Don't Talk To Anyone About Your Case--Not Even Yourself!

March 25, 2015,

by Craig Platt

I am sure you can guess what this will be about. Robert Durst. Good grief. Seems that you can't even mutter to yourself these days without incrementing yourself. Of course the fact that Durst was stupid enough (or egotistical enough) to agree to have HBO follow him around with a camera asking about all the people he killed didn't help. You may think you are different as you are not in the public eye. But, you'd be wrong. Dead wrong.

The fact is that privacy is a thing of the past. Just ask another person who openly "outed" himself and actually committed several federal crimes live on camera: Edward Snowden. But Snowden is no dummy. And contrary to what many may think (including me before I saw him in Citizen Four) he is not just an ego freak either. Watching him in action in that excellent documentary I learned a lot. I went from thinking he was largely in it for the attention to realizing that he is actually a modern day hero. A Robinhood, tattling on the powerful to save the unsuspecting masses, who are totally unaware of how much what they do and say on line can be (and is) monitored by strangers.

Which brings me to all of the potential future defendants out there. As I used to like to say to my kids when they were young, drawing upon an old classic movie line they never knew, "You know how to remain silent don't you? Just put your lips together and....." Nothing. The only way to remain silent these days is to keep your thoughts to yourself. Emails, texts, Facebook and Instagram, even blog posts like this, live FOREVER. As we criminal lawyer types like to say, "E is for evidence." So think twice, even three times, before hitting send on an email - or be prepared to answer for anything that you put out there.

The same goes for surveillance. Video is everywhere these days. In London, they say every square inch is covered by some form of closed circuit TV.

Ask Snowden. Even if he was not being taped as he arguably committed several federal offenses live on camera while filming Citizen Four, they eventually would have found him. Even with his uber encrypted computer skills it was just a matter of time. Too bad. He is a lone voice in the wilderness, trying to alert us all to government overreaching. No matter what your politics are, if you believe in privacy and freedom of expression, you have to be concerned.

You see, there is this little thing called the Fourth Amendment to the Constitution of the United States of America. It goes something like this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Government is not supposed to be meddling in your personal affairs without a good reason that has been reviewed by a judge. As in, 'neutral and detached magistrate', not some hack pretending to scrutinize overbroad requests and then rubberstamping whatever "The Man" asks for. It is just not supposed to work that way.

But when the Government gets a helping hand from the people that they are seeking to get information from, everything turns upside down. Admissibility is not likely a problem in these cases. Which brings us back to Durst.

I watched the HBO Show, The Jinx (during which Durst supposedly confessed) with great interest. I had seen two fairly intelligent lawyers, Jeffrey Toobin and Mark O'Mara opining on CNN about this alleged "confession".

I have to say that I am disappointed in both of them. Granted, the questions on the table had to do with the admissibility of the statements. Since statements are normally deemed inadmissible only when the police forget to "Mirandize" suspects (i.e. forget to warn them about their right to remain silent, etc.) it was a bit of a no brainer that statements made to news reporters were not being obtained via police misconduct (although there could still be some privacy protections that might apply, that is not the focus here).

But, the elephant in the room wasn't admissibility. It was whether these statements are a confession at all! Did they actually listen to what Durst was saying? I kinda doubt it. That's because it sounded more like some crazy old guy mumbling and talking to himself than someone confessing to murder. If they can't see that they need to go back to law school. It would be pretty easy to see these random comments as Durst simply trying to figure out what the reporters were asking him, by repeating what he thought they were getting at.

See for yourself. Here is what he actually said:

"There it is. You're caught. You're right of course. But you can't imagine. Arrest him. I don't know what's in the house. Oh, I want this. What a disaster. He was right. I was wrong. And the burping. I'm having difficulty with the question. What the hell did I do? Killed them all, of course......."

These statements are punctuated by loud burping nosies and a toilet flushing. The tone of his voice is odd. After the last statement the room dramatically goes dark, with no recording of what he said next. For all we know, he said, "What a bunch of malarkey!" Selective editing can be deceptive and I simply don't trust TV people, based on my own experience working with some of them (e.g. Dateline).

I once represented an elderly woman accused of First Degree Murder. It was a very complicated case. The prosecutor thought it was a slam dunk because he had two very detailed taped statements of my client confessing to murder, both of which the jury heard. However, we looked at the forensics and were able to show that she was falsely confessing in order to protect her grandson, whom she mistakenly believed had committed the murder (our defense was that it was an accident, and that no one had committed murder).

In Closing Argument I played the confession tape over and over for the jury, explaining to them how her tone of voice sounded completely fake, the details too detailed and not really consistent with the forensic evidence, and explained why she would lie to save an innocent grandson she mistakenly thought was guilty of murder. It worked. Not Guilty.

The same applies here. If you really listen to what Durst said and how he said it it does not sound like a confession at all. But, unfortunately it makes for such great TV viewing that this obvious explanation gets completely lost in the mix.

This is why you need to simply not talk about pending criminal cases, especially if you might be a suspect. The media and law enforcement will immediately seize the opportunity to use whatever you say to prove you guilty... even when you aren't.

So, take my advice. Don't talk about crimes under investigation, even to yourself, if there is any possibility someone will hear or read your words. Remain silent, and ask for a lawyer the minute anyone questions you about any potential crime, big or small. You don't want to wind up like Durst.

The Police Knocked On My Door. What Are My Rights?

March 16, 2015,

by Brent Thompson

As mentioned previous posts, any warrantless search or seizure is per se unlawful absent the applicability of a jealously guarded exception to the warrant requirement.

One exception is consent. In State v. Ferrier, 136 Wn.2d 103 (1998), the Washington Supreme Court held that, before entering a citizen's home, Article I, section 7 of the Washington state constitution requires that police officers:

  1. Ask the citizen for consent

  2. Inform the citizen consent can be revoked at any time

  3. Notify the citizen can limit the scope of the consent (i.e. limit the extent of the officer's entry).

These warnings are known commonly as "Ferrier Warnings." Such warnings must be given by officers in Washington state in order for an entry and subsequent search to be considered lawful. Evidence must be suppressed pursuant to the exclusionary rule and "fruit of the poisonous tree" doctrine if this rule is violated.

On March 3, 2015, in State v. Budd, Division Three of the Washington State Court of Appeals issued an opinion that revisited Ferrier. The Court of Appeals directly addressed the issue of whether all Ferrier warnings must be given before entering the home or whether the warnings may be given after the officer enters the home but before searching it. The Court of Appeals also addressed the issue of whether each Ferrier warning must be given before entering the home.

In Budd, a "knock and talk" was performed at a resident's home. A "knock and talk" is a police procedure where officers approach a private residence, knock on the door, and asks to come in and "take a look around." This is done when the officers suspect criminal activity, but do not have probable cause for a warrant. Oftentimes in this context the resident does not understand they have a right to refuse entry. Other times residents may feel pressured to permit the officers to enter--the resident may feel a need to be polite or may feel that refusing entry may indicate guilty knowledge or that something is being hidden.

Three officers went to the resident's door in Budd, but the resident was not home at first. His girlfriend answered the door and explained the he was at work. 15 minutes later the resident arrived. The Detective identified herself and other officers and told the resident they received a tip that indicated illegal items were located inside his home and they were concerned about the safety of another inside. The Detective asked for consent to enter the home and search a computer, and the resident asked the detective if she had a warrant.

The detective replied that she would apply for a warrant if he did not consent. The resident said that he did not want his computer viewed in front of his girlfriend, then allowed the officers to enter his home for the purpose of searching his computer. The officers reviewed a written consent form containing Ferrier warnings after entering the home but before searching the resident's computer. The resident then signed the document after acknowledging he understood the warnings and was giving consent. The officers seized the resident's computer and found bad stuff on it that led to a felony conviction.

The Court of Appeals held that law enforcement officers must deliver EACH Ferrier Warning BEFORE entering a residence. The court concluded that the Detective could not merely tell the resident that he had a right to refuse the search before entering.

It also concluded that the detective could not wait to inform the resident of other Ferrier warnings after entering the home. All Ferrier warnings must be given before police enter the home. Because the officers failed to do this in Budd, the Court sent the case back to the trial court with directions to dismiss the charges against the resident. The court looked to the plain directive given by the Supreme Court of Washington in Ferrier:

[W]hen police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.

