Tag Archives: Whatcom County Criminal Defense Attorney

Study: Forest Fire Smoke Leads to Increased Criminal Activity

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Summer approaches. And with it, wildfires are on the rise. In Washington State, the wildfire season usually begins in early July and typically culminates in early October when regular rain returns to the Northwest. around the globe. Ever more frequent, severe and longer lasting fire hotspots are expanding to new territories, as the fingers of climate change reach farther around the planet. This isn’t just hazardous to our physical health, it’s impacting people’s mental wellbeing as well.

Interestingly, the most insidious threat is only now being understood. New research has found that wherever the smoke goes, a rise in crime may not be far behind.

THE REPORT

Doctoral researcher Lion Kircheis is a political scientist from the University of Konstanz. He analysed crime report data from the Seattle Police Department from 2013 to 2023, and identified smoky days caused by wildfires on the basis of satellite data, analyses of wind direction and local monitoring stations.

What he found surprised him. According to his report, For 11 years, assaults were higher on days when nearby wildfires had released smoke and particulate matter into the Seattle air. anD when the particulate matter increased by 7.0 μg m−3, there were 3.6 per cent more assaults on these smoky days.

“That’s equivalent to around one additional assault per day in a city the size of Seattle. The statistical increase of 3.6 per cent is not high but, crucially, it is consistent. On those days, when air pollution is up by 7.0 μg m−3, it’s not as if the sun gets blocked by a thick haze of smoke or anything – the air still looks clear. But what is striking is that even a little bit of smoke in the air has an impact on people.” ~Lion Kircheis, Political Scientist

Kircheis looked for any other likely causes for the increase in violence, such as more traffic jams or an increase in police response time. But neither of these were the case. Interestingly, domestic violence call numbers didn’t rise when wildfire smoke was present. That suggests that outdoor exposure to wildfire smoke was the culprit – not indoor air pollution.

And, of course, socio-economic background then comes into play – although we might think we all breathe the same air, it’s not the case for those who work outdoors or do not have access to filtered indoor air.

This doesn’t mean the average person will become more violent just because they’re inhaling invisible wildfire smoke. What is more likely is that aggressive conflicts will spill over into violent actions when there is wildfire-induced smoke in the air. And it’s not just civilians who are susceptible. Police statistics suggest that officers in Seattle responded with more physical force on those smoky days.

The findings are supported by another study that used crime data from 21 major US cities from 2007 to 2020. This research showed that violent and drug-related crimes were particularly prevalent when wildfire smoke was in the air, with a 0.88 per cent increase in violent offences and a 1.35 per cent rise in drug-related crimes.

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

U.S. Supreme Court Sides With Death Row Inmate in Challenge to Racial Discrimination in Jury Selection

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In Pitchford v. Cain, the U.S. Supreme Court reversed a Black death row inmate’s criminal conviction and death sentence. By a vote of 5-4, the court agreed with Defendant Terry Pitchford that the judge at his 2006 trial had not properly analyzed whether the prosecutor in Pitchford’s case violated the Constitution’s ban on racial discrimination in jury selection.

Forty years ago, the U.S. Supreme Court’s  Batson v. Kentucky held the Equal Protection Clause bars prosecutors from exercising peremptory challenges based on race. In Batson and subsequent cases, the Court has spelled out a three-step process for a trial court to determine whether a prosecutor employed a peremptory challenge based on race.

FACTUAL BACKGROUND

in 2004, two black teenagers, Terry Pitchford and Eric Bullins, robbed agrocery store near Grenada, Mississippi. During the robbery, Bullins shot and killed the white store owner. Bullins reached a plea agree–ment and received a 20-year sentence for the homicide. The State charged Pitchford with capital murder and sought the death penalty. During jury selection at Pitchford’s trial, the prosecutor used peremptory strikes against four of the five black potential jurors.

Pitchford’s counsel raised an objection under Batson and made a prima facie showing that the strikes of the four black jurors were based on race (step one). The trial court asked the prosecutor for race-neutral reasons for each strike, and the prosecutor offered reasons (step two). The trial court declared the prosecutor’s stated reasons to be race neutral, but the trial court did not afford defense counsel an opportunity to rebut the prosecutor’s race-neutral reasons as pretextual (step three). Nor did it make any findings regarding whether the prosecutor’s stated reasons were pretextual.

