2017 | The Law Office of Chris Van Vechten

The Need To Pass a law to Require Prosecutors To Disclose Information from Incentivized Informants

May 21, 2017/in Blog Posts /by Law Office of Chris Van Vechten

Last year I represented an individual who was charged with 5 counts of drug dealing primarily based on evidence derived from a paid informant working with the Tacoma Police Department. The evidence against my client was so connected to said informant that we were not permitted to see any of the evidence against us by the prosecutors under threat of “ending all negotiations” because by revealing the audio or video evidence, the “asset to law enforcement” – we were told – would be lost. My client bravely defied the State and after six months of delays we were finally given information concerning the informant and the investigation of my client’s case and what we learned was horrifying.

First, the informant had died of a drug overdose just 4 days after my client was arraigned. This meant that much of the evidence against my client was not admissible per chain of custody, Confrontation Clause, hearsay and other constitutional and evidentiary issues.

Second, the informant had been charged with Second Degree Child Rape 6 years prior and in her psychosexual evaluation had claimed not to use drugs. The fact that she was working for TPD in that capacity went to her credibility (as did the subsequent drug overdose).

Third, despite being convicted of a serious felony involving children (though it was not ultimately plead as a sex crime but rather Second Degree Assault) the informant in question got herself a job at L&I working as a Spanish interpreter. She eventually plead guilty to defrauding L&I out of more than $34,000 by filing claims for interpreter services for people who did not in fact exist. Less than a year after pleading guilty to this, she became a paid informant for the Tacoma Police Department. Since she had already exhibited a history of lying for cash from the government, these were not minor details.

Fourth and most concerning, there was evidence to suggest that the informant may have simultaneously been working as a Spanish interpreter for private defense attorneys whilst concurrently working as an informant for TPD, suggesting the possibility that law enforcement was using our own assets against us in violation of our clients’ rights to attorney-client confidentiality. (although admittedly the evidence was limited and establishing a clear timeline for when she stopped working as an interpreter was not easy).

Ultimately, however, none of the aforementioned resulted in the case being dismissed for my client because – the Court ruled – there was no clear duty to disclose any of this to defense counsel and no evidence of any harm to the client because the client had yet to plead guilty or be convicted by a jury.

False testimony from incentivized witnesses is a leading cause of wrongful conviction in capital cases across the nation. Out of the 349 DNA based exonerations in the US, 17% involved an incentivized witness. Washington has 10 documented exoneration cases that involved the use of incentivized testimony. This will continue unless laws to protect the innocent are put in place. The system depends on honest prosecution but even honest prosecutors won’t do something unless they’re required by law to do it. That’s why we need to create an obligation to disclose information about paid informants to hold the State and the system accountable.

Senate Bill 5038 is an attempt to infuse some accountability into the process of using paid informants by requiring prosecutors to disclose certain information about informants prior to trial to defense counsel. At present, the bill has sponsorship from State Senators: Padden, Pedersen, Kuderer, Darneille, Frockt and Angel, but they and other Senators and members of the State House need to hear support for the legislation from the voters.

You can learn who your legislators are and subsequently contact them regarding your support for this important legislation here, but above all, voters who want to ensure honest due process need to contact Speaker of the House Frank Chopp, which can be done here.

In all honesty, this law will not do enough, but it’s a start. I am therefore asking the general public to please help the Law Office of Chris Van Vechten acquire the statutory tools necessary to better protect the innocent and ensure fairness for the rest.

CONVICTED ON A TECHNICALITY: the manipulations of the law to maximize consequences to minor offenders

May 1, 2017/in Blog Posts /by Law Office of Chris Van Vechten

One of the great failures of the criminal justice system was the Sentence Reform Act, a piece of legislation designed to promote consistency and fairness in the criminal justice system by restraining the power of judges without taking any steps to restrain prosecutors and police. The basis of the SRA is the concept that sentence ranges should be determined based on the seriousness of the present offense (as determined by statute, rather than the actual facts of the case) combined with the number of prior felony convictions (although, misdemeanor convictions increasingly are factored into felony offender scores).

