Tag Archives: Bellingham Criminal Defense Attorney

The Role of the Prosecutor

The Role of the Prosecutor

Ever wondered about the role of a prosecutor and their work within the community? Check out our new video!Thank you to the Karpel Foundation and the San Diego County District Attorney Office for their support in making this video.

Posted by National District Attorneys Association on Thursday, August 8, 2019

Have you ever thought about the role of a prosecutor and their work within the community?

Well, look no further. The National District Attorneys Association released a video titled, “The Role of the Prosecutor.”

Overall, it’s a good video. It accurately shows how prosecutors go about presenting cases against individuals who are suspected of breaking the law, initiating criminal investigations, conducting trials and recommending the sentencing of offenders.

Although defense attorneys and prosecutors are adversaries in the criminal justice system, it’s extremely important for them to develop and maintain cordial relationships. According to the Department of Justice’s Bureau of Justice Assistance, “The overwhelming majority (90 to 95 percent) of cases result in plea bargaining.”

Plea bargains are agreements between defendants and prosecutors in which defendants agree to plead guilty to some or all of the charges against them in exchange for concessions from the prosecutors. These agreements allow prosecutors to focus their time and resources on other cases, and reduce the number of trials that judges need to oversee.

In plea bargains, the defense lawyer and prosecutor discuss the case, and one or the other proposes a deal. The negotiations can be lengthy and conducted only after both parties have had a chance to research and investigate the case. Or, they can be minute-long exchanges in the courthouse hallway. Prosecutors usually agree to reduce a defendant’s punishment. They often accomplish this by reducing the number of charges of the severity of the charges against defendants. They might also agree to recommend that defendants receive reduced sentences. In this process, good criminal defense attorneys are persuasively effective at explaining the facts, the law and their defense theory.

Great criminal defense attorneys, however, have decent working relationships with prosecutors. These relationships are built on years of mutual respect and working on cases together in a straightforward, honest, ethical manner.  Often, prosecutors know nothing more than the police reports and criminal histories of the defendants they bring charges against. They lack context and insight into why the parties involved criminal investigations behave certain ways. Based on that working relationship, great criminal defense attorneys are adept at humanizing their clients and persuading an otherwise hardened prosecutor to consider the deeper complexities of a case.

Please contact my office if you, a friend or family member face criminal charges. It’s important to hire an experienced criminal defense attorney like myself who appreciates the role of the prosecutor and works with them on a regular basis.

Violent Crime Decreases – Except Rape

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Excellent article by Jamiles Lartey and Weihua Li of the Marshall Project describes new evidence showing that despite the overall drop in violent crime, rape rises for the sixth straight year.

The 2018 National Crime Victimization Survey (NCVS), released Tuesday, is managed by the Bureau of Justice Statistics at the U.S. Justice Department. According to the authors, the data suggests that the violent crime rate in the U.S. remains on a decades-long downward trend, falling by 3.9 percent in 2018. Overall, the violent crime rate has plunged by more than 50 percent since the early 1990s. The drops came across categories of violent offenses, including murder, non-negligent manslaughter and robbery, and property crimes like burglary, larceny and vehicle thefts, while aggravated assault numbers remained about flat.

However, rape and sexual assault crimes are increased slightly for 2018. This follows consistent trends that sexual assault crimes have risen for the last six years.

So why the increase?

Apparently, in 2013, the FBI changed its outdated parameters of rape—then defined as the forcible “carnal knowledge of a female”—to a more modern definition structured around consent, rather than force. Ever since, the rate has been on a steady surge, up more than 18 percent in that period.

“It’s not yet clear why rapes have risen so swiftly. It’s a notoriously underreported crime and many have theorized that the changing social atmosphere, including the #metoo movement and increased awareness around campus rape, may be prompting survivors to report at a higher rate.”

Kristen Houser, a spokesperson for the National Sexual Violence Resource Center, said another possible outcome of that social and cultural change is assault survivors being better able to simply understand that what they’ve experienced was in fact a crime.

“We may well have more ability to recognize experiences for the crimes that they are and be able to name them, which I don’t think has been true historically. And that’s a result of more people talking about it, reporting on it, reading it, etc.,” Houser said.

