Tag Archives: Whatcom County Criminal Defense Attorney

American Drivers Are Now Even More Distracted By Their Phones

Bellingham Defense Attorney, Distracted Driving, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Distracted Driving Cell Phone Use | Dr. John Lloyd | Motorcycle Crash, Biomechanics, Human Factors Expert

Excellent article by journalist Marin Cogan reports that In the last few years, the data on distracted driving has shown disturbing trends. During the pandemic, American drivers got even more distracted by their phones while driving. The amount of distracted driving hasn’t receded, even as life has mostly stabilized.

THE NUMBERS

Cambridge Mobile Telematics (CMT) Found that both phone motion and screen interaction while driving went up roughly 20 percent between 2020-2022. “By almost every metric CMT measures, distracted driving is more present than ever on US roadways. Drivers are spending more time using their phones while driving and doing it on more trips. Drivers interacted with their phones on nearly 58% of trips in 2022,” a recent report by the company concludes. Additionally, ore than a third of that phone motion distraction happens at over 50 mph.

We’re also spending nearly three times more time distracted by our phones than drivers in the United Kingdom and several other European countries. US drivers spent an average of 2 minutes 11 seconds on their phones per hour while driving, compared to 44 seconds per hour for UK drivers, CMT found.

The company compared the driving behaviors of US and European drivers because road fatalities in the United States surged during the pandemic and European fatalities did not. In 2020, 38,824 people died on US roads. In 2021, that number rose to 42,915 people, and the highest number of pedestrians were killed in 40 years. In 2022, the overall deaths stayed high, around 42,795, among them 7,508 pedestrians. The report also notes how the rise of smartphone use roughly corresponds to the rise in pedestrian fatalities: About 4,600 people were killed while walking in 2007, the year the iPhone was introduced. By 2021, with 85 percent of Americans owning smartphones, the number rose to 7,485.

Department of Justice Prosecutes Someone for Illegally Importing Greenhouse Gases

Bellingham Defense Attorney, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

How to Transport a Fridge by Yourself ((( Part 1 ))) - YouTube

A San Diego man who allegedly smuggled refrigerants into the United States from Mexico is the first in the United States to be prosecuted under a recently enacted law aimed at mitigating climate change. The Department of Justice says the case marks the first prosecution in the United States to include charges related to the American Innovation and Manufacturing (AIM) Act of 2020.

WHAT IS THE AIM ACT?

This law prohibits the importation of hydrofluorocarbons — or HFCs — without approval by the Environmental Protection Agency (EPA). HFCs are a class of potent greenhouse gases commonly used in refrigeration and air conditioning, aerosols, and foam products. Their climate impact can be hundreds to thousands of times greater than carbon dioxide. The AIM Act, enacted by Congress in 2020, authorizes EPA to phase down the production and consumption of HFCs by 85 percent in a stepwise manner by 2036 through an allowance allocation and trading program. The AIM Act also directs EPA to maximize reclamation of HFCs, minimize releases of HFCs from equipment, and facilitate the transition to next-generation technologies to replace HFCs.

WHAT IS THIS CASE ABOUT?

Hart is accused of buying refrigerants in Mexico and trafficking them into the US in his vehicle by hiding them under a tarpaulin and tools. He posted the refrigerants for sale on OfferUp, Facebook Marketplace and other sites.

He faces 13 separate charges, including conspiracy, as well as multiple counts of illegal importation and selling imported goods illegally. He could face a maximum of 45 years in prison if convicted on all of the charges and 20 years if convicted on either of the counts related to illegal importation, according to the Attorney’s Office of Southern California. He also faces fines of up to $750,000.

The indictment also alleges that Hart illegally imported HCFC-22, an ozone-depleting substance commonly used as a propellant and refrigerant. In 2020, such applications of HCFC-22 were phased out in developed countries under the Montreal Protocol because of its ozone depleting properties.

WHY SUCH HARSH PROSECUTION FROM THE FEDS?

In short, Mr. Hart’s Tarrest highlights the EPA’s and Justice Department’s efforts to prevent refrigerants that are climate super-pollutants from illegally entering the United States.

