Last Friday, the office of Washington’s Secretary of State certified a voter-generated petition that called for the legalization of marijuana. The measure, which is known as Initiative 502, would allow residents 21 years and older to purchase marijuana at certain retailers. The privately-owned and operated stores would sell only marijuana, and they (along with production sites) would all be regulated by the state’s Liquor Control Board. Marijuana sales would be subject to an excise tax, 81% of which would go toward research, prevention, education, and health care.  Backers of the Initiative suggest that the law would generate more than 200 million dollars a year for the state.

Marijuana Tax Earmarks

Because of its certification, Initiative 502 must now be taken up by the Washington legislature this year. If lawmakers reject the measure, then it will go before the voters in the November election.

Many of the state’s politicians appear to be taking a softer stance that the federal government’s zero-tolerance approach. On Monday, 42 Washington lawmakers sent a letter to the federal Drug Enforcement Administration asking that marijuana be reclassified as a Schedule II drug, which would allow doctors to prescribe it and pharmacists to distribute it. Currently, marijuana is a Schedule I drug, which makes it illegal for widespread use. Washington residents approved medical marijuana legislation in 1998, but that law only allows doctors to recommend (not prescribe) the drug for treatment of certain ailments.

Will 2012 become a watershed year in the history of marijuana in Washington?

GPS Tracking Devices

Law enforcement science is advancing at an incredibly fast rate. But sometimes, the changes in the laws themselves aren’t keeping up with the rapid technological progress. That’s why we sometimes need the courts to intervene.

On Monday, the U.S. Supreme Court issued a decision in a case surrounding the tracking of suspects using global positioning systems. It involved the federal authorities surreptitiously attaching a GPS device to the exterior of a vehicle that was being driven by a suspected drug kingpin in the District of Columbia. Antoine Jones was convicted on drug trafficking charges in part due to the evidence obtained by authorities from the GPS device.

The high court ruled unanimously that law enforcement agents must obtain a valid court-issued warrant before attaching such a device to a suspect’s vehicle (which the agents pursuing Jones did not do). The opinion stated that failing to get a warrant before planting a GPS device violates an individual’s Fourth Amendment rights against unreasonable search and seizure.

However, the ruling did not clarify the court’s overall position on GPS surveillance. Left unanswered were questions about the widespread use of current GPS technology (like what is available in most cell phones, many automobiles, and some computers) to monitor suspects’ whereabouts and movements. Some observers were hoping that the Supreme Court would even provide guidelines as to the legality of using traffic cameras, satellites, and web monitoring software to track people who are suspected of engaging in criminal activity.

However, the high court’s ruling in United States vs. Jones remained limited to practices involving an externally-mounted device which was attached to a citizen’s vehicle in a public place. Therefore, the legality of authorities using of what some would call “Big Brother” style monitoring tactics remains unclear.

Getting mocked by police officers who are supposed to be “helping” you.

That’s what happened to a West Seattle man back on October 24. Tim Nelson was jogging on the West Seattle low bridge when he was struck by a semi. Emergency responders arrived on the scene to take care of him and control traffic flow. But one of the Seattle Police Department’s cars recorded some disturbing audio.

Nelson hired an attorney to pursue a personal injury lawsuit case, and in the course of the lawyer’s investigation, a dashcam video from an SPD vehicle was uncovered. On the tape, officers were heard making fun of Nelson, noting that he was tossed into the air and landed on his head. One officer opines, “That’s why you drive a car!” while the other responds, “Don’t try to jog to work,” and then uses an expletive to describe Nelson. (Later on the video, two officers also appear to mock the accent of the truck driver involved.)

Nelson noted that it was bad enough that SPD officers made light of his situation as he lay near death on the street. But what’s even more upsetting is that Nelson says he was obeying the advice of state Department of Transportation officials, who urged commuters to commute to work on foot, via bike, or on a ferry to avoid traffic congestion on the bridge as part of the ongoing construction closure of the Alaskan Way Viaduct.

SPD isn’t commenting on Nelson’s allegations. Nelson says he isn’t seeking money – only an apology from the officers involved and/or the city of Seattle. But given the bad publicity the police force is receiving from the recent federal investigation into its excessive force practices, the idea that SPD officers treat injured civilians with scorn and ridicule will not help the department’s standing in the community.

