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The Klan used hoods to protect their anonymity.  Today the bad apples of North Idaho are anonymously attacking Haitham Joudeh in the comment sections of blogs.

Haitham Joudeh of Coeur d’Alene, Idaho had his truck vandalized Friday.  Haitham Joudeh is a business owner and real-estate developer who is native to Idaho.  Haitham Joudeh is of Middle Eastern descent – the vandalism consisted of the phrase “Go Home Sand Nigger” spray-painted on his truck, along with two swastikas and a slashed tire.  Check out a photo of the damage here and the article here, both from Spokesman-Review.  The Spokesman-Review article kind of hints at some of the background of what Haitham Joudeh has had to face in Idaho, but there is actually more to it.   Haitham Joudeh has been under near constant attack in Coeur d’Alene since he sought zoning approval to build some storage units in Mica Bay.  The local fire district (Mica Kidd Fire District) sought to stop the project and sought to condition the building permit on a requirement that Haitham Joudeh construct a 120,000 gallon water storage unit to prohibit.   Mica Kidd Fire District Chief Robert Crawford announced this new requirement, with a smirk and sarcasm, at a public meeting and drew laughter from the crowd when he predicted that such a requirement would likely be cost-prohibitive for Haitham Joudeh.    Haitham Joudeh alleges that the Fire District and the local grange held anti-Joudeh rallies.  Haitham Joudeh has heard many comments about his religion and his ancestry as he dares to make his living and take public positions.   The county Building and Planning Department actually did not object to the project.  In addition, after a lengthy public hearing where all sides were held, the Hearing Examiner Rebecca A. Zanetti rendered her expert opinion that the project be approved.  The Hearing Examiner studied the facts and the law of the particular case, as was her job.  The problem arose when the county politicians got wind of the anti-Joudeh sentiment in the community.   The politicians were county commissioners Rick Currie, Todd Tondee and Richard Piazza.   The commissioners struck down Haitham Joudeh’s building permit explaining that his project would draw too much traffic.  For those familiar with the rural West, county commissioners are usually pro-growth and constantly defending themselves from conservationists bent on legal challenges.   But when a “middle-easterner” with out-of-town roots proposes a big project, these Idaho private property rights activist types sometimes suddenly turn into Sierra Club types.  No wonder so many locals were confused as to why the commissioners were opposing the project.  [One local asked: ” I’m kinda confused. Most people I hear from don’t want anyone telling them what to do with their property. “My property, my business”..I paid for it, don’t tell me what I can and can’t do with it. I pay taxes. ” Isn’t this what the residents of Mica Flats are doing? Deciding what a property owner can or can’t do? ]

Haitham Joudeh complained that during the rally and the public hearing many negative comments were made about his religion and ancestry.  It is no wonder that Commissioner Rick Currie denied the permit.  He is after all a member of the Mica Grange, the group that allegedly held the anti-Joudeh rally.  Currie boasts of his membership to this group on his re-election website.   Mr. Joudeh’s lawyers raised this issue in a suit, and also pointed out that the commissioners failed to disclose their relationships with members of the Mica Kidd Island Property Owners Association, the most vocal opponents of the project.  The website used to contain links to photos of Commissioner Currie attending events with members of the association.  When you visit the website now of the Mica Flats Grange, you will see them defend this conflict of interest with the following argument: [The applicant claims that because Curry is a Grange member he should not rule on the application. The opposing view is that many elected officials, including judges, belong to Granges.] Well that is a problem too, and as we will discuss below, the judges don’t seem real fair there either.  In addition the Mica Flats Grange should know that their elected commissioner spells his name “C-U-R-R-I-E”.   “Curry” is a word often used to describe Indian food, which I would guess is probably not to popular in Mica Flats.

When Haitham Joudeh sought redress in a local Idaho court, local judge John T. Mitchell said: “You’re making a lot of harsh accusations and you don’t have anything to back it up right now, and that’s frustrating to me….  But you’ve made these accusations against our commissioners, and our commissioners have responded, and you can take all this evidence back down to the commissioners and see what they have to say about that.” This comment really makes me wonder about the judge.  He is supposed to be neutral — why does he refer to the  commissioners as “our commissioners”?  If he works with the commissioners, and they approve his budget, why didn’t Judge Mitchell recuse himself and have a judge from out of town brought in?   How does Judge Mitchell expect discrimination to be proven?  No plaintiff ever comes in on a case with the county commissioners having written in their decision that the permit is “denied due to race” or “denied due to religion.”    Rather the commissioners here overruled their own hearing examiner due to the “increased traffic”, even though the Worley Highway District reported to the county that the project would have “negligible” impact on traffic in the area.  The storage unit would be for high-end items like large boats and RVs.  Just how many times per year is someone going to drive in to pick up their 25-foot yacht?   Answer: Once in the spring and then they return it at the end of the season.

At best this is an instance of a good-old-boy system showing bias against a relative newcomer.  At worst it is the North Idaho of the past — open prejudice of religious and ethic minorities.

