Category Archives: Violent Crime

Most Americans Cannot Believe Violent Crime is Decreasing

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Reported violent crime rate in the U.S. 2022 | Statista

In an article from NPR, journalists , and report that Americans can’t believe that violent crime is decreasing.

In 2020, the United States experienced one of its most dangerous years in decades. According to FBI statistics, the number of murders across the country surged by nearly 30% between 2019 and 2020, The overall violent crime rate, which includes murder, assault, robbery and rape, inched up around 5% in the same period.

But in 2023, crime in America looked very different.

VIOLENCE HAS DROPPED

“At some point in 2022 — at the end of 2022 or through 2023 — there was just a tipping point where violence started to fall and it just continued to fall . . . The national picture shows that murder is falling. We have data from over 200 cities showing a 12.2% decline in 2023 relative to 2022.” ~Jeff Asher, a crime analyst and co-founder of AH Datalytics.

Citing his own analysis of public data, Mr. Asher also found instances of rape, robbery and aggravated assault were all down too. Yet when you ask people about crime in the country, the perception is it’s getting a lot worse.

THE GALLUP POLL

A Gallup poll released in November found 77% of Americans believed there was more crime in the country than the year before. And 63% felt there was either a “very” or “extremely” serious crime problem — the highest in the poll’s history going back to 2000. So what’s going on?

WHY IS VIOLENT CRIME DECREASING?

For cities like San Francisco, Baltimore and Minneapolis, there may be different factors at play. And in some instances, it comes as the number of police officers declines, too.

Baltimore police are chronically short of their recruitment goal, and as of last September had more than 750 vacant positions, according to a state audit report. In Minneapolis, police staffing has plummeted. According to the Star Tribune, there are about 560 active officers — down from nearly 900 in 2019.

In Minneapolis, the city is putting more financial resources into nontraditional policing initiatives. The Department of Neighborhood Safety, which addresses violence through a public health lens, received $22 million in the 2024 budget. And in San Francisco, police there say they’ve been better at making arrests.

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

Deliberate Cruelty

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Burning Red Flare Held Up At Night by RockfordMedia | VideoHive

In State v. Burrus, the WA Court of Appeals held there was sufficient evidence the defendant demonstrated deliberate cruelty to the victim when he poured gasoline on the victim, lit a flare and set the victim on fire.

BACKGROUND FACTS

Mr. Burrus poured gasoline on victim Mr. Busch and threw a lit flare at him, causing him to catch fire. Busch suffered second and third degree burns on 30 percent of his body. The State charged Burrus with attempted first degree murder with the aggravating factor that his conduct manifested deliberate cruelty. The jury found Burrus guilty as charged.

Based on the jury’s finding of deliberate cruelty, the trial court imposed an exceptional  upward sentence. The trial court found that the aggravating factor of deliberate cruelty was a compelling reason to justify an exceptional sentence and imposed a sentence of 300 months.

On appeal, Mr. Burrus argued the the trial court erred in imposing an exceptional sentence based on the jury’s finding of deliberate cruelty.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals stated that under the Sentencing Reform Act, generally, a court must impose a sentence within the standard range. A court may depart from the guidelines and impose a higher sentence if it finds substantial and compelling reasons. The existence of an aggravating factor may support an exceptional sentence.

Next, the court addressed the issue of whether the lack of comparative evidence meant there was insufficient evidence to supported the jury’s finding of deliberate cruelty.

“Burrus says insufficient evidence supports the jury’s finding of deliberate cruelty,” said the Court of Appeals. “He contends that because the State failed to provide comparative evidence of typical attempted first degree murders, the jury had insufficient evidence to determine whether the facts here were atypical.”

However, the Court of Appeals disagreed with Burrus and held that the State is not required to provide the jury with examples of typical attempted first degree murders:

“It is within a jury’s capability, based on their common sense and common experience, to determine that dousing a person in gasoline, lighting them on fire, and then leaving them to burn is deliberately cruel.” ~WA Court of Appeals

Consequently, the Court also reasoned that Mr. Burrus cannot assert a vagueness challenge to the deliberate cruelty aggravator, either.

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.

 

Decrease in DV Reporting

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Audrey McIntosh | Commonwealth Fund

Great article by Denver Pratt of the Bellingham Herald reports that Whatcom County agencies helping domestic violence and child abuse victims say they’ve seen a decrease in DV reporting since the start of the COVID-19 pandemic.

