The last time we talked with Jonnie Bray was in May of 2010, and she had her car packed up and was heading down to the Hopi Nation to work as a prosecutor.  She is back, and her year away from home gave her a new perspective on things back in Nespelem.  Jonnie Bray recently announced her candidacy to run for the Colville Business Council.  Unlike in State government where lawyers often run for elected office, a Spokesperson running for Tribal Business Council is rare.  Jonnie Bray indicate that her work as a trial attorney gave her some valuable public speaking skills out on the campaign trail.  I caught up with her online last week, and fired a couple questions at her.  Here is what she had to say:

Q: Do you think the Tribes domestic violence criminal code has been a success? Do you think that it has helped reduce domestic violence or helped teach that such violence is unacceptable? Would you suggest any changes to the DV criminal code if you were elected?

A: I don’t think the DV Code has been a success. We implemented a code that requires defendants to do DV treatment, but have not funded DV Perpetrator treatment. We require traditional dispositions, but do not identify sources where people can receive this, what it should entail, or how involved this should be. This is exacerbated by the fact that more than half of the prosecutors are non-Indian. What do they know about appropriate traditional cultural dispositions unless our CBC provides guidance/policy to assist in the implementation of requirements? I don’t think it would be fruitful for me to try to change the code. Even though I think there are serious issues. I am still waiting to hear from the Court of Appeals on a few big issues. My answer could be different depending on what the Court of Appeals decides.

Q: Do you see any room for improvement in the Tribe’s judicial system? If so, what improvements would you support? Do you see any opportunities for cost savings within the court system?

A: There is plenty of room for improvement. However, with the separation of powers, I don’t think I would be in a position to make those improvements. The CBC has the authority to recruit and hire quality people to act as judges in our court. Lately, I see a lot of “knee jerk” legislation. I would encourage the council to stop doing this. We shouldn’t make a law or change a law because of one bad experience. It’s hard for me to imagine a time when a law change must be done on an “emergency basis.”
That’s for national disasters not a guy who gets out and commits another crime. There are some legislative changes that I think would be very beneficial, as well-like changing the order of outside legal authority: state common law, federal law, etc. I would like to see other Tribe’s laws somewhere in this mix. There is such a large body of Tribal Indian Law now, but we can’t even rely on them for persuasive authority. We could save money by contracting for defense services. Also, instead of hiring special prosecutors, I would like to see us start an association of Tribal Prosecutors. I think this pool could be used a resource to share prosecutors among tribes, to provide training, and research materials that have a more Native American Feel.

Q: Do you think that the Law & Justice committee has typically had a good understanding of the Tribal Court System? Would you be interested in serving on the L&J committee?

A: I have a very keen interest in being a part of L&J. In my opinion, it does not seem like the committee as a whole has a good understanding of issues relating to the Tribal Court or to Law & Order. A good example of this is that the CBC gets a report from the police chief every week on what is going on. Often questions relate to why certain charges were (were not) filed or why someone was released from jail. Things the police have no control over. None of the other programs give reports on a consistent basis.

Q: In 2009, in an interview with the Wenatchee World, you expressed frustration with the federal prosecutors that they were not assisting enough in prosecutions on the reservations? Has this improved?

A: It has, but not in cooperation with the Tribes. They come and take people. They don’t do it with respect for this sovereign nation. What happened to the extradition process? In addition, when they take cases, the Tribes don’t just dismiss. I feel more frustrated now, in some respects.

Q: You spoke publicly about the subject of “nation building” with respect to the Colville Tribes. What nation building is there left to do?

A: We don’t even have a Preamble from the people. You do! We adopted a generic constitution and code that were meaningless to us and now we just do poor patch jobs when something occurs to us. I don’t think we’ve even begun to build our Nation. First we need to quit warring among ourselves. We need to abandon our divisions—4 districts, 12 Tribes, 3 languages, and multiple spiritual/religious groups. We have not made the conscious decision as a Tribe to unite, dispel the divisions between and be one Nation. (I don’t mean forget about the Tribes. I am proud to descend from the San Poil, Nespelem, Lakes, Entiat, and Colville Tribes—but I don’t think we should be “confederated” we should just be the Colville Tribe—because that is a true union, even if I don’t like the name.)

