Tag Archives: Whatcom County Criminal Defense Attorney

It’s Time To Apply New & Better Standards for Public Defense Workloads

The State Of Public Defenders Workload: Can AI Fix The People Gap?

With publication of a milestone national study 50 years in the making, the Council on Public Defense (CPD) is immediately beginning to examine how the new research about public-defense caseloads should be applied to Washington’s criminal courts.

“The accused are entitled to an effective advocate and that means a lawyer with time and resources to help. This study underlines what public defenders are experiencing every day, which is a staggering increase in the number and complexity of cases, especially compared to 50 years ago when the national standards were first written. The CPD understands that overworked public defenders impact legal outcomes for the accused and the fairness of the criminal legal system. The CPD has already begun the work of adapting this study to Washington law.” ~Jason Schwarz, Esq., CPD Chair and Director of the Snohomish County Office of Public Defense.

The CPD is a committee of the Washington State Bar Association, established in 2004 to address challenges that impact the state’s public defense system. The Washington Supreme Court tasks the state bar, through the CPD, to make recommendations regarding public defense caseloads and performance guidelines. The Court puts those recommendations into practice in courts via Superior Court Criminal Rule (CrR) 3.1 (Standards for Indigent Defense).

Since its inception, the CPD has regularly recommended updates to CrR 3.1, but the underlying standards are based on a 1973 study from the National Advisory Commission. The new study is the product of a partnership among the Rand Corporation, the National Center for State Courts, and the American Bar Association; it was released on Sept. 12 with comprehensive research that suggests public defenders are working far too many cases and their cases continue to grow more complex. These standards are not binding on any jurisdiction but act as a model.

“The state bar is uniquely situated to convene stakeholders in the legal community to make sure our court rules support actual justice. The Council on Public Defense exemplifies that work and oversees a process that is critically important: Fleshing out standards that will support the state’s constitutional obligation to provide ‘adequate’ legal counsel to anyone facing a criminal charge. What we are talking about here is how long a person might have to wait to get their day in court, and the quality of their defense. Those are among the foundations of criminal justice.” ~Washington State Bar Association President Hunter Abell.

The CPD expects to shepherd the new model standards to present a recommendation for rule changes to the Washington Supreme Court for consideration and adoption. The CPD aims to have draft recommendations by the end of the year.

CPD has been raising the flag about excessive defender workloads for years, and the new study comes amid a flurry of state and national events highlighting the problem:

My opinion? This is excellent and refreshing news. Public defenders have been eagerly waiting for these new standards—for more than 50 years, in fact. The CPD is eager to get to work to bring them to bear in Washington courts. While public defenders are some of the most committed, compassionate, and passionate lawyers, excessive workloads have resulted in burnout and the loss of great advocates and colleagues. Applying this study to the Washington legal landscape will assist us in assuring that assigned counsel have the time to advocate for accused.

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.

National Public Defense Workload Study

With no public defender system, Maine's poor are often represented by private attorneys with criminal backgrounds

In a first of its kind report from the RAND Corporation, the National Public Defense Workload Study says that public defender caseloads are too heavy and unmanageable.

Also, today’s standards for the number of cases that public defenders handle are no longer working, with these caseloads leading to an exodus from the profession. The study recommends new standards be adopted to address the issue and protect the public’s fundamental right to effective legal representation in criminal court.

Researchers conducted a comprehensive review and analysis of 17 state-level public defense workload studies conducted between 2005 and 2022. The research then employed the Delphi method to facilitate the efforts of a panel of 33 expert criminal defense attorneys from across the country. The data quantified the average amount of time needed to provide constitutionally appropriate representation for adult criminal cases.


  • High-severity felony cases required the most time, on average: cases with a possible sentence of life without parole, 286 hours; murder cases, 248 hours; sex crimes cases, 167 hours; and other high-severity felony cases, 99 hours.
  • Mid- and low-severity felony cases required an average of 57 and 35 hours, respectively.
  • High- and low-severity cases for driving under the influence required 33 and 19 hours, respectively.
  • High- and low-severity misdemeanor cases required an average of 22.3 and 13.8 hours, respectively.
  • Probation or parole violation cases required an average of 13.5 hours.


