Category Archives: Uncategorized

LGBTQ Training for Police

Bellingham Defense Attorney, law enforcement, LGBTQ, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

No Cops at Pride”: How the Criminal Justice System Harms LGBTQ People | Urban Institute

Great article in NBC News by reporter Finbarr Toesland says police departments across the U.S. are mandating LGBTQ training. Some departments are doing so voluntarily, while others are being required to do so following lawsuits.

According to Toesland, there’s growing reports of police allegedly using excessive force against lesbian, gay, bisexual, transgender and queer people. There have also been numerous incidents in which LGBTQ individuals said members of law enforcement made disparaging remarks about their sexual orientation or gender identity, according to news reports, lawsuits and academic studies.

These incidents — along with the historically fraught relationship between law enforcement and the LGBTQ community — have led a growing number of police departments across the country to introduce LGBTQ awareness and cultural competency training for their officers. With trainings found from Washington, D.C., to Palo Alto, California, there’s no one-size-fits-all approach; rather, departments are crafting programs that take into consideration their specific communities.

Toesland explains that throughout much of modern U.S. history, police officers were bound to enforce explicitly anti-gay laws. They ranged from local measures outlawing men from “impersonating a female” to the widespread criminalization of same-sex sexual activity. In fact, it wasn’t until the landmark 2003 Supreme Court case Lawrence v. Texas that gay sex was decriminalized throughout the country.

THE REPORTS, SURVEYS & STUDIES

  • A 2015 report highlights the numerous surveys, court cases and academic studies that document the alleged discrimination and harassment of LGBTQ people by law enforcement.
  • The National Center for Transgender Equality’s 2015 U.S. Transgender Survey found 58 percent of trans respondents who said they interacted with police in the previous year alleged they had been harassed by law enforcement. The survey also found 57 percent of respondents said they were uncomfortable contacting police for help.
  • A study published in June in the American Journal of Preventive Medicine found 43 percent of Black sexual minority men experienced police discrimination in the past year. This unequal treatment had a range of negative effects on this community, including high levels of depression and anxiety.
  • Another study published by the Williams Institute in May that found lesbian, gay, bisexual and queer people are six times more likely than the general public to be stopped by police (data about transgender individuals were not available in the datasets analyzed).

THE NEED FOR TRAINING

Toesland explains that a number of law enforcement departments have proactively decided to add LGBTQ programs to their arsenal of training courses. In fact, the largest local police departments in the U.S. —  New York City, Chicago, Los Angeles, Philadelphia, Houston and Washington, D.C. — all offer some form of LGBTQ training.

The Metropolitan Police Department in Washington — the sixth largest local police department in the U.S. — has been offering LGBTQ training since 2000, though it expanded its curriculum in 2015. Sgt. Nicole Brown, who has been a supervisor for the department’s LGBT liaison unit for the past three years, said her department was the first in the nation to offer such training.

California became the first state to introduce mandatory training on sexual orientation and gender identity for incoming police officers, after former California Gov. Jerry Brown signed Assembly Bill 2504 into law in late 2018. The bill requires new recruits to undertake training in five unique areas, including understanding the differences between sexual orientation and gender identity and how these aspects of identity intersect with race, culture and religion, as well as learning appropriate terminology around sexual orientation and gender identity.

My opinion? The increase in LGBTQ-specific police training is a positive step forward. Not only can training help the LGBTQ community, but it can help police departments do their job better, especially those that are really invested in community policing. These trainings can really help get to a place where LGBTQ communities feel comfortable working with law enforcement, and actually enable police to do their jobs better and more safely.

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

Offender Score Post-Blake

Bellingham Defense Attorney, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Comment | Where is the Literature of Dissent?

In State v. Markovich, the WA Court of Appeals held that an out-of-state conviction for drug possession may not be included in the calculation of an offender score. There is no longer a comparable Washington offense after State v. Blake declared Washington’s strict liability simple possession statute to be unconstitutional.

