With 4th of July celebrations just 1 day away, I thought I'd examine the issue of possessing fireworks unlawfully. This post does not address possession of illegal fireworks, but rather the unlawful possession of legal fireworks.
As you may be aware, when you are convicted of a felony or a misdemeanor domestic violence charge, you lose your right to possess firearms. If you have been convicted of a felony or a misdemeanor charge of domestic violence and you own or possess a firearm, you are guilty of the crime of Unlawful Possession of a Firearm. This crime is a felony in and of itself.
In Washington, RCW 9.41.010 (7) sets forth the statutory definition of “firearm” :
" 'Firearm' means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder."
It sounds like many fireworks that are commonly used to celebrate Independence Day would fit the definition of “firearm” under Washington State law. Does that mean you cannot possess or use fireworks if you have a felony or domestic violence conviction?
No. Here's why:
RCW 9.41.320 says:
"Nothing in this chapter [9.41] shall prohibit the possession, sale, or use of fireworks when possessed, sold, or used in compliance with chapter 70.77 RCW."
RCW 70.77 sets forth provisions for the public fireworks displays, selling, and manufacturing of fireworks, and the statutory definition of fireworks:
“Fireworks” means any composition or device designed to produce a visible or audible effect by combustion, deflagration, or detonation, and which meets the definition of articles pyrotechnic or consumer fireworks or display fireworks.
"Consumer fireworks" means any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the United States consumer product safety commission, as set forth in 16 C.F.R. Parts 1500 and 1507 and including some small devices designed to produce audible effects, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials and classified as fireworks UN0336 by the United States department of transportation at 49 C.F.R. Sec. 172.101 …..
So as long as you're in compliance with RCW 70.77, you can use consumer fireworks without being considered to be in possession of a firearm.
But what if you're NOT in compliance with RCW 70.77? What if you possess or use fireworks containing more than 50 mg of explosive materials and do not have the required license for display fireworks?
If that is the case, in theory, it looks like you COULD be found to be in possession of a firearm under RCW 9.41 if you use a device that meets the statutory definition of “firearm” because it is a device that fires a projectile using an explosive such as gunpowder.
But for most instances involving the average consumer using consumer fireworks on the Fourth of July, you cannot be found to be in possession of a firearm.
Saturday, July 3, 2010
Friday, May 7, 2010
ARIZONA'S NEW LAW, RACIAL PROFILING & PRETEXT STOPS: IS THE NEW LAW UNCONSTITUTIONAL?
As you may well have heard, Arizona recently passed a new law that makes entering and/or remaining in the country illegally a crime. The law has been criticized for a variety of reasons, one of the main ones being that the law will lead to racial profiling and pretext stops. On April 30, 2010, new text was added to the Arizona statute, which says that the police can investigate the immigration status of a person only if the police have already made a lawful stop, detention, or arrest of that person. A stop, even a brief stop, is considered a seizure under the Fourth Amendment ban on unreasonable searches and seizure. The stop is lawful only if the police have reasonable suspicion.
Critics say that this will lead to racial profiling and pretext stops. Does that make the Arizona law unconstitutional? First, I'll explain what a pretext stop is. A pretext stop occurs when the officer observes a person violating some law or otherwise has reasonable suspicion that the person violated a certain law, and uses that violation (such as failing to signal a turn) as an excuse to make the stop, but the officer's real purpose of making the stop is to obtain evidence of some other crime for which the officer lacks probable cause or reasonable suspicion. Police may stop a member of a minority group for some minor violation in the hopes that the stop may result in the officer smelling the odor of marijuana or observing a bag of drugs in plain view in the vehicle once the stop is made.
Is this practice constitutional? In 1996, in the case of Whren v. U.S., the U.S. Supreme Court said YES. This practice is allowed under the U.S. Constitution as long as the officer had a lawful reason to stop the person who is detained. Under the Fourth Amendment, the police can stop a person if they have reasonable suspicion, which is supported by objective articulable facts that a law violation has been committed or is about to be committed.
That means the police can single certain people out who appear to be latino and follow them until they observe a traffic violation or stop someone who appears to be latino for jaywalking when they would not normally stop a person who appeared to be caucasian for the same violation. As long as they have reasonable suspicion that a person has violated the law, the police may stop a person. At that point, under the new Arizona law, they may ask for immigration papers. This is allowed under Whren v. U.S. The Supreme Court did say that racially motivated stops were invalid. In practice, however, it is nearly impossible to prove that a stop was racially motivated if the police had reasonable suspicion that the person stopped had violated the law.
I personally don't like the probable result of police using pretext stops to harass people who appear to be Mexican in the hopes that they just might stop someone who happens to be an illegal immigrant. As a criminal defense lawyer who practices in Seattle and other parts of Washington,I'd like to point out how some states, such as Washington, have outlawed this type of police practice.
In 1999, The Washington Supreme Court decided the case of State v. Ladson. In that case, the Court said that, while pretext stops may be allowed under the U.S. Constitution, the Washington State Constitution provides broader protection from unreasonable police stops than the U.S. Constitution and that pretext stops are not allowed under the Washington State Constitution.
Not every state has taken the same position as Washington and pretext stops are allowed in those states. I am not familiar with Arizona State law, but unless the Arizona Supreme Court holds that pretext stops are not allowed or legislation is passed that prohibits pretext stops, the new Arizona law is constitutional as far as the law of search and seizure goes.
There have been other constitutional attacks to Arizona's new law. Among these is the argument that immigration is reserved for the Federal government to regulate and that Arizona's law is unconstitutional because it encroaches on an area that has been set aside exclusively for the Federal government. Such arguments are beyond the scope of this blog post, which is limited to addressing the constitutionality of Arizona's new law with regard to the Fourth Amendment and the law of search and seizure.
