Tag Archives: Skagit County Criminal Defense Attorney

State v. Pinson: When Prosecutors Violate a Defendant’s 5th Amendment Right

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, felony, Jail, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Search and Seizure, Self-Incrimination, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Forcing iPhone unlock violates Fifth Amendment, says Court of Appeals – Naked Security

In State v. Pinson, the WA Court of Appeals held that a Prosecutor violated a defendant’s 5th Amendment rights against self-incrimination by arguing that the defendant was guilty because he chose to not talk to police when arrested.

Mason County Sheriff Deputy Nault responded to a reported domestic violence call. He contacted Stacey Campbell, who was in a parking lot across the street from her home. She said the defendant Jarad Pinson, her boyfriend, violently assaulted her. Deputy Nault saw red marks on her neck. Deputy Nault went into the home and arrested Mr. Pinson. During the arrest, Mr. Pinson was cooperative. He said he was drinking with his friends. When asked by officers if the situation became violent with Ms. Campbell, however, Mr. Pinson did not respond. he was arrested for Assault Second Degree Domestic Violence.

At trial, the judge granted the defense attorney’s motion in limine to suppress the Prosecutor from asking whether the fight was physical. However, defense counsel asked that question during cross-examination. Because of this, the judge ruled that Pinson’s defense attorney “opened the door” and gave the Prosecutor opportunity to cross examine the defendant on whether the fight was physical.

In closing argument, the Prosecutor said Mr. Pinson’s silence during arrest was substantive evidence of guilt. Although Ms. Campbell recanted her earlier accusations of assault while testifying on the witness stand, the jury nevertheless returned a guilty verdict on the Assault Second Degree charges. The case went up on appeal.

The law on prosecutorial misconduct is straightforward. To prevail on a claim of prosecutorial misconduct, a defendant must show that “in the context of the records and the circumstances of trial, the prosecutor’s conduct was both improper and prejudicial. However, when the defendant fails to object to the challenged portions of the prosecutor’s argument, he is deemed to have waived any error unless the prosecutor’s conduct was so flagrant and ill intentioned that an instruction could not “cure” the resulting prejudice to the defendant.

The 5th Amendment in the U.S Constitution states, “no person . . . shall be compelled in any criminal case to be a witness against himself.” Similarly, Article I, section 9 of the WA State Constitution follows this language. Both Constitutions guarantee a defendant the right to be free from self-incrimination, including the right silence. A defendant has the right to remain silent both prearrest and post-arrest; i.e., both before and after a defendant is given Miranda warnings.

 Here, the Court of Appeals held that the Prosecutor’s statement was improper because in violated Mr. Pinson’s 5th Amendment right against self-incrimination. More specifically, it was improper for the State to make closing arguments that infer guilt from the defendant’s silence. Even though defense counsel did not object, his failure to object did not waive the claim of prosecutorial misconduct because the conduct was so flagrant and ill-intentioned that an instruction would not have cured the prejudice.

The case was reversed and remanded for a new trial.

My opinion? Great decision. It’s a long-standing, basic principle that Prosecutors cannot infer a defendant’s silence as evidence of guilt. I’m pleased the Court acknowledged this basic principle.

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. Foster: When Detainments for “Officer Safety” Violate People’s Rights.

Burglary, Constitutional Rights, Drug Offenses, felony, law enforcement, police, Search and Seizure, Washington Court of Appeals, Washington State Patrol, , ,

Police Officers Showing A Safety First Message Board Royalty Free Cliparts, Vectors, And Stock Illustration. Image 64115849.

In State v. Foster, the WA Court of Appeals held that a police officer cannot seize someone for “officer safety” reasons and keep them handcuffed indefinitely. Here, the police officer’s decision to keep the defendant handcuffed indefinitely instead of checking for weapons turned an otherwise lawful seizure into an unlawful one.

The facts were such that defendant Samuel Foster was accused of Burglary; more specifically, stealing a tent from the home of the alleged victim. In an effort to gain more information about the stolen tent, Officer Anderson made contact with Mr. Foster. The officer became concerned for her safety because Mr. Foster refused to take his hand out of his pocket.

