Friday, June 25, 2010
Saturday, May 1, 2010
Minor Marijuana Charges: The Jurisdictional Vagaries
From where I sit writing this post you could draw a 100 mile circle and encompass numerous different prosecutorial jurisdictions. Snohomish County, King County, Pierce County, Thurston County, Skagit County. Chelan and Douglas to the East, Kitsap, Jefferson, Clallam, and Island to the West. Even within each of those jurisdictions there are numerous municipal courts - Edmonds Muni, Everett Muni, Seattle Muni, the list goes on and on. Yet the way these various jurisdictions treat the possession of a small, personal use amount of marijuana is as varied as the communities within which they exist.
In Snohomish County District Courts, prosecutors will dismiss a first offense misdemeanor marijuana possession case upon being provided proof the defendant completed an 8 hour Alcohol Drug Information School (ADIS). Same charge, but in Chelan County, and not only will the prosecutor likely not drop it with proof of ADIS, they will recommend jail time for a conviction (even beyond the mandatory minimum 1 day that somehow survives in state law to this day). In the City of Seattle, if you are contacted by a Seattle Police officer about the same offense, you may not even be arrested or referred for charges. If pulled over by a State Trooper, still in the city, you will be headed to state court (not Seattle Muni) and, depending on which way the policy wind is blowing, are likely to at best be put on a year of informal probation until you can get a dismissal.
To a lay person this seems like insanity - because it is. The prosecutors in this state need to get on the same page about the treatment of minor marijuana offenses. The punishment I face should not be dependent on mile markers, city limits, or county boundaries. Prosecutors need to come to see themselves as multiple outlets of a single franchise (the Government) and not as individual entities free to carve their own policy paths.
As they hold press conferences complaining that they don't have enough money for prosecutors and police maybe they should step back and examine where they are wasting taxpayer dollars. Marijuana prosecutions should be front and center.
In Snohomish County District Courts, prosecutors will dismiss a first offense misdemeanor marijuana possession case upon being provided proof the defendant completed an 8 hour Alcohol Drug Information School (ADIS). Same charge, but in Chelan County, and not only will the prosecutor likely not drop it with proof of ADIS, they will recommend jail time for a conviction (even beyond the mandatory minimum 1 day that somehow survives in state law to this day). In the City of Seattle, if you are contacted by a Seattle Police officer about the same offense, you may not even be arrested or referred for charges. If pulled over by a State Trooper, still in the city, you will be headed to state court (not Seattle Muni) and, depending on which way the policy wind is blowing, are likely to at best be put on a year of informal probation until you can get a dismissal.
To a lay person this seems like insanity - because it is. The prosecutors in this state need to get on the same page about the treatment of minor marijuana offenses. The punishment I face should not be dependent on mile markers, city limits, or county boundaries. Prosecutors need to come to see themselves as multiple outlets of a single franchise (the Government) and not as individual entities free to carve their own policy paths.
As they hold press conferences complaining that they don't have enough money for prosecutors and police maybe they should step back and examine where they are wasting taxpayer dollars. Marijuana prosecutions should be front and center.
Sunday, March 14, 2010
Deferred Sentences in Washington
A deferred sentence is a type of sentence where upon completion of the terms (fine, community service, restitution, etc.) and the expiration of a certain time period, the charge is dismissed. The procedural steps are that the guilty plea is withdrawn, a plea of not guilty is entered, and the charge is dismissed. Even after that dismissal, however, the case is still considered "conviction data" under Washington law. Below is a relatively detailed description of the statutory provisions at work. The bottom line is that while the charge is dismissed, the record of conviction still exists in some form or another.
Criminal History: What is It?
"Criminal history record information" means:
[I]nformation contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions,indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release. The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual's record of involvement in the criminal justice system as an alleged or convicted offender, except
(a) Posters, announcements, or lists for
identifying or apprehending fugitives or wanted persons;
(b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis;
(c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings;
(d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days;
(e) Records of any traffic offenses as maintained by the department of licensing for the purpose of regulating the issuance, suspension, revocation, or renewal of drivers' or other operators'
licenses and pursuant to RCW 46.52.130;
(f) Records of any aviation violations or offenses as maintained by the department of transportation for the purpose of regulating pilots or other aviation operators, and pursuant to RCW47.68.330;
(g) Announcements of executive clemency.
RCW 10.97.030(1). Criminal history information thus does not have to
originate from a court of law, and does not have to involve a conviction for
a charged offense.
