I know it is an off year for elections, but there are still good election battles going on.  Let’s start with the Grant County prosecutor race.  It all started when Grant County Prosecuting Attorney John Knodell decided that he wanted to run for judge last Fall.  He ran for Ken Jorgensen’s seat.  When Knodell was elected judge, he resigned from his job as prosecutor in the middle of his term.  The commissioners then appointed Angus Lee for the position, who I blogged about in an earlier post.   Angus Lee is a charismatic, 30-something Iraq war vet who was working in District Court prosecuting such cases as DUI and assaults.

Angus Lee

He was interviewed by the Grant County Commissioners, and must have charmed them because he was selected over several more experienced deputy prosecutors.  Angus Lee faces a electoral challenge from Albert Lin, an amiable ’97 Syracuse Law grad with lots of felony trials under his belt.

Albert Lin

Things got interesting when retired judge Ken Jorgensen weighed in on the political race in a letter to the editor.  Jorgensen attacked Angus Lee as inexperienced, asking “Would you hire an attorney who had no courtroom experience to represent you in an important trial?  Grant County interim prosecuting attorney Angus Lee has only been in the county for little over two years. He was admitted to the Bar in July 2005 and hired by Grant County in 2006. He has never tried a felony case in Superior Court. He has not even tried a case in Superior Court since he was appointed.”  It is true that Angus Lee is a pretty recent law school grad, but his education was delayed while he served in Iraq.

The voters seem to be turning a deaf ear toward Jorgensen, because Angus Lee was ahead in the primary.   Now that he is retired, I will say that Jorgensen seemed to get a little ornery as time has gone on.   The last time I had a case in front of him in Grant County, he became annoyed at me when I requested color copies of crime scene photographs, as opposed to black-and-white photocopies.  Ooooookay.  As to Angus Lee and Albert Lin, I have worked a little with both, and both would seem to do a good job.  The election contest has lit up the blogs down there, see for example Grant County PowerNet. (Link has been removed.)

Meanwhile, up in Omak, Washington, we are witnessing an election battle for city council between Chris Thew and Nattalie Cariker.  Thew is a former reporter from the Omak Chronicle, and I enjoyed his news stories there.  He really seemed to try to cover all perspectives.  Reporters would seem to have good qualifications for running for city council.  They often sit through meetings, and are probably well versed on the Open Public Meetings Act, and Public Record Act.   Nattalie Cariker also knows a little something about the law, having worked as a police officer for the city of Brewster, and having studied criminal justice at WSU.  A big function of any city government is working with the police department.

Up in the city of Republic, retired-attorney Alexander Wirt faces a city council election challenge from Larry Heming.

Alex Wirt ran for Ferry County Prosecuting Attorney against me in ’98, and against other opponents in ’02 and ’06, but he never won.   He gave up his bar license when he retired, so he does not appear to pose an election threat against the current Ferry County Prosecuting Attorney Mike Sandona.  Mike Sandona faces re-election next year.  See earlier post.

In Spokane, lawyer Bryan Whitaker is taking on Tracy Staab for judge.

Bryan Whitaker

Bryan Whitaker is an attorney in private practice who also works as a pro tem judge.  He has highlighted the fact that he is actually a resident of the city of Spokane, while the incumbant Tracy Staab lives outside the city limits.  There is no requirement in the city code that a judge live in the city, but as a matter of Spokane pride this issue seems to have captured people’s attention.  The Spokesman-Review ran an editorial endorsing Tracy Staab and opining that the residency of the candidates should be a non-issue.  However, in an otherwise slow election year the Spokesman’s reporters continue to cover the debate on this issue.

Tracy Staab

The issue has dragged in other city officials who have been quick to get involved, including Bob Apple, who characterized Staab as a “carpetbagger” in an email.  Jim Camden wrote an opinion piece correcting his use of the term.   Tracy Staab has highlighted the fact that she received a higher rating from the Spokane County Bar Association, and has a broader array of support from sitting judges.