Officer Anderson grabbed Mr. Foster’s hand and placed him in handcuffs as a safety precaution. Sergeant Renschler happened upon the scene. He questioned Mr. Foster – who was still in handcuffs – about drugs. Sergeant Renschler searched Mr. Foster and found a small bag of meth inside a cigaratte container in Mr. Foster’s pocket. Naturally, Mr. Foster was charged with Unlawful Possession of Meth.

At trial, the judge denied Mr. Foster’s Motion to Suppress based on an unlawful search and seizure. In short, Mr. Foster argued the seizure under Terry v. Ohio was unlawful because the officer exceeded what was supposed to be a brief seizure for officer safety. The judge found Mr. Foster guilty of Possession of Meth. The case went up on appeal to Division III of the WA Court of Appeals.

The Court of Appeals reasoned that police can conduct a Terry investigative stop if they don’t have a warrant. A Terry stop allows officers to briefly seize a person in specific and articulable facts, in light of the officer’s training and experience, if the facts give rise to a reasonable suspicion that the person was engaged in unlawful activity. In evaluating the lawfulness of a Terry stop, the court must inquire whether the temporary seizure was justified at its inception, and whether the stop was reasonably related in scope to the circumstances which justified the initial interference.

Here, the basis for the stop was insufficient. Simply because a person is in a high crime area does not establish a reasonable, articulable suspicion that the person is engaging in criminal activity. Also, the simple fact that Mr. Foster had his hand in his pocket when approached by Officer Anderson does not support a reasonable, articulable suspicion that Mr. Foster was engaged in criminal activity. Consequently, the Court of Appeals ruled the seizure of Mr. Foster under these circumstances was not a valid Terry stop.

The court reasoned that the true nature of the stop was for officer safety. Still, however, Officer Anderson did NOT frisk Mr. Foster for weapons. The court said, ” . . . because the only legal basis to seize Mr. Foster was for officer safety, we are constrained to hold that the officer’s decision to forego frisking Mr. Foster amounts to continued detainment without a legal basis.”

The court concluded that Mr. Foster’s consent to search was obtained by exploitations of his prior illegal seizure, and as a result, the evidence obtained as a result of his consent to search must be suppressed.

Good decision.

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. McDonald: Prior Misdemeanor DV Convictions Count Toward Pointable “Offender Score” in Present Felony DV Charges & Convictions.

Assault, Domestic Violence, felony, Jail, law enforcement, Unlawful Imprisonment, Washington Court of Appeals, , ,

Co-Parenting with a No-Contact Order | Blog | Talking Parents

In State v. McDonald The Court ruled that violations of a Domestic Violence No-Contact Order are included in an offender score for felony DV convictions.

In this case, the defendant Christopher McDonald was charged with Assault of his girlfriend Julianne Vanas  during a car ride. The court entered No-contact Orders prohibiting contact between the defendant and his girlfriend. The defendant contacted Vanas via phone numerous times while he was in custody. The jail recorded the phone calls. At one point, the defendant told Vanas she needed to be persistent about calling the Prosecutor and saying she would not follow through with the charges.

At trial, the defendant was convicted of Felony Tampering With a Witness and six gross misdemeanor violations of a No-Contact Order. Regarding the charge of Assault in the Second Degree, the jury returned a guilty verdict on the lesser offense of Assault in the Fourth Degree, also a gross misdemeanor. By special verdicts, the jury found each count was domestic violence. The jury returned not guilty verdicts on Unlawful Imprisonment and Assault Fourth Degree.

At sentencing, the court calculated McDonald’s offender score as “7” based on prior convictions. Because McDonald’s current conviction was a domestic violence offense, the court added 1 additional point for each of the current domestic violence gross misdemeanors, yielding a total offender score of 14 points (this is HIGH). The court sentenced McDonald to 51 months prison for Tampering With a Witness and imposed consecutive sentences for the Assault Fourth Degree and No-Contact Order convictions. The defendant appealed, saying the trial court miscalculated.

The Court of Appeals upheld the trial court’s calculations of the defendant’s felony score pursuant to RCW 9.94A.525(21).

For those who don’t know, RCW 9.94A.525 provides: “If the present conviction is for a felony domestic violence offense where domestic violence as defined in RCW 9.94A.030 was plead and proven . . . count points as follows: (c) Count one point for each prior conviction for a repetitive domestic violence offense as defined in RCW 9.94A.030, where domestic violence as defined in RCW 9.94A.030, was plead and proven after August 1, 2011.”

