Defendant Has Right to Be Present During All Jury Selection

A defendant is headed for a second trial for first-degree murder after his first conviction was reversed because he had not been present for all aspects of jury selection. Biker convicted in ‘no-body’ Ravensdale killing headed for new trial, SeattlePI.com, Feb. 26, 2012.

The Court of Appeals case is State v. Price, No. 63056-3-I, Justia link, Findlaw link (July 25, 2011). (The court also addresses a Rule 404(b) issue, saying that the trial judge was within her discretion to admit evidence of the defendant's membership in a biker gang.) The Court of Appeals applies a recent Washington Supreme Court case that examines the right to be present for jury selection under both the federal and the state constitutions. State v. Irby, 170 Wn. 2d 874, Google Scholar link (2011).

Prosecutor May Disclose Cop's Records from Elsewhere

After he accidentally became aware of a dispute between an officer (in Quincy, WA) and a prior employer (a sheriff's office in California), the Grant County prosecutor determined that the proceedings showed a record of dishonesty and hence should be disclosed to defense counsel in cases where the officer was a witness. The officer sued. On appeal, Division III upheld the superior court's decision to allow disclosure. Doyle v. Lee, No. 29212-6-III (Feb. 2, 2012), Washington Courts link.

See Prosecutor can give information about Quincy officer, Columbia Basin Herald, Feb. 8, 2012.

Updates to Pattern Instructions

Today the Washington Courts announced:

several criminal pattern jury instructions were recently updated. Changes have been made to WPIC 1.01, 4.61, and 4.69 in order to spell out in greater detail the prohibitions against jurors discussing the case with others, including with regard to their electronic communications. Changes also have been made to several concluding instructions, incorporating State v. Bashaw’s holding that unanimity is not required for jurors to answer “no” on a special verdict form; see WPIC 30.03, 50.60, 50.60.01, 160.00, and 300.51.  

These updates have been incorporated into all formats, including the printed pocket parts, Westlaw, and the free public website.

You can sign up for email alerts about court rule changes and pattern instruction changes here.

State v. Bashaw, cited in the announcement, is here: 169 Wash.2d 133, 234 P.3d 195, Google Scholar (2010)

Hiding Tattoos?

In pretrial motions, lawyers argued over whether the jury should be allowed to see Michael Coombes's tattoos – one on his face with A-F (for Aryan Family) and one on his hip with a gun and a syringe; the gun was the same brand and caliber as the murder weapon. Murder suspect hopes makeup will hide criminal history from jury, KXLY (Spokane), Dec. 12, 2011.

 

One issue was whether revealing the tattoos would also reveal the fact that the defendant was serving time in prison for the murder when he got them. He was getting a new trial because he had successfully argued that his guilty plea should be invalidated because of a misunderstanding of how time off for good behavior would be calculated. In re Coombes, 159 Wash.App. 1044, 2011 WL 240687 (Wash.App. Div. 3 2011) (unreported). The jury did learn of the hip tattoo (but I'm not sure if they saw it). Closing arguments heard in Coombes murder trial, KLXY, Dec. 16, 2011.

Coombes was convicted and received a sentence about 7 years longer than the sentence under the plea he had withdrawn. Jury convicts man of 2007 slaying, Spokesman-Review (Spokane), Dec. 19, 2011. By the way, the Spokesman-Review blog, Sirens & Gavels, has a number of posts tagged "neck tattoos": Coombes is not the only defendant who risks the jury forming an opinion of him based on his body art.

Second Trial in Civil Sex Abuse Case Because of Juror Misconduct

A Shoreline pediatrician will have a second trial in a civil case brought by young men who allege he engaged in improper sexual conduct with them when they were minors. The doctor admits to much of the conduct but says it was a legitimate part of his mentoring the boys.

Originally there were thee cases filed by four young men and their families. The cases were consolidated. The jury ordered the doctor to pay damages to three young men and their families, but the sum was much lower than the plaintiffs had sought. Now two of the plaintiffs have withdrawn from the suit.

The retrial follows juror misconduct in the first trial:

• a juror failed to disclose that she and her husband had been sued for medical malpractice;
• a juror told other jurors about her experience of sexual abuse but had not disclosed it during voir dire;
• jurors shared newspaper stories and watched television news about the case.

Noted Pediatrician Accused of Preying on Patients Faces Jury ‐ Again, Seattle PI, Nov. 22, 2011.