In short, the more felony convictions, the longer the potential sentence upon conviction. Generally speaking, the harsher a potential sentence may be, the less likely a case is to go to trial and the more likely a defendant is to enter into a plea agreement (regardless of their innocence or guilt). Because many prosecutors are poor trial attorneys, some have adopted strategies to maximize the potential cost of asserting one’s right to trial to discourage defendants from asserting their rights to a trial by jury.

The following is a short list of some of the arguably unjust ways prosecutors seek to “pack felonies” into a defendant’s offender score by “up-charging” gross misdemeanors into felonies.

BURGLARY

Burglary is arguably the most abused charge in the Prosecutor’s arsenal. It is a class B felony that carries with it a maximum sentence of 10 years in prison and in some states it is a strike offense (as in, “three strikes, you’re out” = life in prison).

Yet an alarming number of burglaries charged are really just shoplifting from Walmart. This is because burglary is defined as unlawfully entering a building with the intent to commit a crime against a person or property therein. So if someone was banned from Walmart for life because he shoplifted a Seahawks t-shirt, and came back within the next 99 years to do it again, they can be charged with burglary, transforming a petty thief into a convicted felon – with all the personal and societal consequences such a charge carries.

But burglary doesn’t stop there, because you can be charged with burglarizing your own house. In fact, Chris Van Vechten once defended an individual charged with burglary because he entered his own house in violation of a no contact order at the request of the protected party. The Defendant did this because the protected party – his wife – needed to go to work and she needed someone to babysit their child, a 4 year-old quadriplegic child suffering from cerebral palsy.

Chris firmly believes one cannot be convicted of burglary merely by entering a home in violation of court order, but the issue remains unresolved by our courts and some prosecutors charge such violations as burglaries to maximize offender scores.

BAIL JUMPING

If Burglary is the most abused charge, bail jumping is probably the most used. For practical purposes, an over simplification of bail jumping is merely failing to show up to court when ordered to do so. You don’t need to actually be out on “bail” to be guilty of bail jumping.

There are two main defenses to bail jumping: (1) The Defendant did not know they were required to appear; & (2) “uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.” RCW 9A.76.170.

The “uncontrollable circumstances” defense is where the charge gets abused. The pattern jury instruction definition of “uncontrollable circumstance” is fairly narrow, arguably excluding car trouble and there is case law expressly excluding any illness as a defense unless the illness progressed to the point of hospitalization. See WPIC 19.17 and State v Fredrick, 123 Wn.App. 347, 352, 97 P.3d 47 (2004). Furthermore, you can be charged with bail jumping because you were in jail in another jurisdiction when you were supposed to appear at the scheduled hearing. The prosecutor’s argument for this is that it’s the defendant’s fault for getting arrested when they knew they had a court date. Juries don’t like this argument, and skilled defense attorneys can blow it out of the water, but the point of filing the additional charge is to increase the risk of asserting Constitutional rights against the State.

ROBBERY

This is an oldey but a goody for prosecutors. “Robbery” is defined as unlawfully taking personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. RCW 9A.56.190. Despite what appears as a reasonable definition on the surface, within prison culture “robbery” is often referred to as “shoplifting with a shove.”

Chris Van Vechten once defended a client who was detained by Goodwill security after she attempted to shoplift a shirt by wearing it out of the store underneath some other garments. The officer grabbed her, and she attempted to break free of the grasp while still wearing the shirt. By doing so, she committed “robbery” by using “force” (aka, running while wearing the shirt).

The most egregious use of robbery Chris Van Vechten ever saw was a homeless lady who purchased a hamburger from Jack in the Box. As she counted out her coins at the cash register to pay, it was revealed that she was 18 cents short. No one volunteered to help her shore up the difference and so she snatched the burger from the counter and fled the building. In so doing, she unlawfully took property in the presence of another by the use of force and got charged with Robbery.

Like Burglary, Robbery is a Class B felony, but in Washington it is also a strike offense, meaning someone could be sentenced to life in prison because they ran off with a hamburger that they were 18 cents short on.

