Category Archives: Washington Supreme Court

WA Supreme Court Reverses Kitsap County DUI Case Decision Challenging Breathalyzers

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Illustration of rewind button on courtroom by Barbara Kelley

Recently, the Washington State Supreme Court decided State v. Keller. The Court’s decision reversed a 2022 Kitsap County District Court decision that ruled breathalyzers inadmissible in court. This high-profile case is discussed in a prior blog post due to its potential to affect on hundreds of DUI cases in Washington State.

In 2022, the Kitsap County District Court ruled breathalyzers inadmissible in court after it said it found state regulations surrounding the machine used by the Washington State Patrol were not followed.

The decision was a result of a case where in 2020 a Washington state man crashed his vehicle and failed a breath alcohol test. The man challenged the admission of the results and argued state regulations had not been followed.

The breath test machine, the Dräger Alcotest 9510, was approved by the Washington State Patrol toxicologist in 2010 and has been in common use since 2015.

The Drager machine determines someone’s blood alcohol level by calculating the average of four samples. Under state law, the calculations are rounded to four decimal places, however, the machine truncates rather than rounds to four decimal points.

The court agreed with the man’s arguments that regulations had not been followed and excluded the test results. The court ruled that statutes and regulations require the breathalyzer machine to perform the calculations itself.

Furthermore, court documents said the toxicologist knew about the calculation error and didn’t disclose the information until 2021.

The Kitsap case bypassed the typical appellate process and went straight to the state Supreme Court because of the extraordinary circumstances surrounding the case. The case could have had major implications for thousands of DUI cases due to law enforcement agencies statewide using the breathalyzer machine at the center of the case.

In the decision to hear the case, the Supreme Court Commissioner said, “This decision has the potential to affect a great number of Washington prosecutions for driving under the influence; this case involves significant public interest questions.”

THE COURT’S ANALYSIS AND CONCLUSIONS

In its decision, the Supreme Court said current statutes and regulations don’t require the breathalyzer machine to calculate the average of the tests itself at the time of the test for it to be admissible in court. The Court said no source of law requires the calculation required by former WAC 448-16-060 to be performed by the breath test instrument. Also, the breath test results can be calculated in a different manner, as long as the different manners meet all other rules on admission of evidence in a criminal trial. Finally, the State can lay foundation for admitting the breath test by performing the required calculation at a later time.

With that, the Court reversed the district court’s evidentiary rulings and suppression order.

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

Protect Yourself Against Jury Duty Scams

Bellingham Defense Attorney, Jury Selection, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Washington State Courts - News, Reports, Court Information

According to a press release, Washington courts and residents are victimized by scams involving false claims from court officials or law enforcement officers.

“Please be advised about the following court-related scams and take appropriate precautions to protect yourself from identity and financial threats. Washington court personnel may contact you by phone, but they will never ask you to provide your personal information such as social security number or bank or credit card information.” ~ Washington Courts Press Release

“SPOOFED” CALLS FROM THE WASHINGTON SUPREME COURT

The Washington Supreme Court has become aware some state residents are receiving “spoofed” calls using fake caller ID information displaying the number of the Supreme Court Clerk’s Office. It is unknown what the falsified callers are asking of recipients, but phone and email scams in recent years have included scam artists pretending to be with courts, police and prosecutor offices.

In its press release, the Washington Supreme Court denies making calls to residents. It is advised that if you receive such a phone call, do not give any information. Please hang up and contact law enforcement immediately. If you receive a call from someone claiming to be from the state Supreme Court, please contact us at 360-357-2074.

JURY DUTY PHONE SCAM

Washington residents have received phone calls from individuals claiming to be law enforcement officers (such as a Deputy Sheriff) or court personnel saying they’ve missed jury duty — and must pay. These callers request immediate payment to avoid issuance of a warrant related to Jury Duty. These payments have ranged from a few hundred to thousands of dollars. Typically, the payments are requested to be made via some type of pre-paid card such as “Green Dot.”

