Category Archives: Studies

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.

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.

 

Many Washington Inmates Are Eligible for Release.

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Excellent article by  reporter Chad Sokol of the Spokesman Review describes how, on any given day, thousands of inmates in Washington jails are eligible to be released based on their likelihood to commit new crimes and show up to court before trial, according to a new report from the state auditor’s office.

Auditors found roughly one-third of the state’s jail inmates are candidates for pretrial services such as electronic monitoring, mental health and substance abuse treatment, and texts and phone calls that remind people of court dates.

The auditors also found the cost of incarceration significantly outweighs the cost of pretrial services, concluding such reforms could save $6 million to $12 million in taxpayer money each year while maintaining public safety.

The audit, published last week, makes no policy recommendations but reaffirms what criminal justice activists have been saying for years: The cash bail system disadvantages the poor and fuels recidivism.

“When defendants cannot afford to pay bail, they remain in jail until the trial. Keeping them in jail is costly to the taxpayers . . . Perhaps more importantly, extended jail time before trial can have significant consequences for defendants, as they become more likely to be convicted, more likely to receive a longer sentence, and less likely to gain and maintain future employment.” ~ WA State Auditor’s Office

According to reporter Sokol, the state auditors examined 2016 jail inmate data using the Public Safety Assessment, a risk-assessment tool created by the Laura and John Arnold Foundation. About half of the 4,700 inmates deemed eligible for release were considered likely to reoffend without monitoring and services, while the rest were considered low-risk.

The auditors specifically examined data from Spokane and Yakima counties, which have made concerted efforts to reduce jail overcrowding and eliminate socioeconomic disparities. The auditors found that defendants given pretrial services reoffended at slightly lower rates than those released on bail, but in Spokane County the difference was not statistically significant.

Defendants released through pretrial services in Spokane County, however, were much more likely to show up to court than those released on bail, the auditors found. Failure-to-appear rates for the two groups were 38 percent and 53 percent, respectively.

The audit accompanies another report, published in February by Washington’s Pretrial Reform Task Force, which makes a range of policy recommendations aimed at safeguarding the presumption of innocence enshrined in the Constitution.

“The use of a pretrial services department can be really helpful in assisting people getting to court or remembering court dates,” said Municipal Court Judge Mary Logan, who co-authored the task force report with state Supreme Court Justice Mary Yu and King County Superior Court Judge Sean O’Donnell.

Logan noted bail is “not supposed to be a punitive measure,” and with few exceptions, court rules require defendants be released before trial. The task force concluded the government – not defendants – should bear the cost of pretrial services.

“Accused persons cannot and should not be required to incur additional costs or debts as a result of their participation in pretrial services,” they wrote.

Spokane County’s criminal justice administrator, Maggie Yates, said the task force report validates the county’s reform efforts funded by the MacArthur Foundation.

My opinion? This is good news. Releasing individuals when it’s appropriate not only makes sense legally, but ethically and financially as well. Individuals facing charges may continue to support their families, pursue and maintain employment, and seek out mental health or substance use treatment while navigating court proceedings. The resulting stability only makes our community safer.

Please contact my office if you have a friend or family member who is incarcerated and facing criminal charges. Under CrR 3.2, judges have options to lower bail or release defendants on their personal recognizance while the charges are pending.

Seattle Police Accountability Report: More Use of Force Against African Americans

Excellent article by of the Seattle Times reports that Seattle police are using force at low levels but still can’t fully explain why it is used against African Americans at disproportionately higher rates, according to the department’s annual report submitted to the federal judge overseeing court-ordered reforms.

The Seattle Police Department last week filed its 2019 Use of Force report, which shows that the use of force by officers remained “extraordinarily low” last year.

Officers reported using force at a rate of less than one quarter of 1 percent out of the nearly 400,000 incidents to which they responded, the report said. That’s in line with the rate reported a year earlier.

According to Miletich, the report is part of a series to show whether federally-mandated police reforms are being sustained, with an ultimate goal of terminating a court-ordered agreement by 2020. The updates are being provided to U.S. District Judge James Robart, who last year found the city in full compliance with the main terms of a 2012 consent decree with the U.S. Justice Department.

Judge Robart’s ruling triggered a two-year period in which the city must demonstrate that it is maintaining reforms to address allegations of excessive force and issues of biased policing. The city took the lead role in carrying out a self-analysis, although the Justice Department and the court’s monitor, Merrick Bobb, scrutinize the progress.

