Category Archives: Whatcom County Criminal Defense

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.

 

Eliminate Unnecessary Traffic Stops

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, police, Race & Law, Reckless Driving, Skagit County Criminal Defense, Traffic Infractions, Whatcom County Criminal Defense, , , , ,

New Report Details How Routine Traffic Stops Turn Deadly

Excellent article by Finesse Moreno-Rivera gives solutions to eliminating unnecessary traffic stops. Unfortunately, many of these impromptu occurrances become escalated and result in fatalities. To protect motorists and police, we need better protocols.

The Data

According to recent data from Mapping Police Violence, an unfortunate amount of civilian deaths occur during traffic stops.  In many cases, the police department responsible refused to provide details or justification. Purported traffic violations account for about 40% of these killings. And almost half of those involved individuals under the influence of drugs, alcohol or with mental illness.

In nearly 430 of these fatal traffic stops, the victim was suspected of carrying a weapon. But in 20% of the cases – that’s more than 80 deaths – the individual was unarmed. In about 350 deadly incidents, the officer initiated a traffic stop for unspecified circumstances.

To reduce police violence, states need to reform their policies:

Limit stops for minor traffic violations. Clearly, more states need to adopt policies to prevent police from pulling over nonthreatening vehicles. Cities such as Los Angles and Philadelphia have passed legislation to end unnecessary traffic stops. These reforms aim to decrease unnecessary exposures to danger and to mitigate police’s tendency toward racial bias. We must stop pulling vehicles over for minor traffic violations with intent to investigate for larger offenses. Instead, we must incentivize officers to determine whether a vehicle is involved in a serious crime before pulling them over.

Eliminate incentives for ticket revenue. The financial incentive for police to stop drivers has been an issue for a long time. This is because many communities rely heavily on ticket revenue. Many local and state governments are so dependent on officers’ traffic stops for revenue, they often evaluate officers based on ticket quotas. This system attaches monetary gain or promotions to the number of tickets issued. Making matters worse, the federal government awards municipalities money for the number of tickets issued. This negative financial incentive goes all the way to the top, establishing a system conducive to corruption. To date, more than 20 states have prohibited quotas. This is a step in the right direction.

Create national campaign for traffic stop awareness. Police academies train recruits in basic traffic stop fundamentals. However, motorists in driving school do not get the run-down on police procedures. This unpreparedness increases the risk of danger for both motorists and officers. The lack of standardization in traffic stop conduct is a real problem.

Motorists can send mixed signals to officers or be wary of traffic stops, especially if they’re a person of color. Teaching drivers about police protocol and their rights and responsibilities would promote safe and effective roadside communication.

Some organizations already offer this kind of roadside safety education. The National Association of Black Law Enforcement hosts events in Black communities to teach people the risk of traffic stops, how to act when stopped by police given what police are trained to watch for, and what their actions will communicate to their officers.

Police reforms so far aren’t keeping people from dying. The only way to protect motorists and officers is to limit traffic stops and to promote clear communication between officers and citizens after the sirens have sounded.

My opinion? The challenges facing law enforcement are difficult. Perhaps a shift in protocols would ensure that everyone – officers included – are more safe in their day-to-day contacts with citizens. Let’s prevent Reckless Driving or DUI incidents from becoming lethal. 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.

At Trial, Police Can’t Comment on a Defendant’s Post-Arrest Silence

Assault, Bellingham Defense Attorney, Constitutional Rights, felony, Fifth Amendment, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Van Dyke trial: Breaking down all 44 witnesses – Chicago Tribune

In State v. Palmer, the WA Court of Appeals held that the defendant’s Fifth Amendment Right Against Self-Incrimination was violated when the detective commented about the defendant’s post-arrest silence.

BACKGROUND FACTS

Palmer and his girlfriend, DD, moved in together in 2013. They lived together with DD’s two biological children from a prior marriage, her son AD, and her daughter PD. Palmer and DD also had a baby together, LP. Sometime in 2014, the family moved to Washington. Palmer served as caregiver to the children and in that role disciplined both PD and AD.

During a family car trip in 2016, Palmer grabbed AD by the neck, leaving a scratch. At
some point after the car trip incident, Palmer told DD that PD had touched his penis. Thereafter, PD disclosed to DD that Palmer had touched her vagina. Approximately four months after PD’s disclosure, DD contacted law enforcement. Law enforcement authorities interviewed the children on two separate occasions. Detective Ramirez participated in PD’s interview during which he learned of the accusations against Palmer.

