Author Archive

I blogged last month about judicial races in Ferry and Okanogan County.   Now it is time to catch up on prosecutor races in this area.  In Stevens County, Chewelah attorney Patrick Monasmith recently declared his candidacy for the position of Stevens County Prosecuting Attorney against Tim Rasmussen.  You may remember that Monasmith was one of Governor’s Locke’s two finalists for appointed Superior Court judge in ’03.  For more on Monasmith, check out the article by Jamie Henneman in the  Statesman-Examiner.

In Ferry County, attorney Dennis Morgan has declared his candidacy for Ferry County Prosecuting Attorney.   Dennis Morgan has been a lawyer for about 35 years and was an elected judge in Adams County in years past.  In the years he has lived in Ferry County, I often call on him for advice on legal issues in criminal law that I face.  Morgan has recently focused a lot of his practice on doing appeal work, and that means that he has kept a lower profile locally.  However, he has done some major criminal jury trials here in Ferry County, including many cases in which the defendants have faced potential lengthy prison terms.   Although I consider the incumbent prosecutor Mike Sandona a friend, I decided to back Dennis Morgan and hung one of his signs at my office.  I didn’t make my decision to support Morgan based on friendships, or based on my law practice, or any contract work I do with the county.   I made the decision from the perspective of  a community member, and as an individual raising a family in the area.  I think Dennis Morgan has the work habits, the legal mind, the gravitas, and the fair-minded temperament to serve the community in the very important roll of prosecutor.

Since I haven’t blogged in a while here at Graham Lawyer Blog, I figured I would explain why.  In late March my blog was hacked by spammers who inserted a bunch of hidden links to pharmaceutical dealers in India, and an apparent effort to boost the google ranking of those suppliers.  I had to call in an expert to fix my blog.  Also, I was out of town on a murder trial in Okanogan County that kept me pretty busy.  I had the pleasure of working with two lawyers down there named Anthony Frey and Sunshine Poliquin.    I don’t usually blog about my own cases, but for those interested you can visit the Omak Chronicle, the Wenatchee World or the Okanogan Valley Gazette.

In the weeks to come, I hope to cover more on the judicial races in Eastern Washington, the prosecutors race in Spokane county, and how candidates are using the internet in new ways.  I also blogged last year about coaching a mock trial team for the local high school.  This year I will be coaching the mock trial team for Curlew high School.  When I get the date of the competition, I will let you know.  It is usually pretty entertaining to watch.

The elected school Chief Randy Dorn plead guilty to DUI today in Orting Municipal Court today.  Already in the comment section of article in The Olympian, the public is jumping on him for setting a bad example.  One person posted the comment: “The kids are saying ‘see, it can’t be too bad if our schools leader does it’.”   That seems like a stretch – I am sure the kids really don’t give a hoot about the State’s elected schools chief, or even know that we have one.  How many of you knew who Randy Dorn was?  Besides filling the pages of The Olympian, this seems like a non-story.

“How he handles it will more likely determine what the outcome will be than the action itself,” said Seattle political consultant Cathy Allen of The Connections Group.  If convicted of the charge, Dorn, 56, will have to admit wrongdoing, apologize and promise to keep clean, she added.  “The public is pretty forgiving as long as (a politician) is apologetic and takes steps to make sure it never happens again,” Allen said. But public officials who try to justify their actions – or, worse, lie about them or ignore them – can find themselves in trouble, she added. In those cases, she said, “the court of public opinion can come down pretty hard.”

The interesting thing is that Randy Dorn plead guilty “straight up” meaning he did not get the charge reduced.  I am sure other Washington lawyers would agree, just about every DUI that comes in on someone who only blew a .11 would get reduced to Negligent Driving First Degree, if they are 56 and have no priors, and no accident resulted.  Negligent Driving First Degree is driving negligently while exhibiting the effects of having consumed alcohol, and this crime counts as an alcohol related offense.  Usually it is the repeat offenders in Washington that get really hammered  in court.   Is it possible that Randy Dorn turned down a plea offer to reduce the charges just to avoid allegations that he is avoiding accountability?  I have blogged in the past about how public officials sometimes get accused of getting special deals on DUIs even when they were treated like everyone else.  See here.  The funny thing is even the City Police Chief of Orting commented to the media that the charge may be reduced.  See prior article.  It looks like Randy Dorn would have pleaded guilty to the offense no matter what just to get the matter done and over with before the time he is up for re-election in 2012.

