Author Archive

According to a story in the Spokesman-Review today, a 20-year-old man was arrested for delivery of a controlled substance for selling marijuana cookies to high school kids for 3 dollars each.  According to the article, the Spokane detectives had done an undercover operation and arrested the suspect at the Pizza Pipeline on Wellesley Avenue.  The police claim the defendant sold the marijuana-laced cookies to high school kids on their lunch break from Shadle Park High School.  As you can imagine, the punishments are severe for an adult who delivers a controlled substance to a minor.  For a typical delivery of marijuana in Washington, a first time offender is sentenced to a standard range of 0-6 months.  However, the punishments for delivery of a controlled substance,(marijuana) from an adult to a minor carries a standard range punishment of 51 to 68 months in prison.  This is under RCW 69.50.406 which defines the crime as any one 18 or older who sells marijuana to someone at least three years younger.   The suspect in this case was arrested near the Spokane school.  Under Washington law, there are additional penalties for drug crimes that occur in school zones.  As a criminal defense lawyer, one of the things I would ask is who came up with the idea of meeting at a school.  In some instances it will be the idea of the police to have the suspect meet at a certain location.  I once had a case as a defense lawyer where I interviewed a drug informant, and he admitted that he and the police set up a deal to go down in a school parking lot (after the school was closed) to attempt to get a school zone enhancement.  The police officer in question denied this.  In this case, testimony from actual children who purchased the marijuana would be quite damning, but that might not be the case.  As you can see from the article in the Spokesman-Review, the Spokane police made photographs of the arrest available to the press as well as video footage.  Our government has a long history of manipulating the location of drug deals for dramatic effect in the news media.  In 1989, President Bush held a news conference and held up a bag of crack cocaine that he claimed was purchased at Lafayette Park right near the White House.  He used it as a prop in an anti-drug speech to dramatize how easy it was to buy drugs in the nation’s capital.  But later the DEA agents had to admit that it was their idea to meet at that park, and in fact the defendant didn’t know where the park was and he had to ask for directions.  See source.  In our system, it is the job of a criminal defense lawyer to ferret out the truth behind such things.

What roll did the police or informant play in the selection of the location in this Spokane case?  It will be interesting to see how this case turns out.

By Attorney Steve Graham

Police, judges, and other public officials often mess up like the rest of us by getting a DUI.   The cases inevitably make the newspaper, as well they should.  However, I am often a little surprised by how the media portrays DUI cases that are resolved with a “deferred prosecution”.  A deferred prosecution is when a DUI defendant gives up his right to a jury trial, and the case is continued for five years.  The defendant gets fives years of probation and alcohol treatment, and if he stays out of trouble then he may have the case dismissed at the end of 5 years.   Under Washington law, any DUI defendant is eligible for a deferred prosecution if he or she has not had one before.  So why is it that the news media portrays this as some sort of special deal reserved for people with “connections”.   For example, look at this headline in the Spokesman-Review: “Police Sergeant Avoids Prosecution“.   The article goes on to explain that the defendant has to go to alcohol treatment and stay out of trouble for five years.   How did the public react to this story?  Let’s look at the comments to the story that are posted online.  “Tinman” wrote: “WHERE DO I GET ONE OF THOSE ”GET OUT OF JAIL” CARDS FOR MYSELF??!!”   The answer is any district court in the State!  The forms are online here!  Last summer a city manager in Burien signed up for a deferred prosecution for a DUI, and the headline read that the judge “granted” the deal.  An angry comment read: “It seems we have a two tier judicial system, one for the rich/politician and one for Joe six pack.”  The truth is that the deferred prosecution is easy to sign up for, but difficult to complete.  The treatment is rigorous, and the conditions of probation severe.  Random UA tests are done that can detect alcohol use within a period of 72 hours.  People who complete the programs are in the minority.  I remember when I was a prosecutor, the judge and I were always glad to see someone successfully complete such a program.  Now that I am a criminal defense attorney, I always make sure that my clients know what they are getting into when they sign up for such a program.  It is truly for people who wish to quit drinking.

Article 1, Section 20 of the State Constitution reads, “All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great.”