Eventually, Detective Ramirez took Palmer into custody, read him Miranda rights, and questioned him. Ramirez ended the questioning after Palmer repeatedly refused to admit to any wrongdoing. Ramirez returned the next morning for additional questioning, but Palmer refused to talk. The State charged Palmer with one count of child molestation in the first degree and two counts of assault of a child in the second degree.

At trial, the Prosecutor questioned DSetective Ramirez and asked if he had spoken to Palmer after his initial interview. In the presence of the jury, Ramirez testified that he “went back the next morning, thinking that, you know, a day sitting in the county jail, you know, there’s some time to think, and maybe Mr. Palmer would want to do the right thing here.” Ramirez further testified that he told Palmer, “You’ve had some time to think. Do you want to talk?” and that Palmer responded that he did not want to talk.

The jury convicted Palmer of all charges.

On appeal, Palmer argued his right against self-incrimination was violated when Detective Ramirez discussed Palmer’s decision to remain silent.

COURT’S ANALYSIS & CONCLUSIONS

The Court began with an engaging discussion of the Fifth Amendment. In short, a defendant’s right against self-incrimination prohibits the State from eliciting comments from witnesses about the defendant’s pre- or post-arrest silence. The State may also not suggest the defendant is guilty because they chose to remain silent, because the assurance of Miranda is that remaining silent will not be penalized.

Here, the State unequivocally elicited a comment from Ramirez about Palmer’s decision
to remain silent.

“Ramirez’s testimony was a comment on Palmer’s right to remain silent. More pointedly, contrary to State v. Easter, the State suggested that Palmer was guilty due to his silence. Indeed, Ramirez testified that Palmer remained silent after being given a chance to “do the right thing” by admitting criminal conduct. This statement presupposed Palmer’s guilt and created an impossible choice: Palmer could either do right by confessing to molesting a child or do wrong by remaining silent.”

“Implicit in the ‘silence equals wrongfulness’ notion is that silence withholds the ‘truth’—that ‘truth’ being one’s criminal conduct, even if there was no criminal conduct. In this context, a defendant cannot maintain their presumption of innocence by remaining silent. A detective’s belief on this front may assist with their investigative duty, but established authority prohibits using a defendant’s right to remain silent to suggest guilt to the jury.” ~WA Court of Appeals.

The Court of Appeals concluded by saying that alone, this violation may warrant reversal and a new trial. “However, because we reverse on other grounds, we remind the State that it is forbidden from eliciting comments about Palmer’s silence during his new trial.” With that, the Court of Appeals reverse the convictions and remanded to the trial court for a new 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.

Trial Strategy: The Lesser-Included Jury Instruction

Assault, Bellingham Defense Attorney, Lesser Included Jury Instruction, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Some Thoughts About Trial Strategy - California Desert Trial Academy College of Law

At trial, criminal defendants have the right for the jury to be instructed on any applicable lower or lesser-included crimes. The evidence must support an inference that the lesser crime was committed instead of the greater offense.

However, should defendants always seek lesser-included jury instructions if the facts warrant this strategy? Isn’t it true that giving a jury too many alternatives to decide convict ultimately result in a conviction? A recent case captured the trickiness of deploying (or not) the lesser-included jury instruction at trial.

In State v. Conway (10/27/22), the WA Court of Appeals held that Defense Counsel’s “all-or-nothing” trial strategy was effective, even when counsel declined to seek a lesser included jury instruction. The Court found Counsel’s decision was deliberate and strategic, and did not prejudice the defendant at trial.

BACKGROUND FACTS

Mr. Conway allegedly attacked three different individuals at the Spokane Amtrak Station in a series of incidents. The State charged Conway with one count of second degree assault, one count of third degree assault, and one count of fourth degree assault. At trial, defense counsel admitted to the fourth degree assault. He also admitted that the other crimes amounted to fourth degree assault. However, counsel did not request an instruction for a lesser-included offense. The jury found Conway guilty of second and fourth degree assault but acquitted him of third degree assault.

