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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?

 

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.

 

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.

No Contact Orders

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Because of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when any person charged with or arrested for a crime involving domestic violence is released from custody before arraignment or trial on bail or personal recognizance, the court authorizing the release may prohibit that person from having any contact with the victim. —

RCW 10.99.040

 

Although the key word here is “may” the practical effect is “will.”

Domestic violence is a catch-all for all wrongs – violent or otherwise – committed against a “family or household member ” which is further defined as “spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.”  RCW 10.99.020

This means individuals who have stayed a week under the same roof or had a brief open and uncommitted sexual relationship could subsequently fall under the DV enhancement. And this is not just theoretically possible, but a daily reality for those accused of these crimes. 

Despite the heavy penalties for those who are convicted of DV crimes, the vast majority of convictions are not violent and take the form of No Contact Order Violations, often initiated by the party who the court has elected to protect.  Although it is not uncommon for these persons to argue that they don’t want nor require any protection, Washington’s courts – bending to politically popular theories of the psychology of victimhood – nevertheless routinely impose these restrictions over the objection of the alleged victim on the theory that the victim is so dominated and controlled by the accused that they can’t make honest decisions which reflect their best interest.  Nevermind that many if not most alleged victims of domestic violence have themselves been convicted of DV crimes.

WHAT BEING CHARGED WITH A DV CRIME & LIVING WITH A NCO MEANS FOR YOU

Forget conviction, just being charged with domestic violence is a horrendous experience.

Even though you have not even been convicted of anything yet, expect to lose your house because the No Contact Order will prohibit you from coming within a certain number of feet of the protected party’s residence.

Parental and childcare duties will also be disrupted because unless third party contact is authorized by the order, any steps you take to fulfill your responsibility as a mom or dad can land you in jail for up to 364 days. 

Bills will also go unpaid unless you have a shared bank account because mailing a check to the protected party would be a no contact order violation. Too many people get charged for seemingly innocent technical violations like this.

WHAT YOU CAN DO ABOUT IT

Your options depend largely on the culture of the Court in which you are charged.  For example, it is very uncommon in Thurston County District or Superior Court to get a no contact order lifted unless the prohibited party first gets a domestic violence evaluation (which the government will not pay for) and unless the protected party has appeared before the court requesting the order to be lifted.  Even then, it is still difficult as the prosecutors are likely to object.  Judges in Thurston County often explain that the purpose of an NCO is two fold: to protect the individual &  to protect the case (meaning, prevent witness tampering – a felony). 

Nevertheless, with progress and skilled advocacy, modifications and removal of NCOs are possible. 

By contrast, the culture of other courts is very different.  In Tacoma Municipal, for example, there is an expressed understanding that domestic relations are complex.  In courts like these, alleged victims are encouraged to watch videos on domestic violence or develop what is called a “safety plan” before the Court is willing to take action.  It is not uncommon for these jurisdictions to grant “non-hostile contact” even before the case is resolved.

In either jurisdiction, those with private council are more likely to get a speedy removal or modification of the No Contact Order.  This is because many public defenders consider modification/removal of NCOs to be outside the scope of their already taxed representation.  Also, hiring private counsel often signals to the court that the Defendant is taking these proceedings seriously and overall is a more stable person.

See Private Counsel v. Public Defender

 CONTACT YOUR LEGISLATOR 

The automatic blanket issuing of Domestic Violence No Contact Orders merely in response to filing a charge destroys families, drives a disproportionately low-income population deeper into poverty, and needlessly wastes precious tax revenue.  If a domestic violence evaluation (sometimes called a batter’s assessment) is a pre-requisite for courts lifting these orders, State funds need to be made available to allow the indigent to be evaluated.  Too often, the alternative for those persons who can’t afford the evaluation is homelessness or to violate the order.   

HOW EASILY YOU CAN BE CHARGED WITH BURGLARIZING YOUR OWN HOUSE

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HYPOTHETICAL BASED ON REAL EVENTS

One day in January, police officers responded to a house in Pierce County for a domestic disturbance and possible no contact order violation.  It was reported that the Defendant – Jack – was living with his sister – Jill. Deputies subsequently arrived at the aforementioned address and interviewed both Jack and Jill. Although no evidence of a fight was uncovered and no assault was subsequently charged, it was quickly discovered that Jack was prohibited from having contact with his sister per a pre-trial domestic violence no contact order.  Jill did not want a no contact order against Jack, but the court had imposed one anyway because Jill had previously called 9-1-1 on Jack making allegations that were later held to be unfounded.

