President�s Column for upcoming newsletter

WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 From the Section President: This is the second edition of our newsletter for this year, 2006. The Committee has been at work putting together CLE programs for our members and other criminal law practitioners, and will sponsor ethics seminars in Spokane on November 11, 2006, and in Seattle on November 18, 2006, as well as a joint CLE in conjunction with the WSBA Young Lawyers Division on November 16, 2006, in Seattle. You should be receiving an announcement of those seminars shortly. For the last several years, aside from having the privilege of serving on the Executive Committee of the Washington State Bar Criminal Law Section, I‘ve been designated as a death-penalty liaison for the Criminal Law Section on the Supreme Court Qualifications Committee, which certifies lawyers for trial, appeal and post-conviction representation in death cases. There have been several significant developments in death-penalty jurisprudence that merit comment in this column. You may remember that four (4) years ago, Andrea Yates faced the death penalty in Texas for the drowning deaths of her children. In her first capital murder trial in 2002, jurors convicted her of murder, but recommended a sentence of life in prison. That conviction was overturned on appeal last year, after it was shown that the State‘s psychiatric witness had erred in his testimony. In the second trial, the jury deliberated for thirteen (13) hours before finding Yates did not know her conduct was wrong because of her long history of mental illness. This history included psychiatric hospitalizations and two (2) suicide attempts before she drowned her children in 2001. She was later diagnosed with postpartum depression with psychotic features and schizophrenia. The jurors‘ deliberations included a video evaluation by defense forensic psychiatrists who found that Yates did not know that killing her children was wrong, because she was trying to save them from Hell. Psychiatrists who interviewed Yates shortly after the murders opined she was delusional and believed her children would grow up to be criminals because she had ruined them. The jurors also viewed a videotaped evaluation conducted by Dr. Park Dietz, a State‘s witness who testified during Yates‘ first trial. At the first trial, Dr. Dietz concluded that Yates was not psychotic when she drowned her children, and went on to testify that an episode of ―Law & Order‖ had depicted a woman who was acquitted by reason of insanity after drowning her children. Dr. Dietz later realized that no such episode of ―Law & Order‖ had aired prior to the homicides, and self-reported his error. This disclosure led an Appeals Court to overturn the conviction, and any reference to ―Law and Order‖ was barred from the jury in her second trial. In the first trial the jury was ―death-qualified,‖ because the prosecutor was seeking the death penalty (studies have shown that such jurors are more likely to convict and tend to favor the State‘s presentation of the case over the defense). Because the Criminal Law Section Page 1 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 second trial did not involve the death penalty, the jury was not limited to those who could impose the death sentence. Death-penalty reform, long a hot-button issue in Congress, has returned in the form of House Bill 5040, the Death Penalty Reform Act of 2006. The House Judiciar y Subcommittee on Crime, Terrorism and Homeland Security held a hearing on March 30, 2006, regarding this bill which was introduced by a Congressman from the State of Texas. The subcommittee heard views on the proposed legislation. The Chief of the Capital Case Unit, Criminal Division, United States Department of Justice, Robert Steinbuch, Professor of Law at the University of Arkansas, and Mr. Kent Scheidigger, the Legal Director of the Criminal Justice Legal Foundation, supported the bill, while the Director of the Virginia Capital Case Clearing House and Clinical Professor of Law at Washington and Lee School of Law, David Bruck, criticized the bill. The proposed bill would amend federal law to require the appointment of two ―learned‖ counsel at the time of indictment for a capital offense. This is similar to our law in the State of Washington. The bill would also authorize the delay in the appointment of capital-qualified counsel until the U.S. Attorney General approves the prosecutor‘s decision to seek the death penalty – a process averaging 23 months after indictment. Unfortunately, that differs markedly from the procedure in our state, since capital-qualified attorneys at the time of charge or indictment can aid prosecutors in whether or not to seek the death penalty. The initial appointment of attorneys who are not ―capital-qualified‖ invites the filing of more death penalty cases. Regrettably, prosecutorial decisions to seek death will not be based upon rational consideration of all of the facts, if House Bill 5040 is adopted as proposed. This proposal effectively trumps the process of defense counsel submitting a ―mitigation package.‖ Under prior federal law, counsel experienced in death-penalty litigation were given the opportunity to prepare a written report setting forth the mitigating factors and presenting it to the prosecution before the government had decided on the ultimate sanction. Only Washington, among the states, has this procedure. See, e.g., Cowles Publg. v. Prosecutor’s Office, 111 Wn. App. 502, 45 P.3d 620 (2002). The Court appoints experts pursuant to ex parte applications, including an investigator, mental health practitioners, and a mitigation consultant. The mitigation package is given to the prosecutor, and it is privileged, cannot be disseminated to the media, and is returned to defense counsel once the decision has been made. The efficacy of providing this information in advance is invaluable to the prosecutor in weighing the very tough decision that awaits. Removal of death-qualified lawyers from this important phase will probably add names to the roster of the executed, but is it fair? Is it what prosecutors want? Ask a prosecutor about this. Criminal Law Section Page 2 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 The legislation is openly hostile to mental retardation as a bar to execution. Current federal law now provides for a pre-trial judicial determination of whether somebody is mentally retarded or not. The new legislation introduces a procedure that delays the mental-retardation decision until after the presentation of all evidence-in-chief is presented, including aggravation evidence, and reserves it for jury determination. This invites jurors to consider the traumatic