Professor Addresses Cutbacks in Methadone Program

I have blogged in the past about the Oxyontin robbers of Spokane and vicinity – see “String of Oxycontin Robberies”, “Challenge to Robbery Suspects” and “Robberies of Pharmacies“.  The legislature and local law enforcement seem to be at a loss as to how to control these crimes.  The idea was floated last year of increasing the penalties for pharmacy robberies.  When I called an acquaintance who works with the legislature, she told me that increased penalties were off the table.  The state was broke and the prisons were full.  As we know the State is closing prisons because of the budget deficit.

There was a good opinion piece in the newspaper today by Jamie Tobias Neely about some other drug related cutbacks.  Neely, who teaches at Eastern Washington University, wrote here about how recovering addicts were getting kicked out of the methadone program because of cutbacks.  I guess I had heard about the proposed cuts in the county’s methadone program last summer, but hadn’t heard the latest.

When Oxycontin robberies are covered in the press, you can tell by reader comments how the public feels about the subject.  There is no understanding about the nature of addiction, and the comments simply cry out for longer prison terms.  Some people find amusement at what they perceive as the stupidity of the robbers.  The fact of their desperation of the addicts is lost.  Last year, an Iraq War vet in Spokane robbed a store for Oxycontin.  Others have robbed for methadone.   Take a look at all the articles in the Spokesman-Review tagged with the term “Oxycontin“.  The stories in the aggregate make clear what can be missed by just reading one story at a time.  The addicts come from all walks of life, they often led productive lives prior to addiction, they often get started when the drug was proscribed, and they were so sick at the time of the robbery that no anticipated prison sentence would likely deter them.

Jamie Tobias Neely tells the rest of the story.  Addicts are getting kicked out of the methadone program and on to the street due to budget cutbacks that are penny-wise and pound-foolish.  Although it is possible to get a methadone prescription from a doctor, many doctors are obviously apprehensive about dealing with opiate addicts.  The Spokane methadone program requires urinalysis testing, and offers counseling.

Washington State anticipates having to close prisons,  and Spokane just laid off a number of prosecutors and public defenders.   When the addicts are kicked out of the methadone program who will be around to handle the court cases?

Steve Tucker Puts Election Challenger on Leave

It looks like he took the day to think about it, but Spokane Prosecutor Steve Tucker closed the week by putting David Stevens on leave.  David Stevens, a deputy prosecutor in Tucker’s office,  announced a short time ago that he would run against his boss in the 2010 election.  See yesterday’s post.    Tucker seemed to be predicating the disciplinary action on the fact that Stevens criticized him publicly.  See Spokesman article.  From a legal standpoint disciplining an employee for running for office could be problematic.  In many prosecuting attorney offices, the deputies serve at will, and can be fired at any time as envisioned by RCW 36.27.040.  However, this general rule is trumped by any specific union contract or personnel policy in effect in the particular office.

Elected prosecuting attorneys usually face a lose-lose proposition when a deputy runs against them.  The elected prosecutor can fire the deputy and look mean and vindictive and face a lawsuit, or he can keep signing the paychecks as his employee trashes him on the campaign trail.  Keeping the election challenger on the payroll usually splits the office into two different camps, and productivity plummets.

Do want to see what a recent interoffice election battle can do to a prosecutor’s office?  Check out Grant County.  In 2008 elected prosecutor John Knodell quit after 5 terms to serve as a judge.  Therefore the commissioners appointed Deputy Prosecutor Angus Lee to replace him, and many more senior lawyers quit, and one was fired.  Another deputy prosecutor, Albert Lin ran against him.  Angus Lee didn’t fire him, and the office was largely split into two camps of Albert Lin supporters or Angus Lee supporters.  I blogged a little about it here and here, but the definitive article is The Albert and Angus Show.   (It seems like Angus Lee is now getting the office back on track.)

While I am sure Steve Tucker was not excited about being called “an absent administrator”, it gets worse.  During the Grant County election one deputy prosecutor called Angus Lee a “c**k sucker.”  See source.

The bottom line is if you are going to run against your boss, you should quit.  This is true of any county courthouse position.  This is particularly true if you will be publicly criticizing your boss.  If you run for office to improve the office, it is not fair to stick around and cause deep rifts that ruin productivity.  A campaign is a major distraction.   I suppose ideally you would get fired, collect unemployment, have lots of time to doorbell, play the martyr, and reserve the right to bring a lawsuit.  But that is in your interest, not the public’s.

However, if the election challenger does not do the right thing and quit, the elected is not advised to fire him for that reason alone.  The legal authority is too murky in this area, particularly where there is a union contract.  It is probably nice not to have your opponent in your office spying on you, but if a suit is filed it will be the public who ends up paying the price.

What do you think?  Should election challengers stay or go?  Can an employee really mount a challenge against his or her boss without harming the office as a whole?

Attorney David Stevens Challenges Steve Tucker for Spokane Prosecuting Attorney

The Spokesman-Review reported this morning that attorney David Stevens was challenging his boss Steve Tucker for the elected position of Spokane County Prosecuting Attorney.

Attorney David Stevens

Attorney David Stevens came out swinging, and was quoted as characterizing his boss as “an absent administrator” and saying that he has seen a “total lack of leadership.”   The reporter for the Spokesman-Review, Jonathan Brunt, asked Steve Tucker if David Stevens could be let go, and Tucker reportedly said “all options are on the table.”

It will be interesting to see the fireworks in this campaign.  Attorney David Stevens has run for about a zillion elected positions in the past.  You have probably heard his name before.  Here is the tally if you haven’t been keeping track: In 2004, he ran unsuccessfully against Democrat Alex Wood for, who won the 3rd District legislative race.  Part of his campaign was to oppose gay marriage.  See source.  In 2006, he ran for District Court Judge in Spokane against Harvey Dunham and lost.  In 2008, he ran unsuccessfully against Linda Tompkins for Spokane Superior Court Judge, arguing that the bench needed more former prosecuting attorneys.

David Stevens is a 1999 law grad from UW.  Although he has lost all his races in the past, he has always been able to garner a fair amount of endorsements in the past.  It doesn’t seem that he has a web page yet for his latest race.  In 2008, when the Spokane County Bar Association attempted to conduct a poll of lawyers on the potential judicial candidates, David Stevens refused to participate.

I blogged about David Stevens last December on the subject of his questionable decision to send a man to prison for 2 1/2 years for stealing a can of sardines from Rite-Aid.  See post.  I am a former prosecutor and there is something to be said for being tough on crime, but I really wonder about the wisdom of Stevens’ decision to use a prison bed on a sardine thief.  There are just too many other violent criminals that ought to be in there.

What do you think?  Is David Stevens the right man for the job?  Will any defense lawyers run for prosecutor this year?  Was Stevens right to tie up a jail bed for 29 months for the guys who stole sardines?

Lawyers look at Toyota Recall Issue Expands to Different Models and Years

Toyota vehicles have had a reputation in recent years as being pretty well made.  That has been in jeopardy recently when Toyota has announced the recall of several of their vehicles.  According to the Spokesman-Review this morning, the National Highway Traffic Safety Administration is looking into allegations of momentary loss of braking capability in the Toyota Prius while traveling over uneven road surfaces, potholes or bumps.  Hey, those roads kind of sound like the roads of Ferry County don’t they?  Or even worse the pothole ridden roads of the city of Spokane.  Additionally, there has been a problem with the Toyota’s suddenly accelerating for no reason.  Much of the investigation has come from reporters from the LA Times and trial lawyers who have been researching the safety records of these cars. According to an LA Times blog:

Reporters Ken Bensinger and Martin Zimmerman first wrote about an upcoming recall by Toyota on Sept. 30 that blamed floor mats for causing a gas pedal to stick. This came in the wake of a horrific crash near San Diego in August that killed an off-duty California Highway Patrol officer and three members of his family after his Lexus sped out of control.

Trial lawyers are already advertising their interests in taking such cases, see here, for example.  I can predict the class action suit settlement already.  The lawyers get $5 million dollars attorney fees, and the three people killed in the San Diego crash get coupons for floor mats.

What is interesting, is it is actually pretty hard to find a definitive list of what cars are actually subject to recall.  The Toyota Press Room explains:

The specific model names and years associated with the newly-expanded population of subject vehicles for the pedal entrapment recall include:

2008-2010 Highlander
2009-2010 Corolla
2009-2010 Venza
2009-2010 Matrix
2009-2010 Pontiac Vibe

I am not sure that is definitive.  You think Toyota would have this information on line and that it would be pretty easy to find.  What will come of the recall?  Will the problems be found to be broader then first announced?  Will the Toyota brand take a permanent hit?

