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

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

Thursday, March 18, 2010

8:00 a.m.                   Registration and Coffee

8:30 a.m.                   Introduction and Conference Overview

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

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

Moderator

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

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

Lorraine Parlange, Kalispel Tribal Attorney, Airway Heights, WA

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

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

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

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

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

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

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

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

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

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

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

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

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

Greg Guedel, Foster Pepper, PLLC

Julie Kebler, Foster Pepper, PLLC

Scott Wheat, Crowell Law Offices, Spokane, WA

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

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

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

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

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

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

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

4:30 p.m.                   Adjourn

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Toyota vehicles have had a reputation in recent years as being pretty well made.  That has been in jeopardy recently when Toyota has announced the recall of several of their vehicles.  According to the Spokesman-Review this morning, the National Highway Traffic Safety Administration is looking into allegations of momentary loss of braking capability in the Toyota Prius while traveling over uneven road surfaces, potholes or bumps.  Hey, those roads kind of sound like the roads of Ferry County don’t they?  Or even worse the pothole ridden roads of the city of Spokane.  Additionally, there has been a problem with the Toyota’s suddenly accelerating for no reason.  Much of the investigation has come from reporters from the LA Times and trial lawyers who have been researching the safety records of these cars. According to an LA Times blog:

Reporters Ken Bensinger and Martin Zimmerman first wrote about an upcoming recall by Toyota on Sept. 30 that blamed floor mats for causing a gas pedal to stick. This came in the wake of a horrific crash near San Diego in August that killed an off-duty California Highway Patrol officer and three members of his family after his Lexus sped out of control.

Trial lawyers are already advertising their interests in taking such cases, see here, for example.  I can predict the class action suit settlement already.  The lawyers get $5 million dollars attorney fees, and the three people killed in the San Diego crash get coupons for floor mats.

What is interesting, is it is actually pretty hard to find a definitive list of what cars are actually subject to recall.  The Toyota Press Room explains:

The specific model names and years associated with the newly-expanded population of subject vehicles for the pedal entrapment recall include:

2008-2010 Highlander
2009-2010 Corolla
2009-2010 Venza
2009-2010 Matrix
2009-2010 Pontiac Vibe

I am not sure that is definitive.  You think Toyota would have this information on line and that it would be pretty easy to find.  What will come of the recall?  Will the problems be found to be broader then first announced?  Will the Toyota brand take a permanent hit?

(By Steve Graham, a Criminal Defense Lawyer)

Have you ever been a party to a class action suit?  One time my father was.  An airline screwed him and thousands of other travelers by fixing their prices in violation of anti-trust statutes.   When I was a kid, my father used to fly about once a week at times, so he joined the suit and figured he had some money coming.  Nope.  The attorneys settled the case, reaped huge attorney fees, and all my dad got was  a coupon for about fifty dollars to be used on a future flight.  The coupon had so many restrictions on its use that it was virtually worthless.  My dad wasn’t happy.  This was about 20 years ago, but problems continue with these suits.

In 2001 Block Buster video opted to  settle a class-action lawsuit over late fees, and the attorneys suing Blockbuster agreed that Blockbuster should issue coupons to the plaintiffs for free or dollar-off movie rentals.  The Texas attorneys that settled the suit saw to it that the settlement gave them $9.5 million in attorneys fees.  Critics attacked the settlement as another glaring example of what is wrong with a system whose prime beneficiaries are the lawyers.

I thought of this recently when I read in The Olympian this morning about a California judge who fought back against the system.   An attorney attempted to settle a class action suit against a woman’s clothing store that violated credit card laws.   He proposed a settlement where he would receive $125,000 cash and the women would get $10 coupons.  Judge Brett C. Klein instead ordered that the male attorney would instead get $125,000 worth of non-transferable coupons for women’s clothes.   The attorney wanted to be paid $395 per hour and instead got coupons.  Pretty funny, huh?  The California Bar didn’t think so.  As announced in the news story here, the judge was accused of grandstanding by releasing the story to the newspaper.  The judge didn’t care as he was about to retire and even agreed to the discipline action rather than fight it.  If the judge wanted to draw attention to class action coupon scams, he definitely succeeded.  The story has been picked up by the wire service and is all over the country now.  If you want to read the decision admonishing the judge, it is online here.

My dad would love it.

