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.

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.)

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

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.

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.

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.

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