evidence of the death scene in weighing their decision on the mental acuity issue. The objective of this linkage is obvious, but is it fair? A new statutory definition of mental retardation would codify the factors set out in the Supreme Court‘s decision in Atkins v. Virginia, 536 U.S. 304 (2002), in which the Supreme Court held that execution of mentally retarded individuals violates the Eighth Amendment of the U.S. Constitution. Obviously, controversy has risen concerning this definition, and it likely will not survive without substantial mutations which, in turn, will threaten its constitutionality. The proposed legislation also includes an amendment that requires that each capital defendant personally sign a notice before trial listing all mitigating factors upon which he will rely at sentencing. As might be expected, the legislation, if passed, would also add new statutory aggravating factors making more federal crimes eligible for the death penalty. I appreciate hearing any comments that you may have. As always, I personally invite you to our Executive Committee meetings, or feel free to e-mail any of our Executive Board members with your thoughts or suggestions pertaining to our section. Best Regards, Mark E. Vovos Insanity or Diminished Capacity? By Stephen Garvin Are you prosecuting or defending a ―crazy‖ defendant? Many defendants meet the everyday definition of ―crazy‖ by acting in an anti-social or odd manner and violating, sometimes egregiously, social norms. But how does the everyday term ―crazy‖ that interact with the legal issues of competency, capacity or diminished capacity, and sanity? This article will discuss Washington‘s legal framework for dealing with the relationship between capacity and sanity. Before diving into the heart of the capacity/sanity issue I will touch on competency. A defendant must be competent for a case to proceed. Reading through RCW 10.77 et seq. a couple times should get the attorney pointed in the right direction Criminal Law Section Page 3 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 with regards to the competency law and procedures. Unless a defendant is competent the case will never reach the issues of capacity and sanity. Assuming the defendant is competent, what about capacity and sanity? The Washington Supreme Court in State v. Atsbeha, 142 Wn.2d 904, summarized the admissibility of expert testimony on the issue of diminished capacity as follows: To maintain a diminished capacity defense, a defendant must produce expert testimony demonstrating that a mental disorder, not amounting to insanity, impaired the defendant's ability to form the culpable mental state to commit the crime charged. Admissibility of such testimony is determined under ER 401, ER 402 and ER 702. Under ER 702, expert testimony will be considered helpful to the trier of fact only if its relevance can be established. Relevant evidence, as defined under ER 401, is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.‖ It is not enough that a defendant may be diagnosed as suffering from a particular mental disorder. The diagnosis must, under the facts of the case, be capable of forensic application in order to help the trier of fact assess the defendant's mental state at the time of the crime. The opinion concerning a defendant's mental disorder must reasonably relate to impairment of the ability to form the culpable mental state to commit the crime charged. Atsbeha at 921. In Atsbeha the defendant was charged with possession of a controlled substance with intent to deliver. Id. at 906. The Atsbeha trial court held extensive pretrial hearings on the admissibility of a physician‘s opinion about the defendant‘s mental condition and capabilities. Id at 908. The defendant‘s long-term physician testified that the defendant had a physiological degeneration of his brain caused by syphilitic encephalopathy causing ―diffuse organic brain damage‖. Id at 908-910. This condition led the defendant to a subjective but incorrect believe that he was acting as an agent of the police when he purchased illegal drugs for an undercover police officer. Id. at 910. The defendant‘s brain injury, depression, and cocaine and alcohol condition left him ―very impulsive and impaired to the point that he could not care for himself or engage in simple life-sustaining behavior such as feeding himself or seeking medical attention when necessary. Id. at 911 (majority opinion) and 925 (dissent by Justice Sanders). Despite this significant physical brain damage the defendant‘s physician testified that the defendant was capable of retrieving an object and responding to a request to buy something and give it to another person. Id at 910-911. Criminal Law Section Page 4 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 The Washington Supreme Court noted that the proffered testimony in Atsbeha might very well have been admissible to establish an insanity defense. Atsbeha at 920. The Supreme Court explicitly rejected the analysis of the Court of Appeals that had held that the defendant‘s expert testimony was admissible to negate any specific intent to commit a crime. Atsbeha at 920. Court stated as follows: Any belief by Respondent concerning his relationship with the police officer, however, was not evidence of impairment of his ability to form the intent to deliver the controlled substance. It was some indication that Respondent also had the ability to form an intent to help Detective Caldwell catch a main drug dealer. This evidence would be relevant and admissible to establish an insanity defense under RCW 9A.12.010, [footnote omitted] but not relevant and admissible to establish a diminished capacity defense. Petitioner's belief, as indicated by Dr. Rose's testimony, would be some evidence under an insanity defense of his inability to perceive the nature and quality of the act with which he was charged. Respondent chose not to raise the defense of insanity when the trial court offered the opportunity. Atsbeha at 920. This article by no means addresses all the nuances of evidence, substantive law, and mental diagnosis but it should help the practitioner focus on the proper and improper subjects of an expert opinion. If you are in a prosecution role facing an expert under the guise of diminished capacity you would be well served to review Atsbeha and carefully dissect exactly what the defense expert is saying. For the prosecutor Atsbehais full of inlimine issues and case strategy implications. If you are a defense attorney you should consider the implications of Atsbeha and the facts of your case to determine if the proper defense is diminished capacity, insanity, or perhaps both. DRUG DIVERSION COURTS Prosecutor’s Office and Brian Wynne, 3L By Barbara