Author Archive

I notified Ferry County recently of my intention to give up the legal contract for GMA (Growth Management Act). I have defended Ferry County from GMA appeals for 12 years. For five of those years, I was the elected prosecutor. When I did not run for re-election in 2002, the county commissioners kept me on for a “temporary basis” that has stretched on to today. The work has been exciting, and was constantly changing. I worked with eight different county commissioners. I watched each one learn a great deal about the complex Growth Management Act, and watched their outlook on the law change as the law itself changed. When I first started representing the county, a lawyer on the coast told me that there was no such thing as a GMA expert. The law was too new, and everyone, including the Growth Management Hearings Board was still learning as they went.

I decided to give up the contract this year because I got too busy with my criminal work. I have had three homicide jury trials this year already, and have one more to go. These homicide cases obviously take a lot of time. Also, another reason I gave the work up was some of the people on the planning commission that I enjoyed working with have moved on.

My last day will be August 31st. My only hesitancy in leaving is my concern about the defense of the county from new threats that have emerged in the last year. The groups Riparian Owners of Ferry County and the Stevens County Farm Bureau have both filed recent appeals or petitions against Ferry County. The cases were soundly rejected by the GMA Board, and no appeals to court followed. But further appeals from the Riparian Owners of Ferry County and the Stevens County Farm Bureau would mean a considerable increase in defense costs on top of what is expended to defend the county from Futurewise and the Concerned Friends of Ferry County.

I may still do some GMA work for private clients from time to time. Since I have been in private practice, I have on occasion done GMA work in other counties. I represented private landowners and farmers in GMA appeals in Stevens County against a city government. Additionally, I have done some consulting work to private parties in Okanogan County. We will see what the future holds.

I blogged last month about Northwest Justice, and their Tenants Rights class in Colville.  See post. Now the class is coming to Republic, WA.  You need to sign up in advance, and the class is 9 to 12 at the Northern Inn Conference Room on July 23rd.  I didn’t attend the class in Colville, but I would imagine the class would help educate tenants about their rights on such matters as landlord entry for inspections, a tenants options when a landlord delays repairs, and what to do when you are behind on rent, what your rights are when facing eviction, and what to do when a landlord doesn’t return your deposit.   The class is a good public service because a lot of attorneys (me included) do not handle landlord-tenant matters.  Another good resource is here.

I just finished reading Murder in Italy by Candace Dempsey, a book about the murder trial in Italy of Amanda Knox and Raffaele Sollecito.  The book is disturbing in its coverage of the media in this case, particularly of the British and Italian press.  Candace Dempsey is an award winning writer and blogs for the Seattle PI.   In her book, Dempsey documents several efforts by British tabloid Daily Mail to pay UW classmates of Amanda Knox for stories about her.    The British tabloid Telegraph.co.uk alleged that after Amanda Knox found out her roommate had been murdered, she went out on a shopping spree for lingerie.   In fact, she had to buy new underwear because the police cordoned off her apartment.   Nevertheless, the Telegraph quoted an Italian shopkeep as offering the opinion that she did not show remorse in the right way.  This seems like one of those stories that was paid for.  In other instances, the Italian authorities improperly took the diary of Amanda Knox and leaked it to the press.

The British and Italian tabloids that wrote these sensationalistic stories seem to ignore a classic rule of journalism, i.e. the two source rule.  Under the two source rule, a journalist would seek corroboration from a different source for scandalous allegations like the above.   The journalistic codes of several American tabloids in the U.S. operate the same way.  I remember being contacted a while ago by the National Enquirer about a murder case I was prosecuting.  They interviewed me for about ten minutes, and declined my offer to send down court documents to back up what I claimed.  “That won’t be necessary” I was told.   The paper than ran a story based on what I said alone.   I do remember that the reporter often would try to get me to say sensationalistic things.  The reporter, who had a British accent incidentally, would say, “I don’t want to put words in your mouth, but that sounds outrageous!”.  When I just answered “uh-Huh”, he just repeated the same “question”, but I never took the hint and said “outrageous” for him, which was what he apparently wanted.

Much of the bad press coverage mentioned in Candace Dempsey’s book didn’t even seem intentional, rather it was just sloppy.  For example, the tabloids printed a supposed excerpt from Amanda’s diary, that read as follows:

That night I smoked a lot of marijuana and I fell asleep at my boyfriend’s house.  I don’t remember anything.  But I think it is possible that Raffaele went to Meredith’s house, raped her and then killed her.  And then when he got home while I was sleeping, he put my fingerprints on the knife.  But I don’t understand why Raffaele would do that.

