Posts Tagged ‘ferry county’

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

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

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

In these decks of cards, all 52 are face cards.  Each one bears the face of a victim of an unsolved homicide.  The cards are distributed in prisons with the hopes that an inmate will provide a badly needed tip.

Ernest Jose Cervantes was shot to death during the robbery of his wife's beauty shop in 2003. The beauty shop was closed for Mothers' Day but he and his wife were just returning from selling flowers and balloons on the street for the occasion. The two had finished for the day and were returning the merchandise to the shop when three assailants entered the store.

While it is the high-tech C.S.I. investigation techniques that are featured on t.v. shows, it is often the low-tech solutions that solve real-life crimes. The idea of these cards apparently comes from the company Effective Playing Cards and Publications. This Florida company has produced cards in 10 states for distribution to inmates.   The company has created thirty different decks and targets the decks to each geographical area.  I received a set in the mail last week that were designed for the San Bernardino area of California.    The cards are created with the support and encouragement of the surviving family members who are glad that the cases are being kept alive and attention is being drawn to the deceased.  No cards exist for Washington State at this time.

In a prison culture where inmates have an abundance of time on their hands, the cards compels attention to the items in ways that a poster could not.  The maker of the cards credit the cards with having solved four different cases across the nation.  One homicide detective explained that distributing the decks is “like interviewing all 2500 inmates about 52 different homicides all at the same time.”

Despite the fact that this idea seems to be of little costs to investigative agencies, it has been a little slow to catch on.  And little seems to be known of these cards.  The below youtube video on the subject has been up for over 6 months, but has received only 68 views. 

In addition to the expense of the cards, there is certainly an expense to sorting out the tips when received from inmates. Inmates are not a very reliable group as a whole when it comes to tips. Many could be looking to strike a deal to earn an early release, or could be looking for a way to transform themselves from a societal pariah to a local hero for coming forward. Detectives will look to see if the informant has pertinent information on the case that could not simply be gleaned from reading the newspapers.

Sand Lynn Rollins' body was found in 1995 in a rural area. The card indicates that she was a transient. It appears that the photo used may have been a booking photo where she herself was arrested. Murder victims come from all sorts of different backgrounds, and it is the responsibility of police departments to assure that all cases are given a top priority.

I have learned in the homicide cases that I have worked on that in just about every high-profile case you will find attention seekers of all sorts claiming to have important information. Trying to determine the validity of such claims is not as easy as a person might suspect.

The playing cards in question focus on cold cases. Because crimes such as murder do not have a statute of limitations, police maintain an interest in such cases for decades. When I worked as a prosecutor, I often contemplated the value of police work on cold cases. Detectives in Ferry County made important progress in certain cases, see e.g. here. But there also needs to be accountability up the chain of command for time spent on cold cases. In general terms, not necessarily pertaining to my past position, I have feared that police work on cold cases sometimes consisted of having the case file spread out over several desks while a discouraged detective played solitaire. And such work is discouraging. You only need to review past Spokesman-Review articles with respect to the Spokane Serial Killer Task Force to learn how depressing that line of work can be. Big breaks in such cases are rare, and are usually preceded by years or decades of hard work done out of the spotlight. It is not the stuff of C.S.I. or newspaper headlines, but playing cards could be a helpful tool in resolving such cases.

I know it is an off year for elections, but there are still good election battles going on.  Let’s start with the Grant County prosecutor race.  It all started when Grant County Prosecuting Attorney John Knodell decided that he wanted to run for judge last Fall.  He ran for Ken Jorgensen’s seat.  When Knodell was elected judge, he resigned from his job as prosecutor in the middle of his term.  The commissioners then appointed Angus Lee for the position, who I blogged about in an earlier post.   Angus Lee is a charismatic, 30-something Iraq war vet who was working in District Court prosecuting such cases as DUI and assaults.

Angus Lee

He was interviewed by the Grant County Commissioners, and must have charmed them because he was selected over several more experienced deputy prosecutors.  Angus Lee faces a electoral challenge from Albert Lin, an amiable ‘97 Syracuse Law grad with lots of felony trials under his belt.

Albert Lin

Things got interesting when retired judge Ken Jorgensen weighed in on the political race in a letter to the editor.  Jorgensen attacked Angus Lee as inexperienced, asking “Would you hire an attorney who had no courtroom experience to represent you in an important trial?  Grant County interim prosecuting attorney Angus Lee has only been in the county for little over two years. He was admitted to the Bar in July 2005 and hired by Grant County in 2006. He has never tried a felony case in Superior Court. He has not even tried a case in Superior Court since he was appointed.”  It is true that Angus Lee is a pretty recent law school grad, but his education was delayed while he served in Iraq.

