Posts Tagged ‘lawyer’

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)

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.

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.

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.

The Washington Supreme Court ruled Friday that Tribal police officers may pursue suspects off of reservations to make arrests.    That surprised me.  I always viewed the Tribal authority to make arrests as stopping at the border.

The case is State v. Loretta Eriksen.  A Lummi Nation police officer saw Eriksen commit traffic infractions, and then followed her off the reservation and detained her.   The case analyzed what authority the officer had to detain her off of the reservation.  Eriksen was later charged with DUI.  Her criminal defense lawyer questioned the legality of her stop in district court.

The subject of police officers acting outside of their jurisdiction arises often in my practice.  People often ask me what jurisdiction a city cop has in the county and vice versa.  Under Washington law, the police agencies of Washington State permit vehicle pursuits between local governments under the  Washington Mutual Aid Peace Officers Powers Act of 1985.  The Supreme Court rationalized that the Lummi Nation could act just like a local Washington police force.  However, under Washington law, the Mutual Aid Act (RCW 10.93.120(1)) states  “[a]ny peace officer who has authority under Washington law to make an arrest . . . .”  I guess I just don’t read that as applying to the agents of sovereign political tribes.  I tend to think of Indian Tribes or Nations as separate nations, and was taught this in law school.  Would you expect the police of Mexico or Canada to follow suspects across the border and detain them in the U.S.?

The attorney for the Lummi Tribe, in a persuasive friend-of-the-court brief, argued that to interpret the Mutual Aid Act to apply to local Washington governments but not Tribes would be discriminatory.   I really wonder in the long term if Native-Americans really want their Tribes to be analogized to another local Washington government.  In just about any other court case, the attorneys for the Tribes are analogizing themselves to separate nations such as foreign countries.  Local municipal entities in Washington are not sovereign entities in any way shape or form.   All cities, whether Republic, or Okanogan, or Seattle exist because the state legislature allows them to under RCW title 35.  Local governments are not sovereign or even quasi-sovereign.

The point of the Washington Supreme Court in this case was that people should not be able to flee accountability to Tribal police officers simply by driving of the reservation.    That is true, but it should really be up to the legislature to fix this with a new statute.  Instead, the court created this rule with a somewhat strained reading of the current Washington Mutual Aid Peace Officers Powers.   Another problem I had with this court decision is that the Whatcom County Sheriff’s Department could have eliminated this problem by cross-commissioning the Lummi Nation police.   The defense attorney for Ms. Eriksen pointed this out in his brief.   He explained: “Sheriff of Whatcom County can give tribal officers the power to arrest under Washington law by cross deputizing them, but he has not done so.”  While it is common for Sheriff’s departments to cross-deputize Tribal officers, there is also some discrimination too.  Some county or city law enforcement agents view Tribal Police departments as inferior to their departments.  In my experience, the Tribal Police departments are certainly on par with local agencies, and often exceed local agencies in manpower, and with expertise in the collection of evidence.  The decision of the Supreme Court does not mention the failure of the Whatcom County Sheriff to cross deputize the Lummi Officers.  I feel this kind of lets him off the hook.

In the years to come, certain question will need to be clarified.  If a tribal officer is permitted to leave the reservation to make a detention, how long does an officer have?  Does the officer need to be directly following the vehicle, or can he locate the suspect many hours later at his home in Republic, or West Omak, or Grand Coulee?  If the vehicle successfully eludes the Tribal Officer, can the officer then conduct a man hunt off reservation for the suspect?  What implications will this decision have for the Spokane Tribe or Colville Confederated Tribes?

I discussed other issues related to tribal sovereignty in an earlier post on June 6th.

I read in last Sunday’s Spokesman-Review of the steps many pharmacies were taking to stop oxycontin robberies.  Then three days later, I read about another Spokane oxycontin robbery.  For those of you haven’t followed the news, the precise problem is addicts going into  pharmacies with a weapon demanding oxycontin pills.  Sometimes, a robber merely pretends to have a weapon or simply writes a threatening note.  According to news reports, Washington State leads the nation in oxycontin robberies.  See story.  A typical oxycontin robbery job goes something as described in this police wanted photograph.  

