Law of the Land

     One of the reasons I love to travel is that I learn a lot about other people and places.  A Zimbabwean guide I met in Africa had a mantra he repeated to us: "learning and discovery."  Just two months ago I spent a month in Australia and learned some of their history.  It bears an uncanny resemblence to American history, especially regarding natives who lived there before the Europeans arrived.

     Australia's aborigines are thought to have lived on that continent for as long as 60,000 years.  Their artwork is phenomenal and is the oldest continuous art tradition in the world.  Here is one such rock painting depicting lightning man:

     They adapted to a harsh, dry enviroment and employed nearly every plant and animal for food, medicine or tools.  Over time, hundreds of original clans had specific territories.  There were many languages as well, many of them now lost.  (see http://www.healthinfonet.ecu.edu.au/map-aboriginal-australia for a map done in 1996 of the language groups' territories.) 

     Yet when Captain Cook 'claimed' Australia in 1770 and the English later used it as a penal colony starting in 1788, the land was sparsely populated.   That along with sheer imperialism led to a legal concept known as ' terra nullius'--land owned by no one.  This justified an entire continent's theft.  Sound familiar?

    Just like our own Native Americans, Australian Aboriginal customs of land ownership were more tribal or clan-oriented.  Their concept of land ownership was ancestral, spiritual and respectful.  They neither had a written language nor a history evolving from feudal land rights.  And sadly, they did not have the weaponry to defend it.  As a result, the Aboriginals' lands were taken; their rights ignored; and their basic humanity denied.  There were lost generations of Aborigines who were taken from their parents and raised 'white.'  (The 2012 movie "The Sapphires" tells one such story.)

       Not until 1962 were Aboriginals given the right to vote and in 1967, they were counted in the census.  But even in the 1970's, the courts still declined to overrule the medieval 'terra nullius' doctrine.  This tragic history is well captured in Thomas Keneally's book, "The Chant of Jimmy Blacksmith," also a movie.  Finally, in 1992, in Mabo v Queensland the High Court of Australia struck down this insidious rule.  It is not easy for Aboriginals to re-claim their ancestral lands but at least the law permits it now. 

     We visited Kakadu Park, which is east of Darwin in the top end of Australia.  We floated on the yellow waters of the misnamed Alligator River watershed (blame a Yank for that one.)  The park is now Aboriginal owned and one of our river guides is one.  She told us how many of the birds, fish and crocodiles were eaten or used by her people.  Later, we camped in the desert lands surrounding Uluru (aka Ayers Rock) and walked with an Abo guide who explained the medicinal value of the seemingly dry and useless plants on her land, values scientists are only slowly studying.

     'Learning and discovery:'  It is a good thing that the legal rights and ancestral knowledge of the First Peoples of our planet are on the rebound.

Peruvian Boot Caper

     My wife and I just returned from a fantastic 17 day trip to Peru, including the Amazon basin and high Andes mountains sites.  Machu Picchu lived up to its reputation for its high plateau setting, its variable lighting and the stunning stone work of the Incan city and terraces there.

     When we came back to Lima from the Amazon part of the trip, our group of 16 rode a bus to the national history museum.  At the museum, our guide encouraged us to leave all of our backpacks and other property on the bus, since it would be safe.  We did as instructed.  Upon our return, they had switched buses.  Our backpacks and property were all piled in the front seat of the new bus.  Except that Dana's boots were missing.  She had changed into sandals at the museum and left her brand new Merrill boots and custom made inserts near her backpack.  We notified the guides about this.

    The new bus and its cargo hold were thoroughly searched to no avail.  Dana was questioned about whether she may have left her boots back in the Amazon.   Despite our certainty that they were on the bus, our trip leader set a search of our previous lodges in motion.  At some point the blame game began.  Our trip leader-guide implied that the local Lima guide who encouraged us to leave things behind on the bus should have warned us about the bus switch.  But later we found out that he might not have been warned about the bus switch.  Even so, the local Lima guide initially denied encouraging us to leave things behind.  Later he apologized to Dana but I don't think he actually accepted any responsibility.  The next day our trip leader told us that the bus company is not supposed to do any property handling or transfer without a guide present.  So now the bus company was to blame.  Later we learned that the driver of the first bus denied any knowledge of the boots and was ultimately fired.

     I told the trip leader that from our point of view the travel group--Overseas Adventure Travel (OAT) should just let us know that they are taking responsiblity for the loss and ultimate restitution for the missing boots and inserts.  No such statement was made but the trip leader spent many hours on the phone tracking down every possibility.  Coincidentally we had travel insurance with OAT, which they suggested we file a claim under.

     Before we left Lima, our trip leader took Dana to the local cop shop to make a report.  There was one high ranking officer (male) and a female tourist police officer.  They only spoke Spanish and Dana did not understand them.  They had one internet connection between their two computers and they had to keep plugging and unplugging each computer to do their work.  After over an hour, they produced a typewritten report in Spanish.  It was never fully translated for Dana, but she felt compelled to sign it.  It turned out that it stated that the boots were in a black daypack (which was untrue.)  The trip leader insisted on this unnecessary fiction to make sure the Peruvian police took it seriously (as if it would solve the problem.)  Why we never knew. 

     One thing is for sure: The Peruvian police and our trip leader spent a heckuva lot of time on this without any resolution, except that a bus driver lost his job.  If this had occurred in the U.S., the police might have spent 15 minutes on a report and filed it away.  Without proof, though, no one would have been fired here.  We theorized that the boots might have been dropped in the transfer and lost.  Or that the bus driver stole them, or that he accidentally left the bus unlocked and someone else stole them.  Theories but not answers.  Now we have to file an insurance claim.  In the end, a minor mishap, and an insight into the strange methodology of the Peruvian police in an otherwise magnificent trip.

"IF IT BLEEDS, IT LEADS. . ."

     This motto of TV news can often drive the criminal justice system.  Seattle recently has had several horrific DUI (alleged) accidents in which innocent people were killed.  Within just a few weeks, our new Governor and the Legislature--a bipartisan group, no less--are proposing stiffer new penalties and restrictions for driving under the influence.  Obviously they are reacting to the news.  Nothing unites liberal and conservative politicians more than an easy target which has no constituency.  Well, maybe the restaurant/bar and liquor lobby...but they won't object as long as it doesn't dent their wallets.  The Legislature will have to hurry, as the regular session expires on April 28.  That does not bode well for a thoughtful new law.

     So the easiest political solution is to increase the penalties--more jail, which is what is proposed for second and third DUI's.  A second DUI will have a 6 month mandatory sentence or time on a transdermal device.  This device is an ankle bracelet that measures the alcohol exuded in one's sweat and then electronically sends a signal to the supervising company.  Sentinel Offender Services is the company Seattle Municipal Court uses.  These devices cost the defendant about $11 per day, which for a six month period would cost nearly $2000.  Now most arrestees do not have that kind of  scratch at hand, so either a city or county will pay (doubtful) or jail will be the only alternative--also a taxpayer expense. 

     This expense is over and above the mandatory fines and assessments which for a second offender are around $1,500, not to mention the high risk insurance, the ignition interlock device ($70-100 per month) and the cost of alcohol treatment.  All but the well off DUI offender will be in debt for a second offense.  For a third DUI, the mandatory time of a year is the proposed penalty, which also is the maximum penalty.  This means there will be no incentive to plead and more trials (expense) will ensue.

     The proposal for first offenders is a criminal filing within 48 hours and no release of the offending vehicle until an ignition interlock device is installed.  With 38,000 new DUI arrests in Washington each year, this poses a challenge to financially strapped city and county prosecutors.  Even Seattle Municipal court which files much faster than King County normally does not file within 48 hours.  As of 2013, in King County, which files the most DUI's of any jurisdiction in the state, there is about a 60 day lag between routine DUI arrests and the first appearance in court.   Shortening this time up will take a few more deputies at a minimum.  If booking in the jail is required after every DUI arrest, the cost to the counties and the prosecutor's offices may not be within their current budgets. 

     As for the imposition of interlock devices before release of the vehicle, there is a due process problem.  Without time for a court or administrative body to provide a meaningful hearing on whether the arrest and/or seizure of the vehicle is legal, it may not withstand a constitutional challenge.  More significant is the right of an innocent owner of the vehicle, such a spouse or a parent.  Will they be deprived of a ride to work or school for the sins of another?

