Category Archives: Uncategorized

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.

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.

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.

 

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.

 

Unlawful Vehicle Stops

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In United States v. Landeros, the Ninth Circuit Court of Appeals held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

BACKGROUND FACTS

Early in the morning of February 9, 2016, police officer Baker pulled over a car driving 11 miles over the speed limit. The stop occurred on a road near the Pascua Yaqui Indian Reservation. Defendant Alfredo Landeros sat in the front passenger seat next to the driver. Two young women were in the back seat. The driver apologized to Officer Baker for speeding and provided identification.

Officer Baker wrote in his incident report and testified that he smelled alcohol in the car. The two women in the backseat appeared to him to be minors, and therefore subject to the underage drinking laws.  The two women—who were 21 and 19 years old—complied.

Officer Baker did not believe that Landeros was underage, and he was not. Nonetheless, Officer Baker commanded Landeros to provide identification.

Landeros refused to identify himself, and informed Officer Baker that he was not required to do so. Officer Baker then repeated his demand to see Landeros’s ID.” Landeros again refused. As a result, Officer Baker called for back-up, prolonging the stop. Officer Romero then arrived, and he too asked for Landeros’s identification. The two officers also repeatedly commanded Landeros to exit the car because he was not being compliant.

Landeros eventually did leave the car. At least several minutes passed between Officer Baker’s initial request for Landeros’s identification and his exit from the car. As Landeros exited the car, he saw for the first time pocketknives, a machete, and two open beer bottles on the floorboards by the front passenger seat. Under Ariz. Rev. Stat. Ann. § 4-251, Arizona prohibits open containers of alcohol in cars on public highways. Officer Baker then placed Landeros under arrest.

Landeros was arrested both for possessing an open container and for “failure to provide his true full name and refusal to comply with directions of police officers under Ariz. Rev. Stat. Ann. § 13-2412(A). Under that statute, it is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime.”

The officers handcuffed Landeros as soon as he exited the car. Officer Romero asked Landeros if he had any weapons. Landeros confirmed that he had a knife in a pocket. Officer Romero requested consent to search Landeros’s pockets, and Landeros agreed. During that search, Officer Romero found a smoking pipe and six bullets in Landeros’s pockets.

Landeros was federally indicted for possession of ammunition by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2). He moved to suppress the evidence based on the circumstances of the stop, however, the lower federal district court denied the motion. Landeros then entered into a plea agreement that preserved his right to appeal the denials of the two motions. The district court accepted the agreement and sentenced Landeros to 405 days in prison and three years of supervised release. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

The Court reasoned held that because the lower court mistakenly approved the duration of the stop in this case based on United States v. Turvin and wrongfully disregarded Rodriguez v. United States.

“Applying Rodriguez, we shall assume that Officer Baker was permitted to prolong the initially lawful stop to ask the two women for identification, because he had reasonable suspicion they were underage. But the several minutes of additional questioning to ascertain Landeros’s identity was permissible only if it was (1) part of the stop’s “mission” or (2) supported by independent reasonable suspicion.”

The Ninth Circuit also held that any extension of the traffic stop to investigate those matters was an unlawful seizure because there was no evidence that the officer had a reasonable suspicion that the defendant was out past his curfew or drinking underage. As a result, the record does not demonstrate that Officer Baker had a reasonable suspicion that Landeros was out past his curfew or drinking underage. Any extension of the traffic stop to investigate those matters was an unlawful seizure under the Fourth Amendment.

Furthermore, the Ninth Circuit rejected the government’s arguments that the defendant’s refusal to identify himself provided reasonable suspicion of the additional offenses of failure to provide identification and failure to comply with law enforcement orders.

The Court reasoned that here, the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. “At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense,” said the Ninth Circuit. “Accordingly, the police could not lawfully order him to identify himself. His repeated refusal to do so thus did not, as the government claims, constitute a failure to comply with an officer’s lawful order . . .” Consequently, reasoned the Ninth Circuit, there was therefore no justification for the extension of the detention to allow the officers to press Landeros further for his identity.

The Ninth Circuit concluded that there was therefore no justification for the extension of the detention to allow the officers to press the defendant further for his identity. It reasoned that the bullets the defendant was convicted of possessing cannot be introduced at trial because he was ordered from the car as part of the unlawfully extended seizure and subsequently consented to a search of his pockets. Furthermore, because the stop was no longer lawful by the time the officers ordered the defendant to leave the car, the validity (or not) of the police officer’s order to exit the vehicle did not matter.

Good opinion.

