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The Beginning of the End of the All White Jury?

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In brief, here’s how jury selection works:

Potential jurors are assigned numbers prior to entering the courtroom. The lower your number, the more likely you are to be picked for a jury because if you are not bumped for cause or a preemptory challenge, and if there are still seats on the panel and there is no juror with a lower number ahead of you who has yet to be dismissed or accepted, the lawyers have to take you on the case.

The lawyers and the judge can dismiss anyone for cause without limitations. Cause challenges can be for medical reasons, professional reasons, and personal reasons.  Cause challenges can also be made because of expressed or apparent bias or prejudice that lead one party or both to the action to conclude you could not fairly hear the case.  In my last sex crime trial, I think a dozen jurors were dismissed for cause by personally expressing they could not be fair in such a trial or – without saying it – led everyone to feel so.

Once all the challenges for cause are made, each party to the dispute has a limited number of preemptory challenges.  In Superior Court, each side gets 6 preemptory challenges, with half as much in District or Municipal Court. Preemptory challenges, historically, could be used to bump anyone for any reason without limitation or required explanation.   Since 1986 however, there has been one exception.

Batson v. Kentucky, 476 U.S. 79 (1986), was a case in which the United States Supreme Court ruled that a prosecutor may not use of peremptory challenge in a criminal case to exclude jurors based solely on their race. Defense attorneys are thus trained that if they suspect that prosecutors are attempting to eliminate brown and black people from the jury, to make a “Batson challenge” to the prosecutor’s preemptory challenge.

In practice however, this is an awkward/difficult thing to do as a defense attorney because what effectively you are saying – on the record – is the guy who you see every day in court is a racist (or at least, using racism to mess with the jury). That might not seem like much in the age of “check your privilege” Facebook fights but many white people take this very personally – including prosecutors who believe they’re the good guys in this fight. And generally speaking, although we are adversaries, most of our conflicts are not personal.

To make things worse, historically, to defeat a Batson challenge, all a prosecutor had to do was provide a non-race-based reason for why they were removing the juror in question. It didn’t need to be a good reason, just not-race-based.

 So, for example, popular explanations prosecutors offer for why they disproportionally raise objections to people of color serving on a jury include:

  • They disproportionally express lack of faith in law enforcement or in the criminal justice system, and are therefore deemed not to be able to be fair.

 

  • They disproportionally admit that close friends or family of theirs have been arrested, and are therefore deemed to be too much of a risk to the State.

 

  • The juror’s professional life raised concerns for the prosecutor (in general, prosecutors are afraid to have teachers and pastors/spiritual leaders serve on a jury, regardless of their race).

 

  • The juror in question failed to make eye contact with the prosecutor or made too much eye contact.  They kept their arms folded in such a way that they led the prosecutor to believe they could not be fair, etc.

Historically, all of these explanations have been sufficient to survive a Batson challenge. The end result of this and other problems with jury selection is that many people of color get tried by all white juries, even in comparatively diverse communities like Tacoma.

WHY IS THIS A PROBLEM

It is no secret that the criminal justice system disproportionately affects people of color, many of whom are innocent, with many more being less guilty than the State alleges.  Many want their day in court, but are convinced they will not get a fair shot when they get there.

As a white attorney, I cannot express to readers what it is like when your thirty-something black or brown client watches the last minority in the jury pool get bumped, in favor of a panel comprised of twelve housewives, state employees and retired Boeing engineers…all of whom are white.  You can feel the energy go out of them, like they already lost, and at that point your job as the defense attorney is to get your client’s head up and focus on the task ahead.  (For the record, I have repeatedly secured “not guilty” verdicts for people of color before all white juries).

This presents a problem that cannot be corrected by putting more minorities on the bench or in the prosecutor’s office.

WHAT CAN BE DONE

The good news is that on April 5, 2018, the Washington Supreme Court adopted General Rule 37 that is going to make it significantly more difficult for all attorneys to bump people of color on preemptory challenges by making several of the previous arguments prosecutors have made to exclude minority jurors under Batson challenges “presumptively invalid.” Also, the new standard requires that the Court “evaluate the reasons given to justify the preemptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the preemptory challenge is denied. The court need not find purposeful discrimination to deny the preemptory challenge.” GR 37(e)

This is a badass rule that I believe will go a long way to effect my side’s cause, but it’s not enough.

We also need to address the way courts call people for jury duty. Most jurisdictions pull jurors from lists gathered by driver licenses and voter registrations and this – by default – results in more economically stable and older people being called for jury duty (and you can guess what color they are).