Critics say that this will lead to racial profiling and pretext stops. Does that make the Arizona law unconstitutional? First, I'll explain what a pretext stop is. A pretext stop occurs when the officer observes a person violating some law or otherwise has reasonable suspicion that the person violated a certain law, and uses that violation (such as failing to signal a turn) as an excuse to make the stop, but the officer's real purpose of making the stop is to obtain evidence of some other crime for which the officer lacks probable cause or reasonable suspicion. Police may stop a member of a minority group for some minor violation in the hopes that the stop may result in the officer smelling the odor of marijuana or observing a bag of drugs in plain view in the vehicle once the stop is made.
Is this practice constitutional? In 1996, in the case of Whren v. U.S., the U.S. Supreme Court said YES. This practice is allowed under the U.S. Constitution as long as the officer had a lawful reason to stop the person who is detained. Under the Fourth Amendment, the police can stop a person if they have reasonable suspicion, which is supported by objective articulable facts that a law violation has been committed or is about to be committed.
That means the police can single certain people out who appear to be latino and follow them until they observe a traffic violation or stop someone who appears to be latino for jaywalking when they would not normally stop a person who appeared to be caucasian for the same violation. As long as they have reasonable suspicion that a person has violated the law, the police may stop a person. At that point, under the new Arizona law, they may ask for immigration papers. This is allowed under Whren v. U.S. The Supreme Court did say that racially motivated stops were invalid. In practice, however, it is nearly impossible to prove that a stop was racially motivated if the police had reasonable suspicion that the person stopped had violated the law.
I personally don't like the probable result of police using pretext stops to harass people who appear to be Mexican in the hopes that they just might stop someone who happens to be an illegal immigrant. As a criminal defense lawyer who practices in Seattle and other parts of Washington,I'd like to point out how some states, such as Washington, have outlawed this type of police practice.
In 1999, The Washington Supreme Court decided the case of State v. Ladson. In that case, the Court said that, while pretext stops may be allowed under the U.S. Constitution, the Washington State Constitution provides broader protection from unreasonable police stops than the U.S. Constitution and that pretext stops are not allowed under the Washington State Constitution.
Not every state has taken the same position as Washington and pretext stops are allowed in those states. I am not familiar with Arizona State law, but unless the Arizona Supreme Court holds that pretext stops are not allowed or legislation is passed that prohibits pretext stops, the new Arizona law is constitutional as far as the law of search and seizure goes.
There have been other constitutional attacks to Arizona's new law. Among these is the argument that immigration is reserved for the Federal government to regulate and that Arizona's law is unconstitutional because it encroaches on an area that has been set aside exclusively for the Federal government. Such arguments are beyond the scope of this blog post, which is limited to addressing the constitutionality of Arizona's new law with regard to the Fourth Amendment and the law of search and seizure.
Sunday, April 25, 2010
THE DIFFERENCE BETWEEN FOURTH DEGREE AND SECOND DEGREE ASSAULT CAN BE TRIAL STRATEGY
Division II of the Washington court of Appeals has just reversed the conviction of a man who was charged with 2nd degree assault. The decision is based on the fact that the defendant's lawyer did not ask for a jury instruction on the lesser included offense of 4th degree assault. In the case of State v. Breitung, the victims claim that Breitung approached the victims' vehicle, pointed a gun at them, and threatened to kill them. This constitutes 2nd degree assault because the defendant allegedly used a deadly weapon.
However, Breitung testified that he did not aim a gun at the victim's, but rather a microscope, which he put in his pocket once he got the victims to stop. Breitung testified that he later walked up to the vehicle and asked the victims to leave.
Breitung's lawyer argued that no assault occurred. Since the argument was that there was no assault, Breitung's lawyer did not ask for an instruction on the lesser included offense of assault 4. Second degree assault is an assault where the defendant intends to inflict great bodily harm, actually does inflict great bodily harm, or uses a deadly weapon. The assault in this case was the intentional act of putting the victims in reasonable apprehension of bodily harm or death. When there is no intent to inflict great bodily harm, no actual bodily harm or use of deadly weapon, then the assault wold be assault 4 rather than assault 2.
Breitung appealed his felony conviction of assault 2 on the grounds that it was ineffective assistance of counsel for his lawyer to not ask for a jury instruction on the lesser included offense of assault 4. The Washington Supreme Court found that, because Breitung himself testified that he pointed a microscope at the victims, there was evidence that he committed 4th degree assault and the defense should have asked for a jury instruction on that offense. Though the Court recognized that it was a trial strategy to not ask for the instruction because the defense was arguing that no assault whatsoever took place, it was too risky not to ask for the instruction on the lesser included offense because assault 4 is a misdemeanor and assault 2 is a violent felony with much more serious consequences.
To prove ineffective assistance of counsel, the defendant must show 1) that the defense lawyer was deficient and 2) that the defense was prejudiced by the deficiency. The second part usually means that there was a high probability that the case would have come out differently if it was not for the deficiency.
I agree with the dissenting opinion in this decision, that the defense lawyer should not have been required to ask for an instruction on assault 4. This is because it was likely that Breitung would be convicted of being in unlawful possession of a firearm, which Breitung admitted. Breitung was therefore already facing 9-12 month in prison on the firearm charge and the assault 2 conviction would not have made that much of a difference. Also, Breitung's testimony that he approached the victims with a microscope rather than a gun is, as the dissenting Judge said, “comedic.”
The trial lawyer was put in a tight spot in deciding between arguing an implausible version of the facts or taking a risk and arguing that no assault occurred whatsoever. As a Washington criminal defense lawyer, I do not believe that the trial lawyer's tactical decision not ask for a jury instruction on 4th degree assault amounted o ineffective assistance of counsel in this case.
However, Breitung testified that he did not aim a gun at the victim's, but rather a microscope, which he put in his pocket once he got the victims to stop. Breitung testified that he later walked up to the vehicle and asked the victims to leave.
Breitung's lawyer argued that no assault occurred. Since the argument was that there was no assault, Breitung's lawyer did not ask for an instruction on the lesser included offense of assault 4. Second degree assault is an assault where the defendant intends to inflict great bodily harm, actually does inflict great bodily harm, or uses a deadly weapon. The assault in this case was the intentional act of putting the victims in reasonable apprehension of bodily harm or death. When there is no intent to inflict great bodily harm, no actual bodily harm or use of deadly weapon, then the assault wold be assault 4 rather than assault 2.