Any "criminal justice agency" can be the source of data regarding
criminal history. So what is a "criminal justice agency"? WAC 446-20-050
provides:
(1) The following agencies shall be considered criminal justice agencies for the purpose of chapter 10.97 RCW and these regulations.
(a) The Washington state patrol, including the state identification section;
(b) Foreign, federal, state, and local governmental law enforcement agencies;
(c) The adult corrections division of the department of social and health services or the department of corrections as specified in chapter 72.02 RCW, including institutions as specified in chapter 72.01 RCW and probation and parole services as specified in chapter 72.04A RCW;
(d) The board of prison terms and paroles;
(e) Courts at any level, if they exercise criminal jurisdiction, for the administration of criminal justice.
(2) Only that subunit of the following agencies which
detects, prosecutes, or that work under the direction of the courts shall be considered criminal justice agencies for the purpose of chapter 10.97 RCW
and these regulations:
(a) Federal state and local prosecutorial, correctional programs, agencies or departments;
(b) The liquor control board as specified in RCW 66.44.010 (enforcement division);
(c) The department of labor and industries as specified in chapter 7.68A RCW (victims of crime
compensation);
(d) The state fire marshal as specified in RCW 48.48.060(2);
(e) An agency or portion thereof that has been certified as a criminal justice agency pursuant to WAC 446-20-060.
The two statutory provisions cited above provide generally what information is gathered and who gathers it. This leads to the real question at issue in dealing with the issue of privacy: Who can get to the information and what information can they get?
Having A "Conviction Record" Does Not Require a Conviction
By the plain language of the Privacy Act "conviction records can be
disseminated without restriction." RCW 10.97.050(1). In Washington, a
"conviction record" does not always mean the subject was found guilty. RCW
10.97.030(3) provides:
"Conviction record" means criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the subject. (Italics added). RCW 10.97.030(3).
While the nature of a criminal conviction is fairly straightforward - the subject was charged with a crime and found guilty, either by plea of guilty or after a trial to a judge or jury - it is not so
obvious what might be meant by a "disposition adverse to the subject." The definition within the Privacy Act provides some guidance: "Conviction or other disposition adverse to the subject"
means any disposition of charges other than: (a) a decision not to prosecute; (b) a dismissal; or (c) an acquittal; with the following exceptions, which shall be considered dispositions adverse to the subject: An acquittal due to a finding of not guilty by reason of insanity and a dismissal by reason of incompetency, pursuant to 10.77 RCW; and a dismissal entered after a period of probation, suspension, or deferral of sentence. RCW 10.97.030(4).
This definition is critical because it is the central tool used in determining what level of privacy is afforded to the record.1 It is not a crystal clear definition, however, and it is dependent upon
different agencies and individuals for it to function as intended, leaving much room for error.
RCW 43.43.735(1) requires law enforcement to photograph and fingerprint "all adults and juveniles arrested for the commission of any criminal offense constituting a felony or gross misdemeanor." RCW 43.43.745(3) then provides:
The State Patrol promulgates rules for the implementation of this statute. Those rules can be found in WAC 446-16. If everyone follows those rules - i.e. the prosecuting attorney makes a report to the State Patrol when it is determined not to file a criminal charge - then the
"conviction record" definition can function as intended. If however, any criminal justice agency bureaucracy fails in its administrative duty, then a record may be in limbo and end up being treated by the State Patrol asconviction data. This is because the definition in 10.97.030(4) treats all dispositions as "adverse to the subject" unless it meets one of those other standards - acquittal; dismissal, or a decision not to prosecute - listed in the statute. Given the volume of cases handled by the police, courts, and prosecutors, it seems almost a foregone conclusion that mistakes will be made, and what should otherwise be treated as "nonconviction data" is instead available for dissemination. The same problem can arise with other parts of the "conviction record" definition.
RCW 10.97.030(4) specifically provides that "a dismissal entered after a period of probation, suspension, or deferral of sentence" shall be considered a "disposition adverse to the subject" and thus constitutes conviction data.
Criminal History: What is It?
