Monday, September 13, 2010

Washington State Law

Washington State Supreme Court

State v. Sanchez Valencia: In this consolidated appeal, the Court overturned a sentencing condition prohibiting the defendants from using items that could be used to ingest or process controlled substances, or to facilitate the sale or transfer of controlled substances. The court found that the action was final and the issue was primarily legal and required no further factual development, and was therefore ripe for review. The Court then reviewed the condition itself, holding that the condition was void for vagueness. In so doing, the Court clarified that the defendants need not overcome a presumption of constitutionality to challenge a community custody condition. The court then noted that the condition was vague because it prohibited the possession of any paraphernalia, not solely drug paraphernalia, and was not only vague but raised the potential for arbitrary enforcement. The opinion may be viewed at:

In his concurrence, Justice James Johnson agreed that the sentencing condition was too vague, and commented that a simple correction to the term paraphernalia to specify "drug paraphernalia" would be sufficient to satisfy due process. The concurrence may be viewed at:

State v. Ervin: In a unanimous opinion, the Court held that two of Mr. Ervin's prior Class C felony convictions washed out for purposes of his sentence for felony violation of a protection order. Specifically, the Court held that the 17 days that Mr. Ervin spent in jail for violating a term of his probation for a misdemeanor did not interrupt the requisite "five consecutive years in the community without committing any crime that subsequently results in a conviction." The court found that the incarceration was not pursuant to a felony conviction and that Mr. Ervin had not committed any crime in the previous five year period.

In re Detention of Hawkins: The Court ruled that the trial court had exceeded its statutory authority in ordering a polygraph examination of Mr. Hawkins regarding his sexual history as part of an evaluation into whether Mr. Hawkins was a sexually violent predator, as alleged by the State in a petition for commitment. The trial court had found that there was probable cause to believe that Mr. Hawkins was an SVP but before the matter was set for a trial the State requested, and the trial court ordered, the contested polygraph examination. The Court concluded that RCW 71.09.040 does not specifically authorize compulsory polygraphs as part of an SVP evaluation, and it is therefore reasonable to presume that the legislature intended to prohibit their use. In so holding, the Court noted that polygraphs are unreliable, inadmissible in a trial, and invasive both physically and of one's private affairs, considerations of which the legislature was doubtless mindful in drafting the statute at issue.

In her dissent, Justice Stephens, joined by Justices Fairhurst and Madsen agreed that polygraphs are invasive and unreliable tools that are disfavored in our legal system, but argued that the legislature intended that the Department of Social and Health Services should determine how best to evaluate SVPs, and to this end the law grants DSHS authority to regulate pretrial evaluations. Nothing in the law limits DSHS's authority to prescribe what tools or methods are appropriate in conducting an evaluation, and therefore, the dissent argued, no method of evaluation should be proscribed that otherwise falls within the ambit of permissible methods of evaluation, as does a polygraph.

Division One Court of Appeals

State v. Abrahmson: The court held that under the plain language of RCW 37.12.010 the State assumed jurisdiction over all criminal offenses committed by Native Americans while operating a motor vehicle on public roads on a reservation, and therefore affirmed Spokane Tribe member Abrahmson's conviction of DUI, attempting to elude, and driving while license revoked committed on the Tulalip Indian Reservation.

Division Two Court of Appeals

State v. Raleigh: The Court upheld a jury verdict finding Mr. Raleigh guilty of unlawful possession of a firearm, finding that the State proved possession beyond a reasonable doubt because the firearm "(1) was a gun in fact and could have been made operable, and (2) sufficient evidence supports his conviction because the State proved his possession of the firearm." Mr. Raleigh was stopped in the area of a residential burglary, and a subsequent search of the car in which he was riding uncovered a box containing two toy guns and one real gun that appeared to have been sitting in water for a significant period of time, as it was "pitted and rusty." One of Mr. Raleigh's co-defendants admitted to ownership of the box, but another testified he had seen Mr. Raleigh place the box in the vehicle the morning of the burglary. The Court concluded that the Rencuenco decision did not overrule Faust's requirement that a gun be a gun in fact, and did not require that the gun also be operational. Further, the court found that the State actually proved that the gun in this case could be made operational.

Division Three Court of Appeals

State v. Hawkins: The court held that the defense of good faith claim of title does not apply to possession of stolen property cases. Rather, that defense by its very terms applies to a prosecution for theft, not to theft-related crimes such as possession of stolen property. The court also found that the trial court erred in excluding evidence concerning that motive for Mr. Hawkins' in-laws to frame him for the crime, but concluded that the error was harmless, as the motive was available only on the two counts for which Mr. Hawkins was acquitted.

Federal Law

Ninth Circuit Court of Appeals

Kittel v. Thomas: Mr. Kittel, filing pro se, challenged a Bureau of Prisons rule that categorically excludes from an early release incentive program prisoners whose offenses of conviction involved firearms possession. The Court affirmed the District Court dismissal of the petition, noting that the petition was moot in light of the decision in Arrington, which held that the rule at issue was procedurally invalid under the APA because the BOP did not adequately provide a rationale for the adoption of the rule. Since filing the petition, Mr. Kittel had qualified for and been granted early release.

