Tag Archives: Mt. Vernon Criminal Defense

Display of a Firearm & Probable Cause

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Federal Crimes & Prosecutions, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

What to know about open carry gun laws in Arizona - Phoenix Business Journal

In US v. Willy  (July 26, 2022), the Ninth Circuit Court of Appeals held that a defendant’s charges for Unlawful Display of a Weapon were not supported by Probable Cause.

BACKGROUND FACTS

Reporting Party #1

On May 12. 2019, the Yakima County’s Sheriff’s Office received a call from a witness (“Reporting Party 1”). The witness stated that a man had pulled up outside of his home in a vehicle and displayed a firearm. Dispatch relayed this information to Deputy Thaxton, who interviewed Reporting Party 1 at his residence. Reporting Party 1 told Deputy Thaxton that a white male in a green truck pulled up on the street in front of his house. The man began talking about being abducted and kept somewhere in the area. The man said he was trying to find the place where he was kept. During the conversation, the man pulled out a semiautomatic pistol, racked the slide, and then put it down.

Reporting Party 1 expressed concern about the man’s mental state. He provided Deputy Thaxton with the truck’s license plate number. The vehicle came back as registered to Mr.  Willy. Thaxton showed Reporting Party 1 Willy’s Department of Licensing photo, and he identified Willy as the man with whom he had spoken. Reporting Party 1 said that Willy made no threats to him, nor had Willy pointed the pistol at him at any time.

Reporting Party #2

About ten minutes after leaving Reporting Party 1’s residence, Deputy Thaxton responded to another report from dispatch. The second call had come from Reporting Party 2, who lived about three miles from the previous caller. Deputy Thaxton spoke to the second witness over the phone because Reporting Party 2 had already left her residence. Reporting Party 2 stated that a man with a name like “Willis” pulled up to her gate in a green truck when she was leaving her house. “Willis” told her that he had been kidnapped and held in a camouflaged trailer or van in the area and that he was trying to find it. While they were talking, the man told her he was armed and then displayed a pistol and put it away. Reporting Party 2 told the man she did not know the place he was looking for, and he drove away. Reporting Party 2 said that she was not was not directly threatened, nor was Willy argumentative or hostile.

Deputy Thaxton located the green truck pulling into a gas station. Once he confirmed the license plate matched the one given to him by Reporting Party 1, Deputy Thaxton turned on his emergency lights and conducted a “high-risk stop.” With his firearm drawn, Deputy Thaxton ordered Willy out of the vehicle. Willy complied with all of Deputy Thaxton’s orders. While making Willy turn around, Deputy Thaxton saw a pistol holstered on his hip. Deputy Thaxton removed the gun, put Willy in handcuffs, and escorted him to the back seat of the police vehicle.

After his arrest, a search of Willy’s vehicle and person recovered illegal firearms and a modified CO2 cartridge. Willy was charged with making and possessing a destructive device in violation of the National Firearms Act, 26 U.S.C. § 5861. He was also charged with Unlawful Display of a Weapon under Washington statute.

Willy moved to suppress the evidence. The lower federal district court granted the motion to suppress. It found that although Deputy Thaxton had reasonable suspicion to conduct an investigatory stop, he lacked probable cause to make the arrest. The evidence was “tainted by the illegality of the arrest.” The Government filed a timely notice of appeal to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

First, the Ninth Circuit analyzed the scope of Washington’s Unlawful Display of a Weapon statute. It began with a discussion of how the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.

“Washington is an open carry state. That means that it is presumptively legal to carry a firearm openly.” ~Ninth Circuit Court of Appeals

“The bare fact that Willy displayed a weapon would not be sufficient to stop Willy, because there is no evidence that he was carrying a concealed weapon,” said the Ninth Circuit. Moreover, the reporting parties’ statements that Willy was carrying a gun “created at most a very weak inference that he was unlawfully carrying the gun concealed without a license, and certainly not enough to alone support a Terry stop.”

Additionally, the Ninth Circuit emphasized that Thaxton acquired no additional reasons for arresting Willy until after he stopped him. When Thaxton ordered Willy to leave his truck and turn around slowly, Willy was openly carrying his pistol, in a holster on his hip. The Ninth Circuit pointed out that Washington courts have refused to enforce the statute when the threats are not sufficiently direct or imminent.