In reality, Candace Dempsey explains that this excerpt was a bad translation of English to Italian, and back to English.  The actual text of the diary was:

Raffaele and I have used this knife to cook, and it’s impossible that Meredith’s DNA is on the knife because she’s never been to Raffaele’s apartment before.   So unless Raffaele decided to get up after I fell asleep, grabbed said knife, went over to my house, used it to kill Meredith, came home, cleaned the blood off, rubbed my fingerprints all over it, put it away, then tucked himself into bed, and then pretended really well the next couple of days, well, I just highly doubt all of that.

In another instance of bad translation, Amanda Knox’s childhood soccer-field nickname “Foxy Knoxy” was translated by the Italian press as “Volpe Cattiva”.  Volpe meaning fox, and Cattiva meaning bad, wicked or naughty.

In the U.S., we learn in school that irresponsible journalism is just the price we pay for having a strong first amendment, and a free press.  But in Italy, you have to wonder, because the freedom of the press is much more limited.  The Italian courts are still full of criminal liable charges which would be unconstitutional in the U.S. under the Supreme Court decision of New York Times v. Sullivan in 1964. In fact Amanda Knox is now facing criminal libel charges in Italy for maintaining that she was hit in the head by Italian investigators when they pressured her to confess during an all-night interrogation. We should also recall how much harassment Italian journalist Mario Spezi has faced from the police.  See here.

In light of the Italian government’s strict control of the press, why were the false stories about Amanda Knox and Raffaele Sollecito allowed to continue?

Last summer, I wrote a post about the Amanda Knox case, and mentioned how King County Superior Court Judge Mike Heavey was among the local people trying to help Amanda.

Judge Michael Heavey

I wrote that Judge Heavey wrote to the to the Italian council that regulates judges to protest the leaks from the prosecutor, police and prison officials to the tabloid press.  Well, I read last month in Mary Whisner blog last month that the judge was accused by the Judicial Conduct Commission of violating judicial ethics rules by writing that letter.  The complaint alleges that Heavey misused the prestige of his office by advocating for Knox and criticizing the Italian authorities prosecuting the case.  The complaint alleges that Heavey may have violated the state rule that judges “should not lend the prestige of judicial office to advance the private interests of the judge or others.”  Apparently, what real irked the commission is that Heavey wrote the letter on official court stationary.  In Heavey’s response that he filed with the commission, he seems to concede that he should not have used official stationary.  Judge Heavey’s daughters attended the same school as Amanda Knox.

My question is this:  Since when can’t judges (at least in their private capacity) write letters to speak out on civil rights abuses overseas?  If the judge had spoken out in defense of Aung San Suu Kyi in Burma, I don’t think the judicial conduct commission would have cared.  Maybe when the country is a fellow NATO country things are a little different.  Also it should be pointed out that Judge Michael Heavey made it very clear that he was writing the letters not as a judge but as a father.  Doesn’t that make a difference?  Let’s buy Judge Heavey some of his own stationary at Office Depot, and then maybe the CJC will dismiss the charges. 

For prior posts on the Amanda Knox case see here, here, here, here, and here.

The City of Seattle released a new page on their website that maps crime locations.  See site.  It looks like a mashup of Google Earth and a sex offender map that the King County S.O. provides.   But in this database multiple crimes are listed at the address that they occurred.  In addition, you can click the link to the individual icon to see a copy of a corresponding police report.

Seattle crime map shows locations of various offenses with links to police reports

According to the Seattle Police Department press release, the site was developed to provide access to crime information that people were asking about, and also to further the department’s goal of transparency.   The new site is so popular that the site crashed due to the number of visitors.  The site is interesting, and everyone can see the crimes in their neighborhood, but it is hard to see what the real practical purpose of the site is.  My older son goes to college in Seattle, and when I ran the crime stats in his Belltown neighborhood for the last 30 days, I did see that a man was shot to death a block away from my son’s apartment.  Under the city’s monopoly-like icon system, a homicide is represented by a black figure lying prone with a red background.   As a criminal defense lawyer, I can’t really think of much of a practical purpose this site would have for my practice.  The press release did not mention how much this new site cost, or how expensive it is to maintain.  I do know that Seattle has had a budget deficit, and was contemplating layoffs last year.   Under the city’s icon system, each type of crime has its own symbol.  The only crime that does not seem to be listed are sex crimes.   This was done to protect the identity of the victim.   You have to wonder a little about how this would affect the real estate market in Seattle.  Are prospective home buyers going to consult this map?  Particularly when a viewer zooms out, Seattle does seem to have a lot of crime.  I have got to believe that the biggest fans of this site are going to be amateur sleuths who will study the map with an OCD-type fixation on patterns of crimes.  Remember the Green River Killer and how many people followed that case and “assisted” in the investigation?  If you click the icon on this new map, it is amazing how much data is in the online version of the police report.  Below is a copy of the report pertaining to the most recent shooting in Belltown. (Click on the image for better resolution)
  

What do you think of this new site?