If you receive such a phone call, do not give any personal, credit card, or banking information. You should hang up and contact law enforcement immediately.

COURT APPEARANCE CYBER SCAM

A fraudulent email is being widely distributed around the U.S. with the subject line “Urgent court notice NR#73230” (or another random number) that claims the receiver is scheduled to appear in “the court of Washington” on a particular date. The receiver is then instructed to open the attached court notice and read it thoroughly and is warned about not appearing.

This is a “malware” email and will download a virus to your computer if you open the attachment. Please delete the email immediately without opening it. This email did not originate with the Administrative Office of the Courts or any Washington courts.

Jury service is as wonderful a responsibility as it is weighty. You help fulfill the right of defendants to a trial by their peers – a cornerstone of democracy. But it can be onerous, too, particularly for people who can’t afford the time off from their jobs or businesses or from caring for their children or sick loved ones. And nowadays, jury duty is subject to scams and spoofs. Be careful!

And 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.

Deploying Tear Gas In Jails & Prisons

Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Dozens Killed in Prison Uprisings in Ecuador | Human Rights Watch

In Snaza v. State, the WA Supreme Court narrowly held in a 5-4 decision that a state statute wrongfully granted a public official outside a county sheriff’s office authority over when police can use tear gas to quell a riot.

FACTUAL BACKGROUND

Justice Charles Johnson wrote the majority opinion. He started by saying that following waves of protests across the state and country, calling for racial justice and reform of police practices, the Washington Legislature enacted several statutes in 2021 establishing requirements for tactics and equipment used by peace officers.

RCW 10.116.030(1) provides tear gas may not be used “unless necessary to alleviate a present risk of serious harm posed by a: (a) Riot; (b) barricaded subject; or (c) hostage situation.” Subsection (2) imposes specific prerequisites to using tear gas as authorized under subsection (1). For instance, prior to deploying this tactic, law enforcement must exhaust alternatives to the use of tear gas, obtain authorization from a supervising officer, announce to the subjects the intent to use tear gas, and allow sufficient time and space for the subjects to comply with law enforcement’s directives.

In addition to these limits on the use of tear gas, law enforcement must comply with RCW 10.116.030(3), which restricts the use of tear gas as a tactic to suppress riots. This section of the statute says the following:

“In the case of a riot outside of a correctional, jail, or detention facility, the officer or employee may use tear gas only after: (a) Receiving authorization from the highest elected official of the jurisdiction in which the tear gas is to be used, and (b) meeting the requirements of subsection (2) of this section.” ~RCW 10.116.030(3)

Several sheriffs challenged RCW 10.116.030(3)(a), which limits when a sheriff can use tear gas to quell a riot.

MAJORITY COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that thelegislature may not interfere with the core functions of a county office. Quelling a riot is a core function of the sheriff’s office. By granting an official outside a sheriff’s office authority over a core function of the sheriff, RCW 10.116.030(3)(a) violated article XI, section 5 of the Washington Constitution.

“Consistent with the rule our cases establish, we conclude quelling riots is a core function of the sheriff’s office. We emphasize discretionary use of lawful force in riot suppression is a core function of the sheriff’s office. This conclusion necessarily follows and is consistent with how our cases determine the nature of an office’s authority.”

“As we have stated, the county sheriff has been responsible for quelling riots since before the ratification of our state constitution . . . This power and function has “belonged to the sheriff at the time our constitution was adopted, and from time immemorial.” ~WA Supreme Court

DISSENTING OPINION

Justice Gordon McCloud delivered the dissenting opinion. He said the sheriff’s office has never had unfettered discretion to use any means it chose to suppress riots:

“The historical record shows that the legislature limited sheriffs’ discretionary decisions about how to quell riots from the time of statehood. And, of course, the historical record shows that tear gas was not even available at the time of statehood. It necessarily follows that discretionary use of tear gas to suppress riots is not ‘fundamental’ to or ‘inherent’ in the office of sheriff.” ~Justice Gordon McCloud

Jails and prisons are terrible places. Please review Making Bail and 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.

