Posts Tagged ‘stevens county’

Every county prosecutor has his or her way of handling low level drug offenses. By low level offenses, I am referring to, for example, cases where the police find a baggy with a little bit of heroin residue in the back seat of a car, or perhaps a pipe with methamphetamine residue. While the possession of any amount of such drug is a felony, prosecutors typically have alternative programs for such offenses. It appears that the Stevens County Prosecutor is beginning a new diversion program that would include cases such as this. The program is not limited to low level drug offense. It also appears to include drug-related misdemeanors and driving while suspended charges. Based on early versions documentation that I received as part of a public records request, it appears the duration of the program varies from 3 to 12 months.  As part of the program, the prosecutor agrees not to file charges against an individual on the condition that he or she follows one or more of the following rules:

• Report monthly to the diversion counselor.
• Attempt to obtain employment.
• Pay restitution.
• Pay a diversion fee.
• Take random UA tests for drugs.
• Obey all laws.
• Take mental health or drug abuse classes.

How the program works, is if you complete all the requirements then you will never be charged with the offense and it does not appear on your record. It also appears that the prosecutors could offer diversion after the charge has been officially filed.  This is called a “post-filing” diversion as opposed to “pre-filing” diversion.

A sample copy of a diversion contract is attached here.  For more information, please contact our office.

An interesting judicial race is taking shape in Stevens County.  Judge Gina Tveit is defending the position of District Court Judge, to which she was appointed last year by the county commissioners.  (Her campaign site is here.) Challenging the incumbent is Spokane criminal defense lawyer Ronnie Rae who bought a home in the Loon Lake area in 2006. Driving through the county, you can see Gina Tveit signs up, but I didn’t see any for Ronnie Rae yet.  Ronnie Rae has been practicing law for 6 years and is just 32 years old (I have blogged about young candidates in the past here).  The only precedent I could find in Eastern Washington for a judicial candidate so young was 33-year-old John O. Cooney, who beat Mark Laiminger to become a Spokane District Court Judge.  But Cooney had name recognition – has dad was also named John Cooney and he was a judge too.

It seems like in judicial elections the race frequently comes down to name.  In 1990 the Chief Justice Keith Callow of Washington State, a widely respected judge who drew little controversy, was thrown off the bench by voters who chose instead a 39-year-old Charles Johnson who had never been an elected judge and who did not campaign.   Political analysts concluded that voters did not know either candidate and so they picked the one with a familiar-sounding name.  Then in 1998, some knucklehead named “Jim Foley” ran for Supreme Court and boasted of having the advantage of a name voters might mistake for Tom Foley, a former congressman and speaker of the House.  Foley beat an incumbent justice in the primary, but lost to Faith Ireland.  Ireland herself changed her name to “Ireland” from Enyeart a few years prior because it would be “easier” for people.

Let’s wait and see what happens with this judicial race in Stevens County.  Tveit is pretty popular in Stevens County, it seems like Rae will have one heck of a hill to climb.

For more on other judicial races see here.

As sure as Spring is in the air, the 2010 election races continue to take shape.  This last week, candidates for the position of District Court Judge were announced in Ferry County and Okanogan County.  Attorney Henry “Hank” Rawson announced his interest in the position opening for Okanogan District Court Judge.  Judge David Edwards announced that he is retiring and is not running for re-election.  Coverage of Hank Rawson’s announcement is in the print edition of The Omak-Chronicle and is on the KMOW site here.  Rawson’s announcement sets him to run against Rick Weber, who has been on the bench there filling in for the last couple years in District Court.   Rick Weber was the elected prosecuting attorney in Okanogan County up until 2002, when he chose not to run for re-election.  The Wenatchee-World covers the race here.  Both men have served as judges and have run campaigns in the past, and my guess is that we are not going to see a lot of fur flying.  But I guess a blogger can always hope.

In the print edition of the Ferry County View, Republic lawyer Tom Brown announced his candidacy for judge in Ferry County.  The paper doesn’t have the announcement online, but for more info you can check out his Tom Brown for Ferry County Judge site.  Brown’s site announces that his campaign manager is Ray Maycumber.  Maycumber is a popular sheriff’s deputy who was recently promoted to manager of the 911 center, and has been mentioned in earlier posts here and here.  Tom Brown currently works as a deputy prosecutor covering felony cases.  His announcement set him to challenge Lynda Eaton who has not announced her intentions.

