Tag Archives: Skagit County Criminal Defense Attorney

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

Constitutional Rights, felony, Firearm, Jury Trial, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, United States Supreme Court, Washington Court of Appeals, , ,

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

Constitutional Rights, Ineffective Assistance, Sentencing, Washington Supreme Court, , ,

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.

State v. Erickson: Probation Officers Have Too Much Power

Assault, Bench Warrant, Constitutional Rights, Drug Offenses, law enforcement, misdemeanor, police, Privacy, Probable Cause, Probation, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

NY Probation Violation Hearing Lawyer - E. Stewart Jones Hacker Murhpy

In State v. Erickson, the WA Supreme Court decided a court may issue a bench warrant without a formal finding of probable cause on the underlying allegations after the defendant fails to appear at a probation violation hearing.

Anthony Erickson received probation after he was convicted of fourth degree assault.  His probation officer alleged Erickson violated the terms of his probation.  Erickson was issued a summons ordering him to appear at a probation violation hearing.  When Erickson failed to appear, the court issued a bench warrant for his arrest.  Erickson was subsequently arrested.  A strip search at the jail revealed he possessed cocaine.

The WA Supremes reasoned that because Erickson failed to notify the court of any change of address, the judge in the lower court had a “well-founded suspicion” that Erickson had violated that condition of his release.  Consequently, the judge had authority to issue the bench warrant based on that alone.

My opinion?  It’s unbelievable that the allegations – and that’s all they are, mere allegations – of a probation officer are upheld as stone-cold truth by judges if a defendant fails to show up for a hearing.  It’s unbelievable that judges can now issue bench warrants because a defendant failed to notify their probation officer of an address change.  It’s unbelievable that defendants can be taken into custody, strip searched, and arrested because they failed to notify their probation officer of an address change.

This case highlights how unfairly the gears of the criminal justice system grind away at individual rights.  Let’s hope this gets appealed to a higher 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.

State v. Drum: Good Decision Regarding Stipulated Evidence At Drug Court Trials

Burglary, Drug Court, Evidence, felony, Washington Supreme Court, , ,

What's good 'evidence-based' practice for classrooms? We asked the teachers, here's what they said | EduResearch Matters

In State v. Drum, the WA Supreme Court held a trial court may find a defendant NOT GUILTY if it determines that the stipulated evidence does not establish all of the elements of a crime beyond all reasonable doubt.

Patrick Drum entered into a contract to participate in drug court, which provided for the eventual dismissal of a Residential Burglary charge if  Drum  successfully completed a substance abuse treatment program.  The contract required Drum to stipulate that the facts set forth in the investigation reports, witness statements, and laboratory tests were true and sufficient to support a finding of guilt.

After waiting in custody for 42 days for a bed to open up at a treatment facility, Drum requested to leave the drug court program.  He had a bench trial.  The judge found him guilty based on the evidence that was stipulated when Mr. Drum entered the contract.

Here, the WA Supremes reasoned that by entering a drug court contract, a defendant is NOT giving up his right to an independent finding of guilt beyond a reasonable doubt.  A trial court still has the authority to find the defendant not guilty if it determines that the stipulated evidence does not establish all elements of the crime beyond a reasonable doubt.  Finally, if a trial court independently reviews the evidence and makes findings, a stipulated drug court agreement is NOT the equivalent of a guilty plea.

My opinion?  EXCELLENT DECISION.

For those who don’t know, Drug Courts are programs that divert nonviolent, drug-related offenders into intensive treatment programs with the  goal of encouraging offenders  into a productive, drug-free lifestyle.  In general, offenders participate in required drug treatment and counseling, find work, meet with corrections officers, attend regular visits with a judge, and meet any other conditions set by the court.  Personal involvement by the drug court judge, prosecutor, defense attorney, and treatment providers is cited as the key to the success of drug courts.

Drug Court is a privilege.  It’s difficult to get into.  A defendant must be evaluated and found a good candidate by the evaluator, prosecutor and judge.  To gain entry, defendant must also stipulate – essentially, agree – to the truth of the evidence alleged against them in the police reports.  Worst-case scenario; if defendants either quit or are kicked out of Drug Court, then they have already waived their right to a jury trial, waived their right to challenge the evidence through direct/cross examination of witnesses, and essentially waived their presumption of innocence.  Ouch.