“The illegal smuggling of hydrofluorocarbons, a highly potent greenhouse gas, undermines international efforts to combat climate change under the Kigali Amendment to the Montreal Protocol. Anyone who seeks to profit from illegal actions that worsen climate change must be held accountable.” ~David M. Uhlmann, EPA Assistant Administrator for the Office of Enforcement and Compliance Assurance.

The EPA says potent greenhouse gases are typically used for refrigeration, air conditioning, building insulation, fire extinguishing systems, and aerosols. And the global warming potential of HFCs are exponentially more potent than carbon dioxide, according to the U.S. Attorney’s Office.

My opinion? Yes, it is illegal to import certain refrigerants into the United States because of their documented and significantly greater contribution to climate change. Nevertheless, I doubt Mr. Hart actually intended to unlawfully import greenhouse gases. More likely, he simply attempted to buy and sell used refrigerators and was unaware of the environmental impact of his transactions.

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 Legislature Passes Significant Public Defense Bill

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Public Defenders Urge Legislature to Stop Governor from Cutting Successful Resentencing Program | San Francisco Public Defender's Office

Excellent article in the Seattle Times from journalist Daniel Beekman discussed the passage of Senate Bill 5780. The legislation is a huge win for WA state’s beleaguered criminal legal system. It won early support in the Senate but stalled before last Friday’s deadline to pass the House. Fortunately, it prevailed at the last minute only after a Seattle Times story spotlighted the public defense crisis. It is now headed to Gov. Jay Inslee’s desk to be signed into law.

WHAT IS THE CRISIS AND WHY DOES IT EXIST?

When you’re accused of a crime and don’t have enough money to pay an attorney, the government is supposed to provide you with one. It’s a constitutional right. But many Washington communities are struggling to hire and retain public defenders and to keep up with cases (statewide rules cap the number of cases a defender can handle each year). So some defendants are going without proper representation, even while in jail, and some prosecutions are getting delayed or dismissed. In some places, prosecutors are in short supply, as well.

The crisis exists because the COVID pandemic created backlogs, fewer people are going to law school, young attorneys are choosing other jobs, attorneys certified for high-level felony cases are burning out and policing changes are making cases more time-consuming, among other reasons.

Rural areas and Eastern Washington communities such as Yakima and the Tri-Cities have been hit especially hard, partly because they lack amenities and resources to compete with private sector employers for qualified attorneys. Unlike most other states, Washington relies on its counties to fund their own public defense services, and those costs have grown in recent years.

WHAT DOES SB 5780 HOPE TO ACCOMPLISH?

SB 5780 is meant to combat rampant staffing and caseload challenges that are pushing Washington’s public defense apparatus to the brink of collapse and simultaneously threatening prosecutorial operations. The legislation helps recruit and train more attorneys for crucial jobs in public defense and prosecution.

The bill directs state agencies to set up internship programs for aspiring public defenders and prosecutors in rural and underserved areas. It also directs the agencies to provide training to early-career public defenders and prosecutors. More specifically, SB 5780 calls for the state’s Office of Public Defense to administer a “law student rural defense program.” The program places students and recent graduates as interns with experienced public defenders in underserved communities. Similarly, it calls for the state Criminal Justice Training Commission to oversee a “law student rural prosecution program” placing interns with prosecutors. The interns are supposed to get mentoring, pay and housing stipends, and supervising attorneys may receive some money for their time.

The bill also expands the Criminal Defense Training Academy and the Criminal Justice Training Commission. These organizations train early-career public defenders and prosecutors.

My opinion? The legislation is a step in the right direction. Studies show public defenders face extremely heavy workloads that prevent them from providing effective legal representation to people accused of crimes.

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

Bellingham Police Seek Rapid DNA Technology

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Snapshot: S&T's Rapid DNA Technology Identified Victims of California Wildfire | Homeland Security

The Bellingham Herald reports that the Bellingham Police Department is applying for a federal grant to buy a rapid DNA machine. The hope is that it will help solve crimes without the current delays of up to a year at the state lab.

A rapid DNA machine can produce results in 90 minutes to two hours, Bellingham Police Chief Rebecca Mertzig told the Bellingham City Council at a meeting Monday night. Mertzig said the machine could be useful in two ways:

▪ In a criminal investigation, the results of DNA evidence from a suspect or person of interest at a crime scene could be entered into a national database to check quickly for a match to a convicted criminal.

▪ For victims, it could provide faster identification of unrecognizable human remains.