WA Courts Reimburse Defendants For Fines & Costs Associated With Drug Convictions

Bellingham Defense Attorney, Drug Offenses, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Washington Spends $100 Million To Vacate 350,000 Marijuana/Drug Convictions And Reimburse People Criminalized By Unconstitutional Law - Marijuana Moment

In a press release, WA Courts will reimburse defendants for fines or costs paid in connection with drug possession convictions that were found unconstitutional by the Washington Supreme Court.

If you made payments towards legal financial obligations (LFOs) owed in cases vacated as a result of the State v. Blake decision, you may be eligible for a refund. Refunds of LFOs previously paid are ordered when the only conviction(s) in the case are for drug possession. If there are other charges in the case, refunds will be processed on any paid fines or fees specifically related to the possession of controlled substance charge.

Development of the Blake Refund Bureau, which will operate through an online portal, is led by the Administrative Office of the Courts (AOC) in collaboration with local courts and county clerks, public defenders, prosecutors, impacted individuals, advocacy groups and other stakeholders.

“The intent is to have a process that is easy to navigate and will provide for a timely response for individuals to receive their refunds . . . The public will be able to search for their cases by their name or case number.” ~AOC Blake Implementation Manager Sharon Swanson.

In the landmark State vs Blake decision issued on February 25, 2021, the Washington Supreme Court ruled that the state’s drug possession law was unconstitutional and void because it did not require individuals to have knowledge of the drug possession. As a result, those convicted of drug possession on or before February 25, 2021 became eligible to have their convictions vacated and removed from their criminal record, and their paid court-ordered fines and costs — called legal financial obligations (LFOs) — reimbursed.

It is estimated that over 200,000 felony drug possession charges dating back to the 1970s may be eligible to be vacated in superior courts. An estimated additional 150,000 misdemeanor marijuana charges may also be eligible for vacation. To help offset costs to courts, prosecutors, and defense attorneys, the Washington State legislature approved $47 million for the efforts of vacating hundreds of thousands of possession charges, and adjusting sentences for thousands of incarcerated or supervised persons.

An additional $50 million dollars was set aside to reimburse individuals who paid LFOs as a result of the Blake related convictions. AOC was appointed to lead the work, including establishing a Blake Refund Bureau to administer LFO refunds to impacted individuals.

The Blake Refund Bureau portal will be accessible to the public via a link on www.courts.wa.gov. The refund bureau will provide individuals who have had their Blake convictions vacated a self-navigable database to determine if they have refunds related to their convictions. Refund requests will be submitted through an online application. Once the application has been received and an amount of refund is confirmed by the court, a refund will be issued.

While the portal exclusively operates in the processing of LFO refunds, the site will include resources to guide individuals in clearing their convictions and seeking legal help.

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

Self-Harming Juror Removed From Deliberations

Assault, Bellingham Defense Attorney, Burglary, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Why Do People Self-Harm? | Lifeskills South Florida

In State v. Norman, the WA Supreme Court held that it was proper for a trial judge to dismiss a frustrated juror who engaged in self-harm during deliberations. The juror’s punching himself in the face raised legitimate concerns about his ability to deliberate.

FACTUAL BACKGROUND

Mr. Norman was tried before a jury on first degree burglary and second degree assault. The jury began deliberating at lunchtime. After only a few hours of deliberation, the jury pounded on the door and told court staff they were breaking for the evening. Over half of the jurors left the room before the court clerk arrived. The clerk discovered that during deliberations, juror 9 became overwhelmed and punched himself in the face. After several jurors expressed concern, the trial court questioned juror 9, who answered as follows:

“So yesterday, discussions became very heated, and . . . there were a number of people who had disagreements with me. This caused raising of voices, and I became . . . somewhat overwhelmed. I felt somewhat like—a little bit attacked, and I reacted with an emotional outburst of punching myself in the face. That has happened in the past when I get into high-stress situations. I have self-harmed in the past, but it hasn’t happened in a number of years. That being said, I still consider myself of sound mind and ability to continue going forward with this case.” ~Juror 9

The trial judge spoke to two other juros. They expressed concern over whether they could reach a verdict with juror 9. For example, juror 2 said she felt intimidated by juror 9’s actions. And according to juror 8, juror 9 was “in control of himself” for “80 percent of the day,.” Unfortunately, in the remaining time he “punched himself in the face a couple times and grabbed his hair” in reaction to contentious discussions.

