Tag Archives: Mt. Vernon Criminal Defense Attorney

State Legislature Passes Significant Public Defense Bill

Bellingham Defense Attorney, Legislation, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Public Defenders Urge Legislature to Stop Governor from Cutting Successful Resentencing Program | San Francisco Public Defender's Office

Excellent article in the Seattle Times from journalist Daniel Beekman discussed the passage of Senate Bill 5780. The legislation is a huge win for WA state’s beleaguered criminal legal system. It won early support in the Senate but stalled before last Friday’s deadline to pass the House. Fortunately, it prevailed at the last minute only after a Seattle Times story spotlighted the public defense crisis. It is now headed to Gov. Jay Inslee’s desk to be signed into law.

WHAT IS THE CRISIS AND WHY DOES IT EXIST?

When you’re accused of a crime and don’t have enough money to pay an attorney, the government is supposed to provide you with one. It’s a constitutional right. But many Washington communities are struggling to hire and retain public defenders and to keep up with cases (statewide rules cap the number of cases a defender can handle each year). So some defendants are going without proper representation, even while in jail, and some prosecutions are getting delayed or dismissed. In some places, prosecutors are in short supply, as well.

The crisis exists because the COVID pandemic created backlogs, fewer people are going to law school, young attorneys are choosing other jobs, attorneys certified for high-level felony cases are burning out and policing changes are making cases more time-consuming, among other reasons.

Rural areas and Eastern Washington communities such as Yakima and the Tri-Cities have been hit especially hard, partly because they lack amenities and resources to compete with private sector employers for qualified attorneys. Unlike most other states, Washington relies on its counties to fund their own public defense services, and those costs have grown in recent years.

WHAT DOES SB 5780 HOPE TO ACCOMPLISH?

SB 5780 is meant to combat rampant staffing and caseload challenges that are pushing Washington’s public defense apparatus to the brink of collapse and simultaneously threatening prosecutorial operations. The legislation helps recruit and train more attorneys for crucial jobs in public defense and prosecution.

The bill directs state agencies to set up internship programs for aspiring public defenders and prosecutors in rural and underserved areas. It also directs the agencies to provide training to early-career public defenders and prosecutors. More specifically, SB 5780 calls for the state’s Office of Public Defense to administer a “law student rural defense program.” The program places students and recent graduates as interns with experienced public defenders in underserved communities. Similarly, it calls for the state Criminal Justice Training Commission to oversee a “law student rural prosecution program” placing interns with prosecutors. The interns are supposed to get mentoring, pay and housing stipends, and supervising attorneys may receive some money for their time.

The bill also expands the Criminal Defense Training Academy and the Criminal Justice Training Commission. These organizations train early-career public defenders and prosecutors.

My opinion? The legislation is a step in the right direction. Studies show public defenders face extremely heavy workloads that prevent them from providing effective legal representation to people accused of crimes.

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.

Bellingham Police Seek Rapid DNA Technology

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

Snapshot: S&T's Rapid DNA Technology Identified Victims of California Wildfire | Homeland Security

The Bellingham Herald reports that the Bellingham Police Department is applying for a federal grant to buy a rapid DNA machine. The hope is that it will help solve crimes without the current delays of up to a year at the state lab.

A rapid DNA machine can produce results in 90 minutes to two hours, Bellingham Police Chief Rebecca Mertzig told the Bellingham City Council at a meeting Monday night. Mertzig said the machine could be useful in two ways:

▪ In a criminal investigation, the results of DNA evidence from a suspect or person of interest at a crime scene could be entered into a national database to check quickly for a match to a convicted criminal.

▪ For victims, it could provide faster identification of unrecognizable human remains.

“We would use this to generate investigative leads. It does not replace traditional DNA processing, so if we were to get a match during this rapid DNA system, we would still send a sample to the lab for comparison testing using the traditional way,” Mertzig said. “Arrests are not made solely on rapid DNA identification. We’d have to have other evidence, and the standard is still probable cause in order to make an arrest.”

WHAT IS A RAPID DNA MACHINE?

Rapid DNA, or Rapid DNA analysis, is a fully automated process of developing a DNA profile from a mouth swab. This happens in 1-2 hours—without the need for a DNA laboratory or any human intervention and review.

The technology enrolls a qualified arrestee’s DNA profile in CODIS/NDIS during the booking process. NDIS is the national level of the CODIS system. The arrestee is searched against all unsolved crimes within 24 hours.