The Court of Appeals opinion upholding the trial court's declaration of a mistrial is Kuhn v. Schnall, 155 Wn. App. 560 (2010) Legalwa.org link.

Prosecutor's Comments Questioned

The Washington State Supreme Court overturned a conviction this month because of the white prosecutor's remarks that black witnesses had not testified against the black defendant because of a purported code that "black folk don't testify against black folk." State v. Monday, No. 82736-2 (June 29, 2011), links to opinions on court's website: majority, concurrence, dissent. See Jennifer Sullivan, Seattle murder conviction tossed out over 'racist' comments, Seattle Times, June 9, 2011.

King County Prosecutor Dan Satterberg wrote a guest editorial apologizing for the comments. 'No-snitch' argument untrue, damaging to trust in law enforcement, June 16, 2011.

This statement is untrue and offensive. We know from experience that the "no snitch" ethic is not confined to any particular race or background. We see it commonly across a wide range of cases that we handle. On the other hand, we also see witnesses of all races and backgrounds participate fully in the criminal-justice system, fulfilling an important civic duty that keeps us all safe and protects our constitutional rights.

Compounding the error, the statement has the unfortunate and ironic effect of further eroding trust in the criminal-justice system. By decrying the "no snitch" ethic in this manner, the senior deputy prosecutor created yet another reason for some to believe that our justice system is biased and racist.

Now an appeal is arguing that the same deputy prosecutor (James Konat) made inappropriate comments in his closing argument in the trial of Sebastian Burns who was convicted with Atif Rafay of killing Rafay's parents and sister. Konat said that the crime was worse than a Middle East beheading of a U.S. citizen, a comparison the brief argues was an appeal to nationalism and prejudice. Prosecutor's comments cited in call for new Sebastian Burns trial | Seattle Times Newspaper, June 20, 2011.

Defense Attorney Profile

This morning's Seattle Times has a front-page profile of attorney Eric Lindell. Ken Armstrong, West Seattle attorney takes difficult cases -- and wins | Seattle Times Newspaper, April 17, 2011.

Lindell's career has focused on criminal defense, first with SCRAP and then in private practice. One case discussed is an appeal currently pending in the Washington Supreme Court challenging the statute that allows propensity evidence in sexual abuse cases (RCW 10.58.090). See earlier post about this case in Division I.

The article discusses several other cases in which Lindell represented criminal defendants. And there's one case where his work on behalf of a private client led to a successful prosecution. A child had drowned when in the care of her stepfather. Investigators originally ruled it an accident, but the mother thought her husband had killed the little girl. Lindell's work on a wrongful death suit (that was dropped) led to the prosecution and conviction of the stepfather -- the justice the mother wanted.

Admissibility of Past Acts of Sexual Abuse

RCW 10.58.090, added in 2008, allows trial courts to admit evidence of prior sexual misconduct in sex offense cases, even if it would be excluded under ER 404(b). The evidence must still be admissible under ER 403.

Last month, Division I upheld the statute's constitutionality over a variety of objections by a man convicted of molesting his granddaughter after a trial that included the testimony of several other relatives he had molested when they were girls. State v. Scherner, No. 62507-1-I, Findlaw (Dec. 21, 2009).

The court cited (n. 12) a comment by a current UW student: Blythe Chandler, Comment, Balancing Interests Under Washington's Statute Governing the Admissibility of Extraneous Sex-Offense Evidence, 84 Wash. L. Rev. 259 (2009) (abstract). See UW Law news release.

The bulk of the opinion discusses the constitutional challenges to the statute. An unpublished part, at the end, deals with a few other claims, including whether the jury was tainted by seeing a Seattle Times article, Rape trial lets family share decades of pain, secrets, Seattle Times, Aug. 19, 2008 (four jurors saw the headline and picture; none said they read it).

Other coverage of this case in the Seattle Times:

• Child-rape suspect, 79, can't be found, March 4, 2008.
• Child-rape suspect, 79, arrested in Florida, March 6, 2008.
• Man fleeing child-rape trial here is arrested in Florida, March 7, 2008.
• Past abuse acknowledged in molestation case, Aug. 21, 2008 (reports on defendant's testimony).
• Jury finds California man guilty of molesting young relative, Aug. 21, 2008.
• Man found guilty of molesting 7-year-old relative, Aug. 22, 2008.
• Sex offender sentenced to prison for molesting young relative, Oct. 3, 2008.
• Scherner, 79, sentenced to prison for molesting young relative, Oct. 4, 2008.

Is WWU drama professor provocative, or an abusive bully?

