Tag Archives: Mt. Vernon Criminal Defense Attorney

State v. Armstrong: Prosecutor Not Obligated to Bring Video Evidence

Bellingham Defense Attorney, Constitutional Rights, Discovery, Domestic Violence, Due Process, Evidence, felony, Jury Trial, law enforcement, No Contact Order, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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I’m often asked by Clients, “Why can’t you make the Prosecution get video surveillance evidence from crime scene?” This recent case explains why.

In State v. Armstrong, the WA Supreme Court held that the Prosecutor’s failure to obtain a copy of the AM/PM store’s surveillance video prior to the store’s destruction of the video pursuant to the store’s policy, did not violate the defendant’s due process rights.

FACTS & BACKGROUND

A no-contact order existed prohibiting Defendant Dennis Armstrong from contacting his former partner, Nadia Karavan. Nonetheless, on April 20, 2014, they agreed to meet at a bus stop in violation of the No-Contact Order. As the two talked, Armstrong became angry. He yelled and hit the wall of the bus stop shelter. Armstrong then hit Karavan twice in the face with an open fist.

After a brief struggle, Karavan ran to a nearby AM/PM gas station, and Armstrong followed her. According to the store clerk, Todd Hawkins, the two exchanged words. Armstrong followed Karavan around the store for several minutes, and Karavan asked Hawkins to call the police several times. When Hawkins finally called the police, Armstrong left the store.

Officers responded to the 911 call. Officer Martin noticed that Karavan had a slightly swollen, red abrasion on the side of her face.

Armstrong denied spending time inside the AM/PM. In response, the officers told Armstrong that surveillance video from the AM/PM would show what really happened. The officers repeatedly emphasized the video and told Armstrong that he should “tell the truth” because they had the “whole thing on video.”

The State charged Armstrong with a domestic violence felony violation of a court order.

Before trial and again during trial, Armstrong moved to discharge his counsel. One of his reasons was that counsel failed to give him the surveillance video as he requested. The prosecutor told the court that the State had never possessed the video. The court denied Armstrong’s motions.

At trial, Hawkins (the AM/PM employee) testified that there were about 16 cameras around the store: a few of which covered the gas pumps and one that may have shown a slight, low view shot of the bus stop. Although Hawkins testified that police had requested surveillance video from AM/PM in the past, no officer requested footage from the night of this incident. Hawkins had previously reviewed the video from that night and testified that it showed what he described in his testimony, but per AM/PM policy, the video had since been destroyed.

At trial, the officers gave various reasons why they never collected the video. Officer Martin testified that she heard Officer Elliot ask about the video, but she assumed it was the responsibility of someone else at the scene to investigate the video. Officer Rodriguez testified that he never viewed the video. He simply followed Officer Elliot’s lead when the two were questioning Armstrong. Officer Elliot was unavailable to testify at trial. Detective Rande Christiansen, who had been assigned to do the follow-up investigation on the case, testified that he did not investigate any video from the AM/PM because he did not know such video existed.

The jury returned a general guilty verdict despite the lack of surveillance video evidence.

On appeal – and with other arguments, Armstrong claimed that the police violated his right to due process because they failed to collect video surveillance from the AM/PM after using that video as a tool when interviewing Armstrong at the scene.

ANALYSIS & CONCLUSIONS

Ultimately, the Court held that Armstrong failed to show that the police acted in bad faith when they did not collect video surveillance that was only potentially useful evidence.

The Court reasoned that under the Fourteenth Amendment to the federal constitution, criminal prosecutions must conform with prevailing notions of fundamental fairness, and criminal defendants must have a meaningful opportunity to present a complete defense. Consequently, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense.

The court also reasoned that although the State is required to preserve all potentially material and favorable evidence, this rule does not require police to search for exculpatory evidence. And in order to be material exculpatory evidence – that is, evidence which has value to the defense of which can alter or shift a fact-finder’s decision on guilt or innocence – the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Finally, the court reasoned that the police’s failure to preserve “potentially useful evidence” was not a denial of due process unless the suspect can show bad faith by the State. The presence or absence of bad faith turns on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Also, acting in compliance with its established policy regarding the evidence at issue is determinative of the State’s good faith.

