Archive for the ‘Criminal Defense’ Category

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 read in the news recently the story of “El Ponchis”, the 14-year-old boy in Mexico accused of committing four beheadings on behalf of a Mexican drug cartel.   The real name of “El Ponchis” is apparently Edgar Jimenez.  According to a story in the Spokesman-Review, the Jimenez explained: “I participated in four executions, but I did it drugged and under threat that if I didn’t, they would kill me”. In the law, such a claim is called the “duress” defense.  In Washington State,  “under duress” means that a person acted under compulsion by a threat or use of force that creates a reasonable fear in his mind that if he were to refuse that he would face immediate death or grave injury. Additionally, it must be shown that the defendant would not have committed the offense if it weren’t for the threats.  However, under Washington law, and in most other jurisdictions, duress is not a defense to murder.  It is not likely that duress is a defense to murder in Mexico either.

The other problem with a duress defense is that it is typically not available when a person “recklessly” puts themselves in a position where it is likely that they would be compelled to commit a criminal act.  For example, if a person joins a street gang in the U.S. it is certainly foreseeable that that gang might require (under threat of violence) that the person commit criminal acts. It is unclear whether “El Ponchis” joined any criminal enterprise voluntarily.

As a criminal defense lawyer, I don’t see the duress defense raised too often.  Once I defended a young Mexican national allegedly found on the site of a massive outdoor marijuana grow operation in a remote section of the national forest.  It was pretty clear that he was a victim of human trafficking and was being held on the grow site under duress.  The prosecutor agreed and the defendant plead guilty to a misdemeanor and received credit for time served.

In the case of “El Ponchis” it appears that he would have certain legal advantages in Mexico that he would not have in Washington or the rest of the U.S. The newspaper story reported that the Mexican judge announced that the maximum punishment the teen would receive would be three years.  In the U.S., Edgar Jimenez could easily be tried as an adult and serve a life sentence.  For example, one time in Moses Lake, Washington, a 14-year-old named Barry Loukaitis shot three people to death at Frontier Middle School in 1996.  Loukaitis was tried as an adult and was sentenced to life in prison without possibility of parole.  I was working a prosecutor in Seattle at the time.

What do you think?  If Edgar Jiminez is convicted, we he really get only three years? What will the Mexican government do with him after he serves his time, and he is still only 17?

Remember last summer when scientists released a new study claiming to link marijuana use with schizophrenia? See e.g. Reuters article.  Let’s face it, it is the government that has the split personality disorder when it comes to marijuana laws.  Can someone explain to me why there is a mandatory one day in jail for misdemeanor possession of marijuana in an amount under 40 grams (RCW 69.50.425), but a judge is not obligated to impose any jail for a person convicted of the felony of possession over 40 grams?  See page III-279 of State Sentencing Guidelines Manual. How about the huge disparities in the way in which marijuana laws are enforced from county to county and city to city?  For example the Seattle city attorney announced this year that he was not going to prosecute any misdemeanor marijuana cases period.  See source.   But in most rural counties of eastern Washington, marijuana enforcement is still in full effect.  In metropolitan areas of Washington, large medical marijuana dispensaries are tolerated, but in rural eastern Washington things are different.  Small-time medical marijuana grows are routinely raided in Okanogan, Ferry, Stevens, and Pend Oreille counties.  A new medical marijuana clinic in Okanogan County will soon be held (see story) – I guess we will see how that goes over.

As a criminal defense lawyer it is becoming harder and harder to explain to clients that there is any sense to the system.  Under federal law, even a first-time charge of simple possession of marijuana is enough disqualify a young person from eligibility for student loans.  In Washington, proposed Initiative 1068 would legalize possession of small quantities of marijuana.  This initiative would be on the ballot next year.  But would such an initiative really pass in Washington State if a similar initiative just failed in California?  I think people are getting discouraged about any change in the marijuana laws here in Washington State.

What do you think about the disparities in enforcement?  Do you think the initiative 1068 will pass next year?

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.