In addition to searching CODIS, arrestees are searched against the DNA Area of Special Concern (DISC). The DISC contains complete crime scene profiles from unsolved homicides, sexual assaults, kidnappings, and terrorism incidents. DISC profiles can be searched in near real time during the booking process.

A match to a DISC profile will result in an immediate notification to the booking agency, arresting agency, and investigating agency. This technology allows law enforcement to receive investigative leads while an arrestee is still in custody, possibly preventing additional violent crimes.

THE ACLU’S ARGUMENT AGAINST RAPID DNA MACHINES

According to the ACLU, the design and use of these machines are largely unregulated. That should be cause for concern for several reasons. First, Rapid DNA machines are likely to increase the risk of misidentification and wrongful conviction. Second, “cheap and easy to use” machines are a perfect recipe for overuse, particularly when it comes to sensitive technologies in the hands of the government.

Third, Rapid DNA machines are likely to encourage the growth of government DNA databases, putting some of our most sensitive information in government hands. Fourth, the easy availability of DNA testing through these machines is likely to exacerbate existing problems with the criminal justice system. These problems include racial disparities in DNA collection that exist because our criminal justice system disproportionately suspects, arrests, and convicts people of color.

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

Citing “Aloha Spirit,” Hawaii Bans Open Carry of Firearms Without a Permit

Bellingham Defense Attorney, Firearm, Mount Vernon Criminal Defense Attorney, Open Carry, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Guns.com Hawaiian Shirt - For Sale :: Guns.com

According to The Guardian, the Hawaii’i Supreme Court, citing the state’s “Spirit of Aloha”, has ruled that a person can be prosecuted for carrying a gun in public without a permit. This decision comes in an apparent rebuke to the US Supreme Court’s efforts to expand gun rights.

In State of Hawaii v Christopher Wilson, state supreme court of Hawaii reviewed a 2017 case against Christopher Wilson, who had an unregistered, loaded pistol in his front waistband when police were called after a Maui landowner reported seeing a group of men on his property at night. The court denied the man’s request to dismiss weapons possession charges on grounds that they violated a right to bear arms enshrined in the US constitution in 1791.

“The spirit of aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities . . . The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others.” ~Justice Todd Eddins, Hawaii Supreme Court

WHAT IS THE “SPIRIT OF ALOHA?”

Under 1986’s Hawaiian Spirit Law, the state mandates that state officials and judges treat the public with “aloha spirit.” In short, this ethos is described as the coordination of the heart and mind to foster connectivity and peace that calls for contemplation and presence of five life-force traits: “akahai” (kindness, expressed with tenderness); “lōkahi” (unity, expressed with harmony); “oluʻolu” (agreeableness, expressed with pleasantness); “haʻahaʻa” (humility, expressed with modesty); and “ahonui’” (patience, expressed with perseverance).

The Wilson case has been winding its way through the court system, with the plaintiff claiming that he had legally purchased the weapon in Florida in 2013. But Wilson had not registered the gun in Hawaii, which has some of the nation’s strictest gun laws, and had not obtained or applied for a permit. The case made its way to the state’s supreme court after the US supreme court further relaxed restrictions on gun ownership via the New York State Rifle & Pistol Association v Bruen case in 2022.

The ruling does not throw out the concept of the right to bear firearms.  Rather it establishes that states may retain the authority to require people to obtain a permit for their firearm before they may carry it in public.

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

Deadly Vehicular Crash Data in Whatcom County

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Vehicular Assault, Vehicular Homicide, Whatcom County Criminal Defense, , , , ,

Motorcyclist dies after collision with car in Bellingham - YouTube

Bellingham Herald Journalist Robert Mittendorf reports that deadly car crashes fell by half in Bellingham last year. These levels return to pre-pandemic levels after a two-year spike. Four people died in crashes within Bellingham city limits last year, down from eight traffic deaths in 2022 and nine in 2021, according to data from the Washington State Department of Transportation, which collects reports from police agencies statewide.

Overall there were more than 200 fewer crashes last year in Bellingham, as the total dropped from 1,136 in 2022 to 902 in 2023 — a 10-year low. WSDOT’s data system includes crashes on Interstate 5 and state highways such as Meridian Street (State Route 539) within the city limits. Factoring in only city streets, Bellingham had 527 total crashes. This is down from 709 in 2022 — also a 10-year low.