Breitung appealed his felony conviction of assault 2 on the grounds that it was ineffective assistance of counsel for his lawyer to not ask for a jury instruction on the lesser included offense of assault 4. The Washington Supreme Court found that, because Breitung himself testified that he pointed a microscope at the victims, there was evidence that he committed 4th degree assault and the defense should have asked for a jury instruction on that offense. Though the Court recognized that it was a trial strategy to not ask for the instruction because the defense was arguing that no assault whatsoever took place, it was too risky not to ask for the instruction on the lesser included offense because assault 4 is a misdemeanor and assault 2 is a violent felony with much more serious consequences.
To prove ineffective assistance of counsel, the defendant must show 1) that the defense lawyer was deficient and 2) that the defense was prejudiced by the deficiency. The second part usually means that there was a high probability that the case would have come out differently if it was not for the deficiency.
I agree with the dissenting opinion in this decision, that the defense lawyer should not have been required to ask for an instruction on assault 4. This is because it was likely that Breitung would be convicted of being in unlawful possession of a firearm, which Breitung admitted. Breitung was therefore already facing 9-12 month in prison on the firearm charge and the assault 2 conviction would not have made that much of a difference. Also, Breitung's testimony that he approached the victims with a microscope rather than a gun is, as the dissenting Judge said, “comedic.”
The trial lawyer was put in a tight spot in deciding between arguing an implausible version of the facts or taking a risk and arguing that no assault occurred whatsoever. As a Washington criminal defense lawyer, I do not believe that the trial lawyer's tactical decision not ask for a jury instruction on 4th degree assault amounted o ineffective assistance of counsel in this case.
Tuesday, April 20, 2010
4/20 EDITITON: CAN YOU BE FIRED FOR USING MEDICAL MARIJUANA PRESCRIBED BY A DOCTOR?
With today being April 20th (4/20), I thought today would be just as good as any to write about the case that is going up to the Washington Supreme Court involving medical marijuana. The case is Roe v. Teletech Customer Care Management, LLC. What happened was Roe was hired by Teletech to work as a customer service consultant for the company. Roe had been prescribed medical marijuana by her physician in Bellevue, Washington to treat her migraine headaches and had documents authorizing her to use marijuana under Washington's medical Use of Marijuana Act (MUMA).
On October 3, 2006, TeleTech hired Roe. When Roe was told that she would have to submit to drug testing, Roe told TeleTech that she used medical marijuana at home and that she was allowed to do so by law. On October 5, 2006, Roe took a drug test and on October 10, 2006, she began working for TeleTech. Roe's drug test results also came back on October 10, 2006 and indicated that Roe tested positive for marijuana. On October 18, 2006, TeleTech fired Roe because of the positive drug test.
Roe sued Teletech for wrongful termination based on two different legal theories. The first theory was that under MUMA, it is implied that that employees who are authorized to use medical marijuana can sue employers who fire them for their use of medical marijuana. The trial court rejected this argument, finding no such legislative intent and that the average lay person who voted for the MUMA initiative would not have read an implied cause of action against employers into the plain language of the initiative.
The second legal theory was that Roe's termination was wrongful because it was against public policy to fire a person for legally using prescribed medication. The lower court rejected this argument as well and granted a motion for summary judgment in favor of Teletech. Roe appealed the trial court's decision to Division 2 of the Washington State Court of Appeals. The Court of appeals affirmed the trial court's decision.
In the Court of Appeals' decision, the court pointed out that to succeed on a wrongful termination claim, Roe would have to show (1) the existence of a clear public policy; (2) discouraging Roe's use of medical marijuana would jeopardize the public policy; (3) the public policy linked conduct was the reason Roe was fired; and (4) TeleTech cannot offer an overriding justification for Roe being fired.
The Court of Appeals found that Roe had not established that a clear public policy existed. The Court of Appeals stated that MUMA only protects patients and physicians from criminal prosecution, it does not provide them with a basis to bring a lawsuit against employers for wrongful termination. The ACLU of Washington had filed an amicus memorandum to the Washington Supreme Court, which has decided to review the case.
I predict that the Washington Supreme Court may very well reverse the lower court's decision. Although, it may be a long shot in showing that there is an implied cause of action in MUMA to sue employers, I do think that it is clearly against public policy to terminate employees for legally taking prescribed medication at home when it does not pose a threat to safety of other sin the workplace or negatively affect job performance.
On October 3, 2006, TeleTech hired Roe. When Roe was told that she would have to submit to drug testing, Roe told TeleTech that she used medical marijuana at home and that she was allowed to do so by law. On October 5, 2006, Roe took a drug test and on October 10, 2006, she began working for TeleTech. Roe's drug test results also came back on October 10, 2006 and indicated that Roe tested positive for marijuana. On October 18, 2006, TeleTech fired Roe because of the positive drug test.
Roe sued Teletech for wrongful termination based on two different legal theories. The first theory was that under MUMA, it is implied that that employees who are authorized to use medical marijuana can sue employers who fire them for their use of medical marijuana. The trial court rejected this argument, finding no such legislative intent and that the average lay person who voted for the MUMA initiative would not have read an implied cause of action against employers into the plain language of the initiative.
The second legal theory was that Roe's termination was wrongful because it was against public policy to fire a person for legally using prescribed medication. The lower court rejected this argument as well and granted a motion for summary judgment in favor of Teletech. Roe appealed the trial court's decision to Division 2 of the Washington State Court of Appeals. The Court of appeals affirmed the trial court's decision.
In the Court of Appeals' decision, the court pointed out that to succeed on a wrongful termination claim, Roe would have to show (1) the existence of a clear public policy; (2) discouraging Roe's use of medical marijuana would jeopardize the public policy; (3) the public policy linked conduct was the reason Roe was fired; and (4) TeleTech cannot offer an overriding justification for Roe being fired.
