Posts Tagged ‘criminal defense lawyer’

Criminal Defense Lawyers Challenge "Green Tongue" Phenomenon in Drug DUI Cases

In the last ten years, police in Washington State have paid a lot more attention to the problem of drugged drivers.  A rookie cop can detect a driver who has drank too much alcohol, but it takes a little training and experience to determine if a driver has been using controlled substances such as cocaine, methamphetamine, marijuana or prescription pills.   After completing certain training, an officer can become a Drug Recognition Expert or “DRE”.   We have many such DRE’s here in Washington, especially in Spokane.  The problem is that people are catching on that the so-called drug recognition “experts” really are basing their opinions on many things we do not really recognize as science.  Take for example, the green tongue phenomenon.  The National Highway Traffic Safety Administration warns of the following characteristics of a marijuana DUI: “… characteristic indicators may include odor of marijuana in car or on subject’s breath, marijuana debris in mouth, green coating of tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on field sobriety tests.”  Criminal defense lawyers are not the only ones questioning the validity of this “green tongue” thing.  The Washington Court of Appeals also questioned whether a green tongue establishes probable cause for anything.  The court agreed with the defense lawyer that no probable cause existed, explaining:

Trooper Lane contends that a green tongue is indicative of recent marijuana use. Even assuming he is correct, the absence of any other indicators of recent marijuana usage, combined with the many innocuous ways to get a green tongue, indicate a lack of reasonable suspicion.  Although we assume the officer’s assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion’s fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two.

To you non-lawyers out there, that is the Court of Appeals basically politely telling the Washington State Patrol DRE’s that they are full of baloney.  These “experts” are often very well-trained and seemingly professional, and can be very convincing to jurors.  I defended a drug DUI one time where a DRE from Okanogan County claimed he had probable cause to believe that the driver was under the influence of marijuana.  The DRE wrote in his report:

“He had raised taste buds on the back of his tongue with a green coating on his tongue.  His lips were burnt and crusty on top and bottom lips.  … His thumb and index fingers of both hands were discolored.  The discoloration on his fingers and lips was consistent with holding hot smoking pipes.”

This seemed a little fishy to me, and I eagerly awaited the toxicological report on the blood test.  The results indicated that there was absolutely no marijuana (even in trace amounts) in this driver’s blood.  Instead there was methadone found in the drivers blood, just as it was found in his car.

Is there any system of accountability for the DRE’s out there?  Is anyone keeping track of all the times the DRE’s got it wrong?   The Supreme Court in Utah is also catching on.  In a court opinion State v. Hechtle, they explained:

We are troubled by the trooper’s reliance on the appearance of Hechtle’s tongue as dispositive proof of marijuana use. Even if we were persuaded to accept the State’s position that the condition of Hechtle’s eyes and tongue are presumptively suggestive of marijuana use, nothing in the record indicates either how long these conditions are sustained or how long measurable quantities of marijuana remains in the system as required by the statute.

So, I guess in some sense, the system is working – courts are catching on.  But on the other hand, what other aspects of DRE “science” are slipping past us all?

Oops — Arnold Schwarzenegger Spaces Deadline, Rape Suspect Released

When federal agents show up to arrest someone on a 3-million-dollar warrant, you figure that person won’t be seen for a while.   Not the case with Brian Lee Hudson.  He was arrested at a Spokane homeless shelter, yet returned a week later.  According to a story in the Spokesman-Review, Hudson “was set free when he made his first appearance in Spokane County Superior Court because necessary paperwork hadn’t arrived from Gov. Arnold Schwarzenegger’s office in Sacramento, Calif.”

