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.

Before Angus Lee was a candidate for Prosecuting Attorney in Grant County, he served in the Marines Recon where he got shot up in a gun battle with the enemies.  You have to wonder if he is looking for a foxhole now, as some pretty big opponents see fit to go after him in this year’s election battle.

Former State Senator Harold Hochstatter took aim at Angus Lee at a candidate’s forum where he ambushed Lee with an awkward question about Richard Fitterer, a judge in Grant County.   The outspoken Hochstatter asked Angus Lee about an incident where Fitterer allegedly sideswiped another car.  The incident was covered in the Columbia Basin Harold, and an excerpt follows:

Former state Senator Harold Hochstatter stood up, asking for permission to address Lee, receiving permission from Simpson (the moderator).  Hochstatter recounted an accident occurring June 5 of this year. He claimed Judge Rich Fitterer sideswiped a car coming out of Quincy. He said an officer stopped the judge’s car at Rocky Ford Creek.  “The officer who didn’t arrest, recognized the judge. I knew that in July when I was here at another debate and nothing has been done,” Hochstatter said. “That was June 5 and now it is four months later. Are you going to do anything about that?”  “So you’re telling me that a judge got into a fender-bender and you want me to prosecute him?” Lee asked. “Let me point out the way a justice system works Harold. The police write reports and they arrest people and send that to my office. My office has never received any information of any kind, regarding what you are talking about. If we receive any information from law enforcement that there is probable cause for a crime, we prosecute it, regardless of who it is.”  Hochstatter pulled out a CD he claimed to be a recording of officers identifying the judge and speaking about the incident as it took place, and brought it over to Lee.  “This is from the (Multiple Agency Communication Center),” he said.  Lee accepted it.  “OK,” Lee said. “I’ll take a look at it tomorrow morning.”

This is what you call an ambush.  Hochstatter knows how to zing somebody at a candidates night, having run for governor in 2000.  And Harold Hochstatter should find a better way to spend his retirement then picking on young, local prosecutor candidates.  Hochstatter is one of those attention hounds that probably found it hard to sit still and watch other candidates talk, and couldn’t resist the urge to elbow his way back into the spotlight.  Since when is it fair to ask a prosecutor candidate about any particular pending case anyhow?  Angus Lee has to practice in front of Judge Fitterer as an attorney, and Harold Hochstatter put him in an awkward position.  Why didn’t Harold Hochstatter go to see Angus Lee about his concerns man-to-man?  That would have deprived Hochstatter of the element of surprise, and Hochstatter needed the theatrics to draw the spotlight on to him.

When I say Harold Hochstatter took aim at Angus Lee, that is a gun metaphor, and gun metaphors are something that Hochstatter is particularly fond of.  Hochstatter drew a rebuke from the governor when he stated that he thought sometimes it was awfully close to the time when “shooting” would be necessary to defend against unfair government regulation.

One of Angus Lee’s assistant prosecuting attorneys, Teddy Chow, later said that the office had received some reports months after the incident, and that Angus Lee wasn’t being straight with Hochstatter.  But I do not see how it is that a prosecuting attorney in a county with the population of 75,000 can be expected to keep track of every police report for every traffic case.  Anyhow, even if Angus Lee knew something about the matter, he was correct to bite his tongue at candidates’ night on any incident pertaining to a Judge.  The lawyer rules of professional conduct RPC 8.3 say that all lawyers should make “efforts to defend judges and courts from unjust criticism”.  And Angus Lee was correct not to put Judge Fitterer on trial at a candidate’s night, particularly when Fitterer was not around to defend himself.   If Teddy Chow thinks Richard Fitterer should be prosecuted, he should have referred the matter to a special prosecutor.   A traffic accident for a judge should not be allowed to become a political football.

Aside for his other qualifications for office, Angus Lee is definitely developing one particular characteristic that you need for public office.  You need to have a hide like an alligator.

The expense of high quality video surveillance equipment has plummeted, and many businesses are installing sophisticated  systems into their businesses.  This is posing a challenge to robbery and burglary suspects.  It seems like you cannot watch the news or go online without seeing photos or video footage of these guys caught in the act.

But burglary and robbery suspects are finding new ways to cover their faces when they are on the job.  I saw this photo to the left in the Olympian online yesterday that the police released with the hope of identifying him.  For the latest Eastern Washington crime/court news, I visit the blog Sirens & Gavels.  The stories in this blog by Meghann Cuniff usually include surveillance photos.  I read the Spokesman-Review in print, but I check their online site for the audio/video content.

