Tag Archives: Mount Vernon Criminal Defense

Coronavirus-Related Crimes Increase

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Informative article featured in the Seattle Times by Michael Balsamo, Colleen Long and Rodney Muhumuza reports that Coronavirus-related fraud are on the rise, along with concerns about hate crimes.

The Anti-Defamation League, which tracks hate groups, blames the virus for elevating racist and anti-Semitic messages, including suggesting that Jews are somehow responsible for the pandemic. Some hate groups have suggested tainting doorknobs or other surfaces with the virus so FBI and police officers fall ill.

Hundreds of masks have been stolen in Portland, Oregon, amid shortages for health care workers. Also, a Missouri man who was coughing told two store clerks he had a high fever. He was arrested after police said he threatened to give the employees coronavirus. People in Pennsylvania and Illinois were accused of similar crimes. Texas prosecutors brought charges against someone who falsely claimed on social media to have tested positive for COVID-19.

In a memo issued Tuesday, Deputy Attorney General Jeffrey Rosen told prosecutors they could charge people who threaten to spread the new coronavirus under U.S. terrorism statutes because the Justice Department considers it a “biological agent” under the law. In such cases, suspects could be charged with a number of offenses, including possessing or developing a biological agent as a weapon, he said.

“Threats or attempt to use COVID-19 as a weapon against Americans will not be tolerated,” Rosen wrote in the memo to U.S. attorneys across the country and the heads of all Justice Department agencies, including the FBI.

The World Health Organization (WHO) and other authorities are also working to debunk spurious claims about possible cures. They include false assertions that silver, bleach, and garlic could protect against the coronavirus, or that bananas prevent it. The WHO also says criminals are increasingly posing as WHO officials in calls and phishing emails to swipe information or money. The United Nations also set up a website to help prevent fraud.

Meanwhile, the United Kingdom’s National Fraud Intelligence Bureau has received more than 100 reports of virus-related scams, with losses totaling more than $1.1 million (970,000 pounds).

In the United States, marketing schemers have quickly pivoted to offering “senior care packages” that include hand sanitizer or even a purported vaccine, which doesn’t exist. Some falsely claim that Trump has ordered that seniors get tested. It’s all a trick to get personal information that can be used to bill federal and state health programs, health officials said.

“It’s a straight-up ruse to get your Medicare number or your Social Security number under the guise of having a test kit or a sanitary kit sent to you,” Christian Schrank, assistant inspector general for investigations at Health and Human Services.

“Emergency Order” Laws

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Interesting article by David Rasbach of the Bellingham Herald provokes some interesting discussion of the laws surrounding Social Distancing and/or proper distancing to help prevent the spread of COVID-19 (Coronavirus) when they encounter large groups.

Recently, Gov. Jay Inslee issued a sweeping statewide stay-at-home order to help stem the spread of the deadly coronavirus that has killed at least 110 in Washington.

“This is a human tragedy on a scale we can not project,” Inslee said. “To be socially irresponsible during these times is to risk the lives of our loved ones.”

The emergency proclamation requires people to stay at home for at least two weeks unless it is absolutely necessary to leave for such essentials as groceries or medicine or for an essential job, said a spokesperson for the governor. It also requires a number of businesses to close that have remained open so far.

This measure was foreseeable. Emergency proclamations are done in the interest of public safety. According to comments made to Mr. Rasbach by Officer Murphy of the Bellingham Police Department, however, RCW 43.06.250 actually helps police enforce criminal charges against people who do not follow the emergency proclamation. It states:

“Any person upon any public way or any public property, within the area described in the state of emergency, who is directed by a public official to leave the public way or public property and refuses to do so shall be guilty of a misdemeanor.” ~RCW 43.06.250

Interesting.

By all means, please keep yourself and other people safe from Coronavirus during these trying times. Doing so means following governmental directives when instructed to do so.

That said,  it seems egregious that failing to disburse or otherwise leave a public or private property under certain circumstances can lead to criminal charges. What are the homeless people supposed to do? What if there’s no intention to break the law? And/or what if there’s an emergency situation necessitating the need to be at a certain place at a specific time?

Please contact my office if you, a friend or family member face criminal charges for violating a governmental “State of Emergency” proclamation. Hiring an experienced defense attorney like myself is the first and best step toward getting justice.

Skagit Courts Respond to Coronavirus

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Reporter Kera Wanielista of the Skagit Valley Herald says in a recent article that the Skagit County Superior Court is suspending some of its operations in an effort to slow the spread of COVID-19. These efforts include postponing trials, asking lawyers to only seek hearings on matters that cannot wait and telling those who are showing signs of illness to avoid courtrooms and court offices.