Jill was homeless, and had asked her brother Jack if she could stay with him “for a while” just two weeks prior to his arrest.  Jack knew about the no contact order and that it was illegal for him to be within 500 feet of Jill, her place of employment, or her “residence” – but, he felt his duty as a brother necessitated he provide Jill with shelter.  He never put Jill on the lease, never gave her a key, and Jill never paid any rent.

When Jack was arrested following the officers’ discovery that he was prohibited from being within 500 feet of Jill, he expected to be charged with violation of a no contact order – a gross misdemeanor with a maximum sentence of 364 days in jail and a $5,000 fine.  Instead, prosecutors charged him with residential burglary, a Class B Felony with a maximum sentence of 10 years in jail and a $20,000 fine.

THE LAW

At common law, burglary was defined as:

the trespassory breaking and entering of the dwelling of another at night with an intent to commit a felony therein.

 

This definition was absurdly narrow for modern times and was subsequently eroded over the ages.  Residential Burglary today is found when a defendant  “with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.”  However, this definition is absurdly too broad in the outcomes it creates.

For example, suppose Herfy steals a liquor bottle from Wal-Mart, gets caught, and subsequently is trespassed from all Wal-Mart stores and properties for life.  (This is standard Wal-Mart procedure).  A few years later, he goes to a different Wal-Mart store and steals a pack of gum.  He now gets charged with Second Degree Burglary because he unlawfully entered a building with the intent to commit a crime.  See RCW 9A.52.030.  The theory being that it was unlawful for him to be there because he was banished from all Wal- Marts.  So long as the State can prove that he entered the store with the intent of committing any crime there-in, they can sentence Herfy to up to ten years for that little pack of chewing-gum.

In Jack and Jill’s case, because No Contact Orders don’t define “residence” and because Jill was homeless – thereby making any place she spends the night her “residence” no matter how transitory that experience is – the State feels justified in bringing residential burglary charges against Jack.

Anyone currently saddled with an involuntary No Contact Order (the vast majority of domestic violence no contact orders are imposed over the alleged victims objection) needs to be aware that cohabitation with the prohibited party is not only illegal, it is a Class B felony.

FIGHTING BACK

Unfortunately, few – if any –  persons prohibited from having  contact with someone are aware that this is the law, and until courts start printing more explicit No Contact Orders, more defense attorneys should be encouraged to file motions on behalf of clients facing burglary charges like this.  One interesting argument is that charging people with residential burglary under facts similar to those facing Jack is a violation of Jack’s right to due process.

Due process requires that criminal statutes be properly worded so that they give fair warning of the type of conduct they purport to criminalize.  State v. Wilson, 117 Wn.App. 1, 12, 75 P.3d 573, 578 (2003).  Although due process requirements primarily extend to the proper wording of statutes, other regulations or statutes may require specific notice be provided on court orders. Id.  Where such statutory notice is required but not given, a due process violation may occur.  Id.  The Court requires that all protection orders “shall include, in a conspicuous location, notice of the criminal penalties resulting from violation of the order.”  State v. Dejarlais, 136 Wn.2d 939, 943 969 P.2d 90, 92 (1998); see also RCW 26.50.035(c).

Generally, No Contact Order forms warn the prohibited party that:

Violation of the provisions of this order with actual notice of its terms is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest; any assault, drive-by-shooting, or reckless endangerment that is a violation of this order is a felony.

Nowhere is notice ever given on a standard No Contact Order form that cohabitation with the protected party constitutes residential burglary and is a felony.  Applying the maxim of expressio unius est exclusion alterius, a defendant could not reasonably be put on notice that residential burglary is among the possible criminal penalties resulting from violation of the standard No Contact Order.

Often times, No Contact Orders include “Additional Warnings to Defendant” which read: “Willful violation of this order is punishable under RCW 26.50.110.” Had Jack read this statute he would have known that willful violation of the order is a gross misdemeanor. See RCW 26.50.110(1)(a). He would have known that assaults or conduct that is “reckless and creates a substantial risk of death or serious physical injury to another person” is punishable as a class C felony. See RCW 26.50.110(4). He would have known that a violation of the NCO can be a class C felony if she had previously been convicted of violating the restrain provision twice before. See RCW 26.50.110(5). But he never would have known that allowing his homeless sister to live with him would transform his lawful residence into hers, and make any subsequent entry into his own home a residential burglary.  

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The Effect of I-594

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Nationwide, gun violence has been in a continual decline for the past 30 years. Nevertheless, this year Washington’s gun-control advocates made the case that additional laws were necessary to keep guns away from criminals and the mentally ill. Their mechanism for doing so was I-594.

Here’s the facts about the new law, what it changes, and what it does not.

BEFORE I-594

First, it was already illegal for Washingtonians who had been convicted of any form of domestic violence to possess a firearm. This means if you responded to a text message from a girlfriend who had a No Contact Order against you and got caught, your right to own a firearm was terminated.