“Armstrong asserts that the video surveillance was potentially useful evidence,” said the Court. “Therefore, he must show that the police acted in bad faith.” According to Armstrong, the police acted in bad faith because they told him during the interview that they were going to collect the video but they never actually collected it. Armstrong describes this as the police acting with an “extreme cavalier attitude” toward preserving potentially useful evidence. The Court further reasoned that beyond this failure to collect the video, Armstrong offers no evidence of bad faith, such as improper motive.

“Armstrong has failed to show that the police acted in bad faith when they failed to collect the surveillance video from the AM/PM. The testimony of the officers indicates that the video went uncollected due to mere oversight. Armstrong has presented no evidence that the police had an improper motive. At most, Armstrong has shown that the investigation was incomplete or perhaps negligently conducted, but that is not enough to show bad faith.”

With that, the Court upheld his conviction.

My opinion? I understand the Court’s opinion insofar as the Prosecution should not be burdened with providing exculpatory evidence, especially if that evidence is unimportant – or not material – to the larger issues of guilt.

However, I would object to the AM/PM employee  discussing the  video as facts that are not admitted into evidence. Under this objection when the attorney claims that “the question assumes facts not in evidence,” what he is really saying is that the facts that are being presented to the witness are presumably not yet in evidence and therefore, how can this witness properly answer the question if those facts have not been put before this jury?

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.

Immigration Arrests Up 38 Percent Under Trump

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Detention, Immigration, Search and Seizure, Skagit County Criminal Defense, Trump Administration, Whatcom County Criminal Defense, , ,

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Stephen Dinan of The Washington Times reports that under the Trump administration, arrests of criminal aliens has increased by 38 percent.
Unshackled from the restrictions under the Obama administration, immigration agents and officers are making far more arrests — but are still keeping their chief focus on criminals, authorities said as the released number detailing the first 100 days under President Trump.
Arrests of criminal aliens is up nearly 20 percent, reaching nearly 30,500, while arrests of those without criminal convictions is up 60 percent, reaching about 10,800. Combined, they show a rise of 38 percent in total arrests by U.S. Immigration and Customs Enforcement (ICE), the agency responsible for policing the interior of the country.
Dinan reports that perhaps most striking is surge in at-large arrests made out in the community. Those have risen by 50 percent compared to a year earlier, according to ICE.
While criminals are still the chief targets, ICE said it has reversed the Obama administration’s policy of carving out entire classes of illegal immigrants from any danger of deportation. That’s expanded the potential targets from just a couple million to potentially almost all of the estimated 11 million illegal immigrants now in the U.S.
“These statistics reflect President Trump’s commitment to enforce our immigration laws fairly and across the board,” said Thomas Homan, acting director of ICE.

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.

Life Sentences Increase

Bellingham Defense Attorney, Drug Offenses, Prison, Race & Law, Sentencing, Studies, Trump Administration, Whatcom County Criminal Defense, , ,

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Article by Samantha Michaels of Mother Jones discusses how one out of every nine prisoners in the United States is currently serving a life sentence—a record high—even as the overall prison population has fallen.

That’s according to a depressing new report by the Sentencing Project, an advocacy group that’s been tracking life sentences since 2004. Almost 162,000 people are now serving life behind bars, up from 132,000 about a decade ago and 34,000 in 1984.

To put that in perspective, for every 100,000 people in America, 50 have been locked up for life. That’s roughly the total incarceration rate—including inmates whose sentences are just a few months—in Scandinavian countries like Denmark, Sweden, and Finland.  And it doesn’t even account for the tens of thousands of Americans handed sentences of 50 years or more, which are considered “de facto life sentences,” says Ashley Nellis, a senior research analyst at the Sentencing Project who co-authored the report.

What’s driving the uptick? It’s not a rise in violent crime or murder—both have dropped substantially since the mid-1990s. Nor is it an increase in the number of criminals behind bars: A majority of states saw declining overall prison populations from 2010 to 2015.

According to Michaels, the continuing rise in lifers is a legacy of three-strikes laws and mandatory minimum sentencing.

“It may also be related to the shift away from capital punishment,” she says. She further elaborates that in some states that no longer allow executions, elected officials like governors and prosecutors have championed life-without-parole sentences—which account for the biggest increase in life sentences nationally—as a way to appear tougher on crime.

“Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience,” Connecticut Gov. Dannel Malloy, a Democrat, said in 2012 when his state abolished the death penalty. But these lengthy punishments probably aren’t keeping the public safer. “The impulse to engage in crime, including violent crime, is highly correlated with age,” the Sentencing Project notes. “Most criminal offending declines substantially beginning in the mid-20s and has tapered off substantially by one’s late 30s.”

The biggest losers of all this? Minorities. Of all the lifers and de facto lifers in the country, almost half are African American. What’s more, 12,000 of the total are locked up for crimes they committed as kids, though some are eligible for release thanks to recent court decisions.

In 2010, the Supreme Court ruled that life-without-parole sentences are unconstitutional for juveniles who didn’t commit homicide. In 2012, the justices went further, saying that mandatory life-without-parole sentences for kids, including those who committed homicide, are also unconstitutional. Nineteen states and DC now ban any kind of life-without-parole sentence for juveniles.)

Finally, according to Michaels, it’s important to remember that many of the prisoners serving these long sentences never actually hurt anyone: Two-thirds of lifers or de facto lifers in the federal system committed nonviolent crimes—and one-third of them are serving time for drug crimes.

With Attorney General Jeff Sessions at the helm of the Justice Department alongside his team of tough-on-crime advisers, there’s a good chance that won’t be changing anytime soon.

My opinion? I couldn’t agree more.

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.

Sessions Seeks Harsher Prosecutions & Stricter Sentences

Bellingham Defense Attorney, Confidential Informants, Constitutional Rights, Drug Offenses, Due Process, Federal Crimes & Prosecutions, Sentencing, Skagit County Criminal Defense, Trump Administration, Whatcom County Criminal Defense, , ,

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Today, CNN Reporter Laura Jarrett broke the story that Attorney General Jeff Sessions has a new directive for federal prosecutors across the country: charge suspects with the most serious offense you can prove.

Friday’s announcement follows a line of several other significant departures from Obama-era domestic policies at the Justice Department, but this decision crystalized Sessions’ position in the criminal justice realm.
In a brief one-and-a-half-page memo, Sessions outlined his new instructions for charging decisions in federal cases, saying that his new first principle is “that prosecutors should charge and pursue the most serious, readily provable offense.”
“The most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences,” Sessions later adds.
While the federal sentencing guidelines are advisory — and take into account everything from a defendant’s criminal history to cooperation with authorities — some judges have felt handcuffed by mandatory minimums, which provide a statutory sentencing minimum of months below which the judge cannot depart.
The move was harshly criticized by the New York University School of Law Brennan Center for Justice, a nonpartisan law and policy institute focused on democracy and justice.
“The Trump administration is returning to archaic and deeply-flawed policies,” Inimai Chettiar, the center’s justice program director, said Friday. “Sessions is leaving little to no room for prosecutors to use their judgment and determine what criminal charges best fit the crime.”
“That approach is what led to this mess of mass incarceration,” she added. “It exploded the prison population, didn’t help public safety, and cost taxpayers billions in enforcement and incarceration costs.”
Sessions also formally withdrew a signature part of Attorney General Eric Holder’s “Smart on Crime” initiative, which sought to target the most serious crimes and reduce the number of defendants charged with non-violent drug offenses that would otherwise trigger mandatory minimum sentences.
“We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers,” Holder wrote in a 2013 memo. “In some cases, mandatory minimum and recidivist enhancements statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution.”
As a result, during the Obama era, federal prosecutors were instructed not to charge someone for a drug crime that would trigger a mandatory minimum sentence if certain specific factors were met: (a) the relevant conduct didn’t involve death, violence, a threat of violence or possession of a weapon; (b) the defendant wasn’t an organizer, leader or manager of others within a criminal organization; (c) there were no ties to large-scale drug trafficking operations; and (d) the defendant didn’t have a “significant” criminal history (i.e., prior convictions).
All of those charging factors are now gone under Sessions’ reign and not surprising, as he has previously telegraphed his desire to prosecute more federal cases generally.
My opinion? We’re bringing back the War on Drugs. As it stands, the federal government typically prosecutes only the most serious offenses, and does so with what can seem to be a crushing investigation and avalanche of evidence. Their resources are vast. Mounting a defense can feel daunting.
Here, the effects of Session’s decision will most immediately be felt in the context of drug crimes. Federal mandatory minimums can be harsh because the sentences are dictated based on drug type and quantity.
Said differently, Sessions decision could bring back the War on Drugs. His actions are already embracing it’s worst features: confidential informants, harsh plea bargains and long sentences.

