Senate Minority Leader Says Pot Kills, OK in Pill Form

Senate Minority Leader Mitch McConnell chimed in as to his reason for not backing medical marijuana — because people die from marijuana. (Luckily, no asked about his thoughts as to masturbation, as it leads to hairy palms and blindness.)

 According to The Huffington Post, McConnell was answering a letter from a constituent who questioned the senator about medical marijuana.

He not only voiced his concern about medical marijuana legislation introduced by Rep. Barney Frank because pot kills but that one of the ingredients of pot, tetrahydrocannabinol, is available in pill form for the treatment of some illnesses.

 "Because of the harm that substances like marijuana and other narcotics pose to our society, I have concerns about this legislation. The detrimental effects of drugs have been well documented: short-term memory loss, loss of core motor functions, heightened risk of lung disease, and even death," he stated.

 So not only does McConnell believe that marijuana could kill, no doubt "Reefer Madness"-style, but that you should also take a pill instead of growing your own. Interesting, to say the least.

A Tale of Two States: While Pro-Pot Initiative to Hit Washington's Ballot, California Legalization Efforts in Disarray

In contrast to Washington state's well-organized initiative to legalize pot, California's efforts are split between four potential proposals.

 Pro-pot groups in the Golden State felt emboldened by the 42 percent of voters who supported legalization the last time it was on the ballot in 2010.

However, their efforts have split into four factions, whose stand on the issue range from codifying and setting up an enforcement agency for existing medical marijuana laws to outright legalization of cannabis for recreational use.

 Less than 10 percent of the medical marijuana industry is contributing to the causes, the Los Angeles Times reports. Speculation for the reasons behind the lack of support include apathy, the fear of more competition with downward pressure on prices and ongoing federal raids against the businesses.

 Monied backers who supported California's legalization efforts are also less likely to back the new efforts. Instead, they're more likely to put their cash behind the initiative in Washington because its already been OK'd to appear on the state's ballot.

Legalize It, Says... Pat Robertson?

Televangelist and Christian Coalition founder Pat Robertson has a history of saying a lot of kooky things on TV. Hurricane Katrina was an act of God against America's sins and claimed that Haiti's earthquake was related to the country's supposed pact with the devil, just for starters.

 However, Robertson raised even more eyebrows for saying something sensible for once — marijuana should be legalized and that federal and state anti-drug laws are draining billions of dollars from the nation's coffers.

 "Folks, we've gotta do something about this. We've just got to change the laws. We cannot allow this to continue. It is sapping our vitality. Think of this great land of freedom," he said.

 Predictably, anti-drug advocates were not swayed by Robertson's appeal.

 "Clearly he is ill-informed about the drug war," Calvina Fay, executive director of the Drug Free America Foundation, told The Christian Science Monitor.

 However, Robertson's comments have left many agreeing with the "700 Club" host for the first time.

DUI Detail in Proposed Washington State Legalization Initiative Sparks Debate Among Marijuana Supporters

Marijuana legalization proponents are at odds with each other over the issue of driving — driving under the influence, that is.

Washington state's current proposal to legalize marijuana would set the threshold for driving under the influence of pot at five nanograms of THC per millimeter of blood. However, many medical marijuana patients and stoners are finding their blood levels are normally at least twice the legal threshold.

Proponents of the initiative believe the historic nature of the Washington being the first state to legalize marijuana outweighs the details regarding the DUI issue.

 "It's just not reality that officers will start pulling over people randomly, illegally arresting them, and taking them in to get blood draws," Alison Holcomb, campaign director for New Approach Washington, the political action committee behind the initiative, told the Seattle Weekly.

 But marijuana users face the possibility of never getting their THC under the proposed law's threshold, even after staying away from weed for extended periods. Research shows that THC levels go up to over 50 nanograms with one hit of pot, with detectable levels of the chemical lingering in the blood long after that.

Pullman OKs Regulations for Medical Marijuana Cultivation — But Requires DEA OK for Growers

On first glance, Pullman, Wash.'s medical marijuana regulations seem reasonable. The location of where medical marijuana is being grown needs to be be registered with the city, in addition to anyone using the plants.

However, further down the ordinance it's revealed that the registration is contingent on a written letter from the DEA stating that the operation is in compliance with federal law.
The DEA, of course, has no plans to authorize medical marijuana growers in Pullman, or anywhere for that matter.

Why the impossible requirement? A classic case of bureaucratic CYA. Federal officials have threatened to prosecute anyone — including state officials — who sanction medical marijuana.

"Once the federal government and state governments resolve their conflict, now the city has a system in place for licensing and registration," City Attorney Laura McAloon told the Standard-Examiner. "And it still protects the city from any federal issues."

Federal Judge to Medical Marijuana Collectives: Screw You and the Promise Obama Rode in On

A federal judge in Sacramento threw out a lawsuit contesting the recent medical marijuana crackdown by U.S. Attorneys the SFGate reports.