FACTUAL BACKGROUND

In the early morning hours of July 13, 2017, police officers broke down the door of an apartment in Everett while executing a search warrant. The defendant Mr. Markovich was sitting on a couch in the front room of the apartment. Officers noticed digital scales, loaded and unloaded syringes, baggies, burnt aluminum foil, and a small stack of cash near the couch. Markovich was handcuffed and led outside the apartment. He had a small “baggie” containing a white substance in his pocket. The substance was later determined to be less than a gram of methamphetamine.

In the bedroom, officers also discovered a black fabric bag containing a larger quality of methamphetamine, heroin, and related drug paraphernalia. Markovich was charged with Possession of Methamphetamine and Heroin With Intent to Deliver or Manufacture.

At trial, Markovich was convicted as charged. The court imposed a high-end standard range sentence of 108 months in prison followed by 12 months of community custody. Markovich appealed on numerous grounds.

While this appeal was pending, the Washington Supreme Court decided State v. Blake, holding that Washington’s drug possession statute, RCW 69.50.4013(1), violated the due process clauses of the state and federal constitutions and was void. 197 Wn.2d at 186. Markovich filed a motion for resentencing in superior court, arguing that he was entitled to resentencing in light of Blake because his two prior out-of-state convictions for drug possession were included in the calculation of his offender score.

COURT’S ANALYSIS & CONCLUSIONS

On this issue, the Court of Appeals reasoned that a prior conviction based on a constitutionally invalid statute may not be considered when calculating an offender score.

“A sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice,” said the Court, quoting In re Pers. Restraint of Goodwin. The Court emphasized that the remedy for such a defect is resentencing under the correct offender score:

“In Blake, the Supreme Court declared Washington’s strict liability drug possession statute unconstitutional and void. Because penalties imposed under the invalid statute are void, defendants who were sentenced based on an offender score that included prior convictions under this unconstitutional statute are entitled to resentencing.” ~WA Court of Appeals.

Consequently, although the Court agreed with Markovich on this issue and re-sentenced his accordingly, it nevertheless denied his remaining claims on appeal.

My opinion? Good decision, overall. Our Court’s are dutifully re-calculating offender scores in the wake of the Blake decision. However, this opinion dealt only with convictions from other states.  A specific statute, RCW 9.94A.525(3) treats federal convictions for crimes for which there is no clearly comparable offense under Washington law as a class C felony equivalent in the offender score.  Federal simple drug possession felonies should, therefore, continue to be included in the offender score.

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.

COVID-19 Outbreak At Jail

Bellingham Defense Attorney, Coronavirus, Jail, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Justicia fights for COVID-19 protections for people who are incarcerated - Furman News

Reporter David Rasbach from the Bellingham Herald reports the Whatcom County Jail in downtown Bellingham has seen a COVID-19 outbreak the past few days. The present outbreak has spread to 10 corrections deputies and one person housed at the jail.

Rasbach reports that since late in 2020, all corrections deputies at the jail have been tested for COVID weekly. One of the deputies tested positive on Saturday, Aug. 14.

“Over the following three days, additional corrections deputies tested positive during their weekly screening,” said Whatcom County Sheriff’s Office spokesperson Deb Slater. “We began working with the Whatcom County Health Department to track down the source of the infection.

Apparently, several corrections deputies contracted COVID while booking an individual who was uncooperative. This individual refused to answer any health-related questions or take a rapid COVID-19 test and demonstrated uncontrolled behavior during the booking process.

The sheriff’s office’s Corrections Bureau has since increased its rapid testing of deputies to daily, and additional personal protective equipment protocols have been put in place, according to Slater.

In January, the Work Center had an outbreak that affected 37 people, leading to some of the testing protocols now in place at the jail.

My opinion? A jail sentence should not become a death sentence. And yet our jails and prisons are filled with people with preexisting medical conditions that put them a heightened risk for complications from COVID-19. Our jails and prisons house large numbers of people with chronic diseases and complex medical needs who are more vulnerable to COVID-19. At the beginning of the pandemic, jails cut their populations by as much as 30%, helping to protect many of these people. But states and counties abandoned their efforts to keep jail populations low as the pandemic wore on.

Please review my Legal Guide titled Making Bail and contact my office if you, a friend or family member are jailed and charged with a crime during this COVID-19 Pandemic. Hiring an effective and competent defense attorney is the best step toward justice. Nowadays, it may save your life.

