Tag Archives: Bellingham Criminal Defense Attorney

State v. Hampton: You Can’t Replace Your Attorney at 11th Hour.

Things to Consider Before Firing Your Attorney

In State v. Hampton, the WA Supreme Court decided  It was not an abuse of discretion for a trial judge to deny a defendant’s request to delay trial to allow him to replace his public defender with a private attorney.

Mr. Hampton was charged with Rape in the Second Degree. On the eve of his trial, Hampton moved to replace his appointed counsel with a new private attorney on the condition that the trial be continued so his new counsel could prepare. The trial court denied the continuance, so Hampton proceeded with his previously appointed counsel. He was ultimately convicted of Rape in the Third Degree.

The Court of Appeals reversed his conviction, holding that the trial court’s decision violated Hampton’s constitutional right to his choice of counsel because it considered Hampton’s reasons for wanting a new attorney. The Court of Appeals relied on United States v. Gonzalez-Lopez, a United States Supreme Court opinion that held that when a defendant’s right to choice of counsel is erroneously denied, a defendant need not show prejudice in order to obtain relief.

Here, the WA Supreme Court overruled the WA Court of Appeals and upheld Mr. Hampton’s conviction. It reasoned that a trial court has wide latitude to grant or deny a motion to delay trial related to a defendant’s request to change counsel. In making such a decision, trial courts should consider the factual context for the motion, which can include among other factors-a defendant’s reasons for dissatisfaction with existing counsel.

In this case, reasoned the court, the trial court did not abuse its discretion when it denied Hampton’s request to delay trial to allow him to replace his counsel given that (1) he did not make his request until the day his trial was scheduled to start, (2) his trial had already been continued once, (3) the victim/witness opposed the continuance, and (4) he did not explain his dissatisfaction with appointed counsel.

The WA Supreme Court also stated that trial courts can consider all relevant information, including the 11 factors described in the most recent edition of the LaFave Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

( 5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial; and

( 11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Based on that, and under the circumstances, the WA Supreme Court concluded that the trial court in this case did not error by considering the defendant’s reasons for dissatisfaction with his appointed attorney in addition to the other circumstances, such as the lateness of the request, the previous continuance granted by the court, and the victim/witness’s opposition to further delay.

Consequently, the WA Supremes reversed the Court of Appeals and held that the trial court did not abuse its discretion when it considered – among other factors – the defendant’s reasons for his dissatisfaction with his appointed counsel.

My opinion? Trial judges are very, very suspicious and pessimistic when defendants try withdrawing/replacing their defense attorney at the 11th hour before trial. Judges know that Prosecutors work hard – and they do – to bring witnesses together and prepare for trial. Judges also know want to avoid any witness tampering and/or intimidation on the part of defendants who may have mistakenly believed they could strike a BBD (bigger, better deal) right before trial.

That line of thinking on the part of defendants is not always true, in fact, it’s rarely true. Believe me, once a competent Prosecutor prepares a trial, they’re rarely convinced of going anywhere but forward with their prosecution.

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.

Early Release of Drug Felons

Early Release | Oregon City School District

Last month, the federal prison system released 6,000 individuals convicted for drug offenses — the largest one-time release of federal prisoners — as part of a national effort to reduce the impact of overly harsh sentencing laws.

According to the Associated Press, all released felons are drug offenders who were no longer deemed a danger to the community.

According to The Sentencing Project’s Executive Director Marc Mauer, the early release of individuals convicted for drug offenses is expected to have a very minimal effect on public safety.

“It’s not going to release a crime wave, but some number of them are going to recidivate (re-offend), because that’s true of everyone leaving prison,” said Mauer.

“The reason we have mass incarceration is not because we don’t have enough research documenting the problem with it, but, politically, policymakers have been fearful of being soft on crime for too many years,” he said. “Now that there’s a greater comfort level, we can discuss what would work better.”