 Advocates claim that President Obama's promise to leave dispensaries and growers alone in a Justice Department memo if they complied with the medical pot laws of their respective states was broken.

However, Judge Garland Burrell said the memo "does not contain a promise not to enforce." He also called the it a "statement of priorities," that federal laws regarding drug production and distribution were still valid and that appeals courts and the Supreme Court do not recognize a constitutional right to marijuana for the terminally ill.

 Though other judges ruled in a similar manner, they have not dismissed the lawsuits in their courts. Another lawsuit filed by Americans for Safe Access argues that the federal government is violating the state of California's constitutional authority to mandate its own health policies.

California Assemblyman Ammiano Proposes State Bill to Regulate Medical Pot

California Assemblyman Tom Ammiano (a Democrat representing San Francisco) introduced a law that would regulate medical marijuana dispensaries statewide.

 The bill, A.B. 2312, would allow "collectives, cooperatives, and other business entities to cultivate, acquire, process, possess, transport, test, sell, and distribute marijuana for medical purposes." The bill would also punish doctors who write bad patient recommendations with a misdemeanor offense, set up a government body to oversee the enforcement of the law and limit one collective per city of 50,000, The Huffington Post reports.

 Unfortunately, the bill stands little chance of passing. Gov. Jerry Brown has not signed any pro-pot legalization into law and it's generally accepted that he won't.

 Ammiano is a long time advocate of medical marijuana and access for patients. He's called for U.S. Attorneys to end their campaign to close dispensaries and met with them to personally question the closures.

Marijuana Shop Owner Outraged Over Possible Porn Neighbor

The owner of Studio City, Calif. medical marijuana dispensary Perennial Holistic Wellness Center, Inc., contacted Patch.com with a concern about his neighborhood.

 Perennial Holistic Wellness Center, Inc. is about to have an adult book store as a new neighbor. The owner is concerned that the adult book store will bring an increase in crimes, sex crimes in particular.

He cited an earlier sexual assault in the area and an act of vandalism he claims to have seen as proof that a porn shop in the area is a bad idea.

 You know, like how people who don't like pot say that pot shops lead to more crime and drug dealing.

"Tonight's incident and the first sexual assult [sic] in Studio City in many years, last year near the Shell on Ventura Place is more proof positive that an adult book store is not the right thing for this community," he wrote.

What's interesting is that the so-called "secondary effects" that anti-porn groups cite are in dispute. They're not unlike the arguments anti-legalization groups make about dispensaries, which were dispelled by a RAND Corp. study (much to the dismay of the City of L.A.).

Seattle's Mayor Calls for Marijuana Legalization in State of the City Address

Seattle Mayor Mike McGinn dares to utter the truth that marijuana advocates know and that anti-drug crusaders fear: illegal drugs fund criminals, reports NPR affiliate KPLU.

 In his State of the City address, McGinn states:

 “It is time we were honest about the problems we face with the drug trade. Drugs are a source of criminal profit, and that has led to shootings and even murders. Just like we learned in the 1920s with the prohibition of alcohol, prohibition of marijuana is fueling violent activity." 

 McGinn also calls on Washington state to legalize marijuana to end the erosion of civil liberties. He also remarked that though Seattle has taken a progressive stance on marijuana, federal anti-drug laws in place continue to fuel violence.

 Mayor McGinn's example shows that legalization will ultimately be a bottom-up process, rather than coming from Washington.

Obama Reversed Course Because Medical Marijuana Policy Too Successful

Kevin Drum, political blogger for Mother Jones magazine, plays connect the dots with President Obama's about-turn on medical marijuana.

 Citing coverage in The Rolling Stone, Drum points to holdovers from the Bush administration in the Drug Enforcement Administration but is quick to point out the U.S. Attorneys sending seizing property and money in California and Washington don't answer to or take orders from the DEA.

Drum adds that while the current administration maintains its position is "clear and consistent," its actions threatens to alienate the youth vote that voted the president into office.

 In an update, Drum floats a theory by The New Republic's Tim Fernholz that Obama reversed his stance on medical marijuana when state governments requested information on licensing growers and distributers.

Washington State's Legislature Refuses to Clarify Legal Status of Dispensaries

Though storefront medical marijuana operations can be found in Seattle and Tacoma, their existence is cloaked in a legal gray zone.

An attempt to legalize medical dispensaries, such as those found in California, is dead in the state legislature despite the best efforts of outspoken access advocate Sen. Jeanne Kohl-Welles, a Democrat from Seattle.  "The bottom line is, it was very difficult to reach a full consensus. There wasn’t as much momentum and interest as there was last year," Kohl-Welles told The Seattle Times.

The bill would have established the legality of 105 dispensaries in Seattle, as well as establish a patient registry.

The hopes of medical access advocates now rests on the state of Washington's initiative to legalize the recreational use of pot.

The Greater Los Angeles Collective Alliance Seeks Tighter Regulation of Medical Pot Industry

Though the Greater Los Angeles Collective Alliance only lists 13 collectives as members of its organization, it's become one of the leading voices for pot shops in the city.