“We’re not going to be able to stop,” presiding Skagit County Superior Court Judge Dave Svaren said. “What we can do is reduce the population.”

As a result, all 12-person jury trials are suspended for at least two weeks, according to an administrative order signed Thursday by Svaren.

“Attorneys and pro-se litigants should use their best judgment in deciding whether a matter is emergent taking into consideration the current public health emergency,” the order states.

My opinion? Good decision. Although defendants have the constitutional right to a speedy trial, the public health concerns brought by COVID-19 create a risk that the juries can be unnecessarily exposed to the virus.

Coronavirus Suspends Local Jury Trials

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Informative article by Denver Pratt of the Bellingham Herald reports that several Whatcom County courts are suspending jury trials due to the COVID-19 outbreak.

Whatcom County Superior and District Courts and Bellingham Municipal Court announced they are suspending all jury trials until early April and May, respectively.

Pratt reports that the emergency administrative orders that were signed on Wednesday, March 11, by the courts’ presiding judges are due to concerns over the risk of bringing together jurors in small spaces and large groups of people called for jury duty.

Last week, the Washington State Supreme Court signed an order that gave county courts’ presiding judges the authority to change or suspend court rules as a way to address the public health emergency. On Friday, March 6, federal courts in Seattle and Tacoma also suspended jury trials in response to the novel coronavirus outbreak.

Also according to Pratt, Washington state Gov. Jay Inslee banned gatherings and events of more than 250 people in King, Snohomish and Pierce counties. The World Health Organization also declared Wednesday that the global coronavirus crisis is now a pandemic.

Whatcom County had its first confirmed case of novel coronavirus Tuesday, March 10, and the county declared a public health emergency. As of Thursday, March 12, afternoon, Whatcom County had 19 pending tests for COVID-19, which is down from 21 on Wednesday.

New Year’s Eve DUI Patrols

Image result for A New Year but an old truth- There’s no safe place for impaired drivers to hide. 

The WA State Patrol (WSP) issued a press release stating WSP Troopers will be out looking for impaired drivers this week in preparation for the New Year. Patrols will be increased to include Troopers brought out to supplement regularly assigned patrols. WSP has partnered with five other states to form the Western States Traffic Safety Coalition. Washington, Oregon, California, Idaho, Nevada and Arizona are working together to save lives by removing impaired drivers from all of our roadways. The message is clear; A New Year but an old truth- There’s no safe place for impaired drivers to hide.

These extra patrols will include specially trained troopers to help identify and detect drug impaired drivers. Most WSP troopers receive additional training in drug impaired driver detection. This training, Advanced Roadside Impaired Driving Enforcement (ARIDE) is specifically focused on detecting drivers impaired by drugs. Troopers trained as Drug Recognition Experts (DRE) will also be out to assist in identifying and detecting drug impaired drivers. DREs receive training to identify what drugs a driver may be impaired by.

Please contact my office if you, a friend or family member face DUI or any other alcohol-related driving crimes. It’s imperative to hire an experienced defense attorney who is knowledgeable of DUI defense.

Rape By Forcible Compulsion or Consent?

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In State v. Knapp, the WA Court of Appeals held a defendant charged with rape by forcible compulsion is not entitled to a jury instruction that requires the State to prove the absence of consent beyond a reasonable doubt.

BACKGROUND FACTS

Mr. Knapp and Ms. Spaulding met in high school and were friends for more than a decade. On February 7, 2016, Ms. Spaulding was preparing to watch the Super Bowl when Knapp came to her home. Ms. Spaulding let him in. The events following this were disputed.

According to Ms. Spaulding, Knapp began to make sexual comments toward her and expressed an interest in having sex. Ms. Spaulding denied his advances. Knapp then left, but soon returned to the home, claiming he forgot his bandana. Ms. Spaulding let him in again and while she was sitting on the couch, Knapp threw her to the ground and pulled down her pants.

Ms. Spaulding screamed for her neighbors, but they did not hear her. Knapp then used his bandana to gag her. The struggle continued until Knapp pinned her against a wall and raped her. Ms. Spaulding continued to say, “No,” “Stop,” and “Don’t do this.” Knapp left, and Ms. Spaulding called her mother and then the police. Ms. Spaulding was taken to the hospital where she underwent a sexual assault examination.

According to Knapp, he and Ms. Spaulding were “friends with benefits” for years and engaged in sex together on and off. After Ms. Spaulding let him in the first time, Ms. Spaulding realized Knapp was high on methamphetamine and she hinted that she wanted some. Knapp refused to give her any. Ms. Spaulding became upset, and Knapp decided to leave.