  • The 1973 National Advisory Commission on Criminal Justice Standards and Goals (NAC) standards fail to differentiate among types of felonies, giving equal weight to a burglary, a sexual assault, and a homicide.
  • Using the 1973 NAC standards creates a risk of excessive workloads.


  • The new standards reflect expert attorneys’ experiences with current criminal defense practice, including digital discovery and forensic evidence, as well as the expanded scope of a criminal defense lawyer’s obligations, including advising clients on collateral consequences.
  • The new workload standards can be used to assist public defense agencies, policymakers, and other stakeholders in evaluating defender workloads.

My opinion? Excellent study by the Rand Corporation. Many of my colleagues are highly-trained and extremely capable public defenders. However, public defense attorneys with excessive caseloads cannot simply give appropriate time and attention to each client.

Excessive caseloads violate ethics rules and inevitably cause harm. Overburdened attorneys are forced to choose cases or activities to focus on, such that many cases are resolved without appropriate diligence. A justice system burdened by triage risks unreliability, denying all people who rely on it — victims, witnesses, defendants, and their families and communities — efficient, equal, and accurate 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.

Public Safety Beyond Extreme Sentencing

Long prison sentences are cruel and ineffective: here's the proof - The  Boston Globe

A policy brief from the Sentencing Project explores five social interventions that can improve public safety in the United States without increasing the reliance on mass incarceration.

According to the report, America’s criminal legal system has produced excessive levels of punishment and a diversion of resources from investments that would strengthen the capacity of communities to address the circumstances that contribute to crime.

After 50 years of mass incarceration, the United States faces a reckoning. While crime is far below its peak in the early 1990s, the country continues to struggle with an unacceptable amount of gun violence. Meanwhile, the drug war harms too many Americans and has failed to prevent fatal overdoses from reaching an all-time high.

The report offers five recommendations for policymakers and community members to potentially improve safety without deepening our reliance on extreme sentencing:

  • Implement community safety solutions – Community-based interventions such as violence interruption programs and changes to the built environment are a promising approach to decreasing violence without incarceration.
  • Transform crisis response – Shifting responses to people in crisis away from police toward trained community-based responders has the potential to reduce police shootings, improve safety, and decrease incarceration.
  • Reduce unnecessary justice involvement – Ending unnecessary police contact and court involvement by decriminalizing and diverting many offenses can improve safety.
  • End the drug war – Shifting away from criminalizing people who use drugs toward public health solutions can improve public health and safety.
  • Strengthen opportunities for youth – Interventions like summer employment opportunities and training youth in effective decision-making skills are a promising means of reducing criminal legal involvement.

“A growing evidence-base for all of these interventions demonstrates that policymakers can think beyond police and incarceration to create safety in their communities and should invest in bringing innovative alternatives to scale.” ~The Sentencing Project

Research demonstrates that many social interventions have the potential to be more cost-effective and equitable than criminal legal responses. The highlighted interventions below in violence prevention, crisis response, early childhood education, harm reduction, and therapeutic support for youth are ways to reduce unnecessary contact with the criminal legal system while protecting public safety.

The report emphasizes our opportunity to expand on programs that improve safety while scaling back incarceration.

“By combining social interventions that address some of the root causes of crime and legislative reforms that reduce the harm of the criminal legal system, policymakers can create safer, fairer, and more equitable communities.” ~The Sentencing Project

Excellent research by authors Liz Komar and Nicole D. Porter.

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

“I’m On The Fence . . .”

Buyers and Sellers: Time to Get Off the Fence | Framingham, MA Patch

In State v. Smith, No. 83187-9-I (August 21, 2023), the WA Court of Appeals held that a juror who says, “I’m on the fence” during jury selection should have been excused. If the juror is “on the fence” then the Prosecutor has not carried its burden.


