Category Archives: Whatcom County Criminal Defense

Recording An Inmate’s Conversations with Defense Counsel is Unconstitutional

Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Privacy, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Eavesdropping – (California Penal Code Section 632)

In State v. Couch, the WA Court of Appeals held a jailed defendant’s constitutional rights were violated when jail officials recorded multiple jail calls made between the defendant and counsel, video-recorded several meetings between the defendant and counsel, and opened at least one piece of legal mail.

BACKGROUND FACTS

The State charged Mr. Couch with second degree rape-domestic violence and second degree assault-domestic violence after he allegedly forced his former girlfriend to have sex with him after she broke off their relationship.

Before the trial began, Couch filed a motion to dismiss for governmental misconduct under CrR 8.3(b). Couch claimed that the Grays Harbor County Jail had illegally recorded conversations between him and defense counsel and had opened his legal mail. The trial court held a hearing on the motion and heard testimony.

The trial court denied Couch’s motion to dismiss. Later, the jury convicted Couch of second degree rape and second degree assault. Couch appealed on arguments that state actors unlawfully intruded on his communications with his attorneys and that the trial court erred because it did not require the State to establish the absence of prejudice beyond a reasonable doubt.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying the Sixth Amendment guarantees a criminal defendant the right to the assistance of counsel, and that right includes the right to confer privately with their attorney. A state actor’s intrusion into private conversations between attorney and defendant violates this right. There is no distinction between an intrusion by jail security and an intrusion by law enforcement.

Furthermore, if a state actor has violated the defendant’s Sixth Amendment right, prejudice to the defendant is presumed. Because the constitutional right to privately communicate with an attorney is a foundational right, the State must be held to the highest burden of proof to ensure that it is protected.

Intruding on confidential attorney-client communications constitutes misconduct under CrR 8.3(b). This court rule states that the trial court may dismiss a criminal prosecution due to governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.

The Court of appeals reasoned that state actors intruded on Couch’s communications with his attorneys in violation of his Sixth Amendment right to confer privately with those attorneys. Here, the Grays Harbor County Jail (1) recorded multiple telephone calls between Couch and Rivas, (2) video recorded several meetings between Couch and his attorneys, and (3) opened at least one piece of legal mail.

“Therefore, the trial court was required to presume prejudice to Couch,” said the Court of Appeals. From there, the only question for the trial court – the truly correct legal issue – was whether the State proved beyond a reasonable doubt that Couch was not prejudiced when addressing Couch’s motion to dismiss. Therefore, the trial court erred in analyzing Couch’s CrR 8.3(b) motion to dismiss.

With that, the Court of Appeals reversed Couch’s conviction and remanded for the trial court to determine whether to dismiss the case or order a new trial with sufficient remedial safeguards.

Jail is a terrible place. Not only are the conditions deplorable, but privileged conversations with attorneys run the risk of being recorded. Please review Making Bail and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

DNA + Facial Recognition Technology = Junk Science

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , , ,

Psychological Assessment in Legal Contexts: Are Courts Keeping “Junk Science” Out of the Courtroom? – Association for Psychological Science – APS

Intriguing article in Wired featured a story where police used DNA to predict a suspect’s face and then tried running facial recognition technology on the photo.

BACKGROUND FACTS

In 2017, detectives working a cold case at the East Bay Regional Park District Police Department got an idea, one that might help them finally get a lead on the murder of Maria Jane Weidhofer. Officers had found Weidhofer, dead and sexually assaulted, at Berkeley, California’s Tilden Regional Park in 1990. Nearly 30 years later, the department sent genetic information collected at the crime scene to Parabon NanoLabs—a company that says it can turn DNA into a face.

Soon, Parabon NanoLabs provided the police department with the face of a potential suspect, generated using only crime scene evidence.

The image Parabon NanoLabs produced, called a Snapshot Phenotype Report, wasn’t a photograph. It was a 3D representation of how the company’s algorithm predicted a person could look given genetic attributes found in the DNA sample.