The court also reasoned that the law draws a firm line at the entrance to the home and the home is a highly private place that receives heightened constitutional protection. It also recognized that any "knock and talk" is inherently coercive to some degree. The court also even pointed out that RCW 10.79.040 creates the misdemeanor of a law enforcement officer entering and searching a private dwelling without the authority of a search warrant.

However, the court did explain that Ferrier warnings are not required in all circumstances such as circumstances involving an emergency. The Ferrier warning requirement generally applies in the context of police use of a "knock and talk."

In short, citizens have a right to refuse consent when officers request entry into their home. In Washington, officers must inform the resident of each and every Ferrier warning prior to entry in order for the entry to be deemed lawful. If this is not done, all evidence derived thereafter ("poisonous fruits") must be suppressed.

Do Crazy People "Get Away With Murder"?

February 26, 2015,

by Craig Platt

We all know the way it works. Some nut job goes out and whacks some innocent person for no apparent reason. Sure enough. Out come the legal guns to blast out defenses like Not Guilty by Reason of Insanity or Diminished Capacity. Next thing you know they walk out the door free people.

Not really. Not in real life.

In reality mental illness is a very difficult concept to explain to jurors. Most people have trouble understanding how it is that crazy people can get away with murder. Literally. But, like everything else in criminal law, it's complicated.

Take the case of Lacy Spears, a young mother accused of killing her son by feeding him toxic amounts of salt (of all things) through a feeding tube. She allegedly did this while he was hospitalized for a chronic illness that it seems Ms. Spears induced. The details about exactly what she did are unclear.

What is clear is that there is something wrong with Ms. Spears. I say that not only because it looks like she forced salt down her baby's throat to kill him and then calmly stood by and watched him suffer; I also say that because she tirelessly publicized his plight on social media. She blogged and tweeted away even as he went through ongoing pain and suffering and intense illness to the point of requiring hospitalization. I mean who does that? Maybe people with mental health issues.

Therein lies the question: should someone who is somehow not able to control their actions be able to escape punishment? Should that be an excuse? What about a vet from Afghanistan who saw his best three friends blown into a pink mist in front of his eyes, then comes home and has a flashback and suddenly finds himself pinning down his brother with a knife in his hand? Not knowing where he is or how he got there? What about someone who stands on street corners arguing loudly with invisible people using nonsensical words who walks into Safeway and forgets to pay for his Orange Crush?

You see, it gets complicated. But a mother who salts her beautiful baby boy to death? Something must be wrong with her. The question is what is it?


In this case it is called Munchausen by Proxy. It is a disease of the mind that makes otherwise seemingly loving, caring people secretly harm those they are supposed to be caring for. Typically it is seen as a bizarre way to get attention. In Ms. Spears' case she was saturating social media with tales of her sick child, basking in the supportive feedback that generated... while secretly making her child sick in order to keep the attention coming.

That has to be crazy.

Closing arguments begin today so we should know by later today or tomorrow what the jury thinks. Unfortunately it seems the defense did not call any expert witnesses to support a theory of insanity so the jury may have no reasonable alternative other than to convict.


What about the American Sniper case?

This is a classic case where the Defendant, Eddie Ray Routh, was clearly mentally ill, with extensive prior hospitalizations for schizophrenia and related mental disorders. In fact this crime apparently happened because the victims, Chris Kyle and Chad Littlefield, were taking Routh out to a shooting range in a tragic attempt to help him with his PTSD. Littlefield went along because he was concerned for his friend, Kyle, because Routh was acting so crazy. The two were even texting about how crazy Routh was in the vehicle as they drove to the range. Their silence as they drove and texted to each other about Routh so enraged him that he killed them both in cold blood.

However, the jury found that he did not meet the legal definition required in order to be found not guilty by reason of insanity. You see, it is not an easy thing to prove. At trial the Texas court applied the M'Naughten rule, which requires the jury to find that the defendant was not able to tell "right from wrong". In this case insanity would have been due to PTSD. Both Routh and Kyle were combat veterans and Routh had ongoing issues with PTSD.

There has been much talk regarding the high standard applied in Texas, known as the M'Naughten rule. The same standard is used in Washington. The defense is described by the pattern jury instructions used in our state (WPIC 20.01):

"Insanity existing at the time of the commission of the act charged is a defense. For a defendant to be found not guilty by reason of insanity you must find that, as a result of mental disease or defect, the defendant's mind was affected to such an extent that the defendant was unable to perceive the nature and quality of the acts with which the defendant is charged or was unable to tell right from wrong with reference to the particular acts with which the defendant is charged."

As a nationally known psychologist once described it to me in a murder case we were working on together, "You can be as crazy as a loon, standing on your desk screaming 'I am the Queen of Sheba!', but if you understand that what you are doing is wrong you are not legally insane."

With the American Sniper defendant, the police carefully framed their interview questions to include several leading questions to get him to say that he knew it was wrong to kill Kyle and Littlefield. Of course, in that context Routh may have felt he was making up for what he did, essentially apologizing to the police. In fact what he was doing was setting himself up to be held accountable since by admitting he knew it was wrong he put himself outside the definition of legally insane under M'Naughten.

Reasonable people can disagree about the insanity defense. What we can agree on is that it rarely works. In reality the reasonable jurors out there simply don't want to let guilty people get away with murder, no matter how crazy they are. They would consider it unreasonable to let them go free. Which brings us back to why it is so difficult to win a case based on the "not guilty by reason of insanity" defense.

DUI Field Sobriety Tests - Horizontal Gaze Nystagmus Testing (The "Eye Test") and its Limitations

February 18, 2015,


by Brent Thompson

There are three standardized tests all officers in Washington are trained to administer during DUI Detection.

When I was in my early twenties, my best friend drove me to a New Year's Eve party. He was the designated driver for the night. He drank one beer. The night was long. After the music stopped I hopped into my friend's car and we began to head home. As we drove down a long county road my friend was pulled over by a deputy sheriff.

I recall the sheriff approaching the car and asking my friend for his license and registration. All documents were produced without issue. The sheriff then asked him how much he had to drink. My friend was honest and replied, "I had one beer a long time ago." The officer asked him to step out of the car. That is when I saw him checking his eyes. The test took a little bit, but eventually the officer let my friend go on his way (unusual these days). I recall my buddy coming back into the car saying something along the lines of "I didn't have any problem with that test. It wasn't hard to follow his finger."

The test is called the "horizontal nystagmus test" or "HGN." Nystagmus is the involuntary jerking of the eye. The test is not intended to determine whether the driver can follow the stimulus (i.e. pen or pen light in most cases) as my friend thought. The officer looks for the involuntary jerking of the eye. This involuntary jerking can become evident after a person has consumed alcohol. That is, positional alcohol nystagmus (PAN) occurs when a foreign fluid, such as alcohol, alters the specific gravity of the blood in unequal concentrations in the blood and the vestibular system and causes it to respond to gravity in certain head positions--resulting in nystagmus.

Officers are trained to look for a total of six clues (three in each eye):

  1. Lack of smooth pursuit
  2. Distinct and sustained nystagmus at maximum deviation
  3. Onset of nystagmus prior to 45 degrees
Lack of smooth pursuit exists where the eye jerks noticeably as it moves side to side. Distinct and sustained nystagmus is present when the eye is moved as far to the side as possible and is kept at that position for four seconds and jerks distinctly in that position. Onset of nystagmus prior to 45 degrees occurs when the eye begins jerking prior to a 45 degree angle as it moves toward the side. The National Highway Traffic Administration claims its research shows that four or more clues has a correlation with a .10 blood alcohol concentration or more and that the test is accurate 77% of the time.

However, this research has not been peer reviewed.

In State v. Baity, the Washington Supreme Court analyzed HGN testing in the context of Drug Recognition Expert (DRE) protocol. It held that HGN testing is scientific in nature and is generally accepted in the relevant scientific communities (thereby passing the Frye test--a standard that must be passed for scientific evidence to be admissible).

However, the court placed limitations on the use of such evidence. The court stated "an officer may not testify in a fashion that cases an aura of scientific certainty...." The court also emphasized, "The officer also may not predict the specific level of drugs present in a suspect. The DRE officer, properly qualified, may express an opinion that a suspect's behavior and physical attributes are or are not consistent with the behavior and physical signs associated with certain categories of drugs."