     Finally, the most radical proposal is the ten year ban on alcohol for third timers.  This prohibition would be enforced by creating a special driver’s license and requiring bars, restaurants and liquor stores to card everybody, regardless of age.  Here is where the restaurant/bar and liquor lobby may object. For they would become drink cops making sure everyone at the table is allowed to drink!  What if the prohibited husband is caught taking a taste of his wife's wine?  Will he be booted from the restaurant?  And will she go down as an accomplice?

     Will any of this work?  Will this decrease alcohol related accidents--the ultimate purpose of all this lawmaking?  Isn't our drive and drink culture at the root of this?  For starters we know that these new laws will cost the taxpayers more money.  One proposal is to re-up the beer tax.  Maybe Tim Eyman will propose an initiative to block that--wrecking more havoc on government programs and budgets. 

     As long as suburban restaurants (their prime profit maker) and country taverns serve alcohol, people will drink and drive.  In big cities, there are more taxis and public transit to turn to, but people still like the freedom of driving.  So I am skeptical that the proposed draconian penalties will quickly reduce alcohol related accident rate, as long as some drinking and driving are legal--which is the case.  How about a designated driver custom?  Every person or group at a bar, restaurant or tavern must have a designated driver, whether a taxi, bus or person in their party before alcohol can be served?  What would the  restaurant/bar and liquor lobby think of that?

Corruption is a Cancer

     I happened to be in Egypt touring about 2 months before the revolution in January 2011.  People often ask me if I noticed any sign of it coming.  Frankly few Egyptians would openly discuss their politics with an American tourist, other than some nicety about our current Prez.  However, one older taxicab driver did mention something that I now realize was a peek into an open sore there.  It happened when he told us to meet him in a certain location after we toured a mosque.  When he hastily pulled up, he told us to hurry up and get in his cab before the police came.  I asked him if that was due to traffic.  No, he replied, he did not like paying bribes to the police so normally they would not let him pick up or drop off passengers in that location.  He was angry about that and went on about how corrupt the police were and how it made life for him much tougher.  I didn't connect that complaint to the revolution until later when I learned of the Tunisian vendor who burned himself to death because he was harassed by the police for their bribes.  Corruption is what ignited the Arab Spring.

    Egypt is still in political turmoil due to the reigning party refusing to share power or respect minority rights, but I have no idea if there is less corruption.  What I do know is that in many societies corruption is endemic.  We were just in India last November and there corrupt police took bribes right before our eyes.  It happened in the holy city of Varanasi, which is on the Ganges River where people come from all over India to purify themselves in "Mother Ganga."  (To me the Ganges is filthy and polluted.  I wouldn't put my toes in it, but we saw people bathing in it and drinking it right next to holy cows that ambled past them in the shallows.)  Anyway, I was standing on a street corner about a mile from the riverfront and apparently the police were preventing most motor vehicles from entering this very congested street where the hordes descend to the water.  However, every now and then, a tuk-tuk driver (3-wheeled golf cart-like cab) would stop and hand a few bills or coins to the cop and drive into the so-called forbidden zone.  If I wanted, I could have waited and videotaped more transactions.

     This was minor corruption compared to what the high level politicians in India had going.  While in India, the India Times ran a story about the millions of dollars each and every ruling government coalition since independence from England in 1947 had scored from corruption--building contracts, payoffs, permit payments--you name it.  The justice system and police were especially corrupt.  This was well documented in a recent Pulitzer prize winning book--"Behind the Beautiful Forevers."  Reading like a novel, this book details the actual lives of some individuals living in the slums of Mumbai (aka Bombay).  Several family members in the book are falsely accused of murder and the family is literally forced to bribe police and judicial officers to prevent further injustice.  It is a book to make anyone angry.  Recently the rape and murder of a young woman which was ostensibly aided or at least overlooked by corrupt police made the news.  Whether it will lead to meaningful reforms is hard to say.

     Just scan the news and stories on corruption span the globe.  Consider the drug cartels in Latin America, or the national sport of tax evasion in Italy or Greece, or the near absolute power of industrialists in China and don't forget the Russian Mafia and its government which will punish its own un-adopted children to spite America.    

    Which leads to America.  Here, the police and judicial system is quite clean.  I grew up in Chicago where voting "early and often" were touted. It is no longer corrupt there but in many states there have been barriers erected to make it harder for some people to vote.  More significant is the corruption that unlimited campaign spending has caused.  It is complex but it is obvious that Congress is beholden to powerful interests and lobbies who donate to their campaigns freely.  Maybe a congressman cannot enrich himself personally but he can fatten his campaign budget by voting the right way.  After he retires from Congress he can work for one of his favorite lobbies or industries and then enrich himself.  This is corruption American style.  And it is slowly eroding our democratic ideals. 

    I doubt we will have an "Arab Spring" here but the power of money is perilous. 

A Nation of Laws and Lawbreakers

It is commonly said that America is a nation of laws. There are so many different laws in America, starting with the U.S. and the 50 state Constitutions, the federal statutes written by Congress for over 200 years, the 50 states' individual codes, the innumerable city and county ordinances, that no one can come up with a number other than to say 'maybe a million or so.' So does that make us law abiding? Not necessarily.

Historically, we were founded by lawbreakers who rebelled against the tax and other restrictions England imposed on the colonies. The real Boston tea party players were criminals to the English but the first patriots to us. Since then we have a tradition of resistance to various laws. Recall the underground railroad for runaway slaves, or the rum runners in the 1920's. How many of us are here either because our ancestors were draft dodgers or entered America without permission of the government? In the 1960's, peace protesters broke the law and so did marijuana smokers in droves. Illegal drug usage is still happening on a large scale, despite severe punishments for the suppliers.

There are those who believe that all drugs should be legalized and which in theory would stop the crime that surrounds the drug business. Easier said than done. Should the government get into the business of dispensing these drugs, or should it be a regulated industry like alcohol? If legalized, then minors would have to be prohibited. Would that still lead to more crime? I know when my kids were minors, they could easily find some adult to make a straw purchase for them. There were bums who hung out by the liquor stores who filled in nicely. Legalizing, while resolving some issues, will open other cans of worms. In Amsterdam, the Dutch government is moving back toward more restrictions on who can use drugs, prohibiting drug sales to non-citizens. The purported reason: to get rid of the 'criminal industry' surrounding the freedom to use drugs.

As vexing as drug laws are, traffic laws are nearly infinite in their numbers. Yet two violations--speeding and drunk driving--are still commonplace. Just drive on the freeway and note the average speed can often be at least 10 miles per hour over the limit, unless highway patrol is visible. Of course if you travel in Europe, speeders are even more rampant; whereas, drunk diving is less common due to better public transportation and more draconian penalites.

In America, drunk driving has declined because of higher penalties and well publicized enforcement. But what about texting while driving--which may be nearly as dangerous as drunk driving? Everyone agrees that 'smart phones' are risky to drive while using, and yet. . .

What does it take to get people to hang up and drive? The same methods that have caused drunk driving to decline. Should we send those who text while driving to jail? If we want to stop the keystroke distraction, yes! Will we? You know the cell phone companies and other lobbies will fight it. If it happens, it will take time and more bad accidents to change these new habits.

Then there are environmental laws and regulations. Recently Seattle banned plastic grocery bags, as have other cities. Is this the right way to get people to stop creating indestructible acres of plastic garbage? Or does this just add more expense to rising food costs? Speaking of which, New York City's mayor is pushing a ban on large sodas. How far should the 'nanny state' go in protecting people from bad consumer choices. Would such a law like this spawn soda renegades who would get around the ban with clever 'soda structuring?' And is mandatory broccoli consumption the next step to legislating good nutrition?

It all reminds me of Dupont's infamous corporate tagline: "Better Things for Better Living...Through Chemistry." Now we might say: "Better Things for Better Living...Through Laws and Regulations." If we keep up the lawmaking, I suspect the lawbreaking traditions of this nation may be in for another great revival.

Why Juries Are Better Than Judges

     One of the beauties of our system of justice is that all citizens are eligible to decide the cases.  Unlike the European or continental system, the Anglo-American system puts a cross section of people on a panel to reach verdicts on civil and criminal cases.  Deciding whom to believe is central to the jury's role.   This is what juries do best.  The 12 members of a jury use their collective wisdom and experience to decide who is telling the truth.

     I just had a serious felony trial where the state called the alleged victim and a presumbly independent witness to say that my client committed an assault.  On our side, my client and a fellow co-worker testified to a totally different and innocent version of events.  The prosecutors hammered on the "independence" of one of their witnesses and tried to show how 'biased' my co-worker witness was.  Nonetheless, the jury  acquitted my client in well under an hour.