The job Staab and Whitaker are running for is the position of Municipal Court Judge.  The only criminal court cases that a Municipal Court Judge hears are misdemeanors and gross misdemeanors such as DUI, simple assaults, petty theft, and possession of small amounts of marijuana.  Both candidates have broad experience in their background including work as a prosecutor and as a criminal defense lawyer.

What are my predictions for the ’09 election year?  That would put the winners as Angus Lee, Chris Thew, Larry Heming, and Tracy Staab.  Time will tell.

As always, I welcome everyone to post comments, but please limit input to constructive, thoughtful comments.

When a person thinks of their constitutional rights, they often think of their right to free speech, or to bear arms, or the right to a jury trial.  The Washington Supreme Court dealt last week with a right that we do not always think of.  That is, the right to a “public” trial.   This was in the case of State v. Strode, a case originating out of Ferry County.  The right to a public trial is in the 6th Amendment to the U.S. Constitution, which reads:   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In the case of State v. Strode the Supreme Court had to decide whether it was appropriate for a judge to question potential jurors in chambers, as opposed to the open courtroom.   On certain cases, the parties obviously want to know whether a juror has been the victim of, or been charged with the crime in question.   The practice usually involves the judge inviting the juror back to chambers, along with the prosecutor, defense attorney, and defendant.   The State Supreme Court ruled that this may be acceptable in certain circumstances as long as a certain analysis is done on the record justifying the decision.

Although we learn about our constitutional rights in school, lay people I work with are often surprised at the way that the right to a public trial works.   It is often thought that it is acceptable to “close the courtroom” at certain times or even to allow a child witness, for example, to speak to the judge privately in chambers.   Such practices are prohibited by the U.S. Constitution for criminal trials.

This right to a “public” trial has come up several times in my practice as a criminal defense lawyer.  I once had a trial where an undercover cop was testifying about work he did on a case.  Although his identity was known to me and my client, the agent still had other cases that he was working elsewhere in the state.  The prosecutor moved to close the courtroom, but the judge had to deny the motion.

As we know courtrooms are often pretty empty during a trial.  Often times the defendant’s family will be present or a spouse of a juror will attend. However, it is any person’s right to just come in to a court and watch a trial or a docket.  When I travel to different places I often like to visit the local courthouse.  I once sat through a half-day trial in New York City, and when I was in law school, I often sat through jury trials in Spokane.  The right to a public trial belongs to a defendant, but also to the public.  Often times, it is the news media who raises this issue.

I once worked as a defense lawyer on a First Degree Murder case in Ferry County where the issue of a public trial arose.   The electronic locks on the courthouse doors lock automatically at 4:00 p.m.  The attorney general prosecuting the case stepped outside for a breath of fresh air during the recess and was locked out.  After a while, when court was set to resume we wondered where he went and found him outside.   Needless to say, the settings were changed on those locks.  Although it may seem a bit silly to some, locked doors at a courthouse would have required a new trial had it not been fixed.

Several years ago, I had a case in Okanogan County where a 6-year-old child was testifying during a non-jury trial.   The case dragged on through the morning, and people started to arrive for the afternoon traffic court docket.   The courtroom that had been previously empty started to fill up, and the pro tem judge directed the bailiff to post a sign on the door directing defendants to wait outside until their case was called.  I wondered if this was permissible, but the issue never got to the appeal level.

In the case of State v. Strode, the Supreme Court granted the request of the defense attorney for a new trial.

I read a letter to the editor in the Spokesman-Review today that was pretty interesting.   Kayela Robertson of the Spokane Valley made the point that her twenty-year-old husband cannot legally carry a handgun in this state despite the fact that he has served in the U.S. Army.  See letter.   Kayela writes: “At 18 years old, he signed away his life to the Army, yet, due to his age, he can’t legally…carry around a pistol for protection.”  Generally speaking, under RCW 9.41.240, a person under 21 can only carry a pistol if they are in their own home, on their own property, or at their own place of business. The legislature enacted this law in 1994, and at the time their reasoning was as follows: “The legislature finds that the increasing violence in our society causes great concern for the immediate health and safety of our citizens and our social institutions. Youth violence is increasing at an alarming rate and young people between the ages of fifteen and twenty-four are at the highest risk of being perpetrators and victims of violence. Additionally, random violence, including homicide and the use of firearms, has dramatically increased over the last decade.”

