Should the Government Seize the Inventories of Medical Supply Speculators?

Newsreaders today learned of the problem of Matt Colvin of Tennessee. When hand sanitizer started to run out on March 1st, he drove across Tennessee and Alabama clearing out any remaining last bottles from store shelves. His plan was to sell it for a profit, and did so on Amazon and eBay until they shut him down. Now he has over 17,000 bottles he can’t get rid of. My question is why doesn’t the government just commandeer or requisition his supply and redistribute it?

It is common when the government declares a State of Emergency for a clause to be added granting the civilian authority the power to commandeer or requisition private property. See, for example, the recent declaration of emergency that the governor of California signed. That declaration provided: “The California Health and Human Services Agency and the Office of

Emergency Services shall identify, and shall otherwise be prepared to make available-including through the execution of any necessary contracts or other agreements and, if necessary, through the exercise of the State’s power to commandeer property – hotels and other places of temporary residence, medical facilities, and other facilities that are suitable for use as places of temporary residence or medical facilities as necessary for quarantining, isolating, or treating individuals who test positive for COVID-19 or who have had a high-risk exposure and are thought to be in the incubation period.”

Of course, the U.S. Constitution requires that just compensation be paid, but this doesn’t require the $70 per bottle that Matt Colvin was hoping to receive. According to the news article, Mr. Colvin and his brother took a 1,300 mile road trip filling a U-Haul trailer with thousands of bottles of hand sanitizer and antibacterial wipes. Most of the big box stores had already been cleaned out, but the two men found bottles still for sale in “little hole-in-the-wall dollar stores in the backwoods.”  I am sure the stores themselves could have jacked up the price, but they would not want to be accused of price gouging. But is what Mr. Colvin doing any less wrong?

It was pretty clear to everyone on March 1st that the coronavirus posed a serious threat to members of the public, particularly those of us with compromised immune systems or persons of advanced age. I am sure at this point Mr. Colvin regrets his decision. Maybe he could sell the bottles on the street corner at cost. According to the news article, Mr. Colvin is one of dozens of sellers who have horded medical supplies. In addition to hand sanitizer, other medical supplies such as masks are in short supply, yet are being sold online for 10 times the going rate. In the age of COVID 19, more steps should be taken to curtail such abuses. What do you think? Share your comment below.

Marijuana “Green Tongue” – Revisited 10 Years Later

It is hard to believe that it has been almost ten years since I first wrote about the supposed phenomenon of “green tongue” from marijuana smoking. Back in 2010, I explained how the Washington Court of Appeals issued an opinion questioning the notion that marijuana smoking caused “green tongue.” The court indicated that it was “skeptical of the accuracy” of the trooper’s methods of recognizing marijuana use. Since then, I am sorry to say, courts have been a lot slower to shoot down or reject this sort of nonsense.

Take the recent unpublished case of People v. Berrara for example. In that case from last January, the court of appeals unquestioningly accepted the opinion of a justice department “expert” and stated “The effects of marijuana use may include a lack of convergence in the eyes, dilated pupils (but not necessarily), increased pulse rate, bloodshot eyes, and, in some cases, a green tongue.” Or consider the recent decision by a federal court in Green v. Laden. In that case, the court ruled that observation of a “green tongue” together with raised taste buds and the presence of marijuana amounted to probable cause.

So in the last ten years since I wrote that blog post, Washington and Utah are the only states with decisions by an appeals courts which shoots down this green tongue myth. For lawyers that don’t have a court decision backing up common sense on this subject, it is best to use the government’s own publications against them. For example in the 2007 Drug Recognition Expert Instructor Manual, it is suggested “Point out that there are no known studies that confirm marijuana causing a green coating on the tongue.” (Cannabis, Section XXI, Page 6).

The truth is it is quite hard to tell when someone has been smoking marijuana or if they are under the influence of that drug. Nonetheless, the police are tasked with enforcing new marijuana DUI laws that have per se limits for THC / blood content. These new laws have come about as a result of many states decriminalizing the possession of marijuana. Legislatures feel that in order to prevent more impaired drivers, the police need to draw a tough line on marijuana DUI. But since it is difficult to spot these drivers, it often comes down to vague and unscientific criteria like the myth of the green tongue.

