Tag Archives: Skagit County Criminal Defense Attorney

Berghuis v. Smith: Defining the Hardship of Obtaining an Impartial “Cross Section” of the Jury Community

Jury Selection: How Social Media is Changing the Game | Richmond Journal of  Law and Technology

In Berghuis v. Smith, the U.S. Supreme Court held that a Michigan state court did not create an unfair bias in jury selection for a murder trial. case.

The defendant was an African-American man charged with Second Degree Murder and Felony Firearm Possession.  He goes to trial.  At voir dire, the jury panel was composed of 60 and 100 individuals, only 3 of whom, at most, were African American.  At that time, African-Americans constituted 7.28% of the County’s jury-eligible population, and 6% of the pool from which potential jurors were drawn.  An all-white jury was selected.  The trial court rejected Smith’s objection to the panel’s racial composition.  The all-white jury convicted Smith of the crimes.  He was sentenced to life in prison.

For those who don’t know, the 6th Amendment gives criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community.  The issue was whether, under the circumstances, the defendant’s right was violated by the all-white jury’s conviction.

The Court reasoned that a defendant raising a violation of the “fair-cross-section” requirement of the Sixth Amendment must establish that any existing underrepresentation was due to “systematic exclusion” of the group in the jury-selection process. Practices, such as excusing people who merely alleged hardship or simply failed to show up for jury service, reliance on mail notices, a failure to follow up on nonresponses, the use of old addresses, and the refusal of police to enforce court orders for the appearance of prospective jurors, are insufficient to establish “systematic exclusion.”  Consequently, the U.S. Supremes upheld Smith’s conviction.

My opinion?  Pollyannaish as it sounds, this opinion shows why it’s SO IMPORTANT for citizens to show up for jury duty.  Juries are the last bastion of objective, impartial justice.  We all experience moments when we are wrongfully accused; not because we intentionally did something wrong, but merely because we look/think/act outside the norms of the majority.

That’s exactly why juries MUST reflect a fair cross section of the community.  That “cross section,’ however, can only happen if YOU – the citizen – do your part and answer the call to serve on a jury.  Your lone perspective adds depth.  Your life experience – which, amazingly, might be similar to the defendant’s/petitioner’s/plaintiff’s – adds insight to their arguments.

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.

 

State v. Eaton: A Defendant’s Sentence Cannot Be Enhanced For Involunatry Acts

sentence enhancements Archives - Oklahoma Justice Reform

In State v. Eaton, the WA Supreme Court decided a defendant must act volitionally – with intent – to put himself within a zone that requires an upward sentencing enhancement.  An enhancement should not apply for drugs the defendant possessed when arrested and brought to jail.

Mr. Eaton was arrested for DUI and taken by police to the Clark County Jail.  At the jail, Eaton was searched by staff who discovered a small bag of methamphetamine taped to his sock.  The State charged Eaton with DUI and Possession of Methamphetamine and sought a sentencing enhancement for possessing a controlled substance in a jail or prison.  A jury convicted Eaton on both charges and found by special verdict that Eaton possessed methamphetamine while in a jail.  The trial court imposed an enhanced sentence.

The WA Supremes overturned the sentencing enhancement.  They reasoned that once Eaton was arrested, he no longer had control over his location.  From the time of arrest, his movement from street to jail became involuntary: involuntary not because he did not wish to enter the jail, but because he was forcibly taken there by State authority. He no longer had the ability to choose his own course of action.  Nor did he have the ability through some other course of action to avoid entering the area that would increase the penalty for the underlying crime.

My opinion?  Again, excellent decision.  It’d be different if Eaton knew he was going to jail and tried sneaking meth within the facility. However, those circumstances did not exist.  He was arrested for DUI  – a different matter altogether – and immediately booked into jail.  He never voluntarily brought the drugs into the jail itself.  He merely happened to possess them when arrested for DUI.

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 Changes Execution Method

The Drugs Used In Execution By Lethal Injection

Washington state has changed its method of execution from a three-drug cocktail to a one-drug system, according to paperwork filed Tuesday with the WA Supreme Court.

The three-drug method uses sodium thiopental, pancuronium bromide and potassium chloride. Only sodium thiopental, followed by a saline flush, is used in the one-drug policy.  In case the first dose does not kill the inmate, an additional 5 grams of sodium thiopental will be made available at the time of execution.  The change in the lethal injection protocol comes despite the fact that a lawsuit challenging the former protocol is before the Washington Supreme Court.  The State moved to dismiss that portion of the lawsuit and go forward with executions.

My opinion?  I’m no proponent of the Death Penalty.  The government should not kill its own citizens.  However, until the Death Penalty is abandoned, it seems the one-drug executions are more appropriate and humane.  Three injections seems cruel, unusual and Draconian.