On appeal, Conway argues ineffective assistance of counsel for his attorney’s failure to request an instruction for the lesser-included offense of fourth degree assault.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Criminal defendants have a constitutionally guaranteed right to effective assistance of counsel. A defendant bears the burden of showing (1) that his counsel’s performance fell below an objective standard of reasonableness based on consideration of all the circumstances and, if so, (2) that there is a reasonable probability that but for counsel’s poor performance, the outcome of the proceedings would have been different.

The Court further elaborated that In reviewing the record for deficiencies, there is a strong presumption that counsel’s performance was reasonable. The burden is on a defendant alleging ineffective assistance of counsel to show deficient representation.

“A decision by defense counsel to forgo an instruction on a lesser-included offense may be a legitimate trial tactic . . . Both the defendant and the State have the right to present an instruction for a lesser-included offense if all of the requirements have been met.” ~WA Court of Appeals, Division III.

Here, defense counsel’s decision to forgo an instruction on the lesser-included offense was not deficient. It was clearly strategic.

The Court of Appeals reasoned that there was strong evidence in support of the State’s assault charges. “The State presented the jury with undisputed video evidence of Conway assaulting the victims,” said the Court. “Because the State presented undisputed video evidence of the assaults, it was a legitimate trial tactic for defense counsel to admit that Conway had committed fourth degree assault.”

Moreover, even though an all-or-nothing strategy is legitimate regardless of success, in this case it worked. The jury acquitted Conway of third degree assault even though counsel acknowledged the assault.

With that, the Court of Appeals decided that Conway’s attorney was not constitutionally ineffective. “Defense counsel made a strategic decision to forego a lesser-included instruction on a felony assault charge,” said the Court. “The decision was not deficient and did not prejudice Conway at trial.” The Court upheld Conway’s conviction second and fourth degree assault.

My opinion? The above case captures the trickiness of allowing juries to convict a defendant of a lesser charge. In many cases, lesser included charges are important to defendants because jurors do not always exactly follow the law. For example, in an assault case, the jury might be so outraged at what they consider to be a brazen attack by the defendant that they don’t carefully consider whether the injuries were significant enough to rise to a felony or misdemeanor before returning a guilty verdict.

If the defense requests a lesser included charge of a lesser crime, the jury is more likely to carefully look at the evidence presented. Consequently, they may convict the defendant of the lesser crime if that is the only charge that they feel the evidence supported.

Requesting a lesser included charge is a double-edged sword, however. Some juries might have acquitted the defendant of assault if they didn’t believe that the prosecution proved that the incident was an upper-level felony. Ultimately, the key to deciding whether to request a lesser included charge is weighing the risks against the rewards.

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.

Mentally Ill Are Decompensating in Washington Jails

Bellingham Defense Attorney, Jail, Mental Health, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Prisons have become warehouses for the mentally ill.

Great article by journalist Susannah Frame discusses the record number of inmates with mental illnesses suffering in jail.

Decades of research show that people with serious mental illness who are jailed experience steep declines in their mental health, This is especially true for inmates locked in solitary confinement. But in the state of Washington, the time spent behind bars for people who are mentally ill and waiting for court-ordered treatment is at an all-time high.

Washington is experiencing the biggest backlog in state history of mentally ill defendants sitting in jails. Amny of them are waiting for required services to restore their competency. This allows defendants the help they need to understand the charges against them and to participate in their defense.

In October 2021, approximately 350 defendants deemed incompetent to stand trial were waiting for a bed at Western State Hospital or Eastern State Hospital. In October 2022, the number was about 850 people, a 142% increase in one year, state records show. The numbers include people waiting both in and out of county jails.

“Jail is the worst place to be for a person who has a serious mental illness . . . It can really cause irreversible brain damage. And the longer that a person spends in untreated psychosis the harder it is for them to return to the same level of functioning once they’re receiving treatment again.” ~Lisa Dailey, Executive Director of the Washington DC-based Treatment Advocacy Center.

The state agency charged with providing services to mentally ill defendants, the Department of Social and Health Services (DSHS). Unfortunately, DSHS has been in “contempt” of a 2015 federal court order since July 2016. The order stems from a 2014 class action lawsuit, known as Trueblood. In the case, federal Judge Marsha Pechman ruled DSHS is violating the civil rights of defendants waiting in jail for services. She ordered that mentally ill defendants get a bed at a state psychiatric hospital within seven days. Currently some people are waiting seven months.

