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As sure as Spring is in the air, the 2010 election races continue to take shape.  This last week, candidates for the position of District Court Judge were announced in Ferry County and Okanogan County.  Attorney Henry “Hank” Rawson announced his interest in the position opening for Okanogan District Court Judge.  Judge David Edwards announced that he is retiring and is not running for re-election.  Coverage of Hank Rawson’s announcement is in the print edition of The Omak-Chronicle and is on the KMOW site here.  Rawson’s announcement sets him to run against Rick Weber, who has been on the bench there filling in for the last couple years in District Court.   Rick Weber was the elected prosecuting attorney in Okanogan County up until 2002, when he chose not to run for re-election.  The Wenatchee-World covers the race here.  Both men have served as judges and have run campaigns in the past, and my guess is that we are not going to see a lot of fur flying.  But I guess a blogger can always hope.

In the print edition of the Ferry County View, Republic lawyer Tom Brown announced his candidacy for judge in Ferry County.  The paper doesn’t have the announcement online, but for more info you can check out his Tom Brown for Ferry County Judge site.  Brown’s site announces that his campaign manager is Ray Maycumber.  Maycumber is a popular sheriff’s deputy who was recently promoted to manager of the 911 center, and has been mentioned in earlier posts here and here.  Tom Brown currently works as a deputy prosecutor covering felony cases.  His announcement set him to challenge Lynda Eaton who has not announced her intentions.

In Stevens County, no one has announced a challenge to the sitting judge.  As you recall Gina Tveit was appointed by the Stevens County Commissioners last year to replace Pam Payne, see post.

Comings soon: more on north county prosecutor candidates.

I have never met the guy, but you have to hand it to defense attorney David Partovi for the tenacious defense of his client Tyler Gassman.  Partovi went down swinging in Gassman’s defense last year on a questionable robbery conviction, and is continuing the fight.  Partovi has lodged a bar complaint against the Spokane prosecutor, agreed to interviews with the press, filed appeals, and has even taken the unusual step of commenting on the newspaper articles in the online comment section.  He even got the Spokane prosecutor personally fined for $8,000.  (Ouch!  Giuliano Mignini anyone?)  According to news reports, Partovi even wept at sentencing for Gassman.  As a result, the amount of people taking notice of this case is beginning to grow.  The most recent person to take notice is Jacob H. Fries, the managing editor of The Inlander.  Fries is no stranger to writing crime stories, having covered such matters for the New York Times and The Boston Globe.  Now the Spokane native is covering injustices in Spokane.  See his recent piece on Gassman’s case here.  The Inlander apparently is doing a series on unjust convictions in Eastern Washington, and lists a contact number on their site for people to submit ideas.

Here is what all the fuss is about.  The Spokane prosecutors had a rock solid case against a robbery suspect, and let him go with a slap on the wrist in exchange for pointing fingers at seemingly anyone he chose, including Tyler Gassman. You really have to wonder about this business of “buying” the testimony of criminals with promises of leniency.  If it is a crime to bribe a witness with cash in exchange for his testimony, how is it any better when a prosecutor “bribes” the witness by offering him or her freedom?  In 2002 the Tenth Circuit Court of Appeals ruled: ”If justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so.”  Such squeal deals seemed like they would be prohibited.  However, the court overturned itself 9 days later, and prosecuting attorneys continue to troll the local jails looking to make bargains for testimony with inmates desperate for their freedom.  And that is essentially what David Partovi faced when Matt Dunham agreed to point his finger at Tyler Gassman and other Spokane locals.  Serving as Tyler Gassman’s criminal defense lawyer, Partovi sought to impeach the credibility of Dunham at trial.  Dunham’s cellmate told the defense lawyer that Dunham was making it all up to save himself, but the cellmate refused to testify.  (A criminal defense lawyer, unlike a prosecutor, can’t agree to give witnesses immunity).   After Tyler Gassman was convicted and sentenced to 25 years in prison for allegedly robbing drug dealers, the cellmate (Anthony Kongchunji) finally agreed to come forward.  Sounds like good grounds for a new trial right?  Spokane Superior Court Judge Michael Price didn’t think so.  He ruled that the defense lawyer erred by not hauling Kongchunji up to be made to forcibly testify.  Huh?  Doesn’t someone pretty much always have the right to take the fifth if they think they are going to incriminate themselves?   Apparently a police detective subtly (or not so subtly) implied that the cellmate could be facing perjury charges if he testified for the defense.  That could give any witness cold feet.

