Washington State Criminal Defense Blog

Prosecutorial Discretion

noreply@blogger.com (Tim Leary) — Tue, 02 Jul 2013 17:31:00 +0000

Just because a prosecution can go forward does not mean that it should go proceed. The decision to prosecute is not simply a technical legal question. Prosecutors are entrusted with broad discretion in deciding whether to charge someone with a crime. Good prosecutors use their discretion.

The King County Prosecutor's Office Filing and Disposition Standards (FADS) sets out a list of examples of non-evidentiary reasons to decline to prosecute:

The violation of law is only technical orinsubstantial and no public interest or deterrent purpose would be served by prosecution;
When a minor case may be declined because the cost of prosecution is highly disproportionate to the importance of prosecuting the offense; or
When the offender is given immunity in order to obtain testimony or information reasonably leading to the conviction of more culpable individuals.

The FADS discuss the importance of retaining this discretion to guard "against an inflexible policy of filing all legally sufficient charges despite valid circumstances crying out for nonenforcement."

It all makes sense, right?

Well there are often glaring examples of cases where a prosecutor does not exercise his or her discretion. Today's example is out of San Diego. The City Prosecutor went forward on a malicious mischief allegation against Jeff Olson.

His offense? Scrawling messages like "Shame on B of A" and "No thanks, big banks" in water-soluble chalk on sidewalks outside of Bank of America branches. He included a drawing of an octopus reaching for dollar bills.

Read the full story here.

The Mayor of San Diego called the prosecution "stupid" and a waste of resources.

The jury acquitted Mr. Olson of all charges.

The prosecutor attempted to defend his actions by saying that he offered a diversion where Mr. Olson would have performed community service for a dismissal. This is a cop out. If the case should not have been filed, a diversion offer does not justify the prosecution and his failure to exercise discretion.

The Limits of DNA

noreply@blogger.com (Tim Leary) — Sat, 29 Jun 2013 00:53:00 +0000

Deoxyribonucleic Acid.
DNA.

Nothing has has changed the course of criminal investigations more in the last 100 years than DNA.

It gives police the ability to identify an otherwise anonymous suspect.

It has repeatedly exonerated the wrongfully convicted.

However, it is not foolproof.

The mere presence of a person's DNA at a crime scene does not provide all the answers.

In fact, it can falsely implicate an innocent person. How?

Read the story here of Lukis Anderson in the San Francisco Chronicle. An airtight alibi

proved that Anderson did not murder a millionaire.

But just how did his DNA end up on the fingernails of the deceased?

Without an established alibi would the DNA have wrongfully convicted Anderson?

Fortunately we will never have to find out.

Tables Turned

noreply@blogger.com (Tim Leary) — Tue, 05 Feb 2013 17:02:00 +0000

Here is an interesting article in yesterday's L.A. Times about a Texas investigation into prosecutorial misconduct. Michael Morton spent 25 years in prison for a murder he did not commit. He was exonerated in 2011 after DNA tests confirmed his innocence.

The man who prosecuted Morton, Ken Anderson, now faces a "court of inquiry" to determine whether he lied and concealed evidence that court have cleared Morton. Anderson is now in County District Court Judge in Texas.

The case raises many questions, questions that Morton has had 25 years to think about.

Texas Opens Court of Inquiry into Claims of Prosecutor Misconduct

The Power of Video Evidence

noreply@blogger.com (Tim Leary) — Thu, 18 Aug 2011 20:33:00 +0000

Advances in science and technology have had a tremendous impact on the criminal justice system. While DNA, cell tower records, and video evidence can help build a case against a defendant, frequently it has the power to conclusively show that the police were just plain wrong.

I came across this article in the LA Times today. After reviewing cell phone camera video, the Fullerton Police Department in California admitted that they arrested the wrong man in an officer assault case. The admission did not come until after the man was exonerated at trial.

Defense counsel told the paper that the video"contradicted the police reports and testimony of the officers in every way. The video proved what they said wasn't true."

You can read the entire article here:

Fullerton Police Review Video, Acknowledge Arresting Wrong Man

Expanded Use of DNA - Family DNA

noreply@blogger.com (Tim Leary) — Mon, 09 May 2011 04:34:00 +0000

The LA Times posted an interesting story this evening about law enforcement expanding the techniques used to analyze DNA. The process looks for links between family members - ones who are in the database and suspects who are not. The genetic sleuthing technique is not without controversy.

Read the Full Story

Time Off for Good Behavior

noreply@blogger.com (Tim Leary) — Sun, 13 Feb 2011 05:48:00 +0000

People naturally have many questions about how much of a sentence will a defendant actually serve. The issue is governed by RCW 9.92.151. Currently, defendants sentenced to prison are eligible to earn one third off their sentence unless:

The offense is a serious violent offense or a sex offense that is a class A felony committed on or after July 1, 1990. These cases are only eligible for earned early release time of up to 15 percent of the sentence.