Stevens County Prosecutor Begins Adult Diversion Program

Every county prosecutor has his or her way of handling low level drug offenses. By low level offenses, I am referring to, for example, cases where the police find a baggy with a little bit of heroin residue in the back seat of a car, or perhaps a pipe with methamphetamine residue. While the possession of any amount of such drug is a felony, prosecutors typically have alternative programs for such offenses. It appears that the Stevens County Prosecutor is beginning a new diversion program that would include cases such as this. The program is not limited to low level drug offense. It also appears to include drug-related misdemeanors and driving while suspended charges. Based on early versions documentation that I received as part of a public records request, it appears the duration of the program varies from 3 to 12 months.  As part of the program, the prosecutor agrees not to file charges against an individual on the condition that he or she follows one or more of the following rules:

  • Report monthly to the diversion counselor.
  • Attempt to obtain employment.
  • Pay restitution.
  • Pay a diversion fee.
  • Take random UA tests for drugs.
  • Obey all laws.
  • Take mental health or drug abuse classes.

How the program works, is if you complete all the requirements then you will never be charged with the offense and it does not appear on your record. It also appears that the prosecutors could offer diversion after the charge has been officially filed.  This is called a “post-filing” diversion as opposed to “pre-filing” diversion.

A sample copy of a diversion contract is attached here.  For more information, please contact our office.

Title IX Hearings in Washington State – The Right of Cross-Examination

When a student is facing a possible university expulsion for an allegation of rape or sexual assault, that is pretty serious, and a student is entitled to certain procedural rights. I wrote about a decision last year by a Washington court that held that a student was entitled to have an attorney speak on his or her behalf and to assist in asking questions of witnesses. Since then, some universities, such as Washington State University, have avoided having the accuser submit to cross-examination by not having her participate in the preceding at all. That practice was called into doubt this week but a decision from the 6th Circuit entitled Doe v. Baum. The court ruled that a college student in a Title IX hearing is entitled to a live cross-examination of his or her accuser, at least when the determination by the school comes down to a credibility judgment. The court ruled:

Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives. Nor can the fact-finder observe the witness’s demeanor under that questioning.  For that reason, written statements cannot substitute for cross-examination.

This court decision effectively ends the practice of many schools to have the single investigator model, i.e. where an investigator determines credibility with separate interviews of both sides. The new court decision will essentially compel the participation of the accuser in the hearing, which is something schools such as WSU have not done to date. In fact, Washington State University enacted a regulation in the last couple of years which purports to prohibit subpoenaing the accuser or complainant.

For questions about Title IX cases, please reach out to our office.

DNA Expungement in Washington State

When people say “expungement” in the legal system, they are usually talking about getting a criminal conviction removed from a person’s record. But there is another type of “expungement,” and that is forcing law enforcement agencies to remove from their database any DNA they have collected from you. It usually works like this: 1) The police arrest you and you consent to giving them a DNA sample, or  2) The police get a search warrant from a judge to take a DNA sample from you. Under a new law in Washington, if you are found “not guilty” the police can be forced to remove your DNA from their system. The new law provides:

A person may submit an application to the Washington state patrol to have his or her DNA reference sample data expunged from the WSP’s DNA identification system in cases where: (i) The person’s DNA reference sample was collected and entered into the system and (ii) the charges against the person were dismissed with prejudice or the person was found not guilty.

The law also refers to the authority of a court to order “the destruction of DNA reference samples contributed by a defendant who was charged and acquitted.”  So last month, when I represented a man who was found not guilty by a jury of his peers, I filed a motion with the court asking for the court to order the WSP and the EWU police department to destroy his DNA samples.  A copy of the motion (with the names redacted) can be found here.  Yesterday, I found out the motion was granted and I will next serve the police agencies with a copy of the court’s order.

The right of DNA expungement is important as an increasing number of police agencies across the country move to collect more and more DNA samples from suspects, witnesses and even victims. A new law was proposed by this legislative session in Washington state that would actually require the police to warn suspects that they have a right to have their DNA expunged if they are ultimately found to be “not guilty.”  The  proposed law provided:

An entity collecting a biological sample from an adult charged with a criminal offense or lawfully arrested for a criminal offense when there has been a judicial determination of probable cause, as required in this section, must provide the person with a notice of the rights to expungement…

However, as I mentioned, this law (HB 1138) was not enacted into law because it did not receive enough support. Maybe this will be the subject of future legislation.