State v. Drum gives judges broad discretion to review the truth and veracity of the “stipulated evidence.”  In other words, judges may consider whether the State can prove their case beyond a reasonable doubt.  Best-case scenario for a defendant, it appears they have a chance to get a case acquitted by a judge upon leaving Drug Court.

Practically speaking, the likelihood of an acquittal is slim.  Drug Courts are highly political venues.   Indeed, look at how the WA Supreme Justices voted, it was a SLIM 5-4 majority.

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 State Felons Should Have Voting Rights, Federal Court Rules

Constitutional Rights, felony, Race & Law, Theft, , ,

Opinion | Restoring Voting Rights for Felons - The New York Times

Here’s some good news.  On Martin Luther King Jr. day, no less.

A federal appeals court tossed out Washington’s law banning incarcerated felons from voting, finding the state’s criminal-justice system is “infected” with racial discrimination.

Muhammad Shabazz Farrakhan was serving a three-year sentence at the Washington State Penitentiary in Walla Walla for a series of felony-theft convictions. Ultimately, five other inmates, all members of racial minority groups, joined as plaintiffs.

The plaintiffs’ brought studies and social-science data which showed that minorities in Washington are stopped, arrested and convicted in such disproportionate rates that the ban on voting by incarcerated felons is inherently discriminatory.

The federal court agreed.  The decision, written by Judge A. Wallace Tashima, said the studies “speak to a durable, sustained indifference in treatment faced by minorities in Washington’s criminal justice system — systemic disparities which cannot be explained by ‘factors independent of race.’ ”

Blacks are 70 percent more likely — and Latinos and Native Americans 50 percent more likely — than whites to be searched in traffic stops.  The research also showed that blacks are nine times more likely to be incarcerated than whites, despite the fact that the ratio of arrests for violent crime among blacks and whites is less than four-to-one. One result of that: 25 percent of black men in Washington are disenfranchised from voting.

My opinion?  I’m overjoyed with the decision.  Granted, convicted felons should face appropriate consequences if found guilty of committing crimes.  However, the Washington law stripping them of voting rights was simply Draconian.

Eventually, the convicts will serve their sentence and return to society.  Studies show that voting by incarcerated felons is the best tool to re-integrate them into society.  Why deny them the right to vote?  What good does that do?

The decision is a step in the right direction.  Let them vote.

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.

Program That Gives Suspended Drivers a Second Chance Finds Success

Department of Licensing, DUI, Jail, misdemeanor, Uncategorized, , ,

13 Ways You Could Lose Your License Without Getting Behind the Wheel - ValuePenguin

Good news!  Suspended drivers can earn a fresh start, and taxpayers save money in the bargain.

A diversion program offered to people caught driving with a suspended license is saving taxpayers thousands of dollars and helping people earn back their driver’s licenses, according to officials with the Snohomish County Prosecuting Attorney’s Office.

It works like this: eligible defendants are sent a letter advising them that they have three months to get their driver’s license reinstated by the state Department of Licensing. If they do, the prosecutor’s office agrees not to file the misdemeanor charge.

The program is saving the costs associated with prosecuting the cases.  It also generates revenue.  According to the article, people are paying thousands of dollars in fines to get their licenses back.  Indeed, one man paid more than $10,000 in back child support to get his driver’s license reinstated.

My Opinion?  It’s about time.  Driving While License Suspended (DWLS) charges are a patent WASTE OF TIME to charge.  Yes, DWLS charges are a crime.  Yes, defendants risk serving jail time if their criminal history substantiates it.  But c’mon . . . do we really want to incarcerate people for this?

In my experience, the only reasons why people’s licenses get suspended is because they failed to pay traffic tickets, owe child support, were caught driving without insurance or haven’t paid costs associated with a traffic accident.  Also, it costs us taxpayers approximately $70 a day to house inmates in county jail.  That cost goes up exponentially when the prosecutor’s office gets involved.  Again, WASTE OF TIME and WASTE OF MONEY.

Congrats to Snohomish County.  Perhaps other counties will follow suit.