At the close of jury selection, defense counsel sought to raise the Batson issue again, but the trial court twice cut off defense counsel. The empaneled jury, consisting of 11 white jurors and1 black juror, convicted Pitchford of capital murder and sentenced him to death.On direct appeal, the Mississippi Supreme Court concluded that Pitchford had waived his Batson objection by not arguing to the trial court that the prosecutor’s proffered explanations were pretextual.

Pitchford later filed a habeas corpus petition in U. S. District Court. Applying the applicable standard to obtain federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996, the District Court concluded that the Mississippi Supreme Court had unreasonably applied Batson and had unreasonably determined that Pitchford waived his Batson objection. The District Court explained that no state court had conducted the full three-step Batson inquiry, and that the trial court had “thwarted” the “attempt by Pitchford’s counsel to argue pretext.” The Fifth Circuit reversed the District Court, concluding that the Mississippi Supreme Court’s waiver finding was reasonable. The United States Supreme Court granted review.

COURT’S ANALYSIS & CONCLUSIONS

the Supreme Court reversed the 5th Circuit’s decision and sent the case back to the lower courts. Justice Kavanaugh’s delivered the majority opinion. His analysis in his opinion for the majority was succinct. “After a prosecutor asserts race-neutral reasons for a peremptory strike,” he explained, “the defense counsel must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons—that is, the reasons were pretextual. Then, the trial court can determine whether those asserted reasons were the actual reasons or instead were pretextual.” Here, however, Kavanaugh emphasized that the Batson analysis was not correctly or accurately provided:

“Whether due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down, and the ordinary trial-court procedure for resolving Batson claims at step three never occurred—notwithstanding the repeated efforts of Pitchford’s counsel to pursue and preserve the Batson objection.” ~U.S. Supreme Court Justice Kavanaugh

Kavanaugh conceded that, in cases involving AEDPA, federal courts normally are “deferential to the state court. But deference does not mean abdication,” he stressed. And here, “the Mississippi Supreme Court’s conclusion that Pitchford waived his opportunity to rebut the prosecutor’s proffered race-neutral reasons was unreasonable.”

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.

City of Bellingham to Lower Speed Limits

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The Bellingham City Council recently voted to lower speed limits 5 to 10 mph. This means slower speeds in most neighborhoods, including arterial streets and in the downtown core.

THE DATA

In recommending the new speed limits, Public Works officials sought guidance from the “City Limits” report prepared by the National Association of City Transportation Officials. The data included the following information:

  • Over the past decade, the total number of crashes on Bellingham roads has declined, but their severity has risen.
  • From 2015 to 2019, there were five traffic deaths on Bellingham streets. That includes a 2017 crash that killed a bicyclist.
  • From 2020-2024, there were 15 traffic fatalities, including 10 bicyclists and pedestrians. Two people have been killed on Bellingham streets so far this year, including one pedestrian.
  • Bellingham has 670 “lane miles” of streets.
  • More than half of Bellingham streets have a 25 mph speed limit, and more than a third of its streets have a 35 mph limit.
  • Only 3% or streets have a limit of 50 mph or higher.
  • Lowering speed limits will require a change in city policy, which now uses a system that sets speeds as a function of how fast 85% of drivers are going on a particular street.

WILL DECREASING SPEED LIMITS LEAD TO INCREASED PRETEXTUAL POLICE STOPS?

Probabaly, yes. A pretextual traffic stop happens when a police officer pulls someone over for a minor traffic or equipment violation to try and find evidence of another more serious crime. The legality of these stops is highly controversial, relying on deeply established federal law and evolving state-specific restrictions.

KNOW YOUR RIGHTS
  • Duration Limits: Officers cannot legally prolong a routine traffic stop beyond the time it takes to issue a warning or citation unless they develop a new, independent suspicion of a crime.
  • Consent to Search: You have the right to refuse a search of your vehicle unless the officer has probable cause or a warrant.
  • Legal Defense: Because these stops walk a fine line, experienced criminal defense lawyers often challenge the validity of the initial stop or the scope of the officer’s search in court

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

Admitting Evidence of “Common Scheme or Plan” Under Evidence Rule 404(b)

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In  State v. Stearns, No. 103908-5 (Mar. 26, 2026), the WA Supreme Court held that evidence of a defendant’s prior bad acts may be admissible under ER 404(b) to show “common scheme or plan” if the prior bad acts were markedly similar to the charged crimes.  Also, the victims in the prior bad acts do not need to be markedly similar to each other for the prior bad acts to be admissible to show common scheme or plan.