One pedestrian and no bicyclists were killed by cars in 2023. There were 23 such crashes last year as part of a steady annual decline after a high of 76 total bike and pedestrian crashes in 2017.

Bellingham’s lower fatality rate is in contrast to state and nationwide trends. Apparently,  more people in WA State died in traffic accidents as people drove faster and automakers built bigger and heavier trucks and SUVs. The death toll on roads statewide in 2023 topped a 30-year high set last year, according to WSDOT. Whatcom County crash statistics remained mostly flat, reflecting a three-year trend.

Former Mayor Seth Fleetwood made traffic safety a priority from 2020 to 2024, and Public Works has hired three new staff members in its Traffic Division, Johnston said. Bellingham will be examining the speed of cars and speed limits on city streets this year. This effort includes data collection, public education and law enforcement. On the enforcement side, one possible new measure could be speed cameras in school zones.

Even as deadly crashes in just the city of Bellingham declined last year, traffic fatalities rose slightly in Whatcom County as a whole, according to WSDOT. At total of 18 people died last year in crashes on roads of all types across Whatcom County, from city streets to Interstate 5. Two pedestrians were killed among 48 total crashes involving people walking and cycling in 2023. This represents a sharp decline from the eight pedestrian deaths in 65 total crashes in 2022 — also a 10-year low.

Traffic fatalities are tragic. Please contact my office if you, a friend or family member are charged with Vehicular Assault/Homicide, or Reckless Driving. Hiring an effective and competent defense attorney is the first and best step toward justice.

Recording An Inmate’s Conversations with Defense Counsel is Unconstitutional

Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Privacy, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Eavesdropping – (California Penal Code Section 632)

In State v. Couch, the WA Court of Appeals held a jailed defendant’s constitutional rights were violated when jail officials recorded multiple jail calls made between the defendant and counsel, video-recorded several meetings between the defendant and counsel, and opened at least one piece of legal mail.

BACKGROUND FACTS

The State charged Mr. Couch with second degree rape-domestic violence and second degree assault-domestic violence after he allegedly forced his former girlfriend to have sex with him after she broke off their relationship.

Before the trial began, Couch filed a motion to dismiss for governmental misconduct under CrR 8.3(b). Couch claimed that the Grays Harbor County Jail had illegally recorded conversations between him and defense counsel and had opened his legal mail. The trial court held a hearing on the motion and heard testimony.

The trial court denied Couch’s motion to dismiss. Later, the jury convicted Couch of second degree rape and second degree assault. Couch appealed on arguments that state actors unlawfully intruded on his communications with his attorneys and that the trial court erred because it did not require the State to establish the absence of prejudice beyond a reasonable doubt.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying the Sixth Amendment guarantees a criminal defendant the right to the assistance of counsel, and that right includes the right to confer privately with their attorney. A state actor’s intrusion into private conversations between attorney and defendant violates this right. There is no distinction between an intrusion by jail security and an intrusion by law enforcement.

Furthermore, if a state actor has violated the defendant’s Sixth Amendment right, prejudice to the defendant is presumed. Because the constitutional right to privately communicate with an attorney is a foundational right, the State must be held to the highest burden of proof to ensure that it is protected.

Intruding on confidential attorney-client communications constitutes misconduct under CrR 8.3(b). This court rule states that the trial court may dismiss a criminal prosecution due to governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.

The Court of appeals reasoned that state actors intruded on Couch’s communications with his attorneys in violation of his Sixth Amendment right to confer privately with those attorneys. Here, the Grays Harbor County Jail (1) recorded multiple telephone calls between Couch and Rivas, (2) video recorded several meetings between Couch and his attorneys, and (3) opened at least one piece of legal mail.

“Therefore, the trial court was required to presume prejudice to Couch,” said the Court of Appeals. From there, the only question for the trial court – the truly correct legal issue – was whether the State proved beyond a reasonable doubt that Couch was not prejudiced when addressing Couch’s motion to dismiss. Therefore, the trial court erred in analyzing Couch’s CrR 8.3(b) motion to dismiss.

With that, the Court of Appeals reversed Couch’s conviction and remanded for the trial court to determine whether to dismiss the case or order a new trial with sufficient remedial safeguards.

Jail is a terrible place. Not only are the conditions deplorable, but privileged conversations with attorneys run the risk of being recorded. Please review Making Bail and 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.