The face of the murderer, the company predicted, was male. He had fair skin, brown eyes and hair, no freckles, and bushy eyebrows. A forensic artist employed by the company photoshopped a nondescript, close-cropped haircut onto the man and gave him a mustache—an artistic addition informed by a witness description and not the DNA sample.

In 2017, the department published the predicted face in an attempt to solicit tips from the public. Then, in 2020, one of the detectives  asked to have the rendering run through facial recognition software. It appears to be the first known instance of a police department attempting to use facial recognition on a face algorithmically generated from crime-scene DNA.

At this point it is unknown whether the Northern California Regional Intelligence Center honored the East Bay detective’s request.

DOES THIS SEARCH VIOLATE CONSTITUTIONAL RIGHTS?

Some argue this search emphasizes the ways that law enforcement is able to mix and match technologies in unintended ways. In short, this search uses untested algorithms to single out suspects based on unknowable criteria.

“It’s really just junk science to consider something like this,” Jennifer Lynch, general counsel at civil liberties nonprofit the Electronic Frontier Foundation, tells WIRED. Running facial recognition with unreliable inputs, like an algorithmically generated face, is more likely to misidentify a suspect than provide law enforcement with a useful lead, she argues.

“There’s no real evidence that Parabon can accurately produce a face in the first place . . . It’s very dangerous, because it puts people at risk of being a suspect for a crime they didn’t commit.” ~Jennifer Lynch, General Counsel at Electronic Frontier Foundation.

According to a report released in September by the US Government Accountability Office, only 5 percent of the 196 FBI agents who have access to facial recognition technology from outside vendors have completed any training on how to properly use the tools. The report notes that the agency also lacks any internal policies for facial recognition to safeguard against privacy and civil liberties abuses.

In the past few years, facial recognition has improved considerably. In 2018, when the National Institute of Standards and Technology tested face recognition algorithms on a mug shot database of 12 million people, it found that 99.9 percent of searches identified the correct person. However, the NIST also found disparities in how the algorithms it tested performed across demographic groups.

A 2019 report from Georgetown’s Center on Privacy and Technology was written by Clare Garvie, a facial recognition expert and privacy lawyer. She found that law enforcement agencies nationwide have used facial recognition tools indiscriminately. They’ve tried using images that include blurry surveillance camera shots, manipulated photos of suspects, and even composite sketches created by traditional artists.

“Because modern facial recognition algorithms are trained neural networks, we just don’t know exactly what criteria the systems use to identify a face . . . Daisy chaining unreliable or imprecise black-box tools together is simply going to produce unreliable results. We should know this by now.” ~ Clare Garvie, Esq.

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 We Ban Hog-Tying By Police?

Bellingham Defense Attorney, Legislation, Mount Vernon Criminal Defense Attorney, Police Misconduct, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Report: Most of America's largest police departments allow officers to choke, strangle, and hog-tie people | The Week

King5 News reports that Democratic Sen. Yasmin Trudeau has sponsored a bill banning hog-tying by police. The restraint technique has long drawn concern due to the risk of suffocation, and while many cities and counties have banned the restraint technique, it remains in use in others.

The legislation comes nearly four years after Manuel Ellis, a 33-year-old Black man, died facedown with his hands and feet cuffed together behind him. The case that became a touchstone for racial justice demonstrators in the Pacific Northwest.

Senator Trudeau said she doesn’t want anyone else to experience the “dehumanization” Ellis faced before his death.

“How do we move through the need for folks to enforce the laws, but do it in a way where they’re treating people the way we expect, which is as human beings?” ~Senator Yasmin Trudeau

In the last four years, states across the U.S. have rushed to pass sweeping policing reforms.  The legislation was prompted by racial injustice protests and the death of George Floyd and others at the hands of law enforcement. Few have banned prone restraint, according to the National Conference of State Legislatures.

The attorney general’s office in Washington recommended against using hog-tying in its model use-of-force policy released in 2022. At least four local agencies continue to permit it, according to policies they submitted to the attorney general’s office that year.

The Pierce County Sheriff’s Department said it still allows hog-tying but declined to comment on the bill. One of the department’s deputies was involved in restraining Ellis, whose face was covered by a spit-hood when he died.