"Criminal history record information" means:
[I]nformation contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions,indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release. The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual's record of involvement in the criminal justice system as an alleged or convicted offender, except
(a) Posters, announcements, or lists for
identifying or apprehending fugitives or wanted persons;
(b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis;
(c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings;
(d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days;
(e) Records of any traffic offenses as maintained by the department of licensing for the purpose of regulating the issuance, suspension, revocation, or renewal of drivers' or other operators'
licenses and pursuant to RCW 46.52.130;
(f) Records of any aviation violations or offenses as maintained by the department of transportation for the purpose of regulating pilots or other aviation operators, and pursuant to RCW47.68.330;
(g) Announcements of executive clemency.
RCW 10.97.030(1). Criminal history information thus does not have to
originate from a court of law, and does not have to involve a conviction for
a charged offense.
Any "criminal justice agency" can be the source of data regarding
criminal history. So what is a "criminal justice agency"? WAC 446-20-050
provides:
(1) The following agencies shall be considered criminal justice agencies for the purpose of chapter 10.97 RCW and these regulations.
(a) The Washington state patrol, including the state identification section;
(b) Foreign, federal, state, and local governmental law enforcement agencies;
(c) The adult corrections division of the department of social and health services or the department of corrections as specified in chapter 72.02 RCW, including institutions as specified in chapter 72.01 RCW and probation and parole services as specified in chapter 72.04A RCW;
(d) The board of prison terms and paroles;
(e) Courts at any level, if they exercise criminal jurisdiction, for the administration of criminal justice.
(2) Only that subunit of the following agencies which
detects, prosecutes, or that work under the direction of the courts shall be considered criminal justice agencies for the purpose of chapter 10.97 RCW
and these regulations:
(a) Federal state and local prosecutorial, correctional programs, agencies or departments;
(b) The liquor control board as specified in RCW 66.44.010 (enforcement division);
(c) The department of labor and industries as specified in chapter 7.68A RCW (victims of crime
compensation);
(d) The state fire marshal as specified in RCW 48.48.060(2);
(e) An agency or portion thereof that has been certified as a criminal justice agency pursuant to WAC 446-20-060.
The two statutory provisions cited above provide generally what information is gathered and who gathers it. This leads to the real question at issue in dealing with the issue of privacy: Who can get to the information and what information can they get?
Having A "Conviction Record" Does Not Require a Conviction
By the plain language of the Privacy Act "conviction records can be
disseminated without restriction." RCW 10.97.050(1). In Washington, a
"conviction record" does not always mean the subject was found guilty. RCW
10.97.030(3) provides:
"Conviction record" means criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the subject. (Italics added). RCW 10.97.030(3).
While the nature of a criminal conviction is fairly straightforward - the subject was charged with a crime and found guilty, either by plea of guilty or after a trial to a judge or jury - it is not so
obvious what might be meant by a "disposition adverse to the subject." The definition within the Privacy Act provides some guidance: "Conviction or other disposition adverse to the subject"
means any disposition of charges other than: (a) a decision not to prosecute; (b) a dismissal; or (c) an acquittal; with the following exceptions, which shall be considered dispositions adverse to the subject: An acquittal due to a finding of not guilty by reason of insanity and a dismissal by reason of incompetency, pursuant to 10.77 RCW; and a dismissal entered after a period of probation, suspension, or deferral of sentence. RCW 10.97.030(4).
This definition is critical because it is the central tool used in determining what level of privacy is afforded to the record.1 It is not a crystal clear definition, however, and it is dependent upon
different agencies and individuals for it to function as intended, leaving much room for error.
RCW 43.43.735(1) requires law enforcement to photograph and fingerprint "all adults and juveniles arrested for the commission of any criminal offense constituting a felony or gross misdemeanor." RCW 43.43.745(3) then provides:
Disposition of the charge for which the arrest was made shall be reported to the [State Patrol Identification] section at whatever stage in the proceedings a final disposition occurs by the arresting law enforcement agency, county prosecutor, city attorney, or court having jurisdiction over the offense. RCW 43.43.745(3).
The State Patrol promulgates rules for the implementation of this statute. Those rules can be found in WAC 446-16. If everyone follows those rules - i.e. the prosecuting attorney makes a report to the State Patrol when it is determined not to file a criminal charge - then the
"conviction record" definition can function as intended. If however, any criminal justice agency bureaucracy fails in its administrative duty, then a record may be in limbo and end up being treated by the State Patrol asconviction data. This is because the definition in 10.97.030(4) treats all dispositions as "adverse to the subject" unless it meets one of those other standards - acquittal; dismissal, or a decision not to prosecute - listed in the statute. Given the volume of cases handled by the police, courts, and prosecutors, it seems almost a foregone conclusion that mistakes will be made, and what should otherwise be treated as "nonconviction data" is instead available for dissemination. The same problem can arise with other parts of the "conviction record" definition.