Contact my office if you, a friend or family member are charged with a sexual assault. These charges are debilitating. Simply being charged negatively impacts reputations, employment opportunities and freedom. Therefore, it’s imperative to hire an experienced and effective defense attorney who will conduct proactive investigations, argue pretrial motions and defend your rights at trial.

Reconsider Long Prison Sentences?

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Excellent article in Inside Sources by director of Strategic Initiatives at The Sentencing Project argues our society must reconsider long prison sentences.

Gotsch writes that a measure of rationality has come to federal sentencing after President Trump signed the First Step Act. The legislation has led to almost 1,700 people receiving sentence reductions, most of whom have been freed. Ninety-one percent are African American. Douglas and dozens of others sentenced to die in prison are among the beneficiaries.

The U.S. Sentencing Commission reports that the resentencing provisions of the First Step Act reduced the average sentence of 20 years by an average of six years for those who qualified.

“The reductions, while modest, are profound for the people and families ensnared by long prison terms, and who have been generally left out of criminal justice reforms until now,” writes Gotsch.

“Congress should take its next step to address a broader cohort of incarcerated people with lengthy sentences.”

Gotsch’s arguments hinge on the fact that lengthy prison sentences seem inappropriate for prison populations that essentially “age out” of crime. Half of the people in federal prisons are serving sentences longer than 10 years. Almost 20 percent of the population is more than 50 years old.

“Criminal justice research has long confirmed that people generally age out of crime, so long sentences provide diminishing returns for public safety,” says Gotsch. “Tax dollars that could be used to invest in youth, improve schools, expand drug treatment and medical and mental health care, are instead invested in prisons to incarcerate a growing elder population despite their limited likelihood of recidivism. Policy should reflect the research.”

The Second Look Act, newly introduced sentencing reform legislation from Senator Cory Booker and Representative Karen Bass, follows the lead of experts on crime and punishment and offers a transformational approach. The bill seeks to curb long sentences by offering a sentencing review by a federal judge to people with sentences longer than 10 years. Individuals who have served at least 10 years must show they are rehabilitated and are not a threat to public safety to qualify for a sentence reduction. People who are 50 or older would have a presumption of release because of their substantially lower recidivism rates.

“For the bipartisan lawmakers in Washington, and the 2020 presidential candidates who have pledged to address the problems in the criminal justice system, a broader approach to challenge mass incarceration and promote public safety is long overdue,” says Gotsch.

Please contact my office if you, a friend or family member face criminal charges which could include a prison sentence. It’s very important to hire an experienced, competent competent attorney who can either prepare a strong case for jury trial or navigate a plea deal which avoids prison.

WA Supreme Court Invalidates “Community Caretaking” Search

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In State v. Boissellethe WA Supreme Court held a police officer’s warrantless entry into the defendant’s duplex in this case violated article I, section 7 of the WA Constitution because their emergency aid function search was a unlawful pretext for a criminal investigation as the officers were suspicious, if not convinced, that a crime had taken place before entering the unit.

BACKGROUND FACTS

Law enforcement officers were dispatched to Mr. Boisselle’s home after two anonymous 911 calls reported that a man shot and possibly killed someone at the residence. While responding to the calls, the officers learned that the residence was related to an ongoing missing person/homicide investigation. Unable to determine whether someone was alive inside the home, the officers entered the residence and conducted a warrantless search, discovering evidence of a murder therein. Boisselle  was arrested and jailed.

Boisselle moved to suppress the evidence, arguing that the officers’ warrantless search was unlawfully pretextual  under article I, section 7 of the Washington Constitution. The trial court denied Boisselle’s motion, concluding that the officers’ search fell within the emergency aid function of the community caretaking exception to the warrant requirement. Following a jury trial, Boisselle was convicted of second degree murder and second degree unlawful possession of a firearm. The Court of Appeals affirmed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

I. The Community Caretaking Exception

First, the WA Supreme Court agreed that the application of the community caretaking exception has become muddled, and took this opportunity to clarify the appropriate factors in determining whether an officer has exercised his or her emergency aid community caretaking function.