In Stevens County, no one has announced a challenge to the sitting judge.  As you recall Gina Tveit was appointed by the Stevens County Commissioners last year to replace Pam Payne, see post.

Comings soon: more on north county prosecutor candidates.

A cougar visited Discovery Park in Seattle and made world news last weekend.  See BBC article.   The cougar was spotted by an employee in the 534-acre park.  (A square mile is 640 acres, in case you didn’t know that already.)  The animal was trapped and relocated to a more remote location.  Game agents placed a radio-tracking collar on the cat.

I found this news story funny, because the Fish and Wildlife Department has frequently taken the position that problematic cougar encounters were the result of human habitat encroachment.  In other words, Washington’s population boom led too many people to relocate to rural areas.   In the late-90’s when I worked as the prosecutor for Ferry County, I worked with the county commissioners to try to force the State to better assist rural residents in management of these cats.  When hound hunting was banned in the late 1996 (by voter initiative) it was widely predicted that there would be a large increase in cougar population in Washington.   In 1996, the Seattle-Times ran an editorial urging voters NOT to support a ban on hound hunting, warning that such a ban could lead to 10% yearly increases in cougar population similar to what happened in Oregon.  Now a cat was found just a few miles from the newspaper’s downtown offices.   Symbolism is often an important driver of political change.

The sighting of a cougar in Seattle got far more media attention then the incident last Wednesday in Stevens County where a cougar attacked a 5-year-old child.  The boy was attacked when he and his family were hiking a trail in on Abercrombie Mountain along Silver Creek in the Colville National Forest.   The boy’s mother was near him when the cougar suddenly attacked from out of a brushy area.  The woman fought off the cat, and the parents took the child about 25 miles to the hospital in Canada.  See article.  In my opinion, the mother likely saved the child’s life by her actions.  Unlike fending off bear attack, most cougar attacks are stopped by fighting back aggressively.

As to the Seattle cougar, Department of Fish and Wildlife Capt. Bill Hebner commented: “We had over 450 confirmed dog attacks on an annual basis in King County and no cougar attacks; so that should help put it into perspective.”

Am I the only one who thinks that comment sounds glib?  After all, they did close the park down for 5 days until the cougar was caught.  You can see online the great expense and effort that Fish and Wildlife put into removing this Seattle cougar.  Does the department respond with the same vigor for problem cats in inhabited areas of Eastern Washington?

In the Seattle-PI article, Capt. Hebner admitted that Department of Fish and Wildlife officials initially thought the sightings of a cougar in Seattle could be bogus.   Hebner explained that he did not believe it until he talked to a woman that had seen one.    He quizzed her on the cat’s coloration.  He said the woman’s description of the tail length was “spot-on.”    “She even described how it ran, and her description of it loping and running is exactly how a cougar would move,” Hebner said.   You really have to wonder about some of these top-level F&W guys.  What in the world else would this woman be describing if not a cougar? Could the caller really have confused that with another animal?  At 140 pounds it is 10 times the size of a house cat.  In the past, many Eastern Washington residents have complained that F&W officials in Western Washington are often dismissive of cougar fears, or stories of attacks.

The Colville City Council recently voted unanimously to go forward with a feasibility study for a new airport that would be constructed in the area of Aladdin Road in Colville. Many members of the public in Stevens County are up in arms over this due to environmental concerns. Judging by the letters to the editor and discussions with a few of the locals, the city may have a fight on their hands.

The Statesmen-Examiner reported that people living near the planned airport expressed concerns at the public meeting about the noise of a new airport. In addition the public expressed concerns about air pollution and the threat to the city aquifer. Although I have dealt with issues of ground water contamination before, I have never dealt with the subject of contamination from an airport. A lot of the letters to the editor in the Statesmen-Examiner raised some pretty serious environmental fears. One letter wrote:

The airport would be built directly over the Colville aquifer, the source of Colville’s water. Concerns were expressed that the building on this land will compromise the integrity of the aquifer. Former pilots gave personal accounts of fuel leakage and ground contamination at other airports, stating, “over time, jet fuels will even seep through concrete.”

