Posts Tagged ‘attorney’

Washington Residents Struggle to Expunge Criminal History Data

Under certain circumstances a person convicted of a crime can take steps to get the conviction off his or her record.   When this is achieved, the court orders police agencies and court clerks to change their records.   A problem arises in that private data collection companies are gathering conviction data through public records requests and maintaining and selling such records long after the conviction is vacated.  This is not fair to the individual who attempted to vacate, or expunge, or seal the record.

Private data collections, many of which advertise online, continue to sell criminal conviction data on records that courts of vacated or expunged.

Private data collections, many of which advertise online, continue to sell criminal conviction data on records that courts have vacated or expunged.

Most court records on criminal cases are public.  Even juvenile court case files are typically open to public inspection.  The items in a criminal file that are not open to the public are such things as psychological evaluation, applications for appointed counsel, etc.  Typically, if a person has stayed out of trouble for a certain number of years, then they can apply to have their conviction vacated.  This is true of most misdemeanors (except DUI) and most low-level felonies.  A site that provides some guidance on how to seal and vacate convictions is www.courts.wa.gov.  The site also explains the process of a juvenile court expungement.  As you can see from the standard misdemeanor form provided, the court will order that: “For all purposes, the defendant may state that he or she has never been convicted of the offense listed….” Reading this, a person feels free to deny the existence of ever having such a conviction when they apply for a job.  Employers will often try to get applicants to list convictions that have been vacated or expunged.  Often an application will read as follows: “Have you ever been charged, convicted or admitted committing, or are you awaiting trial for any crime? You must answer “yes”, even if the matter was later dismissed, deferred vacated or expunged.”  A potential employer will often use public records searches to check for criminal convictions.  Searching an individual’s criminal history is not always very difficult.  Earlier this year, I wrote an article for Helium.com about criminal history searches.  A person need not be an attorney or lawyer to conduct such searches.  Searches through these traditional means will not typically turn up convictions that have been vacated or expunged.  The problem arises when criminal history searches are conducted through private data collection services.  The other thing that I  have found is that many times the criminal records that these private companies provide are inaccurate.  I worked as a defense lawyer on a court case in Stevens County last year and used an online service to run criminal history checks.  It turned out that when we checked the same individuals through the FBI, that the online service only had about half of the conviction data correct.

In my opinion, new legislation is needed to require that private data collection companies provide accurate records.  If an individual succeeds in vacating, sealing, or expunging his record, the online services should have an obligation to update their records as well.

Since I mentioned Helium.com, let me tell you a little more about that.  Helium is an online writers cooperative that also provides services for writers who also blog.  Visit that site or email Barbara Whitlock at  bwhitlock@helium.com for more information.  Helium is always looking for attorneys and other professionals with expertise to share to join their writer’s community.

Attorney for City of Spokane Faces Criticism in Handling of Zehm Suit.

The Spokesman-Review  ran a story Thursday raising questions about the way an attorney for the city, Rocky Treppiedi, has gone about defending the lawsuit filed by the relatives of Otto Zehm.    The attorney is defending the city of Spokane from a lawsuit filed by the relatives, while at the same time federal prosecutors are investigating and prosecuting Officer Karl Thompson who was involved in the death of Zehm.  (See earlier related blog post).    The Spokesman-Review reported that Treppiedi has been accused of “gleaning information from police and civilian witnesses called to testify before the federal grand jury and then [feeding] that information to  Thompson….”   And that this occurred even after the Spokane Police Chief imposed a gag order on her employees.   Treppiedi is not a police department employee.  At this time, it is not entirely clear how this was inappropriate.  The city attorneys will have a chance to respond in writing to this allegation, which was apparently brought by an attorney in the criminal case.  The attorney has been accused of taking a heavy-handed approach to defending the city, and the Otto Zehm case raises interesting questions of what a city attorney’s job is when defending allegations of police misconduct.  Creates a legal pleading