WHO THEY ARE

According to early release petitions obtained by The Associated Press from court records, they include:

— Lincoln Steve White, 43, who was caught buying 2 ounces of cocaine for $1,400 in Florida in 2008 and has served more than five years of a seven-year sentence. He plans to live with a girlfriend and put the heating and air conditioning repair skills he learned in prison to work.

— Chedrick Crummie, 45, who’s leaving prison after serving 21 years for cocaine trafficking in South Florida, and has a janitorial job lined up through a local minister.

— Emilio Flores, 43, whose cocaine trafficking sentence fell from 10 years to six under the new guidelines. Flores believes his mental illness and addiction made him easy prey for manipulative drug dealers. Prison didn’t help the situation, he said. “The treatment is to medicate the mentally ill into zombies,” Flores, of Florida, wrote in his petition.

WHERE THEY’RE GOING

About 2,000 of the 6,000 being released soon are being deported. Many others will be steered to traditional probation programs. Most have already been moved to halfway houses or home confinement over the past year, as their sentences were recalculated. Some will go to public or privately run programs that help prisoners ease back into society. How different states are handling the mass release:

— In eastern Pennsylvania, the 45 people being released early are just a blip on a probation department caseload that numbers 2,800 people.

— In Georgia, U.S. probation officers expect to see nearly 60 new offenders released the first week of November, 10 times the normal load. But the office has been working with family members and service providers to prioritize the caseload. “We want to make sure we help people get off to a good start, like we would if we had six cases coming out in the course of a week,” said Robert Long, the chief U.S. probation officer for the Middle District, based in Macon.

— In Texas, where Volunteers for America operates two federal halfway houses, officials have been moving people out to the community to make beds available for the next wave leaving prison.

— In Kansas City, Missouri, retired police commander Ron Smith is program director of Second Chance KC. He said his agency helps about 4,000 released prisoners annually from all jails and prisons. Typically, about 475 of those prisoners come from federal lockup, and he doesn’t expect that number to swell in November. “There will be some increase but we think we’ll be able to handle that,” Smith said. “There’s nothing to worry about.”

— The southern district of Ohio, including Cincinnati, Dayton and Columbus, has about 350 inmates in the early-release program, with 80 to 90 scheduled for release Nov. 1, said Phelps Jones, supervising officer for the U.S. Probation Office in Columbus. Between 20 and 30 of those are people in the country without legal permission being turned over to federal immigration authorities, he said.

My opinion? Let’s see what happens. Early release is a privilege. Hopefully, they won’t re-offend. Of those who do, let’s hope the re-offenders don’t commit violent crimes or felonies.

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.

Remorseful Defendants

Male Prisoner Head Hands Regret Sad Soli... | Stock Video | Pond5

In an article titled, Remorse & the Criminal Justice System, Susan A. Bandes of DePaul University College of Law argues the need for more studies on whether and how a defendant’s remorse can be accurately evaluated.

Picture this: a defendant facing heinous criminal charges silently sits in the courtroom next to his attorney while victim after victim sobs their way through testimony on how their lives are forever ruined by his actions. It happens every day in courts across the United States.

We think, “How can he be so cruel? Look at him! He shows no emotion! Why isn’t he remorseful?

Law professor Susan A. Bandes examines this very question in her very powerful article. She acknowledges that although a defendant’s failure to show remorse is one of the most powerful factors in criminal sentencing, including capital sentencing, there is currently no evidence that their remorse can be accurately evaluated in a courtroom.

“Remorse, if it is to continue to play an influential role in criminal justice, must advance some legally legitimate purpose,” she argues. “It must be capable of being identified with reasonable accuracy.” Furthermore, she argues, if a criteria for measuring remorse cannot be given, remorse should be banished from the deliberative process altogether.

At the same time, however, Professor Bandes argues that the notion of banishing remorse from the deliberative process carries its own problems.