FACTUAL BACKGROUND

In 1998, Crystal Williams, a 33-year-old Black woman, was found dead in Lavizzo Park in Seattle’s Central District. Ms. Williams worked as a sex worker. Six years later, the Defendant Mr. Stearns’ DNA matched the DNA in the semen found at the crime scene. Police interviewed Mr. Stearns, who was then serving time in prison for another crime. The prosecutor determined there was probable cause to charge Mr. Stearns with Ms. Williams’ murder but failed to bring charges until 12 years later.

The State charged Mr. Stearns with felony murder in the first degree, based on first- and second-degree rape, with sexual motivation. At trial, the State offered, and the court admitted over Mr. Stearns’ objection, evidence of two of Mr. Stearns’ prior rape convictions. The State sought to admit these prior acts under the common scheme or plan exception to ER 404(b) to establish forcible compulsion and to rebut the defense of consent. Defense counsel objected, arguing that the other wrongful acts were not part of a common scheme or plan and that the evidence was unfairly prejudicial.

The trial court overruled the objection, concluding that the probative value of the evidence outweighed any prejudice and that the court would give a limiting instruction to the jury about the purpose of the admitted evidence. The trial court stated that the ER 404(b) evidence’s relevance to prove forcible compulsion and rebut Mr. Stearns’ claim of consent was “critical” to its ruling.  The trial resulted in a hung jury. After numerous appeals and reversals, the WA Supreme Court granted certiori to decide the isue of The trial court did not abuse its discretion in admitting evidence of the prior rapes under ER 404(b) to establish forcible compulsion and to rebut the defense of consent.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court discussed the parameters of Evidence Rule (ER) 404(b). Under this evidence rule, a trial court may admit the defendant’s other wrongful acts to show a common plan or scheme if the other wrongful acts are (1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial. However, the WA Supreme Court also said a court may not admit evidence of a defendant’s other wrongful acts to show that the defendant has a propensity for criminal behavior. ER 404(b). The reason for this prohibition is the risk that the jury will simply punish a defendant for their other wrongful acts or will assume they committed the current alleged criminal act.

Next, the WA Supreme Court reasoned that when analyzing a defendant’s “common scheme or plan,” courts must consider the acts, the victims and the circumstances of the crimes. On this, the Court reasoned that evidence may be admitted under this exception when a person uses one plan to repeatedly commit separate but very similar crimes. The separate crimes do not have to be identical, but they must be markedly similar acts of misconduct against similar victims under similar circumstances. Further, the acts must have such a concurrence of common features that they are naturally explained as being part of a common plan.

Against that backdrop, the WA Supreme Court ruled that because Mr. stearns’ other acts of sexual assault were sufficiently similar to the present case, it was within the trial court’s discretion to admit that evidence under ER 404(b). First, the other wrongful acts committed by Mr. Stearns were markedly similar to the acts here: he hit each victim on the head, strangled them, and sexually assaulted them, and there is evidence that all three victims were robbed. This factor weighs strongly toward showing a common plan, said the Court.

Second, the dissimilarities between the victims do not weigh heavily in this case. Each woman was a victim of a seemingly random act of violence, who was attacked in Seattle’s Central District in a similar manner. These similarities between the victims are sufficient. Finally, the circumstances of the crimes in this case were similar in that Mr. Stearns was able to attack each victim by tricking them:

“Mr. Stearns entered BG’s home around midnight with a ruse, telling her someone was chasing him. Mr. Stearns attacked DH from behind after appearing to be passed out and lying in the gutter. While many details of Crystal Williams’ death are unknown, based on the circumstances it is likely the killer approached Ms. Williams under the guise of offering drugs or money for sex.” ~Justice Salvador A. Mungia, WA Supreme Court

With that, the WA Supreme Court reversed the Court of Appeals and reinstated Mr. Stearns’ conviction.