More recently, in State v. Quaale, the Supreme court revisited HGN evidence in the context of DUI allegations involving alcohol. The court confirmed the limitations on HGN testing set forth in Baity apply equally in DUI investigations involving alcohol. It further confirmed that the officer cannot testify in a fashion that casts an aura of scientific certainty and may not predict a specific legal of alcohol. The officer may only express an opinion whether the suspect's behavior and physical attributes are or are not consistent with signs of alcohol consumption.

This means that the officer cannot claim a driver is "impaired" based on HGN testimony or claim there is "no doubt" the driver is "impaired."

In Quaale, a driver was supposedly speeding at 56mph in a 25mph. The cop activated his lights to try to pull the driver over, but the driver allegedly turned off his headlights and accelerated. Eventually, the driver lost control, overshot a corner, and skid into someone's yard - but the driver then regained control of his truck and continued to flee for several more blocks until finally pulling over. The officer smelled an odor of alcoholic beverages on the driver's breath and then performed an HGN test on the driver. No other field sobriety tests were performed. The driver was arrested and refused a breath test after receiving implied consent warnings at the station.

At Quaale's trial the tooper testified "there was no doubt he was impaired." Quaale was convicted of DUI. But the Washington Supreme Court reversed the conviction and remanded the case for a new trial. The Supreme Court reasoned that the HGH test "...cannot establish impairment by itself, and testimony to the contrary violates the limitations imposed by our decision in Baity."

Evolution of Search and Seizure Law Re: Blood Draws in the DUI Context (Part 3)

February 10, 2015,


By Brent Thompson

In Part 2 we discussed the constitutional problem concerning admission one's refusal to submit to a breath or blood test as substantive evidence of guilt. Unfortunately, it seems there is a lack of uniformity among trial courts and judges concerning this issue at this time. But Missouri v. McNeely has caused the law to evolve in other ways as well.

In late July 2014 the Court of Appeals of the State of Washington released a new opinion in State of Washington v. Martines. As discussed in Part 2, the court recognized that the extraction of blood is a search. But the court went a step further:

It concluded that the testing of the blood is a second search distinct from the blood draw because the purpose is to examine personal information in the blood.

The court held that the state cannot conduct blood tests on blood even lawfully drawn without first obtaining a warrant that authorizes (1) testing; and (2) specifies the type of evidence for which the sample may be tested.

In reaching this conclusion the court recognized that blood is different than other kinds of physical evidence (e.g. handwriting, fingerprints, etc.). It recognized that personal information contained in blood is hidden and highly sensitive. Testing of blood can reveal numerous things about an individual. This is not limited to evidence of intoxication, but also disease, paternity, pregnancy, and other genetic information such as ancestry. The court acknowledged that such things are "private medical facts" and that citizens should be entitled to hold this kind of information safe from governmental trespass.

Therefore, the court reaffirmed the warrant requirement--concluding that because blood testing is an independent search a warrant is required. Moreover, because a warrant is required two requirements must be met:

  • First, there must be probable cause.
  • Second, the warrant must have particularity in order to ensure that the scope of the search is limited to search of criminal evidence for which there is probable cause to search for as opposed to other information contained in the blood such as private medical facts.

The court explained for example, that where blood is lawfully drawn in the course of a drunk driving investigation, the state should not be able to use the sample to produce a DNA profile to add to government data banks without a further warrant (which presumably would require independent probable cause for the DNA).

After explaining these principles, the Court of Appeals went on to hold that the warrant obtained by the Trooper to seize Martines' blood did not contain language that authorized testing of the blood for evidence of alcohol and drug intoxication. The warrant did not authorize testing at all. It only permitted the extraction of blood.

Nevertheless, the blood was tested in a toxicology lab without any warrant that limited the officer's discretion in terms of what the blood court be tested for nor limited the blood analysis to evidence of alcohol or drug consumption. As a result, the court concluded the blood analysis was a warrantless search and presumed illegal, no exception to the warrant requirement applied, and the results of the blood draw (blood alcohol level of .121 and valium in blood stream) had to be suppressed.

Martines' felony DUI conviction was reversed.

Martines will likely usher in additional challenges to state action and new theories that may provide bases for more creative motions to suppress.

Evolution of Search and Seizure Law Re: Blood Draws in the DUI Context (Part 2)

February 4, 2015,


By Brent Thompson

In Part 1 we discussed how Missouri v. McNeely resolved the split of authorities among jurisdictions in the United States and tended to abrogate a good amount of prior Washington case law. McNeely held that the natural dissipation of alcohol in the bloodstream does not present an emergency in and of itself (i.e. a "per se exigency") relieving the officer of the need to get a warrant. Regardless of the natural dissipation of alcohol in the blood stream, police must obtain a warrant before the blood sample can be drawn without consent unless there are additional "special facts" (e.g. an accident) giving rise to an emergency where obtaining a warrant is truly impracticable.

The McNeely holding generated new debate concerning the admissibility of one's refusal to consent to a warrantless blood draw. Persons have a constitutional right to refuse warrantless searches and seizures. However, oftentimes prosecutors seek to offer one's refusal to submit to a breath or blood test as evidence of guilty knowledge. This creates the potential constitutional problem.

First, breath, blood, urine, and DNA cheek swab testing are searches and seizures. McNeely, 133 S.Ct. at 1558 (blood test implicates "most personal and deep-rooted expectations of privacy"); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-617, 109 S.Ct. 1402 (1989) (urine testing, blood testing, and breathalyzer testing that requires production of alveolar or "deep lung" breath are searches); Schmerber, 384 U.S. at 767 (blood test plainly constitutes search of a person); Judge, 100 Wash.2d at 711 ("We begin our analysis with the proposition that the taking of blood samples constitutes a "search and seizure" within the meaning of U.S. Const. amend. 4 and Const. art. 1, ยง7); Wetherell, 82 Wash.2d at 871("intrusion into his body to extract the blood for analysis amounted to an unlawful search and seizure prohibited by the fourth amendment..."); State v. Gauthier, 174 Wash.App. 257, 263, 298 P.3d 126 (2013) ("A blood test or cheek swab to procure DNA evidence constitutes a search and seizure under the Fourth Amendment and article I, section 7"); Baldwin, 109 Wash.App. at 523 ("The taking of a blood sample is a search and seizure within the meaning of the Fourth Amendment and article I, section 7...").

Second, individuals have a constitutional right to withhold consent to warrantless sampling of their breath, blood, urine, and DNA. See Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041 (1973); United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978); State v. Jones, 168 Wash.2d 713, 725, 230 P.3d 576 (2010) (prejudicial misconduct where prosecutor commented on Fourth Amendment right to refuse DNA swab sample); State v. Gauthier, 174 Wash.App. 257, 263, 298 P.3d 126 (Wash. Ct. App. 2013) (use of refusal to consent to warrantless search and seizure was manifest constitutional error).

Third, case law provides that assertion of the constitutional right to be free of a nonconsensual warrantless search or seizure is inadmissible as evidence of guilt. The United States Circuit Courts of Appeals "...that have directly addressed this question have unanimously held that a defendant's refusal to consent to a warrantless search may not be presented as evidence of guilt." United States v. Runyan, 290 F.3d 223, 249-251 (5th Cir. 2002); Gauthier, 174 Wash.App. at 265-266. This includes the Ninth Circuit. See Prescott, infra. Fifteen states have reached the same conclusion. Gauthier, 174 Wash.App. at 265; id. at 265 n. 2.

For example, in 1978, in United States v. Prescott, the Ninth Circuit held that a resident's refusal to permit a warrantless entry into her home was not admissible as evidence of guilt. United States v. Prescott, 581 F.2d 1343, 1346 (9th Cir. 1978); id. at 1350-1351. It explained a "passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing." Id. at 1351. It also concluded it was prejudicial error to permit the government to prove, as evidence of the offense charged, that Prescott declined to unlock her door when the officers did not have a warrant. Id. at 1350. The court reasoned "[o]ne cannot be penalized for passively asserting this right, regardless of one's motivation. Just as a criminal suspect may validly invoke his Fifth Amendment privilege in an effort to shield himself from criminal liability, so one may withhold consent to a warrantless search, even though one's purpose be to conceal evidence of wrongdoing." Id. at 1351 (internal citations omitted).

