Archive for January, 2012

Some Native-Americans have issues with autopsies for deceased tribal members.  Although death rituals and burial practices vary from tribe to tribe, I have heard this concern raised a lot in my work as a lawyer, and in my previous work as a coroner.  A new case from Pierce County has addressed the rights of family members to stop autopsies on cultural grounds.   The case involved an orthodox Jewish man, but the same legal principals could be applied to Native Americans or other cultural groups who oppose autopsies on cultural grounds.

Factual background of Pierce County case

Here is a little background on the Pierce County case:  Dr. Brian Grobois, of New York, took a trip to Washington State, and attempted a day hike in Mount Rainier National Park on December 11^th, 2011.  He died of hypothermia.  When his body was located, he was then transported to the office of Dr. Thomas Clark, the Pierce County Medical Examiner.  Dr. Grobois’ family explained that they didn’t want an invasive autopsy performed because the family is of the Orthodox Jewish faith.   When it appeared that the medical examiner was still going to proceed, the deceased’s wife hired a lawyer to seek to prohibit an autopsy.

Legal procedures involved

The lawyer Dr. Grobois’s widow filed a lawsuit seeking an injunction.  The lawyer attached a declaration by a local Washington Rabbi who explained the religious and cultural reasons why an autopsy should not be done.  The suit was filed on December 14^th at around 1 p.m., and an ex parte order was signed about 90 minutes later.  The court order prohibited the autopsy until a hearing could be held the next day at 3 p.m.  The judge who signed the order was Commissioner Mark Gelman.   The case was continued until the next day, and the attorney for the medical examiner wrote a lengthy legal memorandum citing the powers of coroners and medical examiners.  On December 16^th, Judge Brian Tollefson ruled against the medical examiner, and ordered the body to be returned.  No appeal was filed.

How this case might apply to Native Americans.

I ordered a copy of the court file in this case, and took a close look at it.  The plaintiff’s lawyer had a rabbi draft a declaration regarding religious practices.  The rabbi sited Deuteronomy 21:23 and 12:23, but not a lot of sources or citations to other religious texts were needed to stop the autopsy in this case.  It seems to me that other cultural groups (including Native Americans) could bring a similar case in a court in Washington State.  A plaintiff would want to track down cultural leaders to explain the issues with autopsies in as much detail as possible.  To prevent an autopsy, the plaintiff needs to make it clear that they are acting out of cultural beliefs, not just an individual views or preferences on the subject of autopsies.

The balancing test

Although it is not really clear from the record in Grobois v. Pierce County, a superior court in Washington will do a balancing test when faced with a request for an injunction.  In other words, the judge will balance why the pathologist feels he needs an autopsy versus why the family is opposed to it.  Was there suspicion of foul play?  Is the cause of death apparent without an autopsy?  Is the family member opposing the autopsy a suspect?

Death investigations in Washington.

Here is how the death investigation system works in Washington State.  If a person dies unexpectedly outside the care of a physician, the county coroner (or medical examiner) has jurisdiction to investigate the cause of death.   In metropolitan counties like Spokane, King and Pierce County, the county commissioners appoint a “medical examiner” to perform this function.  The medical examiner is a board certified forensic pathologist.  However, in mid-size counties like Stevens County, Yakima County, Grant County, etc., an elected coroner conducts death investigations.  These coronors might by retired nurses, retired police detectives etc, but they are not usually doctors.  In counties with populations under 40 thousand people, the job of coroner falls on the elected prosecutor.  In these counties (such as Ferry, Okanogan, Lincoln, etc) the elected prosecutor might attend a class or two, but more extensive formal training is not too common.  In these counties, the coroner investigates the death, but sends the bodies down to forensic pathologist for the actual autopsy.  For example, the Ferry County and Okanogan coroner contract with Dr. Gina Fino of Wenatchee  In Stevens and Lincoln counties, the bodies are sent to Dr. Sally Aiken or Dr. John Howard of Spokane.  There is a reason that it is important to know how the system works in different areas.  A party seeking an injunction needs to know who to serve, and needs to act fast.

The nature of an autopsy

While we often think of an autopsy as the cutting open of a body, the term “autopsy” simply means to examine the body.  However, in cases of unattended or suspicious deaths, usually the autopsy means a full examination.  In such an examination the brain is removed and dissected, and the internal organs are removed and weighed.  Samples are taken and viewed microscopically, and often sent for tests.  The parts are them put back together and the torso is sewn back up.  I had the opportunity to observe such an autopsy at Holly Family Hospital once in Spokane.  It is not pleasant to watch, of course, but the body is treated with respect and care.  Sometimes a forensic pathologist is able to tell the cause of death and sometimes not.   Sometimes an autopsy yields surprising results.  On occasion, a person who takes his or her own life will be found to have had a brain tumor that was causing the depression.  This is the type of thing that families like to know.  Many of the unattended deaths in this country are due to strokes or heart attacks.  It is possible to do a limited autopsy to address the cultural concerns or traditions of groups such a Native Americans or Orthodox Jews.  For example, Judge Tollefson did allow the Pierce County Medical Examiner to do an x-ray of Mr. Grobois.   I can recall that years ago the Spokane County Coronor would authorize such limited autopsies for Native Americans.

