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When is our court computer system coming back online? There hasn’t been a lot of media coverage on the problem with Odyssey or JABS being down or what the effect will be if the problem continues. The Administrative Office of the Courts (AOC) posted last week that there was “unauthorized activity” on the system, and they took steps to “secure critical systems.” So does this mean that AOC strategically took the system offline to prevent further possible damage to the network? It doesn’t appear that the issue with the system was similar to the “denial of service” attack on the Pennsylvania court system earlier this year. Whatever the cause, the outage hinders the courts and lawyers in their ability to function in our modern court system.  Jury trials have been delayed by a month in some counties (such as Okanogan), although trials in most jurisdictions appear to be proceeding, including Spokane. If the court computers are down for too much longer, our criminal legal system risks developing another backlog similar to what happened during the recent public health emergency. In addition to delayed legal proceedings, a security breach creates a risk of personal data being leaked. The Kansas court system suffered an issue where private information of more than 150,000 people was released.

Criminal defense lawyers in our state use courts.wa.gov for accessing standard court forms and copies of recent pleadings. One recent client had his case dismissed and he wasn’t able to produce a copy for his employer. In another case I was involved in, I was unable to retrieve a court order in a major felony case. The clerk and prosecuting attorney couldn’t access it either. The only person who could locate the order was the defendant who had a hard copy. The client texted me a copy of the order and I resubmitted it to the clerk. Over the last 10 years many attorneys have gone “paperless.” This is a challenge when computer system collapse. Old school lawyers who have maintained paper files have felt vindicated.

Attacks on court computers seem to be increasing throughout the USA. The reasons behind each attack is unknown, but it may be that hostile forces are trying to undercut confidence in our judicial institutions. In this country when court systems are compromised, the public often doesn’t ever get a full explanation for what went wrong or what occurred. After a similar problem with the court system in Los Angeles, the LA Times took the court system to task for its opacity and called for a public investigation. The editorial board stated that they felt the court’s limited funding and culture of independence may have led the court to cut itself off from the rest of the county’s security systems.

I often get questions about collaborating with participatory defense groups in my court cases, such as the Maddesyn George case in federal court or the Leah Eggleson case in Tacoma. While many lawyers might hesitate to involve supporters due to concerns about confidentiality, bench-bar press guidelines, or a perceived loss of control, and these apprehensions are understandable. However, I believe that, overall, partnering with a participatory defense group is highly beneficial. In this post, I’ll share some tips on effectively working with community activists and how you can empower them to support your client.

Let’s start though with what participatory defense is. Participatory defense is a community organizing model that seeks to give power back to individuals, families, and communities to participate directly in the defense of those facing criminal charges. The model of participatory defense was developed by Raj Jayadev of Silicon Valley De-Bug. He just came out with a book called Protect Your People.  I recently finished reading this book, and I will make reference to it below.

Keep in mind that a participatory defense group led by community organizers is simply going to give structure to probably what is already going on anyway. Every criminal defense lawyer knows that friends and family will sometimes do things to try to help, like try to find witnesses, write letters of support, try to talk to the prosecutor or even the judge, complain to the media, or research ideas online. Community organizers can assist in directing this energy towards ways that help rather than hurt.  Here are ways they can help:

Establishing a Liaison to the Family

Every defense lawyer knows what it is like to have multiple family members all call with the same question.  A successfully participatory defense group can organize and put one person in charge of being the liaison to the legal counsel.  In the Maddesyn George case that I did, I actually did weekly Zoom meeting with the supporters, but this isn’t necessarily required.  Not every defense lawyer has time for this.

Assisting with Resources

A participatory defense group often will have more connections with resources then many defense lawyers.  I know in the cases where I worked with community organizers they would put me in touch with national expert witnesses, and with journalists who would assist in correcting false information that was already in the media about our cases. 

Helping with Raising Bail

Participatory defense groups often have contacts with bail funds that can assist in getting a client released.  Additionally, they can assist in raising money for bail through a social media. 

Focusing the Courtroom Presence

Having supporters in a courtroom can be reassuring but it can also be a distraction. Lawyers can’t look over their shoulder during court. Typically, with friends or family of the defendant a lawyer has to worry about phones going off, or people muttering audibly during trial, or making faces during court, but these concerned are lessened when working with an experienced participatory defense hub. Raj Jayadev writes: “[During trial] we would encourage everyone to take notes on whatever stood out to them. When we had breaks we would debrief and cross reference notes, then send them to the attorney. We would observe the jury and their reactions.” (Page 46).