Here, the defendant argued (1) the statute does not apply, (2) the court gave erroneous jury instructions, (3) he was given ineffective assistance of counsel, and (4) the trial court improperly included his six current convictions for violating a domestic violence No-Contact order in calculating his offender score for Tampering With a Witness – a domestic violence conviction.

The court rejected the defendant’s arguments. It reviewed the legislative intent of the statute from the plain language enacted by the legislature, considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, and the statutory scheme as a whole. The Court also stated, “We must avoid constructions that yield unlikely, strange or absurd consequences.” And here, apparently the defendant’s interpretation of the law was unpersuasive.

My opinion?  . . . it doesn’t seem fair. Yes, domestic violence is an awful situation. It has horrible effects on people’s lives, including the families and children of those involved. Still, it doesn’t seem fair or equitable that a person with minor domestic violence convictions have those convictions count toward a felony score.

Let’s assume these “minor convictions” for domestic violence included a Malicious Mischief Third Degree conviction for breaking a vase while arguing with a girlfriend, or a minor Assault Fourth Degree domestic violence conviction involving a “push & shove” with no injuries,  mutual combat and drugs/alcohol ingested by the defendant and victim prior to the argument.

It seems over-the-top that these types of domestic violence convictions can count toward a felony offender score and expose a defendant to substantially more months, if not years, in prison should they face a pending felony domestic violence charge.  This type of math inevitably kills negotiations between defendants and prosecutors. It forces defendants to go to trial. Is that justice?

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. Brock: The “Time for Arrest” Doctrine

Constitutional Rights, felony, Jail, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, , ,

Should school officials be allowed to search students? | Debate.org

In State v. Brock, the WA Court of Appeals held that police officers cannot search someone’s backpack and arrest them for Drug Offenses 10 minutes after contacting a suspect on a Terry stop.

“NO,” said the Court of Appeals in a recent decision.  the facts were such that during a Terry stop, an officer separated Mr. Brock from his backpack. The officer subsequently arrested Brock and searched his backpack, but not until nearly 10 minutes after separating Brock from the bag. Officer Olson told Brock that he was not under arrest. Officer Olson asked Brock to put down his backpack, and Brock complied.

Officer Olson did not find any weapons or any other items during his pat down of Brock. He did not pat down or search the backpack at that time. At trial, the trial court denied Brock’s motion to suppress, finding that this was a valid search incident to arrest under article I, section 7 of the Washington Constitution. However, the Court of Appeals reversed the decision.

Some explanation is necessary. A “Terry stop” is a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest. The name derives from a famous United States Supreme Court decision titled, Terry v. Ohio.

Also, under the “time of arrest” rule, an officer may search personal articles in an arrestee’s actual and exclusive possession at or immediately preceding the time of arrest.

Here, the search of the defendant’s bag did not happen immediately after he was arrested. Officer Olson searched the bag roughly 10 minutes after seizing it from Brock. The bag was secured in Officer Olson’s truck from the time of seizure through the time of the search. Brock was 12 to 15 feet away from the vehicle and the backpack at the time of arrest and during the search of the backpack.

Brock had actual possession of the backpack when Officer Olson initiated the Terry stop and when he seized it. However, Brock did not have actual possession of the backpack at the time of his arrest. Brock’s backpack was neither on his person nor within his area of control at the time of his arrest. While Officer Olson had probable cause to arrest Brock when he seized the backpack, it is the arrest itself—not probable cause—that constitutes the necessary authority of law to search under article I, section 7.

Therefore, to find that this was a valid search incident to arrest, the Court said it must be convinced that, for the purposes of what is in an arrestee’s possession, “immediately prior to arrest” includes either the time between a valid Terry stop and the actual resulting arrest or the time between seizure of the backpack during the Terry stop and the resulting arrest. The Court concluded in saying that Washington Supreme Court’s opinions have not gone this far, and “We decline to do so here.”

My opinion? Good decision. It’s pleasing to know our courts are upholding the WA Constitution and following the stringent search and seizure caselaw. Kudos.