DNA + Facial Recognition Technology = Junk Science

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , , ,

Psychological Assessment in Legal Contexts: Are Courts Keeping “Junk Science” Out of the Courtroom? – Association for Psychological Science – APS

Intriguing article in Wired featured a story where police used DNA to predict a suspect’s face and then tried running facial recognition technology on the photo.

BACKGROUND FACTS

In 2017, detectives working a cold case at the East Bay Regional Park District Police Department got an idea, one that might help them finally get a lead on the murder of Maria Jane Weidhofer. Officers had found Weidhofer, dead and sexually assaulted, at Berkeley, California’s Tilden Regional Park in 1990. Nearly 30 years later, the department sent genetic information collected at the crime scene to Parabon NanoLabs—a company that says it can turn DNA into a face.

Soon, Parabon NanoLabs provided the police department with the face of a potential suspect, generated using only crime scene evidence.

The image Parabon NanoLabs produced, called a Snapshot Phenotype Report, wasn’t a photograph. It was a 3D representation of how the company’s algorithm predicted a person could look given genetic attributes found in the DNA sample.

The face of the murderer, the company predicted, was male. He had fair skin, brown eyes and hair, no freckles, and bushy eyebrows. A forensic artist employed by the company photoshopped a nondescript, close-cropped haircut onto the man and gave him a mustache—an artistic addition informed by a witness description and not the DNA sample.

In 2017, the department published the predicted face in an attempt to solicit tips from the public. Then, in 2020, one of the detectives  asked to have the rendering run through facial recognition software. It appears to be the first known instance of a police department attempting to use facial recognition on a face algorithmically generated from crime-scene DNA.

At this point it is unknown whether the Northern California Regional Intelligence Center honored the East Bay detective’s request.

DOES THIS SEARCH VIOLATE CONSTITUTIONAL RIGHTS?

Some argue this search emphasizes the ways that law enforcement is able to mix and match technologies in unintended ways. In short, this search uses untested algorithms to single out suspects based on unknowable criteria.

“It’s really just junk science to consider something like this,” Jennifer Lynch, general counsel at civil liberties nonprofit the Electronic Frontier Foundation, tells WIRED. Running facial recognition with unreliable inputs, like an algorithmically generated face, is more likely to misidentify a suspect than provide law enforcement with a useful lead, she argues.

“There’s no real evidence that Parabon can accurately produce a face in the first place . . . It’s very dangerous, because it puts people at risk of being a suspect for a crime they didn’t commit.” ~Jennifer Lynch, General Counsel at Electronic Frontier Foundation.

According to a report released in September by the US Government Accountability Office, only 5 percent of the 196 FBI agents who have access to facial recognition technology from outside vendors have completed any training on how to properly use the tools. The report notes that the agency also lacks any internal policies for facial recognition to safeguard against privacy and civil liberties abuses.

In the past few years, facial recognition has improved considerably. In 2018, when the National Institute of Standards and Technology tested face recognition algorithms on a mug shot database of 12 million people, it found that 99.9 percent of searches identified the correct person. However, the NIST also found disparities in how the algorithms it tested performed across demographic groups.

A 2019 report from Georgetown’s Center on Privacy and Technology was written by Clare Garvie, a facial recognition expert and privacy lawyer. She found that law enforcement agencies nationwide have used facial recognition tools indiscriminately. They’ve tried using images that include blurry surveillance camera shots, manipulated photos of suspects, and even composite sketches created by traditional artists.

“Because modern facial recognition algorithms are trained neural networks, we just don’t know exactly what criteria the systems use to identify a face . . . Daisy chaining unreliable or imprecise black-box tools together is simply going to produce unreliable results. We should know this by now.” ~ Clare Garvie, Esq.

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.

Should We Ban Hog-Tying By Police?

Bellingham Defense Attorney, Legislation, Mount Vernon Criminal Defense Attorney, Police Misconduct, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Report: Most of America's largest police departments allow officers to choke, strangle, and hog-tie people | The Week

King5 News reports that Democratic Sen. Yasmin Trudeau has sponsored a bill banning hog-tying by police. The restraint technique has long drawn concern due to the risk of suffocation, and while many cities and counties have banned the restraint technique, it remains in use in others.

The legislation comes nearly four years after Manuel Ellis, a 33-year-old Black man, died facedown with his hands and feet cuffed together behind him. The case that became a touchstone for racial justice demonstrators in the Pacific Northwest.

