I received a message today from a friend on Facebook letting me know about a rally in Spokane to encourage the city council to enact stronger laws to ensure police accountability.  The Facebook page reads:

On May 17th the Spokane City Council will be voting on an ordinance to mandate that the Police Ombudsman conduct independent investigations and issue public reports about Spokane Police conduct. Right now, investigations are conducted by the Internal Affairs dept of the police.
Come urge City Council members to vote YES on this important step forward! Come join members of the Peace and Justice Action League of Spokane, MEChA of EWU, SHAWL Society, Progressive Democrats, NAACP, NAMI, CORD, VOICES, Need to Know, Center for Justice, Eastern Washington Voters, and Odyssey Youth Center to support this ordinance.
Rally at 5p; City Council meeting at 6p.
More info: contact PJALS at 838-7870 or pjals@pjals.net

After the death of Otto Zehm in Spokane  in 2006, I often think about the subject of police accountability.

Carl Maxey complained about a lack of police accountability in Spokane back in 1975. On May 17th the Spokane City Council will vote on a law to try to change the system.

(I have blogged about the subject here, here and here.)  The announcement I received today made me think of a book called Carl Maxey, a Fighting Life by Jim Kershner, a reporter for the Spokesman-Review.     As we know Maxey, a black lawyer from Spokane, was a champion of the civil rights movement and the anti-war movement before his death in 1997.  But he also was a strident advocate for police accountability in Spokane.   Maxey was perpetually frustrated by the subject.   After a coroner’s inquest justified the police shooting of a black teenager in the back, Maxey complained: “It’s apparent from this travesty that there must be a viable method or getting a full and complete investigation when a death is caused by a policeman.  At present, a citizen has no protection against the police.”  Thirty-five years later, Spokane still does not have sufficient independent over site of police misconduct.  The new proposed law before the city council would give the independent ombudsman greater authority by conducting independent investigations of police officer actions.

When I worked as a prosecutor I was often troubled by the lack of legitimate recourse citizens had when they felt aggrieved by police actions.  It seems like the only recourse is to go to a lawyer and sue.  And in that case it is usually the tax payer that loses out rather than the individual officer.  Last year I represented a Native-American man who was accused of assaulting a police officer in Spokane.  An independent witness came forward on the day of trial and testified that she looked out her window and saw what really happened.  She testified that my client did not assault the police officer, and in fact described instead what would be considered excessive force by the police.   Not surprisingly my client was acquitted.  However, he still has the scars from the use of the taser, and he missed a considerable amount of work due to the incident.  Like Maxey, my client is still waiting for a system to be created that provides for independent investigations into the use of force.

Let’s see what the Spokane City Council does later this month.  Check out the website of PJALS for more info on this subject.

If you are in Spokane Thursday night, you may want to swing by Auntie’s Book Store at 7 p.m. to hear Candace Dempsey read from her new book Murder in Italy.  The book is about the case of Amanda Knox and Raffaele Sollecito who were convicted in December of the murder of Meredith Kercher.  Amanda Knox was an American student from the University of Washington at the time, and Meredith Kercher was visiting from England.  The story made international headlines, and the conviction was controversial particularly among U.S. legal experts.

Candace Dempsey certainly knows her way around Spokane, having formerly worked at the Spokesman-Review.    Lately Dempsey has been blogging about the case for the Seattle PI.  I have not read the book yet, but I have it ordered from Amazon.  I won’t be able to make it on Thursday, but someone let me know how it goes.

Speaking of good books.  I just finished reading the book The Lovely Bones, by Alice Sebold.  (O.k. I admit it, I didn’t actually “read” the book, I listened to it on Itunes).  I also rented the movie too, again on Itunes.  Both were good, and you may want to check them out.

I will let you know about Murder in Italy after I read it.  Right now, I am waiting with all the other Amanda supporters to wait for the Italian appeals court to review her case.  I am still optimistic.

In today’s Doonesbury cartoon in the Spokesman-Review, Alex Doonesbury starts an argument with some guys wearing guns in a coffee shop.  They respond by implying that her boyfriend Leo is not manly enough to pack a gun.  Leo is an Iraq War vet and he puts them in their place.

I blogged last summer about the open carry movement in rural Washington, and I have been tracking it for about 3 years.  When I wrote that blog post last summer, I really thought more would come of the movement in rural areas.  However, it really seems to be more of an urban thing.  It seems as if the open-carry advocates are focusing on the Seattle and San Francisco Bay areas.  Check out a good article in the Seattle PI about the subject of Starbucks’ decision not to prohibit open-carry in their stores.  See here.   The odd thing about this issue is that I think a lot of urbanites assume open-carry occurs in rural areas.  I live in a very rural area with no local gun ordinances, and I literally do not recall a single instance of open carry here in the 15 years that I lived here.   I have obviously seen people armed at the gun range, out hunting, or even on their own property in Ferry, Stevens and Okanogan County.  But I have never seen someone just come into the supermarket or coffee shop bearing a side arm in open view.

To view the full Doonesbury cartoon online click here.  (Note that if you visit this cartoon after Sunday, you will have to click “previous” at the top of the cartoon to see Sunday’s strip.)  Also, check out this youtube video.

Watching this video it is hard to tell who is supporting what side. Seattle is a weird place.

I dare say John Knodell had no idea what kind of chaos would ensue when he decided to step down from his position as Grant County Prosecuting Attorney.  He had served almost 20 years, and resigned when he was elected judge in November of 2008.

A power struggle in Grant County has followed after John Knodell stepped down from that position in '08 after serving for almost 20 years.

Knodell left what  I think political scientists call a “power vacuum”, and we all know that nature abhors a vacuum.   After the Commissioners appointed Angus Lee as prosecuting attorney, he won the election with a slender majority, and hard feelings have followed.  (See prior blog posts on the election battle here, here, and here.)  Angus Lee’s election year opponent Albert Lin just filed a 2.5 million dollar claim against Grant County alleging he was pressured to commit unethical acts by Lee last year.  See article.   Lin complains that he was unlawfully fired.  Hmmmmm.  Sounds a lot like the case in Pierce County in 2008.  Deputy Prosecutor Barbara Corey was fired, and later came back to win a 3 million dollar lawsuit against Pierce County for unlawful termination, defamation of character, etc.  See article.

The people who really end up losing are the public citizens.  This is true in two ways.  First the public ends up paying the big jury awards (the prosecutors don’t pay out of their own pockets of course).  Secondly, the public also pays in lost productivity when a prosecutors office is split in two between supporters of both sides.

Another prosecutor’s race to watch is Kittitas County.  Former deputy prosecutor Mark McClain came out swinging when he announced that he was going to run against his former boss Greg Zempel.  His announcement read: An antiquated office structure, policies which hamper the dedicated and capable staff, a focus on misdemeanor offenses rather than felony crimes with prison sentences, and an elected prosecutor absent from the courtroom, are at the heart of the issue and must be changed in order to protect and maintain the safe community which we enjoy. Ouch!  Whatever happened to at least starting off a campaign on a positive note?

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

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

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

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

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

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

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

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

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

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

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

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

Women are traditionally allowed to wear hats in court

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

By Steve Graham

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

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

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

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

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

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

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

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

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

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

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

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

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