“School Search” Held Unconstitutional

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In State v. A.S., the WA Court of Appeals held that drugs found in a 14-year-old child’s backpack in a search conducted by the vice-principal were rightfully suppressed because the search was not reasonable when the child (1) was not a student of the school, (2) the vice principal knew nothing about the child’s history or school record, (3) there was no record of a drug problem at the school, and (4) there was no exigent circumstance to conduct the search as police officers were already on their way to the school.

BACKGROUND FACTS

On April 11, 2016, Meadowdale High School staff received information about an alleged threat involving then 14-year-old A.S., who was not a Meadowdale student. Meadowdale staff looked up A.S.’s picture using the district’s computer system so that they would be able to identify her should she appear on campus.

Later that day, the Vice-Principal of Meadowdale summonsed A.S. to his office, and later, the Principal’s office. A.S. was not very cooperative with being questioned.

At some point while A.S. was in Kniseley’s office, the Vice-Principal noticed an odor that he recognized as marijuana emanating from A.S. The Vice-Principal then searched A.S.’s backpack, which was sitting next to her, and found suspected marijuana and drug paraphernalia. A.S. did not say or do anything to resist the search of her backpack.

A.S. was later charged with possession of drug paraphernalia and possession of a controlled substance. Prior to trial, A.S. moved to suppress the evidence of the suspected marijuana and drug paraphernalia found in her backpack, arguing that the evidence was the fruit of an unlawful search and seizure. Specifically, A.S. argued that the “school search exception” to the warrant requirement did not apply to her because she was not a Meadowdale student when the Vice-Principal searched her backpack and even if the exception did apply, the search was not reasonable.

The trial court denied A.S.’s motion and, following a stipulated bench trial, convicted A.S. of both possession of drug paraphernalia and possession of a controlled substance. A.S. appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under both the Washington Constitution and U.S. Constitution, a government actor must obtain a search warrant supported by probable cause to conduct a search unless an exception applies. Under pre-existing case-law, the exceptions to the warrant requirement are “‘jealously and carefully drawn.”

School Search Exception

One of these exceptions is the “school search exception,” which allows school authorities to conduct a search of a student without probable cause if the search is reasonable under all the circumstances. A search is reasonable if it is: (1) justified at its inception; and (2) reasonably related in scope to the circumstances that justified the interference in the first place.

The Court further reasoned that under ordinary circumstances, a search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. And, a search will be permitted in scope “when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

Finally, Washington courts have established the following factors from State v. Brooks and State v. McKinnon as relevant in determining whether school officials had reasonable grounds for conducting a warrantless search:

“The child’s age, history, and school record, the prevalence and seriousness of the problem in the school to which the search was directed, the exigency to make the search without delay, and the probative value and reliability of the information used as a justification for the search.”

Here,  the search was unconstitutional.

First, A.S. was not a student of the school and the Vice-Principal knew nothing about the child’s history or school record. Specifically, nothing in the record suggests that the Vice-Principal, who guessed that A.S. was middle school aged, knew anything about A.S.’s history or school record. Indeed, the Vice-Principal testified that when he looked up A.S. in the district database, he was only interested in her picture.

Furthermore, there was no evidence that drug use was a drug problem at Meadowdale. Rather, when asked whether Meadowdale had a drug problem, the Vice-Principal responded, “I don’t believe so.” He also testified that he did not deal with drugs on a regular basis as a school administrator and that Meadowdale had only “occasional incidents” on its campus involving students bringing drugs or drug paraphernalia on campus.

Additionally, there was no exigency to conduct the search without delay, given that the police had been called, and A.S.—who had been told that the police were called—gave no indication that she was trying to leave the principal’s office.

And finally, the odor of marijuana alone did not create an exigent circumstance, particularly where the Vice-Principal had no other reason to believe that A.S. used marijuana or that her backpack would contain marijuana. For these same reasons, the search of A.S.’s backpack was not justified at its inception.

My opinion? Good decision. In an educational context, school officials have a substantial interest in maintaining discipline and order on school grounds. However, the search conducted in this case did not promote that interest.

Please contact my office if you, a friend or family member are charged with a crime involving a questionable search by the authorities. Hiring a competent, experienced and knowledgeable defense attorney is the first step toward gaining justice.

Midterm Elections Bring Criminal Justice Reforms

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Excellent article from the Sentencing Project describes how voters in a number of states considered ballot measures during yesterday’s Midterm Election. Criminal justice reform measures ranged from voting rights to sentencing reform.