Prescott concerned the home. It is true heightened constitutional protection is afforded to the home. State v. Schroeder, 109 Wash.App. 30, 40-41, 32 P.3d 1022 (Wash Ct. App. 2001) (quoting State v. Johnson, 104 Wash.App. 409, 415, 16 P.3d 680 (Wash. Ct. App. 2001)). The law recognizes every man's house is his castle. Payton v. New York, 445 U.S. 573, 596, 100 S.Ct. 1371 (1980); id. at 596 n. 44; id. at 597 n. 45; id. at 598; id. at 604. But the human body is a temple. And the United States Supreme Court has made clear it can receive no less protection than the home. McNeely, 133 S.Ct. at 1558; Schmerber, 384 U.S. at 770. The concept that refusal to submit to a warrantless search and seizure has also applied in situations involving the human body.

For example, in 2013, in State v. Gauthier, Division One held that a prosecutor's use of a defendant's invocation of his constitutional right to refuse consent to a warrantless search as substantive evidence of his guilt was a manifest constitutional error. Gauthier, 174 Wash.App. at 267. Division One concluded the error deprived Gauthier of his right to invoke with impunity the protection of the Fourth Amendment and article I, section 7. Id. The court also reasoned that such evidence is ambiguous. Id. at 264-265. Although the facts of Gauthier concerned a cheek swab for DNA, its holding and rationale seem equally applicable to breath, blood, and urine testing.

Unfortunately, lower trial courts have differed on this issue. Some courts have suppressed refusals to submit to warrantless breath or blood tests. However, other courts continue to allowed refusals to be admitted despite apparent changes in the law in this area. This continues to be an evolving area of law.

If you are arrested for DUI remain silent when you are told you have the right to remain silent. Also make it very clear that you want to speak with an attorney. It is critical to speak with an attorney about your situation before making the decision whether to submit to a breath or blood test.

Domestic Violence, the NFL and Constitutional Rights in Criminal Cases

October 13, 2014,

If you are charged with a Domestic Violence crime [or DUI, Drug Offences, Shoplifting or Murder] whether you live in Seattle, Oak Harbor, Bellingham or Mt. Vernon, you are entitled to representation by a criminal defense attorney, to have a jury trial and cross examine witnesses, and, above all, to be presumed innocent.

It is with some confusion therefore that I have been reading about the reaction to various NFL players being accused of Domestic Violence, then basically tried and convicted in the media. Even Diane Feinstein has weighed in. It seems that if the evidence is "strong" then somehow the presumption of innocence disappears. Not so.

Some of my best victories at trial have been in cases where everyone said my client was guilty and we should just give up. One of my favorites was State v C.R. My client was charged with bringing twelve pounds of marijuana up from California to sell in Oak Harbor, back when that was a major felony. He was looking at serious time because of the quantity. The Whidbey News Times, that pathetic excuse for a newspaper the poor citizens of Oak Harbor are subjected to, had a banner headline when he was arrested: BIGGEST DRUG BUST IN THE HISTORY OF ISLAND COUNTY! It was followed with an article which was obviously an attempt to try and convict my client in 1000 words or less, describing how he was caught "red handed" on video, had confessed to two different Detectives and was clearly guilty. An interesting note on this headline is that it was wrong. We were currently representing a gentleman who had been caught with SIXTY POUNDS of pot in his backyard at the time. I think sixty is bigger than twelve but I guess the reporter couldn't count that "high". [Sorry, couldn't resist that.]

We went to trial. A few weeks before trial I held a meeting of my entire office, asking for input on trial strategy. One of my best young lawyers pulled me aside afterwards to let me know that sometimes it is ok to lose. I about fell over. I explained to her that I had no intention of losing and the fact that the evidence was overwhelming was not the issue. Giving my client the best defense I could was. So I did.

During trial the videotape loomed large. Funny thing was I actually watched that tape. All two hours of it. Unlike the idiots at the paper and, as it turns out, unlike the prosecutor who was trying the case. It showed two hours of my guy sitting in a car doing nothing. Granted, he had twelve pounds of mediocre Mexican shake in the trunk (another detail the paper got wrong, describing it as high grade Marijuana). However there was nothing showing that he knew it was in there or what his buddy was doing inside the motel room as he waited outside for him.

I found out the prosecutor had not bothered to watch the tape when I wound up being the one to introduce it into evidence at trial and HE objected! He said he had never bothered to watch it. So, in addition to stupid newspaper reporters I had a stupid lazy prosecutor on my hands. The fact that this guy was trying to send my client to prison without bothering to check out his own evidence enraged me. Which didn't help make his life any easier, believe me. I was annoyed.

Enter the so called "confessions". By now I had had it, but that is often the case when I do a trial. I can't help it when the Government is trying to lock up my client and can't be bothered to do their jobs properly, which, unfortunately is also often the case. Prosecutors get lazy shooting fish in barrels all day. I barraged the detectives with cross-examination. So forcefully that the court reporter got mad at me for messing up her attempt to write it all down. "You won't have a good record for your appeal!" she screamed at me during a break. "Appeal?" I asked. "I don't care about that. Appeals are for losers. We are gonna win."

Turns out we did. The confessions were not written down, no notes were kept (or if they were they were destroyed) and I was so obnoxious to the cops that afterwards the jury was amazed that their were two alleged confessions rather than one. They couldn't follow the detectives' testimony with me over there screaming OBJECTION! every other second.

The jury came back not guilty in about two minutes. So much for HEADLINES, even if they are in all caps. I am not an employment lawyer, although having employed around 100 people over the years I do know a bit about hiring and firing practices. All I know is that so called "overwhelming evidence" is often less clear than it first appears. What is clear is that trials, with the right to cross exam witnesses, the right to testify or remain silent, the right to put on your own witnesses, and, above all else, the right to be presumed innocent until and unless the Government proves your client guilty beyond a reasonable doubt are the way to test that so called evidence.

I don't know whether the Ravens' Ray Rice or the Vikings' Tom Johnson should be fired. I do know they should be presumed innocent. Johnson claims he was assaulted first by the police. With Ray Rice the fact that he cold cocked his girlfriend is not necessarily the whole story. What if right before he did that she said, "Hey, I'm about to reach into my purse, pull out a '9M' and blow your brains out!" I don't know, and neither does anyone else except for the two of them.

So it is important that we all try to remember to keep our minds open when reading about these cases. Me? I think these guys deserve the same thing the rest of us get: The right to be presumed innocent. Seems to me that until the charges are proven beyond a reasonable doubt or they plead guilty, they should not be summarily tried and convicted in the media. But maybe that's just me. I sincerely hope not.

Evolution of Search and Seizure Law Re: Blood Draws in the DUI Context (Part 1)

August 27, 2014,


By:Brent Thompson

Any warrantless search or seizure is presumed unlawful aside from a few jealously guarded exceptions. Traditional exceptions include but are not limited to (1) consent; (2) incident to arrest; (3) hot pursuit; and (4) exigent circumstances. Exigent circumstances concern situations where there is an emergency where obtaining a warrant is impossible or impracticable. Exigent circumstances may exist where there is a risk of immediate destruction of evidence or imminent danger of substantial injury where police must act quickly and have no time to get a warrant. One classic example of exigent circumstances is where the police know that a person is about to flush drugs down the toilet--obtaining a warrant is unrealistic and police must react quickly to prevent the destruction of evidence.

For decades courts in Washington believed that the natural dissipation of alcohol or drugs in the human body constituted an exigent circumstance that permitted law enforcement to subject individuals to nonconsensual warrantless blood draws in the DUI context. This belief was incorrect. Unfortunately a major flaw in legal reasoning became embedded into Washington state case law for decades.

Schmerber v. California--1966

It all began with the Schmerber v. California opinion issued in 1966. In Schmerber, the United States Supreme Court held a nonconsensual warrantless blood draw did not violate a defendant's Fifth Amendment rights because he was not compelled to give testimonial or communicative evidence. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826 (1966). The court also held there had been no violation of the petitioner's Fourth Amendment right to be free from unreasonable searches and seizures. Schmerber, 384 U.S. at 772. The court reasoned:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence,'. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to the petitioner's arrest.

Id. at 770-771 (citations omitted). The language in the block quote above was viewed differently by courts across the nation.

Split Authorities and Washington Case Law

Schmerber caused a split of authority. Lower courts differed on the question of whether Schmerber held the natural dissipation of alcohol in the bloodstream alone establishes an exigency that suffices to justify an exception to the warrant requirement for blood testing in DUI investigations. Missouri v. McNeely, -- U.S. --, 133 S.Ct. 1552, 1558 (2013).