“The community caretaking exception is one such exception to the warrant requirement,” said the Court. “Under the community caretaking exception, law enforcement officers may make a limited invasion of constitutionally protected privacy rights when it is necessary for officers to perform their community caretaking functions.” The Court explained this exception recognizes that law enforcement officers are “jacks of all trades” and frequently engage in community caretaking functions that are unrelated to the detection and investigation of crime, including delivering emergency messages, giving directions, searching for lost children, assisting stranded motorists, and rendering first aid.

Next, the Court created the following multi-part test for evaluating whether an officer exercised his or her community caretaking function when conducting a warrantless search:

(1) Was the community caretaking exception used as a pretext for criminal investigation? If the court finds pretext, the analysis ends. If the court determines that the exception was not a pretext, the analysis continues is question is answered negatively, the analysis continues.

(2)(a) If the search fell within an officer’s general community caretaking function, such as the performance of a routine check on health or safety, the court must determine whether the search was “reasonable.” “Reasonableness” depends upon a balancing of a citizen’s privacy interest in freedom from police intrusion against the public’s interest in having police perform a community caretaking function.

(2)(b) If the search fell within an officer’s emergency aid function which arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm, the court, before determining whether the search is “reasonable,” must first determine whether: “(1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.”

II. The Warrantless Search of Boisselle’s Home Was Pretextual.

The Court reasoned that an unlawful pretextual search occurs when occurs when officers rely on some legal authorization as a mere pretense to dispense with a warrant when the true reason for the seizure is not exempt from the warrant requirement. When determining whether a given search is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.

“Viewing the totality of the circumstances, we are unconvinced that the officers’ search of Boisselle’s home was not a pretext for a criminal investigation.”

The Court reasoned that here, law enforcement’s involvement began because of two anonymous 911 calls reporting a crime. When the officers arrived at Boisselle’s duplex unit, they noticed a smell that could be attributed to a decomposing body, and they sought to confirm whether a crime had been committed or if a crime victim was inside. The officers were eventually able to see into the unit and saw signs of a struggle and missing carpet, which could be a sign that someone sought to cover up a crime scene.

“Taken together, these facts demonstrate that the officers were suspicious, if not convinced, that a crime had taken place,” said the Court. “Because of the officers significant suspicions, the search of Boisselle’s home was necessarily associated with the detection and investigation of criminal activity.”

Accordingly, the Court held the officers’ warrantless search did not fall under the emergency aid function of the community caretaking exception, and it violated article I, section 7 of the WA Constitution. Thus, the trial court erred in denying Boisselle’s motion to suppress. “We reverse the Court of Appeals and remand to the trial court for further proceedings,” said the Court.

My opinion? Grisly as the facts appear to be, the Court reached the right decision. Freedom from government intrusion lies at the very foundation of Western law and culture, and is one of our nation’s most cherished freedoms. That’s why we insist on police obtaining warrants, unless exigent circumstances dictates otherwise.

Please contact my office if you, a friend or family member were charges with a crime involving an unlawful pretextual search. Hiring competent defense counsel is the first and best step toward achieving justice.

Whatcom County’s Inmate Transport & Housing Contracts In Jeopardy

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Excellent article by Denver Pratt of the Bellingham Herald describes how the Yakima County Department of Corrections will not accept inmates from Whatcom County next year.

Years ago, the contracts were negotiated as a way to reduce overcrowding in the downtown Whatcom County Jail, as well as to provide a place for inmates to be sent when major repairs slated for the facility begin.

According to Pratt, Yakima County Department of Corrections Director Ed Campbell sent a one-page letter stating the inmate housing agreement for all Whatcom County and its cities was terminated, effective Dec. 31. The letter was sent to Whatcom’s executive, the mayors of Sumas, Lynden, Ferndale, Everson, Bellingham and Blaine’s city manager. No reason was given for the termination. Although negotiations are underway, the decision to terminate was based on several factors.

“One factor being related to the time, distance and cost of transportation. Other factors will be discussed with the individual agencies,” Campbell said.

