According to the Guardian, America’s public defenders are overworked and underfunded. The situation has reached crisis levels in some states.

The Downward Spiral of Public Defense Since Gideon v. Wainright.

In 1963, the landmark Gideon v Wainwright  U.S. supreme court ruling gave indigent criminal defendants who cannot afford to pay for a lawyer, access to legal counsel.

Unfortunately, over the last 50 years, the legal system has failed to live up to Gideon. Criminal cases have piled up. The Guardian article stated how 53 years on, the rate of incarceration across the country has more than quadrupled compared to 1963 and the vast majority of defendants are indigent. The system is at crisis point. The cornerstone principles of the justice system have been eroded to the breaking point.

In recent years the US has begun to reckon with its role as the world’s biggest jailer. It manifests unequal justice system that disproportionately punishes poor people of color. In diagnosing the causes of this problem much of the focus has centered on sentencing reform. But in a country where 95% of criminal cases are settled by plea deal, little attention has been given to the critical state of indigent defense. Around the US, defenders routinely report an increase in overburdening and underfunding, caused by a variety of structural, political and economic drivers.

The Problem is Nationwide.

How bad is the picture around the country? Frustratingly, the scale of the problem remains unknown as dozens of states and jurisdictions produce no reliable data at all on the condition of their public defense systems.

As the Innocence Project reports, Public Defenders’ caseloads in some US states include about 80 to 100 cases per week. That’s about 400 cases per month or more than 4500 cases per year. That’s an impossible schedule to fulfill, no matter how dedicated legal workers are.

The last nationwide survey of public defender offices was carried out almost 10 years ago by the Department of Justice’s bureau of justice statistics (BJS). The findings were stark: 73% of county-operated defender systems, utilized in 27 states, were functioning above the maximum recommended caseload level.

In the 22 state centralized defender programs, 15 ran on caseload levels that exceeded the recommended case limit. In a world of meagre measurement and inadequate oversight, many argue the findings were a significant underestimate of the nationwide strain on the system.

The underfunding of public defenders threatens very grave consequences for the justice system in Texas and elsewhere. We hear about people who have been charged with minor crimes remaining in jail because they are poor. Harris County Jail in Texas has one of the worst records in this regard. Often public defenders are too busy to give these cases the time they merit.

My opinion? Obviously, cash-poor defendants are falling through the cracks. They are languishing in jails when they should have been released. Or their court-appointed attorney is not giving their cases the time and attention they deserve.

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

Excellent article in the Los Angeles Times by reporters Emily Baumgaertner and Russ Mitchell discussed a tally that shocked experts. In short, there were 38,680 deaths on U.S. roadways last year, the most since 2007. The increase in accidents happened even though pandemic precautions had dramatically reduced driving.

Experts say this driving behavior is likely a reflection of widespread feelings of isolation, loneliness and depression. The rise in motor vehicle deaths also lines up with other pandemic-era trends. Alcohol sales have soared, drug overdoses have set new records, and homicides have seen their biggest increase on record.

According to the article, before the pandemic, safety on U.S. roadways had been improving for decades. Even as the number of people on the roads increased and many states raised their speed limits, annual fatalities fell from around 55,000 in 1970 to 36,096 in 2019. Then came the 7.2% rise in 2020, followed by an 18% jump in the first six months of this year, based on preliminary figures from the federal government.

According to the article, for every 100 million miles driven last year, 1.37 people died. This is an increase of 23% rise from 2019. There’s also an increase in deadly accidents involving speeding, illegal substances or a failure to wear a seat belt.

Jonathan Adkins, executive director of the Governors Highway Safety Assn., chimed in on the subject. He suggested that people’s disregard for themselves and others on the road is part of a national decline in civility that accelerated during the pandemic.

“Anecdotally, we hear from governors’ offices around the country that it’s a symptom and a sign of the overall lack of consideration we’re showing for other citizens, whether it be wearing masks, or not getting vaccinated, or how we drive . . . It’s very aggressive. It’s very selfish.” ~Jonathan Adkins, Executive director of the Governors Highway Safety Assn.

In California, which saw a 5% increase in fatalities last year, Highway Patrol officers issued nearly 28,500 tickets for speeds over 100 mph, almost double the 2019 total. They arrested 232 people for reckless driving — a 150% rise — and are on pace to exceed that this year.

Research based on crash investigations has shown that even a slight speed increase — say, from 50 mph to 56 mph — is enough to increase a driver’s risk of death. Since the start of the pandemic, a larger share of accident victims — including those who survived — have been ejected from their vehicles, typically because they were not wearing seat belts.

The increase in ejections was seen just as lockdowns began last year. Men have accounted for a disproportionate share. Making the roads even more dangerous is rising drug and alcohol use. In one survey, over 7% of adults said they were more likely to drive while impaired than they were before the pandemic.

Federal researchers who looked at accidents in which drivers were killed or seriously injured found that the proportion who tested positive for opioids nearly doubled after the pandemic began. Marijuana use also rose considerably.

