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It is not too often that you hear about public officials getting a 60 or 70 percent raise in a given year; but that is exactly what happened to many of Washington’s prosecutors last year.   The biggest beneficiaries were the elected prosecuting attorneys in Washington’s most rural counties. Many of the small town prosecutors toiled away for years making 45 or 50 thousand. Until July of 2008. In that hot summer month it wasn’t the heat that was making the small-town prosecutors of Washington swoon. It was the heady feeling of new found economic largess. That July in Garfield County, for example, the elected prosecuting attorney went from making 52 thousand per year to a 100,000. In a rural county closer to my home, the elected prosecutor went from 62 thousand to 106 thousand per year. The rationale of the pay raise was explained by the executive director of the Washington Association of Prosecuting Attorneys. As covered by a blog of the News Tribune, McBride explained that small counties often have trouble finding people to run for prosecutor because it pays so little. And when they do find someone, they stay only one 4-year term and then go back to private practice so they can make more money. Well, McBride was right.  Prosecutors are now hoping to stay in office alright, but their new found glee was short-lived as they quickly realized they would have a target on their back in the next election of 2010.

Is it just me, or am I the only traveling lawyer who has gotten sick of all the speculation as to who is running for prosecutor in such counties as Ferry, Garfield, Okanogan, Stevens, Columbia, Asotin etc.?  It seems like small town defense lawyers, divorce lawyers, etc are already trying to recast themselves as potential candidates for prosecutor.  I am a former prosecuting attorney myself, and maybe that is why a defense lawyer recently approached me for advice on how they can work his image for a 2010 candidacy. Defense lawyers who have for years opposed the death penalty and have publicly supported the legalization of drugs are now working to garner a conservative, law-and-order vote.   Will these defense lawyers still have the same zing to their cross examinations of law enforcement officers?

It seems like incumbent prosecutors are also feeling the pressure from potential new arrivals escaping the economic downturn.  It is no secret that there have been considerable lay-offs at the larger public defense agencies in this state, as well as larger firms laying off newly hired associates. Some of these attorneys are filtering down to smaller counties. Transplants are discovering the liberal residency requirement for candidates in this state. Under State law, a candidate must only live in the county in question for 30 days before he declares his candidacy. Many of these small towns are quite a bit off the beaten path, and don’t see too many new lawyers in town. When I am on the road for court, or even here in town, I am regularly asked if I am planning to run for prosecutor.   How do you tell people “no” and have them accept that?  When I say “no, I am not running for prosecutor” it seems like people always study my face for a minute to see if I am being coy.   There are already three- and four-way races discussed.   The year 2010 should be interesting for those of us sitting on the sidelines.  What do you think?  How much will these pay raises change the 2010 prosecutorial election races?

(Steve Graham was elected Prosecuting Attorney for Ferry County in 1998 when he was 28. He did not run again.)

I have run into an interesting issue that I raised in court, only to have the matter settle. If anyone encounters this problem and seeks assistance, I would not mind the pro bono work.  Due to their locations, an Okanogan or Ferry County attorney could challenge the current method of selecting juries.

Under Washington Law, jurors must be selected evenly from the populations as a whole. A problem arises when State Courts conduct jury trials of Indian Defendants. The current method of drawing jurors does not reach Indian residents living on trust or allotted land. Such summonses are a form of state court civil process. Under the case of North Sea Products v. Clipper Seafood, such state civil matters are unenforceable on Indian Reservations. 92 Wn. 2d 236, 595 P.2d 939 (1979) (invalidating a state-court garnishment). Additionally, the punishments under RCW 2.36.170 for failing to report for jury duty do not apply to Indians on trust or allotted lands. RCW 37.12.010 provides that the “…state of Washington hereby obligates and binds itself to assume criminal . . . jurisdiction over Indians and Indian territory,… but such assumption of jurisdiction shall not apply to Indians when on their trust lands or allotted lands within an established Indian reservation…” Indians are 16.5% of the Okanogan county population according to the U.S. census. In Ferry County, the figure is 20%. The exclusion of this body invalidates the process.  Who comes to serve, and who does not come to serve, must be random. One case on point is Brady v. Fibreboard Corp., 71 Wn. App. 280, 857 P.2d 1094 (1993), review denied, 123 Wn.2d 1018, 871 P.2d 599 (1994). In Brady, the court of appeals reversed a jury verdict because of procedural irregularities. When several jurors on the list did not appear, plaintiff’s counsel asked why, and “the judge responded that they had never been called in.” Id. at 282. Other judges had excused the jurors, and the court of appeals reversed the verdict and explained: “The procedures used here abridge the statutory mandate of random selection. It is undisputed that the initial panel of 90 was randomly selected. However, the randomness of the panel was destroyed when 14 of the 90 were eliminated by the process employed here.” Id. at 283. Like the 14 missing jurors in Brady, many native jurors will have “never been called in.” Aside from the constitutional precepts violated, this is a violation of statute mandate reversal. “When statutory jury selection procedures are materially violated, the claimant need not show actual prejudice; rather, prejudice is presumed.” Id. at 283. One case I looked at is Taylor v. Louisiana, 419 U.S. 522 (1975). In that case, Louisiana’s method of drawing jurors to court was found to be unconstitutional. Louisiana summoned men to appear, but made women’s attendance optional or voluntary. The court in Taylor v. Louisiana visited earlier cases and explained:
A unanimous Court stated in Smith v. Texas, 311 U.S. 128, 130 (1940), that “[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” To exclude racial groups from jury service was said to be “at war with our basic concepts of a democratic society and a representative government.”

