DNA Expungement in Washington State

When people say “expungement” in the legal system, they are usually talking about getting a criminal conviction removed from a person’s record. But there is another type of “expungement,” and that is forcing law enforcement agencies to remove from their database any DNA they have collected from you. It usually works like this: 1) The police arrest you and you consent to giving them a DNA sample, or  2) The police get a search warrant from a judge to take a DNA sample from you. Under a new law in Washington, if you are found “not guilty” the police can be forced to remove your DNA from their system. The new law provides:

A person may submit an application to the Washington state patrol to have his or her DNA reference sample data expunged from the WSP’s DNA identification system in cases where: (i) The person’s DNA reference sample was collected and entered into the system and (ii) the charges against the person were dismissed with prejudice or the person was found not guilty.

The law also refers to the authority of a court to order “the destruction of DNA reference samples contributed by a defendant who was charged and acquitted.”  So last month, when I represented a man who was found not guilty by a jury of his peers, I filed a motion with the court asking for the court to order the WSP and the EWU police department to destroy his DNA samples.  A copy of the motion (with the names redacted) can be found here.  Yesterday, I found out the motion was granted and I will next serve the police agencies with a copy of the court’s order.

The right of DNA expungement is important as an increasing number of police agencies across the country move to collect more and more DNA samples from suspects, witnesses and even victims. A new law was proposed by this legislative session in Washington state that would actually require the police to warn suspects that they have a right to have their DNA expunged if they are ultimately found to be “not guilty.”  The  proposed law provided:

An entity collecting a biological sample from an adult charged with a criminal offense or lawfully arrested for a criminal offense when there has been a judicial determination of probable cause, as required in this section, must provide the person with a notice of the rights to expungement…

However, as I mentioned, this law (HB 1138) was not enacted into law because it did not receive enough support. Maybe this will be the subject of future legislation.

Court of Appeals Decision Rules Against WSU in Case of Abdullatif Arishi in Expulsion and Suspension Cases

Two weeks ago, a Superior Court ruled against WSU in the case of Robert Barber, who I represented.  This morning, the Court of Appeals in Spokane ruled in favor of former WSU student Abdullatif Arishi holding that he was wrongfully expelled because he was not give a full hearing on the charges brought against him.  This was a big win by Pullman attorney Steve Martonick who represented the student.  The court ruled that students facing serious allegations on a college campus must be given a full hearing with the right to have a lawyer speak on their behalf and ask questions.  Previously, WSU would allow attorneys to be present but they were not allowed to speak or ask questions of witnesses.

Judge Laurell Siddoway authored the court's decision ruling WSU procedures unlawful.

Judge Laurell Siddoway authored the court’s decision ruling WSU procedures unlawful.

They court of appeals pointed out that expulsion hearings are serious matters for college students, and people face damage to their personal reputations and their academic career.  Additionally, in the case of Abdullatif Arishi, there was the additional consequence of losing a student visa and being deported. WSU argued that Title IX of Civil Rights Act mandated certain other procedures but the court rejected that analysis because the alleged victim of Mr. Arishi was not a student at WSU.

The decision means that in Washington state, when individuals make accusations against another student, they will have to appear in person and face questioning by lawyers in front of a disciplinary board.  Previously, an accuser could not be made to testify and an investigator would speak on their behalf.  I anticipate that the school might try to distinguish this court ruling in instances where the victim of an offense is an actual student at WSU.
The court decision also takes issue with WSU’s practice of allowing police officers or investigators to give an opinion on the credibility of witnesses.  The court ruled that this is unacceptable, and the hearing board itself needs to be making these sort of credibility determinations based on live testimony.
While on its face, the court decision addresses future cases, it is unclear to what extent this precedent can be used to assist students in past cases at WSU.  Typically an appeal would need to be filed to keep this issue alive in each case.  However, if the legal precedent was not available at the time, the argument could be made that past students should be given a rehearing.
The student conduct system at WSU has public criticized in the last few months particularly in the way that it was handled the cases involving student athletes.



Are Chinese Students Being Targeted for Expulsion by Universities for Cheating? (Lawyer’s Perspective)

The number of Chinese students attending universities in the U.S. has tripled in the last ten years. Along with the increase in the number of students, there have been an increase in the number of academic integrity cases brought against these students. An interesting article in the Wall Street Journal addressed this issue, and hinted at the possibility that Chinese students were being profiled and targeted for suspicion at universities in the U.S.

