Tag Archives: Skagit County Criminal Defense Attorney

Graham v. Florida: Court Strikes Down “Cruel & Unusual” Sentencing on Minor

Burglary, Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Juvenile, United States Supreme Court, , ,

What is Cruel and Unusual Punishment? - YouTube

In Graham v. Florida, the U.S. Supreme Court held it unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on “cruel and unusual” punishment.

Petitioner Graham was 16 when he committed armed burglary and another crime.  under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt.  Subsequently, the trial court found that Graham violated the terms of his probation by committing additional crimes.  The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the Burglary.  Because Florida abolished its parole system, the life sentences left Graham no possibility of release.  He challenged his sentence under the Eighth Amendment’s Cruel and Unusual Punishment Clause.

The U.S. Supremes sided with Graham, and reasoned the inadequacy of penological theory to justify life without parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that Graham’s sentence was cruel and unusual.  Moreover, defendants who do not kill, or foresee that life will be taken are less deserving of such punishments than are murderers.

Finally, the court reasoned that serious nonhomicide crimes may be devastating in their harm, but in terms of moral depravity and the injury to the person and to the public, they cannot be compared to murder in their severity.

My opinion?  The U.S. Supremes made the right decision.  It seems Draconian to impose a life sentence on a minor who committed a non-homicide crime.  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.

Speeders On Strapped Cities’ Radar

law enforcement, police, Privacy, Terry Stop, Traffic Infractions, Washington State Patrol, , ,

Nearly 600 Towns Get 10% Of Their Budgets (Or More) From Court Fines

Forget about traffic safety. In reality, traffic citations are a revenue-builder for municipalities undergoing the brunt of a deteriorating economy, budget cuts and layoffs.

“We were facing layoffs, and we were trying to think outside the box,” says Police Chief Dean McKimm of Canton County. “I’ll be very blunt about that: It does save jobs. It was kind of a no-brainer.”

Other cities & counties know there’s a lot of money to be made in stepped-up traffic enforcement:

  • In January, Georgia’s new “super-speeder” law kicked in. Get caught going 85 mph or more on a four-lane road in the Peach State and you’ll pay $200 on top of the regular ticket, which is often well more than $100. You’ll do the same if you go 75 mph or more on a two-lane road. Authorities said it filled a niche between regular speeding and reckless-driving violations. In February, super-speeder tickets totaled 1,084. Tennessee is considering a similar law.
  • A Colorado law that went into effect in 2009 doubled fines for speeding (the supporting information noted it would raise about $12 million annually for the strapped state). Another law has made speed guns mandatory in road-work zones.
  • In 2009, California added a $35 assessment to all traffic violations to help renovate 41 courthouses statewide. You’ll pay even if the courthouse where you show up to pay the ticket isn’t getting so much as a coat of paint.
  • The Massachusetts Turnpike Authority said it would collect an additional $1.2 million in fines from speeding tickets in 2008 to make up for lost revenue when troopers from the Massachusetts State Police were transferred the previous year to work around Boston’s “Big Dig” project.

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. Paumier: Court Upholds the Right to Public Trial & Self-Representation

Burglary, Constitutional Rights, Due Process, felony, Jury Trial, Theft, Washington Court of Appeals, , ,

The Possibilities and Pitfalls of Self-Representation for Artists - RedDotBlog

In State v. Paumier, the WA Court of Appeals reversed the defendant’s convictions because the trial court improperly (1) excluded public citizens from a portion of his trial, and (2) denied his right to represent himself.

Mr. Paumier was charged with Burglary and Theft.  Jury selection involved questioning jurors in chambers and recording their responses.  The public was not allowed to watch jury selection.  The trial court stated at the outset that potential jurors who preferred to answer questions privately to avoid possible embarrassment would be taken into the judge’s chambers.

Several jurors indicated during the course of voir dire that they preferred to answer certain questions in chambers.  The judge and the parties questioned five jurors in chambers, recording the jurors’ responses. Jury selection was completed that same day.

The following day, the trial court permitted the State to amend the information.  Paumier then pleaded not guilty and asked to represent himself, stating:

“I just don’t feel like a — I feel like there’s [sic] things about the trial getting this far that it shouldn’t have.  And I feel that my attorney should have spoke [sic] up for me instead of getting pissed off at me in court.  And I just don’t feel like he’s doing his job like he should.  I don’t feel it should have gotten this far, and I’d just rather present my, you know, case myself.”