Senator Trudeau said she doesn’t want anyone else to experience the “dehumanization” Ellis faced before his death.

“How do we move through the need for folks to enforce the laws, but do it in a way where they’re treating people the way we expect, which is as human beings?” ~Senator Yasmin Trudeau

In the last four years, states across the U.S. have rushed to pass sweeping policing reforms.  The legislation was prompted by racial injustice protests and the death of George Floyd and others at the hands of law enforcement. Few have banned prone restraint, according to the National Conference of State Legislatures.

The attorney general’s office in Washington recommended against using hog-tying in its model use-of-force policy released in 2022. At least four local agencies continue to permit it, according to policies they submitted to the attorney general’s office that year.

The Pierce County Sheriff’s Department said it still allows hog-tying but declined to comment on the bill. One of the department’s deputies was involved in restraining Ellis, whose face was covered by a spit-hood when he died.

THOSE SUPPORTING THE LEGISLATION

Trudeau, who represents Tacoma, said she made sure Ellis’ sister, Monet Carter-Mixon, approved of her efforts before introducing the bill. Democratic Sen. John Lovick, who worked as a state trooper for more than 30 years, joined Trudeau in sponsoring the bill. Republican Rep. Gina Mosbrucker, a member of the House public safety committee, said she looked forward to learning more about the legislation.

“If it does turn out that this form of restraint for combative detainees is dangerous in any way, then I think the state should put together a grant and some money to buy and train on alternative methods to make sure that the officer and the person arrested is safe.” ~Republican Rep. Gina Mosbrucker

Please review my Search & Seizur Legal Guide and 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.

Mass Incarceration Deepens Inequality and Harms Public Safety

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Prison, Race & Law, Sentencing, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Local Impacts of Mass Incarceration: A Community Round Table - Center for the Humanities and the Public Sphere

A report from The Sentencing Project explores laws and policies that exacerbate inequality and disproportionately overburden communities of color. Specifically, the report gives the following examples:

  • Fines, fees, and predatory pricing exacerbate the economic precarity of justice-involved Americans and their families.
  • Employment during incarceration comes with low, and sometimes zero, wages. The average minimum wage for the most common forms of prison labor is $0.13/ hour. The average maximum is $0.52/ hour.
  • A criminal conviction creates lifelong barriers to securing steady employment and housing. Many states disqualify people with felony drug convictions from cash assistance and food stamps. Nearly all states also restrict voting rights for people with criminal convictions. Yet research has shown that post-incarceration employment, access to food stamps, and voting are associated with lower recidivism rates.
  • Finally, the high cost of mass incarceration comes at the expense of investing in effective crime prevention and drug treatment programs. These laws and policies exacerbate the marginalization of justice-involved people—who are disproportionately people of color—by eroding the economic and social buffers against crime and increasing the likelihood of police contact.

WHAT ARE THE SOLUTIONS?

Fortunately, jurisdictions around the country have initiated promising reforms to reduce the direct and indirect harms of criminal convictions and redirect resources to more effective interventions:

  • To promote beneficial contact with support networks, some jurisdictions have made all phone calls from their prisons free.
  • To end the injustices associated with prison labor, many jurisdictions have removed language allowing “slavery and involuntary servitude” in the case of punishment for a crime. Advocates are still working to ensure that this change bans forced and unpaid labor among incarcerated workers.
  • To reduce labor market discrimination resulting from a criminal record, a majority of states and many cities “Ban the Box.” This action removes the question about conviction history from initial job applications and delays a background check until later in the hiring process.
  • A majority of states no longer impose bans on food stamps or cash assistance for people with a felony drug conviction.
  • Finally, Washington, DC, has joined Maine, Vermont, and Puerto Rico in fully untangling voting rights from criminal legal involvement by permitting its prison population to vote.
  • The federal government and states are also increasing investments in crime prevention.

My opinion? For the criminal legal system to uphold the principle of justice, policymakers and practitioners will need to protect and expand these reforms.

Also, prison is a terrible place. 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.

9th Circuit: Harassment is a Crime of Violence

9th Circuit Court of Appeals, Bellingham Defense Attorney, Federal Crimes & Prosecutions, felony, Harassment, Immigration, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Immigration Courts Further Limit Legal Help Available to People Facing Deportation

In Rodriguez-Hernandez v. Garland, the Ninth Circuit Court of Appeals held that a Washington conviction for Harassment is a crime of violence. This is because the statute requires the “threatened use of physical force against the person or property of another.” As such, being convicted of Harassment risks deportatation for non-citizens.

