Category Archives: Whatcom County Criminal Defense

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.

Should Prison Inmates Get Minimum Wage for Prison Jobs?

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Sell Block: The empty promises of prison labor

Excellent article by Journalist Drew Mikkelsen reports that WA State Representative Tarra Simmons wants to start paying inmates minimum wage for prison jobs.

According to the Department of Corrections (DOC), 1,600 offenders currently work in-custody jobs. They pay between 65 cents to $2.70 per hour. Inmates are paid to work in prison kitchens, they build office furniture and assemble eyeglasses.

DOC spokesperson Chris Wright said those are “one of the top hourly rates in the country.”

“This is an evolution of slavery,” said state Representative Tarra Simmons, D-Bremerton. Simmons is believed to be the first person convicted of a felony to get elected to serve in Olympia. She served a 30-month prison sentence for drug and theft charges. She worked in the kitchen, laundry room, and as a custodian. “When I was incarcerated I was paid 42 cents an hour,” said Simmons. Her proposal would place half of an inmate’s earnings into an account that could not be accessed until the inmate’s release.

“If people can leave with enough money to have transportation, for housing, clothing, food and potentially some job training, hopefully they will have a better chance at not coming back,” ~Tarra Simmons, D-Bremerton

Simmons said the issue will come up for debate in the upcoming legislative session, which starts in January.

Mrs. Simmons is quite remarkable. She’s a politician, convicted felon, lawyer, and civil rights activist for criminal justice reform. In 2011 Simmons was sentenced to 30 months in prison for theft and drug crimes. In 2017, she graduated from Seattle University School of Law with honors. After law school, she was not allowed to sit for the Washington State bar exam due to her status as a former convicted felon.

Consequently, she challenged the Washington State Bar Association rules in the Washington State Supreme Court and won with the court unanimously ruling in her favor. She was later sworn in as an attorney in the State of Washington on June 16, 2018. Simmons is the executive director for a nonprofit focused on assisting those that are formerly incarcerated, known as the Civil Survival Project

Republican Sen. Phil Fortunato, R-Auburn, said the inmates are enough of a tax burden on the state:

“To me, it doesn’t make much sense . . . There’s no end to what we can do with other people’s money.” ~Republican Sen. Phil Fortunato, R-Auburn

Mt opinion? Prison is big business. The state of Washington saves millions by paying inmates pennies per hour for work done behind bars.Billions of dollars in revenue are generated by both the private prison industry and the labor of individuals who are incarcerated. From desks to textiles, a complex web of manufacturing is produced each day in New York Prisons—in fact, every New York license plate is created by an individual with justice involvement. Though their work results in billions of dollars, individuals with justice involvement receive literal pennies in return.

Of course, the best route is to avoid prison altogether. 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.

Fentanyl’s Path to the United States

Bellingham Defense Attorney, Drug Offenses, Fentanyl, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

The fentanyl trip: How the drug is coming to America - ABC News

Intriguing WSJ article by Brian Spegele discusses how Chinese chemical companies are producing more ingredients for illegal fentanyl than ever. Consequently, this has strained relations between Beijing and Washington are undermined efforts to stop the flow.

Among the available products are compounds with obscure names such as N-Phenyl-4-piperidinamine, which Mexican cartels purchase to make into fentanyl. The opioid has become the most deadly illegal drug the U.S. has ever seen.

WHY HAS THIS HAPPENED?

In 2018, China restricted the production and sale of two of the most common ingredients for the drug. This move won it praise from the U.S. Since then, the U.S. has adopted a tougher posture toward China. Simultaneously, China has also grown more assertive about defending its interests. As a consequence, the cooperation on combating the drug trade has broken down.

Conversations about fentanyl between China and officials from the Drug Enforcement Administration and State Department have ceased, according to Biden administration officials. Also, U.S. officials said China cut off all talks over fentanyl after House Speaker Nancy Pelosi visited Taiwan. Apparently, Pelosi’s visit to Taiwan angered China.