The Court of Appeals found that Roe had not established that a clear public policy existed. The Court of Appeals stated that MUMA only protects patients and physicians from criminal prosecution, it does not provide them with a basis to bring a lawsuit against employers for wrongful termination. The ACLU of Washington had filed an amicus memorandum to the Washington Supreme Court, which has decided to review the case.
I predict that the Washington Supreme Court may very well reverse the lower court's decision. Although, it may be a long shot in showing that there is an implied cause of action in MUMA to sue employers, I do think that it is clearly against public policy to terminate employees for legally taking prescribed medication at home when it does not pose a threat to safety of other sin the workplace or negatively affect job performance.
Sunday, March 21, 2010
WHAT IF YOU CHANGE YOUR MIND? CAN YOU WITHDRAW A PLEA OF GUILTY?
People ask me all the time about withdrawing their guilty plea because they are unhappy with the sentence they received. Can it be done? The answer is yes, but only under rare circumstances. When you enter a plea of guilty you are giving up several important constitutional rights. Among these rights is the right to a trial. By entering a plea of guilty, you are allowing the judge to find you guilty based solely off of the police reports or your written statement. Because you are giving up these significant rights, the court does everything it can to ensure that you are entering the plea knowingly and voluntarily.
When you enter a guilty plea, there is a colloquy that goes on the record in which the judge confirms that you know that you are giving up your constitutional right to a trial. The judge also confirms that you understand that the court may impose a sentence that exceeds the prosecutor's recommendation. The judge usually follows the recommendation that is on the plea agreement that you sign, but the judge is not obligated to follow that recommendation- the court may impose the maximum sentence allowed by law.
On the plea forms, you will also provide information concerning your age and level of education. This assists the court in determining whether you are making a knowing waiver of your rights. The court also confirms that you you were not threatened to enter the agreement and that you were not promised anything if you entered into the agreement. All of this is confirmed in the agreement you sign and it will also go on the record when you appear in front of the judge. If the plea agreement is not placed on the record in its entirety in court, you may have grounds to withdraw the plea.
A guilty plea may only be withdrawn if you can show that a manifest injustice will occur if you are not allowed to withdraw the plea. The burden is on the defendant to prove that a manifest injustice will occur. The factors that indicate that a manifest injustice will occur are: ineffective assistance of counsel, the defendant did not agree to the plea, the plea was not voluntary, and breach of the agreement by the prosecutor. If these factors are not present, then the defendant must prove that there are some other set of circumstances that would result in an obvious injustice.
Ineffective assistance of counsel usually means that the defense attorney did not do his or her job by failing to properly advise you AND your decision to plead guilty would have been different had you been properly advised. When you attempt to withdraw a guilty plea on the ground of ineffective assistance of counsel, you should have a different criminal defense lawyer represent you due to the conflict of interest.
Although you may be unhappy with your sentence because the judge gave you more jail time than the prosecutor had recommended, that is not grounds for withdrawing a guilty plea. You generally must show that you were not properly advised, that your plea was not voluntary, or that the prosecutor breached the agreement. A motion to withdraw a guilty plea must be made within 1 year of the judgment and sentence.
When you enter a guilty plea, there is a colloquy that goes on the record in which the judge confirms that you know that you are giving up your constitutional right to a trial. The judge also confirms that you understand that the court may impose a sentence that exceeds the prosecutor's recommendation. The judge usually follows the recommendation that is on the plea agreement that you sign, but the judge is not obligated to follow that recommendation- the court may impose the maximum sentence allowed by law.
On the plea forms, you will also provide information concerning your age and level of education. This assists the court in determining whether you are making a knowing waiver of your rights. The court also confirms that you you were not threatened to enter the agreement and that you were not promised anything if you entered into the agreement. All of this is confirmed in the agreement you sign and it will also go on the record when you appear in front of the judge. If the plea agreement is not placed on the record in its entirety in court, you may have grounds to withdraw the plea.
A guilty plea may only be withdrawn if you can show that a manifest injustice will occur if you are not allowed to withdraw the plea. The burden is on the defendant to prove that a manifest injustice will occur. The factors that indicate that a manifest injustice will occur are: ineffective assistance of counsel, the defendant did not agree to the plea, the plea was not voluntary, and breach of the agreement by the prosecutor. If these factors are not present, then the defendant must prove that there are some other set of circumstances that would result in an obvious injustice.
Ineffective assistance of counsel usually means that the defense attorney did not do his or her job by failing to properly advise you AND your decision to plead guilty would have been different had you been properly advised. When you attempt to withdraw a guilty plea on the ground of ineffective assistance of counsel, you should have a different criminal defense lawyer represent you due to the conflict of interest.
Although you may be unhappy with your sentence because the judge gave you more jail time than the prosecutor had recommended, that is not grounds for withdrawing a guilty plea. You generally must show that you were not properly advised, that your plea was not voluntary, or that the prosecutor breached the agreement. A motion to withdraw a guilty plea must be made within 1 year of the judgment and sentence.
Wednesday, March 3, 2010
CAN THE POLICE CHECK MOTEL REGISTRIES TO SEE IF THERE IS A WARRANT FOR YOUR ARREST?
The issue of whether the police can randomly check a motel registry to see who is staying at the motel and whether they have outstanding warrants is of particular interest to me, not only because of the constitutional implications, but because I encountered this specific issue back when I was appealing felony convictions at the Washington Appellate Project in 2005.
In the case that I appealed, the police observed the defendant and his female companion enter a motel on Aurora, a high crime area known for prostitution and drug activity. After the defendant entered the room, the police checked the motel registry. They then ran a warrants check on the defendant after getting his name, birth date, and driver's license number from the registry. Sure enough, the defendant had an outstanding warrant.
The police then went to the defendant's motel room and knocked on the door. The man answered and by this time, he was not wearing pants. The police arrested him because of the outstanding warrant and placed him in a patrol car. They then went back into the motel room to get the defendant's pants. Before giving the pants to the defendant, they searched the pants and found...crack cocaine.