Deputy Thaxton’s suspicion that Willy had violated § 9.41.270 arose not from his own observations but from the accounts of two reporting parties.

“The strongest fact for the government is that Willy racked the slide of his gun in the presence of Reporting Party 1. In context, however, that fact does not demonstrate that Willy was acting in manner that warrants alarm.” ~Ninth Circuit Court of Appeals.”

With that, the Ninth Circuit next addressed whether the C02 cartridge found in Willy’s car – and his statements to police – should be suppressed as evidence supporting the federal charges. The Ninth Circuit began by saying that under the “fruits of the poisonous tree” doctrine, evidence seized subsequent to a violation of the Fourth Amendment is tainted by the illegality and subject to exclusion, unless it has been sufficiently “purged of the primary taint.” Wong Sun v. United States. Ultimately, the Ninth Circuit suppressed that evidence as “fruits of the poisonous tree.”

The Ninth Circuit concluded by affirming the lower federal court’s order granting the defendant’s motion to suppress.

My opinion? Good decision. The Ninth Circuit gave an accurate assessment of Washington Law surrounding this issue and made the right decision. Washington is indeed an “Open Carry” state. This fact alone challenges many people’s allegations that someone is unlawfully displaying a weapon. Also , the probabale cause alleged in this case was fart too attenuated to be reliable.

Please contact my office if you have Firearms Offense involving Search and Seizure issues. Hiring an effective and competent defense attorney is the first and best step toward justice.

High Court Reverses Conviction Due to Juror’s Racial Biases At Jury Selection

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

Opinion | To Save Our Justice System, End Racial Bias in Jury Selection - The New York Times

In State v. Gutierrez, the WA Court of Appeals reversed a defendant’s conviction because a juror’s inquiries on the defendant’s  immigration status demonstrated ethnic bias.

FACTUAL BACKGROUND

Mr. Gutierrez was charged with first degree robbery, second degree assault, and first degree unlawful possession of a firearm. His case proceeded to trial. During jury selection, potential Juror #16 asked about the immigration status of the defendant. The juror had additional colloquy with the attorneys. Neither party struck juror #16. The juror was later seated on the jury panel. The jury later entered a verdict of not guilty to the charge of first degree robbery, and guilty verdicts on the charges of second degree assault, unlawful possession of a firearm, and felony harassment.

On appeal, Mr. Gutierrez raises an issue of juror bias. He argued that during jury selection, Juror #16 demonstrated actual bias, but was nevertheless seated as a
juror and not removed by his attorney or the court.

COURT’S ANALYSIS & CONCLUSIONS 

The Court of Appeals reversed Mr. Gutirrrez’s conviction. It reasoned that although Mr. Gutierrez did not move to strike Juror #16, a trial judge must do so where grounds to do so are apparent in the record. Under RCW 2.36.110, it is the judge’s duty to excuse any juror who has manifested unfitness as a juror by reason of bias or prejudice.

The Court of Appeals further reasoned that a juror demonstrates actual bias when he exhibits a state of mind in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. It referred to  State v. Berhe in describing how bias based on race and ethnicity may be explicit or implicit:

“Bias based on race and ethnicity may be explicit or implicit. Explicit racial bias is consciously held, although the biased person may not be willing to admit to having such bias if asked. Implicit racial bias, however, primarily exists at an unconscious level, such that the biased person is unlikely to be aware that it even exists. This occurs because it is now socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them.” ~WA Court of Appeals

“In this case, the comments by Juror #16 expressed actual bias,” said the Court of Appeals. “Juror #16’s comments demonstrated that he was operating under a false presumption that Hispanic and Latinx persons were not citizens, and if they were not citizens then they were guilty of a crime.” Consequently, the Court ruled that Juror #16’s comments demonstrated ethnic bias sufficient to raise a prima facie showing that he was unqualified to sit as a juror in Mr. Gutierrez’s case. With that, the Court of Appeals reversed Mr. Gutierrez’s criminal conviction:

“Juror #16 expressed actual bias during voir dire by presuming that Hispanic or Latinx defendants were not citizens and were most likely committing an immigration crime. When the attorneys failed to address this bias, the court should have inquired further or excused the juror on its own initiative. Failure to do so is an abuse of discretion. We reverse and remand.” ~WA Court of Appeals.