The trial judge dismissed juror 9 for cause.

The reconstituted jury found Norman guilty of one of two counts. The Court of Appeals reversed Norman’s conviction, holding juror 9’s dismissal was improper under the heightened evidentiary standard set forth in State v. Elmore. On appeal, the WA Supreme Court decided the specific issue of whether the trial court abuse its discretion in dismissing juror 9.

COURT’S ANALYSIS & CONCLUSIONS

Justice Owens wrote the majority opinion. She began by saying trial judges have a continuous obligation to excuse a juror who has manifested unfitness. This can happen if a juror manifests bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service. This obligation implicates a defendant’s right to trial by an impartial jury and their right to a unanimous jury verdict.

Next, Justice Owens addressed how the Court of Appeals (COA) reversed Norman’s conviction.  In short, the COA held juror 9’s dismissal was improper under the evidentiary standard set forth in State v. Elmore. Justice Owens had some choice words:

“But the Elmore standard applies only where a juror is accused of nullification, refusing to follow the law, or refusing to deliberate. As there was no such accusation here, and the trial court found juror 9’s conduct likely affected the jury’s process of deliberating freely, it did not abuse its discretion in dismissing juror 9.” ~Justice Owens, WA Supreme Court

Consequently, the WA Supreme Court held that the trial court did not abuse its discretion in removing juror 9. His conduct could have impacted the jury’s ability to reach a unanimous verdict. The heightened evidentiary standard does not apply to juror 9’s dismissal because he was not accused of nullification, refusing to deliberate, or refusing to follow the law. With that, the WA Supreme Court reversed the Court of Appeals, and affirmed Norman’s 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.

WA Supreme Court on Accessing Justice During the Pandemic: “Our Work Isn’t Done.”

Bellingham Defense Attorney, Coronavirus, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , ,

COVID-19 and the Courts | RAND

In a press release, the Washington Courts describe the huge strides they’ve taken to keep courts accessible and safe during the pandemic. And in doing so, the judiciary learned a great deal about everyday challenges to equity and accessing justice for state residents. WA Supreme Court Chief Steven C. González addressed the matter in a joint session of the state Legislature.

“The pandemic made clearer than ever the inequities within our justice system, but by making them more visible, the pandemic also made them more addressable,” ~WA Supreme Court Chief Steven C. González.

The speech was broadcast live and recorded by TVW. A written State of the Judiciary report was released to lawmakers, judicial branch leaders and the public following the oral address.

González highlighted some key work and responses by the judicial branch to challenges and revelations:

  • Remote proceedings, now and future – Courts have broadly expanded remote proceedings to maintain safety during the pandemic, and in doing so learned a great deal about struggles to access courts. “Remote access has relieved the burden of travel for those unable to afford child care or to take off from work. It has allowed disabled people better, more inclusive access to justice,” Justice González said. Courts have launched remote and hybrid trials, have expanded electronic filing and use of electronic signatures, and have provided remote technology to litigants who did not have it. “Some of these pandemic necessities have become so effective, we will adopt rules to make them permanent. We’re in that process now.”
  • Racial disparities remain – The Board for Judicial Administration launched a Court Recovery Task Force to catalog pandemic revelations and adaptations and provide support and information. After the killing of George Floyd, the task force expanded its work to include examination of ongoing racial disparities in the justice system. Its final report is titled, “Re-Imagining Our Courts.” Powerful data on disparities in the justice system were also detailed in reports by The Race and Justice Task Force and the Gender and Justice Commission. “This hard data reinforces what many know from their own lived experiences, but these reports give us tangible, actionable data that we can point to as we push for improvements.”
  • Making progress – González highlighted expanded access to court interpreters enabled by the legislature, expanded use of therapeutic courts across the state which have proven successful in addressing underlying causes of criminal activity, new communication channels between state branches of government such as the new Interbranch Advisory Committee, and ongoing efforts such a Washington state court rule addressing both explicit and implicit bias in jury selection – the first in the nation to do so, and now a national model.
  • Immediate challenges – In addition to other ongoing issues, González pointed to significant concerns involving court fines and fees being used to fund so much of court operations, particularly technology system, and court security risks. “All too much of the funding for our IT systems come from district and municipal court fees and fines,” he said, which criminalize poverty. “These are disparately imposed on the poorest and most marginalized communities. This needs to change. It’s the right thing to do.” Maintaining secure, safe courts is also an issue affecting access to justice and the functions of a democratic society, he said, and court security concerns and incidents have been growing.

“We’ve travelled far along the road to justice, and we still have more to go . . . We need your help to continue that progress. I look forward to working with all of you to fulfill the great promise of our  nation of equal justice for all.” ~WA Supreme Court Chief Steven C. González.

My opinion? The COVID-19 pandemic has further exposed and exacerbated inequities in our justice system. Our courts and legal service providers have been forced to curtail in-person operations. This has occurred often without the resources or technology to offer remote-access or other safe alternatives. Fortunately, our courts have takes impressive strides forward and effectively pivoted under the circumstances.

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.

Cross-Racial Identification

Assault, Bellingham Defense Attorney, Cross-Racial Identification, Jury Instructions, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Frontiers | The Own-Race Bias for Face Recognition in a Multiracial Society

In State v. Butler, the WA Supreme Court upheld a defendant’s conviction for assault and held there was insufficient evidence supporting a jury instruction for false cross-racial identification.

FACTUAL BACKGROUND

Mr. Butler, a Black man, was convicted of assaulting two security officers in separate incidents at two Seattle light rail stations. Both assaults were caught on camera and the assailant appeared to be the same person in both. One of the victims, who appears to be white, identified Butler as his assailant at trial. The victim had not made an out-of-court identification. The victim did not identify Butler until the CrR 3.5 hearing and then at trial.

Naturally, the primary issue at trial was the identity of the assailant. The State sought to prove Butler was the person in the videos. The State argued that Butler was of the same build and race as the assailant. He also wore the same clothes and carried the same items—including the same shoes, skateboard, and backpack.

Butler asked the trial court to instruct the jury according to the pattern jury instruction on eyewitness identifications. It includes optional bracketed language that the jury may consider the witness’s familiarity or lack of familiarity with people of the perceived race or ethnicity of the perpetrator of the act.  The trial court agreed to give the pattern jury instruction, but declined to include that optional language. Mr. Butler was found guilty at trial.

On appeal, Butler argued that the trial court denied his right to present a defense by failing to give the cross-racial identification portion of the pattern instruction. The Court of Appeals concluded that the trial court did not abuse its discretion because there was insufficient evidence supporting the instruction, and it upheld Butler’s conviction. The WA Supreme Court addressed the issue and granted review.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court acknowledges racial bias is pervasive in our society.  However, it declined the chance to adopt a model jury instruction on cross-racial eyewitness identifications or to require that instruction be given whenever the defendant requests it. The Court’s review was strictly limited to considering whether the optional language on cross-racial identification should have been given.

Although Butler argued for a violation of his Due Process right to present a defense, S.Ct. concludes Butler was able to attack AV’s credibility and pursue his defense on the unreliability of the identification with the instructions that were given.

There was no abuse of discretion in denying the requested language in the instruction because the court reasonably concluded there was not sufficient evidence in the record supporting such a jury instruction.

“We leave for another day broader questions about what steps courts should take to mitigate the significant risk that eyewitness identifications are unreliable in the cross-racial context.” ~WA Supreme Court.