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

Whatcom County Approves New Criminal Justice Sales Tax

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WHATCOM — The Whatcom County Council considered and ultimately approved a new 0.1% sales and use tax for criminal justice purposes after a public hearing held on April 14.

A preliminary discussion was first held with the county council during the Feb. 24 meeting, with an understanding that the county executive would bring forth an ordinance at a later meeting.

According to a staff memo, rising costs within the criminal justice system are creating pressures on the 2027-2028 biennium budget. Existing revenue sources are unable to keep up with labor costs and inflation, as revenues sources are projected to grow more slowly.

“Further, the county has already initiated critical services — most notably expanded jail medical services — without a designated, sustainable revenue source,” the staff memo states. “This revenue is needed, not to launch new programs, but to sustain obligations already underway and prevent a more rapid deterioration of the general fund trajectory.”

The sales tax is expected to bring in about $6.5 million to $7 million and could be used to offset operating obligations, such as jail health and food services, sheriff’s office lease and criminal justice labor costs across several departments. Revenue collection can begin July 1.

The public hearing came with mixed feelings, with some saying it should help a broader range of services and that the tax is needed to fund various programs while others said they don’t trust the government to not squander the funds and that it should not be threatening cuts to the sheriff’s department should the tax not pass.

After holding public comment, council voted 5-2 to approve the new tax, with council members Mark Stremler and Ben Elenbaas voting against it. Stremler and Elenbaas then voted on a separate ordinance to instead send the tax increase to the voters. That ordinance did not pass, as the five other council members voted against it.

However, the county’s attorney advised that the council does not have the authority to put the tax on the ballot in this specific instance. Elenbaas and Stremler said they disagreed with the interpretation.

“We want to have the voters of Whatcom County decide if they want to pay this or  do they not want to pay this tax,” Stremler said. “That’s the bottom line.”

According to a presentation from Deputy Executive Kayla Schott-Bresler, had the tax not passed the county would need to cut millions of dollars across all county departments. Even with the tax, some modest cuts will still need to be made.

Here are key takeaways:

• What it costs you: The tax adds 10 cents to every $100 purchase, amounting to about $25 to $45 annually for the average Whatcom County family.

• When it starts: The tax takes effect July 1 and could raise $6.5 to $7 million annually for the county.

• Why the county says it’s needed: County Executive Satpal Sidhu called the tax a “crucial step toward fixing the structural imbalance in the county’s annual budget.” Without it, the county faces a $12 million deficit by 2028 and potential cuts to the Sheriff’s Office, courts and Prosecutor’s Office.

• No public vote — for now: A companion advisory referendum failed 2-5. A voter referendum under state law isn’t allowed until 2028, according to Deputy Prosecutor Kimberly Thulin.

• Where the money goes: Funds will pay for health and food services at the county jail, a lease on a new Sheriff’s Office building and labor costs.

My opinion? Criminal justice sales taxes (often known as public safety sales taxes) are a specialized tax, such as the 0.1% increase recently implemented in several Washington state jurisdictions. Whether they are considered “good” or “bad” depends largely on whether the need for immediate funding outweighs concerns about equity and tax fairness.

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.

Marijuana Arrests Decrease

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The Marijuana Policy Project just released a new report on weed-related arrests in the United States. Based on FBI Crime Explorer data, the report examines cannabis arrest data in all 50 states, including a state-by-state breakdown of arrest data. In short, the report shows that states have turned to more pragmatic regulation and legalization of cannabis. The era of mass arrests is decreasing.

“Cannabis legalization across 24 states has driven a historic decline in cannabis arrests nationwide, from a high of nearly 900,000 to over 200,000 annually. That is still an alarmingly high number, with each of those arrests representing an actual person whose current reality and future prospects may well be derailed by a criminal record. Across half of our country, hundreds of thousands of Americans are still being funneled into the criminal justice system every year for a victimless ‘crime’ that is very likely legal in the next state over.” ~Marijuana Policy Project Executive Director Adam J. Smith

THE NUMBERS

The report found that annual cannabis arrests in the United States dropped from a peak of over 870,000 in 2007 to 211,104 in 2025. The findings show that cannabis arrest rates have dropped 85.53%, with possession arrests dropping by an average of 84.61% and sales arrests decreasing by an average of 80.39%.