My opinion? Good decision. Illegal racial discrimination in jury selection inflicts harm on excluded jurors, produces wrongful convictions and excessive sentences, and compromises the integrity of the legal system as a whole.

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.

Extraction of Smartphone Data by U.S. Law Enforcement

Bellingham Defense Attorney, Cell Phone, Mount Vernon Criminal Defense Attorney, police, Search and Seizure, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , , ,

Mass Extraction | Upturn

A new report from upturn.org reveals that thousands of smartphones are searched by police every day across the US. Unfortunately, most searches are done without a warrant and in violation of the Fourth Amendment’s guarantee against unreasonable searches and seizures.

THE PROBLEM

Law enforcement agencies across the country search thousands of cellphones, typically incident to arrest. To search phones, law enforcement agencies use mobile device forensic tools (MDFTs). This powerful technology allows police to extract a full copy of data from a cellphone. This data includes all emails, texts, photos, location, app data, and more. The report documents more than 2,000 agencies that have purchased these tools, in all 50 states and the District of Columbia.

“We found that state and local law enforcement agencies have performed hundreds of thousands of cellphone extractions since 2015, often without a warrant. To our knowledge, this is the first time that such records have been widely disclosed.” ~Upturn.org

According to the report, every American is at risk of having their phone forensically searched by law enforcement. Police use these tools to investigate assault, prostitution, vandalism, theft, drug-related offenses, etc. Given how routine these searches are today, it’s more than likely that these technologies disparately affect and are used against communities of color.

The emergence of these tools represents a dangerous expansion in law enforcement’s investigatory powers. In 2011, only 35% of Americans owned a smartphone. Today, it’s at least 81% of Americans. Moreover, many Americans — especially people of color and people with lower incomes — rely solely on their cellphones to connect to the internet. For law enforcement, mobile phones remain the most frequently used and most important digital source for investigation.

THE SOLUTIONS

Upurn.org believes that MDFTs are simply too powerful in the hands of law enforcement and should not be used. But recognizing that MDFTs are already in widespread use across the country, they offer a set of preliminary recommendations that, in the short-term, help reduce the use of MDFTs. These include:

  • banning the use of consent searches of mobile devices,
  • abolishing the plain view exception for digital searches,
  • requiring easy-to-understand audit logs,
  • enacting robust data deletion and sealing requirements, and
  • requiring clear public logging of law enforcement use.

Of course, these recommendations are only the first steps in a broader effort to minimize the scope of policing, and to confront and reckon with the role of police in the United States.

“This report seeks to not only better inform the public regarding law enforcement access to mobile phone data, but also to recenter the conversation on how law enforcement’s use of these tools entrenches police power and exacerbates racial inequities in policing. ” ~Upturn.org

Special thanks to authors Logan Koepke, Emma Weil, Urmila Janardan, Tinuola Dada and Harlan Yu for providing this highly informative and educational material.

Please review my Search & Seizure Legal Guide and contact my office if you are charged with a crime involving a smartphone search. Hiring an effective and competent defense attorney is the first and best step toward justice.

2021 Crime Report: Violent Crime Up as Washington State Sees Decrease in Police Officers

Assault, Bellingham Defense Attorney, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Robbery, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Despite Crime Rate Decrease, Majority of Americans Think It Is Increasing

Journalist Adel Toay for King5.com says that violent crime has increased in Washington. According to a crime report from the Washington Association of Sheriffs and Police Chiefs (WASPC), violent crimes and murders increased while the number of police officers available to respond to incidents decreased in 2021.

“This is just very specific data, about crime trends, about our staffing level, about a couple of things that sort of stand out. But the numbers are all there. We’re very transparent. We wanted to get this out to everybody so that they have that information within their communities,” ~Steven Strachan, executive director of WASPC

According to the report, violent crime overall, which includes murder, aggravated assault, robbery and rape, increased by 12.3% in 2021.