(By Steve Graham, a Criminal Defense Lawyer)

Judge Brett C. Klein Disciplined for Decision in Class Action Case

Have you ever been a party to a class action suit?  One time my father was.  An airline screwed him and thousands of other travelers by fixing their prices in violation of anti-trust statutes.   When I was a kid, my father used to fly about once a week at times, so he joined the suit and figured he had some money coming.  Nope.  The attorneys settled the case, reaped huge attorney fees, and all my dad got was  a coupon for about fifty dollars to be used on a future flight.  The coupon had so many restrictions on its use that it was virtually worthless.  My dad wasn’t happy.  This was about 20 years ago, but problems continue with these suits.

In 2001 Block Buster video opted to  settle a class-action lawsuit over late fees, and the attorneys suing Blockbuster agreed that Blockbuster should issuing coupons to the plaintiffs for free or dollar-off movie rentals.  The Texas attorneys that settled the suit saw to it that settlement gave them $9.5 million in attorneys fees.  Critics attacked the settlement as another glaring example of what is wrong with a system whose prime beneficiaries are the lawyers.

I thought of this recently when I read in The Olympian this morning about a California judge who fought back against the system.   An attorney attempted to settle a class action suit against a woman’s clothing store that violated credit card laws.   He proposed a settlement where he would receive $125,000 cash and the women would get $10 coupons.  Judge Brett C. Klein instead ordered that the male attorney would instead get $125,000 worth of non-transferable coupons for women’s clothes.   The attorney wanted to be paid $395 per hour and instead got coupons.  Pretty funny, huh?  The California Bar didn’t think so.  As announced in the news story here, the judge was accused of grandstanding by releasing the story to the newspaper.  The judge didn’t care as he was about to retire and even agreed to the discipline action rather than fight it.  If the judge wanted to draw attention to class action coupon scams, he definitely succeeded.  The story has been picked up by the wire service and is all over the country now.  If you want to read the decision admonishing the judge, it is online here.

My dad would love it.

Here in Washington, there has been criticism of similar class action settlements.  In the case of Picket vs. Holland America cruise line, Justice Sanders of the Washington Supreme Court complained about a proposed settlement.     In his dissent, Justice Sanders explained:

The settlement would offer discount coupons having virtually no practical value to class members. Although Holland claimed the 1.5 million coupons offered had an aggregate face value of $ 20 million, the conditions placed on redeeming these coupons, coupled with the nature of Holland’s price schedule, ensured only a miniscule portion of these coupons would ever be used, and even then only if a class member paid Holland thousands of dollars for future trips. The coupons ranged in value from $ 10 to $ 50 and were subject to a so-called “capacity control” restriction, meaning they could be used only on travels booked less than 45 days from departure. However Holland frequently sells its cruises on an early-purchase, reduced-fare basis. Savings under this early-purchase scheme range as high as 20-25 percent of the ticket price, which sometimes goes as high as $ 5,000. Naturally, reasonable travelers will not forgo such large savings to receive a coupon credit of only $ 10 because early-purchase discounts would more than offset whatever illusory benefit might be achieved from the settlement.

What a racket.  The so called coupons are really pretty worthless.  What do you think?  Time for a little reform?  Did Judge Klein bring attention to this issue agreeing to be disciplined by the California Bar?

Okanogan County Welcomes New Private Investigator

I have had the pleasure of working recently with Robert Gaines, a private investigator in Okanogan County.  I believe I met Bob Gaines some years back when he was a detective for the Okanogan County Sheriff’s Office and the Task Force and I was a prosecutor.  He has a lot of detective experience, and recently he has been helping me as a defense investigator in a case in Okanogan.  He has been great to work with.  He is also available for insurance and fraud investigations, service of process and civil papers.  Check out his website Cascade Investigations He has been a great asset to me because he understands how Okanogan works.  For those of you unfamiliar with the area, Okanogan County is about the size of my home state of Connecticut.  Okanogan County is 5,315 square miles, and Connecticut is 5,544.  So having a local help me out is an asset.  Bob Gaines will also be taking cases in Chelan County and Douglas County.  Although people may often think of private investigators as being important in divorce cases, etc., actually, having a private investigator in a criminal case is important.  Much like an indigent defendant has a right to an attorney at public expense, defendants in major criminal cases are entitled to investigators at public expense to assist the defense lawyer.

Recently the Washington State Supreme Court overturned the conviction of a juvenile who plead guilty, and then sought to withdraw his plea.  See State v. A.N.J.  Part of the reason the court allowed the defendant to withdraw the plea was because the original defense lawyer took no steps to investigate the case.

Uncertainty in Law Fuels Reform Movement for Marijuana

In Washington, a person with proper documentation from a physician can legally possess marijuana, right?  It isn’t that simple.   The State Supreme Court essentially said this month that even if you possess the valid certificate from a doctor, the police can still search your house and still arrest you.  The certificate can only be brought up later in court to defend you.  See decision In a case out of  Stevens County, Washington, the sheriffs deputies approached the home of Jason and Tina Fry and smelled marijuana from the front porch.   Tina Fry presented proof of medical authorization, but the police obtained a warrant anyway.  As you would expect, marijuana was found in the home.  The Frys’ criminal defense lawyer filed a motion to dismiss and to have the search thrown out of court.  The Stevens County judge denied the lawyer’s motion to suppress the evidence.   The Fry’s defense lawyer appealed all the way up to the State Supreme Court.  There the court explained:

A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys’ residence. Fry presented the officer with documentation purporting to authorize his use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore, based on the information of a marijuana growing operation and the strong odor of marijuana when the officers approached the Frys’ home, a reasonable inference was established that criminal activity was taking place in the Frys’ residence. Therefore, the officers had probable cause and the search warrant was properly obtained.

The ruling essentially says that medical marijuana is not legal, rather it is illegal until you go to court and present a defense.  Is that clear?  Unfortunately not.  Another similar area of the law was fought out in December in King County Superior Court.  Aaron Pelley, a Seattle criminal defense lawyer, won a legal challenge on behalf of Scott Verner, a medical marijuana patient.   During a routine traffic stop, a state trooper smelled the marijuana in Verner’s car and search it even though Verner produced a doctor’s authorization.  Attorney Aaron Pelley took the State to court and won a groundbreaking case that forced the police to return the marijuana.  I am sure the police considered that quite an indignity.  But, it is probably quite an indignity for sick medical marijuana patients to stand by the side of the road when their cars are searched.  The article made news nationally, and is available here.

Are marijuana patients and criminal defense lawyers the only ones who are fed up with the confusion in the law?  Mason County Prosecuting Attorney Gary Burleson also seems fed up.  “I don’t have a problem with marijuana being legal, and I don’t have a problem with it being illegal,” Burleson said. “But right now, I have a big problem understanding what’s legal and what’s not.”  See story.

See prior post on medical marijuana.

What do you think?  Was the Supreme Court’s ruling correct?  The court seemed to take a narrow view of the law and a literal reading of the earlier initiative authorizing medical use.  Is the new initiative more clear?  What can we look forward to from the courts in the future?  Doesn’t it seem like the police are reluctant to fully respect the medical marijuana law?  What will their reaction be to the legalization or decriminalization of marijuana?

Jury Hangs in Paul Schene’s Assault Trial

The jury considering the assault charges against Paul Schene announced Friday that they were deadlocked, and a mistrial was declared and the jury released. Paul Schene, was a King County deputy sheriff, and was charged with Assault 4th Degree for allegedly assaulting Malika Calhoun in a video widely distributed online.  See prior post.  The jury voted 11-1 to convict.

The prosecutors office announced that they would be retrying the case.  I know the customary practice for in misdemeanor cases in King County is to not retry misdemeanor hung juries.  This case doesn’t seem to be the average misdemeanor.  The strategy of Schene’s criminal defense attorney Peter Offenbecher in this case was to break the video down frame by frame and have the accused officer explain every action he took in terms of his police training.  As reported in a Seattle-Times article:

On the witness stand Tuesday, Schene said he used standard techniques taught at the police academy to control Calhoun.  He said he first kicked her to spin her around, grabbed her hair to control her, shoved her against a wall in a failed attempt to handcuff her and forced her to the ground by her hair to apply handcuffs.  He said he punched Calhoun twice in the left shoulder while she was on the ground because she was resisting him and his partner, who was also trying to handcuff her.  … Standing before a TV monitor using a pointer, Schene explained his actions as jurors watched freeze-framed video of the encounter.

You tend to see a frame by frame analysis of the video clips in question when officers are charged with assault based on video.

