Category Archives: Washington Supreme Court

State v. Saintcalle: The WA Supreme Court’s Recent Ruling on Race Discrimination in Our Criminal Justice System

Constitutional Rights, Homicide & Manslaughter, Race & Law, Washington Supreme Court, , ,

That a man was tried six times for the same crime is remarkable enough.

In State v. Saintcalle, the WA Supreme Court addressed an interesting case regarding peremptory strikes against potential black jurors.

The defendant Kirk Saintcalle, a black man, was charged with Felony Murder in the First Degree. At trial, the State’s prosecutor used a peremptory challenge to strike the only black person in the jury pool. He was found guilty by a jury. On appeal, Saintcalle claimed the strike was racially motivated in violation of the U.S. Supreme Court’s Batson v. Kentucky, 476 U.S. 79 (1986).

The WA Supreme Court disagreed and agreed with Saintcalle. They disagreed with Saintcalle to the extent that the Prosecutor’s peremptory striking of the only African-American juror in this case did not give rise to a Batson violation. However, the majority agreed that Washington’s Batson procedures were not strong enough to effectively combat race discrimination in the selection of juries.

Justice Wiggins also stated our Batson procedures must change so as to deal with unconscious, institutional, or unintentional racism, however, “[T]his is not the case in which to announce a new standard.” Saintcalle’s conviction was upheld.

Chief Justice Madsen’s concurrence, which was signed by Justice Jim Johnson, also expressed her concern about racial discrimination during jury selection. She would not adjust Batson or do away with peremptory challenges in an attempt to address nonpurposeful discrimination based on race during jury selection. Chief Justice Madsen also took issue with Justice Wiggins’ charts and graphs that compared the prosecutor’s questioning of the African-American juror to the prosecutor’s questioning of other jurors.

Justice Stephens’ concurrence, which was signed by Justices Fairhurst and Charles Johnson, “sound[s] a note of restraint amidst the enthusiasm to craft a new solution to the problem of the discriminatory use of peremptory challenges during jury selection.”

Justice González’s concurrence calls for the immediate abolishment of peremptory challenges.

Justice Chambers dissented.

My opinion? I’ve heard that getting attorneys to agree to something – and judges, for that matter – is akin to trying to herd cats. Clearly, State v. Saintcalle  captures the “herding cats” imagery. The smattering of different opinions by our justices captures the complexity of racism in our judicial system. Some see it.  Some don’t. Others call it something else.

Although I’m saddened the WA Supremes passed on an opportunity to capture a racist act and make an example of it, I’m happy they said Washington needs to have stronger procedures and standards in place to stop these situations from happening again. Perhaps jury pools should intentionally include more minority jurors. Who knows? The solution, it seems, is potentially as multi-layered as the problem itself.

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.

Can My Boss Fire Me For Smoking Marijuana?

marijuana, Washington Supreme Court, , ,

Marijuana and the workplace | Canadian Lawyer

Yes. Numerous clients have asked me that very question since the passage of I-502.

Under this law, citizens may possess and use small amounts of marijuana. Can employers terminate employment? Yes.  Employers may choose to not hire potential employees who use marijuana. Under Roe v. Teletech, 171 Wn.2d 736 (2011), the Washington Supreme Court recently ruled that even though medical marijuana use is legal, employers may still terminate employees for using it.

Employers are free to treat marijuana as alcohol. In other words, employees must NOT be under the influence while in the workplace, driving vehicles, or while performing tasks for their employer.

My opinion? More than ever, it’s important to consult an attorney experienced with these matters if you’re facing criminal charges and trying to protect your job. A conviction for possession of marijuana – and possibly Drug DUI – can get you fired. Reducing and/or dismissing marijuana-related charges is your safest option.

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.

State v. Grier: Ineffective Assistance of Counsel

Burglary, Ineffective Assistance, Jury Trial, Uncategorized, Washington Supreme Court, , ,

What Does Ineffective Assistance of Counsel Mean? - NJ Crimmigration

Interesting.

In State v. Grier, WA Supremes held that a defense attorney’s “all or nothing” approach, in which “lesser included” jury instructions were rejected, was a legitimate trial tactic and did not constitute ineffective assistance of counsel (IAC) under the state or federal constitutions. Trial courts are not required to provide lesser included instructions in the absence of a request for such instructions.