After we have done this, then it is time for us to focus on what ails us. We look at our dysfunction and our in-fighting and determine our focus:

Example:

Poverty=Economic Development, Education

Alcoholism=Quality Mental Health Services and Secondarily Chemical Dependency Treatment

What we also need is to educate our people about our defeat. Most nations don’t require this because they begin Nation Building as soon as the war is over. The younger generation doesn’t even realize that being Native American has little to do with our race. They need to know what happened historically and to have instilled in them some pride for our resiliency. That is not a universal concept taught here, but it should be.

Q: Didn’t the CBC enact a juvenile code some years back? Whatever happened with that? Has that ever been implemented? Why are native kids still going to Okanogan and Republic for court?

A: When I left for Arizona they were still working on the code, I don’t know why they quit. The Code has not been implemented. We received a grant that was going to largely be used to spearhead the drafting of the Juvenile Code. There is a grant administrator. Recently, they put out an announcement for RFPs to hire an attorney to do the code drafting. It is my understanding that the Tribes do not want to handle Juveniles until the new code is in place along with all the services the kids will need.

Q: People often say that stepping back from something for a while gives you a new perspective. Did leaving for the southwest for a while give you a new perspective on life in Nespelem? Did it give you a new perspective on the court system of the Colville Confederated Tribes?

A: Yes. I left here, in part, because I thought things were pretty bad here. Like the economic situation here. Poverty. Drugs. Alcohol. In particular, I felt like our court system needed a serious overhaul. I was dissatisfied with the interference with our “separation of powers”, the legal defense provided most people, the lack of quality rehabilitation services, the lack of cooperation among the “professionals”, and the back biting that I could see on a day to day basis.

There were certain things about being at Hopi that didn’t strike me right away. Like the poverty. Hopis still live in their traditional homes, made from the earth for the most part. Some villages had no electricity, no water in the homes. The people in court there were a lot like the ones here…high school diploma or GED, some chemical dependency problems, broken homes, crowded homes, poor transportation, no license. However, a lot of these ran roadside food sales to earn a little cash. Like here, there weren’t many jobs. The good ones often when to the outsiders like me. If someone owed a fine, he would ask the Court for additional time and he would tell you when the next big influx of tourists would be around and assure us that they would carve extra Kachinas so they could make more money to pay the fees. You could tell that people who were making $200-400 a month were proud of that. I never heard anyone complain about being broke. This was a stark contrast to home. No one here sells food, artwork, etc. like they did down there to support their family. No one here would be happy with the amount of money the Hopis earned.

The difference? There are many. The Hopis don’t get per capita payments. They never have. They don’t expect handouts from the Tribe. It’s instilled a different work ethic or responsibility for self. I’m sure it’s much more complicated than that, but that’s what I thought.

The sad thing is with the level of poverty and social issues there, the drug problem was worse. It was a dry reservation with too many bootleggers. The police cracked down on the alcohol use. However, there was also a meth problem out there. It amazed me. The nearest city was more than an hour away and there was nothing in between but barren road. The worst case I ever dealt with was at Hopi. It involved two young men (one guy had been out of prison for just a few months and the other one was just 19). They were cousins. While high on meth, they stomped a third guy to death for not letting them smoke from his new pipe. They were found sitting in a shed marveling at the brain matter in the tread of their boots and who had blood higher up their legs.

There was no meaningful public defense at Hopi. There was a guy with a law degree (who was not admitted to any bar) and his one lay advocate. I only did one trial down there and won. However, it didn’t feel very good about winning because it didn’t seem like the defendant’s representation had a clue about voir dire and the trial process just went downhill from there. Worst yet, this guy couldn’t represent about 90% of the people coming through court. So everyone else would have to pay money to be represented. There was one guy who was rumored to represent people in lieu of personal favors. There was one lady, who was a member of the Tribe who struck me as a good advocate. She was a judge for another tribe and so she only had 2-3 cases out at Hopi and she wasn’t cheap to hire.

So I spent 2-3 days a week talking directly to defendants. I always started out telling them “please don’t lay out everything you have to me, because I will use it against you at trial, if we have to go there. “ Just give me a summary. I also spent more time thinking about what to charge and what motions I would file if I represented them and what the result of those motions would be because I had such an unfair advantage over these defendants.

So, I came home and I felt very grateful for my reservation. We are pretty fortunate, I think.

Q: Have you ever thought about trying to become a lawyer in the State courts?