Haitham Joudeh has complained about all the racists things said about him online.  A quick review of the problem is that the CDAPress.com doesn’t seem to exercise the proper editorial control over comments submitted on its articles.  The paper gives people who comment the following guidelines:  “No libel (that means no NAME CALLING, OR USING PRIVATE CITIZEN’S NAMES), Use good taste, Be positive whenever possible….  THINK BEFORE YOU POST and ask yourself these questions; Is it a positive remark?  Will I be hurting anyone?” Those sound like good guidelines don’t they?  However these are the comments that are up on today’s story about the spray-paint vandalism that happened to Haitham Joudeh:

• “”I do not agree with what has happened to this man BUT,… I feel this guy brought this on himself. He has cried foul since he got here and I believe people are just plain tired of him.”
• Dollars to donuts that this guy either did this himself or had friends of his do it for him
• majority on here are obviously anti-dark meat
• I’m saying the long necked duck gets the hunters attention.”
• lol hey jim I was wondering when someone would notice the truck “
• Dude didn’t get his way on the Mica Flats deal and pulls the “race and religion card.” No bueno guy- now you’re just asking for trouble, especially with our local “history.” … Trouble finds Dude and he keeps playing the “race and religion card.”  … Trouble fins Dude AGAIN…. perhaps Dude should consider moving to California for the safety of his son.  **Idaho Native [referring to another individual making a post], your comments about the white man are the same type that got Dude in trouble here… sometimes it is better to keep your head low and mouth shut even when you are right. “

Hello CDApress.com?  Can anybody just post whatever they want?  That last comment basically just says that if you are an ethnic minority you better keep your mouth shut if you want to be safe.  That would seem to be an illegal threat that the paper should report to the police along with the commenter’s IP address.  I read a lot of online newspapers, and I just don’t see other papers allowing such statements.  Other papers have a button where you can click “flag for removal” so the comment will be flagged for busy staff to review.  It is not my intent to “blame-the-messenger”, but newspapers need to be careful not to be made unwitting accomplices to those who would seek to run Haitham Joudeh out of town.  During the Jim Crow era of the South, newspapers often were used to whip up mob violence against Blacks and on occasion even announced lynchings in advance.  One more point – as to these cowards who anonymously comment and attack Joudeh – please don’t fool yourself into thinking the commenters  are skinheads or teenagers affiliated with Aryan Nations.  They are likely the same “good citizen” types who hang on the fringe of “civic groups” like the Mica Flats Grange.

In speaking of the suit filed by Joudeh, Commissioner Currie said. “You’re talking about three commissioners that don’t have a racist bone in their body….”    Let’s assume that is true.  But would it be o.k. for the commissioners to deny the permit just because granting it would be politically unpopular or against the wishes of their constituents?  If the will of the people is due to fear of Muslims, or due to xenophobia, should elected officials still do the will of the people?   Commissioner Currie boasts on his re-election site that he is a “4th generation native of Coeur d’Alene [Idaho].”  What if the commissioners were biased against Haitham Joudeh simply because he was a newcomer.  Would that be o.k.?

One commenter to an earlier article said:  “If the commissioners kowtow to this pathetic moron [meaning Joudeh] they cannot expect any respect from any decent citizen around here.”  Haitham Joudeh’s hearing in front of the commissioners was heard in an election year.  At a very minimum the hearing that Haitham Joudeh received on his project was tainted by the conflict of interest that the commissioners had in their association with opposition groups.  The minimum that they should do is grant Mr. Joudeh a re-hearing for his case in front of an impartial body.  The commissioners should appoint a neutral fact-finder.

Haitham is an American, he is a University  of Idaho grad, he is a married man and has a baby boy.  In some online comments Haitham Joudeh has spoke up in his own defense and used his own name.  Look again please at the picture here of Haitham Joudeh standing alone in front of his trashed truck.  He is by himself.  Why are not more people standing up for him?

In Washington, the City of Colville debated whether to remove the police chief position out from under the civil service commission.   Under Washington law, a police chief that is  civil service is no longer an “at will” employee, and can only be removed from his or her position “for cause” and only after a written accusation.   The police chief is then entitled to a hearing in front of the civil service commission to determine if he or she should be removed.   Without this protection, a police chief is at the mercy of the mayor and city council.  One obvious reason why a police chief would want to be protected by civil service rules is that he does not want to be retaliated against for arresting someone who is friends with the mayor or city council.  According to the Statesman-Examiner (see article),  local resident William Emily spoke up at the city council meeting and shared his experience.  He explained that he once worked as the town marshal for Northport, Washington, and explained that during that time he was approached by individual council members and told that there were certain citizens that were not to be bothered and that there were certain laws that were not to be enforced.   I guess the implication is that if a cop’s employment is at the mercy of elected officials, then politics will creep in and taint the principle of equal application of the law.    I think that this is a fair point.  When I worked as a prosecutor, I sometimes worried about police favoritism.  Probably everyone does in smaller towns.

In Colville, the city council voted to keep the position under civil service.   The Statesman Examiner reports council members Eric Ohrtman, Doug Kyle, and Ed Gray voted to remove the position from civil service, but that they were out-voted by Lou Janke, Betty White, Marilyn Haney and Nancy Foll.