Since then, the flow of Chinese chemicals to Mexican drug cartels has created a major challenge in the U.S.-China relationship.

CHINA’S RESPONSE TO THE ACCUSATIONS.

China places the blame squarely on the U.S. “As a matter of fact, it is the U.S. that has undermined China-U. S. counter-narcotics cooperation,” said Liu Pengyu, a spokesman for China’s embassy in Washington.

China has also said the U.S. should address its drug crisis by curbing demand. “The U.S. must look squarely at its own problem instead of deflecting blame,” said Foreign Ministry spokesman Wang Wenbin at an August news conference.

China’s government considers biopharmaceuticals an important economic driver and has no incentive to overregulate the sector.

CHINA’S CONNECTION TO MEXICAN CARTELS.

Accoring to the article, chemical companies in China target Mexican buyers online. The companies say they accept payment in cryptocurrency, and they use encrypted channels to talk with customers.

Some Chinese nationals working with cartels moved to Mexico and adopted local names as part of money-laundering rings, say federal prosecutors. One such network funneled drug proceeds from New York through China’s banking system and ultimately to Mexico.

The U.S. has charged Chinese citizens whom prosecutors accuse of helping cartels supercharge the fentanyl trade. Because the countries have no extradition treaty, some of the accused remain at large.

ULTIMATUMS FROM THE UNITED STATES TO CHINA.

U.S. officials say they have urged China to take three steps to constrict the fentanyl trade: (1) require Chinese companies to know the identities of customers before shipping chemicals; (2) ensure that such shipments are properly labeled for customs inspectors; and (3) create a system to track shipment volumes and trends.

Homeland Security agents and Mexican authorities stopped about 24,000 pounds of cutting agents coming from China to dilute high-purity fentanyl synthesized by cartels in Mexico in October 2020. Agents also blocked 1,600 pounds of 4-AP coming into Mexico from China and 1.5 million pounds of ingredients for meth from China and India, in 2021 and 2022.

Agents traced the chemicals to high-level buyers inside a Mexican cartel. The transactions, through brokers and shell companies, were arranged so the chemical makers in China might not have known who bought the chemicals in Mexico.

My opinion? Unfotunately, this news reveals how high-level politics have globalized the drug trade of Fentanyl into the U.S. Fentanyl is the deadliest drug threat facing this country. It is a highly addictive man-made opioid that is 50 times more potent than heroin. Just two milligrams of fentanyl, the small amount that fits on the tip of a pencil, is considered a potentially deadly dose.

That said, Washington has legalized the possession of small amounts of drugs. In March 2021, the WA supreme court threw out the existing felony drug law in its “Blake” decision. Consequently, possessing small amounts of drugs including heroin, methamphetamine, fentanyl and cocaine has effectively been decriminalized in Washington. Therefore, simply because you’re caught with drugs doesn’t mean you’re selling drugs, which is still illegal.

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.

FBI’s Hate Crime Statistics in Whatcom County

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United States Department of Justice-Hate Crimes-Learn More

Informative article by Robert Mittendorf discusses the FBI’s recent statistics on Whatcom County’s Hate Crime numbers. The FBI’s report included incidents from 2021 that were reported from numerous police agencies. Information was gleaned from Bellingham Police, the Whatcom County Sheriff’s Office, Western Washington University Police, Lummi Nation and Nooksack tribal police, and police in Blaine, Everson, Ferndale, Lynden and Sumas.

A total of 12 hate crimes were reported in Whatcom County in 2021, down from 20 in 2020. As a caveat, Whatcom County agencies did not report bias incidents, which often don’t meet the legal standard for a hate crime. Malicious Harassment is what a hate crime is called in Washington state. It must include an assault or vandalism, or cause reasonable fear in the victim.