Police Practices Expert Charles L Duke testified for the defense when the LAPD beat Rodney King

In the prosecution of the LAPD officers who beat Rodney King, the defense used police practices expert Charles Duke.  He did a frame-by-frame analysis of the videotape for the jury to support the contention that reasonable force was used.   He testified that all 56 baton swings were justified in his expert opinion under police protocols.   See related article from 1993.  In the Rodney King case the prosecutor and the defense both used expert witnesses in police procedure.  The prosecutor’s expert Sgt. Mark Konta testified that the first baton blows may have been justified but not the remaining blows.

In the case of Paul Schene’s criminal charges it doesn’t appear from the news coverage that either the prosecutor or the defense lawyer called any use of force experts to testify.  It would be interesting to see what Charles Duke would say about this video footage of Paul Schene and Malika Calhoun.

When the police beat Rodney King and the footage was broadcast on CNN people were shocked.  I was in college at the time.   I don’t remember officers being caught on tape in such a manner prior to that.  Now, these sort of matters make the news all the time.  A person could spend all day on youtube looking at such incidents.

What is it like for the prosecutors who handle the cases against the cops?  Is there resentment among the other officers that typically work with the prosecutor.  What pressure is put on them?  I may blog about this subject in the future.

What thoughts do have on this case?

(By Steve Graham, Defense Attorney)

Local Officials Brace for Election Challenges

Four years can go by fast.  One day you are elected and on the top of the world, and then New Years Day 2010 comes around, and like a hangover, the unpleasant reality of an election year is upon you.   Rural prosecuting attorneys who won large pay raises last year (see post) will face an increase in interest for their jobs.  But, starting in Okanogan County, it appears that the prosecuting attorney could be unopposed.  East of there in Ferry County, Prosecuting Attorney Mike Sandona is almost certain to face a challenger. It was almost four years ago that he staged a coup d’etat when he ran against his boss.   He won by a large majority, and everything after that would seem to be downhill.  But that hasn’t stopped him from preparing for an election battle by joining every civic group known to mankind.

In Stevens County, Tim Rasmussen ousted four-termer Gerry Wettle for prosecuting attorney in 2006.  He does not have an election challenger yet that has announced publicly.   Mr Rasmussen connects with voters through his regular column “Prosecutor’s Corner”.  See sample.

The Sheriff’s races in the region may be interesting.  I was surprised to see a campaign bumper sticker as early as last October in Okanogan. Dave Yarnell has announced his candidacy for Sheriff in Okanogan County, and has a pretty impressive website here.  Mr. Yarnell mentioned some dissatisfaction with the current situation in the department in a newspaper article but he doesn’t get into specifics.   I guess there is plenty of time to discuss specific issues in the long hot summer of that region.   He is probably smart to get his web site up early because it can take awhile sometimes for search engines to even find your site.

In Ferry County, there was talk about election year challenges to Pete Warner.  I received emails from people encouraging Ray Maycumber and Tom Williams to run, but that seems unlikely (from an outsider’s perspective) in light of the fact that Pete Warner just promoted Maycumber to the position of 911 coordinator,  and has apparently made Tom Williams the undersheriff.  Other candidates have been mentioned as possibilities but no one that I have talked to has declared.  I did a poll last year with limited success – see here.  Comments are always welcome but I think for comments about political races people need to post their first and last name.

Ric Smith Makes Bold Prediction on Voter Initiative to Legalize Marijuana

The Washington State legislature recently has considered certain bills to legalize or decriminalize marijuana.  House Bill 1177 was been introduced by Mary Lou Dickerson, a Democrat of Seattle, that would decriminalize the possession of small amounts of marijuana and make it an infraction similar to a speeding ticket.  Similarly, HB 2401, would legalize the drug outright.

But Ric Smith, of the group Sensible Washington, didn’t sound too interested.  He has pushed for a voter initiative that would legalize marijuana.   The voter initiative would attempt to collect enough signatures directly from voters to have the law put on the ballot for a direct vote of the people.  While others at a legislative hearing pushed the legislators to pass the law, Rick Smith told them “We’re going to take it out of your hands, and we’re sorry about that…”  He continued:  “Just wait for our initiative; it’ll take care of everything.”  (See story).   Is he correct?  Will the voter’s pass an initiative that would legalize marijuana?

It may have sounded like Ric Smith was telling the legislature to take a hike, which probably was not his intent.  After the hearing, I noticed Sensible Washington’s website posted the statement “Sensible Washington certainly appreciates the hard work of legislators who have supported these measures….”

The group Sensible Washington is gathering signatures to put the issue before the voters in the November 2010 general election.  The measure would remove all criminal penalties under Washington law for the adult use of marijuana as well as the possession and cultivation of marijuana.

What do you think?

Sheriff’s Deputy Paul Schene on Trial for Assault Against Malika Calhoun

Former King County Sheriff’s Deputy Paul Schene is pending trial now on one count of Assault Fourth Degree for allegedly assaulting a 15-year-old girl he arrested.  Below is a copy of the jail footage of the incident.

So this was a while ago.  Deputy Paul Schene has since been fired.  The latest is that Paul Schene is now pending trial on one count of Assault Fourth Degree and the trial will resume this Tuesday.  So the system works, I guess.  Schene is facing trial.  I guess what bugs me is that on top of the fact that he roughed up Malika Calhoun, Paul Schene also attempted to charge her with assaulting him.   I had to watch the video a few times before I figured out that Paul Schene justified his take down on Calhoun by the fact that she flicked her shoe at his leg when she took it off.   It is also a little disturbing that the other police officer pretty much just stands there while this is going on.  He doesn’t seem particularly disturbed when he sees what his fellow officer does, although I guess he does seem a little taken aback when the punches start.

Jurors give a lot of deference to police officers, and are slow to disbelieve them when they allege that they have been assaulted.  If it weren’t for the video, Malika Calhoun could be the one on trial for assault, and she would probably be convicted.

See the story in the Seattle-Times.  The police officer Paul Schene is being represented by defense lawyer Peter Offenbecher of Seattle.  The story in the paper explains the defense approach.  It seems like Offenbecher has a pretty big challenge in light of the video tape evidence, but then again everyone thought the LAPD would be convicted of the assault of Rodney King too.

What does everyone else think about this case?  Obviously our system should protect the police as much as we can from assaults, but other than video-taped proof, how can we tell when the police lie or exaggerate?

High School Students Interested in C.S.I. Work

I read an interesting article this week in the Spokesman-Review about Eagle High School in Boise, where biology teacher Misty Sterk is teaching a semester long class in forensic science.  (See article).  I found this interesting because forensic science can be a little gruesome.   High school students need to be treated with a little more caution then college kids.  I sometime coach mock trial teams in high school, and I try to be careful with kids even on the subject of court cases.

Ketchup from the lunch room?

But in this class apparently, the kids are not particularly squeamish.  One student explained to the reporter: “With a knife wound, for example, a blood spatter indicating a downward trajectory means the attacker was probably right-handed, because with a left-handed person the spatter would be more horizontal.”   The article goes on to explain that the class “is getting students excited about science by processing a crime scene, using maggots to determine time of death, fingerprinting, analyzing blood spatters, and determining race and sex based on skeletal remains, DNA testing and ballistics.”

The article made me wonder how the blood spatter science could be appropriately taught in a high school.   When I took a course at the state police academy near Seattle, blood spatter science was taught in the gymnasium.  First the instructor spread out giant sheets of white paper over the floor.  Next he swung a bat repeatedly into a sponge soaked with pigs blood.  We studied how the blood droplets struck the paper.   I am not sure you can teach the subject with fake blood because any other substance will have a different viscosity and surface tension.   I am sure the teacher, being a pro, has found some way to teach this in a manner appropriate for kids.  In the world of forensics, the science is usually referred to as blood “spatter” rather than blood “splatter” but the two words are really synonyms.

I would bet that the part of the course on identification of human bones would be pretty interesting.  In 1998, I took a class in forensic anthropology at Eastern Washington University taught by Dr. Sarah Keller.   Also in the class was attorney Karl Sloan, who is now the Okanogan County Prosecuting Attorney.   The “final exam” for the class consisted of  being handed a bunch of bones in a shoe box and having to identify them.   Some bones are pretty basic, but the bones in the hands and feet are almost impossible to identify.  The subject of identification of bones  does not come up too often in forensics.  I did see, however, that this was an issue in a recent fire in Curlew, Washington.  In the news story, it was explained that a forensic anthropologist was needed to assist in identifying the bones.   The class I took at EWU didn’t make anyone an expert, but it helped teach the basic science.  Dr. Keller explained that people would be shocked at how many times police detectives would bring in a bone for her to examine that was clearly an animal bone, and that that should have been obvious.  She explained that certain bear bones can often appear to be human bones.