When the city council meets about anything related to their interests, the GLACA is there. Recently, with U.S. Attorneys threatening action against local landowners and local governments that support medical marijuana, the city council's stance on the issue is to shut all the establishments down. In response, the GLACA has proposed tight regulations on the medical marijuana dispensary community with a government enforcement arm to back it up, the L.A. Weekly reports.

While the GLACA's stance on the issue seems contradictory to their mission, when examined closer it reveals perhaps the only way to save safe and legal access in L.A. The organization is currently seeking signatures to place its proposal on the ballot.

Profitable Collectives do Not Violate the Law, California Medical Marijuana Author Says

U.S. Attorneys shutting down medical marijuana collectives in California more often that not use the talking point of "profitability" as if it was a four letter word.

However according to the author of the state's medical marijuana law, former state Senator John Vasconcellos, a profitable collective doesn't mean it's breaking the law. In fact, according to the law he authored, there's no requirement that the dispensary be non-profit, reports the L.A. Weekly.

In a letter to clarify the issue, he wrote:

Nothing in that section prohibits profit. Nothing in that section explicitly authorizes profit, either. But I must point out that nobody is required to obtain an "authorization" from the Legislature to make a profit in California. 

... the language does not in any respect purport to prohibit profit ~ if that had been the intent, the language would have so stated clearly. It obviously does no such thing.

Washington Punts Legalized Marijuana Question to Voters

The Washington legislature refused to act on a voter-backed initiative to legalize the recreational use of marijuana in the state, leaving the decision up to the voters in November.

If passed, the law would be the first in the nation to OK the recreational use of the drug. Similar voter initiatives in other states, such as California and Oregon, are taking place but none have been able to secure the number of signatures to bring the issue to the ballot.

Support for relaxing the use of marijuana comes from unlikely corners, including former law enforcement officials. The Seattle Times reports Charles Mandigo, the former head of Seattle's FBI field office, testified, "It is the money, not the drugs, that drive these criminal organizations and street gangs. Take away the money and you take away the criminal element."

If passed, the law would allow Washington residents 21 and over the right to purchase dried marijuana, marijuana in edibles and marijuana-infused drinks. The state would impose a 25 percent tax on processors, growers and stores.

After a Long String of Legal Persecution, Guy Casey Calls it Quits for Dispensaries

The Seattle Weekly profiles a medical marijuana dispensary co-owner walking away from his business because of constant harassment by law enforcement.

 The woes of Guy Casey, former co-owner of Tacoma's North End Club 420, began with a raid by WestNet, a federally funded anti-drug task force.

WestNet's tactics have been criticized as heavy handed — in Casey's case, the cops handcuffed his 14 year old son and confiscated the cash from his 9 year old daughter's Mickey Mouse purse, then seized 10 pounds of marijuana for his dispensary. Distribution charges were ultimately dropped, but the pot was not returned to the dispensary.

North End Club 420 was later raided by federal agents. Ultimately, Casey said, "I don't need any felonies." However, Casey plans on opening a collective garden, a legal co-op that allows 10 members to grow their marijuana together.

Medical Marijuana Owners Gaze into a Pro-Pot Future

Medical marijuana dispensary owners opined about life after legalization in a recent article in the West Seattle Herald.

 Despite the move toward wholesale legalization with Initiative 502, John Davis, owner of the Northwest Patient Resource Center, speculated that marijuana shops and medical marijuana dispensaries will remain separate businesses because medical use and recreational use are not compatible.

 The owner of Herban Legends, Chris Cody, also hoped the two businesses would be regulated separately, because he feels patients should not have to pay the proposed 25 percent tax that will be levied on non-medical pot.

 There's also confusion as to how marijuana would work as a Schedule 2 drug (which the DEA deems as having medical applications) instead of a Schedule 1 (which the DEA feels has no medicinal value). Both agree distributing through pharmacies will be the sticky point, with Davis pointing out that existing pharmacies do not have knowledge of different strains and that dispensaries may have to become licensed pharmacies. Cody added that there is no infrastructure in place for national pharmacy chains to properly dispense medical pot.

Marijuana Proponents Bet on Changing Demographics for Legalization

The Chicago Tribune examines the efforts behind Washington's movement to legalize marijuana (as well as Colorado's) and the chance it has to become law.

An October Gallup Poll places the number of Americans who support legalization at 50 percent, a record high, and among adults 18 to 29 support rises to 62 percent. Those speaking for legalization include Seattle's City Attorney, Peter Holmes.

Holmes said, "Right now in Seattle, we're feeling that it's a bit unfair that we are being tolerant of medical marijuana users, when other localities are not, because we tend to become suppliers for the whole state rather than our own citizens."

If Washington legalizes pot, sales would be restricted to those aged 21 or older. Stores that sell the drug would be controlled by the state's Liquor Control Board and laws regarding intoxicated driving would include provisions for maximum blood levels of THC.