Massive Increase in Demand for Social Services

DSHS officials said the biggest challenge to moving people into mental health hospitals is the dramatic increase in demand. The number of people in jail ordered to receive in-hospital services jumped from 996 people in 2015 to 2397 people in 2022. That’s an increase of 141%.

“We knew ahead of time that services would be increasing over time. We knew that. But can you predict? Can you look into a crystal ball and know exactly what’s going to happen? No. Ideally, they would be in the community. They would be with their family, their friends, they wouldn’t be involved in the criminal justice system. The ultimate goal is to prevent them from having that interaction, to begin with.” ~DSHS Chief Medical Officer Dr. Brian Waiblinger

DSHS has several construction projects underway to create more bed space and resources. Projects include a 58-bed facility on the grounds of Western State Hospital scheduled to open within months. These beds are designated for people charged with a crime who need competency evaluations or restoration services.

“It’s a very difficult time right now,” Waiblinger said. “(But) I am very hopeful that we can turn this around. I think we need to do something about creating more community resources.”

Jail is a terrible place, especially for those suffering from mental illness. Please review my Making Bail Legal Guide 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.

Alcohol Detection Systems in All New Vehicles?

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, ,

Clemson Vehicular Electronics Laboratory: Alcohol Sensor

Great article by journalist Murray Slovik says that technologies are needed for alcohol-impairment detection in cars.

Apparently, DUI remains a leading cause of injury-involved highway crashes. According to the National Highway Traffic Safety Administration (NHTSA), in 2020, roughly one in three traffic fatalities resulted from crashes involving alcohol-impaired drivers.

Since 2000, more than 230,000 people have lost their lives in crashes involving alcohol, again according to NHTSA. In 2020, an estimated 11,654 fatalities occurred in alcohol-impaired crashes. This number represented about 30% of all traffic fatalities that year and a 14% increase over the 10,196 individuals who died because of alcohol-impaired crashes in 2019. This comes at a time when vehicle miles traveled in the U.S. decreased by about 13.2% in 2020.

In response, the National Transportation Safety Board (NTSB) is making a major push to cut down on the number of alcohol-related crashes and deaths. They’ve asked the NHTSA to require that all new cars have an alcohol detection device in them. This move stems in part from an investigation into a California crash that killed nine – including seven children.

TECHNOLOGY RECOMMENDATION DETAILS

The NTSB is recommending measures leveraging new in-vehicle technologies that can limit or prohibit impaired drivers from operating their vehicles as well as technologies to prevent speeding. They include:

  • Requiring passive vehicle-integrated alcohol-impairment detection systems, advanced driver monitoring systems, or a combination of the two that would be capable of preventing or limiting vehicle operation if it detects driver impairment by alcohol. The NTSB recommends that the National Highway Traffic Safety Administration require all new vehicles be equipped with such systems.
  • Incentivizing vehicle manufacturers and consumers to adopt intelligent speed adaptation systems that would prevent speed-related crashes.

The issues of impaired driving and excessive speeding are both on the NTSB’s Most Wanted List of Transportation Safety Improvements. To prevent alcohol and other drug-impaired driving crashes, the NTSB has called for, as previously mentioned, in-vehicle alcohol detection technology as well as the lowering of the blood alcohol concentration limit to .05 g/dL or lower. They also recommend alcohol ignition-interlock devices for people convicted of driving while intoxicated and that regulators develop a standard of practice to improve drug toxicology testing.

Furthermore, the NTSB has called for a comprehensive strategy to eliminate speeding-related crashes. It would combine traditional measures like enforcement and regulation with new technological advances such as speed limiters and intelligent speed-adaptation technology.

SPEED-LIMITING TECH

The NTSB is looking for regulators to develop performance standards for such advanced speed-limiting technology targeted at heavy vehicles including trucks, buses, and motor coaches. They want regulators to require all newly manufactured heavy vehicles be equipped with such devices. NTSB also wants:

  • To collaborate with traffic safety stakeholders to develop and implement an ongoing program to increase public awareness of speeding as a national traffic safety issue.
  • To revise regulations to strengthen requirements for all speed engineering studies and remove the guidance that speed limits in speed zones be within 5 mph of the 85th percentile speed. The 85th percentile speed is the speed at or below where 85% of drivers will operate with open roads and favorable conditions.
  • To update speed-enforcement guidelines to reflect the latest automated speed-enforcement technologies and operating practices and promote these guidelines.