THOSE SUPPORTING THE LEGISLATION

Trudeau, who represents Tacoma, said she made sure Ellis’ sister, Monet Carter-Mixon, approved of her efforts before introducing the bill. Democratic Sen. John Lovick, who worked as a state trooper for more than 30 years, joined Trudeau in sponsoring the bill. Republican Rep. Gina Mosbrucker, a member of the House public safety committee, said she looked forward to learning more about the legislation.

“If it does turn out that this form of restraint for combative detainees is dangerous in any way, then I think the state should put together a grant and some money to buy and train on alternative methods to make sure that the officer and the person arrested is safe.” ~Republican Rep. Gina Mosbrucker

Please review my Search & Seizur 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.

Mass Incarceration Deepens Inequality and Harms Public Safety

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

Local Impacts of Mass Incarceration: A Community Round Table - Center for the Humanities and the Public Sphere

A report from The Sentencing Project explores laws and policies that exacerbate inequality and disproportionately overburden communities of color. Specifically, the report gives the following examples:

  • Fines, fees, and predatory pricing exacerbate the economic precarity of justice-involved Americans and their families.
  • Employment during incarceration comes with low, and sometimes zero, wages. The average minimum wage for the most common forms of prison labor is $0.13/ hour. The average maximum is $0.52/ hour.
  • A criminal conviction creates lifelong barriers to securing steady employment and housing. Many states disqualify people with felony drug convictions from cash assistance and food stamps. Nearly all states also restrict voting rights for people with criminal convictions. Yet research has shown that post-incarceration employment, access to food stamps, and voting are associated with lower recidivism rates.
  • Finally, the high cost of mass incarceration comes at the expense of investing in effective crime prevention and drug treatment programs. These laws and policies exacerbate the marginalization of justice-involved people—who are disproportionately people of color—by eroding the economic and social buffers against crime and increasing the likelihood of police contact.

WHAT ARE THE SOLUTIONS?

Fortunately, jurisdictions around the country have initiated promising reforms to reduce the direct and indirect harms of criminal convictions and redirect resources to more effective interventions:

  • To promote beneficial contact with support networks, some jurisdictions have made all phone calls from their prisons free.
  • To end the injustices associated with prison labor, many jurisdictions have removed language allowing “slavery and involuntary servitude” in the case of punishment for a crime. Advocates are still working to ensure that this change bans forced and unpaid labor among incarcerated workers.
  • To reduce labor market discrimination resulting from a criminal record, a majority of states and many cities “Ban the Box.” This action removes the question about conviction history from initial job applications and delays a background check until later in the hiring process.
  • A majority of states no longer impose bans on food stamps or cash assistance for people with a felony drug conviction.
  • Finally, Washington, DC, has joined Maine, Vermont, and Puerto Rico in fully untangling voting rights from criminal legal involvement by permitting its prison population to vote.
  • The federal government and states are also increasing investments in crime prevention.

My opinion? For the criminal legal system to uphold the principle of justice, policymakers and practitioners will need to protect and expand these reforms.

Also, prison is a terrible place. 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.

9th Circuit: Harassment is a Crime of Violence

9th Circuit Court of Appeals, Bellingham Defense Attorney, Federal Crimes & Prosecutions, felony, Harassment, Immigration, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Immigration Courts Further Limit Legal Help Available to People Facing Deportation

In Rodriguez-Hernandez v. Garland, the Ninth Circuit Court of Appeals held that a Washington conviction for Harassment is a crime of violence. This is because the statute requires the “threatened use of physical force against the person or property of another.” As such, being convicted of Harassment risks deportatation for non-citizens.

BACKGROUND FACTS

In 2015, Rodriguez-Hernandez was an immigrant living in the United States. He served with a notice to appear alleging removability on the basis that he was not admitted or paroled into the United States (U.S.). Apparently, he faced persecution in Mexico due to threats made against his family. Rodriguez-Hernandez applied for cancellation of removal and sought asylum in the U.S.