Colorado – Abolishing Involuntary Servitude as Punishment

Coloradans approved Amendment A with 65% support; the measure removes language from the state Constitution that allows slavery and involuntary servitude to be used as punishment for the conviction of a crime. Abolish Slavery Colorado organized a broad coalition in support of the constitutional change. Supporters included faith groups and civil rights organizations.

Florida – Expanding the Vote

State residents expanded voting rights to as many as  1.4 million Floridians with a felony conviction by approving Amendment 4 with 64% support; support from 60% of voters was required to approve the ballot measure. Justice involved residents now automatically have the right to vote once they complete their prison, probation or parole sentence; persons convicted of homicide and sex offenses are excluded from the measure.

The state’s lifetime felony voting ban was among the most restrictive in the country, along with Iowa, Kentucky and Virginia which maintain lifetime voting bans for all felonies unless the governor takes action. The Florida Rights Restoration Coalition, which organized broad support for the measure, was led by directly impacted residents and garnered more than 800,000 signatures to qualify Amendment 4 for the ballot.

Florida – Retroactivity & Sentencing

Also in Florida, voters approved Amendment 11 with 62% support, a measure that allows sentencing reforms to be retroactive. The amendment repeals language from the state’s ‘Savings Clause’ in the constitution that blocks the legislature from retroactively applying reductions in criminal penalties to those previously sentenced. Statutory law changes are not automatically retroactive; the legislature still has to authorize retroactivity for a particular sentencing reform measure.

Louisiana – Requiring Unanimous Jury Consideration

Louisianans approved Amendment 2, a constitutional change requiring unanimous juries for all felony convictions.  In all other states, except Oregon, a unanimous jury vote is required to convict people for serious crimes; Louisiana was the only state where a person could be convicted of murder without a unanimous jury. Advocacy for Amendment 2 was supported by a broad coalition that advanced criminal justice reforms in recent years. The state’s Democratic and Republican parties endorsed Amendment 2, as well as community groups including Voice of the Experienced, and Americans for Prosperity.

Michigan – Authorized Marijuana Possession

Michiganders approved Proposal 1, a measure that legalizes marijuana for adult recreational use. The change means residents over age 21 will be able to possess up to 2.5 ounces of marijuana on their person and up to 10 ounces in their home. The newly elected governor has signaled support to pardon justice involved residents with prior marijuana convictions and legislation is pending to require judges to expunge misdemeanor marijuana convictions.

Ohio – Rejected Felony Reclassification Measure

Ohio residents rejected Issue 1, a measure that would have reclassified certain drug offenses as misdemeanors and prohibited incarceration for a first and second offense. The measure failed with 65% voting against the sentencing reform. In recent years, voters in California and Oklahoma approved similar ballot initiatives to reclassify certain felonies as misdemeanors with a goal of state prison population reduction.

Washington – Strengthening Police Accountability

Voters passed Initiative 940 and repealed a provision in state law that made it difficult to bring criminal charges against police for deadly force. The Washington law required prosecutors to prove “evil intent” or “malice” when filing charges like manslaughter against police officers. Washingtonians approved the measure with 60% support. I-940 also requires training in de-escalation and mental health for law enforcement officers; requires police to provide first aid to victims of deadly force; and requires independent investigations into the use of deadly force.

My opinion? State initiatives provide an opportunity to civically engage communities on criminal justice policies and build momentum to challenge mass incarceration.

Midterm voters across the nation have spoken. For the most part, their decisions are a step in the right direction. We see an end to involuntary servitude in prison, granting voting rights to some convicted felons, jury unanimity, the legalization of marijuana and the strengthening of police accountability. Good.

Please contact my office of you, a friend or family member face criminal charges. It’s extremely important to hire competent and proactive defense attorney who is knowledgeable of the law.

Online Research By Juror

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In State v. Arndt, the WA Court of Appeals upheld a defendant’s numerous high-level criminal convictions even though one of the jurors performed online research against the court’s instructions.

FACTUAL BACKGROUND

On February 23, 2014, Ms. Arndt and her boyfriend, Mr. Veeder Jr., spent the night at their
friends’ home. Late that night, the house caught fire. Everyone in the home escaped except Mr. Veeder, who died.

After an investigation, the State charged Arndt with murder in the first degree with an
aggravating circumstance of arson in the first degree, felony murder in the first degree with
aggravating circumstances, arson in the first degree, and six counts of assault in the second degree.

The jury found Arndt guilty as charged. The trial court sentenced Arndt to life in prison without the possibility of release or parole.

Months after the verdict, Juror 2 approached a woman whom she did not know was the
sister of Arndt’s trial attorney. Juror 2 said that in Arndt’s trial, she struggled with the term
“premeditation.” She further related that to better understand the term, she looked it up on the internet. The attorney’s sister told her brother what she had learned.