Court of Appeals Decision Rules Against WSU in Case of Abdullatif Arishi in Expulsion and Suspension Cases

Two weeks ago, a Superior Court ruled against WSU in the case of Robert Barber, who I represented.  This morning, the Court of Appeals in Spokane ruled in favor of former WSU student Abdullatif Arishi holding that he was wrongfully expelled because he was not give a full hearing on the charges brought against him.  This was a big win by Pullman attorney Steve Martonick who represented the student.  The court ruled that students facing serious allegations on a college campus must be given a full hearing with the right to have a lawyer speak on their behalf and ask questions.  Previously, WSU would allow attorneys to be present but they were not allowed to speak or ask questions of witnesses.

Judge Laurell Siddoway authored the court's decision ruling WSU procedures unlawful.

Judge Laurell Siddoway authored the court’s decision ruling WSU procedures unlawful.

They court of appeals pointed out that expulsion hearings are serious matters for college students, and people face damage to their personal reputations and their academic career.  Additionally, in the case of Abdullatif Arishi, there was the additional consequence of losing a student visa and being deported. WSU argued that Title IX of Civil Rights Act mandated certain other procedures but the court rejected that analysis because the alleged victim of Mr. Arishi was not a student at WSU.

The decision means that in Washington state, when individuals make accusations against another student, they will have to appear in person and face questioning by lawyers in front of a disciplinary board.  Previously, an accuser could not be made to testify and an investigator would speak on their behalf.  I anticipate that the school might try to distinguish this court ruling in instances where the victim of an offense is an actual student at WSU.
The court decision also takes issue with WSU’s practice of allowing police officers or investigators to give an opinion on the credibility of witnesses.  The court ruled that this is unacceptable, and the hearing board itself needs to be making these sort of credibility determinations based on live testimony.
While on its face, the court decision addresses future cases, it is unclear to what extent this precedent can be used to assist students in past cases at WSU.  Typically an appeal would need to be filed to keep this issue alive in each case.  However, if the legal precedent was not available at the time, the argument could be made that past students should be given a rehearing.
The student conduct system at WSU has public criticized in the last few months particularly in the way that it was handled the cases involving student athletes.



Are Chinese Students Being Targeted for Expulsion by Universities for Cheating? (Lawyer’s Perspective)

The number of Chinese students attending universities in the U.S. has tripled in the last ten years. Along with the increase in the number of students, there have been an increase in the number of academic integrity cases brought against these students. An interesting article in the Wall Street Journal addressed this issue, and hinted at the possibility that Chinese students were being profiled and targeted for suspicion at universities in the U.S.

The Wall Street Journal sent public record requests to 50 universities across the country inquiring about the rates of academic integrity violations among international students versus American students. chinese student accused of cheatingOnly 14 schools responded with the data, but among those schools that responded, international students were five times as likely to be accused of cheating. The WSJl interviewed several professors and students, who anecdotally offered that they felt that cheating among students from china was particularly prevalent. The sources attributed this to the fact that Chinese students often arrived in the US unprepared due to the language difficulties (and thus were under more pressure to cheat) and also to perceived cultural differences that viewed cheating as more socially acceptable.

What the Wall Street Journal didn’t discuss was other possible explanations for why the data might be skewed. As a lawyer representing students accused of academic integrity violations, one thing that I have noticed is that the way a case typically starts is a classmate will report the violation. And when a student does report cheating to his professor, it is usually because the student feels like the “cheater” is somehow their rival. (No one reports their friends for cheating.) Chinese students are often safe targets to report. They often will keep to themselves, and they will associate mostly with other Chinese students. Additionally the Wall Street Journal has written in the past about resentment among Americans that the Chinese are taking up spots at state universities that could be going to other Americans.

Some of the academics that spoke to the WSJ about cheating on campus made reference to the fact that some Chinese students would complete assignments that were very similar and had many of the same incorrect answers. However, as we have discussed before, there are other explanations for why students might answer the questions in the same way. Foreign students might all study together, and their interaction with other students may be limited, and they may be slower to ask for guidance from professors or teaching assistants.

Many academic leaders have made statements that make it sound like they are unduly suspicious of Chinese students. Joyce E. Smith, who is the leader of the National Association for College Admission Counseling, stated that with Chinese applicants “there’s a worry about whether the application is authentic, whether the essay is authentic, whether the person who shows up at your door is the same person who applied.”  Much was made of the WSJ and other articles that online businesses exist that offer Chinese students ways to cheat in college in the United States. However, I don’t see how this is fundamentally different when I was in college in the early 90’s and there were advertisements in the back of Rolling Stone magazine offering term papers for sale. Most of students I work with at University of Washington or Washington State University that visit shady websites in China are native-born American students attempting to get fake ID’s so they can go to bars.