This seemed a little far fetched to me. It seemed to me that the leakage of jet fuels would be pretty minimal, and it seemed that such fuel would be quite light, and would not permeate concrete. So I called an independent source that I know on the East Coast who works as an expert witness on the subject of ground water contamination. He is pretty sensible in his assessments of environmental threats. He told me that airports are in fact significant sources of groundwater contamination from jet fuels and solvents, and that all airports have some level of contamination associated with them. He explained that contamination comes from broken fuel lines, fueling accidents, painting stations, repair shops etc. He explained that concrete is in fact permeable. He said that the permeability of concrete is low, but even if just a small bit of contaminant permeates into the water it will violate standards.

I learned not to take drinking water for granted earlier this year. In my town, residents were forced to boil our water for three weeks when it was determined that E. coli had been found in the water. This was a little bit of an eye opener for me. But boiling water contaminated with fuels or solvents won’t help. When our water was contaminated, I wondered what small cities can do to fix the problem when they are financially unable solve the problem.

So, as to the proposed new airport in Colville, when is the proper time to consider the impact on the aquifer? Right now the city is just doing a feasibility study. Yet Stevens County residents complained about the cost of that study. Should a threshold determination be made to determine whether the airport location would be even environmentally possible? Or would the subject wait years later until an environmental impact statement is done? One question that I have is whether or not the area is an aquifer recharge area. If so, it is customary for a lot of airport functions and activities to be banned out right.

The other subject that came up in the letters to the editor was the subject of air pollution. It would be interesting to hear what an expert would say about this. Some comments by members of the public were about the severe winds in the area of the airport. Other members of the public mentioned that the area was prone to stagnant air that would allow air pollution to accumulate. Maybe the weather varies.

In the last two weeks, all the letters to the editor in the Statesman Examiner have been opposed to the new airport and the feasibility study. The Statesman Examiner typically has a policy of limiting letters to the editor to 300 words, but allowed one letter that was close to 2000 words and took about nearly ½ a page. It will be interesting to see if supporters of the airport or of the feasibility study will submit any letters to the editor this week.

Aside from any environmental concerns, some members of the public did not want the airport because it would involve the condemning of private lands. Although people tend to forget this sometimes, cities have similar powers to condemn private land for a public purpose and pay the land owner just compensation, just the state and federal governments can do. It is one thing when you are a farmer and you lose part of your land because of Interstate 90. It is another thing when your land is taken by a local city council on a project that you and the community do not think is worthwhile in the first place. In the past, city governments could vote to authorize land to be taken without any special notice to the landowner in advance. But under a new law enacted in 2007 (RCW 8.25.290) a city must send a certified letter to each landowner who might face the condemnation of his land. The notice must contain a description of the property to be taken, and must notify the land owner of the date and time of the public hearing at which time the condemner (the city) will decide whether or not to authorize the condemnation of the private land. In cases that I have defended in the past, it seems as if sometimes governments go out of their way to find an appraiser that is particularly conservative. As an attorney, I have found that hard feelings are common in these small-town condemnations because oftentimes the city council members are the friends and neighbors of the landowners. If a condemnation is fought in court, a judge decides whether the condemnation is for a public purpose, and a jury decides the amount the landowner should receive.  The lawyer for the landowner commonly seeks his or her own expert to testify as to the value.

It will be interesting to see what the feasibility study comes up with. If the study encourages the City of Colville to go forward with the airport as planned, it will more be interesting to see what comes of this issue.

My father was an engineer. He always marveled at how many bridges and aqueducts of the Roman Empire are still left standing. But he was perplexed at how many public works projects here in the U.S. are just disasters.

The Pont du Gard aqueduct was built by the Romans in approximately 19 BC. It still stands today.

But what Washington public works projects will last as long as the Pont du Gard?