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

State v. Perez-Valdez: The Court affirmed Mr. Perez-Valdez’s conviction for one count of second degree rape of a child and one count of third degree rape of a child, finding proper two evidentiary decisions made by the trial court. The Court determined that the defense called witnesses who testified to Mr. Perez-Valdez's reputation for good moral character and, though the State failed to object at the time, it later argued that a general reputation for good character is not pertinent under ER 404(a)(1) to a specific element of the charged crime, rape of a child. The Court thus found proper the trial court’s action in preventing the defense from presenting argument about evidence that, upon later objection, the court deemed to be inadmissible. The Court also found proper the trial court’s denial of Mr. Perez-Valdez’s motions for a mistrial based on a statement made by a state witness relating to the credibility of the victims. http://www.courts.wa.gov/opinions/pdf/840032.opn.pdf

In a dissent, Justice Wiggins argued that the evidence sought to be entered by the defense, testimony about an arson committed by the accusers in this case, was sought to be used as evidence of motive to fabricate allegations against Mr. Perez-Valdez. The dissent argued that Mr. Perez-Valdez was erroneously prohibited from introducing admissible evidence to challenge the alleged victims' credibility. The dissent argued that the evidence was relevant to show that the alleged victims had a motive to lie, and the defense should have been allowed to present this evidence due to the presumption of innocence and requirement of proof beyond a reasonable doubt. The dissent posited that this evidence was particularly necessary when the conviction rested upon uncorroborated testimony of two teenagers, as in this case. http://www.courts.wa.gov/opinions/pdf/840032.no1.pdf

State v. Franklin: The Court found that the 2009 legislation requiring sentencing courts to reduce the term of community custody when the total terms of confinement and community custody exceed the statutory maximum do apply retroactively to cases such as Mr. Franklin’s. However, the Court also concluded that the legislature in writing the law charged the Department of Corrections, not the sentencing court, with adjusting the length of community custody for those serving terms of confinement or community custody by modifying the end date for community custody. Thus, the Court concluded that Mr. Franklin was not entitled to resentencing by the trial court and affirmed the Court of Appeals. http://www.courts.wa.gov/opinions/pdf/845450.opn.pdf


Division Two Court of Appeals

State v. Ramirez-Estevez: In this partially published opinion, the Court affirmed Mr. Ramirez-Estevez’s conviction on five counts of first degree child rape. The Court agreed that the trial court erred by admitting as an excited utterance the hearsay testimonies of a school counselor and of the victim’s aunt that the victim told them that Mr. Ramirez-Estevez raped her was error. The court reasoned that though recalling the rapes was highly stressful and upsetting for the victim, and that the victim's understandably excited emotions appeared to have been the result of reliving and relating these past traumatic events to these apparently trusted adults, however the Court observed that the recollection happened nearly two years after the rapes occurred and, because of this prolonged delay, the victim’s statements did not constitute the type of excited utterance made under the stress of the event that are admissible under ER 803(a)(2). However, the Court found the error harmless and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/40226-2.11.doc.pdf


Federal Law

Ninth Circuit Court of Appeals

James v. Schriro: The Court granted Mr. James’ writ of habeas corpus with respect to his death sentence. The Court found that Mr. James was denied effective assistance of counsel in the penalty phase, concluding that counsel’s complete failure to investigate and present mitigating evidence of Mr. James’s troubled childhood, his mental illness, and his history of chronic drug abuse constituted deficient performance. We further conclude that this failure prejudiced Mr. James because it prevented the sentencing judge from learning that Mr. James had “the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” However, the Court affirmed the trial court’s denial of relief with respect to Mr. James’ claimed Brady claim wherein he argued that the state failed to disclose an oral plea agreement with a co-defendant under which the co-defendant agreed to testify against Mr. James. The Court also denied relief with respect to Mr. James’ claims that the state failed to correct false testimony of his co-defendant that denied the existence of this agreement. The Court instructed the district court to grant the state a reasonable amount of time in which to resentence Mr. James and, if the state chooses not to resentence, ordered that Mr. James’ sentence to automatically be converted to life in prison in accordance with Arizona law. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/12/08-99016.pdf

United States v. McEnry: The Court vacated Mr. McEnry’s sentence on his guilty plea to serving as an airman without an airman’s certificate. The Court reasoned that the trial court selected the incorrect guideline under which to sentence Mr. McEnry, and that the trial court further relied upon uncharged relevant conduct in selecting the applicably guideline. Thus, the Court found, the trial court had incorrectly calculated Mr. McEnry’s Guidelines range. The Court remanded for resentencing under the correct guideline range. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/10-10433.pdf

