Posts Tagged ‘okanogan county’
Remember last summer when scientists released a new study claiming to link marijuana use with schizophrenia? See e.g. Reuters article. Let’s face it, it is the government that has the split personality disorder when it comes to marijuana laws. Can someone explain to me why there is a mandatory one day in jail for misdemeanor possession of marijuana in an amount under 40 grams (RCW 69.50.425), but a judge is not obligated to impose any jail for a person convicted of the felony of possession over 40 grams? See page III-279 of State Sentencing Guidelines Manual. How about the huge disparities in the way in which marijuana laws are enforced from county to county and city to city? For example the Seattle city attorney announced this year that he was not going to prosecute any misdemeanor marijuana cases period. See source. But in most rural counties of eastern Washington, marijuana enforcement is still in full effect. In metropolitan areas of Washington, large medical marijuana dispensaries are tolerated, but in rural eastern Washington things are different. Small-time medical marijuana grows are routinely raided in Okanogan, Ferry, Stevens, and Pend Oreille counties. A new medical marijuana clinic in Okanogan County will soon be held (see story) – I guess we will see how that goes over.
As a criminal defense lawyer it is becoming harder and harder to explain to clients that there is any sense to the system. Under federal law, even a first-time charge of simple possession of marijuana is enough disqualify a young person from eligibility for student loans. In Washington, proposed Initiative 1068 would legalize possession of small quantities of marijuana. This initiative would be on the ballot next year. But would such an initiative really pass in Washington State if a similar initiative just failed in California? I think people are getting discouraged about any change in the marijuana laws here in Washington State.
What do you think about the disparities in enforcement? Do you think the initiative 1068 will pass next year?
I always like to hear what someone has to say when they are leaving a job. Leaving a job definitely allows people to be pretty candid about their experience. When I stepped down from my position as the GMA lawyer for Ferry County, I took the opportunity to criticize the groups Riparian Owners of Ferry County and the Stevens County Farm Bureau for their frivolous suits against Ferry County. See post. Well this week was Michael Haas’ turn to tell us what he thinks. The Omak-Chronicle reporter Al Camp interviewed Haas about his departure and his planned move back to Port Townsend. At first the article explained that he was leaving for family reasons, and then Haas went on to lavish compliments on many of the court house staff. He is quoted as saying: “Overall, your judicial system works well. Your judges are thoughtful, respectful and take their jobs seriously… The same is true for your prosecutor’s office and the county commissioners.” Just when I was getting ready to think this was a fluff piece that Al Camp wrote, I saw what Haas had to say about law enforcement in Okanogan County. “…[T]he overall quality of investigations in Okanogan County is abysmal.” Al Camp explains that Haas said that part of the problem is all the small police departments, though he said the sheriff’s office left much to be desired as well. Haas questioned the decision of every municipality to set up their own police force, and added that the police could benefit by better and regular training.
So what sort of letters to the editor is this article going to provoke? I guess we will see when the new paper comes out tomorrow. Though Haas would certainly know better than me about Okanogan, I am not sure Okanogan police investigations are really that much worse than other rural areas. In all rural areas, it seems like unproductive officers are allowed to stay on working because it is too hard to get rid of them. Then you have some inexperienced officers who are totally gung-ho, but really don’t know what they are doing and don’t have the patience to listen and learn from the prosecutors. A lot of the really good cops end up getting lured away by bigger departments that can afford to pay more. When I used to work as a prosecutor, the police definitely used to drive me crazy. Some of the police I worked with often turned in lackluster work, but would expect superhuman results from me as a prosecutor.
Although I didn’t get to know him real well, I always liked Michael Haas. He knew a lot of about the law, kept up-to-date with new changes in the law, and was always pretty collegial. I blogged about case he was involved in when he first came to town. See post.
What do you think? Is Haas right that there is room for improvement in Okanogan County law enforcement? Is he simply saying what others are too timid to mention? In the article Haas mentions that more funding should be spent on drug recovery programs than drug enforcement? What do you think of that?
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.
The expense of high quality video surveillance equipment has plummeted, and many businesses are installing sophisticated systems into their businesses. This is posing a challenge to robbery and burglary suspects. It seems like you cannot watch the news or go online without seeing photos or video footage of these guys caught in the act.
But burglary and robbery suspects are finding new ways to cover their faces when they are on the job. I saw this photo to the left in the Olympian online yesterday that the police released with the hope of identifying him. For the latest Eastern Washington crime/court news, I visit the blog Sirens & Gavels. The stories in this blog by Meghann Cuniff usually include surveillance photos. I read the Spokesman-Review in print, but I check their online site for the audio/video content.