The 2021 crime statistics included the following:

  • Bellingham reported nine incidents, including six with racial motivation, one with religious overtones and two that involved sexual orientation. That overall figure was down from 14 incidents that Bellingham Police reported to the FBI in 2020. One incident was anti-white and another was anti-Protestant, according to the data.
  • Three of the six racially motivated incidents in 2021 were directed at people of Asian heritage, who have faced increasing harassment in recent years.
  • Whatcom County reported a single hate crime in 2021, an incident that was listed as anti-Hispanic or Latino.
  • A total of four hate crimes were reported by the Sheriff’s Office in 2020. Members of the Whatcom County Council voted 4-3 to form a Racial Equity Commission earlier this year, and both the Bellingham City Council and the Whatcom County Council have said that racism is a public health crisis.
  • Western Washington University reported two hate crimes in 2021, both based on religion. WWU also reported two incidents in 2020. One victim at WWU was of the Sikh faith and the other was Jewish, according to the report. WWU has seen several racial bias incidents this fall, including those directed at Jews, Iranian Muslims and Blacks, The Herald has reported.
  • Lynden Police reported a single hate crime in 2021, an assault where gender identity was the motive.
  • Police in Blaine, Everson, Ferndale and Sumas reported no hate crimes that met FBI guidelines in 2021.
  • Lummi Nation and Nooksack Tribal Police reported no hate crimes in 2021.

My opinion? Hate crimes occur when a perpetrator targets a victim because of his or her membership in a certain social group, usually defined by race, religion, color, national origin (or ethnicity), age, disability, sexual orientation, gender, or gender identity. Hate crimes are different because they’re not always directed simply at an individual. They are meant to cause fear and intimidation in an entire group or class of people.

However, simply because someone believes they are victimized for their race, religion, etc., doesn’t always mean they are actually victims of hate crimes. Perhaps the perpetrator suffered from a mental health episode. Perhaps a lack of evidence may exist. Or perhaps the alleged victim was overly sensitive. And we can’t overlook the fact that some want to increase such prosecutions by defining so-called “hate speech” as a hate crime. “Cancel culture” and “trigger warnings” are bad enough, but criminalizing speech that some find offensive?

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.

DOJ Ends Crack Cocaine Sentencing Disparities

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No More Crack/Powder Disparities – Dr. Carl Hart, PhD

The US attorney general, Merrick Garland, moved to end sentencing disparities that have imposed different penalties for different forms of cocaine. This signaled an end to arbitrary drug policies that have worsened racial inequity in the US justice system.

For decades federal law has imposed harsher sentences for crack cocaine even though it isn’t scientifically different from powder cocaine, creating “unwarranted racial disparities,” Garland wrote in a memo Friday to federal prosecutors. “They are two forms of the same drug, with powder readily convertible into crack cocaine.”

With changes to the law stalled in Congress, Garland instructed prosecutors in non-violent, low-level cases to file charges that avoid the mandatory minimum sentences that are triggered for smaller amounts of rock cocaine.

Civil rights leaders and criminal justice reform advocates applauded the changes, though they said the changes would not be permanent without action from Congress. The Rev Al Sharpton led marches in the 1990s against the laws he called “unfair and racially tinged” and applauded the justice department direction, which takes effect within 30 days.

“This was not only a major prosecutorial and sentencing decision – it is a major civil rights decision. The racial disparities of this policy have ruined homes and futures for over a generation.” ~Reverend Al Sharpton

At one point, federal law treated a single gram of crack the same as 100 grams of powder cocaine. Congress narrowed that gap in 2010 but did not completely close it. A bill to end the disparity passed the House last year but stalled in the Senate.

“This has been one of the policies that has sent thousands and thousands of predominantly Black men to the federal prison system,” said Janos Marton, vice-president of political strategy with the group Dream.org. “And that’s been devastating for communities and for families.”

While he welcomed the change in prosecution practices, he pointed out that unless Congress acted, it could be temporary. The bill that passed the House with bipartisan support last year would also be retroactive to apply to people already convicted under the law passed in 1986.

The Black incarceration rate in the US exploded after the Anti-Drug Abuse Act of 1986 went into effect. It went from about 600 per 100,000 people in 1970 to 1,808 in 2000. In the same timespan, the rate for the Latino population grew from 208 per 100,000 people to 615, while the white incarceration rate grew from 103 per 100,000 people to 242.