United States v. Reyes: The Court affirmed Mr. Reyes’ conviction in a second criminal trial for (1) securities fraud and making false filings with the Securities and Exchange Commission (SEC) (2) falsifying corporate books and records; and (3) making false statements to auditors. The Court was unpersuaded by Mr. Reyes’ arguments that his conviction should be vacated due to prosecutorial misconduct, insufficient evidence, and various evidentiary and instructional errors at trial. The Court found that Mr. Reyes did not establish prosecutorial misconduct through the government’s use of evidence showing that Mr. Reyes personally profited from the backdating of stock options while he served as CEO of Brocade, as the evidence that was not false, and the Government did not impermissibly ask the jury to draw false inferences from the evidence presented at trial. The Court further found that evidence of the profits made from the scheme was not irrelevant and did not unfairly prejudice the jury. The Court found that the government introduced the evidence to permit the jury to draw a reasonable inference that Mr. Reyes knew what he was doing and how the scheme operated to his benefit. Further, the Court found no misconduct in the government’s questioning of two witnesses to elicit testimony regarding the company’s options-pricing process and governance and compensation practices. The Court found that the testimony was not false or that the government sought to draw improper inferences based on its admission. The Court also concluded that the trial court did not abuse its discretion in admitting Prior Case Evidence to show that Mr. Reyes understood that he was engaged in illegal conduct and that the statements were relevant because they were inconsistent with Mr. Reyes’s position at his second trial and to his guilty state of mind. The Court likewise found no plain error in the introduction of evidence that Mr. Reyes, in his role as CEO, signed the financial statements and representation letters which formed the basis of the Government’s charges that Mr. Reyes falsified Company books and records, and lied to Company auditors. The Court found no error in the rejection of proposed jury instructions as well, including an instruction that a corporate officer is not criminally responsible for the acts of subordinates. The Court found that the district court had discretion to refuse to give a separate instruction regarding the defense’s theory where “other instructions, in their entirety, adequately cover that defense theory.” Finally, the court found that there was sufficient evidence to support the conviction, and that the prosecution did not improperly suggest to the jury that it could find materiality based on proxy-voting decisions, and disagreed that the district court erred because it did not give an instruction that would prevent the jury from being mislead. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/10-10323.pdf

United States v. Urena: The court upheld Mr. Urena’s conviction for assault with a dangerous weapon and possession of contraband in prison. The Court held that the district court did not abuse its discretion by refusing to instruct the jury on his theory that he acted in self-defense, finding that Mr. Urena did not use commiserate force when he stabbed a man in retaliation for calling him a “bitch” in prison, and that even if the other man was armed, it was clear that Mr. Urena was the attacker and could not avail himself of the self-defense instruction. The Court also held that the district court did not violate his Confrontation Clause rights by refusing to allow him to cross examine the treating physician about the cause of the victim’s injuries, holding that the district court’s limitations on cross-examination did not limit relevant testimony, prejudice Mr. Urena, or deny the jury sufficient information to appraise the biases and motivations of the witness. The Court concluded that Mr. Urena was able to cross-examine the doctor regarding the issues on which he testified, and did not have a right to examine him regarding additional issues. Next, the Court held that the district court did not err in refusing to let him designate the treating physician as his expert witness on causation during the trial, finding that Mr. Urena could have hired his own expert or designated an expert prior to trial, but did not do so. Finally, the court found that the sentence was not unreasonable, as the district court sentenced him under the guidelines that were in effect at the time that he was sentenced. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/09-50285.pdf

United States v. Carper: The Court affirmed Mr. Carper’s sentence of three years’ imprisonment for unlawfully exporting PVS-14 Gen 3 night-vision devices (“PVS-14 devices”). The Court ruled that the district court correctly interpreted the Guidelines in calculating Mr. Carper’s three year sentence. The Court reasoned that the district court followed the sentencing guidelines, and did not abuse its discretion in declining to make a downward variance to the guidelines. The court noted that the district court explained that it had considered all of the factors in the guidelines and did grant a downward departure to Mr. Carper’s sentence. The Court deferred to the district court decision. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/14/10-10517.pdf

Case Law Update, Week Ending 9-23-11

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

Personal Restraint of Talley: The Court held that former RCW 9.92.151 (2004) requires a county jail to provide opportunities for an inmate who is yet to be sentenced to earn credit toward early release, also known as "good-time" credit. As the Skamania County Jail and the Department of Corrections did not provide such opportunities to Mr. Talley prior to his criminal conviction, the Court held that the entities were in violation of former RCW 9.92.151, and that Mr. Talley was entitled to good-time credit at the statutory maximum rate of 15 percent. Mr. Talley also argued that the policy violated the equal protection clause of the United States Constitution; however, the Court did not reach that argument. http://www.courts.wa.gov/opinions/pdf/832846.opn.pdf

Personal Restraint of Rhome: The Court held that the state and federal constitutions do not require independent findings of fact that a defendant is competent to waive counsel and represent himself at trial. The Court rejected Mr. Rhome’s arguments that the sixth and fourteenth amendments to the federal constitution and the due process clause in the state constitution authorized a separate inquiry into his mental competency, and failure to do so constituted a violation of his rights under those amendments. The Court reasoned that relevant case law imposed no such standards, but merely did not find fault with courts that undertook such an inquiry, and that mental health status is but one factor that may be considered in determining the validity of a waiver. The Court further found that the trial court’s colloquy in this matter, during which the trial court advised Mr. Rhome of the risks of representing himself and ensured he understood the significance of the undertaking were sufficient to secure a valid waiver of counsel, notwithstanding that the court did not address Mr. Rhome’s known mental health issues during the colloquy. http://www.courts.wa.gov/opinions/pdf/837881.opn.pdf

