Tag Archives: Skagit County Criminal Defense Attorney

In re. Personal Restraint of Swenson

Jury Trial, Uncategorized, Washington Court of Appeals, , ,

What is Judicial Recusal? Is it ethical for judges to recuse themselves? Current Affairs 2019 - YouTube

Interesting case.  In In re. Personal Restraint of Swenson, WA Court of Appeals decided a judge should disqualify themselves from sentencing a defendant’s case if the judge’s impartiality might be reasonably questioned, but absent evidence of actual or potential bias, an appearance of fairness claim is without merit.

Mr. Swenson was sentenced for several sex offenses by a judge who prosecuted him 20 years earlier on an unrelated juvenile case.  Swenson did not ask the judge to recuse herself at the sentencing hearing on the sex offenses.  Nothing in the record indicated the judge remembered Swenson.  The judge imposed the agreed recommended sentence.  Swenson did not appeal the conviction, but he later filed a Personal Restraint Petition asking for a new sentencing hearing.  he cited the Appearance of Fairness Doctrine and the Code of Judicial Conduct.

The Court of Appeals reasoned that a judge should be disqualified if their impartiality is called into question.  However, in this case there is no showing of actual or potential bias.  The mere fact that a judge prosecuted a defendant in the past does not disqualify the judge from hearing the case today.

Moreover, the Court argued there is no basis to reasonably question whether Swenson received a fair, impartial, and neutral hearing.  The record shows the judge followed the parties’ agreed sentencing recommendation and the sentencing hearing was fair and impartial.  And nothing in the record indicates that the sentencing judge was aware of her involvement as a prosecutor 20 years earlier in an unrelated juvenile case against Swenson.

My opinion?  Seems fair.  In practice, judges typically recuse themselves upon realizing they defended or prosecuted the defendant months/years ago.  However, if the judge can’t remember, and has not been reminded by the defendant of their previous involvement, then the judge has no duty to recuse themselves.  And as far as disqualifying a judge is concerned, there must be some showing that the judge was biased for or against the defendant.  It’s common sense.

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’s New Noise Ordinance: A Step In the Right Direction

Bellingham, Bellingham Defense Attorney, law enforcement, Legislation, police, Whatcom County Criminal Defense, , ,

Keep It Down! Lansdale Borough Has a New Noise Ordinance

On December 6, at 7:00 p.m., Bellingham City Council members will vote on the creation of entertainment districts designed to simultaneously protect musicians/venues from noise complaints and downtown residents from excessive noise.

Under the ordinance, the council would officially create entertainment districts downtown and in Fairhaven.  It also would make a basic declaration recognizing that music venues “add to the vibrancy and economic vitality” of the city.  Then it directs police, in considering noise complaints, to assess the issue using various criteria like (1) time of day the complaint occurs; (2) duration and volume of sound; (3) the nature of the sound; and (4) the character of the business or industry from where the sound originates.

Members of the Bellingham Downtown Alliance for Music and Nightlife said the law contains some “very promising elements” and that it was exciting the council would be making an official declaration about the importance of music and nightlife to the city.  The group also wants the city to require landlords to disclose to potential tenants in the entertainment districts that they’d be living in an area with higher volumes of noise at later hours.

My opinion?  I live downtown.  There are three  noisy nightclubs/bars in my neighborhood.  They attract a noisy crowd, especially on the weekends.  However, I moved into this area knowing the noise existed.  Indeed, I welcomed it (if you can’t beat ’em, join ’em; if you can’t take the heat then get out of the kitchen, yadda yadda . . .).

The police and the City have cowed to the complaints of local citizens and businesses who can’t handle urban noise.  Indeed, mere months ago, Plan B Lounge closed down due to the excessive complaints of one neighbor (1!) who lived above the lounge and stated he couldn’t sleep because of the noise.  The City found in his favor and determined that Plan B must install soundproofing, and/or decrease the music.  The owners chose to leave.  Another local business bit the dust.  What a loss!  Throwing the baby out with the bathwater.