His request was denied because the lower court decided that it came too late.

The WA Court of Appeals reasoned, however, that Paumier’s right to a public trial was violated when the court allowed the jurors to be questioned privately in chambers.  The guaranty of open criminal proceedings extends to voir dire.  Additionally, the recent U.S. Supreme Court’s Presley v. Georgia makes it clear that court room closures should be rare and the court must consider alternatives prior to closing the court room.

The trial court also abused its discretion when it denied the defendant his request to represent himself at trial.  Here, there was no request for continuance, and the defendant’s request was clear.  There was no evidence that trial would have been delayed, or that granting his request would have impaired the administration of justice.

 My opinion?  Good decision.  Kudos to the defendant for stating, on the record, his preference to represent himself after the judge and attorneys conducted voir dire in chambers, and away from the public eye.  Mr. Paumier correctly followed his instincts.  I hope Mason County learns a lesson.

 

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.

Seattle Mayor Vetoes Aggressive Panhandling Bill

Constitutional Rights, Race & Law, , ,

Panhandling: The Story Behind the Sign | Denver Rescue Mission

Seattle, be proud.

Last week, the Seattle City Council considered an unnecessary and divisive ordinance empowering the police to give out $50 tickets to people who panhandle. Similar measures have been introduced in other cities. While the measure passed by a 5-4 margin, four Council members, Bruce Harrell, Nick Licata, Mike O’Brien, and Tom Rasmussen, recognized this law could be used to improperly target poor people and people of color while doing nothing to improve public safety. They voted against it, and Mayor Mike McGinn vetoed the measure on Friday.

My opinion?  Sure, nobody likes being panhandled.  But criminalizing it?  C’mon, I’m sure taxpayers don’t want money spent jailing panhandlers!!!  Additionally, the civil rights violations and exposure to liability makes this bill extremely undesirable.  The Mayor and Seattle Council “got it,” and voted/vetoed intelligently.  Let’s thank these champions for taking a courageous stand for civil liberties!

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. Hall: WA Supremes Determine The “Unit of Prosecution” For Multiple Charges of Witness Tampering.

Assault, Burglary, Constitutional Rights, Due Process, felony, Legislation, Unit of Prosecution, Violent Crime, Washington Supreme Court, , ,

Freehold NJ Witness Tampering Lawyer | Asbury Park NJ Witness Tampering Charge Attorney

In State v. Hall, the WA Supreme Court decided that an incarcerated defendant’s numerous phone calls to a witness constituted only one charge of Witness Tampering.

Defendant Mr. Hall threatened his girlfriend and her lover with a gun after finding them together in her apartment.  He flees the scene and drives away in a car owned by his friend, Desirae Aquiningoc.  Police later confront Aquiningoc about lending her car to Hall.  She said that Hall was her boyfriend, that he lived with her, that he had borrowed her car on that January 14 to visit his mother.  Later, police find Hall at his home and arrest him.

Based on what happened at Salazar’s apartment, Hall was charged with Burglary First Degree Burglary and Assault Second Degree and held in jail pending trial.  While in jail, Hall attempted to call Aquiningoc over 1,200 times. During those phone calls, some of which were played for the jury, Hall attempted to persuade Aquiningoc that his legal woes were her fault and that she had a moral obligation not to testify or to testify falsely.

The phone calls were recorded.  The State charged Hall with four counts of Witness Tampering.  Hall goes to trial.  The trial judge treated each count of Witness Tampering as a separate unit of prosecution.  Hall appeals.  The case winds its way to the WA Supreme Court.

The legal issue was whether Witness Tampering is a continuing offense or whether it is committed anew with each single act of attempting to persuade a potential witness not to testify or to testify falsely.

The WA Supremes reasoned that a “unit of prosecution” can be either a single act or a course of conduct.  Here, the plain language of the statute supports the conclusion that the unit of prosecution is the ongoing attempt to persuade a witness not to testify in a proceeding.  They further reasoned that, in the alternative, each conversation is a separate crime and, in this case for example, could lead to as many as 1,200 separate crimes.

“Such an interpretation could lead to absurd results, which we are bound to avoid when we can do so without doing violence to the words of the statute,” said the Court.  “It seems unlikely the legislature intended that a person could be prosecuted for over a thousand crimes under the circumstances presented here.”  Consequently, the Court held, under the facts of this case, Hall committed one crime of Witness Tampering, not three.

