Tag Archives: Mt. Vernon Criminal Defense Attorney

Violent Crime Decreased – Except Rape

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

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

The 2018 National Crime Victimization Survey (NCVS), released Tuesday, is managed by the Bureau of Justice Statistics at the U.S. Justice Department. According to the authors, the data suggests that the violent crime rate in the U.S. remains on a decades-long downward trend, falling by 3.9 percent in 2018. Overall, the violent crime rate has plunged by more than 50 percent since the early 1990s.

The drops came across categories of violent offenses, including murder, non-negligent manslaughter and robbery, and property crimes like burglary, larceny and vehicle thefts, while aggravated assault numbers remained about flat.

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

So why the increase?

Apparently, in 2013, the FBI changed its outdated parameters of rape—then defined as the forcible “carnal knowledge of a female”—to a more modern definition structured around consent, rather than force.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

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

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

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

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

WA Supreme Court Invalidates “Community Caretaking” Search

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, felony, Fourth Amendment, Homicide & Manslaughter, law enforcement, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

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

BACKGROUND FACTS

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

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

COURT’S ANALYSIS & CONCLUSIONS

I. The Community Caretaking Exception

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Vacate Your Pot Conviction

Bellingham Defense Attorney, Drug Offenses, Legislation, marijuana, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,
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You can now vacate your pot conviction.
On Sunday, June 28th the Marijuana Justice Initiative was signed by Governor Jay Inslee. Consequently, many people with misdemeanor or gross misdemeanor marijuana convictions in Washington state can apply to have those convictions wiped from their records. The new law expands on the governor’s pardon offer in a few ways:
  • A pardon does not vacate a conviction.
  • People with multiple marijuana misdemeanor convictions are eligible.
  • The date of the conviction doesn’t matter.
  • The new law applies to violations of municipal ordinances, not just state law.

If you’re looking to get a conviction vacated, and none of the above limitations apply to you, the process is relatively simple:

  1. Find the court where your conviction occurred. If you’ve been convicted in multiple courts, you’ll need to apply in each court separately.
  2. Fill out the proper paperwork. The form you’ll submit is called a Motion and Declaration for Order Vacating Marijuana Conviction.
  3. File your motion with the court clerk’s office and ask to schedule a hearing. Follow their instructions from there.

Once a court vacates a conviction, the person is clear of all penalties that resulted from it, and it can’t be considered during sentencing for any subsequent conviction, according to a legislative analysis of the bill. Further, a person who has a conviction vacated can state that they have never been convicted of the crime when applying for housing or employment.

My opinion? This is excellent, progressive step toward decriminalizing low-level drug crimes. Please contact my office if you, a friend or family member are charged with a drug crime. Although Washington State passed initiatives which legalized marijuana possession, it’s comforting that our politicians are moving forward with legislation that gives defendants opportunities to vacate low-level marijuana convictions.

Please contact my office if you, a friend or family member face Drug Charges. Hiring an effective and competent defense attorney is the first and best step toward justice.

Overcoming Implicit Bias

Assault, Bellingham Defense Attorney, felony, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

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In State v. Berhe, the WA Supreme Court held that a trial court failed to adequately oversee allegations of racism and implicit bias among jurors deliberating in a Shoreline man’s first degree murder and first degree assault trial in 2016.

FACTUAL BACKGROUND

In 2016, a King County jury convicted Tomas Berhe, then 31, of murder and assault in a shooting in Seattle’s Eastlake neighborhood. Mr. Behre is African-American. He was convicted of killing 21-year-old Everett Williams, whom Berhe thought had shot his cousin. A second man who was in the Eastlake alley with Williams was also shot.

After the trial concluded with a guilty verdict in early 2016, the sixth juror contacted both defense attorneys and the court with concern, according to the opinion. Weeks later, Berhe asked the judge for a new trial and requested an evidentiary hearing to investigate the allegations of racial bias, among other concerns.

In a written declaration presented by the defense, the sixth juror said she was the only African American on the jury in the trial of an African American defendant and described being the last holdout among four jurors who had initially leaned against conviction.