To make matters worse, in the name of “judicial economy” courts tend to call the exact same people for jury duty again and again. This is because if you know that someone showed up once, you can presume they – if called – will show up again. That means that fewer notices for jury duty need to be sent out to get a panel to choose from, because you can predict who will appear. However, because minorities are disproportionately excluded from jury duty, they don’t show up again as often, which means the jury pool is always disproportionally white.

My wife, white, has been called for jury duty 5 times in Tacoma and was picked twice I think (all before I became a defense attorney, now she always gets excused). One person I know (also white) claims to have been called for jury duty 9 times in the past 30 years. I doubt you could find anyone of color who has been called for jury duty 9 times.

Most importantly, if called to jury duty, you need to show up.  We especially need young people to show up (as all my interns have promised they would), regardless of their race. But yes, if you identify as a racial minority and fail to respond to jury duty, that decision may be especially devastating for someone who may be risking a lot to assert their innocence.

But again, everyone should show up. Even if you suspect you would be bumped on a preemptory challenge, remember – those are limited, and if the other side has to use one on you, that means that someone else they wouldn’t have wanted either is likely to get on.

The truth is, despite the wonderful step taken recently by our Supreme Court, the systemic removal of people of color from juries over many generations will likely continue to frustrate efforts to diversify the racial makeup of our juries.  But what we might be witnessing today is the beginning of the end.

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

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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

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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.

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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

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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.

Theft in the Third Degree

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Over the years, I’ve had the opportunity to represent many wonderful people in horrible situations, and too many of them I’ve represented multiple times.  When I look back on the criminal history of these frequent flyers, it’s clear to me what criminal conviction turned them from law-abiding persons who made a mistake into life-long criminals.  Surprisingly, it’s not the drug charge, or the DUI, nor is it the petty domestic violence conviction.  Society is ready to forgive those who have struggled with addiction or anger problems, but theft is a biblical crime that is universally despised and carries with it life-long consequences in addition to serious stigmas.  

The subcategory of Third Degree Theft is a gross misdemeanor which carries with it a maximum penalty of 364 days in jail and a $5000 fine.  It is defined as “theft of property or services which… does not exceed seven hundred fifty dollars in value.”  See RCW 9A.56.050.  At least 90% of theft three charges concern alleged shoplifting.

COLLATERAL CONSEQUENCES

In addition to jail and fines, those convicted of Theft in the Third Degree can be expected to pay restitution to the victim and attend questionable “consumer awareness classes.” It is not uncommon for courts to impose community service hours also.

Those convicted of shop-lifting will be formally trespassed from the store where the alleged crime transpired.  If the victim store was a chain like Walmart, the defendant can expect to be banned from all Walmart properties nationwide and if they return and commit a subsequent theft three, they could be charged with Burglary – a class B felony that carries with it a maximum sentence of 10 years in prison and a $20,000 fine.  For low-income people living in communities where superstores like Walmart are the only game in town for groceries and pharmaceuticals, this exclusion can be tantamount to a death sentence.   

What is particularly damaging about Theft in the Third Degree is that, regardless of the scale of the theft, there are serious professional consequences.

One former client of mine was charged with shoplifting a single bottle of nail polish valued at $5.99 from Walmart.  She was 22 years old at the time, and had no prior criminal history.  It took the government more than a year to formally bring charges against her and in the mean time she got a job as a CNA at a Tacoma area assisted living community while earning a degree part-time.

The charge threatened her job, because those convicted of theft cannot work with “vulnerable populations” such as the elderly (even though the mentality to steal nail polish from Walmart is dramatically different from that required to steal jewelry or medicine from bed-bound grandparents).  Had she been convicted, she would have lost her CNA license, and future academic or professional opportunities would have been delayed if not derailed.  This is dramatically disproportionate to the offense.

Another consequence of conviction is that those convicted of Theft in the Third Degree can’t act as executors of estates, potentially complicating wills executed prior to the conviction.

Finally, one major consequence to being convicted of any category of theft is that it is a crime of dishonesty.  See Washington Evidence Rule 609. This means that if you subsequently are a party to an action in court again – be it criminal or civil – and you take the stand to testify – your theft conviction can be used to impeach your credibility for at least the subsequent 10 years.  This is true regardless of the nature of the legal action.  This could be used against you in a child custody battle or a personal injury lawsuit.