Defendant Kristina Grier was charged with Murder in the Second Degree following a fight she had with the victim Gregory Owen.  earlier, they were drinking with a group of people at Grier’s home.  Owen was alleged to have stolen several items from Grier, during the course of the evening.  Some of these items included three guns.  Grier and her son confronted Owen.  A fight broke out.  Unfortunately, a gun went off, killing Owen.

At trial, Grier’s defense attorney withdrew his earlier request for a jury instruction on the lesser offense of Assault.  As a result, the jury was not instructed on those offenses.  The jury convicted Grier of murder.  The case went up for appeal on the issue of whether Grier’s defense attorney was ineffective.  The Court of Appeals reversed Grier’s conviction.  They believed Grier’s attorney was ineffective because he failed to request instructions on the lesser included offenses.

For those unfamiliar with criminal law practice, a “lesser included” offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

The WA Supremes ruled Grier’s attorney’s decision to withdraw the lesser included offense instructions did not prevent her from raising an ineffective assistance claim.  The court also held that defense counsel’s “all or nothing” approach was a legitimate trial tactic and was not IAC.  The court vacated the Court of Appeals decision.

My opinion?  Interesting decision.  It’s difficult to play “Monday Morning Quarterback” and call a defense attorney’s trial tactics ineffective simply because the defendant lost at trial.  What if the defense attorney wanted the jury instruction and Grier was convicted?  Would she appeal the case anyway, and call her attorney ineffective because she was convicted on the lesser charge?  Good decision, WA Supremes.

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.

State v. Schultz: Warrantless Search of Home

911 Call, Constitutional Rights, Domestic Violence, Drug Offenses, Exigent Circumstances, felony, Knock & Talk, law enforcement, marijuana, Methamphetamine, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

Vindictive Police: 6 Detectives Search Yehuda Glick's Home following Temple Mount Arrest | The Jewish Press - JewishPress.com | David Israel | 24 Shevat 5780 – February 19, 2020 | JewishPress.com

Excellent opinion. In State v. Schulz, the WA Supreme Court held that the Exigent Circumstances exception to the Search Warrant requirement was inapplicable when police unlawfully searched the Defendant’s home.

BACKGROUND FACTS

Officers received a 911 call about a couple was yelling inside their apartment.  Officers drove to the scene.  The woman, Ms. Schultz, consented to the officer’s request to enter the apartment.  Officers found a marijuana pipe.  Upon their find, they also conducted a more intrusive – and warrantless – search of the apartment.  Methamphetamine was found. Ms. Schultz was charged with Possession of Methamphetamine.

COURT’S REASONING AND CONCLUSIONS

The WA Supremes reasoned the test for an emergency aid exception (also called Exigent Circumstances) entry has been expanded to include the following elements: (1) The police officer subjectively believed that someone likely needed assistance for health or safety concerns; (2) a reasonable person in the same situation would similarly believe that there was need for assistance; (3) there was a reasonable basis to associate the need for assistance with the place being searched; (4) there is an imminent threat of substantial injury to persons or property; (5) state agents must believe a specific person or persons or property are in need of immediate help for health or safety reasons; and (6) the claimed emergency is not a mere pretext for an evidentiary search.

They further reasoned that here, the mere acquiescence to an officer’s entry is not consent to search.  It is also not an exception to our state’s constitutional protection of the privacy of the home. Finally, while the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, the warrantless entry in this case was unnecessary.  Officers merely heard raised voices from outside the home.  The agitated and flustered woman who answered the door indicated that no one else was present in the home.  No emergency existed.

My opinion?  Good decision.  Granting a police officer’s request to enter the home is not, by itself, consent to search the home.  Period.

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.

State v. Irby: Jury Selection Gone Wrong

Constitutional Rights, felony, Homicide & Manslaughter, Jury Trial, Washington Court of Appeals, Washington Supreme Court, , ,

How to weed out bad jurors during jury selection

Very interesting case. In State v. Irby, the WA Supreme Court held that a defendant’s right to be present during jury selection was violated when the trial judge emailed the attorneys and said he was inclined to release ten prospective jurors for hardship.