Defense investigator James Harris then met with Juror 2, explained that he worked for Arndt’s trial attorney, and asked to speak with her about her experience as a juror. Juror 2 spoke with Harris and told him that during deliberations she did internet research on the word “premeditation.” Juror 2 provided Harris with additional information, including sites she may have viewed. The State’s investigator also interviewed Juror 2.

Arndt moved for a new trial on grounds of juror misconduct. At a hearing on the motion,
the court heard testimony from Juror 2 and Harris. Juror 2 testified that she had researched the term “premeditation” and had found different sites, but did not remember whether she had viewed any of the specific sites she had showed Harris when he earlier interviewed her. She said that she looked at a couple different definitions, but it was the word “short” that made her understand. Juror 2 also testified that she had not shared her
research with other jurors.

Ultimately, the trial court held Arndt should not get a new trial:

“In substance, the Court finds that the definitions viewed by Juror #2 were indistinguishable to the jury instruction and were consistent with the law. Because the known research results, as presented to the Court, were consistent with the jury instruction on premeditation and the law, the Court is satisfied beyond a reasonable doubt that Juror #2’s research could not have affected the verdict. Therefore, the motion for a new trial is denied.”

Arndt appealed to the WA Court of Appeals.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that Juror 2 committed misconduct. Also, the consideration of novel or extrinsic evidence by a jury is misconduct and can be grounds for a new trial. Furthermore, juror use of extraneous evidence is misconduct and entitles a defendant to a new trial, if the defendant has been prejudiced.

“Once juror misconduct is established, prejudice is presumed,” said the Court of Appeals. “The court must grant a new trial unless it is satisfied beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict.”

The Court of Appeals also reviewed the trial court’s instructions to the jury on the definition of “Premeditation.” It stated the following:

“Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.”

Finally, the Court of Appeals reasoned that although the exact websites Juror 2 visited and the precise definitions she viewed are unknown, the part of those definitions that had an impression on her and affected her verdict were the word “short” and phrase “however short.”

“As the trial court ruled, these definitions were indistinguishable to the jury instruction and were consistent with the law,” said the Court of Appeals. “This ruling is sufficient to satisfy beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict and to overcome the presumption of prejudice. The court did not abuse its discretion.”

With that the Court of Appeals concluded the trial court did not abuse its discretion by concluding that Juror 2’s research did not contribute to the verdict. Accordingly, the Court of Appeals affirmed Arndt’s conviction.

My opinion? The Court’s decision is frustrating. It placed too much weight on whether the juror’s misconduct prejudiced the defendant. Instead, the Court should have focused on the fact that juror misconduct happened in the first place.

If you stole a candy bar from a grocery store, would your shoplifting affect the store’s bottom line? Probably not. However, the simple fact that you stole a candy bar is, in fact, a crime which demands an effective and just remedy. Otherwise, a crime which goes unpunished is essentially not a crime, correct?

Here, Juror 2 blatantly disregarded the court’s instructions to not perform online research. Did Juror 2’s research affect her decision on the verdict? Did Juror 2 discuss her research with other jurors behind closed doors when they deliberated the case? Therein lies the threat to justice; not only to this defendant, but criminal defendants everywhere. Online research should not be tolerated, even if it can be willed away away as having no impact on the outcome. Bad decision.

Please contact my office if you, a friend or family member face criminal charges.

WA State Abolishes Death Penalty

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But the court’s opinion eliminated it entirely, converted the sentences for the state’s eight death row inmates to life in prison without release, and supported a trend away from capital punishment in the U.S.

“The death penalty is becoming increasingly geographically isolated,” said Robert Dunham, executive director of the Washington, D.C.-based Death Penalty Information Center. “It’s still on the books in 30 states, but it’s not being used in 30 states. It’s becoming a creature of the Deep South and the Southwest.”

Texas continues to execute more prisoners than any other state — 108 since 2010. Florida has executed 28, Georgia 26 and Oklahoma 21 in that time frame. But nationally, death sentences are down 85 percent since the 1990s, Dunham said.

In the past 15 years, seven states — Connecticut, Delaware, Illinois, Maryland, New Jersey, New Mexico and New York — have abandoned capital punishment through court order or legislative act, and three — Colorado, Oregon and Pennsylvania — have adopted moratoriums.

The concerns cited in those states have ranged from procedural matters, such as the information provided to sentencing jurors in New York, to worries about executing an innocent person or racial and other disparities in who is sentenced to death, as was the case in Washington.