So my client was convicted of a felony- possession of a controlled substance. The main issues I argued on appeal involved illegal searches and seizures. One of the first questions in a search and seizure argument is whether there is a privacy interest involved. Another question is whether that privacy interest is protected by the Fourth Amendment to the U.S. Constitution. At the time I was drafting my brief, the U.S. Supreme Court had held that it was not a violation of the Fourth Amendment for the police to randomly check motel registries without probable cause.
The next question to ask in this type of case is whether the search is a violation of our state constitution. The Washington Supreme Court has long held that the Washington State Constitution provides broader protection than the Fourth Amendment. This is largely because Article 1, Section 7 of our state constitution includes the words, "private affairs." So in 2005, I argued that a person in the state of Washington has a privacy interest in the information they provide to motels and that a random check of motel registries by police was a violation of our state constitution. This argument was rejected by Division One of the Washington State court of Appeals and the felony conviction was affirmed.
While I was drafting the brief for the appeal, another attorney shared her brief with me. She was arguing the very same issue, but she was taking it to the Washington Supreme Court. By 2007, the Washington Supreme Court had decided the case and held that random checks of motel registries without probable cause was a violation of our state constitution and are not permitted. The case was State v. Jorden.
In a relatively short opinion, the Court reasoned that "private affairs" meant "interests which citizens of this state have held, and should be entitled to hold, safe from government trespass." The court acknowledged that there were a number of legitimate reasons why a person who was lawfully staying at a motel would want to keep his or her presence at the motel private. For that reason, the Court found that the Washington State Constitution prohibits random searches of motel registries.
The decision in State v. Jorden was a major victory, not only for criminal defense lawyers like myself, but for the residents of Washington in general. For years police had made arrests by checking who was signed in at a motel and running warrants checks on those people just in case they might find something. The police can no longer do this in Washington State.
Since State v. Jorden, evidence has been suppressed after police conducted random searches at motels. For example, a colleague of mine recently had a case in which police performed a random search of a motel registry which led them to his client, who happened to be in possession of 1 pound of methamphetamine. My colleague referred the court to State v. Jorden and the evidence was suppressed. Needless to say, the case was dismissed.
In the case that I appealed, the police observed the defendant and his female companion enter a motel on Aurora, a high crime area known for prostitution and drug activity. After the defendant entered the room, the police checked the motel registry. They then ran a warrants check on the defendant after getting his name, birth date, and driver's license number from the registry. Sure enough, the defendant had an outstanding warrant.
The police then went to the defendant's motel room and knocked on the door. The man answered and by this time, he was not wearing pants. The police arrested him because of the outstanding warrant and placed him in a patrol car. They then went back into the motel room to get the defendant's pants. Before giving the pants to the defendant, they searched the pants and found...crack cocaine.
So my client was convicted of a felony- possession of a controlled substance. The main issues I argued on appeal involved illegal searches and seizures. One of the first questions in a search and seizure argument is whether there is a privacy interest involved. Another question is whether that privacy interest is protected by the Fourth Amendment to the U.S. Constitution. At the time I was drafting my brief, the U.S. Supreme Court had held that it was not a violation of the Fourth Amendment for the police to randomly check motel registries without probable cause.
The next question to ask in this type of case is whether the search is a violation of our state constitution. The Washington Supreme Court has long held that the Washington State Constitution provides broader protection than the Fourth Amendment. This is largely because Article 1, Section 7 of our state constitution includes the words, "private affairs." So in 2005, I argued that a person in the state of Washington has a privacy interest in the information they provide to motels and that a random check of motel registries by police was a violation of our state constitution. This argument was rejected by Division One of the Washington State court of Appeals and the felony conviction was affirmed.
While I was drafting the brief for the appeal, another attorney shared her brief with me. She was arguing the very same issue, but she was taking it to the Washington Supreme Court. By 2007, the Washington Supreme Court had decided the case and held that random checks of motel registries without probable cause was a violation of our state constitution and are not permitted. The case was State v. Jorden.
In a relatively short opinion, the Court reasoned that "private affairs" meant "interests which citizens of this state have held, and should be entitled to hold, safe from government trespass." The court acknowledged that there were a number of legitimate reasons why a person who was lawfully staying at a motel would want to keep his or her presence at the motel private. For that reason, the Court found that the Washington State Constitution prohibits random searches of motel registries.
The decision in State v. Jorden was a major victory, not only for criminal defense lawyers like myself, but for the residents of Washington in general. For years police had made arrests by checking who was signed in at a motel and running warrants checks on those people just in case they might find something. The police can no longer do this in Washington State.
Since State v. Jorden, evidence has been suppressed after police conducted random searches at motels. For example, a colleague of mine recently had a case in which police performed a random search of a motel registry which led them to his client, who happened to be in possession of 1 pound of methamphetamine. My colleague referred the court to State v. Jorden and the evidence was suppressed. Needless to say, the case was dismissed.
Thursday, January 14, 2010
DEATH PENALTY LOSES SUPPORT- PART III
33 years after the Supreme Court decided Gregg v. Georgia, the American Law Institute (ALI) has withdrawn its capital punishment provisions set forth in the Model penal Code “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
I explained why the U.S. Supreme Court reinstated the death penalty in the U.S. In the last posting. After the Court invalidated all of the state statutes regarding the death penalty in Furman v. Georgia, many states based their new statutes on the Model Penal Code, which was drafted by the ALI. When the Court reviewed the new state statutes in Gregg v. Georgia, the Court held that the statutes did not violate the Eight Amendment because they ameliorated the problems of racial discrimination, disproportionate sentencing, and arbitrary capricious sentencing. That case was decided in 1976.
In 2007, ALI members planned on making a motion to have the ALI take a position in favor of abolishing the death penalty at the ALI annual meeting. The ALI president told the members that there would not be a vote on that matter at the 2007 annual meeting, but he would appoint a committee to conduct a study and submit its recommendations at the 2008 annual meeting.
