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.
Friday, January 21, 2011
Monday, December 13, 2010
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?
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?
Thursday, November 18, 2010
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.
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.
Friday, October 1, 2010
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..
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..
Friday, August 6, 2010
When Lawyers Get Arrested. . .
The arrest of a prominent attorney for DUI and her claim that she had a concussion and was not intoxicated reminds me of other attorneys or judges who have been arrested. You'd think, lawyers would know the drill: be nice, don't talk, ask for a lawyer.
More often than not, lawyers forget their training when arrested. That is, they try to talk their way out of trouble instead of shutting up and asking for a lawyer. In fact I heard of one lawyer, on his second DUI arrest, not only talked but he refused the breath test as well. Very dumb, as refusal is the worst option. It carries a one year revocation of license and juries later hear about and hold it against the accused.
Personally I have represented lawyers who were busted, most commonly for DUI. One lawyer was a perfect gentleman with a drinking problem. He was a public defender and had two separate DUI cases. For one we set up the treatment option, known as a deferred prosecution. This allows the case to remain pending for five years, and if the treatment is completed with no other arrests or alcohol violations, the case is dismissed. He was successful. On his other case, I managed to get it dismissed due to a speedy trial violation. He was quiet, unassuming and followed my advice.
Then there are the lawyers who talk themselves into trouble. I teach criminal trial advocacy at a local law school, and one of my former students hired me. He got arrested when a friend of his was being investigated for DUI. He had walked over to the scene of his friend's arrest and tried to intervene. He kept pushing his card into the officer's hand and tried to engage him in a conversation. The officer kept telling him to leave the scene of the investigation. Finally, after several warnings to leave, the officer arrested him for obstruction. This was a valid arrest, since for safety and other reasons, the police are entitled to be left alone when they are working a case. I had to beg the prosecutor for a dispositional continuance (good behavior, etc., and then case dismissed) by pointing out that he was still an over-exuberant law student.
A much less typical but amazing case was that of another law student. He was studying for a final exam and was disturbed by some teenagers riding dirt bikes in a vacant lot next to his apartment. He asked them to be quiet and they wouldn't. So he went back to his apartment and came down with a tiny keyring gun, that actually fired a real, but very small bullet. He pointed it in the air at the bike riders and they, being delinquents themselves, began yelling "felony, felony!" Within a few minutes he was arrested and booked for assault with a firearm. After I worked the case a bit, he pled to a misdemeanor assault and eventually had his record cleared.
Another time I represented an out of state lawyer on a hit and run charge. He told the police he never hit anyone and that is why he left the scene of the accident. Unfortunately there were matching dents on both cars, so he decided to pay for the damages. Foolishly I trusted this lawyer and used part of the trust account (my fees) to pay off the claim. He never paid me back. I never sued him on the debt because he was the type who would have counter sued me on some trumped up claim just to cause trouble.
The lawyers and judges who get arrested, plead and take their medicine like everyone else can be admirable. I know of a former prosecutor who had gone to a sporting event. Upon his return to his parked car, he discovered a tow truck driver had it jacked up and ready to go. He lost it with the tow truck driver and ended up punching him in the nose. He was arrested and charged with misdemeanor assault. He pled guilty at arraignment and then tendered his resignation as a prosecutor. The elected prosecutor refused to accept the resignation. I don't blame him--why fire a mensch?
More often than not, lawyers forget their training when arrested. That is, they try to talk their way out of trouble instead of shutting up and asking for a lawyer. In fact I heard of one lawyer, on his second DUI arrest, not only talked but he refused the breath test as well. Very dumb, as refusal is the worst option. It carries a one year revocation of license and juries later hear about and hold it against the accused.
Personally I have represented lawyers who were busted, most commonly for DUI. One lawyer was a perfect gentleman with a drinking problem. He was a public defender and had two separate DUI cases. For one we set up the treatment option, known as a deferred prosecution. This allows the case to remain pending for five years, and if the treatment is completed with no other arrests or alcohol violations, the case is dismissed. He was successful. On his other case, I managed to get it dismissed due to a speedy trial violation. He was quiet, unassuming and followed my advice.