CONCURRING OPINIONS – CHIEF JUSTICE STEVEN GONZALEZ & JUSTICE MARY YU

Chief Justice Steven Gonzalez wrote a separate concurring opinion. He reluctantly concurred only because Butler did not lay a foundation for the instruction he requested. However, Justice Gonzalez also took the opportunity to offer a deeper perspective on the negative impacts of improper identification of defendants.

“Mistaken eyewitness identifications have resulted in many innocent people being wrongfully convicted in our nation . . . The particular weaknesses of cross-racial identifications have been well known and well documented for decades.” ~WA Supreme Court Chief Justice Steven Gonzalez

Justice Gonzalez urged our Washington Pattern Jury Instructions Committee to craft an instruction that reflects what we have learned about the weaknesses of cross-racial identification.

Justice Mary Yu also wrote a concurring separate opinion. Similar to Justice Gonzalez, she recommended that Washington adopt an instruction that fully and accurately reflects the proven weaknesses of cross-racial identification.

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

Exhaust Your Peremptory Challenges

Bellingham Defense Attorney, Jury Selection, Mount Vernon Criminal Defense Attorney, Peremptory Challenge, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense

In State v. Talbott, the WA Supreme Court held that at trial, a defendant may not appeal the seating of a juror if the defendant could have struck that juror with a peremptory challenge. 

FACTUAL BACKGROUND

In 2018, Mr. Talbott was arrested and charged with two counts of aggravated first degree murder that occurred in 1987. The victims – Jay Cook and his girlfriend Tanya Van Cuylenborg – were a couple visiting from Canada. Their bodies were found in Snohomish County and Skagit County, respectively. Van Cuylenborg’s body displayed evidence of sexual assault. Despite a multicounty law enforcement effort to solve the murders, no arrests were made. It was not until 30 years later that law enforcement, with the assistance of a genealogist, identified Mr. Talbott as the source for DNA that was collected in 1987.

Jury Selection At Trial

During voir dire, Talbott moved to excuse juror 40 on a challenge for cause. A challenge for cause is a request to disqualify a potential juror for specific reasons. Typical reasons include an acquaintanceship with either of the parties. It also includes a juror’s prior knowledge that would prevent impartial evaluation of the evidence presented in court, bias, prejudice, or an inability to serve (such as being seriously mentally ill)

The judge denied the defendant’s motion to challenge juror 40 for cause. At the end of voir dire, the court provided both parties the opportunity to raise any additional for-cause challenges. However, both parties – the State and Defense Counsel – declined.

The parties then exercised peremptory challenges. This is one of a limited number of special jury challenges given to each party before trial.  A peremptory challenge results in the exclusion of a potential juror without the need for any reason or explanation – unless the opposing party presents a prima facie argument that this challenge was used to discriminate on the basis of race, ethnicity, or sex.

After the State exercised its first peremptory challenge, juror 40 moved into the jury box. Talbott never attempted to use a peremptory challenge to remove juror 40. He affirmatively accepted the panel after exercising only four of his six peremptory challenges. Talbott had at least two additional peremptory challenges that he did not use on any prospective juror. Thus, Talbott explicitly agreed to be tried by a jury that included juror 40.

Talbott was convicted and sentenced to two consecutive terms of life in prison without the possibility of parole. He appealed, contending, among other things, that the seating of juror 40 violated his right to a fair trial by an impartial jury.

COURT’S ANALYSIS & CONCLUSIONS

WA Supreme Court Justice Mary Yu wrote the Court’s majority opinion, which was agreed  to unanimously by the other justices.

Justice Yu began opined that criminal defendants have the constitutional right to a fair and impartial jury. However, the burden of preventing trial errors rests squarely upon counsel for both sides. State v. Farley. Therefore, even defense counsel in a criminal case must attempt to correct errors at trial, rather than saving them for appeal in case the verdict goes against them.

