Archive for the ‘Uncategorized’ Category

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.

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

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.

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.

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

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.

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?