Although William Emily made a good point, there are also a lot of city officials who want to make it easier to get rid of police chiefs they have problems with.  In Ferry County,  City of Republic Mayor Elbert Koontz attempted to fire his police chief, and the decision was overturned by the civil service commission.  See story.  In that case, the civil service commission ruled that the Mayor should have taken steps of progressive discipline rather than an abrupt firing.  Any lawyer who represents municipalities will tell the local government to try to build a record of having tried to correct the employee deficiency with written reprimands or short suspensions.   However, it is only human nature to try to avoid these steps and to simply hope that an informal “talking to” will suffice.  Often government employers feel awkward about disciplining an employee then continuing to work with him or her the next day.  These personnel issues in small town governments are always hard.

Another part of the civil service rules is that the commission makes recommendations for hiring.  The rules can be complex.  Earlier this year, Ferry County Sheriff Pete Warner was sued along with Ferry County for allegedly violating the hiring rules in a suit filed in Federal Court.  See story. The jury found the county liable for about $350,000.00.  The suit alleged that Pete Warner engaged in discrimination too.

In these decks of cards, all 52 are face cards.  Each one bears the face of a victim of an unsolved homicide.  The cards are distributed in prisons with the hopes that an inmate will provide a badly needed tip.

While it is the high-tech C.S.I. investigation techniques that are featured on TV shows, it is often the low-tech solutions that solve real-life crimes. The idea of these cards apparently comes from the company Effective Playing Cards and Publications. This Florida company has produced cards in 10 states for distribution to inmates.   The company has created thirty different decks and targets the decks to each geographical area.  I received a set in the mail last week that were designed for the San Bernardino area of California.    The cards are created with the support and encouragement of the surviving family members who are glad that the cases are being kept alive and attention is being drawn to the deceased.  No cards exist for Washington State at this time.

In a prison culture where inmates have an abundance of time on their hands, the cards compels attention to the items in ways that a poster could not.  The maker of the cards credit the cards with having solved four different cases across the nation.  One homicide detective explained that distributing the decks is “like interviewing all 2500 inmates about 52 different homicides all at the same time.”

Despite the fact that this idea seems to be of little costs to investigative agencies, it has been a little slow to catch on, and little seems to be known of these cards.  The below youtube video on the subject has been up for over six months, but has received only 68 views. 

In addition to the expense of the cards, there is certainly an expense to sorting out the tips when received from inmates. Inmates are, as a whole, not a very reliable group when it comes to tips. Many could be looking to strike a deal to earn an early release, or could be looking for a way to transform themselves from a societal pariah to a local hero for coming forward. Detectives will look to see if the informant has pertinent information on the case that could not simply be gleaned from reading the newspapers.

I have learned, in the homicide cases that I have worked on,that in just about every high-profile case you will find attention seekers of all sorts claiming to have important information. Trying to determine the validity of such claims is not as easy as a person might suspect.

The playing cards in question focus on cold cases. Because crimes such as murder do not have a statute of limitations, police maintain an interest in such cases for decades. When I worked as a prosecutor, I often contemplated the value of police work on cold cases. Detectives in Ferry County made important progress in certain cases, see e.g. here. But there also needs to be accountability up the chain of command for time spent on cold cases. In general terms, not necessarily pertaining to my past position, I have feared that police work on cold cases sometimes consisted of having the case file spread out over several desks while a discouraged detective played solitaire. And such work is discouraging. You only need to review past Spokesman-Review articles with respect to the Spokane Serial Killer Task Force to learn how depressing that line of work can be. Big breaks in such cases are rare, and are usually preceded by years or decades of hard work done out of the spotlight. It is not the stuff of C.S.I. or newspaper headlines, but playing cards could, apparently, be a helpful tool in resolving such cases.

In The Star – Online there was an article about how the State Auditor’s office issued a “finding” that the town of Elmer City improperly “gifted” real estate to its town clerk Renee Tillman.  The small parcel of land was adjacent to property already owned by Tillman.  Okanogan County assesses the land at $5,500.00, but the town of Elmer City sold it to Renee Tillman for only two hundred dollars.  The city did not have it appraised first and did not put it out for public bid. A copy of the report by the State Auditor is online here.  The State Auditor’s only comment is “we recommend the town refrain from making gifts of public funds.”  

Under the Washington State Constitution Article VIII, 7, it is provided that: No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.

In deciding whether a public expenditure is a gift under the constitution, the state supreme court focuses on two factors: “consideration” and “donative intent.”  See the 1997 case of King County v. Taxpayers of King County.

The issue of “consideration” is whether the government received adequate compensation for the property.  The town of Elmer City sought to justify its actions by explaining: “The Town of Elmer City would no longer have to maintain the property; the property was of no present or foreseeable benefit to the town. The property then would be placed on the tax rolls.”   Under this rationale, it would make sense for cities to get rid of a lot of property wouldn’t it?  The point is that Elmer City owed it to the taxpayer to get as much as they could for that parcel of land.  It is hard to imagine that all they could get for the land would be $200.