Mack, King County King County‘s drug diversion court (KCDDC) was established in 1994, among the first in the nation. Under our program defendants charged with certain drug and property crimes may elect to participate in the program instead of proceeding with a trial or a plea. Under the drug-court waiver of rights and agreement, if the defendant successfully completes the rigorous program, his/her case is dismissed. They agree to a stipulated trial based on the police reports if they are not successful. The goal is to disrupt the cycle of substance abuse that often motivates criminal activity. Drug courts accomplish this by court supervision, comprehensive substance abuse treatment, random drug testing and court-levied incentives and sanctions. Criminal Law Section Page 5 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 RCW 2.28.170 sets minimum eligibility criteria. Defendants who are charged with serious violent offenses, sex offenses, offenses involving a firearm, or offenses that caused serious bodily harm are not eligible for any Washington drug court. Defendants are also not eligible for drug courts if they have been previously convicted of a serious violent offense or sex offense. Beyond those prohibitions, each county can establish its own criteria. Violation of the Uniform Controlled Substances Act (VUCSA) possession cases are universally accepted when small amounts are involved. Some counties also accept Class C property crimes if the crime is motivated by addiction or substance abuse. In King County, the restitution for eligible property crimes must be $1500 or less, since KCDDC requires drug court clients to pay all restitution before graduating. Some counties, including King, Pierce and Snohomish, accept VUCSA deliveries and possession with intent to deliver or manufacture involving small amounts of cocaine, heroin, and marijuana. In King County, a defendant‘s eligible case is either filed directly into drug court, or can be transferred after determination of eligibility. Most courts allow offenders to sample the program during a trial period before requiring a formal opt-in. When optingin to a pre-trial drug diversion court, defendants sign a waiver and agreement and agree to a stipulated trial, waiving their right to a jury. In most post-plea programs, the case is dismissed after the defendant successfully completes the program. One of the distinguishing characteristics of drug courts is the team approach that includes the judge, prosecutors, defense counsel, and treatment staff. Drug courts employ a non-adversarial, therapeutic approach to each case. The judge coordinates team activities and ensures the integrity of the program as an institution of justice. Prosecutors and defense attorneys work together as part of the team determining what‘s in the best interest of the drug-court client and his/her sobriety. The entire team, including judge, attorneys, case managers, and treatment providers, develop individually tailored treatment options for struggling clients based on the information and services available at the time. In King County, soon after the first appearance in court, the defendant attends an orientation and intake session. Drug Court personnel gather information on the defendant‘s substance abuse, treatment, personal, social, medical, and mental health histories and determines their readiness for recovery. With this information appropriate treatment referrals can be made. Information relating to a defendant‘s health, substance abuse, or mental health is subject to strict privacy policies under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 290, and 42 CFR Part 2, which protect a defendant‘s medical records privacy. Once in treatment, all KCDDC clients are required to provide 2 random, observed urinalyses per week, attend group meetings and individual counseling sessions as required by their treatment agencies, and attend 3 sober-support meetings per week. King County contracts with nonprofit treatment programs in Washington that provide a Criminal Law Section Page 6 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 wide variety of services, including inpatient treatment ranging from 28 days to a year, and intensive outpatient treatment. The court also provides treatment for those with cooccurring disorders (COD). Studies show that people with both mental health diagnoses and drug addiction are far more successful if the treatment for both is integrated. Treatment agencies provide the court with regular reports on the client‘s progress, and the report is used as the basis for the client‘s next hearing in court. In King County, most clients appear every 30 days. After they have progressed to level 2, they may only appear every 6 weeks if they‘re in compliance. Regular attendance at hearings in the courtroom is an indispensable aspect of each drug-court program. Although the hearings are short, they set the tone for the program, and give the judge a chance to connect with each drug court client. Weekly court hearings are common in small programs. The hearings give clients the opportunity to show his or her progress or regression along the path to recovery. Prior to each hearing, the drug-court team staffs each client‘s case to discuss the client‘s progress (or lack thereof) and agree on the next steps. For clients in full compliance, including negative UA results, the court acknowledges progress with incentives and gifts, ranging from verbal accolades and applause to small gifts or gift certificates. These rewards motivate clients to continue working towards sobriety, and build their confidence. When an offender relapses or fails to appear for treatment sessions, UAs, or sober-support groups, judges levy sanctions. Common sanctions include observing drug court for a period of time, community service, self-reflective writing assignments, additional attendance at sober-support meetings, work crew, or jail time. In King County we also have an alumni panel (of drug-court graduates) that meets with clients who are not in compliance, and discusses their problems and suggests solutions. Sanctions ratchet upward after repeated noncompliance. Sanctions hold offenders accountable for their actions, and are a critical component of success of the program. Consistency in application of sanctions and rewards is essential to the integrity of the program. Clients who repeatedly fail to comply may be terminated from drug court. At termination in a pre-trial drug court, the charge is adjudicated by the previously agreed stipulated trial. In post-plea programs, the sentence is imposed. Defendants who succeed graduate from the program can have their case or cases dismissed. Graduation requirements and program durations