Right now, the case is on appeal.  We will wait and see.   Let’s ask Spokane prosecutor candidates what they think about this case?  Attorney David Stevens has announced his candidacy, as well as attorney Frank Malone.  Someone please ambush them at candidate’s night and let us know what they say.  Somehow, I have a feeling David Partovi will be in the front row with his hand up.

Shouldn’t prosecutor’s offices have some sort of written policy on offering leniency in plea negotiations in exchange for testimony?  What do you think?

(Photo does not depict any actual participants in this case.)

Spokane County District Court was voted among the top ten court website’s in the world.  See story.   The ranking was done by a private company called Justice Served, which provides court management services.  Sounds a little fishy. The company explains: “Limited jurisdictions are truly the “people’s court” and Spokane offers online payments, traffic postponements, traffic “mitigation” pleas and case/calendar indexes.”  I suppose it is nice that you can do all this online with Spokane District Court, because it almost impossible to ever reach a live person if you ever call their publicly listed phone number to conduct business.

According to a story in the Spokesman-Review today, a 20-year-old man was arrested for delivery of a controlled substance for selling marijuana cookies to high school kids for 3 dollars each.  According to the article, the Spokane detectives had done an undercover operation and arrested the suspect at the Pizza Pipeline on Wellesley Avenue.  The police claim the defendant sold the marijuana-laced cookies to high school kids on their lunch break from Shadle Park High School.  As you can imagine, the punishments are severe for an adult who delivers a controlled substance to a minor.  For a typical delivery of marijuana in Washington, a first time offender is sentenced to a standard range of 0-6 months.  However, the punishments for delivery of a controlled substance,(marijuana) from an adult to a minor carries a standard range punishment of 51 to 68 months in prison.  This is under RCW 69.50.406 which defines the crime as any one 18 or older who sells marijuana to someone at least three years younger.   The suspect in this case was arrested near the Spokane school.  Under Washington law, there are additional penalties for drug crimes that occur in school zones.  As a criminal defense lawyer, one of the things I would ask is who came up with the idea of meeting at a school.  In some instances it will be the idea of the police to have the suspect meet at a certain location.  I once had a case as a defense lawyer where I interviewed a drug informant, and he admitted that he and the police set up a deal to go down in a school parking lot (after the school was closed) to attempt to get a school zone enhancement.  The police officer in question denied this.  In this case testimony from actual children who purchased the marijuana would be quite damning, but that might not be the case.  As you can see from the article in the Spokesman-Review, that the Spokane police made photographs of the arrest available to the press as well as video footage.  Our government has a long history of manipulating the location of drug deals for dramatic effect in the news media.  In 1989, President Bush held a news conference and held up a bag of crack cocaine that he claimed was purchased at Lafayette Park right near the White House.  He used it as a prop in an anti-drug speech to dramatize how easy it was to buy drugs in the nation’s capital.  But later the DEA agents had to admit that it was their idea to meet at that park, and in fact the defendant didn’t know where the park was and he had to ask for directions.  See source.  In our system, it is the job of a criminal defense lawyer to ferret out the truth behind such things.

What roll did the police or informant play in the selection of the location in this Spokane case?  It will be interesting to see how this case turns out.