Research suggests speeding is a problem that’s worsening. In 2020, there were 11,258 fatalities in crashes in which at least one driver was speeding, according to the NHTSA. This simply underscores that speeding increases both the chances of being involved in a crash and the severity of crash injuries.

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

“Solicitation” Requires Monetary Value

Assault, Bellingham Defense Attorney, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Solicitation, Whatcom County Criminal Defense, , , , ,

H Law Group: Examples of Criminal Solicitation Under California Penal Code 653f

In State v. Valdiglesias LaValle (10/10/22), the WA Court of Appels overturned a conviction for Solicitation  to commit Murder in the First Degree. Here,  the defendant’s statement to her son that they would be “together forever” after the son poisoned his father to death was not a solicitation based on monetary value.

BACKGROUND FACTS

Ms. Valdiglesias LaValle was born and raised in Peru. She met Mr. Grady, who is 25 years older than her, through an online dating application. Grady brought Valdiglesias LaValle to Skagit County where they got married in 2008. During their marriage, they had two children, S.G. and J.G. By 2014, Grady and Valdiglesias LaValle no longer resided together. Grady filed for dissolution in 2015. Following the dissolution, Valdiglesias LaValle was initially awarded custody, and Grady was required to pay her child support. However, in 2019, the court awarded Grady full custody, and Valdiglesias LaValle was ordered to pay child support to Grady. Valdiglesias LaValle was granted four-hour unsupervised weekly visitation with her children.

On June 2, 2020, Grady drove 10-year-old S.G. and eight-year-old J.G. to Valdiglesias LaValle’s residence for a four-hour visitation. S.G. went into Valdiglesias LaValle’s bedroom because S.G. heard her and J.G. talking about “bad stuff” and “rat poison.” S.G. decided to record the conversation.

In short, Valdiglesias LaValle’s persuaded S.G. to administer rat poison to Mr. Grady’s drink. In exchange, Valdiglesias LaValle promised they would be “together forever” after the son poisoned his father Mr. Grady.

Shortly after, Mr. Grady picked up S.G. and J.G. S.G. shared the recording with Grady. Eventually, Child Protective Services and the police department were informed. The State charged Valdiglesias LaValle with Solicitation to commit Murder in the First Degree and Solicitation to commit Assault in the First Degree.

Valdiglesias LaValle argued a 3.6 Motion to Suppress the audio recording and a Knapstad Motion to Dismiss. The court denied both motions. At trial, a jury convicted her on both counts. Valdiglesias LaValle appealed her conviction on arguments that contends that her statement to S.G., that they will be “together forever,” is not a “thing of value” as
provided in Washington’s criminal solicitation statute.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by describing Washington’s criminal solicitation statute:

“A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he or she offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed.”RCW 9A.28.030(1) (emphasis added).

The Court emphasized that the term “thing of value” is not defined in the statute or anywhere in the statute.

Next, the Court reviewed the plain language of the Solicitation statute. It stated that the relevant language at issue is the requirement that a person ‘offers to give . . . money or other thing of value’ to engage in the conduct. “Here, the phrase ‘thing of value’ is immediately preceded by the term ‘money,'” said the Court. “If the statute was meant to reach anything of value — which would be extremely broad — there would be no need to distinguish “money” separately from “other thing of
value.”

The Court concluded by saying it is not enough to simply command, encourage, or request another person to engage in specific conduct that would constitute a crime. In light of the above, the term “thing of value” under RCW 9A.28.030(1) contemplates things, tangible or intangible, that have monetary value.

With that, the Court of Appeals reversed Valdiglesias LaValle’s conviction and dismissed the case.

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.

Prosecutor’s Use of Term “Mexican Ounce” At Trial Was Race-Based Misconduct

Bellingham Defense Attorney, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Race & Law, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Mexican Ounce (Minus Tax) : r/heroin

 In  State v. Ibarra-Erives (9/19/2022), the WA Court of Appeals reversed the defendant’s drug conviction because the Prosecutor ‘s use of the term “Mexican ounce” at trial was an intentional appeal to jurors’ potential bias.

BACKGROUND FACTS

In June 2018, the Snohomish Regional Drug Task Force executed a search warrant to recover drugs and related evidence in an apartment. A detective persuaded Mr. Ibarra Erives to open the door. Officers then “pulled him out onto the front landing” and arrested him. On the kitchen counter, police found white powder later determined to be methamphetamine.

On the closet shelf in a bedroom, officers discovered a backpack. The backpack contained
seven one-ounce “bindles” of methamphetamine and five bindles of heroin. The backpack did not contain any information identifying its owner. On the shelf next to the backpack, police found a digital scale and a box of plastic sandwich bags.

Ibarra-Erives admitted that he “temporarily” lived at the apartment. He told police he sometimes slept on the couch and sometimes on the pile of blankets officers observed in bedroom where they found the backpack. Ibarra-Erives said the prescription medication and clothes found on the floor of the bedroom were his. But he denied owning the backpack.

When police searched Ibarra-Erives’ pockets, they found a broken glass pipe used for smoking methamphetamine that had white residue and burn marks on it. He also had $591 in cash in his wallet. The State charged Ibarra-Erives with unlawful possession of a controlled substance with intent to manufacture or deliver.

At trial, Ibarra-Erives, who is Latinx, used a Spanish interpreter. During the State’s case in chief, the prosecutor questioned the lead detective about the amount of drugs found in the backpack in room. The detective testified that each “bindle” of methamphetamine weighed 28 grams, or 1 ounce. He then described the bindles of heroin, which each weighed 24.6 grams. He explained that for heroin, “25 grams is considered an ounce.”

When asked why, the detective responded, “I don’t know what the answer is to why, but the term on the street is it’s a Mexican ounce across the board, regardless of who is selling or buying 25 grams of a Mexican ounce.” Then in his closing argument to the jury, the prosecutor twice emphasized that each bindle of heroin had been packaged as a “Mexican ounce.”

The jury convicted Ibarra-Erives as charged. He appealed his conviction on arguments that the prosecutor’s remarks suggested that a Latinx person likely packed or possessed the drugs.  He argues the prosecutor used this gratuitous reference to connect him to the drugs. Consequently, this terminology invoked stereotypes of Mexican drug-dealing and dishonesty against him.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reversed Ibarra-Erives’ conviction.

The Court reasoned that a prosecutor’s zealous pursuit of justice is not without boundaries. However, prosecutors have a duty to the defendant to uphold their right to a fair trial.

“Prosecutors commit misconduct when they use arguments designed to arouse the passions or prejudices of the jury . . . These kinds of arguments create a danger that the jury may convict for reasons other than the evidence produced at trial. In cases where race should be irrelevant, racial considerations, in particular, can affect a juror’s impartiality and must be removed. ~WA Court of Appeals.

The Court further reasoned that an objective observer could view the prosecutor’s references “Mexican ounce” to describe the way heroin was packaged for sale as an intentional appeal to the jury’s potential bias. The term specifically suggests that the defendant was more likely to have possessed drugs packed to a “Mexican ounce” because he speaks Spanish and appears to be Latinx.

“Testimony that heroin is packaged in an amount commonly sold on the street is probative of an intent to sell the drugs. But the street term attributing that practice to a particular racial or ethnic group is not. And when the defendant appears to be a member of that same racial or ethnic group, such comments improperly suggest that he is more likely to have packaged or possessed the drugs.” ~WA Court of Appeals

With that, the WA Court of Appeals reversed the conviction.

My opinion? Good decision.  The prosecution took advantage of despicable stereotypes. In the State’s closing argument at trial, the prosecutor used the term “Mexican ounce” two times. The prosecutor’s use of the term was an apparently intentional appeal to jurors’ potential bias. It improperly suggested that Mr. Ibarra-Erives was more likely to have possessed drugs packed to a “Mexican ounce” merely because he speaks Spanish and appeared to be Latinx.

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.

Prosecutor’s Filing Delay Held Unconstitutional

Bellingham Defense Attorney, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Solutions to the burden of backlog of cases - iPleaders

In State v. Stearns, the WA Court of Appeals held that the Prosecutor’s delay in filing charges violated the defendant’s due process rights.

FACTUAL BACKGROUND

In November 2020, a jury found Mr. Stearns guilty of felony murder in the first degree with sexual motivation. The charges arose from a 1988 incident where the victim’s body was discovered at a park.