The issue of “donative intent” references whether the intent of the government was to make a gift or do a favor, or if the city simply showed bad judgment.  Unfortunately it simply looks bad when a city makes a deal with its own employee and does not allow the public to even make a bid.

I think a lot of attorneys who practice municipal law would recommend that the parcel of land be returned to the city, and then be resold at public auction.  If no one bids more than $200 than the clerk who purchased the land is in no worse position than she would be already.  However, if the land is really worth more, than the taxpayer really does deserve full compensation.  In times of dire budgetary conditions, the public does not like to read about such deals.  And the public wants to make sure such deals do not occur in the future.

The State Auditor’s report does not mention the acreage of this parcel that Elmer City sold to Renee Tillman for $200.  A person can look up more info on this parcel online here.  This link is to the public records that are online courtesy of Okanogan County’s online land records.  The land in question had the Parcel ID number of 0700020701.  From the link to the county records, a person can see a map of the parcel in question.  Can this be right?  This map in question shows a pretty sizable parcel of land right in town.  Did Elmer City really sell this for just $200?

What is the greater funding priority, schools or prisons?  One person answered: “If push comes to shove, kids can be home-schooled, but I’m pretty certain that dangerous prisoners can’t be home-prisoned.”  That comment is from the Spokesman-Review print edition from November 23rd, 2009.

In Washington State prison sentences have been gradually increasing over the years.  Every year the legislature wants to appear tough on crime, and accordingly mandatory sentences are increased.  Let’s look at four examples of how this has occurred:

Vehicular Homicide: This is the offense that is committed when a person drives while intoxicated and crashes and kills someone.  In 1987, the standard range set for this offense was 15-20 months in prison.    In 1993, the penalty was increased to a standard range of  21-27 months in prison.   Today the offense brings a punishment of 31-41 months.

Manslaughter First Degree: This is the offense that is committed when a person recklessly kills another human being.   In 1987, the offense brought a standard range of 31-41 months.  Today the punishment is 78 to 102 months in prison.

Assault First Degree: This offense is committed by assaulting another person and intentionally inflicting great bodily harm.   In 1987, this offense brought a standard range penalty of 62-82 months in prison.  Today the punishment is 93 to 123 months.

Child Molestation in the First Degree: This crime pretty much speaks for itself, and “first degree” means the victim was under 12.   In 1988, the mandatory standard range was 21-27 in prison.  Today the range is 51-68 months in prison.

My point is not that any one sentence is better than the other.  Rather my point is that many people look back with nostalgia on when courts were tougher on crime.  In fact, prison sentences are stiffer than they have ever been.   It isn’t very palatable for legislators to reduce sentences, but they may be considering allowing greater good-time incentives for non-violent prisoners.

I guess I agree with the person commenting in the Spokesman-Review that prisoners cannot “home-prison” themselves.  However, for certain offenders shouldn’t home-arrest and home monitoring be considered?  Particularly if the cost of incarceration is forcing us to close schools?

The U.S. loves prisons, but should perhaps consider some alternatives.   The U.S. has just 5% of the worlds population, but has 25% of the worlds prisoners.  See the article “Inmate Count in U.S. Dwarfs Other Nations” in the New York Times.   We have 751 people in prison or jail for every 100,000 in population.  Second place goes to Russia, with 627 prisoners for every 100,000 people.  England’s rate is 151; Germany’s is 88; and Japan’s is 63.

How much worse is the problem of Oxycontin and pharmacy robberies going to get?  There was an opinion piece in the Seattle Times earlier this month by Elizabeth M. Economou on the subject of pharmacy robberies.   The opinion piece was personal in that Elizabeth Economou’s husband is a pharmacist and was the victim of a robbery.   But she also called on the state legislature to increase the penalties for such pharmacy robberies.   The position is different from the arguments that I have made (here and here) insofar as I believe that the robberies are the result of the inherent addictive properties of Oxycontin, and that more needs to be done in regulating the manufacturing and marketing of such drugs.   But while I have seen the ravishes of addiction daily in my practice as a criminal defense attorney, pharmacists such as Economou’s husband see it from a different perspective, i.e. looking down the barrel of a gun.

Elizabeth Economou explains:  “instead of combat boots and olive-hued fatigues, my husband sports a crisp white lab coat while valiantly assuming his place on the front lines of the insidious war for prescription drugs.”   She writes that he returned from work early and her husband explained “I got held up — he wanted Oxycontin.”

It may seem like Ms. Economou is being melodramatic with her war analogy, but she is not.   Such stories are in the newspaper everyday.  The situation has gotten near the boiling point, and I am worried that any day gunfire will erupt in one of these incidents.  On November 19th, the Spokesman-Review reported in a story that a pharmacy employee tackled a man with a gun who tried to rob the store of its Oxycontin.  The employee was still trying to wrestle the gun away from the suspect when the police arrived.  The story did not make the front page of the Spokesman because such stories are growing commonplace.