The defendant, Terrance Irby, was charged with first degree murder.  During jury selection, several members of the jury were disqualified by the judge and attorneys through email exchanges.  The communications occurred without the defendant being present.  Consequently, the Court of Appeals overturned Irby’s conviction.

The WA Supremes reasoned,  “In criminal prosecutions the accused shall have the right to appear and defend person, or by counsel”   under the due process clause of 14th Amendment of the U.S. Constitution and article I, section 22 of the WA Constitution.  Here, the State failed to show beyond a reasonable doubt that the removal of several potential jurors in Irby’s absence had no effect on the verdict.

My opinion?  Good decision.  The rule is clear as day.  Perhaps one of the jurors who was struck via email would have found Irby not guilty.  We’ll never know.  At any rate, Mr. Irby’s rights were clearly violated.

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.

State v. Hirschfelder: Sexual Relations Between a Student and a School Employee

Rape, Sex Crimes, Washington Supreme Court, , ,

Utah and Salt Lake City Statutory Rape Defense Attorney | Greg S. Law

In State v. Hirschfelder, the WA Supreme Court held that the term “minor” includes students between the ages of 18 and 21, rather than just those under 18.

Here, defendant Mr. Hirschfelder was  employed as a choir  teacher at a High School.  He had sexual intercourse in his office with a member of the high school choir, A.N.T., several days prior to her graduation in 2006.   At the time, Hirschfelder was 33 and A.N.T. was 18.  Hirschfelder was charged with sexual misconduct with a minor in the first degree under former RCW 9A.44.093(1)(b).   That statute provided in relevant part:

A person is guilty of sexual misconduct with a minor in the first degree when:  . . . the person is a school employee who has, or knowingly causes another person under the age of eighteen to have, sexual intercourse with a registered student of the school who is at least sixteen years old and not married to the employee, if the employee is at least sixty months older than the student.

The case made its way to the WA Supremes.  They reasoned the statute was not ambiguous in its meaning.  They also stated that several sexual misconduct  laws focus on the special  relationship between a perpetrator and a victim, even where the victim is over 18 or even 21.

“For example, we criminalize sex with vulnerable adults or adults over whom the perpetrator has supervisory authority, RCW 9A.44.050, and sex between employees of custodial institutions and those in custody.  RCW 9A.44.160.   That the legislature saw fit to criminalize sex between school employees and high school students — even those who reach the age of majority while registered as students — is a policy choice that recognizes the special position of trust and authority teachers hold over their students.” ~WA Supreme Court

Justice Johnson, is his dissenting opinion, stated the statute “should not criminalize conduct between two consenting adults where the legislature has expressly provided otherwise.”  He also stated the former statute did not criminalize sexual intercourse between a school employee and an 18-year-old adult student.

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.

State v. Garcia-Salgado: DNA Swab is Unlawful if State Lacks Warrant Supported By Probable Cause

Constitutional Rights, DNA, felony, Jail, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

My Rights When Police Want my DNA in a Sex Assault Case | Berry Law

In State v. Garcia, the WA Supreme Court held that collecting a DNA swab from a defendant was unlawful search because it was made without a warrant and without probable cause based on oath or affirmation.

Petitioner Alejandro Garcia-Salgado was convicted of a Sex Offense in King County Superior Court after the results of his D.N.A. test linked him to the victim, and were were admitted into evidence during his trial.  He appealed his conviction, saying that the State lacked probable cause to test his D.N.A. and that conducting the test without his consent pursuant to a court order violated his constitutional rights.

The Washington Court of Appeals affirmed Garcia-Salgado’s conviction, holding that sufficient evidence existed in the record to establish probable cause for a test of Garcia-Salgado’s D.N.A.  Garcia-Salgado appealed this decision to the Supreme Court of Washington.

The WA Supreme Court reasoned that a cheek swab for DNA is indeed a search that intrudes into the body.  A search that intrudes into the body may be made  pursuant  to  an order entered under  CrR 4.7(b)(2)(vi) if (1) the order is supported by probable case based on oath or affirmation, (2) is entered by a neutral and detached magistrate, (3) describes the place to be searched and the thing to be seized, and (4) if there is a clear indication that the desired evidence will be found, the test is reasonable, and the test is performed in a  reasonable manner.