I am sure this is not fun for the store employees.  Prior to oxycontin coming on the market, I don’t really remember ever hearing too often about pharmacy robberies.  There just is something about oxycontin pills that drives the addicts crazy in a way that morphine or percocet does not do.  The Walgreens in Spokane made national news last week when they announced the problem of oxycontin robberies was so bad in Washington that they were placing special time-delay safes in all stores.  The safes take several minutes to open – the idea being that a robber is not going to stick around for ten minutes or so.  I wonder about this idea.  What pharmacy clerk really wants to break the news to a drug-crazed armed robber that they have to wait ten minutes?  If I were a clerk I would rather just have a bottle handy  right there by the counter I could toss in a hurry.   Drug-crazed robbers are dangerous, and Seattle robbery Detective Mike Magan explained: “I’ve always said the person who commits pharmacy robberies for oxycontin is the most dangerous person you’ll come up against…”.  (See story).   To combat oxycontin robberies, the Seattle police department provided a tracking device to a pharmacy to put in with the oxycontin  should a robbery occur.   (See story.)  The man they caught was suspected of committing 16 robberies of pharmacies.

In response to such robberies, the elected prosecutor from King County, Dan Satterberg, is pushing the state legislature to increase the penalties for these oxycontin robberies.   The Washington Retailers Association is also supporting this.  I won’t argue against such ideas, but I would encourage or legislatures to remember how we got into this mess in the first place.

How about the pharmacautical company Purdue-Pharma that invented and mass-marketed oxycontin?  The company agreed that it committed a felony when it marketed oxycontin and hid how unsafe it was.  The company faced 600 million in fines after it plead guilty, but how come the executives never went to jail?  (See news reports).  According to a story in the New York Times, “…Purdue Pharma contended that OxyContin, because of its time-release formulation, posed a lower threat of abuse and addiction to patients than do traditional, shorter-acting painkillers like Percocet or Vicodin.”   Lower threat then Vicodin?  This false claim by Purdue Pharma was the center of their aggressive marketing campaign.  Just a few years after the drug’s introduction in 1996, annual sales reached $1 billion.  According to the above mentioned article, “Purdue Pharma heavily promoted OxyContin to doctors like general practitioners, who had often had little training in the treatment of serious pain or in recognizing signs of drug abuse in patients.”  The story continues: “…both experienced drug abusers and novices, including teenagers, soon discovered that chewing an OxyContin tablet or crushing one and then snorting the powder or injecting it with a needle produced a high as powerful as heroin. By 2000, parts of the United States, particularly rural areas, began to see skyrocketing rates of addiction and crime related to use of the drug.”  Although drug companies often can’t predict the consequences of their products, Purdue Pharma had to admit that they deliberately concealed the harmful effects of its drug.

Although the company had to pay $600 million in fines, the profits from the sale of oxycontin was about four times that much.   Purdue Pharma had a lot of money to hire lawyers, and when they were being investigated they hired Rudy Guilliani to try to use his influence to get the DEA to back off.  Guilliani accepted several million dollars for this service.  See story.  Guilliani went to see the local Virginia prosecutor that was going after Purdue Pharma, and the local prosecutor ultimately agreed that the three executives would not have to do jail time.  See story.  So while I am not real happy that drug addled nitwits are robbing our state’s pharmacies, I am trouble by the unfairness that the executives who created this mess got off without any jail time.  The judge who handled the sentencing of the executives felt the same way.  He explained that the the lack of jail time for the executives was the “most difficult” part of accepting the plea deal.  Protestors outside the court house were angry that the executives were getting off so lightly.  Many protesters had lost loved ones to accidental overdoses of the drug.

This poster was held by a woman protesting the light sentences for the executives. Her 17-year-old daughter died of an overdose of just one pill of this supposedly "safer" pill.

You can see why the family members of people hurt by oxycontin would be upset by the court system.

What responsibility does Purdue Pharma have as to all the oxycontin phamarcy robberies in this State?  Not much apparently.  According to the Spokesman-Review last week, the company that has made 2.8 billion on this drug was offering just a measly $1,000 reward for the latest robbery.

You really have to wonder about the way drug companies market these prescriptions.   The latest problem is the practice of drug companies writing articles about how great their latest drugs are and then finding a doctor to submit the article to a publication.  The article then makes no mention of the fact that the article was not really written by the particular physician.  With oxycontin, Purdue Pharma would market oxycontin by getting in good with doctors with free trips.  Purdue Pharma would pay the transportation and hotel costs for hundreds of doctors to attend weekend seminars in spots like Florida to discuss pain management.  Doctors were then recruited and paid fees to speak to other doctors at some of the 7,000 ”pain management” seminars that Purdue sponsored around the country.  The seminars  taught the importance of aggressively treating pain with the powerful drugs made by Purdue Pharma.