Trial Security

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Courtroom Security: The Hidden Side of The Criminal Trial - Lee Lofland

In State v. Bejar, the WA Court of Appeals held it was not prejudicial to the defendant’s case for jurors to go through enhanced courtroom security screening on a jury trial involving a gang murder.

BACKGROUND FACTS

Mr. Bejar, Jr. was charged with murder in the first degree with a firearm enhancement and unlawful possession of a firearm in the first degree. The shooting involved a gang war in South King County that was instigated by gang members disrespecting each other over social media. Mr. Bejar was the alleged shooter, and a member of the South Side Locos gang. The victim was a member of the the United Lokotes gang.

At trial, the judge ordered secondary screening strictly for any courtroom observers.

“There’s been allegations of witnesses being assaulted as a result of this ongoing gang war, and in particular Facebook posts that I read provided here refer to different people as being snitches,” said the trial judge. Consequently, he issued the following secondary screening rules:

  1. Persons entering the courtroom may be subjected to secondary screening, including use of a magnetometer, handheld metal detector, and pat down searches. Persons who fail to comply with screening requirements will not be permitted access to the courtroom.
  2. Except as specifically authorized in this document or by separate order of the Court, no cell phones, cameras, or other electronic devices capable of audio or video recording, or component parts of such devices, will be permitted in the courtroom. Persons entering the courtroom may be required to leave such devices with security personnel . . .

The jury convicted Bejar of all crimes as charged. He appealed on arguments that requiring jurors to go through secondary screening was inherently prejudicial.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that the presumption of innocence is a basic component of a fair trial under our system of justice. In order to preserve a defendant’s presumption of innocence before a jury, the defendant is entitled to the physical indicia. This  includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a free and innocent individual.

“Measures which single out a defendant as a particularly dangerous or guilty person threaten his constitutional right to a fair trial,” said the Court of Appeals. “Such measures threaten a defendant’s right to a fair trial because they erode his presumption of innocence; these types of courtroom practices are inherently prejudicial.”

That said, the Court also reasoned that the average juror takes for granted security screenings in courthouses and other similar government buildings. The court emphasized that jurors are used to passing through security screening, including metal detectors and pat down searches, when entering government buildings or government-controlled spaces within buildings, including airports and other transportation hubs, federal buildings, and courts.

“The fact that there was a secondary screening outside the courtroom in the hallway for cell phones did not suggest particular official concern or alarm; it was not an invasive search or conducted by guards with unusual weaponry or armed presence.” ~WA Court of Appeals

Furthermore, reasoned the Court, the secondary screening allowed for a wide range of inferences, including that such screening was designed to guard against disruptions emanating from outside the courtroom.

“The jurors only had to pass through the secondary screening on the first day of trial,” said the Court.  “On all subsequent days, jurors were allowed to bypass the secondary screening with their juror badges. These factors all served to minimize any potential prejudice to the defendants.”

With that, the Court of Appeals ruled that the secondary screening of the jurors on the first day of trial was not inherently prejudicial.

“These secondary security measures did not single out a defendant as a particularly dangerous or guilty person or threaten his constitutional right to a fair trial. The trial court did not abuse its discretion in adopting such measures.” ~WA Court of Appeals

With that, the Court of Appeals affirmed Bejas’ conviction.

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.