The Wall Street Journal sent public record requests to 50 universities across the country inquiring about the rates of academic integrity violations among international students versus American students. chinese student accused of cheatingOnly 14 schools responded with the data, but among those schools that responded, international students were five times as likely to be accused of cheating. The WSJl interviewed several professors and students, who anecdotally offered that they felt that cheating among students from china was particularly prevalent. The sources attributed this to the fact that Chinese students often arrived in the US unprepared due to the language difficulties (and thus were under more pressure to cheat) and also to perceived cultural differences that viewed cheating as more socially acceptable.

What the Wall Street Journal didn’t discuss was other possible explanations for why the data might be skewed. As a lawyer representing students accused of academic integrity violations, one thing that I have noticed is that the way a case typically starts is a classmate will report the violation. And when a student does report cheating to his professor, it is usually because the student feels like the “cheater” is somehow their rival. (No one reports their friends for cheating.) Chinese students are often safe targets to report. They often will keep to themselves, and they will associate mostly with other Chinese students. Additionally the Wall Street Journal has written in the past about resentment among Americans that the Chinese are taking up spots at state universities that could be going to other Americans.

Some of the academics that spoke to the WSJ about cheating on campus made reference to the fact that some Chinese students would complete assignments that were very similar and had many of the same incorrect answers. However, as we have discussed before, there are other explanations for why students might answer the questions in the same way. Foreign students might all study together, and their interaction with other students may be limited, and they may be slower to ask for guidance from professors or teaching assistants.

Many academic leaders have made statements that make it sound like they are unduly suspicious of Chinese students. Joyce E. Smith, who is the leader of the National Association for College Admission Counseling, stated that with Chinese applicants “there’s a worry about whether the application is authentic, whether the essay is authentic, whether the person who shows up at your door is the same person who applied.”  Much was made of the WSJ and other articles that online businesses exist that offer Chinese students ways to cheat in college in the United States. However, I don’t see how this is fundamentally different when I was in college in the early 90’s and there were advertisements in the back of Rolling Stone magazine offering term papers for sale. Most of students I work with at University of Washington or Washington State University that visit shady websites in China are native-born American students attempting to get fake ID’s so they can go to bars.

Using Statistical Methodologies in Detection of Cheating in Academic Integrity Cases

An an attorney who defends academic integrity disciplinary actions at state universities, I am often ask to give an opinion on charges brought against students for cheating based on similarities of their answers on exams. For example, let’s take a look at the following hypothetical:

A professor suspects two students of cheating, and studies the exam answers for similarities. The professor notes that both students got the same questions wrongacademic integrity lawyer. For example, on a multiple choice exam on American presidents, they both incorrectly answered 1) that Theodore Roosevelt was the longest serving president, 2) that George W. Bush initiated the invasion of Panama, and 3) that James Madison presided of the Civil War. The two students each got all other test questions correct.

To some professors, that would seem to be hard evidence of cheating.  What are the chances of two unrelated students each getting the same answers wrong in the same way, and all other questions correct? Not so fast, say statistical experts. As one statistician has noted:

It is our position, echoed by courts and statisticians alike, that at no time can one accept probabilistic evidence as sufficient merely because the occurrence of some value of a test statistic is highly probable.  Reasonable competing explanation must be considered. The limitations of the mechanistic detection strategies, and the inherent variability in test deign and administration reliability and validity found in all except the most rigors of standardized tests and testing situations, preclude an automatic acceptable of probabilities data as prima facie demonstration of misconduct. 

See, Dwyer, David J.; Hecht, Jefrey B. “Cheating Detection: Statistical, Legal, and Policy” (1994). Available at: http://files.eric.ed.gov/fulltext/ED382066.pdf. The author goes on to explain:

Finally, we must answer the question “is the sample of students being compared merely random or is it representative of the class as a whole?” If the class is comprised of distinct subgroups (by achievement, ethnicity, gender, etc?) then the sample from which we draw an inference must representative of the subgroup(s) as well. It is our opinion that no mechanistic detection method currently available sufficiently address these concerns to an adequate degree, casting doubt as to the utility of mechanistic methods to detect wrongdoing with a known and consistent degree of accuracy.