The mandatory-minimum policies came as the use of illicit drugs, including crack cocaine in the late 1980s, was accompanied by an alarming increase in homicides and other violent crimes nationwide.

The act was passed shortly after an NBA draftee died of a cocaine-induced heart attack. It imposed mandatory federal sentences of 20 years to life in prison for violating drug laws and made sentences for possession and sale of crack rocks harsher than those for powder cocaine.

Friday’s announcement reflected the ways that years of advocacy had pushed a shift away from the “war on drugs” tactics that took a heavy toll on marginalized groups and drove up the nation’s incarceration rates without an accompanying investment in other services to rebuild communities, said Rashad Robinson, president of Color of Change.

“It is a recognition these laws were intended to target Black people and Black communities and were never intended to give communities the type of support and investments they need,” he said.

My opinion? It’s about time. The sentencing disparity between crack and powder cocaine was racist. It was never based in sound policy, and has not improved public safety. Far from it — it is science fiction that has driven racial disparities, bloated our carceral system, and ruined thousands of lives.

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.

Harming a Police Dog

Arson, Bellingham Defense Attorney, Harming a Police Dog, Malicious Mischief, Mount Vernon Criminal Defense Attorney, Resisting Arrest, Self-Defense, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Man Who Shot, Killed Ohio K-9 Officer Jethro Sentenced to 45 Years in Prison - ABC News

In State v. Moose, the WA Court of Appeals decided an interesting case involving a defendant maliciously harming a K-9 officer.

BACKGROUND FACTS

The Defendant Mr. Moose attempted to light a car on fire. In the process, he intentionally lit a police dog on fire while resisting arrest. The State filed four charges against him—attempted Arson in the Second Degree, Harming a Police Dog, Resisting Arrest, and attempted Malicious Mischief in the Third Degree. A jury convicted him of all charges. Mr. Moose appealed his conviction. He argued that the term “maliciously” under the Malicious Mischief statute does not include police dogs.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by framing Mr. Moose’s appellate arguments. In short, Moose argued that the State lacked evidence to convict him because the Malicious Mischief statute defines “maliciously” as “an evil intent, wish, or design to vex, annoy, or injure another person.”  Because Mr. Moose harmed a police dog, not “another person,” the State failed to prove he acted maliciously as required by statute.

However, the Court of Appeals denied Moose’s interpretation of the statute:

“Mr. Moose’s argument is unconvincing . . . A statute criminalizing malicious injury of a police dog plainly requires a definition of “maliciously” that applies to police dogs. Further, Mr. Moose’s reading of “maliciously” in RCW 9A.76.200 to require acting against “another person” violates multiple canons of statutory interpretation . . .

He suggests we read RCW 9A.76.200 so as to render the entire statute meaningless. This is an absurd result that was clearly not intended by the legislature. The State was not required to prove Mr. Moose harmed “another person” to prove he harmed a police dog, and the evidence at trial was sufficient to sustain his conviction.”

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

My opinion? In nearly every state, there are specific laws that, for all intents and purposes, equate an attack on a police dog as the same as an attack on a regular officer. WA State is no different, and the penalties are incredible harsh. Recently, a man was sentenced to 45 years for killing a police dog. Generally, though, individuals do have the right to resist unlawful arrests, excessive force, and unprovoked attacks from officers and K-9s.

However, when a police dog is attacking a person, depending on what the dog is doing, a person may be able to claim that the use of a police dog constitutes excessive force. Many police dogs are trained to “bite and hold” suspects, which as the name implies, involves a K-9 literally biting down on a suspect in order to prevent them from fleeing until human officers can arrive. Because dog bites can be extraordinarily severe, an individual may be justified in fighting back in that situation. Self-Defense may apply if the bite is drawing blood, or severely injuring an individual.

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.