Using Statistical Methodologies in Detection of Cheating in Academic Integrity Cases

An an attorney who defends academic integrity disciplinary actions at state universities, I am often ask to give an opinion on charges brought against students for cheating based on similarities of their answers on exams. For example, let’s take a look at the following hypothetical:

A professor suspects two students of cheating, and studies the exam answers for similarities. The professor notes that both students got the same questions wrongacademic integrity lawyer. For example, on a multiple choice exam on American presidents, they both incorrectly answered 1) that Theodore Roosevelt was the longest serving president, 2) that George W. Bush initiated the invasion of Panama, and 3) that James Madison presided of the Civil War. The two students each got all other test questions correct.

To some professors, that would seem to be hard evidence of cheating.  What are the chances of two unrelated students each getting the same answers wrong in the same way, and all other questions correct? Not so fast, say statistical experts. As one statistician has noted:

It is our position, echoed by courts and statisticians alike, that at no time can one accept probabilistic evidence as sufficient merely because the occurrence of some value of a test statistic is highly probable.  Reasonable competing explanation must be considered. The limitations of the mechanistic detection strategies, and the inherent variability in test deign and administration reliability and validity found in all except the most rigors of standardized tests and testing situations, preclude an automatic acceptable of probabilities data as prima facie demonstration of misconduct. 

See, Dwyer, David J.; Hecht, Jefrey B. “Cheating Detection: Statistical, Legal, and Policy” (1994). Available at: // The author goes on to explain:

Finally, we must answer the question “is the sample of students being compared merely random or is it representative of the class as a whole?” If the class is comprised of distinct subgroups (by achievement, ethnicity, gender, etc?) then the sample from which we draw an inference must representative of the subgroup(s) as well. It is our opinion that no mechanistic detection method currently available sufficiently address these concerns to an adequate degree, casting doubt as to the utility of mechanistic methods to detect wrongdoing with a known and consistent degree of accuracy.

The problem with using statistical error analysis in academic integrity cases is that often times students will work together preparing for a test in a study group. Preparing for a test in a study group can lead students to all have similar understanding of the material, and this includes possible errors or misunderstanding of the subject, and can lead to similar incorrect answers on an exam. There are legal precedents that support this idea. One such case is the court opinion in Boehm v. Univ. of Pennsylvania Sch. of Veterinary Med., 392 Pa. Super. 502, 573 A.2d 575 (1990).  In that legal precedent a veterinary student at the University of Pennsylvania was accused of cheating, and was ultimately found to have committed the offense.  While the student was found to have been guilty, the university threw out the supposed statistical analysis and ruled:

While the information raises suspicion as to the cheating charges, the panel considers the comparison [of the test answers] to be unreliable due to its lack of statistical foundation particularly since the influence on test scores of studying together is unknown. Accordingly this information was not considered in the panel’s deliberations.

Id, 392 Pa. Super. 502, 516, 573 A.2d 575, 582 (1990) (emphasis added).  Similar statistical reasoning was also  rejected in the case of Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81 (2d Cir. 2011).  In that case three pharmacy students were accused of cheating on a test.  The case described the circumstances as follows:

In support of the charges, Nowak [a teacher] presented evidence, which consisted primarily of  “statistical” charts that she had prepared based on her review of exams taken by Papelino, Basile, and Yu in various courses. Papelino, Basile, and Yu countered with (1) the lack of evidence of the means by which the three might have managed to cheat; (2) the fact that the three studied together, and therefore had similar knowledge bases; and (3) the lack of validity of the “statistical” evidence.

Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 86-87 (2d Cir. 2011).  The case goes on to explain that the Supreme Court of New York rejected such evidence, and “…concluded that the Honor Code Committee’s determinations were based ‘solely’ on a ‘statistical compilation’ that was based upon ‘false assumptions’ and did not provide ‘a rational basis to conclude that petitioners cheated.’” Id at 87.

While statistical similarities can be a starting point for an academic integrity investigation, such proof should not be taken as conclusive evidence by itself.