There were 325 murders in 2021, an increase of 5.9% over 2020, following a 47% increase the year before. Strachan said this is the highest number of murders recorded since WASPC began collecting this data in 1980.

Hate crimes like Malicious Harassment in the state increased by 26.5% in 2021 with the most frequent offenses being intimidation and destruction of property.

Total crime overall is statistically down slightly, including a 78.8% decrease in identity theft and fraud from 2020, largely due to the huge spike in unemployment fraud during the pandemic. Other factors contributing to the statistical downward trend include a 60.9% decrease in drug offenses and a 73.6% decrease in drug arrests, due to a change in state laws.

“This is predominantly due to the Blake decision in 2021, which completely changed the ability to charge a criminal offense for personal possession of any drug,” said Strachan. In February 2021, the Washington State Supreme Court ruled the state’s simple drug possession crime statute was unconstitutional and voided it.

THE LOSS OF POLICE OFFICERS

Washington state lost nearly 500 police officers statewide in 2021 as the state’s population grew more than the population of Everett, according to the report. The number of commissioned law enforcement officers decreased 4.4%. The per capita rate of law enforcement officers fell to 1.38 per 1,000 statewide.

“When the staffing is down, the numbers are up,” said Strachan.

Strachan said it is the lowest per capita rate of officers the state has seen since WASPC began tracking this data in 1980, and it’s the lowest in the nation. The national average per capita rate for officers is 2.33 officers per 1,000, according to the FBI.

“Right now, a lot of agencies are treading water. Not every single one. Not every single agency is in a staffing crisis. Many are. These things are problems with solutions, and that is to support good policing and to recognize that public safety is important.”~Steven Strachan, executive director of WASPC

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.

Washington Supreme Court Will Address How to Reduce Racial Disparities & Reform Juvenile Justice

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

Bias in Criminal Justice - Common Reading Research Guide 2020-21 - LibGuides at Elon University

According to a press release, on July 13, 2022, a task force will present recommendations to the Washington Supreme Court on reducing and, where possible, eliminating racial disparities in Washington’s criminal and juvenile justice systems. The public presentation is scheduled for 10:30  AM – 12:00 PM, and will be livestreamed and recorded by TVW.

The recommendations come from a work group of Task Force 2.0: Race and Washington’s Criminal Justice System, a project coordinated by the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law. Presenters will include Korematsu Center Executive Director Professor Bob Chang, Assistant Directors Jessica Levin and Melissa Lee, public defense attorneys, child welfare experts, Pierce County Superior Court Judge André M. Peñalver, and more.

Task Force 2.0 last year presented extensive research to the Supreme Court detailing racially disproportionate treatment and outcomes in the state’s criminal justice system, outcomes significantly impacted by historically racist laws and practices. The follow-up presentation provides recommendations in 14 areas – such as policing and traffic stops, prosecutorial decision-making, pre-trial release, sentencing and prison, community supervision, legal financial obligations and more – as well as recommendations for reforming the juvenile justice system from a special sub-committee.

The Task Force was launched in mid-2020 by the deans of Washington’s three law schools following the death of George Floyd, nationwide protests for racial justice, and the June 4, 2020 Open Letter of the justices of the Washington Supreme Court challenging members of the state judiciary and legal community to recognize racial injustice and take steps to eliminate it.

The Task Force is dubbed “2.0” because it is a re-launch of the Race and Justice Task Force established in 2010 following comments made by two then-sitting Washington Supreme Court justices about criminality and race. That first task force produced a report in 2011 with data that has guided a number of efforts since then, including an annual symposium presented by the Washington State Minority and Justice Commission focusing on specific issues of racial disparity.

My opinion? We’ve GOT to be proud of our WA Supreme Court for being so proactive in resolving racial disparities in the justice system.

The rise of mass incarceration may seem like a recent phenomenon, but it is a repeating pattern throughout this country’s history. From America’s founding to the present, there are stories of crime waves or criminal behavior followed by patterns of disproportionate imprisonment of those forced to the margins of society: Black people, immigrants, Native Americans, refugees, and others.

