Monthly Archives: April 2015

How to bench the judge-the affidavit of prejudice court rule

A good attorney will know all the judges in a particular jurisdiction and what judges are good for each particular kind of case and issue. But how can an attorney get a particular case set in front of the ideal judge? In Washington State, we have an affidavit of prejudice statute, RCW 4.12.050, Superior Court Criminal Rule 8.9, and CrRLJ 8.9 (for District Court). If a criminal case was a game of cards, the affidavit of prejudice rule is a playing card that says if an attorney or defendant thinks that a particular judge cannot be fair and impartial, they can play a card against that judge and a replacement judge must be brought in. But you can only play this card once. Also, there are limits as to  when you can play this card. So while you cannot pick the best judge for your particular case, you can get rid of the worst judge.

While defense attorneys regularly utilize the affidavit of prejudice rule, it is somewhat rare for a prosecutor’s office to use the rule to disqualify a judge. When a defense attorney uses the rule to get rid of a judge, it is not a big deal because that defense attorney probably only represents a handful of clients in that court. The judge can still hear criminal cases involving all the other defense attorneys in the court. But when the prosecutor decides they do not like a judge, that judge can no longer handle criminal cases in that jurisdiction. Increasingly, prosecutors are using this rule to get rid of judges that they believe are making incorrect legal decisions. Rather than appeal the issue they believe is incorrect, the prosecutor has the ability to permanently remove that judge from the criminal calendar by filing a blanket affidavit of prejudice against the judge on all the cases the prosecutor files. It is essentially an f-you from the prosecutor to the judge. Keep in mind the judges are elected by the people in their jurisdiction. So the prosecutor is essentially removing a judge that the people have chosen.

For instance, the King County Prosecuting Attorney’s Office was upset about how Judg Eileen Kato was interpreting a court rule that determines a defendant’s right to speedy trial. The solution-file a blanket affidavit of prejudice against Judge Kato. The prosecutor’s idea worked, and Judge Kato was removed from the criminal calendar in the Seattle court and told she needs to handle infractions (speeding tickets) in Issaquah and Shoreline.

The City of Bellevue Prosecuting Attorney has done the same thing against Judge David Steiner.  The Bellevue Police arrogantly refuse to use the implied consent warning form that is drafted by the Washington State Patrol, and is used on DUI cases by essentially every law enforcement agency in the State of Washington. Instead, the Bellevue Police use their own form, which conveniently neglects to inform driver’s of the consequences of having marijuana in their system while driving. Judge Steiner ruled the Bellevue Police should use the same form that the Washington State Patrol, and every other law enforcement agency uses. Upset by Judge Steiner’s ruling, the City of Bellevue has chosen to file a blanket affidavit of prejudice against Judge Steiner, which means Judge Steiner can no longer hear cases in City of Bellevue. While legal, some would argue that what King County and City of Bellevue prosecutors offices are doing is unethical. What do you think?

New juvenile records sealing law heading to the governor for signature

Senate Bill 5564 has been signed by both the senate and house and is heading to Governor Inslee for signature (who is expected to sign the law). The law will make it easier for juveniles to seal their criminal records and dispose of debts that they cannot pay.

Under the new law, after disposition (i.e. sentencing) on a juvenile offense, the court will set the case for an administrative sealing hearing after the individual’s eighteenth birthday (or later) to make sure the case is sealed if all the requirements are met. If a case that could be sealed somehow falls through the cracks, the individual can also file a motion to seal the record, and get a hearing that way. At the hearing, the court shall seal the record so long as the offense is not a most serious offense, a sex offense under chapter 9A.44 RCW, or a felony drug offense, and some other conditions are met. If the offense is one of those more serious offense, it may still be sealed, but there are other applicable rules.

Before sealing the record, the individual will have to pay off all of the restitution to the victim of the case, unless the victim is an insurance company. However, if the victim is ok with it, the court can covert the restitution amount to community service. The new law also allows the juvenile to reduce or eliminate the interest they previously had to pay on their case.

The new law is attempting to make it easier for juveniles convicted of crimes to assimilate back into the community and be productive members of society.

Should police officers purchase their own body cameras?

police-body-camRecently, there has been a lot of news about police body cameras. Police cameras, whether they are affixed to the patrol vehicle, or on the officer’s body, are great because they offer an objective view of contentious encounters with the public. Many police misconduct cases can only be proved by video evidence. However, because of strong public records laws in Washington State, it is not as simple as purchasing and installing the new technology. Governments must also take steps to properly preserve the digital recordings and provide these recordings to the public, upon request. As you can imagine, categorizing and preserving massive amounts of digital recordings is no easy task.

According to this article, some officers outside of Washington State are frustrated by government regulations and budgets preventing the issuance of the body cameras. Instead, these officers have gone out and purchased their own body cameras to record their interactions with the public. I am not surprised by this. Many officers are happy to have their contact with the public recorded to ensure they are not falsely accused of misconduct. Unfortunately, police in Washington State would likely violate the Public Records Act if they simply installed their own personal equipment. The Public Records Act would require the officers to store all recordings, and timely provide these recordings to the public upon request. Failure to do so would trigger penalties that can be quite costly for the government. Bottom line, body cameras are coming to Washington State. But the cameras have to be implemented by the government, itself, in order to ensure compliance with the Public Records Act.

More on the Pierce County Prosecuting Attorney’s knack for having to try defendants twice

Last week, I wrote about why it took two trials for the Pierce County Prosecuting Attorney to convict one of the ‘Craigslist killers.’ Yesterday, the Tacoma News Tribune had an article on how the Pierce County Prosecuting Attorney’s Office was responsible for six of the fourteen cases that were overturned for prosecutor misconduct in Washington State since 2013. The article is a great read and has some choice comments from the elected Pierce County Prosecutor Mark Lindquist, as well comments from one of the defense attorneys representing the defendants in the cases. The article also has numerous quotes taken from the Supreme Court’s decisions that reversed the convictions, forcing a trial for the second time. The article discusses how having to try the cases twice drives up the costs for the taxpayers, as well as putting the victims’ families through two jury trials. If you want to read the actual decisions discussed in the article, I have linked them below.

State v. Walker (overturned convictions of aggravated first-degree murder in the death of armored-car guard Kurt Husted. The court ruled it was improper for the prosecutor to use a power point slide in closing argument of the defendant’s family with the writing, “This is how you murder and rob [(N-words)]. Next time it will be more money.” The sentence was a quote from the defendant that the prosecutor contended was a confession).

In Re Glasmann (overturned convictions for assault, attempted robbery, kidnapping and obstructing a law enforcement officer for a power point slide of the defendant’s booking photo with “guilty, guilty, guilty” superimposed on it in red letters).

State v. Allen (overturned the conviction for the alleged get away driver for cop killer Maurice Clemmons).