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.

Proposed Law Evicts Suspected Meth Users From Hotels

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Legislation, Methamphetamine, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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Interesting article by Marilyn Napier of the Skagit Valley Herald reported that a new state law proposed by the Skagit County Prosecuting Attorney will allow local governments to evict residents from certain buildings contaminated by methamphetamine, even without evidence of manufacturing. The new law takes effect on July 23, 2017.

State House Bill 1757 was created by the problems that arose at Burlington’s Sterling Motor Inn. Apparently, the hotel was found to have widespread high levels of methamphetamine contamination. As a result, the City of Burlington wanted residents of the motel to evacuate because the level of contamination was considered unsafe. Although the residents, some of whom had lived at the motel for years, left voluntarily, the city and Skagit County did not have the legal authority to evict them.

Because of the Clandestine Drug Lab law, the Skagit County Public Health Department was unable to evict the residents because the law required that there be evidence of drug manufacturing.

THE PROPONENTS.

Skagit County Prosecuting Attorney Rich Weyrich and the Washington Association of Prosecuting Attorneys wrote the bill, which was sponsored by Rep. Dave Hayes, R-Camano Island, and was passed by both the state House and state Senate in mid-April.

“This takes away the idea that you have to have evidence of manufacturing meth. Now you just have to show that there is meth residue present,” Weyrich said. Gov. Jay Inslee signed the bill April 25.

Burlington Mayor Steve Sexton said he doesn’t think the Sterling Motor Inn incident is going to be the last time the city deals with a contaminated property.

“I think that (the law) is what it takes for Skagit County to do the job they should do in situations like that,” he said. “This is what the county said they needed.”

A BLIGHT IN THE COMMUNITY.

Apparently, the state health department reported that about 60 percent of the rooms did not have fire safety measures, such as working smoke detectors. Violations also included rodent infestation in the laundry room, storage shed and the electrical panel room.

Beyond the failed health inspection, the motel had been the center of about 200 calls to police in 2015, a number that had continued to increase since 2009. According to police, officers had been called for weapon offenses, domestic violence, drug deals, prostitution, burglary and assault. Harrison added the law is good news for the public.

My opinion? This law is questionably unconstitutional. Although governments can pass laws for public safety reasons, they cannot make laws which violate people’s constitutional rights. Here, an “automatic eviction” lacking due process – or based on evidence which was obtained through unlawful search and seizure – might end up patently violating people’s individual rights. We’ll see what happens.

For more information on Search and Seizure, please refer to my Legal Guide titled, Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.

And 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.

“Incentivized” Informants

Bellingham Defense Attorney, Confidential Informants, Constitutional Rights, Jury Trial, Legislation, Whatcom County Criminal Defense, , ,

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Very interesting op-ed piece from Barry Scheck of the Innocence Project discusses how Senate Bill 5038 rightfully confronts and addresses the issue of false testimony by “incentivized” confidential informants in criminal cases.

State Senate Bill 5038 adds to key advances that Washington has already made over the years to improve the administration of justice. “Incentivized” informants are people who are often used by the government in criminal prosecutions to provide information or evidence against defendants in exchange for an explicit promise or expectation of a personal benefit.

“Benefits include anything from reduced or eliminated jail time to improved living conditions behind bars to monetary rewards,” says Scheck. “Recognizing both the value of this testimony to the state and the risk that a witness will be tempted to give false testimony in order to benefit personally, this bill outlines specific information that must be learned and turned over to the defense in the discovery process before trial.” This, says Scheck, will ensure that all parties have an opportunity to properly scrutinize the informant.

“The reality is, some informants lie,” said Scheck. “When they do, they undermine the integrity and the truth-seeking function of our justice system.” In support of his argument, Scheck cited these facts:

• False testimony by incentivized witnesses is a leading cause of wrongful conviction in capital cases nationally, a contributing factor in nearly half of such exonerations.