Next, the Court raised and dismissed Talbott’s legal arguments regarding peremptory challenges and long history of precedent cases on the issue. First, the Court rejected Talbott’s argument that State v. Clark should have been rejected in light of State v. Fire.

“He is incorrect,” wrote the Court. “Fire did not overrule Clark. The two cases address different scenarios because the appellant in Fire exhausted their peremptory challenges and the appellant in Clark did not.” Moreover, the Court wrote that the holdings of Clark and Fire were consistent with each other. It is only in dicta that the opinions seem to contradict one another. “It is this dicta in Fire that has created some confusion and uncertainty in this area of the law,” said Justice Yu.

“Thus, we take this opportunity to clarify that a party who does not exhaust their peremptory challenges and accepts the jury panel cannot appeal the seating of
a particular juror.” ~Justice Mary Yu, WA Supreme Court

My opinion? Justice Yu issued a straightforward and academic ruling. A party may not appeal the seating of a juror if the party could have struck that juror with a preemptory challenge.  Parties are obliged to use their preemptory challenges to strike jurors they unsuccessfully moved to excuse for cause.  Finally, it appears that a party may only appeal the jury’s composition if the party exhausted their preemptory challenges.

The take-away? Exercise your peremptory challenges at trial.

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.

Conviction Reversed Because Prosecutor Failed to Give Race-Neutral Reasons for Striking Jurors.

Bellingham Defense Attorney, GR 37, Jury Selection, Mount Vernon Criminal Defense Attorney, Race & Law, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

The Evolving Debate Over Batson's Procedures for Peremptory Challenges - National Association of Attorneys General

In State v. Tesfasilasye, the WA Supreme Court reversed a sex offense conviction under GR 37 because the prosecutor failed to give race-neutral reasons for striking two minority jurors.

A brief explanation of GR 37 is necessary. When the WA Supreme Court adopted GR 37 in 2018, it became the first court in the nation to adopt a court rule aimed at eliminating both implicit and intentional racial bias in jury selection. The rule expanded the prohibition against using race based peremptory challenges during jury selection. Not only was intentional race discrimination outlawed, but also challenges based on “implicit, institutional, and unconscious” race and ethnic biases were rejected.

FACTUAL BACKGROUND

The defendant Mr. Tesfasilasye is a Black Eritrean immigrant whose primary language is Tigrigna. Tesfasilasye worked for Solid Ground as a driver for people with disabilities. C.R.R. used Solid Ground’s services. The alleged victim, C.R.R. is visually impaired. She sometimes uses a wheelchair due to balance issues.

The day after Tesfasilasye drove C.R.R. home, C.R.R. reported that Mr. Tesfasilasye assaulted her the day before. The State charged Tesfasilasye with third degree rape. During voir dire, the State brought peremptory challenges against Juror #25, an Asian woman, and Juror #3, a Latino.

The State sought to use a peremptory strike against Juror #25, an Asian woman. Tesfasilasye raised a GR 37 objection. The State denied it was striking Juror #25 because she was an Asian woman. The State called the court’s attention to the fact it was not seeking to strike the other Asian woman in the panel. Instead, the State contended it wanted to strike Juror# 25. The trial court overruled the GR 37 objection and granted the peremptory challenge.

Next, the State sought a peremptory challenge against Juror #3, the Latino. The court granted the peremptory challenge. However, the trial judge’s oral ruling was not based on
whether a reasonable juror could view race as a factor as required by GR 37.

The jury found Tesfasilasye guilty of third degree rape. Tesfasilasye appealed. He alleged that an objective observer could have viewed race as a factor for striking Juror #25 and Juror #3 as prohibited by GR 37. The Court of Appeals affirmed Tesfasilasye’s conviction. The WA Supreme Court granted review.

COURT’S ANALYSIS & CONCLUSIONS

“Our constitutions require a fair and impartial jury,” wrote Justice Gonzalez. “The parties and the jurors themselves have the right to a trial process free from discrimination.” Next, Justice Gonzalez discussed the nefarious use of peremptory challenges to strike qualified jurors without providing a reason. “These challenges however have a history of being used based largely or entirely on racial stereotypes or generalizations,” he said.