     Why?  Obviously they did not believe the state's witnesses and instead believed our witnesses.  One clear reason is that the alleged victim's manner while testifying was strange.  He clearly spoke English, but instead used an interpreter (which the jury saw through and became suspicious of.)  He refused to ever admit a mistake even when I confronted him with inconsistencies.  He testified that he was in the middle of the street some15 feet away from the pedestrian crosswalk at the time of the assault.  His written statement to the police the night of the incident said he was "in the crosswalk."  When I asked him about that difference, he insisted there was no inconsistency--that he meant 'near' the crosswalk in his statement--so as to reconcile the inconsistency.  When asked about other inconsistencies he attempted to explain them all rather than admit error.  In closing I argued that a liar can never admit a mistake.

    In contrast, my witnesses did not use interpreters, even though their English was far from perfect.  In this way, the jury would understand and hear their actual words and get a better feeling for them as people.  They also had a nice, likable manner in contrast with the alleged victim and the other 'independent' witness.  When confronted by the prosecutor with some inconsistencies, my witnesses did not get defensive but either conceded error or explained in a way that made sense.  It was all about how they were perceived by the jury.  This intangible, call it likability, made all the difference.

     Judges, on the other hand, have difficulty with the intangibles.  They tend to be more intellectual and make decisions without really discussing it with anyone else.  So their thinking is not shaped by other viewpoints and for that reason, can be narrow minded.  For political and other reasons, they have a real problem in disbelieving police officers.  In contrast, jurors are much better at scrutinizing police credibility. 

     Recently, I raised a Fourth Amendment issue, attacking the stop and seizure of my client in a case.  This type of motion is only heard by a judge who decides both the law and the credibility of the witnesses.  The police witnessses were adept at either not recalling key events or of being so certain of their observations that they were superficially credible.  I say superficially because they convinced the judge they were truthful.  One police officer was over-the-top in his perfect recall of a split second event and was way too much of a know-it-all and see-it-all witness.  And yet, the judge bought his version of events.  Despite my best effort, the judge refused to make certain inferences which would have made their testimony less credible.  Instead the judge just assumed that what they said was true without critically analyzing their version.

     Obviously I lost that motion and maybe I'm bitter.  But I do believe a jury would have had a much harder time believing the police and probably would have been more open to my arguments than the judge was.  It's on appeal now to a panel of appeals judges but not to a jury.  I can only hope they act more like a jury.

"Stand Your Ground"

     The 'stand your ground' law in the notorious case in Florida is not that different from Washington law. 

     In Florida, the law reads this way: "a person is justified in using deadly force (and does not have a duty to retreat) if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony, or to prevent imminent death or great bodily harm to himself or herself or another."  [Florida Statute Section 776.012.]
"The use of deadly force is further justified when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which the person is located." [Florida Statutes Section 782.02]

    In Washington, if someone claims a killing was done in self defense, then the jury would be instructed this way: " It is a defense to a charge of murder that the homicide was justifiable as defined in this instruction. Homicide is justifiable when committed in the lawful defense of the slayer when:
     1) the slayer reasonably believed that the person slain intended to commit a felony or to inflict death or great personal injury;
     2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
     3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of and prior to the incident.

     The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty."  [Washington Pattern Instruction #16.02]

The jury would also be instructed: "It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat."  [WPI # 16.08]  For many years this 'no duty to retreat' instruction was derisively referred to as 'the law of the Old West.'  Washington was one of many Western states that used this instruction.

The key ingredient in both Florida and Washington is the "reasonable belief."  To use the facts of the Trayvon Martin case, the state will have to convince the jury that Mr. Zimmerman's use of deadly force was not based on a reasonable belief.  Put another way, first, was he reasonable in following Martin after the 911 operator told him not to?  And more importantly, did Zimmerman reasonably believe that Trayvon Martin was about to kill him or commit a 'forcible felony' or cause great bodily harm?  Suppose that Zimmerman testifies that Martin punched him in the face or pushed him away, or even kicked him.  Is that sufficient for Zimmerman to reasonably believe Martin would kill him or cause great bodily harm?  Preventing a bloody nose or a black eye do not seem to be sufficiently threatening so as to justify deadly force, i.e., pulling out a gun and shooting.

I have had several murder trials where deadly force was used in a situation where some force would have been justifiable.  In one case, my client agreed to leave the bar and face a bully who was tormenting him.  They began a fistfight.  Then during the tussle, my client pulled a steak knife from his sock and began stabbing his opponent until the fight broke up.  The other man died of his wounds two weeks later.  Two juries heard this case (1st one reversed on appeal) and both convicted. 

Another case involved a client sleeping in his room.  His mother's boyfriend, a drunk and a bully, suddenly burst into the sleeper's room and began a fight.  My client pulled out a large kitchen knife he kept in his room and cut him more than a dozen times, killing him.  Some of the wounds were 'defensive'--to the hand and fingers, so a murder charge was filed.  The first jury voted 7-5 to acquit but could not reach a decision.  The re-trial jury convicted him of the lesser included offense of manslaughter.  And a third case involved a client who got into a fight near his home with his sister's ex-boyfriend.  When the ex-boyfriend began threatening to kill my client, he ran into his house got a .45 caliber gun and shot the ex-boyfriend from the front porch about 6-8 times.  The jury convicted him but said if he had only fired one time, they might have acquitted.

The similarity in the three cases is that the jury probably found that the force used was greater than necessary.  Washington law adds the requirement that the force be what a "reasonably prudent person" would use, but arguably the term "reasonable belief" in Florida can encompass that. 

The biggest difference may be the jury.  On the same facts, juries will differ in deciding what is "reasonable."  Stereotypically, in the South, or in rural areas, there is more tolerance for excessive force in self defense, but not always.  Another major factor in the Florida case will be Zimmerman's credibility and how he does on cross examination.  Since there are no other eyewitnesses, his version will largely be uncontested--except for the 911 calls.  A well prepared defendant will be advised to avoid contradicting those calls. 

In the end, the law that applies in Florida will not be that different from what is applied here in Washington.  Since the details of Zimmerman's story is not publicly known, there is no way to predict what the jury will do.  Whatever they do, it'll hit the fan hard.

  

Gun in Backpack Case: Parents' Assault Charge is Political

When a child is severely injured by another child's possession of a gun, as happened recently in Kitsap County, some parent is probably at fault as well. However, that does not mean the parent is liable to be prosecuted for assault. The charge of assault in the third degree against the mother and her boyfriend who owned the gun distorts the law and is a political charge.

To be guilty of third degree assault requires a showing that the defendant's conduct caused bodily harm accompanied by substantial pain. In virtually all cases of assault with a weapon, the defendant is the one who wielded the weapon. To be sure, one could be an accomplice to the assault, but that person would need to have aided or abetted the crime of assault by actively encouraging, helping, or assisting the assault in some way. Even the police concede that the parent did not place the gun in the boy's backpack nor did the parent tell the boy to go use the gun on someone. The parent was negligent, even reckless, in leaving a loaded gun on a desk, but in no way did their conduct cause the injury, as criminal cases require causation.

Criminal liability cannot rely on a 'hole-in-the-bucket' chain of events to create liability. If parents can be held to answer for an assault here, then the slope is extremely slippery. For example, is a person committing the crime of assisting a suicide if they forget a legally prescribed bottle of oxycodone is in the family medicine cabinet and a depressed young teen finds it and overdoses on it? Or, if a cook leaves a very sharp kitchen knife on the counter and his known, mentally ill nephew grabs it and stabs someone with it, is the cook guilty of assault, too? No of course not! The cook did not commit the assault as there were intervening events between his act and the act of assault. Similarly, the conduct here--leaving a loaded gun on a desk--could have led to any number of outcomes, some bad and many other inconsequential ones which harm no one.

Causation in criminal cases has two components: legal cause and factual cause. The Washington Court Of Appeals in the case of State v. Christman, 160 Wn. App. 741, 753 (2011) is instructive. There, the defendant provided a friend a few methadone pills at a party and the friend died. The defendant was convicted of a "controlled substance homicide" and his conduct was considered a factual or proximate cause of the friend's death, even though the friend's death was also caused by the alcohol and methamphetamine he got elsewhere. Factual or proximate cause means: in its factual context, as “a cause which in a direct sequence unbroken by any new superseding cause, produces the injury complained of and without which such injury would not have happened."