I follow all the local oxycontin robberies, and have blogged about this in the past, see earlier post.  The pattern that many of these robbers fit, is to try to cover as much of their face as possible without it seeming too suspicious.  Obviously if a person walks into a pharmacy or business with a bandanna over their face then that will alert everyone as to their intentions.  In my experience as a criminal defense attorney, some suspects keep these robberies as low-key as possible, simply presenting their demand to the counter in the form of a note.  In Meghann Cuniff’s blog today,  she posted surveillance footage of a failed armed robbery attempt by a man who allegedly walked into a pharmacy in Hayden with a gun to attempt to get oxycontin.   The suspect left empty-handed because the pharmacy avoids keeping it in stock due to the rash of such robberies.  Notice the suspect’s mannerisms as he walks into the store.  He clearly is aware of the presence of the security camera, and would have likely visited the store in advance to observe the placement.   The suspect casually covers his face with his hand, as if to suppress a cough, but drops his hand down after he passes the camera.   His head is covered with a hood and hat.

Such surveillance videos pose a challenge to the investigator and attorneys handling such cases.  The equipment is difficult to operate, and often times a store owner is not aware of how to duplicate the recording for the police.  In metropolitan areas, specialized robbery or major crimes detectives are well practiced at handling such equipment, but in our more rural counties deputy sheriffs often struggle.  As a defense attorney, I have dealt with armed robbery allegations cases where the video was replayed by the police to see, but was never copied for court or made available to the jury.   Often times, when a copy is made the file is “compressed” reducing the quality of the video footage.  “Compression” is the process by which a larger data file is reduced in size to more easily fit on a disk or flash drive.  Video quality varies from camera to camera, but unlike on TV, it is rare that the video can be significantly enhanced.  When I defended an armed robbery allegation in Okanogan County, I worked with an expert who used Photoflair to try to enhance the image, but it was not very successful.   Photoflair has been used in a lot of high profile cases, and can be helpful, but it is not like on CSI.   In the future, the police will not necessarily need to post the photo of a robbery suspect to solve the crime.  Face recognition software already exists and came on my MacBook when I bought it.  When I add photographs from my camera to my computer, the program recognizes the subjects of the photos and tags the photos accordingly.  It is possible that someday the police could match a photo of a robbery suspect with other photographs the suspect has posted on social networking sites.

Having defended such cases and worked with oxycontin addicts, I grow frustrated with the manufacturer of oxycontin, Purdue Pharma.   As I wrote in an earlier post, pharmaceutical company Purdue-Pharma invented and mass-marketed oxycontin.  The company agreed that it committed a felony when it marketed oxycontin and hid how unsafe it was.  The company faced 600 million in fines after it plead guilty, but the executives never went to jail.  The company encouraged doctors to prescribe it not just to dying cancer patients, but to people with even moderate pain.   Many addicts were thus created.  According to a story in the New York Times, “…Purdue Pharma contended that OxyContin, because of its time-release formulation, posed a lower threat of abuse and addiction to patients than do traditional, shorter-acting painkillers like Percocet or Vicodin.”  Less addictive then vicodin (i.e. hydrocodone)?  Now that really makes me chuckle.   Remember the above video of the robbery suspect who tried to rob the pharmacy but they did not stock oxycontin?  He left empty handed.  He didn’t ask for percocet or vicodin as an alternative.  He knows there is no substitute or no pharmacy drug like oxycontin.  It’s only equivalent is heroin.

The DEA has cut back on prescriptions for oxycontin, but you really can’t put the genie back in the bottle.  Addicts will rob pharmacies rather then suffer the agony of withdrawal.  Further steps are needed to limit oxycontin’s use.

On September 19th, 2009, Phillip A. Paul walked off from an outing at the Spokane County Fair for patients of Eastern State Hospital.   Phillip Paul was in the custody of the state hospital due to a finding of insanity following his murder of an elderly woman in 1987.  A lot of people understandably wondered why a person like him would not be better supervised if out in public.  But others wondered why there should be any outings at all for any mental patients.  After Paul was caught,  several experts addressed the issue.

One interesting article was by Kevin Graman of the Spokesman-Review.  Kevin Graman interviewed retired mental health counselor Ron Anderson, who is president of the Spokane affiliate of the National Alliance on Mental Illness. Graman asked Anderson if he thought it was appropriate for forensic patients to attend public outings.  (Forensic patients are patients that have committed crimes).   Anderson explained as follows: “If you look at the goal of recovery as being returned to the community, it would seem appropriate.  That is the goal of recovery, to get people back into society.”  Ron Anderson commented on the media reaction to the story explaining that “…the use of the term ‘paranoid schizophrenic killer on the loose” sounds like he was on a killing spree at the time.  He was in recovery.  He was taking medications.”   Ron Anderson explained that as a result of this incident all state mental patients (including those in units other than the forensic unit) have lost the privilege of outings.