Then there are the lawyers who talk themselves into trouble. I teach criminal trial advocacy at a local law school, and one of my former students hired me. He got arrested when a friend of his was being investigated for DUI. He had walked over to the scene of his friend's arrest and tried to intervene. He kept pushing his card into the officer's hand and tried to engage him in a conversation. The officer kept telling him to leave the scene of the investigation. Finally, after several warnings to leave, the officer arrested him for obstruction. This was a valid arrest, since for safety and other reasons, the police are entitled to be left alone when they are working a case. I had to beg the prosecutor for a dispositional continuance (good behavior, etc., and then case dismissed) by pointing out that he was still an over-exuberant law student.
A much less typical but amazing case was that of another law student. He was studying for a final exam and was disturbed by some teenagers riding dirt bikes in a vacant lot next to his apartment. He asked them to be quiet and they wouldn't. So he went back to his apartment and came down with a tiny keyring gun, that actually fired a real, but very small bullet. He pointed it in the air at the bike riders and they, being delinquents themselves, began yelling "felony, felony!" Within a few minutes he was arrested and booked for assault with a firearm. After I worked the case a bit, he pled to a misdemeanor assault and eventually had his record cleared.
Another time I represented an out of state lawyer on a hit and run charge. He told the police he never hit anyone and that is why he left the scene of the accident. Unfortunately there were matching dents on both cars, so he decided to pay for the damages. Foolishly I trusted this lawyer and used part of the trust account (my fees) to pay off the claim. He never paid me back. I never sued him on the debt because he was the type who would have counter sued me on some trumped up claim just to cause trouble.
The lawyers and judges who get arrested, plead and take their medicine like everyone else can be admirable. I know of a former prosecutor who had gone to a sporting event. Upon his return to his parked car, he discovered a tow truck driver had it jacked up and ready to go. He lost it with the tow truck driver and ended up punching him in the nose. He was arrested and charged with misdemeanor assault. He pled guilty at arraignment and then tendered his resignation as a prosecutor. The elected prosecutor refused to accept the resignation. I don't blame him--why fire a mensch?
Wednesday, July 21, 2010
Shoplifters, Beware!
If you have a notion to take something from a store without paying, don't do it! Even if you feel that the big box, corporate store would not feel it, you will. For starters, they are watching. They have hidden cameras, security personnel dressed like shoppers, and detection devices at the doors..
And once you are caught, not only will you be prosecuted, but the store can sue you for damages under RCW 4.24.230. That provides: " An adult or emancipated minor who . . . [steals]is liable in addition to actual damages, for a penalty to the owner or seller in the amount of the retail value thereof not to exceed two thousand eight hundred fifty dollars, plus an additional penalty of not less than one hundred dollars nor more than six hundred fifty dollars, plus all reasonable attorney's fees and court costs expended by the owner or seller.."
This liability is in addition to potential criminal proscution. Frequently, people get notices after being caught by security from distant lawyers practicing in states like Florida. The letter demands anywhere from $100 to $650 for the petty cases. The letter must contain this notice: "IMPORTANT NOTICE: The payment of any penalty demanded of you does not prevent criminal prosecution under a related criminal provision." If you receive such a notice, don't just pay right away. It may be worth consulting a lawyer..
One way to mitigate the inevitable criminal prosecution is to try to work out a 'compromise of the misdemeanor.' This compromise is described in another Washington law, RCW 10.22.010. It grants a court discretion to dismiss an eligible charge (where the charge was not committed upon an officer, or done “riotously,” or with intent to commit a felony or involve domestic violence.) The key requirement is that the injured party must “acknowledge in writing that he or she has received satisfaction for the injury.” So if you want to pay the civil fine, it may be worth negotiating with the victim of the theft to get them to agree to sign off on a compromise of the misdemeanor..
One irony for shoplifters: the big corporate chains--Sears, KMART, Fry's Electronics, etc. are the most likely to catch you, the most likely to make a civil demand, and the least likely to agree to a compromise of the misdemeanor when you are charged with a crime. "It's against corporate policy" or some such rubbish is their reasoning. They want your purchases but they don't really care about you: the no mercy rule. In contrast, the poorer, solo shopowners who can't afford the fancy security are more likely to sign off on a compromise. One more reason to stay away from chain stores..
These rules apply to juveniles as well. That is, the custodial parent can be sued on the civil side. Of course that may give the parent a right to collect that debt from their young loved one.
For example there is a case where the juvenile shoplifted a $20 shirt and his father paid a civil penalty of $175 to the store, the court required the son to pay his father $100 back in restitution. State v. T.A.D., 122 Wn. App. 290, (2004)..