A: Yes. I have finally decided that it’s in my future. When I was younger, I still wanted to go back to school to become a doctor. However, I want to specialize in something. I haven’t decided on whether to become a nurse practitioner first or just do international law.

My goal is, if elected, to serve one or two terms (God forbid three terms!), accomplish the things I’ve already described to you and then move onto my next big project.

Here is an interesting video from 1999 that I just uploaded to YouTube. It is a KXLY clip from 2000 where reporter Tom Grant came to Republic to interview Sheriff Pete Warner and me about one of the first medical marijuana cases in Ferry County. (I was the elected prosecutor in Ferry County from 1998 to 2002). The video is pretty much self-explanatory. Thank you to medical patient Aaron Ash for dropping this off at my office last month. I had the VHS converted to DVD and here it is! It is interesting that it is 12 years later, and the state still hasn’t sorted out this medical cannabis thing? What do you think about this news story? Next week I will post another YouTube video about current medical marijuana issues that some friends in Okanogan gave me.  To view the video, click the image below. ↓

The Court of Appeals in Spokane ruled that local police do not necessarily need a warrant sign by a Tribal judge to search Indian trust land. See decision. The case stems from a person I represented in Okanogan County. The defendant was suspected of burglarizing a railroad depot on the Colville Indian Reservation in Omak, Washington. The railroad Depot was on fee land, but the police then proceeded to search the residence of my client on trust land, also in Omak. The Omak Police Department obtained a warrant from a judge in Okanogan County rather than approaching a judge in the Colville Tribal Court. The defendant is an enrolled member of the Colville tribe. Whether the police could do this has always been a gray area of the law so I figured I would send it up to the appeals courts. Next we will be taking the issue to the State Supreme Court in Olympia. The decision by the Court of Appeals was authored by Judge Kevin Korsmo.

The court’s decision also rejected a challenge we made to the Okanogan County jury system that fails to assure a sufficient number of Native-Americans on jury pools.  We will be taking this issue to the State Supreme Court too.  This issue was something that I have been working on since 2005, and I wrote a blog post about the subject in 2009.  See post.

As a criminal defense lawyer who works a lot in Okanogan and Ferry County, I read with interest the news that policy changes would apply to hunting in Okanogan and Ferry County.  The Colville Tribe and the State Department of Fish and Wildlife has struck a new agreement governing off-reservation hunting by Colville Tribal members.  The State game agents will no longer site Tribal members for six different hunting-related offenses, and will refer the cases to Colville Tribal Court instead.  The offenses are:

1. Possession of a loaded firearm in a vehicle
2. Spotlighting
3. Negligent hunting from a road
4. Hunting while intoxicated
5. Hunter orange requirement
6. Hunting hours violations

Most of these offense are also illegal under the Colville Tribal Code, and presumably, the Tribal Prosecutor would take enforcement action once the referral is made.  The State Fish and Wildlife Department has suffered a lot of financial cutbacks, and there are not a lot of agents around to make these referrals.  For example, Ferry County used to have two agents that lived in the county, Tim Hood and Ron Cram.  However, both men have since retired, and no WDFW agents currently live in Ferry County.  During hunting season last fall, an agent from Stevens County came over to Ferry County for a little bit, but the enforcement was nowhere near what it was 3 years ago.

The Colville Tribe has disliked and fought the loaded firearm rule for years.  When I was a prosecutor in Ferry County in 1997, the Colville Tribe sent attorney Alan Stay to Republic to fight a ticket like that.  The agreement signed by the Colville Tribe and the Fish and Wildlife Department is not binding on the local independently elected prosecutors, and it will be interesting to see if further legal battles continue.  Loaded firearms in vehicles are illegal under the game code (RCW 77.15.450) and the general criminal code (RCW 9.41.050).  Load firearms are often discovered by county sheriffs and state troopers when they are conducting their patrols.  Will they refer their cases to the local prosecutor or to the Colville Tribal Prosecutor?  There may have been a concern by state officials that the Tribal prosecutor would not want to prosecute these offenses. Time will tell.  There are a lot of offense that the Tribe takes more serious than the State of Washington.

Steve Graham is a lawyer who works on hunting cases in eastern Washington.