I’m in favor of the ordinance.  Police must now apply specific criteria in determining whether the noise ordinance is violated.  They can no longer make arbitrary and capricious decisions (it’s more difficult, anyway).  Good.  Let’s make standards and apply them fairly.  Otherwise, musicians and venues will continue face Disorderly Conduct charges for merely expressing themselves.

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.

It’s a Bad Time For Job Seekers With Criminal Records

Bellingham Defense Attorney, felony, Whatcom County Criminal Defense, , ,

Are Ex-Prisoners the Answer to Employee Shortages in the Workforce? - SCPa Works

The L.A. Times reported on the employment challenges faced by people coming out of prison. “As difficult as the recession has been on people, it’s twice as difficult for people with a felony to make it in this economy.”

The information is sobering.  As prisons are forced to reduce their inmate populations because of overcrowding and budget shortages, some economists fear that could lead many of them back to a life of crime.  Also, experts say two trends have dimmed employment prospects even more.

One is a severe contraction in industries such as manufacturing and construction that have traditionally been more open to hiring people with checkered pasts. The other is a rise in the number of former inmates looking for work, as state prisons and county jails try to reduce their inmate populations to save money.

My opinion?  Clients hire me for many reasons: to defend their rights, fight unwarranted criminal charges, and/or reach resolutions which dismiss/reduce criminal charges, and save their career from present or future calamities caused by the criminal charges levelled against them.  Criminal history, and especially FELONY history, is extremely harmful to my clients’ present and future job prospects.

Keep this in mind when seeking private counsel.  Do you trust them to humanize you?  Will they save your job/career?  Discuss the different strategies your potential attorney will implement in working your case.  In today’s tough job market, your livelihood depends on 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.

The Sentencing Project Releases New Publication on Prison Deterrence

Jail, Race & Law, Three Strikes Law, Uncategorized, , ,

How US prisons violate three principles of criminal justice | Aeon Ideas

Good reading!  The Sentencing Project’s report addresses a key concern for policy makers regarding whether deterrence is better achieved by increasing the (1) likelihood of apprehension, or (2) severity of sanctions.  The report, titled Deterrence in Criminal Justice: Evaluating certainty vs. the Severity of Criminal Punishment is written  is written by Valerie Wright, PhD.

Overall, the report concludes that:

•    Enhancing the certainty of punishment is far more likely to produce deterrent effects than increasing the severity of punishment.

•    There is no significant public safety benefit to increasing the severity of sentences by imposing longer prison terms, particularly at high levels of incarceration.

•    Policies such as “three strikes and you’re out” and mandatory minimum sentences only burden state budgets without increasing public safety.

•    Evidence-based approaches would require increasing the certainty of punishment by improving the likelihood of detection.

My opinion?  The report seems accurate.  I’ve blogged numerous times on this topic, particularly the need for the criminal justice system to seek rehabilitation instead of incarceration for many crimes, especially drug offenses.  At a time when fiscal concerns have propelled policymakers to consider means of controlling corrections budgets, the findings on deterrence suggest that a focus on examining harsh sentencing practices is long overdue.

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. Hirschfelder: Sexual Relations Between a Student and a School Employee

Rape, Sex Crimes, Washington Supreme Court, , ,

Utah and Salt Lake City Statutory Rape Defense Attorney | Greg S. Law

In State v. Hirschfelder, the WA Supreme Court held that the term “minor” includes students between the ages of 18 and 21, rather than just those under 18.

Here, defendant Mr. Hirschfelder was  employed as a choir  teacher at a High School.  He had sexual intercourse in his office with a member of the high school choir, A.N.T., several days prior to her graduation in 2006.   At the time, Hirschfelder was 33 and A.N.T. was 18.  Hirschfelder was charged with sexual misconduct with a minor in the first degree under former RCW 9A.44.093(1)(b).   That statute provided in relevant part:

A person is guilty of sexual misconduct with a minor in the first degree when:  . . . the person is a school employee who has, or knowingly causes another person under the age of eighteen to have, sexual intercourse with a registered student of the school who is at least sixteen years old and not married to the employee, if the employee is at least sixty months older than the student.