Members of ALI have since written a lengthy paper discussing the state of the death penalty today. The authors concluded that the guided discretion “experiment” was a failure. When the ALI drafted section 210.6 back in 1962, it was untested and considered to be an innovation where juries would exercise guided discretion in deciding who lives and who dies by weighing aggravating and mitigating factors. Now that we have over three decades worth of capital cases to look at since many states modeled their capital punishment statutes on section 210.6, the ALI says that it did not succeed in taking away arbitrariness and caprice away from the administration of the death penalty.
Prior to Furman v. Georgia, many crimes were punishable by death, including burglary, rape, and armed robbery. The ALI's provision in the Model Penal Code limited the crimes for which someone could be executed to murder. Section 210.6 attempted to further limit the kinds of murder that would make a person eligible for the death penalty by listing aggravating factors. What has happened since the death penalty was reinstated as a result of states following the Model Penal Code is that the statutory aggravating factors have become so numerous that they cover many if not most murders in several states.
The ALI has also acknowledged that racial discrimination is still prevalent in the administration of the death penalty today, almost 40 years after Furman v. Georgia. Today, the race of the victim seems to have more of an influence on whether a person will receive the death penalty than the race of the defendant.
Another problem that the ALI has found is the sensationalism in the media regarding capital cases and the political pressures involved. District Attorneys and judges do not want to appear soft on crime when an election is near and are more likely to seek the death penalty depending on certain political circumstances.
The ALI also noted the numerous individuals who had been sentenced to death and were later found to be innocent, often through DNA evidence. I personally had the opportunity of meeting the 100th person to be exonerated from death row since 1973 (Ray Krone) when he visited my law school several years ago. Mention of the lack of funding inadequate counsel often provided in capital cases is made in the ALI's report.
For all of these reasons, the ALI has decided that section 210.6 of the Model Penal Code, which sets forth the ideal manner in which to administer the death penalty has failed. Because the ALI is divided, with some members in favor of the death penalty and others who are not, the ALI will not take a stance supporting the abolition of capital punishment, but at the same time it will not endorse the death penalty by maintaining a section in the Model Penal Code that instructs states on how to carry it out.
The ALI has recently said, “Unless we are confident we can recommend procedures that would meet the most important of the concerns, the Institute should not play a further role in legitimating capital punishment, no matter how unintentionally, by retaining the section in the Model Penal Code.”
I explained why the U.S. Supreme Court reinstated the death penalty in the U.S. In the last posting. After the Court invalidated all of the state statutes regarding the death penalty in Furman v. Georgia, many states based their new statutes on the Model Penal Code, which was drafted by the ALI. When the Court reviewed the new state statutes in Gregg v. Georgia, the Court held that the statutes did not violate the Eight Amendment because they ameliorated the problems of racial discrimination, disproportionate sentencing, and arbitrary capricious sentencing. That case was decided in 1976.
In 2007, ALI members planned on making a motion to have the ALI take a position in favor of abolishing the death penalty at the ALI annual meeting. The ALI president told the members that there would not be a vote on that matter at the 2007 annual meeting, but he would appoint a committee to conduct a study and submit its recommendations at the 2008 annual meeting.
Members of ALI have since written a lengthy paper discussing the state of the death penalty today. The authors concluded that the guided discretion “experiment” was a failure. When the ALI drafted section 210.6 back in 1962, it was untested and considered to be an innovation where juries would exercise guided discretion in deciding who lives and who dies by weighing aggravating and mitigating factors. Now that we have over three decades worth of capital cases to look at since many states modeled their capital punishment statutes on section 210.6, the ALI says that it did not succeed in taking away arbitrariness and caprice away from the administration of the death penalty.
Prior to Furman v. Georgia, many crimes were punishable by death, including burglary, rape, and armed robbery. The ALI's provision in the Model Penal Code limited the crimes for which someone could be executed to murder. Section 210.6 attempted to further limit the kinds of murder that would make a person eligible for the death penalty by listing aggravating factors. What has happened since the death penalty was reinstated as a result of states following the Model Penal Code is that the statutory aggravating factors have become so numerous that they cover many if not most murders in several states.
The ALI has also acknowledged that racial discrimination is still prevalent in the administration of the death penalty today, almost 40 years after Furman v. Georgia. Today, the race of the victim seems to have more of an influence on whether a person will receive the death penalty than the race of the defendant.
Another problem that the ALI has found is the sensationalism in the media regarding capital cases and the political pressures involved. District Attorneys and judges do not want to appear soft on crime when an election is near and are more likely to seek the death penalty depending on certain political circumstances.
The ALI also noted the numerous individuals who had been sentenced to death and were later found to be innocent, often through DNA evidence. I personally had the opportunity of meeting the 100th person to be exonerated from death row since 1973 (Ray Krone) when he visited my law school several years ago. Mention of the lack of funding inadequate counsel often provided in capital cases is made in the ALI's report.
For all of these reasons, the ALI has decided that section 210.6 of the Model Penal Code, which sets forth the ideal manner in which to administer the death penalty has failed. Because the ALI is divided, with some members in favor of the death penalty and others who are not, the ALI will not take a stance supporting the abolition of capital punishment, but at the same time it will not endorse the death penalty by maintaining a section in the Model Penal Code that instructs states on how to carry it out.
The ALI has recently said, “Unless we are confident we can recommend procedures that would meet the most important of the concerns, the Institute should not play a further role in legitimating capital punishment, no matter how unintentionally, by retaining the section in the Model Penal Code.”
Monday, January 11, 2010
THE DEATH PENALTY LOSES SUPPORT: THE AMERICAN LAW INSTITUTE NO LONGER SUPPORTS CAPITAL PUNISHMENT 33 YEARS AFTER GREGG V. GEORGIA- PART II
In Part I of this posting, I discussed the U.S. Supreme Court's ruling in Furman v. Georgia (1972), which declared invalid all of the state laws regarding the administration of the death penalty. The Court reasoned that the death penalty, as it was being carried out at that time, was a violation of the Eighth Amendment, which bans cruel and unusual punishment. The court noted the disproportionate number of poor and minority defendants that received the death penalty. Because minority defendants would receive a death sentence far more frequently than white defendants who were found to be guilty of the same crime, the Court found the death penalty to be an "unusual punishment" within the meaning of the Eighth Amendment.