By Attorney Steve Graham

Police, judges, and other public officials often mess up like the rest of us by getting a DUI.   The cases inevitably make the newspaper, as well they should.  However, I am often a little surprised by how the media portrays DUI cases that are resolved with a “deferred prosecution”.  A deferred prosecution is when a DUI defendant gives up his right to a jury trial, and the case is continued for five years.  The defendant gets fives years of probation and alcohol treatment, and if he stays out of trouble then he may have the case dismissed at the end of 5 years.   Under Washington law, any DUI defendant is eligible for a deferred prosecution if he or she has not had one before.  So why is it that the news media portrays this as some sort of special deal reserved for people with “connections”.   For example, look at this headline in the Spokesman-Review: “Police Sergeant Avoids Prosecution“.   The article goes on to explain that the defendant has to go to alcohol treatment and stay out of trouble for five years.   How did the public react to this story?  Let’s look at the comments to the story that are posted online.  “Tinman” wrote: “WHERE DO I GET ONE OF THOSE ”GET OUT OF JAIL” CARDS FOR MYSELF??!!”   The answer is any district court in the State!  The forms are online here!  Last summer a city manager in Burien signed up for a deferred prosecution for a DUI, and the headline read that the judge “granted” the deal.  An angry comment read: “It seems we have a two tier judicial system, one for the rich/politician and one for Joe six pack.”  The truth is that the deferred prosecution is easy to sign up for, but difficult to complete.  The treatment is rigorous, and the conditions of probation severe.  Random UA tests are done that can detect alcohol use within a period of 72 hours.  People who complete the programs are in the minority.  I remember when I was a prosecutor, the judge and I were always glad to see someone successfully complete such a program.  Now that I am a criminal defense attorney, I always make sure that my clients know what they are getting into when they sign up for such a program.  It is truly for people who wish to quit drinking.

Article 1, Section 20 of the State Constitution reads, “All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great.”

Are bail bonds a thing of the past? More and more defendants are being held without bail.

In other words, Judges may not hold a person without bail except for defendants facing the death penalty. There is currently a pending law (SJR 8218) that would amend the State Constitution so offenses that may result in a mandatory life sentence upon conviction are also not bailable. To amend the Constitution, the matter would have to be placed on the ballot for the voters to approve in 2010. This law did not come as a complete surprise, however amendments to our constitutional rights should not be done hastily.   Defense attorneys are seeing the bail clause of the State Constitution come under attack in other ways.  Last month Snohomish County Superior Court Judge Eric Lucas affirmed the decision of a District Court that held a DUI suspect without bail pending trial because he had allegedly violated the conditions of his release.   See article.  In Spokane, I have seen judges hold defendants with bail in the amount of 20 thousand dollars before, or even higher.  But holding a suspect without bail for a DUI?  This was not even an instance of a felony DUI; the DUI at issue was just a misdemeanor. The purpose of bail is simply to assure the presence of the defendant in court and to protect community safety, not to punish the defendant.  The public defender’s office commented that this was the first case they had ever seen where a person charged with a misdemeanor is ordered held without bail pretrial.  What is next – a no bail hold for shoplifting?  Thank you to Jonathan Dichter, a Lynnwood DUI lawyer, for bringing this article to my attention through his Snohomish County DUI Blog.

The Seattle Times obtained audio copies of the phone recording of Maurice Clemmons talking to his wife in jail.  As you recall,  a few days after Maurice Clemmons was released, he walked into Forza Coffee Co. and killed Lakewood police Sgt. Mark Renninger, Officers Ron Owens, Officer Tina Griswold, and Officer Greg Richards.  The jail recordings of Maurice Clemmons are pretty eerie to listen to.  The jail phone recordings were obtained through a public records request.  Here is a partial transcript of the first one:

Maurice: I’ll kiss this bullet. Everywhere I go, I’m going to stay packing, stay ready.

Nicole: You just saying that ’cause you are upset right now.

Maurice: I put that on God. I ain’t going no more (back to prison) …

Nicole: Put your faith in God.