After he left, Knapp realized he forgot his bandana and returned to retrieve it. Ms. Spaulding let him in again, and she pressed Knapp to get her high. Eventually, Ms. Spaulding offered sex for drugs. At that point, Knapp “gave in” and they had sex. Afterward, Knapp could not find the methamphetamine to give to her. Ms. Spaulding became upset and threatened to call the police and falsely accuse him of rape. Knapp left and was later arrested. The State charged Knapp with rape in the second degree by forcible compulsion.

THE TRIAL

At trial, Knapp requested a jury instruction that told the jury the State had the burden of proving an absence of consent beyond a reasonable doubt. The State opposed this instruction, arguing it was not a correct statement of the law. The State instead proposed Washington pattern jury instruction 18.25, which reads, “Evidence of consent may be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse.”

The trial court declined to give Knapp’s proposed instruction and instead gave the State’s. The jury found Knapp guilty of second degree rape. The trial court sentenced Knapp to a midrange sentence—110 months to life.

Knapp appealed on the issue of whether the jury was properly instructed on the issue of consent.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that at trial, each party is entitled to have the jury instructed on its theory of the case when there is sufficient evidence to support that theory.

“Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law,” said the Court. “Read as a whole, the jury instructions must make the legal standard apparent to the average juror.”

Here, both parties relied heavily on State v. W.R., a case which apparently offers confusing interpretations of which party in a criminal sex case has the burden of proving consent.

The Court acknowledged that Knapp argued that W.R. stands for the proposition that the burden to prove consent has now shifted to the State, and the State must prove a lack of consent beyond a reasonable doubt. Knapp’s proposed jury instruction read: Consent means that at the time of the act of sexual intercourse there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The Defendant has no burden to prove that sexual intercourse was consensual. It is the State’s burden to prove the absence of consent beyond a reasonable doubt.”

However, the Court of Appeals disagreed with Knapp:

“The court in W.R. focused on whether the burden to prove consent was correctly placed on the defendant. It did not hold that the State must prove the absence of consent.”

The Court ruled that the trial court did not commit legal error when it denied Knapp’s proposed instruction. “Knapp’s proposed instruction was an incorrect statement of the law,” it said. “W.R. did not hold that the burden to prove an absence of consent shifted to the State. Instead, it held that the burden to prove consent cannot be placed on the defendant.”

Furthermore, when read as a whole, the trial court’s instructions allowed Knapp to argue his theory of the case. “Knapp claimed the sexual intercourse was consensual,” said the Court of Appeals. “The court’s instructions on the elements of the offense and consent allowed Knapp to argue his theory of the case—that Ms. Spaulding consented to sexual intercourse and the State failed to prove forcible compulsion beyond a reasonable doubt.”

With that, the Court of appeals affirmed Knapp’s conviction.

Please contact my office if you, a friend or family member face criminal sex charges. Consent is a viable defense, and evidence of consent may be considered by the jury. Therefore, it’s imperative to hire a defense attorney knowledgeable of the law surrounding these issues.

State-Created Danger Doctrine and Domestic Violence Victims

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In Martinez v. City of Clovis, the Ninth Circuit Court of Appeals held that police officers investigating a DV crime breached the victim’s Due Process rights by intensifying her peril. The Court held that the State-Created Danger Doctrine applies when an officer reveals a domestic violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity. Consequently, the police officers breached Due Process by intensifying the victim’s peril.

BACKGROUND FACTS

Ms. Martinez was a victim of domestic violence. After reporting an incident to police, the investigating officers took her statement in confidence as to physical and sexual abuse by her boyfriend Mr. Pennington in a hotel and then repeated the substance in the presence of the abuser. That night or the next day, Pennington again attacked Martinez, this time resulting in his arrest. Consequently, Ms. Martinez recanted her accusations out of fear that she would again be attacked. Later, Ms. Martinez sued the investigating officers and the Clovis Police Department.

LEGAL ISSUE

Whether Ms. Martinez can recover damages under 42 U.S.C. § 1983 from the law enforcement officers who allegedly placed her at greater risk of future abuse.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit Court of Appeals held that the State-Created Danger Doctrine applies because actions of the police put Martinez in greater jeopardy than if they had not arrived. It reasoned that officer Hershberger told Mr. Pennington about Martinez’s testimony relating to his prior abuse, and also stated that Martinez was not ‘the right girl’ for him.

“A reasonable jury could find that Hershberger’s disclosure provoked Pennington, and that her disparaging comments emboldened Pennington to believe that he could further abuse Martinez, including by retaliating against her for her testimony, with impunity,” said the Court. “The causal link between Hershberger’s affirmative conduct and the abuse Martinez suffered that night is supported by Martinez’s testimony that Pennington asked Martinez what she had told the officer while he was hitting her.”