RCW 10.97.030(4) specifically provides that "a dismissal entered after a period of probation, suspension, or deferral of sentence" shall be considered a "disposition adverse to the subject" and thus constitutes conviction data.
Wednesday, February 17, 2010
Strangers in a Strange Land
A wise paralegal I worked with always reminded me how frightening it is for someone to be facing a criminal charge or accusation. She spent a lot of time talking with our clients, and they opened up to her in ways they didn't with the attorneys. Why? Because she was listening, and trying to see the whole process through their eyes.
An accused faces a criminal justice system they usually don't know or understand, full of actors who all know each other and know essentially how things "proceed." The accused is told where to be and when to be there, and who he/she can and cannot communicate with, and how far he/she can travel without asking the Court's permission. All while being told by judges, prosecutors, and the defense attorney about the possible incarceration that can flow from a conviction.
It's like having surgery performed on your life - except there is no anesthetic and you are wide awake.
I'm not sure an attorney can get all the way in the shoes of the client, the accused. But it is important to try and get close. To take the time to listen, and to give simple, straightforward answers. In the end it makes the attorney's job easier and allows the client and their family members to understand what is happening. You can't eliminate all the fear or uncertainty, but it helps a great deal to eliminate what you can.
My old paralegal preached and practiced that every day (and no doubt still does) and it made all the difference in the world.
An accused faces a criminal justice system they usually don't know or understand, full of actors who all know each other and know essentially how things "proceed." The accused is told where to be and when to be there, and who he/she can and cannot communicate with, and how far he/she can travel without asking the Court's permission. All while being told by judges, prosecutors, and the defense attorney about the possible incarceration that can flow from a conviction.
It's like having surgery performed on your life - except there is no anesthetic and you are wide awake.
I'm not sure an attorney can get all the way in the shoes of the client, the accused. But it is important to try and get close. To take the time to listen, and to give simple, straightforward answers. In the end it makes the attorney's job easier and allows the client and their family members to understand what is happening. You can't eliminate all the fear or uncertainty, but it helps a great deal to eliminate what you can.
My old paralegal preached and practiced that every day (and no doubt still does) and it made all the difference in the world.
Expungement - Legal Unicorn or Justice Found?
"Expungement" is the term most commonly associated with "cleaning up" a criminal history. However, in the State of Washington that term does not appear in any statute. Here, the term is "Deletion" and all of the rules about when you can get it are found in RCW 10.97 http://apps.leg.wa.gov/RCW/default.aspx?Cite=10
The very short answer is that the only way you can be eligible to have criminal history information "deleted" is if you are never convicted of a crime. The arrest records can be "deleted", but only if the case does not end in conviction. But many times short answers don't provide all of the answers. What about the court record? Is a court a "criminal justice agency" within the meaning of the statute? Is a court record "criminal history record information"? Therein lies the problem - the problem that leaves the Deletion statute sometimes looking more like a legal unicorn, and less like a means to deliver justice to the wrongly accused.
So let's say you are charged with a crime. You did not commit this crime. You are found not guilty by a jury, or the prosecutor dismisses the case because a lack of evidence - or an abundance of evidence that shows you did not commit a crime. Yes, you can destroy the arrest records but the court record? I believe the answer is "no." And the answer lies in the definition of "criminal history record information" found in the deletion statutory scheme at 10.97.040:
(1) "Criminal history record information" means information contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release.
The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual's record of involvement in the criminal justice system as an alleged or convicted offender, except:
(a) Posters, announcements, or lists for identifying or apprehending fugitives or wanted persons;
(b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis;
(c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings;
(d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days;
(e) Records of any traffic offenses as maintained by the department of licensing for the purpose of regulating the issuance, suspension, revocation, or renewal of drivers' or other operators' licenses and pursuant to RCW 46.52.130;
(f) Records of any aviation violations or offenses as maintained by the department of transportation for the purpose of regulating pilots or other aviation operators, and pursuant to RCW 47.68.330;
(g) Announcements of executive clemency.
The only thing you can "delete" from your record is "criminal history record information." RCW 10.97.060. So, even though the case is dismissed, the court record remains.
But can we find a glimmer of hope in the catch-all proivision at the end of RCW 10.97.060???