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. Pugh: WA Supremes Admit “Excited Utterance” Hearsay Evidence of 911 Call; Disregard State v. Crawford

911 Call, Assault, Constitutional Rights, Domestic Violence, Evidence, felony, Jury Trial, Washington Supreme Court, , ,

What is EXCITED UTTERANCE? What does EXCITED UTTERANCE mean? EXCITED UTTERANCE meaning & explanation - YouTube

In State v. Pugh, the WA Supreme Court admitted “Excited Utterance” hearsay evidence of a 911 call, thus disregarding State v. Crawford.

Defendant Timothy Pugh and his wife Bridgette are married.  They had problems.  In November 2004, she obtains a no-contact order (NCO) against him.  On March 21, 2005, and in violation of the NCO, the Pughs were together at a friend’s apartment.  At 3:13 a.m., she calls 911 and states, “My husband was beating me up really bad.”

She provided his description.  When the operator asked her whether he was still there, Mrs. Pugh said, “He’s just outside.” She again reported being beaten, but this time stated it in the present sense.  She also said she needed an ambulance.  The call terminated when police officers arrived.  Mrs. Pugh had a bruised face and a chipped tooth.  The officers soon arrested Mr. Pugh in the parking lot outside the apartment where Bridgette was.

Before trial, the State delivered a subpoena to Mrs. Pugh.  However she refused to arrive and/or testify at trial.  Despite her decision, and in clear violation of State v. Crawford (2004 case where WA Supremes upheld the Confrontation Clause and dismissed a case where the State’s victim/witness refused to testify) , the trial court admitted her 911 call as evidence.  Pugh was convicted of felony violation of the court order, domestic violence.

 The WA Supremes held Mrs. Pugh’s statements to the 911 operator were nontestimonial, and therefore admission of a recording of the 911 call at Mr. Pugh’s trial did not violate his right to confrontation under the Sixth Amendment.  They reasoned that her statements qualify as res gestae under the res gestae doctrine as it applied at the time the state constitution was adopted.

They further argued that statements of this type do not implicate the state confrontation clause.  Because the statements are nontestimonial and do not implicate article I, section 22, admission of the 911 recording violated neither the federal nor the state confrontation clause.

My opinion?  I hold the same disdain as Justice Sanders’ dissenting opinion.  Article I, Section 22 of the WA Constitution states, “In criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face . . .”  This is the essence of the Confrontation Clause.

And, to quote Justice Sanders, “What is there about face to face that the majority opinion does not understand?”  Crawford applies – and cases get dismissed – if a victim refuses to testify.  Period.  Here, the victim refused to testify.  Nevertheless, and in total violation of Crawford, the majority pulls out some archaic res gestae analysis, breathes life into it, and totally stomps the heck out of Crawford.

 Unbelievable.

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 Statistics: 2009

Washington Supreme Court, , ,

Statistics Education Resources for Teachers and Students from the ASA | Institute of Competition Sciences

Veeery interesting information!

David Reitz, who co-manages an incredibly impressive blog of the Washington Supreme Court, tracked the opinions and votes of each WA Supreme Court justice and provided a spreadsheet with case-by-case breakouts.

The Supreme Court Washington Blog provides news, information, and analysis of the cases before the Supreme Court of Washington.  I consider them an authority on the subject.  Here’s some highlights of the 2009 statistics:

* Soon-to-be Chief Justice Barbara Madsen was the most prolific writer this year.  She authored 18 majority opinions and 39 total opinions;

* Justice Richard Sanders is the most frequent dissenter, writing nearly three times as many dissents as any other justice;

* The justices with the highest rates of agreement were Madsen and Fairhurst (88%);

* The justices with the lowest rates of agreement were Sanders and Fairhurst (66%);

* Unlike the U.S. Supreme Court, which sees many narrow 5-4 decisions, the state Supreme Court enjoys a number of strong majority opinions, with nearly half of its rulings unanimous or 9-0 in the outcome.

This information is valuable.  Good criminal defense attorneys defend their clients’ constitutional rights at every opportunity.  They achieve this goal by (1) educating themselves on new court opinions, and (2) applying these opinions to pretrial motions which suppress illegally obtained evidence or dismiss the State’s case altogether.

A major component of educating oneself involves watching the activities of the State Supreme Court.  In short, attorneys can predict how a certain justice will rule on future cases based on how they ruled in past cases (I’m being flippant, but those who play odds on roulette tables understand what I’m saying).  Additionally, attorneys can also predict how the State Supremes address controversial opinions handed down from the United States Supreme Court.