Mr. Smith Nathan was charged with rape of a child in the first degree. During jury selection, Juror #27 was unable to commit to applying the presumption of innocence. When asked whether, if she disagreed with everyone else in the jury, she would be tempted to “change her vote to whatever the rest of the group thinks, even if she personally didn’t feel that way,” Juror #27 answered she would not:

“If I was a 100 percent very confident, then no. But if I was like, I believe this evidence, or whatever, but I am kind of like, on the fence, then I may agree with everyone.” ~Juror #27 (emphasis supplied)

Because Smith had exhausted his peremptories, Juror #27 was empaneled after the court denied his for-cause challenge. Later, Smith was convicted as charged. He appealed his conviction on arguments that the trial judge seated a biased juror.


The Court of Appeals began by saying the accused has a federal and state constitutional right to be tried by a fair and impartial jury. Trial judges have an independent duty to protect that right by excusing jurors who have actual or implied bias. “Actual bias” is defined by statute as “the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.” RCW 4.44.170(2). 

The Court reasoned that being “on the fence” directly implicates proof beyond a reasonable doubt. If a juror is on the fence, the State has necessarily failed to satisfy its burden to prove the elements beyond a reasonable doubt. Simply agreeing with everyone when “on the fence,” means that the State has failed to meet its burden. This result contradicts the instructions on the law and deliberation process.

“There is nothing neutral about the presumption of innocence. Even after correction from the trial court, Juror #27 did not understand her duty as a juror and demonstrated an inability to serve as the law requires. Jurors who exhibit prejudice by being unwilling or unable to follow the law or participate in deliberations are unfit to serve on the jury. A jury should be composed of jurors who will consider and decide the facts impartially and conscientiously apply the law as charged by the court. Jurors who cannot apply the law, including those who cannot apply the burden of proof because they fail to understand it, are not impartial.” ~WA Court of Appeals.

With that, the Court of Appeals reversed Mr. Smith’scriminal conviction.

My opinion? Excellent work by the defense in exhausting their peremptory challenges, moving to excuse Juror #27 for cause and preserving the record for appeal when the judge denied the motion for cause. Constitutional law requires that jurors be impartial. They must fairly evaluate evidence and wait until the end of the trial to decide on a defendant’s guilt in a criminal case.

I’ve chosen well over 40 juries in my career. Finding impartial jurors is extremely difficult. As this case shows, however, it is suitable for all parties – including the Judge and Prosecutor – to excuse impartial jurors as quickly as possible.

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.

Forensic Genetic Genealogy Is Admissible Evidence At Trial

How DNA was discovered and the cases it has helped solve

In State v. Hartman  the WA Court of Appeals held a defendant has no privacy interest in bodily fluids that he “abandons” at a crime scene. A defendant also lacks standing to challenge a search of the DNA of relatives that were voluntarily uploaded to a public database.


In 1986, MW, a 12-year-old girl, was raped and murdered in a Tacoma park. The killer left semen on MW’s body, but his DNA did not match that of any suspects or anyone in police databases for the next 30 years.

In 2018, police enlisted Parabon Nanolabs, a DNA technology company, to analyze the killer’s DNA and to upload it into GEDmatch, a consumer DNA database, looking for partial familial matches that would help identify the killer. Police did not secure a warrant to analyze the abandoned DNA or to compare it with DNA in the GEDmatch database.

Parabon learned that several of the killer’s cousins had DNA in the GEDmatch database. Parabon used information from the database and public records to construct family trees. Parabon then directed police to try to obtain a DNA sample from Gary Charles Hartman. Police obtained a discarded napkin containing Hartman’s DNA, and it matched the DNA from semen on MW’s body. The State charged Hartman with first degree felony murder.

Before trial, Hartman moved to suppress the DNA evidence, arguing that Parabon’s comparison of the DNA sample from the crime scene to the GEDmatch database was unconstitutional. He also asserted that the DNA later collected from the napkin directly linking him to the murder was inadmissible as fruit of the poisonous tree. Hartman did not argue below that he had any privacy interest in DNA left at the crime scene, nor did he challenge the collection and testing of DNA from the discarded napkin.

