Posts Tagged ‘Court’

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)

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.

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

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

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

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

     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 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 farfetched 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, city residents were forced to boil our water for three weeks when it was determined that E. coli was found in the water.  This was a little bit of an eye opener for me.  Boiling water contaminated with fuels or solvents won’t help.  When our water was contaminated, I wondered what small cities do to fix the problem when they are financially unable to do so.

     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.  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 would be curious in knowing is whether the area is an aquifer recharge area.  If so, it is customary for a lot of airport functions and activities to be out right banned.

     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 if any 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 are much like the state and federal governments and can condemn private land for a public purpose and pay the land owner just compensation.  It is one thing when you are a farmer and you lose part of you land because of Interstate 90.  It is another thing when your and is taken by a local city council on a project that you 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 condemnor (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 be interesting to see what comes of this issue.

Earlier this week many local Native-American tribes protested the policies of the federal government 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 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 a 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 the protest 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.  That took courage to take that step. I would have half expected the Feds to arrest some of them.  I guess then it would have become a national story, rather than a regional story.  I hope the Tribes pursue their rights in this respect.  So 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. seem sometimes 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?