Among other things, the 9th Circuit addressed whether Rodriguez-Hernandez’s Harassment conviction was for a crime of violence under federal law.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit began by saying that a noncitizen convicted of an aggravated felony is a deportable offense. It also discussed Washington’s Harassment statute in depth as follows:

RCW § 9A.46.020(1) provides that: (1) A person is guilty of harassment if: (a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or (ii) To cause physical damage to the property of a person other than the actor; or (iii) To subject the person threatened or any other person to physical confinement or restraint; or (iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and (b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out (emphasis supplied).

Next, the 9th Circuit addressed whether Harassment was a violent offense:

“A crime of violence requires physical force against the person or property of another . . . However, a crime of violence “does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality. The standard is force capable of causing physical pain or injury. . . .”  ~9th Circuit Court of Appeals

With that reasoning, the 9th Circuit held that Rodriguez-Hernandez’ threats against his family were, in fact, crimes of violence. Therefore, because Rodriguez-Hernandez was convicted of a crime of violence, he was ineligible for cancellation of removal or asylum.

My opinion?

The 9th Circuit’s Rodriguez-Hernandez v. Garland, certainly makes Washington’s Harassment statute far more egrigious for citizens and non-citizens alike. It could possibly have the following impacts and consequences on current charges:

  • Misdemeanor harassment with a DV tag is now a deportable “crime of domestic violence,” regardless of sentence.
  • Felony harassment, under any subsection, with a sentence imposed of one year or more will be an aggravated felony “crime of violence.” [Previously only the “threaten to kill” subsection had been held to be a “crime of violence.”]
  • Felony harassment-DV will be a deportable “crime of domestic violence” regardless of sentence imposed.

Even worse, the decision could have terribly negative impacts on non-citizens with prior convictions:

  • Misdemeanor harassment-DV convictions:
    • If conviction occurred prior to July 22, 2011 and the sentence imposed (regardless of time suspended) was 365 days it will be an aggravated felony “crime of violence.” Aggravated felonies carry the most severe immigration consequences and bar eligibility for any discretionary relief from removal.
    • Regardless of date of conviction, it may now be deemed a deportable crime of domestic violence.
  • Felony harassment convictions:
    • Any felony harassment conviction with a sentence imposed (regardless of time suspended) of one year or more may be deemed an aggravated felony crime of violence. Previously, only felony harassment “threat to kill” was considered an aggravated felony crime of violence.
    • Any felony harassment-DV conviction may now be deemed a deportable crime of domestic violence, regardless of sentence.

How this decision impacts individual non-citizen defendants will depend on their current immigration status, their immigration and criminal history, and other individual circumstances. For case-specific information please consult with other immigration counsel knowledgeable in the interplay between criminal and immigration law.

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.

High Court Withdraws Defendant’s Guilty Plea Due to Prosecutorial Misconduct

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Skagit County Criminal Defense, Whatcom County Criminal Defense

Most judges believe the criminal justice system suffers from racism - The National Judicial College

In State v. Horntved, the WA Court of Appeals held the prosecutor’s threatening statements to an African-American defendant during plea negotiations rendered the defendant’s plea involuntary.

FACTUAL BACKGROUND

Mr. Horntvedt is an African-American. He faced multiple charges of sex trafficking, attempted sex trafficking, and promoting prostitution. The charges resulted from a multi-jurisdiction human trafficking investigation. The State intended to seek a 66-year sentence if the case went to trial. However, it offered Mr. Horntvedt a plea agreement specifying a 25-year sentence recommendation.

On March 26, 2021, a meeting occurred at the Franklin County Corrections Center to discuss terms of a plea offer. Attendees included Mr. Horntvedt, the deputy prosecutor, Mr. Horntvedt’s attorney, and two corrections deputies. With the exception of Mr. Horntvedt, every person in attendance was white. The meeting was recorded and later transcribed.

During the meeting, the prosecuting attorney advised Mr. Horntvedt that if he took his case to trial, his jury would “not necessarily be a jury of his peers.” Gesturing to herself and Mr. Horntvedt’s attorney, both of whom are white, the prosecuting attorney stated, “It’ll be a jury of our peers, be a lot of white folks.” The trial court observed that the prosecuting attorney’s comments were improper. However, it nevertheless denied Mr. Horntvedt’s motion to withdraw his plea, finding the plea was knowing, voluntary, and intelligent.