By the trial’s end, the sixth juror said she only agreed to vote for a guilty verdict because she felt “emotionally and mentally exhausted from the personal and implicit race-based derision from other jurors,” the opinion quotes the declaration as saying.

The juror said others had mocked her as stupid and illogical when she suggested that Berhe could have taken the murder weapon from someone else. She described two jurors as taunting her, saying that she would “let him walk,” and said she felt mocked after several jurors interpreted something she’d said as commentary on police misconduct toward African Americans.

Responding to the defense’s declaration, prosecutors sent questions to several jurors asking if they themselves, or another juror, had done anything to the sixth juror that was motivated by racial bias during deliberations. Results were not conclusive, and the Superior Court judge found insufficient evidence of juror misconduct and denied a request for a new trial.

COURT’S ANALYSIS & CONCLUSIONS

First, the WA Supreme Court described how racial bias harms trial verdicts:

“Unlike isolated incidents of juror misbehavior, racial bias is a common and pervasive evil that causes systemic harm to the administration of justice. Also unlike other types of juror misconduct, racial bias is uniquely difficult to identify.”

Second, the Court reasoned that Courts must carefully oversee any inquiry into whether explicit or implicit racial bias influenced a jury verdict.

“Rather than permitting the parties alone to investigate allegations of racial bias, once a claim of racial bias is raised, inquiries into the influence of that racial bias on a jury’s verdict must be conducted under the court’s supervision and on the record,” said the Court. “Therefore, as soon as any party becomes aware that there are sufficient facts to support allegations that racial bias was a factor in the verdict, the court and opposing counsel must be notified.”

Third, the Court reasoned that the unique challenge of assessing implicit racial bias requires a searching inquiry before a court can decide whether an evidentiary hearing is needed. “Implicit racial bias is a unique problem that requires tailored solutions,” said the Court. “Therefore, when it is alleged that racial bias was a factor in the verdict, the trial court must oversee and conduct a thorough investigation that is tailored to the specific allegations presented before deciding whether to hold an evidentiary hearing and before ruling on a defendant’s motion for a new trial,” said the Court.

The Court concluded that the trial court abused its discretion by failing to exercise adequate oversight over the investigations into juror 6’s allegations of racial bias and by failing to conduct a sufficient inquiry before denying Berhe’s motion for a new trial without an evidentiaiy hearing. “We therefore vacate the trial court’s order denying Berhe’s motion for a new trial and remand for further proceedings.”

My opinion? Excellent decision. Groundbreaking, even. In what could be a first-of-its-kind rule nationwide, the judges’ opinion establishes procedures for trial court judges to investigate implicit racial bias reported during jury deliberations.

This isn’t the first time our Supreme Court has openly exercised judicial activism. In April, the state Supreme Court published General Rule 37, a rule for courts saying that challenges during jury selection based on implicit, institutional and unconscious race and ethnic biases should be rejected, she noted. Now, similar protection from bias extends into the jury room.

Excellent 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.

Flowers v. Mississippi: Supreme Court Finds Race-Based Peremptory Strikes Unlawful

Bellingham Defense Attorney, Constitutional Rights, Criminal Justice, felony, Homicide & Manslaughter, Jury Selection, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , , ,

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In Flowers v. Mississippi, the U.S. Supreme Court held that the State’s peremptory strikes in the defendant’s first four trials strongly supported the conclusion that the State’s use of peremptory strikes in the defendant’s sixth trial was motivated in substantial part by discriminatory intent.

BACKGROUND FACTS

Curtis Flowers was tried six separate times for the murder of four employees of a Mississippi furniture store. Flowers is black. Three of the four victims were white. At the first two trials, the State used its peremptory strikes on all of the qualified black prospective jurors.

In each case, the jury convicted Flowers and sentenced him to death, but the convictions were later reversed by the Mississippi Supreme Court based on prosecutorial misconduct. At the third trial, the State used all of its 15 peremptory strikes against black prospective jurors, and the jury convicted Flowers and sentenced him to death.

The Mississippi Supreme Court reversed again, this time concluding that the State exercised its peremptory strikes on the basis of race in violation of Batson v. Kentucky. Flowers’ fourth and fifth trials ended in mistrials. At the fourth, the State exercised 11 peremptory strikes—all against black prospective jurors. No available racial information exists about the prospective jurors in the fifth trial.

