped the flow of Canadian tar sands oil to refineries in Skagit and Whatcom Counties, was entitled to argue a necessity defense to the jury. The defendant contended that his commission of the crime was necessary to avoid harm to the climate, as governments had failed to meaningfully address the crisis of climate change.

BACKGROUND FACTS

Kinder Morgan transports tar sands oil from Canada into the United States by pipeline. On October II, 2016, Kinder Morgan was notified by telephone that persons “would be closing a valve, one of our main line valves in the Mount Vernon area within the next 15 minutes.” Following the call, Ward cut off a padlock and entered the Kinder Morgan pipeline facility off of Peterson Road in Burlington, WA. Ward then closed a valve on the Trans-Mountain pipeline and placed sunflowers on the valve. At the same time, other protesters closed similar valves in North Dakota, Montana, and Minnesota. Collectively, the protests temporarily stopped the flow of Canadian tar sands oil from entering into the United States.

Ward was arrested at the pipeline facility and charged with burglary in the second degree, criminal sabotage, and criminal trespass in the second degree. Ward admitted his conduct but argued that his actions were protected under a necessity defense. The trial court granted the State’s pretrial motion in limine to preclude all witnesses and evidence offered in support of Ward’s necessity defense.

Ward’s first trial ended with a hung jury. The State then recharged Ward with burglary in the second degree and criminal sabotage. Ward moved for reconsideration of the trial court’s order granting the State’s motion in limine. In support of his motion, Ward offered argument, the curriculum vitae for eight proposed expert witnesses, and voluminous scientific evidence documenting the impacts of climate change, that climate change is primarily caused by greenhouse gas emissions resulting from human activity, and the contribution of burning tar sands oil. The trial court denied Ward’s motion for reconsideration and excluded all testimony and evidence in support of Ward’s necessity defense. A second jury found Ward guilty of burglary but were unable to return a verdict on criminal sabotage.

Ward appealed on arguments that the trial court denied his constitutional right to present a defense by striking all testimony and evidence of necessity.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that the Sixth Amendment to the United States Constitution and article 1, sections 21 and 22 of the Washington Constitution guarantee a defendant the right to trial by jury and to defend against criminal allegations. If Ward submitted a sufficient quantum of evidence to show that he would likely be able to meet each element of the necessity defense, then the trial court’s exclusion of evidence in support of his sole defense violated Ward’s constitutional rights.

NECESSITY DEFENSE

The Court explained that the Necessity is available when the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law. To successfully raise the necessity defense the defendant must prove, by a preponderance of the evidence, that: (1) they reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative existed.

THE NECESSITY DEFENSE APPLIES

The Court held that that here, Ward’s necessity defense applies. In short, Ward’s past successes in effectuating change through civil disobedience in conjunction with the proposed expert witnesses and testimony about Ward’s beliefs were sufficient evidence to persuade a fair minded, rational juror that Ward’s beliefs were reasonable.

First, Ward offered evidence that he has been working with environmental issues for more than 40 years but that the majority of his efforts failed to achieve effective results. Ward asserted that because of these failures he came to understand that the issue of climate change would require other than incremental change and that direct action was necessary to accomplish these goals.

Second, Ward offered sufficient evidence to show that the harms of global climate change were greater than the harm of breaking into Kinder Morgan’s property. Ward asserted that the extent of the harm resulting from his actions were the loss of a few locks and the temporary inconvenience to Kinder Morgan’s employees. Compared to this, Ward introduced “voluminous scientific evidence of the harms of climate change.”

“When civil disobedience and the necessity defense intersect, it is the intent of the protester, not the effectiveness of the protest, that is of the utmost relevance.”

Furthermore, the Court of Appeals reasoned that Ward’s actions were not intended to be merely symbolic in nature because the harms that Ward asserted he was trying to alleviate were more than just climate change, generally, but also included both the specific dangers of Canadian tar sands oil and the impacts of sea level rise on Washington.

“As such, the evidence he planned to introduce was not solely aimed at inducing jury nullification and the trial court erred in preventing Ward from introducing evidence in support of his necessity defense,” said the Court of Appeals.

With that, the Court of Appeals reversed and remanded Ward’s conviction.

My opinion? I’m proud and impressed that our Court of Appeals allowed such a broad and permissive view of the Necessity defense. Apparently, the harm that climate change brings may necessitate  drastic measures.