Professor Bandes concludes that reforms should consist of educating and guiding decision-makers about how to evaluate remorse:

“If it is established that remorse cannot be reliably read via facial expression and body language, judges can so instruct juries, and expert witnesses can testify to that effect. For example, experts could testify about what we know—and do not know—about using facial expression to evaluate various emotions. In addition, experts could testify about particular barriers to evaluating remorse, such as race, ethnicity, cultural assumptions, juvenile status, and mental disability. Judges can also be educated by expert witnesses and in judicial conferences.”

Goof article.

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.

Washington Prosecutors Want Death Penalty Referendum

The Death Penalty in Jewish Tradition - My Jewish Learning

Interesting news article from the Bellingham Herald says State prosecutors will ask lawmakers to send a death penalty referendum to voters next year.

The Washington Association of Prosecuting Attorneys issued a statement Thursday saying that prosecutors “overwhelmingly believe that the people of the state should vote on the question of whether the state should retain the death penalty as an option in cases of aggravated murder.”

The death penalty has been on hold in Washington state since last year, when Gov. Jay Inslee issued a moratorium for as long as he’s in office. Currently, nine men are on death row in Washington state. Death penalty cases in the state are still being tried and continue to work through the system. Inslee’s moratorium means that if a death-penalty case comes to his desk, he will issue a reprieve, which means the inmate would stay in prison rather than face execution.

The next legislative session begins in January.

My opinion? I’m pleasantly pleased our Prosecutors are putting their proverbial finger on the pulse. And the question is relevant: why waste thousands of attorney hours, expend tons of limited law enforcement resources and spend millions of taxpayer money seeking the death penalty for a handful of Washington inmates when your average, everyday Washingtonian may not even support the death penalty? Good on you, Prosecutors.

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

State v. Thompson: Disruptive Defendants In Trial

Murder defendant to wear shock device | The Spokesman-Review

In State v. Thompson, the WA Court of Appeals Division II held that  a Defendant’s right to be present during trial is not violated if they are taken away after being verbally and/or physically disruptive and refuse to promise that such behavior will stop.

Here, late one evening, Thompson approached a group of high school students, two of whom were sitting in a car. Thompson pulled out a gun and ordered the students to surrender their possessions. Three of them handed over backpacks and other items, while the two girls in the car closed and locked the doors. After looking through the items, Thompson demanded the car. When one of the boys protested and tried to get the gun, Thompson shot him in the abdomen. The other boys wrestled Thompson to the ground and held him until the police arrived.

The State charged Thompson with four counts of Robbery in the First Degree while armed with a firearm and one count Assault First Degree while armed with a firearm, Unlawful Possession of a Firearm in the First Degree and Possession of a Stolen Firearm.

When Thompson’s trial began on January 28, 2014, he wore a leg restraint. Before testimony began, jail personnel asked for increased restraints due to a physical altercation at the jail. After a hearing on the matter, the trial court authorized the placement of a stun device under Thompson’s clothing.

Later that same day, Thompson pushed over the counsel table at which he was seated, yelled several profanities, and struggled with corrections officers before being subdued and removed from the courtroom. When he returned in handcuffs, shackles, and a belly chain, the trial court ruled that he would be taken to another courtroom where he could attend the trial over a video feed.

The trial court informed Thompson that he would have the right to be present in court if he assured the judge that his behavior would improve. Specifically, the judge said the following:

“And, of course, Mr. Thompson has the right to reclaim his ability to be present in court upon a real assurance that his conduct will improve and that he will not be verbally or physically disruptive.”

Before the trial recessed for the day, the trial court reminded Thompson that he could return to the courtroom the following day if he agreed to behave. Thompson was instructed to inform his attorney or corrections staff of his decision.

The next day, on February 4, trial resumed. Thompson had not decided whether he would behave in court. The judge said he would not further inquire into Thompson’s desire to return to the courtroom because Thompson knew the procedure by which he could return the day before and still refused to comply or reply. After the State rested, Thompson declined to testify, and the jury retired to deliberate at the end of the day.

On February 5, the jury found Thompson guilty as charged.

