Posts Tagged ‘okanogan’

Jurors on Okanogan Wolf Killing & Wolves in Washington State

For the last three years, there has been a lot of news coverage about the pack of wolves that moved from British Columbia down to Okanogan County, Washington.  Poaching has begun and many cases will be coming to court, testing the views of jurors on such subjects.  Let’s discuss the background, and th the problems courts will face.

Image of Okanogan Wolves

A photo of the wolves of Okanogan County caught on a motion sensing camera.

Wolves in Washington State

There have always been sporadic sightings of individual wolves in North Central Washington, but in the summer of 2008, the Washington State Department of Fish and Wildlife announced that a pack of wolves had made their home in the Methow Valley. See article. Although Washingtonians as a whole may have been pretty excited, most of the people of Okanogan County were hesitant to say the least.  Many ranchers wondered about the potential losses to their livestock, and hunters worried about fewer deer and elk.  Now, two years later it has been clear that not everyone has welcomed the wolf pack, and there is increasing evidence that certain people are trying to kill the pack off.  There is a growing sense of concern across the state that this pack might be lost.

Okanogan Wolf Killing

Last week I had court in Okanogan County, where I often go in my practice as a criminal defense lawyer.  There were filmmakers in court from the BBC doing a documentary about the wolfs.  Apparently, on the docket that day there was a defendant accused of shooting a wolf.  People are watching and waiting to see what comes of the investigation of Tom White and his son Bill White.  The Washington State Fish & Wildlife Agents executed a search warrant at the Whites’ home after they were alerted to a suspicious Fed Ex package that contained a wolf pelt.  The FedEx employee called authorities after noticing that some blood was leaking through the packaging.   According to news reports, the agents confronted Tom White about the shooting of wolves and he indicated that he shot the wolf because it was caught in a barbed wire fence. The agents claim that during the raid on White’s home they found a photo of Tom White posing with the wolf, and the photo showed a wolf with damage done to its paw consistent with a trap.

Rewards for Tips on Wolf Shootings

More recently, State officials and conservationists have become worried about the prospects of the survival of the pack.  A female wolf was being tracked with a radio collar last year until the signal was lost.  Because the radio signal stopped so abruptly, foul play was suspected.  To help deter poaching, Mitch Friedman, the executive director of Conservation Northwest announced a reward of $7500 for information leading to the conviction of wolf poachers.  In an online story by K.C. Mehaffey of the Wenatchee-World, Friedman explained that he is concerned about the lack of prosecution: “I don’t know whether it is a matter of prioritization given in prosecutors’ offices, or whether these cases are inherently more difficult to prosecute because they happen in the woods.” Likewise, Mike Cenci, of the Department of Fish and Wildlife explained: “Some counties are very aggressive in pursuing natural resource law violators, and others, not so much.” Cenci explained that he has to continually “educate prosecutors’ offices with respect to the impacts that environmental or natural resource crime can have.”

Washington State Laws on Wolf Hunting

In my experience, prosecutors often struggle with the intricacies of our State’s fish and wildlife code.  The regulations and statutes on the subject are so complicated that it is often hard to even figure out the best way that the crime should be charged. Additionally, many of these poaching cases occur in remote areas of our national forests, and this often means that the venue for the trial will be in rural counties such as Okanogan County, Ferry County, Stevens County etc. Image of Attorney In such locales the sensibilities of the jurors can be startlingly different than in areas like King County.  Let’s face it, the way we view animals is largely the result of our culture and our upbringing.  In rural locations, people usually view bears, mountain lions, and wolves as a nuisance at best, and often times as an outright danger.  The jurors often times are the same people who have lost livestock or pets to carnivores.   Additionally, while attacks on humans by carnivores seems like remote concerns, these attacks figure centrally on the minds of local jurors.  Parents know there are documented attacks on children recently in North Central Washington.  In 2003, a Canadian boy was attacked while hiking in Stevens County.  See here.  In 1999, a cougar nearly killed a 4-year-old boy in Barstow, Washington, in Ferry County.  The child required 200 stitches to close head and neck wounds.  See here.  So, in these counties jurors just don’t seem to care really if someone is shooting bears, or cougars, or wolves.

Wolf Killing Trials

Let’s remember something about jury selections – it is largely a numbers game.  A jury for a felony poaching case in the State of Washington is composed of 12 people.   Let’s talk about how those 12 are selected.   On the morning of trial, the prosecutor and defense lawyer show up and are presented with a list of about 50 or 60 prospective jurors.   The lawyers are then free to ask the prospective jurors any questions they like.  A lawyer can quickly figure out who belongs to hunting groups, conservationist groups, environmental groups, the cattlemen association.  A lawyer can likewise ask prospective jurors who has lost pets or livestock to carnivores, or who has close friends or neighbors who have lost pets or livestock.  The standard jury questionnaire also provides information on how long a juror has lived in the county, thus providing crucial information on the person’s upbringing.   Under the law, for a jury of 12, each lawyer is given 6 peremptory strikes, meaning he or she can get rid of any juror for any reason.  So if a prospective juror is a self-described animal lover, or a conservationists, or never had so much as a fishing license, or just moved to the area from a major city, that juror is simply sent home by the defense.  A defense attorney can send all such jurors home with peremptory challenges, because in a rural jury pool of 40 people, no more than 6 such jurors exist.  It is important to note that in King County, the opposite is true, and the prosecutors send the hunters and sportspersons of  rural King County home, leaving the defendant to be judged by suburbanites and Seattle residents.