In 2025, law enforcement agencies in states that have legalized marijuana reported 22,357 cannabis arrests, while states that continue to prohibit pot reported 186,581 cannabis arrests. The 24 states with legal cannabis made a total of 222,261 fewer cannabis arrests in 2025 compared to the year prior to their legalization of cannabis. Prohibition states made more than eight times as many cannabis arrests than legalization states in 2025, although they have a smaller total population.

My opinion? We’ve come a long way since nearly 900,000 annual arrests. Nevertheless, 200,000 Americans arrested every year for cannabis is still a human rights disaster that must end. Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Protection Order Violations & Firearms Surrender

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Many clients charged with Protection Order Violations ask why they must surrender their firearms. They see this government act as unreasonable intrusion of their Second Amendment right to Bear Arms. Under the law, when a protection order is served, the respondent must immediately surrender all firearms, dangerous weapons, and concealed pistol licenses (CPL) to law enforcement. Failure to comply, or possessing firearms while under such an order, is a criminal violation.

In State v. Bell, the WA Court of Appeals recently held a protection order requiring an individual to surrender firearms does not violate the Second Amendment when the court finds the individual poses a clear threat of physical violence to another. The threat does not have to be towards a specific identified person. Due Process only requires notice and an opportunity to be heard. Here, the defendant had an opportunity to be heard but he chose not to appear for the hearing. Thus, there was no Due Process violation.

BACKGROUND FACTS

In October 2021, a temporary protection order issued under former RCW 26.50 was served on Mr. Bell. It prohibited him from contacting his mother and minor child. The temporary order required Bell to “surrender all firearms and prohibit[ed] him from accessing, obtaining, or possessing firearms.” Bell was personally served with a copy of the petition, the temporary protection order, notice of a hearing on November 4, 2021, and an order to surrender weapons. Bell did not appear at the November 4 hearing, nor did he appear at a rescheduled hearing two weeks later.

On November 18, 2021, a superior court commissioner entered a final protection order.  Along with prohibiting contact with his mother and child, is also required Bell to surrender weapons and prohibited him from accessing, possessing, or obtaining any firearms. The order requiring Bell to surrender weapons was based on the court commissioner’s findings that Bell “had actual notice, represented a credible threat, and was an intimate partner.” The order also found that Bell “presents a serious and imminent threat to public health or safety, or the health and safety of any individual by possessing a firearm or other dangerous weapon.”

On January 1, 2022, Bell appeared at a QFC kiosk with an AK-47 assault rifle. Bell asked the clerk for cigarettes. When the clerk asked for payment, Bell pointed the rifle at him. Bell admitted at trial that he knowingly possessed the rifle, which he was still carrying when arrested about an hour later. The AK-47 was later test-fired and determined operable.

The State charged Bell with attempted robbery in the first degree and unlawful possession of a firearm in the second degree (UPF-2). The trial was bifurcated. A jury convicted Bell of attempted robbery and found that he had been armed with a firearm. Following a bench trial, Bell was convicted of UPF-2. The trial court found that the protection order met the legal requirements to support his conviction. Accordingly, the trial court concluded that Bell was guilty of UPF-2.

Bell timely appealed to this court raising a facial challenge to the constitutionality of the  UPF-2 firearms conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (the Court) began with sweeping descriptions of the Second Amendment. Among other things, it said the U.S. Supreme Court has construed the Second Amendment as guaranteeing an individual right to possess and carry weapons in case of confrontation. This right extends to the right to possess a handgun in the home for self-defense as well as an individual’s right to carry a handgun for self-defense outside the home. In its analysis, the Court also explained that since the founding, the nation’s firearm laws have included regulations to stop individuals who threaten physical harm to others from misusing firearms.

Here, the Court found Mr. Bell’s protection order was consistent with this nation’s tradition of firearm regulation and compatible with the Second Amendment. They also reasoned that Mr. Bell presented a serious and imminent threat to public health or safety, or the health or safety of any individual by possessing a firearm or other dangerous weapon.