It is distressing to be an out-of-state traveler cited with a marijuana charge in Washington State.   One minute you are driving down I-90 going about your business, and the next minute you are pulled over and the police are tearing your car apart trying to find a gram or two of marijuana.   Or maybe you are at a concert at the Gorge Amphitheater, and you are wondering why the police picked you out of the hundreds of people that are in possession of marijuana.  Sometimes it is just rotten luck, and sometimes it a a matter of police profiling.  But either way, you are given a court date, and you are wondering how this hassle is going to disrupt your life for the next couple of months. When you get a ticket on a weekend, you are often left scrambling trying to get a hold of a criminal defense lawyer to discuss the case.

How your Washington marijuana case is resolved is often influenced by geography.  In Seattle the police and prosecutors really don’t bother with misdemeanor marijuana charges.  However, in eastern Washington, the story is different.  The prosecutor policies are more conservative, and defendants quickly learn about the mandatory 1 day in jail and $250 fine for even misdemeanor amounts of marijuana.  However, here are some pretty uniform things that you can expect when cited for marijuana possession in Washington.   Also, there is a lot that a defense lawyer can do to protect you from the penalties of marijuana possession.

Arraignment

When you are cited for possession of marijuana under 40 grams, you will often be given a ticket (sometimes an “e-ticket”) that will require you to appear in court for an arraignment.  For an out-of-state traveler, this can be a huge hassle to have to return to the state.  However, sometimes the arraignment will be canceled if a defendant hires an attorney and the attorney files a “not guilty” plea with the court.  In many jurisdictions in eastern Washington, the arraignment can be waived, thus saving the defendant a trip back from out-of-state.  Talking to the court clerks is often pretty frustrating because they do not have the authority to waive a defendant’s presence at a court date.

Appearing by phone

Jurisdictions in eastern Washington vary greatly when it comes to appearing by phone.  In Spokane, this is rarely allowed.  In Grant County, it is sometimes allowed, and in Okanogan County this is often allowed if your lawyer seeks permission in advance.  Some jurisdictions, like Ferry County, are slow to even let lawyers appear by phone.  I often represent defendants from out-of state on these marijuana charges, and appearing by phone can save a person from having to buy an $800 plane ticket to come back.  However, doing a plea of guilty by phone is pretty rare, and under the court rules a waiver of speedy trial should be done with the defendant present in court.  However, lawyers often get around this issue by noting a “FTA” or “failure to appear” on the record thus allowing the parties more time to prepare.  You can usually expect a criminal defense lawyer to try to minimize the amount of time that you need to appear for court when you are charged with possession of marijuana

Medical Marijuana

As a criminal defense lawyer, I often face the issue of out-of-state residents who are cited for possession of marijuana when they have medical marijuana cards from their home state of California, Montana or Oregon.  Getting an out-of-state medical marijuana card recognized in Washington is an uphill battle.  However, even in the absence of a strict legal defense, an attempt to comply with the laws of a person’s home state is certainly looked upon favorably by the courts.  I am often asked about whether it would be helpful to obtain a Washington medical cannabis authorization after the fact.  This is sometimes helpful, particularly when there is a showing of a serious medical condition.

Probation, etc.

If you don’t get your case dismissed, there is often some follow-up work to do.  Sometimes you will be asked to go to an 8-hour Alcohol /Drug Information School or “A.D.I.S.”  This can sometimes be hard if you live out of state.  For example, I have never really been able to find equivalent A.D.I.S. classes in California.  Often times, I will ask the judge and prosecutor to accept an equivalent online class.  If a person is ordered to be on probation, this can be problematic for an out-of-state resident.  After all, a person can’t very well commute from San Diego or Bozeman, Montana just to see a probation officer.  Unlike felony probation, it is unlikely that you will be able to get your misdemeanor probation transferred to another jurisdiction.  Sometimes it will be a condition of probation that a person get a chemical dependency evaluation to make sure that the person is not chemically dependent or “addicted” to marijuana.  All I can say on this subject, it is it is best to ask around to find a treatment center that recognizes marijuana for what it is, and what it is not.

In Washington state, the marijuana laws are still pretty 1980’s.  Most states don’t have mandatory jail time for misdemeanor marijuana possession like we do.  This can often be pretty intimidating for an out-of-state traveler.  What do you think about our state’s drug laws?  Feel free to share you marijuana law horror story in the comment section below.  (List your name as anonymous.)