WHAT IF I’M CHARGED WITH THIRD DEGREE THEFT?  WHAT CAN I DO?

 

Not many attorneys in private practice want to represent people charged with shoplifting.  The majority of the people charged with it are unemployed and stealing for necessity and are not deemed “profitable.”  However, there are things an aggressive attorney can do to get your case dismissed and safeguard your future, and they can do it at a price that is affordable.  

The Law Office of Chris Van Vechten is passionate about defending those charged with Theft in the Third Degree.  Chris Van Vechten has worked to persuade the Tacoma City Council to decriminalize at least some categories of theft within city limits; arguing that the negative societal impacts outstrip the perceived harm.  

Committed to being both affordable and aggressive, Chris will work with you to make representation possible.

How Prosecutors Pressure Your Attorney Not To Investigate Your Case

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As shocking as it may sound, many prosecutors in multiple jurisdictions will coyly use the carrot of a plea bargain combined with the threat of a serious sentence to get criminal defendants not only to plead guilty short of a trial, but also to have their attorneys forgo even investigating the claims against them.  

For example, recently the Law Office of Chris Van Vechten won a minor domestic violence case. The State alleged that the client and her 9-month-pregnant daughter, “stormed in” to the house of the daughter’s ex-boyfriend while he was asleep on the couch and without reason or explanation, the client held the boyfriend’s arms at his side while her pregnant daughter repeatedly struck him in the face.  The reporting officer on scene wrote in the incident report:

[The boyfriend] tried to explain a very convoluted story about drugs, gang and prostitution activity in the area. He claimed he is already working with the FBI regarding the investigation. He tended to ramble about all of the other alleged activity, and it was difficult to get him to focus on the assault today. After awhile, I was able to get a synopsis of the incident from today. [He] said his girlfriend has previously worked as a prostitute for his mother and some local gang members. He claimed he is trying to help her stop working as a prostitute. He believed the mother was mad at him for interfering with the prostitution activity that the mother is profiting from. He couldn’t explain why his girlfriend was assaulting him for trying to help her.

Since neither the client nor her daughter were at the house when the officer was investigating the case, neither were ever interviewed by law enforcement.  

Objectively, this was an unreasonable case to file.  Yet the prosecutor charged both the mother and her daughter with Assault in the Fourth Degree, Domestic Violence.

In response, the Law Office of Chris Van Vechten sought to demonstrate that the boyfriend at issue was a very controlling and violent individual when it comes to the women in his life, and that he has a particular history of abusing pregnant women which is documented in our courts. In 2009, the King County Superior Court granted a protection order against him based on one girlfriend’s claim that since becoming pregnant, he had assaulted her multiple times, engaged in telephone harassment, told her that he was going to kill her and her entire family and then kill himself if she ever left him.  In 2015, he was charged in Pierce County Superior Court with Felony Harassment. In that case, he had shown up drunk at the residence of another ex-girlfriend and made various threats. When officers took him into custody, he asked them for their name and badge number, and once given declared that when he got out of jail he was going to “find the officer and his family and force the officer to watch while he killed the family members before killing the officer.”  

Our client’s story was that on the morning of the day in issue, the client and her daughter informed the boyfriend that she was leaving him.  Realizing that he would no longer have access to his girlfriend, the State’s alleged victim characteristically responded with violent threats about what would happen to both our client and her daughter if she left the house. As the client’s daughter was packing up her belongs to leave, the boyfriend followed her from room to room hurling insults and making threats. Eventually, our client’s daughter told her now ex-boyfriend to “fuck off.” This set him off. He charged at her in an attempt to assault her despite the fact that she was nine-months pregnant. She ran, and her mother –  our client – tried to shield her by blocking the boyfriend’s advance by standing in a doorway. The boyfriend plowed through our client, thereby initiating the only point of physical contact between himself and the Defendant over the course of the incident.

The two ladies escaped from the house and fled the scene.  The theory of our case thus was that the boyfriend,  frustrated by his inability to abuse his pregnant girlfriend as he had with previous girlfriends, was attempting to use the prosecutor’s office as a tool of domestic violence. 

THE PROSECUTORS TRY TO DEFEAT INVESTIGATION VIA A PLEA OFFER

The State was made fully aware of all the problems with their alleged victim.  Yet, instead of dismissing in the face of what objectively appeared to be a miscarriage of justice, they made our client the typical offer of someone with little to no criminal history: pay for a year or two of expensive “therapeutic” classes, pay expensive court fines, give up your right to a trial and your presumption of innocence, and if you don’t commit any crimes for one or two years and you pay all of your fines and classes on time, we’ll dismiss your case.  No jail, no conviction, just a couple thousand dollars out of your pocket and probation.  