This question came to mind when I started seeing a bunch of new public works projects in this area. I heard the federal government was assisting in some projects as part of an economic stimulus bill. I remember when the City of Republic had a new shop built ten years ago. It collapsed soon after it was built under the weight of a heavy snow fall. I also noticed how the newly constructed front steps of the court house have begun to crumble and have been roped off.
In Spokane in 2006 the River Park Square parking garage crumbled and allowed a vehicle to roll out and fall five stories to the ground killing someone.
What is to be done about the slipshod work of construction companies on public works projects? What public works disasters am I over looking in the area of Okanogan, Ferry, and Stevens County? Email any photos that you think I should post to steve@grahamdefense.com.

I have run into an interesting issue that I raised in court, only to have the matter settle. If anyone encounters this problem and seeks assistance, I would not mind the pro bono work.  Due to their locations, an Okanogan or Ferry County attorney could challenge the current method of selecting juries.

Under Washington Law, jurors must be selected evenly from the populations as a whole. A problem arises when State Courts conduct jury trials of Indian Defendants. The current method of drawing jurors does not reach Indian residents living on trust or allotted land. Such summonses are a form of state court civil process. Under the case of North Sea Products v. Clipper Seafood, such state civil matters are unenforceable on Indian Reservations. 92 Wn. 2d 236, 595 P.2d 939 (1979) (invalidating a state-court garnishment). Additionally, the punishments under RCW 2.36.170 for failing to report for jury duty do not apply to Indians on trust or allotted lands. RCW 37.12.010 provides that the “…state of Washington hereby obligates and binds itself to assume criminal . . . jurisdiction over Indians and Indian territory,… but such assumption of jurisdiction shall not apply to Indians when on their trust lands or allotted lands within an established Indian reservation…” Indians are 16.5% of the Okanogan county population according to the U.S. census. In Ferry County, the figure is 20%. The exclusion of this body invalidates the process.  Who comes to serve, and who does not come to serve, must be random. One case on point is Brady v. Fibreboard Corp., 71 Wn. App. 280, 857 P.2d 1094 (1993), review denied, 123 Wn.2d 1018, 871 P.2d 599 (1994). In Brady, the court of appeals reversed a jury verdict because of procedural irregularities. When several jurors on the list did not appear, plaintiff’s counsel asked why, and “the judge responded that they had never been called in.” Id. at 282. Other judges had excused the jurors, and the court of appeals reversed the verdict and explained: “The procedures used here abridge the statutory mandate of random selection. It is undisputed that the initial panel of 90 was randomly selected. However, the randomness of the panel was destroyed when 14 of the 90 were eliminated by the process employed here.” Id. at 283. Like the 14 missing jurors in Brady, many native jurors will have “never been called in.” Aside from the constitutional precepts violated, this is a violation of statute mandate reversal. “When statutory jury selection procedures are materially violated, the claimant need not show actual prejudice; rather, prejudice is presumed.” Id. at 283. One case I looked at is Taylor v. Louisiana, 419 U.S. 522 (1975). In that case, Louisiana’s method of drawing jurors to court was found to be unconstitutional. Louisiana summoned men to appear, but made women’s attendance optional or voluntary. The court in Taylor v. Louisiana visited earlier cases and explained:
A unanimous Court stated in Smith v. Texas, 311 U.S. 128, 130 (1940), that “[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” To exclude racial groups from jury service was said to be “at war with our basic concepts of a democratic society and a representative government.”

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We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S., at 155 -156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.

The court struck down a murder conviction due to the failure to compulsorily include women in jury pools. The best solution would be to ask our Federal Courts or the Colville Tribal Court to issue jury summonses to the Tribal member for the State. This procedure would render the summonses valid. Unlike a mailed state-court jury summons, a summons of a Federal Court of Tribal Court will compel attendance. It is, of course, a crime to ignore a court order or summons under Federal and Tribal law. The Federal Court clearly can enforce, or re-issue State Court process on reservations. As to the Colville Tribal Courts, their cooperation with State Court process is largely discretionary under Section 1-1-102 of their code. The Ferry County Superior Court Judge could order the Ferry County Clerk to send all on-reservation summonses to the Colville Tribal Court for compulsory lawful services under tribal law.