It is unthinkable that a modern democracy would act the way that Australia did in the handling of the Schapelle Corby case. Rather than help provide evidence to the Corby defense team, the government concealed the fact that there were active criminal syndicates smuggling drugs through the baggage of Australian airports.  In an earlier post, I mentioned that there was a new documentary coming out on the subject. That documentary has been released, and is available online. The Expendable Project also released a 619-page dossier outlining the defense of Schapelle. But first lets talk about the documentary. You really can’t watch 5 minutes without getting hooked. The documentary explains that the trial of Schapelle Corby was little more than a “show” trial, and that the judge that convicted her had not acquitted a single person in over 500 cases. Additionally, the documentary explains how the Australian government was complicit by covering up the evidence that drug traffickers use tourists to unwittingly transport drugs within Australia. The documentary includes an interview with an Australian couple that also arrived in Bali with marijuana in their bags that wasn’t theirs. Unbelievably, the couple explained that when they called the Australian Consulate General, they were told to NOT report the matter to the Indonesian authorities under any circumstances, and to just get rid of the drugs as soon as possible. See the video below:

Also, the Expendable Project released a dossier of evidence proving Schapelle Corby’s innocence. The well-researched packet contains valuable facts and helpful infographics to help people understand the case. See for example, the dossier asks why anyone would want to smuggle 10 pounds of marijuana into Indonesia in the first place. The dossier cites a United Nation report showing the relative price of street drugs in different nations. In Australia, marijuana sells for $15 to $31 per gram, while in Indonesia, the same drug costs 20 to 30 cents per gram. The dossier explains that the airport security in Australia was so slack that the Australian authorities were likely scared to even discuss it because they did not want to reveal how vulnerable the nation was to terrorists attacks.

When is it appropriate for nations to try to fight for the rights of its citizens? Unfortunately, politics comes into play. When Corby was convicted, the Australians did not want to offend Indonesia which is the most populated Muslim country in the world. In the Amanda Knox case, we saw the United States slow to speak out against the injustices in the Italian criminal justice system. This was due largely to the fact that Italy is a powerful ally with troops fighting in Afghanistan.

It seems like momentum is building and more people are starting to take a look at this injustice.  What do you think about this case?

 

 

What are the dangers of looking for a DUI lawyer on the internet?

There are several websites that pretend to be law firms, and take all the information you give them and broadcast it all over the internet.  For example “google” the phrase “dui lawyer” in your town. Most likely you will see the website www.1800duilaws.com or one of its affiliated sites.  What happens to the confidential information that you provide the site?  I did a test to find out.  I googled the phrase “Spokane dui lawyer” and came across the site www.1800duilaws.com, and typed in some very sensitive information about my “case”.  I conducted the experiment from a coffee shop in north Spokane.  About 5 minutes after I entered the details of my “Spokane DUI case”, the comment I had entered into the site 1800duilaws.com came back to me in the form of a spam email to my law firm email account.   (I am not sure how I got on their email list, but I am sure that lawyers all over Washington received the same email.)  Basically, the site 1800duilaws.com invites lawyers to contact the person who needs a DUI lawyer, and they eventually try to sell the referrals to the lawyers.  Below is the email that I received.

 

The websites view DUI suspects as a commodity, and then “flip” the clients to individuals lawyers for a fee. The problem is that the site doesn’t even alert people that the information will be shared. The lawyers who receive this information aren’t even necessarily DUI lawyers. These emails are broadcast all over the state. I receive about 10 or 12 emails per week from towns and cities all over. Many of the lawyers could be friends, neighbors, or relatives of the DUI suspect, and the lawyers are under no obligation to keep the information confidential. In Washington state, it is not uncommon for a lawyer to defend DUI cases in the county district courts, but to work as a part-time prosecutor in the local city or municipal courts. I have never done this, but the bar association does allow that. It is possible that a DUI suspect could have his or her DUI case information sent directly to the city prosecutor’s email inbox.