Of course, in order to apply this particular aggravating circumstance, it must be proven in court that an individual was in fact released from jail or prison shortly before a crime was committed. There are many means by which this aggravating circumstance can be proven – but one way which is not acceptable under the law is by using hearsay evidence. The term hearsay is loosely defined as evidence which is not substantiated by objective documentation or statements made in court.

This issue was addressed in a Washington Supreme Court decision released on Friday. In State v. Griffin, a defendant was convicted in a bench trial of perpetrating a residential burglary in October of 2008. However, the prosecution tried to introduce the aggravating circumstance using only the testimony of a sergeant in the Grays Harbor County Sheriff’s Department. At sentencing, the defense attorney objected to the sergeant’s testimony, claiming that it was hearsay evidence. But the objection was overruled, and the defendant eventually received a 30-month sentence of confinement based on the aggravating circumstance (the standard sentence for this crime is between 15 and 20 months).

The defendant appealed the sentence to a county superior court. That court ruled that the evidence in question was indeed hearsay; but the court allowed the sentence to stand, saying that hearsay rules didn’t apply to that particular type of post-verdict sentencing. The superior court’s decision was appealed to the state supreme court, who disagreed with the lower court’s assertion that the hearsay evidence was admissible. The high court reversed the decision and sent the case back to the original court for re-sentencing.

Rule of Griffin  – Hearsay is not allowed to prove aggravating circumstances at post-trial sentencing.

State of Washington v. James L. Griffin, Washington Supreme Court, No. 84554-9, January 5, 2012

Blair Russ

Just last month, Division One of the Court of Appeals curbed the “manifest injustice” doctrine by its decision in State v. Hayes. The manifest injustice doctrine is the quintessential Constitutional life ring for the accused. This doctrine allows the appellate Court to review unchallenged issues at trial where the unchallenged issue is both obvious and based on our State or Federal Constitutions. This common sense rule precludes the government from trampling on the Constitutional rights of those helpless defendants who have retained counsel unfamiliar with basic Constitutional Law. However, this doctrine is not applied where counsel clearly recognizes the Constitutional issue, but consciously declines to assert the client’s Constitutional rights for tactical or strategic reasons.

State v. Hayes involved the use of hearsay and the Confrontation Clause. Hayes’ girlfriend accused him of beating her up and strangling her outside a club. She reported this allegation to the police and then subsequently to various medical personal who treated her injuries. Hardly uncommon to the domestic violence world, Hayes’ girlfriend later told the prosecutor that she made the story up to get back at Hayes for an incident of infidelity. Hayes’ girlfriend did not come to trial and the prosecution tried to offer her statements made the treatment providers. Hayes’ trial counsel did not object to this testimony; and did not raise Hayes’ Sixth Amendment right to confront his accuser.

Following his conviction, Hayes’ appellate attorney argued that Hayes was denied an opportunity to confront his girlfriend, despite her statements being used as evidence against him. Although this argument was not raised at the trial level, the Court of Appeals applied the manifest injustice doctrine reasoning that the basis for the appropriate objection was significant and implicated an obvious Constitutional principle. However, the Court of Appeals declined to apply the doctrine because Hayes’ counsel both recognized and consciously decided not to raise the issue. The Court of Appeals reasoned that Hayes gained a tactical advantage from permitting the hearsay statements of medical providers, as he was able to elicit inconsistencies in her accounts given to various medical personal and a police officer. Therefore, the Court did not review the issue and Hayes’ conviction was affirmed.

State of Washington v. Cordarrel Robert-Louis Hayes, Court of Appeals of Washington, Division I,  No. 65622-8-I, December 19, 2011

However, those rules were not enough to prevent the theft of an Auburn Police officer’s uniform, badge, and personal weapon. On Wednesday, December 28, the officer left a gym bag containing those items in his personal vehicle in downtown Tacoma. A thief then smashed the window of the vehicle and stole the bag. Later in the week, authorities arrested a 34-year old man and charged him with the theft.

Here’s the problem: all of the stolen items are still missing (it’s unclear how police determined that the suspect was responsible for the theft). So you’d think that the officer to whom the gym bag belonged would have to answer for his carelessness, right?