For example, Arizona v. Gant was a recent controversial opinion handed down by the United States Supreme Court.  Gant is extremely defendant-friendly: the U.S. Supremes ruled that, depending on the circumstances, a vehicle search is unlawful when a defendant is merely arrested for a traffic violation.  Gant essentially put a stop to unlawful pretextual searches by police.  Beautiful.

Recently, in State v. Bueln-Valdez, the WA Supremes supported Gant as good Washington law.  (I excitedly blogged this last month).  Us defense attorneys  who watch the WA Supremes were ecstatic.  We saw State v. Bueln-Valdez come down the pike and hoped/believed the WA Supremes would use it as a vehicle (no pun intended) to embrace Gant.  As a result, our pretrial motions to suppress unlawfully obtained evidence are now that much stronger because trial judges must follow the opinions of higher judical authorities when ruling on pretrial motions.

Again, these statistics help.  Major kudos goes out to David Reitz, Jonathan Bechtle, and Trent England for their blogging efforts.  Thank you, gentlemen. 🙂

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.

American Law Institute Abandons the Death Penalty

Death Penalty, Studies, , ,

Oregon's Death Penalty Is Almost Nonexistent—So Why Can't We Get Rid of It? - News - Portland Mercury

Last fall, the American Law Institute (ALI), which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced the Death Penalty a failure and walked away from it.

The ALI is made up of about 4,000 judges, lawyers and law professors across the country. It synthesizes and shapes the law in restatements and model codes.  Consequently, the ALI provides structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

Here, the ALI’s decision to abandon the death penalty is INCREDIBLY important because they were the only intellectually respectable organization which supported the death penalty system in the United States.  In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states.

Their reasons for abandoning?  A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

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

Proposed Law Changes To Prevent Future Police Murders

Accomplice, Constitutional Rights, felony, Firearm, Homicide & Manslaughter, law enforcement, Legislation, police, Violent Crime, Washington State Patrol, , ,

2009 Lakewood shooting - Wikipedia

In the wake of the Lakewood police officer shooting tragedy, Representative Mike Hope (R-Lake Stevens) is drafting legislation to prevent serial offenders like Maurice Clemmons from having an opportunity to harm others. Hope, a Seattle police officer who works patrol when not in session, said this was at the top of his legislative agenda.

The three-part legislation will include two proposed changes to the Washington State Constitution and a sentencing enhancement, proposals he says would have prevented the murders of four Lakewood police officers Nov. 29.

The first bill would remove bail opportunities for dangerous individuals who have committed two felonies and are charged with a possible “third strike” felony offense.   The second bill would prevent defendants from receiving bail if they commit another violent crime in Washington and are proven dangerous to the public.  The third bill would require a sentencing enhancement against those who aid and abet criminals who are not bailable.

A change to the state constitution requires a two-thirds approval in both the House and the Senate and simple majority approval from voters.

My opinion?  Like everyone, I’m deeply saddened with the deaths of the four Lakewood Officers.  Their murders were completely meaningless and senseless.  I’m also disturbed the defendant’s friends/relatives assisted him.

That said, I question whether altering the WA Constitution and chipping away at a defendant’s rights is the answer to preventing similar murders from happening in the future.  I’m a staunch defender of constitutional rights.  Indeed, if I were to wrap an American flag around myself and proclaim my patriotism out loud, then THAT is the platform I stand upon: vigilant, aggressive protection of individual rights against a tyrannical government.

The proposed legislation is strong medicine.  Too strong.  At worst, defendants can be held without bail.  This is disturbing.  Under court rules, judges may hold defendants without bail only if the charge they face is a capital charge; like murder.  Additionally, judges must impose the least restrictive release alternatives to defendants.

Disallowing bail and indefinitely holding defendants in jail laughs in the face of “least restrictive alternative.” Finally, holding defendants without bail leads to “plea tenderization” by cutting defendants off from work and family.  As a result, defendants may plead guilty not because they committed a crime; but simply to get out of jail and move on with their lives.  That’s an utterly inhumane result if the defendant is innocent of the charges.

We’ll see what happens.  The bill needs extremely strong support.

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.