The idea of younger people with firearms is always an interesting question in court.  In rural areas, firearm possession and use is looked at as part of growing up.  In more urban areas, a young person or a teenager with a firearm is looked at suspiciously, as if the youth in question might have motives related to gang membership.  I have written in the past about possession of weapons by youth in the past.  (See post).   Our society seems to be of two minds when it comes to youth and firearms.  As an attorney who has defended younger people caught with handguns, I never know how the judge or jury will react.  A lot of the perception comes from how a person is raised to look at firearms.

What do people think about Kayela’s point?  I saw that her letter was online, but did not see any comments posted on the Spokesman-Review’s site.  In Idaho, it appears that 18-year-olds can possess handguns.  Should our laws be changed?  Should an exception be made for veterans that are 19 or 2O years old?  Many veterans face adjustment issues when they return to the civilian world?  Is that a fair consideration?

The police of Washington State have a full manhunt underway for Colton Harris-Moore, a teen from Camano Island, who has used stolen airplanes to elude capture.  As if to jinx themselves, Island County Sheriff Mark Brown lost his temper with a “Today” show producer covering the story and said “I will not have him made into some kind of folk hero.”  Too late.  How do we know?  There is already a fansite for Colton Harris-Moore on Facebook.

A photograph Colton Harris-Moore took of himself with a stolen digital camera while hiding in the woods eluding police.

While Police might decry his status as a “folk hero”, they surely contributed to the problem by their statements to the press that describe the teen as almost like a ninja.  Deputy Jeff Paterson explained that he had nearly caught Harris-Moore in the woods and saw him with his flashlight, but  “he virtually vaporized in front of me…”  The police allege that Harris-Moore laughed loudly from the woods when he realized he had eluded the officer.   Harris-Moore has hidden from police for 18 months and has lived off of stolen items.  He is believed to have trespassed into homes and quietly copied credit card information before leaving unnoticed.  He is suspected of then ordering camping and survival gear for himself with the credit cards.   Harris-Moore is alleged to have stolen a  Mercedes, but drove the vehicle off the road and fled when the police tried to stop him.  Harris-Moore’s latest incident involves flying off the island in a stolen plane and then over to Yakima.  His mother raised eyebrows recently when she told a reporter: “I hope to hell he stole those airplanes — I would be so proud,” she said. “But put in there that I want him to wear a parachute next time.”

The administrator of the Facebook Fan page writes: “Colt is the real life 21st century outlaw. The world is his playground. Should he turn himself in, or continue on? Post your feedback.”

If I were his criminal defense attorney, I would tell Colton Harris-Moore to turn himself in right away.  It sounds like he committed a bunch of crimes as a juvenile, but by not facing the charges, he has turned 18 and will face trial as an adult.

The police might decry his “folk hero” status but all this publicity works in their favor for two reasons: 1) It will be hard for Colton Harris-Moore to hide since everyone in the country has seen his face on TV, and 2) even his friends will turn him in if they see him so that they, in turn, can receive notoriety for playing a part in the case.

I received a robocall from the Washington State Fraternal Order of Police today that really makes me wonder about the ethics of that organization.  While it is always annoying to receive an automated telemarketing sales pitch, this call was particularly offensive in that it offered to send or deliver a sticker for my car window if I made a donation.   Why would anyone offer you a sticker for your car?  Why not offer a sticker for your refrigerator, or home window, or lunchbox?  Well, what the Washington State Fraternal Order of Police is seemingly offering is the implicit promise that you would receive lenient treatment the next time you get pulled over for a traffic infraction.   Yuck.  That is pretty sleazy in my opinion, and I would hope that officers would not be swayed by such a sticker.  As a prosecutor, I always hoped that the police enforced speeding laws evenly and fairly.  Whenever I was pulled over, I would not identify myself as a prosecuting attorney to try to get out of a ticket.  That just seemed tacky.