The result has been the persistent and disproportionate impact of incarceration on people of color, immigrants, and people experiencing poverty. From 1850 to 1940, racial and ethnic minorities—including foreign-born and non-English speaking European immigrants—made up 40 to 50 percent of the prison population. In 2015, about 55 percent of people imprisoned in federal or state prisons were Black or Latino.

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.

Low-Level Robbery Won’t Get A Reduced Sentence

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Race & Law, Robbery, Sentencing, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Why Grocery Stores are adding Supplemental Security during the Coronavirus Outbreak | CITIGUARD

In State v. Thomason, the WA Supreme Court held that the low-level, de minimis nature of some crimes can allow for an exceptional downward sentence. However, the minimal level of force used to prove Robbery makes it inappropriate to allow a downward sentence.

FACTUAL BACKGROUND

On September 5, 2018, Thomason entered Yoke’s Fresh Market grocery store in Spokane.  A plainclothes security guard, Mr. Swartz, followed Thomason around the store. Swartz watched Thomason pick up about $15 worth of meat and cheese. Thomason proceeded to another part of the store and tucked the food down his pants. Thomason then left the store without paying.

Swartz followed Thomason out and confronted him. Swartz grabbed Thomason’s arm, displayed his badge, and asked Thomason to go back inside the store. Thomason tried to pull free, and Swartz warned him that he was only making the situation worse. The two pulled at each other back and forth as Swartz tried to detain Thomason and Thomason tried to break free.

During this exchange, Thomason swung at Swartz two times. Thomason used a closed fist, aimed at Swartz’s face both times, and hit Swartz the second time with a glancing blow. Swartz yelled at his partner, a guard in training, to help. Thomason punched Swartz a third time. Swartz testified that the third punch “hurt” and caused a minor injury. His face was sore and slightly red for a day or two. Thomason escaped by pulling out of his sweatshirt and running. He was seen getting into a passenger car and was eventually apprehended.

The State charged Thomason with second degree robbery just before trial. A jury convicted him as charged.

THE SENTENCING

At sentencing, the parties agreed that Thomason’s offender score was 10. That made his standard sentencing range 63-84 months. Thomason requested a 12-month sentence. This was a exceptional downward departure from his sentencing range.

The trial court judge considered an exceptional sentence below the standard range. The judge said that the crime was no more than a “glorified shoplifting charge” that should have been treated as a misdemeanor. Nevetheless, the judge determined that the law barred him from imposing an exceptional downward sentence. The judge imposed 63 months, the bottom of the standard range, instead.

Thomason appealed on several grounds. However, the Court of Appeals affirmed his conviction. The WA Supreme Court granted appellate review solely on the exceptional sentence issue.

COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that Washington’s Sentencing Reform Act lists mitigating circumstances that can support an exceptional sentence below the standard range. It explained that in appropriate cases, the de minimis nature of a crime can support an exceptional sentence below the standard range. An appropriate case is one in which (1) the legislature did not consider the mitigating factor already when it listed the elements of the crime or set the standard sentence range and (2) the factor constitutes a substantial and compelling reason to depart below the range.”

The Court acknowledged Thomason’s argument that his crime was de minimis. The value of the items taken was low and no force was used to accomplish the taking. Although force was used to retain the property, it was “minor” force. However, the court disagreed with Thomasan’s argument that he was allowed an exceptional downward sentence.

The Court reasoned that the plain language of the robbery statute shows that the legislature did consider a defendant’s minimal use of force when it defined the crime of second degree robbery.

“As the emphasized language shows, the legislature clearly considered whether the crime of second degree robbery should punish a taking combined with a minimal showing of force. It criminalized a taking in which either ‘force’ ‘or’ no force at all—just ‘fear’—is used to accomplish the taking . . . The legislature even said that where, as here, such force or fear is used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, the degree of force is immaterial.”~WA Supreme Court

With that, the WA Supreme Court affirmed Mr. Thomason’s conviction.

My opinion? I agree with Chief Justice Steven Gonzalez’s concurring opinion. He wrote separately because he was increasingly troubled by our controlling, unchallenged precedents and the sentencing laws they interpret.