• Of 349 DNA-based exonerations, 17 percent involved an incentivized witness.

• In Tulia, Texas, 46 innocent people were convicted of drug charges based on the testimony of a single, lying informant.

• Ten Washington state wrongful conviction cases listed on the National Registry of Exonerations involved the use of incentivized testimony.

Scheck believes these numbers demonstrate that this is a national problem, requiring all states to look closely at the safeguards needed to regulate this system. SB 5038 addresses an information gap in the system that will improve accuracy and protect constitutional rights. Prosecutors have a responsibility to know and disclose this information.

In this year alone, in addition to Washington, four states are considering proposals to strengthen or establish new frameworks for assessing informant testimony. Notably, while some proposals go further than others, all of these proposed reforms impose new disclosure requirements around incentivized informants.”

My opinion? For far too long, the world of incentivized informants has been an evidentiary black hole. The testimony of jailhouse snitches, confidential informants and co-defendants should immediately be treated as suspect. Every year that passes without these reforms puts more innocent people at risk and strikes at the heart of the credibility of our justice system. A healthy justice system demands that we ensure that the strongest protections are in place for the innocent.

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.

Students, Not Suspects

ACLU, Bellingham Defense Attorney, law enforcement, police, Search and Seizure, Studies, Whatcom County Criminal Defense, , ,

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Interesting article by Claudia Rowe of the Seattle Times describes a report from the American Civil Liberties Union (ACLU) saying says that police officers patrolling school hallways brings significant costs to the learning environment and finances of our schools.

“We were surprised by the degree to which officers have almost unfettered ability to enforce in school discipline,” said Vanessa Hernandez, youth policy director at the ACLU who wrote the “Students Not Suspects” report. “That’s a pretty dangerous road to go down, to have student discipline in an educational environment handed to a law enforcement agent, and it really sends a troubling message to students about how we perceive them.” The advocacy organization examined data from the 2013-14 through 2015-16 school years in more than 100 districts.

National data show a strong correlation between placing officers in schools and increased youth referrals to the criminal justice system. And in Washington, state law makes it a misdemeanor to cause a disturbance within school walls. “Any student misbehavior — from talking back to a teacher, to making an off-color joke, to throwing spitballs — could be treated like a crime,” Hernandez said.

Thirty years ago, few schools used police to respond to misbehavior. But in recent decades the number of officers patrolling the halls has ballooned — from fewer than 100 nationally in the late 1980s, to an estimated 17,000 today. Yet no state agency systematically tracks police in schools, or the impact on students. Most commonly, officers are contract employees who report to their police departments, not district administrators.

In Washington, Hernandez added, at least 3,400 kids were either arrested on campus or referred to law enforcement for prosecution during in the 2013-14 school year, which is the most recent data available.

In a time when state lawmakers are wrestling with a multibillion dollar hole in funding for education, schools are spending millions on police officers, the report found.

Seventeen districts pay the entire cost of their school police, covering salaries, benefits and even, in two cases, leasing patrol cars. On average, schools contribute about $62,000 annually for each full-time officer, and up to $125,000 at the high end.

 That adds up fast in districts that use officers in multiple schools. Spokane, for example, paid more than $1 million for school officers during the 2014-15 school year, the report says. And Kent — which is facing an $18 million budget hole — spent almost $500,000 in 2015-16. (Seattle’s school police officers are covered by the city, not the school district budget.)

Other approaches, like restorative justice and trauma-informed teaching, have been shown to reduce disciplinary incidents by addressing the underlying causes of misbehavior, and the ACLU suggests that money for police might be better spent on school psychologists, social workers or teaching assistants.

Yet momentum has moved in the opposite direction. Nationally, 24 percent of elementary schools and 42 percent of middle- and high schools routinely hire police officers, according to the report.

But not all schools have police officers. In high-poverty schools — whether urban or rural — police are a much more routine presence. In small-town Walla Walla, for example, the alternative school where 80 percent of kids are low-income, has an officer. But the regular comprehensive high school, where only 45 percent of students are low-income, does not. Even the tiny Liberty district, with about 450 students, has a police officer on staff, the ACLU found.

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.