I follow all the local oxycontin robberies, and have blogged about this in the past, see earlier post. The pattern that many of these robbers fit, is to try to cover as much of their face as possible without it seeming too suspicious. Obviously if a person walks into a pharmacy or business with a bandanna over their face then that will alert everyone as to their intentions. In my experience as a criminal defense attorney, some suspects keep these robberies as low-key as possible, simply presenting their demand to the counter in the form of a note. In Meghann Cuniff’s blog today, she posted surveillance footage of a failed armed robbery attempt by a man who allegedly walked into a pharmacy in Hayden with a gun to attempt to get oxycontin. The suspect left empty-handed because the pharmacy avoids keeping it in stock due to the rash of such robberies. Notice the suspect’s mannerisms as he walks into the store. He clearly is aware of the presence of the security camera, and would have likely visited the store in advance to observe the placement. The suspect casually covers his face with his hand, as if to suppress a cough, but drops his hand down after he passes the camera. His head is covered with a hood and hat.
Such surveillance videos pose a challenge to the investigator and attorneys handling such cases. The equipment is difficult to operate, and often times a store owner is not aware of how to duplicate the recording for the police. In metropolitan areas, specialized robbery or major crimes detectives are well practiced at handling such equipment, but in our more rural counties deputy sheriffs often struggle. As a defense attorney, I have dealt with armed robbery allegations cases where the video was replayed by the police to see, but was never copied for court or made available to the jury. Often times, when a copy is made the file is “compressed” reducing the quality of the video footage. “Compression” is the process by which a larger data file is reduced in size to more easily fit on a disk or flash drive. Video quality varies from camera to camera, but unlike on TV, it is rare that the video can be significantly enhanced. When I defended an armed robbery allegation in Okanogan County, I worked with an expert who used Photoflair to try to enhance the image, but it was not very successful. Photoflair has been used in a lot of high profile cases, and can be helpful, but it is not like on CSI. In the future, the police will not necessarily need to post the photo of a robbery suspect to solve the crime. Face recognition software already exists and came on my MacBook when I bought it. When I add photographs from my camera to my computer, the program recognizes the subjects of the photos and tags the photos accordingly. It is possible that someday the police could match a photo of a robbery suspect with other photographs the suspect has posted on social networking sites.
Having defended such cases and worked with oxycontin addicts, I grow frustrated with the manufacturer of oxycontin, Purdue Pharma. As I wrote in an earlier post, pharmaceutical company Purdue-Pharma 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 the executives never went to jail. The company encouraged doctors to prescribe it not just to dying cancer patients, but to people with even moderate pain. Many addicts were thus created. 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.” Less addictive then vicodin (i.e. hydrocodone)? Now that really makes me chuckle. Remember the above video of the robbery suspect who tried to rob the pharmacy but they did not stock oxycontin? He left empty handed. He didn’t ask for percocet or vicodin as an alternative. He knows there is no substitute or no pharmacy drug like oxycontin. It’s only equivalent is heroin.
The DEA has cut back on prescriptions for oxycontin, but you really can’t put the genie back in the bottle. Addicts will rob pharmacies rather then suffer the agony of withdrawal. Further steps are needed to limit oxycontin’s use.
Earlier this week many local Native-American tribes protested the Federal government policies restricting their rights to cross the Canadian border. The problem had been brewing for some time. See High Country News.
When I first moved to Ferry County in 1996, it seemed as if this was the county that was poised to enter big legal battles with the Colville Confederated Tribes. The two governments were set to square off over who had primary jurisdiction to regulate land owned by non-Tribal members on the Reservation. The subject dominated local politics and was the subject of frequent letters to the editor. The Tribes were rumored to have a “million dollar war chest” to fund any litigation with the county. The county commissioners appointed me county attorney in April 1998, and I urged caution on the part of the county. When you are looking for a good “test case” to bring to court, you don’t necessarily want to join the side of the first non-Tribal landowner to raise his hand. In the end, a legal battle was avoided, and in my opinion Ferry County and the Tribes have worked together fairly well for the last ten years.
So I am glad to see that it was the Federal government this time that has drawn the ire of the Colville Tribes and has been accused of violating treaty rights. This has come to the media’s attention rather recently as Tribal members have become fed up with being harassed by U.S. Border officials as they travel to and from their ancestral homelands across the border in British Columbia. As someone who lives near the border myself, I have often found it frustrating to deal with border officials when I travel to Canada. In addition, as an attorney I often represent defendants who get caught up in border issues. The difference, of course, is that local Tribal members have special treaty rights to cross the border. Under the Jay Treaty of 1794, Native-Americans were granted the right to engage in trade and travel between the United States and Canada, which was then British Territory. Until 9/11 no one seemed to question the rights of Tribal members to travel to and from Canada with just their tribal ID cards. But now, there is pressure on the Tribal members to give up the ID cards of their own government and to use passports or state enhanced drivers licenses. Local tribes are now considering issuing their own passports.