“Washington’s sentencing guidelines suggest, among other things, that unconstrained discretion in sentencing operates to favor whites and disfavor members of minority groups,” said Justice Gonzalez. As part of the concurrence, he references an article about prosecutorial discretion and sentencing guidelines. He ended his opinion with choice parting words:

“We must find a way to live justly with one another. We must not steal from each other or strike each other. But when it happens, the State must not respond with a disproportionate punishment. I am increasingly concerned that sentences like this for what amounts to glorified shoplifting are simply not just and speak to deep problems with our sentencing systems.” ~Chief Justice Steven C. Gonzalez, WA Supreme Court.

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

Criminal Conviction Reversed on Prosecutor’s Race-Based Misconduct & Voir Dire.

Assault, Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Race & Law, Sixth Amendment, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Survey: Trump's immigration rhetoric is negatively impacting Latinos' health

In State v. Zamora, the WA Supreme Court held that a Prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

BACKGROUND FACTS

This case arises from a violent police confrontation that escalated far beyond what should have happened. On Super Bowl Sunday, February 5, 2017, Joseph Zamora was walking to his niece’s house. A neighbor called the police to report a possible vehicle prowler. When Zamora reached the driveway of his niece’s home, he was contacted by responding officer Kevin Hake. Hake quickly became nervous because of Zamora’s demeanor. Fearing Zamora had a weapon, Hake grabbed Zamora and attempted to restrain him.

A struggle ensued and escalated to include what may be described as extreme acts of violence. Ultimately, eight officers were involved in subduing Zamora. When responding paramedics arrived, Zamora was handcuffed, hog-tied, and lying face down in the snow with two officers restraining him. He had no heartbeat or pulse. It took the paramedics seven minutes to revive him. Zamora was taken to the hospital and remained in intensive care for approximately four weeks.

Zamora was charged with two counts of Assault Third Degree on the officers who “restrained” him. Officer Hake’s injuries included some small scratches around his hand and wrist and some bruising. Officer Welsh sustained an injury to his hand from punching Zamora in the back of the head multiple times. Zamora’s case proceeded to trial.

The Grant County Prosecutor began voir dire. He introduced the topics of border security, illegal immigration, and crimes committed by undocumented immigrants. The prosecutor repeatedly elicited potential jurors’ comments and views on these topics. At one point, he referred to “100,000 people illegally” crossing the border each month. He asked jurors whether “we have or we don’t have enough border security.” He also asked jurors if they had “heard about the recent drug bust down at Nogales, Arizona where they picked up enough Fentanyl to killed 65 million Americans.” Defense counsel did not object to the prosecutor’s questions and remarks on border security, illegal immigration, undocumented immigrants, and drug smuggling.

A jury found Zamora guilty as charged.

Zamora appealed. He argued his right to an impartial jury was violated when the Prosecutor appealed to jurors’ potential racial bias during voir dire. Division Three of the Court of Appeals affirmed Zamora’s convictions, concluding that his constitutional rights were not violated. Zamora appealed to the WA Supreme Court. They accepted review.

LEGAL ISSUE

Whether the prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

COURT’S ANALYSIS & CONCLUSIONS

The Court concluded that the prosecutor intentionally appealed to the jurors’ potential racial bias in a way that undermined Zamora’s presumption of innocence. Therefore, Zamora was denied his constitutional right to an impartial jury because of the prosecutor’s race-based misconduct.

Justice Charled W. Johnson authored the Court’s opinion. He began by explaining that the Sixth and Fourteenth Amendments to the United States Constitution and the Washington State Constitution guarantee a criminal defendant the right to an impartial jury. Justice Johnson said the Court has long recognized that the constitutional right to a jury trial includes the right to an unbiased and unprejudiced jury. He also upheld the right to fair trial in the face of prosecutorial misconduct:

“As a quasi-judicial officer and a representative of the State, a prosecutor owes a duty to a defendant to see that their rights to a constitutionally fair trial are not violated. Thus, a claim of prosecutorial misconduct directly implicates the constitutional right to a fair trial.” ~Justice Johnson, WA Supreme Court.