The difficulties of prosecutions in these cases are exacerbated by frequent investigations by Fish and Wildlife.  I was a prosecutor in Ferry County for about 7 years, and have worked as defense lawyer for 8 years since.  I have prosecuted or defended numerous cases involving bears and cougars, and also the trafficking of hides, or parts of an animal such as a bear gall.  Sometimes as a prosecutor I was frustrated by incomplete investigations, and often times these Fish and Wildlife agents seem to have a tin ear when it comes to how their investigations will look to jurors.  There seems to be a lot of overreaching on the part of the investigators, and jurors often will pick up on that.  Prosecutions for these sort of poaching cases is often times extremely time consuming and complex, and the laws are quite challenging even for the judges and the prosecutors to figure out.  For example, let’s look at the case of State v. Yon out of Spokane in 2008.  Fish and Wildlife agents conducted an elaborate sting operation against Jason Yon for allegedly buying bear gall bladders.  Apparently, the agents believed that the buying of bear gall bladders was a felony the whole time, and expended a great amount of resources.  Jason Yon’s attorney Richard Lee thought otherwise, and tried to “educate” the F&W on the law.  The laws on this crime were so complicated that the Court of Appeals finally had to step in, and the court resolved this issue in Yon’s favor.

Due to the difficulties in state court prosecutions for the killing of wolves in Washington State, it may be that the Fish & Wildlife department decides to request more prosecutions in federal court.

For other blog posts about similar subjects see my earlier posts on the laws of elk hunting, cougars in Discovery park, and cougars in Magnolia.

What do you think about the Okanogan wolf killing?  Under what circumstances is it justified for a resident to shoot a wolf in defense of his or her property?  Are small-town prosecutors trying their best to curtail poaching, or are they part of the problem?

Elmer City Admonished for Land Deal

In The Star – Online there was an article about how the State Auditor’s office issued a “finding” that the town of Elmer City improperly “gifted” real estate to its town clerk Renee Tillman.  The small parcel of land was adjacent to property already owned by Tillman.  Okanogan County assesses the land at $5,500.00, but the town of Elmer City sold it to Renee Tillman for only two hundred dollars.  The city did not have it appraised first and did not put it out for public bid. Audit Finding A copy of the report by the State Auditor is online here.  The State Auditor’s only comment is “we recommend the town refrain from making gifts of public funds.”  

Under the Washington State Constitution Article VIII, 7, it is provided that: No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.

In deciding whether a public expenditure is a gift under the constitution, the state supreme court focuses on two factors: “consideration” and “donative intent.”  See the 1997 case of King County v. Taxpayers of King County.

The issue of “consideration” is whether the government received adequate compensation for the property.  The town of Elmer City sought to justify its actions by explaining: “The Town of Elmer City would no longer have to maintain the property; the property was of no present or foreseeable benefit to the town. The property then would be placed on the tax rolls.”   Under this rationale, it would make sense for cities to get rid of a lot of property wouldn’t it?  The point is that Elmer City owed it to the taxpayer to get as much as they could for that parcel of land.  It is hard to imagine that all they could get for the land would be $200.

The issue of “donative intent” references whether the intent of the government was to make a gift or do a favor, or if the city simply showed bad judgment.  Unfortunately it simply looks bad when a city makes a deal with its own employee and does not allow the public to even make a bid.

I think a lot of attorneys who practice municipal law would recommend that the parcel of land be returned to the city, and then be resold at public auction.  If no one bids more than $200 than the clerk who purchased the land is in no worse position than she would be already.  However, if the land is really worth more, than the taxpayer really does deserve full compensation.  In times of dire budgetary conditions, the public does not like to read about such deals.  And the public wants to make sure such deals do not occur in the future.

The State Auditor’s report does not mention the acreage of this parcel that Elmer City sold to Renee Tillman for $200.  A person can look up more info on this parcel online here.  This link is to the public records that are online courtesy of Okanogan County’s online land records.  The land in question had the Parcel ID number of 0700020701.  From the link to the county records, a person can see a map of the parcel in question.  Can this be right?  This map in question shows a pretty sizable parcel of land right in town.  Did Elmer City really sell this for just $200?

Okanogan County Hotel Shooting: Did Kino Michael Gomez Really Shoot Through a Closed Door?

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

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 has 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?

What Washington public works projects will be still standing in AD 4000?

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.

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

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

But what Washington public works projects will last as long as the Pont du Gard?

This question 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 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.

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

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

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

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

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

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