Inmate Jail Calls

As every lawyer know clients talking on the phone at the jail is one of the most problematic parts of representing a person who is detained pretrial. No matter what you tell the client (or the family) inmates will always seem to talk about what happened, what their defense will be and what their trial strategy will be. A participatory defense group will reiterate to the family and the client not to talk about the case on the phone, and Raj Jayadev mentions this in his group. “At our meetings, families learned that jail calls were recorded, and so they shouldn’t talk about the case…” (Page 12)

Support for Public Defenders

Working with participatory defense hubs is not just for private lawyers.  Many participatory defense hubs have good relationships with public defenders’ offices across the country. The book Protect Your People is very supportive of public defenders and cautions families against targeting public defenders as the source of their problems. (Page 13-14) In one chapter, the book recounts a success story where a public defender took over a case that a private lawyer had messed up and helped get justice for a defendant.  (Page 112)

It is not my intention to make it sound like it is just the job of a participatory defense hub to help the defense lawyer. They are also there to hold us, as lawyers, accountable. And it requires a certain level of humility and patience to make the relationship work. And it works best when a lawyer is willing to look at things in new ways, and address some of their biases and preconceived notions. If you are new to participatory defense, hopefully I have piqued your curiosity. I would encourage lawyers to learn more about this through this book I reference or though material online. Feel free to reach to me if you have any questions. I am not an expert, but I have noticed that there are very few lawyers in Washington who are willing to work with community organizers.  That is a shame because if we are going to end mass incarceration, we must all work together.

What thoughts do you have? Do you see the value of participatory defense? Do you have any experience dealing with community groups in the defense of your cases? Write your comments below.

This summer, the Spokane Police Department purchased a Dragonfish drone made by Autel. The city council minutes announced the purchase, with the price set at $164,000. Although Spokane police have used smaller drones in the past, the Dragonfish is notable for its two-hour-plus flight time, 20-mile range, and use of artificial intelligence. These capabilities could push the boundaries of surveillance that a court might permit. Let’s explore why this could be concerning.

Capturing images of people or private property from the sky isn’t necessarily problematic on its own. In Dow Chemical v. U.S. (1986), the U.S. Supreme Court ruled that the Environmental Protection Agency did not violate the Constitution by flying an airplane equipped with a “standard, floor-mounted, aerial mapping camera” to photograph a chemical facility from 1,200 feet. The court upheld this practice even though the camera was the “finest precision aerial camera available,” allowing authorities to observe “a great deal more than the human eye could ever see.” Similarly, in Florida v. Riley (1989), the Court upheld the use of a helicopter to spot marijuana plants inside a greenhouse from 400 feet above. The Court reasoned that the helicopter was in public airspace and the crew could not observe “intimate details” within the home. However, modern drone technology could quickly escalate these issues. In 2021, in the case Leaders of a Beautiful Struggle v. Baltimore, the Fourth Circuit Court of Appeals struck down the Baltimore Police Department’s practice of monitoring parts of the city non-stop for 12 hours a day. The drones transmitted video data to the ground, which was integrated with city security cameras, license plate readers, and audio detectors for gunshots.

While the Spokane police’s single Dragonfish unit cannot compete with Baltimore’s full-time surveillance program, it does have the capability to fly close to ground level and observe much more than its predecessors. The constitutionality of its use will likely hinge on how the police deploy the drone. Criminal defense attorneys will need to monitor drone use in their cases. Additionally, there is concern about potential misuse by rogue elements within a police department. For example, in 2007, a security officer at the Spokane federal courthouse was charged with voyeurism for using “high-powered” rooftop security cameras to peer into nearby condominiums. A drone capable of flying anywhere, particularly if equipped with facial recognition technology, infrared video, or automated license plate reading, presents a greater potential for abuse.

The greatest threat to the Spokane Police Department’s Dragonfish drone, however, may not be from defense lawyers, privacy advocates, or civil libertarians. Instead, the primary concern is that the drone was manufactured in China, raising national security concerns. The U.S. Department of Commerce has placed Autel, the Chinese drone maker, on its blacklist, prohibiting American companies from doing business with the company. States such as Mississippi, Florida, and Arkansas have recently banned state agencies from using Chinese-made drones like the Dragonfish. While there is new federal legislation proposed to ban Chinese-made DJI drones, this draft legislation does not appear to address the Dragonfish, made by Autel.

For those interested more about the Dragonfish and how it is used in Law Enforcement, see the Autel company’s promotional video here.

So our prior blog posts about drones here and here.