The voters seem to be turning a deaf ear toward Jorgensen, because Angus Lee was ahead in the primary.   Now that he is retired, I will say that Jorgensen seemed to get a little ornery as time has gone on.   The last time I had a case in front of him in Grant County, he became annoyed at me when I requested color copies of crime scene photographs, as opposed to black-and-white photocopies.  Ooooookay.  As to Angus Lee and Albert Lin, I have worked a little with both, and both would seem to do a good job.  The election contest has lit up the blogs down there, see for example Grant County PowerNet.

Meanwhile, up in Omak, Washington, we are witnessing an election battle for city council between Chris Thew and Nattalie Cariker.  Thew is a former reporter from the Omak Chronicle, and I enjoyed his news stories there.  He really seemed to try to cover all perspectives.  Reporters would seem to have good qualifications for running for city council.  They often sit through meetings, and are probably well versed on the Open Public Meetings Act, and Public Record Act.   Nattalie Cariker also knows a little something about the law, having worked as a police officer for the city of Brewster, and having studied criminal justice at WSU.  A big function of any city government is working with the police department.

Up in the city of Republic, retired-attorney Alexander Wirt faces a city council election challenge from Larry Heming.

An issue before the Republic City Council is the over-population of tame deer. Feeding the deer is illegal; allowing them to come forward and sniff an apple is not.

Alex Wirt ran for Ferry County Prosecuting Attorney against me in ‘98, and against other opponents in ‘02 and ‘06, but he never won.   He gave up his bar license when he retired, so he does not appear to pose an election threat against the current Ferry County Prosecuting Attorney Mike Sandona.  Mike Sandona faces re-election next year.  See earlier post.

In Spokane, lawyer Bryan Whitaker is taking on Tracy Staab for judge.

Bryan Whitaker

Bryan Whitaker is an attorney in private practice who also works as a pro tem judge.  He has highlighted the fact that he is actually a resident of the city of Spokane, while the incumbant Tracy Staab lives outside the city limits.  There is no requirement in the city code that a judge live in the city, but as a matter of Spokane pride this issue seems to have captured people’s attention.  The Spokesman-Review ran an editorial endorsing Tracy Staab and opining that the residency of the candidates should be a non-issue.  However, in an otherwise slow election year the Spokesman’s reporters continue to cover the debate on this issue.

Tracy Staab

The issue has dragged in other city officials who have been quick to get involved, including Bob Apple, who characterized Staab as a “carpetbagger” in an email.  Jim Camden wrote an opinion piece correcting his use of the term.   Tracy Staab has highlighted the fact that she received a higher rating from the Spokane County Bar Association, and has a broader array of support from sitting judges.

The job Staab and Whitaker are running for is the position of Municipal Court Judge.  The only criminal court cases that a Municipal Court Judge hears are misdemeanors and gross misdemeanors such as DUI, simple assaults, petty theft, and possession of small amounts of marijuana.  Both candidates have broad experience in their background including work as a prosecutor and as a criminal defense lawyer.

What are my predictions for the ‘09 election year?  That would put the winners as Angus Lee, Chris Thew, Larry Heming, and Tracy Staab.  Time will tell.

As always, I welcome everyone to post comments, but please limit input to constructive, thoughtful comments.

When a person thinks of their constitutional rights, they often think of their right to free speech, or to bear arms, or the right to a jury trial.  The Washington Supreme Court dealt last week with a right that we do not always think of.  That is, the right to a “public” trial.   This was in the case of State v. Strode, a case originating out of Ferry County.  The right to a public trial is in the 6th Amendment to the U.S. Constitution, which reads:   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In the case of State v. Strode the Supreme Court had to decide whether it was appropriate for a judge to question potential jurors in chambers, as opposed to the open courtroom.   On certain cases, the parties obviously want to know whether a juror has been the victim of, or been charged with the crime in question.   The practice usually involves the judge inviting the juror back to chambers, along with the prosecutor, defense attorney, and defendant.   The State Supreme Court ruled that this may be acceptable in certain circumstances as long as a certain analysis is done on the record justifying the decision.

Although we learn about our constitutional rights in school, lay people I work with are often surprised at the way that the right to a public trial works.   It is often thought that it is acceptable to “close the courtroom” at certain times or even to allow a child witness, for example, to speak to the judge privately in chambers.   Such practices are prohibited by the U.S. Constitution for criminal trials.