At the time, states authorized the death penalty for a number of crimes in addition to murder. These crimes included rape, aggravated assault, and armed robbery. In cases involving these charges, minorities would receive the death penalty while white defendants accused of these crimes would rarely receive a death sentence. The Court also noted the unbridled discretion that judges and juries had in determining who shall receive a death sentence. For these reasons, the Court held that the administration of the death penalty in the U.S. was arbitrary and capricious.
THE STATES' RESPONSE TO FURMAN V. GEORGIA
35 states, wishing to preserve the death penalty as the ultimate criminal sanction, revised their statutes regarding the death penalty to comport with the Supreme Court's ruling. In doing so, they turned to the Model Penal Code, which was drafted by the American Law Institute (ALI), for guidance. Section 210.6 of the Model Penal Code set forth the what ALI considered to be the ideal procedure for administering the death penalty.
Georgia, after turning to the Model Penal Code, enacted legislation that required a jury to find at least one statutory aggravating factor before it could impose the death penalty. Statutory aggravating factors included multiple victims, crimes committed against a police officer, crimes committed for financial gain, and the defendant's prior record of capital offenses.
Also guided by the Model Penal Code, the new Georgia statute required a bifurcated trial that consisted of a guilt phase and a sentencing phase. Once the jury determined that the defendant was guilty, they would weigh aggravating and mitigating factors during the sentencing phase to determine whether the defendant should be sentenced to death. It could use any aggravating factors in making its decision, but it had to find at least one aggravating factor specifically listed in the new statute to impose the death penalty.
Finally, the new Georgia statute required an automatic appeal to the Georgia Supreme Court for review of the death sentence to prevent arbitrary and capricious sentencing. The Georgia Supreme Court was to review death sentences to ensure that they were not given under the influence of passion or prejudice, to ensure that there was sufficient evidence to support the existence of a statutory aggravating factor, and whether the a sentence of death is disproportionate to the sentences imposed in similar cases.
In 1976, the U.S.Supreme Court decided the case of Gregg v. Georgia. The court was asked to decide whether the new Georgia statute, which was enacted in response to Furman v. Georgia, violated the Eighth Amendment prohibition on cruel and unusual punishment. The Supreme Court first noted that it did not believe that the death penalty itself constituted cruel and unusual punishment. To support this proposition, the Court pointed to the fact that the death penalty was common place at the time the Eighth Amendment was drafted and there are other constitutional provisions (such as the Fifth Amendment, which requires due process when the government takes life, liberty, or property) that acknowledge the death penalty as acceptable punishment for certain crimes.
The Court concluded that the new Georgia statute alleviated the constitutional concerns that were present prior to Furman v. Georgia. The Court found that drafting a list of specific aggravating factors and requiring a jury to find the existence of at least one of those factors in a two-phase trial resulted in "guided discretion," which remedied the previous problem of juries having unbridled discretion with regard to the decision of who lives and who dies. The Court also found that the automatic review by the state supreme court remedied the problem of disproportionate sentences being carried out. For these reasons, the Court found that the new Georgia statute was not unconstitutional and the death penalty was reinstated in the U.S.
In the next posting, I will explain what happened since Gregg v. Georgia that made ALI delete its section on the death penalty in the Model Penal Code and decline to further endorse the death penalty as an acceptable form of punishment.
At the time, states authorized the death penalty for a number of crimes in addition to murder. These crimes included rape, aggravated assault, and armed robbery. In cases involving these charges, minorities would receive the death penalty while white defendants accused of these crimes would rarely receive a death sentence. The Court also noted the unbridled discretion that judges and juries had in determining who shall receive a death sentence. For these reasons, the Court held that the administration of the death penalty in the U.S. was arbitrary and capricious.
THE STATES' RESPONSE TO FURMAN V. GEORGIA
35 states, wishing to preserve the death penalty as the ultimate criminal sanction, revised their statutes regarding the death penalty to comport with the Supreme Court's ruling. In doing so, they turned to the Model Penal Code, which was drafted by the American Law Institute (ALI), for guidance. Section 210.6 of the Model Penal Code set forth the what ALI considered to be the ideal procedure for administering the death penalty.
Georgia, after turning to the Model Penal Code, enacted legislation that required a jury to find at least one statutory aggravating factor before it could impose the death penalty. Statutory aggravating factors included multiple victims, crimes committed against a police officer, crimes committed for financial gain, and the defendant's prior record of capital offenses.
Also guided by the Model Penal Code, the new Georgia statute required a bifurcated trial that consisted of a guilt phase and a sentencing phase. Once the jury determined that the defendant was guilty, they would weigh aggravating and mitigating factors during the sentencing phase to determine whether the defendant should be sentenced to death. It could use any aggravating factors in making its decision, but it had to find at least one aggravating factor specifically listed in the new statute to impose the death penalty.
Finally, the new Georgia statute required an automatic appeal to the Georgia Supreme Court for review of the death sentence to prevent arbitrary and capricious sentencing. The Georgia Supreme Court was to review death sentences to ensure that they were not given under the influence of passion or prejudice, to ensure that there was sufficient evidence to support the existence of a statutory aggravating factor, and whether the a sentence of death is disproportionate to the sentences imposed in similar cases.
In 1976, the U.S.Supreme Court decided the case of Gregg v. Georgia. The court was asked to decide whether the new Georgia statute, which was enacted in response to Furman v. Georgia, violated the Eighth Amendment prohibition on cruel and unusual punishment. The Supreme Court first noted that it did not believe that the death penalty itself constituted cruel and unusual punishment. To support this proposition, the Court pointed to the fact that the death penalty was common place at the time the Eighth Amendment was drafted and there are other constitutional provisions (such as the Fifth Amendment, which requires due process when the government takes life, liberty, or property) that acknowledge the death penalty as acceptable punishment for certain crimes.