In the Christman case, the defendant's act of giving the controlled substance (methadone) led directly to his friend's death. In contrast, in the Kitsap case, the parent's negligence in leaving a loaded gun in the house, required the child to find it, pick it up, place it in his backpack in a certain way, take it to school, then slam the backpack down in such a way as to discharge the firearm, and thereby wound the nearby schoolgirl. There are four or more intervening steps required here between the conduct and the end result. It is not unbroken. Obviously if the mother or boyfriend had placed the loaded gun in his backpack to ensure that it would go off at the slightest jostle, perhaps then it might be a factual cause.

Even if one stretches the concept of factual cause to include this conduct, then legal cause should slam the door shut. Legal cause means causation by which the court weighs policy considerations in cases where a defendant's act is so removed and attenuated from the result that perhaps liability ought not attach. If reckless endangerment were charged here, there is a good argument that the parent's conduct recklessly endangered the safety of people by leaving a loaded gun around. However, to say that the parent is guilty of an assault ignores the long history of the specific and well known acts that comprise an assault. In short, the parent did not point, shoot or possess the gun at the time the girl was shot. The parent was not present nor did the parent encourage it or actively assist it. None of the traditional acts constituting an assault were present. The parent's conduct, albeit grossly negligent, is not the conduct that led inevitably to the girl's wound. That is why legal cause also does not exist for an assault charge against the mother or her boyfriend.

In the end the mother's and boyfriends actions are too attenuated for an assault charge to lie. But this particular pair is easy to pick on. Presumably they are poor and uneducated, and both have criminal records. What is more, the prosecutor looks good to the community, as its three-piece-suited protector. This case is in sharp contrast with a more recent one in Marysville. There, a very young child grabbed his father's gun out of the glove box, and shot his sister to death, while they were left unattended in the family car by the parents who were nearby. His father happens to be a police officer. Will he be charged with negligent homicide? That may be the better test case, as his negligence is not as attenuated. He was present, he left the gun loaded and easily accessible, and his supervision of young children was wanting. The chain of events is much shorter. Still, prosecutors are loathe to charge police officers and juries tend to let them off. We shall see. . .

Cambodia: Justice Delayed May Mean Justice Denied

I spent the month of November touring Vietnam and Cambodia. Despite our tragic and arrogant war in SE Asia, the people in both countries are welcoming. Of course many are too young to have their own memories and now rely on the history they've learned in school or from the government, and some simply don't know much at all. But even if they only knew the propaganda, it didn't seem to matter, because they seemed to like us Americans. The cynic says: 'it's just the money, they like.' But I thought their welcomes were genuine.

In Vietnam there was a definite pride in believing they had defeated the so-called 'paper tiger,' the USA, in what they refer to as the "American War." I personally crawled in one of the Cu-Chi tunnels. In 10 minutes I was dripping in sweat and glad to get out. They lived down there! No question about how determined an opponent the Viet Cong had to be. We also toured the infamous 'Hanoi Hilton,' where Senator McCain and others were imprisoned during the war. The structure was originally built by the French to imprison Vietnamese rebels 100 years ago. How the wheel of history turns. For it was strange to watch the government approved video there, which showed the American POW's performing calisthenics and eating a lavish Christmas dinner, even with bottles of beer on the table. That version makes Fox News look accurate. And yet, a former American POW later became our first ambassador to Vietnam in the 1990's. Another curious turn of that wheel of history.

At the Presidential Palace in Saigon (aka Ho Chi Minh City), the guide kept referring to America as "the enemy." Later, I asked our guide about that and he said that is the official lecture he must give. He also confided that his father worked for the Americans during the war and that his father first taught him English. Certainly he bore no animosity toward us.

Cambodia is another story. They have a tragic history. In part due to our bombing during the war in the 1970's, we managed to alienate the Cambodians and drive them into the Khmer Rouge's arms. Cambodia's communists were Chinese allies, who drove out the West-sympathizing regime in 1975. Unbelievably, as soon as they marched on Phnom Penh, they cleared the city of all its residents and began a horrific prison camp system. Out of 8-9 million Cambodians, about 1.7 million were killed by the Khmer Rouge, until Vietnam invaded in 1979 and took over. The Khmer Rouge fought a guerilla war for years, which was known as Vietnam's 'Vietnam!' In 1998 the infamous Pol Pot died, and a few years later, the Khmer Rouge finally ceased their jungle warfare along the border with Thailand. Not until about 2003 did Cambodia safely open to Western tourists.

Now to their immense credit, the Cambodians share this tragic history with the world. One of the former killing fields is a major tourist destination. Their openness and honesty about the murderous past is amazing. We also saw the terrible prison at Tuol Sleng, housed in a former school, where barbed wire still covers the open hallways of the upper floors, added to prevent prisoner suicides. Out of about 20,000 inmates, less than 10 survived. One of the survivors was an artist whose gut wrenching paintings of prison life and death are displayed at Tuol Sleng. Ironically, the only person to be convicted of war crimes in Cambodia so far is the prison's warden, known as Comrade Duch. He confessed to his many sins and is serving a prison sentence.

Sadly, and only as recently as November 2011, have three additional perpetrators of this genocide been put on trial. Cambodia originally asked the United Nations and the international community to help set up a tribunal into the genocide in the mid-1990s. A joint tribunal was finally established in 2006 following long drawn-out negotiations between the Phnom Penh government and the UN. Now the three defendants (one of whom was Pol Pot's right hand man, Nuon Chea, known then as 'Brother Number Two') are in their 80's and may not outlive their trial, much less get punished. We learned that the core problem is that the Cambodian government is badly corrupt and too intertwined with former Khmer Rouge power brokers. Due to this, it remains to be seen where this slow march to justice will end up.

Nonetheless, Cambodia is a beautiful country. I think of Angkhor Wat and its beautiful corn cob towers, the dramatic carved stone faces of Angkhor Thom and the immense Kapok trees whose roots intertwine with the ruins at Te Prohm. Tonle Sap Lake (largest lake in SE Asia) is another extraordinary place with a floating village and fantastic bird life. It is worth touring this country and meeting its people who are beginning to pull themselves up from their past. Tourism is their lifeblood, so go there and spend money--it can only help at this point.

Pleading Guilty

As much as defense attorneys like to brag about their courtroom victories, there is less boasting about a good plea bargain. Yet out of my 50 or so new cases a year, the vast bulk of my cases--over 90%--end up in plea bargains. This percentage holds for nearly the entire community of defense lawyers.

One obvious reason is that very few defendants are falsely accused. That is, consider the most frequent case: driving under the influence (DUI). Rarely is a person charged with DUI who was not driving and drinking some alcohol. Whether the prosecutor can prove the person is 'under the influence' of alcohol is almost always the key question. This is a narrow space to maneuver in for the defense. 'Under the influence' is classically defined as: "whether the ability to drive is lessened in any appreciable degree." In the alternative, the prosecutor can prove that the breath test was .08 or higher, without ever having to prove the driver was actually 'under the influence.' In the latter case, there may be technical attacks on the accuracy or validity of the breath test. But if those are unsuccessful, then the higher the reading is over .08. the harder the case is to win. And few cases are filed where the breath test is under .08.
Similarly, if there is no breath test, the prosecutor has a professional witness in the person of 'Officer Friendly' whom the jurors tend to believe has no axe to grind. The officer would have given various 'field sobriety tests' and made numerous, detailed observations. If the driving is bad, then it is a tough case even without a breath test. The bottom line is that an offer of negligent driving in the first degree or reckless driving is hard to turn down.

One reason prosecutors offer plea bargains is that they have a staggering work load, which continues to rise with budget cuts. They have to save their resources for the most serious cases and the ones that are easiest to prove. For example, I had a felony assault case, stemming from a fight at a rock concert. My client was accused of starting it, although he and his brother-witness said the 'victim' started it. In any event, the fight ended when my client took a nasty bite out of the 'victim.' We argued with the prosecutor that this was self defense against a larger, equally drunk opponent. The prosecutor countered that it was an unreasonable use of force. In the end we got a misdemeanor assault plea bargain after we un-covered the 'victim's' prior record for felony assault. This 'proof ' problem got the result we wanted. The client kept his job and would not lose his civil rights, but he was held responsible for the out-of-pocket bills of the 'victim.'

A third reason plea bargains are popular is that the alternative of trial for many defendants is too risky. The greater the potential punishment for going to trial and losing, the greater the likelihood for a deal. As longs as there is a reduction in the charge, or a reasonable sentencing recommendation from the prosecutor, then a plea may be entered. In federal court, where the prosecution rarely has 'proof problems,' the risk of trial is very high. So often in federal drug or gun cases, there is also mandatory minimum time looming. A person charged with growing 100 or more marijuana plants is eligible for a five year minimum sentence after losing a trial. Typically the defense has to seek some bargain to get around the five year minimum which a judge almost never can reduce after a trial. Hence a deal is struck.