I find it highly annoying that all the discussion of these oxycontin robberies ignores the fact of how we got into this oxycontin disaster to begin with.  As seen in the wanted poster above, going after a drug addict in a hat and hooded sweatshirt is pretty easy.  They look guilty, and you can score political points by being “tough on crime”.    All the police detectives, prosecutors, politicians, defense lawyers, legislators, probation officers and judges of Washington State coping with this problem are really just janitors cleaning up a mess left by powerful forces of money and power and influence Back East.

Kino Michael Gomez is accused of first degree murder for shooting Tom Pfaeffle at a motel in Twisp, Washington on July 17th, 2009.   Judging by news reports the prosecutor and the defense lawyer agree on the following facts:   Gomez checked into room 7 of the motel.  Pfaeffle checked into room 8.  The two men did not know each other.   Later in the evening at 10 p.m., Pfaeffle mistakenly tried to entered room 7.  In response, Gomez shot Pfaeffle who died shortly thereafter.  The major disputed fact is how far did Pfaeffle go in trying to enter Gomez’s motel room.  Was the door open or shut?

According to the July 22nd, 2009 Omak-Chronicle, the  Prosecutor stated “the evidence shows the door was not open.”  The Seattle Times in a July 21st story quoted police as stating that Pfaeffle was shot “when he apparently put his room key into the wrong door Friday night. He was hit in the chest by a bullet fired through the closed door.”  In another story Twisp Police Chief Rick Balam was quoted as saying “There’s absolutely no question the door was closed when the shots were fired.”

Most people I talked to seemed to form a strong opinion as to the guilt of Kino Michael Gomez based on reading these law enforcement statements in the media.  Most people asked: “What kind of maniac would shoot through a closed door, just because someone unsuccessfully jiggled the door handle?”   The people posting comments on the internet also formed an opinion as to Gomez’s guilt based on the comments of the police that the suspect shot through a closed door.

“Assuming the man that fired the shots had a ‘legal’ right to own a gun, he has no excuse to fire random shots through a hotel door… at ANYONE.”  See Link.

“Why did he fire THRU the door-after he barred the door. It isnt like someone broke in- Who the fck fires thru a door because they think they are being robbed?”  See Link.

“A man paranoid enough to shoot through a closed door of a motel was probably up to no good to begin with.”  See Link.

“I realize people make mistakes, but this is inexcuseable. YOU DON’T FIRE A GUN THROUGH A CLOSED DOOR.”   See Link.

So does the evidence really show that Kino Michael Gomez shot through a closed door?   The Methow Valley News sent a reporter to the scene to to take photographs of the door which are posted online here and here.

Hmmmmmm.  It is not exactly as Twisp Police Chief Rick Balam described it.  He after all stated “There’s absolutely no question the door was closed when the shots were fired.”   Based on my experience prosecuting and defending homicide cases, the photographic evidence is more consistent with Kino Michael Gomez’s statement to the police.   Kino Michael Gomez was interviewed by Officer Ty Sheehan of the Twisp Police Department, and Gomez stated that “he had been concerned about the lack of a deadbolt on the door and had wedged a chair against the doorknob.”   Gomez told the police ” he awoke to the sound of someone trying to get into the room and had seen the door open and ‘a full silhouette’ of someone in his room.”  See story in Methow Valley News.   Gomez stated that he responded “like it was automatic,” shooting toward the door.

After I looked at the photographs, it appeared that the bullet hit the door frame, and based on the angle of the bullet, the door must have been half way open.

The good reporting of the Methow Valley News has raised a lot of questions in this case.  Good for them for doing their own reporting rather than simply repeating what the police said. The defense attorney Michael Haas is doing a thorough job of raising the right questions too, and  apparently sent his own investigators out to the scene of the shooting.  They had to act quickly because the motel was attempting to repair everything a.s.a.p.

Under Washington law, a person can use deadly force in self-defense if they believe they were in reasonable fear.   If a person claims that they used force against a perceived intruder, it would certainly be relevant how far the perceived intrusion went.  Dave Workman, author of Washington State Gun Rights and Responsibilities, wrote an opinion piece on this case just after the incident.  See Link.  Like most of us at first, he understood the incident to involve shooting through a door that was closed.  I wonder if he has further insights based on Mr. Gomez’s version of events and the photographs and other recent developments.