Local News | Is WWU drama professor provocative, or an abusive bully? | Seattle Times Newspaper, June 9, 2009. The insults and epithets quoted in the article strike me as abusive, although the professor say they're just part of his teaching style and his counsel argues that they are protected by academic freedom.

In 2005 faculty disciplinary board at Western Washington University suspended him for two quarters. That decision was upheld by the Whatcom County Superior Court. And now Division 1 of the Court of Appeals remands for a new hearing:

We hold that the University did not violate Mills’s employment contract, that the Faculty Code of Ethics is not unconstitutionally vague, and that the University did not violate Mills’s free speech rights. However, we also hold that the University violated the
Administrative Procedure Act by conducting Mills’s disciplinary hearing in secret. Accordingly, we vacate the University’s Final Order and remand to the University for a new hearing.

Mills v. Western Wash. Univ. (Div. 1, May 26, 2009).

Court to review 10-year-old suicide ruling

In 1998 a woman was found shot to death in her bedroom closet and the coroner ruled it a suicide. But the woman's mother and the detective on the case thought it was a homicide. The sheriff closed the case. Now the mother is having the coroner's decision reviewed in Lewis County Superior Court. Local News | Court to review 10-year-old suicide ruling | Seattle Times Newspaper, April 20, 2009.

The Times article says that this is the first time the 1987 law allowing judicial review has been used. It's RCW 68.50.015

Immunity for determining cause and manner of death — Judicial review of determination.

A county coroner or county medical examiner or persons acting in that capacity shall be immune from civil liability for determining the cause and manner of death. The accuracy of the determinations is subject to judicial review.

[1987 c 263 § 1.]

In order to get to this point -- having the superior court act -- the mother had get a ruling from the Court of Appeals, finding, among other things, that the statute of limitations had been tolled. Thompson v. Wilson, 142 Wash.App. 803, 175 P.3d 1149, Findlaw (Wash. App. (Div. 2) 2008).

Right to Counsel for Kids in Truancy Hearings

uvenile students accused of chronically cutting classes in public schools are entitled to a lawyer in their first court hearing, a three-judge panel of the Washington state Court of Appeals ruled Monday.

Reversing a King County Superior Court ruling and an earlier Court of Appeals finding that was made on different issues, the panel found that denying a juvenile the right to a lawyer from the outset violated constitutional requirements.

Truants can have lawyer, state rules, The Olympian, Jan. 13, 2009.

The case is Bellevue School Dist. v. E.S., No. 60528-3-I, (Wash. App. Div. I Jan. 12, 2009), available here.

A legislative committee held a hearing on the state's truancy efforts Jan. 16. Some legislators are considering a bill to respond to the ruling.
Lawmakers concerned over lawyer rule in truancy case, Olympian, Jan. 17, 2009.

The hearing was before the Senate Human Services & Corrections Comm. The video is on TVW. I haven't found any bills.

Editorial,
Court ruling may help get truants on track, Jan. 23, 2009.

Judge Orders DSHS to Fix Foster System

Yesterday Judge Charles R. Snyder (Whatcom County Superior Court) ordered the state Dept. of Social and Health Services to take action within 30 days on a list of changes it agreed to in a settlement in 2004. Maureen O'Hagan, Judge demands state keep foster-care promises, Seattle Times, July 1, 2008.

The ruling came a decade into what's known as the Braam case, named for the lead plaintiff, Jessica Braam, who had been bounced through 34 foster-care placements by the time she was 12 years old. Her case came to be seen as emblematic of problems that plagued the foster-care system. At any one time, about 10,000 Washington children are in foster care.

Attorneys for the children, led by Casey Trupin, a lawyer for Columbia Legal Services, and Tim Farris, a personal-injury lawyer from Bellingham, had argued that Jessica — and thousands like her — had been harmed by the state's broken system. Farris, for example, has represented numerous children who have been sexually or physically abused while in foster care.

After years of wrangling, the Braam case was settled in 2004. The state agreed to a timetable to meet certain measurable goals, such as reducing the number of children who bounce through placements. In addition, it created a panel to track the agency's progress.

The panel has repeatedly found that the state has fallen short. But because the panel has no enforcement authority, there were no real consequences. Monday marked the first time that the plaintiffs had thrown up their hands and taken the state back to court.

"If this isn't a stalemate, I don't know what is," Trupin argued in court.