vary, but most require commitments of 10 months or more with a substantial period of uninterrupted sobriety. Recent statistics from the King County program show the average time to graduation is 15-18 months. Addiction knows no socio-economic boundaries. In King County we have drug court participants who own their own businesses, who are involved in health care, law, construction, and boat building. We have artists, students, engineers, and the homeless. They range from 18 to 65 years of age. Substantial numbers, both men and women, have Criminal Law Section Page 7 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 been victims of sexual abuse, domestic abuse, and other violence. What happens to those who successfully complete drug court? They reunite with estranged families and bear healthy babies. They go back to school and get jobs. They save society the cost of addicted babies, of prison, of police enforcement, of identity theft and other drug related crime. Most importantly, they become productive members of society and give back to their communities. Drug courts have become an important new mechanism for achieving criminal justice. The Story, The Whole Story, Nothing But the Story, So Help Me Judge! By J. R. YOSEPH, Defense Attorney, Vancouver Washington This article is intended to be a primer of sorts, designed to help the criminal defense lawyer present his or her client‘s story to the trier of fact, whether that is a prosecutor pre-trial, a jury at trial, or a judge at sentencing. The art of criminal defense sometimes is in getting someone to listen to your client‘s story and really hear what happened from the client‘s perspective. This may result in a dismissal, a stay of proceedings, a diversion referral, a plea bargain that the client can live with, or some other disposition that satisfies everyone involved in the case. There are too few tools for developing and telling your client‘s story, and the skillful defense attorney must make use of every one of them. One of those tools is the defense interview of the State‘s witnesses. These interviews cannot be approached without preparation and thought as to how the lawyer wants to present his client‘s story to the prosecutor at the interview, and later, to the jury at trial. If you have tried many criminal cases, you know that all too often, you have a client who cannot take the stand and tell his story to the jury. When this happens, and I suggest that this is in most criminal cases, it then becomes your job to tell your client‘s story (facts of the case) and then argue that your client is not guilty of the crime charged (law of the case). When your client cannot take the witness stand, your job is much harder, and the goal of a not-guilty verdict that much more difficult to obtain. So, how do you tell your client‘s story without putting him on the stand? There are many reasons why your client cannot take the stand, and often times this is the place where you must start your analysis of how to tell his story. There are prior bad acts, there are prior convictions, there are mental defects or personality disorders, there is below-average intelligence, there is a personal history, there is a client who is just not loveable by his mother, there is a client who cannot possibly stand up to the cross examination of the skillful and prepared prosecutor. These are a few of the many reasons why you cannot put your client on the stand. Why put him or her on the stand to allow defeat to be snatched from the jaws of victory by the badly framed Criminal Law Section Page 8 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 response to a question, by the lack of contrition in the client‘s behavior, or by the unpleasant exchange of the client‘s cross-examination? The choice to take the stand and testify is the client‘s, but part of your job is to convince the client not to take the stand when it is in his or her best interest not to, and you can tell the client‘s story through the other witnesses. How to develop the facts necessary to tell the client‘s story is perhaps the most important reason for thorough and effective pretrial witness interviews. Washington has some good case law on the wide latitude given to defense counsel to propound evidence on the client‘s behalf. The gist of the cases stand for the proposition that the defense must be given great latitude in presenting the defense case to insure that the accused gets a fair trial. I am not going to list the cases here, but I am going to urge that you make a quick tour of those cases and familiarize yourself with how far the appellate courts will let you go in developing the defense case. The appellate courts would much rather let a defense lawyer get away with a few shenanigans at trial than have to reverse a case for ineffective assistance of counsel. So, push the river. The latitude the defense gets is often much farther than the prosecutor wants to let you go with a particular witness, and counsel needs to be prepared to address this issue if the prosecutor attempts to limit questioning during an interview. Since deposition rules do not apply to criminal cases, if the prosecutor instructs the witness not to answer, then your remedy is by motion to a judge to get a second interview with the witness with the instruction that the witness will answer the questions posed. Armed with the case law, most judges will give you the latitude you need to make your point. Those who don‘t sometimes find their names in print. By now it must be generally accepted that recorded pretrial interviews are a right of a criminal defendant. More than interviews, they must be recorded and the law clearly is that the interview can be recorded electronically (to be later transcribed) or recorded by a court reporter, either informally or formally under the rule of depositions. You must insist that this right be respected and all witnesses be interviewed completely and without interference by the prosecutor. Nothing less will suffice, so do not settle for less. You must preserve the interview so that you can use the facts you develop in the interview on cross-examination of the witness. No matter which manner of recording is chosen, the recorded interview becomes your opportunity to develop the facts necessary to tell the client‘s story, and preserve those facts so that they can be presented in opening statement, then one by one to the fact finder during the trial, and then recited to the fact finder in closing argument in such a fashion to convince the fact finder that your client is not guilty, or not guilty as charged (guilty of something else). Do not allow the State to take Criminal Law Section Page 9 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 this