So caveat emptor: buyer and shoplifter, beware..!
And once you are caught, not only will you be prosecuted, but the store can sue you for damages under RCW 4.24.230. That provides: " An adult or emancipated minor who . . . [steals]is liable in addition to actual damages, for a penalty to the owner or seller in the amount of the retail value thereof not to exceed two thousand eight hundred fifty dollars, plus an additional penalty of not less than one hundred dollars nor more than six hundred fifty dollars, plus all reasonable attorney's fees and court costs expended by the owner or seller.."
This liability is in addition to potential criminal proscution. Frequently, people get notices after being caught by security from distant lawyers practicing in states like Florida. The letter demands anywhere from $100 to $650 for the petty cases. The letter must contain this notice: "IMPORTANT NOTICE: The payment of any penalty demanded of you does not prevent criminal prosecution under a related criminal provision." If you receive such a notice, don't just pay right away. It may be worth consulting a lawyer..
One way to mitigate the inevitable criminal prosecution is to try to work out a 'compromise of the misdemeanor.' This compromise is described in another Washington law, RCW 10.22.010. It grants a court discretion to dismiss an eligible charge (where the charge was not committed upon an officer, or done “riotously,” or with intent to commit a felony or involve domestic violence.) The key requirement is that the injured party must “acknowledge in writing that he or she has received satisfaction for the injury.” So if you want to pay the civil fine, it may be worth negotiating with the victim of the theft to get them to agree to sign off on a compromise of the misdemeanor..
One irony for shoplifters: the big corporate chains--Sears, KMART, Fry's Electronics, etc. are the most likely to catch you, the most likely to make a civil demand, and the least likely to agree to a compromise of the misdemeanor when you are charged with a crime. "It's against corporate policy" or some such rubbish is their reasoning. They want your purchases but they don't really care about you: the no mercy rule. In contrast, the poorer, solo shopowners who can't afford the fancy security are more likely to sign off on a compromise. One more reason to stay away from chain stores..
These rules apply to juveniles as well. That is, the custodial parent can be sued on the civil side. Of course that may give the parent a right to collect that debt from their young loved one.
For example there is a case where the juvenile shoplifted a $20 shirt and his father paid a civil penalty of $175 to the store, the court required the son to pay his father $100 back in restitution. State v. T.A.D., 122 Wn. App. 290, (2004)..
So caveat emptor: buyer and shoplifter, beware..!
Friday, July 2, 2010
How Could the Jury Let That Cop Off?
King County deputy sheriff punches and kicks a juvenile on videotape, lies on his reports, gets fired, and yet two juries have failed to convict him for a misdemeanor assault on the 15 year old girl! Even stranger--the first jury votes 11-1 to convict and the second 11-1 to acquit, a total reversal.. What is going on?
To begin with, when a case is re-tried to a new set of 12 jurors, it is a fresh start even if the evidence comes out exactly the same. People can view the evidence in different ways, depending on their background and other characteristics. Here, the first case was tried in downtown Seattle and the second case was tried in Kent--the two locales for King County Superior Court. The Kent site jurors are from south King County. In the same manner, downtown Seattle cases draw only city residents and north enders. It is well known that north King County residents (including Seattle) are richer and better educated on average than south end residents. So it is likely the two jury panels had different socio-economic averages, which explains one difference in how they act as jurors and perceived the case..
Another difference is that the evidence usually does not come out exactly the same in the second trial. So it is like a fresh shake of the dice if the evidence differs enough. And certain subtleties such as impeachment with prior testimony from the first trial can effect the perceptions in the second trial. Another strong possibility is the arrogance of the prosecutor. Since he won the first 11-1, he probably did nothing to improve his hand and just replayed what he did the first time. I question whether he vigorously cross-examined the defendant, especially using the lies he told about the incident..
In fact, a big factor in the second trial, according to some jurors, is that the prosecutor "didn't prove if the force was unlawful or lawful." That is, the jury was no doubt instructed on lawful force, which sets out the law on 'self defense.' That instruction defines what is lawful force and specifically requires the prosecutor to prove beyond a reasonable doubt that the defendant was not employing reasonable force. This is a high hurdle for the prosecutor. To begin with, jurors are going to give police officers a lot of leeway in employing force on their jobs. To be sure, if the officer had simply grabbed the girl and forcibly cuffed her after she kicked the shoe at him, he wouldn't even have been charged. So he could legally use force to restrain her. It also probably helped the defense that young people (recent jaywalking incident) may be perceived as not respecting police. That is a subject a creative defense lawyer might have used in jury selection or closing argument..