The problem with using statistical error analysis in academic integrity cases is that often times students will work together preparing for a test in a study group. Preparing for a test in a study group can lead students to all have similar understanding of the material, and this includes possible errors or misunderstanding of the subject, and can lead to similar incorrect answers on an exam. There are legal precedents that support this idea. One such case is the court opinion in Boehm v. Univ. of Pennsylvania Sch. of Veterinary Med., 392 Pa. Super. 502, 573 A.2d 575 (1990).  In that legal precedent a veterinary student at the University of Pennsylvania was accused of cheating, and was ultimately found to have committed the offense.  While the student was found to have been guilty, the university threw out the supposed statistical analysis and ruled:

While the information raises suspicion as to the cheating charges, the panel considers the comparison [of the test answers] to be unreliable due to its lack of statistical foundation particularly since the influence on test scores of studying together is unknown. Accordingly this information was not considered in the panel’s deliberations.

Id, 392 Pa. Super. 502, 516, 573 A.2d 575, 582 (1990) (emphasis added).  Similar statistical reasoning was also  rejected in the case of Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81 (2d Cir. 2011).  In that case three pharmacy students were accused of cheating on a test.  The case described the circumstances as follows:

In support of the charges, Nowak [a teacher] presented evidence, which consisted primarily of  “statistical” charts that she had prepared based on her review of exams taken by Papelino, Basile, and Yu in various courses. Papelino, Basile, and Yu countered with (1) the lack of evidence of the means by which the three might have managed to cheat; (2) the fact that the three studied together, and therefore had similar knowledge bases; and (3) the lack of validity of the “statistical” evidence.

Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 86-87 (2d Cir. 2011).  The case goes on to explain that the Supreme Court of New York rejected such evidence, and “…concluded that the Honor Code Committee’s determinations were based ‘solely’ on a ‘statistical compilation’ that was based upon ‘false assumptions’ and did not provide ‘a rational basis to conclude that petitioners cheated.’” Id at 87.

While statistical similarities can be a starting point for an academic integrity investigation, such proof should not be taken as conclusive evidence by itself.

Remembering Attorney Emma Paulsen

The Omak-Chronicle reported today the death of Emma-Paulsen, the elected Ferry County Prosecuting Attorney. I think I first met Emma Paulsen around 2005 when I first started taking cases in Okanogan County. She worked as public-defender and also did private work on the side. I would have lunch with her on occasion, and she would sometimes fill in for me in court. Her public-defense clients were often very glad to have her, and she would often work until midnight preparing her cases.

Emma Paulsen, Ferry County Prosecuting Attorney

Here is a picture of me, Emma Paulsen, and attorney Anthony Martinez. We all went out to dinner at the Hotel Monaco in Seattle. Emma gave a presentation the next day at the Washington State Bar Association. Her t-shirt read: “I am a lady with the vocabulary of a well-educated sailor.”

In 2014, she moved to Republic, Washington to run for a position I once held, Ferry County Prosecuting Attorney. It is a position that is correctly viewed as a public service. The work hours are long, and the work can be maddening. Her predecessor was known as being lenient, and she made it known that she was going to be a bit tougher. She forged stronger alliances with the local police departments, and would sometime accompany them on ride-alongs so she could learn more about what they did, and also provide them with direction on what she needed from them. She was an excellent lawyer. I will always remember her as a good-natured lawyer who was always on top of her game and rarely lost in court. I have kind of been in a daze since hearing about her death today, but I dug up this picture that I like. I posted this on Facebook, but I wanted to share it with people who are not on Facebook.

Jeffrey Havard and the “Gate-Keeping” Function

“Gate-keeping function.” That is what you call the judge’s role in deciding whether to allow an expert witness to testify. The judge is supposed to screen experts to make sure that what they are saying is scientifically sound. Jurors have a hard time assessing scientific evidence, and are too susceptible to believing whatever an “expert” tells them. When the judge does not properly exercise this “gate-keeping” function, all sorts of things can go wrong.goal-819980_640

A case in point is the Jeffrey Havard conviction. After 13 years the Mississippi Supreme Court has finally conceded that Jeffrey Havard is entitled to a hearing at the trial court level on whether or not the new evidence about the expert witness Steven Hayne’s testimony warrants a new trial. In 2002, Dr. Hayne made several unsupportable conclusions about the way Havard’s girlfriend’s daughter died. He has since clarified and retracted many of the statements over the years, but this has left a 13-year mess and an innocent man still behind bars. See my prior posts about the Jeffrey Havard case here and here.