Here in Washington, there has been criticism of similar class action settlements.  In the case of Picket vs. Holland America cruise line, Justice Sanders of the Washington Supreme Court complained about a proposed settlement.     In his dissent, Justice Sanders explained:

The settlement would offer discount coupons having virtually no practical value to class members. Although Holland claimed the 1.5 million coupons offered had an aggregate face value of $ 20 million, the conditions placed on redeeming these coupons, coupled with the nature of Holland’s price schedule, ensured only a miniscule portion of these coupons would ever be used, and even then only if a class member paid Holland thousands of dollars for future trips. The coupons ranged in value from $ 10 to $ 50 and were subject to a so-called “capacity control” restriction, meaning they could be used only on travels booked less than 45 days from departure. However Holland frequently sells its cruises on an early-purchase, reduced-fare basis. Savings under this early-purchase scheme range as high as 20-25 percent of the ticket price, which sometimes goes as high as $ 5,000. Naturally, reasonable travelers will not forgo such large savings to receive a coupon credit of only $ 10 because early-purchase discounts would more than offset whatever illusory benefit might be achieved from the settlement.

What a racket.  The so called coupons are really pretty worthless.  What do you think?  Time for a little reform?  Did Judge Klein bring attention to this issue agreeing to be disciplined by the California Bar?

I have had the pleasure of working recently with Robert Gaines, a private investigator in Okanogan County.  I believe I met Bob Gaines some years back when he was a detective for the Okanogan County Sheriff’s Office and the Task Force and I was a prosecutor.  He has a lot of detective experience, and recently he has been helping me as a defense investigator in a case in Okanogan.  He has been great to work with.  He is also available for insurance and fraud investigations, service of process and civil papers.  Check out his website Cascade Investigations.  He has been a great asset to me because he understands how Okanogan works.  For those of you unfamiliar with the area, Okanogan County is about the size of my home state of Connecticut.  Okanogan County is 5,315 square miles, and Connecticut is 5,544.  So having a local help me out is an asset.  Bob Gaines will also be taking cases in Chelan County and Douglas County.  Although people may often think of private investigators as being important in divorce cases, etc., actually, having a private investigator in a criminal case is important.  Much like an indigent defendant has a right to an attorney at public expense, defendants in major criminal cases are entitled to investigators at public expense to assist the defense lawyer.

Recently the Washington State Supreme Court overturned the conviction of a juvenile who plead guilty, and then sought to withdraw his plea.  See State v. A.N.J.  Part of the reason the court allowed the defendant to withdraw the plea was because the original defense lawyer took no steps to investigate the case.

In Washington, a person with proper documentation from a physician can legally possess marijuana, right?  It isn’t that simple.   The State Supreme Court essentially said this month that even if you possess the valid certificate from a doctor, the police can still search your house and still arrest you.  The certificate can only be brought up later in court to defend you.  See decision.  In a case out of  Stevens County, Washington, the sheriffs deputies approached the home of Jason and Tina Fry and smelled marijuana from the front porch.   Tina Fry presented proof of medical authorization, but the police obtained a warrant anyway.  As you would expect, marijuana was found in the home.  The Frys’ criminal defense lawyer filed a motion to dismiss and to have the search thrown out of court.  The Stevens County judge denied the lawyer’s motion to suppress the evidence.   The Frys’ defense lawyer appealed all the way up to the State Supreme Court.  There the court explained:

A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys’ residence. Fry presented the officer with documentation purporting to authorize his use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore, based on the information of a marijuana growing operation and the strong odor of marijuana when the officers approached the Frys’ home, a reasonable inference was established that criminal activity was taking place in the Frys’ residence. Therefore, the officers had probable cause and the search warrant was properly obtained.

The ruling essentially says that medical marijuana is not legal; rather it is illegal until you go to court and present a defense.  Is that clear?  Unfortunately not.  Another similar area of the law was fought out in December in King County Superior Court.  Aaron Pelley, a Seattle criminal defense lawyer, won a legal challenge on behalf of Scott Verner, a medical marijuana patient.   During a routine traffic stop, a state trooper smelled the marijuana in Verner’s car and searched it even though Verner produced a doctor’s authorization.  Attorney Aaron Pelley took the State to court and won a groundbreaking case that forced the police to return the marijuana.  I am sure the police considered that quite an indignity.  But, it is probably also  an indignity for sick medical marijuana patients to stand by the side of the road when their cars are searched.  The article made news nationally, and is available here.

Are marijuana patients and criminal defense lawyers the only ones who are fed up with the confusion in the law?  Mason County Prosecuting Attorney Gary Burleson also seems fed up.  “I don’t have a problem with marijuana being legal, and I don’t have a problem with it being illegal,” Burleson said. “But right now, I have a big problem understanding what’s legal and what’s not.”  See story.

See prior post on medical marijuana.

What do you think?  Was the Supreme Court’s ruling correct?  The court seemed to take a narrow view of the law and a literal reading of the earlier initiative authorizing medical use.  Is the new initiative more clear?  What can we look forward to from the courts in the future?  Doesn’t it seem like the police are reluctant to fully respect the medical marijuana law?  What will their reaction be to the legalization or decriminalization of marijuana?