“We would use this to generate investigative leads. It does not replace traditional DNA processing, so if we were to get a match during this rapid DNA system, we would still send a sample to the lab for comparison testing using the traditional way,” Mertzig said. “Arrests are not made solely on rapid DNA identification. We’d have to have other evidence, and the standard is still probable cause in order to make an arrest.”

WHAT IS A RAPID DNA MACHINE?

Rapid DNA, or Rapid DNA analysis, is a fully automated process of developing a DNA profile from a mouth swab. This happens in 1-2 hours—without the need for a DNA laboratory or any human intervention and review.

The technology enrolls a qualified arrestee’s DNA profile in CODIS/NDIS during the booking process. NDIS is the national level of the CODIS system. The arrestee is searched against all unsolved crimes within 24 hours.

In addition to searching CODIS, arrestees are searched against the DNA Area of Special Concern (DISC). The DISC contains complete crime scene profiles from unsolved homicides, sexual assaults, kidnappings, and terrorism incidents. DISC profiles can be searched in near real time during the booking process.

A match to a DISC profile will result in an immediate notification to the booking agency, arresting agency, and investigating agency. This technology allows law enforcement to receive investigative leads while an arrestee is still in custody, possibly preventing additional violent crimes.

THE ACLU’S ARGUMENT AGAINST RAPID DNA MACHINES

According to the ACLU, the design and use of these machines are largely unregulated. That should be cause for concern for several reasons. First, Rapid DNA machines are likely to increase the risk of misidentification and wrongful conviction. Second, “cheap and easy to use” machines are a perfect recipe for overuse, particularly when it comes to sensitive technologies in the hands of the government.

Third, Rapid DNA machines are likely to encourage the growth of government DNA databases, putting some of our most sensitive information in government hands. Fourth, the easy availability of DNA testing through these machines is likely to exacerbate existing problems with the criminal justice system. These problems include racial disparities in DNA collection that exist because our criminal justice system disproportionately suspects, arrests, and convicts people of color.

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

WA House Defeats Bill Allowing Judges to Dismiss Low-Level Crimes

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Understanding how a California bill dies without public debate - capradio.org

Last week, the House decided to kill HB 1994, a bill relating to judicial dismissal of a misdemeanor following the completion of court-ordered conditions.

WHAT DID HB 1994 HOPE TO ACCOMPLISH?

Under the legislation, either the prosecutor or the defense attorney must first ask the judge to divert a defendant out of the criminal justice system. The defendant must agree to certain court conditions, such as engaging with service providers or treatment, and then, after up to a year of court monitoring, the judge can dismiss the case.

If passed, this bill would only have applies only to the lowest of low-level crimes. Judges could not dismiss charges in cases involving domestic violence, stalking, DUI, Assault or Firearms. The law also would not apply when a person pleads down from a felony charge to a misdemeanor.

If passed, the bill would also have potentially helped reduce the number of people with mental illness languishing in jails. This practice that has cost the state hundreds of millions of dollars in federal fines.

Rep. Darya Farivar (D-Seattle) called House Bill 1994 a pretty “reasonable” piece of legislation that didn’t deserve backlash. The bill simply asks prosecutors to justify their prosecution of low-level offenses. This is especially important when it comes to cases involving people who committed a crime as a result of poverty, addiction, or a mental illness. Farivar hopes to end the practice of just sticking people with behavioral health problems in jail over and over again, and instead allow courts to address the root causes of criminal behavior prior to conviction.

The bill has the backing of the Governor’s office, as it could help the state come into compliance with the Trueblood v. DSHS settlement. This WA Supreme COurt case requires the Washington State DSHS to provide timely mental health restoration to people in jail. About 11% of Trueblood class members enter the criminal justice system on misdemeanor charges.

WHY DID THE HB 1994 FAIL TO PASS?

According to the Stranger, KING 5 and the Seattle Times played misrepresented the legislation. At the end of the day, the legislation lacked momentum and political will.

Please contact my office if you, a friend or family member are charged with a crime. Dismissals of low-level charges are possible under Compromise of Misdemeanors, Knapstad Motions, Deferred Prosecutions and other avenues. Hiring an effective and competent defense attorney is the first and best step toward justice.