essential tool away from you, or dilute by interfering in the interview process, for it is the most effective tool that you have to tell the client‘s story from his or her perspective. Clearly the interview can be recorded by electronic or stenographic means under present Washington law. Do not allow a prosecutor to insist that the interview cannot be recorded or not be recorded without the witness‘ permission. It is clear that the Washington Privacy Act does not apply to non-private conversations. A pre-trial interview is not a private conversation, so that recording is proper. There is a rule amendment to the Criminal Rules for Superior Court pending before the Supreme Court to insure the defense the right to record witness interviews, but if the prosecutor objects, take the issue to a judge. I have not had a judge deny recording when presented with a motion. (If you need a copy of mine, email me and I will send it to you.) I incorporated recorded interview language into paragraph 11 of my omnibus application many years ago and have not had a problem since doing so. My sample language is as follows: 11) To have a recorded interview with the State‘s witnesses or to take the deposition(s) of any witness who refuses to participate in a recorded interview. Ruling: Granted Denied Reserved Names of witnesses: All witness witnesses who refuse electronically or stenographically recorded interviews. The Defense requests whether or not the State will stipulate to recording the interviews without seeking permission from the witness. If the state will not so stipulate, a separate motion will be filed and argued. The defense requests a date to argue said motion within the next 14 days. Ruling:_____________________________________________ Date of Hearing on Motion:_____________________________‖ Since some prosecutors fear the result, they now concede the point as a matter of routine. I believe that to be true of judges also, since they supported this position by instructing the recalcitrant prosecutor to allow the recording. All too often, prosecutors Criminal Law Section Page 10 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 are grateful that you are recording the interview so that they too can have an accurate recording of what is said at the interview. I am most gracious and always offer to provide the prosecutor and the witness a copy of the transcript if the case is going to trial. Imagine the witness on the stand, clinging to his copy of the transcript on crossexamination and searching it every time defense counsel asks him a question so that he gets his answer just right. It is a sight that impresses juries, particularly if the witness has already contradicted himself on the state‘s direct examination. There are many books on the techniques for handling witnesses. Great lawyers are usually also great story tellers. Some have written books on how to develop the facts in interviews and then cross examination from which you can tell your client‘s story. Get them and devour them, schooling yourself on the techniques that the great trial lawyers use. Posner from Colorado, Spence from Wyoming, Haynes from Texas, Krieger from Miami, and Bailey from Massachusetts, amongst others, have all written books on how to examine witnesses, tell the client‘s story, and argue to win. I cannot possibly recount all the wisdom and advice of those sages — I can only counsel that you acquire and consume these volumes, read, reread and practice the techniques in them until you are confident in your own skills to do what they do and have done. One of the earliest tomes is called The Art of Cross Examination by Francis Wellman. At some point, we were all told that this is the bible of great trial lawyers. Well, you don‘t get to conduct great cross examination without having digested the knowledge of others and then used that knowledge to interview the witnesses in your case, so you know just how far you can take your cross examination of that witness when they hit the stand. I would say that most witnesses want to tell the truth. If you give them the opportunity to do so, they will tell it in their own way. You may have to draw it out of them, or provide them the means by which they can tell the truth in such a manner as to allow you to pick and choose the facts which support your client‘s story. You may have to spoon feed them fact by fact, you may have to embarrass them with the ridiculousness of a point they have recited, or you may have to cajole or nurture them until they realize that the facts they have knowledge of must be disclosed in their entirety for the truth to be told. Many times you won‘t know until you are sitting across from the witness in the pretrial interview which tack you have to take; you must be prepared to follow your gut instinct and go down that road with the witness to uncover and expose the facts that you need for your client‘s story to blossom. The experience will be as pleasant or unpleasant as the witness wants to make it, but the goal must be achieved. Whether it is a Lee Bailey ―marine to marine‖ type question, or a Gerry Spence compassionate crosexamination, you must be prepared to go there with the witness. Criminal Law Section Page 11 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 Sometimes you have the luxury of knowing in advance which way you are going to have to play it. This is the best, because it allows for more reflection and artful phrasing. Don‘t be afraid to take a time out if necessary, don‘t let the prosecutor press you for time. This is your tool and perhaps your client‘s only chance to get the facts out. Use the time wisely, but effectively. If the interview gets too contentious, a time out may be needed, ditto if the witness breaks down in emotional response to some facet of the case. Experts need to be carefully prepared for, and that is a subject of its own for another article. Scheduling the interviews can often be a pain in the calendar, but some thought must be given to this issue as well. The general issue is, how much evidence that is favorable to the defense do you want to disclose to the prosecutor or complainant prior to the complainant‘s interview. Some cases cry out for a complainant‘s interview prior to the cops and defense witnesses; some cases need the opposite approach. You must think about the order of the interviews before scheduling them so as to maximize the impact of your client‘s story to the prosecutor. This is particularly true if your goal is resolution by agreed plea. The prosecution must see the holes in its case and be able to present and explain these to the complainant in order to be able to go where you want them to go. This is especially important for the complainant who won‘t recognize the case weaknesses, or the one who bolsters or amplifies the gravity of the bad facts until they are unbelievable by the prosecutor or the jury. Some thought must be given to how to present the defense story to the prosecutor at the interview. If you are going to pose a question to a witness with a factual foundation not supported by the police reports, it is a good idea to have a basis for doing so. I frequently get declarations under oath from witnesses that describe a factual basis for a question so that the prosecutor cannot jump in and object or say ―Counsel, those are not the facts of this case.