On appeal, Thompson raised the legal issue of whether the trial court denied his right to be present at trial by removing him from the courtroom for the final three days of trial without informing him daily that he could return if he conducted himself properly.

However, the Court of Appeals disagreed. The Court reasoned that a criminal defendant has a constitutional right to be present in the courtroom at all critical stages of the trial. Also, this right derives from the 6th Amendment’s constitutional right to confront adverse witnesses and the Washington rules of criminal procedure.

The Court also reasoned, however, that the right to be present is not absolute. A defendant’s persistent, disruptive conduct can constitute a voluntary waiver of the right to be present in the courtroom. Once lost, this right can be reclaimed “as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.”

The Court of Appeals followed basic guidelines under State v. Chapple to assist trial courts in exercising their discretion in cases like this. First, the defendant must be warned that his conduct may lead to removal. Second, the defendant’s conduct must be severe enough to justify removal. Third, the trial court should employ the least severe alternative that will prevent the defendant from disrupting the trial. Fourth, the defendant must be allowed to reclaim his right to be present upon assurances that his or her conduct will improve. These guidelines, said the court, are intended to ensure that trial courts exercise their discretion in a manner that affords defendants a fair trial while maintaining the safety and decorum of the proceedings.

Here, the trial court clearly informed Thompson of both his right to return and the manner in which he could exercise that right. With that, the Court affirmed Thompson’s convictions.

My opinion? In my experience, trial judges are extremely sensitive to how defendants behave in court. Decorum MUST be maintained by witnesses, attorneys and defendants at all times. Any disruptions of proceedings are viewed disdainfully, as we see in this opinion.

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

State v. Mitchell: Bus Fare Officers

Sound Transit, King County Metro suspending fare enforcement to improve  safety during novel coronavirus response | Mass Transit

In State v. Mitchell the WA Court of Appeals Division I decided that a fare enforcement officer (FEO) may detain a passenger for a period of time necessary to identify a bus rider and may also issue a notice of civil infraction when a passenger fails to pay the required fare or produce proof of payment when asked, if the infraction occurs in the officer’s presence. Finally, a “passenger” includes a person that the FEO observes stepping off the bus.

Here, Mitchell was convicted of Unlawful Possession of a Firearm in the First Degree. The firearms were discovered when a fare enforcement officer stopped him to check proof of fare payment after he exited a Metro bus. Mitchell argues he was unlawfully detained and the trial court erred by not suppressing evidence of the firearms.

The Court of Appeals reasoned that RCW 35.58.585(1) allows metropolitan municipal corporations to designate individuals to monitor fare payment. These persons have all the powers granted to enforcement officers under RCW 7.80.050 and 7.80.060. This means an FEO can issue a notice of civil infraction when the infraction occurs in the officer’s presence, request identification, and detain a person for a period of time reasonably necessary to identify the person. Also, under RCW 35.58.585(2)(b) the law specifically grants FEOs the additional authority for the following:

(i) Request proof of payment from passengers; (ii) Request personal identification from a passenger who does not produce proof of payment when requested; (iii) Issue a citation and (iv) Request that a passenger leave the bus or other mode of public transportation when the passenger has not produced proof of payment after being asked to do so by a person designated to monitor fare payment.

Here, the defendant challenged the legality of the stop. He argued that the word “passenger” includes only those persons physically present on a mode of public transportation. Under this theory, an FEO may request proof of payment from someone currently traveling on a bus, because that traveler’s freedom of movement is already restricted by his or her presence on a moving vehicle. However, once the person disembarks the bus, additional authority is needed to request proof of payment, because to do so an FEO must first stop the person.

Unfortunately for Mitchell, the WA Court of Appeals disagreed. They said that here, there is no question Mitchell was a passenger. The FEO witnessed Mitchell disembarking the bus. He asked Mitchell and the other departing passengers for their proof of payment as they stepped off the bus. By using the bus, as a passenger, Mitchell had already incurred the obligation to display proof of payment when asked. Under these facts, the FEO acted within the scope of his statutory authority by requesting proof of payment from Mitchell. Additional authority to detain was unnecessary.