This right to a “public” trial has come up several times in my practice as a criminal defense lawyer.  I once had a trial where an undercover cop was testifying about work he did on a case.  Although his identity was known to me and my client, the agent still had other cases that he was working elsewhere in the state.  The prosecutor moved to close the courtroom, but the judge had to deny the motion.

As we know courtrooms are often pretty empty during a trial.  Often times the defendant’s family will be present or a spouse of a juror will attend. However, it is any person’s right to just come in to a court and watch a trial or a docket.  When I travel to different places I often like to visit the local courthouse.  I once sat through a half-day trial in New York City, and when I was in law school, I often sat through jury trials in Spokane.  The right to a public trial belongs to a defendant, but also to the public.  Often times, it is the news media who raises this issue.

I once worked as a defense lawyer on a First Degree Murder case in Ferry County where the issue of a public trial arose.   The electronic locks on the courthouse doors lock automatically at 4:00 p.m.  The attorney general prosecuting the case stepped outside for a breath of fresh air during the recess and was locked out.  After a while, when court was set to resume we wondered where he went and found him outside.   Needless to say, the settings were changed on those locks.  Although it may seem a bit silly to some, locked doors at a courthouse would have required a new trial had it not been fixed.

Several years ago, I had a case in Okanogan County where a 6-year-old child was testifying during a non-jury trial.   The case dragged on through the morning, and people started to arrive for the afternoon traffic court docket.   The courtroom that had been previously empty started to fill up, and the pro tem judge directed the bailiff to post a sign on the door directing defendants to wait outside until their case was called.  I wondered if this was permissible, but the issue never got to the appeal level.

In the case of State v. Strode, the Supreme Court granted the request of the defense attorney for a new trial.

A cougar visited Discovery Park in Seattle and made world news last weekend.  See BBC article.   The cougar was spotted by an employee in the 534-acre park.  (A square mile is 640 acres, in case you didn’t know that already.)  The animal was trapped and relocated to a more remote location.  Game agents placed a radio-tracking collar on the cat.

I found this news story funny, because the Fish and Wildlife Department has frequently taken the position that problematic cougar encounters were the result of human habitat encroachment.  In other words, Washington’s population boom led too many people to relocate to rural areas.   In the late-90’s when I worked as the prosecutor for Ferry County, I worked with the county commissioners to try to force the State to better assist rural residents in management of these cats.  When hound hunting was banned in the late 1996 (by voter initiative) it was widely predicted that there would be a large increase in cougar population in Washington.   In 1996, the Seattle-Times ran an editorial urging voters NOT to support a ban on hound hunting warning that such a ban could lead to yearly increases in cougar population of 10% as happened in Oregon.  Now a cat was found just a few miles from the newspaper’s downtown offices.   Symbolism is often an important driver of political change.

The sighting of a cougar in Seattle got far more media attention then the incident last Wednesday in Stevens County where a cougar attacked a 5-year-old child.  The boy was attacked when he and his family were hiking a trail in on Abercrombie Mountain along Silver Creek in the Colville National Forest.   The boy’s mother was near him when the cougar suddenly attacked from out of a brushy area.  The woman fought off the cat, and the parents took the child about 25 miles to the hospital in Canada.  See article.  In my opinion, the mother likely saved the child’s life by her actions.  Unlike fending off bear attack, most cougar attacks are stopped by fighting back aggressively.

As to the Seattle cougar, Department of Fish and Wildlife Capt. Bill Hebner commented: “We had over 450 confirmed dog attacks on an annual basis in King County and no cougar attacks; so that should help put it into perspective.”

Am I the only one who thinks that comment sounds glib?  After all, they did close the park down for 5 days until the cougar was caught.  You can see online the great expense and effort that Fish and Wildlife put into removing this Seattle cougar.  Does the department respond with the same vigor for problem cats in inhabited areas of Eastern Washington?

In the Seattle-PI article, Capt. Hebner admitted that Department of Fish and Wildlife officials initially thought the sightings of a cougar in Seattle could be bogus.   Hebner explained that he did not believe it until he talked to a woman that had seen one.    He quizzed her on the cat’s coloration.  He said the woman’s decription of the tail length was “spot-on.”    “She even described how it ran, and her description of it loping and running is exactly how a cougar would move,” Hebner said.   You really have to wonder about some of these top-level F&W guys.  What in the world else would this woman be describing if not a cougar?  Look at a picture of this particular cat here.  Could the caller really have confused that with another animal?  At 140 pounds it is 10 times the size of a house cat.  In the past, many Eastern Washington residents have complained that F&W officials in Western Washington are often dismissive of cougar fears, or stories of attacks.