Please contact my office if you, a friend or family member face criminal charges where the Necessity Defense could be argued and proven. Cases like State v. Ward show that a strong, well-supported defense of Necessity should be liberally given to juries when the facts support the defense. Kudos to Mr. Ward’s defense counsel for taking the case to jury, appealing the judge’s rulings and getting a successful outcome on appeal. Excellent work.

Books Banned in WA Prisons

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Excellent article by reporter of Bookriot.com discusses how the Washington State Department of Corrections adopted a policy which disallows books to be donated to prisons via nonprofit organizations.

“So quietly, in fact, that one of the largest nonprofits that works to get donated materials to prisoners was taken by surprise to discover the change,” reports Ms. Jensen. “They weren’t informed before it was implemented.”

Fortunately, Books to Prisoners, a nonprofit organization located in Seattle, is ready to fight it.

One of the reasons noted for this sudden policy change is the lack of staff in mail rooms to determine whether or not materials sent are appropriate or whether they’re hiding contraband. Likewise, additional funding and resources are not available to the Washington State Library (WSL).

“This highlights exactly why Books to Prisoners and similar nonprofits do the work that they do — these facilities are underfunded and that lack of funding impacts the individuals who use those books to improve themselves and their own literacy,” says Jensen. “These book donations, which are thoroughly inspected by those at the nonprofit for suitability, fill a critical role in helping those incarcerated who otherwise lack access to vital educational tools.”

Books to Prisoners has sent free books to prisoners across the country since 1973. They note in a tweet “Attempted bans pop up sometimes, most recently by Pennsylvania DOC in 2018, always using same vague “safety” justification. In 45 years, our books have never had contraband.” They added, “Given that we’ve sent books without issue since 1973, and currently send to 12,000 unique prisoners across almost every state in the country each year, it would be bewildering if after 46 years of work as an award-winning nonprofit we decided to start transporting contraband.”

According to Jensen, prison libraries are severely underfunded; and there’s a lack of staff as well. And as Books to Prisoners notes, “Furthermore, the reason that we send books directly to the hands of prisoners is that libraries are chronically underfunded and understaffed.” Barring access to literature, which is what this policy does, hinders those who need it most.

Other states, including New York, have tried similar bans and they’ve been rescinded. The ACLU has stepped in in similar attempted book bans in prison as well.  Criminal justice reform includes ensuring that those who are incarcerated have rights to literature and education, so steps like these by the Washington Department of Corrections are but steps backwards. To combat recidivism, literacy is one of the crucial steps forward, and yet, situations like these further hinder rehabilitation and self-development of those who most need it.

A CALL TO ACTION

If you’re in Washington or anywhere in the US, speak up about this policy to help get it changed. Contact Prisons Division Correctional Manager Roy Gonzalez at rgonzalez@doc1.wa.gov or by phone at 360-725-8839. You can also sign the petition to stop the ban or donate to Books to Prisoners to help support their efforts in getting the policy reversed.

“Spread the word. Share this and any tweets, petitions, or phone blitz information among your friends, family, and colleagues,” says Jensen.

 

Credit Card Value

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In State v. Sandoval, the WA Court of Appeals held that an access device (credit card) need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner.

BACKGROUND FACTS

Ms. Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it. After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

Eventually, the police found Sandoval and her husband in the stolen vehicle at the address
listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and
searched her incident to that arrest. In Sandoval’s purse, the police found a credit card with somebody else’s name on it, Sandoval’s sister’s birth certificate, and a pipe with methamphetamine residue.

The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card’s owner cancelled the card.

The State charged Sandoval with possession of a stolen vehicle, possession of stolen property in the second degree, identity theft in the second degree, and possession of a controlled substance.

At trial, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

The court defined an access device as, “any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value. In the same instruction, the court stated, “The phrase ‘can be used’ refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time.

The jury convicted Sandoval on all charges except identity theft in the second degree. The
State dismissed that charge.

Sandoval appealed on the argument that an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 9A.56.010(1) defines “access device” as any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

Here, the Court of Appeals upheld the trial court’s definition containing the phrase “can be
used,” a phrase which is not statutorily defined. It reasoned that under State v. Schloredt, it was irrelevant whether a victim cancelled his or her account prior to a defendant’s arrest in determining whether stolen credit cards were “access devices” under the statute. Similar to the facts in Schloredt, it was irrelevant that the credit cards Ms. Sandoval possessed were cancelled by its lawful owner.