Also, because Michell did not have ID on himself, the FEO had the authority to detain Mitchell for the time reasonably necessary to identify him. Accordingly, the FEO radioed for assistance and, within minutes, police arrived and confirmed Mitchell’s identity. At each step of this encounter, the FEO acted within the scope of his statutory authority.

The Court of Appeals upheld Mitchell’s conviction for Unlawful Possession of a Firearm First Degree.

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

State v. Besola: Overbroad Search Warrant

Federal Warrants and Search and Seizure Lawyer | Eisner Gorin LLP

In State v. Besola, the Washington Supreme Court held that a search warrant was overbroad. Because the warrant failed to meet the Constitution’s “particularity” requirement, the court reversed the Defendant’s convictions for Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Mark Besola and Jeffrey Swenson lived together in Besola’s house. After a friend of Swenson’s, Kellie Westfall, was arrested, she told police that she had seen drugs and child pornography at Besola’ s house. Based on the information provided by Westfall, a judge issued a search warrant for illegal drugs but declined to issue a search warrant related to child pornography at that time.

At the scene, police saw CDs and DVDs with handwritten titles that implied that they contained child pornography. On the basis of this observation, police requested and obtained an addendum to the search warrant.

The language of that amended warrant (and whether it was sufficiently particular) is at the heart of the legal issue in this case.

The warrant indicated that the crime under investigation was “Possession of Child Pornography R.C.W. 9.68A.070.” Clerk’s Papers (CP) at 312 (boldface omitted). The warrant indicated that “the following evidence is material to the investigation or prosecution of the above described felony”:

1. Any and all video tapes, CDs, DVDs, or any other visual and or audio recordings; 2. Any and all printed pornographic materials; 3. Any photographs, but particularly of minors; 4. Any and all computer hard drives or laptop computers and any memory storage devices; 5. Any and all documents demonstrating purchase, sale or transfer of pornographic material.

Police seized a number of computers, memory storage devices, CDs, and DVDs. They ultimately found child pornography on one computer and on 41 disks with handwritten titles. They also found a DVD duplicating device (also known as a DVD burner) attached to the computer. Some disks contained duplicated copies of the child pornography.

A handwriting expert testified that Besola’s handwriting was on at least one of the disks containing child pornography and that indications of both Besola’s and Swenson’s handwriting were on multiple other disks. Both defendants were charged with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Although the Court of Appeals affirmed the convictions, the WA Supreme Court granted review on the issue of whether the search warrant meet the Fourth Amendment’s particularity requirement.

The Court reasoned that the Fourth Amendment to the United States Constitution requires warrants to “particularly describe the place to be searched, and the persons or things to be seized.” That requirement is heightened if the warrant authorizes a search for materials protected by the First Amendment to the United States Constitution.

For guidance, the court reviewed a 1992 case, State v. Perrone, that involved similar circumstances. In Perrone, the Court decided that the warrant in that case failed to meet the particularity requirement of the Fourth Amendment, in part because it provided for the seizure of items that were legal to possess, such as adult pornography.

Here, the Court decided the decision in Perrone is binding in this case. Under Perrone, the court concluded that many provisions of this search warrant were similarly overbroad. As in Perrone, the descriptions of the items to be seized expressly included materials that were legal to possess, such as adult pornography and photographs that did not depict children engaged in sexually explicit conduct.

Similar to Perrone, these descriptions could easily have been made more particular by adding the precise statutory language, “depictions of a minor engaged in sexually explicit conduct.” As in Perrone, the police in this case failed to add that language to their search warrant. Therefore, under Perrone, these provisions were insufficiently particular and thus invalid.