The jury considering the assault charges against Paul Schene announced Friday that they were deadlocked, and a mistrial was declared and the jury released. Paul Schene, was a King County deputy sheriff, and was charged with 4th Degree Assault  for allegedly assaulting Malika Calhoun in a video widely distributed online.  See prior post.  The jury voted 11-1 to convict.

The prosecutor’s office announced that they would be retrying the case.  I know the customary practice in misdemeanor cases in King County is to not retry misdemeanor hung juries.  This case doesn’t seem to be the average misdemeanor.  The strategy of Schene’s criminal defense attorney, Peter Offenbecher, was to break the video down frame by frame and have the accused officer explain every action he took in terms of his police training.  As reported in a Seattle-Times article:

On the witness stand Tuesday, Schene said he used standard techniques taught at the police academy to control Calhoun.  He said he first kicked her to spin her around, grabbed her hair to control her, shoved her against a wall in a failed attempt to handcuff her and forced her to the ground by her hair to apply handcuffs.  He said he punched Calhoun twice in the left shoulder while she was on the ground because she was resisting him and his partner, who was also trying to handcuff her.  … Standing before a TV monitor using a pointer, Schene explained his actions as jurors watched freeze-framed video of the encounter.

You tend to see a frame by frame analysis of the video clips in question when officers are charged with assault based on video.

In the prosecution of the LAPD officers who beat Rodney King, the defense used police practices expert Charles Duke.  He did a frame-by-frame analysis of the videotape for the jury to support the contention that reasonable force was used.   He testified that all 56 baton swings were justified in his expert opinion under police protocols.   See related article from 1993.  In the Rodney King case the prosecutor and the defense both used expert witnesses in police procedure.  The prosecutor’s expert Sgt. Mark Konta testified that the first baton blows may have been justified but not the remaining blows.

In the case of Paul Schene’s criminal charges, it doesn’t appear from the news coverage that either the prosecutor or the defense lawyer called any use of force experts to testify.  It would be interesting to see what Charles Duke would say about this video footage of Paul Schene and Malika Calhoun.

When the police beat Rodney King and the footage was broadcast on CNN people were shocked.  I was in college at the time.   I don’t remember officers being caught on tape in such a manner prior to that.  Now, these sort of matters make the news all the time.  A person could spend all day on youtube looking at such incidents.

What is it like for the prosecutors who handle the cases against the cops?  Is there resentment among the other officers that typically work with the prosecutor?  What pressure is put on them?  I may blog about this subject in the future.

What thoughts do have on this case?

(By Steve Graham, Defense Attorney)

Four years can go by fast.  One day you are elected and on the top of the world, and then New Years Day 2010 comes around, and like a hangover, the unpleasant reality of an election year is upon you.   Rural prosecuting attorneys who won large pay raises last year (see post) will face an increase in interest for their jobs.  But, starting in Okanogan County, it appears that the prosecuting attorney could be unopposed.  East of there in Ferry County, Prosecuting Attorney Mike Sandona is almost certain to face a challenger. It was almost four years ago that he staged a coup d’etat when he ran against his boss.   He won by a large majority, and everything after that would seem to be downhill.  But that hasn’t stopped him from preparing for an election battle by joining every civic group known to mankind.

In Stevens County, Tim Rasmussen ousted four-termer Gerry Wettle for prosecuting attorney in 2006.  He does not have an election challenger that has announced publicly yet.   Mr Rasmussen connects with voters through his regular column “Prosecutor’s Corner”.  See sample.

The Sheriff’s races in the region may be interesting.  I was surprised to see a campaign bumper sticker as early as last October in Okanogan. Dave Yarnell has announced his candidacy for Sheriff in Okanogan County, and has a pretty impressive website here.  Mr. Yarnell mentioned some dissatisfaction with the current situation in the department in a newspaper article but he doesn’t get into specifics.   I guess there is plenty of time to discuss specific issues in the long hot summer of that region.   He is probably smart to get his web site up early because it can take awhile sometimes for search engines to even find your site.

In Ferry County, there was talk about election year challenges to Pete Warner.  I received emails from people encouraging Ray Maycumber and Tom Williams to run, but that seems unlikely (from an outsider’s perspective) in light of the fact that Pete Warner just promoted Maycumber to the position of 911 coordinator,  and has apparently made Tom Williams the undersheriff.  Other candidates have been mentioned as possibilities but no one that I have talked to has declared.  I did a poll last year with limited success – see here.  Comments are always welcome but I think for comments about political races people need to post their first and last name.