While I understand the charges against the police, I don’t understand how the city attorney has come under so much fire.   When government employees mess up, even in a big and public way, it is still the city’s job to try to defend the matter.   After the city was sued, the city filed a formal response to the suit as required by law.  The response took the position that the officers’ response and their use of force was justified by the actions of Otto Zehm on the night in question.  The Spokesman-Review reported on this in a story entitled: “Zehm to blame for fight with officers, city says”.   The story explains how the Treppiedi’s response took the position that any use of force against Zehm was justified because Zehm resisted arrest.  When I read this at the time it seemed like the city attorney was just doing his job.  It is his job to defend the actions taken by the officers on that night in question, and he is really just the messenger.  Attorneys have clients to defend.  For some reasons this seems to be better understood by the public when an attorney is representing a person accused of a crime, rather than a governmental agency in a civil suit.

Spokane City Councilman Bob Apple criticized the way that the city defended the Zehm lawsuit.  (Listen to interview.)  He described the city’s position as an attitude of basically, ‘We’re not responsible and this life [Zehm's] isn’t worth anything.”   He is correct that the city is denying responsibility, but when I read the entire response the city filed, I did not see the city attorney say or even suggest that Otto Zehm’s life was not worth anything.

I saw a letter to the editor Friday from Karen Dorn Steele, a former reporter for the Spokesman.   She criticizes Treppiedi, and complains about a lot of things he has done in the past that she does not like.  Fair enough.  But then she writes: “A city attorney is supposed to represent the public interest, not a few rogue elements of the police department.”   Unfortunately, the city attorney has to do both.  He has to vigorously take the position that the police acted reasonably, and the other side takes the position that the police did not.  And then the jury makes the decision.  In this case, it would not surprise me if the city is found to be liable for a million dollars or more.   But if the city is to be found liable, the public needs to know that the city did its best to minimize the damage.  You would hope that when a person is harmed by the government that the government would try to resolve this outside of court for fair compensation.  However, these discussions are rarely made public, so it is really hard to say if the city is playing hardball in this case.

Relations between the city attorney and the Spokesman-Review are not helped by the fact that Treppiedi once referred to the paper as the “local fishwrap”.  See story.   The city attorney made this statement in an email to Mayor Jim West when West faced a scandal involving sex with a high school  student.  Treppiedi told West: “Mr. Mayor – hang in there – the local fishwrap is out to sell papers, and you’re out to serve citizens.”  While it is a city attorney’s job to defend the actions by city employees, it is also his or her job to try to prevent any misconduct from happening again, and to minimize damage.    A city attorney’s job is to tell the city bluntly how the employee messed up and to work with city leaders how to prevent the problem from happening again.  But again, this is all out of public view.  I guess in the instance of his email to West, the city attorney may have been better off telling West to resign, or at least saying nothing.

I once had the chance to assist in defending a government from allegations of police misconduct.  The lawyer from the insurance company (who was paid buy the hour) did not want to tell the police the truth about how they messed up, and did not want to make any settlement offer at all.  This made him very popular with the police, but actually did the police a disservice by not helping them learn from their mistake.  I let the insurance company know how I felt.

I hope that the public doesn’t forget about the broader issues of police accountability.  Sometimes there is a highly publicized excessive force case, and people forget about the smaller cases.  Rodney King, for example, was assaulted by the police,  and received a settlement of 3.8 million.  But I am sure there were less sensational cases of police abuse where the victims could not even find an attorney, much less receive compensation.  The public deserves a police ombudsman with sufficient powers to curtail the problem.

On Monday, I did a jury trial in Spokane where a man was accused of assaulting a police officer.   The police officer tazed my client several times.  Under the police guidelines, an officer cannot use the taser unless facing “assaultive” conduct.  I suspected the police alleged that the “assault” occurred in order to justify (after the fact) the amount of force that the police used on him.  The officer testified well and seemed very credible.  The next day an independent witness came forward and stated that, unbeknownst to the officer, she had witnessed the whole incident through  her blinds.  She did not see the defendant assault the officer, and the jury believed her.