Next the Court rejected Mr. Bell’s argument that his conviction should be vacated because the “serious and imminent” finding was entered despite never hearing from Bell.  Stated differently, Bell argued that receiving notice and an opportunity to attend the hearing was not enough because there was no back up plan if he was not present in court and surety laws required actually hearing from the accused. In response, the Court rejected these arguments because he failed to appear at his court hearings:

“The court did not hear from Bell only because Bell chose not to appear at either of the two hearings on the protection order. The procedural protections were there, but Bell failed to use them.” ~WA Court of Appeals

Finally, the Court rejected Mr. Bell’s arguments that Washington’s UPF-2 was unconstitutional because it prohibits any and all possession of a firearm, including if done in self-defense of his home:

“Bell was disarmed because he represented a serious and imminent threat to the public. There is no authority that dangerous individuals can retain partial firearm rights even though they are lawfully disarmed.” ~WA Court of Appeals

With that, Mr. Bell’s criminal convictions were upheld.

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.

Millionaires Tax Will Not Help Fund Public Defense

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Last month, Washington state lawmakers rejected a plan to use a new income tax to help pay for lawyers for criminal defendants, despite warnings of a growing public defense crisis. Apparently, the rising public defense costs — driven by new state caseload standards — could push county governments toward bankruptcy and bring the state’s criminal justice system to a standstill, county officials say.

THE NUMBERS

Washington’s counties paid more than $200 million to provide public defense services in 2024, Young’s group estimated. The state picked up less than $6 million of those costs that year. The Legislature has since boosted its contribution to $13.6 million annually. Unfortunately, this is merely a fraction of current costs, especially with the new caseload standards ramping up.

BACKGROUND

Early versions of the Legislature’s new tax on annual incomes over $1 million – commonly called a “millionaires tax” – would have directed between 5% and 7% of the revenue to county and city public defense costs. However, that language was stripped out of the bill that ultimately passed last week.

Instead, local governments could lose more than $300 million per year due to sales tax breaks in the new income tax plan. Apparently, those losses will make paying for public defense even harder.

Washington’s counties have long shouldered most of the cost of providing attorneys to criminal defendants who can’t afford them — a right guaranteed in the state constitution. This problem is ongoing. In 2023, the state Association of Counties sued the state, accusing the Legislature of shirking its duty to pay for those services. That lawsuit is ongoing.

Also, last year the state Supreme Court issued an order last year requiring public defenders to sharply reduce their caseloads. The new standards cut maximum felony and misdemeanor caseloads by roughly two-thirds. Counties have up to 10 years to fully comply, but must steadily reduce caseloads toward the new limits each year. Meeting those standards will more than triple public defense costs statewide, Young estimated.

My opinion? Public defenders continue to face funding 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.

The Right To Counsel Does Not Also Include the Right to Coaching A Defendant Mid-Trial

Bellingham Defense Attorney, Constitutional Rights, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

In Villarreal v. Texas, the U.S. Supreme Court held that a trial court, during a brief daytime break in the defendant’s testimony, may entirely prohibit defense counsel from communicating with the defendant.

This protects the truth-seeking function of the trial by preventing mid-testimony coaching.  However, during more extended overnight breaks in the defendant’s testimony, a trial court may only prohibit defense counsel from influencing or managing the defendant’s testimony, not from discussing other topics with the defendant such as the availability of witnesses, trial tactics, or plea bargaining.

FACTUAL BACKGROUND

David Villarreal’s murder trial culminated with his own testimony. That testimony was interrupted by a 24-hour overnight recess, during which the trial judge instructed Villarreal’s attorneys not to “manage his testimony.” The judge clarified, however, that Villarreal was not prohibited from talking to his attorneys. The judge recognized Villarreal’s constitutional right to confer about certain topics, such as possible sentencing issues. Villarreal resumed his testimony 24 hours later and was subsequently convicted of murder. On appeal, the Texas Court of Criminal Appeals concluded that the order was a permissible exercise of the trial court’s discretion. Villarreal appealed on arguments that his 6th Amendment Right to Counsel was violated by the trial court’s rulings.

COURT’S ANALYSIS & CONCLUSIONS

Justice Ketanji Brown Jackson delivered the majority opinon of the Court. In short, she affirmed Villarreal’s murder conviction, holding that a qualified conferral order during an overnight recess — one that prohibits only discussion of the defendant’s testimony “for its own sake” while allowing consultation on other protected topics — does not violate the Sixth Amendment.