After I read Elizabeth Economou’s suggestion that the legislature should increase the penalties for such robberies, I emailed an attorney I knew who works with the state legislature.   No such penalty increases were being considered.   There was no room in the budget.  And it is not because Economou’s was the only one to suggest the idea.  The elected prosecuting attorney for King County, Dan Satterberg made the same request.   The state is simply broke and can’t afford the cost of the increase prison sentences.

While it is debatable whether increased prison sentences would deter desperate addicts, one thing is sure.  The debate in the legislature would have provided an excellent opportunity to force our leaders to consider the growing problem.  Too many of our leaders are ignoring the issue of Oxycontin and pharmacy robberies.

I had the pleasure of seeing Mary Beth Tinker speak at Gonzaga School of Law last night on the subject of the free speech rights of students.  In 1965, eighth grader Mary Beth Tinker was suspended from school for protesting the Vietnam War, and took her case all the way to the U.S. Supreme Court.  Although she was just thirteen, she donned a black armband with a peace sign, and politely refused to remove it when asked.

She wore the armband to support a Christmas Truce, as urged by Robert Kennedy, and did not return to school until January 1st, when the protest was scheduled to end.  Although she lost her case at the lower courts, Mary Beth Tinker ultimately prevailed at the U. S. Supreme Court in the landmark case of Tinker v. Des Moines School District.

Mary Beth Tinker spoke at Gonzaga School of Law about her background growing up and how her parents were civil rights activists.  Her parents assisted with voter registration efforts for African-Americans in the South.  Although her parents were also active in the anti-war movement, she explained that the decision to protest was her own.  The ACLU took up her case, and the final ruling did not come out until 1969.

The most recent case addressing the freedom of speech for students is Morse v. Frederick, in which the U.S. Supreme Court ruled that a school district properly seized a banner from a student which read “Bong Hits 4 Jesus”.   The Supreme Court indicated that the First Amendment rights of a student did not protect speech that promoted drug use.  Many lawyers disagreed with the courts ruling because the student in question held the banner on a public sidewalk outside of the school.

One thing that I kept in mind when I heard about Mary Beth Tinker’s case,  is that student protests 40 years ago had the potential for being more volatile.  I think that the student anti-war protests that occur today do not concern the school administration because young people do not seem to be as involved.  (I should have asked Ms. Tinker if she agreed with this but I did not think of this at the time).  While at this time student political protests seem dormant in this country, in other countries student activists are a force to be reckoned with.   Remember what student free speech did to Iran last summer?  Do you remember seeing the images posted on Twitter and Flickr?  These are good reminders on why the protection of  free speech is so important, even for the high school set.  Similar student movements changed the Ukraine in 2004 (Orange Revolution) and Georgia in 2003 (Rose Revolution).

Although today it seems pretty basic that a student can wear an armband in the U.S., it was not so clear in 1966.   Look at the transcript of Justice White grilling the ACLU lawyer at the Supreme Court during oral argument in 1968:

JUSTICE WHITE: Then why didn’t they take it [the armband] off when they went to class?

MR. JOHNSTON: Well, there would be no reason to take it off when they went to class.

JUSTICE WHITE: Because it was ineffective, nobody would notice it.

MR. JOHNSTON: It was not disruptive in the class your honor.

JUSTICE WHITE: You mean physically, but how about the attention of the students?

MR. JOHNSTON: Well, there is no testimony by any of the teachers that it was in any way distracting or disruptive.

JUSTICE WHITE: Why did they wear, again, why did they wear the armband?

MR. JOHNSTON: They wore the armband to convey a message.

JUSTICE WHITE: To convey the message.

MR. JOHNSTON: That’s right.

JUSTICE WHITE: They anticipated students would see it and understand it and think about it.

MR. JOHNSTON: That’s correct.

JUSTICE WHITE: And when they did it in class, they intended the students to do it in class.

MR. JOHNSTON: Well, I think it’s a fair assumption that the method of . . .

JUSTICE WHITE: They intended the students to think about it outside of class but not in class.

MR. JOHNSTON: I think they intended; I think they chose a message, chose a method of expression your honor, which would not be disrupting, distracting, disrupting.

JUSTICE WHITE: Physically it wouldn’t make a noise. It wouldn’t cause a commotion, but don’t you think that it would cause some people to direct their attention to the armband and the Vietnam war and think about that rather than what they were thinking about, supposed to be thinking about in the classroom?

Justice White’s questions seem a little bit crazy today, but maybe at the time discipline may have been pretty strict.  I sometimes speak at schools (see here) and it does seem like students today definitely multi-task a little during class.   So while Justice White grilled the ACLU lawyer, Justice Thurgood Marshall had tough questions for the school’s lawyer.  In particular Thurgood Marshall was curious as to how seven children with armbands could threaten the order of a school district with 18,000 students.

JUSTICE MARSHALL: Seven out of eighteen thousand and the school board was afraid that seven students wearing armbands would disrupt eighteen thousand?

MR. HERRICK: I think . . .

JUSTICE MARSHALL: Am I correct?