Some courts believed Schmerber meant the state could force nonconsensual warrantless blood testing incident to all DUI arrests. See, e.g., Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1449-1450 (9th Cir. 1986) (claiming Schmerber rejected warrant requirement and permits search incident to arrest); State v. Machuca, 347 Or. 644, 657, 227 P.3d 729 (Or. 2010) (evanescent nature of a suspect's blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw); State v. Shriner, 751 N.W.2d 538, 545 (Minn. 2008) (holding dissipation of alcohol in defendant's blood creates single-factor exigent circumstances justifying warrantless nonconsensual blood draw); State v. Bohling, 173 Wis.2d 529, 533, 494 N.W.2d 399 (Wis. 1993) (same); State v. Woolery, 116 Idaho 368, 370-371, 775 P.2d 1210 (Idaho 1989) (same). Washington case law is permeated with this view of Schmerber. See, e.g., City of Seattle v. Stalsbroten, 138 Wash.2d 227, 235-236, 978 P.2d 1059 (1999) ("[T]here is no constitutional right not to take the blood test. According to the Court, blood alcohol tests are so "safe, painless, and commonplace," that the State could legitimately require suspects to take the test. [citing South Dakota v. Neville and Schmerber]. Given that the State could require suspects to take the test, the State can also legitimately offer suspects the option of refusing the test, with attendant penalties."); State v. Bostrom, 127 Wash.2d 580, 590, 902 P.2d 157 (1995) ("Both the United States Supreme Court and this court have held that the State can constitutionally force a defendant to submit to a blood alcohol or breathalyzer test. [citing Schmerber and State v. Moore, infra]"); State v. Judge, 100 Wash.2d 706, 711-712, 675 P.2d 219, 222-223 (1984) ("Furthermore, the Schmerber court rejected defendant's contention that a warrant must be obtained before blood samples may be taken."); State v. Zwicker, 105 Wash.2d 228, 239 n.2, 713 P.2d 1101 (1986) (In Schmerber the Court held that withdrawal of blood to determine blood alcohol content and its admission in evidence did not abridge the federal constitutional guaranties of...the right to be free from unreasonable searches and seizures."); State v. Wetherell, 82 Wash.2d 865, 869-870, 514 P.2d 1069 (1973) ("[Schmerber] held that the extraction of the blood sample from the defendant was tantamount to a search for and seizure of real or physical evidence which was governed by the fourth amendment to the United States Constitution. The warrantless nature of the designated search was justified upon the grounds that it was incident to a lawful arrest coupled with a reasonable emergency I.e., the progressive diminution of the blood-alcohol level during the time interval incident to obtaining a search warrant."); State v. Baldwin, 109 Wash.App. 516, 523, 37 P.3d 1220 (Wash. Ct. App. 2001) ("Schmerber held that a blood test can be taken without consent to determine alcohol intoxication because the delay necessary to obtain a warrant threatens the destruction of the evidence. Alcohol dissipates quickly after drinking stops, and there may be little time to seek out a magistrate and secure a warrant." (internal citations omitted)); Baldwin, 109 Wash.App. at 525 ("Without knowing what drugs have been ingested or how long a particular drug stays in the system of a particular person, the arresting officer faces an emergency situation when the facts and circumstances indicate that a suspect has been driving under the influence of drugs or drugs and alcohol.").

Other courts read Schmerber as requiring "special facts" beyond mere natural dissipation of alcohol for an exigency to exist to justify a nonconsensual warrantless blood draw. See, e.g., State v. McNeely, 358 S.W. 65 (Mo. banc 2012); United States v. Chapel, 55 F.3d 1415, 1419 (9th Cir. 1995) (holding arrest is not a constitutional prerequisite, but officer must (1) have probable cause to believe suspect committed offense, (2) must reasonably believe an emergency exists in which delay necessary to obtain warrant would threaten loss of destruction of evidence, and (3) procedure to extract sample must be reasonable); State v. Johnson, 744 N.W.2d 340, 344 (Iowa 2008) (officer reasonably believed he was confronted with emergency situation in which the delay necessary to obtain search warrant threatened destruction of evidence of intoxication under circumstances where driver caused an accident resulting in serious injuries, left scene of accident on foot, was later located several blocks away, failed field sobriety tests, was arrested, refused breath test, was transported to hospital where he had his blood drawn more than two and one-half hours after the accident); State v. Rodriquez, 156 P.3d 771, 772-773 (Utah 2007); id. at 780-781 (Under totality of circumstances analysis, probable cause and exigent circumstances justified warrantless blood draw from defendant who driver in automobile collision; vodka bottle was found at the scene, officer noted defendant's slurred speech, bloodshot eyes, and odor of alcohol when he encountered her at the hospital, and the collision was of a serious nature, as driver's passenger was expected so succumb to her injuries); see also United States v. Berry, 866 F.2d 887, 891 (8th Cir. 1989) (reading Schmerber as an application of the exigent circumstances to the warrant requirement although "Schmerber cast its decision in terms of a 'search incident to arrest' exception to the warrant requirement.").

In short, some jurisdictions adopted the view that the mere natural dissipation of alcohol or drugs in the human body alone presents a sufficient exigent circumstance which permits a lawful nonconsensual warrantless blood draw incident to arrest in all DUI type cases. Others jurisdictions adopted the view that the Fourth Amendment holding in Schmerber was fact specific--i.e. there was an emergency in Schmerber that presented an exigent circumstances under the particular facts of the case which made it impracticable for the officer to obtain a warrant under the circumstances and therefore the nonconsensual warrantless blood draw was legal. This split in authorities was not resolved until 2013.

Missouri v. McNeely Resolves The Split Of Authorities--2013

In McNeely, Tyler McNeely was stopped for speeding and repeatedly crossing the centerline. McNeely, 133 S.Ct. at 1556. McNeely was arrested after performing poorly on SFSTs and declining a portable breath test. Id. at 1556-1557. McNeely then told the officer he would refuse to provide a breath sample at the station. The officer did not attempt to secure a warrant. The officer drove McNeely to a hospital:

Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver's license for one year and could be used against him in a future prosecution. McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample.... Subsequent laboratory testing measured McNeely's BAC at 0.154 percent....

McNeely, 133 S.Ct. at 1557 (citations omitted). The United States Supreme Court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment warrant requirement for nonconsensual blood testing. Id. at 1556. The court affirmed suppression of McNeely's blood draw results. Id. at 1558. The United States Supreme Court clarified that "[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." Id. at 1561. The United States Supreme Court also rejected assumptions that have been embedded in Washington case law for decades:

Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect.

Id. at 1568; compare Stalsbroten, 138 Wash.2d at 235-236; Bostrom, 127 Wash.2d at 590; Judge, 100 Wash.2d at 711-712; Zwicker, 105 Wash.2d at 239; Wetherell, 82 Wash.2d at 869-870; Baldwin, 109 Wash.App. at 523; id. at 525; et al. The United States Supreme Court reaffirmed the warrant requirement:

Noting [in Schmerber] that "[s]earch warrants are ordinarily required for searches of dwellings," we reasoned that "absent an emergency, no less could be required where intrusions into the human body are concerned," even when the search was conducted following a lawful arrest. We explained that the importance of requiring authorization by a " 'neutral and detached magistrate' " before allowing a law enforcement officer to "invade another's body in search of evidence of guilt is indisputable and great."

Id. at 1558. The United States Supreme Court also clarified the proper reading of Schmerber. See id. at 1559-1560. It explained the Fourth Amendment holding in Schmerber was indeed fact specific and narrow. Id. at 1559-1560.

Today, in light of McNeely, we know that a fairly significant line of Washington jurisprudence is bad law. McNeely has also led to recent and significant evolution in search and seizure law concerning blood draws in the DUI context. For example, we have seen this evolution most recently in the July 21, 2014 Division One Court of Appeals case State v. Martinez. There, Division One held that the state may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes the testing and specifies the types of evidence for which the sample may be tested. State v. Martinez has had a major impact on DUI type cases in Washington in recent months including those handled by our office. State v. Martinez will be discussed further in later blogs.

Fergusson, MO and Me

August 25, 2014,

Tank.jpgMimi always says I manage to turn everything into stories about me, but this is hard not to. This is where I grew up. Well, not exactly. But my parents and older sisters lived in Fergusson right before I was born. I grew up hearing this sort of idealized fairy tale about the land where houses were cheap and the St Louis Cardinals were playing a short drive away. WWII G.I. Nirvana. Wife, two kids, house for $10K, the All American Dream.