Cell Site Location Info

Bellingham Defense Attorney, Burglary, Cell Phone, Mount Vernon Criminal Defense Attorney, Possession of Stolen Property, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,
Find Your Nearest Cell Tower in Five Minutes or Less: 2021 Edition
In State v. Denham, the WA Supreme Court held there was a sufficient nexus between the defendant’s seized phone records and the suspected criminal activity to support the issuance of a search warrant.
BACKGROUND FACTS
A valuable diamond was stolen from a jewelry store. Within days, the Defendant Mr.  Denham sold that diamond. Police suspected Denham committed the burglary and got a warrant for his cell phone records. Cell site location information included in those phone records placed Denham’s phone near the jewelry store around the time of the burglary.
Mr. Denham was charged and ultimately convicted with second degree burglary and first degree trafficking in stolen property. At Denham’s bench trial, The trial judge cited the
fact that Denham had made phone calls that were routed through the cell tower in
the parking lot of the jewelry store around the time of the burglary. Ultimately, the trial judge found Denham guilty as charged.
Mr Denham appealed his case to the WA Court of Appeals. He challenged the admissibility of the search warrant and the evidence it produced. His argument was that the warrant based on generalizations and did not establish that evidence of wrongdoing would likely be found in his phone records. The WA Court of Appeals agreed with Mr. Denham. The State, however, filed its own appeal. And Mr. Denham’s was heard in the WA Supreme Court.
COURT’S ANALYSIS & CONCLUSIONS
The WA Supreme Court began by discussing the admissibility of cell phone records.
“Our constitutions protect individual privacy against state intrusion,” said Justice Gonzalez, who authored the opinion.  He said that under the U.S. Constitution and WA State Constitution, police must have either the authority of a warrant or a well-established exception to the warrant requirement to lawfully intrude into an individual’s private affairs.
“This constitutional protection extends to cell phone location information held by cell phone companies,” said Justice Gonzalez.  He acknowledged that time-stamped data contained in cell phones provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.
Next, Justice Gonzalez described how a search warrant should be issued only if it shows probable cause that the defendant is involved in criminal activity and that evidence of the criminal activity will be found in the place to be searched. “There must be a nexus between criminal activity and the item to be seized and between that item and the place to be searched,” he said. “The warrant must also describe with particularity the place to be searched and the things to be seized.”
With that, Justice Gonzalez reasoned that the search warrant affidavits were proper:
“These affidavits present reasonable grounds to believe that the phones associated with the phone numbers belonged to Denham based on Denham’s own use of the numbers with his probation officers and with various businesses, that Denham had the phones around the time of the burglary because of specific facts suggesting he had the phones days before and after the date in question, that Denham burgled the store, and that Denham trafficked distinctive pieces stolen from the store. They also allege that Denham had both phones at the time of the burglary and used one to arrange the sale of the diamond that was the basis of the trafficking charge.
Taken together, this is sufficient to raise a reasonable inference that evidence of burglary would be found in the cell site location information . . . The fact that there are some generalizations in the inferential chain does not defeat the reasonableness of the inference.” ~Justice Gonzalez, WA Supreme Court
Justice Gonzalez concluded by holding that the search warrant contained sufficient detail to conclude that evidence of a crime would more likely than not be found in the cell site location information in telephone company records of Denham’s cell phones.
Accordingly, the WA Supreme Court reversed the Court of Appeals and affirmed Denham’s convictions.

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.

Right to Present A Defense

Bellingham Defense Attorney, DNA, ER 401, ER 402, felony, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Criminal Defendant Constitutional Rights- New Mexico Criminal Law

In State v. Cox, the WA Court of Appeals held that the trial court mistakenly excluded evidence pursuant to the Rape Shield Statute  that the victim flirted with the defendant and sat on his lap at the party where the unlawful sexual contact occurred.

BACKGROUND FACTS

The incident occurred in the early morning hours at the complaining witness’s house after her birthday party. The complaining witness testified that after she fell asleep in her bed, she was awakened by the defendant digitally raping her. The State presented evidence that Mr. Cox’s DNA was found on the complaining witness’s undergarments.

Mr. Cox denied the accusation entirely and testified that the complaining witness was intoxicated and that he had rejected her advances. Nevertheless, he was charged and convicted of Rape in the Second Degree.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals reasoned that the Rape Shield Statute does not apply to behavior that is contemporaneous with the alleged rape. Here, the victim flirted with the defendant and sat on his lap at the party. That evidence should not have been suppressed. In addition, the statute does not apply to evidence, which was offered to explain how the victim’s intoxication affected her behavior and memory of that night and that there may have been an innocent explanation for the DNA transfer.

“The excluded evidence in this case was not past behavior; it was contemporaneous with the alleged rape. Nor was it being introduced to show consent. And while it was being introduced to discredit the victim’s credibility, the focus was on her level of intoxication, not on allegations of promiscuity. Thus, application of the Rape Shield Statute in these circumstances was untenable and an abuse of discretion.” ~ WA Court of Appeals.