In other words, Judges may not hold a person without bail except for defendants facing the death penalty. There is currently a pending law (SJR 8218) that would amend the State Constitution so offenses that may result in a mandatory life sentence upon conviction are also not bailable. To amend the Constitution, the matter would have to be placed on the ballot for the voters to approve in 2010. This law did not come as a complete surprise, however amendments to our constitutional rights should not be done hastily.   Defense attorneys are seeing the bail clause of the State Constitution come under attack in other ways.  Last month Snohomish County Superior Court Judge Eric Lucas affirmed the decision of a District Court that held a DUI suspect without bail pending trial because he had allegedly violated the conditions of his release.   See article.  In Spokane, I have seen judges hold defendants with bail in the amount of 20 thousand dollars before, or even higher.  But holding a suspect without bail for a DUI?  This was not even an instance of a felony DUI; the DUI at issue was just a misdemeanor. The purpose of bail is simply to assure the presence of the defendant in court and to protect community safety, not to punish the defendant.  The public defender’s office commented that this was the first case they had ever seen where a person charged with a misdemeanor is ordered held without bail pretrial.  What is next – a no bail hold for shoplifting?  Thank you to Jonathan Dichter, a Lynnwood DUI lawyer, for bringing this article to my attention through his Snohomish County DUI Blog.

The Seattle Times obtained audio copies of the phone recording of Maurice Clemmons talking to his wife in jail.  As you recall,  a few days after Maurice Clemmons was released, he walked into Forza Coffee Co. and killed Lakewood police Sgt. Mark Renninger, Officers Ron Owens, Officer Tina Griswold, and Officer Greg Richards.  The jail recordings of Maurice Clemmons are pretty eerie to listen to.  The jail phone recordings were obtained through a public records request.  Here is a partial transcript of the first one:

Maurice: I’ll kiss this bullet. Everywhere I go, I’m going to stay packing, stay ready.

Nicole: You just saying that ’cause you are upset right now.

Maurice: I put that on God. I ain’t going no more (back to prison) …

Nicole: Put your faith in God.

Maurice: I’m going to put my faith in God to kill every last one of them that come up on me. That’s going to be my faith — to kill every last one of them devils. There ain’t no such thing as justice. If there’s no such thing as justice, a brother’s gonna go ‘wild wild West.’ … They did it to me when I was young and now I’m a grown man and it ain’t happening no more.

For the rest of the recordings visit the Seattle Times article here.

You would think that if you were facing a charge as serious as capital murder, you would want to listen to your attorneys.   Well, in the Spokane murder case of State v. Christopher Devlin, the defendant apparently rejected the advice of his lawyers and beat the death penalty anyway.   Devlin is accused of murdering a witness who was expected to testify against him in an earlier assault case.  Devlin rejected the advice of his lawyer and refused to waive the thirty day notice required to seek the death penalty.  A defense lawyer will often seek to waive this to have more time to prepare a defense to the death penalty.  The State did not turn over their evidence in time, and the judge dismissed the death penalty allegation as a sanction on the prosecuting attorney.  See story.  The charge of aggravated murder still stands, and the defendant could still face a possibility of life in prison.  How does a defendant educate themselves on how to defeat a death penalty charge?  A grad-student from Massachusetts has published an online guide on eHow.com of all places.  See site.

Anyway, I am sure the defense lawyers breathed a sigh of relief when the death penalty allegation was dropped.  And it may be the case that the prosecutors breathed a sigh of relief too.  It was never really clear whether the alleged offense took place in Stevens County or Spokane County, and neither county wanted to bear the incredible expense of conducting a death penalty case.  See news segment below. The Stevens County Prosecuting Attorney, facing budget problems, flat out stated that he did not want the case. The defense lawyers wanted it moved out of Spokane.

Post by Steve Graham, Defense Lawyer.

Today in The Star Newspaper, there was an interesting story about a man arrested for an alleged robbery of a bank in Okanogan County.  The man, Brian Hickson, allegedly walked into a Coulee Dam bank and handed the teller a note that read “Give me your money.”  The teller refused saying “I can’t do that,” and Brian Hickson left.  The police stated that Hickson later told them it was a “prank”.

