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Vancouver Criminal Law Blog

Washington Court frees man based on Double Jeopardy

The Washington Supreme Court recently issued an important criminal law decision which will free a man who has been in prison since 2006, based on the  "bedrock" constitutional principle of double jeopardy.

            Mathew Moi was tried for murder in  2006. The prosecution theory was that he shot the victim. No physical evidence tied him to the gun. He was also charged with illegal possession of the same  firearm the prosecution contended was the murder weapon. His lawyer moved for a separate trial on the gun charge because part of the proof of the firearm charge was that Moi had been convicted, while a juvenile, of a felony robbery. The State opposed severance of the two counts, and suggested that Moi could have a bench trial (non-jury trial) on the firearm charge which would reduce the possibility of the jury being prejudiced by the juvenile robbery conviction. The trial court agreed to this procedure.

            The first trial ended in a hung jury on the homicide count, but the trial judge found Moi not guilty of the illegal possession of the firearm, which the prosecution contended was the murder weapon.

Washington Court "clarifies" Double Jeopardy in criminal law

The Washington Supreme Court recently issued a decision in the area of criminal law which tried to clarify when prosecutors can refile charges after a jury has reached a verdict on a lesser included offense. State v. Glasmann, (May 7, 2015)

The defendant was on trial for fist degree assault, first degree attempted robbery, and first degree kidnapping. The jury reached agreement on the kidnapping charge, but apparently could not reach agreement on the  first degree assault and  first degree robbery charges. It convicted the defendant of the lesser charges of assault in the second degree and second degree attempted robbery.

The defendant filed a personal restraint petition alleging misconduct by the prosecutor in closing argument. The court granted the petition and vacated his convictions for the assault, robbery, and kidnapping. The prosecutor then attempted to retry the defendant on the greater charges on which the jury had apparently been unable to agree. Glasmann argued that this was barred by the constitutional prohibition against double jeopardy.

The jurrors were given instructions that if after a "full and careful consideration" of the greater charge they could not reach agreement, they should move onto the lesser included charges. The majority of the Washington Supreme Court concluded that by leaving the verdict forms for the greater charges blank, the jury was simply following the instructions it had been given to move on to the lesser charges and necessarily was deadlocked. It chose not to follow a decision by the Federal 9th Circuit of the Court of Appeals that would require a more concrete showing of "genuine deadlock" by the jury before a mistrial (Hung Jury) could be declared.

Washington Court Upholds Right to Privacy in the Home

On March 3, 2015 Division III of the Court of Appeals of Washington issued its decision in State v. Budd.  This is a significant decision regarding the right to privacy in a person's home.

The decision opens with a exchange between Senator Tallmadge and John Ehrlichman, one of Nixon's henchmen, during the Watergate era. The topic is the protection of even the humblest dwelling from invasion by minions of the Crown.

 Budd was being investigated by the police for possession of child pornography. Lacking probable cause for a warrant, the  police decided to employ an investigatory tactic know as  "knock and talk". They confronted Budd outside his home with their suspicions.  They asked for his consent to enter and seize his computer. The investigating officer said that if he refused, she would and could obtain a warrant to search the house. Budd apparently did not want his girlfriend to see any of the images on his computer. When the police agreed not to do that, he agreed to allow them to enter.

Prosecutorial misconduct causes reversal of murder conviction

in  an important case involving prosecutorial misconduct during closing argument, the Washington Supreme Court  reversed a first degree murder conviction in State v. Walker. The decision was announced on January 22, 2015, and reaffirms the criminal law requirement of a fair jury trial.

The prosecutor had repeatedly expressed his personal opinion about the defendant's guilt, partly through the argument itself, and partly through Power Point slides. One of these depicted the defendant's booking photo with the words "GUILTY BEYOND A REASONABLE DOUBT" superimposed in very large boldface red letters. Of the 250 slides used in the Power Point presentation, over 100 of them were headed by the caption "Defendant Walker guilty of premeditated murder". A number of these involved altered versions of exhibits admitted during the trial.  The  majority of the court found over 100 of them to improperly express the personal opinion of the prosecutor that the defendant was guilty, which Washington courts have repeatedly held denies the accused person  a fair trial.The court held that other slides were improper because of racial slurs or other inflammatory text or positioning next to photos of the victim of the crime.