In 2004, DNA evidence retrieved from the victim and scene connected Stearns to the incident. In 2005, law enforcement interviewed Mr. Stearns. The prosecutor assigned to the case later acknowledged that sufficient probable cause existed to charge Stearns with the murder. However, the proseutor did not file charges until 2017.

By then, multiple eyewitnesses interviewed by police in 1998 passed away during the delay between the State’s development of probable cause and charging. However, the trial court denied Stearns’s pretrial motion to dismiss based on preaccusatorial delay. In January 2020, a jury trial ultimately resulted in a hung jury. The court declared a mistrial.  The State retried Stearns in November 2020. This time, the jury found Stearns guilty as charged.

On appeal, Stearns argued that the lower court’s ruling on preaccusatorial delay deprived him of a fair trial.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) said that  under State v. Maynard, a court will dismiss a prosecution for preaccusatorial delay if the State’s intentional or negligent delay violates a defendant’s due process rights.

Here, the filing delay actually prejudiced the defendant because a key eyewitness died months after the State filed charges and was unavailable for trial. Furthermore, the State’s reasons for the negligent filing delay were significantly outweighed by the actual prejudice to the defendant.  The prosecutor’s heavy caseload and the defendant’s lengthy incarceration on another case were not valid reasons for the late filing.

The Court of Appeals also reasoned the State violated the fundamental conceptions of justice by failing to file a murder charge with well-developed probable cause for 12 years. This late filing happened despite repeated status inquiries from other investigators and government actors involved in its investigation.

With that, the Court of Appeals reversed Stearn’s conviction and dismissed the case with prejudice.

Some legal insight is necessary. Pre-accusation delay motions (hereinafter “Due Process Motions”) are common among cold-case murders. For instance, investigators may not have enough evidence to legally effectuate an arrest at the time of the murder. The case goes “cold” until years later when DNA evidence links the original suspect to the murder. Due Process motions are brought to protect a criminal defendant for unfair delays which makes putting forth a defense impossible. To establish a due process violation a defendant must demonstrate prejudice. That is, the defendant must show that the pre-indictment delay impaired his or her ability to defend against the charge.

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

Indigenous Prisoners in Walla Walla Gather for Pow wow

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Prison, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

Powwow adds color to local prison - Mitchell Republic | News, weather, sports from Mitchell South Dakota

Journalist Karina Brown reports in Undersore News that Native American prisoners at the State Penitentiary hosted their first powwow in three years. This reunites a 50-year tradition temporarily halted by the Covid-19 Pandemic.

“Today is a big day, to be able to see our families,” said Yakama inmate Tallon Saluskin. “And to get to show love.”

Thirty-seven Indigenous inmates and 75 guests attended the first of 22 powwows scheduled for September and October in Washington state prisons. It was the first time the Washington State Department of Corrections (WDOC) allowed an outdoor powwow in a medium-security prison. There was drumming and dancing, plus a feast of salmon, buffalo stew and fry bread. Late in the afternoon, prisoners presented handmade gifts to nearly every attendee.

The lack of powwows, sweat lodges and other Native American religious ceremonies during the pandemic made a difficult time period even harder. That painful stretch of time without religious ceremonies ended sooner for prisoners who participated in other religions. But Native Americans are incarcerated in the United States at higher rates than any other racial category, after African Americans. Though they make up 1.9% of the population of Washington State, nearly 5% of the people jailed in state prisons in Washington are Native American.

Consequently, Covid restrictions in prison were especially detrimental to Indigenous faith practices.

Bringing Pow wows To Prisons Was Hard-Fought.

Restrictions under the pandemic caused an absence of ceremony comparable only to one other period of time at least 50 years ago.

In 2010, the WDOC sharply curtailed the Indigenous faith practices it allowed. At issue were budget cuts and a dispute over whether to allow children to attend powwows. But the religious rights of Indigenous prisoners are protected under the First Amendment, the American Indian Religious Freedom Act of 1978 and rulings from the U.S. Supreme Court including the 1979 case Bell v. Wolfish, which found that prisoners “do not forfeit all Constitutional protections by reason of their conviction and confinement in prison.”

Ten tribes petitioned the governor for a reversal of the 2010 policies, but it took over two years for the WDOC to restore Native prisoners’ religious rights.

My opinion? This tradition brings healing and strength. And society must recognize that the rehabilitation of inmates would be enhanced if their religious and cultural practices were permitted.

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.