Case Law Updates

July 26 – August 6, 2010

Washington State Supreme Court


Death Penalty: The legislature properly delegated authority to DOC to create a protocol for executions.

Brown v. Vail, __ Wn.2d___ (July 29, 2010)
Facts: The appellants were death row inmates who challenged DOC’s three drug protocol for executions.

Held: DOC abandoned the three drug execution protocol in March 2010 and adopted a one drug protocol, making appellants’ argument moot. However, the court addressed appellants’ other arguments. The legislature properly delegated to DOC the authority to establish a protocol for executions.

Harassment: A true threat requires proof that the defendant was at least negligent as to his statements’ effect on listeners. Jury instructions should define true threats.
State v. Schaler, __ Wn.2d___ (July 29, 2010)

Facts: The defendant was convicted of two counts of felony harassment for saying during a mental health exam that he wanted to kill two of his neighbors. However, the jury was not instructed that the defendant’s statements had to be true threats to support a conviction.

Held: A true threat requires proof that the defendant was at least negligent as to his statements’ effect on listeners. In other words, the State must establish that a reasonable person in the defendant’s position would foresee that his statements would be interpreted as a serious expression of intention to carry out the threats. Here, because the jury instructions did not define a true threat, a jury might have convicted the defendant for statements that were not true threats. The error was not harmless.

Judicial Discipline: Judge Eiler violated CJC 3(A)(3).
In re Eiler, __ Wn.2d___ (August 5, 2010)

Facts: Judge Eiler was rude and demeaning to pro se litigants and attorneys in her courtroom.

Held: Judge Eiler violated cannon 3(A)(3) of the Code of Judicial Conduct (CJC), which requires judges to be patient, dignified and courteous. The proper penalty was a 5-day suspension.

Search and Seizure: Probable cause alone will not support a warrantless search. Officers must seek a search warrant unless exigencies make that impractical.
State v. Tibbles, __ Wn.2d___ (August 5, 2010)

Facts: A police officer stopped the defendant’s car for an equipment violation and smelled marijuana. The officer did not arrest the defendant but searched the car and found marijuana. The defendant was not fleeing.

Held: The marijuana should have been suppressed because no exception to the warrant requirement applied to allow the search. Here, the officer could have sought a warrant but did not. The existence of probable cause will support an application for a warrant, but alone it does not support a warrantless search.

Court of Appeals

NGRI: The maximum term a person can be committed for following a finding of NGRI is the statutory maximum sentence for any one of the charged offenses.
State v. Reanier ___ Wash.App.___ (Div I) (August 2, 2010)

Facts: The defendant entered a plea agreement whereby the State amended his charge of second degree assault to two counts of third degree assault. The maximum sentence for third degree assault is 5 years. The court then entered an order of acquittal by reason of insanity and ordered the defendant committed for treatment for 10 years, or two consecutive 5 year terms.

Held: RCW 10.77.025(1) says that, following an acquittal by reason of insanity, the defendant can be committed for a term that does not exceed the maximum sentence. Here, the Court of Appeals held that the five-year maximum sentence for third degree assault was the maximum amount of time the defendant could be committed. The trial court acted illegally when it ran two five year terms consecutively.

Dependency: The Interstate Compact on Placement of Children (ICPC) does not apply to parental placements.
In re Dependency of D. F-M ___ Wash.App.___ (Div I) (August 2, 2010)

Facts: D lived with his mother in Washington, and D’s father lived in Oklahoma. When DSHS sought to limit the mother’s parental rights, D’s father asked to have D live with him in Oklahoma. However, the father’s housing was inadequate under an Oklahoma policy, but not under Washington’s policies. The Washington Court sent D to live with his father in Oklahoma in spite of the housing issue, which resulted in there being no positive interstate compact on placement of children (ICPC) home study.

Held: The ICPC does not apply when a child is placed with that child’s parent, so it was permissible for the court to send D to live with his father in Oklahoma despite the lack of a positive ICPC home study.

Snohomish drug bust highlights mushrooming drug problem