According to Pratt, the agencies say this is a worrying sign, as it likely means victims are isolated with their abusers and are less likely to be able to access help.

Elizabeth Hart, a program manager with Domestic Violence and Sexual Assault Services, said the nonprofit has seen a decrease in the number of calls reported to its 24-hour helpline. Hart said in March they helped 236 clients, as compared to 360 in March of last year.

Hart said the decrease suggests to her that people in abusive situations have a limited ability to reach out for help as Washington is under a “Stay Home, Stay Healthy” order in an attempt to stop the spread of the new coronavirus. Gov. Jay Inslee has extended the order through May 31.

Hart said during a stay-home order, abusive partners have more opportunity to watch and control who their victims talk to and what they do. And as stresses mount in the home, like job loss or having to educate children while schools are closed, the number of abusive incidents could rise or become more dangerous, Hart said.

Ms. Hart also said if a victim loses a job, they can become more financially dependent on their abusive partner, making it harder to leave the abusive relationship. Hart said prior to the global pandemic, financial impacts were one of the main reasons a victim would stay with an abusive partner.

However, false reporting and victim recantations also commonly happen in DV crimes; and are just as likely to exacerbate during these strange and uncertain times.

Please contact my office if you, a friend or family member are charged with Domestic Violence during this “Stay Home, Stay Healthy” period. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Police Stop Booking Some People Into Whatcom Jail Due To Coronavirus

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Whatcom County law enforcement agencies stopped booking people into the Whatcom County Jail for certain crimes on Thursday, March 19, due to the coronavirus outbreak.

Apparently, people arrested will be booked and released for everything except certain offenses that represent a serious threat to public safety. Those crimes include domestic violence, violations of a no-contact order, felony DUI, sex offenses, burglary and other violent crimes. Those booked for misdemeanor DUI will be held until sober.

The memo suggests officers arrest, book and release people when they can, giving them notice of when to appear in court. And those who are booked on charges that pose a threat to public safety will be held until they see a judge.

At this point, seven Whatcom County residents have been diagnosed with the respiratory illness, one of whom died, according to the Whatcom County Health Department.

Whatcom County Sheriff Bill Elfo said the measures are looking out for the health of the people who work in the jail, as well as those incarcerated there.

“They’re in place because of some compelling public safety and public health issues. We want to prevent the spread of COVID-19, but do it in a way that doesn’t minimize public safety. We’re still booking and holding violent people. These are temporary measures . . . We’re trying to take the jail population as low as we can safely and reasonably do under the circumstances.” ~Sheriff Bill Elfo

Please contact my office if you, a friend or family member face criminal charges and are jailed indefinitely in the midst of the Coronavirus Pandemic. Obviously, getting released as soon as possible is a major priority. And hiring an experienced attorney is the first and best step toward justice.

Crime Rates By WA Cities

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A recent report from www.backgrounchecks.org  ranks Washington cities by crime rates. In short, although Washington cities are lower than average violent crime, there’s an increase in property crime.

“In the state’s larger cities such as Seattle and Spokane, you’re more likely to have your car broken into than become the victim of an assault. Still, despite Washington’s property crime issue, there are plenty of communities in the state with an all-around high level of safety.”  ~backgroundchecks.org

According to the report, the safest city in Washington is Snoqualmie. Recording just two violent crimes in 2017, Snoqualmie logged a very low 0.15 violent crimes per 1,000 residents, along with a property crime rate half of the U.S. national average.

Backgroundchecks.org uses the most recent FBI crime statistics to create state rankings. There were initially 7,430 cities in the data set. After filtering out the cities with populations of less than 10,000, 2,929 cities remained. The website then calculated violent crime rates and property crime rates by dividing the crime numbers by the population to get rates per 1,000. They also calculated the ratio of law enforcement workers to per 1,000. These were weighted with -50% for the violent crime rate, -25% for the property crime rate, and +25% for the law enforcement rate. The resulting metric gave us a the safety index score. In short, the higher this number more safe the city is.

Not every person arrested is guilty of a crime.  Other studies show that densely populated cities also have higher incidence of overall arrests. Therefore, 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.

A Cell Phone “Ping” Is a Search

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In State v. Muhammad, the WA Supreme Court held that a cell phone “Ping” is a search under the WA Constitution and the Fourth Amendment.