So does that constitute an attempted robbery?  Under Washington law, a person commits robbery when he “takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury….”  Was the alleged statement made by Brian Hickson a threat?

This case kind of reminds me about a case that went to the Supreme Court a few years ago called State v. Collinsworth.    In that case the defendant entered Washington Mutual Bank and approached the teller and demanded money.  He appeared to be “very nervous” and “fidgety,” told the teller in a “serious” tone of voice, “I need your hundreds, fifties and twenties.”   When the teller paused, unsure of what to do, Collinsworth said, “I’m serious.” As the teller started retrieving currency, Collinsworth said, “No bait, no dye.”  The Supreme Court explained that even though he made no overt threatening gestures and did not display a weapon, Collinsworth’s unequivocal demands for immediate surrender of the bank’s money, under the circumstances of the case , were sufficient to support a robbery conviction.

However, those circumstances appear to be different than the incident Brian Hickson was charged with.  When Collinsworth was charged, he was a bit more forceful with his point, and made explicit references to the dye that is used to deter crimes such as robberies.  It will be interesting to see what comes of this case.   I don’t think a jury will expect a teller to have a sense of humor about Mr. Hickson’s “prank”,  but on the other hand there doesn’t seem to be an clear legal precedent to support a robbery charge under Washington law.  It may be that the jurors will be given the option of considering a lesser charge.

By Steve Graham.

I read recently that on March 18th, 2010 there will be a training for lawyers on the subject of Indian Law. It is sponsored by the Spokane County Bar Association, Indian Law Section and Gonzaga University School of Law.  One of the speakers at the training will be my friend Juliana Repp, who I often run into in the Colville Tribal Courts.

I posted the pdf registration form online here.  The particulars are below. Back when I graduated from law school, a knowledge of Indian law was not required to pass the State bar exam.   This sort of training helps me catch up.  I do see criminal defense lawyers overlook Indian law issues in their cases from time to time.   I remember when I was a young prosecutor in Ferry County, a Native-American gentleman was explaining to a judge in State Court that he was not happy with the lawyer he hired to represent his son on a criminal case.  The lawyer was a very prominent defense attorney in Spokane, and the Judge explained to the father the attorney’s expertise and reputation in criminal law.  The father said that the attorney might know a lot about criminal law, but he did not know a thing about Indian Law.  And there was some truth to that, so the judge didn’t have much of a response.  The judge was Larry Kristianson.  I won’t tell you who the defense lawyer was.

Thursday, March 18, 2010

8:00 a.m.                   Registration and Coffee

8:30 a.m.                   Introduction and Conference Overview

George Critchlow, Acting Dean, Gonzaga University School of Law, Spokane, WA

Juliana C. Repp, Esq., Chair, SCBA ILS, Spokane, WA

Moderator

Jessica Lee-Domebo, Esq., Chair Elect, SCBA ILS, Spokane, WA

8:40 a.m.                   The Indian Child Welfare Act – Tribal and State Perspectives (Identifying an Indian Child; Tribal staffing of ICW cases; domicile; utilizing Indian Child Welfare experts; status of WA State ICWA)

Lorraine Parlange, Kalispel Tribal Attorney, Airway Heights, WA

Ricki Peone Haugen, M.S.W., Indian Child Welfare Expert, Spokane, WA

Buffy Nicholson, Social Worker III, CFS, Colville Tribes, Nespelem, WA

Brandelle Whitworth, General Counsel, Shoshone-Bannock Tribes, Fort Hall, ID

Jodi Felice, Assistant Attorney General for State of Washington, CFS, Spokane, WA

10:15 a.m.                 Break (hosted by Crowell Law Offices)

10:30 a.m.                 Tribal Court Practice; Inter-Jurisdictional Issues Arising in Tribal Courts (Tribal Court practice overview; abstention, exhaustion, removal; inter-jurisdictional issues)

Juliana C. Repp, Attorney at Law, Spokane, WA

Trudy Flamand, Chief Judge, Colville Tribal Court, Nespelem, WA

Suzanne Ojibway Townsend, Chief Judge, Confederated Tribes of the Grande Ronde Community of Oregon Tribal Court, Grande Ronde, OR