As Mr. Horntvedt was leaving the meeting, he told one of the corrections officers, “That’s some racist shit right there.”

GUILTY PLEA

Soon after, Mr. Horntvedt agreed to plead guilty in accordance with the State’s offer. At the April 27, 2021, hearing, the trial court explained the significance of a guilty plea and then asked Mr. Horntvedt if anyone threatened him to get him to plead guilty. Mr. Horntvedt replied, “No.” Defense counsel then interjected, “I will just make a brief record that Mr. Horntvedt] was concerned about a statement that was made out of court, but we discussed that and that’s not really a threat. It was just a statement of fact, and we’ll leave it at that for now.”

The court did not inquire into the out-of-court statement. The court accepted Mr. Horntvedt’s guilty plea and found it was “knowingly, intelligently, and voluntarily made; not the product of fear, coercion, or ignorance.” The court ordered the State to prepare a presentence investigation report and continued the case for sentencing.

MOTION TO WITHDRAW GUILTY PLEA

At the start of the June 2, 2021, Sentencing Hearing, defense counsel informed the court that Mr. Horntvedt’s grandmother wished to play a 60-second excerpt from the recorded remarks made by the prosecutor during the plea negotiation meeting.

The court asked a few questions about the nature of the recording. It then told defense counsel his client had a choice: “Your client either wants to adhere to the plea, or he wants to attempt to withdraw it.” Defense counsel conferred with Mr. Horntvedt, then informed the court that his client wanted to withdraw the plea. Defense counsel later filed a written motion to withdraw the guilty plea on behalf of Mr. Horntvedt. In an accompanying declaration, defense counsel stated the following:

“When Mr. Horntvedt entered into the plea agreement, there was an indication that he entered into the plea agreement freely and voluntarily without coercion . . . . However, Mr. Horntvedt declared, a few days later, he no longer felt that he entered his plea agreement freely and voluntarily.” ~Defense Counsel for Mr. Horntvedt 

After considering the record, the trial court held a hearing with the parties and denied the motion to withdraw the plea. The court found the prosecutor’s statements “improper.” Nevertheless, the court determined Mr. Horntvedt’s guilty plea was knowing, voluntary, and intelligent. The court then sentenced Mr. Horntvedt to serve 25 years of confinement and 36 months of community custody.

Mr. Horntvedt appealed his convictions for felony sex trafficking. He argued his guilty plea was procured through an improper appeal to racial bias.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began its analysis by stating a trial court must permit a defendant to withdraw their plea in order to correct a “manifest injustice” under CrR 4.2(f)

“In this context, a manifest injustice refers to an injustice that is obvious, directly observable, overt, not obscure,” said the Court of Appeals. “One type of manifest injustice that warrants withdrawal of a plea occurs when a plea is involuntary.” The Court explained that a plea may be involuntary due to circumstances such as misinformation, threats, or mental coercion. Additionally, the Court emphasized a defendant’s constitutional right to due process protects against entry of an involuntary plea.

“Mr. Horntvedt argues his plea was involuntary in violation of due process because it was predicated on race-based prosecutorial misconduct. Our case law has yet to address whether this type of prosecutorial misconduct can render a plea involuntary. We conclude that it can. And here, based on an objective review, we conclude the prosecutor’s invocation of race to leverage a guilty plea rendered the plea involuntary as a matter of law.” ~WA Court of Appeals

The Court reasoned that fact that although the prosecutor’s comments were an apparently intentional appeal to racial bias, it does not mean that the prosecutor was actually motivated by animus. The Court stated that although misguided, the prosecutor’s comments may have been well intentioned. “Undoubtedly the prosecutor believed the plea offer was in Mr. Horntvedt’s best interests,” said the Court. “And she appeared motivated to go out of her way to make sure Mr. Horntvedt understood the risks involved in taking his case to trial.”

Nevertheless, stated the Court, the prosecutor’s apparently benign intentions were irrelevant to the objective observer standard. The objective observer analysis is concerned with the impact of racial bias—not a person’s intent.