Spokane Law Enforcement Rally Behind Officer Karl Thompson

I noticed in my years working as a prosecuting attorney that police officers often had a rather black-and-white view of the world.  It was good versus evil, with not a lot of in between.  They did not seem to wonder too often if a person charged was truly guilty – it was usually assumed.   I don’t think I ever heard it questioned whether a defendant was receiving a fair trial, or if the media was giving the accused a fair shake.  Then, on June 22nd, 2009, it was announced that Office Karl F. Thompson was being charged in federal court with two felonies related to the death of Otto Zehm, the mentally disabled janitor the police beat and tased at Zip-Trip while he bought a soda on March 20th, 2009.   As that indictment was handed down, I kind of wondered what response the police community would have to Karl Thompson’s indictment.  Would they explain his actions away as those of one bad apple, or would they rally in his defense?

THOMPSON PICWell, I received my answer this week when I noticed online that Karl Thompson’s supporters had created a Face Book “fan page” for him.   The page promotes the sale of bracelets for $10 each.  The page blames the media for making Karl Thompson a “media scapegoat,” but then writes: “Thanks to the story in the Spokesman-Review, demand for the wristbands has increased.”  As of today, the page had almost 230 fans.

See news story about indictment:

I will continue to follow the case of U.S. v. Karl Thompson, as well as the civil suit the family of Otto Zehm as brought against Karl Thompson and the City of Spokane.   The Center of Justice in Spokane has a website about Otto Zehm. A central issue in both the civil case and the criminal case will be Thompson’s compliance with Spokane County’s use of force policy. The policy authorizes varying level of force depending on the threat that the police encounter. Creates a legal pleading

When interviewed by police officials, Karl Thompson admitted that Otto Zehm did not try to strike him, but explained that Zehm refused to drop the plastic bottle of soda he was carrying. Thompson stated that he feared the two-liter bottle could be used as a weapon.  When interviewed, Thompson explained that the learning-disabled Zehm responded “why?” when Thompson told him to drop his soda.  Thompson explained that he struck Zehm first in the leg with the police baton trying to knock him to the ground. The store video in Zip Trip is partially obscured by the store shelves but it shows the officer standing over Zehm from behind.

Feasibility Study of New Colville Airport Causes Concerns for Aquifer and Pollution.

The Colville City Council recently voted unanimously to go forward with a feasibility study for a new airport that would be constructed in the area of Aladdin Road in Colville. Many members of the public in Stevens County are up in arms over this due to environmental concerns. Judging by the letters to the editor and discussions with a few of the locals, the city may have a fight on their hands.

The Statesmen-Examiner reported that people living near the planned airport expressed concerns at the public meeting about the noise of a new airport. In addition the public expressed concerns about air pollution and the threat to the city aquifer. Although I have dealt with issues of ground water contamination before, I have never dealt with the subject of contamination from an airport. A lot of the letters to the editor in the Statesmen-Examiner raised some pretty serious environmental fears. One letter wrote:

The airport would be built directly over the Colville aquifer, the source of Colville’s water. Concerns were expressed that the building on this land will compromise the integrity of the aquifer. Former pilots gave personal accounts of fuel leakage and ground contamination at other airports, stating, “over time, jet fuels will even seep through concrete.”

This seemed a little far fetched to me. It seemed to me that the leakage of jet fuels would be pretty minimal, and it seemed that such fuel would be quite light, and would not permeate concrete. So I called an independent source that I know on the East Coast who works as an expert witness on the subject of ground water contamination. He is pretty sensible in his assessments of environmental threats. He told me that airports are in fact significant sources of groundwater contamination from jet fuels and solvents, and that all airports have some level of contamination associated with them. He explained that contamination comes from broken fuel lines, fueling accidents, painting stations, repair shops etc. He explained that concrete is in fact permeable. He said that the permeability of concrete is low, but even if just a small bit of contaminant permeates into the water it will violate standards.

I learned not to take drinking water for granted earlier this year. In my town, residents were forced to boil our water for three weeks when it was determined that E. coli had been found in the water. This was a little bit of an eye opener for me. But boiling water contaminated with fuels or solvents won’t help. When our water was contaminated, I wondered what small cities can do to fix the problem when they are financially unable solve the problem.