I read in Italia! recently a story about reputed mafia boss Francesco Di Stefano, who fooled the Italian authorities into releasing him from prison due to health problems.   Francesco Di Stefano, who was serving a 30-year sentence, pretended to be suffering from anorexia and “post-traumatic paraplegia”.  He apparently faked the paraplegia and went on a crash diet until he was down to 84 pounds.  The Italian prison released him to serve the remainder of his sentence under house arrest at the residence of his wife in Bologna, in northern Italy.  The mafia boss then fled and was missing for sometime.  He was later found by police driving around down in  Sicily in a sports car.  When asked why he was not in a wheelchair, he is claimed to have replied: “It’s a Miracle!”  You have to at least admire the force of will that the man would have to have in order to bring his weight down to 84 pounds.  The man was only 36 years old.   This sort of thing would never happen in the U.S.   The system here is real hard-nosed about releasing even the very sick from prison.  I just don’t recall it ever happening.  I know when many states enacted mandatory life sentences and abolished the parole system, many people wondered if someday the prisons would start looking like nursing homes.  I anticipate this will be a budget issue some day.  I have blogged in the past about such budget issues, see here.  Usually in American prisons, the staff has significance experience in handling inmates with serious medical problems.  however, local jails are a different story.  Usually the staff of local jails are in a hurry for sick inmates to be released or sent off to prison.

Speaking of Italy, am I the only one who thought of Amanda Knox during the  Volturi scene in the movie Twilight: New Moon?  The movie’s heroine,  Bella Swan, travels to Italy and is greeted by the Volturi, the governors of the vampire world.  It just seemed a little too familiar to see this charismatic American girl struggle to understand a foreign process and plead her case on why she should be set free.  And Bella Swan and Amanda Knox are both from Western Washington!  I haven’t seen any other blogger make this comparison, so let me know if I am crazy on this one.

I saw an article online a couple days ago entitled: “Killer Style-The 10 Best-Dressed Murderers of All Time“.   Check out the photos of the Boston Strangler – you have to admit that he looks pretty good.   Contrast this to pictures you might see of Charles Manson, for example.  The FBI’s Crime Classification Manual categorizes  serial killers into three categories: “organized”, “disorganized” and “mixed”.  An organized serial killer tends to plan his crimes, knows how to avoid leaving forensic evidence, follows the cases in the media, and functions on a higher level socially.  The terms speak to elements and patterns of their crime of course, but my guess is that the average “organized” serial killer also knows how to put on a good appearance in court.

I usually don’t pay too much attention to how my clients dress for court.  There was only time I really vetoed a client’s choice of attire.  A defendant came to court on a probation violation for testing positive for marijuana in a UA test.  His t-shirt had a picture of Bob Marley smoking a marijuana cigarette.  I made him go to the bathroom and turn his shirt inside-out.

The clothing that someone wears varies a little from court to court.

Women are traditionally allowed to wear hats in court

I heard that in the Federal Courthouse in Spokane, a defense attorney was asked why the top button of his shirt was unfastened.   But I have seen in rural courts some attorneys who have worn jeans.  The only attorney-attire rule that really irks me is that women lawyers get to wear hats in court.   I see male defendants routinely get chewed out by judges for forgetting to take their hats off.  I think it would be interesting for a man and woman with identical hats to walk in together to court and see what the judge would say to them.  That sounds like a good set up for a test case to bring to the Supreme Court.  The problem would be finding a guy in Eastern Washington willing to wear a matching beret or a sun bonnet with his wife.  I know of one male lawyer who would probably do it.  (Sorry inside joke).