This controversy boiled over on June 1st as local Native Americans and Tribal members from Canada staged a protest in the border town of Night Hawk. The protest was peaceful, but the Omak-Chronicle reported that it involved the removal of a border fence. The Border Patrol did not try to intervene as the Tribal members crossed the border and back again. I have to hand it to these protesters. It took courage to take that step. I would have half expected the Feds to arrest some of them. But I guess then it would have become a national story, rather than just a regional story. I hope the Tribes pursue their rights in this respect. Often it is the local governments or the States that are accused of violating treaty rights, the Tribes are right to stand up to the Federal government too. The Tribes in the U.S. sometimes seem to be the favorite underdog of the federal judiciary. I can easily see the Ninth Circuit Court of Appeals approving the rights of Tribal members to set up their own border check point. However, unlike 10 years ago, when the Colville Confederated Tribes had money set aside for litigation, the Tribes now are suffering a budget crisis. This border issue is something that I will try to follow closely.
What do you think? What will come of this issue? Is it fair to ask Native Americans to use State ID cards when they enjoy rights to sovereignty?
Possible Challenge to Jury Venire for Native-American Defendants in Washington Counties Overlapping Reservations
I have run into an interesting issue that I raised in court, only to have the matter settle. If anyone encounters this problem and seeks assistance, I would not mind the pro bono work. Due to their locations, an Okanogan or Ferry County attorney could challenge the current method of selecting juries.
Under Washington Law, jurors must be selected evenly from the populations as a whole. A problem arises when State Courts conduct jury trials of Indian Defendants. The current method of drawing jurors does not reach Indian residents living on trust or allotted land. Such summonses are a form of state court civil process. Under the case of North Sea Products v. Clipper Seafood, such state civil matters are unenforceable on Indian Reservations. 92 Wn. 2d 236, 595 P.2d 939 (1979) (invalidating a state-court garnishment). Additionally, the punishments under RCW 2.36.170 for failing to report for jury duty do not apply to Indians on trust or allotted lands. RCW 37.12.010 provides that the “…state of Washington hereby obligates and binds itself to assume criminal . . . jurisdiction over Indians and Indian territory,… but such assumption of jurisdiction shall not apply to Indians when on their trust lands or allotted lands within an established Indian reservation…” Indians are 16.5% of the Okanogan county population according to the U.S. census. In Ferry County, the figure is 20%. The exclusion of this body invalidates the process. Who comes to serve, and who does not come to serve, must be random. One case on point is Brady v. Fibreboard Corp., 71 Wn. App. 280, 857 P.2d 1094 (1993), review denied, 123 Wn.2d 1018, 871 P.2d 599 (1994). In Brady, the court of appeals reversed a jury verdict because of procedural irregularities. When several jurors on the list did not appear, plaintiff’s counsel asked why, and “the judge responded that they had never been called in.” Id. at 282. Other judges had excused the jurors, and the court of appeals reversed the verdict and explained: “The procedures used here abridge the statutory mandate of random selection. It is undisputed that the initial panel of 90 was randomly selected. However, the randomness of the panel was destroyed when 14 of the 90 were eliminated by the process employed here.” Id. at 283. Like the 14 missing jurors in Brady, many native jurors will have “never been called in.” Aside from the constitutional precepts violated, this is a violation of statute mandate reversal. “When statutory jury selection procedures are materially violated, the claimant need not show actual prejudice; rather, prejudice is presumed.” Id. at 283. One case I looked at is Taylor v. Louisiana, 419 U.S. 522 (1975). In that case, Louisiana’s method of drawing jurors to court was found to be unconstitutional. Louisiana summoned men to appear, but made women’s attendance optional or voluntary. The court in Taylor v. Louisiana visited earlier cases and explained:
A unanimous Court stated in Smith v. Texas, 311 U.S. 128, 130 (1940), that “[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” To exclude racial groups from jury service was said to be “at war with our basic concepts of a democratic society and a representative government.”
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S., at 155 -156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.
The court struck down a murder conviction due to the failure to compulsorily include women in jury pools. The best solution would be to ask our Federal Courts or the Colville Tribal Court to issue jury summonses to the Tribal member for the State. This procedure would render the summonses valid. Unlike a mailed state-court jury summons, a summons of a Federal Court of Tribal Court will compel attendance. It is, of course, a crime to ignore a court order or summons under Federal and Tribal law. The Federal Court clearly can enforce, or re-issue State Court process on reservations. As to the Colville Tribal Courts, their cooperation with State Court process is largely discretionary under Section 1-1-102 of their code. The Ferry County Superior Court Judge could order the Ferry County Clerk to send all on-reservation summonses to the Colville Tribal Court for compulsory lawful services under tribal law.