At the sixth trial, the State exercised six peremptory strikes—five against black prospective jurors, allowing one black juror to be seated. Flowers again raised a Batson challenge, but the trial court concluded that the State had offered race-neutral reasons for each of the five peremptory strikes. The jury convicted Flowers and sentenced him to death. The Mississippi Supreme Court affirmed. Flowers appealed.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kavanaugh delivered the opinion of the Court, in which Justices Roberts, Ginsburg, Breyer, Alito, Sotomayor and Kagan joined. Justices Thomas and Gorsuch dissented.

Kavanaugh began by discussing the history behind the landmark Batson v. Kentucky. In his majority opinion he explained that under Batson, once a prima facie case of discrimination has been shown by a defendant, the State must provide race-neutral reasons for its peremptory strikes. The trial judge then must determine whether the prosecutor’s stated reasons were the actual reasons or instead were a pretext for discrimination.

“Four categories of evidence loom large in assessing the Batson issue here, where the State had a persistent pattern of striking black prospective jurors from Flowers’ first through his sixth trial,” said Justice Kavanaugh.

The Court reasoned that here, a review of the history of the State’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that the State’s use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent:

“The State tried to strike all 36 black prospective jurors over the course of the first four trials. And the state courts themselves concluded that the State had violated Batson on two separate occasions. The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.”

The Court also reasoned that the State’s use of peremptory strikes in Flowers’ sixth trial followed the same discriminatory pattern as the first four trials.

“Disparate questioning can be probative of discriminatory intent,” said the Court.  “Here, the State spent far more time questioning the black prospective jurors than the accepted white jurors—145 questions asked of 5 black prospective jurors and 12 questions asked of 11 white seated jurors.”

Consequently, along with the historical evidence from the earlier trials, as well as the State’s striking of five of six black prospective jurors at the sixth trial, the dramatically disparate questioning and investigation of black prospective jurors and white prospective jurors at the sixth trial strongly suggest that the State was motivated in substantial part by a discriminatory intent.

Furthermore, the Court reasoned that comparing prospective jurors who were struck and not struck is an important step in determining whether a Batson violation occurred. “Here, Carolyn Wright, a black prospective juror, was struck, the State says, in part because she knew several defense witnesses and had worked at Wal-Mart where Flowers’ father also worked,” said the Court. “But three white prospective jurors also knew many individuals involved in the case, and the State asked them no individual questions about their connections to witnesses. White prospective jurors also had relationships with members of Flowers’ family, but the State did not ask them follow-up questions in order to explore the depth of those relationships.”

Finally, the Court ruled that the State also incorrectly explained that it exercised a peremptory strike against Wright because she had worked with one of Flowers’ sisters and made apparently incorrect statements to justify the strikes of other black prospective jurors. “When considered with other evidence, a series of factually inaccurate explanations for striking black prospective jurors can be another clue showing discriminatory intent,” said the Court. Consequently, the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. Pp. 26–30.

With that, the Supreme Court reversed Flowers’ conviction and remanded the case back to the trial court.

My opinion? Good decision. Although the facts and allegations are terrible for Mr. Flowers, prosecutors simply cannot use exercise race-based peremptory challenges to get 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.

Whatcom County Jail Settles ACLU Lawsuit

ACLU, Bail, Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Opoids, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Whatcom County Jail to provide medications to inmates to treat opioid addiction

A settlement agreement has been proposed in a federal civil rights lawsuit filed by the American Civil Liberties Union last year against the Whatcom County Jail and the Whatcom County Sheriff’s Office, according to a press release sent Tuesday from ACLU’s Washington chapter.

Filed in U.S. District Court for the Western District of Washington, the ACLU’s lawsuit, Kortlever v. Whatcom County et. al, challenged Whatcom County’s refusal to provide people access to MAT even though it provides other clinically appropriate medications to inmates. Singling out a group of people because of their disability and denying them access to medical services to which they would otherwise be entitled is prohibited under the Americans with Disabilities Act. Whatcom County’s willingness to change its policies means that the court will not have to decide whether the previous policy was unlawful.