By Steve Graham

In the last ten years, police in Washington State have paid a lot more attention to the problem of drugged drivers.  A rookie cop can detect a driver who has drank too much alcohol, but it takes a little training and experience to determine if a driver has been using controlled substances such as cocaine, methamphetamine, marijuana or prescription pills.   After completing certain training, an officer can become a Drug Recognition Expert or “DRE”.   We have many such DRE’s here in Washington, especially in Spokane.  The problem is that people are catching on that the so-called drug recognition “experts” really are basing their opinions on many things we do not really recognize as science.  Take for example, the green tongue phenomenon.  The National Highway Traffic Safety Administration warns of the following characteristics of a marijuana DUI: “… characteristic indicators may include odor of marijuana in car or on subject’s breath, marijuana debris in mouth, green coating of tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on field sobriety tests.”  Criminal defense lawyers are not the only ones questioning the validity of this “green tongue” thing.  The Washington Court of Appeals also questioned whether a green tongue establishes probable cause for anything.  The court agreed with the defense lawyer that no probable cause existed, explaining:

Trooper Lane contends that a green tongue is indicative of recent marijuana use. Even assuming he is correct, the absence of any other indicators of recent marijuana usage, combined with the many innocuous ways to get a green tongue, indicate a lack of reasonable suspicion.  Although we assume the officer’s assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion’s fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two.

To you non-lawyers out there, that is the Court of Appeals basically politely telling the Washington State Patrol DRE’s that they are full of baloney.  These “experts” are often very well-trained and seemingly professional, and can be very convincing to jurors.  I defended a drug DUI one time where a DRE from Okanogan County claimed he had probable cause to believe that the driver was under the influence of marijuana.  The DRE wrote in his report:

“He had raised taste buds on the back of his tongue with a green coating on his tongue.  His lips were burnt and crusty on top and bottom lips.  … His thumb and index fingers of both hands were discolored.  The discoloration on his fingers and lips was consistent with holding hot smoking pipes.”

This seemed a little fishy to me, and I eagerly awaited the toxicological report on the blood test.  The results indicated that there was absolutely no marijuana (even in trace amounts) in this driver’s blood.  Instead there was methadone found in the drivers blood, just as it was found in his car.

Is there any system of accountability for the DRE’s out there?  Is anyone keeping track of all the times the DRE’s got it wrong?   The Supreme Court in Utah is also catching on.  In a court opinion State v. Hechtle, they explained:

We are troubled by the trooper’s reliance on the appearance of Hechtle’s tongue as dispositive proof of marijuana use. Even if we were persuaded to accept the State’s position that the condition of Hechtle’s eyes and tongue are presumptively suggestive of marijuana use, nothing in the record indicates either how long these conditions are sustained or how long measurable quantities of marijuana remains in the system as required by the statute.

So, I guess in some sense, the system is working – courts are catching on.  But on the other hand, what other aspects of DRE “science” are slipping past us all?

I haven’t blogged about the Amanda Knox and Raffaele Sollecito murder charges since my November 30th post.  At that time, the trial was still pending and I was pretty optimistic about an acquittal.  We know, of course, that the two were convicted shortly thereafter of murder.  In the days following the conviction, the supporters of Amanda Knox explained what the average person can do to help.  Besides making a financial contribution (see site), one supporter explained that an average person can help keep public attention focused on the case by continuing to visit news sites that cover the case.  The logic is that if the media sees that the public is still reading about Amanda Knox’s case, then the media will still cover it.  The fear that Amanda Knox supporters had was that the media would soon lose interest in the case.  Maybe this fear was partially unfounded.  As we know the Amanda Knox case is still big news.  Here is a run down of the latest:

• * Italian Prosecutor Giuliano Mignini is convicted of abuse of his office for an apparent illegal wiretapping he did on an unrelated murder case.  He is sentenced to a 16 month suspended sentence.  This can only help Amanda’s chances on appeal.  For a prosecutor to be convicted of a crime related the performance of his job duties is extremely rare.  For example, Mike Nifong was only disbarred for railroading the Duke lacrosse players – he was not charged with a crime.

• * Donald Trump publicly criticizes the prosecutor and questions Amanda Knox’s conviction.  (See video).  (Yeah, not everyone likes Trump, but you can’t beat him in terms of drumming up publicity.)  Trump also wrote how he felt on his blog.  Did you know he blogged?  I had no idea.  Other than his posts about Knox, the blog is a real snoozer.  It mostly consists of a bunch of information on real estate.
  
• * Amanda Knox’s family goes on Oprah.  Somehow I missed this.  It was probably the only time in my life that I would want to watch Oprah.  You can see part of the video here.  (You have to watch the 30 second commercial first).
  