The Court framed the issue as a tension between two principles: the defendant’s fundamental right to counsel and the truth-seeking interest in preventing lawyer-influenced midstream alteration of sworn testimony. It treated the case as a middle ground between Geders v. United States, (overnight total ban invalid) and Perry v. Leeke, (brief daytime ban valid), emphasizing that those cases involved unqualified bans on attorney-client communication, whereas this case involved a content-limited restriction.

The majority’s rationale was that the line between Geders and Perry is “substantive, not merely temporal.” In other words, a testifying defendant retains a constitutional right to consult counsel about matters like trial strategy, plea decisions, and other issues beyond the testimony itself, but does not have a constitutional right to discuss ongoing testimony as such while still on the stand:

“The trial judge’s order here prohibited Villarreal’s lawyers from “managing” his “ongoing testimony.” This order permissibly balanced the truth-seeking function of the trial against Villarreal’s right to discuss protected topics with his lawyers—things like trial strategy, whether to consider a guilty plea, and factual information crucial to tactical decisions.”

“A court cannot prohibit a defendant from obtaining his attorney’s advice on whether and why he should consider a guilty plea, even if the “why” includes the impact of ongoing testimony on the trial’s prospects. But it may, like the court here did, prohibit discussion of testimony as such.” ~Justice Ketanji Jackson, U.S. Supreme Court

The Court analogized such orders to witness-sequestration principles adapted to the defendant’s special status. In doing so, the Court reasoned that forbidding only “managing” testimony permissibly balances constitutional rights with the trial’s truth-seeking function.

In its conclusions, the Court also rejected Villarreal’s request for a bright-line rule barring any overnight restriction, reasoning that a narrow no-testimony-discussion order is not the same as an overbroad prohibition on all attorney-client consultation.

With that the U.S. Supreme Court affirmed Mr. Villareal’s murder conviction.

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

Governor Signs Bill Prohibiting Law Enforcement Impersonators

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Governor Bob Ferguson signed a bill preventing individuals from posing as law enforcement with fake badges or other items with law enforcement insignia.

The Governor worked with Rep. Edwin Obras (D-Burien) and Sen. Adrian Cortes (D-Battle Ground) to propose the legislation, House Bill 2165. The bill bans individuals who are not law enforcement from wearing, displaying or possessing badges or other law enforcement insignias. House Bill 2165 passed the House in a bipartisan 66-29 vote and passed the Senate 30-18.

WHY IS THIS LAW NECESSARY?

CNN found that there were more ICE impersonation incidents in 2025 than in the past four presidential administrations combined. This bill increases safety and accountability by ensuring that only legitimate officers identify themselves as law enforcement.

“If you’re not a law enforcement officer, it needs to be illegal to wear something that gives the impression that you are. This common-sense change in state law will make Washingtonians safer and hold imposters accountable.” ~Governor Bob Ferguson

“It’s just common sense and good community safety policy,” Rep. Obras said. “If you talk to someone you believe is a law enforcement officer, you should be able to trust that they, in fact, are who they say they are. These unprecedented times, in which federal officials are arresting and detaining members of our communities, require us to ensure those creating additional chaos are held accountable. We should all be worried about vigilantism, assault, or property crimes that become easier if someone impersonates a police officer. We are taking steps to prevent these crimes to ensure all communities are safe from harm.”

“ICE agents are stoking fear across Washington state and the country, while making us less secure,” Sen. Cortes said. “The FBI has warned of criminals posing as ICE officers and carrying out robberies, kidnappings, and sexual assaults in several states. This is unacceptable and erodes the public’s trust in law enforcement. House Bill 2165 is a critical step in helping us restore that trust so we can keep our communities safe.”

HB 2165 will:

  • Expand the definition of law enforcement to include all federal agents who enforce the laws of the United States and have the authority to detain people — including ICE.
  • Create the crime of false identification of a peace officer, which means;
  • Make a violation a gross misdemeanor, in line with existing law regulating criminal impersonation;
  • Limit the possession of items with law enforcement insignias on them, with an exception for items used in works of art, commentary, satire, and parody; and
  • Ensure legitimate law enforcement officers are clearly identifiable.

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.