State v. Caldwell: Mr. Caldwell and co-defendant John Gordon were each charged with second degree murder with two aggravating factors, deliberate cruelty and particular vulnerability of the victim. The jury was instructed to determine whether the aggravators were present, but the instructions did not define "deliberate cruelty" or "particular vulnerability." The defendants did not object to the instructions on that basis, and were found guilty of the crime and the aggravators applied. On appeal, the court found that the failure to provide detailed instructions defining the meaning of "deliberate cruelty" or "particular vulnerability" was not a manifest error of constitutional magnitude that may be addressed for the first time on appeal. The Court reversed the Court of Appeals’ alternate ruling, finding that the lower court mistakenly relied upon Apprendi and Ring to hold that the error could be characterized as failing to properly instruct on an element of the aggravated crime. The court reasoned that Apprendi and Ring do not dictate the level of detail required in an instruction setting forth aggravating factors, the statue at issue in this case does not define or elaborate on the meaning of “deliberate cruelty" or "particular vulnerability," and the jury instructions follow the statute. The omission of additional terms is not an error of constitutional magnitude. http://www.courts.wa.gov/opinions/pdf/842400.opn.pdf


Division One Court of Appeals

State v. Strizheus: The court affirmed the trial court’s exclusion of other suspect evidence that Mr. Strizheus claimed established that his son Vladimir committed the crime of attempting to murder Mr. Strizheus’ wife, and Vladimir’s mother, Valentina. The Court found that Mr. Strizheus did not meet his burden of showing facts or circumstances clearly pointing to Vladimir as the person who committed the crime. The Court reasoned that there was no evidence establishing a nexus between Vladimir and the crime, no physical evidence connecting Vladimir to the crime, no eyewitness testimony placing Vladimir at the scene, and no identification of Vladimir by Valentina as her attacker. In fact, the only evidence Mr. Strizheus relied upon was a statement made by his son when his son was admittedly intoxicated, and which his son later recanted. http://www.courts.wa.gov/opinions/pdf/64077-1.pub.doc.pdf

State v. Peters: The Court reversed and remanded for a new trial charges against Mr. Peters, who had been accused of felony murder in the second degree based on the predicate offense of assault and manslaughter in the first degree with a firearm, as a result of the shooting death of his six year old daughter. The jury had also been instructed on the lesser-included offense of manslaughter in the second degree The jury found Mr. Peters not guilty of felony murder but guilty of manslaughter in the first degree. However, the trial court erroneously instructed the jury that in order to convict Mr. Peters of manslaughter in the first degree, the State need only prove that he knew of and disregarded "a substantial risk that a wrongful act may occur," rather than "a substantial risk that death may occur." The Court found that the jury instruction was not harmless beyond a reasonable doubt, and the uncontroverted evidence did not establish that Mr. Peters knew of and disregarded a substantial risk that death may occur. http://www.courts.wa.gov/opinions/pdf/64568-4.pub..doc.pdf

State v. Read: The Court found that there was sufficient evidence to uphold Mr. Read’s conviction for malicious harassment when Mr. Read was found to have used “virulent racial epithets” coupled with aggressive and intimidating conduct when confronting an Ethiopian parking lot attendant regarding a ticket he had been issued for parking over two spaces in a restaurant parking lot. After calling the victim a nigger, blaming her for the issuance of the ticket, making advances toward her on foot and then in his vehicle, the victim hid, terrified in the bushes and called 911 for police assistance. The Court found that this record established that Mr. Read intentionally and maliciously harassed the victim because her race, ethnicity, or national origin. http://www.courts.wa.gov/opinions/pdf/65064-5.pub..doc.pdf


Division Two Court of Appeals

State v. Corona: The Court reversed and remanded Mr. Corona’s case for a new sentencing hearing, as the court had imposed a $3,000.00 drug clean-up fine after convicting Mr. Corona of delivery involving less than two kilograms of methamphetamines. The Court found, in agreement with the State’s concession on the matter, that the trial court abused its discretion when it imposed the fine, as it erroneously believed that the fine was mandatory. However, under RCW 69.50.401, such fine is discretionary in offenses such as the one of which Mr. Corona was convicted. http://www.courts.wa.gov/opinions/pdf/41436-8.11.doc.pdf


Division Three Court of Appeals

State v. Guerrero: In this partially published opinion, Mr. Guerrero appealed the denial of sentencing under the drug offender sentencing alternative (DOSA). The Court found no error in the trial court’s refusal to impose the DOSA sentence. The Court further found that no chemical dependency screening was required, contrary to Mr. Guerrero’s argument, under the DOSA statutes, and the trial court did not commit error in failing to order such a screening. http://www.courts.wa.gov/opinions/pdf/289711.opn.doc.pdf