It will be interesting to see how this case unfolds in the weeks to come.  I don’t envy the defense lawyer or the prosecutor in this case.  I have never met the defense lawyer on this case, but I know the prosecutor a little.   The best prosecutors on cases like this are tough, but also keep an open mind as to new developing facts that could change their mind.   I believes that describes this prosecutor.

What does every one else think about this case?  Can Kino Michael Gomez get a fair trial in Okanogan County?  Has anyone else noticed the racial overtones about some of the internet news comments out there?   I discussed in a blog post last month about friends and family of Amanda Knox who posted a internet site to support the defense of Amanda.  Should Kino Michael Gomez’s family also consider a similar campaign?   I also wrote in a blog post last month about the bearing of arms in public places.  What are the societal costs of an armed populace?

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?

How young is too young to run for election?  This subject came up in an earlier blog post that discussed potential sheriff candidates.    A reader shared that he thought that one local Sheriff’s deputy, were he to run for sheriff, would be way too young.  See comment.  That surprised me a little bit.  I always assumed that a person in their mid-thirties was in pretty solid territory age-wise to run for a job for a local elected official.  I may be a little biased because when I was elected prosecuting attorney in 1998, I was only 28 years old at the time.   I have to admit, I felt a little iffy about stepping into the political ring at that age.  At the time, I was aware that our state representative, Cathy McMorris, was only 29.   Cathy McMorris was elected to the State Legislature when she was only 24.   Cathy McMorris (now known as Cathy McMorris Rodgers) went on to become the State legislature’s minority leader, and later was elected to US congress at age 35.

The subject of  a suitable age of an elected official has arisen recently in the political campaign for prosecuting attorney in Grant County.   Earlier this year a deputy prosecutor by the name of Angus Lee was appointed to step in to replace John Knodell who was elected judge.   Angus Lee was appointed by the commissioners.   Angus Lee is 32 years old, and is a 2004 graduate of law school.  When I was elected prosecuting attorney at 28, the issue that was the hardest for me was managing people and running an office.   I think the trial work can pretty much be handled by any prosecutor with a few years under his or her belt.   In Grant County, Angus Lee has a pretty big office to run, and lately his office has had a lot of turnover, as other prosecutors get used to their new boss.    I don’t know Angus Lee too well because I have only had one case with him.

I read in the Spokane-Review last week that an 18 year old high school senior by the name of Greg Ridgley was running for city council in Spokane.  Now an 18 year old on city council would be pretty interesting, don’t you think?   Greg Ridgley’s campaign seems pretty low key right now.   When I looked him up online, he didn’t have a web page up.    I had court in Spokane this morning and I looked all over for his campaign signs but I didn’t see any.  Ridgley has a facebook page that discussed his campaign and his recent trip to Australia as a youth ambassador.  My suggestion to him would be to promote his campaign as much as possible on the internet.  The use of the internet in politics is a very hot topic in the media.  See for example the debate of Jennifer Gregerson’s use of Twitter.  See article.  It seems that if Greg Ridgley found a way to use the internet for his campaign in a novel way, he would garner more attention.  Greg Ridgley is going to be a senior at Gonzaga Prep and is running as a Republican.  The funniest thing about Greg Ridgley’s campaign is the interesting comments that people have made about his campaign on the internet.   None of the comments have been disparaging.  One Spokane resident posted a comment that Greg Ridgley “has to have more sense then the rest of them and he has not had much of a chance to be corrupted.” Another wrote of Ridgley “Pure honesty and interest to help the community. No good old boys to owe. Fresh. Clean. Passionate. Way to go. The rest of his peers who can vote will be doing it”.  See comments.

What would people think about an 18 year old senior running for city council in Republic, or Colville or Okanogan?  It seems like people would be more receptive to an 18 year old on a city council, rather than in a position of mayor where more power is placed in a single position.   An 18 year old running for sheriff would seem to pose a problem.   Under State law, a person has to be 21 to carry a hand gun.

As for me, I would not have a problem voting for a person in their 30’s for sheriff.  What do you all think?

It must have been a slow news week for West-side news reporters covering city council meetings in the Seattle area.  The talk of the town was Jennifer Gregerson, a city council member for Mukilteo who posted on Twitter the following message:

City staff and some council now Debriefing and relaxing at ivars for late night happy hour. Time for dinner, I think!