Housing an inmate in Yakima costs roughly from $58 to $63 a day. It currently costs $129 per day to house someone in the Whatcom County Jail.

My opinion?

Whatcom County needs a new jail. Period. The current facility, which was built nearly 40 years ago in the 1980s, is deteriorating and is unsafe when it comes to earthquake and fire hazards. Its decrepit. Renovating the current jail is not a viable solution. No amount of new drywall and retrofitting is going to solve these problems. Additionally, the current jail is not set up to provide the services and treatments available in the 2010s and 2020s for those with mental health and addiction struggles. As a result, suicides happen with disturbing frequency, sparking expensive litigation from the families of inmates who were not observed and/or given a lack of services.

Skagit County experienced – and effectively solved – similar problems by creating the Skagit County Justice Center two years ago in October 2017. The 400-bed, 100,000-square-foot facility was built to better accommodate the county’s jail population, which averages about 200. Their old jail was built to hold 83.

Hopefully, similar to Skagit County, Whatcom County will address its incarceration challenges and simply create a new jail. The sooner, the better.

Please contact my office if you, a friend or family member face are incarcerated and face criminal charges in Whatcom or Skagit County. Being incarcerated is never pleasant. Attorney Alex Ransom is highly experienced at persuading judges to lower bail or release an inmate without bail.

 

Are Long Prison Sentences Necessary?

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“For decades, while we made it increasingly difficult to obtain release, we have sent people to prison for longer and longer. We became reliant on extreme sentences, including mandatory minimums, “three-strike” laws, and so-called truth-in-sentencing requirements that limit opportunities for people to earn time off their sentences for good behavior. As a result, the United States laps the world in the number of people it incarcerates, with 2.2 million people behind bars, representing a 500 percent increase over the past four decades, with 1 in 9 people in prison serving a life sentence.”

Moreover, the authors argue that legislation is needed at the federal level and in every state to allow everyone after a certain period in prison the opportunity to seek sentence reductions. Sentence review legislation recognizes that as we have increased the length of prison sentences and limited the ability to obtain release, our prisons have become overwhelmed with people whose current conduct proves further incarceration is not in the public interest.

LONG PRISON SENTENCES DO NOT REDUCE CRIME.

“We increased sentence lengths and made it more difficult for people to be released because we were told it was needed for public safety,” said the authors. “But sending people to prison for long periods does not reduce crime.”

In fact, longer sentences, if anything, create crimeDavid Roodman, a senior adviser for Open Philanthropy, reviewed numerous studies on the impact of incarceration and concluded that “in the aftermath of a prison sentence, especially a long one, someone is made more likely to commit a crime than he would have been otherwise.”

Additionally, the authors say that not only are lengthy prison sentences ineffective at reducing crime, but they have devastated low-income and minority communities. As the Vera Institute aptly put it: “We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms.” While black people are just 13-percent of the country’s population, they account for 40 percent of the people we incarcerate.

If the ineffectiveness of long prison terms or the impact on poor communities of color is not reason enough to revisit lengthy prison sentences, the financial drain of long prison terms is staggering. For example, U.S. prisons spend $16 billion per year on elder care alone. Billions of dollars are diverted to prisons to care for the elderly who would pose no real risk if released when that money could be going to our schools, hospitals, and communities.

Given this reality, the authors say, we need to pursue every option that would safely reduce our prison population. One proposal by the American Law Institute recommends reviewing all sentences after a person has served 15 years in prison. Another example is the bill Sen. Cory Booker (D-N.J.) and Rep. Karen Bass (D-Calif.) introduced that would provide sentence review for anyone who has served more than 10 years in prison or who is over 50 years old. Notably, neither proposal is restricted by the type of offense, which is critical, because to combat mass incarceration, to echo the Prison Policy Initiative, reform has “to go further than the ‘low hanging fruit’ of nonviolent drug offenses.”

“Measures that promote sentence review would not automatically release anyone,” say the authors. “Instead, people would be given a chance to show a court that they are no longer a danger to public safety. A judge—after weighing all relevant circumstances, including hearing from any victims and their families—would then decide whether a person should be released.”

