Court overrules judge who thinks he is a prosecutor

Out in the wheat fields of Ritzville, Washington, an Adams County Superior Court judge refused to dismiss a case after a prosecutor told the court they did not have enough evidence to prosecute and wished to dismiss the case. In the case, State v. Agustin, a juvenile defendant was charged with possession of marijuana. At a suppression hearing, the court suppressed key evidence in the case. Following the suppression hearing, the prosecutor filed a motion to dismiss with the court, and notified the defense attorney that they would not be proceeding to trial and would be dismissing the case (note, in juvenile court, one has a right to a bench trial, but not a jury trial). The defense attorney showed up on the morning of trial expecting the case to be dismissed, as the prosecutor had stated. Instead, the judge indicated he had reviewed the request for dismissal and disagreed that there was not enough evidence to prove the offense. The judge denied the prosecutor’s motion to dismiss, and ordered the prosecutor to call witnesses and proceed to trial. At the conclusion of the trial, the judge found the defendant guilty.

On appeal, the appellate court noted that while a judge does have discretion to deny a prosecutor’s motion to dismiss, this discretion only exists if the prosecutor’s reason for dismissing was inappropriate. An example of an inappropriate reason to dismiss would be a prosecutor who is up against a speedy trial deadline who dismisses a case and then refiles (dismissing and refiling adds speedy trial time to a case; i.e. the prosecutor would be gaming the system). In this case, the court noted the prosecutor had not just expressed doubts about their ability to prove the charge but had actually filed a written motion to dismiss and notified the defense of their intention. The appeal court found the defendant’s separation of powers argument persuasive, and dismissed the case. No wonder some judges are referred to as prosecutors in a black robe.

Washington’s Privacy Act does not apply to Defendant’s inadvertant recording

In the recent Washington Supreme Court decision, State v. John Garrett Smith, the defendant was convicted of seriously injuring his wife. During the assault, the Defendant used the home’s land line phone to call his cell phone in an attempt to locate the cell phone (which the defendant had misplaced). Unbeknownst the defendant, when he called his cell phone and did not answer the cell phone went to his voice mail and started recording a message (because the land line phone was still on). The voice mail message recorded his wife screaming and also contained other key pieces of evidence. Eventually, the prosecutor obtained this voice message and used it against the defendant at trial.

The defendant was convicted at trial but appealed, arguing, among other things, that the prosecutor’s use of the voice mail message violated Washington’s privacy act, which is found in RCW 9.73.030. In a nutshell, that statute requires a person’s consent to record a private conversation.

The court held that this voice message did not contain a “conversation” within the meaning of the privacy act. Since the privacy act did not apply, no consent was needed. Furthermore, the court added that even if the voice message was a “conversation” under the privacy act, the defendant implicitly consented to the recording since he was the one who initiated it (and despite the fact the defendant did not intentionally record the conversation or was even aware of the recording). And while he did not obtain his wife’s consent prior to making the recording, there is an exception to the consent rule in the privacy act for conversations that contain threats or are an emergency in nature. Accordingly, the court allowed the use of the voice message at trial and upheld the conviction.

How to bench the judge-the affidavit of prejudice court rule

A good attorney will know all the judges in a particular jurisdiction and what judges are good for each particular kind of case and issue. But how can an attorney get a particular case set in front of the ideal judge? In Washington State, we have an affidavit of prejudice statute, RCW 4.12.050, Superior Court Criminal Rule 8.9, and CrRLJ 8.9 (for District Court). If a criminal case was a game of cards, the affidavit of prejudice rule is a playing card that says if an attorney or defendant thinks that a particular judge cannot be fair and impartial, they can play a card against that judge and a replacement judge must be brought in. But you can only play this card once. Also, there are limits as to  when you can play this card. So while you cannot pick the best judge for your particular case, you can get rid of the worst judge.

Who qualifies for a public defender?

Under the Constitution and the landmark Supreme Court case, Gideon v. Wainwright, 372 U.S. 335 (1963), anyone charged with a criminal offense has a right to an attorney, and if they cannot afford an attorney, one will be appointed to them by the court (at taxpayers expense). This is true regardless of whether the person is accused of stealing $18 million or accused of stealing a candy bar from 7 eleven.

Qualifying for a public defender. Under Washington law, to receive a public defender, you must qualify as indigent under RCW 10.101.010, which defines “indigent” as:

  • Receiving one of the following types of public assistance: Temporary assistance for needy families, aged, blind, or disabled assistance benefits, medical care services under RCW 74.09.035, pregnant women assistance benefits, poverty-related veterans’ benefits, food stamps or food stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or
  • Involuntarily committed to a public mental health facility; or
  • Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the current federally established poverty level; or
  • Unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.

The federally established poverty level depends on the size of the household. But in 2015, for a one person household, if the person is making less than $11,770 a year it means the person is living in poverty. So in Washington State,  if a person lives by themselves and make less  than $14,713 a year, the person will get a free public defender.