Congratulations to Dick Graham, editor of the Republic News Miner, for celebrating his 100th birthday!   Dick Graham of the Republic News Miner is not really that old, but I am not 50 years old either, as many concluded after reading his newspaper last week.  The Republic News Miner ran a large birthday announcement, and did not differentiate Steve Graham (me) from his son Steve Graham who does not live anywhere near Ferry County.  Needless to say, I got a lot of birthday wishes.

I haven’t really noticed other Graham family member birthday announcements in the Republic News Miner over the years, but do remember ten years ago a similar birthday announcement when his son turned 40.  I asked Dick Graham about it ten years ago, and his response was that his son was here first.   True.   I look  forward to meeting the other Steve Graham some day.  Who would dream that I would move to a town of about 1000 people and face another Steve Graham?

Not much has changed in ten years.  Except one thing:  there is a thing called “new media“.  I wonder what birthday announcements will look like in the next ten years.

For the record, I am 39 years old.   If you see Dick Graham of the Republic News Miner wish him a happy 100th birthday.  He is a great guy – I consider him a friend – and he has a great sense of humor.

The Stevens County Commissioners are currently thinking over who they want to appoint to replace Pam Payne as District Court Judge.  As of 12 noon today, a decision had not been announced.  Pam Payne announced her decision to leave the bench last month.  When a Superior Court Judge resigns midway through a term, it is the Governor who makes the appointment.  But with District Court, the decision belongs to the County Commissioners.  Once the County Commissioners appoint someone, that judge faces an election of the voters.  Traditionally, County Commissioners often consider some input from the other judges who preside and often times other government officials and local lawyers write to offer their opinions.  The commissioners then interview prospective candidates.   As well as intelligence, experience, and fairness, the temperament of an attorney is typically considered.  There have been several attorneys whose names have been mentioned as interested in the position.

The District Court judge hears small claims, small suits, name changes, and presides of misdemeanors such as DUI, minor assaults, etc.   Pam Payne always seemed to be pretty well thought of by prosecutors and defense attorneys alike.  I practiced law in front of her regularly my first year of private practice in2003.  I always found her to be very fair.   Pam Payne, while she was a Stevens County Judge, often times would come to Ferry County once per month to preside.

Last week, I wrote about the young among us with electoral ambitions.  (article).  Now, I write about the older folks.  The Washington State Constitution prohibits attorneys from serving as judges once they turn 75 years old.

You are NOT taking my gavel

The State Constitution provides: A judge of the supreme court or the superior court shall retire from judicial office at the end of the calendar year in which he attains the age of seventy-five years. The legislature may, from time to time, fix a lesser age for mandatory retirement, not earlier than the end of the calendar year in which any such judge attains the age of seventy years, as the legislature deems proper.

Is that fair?

In June, I was at a training in Chelan, and State Supreme Court Justice Gerry Alexander was one of the speakers.  He mentioned to us that he would be unable to serve much longer because he would turn 75 before his term expired.  He did not seem too happy about that fact, but he did not solicit the help of the attorneys in trying to amend the Constitution.   Nevertheless, I have seen opinion pieces popping up suggesting that the law be changed to allow judges to serve longer.   There is a blog I read called  Supreme Court of Washington Blog, that brought to my attention an editorial in the Vancouver Columbian that strongly criticizes this mandatory retirement age for judges.  The Columbian points out that this rule was created in 1952, and that people are living longer.  I agree that this age limit of 75 should be changed.  Seeing Justice Alexander give his presentation in June, he certainly seemed like he was on top of his game.  When I represented Ferry County in front of the Supreme Court on a Growth Management Act case, he certainly seemed like a very thoughtful justice.   However, the Columbian editorial took the position that there should be no upper limit to judicial retirement age at all.  I am not sure I agree with that.  On one hand it makes sense to let the voters make up their own minds.  But on the other hand, it is a historical fact that sometimes judge in our society have not always known when to hang up their black robe.   In his book, The Psychology of the Supreme Court, Lawrence Wrightsman, writes:  Some Justices become physically disabled or even senile, but refuse to retire.  Justice William O. Douglas had a stroke on the last day of 1974 that left him partially paralyzed.  His speech was impaired, and one arm and one leg did not function.  he missed much of the 1974-75 term, returned in the Fall of 1975, and was not at full strength.  In fact, he was often confused and would refer to people by the wrong names, or not be able to respond at all.

But it is not just stubbornness that sometimes leads judges to hang on past their prime.  Wrightsman explains that several justices refused to retire until they could be assured that someone with similar views would replace them.