When I conducted the experiment in north Spokane, I encountered many fake websites pretending to be DUI law firms.  One other site worth mentioning is the fictitious “Johnson Law Firm”.  This “DUI law firm” is mysteriously located at the “147 S Orange street” all over America. As we can see from the adjacent photograph, the “dui law firm” is located at 147 S Orange St in Republic, WA, Okanogan, WA, and Colville WA. It is also located at 147 S Orange St in Topeka Kansas, and also at 147 S Orange St, in Topeka, Illinois.  (Yeah, I didn’t know there was a Topeka, Illinois either.)  Basically, there are webpages for fake DUI law firms in about 40,000 American cities.  There are about 244 such dui law firms in Washington State, including a law firm at “147 S Orange St” in Addy, Northport, Tonasket, Chewelah, Brewster, Bridgeport, Springdale, Oroville, Kettle Falls, Twisp, Winthrop, Marcus, Valley, Loon Lake, Omak, Peteros, etc. All of the websites have the same street address, the same photo of “Mr. Johnson”, and the same testimonial about what a great DUI defense lawyer the guy is.

So naturally I was curious about this “law firm”, and so I called the 1-800 number. My plan was to tell them that I was on my way over to see Mr. Johnson, and I was lost, and was trying to find this 147 S Orange street address in Colville, Washington. When I called the number, the phone rang to some overseas call center, and the man who answered the phone didn’t speak the greatest English. He did seem earnest enough, so rather than give him a hard time with lots of questions, I just let him take down my contact information. I left the number for one of my tracfones. The next day I got a couple calls and emails from a bunch of lawyers, some of whom I knew.  I then revealed my real name, and told them I was just screwing around, and that they shouldn’t pay the referral fee.  The lawyers had signed up for the referrals but didn’t seem to know where exactly the referrals were coming from.  They didn’t know who Mr. Johnson was.

DUI work can be complicated, and there is a lot a person needs to know to do a DUI jury trial, or to try to suppress the breath test, or to fight to keep a person’s driver’s license.   The work is very technical, and using these sites, a person might find a skilled lawyer or they might not. The danger of these websites is that they simply refer the cases to any lawyer who is willing to pay the referral fees.

Writers Note 2/21/12:  I received a comment criticizing this post for its insensitivity to people with HIV.  I was trying to reveal how much sensitive date could be revealed here, not to make light of the situation or exploit the shock value of this health condition.  I apologize for not handling this in a more sensitive manner.  Also, I should note that the company no longer includes case “comments” in their email blast to all the lawyers.  However, the company still sends out everyone’s name and the city they are from.

Do you think you have the right to refuse a DUI breath test?  More and more, the police are obtaining search warrants for blood sample, and literally pinning people down to obtain their evidence. Every DUI lawyer is accustomed to getting the 2 a.m. call.  A client is arrested and at the jail, and wants to know whether to take the breath test. This is the standard advice that lawyers give: Take the breath test, but don’t answer any questions the officer asks.  However, in the last two years, the decision has become more complicated. Across the country, police have greater powers to take a blood sample by force.

In Washington State, the case that approves of blood tests by force was Seattle v. St. John.  In that case the Washington State Supreme Court explained that just because a suspect is told (in the Implied Consent Warnings) that he can refuse a test, doesn’t mean that the police cannot request a search warrant to compel a test of the suspects blood.  Prior to this court decision, it was thought by some that a DUI suspect could refuse a breath or blood test and the only consequence would be the suspension of the driver’s license.

Although we haven’t seen it in Washington so much, across the nation, police departments are promoting “no refusal” weekends, where everyone who refuses a blood test will simply be subjected to a blood test by search warrant.   For example, my friend Clifford Swayze, who is an Austin Texas DUI lawyer, informed me about the Texas no refusal weekends” where the police will have a judge on call, all weekend, ready to issue search warrants for blood sample at all hours of the night.  Likewise in Atlanta, Georgia, two local police agencies have developed a policy whereby all suspects who refuse a test will face a request for a search warrant.  Other states, such as Montana, have changed their DUI statutes to make it clear that judges can sign warrants for blood draws.

How does a search warrant for a blood sample work?  Well the paperwork looks much like any other search warrant.  There is an affidavit that is filled out by the police that spells out the probable cause the police have to think that a person is intoxicated.  The judge then issues the warrant.  Sometimes this paperwork is presented to the judge in person.  Other times it is done telephonically.  The officer than takes the suspect to a hospital or clinic where a phlebotomist or blood tech takes the sample.  A person can be pinned down, and the sample can be taken by force if need be.  The possibility of a blood search warrant is something that every DUI lawyer should discuss with each suspect when they call for advice.

