Tag Archives: Mount Vernon Criminal Defense Attorney

U.S. Prison Trends

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Mass Incarceration, Then and Now | The New Yorker

The Sentencing Project devised a fact sheet which provides a compilation of major developments in the criminal justice system over the past several decades. Some highlights are as follows:

  • Mass Incarceration – The United States is the world’s leader in incarceration with 2 million people currently in the nation’s prisons and jails — a 500% increase over the last forty years.
  • Drug Policy – At the federal level, people incarcerated on a drug conviction make up nearly half the prison population. At the state level, the number of people in prison for drug offenses has increased nine-fold since 1980, although it has begun declining in recent years.
  • Racial Disparities – Black men are six times as likely to be incarcerated as white men and Latinos are 2.5 times as likely. For Black men in their thirties, about 1 in every 12 is in prison or jail on any given day.
  • Youth – Although youth detention populations are declining, youth of
    color enter the system much more frequently than white youth and are more likely to be sentenced to harsher terms of punishment. In addition, young people are transferred to the adult system each year and tried as if they were adults, and many are sent to adult prisons and jails to serve their sentences.
  • Felony Disenfranchisement – As of 2020, 5.2 million Americans were unable to vote due to state felony disenfranchisement policies.
  • Life Sentences – The number of people serving life sentences endures even while serious, violent crime has been declining for the past 20 years. This population has nearly quintupled since 1984. One in seven people in prison are serving life with parole, life without parole, or virtual life (50 years or more).

The Sentencing Project is a non-profit agency that promotes effective and humane responses to crime that minimize imprisonment and criminalization of youth and adults by promoting racial, ethnic, economic, and gender justice.

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.

Discarded DNA Admissible

Bellingham Defense Attorney, DNA, Evidence, felony, Homicide & Manslaughter, Kidnapping, law enforcement, Mount Vernon Criminal Defense Attorney, Rape, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

I 100% volunteered to do it': How bakery worker got DNA to crack 30-year-old murder case - ABC News

In State v. Bass, the WA Court of Appeals held the admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.

BACKGROUND FACTS

In November 1989, 18-year-old Amanda Stavik, a freshman at Central Washington University, returned home to rural Whatcom County to celebrate Thanksgiving with her family. On Friday, November 24, 1989, Stavik decided to go for a run with the family dog, Kyra. Her route took her down the defendant Timothy Bass’s residence. She never returned home.

On Monday, November 27, 1989, law enforcement found Stavik’s naked body in shallow, slow-moving water of the Nooksack River. During the autopsy, Whatcom County medical examiner Dr. Gary Goldfogel found semen in Stavik’s vagina and, based on the sperm count, concluded sexual intercourse had occurred no more than 12 hours before her death. This evidence led the State to conclude that someone had kidnapped and raped Stavik while she was out on her Friday afternoon run and that she had died while fleeing her captor.

Dr. Goldfogel preserved the samples he collected and sent them to the FBI and the Washington State Patrol Crime Lab for analysis. The Crime Lab developed a male deoxyribonucleic acid (DNA) profile from the sperm. The police investigation led to several suspects whom they later excluded when their DNA did not match the DNA in the sperm sample. Eventually, the case went cold.

In 2009, Detective Kevin Bowhay reopened the investigation and began asking for DNA samples from anyone who lived in the area or who may have had contact with Stavik near the time of her death. Over the course of the investigation, Det. Bowhay and his team collected more than 80 DNA samples for testing.

In 2013, Det. Bowhay asked Bass for a DNA sample. When Det. Bowhay indicated he was investigating Stavik’s death, Bass acted as if he did not know who she was, “looked up kind of, um, kind of like he was searching his memory” and said “oh, that was the girl that was found in the river.” Bass told Det. Bowhay that he did not really know Stavik and initially said he did not know where she lived. Bass refused to provide a DNA sample.

Bass’s refusal of a DNA sample raised suspicions. At this time, Bass was working as a delivery truck driver for Franz Bakery. Detective Bowhay reached out to Kim Wagner, the manager of the Franz Bakery outlet store. The detective informed Wagner he was looking for items that Bass might cast off that may contain his DNA.