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. Saggers: When Officers Exceed the Scope of Searches Under Terry v. Ohio

911 Call, Assault, Constitutional Rights, felony, Firearm, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

Terry V. Ohio (@ohio_terry) | Twitter

In State v. Saggers, the WQA Court of Appeals held that police officers exceed the scope of a Terry Stop when  an informant’s tip is questionably (un)reliable and the exigency of the alleged serious offense has dissipated.

Police arrived at the home of defendant Andrew Saggers because a 911 call indicated an altercation occurred outside his home involving a shotgun. The 911 call was placed from a payphone. Although the caller provided his name, he was unknown to the police. When police went to the payphone, the caller was gone and the phone was hanging from the cord. The police contacted Mr. Saggers.

Although the present situation was neither dangerous nor life-threatening, the police inquired whether Mr. Saggers had a shotgun in the house. He admitted, “Yes.” The police searched his home and found the gun. Mr. Saggers was subsequently charged with Unlawful Possession of a Firearm. At trial, he was found guilty of the charges. The case went up on appeal.

The Court of Appeals held the police officers exceeded the scope of a search under Terry v. Ohio because the informant tip was unreliable and the emergency of any life-threatening situation was already passed. For those who don’t know, Terry v. Ohio is a landmark decision by the U.S. Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

Here, however, the Court of Appeals ruled that although it is understandable that officers faced with a 911 call like this one would rightfully pursue an investigation, the 911 Call itself was unreliable. Additionally, the danger had already passed by the time officers arrived at Sagger’s house. Consequently, the officer exceeded the scope of a valid search under Terry v. Ohio. Based on these findings, the Court of Appeals reversed Saggers’ conviction.

Good opinion.

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.

DUI Patrols To Run Through Sept. 1 in Whatcom County

Bellingham, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, misdemeanor, police, Washington State Patrol, , ,

Orange County conducts DUI patrol during holiday weekend

They’re back.

According to the Bellingham Herald, people out partaking in recently legalized marijuana or drinking at end-of-summer barbecues should plan a safe way to get home, as emphasis patrols are looking for intoxicated drivers in Whatcom and Skagit counties.

Officers from local police departments, sheriff’s deputies from Whatcom and Skagit counties and Washington State Patrol troopers will have extra patrols to catch drivers under the influence as part of the Drive Sober or Get Pulled Over campaign. The emphasis patrols will run through Sept. 1st.

“Specifically, we want people to know that marijuana doubles the risk of a fatal crash,” Traffic Safety Commission Director Darrin Grondel said in a news release. “With new retail marijuana stores in the mix, we want to remind the public that prescription and over-the-counter drugs, as well as illegal and recreational drugs, can impair driving ability.”

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. Martines: More Good Caselaw on Blood Tests Taken After DUI Arrests

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

Both cops, drivers have rights at checkpoints | Local News | scnow.com

In State v. Martines, the WA Court of Appeals held that after police investigate and arrest a suspect for suspicion of DUI, the State may not conduct tests on lawfully procured blood samples without first obtaining a warrant that authorizes testing and specifying the types of evidence for which the sample may be tested.

The defendant was seen driving his SUV erratically. He veered into another car, careened across the highway, bounced off the barrier, and rolled over. A Washington State Trooper arrived and took Mr. Martines into custody. Martines smelled of intoxicants, had bloodshot watery eyes, and stumbled while walking.

Trooper Tardiff sought a warrant to extract blood samples from Martines. His affidavit of probable cause stated that a blood sample “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.” He obtained a warrant that authorized a competent health care authority to extract a blood sample and ensure its safekeeping. The warrant did not say anything about testing the blood sample.

Martines’ blood was taken at a local hospital. Then it was tested for the presence of drugs and alcohol. The test results indicated that Martines had a blood alcohol level of .121 within an hour after the accident, and that the drug diazepam (Valium) was also present. Martines had a prior conviction for vehicular assault while driving under the influence. The State charged him with Felony DUI.

The trial court denied Martines’ motion to suppress. He was found guilty at trial. The case went up on appeal. The primary issue on appeal was that testing a blood sample for any purpose is a search for which a search warrant is required. Because the warrant authorizing the extraction of blood did not specifically authorize blood testing of any kind, Martines argued that the results should have been suppressed as the fruit of an illegal search.