“The death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant,” Chief Justice Mary Fairhurst wrote in the lead opinion.

“Our capital punishment law lacks ‘fundamental fairness.”  ~Chief Justice Mary Fairhurst 

According to La Corte and Johnson, defense lawyers had long challenged the death penalty on those grounds. This time, death penalty critics were armed with more data about how capital punishment works, including a statistical analysis by University of Washington sociologists. Their report showed that although prosecutors were not more likely to seek the execution of black defendants, juries were about four times more likely to sentence black defendants to death.

“Now the information is plainly before us,” Fairhurst wrote. “To the extent that race distinguishes the cases, it is clearly impermissible and unconstitutional.”

Sexual Assault Kits Remain Untested

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The Attorney General’s Office has completed its inventory of Washington state’s unsubmitted sexual assault kits, finding 6,460 kits that have not yet been submitted for lab testing by local law enforcement agencies.

A sexual assault kit is a collection of evidence gathered from a survivor by a medical professional, usually a specially trained sexual assault nurse examiner. A crime lab then tests the evidence for DNA that will help law enforcement find a perpetrator.

This month, Attorney General Bob Ferguson will request the remainder of a federal grant that funds sexual assault kit testing. The Attorney General’s Office (AGO) is currently reviewing the inventory data and working with the Crime Lab to develop a plan for testing the kits, which potentially provide DNA evidence for sexual assault investigations.

The AGO obtained inventory information from 208 law enforcement agencies across Washington state. These 6,460 kits were collected and booked into evidence by local law enforcement, but were not submitted to a crime lab for a DNA analysis. Consequently, they remain in evidence storage facilities around the state.

Many of these unsubmitted kits have been in an evidence storage facility for years. The oldest untested kit reported by local law enforcement to the AGO dates back to 1982.

“Sexual assault survivors deserve justice,” said Ferguson. “Each sexual assault kit tells a story from a survivor that must be heard.”

The inventory is part of the AGO’s Sexual Assault Kit Initiative project. In October 2017, the AGO won a grant for $3 million from the U.S. Department of Justice to assist law enforcement with testing and investigating untested sexual assault kits. The grant process, part of the Bureau of Justice Assistance Sexual Assault Kit Initiative, was highly competitive.

The grant funds a team of investigators within the AGO dedicated to the project. Attorney General Ferguson plans to dedicate $1.5 million to pay for the testing of kits – the maximum allowable under the grant.

So far, the AGO has received 25 percent of the $3 million grant in order to inventory the kits. Now that the inventory of unsubmitted kits is complete, Attorney General Ferguson can request the remainder of the funds from Bureau of Justice Assistance.

There are two types of sexual assault kit backlogs in Washington state and across the country. The first is the “unsubmitted” sexual assault kit backlog, which consists of kits that sit in a law enforcement evidence storage facility because a DNA analysis was never requested. With today’s announcement, Attorney General Ferguson took the first key step in eliminating Washington’s unsubmitted kit backlog.

The second type of backlog occurs in crime lab facilities, and consists of “backlogged” sexual assault kits that have been submitted, but have not yet been tested.

The State of Washington has made progress on processing its backlog of sexual assault kits over the past several years, but additional work remains. In 2015, led by Representative Tina Orwall (D-Burien), the Legislature gave funds to the Crime Lab to reduce the backlog.

According to the Washington State Patrol, more than 3,300 backlogged kits have been submitted to the Crime Lab using this legislative funding. Of those kits, about 1,700 have been tested and about 1,100 are currently in the testing process. These totals do not include the 6,460 unsubmitted kits Ferguson inventoried that are held by local law enforcement.

In Washington state, the State Patrol Crime Lab oversees the testing of all of the state’s DNA evidence. The Crime Lab is outsourcing the sexual assault kits to a private lab to complete the DNA testing. The Crime Lab must conduct a peer review of all evidence tested by outside labs and is the only agency permitted to upload DNA profiles into the national forensic DNA database, known as CODIS.

Once the kits are tested, local law enforcement can use DNA to reopen cold cases. Testing these kits will identify serial rapists, link cases across the country, provide critical links that could solve homicide cases and provide answers to victims and their families.

My opinion? I’m impressed our legislature is appropriating more funding toward testing rape kits. Forensic evidence such as rape kits benefit everyone, including the defendant. The evidence gives information beyond “he said / she said” allegations. Rape kits analyze DNA evidence, reveal the location and extent of injuries/trauma sustained from alleged sexual assaults and may contain notes from interviews with sexual assault nurse practitioners. All of this evidence helps the investigatory process.