In August 2017, Ms. Wagner saw Bass drink water from a plastic cup and throw the cup away in a wastebasket in the bakery’s employee break room. She collected that cup and stored it in a plastic bag in her desk. Two days later, she saw Bass drink from a soda can and, again, after he discarded it in the same trash can, she retrieved it and stored it with the cup. Det. Bowhay did not direct Wager to take any items and did not tell her how to handle or package these items.

Wagner contacted Det. Bowhay via text to let him know she had two items Bass had discarded in the garbage. Det. Bowhay met Wagner in the Franz Bakery parking lot, picked up the items, and sent them to the Washington State Crime Lab for analysis. The Crime Lab confirmed that the DNA collected from Bass’s soda can and cup matched the male DNA collected from the semen in Stavik’s body.

The State arrested Bass and charged him with first degree felony murder, rape and kidnapping. In pretrial motions, the trial court denied Bass’s motion to suppress the DNA evidence obtained from items Wagner collected at the Franz Bakery. In 2019, a jury convicted Timothy Bass of all charges.

On appeal, Bass challenged, among other things, the admissibility of DNA evidence linking him to the crime. His argument on appeal was that Wagner acted as a state agent when she collected his discarded items without a warrant.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by saying the Exclusionary Rule – a law that prohibits the use of illegally obtained evidence in a criminal trial – does not apply to the acts of private individuals. However, evidence discovered by a private citizen while acting as a government agent is subject to the rule.

“To prove a private citizen was acting as a government agent, the defendant must show that the State in some way ‘instigated, encouraged, counseled, directed, or controlled’ the conduct of the private person.” ~WA Court of Appeals.

The Court further reasoned that the mere knowledge by the government that a private citizen might conduct an illegal private search without the government taking any deterrent action [is] insufficient to turn the private search into a governmental one. For an agency relationship to exist, there must be a manifestation of consent by the principal [the police] that the agent [the informant] acts for the police and under their control and consent by the informant that he or she will conduct themselves subject to police control.

Consequently, the Court of Appeals rejected Bass’s argument and upheld the trial court’s findings that Ms. Wagner was not an agent at the time she pulled Bass’s cup and soda can from the trash and gave it to police:

“Det. Bowhay and Wagner both testified that Det. Bowhay did not ask or encourage Wagner to look for items to seize and did not tell her what type of items to take. Wagner testified Det. Bowhay did not instruct her to find an item containing Bass’s saliva; she made that assumption based on her husband’s experience in doing an ancestry DNA test and on watching television crime shows. Wagner confirmed that Det. Bowhay did not encourage her to find Bass’s DNA and gave her no guidance in how to do so.” ~WA Court of Appeals.

The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.

With that, the Court concluded that Detective Bowhay did not direct, entice, or control Wagner and Wagner was not acting as a state agent when she retrieved Bass’s cup and soda can from the workplace trash can. “These findings in turn support the legal conclusion that Wagner’s seizure of Bass’s discarded items and the DNA evidence was not the fruit of an unlawful search.” The Court upheld Bass’s convictions.

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

Supreme Court Sides with Police Officer who Improperly Searched License Plate Database

Bellingham Defense Attorney, Computer Fraud, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, United States Supreme Court, Whatcom County Criminal Defense, , , ,

CA police officers keep jobs despite criminal convictions | The Sacramento Bee

In Van Buren v. United States, the U.S. Supreme Court held that defendant Nathan Van Buren, a Georgia police officer Buren, did not violate the nation’s top computer crime law when he searched a license plate database for non-official purposes.

BACKGROUND FACTS

Former Georgia police sergeant Nathan Van Buren used his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money. Van Buren agreed. The requestor – a third party who offered to pay him to search the database – was an undercover FBI informant. Van Buren used his own valid credentials to perform the search. However, his conduct clearly violated a department policy against obtaining database information for non-law-enforcement purposes.

Again, unbeknownst to Van Buren, his actions were part of a FBI sting operation. Van Buren was charged with a felony violation of the Computer Fraud and Abuse Act of 1986 (CFAA), which subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” 18 U. S. C. §1030(a)(2). A jury convicted Van Buren, and the lower federal District Court sentenced him to 18 months in prison.