The case made its way to the WA Supremes.  They reasoned the statute was not ambiguous in its meaning.  They also stated that several sexual misconduct  laws focus on the special  relationship between a perpetrator and a victim, even where the victim is over 18 or even 21.

“For example, we criminalize sex with vulnerable adults or adults over whom the perpetrator has supervisory authority, RCW 9A.44.050, and sex between employees of custodial institutions and those in custody.  RCW 9A.44.160.   That the legislature saw fit to criminalize sex between school employees and high school students — even those who reach the age of majority while registered as students — is a policy choice that recognizes the special position of trust and authority teachers hold over their students.” ~WA Supreme Court

Justice Johnson, is his dissenting opinion, stated the statute “should not criminalize conduct between two consenting adults where the legislature has expressly provided otherwise.”  He also stated the former statute did not criminalize sexual intercourse between a school employee and an 18-year-old adult student.

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 Council Decides To Adopt Cameras Without a Public Hearing

Bellingham Defense Attorney, Red Light Cameras, Whatcom County Criminal Defense, , ,
City Council members have decided they want to install red-light and speed-zone cameras, and they won’t hold a public hearing before voting on them. The decision reverses the council’s 6-0 vote on Sept. 27 to hold a hearing on the topic.

The council decided there was no point in going through the “charade” of a public hearing if it was set on approving it anyway, he said. The council’s No. 1 goal is public safety, and members have already heard from the police department, which wants the cameras.

A crash recently killed a little girl near a school, and the city has had other crashes in school zones, Knutson said. Red-light running has long been a problem here, he said.

“We have not heard a lot about this issue from our citizens,” he said. “We’ve been getting bombarded by Tim Eyman and his crew.”

Political personality Tim Eyman is an anti-tax activist who also fights agsint red-light cameras.  He blasted the city’s decision to skip a public hearing.

“That is so sleazy,” Eyman said. “And they wonder why people distrust government. My gosh. They wonder why our initiatives are so popular.  This is just socialistic. This is authoritarian, dictator-type of decision making that doesn’t even give the imaginary illusions of public input,” Eyman said. “You’ve got to admire the audacity of it, it’s just ‘Who cares what the citizens think?'”

My opinion?  I actually agree with Eyman.  True, there is no “on-point” legal precedent stating a public hearing is legally required for decisions like this.  However, when a city council has made up its mind, it will usually hold a hearing to at least give the impression it’s being open-minded.

There are deeper reasons for the lack of public hearing.  First, the recent death of the young girl who was struck by a car near Bellingham High School probably prompted a greater public outcry FOR traffic cameras than AGAINST cameras.  Second, the City sees these cameras generating revenue for City coffers.

Being a staunch supporter of due process, I nevertheless believe the City Council should have adopted a hearing on the subject.  Trust me, Government fails when it skips steps and avoids processes.

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. Werner: Who Let The Dogs Out?

911 Call, Animal Abuse, Assault, Constitutional Rights, felony, Firearm, Jury Trial, Self-Defense, Washington Court of Appeals, , ,

HOA Senior Communities Should Ban Vicious Dogs | YourHub

In State v. Werner, the WA Supreme Court held that a defendant is entitled to a jury instruction on self-defense in the prosecution for first degree assault after accidentally discharging a firearm when confronted by a neighbor’s pack of dangerous dogs.

“Victim” Daniel Barnes moved to the property next door to to defendant Gary Werner. Almost immediately, Werner and Barnes  began an ongoing property dispute concerning a shared easement.  Barnes kept seven dogs on Barnes’s property, including a Rottweiler and pit bulls. At least  three times before the incident giving rise to criminal charges, the dogs came onto Werner’s property and acted menacingly, barking and circling Werner. Werner started carrying a handgun with him on the property because he was afraid of the dogs.