MR. HERRICK: . . . the court plays, that that doesn’t give us the entire background that builds up to what was existing in the Des Moines schools at the time the armbands were worn. Uh, the, as we view it, the right of freedom of speech or the right of demonstration in the schoolroom and on the school premises must be weighed against the right of the school administration to make a decision which the administration, in good faith, believed and its discretion was reasonable to preserve order and to avoid disturbance and disruption in the schoolroom.

JUSTICE MARSHALL: Been any disruption?

MR. HERRICK: I’ll refer to that also, your honor. There had been with John Tinker, what I would call disruption. One or two of the boys who had been struck, I believe the record shows.

JUSTICE MARSHALL: Well, how many boys are struck in the Des Moines school system per day normally?

MR. HERRICK: Well, if the court please, I think the question there gets back to the first issue that I undertook in the states. Does the school if we have an aroused community have to wait until disruption occurs or may it act to prevent it?

JUSTICE MARSHALL: Well, the school system was aroused? Where is that in the record?

The transcript of this case, and the audio of the oral argument, are available through oyez.org.  Ultimately Justice White was convinced to rule that the armband was constitutionally protected speech and joined with the majority opinion.  Anytime you listen to the old oral arguments of court cases on constitutional law, you are reminded at how quickly attitudes about constitutional rights can change.

For questions about laws for teens, Mary Beth Tinker recommended the site //askthejudge.info/.  The content is by a retired judge and there is a lot of discussion on freedom of speech in school.

Anyway, my visit back to Gonzaga University School of Law was enjoyable.  It seems like there are more cool things going on at GU Law then when I went there.  After Tinker’s presentation, several law students were setting up a display for a project protesting human trafficking, see here.  The display was an “interactive passport installation” and was staffed by students and Gonzaga alumna Katie Stone Botezatu.  But that is the subject of a future blog post maybe.

This Tinker lecture was actually something I just happened to stumble onto when I used the law library after court Thursday.  Does anyone know of any good way to follow events down there at Gonzaga?  I track a lot of GU activities on facebook, but I am apparently still missing a lot.

Italy has a modern criminal justice system with a long history.  The general area of Italy in which Amanda Knox is being tried is near the birth place of Renaissance Humanism, the movement that gave new force to notions of rationality and the importance of maintaining human dignity.  And in the classical period of Ancient Rome, Cicero argued before juries in a manner emulated by the legal advocates of today.  For Americans, a trial in Italy does not cause the same fears that would be caused by a trial in Iran or Syria, for example.  Nevertheless, Americans should have grave concerns for Amanda Knox and the fairness of her trial in Perugia.  My uneasiness with the trial is not that it is being conducted in an aberrant or unusual foreign manner.  Rather my concern is that the case is too much like American trials that have been chaotic or have yielded unfair results.

Back in 1892, when Italy was still finishing its unification, the United States was suffering through its first media circus surrounding the murder trial of Lizzie Borden.   The landmark press coverage of that murder trial was so fraught with prejudgment of the facts, that people still today assume Borden’s guilt.  Borden was found not guilty.  Whether it is trial of Ethel and Julius Rosenberg, or of O.J. Simpson, the public is aware that the criminal justice system can be twisted or contorted under the weight of media attention.

Paul Ciolino, an investigator with the Innocent Project explains the trial of Amanda Knox: “This is their O.J. Simpson trial — it’s that big.”  In fact, it may be worse.  There has been information leaked out to the tabloids in this case in ways that I have never seen or heard of.   Amanda Knox kept a diary that was improperly copied and circulated to the tabloids.  The subject of the sensational tabloid press coverage has been covered in articles by the UW Daily.  Washington Senator Maria Cantwell wrote to the Italian ambassador in the U.S. expressing concern over Amanda Knox’s trial.  Cantwell expressed concern that “confidential information about her case was leaked, resulting in false and misleading media reports.”  King County Superior Court Judge Mike Heavey took the unusual step of writing to the Italian authorities on the subject of Amanda’s trial.  Judge Heavey complained to the council that regulates judges in Italy and asked for a change of venue.  He also complained about the leaks from the prosecutor, police and prison officials to the tabloid press.

A lot of the unspoken concern comes from the particular Italian prosecutor in this case, Giuliano Mignini.   Many Americans have been slow to criticize him.  In an August interview with the Seattle-Times, Amanda’s parents indicated that they did not wish to criticize the investigation for fear of angering the Italian prosecutors.

Earlier this year, Giuliano Mignini announced that he was bringing a defamation lawsuit against a West Seattle community newspaper repeating critical comments made by Knox’s supporters.   The article, by the West Seattle Herald used to be available here, but has apparently been taken down.  Giuliano Mignini told the BBC he started the legal action because the newspaper quoted some of Knox’s supporters that said Mignini is “mentally unstable.”  The same article quoted Knox’s supporters as accusing Mignini of using Amanda’s trial to “improve his own dicey reputation and further his career.”