There was also a good opinion piece on the media coverage of this incident that was written by Jennifer Stuber, a professor at the School of Social Work at UW.    She agreed that this particular patient should have been better supervised, but questioned the media coverage.  She wrote: “Many of the news stories had a headline that linked mental illness to violence. ‘Insane Killer,’ ‘Mentally ill killer,’ ‘Schizophrenic killer’ were used repeatedly. Research has continuously found that a diagnosis of major mental illness alone does not predict violence. The severity of Paul’s symptoms and his history of violence and criminality are a valid concern, but not his diagnosis alone.”  Jennifer Stuber explained that by describing Phillip Paul as an “insane killer” made him seem like he was an immediate threat to the community.  Jennifer Stuber is right about that.  I was in Spokane a little bit around that time, and there was definitely the attitude that people better lock their doors, and stay out of the area as if this guy was on a killing spree.   Some commentators acted as if the justice system failed by finding Phillip Paul not guilty by reason of insanity.  The ironic thing is that if he had actually been convicted of the crime, he would likely have been released years ago for the 1987 offense.  The standard prison range for Second Degree Murder is 10 to 18 years, and that is before any credit for good behavior.  At least Eastern State Hospital was trying to prepare these people to succeed in life once they are released.  People are released after serving lengthy sentences for murder all the time by Department of Corrections,  and people don’t break into a panic every time a discharged inmate leaves the facility grounds.

It seemed like everyone wanted to jump on the bandwagon criticizing Eastern State Hospital.  Spokane County Sheriff Ozzie Knezovich said “I can tell you there was an extreme amount of anger in the law enforcement community” and he said he plans to bill the state $37,000 for his department’s expenses.   But how many times do blunders by the police lead to the release of violent criminals?  This occurs when the police accidentally destroy evidence, violate a suspect’s rights, or overlook obvious clues.

No one is claiming that Eastern State Hospital showed good judgment in including Phillip Paul in the group of patients for the outing, but the danger posed by the escapee was overstated in my opinion.

A couple of days ago I received in the mail the Washington DUI Practice Manual, a book by DUI attorney Linda M. Callahan and published by West Publishing, Thomson Reuters.  This most recent copy is the 2009-2010 edition, which is the second such volume. I believe that last year’s edition was the first time that Thompson Reuters published a Washington Practice volume on DUI law.  It is an important edition to the West Washington Practice series.

I have purchased or borrowed many other DUI law books over the years, and I have not found any other books that are as helpful or informative as this book.   With others I have looked at, it has seemed that the material was outdated, or not applicable to Washington State, or that the authors were saving their best strategy ideas for themselves.  The Washington DUI Practice Manual covers it all, it is geared toward Washington State, and it is updated every year.   It is not cheap to buy a new volume every year, but it is worth it to stay on top of the latest changes in DUI practice.  DUI law is considerably different from other areas of criminal defense work in that it changes from year-to-year, and is largely dependent on the scientific reliability of the testing involved.

A DUI case usually begins with a stop by an officer for a traffic infraction, and the officer requests that the driver perform field sobriety tests.  In this book, chapter 21 is dedicated to the science of such tests, and making sure that the tests are administered correctly, and that the jury understands the limits of such tests.

Author Linda Callahan also covers the science of the PBT, which is the portable breath test that an officer typically asks the driver to take while still at his vehicle.

The results of this test are not admissible at trial, but can be considered by the judge in determining whether the officer had probable cause to arrest the driver.  Linda Callahan’s book covers the history of the PBT instrument, the requirements  for its use, the certifications necessary to operate it, and the admissibility of the refusal to take such a test.

Attorney Linda Callahan covers the important information on the tests for alcohol that occur later in a case, namely breath testing and blood testing.  As many are aware, the accuracy of the breath test instruments was called into question recently due to deficiencies in the State Toxicology Lab. (See article.)   Linda Callahan also covers the difficulties that the State Toxicology Office has faced since audits revealed a failure to abide by the rules, regulations and policies regarding the handling of  blood samples.

In addition to DUI defense, the Washington DUI Practice Manual also covers related crimes such as Reckless Driving, Negligent Driving, Hit-and-Run, Reckless Endangerment, Driving While Suspended, Boating Under the Influence, Minor in Possession of Alcohol, Felony Eluding, Vehicular Assault, and Vehicular Homicide.

In this book Linda Callahan also covers the separate proceedings that a driver faces with the Department of Licensing (DOL).  Every year the State Legislature changes the laws governing DOL, and a criminal defense lawyer needs to be aware of the changing laws on license suspensions, SR-22 insurance, and ignition interlock devices.  The Department of Licensing conducts their own hearing on whether a driver had over a .08 breath alcohol or blood alcohol level.  This year a new law went into effect allowing some suspended drivers to obtain an ignition interlock license, and that new legislative change is covered in Linda Callahan’s book.

I would recommend this book to any lawyer who does DUI defense.  I understand that Linda Callahan has also published a book geared toward laypersons entitled The DUI Book, Washington Edition.