Now? Not so much. It is disconcerting to see this. For many reasons. As a lawyer, one of the most disconcerting things is the way that completely incorrect legal analysis seems to rule the airwaves.

There are three primary legal issues involved in the situation unfolding in Ferguson. First is the standard dictating when police can and cannot stop someone to see what they are up to. The second is what sort of force is appropriate during such an investigatory stop, according to the circumstances as they occur. The third is the response of law enforcement to the demonstrations and the civil unrest that has followed.

Let's take the easy one first. Americans have a First Amendment Right to Assemble and Speak Freely. That is so fundamental. It is what the Founders did to create our government. They almost immediately made it the First Amendment to the Constitution once they figured out that they had given all the power to the Government without really thinking that through. They fixed their mistake by making sure that everyone in this country had a right to criticize the Government. Period. What a beautiful concept. I get paid every day to challenge the Government, and even that fundamental right is not found until several amendments after the First.

So, we have Free Speech and that shall not be infringed. There are exceptions, and that is where the Riot Police come in. I have no doubt that as the situation escalated the police were required to intervene with escalating force. That is not the issue. The issue is how did that happen?

Simple. Motivational speakers, or lawyers like me [who teach trial tactics to young lawyers] love the old trick where you pick someone out of the audience and push the palm of their hand as they stand across from you on the stage. Without exception that person will push back. Then you make the point that in every negotiation or act of persuasion if you push, the other person will just push back.

This is what happens when a bunch of cops show up in the type of body armor and heavy artillery that would have been the envy of many impoverished service members in Iraq. It pushes people. They push back. It escalates. Duh.

The second question is the issue of the initial stop, something about which I have yet to hear one single intelligent observation expressed on popular media. It boggles my mind that the pundits actually get paid.

The standard is simple. Reasonable articulable suspicion. i.e. Can you say why it is that you want to stop this person and ask them questions and is what you say reasonable. Would it make a reasonable person want to ask those same questions in order to find out what is going on? If you can say why you are suspicious and that is reasonable then you can, and normally should, ask away. The answer can never be, simply, "because he was black". That is not reasonable.

There is no requirement that the information is coming directly from the victim. A witness will do. After all, in some cases, the victim is dead or their phone line is cut. I know I sound like a prosecutor, but not to anyone who actually knows the law. That is what it is. You get what appears to be legit intell on a robbery of some sort and you see someone matching the description and you can stop them and ask questions.

The fact that race is involved is irrelevant, except that it helps identify the suspect. If a fat, bald, formerly red headed white guy robs a bank they better be stopping me if I am speeding away in a stolen car as the bank's alarm blares behind me. The more problematic scene is where the suspect is described as African American and the cops cast their net too broadly.

However, that is really a societal problem. Because legally it's ok. I do NOT like that it is ok. Every day I fight that. But the law is what it is. The fact that the officer stopped X to ask him questions happens every day and if that is wrong we need to look very closely at what should be OK for cops to rely upon and what should not be OK. As it stands right now [sorry pundits] it was legal. Period.

Which brings us to what happened next. That is the easiest of all. Because I have no idea. I was not there. I have not seen all of the discovery. I have not interviewed a single witness, have never talked to the cop who shot him. Just like all the know-it-all pundits.

And that is my point. The stop was valid. What happened next needs to be determined in a court of law. What happened after that is obviously a problem from which we need to learn. We need to remember that the right to protest is FUNDAMENTAL and the way we handle volatile situations can shape how they turn out.

I just hope that everyone at least tries.

Why I am Against the Death Penalty

August 4, 2014,

death penalty gurney.jpg
China, Iran, North Korea, and The U.S.A. What do we all have in common? How could we possibly have anything in common with those despotic dictatorial terroristic States? You guessed it. We all kill people who commit crimes. Great company, huh? It reminds me of the old W.C. Fields line about not wanting to belong to a club that would let him in. In fact we are the only supposedly superior "G7" country that still believes in this barbaric form of torture.

The Death Penalty. I'm against it. Big time. Frankly, all you have to do is look at the company we are keeping to know it's a problem. I mean North Korea? Really? The country that is starving its people to death in order to control them? Hiding rice in giant warehouses as it rots while the people starve? They kill people for just thinking things. So we want to be in that club? I mean, if you went to a party and the only other people in the room were these guys wouldn't you think twice about staying? So why do we?

Simple. Fear. And ignorance. And a complete disconnect between what we say and what we do. There is nothing that is not cruel and unusual about the death penalty. Just read the Eighth Amendment. How it is not unconstitutional is beyond me, no matter how many lame supreme court opinions I read. Justice Utter, that brilliant jurist, agreed. He quit the Washington State Supreme Court because of it.

When you read about Justice Utter, his background, his integrity and life experience, and above all, his compassion and intelligence, and his unwavering opposition to this grotesque form of "punishment" you can't help but wonder. Unless you don't have an especially inquiring mind, maybe. If he feels this way, and Kim Jong Un disagrees with him, who're ya gonna believe? If you are hesitating at all I have some rotting rice jammed into giant warehouses to sell you.

The latest horrific story is the botched execution of one Joseph Wood in Arizona, just last week. Are you kidding me right now? Again? Another prolonged torture session thanks to the reject chemists that are cooking up the poison used to put the bad guys down like dogs? Why not just blow them up? Like Al Queda does? I mean, those guys know how to kill people. What is wrong with us, anyway? Oh wait, I forgot, we are the same country that created and wrote into law the whole concept that we would not be cruel and unusual, making us better than everyone else. Supposedly. But when I read about the two hours Mr. Wood spent anguishing as his lawyers frantically tried to invoke his constitutional rights and save him from this inhumane treatment, I get sick to my stomach. What a joke. Who cares what he did. We are not China and Russia and the rest of them. We are the U.S. of A.

Oh wait, Russia has a moratorium on the death penalty too. Buncha commies.

So we need to look at ourselves closely in the mirror and ask what we see. Kim Jun Il, the guy who fed his uncle to dogs, or our heroes, the folks who created our entire system of government, the Founders of the United States? Take your pick. To me it's a no brainer. Maybe that's the problem. You know it's cruel when you see it. You know it's unusual when you find yourself hanging out with Kim J., the dog whisperer, Dennis Rodman's friend. Get the picture?

kim and rodman.jpg

Thank goodness we live in a state where our Governor is enlightened enough to save us from ourselves by declaring a moratorium on the death penalty here.

It brings tears to my eyes to see that Justice Utter teared up at the news. Maybe if more people really thought about it we could learn something and rise up above China and Iran and North Korea and their evil ways. Heck. If we work hard enough we might even catch up with Russia! Get it?

Lawyer Confidentiality Matters

August 1, 2014,

I am sitting at one of my favorite spots in Ballard on a beautiful summer afternoon. Miro Tea. It's great because the wi-fi is fast, it's quiet, and you can sit on the sidewalk and work away while everyone else strolls by being relaxed. Since college I have loved working in this type of environment. Hey, it got me into Stanford Law School. So say what you will.

Years ago, it was the noisier the better, but these days I prefer the quiet click click click of bloggers blogging and soccer moms posting on Facebook to the loud rock n roll of my youth. It's too distracting now when I am trying to do real work. But there's a problem.

The problem, ironically, is that there is some lame lawyer sitting right next to me, practically screaming supposedly confidential advice into his cell phone for all of us to hear. In case any of us wonder why he would do such a thing, it might be relevant that he is saying the words "Lawyer" and "Court" over and over. And over. Gosh. He must be a lawyer. Guess what? So am I. In fact, I actually know him, but unlike him I am doing my best to be inconspicuous and make sure nobody can see what I am doing. I was writing a brief, but he is so loud and obnoxious that I can't concentrate. So, I thought it might be fun to take a short break and vent by slamming him as I wait for him to leave.

The real issue I have with this type of behavior is that it just doesn't happen out here on the sidewalk on beautiful Ballard Avenue on a nice summer day. I see it in courthouses every day. Lawyers talking away with their clients about their cases without even bothering to lower their voices. Calling across crowded court rooms, blurting out information that is not meant for public consumption. I mean, get a room people! They have them you know. They are called attorney client conference rooms, found in almost every courthouse, and I basically refuse to talk to clients unless I am safely behind their closed soundproof doors. This one is a classic. He is using their actual names! I might even be the opposing counsel on one of these cases. Which could be very interesting since he is blab blab blabbing away, discussing strategies and different approaches to the case, for me to hear.