BACKGROUND FACTS

In 2015, Rodriguez-Hernandez was an immigrant living in the United States. He served with a notice to appear alleging removability on the basis that he was not admitted or paroled into the United States (U.S.). Apparently, he faced persecution in Mexico due to threats made against his family. Rodriguez-Hernandez applied for cancellation of removal and sought asylum in the U.S.

Among other things, the 9th Circuit addressed whether Rodriguez-Hernandez’s Harassment conviction was for a crime of violence under federal law.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit began by saying that a noncitizen convicted of an aggravated felony is a deportable offense. It also discussed Washington’s Harassment statute in depth as follows:

RCW § 9A.46.020(1) provides that: (1) A person is guilty of harassment if: (a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or (ii) To cause physical damage to the property of a person other than the actor; or (iii) To subject the person threatened or any other person to physical confinement or restraint; or (iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and (b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out (emphasis supplied).

Next, the 9th Circuit addressed whether Harassment was a violent offense:

“A crime of violence requires physical force against the person or property of another . . . However, a crime of violence “does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality. The standard is force capable of causing physical pain or injury. . . .”  ~9th Circuit Court of Appeals

With that reasoning, the 9th Circuit held that Rodriguez-Hernandez’ threats against his family were, in fact, crimes of violence. Therefore, because Rodriguez-Hernandez was convicted of a crime of violence, he was ineligible for cancellation of removal or asylum.

My opinion?

The 9th Circuit’s Rodriguez-Hernandez v. Garland, certainly makes Washington’s Harassment statute far more egrigious for citizens and non-citizens alike. It could possibly have the following impacts and consequences on current charges:

  • Misdemeanor harassment with a DV tag is now a deportable “crime of domestic violence,” regardless of sentence.
  • Felony harassment, under any subsection, with a sentence imposed of one year or more will be an aggravated felony “crime of violence.” [Previously only the “threaten to kill” subsection had been held to be a “crime of violence.”]
  • Felony harassment-DV will be a deportable “crime of domestic violence” regardless of sentence imposed.

Even worse, the decision could have terribly negative impacts on non-citizens with prior convictions:

  • Misdemeanor harassment-DV convictions:
    • If conviction occurred prior to July 22, 2011 and the sentence imposed (regardless of time suspended) was 365 days it will be an aggravated felony “crime of violence.” Aggravated felonies carry the most severe immigration consequences and bar eligibility for any discretionary relief from removal.
    • Regardless of date of conviction, it may now be deemed a deportable crime of domestic violence.
  • Felony harassment convictions:
    • Any felony harassment conviction with a sentence imposed (regardless of time suspended) of one year or more may be deemed an aggravated felony crime of violence. Previously, only felony harassment “threat to kill” was considered an aggravated felony crime of violence.
    • Any felony harassment-DV conviction may now be deemed a deportable crime of domestic violence, regardless of sentence.

How this decision impacts individual non-citizen defendants will depend on their current immigration status, their immigration and criminal history, and other individual circumstances. For case-specific information please consult with other immigration counsel knowledgeable in the interplay between criminal and immigration law.

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.

WA Privacy Act Does Not Suppress or Protect Audio Recordings of Sexual Assault

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , , , ,

Recorded conversations: A warning and call for change - Tampa Bay Business & Wealth

In State v. Kamara, the WA Court of Appeals held that the recorded sounds of a sexual assault are not a “private conversation” as defined by the Privacy Act.  Therefore, a recording of such sounds, made without the consent of the defendant, is admissible at trial.

BACKGROUND FACTS

Under Washington’s Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. And evidence obtained in violation of the privacy act is typically inadmissible at trial.

Mr. Kamara and B.T. met at a mutual friend’s birthday party in July 2019. B.T. had seen Kamara before at various events with members of the Liberian community. B.T. knew Kamara as JR. After the party, Kamara sent B.T. a friend request on Facebook. They began messaging each other on Facebook. Kamara asked B.T. out but she declined because she was in a relationship. Kamara was persistent and asked several more times.