• * Mario Alessi, the cellmate of Rudy Guede gives a statement that Rudy Guede admitted he acted alone.  Rudy Guede was earlier convicted of killing Meredith Kercher.

So, right now, we just wait for the Italian appeals courts to do their thing on Amanda Knox’s case.  I read somewhere after the conviction that in Italy the Italian appellate courts reverse about 1/3 of Italian convictions.  I would guess that Amanda Knox’s chances are even better than that.  I honestly feel that, as a former prosecutor, Amanda Knox and Raffaele Sollecito were unjustly convicted.  I often hear Italian officials criticize the American bloggers as speaking out of turn because they did sit through the trial.  I think that the trial should have been broadcast so that it could have been observed by outsiders.  It would be nice to have seen the whole trial, but the unfairness of the trial is clear from just watching from the outside.  You don’t have to watch the whole trial to see that the prosecutor’s claimed motive was preposterous.  You don’t have to observe the trial to see that the media coverage was sensationalistic and that the jurors were not sequestered.  You can tell from the scene photographs that a shoddy job was done on evidence collection.  You can see from reading Amanda Knox’s “confession” that the statement was really no confession at all, and would not have passed muster in any American court.

For earlier posts I wrote about Amanda’s case, see here, here and here.

When federal agents show up to arrest someone on a 3-million-dollar warrant, you figure that person won’t be seen for a while.   Not the case with Brian Lee Hudson.  He was arrested at a Spokane homeless shelter, yet returned a week later.  According to a story in the Spokesman-Review, Hudson “was set free when he made his first appearance in Spokane County Superior Court because necessary paperwork hadn’t arrived from Gov. Arnold Schwarzenegger’s office in Sacramento, Calif.”

I suppose it is helpful to have a good criminal defense lawyer, but sometimes defendants simply catch a break because they are lucky.  (I guess the unlucky party would be the public.)  According to the article, the suspect surprisingly went back to the same homeless shelter after he was released.  You would think that he would have hit the road and tried to hide out.  These extradition cases are a real pain in the butt for prosecutors to deal with.  A lot of people are surprised by this, but unless a defendant waives his right to extradition, a state really needs a warrant signed by the governor in order to return a fugitive to face charges.  I can remember as a prosecutor how the State of California was pretty bad about follow up on these things.   It seemed like the parole officers would always claim that they would want to extradite a fugitive, but after Washington would hold them for a few weeks, California would change its mind.  A lot of times a defense lawyer will advise his or her client to waive extradition to expedite the process.  Usually extradition among the 50 states is inevitable; it is not like extradition issues between countries.  A lot of people are not aware of it, but many Indian Tribes have extradition laws as well.  For example, the Colville Tribes have a policy codified here.  The county jurisdictions should not be bringing tribal members to State courts without the approval of the Tribal Court.  Most countries do not have extradition policies or restrictions within their boundaries.  The interstate extradition issues as faced in Brian Hudson’s case are a result of States’ rights here in the U.S.   Lately, in Washington and Idaho, conservatives have been championing the notion of State sovereignty.   My guess is that the interstate extradition laws will probably be reformed avoid problems such as what happened with Brian Hudson.

As sure as Spring is in the air, the 2010 election races continue to take shape.  This last week, candidates for the position of District Court Judge were announced in Ferry County and Okanogan County.  Attorney Henry “Hank” Rawson announced his interest in the position opening for Okanogan District Court Judge.  Judge David Edwards announced that he is retiring and is not running for re-election.  Coverage of Hank Rawson’s announcement is in the print edition of The Omak-Chronicle and is on the KMOW site here.  Rawson’s announcement sets him to run against Rick Weber, who has been on the bench there filling in for the last couple years in District Court.   Rick Weber was the elected prosecuting attorney in Okanogan County up until 2002, when he chose not to run for re-election.  The Wenatchee-World covers the race here.  Both men have served as judges and have run campaigns in the past, and my guess is that we are not going to see a lot of fur flying.  But I guess a blogger can always hope.

In the print edition of the Ferry County View, Republic lawyer Tom Brown announced his candidacy for judge in Ferry County.  The paper doesn’t have the announcement online, but for more info you can check out his Tom Brown for Ferry County Judge site.  Brown’s site announces that his campaign manager is Ray Maycumber.  Maycumber is a popular sheriff’s deputy who was recently promoted to manager of the 911 center, and has been mentioned in earlier posts here and here.  Tom Brown currently works as a deputy prosecutor covering felony cases.  His announcement set him to challenge Lynda Eaton who has not announced her intentions.