IDENTITY THEFT/CRIMINAL IMPERSONATION

In recent years, some prosecutor offices have begun abusing these Class C felonies to increase offender scores.

ID Theft occurs when someone knowingly obtains, possess, uses, or transfers a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime. RCW 9.35.020

“Means of Identification” is exceptionally broads and includes means:

information or an item that is not describing finances or credit but is personal to or identifiable with an individual or other person, including: A current or former name of the person, telephone number, an electronic address, or identifier of the individual or a member of his or her family, including the ancestor of the person; information relating to a change in name, address, telephone number, or electronic address or identifier of the individual or his or her family; a social security, driver’s license, or tax identification number of the individual or a member of his or her family; and other information that could be used to identify the person, including unique biometric data.

See RCW 9.35.005(3)

Felony Criminal Impersonation occurs when someone: “assumes a false identity and does an act in his or her assumed character with intent to defraud another or for any other unlawful purpose.” RCW 9A.60.040

Over the past year, prosecutors have been charging defendants who give a false name to police officers with Identity Theft and Criminal Impersonation. It is a crime to give a false statement to a police officer – and it constitutes a gross misdemeanor.

People who get stopped for driving with a suspended license will sometime lie about who they are by giving the name of someone else they think has an active driver’s license. Historically, this has been charged as a gross misdemeanor, but prosecutors have begun charging them as felonies.

Chris Van Vechten does not believe someone assumes a false identity merely by giving a false name, and has successfully fought prosecutors on this, but unfortunately Identity Theft is both extremely broad in its scope and the Courts have thus far failed to restrain prosecutors to what was surely the intent of the Legislature.

DON’T LET YOURSELF BE CONVICTED ON A TECHNICALITY.

If it appears as though the prosecutor is up-charging you, it’s probably because he/she is afraid to take your case to trial. Get yourself an attorney with courage and resolve yourself to resist.

The New Rationale for Why the Police Don’t Need a Warrant to Make You Blow.

January 30, 2017/in Blog Posts /by Law Office of Chris Van Vechten

In 2016, the Washington Supreme Court ruled 7 to 1 in the Baird decision that Washington’s “implied consent statute does not authorize a warrantless search, and a driver has no constitutional right to refuse a breath test because such a search falls under the search incident to arrest exception to the warrant requirement.”

The Court went on to say that “although the implied consent statute gives a driver a statutory right to refuse the test, by exercising the privilege to drive, a driver consents to admitting that refusal to take the breath test into evidence. Accordingly, we hold that a driver’s refusal is admissible as evidence of guilt under Washington’s implied consent law.”

Perhaps the most significant portion of this decision is the Court’s conclusion that search incident to arrest justifies the testing of an arrestee’s blood alcohol content via a breathalyzer.

Previously, the understood justification for this warrantless search was the exigent circumstances exception to a warrant. Basically, the rationale was that because the evidence of intoxication is evaporating in front of the officer, there may not be sufficient time to secure a warrant before the evidence of impairment is lost. That logic, which controlled for decades, was turned on its head by the United States Supreme Court in Missouri v. McNeely. The issue in McNeely was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. The Court held that it does not and that under the Fourth Amendment, exigency must be determined case by case based on the totality of the circumstances.

While McNeely had no impact on license suspensions in Washington State for refusal to blow into a breathalyzer, challenge to the admissibility of refusal evidence in subsequent criminal prosecution gained momentum in King County District Court, leading to review by the Washington Supreme Court.

However, before the Washington Supreme Court could review the challenge, the US Supreme Court issued a ruling in Birchfield v. North Dakota. Birchfield held that “The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.” It further went on to explain that this was justified per the search-incident-to arrest exception to the warrant requirement.

Search-Incident-to-Arrest has been an understood exception to a warrant requirement for decades, justified “for the twin purposes of finding weapons the arrestee might use or evidence the arrestee might destroy.” Chimel v. California. In Washington, a warrantless search of a person’s person is considered a reasonable search as part of the arrest because such a search presumes exigencies and is justified as part of the arrest – therefore dispensing with any need to determine whether there were reasonable concerns for officer safety or evidence preservation concerns. See State v MacDicken (2014).