The television show C.S.I. has been on for about ten years.  It has been very popular and has drawn a lot of interest in the profession from students.  Even many students at Eagle High School were interested in it.  Both Eastern Washington University and Seattle University have 4-year degrees available in forensic.   But despite the growing interest in the field of forensic scientists, the labs always seem to be short-staffed.  Last week, the Skagit Valley Herald printed an article describing how a shortage of qualified technicians in the state crime lab has created a huge backlog of evidence to be tested, even in serious cases such as shootings.   Washington State is trying to recruit forensic science technicians from as far away as South Africa.  A list of schools teaching forensic science is available here.  I looked at Gonzaga’s website and it does not appear that they have a degree program in forensic science at this time.

Forensic science plays a roll more and more in court cases.  The science changes all the time and criminal defense attorneys and prosecutors keep up through various trainings around the country.   If a defense lawyer does not know the science well, it is difficult to properly defend his or her client.   The use of faulty forensic science is a big cause of wrongful convictions.  About 1/2 of the 232 people that the Innocence Project has helped free were originally convicted at trial by “unvalidated or improper” forensics.    Last February, the National Academy of Science issued a report criticizing the sloppy practices of crime labs, imprecise scientific tests, and the exaggeration in court of the scientific reliability of results.   Many of these tests criticized are similar to scientific results being used (or misused) in the courts of Spokane County, Grant County, Okanogan County and other areas of Eastern Washington.

More Swastikas in North Idaho: This Time on the Vehicle of Brittany Edelblute

Idaho has had a new rash of hate crimes in the last year.  Last Friday, Brittany Edelblute’s Subaru was spray painted with swastikas.   In an article in the Spokesman-Review this morning, it was explained that Brittany Edelblute was apparently targeted because she has friends who are African-American that come by her house.  She has had a problem of people shouting racial slurs while they drive by.   A photo of her damaged vehicle is online here.  I blogged about a similar incident last month against Haitham Joudeh here and here.   In the news coverage last month in the Coeur D’Alene Press, the comment section was full of hateful comments.   The whole story was later taken down.  This time, the Coeur D’Alene Press did not post a story online about the crime against Brittany Edelblute.   Last month, a majority of the people making comments online accused Haitham Joudeh of vandalizing his own car just to get sympathy.

Why does this stuff always happen in North Idaho?  I don’t think it is just happenstance. It seems that the people in power over there inadvertently foster such behavior by their own actions.  Look at the shabby way Kootenai County Commissioners Rick Currie, Todd Tondee and Richard Piazza treated Haitham Joudeh.  Haitham Joudeh, an Idaho native of middle-eastern descent, sought a building permit.  The local Planning Department did not object to the project.  In addition, after a lengthy public hearing where all sides were held, the Hearing Examiner Rebecca A. Zanetti recommended that the permit be approved.  But neighbors put together an anti-Joudeh rally against the applicant, and the county commissioners bowed to pressure and rejected the permit.   Haitham Joudeh complained that during the rally and the public hearing, many negative comments were made about his religion and ancestry.   Commissioner Rick Currie is a member of the Mica Grange, the group that allegedly held the anti-Joudeh rally.   Currie boasts of his membership to this group on his re-election website.

I have done a fair amount of land-use law in my practice, and that sure seems seems strange that the county commissioners would not approve a permit when the experts did not see a problem with it.  And if the commissioners are affiliated with groups opposing the permit, they have a duty to step down and appoint a neutral decision maker.

I hope that journalists start to look at this problem in North Idaho as a whole.  A business owner who faces discrimination in the permitting process is not as quick and easy to write about as spray-painted swastikas, but the story deserves attention.   When county commissioners and civic groups foster an attitude 1) that is suspicious of outsiders, 2) that applies different standards to newcomers, and 3) when they do not sufficiently condemn the bigoted statements of their constituents, they inadvertently create an atmosphere that allows the incidents of street vandalism to flourish.

What do you think?  Why do you think these incidents of vandalism and swastikas have occurred?  Brittany Edelblute expressed frustration that the police officer asked her if she wanted to “press charges” over the incident.  Why do you think the officer asked that?   What are the advantages of remaining silent?  Last month the comments to the articles online often attacked Haitham Joudeh.   Will the newspapers better enforce their guidelines for posting comments?

What do you suppose the Coeur D’Alene Chamber of Commerce thinks of all this?  Does Coeur D’Alene want to be known as a first-class vacation destination or a backwater struggling with frequent hate-crimes.   The article in the Spokesman-Review quotes an official who seemed to think that the solution is in law-enforcement?  Is this correct?   Take a look at an interesting article explaining the position of the NAACP leader V. Anne Smith on the issue of hate crimes in Spokane.  (See article).   How would this advice go over in Coeur D’Alene?

Carolyn Paulsen-Riat Charged with Assault for Shocking Husband with Table Saw

Carolyn Paulsen-Riat of Olympia, Washington is accused of Assault for allegedly re-wiring her husband’s table saw and causing him to receive an electrical shock.  According to an article in The Olympian, after the man was shocked he confronted her and she “told him that she had tampered with his tools by switching the positive and negative leads . . . to intentionally harm him.” tablesaw Many people who commented in the online article were upset that the judge decided to release this woman on her own recognizance.  Others in the comment section offered the opinion that if a man had been the defendant, that he would have been held on high bail. Paulsen-Riat has been charged with Assault 3rd Degree and Malicious Mischief for vandalism allegedly done to her husband’s property.   Her husband told police detectives that the table saw carried 220 volts, and the “arc from the plug adapter knocked him into some boxes located along the wall of the work shop….”  According to the article by reporter Jeremy Pawloski, the husband did not need medical attention.

It is interesting that Paulsen-Riat was charged with Assault Third Degree.  Under RCW 9A.36.031 the offense of  “Assault Third Degree” means the defendant is accused of committing the following actions:  “With criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm” or “with criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering.

So do the prosecutors really believe that Paulsen-Riat acted with intent to harm her husband?  The crime she is charged with alleges that she negligently harmed her husband.   Under Washington’s sentencing guidelines, Assault Third Degree is classified as a “non-violent” crime, and for a first-time offender the sentencing range is 1-3 months.  To increase the charges to Assault 2nd Degree under RCW 9A.36.021, the prosecutors would have to prove that the re-wired table saw amounted to a “deadly weapon.”  (In pertinent part Assault Second Degree is defined as when a person “intentionally assaults another and thereby recklessly inflicts substantial bodily harm” or “assaults another with a deadly weapon“.)   For Assault Second Degree, the standard range of incarceration is 3-9 months with a potential weapon enhancement of 18 months.

It sounds as if this table saw would need to be analyzed by an expert.  Despite what you see on t.v. shows such as C.S.I., usually assault crimes are pretty run-of-the-mill and are not committed by particularly imaginative means.  That is not to say that assaults cannot be unusually cruel or brutal, just that they are committed in the conventional way.  And the conventional way is immediate, hands-on force with a knife or other typical weapon.  There were a few interesting comments about the electrical aspect of this posted by readers:

Crossing electrical leads on 220 cannot produce a shock. Shorting directly to ground can produce an arc

and

You would not be [electrocuted] by “switching the positive and negative wires” on a 220 volt appliance. There are not “positive and negative” wires on a 220 appliance — both of the main wires in 220 are hot, so reversing them would do nothing at all, and the appliance would still work as intended. Unless she switched one of the two “hot” wires with the ground wire, in which case it could have shocked him briefly, before the circuit breaker would blow.

These comments presumably were made my people who were not electricians.  It would be interesting to hear what an electrician would say about what it would take to harm or even shock someone through this way that is alleged.  The police allege that Carolyn Paulsen-Riat did admit to tampering with the wires, but it is unclear what her intent was.  At the time, she is alleged to have vandalized some of her husband’s property.  Is it possible that her intent was simply to damage her husband’s table saw?  The facts of this case are so unusual that it is hard to know what to make of it.

As you can see the judges are restrained by certain sentencing guidelines for Assault Third Degree and Assault Second Degree.  In Washington, the legislature came up with these guideline, and minimum and maximums.  It used to be that the judges had broad discretion to sentence within a broad range of 0-5 years or 0-10 years.  Now it is hard for judges to come up with the sentence that they feel is appropriate.  The purpose of having mandatory sentencing is so similar offenders are treated the same.  But how do you compare the facts of this case to “similar” cases?

Taser International Creates Video Cameras for Law Enforcement – But Do the Police Want Them?