In Stevens County, no one has announced a challenge to the sitting judge.  As you recall Gina Tveit was appointed by the Stevens County Commissioners last year to replace Pam Payne, see post.

Comings soon: more on north county prosecutor candidates.

I have never met the guy, but you have to hand it to defense attorney David Partovi for the tenacious defense of his client Tyler Gassman.  Partovi went down swinging in Gassman’s defense last year on a questionable robbery conviction, and is continuing the fight.  Partovi has lodged a bar complaint against the Spokane prosecutor, agreed to interviews with the press, filed appeals, and has even taken the unusual step of commenting on the newspaper articles in the online comment section.  He even got the Spokane prosecutor personally fined for $8,000.  (Ouch!  Giuliano Mignini anyone?)  According to news reports, Partovi even wept at sentencing for Gassman.  As a result, the amount of people taking notice of this case is beginning to grow.  The most recent person to take notice is Jacob H. Fries, the managing editor of The Inlander.  Fries is no stranger to writing crime stories, having covered such matters for the New York Times and The Boston Globe.  Now the Spokane native is covering injustices in Spokane.  See his recent piece on Gassman’s case here.  The Inlander apparently is doing a series on unjust convictions in Eastern Washington, and lists a contact number on their site for people to submit ideas.

Here is what all the fuss is about.  The Spokane prosecutors had a rock solid case against a robbery suspect, and let him go with a slap on the wrist in exchange for pointing fingers at seemingly anyone he chose, including Tyler Gassman. You really have to wonder about this business of “buying” the testimony of criminals with promises of leniency.  If it is a crime to bribe a witness with cash in exchange for his testimony, how is it any better when a prosecutor “bribes” the witness by offering him or her freedom?  In 2002 the Tenth Circuit Court of Appeals ruled: “If justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so.”  Such squeal deals seemed like they would be prohibited.  However, the court overturned itself 9 days later, and prosecuting attorneys continue to troll the local jails looking to make bargains for testimony with inmates desperate for their freedom.  And that is essentially what David Partovi faced when Matt Dunham agreed to point his finger at Tyler Gassman and other Spokane locals.  Serving as Tyler Gassman’s criminal defense lawyer, Partovi sought to impeach the credibility of Dunham at trial.  Dunham’s cellmate told the defense lawyer that Dunham was making it all up to save himself, but the cellmate refused to testify.  (A criminal defense lawyer, unlike a prosecutor, can’t agree to give witnesses immunity).   After Tyler Gassman was convicted and sentenced to 25 years in prison for allegedly robbing drug dealers, the cellmate (Anthony Kongchunji) finally agreed to come forward.  Sounds like good grounds for a new trial right?  Spokane Superior Court Judge Michael Price didn’t think so.  He ruled that the defense lawyer erred by not hauling Kongchunji up to be made to forcibly testify.  Huh?  Doesn’t someone pretty much always have the right to take the fifth if they think they are going to incriminate themselves?   Apparently a police detective subtly (or not so subtly) implied that the cellmate could be facing perjury charges if he testified for the defense.  That could give any witness cold feet.

Right now, the case is on appeal.  We will wait and see.   Let’s ask Spokane prosecutor candidates what they think about this case?  Attorney David Stevens has announced his candidacy, as well as attorney Frank Malone.  Someone please ambush them at candidate’s night and let us know what they say.  Somehow, I have a feeling David Partovi will be in the front row with his hand up.

Shouldn’t prosecutor’s offices have some sort of written policy on offering leniency in plea negotiations in exchange for testimony?  What do you think?

(Photo does not depict any actual participants in this case.)

Spokane County District Court was voted among the top ten court website’s in the world.  See story.   The ranking was done by a private company called Justice Served, which provides court management services.  Sounds a little fishy. The company explains: “Limited jurisdictions are truly the “people’s court” and Spokane offers online payments, traffic postponements, traffic “mitigation” pleas and case/calendar indexes.”  I suppose it is nice that you can do all this online with Spokane District Court, because it almost impossible to ever reach a live person if you ever call their publicly listed phone number to conduct business.