The trial court ruled that Hartman did not have legal standing to challenge the comparison of the DNA from the crime scene to DNA in the GEDmatch database because he did not have a privacy interest in his cousins’ DNA in the database. In addition, Hartman’s relatives had voluntarily uploaded their DNA into the GEDmatch database, and the DNA that Hartman left at the crime scene was abandoned and not private. The trial court denied the motion to suppress. After a bench trial on stipulated facts, the trial court convicted Hartman.

Hartman appealed his conviction. He argues that analyzing the DNA sample from the crime scene and comparing it with the GEDmatch database to look for his relatives’ DNA disturbed his private affairs in violation of article I, section 7 of the Washington Constitution. Thus, he argues that he had standing to challenge the DNA comparison. In oral argument, he asserted for the first time that he has a privacy interest in the DNA from the semen abandoned at the crime scene.


The Court of Appeals held there is no privacy interest in commonly held DNA that a relative voluntarily uploads to a public database that openly allows law enforcement access.

“Hartman claims a privacy interest in the segments of his DNA that his relatives had in common with him. But all that police learned from the GEDmatch analysis was the killer’s familial relations, which brought them closer to learning the killer’s identity. And identifying unknown family members is the exact reason that users of consumer databases, like Hartman’s relatives, post their genetic material on those databases.” ~WA Court of Appeals.

The Court also ruled there is no privacy interest in DNA that one abandons at a crime scene.

“Voluntary exposure to the public is relevant to our inquiry and can negate an asserted privacy interest.

Consequently, the Court reasoned that Hartman lost any privacy interest in the semen he left behind or the DNA it contained. Therefore, Hartman’s attempt to challenge any DNA analysis of the semen he left behind on MW’s body fails.

With that, the Court of Appeals affirmed Hartman’s convictions.

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

Walmart Begins Adding Police Sub-Stations

Walmart is stealing police services from communities – People's World

Excellent article by journalist Jena Warburton reports that Walmart will soon add police substations to their stores.

It’s no secret that it’s been really tough to be a retailer in a post-pandemic world. Inventory shrink, or a loss of goods due to shoplifting, fraud, and errors is at an industry-wide high. It’s getting harder to hire and keep retail workers, as low wages, demanding hours, difficult customers and workplace violence make roles wholly unappealing.

And crime and violence are on the rise. A recent Retail Workplace Survey by Loss Prevention Magazine indicates that 60% of retail workers saw some form of violence on the job over the past 12 months.

Of all of the retailers hit by a rising tide of crime, Walmart may be hit the hardest. The largest retailer in America has locations within 10 miles of 90% of the population. It’s a cheap and convenient place to shop. But that’s also what’s hindered it.

“Theft is an issue. It’s higher than what it has historically been. We’ve got safety measures, security measures that we’ve put in place by store location . . . I think local law enforcement being staffed and being a good partner is part of that equation, and that’s normally how we approach it. If that’s not corrected over time, prices will be higher, and/or stores will close.” ~Walmart CEO Doug McMillon

According to journalist Jena Warburton, that premonition proved to be true. Just halfway through 2023, 22 Walmart stores had closed as of June. Four of those stores were in Chicago alone (eight were in Illinois).

Some of those fundamental business challenges are violent and nonviolent crimes in more populous or urban areas. It’s also why two Atlanta-based Walmart locations closed, after suspected arson permanently shuttered both the Howell Mill Road and Vine City locations.

Walmart is now planning to reopen the Vine City location – with a major upgrade.


While the Howell Mill Road Walmart will remain permanently closed, Atlanta Mayor Andre Dickens said the former Vine City Supercenter will reopen with a pharmacy, grocery store, and police station to help combat crime and better serve the neighborhood.

Traffic-Related Deaths Are on the Rise

These States Have The Most Summer Driving Fatalities

This year is becoming an increasingly deadly year for traffic-related deaths on Washington roads, according to the Washington Traffic Safety Commission (WTSC) and Washington State Patrol (WSP).