And numerous studies have shown that decreasing sentences does not increase crime. A recent Brennan Center for Justice report documented 34 states that reduced both their prison population and their crime rates, the Sentencing Project concluded that unduly long prison terms are counterproductive for public safety, and the Justice Policy Institute found little to no correlation between time spent in prison and recidivism rates.

My opinion? Some crimes need punishment. However, we have forgotten that our justice system is supposed to rehabilitate people, not just punish them. Our policies should reflect the ability of people to change over the course of years—or decades—of incarceration.

Exigent Circumstances Support Warrantless Blood Draw

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In State v. Anderson, the WA Court of Appeals held that exigent circumstances supported a warrantless blood draw at the scene from a driver arrested for vehicular homicide and vehicular assault.

BACKGROUND FACTS

In October 2014, Anderson was living with his high school friend, Mr. Powers. Powers would occasionally let Anderson drive his car. The evening of October 24, 2014, Anderson drank at home and then went to a bar to watch a hockey game. About 12:30 am., Powers heard Anderson’s voice and then heard his car start. Anderson took Powers’s car without his permission.

Around 2:00 a.m., Sergeant Jamie Douglas responded to a multivictim car crash in Auburn. At the scene, Douglas saw an “obliterated” car off the roadway, a path of debris, an uprooted tree with an 18-inch base, uprooted utility boxes, and guy wires that had been supporting a telephone pole torn out of the ground. The speed limit on the road was 35 m.p.h. but, based on the scene, Douglas estimated the car was traveling close to 100 mph. Deputy Jace Hoch had observed the car earlier traveling at about 90 mph. but could not catch it. He asked dispatch to let the Auburn Police Department know that the car was heading toward Auburn. Four of the five passengers in the car died.

Multiple individuals who responded to the scene smelled alcohol on Anderson. Anderson told paramedic Paul Nordenger that he had had “a few drinks.” Nordenger drew Anderson’s blood at the scene without a warrant. Test results showed that his blood alcohol content (BAC) was 0.19 grams of alcohol per 100 milliliters of blood and that he had 2.0 nanograms of THC (tetrahydrocannabinol) per milliliter. Anderson was taken to Harborview Medical Center. Toxicologist Asa Louis testified that a second blood draw taken there showed a BAC of 0.18.

The State charged Anderson with four counts of vehicular homicide, one count of vehicular assault, one count of reckless driving, and an a sentencing aggravator for injury to the victim substantially exceeding the level of bodily harm necessary to satisfy the elements of vehicular assault. A jury convicted Anderson as charged.

Among other issues, Anderson claimed that exigent circumstances did not exist for officers to conduct a warrantless blood draw at the scene.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. A blood test is a search and seizure. A recognized exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.

“A court examines the totality of the circumstances to determine whether they exist,” said the Court. “They exist where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.” Furthermore, the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process.”

Next, the Court of Appeals’ legal analysis focused on prior cases U.S. Supreme Court and WA Supreme Court cases. It observed that Missouri v. McNeely upheld the proposition that the presence of other officers weighs against the conclusion that exigent circumstances existed. Also, in State v. Inman, the WA Court of Appeals held that exigent circumstances for a blood draw existed when Mr.  Inman crashed his motorcycle on a rural road, injuring him and his passenger. In that case, Inman had facial trauma; including bleeding and abrasions on the face, and a deformed helmet. A bystander told police that Inman had been unconscious for five minutes before regaining consciousness. A paramedic administered emergency treatment. A responding officer spoke with lnman and smelled intoxicants on him. Finally, Inman admitted that he had been drinking before driving his motorcycle.

“The circumstances here are more like those in Inman,” said the Court of Appeals. “Similar to Inman, the trial court found that Anderson was in a high-impact collision resulting in serious injuries.  Here, Mr. Anderson sustained serious injuries that required treatment, multiple responders smelled alcohol on him, he told an officer at the scene that he had been drinking before driving, a paramedic told the first responding officer that the medics would be giving the driver medication and intubating him, the first responding officer knew from his experience in law enforcement and as a paramedic that this emergency treatment could impair the integrity of the blood sample, and that it would take 40 to 90 minutes to obtain a warrant for a blood draw.