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.

Break The Law And Your New “Friend” Might Be The FBI

Feds Accused of Withholding Social Media Surveillance Files – Courthouse  News Service

Law enforcement is invading social networking websites. The Feds are on Facebook.  And Myspace, LinkedIn and Twitter, too.

Let’s be frank: it was only a matter a time before the Feds started conducting investigations using social networking sites.  Indeed, I’ve had former clients busted for prostitution because they sell their services on Craigslist, and the police acted as “Johns” to set up a sting.

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.

State v. Hammock: Home-Made Guns Are Still Firearms

Pin on Small homemade wepons + gun stuff

In State v. Hammock, the WA Court of Appeals Division II decided that a hollowed-out bolt, in which a bullet is inserted, and when used with a hammer to strike the bullet,  IS a firearm.

After an extended period of using drugs and arguing with Mr. Ford, defendant Hammock handed his girlfriend, Ms. McKee, a .22-caliber bullet, a hollowed-out bolt with a hexagonal head, and a ball peen hammer, and told her to shoot Ford.  Hammock had previously used the device to discharge a bullet.

Hammock inserted the shell into the head end of the bolt.  McKee placed the  non-head end of the  bolt against Ford’s head, struck the bullet with the ball peen hammer, discharged the bullet into Ford’s head.  Ford did not die immediately.

The following details are gruesome.  About 20 minutes later, Hammock jumped over the bed without warning  and repeatedly hit Ford  in the head  with a hammer.  Ford remained conscious for several more hours.  Later Hammock exited the room and returned with a metal object similar to a meat cleaver and struck Ford in the head two or three times.

Ford remained alive and conscious, so Hammock knotted an extension cord around Ford’s neck and placed a white plastic bag over Ford’s head.  Hammock also struck Ford again with the metal object once or twice.  Ford ultimately died from a gunshot wound to the head, blunt force impacts to the head, and ligature strangulation due to an extension cord knotted around his neck.

The State charged Hammock First Degree Murder, and numerous Drug Offenses.  A forensic scientist with the Washington State Patrol Crime Laboratory testified that the .22-caliber bullet is a “rimfire” cartridge, meaning that its primer, the explosive, is around the rim of the cartridge. The primer ignites the gunpowder that provides the gas that propels the bullet.  The scientist was able to discharge a bullet from the bolt by striking the rim of the cartridge with a ball peen hammer.  The jury found Hammock guilty of all charges, including possession of a deadly weapon.

Court of Appeals reasoned that the bolt, hammer, and bullet, when considered together, constitute an instrument of offensive combat.  Hammock inserted the bullet into the bolt, handed it back to McKee, and told her to shoot Ford.  McKee put the bolt up to Ford’s head, struck it with a hammer, and discharged the bullet into Ford’s head.  Ford died partly from this gunshot wound to the head.

This constitutes an “instrument” used to injure or kill someone, reasoned the Court.  Additionally, the Court held that the bolt system meets the definition of “device” as well under former RCW 9.41.010(1).  Under Webster’s Dictionary, a “device” is “something that is formed or formulated by design and usage.

Consequently, the Court upheld Hammocks guilty verdict.

My opinion?  As I said above, I’m dedicating this post to NRA members, gun enthusiasts, and 2nd Amendment buffs.  Although I’m clearly NOT providing legal advice – I cannot do that over the internet – this bit of public information should put gun enthusiasts on pause.  Home-made guns are still firearms; even if the moving parts are separated from each other.  Period.

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.

State v. Dow: Corpus Delicti vs. RCW 10.58.03

Important Facts about Corpus Delicti

In State v. Dow, the WA Supreme Court held that RCW 10.58.035 does NOT change the corpus delicti rule that the State must prove every element of an alleged crime by evidence independent of the defendant’s statement.

 Defendant Mr. Dow was charged with with first degree child molestation.  The victim was a three year old female, and too young to testify.  Consequently, her statements to others about the alleged offense were inadmissible.  No persons other than Dow and the child were present at the time of the alleged offense.  During a recorded police interview, Dow made statements regarding the events surrounding the alleged molestation.

The trial court found these statements to be exculpatory and not an admission.  The State sought to introduce Dow’s statements as substantive evidence that he committed the crime charged.  Dow moved to exclude these statements, arguing they were inadmissible for lack of  corpus delicti.  The trial court agreed.  Dow’s case was dismissed.  The State appealed.  The case found its way to the Supreme Court.