‖ Particularly where the prosecutor has not interviewed the defense witnesses, this is a good idea. You can then show the prosecutor that you have a witness who contradicts the facts in the police report or that the complainant is reciting, and move on from there. This serves two purposes: it lets the prosecutor know that you know they have a contested fact in their case, and it causes the prosecutor to look with a little more scrutiny at whether or not the facts reported to the cops or by the cops is factually accurate enough to be believed by the jury. Other interview preparation items include having photographs of the ―crime scene‖ taken for your use at interview if there is an issue of who saw what from where or what the scene looked like. Once you commit the witness to a version of the facts, then you can pull out the photos and impeach the witness with it. I recently had a case where the cop testified that a witness in the dining room did not have line-of-sight vision to Criminal Law Section Page 12 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 where an assault occurred because a wall was in the way and the witness was sitting in a chair. I had the witness sit in the same chair in the same room and take a photo of his field of view. I also had the witness prepare a declaration under oath describing the view that he had of the assault. End of story for the prosecution. If you cannot photograph the scene, then a scaled drawing of it may help. We have all had a witness sketch what he remembers the scene looked like and ended up with a page of chicken scratches that you cannot make sense of later on. A scaled drawing can overcome this problem if it is presented during the interview. Once you have had the witness draw the scene, and you are secure that his recollection is accurate even if his drawing is garbage, you can present the scaled drawing, have the witness ID it, and then mark it as an accurate exhibit. Again, prosecutors do not have the time to devote to these very simple tasks during their cases, and a little effort to do this can go a long way to resolving a case. Time is a difficult factor to deal with in interviews since everyone‘s perception of it is different. I am still searching for good ways to measure, assess and preserve a witness‘s perception of how long an event took to transpire. Time does not seem to matter much to cops, except when it goes to their ability to control a criminal or crime scene, in which case it never takes more than a few seconds for them to do so. All too often, however, an accurate timeline is essential to the defense case, and not so important to the state‘s case. If this is presented in client‘s case, you must take all steps imaginable to commit the witness to a timeline that is either 1) impossible under the facts, 2) favorable to your client, or 3) at least not in keeping with that of the prosecution. There may be other alternatives, and don‘t rule them out either. Recently, I had a case for resisting arrest charged by the prosecutor in which the arresting officer did not cite my client. When I got the cop in interview she described the resist. She admitted it was 3 to 5 seconds at most. I interviewed her backup cop, the one who ―contacted‖ my client when he supposedly resisted. I asked him if the resistance lasted 3 to 5 seconds like the first cop described. The 6'2", 220 pound cop who subdued my client (all 5'6'‘ and 150 lbs of him) squared his shoulders and said ―Nope, a lot shorter than that, maybe 2 seconds at most.‖ ―About long enough to flinch?‖ I ask. ―Yup!‖ says the backup. ―Don‘t most folks flinch when you grab their wrists to cuff ‗em?‖ I ask. ―Yup.‖ says the backup. Case dismissed conditionally. Those witnesses who won‘t or don‘t tell the truth must be exposed for the liars that they are. Their testimony must be contrasted and contradicted by the other witnesses who are called, so that the falsity and deception of their testimony is exposed to the fact finder in the harsh light of truth, righteousness and full disclosure. Only by a complete Criminal Law Section Page 13 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 mastery of the facts of the case and a careful analysis of each witness and their motives, incentives and reasons for deception will you be able to ferret out the real facts that support your client‘s story. This knowledge only can come from complete, thorough and vigorous preparation for and conducting of pretrial interviews utilizing the techniques of the trial masters. This means that you must not only interview your client, but you must interview all your client‘s witnesses prior to conducting interviews with the state‘s witnesses, so that you know when to confront, cajole, or concur with the witness who is being interviewed. You must schedule the pretrial interviews so that the witnesses who will give you the kernels of truth to confront those who are less than truthful are interviewed first so that you can confront the shameless liars with the truth and back them off of their lies. You must carefully scrutinize the police reports and witness statements, the medical reports, the Smith affidavits, the forensic reports, the evidence lists, and every other point of information available to you in discovery to be able to confront the witness and expose his lies and shame, so that he will be embarrassed and ashamed and admit those facts necessary for you to tell your client‘s story. Only by complete mastery of all the facts will you be able to get the witness to recite the facts necessary for you to recite your client‘s story to the prosecutor, the jury or the judge. The idea is to reach an outcome that all can live and rest with peacefully. There will always be a subset of witnesses who will never back down, never admit the real facts, never give you the smallest grain of truth from which you can construct the foundation on which your client‘s story must stand. Sometimes these are the best witnesses of all, for in spite of all the contradictory evidence, all the other information that demonstrates that they are not telling the truth, they persist