“A warrant was not practical because the delay caused by obtaining a warrant would result in the destruction of evidence or postpone Anderson’s receipt of necessary medical care,” reasoned the Court of Appeals. “The totality of the circumstances establish that exigent circumstances existed to justify a warrantless blood draw.”

Please contact my office of you, a friend or family member are charged with an alcohol-related driving charge and police execute a warrantless blood draw. Retaining an experienced DUI attorney who is experienced with the legalities of blood draws is the first and best step toward obtaining justice.

Lawmakers Consider Giving Judges More Discretion

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Great article by James Drew of the News Tribune says that over the next 20 months, state legislators shall study, debate, and vote on what could be the first major reform of Washington’s criminal sentencing law since 1981.

The starting point of the deliberations is a stack of recommendations from a state commission that would give judges more discretion in how they sentence adults convicted of felonies. The change could help the state reduce its reliance on incarceration and move more toward rehabilitation of offenders.

The goal of overhauling the criminal sentencing law is to improve the system by simplifying it, but there are key questions looming for lawmakers, said Rep. Roger Goodman, the Kirkland Democrat who is chairman of the House Public Safety Committee. Disparities — a lack of equality or similarity in a way that is unfair — can occur by race, gender, geography, income and other factors, but the discussion last month touched heavily on race.

At a July 16 legislative work session, Sen. Jeannie Darneille, D-Tacoma, questioned whether the Criminal Sentencing Guidelines Commission had studied systems in other countries that would help Washington address concerns throughout the United States about “mass incarceration.”

The Legislature adopted the Sentencing Reform Act in 1981 and it took effect three years later. Since then, lawmakers have amended it dozens of times. The state’s three appellate courts and the Supreme Court have issued several rulings interpreting its provisions.

Goodman said there are several recommendations in a July 1 report by the Criminal Sentencing Guidelines Commission that the Legislature can tackle during its 60-day session next year.

Drew reported that a person’s greatest risk of committing another crime after release from confinement is within the first three to six months, according to an analysis by the Council of State Governments.

Under the current system, a judge would have a sentencing range of 12-14 months for a defendant who is convicted of a Class B assault with a deadly weapon — and 36 months tacked on for use of a firearm. The 12-14 month sentence carries a 33 percent off for good behavior in prison, but the 36-month enhancement does not.

“The sentence is opaque and difficult for the public to understand and allows almost no discretion for the trial court,” the commission report said.

One of the reform proposals from the commission would provide a sentence range from 12-24 months, but any sentence between six months and 30 months would be deemed reasonable. The entire sentence would carry the same good behavior in prison provision to reduce the sentence.

My opinion? This is good news. If allowed, a sentencing judge may give more weight to certain intangible factors.  For example, a judge may take account of a defendant’s good deeds in other areas of his life, considering whether the crime is an isolated incident or aberration on the record of an otherwise well-intentioned individual or whether the crime is just one chapter in a life filled with deceit.

Part of my practice includes drafting sentencing memorandums and assembling merit packages for clients convicted or felonies. These merit packages consist of character reference letters, proof of treatment, college transcripts (if applicable) favorable job reviews, security clearances, etc. The goal is to paint a favorable picture of the defendant that describes them beyond the criminal charges.

Appearance of Fairness

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In State v. Gorman-Lykken, the WA Court of Appeals held that before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, and (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant.

BACKGROUND FACTS

Mr. Gorman-Lykken was charged with Rape in the Second Degree (DV). The State was required to prove that Gorman-Lykken engaged in sexual intercourse with his girlfriend when she was incapable of consent.

At trial, Gorman-Lykken wanted to testify. Before he did so, his defense attorney objected to the proximity of the corrections officer assigned to Gorman-Lykken while he was on the witness stand. The trial court responded, “Let me just touch base with the corrections officer.” The corrections officer stated, “If he’s up here, we’re up here.”