Justice Gonzalez explained how GR 37 was an attempt to address the shortcomings of Batson v. Kentucky. Batson was a landmark case prohibiting the use of peremptory challenges to automatically exclude potential members of the jury because of their race. “The protections under Batson were not robust enough to effectively combat racial discrimination during jury selection,” said Justice Gonzalez. In short, Batson failed to require a trial judge to make rulings without considering systemic and unconscious racial bias.

Justice Gonzalez explained that under GR 37, a peremptory challenge shall be denied if an objective observer could view race or ethnicity as a factor in the use of a peremptory challenge. He described at great length why both Juror #25 and Juror #3 were wrongfully struck by the State and concluded as follows:

“We hold that under these facts, an objective observer could view race as a factor for striking both Juror #25 and Juror #3. Tesfasilasye asks this court to reverse his conviction. The State does not dispute that the remedy for a GR 37 violation is reversal. Accordingly, we reverse the Court of Appeals and remand for a new trial.” Chief Justice Steven Gonzalez, WA Supreme Court.

My opinion? Good decision. The State has another opportunity for trial. Next time, let’s  hope they avoids striking jurors for race-based reasons.

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.

 

Washington Supreme Court Will Address How to Reduce Racial Disparities & Reform Juvenile Justice

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , ,

Bias in Criminal Justice - Common Reading Research Guide 2020-21 - LibGuides at Elon University

According to a press release, on July 13, 2022, a task force will present recommendations to the Washington Supreme Court on reducing and, where possible, eliminating racial disparities in Washington’s criminal and juvenile justice systems. The public presentation is scheduled for 10:30  AM – 12:00 PM, and will be livestreamed and recorded by TVW.

The recommendations come from a work group of Task Force 2.0: Race and Washington’s Criminal Justice System, a project coordinated by the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law. Presenters will include Korematsu Center Executive Director Professor Bob Chang, Assistant Directors Jessica Levin and Melissa Lee, public defense attorneys, child welfare experts, Pierce County Superior Court Judge André M. Peñalver, and more.

Task Force 2.0 last year presented extensive research to the Supreme Court detailing racially disproportionate treatment and outcomes in the state’s criminal justice system, outcomes significantly impacted by historically racist laws and practices. The follow-up presentation provides recommendations in 14 areas – such as policing and traffic stops, prosecutorial decision-making, pre-trial release, sentencing and prison, community supervision, legal financial obligations and more – as well as recommendations for reforming the juvenile justice system from a special sub-committee.

The Task Force was launched in mid-2020 by the deans of Washington’s three law schools following the death of George Floyd, nationwide protests for racial justice, and the June 4, 2020 Open Letter of the justices of the Washington Supreme Court challenging members of the state judiciary and legal community to recognize racial injustice and take steps to eliminate it.

The Task Force is dubbed “2.0” because it is a re-launch of the Race and Justice Task Force established in 2010 following comments made by two then-sitting Washington Supreme Court justices about criminality and race. That first task force produced a report in 2011 with data that has guided a number of efforts since then, including an annual symposium presented by the Washington State Minority and Justice Commission focusing on specific issues of racial disparity.

My opinion? We’ve GOT to be proud of our WA Supreme Court for being so proactive in resolving racial disparities in the justice system.

The rise of mass incarceration may seem like a recent phenomenon, but it is a repeating pattern throughout this country’s history. From America’s founding to the present, there are stories of crime waves or criminal behavior followed by patterns of disproportionate imprisonment of those forced to the margins of society: Black people, immigrants, Native Americans, refugees, and others.

The result has been the persistent and disproportionate impact of incarceration on people of color, immigrants, and people experiencing poverty. From 1850 to 1940, racial and ethnic minorities—including foreign-born and non-English speaking European immigrants—made up 40 to 50 percent of the prison population. In 2015, about 55 percent of people imprisoned in federal or state prisons were Black or Latino.

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.