Justice Johnson also explained that in order to prevail on a prosecutorial misconduct claim, a defendant who timely objects must prove that the prosecutor’s conduct was both improper and prejudicial in the context of the entire trial. If the defendant does not object, on appeal the defendant must show the improper conduct resulted in incurable prejudice.

However, when the misconduct implicates racial bias, “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence,” courts will vacate the conviction unless the State proves beyond a reasonable doubt that the race-based misconduct did not affect the jury’s verdict.

“To determine whether the prosecutor’s conduct in this case flagrantly or apparently intentionally appealed to jurors’ potential racial bias, we ask whether an objective observer could view the prosecutor’s questions and comments during voir dire as an appeal to the jury panel’s potential prejudice, bias, or stereotypes about Latinxs. The objective observer is a person who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination.” ~Justice Johnson, WA Supreme Court

Here, the Court reasoned that the prosecutor’s questions and remarks implicated the defendant’s ethnicity. The prosecutor’s conduct appealed to the jurors’ potential racial or ethnic bias, stereotypes, or prejudice. The Court said we must be vigilant of conduct that appeals to racial or ethnic bias even when not expressly referencing race or ethnicity:

“The state-sanctioned invocation of racial or ethnic bias in the justice system is unacceptable. Accordingly, we hold that the prosecutor in this case committed race-based misconduct during voir dire, and the resulting prejudice to the defendant is incurable and requires reversal. We reverse the Court of Appeals and reverse and vacate the convictions.” ~Justice Johnson, WA Supreme Court

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 State Cracks Down on Organized Retail Theft

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Organized Retail Theft, Skagit County Criminal Defense, Theft, Whatcom County Criminal Defense, , , , , ,

What is Organized Retail Crime

King5 News reports that the Organized Retail Crime Theft Task Force was recently formed. State Attorney General Bob Ferguson says the Task Force will focus on sophisticated, organized crime rings and work to stop them.

According to the Retail Industry Leaders Association, organized theft cost Washington’s retailers around $2.7 billion last year.

Given the magnitude of losses, State Attorney General Bob Ferguson says it’s vital that multiple agencies and retailers work together because organized retail theft is simply too big for one organization to take on alone.

“No one retail store, no one prosecutor, no one attorney general, no one US Attorney can solve the problem. It’s just way too big. I found in my experience, from working with other task forces and other contexts, that sharing of information helps with enforcement, helps with prevention, raises the profile of the issue, and gets folks in the room to make sure we go after the bad guys, hold them accountable, and the provide the resources we need to help retailers and small businesses who’re dealing with these challenges.” ~State Attorney General Bob Ferguson

Organized crime could look like three men coordinating an early morning break-in, or it could occur on a smaller scale, like at the downtown Seattle Target, where police arrested a man after he stole alcohol 22 times over the course of a few days.

However, one of the biggest concerns of the task force is stolen baby formula, which is then resold on secondary sites like Amazon and becomes a risk for parents.

“That means that parents who unwittingly buy stolen formula on the secondary market may be putting their babies at significant risk if the thieves, for example, fail to store the product at the appropriate temperatures, or if the thieves manipulated the packaging, such as exchanging the expiration date,” Ferguson said.

He said the task force hopes to have an immediate impact statewide.

“We’re all stepping up to address what really is a true crisis in our state (and) … has significant implications for businesses and for the people of our state,” said Ferguson.

In Washington, Organized Retail Theft is a Class C Felony. Please contact my office if you, a friend or family member are charged with Theft or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

U.S. Supreme Court Expands Gun Rights

Bellingham Defense Attorney, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Gun Bans and Regulations: From a Second Amendment Advocate – The Wildezine

In New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court held that Americans have a right to carry firearms in public for Self-Defense. Their ruling marks a major expansion of gun rights after a series of mass shootings. It’s also a ruling likely to lead to more people legally armed.

BACKGROUND FACTS

The state of New York passed a law requiring a person to show a special need for self-protection in order to to receive a license to carry a firearm outside their home. Robert Nash and Brandon Koch challenged the law after New York rejected their concealed-carry applications based on failure to show “proper cause.” A federal district court dismissed their claims, and the U.S. Court of Appeals for the Second Circuit affirmed. The U.S. Supreme Court took the issue up on appeal.