BACKGROUND FACTS

Police investigated the rape and murder of Ms. Ina Claire Richardson. The night she was killed, Richardson had shopped at a local grocery store.  Security cameras recorded her walking through the parking lot toward a distinctive maroon sedan. Minutes later, the vehicle’s headlights switched on, and the vehicle exited the parking lot, drove onto an access road behind a nearby hotel, and parked. Two individuals appeared in the car, which remained parked for approximately one hour. Police officers later discovered a condom wrapper at this location.

On November 10, 2014, a law enforcement officer recognized the unique features of the maroon sedan from the security footage and conducted a traffic stop. The driver was Mr. Muhammad. During the stop, the officer asked Muhammad about his vehicle, asked him whether he had gone to the grocery store or had been in the area on the night of the murder, and obtained Muhammad’s cell phone number before letting him go.

After this encounter, law enforcement “pinged” Muhammad’s cell phone without a warrant. The ping placed Muhammad in an orchard in Lewiston, Idaho. Washington and Idaho police arrived, seized Muhammad’s cell phone, and impounded his car. Police also sought and obtained a search warrant for Muhammad’s car.

Muhammad was taken into custody. He denied any involvement in the rape and murder and eventually asked for legal counsel. Police later searched Muhammad’s car. They discovered blood on the passenger seat; in the trunk, they found latex gloves and other incriminating evidence. The police also discovered condoms in the trunk of the sedan. These condoms matched the condom wrapper found by the hotel service entrance. Finally, The blood was matched to that of Ms. Richardson. Autopsy swabs of Richardson’s vagina and fingernails revealed a limited amount of DNA (deoxyribonucleic acid) matching Muhammad’s profile.

The police obtained a search warrant for Muhammad’s cell phone records. These calls he made on the night of the incident connected to multiple cell towers, indicating that Muhammad was moving. One such cell tower placed Muhammad in the location where Richardson’s body was found.

Muhammad was arrested and charged with rape and felony murder.

At trial, Muhammad moved to suppress all physical evidence collected as a result of the warrantless ping of his cell phone. After a CrR 3.6 hearing, the trial court issued a written order denying the motion based in part on exigent circumstances. A jury convicted Muhammad as charged. Muhammad appealed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Cell Phone “Ping” Tracking Was A Warrantless Search.

The WA Supreme Court held that the “ping” tracking of Muhammad’s cell phone was indeed a search.

“When law enforcement loses sight of a suspected individual, officers need merely ask a cellular service carrier to ping that individual’s phone and almost instantaneously police acquire data on the suspect’s past and present location,” said the Court. “This location tracking technique does substantially more than binoculars or flashlights; it enables officers to see farther than even the walls of a home—it pierces through space and time to pinpoint a cell phone’s location and, with it, the phone’s owner.”

The Court further reasoned that this type of search was exactly what happened to Mr. Muhammad. “The police could not locate Muhammad,” said the Court. “They knew only that he had likely left the area after officers returned to his apartment complex and found the maroon sedan had disappeared. As Muhammad pointed out, the officers’ senses alone could not locate him unless they converted his phone into a tracking device,” said the Court.

“Historical and real-time CSLI, like text messages, reveal an intensely intimate picture into our personal lives. Our cell phones accompany us on trips taken to places we would rather keep private, such as the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

              2. Exigent Circumstances Exist to Justify the Warrantless Cell Phone Search.

The Court said that because the State failed to get a warrant prior to pinging Muhammad’s cell phone, the evidence obtained pursuant to the improper search should be suppressed unless the State proves that an exception to the warrant requirement applies. “Exigent Circumstances” is one of those exceptions.

To prove exigent circumstances, the State must point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion. “The mere suspicion of flight or destruction of evidence does not satisfy this particularity requirement,” said the Court.

The Court reasoned that under the facts of this case, the State has proved exigent circumstances—specifically that Muhammad was in flight, that he might have been in the process of destroying evidence, that the evidence sought was in a mobile vehicle, and that the suspected crimes (murder and rape) were grave and violent charges.

With that, the WA Supreme Court affirmed Muhammad’s conviction.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges and the evidence was obtained through a warrantless search of cell phone data and/or location. It is imperative to hire an experienced criminal defense attorney who is well-versed in the law regarding search and seizure of this evidence.