Naturally, of course, the value of a plea offer – which is effectively what all such agreements are – is determined by the value of admissible evidence.  And so, as any responsible attorney who is actually advocating for their client would do, we attempted to interview the State’s alleged victim.  However, he was – shockingly – noncooperative and responded to our efforts with vague threats.  

So, we asked the Prosecutor’s office to assist us in setting up an interview with their star witness.  This was the State’s reply:

Typically, interviews are only requested once the case sets for trial. We can do it during the pre-trial stage, but I want you to know beforehand that I do not keep pre-trial offers open once interviews have been requested. This is because we do not know what the interviews will show. The case could get better. It could get worse. It also drastically lowers the State’s incentive to negotiate because we will have expended significant resources preparing for the interview and are, therefore, already partially prepared for trial.

 

If you want to negotiate the case before we go through the interview process, feel free to give me a call or send me an e-mail with your proposed counter offer and the reasons why it is appropriate.

We responded by immediately objecting to the State’s proposal that cases be negotiated purely on the basis of allegations without the benefit of examining the evidence, and the seemingly coercive effort to use a plea offer to defeat due process of law.  Then we filed a motion.  Before it was heard, the State dismissed, allegedly because their victim stopped cooperating even with them.

ARE SUCH TACTICS LAWFUL?  

DOES YOUR ATTORNEY HAVE A DUTY TO RESIST SUCH COERCION EVEN IF IT SUBSEQUENTLY HURTS THE CLIENT?

While most people would probably agree that such conduct is unbecoming of an office sworn to protect the community and to do justice, the issue of whether these tactics constitute prosecutorial misconduct is less clear.  

The Pierce County Prosecutor’s Office has been condemned in the past for using plea bargains to discourage defense counsel from investigating claims against the accused. In State v. Zhao, 157 Wn.2d 188, 137 P.3d 835 (2006), Justice Sanders wrote a concurring majority opinion with Justice Chambers calling the Pierce County Prosecutor’s Office policy “prosecutorial misconduct” and warned that “acquiescence [to the policy] by defense counsel may be unethical as well.” Id. at 206.

The United States Constitution and the Washington Constitution both guarantee a criminal defendant the right to counsel. U.S. CONST. amend. 6; WASH. CONST. art. I, 22. To provide constitutionally adequate representation a criminal defendant’s counsel ” ‘must, at a minimum, conduct a reasonable investigation enabling … informed decisions about how best to represent [the] client.’ ” In re Pers. 157 Wn.2d 205 157 Wn.2d 205 Restraint of Brett, 142 Wash.2d 868, 873, 16 P.3d 601 (2001). And the prosecution may not interfere with this investigation. State v. Burri, 87 Wash.2d 175, 180, 550 P.2d 507 (1976).

Interviewing witnesses is an essential part of a reasonable investigation and counsel cannot properly evaluate the merits of a plea bargain without fully investigating the facts. To quote Zhao: “by conditioning the availability of a plea bargain on a limited investigation, the Pierce County Prosecutor infringes the right to counsel.” Id. at 205. It is true that a witness for the prosecution may refuse to speak to the defense. Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir.1981) (holding witness “may of his own free will refuse to be interviewed by either the prosecution or the defense”).  However, “the prosecution may not discourage interviews.” Zhao at 205. By discouraging interviews, “the Pierce County Prosecutor’s policy improperly interferes with a defendant’s right to investigate the facts.” Id. at 205.

Additionally, while it is true that defendants do not have a right to a plea bargain, when the prosecution elects to offer one, it may not use said plea bargain as a coercive tool. See State v. Hofstetter, 75 Wn.App. 390, 402, 878 P.2d 474 (1994). As the Court wrote in Zhao:

The defense has a right to interview adverse witnesses, and the prosecution may not place coercive conditions on its exercise. As a ” ‘quasi-judicial officer, representing the People of the state,’ ” a prosecutor must ” ‘act impartially in the interest only of justice.’ ” State v. Reed, 102 Wash.2d 140, 147, 684 P.2d 699 (1984) (quoting State v. Case, 49 Wash.2d 66, 70-71, 298 P.2d 500 (1956)). Preventing the defense from fully investigating the facts hardly serves the interests of justice. It may be unethical prosecutorial misconduct. And acquiescence by defense counsel may be unethical as well. Zhao at 206.