With that the Court of Appeals remanded the trial court to allow Mr. Horntvedt to withdraw his plea and, if he withdraws it, to set this matter for trial.

My opinion? Good decision. All members of the legal community—law enforcement, attorneys, and judges— bear responsibility for addressing racial inequities in our justice system. This is hard work. None of us has all the answers and all of us will sometimes get things wrong. Yet we must move forward with humility, compassion, and dedication to constant improvement. Mr. Horntvedt has established a manifest injustice impaired the voluntariness of his guilty plea. He was rightfully given the option to withdraw.

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

WA Privacy Act Does Not Suppress or Protect Audio Recordings of Sexual Assault

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , , , ,

Recorded conversations: A warning and call for change - Tampa Bay Business & Wealth

In State v. Kamara, the WA Court of Appeals held that the recorded sounds of a sexual assault are not a “private conversation” as defined by the Privacy Act.  Therefore, a recording of such sounds, made without the consent of the defendant, is admissible at trial.

BACKGROUND FACTS

Under Washington’s Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. And evidence obtained in violation of the privacy act is typically inadmissible at trial.

Mr. Kamara and B.T. met at a mutual friend’s birthday party in July 2019. B.T. had seen Kamara before at various events with members of the Liberian community. B.T. knew Kamara as JR. After the party, Kamara sent B.T. a friend request on Facebook. They began messaging each other on Facebook. Kamara asked B.T. out but she declined because she was in a relationship. Kamara was persistent and asked several more times.

Because Kamara kept pushing, on August 30, 2019, B.T. agreed to meet with him. Once at Kamara’s apartment, Kamara offered B.T. a drink. B.T. declined, but Kamara poured her some wine. They watched a program on TV. After some time, Kamara sat next to B.T. on the couch and then he began putting his hands on her, stroking down her arm, and leaning against her.

B.T. got up to use his bathroom and give herself some time to think. While in the bathroom, B.T. activated a recording app on her phone. At first, she just played with it, recording sounds and then listening. The next time she activated it, she got a notification and switched to a different app on her phone without stopping the recording.

When she returned to the living room, B.T. sat farther away from Kamara on the couch and continued scrolling through her social media to distract herself. Kamara moved closer and began making sexual remarks and advances toward B.T. B.T. told him she had to go, since she had work the next morning, but Kamara insisted she stay until 2:00 a.m. B.T. told Kamara “no” multiple times and told Kamara not to touch her.

B.T. told Kamara she would just nap on the couch until he took her home at 2:00 a.m., but he wanted her to go to his room. Kamara forced B.T. into his bedroom by pulling her off the couch and pushing her back until she was pushed onto his bed. He pinned her arms to the bed and then used his full body weight on her so she couldn’t move. He pulled her pants down and raped her while she cried and repeatedly told him “no, don’t, and I don’t want to do this.” B.T. tried to fight him off, but did not succeed.

Sounds of the ordeal were audio-recorded on B.T.’s phone.

After B.T. continued to cry and beg Kamara to stop, he finally got off of her and walked out of the room. B.T. testified that she felt defeated. When Kamara returned and started touching her again, B.T. didn’t fight, she “just let him do what he had to do.” Kamara then offered to take her home. Once home, B.T. texted her best friend about what had happened.

The next day, B.T.’s friend took her to Auburn Regional Medical Center where B.T. underwent a sexual assault examination. Afterward, she discovered the audio recording on her cell phone. She emailed the recording to police. Kamara was arrested and charged with rape in the second degree.

THE JURY TRIAL

Before trial, Kamara moved under CrR 3.6 to suppress the audio recording as inadmissible under Washington’s privacy act, RCW 9.73.030. The trial judge found that the contents of the recording do not capture a conversation.

“What is recorded is not an exchange of information,” said the trial judge. “Instead, what it captures is an act of sexual assault.” The entire recording was played for the jury. As a result, the jury found Kamara guilty of rape in the second degree.

Kamara appealed his conviction. He argued that the trial judge erred in admitting the victim’s cell phone audio recording of the rape because it was a private conversation made without his consent and violated the privacy act.