WA Supreme Court Invalidates “Community Caretaking” Search

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In State v. Boisselle, the WA Supreme Court held a police officer’s warrantless entry into the defendant’s duplex in this case violated article I, section 7 of the WA Constitution because their emergency aid function search was a unlawful pretext for a criminal investigation as the officers were suspicious, if not convinced, that a crime had taken place before entering the unit.

BACKGROUND FACTS

Law enforcement officers were dispatched to Mr. Boisselle’s home after two anonymous 911 calls reported that a man shot and possibly killed someone at the residence. While responding to the calls, the officers learned that the residence was related to an ongoing missing person/homicide investigation. Unable to determine whether someone was alive inside the home, the officers entered the residence and conducted a warrantless search, discovering evidence of a murder therein. Boisselle  was arrested and jailed.

Boisselle moved to suppress the evidence, arguing that the officers’ warrantless search was unlawfully pretextual  under article I, section 7 of the Washington Constitution. The trial court denied Boisselle’s motion, concluding that the officers’ search fell within the emergency aid function of the community caretaking exception to the warrant requirement. Following a jury trial, Boisselle was convicted of second degree murder and second degree unlawful possession of a firearm. The Court of Appeals affirmed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

I. The Community Caretaking Exception

First, the WA Supreme Court agreed that the application of the community caretaking exception has become muddled, and took this opportunity to clarify the appropriate factors in determining whether an officer has exercised his or her emergency aid community caretaking function.

“The community caretaking exception is one such exception to the warrant requirement,” said the Court. “Under the community caretaking exception, law enforcement officers may make a limited invasion of constitutionally protected privacy rights when it is necessary for officers to perform their community caretaking functions.” The Court explained this exception recognizes that law enforcement officers are “jacks of all trades” and frequently engage in community caretaking functions that are unrelated to the detection and investigation of crime, including delivering emergency messages, giving directions, searching for lost children, assisting stranded motorists, and rendering first aid.

Next, the Court created the following multi-part test for evaluating whether an officer exercised his or her community caretaking function when conducting a warrantless search:

(1) Was the community caretaking exception used as a pretext for criminal investigation? If the court finds pretext, the analysis ends. If the court determines that the exception was not a pretext, the analysis continues is question is answered negatively, the analysis continues.

(2)(a) If the search fell within an officer’s general community caretaking function, such as the performance of a routine check on health or safety, the court must determine whether the search was “reasonable.” “Reasonableness” depends upon a balancing of a citizen’s privacy interest in freedom from police intrusion against the public’s interest in having police perform a community caretaking function.

(2)(b) If the search fell within an officer’s emergency aid function which arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm, the court, before determining whether the search is “reasonable,” must first determine whether: “(1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.”

II. The Warrantless Search of Boisselle’s Home Was Pretextual.

The Court reasoned that an unlawful pretextual search occurs when occurs when officers rely on some legal authorization as a mere pretense to dispense with a warrant when the true reason for the seizure is not exempt from the warrant requirement. When determining whether a given search is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.

“Viewing the totality of the circumstances, we are unconvinced that the officers’ search of Boisselle’s home was not a pretext for a criminal investigation.”

The Court reasoned that here, law enforcement’s involvement began because of two anonymous 911 calls reporting a crime. When the officers arrived at Boisselle’s duplex unit, they noticed a smell that could be attributed to a decomposing body, and they sought to confirm whether a crime had been committed or if a crime victim was inside. The officers were eventually able to see into the unit and saw signs of a struggle and missing carpet, which could be a sign that someone sought to cover up a crime scene.

“Taken together, these facts demonstrate that the officers were suspicious, if not convinced, that a crime had taken place,” said the Court. “Because of the officers significant suspicions, the search of Boisselle’s home was necessarily associated with the detection and investigation of criminal activity.”

Accordingly, the Court held the officers’ warrantless search did not fall under the emergency aid function of the community caretaking exception, and it violated article I, section 7 of the WA Constitution. Thus, the trial court erred in denying Boisselle’s motion to suppress. “We reverse the Court of Appeals and remand to the trial court for further proceedings,” said the Court.