However, even if the person makes more than $14,713, they may still qualify for a public defender if the person is “[u]nable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.” In other words, it is up to the public defense agency to decide how much an attorney would cost for that person’s particular case and whether the person can afford an attorney. If the public defense agency finds that the person is not indigent, but that the person does not make enough to afford an attorney, then the person will still qualify for the public defender. The public defender in this case is not completely free. Instead, the public defense agency will make the person sign a promissory note agreeing to make payments towards the cost of their public defender. The total fee imposed is a sliding scale based on the person’s income and the person normally has at least 12 months to pay back the costs.

What documents are reviewed to determine if the person qualifies for a public defender? In King County, the public defense agency requires the person attend a financial interview, where the screener will ask the person questions about their financial situation. The person is asked to submit pay stubs from the last three months, the most recent bank statement, a copy of last year’s income tax return, and any items that shows the person is receiving public assistance or unemployment compensation. RCW 10.101.020 also requires the person to sign an affidavit under penalty of perjury that the answers and documents provided are accurate. RCW 10.101.020 also states the appointment of counsel shall not be denied “because the person’s friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bond.” So even if the person has rich parents, they may still qualify for the public defender.

A public defender is only available to those facing criminal charges, involuntary commitment to a mental health facility, contempt of court for failure to pay child support, or if the State is trying to take the person’s child away from them. A public defender is not available for infractions (like speeding tickets) or the DOL Administrative Hearing on a DUI case.

Why jail booking photos in Washington State cannot be found on the internet

There are some entertaining celebrity booking photos available on the internet. These celebrity booking photos are posted on the internet because in some States, booking photos are considered a public record. There are several unsavory internet businesses that capitalize on this law threatening to publish a person’s booking photo online unless the person pays them a fee. If the person gives in to the extortion demands, there will inevitably be another web site that threatens to do the same thing. In other words, once posted, it is essentially impossible to remove the person’s booking photo from the internet.

Fortunately, Washington State does not consider booking photos to be public records. Specifically, RCW 70.48.100 states that “the records of a person confined in jail shall be held in confidence.” The statute lays out several exceptions, such as a court order directing the release of the record. Since the booking photo is taken within the jail and is used for correctional purposes, it is considered confidential under this law. So unlike citizens in other states, those arrested for a crime in Washington state do not have to worry about their booking photo appearing on the internet. Keep in mind that while a booking photo is not available to the public, the record of arrest, conviction, and the police reports are available to the public and can be posted on the internet.

If you do find a Washington State booking photo on the internet, please contact me. I am not convinced that every jail in Washington honors RCW 70.48.100 and some may be unlawfully releasing booking photos to the public.

What do you mean I can’t have a copy of my own police report?

You’ve been charged with a crime, hire an attorney, and make an appointment to go over the police reports with that attorney. At the conclusion of the meeting, you ask the attorney if you can have a copy of the police report to share with your friends, family, employer, or whoever else you think should have an opportunity to read the police reports. The answer your attorney is ethically required to give to you is, “due to court rule CrRLJ 4.7(g)(3), I am prohibited from giving you a copy of the discovery, i.e. the police report in this case.” Huh? Yes, there is a court rule that says your attorney cannot give you a copy of the police reports, assuming they received the police reports from the prosecutor as discovery in the case. The rule makes sense for serious felony cases like murder and sex offenses. In a murder case, the discovery may contain the address and phone numbers for the witnesses and the court doesn’t want the defendant to go whack all the witnesses. In a sex offense, the discovery may contain something illegal (like child porn) and the court doesn’t want the defendant to have a further opportunity to exploit the victim. But in more simple criminal cases, like a DUI, this rule makes no sense. The good news is there are some easy ways to get around this rule. First off, the rule itself says your attorney can give you a copy of the discovery if the prosecutor and court agree to it. So you can always make the request to the judge. Also, the defendant (or any person for that matter) can make a public records request to the law enforcement agency requesting the police report. If your attorney obtained the report via a public records request or a DOL hearing on a DUI case, your attorney can provide the report to you without violating the court rule, since the court rule only applies to “discovery” provided by the prosecutor. And finally, while the rule says the attorney must maintain “exclusive custody” of the material, you can always read the police report in your attorney’s office, and take very detailed notes about the police report.

Court rules a riding lawnmower is not a vehicle for purposes of theft

In the recent decision of State v. Barnes, the defendant attempted to steal a riding lawnmower. The defendant drove his truck onto the victim’s property, and started to load the lawnmower into his truck when he was caught in the act. Rather than charge the defendant with Theft in the First or Second Degree, the prosecutor chose to charge the defendant with Theft of Motor Vehicle, presumably because it would carry a longer sentence than regular theft, which all depends on the value of the lawnmower. The trial court dismissed the charge ruling that a lawnmower was not “motor vehicle” under the Theft of Motor Vehicle statute. Undeterred, the prosecutor appealed the dismissal. On appeal, the Washington Supreme Court stated:

“RCW 9A.56.065 prohibits theft of a motor vehicle. However, neither the statute nor the criminal code explicitly defines the term ‘motor vehicle.’ Though a plain reading of the term could conceivably include a riding lawn mower, the legislature intended otherwise. Because the act itself denotes a restrained definition, we find that as a matter of law, a riding lawn mower is not a ‘motor vehicle’ for purposes of the theft of a motor vehicle statute.”