The lawsuit, filed in June 2018, alleged the jail had a policy for giving medication, such as buprenorphine (Suboxone or Subutex) or methadone, to pregnant women suffering from opioid use disorder, but had no policy for non-pregnant individuals, essentially forcing them to go into withdrawal once they were booked, according to court records.

Under the settlement, the Whatcom County Jail now will provide people in the jail with medication-assisted treatment (MAT) services to treat opioid use disorder, according to a press release sent Tuesday from the sheriff’s office.

Opioid use disorder is classified as a disability under the Americans with Disabilities Act, and also is a recognized substance use disorder. A person qualifies as having opioid use disorder if they meet two or more criteria that reflect impaired health function over a 12-month period. The disorder is a chronic condition and is often accompanied by changes to brain chemistry, the ACLU release stated.

Please read my Legal Guide titled, Making Bail and  contact my office if you, a friend or family member are in jail and face criminal charges. Being incarcerated brings a considerable strain on family, mental health, employment and quality of life. A competent defense attorney can argue a motion to release the defendant or reduce bail.

Cities Can’t Criminalize Homelessness

ACLU, Bellingham Defense Attorney, Eighth Amendment, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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Great article by  Patrick Sisson of Curbed describes how the Ninth Circuit’s Martin v. City of Boise, held that city law enforcement cannot  criminalize homelessness . They cannot arrest or punish people for sleeping on public property unless they provide adequate and relatively accessible indoor accommodations.

BACKGROUND FACTS

The Martin case, which originated in 2009 when six residents sued the city, argued that laws against sleeping in public and qualifying that action as Disorderly Conduct were unconstitutional, specifically discussed reasonable and accessible spots for everyone. That means having beds accessible for the disabled and for pregnant women and families. An important argument in the Martin case concerned faith-based services that required those staying there to pray in a certain manner. Judges declared spots that coerced religious observation were not accessible to all.

The April 1 decision by the Ninth Circuit Court of Appeals, which covers nine states in the western U.S. including California and Washington, rejects a petition to challenge a September ruling on the case. The 2-1 decision by a panel of three judges means that the earlier decision by the court stands, an affirmation of the theory that criminalizing people for camping of sleeping in public without any place to go is illegal.

“The government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

~Ninth Circuit Court of Appeals

The ruling means unless there is enough shelter space for the homeless population of a city such as Seattle or San Francisco, city officials can’t enforce anti-vagrancy laws or prohibitions against camping in public parks or sidewalks. The court can’t force cities to build adequate shelter space or homeless housing, but it can make it unconstitutional for them to criminalize homelessness until that burden has been met.

Reporter Patrick Sisson wrote that Eve Garrow, a homelessness policy analyst and advocate for the American Civil Liberties Union (ACLU), expects that advocacy groups such as her own will soon engage in proactive public education campaigns to ensure municipalities are aware of the Martin decision and the group’s interpretation of the court ruling.

“I do believe if cities and counties continue to enforce in a way that’s now clearly unconstitutional, advocacy organizations will engage in litigation to protect the civil rights of these people,” she says.

The legal reasoning grew out of an interpretation of the Eighth Amendment and its prohibition on cruel and unusual punishment, according to Ms. Garrow.

“You’re criminalizing someone for behavior that’s unavoidable,” she says. “Everyone has to sleep.” In effect, she says, municipal laws that ban sleeping in public are making it illegal to be poor.

Steve Berg, vice president of programs and policy for the National Alliance to End Homelessness, says the decision has gotten a lot of attention, and will hopefully accelerate the movement towards more supportive housing and services.

“There are still too many people in local governments who think the right answer to homelessness is arresting people,” he says.

Good decision, Ninth Circuit.

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.

Necessity Defense vs. Climate Change

Bellingham Defense Attorney, Burglary, Necessity Defense, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In State v. Ward, the WA Court of Appeals held that a defendant who was charged with burglary in the second degree after he broke into a pipeline facility and turned off a valve, which stopped the flow of Canadian tar sands oil to refineries in Skagit and Whatcom Counties, was entitled to argue a necessity defense to the jury. The defendant contended that his commission of the crime was necessary to avoid harm to the climate, as governments had failed to meaningfully address the crisis of climate change.