Will police officers really agree to wearing video cameras?  I read in the business section of the Spokesman-Review last week that the company Taser International has introduced a new line of cameras for police officers.  taser-axon_1 Taser International, Inc. is of course best known for Taser guns, and has sold millions of such instruments for police officers world wide.  However, my guess is that these new cameras for police officers will be go over like a ton of bricks.  The article in the Spokesman explains:

Eighteen of San Jose’s more than 1,300 sworn officers have been trained to use the AXON head cameras as part of a free trial. Other departments are expected to be added to the program.  In San Jose, officers are required to switch on the cameras for even routine investigations, such as vehicle stops.  …  “People have been using (this technology) against us for years, unfortunately only for the bad stuff,” [Officer] Pender said. “So it’d be nice to show our view and our side of what’s going on.” In San Jose, officers are required to switch on the cameras for even routine investigations, such as vehicle stops. At the end of an officer’s shift, the device is placed in a docking station, where it recharges and its content is downloaded and stored on a secure server offsite.

The truth is that these sort of cameras are not very popular with police officers or their departments.  As you can see from the photo above, the camera wraps around the ear and sits over the officer’s shoulder.   So it is like literally having someone looking over your shoulder.  And “that someone” is the top brass, the defense lawyers, the tort lawyers, the ACLU, the media, and the general public once the footage gets on t.v.  Video evidence provides graphic powerful images that a jury can later see.  It is one thing for a witness or victim of police abuse to say what occurred, but another thing entirely for disturbing video footage to be presented.   While it is widely assumed that having a camera rolling would mean that the police would be on their best behavior, this is not the case.  Often times the officer subjectively believes he or she is acting appropriately at the time, but the video often show otherwise.  Youtube is full of videos of police officers improperly handling suspects while a dash cam is rolling.

Police officers generally don’t like to be recorded.   In the case of State v. Flora, a police officer went so far as to arrest a man who secretly audio-recorded him speaking.  The Washington State Court of Appeals held the suspect was entitled to make such a recording due to the public nature of the encounter.  Can people really imagine the police of Spokane County, Grant County, Stevens County etc. wearing these things?

Although the salespeople with Taser Internations are trying to market the recording equipment as popular with police, it is not the police who will like them.  Until now, the greatest proponents of requiring the police to record suspect contacts have been civil libertarians.  See support from National Association of Criminal Defense Lawyers, The Justice Project, and ACLU.  The other proponents of requiring the recordings are defense lawyer bloggers.  See blog posts: Grits for Breakfast, FloridaJustice.com, and Law and More.

The ACLU for years has been critical of the Taser gun (see here).  Does anyone else see the irony of Taser Inc. trying to make a buck off something the ACLU supports?

The Ninth Circuit Court of Appeals just greatly limited the use of the Taser gun last week. (See here).  Since I read about this new line of Taser products in the business section of the newspaper, let me offer this financial advice:  The Taser cam won’t sell.  Now is the time to dump your Taser stock.


Seattle Residents Blase about Coyote in Magnolia Neighborhood

Last September I blogged about a mountain lion that made its home in Discovery Park in Seattle.  See post.  Now the talk of Seattle is about a coyote that has taken up residence in the same area.  See article in the Seattle Times.  The neighborhood of Seattle where the coyote lives is Magnolia, and the sightings and photographs are being tracked by Loree Schoonover, editor of the Magnolia Voice, a community blog.  Apparently Seattle residents have grown a little blase about the coyote and do not really fear the animal.  Sean Carrell, of the Washington State Department of Fish and Wildlife states that it is rare for coyotes to attack pets or people, but it does happen.  According to the article in the Seattle Times, Sean Carroll stated: “There are so many greenbelts that provide avenues for these animals to travel that it’s not uncommon to see them in a highly urbanized environment….”  Mr. Carroll’s comment is interesting.  A “greenbelt” is a corridor of land through or surrounding a populated area to provide wildlife habitat or hiking opportunities.  In Washington’s Growth Management Act, in RCW 36.70A.110, state law provides: “Each urban growth area shall permit urban densities and shall include greenbelt and open space areas.”   Looking at a map, it is pretty hard to see any greenbelt in the area that would be a natural pathway to Discovery Park.
View Larger Map Discovery Park is at the end of a peninsula and the coyote would have to come up through Seattle’s downtown, or from the North and swim across the ship canal. I don’t really have any counter explanation. Seattle for some reason seems to really attract it fair share of random wildlife, and local residents are often at a loss of how to respond. When I lived in the Leschi neighborhood of Seattle at the far end of Yesler Way, an opossum wandered up from the park, and my neighbor thought it was a rat.

Coyote riding a train in Portland, Oregon.

Coyote riding a train in Portland, Oregon.

I guess it would be fine if Seattle coyotes remained in the parks and ate opossums, but the coyotes have been known to do some pretty crazy things.  One time in 1997, a coyote entered the Federal Building in downtown Seattle and rode the elevator.  (See source.)  In Portland, Oregon, a coyote ran into an airport and later left the area by train.  (source).  In rural Eastern Washington, where I live now, such close encounters with wildlife are often attributed to habitat encroachment by humans. You do not hear such arguments from the Fish and Wildlife Dept with respect to the Seattle animal encounters.

Prosecutors vs. Judges: Jim Hagarty of Yakima County takes issue with District Court Judge Ralph Thompson

Let’s face it courts are busy places, sometimes chaotic, and usually short-staffed.   Defendants, victims, witnesses, and jurors all wait for their cases to be heard.  And the situation usually isn’t improved when a prosecuting attorney flat out refuses to work with a certain judge.  This was the case with Yakima County Prosecuting Attorney Jim Hagarty as announced last week in the Yakima-Herald. Jim Hagarty wrote in a letter that Judge Ralph Thompson’s decisions created a question of whether the state would receive “a fair opportunity when litigating cases in his courtroom.”   Jim Hagarty announced that he was asking to have this judge prohibited from hearing any case in which the prosecutors office was a party.  Under court rules, this practice is called an “affidavit of prejudice”, and can only be done to a single judge before he or she has made a decision in the case.  Now the question is raised: Since the voters elected Judge Ralph Thompson to hear cases, is it really proper for the elected prosecutor to reject the will of the voters?  Is it fair for Jim Hagarty have Judge Thompson’s work load shifted over to the other already busy judges?  Seattle University law professor John Strait, an expert in legal ethics, addressed the issue.  He indicated that he thought such actions [such as the step Jim Hagarty took] inappropriately deprives voters of a judge they elected to serve them.   He explained “I think that raises separation of powers issues. I don’t think the prosecution should get to trump the elected judiciary’s function in that manner….”

The article in the Yakima-Herald paraphrases the problem that Jim Hagarty had with Judge Ralph Thompson’s decisions.  I expected that the issues would be some pretty significant disagreements, and instead the disputes seem pretty petty.  The number one reason for Hagarty’s decision was an incident last January where the judge found a driver not to have committed a traffic infraction.  The Trooper complained to the prosecutor that the decision left him “dumbfounded.”   The second reason was that Judge Ralph Thompson would not agree to a request for a continuance of a case.  Prosecuting Attorney Jim Hagarty was just appointed to the position in January.  Maybe when his deputies complained to him, he should have told them to develop a thicker skin about such things.  Additionally, it seems as though the prosecutors should have considered filing an appeal or a writ of review.  Jim Hagarty complains that the judge has a lack of legal knowledge. It does seem that the bulk of the Judge Thompson’s experience is in civil work.  However, if this is the case the proper recourse is for the prosecutors to educate the court on the law through the drafting of legal memoranda and citing to legal precedent.  Too often prosecutors, and defense lawyers for that matter, fall in the rut of relying on canned briefs for routine matters, and are unwilling to hit the law books to research a new issue.

It will be interesting to see how the other judges cope with the increased workload.  I just read in the Yakima-Herald last month that Yakima County had the highest homicide rate in over 20 years.  See article.  it seems like the courts will be pretty busy.   You have to wonder why with his hands full with homicide cases, that Jim Hagarty would get involved in some snit his deputies are having with judges in traffic court.  Jim Hagarty is not the first prosecutor to attempt to prohibit a Judge from hearing criminal cases.  In 1984, Spokane County Prosecutor Donald Brockett grew frustrated with the adverse pre-trial rulings of Judge William Luscher in a murder case.  When Judge Luscher ultimately acquitted the defendant, Don Brockett resorted to the same steps Hagarty did.  Brockett eventually backed down after a newspaper editorial questioned the practice.

King County Prosecuting Attorney Norm Maleng never filed such affidavits of prejudice reasoning that it was the will of the voters to put or to keep the judge into office, and it would be wrong to override the will of the electorate.  I understand that the Attorney General’s office has the same view.  Maleng’s successor Dan Satterberg has a different view and has challenged Judges Peter Nault, and Victoria Seitz.  Additionally, the prosecutors for the City of Bellevue similarly challenged Judge Frank LaSalata for ruling against them and not imposing the fees they requested.  For an in depth discussion on this issue in King County, see an article by attorney Kennet Phillipson posted here.  Closer to home, Okanogan Prosecuting Attorney Karl Sloan has raised eyebrows with the frequency with which he has filed affidavits of prejudice against Judge Jack Burchard.  Judge Burchard is the only elected superior court judge in Okanogan County.  I have notice in my practice there that this issue has slowed down the criminal courts somewhat as there is sometimes a delay in waiting for an out-of-town judge to hear cases. It remains to be seen if this practice of Karl Sloan’s is a temporary thing or if it will continue.  If it continues, it will be interesting to see how the voters react to their elected judge being barred from many of the cases in Okanogan County.