Cannabis Advocates: Biden is Missing an Opportunity Legalize Marijuana

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, Legislation, marijuana, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Why Joe Biden's Marijuana Move Is a Midterm 'No Brainer'

The Hill reports that President Biden is missing an opportunity to sway young voters with his reluctance to take bigger steps to legalize marijuana at the federal level.

While campaigning for the White House in 2020, Biden said, “No one should be in jail because of marijuana. As President, I will decriminalize cannabis use and automatically expunge prior convictions.”

Cannabis advocates say the Biden administration has opened several avenues for marijuana reform. These include issuing federal pardons for simple possession and starting the process of potentially rescheduling marijuana’s status under the Controlled Substances Act from Schedule I to Schedule III.

But those measures have failed to excite advocates. They now say Biden is falling short of his 2020 campaign promises and failing to address the disparate overcriminalization of the drug that has unduly impacted minority communities. Progressive lawmakers in the Senate are urging the administration to go further and completely deschedule the drug. Legalization it would effectively decriminalize it at the federal level, as opposed to rescheduling it.

“Marijuana’s placement in the Controlled Substances Act] has had a devastating impact on our communities and is increasingly out of step with state law and public opinion,” 12 Democratic lawmakers wrote to the Drug Enforcement Administration (DEA) last month.

IS THERE POLITICAL WILL TO LEGALIZE MARIJUANA?

Public opinion is strongly in favor of marijuana legalization. A Gallup poll from November found a record 70 percent of Americans believed marijuana should be legal.

More recent polling from Lake Research Partners backs up public support for federal marijuana reform, with 58 percent supporting a rescheduling to Schedule III, compared to 19 percent who opposed the move.

“It’s a really strong issue with some constituencies that Democrats really need to increase their support and enthusiasm, specifically young people, African Americans, Democratic base voters, people of color, young men of color,” said Celinda Lake, a Democratic pollster and strategist who serves as president of Lake Research Partners.

Hayley Matz Meadvin, Executive Vice President of Communications at Precision Strategies and a former Biden administration staffer, noted the “supermajority of support” behind marijuana legalization could help Biden lure in voters across the political spectrum.

“This is a popular issue that motivates voters, and it doesn’t just motivate — it clearly just doesn’t motivate exclusively Democrats. And that will be critical this fall.” ~Hayley Matz Meadvin, Executive Vice President of Communications at Precision Strategies

THE POLITICAL LANDSCAPE

Biden and Trump, his likely 2024 rival, are polling neck and neck both nationally and in key swing states. The election could come down to a few thousand voters in those states, potentially giving niche issues such marijuana added importance.

Advocates say his actions so far fall short of that promise. And they said he may struggle to clearly communicate any progress on marijuana reform, especially as some actions are left unfinished; the DEA has yet to issue its decision on rescheduling marijuana, and the federal pardons issued last year could not apply to state-level convictions, though Biden has encouraged governors to follow his lead.

While marijuana reform may not be among the issues expected to dominate the 2024 elections, strategists note that smaller issues frequently break through the noise during election cycles.  Perhaps substantial marijuana reform action from Biden would signal to voters he is a “modern president” and could make a difference in states including Arizona, Michigan, Nevada and Wisconsin.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. As of now, possessing marijuana is still a federal crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Citing “Aloha Spirit,” Hawaii Bans Open Carry of Firearms Without a Permit

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Guns.com Hawaiian Shirt - For Sale :: Guns.com

According to The Guardian, the Hawaii’i Supreme Court, citing the state’s “Spirit of Aloha”, has ruled that a person can be prosecuted for carrying a gun in public without a permit. This decision comes in an apparent rebuke to the US Supreme Court’s efforts to expand gun rights.

In State of Hawaii v Christopher Wilson, state supreme court of Hawaii reviewed a 2017 case against Christopher Wilson, who had an unregistered, loaded pistol in his front waistband when police were called after a Maui landowner reported seeing a group of men on his property at night. The court denied the man’s request to dismiss weapons possession charges on grounds that they violated a right to bear arms enshrined in the US constitution in 1791.

“The spirit of aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities . . . The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others.” ~Justice Todd Eddins, Hawaii Supreme Court

WHAT IS THE “SPIRIT OF ALOHA?”