Winona Tanner, Chief Judge, Confederated Salish and Kootenai Tribal Court, Pablo, MT

11:45 a.m.                 Lunch (on your own)

12:45 p.m.                 Labor and Employment Law Issues for Tribes

(FMLA; ADA; Pension Protection Act; and Tribal Considerations in drafting Employee Policies and Procedures)

Greg Guedel, Foster Pepper, PLLC

Julie Kebler, Foster Pepper, PLLC

Scott Wheat, Crowell Law Offices, Spokane, WA

2:00 p.m.                   Break (hosted by the Kootenai Tribe)

2:15 p.m.                   The Spokane River – Keeping it Clean: Issues Regarding Multi-Jurisdictional Regulatory Oversight

Michael Chappell, Esq., Director of the Environmental Law Clinic, Gonzaga University School of Law, Spokane, WA

Rick Eichstaedt, Esq., Spokane Riverkeeper, Center for Justice, Spokane, WA

Brian Crossley, Water and Fish Program Manager, Spokane Tribe of Indians, Wellpinit, WA

3:30 p.m.                   Ethical Issues Arising in Tribal and State Multi-Jurisdictional Practice of Law

Brian McClatchey, In-house Counsel, Coeur d’ Alene Tribal Casino, Plummer, Idaho

4:30 p.m.                   Adjourn

4:35 p.m.                   Meeting and Elections for the Spokane County Bar Association, Indian Law Section

5:00 p.m.                   Reception hosted by Gonzaga University School of Law

I have blogged in the past about the Oxycontin robbers of Spokane and vicinity – see “String of Oxycontin Robberies”, “Challenge to Robbery Suspects” and “Robberies of Pharmacies“.  The legislature and local law enforcement seem to be at a loss as to how to control these crimes.  The idea was floated last year of increasing the penalties for pharmacy robberies.  When I called an acquaintance who works with the legislature, she told me that increased penalties were off the table.  The state was broke and the prisons were full.  As we know the State is closing prisons because of the budget deficit.

There was a good opinion piece in the newspaper today by Jamie Tobias Neely about some other drug related cutbacks.  Neely, who teaches at Eastern Washington University, wrote here about how recovering addicts were getting kicked out of the methadone program because of cutbacks.  I guess I had heard about the proposed cuts in the county’s methadone program last summer, but hadn’t heard the latest.

When Oxycontin robberies are covered in the press, you can tell by reader comments how the public feels about the subject.  There is no understanding about the nature of addiction, and the comments simply cry out for longer prison terms.  Some people are amused by what they perceive as the stupidity of the robbers.  The fact that the addicts are desperate is lost.  Last year, an Iraq War vet in Spokane robbed a store for Oxycontin.  Others have robbed for methadone.   Take a look at all the articles in the Spokesman-Review tagged with the term “Oxycontin“.  The stories in the aggregate make clear what can be missed by just reading one story at a time.  The addicts come from all walks of life, they often led productive lives prior to addiction, they often get started when the drug was prescribed, and they were so sick at the time of the robbery that no anticipated prison sentence would likely deter them.

Jamie Tobias Neely tells the rest of the story.  Addicts are getting kicked out of the methadone program and on to the street due to budget cutbacks that are penny-wise and pound-foolish.  Although it is possible to get a methadone prescription from a doctor, many doctors are obviously apprehensive about dealing with opiate addicts.  The Spokane methadone program requires urinalysis testing, and offers counseling.

Washington State anticipates having to close prisons,  and Spokane just laid off a number of prosecutors and public defenders.   When the addicts are kicked out of the methadone program who will be around to handle the court cases?

It looks like he took the day to think about it, but Spokane Prosecutor Steve Tucker closed the week by putting David Stevens on leave.  David Stevens, a deputy prosecutor in Tucker’s office,  announced a short time ago that he would run against his boss in the 2010 election.  See yesterday’s post.    Tucker seemed to be predicating the disciplinary action on the fact that Stevens criticized him publicly.  See Spokesman article.  From a legal standpoint disciplining an employee for running for office could be problematic.  In many prosecuting attorney offices, the deputies serve at will, and can be fired at any time as envisioned by RCW 36.27.040.  However, this general rule is trumped by any specific union contract or personnel policy in effect in the particular office.