The Court also decided the trial court wrongfully suppressed evidence of the alleged victim’s behavior with the Defendant at the party:

“Evidence that the victim was highly intoxicated, acting in a manner that was uncharacteristically flirtatious, and sitting on Mr. Cox’s lap in a dress, was ‘highly relevant’ to his theory of the defense. The prejudicial value of this evidence, if any, was low.” ~ WA Court of Appeals.

Also, the Court of Appeals reasoned that the trial court erred by sustaining an objection to a hypothetical question that defense posed to the State’s DNA expert during cross-examination. Here, Mr. Cox tried to present expert testimony evidence that it was possible for his DNA to be transferred to the complaining witness’s underwear through innocent, non-sexual contact such as sitting on his lap. The Court of Appeals disagreed, and held that an expert witness may be cross-examined with hypotheticals yet unsupported by the evidence that go to the opponent’s theory of the case.

“The lap-sitting incident provides an explanation as to how Mr. Cox’s DNA might have been transferred to the complaining witness. The witness’s inability to recall this incident calls into question her ability to remember other events from that night. And her flirtatious behavior with Mr. Cox supports his version of events.” ~ WA Court of Appeals.

Next, the Court of Appeals reasoned the trial court’s exclusion of the Defendant’s reputation evidence on the particular character trait of sexual morality was wrong. “Contrary to the trial court’s position, “this type” of evidence is explicitly
admissible under ER 404(a)(1),” said the Court.

With that, the Court of Appeals concluded that the trial court’s errors mentioned above were not harmless. It reversed Mr. Cox’s conviction and remanded for a new trial.

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

COVID-19 Increased Crime

Bellingham Defense Attorney, Coronavirus, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Uncategorized, Whatcom County Criminal Defense, , , , ,

Crime and the Coronavirus: What You Need to Know | SafeWise

Informative article by reporters Emma Tucker and Peter Nickeas of CNN finds that the U.S. saw a significant crime rise across major cities in 2020 during the Coronavirus Pandemic. Worse, it doesn’t appear to be letting up.

Major American cities saw a 33% increase in homicides last year as a pandemic swept across the country, millions of people joined protests against racial injustice and police brutality, and the economy collapsed under the weight of the pandemic — a crime surge that has continued into the first quarter of this year.

Sixty-three of the 66 largest police jurisdictions saw increases in at least one category of violent crimes in 2020, which include homicide, rape, robbery, and aggravated assault, according to a report produced by the Major Cities Chiefs Association. Baltimore City, Baltimore County and Raleigh, North Carolina, did not report increases in any of the violent crime categories.
It’s nearly impossible to attribute any year-to-year change in violent crime statistics to any single factor, and homicides and shootings are an intensely local phenomenon that can spike for dozens of reasons. But the increase in homicide rates across the country is both historic and far-reaching, as were the pandemic and social movements that touched every part of society last year.
A PERFECT STORM OF FACTORS
Experts point to a “perfect storm” of factors — economic collapse, social anxiety because of a pandemic, de-policing in major cities after protests that called for abolition of police departments, shifts in police resources from neighborhoods to downtown areas because of those protests, and the release of criminal defendants pretrial or before sentences were completed to reduce risk of Covid-19 spread in jails — all may have contributed to the spike in homicides.
Covid-19 seemed to exacerbate everything — officers sometimes had to quarantine because of exposure or cases in their ranks, reducing the number of officers available for patrol, investigations or protest coverage. It was difficult-to-impossible to keep physical distance during protests.
Through the first three months of 2021, a number of major cities have indicated they are still experiencing high rates of violent crime, according to Laura Cooper, executive director of the Major Cities Chiefs Association. “Some cities are set to outpace last year’s numbers,” she said.

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.

Improper Opinion Testimony

Assault, Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Opinion Testimony, Prosecutorial Misconduct, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Chicago cops reluctantly testify against 1 of their own

In State v. Hawkins, the WA Court of Appeals held that a police officer gave improper opinion testimony regarding the defendant’s guilt and credibility.

FACTUAL BACKGROUND

The Defendant Mr. Hawkins was arrested and charged with assault in the third degree for briefly strangling Mr. Ali, a King County Metro bus driver, over a fare dispute. The incident was witnessed by a passenger who did not speak English and a passenger who saw an argument occur, but did not witness actual physical touching.