The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another:

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

In short, the court held that extracting someone’s blood is a first search, and testing the blood is a second search. The first search – the initial extraction – is totally different than the second search, which is analyzing the blood. Because the second search is so intrusive (blood contains someone’s personal DNA code, pregnancy results, information on diseases, etc.), a second warrant is needed. Consequently, the State may NOT test blood samples without first obtaining a warrant that authorizes testing. The warrant must specifically state the types of evidence they’re looking for.

My opinion? State v. Martines is an interesting decision. I admire the Court of Appeals for making a decision which is consistent with Missouri v. McNeely (discussed in another blog) and going one step further favoring a defendant’s constitutional rights under the 4th Amendment.

The opinion prevents police officers from getting a boilerplate search warrant and going on fishing expeditions when they pull people over on suspicion of DUI. The officers must be trained to determine what exactly they’re looking for; be it drugs, alcohol or both. Saying someone has bloodshot/watery eyes, slurred speech and smells of intoxicants does not, by itself, cut it anymore.

Good job, Court of Appeals. I’m impressed.

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. McNeely: U.S. Supreme Court Says Blood Draws Require a Warrant

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Exigent Circumstances, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Uncategorized, United States Supreme Court, Washington State Patrol, , ,

Harmless Error Blog: Missouri v. McNeely: Trouble for Implied Consent Laws?

In Missouri v. McNeely, the United States Supreme Court held that police officers investigating DUI must obtain search warrants for blood draws if emergency circumstances – in legal language, exigent circumstances – do not exist.

The issue decided by the U.S. Supreme Court was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for blood testing in all drunk-driving cases.

The facts were such that the defendant McNeely was stopped by Missouri police for speeding and crossing the centerline. After declining to take a breath test to measure his blood and alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing.

The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a blood sample anyway. McNeely’s BAC sample was well above the legal limit. He was charged with Driving While Intoxicated (DWI).

The U.S. Supreme Court held that rather than applying a blanket per se exigency due to the dissipation of BAC in a person’s body, an exigency must also be based upon “special facts” under a case-by-case analysis.

The Supremes reviewed prior caselaw on this subject. In State v. McNeely, the Court pointed out that a diminishing BAC result upon the passage of time that happens during a DUI investigation is only one factor that must be considered in determining whether a warrant is required.

The Court in McNeely further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. In other words, a warrantless blood draw can still be conducted provided there are other factors articulated by the officer.

My opinion? McNeely is a good, straightforward decision. In short, McNeely holds that when a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained. If an officer cannot get a search warrant in a reasonable time, the officer should explain in great detail why a search warrant could not be obtained.

The officer must be able to articulate what factors were present that created an exigent circumstance. Also, and importantly, “exigent circumstance” cannot be a result of the officer’s conduct. There must be objective, independent facts articulating why exigent circumstances exist to get a warrant.

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.

Unlawful Frisking Violates Constitutional Rights

Constitutional Rights, Drug Offenses, felony, Firearm, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, Washington Supreme Court, , ,

Austin PD defends officer who stopped and frisked woman in video

Good case. In State v. Russell, the WA Supreme Court held that the warrantless search of a small container found on the defendant’s body exceeded the proper scope of a pat-down search under the guise of a “protective frisk for weapons” during a Terry Stop.

The defendant Mr. Russell was stopped for violating several minor traffic laws. The officer recognized Russell from a prior stop. Although the Mr. Russell told officers he was not armed, he did, in fact, have a small pistol in his pocket. The officer frisked Mr. Russell for weapons. The officer felt a small box in Russell’s pants. The box was did not weigh any significant amount, and the officer had no idea whether the box contained a weapon. The officer opened the box. It contained a syringe filled with methamphetamine. The defendant was arrested for Possession of Meth.

The trial court granted Mr. Russell’s motion to suppress the evidence and dismiss the case. However, the WA Court of Appeals reversed the trial court’s decision on appeal. Eventually, the case found its way to the WA Supreme Court.

The WA Supreme Court ruled that although the initial protective frisk was permissible, the officer violated Russell’s constitutional rights when he removed a small container from his pocket and searched it without a warrant. The officer admitted that the container’s contents weighed only a fraction of what a pistol weighs. Because the officer did not have a reasonable belief that the container housed a gun, the warrantless search was not justified.