Van Buren appealed his conviction to the Eleventh Circuit Court of Appeals, arguing that the “exceeds authorized access” clause applies only to those who obtain information to which their computer access does not extend, not to those who misuse access that they otherwise have. Consistent with Eleventh Circuit precedent, the panel held that Van Buren had violated the CFAA.

Van Buren appealed again, this time to the U.S. Supreme Court.

COURT’S RATIONALE & CONCLUSIONS

In a 6-3 majority opinion penned by Justice Amy Coney Barrett, the Court held that Van Buren’s conduct did not violate the CFAA when he searched a license plate database for non-official purposes.

Justice Barrett wrote that Van Buren’s conduct “plainly flouted” his department’s policy, which authorized him to obtain database information only for law enforcement purposes.
“The parties agree that Van Buren accessed a computer with authorization and obtained information in the computer,” wrote Justice Barrett.  “They dispute whether Van Buren was entitled so to obtain that information.”
Regarding that specific issue, Justice Barrett reasoned the provision of the law at issue does not cover those who have improper motives for obtaining information that is otherwise available to them.  And regarding the issue of whether Van Buren violated the CFAA  – the truly important legal issue of the case –  Justice Barrett wrote “he did not.”
“The relevant question, however, is not whether Van Buren exceeded his authorized access but whether he exceeded his authorized access as the CFAA defines that phrase. For reasons given elsewhere, he did not.” ~U.S. Supreme Court Justice Barrett, Majority Opinion

“To top it all off,” she wrote, the government’s expansive interpretation of the law “would attach criminal penalties to a breathtaking amount of commonplace computer activity.” Simply checking personal email or reading the news on a work computer would be considered a crime, Barrett added.

“The Government’s interpretation of the “exceeds authorized access” clause would attach criminal penalties to a breathtaking amount of commonplace computer activity. For instance, employers commonly state that computers and electronic devices can be used only for business purposes. On the Government’s reading, an employee who sends a personal e-mail or reads the news using a work computer has violated the CFAA.” ~U.S. Supreme Court Justice Barrett, Majority Opinion

Finally, Justice Barrett reasoned that the Government’s prosecution would also inject arbitrariness into the assessment of criminal liability, because whether conduct like Van Buren’s violated the CFAA would depend on how an employer phrased the policy violated.

With that, the U.S. Supreme Court reversed Van Buren’s criminal conviction.

THE DISSENT

In his dissent, Justice Thomas compared Van Buren’s actions to a valet charged with parking a car, writing that the law should have covered the police officers’ actions. The valet, Thomas wrote, may “take possession of a person’s car to park it, but he cannot take it for a joyride,” Thomas wrote. He noted that Van Buren had permission to retrieve license plate information, but only for “law enforcement purposes.”
“When the police officer accessed the database in exchange for a bribe from an acquaintance, he exceeded authorized access under the law . . . Without valid law enforcement purposes, he was forbidden to use the computer to obtain that information.” ~ U.S. Supreme Court Justice Thomas, Dissenting Opinion.
In another example, Thomas said that an employee may be entitled to pull the alarm in the event of a fire, “but he is not entitled to pull it for some other purpose, such as to delay a meeting for which he is unprepared.”
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

 

New Law Offers Prison Alternatives for Mentally Ill

Bellingham Defense Attorney, Diminished Capacity, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Mentally Ill Inundate State Prisons | Connecticut Public Radio

Reporter Austin Jenkins of the Northwest News Network wrote an article reporting that Washington Gov. Jay Inslee has signed a measure that will soon offer an alternative to prison for people with a serious mental illness who commit a crime.

Under the new law signed Monday by Inslee, judges will have the option to sentence a person to community supervision and treatment in lieu of prison. Washington already offers sentencing alternatives for certain drug offenders and certain sex offenders.

The program — which takes effect July 25 —will be open to individuals who are convicted of a felony crime that is not a serious violent offense or a sex offense. The person would have to be willing to participate in the sentencing alternative, the court would have to determine the individual would benefit from community-based supervision and treatment, and the opinion of the person’s victim would also be considered.

If the person were to violate the conditions of the sentencing alternative, they could be sent to prison to serve their sentence.

My opinion? Excellent idea. Data suggests that people in the criminal justice system are more likely to suffer from mental health problems than the general population. Our sentencing should be sensitive to these problems.