And yet, the officer seemed to punch and kick her unnecessarily. So the issue was really whether his use of force was "excessive." The standard jury instruction uses the phrase: "when the force is not more than is necessary." That phrase is further explained to the jury this way: "The person using or attempting the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident." So the officer's training, experience and background with similar offenders is relevant. And the jury noted this when one remarked: "It was a very strong show of force, but the fact she was not injured during the process shows he followed the techniques he was trained to use." In other words, they bought the defense argument that the state had not proved that the force was excessive beyond a reasonable doubt. Again, I wonder if the state produced sufficient expert testimony to rebut this claim..
There is no question that the cop's attorney, Peter Offenbecker, did a great job, especially dealing with the negative publicity and the preconceptions a jury would harbor. In contrast, the prosecutor should question his trial skills. Results like this always baffle anyone who did not sit throughout the entire trial and hear all of the testimony and arguments. At this point, this is a case that the state should not and probably will not re-try. And I doubt the federal prosecutor will take the case. The only 'justice' is that the County did settle a civil suit by the 15 year old girl. Except. . . we, the taxpayers, footed that bill..
To begin with, when a case is re-tried to a new set of 12 jurors, it is a fresh start even if the evidence comes out exactly the same. People can view the evidence in different ways, depending on their background and other characteristics. Here, the first case was tried in downtown Seattle and the second case was tried in Kent--the two locales for King County Superior Court. The Kent site jurors are from south King County. In the same manner, downtown Seattle cases draw only city residents and north enders. It is well known that north King County residents (including Seattle) are richer and better educated on average than south end residents. So it is likely the two jury panels had different socio-economic averages, which explains one difference in how they act as jurors and perceived the case..
Another difference is that the evidence usually does not come out exactly the same in the second trial. So it is like a fresh shake of the dice if the evidence differs enough. And certain subtleties such as impeachment with prior testimony from the first trial can effect the perceptions in the second trial. Another strong possibility is the arrogance of the prosecutor. Since he won the first 11-1, he probably did nothing to improve his hand and just replayed what he did the first time. I question whether he vigorously cross-examined the defendant, especially using the lies he told about the incident..
In fact, a big factor in the second trial, according to some jurors, is that the prosecutor "didn't prove if the force was unlawful or lawful." That is, the jury was no doubt instructed on lawful force, which sets out the law on 'self defense.' That instruction defines what is lawful force and specifically requires the prosecutor to prove beyond a reasonable doubt that the defendant was not employing reasonable force. This is a high hurdle for the prosecutor. To begin with, jurors are going to give police officers a lot of leeway in employing force on their jobs. To be sure, if the officer had simply grabbed the girl and forcibly cuffed her after she kicked the shoe at him, he wouldn't even have been charged. So he could legally use force to restrain her. It also probably helped the defense that young people (recent jaywalking incident) may be perceived as not respecting police. That is a subject a creative defense lawyer might have used in jury selection or closing argument..
And yet, the officer seemed to punch and kick her unnecessarily. So the issue was really whether his use of force was "excessive." The standard jury instruction uses the phrase: "when the force is not more than is necessary." That phrase is further explained to the jury this way: "The person using or attempting the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident." So the officer's training, experience and background with similar offenders is relevant. And the jury noted this when one remarked: "It was a very strong show of force, but the fact she was not injured during the process shows he followed the techniques he was trained to use." In other words, they bought the defense argument that the state had not proved that the force was excessive beyond a reasonable doubt. Again, I wonder if the state produced sufficient expert testimony to rebut this claim..
There is no question that the cop's attorney, Peter Offenbecker, did a great job, especially dealing with the negative publicity and the preconceptions a jury would harbor. In contrast, the prosecutor should question his trial skills. Results like this always baffle anyone who did not sit throughout the entire trial and hear all of the testimony and arguments. At this point, this is a case that the state should not and probably will not re-try. And I doubt the federal prosecutor will take the case. The only 'justice' is that the County did settle a civil suit by the 15 year old girl. Except. . . we, the taxpayers, footed that bill..
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