Because Kamara kept pushing, on August 30, 2019, B.T. agreed to meet with him. Once at Kamara’s apartment, Kamara offered B.T. a drink. B.T. declined, but Kamara poured her some wine. They watched a program on TV. After some time, Kamara sat next to B.T. on the couch and then he began putting his hands on her, stroking down her arm, and leaning against her.

B.T. got up to use his bathroom and give herself some time to think. While in the bathroom, B.T. activated a recording app on her phone. At first, she just played with it, recording sounds and then listening. The next time she activated it, she got a notification and switched to a different app on her phone without stopping the recording.

When she returned to the living room, B.T. sat farther away from Kamara on the couch and continued scrolling through her social media to distract herself. Kamara moved closer and began making sexual remarks and advances toward B.T. B.T. told him she had to go, since she had work the next morning, but Kamara insisted she stay until 2:00 a.m. B.T. told Kamara “no” multiple times and told Kamara not to touch her.

B.T. told Kamara she would just nap on the couch until he took her home at 2:00 a.m., but he wanted her to go to his room. Kamara forced B.T. into his bedroom by pulling her off the couch and pushing her back until she was pushed onto his bed. He pinned her arms to the bed and then used his full body weight on her so she couldn’t move. He pulled her pants down and raped her while she cried and repeatedly told him “no, don’t, and I don’t want to do this.” B.T. tried to fight him off, but did not succeed.

Sounds of the ordeal were audio-recorded on B.T.’s phone.

After B.T. continued to cry and beg Kamara to stop, he finally got off of her and walked out of the room. B.T. testified that she felt defeated. When Kamara returned and started touching her again, B.T. didn’t fight, she “just let him do what he had to do.” Kamara then offered to take her home. Once home, B.T. texted her best friend about what had happened.

The next day, B.T.’s friend took her to Auburn Regional Medical Center where B.T. underwent a sexual assault examination. Afterward, she discovered the audio recording on her cell phone. She emailed the recording to police. Kamara was arrested and charged with rape in the second degree.

THE JURY TRIAL

Before trial, Kamara moved under CrR 3.6 to suppress the audio recording as inadmissible under Washington’s privacy act, RCW 9.73.030. The trial judge found that the contents of the recording do not capture a conversation.

“What is recorded is not an exchange of information,” said the trial judge. “Instead, what it captures is an act of sexual assault.” The entire recording was played for the jury. As a result, the jury found Kamara guilty of rape in the second degree.

Kamara appealed his conviction. He argued that the trial judge erred in admitting the victim’s cell phone audio recording of the rape because it was a private conversation made without his consent and violated the privacy act.

COURT OF APPEALS’ ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Washington’s Privacy Act is considered one of the most restrictive in the nation. Under the Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. Information obtained in violation of the act is inadmissible in any civil or criminal case.

The Court discussed whether a recorded communication is “conversation.” Following that, it discussed whether the communication between Kamara and B.T. was a conversation.

“In determining whether a communication between individuals constitutes a ‘conversation’ under the privacy act, courts use the ordinary meaning of the term: “oral exchange, discourse, or discussion.” State v. David Smith, 85 Wn.2d 840, 846, 540 P.2d 424 (1975). Recordings of sounds that do not constitute a ‘conversation’ do not implicate the privacy act. David Smith, 85 Wn.2d 846. In particular, sounds of an assaultive act are not a conversation protected by the privacy act; a recording of such noise is admissible.” ~WA Court of Appeals.

Based on its review of the recording, the Court of Appeals agree with the trial court’s conclusion that the last nine minutes of the recording do not constitute a conversation, and instead record an assault.

But there is no “exchange of ideas and words” in the last nine minutes of the recording. And unlike in both Smith cases, the recording did not capture brief oral exchanges between B.T. and Kamara.

With that, the Court of Appeals agreed with the trial court that the last nine minutes of the recording contains the sounds of a sexual assault being committed. “This portion of the recording is not a private conversation as contemplated by the privacy act,” said the COurt of Appeals. It affirmed Kamara’s conviction and rejected his appeal.

My opinion? Washington courts are very protective of citizens’ privacy. Privacy issues are often implicated when law enforcement uses any form of electronic surveillance. True, Washington’s one-party consent law is among the most restrictive in the nation. Most legal and policy issues in this area involve the non-consensual acquisition of “private” communications. This is a highly sensitive area because it involves both fear of “big brother” and concerns for privacy.

Clearly, however, situations such as this case circumvent the protections of WA’s Privacy Act.

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.