Maurice: I’m going to put my faith in God to kill every last one of them that come up on me. That’s going to be my faith — to kill every last one of them devils. There ain’t no such thing as justice. If there’s no such thing as justice, a brother’s gonna go ‘wild wild West.’ … They did it to me when I was young and now I’m a grown man and it ain’t happening no more.

For the rest of the recordings visit the Seattle Times article here.

You would think that if you were facing a charge as serious as capital murder, you would want to listen to your attorneys.   Well, in the Spokane murder case of State v. Christopher Devlin, the defendant apparently rejected the advice of his lawyers and beat the death penalty anyway.   Devlin is accused of murdering a witness who was expected to testify against him in an earlier assault case.  Devlin rejected the advice of his lawyer and refused to waive the thirty day notice required to seek the death penalty.  A defense lawyer will often seek to waive this to have more time to prepare a defense to the death penalty.  The State did not turn over their evidence in time, and the judge dismissed the death penalty allegation as a sanction on the prosecuting attorney.  See story.  The charge of aggravated murder still stands, and the defendant could still face a possibility of life in prison.  How does a defendant educate themselves on how to defeat a death penalty charge?  A grad-student from Massachusetts has published an online guide on eHow.com of all places.  See site.

Anyway, I am sure the defense lawyers breathed a sigh of relief when the death penalty allegation was dropped.  And it may be the case that the prosecutors breathed a sigh of relief too.  It was never really clear whether the alleged offense took place in Stevens County or Spokane County, and neither county wanted to bear the incredible expense of conducting a death penalty case.  See news segment below. The Stevens County Prosecuting Attorney, facing budget problems, flat out stated that he did not want the case. The defense lawyers wanted it moved out of Spokane.

Post by Steve Graham, Defense Lawyer.

Today in The Star Newspaper, there is an interesting story about a man arrested for an alleged robbery of a bank in Okanogan County.  The man, Brian Hickson, allegedly walked into a Coulee Dam bank and handed the teller a note that read “Give me your money.”  The teller refused saying “I can’t do that,” and Brian Hickson left.  The police stated that Hickson later told them it was a “prank”.

So does that constitute an attempted robbery?  Under Washington law, a person commits robbery when he “takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury….”  Was the alleged statement made by Brian Hickson a threat?

This case kind of reminds me about a case that went to the Supreme Court a few years ago called State v. Collinsworth.    In that case the defendant entered Washington Mutual Bank and approached the teller and demanded money.  He appeared to be “very nervous” and “fidgety,” told the teller in a “serious” tone of voice, “I need your hundreds, fifties and twenties.”   When the teller paused, unsure of what to do, Collinsworth said, “I’m serious.” As the teller started retrieving currency, Collinsworth said, “No bait, no dye.”  The Supreme Court explained that even though he made no overt threatening gestures and did not display a weapon, Collinsworth’s unequivocal demands for immediate surrender of the bank’s money, under the circumstances of the case , were sufficient to support a robbery conviction.

However, those circumstances appear to be different than the incident Brian Hickson was charged with.  When Collinsworth was charged, he was a bit more forceful with his point, and made explicit references to the dye that is used to deter crimes such as robberies.  It will be interesting to see what comes of this case.   I don’t think a jury will expect a teller to have a sense of humor about Mr. Hickson’s “prank”,  but on the other hand there doesn’t seem to be an clear legal precedent to support a robbery charge under Washington law.  It may be that the jurors will be given the option of considering a lesser charge.

By Steve Graham.

I read recently that on March 18th, 2010 there will be a training for lawyers on the subject of Indian Law. It is sponsored by the Spokane County Bar Association, Indian Law Section and Gonzaga University School of Law.  One of the speakers at the training will be my friend Juliana Repp, who I often run into in the Colville Tribal Courts.

