Archive for August, 2009

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

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

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

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

I noticed in my years working as a prosecuting attorney that police officers often had a rather black-and-white view of the world.  It was good versus evil, with not a lot of in between.  They did not seem to wonder too often if a person charged was truly guilty – it was usually assumed.   I don’t think I ever heard it questioned whether a defendant was receiving a fair trial, or if the media was giving the accused a fair shake.  Then, on June 22nd, 2009, it was announced that Office Karl F. Thompson was being charged in federal court with two felonies related to the death of Otto Zehm, the mentally disabled janitor the police beat and tased at Zip-Trip while he bought a soda on March 20th, 2009.   As that indictment was handed down, I kind of wondered what response the police community would have to Karl Thompson’s indictment.  Would they explain his actions away as those of one bad apple, or would they rally in his defense?

Well, I received my answer this week when I noticed online that Karl Thompson’s supporters had created a Face Book “fan page” for him.   The page promotes the sale of bracelets for $10 each.  The page blames the media for making Karl Thompson a “media scapegoat,” but then writes: “Thanks to the story in the Spokesman-Review, demand for the wristbands has increased.”  As of today, the page had almost 230 fans.

See news story about indictment:

I will continue to follow the case of U.S. v. Karl Thompson, as well as the civil suit the family of Otto Zehm as brought against Karl Thompson and the City of Spokane.   The Center of Justice in Spokane has a website about Otto Zehm. A central issue in both the civil case and the criminal case will be Thompson’s compliance with Spokane County’s use of force policy. The policy authorizes varying level of force depending on the threat that the police encounter.

When interviewed by police officials, Karl Thompson admitted that Otto Zehm did not try to strike him, but explained that Zehm refused to drop the plastic bottle of soda he was carrying. Thompson stated that he feared the two-liter bottle could be used as a weapon.  When interviewed, Thompson explained that the learning-disabled Zehm responded “why?” when Thompson told him to drop his soda.  Thompson explained that he struck Zehm first in the leg with the police baton trying to knock him to the ground. The store video in Zip Trip is partially obscured by the store shelves but it shows the officer standing over Zehm from behind.

I had high hopes for Greg Ridgley, the 18-year-old Spokane city council candidate.   He was young, nervy, and full of new ideas for the Lilac City.  And lets face it, he would have provided lots of things to blog about.   I wrote about him last month here.  At 11:05 a.m. an individual named “bonzai” posted a comment on that article predicting: “Today is judgment day for young Mr. Ridgley. I bet he gets only 3 or 4% of the vote in today’s primary.”

Well, right you were, the results were released at 8:00 p.m. by the Secretary of State, and Mr. Ridgley only received 3.34% of the vote.  Mr. bonzai made a good prediction.  The results of the election are here.

The 3.34% that Ridgley received was way lower than lawyer Steven Eugster received at 16%, and he ran for election after having been suspended from the state bar.   Eugster was known for suing the city of Spokane.    Ridgley, did however, soundly beat (by a 3-2) margin David Elton, a candidate for city council who recently was arrested for threatening to kill the council president, according to news stories.  Maybe that was the problem – the protest vote was split this year.  If you are really fed up with city government, do you vote for:  1) an attorney that sues the city,  2) a man who allegedly threatens to kill city officials, or 3) do you vote for an 18-year-old out of protest?

Maybe the protest chic of voting in an 18-year-old has worn off.  18-year-olds can and do win election races, according to news stories.   But I started to worry about Greg Ridgley’s chances when he never really developed a strong internet campaign.  It seems if you are young, you at least have to use the medium that favors your demographic.  Also, when I would travel to Spokane for court, I really didn’t see his campaign signs up.  He made a lot of campaign appearances, and I am sure he really got a lot of public speaking experience.  He seems to be taking the election loss in stride.  His latest posting on Facebook is “Greg went all in and lost in Texas Hold ‘Em Poker.”

Indeed you did Mr. Ridgley.  We hope to see you again.

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?

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

The District Court judge hears small claims, small suits, name changes, and presides of misdemeanors such as DUI, minor assaults, etc.   Pam Payne always seemed to be pretty well thought of by prosecutors and defense attorneys alike.  I practiced law in front of her regularly my first year of private practice in 2003.  I always found her to be very fair.   Pam Payne, while she was a Stevens County Judge, often times would come to Ferry County once per month to preside.

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

You are NOT taking my gavel

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

Is that fair?

In June, I was in Chelan for some training, 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 there to having a judge that is over 75?