Under 1986’s Hawaiian Spirit Law, the state mandates that state officials and judges treat the public with “aloha spirit.” In short, this ethos is described as the coordination of the heart and mind to foster connectivity and peace that calls for contemplation and presence of five life-force traits: “akahai” (kindness, expressed with tenderness); “lōkahi” (unity, expressed with harmony); “oluʻolu” (agreeableness, expressed with pleasantness); “haʻahaʻa” (humility, expressed with modesty); and “ahonui’” (patience, expressed with perseverance).

The Wilson case has been winding its way through the court system, with the plaintiff claiming that he had legally purchased the weapon in Florida in 2013. But Wilson had not registered the gun in Hawaii, which has some of the nation’s strictest gun laws, and had not obtained or applied for a permit. The case made its way to the state’s supreme court after the US supreme court further relaxed restrictions on gun ownership via the New York State Rifle & Pistol Association v Bruen case in 2022.

The ruling does not throw out the concept of the right to bear firearms.  Rather it establishes that states may retain the authority to require people to obtain a permit for their firearm before they may carry it in public.

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

Deadly Vehicular Crash Data in Whatcom County

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Vehicular Assault, Vehicular Homicide, Whatcom County Criminal Defense, , , , ,

Motorcyclist dies after collision with car in Bellingham - YouTube

Bellingham Herald Journalist Robert Mittendorf reports that deadly car crashes fell by half in Bellingham last year. These levels return to pre-pandemic levels after a two-year spike. Four people died in crashes within Bellingham city limits last year, down from eight traffic deaths in 2022 and nine in 2021, according to data from the Washington State Department of Transportation, which collects reports from police agencies statewide.

Overall there were more than 200 fewer crashes last year in Bellingham, as the total dropped from 1,136 in 2022 to 902 in 2023 — a 10-year low. WSDOT’s data system includes crashes on Interstate 5 and state highways such as Meridian Street (State Route 539) within the city limits. Factoring in only city streets, Bellingham had 527 total crashes. This is down from 709 in 2022 — also a 10-year low.

One pedestrian and no bicyclists were killed by cars in 2023. There were 23 such crashes last year as part of a steady annual decline after a high of 76 total bike and pedestrian crashes in 2017.

Bellingham’s lower fatality rate is in contrast to state and nationwide trends. Apparently,  more people in WA State died in traffic accidents as people drove faster and automakers built bigger and heavier trucks and SUVs. The death toll on roads statewide in 2023 topped a 30-year high set last year, according to WSDOT. Whatcom County crash statistics remained mostly flat, reflecting a three-year trend.

Former Mayor Seth Fleetwood made traffic safety a priority from 2020 to 2024, and Public Works has hired three new staff members in its Traffic Division, Johnston said. Bellingham will be examining the speed of cars and speed limits on city streets this year. This effort includes data collection, public education and law enforcement. On the enforcement side, one possible new measure could be speed cameras in school zones.

Even as deadly crashes in just the city of Bellingham declined last year, traffic fatalities rose slightly in Whatcom County as a whole, according to WSDOT. At total of 18 people died last year in crashes on roads of all types across Whatcom County, from city streets to Interstate 5. Two pedestrians were killed among 48 total crashes involving people walking and cycling in 2023. This represents a sharp decline from the eight pedestrian deaths in 65 total crashes in 2022 — also a 10-year low.

Traffic fatalities are tragic. Please contact my office if you, a friend or family member are charged with Vehicular Assault/Homicide, or Reckless Driving. Hiring an effective and competent defense attorney is the first and best step toward justice.

Animal Cruelty Bill Heads to the Senate

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Craven County homeowners charged with animal cruelty after 42 dogs removed, two euthanized | WNCT

On Monday, the Washington House of Representatives passed a proposed bill that would increase penalties for animal cruelty cases. The bill would elevate the punishment for first-degree animal cruelty. The bill passed 95 to 1. It now heads to the Senate for further consideration. State Representative Sam Low, a Republican representing the 39th legislative district, is sponsoring the bill.

“Elevating to a ranked crime would add it to the sentencing guidelines grid, creating consistency for the judges and prosecuting attorneys,” Low said.