Here, the WA Supremes decided the trial court errored in procuring the DNA swab because the State lacked a warrant supported by probable cause.  “Consequently, this court cannot say that there was probable cause to search Garcia-Salgado’s DNA.  We reverse the Court of Appeals and remand.”

My opinion?  Heinous as the crime was, the WA Supremes decided correctly.  Defendants have rights, plain and simple.  The criminal justice system must conduct investigations in accordance with these rights.  If the process is short-cutted or made sloppy, then convictions cannot stand.  Here, the State failed to get a warrant for the DNA swab.  Consequently, they should not be allowed to present the DNA evidence at trial.  Good opinion.

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.

Child Witness Competency

Child Competence, Constitutional Rights, felony, Jury Trial, Pretrial Investigations, Rape, Sex Crimes, Washington Supreme Court, , ,

Children Witnesses in the Criminal Courts: Recognizing Competence and Assessing Credibility

In State v. S.J.W., the WA Supreme Court held that a party challenging the competency of a child witness must show that the child is of unsound mind, intoxicated at the time of his production for examination, incapable of receiving just impressions of the facts, or incapable of relating facts truly.

S.J.W., a minor, was charged with a sex offense against a 14-year-old W.M., a developmentally delayed boy.  The State wanted W.M. to testify against S.J.W., and S.J.W. challenged W.M.’s competency to testify.  At the competency hearing, the trial judge concluded S.J.W. failed to meet his burden to establish that W.M. was not competent to testify.  The trial judge permitted W.M. to testify at the bench trial, and S.J.W. was convicted.

S.J.W. appealed.  The Court of Appeals affirmed S.J.W.’s conviction but held  that the party offering a child witness bears the burden to show the witness is competent to testify.  The Court of Appeals concluded that, although the trial judge erroneously placed that burden on S.J.W., this error was harmless.  The State challenges this holding, arguing that the trial judge properly placed the burden on S.J.W.  The WA Supremes agreed.

The WA Supremes reasoned that until 1986, former RCW 5.60.050 provided that all persons of suitable age could be witnesses except those of unsound mind, those who were intoxicated at the time of examination, and children under 10 who appeared incapable of receiving just impressions of the facts or of relating them truly.  State v. Allen, however, changed the notion.

The court in Allen concluded that the true test of the competency of a “young child” of “tender years” consists of (1) an understanding of the obligation to tell the truth, (2) the mental capacity at the time of the occurrence concerning the testimony, (3) sufficient memory to retain an independent recollection of the occurrence, (4) the capacity to express in words her memory of the occurrence, and (5) the capacity to understand simple questions about the occurrence.

In other words, all persons, regardless of age, are now subject to this rule because there is no longer any requirement that a witness be of suitable age or any suggestion that children under 10 may not be suitable witnesses.  A child’s competency is now determined by the trial judge within the framework of RCW 5.60.050, while the Allen factors serve to inform the judge’s determination.

My opinion?  I prefer having the 10-year old “cutoff age” when it comes to child testimony.  All to often, children are coached by biased adults.  I’ve conducted enough jury trials to know that children usually repeat whatever the trusted adult wants them to say.  Unfortunately, this court decision places an extra burden on attorneys – defense attorneys, undoubtedly – to show the respective child witness is incompetent to testify.

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.

City of Aberdeen v. Regan: When Unfound Accusations Violate Probation

Assault, Jury Trial, misdemeanor, Probation, Washington Supreme Court, , ,

Fighting a Probation Violation Allegation | Miami Criminal Lawyer

In City of Aberdeen v. Regan, the WA Supreme Court held that a defendant’s probation conditioned on having “no criminal violations of law or alcohol related infractions,” was properly revoked after the defendant was accused, but found not guilty, of fourth degree assault and criminal trespass.

In this case, Regan was convicted of fourth degree assault in Aberdeen Municipal Court and sentenced to 365 days in jail.  The court suspended 360 days of Regan’s sentence, issued 5 days jail,  and placed him on probation for 24 months.  The court conditioned Regan’s probation on his having “no criminal violations of law or alcohol related infractions.”