When I checked out this Washington State Fraternal Order of Police “charity” online, I did not like what I saw. According to the listing with the Secretary of State, only 20% of any donation goes to program services.  Other police charities, such as Concerns of Police Survivors Inc. at 80%, have much higher levels.

I haven’t been the only person to complain about the Washington State Fraternal Order of Police, there is a site that tracks complaints on this group.

What do people think?  Am I missing something about this group?  Am I wrong about what the group implies by offering a sticker?  Does anyone know of a more reputable charity that people can donate to in order to support the police?

Under certain circumstances a person convicted of a crime can take steps to get the conviction off his or her record.   When this is achieved, the court orders police agencies and court clerks to change their records.   A problem arises in that private data collection companies are gathering conviction data through public records requests and maintaining and selling such records long after the conviction is vacated.  This is not fair to the individual who attempted to vacate, or expunge, or seal the record.

Private data collections, many of which advertise online, continue to sell criminal conviction data on records that courts have vacated or expunged.

Most court records on criminal cases are public.  Even juvenile court case files are typically open to public inspection.  The items in a criminal file that are not open to the public are such things as psychological evaluation, applications for appointed counsel, etc.  Typically, if a person has stayed out of trouble for a certain number of years, then they can apply to have their conviction vacated.  This is true of most misdemeanors (except DUI) and most low-level felonies.  A site that provides some guidance on how to seal and vacate convictions is www.courts.wa.gov.  The site also explains the process of a juvenile court expungement.  As you can see from the standard misdemeanor form provided, the court will order that: “For all purposes, the defendant may state that he or she has never been convicted of the offense listed….” Reading this, a person feels free to deny the existence of ever having such a conviction when they apply for a job.  Employers will often try to get applicants to list convictions that have been vacated or expunged.  Often an application will read as follows: “Have you ever been charged, convicted or admitted committing, or are you awaiting trial for any crime? You must answer “yes”, even if the matter was later dismissed, deferred vacated or expunged.”  A potential employer will often use public records searches to check for criminal convictions.  Searching an individual’s criminal history is not always very difficult.  Earlier this year, I wrote an article for Helium.com about criminal history searches.  A person need not be an attorney or lawyer to conduct such searches.  Searches through these traditional means will not typically turn up convictions that have been vacated or expunged.  The problem arises when criminal history searches are conducted through private data collection services.  The other thing that I  have found is that many times the criminal records that these private companies provide are inaccurate.  I worked as a defense lawyer on a court case in Stevens County last year and used an online service to run criminal history checks.  It turned out that when we checked the same individuals through the FBI, that the online service only had about half of the conviction data correct.

In my opinion, new legislation is needed to require that private data collection companies provide accurate records.  If an individual succeeds in vacating, sealing, or expunging his record, the online services should have an obligation to update their records as well.

Since I mentioned Helium.com, let me tell you a little more about that.  Helium is an online writers cooperative that also provides services for writers who also blog.  Visit that site or email Barbara Whitlock at  bwhitlock@helium.com for more information.  Helium is always looking for attorneys and other professionals with expertise to share to join their writer’s community.

Do you remember the O.J. Simpson jury trial that took an unbelievable 8 1/2 months to complete?  Well, the trial of Amanda Knox, an American student accused of murder in Italy, just passed that 8 1/2 month mark and may take as many as 10 months to complete.   Along with her Italian boyfriend, Amanda is accused of killing her British roommate Meridith Kercher.

Amanda Knox, a UW student from Seattle, is currently defending a charge of Murder in an Italian courtroom.

The trial began on January 16th, 2009 in the town of Perugia, Italy.  Knox was studying in Italy for her junior year.  She is a student at the University of Washington in Seattle.  I wrote about the charges she faced early last summer in an earlier post.  At that time I did not anticipate that the trial would still be pending come fall.