Italian prosecutor Giuliano Mignini reminds me too much of North Carolina prosecutor Mike Nifong, who was disbarred over his misconduct during his prosecution of members of the Duke lacrosse team.  In that case the bar association said that Nifong manipulated the investigation to increase his chances of winning election.   According to the bar investigation, he committed “a clear case of intentional prosecutorial misconduct” that involved “dishonesty, fraud, deceit and misrepresentation.”

With Italian prosecutor Giuliano Mignini, people have questioned his judgment and good sense long before Amanda Knox was charged with murder.  American author Douglas Preston went to Italy to write a book about a serial killer in Florence several years ago, and found out firsthand how Mignini operated.  Preston wrote about his firsthand account in his book entitled Monster of Florence.   Douglas Preston became the target of a police investigation himself, along with his Italian journalist friend Mario Spezi.  Writing about Mignini, Preston describes how the prosecutor would selectively leak information to the media, while seeking to bar reporters from publishing different accounts of the facts.  Preston describes how he and his colleague, Mario Spezi, pursued a version of events that differed from official accounts, and that Giuliano Mignini had Spezi jailed for 23 days for obstruction of justice.   The Italian court of appeals (or Tribunal of Reexamination) later stopped this and ordered Spezi’s release.  Douglas Preston describes how more than one person was convicted of murder in the underlying case, and later had their convictions overturned.  Preston describes how under prosecutor Mignini’s leadership the investigation “…would become a monster in its own right, consuming all in its path, engorged and distended with the many innocent lives it had ruined.”  This is what is happening in the Amanda Knox case according to a recent Newsweek article.   The magazine concluded: “Regardless of the verdict, the trial of Amanda Knox has ruined the lives of almost everybody involved in it.”

Italian prosecutor Giuliano Mignini is really a criminal defendant by his own right.   Mignini has been charged with obstruction of justice and illegal wiretapping in prosecuting the “Monster of Florence” case.  At Mignini’s first pretrial hearing on January 16th, 2008, the Italian public minister of Florence, Luca Turco, declared that Mignini was “on a crusade in thrall to sort of delirium” and “ready to go to any extreme defending himself against anyone who criticized his investigation.”

There is not a lot the American legal community can do except wait for Italy’s complex legal system to sort this out.  A verdict is not too many weeks off, and the world is bracing itself for a decision that will be an international bombshell either way.   American lawyers grimace at the chaos in Perugia, and can’t help but see a reflection of  our own system in the mess.

(For earlier blog posts on the trial of Amanda Knox and Rafael Solicito, see here, and here.)

Let’s face it, when people generally look for an attorney, they are looking for an attorney to really shine when it comes to the trial or maybe at a motions hearing.  You don’t really hear people say that you should hire so-and-so because they are “really good at arraignments.”   Yet, I have found arraignments to be very important to clients for the following reasons: 1) Defendants sometimes appear for an arraignment before hiring or speaking with a criminal defense attorney,  2) The arraignment is often the client’s very first appearance in court, and 3) The arraignment can often be intimidating because it is often on a crowded docket day, when many people are watching.

Arraignment on DUI Charge: Although you might suspect the arraignment of a major felony to be the most complicated, arraignments on DUI charges are often the most complex.   While some arraignments can be waived by counsel, a DUI charge typically requires that the defendant appear in person to have conditions of release set.   Like any charge, an arraignment on a DUI charge involves a formal plea of “guilty” or “not guilty”.   Because a plea of “guilty” requires a lengthy plea form, such a plea would likely be set off to a future date.  The court at DUI arraignments will set certain conditions of release if they have not been already set.  The court will typically prohibit a defendant from consuming alcohol or drugs without a prescription.  Additionally a court will often forbid a DUI defendant from being present in any location where alcohol is served for consumption on the premises.   This largely restricts a person’s ability to go out to eat, because a lot of restaurants in the small towns in Stevens, Ferry or Okanogan County have class H liquor licenses.

Arraignment of Drug Cases: On misdemeanor drug cases, an arraignment can often be waived if a person has hired a defense lawyer and the lawyer files a notice of appearance.  In the courts of Ferry County, Stevens County, and Pend Orielle County, you see the growing practice of courts requiring pre-trial UA tests.  I believe that public funding has become available so that if a person is indigent, the county will pay for the testing.  The idea of pre-trial UA tests is obviously preferable to being held in jail prior to trial, but it is usually not a popular requirement.   The UA’s typically can detect marijuana use within a few weeks and alcohol use for about three days.   Typically, when a person signs up for the UA tests, they are assigned a specific color code.  The person is then ordered to call in by a specific time to see if their color has been chosen for that day.  If it has, the individual must appear for the test by a certain time later that same day.  This responsibility can be problematic because if a person lives in a remote location of  Okanogan County or Stevens County, for example, they may live an hour or more from the testing facility.  They would unexpectedly need a ride to court.  In certain cases, a person may test positive for marijuana due to use of the drug prior to arrest.  Additionally, a person may test positive for opiates due to use of prescription drugs of hydrocodone or oxycontin for example.  A copy of a valid current prescription must be kept at hand.