The WA Supreme Court denied the State’s arguments that the warrant in this case is saved by a citation to the child pornography statute at the top of the warrant. The Court reasoned the State was incorrect because the statutory citation does not modify or limit the items listed in the warrant, so it does not save the warrant from being overbroad. More importantly, said the Court, the State’s position conflicts with Perrone and would hinder the goals of the warrant particularity requirement.

Because the warrant fails to meet the Constitution’s particularity requirement, the WA Supreme Court reversed these convictions.

My opinion? Good decision. Yes, possessing child porn is illegal. However, so are illegal searches. Warrants must particularly describe the items believed to found. Otherwise, they become a meaningless ticket allowing police to engage a fishing expedition of our bodies, property, vehicles and homes. Good decision.

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.

Police Roll Out Mobile DUI Processing Vehicle

They took this show on the road.

Law enforcement officials in Rhode Island are rolling out a new tool to combat drunk driving over the holidays.

Providence and state police officials unveiled Friday a new Blood Alcohol Testing Mobile Unit, which will allow officers to process drunk drivers on the scene rather than bringing them back to the police station.

The 40 foot long, approximately $350,000 vehicle is equipped with four computer work stations, two breathalyzer stations, a portable fingerprint and booking station and internal surveillance cameras.

Police say having two breathalyzer stations is a luxury not present in most police stations.

The vehicle was purchased using a federal grant awarded to Providence police and is expected to be deployed on weekends, holidays and special events across the state starting this weekend.

My opinion? These “vehicles” are not worth the money. It doesn’t take long for officers to simply transport DUI suspects back to the jail for DUI processing. The amount of times this is used versus the amount of time it would take those cases to go back to the station, I just can’t see justifying the savings. Also, will the breathalyzer (BAC) machines on these mobile units be maintained and tested similar to the BAC machines at jails? Too many questions, too much expense.

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

State v. Thierry: Prosecutor’s Improper Closing Argument Reverses Conviction.

Ethics class ordered for tired attorney who made improper closing argument  | The Law for Lawyers Today

In State v. Thierry, the WA Court of Appeals Division II decided that a Prosecutor’s statements during the closing argument of a child sex abuse case was an improper appeal to passion and prejudice.

The State charged Alfred James Thierry Jr. with four counts of Rape of a Child First Degree and two counts of Child Molestation First Degree, based on conduct against his son, JT.

At trial, the Prosecutor’s closing argument discussed direct versus circumstantial evidence. This explanation included the following:

“None of you were present when these acts occurred. No one testified for you that they watched any of these acts happen. That would be direct evidence of the acts themselves, but that is not required and, if it were, the State could never prosecute any of these types of cases.”

She made a similar argument shortly thereafter, in a discussion of the sufficiency of the State’s evidence:

“Did Thierry rape and molest his son? Yes, he did. The evidence tells you that he did. What’s the evidence? JT is the evidence, and he is all that is required for you to find him guilty of these crimes. If the law required more, if the law required anything, something, anything beyond the testimony of a child, the child’s words, JT’s words, those instructions would tell you that, and there is no instruction that says you need something else. And, again, if that was required, the State could rarely, if ever, prosecute these types of crimes because people don’t rape children in front of other people and often because children wait to tell.”

She again returned to this argument near the end of her initial closing remarks, in discussing the burden of proof:

“Now I want to talk just briefly about the standard of beyond a reasonable doubt. You don’t need to know all of the pieces. You don’t need to have all of the information or have all of the answers. If that were necessary, first of all, the standard would be beyond all doubt possible, but if that were necessary, once again, the State would not be able to prosecute any of these crimes or really any crime, actually, because how can you all as jurors who are selected from the community know nothing about any of the people involved, and certainly yourselves were not present for any act or crime that was committed, how can you know with 100 percent certainty?”

The prosecutor continued in this vein during rebuttal, returning to her public policy theme:

Defense counsel wants you to basically disregard everything that JT has said between what he told Sayfullah, between what he told Ms. Arnold-Harms, between when he told his primary care provider Ms. Lin and what he told Amber Bradford. ‘Just disregard all of that because he’s a child, because he was 8 when he said these things and because he was 9 when he was on the stand. Nothing he said is credible so just disregard it all.’ If that argument has any merit, then the State may as well just give up prosecuting these cases, and the law might as well say that “The word of a child is not enough.