Prosecutors say Kercher was killed during a sex game with Knox, her boyfriend Raffaele Sollecito, and a third man, Rudy Hermann Guede, who was convicted of the murder last year.  According to the Italian prosecutors, Sollecito held Kercher down, while Knox threatened her with a knife. They allege Guede tried to sexually assault Kercher and then Knox fatally stabbed her in the throat.

I kind of wonder what is taking so long with this trial.  In the O.J. Simpson trial, the cause of the delay seemed to be endless “sidebars” or private meetings between the lawyers and judge.   In this case, there seem to be endless breaks.  In the summer, the court took nearly two months off before this case resumed.   In addition, the court only conducts the trial a couple of days each week due to the other cases that are going on.  In Italy, the jurors and judges also have a right to have certain witnesses recalled to the stand to testify over again.  In this case, over a 100 witness have been called.

Amanda's parents have spent much of their money on Amanda's defense. For more information visit friendsofamanda.org

I often wonder about what the delay is with certain trials that I hear about on the news.  As a young prosecutor, I called in the assistance of an assistant attorney general to help me in a murder case involving three people shot in the head.  The attorney warned me of the complexity of the trial, and indicated that it might take two weeks.   In fact, the case ended up taking only 5 days, from the opening statements to the verdict.  It seems in Ferry and Stevens County the judges accomplish a lot in each trial day.  The judges start early, and work late, and it is seldom that other cases interfere in the scheduling of an important murder trial.   I have found in bigger counties, the trials are sometimes interrupted by other business.

If I were the attorney for Amanda Knox in Italy, I would worry about everything the jury would forget from the beginning of the trial to the end.  The U. S. Supreme Court has ruled that taking extended breaks in the presentation denies the defendant the right to a fair trial.   In the U.S., the 6th Amendment of the Constitution guarantees the right of the accused to a “speedy and public trial.”   In Herring v. New York, Supreme Court expressed concern over a delay of “two days — a period during which the judge’s memory may well have dimmed, however conscientious a note-taker he may have been.”

The September 23rd the Omak-Chronicle ran a story covering the first court hearing in U.S.A. v. Kevin I. Pakootas in Federal court in Spokane.   Kevin Pakootas is charged with Second Degree Murder for allegedly killing his wife in Inchelium, within the Colville Indian Reservation.  He is also charged with Attempted Murder of a second individual.  The Omak-Chronicle explained that the Federal court “… refused a furlough request by Pakootas to attend the funeral [of his wife]”.

I am not sure what the readers of this article made of this request.  I checked the records in the federal court house online, and a furlough request was in fact  made on 9-15-09.

I have noticed that furlough requests for funerals are often made and are often granted in Tribal Court, whereas such requests in State court are far less common.    I once represented an individual charged with attempted homicide in Tribal Court, and the defendant directed me to try to get a furlough for his uncle’s rosary.   The court granted the furlough on the condition that I personally drive the defendant to the funeral and back.  I picked my client up in Nespelem at the Tribal jail and drove him to the rosary in Inchelium and back in one evening.  My client was grateful.  My client was later acquitted of all charges.  When I tell this story to attorneys who do not practice in Tribal Court, they are often surprised.   In someways, Tribal Court is much tougher on conditions of release pending trial.  It is more common for defendants to be held without bail in Tribal Court.  In State Court, Article I, Section 20 of the Constitution prevents judges from holding clients without bail on all cases except capital offenses.

Despite the different traditions in Tribal Court versus Federal Court, I do kind of wonder about a request for a defendant to attend the funeral of an alleged victim.  I would imagine that would be denied pretty much universally.

The Washington Supreme Court ruled Friday that Tribal police officers may pursue suspects off of reservations to make arrests.    That surprised me.  I always viewed the Tribal authority to make arrests as stopping at the border.

The case is State v. Loretta Eriksen.  A Lummi Nation police officer saw Eriksen commit traffic infractions, and then followed her off the reservation and detained her.   The case analyzed what authority the officer had to detain her off of the reservation.  Eriksen was later charged with DUI.  Her criminal defense lawyer questioned the legality of her stop in district court.