The police department’s use-of-force reports follow Bobb’s key finding in April 2017 that the department had made a dramatic turnaround. He concluded that overall use of force was down, and that when officers used it, it was largely handled in a reasonable way consistent with department policies.

Still, as in the 2018 report, the new figures show a disparity in the use of force against African Americans. Black males represented 32 percent of cases involving males, up from 25 percent a year earlier. Cases involving black females surged to represent 22 percent of incidents where force was used against females, compared with 5 percent in 2017. African Americans make up about 7 percent of Seattle’s population.

Racial disparity is a “significant ongoing concern” requiring further discussion and analysis within the limited role of law enforcement, the report said.

Yet current sociological and criminal-justice research has not found proven reliable methodology for accounting for all the “multitude of recognized factors” that may combine to result in the disparity, including education, socioeconomic status and family structure, the report said.

“In other words, while numbers can identify a disparity, they cannot explain the disparity,” the report said. At any rate, the police department said it would continue to consult academic experts to learn more, including the possible effects of implicit bias.

Please contact my office if you, a friend or family member had a negative experience which police which turned inappropriately violent. Although police officers have difficult jobs, police misconduct still exists.

Fentanyl Is the Deadliest Drug

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Excellent article by  of USA Today discussed a recent report from the from the Centers for Disease Control and Prevention finding that Fentanyl is now the deadliest drug in America, with more than 18,000 overdose deaths in 2016, the most recent year for which statistics are available.

It’s the first time the synthetic opioid has been the nation’s deadliest drug. From 2012 to 2015, heroin topped the list.

For those who don’t know, fentanyl is a synthetic opioid that is 80-100 times stronger than morphine. Pharmaceutical fentanyl was developed for pain management treatment of cancer patients, applied in a patch on the skin. Because of its powerful opioid properties, Fentanyl is also diverted for abuse. Fentanyl is added to heroin to increase its potency, or be disguised as highly potent heroin. Many users believe that they are purchasing heroin and actually don’t know that they are purchasing fentanyl – which often results in overdose deaths.

On average, in each year from 2013 to 2016, the rate of overdose deaths from Fentanyl increased by about 113 percent  a year.  The report said fentanyl was responsible for 29 percent of all overdose deaths in 2016, up from just 4 percent in 2011.

Overall, more than 63,000 Americans died of drug overdoses in 2016, according to the report, which was prepared by the National Center for Health Statistics, part of the U.S. Centers for Disease Control and Prevention.  That’s an average of 174 deaths  a day.

The study also said many people who die from overdoses have multiple drugs in their system. “We’ve had a tendency to think of these drugs in isolation,” Dr. Holly Hedegaard, lead author of the report, told HuffPost. “It’s not really what’s happening.”

As an example, roughly 40 percent of people listed as dying of a cocaine overdose also had fentanyl in their system.

After fentanyl, heroin, cocaine and methamphetamine were the deadliest drugs in 2016. After declines earlier in the decade, the report said, overdose deaths from both cocaine and methamphetamine were starting to rise again.

The study said illegal drugs such as fentanyl and heroin were the primary causes of unintentional overdoses, while prescription drugs such as oxycodone tended to be used in suicide overdoses.

Drug abuse is terribly destructive and deeply affects addicts, families and society. However, please contact my office if you, a friend or family members are charged with a drug crime. The Fourth Amendment guarantees the right against unlawful search and seizure. Perhaps some well-argued pretrial motions can become part of an aggressive defense against pending drug charges.

Stricter Immigration Enforcement Will Not Reduce Crime

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Interesting article released from The Hill by authors Nazgol Ghandnoosh and Alex Nowrasteh claims that recent research shows that immigrants—regardless of legal status—commit property and violent crimes at lower rates than native-born citizens.

This research, conducted independently by The Sentencing Project and the Cato Institute, used different methods but arrived at the same conclusion: Immigrants are less crime-prone than native-born citizens.

Overall, non-citizens are actually slightly underrepresented in prisons, comprising six percent of the prison population compared to their seven percent of the total U.S. population.

“Effectively addressing violent and property crime requires approaching the problem with both eyes open and without fear of the facts. Law enforcement has scarce resources. Sending them on wild goose chases to round up undocumented immigrants will only deter those individuals and those close to them from reporting crimes and cooperating with investigations.”