Some background is necessary: the corpus delicti doctrine generally is a principle that tests the sufficiency or adequacy of evidence, other than a defendant’s confession, to corroborate the confession.  The purpose of the rule is to ensure that other evidence supports the defendant’s statement and satisfies the elements of the crime.  Where no other evidence exists to support the confession, a conviction cannot be supported solely by a confession.  The purpose of the corpus delicti rule is to prevent defendants from being unjustly convicted based on confessions alone.  Historically, courts have grounded the rule in judicial mistrust of confessions.

Along comes RCW 10.58.035. It allows a statement to be admitted into evidence if there is substantial independent evidence establishing the trustworthiness of the statement.   The following factors determine whether the statement is trustworthy:

(a)  Whether there is any evidence corroborating or contradicting the facts set out in the statement, including the elements of the offense;

(b)  The character of the witness reporting the statement and the number of witnesses to the statement;

(c)  Whether a record of the statement was made and the timing of the making of the record in relation to the making of the statement; and/or

(d)  The relationship between the witness and the defendant.

Here, the WA Supremes reasoned that even if the statements are admissible, no other evidence exists to establish the corpus delicti independent of Dow’s statement. Further, corpus delicti cases have always required sufficient evidence independent of a defendant’s confession to support a conviction.  RCW 10.58.035 does nothing to change this requirement. The State concedes it lacked evidence.  Indeed, the only evidence the State purported to have is Dow’s statement, which is insufficient under any standard.

Consequently, the WA Supremes upheld Dow’s dismissal.

My opinion?  I like the decision.  The WA Supremes dutifully followed corpus delicti and held people shouldn’t be charged with crimes unless evidence exists.  I fear, however, that even though the Court did not allow RCW 10.58.035 to swallow the corpus delicti rule, such decisions may come few and farther in between.  The statute was MADE to chip away at corpus delicti.  Period.  Perhaps it didn’t apply to Dow’s case because his statement was the ONLY evidence the State had.  Future defendants in future cases, however, might not be so lucky.

My prediction?  Future courts may find that if a scintilla of evidence beyond the defendant’s statement exists, then the statute kicks into effect and does away with corpus delicti.  Keep your eyes peeled . . .

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 Suffer Cuts To Salaries, Hours

Salt Lake City Council lifts hiring freeze on SLCPD

A citywide hiring freeze has spurred Bellingham police to call on the City Council and the mayor, asking them to replenish the number of officers on duty.  However, it appears Mayor Pike is not as receptive as the Police Guild hopes.

The amount of reported crimes went down 4 percent last year, Pike said. Because the Police Department has 2.5 percent fewer deputies, the overall workload for city police is actually lower now than it was a year ago, he said.

Pike also said the city does have money in reserves, but it would not be prudent for the city to go ahead and spend all of it.

“No, we don’t have the resources to just, on an ad hoc basis, add costs to the city,” Pike said. “There is a process that has been in play for a long time, which the guild is a part of. This is, in my view, an end-run to that process: to get special treatment, which I don’t think is appropriate.”

My opinion?  I’m impressed that Mayor Pike sees the reality of the situation.  Crime is down.  Why hire more police?  There’s plenty of police agencies in Whatcom County.  Let’s not forget, the Sheriff’s Office and the Border Patrol; along with Everson, Ferndale, Sumas, and Blaine Police Departments.

If it ain’t broke, then don’t try to fix it . . .

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

Whatcom County Jail Gets Record Number of Inmates

COVID-19 infections hit record high in California prisons | CalMatters

Whatcom County Jail’s population hit a record high over Presidents Day weekend and since then, law enforcement agencies have been booking fewer people, to ease the crowding.
The jail’s population reached 323 inmates – its operational capacity should be 212 inmates -the weekend of Feb. 13-15, causing the jail to run out of temporary beds and come close to running out of clothes, sheets and other resources. From Feb. 1 to Feb. 16, an average of 26 people were booked into the jail each day.

Bellingham police have been citing and releasing some people arrested on misdemeanor, and booking and then immediately releasing others.  An officer might take some people to jail to have their photos and fingerprints taken, then have the jail release them.

My opinion?  I’ll state the obvious: the criminal justice system in Whatcom County has reached peaked capacity.  Jails are overcrowded.  Trial calendars are filled.   Trust me, I know.

The easy solution?  Hire an additional judge, build additional courts, and build another jail.  Unfortunately, that’s not going to happen any time soon.   Put simply, The County lacks resources to build jails and/or hire more court staff.  This is not due to sloppy spending on the part of the County.  The Whatcom Superior Court has already eliminated numerous services due to the decrease in revenues.  That said, the likelihood of obtaining more revenue to hire another judge and/or construct another jail is slim to none.