What if a defendant says he is innocent but still wants to plead guilty given the uncertainty of trial? I hate that. For starters, I usually tell my clients that I don't like pleading them guilty if they don't think they are guilty. Secondly, there is no such plea as 'nolo contendere' in Washington. The only pleas are "guilty, not guilty or not guilty by reason of insanity." "Nolo contendere,' meaning 'no contest,' exists in some jurisdictions. But it still means you get sentenced and have a record.

In Washington there is one other possible way to plead 'guilty.' It is known as an Alford plea. It is based on the case of North Carolina v. Alford where the defendant was facing the death penalty for murder. He did not believe he was guilty of murder but he wanted to take advantage of the prosecutor's promise not to request the death penalty. So he pled 'guilty,' but in his statement for the plea, he said he 'did not commit the murder' but felt that due to the strong evidence against him, a jury would likely find him guilty, so he was pleading guilty to avoid the death penalty. The Supreme Court upheld his reason and statement for 'pleading guilty.' But like the 'nolo contendere' plea, a person who enters an Alford plea still has the same record and gets sentenced by a judge.

In many cases, prosecutors will not accept an Alford plea for a variety of reasons. For one, it deprives the victim of a a measure of satisfaction. It also undercuts any treatment condition the prosecutor may demand. Many prosecutors also believe, incorrectly I would add, that an Alford plea is easier to withdraw from. From my point of view, an Alford plea can be harmful at sentencing. After all, when facing a sentencing judge, it may mitigate the punishment where the defendant accepts responsibility for the crime and shows some remorse. If he entered an Alford plea, it is much harder to ask for a lesser sentence on that ground. So, when entering an Alford plea, the defendant should not expect something less than what the prosecutor recommends.

Sometimes a good plea bargain has to be earned by the lawyer raising legal issues in motions or preparing for trial. This might reveal weaknesses in the prosecutor's case such that an offer is made before a final decision. On the other hand, many prosecutors will threaten dire consequences, such as no more bargaining, if a pre-trial motion is filed. Despite this warning, many defendants still believe that their lawyers must file motions and make the prosecutor work to get the best possible bargains. This can be true but it depends on the case and the prosecutor.

A common concern for defendants is that usually there is no legal guarantee that the judge will follow the plea bargain at sentencing. In most cases, this fear is overblown as judges show their support for plea bargains by nearly always following them. After all, it clears the docket of thousands of cases each year. Yet now and then a judge does not like a particular plea bargain. When this happens, it typically involves a murder or rape charge with a very low sentence or extreme reduction. A good lawyer should know their case has that problem and warn the defendant in that instance before the plea is entered.

In the end, plea bargains are made frequently as prosecutors, defendants, and the courts benefit from them. Be wary of any lawyer who says he only fights and goes to trial on all of his cases.

What Can Parents Do With a Wild Teenager?

Recently a former client called and asked my advice about what his rights were with respect to his out-of-control 16 year-old. The boy is skipping school, smoking marijuana, staying out all night and generally disregarding his parents. Legally, parents have very limited options for in-home discipline: withdrawal of privileges, strict house rules, counselling, and calling the police. They can't throw a minor (under 18) out into the streets.

In serious cases, parents can petition the juvenile court when a child (under 18) is in need or at risk. If the child is "beyond the control of the parent" and is endangering the health, safety or welfare of the child or another person, the parent can ask for juvenile court intervention for this "child in need of services." Likewise, if a child has been absent from home for more than 72 hours or has a substance abuse problem which is not subject to a criminal case, a petition for an at-risk child may be made. These petitions are under the Family Reconciliation Act, found at chapter 13.32A. of the Revised Code of Washington. Juvenile Court in King County and the other counties will have more information. For children who do not attend school, the school district can file a truancy petition under RCW chapter 28A.225.


In days gone by, our parents or grandparents might suggest taking the 16 year-old 'behind the woodshed' for a whipping. Many people believe that's what we need more of. However, the use of physical force against a child is limited.


Under state law, "the physical discipline of a child is not unlawful when it is reasonable and moderate when it is inflicted by . . . a parent . . . for purposes of restraining or correcting a child." (RCW 9A.16.100) That statute bans certain punishments such as "throwing, kicking, burning, cutting, and striking with a closed fist." The Legislature also has banned "interfering with the child's breathing" and "threatening with a deadly weapon." And of course, it prohibits the "shaking of a child under three." The law further warns that these prohibitions are "illustrative of unreasonable actions" and they are not "exclusive." What is more, the catchall provision bans: "doing any other act which is likely to cause and does cause bodily harm greater than transient pain or minor temporary marks." The "age, size and condition of the child and location of the injury" are used to determine whether the bodily harm is reasonable and moderate.


I had a case a few years ago of a well respected father who was an engineer and born in another country. He had a disrespectful 17 year-old son. To teach the impertinent son a lesson, he decided to cane him. Caning is a time honored form of discipline in many cultures. The offender (almost always male) would drop his pants and be hit with a cane, switch, paddle or other implement on his behind or on back of the thighs. In my case, the father used the flat side of a wooden ceremonial sword and hit the back of his son's thighs 5 times or so. Later, at school he complained of pain. He was sent to the school nurse's office, where long, red welts were observed on his legs. The school contacted the police who later arrested and booked my client for a felony assault with a deadly weapon.


The 17 year-old was bigger than his father and after a week, the welts were gone. He did not want to prosecute his father, because he loved him and felt he deserved it. Nonetheless, the prosecutor's office would not dismiss the case despite my argument that this was "reasonable parental discipline" given the age, size and transient nature of the injury. I thought a jury would acquit him. However, I could not promise that and if we lost, he was looking at a minimum sentence of 15 months due to the 'deadly weapon.' His family did not want a trial. So we ended up pleading to a misdemeanor assault and he was sentenced to do some community service work.


As for the client who called I advised that physical discipline is a risky option. Instead, I told him to set very clear rules and expectations in writing. For example, for every cut class, his son would lose a week of allowance. His bedroom could be subject to random, parental searches with confiscation of contraband and with the possibility of calling the police as well. In serious drug cases, the petitions to juvenile court or commitment to a locked treatment facility are also possibilities.

These 'tough love' measures may or may not be effective. I know that well. . . Time and maturity are often the only cure.

Getaway Drivers and Other Accomplices

Even if you don't go in the bank but wait outside in the car, if you know your buddy is armed and goes in the bank, you can be punished just as harshly. This is known as accomplice liability.


The formal law is roughly as follows: If you solicit, encourage, command or request another person to commit a crime, you are as guilty as the one who actually does it. Obviously if you directly aid or assist in the planning or commission of the crime, you are also equally liable for the crime. You do not have to be present at the scene of the crime to be guilty. On the other hand, your mere presence at the crime scene and knowledge of the crime alone are not enough. You have to do something, or encourage, aid, or by your presence, support or encourage THE CRIME. If you are just there but also acting as a 'lookout,' then you are an accomplice.


I capitalized THE CRIME, since the state has to prove that you are involved in the particular crime charged. For example, if you agree to be the lookout for a burglary and your buddy heads toward the house and then assaults someone on the street on the way into the house, you would not be liable for the assault. It is a more complicated question if the person going in the house, assaults or kills someone inside since prosecutors might consider that part of the burglary crime.


In the drive-by shooting case from Ballard H.S. in the mid-1990's, the driver was convicted of murder in the second degree because he "knowingly facilitated the drive-by shooting." The prosecutor argued that old favorite: "in for a dime, in for a dollar." And on appeal the driver argued the jury instructions were misleading and the prosecutor's argument was simplistic and unfair. This area of law is so complex that his appeals went on until just last month. He had won a new trial at one point, but then the U.S. Supreme Court reversed that.


I am involved in a murder case, where I represent an uncharged suspect. In that same case, the alleged driver to the murder scene is currently on trial. His defense is that he had no idea that the two men in his car would later shoot the victim in front of a bar. The state probably can prove he had parked the car some distance away while he waited in the car. So the question will be whether they can prove he did so, knowing of their design to shoot when they left the car.


Another case I have is that of a young man accused of starting a fight outside a bar, where the 'victim' voluntarily went outside to confront him. Ordinarily that would be a misdemeanor assault. (A mutual fight is no defense for the person who threw the first punch.) However, when the two were grappling, my client's friend began punching and kicking the victim. The friend's blows caused the victim a fractured nose and cheek bone. My client did not do any serious damage. Yet my client is charged with a felony assault in the second degree. There, the issue will be if they were acting in concert or if the friend, unbidden by my client, just jumped in and acted on his own.