The use of automated license plate readers started off quietly in the United States. In the 1990s car washes and pay parking lots would discreetly use the automated readers to keep track of their customers. It was the British, really, who pioneered the use of plate readers for security purposes, circling London with automatic license plate reading cameras in 1993 to help stop IRA bombings. While the British had longstanding conflict with the Irish Republicans, the U.S. had less of a reason for a security state apparatus until the terrorist attacks on September 11, 2001. In the legislation that followed, federal authorities increased the number of automated license plate readers along the US border checkpoints. Unlike some aspects of the Patriot Act, for example, the increase of license plate readers was not controversial. The nation was at war, and US courts have always held that travelers at border check points had diminished expectation of privacy. However, the problem with the use of any technology to fight terrorism is that the specific tactic gradually starts to be implemented to fight everyday crime, and not just grave threats to national security. Soon after the automatic license plate readers were rolled out at the US border, customs agents noticed that they were getting alerts for numerous stolen vehicles crossing the border. “The beeping plate reader, which goes off anywhere from four to eight times a day, inspectors here say, has been a source of frustration since it showed up.”  The customs agents weren’t staffed to make arrests for stolen vehicles and couldn’t take action. But that all changed gradually over 20 years.  And today license plate readers are ubiquitous, and now the  police even use the plate readers for parking enforcement. Which brings us to the question: just how often are license plate readers being used in our community today?

It is a little bit difficult to say exactly in what ways law enforcement uses automated license plate readers. The police are not always transparent about their investigatory activities. The city of Tacoma used their Stingray program to eavesdrop on calls and hid this from the public and even from judges, and the city was penalized for this. The police also are known to hide license in items such as traffic cones or plants.  However, in Spokane the license plate readers are commonly placed on the roof of patrol vehicles.

We do know from the promotional material of the companies that make plate reader that they can track vehicle multiple times per day, can tell where the vehicles typically park at night, and what other vehicles it usually parks near or travels with. Unlike other states, Washington does not have legislation that governs the use of automated license plate readers (ALPR). A draft bill was proposed in the legislature but it did not pass.  The Spokane police have a policy that “ALPR data may be released to other authorized and verified law enforcement officials and agencies at any time for legitimate law enforcement purposes.”  This language would seem to allow the Spokane police to share their data with ICE for the purpose of tracking immigrants.  Some states, like California, prohibits the sharing of ALPR with federal agencies or other states.  There is nothing in the Spokane policy to prohibit the sharing of the license plate tracking of women who might travel to Washington to receive an reproductive healthcare. The Spokane police policy also does not limit the retention of the data for any specific period of time. One of the fears is that the data could be used to target political dissent or to target specific groups.  The federal government has used mobile license plate readers to track the attendees at gun shows. Additionally racial justice protestors have been tracked as well as travelers from other states during quarantines. License plate tracking isn’t limited to law enforcement. The Spokane Valley Mall uses automated license plate readers to monitor when and where people are parking at the mall and shares all this information with law enforcement automatically. Businesses that repossess cars use ALPR and maintain a huge database of scans in called Digital Recognition Network (DRN). Law enforcement can access the DRN, but the plate scans collected are crowdsourced by repo men all over the country who use ALPR to passively scan the license plates of every car they drive by.

ALPR is used in criminal court cases in multiple ways. If a stolen vehicle or a vehicle associated with a suspect is seen by an automated license plate reader, the police receive a real-time alert. If a patrol vehicle is nearby, the vehicle can be stopped after the police confirm the correct plate number. Courts have allowed the police to use the ALPR database because the plate scans were collected in public view. The evidence isn’t gathered by an intrusion into someone’s private space. The court decisions are premised on the idea that ALPR does not “follow a person around”, rather ALPR provides just snap shots in time. Several courts have cautioned, however, that if the ubiquity of ALPR ever is such that a person’s tracking is continuous, then that database should not be accessed by law enforcement on whim. Rather the police would need to have probable cause and likely need a warrant. In this sense, ALPR risks being a victim of its own success. The more data the companies collect, the greater the likelihood that law enforcement could no longer routinely access the information. If the police wish to track someone based on their cell phone location, they need probable cause and a warrant to access these records from a phone company.  This was the holding of Carpenter v. U.S.  If license plate tracking becomes too pervasive “ALPRs may in time present many of the same issues the Supreme Court highlighted in Carpenter.” See U.S. v. Yang.  (Also see the case of Commonwealth v. McCarthy which explains that in depth tracking by ALPR would require a warrant.) The other possibility is that the Washington Supreme Court may decide that ALPR tracking is becoming so problematic that it violates the privacy guarantees of the Washington State Constitution, which have been held to be greater than the privacy guarantees of the U.S. Constitution.  Until there is a ruling that strikes down the practice of ALPR, defense lawyers are left with the duty of asking the right questions in preparing their criminal cases.  Defense lawyers should ask for a copy of the relevant records from the license plate database and should ask the investigators about the investigatory techniques.  As with the case of Tacoma’s Stingray program mentioned above, the police sometimes will try to cover up the breadth of the surveillance that they use. There are some circumstances where the investigators would rather dismiss a relatively minor charge rather than submit to an interview where they have to answer questions about surveillance programs.