Finally, more drivers are distracted. Researchers used GPS and other data to determine that drivers used their phones more frequently after the pandemic began, and that the problem only worsened over time.

Please contact my office if you, a friend or family member are charged with a driving crime. Reckless Driving, Reckless Endangerment, Eluding and DUI are typical examples of crimes involving motor vehicles. Hiring an effective and competent defense attorney is the first and best step toward justice.

In State v. Harris, the WA Court of Appeals held that expert testimony in DV cases is not required to accompany evidence of a prior assault. However, a court may allow expert testimony on general characteristics or conduct typically exhibited by survivors of domestic violence.

BACKGROUND FACTS

The defendant Mr. Harris and the victim Ms. Bohannan have had a long romantic relationship. Bohannan has two young children, the youngest of which is the biological child of Harris. Due to prior domestic violence, there was a no-contact order prohibiting Harris from contacting Bohannan directly or indirectly, or coming within 300 feet of her residence. Bohannan was against the existence of the no-contact order.

On June 28, 2020, Harris went to Bohannan’s Everett apartment. Bohannan’s neighbor called police after hearing thumping and screams for help. Police arrived shortly afterward. Bohannan eventually allowed the officers inside, where they noticed what appeared to be fingerprints on her neck. A later body check revealed red marks on Bohannan’s arms and body. Bohannan said that Harris assaulted her, but did not want the statement in writing or photos of her injuries.

Shortly thereafter, Harris was arrested nearby the residence. While incarcerated, Harris had repeated telephone and video-call contact with Bohannan. The jail system that monitors calls captured the communications.

Harris was charged with three counts of Violation of a No-Contact Order. Prior to trial, the State introduced Harris’s prior conviction for assaulting Bohannan under Evidence Rule ER 404(b). Admitting the evidence was done to assist the jury in evaluating her credibility. Harris moved to exclude this prior conviction. The court denied Harris’ motions to exclude.

The jury found Harris guilty as charged. He appealed on arguments that the trial court erred by admitting evidence of a prior assault.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began with an in-depth discussion of ER 404(b). It said this evidence rule prohibits a court from “admitting evidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith.” Additionally, evidence of a defendant’s prior assault of a victim is generally inadmissible if the defendant assaults the victim on a later occasion.

However, the Court of Appeals also said that evidence may become admissible for reasons such as assisting the jury in judging the credibility of a recanting victim. Before admitting ER 404(b) evidence, a trial court must (1) identify the purpose for which the evidence is sought to be introduced, (2) determine whether the evidence is relevant to prove an element of the crime charged, and (3) weigh the probative value against its prejudicial effect.

Ultimately, the Court of Appeals reasoned the trial court did not abuse its discretion in admitting evidence of Harris’s prior assault of Bohannan.

“The trial court determined that the State could prove the assault by a preponderance of evidence,” said the Court of Appeals. “The court also identified the purpose of introducing the prior assault—to challenge Bohannan’s credibility. Finally, the court properly balanced the probative versus prejudicial value of introducing the prior assault, and delivered a limiting instruction to the jury. These actions do not rise to an abuse of discretion.”

Next, the Court of Appeals reasoned that expert witnesses may testify on general characteristics or conduct typically exhibited by survivors of domestic violence. However, such testimony must not state that a specific victim witness exhibits the responses or characteristics of a crime victim or state the expert’s opinion of the victim’s credibility.

“Based on our review of Washington precedent, we decline to adopt a requirement that expert testimony must accompany evidence of prior assault to assist assessment of witness credibility. We do not, however, expressly prohibit such expert witness testimony. Rather, it is within the purview of the trial court to assess the proposed introduction of expert testimony and its adherence to requisite evidentiary rules.” ~WA Court of Appeals.

With that, the WA Court of Appeals upheld Harris’s conviction.

My opinion? This case captures how the State may use expert testimony from a witness trained in DV-related issues. If qualified, the expert provides information on how DV affects a victim’s perceptions and actions. Testimony may be introduced at any stage in the process, including grand jury hearings, plea negotiations, trials, sentencing, and clemency or parole hearings.

The most widely accepted use of DV experts is in traditional self-defense cases when a victim of DV victim injures or kills the abuser. DV experts are also used to explain why a victim commits a crime under orders from an abuser. They can discuss why a DV victim fails to report an abuser’s crimes, or does not prevent or intervene in the abuse of their children. Experts are often needed to explain why victims do not report, change their stories, recant testimony, or assist in the prosecution of perpetrators.

In my trial experience, expert witnesses may testify on general characteristics or conduct typically exhibited by survivors of domestic violence. However, such testimony must not state that a specific victim witness exhibits the responses or characteristics of a crime victim or state the expert’s opinion of the victim’s credibility.

Please read Defending Against DV Charges and contact my office if you, a friend or family member face DV charges or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.