Elder Abuse Bill Goes to Vote

Bellingham Defense Attorney, Criminal Mistreatment, Elder Abuse, Legislation, Theft, Whatcom County Criminal Defense, , ,

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Washington State may pass new legislation protecting elderly, vulnerable adults against financial exploitation and neglect.

House Bill 1153 unanimously passed in the Senate earlier this month and was approved in the House in February. A date has not yet been set for the bill to be signed by Gov. Jay Inslee, though it will happen within the next few weeks.

The legislation, requested by the attorney general, would (1) lower the requisite mental state for the crimes of Criminal Mistreatment in the first and second degree from recklessness to criminal negligence, and (2) creates the crimes of Theft from a Vulnerable Adult in the first degree and second degree. A “vulnerable adult” is defined as any person 18 years or older who is clearly mentally or physically unable to care for himself or herself or suffers from a cognitive impairment.

Currently, for a standard theft offense, a person could serve zero to 90 days in a county jail if they have no prior criminal history. The new statute, however, would rank the crime at a higher seriousness level of theft by forcing an offender who has no priors to serve up to 12 to 14 months in prison. Additionally, if defendants were convicted of several crimes in the past, prosecutors say they could face up to 8 ½ years in prison compared to the existing maximum penalty, which is closer to five years.

Some people opposed this part of the bill during public hearings held earlier this year saying it goes from zero to prison too quickly, but the bill’s sponsor, Democratic Rep. Roger Goodman of Kirkland, says financial abuse of elderly and vulnerable adults is reaching epidemic proportions and the penalties are not strong enough to deter anyone.

“We need to send a strong message that abusing the elderly, financially or physically, is serious enough that you’re going to have a felony on your record and you’re going to go to prison and be supervised afterward,” Goodman said.

Last year, the state’s adult protective services received more than 35,000 complaints. Of those, nearly 8,700 were related to financial abuse of an elderly or vulnerable adult and more than 5,600 were complaints of neglect.

Also under the statute, the standard of proof for criminal mistreatment cases would change from “recklessness” to “criminal negligence,” something prosecutors say was needed to make it easier to prove cases.

“This is a major change that will allow us to hold more people accountable who cause vulnerable people serious injury or death,” said Page Ulrey, a King County senior deputy prosecuting attorney, who has prosecuted elder abuse cases since 2001.

Ulrey said the new statute seems like a more appropriate penalty for the degree of harm that is often done in these cases, which she says is committed most often by someone the person trusts or loves such as a family member or close friend.

Mike Webb, the legislative affairs director at the attorney general’s office, said he’s seen jurors fail to find recklessness beyond a reasonable doubt in cases when an offender didn’t remove a catheter leading to death or somebody didn’t turn a vulnerable person over for so long it led to bed sores to the bone.

“The existing law made it very challenging to bring about a felony criminal mistreatment charge because jurors struggled to find reckless behavior,” he said. “Most saw it as a failure to act rather than recklessness.”

Ulrey pointed out another significant change the bill would do is extend the statute of limitations as financial exploitation of vulnerable adults can take years to be uncovered. She said it gives law enforcement, prosecutors and other adult protection services six years instead of three to investigate and gather information surrounding the case.

Thirty-seven states have criminal penalties for financial exploitation of the elderly and vulnerable adults, according to the National Conference of State Legislatures. Thirty-four states currently have pending legislation.

My opinion? Elder abuse is awful. Still, lowering the standard of proof for criminal mistreatment cases from “recklessness” to “criminal negligence” may inadvertently create problems for jurors trying these cases. There are many components to “Negligence.” For example, was there actual negligence? Was there a duty of care? Was there a breach of duty? If so, was the breach foreseeable under the circumstances? Were there damages? Not every case is cut and dried.

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.

No-Contact Order Held Invalid

Alford Plea, Bellingham Defense Attorney, felony, No Contact Order, Sentencing, Skagit County Criminal Defense, Tampering With a Witness, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Torres, the WA Court of Appeals decided a lower court improperly imposed a 5-year no contact order between the defendant and his son in a Witness Tampering prosecution.

BACKGROUND FACTS

Mario Torres is the father of M.T. (born 2003) and N.B. (born 2012). N.B. lived with his mother. However, on the morning of December 22, 2014, he was left in Mr. Torres’s care while N.B.’s mother went shopping. M.T. was also with Mr. Torres at the time. On December 23, N.B.’s mother and grandmother took him to receive medical care after he was found unresponsive. N.B. died a few days later. N.B.’s injuries suggested his death was a homicide.