COURT OF APPEALS’ ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Washington’s Privacy Act is considered one of the most restrictive in the nation. Under the Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. Information obtained in violation of the act is inadmissible in any civil or criminal case.

The Court discussed whether a recorded communication is “conversation.” Following that, it discussed whether the communication between Kamara and B.T. was a conversation.

“In determining whether a communication between individuals constitutes a ‘conversation’ under the privacy act, courts use the ordinary meaning of the term: “oral exchange, discourse, or discussion.” State v. David Smith, 85 Wn.2d 840, 846, 540 P.2d 424 (1975). Recordings of sounds that do not constitute a ‘conversation’ do not implicate the privacy act. David Smith, 85 Wn.2d 846. In particular, sounds of an assaultive act are not a conversation protected by the privacy act; a recording of such noise is admissible.” ~WA Court of Appeals.

Based on its review of the recording, the Court of Appeals agree with the trial court’s conclusion that the last nine minutes of the recording do not constitute a conversation, and instead record an assault.

But there is no “exchange of ideas and words” in the last nine minutes of the recording. And unlike in both Smith cases, the recording did not capture brief oral exchanges between B.T. and Kamara.

With that, the Court of Appeals agreed with the trial court that the last nine minutes of the recording contains the sounds of a sexual assault being committed. “This portion of the recording is not a private conversation as contemplated by the privacy act,” said the COurt of Appeals. It affirmed Kamara’s conviction and rejected his appeal.

My opinion? Washington courts are very protective of citizens’ privacy. Privacy issues are often implicated when law enforcement uses any form of electronic surveillance. True, Washington’s one-party consent law is among the most restrictive in the nation. Most legal and policy issues in this area involve the non-consensual acquisition of “private” communications. This is a highly sensitive area because it involves both fear of “big brother” and concerns for privacy.

Clearly, however, situations such as this case circumvent the protections of WA’s Privacy Act.

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.

Firearms Bill Requiring 10-day Waiting Period & Safety Training In Effect January 1st, 2024

Bellingham Defense Attorney, Firearm, Legislation, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Firearms Safety Course | West Boylston, MA

Effective January 1, 2024, HB 1143 shall go into effect. The legislation imposes additional requirements for the sale and transfer of firearms, including the following provisions:

  • Fingerprinting and background checks are required for all firearm sales and transfers, with some limited exceptions (RCW 9.41.113). Background checks are to be performed through the Washington State Patrol Firearms Background Check Program, a centralized stated system, rather than through local law enforcement agencies.
  • A 10-day waiting period is required between the purchase and delivery of the firearm to the purchaser.
  • The purchaser must provide proof of having completed a recognized firearm safety training program within the last five years.

Proponents of HB 1143 argue the law rightfully requires people to wait the prescribed “cooling off” period even if they’ve passed a more immediate background check. The intent of the legislation is aimed in part at deterring people from rushing to harm themselves or others with newly purchased weapons during periods of sudden distress or anger.

Its requirements are similar to those for a concealed weapons permit. Also, fourteen states have similar requirements and have found that they have reduced fatalities by 14%. The requirements could also interrupt suicide attempts, which are often impulsive decisions. Suicides constitute 75% of gun deaths in Washington.

Opponents say the legislation denies law-abiding citizens their Second Amendment right to acquire firearms unless they present proof of completion of official, sanctioned firearms training within the past five years, which they must complete at their own expense. Also, the 10-day waiting period is arbitrary on prospective gun owners taking possession of their firearms. They say the delay is longer or indefinite if the State fails to complete background check during that time. Finally, the Department of Licensing will also maintain a database (registry) of gun owners and their personal data, despite the agency having previously suffered a data breach affecting 650,000 citizens just last year.

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

FBI Data: Crime Has Actually Declined Significantly

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

Is crime rising in the U.S.? Here's what data can and can't tell us : NPR

NBC News reports that crime in the United States has declined significantly over the last year. Apparently, new FBI data contradicts a widespread national perception that law-breaking and violence are on the rise. A Gallup poll released this month found that 77% of Americans believe crime rates are worsening. However, new FBI data and other statistics show these perceptions are mistaken.