BACKGROUND FACTS

Kinder Morgan transports tar sands oil from Canada into the United States by pipeline. On October II, 2016, Kinder Morgan was notified by telephone that persons “would be closing a valve, one of our main line valves in the Mount Vernon area within the next 15 minutes.” Following the call, Ward cut off a padlock and entered the Kinder Morgan pipeline facility off of Peterson Road in Burlington, WA. Ward then closed a valve on the Trans-Mountain pipeline and placed sunflowers on the valve. At the same time, other protesters closed similar valves in North Dakota, Montana, and Minnesota. Collectively, the protests temporarily stopped the flow of Canadian tar sands oil from entering into the United States.

Ward was arrested at the pipeline facility and charged with burglary in the second degree, criminal sabotage, and criminal trespass in the second degree. Ward admitted his conduct but argued that his actions were protected under a necessity defense. The trial court granted the State’s pretrial motion in limine to preclude all witnesses and evidence offered in support of Ward’s necessity defense.

Ward’s first trial ended with a hung jury. The State then recharged Ward with burglary in the second degree and criminal sabotage. Ward moved for reconsideration of the trial court’s order granting the State’s motion in limine. In support of his motion, Ward offered argument, the curriculum vitae for eight proposed expert witnesses, and voluminous scientific evidence documenting the impacts of climate change, that climate change is primarily caused by greenhouse gas emissions resulting from human activity, and the contribution of burning tar sands oil.

The trial court denied Ward’s motion for reconsideration and excluded all testimony and evidence in support of Ward’s necessity defense. A second jury found Ward guilty of burglary but were unable to return a verdict on criminal sabotage. Ward appealed on arguments that the trial court denied his constitutional right to present a defense by striking all testimony and evidence of necessity.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that the Sixth Amendment to the United States Constitution and article 1, sections 21 and 22 of the Washington Constitution guarantee a defendant the right to trial by jury and to defend against criminal allegations. If Ward submitted a sufficient quantum of evidence to show that he would likely be able to meet each element of the necessity defense, then the trial court’s exclusion of evidence in support of his sole defense violated Ward’s constitutional rights.

NECESSITY DEFENSE

The Court explained that the Necessity is available when the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law. To successfully raise the necessity defense the defendant must prove, by a preponderance of the evidence, that: (1) they reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative existed.

THE NECESSITY DEFENSE APPLIES

The Court held that that here, Ward’s necessity defense applies. In short, Ward’s past successes in effectuating change through civil disobedience in conjunction with the proposed expert witnesses and testimony about Ward’s beliefs were sufficient evidence to persuade a fair minded, rational juror that Ward’s beliefs were reasonable.

First, Ward offered evidence that he has been working with environmental issues for more than 40 years but that the majority of his efforts failed to achieve effective results. Ward asserted that because of these failures he came to understand that the issue of climate change would require other than incremental change and that direct action was necessary to accomplish these goals.

Second, Ward offered sufficient evidence to show that the harms of global climate change were greater than the harm of breaking into Kinder Morgan’s property. Ward asserted that the extent of the harm resulting from his actions were the loss of a few locks and the temporary inconvenience to Kinder Morgan’s employees. Compared to this, Ward introduced “voluminous scientific evidence of the harms of climate change.”

“When civil disobedience and the necessity defense intersect, it is the intent of the protester, not the effectiveness of the protest, that is of the utmost relevance.”

Furthermore, the Court of Appeals reasoned that Ward’s actions were not intended to be merely symbolic in nature because the harms that Ward asserted he was trying to alleviate were more than just climate change, generally, but also included both the specific dangers of Canadian tar sands oil and the impacts of sea level rise on Washington.

“As such, the evidence he planned to introduce was not solely aimed at inducing jury nullification and the trial court erred in preventing Ward from introducing evidence in support of his necessity defense,” said the Court of Appeals.

With that, the Court of Appeals reversed and remanded Ward’s conviction.

My opinion? I’m proud and impressed that our Court of Appeals allowed such a broad and permissive view of the Necessity defense. Apparently, the harm that climate change brings may necessitate  drastic measures.