The State’s only other witnesses were Deputy Baker and Deputy Garrison, the King County Sheriff’s detective that reviewed Baker’s initial investigation and referred Hawkins’s case for prosecution. Over defense counsel’s repeated objections, the prosecutor tried to elicit opinion testimony from both deputies concerning whether they believed whether the bus driver Ali was a credible witness.

Several of the defense’s objections were sustained, but the court eventually allowed Officer Baker to answer. Although Deputy Baker’s answer was couched in probable cause to arrest, Baker’s answer implied he believed Ali’s version of events over Hawkins.

Deputy Garrison’s answers also gave an opinion about credibility. Garrison stated he would only refer a case for prosecution if there was “some credible ability to prosecute.”

The jury convicted Hawkins as charged.

On appeal, Hawkins contends that the prosecutor committed prejudicial misconduct by eliciting opinion testimony from police witnesses concerning witness credibility.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law. A prosecutor also functions as the representative of the people in a quasi-judicial capacity in a search for justice.

The Court said the prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. Thus, a prosecutor must function within boundaries while zealously seeking justice.

Also, the Court of Appeals emphasized there are some areas of opinion testimony that are inappropriate in criminal trials.

“This is particularly true when the opinion testimony is sought from law enforcement,” said the Court of Appeals. “Officer testimony has an aura of special reliability and trustworthiness.”

The Court of Appeals said the State’s case was weak.

“There is no question that the State’s case against Hawkins was weak. There was no physical evidence, there was no surveillance footage, and Ali had no visible injuries and declined medical attention. The State offered no firsthand witnesses other than Ali.” ~WA Court of Appeals

As a result, the Court reasoned that the State’s case inappropriately focused on the police officers’ opinion of the bus driver Ali’s credibility:

“Because the State’s case was weak, eliciting the officers’ opinions that they believed they had a credible witness in Ali had a clear prejudicial effect on Hawkins’s right to a fair trial.” ~WA Court of Appeals

The Court ruled the Defendant’s case was prejudiced and overturned his conviction.

My opinion? Good decision. A prosecutor functions as the representative of the people in the search for justice. The prosecutor also owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated.

It is inappropriate in a criminal trial for the prosecutor to seek opinion testimony as to the guilt of the defendant, the intent of the accused, or the credibility of witnesses. This is particularly true where the opinion sought is that of a law enforcement officer.

Please review my Legal Guide on Prosecutorial Misconduct for more information on this subject. And please contact my office if you, a friend or family member face criminal charges. Hiring an experienced and competent defense attorney is the first and best step toward justice.

Prosecutor’s “War On Drugs” Comments Deprived Defendant of a Fair Trial

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jury Trial, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Is It Time To End The War on Drugs? Senator Cory Booker Thinks So. - DailyClout

In State v. Loughbom, the WA Supreme Court held that the Prosecutor’s comments during trial advocating the “War on Drugs” amounted to Prosecutor Misconduct and deprived the defendant of a fair trial.

FACTUAL BACKGROUND

In May 2017, Mr. Loughbom was charged with three counts of various drug crimes. In October of 2017, Loughbom’s case proceeded to jury trial.  During trial, the prosecutor referenced the “War on Drugs” three times:

1. During his opening statement, the prosecutor said, “The case before you today represents yet another battle in the ongoing war on drugs throughout our state and throughout our nation as a whole. I’ve been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of Delivery and Conspiracy to Deliver a Controlled Substance.”

2. The prosecutor began his closing argument by stating, “The case before you represented another battle in the ongoing war on drugs throughout our state and the nation as a whole. I have been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of delivery of controlled substances . . . and conspiracy to deliver a controlled substance.”

3. During the State’s rebuttal argument, the prosecutor stated that “law enforcement cannot simply pick and choose their Confidential Informants to be the golden children of our society to go through and try and complete these transactions as they go forward in the, like I said, the ongoing war on drugs in this community and across the nation.”

Although the jury found Mr. Loughbom not guilty of one drug charge, he was found guilty of delivery of methamphetamine and conspiracy to deliver a controlled substance other than marijuana. The trial court sentenced Loughbom to 40 months in prison and 12 months of community custody.