State v. Santos: The Court reversed Mr. Santos’ felony DUI conviction and remanded for entry of a conviction and sentence for gross misdemeanor DUI. The Court found that the State did not prove that Mr. Santos and the person named in documents purporting to show four prior DUI convictions were one and the same. The Court reasoned that the fact of the prior offenses is an essential element of felony DUI that the State must prove beyond a reasonable doubt, as this is the distinguishing factor between felony and misdemeanor DUI. Though the State introduced into evidence certified copies of four DUI judgments to show that Mr. Santos had prior offenses within ten years, generally accepted as the best evidence of a prior conviction, the Court found, based on prior precedent in bail jumping cases that those certified copies must also show beyond a reasonable doubt that “the person named therein is the same person on trial.” The showing, the Court found, cannot be based on the certified copy of the judgment, but must be based on independent evidence that "the person named therein is the defendant in the preset action," such as booking photographs or fingerprints, eyewitness identification, or distinctive personal information.In the present case, the Court determined that no evidence linked Mr. Santos to the prior DUI judgments: none of the information could be compared to Mr. Santos by simple observation and none could be compared to any other independent evidence that could be linked to Mr. Santos. The Court observed that the State had produced no evidence of Mr. Santos’ address, birth date, or other criminal history. No photographs of the person named in the judgments were produced to compare to Mr. Santos at the trial. The Court held this evidence was insufficient to establish the felony element of felony DUI. http://www.courts.wa.gov/opinions/pdf/289834.opn.doc.pdf

State v. Chacon Arreola: The Court reversed Mr. Chacon Arreola’s DUI, finding that the stop for a modified muffler was pretextual in violation of the Washington Constitution. A patrol officer had followed Mr. Chacon Arreola’s vehicle for over half a mile because it fit the description of a car reportedly driven by a suspected drunk driver. No details regarding the informant or the information provided are included in the record. Though the officer observed no signs of impaired driving, he claimed that the car was equipped with a modified muffler in violation of state vehicle equipment requirements. The officer pulled the vehicle over based on the muffler violation with the primary motive of investigating Mr. Chacon Arreola for a possible DUI. Though the officer testified at a motion hearing that the muffler may have caused him to stop and cite Mr. Chacon Arreola even absent suspicion of drunk driving, the criminal investigation was the primary motive for the stop. The officer further testified that he did not always stop and cite a driver upon noticing a noncompliant muffler. The Court found that the trial court’s finding that the officer was following Mr. Chacon Arreola to investigate a possible DUI and stopped him principally for that reason compel the conclusion that the stop was pretextual in violation of the Washington Constitution. The court observed that the infraction would have constituted sufficient justification for stopping Mr. Chacon Arreola under the Fourth Amendment to the United States Constitution, as the United States Supreme Court has held that an officer wishing to investigate a crime may stop a driver for any traffic infraction observed. However, the Washington Supreme Court, in Ladson, had expressed concern that due to the extensiveness of traffic regulation, “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter." The Court ruled that the reasoning of Ladson compels the result that “a traffic stop is without authority of law where it cannot be constitutionally justified for its primary reason (speculative criminal investigation) but only for some other reason (enforcing the traffic code) which is at once lawfully sufficient but only a secondary reason. The Court found that the traffic stop that yielded the evidence on which Mr. Chacon Arreola was charged in this case was without authority of law because the reason for the stop – to investigate for drunk driving – was not exempt from the warrant requirement. http://www.courts.wa.gov/opinions/pdf/291642.opn.doc.pdf

In a dissent, Judge Brown argued that the Court should defer to the fact-finding discretion of the trial judge, who determined from disputed facts "an actual reason for the stop" was the muffler violation. The dissent argued that a stop can serve multiple, legal, complimentary purposes so long as an actual stop reason passes legal muster, and that officers should not be expected to be “blind to other potential concurring violations detected when investigating an actual stop reason.” http://www.courts.wa.gov/opinions/pdf/291642.dis.docx.pdf


Federal Law

Ninth Circuit Court of Appeals

United States v. Ibarra-Pino: The Court upheld Mr. Ibarra-Pino’s conviction for importation and possession of marijuana. The Court found that the district court did not err in disallowing a duress instruction. Contrary to Mr. Ibarra-Pino’s claims, the Court found that the district court did allow Mr. Ibarra-Pino to present evidence of a duress defense at trial, but agreed that Mr. Ibarra-Pino did not establish the elements of a duress defense. Specifically, the Court found that Mr. Ibarra-Pino had an opportunity to escape the threatened harm when confronted at the border by law enforcement, and before the search of his vehicle uncovered the drugs. Thus, the Court found, there was no error in the district court’s refusal to allow a duress defense or a jury instruction on duress.