The subject of police officers acting outside of their jurisdiction arises often in my practice.  People often ask me what jurisdiction a city cop has in the county and vice versa.  Under Washington law, the police agencies of Washington State permit vehicle pursuits between local governments under the  Washington Mutual Aid Peace Officers Powers Act of 1985.  The Supreme Court rationalized that the Lummi Nation could act just like a local Washington police force.  However, under Washington law, the Mutual Aid Act (RCW 10.93.120(1)) states  “[a]ny peace officer who has authority under Washington law to make an arrest . . . .”  I guess I just don’t read that as applying to the agents of sovereign political tribes.  I tend to think of Indian Tribes or Nations as separate nations, and was taught this in law school.  Would you expect the police of Mexico or Canada to follow suspects across the border and detain them in the U.S.?

The attorney for the Lummi Tribe, in a persuasive friend-of-the-court brief, argued that to interpret the Mutual Aid Act to apply to local Washington governments but not Tribes would be discriminatory.   I really wonder in the long term if Native-Americans really want their Tribes to be analogized to another local Washington government.  In just about any other court case, the attorneys for the Tribes are analogizing themselves to separate nations such as foreign countries.  Local municipal entities in Washington are not sovereign entities in any way shape or form.   All cities, whether Republic, or Okanogan, or Seattle exist because the state legislature allows them to under RCW title 35.  Local governments are not sovereign or even quasi-sovereign.

The point of the Washington Supreme Court in this case was that people should not be able to flee accountability to Tribal police officers simply by driving off of the reservation.    That is true, but it should really be up to the legislature to fix this with a new statute.  Instead, the court created this rule with a somewhat strained reading of the current Washington Mutual Aid Peace Officers Powers.   Another problem I had with this court decision is that the Whatcom County Sheriff’s Department could have eliminated this problem by cross-commissioning the Lummi Nation police.   The defense attorney for Ms. Eriksen pointed this out in his brief.   He explained: “Sheriff of Whatcom County can give tribal officers the power to arrest under Washington law by cross deputizing them, but he has not done so.”  While it is common for Sheriff’s departments to cross-deputize Tribal officers, there is also some discrimination too.  Some county or city law enforcement agents view Tribal Police departments as inferior to their departments.  In my experience, the Tribal Police departments are certainly on par with local agencies, and often exceed local agencies in manpower, and with expertise in the collection of evidence.  The decision of the Supreme Court does not mention the failure of the Whatcom County Sheriff to cross deputize the Lummi Officers.  I feel this kind of lets him off the hook.

In the years to come, certain question will need to be clarified.  If a tribal officer is permitted to leave the reservation to make a detention, how long does an officer have?  Does the officer need to be directly following the vehicle, or can he locate the suspect many hours later at his home in Republic, or West Omak, or Grand Coulee?  If the vehicle successfully eludes the Tribal Officer, can the officer then conduct a man hunt off reservation for the suspect?  What implications will this decision have for the Spokane Tribe or Colville Confederated Tribes?

I discussed other issues related to tribal sovereignty in an earlier post on June 6th.

The Spokesman-Review  ran a story Thursday raising questions about the way an attorney for the city, Rocky Treppiedi, has gone about defending the lawsuit filed by the relatives of Otto Zehm.    The attorney is defending the city of Spokane from a lawsuit filed by the relatives, while at the same time federal prosecutors are investigating and prosecuting Officer Karl Thompson who was involved in the death of Zehm.  (See earlier related blog post).    The Spokesman-Review reported that Treppiedi has been accused of “gleaning information from police and civilian witnesses called to testify before the federal grand jury and then [feeding] that information to  Thompson….”   And that this occurred even after the Spokane Police Chief imposed a gag order on her employees.   Treppiedi is not a police department employee.  At this time, it is not entirely clear how this was inappropriate.  The city attorneys will have a chance to respond in writing to this allegation, which was apparently brought by an attorney in the criminal case.  The attorney has been accused of taking a heavy-handed approach to defending the city, and the Otto Zehm case raises interesting questions of what a city attorney’s job is when defending allegations of police misconduct.  