Please contact my office if you, a friend or family member are charged with a crime and mental health is an issue. Substantive defenses such as Diminished Capacity are helpful. Hiring an effective and competent defense attorney is the first and best step toward justice.

Domestic Violence: The Pandemic Within the Pandemic

Assault, Bellingham Defense Attorney, Domestic Violence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Image result for coronavirus domestic violence

Excellent article by Jeffrey Kluger of Time discusses how growing evidence shows the Coronavirus Pandemic has made Domestic Violence more common—and often more severe.

Surveys around the world have shown domestic abuse spiking since January of 2020—jumping markedly year over year compared to the same period in 2019. According to the American Journal of Emergency Medicine and the United Nations group U.N. Women, when the pandemic began, incidents of domestic violence increased 300% in Hubei, China; 25% in Argentina, 30% in Cyprus, 33% in Singapore and 50% in Brazil. The U.K., where calls to domestic violence hotlines have soared since the pandemic hit, was particularly shaken in June by the death of Amy-Leanne Stringfellow, 26, a mother of one and a veteran of the war in Afghanistan, allegedly at the hands of her 45-year-old boyfriend.

In the U.S., the situation is equally troubling, with police departments reporting increases in cities around the country: for example, 18% in San Antonio, 22% in Portland, Ore.; and 10% in New York City, according to the American Journal of Emergency Medicine. One study in the journal Radiology reports that at Brigham and Women’s Hospital in Boston, radiology scans and superficial wounds consistent with domestic abuse from March 11 to May 3 of this year exceeded the totals for the same period in 2018 and 2019 combined.

And as the pandemic has dragged on, so too has the abuse. Just as the disease continues to claim more lives, quarantine-linked domestic violence is claiming more victims—and not just women in heterosexual relationships. Intimate partner violence occurs in same-sex couples at rates equal to or even higher than the rates in opposite sex partners.

What’s more, the economic challenges of the pandemic have hit same-sex couples especially hard, with members of the LGBTQ community likelier to be employed in highly affected industries like education, restaurants, hospitals and retail, according to the Human Rights Campaign Foundation. That means higher stress and, concomitantly, the higher risk that that stress will explode into violence.

Please read my Legal Guide titled Defending Against Domestic Violence Charges and  contact my office if you, a friend or family member are charged with a DV crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA: Bad State to Drive

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Studies, Vehicle Prowl, Vehicular Assault, Vehicular Homicide, Whatcom County Criminal Defense, , , ,

New Jersey - We Live In The 8th Worst State To Drive In

Apparently, Washington is one of the nation’s worst states to drive in, according to a new study released Tuesday.

The study, by personal finance website WalletHub, found that Washington ranks as the third-worst state for drivers, thanks mainly to steep gas prices, high rates of car theft, poor overall road quality, traffic congestion and other factors.

The only states with a worse rating than Washington are California and Hawaii, the report found. The best state for drivers is Texas, followed by Indiana at No. 2 and North Carolina at No. 3, according to the analysis.

The study arrived at the rankings by comparing all 50 states across 31 key metrics, such as traffic congestion, gas prices, auto maintenance costs, car theft rate and number of days with precipitation.

Specifically, the analysis found that Washington has the third-highest gas prices in the nation, the eighth-worst roads and ninth-highest car theft rate.

The only categories in which Washington was rated above average were its overall safety ranking, the number of car dealerships per capita and the number of auto repair shops per capita. The study also found that traffic congestion costs U.S. drivers $88 billion per year and wastes 99 hours of their time.

It’s also heartening to officials with Washington State Patrol and the Washington Traffic Safety Commission, which are among the agencies working toward Target Zero, a statewide effort to eliminate all fatal and serious injury traffic incidents by 2030. Critics of strict enforcement of speed limits charge that the link between speed and safety is exaggerated because of biases embedded in data collection and inaccuracies found in some police reporting on accidents.

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

Covid & Drug Overdoses

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Coronavirus Leads to More Drug Overdose Deaths · Napoli Shkolnik

Excellent article by Adriana Belmonte of yahoo!news reports that the Coronavirus Pandemic has had devastating mental health effects on Americans, and drug abuse is hitting record levels.

New data from the Centers for Disease Control and Prevention (CDC) revealed that over 81,000 drug overdose deaths occurred in the U.S. in the 12-month period ending in May 2020. That’s the highest number ever recorded by the CDC.