The property dispute  intensified.  On the day of the incident, Werner was on his property in the easement area when one of Barnes’s pit bulls approached him, baring its teeth. Werner noticed six other dogs with the pit bull, including the Rottweiler and other pit bulls.  The dogs started circling Werner.  He pulled out his pistol, thinking he could scare the dogs, and started yelling for Barnes to call off the dogs.  Werner panicked and called 911 on his cell phone, but due to his arthritis, the gun went off, discharging into the ground.  The police were contacted.

The State charged Werner with Assault First Degree and Malicious Harassment. The jury acquitted him of the Malicious Harassment charge but found him guilty of Assault First Degree.  He appealed.  The case ended up before the WA Supremes.

The Court reviewed the law on self-defense.  “To prove self-defense, there must be evidence that (1) the defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; [and] (3) the defendant exercised no greater force than was reasonably necessary.” Callahan, 87 Wn. App. at 929 (citation omitted).

The Court reasoned that here, Werner stated that he was afraid. That fear was arguably reasonable, given that he was facing seven snarling dogs, including several pit bulls and a Rottweiler.  Pursuant to State v. Hoeldt, 139 Wn. App. 225, 160 P.3d 55 (2007), a pit bull can be a deadly weapon under RCW 9A.04.110(6). There is evidence that Barnes’s friend refused requests to call off the dogs. By that conduct, Werner could reasonably have believed that Barnes’s friend personally posed a threat through the agency of a formidable group of canines that were under his control.

As to the firing of the weapon, the WA Supremes believed Werner’s accounting that it was an accident.  They found sufficient evidence of both accident and self-defense to warrant instructing the jury on self-defense.  “Since the outcome turns on which version of events the jury believed, the failure to give a self-defense instruction prejudiced Werner.” Accordingly, the WA Supremes reversed Werner’s conviction.

My opinion?  Good decision.  A pack of wild dogs surrounding and growling at you definitely warrants self-defense.  That’s a no-brainer!  The “victim” is lucky none of his dogs were killed.

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. Garcia-Salgado: DNA Swab is Unlawful if State Lacks Warrant Supported By Probable Cause

Constitutional Rights, DNA, felony, Jail, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

My Rights When Police Want my DNA in a Sex Assault Case | Berry Law

In State v. Garcia, the WA Supreme Court held that collecting a DNA swab from a defendant was unlawful search because it was made without a warrant and without probable cause based on oath or affirmation.

Petitioner Alejandro Garcia-Salgado was convicted of a Sex Offense in King County Superior Court after the results of his D.N.A. test linked him to the victim, and were were admitted into evidence during his trial.  He appealed his conviction, saying that the State lacked probable cause to test his D.N.A. and that conducting the test without his consent pursuant to a court order violated his constitutional rights.

The Washington Court of Appeals affirmed Garcia-Salgado’s conviction, holding that sufficient evidence existed in the record to establish probable cause for a test of Garcia-Salgado’s D.N.A.  Garcia-Salgado appealed this decision to the Supreme Court of Washington.

The WA Supreme Court reasoned that a cheek swab for DNA is indeed a search that intrudes into the body.  A search that intrudes into the body may be made  pursuant  to  an order entered under  CrR 4.7(b)(2)(vi) if (1) the order is supported by probable case based on oath or affirmation, (2) is entered by a neutral and detached magistrate, (3) describes the place to be searched and the thing to be seized, and (4) if there is a clear indication that the desired evidence will be found, the test is reasonable, and the test is performed in a  reasonable manner.

Here, the WA Supremes decided the trial court errored in procuring the DNA swab because the State lacked a warrant supported by probable cause.  “Consequently, this court cannot say that there was probable cause to search Garcia-Salgado’s DNA.  We reverse the Court of Appeals and remand.”

My opinion?  Heinous as the crime was, the WA Supremes decided correctly.  Defendants have rights, plain and simple.  The criminal justice system must conduct investigations in accordance with these rights.  If the process is short-cutted or made sloppy, then convictions cannot stand.  Here, the State failed to get a warrant for the DNA swab.  Consequently, they should not be allowed to present the DNA evidence at trial.  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.

Prosecutorial Misconduct Is Rarely Punished, Says New Study

Prosecutorial Misconduct, , ,

Criminal justice - The kings of the courtroom | United States | The Economist

Interesting.  According to a recent report, only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period.