In a concurrence, Judge Kozinski agreed that the district court did not preclude a duress defense prior to trial, but did allow Mr. Ibarra-Pino to present evidence of duress during the trial. The concurrence argued that there was no occasion in this matter to discuss whether the district court could properly have precluded a duress defense and tersely concluded that this is a difficult issue “that we should leave to a case where it matters.” http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/10-50341.pdf

United States v. Baker: Mr. Baker appealed his conviction for misdemeanor possession of methamphetamines, arguing that due to flagrant governmental misconduct the case should have been dismissed. The Court affirmed the conviction despite evidence that officers manufactured claims that Mr. Baker threw bags of methamphetamines out of his car during a high speed chase, leading prosecutors to charge him with a felony rather than a misdemeanor based upon the amount of methamphetamines found in his car. Mr. Baker then appealed conditions of probation, including one requiring him to submit to suspicionless searches and one requiring him to submit to DNA collection. The Court affirmed the suspicionless search condition but, because the district court exceeded its statutory authority by imposing the DNA condition, reversed with instructions to strike that condition and to order expungement of DNA records collected pursuant to it.

In a concurrence, Judge Graber agreed completely with the panel’s decision, however, wrote separately to highlight the Court’s continued reliance on the proposition that there is no difference between parolees and probationers in the context of suspicionless searches. The concurrence argued that this position directly contravenes Supreme Court precedent and forecloses the Ninth Circuit’s ability to resolve the question on the merits. The concurrence urged the court to convene en banc to correct this issue. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/10-10223.pdf

United States v. Dugan: The court found constitutional 18 U.S.C. § 922(g)(3), which makes it illegal for “any person . . . who is an unlawful user of or addicted to any controlled substance . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Mr. Dugan, a convicted marijuana dealer who also had a business dealing in firearms, argued that the statute ran afoul of the Second Amendment because it deprives him of his constitutional right “to possess and carry weapons in case of confrontation.” The Court noted that in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the Supreme Court instructed that the Second Amendment right “is not unlimited.”
Specifically, the Court ruled that nothing in its opinion “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…or laws imposing conditions and qualifications on the commercial sale of arms.” The Court ruled that the same dangers existed in allowing drug users to possess guns as with the mentally ill, and upheld the prohibition. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/08-10579.pdf

United States v. Rivera: The Court upheld Mr. Rivera’s sentence of 37 months for unlawfully attempting to re-enter the United States after having previously been removed. The Court found reasonable the district court’s increase in the offense level by eight levels because Mr. Rivera “previously was deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony.” The Court found that the district court properly determined that any one of Mr. Rivera’s three prior felony petty theft convictions would be sufficient to trigger the eight-level increase, because he had been sentenced to concurrent 16-month terms of imprisonment in state prison for his first and second offense and two years in state prison for his third offense. The Court rejected Mr. Rivera’s arguments that the crimes could not be considered aggravated felonies due to the sentencing structure of the crimes and the crime covered by the California Penal Code, finding that the documents submitted in this case establish that at least one of the convictions was based on a guilty plea to conduct that constitutes a generic theft offense, for which the term of imprisonment was at least a year, at that only one prior aggravated felony was necessary for the increase in sentencing levels. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/23/10-50313.pdf

United States v. Fitch: The Court upheld the exceptional sentence imposed on Mr. Fitch’s convictions for nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The Court found that the district court properly increased the sentencing after finding by clear and convincing evidence that Mr. Fitch had murdered his wife and that her death was the means he used to commit his crimes, despite the fact that Mr. Fitch was not charged with his wife’s murder and there was in fact no evidence she was deceased, only that she had disappeared. The Court held that a judge has broad powers to increase a sentence based even on uncharged conduct because a sentence may be based not just on the crimes for which the defendant was convicted but the manner in which the defendant committed the crimes. Here, the district court apparently believed that Mr. Fitch completed the crimes for which he was convicted by first killing his wife, and sentenced him accordingly. The Court found that the district court had authority to sentence Mr. Fitch as it did, and further that the sentence was a reasonable upward departure from the guidelines.

In a dissent, Judge Goodwin argued that, while the evidence of aggravated criminal exploitation of the victim in this case would support an upward departure from the sentencing guidelines, the dissent could not agree there was clear and convincing evidence from which the district court could conclude that Mr. Fitch committed premeditated murder in connection with the fraud charged. The dissent pointed out there was no evidence that Mr. Fitch’s wife was dead, much less evidence of how she died or the degree of Mr. Fitch’s involvement in her disappearance. The dissent further observed that the death of Mr. Fitch’s wife was not a necessary predicate to the fraud committed, and that the district court could not have evaluated the dangerousness of Mr. Fitch’s conduct or the extent to which his wife’s presumed death was intended or knowingly risked because the record is silent on these factors. The only facts in the record are that Mr. Fitch’s wife disappeared and Mr. Fitch immediately exploited her disappearance for his own
benefit. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/23/07-10607.pdf

Obama says he’s not willing to end the drug war | Raw Replay

Obama says he’s not willing to end the drug war | Raw Replay