My opinion?  Makes sense.  It DOES seem absurd to stack multiple charges in this case.  After all, a unit of prosecution can either be a single act or a course of conduct.  It seems more realistic to view Halls many calls as a continuing course of conduct.  You can’t label the calls as single acts because he didn’t change his plans, motive, or modus operandi.

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. Jones: Rape Shield Statute vs. Defendant’s Right to Testify

Constitutional Rights, Due Process, felony, Jury Trial, Rape, Sex Crimes, Washington Court of Appeals, Washington Supreme Court, , ,

What Is A Rape Shield Law? | The Defence Group

In State v. Jones, the WA Supreme Court held that the Rape Shield Statute does not stop a defendant from offering evidence or cross-examining a victim about the events on the night of the alleged sexual encounter, including the victim’s sexual conduct with other individuals during a wild sex party.

Defendant Mr. Jones was charged with first and second degree rape after his niece, K.D., claimed that Jones put his hands around her neck and forcibly raped her.  At trial, the jury acquitted Jones of first degree rape but could not reach a decision on second degree rape.  Jones was tried again for second degree rape along with the aggravating factor of being an individual in a position of trust to the victim.

Jones wanted to present evidence that K.D. consented to sex during an all-night sex party.  The party included one additional woman and two additional men, cocaine and alcohol.  During this party, K.D. consented to sex with all three men (which included Jones).  The judge, citing the Rape Shield Law, would not allow Jones to introduce such evidence because it was only being introduced to attack K.D.’s credibility.

Furthermore, during the trial, the prosecutor noted that Jones was compelled to give a DNA sample (did not do so voluntarily) and that he refused to clear up matters with the police.  At the end of trial, the judge backtracked a little and claimed that it allowed Jones to present evidence that the sex was consensual (but without mentioning the sex party).   Jones was convicted and appealed.  Jones claimed that the trial court erred when it refused to allow him to present evidence of the sex party and for the prosecutor’s inappropriate comments with respect to speaking with police and giving a DNA sample.

The Court of Appeals agreed with the trial court, but the Washington Supreme Court reversed.

First, the court reasoned that the trial court violated Jones’ 6th Amendment rights by refusing to allow Jones testify about the sex party.  “Jones’s evidence, if believed, would prove consent and would provide a defense to the charge of second degree rape.”  Furthermore, since no State interest can possibly be compelling enough to stop the introduction of evidence of high probative value, the trial court violated Jones’ Sixth Amendment rights when it barred his testimony.

Second, the Court held the Rape Shield Statute did not apply.  Washington’s rape shield law provides:

Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection (3) of this section, but when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when the past behavior is material to the issue of consent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense.

Here, the Court decided the Rape Shield Statute protects victims from testifying about past sexual behavior.  In this case, however, Jones was attempting to introduce evidence of present sexual behavior.  Thus, to deny such evidence under the rape shield law would be to read out the term past.   Furthermore, since the evidence that Jones sought to be introduced involved Jones’s defense and version of what occurred the night of the crime, the denial of such evidence was NOT harmless error.  Jones is entitled to a new trial.

My opinion?  Under the circumstances, the court made a well-reasoned decision.  Their interpretation of the Rape Shield Statute appears correct: although one cannot admit evidence of the victim’s past sexual history, the statute does not prevent present sexual history from being admitted into evidence.  This evidence seems especially relevant when the victim is engaged in exploits in the manner described in this case.  Good decision.

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

Extra Police On The Prowl For Speeders

Terry Stop, Traffic Infractions, Washington State Patrol, Washington State Traffic Commission, , ,

FCC Speeding Tickets in Missouri... - 636 Traffic Law

Be aware. Starting today, law enforcement agencies statewide will crack down on speeding with extra patrols on local roads, state highways and interstate freeways, according to a news release.

Padilla v. Kentucky: Noncitizens Entering Guilty Pleas + Bad Legal Advice = DEPORTATION!

Constitutional Rights, Drug Offenses, Due Process, felony, Immigration, United States Supreme Court, , ,

Will a Felony Get You Deported - JobsForFelonsHub.com

In Padilla v. Kentucky, the U.S. Supreme Court held that Defense attorneys representing aliens charged with crimes have a constitutional obligation to tell the client that a guilty plea carries a risk of deportation.

Mr. Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to Drug Offenses in Kentucky.  He claimed his attorney not only failed to advise him of this consequence before he entered the plea, and also told Padilla not to worry about deportation since he had lived in this country so long.  Padilla says he would have avoided pleading guilty and gone to trial had he not received bad advice from his attorney.