Federal Prisoners Punished for Using Their Prescribed Medications

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Delaware inmate's overdose shows how easy it is to get drugs into prison

Intriguing article from journalist Beth Schwartzapfel discusses federal prisons punish prisoners for using addiction medication. The article was published in partnership with The Marshall Project, who spoke to more than 20 people struggling with addictions in federal prison. They described the dire consequences of being unable to safely access a treatment that Congress has instructed prisons to provide.

Last year, the Bureau of Prisons disciplined more than 500 people for using Suboxone without a prescription. When prescribed, Suboxone typically comes as a strip of film that patients dissolve under the tongue. On the illegal market behind bars, a strip is cut into 16 or 32 pieces, each of which sells for $20.

Some prisoners have overdosed. Many have gotten involved in dangerous and illicit money-making schemes to pay for Suboxone. The medication costs about $20 for a small fraction of a daily dose on the illegal market, several prisoners said. Many have lost phone or visiting privileges or been sent to solitary confinement because they were caught taking the medication.

“Believe me, 100% I recognize the irony there,” said a bureau administrator familiar with the agency’s addiction treatment programs, who spoke on the condition of anonymity because they are not authorized to speak to the press. “It’s maddening.”

THE “FIRST STEP” ACT

Congress passed the First Step Act four years ago, requiring, among other things, that the Bureau of Prisons offer more prisoners addiction medications, the most common of which is Suboxone. The medications can quiet opioid cravings and reduce the risk of relapse and overdose.

Yet the federal prisons are treating only a fraction — less than 10% — of the roughly 15,000 prisoners who need it, according to the bureau’s estimates.

At the end of October, 21 prisons were not offering any prisoners addiction medication, and another 59 were treating 10 or fewer people — in many cases, just one person, according to bureau data obtained through a Freedom of Information Act request. The rest of the 121 facilities nationwide were each treating a few dozen people at most.

THE CHALLENGES OF PRESCRIBING MEDICATIONS TO PRISONERS

According to the article, the Bureau of Prisons (BOP) is treating increasingly more people since it launched its opioid medication program. In 2019, 41 people were receiving addiction medications. As of October, that had risen to 1,035 people; more than 80% of them are receiving Suboxone. This is good progress.

However, the BOP has fought in court to prevent people entering the system from staying on the addiction medications they were prescribed by doctors in the community. That began to change in 2018, when the First Step Act was passed and prisons and jails across the country began losing lawsuits from prisoners who argued it was cruel and unusual to deny them the addiction medicine they’d been taking before they were incarcerated.

Presently, prisoners need to overcome several administrative hurdles before they can begin medication. They must also obtain clearance from psychological services, then health services, before seeing a prescriber. This process naturally involves extended wait times. Some say the issues stem from a culture at the BOP that is skeptical of addiction medication and pits staff against prisoners.

Federal law treats use of any narcotics without a prescription in federal prison — including Suboxone — as a “greatest severity level prohibited act.” This infraction allows officials to punish prisoners by delaying their release date, confiscating their property. It also allows officials to withdraw visiting or phone privileges and hold prisoners for up to six months in solitary confinement. Experts say even a few days in solitary can exacerbate the mental illness that is often the cause of, or closely linked to, drug addiction.

According to the article, the lack of Suboxone treatment comes amid a rise in drug-related deaths behind bars. A variety of substances are routinely smuggled into prisons and jails through mail, drone drops, visitors or corrections officers and other staff. In the last two decades, federal data shows that fatal overdoses increased by more than 600% inside prisons and more than 200% inside jails.

Forty-seven incarcerated people died of overdoses in federal prison from 2019 through 2021, according to internal bureau data released via a public records request. The data does not specify how many of these overdose deaths were caused by opioids and could have been prevented by medications like Suboxone. However, other BOP data offers some clue: During the same period, correctional staff administered Narcan — a drug that reverses opioid overdoses — almost 600 times in federal prisons.

Prison is an awful experience. Serving a prison sentence while needing a prescription medication is even more challenging. 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.

Hands Are Not An “Instrument or Thing” Used to Prove Assault Third Degree

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Fold Your Hands — Coffee + Crumbs

In State v. Altman, the WA Court of Appeals reversed the Defendant’s conviction for Assault Third Degree because there was no evidence that the defendant used anything other than his hands to assault the victim.