Apparently not. According to Auburn Police guidelines, the officer was in compliance with departmental policies because his vehicle was locked and the bag was out of view. And although there are strict policies against leaving a service firearm inside a personal vehicle, the officer will not be disciplined because it was his personal weapon that was stolen.

So, to sum up: an APD uniform and badge were stolen from an officer’s private vehicle along with his personal firearm – and police are treating it just like a garden variety property theft case. Does that sound right to you?

As a result, the burden of crime prevention often falls on ordinary citizens. One man tried to stop a criminal from committing theft. But instead of assistance and support from police, he may soon find himself charged with a crime.

Back in July, a 67-year old man saw a 23-year old man trying to steal an outboard motor from the elderly man’s boat, which was parked in front of his house. So the property owner confronted the would-be thief and the two exchanged punches. The homeowner then wrapped his arm around the younger man’s neck in an attempt to subdue him for police. The 23-year old was unresponsive when police arrived, and he was pronounced dead a short time later.

This week, Shonomish County Sheriff’s Office detectives forwarded the case to county prosecutors with a recommendation that the homeowner be charged with manslaughter. County prosecutors said that a decision on whether to file charges against the older man will be made sometime next week.

The 67-year old man, who has arthritis and a pair of artificial hips, stated back in July that he was scared for his safety and was worried about what would happen to him if he released his grip on the thief. The homeowner visited a hospital after the incident, and suffered a swollen and bruised lip as a result of the younger man’s blows.

If the 67-year old man is charged and/or convicted of manslaughter as the result of trying to protect his property, it could send a message to county residents that they should stand by and permit criminals to commit illegal acts – or else risk becoming criminals themselves.

Today we want to highlight one issue of the case – the Confrontation Clause issue, which was triggered when the trial court admitted statements of the victim to medical personnel.  Mr. Hayes attorney did not object when the statements were admitted without her testifying.  The Court identified the admission of the evidence without objection to be manifest, which is required to preserve constitutional issues on appeal.  In other words the admission of the evidence had practical and identifiable consequences.  All should be well then for any defendant on appeal except in this case the Court ruled that his counsel deliberately waived the issue as a tactic at trial – a complicated ruling considering the issues was raised prior to trial.  Many trial attorneys would consider raising an issue pretrial to preserve the issue on appeal.

Rule of Hayes – Object, object, object.  Raising an issue pretrial may not be enough to preserve the issue on appeal.

State of Washington v. Cordarrel Robert-Louis Hayes, Court of Appeals of Washington, Division I,  No. 65622-8-I, December 19, 2011

The Feds Report on Seattle Police

People in Seattle are still talking about the report issued last week by the Department of Justice about the Seattle Police Department. The DOJ’s findings of its investigation into SPD practices revealed what the feds called a pattern and practice of inappropriate use of force by many SPD officers.

Now that we’ve had time for the rhetoric to die down a bit and for people to examine the DOJ’s findings, we can more clearly determine some of the ramifications of this report. Let’s look at one of the charges in the report:

Out of the more than 1,800 (estimated) Seattle Police Department personnel, only 44 of them used force in their duties more than once during 2010. However, those incidents accounted for 30% of all of the recorded instances of force during the year.

In other words, about 2.5% of the SPD personnel accounted for 3 out of every 10 cases where force was used. Does that sound disproportionate to you? One thing’s for certain: if my office is defending a citizen who was forcefully arrested by one of these 44 officers, I would certainly bring this statistic to the attention of a jury.

The DOJ report also revealed that over half of the instances where it was determined that unnecessary or excessive force was used by SPD involved minority suspects or individuals.

So if a defendant is a member of a minority ethnicity and he or she is claiming that too much force was used during the arrest, wouldn’t a jury be more inclined to agree in light of this report?

Here’s the bottom line: the DOJ report undermines the trust that Seattle residents have for their police department. This lack of trust may find its way into jury panels who hear criminal cases (because after all, jurors are citizens of a given area). As a result, when police testify as to the appropriateness of their actions involving use of force or anything else, the jurors may not be as inclined to believe them as they would before this DOJ report was released.

On one hand, that’s a good development for people who are wrongly accused of a crime or inappropriately treated by police. But then again, this distrust could affect cases of people who actually do commit crimes and were appropriately arrested by SPD – which means that criminals may get away with their crimes because jurors don’t trust the police.