Some Native-Americans have issues with autopsies for deceased tribal members.  Although death rituals and burial practices vary from tribe to tribe, I have heard this concern raised a lot in my work as a lawyer, and in my previous work as a coroner.  A new case from Pierce County has addressed the rights of family members to stop autopsies on cultural grounds.   The case involved an orthodox Jewish man, but the same legal principals could be applied to Native Americans or other cultural groups who oppose autopsies on cultural grounds.

Factual background of Pierce County case

Here is a little background on the Pierce County case:  Dr. Brian Grobois, of New York, took a trip to Washington State, and attempted a day hike in Mount Rainier National Park on December 11^th, 2011.  He died of hypothermia.  When his body was located, he was then transported to the office of Dr. Thomas Clark, the Pierce County Medical Examiner.  Dr. Grobois’ family explained that they didn’t want an invasive autopsy performed because the family is of the Orthodox Jewish faith.   When it appeared that the medical examiner was still going to proceed, the deceased’s wife hired a lawyer to seek to prohibit an autopsy.

Legal procedures involved

The lawyer Dr. Grobois’s widow filed a lawsuit seeking an injunction.  The lawyer attached a declaration by a local Washington Rabbi who explained the religious and cultural reasons why an autopsy should not be done.  The suit was filed on December 14^th at around 1 p.m., and an ex parte order was signed about 90 minutes later.  The court order prohibited the autopsy until a hearing could be held the next day at 3 p.m.  The judge who signed the order was Commissioner Mark Gelman.   The case was continued until the next day, and the attorney for the medical examiner wrote a lengthy legal memorandum citing the powers of coroners and medical examiners.  On December 16^th, Judge Brian Tollefson ruled against the medical examiner, and ordered the body to be returned.  No appeal was filed.

How this case might apply to Native Americans.

I ordered a copy of the court file in this case, and took a close look at it.  The plaintiff’s lawyer had a rabbi draft a declaration regarding religious practices.  The rabbi sited Deuteronomy 21:23 and 12:23, but not a lot of sources or citations to other religious texts were needed to stop the autopsy in this case.  It seems to me that other cultural groups (including Native Americans) could bring a similar case in a court in Washington State.  A plaintiff would want to track down cultural leaders to explain the issues with autopsies in as much detail as possible.  To prevent an autopsy, the plaintiff needs to make it clear that they are acting out of cultural beliefs, not just an individual views or preferences on the subject of autopsies.

The balancing test

Although it is not really clear from the record in Grobois v. Pierce County, a superior court in Washington will do a balancing test when faced with a request for an injunction.  In other words, the judge will balance why the pathologist feels he needs an autopsy versus why the family is opposed to it.  Was there suspicion of foul play?  Is the cause of death apparent without an autopsy?  Is the family member opposing the autopsy a suspect?

Death investigations in Washington.

Here is how the death investigation system works in Washington State.  If a person dies unexpectedly outside the care of a physician, the county coroner (or medical examiner) has jurisdiction to investigate the cause of death.   In metropolitan counties like Spokane, King and Pierce County, the county commissioners appoint a “medical examiner” to perform this function.  The medical examiner is a board certified forensic pathologist.  However, in mid-size counties like Stevens County, Yakima County, Grant County, etc., an elected coroner conducts death investigations.  These coronors might by retired nurses, retired police detectives etc, but they are not usually doctors.  In counties with populations under 40 thousand people, the job of coroner falls on the elected prosecutor.  In these counties (such as Ferry, Okanogan, Lincoln, etc) the elected prosecutor might attend a class or two, but more extensive formal training is not too common.  In these counties, the coroner investigates the death, but sends the bodies down to forensic pathologist for the actual autopsy.  For example, the Ferry County and Okanogan coroner contract with Dr. Gina Fino of Wenatchee  In Stevens and Lincoln counties, the bodies are sent to Dr. Sally Aiken or Dr. John Howard of Spokane.  There is a reason that it is important to know how the system works in different areas.  A party seeking an injunction needs to know who to serve, and needs to act fast.