For lots more information about the case, see BraamKids. This site, created by the plaintiffs, has background on the case, information about the oversight panel, the settlement agreement, and more. The Washington Supreme Court opinion in the case is Braam ex rel. Braam v. State, 150 Wash.2d 689, 81 P.3d 851, Westlaw link PLOL link (free registration required) (Dec. 18, 2003) (Wash., 2003)

Casey Trupin is a UW alum and a member of the PILA Hall of Fame.

Wash. S. Ct. Excludes Evidence from Pat-Down

The state Supreme Court has thrown out the 2005 methamphetamine conviction of an Olympia man, ruling that police had no right to frisk him just because he was apparently intoxicated and acting nervous in a public building.

The unanimous court overturned a decision by a Thurston County judge and the state Court of Appeals, both of which had found Lt. Don Stevens of the Tumwater Police Department justified in patting down Michael Setterstrom for weapons in the lobby of the Department of Social and Health Services (DSHS) building.

Court: Police pat-down was not justified | Seattle Times Newspaper, May 23, 2008.

The case is State v. Setterstrom, No. 79690-4, Wa Courts opinion (May 22, 2008) (J.M. Johnson, J.).

Thumbs Up for Procedural Safeguards

The Seattle Times reprints an editorial from the Spokesman Review applauding the state Supreme Court for a ruling that reversed a drug conviction because of procedural issues.

A cynic will call procedural errors technicalities. A civil libertarian will exalt them as bedrock constitutional protections.

They're both right.

Opinion | Editorial views from across the state | Seattle Times Newspaper, May 23, 2008.

The case in question was State v. Montgomery, No. 79564-9 Wa Courts majority (Chambers, J.), concurrence (Madsen, J.), concurrence (J.M. Johnson, J.) (May 15, 2008). The majority summarizes:

Virgil Montgomery challenges both his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine and his standard range 51-month sentence. Among other arguments, Montgomery asserts his trial was tainted by improper opinion testimony, an improper missing witness instruction, and improper argument about missing potential defense witnesses. We agree with Montgomery that the State's opinion testimony was improper, as was the missing witness argument and instruction. Although we find some of the error harmless, we agree that Montgomery was denied a fair trial. We reverse his conviction, and remand for a new trial.

Spitzer on Constitutional Division of Powers

Hugh Spitzer has a piece in today's Crosscut using constitutional fundamentals -- back to the 18th century. Hugh Spitzer, Power to the people! It's in the constitution, Crosscut, April 17, 2008.

He critiques Justice Sanders's concurrence in Washington Farm Bureau Federation v. State of Washington, 162 Wn.2d 284 (2007) (the case about whether the legislature could change the spending limits defined by Initiative 601). Legalwa.org links: majority (Fairhurst, J.), concurrence (Chambers, J.), concurrence (Alexander, C.J.), concurrence (J.M. Johnson, J.), concurrence (Sanders, J.).

(Hugh Spitzer is an affiliate professor at the UW as well as a partner at Foster Pepper.)

Juveniles charged with violent crime have no right to a jury trial, state Supreme Court rules

Juveniles charged with violent crime have no right to a jury trial, state Supreme Court rules, Seattle Times, March 20, 2008. The case is State v. Chavez, No. 79265-8, Wash. Courts website majority (C. Johnson, J.), dissent (Madsen, J.) (March 20, 2008).

Justices toss out rape conviction

Justices toss out rape conviction, Seattle Times, March 14, 2008:

A Lynnwood man's conviction for third-degree child rape has been overturned by the state Supreme Court, which ruled that prosecutors were wrong to tell jurors his refusal to discuss the case with police implied guilt.

During his 2004 trial, Justin Burke testified he believed the girl was 16 — the age of consent — when they had consensual sex at a party in 2003. But Snohomish County prosecutors implied to jurors that if Burke had truly believed that, he would have told his side of the story to police during his initial interview.

The jury later found Burke guilty of third-degree child rape and he was sentenced to 13 months in prison.

A sharply divided Supreme Court, in a 5-4 ruling issued Thursday, agreed with Burke's appeal attorneys who argued it was unfair and unconstitutional to use his silence against him.

State v. Burke, No. 78528-7, majority (Chambers, J.), dissent (Madsen, J.).

WA high court says random school drug testing unconstitutional

WA high court says random school drug testing unconstitutional, Seattle P-I, March 14, 2008:

A fractured state Supreme Court has ruled that random drug testing of student athletes is unconstitutional, finding that each has "a genuine and fundamental privacy interest in controlling his or her own bodily functions."