Also, the Court of Appeals rejected Sandoval’s argument that she received ineffective assistance of counsel when her attorney failed to request a jury instruction for unwitting possession as an affirmative defense for her possession of a controlled substance charge.

The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Furthermore, in an ineffective assistance of counsel claim, prejudice exists if there is a reasonable probability that, except for counsel’s errors, the results of the proceedings would have differed.

Here, the Court reasoned that Sandoval testified that she obtained the credit card and methamphetamine pipe at the same time, and both items were found on Sandoval in the same location. Therefore, if the jury found that the State carried its burden in showing beyond a reasonable doubt that Sandoval knowingly possessed the credit card, then it is doubtful that Sandoval could have carried her burden to show, by a preponderance of the evidence, that she unwittingly possessed the methamphetamine pipe.

“Thus, we conclude that it was not reasonably probable that the jury would have found Sandoval not guilty of possession of a controlled substance if they had been instructed on the unwitting possession defense.”

Therefore, the Court reasoned that Sandoval was not prejudiced by her counsel’s failure to request the instruction. Because Sandoval has not met her burden to prove prejudice, her ineffective assistance of counsel claim fails.

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

Washington Crime Report Released

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The Washington Association of Sheriffs and Police Chiefs (WASPC) just released its 2017 Crime in Washington Annual Report.

It was compiled from data submitted to the Washington State Uniform Crime Reporting Program of the WASPC by Washington State law enforcement agencies.

FACTS AT A GLANCE

  • In 2017, Crimes Against Persons showed an increase of 0.4% with 84,145 offenses reported; compared to 2016 offenses reported of 83,771.
  • In 2017, Crimes Against Property showed an decrease of 6.7% with 295,274 offenses reported; compared to 316,361 offenses reported in 2016.
  • In 2017, Crimes Against Society showed an increase of 5.9% with 32,011 offenses reported; compared to 30,230 offenses reported in 2016.
  • Group A offenses were cleared by arrest or exceptional means 25.6% of the time.
  • The crime rate (per 1,000 in population) for Group A offenses was 69.1.
  • The total arrest rate per 1,000 in population was 25.6.
  • Juveniles comprised of 6.9% of the total arrests.
  • Domestic Violence offenses made up 50.4% of all Crimes Against Persons.
  • A total of 25,400 persons were arrested for DUI, including 163 juveniles.
  • A total of 531 hate crime incidents were reported.
  • There were a total of 1,643 assaults on law enforcement officers and no officers killed in the line of duty.
  • Full-time law enforcement employees totaled 15,873; of these 11,078 were commissioned officers.
  • There were 11,986 arrests for drug abuse violations; of that number, 10.2% were persons under 18 years of age.
  • Possessing/concealing of marijuana constituted 16.7% of the total drug abuse incidents; the distributing/selling of marijuana accounted for 1.1% of incidents(type of criminal activity can be entered three times in each incident).
  • Possessing/concealing of heroin constituted 32.2% of the total drug abuse incidents; the distributing/selling of heroin accounted for 4.6% of incidents (type of criminal activity can be entered three times in each incident).
  • The weapon type of “Personal Weapons” (hands, fists or feet) was reported in 51,817 incidents; firearms were reported in 8,465 incidents (up to three weapons can be reported in each incident).
  • There were 6,212 sexual assault (forcible and non-forcible) incidents reported in 2017. There were a total of 6,212 victims in these incidents; with a total of 6,300 offenders.
  • There were a total of 54,294 domestic violence incidents reported; 12,023 of these incidents were Violations of Protection or No Contact Orders.

Overall, the data is very interesting.

Please contact my office if you, a friend or family member are charged with a crime. Consultations are free. I provide effective criminal defense for people charged with felonies and misdemeanors. It is extremely important to hire an attorney like myself who is willing to devote significant attention to the case. I say this because people convicted of a crime face more than just criminal penalties. They also face a potential lifelong social stigma, as well as diminished employment, housing and educational opportunities. I proudly represent clients in Skagit and Whatcom County, Washington.