The harder solution – and probably the more criticized; yet WORKABLE solution – is for the Prosecutor’s Office to negotiate more cases to a favorable resolution.  They’re a trial-happy bunch, and unnecessarily so.  Not every case must be brought to trial.  Justice happens when all parties leave the courtroom satisfied with the result.

At any rate, overcrowded jails are symptomatic of larger problems.  The County judiciary is burning the candlestick at both ends.  We’re seeing a decrease in judicial revenues and an increase in inmates.  The state of affairs certainly is alarming.  Why now, and why all of the sudden?

A tough nut to crack.

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.

State v. Harris: A Defendant May Argue Gant On Appeal Even Though It Was Not Argued At Trial.

The Courts and the Constitution Arizona v Gant

In State v. Harris, the  WA Court of Appeals held that a defendant who did not bring a suppression motion prior to trial, may assert a claim under Arizona v. Gant  for the first time on appeal.

Defendant Stuart J. Harris, Jr. appealed his conviction for First Degree Unlawful Possession of a Firearm.  He argued  sufficiency of the evidence,  additional evidentiary error, and prosecutorial misconduct.   While this appeal was pending, the United States Supreme Court decided Arizona v. Gant, which deals with the scope of a car search pursuant to the arrest of its driver.  The Court of Appeals Division II allowed the parties to provide supplemental briefs on the Gant issue.

For those who don’t know, Gant rejected the reading of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d (1981), that predominated in the lower courts, namely, that the Fourth Amendment allows a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.

In departing from Belton, the Gant Court held instead that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Gant, 129 S. Ct. at 1723.3

Here, the Court of Appeals reasoned the facts in Gant were similar to those here.  Harris was not within reaching distance of the passenger compartment of the car at the time of its search, and there was no reason to believe that the car contained evidence related to the offense for which he was arrested (driving with a suspended license). Therefore, absent other legal support for the search, the officer’s search of  the car was unlawful.

Furthermore, Gant applies retroactively because “A party should be allowed to take advantage of a decision rendered during the pendency of his case, even if he had not reserved the point decided, if the decision could not have reasonably been anticipated.”  State v. Harris at 6-7, quoting Judge Posner of the Seventh Circuit.

My opinion?  I’m a HUGE fan of the Arizona v. Gant opinion (please see my Dec. 24, 2009 blog), and by extension, I’m a HUGE fan of this opinion. Generally, United States Supreme Court decisions that announce new constitutional rules governing criminal prosecutions apply retroactively to all criminal cases not yet final on appeal.  I’m happy the Court of Appeals stuck to the law; and supported Gant, to boot.

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.

State v. A.N.J: WA Supremes Withdraw Guilty Plea Due To Ineffective Assistance of Counsel

Blog | Speaker Law

In State v. A.N.J., the WA Supreme Court held that Defendant A.N.J’s court appointed counsel was ineffective because counsel failed to do an adequate investigation, failed to consult with experts, failed to fully inform him of the consequences of his plea, and failed to form a confidential relationship with him independent of his parents.

In 2004, when A.N.J. was 12 years old, he pleaded guilty to first degree child molestation.  Almost immediately, he moved to withdraw his plea upon realizing (1) his juvenile sex offense criminal history would remain on his record once he was an adult, (2) that he might have to register as a sex offender for the rest of his life, (3) that he would have to notify his school, and (4) that he would probably be shadowed by an adult while he was at the school.  He argued that under the facts of this case, his plea was not knowing, voluntary and intelligent, and that he should have been allowed to withdraw it.

The court record showed that A.N.J.’s defense counsel spent as little as 55 minutes with A.N.J. before the plea hearing, did no independent investigation, did not carefully review the plea agreement, and consulted with no experts.

Consequently, the WA Supremes reasoned that court appointed counsel’s representation fell below the objective standard guaranteed by the constitution.  A.N.J. was also misled into believing his criminal record of the sex offense could be expunged in the future.

My opinion?  Justice Chamber’s introduction in this opinion says it all:

“While the vast majority of public defenders do sterling and impressive work, in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance.

Public funds for appointed counsel are sometimes woefully inadequate, and public contracts have imposed statistically impossible case loads on public defenders and require that the costs of experts, investigators, and conflict counsel must come out of the defenders’ own already inadequate compensation.”  ~Justice Chambers, State v. A.N.J.

Public defenders have tough jobs.  Period.  Many of my colleagues are public defenders.  Trust me, they’re on the battlefield every day; in the trenches, trying cases to the best of their abilities.  Unfortunately, glutted trial calendars and lack of resources stretch time/energy/resources excruciatingly thin. I only hope this opinion gives all criminal defense attorneys, and not only public defenders, some insights into how to avoid ineffective assistance of counsel.

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.