Furthermore, when the State adoptes this negotiating posture, it may violate CrRLJ 4.7(g)(1), which reads: “except as otherwise provided by protective orders or as to matters not subject to disclosure, neither the lawyers for the parties nor other prosecution or defense personnel shall…impede the opposing lawyer’s investigation of the case.” If the intended effect of the State’s plea offer was to impede the investigation of the case, then possibly there is a serious violation.

AND YET, there are many courts where prosecutors get away with this tactic by explaining that they are not making threats, just informing the opposing counsel that they may withdraw the offer based on what the proposed investigation may reveal, and then remind everybody that they don’t have to give anybody a plea offer to begin with so they can frame the terms of that offer as they see fit.

 

WHAT CAN WE DO?

While the actions of defense attorneys reflect the personal interests of their clients, prosecutors are predominately directed by politics and internal office policy.  They are charged with protecting and representing the community, and therefore the community has the power to influence the internal policies of their local prosecutors.  

Members of the public should consider taking the time to express their concern that innocent people might be found guilty because of insufficient resources or investigation by defense counsel.  Since most prosecutors rarely engage in constituent correspondence and derive most of their policies from interactions with law enforcement, treatment providers and related groups, just a few emails and letters might dramatically influence the culture of prosecution in your community.  This should also be something that is routinely brought up when prosecutors are seeking re-election.

 

For our part, the Law Office of Chris Van Vechten is committed to challenging this tactic whenever and wherever it is employed because it is our belief that it constitutes prosecutorial misconduct and can only lead to serious due process violations and miscarriages of justice.  While it is true that prosecutors are not obligated to make a plea offer at all, that does not mean they may use a plea bargain to defeat an investigation.  But, it is the client, not the attorney, who suffers the wrath of prosecutors and judges and those brave enough to assert their constitutional rights have to understand this going forward.

 

Charged as a Juvenile

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The Juvenile Justice System is a strange subspecies of the criminal justice system that – for a variety of reasons – only a fraction of defense attorneys venture to try their hand at.  

Being charged as a juvenile means that the short term consequences of a conviction (called an “adjudication” within juvenile court lingo) are significantly diminished in terms of incarceration.  Also, while juvenile criminal history does not “go away” when a person turns 18, access to these records is greatly reduced once the juvenile turns 21. No consumer reporting agency may make a consumer report containing any juvenile records when the subject of those records is twenty-one or older.  See RCW 13.50.010.

On the other hand, being charged as a juvenile means the defendant (called the “respondent”) does not get the benefit of a jury trial – a major blow for any juvenile who asserts their innocence.  In addition, during select phases of the prosecution, juveniles do not have the right to a publicly appointed attorney (such as when formulating the terms of a diversion agreement).  This is extremely important because it is during these times when access to counsel is probably the most essential to the respondent.

Being convicted or even just arrested as a juvenile can incur immigration consequences; result in loss of driving privileges; result in expulsion from the public school system; deprive respondents from enrolling in organized scholastic activities such as sports; impact a juvenile’s chances to enroll in the college or university of their choice; loss of the right to possess a firearm; generally speaking – juvenile adjudications for felonies are a complete bar to serving in the military (though exceptions are made and military policy is always changing); employment in a variety of fields and more.  

That is why committed counsel is essential in every juvenile case.  What is at stake is nothing less than your child’s future.

Chris Van Vechten has gone to bat for his juvenile clients, convincing the State to decline filing charges and on multiple occasions proved the innocence of his clients.  Most recently, in a high profile case, Chris proved that a juvenile client who was charged with plotting a school shooting was framed by a classmate who the State had hailed as a hero.  

In 2009, Chris ran for Tacoma School Board on the promise “never to settle for less than what your children deserve.”  That is the mentality Chris takes with him to juvenile court.  He will fight for your child.

If your son or daughter has been charged or is even the subject of a complaint which has been filed with a Juvenile Court Diversion Unit,  you need to seek counsel immediately to help you assess your options and make informed/reasoned decisions.  Chris Van Vechten offers affordable consultations to juveniles and their families who are anticipating being charged in juvenile court, and a committed defense to those who have been charged. 

 

Smoke Pot? Own a Car? You should know about this.