The Columbian takes the position that the answer to judicial retirement is simple – it should be left to the voters and that there should be no mandatory retirement age at all.  That would worry me.   Is it really dignified to have the possible senility of judges to be discussed in the public realm?  What attorney in his or her right mind would want to level that sort of accusation against a judge?  Is it left to the fellow justices on the court?   When William Douglas grew incapacitated while still on the bench, all the other judges agreed to simply continue to the following year any cases in which he was the deciding vote.  But none of those judges at the time publicly criticized the judge, or suggested his impeachment.  So is it left to the newspapers to ferret out judges that are too old for the job?  Does the Columbian really want to discuss the senility of justices in their election-year editorials?

What does everyone else think?  Should the upper limit be increased to 78 or 80?  Maybe the law should be changed so that any judge elected before age 75 could at least serve out the rest of his or her term.  What advantages are their to having a judge that is over 75?

Am I the only one who read in the Spokesman-Review yesterday the AP story about the Louisville, Kentucky pastor who encouraged church-goers to appear for services bearing arms?  See story.  (Sometimes the Spokesman-Review moves their stories offline right away – if so, click here for MSNBC version).  You have to admit, this is a pretty easy way to get attention.  And apparently, the pastor drew in a bunch of newcomers to his church, which is always probably a goal.   Seeing as the bible predates modern firearms by a few millennia, the pastor had a lot to say about guns, including criticisms of the Obama administration.  The pastor seems a little nutty, but he poses an interesting question:  Is it still socially acceptable to bear a firearm just for the heck of it?  A lot of gun enthusiasts hunt, target practice, and keep guns for home defense, and a lot carry concealed weapons.  But what about just wearing one in open while walking down the street, or to the grocery store, or to the city park just for the heck of it?  What about carrying one slung over your shoulder?  I don’t really see this too often even in the rural Western towns of  Ferry and Okanogan County where I practice law.

If you want to read a really interesting article, check out an earlier Spokesman-Review article about a couple of Idaho teenagers who decided to carry guns with them every where they went.  The 18 year old brother would wear a 9mm on his hip.  (Note, in Washington you would have to be 21.) And, the 15 year old brother carried a .22 rifle.   With these weapons in hand, the two visited the public library, city parks, bible study etc.  Even in North Idaho, people called 911 when they saw the armed teens walking down the street.  “If you don’t exercise a right, eventually it will go away,” the older boy explained.  “I’d like to raise people’s awareness that it’s a right, and I hope to encourage others to exercise that right.”  A gentlemen from a veterans group explained: “It’s disturbing to see them in a library with guns.”   Really?

The pastor in Louisville mentioned that he thought up the idea of asking parishioners to bring guns to church after he spoke with people who expressed concerns about Barack Obama’s views on guns.  Are we going to see a lot of similar protests in the months to come?

This phenomenon of carrying guns in public places is a rural, Western-states thing.  Under Washington law, cities are free to come up with their own city ordinances in this subject, and many have.

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?

My father was an engineer. He always marveled at how many bridges and aqueducts of the Roman Empire are still left standing. But he was perplexed at how many public works projects here in the U.S. are just disasters. He never really had an answer to this question.

The Pont du Gard aqueduct was built by the Romans in approximately 19 BC. It still stands today

This question of his came to mind when I started seeing a bunch of new public works projects in this area. I heard the federal government was assisting in some such projects as part of an economic stimulus bill. I remember when the City of Republic had a new shop built ten years ago. It collapsed soon after it was built under the weight of a heavy snow fall. I also noticed how the newly constructed front steps of the court house have begun to crumble and have been roped off.
In Spokane in 2006 the River Park Square parking garage crumbled and allowed a vehicle to roll out and fall five stories to the ground killing someone.
What is to be done about the slipshod work of construction companies on public works projects? What public works disasters am I over looking in the area of Okanogan, Ferry, and Stevens County? Email any photos that you think I should post to steve@grahamdefense.com.

On June 8th, I will be posting a poll to gauge what the public might be looking for in a Sheriff candidate next year in Ferry County.   Who do you think might be a good candidate?   As of now, I am going to post Pete Warner, Tom Williams, and Bret Roberts.   I don’t know what plans they might have on whether or not to run, but those are the three individuals in the area that have run for Sheriff in the past and are still employed in law enforcement.   Does anybody have any other suggestions for anybody else who should run, or should be included in this poll?   Have your suggestions in by the 5th.

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 . . . jurisdication 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 violations 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.”

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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.

Steve Graham is an attorney in Okanogan Ferry Stevens County