So, as to the proposed new airport in Colville, when is the proper time to consider the impact on the aquifer? Right now the city is just doing a feasibility study. Yet Stevens County residents complained about the cost of that study. Should a threshold determination be made to determine whether the airport location would be even environmentally possible? Or would the subject wait years later until an environmental impact statement is done? One question that I have is whether or not the area is an aquifer recharge area. If so, it is customary for a lot of airport functions and activities to be banned out right.

The other subject that came up in the letters to the editor was the subject of air pollution. It would be interesting to hear what an expert would say about this. Some comments by members of the public were about the severe winds in the area of the airport. Other members of the public mentioned that the area was prone to stagnant air that would allow air pollution to accumulate. Maybe the weather varies.

In the last two weeks, all the letters to the editor in the Statesman Examiner have been opposed to the new airport and the feasibility study. The Statesman Examiner typically has a policy of limiting letters to the editor to 300 words, but allowed one letter that was close to 2000 words and took about nearly ½ a page. It will be interesting to see if supporters of the airport or of the feasibility study will submit any letters to the editor this week.

Aside from any environmental concerns, some members of the public did not want the airport because it would involve the condemning of private lands. Although people tend to forget this sometimes, cities have similar powers to condemn private land for a public purpose and pay the land owner just compensation, just the state and federal governments can do. It is one thing when you are a farmer and you lose part of your land because of Interstate 90. It is another thing when your land is taken by a local city council on a project that you and the community do not think is worthwhile in the first place. In the past, city governments could vote to authorize land to be taken without any special notice to the landowner in advance. But under a new law enacted in 2007 (RCW 8.25.290) a city must send a certified letter to each landowner who might face the condemnation of his land. The notice must contain a description of the property to be taken, and must notify the land owner of the date and time of the public hearing at which time the condemner (the city) will decide whether or not to authorize the condemnation of the private land. In cases that I have defended in the past, it seems as if sometimes governments go out of their way to find an appraiser that is particularly conservative. As an attorney, I have found that hard feelings are common in these small-town condemnations because oftentimes the city council members are the friends and neighbors of the landowners. If a condemnation is fought in court, a judge decides whether the condemnation is for a public purpose, and a jury decides the amount the landowner should receive.  The lawyer for the landowner commonly seeks his or her own expert to testify as to the value.

It will be interesting to see what the feasibility study comes up with. If the study encourages the City of Colville to go forward with the airport as planned, it will more be interesting to see what comes of this issue.

Native-Americans Protest Treaty Rights Infringements in North Okanogan County

Earlier this week many local Native-American tribes protested the Federal government policies restricting their rights to cross the Canadian border. The problem had been brewing for some time. See High Country News.

When I first moved to Ferry County in 1996, it seemed as if this was the county that was poised to enter big legal battles with the Colville Confederated Tribes.  The two governments were set to square off over who had primary jurisdiction to regulate land owned by non-Tribal members on the Reservation.  The subject dominated local politics and was the subject of frequent letters to the editor.  The Tribes were rumored to have a “million dollar war chest” to fund any litigation with the county.  The county commissioners appointed me county attorney in April 1998, and I urged caution on the part of the county. When you are looking for a good “test case” to bring to court, you don’t necessarily want to join the side of the first non-Tribal landowner to raise his hand.  In the end, a legal battle was avoided, and in my opinion Ferry County and the Tribes have worked together fairly well for the last ten years.

So I am glad to see that it was the Federal government this time that has drawn the ire of the Colville Tribes and has been accused of violating treaty rights.  This has come to the media’s attention rather recently as Tribal members have become fed up with being harassed by U.S. Border officials as they travel to and from their ancestral homelands across the border in British Columbia.  As someone who lives near the border myself, I have often found it frustrating to deal with border officials when I travel to Canada.  In addition, as an attorney I often represent defendants who get caught up in border issues.  The difference, of course, is that local Tribal members have special treaty rights to cross the border.  Under the Jay Treaty of 1794, Native-Americans were granted the right to engage in trade and travel between the United States and Canada, which was then British Territory.  Until 9/11 no one seemed to question the rights of Tribal members to travel to and from Canada with just their tribal ID cards.  But now, there is pressure on the Tribal members to give up the ID cards of their own government and to use passports or state enhanced drivers licenses. Local tribes are now considering issuing their own passports.