Elected prosecuting attorneys usually face a lose-lose proposition when a deputy runs against them.  The elected prosecutor can fire the deputy and look mean and vindictive and face a lawsuit, or he can keep signing the paychecks as his employee trashes him on the campaign trail.  Keeping the election challenger on the payroll usually splits the office into two different camps, and productivity plummets.

Do you want to see what a recent interoffice election battle can do to a prosecutor’s office?  Check out Grant County.  In 2008 elected prosecutor John Knodell quit after 5 terms to serve as a judge.  Therefore the commissioners appointed Deputy Prosecutor Angus Lee to replace him, and many more senior lawyers quit, and one was fired.  Another deputy prosecutor, Albert Lin ran against him.  Angus Lee didn’t fire him, and the office was largely split into two camps of Albert Lin supporters or Angus Lee supporters.  I blogged a little about it here and here, but the definitive article is The Albert and Angus Show.   (It seems like Angus Lee is now getting the office back on track.)

While I am sure Steve Tucker was not excited about being called “an absent administrator”, it gets worse.  During the Grant County election one deputy prosecutor called Angus Lee a “c**k sucker.”  See source.

The bottom line is if you are going to run against your boss, you should quit.  This is true of any county courthouse position.  This is particularly true if you will be publicly criticizing your boss.  If you run for office to improve the office, it is not fair to stick around and cause deep rifts that ruin productivity.  A campaign is a major distraction.   I suppose ideally you would get fired, collect unemployment, have lots of time to doorbell, play the martyr, and reserve the right to bring a lawsuit.  But that is in your interest, not the public’s.

However, if the election challenger does not do the right thing and quit, the incumbent is not advised to fire him for that reason alone.  The legal authority is too murky in this area, particularly where there is a union contract.  It is probably nice not to have your opponent in your office spying on you, but if a suit is filed it will be the public who ends up paying the price.

What do you think?  Should election challengers stay or go?  Can an employee really mount a challenge against his or her boss without harming the office as a whole?

The Spokesman-Review reported this morning that attorney David Stevens was challenging his boss Steve Tucker for the elected position of Spokane County Prosecuting Attorney.

Attorney David Stevens came out swinging, and was quoted as characterizing his boss as “an absent administrator” and saying that he has seen a “total lack of leadership.”   The reporter for the Spokesman-Review, Jonathan Brunt, asked Steve Tucker if David Stevens could be let go, and Tucker reportedly said “all options are on the table.”

It will be interesting to see the fireworks in this campaign.  Attorney David Stevens has run for about a zillion elected positions in the past.  You have probably heard his name before.  Here is the tally if you haven’t been keeping track: In 2004, he ran unsuccessfully against Democrat Alex Wood for, who won the 3rd District legislative race.  Part of his campaign was to oppose gay marriage.  See source.  In 2006, he ran for District Court Judge in Spokane against Harvey Dunham and lost.  In 2008, he ran unsuccessfully against Linda Tompkins for Spokane Superior Court Judge, arguing that the bench needed more former prosecuting attorneys.

David Stevens is a 1999 law grad from UW.  Although he has lost all his races in the past, he has always been able to garner a fair amount of endorsements.  It doesn’t seem that he has a web page yet for his latest race.  In 2008, when the Spokane County Bar Association attempted to conduct a poll of lawyers on the potential judicial candidates, David Stevens refused to participate.

I blogged about David Stevens last December on the subject of his questionable decision to send a man to prison for 2 1/2 years for stealing a can of sardines from Rite-Aid.  See post.  I am a former prosecutor and there is something to be said for being tough on crime, but I really wonder about the wisdom of Stevens’ decision to use a prison bed on a sardine thief.  There are just too many other violent criminals that ought to be in there.

What do you think?  Is David Stevens the right man for the job?  Will any defense lawyers run for prosecutor this year?  Was Stevens right to tie up a jail bed for 29 months for the guys who stole sardines?