In federal court, the prosecutors frequently charge conspiracy crimes. In such a case, a person can be guilty when (1) two or more people agree to commit a crime, (2) when the accused joins this group knowing of its criminal purpose and intending to help it, and (3) someone performs an overt act for the purpose of carrying out the conspiracy. Take a mortgage fraud scheme, where people lie on their applications to get the loan. And then, never intending to live there, turn the property over to others who try to flip it at a higher price. Even if the person who filled out the application never benefitted from the scheme, a conspiracy charge would lie.

Another problem for co-conspirators, for example, is the schlep who agrees to move the hockey bag with marijuana it over the border. The schlep may be facing as much time as the owners of the dope. I like to explain this with the Macdonald's analogy. Imagine if making burgers were illegal like cocaine is. Then if you agree to flip some burgers for one of the golden arch stores, you are potentially liable for all of the whole corporate output. After all, everyone knows the signs say 'so many billions sold. . .' Of course the schlep could say he didn't know there were 100's of hockey bags involved. Perhaps. . .

In short, choose your friends carefully and don't do any favors such as carrying that bundle across the border . . .

Should the Government Get to Re-Try Roger Clemens?

Just today a federal judge granted a mistrial for Roger Clemens in his perjury and obstruction trial in Washington, D.C. During the federal government's case, it began playing a video recording of Clemens' testimony before Congress (in which he allegedly lied because he told them he never took steroids or other banned substances.) In that video were comments by a Congressman referring to Andy Petitte's wife's statement in which she repeated that her husband told her that Clemens admitted to taking the substances. Before trial, the judge had ruled that her repetition of what her husband told her was not admissible. It was clearly inadmissible hearsay. (However, Andy Petitte can testify to what Clemens told him, since that is proper evidence of a party's direct admission.)

Ostensibly the unredacted Congressman's comment was an oversight by the prosecutors. However, if Clemens' lawyers can show that it was not a mistake but an intentional act, he could get the case dismissed under the Double Jeopardy clause. Ordinarily, under a 1982 U.S. Supreme Court case, Oregon v. Kennedy, when a mistrial is granted after a defendant's motion (as here), the defendant cannot then bar a second trial. However, if the prosecutors can be proven to have intended to "provoke the defendant into moving for a mistrial," then a double jeopardy dismissal could be granted. Obviously it will be hard to show their oversight in Clemens' case was intentional. Without a clear pattern of violating the court's rulings, intentional conduct will not be shown--short of a prosecutor admitting it!

The real question is: "Should the government be trying Roger Clemens at all?" Many people have derided the use of 'precious government resources' in going after a now retired, well paid athlete who never harmed anyone (save for a few batters.) After all, aren't there more important crimes to prosecute than lying to Congress? For starters, if they didn't try him, wouldn't Barry Bonds' supporters be crying foul (not fair?) And what about Martha Stewart, who was convicted of lying to federal investigators, wouldn't her fans bemoan federal waffling?

And what are federal authorities supposed to do? Let a few lies go and say "Ok, it's only baseball, and Congress shouldn't be concerned about some ballplayers doping themselves anyway!" No, they couldn't let it go. He's too well known in sports and was really one of the 'great' players like Bonds. It would smack of favoritism or elitism or whatever people think lets the rich and the famous off the hook.

Nope, the goverment should re-try Roger Clemens.

In Memory of the Sweetest Client I Ever Had

My friend and former client, Leon, just passed away. He had been sick and suffering from endstage lung cancer for the last few months. Yet he always could laugh. Just recently we were watching the basketball playoffs together at the nursing home, and despite his pain, we made jokes about the awful looking food sitting on his tray that he had no appetite for.

I met him in January 1984 when I was a public defender. He was charged with assault after he was attacked and defended himself a bit too well. The victim was a bully and had been harassing Leon all night at a CD tavern. When Leon finally went outside, more to leave than to fight, the bully came at him punching. In the scrum, he grabbed Leon's ankles and tried to take him down. Leon pulled a steak knife from his sock and began stabbing the aggressor in the back while the bully gripped his ankles. When they were pulled apart, the victim collapsed.

About a month later, the victim died, and Leon was charged with murder in the second degree. We raised self defense at trial but the jury disagreed and convicted him. Some of the jurors, who grew to like Leon, came to his sentencing but he was still sent to prison for 20 years to life. On the appeal my buddy Mike Filipovic did the bulk of the work and we won Leon a new trial. That's because the self defense instructions the judge read to the jury were improper. During the two years of the appeal, while in prison, Leon sobered up and luckily missed the raging crack epidemic that hit the inner city.

Before his new trial we convinced the judge to release him pending trial, since he had such a perfect prison record and had no record of violence before the 1984 case. This time Mike helped me with the second trial and we were up against a persuasive prosecutor, Ray McFarland (who has since become a friend and fellow defense attorney.) Despite our best effort at that second trial, the jury once again would not let Leon off.

But we weren't done. Back in those days, judges had more discretion at sentencing. And our trial judge, the Honorable Robert Elston, was a stickler for rules and the law. However, he was also an independent thinker. Somehow we convinced him that Leon had rehabilitated himself in prison, was no longer drinking and not a threat to society. Amazingly, he put Leon on probation for murder.

And Leon did not disappoint us. After a number of uneventful years on probation, his case was closed. Over the next 20 years or so I would see Leon every so often. He would come to my office and we'd go to lunch or I'd 'loan' him some money. Once he hauled some trash away from my house for me. He got married and divorced and always seemed to have a lot of friends, especially among the ladies. About 5 years ago he moved back to Texas where he was from so he could be near his sister and other family. For reasons I never understood, that did not work out so he moved back to Seattle.

His last two years or so were rough. I would go see him at the hospital or his public housing apartment down on Holly Park. I would try to bring him his favorite 'pulled pork' sandwich and we'd eat lunch together. Church ladies, in-home careworkers, and others always seemed to be hovering over Leon's bed. He'd flirt with them all and everyone loved Leon. He was a guy who reached out to people. He seemed so full of love--it's hard to believe he could ever harm a fly let alone kill another human being.

In the end, Leon's beauty is that he proved how a man can better himself. I will never forget him.

Speedy Justice after the Egyptian Revolution?

We are all happy to see Hosni Mubarak go. When I was in Egypt late last year, people grumbled about the 'old pharoah,' but no one hinted at what would happen this year. And now the revolution kicks in with the nitty gritty: trials of the deposed leaders.



The "once feared and powerful" Habib el-Adly, Interior minister and head of the hated security apparatus of the deposed regime, came into court and pled not guilty to corruption charges. The allegation is that he sold a piece of public land to a contractor for personal gain. This kind of corruption was apparently endemic in the Mubarak era. No doubt people who stuffed their pockets in public jobs should be prosecuted.



But so fast. . . the new regime has been in power only since February 11, and an indictment has already been prepared? Does this bode well for due process as we understand it? It seems typical of many revolutions to rush to judgment, particulary harsh ones for the former officer-holders. I think of Madame Defarge knitting while the nobles of the 'ancien regime' had their heads lopped off in short order.



During el-Adly's 'arraignment,' one of the lawyers was screaming insults at the accused. Now, I've had prosecutors lambast my clients but not by screaming at an arraignment. Luckily the judge displayed a cooler head. He quickly shut the lawyer up, calmed down the proceedings, and then postponed it a month--to allow the defense lawyers to review the documents.



This is speedy justice compared to our tortuous system. To begin with, it would have taken U.S. prosecutors months not 2 weeks to prepare an indictment this important, and then the defendant would be given ample time to review the prosecutor's case before going to trial. Although slow and deliberate, our rules require a speedy trial, which more often than not the accused agrees to extend to allow for more time to investigate the case. Justice cannot be speedy if the accused needs more time.



Speedy justice really means hurried justice which usually means no justice at all. Besides, speedy justice allows emotion to prevail, not law and reason. So the pace of events in the Egyptian court portends trouble. In the meantime, Egypt is working out a new constitution and a system to ensure fair elections. I hope they reform their society with all deliberate speed, but not in a rush to judgment.

Paranoia Strikes Deep

Recently I represented a 70 year old man who had been a teacher and a businessman for many years. He gave back to the community by volunteering as an umpire and referee for youth sports. He was not the kind of person I expected to need my help. And yet. . .