Think about the last time you received a traffic ticket.  The officer writes down your name and address, vehicle information, and then he or she signs the ticket, right?  Well, when a traffic camera catches you driving through a red light, it works a little bit differently.  The officer reviews the photos at a computer terminal and “signs” the tickets electronically, simply by pushing a button.  The ticket is then printed out in another state, and it is mailed to you and the court.  Attorney John Clark of Spokane is challenging this process; he points to the law that requires an officer’s “signature” on each ticket.  See article.   Does a computer generated signature count?  How many of you have signed a check or signed a rental agreement with a computer generated signature?  Probably not many.  However, my guess is that the court will uphold the legality of these computer-generated signatures.  While we typically think of a signature as a person writing their own name, usually in cursive, a signature can take many forms.   According to Black’s Law Dictionary, 5th edition, “A signature may be written by hand, printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another…And whatever mark, symbol, or device one may choose to employ as representative of himself is sufficient.”  Additionally, while it may not be widely known, the “electronic signature” is actually becoming more and more common.  It is not like the police invented this practice.   Last year, when I borrowed money for my older son’s college tuition, I “signed” the master promissory note online with an electronic signature.  I guess we will see how the court rules on this whole thing.

Speaking of red light tickets in Spokane, I saw last week a photoshield on a license plate.  A photoshield is a clear plastic cover a person buys to put over their license plate to prevent a red light camera from reading their plate.  The cover is transparent but creates glare for the traffic camera.  The same glare effect can also be created by a spray-on can.  These devices have already been outlawed in some states, such as Pennsylvania, but are still apparently legal here in Spokane.  We will see how long that lasts.   Below is a video from Tech TV on the subject.   As an attorney, I would advise people to avoid these products.  Let’s say you use this product on your car, and you do actually injure someone in a traffic accident.  How is it going to look to a judge or jury when the state trooper testifies about the covering to your license plate?  There is a special term we use in the law to describe a plan, formed in advance, to break the law.  The term is “premeditation.”

For previous stories on the intersection of technology and the law, see Drones and Privacy, C.S.I. High, Taser Cams, Robbery on Video, & Twitter and Public Meetings.

The Republican Spokane Prosecutor candidates will square off tomorrow (Monday the 21st) for the first time in a debate hosted by the Republicans of Spokane County. The three Republican candidates are Steve Tucker, David Stevens, and Chris Bugbee.  It starts at 6:30 p.m. at Quality Inn Suites at I-90 and Argonne in the Spokane Valley.  See story in the blog Spin Control.  The “moderator” will be Sheriff Ozzie Knezovich.  You have to wonder a little about what they were thinking in having Knezovich handle this thing.  It seems that the best moderators are the ones who do not draw attention to themselves, and rather help educate the voters about the candidates.  Ozzie Knezovich may have not endorsed any particular candidate, but he is hardly impartial.  The incumbent Steve Tucker is actually Knezovich’s lawyer, at least in the sense that Tucker is the county attorney, and his office gives legal advice to county departments.  Knezovich is also busy himself in pushing for the new jail he wants, and this project has been hampered somewhat by the fact that Steve Tucker has had a hard time filling the current jail with convicts.  Knezovich announced layoffs of 57 jail employees in Spokane last month.  See story.  Meanwhile the Spokane Police Guild has already endorsed one of Tucker’s opponents, Chris Bugbee.  The Guild, in a public statement, opined that Tucker is too inclined to settle cases, and that Bugbee is more inclined to “fight regardless of the consequences.”  The other thing about the debate is that the public who attends will want to hear about the candidates from their prospective, not necessarily from the prospective of the sheriff.  The Spin Control blog jokes with readers that at least having the Sheriff there will keep the peace.  But my guess is that the event will be pretty bland.  A better bet for excitement will be across town, as the Spokane City Council considers again an ordinance granting more powers to the local police ombudsman.  The City Council meeting is at City Hall (of course) at 6 p.m. the same night as the debate.  I have blogged in the past about the need for reform in this area.  The new proposed law before the city council would give the independent ombudsman greater authority by conducting independent investigations of police officer actions.   Lately, the ombudsman reversed his stance and is now asking the council for the right to examine allegations of police misconduct independent of the police internal investigation.  Apparently he had said last year that this was unnecessary.   Some of the same people who have been pushing for police reform are also strong critics of Steve Tucker (see this blog for example).   It looks like Tucker will get a little break Monday night, as proponents of police reform cannot be in two places at once.