In deciding the issue, the U.S. Supremes applied the two-part test from Strickland v. Washington, 466 U.S. 668.  The test analyzes whether (1) counsel’s legal advice fell below an objective standard of reasonableness, and (2) there exists a reasonable probablity that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.

Here, Padilla proved his defense attorney gave misleading advice.  The Supremes reasoned that defense attorneys MUST inform a client whether his plea carries risk of deportation.  Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  They further reasoned that, recently, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences.  The importance of accurate legal advice for noncitizens has never been more important.

My opinion?  Good decision.  Mr. Padilla was rightfully granted relief for his attorney’s bad legal advice.  Under the law, immigrants can be deported if they are convicted of crimes which expose them to serving a year or more jail time.  Practically speaking, this applies to all gross misdemeanors and felonies.  Simple misdemeanors are exempt because their exposure is typically only 90 days in jail.

Padilla warns defense attorneys to correctly advise immigrant clients of the consequences of entering guilty pleas.

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.

Justice Stevens Retiring From Supreme Court

United States Supreme Court, , ,

Retired Justice Stevens On The Conservative Supreme Court : NPR

Supreme Court Justice John Paul Stevens the court’s oldest member and leader of its liberal bloc, is retiring.

Throughout his tenure, which began after President Gerald Ford nominated him in 1975, Stevens usually sided with the court’s liberal bloc in the most contentious cases — those involving abortion, criminal law, civil rights and church-state relations. He led the dissenters as well in the case of Bush v. Gore that sealed President George W. Bush’s election in 2000.

President Barack Obama now has his second high court opening to fill.

Justice Stevens, I salute your service to the bench.  Thank you for providing years of service and steadfast commitment toward deciding some of the nation’s most controversial legal issues.

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.

How To Protect Your Rights On Facebook

Constitutional Rights, Due Process, felony, law enforcement, misdemeanor, police, Pretrial Investigations, Privacy, Probable Cause, Search and Seizure, Search Warrant, Social Media, , ,

How to protect your privacy from Facebook | ZDNet

Think twice before posting those party pictures on Facebook.

The LaCrosse Tribune wrote an article on a University of Wisconsin-La Crosse student named Mr.  Bauer. He was popular with nearly 400 friends on Facebook. He got an offer for a new one about a month ago. “She was a good-looking girl. I usually don’t accept friends I don’t know, but I randomly accepted this one for some reason,” the 19-year-old said.

He thinks that led to his invitation to come down to the La Crosse police station, where an officer laid out photos from Facebook of Bauer holding a beer — and then ticketed him for underage drinking.

He was among at least eight people who said Wednesday they had been cited for underage drinking based on photos on social networking sites.

*       *       *       *       *       *      *       *       *       *       *       *       *       *       *       *       *

My opinion?  First things first, there’s certainly nothing good to be said about these sorts of law-enforcement tactics. Police always have better things to do than roam the Internet looking for pictures of naughty college kids and there’s no excuse for invading people’s privacy to make a couple petty arrests. The very notion of officers assuming fake identities on Facebook is just inherently repugnant and serves only to destroy their relationship with the very people they’re supposed to be protecting.

That said, it’s also worth keeping in mind that you have a 5th Amendment right not to post incriminating pictures of yourself on Facebook. It’s just an unfortunate reality that police do creep around on the web an awful lot for no particularly good reason and you never know where their prying eyes might land. This means you should think about what you’re posting, and keep an eye out for other people incriminating you as well. Simply un-tagging yourself from a couple questionable photos could be all it takes to save you a huge hassle down the road.

In my experience, this issue goes beyond what may or may not have taken place in one photo on one particular night. Seriously, I’ve known – and heard of – people who got passed over for a job because their prospective employer found unflattering photos online. Worse, I know of instances in which online photos were used to attack someone’s character in an otherwise unrelated criminal case. The bottom line is that posting pictures online has much broader implications than simply showing your friends what a kick-ass weekend you had.

Finally, remember that if you’re ever confronted with a photo that shows you in a compromising situation, you don’t have to incriminate yourself. Rarely will the photo itself be sufficient evidence to convict you of anything. What they’re really looking for is the confession that they hope will come spilling out of your mouth after they show you what they’ve got. If you keep your mouth shut and ask for a lawyer, chances are they’ve got nothing.

BTW, I’m not offering legal advice by posting this subject matter.  It’s offered for educational purposes only.   😉

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.