“Inconsistency in sentencing only benefits abusers. House Bill 1961 would establish a clear legal framework for these horrific cases, ensuring those who inflict suffering on defenseless animals face consequences that reflect the severity of their crimes . . . Washington state should always stand for justice and compassion for all living beings. Through this bill, we have an opportunity to give a voice to the voiceless and deter future acts of cruelty. I am grateful for today’s vote and look forward to seeing the same outcome in the Senate.” ~State Representative Sam Low

The proposed legislation would enhance first-degree animal cruelty to a ranked felony. Ranked felony offenses have a seriousness level assigned to them. In short, higher-ranked offenses bring more serious consequences. These levels range from Level 1 (lowest level) to Level 16 (highest level). For a Level 1 offense, for someone with an offender score of zero, their standard range is 0-2 months, if convicted of the offense. By comparison, a Level 7 felony offense for someone with an offender score of zero, is facing a standard sentencing range of 15-20 months.

Surprisingly, animal cruelty is a complex phenomenon. It involves a multitude of different situational factors, motives, and other potential cause. The most frequently reported forms of animal cruelty are related to neglect. Denial of food, water, and veterinary care occurs in many cases. The most common forms of animal cruelty are the restriction of movement, insufficient food or water, abandonment, neglect, lack of veterinary care, and assault. There is no single type of companion animal cruelty offense, nor is there one typical type of companion animal cruelty offender.

There are, however, defenses to lower-level  charges. For example, it is a defense to a charge of second degree animal cruelty that the defendant’s failure was due to economic distress beyond the defendant’s control. This can happen if the animal’s owner is  indigent, impoverished and/or simply cannot afford to care for the animal.

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.

Recording An Inmate’s Conversations with Defense Counsel is Unconstitutional

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Eavesdropping – (California Penal Code Section 632)

In State v. Couch, the WA Court of Appeals held a jailed defendant’s constitutional rights were violated when jail officials recorded multiple jail calls made between the defendant and counsel, video-recorded several meetings between the defendant and counsel, and opened at least one piece of legal mail.

BACKGROUND FACTS

The State charged Mr. Couch with second degree rape-domestic violence and second degree assault-domestic violence after he allegedly forced his former girlfriend to have sex with him after she broke off their relationship.

Before the trial began, Couch filed a motion to dismiss for governmental misconduct under CrR 8.3(b). Couch claimed that the Grays Harbor County Jail had illegally recorded conversations between him and defense counsel and had opened his legal mail. The trial court held a hearing on the motion and heard testimony.

The trial court denied Couch’s motion to dismiss. Later, the jury convicted Couch of second degree rape and second degree assault. Couch appealed on arguments that state actors unlawfully intruded on his communications with his attorneys and that the trial court erred because it did not require the State to establish the absence of prejudice beyond a reasonable doubt.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying the Sixth Amendment guarantees a criminal defendant the right to the assistance of counsel, and that right includes the right to confer privately with their attorney. A state actor’s intrusion into private conversations between attorney and defendant violates this right. There is no distinction between an intrusion by jail security and an intrusion by law enforcement.

Furthermore, if a state actor has violated the defendant’s Sixth Amendment right, prejudice to the defendant is presumed. Because the constitutional right to privately communicate with an attorney is a foundational right, the State must be held to the highest burden of proof to ensure that it is protected.

Intruding on confidential attorney-client communications constitutes misconduct under CrR 8.3(b). This court rule states that the trial court may dismiss a criminal prosecution due to governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.

The Court of appeals reasoned that state actors intruded on Couch’s communications with his attorneys in violation of his Sixth Amendment right to confer privately with those attorneys. Here, the Grays Harbor County Jail (1) recorded multiple telephone calls between Couch and Rivas, (2) video recorded several meetings between Couch and his attorneys, and (3) opened at least one piece of legal mail.

“Therefore, the trial court was required to presume prejudice to Couch,” said the Court of Appeals. From there, the only question for the trial court – the truly correct legal issue – was whether the State proved beyond a reasonable doubt that Couch was not prejudiced when addressing Couch’s motion to dismiss. Therefore, the trial court erred in analyzing Couch’s CrR 8.3(b) motion to dismiss.

With that, the Court of Appeals reversed Couch’s conviction and remanded for the trial court to determine whether to dismiss the case or order a new trial with sufficient remedial safeguards.

Jail is a terrible place. Not only are the conditions deplorable, but privileged conversations with attorneys run the risk of being recorded. Please review Making Bail and 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.