At that point Thierry’s defense attorney objected that the prosecutor was “fueling the passion and prejudice of the jury.” The court overruled the objection and permitted the prosecutor to continue.

The jury returned guilty verdicts on all counts.

Thierry appealed that several of the remarks the Prosecutor made in closing argument merit reversal. He also argued that the cumulative effect of the improper statements denied him a fair trial.

Ultimately, the Court of Appeals agreed with Thierry and decided that the Prosecutor’s arguments were improper and that it had a substantial likelihood of affecting the verdict.

The court reasoned that as a general matter, to prevail on a prosecutorial misconduct claim a defendant must show that the prosecutor’s conduct was both improper and prejudicial in the context of the record and all of the circumstances of the trial. To establish prejudice sufficient to require reversal, a defendant who timely objected to the challenged conduct in the trial court must show a substantial likelihood that the misconduct affected the jury verdict.

The Court further reasoned that it’s improper for prosecutors to use arguments calculated to inflame the passions or prejudices of the jury.  Arguments that compel the jury to send a message to society about the general problem of child sexual abuse qualifies as such an improper emotional appeal.

Here, the Prosecutor’s statement that, “If Defense Counsel’s argument concerning JT’s credibility has any merit, . . . the State may as well just give up prosecuting child sex abuse cases, and the law might as well say that ‘the word of a child is not enough’” also qualified as an improper appeal to passion and prejudice.

The Court further reasoned that even if the Prosecutor’s argument was deemed purely a response to the defendant’s argument, Defense Counsel never suggested that the jury should not believe JT because of his age. Furthermore, nothing in Defense Counsel’s closing argument, therefore, warranted the prosecutor’s message that the State may as well give up prosecuting child sex abuse cases if JT were not believed and Thierry acquitted.

Finally, the court reasoned that the Prosecutor’s arguments had a substantial likelihood of affecting the verdict. The outcome of the case depended entirely on whether the jury chose to believe JT’s accusations or Thierry’s denial. Consequently, the Prosecutor’s remarks created a substantial risk that the jury decided to credit JT’s testimony for improper reasons. The prosecutor’s remarks exacerbated that risk by misrepresenting Defense Counsel’s argument so as to unfairly undermine Thierry’s defense.

The Court of Appeals reversed Thierry’s convictions and remanded the case for further proceedings.

My opinion? Good decision. Generally, it’s a professional courtesy to not object during opposing counsel’s closing arguments. It’s considered rude. Nevertheless, defense attorneys must object at all times when appropriate, even if doing so is frowned upon by judges and juries. Prosecutorial misconduct happens all of the time, and ESPECIALLY during closing arguments. Those statements, made again and again, definitely affected the outcome of the case. Again, good decision.

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

State v. Mayer: Officer Gives Confusing Miranda Warnings

In State v. Mayer, the WA Supreme Court decided that a deputy sheriff inadequately advised the defendant of his Miranda rights when he initially told the defendant that a lawyer would be appointed for him prior to questioning if he could not afford one but also said that no lawyer would be appointed for him unless he was arrested, jailed, and taken to court.

Here, defendant Nicholas Mayer was suspected of robbing KC Teriyaki,  a casual restaurant in Salmon Creek, while the employees were closing the restaurant for the day. The masked gunmen pushed one of the employees inside the restaurant; pointed a gun at the employee; grabbed a bag from inside; and then fled with the bag, which contained cash from the day’s sales. The apparent motive for the robbery was because Mr. Mayer’s sister, Emily Mayer, was a disgruntled ex-employee.