The nature of an autopsy

While we often think of an autopsy as the cutting open of a body, the term “autopsy” simply means to examine the body.  However, in cases of unattended or suspicious deaths, usually the autopsy means a full examination.  In such an examination the brain is removed and dissected, and the internal organs are removed and weighed.  Samples are taken and viewed microscopically, and often sent for tests.  The parts are them put back together and the torso is sewn back up.  I had the opportunity to observe such an autopsy at Holly Family Hospital once in Spokane.  It is not pleasant to watch, of course, but the body is treated with respect and care.  Sometimes a forensic pathologist is able to tell the cause of death and sometimes not.   Sometimes an autopsy yields surprising results.  On occasion, a person who takes his or her own life will be found to have had a brain tumor that was causing the depression.  This is the type of thing that families like to know.  Many of the unattended deaths in this country are due to strokes or heart attacks.  It is possible to do a limited autopsy to address the cultural concerns or traditions of groups such a Native Americans or Orthodox Jews.  For example, Judge Tollefson did allow the Pierce County Medical Examiner to do an x-ray of Mr. Grobois.   I can recall that years ago the Spokane County Coronor would authorize such limited autopsies for Native Americans.

To obtain an injunction a person needs to find an attorney that can work fast.  When I have head to seek an injunction in the past, it usually means working all day and night to prepare the legal paperwork, and sometimes contacting a judge after hours.

Marijuana laws in the U.S. are so complex, so contradictory, at at some times so baffling, that lawyers love to write about the subject.  Since I started my blog 3 years ago, the subject of marijuana laws has been a frequent topic.  We have discussed the “green tongue” phenomenon, the science of “marijuana dui“, the taxation,  what not to say when you are stopped, why it sucks to go to court for marijuana possession, what to do if you are caught at the border with marijuana, and attempts to reform the laws, and I-502.  Geesh, thats kind of a lot.  But I am not the only one.  Here is a list of 10 of the best marijuana law-bloggers in the 50 states.  They have great stuff, so go check out their sites.  (They are in no particular order – they are all good.)

1.   New Jersey Marijuana Blog.  Jef Henninger takes on New Jersey marijuana laws and explains the fight to more narrowly construe the state’s school zone enhancements, and the battle to prohibit “expert” witnesses from telling the jury that their “expert” opinion is that the defendant is guilty.

2.  Rose Law Group Blog. The staff at Rose Law Group attempts to make sense of the byzantine legal structure of medical marijuana in Arizona while the state wrangles with threats from the federal government.

3.   L.A.’s Dopest Attorney.  Fresh out of Harvard, lawyer Allison Margolin shared her views on the drug war, pushy DA’s, and various celebrities.  We are still waiting for her to update her blog though.

4.  Rose Law Texas.  Jeremy Rosenthal offers thoughtful, in depth, legal explanations on how marijuana laws work in Texas.  When several people are in a car, and marijuana is on the floor, it is always a gray area as to who “possesses” it, and Jeremy has a good post on that subject.

5.   Philadelphia Criminal Law Blog.  Attorney Brian Zeiger has a nice collection of posts on marijuana in a question-and-answer format, including the question all lawyers get about the defendant who skipped town on a pot charge, and then needs advice on what to do.

6.   Paul C. Youngs Blog.  Paul has blogged on the efforts by the IRS to remove any business expenses as tax deductible.  Additionally, he has commented on  the fairly liberal marijuana policies of Ann Arbor Michigan compared to the rest of the state.  Sound like Seattle anyone?

7.   Sammis Law Blog.  The Sammis law firm covers the efforts toward decriminalization of medical marijuana in Florida.  A 3/5th margin of the legislature is required to get the the measure on the ballot.  Polls show broad support for medical marijuana, and Florida might be joining the 17 other states in the US that recognize it.

8.   The Marijuana Lawyer Blog.   This blog is written by the Law Office of Glew and Kim of California.  They have written lately of the efforts by state governors to have the DEA re-classify marijuana from being a Schedule I to a Schedule II drug, thus permitting the drug for medicinal purposes.

9.   Criminal Attorney St Petersburg Blog. Attorney Melinda Morris takes a look at criminal issues in Florida including a trend among teens in the Tampa Bay area to adorn themselves with the hose of a water pipe in the form of a bracelet.

10.  Ambrose Law Group Blog. Attorneys from this law firm tackle the subject of canine “sniff” searches, the disturbing trends on marijuana arrests, and the loss of housing subsidies by medical cannabis patients.

What are your favorite blogs?  Let me know what I have missed, and maybe I will include them in 2013.