Elk Hunting Methods Controversial

I didn’t see it in the Spokesman-Review online, but the West-side online newspapers were lit up today with a controversial elk hunt in Concrete, Washington.  It started at ten this morning when the Skagit Valley Herald posted an article about a group of bow-hunters who killed six elk in a farmer’s field.  You pretty much need to read the article to understand the matter, but basically a farmer let any hunter shoot elk in his pasture.  The elk just ran around from one end of the fenced area to the other while unskilled hunter shot the elk with arrows.  It happened right within a few feet of the state highway 20, and I am sure it attracted a lot of attention.  It is interesting that the Skagit Valley Herald had a reporter on scene but did not post any photographs online.  To truly understand the spectacle from a visual point of view, you need to see this site.  The site is a series of photographs posted on SmugMug.com, a service similar to Flickr.com.  The photographer posts captions explaining what he or she saw.  The photographer mentions that he or she removed certain photographs at the request of people in the pictures.  This is interesting because the photographer had no legal duty to do so.

I don’t know a lot about hunting, but the incident raises a lot of questions.  I guess the background to the story is that the State Fish and Wildlife Department authorized additional hunts in the area because the elk herd was posing a danger to vehicle traffic.  Elk are much like moose in that they are large animals with a high center of gravity that pose a deadly threat to motorists.  The use of private hunters to address a problem through special hunts seems to be the way the State handles such concerns.  I remember that in the city of Republic, in Ferry County, it was suggested that nuisance deer be removed through the same manner.  The city opted instead for the deer to be relocated to the Colville Indian Reservation.  That was probably a wise choice because I am sure the local residents would not appreciate the messy work of the bow hunters within city limits.

What do people think of this elk hunt?  The game agent who was quoted indicated that he did not like the activity but that it was legal.  How should the laws be changed?  Is it even possible to craft a law that spells what sort of hunts would be unsporting?

Shoplifting in Spokane County: the Crime and Punishment

What is the proper punishment for shoplifting?  David Warriner, an unemployed man, stole four cans of sardines, shaving cream and razors from a Rite Aid in downtown Spokane, and he was sentenced to 29 months in prison.   See article.  A day later in the newspaper, I read about Father Tim Jones’ opinion on shoplifting.  See article.  Father Tim Jones created a stir by offering the following advice to the desperately poor:

“My advice as a Christian priest is to shoplift…. I do not offer such advice because I think that stealing is a good thing, or because I think it is harmless, for it is neither. …  I would ask that they do not steal from small family businesses, but from large national businesses — knowing that the costs are ultimately passed on to the rest of us in the form of higher prices….”

What would Father Tim Jones say about a 29 month prison sentence for stealing sardines?  Certainly Rite Aid would qualify as a “large national businesses.”   Spokane Deputy Prosecutor David Stevens sought the lengthy sentence on David Warriner because of Warriner’s extensive criminal history.   In fact, Warriner was originally charged with Burglary – not because he broke in to Rite Aid, but because he had been asked not go into Rite Aid again, anywhere in the country.  This arguably would meet the elements of burglary under RCW 9A.52.030 which defines the crime as entering a building unlawfully with the intent of committing a crime therein.  David Warriner entered a plea deal down to felony theft second degree, even though the items he stole were just worth $32.

The ethics of what is a suitable punishment for such a crime is an interesting issue.  However, I will leave that for others to debate.  My question is this: Can we as a society really afford to house a man in prison for 2 1/2 years simply for stealing sardines?  Is it good judgment for a public official to decide to expend the State’s resources to punish David Warriner in this manner?  The legislature has been forced to release violent criminals back onto the streets due to budget restraints.  It used to be that inmates only received 1/6 to 1/3 “good time” off their sentence.  Olympia has now been forced to give most inmates 1/2 time off their sentence for good behavior.  When a prosecutor seeks a certain sentence for a defendant, this does not occur in a vacuum.  Any inmate serving 2 1/2 years for stealing sardines is taking up a prison bed that could be used for a dangerous sex offender.  It may be that prosecutor David Stevens had his reasons in this particular case, but I use this instance to discuss this greater problem I see of prosecutors often not looking a the bigger picture.   (Last month, I blogged about prison sentences and budget cut backs here).   When I looked up the Washington sentencing guidelines, it appears that David Warriner faced a standard range of 22-29 months.  Judge Maryann Moreno had the discretion to sentence Warriner to only 22 months in prison, but decided on a sentence of 29 months.  The Judge explained to Warriner: “Your past history is the reason why you’re going to prison …. We generally don’t send people to prison for this type of crime unless they come in with a history like yours.”  The article did not mention who Mr. Warriner’s criminal defense lawyer was.

What do you think?  Should Judge Maryann Moreno have considered a lighter sentence?  Shoplifting usually receives a punishment of anywhere from a day or two to maybe thirty days.  What about other minor crimes such as fishing without a license, or possession of drug paraphernalia, or public intoxication?  If a person has a lengthy record, should the prosecutor in Spokane County seek to impose the maximum punishment allowed by law?

Police Shoot Murder Suspect in “Rear Torso”

I read in the Olympian yesterday an article reporting that police had shot to death murder suspect John C. Vu.  The article explained: “A deputy saw Vu and yelled at him to stop, but Vu continued to flee. The deputy fired one shot from his .223-caliber rifle about 3:30 p.m., striking Vu in the rear torso – likely because he was running from the deputy, [Sheriff's Deputy] Chamberlain said.”

I had to think for a minute what “rear torso” meant.  Why was it that the police did not want to say that the deputy shot Vu in the back?  The law seems pretty clear that if the police goes to arrest a murder suspect and the suspect refuses to stop after being warned, than that officer is entitled under RCW 9A.16.040 to shoot the fleeing suspect.  It was once the law of this country that police officers could shoot any fleeing felon until the U. S. Supreme Court ruling of Tenessee v. Garner.  In that case the court prohibited the use of deadly force unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

But despite the law, I guess it did not seem very good to say that the police officer shot a man “in the back”.  Vu was a gang member with a felony warrant out of California.  The odd thing about the article is that when it later describes how John C. Vu was wanted for murder, the article describes how Vu killed the man by a inflicting a “gunshot wound to his back.” Shouldn’t the reporter have used the same terminology to describe both shootings?

Is this “rear torso” a phrase we can expect to see in the future?  When I googled the phrase “in the rear torso” + “shooting” or “shot”, this article was pretty much the only instance of when such a phrase was used.

Juror Bias Warrants New Trial in Case with Lawyer Mark Kamitomo

Spokane Attorney Mark Kamitomo represented a woman who claimed to have been the victim of medical malpractice.  The jury disagreed.  Later it came out that the jurors belittled Mr. Kamitomo during deliberations by referring to him as “Mr. Kamikaze” and “Mr. Miyagi” (a character from the film Karate Kid).  One juror said that the jokes about Mr. Kamitomo’s name were almost appropriate because the day was December 7th, i.e. Pearl Harbor Day.

Spokane County Courthouse

Spokane County Courthouse

The jury deliberations were in private, but one juror, a professor at WSU, came forward to report this to Mr. Kamitomo.  Mr. Kamitomo filed a motion for a new trial, which was granted by Judge Austin, and this decision was affirmed on appeal Thursday.  See appellate decision.  See article in the Spokesman-Review.

On one hand you have to feel a little bad for the doctor who was found to be “not negligent” and who will now have to face a new trial through no fault of his own.  However, there were some comments that the doctor’s lawyers made that have to make you wonder.  First the defense lawyer characterized Mr. Kamitomo as playing the “race card”, and then at the court of appeals, the doctor’s lawyers suggested that the words “Kamikaze” and “Miyashi” are complimentary.   Mr. Kamitomo’s father was interned in a camp during World War II — I am not really sure it is fair to ask Mark Kamitomo to have a sense of humor about this.  Good attorneys should always be prepared to win or lose any case, but if it is clear that juror bias played a role in a decision, that should not be just shrugged off.  Trial lawyers always have a heck of a time selecting jurors who will unbiased.  As a criminal defense attorney, I am often faced with representing a client who is of a different ethnic background then a mostly all-white jury pool.  When you ask the jurors about any biases they have, they usually just stare back at you blankly.   When granting a new trial, Judge  Robert D. Austin explained “people are never forthright with their prejudices … rarely, if ever, will people disclose that.”  I would imagine that it would be quite awkward for a non-white attorney to question jurors about any biases they might have.  Jurors sometimes seem to take offense that they are even being asked questions like that.