I suppose it is helpful to have a good criminal defense lawyer, but sometimes defendants simply catch a break because they are lucky.  (I guess the unlucky party would be the public.)  According to the article, the suspect surprisingly went back to the same homeless shelter after he was released.  You would think that he would have hit the road and tried to hide out.  These extradition cases are a real pain in the butt for prosecutors to deal with.  A lot of people are surprised by this, but unless a defendant waives his right to extradition, a state really needs a warrant signed by the governor in order to return a fugitive to face charges.  I can remember as a prosecutor how the State of California was pretty bad about follow up on these things.   It seemed like the parole officers would always claim that they would want to extradite a fugitive, but after Washington would hold them for a few weeks, California would change its mind.  A lot of times a defense lawyer will advise his or her client to waive extradition to expedite the process.  Usually extradition among the 50 states is inevitable; it is not like extradition issues between countries.  A lot of people are not aware of it, but many Indian Tribes have extradition laws as well.  For example, the Colville Tribes have a policy codified here.  The county jurisdictions should not be bringing tribal members to State courts without the approval of the Tribal Court.  Most countries do not have extradition policies or restrictions within their boundaries.  The interstate extradition issues as faced in Brian Hudson’s case are a result of States’ rights here in the U.S.   Lately, in Washington and Idaho, conservatives have been championing the notion of State sovereignty.   My guess is that the interstate extradition laws will probably be reformed avoid problems such as what happened with Brian Hudson.

Criminal Defense Lawyer Continues to Speak Out on Questionable Robbery Conviction in Spokane

I have never met the guy, but you have to hand it to defense attorney David Partovi for the tenacious defense of his client Tyler Gassman.  Partovi went down swinging in Gassman’s defense last year on a questionable robbery conviction, and is continuing the fight.  Partovi has lodged a bar complaint against the Spokane prosecutor, agreed to interviews with the press, filed appeals, and has even taken the unusual step of commenting on the newspaper articles in the online comment section.  He even got the Spokane prosecutor personally fined for $8,000.  (Ouch!  Giuliano Mignini anyone?)  According to news reports, Partovi even wept at sentencing for Gassman.  As a result, the amount of people taking notice of this case is beginning to grow.  The most recent person to take notice is Jacob H. Fries, the managing editor of The Inlander.  Fries is no stranger to writing crime stories, having covered such matters for the New York Times and The Boston Globe.  Now the Spokane native is covering injustices in Spokane.  See his recent piece on Gassman’s case hereThe Inlander apparently is doing a series on unjust convictions in Eastern Washington, and lists a contact number on their site for people to submit ideas.

Here is what all the fuss is about.  The Spokane prosecutors had a rock solid case against a robbery suspect, and let him go with a slap on the wrist in exchange for pointing fingers at seemingly anyone he chose, including Tyler Gassman. You really have to wonder about this business of “buying” the testimony of criminals with promises of leniency.  If it is a crime to bribe a witness with cash in exchange for his testimony, how is it any better when a prosecutor “bribes” the witness by offering him or her freedom?  In 2002 the Tenth Circuit Court of Appeals ruled: “If justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so.”  Such squeal deals seemed like they would be prohibited.  However, the court overturned itself 9 days later, and prosecuting attorneys continue to troll the local jails looking to make bargains for testimony with inmates desperate for their freedom.  And that is essentially what David Partovi faced when Matt Dunham agreed to point his finger at Tyler Gassman and other Spokane locals.  Serving as Tyler Gassman’s criminal defense lawyer, Partovi sought to impeach the credibility of Dunham at trial.  Dunham’s cellmate told the defense lawyer that Dunham was making it all up to save himself, but the cellmate refused to testify.  (A criminal defense lawyer, unlike a prosecutor, can’t agree to give witnesses immunity).   After Tyler Gassman was convicted and sentenced to 25 years in prison for allegedly robbing drug dealers, the cellmate (Anthony Kongchunji) finally agreed to come forward.  Sounds like good grounds for a new trial right?  Spokane Superior Court Judge Michael Price didn’t think so.  He ruled that the defense lawyer erred by not hauling Kongchunji up to be made to forcibly testify.  Huh?  Doesn’t someone pretty much always have the right to take the fifth if they think they are going to incriminate themselves?   Apparently a police detective subtly (or not so subtly) implied that the cellmate could be facing perjury charges if he testified for the defense.  That could give any witness cold feet.

Right now, the case is on appeal.  We will wait and see.   Let’s ask Spokane prosecutor candidates what they think about this case?  Attorney David Stevens has announced his candidacy, as well as attorney Frank Malone.  Someone please ambush them at candidate’s night and let us know what they say.  Somehow, I have a feeling David Partovi will be in the front row with his hand up.

Shouldn’t prosecutor’s offices have some sort of written policy on offering leniency in plea negotiations in exchange for testimony?  What do you think?

(Photo does not depict any actual participants in this case.)
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
(509) 252-9167
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