Arraignment on Violent Offenses:

Arraignment on a violent offense is procedurally much like arraignments on DUI or drug offenses.  For all felony charges, the court will ask the defendant to sign an advice of rights form acknowledging that they understand their constitutional rights.  During the arraignment it is important that no statements are made that could be self-incriminating.  It is the natural human reaction to explain one’s actions.  However, the arraignment is not the occasion for the court to determine the accuracy of the charges.   This idea can often be confusing for a defendant, because the prosecuting attorney will likely summarize or paraphrase the police reports in an attempt to secure a high bail.  And the defense attorney will often attempt to argue the weaknesses of the State’s case based on the limited information available.  However, this dialogue is much different than a defendant attempting to make a first person explanation so as to counter the allegation at hand.  Such statements by the defendant could be used in court at a subsequent jury trial, and often times the judge will interrupt the defendant if he or she attempts to explain the incident that forms the basis of the charge.  Unlike arraignments for DUI or many drug offenses, the court will often impose bail as a condition of release on such violent offenses as assault, robbery, or sex offenses.  Under the Washington State Constitution, the judge cannot hold a defendant without bail on any offense other than capitol offenses.

So if you are interested in exactly how a Superior Court arraignment will go, it usually goes pretty much like this:

Step 1:  The judge calls the case title “State v. Smith”, for example, and then recites the court case number, before inviting the defense attorney and his or client to approach counsel table.

Step 2: The judge will ask the defense attorney if he or she has gone over the advice of rights form with his or her client, and if the defense lawyer believes that the defendant understands the rights.  The prosecution often signs the form before the defense lawyer approaches the bench with the form.

Step 3:  The judge will ask the defense lawyer if the defendant “waives reading” of the “information” which is the court term for the criminal complaint or charging document.   The accused person has a right to have the charges read to them verbatim under the Constitution.

Step 4:  Once the defendant waives reading, the judge will ask the defendant to stand and will ask for example: “To the charge in count one, possession of marijuana, how do you plead? Guilty or not-guilty?”  The defendant responds.  The judge then asks: “To the charge in count two, possession of cocaine, how do you plead?”  Etc.  Sometimes, the only speaking a defendant will do at an arraignment is to say “yes” that he understands his rights, and to say “not guilty” once the charge is read.

Step 5:  The judge will then hear argument as to the conditions of release to be set.  The judge will hear from both lawyers, and then ask the defendant if he or she agrees to abide by those rules.

Step 6:  The judge will often sign a scheduling order providing for the court dates to come.  The judge will set a date for an “omnibus hearing”, a “status hearing” or a “pre-trial hearing” and a jury trial.  An omnibus hearing is the date for the prosecutor and the criminal defense attorney to declare what evidence they intend to use, what witnesses they intend to call, and what defense will be offered.  Sometimes a defendant will not need to appear for an omnibus hearing.  This is a good point to clarify at the arraignment.  A status hearing or a pretrial hearing is a date to confirm the readiness of the parties for trial, and this hearing can go by many different names.   Often times, a client will ask me what the purpose of a particular hearing is, and the short answer is often “that this is a court date to talk about future court dates.”  That might sound a little silly, but that is our court system for better or for worse.  The last thing I will say about the scheduling order is that a defendant should bring his or her calendar.  If they are unavailable for court due to a surgery or a final exam for example, they should make that known at arraignment, because rescheduling it later can be difficult for the defense lawyer to do.

There are not any video arraignments of Washington Courts that I could find, but below is an arraignment on a murder case off of youtube.

Monday I had the pleasure of meeting Daryl Rodrigues, the new lead public defender for the Colville Confederated Tribes.  I also found out that he has a blog entitled Bicker, Back & Forth, PS. His posts from September 22nd and 29th recount his adventures in moving to Coulee Dam.  When I read his bio on his blog, I saw that he is a ’94 grad of Gonzaga Law, and I am a ’95 grad.  I think I remember him.   Daryl is originally from England, and since graduating he has done a lot of work in private practice and he taught at Whitworth a little bit.   I look forward to checking up on his blog to read about his experiences in Tribal Court.

I was sworn in to the bar in the Colville Tribal Courts in 1999 but did not really practice there much until 2002.    I have never practiced there full-time, but I enjoy doing criminal defense work down there, and I do some employment law cases down there too.   The criminal courts in Nespelem only have jurisdiction to prosecute Tribal members or first-line descendants for crimes.  Non-tribal members can still be sued in Tribal Court and can be ticketed for such infractions as speeding or fish and game violations.   I would imagine that one of the projects that Daryl will be faced with in the years to come is working with the Tribe’s nascent juvenile justice code.  Native youths in recent years have had their cases handled in State court, but the Colville Tribal Code envisions that the cases would be handled in tribal court someday.   This would seem to be an improvement.  The Tribal Court would seem to know more about these kids and what problems they face.  Currently, many Native youths are prosecuted in Republic or Okanogan and drive over an hour to  attend a court that is largely unfamiliar with their families and communities.  The courts of Ferry County and Okanogan County also seem to face challenges in monitoring these kids while they are on probation.