It is important to note that the Legislature is grappling with a financial crisis. Several years ago, it implemented a fifty percent off credit for certain crimes. The law recently expired and it has yet to be renewed. However, it is back on the table as a possible way to save money.

Prison sentences are sentences that are over one year, i.e. any sentence 12 months and 1 day or greater.

There are a few exceptions to the above rule. Feel free to call me with questions.

Tim

Amazing Feat

noreply@blogger.com (Tim Leary) — Sun, 13 Feb 2011 04:12:00 +0000

Every once in a while things line up and great things happen. I saw this clip today of Wayne Rooney scoring a game winning goal. It came with 13 minutes left in an English Premier League match. It is hard to imagine a better goal. That he scored it against the cross town rival Manchester City makes it all the better.

Enjoy.

View Clip of Rooney's Goal [The best camera angle is at 00:50]

Client Acquitted of Murder in the First Degree

noreply@blogger.com (Tim Leary) — Tue, 25 Jan 2011 00:34:00 +0000

I completed a murder trial in King County Superior Court last week. After a day of deliberations, the jury stated that they were deadlocked 11-1. They did not indicate which way they cast their votes. Judge Eadie instructed them to continue deliberating and to return 9:00 am Monday morning.

At 9:05 I received a call from the court - the jury had reached a verdict.

The jury acquitted my client.

My 21-year-old client was accused of killing his step-father. If convicted, he faced a minimum of 25 years in prison (with no early release time).

I will write more about the trial later.

Here is the article from the Seattle PI.
Here is the article from the Seattle Times.

Tim

The Killing of John T Williams

noreply@blogger.com (Tim Leary) — Fri, 17 Dec 2010 23:15:00 +0000

Native American woodcarver John T. Williams was shot and killed by SPD Officer Ian Birk on August 30, 2010, in Seattle. As I have commented before, serious questions have been raised about whether the shooting was justified.

Those questions only intensified today with the release of Officer Birk's in-car video.

The recording shows Mr. Williams amble across the street and Officer Birk make contact with him. What is so shocking is how quickly Birk kills Mr. Williams. Mr. Williams likely never knew what hit him.

The inquest is scheduled to begin in the latter part of January 2011. Afterward, the King County Prosecutor's Office will decide whether to file charges.

You can watch the video below. While the shooting occurs off camera, it is very disturbing.

Identity Issues

noreply@blogger.com (Tim Leary) — Thu, 09 Dec 2010 04:50:00 +0000

Identity issues are difficult, complex and can be particularly troubling. All too often faulty eye witness identifications lead to wrongful convictions. Identifications can be influenced by suggestive photo montages, bad line up procedures, cross racial bias or a host of other factors. The following Los Angles Times article has a whole new twist on the issue:

Masks so realistic they're arresting the wrong guy

By Sharon Bernstein | 6:21 p.m.

A white man who robbed Ohio banks looked so convincing in a black-male disguise that an innocent man was held. That's not exactly what SPFXMasks of Van Nuys intended for its masks.

Full Story

Happy Thanksgiving

noreply@blogger.com (Tim Leary) — Thu, 25 Nov 2010 17:51:00 +0000

May you and your family have a happy and safe Thanksgiving.

Tim

Grant County Justice

noreply@blogger.com (Tim Leary) — Sat, 13 Nov 2010 07:04:00 +0000

There was an interesting article in yesterday's Columbia Basin Herald about how an increased number of criminal cases are going to trial in Grant County. The article talked about how it is presenting some real logistical issues. The elected prosecutor's policies don't seem to be helping matters. In the article, he talks tough about obtaining felony convictions.

Prosecutors who focus on getting convictions miss the point of their role. Their job is not to blindly seek convictions. What is in the best interest of the victim, the community and the defendant. People often make mistakes or do things that they regret. That does not mean that they have to have a criminal conviction in order for them to learn their lesson.

It has almost become too easy to label things as crimes. Did you know that it is a crime (yes a crime and not an infraction) to spit in the downtown bus tunnel? RCW 9.91.025(1)(e).

Fortunately, jury trials can provide relief. The article notes that defense attorneys have had recent successes in trial in Grant County. If the Grant County Prosecutor does not have amore balanced approach at meting out justice, juries may just do it for him.

In 2004, the Seattle Times ran a series of articles about the significant problems that existed in the Grant County Superior Court. It is worth the read: Unequal Defense.

Yesterday's Columbia Basin Herald Article can be found: here.