This controversy boiled over on June 1st as local Native Americans and Tribal members from Canada staged a protest in the border town of Night Hawk.  The protest was peaceful, but the Omak-Chronicle reported that it involved the removal of a border fence.  The Border Patrol did not try to intervene as the Tribal members crossed the border and back again.  I have to hand it to these protesters.  It took courage to take that step. I would have half expected the Feds to arrest some of them.  But I guess then it would have become a national story, rather than just a regional story.  I hope the Tribes pursue their rights in this respect.  Often it is the local governments or the States that are accused of violating treaty rights,  the Tribes are right to stand up to the Federal government too.  The Tribes in the U.S. sometimes seem to be the favorite underdog of the federal judiciary.  I can easily see the Ninth Circuit Court of Appeals approving the rights of Tribal members to set up their own border check point.  However, unlike 10 years ago, when the Colville Confederated Tribes had money set aside for litigation, the Tribes now are suffering a budget crisis.  This border issue is something that I will try to follow closely.

What do you think?  What will come of this issue?  Is it fair to ask Native Americans to use State ID cards when they enjoy rights to sovereignty?

Large Pay Raises for Washington’s Rural Prosecutors Spur Speculation on Candidates

It is not too often that you hear about public officials getting a 60 or 70 percent raise in a given year; but that is exactly what happened to many of Washington’s prosecutors last year.   The biggest beneficiaries were the elected prosecuting attorneys in Washington’s most rural counties. Many of the small town prosecutors toiled away for years making 45 or 50 thousand. Until July of 2008. In that hot summer month it wasn’t the heat that was making the small-town prosecutors of Washington swoon. It was the heady feeling of new found economic largess. That July in Garfield County, for example, the elected prosecuting attorney went from making 52 thousand per year to a 100,000. In a rural county closer to my home, the elected prosecutor went from 62 thousand to 106 thousand per year. The rationale of the pay raise was explained by the executive director of the Washington Association of Prosecuting Attorneys. As covered by a blog of the News Tribune, McBride explained that small counties often have trouble finding people to run for prosecutor because it pays so little. And when they do find someone, they stay only one 4-year term and then go back to private practice so they can make more money. Well, McBride was right.  Prosecutors are now hoping to stay in office alright, but their new found glee was short-lived as they quickly realized they would have a target on their back in the next election of 2010.

Is it just me, or am I the only traveling lawyer who has gotten sick of all the speculation as to who is running for prosecutor in such counties as Ferry, Garfield, Okanogan, Stevens, Columbia, Asotin etc.?  It seems like small town defense lawyers, divorce lawyers, etc are already trying to recast themselves as potential candidates for prosecutor.  I am a former prosecuting attorney myself, and maybe that is why a defense lawyer recently approached me for advice on how they can work his image for a 2010 candidacy. Defense lawyers who have for years opposed the death penalty and have publicly supported the legalization of drugs are now working to garner a conservative, law-and-order vote.   Will these defense lawyers still have the same zing to their cross examinations of law enforcement officers?

It seems like incumbent prosecutors are also feeling the pressure from potential new arrivals escaping the economic downturn.  It is no secret that there have been considerable lay-offs at the larger public defense agencies in this state, as well as larger firms laying off newly hired associates. Some of these attorneys are filtering down to smaller counties. Transplants are discovering the liberal residency requirement for candidates in this state. Under State law, a candidate must only live in the county in question for 30 days before he declares his candidacy. Many of these small towns are quite a bit off the beaten path, and don’t see too many new lawyers in town. When I am on the road for court, or even here in town, I am regularly asked if I am planning to run for prosecutor.   How do you tell people “no” and have them accept that?  When I say “no, I am not running for prosecutor” it seems like people always study my face for a minute to see if I am being coy.   There are already three- and four-way races discussed.   The year 2010 should be interesting for those of us sitting on the sidelines.  What do you think?  How much will these pay raises change the 2010 prosecutorial election races?