What can he be thinking? Oh, wait. He isn't. If he could think that deeply he might even be able to read. He might even be able to read the RPC's, or Rules of Professional Conduct. RPC 1.6 for example. The one about confidentiality. The one that says we have to be super careful to keep all communications with clients confidential. I can tell you that his client has NO IDEA that he is broadcasting to the entire greater Ballard downtown core. They probably think he is sitting at his desk in his office behind a closed door. But he isn't.

I can't wait for him to hang up. I want to smile at him and say, "Hey, Counsel." It's what the old dogs like me say to other lawyers when we don't know their names. It's a bit old school, I know, but we are supposed to be lawyers, not hipsters. It always makes the youngsters startle a bit when I do that. You can tell they are mystified how I was able to tell that the harried looking person in the courthouse elevator with the giant stack of files is a lawyer. But, they will learn. They're obvious.

But not as obvious as this fool. I hope he reads this. I am annoyed that anyone who is charged with the sacred duty and honor to protect their clients' lives would have so little regard for their privacy. Or for their own ethical obligations.

So, when you work with a lawyer, ask them. Do you sit in tea shops and scream at your clients on your cell phone?? If they hesitate, find another lawyer. One who can read.

Another False Accusation Bites the Dust

July 18, 2014,

Well, go figure. I really did not intend to focus so much on sex crimes right now, but things happen. Like the woman who has been defaming and falsely accusing one of my favorite young musician / songwriters, Conor Oberst (aka Bright Eyes) , suddenly retracting her previous lies about the poor guy. [BTW, notice how the aka makes him sound like a criminal if you don't know him? This is why prosecutors love to pile on the AKA's when they file charges. It just sounds bad.]

Turns out, the woman was making stuff up. In her retraction, Joan Elizabeth Harris aka Joanie Faircloth states that she fabricated on-line accusations of being sexually assaulted by the musician ten years ago. The false accusation had been published in the comments section of an XO Jane article in December of 2013, where they quickly spread on Tumblr. But not before the lies had damaged his career.

Turns out, that rumors were spreading that Oberst had been fired from his record label, Nonesuch, which would have lent great weight to their truthfulness, if it had really happened. (It appears he never was fired.) I mean, what self-respecting record label wants to lose money? The common reaction would be that it must be true if the record label is willing to take such a drastic (and costly) step. Kind of like it must be true when the prosecutor is working so hard to lock up someone who has been accused of rape. Why go through all that trouble if it is all based on lies?

Well, Ms. AKA-Whatever supplies us with one explanation for why people might lie: She was going through a "difficult period" in her life due to her son's illness. Huh? I mean, too bad about the son, but what does that have to do with anything? Just goes to show you. There can be as many reasons for people to make up something as serious as raping a sixteen year old as there are people in the world. Oh yes, she claimed that this happened when she was 16, back in 2003, ten years before she made her public claims. If ten years passing before someone cries rape is not a red flag, I don't know what is.

We criminal defense lawyers, and prosecutors too, for that matter, refer to this as "delayed reporting". It is a possible clue that the accusation is fabricated. The person making the claim has had ten years to develop their story, after all. When something that bad happens you would normally expect them to come forward sooner.

It is not that real rapes don't go unreported. Tragically, that happens every day. Everywhere from colleges to military barracks, women are afraid to come forward after being sexually assaulted, and who can blame them? They have to go through the gauntlet of police investigation and potential public exposure of their personal lives. Which is why false accusations like this are so very wrong. They make the real victims look bad.

Oberst spent seven months trying to get Harris aka Faircloth to tell the truth. Finally he had to file a libel suit against her before she would admit that she lied. Some might say that this was just a threat made by a guilty rapist to avoid answering for his crimes. However, assuming he had a good defense attorney, he likely would have been advised not to go that route, precisely because by taking the offensive he risked being seen as a bully and manipulator, or in other words, like a rapist. That is why you are 'darned if you do and darned if you don't respond to false accusations, and why you need a lawyer to help you if you are falsely accused.

In jury selection I sometimes ask the jurors, "If I were to meet you socially, and the first thing I said was, 'Hi, I am not a child molester,' What would you think?" After squirming in their seats for a bit, they always say, "I would think you were a child molester!" I then go on to show how this is the reason someone might not be comfortable taking the witness stand to testify on their own behalf. Simply denying the lies can make you look guilty.

Thank goodness that didn't happen here. It is one of those rare examples when taking the offense worked. Normally it is all defense. Which is why criminal defense attorneys guide their clients through this minefield slowly and carefully. At every turn you risk making the lies look real, just by the way you react. It is also why our system of criminal justice is so critical. You shouldn't be convicted for holding your ground and making them prove what they cannot prove when it did not happen. This is why the presumption of innocence is so very important. In America, you are innocent until proven guilty. Knowing how to make sure that works the way it is supposed to is what lawyers try to do every day, against all the odds.

Not everyone can afford to hire a team of lawyers and file libel suits, but everyone has the right to defend themselves in court against false charges. I'm just glad for Mr. Oberst that this time it worked.

What if you are Accused of Committing a Sex Crime?

July 17, 2014,

First of all, take the Fifth.* Remain silent and get a lawyer. Second, understand this: Sex crimes are tough. Sex crimes are simultaneously the most heinous crimes to be accused of committing, the hardest crimes to disprove once you are accused, but also the easiest crimes to falsely accuse (and convict) an innocent person of committing.

This post is my follow up to my last post where I said that it does not matter whether or not you committed a crime when I represent you, with two possible exceptions: Sex crimes and crimes involving substance abuse.

There are several reasons that it matters whether you are guilty of a sex crime when you are confronting the legal system in Washington State. The two primary reasons have to do with proof and sentence options. Let me explain.


Trust me, it can be easy to get witnesses in sex cases to contradict themselves, look like liars and generally lose their ability to convince anyone that anything ever happened. Every good criminal defense attorney knows what I am talking about. It is what happens in trial, when ordinary people find themselves in extraordinary situations. We do what we can to show that there may be missing pieces of evidence, inconsistencies, undue influence from investigators and family members who script out the witness' answers through the use of leading and suggestive questions, and much more. There is plenty to cross-examine witnesses about when they are testifying about things like rape and child molestation.

But, there is also this: Jurors are not fools. Witnesses either had something happen to them or they didn't. It's not like an eye witness to an armed robbery who picks out the only black man in the court room, a man they had never seen before or since the robbery occurred (if then). It's fathers or uncles or aunts or sisters who commit most sex crimes. ID is generally not an issue.

And, if the molestation or rape or indecent liberties or communication with a minor for immoral purposes really did indeed take place, the witness is telling the truth. And jurors know that.

But, there is another, probably better reason that it matters if you are really guilty when accused of committing a sex crime. There is help available, in most cases.

Sentence Options (SSOSA's)

In Washington state a Special Sex Offender Sentencing Alternative (SSOSA) is available for individuals charged with certain sex crimes, who are willing to admit that they are guilty and that they need help with their problem or they will be at risk to reoffend, and, above all, who are willing to commit to years of specialized intensive treatment.

It is not an easy way out. No. It requires admitting that you have a problem to begin with, followed by years of steadfast dedication to working on that problem every hour of every day, doing everything in your power to get well. But, in many cases it can be a way to avoid years of prison where you will only get worse, not better, and instead try to fix yourself.

Don't misunderstand. As noted, sex crimes are also notoriously difficult for innocent people to fight. It goes both ways. Plus, innocent people won't succeed on SSOSA's. They will fail every single test that requires you to admit that you have a problem. The only problem innocent people have is being falsely accused of a crime or crimes they did not commit. They will be deemed evasive and dishonest and in denial if they so much as hint that they are not guilty. So, if you are truly innocent you need a lawyer who gets that. And knows how to fight back.

I'll say it again. Sex crimes are tough. Many lawyers refuse to take them. I understand that. But, if not me, then who? Who is going to help someone who is vilified by society, perhaps falsely accused, and if not, in great need of help, ....if not me?

So, again, you see. It really doesn't matter to me whether you are guilty or not. If you are not, then you need to put the Government's case to the test. If you are then you need to give some thought to taking advantage of the help that is available out there. Me? I'll help you either way. It's what I do.