He was working as a substitute teacher for a second grade class. One of the boys in his class would not return to his seat, so he asked him to come forward. He asked the boy if he'd like to be picked up by his ears. He promised it wouldn't hurt. So he told the boy to grip his wrists as hard as he could and use his brain power and concentrate. With the small boy putting all his weight on the teacher's wrists, the teacher used the forefinger and thumb on each hand to "pinch' the boy's ears and lift him a few inches off the ground. It's a trick he has used for many years: young kids think he is lifting them by the ears when in fact he is using their weight placed on his wrists to lift them. It is perfectly harmless. It is a way to give wayward boys some attention and to keep order in the room.


While he was doing this, apparently some teacher looked through the door window and complained to the principal about this. Without further ado, the principal relieved my client of his duties and sent him home. The kids in class later 'confirmed' he lifted the boy by his ears, even though the boy told the principal his ears did not hurt. The prinicipal called the police.


The police wanted to talk to my client. Ordinarily, I am reluctant to let clients talk to the police. For one, it rarely helps. The police will be filing their report with the prosecutor no matter what the client says, even if a valid defense is raised. Secondly, much of the time clients end up making statements that, shall we say, do not amount to a valid defense. In other words, they help make the case against them. And third, the police can misconstrue, misunderstand or simply get what my clients say wrong. There is also the problem that some clients lie and make it worse. So, the soundest advice is silence. Silence cannot be misconstrued and silence cannot later be used to raise an inference of guilt on account of the Fifth Amendment. In short, silence is golden.


However, in this case, being charged would be a real problem for my client. The school district that used his substitute services immediately removed him from their list of substitutes on the ground that he would be criminally charged. And the State Superintendent of Public Instruction (SPI) started an investigation, which threatens his certification.


Luckily, the police officer investigating the case was reasonable and willing to hold off any decision to send the case for filing to the prosecutor until she heard from my client. With the possibility of no referral of charges, I talked to my client. He told me his story and his background and I believed him. He was innocent and articulate enough to be able to convince a police officer of that. I didn't think he could hurt his case, only help it.


We went to see the police officer at her precinct, and after a very cordial conversation, she told us she did not think charges would be filed. Later she told us that the prosecutor reviewed the reports and agreed not to charge. Although not an acquittal by a jury, this was an even better result since no court record of a charge would be created.


Of course now my client has to confront the SPI investigation as well as petition to be placed back on the school district's list. But at least he can claim exoneration in the criminal investigation.


The bigger question: have we, as a nation, gotten so paranoid that we call in the police at every turn? Here was an experienced teacher and a wonderfully decent man who was shabbily treated by officious, over-protective administrators. Sure, we have to protect our children and sure, there are bad people out there. But how about a little common sense? Not every touch is deviant! After all, state law holds that "the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child." (RCW 9A.16.100.)

Maybe the principal should have looked a this law and then taken a detailed story from my client as the police were willing to do. But the principal did not and called the police instead. So I conclude with apologies to Buffalo Springfield, "paranoia strikes deep, into your life it will creep, it starts when you're always afraid . ."

The Inquest: Should the officer be charged?

Let me start by emphasizing that I am not a prosecutor and have never been one, except for a summer stint while in law school. But as a criminal defense lawyer, I have been involved in my share of murder cases. So I am coming from that angle.
I did not attend the recent Inquest. My information is based on what The Seattle Times and other publications printed. My understanding is that the officer saw this guy, stopped his car, ordered him to drop his knife, began approaching him and shot him four times, killing him. The victim appeared to have turned toward the officer but no witness described an aggressive move by the victim. Even the officer could only describe an aggessive "look." After all, only 4 seconds elapsed from the time he got out of his car until he shot him.
The Inquest jury of eight that heard this case was not unanimous. However on this key question: "Based on the available information at the time Officer Birk fired his weapon, did John T. Williams then pose an imminent threat of serious physical harm to Officer Birk?" Four jurors said no; three answered unknown and one said yes. This is the type of question a jury in a criminal case would ultimately answer: was this killing justified by the lawful use of force? (i.e, self defense.) My interpretation of the response to this question is that only one juror out of eight thought the killing was justified. According to the jury, they applied the beyond a reasonable doubt standard when they answered the questions posed. That is the same standard as a criminal case.
If a killing is not justified, shouldn't a jury of 12 decide if it is murder? I have handled several murder cases where we raised self defense because the other person, the victim, had started the fight. In one case, my client was punched several times and then in the scuffle drew a knife from his sock and began stabbing his opponent while they grappled. They were pulled apart and later the victim died. Two different juries found him guilty. (He won a second trial after a successful appeal.) Another case involved a man with a long record of violent crime who threatened to kill my client who ran into his house, got his gun and shot the victim 7-8 times from his porch, as the victim kept screaming "I'll kill you," though the victim had no weapon in his hand. In both cases, the juries felt that excessive force was used. They were instructed on the law which required that the lawful force employed be "not more than necessary." After the trials of those cases, the jurors all said my clients had a right to use self defense, but that they went too far.
The officer in the recent inquest went too far as well. He shot someone who was not an imminent threat four times. Wasn't that excessive force, or more force than necessary? If he were not a police officer, he would probably be prosecuted. However, the law gives him more protection. Under RCW 9A.16.040(3): "A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section." To be sure, most of the Inquest jurors agreed that he believed he was under an imminent threat. In other words, he was not acting in bad faith. What is more this law defines an imminent threat as "displays a weapon in a manner that could reasonably be construed as threatening." This statute will probably insulate the officer from prosecution.
The recent history of juries rejecting criminal prosecutions of police will also influence the prosecutor. Even where an officer is caught on video beating up a teenage girl, it shows how hard it is to get juries to convict the police of crimes. Of course, the officer in the Inquest case is likely to be sued, so there will be some civil justice.

The Advantage of the Well Connected Snitch.

Recently I had a client go before a federal judge for sentencing on a mortgage fraud case. He was sentenced to 15 months in prison. Here was a guy who had no prior record whatsoever. Everyone who knew him liked and trusted him. Since the crime was completed several years ago, he found a new job and his boss loved him. And yet, despite my best effort to save him from prison, and to save his job, the judge sent him away. The judge relied on the seriousness of the crime to deny a lesser sentence. No question it was serious: he may have to pay back as much as $915,000 to the original lenders for his involvement.

The fraud worked this way: the con artist/businessman leader of the fraud originally convinced his friends and relatives he had a way to make money in the exploding real estate market of the early part of this decade. He would have them 'invest' in real estate by agreeing to sign loan papers indicating they were going to buy and occupy a home. This would enable them to get the lowest possible loan rate, as banks historically believed that owner/occupants were the safest borrowers. The catch (and the big lie on all the loan applications) was that they were not really owner/occupants. Instead the con artist would actually pay them to just use their name and good credit. They were "straw buyers." Then the con artist would pay more than the asking price to the seller, claiming it went to a fund to improve the property and pay the mortgage. But he actually siphoned off the money for his own use.

When this 'fund' began to dwindle, he would recruit another person to "buy" the property at a higher price. Up to 2008, the spiralling market permitted such quick flips. Many people made a lot of money this way. And the banks and lenders never seemed to scrutinize the borrowers or their applications much. Since real estate prices were always going up, it was all about the property and not the borrower. And anyway, the lenders did not hold onto the loans, but sold them off to other investors. These were then sold in bulk as collaterized debt obligations to other investors. So the lenders were recklessly indifferent. (Hence a lot of bank and mortgage company failures.)

Originally my client loaned money to the con artist and was initially paid back. Then he was asked to be a buyer for two properties, knowing full well that he was lying on the loan applications because he was not occupying the property. And then he recruited two more people to be "straw buyers." He helped one "straw buyer" lie on the application form by agreeing to corroborate falsely inflated income. This was probably his worst sin. Later, when he was confronted by the feds, he confessed and told the truth.

Now many of you may say that this type of fraud has hurt our economy. And people who engage in this should be punished hard. Examples must be made and messages sent to the community that this type of fraud cannot go unpunished. This is all true but. . . why does prison have to be the answer for a serious crime? Particularly where the individual involved is remorseful, rehabilitated and has been positively contributing to society for nearly three years since the crime? We proposed a combination of community service work, 6 months of home detention and 30 days in jail. The judge rejected this for a 15 month prison sentence. Aren't we punishing ourselves by locking up positive contributors? And anyway, don't we have too many people in prison already?

Even more galling, and typical of the 'logic' of federal sentencing is the 8 month sentence of a codefendant. A codefendant the government lawyer told the judge was equally culpable with my client. That codefendant worked for a lender, was an insider and betrayed that trust. And yet because he was able to cooperate and name names at his bank (whom the government will probably charge separately) he got a lighter sentence.