See our prior post on on police red light cameras, surveillance drones, and first amendment issues.

Newsreaders today learned of the problem of Matt Colvin of Tennessee. When hand sanitizer started to run out on March 1^st, he drove across Tennessee and Alabama clearing out any remaining last bottles from store shelves. His plan was to sell it for a profit, and did so on Amazon and eBay until they shut him down. Now he has over 17,000 bottles he can’t get rid of. My question is why doesn’t the government just commandeer or requisition his supply and redistribute it?

It is common when the government declares a State of Emergency for a clause to be added granting the civilian authority the power to commandeer or requisition private property. See, for example, the recent declaration of emergency that the governor of California signed. That declaration provided: “The California Health and Human Services Agency and the Office of

Emergency Services shall identify, and shall otherwise be prepared to make available-including through the execution of any necessary contracts or other agreements and, if necessary, through the exercise of the State’s power to commandeer property – hotels and other places of temporary residence, medical facilities, and other facilities that are suitable for use as places of temporary residence or medical facilities as necessary for quarantining, isolating, or treating individuals who test positive for COVID-19 or who have had a high-risk exposure and are thought to be in the incubation period.”

Of course, the U.S. Constitution requires that just compensation be paid, but this doesn’t require the $70 per bottle that Matt Colvin was hoping to receive. According to the news article, Mr. Colvin and his brother took a 1,300 mile road trip filling a U-Haul trailer with thousands of bottles of hand sanitizer and antibacterial wipes. Most of the big box stores had already been cleaned out, but the two men found bottles still for sale in “little hole-in-the-wall dollar stores in the backwoods.”  I am sure the stores themselves could have jacked up the price, but they would not want to be accused of price gouging. But is what Mr. Colvin doing any less wrong?

It was pretty clear to everyone on March 1^st that the coronavirus posed a serious threat to members of the public, particularly those of us with compromised immune systems or persons of advanced age. I am sure at this point Mr. Colvin regrets his decision. Maybe he could sell the bottles on the street corner at cost. According to the news article, Mr. Colvin is one of dozens of sellers who have horded medical supplies. In addition to hand sanitizer, other medical supplies such as masks are in short supply, yet are being sold online for 10 times the going rate. In the age of COVID 19, more steps should be taken to curtail such abuses. What do you think? Share your comment below.

It is hard to believe that it has been almost ten years since I first wrote about the supposed phenomenon of “green tongue” from marijuana smoking. Back in 2010, I explained how the Washington Court of Appeals issued an opinion questioning the notion that marijuana smoking caused “green tongue.” The court indicated that it was “skeptical of the accuracy” of the trooper’s methods of recognizing marijuana use. Since then, I am sorry to say, courts have been a lot slower to shoot down or reject this sort of nonsense.

Take the recent unpublished case of People v. Berrara for example. In that case from last January, the court of appeals unquestioningly accepted the opinion of a justice department “expert” and stated “The effects of marijuana use may include a lack of convergence in the eyes, dilated pupils (but not necessarily), increased pulse rate, bloodshot eyes, and, in some cases, a green tongue.” Or consider the recent decision by a federal court in Green v. Laden. In that case, the court ruled that observation of a “green tongue” together with raised taste buds and the presence of marijuana amounted to probable cause.

So in the last ten years since I wrote that blog post, Washington and Utah are the only states with decisions by an appeals courts which shoots down this green tongue myth. For lawyers that don’t have a court decision backing up common sense on this subject, it is best to use the government’s own publications against them. For example in the 2007 Drug Recognition Expert Instructor Manual, it is suggested “Point out that there are no known studies that confirm marijuana causing a green coating on the tongue.” (Cannabis, Section XXI, Page 6).