King County Budget Woes

noreply@blogger.com (Tim Leary) — Sat, 13 Nov 2010 06:05:00 +0000

Local News | Sheriff's Dept. takes brunt of new King County budget plan | Seattle Times Newspaper

The King County Council is preparing the 2011 budget. It does not look pretty. The Council is projecting a $60 shortfall. Earlier this month, King County voters rejected a request to increase the sales tax by .02%. The money would have gone to maintaining the funding levels for criminal justice programs. Criminal justice (Prosecutor's Office, Sheriff's Office and the Jail) composes the largest part of the general fund expenses. Thus budget shortfalls will invariably result in significant cuts to those three agencies.

Ian Goodhew, Deputy Chief of Staff to Prosecuting Attorney Dan Satterberg, told the Seattle Times that the office was bracing for the loss of 16 deputy prosecutors and eight staff positions. He noted that the cuts will affect the offices ability to prosecute burglaries, car thefts, and certain elder abuse crimes.

In years past, the Prosecutor's Office has dedicated additional resources to target burglaries, car theft and elder abuse. (I was the Elder Abuse Prosecutor at the King County Prosecutor's Office for three years before I left in 2008). It appears that the cuts will begin with those programs.

The budget problems will likely result in a reduction in the number of criminal cases that the KC Prosecutor's Office files in 2011. It may also impact how they negotiate and resolve cases.

Questions Continue to Surround Actions of SPD Gang Detective

noreply@blogger.com (Tim Leary) — Wed, 10 Nov 2010 19:06:00 +0000

New questions have arisen over Seattle Police Department Gang Detective Shandy Cobane's treatment of person in custody.

Back in April, Detective Cobane threatened to "beat the (expletive) Mexican piss out of you homey" before kicking a Latino man in the head. The incident was caught on tape and nearly derailed the confirmation of John Diaz as Chief of Police.

Kiro news is reporting that Cobane is accused of strangling a man in handcuffs in the back of a patrol car. The incident occurred just a week after the videotaped incident with the Latino man.

See Kiro’s report at:

http://www.kirotv.com/news/25687185/detail.html

What is an Arraignment?

noreply@blogger.com (Tim Leary) — Wed, 10 Nov 2010 18:46:00 +0000

The court rules require that the court arraign a defendant within 14 days of the State's filing of charges. The arraignment itself is very straight forward. It typically goes something like this:

Prosecutor: This is the State of Washington v. John Smith, 10-1-00000-1 SEA. The defendant is present, out of custody, and represented by counsel Tim Leary.

Tim: Good morning Your Honor. Tim Leary on behalf of Mr. Smith. I would acknowledge receipt of Mr. Smith’s rights under the Vienna Convention.

Judge: Good morning counsel. Thank you. The arraignment may proceed.
Prosecutor: Sir, is your true and correct name John Roger Smith?

Mr. Smith: Yes.

Prosecutor: Do you understand that you have been charged with the crime of assault in the second degree alleged to have occurred on October 31, 2010?

Tim: We acknowledge receipt of the information, and waive further formal reading and enter a plea of not guilty.

Clerk: Case setting is set for November 30, 2010.

The arraignment is simply a public advisement of what the charges. The entry of a "not guilty" plea tells the court that the defendant is electing to preserve all of his/her constitutional rights: right to a jury trial, proof beyond a reasonable doubt, right to put on witness and confront the State's witnesses, the right to remain silent etc...

The court will also address conditions of release: no contact orders, travel restrictions, bail, etc.

The United States ratified the Vienna Convention Treaty in 1969. It addresses the rights and procedures for foreign nationals who are charged with a crime in the United States. The treat requires that foreign nationals be given the opportunity to contact the consulate from their home country and request the assistance of their home country.

As the sample colloquy above lays out, the defendant is not required to say anyting other than acknowledge their true name. The defendant should not talk about the accusations. The proceedings are recorded and the prosecutor will be more than happy to use any inadvertent admissions against you at trial.

The Shooting of John T Williams

noreply@blogger.com (Tim Leary) — Wed, 10 Nov 2010 07:28:00 +0000

Native American woodcarver John T. Williams was shot and killed by SPD Officer Ian Birk on August 30 in Seattle. Serious questions have been raised about whether the shooting was justified.

News came out this afternoon that when the officers at the scene found the knife, it was in the closed position. It had been reported earlier that Birk felt that Mr. Williams was "menacing" with the knife and failed to follow commands to drop the knife. Evidence came out later that he was deaf in one ear and that his BAC level was a .18.

Evidence that the knife was in a closed position severely undercuts Birk's position that Mr. Williams was "menacing" and a threat.

Today's Seattle Time's article can be found at:

http://seattletimes.nwsource.com/html/localnews/2013385604_policeshooting10m.html

TIM LEARY'S CRIMINAL DEFENSE BLOG

noreply@blogger.com (Tim Leary) — Wed, 10 Nov 2010 07:19:00 +0000

Good evening. This is Tim Leary's new Washington Criminal Defense Blog. I will be periodically posting about developments in criminal law, criminal cases in the news or other items of interest. Check back frequently for new posts.