THE NUMBERS

The FBI data, which compares crime rates in the third quarter of 2023 to the same period last year, found that violent crime dropped 8%, while property crime fell 6.3% to what would be its lowest level since 1961, according to criminologist Jeff Asher, who analyzed the FBI data.

Murder plummeted in the United States in 2023 at one of the fastest rates of decline ever recorded, Asher found, and every category of major crime except auto theft declined.

“I think we’ve been conditioned, and we have no way of countering the idea” that crime is rising . . . It’s just an overwhelming number of news media stories and viral videos — I have to believe that social media is playing a role.” ~Criminologist Jeff Asher

The FBI’s quarterly numbers cover about 78% of the U.S. population and don’t give as full a picture as the more comprehensive annual report the FBI puts out once a year. But Asher said the quarterly reports in the past have hewed fairly close to the annual ones.

The most recent annual report, released in October, covered 94% of the country and found that violent crime in 2022 fell back to pre-pandemic levels, with murder dropping 6.1%. Asher maintains a separate database of murder in big cities which found that murder is down 12.7 percent this year, after rising during the pandemic.

FBI data doesn’t have a separate category for retail theft. It falls under “larceny,” which declined overall last year, according to the latest numbers. Retail theft is widely believed to have skyrocketed in some cities, and the industry says it is at “unprecedented” levels. But the data doesn’t necessarily support that thesis.

FBI numbers are not the only measure of crime. The annual Justice Department survey of criminal victimization in 2022 found that a lot of crime goes unreported, and that more people reported being victims of violent crime in 2022 than in 2021. But Asher has documented questions about that survey’s methodology.

WHY DO PEOPLE BELIEVE CRIME HAS INCREASED?

Asher believes there is a measure of partisanship at work. Republicans seem more ready to believe crime is increasing while Democrats hold the White House.

Asher and other analysts say the natural tendency of the news media to highlight disturbing crime stories — and the tendency of those stories to go viral on social media — presents a false but persuasive picture. Videos of flash mobs on shop lifting sprees or carjackings in broad day light are more ubiquitous, even if those crimes are not.

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.

Faulty Body Scanners at Whatcom County Jail

Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

X-ray scanners stop over 1,000 illegal items entering prisons - GOV.UK

According to the Bellingham Herald, faulty body scanners at the Whatcom County Jail are letting drugs and other contraband into the lockup and must be replaced.

“Within the last two weeks, we’ve had three overdoses related to fentanyl that’s been smuggled into the facility. This is becoming an increasing problem, and those scanners are one of the main tools that we have to detect contraband, both weapons and drugs being smuggled into the facility by persons coming in to the facility through the booking process.” ~WCSO Undersheriff Doug Chadwick

According to previous Bellingham Herald reporting, those scanners were bought in 2018 and 2019 to keep drugs, weapons, cigarettes and lighters out of the jail. Unfortunately, the company that makes the scanners isn’t servicing or maintaining them. Thus far in 2023 there have been 13 overdoses in Whatcom County jail facilities.
My opinion? These security breaches should not be happening. Hopefully, the newly-passed sales tax to pay for a new Whatcom County jail will bring new and improved scanners. Proposition 4 – which passed by 66% in Whatcom County – was the third jail measure Whatcom County had put before voters since 2015. The 2015 plan was for a 521-bed jail at a cost of $125 million. After voters rejected that proposal, county leaders came back in 2017 with 480 beds and a $110 million price tag. Voters rejected this smaller, cheaper jail even more resoundingly.
Under the law, correctional officers have more leeway to order intrusive searches of inmates in a county jail or prison. Along with body scanners, officers can perform a strip search if the search is related to reasonable objectives, such as safety and security. As a result, a defendant’s Constitutional rights against unlawful search and seizure isn’t available if they’re in custody.
Police can perform strip searches without the factors that would give rise to a suspicion that the arrestee possessed concealed contraband. This is allowed, even though nothing about their case would lead police to believe they had anything dangerous or prohibited on their person. Making matters worse, it’s a felony for an inmate to possess weapons and/or contraband.
Jail is a terrible place. 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.