However, in Washington State, which guarantees greater privacy rights to its residents than the Fourth Amendment provides, it had been understood that the search of a person’s person was limited to inanimate things. Writing as the sole dissent in Baird, Justice Gordon McCloud wrote that:

A search incident to arrest is one of those “`carefully drawn and jealously guarded exceptions.'” Id. (quoting Bravo Ortega, 177 Wn.2d at 122). It certainly extends to a person and his or effects. Id. But we have never applied it to bodily contents, that is, to something inside the person, like breath or blood. Instead, we have applied this exception to things— like a purse(Byrd), a jacket (State v. Parker, 139 Wn.2d 486, 987 P.2d 73 (1999)), or a car (State v. Ringer, 100 Wn.2d 686, 697, 674 P.2d 1240 (1983), overruled by State v. Stroud,106 Wn.2d 144, 151-52, 720 P.2d 436 (1986)). Bodily constituents like the breath at issue in these cases are different. They are certainly shielded by the state constitutional right to privacy. In Garcia-Salgado, for example, we held that taking a cheek swab from an arrestee constitutes a search and that it cannot be accomplished without appropriate authority of law. 170 Wn.2d at 184. To be sure, we did not address the search incident to arrest exception there. But we made clear that we accord great respect to one’s bodily integrity. Id. at 186-88. In fact, we held that where law enforcement intrusion into “`bodily integrity'” (as opposed to inanimate things) was concerned, we required a higher showing to justify the intrusion than is ordinarily required. Id. at 184 (quoting Schmerber, 384 U.S. at 617).

It’s unclear exactly how far into a person’s person police can now search without a warrant. Birchfield made clear that warrantless blood draws are not constitutional, but breath tests are. Would X-rays be permissible? What about thermometers? What about a cheek swab, is that now permissible under search incident to arrest? Most importantly – because the Washington Supreme Court failed in Baird to adopt search-incident-to-arrest as the justification for a warrantless search of an arrestee’s breath expressly as a permissible exception under Article 1, Section 7, of the Washington State Constitution – is the ultimate issue really even decided in Washington State?

The need to decriminalize some forms of Theft

January 13, 2017/in Blog Posts /by Law Office of Chris Van Vechten

Last year, the Law Office of Chris Van Vechten represented a 22 year old client with no prior criminal history who was charged with stealing $5.99 worth of nail polish from a Walmart in Tacoma. The client didn’t even make it out of the store before security stopped her…so the merchandise was fully recovered and presumably later sold at a profit.

It took the City more than a year before charges were filed against her (the statute of limitations is 2 years for third degree theft, which is theft of property worth less than $750). In the time subsequent, she got a job as a CNA at an assisted living community. The theft charge threatened her job, because if you are convicted of a theft crime, you cannot work with vulnerable populations (even though the mentality to steal nail polish from Walmart is dramatically different from that required to steal jewelry or medicine from a bed bound grandma).

Thus the charge not only threatened my client’s freedom, and finances but also her job – which theoretically is contrary to the rehabilitative philosophy of criminal prosecution which guides the criminal justice system.

Thankfully, we were able to persuade the prosecutor to amend the charge and allow my client to take what is called a deferred sentence (meaning, she pleads guilty to a charge, and if she pays all her fines, completes a consumer awareness class and maintains law abiding behavior for a year, the sentence will result in a dismissal of the charge.) The prosecutor did not have to do that, however. With prosecutors, it’s hit or miss. And some are really immoral.

The State Legislature has passed a law called a “compromise of misdemeanor” which basically says that if the defendant pays restitution and the victim is satisfied, the victim may sign a document expressing their satisfaction and asking the Court to dismiss the case.

When dealing with mom and pop institutions or private citizens, this is often effective. Most people just want to be repaid for the harm they incurred. But the primary victims of theft in the jurisdictions where I practice (at least the leaders for prosecution) are Walmart, Home Depot, Fred Meyers, Safeway, Winco and Kohls ….all of which expressly refuse to accept anything less than prosecution.