The very short answer is that the only way you can be eligible to have criminal history information "deleted" is if you are never convicted of a crime. The arrest records can be "deleted", but only if the case does not end in conviction. But many times short answers don't provide all of the answers. What about the court record? Is a court a "criminal justice agency" within the meaning of the statute? Is a court record "criminal history record information"? Therein lies the problem - the problem that leaves the Deletion statute sometimes looking more like a legal unicorn, and less like a means to deliver justice to the wrongly accused.
So let's say you are charged with a crime. You did not commit this crime. You are found not guilty by a jury, or the prosecutor dismisses the case because a lack of evidence - or an abundance of evidence that shows you did not commit a crime. Yes, you can destroy the arrest records but the court record? I believe the answer is "no." And the answer lies in the definition of "criminal history record information" found in the deletion statutory scheme at 10.97.040:
(1) "Criminal history record information" means information contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release.
The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual's record of involvement in the criminal justice system as an alleged or convicted offender, except:
(a) Posters, announcements, or lists for identifying or apprehending fugitives or wanted persons;
(b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis;
(c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings;
(d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days;
(e) Records of any traffic offenses as maintained by the department of licensing for the purpose of regulating the issuance, suspension, revocation, or renewal of drivers' or other operators' licenses and pursuant to RCW 46.52.130;
(f) Records of any aviation violations or offenses as maintained by the department of transportation for the purpose of regulating pilots or other aviation operators, and pursuant to RCW 47.68.330;
(g) Announcements of executive clemency.
The only thing you can "delete" from your record is "criminal history record information." RCW 10.97.060. So, even though the case is dismissed, the court record remains.
But can we find a glimmer of hope in the catch-all proivision at the end of RCW 10.97.060???
Friday, February 12, 2010
Perjury Indictment against cops in Miami
Do police officers ever lie during testimony? Federal prosecutors in Miami appear to think so www.miamiherald.com/news/miami-dade/story/1475862.html.
In this Miami case, an old law school friend from Northeastern, D'Arsey Houlihan and his investigator proved during a pretrial suppression hearing that the police officers were not testifying truthfully. His motion to suppress was granted and the charges dismissed. That is usually the end of the story and, frankly, prosecutors, judges, and some defense attorneys would yawn at the news that some officers lied during a suppression hearing. But in this instance federal prosecutors, pretty much the victims of the alleged crime (it was their case that got tossed after all) are doing the right thing...but also the thing that lets them send a message to local cops who testify in federal court: if you lie under oath that is perjury.
Federal prosecutors love perjury charges - just ask Barry Bonds. There is even something called a "perjury trap" that is a legal concept which grew out of the practice of federal criminal prosecutors calling witnesses to testify at grand jury proceedings with the aim of getting them to lie (the aforementioned Mr. Bonds is still stuck in the one that was laid for him).
Time will tell if the prosecutors follow through and get convictions or, as seems to happen more often with police officers charged with crimes, the charges don't stick.
In this Miami case, an old law school friend from Northeastern, D'Arsey Houlihan and his investigator proved during a pretrial suppression hearing that the police officers were not testifying truthfully. His motion to suppress was granted and the charges dismissed. That is usually the end of the story and, frankly, prosecutors, judges, and some defense attorneys would yawn at the news that some officers lied during a suppression hearing. But in this instance federal prosecutors, pretty much the victims of the alleged crime (it was their case that got tossed after all) are doing the right thing...but also the thing that lets them send a message to local cops who testify in federal court: if you lie under oath that is perjury.
Federal prosecutors love perjury charges - just ask Barry Bonds. There is even something called a "perjury trap" that is a legal concept which grew out of the practice of federal criminal prosecutors calling witnesses to testify at grand jury proceedings with the aim of getting them to lie (the aforementioned Mr. Bonds is still stuck in the one that was laid for him).
Time will tell if the prosecutors follow through and get convictions or, as seems to happen more often with police officers charged with crimes, the charges don't stick.
Wednesday, February 10, 2010
Without a Net
Being a criminal defendant, defense attorney, police officer, prosecutor or even judge, ain't the easiest way to live. Each has its own stresses, moral challenges, and, occasionally, heroic triumphs. This blog is for self-promotion, that kind of goes without saying. But my hope is it can become a place where clients, potential clients, colleagues, and opponents can take a deep breath, maybe have a chuckle, and then get back on the path to whatever it was they came looking for in the first place.
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