In 2002, Jeffrey Havard was charged with murder. The pathologist Steven Hayne testified that the death was caused by shaken baby syndrome. Havard’s lawyer asks for a second opinion from an independent pathologist but that request was denied. At the trial, Dr. Hayne testified: “It would be consistent with a person violently shaking a small child. Not an incidental movement of a child, but violently shaking the child back and forth to produce the types of injuries that are described as shaken baby syndrome, which is a syndrome that is known for at least 45 years now.” Years later in an interview with the Clarion Ledger, Dr. Hayne seemed to back away from that conclusion. He later prepared an affidavit for the defense team explaining: “At trial I testified that the cause of death of Chloe Britt was consistent with shaken baby syndrome. Recent advances in the field of biomechanics demonstrate that shaking alone could not produce enough force to produce the injuries that caused the death of Chloe Britt. The current state of the art would classify those injuries as shaken baby syndrome with impact or blunt force trauma.” (Thus consistent with Havard’s explanation that the child accidentally fell and hit her head.)

The change in Dr. Hayne’s testimony coincides with a shift in thinking in the medical community on the subject of shaken baby syndrome. One of the physicians who originally developed the science of Shaken Baby Syndrome published a paper in 2012 expressing concerns about the misapplication of the science. The physician, Dr. Norman Guthkelch, wrote: “While society is rightly shocked by an assault on its weakest members and it demands retribution. But there seem to have been instances where both medical science and the law have gone too far in criminalizing alleged acts of violence of which the only evidence has been the changed clinical state of the infant.” And that is pretty much the Jeffrey Havard case. Extremely shocking allegations that were deeply disturbing to the members of the jury. At his trial, the criminal defense lawyer at the time was denied funding for an independent expert. The only testimony the jurors heard was the flawed testimony of Dr. Hayne, which he later has partially recanted. An independent expert can assist a court in exercising its gatekeeping function by revealing to the judge that the opinion offered by the state’s expert is scientifically flawed.




Police Cameras in Washington State – 5 Years Later

Spokane just announced yesterday that 1/2 of the patrol officers will have to wear a body camera as part of a 6-month pilot project.

5 years ago I wrote a blog post asking if people could really imagine the police in this state wearing body cameras. Back then it was a more theoretical issue – the only police officers using such cameras were 13 officers with the San Jose police department, and that was on a trial basis. Let’s look at the changes that have occurred over the last 5 years.taser-axon_1

San Jose, Then and Now: While San Jose may have been ahead its time in testing the cameras, they are behind the times in the execution. The San Jose police union is still dragging its heals in the implementation of the devices.  Cameras are already being used in the surrounding departments of Oakland, Richmond, Gilroy, Los Gatos, Campbell, Union City, East Bay Regional Parks and BART.

Spokane and Washington State: The jurisdiction that I practice in where I see cameras most often is Pullman, WA.  The Pullman PD requires body cameras for all its officers. Most of the cases are MIP cases, although sometimes the cameras will document resisting arrest, obstructing a law enforcement officer, or other related charges. Throughout much of the state, the cameras are optional, with officers volunteering if they feel the cameras might help them build a case.

The practical effect that I failed to anticipate (5 years ago in my post) was the time that would be required to view all the videos. As a defense lawyer I often spend 2 or 3 hours watching body camera video.  Even for more mundane offenses such as DUI, there may be 2 or more officers with videos from different angles.  The video may depict the driving of the car, the field sobriety tests, the arrest, the long transport to the jail, the booking, the blowing into the breath instrument, etc.  Prosecutors also have pointed out the time that they must spend on each case. Also, when there are issues with a case, the judge must then take his or her time to review the video. Another practical effect that has arisen is the privacy rights of the suspect involved. In Washington state, one individual has filed public records requests for every single video made my all police agencies.

As I mentioned in my blog post 5 years ago, a body camera might discourage police abuse, but there are many times an officer might subjectively believe he is acting appropriately, when others might find the behavior questionable.  For example, this deployment of a taser on an uncooperative suspect in this video raised a few eyebrows:


Spokane Posts Confusing Prostitution Signs

The City of Spokane posted new signs warning of the impoundment of cars and trucks if people are arrested for patronizing a prostitute.

Spokane has erected signs that may turn out to be controversial.

Spokane has erected signs that may turn out to be controversial.

The signs are required by law if a city designates a certain area for tows. The signs are already proving to be the subject of controversy and KREM2 already interviewed someone who didn’t like the signs. The citizen expressed concerns that the signs essentially amounted to advertisements for the prostitutes. You do have to wonder a little bit about the wording of the signs.  “Designated Area of High Prostitution Activity” really makes it sound like this area has been designated as an area where prostitution is legal or tolerated.  And if you read this first clause in conjunction with the next clause “Vehicles used to further prostitution will be impounded” it makes it sound like soliciting prostitutes is ok in the area, as long as it is done on foot. To learn that prostitution is actually discouraged in Spokane, you must look up the laws that the sign sites.