Combined, these six businesses represent at least 90% of all charged thefts I see in my office.

While this may reflect the desire to deter shoplifting, it doesn’t appear to work. If anything, from the Defendant’s perspective, a theft conviction makes them largely unemployable – because “thou shalt not steal” is a universal value that few employers are willing to overlook. This in turns makes subsequent thefts feel like a necessity for many clients – no matter what sentence is imposed. Some even get charged with burglary if they shoplift from the same store (or chain) twice: a class B felony with a maximum sentence of ten years in prison.

And from the community’s perspective, prosecuting someone who almost got away with $5.99 worth of nail polish is by no means cost effective. The cost of arresting and jailing her for a day, charging the case, appointing the Law Office of Chris Van Vechten as a public defender, securing a conviction and monitoring her on probation for up to two years is significantly disproportionate to the harm caused (if any, since technically no injury was incurred and no restitution can be made).

The City had to pay the Law Office – just the Law Office – $185 to represent her…that’s 30 times the value of the item she stole. And remember, Walmart recovered its merchandise. And while the court did order our client to pay some costs (approximately $150) that money will be paid in small installments over the course of a year (if it’s paid at all….statistically, there’s a great chance the client will be sent to jail for inability to pay the fine and the City will never collect.)

We wish we could say this case is an anomaly, but actually it’s not. I once defended a client accused of stealing a single aspirin from a Walgreens. According to the police, he told them he had a headache. Every winter I get half a dozen homeless clients caught trying to shoplift winter clothing. I once defended a client caught stealing 4 rolls of toilet paper valued at less than $10. Another who stole a bottle of vodka valued at less than $30. Another who tried to put some steaks into her purse and get out of Safeway. And of course cosmetics are a popular thing to shoplift from any store because they are small and easily concealable.

While nothing these people did is appropriate, it’s not really a matter of public safety so much as defending the integrity of the law. And as an attorney I get and approves of that. But the sheer cost of it all dwarfs the harm or any point our community is trying to make in prosecuting these types of cases.

So since we are at the start of a new legislative session, The Law Office of Chris Van Vechten would like to propose passing a law creating a new category of theft that constitutes an infraction and mandating that State and Municipal Prosecutors may charge select acts of theft as infractions instead of crimes.

This by no means legalizes theft. An infraction (such as a traffic ticket) carries with it a fine, but not jail, so there is no right to a public defender and no need for probation (automatic savings right there). The standard of proof is preponderance of the evidence, rather than reasonable doubt (making the prosecution’s case easier). There is no jury trial (further savings). Yet there is punishment for those who don’t pay their infractions (including license suspension which can then result in criminal charges if the defendant continues to drive.) So no one would be getting off easy here.

This is what we propose

1) If the value of the item stolen was less than $100; and

2) If the property is recovered undamaged (such as the nail polish in the aforementioned example); and

3) If the defendant has not been convicted of any species of theft once in the past 7 years.

The prosecuting attorney’s office may only charge the defendant with “unauthorized assumption of property” an infraction. If the defendant has previously been convicted or found to have committed unauthorized assumption of property within the past 7 years, they have the discretion to charge the case as a crime.

This would save the community significant money, because infractions do not result in jail time and do not require the government to provide an attorney to defend those who cannot afford representation. Yet offenders would nevertheless be held accountable, required to pay a fine, and if they failed to do so they would incur the same sort of penalties that follow failure to pay traffic infractions, which ultimately can lead to criminal charges.

It is the hope of the Law Office of Chris Van Vechten that readers of this post will be inspired to share the idea with their local and state representatives, and that they in turn will be inspired to work toward the creation of a smarter and saner criminal justice system.

The Need To Pass a law to Require Prosecutors To Disclose Information from Incentivized Informants

CONVICTED ON A TECHNICALITY: the manipulations of the law to maximize consequences to minor offenders

The New Rationale for Why the Police Don’t Need a Warrant to Make You Blow.

The need to decriminalize some forms of Theft

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