Washington Supreme Court Clarifies Criminal Law Burden of Proof

The Washington Supreme Court  decided State v. W.R. on October 30, 2014 and clarified the burden of proof in rape cases. The juvenile defendant  (W.R.) was charged with second degree rape. In a bench trial, since jury trials are not allowed in juvenile  court under Washington criminal law, the trial judge found W.R guilty of second degree rape. The defense had argued that the sexual intercourse between W. R. and another juvenile had been consensual. The trial court ruled that the defendant had not proven consent and that he had the burden to do so. 

Under current Washington criminal law, rape in the second degree requires the prosecution to prove that the intercourse was by means of " forcible compulsion." Rape in the third degree, a lesser offense, requires the prosecution to prove that the woman did not consent to intercourse. Many previous Washington decisions have struggled with trying to define the line between these two crimes, in cases with often disputed factual scenarios.

Previous Washington decisions had placed the burden on the defense to prove that  the woman had consented. In the  State v. W. R. decision, the court ruled that placing the burden on the defense to prove consent in a forcible compulsion rape prosecution was a violation of existing United States Supreme Court precedent allocating the burden of proof in a criminal law case.  This was because in order to prove "forcible compulsion" the state would have to negate evidence of consent.  Thus to meet its burden, the prosecution has  over come and  disprove evidence of consent. As the court observed, "there can be no forcible compulsion when the victim consents, as there is no resistance to overcome." the court explicitly overruled the earlier cases which had placed on the defense the burden of proving consent to intercourse.

Washington Supreme Court Excludes Past Domestic Violence Evidence

 

The Washington State Supreme Court decided State v. Gunderson on November 20, 2014. Gunderson was charged with violating a no contact order. The charge was elevated to a felony because Gunderson had allegedly assaulted either his ex-girlfriend or her mother during what the mother described as a "scuffle" when initially reporting the matter to the police.

The ex-girlfriend had not made any statement to the police or to the prosecution before trial. At Gunderson's trial, she testified there had been no assault on her, nor on her mother. She had, in fact, suffered no injury. The prosecution then asked the court to allow it to attack the ex-girlfriend's credibility by offering evidence that Gunderson had previously been convicted of domestic violence on two previous occasions. The trial court allowed this, and Gunderson was convicted.

 

Marijuana and DUI in Vancouver

Now that Vancouver has its own two licensed retail  stores selling marijuana to adults, can we expect to see an increase in people charged with marijuana based on the consumption of legal marijuana? It is  probably too soon for any reliable statistics from the courts, but we should know more by this time next year.

Supreme Court protects privacy interest in cell phones

I wrote on April 28th about the oral argument in the United States Supreme Court concerning a warrantless search of cell phones. Today, the court decides that people's privacy interests  in their cell phones are worthy of protection under the Fourth Amendment, unless the police obtain a warrant to search them. 

 

The decisions came in two cases involving persons charged with drug charges or gang activity. Both were arrested by the police, and ultimately their phones were searched, which led in both cases to incriminating evidence used against them in their trials. 

 

Historically, the police were allowed to search items found on persons who were arrested. The rationale for such searches was to prevent the police from being attacked by a weapon carried by an arrestee, and to prevent the arrested person from destroying evidence.

Can Legal Marijuana Market Survive Moratoriums?

Clark County's two remaining commissioners approved a total moratorium on any marijuana businesses, including retail, growing or processing, in unincorporated areas of the county.  The ordinance is like one passed by Pierce County after the state attorney general gave a formal opinion that local  governments could regulate marijuana businesses to the extent of totally banning them despite the state law allowing them.

This leaves the City of Vancouver and the city of Battle Ground as the only areas where retail sales of marijuana could legally take place under Initiative 502. Vancouver has also allowed growing and processing of marijuana in particular areas of the city.

The state law was intended to allow the development of a legal recreational marijuana market in Washington, despite the fact that marijuana remains illegal under Federal law. The Federal Department of Justice has issued statements which indicate licensed marijuana businesses would not be prosecuted for drug charges under Federal law so long as appropriate controls were observed. There have also been some signs that banking restrictions may be eased.

The state Liquor Control Board is charged with regulating the new industry. Because there were more applicants for retail licenses than were allocated to the county and cities, a lottery took place to determine who would be given a retail license.