LEGAL ISSUE

Does New York’s law requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense violate the Second Amendment?

COURT’S ANALYSIS & CONCLUSIONS

Holding: New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violates the Fourteenth Amendment. It prevents law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms.

Justice Clarence Thomas wrote the majority opinion and said the following:

“The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self- defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.” ~Justice Thomas, United States Supreme Court

With that, the Supreme Court reversed the lower federal court’s holding.

The Court’s split was 6-3 with the court’s conservatives in the majority and liberals in dissent. Justice Alito filed a concurring opinion. Justice Kavanaugh filed a concurring opinion, in which Chief Justice Roberts joined. Justice Barrett filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Justice Kagan joined.

In a dissent joined by his liberal colleagues, Justice Stephen Breyer focused on the toll from gun violence. He wrote that since the beginning of this year, there have already been 277 reported mass shootings — an average of more than one per day. He accused his colleagues in the majority of acting “without considering the potentially deadly consequences” of their decision. He said the ruling would “severely” burden states’ efforts to pass laws “that limit, in various ways, who may purchase, carry, or use firearms of different kinds.”

Several other conservative justices who joined Thomas’ majority opinion also wrote separately to add their views.

Justice Samuel Alito criticized Breyer’s dissent, questioning the relevance of his discussion of mass shootings and other gun death statistics. Alito wrote that the court had decided “nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun” and nothing “about the kinds of weapons that people may possess.”

“Today, unfortunately, many Americans have good reason to fear they will be victimized if they are unable to protect themselves.” The Second Amendment, he said, “guarantees their right to do so.”

Justice Brett Kavanaugh, joined by Chief Justice John Roberts, noted the limits of the decision. States can still require people to get a license to carry a gun, Kavanaugh wrote, and condition that license on “fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.”

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

Kitsap Judges’ Ruling Could Invalidate DUI Convictions Statewide

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

How Does a Breathalyzer Work? And Should You Refuse One?

Journalist reports that the Kitsap County District Court invalidated the results of a breathalyzer test (BAC Test) used by police. This ruling could have state-wide implications in thousands of DUI cases.

All four judges of the court agreed the state toxicologist violated state law when she approved software for the Dräger breathalyzer. This device is commonly used to test a person’s blood-alcohol level. The Dräger breathalyzer has been in the field since 2015 and is now used by nearly every law enforcement agency in the state.

Background Facts

On May 9, 2020, Mr. Keller was involved in a single-vehicle crash in Bremerton. Court records showed a Kitsap County sheriff’s deputy responded and smelled alcohol on Keller’s breath. He gave Keller a field sobriety test and Keller submitted to a blood alcohol test in the field using the portable Dräger breathalyzer. The test resulted in a 0.132 blood alcohol level. The legal limit in the state is .08.  Keller was arrested and is awaiting trial for DUI. On pretrial motion, his defense attorneys argued a  CrRLJ 3.6 Motion to Suppress the BAC Test. And apparently, they were successful.

How the Dräger Functions

The Dräger machine takes four samples of a person’s breath and then calculates the median, the center point of all four results.  It then provides a median number that is truncated to several decimal points. State law said the machine needs to truncate to four decimal points and then round up or down to three decimal points. Because the rounding was not part of the final calculation, any result the machine produced using the software approved by the state toxicologist violated state law.

The Court’s Ruling & Analysis

The judges reasoned that the Washington State Patrol oversees the State Toxicology Lab and is responsible for distributing the Dräger breathalyzer with the proper software to all local law enforcement in the state. However, the software approved by then-state toxicologist did not follow the calculations mandated by state law.

The judges issued two rulings. First, they wrote an 89-page ruling explaining their decision to their findings that the software did not follow state law. Second, they issued a court order stopping the use of results of the Dräger machine as evidence in all cases in Kitsap County.

Kudos to the defense attorneysGeorge Bianchi and Tom Weaver. They fought hard for justice. Thankfully, other defense attorneys in other counties can use the Kitsap County ruling in their own DUI cases. The state toxicologist approved software that was used in the Dräger machine across the entire state of Washington. Clearly, the software did not have the proper calculations and is presently being used by prosecutors and police.

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