It was also already illegal for someone charged with domestic violence to possess a firearm, with select exceptions for members of the military and law enforcement. It was also illegal to sell a firearm to someone convicted or charged with these crimes or to buy a gun on behalf of an individual charged with these crimes.

For such individuals, it’s a risk to be in someone else’s house if they own a gun, because mere proximity could constitute “possession” in the eyes of a zealous prosecutor.

There were and are other ways to lose the right to own a firearm that had nothing to do with guns. For example, a drunk driver who falls asleep at the wheel and consequently kills someone can lose the right to possess a firearm.

However, for those of us still allowed to possess a firearm, there were several ways to go about getting one.  We could purchase them through a licensed dealer, or we could sell them at gun shows – though the ability to purchase, sell or carry at these gun shows was already restricted in multiple ways.  For example, some shows wouldn’t let you buy or sell unless you were an NRA member.  Another way to get firearms was as gifts or through inheritance.

WHAT’S CHANGING

Not that much actually.  §1 explicitly says:

This measure would extend criminal and public safety background checks to all gun sales or transfers. Background checks would not be required for gifts between immediate family members or for antiques.

So, you can still inherit your daddy’s pistol without the executor of the estate or the probate court going through a background check.  You can also gift guns to “immediate family members” defined as “spouses, domestic partners, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles.” §3(4)(a).  However, now you do need to report your possession of these guns to the department of licensing.  §3(4)(g)

What you can no longer do – unless you are a licensed gun dealer – is sell guns to a stranger at a gun show, unless you do so through a licensed intermediary.  Again, there was already regulations prohibiting who could sell and buy at gun shows, so this law is truly unnecessary.

The practical effect is that now, everyone must sell through or via a licensed dealer.  The problem with this is it’s not uncommon for dealers to take consignment fees.  We’ve seen these fees go as high as 40% of the sale price.  Given how expensive guns are, such a significant loss in the sales price might actually discourage gun owners from jettisoning their unwanted firearms and that might actually create a risk that neglected firearms will lie around in attics until discovered by the wrong hands.  I-594 seems to acknowledge this problem and attempts to address it by declaring:

The licensed dealer may charge a fee that reflects the fair market value of the administrative costs and efforts incurred by the licensed dealer for facilitating the sale or transfer of the firearm.

However, it doesn’t define what “fair market” is. Presumably, since the market currently allows 40% consignment fees, I-594 considers that fair.

WHAT ELSE IS NEW?

It’s unclear, but one could interpret the new law as forbidding the purchase of a pistol without a concealed pistol license.  §5(1)(a).  Prior to I-594, the law stated that no dealer could deliver a pistol to the purchaser until:

 

  1.      The purchaser produces a valid concealed pistol license;
  2.      The dealer was notified in writing by the chief of police or the sheriff of the jurisdiction in which the purchaser resides that the purchaser is eligible to possess a pistol under RCW9.41.040 and that the application to purchase is approved by the chief of police or sheriff; OR
  3.        Five business days, meaning days on which state offices are open, have elapsed from the time of receipt of the application for the purchase thereof as provided herein by the chief of police or sheriff designated in subsection (5) of this section, and, when delivered, the pistol shall be securely wrapped and shall be unloaded.

See RCW 9.41.090

I-594 removes option #3, meaning if you don’t have a concealed pistol license, you can’t purchase a pistol.

This is a strange policy choice, as it almost encourages pistol owners to carry pistols, and that can only lead to more shootings.

WHAT ELSE?

There’s a lot of hubbub about “transfers” surrounding this initiative.  Opponents of I-594 seem to believe that allowing someone else to hold the gun might be a crime.  This interpretation is unfounded, but they are correct in that there are a lot of scenarios not covered by this initiative which do not constitute a crime by the law of common sense, but may under this initiative.

For example, the photo of Lawyer Chris Van Vechten holding the assault rifle in this post was not taken at an established shooting range, but rather in a ditch in Eastern Washington.  The gun belongs to Chris’ brother-in-law, not an “immediate family member” under this Initiative.  And because Chris was only target shooting, not hunting, he arguably could be arrested for doing this in a post I-594 world.

BOTTOM LINE

Your right to own and carry a gun has not been seriously diminished by the passage of I-594.  However, the amount of money you can collect selling your old gun probably has been reduced by the forced inclusion of licensed dealers.  Also, it is very likely that many of us will fail to report ownership of inherited guns to the department of licensing and one day potentially face criminal charges simply because the bureaucratic machinery fails to provide a method for giving notice.

The Law Office of Chris Van Vechten is committed to defending client’s Second Amendment rights and to assisting those who have lost said rights in restoring them.

 

 

 

 

 

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