Monthly Archives: June 2015

State v. E.J.J.; Supreme Court Justice Gonzalez criticizes the King County Prosecutor’s Charging decision

In State v. E.J.J., the Washington Supreme Court decision that came out today, the justices ruled that citizens cannot be arrested for obstruction for criticizing how the police are handling a situation, even if the citizen criticism includes foul language. Former King County Superior Court Judge, and current Supreme Court Justice Steven González, summarizes the facts of the case as follows:

“In the case, the juvenile E.J.J.’s mother called the police to assist her family in crisis. E.J.J’s younger sister was intoxicated and breaking windows. The police responded and intervened. E.J.J., who was 17 years old at the time, saw one officer raise his nightstick as the police tried to subdue his sister. E.J.J. was concerned for his sister’s welfare and let the police know he was watching. E.J.J. and one officer called each other names. An officer ordered E.J.J. to retreat to his house. At first E.J.J. refused, but ultimately he acceded. Once inside, E.J.J. asserted his right to watch the police from inside his own home. He refused an unlawful order to close his own door. He refused to turn away. For this, he was arrested, charged, and convicted”

Justice González then asked rhetorically, “[i]f this is typical of the cases for which King County wants to build a new youth jail, perhaps the community opposition is understandable.” After the court’s decision, even the Seattle Police have stated that they support the dismissal of the case. So question remains, if the Washington Supreme Court and the Seattle Police believe that EJJ should never have been convicted of a crime, then why did the King County Prosecutor decide to pursue this case all the way to the Supreme Court level?

 

Pierce County Deputy Prosecutor Steven Merrival files whistleblower complaint against Pierce County Prosecutor Mark Lindquist

Back on May 12, 2015, Pierce County Deputy Prosecutor Steven Merrival, who has been employed as a deputy prosecutor since 1982, filed a whistleblower complaint against his boss, Pierce County Prosecutor Mark Lindquist. The Tacoma News Tribune had an article on the complaint. I have not seen the actual complaint published on the internet so I decided to obtain a copy myself. You can view the actual complaint here (the redactions were done by the Pierce County Department of Human Resources).

Prosecutor Lindquist has had a string of complaints filed against him recently. A bar complaint was also filed by Deputy Prosecutor Merrival against Lindquist. I posted the anonymous complaint filed by one of Lindquist’s employees here. And even the Washington Coalition for open Government has gotten into the mix.

More on Background Check Mess

The Seattle Times had an article today that demonstrated just how out of touch with reality our State Auditor’s office is.  The article was detailing the auditor’s report, which found that not all convictions in Washington State make it into the Washington State Identification System (WASIS) database, which is maintained by the Washington State Patrol. The auditor’s report pointed out that if a person is arrested, and convicted, but never finger printed, that offense may not make it in to the WASIS database. The auditor made it sound like this was a major problem. For instance, the audit claims, “[i]f information in the state’s criminal history records database is incomplete, law enforcement may come to the wrong conclusions during investigations, a judge may inappropriately order a lesser sentence, or an employer may wrongly offer or deny someone employment.”

That may be true if anyone on earth was still dumb enough to rely exclusively on WASIS for their criminal background check needs. But rest assured, no prosecutor, judge, law enforcement officer, or private background check company is relying exclusively on WASIS these days. Instead, they pull their data from several sources, with WASIS being just one of the sources. The most complete database is the Judicial Information System (JIS), which is maintained by the Administrative Office of the Courts.

The good and bad thing about JIS is that once something goes into JIS, it never comes out. So while WASIS requires the person to be finger printed to enter the database (to insure that the identity of the individual is correct), JIS does not. Moreover, there are laws that require entries in WASIS to be deleted if the charge is eventually dismissed by the prosecutor or court. So, if a person is arrested and charged with a crime, but is able to prove their innocence and get the charge dismissed, that offense will be removed from WASIS. But that same dismissed offense will still be in JIS and will be for the rest of their life. So every time the person applies for a job or housing, the dismissed offense will still appear on the background check.

The JIS database is available to the public (there is a fee if you want to run it from your computer at home, but free at any King County District Court clerk’s office). Or, a lot of the information found in JIS is also available for free here.

While I agree with the auditor that it is probably a good idea to make sure WASIS offers a complete depiction of a person’s criminal history in Washington, it is completely false to suggest that WASIS’s lack of completeness could cause a judge to inappropriately order a lesser sentence, or cause an employer to wrongly offer someone employment.

Never Trust a Confidential Informant

The Seattle Times recently wrote about Kathleen’s Mancini, a Federal Way woman who was dragged out of her apartment when a Tacoma police SWAT team bashed in the wrong door during a drug raid. Mancini sued the police, but had her case dismissed by Judge James Cayce in King County Superior Court. Mancini appealed the dismissal and recently, the Washington Court of Appeals, Division I, reversed the dismissal and remanded the case back to King County Superior Court for trial. You can read the decision here.

The decision hinged on the court’s interpretation of Washington’s public duty doctrine. The court held that under the public duty doctrine, if a private person would be liable in tort to the particular claimant, so too would be a governmental actor. In other words, if the police were negligent, they could be held liable for their actions just like a private citizen could also be held liable for their negligence. The public duty doctrine does not offer immunity for the police’s negligence.

The decision also offers a good summary on the police’s use of confidential informants (CI). In the case, the police relied on a CI identifying Mancini’s appartment as the suspected drug traffickers, when in fact it was a different appartment in the complex. The The CI in the case was also involved in drug trafficking herself. To prove the police were negligent, Mancini submitted a declaration from Dr. Norm Stamper, a former Chief of the Seattle Police Department. In the declaration, former Chief Stamper advised to never trust a confidential informant. The Tacoma police did here, and the question remains will they have to pay for that reliance.