Police stopped Mr. Mayer’s vehicle, detained Mayer and the vehicle’s other occupants, and transported them to the police station for questioning regarding the robbery. Deputy Tom Dennison of the Clark County Sheriff’s Office questioned Mayer in an interview room at the police station. Dennison began by reading Mayer his Miranda rights and asking if he could record the interview. Mayer initially waived his Miranda rights and agreed to the recording.Once recording began, Dennison again advised Mayer of his Miranda rights:

“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.”

This time, however, Mayer asked Dennison to clarify how he could obtain appointed counsel:

DEPUTY DENNISON: “Do you understand each of these rights as I’ve explained them to you?”

MR. MAYER: Yes. Um, If I wanted an attorney and I can’t afford one, what — what would — ?

DEPUTY DENNISON: If you wanted an attorney– you know, if you were charged with a crime and arrested, if you wanted an attorney and couldn’t afford one, the Court would be willing to appoint you one. Do you want me to go over that with you again?

MR. MAYER: Yeah, but how would that work? Will you be– how it– how I–

DEPUTY DENNISON: You’re not under arrest at this point, right?

MR. MAYER: Oh, okay. Okay.

DEPUTY DENNISON: So, if you were, then you would be taken to jail and then you’d go before a judge and then he would ask you whatever at that point, if you were being charged, you would afforded an attorney if you couldn’t hi — you know, if you weren’t able to afford one.

MR. MAYER: All right. I understand.

DEPUTY DENNISON: Understand?

MR. MAYER: Yeah.

DEPUTY DENNISON: Okay. So you do understand your rights?

MR. MAYER: Yes.

After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison regarding the robbery, and made incriminating statements. Mayer admitted, among other things, that on the day of the robbery he met with his sister Emily, who drove the getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant; Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and Mayer had a knife; Mayer told the employees “give me the money”; Taylor grabbed the deposit bag containing money; Mayer ran from the restaurant with Taylor; they were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor.

Based on the confession, Mayer was arrested and charged with 11 criminal counts (later reduced to 10 counts), including Robbery in the First Degree. Mayer moved to suppress the incriminating statements he made during his interview with Officer Dennison, but the superior court denied the motion after a CrR 3.5 hearing.

The jury ultimately convicted Mayer on all 10 pending counts. The trial court sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously affirmed the conviction and sentence in an unpublished opinion. The WA Supreme Court granted review on his Miranda challenge.

For those who don’t know, the explanation of Miranda rights must be given before any custodial interrogation, stemming largely from the Fifth Amendment privilege against self-incrimination.  The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent. Without a Miranda warning or a valid waiver, statements might be inadmissible at trial under the exclusionary rule (e.g., they cannot be used as substantive evidence of guilt in criminal proceedings). See Miranda v. Arizona, 384 US 436 (1966).

Here, the WA Supreme Court ruled that Mayer’s confession should have been suppressed. They reasoned that Officer Dennison’s linkage of Mayer’s right to appointed counsel to conditional future events (arrest, jail, charge, and arraignment) contradicted his earlier statements that Mayer could have access to appointed counsel “before questioning” and that he could exercise his rights “at any time.” Critically, Officer Dennison did not tell Mayer that despite the fact that no appointed attorney was immediately available, Mayer’s other Miranda rights remained in full effect and he could protect his right to the presence of counsel by remaining silent until he could speak to an attorney.

Under these circumstances, ruled the court, Officer Dennison’s explanation of Mayer’s rights was deficient, and the State has failed to meet its burden of establishing that Mayer knowingly and intelligently waived his rights. Mayer’s subsequent confession therefore should have been suppressed. However, the Court further reasoned that because any error in admitting the confession was harmless, the court affirmed Mayer’s conviction.

My opinion? Good decision. This Miranda advisement from the police officer was contradictory and confusing. The deputy should have clarified that the defendant was not obligated to respond to questions until he had the opportunity to confer with a lawyer. Again, good decision. Unfortunately for the Defendant, however, the WA Supreme Court also decided the error was harmless. In other words, he was still convicted of the charges and must serve his sentence.

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.