A couple of years ago, the state Access to Justice Board tried to increase the presence of pro bono legal services in the rural parts of the State.   The Northwest Justice Project opened four new offices across the state, including an office in Colville.   The office is at 132 W 1st Avenue where the barber shop used to be.  It is right next door to Cafe 103.   The Northwest Justice Project (NJP) is a not-for-profit statewide organization that provides free civil legal services to low-income people.  For you Facebook junkies, the NJP just started a site right here.  It is low on content and friends, but was just started last week.  What does NJP offer?  Well, they are having a class in Colville on your rights as a tenant.  I don’t do eviction cases, so I was glad to post their flyer in my lobby.  The class will be taught by NJP lawyer Kerry Summers and one other lawyer whose name escapes me.  If you live in Ferry or Pend Oreille County, you don’t have to drive to Colville.  There will be classes coming to Republic and to Newport too I believe.

Dennis Morgan is running for prosecutor this year against Mike Sandona.  As I mentioned in a blog post last April, appeals work can be pretty low profile.  At least that used to be true before TVW.  TVW is the CSPAN of Washington State.  Dennis Morgan is often on TVW because he often makes the drive from Republic to Olympia to argue cases at the  State Supreme Court.  Dennis Morgan has been practicing for about 35 years, and is recognized State-wide for his legal abilities. Check him out in his most recent appearance on TVW.
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If you look closely, you can see some of the Supreme Court Justices I have blogged about in the past.  Justice Richard Sanders is present, who I blogged about here.   Also, Justice Gerry Alexander is present, who I blogged about here.

The Dennis Morgan / Mike Sandona prosecutor race is set for August for the primary, and November for the general election.  Morgan’s Facebook campaign page is here.  I look forward to seeing the candidate’s night featuring Dennis Morgan and Mike Sandona.   The general election will decided the race for Ferry County Prosecutor on November 3rd, 2010.  Mike Sandona was elected to the position in November 2006 in a race against James Von Sauer and Alexander Wirt.

I was looking at the Spring/Summer issue of Mac|Life this week, and was a little blown away at the announcement that private drones would soon be available to “surveil you’re enemies from above.”   If you ever tried an old remote-control helicopter, you know that they are shaky and unreliable, and often crash.  This new flying machine is a quadricopter (four rotors), and comes equipped with two video cameras.  You control the drone with your iphone, and it streams the video back to your screen.  Check out this YouTube clip for an idea of how it works:

You have to wonder about the writers at Mac|Life who suggested that this invention is the “best app ever”.  Mac|Life’s adoring “review” of this product has no thoughtful discussion of its potential for abuse.  It is one thing to understand theoretically that the C.I.A. can read a license plate off of your car, or to know that Google Earth has a grainy photo of your backyard online.  But it is another thing entirely for the geeky neighbor kid to be flying this around outside your second story window.  It is one thing to be “watched” from above, and another thing to be watched from all sides.

I remember in law school learning about the legal principle that states that a property owner owns his or her parcel all the way from the center of the earth up to the heavens.  I looked this principle up again today, and the notion dates back to William Blackstone, who in 1766 wrote  it in Latin: “Cuius est solum, eius est usque ad caelum et ad inferos.”  So is it trespassing to fly this over your neighbors house and spy on him?  As with most laws in Washington, the RCW code takes a while to catch up on new technology.  Example:  In July 21st, 2000, a perv named Richard Sorrells ran around Seattle Center with a mini-video recorder in his hand that he pointed up girls skirts.  He was arrested, but he beat the charges because he never actually touched the girls, and there was no law that prohibited such filming.    Well, it took about three years, but the slow-pokes in our state legislature finally figured out video cameras were now smaller than a Super 8 mm.  On May 12th, 2003 the legislature enacted RCW 9A.44.115 which made such filming a felony.  How long will it take for the legislature to prohibit someone from buzzing a drone through your yard while you are having a barbecue?

Would it be permissible for the police to fly a drone over your garden to look for marijuana plants growing?  It will be interesting to see how how this develops.   Basically, under Washington law, the police are allowed to fly over your house and look for marijuana gardens.  The State Supreme Court ruled in State v. Wilson (1999) that such a flight does not invade a persons privacy as long as the planes comply with the FAA rule that fixed-wing aircraft remain at an altitude of 500 feet.   Currently, the only marijuana-spotting drones in use by law enforcement in the U.S. are in Northern California.  There, the Forest Service uses drones to look for large marijuana gardens on public lands.  Under law, an individual has a lesser expectation of privacy while on public land, than at his home.  In Europe however, the police have begun to use drones to fly-over and observe activities on private property.   The police in the U.K. used a drone to catch a car thief, before being told such use was not allowed without a permit by the UK’s Civil Aviation Authority.  See story.  In the Netherlands, the police have begun using drones to look for marijuana grows.  See video:

Is it just me or is this drone technology pretty scary? Where are we going to be in 5 or 10 years on this issue? What do you think?