Please contact my office if you, a friend or family member face criminal charges where the Necessity Defense could be argued and proven. Cases like State v. Ward show that a strong, well-supported defense of Necessity should be liberally given to juries when the facts support the defense. Kudos to Mr. Ward’s defense counsel for taking the case to jury, appealing the judge’s rulings and getting a successful outcome on appeal. Excellent work.

Many Washington Inmates Are Eligible for Release.

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Pretrial Release, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

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Excellent article by  reporter Chad Sokol of the Spokesman Review describes how, on any given day, thousands of inmates in Washington jails are eligible to be released based on their likelihood to commit new crimes and show up to court before trial, according to a new report from the state auditor’s office.

Auditors found roughly one-third of the state’s jail inmates are candidates for pretrial services such as electronic monitoring, mental health and substance abuse treatment, and texts and phone calls that remind people of court dates.

The auditors also found the cost of incarceration significantly outweighs the cost of pretrial services, concluding such reforms could save $6 million to $12 million in taxpayer money each year while maintaining public safety.

The audit, published last week, makes no policy recommendations but reaffirms what criminal justice activists have been saying for years: The cash bail system disadvantages the poor and fuels recidivism.

“When defendants cannot afford to pay bail, they remain in jail until the trial. Keeping them in jail is costly to the taxpayers . . . Perhaps more importantly, extended jail time before trial can have significant consequences for defendants, as they become more likely to be convicted, more likely to receive a longer sentence, and less likely to gain and maintain future employment.” ~ WA State Auditor’s Office

According to reporter Sokol, the state auditors examined 2016 jail inmate data using the Public Safety Assessment, a risk-assessment tool created by the Laura and John Arnold Foundation. About half of the 4,700 inmates deemed eligible for release were considered likely to reoffend without monitoring and services, while the rest were considered low-risk.

The auditors specifically examined data from Spokane and Yakima counties, which have made concerted efforts to reduce jail overcrowding and eliminate socioeconomic disparities. The auditors found that defendants given pretrial services reoffended at slightly lower rates than those released on bail, but in Spokane County the difference was not statistically significant.

Defendants released through pretrial services in Spokane County, however, were much more likely to show up to court than those released on bail, the auditors found. Failure-to-appear rates for the two groups were 38 percent and 53 percent, respectively.

The audit accompanies another report, published in February by Washington’s Pretrial Reform Task Force, which makes a range of policy recommendations aimed at safeguarding the presumption of innocence enshrined in the Constitution.

“The use of a pretrial services department can be really helpful in assisting people getting to court or remembering court dates,” said Municipal Court Judge Mary Logan, who co-authored the task force report with state Supreme Court Justice Mary Yu and King County Superior Court Judge Sean O’Donnell.

Logan noted bail is “not supposed to be a punitive measure,” and with few exceptions, court rules require defendants be released before trial. The task force concluded the government – not defendants – should bear the cost of pretrial services.

“Accused persons cannot and should not be required to incur additional costs or debts as a result of their participation in pretrial services,” they wrote.

Spokane County’s criminal justice administrator, Maggie Yates, said the task force report validates the county’s reform efforts funded by the MacArthur Foundation.

My opinion? This is good news. Releasing individuals when it’s appropriate not only makes sense legally, but ethically and financially as well. Individuals facing charges may continue to support their families, pursue and maintain employment, and seek out mental health or substance use treatment while navigating court proceedings. The resulting stability only makes our community safer.

Please read my Legal Guide taking Making Bail and contact my office if you have a friend or family member who is incarcerated and facing criminal charges. Hiring an effective and competent defense attorney is the first and best step toward justice. Under CrR 3.2, judges can lower bail or release defendants on their personal recognizance while the charges are pending.

Victim Restitution

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Possession of Stolen Property, Restitution, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for bobcat tractor

In State v. Romish, the WA Court of Appeals held that a defendant’s obligation to pay a victim’s restitution in possession of stolen property cases is only limited to damage that the State can prove was caused by the defendant’s conduct.

BACKGROUND FACTS

Mr. Romish pled guilty to possession of stolen property of a Bobcat tractor. In his guilty plea statement, Mr. Romish admitted to knowingly possessing stolen property, but he denied altering the condition of any of the property in his possession. He also did not indicate when he came into possession of the stolen property.