FACTUAL BACKGROUND

The victim A.W. alleged that she was sexually assaulted by Mr. Altman. The State charged Altman with second degree assault with sexual motivation, alleging he intentionally assaulted A.W. by strangulation or suffocation. Alternatively, the State charged Altman with third degree assault with sexual motivation for causing bodily harm to A.W. by means of a weapon or other instrument or thing likely to produce bodily harm. The State also charged Altman with second degree rape and unlawful imprisonment with sexual motivation

During closing arguments, the State argued that Altman’s hands were a “thing” used to
support a lesser alternative charge of third degree assault:

“I submit to you the State is not saying that there was a weapon used in this case. I submit to you that we’re not saying there was an instrument that was used in this case. However, it also says it can be from a thing likely to produce bodily harm. And I submit to you, ladies and gentlemen, a thing can be anything.” State Prosecutor.

The jury found Altman not guilty of second degree rape, second degree assault by
strangulation with sexual motivation, and unlawful imprisonment with sexual motivation.
However, the jury found Altman guilty of a lesser alternative charge of third degree assault. Mr. Altman appealed on arguments that the evidence was insufficient to show that he assaulted A.W. with an “instrument or thing.”

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began with a discussion of the elements required to prove Assault Third Degree. In short, a person is guilty if he “causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.”

“The issue here is whether a hand meets the statutory requirement of “other instrument or thing likely to produce bodily harm,” said the Court. The Court reviewed State v. Marohl, as reliable caselaw precedent. In Marohl, the court suggested that a casino floor could fall within the statute if it was used to smash someone’s head. Also, the Marohl court applied the dictionary definition to “instrument” and “thing,” describing both as:

“Here, in light of Marohl’s definition of “instrument or thing likely to produce bodily harm, hands do not qualify. The State relied solely on Altman’s hands to support the lesser alternative charge of third degree assault. Hands are not a “utensil” or “implement.” Nor are hands “an inanimate object.” Instead, hands are an extension of a person.” ~WA Court of Appeals.

The Court further reasoned that there is no other evidence that Altman used anything other than his hands when grabbing and squeezing A.W.’s neck. Therefore, the State failed to present sufficient evidence to support the essential element of “a weapon or other instrument or thing likely to produce bodily harm” for third degree assault.

With that, the Court of Appeals reversed and vacated Altman’s conviction for third degree assault with prejudice.

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.

Locked Out 2022: Estimates of People Denied Voting Rights

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The state of ex-felons' voting rights, explained - Vox

An insightful report from The Sentencing Project describes how an estimated 4.6 million Americans are barred from voting due to a felony conviction.

Laws in 48 states ban people with felony convictions from voting. In 2022, an estimated 4.6 million Americans, representing 2 percent of the voting-age population, will be ineligible to vote due to these laws or policies, many of which date back to the post-Reconstruction era. In this election year, as the United States confronts questions about the stability of its democracy and the fairness of its elections, particularly within marginalized communities, the impact of voting bans on people with felony convictions should be front and center in the debate.

This 2022 report updates and expands upon 20 years of work chronicling the scope and distribution of felony disenfranchisement in the United States (see Uggen, Larson, Shannon, and Pulido-Nava 2020; Uggen, Larson, and Shannon 2016; Uggen, Shannon, and Manza 2012; Manza and Uggen 2006; Uggen and Manza 2002). As in 2020, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latinx populations impacted. Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2022 election.