To obtain an injunction a person needs to find an attorney that can work fast.  When I have head to seek an injunction in the past, it usually means working all day and night to prepare the legal paperwork, and sometimes contacting a judge after hours.

Marijuana laws in the U.S. are so complex, so contradictory, at at some times so baffling, that lawyers love to write about the subject.  Since I started my blog 3 years ago, the subject of marijuana laws has been a frequent topic.  We have discussed the “green tongue” phenomenon, the science of “marijuana dui“, the taxation,  what not to say when you are stopped, why it sucks to go to court for marijuana possession, what to do if you are caught at the border with marijuana, and attempts to reform the laws, and I-502.  Geesh, thats kind of a lot.  But I am not the only one.  Here is a list of 10 of the best marijuana law-bloggers in the 50 states.  They have great stuff, so go check out their sites.  (They are in no particular order – they are all good.)

1.   New Jersey Marijuana Blog.  Jef Henninger takes on New Jersey marijuana laws and explains the fight to more narrowly construe the state’s school zone enhancements, and the battle to prohibit “expert” witnesses from telling the jury that their “expert” opinion is that the defendant is guilty.

Dozens of law bloggers write on the subject of marijuana - here are some of the best.

2.  Rose Law Group Blog. The staff at Rose Law Group attempts to make sense of the byzantine legal structure of medical marijuana in Arizona while the state wrangles with threats from the federal government.

3.   L.A.’s Dopest Attorney.  Fresh out of Harvard, lawyer Allison Margolin shared her views on the drug war, pushy DA’s, and various celebrities.  We are still waiting for her to update her blog though.

4.  Rose Law Texas.  Jeremy Rosenthal offers thoughtful, in depth, legal explanations on how marijuana laws work in Texas.  When several people are in a car, and marijuana is on the floor, it is always a gray area as to who “possesses” it, and Jeremy has a good post on that subject.

5.   Philadelphia Criminal Law Blog.  Attorney Brian Zeiger has a nice collection of posts on marijuana in a question-and-answer format, including the question all lawyers get about the defendant who skipped town on a pot charge, and then needs advice on what to do.

6.   Paul C. Youngs Blog.  Paul has blogged on the efforts by the IRS to remove any business expenses as tax deductible.  Additionally, he has commented on  the fairly liberal marijuana policies of Ann Arbor Michigan compared to the rest of the state.  Sound like Seattle anyone?

7.   Sammis Law Blog.  The Sammis law firm covers the efforts toward decriminalization of medical marijuana in Florida.  A 3/5th margin of the legislature is required to get the the measure on the ballot.  Polls show broad support for medical marijuana, and Florida might be joining the 17 other states in the US that recognize it.

8.   The Marijuana Lawyer Blog.   This blog is written by the Law Office of Glew and Kim of California.  They have written lately of the efforts by state governors to have the DEA re-classify marijuana from being a Schedule I to a Schedule II drug, thus permitting the drug for medicinal purposes.

9.   Criminal Attorney St Petersburg Blog. Attorney Melinda Morris takes a look at criminal issues in Florida including a trend among teens in the Tampa Bay area to adorn themselves with the hose of a water pipe in the form of a bracelet.

10.  Ambrose Law Group Blog. Attorneys from this law firm tackle the subject of canine “sniff” searches, the disturbing trends on marijuana arrests, and the loss of housing subsidies by medical cannabis patients.

What are your favorite blogs?  Let me know what I have missed, and maybe I will include them in 2013.
 

Schapelle Corby is a 34-year-old Australian woman who was convicted of smuggling marijuana into Bali in 2004.  The Indonesian police claim to have found the drugs in a bag she and her friends had with them that contained a boogie board.   Schapelle Corby claimed to have no knowledge of the drug’s presence.

//www.freeschapelle.net/

She has maintained her innocence, and her trial was plagued by irregularities.  The Indonesian police ordered the destruction of the physical evidence in the case, and destroyed the CCTV video of her arrest and questioning.  There was no comparison of the bag’s check-in weight at the Brisbane airport compared to the weight of the bag upon arrival.   The bag was not tested for fingerprints. Corby was sentenced to 20 years in prison.  (In comparison, Abu Bakar Bashir (convicted of conspiring to kill 200 people in the Bali night club bombing) received only a couple years).  Corby has exhausted all her appeal rights in the Indonesian justice system, but she is still petitioning for clemency.  Much like the Amanda Knox trial captured the attention of the American public, Schappelle Corby caused many Australians to wonder how fairly she was treated.

But unlike the happy ending that Knox received, the abuse of Schapelle Corby continues.  Check out the latest nonsense that Corby had to put up. (See story)  The prison apparently has some sort of Christmas Mass for the inmates every year, where they drag the inmates out in front of the media, and announce any remissions (or slight reductions in the sentence due to good behavior).  When Corby saw all the media, she asked to be brought back to her cell.  Apparently, she did not want to be a part of this charade of the warden’s showy beneficence.  This is what the warden said to the press: “This will be a special point against her [getting future sentence cuts] and I will report it to the Australian Consulate. … She has failed to meet all the requirements for a remission. … She is a naughty child and unappreciative of Kerobokan Penitentiary.”  What a nut.