Nazgol Ghandnoosh is a research analyst at The Sentencing Project and the co-author of the report Immigration and Public Safety. Alex Nowrasteh is an immigration policy analyst at the Cato Institute and a co-author of the report Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin.

My opinion? This certainly is a highly politicized and hot-button topic. Hopefully, we’ll all arrive at solutions which do not unlawfully violate people’s constitutional rights, regardless of their immigration status.

Please contact me office if you, a friend or family member are charged with a crime; regardless of immigration status. Hiring a knowledgeable, effective and experienced criminal defense attorney is the first step toward getting justice in our courts.

Bellingham’s Most Dangerous Intersections

Informative article by David Rasbach of the Bellingham Herald reports on statistics provided by the Bellingham Police Department Traffic Division showing Bellingham’s most dangerous intersection.

Apparently, at least in terms of the sheer number of accidents, West Bakerview Road and Northwest Drive reigns as the most dangerous intersection in the city.

In a distracted driving study conducted by its traffic division from January 2016 through June 2017, Bellingham Police received 1,350 reports of accidents within city limits, regardless of severity or injury. Of those, 43 accidents occurred at the intersection of Bakerview and Northwest — the highest total of any intersection in town.

Rasbach also reports that three of the top four most dangerous intersections during the 18-month study were in that same corridor: West Bakerview Road and Eliza Avenuehad the third highest accident total with 22 wrecks, while West Bakerview Road and Cordata Parkway was fourth highest with 18.

The only intersection breaking up Bakerview’s stranglehold on the top of Bellingham’s dangerous intersections list — Lakeway Drive and Lincoln Street, which had 25 reported accidents — is very similar, with two busy shopping centers and a school occupying three of the four corners. Nearby Lakeway Drive and King Street tied for sixth-most dangerous with Woburn Street and Barkley Boulevard with 14 reported accidents, each.

Also, the lone roundabout at Cordata Parkway and West Kellogg Road had 16 accidents reported.

Please contact my office if you, a family member or friend are criminally charged for traffic-related incidents. Unfortunately, it’s very easy to be charged with DUI, Reckless Driving, Negligent Driving, Driving While License Suspended, Eluding and/or numerous traffic citations. Bellingham’s dangerous intersections only exacerbate the situation and make it more likely that an unlawful pretextual pullover will happen.

Most of all, drive safe!

Speeding / Reckless Driving

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Interesting article by Robert Mittendorf of the Bellingham Herald discusses the increased dangers of speeding and Reckless Driving in Washington and Whatcom County.

Apparently, the WA State Patrol has aircraft and personnel dedicated to surveying and catching motorists  who drive recklessly. WA State Patrol Traffic Aircraft

According to a report from personal finance website WalletHub, Washington is first among U.S. states where speeding is automatically considered Reckless Driving, seventh in average cost increase of insurance after one speeding ticket, and tenth for minimum jail time for a first Reckless Driving offense.

Mittendorf reports that in Washington, a first-time Reckless Driving is a gross misdemeanor conviction which could result in a year in jail, a $5,000 fine and a suspended license. And according to Mittendorf, even though speeding alone is legally considered reckless driving in Washington, a police officer won’t always add reckless charge to a speeding ticket, said Trooper Heather Axtman of the Washington State Patrol.

Mittendorf also reports that CarInsurance.com says a speeding ticket could result in a 10 percent increase in insurance premiums for three to five years, depending on the company and other factors, including how long the policy holder has been a client.

Please contact my office if you, a friend or family member are charged with driving-related crimes in Skagit and Whatcom county.

Murder Rates Decline

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Wonderful article by German Lopez of Vox discusses how crime and murder rates generally declined in the U.S.’s 30 largest cities in 2017, following two years of sharp increases in the murder rate nationwide.

According to a new report by the Brennan Center for Justice, the overall crime rate fell in the 30 largest cities by 2.1 percent compared to 2016, the violent crime rate by 1 percent, and the murder rate by 3.4 percent.

“Large decreases in Chicago and Houston, as well as small decreases in other cities, contributed to this decline [in the murder rate],” researchers Ames Grawert, James Cullen, and Vienna Thompkins wrote.

One caveat to the findings: Murder rates in some US cities, including Chicago, remain elevated compared to a couple of years ago. “The murder rate in Chicago, which increased significantly in 2015 and 2016, declined by 12.3 percent in 2017, but remains more than 60 percent above 2014 levels,” the report found.