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We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S., at 155 -156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.

The court struck down a murder conviction due to the failure to compulsorily include women in jury pools. The best solution would be to ask our Federal Courts or the Colville Tribal Court to issue jury summonses to the Tribal member for the State. This procedure would render the summonses valid. Unlike a mailed state-court jury summons, a summons of a Federal Court of Tribal Court will compel attendance. It is, of course, a crime to ignore a court order or summons under Federal and Tribal law. The Federal Court clearly can enforce, or re-issue State Court process on reservations. As to the Colville Tribal Courts, their cooperation with State Court process is largely discretionary under Section 1-1-102 of their code. The Ferry County Superior Court Judge could order the Ferry County Clerk to send all on-reservation summonses to the Colville Tribal Court for compulsory lawful services under tribal law.

I am often troubled when the criminal justice system fails to take proper steps to guarantee that evidence used is scientifically reliable.  Juries give a lot of credibility to expert witnesses who come to court to testify about evidence found in a criminal case.  The experts, however, are often not very thorough in making sure that the proper steps are followed in collecting the evidence.  Lawyers should be alert to these flaws.

I was recently defending a man accused of an alcohol-related driving charge, where a blood sample was taken at the hospital to test for alcohol content. The person taking the sample filled out the form describing how he drew the sample. At the bottom of the page on the blood draw form, the lab worker is called upon to fill in a box stating: “Chemical Used to Sterilize the Area.” The phlebotomist wrote in the word “water”. This was perplexing. The only explanation for this gross lapse of scientific standard is that the phlebotomist was aware that an alcohol based sterilizer could not be used, but he was unaware of what sterilizer could be used (iodine). It is important to take note that the sterilizing agent is not just used to protect the patient from infection, it is critical to protecting the integrity of the blood sample. As one scientific journal has explained: “The venipuncture site must be cleaned with an antiseptic prior to venipuncture. Otherwise microorganisms from the skin could be picked up by the needle and carried into the vein, creating the possibility of infection, or flushed into the collection tube on blood flow, contaminating the specimen.” See the publication Phlebotomy Essentials, 3rd Ed., McCall and Tankersly, 2003, pp. 245-246.  Contamination of the specimen is exactly what everyone should be trying to avoiding in a DUI or DWI case. The accuracy of blood results are threatened by bacteria. One such bacteria is Candida albicans. “Candida albicans is a diploid fungus (a form of yeast). . . under normal circumstances, C. albicans lives in 80% of the human population.” See //en.wikipedia.org/wiki/Candida_albicans. The presence of this yeast in blood samples can lead to dramatic increases in alcohol levels even in samples containing preservative, particularly when the sample is not properly refrigerated.   See The Effects of Temperature on the Formation of Ethanol by Candida Albicans in Blood, Chang , J. and Kollman, S.  E., Journal of Forensic Science, JFSCA, Vol. 34, No. 1 pp 105-109.  (1987).    Studies show blood alcohol appearing in samples that previously had not had blood alcohol present, and in amounts up to .05%.  So, a person who is accused of driving with a high level of alcohol in his blood stream in a DUI case, needs to look at his case very carefully to see how the sample was collected.  This sample in question was drawn from a hospital right in Stevens County Washington.   This problem needs to be looked out for because it is not uncommon.  As one medical journal has put it:  “The most common source of contaminated percutaneous blood cultures is often thought to be the skin of the patient at the site where cultures are obtained.”  See Updated Review of Blood Culture Contamination, Keri K. Hall and Jason A. Lyman, Clinical Microbiology Reviews,  p. 788-802, Vol. 19, No. 4. (October 2006).  The journal further explained: “…inadequate skin preparation is thought to be the most common cause of blood culture contamination.” Other medical journals agree:  “Skin microflora represent the most common isolates recovered from contaminated cultures, suggesting that lack of proper skin preparation is the most common cause of contamination.”  See Review of Clinical Trials of Skin Antiseptic Agents used to Reduce Blood Culture Contamination, Anurag Malani, MD; Kim Trimble, MD., Infection Control and Hospital Epidemiology, p. 892 (2007).

The blood sample in question was entirely unreliable due to the failure of medical staff to take the proper precautions.  The crime of DUI has serious consequences, and it stands to reasons that a person may only be convicted of such an offense if the evidence used against him is scientifically reliable.  If fermentation is taking place in a blood sample due to contamination, there is no way to determine what the blood alcohol level was at the time that the sample was actually drawn.  Often times the laboratory staff, or police, or even prosecutors on occasion turn a blind eye to the contamination of the evidence in a court of law.  A person facing a DUI or DWI charge stands alone in a court of law against flawed practices of evidence collection.  It is important for attorneys to assist a defendant to help him through our imperfect criminal justice system.  The problem with the blood collection in this case is not limited to Stevens County.  I have observed similar instances in Okanogan and in Grant County.