My opinion? Grisly as the facts appear to be, the Court reached the right decision. Freedom from government intrusion lies at the very foundation of Western law and culture, and is one of our nation’s most cherished freedoms. That’s why we insist on police obtaining warrants, unless exigent circumstances dictates otherwise.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member were charges with a crime involving an unlawful pretextual search. Hiring competent defense counsel is the first and best step toward achieving justice.

Self-Defense in Jail

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In State v. Tullar, the WA Court of Appeals held that a defendant was entitled to a self-defense instruction even though he did not testify that he feared his opponent would badly beat him. The defendant may establish his subjective fear by circumstantial evidence through the testimony of others.

FACTUAL BACKGROUND

On December 31, 2017, a correctional officer  Millward was making his welfare checks on inmates at the Okanogan County jail.  He came across Johnathan Cook’s cell. Officer Millward saw Cook facing away from the door, and Officer Millward could tell something was wrong. Officer Millward asked Cook to turn around, and he noticed bruising and a laceration on Cook’s face, a bloodstained shirt, and bruising on his ear. Officer Millward took Cook to get medical attention. Cook was diagnosed with a fractured nose and a fractured left eye socket.

Mr. Cook said he was assaulted by fellow inmate Brandon Tullar.

Jail authorities confronted Tullar, who denied fighting Cook. Despite his denials, there were noticeable marks on Tullar’s hands and his elbow, as well as red marks on his neck.  The State charged Tullar with assault in the second degree. Tullar asserted the defenses of self-defense and mutual combat.

Tullar’s case went to trial. He withdrew his claim of self-defense and proceeded with the defense of mutual combat. He then called two fellow inmates who witnessed the fight. According to both inmates, Cook and Tullar were arguing, and Cook challenged Tullar to a fight. Cook and Tullar then went upstairs to Cook’s cell, with Tullar going first. Once inside the cell, Cook hit Tullar from behind. Cook put Tullar in a chokehold, but Tullar escaped. They exchanged punches until Cook gave up.

Despite the testimony from witnesses, the trial court denied Tullar’s jury instruction for self-defense because Tullar did not testify. The trial court also noted that self-defense was inconsistent with mutual combat. The jury found Tullar guilty of assault in the second degree. Tullar timely appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals gave background on Washington’s self-defense laws. In Washington, the use of force is lawful when used by a person about to be injured, provided that the force used is not more than necessary. Because self-defense is a lawful act, it negates the mental state and the “unlawful force” elements of second degree assault. Importantly, the Court also reasoned that self-defense does not require testimony from the defendant.

“Evidence of self-defense may come from whatever source and the evidence does not need to be the defendant’s own testimony.”

Here, Tullar’s witnesses testified that Cook hit Tullar from behind and then put him in a chokehold. From this, a trier of fact could infer that Tullar reasonably feared that if he did not fight back, he would be rendered unconscious. Additionally, Tullar’s witnesses testified that Tullar stopped fighting when Cook gave up. From this, a trier of fact could find that Tullar used no more force than necessary. A self-defense instruction was warranted to let the finder of fact determine whether it believed Cook or whether it believed Tullar’s witnesses.

“The trial court’s decision to not instruct the jury on self-defense virtually guaranteed Tullar’s conviction,” said the Court of Appeals. “The trial court’s refusal to give a self-defense instruction thus prejudiced Tullar.”

Consequently, the Court of Appeals reversed Tullar’s conviction.

My opinion? Good decision. Self-defense is a substantive defense which can guarantee a full acquittal if the court allows the instruction at trial. It shouldn’t matter whether the defendant testifies if trustworthy witnesses can testify and lay the groundwork for the defense.

Please contact my office if you, a friend or family member face criminal charges and self-defense is a viable defense. Hiring an effective and competent defense attorney is the first and best step toward justice.

Washington Crime Report Released

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Crime Report — The Downey Patriot

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. Hiring an effective and competent defense attorney is the first and best step toward justice.

Right to Impartial Jury

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In State v. Phillips, the WA Court of Appeals held that the trial court did not violate an African-American defendant’s right to an impartial jury by dismissing a prospective juror despite the juror’s feelings that African American men are more prone to violence.

BACKGROUND FACTS

On July 1, 2016, Mr. Phillips came home late after his wife Ms. Philips was in bed asleep with their infant daughter. Ms. Philips told Mr. Phillips to leave her alone. Their daughter called 911 and reported that Mr. Phillips was hitting Ms. Philips. When Mr. Phillips saw his daughter was calling the police, he knocked the phone from her hands.