(Steve Graham was elected Prosecuting Attorney for Ferry County in 1998 when he was 28. He did not run again.)

Possible Challenge to Jury Venire for Native-American Defendants in Washington Counties Overlapping Reservations

I have run into an interesting issue that I raised in court, only to have the matter settle. If anyone encounters this problem and seeks assistance, I would not mind the pro bono work.  Due to their locations, an Okanogan or Ferry County attorney could challenge the current method of selecting juries.

Under Washington Law, jurors must be selected evenly from the populations as a whole. A problem arises when State Courts conduct jury trials of Indian Defendants. The current method of drawing jurors does not reach Indian residents living on trust or allotted land. Such summonses are a form of state court civil process. Under the case of North Sea Products v. Clipper Seafood, such state civil matters are unenforceable on Indian Reservations. 92 Wn. 2d 236, 595 P.2d 939 (1979) (invalidating a state-court garnishment). Additionally, the punishments under RCW 2.36.170 for failing to report for jury duty do not apply to Indians on trust or allotted lands. RCW 37.12.010 provides that the “…state of Washington hereby obligates and binds itself to assume criminal . . . jurisdiction over Indians and Indian territory,… but such assumption of jurisdiction shall not apply to Indians when on their trust lands or allotted lands within an established Indian reservation…” Indians are 16.5% of the Okanogan county population according to the U.S. census. In Ferry County, the figure is 20%. The exclusion of this body invalidates the process.  Who comes to serve, and who does not come to serve, must be random. One case on point is Brady v. Fibreboard Corp., 71 Wn. App. 280, 857 P.2d 1094 (1993), review denied, 123 Wn.2d 1018, 871 P.2d 599 (1994). In Brady, the court of appeals reversed a jury verdict because of procedural irregularities. When several jurors on the list did not appear, plaintiff’s counsel asked why, and “the judge responded that they had never been called in.” Id. at 282. Other judges had excused the jurors, and the court of appeals reversed the verdict and explained: “The procedures used here abridge the statutory mandate of random selection. It is undisputed that the initial panel of 90 was randomly selected. However, the randomness of the panel was destroyed when 14 of the 90 were eliminated by the process employed here.” Id. at 283. Like the 14 missing jurors in Brady, many native jurors will have “never been called in.” Aside from the constitutional precepts violated, this is a violation of statute mandate reversal. “When statutory jury selection procedures are materially violated, the claimant need not show actual prejudice; rather, prejudice is presumed.” Id. at 283. One case I looked at is Taylor v. Louisiana, 419 U.S. 522 (1975). In that case, Louisiana’s method of drawing jurors to court was found to be unconstitutional. Louisiana summoned men to appear, but made women’s attendance optional or voluntary. The court in Taylor v. Louisiana visited earlier cases and explained:
A unanimous Court stated in Smith v. Texas, 311 U.S. 128, 130 (1940), that “[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” To exclude racial groups from jury service was said to be “at war with our basic concepts of a democratic society and a representative government.”

***
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S., at 155 -156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.

The court struck down a murder conviction due to the failure to compulsorily include women in jury pools. The best solution would be to ask our Federal Courts or the Colville Tribal Court to issue jury summonses to the Tribal member for the State. This procedure would render the summonses valid. Unlike a mailed state-court jury summons, a summons of a Federal Court of Tribal Court will compel attendance. It is, of course, a crime to ignore a court order or summons under Federal and Tribal law. The Federal Court clearly can enforce, or re-issue State Court process on reservations. As to the Colville Tribal Courts, their cooperation with State Court process is largely discretionary under Section 1-1-102 of their code. The Ferry County Superior Court Judge could order the Ferry County Clerk to send all on-reservation summonses to the Colville Tribal Court for compulsory lawful services under tribal law.

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Photo of Steve Graham Steve Graham is a criminal defense lawyer who works in eastern Washington, including Spokane, Grant, Ferry, Stevens, Lincoln, and Okanogan, and Whitman counties. Visit his website by clicking: www.grahamdefense.com
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