The council member posted this message on the way to Ivar’s restaurant, and it raised eye brows because it turned out that a total of four council members showed up and thus the informal group constituted a quorom of the council. The Open Public Meetings Act makes it illegal to discuss business unless a meeting of a quorum is open to the public.   When I read the councilwoman’s Twitter post, it was pretty clear to me that no official business was discussed, and that going to a to a “late night happy hour” for “debriefing” was a euphemism for getting a little drunk with friends.  But this ambiguous term “debriefing” led the Snohomish County HeraldNet to lead with the headline: “’Tweets’ bring possibly illegal meeting to light.”  Huh?  Don’t people realize that city council members might enjoy talking about something else besides council business?  It turned out another council member, Kevin Stolz saw the get together, and rather than join the group, he called the media.   An Assistant Attorney General who was consulted for the story explained that it is not illegal for public officials to get together as long as they do not discuss official business.  A city lawyer was present at Ivars that evening and confirmed that no business was discussed.  The council member who complained also commented: “And the Twitter thing? That just should not have happened.”   But why would it be wrong for a council member to post on Twitter what is going on with city business?    It turned out Councilwoman Gregerson posted 28 updates on Twitter during the meeting earlier that evening.   Twitter is a transparent medium and any member of the public can follow what is going on with their government.   Contrast this with private emails that might be circulated among council members.   Even the HerlandNet (in a follow-up article) stated: “We applaud Gregerson for ‘tweeting’ from the hearing — it’s a step forward in government transparency when an official shares her thoughts and observations with the public in real time.”

For those not familiar with Twitter, it is a “micro-blogging” service that allows users to posts short updates of about 30 words at a time.   Twitter is a medium that has a reputation for being somewhat trivial, and it is true that some celebrities use it to post the most inane details of their lives.   But Twitter has the capability to transform government.   It is through Twitter and other social media that the world has had a steady stream of information on the Iranian election protests after all the journalists had been deported or jailed.  See “Twitter Tells Tale of Iranian Election“.   Here at home, wouldn’t Twitter posts during a meeting alert the public when a certain topic came up on the agenda?   How many times have you sat through a meeting for hours waiting for a certain subject to come up?  The meeting that was occurring on the night in question in Mukilteo was not even a city council meeting, it was a meeting of the Boundary Review Board.  Zzzzzzzzzz………  Who would want to sit through three hours of that?  Do we really think the council members would want to talk about that meeting in their spare time?

Despite the HeraldNet’s headline about “possibly illegal meetings”, the online readers seemed to recognize that the matter was largely overblow.   Many readers commented that it was a tempest in a teapot.   It is apparent that councilman Kevin Stolz had an ax to grind, and was using the media to go after his rivals on the city council.

     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.

Let’s face it, I live in a pretty small town.   To have Justice Korsmo drive up 3 hours from the court of appeals to judge our Mock Trial Competition is a pretty big deal.    I wondered how it would be to have an appellate judge sitting in a trial court, but Kevin Korsmo is a natural.   He is also pretty good working with kids, and the teachers agreed.

Justice Korsmo accepts his certificate of appreciation

Justice Korsmo presided over the battle between the senior classes of Republic High School and Curlew High School.   Each side had the chance to present the prosecution case, and the defense case in a hypothetical case of People v. Terry Bell.   Terry Bell was charged with arson and incitement, but was acquitted each time by a jury of grade schoolers.  I coached the Republic High School team, and our elected prosecutor Mike Sandona coached the Curlew High School team.

Mike Sandona works the crowd. These high school seniors will be eligible voters when he faces re-election next year.

Coaching a mock trial team is just about the only volunteer activity I do, and I have done it since 1997.    In a good year you can get the kids as competitively charged as they would be in a basketball game against their rival.   This year, both schools had their fair share of over-achievers, and I am always impressed at the number of local graduates who go off to top schools, many with scholarships.   But in addition sometimes the competition makes stars of kids who are not academically inclined.   In the end, what often prevails is a combative spirit.   I usually end up getting to know some of these mock trial champs pretty well.   Every so often there will be a kid who already wants to be a lawyer.   Occasionally there will be a kid of such precocity, that I will already imagine them kicking my butt in court in seven short years.

(Note: I will be posting some pictures of a couple of the student lawyers as soon as I can get their permission.)

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