King County Sheriff’s deputies responded to the 911 call and found the house in chaos. Mr. Phillips was arrested and booked into jail. From jail, Mr. Phillips repeatedly called Mrs. Philips demanding that she get him out and expressing his anger at the police having been called. Mr. Phillips was charged with Assault in the Second Degree Domestic Violence (DV) and Tampering With a Witness.

Jury Selection

During jury selection, the trial judge asked if any of the jurors had personal experience
with domestic violence. Juror 10 was among the members who raised their hand. When asked to elaborate, he explained that his sister and his wife’s sister-in-law were both involved in abusive relationships with intimate partners.

Juror #10 also revealed an experience in college after an intramural basketball game when an African American player on the opposing team assaulted him. Juror 10 explained, “nothing came of it, but it left an emotional imprint.” He further elaborated,

“And this is an emotional truth. I don’t live this way; I don’t believe this; but I’m also aware that feelings happen in reality that black men are more prone to violence . . . It was also notable that afterwards when, you know, the gym supervisor was called and there was just a huddle on the spot, and then, of course there was denial and, you know, dismissiveness of it. And that’s another narrative; that those who are violent try to get out of it; so those are two personal emotions imprints that are there, as well.”

From these comments, both the State Prosecutor and Mr. Philips’ defense attorney asked numerous questions to Juror #10. Ultimately, neither the State nor defense counsel exercised a peremptory challenge or moved to strike Juror #10 for cause. Later, Juror #10 served on the jury.

Ultimately, the jury found Phillips guilty of second degree assault and found the State prove aggravating circumstances. The jury was unable to reach a verdict on the witness tampering charge, and it was dismissed. Mr. Philips was sentenced to 120 months.

He appealed. One of the issues was whether Juror #10 should have been struck from serving on the jury panel.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals upheld Mr. Philips’ conviction.

The Court started by giving a substantial amount of background on the issue of jury selection. It said the Sixth and Fourteenth Amendments of the United States Constitution, and article 1, section 22, of the Washington Constitution, guarantee a criminal defendant the right to trial by an impartial jury.

Furthermore, in order to ensure this constitutional right, the trial court will excuse a juror for cause if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of prejudice.

Also, at trial, either party has a statutory right to challenge a prospective juror for cause. “Actual bias is a ground for challenging a juror for cause,” said the Court of Appeals. “Actual bias occurs when there is the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.”

Furthermore, Under State v. Irby, RCW 2.36.110 and CrR 6.4 it is the judge’s duty to excuse potential jurors from  jury service if they have manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect. These court precedents, statutes and court rules give a trial judge an independent obligation to excuse a juror, regardless of inaction by counsel or the defendant.

However, the Court of Appeals ultimately reasoned that the present case was distinguishable from Irby.

Also, the Court of Appeals reasoned that defense counsel was alert to the possibility of biased jurors.

“Defense counsel actively questioned Juror #10, including questioning whether, despite juror 10’s concerns, the juror would follow the court’s instructions and base his decision on the evidence presented,” reasoned the court of Appeals. “As a result, defense counsel did not challenge Juror #10. This suggests that defense counsel observed something during voir dire that led counsel to believe Juror #10 could be fair.”

Furthermore, the Court of Appeals said it was also significant that Phillips used his peremptory challenges to strike several jurors, but had one peremptory challenge remaining when he accepted the jury, including Juror #10. “Again, this suggests that defense counsel either wanted juror 10 on the jury, or did not want one or both the next potential jurors on the panel,” said the Court of Appeals.

Consequently, the Court of Appeals held that the trial court did not abuse its discretion in failing to excuse Juror #10 for cause and upheld Mr. Philips’ conviction.

My opinion? Bad decision.

I’ve conducted nearly 40 jury trials, which is more experience than most criminal defense attorneys have. In my experience, potential jurors have a tendency to mitigate, justify, deny, back-pedal and just plain cover up any biases they have. It’s human nature. Therefore, if any juror states they have a biases which prejudice a criminal defendant, then that juror should be excused. Period.

Unfortunately, it appears Defense Counsel also failed to strike Juror #10. That is unfortunate as well. As the judge said, however, this may have been strategic. Perhaps Defense Counsel wanted to avoid impaneling a potential juror who was actually more biased than Juror #10. We don’t know.

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.