While I understand the charges against the police, I don’t understand how the city attorney has come under so much fire.   When government employees mess up, even in a big and public way, it is still the city’s job to try to defend the matter.   After the city was sued, the city filed a formal response to the suit as required by law.  The response took the position that the officers’ response and their use of force was justified by the actions of Otto Zehm on the night in question.  The Spokesman-Review reported on this in a story entitled: “Zehm to blame for fight with officers, city says”.   The story explains how the Treppiedi’s response took the position that any use of force against Zehm was justified because Zehm resisted arrest.  When I read this at the time it seemed like the city attorney was just doing his job.  It is his job to defend the actions taken by the officers on that night in question, and he is really just the messenger.  Attorneys have clients to defend.  For some reasons this seems to be better understood by the public when an attorney is representing a person accused of a crime, rather than a governmental agency in a civil suit.

Spokane City Councilman Bob Apple criticized the way that the city defended the Zehm lawsuit.  (Listen to interview.)  He described the city’s position as an attitude of basically, ‘We’re not responsible and this life [Zehm’s] isn’t worth anything.”   He is correct that the city is denying responsibility, but when I read the entire response the city filed, I did not see the city attorney say or even suggest that Otto Zehm’s life was not worth anything.

I saw a letter to the editor Friday from Karen Dorn Steele, a former reporter for the Spokesman.   She criticizes Treppiedi, and complains about a lot of things he has done in the past that she does not like.  Fair enough.  But then she writes: “A city attorney is supposed to represent the public interest, not a few rogue elements of the police department.”   Unfortunately, the city attorney has to do both.  He has to vigorously take the position that the police acted reasonably, and the other side takes the position that the police did not.  And then the jury makes the decision.  In this case, it would not surprise me if the city is found to be liable for a million dollars or more.   But if the city is to be found liable, the public needs to know that the city did its best to minimize the damage.  You would hope that when a person is harmed by the government that the government would try to resolve this outside of court for fair compensation.  However, these discussions are rarely made public, so it is really hard to say if the city is playing hardball in this case.

Relations between the city attorney and the Spokesman-Review are not helped by the fact that Treppiedi once referred to the paper as the “local fishwrap”.  See story.   The city attorney made this statement in an email to Mayor Jim West when West faced a scandal involving sex with a high school  student.  Treppiedi told West: “Mr. Mayor – hang in there – the local fishwrap is out to sell papers, and you’re out to serve citizens.”  While it is a city attorney’s job to defend the actions by city employees, it is also his or her job to try to prevent any misconduct from happening again, and to minimize damage.    A city attorney’s job is to tell the city bluntly how the employee messed up and to work with city leaders how to prevent the problem from happening again.  But again, this is all out of public view.  I guess in the instance of his email to West, the city attorney may have been better off telling West to resign, or at least saying nothing.

I once had the chance to assist in defending a government from allegations of police misconduct.  The lawyer from the insurance company (who was paid buy the hour) did not want to tell the police the truth about how they messed up, and did not want to make any settlement offer at all.  This made him very popular with the police, but actually did the police a disservice by not helping them learn from their mistake.  I let the insurance company know how I felt.

I hope that the public doesn’t forget about the broader issues of police accountability.  Sometimes there is a highly publicized excessive force case, and people forget about the smaller cases.  Rodney King, for example, was assaulted by the police,  and received a settlement of 3.8 million.  But I am sure there were less sensational cases of police abuse where the victims could not even find an attorney, much less receive compensation.  The public deserves a police ombudsman with sufficient powers to curtail the problem.

On Monday, I did a jury trial in Spokane where a man was accused of assaulting a police officer.   The police officer tazed my client several times.  Under the police guidelines, an officer cannot use the taser unless facing “assaultive” conduct.  I suspected the police alleged that the “assault” occurred in order to justify (after the fact) the amount of force that the police used on him.  The officer testified well and seemed very credible.  The next day an independent witness came forward and stated that, unbeknownst to the officer, she had witnessed the whole incident through  her blinds.  She did not see the defendant assault the officer, and the jury believed her.