In my practice, I sometimes represent Tribal members who are being charged in state court with various crimes.  There is always a concern on my part and the part of the client when we conduct jury selection.   I thought of this the other day when I viewed a video clip of an interview with Jaimee Grubbs.  Jaimee Grubbs allegedly had an affair with Tiger Woods, but the interview largely dealt with her feelings about Native-Americans.  See clip. Jaimee Grubbs grew up in Coulee Dam, a town bordering the Colville Indian Reservation.   She lived in an area where State Courts draw their jurors from.  Jaimee Grubbs characterized the Colville Indian Reservation as “ghetto” and explained: “They get their free money, they drink and that’s all that matters.”   She said that she will never date a Native American man. “They fought, they drank. They are very aggressive….”

Jaimee Grubbs made these comments as part of an audition tape that she did not anticipate would be made public.  How would Jaimee Grubbs have answered the same questions if she were on a jury panel?  Would she have been as forthcoming in a court of law, with an Indian defendant and his family present?

Back to the case with Mark Kamitomo.  Am I the only one who is surprised that the newspapers printed the names of the jurors who allegedly made the racial comments?   Aren’t jurors entitled to a little more privacy about comments that they make during deliberations?  I don’t have any problem with calling out individuals who make such statements publicly, but traditionally the misconduct of jurors is dealt with a little more anonymity.  Serving on a jury is compulsory, after all.  Wouldn’t the printing of juror names in this case make it less likely that a potential juror in the future would confess bias during jury selection?  Should Judge Austin have directed the lawyers not to refer to the jurors by name in the court pleadings?

The Ability of Indian Tribes to Punish at Issue in the News

At least in Washington State, if a tribal member commits a crime on tribal land, he or she will either be prosecuted in Tribal Court or Federal Court.  In Tribal Court the sentences are generally limited to one year, while in Federal Court the punishments can be up to life in prison.   While the federal punishments are stiff, the federal government rarely takes cases into federal court.  This issue was addressed in an interesting article by K. C. Mehaffey of the Wenatchee World. In the article, the authorities in Nespelem (with the Colville Tribe) are quoted as sharing their frustrations that federal authorities are too slow to take a case federal.  In my experience county prosecutors in Ferry and Okanogan County feel the same way, and have felt this way for a long time.  The federal courts just don’t carry the same volume of cases.

A federal court in Arizona raises questions about a Tribe's ability to punish its own members.

A federal court in Arizona raises questions about a Tribe's ability to punish its own members.

For many cases Tribal prosecutors would like to see more than 1 year in jail.  Up until today, I always took it for granted that judges were free to sentence a defendant to one year per count.  I have seen some defendants be sentenced to more than one year for a complaint that alleges more than one offense.   I read a court decision today that suggests that a defendant in Tribal court can only be sentenced to one year total.   I received an email from an attorney who directed me to a post in Turtle Talk , a blog about Indian law and politics.  In this December 16th post, the blog discusses the case of Miranda v. Nielson.  In this case, the defendant Beatrice Miranda brandished a knife and threatened to cut two people.  She was convicted in a trial in Pascua Yaqui Tribal court of eight counts alleging aggravated assault, endangerment, threatening or intimidating and disorderly conduct against two separate victims.  She was sentenced to 910 days in jail (i.e. over one year).  The magistrate interpreted the 1 year maximum in the Indian Civil Rights Act as meaning 1 year per “criminal transaction” no matter how may counts are alleged.  Because a defendant in Tribal Court is protected by the Indian Civil Rights Act rather than the U.S. Constitution, Congress sought to limit the punishments that tribes could inflict.   The court noted that one of the rights that a Tribal member does not have under the Indian Civil Rights Act is the right to an attorney at public expense.   Beatrice Miranda was not represented by an attorney at her trial.

Congress is currently considering enacting the Tribal Law and Order Act which would allow Tribes to begin handing down sentences of up to 3 years in jail.  Much of the motivation seems to be the perceived inability of Tribes to protect Indian women from sexual violence due to jurisdictional problems, see e.g. the Amnesty International article on the subject.  At issue is the rights of the individual tribal member versus the powers of the tribe to self-regulate.  When I read the blog post about the Miranda case on Turtle Talk, I noticed that there was only one comment posted.  The blog is out of Michigan, but the comment was by attorney Brent Leonhard, who served as a public defender with the Colville Tribes around the same time I worked as a prosecutor for nearby Ferry County.  Brent states that he disagrees with the judges decision in the Miranda case that only one year can be imposed.

What does everyone think?  Should a Tribe be able to impose more than one year for a defendant?   If so, does it worry people that Beatrice Miranda did not have the right to an attorney at public expense?  The Colville Tribe does provide an attorney (or spokesperson) at public expense.   Would it be fair to require this of all tribes if Congress allows punishments of up to three years?

Is Jay McCloskey the Right Choice for U.S. Attorney?

Jay McCloskey, a former defender of oxycontin and its manufacturer, is being considered for the position of U.S. Attorney in Maine.  Marianne Skolek and others are raising questions about this.

Before we turn to Jay McCloskey, let’s review where we are on this oxycontin problem in Washington.   We talked in earlier posts about the rash of pharmacy robberies in Washington and how the company that manufactured oxycontin plead guilty to a felony and was fined over $600 million in fines.  Purdue Pharma illegally marketed oxycontin as a safer alternative to percocet and vicodin, and told doctors that oxycontin posed a lower addiction risk then those drugs.   See earlier posts here, here, and here.   Part of the way that Purdue Pharma’s executives avoided jail time was by paying former prosecutors like Rudy Giuliani over a million dollars to go lobby the federal prosecutor that was prosecuting Purdue Pharma.  Another “consultant” for Purdue Pharma was attorney Jay P. McCloskey, who is now under consideration as a potential appointment U.S. Attorney in Maine.  I heard about this story through Marianne Skolek’s column in the Salem-News.com.  Marianne Skolek remembers McCloskey well.  The consideration of Jay McCloskey as a prosecutor is raising eyebrows among people who remember his role in defending Purdue Pharma.

Jay McCloskey used to work as a federal prosecutor in Maine, and witnessed the ravishes of oxycontin on local residents.  But later when hired as a consultant to Purdue Pharma, he defended the company.  See his testimony.  Jay McCloskey suggested the following strategy for defending the company: “You need to have somebody who has clout to get in the door to legitimately make your presentation” ( meaning Giuliani apparently)- see story.  The irony of Jay McCloskey defending Purdue Pharma as a criminal defendant wasn’t missed on the local Maine papers who quoted him as saying he had “no regrets”.  See story.

By all accounts, Purdue Pharma got off pretty easily in their plea bargain with federal prosecutors.  Even the judge noted this.  Shouldn’t prosecutors strive to treat defendants fairly?  Defendants with better financial resources always seem to do better in this country.  Shouldn’t Jay McCloskey have to explain his position to the people of Maine?

Threats to Family of Haitham Joudeh Remain on Comment Section of Newspaper Website

I blogged yesterday (see here) about the discrimination that Haitham Joudeh is facing in North Idaho from inside and outside of the establishment.  His truck was recently vandalized with swastikas.   I mentioned some threats that someone had posted in a comment section of an article in CDApress.com.  See here.  I guess I was hoping that someone was monitoring this on the weekend and the threat would be removed.  The threat from a local under then alias “idabilly” read:

idabilly wrote on Dec 5, 2009 8:31 AM:

1. Dude was born here- he’s American.
2. Dude didn’t get his way on the Mica Flats deal and pulls the “race and religion card.” No bueno guy- now you’re just asking for trouble, especially with our local “history.”
3. Trouble finds Dude and he keeps playing the “race and religion card.”
4. Trouble fins Dude AGAIN…. perhaps Dude should consider
moving to California for the safety of his son.
**Idaho Native, your comments about the white man are the
same type that got Dude in trouble here… sometimes it is better to keep your head low and mouth shut even when you are right.
The threat is not just to Haitham Joudeh, but “idabilly” also threatens a commentor with the online name “Idaho Native” who spoke against the racism.   Didn’t “idabilly” cross the line when he mentioned Haitham Joudeh’s son?  How can a newspaper allow itself to be a conduit for these anonymous threats?  Hopefully on Monday, the CDApress staff will remove this comment.  However, shouldn’t the paper remove all the comments against Haitham Joudeh from the last year that violate the newspaper’s comment policy?

Muslim Entrepreneur Battles Prejudice from Street Thugs AND Politicians in North Idaho

The Klan used hoods to protect their anonymity.  Today the bad apples of North Idaho are anonymously attacking Haitham Joudeh in comment sections of blogs.