AMONG THE REPORT’S KEY FINDINGS:

  • An estimated 4.6 million people are disenfranchised due to a felony conviction, a figure that has declined by 24 percent since 2016, as more states enacted policies to curtail this practice and state prison populations declined modestly. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.7 million in 2000, 5.4 million in 2004, 5.9 million in 2010, 6.1 million in 2016, and 5.2 million in 2020.
  • One out of 50 adult citizens – 2 percent of the total U.S. voting eligible population – is disenfranchised due to a current or previous felony conviction.
  • Three out of four people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on probation or parole.
  • In three states – Alabama, Mississippi, and Tennessee – more than 8 percent of the adult population, one of every 13 adults, is disenfranchised.
  • Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.
  • One in 19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans. Among the adult African American population, 5.3 percent is disenfranchised compared to 1.5 percent of the adult non-African American population.
  • More than one in 10 African American adults is disenfranchised in eight states – Alabama, Arizona, Florida, Kentucky, Mississippi, South Dakota, Tennessee, and Virginia.
  • Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 506,000 Latinx Americans or 1.7 percent of the voting eligible population are disenfranchised.
  • Approximately 1 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

My opinion? Many states restore voting rights to individuals automatically after they exit jail or prison. Others continue the bar on voting even while on probation or parole. A few permanently disenfranchise people with a past conviction or require they petition the government to have their voting right restored. Fortunately, In 2021, Governor Inslee signed legislation restoring voting rights to people convicted of felonies automatically after release from prison.

Losing your right to vote is a terrible consequence of a criminal 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.

New Law Allows Police to Use Street Racing Videos to Track Down Violators

Bellingham Defense Attorney, Legislation, Mount Vernon Criminal Defense Attorney, Reckless Driving, Reckless Endangerment, Skagit County Criminal Defense, Street Racing, Whatcom County Criminal Defense, , , , ,

Street racers are taking over roads with deadly consequences as laws struggle to keep up | KATU

Florida passed a new law allowing street racing videos to be used as evidence to track down violators. Florida House Bill 399, which Governor Ron DeSantis signed earlier this year, went into effect October 1. It bans everything from street takeovers to drag racing to doing donuts on public roads.

Under this law, police don’t have to physically see the incident take place to go after violators. They can simply track down violators based on the license plates, the cars and the people in the video. Violators can be charged with a  misdemeanor and face a possible fine between $500 and $1,000. If charged, they also risk losing their driver’s license up to one year.

There was essentially no opposition to the bill in Florida’s legislature. It passed unanimously.

For now, there is only a patchwork of laws across the country that criminalize the dangerous activity. Because there’s no federal legislation about the issue, individual municipalities are left to come up with their own solutions.

According to Insurify, just in the 10 states they examined, the penalties for street racing range from just a $20 fine to a year of jail time. Insurify also conducted studies which found the following:

  • National averages. Across the United States, 3.48 per 100,000 drivers have a street racing violation on record. Plain old speeding is much more common, as a whopping 9,175 drivers per 100,000 report a speeding ticket on their record — that’s nearly 1 in 10 drivers. The penalty for street racing differs widely by state, ranging from as little as $20 to as much as $2,500 among states with the most street racers. Jail time and temporary license revocation are also possible punishments.
  • Despite the attention, street racing is still rare. Road racing has been on the rise for the past couple of years in America, and its flashy nature tends to draw headlines. Overall, however, street racing is a rare occurrence. For perspective, police issue more than 2,600 speeding tickets for every 1 street racing citation. Despite racing’s outsized fame, plain and simple speeders are who pervade the roads.
  • Street racing is inversely related to population density. Researchers at Insurify found a significant negative correlation (R = −0.27, p < 0.05) between a state’s street racing rate and its population density. This means that states with fewer residents per square mile are more likely to have high rates of street racing and that states with a high number of residents per square mile are more likely to have low rates of street racing. Coupled with the knowledge that road racing levels increased during early COVID-19 shelter-in-place orders, this is further evidence that emptier roads are attractive to drivers with a penchant for racing.

My opinion? Expect similar laws to spread around the country. Street racing is an activity on the rise, from Baltimore and Portland to Seattle and Salt Lake City, and many more communities all across America. Chicago recently formed a task force to try to tackle the problem. Just this past month, Phoenix police said four people were killed as a result of street racing. The issue took root during the Coronavirus Pandemic, when roads normally clogged with commuters suddenly emptied, opening the door to a surge in illegal street racing.

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