Armstrong v. Schwarzenegger: Defendants in this case denied any responsibility for making accommodations for prisoners and parolees under the ADA, claiming that regulations implementing the ADA, which make explicit that an entity cannot avoid its ADA obligations by operating “through contractual, licensing, or other arrangements” with third parties, 28 C.F.R. § 35.130(b)(1), are “manifestly contrary to the” ADA. The Court found that the defendants claims were without merit and upheld the District Court order requiring the defendants to make reasonable accommodations to prisoners and parolees that are housed in county jails. However, the Court found that the specific relief ordered by the district court could not be affirmed because there was insufficient evidence to justify that relief.

United States v. Crews: Holding that a conviction under Oregon's second degree assault statute is a crime of violence under the Sentencing Guidelines' residual clause, the Court affirmed Mr. Crews' conviction and sentence. In so holding, the court concluded that “[i]ntentionally or knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon,” the definition of second degree assault in the State of Oregon “otherwise involves conduct that presents a serious potential risk of physical injury to another,” as required under the sentencing guidelines, and likewise involves purposeful, aggressive conduct.

Rhodes v. Robinson: The Court found that the district court erred in dismissing several of Mr. Rhodes' claims as unexhausted under the Prison Litigation Reform Act (PLRA), as the exhaustion requirement of the PLRA is satisfied as long as Mr. Rhodes exhausted his administrative remedies with respect to the new claims asserted in his SAC before he tendered that complaint to the court for filing. As Mr. Rhodes asserted that he did so, and this assertion was not contradicted by the record, the district court should not have dismissed the claims.

Thompson v. Runnel: The Court held that when police deliberately withheld Mr. Thompson's Miranda warnings until after he confessed to the charged crime, the later reading of the warnings was rendered ineffective. The Court found that the subsequent use at trial of Mr. Thompson's confession was prejudicial and constitutionally infirm, and reversed the district court's denial of Mr. Thompson's petition for a writ of habeas corpus.

In his dissent, Judge Ikuta argued that Mr. Thompson's confessions were voluntary and the mere fact that they were preceded by a period of questioning before Miranda was read did not render the confessions inadmissible.

Heishman v. Ayers: The Court affirmed the denial of Mr. Heishman's appeal from his petition for a writ of habeas corpus claiming ineffective assistance of counsel during the penalty phase and prosecutorial misconduct during the guilt phase of trial. The court found that the failure of the prosecution to correct the false testimony of the prosecution's key witness concerning the scope of her prior criminal activity and remuneration for her testimony and the prosecutor's failure to turn over material concerning that witnesses' past that would have been relevant for impeachment purposes did not, and could not have, changed the verdict against Mr. Heishman. The court also found that defense counsel's alleged failure to begin sentencing investigations until two months prior to sentencing hearings was not deficient, and counsel's alleged failure to follow through with a psychological evaluation of Mr. Heishman was not prejudicial.

In his concurrence, Judge Silverman noted that there was no evidence that the psychologist would have uncovered the mitigating circumstances Mr. Heishman alleged existed if he were in fact examined by the psychologist at the time of trial in this case. The decision and concurrence may be viewed at:

United States v. Bennett: The Court found that there was insufficient evidence to support Mr. Bennett's conviction for bank fraud for allegedly fraudulently procuring mortgages from Equicredit Corporation, a wholly-owned subsidiary of Bank of America (BOA) for his fraudulent house flipping scheme. Specifically, the Court held that there was no evidence that BOA had custody or control of its subsidiary's funds, and the government could therefore not prove that Mr. Bennett fraudulently obtained assets owned by a financial institution, as Equicredit itself was not a financial institution.

In his dissent, Judge Callahan argued that the funds obtained from Equicredit were in fact under the custody and control of BOA even if BOA did not actually exercise actual control over Equicredit. BOA owned 100% of Equicredit's shares and could exercise some control over its subsidiary. The dissent argued that the conviction should have been affirmed.

United States v. Espinoza-Morales: The court found that Mr. Espinoza-Morales' prior conviction for sexual battery and his conviction for penetration with a foreign object under the California Penal Code did not constitute crimes of violence warranting a 16-level sentencing enhancement for the crime of illegal re-entry following deportation. The Court concluded that neither the crimes themselves constituted crimes of violence, and the facts of the underlying offenses did not constitute violent crimes at federal law. The Court reversed the sentence and remanded for re-sentencing.

In his dissent, Judge Walter disagreed after a review of the facts of the underlying convictions that they could correctly be categorized as non-violent crimes. The dissent pointed out that the facts showed violence in the acts committed by Mr. Espinoza-Morales, and argued the sentencing enhancement was proper.

In Other News:

Revised Code of Judicial Conduct: On September 10, 2010, the Washington State Supreme Court adopted a revised code of judicial conduct, the first major revision of the rules governing judicial behavior since 1995. Changes to the code include rules addressing the recusal of judges based on monetary contributions to campaigns and the reinstatement of the rule requiring judges to refrain from the “appearance of impropriety” standard to promote public confidence. The revised code may be found online at: