Monthly Archives: April 2016

Will the prosecutor retry state Auditor Troy Kelley?

News broke a few days ago that a federal jury in Tacoma had found state Auditor Troy Kelley not guilty of lying to IRS, and had  deadlocked on the other fourteen remaining charges. The question now becomes will the prosecutor (the US Attorney’s Office) decide to make Kelley go through another trial on the fourteen charges that the jurors could not agree on.

You may be wondering why a prosecutor has this option. Kelley was found not guilty on one count, and double jeopardy prevents retrial on this count. But since the jury could not decide on the other fourteen counts, double jeopardy does not prevent the prosecutor from retrying Kelley on these counts.

The legal basis for all of this stems from the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, which states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”  It protects against being (1) prosecuted a second time for the same offense after acquittal, (2) prosecuted a second time for the same offense after conviction, and (3) punished multiple times for the same offense. Article 1, §  9 of the Washington State Constitution has a similar Double Jeopardy Clause, which provides that no person shall “be twice put in jeopardy for the same offense.”

So while it appears the prosecutor may have the option of retrying Kelley, that does not necessarily mean they will exercise this power. Typically, the prosecutor will re-analyze their case to determine if they believe they can still get a conviction on any of the remaining fourteen counts. Occasionally, at the conclusion of the trial, the judge will poll the jurors, which means find out how many were in favor of guilty versus how many were in favor of not guilty (the jury must be unanimous to return a verdict of guilty or not guilty). This could play a factor in the prosecutor’s decision to retry, but ultimately, the prosecutor can retry the charges even if eleven jurors voted not guilty and there was only one hold-out juror who was adamant Kelley was guilty.

Will Port of Seattle CEO be able to travel to Canada?

Last week, news broke that the Port of Seattle CEO was arrested for suspicion of DUI. In addition to facing a minimum of one day in jail and an ignition interlock on his vehicle for one year, if the CEO is convicted of DUI, he will also likely be prevented from traveling to Canada, either for business or for personal reasons, for a ten year period. This is based on Canadian, not Washington State law. I have written more about entering Canada with a DUI conviction on my web cite. It seems it would be difficult to be a CEO of a major port only a few hours from the Canadian boarder without having the ability to travel to Canada for business meetings. If the CEO can avoid a DUI (with a lesser charge such as Reckless Driving or Negligent Driving in the First Degree), his chances of being able to travel to Canada improve, but even convictions for those lesser offenses can often provide a basis for the Canadian boarder guard to deny entry.

Washington Supreme Court rules level I sex offender information subject to public disclosure

In the recent decision, John Doe A v. Washington State Patrol, the Washington Supreme Court ruled that information relating to Level I sex offenders was subject to public disclosure under the state’s Public Records Act. Level I is the lowest classification for sex offenders.  RCW 4.24.550 attempts to dictate what information on sex offenders law enforcement should disclose and who to. RCW 4.24.550 is not under the Public Records Act, and is instead under chapter 4 of the RCWs, which covers general civil procedure statutes. Accordingly, it is an “other statute” under the Public Records Act. Any time an “other statute” attempts to exempt information under the Public Records Act, the courts must decide whether this “other statute” trumps the Public Records Act’s mandate for broad disclosure of public records.

The specific statute at issue was RCW 4.24.550(3)(a), which applies to level I sex offenders, and states, “the agency shall share information with other appropriate law enforcement agencies and, if the offender is a student, the public or private school regulated under Title 28A RCW or chapter 72.40 RCW which the offender is attending, or planning to attend. The agency may disclose, upon request, relevant, necessary, and accurate information to any victim or witness to the offense, any individual community member who lives near the residence where the offender resides, expects to reside, or is regularly found, and any individual who requests information regarding a specific offender.”

Donna Zink made a public records request for information on Level I sex offenders (and other sex offenders). The Washington State Patrol was in favor of releasing these records, but before releasing the records, notified the sex offenders of their right to get an injunction under RCW 42.56.540 (the law in the Public Records Act that allows injunctions). The Level I sex offenders filed a law suit against the Washington State Patrol to get the injunction.

Ultimately, the court ruled that RCW 4.24.550(3)(a) did not expressly exempt this information from public disclosure. And without an express exemption, the information must be disclosed under the Public Records Act. So Ms. Zink won, and the Level I sex offenders lost. Ms. Zink also asked for attorney fees claiming the WSP delayed the records to her by notifying the Level I sex offenders. The court rejected this argument because Ms. Zink prevailed against the Level I sex offenders, not the WSP. And the WSP was within their right to notify the Level I sex offenders about the release of their records.

How the legislature reacts to this decision will be interesting. By passing RCW 4.24.550(3)(a), the legislature clearly intended to limit the release of information of Level I sex offenders to the public. But by failing to clearly exempt this information, RCW 4.24.550(3)(a) failed in its intended goal. Will the legislature amend this statute to clearly exempt this information? If they do, it may be too late for the Level I sex offenders because once the information is released, and posted on the internet, then there is nothing the legislature can do to get that information off of the internet.