I don’t think we have heard the last of this case.  There seems to be some increased attention to her case, and according to @freeschapelle on twitter, there is a new documentary coming out about her case.

What do you think of this case?  Share your thoughts in the comment section below.

—Steve

The ignition interlock in Washington is here to stay.  Once, the ignition interlock was required only for DUI repeat offenders.  Now the devices are sometimes even required for offenses like negligent driving.

Think of the ignition interlock as a tech gadget.

The Department of Licensing often requires the instrument as a condition of license re-instatement after a DUI conviction.  Many experts predict that soon the ignition interlock device will be required in all new vehicles, alongside seatbelts and airbags. If you are required to use one, think of it like it is a new tech gadget, and you are a new adapter.  If they sold them at the Apple Store, there would be a line around the block.

There are many advantages to the new technology.  A driver with an alcohol-related license suspension can often legally drive with an Ignition Interlock License.  Such a license is granted to suspended drivers once they have a device installed.  The devices do sometimes malfunction, so it is important to find a reputable installer of an ignition interlock.  An installation service can also assist you in getting the paperwork needed to the DOL.

My clients who appreciate the devices the most are the ones who live in rural areas, and who don’t have the option of taking a bus to work.  Avoiding the ignition interlock requirement and driving while suspended is not really an option.  The penalties for such an offense are severe and also lead to probation violations.  Suspended driving can also lead to the revocation of a deferred prosecution.  The Ignition Interlock License is really a win-win, because community safety is protected but defendants are still allowed to drive to work and keep making a living.

Hit and Run laws in Washington are hard even for lawyers to understand.  Lately, I have had the opportunity to defend many hit and run cases, both in the Spokane area and elsewhere.  The laws are complex, and there is a lot of confusion about the laws on this subject so I figured it might make a good blog post.

Different Levels of Hit and Run

Like many crimes in Washington State, Hit and Run has different levels. But unlike most other crimes (assault, for example) the levels of hit and run are not broken up into 1st, 2nd, 3rd, and 4th degree.  Rather, Hit and Run is broken into the four different levels:

Hit and Run – Unattended

Hit and Run – Unattended is the lowest level of Hit and Run, and is a misdemeanor under Washington law.  The crime occurs when a driver collides with an “unattended” parked car or other property of value on the side of the road, and then leaves without notify the owner or leaving a note.

Hit and Run – Attended

Hit and Run -Attended is committed when a driver strikes another vehicle that is occupied, and flees the scene.  This offense is a gross misdemeanor. The law imposes a duty on the driver to stop and provide his or her name and address, and his or her insurance information.

Hit and Run – Injury

Hit and Run – Injury applies when a driver strikes another vehicle and injures an occupant of that vehicle and flees the scene.  This offense is a class C felony. The law imposes a duty on the driver to render assistance to the injured party, including making arrangements for transportation to the hospital.  This last requirement doesn’t apply in circumstances when the driver himself is unable to do so due to his or her own injuries.

Hit and Run – Fatality

Hit and Run – Injury applies when a driver strikes another vehicle, injures an occupant of that vehicle, and flees the scene.  This offense is a class C felony. A Hit and Run involving any occupied vehicle will result in a 1 year license suspension.

Occasionally, a driver or defendant will explain to the police that he or she was not aware that they collided into another vehicle.  This does not arise too often, and is obviously more plausible when the damage to the vehicles is minimal and in circumstances, perhaps, where the driver is elderly or distracted.  Usually Hit and Run charges are proven by eyewitness testimony, or by a forensic analysis of paint scrapes.  Under Locard’s theory of “transfer and exchange” a close examination of each vehicle would leave trace evidence on the other in the form of paint scrapes or metal scrapings.  The height of the markings on each vehicle would also be considered.  In practice, busy police departments don’t always closely examine the damage done.  Photographs are usually taken, and it is common for paint chips to be collected but not immediately tested.

A conviction for Hit and Run on a person’s criminal record sometimes creates confusion.  When employers are doing a background check, they don’t often know what to make of a Hit and Run charge, and they are apt to assume that the conviction involves the most serious type.  Background checks often yield inaccurate results, and even FBI or Washington State criminal records are spotty or incomplete.  It is not uncommon for a criminal record to refer to a “Hit and Run” conviction without spelling out the level, type, or nature of the offense.  Criminal defense lawyers typically file public records requests for the police reports that underlie the offense for more information.

Hit and Run charges can stand on their own, or they can be coupled with other offenses such as DUI, Negligent Driving, Reckless Driving, or even Vehicular Homicide.  When a person flees the scene of an accident, it is sometimes just a panic reaction, but sometimes a person makes a more deliberate decision to leave because they have no insurance, are intoxicated, or have pre-existing warrants for their arrest.

For more information on Hit and Run, and the penalties, visit our website.