That is the ultimate 'message' the court sends: If you're caught and you are sufficiently intertwined with other lawbreakers, you can optimize your position by turning on them. You will do better than less knowledgeable but equally culpable lawbreakers. Sometimes people higher up in the criminal hierarchy get lower sentences than people near the bottom who aren't as involved.

What does that have to do with punishment and rehabilitation? Actually, it has more to do with law enforcement. Since the Supreme Court reinstated judicial discretion and did away with mandatory guideline sentences, the courts look to the "purposes" of sentencing. Helping the government prosecute other people is not a "purpose" of sentencing but it is a goal of law enforcement. So in this instance, the federal judge gave the ability to help law enforcement a greater reward than rehabilitation.

Is that justice?

A Trip to a Police State

I just returned from four weeks of travel in Egypt. It was fantastic--the temples, pyramids and other sites were magnificent. The people were warm and welcoming--the mere mention of President Obama would bring high fives and fist pumps. They seem to love Americans. I say "seem" because Egypt is run by an all powerful, modern "pharoah." His family and cronies literally own the country and you have to wonder if everyone has been indoctrinated. After all, the U.S. government is a huge contributer to their military budget, not to mention nonmilitary aid.

It is also a police state. The 'Tourist and Antiquaties' (T & A) police are everywhere. Outside all but one of our hotels, the white uniformed and armed cops were stationed. All monuments had varying levels of security. Some had airport style security; others had X-ray machines; and others just had the T & A police eyeballing all of those who entered. At virtually all junctions on roads outside the cities, there were checkpoints with gates, guards and guns--big ones! Egypt has had 3 major terrorist actions since 1997: one at Luxor, one at Sharm el Sheikh and one at Taba--the latter two are on the Sinai peninsula. These were all directed at tourists. Since Egypt is dependent on tourism, their security is essential. In fact, when we travelled overland from Mt. Sinai to Sharm el Sheikh we had a plainclothes bodyguard in our van--at no expense to us. He wore a dark wool suit and carried a submachine gun on his hip. He was muscular and resembled actor, Eric Estrada. When we flattered him with his resemblence, he began smiling. Turned out to be a likable fellow.

Other T & A police would attempt to direct you to the 'good' parts of monuments. Then they would hold their palms out for some 'baksheesh.' (That's a tip or a bribe, depending on circumstances.) While we were at the Citadel--Saladin's famous walled compound on a hill overlooking central Cairo--one white uniformed fellow offered to take us on a personal tour of the old British prison where Anwar Sadat was once held. Since it was not open to the public, we paid him the 5 pound baksheesh. All too often, they wanted baksheesh just for pointing at a picture spot. We were free to decline. Locals, however, such as taxicab drivers, complained to me about police who demanded baksheesh just to let them pull over and pick up tourists.

The obvious downside is that civil liberties are not protected here. I imagine the local newspapers don't criticize the government much. To be sure, the English language ones did not. Our guides were always very defensive about their government much less their heritage. To such a degree that when I asked a guide about the possibility of human sacrifice at the Abydos monument (as reported in National Geographic) some 4,000 years ago, she denied it and replied that all sorts of misinformation is out there.

I shudder to think what political dissidents must go through. Given the fragile balance of freedom v. terrorism, it would too easy for the government to label critics as terrorists and then treat them accordingly. The U.S. government has enough trouble with that equation. In private moments with educated people such as guides, now and then they would bemoan the current regime. But it was hard to imagine a truly free, contested election in the near future there.

One advantage of a police state is that the crime rate is very low. According to the State Department site, violent crime is rare in Egypt. This is consistent with my experience there. Early in our trip I met an Egyptian who lived (ironically) in Alexandria, VA, but was visiting his mother in Cairo. He told me tourists are gold. The government protects them and people do not want to fall into disfavor with tourists. Thus he said it was safe to walk virtually anywhere--as long as you could resist the incessant attempts to sell you something.

Selling and touting can be irritants, but they are not threatening. Although every price is negotiable, except restaurant prices, once you reach an agreement on price it is respected. Of course tourists are vulnerable to overpaying, as I did in my first taxi ride. The lesson was to learn the right price for the trip and tell the driver BEFORE GETTING IN THE CAB that is what you'll pay. Even then, one time I said the 4 of us would pay 15 Egyptian pounds (~3$). The driver nodded. At the end of the ride the cabbie tried to claim 15 pounds per person. I shook my head no, gave him the agreed price and walked away. Nice try, but I felt safe in standing up for myself.

Egypt has a history that goes back about 5000 years. After about 30 centuries of rule by local Egyptians or Nubians, it was conquered or occupied by a who's who list of nations: Assyrians, Persians, Greeks, Romans, Arabs, Mamlukes, Turks, French and British, to name some. All of these people literally left their mark. Despite being a police state, it is a fascinating place to visit. Go see Egypt for yourself.

Can I Get My Rights Back?

After a person is convicted of a felony they automatically lose these civil rights: to vote, to serve on a jury, to hold public office, and to possess a firearm. Several misdemeanors that involve domestic violence also cause a person to lose the right to possess a firearm. The good news is that many people convicted of various nonviolent crimes can get their civil rights reinstated, including the right to possess a firearm..

Under Washington law, RCW 9.94A.637, if a person completes all requirements of a sentence, they are entitled to a certificate of discharge that will restore all civil rights except the right to possess a firearm. To restore the right to possess a firearm, a person must petition a court under RCW 9.41.040. And to be eligible, the crime must not be a "serious felony," as defined by RCW 9.41.010(16). That means if the person was convicted of a violent crime, various sex crimes, or a crime with a deadly weapon, the person is not eligible. So most property crimes, including theft, possession of stolen property, burglary, and drug offenses qualify..

Recently a former client of mine who was convicted of mail fraud in federal court asked if he could get his civil rights including his right to possess a firearm restored. If you have a federal conviction for a felony the short answer is "FHUGGETABOUTIT!" In truth, there is no mechanism short of a presidential pardon to get your civil rights restored following a federal felony conviction..

The U.S. Supreme Court in a convoluted way has said this much: "We express no opinion on whether a federal felon cannot have his civil rights restored under federal law. This is a complicated question, one which involves the interpretation of the federal law relating to federal civil rights, see U.S. Const., Art. I, § 2, cl. 1 (right to vote for Representatives); U.S. Const., Amdt. XVII (right to vote for Senators); 28 U.S.C. § 1865 (right to serve on a jury); consideration of the possible relevance of 18 U.S.C. § 925(c) (1988 ed., Supp. IV), which allows the Secretary of the Treasury to grant relief from the disability imposed by § 922(g); and the determination whether civil rights must be restored by an affirmative act of a Government official, . . ." Beecham v. United States, 511 U.S. 368, 373 (1994)..

In Beecham, the defendants had prior federal felony convictions, and then had their residential states "restore their civil rights, including the right to possess a firearm." They were later prosecuted under federal law for possessing firearms as convicted felons. They argued that since there was no mechanism for restoration of civil rights in federal court, the state court restorations immunized them from prosecution for being felons in possession of a firearm. The U.S. Supreme Court ruled that only the federal government could restore their civil rights since they had federal convictions. Their convictions were upheld. Conversely, if their underlying convictions were state crimes, then the restoration of gun rights by the state court would have immunized them from prosecution for felon in possession of a firearm..

Based on that case, the only hope, short of the Pres pardoning a federal felon, is to write the Sec'y of the Treasury, Tim Geithner, and see what happens. I suspect nothing..

State law not only restores rights, but certain convicted felons can have their records vacated as well under RCW 9.94A.640. The crimes have to be nonviolent and nonsex, and must be either class B (ten year maximum) or class C (5 year max) to qualify. For a class B crime, a person must be crime-free for 10 years following the date they are discharged from their sentence; for class C crimes, 5 years of crime free conduct. Similarly for certain misdemeanors, it takes a 3 year crime free period to qualify. Misdemeanors involving violence, domestic violence or driving under the influence are not eligible for vacation..

One caveat: people who receive 'deferred sentences' on misdemeanors are often told by the judge that if they comply with the sentence just imposed, their record will be clear. Wrong! Although it is true that if they successfully complete probation following a deferred sentence the case will be "dismissed," that does not mean the record will be "cleared." Without an order vacating the conviction, the Washington State Patrol (WSP) will still show a "record." The WSP "record" will show the crime and its disposition as: "dismissed." But if you get the case vacated, then a WSP record check, will come back as: "no record." And that is what you want when you apply for a job..