in their version of the facts. This allows you to single them out to the fact finder and demonstrate that beyond any reasonable doubt, their testimony cannot be believed and that, therefore, reasonable doubt exists. Almost every case has one such witness, most always someone who is so heavily emotionally invested in the case for one reason or another, that he cannot possibly appear reasonable in his testimony. These witnesses must be exposed for what they are, for what their emotions are, and for the lies they insist are the truth. Not by ridicule or condemnation, but by a carefully constructed demonstration of facts beyond dispute, testified to by the other witnesses in the case, that their deception becomes patently obvious to the fact finder. Then and only then, will they be exposed. You won‘t know who these witnesses are until you conduct your pretrial interview and their bias, prejudice and relentlessness are shown. You will know them by the set of their shoulders, the scowl on their face, the contentiousness of their answers and the sound of their voice. In a trial for theft of an 82.5-karat emerald, appraised at $250,000, my client had entered into a contract to swap the emerald and some cash for paintings and Tiffany Criminal Law Section Page 14 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 lamps in a complicated three-legged transaction. My client insured the emerald for $300,000 with Lloyd‘s of London and paid the premium himself. Of course, the emerald disappeared during the transaction. Slowly I brought these facts out, then the story of where he obtained such a jewel. Turns out he bought the emerald from a Mr. Wong, in Hong Kong, for $10,000 cash, and brought it back to the United States undeclared. No, he had no way to contact Mr. Wong, had not contacted Mr. Wong since purchasing the emerald, and could not remember the bar where they met or who introduced them to each other. No, he had never made a claim with Lloyd‘s, although my client had contacted the carrier and made arrangements to do so. The prosecutor was furious when the judge dismissed the criminal prosecution at the close of the State‘s case on motion and told the complainant to go file with Lloyd‘s for his loss. If I had not heard this ridiculous story in interview, I never would have believed it. My client never got near the stand, and the judge and I still laugh about this case 20 years later. The more you know about the case, the more you are able to defend your clients. Be prepared. ―C‘est la guerre.‖ Fight the good fight. The Right to Counsel By Josephine C. Townsend, Vancouver, WA In the recent decision by the Commission on Judicial Conduct, In Re Ottinger, CJC Case No. 4475, http://www.cjc.state.wa.us/ King County District Court Judge Mary Ann Ottinger received a 30-day suspension for failing to advise defendants of their right to counsel, accepting plea‘s from defendant‘s without advising them of their right to counsel, and holding probation revocation hearings without advising client‘s of their right to counsel among other violations of the judicial canons. A pretty large laundry list of egregious acts for someone so experienced on the bench. So how does one get so afar afield? Lack of supervision? Yep. Lack of knowledge? Perhaps. Lack of empathy? Perhaps. Lack of judicial temperament? Perhaps. Lack of resources? Absolutely. Many times when shortcuts are taken, they are taken because of a lack of resources. Or the person might say, ―that is what we always have done.‖ There is certainly no excuse for the actions of the judge, and the commission along with the Supreme Court have provided notice to all judges that they have a duty to be mindful of the great responsibility they have to everyone they serve, including the defendants who come before them. Not excusing the errors made by the judge, there are several counties where funding is so short that there is no prosecutor, nor a defense attorney at arraignment. The judge sits alone. How can we expect that to work? Washington state is 50 out of the 50 states in a lack of funding for defense services. Where district court caseloads are heavy and speedy trial timelines are short, defendants get pushed through the system without regard to their rights under the Constitution. So what is the harm in not providing counsel? Plenty, if you are the one on the other side of the law. Many misdemeanor offenses carry ―collateral consequences‖ which neither all judges or prosecutors are Criminal Law Section Page 15 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 inclined to tell folks. These collateral consequences take effect because of the conviction, but the imposition of the consequence is by an outside source or agency not associated with the criminal court. If your client is convicted of a DUI, then separate and apart there is the DOL suspension, and they can be subjected to travel restrictions such as denial of entry into Canada. Canada considers DUI‘s to be an aggravated felony and will deny entry into their country of anyone who has been convicted of a DUI. If your client gets a conviction for possession of marijuana or drug paraphernalia, he will lose his right to obtain a federal or state student loan. If your client is convicted of any offense which has a ―DV‖ (Domestic Violence) tag attached to it, federal law prohibits him from ever possessing a firearm. If your client is convicted of any gross misdemeanor and he is not a citizen of this country, he may face deportation. District court matters and the consequences associated with conviction mandate that effective defense counsel be present and assigned to assist clients at every stage of the proceedings. That certainly means arraignment. Some jurisdictions have recently started providing a defense attorney for EVERY defendant coming before the court for arraignment. Instead of speaking to a prosecutor about their case, they get to talk to a defense attorney who can advise them of all the facts surrounding their case, from a procedural standpoint, from a fact specific standpoint, and who can apprise them of whatever collateral consequences may occur if they are convicted. Everyone who comes before the court should be apprised of their right to counsel, but more importantly, everyone who comes before the court should actually have the opportunity to have counsel present to assist him. We need to move forward as a state in this direction and we need to push the legislature and our local governments to provide appropriate funding for criminal defense. In the meantime, most of us know right from wrong. Most of us know what should happen at an arraignment. If you see it being done wrong, step up and help that unrepresented defendant. We can all take on