Remembering Attorney Emma Paulsen

The Omak-Chronicle reported today the death of Emma-Paulsen, the elected Ferry County Prosecuting Attorney. I think I first met Emma Paulsen around 2005 when I first started taking cases in Okanogan County. She worked as public-defender and also did private work on the side. I would have lunch with her on occasion, and she would sometimes fill in for me in court. Her public-defense clients were often very glad to have her, and she would often work until midnight preparing her cases.

Emma Paulsen, Ferry County Prosecuting Attorney

Here is a picture of me, Emma Paulsen, and attorney Anthony Martinez. We all went out to dinner at the Hotel Monaco in Seattle. Emma gave a presentation the next day at the Washington State Bar Association. Her t-shirt read: “I am a lady with the vocabulary of a well-educated sailor.”

In 2014, she moved to Republic, Washington to run for a position I once held, Ferry County Prosecuting Attorney. It is a position that is correctly viewed as a public service. The work hours are long, and the work can be maddening. Her predecessor was known as being lenient, and she made it known that she was going to be a bit tougher. She forged stronger alliances with the local police departments, and would sometime accompany them on ride-alongs so she could learn more about what they did, and also provide them with direction on what she needed from them. She was an excellent lawyer. I will always remember her as a good-natured lawyer who was always on top of her game and rarely lost in court. I have kind of been in a daze since hearing about her death today, but I dug up this picture that I like. I posted this on Facebook, but I wanted to share it with people who are not on Facebook.

Jeffrey Havard and the “Gate-Keeping” Function

“Gate-keeping function.” That is what you call the judge’s role in deciding whether to allow an expert witness to testify. The judge is supposed to screen experts to make sure that what they are saying is scientifically sound. Jurors have a hard time assessing scientific evidence, and are too susceptible to believing whatever an “expert” tells them. When the judge does not properly exercise this “gate-keeping” function, all sorts of things can go wrong.goal-819980_640

A case in point is the Jeffrey Havard conviction. After 13 years the Mississippi Supreme Court has finally conceded that Jeffrey Havard is entitled to a hearing at the trial court level on whether or not the new evidence about the expert witness Steven Hayne’s testimony warrants a new trial. In 2002, Dr. Hayne made several unsupportable conclusions about the way Havard’s girlfriend’s daughter died. He has since clarified and retracted many of the statements over the years, but this has left a 13-year mess and an innocent man still behind bars. See my prior posts about the Jeffrey Havard case here and here.

In 2002, Jeffrey Havard was charged with murder. The pathologist Steven Hayne testified that the death was caused by shaken baby syndrome. Havard’s lawyer asks for a second opinion from an independent pathologist but that request was denied. At the trial, Dr. Hayne testified: “It would be consistent with a person violently shaking a small child. Not an incidental movement of a child, but violently shaking the child back and forth to produce the types of injuries that are described as shaken baby syndrome, which is a syndrome that is known for at least 45 years now.” Years later in an interview with the Clarion Ledger, Dr. Hayne seemed to back away from that conclusion. He later prepared an affidavit for the defense team explaining: “At trial I testified that the cause of death of Chloe Britt was consistent with shaken baby syndrome. Recent advances in the field of biomechanics demonstrate that shaking alone could not produce enough force to produce the injuries that caused the death of Chloe Britt. The current state of the art would classify those injuries as shaken baby syndrome with impact or blunt force trauma.” (Thus consistent with Havard’s explanation that the child accidentally fell and hit her head.)

The change in Dr. Hayne’s testimony coincides with a shift in thinking in the medical community on the subject of shaken baby syndrome. One of the physicians who originally developed the science of Shaken Baby Syndrome published a paper in 2012 expressing concerns about the misapplication of the science. The physician, Dr. Norman Guthkelch, wrote: “While society is rightly shocked by an assault on its weakest members and it demands retribution. But there seem to have been instances where both medical science and the law have gone too far in criminalizing alleged acts of violence of which the only evidence has been the changed clinical state of the infant.” And that is pretty much the Jeffrey Havard case. Extremely shocking allegations that were deeply disturbing to the members of the jury. At his trial, the criminal defense lawyer at the time was denied funding for an independent expert. The only testimony the jurors heard was the flawed testimony of Dr. Hayne, which he later has partially recanted. An independent expert can assist a court in exercising its gatekeeping function by revealing to the judge that the opinion offered by the state’s expert is scientifically flawed.




Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking:
Law Office of Steve Graham
1312 North Monroe Street, #140
Spokane, WA 99201
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