Furthermore, the Court reasoned that any threat to the officer’s safety ended when he took control of the container. He did not have authority to search it while investigating traffic infractions. Finally, the WA Supreme Court  held that the search was not justified on the basis of consent because the State did not show that Russell consented to the search. For these reasons, the WA Supremes reversed the Court of Appeals.

My opinion? Great decision. Under the law, officers can only search for “hard and sharp” objects which might be used as weapons. Anything else they find is “fruit of the poisonous tree” under an unlawful search. Again, good decision.

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.

When Prosecutors Violate the Advocate-Witness Rule: United States v. Rangel-Guzman

Constitutional Rights, Drug Offenses, felony, law enforcement, marijuana, police, Prosecutorial Misconduct, Search and Seizure, , ,

 

Motion for Disqualification Based on “Witness-Advocate Rule” Deemed “Premature” | Westchester Commercial Division Blog

In U.S. v. Rangel-Guzman, the 9th Circuit holds that a prosecutor commits error by phrasing cross-examination questions regarding a witnesses’ prior inconsistent statements as “but you told us” and “I asked you and you said.” Such questions violate the advocate-witness rule.

The defendant was arrested at the border while trying to transport 91.4 kilos of marijuana into the U.S. The marijuana was hidden in a compartment behind his backseat.

The defendant was arrested and charged with the federal offenses of Unlawful Possession With intent to Distribute. While the case was pending, the Federal prosecutor interviewed the defendant. Eventually, the case went to trial.

 At trial, and during cross-examination, the Assistant United States Attorney repeatedly attempted to impeach Rangel-Guzman by referring to a meeting between herself, Homeland Security Agent Baxter, Rangel-Guzman and Rangel-Guzman’s attorney. In doing so, the Prosecutor made it clear that she had questioned Rangel-Guzman and that he had made certain statements inconsistent with his current testimony: “You told us that you and your mother ran into Martha . . . You told us that four or five months before . . . That’s what you told us last week . . . Don’t you remember that I was shocked that you were saying it was four to five months before you got arrested?”

The court reasoned that the Prosecutor engaged in improper vouching by effectively acting as a witness. Vouching occurs when a prosecutor “places the prestige of the government behind the witness or indicates that information not presented to the jury supports the witness’s testimony.” United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980).

The Advocate-Witness Rule prohibits attorneys from testifying in a trial they’re litigating; the rule “expresses an institutional concern, especially pronounced when the government is a litigant, that public confidence in our criminal justice system not be eroded by even the appearance of impropriety.” United States v. Prantil, 764 F.2d 548, 553 (9th Cir. 1985).

Here, the prosecutor made a number of statements that used variations on “but you told us” and “I asked you and you said,” as well as assertions of fact about what had occurred during the meeting: “Well, we went over and over it, Mr. Rangel,” “Do you remember last week I specifically asked you multiple times who accompanied you to the Quinceanera?” And she left no doubt about her personal feelings during the meeting: “Don’t you remember that I was shocked that you were saying that it was four to five months before you got arrested that you met Martha?”

 When a prosecutor interviews a suspect prior to trial, the “correct procedure” is to do so “in the presence of a third person so that the third person can testify about the interview.”

The court concluded that undoubtedly, the Prosecutor was asking the jury to choose whether to believe her or the defendant. This was highly improper and unfair to the defendant.

 Despite the error, the court affirmed the conviction because the case against the defendant was so strong. In other words, the defendant failed to show that the outcome of the trial would have been different, had the error not occurred. For these reasons, the 9th Circuit affirmed the conviction.
My opinion? Interesting ruling. I’m satisfied the 9th Circuit actually took the case on appeal. It’s also pleasing they recognize when Prosecutors violate the Advocate-Witness Rule. It’s an important rule. Too often, Prosecutors lean on their own credibility when trying cases. This is a very subtle and damaging strategy because jurors have a tendency to want to believe everything a Prosecutor says!
This is very dangerous, however, when Prosecutors unlawfully insert themselves into proceedings and testify as witnesses. The Court was correct in saying that the Prosecutor should have called Agent Baxter to testify. Good opinion.

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.