Haitham Joudeh of Coeur d’Alene, Idaho had his truck vandalized Friday.  Haitham Joudeh is a business owner and real-estate developer who is native to Idaho.  Haitham Joudeh is of Middle Eastern descent – the vandalism consisted of the phrase “Go Home Sand Nigger” spray-painted on his truck, along with two swastikas and a slashed tire.  Check out a photo of the damage here and the article here, both from Spokesman-Review.  The Spokesman-Review article kind of hints at some of the background of what Haitham Joudeh has had to face in Idaho, but there is actually more to it.   Haitham Joudeh has been under near constant attack in Coeur d’Alene since he sought zoning approval to build some storage units in Mica Bay.  The local fire district (Mica Kidd Fire District) sought to stop the project and sought to condition the building permit on a requirement that Haitham Joudeh construct a 120,000 gallon water storage unit to prohibit.   Mica Kidd Fire District Chief Robert Crawford announced this new requirement, with a smirk and sarcasm, at a public meeting and drew laughter from the crowd when he predicted that such a requirement would likely be cost-prohibitive for Haitham Joudeh.    Haitham Joudeh alleges that the Fire District and the local grange held anti-Joudeh rallies.  Haitham Joudeh has heard many comments about his religion and his ancestry as he dares to make his living and take public positions.   The county Building and Planning Department actually did not object to the project.  In addition, after a lengthy public hearing where all sides were held, the Hearing Examiner Rebecca A. Zanetti rendered her expert opinion that the project be approved.  The Hearing Examiner studied the facts and the law of the particular case, as was her job.  The problem arose when the county politicians got wind of the anti-Joudeh sentiment in the community.   The politicians were county commissioners Rick Currie, Todd Tondee and Richard Piazza.   The commissioners struck down Haitham Joudeh’s building permit explaining that his project would draw too much traffic.  For those familiar with the rural West, county commissioners are usually pro-growth and constantly defending themselves from conservationists bent on legal challenges.   But when a “middle-easterner” with out-of-town roots proposes a big project, these Idaho private property rights activist types sometimes suddenly turn into Sierra Club types.  No wonder so many locals were confused as to why the commissioners were opposing the project.  [One local asked: " I'm kinda confused. Most people I hear from don't want anyone telling them what to do with their property. "My property, my business"..I paid for it, don't tell me what I can and can't do with it. I pay taxes. " Isn't this what the residents of Mica Flats are doing? Deciding what a property owner can or can't do? See link. ]

Haitham Joudeh complained that during the rally and the public hearing many negative comments were made about his religion and ancestry.  It is no wonder that Commissioner Rick Currie denied the permit.  He is after all a member of the Mica Grange, the group that allegedly held the anti-Joudeh rally.  Currie boasts of his membership to this group on his re-election website.   Mr. Joudeh’s lawyers raised this issue in a suit, and also pointed out that the the commissioners failed to disclose their relationships with members of the Mica Kidd Island Property Owners Association, the most vocal opponents of the project.  The website used to contain links to photos of Commissioner Currie attending events with members of the association.  When you visit the website now of the Mica Flats Grange, you will see them defend this conflict of interest with the following argument: [The applicant claims that because Curry is a Grange member he should not rule on the application. The opposing view is that many elected officials, including judges, belong to Granges.]  See link.  Well that is a problem too, and as we will discuss below, the judges don’t seem real fair there either.  In addition the Mica Flats Grange should know that their elected commissioner spells his name “C-U-R-R-I-E”.   “Curry” is a word often used to describe Indian food, which I would guess is probably not to popular in Mica Flats.

When Haitham Joudeh sought redress in a local Idaho court, local judge John T. Mitchell said: “You’re making a lot of harsh accusations and you don’t have anything to back it up right now, and that’s frustrating to me….  But you’ve made these accusations against our commissioners, and our commissioners have responded, and you can take all this evidence back down to the commissioners and see what they have to say about that.“  See story.   This comment really makes me wonder about the judge.  He is supposed to be neutral — why does he refer to the  commissioners as “our commissioners”?  If he works with the commissioners, and they approve his budget, why didn’t Judge Mitchell recuse himself and have a judge from out of town brought in?   How does Judge Mitchell expect discrimination to be proven?  No plaintiff ever comes in on a case with the county commissioners having written in their decision that the permit is “denied due to race” or “denied due to religion.”    Rather the commissioners here overruled their own hearing examiner due to the “increased traffic”, even though the Worley Highway District reported to the county that the project would have “negligible” impact on traffic in the area.  The storage unit would be for high-end items like large boats and RVs.  Just how many times per year is someone going to drive in to pick up their 25-foot yacht?   Answer: Once in the spring and then they return it at the end of the season.

At best this is an instance of a good-old-boy system showing bias against a relative newcomer.  At worst it is the North Idaho of the past — open prejudice of religious and ethic minorities.

Haitham Joudeh has complained about all the racists things said about him online.  A quick review of the problem is that the CDAPress.com doesn’t seem to exercise the proper editorial control over comments submitted on it articles.  The paper gives people who comment the following guidelines:  “No libel (that means no NAME CALLING, OR USING PRIVATE CITIZEN’S NAMES), Use good taste, Be positive whenever possible….  THINK BEFORE YOU POST and ask yourself these questions; Is it a positive remark?  Will I be hurting anyone?” Those sound like good guidelines don’t they?  However these are the comments that are up on today’s story about the spray-paint vandalism that happened to Haitham Joudeh:

  • “”I do not agree with what has happened to this man BUT,… I feel this guy brought this on himself. He has cried foul since he got here and I believe people are just plain tired of him.”
  • Dollars to donuts that this guy either did this himself or had friends of his do it for him
  • majority on here are obviously anti-dark meat
  • I’m saying the long necked duck gets the hunters attention.”
  • lol hey jim I was wondering when someone would notice the truck “
  • Dude didn’t get his way on the Mica Flats deal and pulls the “race and religion card.” No bueno guy- now you’re just asking for trouble, especially with our local “history.” … Trouble finds Dude and he keeps playing the “race and religion card.”  … Trouble fins Dude AGAIN…. perhaps Dude should consider moving to California for the safety of his son.  **Idaho Native [referring to another individual making a post], your comments about the white man are the same type that got Dude in trouble here… sometimes it is better to keep your head low and mouth shut even when you are right.

Hello CDApress.com?  Can just anybody just post whatever they want?  That last comment basically just says that if you are an ethnic minority you better keep your mouth shut if you want to be safe.  That would seem to be an illegal threat that the paper should report to the police along with the commentors IP address.  I read a lot of online newspapers, and I just don’t see other papers allowing such statements.  Other papers have a button where you can click “flag for removal” so the comment will be flagged for busy staff to review.  It is not my intent to “blame-the-messenger”, but newspapers need to be careful not to be made unwitting accomplices to those who would seek to run Haitham Joudeh out of town.  During the Jim Crow era of the South, newspapers often were used to whip up mob violence against Blacks and on occasion even announced lynchings in advance.  One more point – as to these cowards who anonymously comment and attack Joudeh – please don’t fool yourself into thinking the commentors  are skinheads or teenagers affiliated with Aryan Nations.  They are likely the same “good citizen” types who hang on the fringe of “civic groups” like the Mica Flats Grange.

In speaking of the suit filed by Joudeh, Commissioner Currie said. “You’re talking about three commissioners that don’t have a racist bone in their body….”    Let’s assume that is true.  But would it be o.k. for the commissioners to deny the permit just because granting it would be politically unpopular or against the wishes of their constituents?  If the will of the people is due to fear of Muslims, or due to xenophobia, should elected officials still do the will of the people?   Commissioner Currie boasts on his re-election site that he is a “4th generation native of Coeur d’Alene [Idaho].”  What if the commissioners were biased against Haitham Joudeh simply because he was a newcomer.  Would that be o.k.?

One commentor to an earlier article said:  “If the commissioners kowtow to this pathetic moron [meaning Joudeh] they cannot expect any respect from any decent citizen around here.”  Haitham Joudeh’s hearing in front of the commissioners was heard in an election year.  At a very minimum the hearing that Haitham Joudeh received on his project was tainted by the conflict of interest that the commissioners had in their association with opposition groups.  The minimum that they should do is grant Mr. Joudeh a re-hearing for his case in front of an impartial body.  The commissioners should appoint a neutral fact-finder.

Haitham is an American, he is a University  of Idaho grad, he is a married man and has a baby boy.  In some online comments Haitham Joudeh has spoke up in his own defense and used his own name.  Look again please at the picture here of Haitham Joudeh standing alone in front of his trashed truck.  He is by himself.  Why are not more people standing up for him?