Typically a designated area is where something is allowed. Look for me to raise this argument in court.

Spokane to Tow Vehicles for Prostitution Arrests

The city council for Spokane voted this month to allow the police to tow and impound the vehicles of individuals arrested for solicitation of prostitutes in Spokane city limits.

The Spokane city council considered a map showing the prevalence of prostitution complaints in the area of east Sprague.

Under state law, when a city designates these tow areas, the city must post prominent signs. The signs don’t always make an area look very appealing to tourists. The city designated the following area in the East Sprague Business District: Between the the Hamilton overpass on the west and Fisk on the east.  The southern boundary is I-90 and the northern boundary is the railroad tracks. The new law requires the city to post signs warning of the punishments at the borders of this new zone. The city of Mount Rainer used to have signs the warned of such punishments, but the local business leaders decided that they didn’t want the signs.

The council was motivated by complaints from area residents who were tired of the prostitutes and their customers in their neighborhood. In some instances female residents had been approached by men in vehicles looking for prostitutes.

For more information on prostitution charges, visit our website.

Washington Marijuana Stores: 8 Things Canadians Need to Know Before Visiting

Today is the big day in Washington State. Twenty-two state-licensed marijuana stores will open, including two in Bellingham, Washington. But before traveling south, there are important things Canadians need to know about the complicated legal landscape surrounding marijuana in Washington state.

1.  Crossing the Border

Telling the border agents that you are coming to buy marijuana will not be well-received and will likely get you turned around, if not banned from the U.S. for life.

marijuana stores

Canadians look to potential trips to Washington marijuana stores.

The possession of any marijuana in the U.S. still violates federal law, and explaining the details of your trip will essentially mean you are admitting to entering with the intention of breaking federal law. It is important not to lie either. The border officials can usually pick up on the dishonesty, particularly if you and your travel companions are separated for questioning. The fact is, coming to Washington just to visit a pot store is highly inadvisable until the federal officials change their policy.

2.  Marijuana is Expensive, and There Will Be Long Lines

The novelty of legally buying marijuana may lose its fun after you have stood outside in the sun for 10 hours. Remember that every marijuana enthusiast in the state will be out to commemorate the occasion, and the lines could be very long, and supplies are likely to run out. Marijuana is expected to sell at a minimum of $25 per gram.

 3.  Don’t Forget Your ID

Washington marijuana is only for sale to people over 21 years old, and most stores are planning on “carding” everyone lest they run afoul of the Liquor Control Board. The stores have invested huge sums of start-up capital, and they don’t want to risk lose their license the first week.

4.  No Anonymity

Remember as a first-day customer you are being a part of history. This means the TV cameras will be rolling, and the journalists will be out in droves. If you are standing on a public sidewalk in Spokane or Seattle, you are fair game for any AP photographer that wants to syndicate the photograph all over the world.

5.  No Place to Smoke

It is illegal to smoke marijuana in public, and almost all hotels do not allow smoking. The law intends for customers to bring the marijuana home to smoke. If your home is in Vancouver, you cannot legally bring the product across the border.

6.  Intent to Deliver

Remember that only a store is allowed to sell marijuana. It is against state law for a customer to then sell the marijuana even with his or her friends to spilt the expense. This activity was not decriminalized under I-502, and an intent to do so amounts to possession with intent to deliver.

7.  Marijuana DUI

Part of the initiative that decriminalized marijuana was a provision that made it illegal to drive with over 5 nano grams of THC in their blood. It is hard for someone to know exactly what their THC level is at any particular time. It is likely the police will be out in a show of force the first week the stores are open to make arrests for marijuana DUI.

8.  Be Wary of Marijuana Edibles

As with Colorado there will be stories of infrequent marijuana users ingesting too much THC in edible form.  The drug can take three hours to take effect when ingested orally, and 8 or 10 hours to wear off.  For example, when columnist Maureen Dowd visited a dispensary she ingested a marijuana candy bar that contained 16 doses and ended up “curled up in a hallucinatory state for the next eight hours” and was “panting and paranoid” and convinced that she had died. No stores will be selling edibles this first week because the state hasn’t issued any such licenses yet.

To read our past posts about marijuana decriminalization, click here, or for more information about state drug laws, click here.

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Photo of Steve Graham Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking: www.grahamdefense.com
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