“This pandemic and all that’s come along with it has really just exacerbated those vulnerabilities and the shortcomings of our own approach to treating those people.” ~Dr. Ryan Marino, a medical toxicologist and emergency physician based out of Ohio.

Ms. Belmonte reports that in San Francisco, the number of overdose deaths (621) outpaced COVID-related deaths (173) in 2020. And more than 40 states reported annual increases in opioid overdose deaths, “as well as ongoing concerns for those with a mental illness or substance use disorder,” according to the American Medical Association.

According to Belmonte, a CDC survey in June found that 40.9% of Americans reported at least one adverse mental or behavioral health condition, with 13.3% of respondents having started or increased substance use to cope with stress or emotions related to COVID-19:

Please contact my office if you, a friend or family member face criminal allegations such as Drug Charges, Assault or Domestic Violence. Chances are, the various compounding stresses brought by the Coronavirus Pandemic could factor into the allegations. Hiring and experienced and effective criminal defense attorney is the first and best step towards justice.

DUI’s Raise Insurance

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Best Car Insurance Options After A DUI

Great article by Andrew Hammond of the Tacoma News Tribune says that according to the Northwest Insurance Council, extra patrols will be deployed to look out for impaired motorists this holiday season. And unfortunately, it doesn’t stop there.

Hammond also reports that NW Insurance Council President Kenton Brine said, “Long after the arrest, conviction, possible jail time and fines, the consequences of having a DUI citation can continue to increase the cost of insurance for offenders.”

“To an insurer, having a DUI indicates a highly risky driving history, which is a primary factor insurers use to determine auto insurance premiums. Insurance companies may review a motor vehicle report upon renewal of an auto policy to discover any citations, including a DUI. Drivers with an infraction for DUI would likely see a premium increase or surcharge, or their policy may not be renewed.”  ~Kenton Brine, President of the Northwest Insurance Council.

DUIs can be caused by the use of marijuana, prescription drugs and even over-the-counter drugs like Nyquil and Ambien as well as alcohol.

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.

Average Washingtonian Drinks Six Days in a Row During Holidays

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

Infographic: Drinking and DUIs During the Holidays

A survey from the Addiction-treatment.com shows that among 3,000 state residents 21 and older, the average Washingtonian drinks for six days in a row over the holiday season, without having a day off. It could be wine, beer, cider, or whatever a particular person’s choice is.

That puts Washington drinkers at the top of the list of states, according to the group. The average American drinks for four days in a row over the holidays, it says.

Some may be drinking to celebrate the end of 2020 but others may be drinking due to loneliness, depression and isolation. Here’s some other highlights from the organization’s 12 Days of Christmas infographic:

  • Almost half of respondents say drinking at Christmas is a family tradition.
  • Over 1 in 3 say they give alcohol as a gift to loved ones at Christmas.
  • A quarter admit they spike their morning coffee with alcohol during the holidays.

“It’s important that people not use the pandemic or the holidays to justify excessive drinking,” Brittney Morse, a spokesperson for Addiction-Treatment.com, said in a statement.

“We know that overindulgence in alcohol can start the process for bad habits and lead to unhealthy coping skills that could ultimately result in alcohol dependence. Now is a great time to establish new, healthy traditions that are not centered around the consumption of alcohol. This ensures every family member, even those in recovery, can enjoy the holiday traditions together.” ~Brittney Morse, a spokesperson for Addiction-Treatment.com

Please contact my office if you, a friend or family member are charged with a drug crime or alcohol-related crime over the holidays. The temptation to imbibe is especially pronounced these days due to the Coronavirus Pandemic. Hiring an experienced criminal defense attorney is the first and best step towards justice.

FBI Releases 2019 Hate Crime Statistics

Arson, Assault, Bellingham Defense Attorney, Burglary, Drug Offenses, Federal Crimes & Prosecutions, felony, Hate Crimes, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Promoting Prostitution, Race & Law, Rape, Robbery, Sex Crimes, Skagit County Criminal Defense, Studies, Theft of Motor Vehicle, Whatcom County Criminal Defense, , , ,

Pie chart depicting breakdown of motivations of bias-motivated crimes in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.