Archive for February, 2010

It looks like he took the day to think about it, but Spokane Prosecutor Steve Tucker closed the week by putting David Stevens on leave.  David Stevens, a deputy prosecutor in Tucker’s office,  announced a short time ago that he would run against his boss in the 2010 election.  See yesterday’s post.    Tucker seemed to be predicating the disciplinary action on the fact that Stevens criticized him publicly.  See Spokesman article.  From a legal standpoint disciplining an employee for running for office could be problematic.  In many prosecuting attorney offices, the deputies serve at will, and can be fired at any time as envisioned by RCW 36.27.040.  However, this general rule is trumped by any specific union contract or personnel policy in effect in the particular office.

Elected prosecuting attorneys usually face a lose-lose proposition when a deputy runs against them.  The elected prosecutor can fire the deputy and look mean and vindictive and face a lawsuit, or he can keep signing the paychecks as his employee trashes him on the campaign trail.  Keeping the election challenger on the payroll usually splits the office into two different camps, and productivity plummets.

Do you want to see what a recent interoffice election battle can do to a prosecutor’s office?  Check out Grant County.  In 2008 elected prosecutor John Knodell quit after 5 terms to serve as a judge.  Therefore the commissioners appointed Deputy Prosecutor Angus Lee to replace him, and many more senior lawyers quit, and one was fired.  Another deputy prosecutor, Albert Lin ran against him.  Angus Lee didn’t fire him, and the office was largely split into two camps of Albert Lin supporters or Angus Lee supporters.  I blogged a little about it here and here, but the definitive article is The Albert and Angus Show.   (It seems like Angus Lee is now getting the office back on track.)

While I am sure Steve Tucker was not excited about being called “an absent administrator”, it gets worse.  During the Grant County election one deputy prosecutor called Angus Lee a “c**k sucker.”  See source.

The bottom line is if you are going to run against your boss, you should quit.  This is true of any county courthouse position.  This is particularly true if you will be publicly criticizing your boss.  If you run for office to improve the office, it is not fair to stick around and cause deep rifts that ruin productivity.  A campaign is a major distraction.   I suppose ideally you would get fired, collect unemployment, have lots of time to doorbell, play the martyr, and reserve the right to bring a lawsuit.  But that is in your interest, not the public’s.

However, if the election challenger does not do the right thing and quit, the incumbent is not advised to fire him for that reason alone.  The legal authority is too murky in this area, particularly where there is a union contract.  It is probably nice not to have your opponent in your office spying on you, but if a suit is filed it will be the public who ends up paying the price.

What do you think?  Should election challengers stay or go?  Can an employee really mount a challenge against his or her boss without harming the office as a whole?

The Spokesman-Review reported this morning that attorney David Stevens was challenging his boss Steve Tucker for the elected position of Spokane County Prosecuting Attorney.

Attorney David Stevens

Attorney David Stevens came out swinging, and was quoted as characterizing his boss as “an absent administrator” and saying that he has seen a “total lack of leadership.”   The reporter for the Spokesman-Review, Jonathan Brunt, asked Steve Tucker if David Stevens could be let go, and Tucker reportedly said “all options are on the table.”

It will be interesting to see the fireworks in this campaign.  Attorney David Stevens has run for about a zillion elected positions in the past.  You have probably heard his name before.  Here is the tally if you haven’t been keeping track: In 2004, he ran unsuccessfully against Democrat Alex Wood for, who won the 3rd District legislative race.  Part of his campaign was to oppose gay marriage.  See source.  In 2006, he ran for District Court Judge in Spokane against Harvey Dunham and lost.  In 2008, he ran unsuccessfully against Linda Tompkins for Spokane Superior Court Judge, arguing that the bench needed more former prosecuting attorneys.

David Stevens is a 1999 law grad from UW.  Although he has lost all his races in the past, he has always been able to garner a fair amount of endorsements.  It doesn’t seem that he has a web page yet for his latest race.  In 2008, when the Spokane County Bar Association attempted to conduct a poll of lawyers on the potential judicial candidates, David Stevens refused to participate.

I blogged about David Stevens last December on the subject of his questionable decision to send a man to prison for 2 1/2 years for stealing a can of sardines from Rite-Aid.  See post.  I am a former prosecutor and there is something to be said for being tough on crime, but I really wonder about the wisdom of Stevens’ decision to use a prison bed on a sardine thief.  There are just too many other violent criminals that ought to be in there.

What do you think?  Is David Stevens the right man for the job?  Will any defense lawyers run for prosecutor this year?  Was Stevens right to tie up a jail bed for 29 months for the guys who stole sardines?

Toyota vehicles have had a reputation in recent years as being pretty well made.  That has been in jeopardy recently when Toyota has announced the recall of several of their vehicles.  According to the Spokesman-Review this morning, the National Highway Traffic Safety Administration is looking into allegations of momentary loss of braking capability in the Toyota Prius while traveling over uneven road surfaces, potholes or bumps.  Hey, those roads kind of sound like the roads of Ferry County don’t they?  Or even worse the pothole ridden roads of the city of Spokane.  Additionally, there has been a problem with the Toyota’s suddenly accelerating for no reason.  Much of the investigation has come from reporters from the LA Times and trial lawyers who have been researching the safety records of these cars. According to an LA Times blog:

Reporters Ken Bensinger and Martin Zimmerman first wrote about an upcoming recall by Toyota on Sept. 30 that blamed floor mats for causing a gas pedal to stick. This came in the wake of a horrific crash near San Diego in August that killed an off-duty California Highway Patrol officer and three members of his family after his Lexus sped out of control.