“A reasonable jury could find that Pennington felt emboldened to continue his abuse with impunity.”

The Court further reasoned that the State-Created Danger Doctrine applies when an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity.

Nevertheless, the Court also decided the officers were entitled to Qualified Immunity because the law with respect to state-created danger doctrine was not clearly established. He added: “Going forward, the law in this circuit will be clearly established that such conduct is unconstitutional.”

Good opinion. Please contact my office if you, a friend or family member face criminal charges relating to domestic violence allegations.

Holiday DUI Patrols

According to an article in the Skagit County Herald, law enforcement agencies across the state are participating in emphasis patrols that search for motorists driving under the influence of drugs and alcohol.

Drivers impaired by alcohol, marijuana and other drugs are involved in half of all traffic deaths in Washington, according to the state Traffic Safety Commission. From 2013-17, 1,268 people were killed in such crashes.

“These tragedies are completely preventable,” commission Director Darrin Grondel said in a notice of the emphasis patrols. “As a community, we can end DUI-related deaths. We are asking for help. If you are in the position to prevent someone else from driving impaired, please be bold. Offer to call them a ride or give them a safe place to sober up.”

In a recent commission survey, 81% of respondents said they would try to prevent someone from driving impaired.

The Washington State Patrol has investigated 18 fatal collisions year to date with the majority caused by impaired drivers. The Mobile Impaired Driving Unit (MIDU) will also be deployed in a central location for all law enforcement to use during this emphasis. There will be processors on board along with a phlebotomist for search warrant blood draws if necessary. This will allow for the suspected impaired drivers to be dropped off and allow law enforcement to return to patrol for additional impaired drivers.

The MIDU is a self-contained 36 foot motorhome that has been retrofitted as a mobile DUI processing center and incident command post. The MIDU is equipped with three breath testing instruments, two temporary holding cells, three computer work stations, an incident command computer terminal, a dispatcher console with wireless access to WSP dispatch centers and a microwave downlink tower for real time broadcasts from WSP aircraft. This is a full service police station on wheels.

Unlawful Search Of Electronic Devices at Airports

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Good news. In a major victory for privacy rights at the border, a federal court in Boston ruled that suspicionless searches of travelers’ electronic devices by federal agents at airports and other U.S. ports of entry are unconstitutional.
The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
“This ruling significantly advances Fourth Amendment protections for millions of international travelers who enter the United States every year,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”
“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, EFF Senior Staff Attorney.
The district court order puts an end to Customs and Border Control (CBP) and Immigration and Customs Enforcement (ICE) asserted authority to search and seize travelers’ devices for purposes far afield from the enforcement of immigration and customs laws. Border officers must now demonstrate individualized suspicion of illegal contraband before they can search a traveler’s device.
The number of electronic device searches at U.S. ports of entry has increased significantly. Last year, CBP conducted more than 33,000 searches, almost four times the number from just three years prior.
International travelers returning to the United States have reported numerous cases of abusive searches in recent months. While searching through the phone of Zainab Merchant, a plaintiff in the Alasaad case, a border agent knowingly rifled through privileged attorney-client communications. An immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for friends’ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search.
Good decision!
Please contact my office if you, a friend or family member face criminal charges because law enforcement officers conducted a questionably unlawful search. Hiring competent counsel is the first and best step toward getting justice.

Warrant Quash Day!

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In an effort to address the warrants currently in the system, the Whatcom County Prosecuting Attorney’s Office will be holding their annual Warrant Quash Day event Wednesday, November 20, 2019 from 10:00 a.m. – 12:00 p.m.

Anyone with an outstanding warrant, issued in Whatcom County, is encouraged to come to the event. Individuals will be issued a notice to appear document with a new court date, so they can take care of their original violation, without fear of arrest. The outstanding arrest warrant for the original charge will be removed from the warrant system.

“We are hopeful the annual Warrant Quash Day will provide a pathway for individuals to get their cases back on track,” stated Eric Richey, Whatcom County Prosecuting Attorney. “We are providing community members with active warrants the opportunity to take control of their current situation.”

Participating courts include Bellingham Municipal Court, Blaine Municipal Court, Everson Municipal Court, Ferndale Municipal Court, Lynden Municipal Court, Sumas Municipal Court, and Whatcom County courts.

My opinion? This is good. I join the Prosecutor’s Office in urging defendants to quash their warrants, especially as the holidays approach. Avoid going to jail on unresolved criminal charges. And please read my Legal Guide Titled, “Quash Your Bench Warrant” and contact my office if you, a friend or family member have an open warrant for an unresolved criminal matter.