Loughbom appealed on arguments that the prosecutor’s repeated comments about the war on drugs constituted flagrant and ill intentioned misconduct.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court began by saying We presume prosecutors act impartially “in the interest of justice.” At the same time, we expect prosecutors to “‘subdue courtroom zeal,’ not to add to it, in order to ensure the defendant receives a fair trial.” State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015) (quoting Thorgerson, 172 Wn.2d at 443). Justice can be secured only when a conviction is based on specific evidence in an individual case and not on rhetoric. We do not convict to make an example of the accused, we do not convict by appeal to a popular cause, and we do not convict by tying a prosecution to a global campaign against illegal drugs.

“We agree with Loughbom and hold that the prosecutor’s remarks about the war on drugs were improper and rise to the level of being flagrant and ill intentioned. The prosecutor’s repeated invocation of the war on drugs was a thematic narrative designed to appeal to a broader social cause that ultimately deprived Loughbom of a fair trial.” ~WA SUpreme Court

The Court also reasoned that the prosecutor’s repeated references to the war on drugs were erroneous, and that framing Loughbom’s prosecution as representative of the war on drugs violated his right to a fair trial.

With that, the WA Supreme Court reversed the Court of Appeals and remand for a new trial.

My opinion? Excellent decision. Clearly, the prosecutor’s repeated appeals to the war on drugs caused incurable prejudice. It is deeply troubling that the State employed the war on drugs as the theme of Loughbom’s prosecution and reinforced this narrative throughout his trial.

Please contact my office if you, a friend or family member face Drug Offenses or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

A Snowmobile IS a Motor Vehicle

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft of Motor Vehicle, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Search warrant in Innisfil leads to charges in snowmobile theft ...

In an interesting turn – and a razor-thin 5-4 decision – the WA Supreme Court’s State v. Tucker reversed an earlier decision by the WA Court of Appeals and found that a snowmobile IS, in fact, a “motor vehicle” for purposes of Washington’s Theft of a Motor Vehicle statute.

BACKGROUND FACTS

I recently blogged about this case last year. 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. Therefore, her conviction remained unchanged on the theft of a motor vehicle charge.

Ms. Tucker appealed the conviction. The WA Court of Appeals reversed the lower court. Relying on Barnes, a majority of that court held that the statute criminalizes only theft of “a car or other automobile.”

Apparently, the story didn’t end. This time, the State appealed the case to the WA Supreme Court, who seems to have made a final decision on the matter (for now).

COURT’S ANALYSIS AND CONCLUSIONS

The WA Supreme Court reasoned that the WA legislature defined “motor vehicle” as a self-propelled device that is capable of moving and transporting people or property on a public highway.

The Court reasoned that Washington’s vehicle and traffic laws define “Motor Vehicle” as a vehicle that is self-propelled or a vehicle that is propelled by electric power obtained from overhead trolley wires but not operated upon rails.  Also, “Vehicle” is further defined as a “device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway.”

“So a motor vehicle is a self-propelled device (a description of its mechanics) that is capable of moving and transporting people or property on a public highway (a description of its function). Where, as here, the legislature has provided a definition, we are not free to create our own.”

It also reasoned that although the trial judge said that a snowmobile is a motor vehicle in part because a snowmobile must be licensed (at least in some situations), the legislature’s definition of “motor vehicle” says nothing about a licensing requirement. “Although such a requirement may provide the courts with a useful test, we cannot simply create a new requirement out of thin air.”

Furthermore, reasoned the Court, a “snowmobile” is a self-propelled device that is capable of moving and transporting people or property on a public highway. Here, the court reasoned that although people generally don’t operate snowmobiles – which are designed for use on snow and ice – on public highways, Washington’s  Snowmobile Act not only makes clear that a snowmobile is capable of moving and transporting people or property on a public highway, at least when the highway is covered with snow or ice, but also makes clear that it is legally permitted to do so.

“In sum, a snowmobile satisfies the definition of “motor vehicle” provided by the legislature.”

Accordingly, the WA Supreme Court reversed the Court of Appeals and affirmed Tucker’s conviction.

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