Trial lawyers are already advertising their interests in taking such cases, see here, for example.  I can predict the class action suit settlement already.  The lawyers get $5 million dollars attorney fees, and the three people killed in the San Diego crash get coupons for floor mats.

What is interesting, is it is actually pretty hard to find a definitive list of what cars are actually subject to recall.  The Toyota Press Room explains:

The specific model names and years associated with the newly-expanded population of subject vehicles for the pedal entrapment recall include:

2008-2010 Highlander
2009-2010 Corolla
2009-2010 Venza
2009-2010 Matrix
2009-2010 Pontiac Vibe

I am not sure that is definitive.  You think Toyota would have this information on line and that it would be pretty easy to find.  What will come of the recall?  Will the problems be found to be broader then first announced?  Will the Toyota brand take a permanent hit?

(By Steve Graham, a Criminal Defense Lawyer)

Have you ever been a party to a class action suit?  One time my father was.  An airline screwed him and thousands of other travelers by fixing their prices in violation of anti-trust statutes.   When I was a kid, my father used to fly about once a week at times, so he joined the suit and figured he had some money coming.  Nope.  The attorneys settled the case, reaped huge attorney fees, and all my dad got was  a coupon for about fifty dollars to be used on a future flight.  The coupon had so many restrictions on its use that it was virtually worthless.  My dad wasn’t happy.  This was about 20 years ago, but problems continue with these suits.

In 2001 Block Buster video opted to  settle a class-action lawsuit over late fees, and the attorneys suing Blockbuster agreed that Blockbuster should issue coupons to the plaintiffs for free or dollar-off movie rentals.  The Texas attorneys that settled the suit saw to it that the settlement gave them $9.5 million in attorneys fees.  Critics attacked the settlement as another glaring example of what is wrong with a system whose prime beneficiaries are the lawyers.

I thought of this recently when I read in The Olympian this morning about a California judge who fought back against the system.   An attorney attempted to settle a class action suit against a woman’s clothing store that violated credit card laws.   He proposed a settlement where he would receive $125,000 cash and the women would get $10 coupons.  Judge Brett C. Klein instead ordered that the male attorney would instead get $125,000 worth of non-transferable coupons for women’s clothes.   The attorney wanted to be paid $395 per hour and instead got coupons.  Pretty funny, huh?  The California Bar didn’t think so.  As announced in the news story here, the judge was accused of grandstanding by releasing the story to the newspaper.  The judge didn’t care as he was about to retire and even agreed to the discipline action rather than fight it.  If the judge wanted to draw attention to class action coupon scams, he definitely succeeded.  The story has been picked up by the wire service and is all over the country now.  If you want to read the decision admonishing the judge, it is online here.

My dad would love it.

Here in Washington, there has been criticism of similar class action settlements.  In the case of Picket vs. Holland America cruise line, Justice Sanders of the Washington Supreme Court complained about a proposed settlement.     In his dissent, Justice Sanders explained:

The settlement would offer discount coupons having virtually no practical value to class members. Although Holland claimed the 1.5 million coupons offered had an aggregate face value of $ 20 million, the conditions placed on redeeming these coupons, coupled with the nature of Holland’s price schedule, ensured only a miniscule portion of these coupons would ever be used, and even then only if a class member paid Holland thousands of dollars for future trips. The coupons ranged in value from $ 10 to $ 50 and were subject to a so-called “capacity control” restriction, meaning they could be used only on travels booked less than 45 days from departure. However Holland frequently sells its cruises on an early-purchase, reduced-fare basis. Savings under this early-purchase scheme range as high as 20-25 percent of the ticket price, which sometimes goes as high as $ 5,000. Naturally, reasonable travelers will not forgo such large savings to receive a coupon credit of only $ 10 because early-purchase discounts would more than offset whatever illusory benefit might be achieved from the settlement.

What a racket.  The so called coupons are really pretty worthless.  What do you think?  Time for a little reform?  Did Judge Klein bring attention to this issue agreeing to be disciplined by the California Bar?

I have had the pleasure of working recently with Robert Gaines, a private investigator in Okanogan County.  I believe I met Bob Gaines some years back when he was a detective for the Okanogan County Sheriff’s Office and the Task Force and I was a prosecutor.  He has a lot of detective experience, and recently he has been helping me as a defense investigator in a case in Okanogan.  He has been great to work with.  He is also available for insurance and fraud investigations, service of process and civil papers.  Check out his website Cascade Investigations.  He has been a great asset to me because he understands how Okanogan works.  For those of you unfamiliar with the area, Okanogan County is about the size of my home state of Connecticut.  Okanogan County is 5,315 square miles, and Connecticut is 5,544.  So having a local help me out is an asset.  Bob Gaines will also be taking cases in Chelan County and Douglas County.  Although people may often think of private investigators as being important in divorce cases, etc., actually, having a private investigator in a criminal case is important.  Much like an indigent defendant has a right to an attorney at public expense, defendants in major criminal cases are entitled to investigators at public expense to assist the defense lawyer.

Recently the Washington State Supreme Court overturned the conviction of a juvenile who plead guilty, and then sought to withdraw his plea.  See State v. A.N.J.  Part of the reason the court allowed the defendant to withdraw the plea was because the original defense lawyer took no steps to investigate the case.