The truth is it is quite hard to tell when someone has been smoking marijuana or if they are under the influence of that drug. Nonetheless, the police are tasked with enforcing new marijuana DUI laws that have per se limits for THC / blood content. These new laws have come about as a result of many states decriminalizing the possession of marijuana. Legislatures feel that in order to prevent more impaired drivers, the police need to draw a tough line on marijuana DUI. But since it is difficult to spot these drivers, it often comes down to vague and unscientific criteria like the myth of the green tongue.

Every county prosecutor has his or her way of handling low level drug offenses. By low level offenses, I am referring to, for example, cases where the police find a baggy with a little bit of heroin residue in the back seat of a car, or perhaps a pipe with methamphetamine residue. While the possession of any amount of such drug is a felony, prosecutors typically have alternative programs for such offenses. It appears that the Stevens County Prosecutor is beginning a new diversion program that would include cases such as this. The program is not limited to low level drug offense. It also appears to include drug-related misdemeanors and driving while suspended charges. Based on early versions documentation that I received as part of a public records request, it appears the duration of the program varies from 3 to 12 months.  As part of the program, the prosecutor agrees not to file charges against an individual on the condition that he or she follows one or more of the following rules:

• Report monthly to the diversion counselor.
• Attempt to obtain employment.
• Pay restitution.
• Pay a diversion fee.
• Take random UA tests for drugs.
• Obey all laws.
• Take mental health or drug abuse classes.

How the program works, is if you complete all the requirements then you will never be charged with the offense and it does not appear on your record. It also appears that the prosecutors could offer diversion after the charge has been officially filed.  This is called a “post-filing” diversion as opposed to “pre-filing” diversion.

A sample copy of a diversion contract is attached here.  For more information, please contact our office.

When a student is facing a possible university expulsion for an allegation of rape or sexual assault, that is pretty serious, and a student is entitled to certain procedural rights. I wrote about a decision last year by a Washington court that held that a student was entitled to have an attorney speak on his or her behalf and to assist in asking questions of witnesses. Since then, some universities, such as Washington State University, have avoided having the accuser submit to cross-examination by not having her participate in the preceding at all. That practice was called into doubt this week but a decision from the 6th Circuit entitled Doe v. Baum. The court ruled that a college student in a Title IX hearing is entitled to a live cross-examination of his or her accuser, at least when the determination by the school comes down to a credibility judgment. The court ruled:

Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives. Nor can the fact-finder observe the witness’s demeanor under that questioning.  For that reason, written statements cannot substitute for cross-examination.

This court decision effectively ends the practice of many schools to have the single investigator model, i.e. where an investigator determines credibility with separate interviews of both sides. The new court decision will essentially compel the participation of the accuser in the hearing, which is something schools such as WSU have not done to date. In fact, Washington State University enacted a regulation in the last couple of years which purports to prohibit subpoenaing the accuser or complainant.

For questions about Title IX cases, please reach out to our office.

When people say “expungement” in the legal system, they are usually talking about getting a criminal conviction removed from a person’s record. But there is another type of “expungement,” and that is forcing law enforcement agencies to remove from their database any DNA they have collected from you. It usually works like this: 1) The police arrest you and you consent to giving them a DNA sample, or  2) The police get a search warrant from a judge to take a DNA sample from you. Under a new law in Washington, if you are found “not guilty” the police can be forced to remove your DNA from their system. The new law provides:

A person may submit an application to the Washington state patrol to have his or her DNA reference sample data expunged from the WSP’s DNA identification system in cases where: (i) The person’s DNA reference sample was collected and entered into the system and (ii) the charges against the person were dismissed with prejudice or the person was found not guilty.

The law also refers to the authority of a court to order “the destruction of DNA reference samples contributed by a defendant who was charged and acquitted.”  So last month, when I represented a man who was found not guilty by a jury of his peers, I filed a motion with the court asking for the court to order the WSP and the EWU police department to destroy his DNA samples.  A copy of the motion (with the names redacted) can be found here.  Yesterday, I found out the motion was granted and I will next serve the police agencies with a copy of the court’s order.

The right of DNA expungement is important as an increasing number of police agencies across the country move to collect more and more DNA samples from suspects, witnesses and even victims. A new law was proposed by this legislative session in Washington state that would actually require the police to warn suspects that they have a right to have their DNA expunged if they are ultimately found to be “not guilty.”  The  proposed law provided:

An entity collecting a biological sample from an adult charged with a criminal offense or lawfully arrested for a criminal offense when there has been a judicial determination of probable cause, as required in this section, must provide the person with a notice of the rights to expungement…

However, as I mentioned, this law (HB 1138) was not enacted into law because it did not receive enough support. Maybe this will be the subject of future legislation.