Don't miss the Indian Law CLE on 3/18/10 in Spokane

I posted the pdf registration form online here.  The particulars are below. Back when I graduated from law school, a knowledge of Indian law was not required to pass the State bar exam.   This sort of training helps me catch up.  I do see criminal defense lawyers overlook Indian law issues in their cases from time to time.   I remember when I was a young prosecutor in Ferry County, a Native-American gentleman was explaining to a judge in State Court that he was not happy with the lawyer he hired to represent his son on a criminal case.  The lawyer was a very prominent defense attorney in Spokane, and the Judge explained to the father the attorney’s expertise and reputation in criminal law.  The father said that the attorney might know a lot about criminal law, but he did not know a thing about Indian Law.  And there was some truth to that, so the judge didn’t have much of a response.  The judge was Larry Kristianson.  I won’t tell you who the defense lawyer was.

Thursday, March 18, 2010

8:00 a.m.                   Registration and Coffee

8:30 a.m.                   Introduction and Conference Overview

George Critchlow, Acting Dean, Gonzaga University School of Law, Spokane, WA

Juliana C. Repp, Esq., Chair, SCBA ILS, Spokane, WA

Moderator

Jessica Lee-Domebo, Esq., Chair Elect, SCBA ILS, Spokane, WA

8:40 a.m.                   The Indian Child Welfare Act – Tribal and State Perspectives (Identifying an Indian Child; Tribal staffing of ICW cases; domicile; utilizing Indian Child Welfare experts; status of WA State ICWA)

Lorraine Parlange, Kalispel Tribal Attorney, Airway Heights, WA

Ricki Peone Haugen, M.S.W., Indian Child Welfare Expert, Spokane, WA

Buffy Nicholson, Social Worker III, CFS, Colville Tribes, Nespelem, WA

Brandelle Whitworth, General Counsel, Shoshone-Bannock Tribes, Fort Hall, ID

Jodi Felice, Assistant Attorney General for State of Washington, CFS, Spokane, WA

10:15 a.m.                 Break (hosted by Crowell Law Offices)

10:30 a.m.                 Tribal Court Practice; Inter-Jurisdictional Issues Arising in Tribal Courts (Tribal Court practice overview; abstention, exhaustion, removal; inter-jurisdictional issues)

Juliana C. Repp, Attorney at Law, Spokane, WA

Trudy Flamand, Chief Judge, Colville Tribal Court, Nespelem, WA

Suzanne Ojibway Townsend, Chief Judge, Confederated Tribes of the Grande Ronde Community of Oregon Tribal Court, Grande Ronde, OR

Winona Tanner, Chief Judge, Confederated Salish and Kootenai Tribal Court, Pablo, MT

11:45 a.m.                 Lunch (on your own)

12:45 p.m.                 Labor and Employment Law Issues for Tribes

(FMLA; ADA; Pension Protection Act; and Tribal Considerations in drafting Employee Policies and Procedures)

Greg Guedel, Foster Pepper, PLLC

Julie Kebler, Foster Pepper, PLLC

Scott Wheat, Crowell Law Offices, Spokane, WA

2:00 p.m.                   Break (hosted by the Kootenai Tribe)

2:15 p.m.                   The Spokane River – Keeping it Clean: Issues Regarding Multi-Jurisdictional Regulatory Oversight

Michael Chappell, Esq., Director of the Environmental Law Clinic, Gonzaga University School of Law, Spokane, WA

Rick Eichstaedt, Esq., Spokane Riverkeeper, Center for Justice, Spokane, WA

Brian Crossley, Water and Fish Program Manager, Spokane Tribe of Indians, Wellpinit, WA

3:30 p.m.                   Ethical Issues Arising in Tribal and State Multi-Jurisdictional Practice of Law

Brian McClatchey, In-house Counsel, Coeur d’ Alene Tribal Casino, Plummer, Idaho

4:30 p.m.                   Adjourn

4:35 p.m.                   Meeting and Elections for the Spokane County Bar Association, Indian Law Section

5:00 p.m.                   Reception hosted by Gonzaga University School of Law

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?

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?

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?

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)

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?

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.

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?

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)

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.

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?

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?

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.

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 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.” 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?

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 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.