The worsening traffic safety crisis is leading to more deaths at this point in 2023 than the year before, the agencies reported on Aug. 30.

As of July, Washington saw 417 traffic-related fatalities, compared to 413 fatalities in July 2022. According to WTSC, 2022 marked the deadliest year on Washington roads since 1990.

“We have seen more multi-fatality crashes in 2023, which is making this a historically deadly year . . . We are announcing these very preliminary figures because we need everyone’s help right now. Driving sober, driving focused, respecting speed limits, and buckling up are the four best ways to save a life.” ~Shelly Baldwin, Director of WTSC

Officials note the “fatal four” common causes of traffic crashes and deaths as impairment, distraction, speeding and not wearing seat belts. Among the 750 people who died on Washington roads in 2022, approximately 75% of those deaths (565 deaths) involved one or more of the fatal four behaviors, according to WTSC.

While more lives have been lost so far in 2023, WTSC says there have been fewer deadly crashes in total – which means crashes are resulting in more losses of life per crash.

“Saving lives on our highways involves everyone’s participation – and that includes passengers. Driver decisions are an obvious factor in fatal collisions, but passengers have a duty to ensure their own safety by always choosing to buckle up. We need this disheartening trend to turn around, and we cannot do that without everyone’s participation.” ~WSP Chief John R. Batiste

The 90 Dangerous Days of Summer, a campaign educating the public, has found that summer months often are the deadliest stretch of time for drivers in Washington. Throughout Labor Day Weekend, state and local law enforcement officials will increase their presence on the roadways as a safety reminder.

“The power to save lives is in the hands of every driver on our roads,” Baldwin said. “Going into Labor Day and the final four months of 2023, we still have time to change this trend. Please get a sober ride if you have used drugs or alcohol. Higher speeds endanger the lives of everyone, so please respect the speed limit. If we practice these simple safety behaviors each day, we can save hundreds of lives so that they will be here to enjoy the holidays with their family and friends.”

WSP also urges bicyclists to always wear helmets and protective gear while all motorists should always keep a cautionary eye out for pedestrians, bicyclists and other roadway users.

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

Labor Day DUI Patrols In Effect

420 Facelift" planned for WSP Mobile Impaired Driving Unit | Regional |  nbcrightnow.com

The Washington State Patrol reports that with Labor Day Weekend, Troopers will be out patrolling both day and night looking for impaired drivers. According to a survey by the Vacationer, more than 57 percent of Americans will be traveling this weekend. King 5 reports that as of yesterday, the WSP has responded to 70 crashes and 16 calls reporting aggressive driving.

WSP and the Washington Traffic Safety Commission recently reported that 2023 is shaping up to be a “historically deadly” year on Washington roadways.

Over Labor Day weekend in 2022, state troopers responded to a number of dangerous incidents in King County. They included 21 DUI arrests, 448 speeding incidents and 118 collisions, with two fatal collisions. The agency also responded to 232 reports of aggressive driving and 60 incidents of distracted driving.

Officials note the “fatal four” common causes of traffic crashes and deaths as impairment, distraction, speeding and not wearing seat belts. Approximately 75% of last year’s deaths involved one of more of the fatal four behaviors.


The Mobile Impaired Driving Unit (MIDU) will be deployed to process suspected DUI offenders and enable patrols to spend as much time as possible on the roadways. The MIDU is a self-contained 36-foot motorhome that has been turned into a mobile DUI processing center and incident command post. When requested, the MIDU travels across the state in support of law enforcement efforts during DUI emphasis patrols or to emergency incidents such as wild land fires or other natural disasters. It’s a full service police station on wheels.

My opinion? Drive with patience and courtesy and expect more traffic throughout the weekend. And please contact my office if you, a friend or family member are charged with DUI, Reckless Driving or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Can You Drink Alcohol in the Car as a Passenger?