The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.  Among the 707 cases, only six prosecutors — 0.8% — were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors.

“Preventable Error: A Report on Prosecutorial Misconduct 1997-2009,” issued by the Innocence Project’s Northern California chapter, was written by Ridolfi and Maurice Possley, a visiting research fellow at the project. Possley won a Pulitzer Prize for his reporting at the Chicago Tribune. Ridolfi is a professor at Santa Clara University School of Law.

The report included recommendations for reform. It called for district attorneys to adopt internal policies that do not tolerate misconduct. It also called for the state bar to increase disciplinary transparency.

My opinion?  The study supports what most defense attorneys already know.  I’ve worked cases where prosecutorial misconduct was clear and obvious.  However, after bringing the misconduct to the attention of judges on pretrial motions, I’ve found my concerns routinely overlooked, tolerated, condoned and/or minimized.  Sanctions are rarely given and the matter is swept under the rug.

One could argue that elected prosecutors have a level of political influence with the judges hearing criminal cases.  Very often, judges are former prosecutors.  Prosecutors also exhibit  a “halo effect” among voters which defense counsel does not have.

Although I don’t fully support those arguments (well, maybe just a little), I fully believe that judges simply want to evade mudslinging contests between prosecutors and defense attorneys altogether.  Judges tend to allow the governing Bar Association sort these matters out.

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.

Child Witness Competency

Child Competence, Constitutional Rights, felony, Jury Trial, Pretrial Investigations, Rape, Sex Crimes, Washington Supreme Court, , ,

Children Witnesses in the Criminal Courts: Recognizing Competence and Assessing Credibility

In State v. S.J.W., the WA Supreme Court held that a party challenging the competency of a child witness must show that the child is of unsound mind, intoxicated at the time of his production for examination, incapable of receiving just impressions of the facts, or incapable of relating facts truly.

S.J.W., a minor, was charged with a sex offense against a 14-year-old W.M., a developmentally delayed boy.  The State wanted W.M. to testify against S.J.W., and S.J.W. challenged W.M.’s competency to testify.  At the competency hearing, the trial judge concluded S.J.W. failed to meet his burden to establish that W.M. was not competent to testify.  The trial judge permitted W.M. to testify at the bench trial, and S.J.W. was convicted.

S.J.W. appealed.  The Court of Appeals affirmed S.J.W.’s conviction but held  that the party offering a child witness bears the burden to show the witness is competent to testify.  The Court of Appeals concluded that, although the trial judge erroneously placed that burden on S.J.W., this error was harmless.  The State challenges this holding, arguing that the trial judge properly placed the burden on S.J.W.  The WA Supremes agreed.

The WA Supremes reasoned that until 1986, former RCW 5.60.050 provided that all persons of suitable age could be witnesses except those of unsound mind, those who were intoxicated at the time of examination, and children under 10 who appeared incapable of receiving just impressions of the facts or of relating them truly.  State v. Allen, however, changed the notion.

The court in Allen concluded that the true test of the competency of a “young child” of “tender years” consists of (1) an understanding of the obligation to tell the truth, (2) the mental capacity at the time of the occurrence concerning the testimony, (3) sufficient memory to retain an independent recollection of the occurrence, (4) the capacity to express in words her memory of the occurrence, and (5) the capacity to understand simple questions about the occurrence.

In other words, all persons, regardless of age, are now subject to this rule because there is no longer any requirement that a witness be of suitable age or any suggestion that children under 10 may not be suitable witnesses.  A child’s competency is now determined by the trial judge within the framework of RCW 5.60.050, while the Allen factors serve to inform the judge’s determination.

My opinion?  I prefer having the 10-year old “cutoff age” when it comes to child testimony.  All to often, children are coached by biased adults.  I’ve conducted enough jury trials to know that children usually repeat whatever the trusted adult wants them to say.  Unfortunately, this court decision places an extra burden on attorneys – defense attorneys, undoubtedly – to show the respective child witness is incompetent to testify.

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.