Police Interview With M.T.

Part of law enforcement’s investigation into N.B. ‘s death involved a forensic interview of M.T. He originally told the interviewer that N.B. was responsive while in Mr. Torres’s care and ate some “Chicken McNuggets” during this time. But M.T. later told the interviewer this was not true. M.T. then said that he heard a loud bang while Mr. Torres was caring for N.B. and N.B. started loudly crying. Mr. Torres later told M.T. he had accidentally stepped on N.B. ‘s leg causing him to fall and strike the bedpost. M.T. never saw N.B. get up again after this. M.T. told the interviewer that both his parents approached him at his grandmother’s home earlier that day and told him to make up a story about N.B. eating Chicken McNuggets, and not mention that N.B. had bumped his head. Additionally, Mr. Torres allegedly told M.T. to “make up lies” about what happened.

Police interview with Mr. Torres.

The police talked to Mr. Torres the day after M.T’s interview. After being advised of his Miranda rights, Mr. Torres denied injuring N.B. but admitted N.B. fell and struck his head on a bedpost. Mr. Torres also admitted he did not want M.T. to talk to the police and had a private conversation with him to outline what M.T. would say. Mr. Torres claimed he told M.T. to tell the truth and say Mr. Torres did not cause the injuries to N.B. He did not offer any specific details on what M.T. was told.

Criminal Charges, Guilty Verdicts, Sentencing & the 5-Year No Contact Order.

The State charged Mr. Torres with one count of Witness Tampering under RCW 9A.72.120(l)(c). Although the case progressed toward trial, Mr. Torres ultimately pled guilty and entered an Alford plea on February 25. His case then proceeded directly to sentencing. During the sentencing colloquy, the court ultimately imposed a five-year no-contact order, prohibiting Mr. Torres from all contact with M.T. except by written mail. Mr. Torres also received a sentence of six months and $1,960 in court fines. Torres appealed.

For those who don’t know, a no contact order is also called a restraining order, and prohibits a person from being in physical or verbal contact with another person. The court must order the no contact agreement, and usually specifies how many feet, or yards, away the individuals must stay from one another. If broken the defendant may receive a fine, or jail time with a felony or misdemeanor charge.

COURT OF APPEALS’ DECISION AND REASONING.

The Court began with stating RCW 9.94A.505(9) authorizes a trial court to impose crime related prohibitions as sentencing conditions. A No-Contact Order is such a prohibition. The court further reasoned that conditions interfering with fundamental rights, such as the right to a parent-child relationship, must be “sensitively imposed” so they are “reasonably necessary to accomplish the essential needs of the State and public order.” A trial abuses its discretion if the trial court employs the wrong legal standard.

The Court further reasoned that here, at sentencing, the trial court imposed a five-year no-contact order, prohibiting almost all contact between Mr. Torres and his son. The Court reasoned that in so doing, the court failed to acknowledge Mr. Torres’s fundamental right to parent his child or explain why a five year prohibition on all personal contact was reasonably necessary to further the State’s interests. “This was error, even under the deferential abuse of discretion standard,” said the Court of Appeals. “While the trial court certainly can impose a no-contact order to advance the State’s fundamental interests in protecting children, it must do so in a nuanced manner that is sensitive to the changing needs and interests of the parent and child.”

“The State suggests we can infer the reasons for the court’s no-contact order from the record. We disagree. The record before us is scant. The trial judge did not explain why he decided to impose a no-contact order that was 10 times longer than what was requested by the State. We are unable to discern the court’s likely reasoning from the limited information presented. It is the trial court’s duty to balance the competing interests impacted by a no contact order.”

With that, the WA Court of Appeals remanded the case back to the trial court for further reconsideration – and instructions – on re-creating the no contact order.

“How to Create a No Contact Order.”