At the plea and sentencing hearing, Mr. Romish’s attorney agreed that restitution could be ordered if the State showed a causal connection between the damage to the Bobcat and Mr. Romish’s possession of it, but expressed doubts that the State could establish such a connection. Mr. Romish denied altering the condition of the Bobcat. Counsel also disputed the amount of claimed damages and requested a separate hearing on restitution.

A restitution hearing was held October 12, 2017. The only witness to testify was the owner of the stolen property. He described the damage that was sustained by the Bobcat as a result of the theft. He also explained that the Bobcat had been repainted in a haphazard manner and that a taillight had been broken. Although there did not appear to be any functional damage, the owner had the Bobcat serviced it, just to make sure.

Receipts showed the service, repair and repainting costs totaled $4,897.42. In addition to having the Bobcat repaired and serviced, the owner testified he had to rent replacement equipment during the period that the Bobcat was unavailable for use in his excavation business. Rental fees were incurred not only for the period that the Bobcat was missing as stolen, but also for the time the Bobcat was out of commission for service and repairs. The total rental cost was $4,928.46.

On cross-examination, the property owner denied knowing who stole the Bobcat or
who had repainted it. The owner testified that the paint on the Bobcat was neither fresh
nor wet when it was recovered. And the property owner denied seeing any paint at the
location where the Bobcat was recovered.

After the close of evidence, the trial court ordered Mr. Romish to pay restitution for all costs associated with the disappearance, repair and repainting of the Bobcat. Although the court recognized Mr. Romish had not been convicted of stealing the Bobcat, it nevertheless reasoned it could find at least by a preponderance of the evidence that the damage to the Bobcat had occurred while it was in Mr. Romish’s possession. The total amount of restitution was set at $9,825.88.

Mr. Romish appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals took Mr. Romish’s side. It vacated the trial court’s restitution order and remanded Romish’s matter for a new restitution hearing.

“The law of restitution relies on causation . . .” said the Court of Appeals, ” . . . and that reliance creates a distinction between theft and possession of stolen property.” Furthermore, the Court reasoned that culpability for possession of stolen property does not necessarily include culpability for the stealing of the property. “The actual thief is guilty of a different crime.”

The Court further reasoned that when a defendant has been convicted of possessing—but not the theft of—stolen property, sentencing courts must ensure a true causal connection links the defendant’s conduct to the victim’s losses. The mere fact that property was recently stolen does not permit inferring causation. “Instead, we require more specific evidence tying the defendant’s conduct to the victim’s losses,” said the Court.

Here, the Court held that no such evidence was presented in Mr. Romish’s case:

“Although the Bobcat was found in a barn at Mr. Romish’s residence, there was no evidence of painting supplies or recent painting activities at that location. Nor were there shards of glass or plastic that might signify the tail light had been broken at Mr. Romish’s
residence. In addition, the paint on the Bobcat was not fresh. This suggests that at least some time had passed between the repainting of the Bobcat and the date of its recovery by law enforcement.”

Additionally, the evidence presented at the hearing doidnot link Mr. Romish’s criminal conduct to many of the victim’s claimed damages. “No evidence was presented that might lead one to believe the Bobcat would not have been repainted or the taillight broken ‘but
for’ Mr. Romish’s possession,” said the Court of Appeals. “In like manner, there is no reason to think Mr. Romish’s possession of the Bobcat was the ‘but for’ cause of the victim’s rental fee expenses prior to the offense conduct date of August 23, 2016. Given these circumstances, the order of restitution must be reversed.”

My opinion? This case presented an interesting question regarding causation and damages in a criminal law context. Although the victim’s plight is sympathetic, and although there was substantial evidence that Mr. Romish stole the Bobcat, the Court was correct in its ruling that the State lacked evidence showing that Mr. Romish actually damaged the stolen Bobcat. Theft and property damage require two different levels of proof.

Please contact my office if you, a friend or family member face criminal charges. A defendant’s obligation to pay restitution to the victim of a crime is a huge issue in criminal law. Hiring competent and experienced defense attorney is a step in the right direction.