The court ruled unanimously Thursday in favor of parents and students in the lower Columbia River town of Cathlamet who opposed the tiny Wahkiakum School District's policy of random urine tests of middle school and high school student athletes, but some justices said random tests could be justified under different circumstances.

York v. Wahkiakum School District No. 200, No. 78946-1, Washington Courts website: majority (Sanders, J.), concurrence (Madsen, J.), concurrence (Chambers, J.), concurrence (J.M. Johnson, J.) (March 13, 2008).

The ACLU of Washington represented the plaintiff students and parents. See the ACLU's press release.

Photo: The Wahkiakum Mules basketball team, which took 4th place in the 2008 WIAA 2B Boys State Basketball Championship. These boys were not plaintiffs. The students in the suit participated in sports at Wahkiakum in 1999-2000 and 2000-2001. But I wanted to show the face of student athletics. Source: welcometowahkiakum.com.

Arbitration "the Windermere Way"

Even though "strong public policy favors arbitration," courts won't always enforce the arbitration agreements employers have employees sign. One exception? When Windermere's system has the employer pick three arbitrators and

All potential arbitration panelists must be members of the Windermere "family" -- owners, brokers, managers, and sales associates affiliated with other Windermere franchisees.

and

Disputes, such as those concerning which agent receives a commission, must be resolved according to the "Windermere Way."

On the facts, the trial court and the Court of Appeals concluded that the process did not* "satisfy the neutrality requirements of the arbitration statute." Rodriguez v. Windermere Real Estate/Wall Street, Inc., 175 P.3d 604, 27 IER Cases 190, Findlaw (Div. 1, Jan. 28, 2008)(Applewick, C.J.).


Thanks: Rod Stephens, Employment Advisory.

* March 10: Thanks to reader Manny Jacobowitz who pointed out that I'd left out these critical words in my original post.

Stay Denied in Pharmacy Plan B Case

Druggists can deny Plan B, judge rules:

Pharmacies and pharmacists with religious or moral objections to 'Plan B' emergency contraception may continue to refuse to dispense it until a lawsuit is settled, a federal judge ruled Friday.

The state had asked Judge Ronald Leighton of the U.S. District Court to reinstate rules requiring pharmacists and pharmacies to dispense all legal medications, pending outcome of an appeal. Last year, Leighton suspended the rules as they pertain to Plan B, the so-called 'morning-after pill,' by granting an injunction.

See also Judge again rules druggists can deny morning-after pill, Seattle P-I, Feb. 15, 2008.

A little chronology:

• June 2006. The state Board of Pharmacy announced it would issue a rule allowing pharmacists to refuse to dispense Plan B, an emergency contraceptive, when it was prescribed. Northwest Women's Law Center press release (links to proposed rules). Many people opposed the draft rules, including the governor. See Statement from Governor Gregoire on Pharmacy Board Rules, June 1, 2006, and Governor Gregoire Proposes New Rule to Washington Pharmacy Board, Aug. 29, 2006. and the Board adopted new draft rules Aug. 31.

• July 2007. The state Board of Pharmacy issues rules saying that pharmacists have to fill all lawfully prescribed drugs and devices. See WAC 246-869-010, Pharmacies' Responsibilites, and WAC 246-863-095, Pharmacist's professional responsibilities. A letter sent from the Board of Pharmacy is here.


• Nov. 2007. Judge Ronald B. Leighton grants an injunction to pharmacists who challenged the rule. The pharmacists said it forced them to violate their religious principles. Judge: Druggists may withhold "morning-after" pill, Seattle Times, Nov. 9, 2007. The opinion, Stormans Inc. v. Selecky, No. C07-5374RBL (W.D. Wash. Nov. 8, 2007), is here. ACLU release, Nov. 8.


• Dec. 2007. Intervenors -- 7 citizens represented by the Northwest Women's Law Center, the ACLU of Washington, and Planned Parenthood of Western Washington -- announced they were appealing the injunction. Press release, Dec. 10, 2007.


• Feb. 2008. Judge Leighton denies the request by the State Board of Health and the Board of Pharmacy to stay the injunction -- that is, let the regulation stand -- while the appeal to the Ninth Circuit is pending.


• Feb. 29 is deadline for filing the appeal.


• Oct. 2008 is when trial is scheduled.

Photo: Dr. R.V. Toker prepares prescription in U.S. Coal and Coke Co. clinic, Gary Mines, McDowell County, WV, 08/16/1946. National Archives, ARC Identifier: 540833.