And some cities, including Philadelphia, Indianapolis, and Baltimore, did see increases in the murder rate in 2017. This kind of local variance and fluctuation is typical in US crime statistics: Even as national trends head in one direction, that doesn’t mean all cities and states always follow the same path.

According to Lopez, the report updated Brennan’s preliminary findings from December, broadly reaching the same conclusions.

The full official numbers for the entire US, compiled by the FBI, will come out later this year. Lopez reasons that generally, though, the Brennan Center’s reports have done a good job predicting national trends in the past few years. And the news, overall, is good.

Lopez says the past two years’ increases in the murder rate got a lot of attention, with President Donald Trump and Attorney General Jeff Sessions often bringing them up in speeches to justify “tough on crime” policies. But before they’ve been able to implement such policies and let them take root (especially in local and state jurisdictions, where federal policymakers have very limited power), these rates appear to be coming down.

Lopez says criminologists still aren’t sure why murder in particular appeared to spike so much in 2015 and 2016. Some argued that there might have been a “Ferguson effect,” named after the city in Missouri that exploded into protests over the police shooting of Michael Brown: Due to protests against police brutality over the past few years, police were, the theory goes, scared off from doing proactive policing, emboldening criminals.

Other experts argued a different kind of Ferguson effect: Widely reported incidents of police brutality and racial disparities in police use of force led to elevated distrust in law enforcement, which makes it much harder for police to solve and prevent crimes.

Yet many criminologists cautioned that it’s also possible the two years’ increases were blips in the data, not a new long-term trend. This isn’t unprecedented; in 2005 and 2006, the murder rate in the US increased before continuing its long-term decline — to new record lows — in the ensuing years.

“It now looks possible — though we’ll need more years of data to confirm — that 2015 and 2016 were replays of 2005 and 2006. If that holds, then perhaps the US isn’t in the middle of the “American carnage” that Trump warned about.”

Since the murder rate in particular is generally low, it’s prone to big statistical fluctuations. As one example, Brennan found that Las Vegas saw a 23.5 percent spike in its murder rate last year, but that was due to the mass shooting at a country music concert there that killed 58 people. A single event, albeit a very bad one, led to a dramatic shift in the murder rate.

“That’s why criminologists generally demand several years of data before they declare a significant crime trend,” said Lopez.

Studies Show Immigration Does Not Increase Violent Crimes

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Informative article from John Burnett of NPR discusses four academic studies showing that illegal immigration does not increase the prevalence of violent crime or drug and alcohol problems.

Michael Light, a criminologist at the University of Wisconsin, looked at whether the soaring increase in illegal immigration over the last three decades caused a commensurate jump in violent crimes: murder, rape, robbery and aggravated assault.

“Increased undocumented immigration since 1990 has not increased violent crime over that same time period,” Light said in a phone interview.

Those findings are published in the current edition of the peer-reviewed journal Criminology.

In a separate study, these same researchers previously looked at nonviolent crime. They found that the dramatic influx of undocumented immigrants, similarly, did not drive up rates of drug and alcohol arrests or the number of drug overdoses and DUI deaths.

“We found no evidence that undocumented immigration increases the prevalence of any of those outcomes,” Light said.

third study, by the libertarian Cato Institute, recently looked at criminality among undocumented immigrants just in Texas. The state records the immigration status of arrestees, creating a gold mine for criminologists.

Cato found that in 2015, criminal conviction and arrest rates in Texas for undocumented immigrants were lower than those of native-born Americans for murder, sexual assault and larceny.

Finally, a research paper appearing in the current edition of the U.K. journal Migration Letters shows that youthful undocumented immigrants engage in less crime than do legal immigrants or U.S.-born peers.

According to reporter Burnett, social science has focused on the extent of crime committed by legal immigrants for decades. These new studies are important because they’re among the first to explore the link between crime and illegal immigration.

However, Burnett also indicates that the new research may not move the needle in the immigration debate. Texas Republicans, for instance, have potent opinions about undocumented immigrants. A recent poll showed that 7 out of 10 GOP voters in Texas support the proposition that all undocumented immigrants should be deported immediately regardless of whether they have committed a crime there.

My opinion? Immigration certainly is a hot-button political issue. Hopefully, the research is exposing some critical truths which may shed light on the issues and change the narrative.