The Court concluded that the new Georgia statute alleviated the constitutional concerns that were present prior to Furman v. Georgia. The Court found that drafting a list of specific aggravating factors and requiring a jury to find the existence of at least one of those factors in a two-phase trial resulted in "guided discretion," which remedied the previous problem of juries having unbridled discretion with regard to the decision of who lives and who dies. The Court also found that the automatic review by the state supreme court remedied the problem of disproportionate sentences being carried out. For these reasons, the Court found that the new Georgia statute was not unconstitutional and the death penalty was reinstated in the U.S.
In the next posting, I will explain what happened since Gregg v. Georgia that made ALI delete its section on the death penalty in the Model Penal Code and decline to further endorse the death penalty as an acceptable form of punishment.
Tuesday, January 5, 2010
THE DEATH PENALTY LOSES SUPPORT: THE AMERICAN LAW INSTITUTE NO LONGER SUPPORTS CAPITAL PUNISHMENT 33 YEARS AFTER GREGG V. GEORGIA- PART I
This posting will be a two-part posting in which I will explain the constitutional issues surrounding the death penalty and the reason why capital punishment has just lost one of its most credible and influential supporters. In order to do that, I will need to explain who the A.L.I. is, what happened in Furman v. Georgia, what happened in Gregg v. Georgia, and finally what happened since that decision that has caused the A.L.I. To change its stance on the death penalty.
The American Law Institute (A.L.I.) is an organization made up of legal scholars, lawyers, and judges with the purpose of clarifying American law and assisting in law reform. The A.L.I. has drafted a number of model codes and statutes and many states chose to adopt the A.L.I.'s Model Codes, in their in entirety, or in part. In 1962, the A.L.I. Published the Model Penal Code, which included a section that set forth what they considered to be the ideal way in which to administer the death penalty in the U.S.
In 1972, The U.S. Supreme Court decided the case of Furman v. Georgia, which resulted in a nation-wide moratorium on capital punishment and the invalidation of the death penalty as it was administered at that time. The majority decision was written in four separate opinions. Justice Thurgood Marshall's opinion in this case happens to be the first U.S. Supreme Court opinion I had ever read back in school.
The question before the Court was whether the death penalty violated the Eighth Amendment. The Court found that because the death sentence was given and carried out arbitrarily, it was unconstitutional. In reaching its conclusion, the Court noted that the Eighth Amendment to the U.S. Constitution was based on a similar provision in the English Bill of Rights in 1689, which was concerned with banning arbitrary and discriminatory penalties. This was to protect the dissenters from
the crown from being subject to arbitrary and discriminatory penalties.
The Court pointed to substantial evidence that the death penalty was handed out disproportionately to the poor, minorities, and members of unpopular groups. The Court reasoned that a punishment is "unusual" if it “discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
In one Texas study to which the court referred, in capital cases where there were multiple defendants of different races and the defendants were given separate trials, the white defendants were given a term of life in prison while their black counterparts received the death penalty. Justice Marshall also noted that the death penalty was disproportionately given to men- between 1930 and 1972, 32 women were executed compared to the 3,827 men who were executed.
In addition to finding problems justifying the death penalty as an appropriate or necessary punishment and concluding that it was being arbitrarily imposed in a discriminatory manner, the Court also took issue with the unbridled discretion that judges and juries had in determining who lived and who died.
As Justice Douglas wrote, “...we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.”
This decision invalidated all of the state laws as they were written at that time that imposed the death penalty on a person convicted of a crime. A few years later, the Supreme Court would revisit the issue and the death penalty would be reinstated in the U.S. In the next posting, I'll explain why capital punishment was reinstated and what happened since then that made the A.L.I. change its stance with regard to the death penalty.
The American Law Institute (A.L.I.) is an organization made up of legal scholars, lawyers, and judges with the purpose of clarifying American law and assisting in law reform. The A.L.I. has drafted a number of model codes and statutes and many states chose to adopt the A.L.I.'s Model Codes, in their in entirety, or in part. In 1962, the A.L.I. Published the Model Penal Code, which included a section that set forth what they considered to be the ideal way in which to administer the death penalty in the U.S.
In 1972, The U.S. Supreme Court decided the case of Furman v. Georgia, which resulted in a nation-wide moratorium on capital punishment and the invalidation of the death penalty as it was administered at that time. The majority decision was written in four separate opinions. Justice Thurgood Marshall's opinion in this case happens to be the first U.S. Supreme Court opinion I had ever read back in school.
The question before the Court was whether the death penalty violated the Eighth Amendment. The Court found that because the death sentence was given and carried out arbitrarily, it was unconstitutional. In reaching its conclusion, the Court noted that the Eighth Amendment to the U.S. Constitution was based on a similar provision in the English Bill of Rights in 1689, which was concerned with banning arbitrary and discriminatory penalties. This was to protect the dissenters from
the crown from being subject to arbitrary and discriminatory penalties.
The Court pointed to substantial evidence that the death penalty was handed out disproportionately to the poor, minorities, and members of unpopular groups. The Court reasoned that a punishment is "unusual" if it “discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
In one Texas study to which the court referred, in capital cases where there were multiple defendants of different races and the defendants were given separate trials, the white defendants were given a term of life in prison while their black counterparts received the death penalty. Justice Marshall also noted that the death penalty was disproportionately given to men- between 1930 and 1972, 32 women were executed compared to the 3,827 men who were executed.
In addition to finding problems justifying the death penalty as an appropriate or necessary punishment and concluding that it was being arbitrarily imposed in a discriminatory manner, the Court also took issue with the unbridled discretion that judges and juries had in determining who lived and who died.
As Justice Douglas wrote, “...we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.”
This decision invalidated all of the state laws as they were written at that time that imposed the death penalty on a person convicted of a crime. A few years later, the Supreme Court would revisit the issue and the death penalty would be reinstated in the U.S. In the next posting, I'll explain why capital punishment was reinstated and what happened since then that made the A.L.I. change its stance with regard to the death penalty.
Subscribe to:
Posts (Atom)