*Nothing in this blog is intended to be legal advice. Every case is different. If you are facing even the potential of being charged with any kind of crime, get a lawyer to help you. That is the most important thing you can do.

Both Sides Now

July 14, 2014,

Jail Cell Bars.jpgMy last post is getting some interesting feedback. Pro Pot types think it was a good discussion about the legalization of marijuana here in Washington State. Anti MJ folks see it as a wonderful condemnation of the harmful effects of drugs. Some felt my treatment of the Seattle City Attorney, Pete Holmes, was too harsh, others thought it was too kind. Everyone loved the photo of Rob Ford, looking as if he is about to explode.

The fact is my whole point in writing that was to be neutral. I did not (and do not) want to take sides on that issue. It's not my job. I'm just a lawyer. I don't take sides unless I am getting paid. Actually, that's not entirely true, as I am known to be pretty outspoken about my political opinions and personal viewpoints. In private. In public I'm available for hire. Pay me and I will argue it, up to a point. That point is always the same: I won't knowingly straight up lie about anything in the course of performing my duties as a criminal defense attorney. That means I will not knowingly say something that I know to be untrue.

I may let people get the wrong impression by saying things a certain way. I may emphasize facts that I know will lead them to reach their own conclusion, which I may know is wrong. I may make them "think things" as a prosecutor once objected in the middle of a trial, but that episode deserves its own posting. The one cardinal rule we all have to follow is that we cannot be a party to a fraud on the court. In other words, if our clients tell us that they committed a crime we cannot and will not allow them to take the witness stand and say that they didn't. That's about it. Pretty much everything else goes. This is why I have represented people charged with some pretty major crimes for months on end and never asked them whether they did the crime. I didn't want to know.

"WHAT?!?!" You may well ask. I understand. How can I possibly do my job effectively without knowing whether my client is guilty? The answer is simple. It is totally irrelevant. "WHAT WHAT?!!?", I hear you say. But, it's true. It makes zero difference to me whether or not someone is guilty of a crime when I represent them. None. What matters is what is the evidence that the Government wants to try to use against them, what issues does that evidence present, what evidence is out there that might contradict the Government's case, what exactly is my client accused of doing wrong, and, finally, what legal issues exist in terms of search and seizure, warrantless arrest, hearsay, improper charging, and on and on. In short, what tools are available to me in any given case to make sure that nobody goes to jail without first leaving no stone unturned before the right to be presumed innocent is overcome. That simple.

Well, not simple really, but that is what I get paid for. There are some cases where it really does matter whether someone is guilty or innocent, primarily in situations where they need treatment to help them stop committing those crimes in the future, such as sex crimes or crimes involving substance abuse. But, that is the subject of another post. For now, I am focusing on the simple cases, the ones where it just does not matter whether someone is guilty.

Still, I hear the skeptics. The ones who say that criminal defense attorneys are a bunch of amoral sociopaths. [This could not be further from the truth, by the way, but no matter.] The fact is that we have a system of justice in this country that is the ideal for the citizens of most of the second-class countries in the world, countries where folks get locked up for political or personal or other improper reasons. Here, if you go prison, the idea is that you only went there after the Government's case was put to the test through extensive analysis by both the prosecution and defense, research of all legal issues, close review of all factual discrepancies, and ultimately, when appropriate, by a neutral and independent jury looking at the evidence and deciding, beyond a reasonable doubt, whether the crime was committed.

And, for that to work, you have to have criminal defense attorneys who are dedicated to that system and who do not substitute their own opinion about guilt or innocence when it is supposed to be up to juries and judges to do that.

That's just how it works. If you don't like it, move to China. Or Russia. Or half the other countries in the world where you can be killed or imprisoned just because you belong to the wrong tribe. Here you gotta come through me before you can try to lock up one of my clients, whether or not they are guilty. That's the law and that's my job. And, I am proud to be the last best hope for my clients, who are up against the giant machinery the whole Government brings down on them in their attempt to lock them up and throw away the key.

Legal Marijuana in Seattle

July 10, 2014,

mj bud.jpg

I'm kind of in a state of shock.

Not because NBC News is broadcasting out of some parking lot in SODO about the one and only legal pot store in Seattle, Cannabis City, on its Opening Day. No. I'm in a state of shock because the local Fox News outlet is talking about the City Attorney for Seattle, Pete Holmes, being fourth in line when the store opened at noon Tuesday.

We've come a long way, baby.

You see, it doesn't really matter where you stand on the legalization of marijuana issue. Some say it's like D Day. To others it's more like Pearl Harbor. It matters not. The fact is that, legally speaking, this was an historic day in the history of Washington State.

I remember years ago selecting a jury on a big pot case. "Biggest Pot Bust in Island County History!!!" said the Whidbey News Times, that bastion of journalistic accuracy. [Funny part about that was it was only twelve pounds and we were simultaneously working on sixty pounds found in a tire buried in a back yard in Oak Harbor. But, who were we to say anything?]

There was a tall, elegant man seated in the front row of the jury panel, Osh Kosh overalls and all. I half expected him to be chewin' on some timothy. (Turns out he owned the best dairy farm which happened to be the best piece of undeveloped real estate on the island at the time.) The prosecutor saw a right wing conservative. I saw a farmer.

So, the prosecutor called Mr. Farmer up to explain his sacred opinion about the war on drugs to the kind people of the jury, expecting a scathing indictment of my liberal commie ways.

"Well," he said. "If ya ask me, the 'war on drugs' is just some fancy excuse for a bunch of crooked cops and crooked prosecutors to get together and pad their pockets at the expense of the rest of us law abiding citizens."

I wanted to run over and hug him.

Those of us who have represented people accused of possessing or selling or growing or smuggling marijuana over the past decades have seen first hand the impact of the drug laws when it comes to marijuana. Again-- It just does not matter where you stand on the issue. Facts are facts. Enormous amounts of time and energy and people power and, above all, money have been spent in the "Just Say No" effort. An effort that has more or less just come crashing down overnight. It makes any thinking person wonder what it was all about.

Which brings us back to City Attorney Holmes.

In a way, the most shocking thing I have seen about all of this, is the Seattle City Attorney brandishing his legal ganja in front of TV cameras. That's because that singular grandstanding moment, albeit profound in its own way, represents the biggest "radically new thing" I have seen happen with my own two eyes since the whole legalization thing happened many months ago.

Me? I was on my way speeding past that media circus, high overhead, tempting fate while careening along that death trap, the Viaduct, listening to the live radio coverage beaming up from SODO down below me, tempted to make a quick detour to at least grab a photo of history in the making. But, I was rushing between a three hour client conference at the Federal Detention Center in Seatac to an important court date downtown. (DUI dropped down to a Neg I). And besides.... What self respecting attorney would want to be caught on national TV standing outside a head shop on steroids surrounded by a bunch of dread lock rasta vagabonds, looking for all the world like just another stoner, except wearing a suit? Well, in Seattle, apparently the City Attorney does! Hope he wasn't driving.

Other than that, not much is else new around here. Seattle took its typical Scandinavian methodical responsible yet fundamentally radical and fiercely independent approach to the whole process. (Remember, they practically invented such advanced legal concepts as community property and sentencing guidelines here before virtually any other states had even thought of it.)

I mean, one pot store in the entire greater Seattle area? Seriously? In Denver they had one on every corner the day after their law passed, which incidentally is the same day we passed ours. Go figure. Buncha cowboys to our mellow tree huggers I guess. Either way, Washington is doing its best to make sure that the entire process is carefully regulated and controlled. This ain't no hemp fest Woodstock type affair. We can be proud of the way our lawmakers and law enforcement have handled every aspect of this significant change to our existing laws. Maybe that's why nothing much seems very different, other than our stoner City Attorney waving around baggies on TV. I wonder if he knows that mayor from Toronto?

Mayor Ford.jpg

These days kids duck behind dumpsters in Ballard on Friday nights, sneaking around outside the music clubs and bars, toking up and laughing at nothing. But that could easily be ten years ago. Thirty, for that matter. Nothing's changed. The more things change the more they stay the same.

And, that's the point. The legalization of marijuana is simply a reflection of what already is. Like it or not. The change in the law, by definition, reflects what the majority of the voting public believes. That is how our country is supposed to work. At least that's what they taught us in law school.

This change is not really a change at all. It's a fix. Fixing the law to reflect the majority opinion. As it should be. And, as it is. Here in Washington.

Eat your heart out, California.