This portion of the Court opinion was very instructive to the lower court. For example, it was instructed that the trial court shall first address whether a no-contact order remains reasonably necessary in light of the State’s interests in protecting M.T. from harm. If it is, then the court shall endeavor to narrowly tailor the order, both in terms of scope and duration. When it comes to the order’s scope, the court shall consider less restrictive alternatives, such as supervised visitation, prior to restricting all personal contact between Mr. Torres and his child. In addition, the court’s order should recognize that “what is reasonably necessary to protect the State’s interests may change over time.” Accordingly, the court shall consider whether the scope of the no-contact order should change over time. The court shall also reconsider whether the ultimate length of the no-contact order remains appropriate. Finally, the trial court should keep in mind that a sentencing proceeding is not the ideal forum for addressing parenting issues.

My opinion? This was a great decision. I’m impressed that the Court of Appeals gave specific instructions on creating no contact orders in the future.

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.

Inmates Paid $1 Per Day

Bellingham Defense Attorney, Constitutional Rights, Detention, Immigration, Jail, Race & Law, Skagit County Criminal Defense, Thirteenth Amendment, Trump Administration, Whatcom County Criminal Defense, , ,

Image result for private jail

Article from Andy Hurst of KUOW discusses a class action lawsuit says the company running an immigration detention center in Colorado is violating federal anti-slavery laws.

Interestingly, this same company runs the Northwest Detention Center in Tacoma, which is the scene of an expanding hunger strike.

Inmates joining the law suit are paid $1 per day for voluntary work. They want improved quality of food, improved medical care and higher paying jobs. The detention center is run by a private company, GEO Group, which operates under a contract with U.S. Immigration and Customs Enforcement. The group Latino Advocacy said more than 750 people at the Tacoma facility were refusing meals as of Wednesday morning.

Meanwhile, detainees at an Aurora, Colorado, detention center run by GEO Group have filed a class-action lawsuit. It claims the detention center violates federal anti-slavery laws.

Attorney Nina Disalvo is an attorney represents the detainees in Colorado. She said it’s illegal to pay them $1 a day.

“It’s not the market wage that GEO would have to pay if it were absorbing the real cost of running an immigrant detention center,” Disalvo said. “If GEO actually had to hire janitorial staff to clean its facility, it would have to pay that staff a market wage. And it’s not paying the detainees a market wage for this work.”

Disalvo said some of her clients were forced to do janitorial work and clean large areas within the facility without pay. “If they did not do so, they were threatened with or placed in solitary confinement,” Disalvo said. “Our clients allege that forcing people to work under threat of solitary confinement constitutes forced labor under the federal forced labor laws.”

GEO Group has denied the lawsuit’s allegations. A spokesperson for Immigration and Customs enforcement says the agency does not comment on pending litigation. Virginia Kice, ICE spokeswoman, confirmed that detainees at the Northwest Detention Center in Tacoma earn $1 per day for voluntary work. She said about 25 percent of detainees participate in the program, and that no detainees perform unpaid work at the facility.

The Colorado lawsuit could have implications for the Northwest Detention Center. Northwestern University political science professor Jacqueline Stevens said that if the plaintiffs prevail, GEO Group will need to pay out up to hundreds of millions of dollars in back wages and penalties.

“This could mean the end of government contracts with the private prison industry for housing people held under immigration laws, and the return to more sensible policies,” Stevens said.

My opinion?

I’m no fan of private prisons.

For those who don’t know, a private prison or for-profit prison is a place in which individuals are physically confined or incarcerated by a third party that is contracted by a government agency. Private prison companies typically enter into contractual agreements with governments that commit prisoners and then pay a per diem or monthly rate, either for each prisoner in the facility, or for each place available, whether occupied or not. Such contracts may be for the operation only of a facility, or for design, construction and operation.

According to the ACLU, private prisons have been linked to numerous cases of violence and atrocious conditions. Also, according to the Bureau of Justice Statistics, for-profit companies were responsible for approximately 7 percent of state prisoners and 18 percent of federal prisoners in 2015 (the most recent numbers currently available).

While supporters of private prisons tout the idea that governments can save money through privatization, the evidence is mixed at best—in fact, private prisons may in some instances cost more than governmental ones.

Finally, it appears that immigrants are the ones filling these detention centers. U.S. Immigration and Customs Enforcement reported that in 2016, private prisons held nearly three-quarters of federal immigration detainees. In light of today’s anti-immigrant presidential administration, it’s no coincidence that private stocks for U.S. prisons have increased 100% since Trump’s election.

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.