The trial court then observed on the record that sometimes one to three corrections officers were assigned to a defendant in court and that “sometimes those individuals are large, larger than average.” By contrast, the court noted that the corrections officer assigned to Gorman-Lykken was “not one of our largest corrections officers, and there’s only one of her.” The court also stated that “the policy of the corrections staff is that . . . they are to be in close proximity to somebody who is testifying that’s been accused of a crime.” The court concluded, “I think on the whole I’m comfortable having the officer
stay where she’s at.”

The jury found Gorman-Lykken guilty as charged. He appealed his conviction on the issue of whether the trial court erred in allowing the corrections officer to be stationed next to him during his testimony as a security measure.

COURT’S ANALYSIS & CONCLUSIONS

Preliminarily, the Court of Appeals said that trial courts have broad discretion to make trial management decisions, including provisions for the order and security of the courtroom.

However, the Court also acknowledged that trial courts commit reversible error when they base their decisions solely on the judgment of correctional officers who believed that using restraints during trial was necessary to maintain security, while no other justifiable basis existed on the record.

Furthermore, Courts have recognized that certain courtroom security measures are inherently prejudicial. This includes shackling, handcuffing, or other physical restraints; gagging the defendant and holding a trial in a jail. Courts must closely scrutinize such measures to ensure that they further essential state interests.

“Before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant,” said the Court of Appeals.

Here, however, the Court of Appeals was concerned that the trial court never stated case-specific reasons why this case or this defendant created the need for this security measure.

“The court simply stated, ‘I’m comfortable having the officer stay where she’s at,'” said the Court of Appeals. “Accordingly, we hold that the trial court abused its discretion in allowing the corrections officer to be stationed next to the witness stand when Gorman-Lykken testified.”

“Here, the State does not argue that any error was harmless. And there is no indication that the State could show harmlessness beyond a reasonable doubt. Even though stationing an officer next to the witness stand may not be inherently prejudicial, allowing that measure created a risk that the jury might infer that Gorman-Lykken was dangerous or guilty. The State cannot show beyond a reasonable doubt that stationing the officer next to the witness stand did not influence the jury.”

The Court also noted that the evidence of Gorman-Lykken’s guilt was not so overwhelming that a guilty verdict was the only rational result. At trial, Gorman-Lykken’s girlfriend testified that she had taken medication that essentially put her to sleep and that she had told Gorman-Lykken not to have sex with her while she was asleep.

“But Gorman-Lykken testified that he asked his girlfriend if she was up for sex, that she verbally agreed, and that she was coherent during the sexual activity,” said the Court of Appeals. “Therefore, the jury was presented with conflicting evidence, not evidence that overwhelmingly established Gorman-Lykken’s guilt.”

With that, the Court of Appeals held that the trial court’s error in allowing an officer to be stationed next to the witness stand when Gorman-Lykken testified was not harmless. It reversed Gorman-Lykken’s conviction and remanded the case back to the trial court for further consideration.

My opinion? Good decision. It’s highly prejudicial to have police and correctional officers standing by defendants as they testify before a jury. It silently says that the defendant is extremely dangerous and volatile. Juries are more likely to convict defendants who appear dangerous. Congrats to the Court of Appeals for deciding this one correctly!

Bellingham Police Department Conducts Distracted Driving Emphasis

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Put the cell phone away.

The Bellingham Police Department tweeted and facebooked notice that there will be a distracted driving emphasis on Friday, August 16th from 10:00am-2:00pm. Areas of emphasis are Lakeway/Ellis Streets and Holly Street to State Street.

Distracted driving — when drivers eat, put on makeup or text — causes more than 3,000 deaths a year. The National Highway Traffic Administration says it also costs $46 billion annually for everything from injuries to vehicle repairs, and of course, lost productivity due to death. With the exception of Montana and Arizona, texting while driving is illegal in every state, but unless police catch you in the act, it can be very hard to prove.

Additionally, depending on the circumstances, officers may develop probable cause to conduct a DUI investigation and/or search your vehicle for contraband or evidence of a crime.

Please contact my office if you, a friend or family member face criminal charges after being stopped for distracted driving. The charges could be dismissed if the search was pretextual and/or unlawful. Hiring a competent and credible defense attorney who is fluent in pretrial motions practice is the first and best step toward getting justice.