However, while on probation, Regan was charged with fourth degree assault and criminal trespass.  Regan was acquitted at a trial.  However, the city moved to revoke the suspension of his sentence asserting that he violated the condition of his probation.  Regan argued that the municipal court was collaterally estopped from finding he violated his probation condition in light of the not guilty verdict at trial.  The municipal court disagreed and issued 5 days of jail based on the criminal trespass charge.  Although the Superior Court found in Regan’s favor, the Court of Appeals reversed.

Some background is necessary.  Under WA law, in order to revoke probation, the judge need only be “reasonably satisfied” that the defendant committed the assault and/or the criminal trespass.  The defendant is not entitled to make the City/State prove allegations beyond a reasonable doubt.

Here, the WA Supremes reasoned that acquittal on criminal charges stops does not stop (or, more specifically, collaterally estop) a court from revoking parole for the same conduct.  The Court looked at the plain language of Regan’s probation conditions and flatly decided the conditions prohibited him from engaging in conduct that is proscribed by the criminal law.  “In no way do the definitions of “violate” or “violation” imply a proof or procedural requirement.”  Therefore, when a court conditions the suspension of a sentence on a probationer not violating the law, the context does not imply that a conviction is required.

My opinion? It’s really disturbing when judges revoke a defendant’s probation when s/he obtains criminal charges that haven’t been proven guilty in a court of law.  I’ve never understood that.  It’s a major flaw of the criminal justice system.

It seems more fair that someone who has invested the time and expense of fulfilling their probation requirements – meeting with probation officers, obtaining evaluations, making court payments, obtaining treatment, etc. – falls in danger of getting kicked off probation if police and/or prosecutors file B.S. charges that have not been proven in a court of law under the reasonable doubt standard.

Despite WA law, I believe that criminal charges must be proven in order to revoke a defendant’s probation.  The status quo simply gives the police and prosecutors too much power.

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.

State v. Doughty: WA Supremes Limit Scope of Terry Stops

Constitutional Rights, Drug Offenses, felony, Jail, Jury Trial, law enforcement, Methamphetamine, misdemeanor, police, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Supreme Court, , ,

terry stop | Nevada Public Radio

In State v. Doughty, the WA Supreme Court held that a person’s two-minute visit to a suspected drug house at 3:20 in the morning is insufficient grounds for an investigative seizure.

Late one night, defendant Walter Moses Doughty approached a suspected drug house, stayed for two minutes, then drove away.  A police officer who observed Doughty’s approach and departure stopped Doughty on suspicion of drug activity.  This is typically called a Terry stop under Terry v. Ohio.

During this investigative seizure the officer ran a records check and, based on the results, arrested Doughty for driving with a suspended license.  Police found methamphetamine during a vehicle search incident to arrest.  At trial, he was convicted of Possession of Methamphetamine. The Court of Appeals confirmed the conviction.  The case ended up with the WA Supremes.

Some explanation of a Terry stop is necessary.  In justifying the particular intrusion/investigation, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.  When reviewing the merits of an investigatory stop, a court must evaluate the totality of circumstances presented to the investigating officer.  The State must show by clear and convincing evidence that the stop was justified.

Under this analysis, the WA Supremes reasoned that a person’s presence in a high-crime area at a “late hour” does not, by itself, give rise to a reasonable suspicion to detain that person.  Similarly, a person’s “mere proximity to others independently suspected of criminal activity does not justify the stop.”

Although the State argued the circumstances warranted the search, the court reasoned that Police may not seize a person who visits a location — even a suspected drug house — merely because the person was there at 3:20 a.m. for only two minutes.  “The Terry-stop threshold was created to stop police from this very brand of interference with people’s everyday lives.”  Additionally, the United States Supreme Court embraced the Terry rule to stop police from acting on mere hunches.

Finally, the Court reasoned that Officer Bishop relied only on his own incomplete observations.  There was no informant’s tip and no furtive movement.  Bishop merely saw Doughty approach and leave a suspected drug house at 3:20 a.m.  Bishop had no idea what, if anything, Doughty did at the house.  Accordingly, these circumstances does not warrant intrusion into Doughty’s private affairs.

The WA Supremes reversed the Court of Appeals, suppress the evidence against Doughty, and vacated his conviction.

My opinion?  GREAT decision.  It’s always nice when our esteemed judges follow the law in undramatic fashion.  Clearly, the stop was unlawful and the evidence should have been suppressed by the trial court and court of Appeals. 🙂

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.