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In 2015, the Washington State Legislature expanded its open container law to encompass marijuana.  House Bill 1276, which predominately concerned one of the Legislature’s favorite criminal subjects – DUI – nevertheless made it a traffic infraction for the registered owner of a motor vehicle, or the driver if the registered owner is not then present, or any passengers in the vehicle….to keep marijuana in a motor vehicle when the vehicle is upon a highway, unless it is (A) In the trunk; (B) In an area of a vehicle not “directly accessible” to the driver or passengers. (The rule expressly considers the glove compartment to be accessible); or (C) In a package or container that has not been opened.   If your primary mode of transport is a motorcycle, option C is arguably your only legal form of transport.

It is furthermore an infraction to ingest or smoke marijuana while driving or while riding as a passenger in the vehicle.

Of course, police officers still require at least a reasonable suspicion that a driver or passenger has or is about to commit a traffic infraction before initiating a stop.  The question then is whether – for example – simply by smoking an e-cigarette in a moving vehicle, a police officer will have an enforceable excuse to stop Washington motorists to ensure the substance that is being blown out is not cannabis-based.  And of course, in the course of investigating possible cannabis open container violations, said officers will have the right to run names for any warrants or to determine whether anyone in the car is a party to a no contact order.  They’ll also be able to ensure that licenses and insurance coverage is current, to inspect that wind-shields are properly tinted, etc. etc. etc.

The bottom line is that the Legislature has given law enforcement a new tool, and they intend to use it.  If they chose to use it on you, contact the Law Office of Chris Van Vechten immediately to determine how best to proceed.

 

WHEN IS IT LEGAL TO USE FORCE AGAINST A POLICE OFFICER

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The short answer is practically never.

Historically, a suspect had the right to resist an unlawful arrest by a police officer so long as the force applied was proportional to the threat presented. See State v, Rousseau, 40 Wn.2d 92, 94, 241 P.2d 447, 449 (1952). The theory behind this rule was explained – in later cases – as resulting from a time when “long imprisonment, often without the opportunity of bail, physical torture and other great dangers were to be apprehended from arrest, whether legal or illegal.” State v. Valentine, 132 Wn.2d 1, 14, 935 P.2d 1294 (1997).  In those days, prisoners who lacked financial resources had sub-standard accommodations, food and medical care. In addition, “every incident of prison life from admission to discharge was made the occasion for levying fees against the prisoners. There were charges for the arrest, for the privilege of detention in this or that prison….”

But by 1985, apparently all the aforementioned had changed, and this belief was expressed in State v. Holeman, 103 Wn.2d 426, 430, 693 P.2d 89, 92 (1985).  In that decision – the basis for the Court’s modern understanding of the law – the Court wrote:

The arrestee’s right to freedom from arrest without excessive force that falls short of causing serious injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom. However, in the vast majority of cases, as illustrated by the one at bar, resistance and intervention make matters worse, not better. They create violence where none would have otherwise existed or encourage further violence, resulting in a situation of arrest by combat. Police today are sometimes required to use lethal weapons for self-protection. If there is resistance on behalf of the person lawfully arrested and others go to his aid, the situation can degenerate to the point that what should have been a simple lawful arrest leads to serious injury or death to the arrestee, the police or innocent bystanders. Orderly and safe law enforcement demands that an arrestee not resist a lawful arrest and a bystander not intervene on his behalf unless the arrestee is actually about to be seriously injured or killed.

Popular wisdom among defense attorneys today is that a defendant thus cannot raise self-defense against a police officer, regardless of whether they were unlawfully arrested or whether they were assaulted by a police officer in the process…. unless they first actually die or are severely maimed by the police officer’s use of excessive force.  In fact, the pattern jury instruction reads

A person may use force to resist an arrest by someone known by the person to be a police officer only if the person being arrested is in actual and imminent danger of serious injury from an officer’s use of excessive force.

However, acceptance of this instruction should be challenged.  State v. Smits, 58 Wn.App. 333, 341, 792 P.2d 565, 569 (1990), suggested that, if an arrest is unlawful, the defendant may be justified in exercising self-defense against a police officer if the defendant reasonably believed they were in danger of serious bodily injury from a police officer’s use of force.

It’s an uphill battle to be sure, but given the public’s changing attitude toward law-enforcement, it’s an argument worth making for some clients charged with Assault 3, resisting arrest, and other crimes.

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The Law Office of Chris Van Vechten is a Criminal Defense Law Office Serving:

Seattle and all of King County

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Lacey . Tumwater . Yelm

Bremerton and all of Kitsap County

Bainbridge Island . Port Orchard . Poulsbo