at least one pro bono client. And if you have a judge who does not follow the law, well you can step up and do something about that too. The folks in King County did. Criminal Law Section Page 16 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 M E M BE R SH I P R EC R U I TM E N T VOL.11 NO.2 Vancouver, WA 98666-5000 (360) 397-2261 (360) 397-2230 michael.vaughn@clark.wa.gov Term: 2005-2008 Board Members: John C. Monter (Prosecution) 329 Yakima County Courthouse 128 N 2nd Street Yakima, WA 98901-2631 (509) 574-1280 (509) 574-1281 Fax john.monter@co.yakima.wa.us Ronald A. Hammett (Defense) P.O. Box 1248 Okanogan, WA 98840 (509) 422-0504 RonH@communitynet.org Michael S. Clark (Defense) Krupa & Clark 1008 Yakima Avenue, Suite 201 Tacoma, WA 98405-4850 (253) 573-1000 (253) 428-0330 Fax kclmike@qwest.net Rebecca C. Robertson (Prosecution) City of Seattle Public & Comm. Safety Division 700 Fifth Avenue, Suite 5350 P.O. Box 94667 Seattle, WA 98124-4667 (206) 684-8526 (206) 684-4648 Fax rebecca.robertson@seattle.gov Francisco A. Duarte (Defense) Arbor Bldg., Suite 210 1621 114th Avenue SE Bellevue, WA 98004-6905 (425) 451-1995 (425) 451-3820 FAX fduarte@foxbowmanduarte.com Re c ruit me nt e ve nt s for la w sc hool st ude nt s be gi n i n t he fal l of eac h ye a r. Sponsored socia l s a re sc hed uled for Sea ttl e Uni ve rsi t y, Gonz a ga La w Sc hool, a nd Le wi s & Cl a rk La w Sc hool. If you woul d l ike t o host one of t he se e ve nt s ple a se not i fy t he sec ti on c ha i r. CALE NDAR OF E VE NT S September 7TH & 8TH: Criminal Justice Institute 2006: Washington State Convention & Trade Center, Pike Street between 7th & 8th Avenues, Seattle Washington. November 2006: 2 Ethics CLE’s to be hosted by the Section. Seattle Law School November 18, 2006 8:30 – 12:00 Noon and November 11, 2006 8:30 – 12:00 noon in Spokane at Gonzaga Law School. See website for details! Criminal Law Section Executive Board: Chair: Mark E. Vovos (Defense) 1309 West Dean Avenue, Suite 100 Spokane, WA 99201-2018 (509) 326-5220 (509) 326-5226 Fax mvovos@concentric.net Secretary-Treasurer/Immediate past Chair: Josephine C. Townsend (Defense) Attorney at Law 205 East 11th Street, Suite LL8 Vancouver, WA 98660 360-694-7601 Fax: 360-694-7602 JCTownsend@aol.com Chair-elect: Michael W. Vaughn (Prosecution) 1013 Franklin Street P.O. Box 5000 Criminal Law Section Page 17 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 Stephen W. Garvin (Prosecution) Spokane Co. Prosecuting Attorney's Office 1100 W Mallon Avenue Spokane, WA 99260-0270 (509) 477-2809 Sgarvin@spokanecounty.org James A. Hershey (Prosecution) P.O. Box 2596 Wenatchee, WA 98807-2596 (509) 667-6202 (509) 667-6490 Fax james.hershey@co.chelan.wa.us Barbara A. Mack (Prosecution) King County Prosecutor's Office King County Courthouse 516 Third Ave Seattle WA 98104 (206) 296-9000 (206) 205-5612 Fax barb.mack@metrokc.gov Roger S. Rogoff (Prosecution) King County Prosecutor's Office 401 4th Avenue N., Room 2A Kent, WA 98032-4429 (206) 205-7400 Roger.rogoff@metrokc.gov Wade S. Samuelson (Defense) Olson Althauser Lawler & Samuelson PO Box 210 Centralia, WA 98531-0210 (360) 736-1301 wade@centralialaw.com John Strait (Defense) Seattle University School of Law 900 Broadway Seattle, WA 98122-4340 (206) 398-4027 (206) 398-4077 straitj@seattleu.edu VOL.11 NO.2 Joel R. (Bob) Yoseph (Defense) Law Office of J.R. Yoseph, P.S. 1305 Main Street Vancouver, WA 98660-2918 (360) 694-8718 (360) 693-7081 yryoseph@pacifer.com You can visit our website at www.WSBA.org click on Sections and then click on Criminal Law. If you are receiving this newsletter via e-mail, click on the link below: http://www.wsba.org/lawyers/groups/crimin allaw/default1.htm. At our website, we post our executive board roster, email and other contact information as well as our calendar of events. You can join our list serve on Yahoo and discuss topics of interest with your colleagues. The Criminal Section Executive Board meets the First Saturday of every month at the 13 Coins Restaurant, in SeaTac, across from the SeaTac Airport. Meetings begin at 9:15 a.m. and members are always welcome to join us. If you have an article you would like to submit for entry in the section newsletter, please submit your materials to JCTownsend@aol.com. This is a publication of a section of the Washington State Bar Association. All opinions and comments in this publication represent the views of the authors and do not necessarily have the endorsement of the Association nor its officers or agents. Criminal Law Section Page 18 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 Criminal Law Section Page 19 of 20 WA S H I N G T O N S T A T E B A R A S S O C I A T I O N CRIMINAL LAW SECTION NEWSLETTER SEPTEMBER 2006 VOL.11 NO.2 Upcoming 2007 Election of Officers & Executive Committee Members Over the next few months, the Criminal Law Section will be developing a slate of nominees for the next election of open officer and executive committee positions. Officers – according to the bylaws, the Executive Committee includes the Chair, Chair-elect, Secretary/Treasurer and Immediate Past Chair. No designation is required as to defense or prosecution practice or orientation for these positions. Executive Committee – an additional twelve members include six individuals who have a significant defense practice or orientation and six who have a significant prosecution practice or orientation for a total of 16 members serving on the Executive Committee. Term of Office – the term for officers is one year and executive committee members serve a three-year term. Following is the status of the current leadership as well as positions which will be open for the next election. Based on the calendar year, the next term of office will begin on January 1, 2007, with an election by mailed ballot to be conducted in November 2006. Member Defense 1. 2. 3. 4. 5. 6. Clark, M. Duarte, F. Hammett, R. Samuelson, W. Strait, J. Townsend, J. Status of term by September 2006 2006/07/08 2005/06/07 2006/07/08 2005/06 2005/06/07 2006 - Secretary/Treasurer & Immediate Past Chair 2006 - Chair 2005/06/07 2004/05/06 2006/07/08 2005/06/07 2006/07 2006/07/08 2004/05/06 2006 - Chair-elect Status of position for 2007 Year 2 of term Year 3 of term Year 2 of term Open Year 3 of term Open Immediate Past Chair Year 3 of term 7. 8. Prosecution 9. Vovos, M. Yoseph, J.R. Garvin, S. Open Year 2 of term Year 3 of term Year 3 of term Year 2 of term 10. Hershey, J. 11. Mack, B. 12. Monter, J. 13. Robertson, R. 14. Rogoff, R. 15. Vaughn, M. 16. Vacant Open Chair Open If you are interested in an open position, please contact Mark Vovos, chair, Criminal Law Section, at 509-326-5220 or mvovos@concentric.net. Criminal Law Section Page 20 of 20