Is It Legal To Drink In A Car If Someone Else Is Driving? You Can In These Lucky States - BroBible

Excellent article in the Tri-City Herald addresses the law regarding vehicle passengers with alcohol. In other words, what if you’re a passenger found drinking alcohol in a car, but your driver has not had a drop? How can you expect police to react? Here’s what the law says.


Under RCW 46.61.519, it is a traffic infraction to drink alcohol in a vehicle on the highway. Even if you aren’t actively drinking, it’s still illegal. You cannot have an open container with an alcoholic beverage in a vehicle on Washington highways.

What counts as an open container? The state law describes it as “a bottle, can, or other receptacle containing an alcoholic beverage if the container has been opened or a seal broken or the contents partially removed.”

Passengers with an open container will be responsible for this infraction, not the driver. But it is a primary violation, meaning you can get pulled over for open containers. Police will pull over cars exhibiting concerning behaviors.

Concerning behaviors include speed, following too closely, impaired and distracted driving. But other infractions, like passengers drinking or smoking in the car, are considered concerning as well.

Additionally, you cannot keep an open container in the car unless it is kept somewhere not normally occupied by passengers, like the trunk. This means opened drinks cannot be kept in the glove or utility compartment “for later.” This infraction falls on the registered owner of the car, or the driver if the registered owner is not present.

It is an additional infraction to try and disguise an alcoholic beverage in order to get around this state code. These traffic infractions come with a fine of $136.

If minors are involved in any of the aforementioned infractions, there is potential for an additional charge for a Minor in Possession of Alcohol. This is assessed on a case-by-case basis, according to Thorson.


There are some exceptions to this, however. The code does not apply for open containers:

  • In public services commercially chartered for group use, like a party bus
  • In the living quarters of motors homes or campers
  • With passengers in a licensed for-hire vehicle (not rideshares), like a limousine
  • When a privately-owned vehicle is driven by a licensed employee under normal work conditions, like a cart girl

As you can see, there aren’t very many exceptions to the laws about open containers. As we’ve seen, the most common one is the outside the passenger area exception. If the open container is in a part of the car that is inaccessible to passengers, it won’t get you in trouble. Generally, this means the trunk.

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

Organized Retail Theft On the Rise

Organized retail crime wave must be stopped | Fox News

Journalist Nathan Bomey for Axios.com wrote an article reporting that people aren’t paying retailers for merchandise. The data suggests that the scale and complexity of Organized Retail Theft schemes seems to be on the rise.


Organized retail crime (ORC) is the large-scale theft of retail merchandise with the intent to resell the items for financial gain. ORC typically involves a criminal enterprise employing a group of individuals who steal large quantities of merchandise from a number of stores and a fencing operation that converts the stolen goods into cash. Stolen items can be sold through online auction sites, at flea markets and even to other retailers.

In addition to targeting stores, ORC gangs engage in cargo theft activities. They also commit other frauds such as using stolen or cloned credit cards to obtain merchandise, changing bar codes to pay lower prices, and returning stolen merchandise to obtain cash or gift cards. ORC is distinct from ordinary shoplifting committed by individuals seeking goods for personal use.

In April, the National Retail Federation reported that retailers experienced a 26.5% increase in organized retail theft incidents in 2021.

“Organized retail theft schemes typically involve careful planning and deliberate targeting, while perpetrators have specialized roles, including inventory management, marketing and sales fulfillment.” ~National Retail Federation

 Retailers are already grappling with an uncertain economy, a shift toward spending on services, and rising labor costs. Clearly, the last thing they need is another threat to the bottom line.

However, it’s also unjust to charge people for crimes they did not intentionally commit. Organized Retail Theft is a crime of dishonesty with the potential to cause major setbacks in people’s lives, careers and trajectories.


Yes. A few common defenses include showing that you did not act with an accomplice or that the value of the property stolen was below the suggested amount. Defendants can also contest an organized theft charge by showing that the police violated one of their constitutional rights. For example, maybe the police arrested an offender without probable cause, or coerced a confession.

In both of these instances, a prosecutor may decide to reduce your charge or drop it altogether.

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