About Face: Goodwill’s Veterans Re-entry Program

11 Nov

This sounds like a great program:  http://www.spokesman.com/stories/2010/nov/10/catalyst-for-a-better-life/

Our veterans deserve these social services after making sacrifices and serving our country!

Happy Veteran’s Day everyone!!!

 

Arizona’s Controversial Immigration Law

7 Nov

Last Monday, the Ninth Circuit heard oral arguments in USA v. Arizona.  http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000470

Oral arguments were broadcasted live across the country both on C-SPAN and on video streamed to remote viewing locations.  I did not have the opportunity to view the oral arguments, but I have had a chance to read a few of the briefs filed in this action.

This case could have huge implications on constitutional law with many issues including criminal law issues and federal preemption law.

Procedurally, this case is before the Ninth Circuit after an Arizona District Court granted a preliminary injunction, which blocked enforcement of a portion of Arizona Bill 1070.

I have tried to explain to individuals who support this portion of the AZ law why it cannot possibly be enforced without violating constitutional rights of individuals living in and traveling through Arizona.

I understand Arizona’s frustration with the influx of people from Mexico who end up living in Arizona illegally.  However, this law is not the solution. Besides the fact that immigration law is preempted by federal statute, the reality of enforcing this law is that innocent US citizens will have their right to privacy violated and will be unlawfully arrested.  And, the danger of racial profiling is phenomenal.

My goal is to get through a few more of the amicus briefs this week. Fascinating to see all the different groups who have an interest in this case.

WA’s “post Gant” Cases – Search of Vehicle Incident to Arrest

26 Oct

Division I published an opinion yesterday that is the latest in a series of Court of Appeals and WA Supreme Court opinions following Arizona v. Gant , 129 S. Ct. 1710 (2009).  This caught my attention because we discussed these WA “post Gant” opinions last Friday at a criminal defense CLE in Spokane.

The WA Supreme Court addressed WA’s search of a vehicle incident to arrest (SIA) warrant exception last year in State v. Valdez . The Court had not addressed the scope of the SIA exception for 23 years — since it’s decision in State v. Stroud, 106 Wn.2d 144 (1986) (case that set a bright line rule allowing officers to search a vehicle incident to arrest in the passenger compartment area, even if the passengers are secured, handcuffed, and away from the vehicle).

In Valdez, the Court narrowed the scope of the exception to fit the criteria set forth in Gant and to return the scope of the exception to fit its original underlying justifications.  The Court in Valdez relied on the U.S. Supreme Court’s decision in Gant but also relied on the justifications for the doctrine that were outlined in State v. Ringer, 100 Wn.2d 686 (1983), recognizing the greater protections under article I, section 7 of the WA Constitution (rather than the Fourth Amendment protections).

These justifications for the SIA doctrine were twofold:  officer safety and preservation of evidence of the crime.  The Court finds in Valdez that the search incident to arrest exception was “stretched beyond these underlying justifications” in the years following Ringer.  Valdez narrows WA’s SIA rule for vehicles, holding that “[a] warrantless search of an automobile is permissible under the search incident to arrest exception when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest.”

After Valdez, the appellate courts have seen several Gant/Valdez type cases and have had apply the new, narrower SIA doctrine.

The latest post Gant case, State v. Roberts, out of Division I, was decided on the fact that the record was insufficient to determine whether the officer searched the vehicle for the purpose of finding evidence or for the purpose of an inventory.  Not much help in this opinion as to where Division I stands on interpreting Valdez.

However, a more interesting interpretation of Valdez comes out of a recent Division II case:  State v. Chesley.  (October 5, 2010).  Chesley interprets the Valdez rule to allow a SIA of a vehicle only if one of the two justifications was present:  officer safety at risk or risk that evidence in car could be destroyed.  Here, Division II found that because Chesley and his co-defendants were all in custody, handcuffed, and far away from the suspect vehicle, the officers had no risk of injury and there was no risk Chesley would destroy evidence in the car.  The officers should have instead sought a search warrant for the vehicle. I am very curious to see if this will be upheld by the Supreme Court.  We shall see…

So, what will officers do now that they can’t search cars willy nilly following an arrest?  With a very narrow SIA exception, officers will now be looking to other exceptions to the warrant requirement to justify a search of a vehicle.  The most common that I have seen is the “consent” exception, where an officer arrests the driver, and while the driver is in handcuffs,  asks for permission to search the car.  Of course this has its own problems (consent must be voluntary, and can the consent really be voluntary when the driver is in handcuffs and under arrest?).  And we should see many challenges to these alternative search warrant exceptions in the future.

Yoga for Inmates

18 Oct

Great story about a volunteer teaching yoga to inmates at Airway Heights Corrections Center:

http://www.spokesman.com/stories/2010/oct/17/strong-foundation/

 

 

ACLU Study – Unpaid Legal Financial Obligations = Jail

13 Oct

I saw this story a few weeks ago in the Seattle Times but I did not read the ACLU’s full report until today.

The ACLU report “In for a Penny: The Rise of America’s New Debtors’ Prisons” focuses on 5 states including Washington.

As a public defense attorney in Bellevue/King County District Court, I never witnessed a  judge send my client to jail solely for unpaid financial obligations.  And often the judge would allow community service to be performed in lieu of these LFOs if the client could not feasibly make payments.  Unfortunately, this is not the case in other Washington courts.

Read the Washington section of the report – you will be horrified by the crippling financial burden put on these individuals who are expected to reintegrate and become  productive members of society.

Inside the Criminal Brain – Part II

9 Oct

Wednesday I shared the NPR series “Inside the Criminal Brain.” This series raised several questions about criminal responsibility and culpability and whether we should punish “psychopaths” differently because their brains are abnormal.

Free will: the foundation of criminal responsibility and culpability in our criminal justice system.  If an offender is capable of making the choice to commit a crime, and (s)he knows what (s)he is doing is wrong, that offender is criminally responsible for her/his actions. Culpability in criminal law describes the degree of responsibility (premeditated, intentional, knowing, reckless, negligent).

The questions raised by the NPR series are numerous, but I found that the most compelling questions were those raised by the neuroscience studies in criminal law (the second story):

If a psychopath’s brain is physically different than a “normal” brain, and, according to neuroscientist Kiehl, this causes the psychopath to have no impulse control (even though he knows that rape is wrong, he could not control the urge to rape the child), is the psychopath criminally responsible?

There are arguments against this application of neuroscience to culpability in criminal cases.  I found this fabulous article that describes some of the counter argument’s to Kent Kiehl’s belief that psychopaths are less culpable due to their brain abnormalities:  http://www.miller-mccune.com/legal-affairs/a-mind-of-crime-8440/

Stephen Morse, a law and psychiatry professor at the University of Pennsylvania Law School is interviewed in “A Mind of Crime” and has challenged the ideas of Kiehl and his neuroscience colleagues.    He asks whether Mr. Kiehl and his colleagues can describe why the abnormalities they see in the “psychopath” brains mean that the “psychopath” can’t form the intent to act on his impulse.  Specifically, Morse says:

“‘Translate this neuro-evidence into the legal criteria…Show me precisely how that works. What’s the mechanism? After all, frontal lobe dysfunctions don’t do things: People do things. How does this frontal lobe dysfunction convert into ‘He didn’t know right from wrong,’ or ‘He couldn’t form the intent to act?’”

I have to agree with Morse.   I have been struggling after listening to this NPR story with my opinion about these studies (I tend to be very pro-defendant and so I usually side with the studies that show that the defendant is less culpable) – do I think that a “psychopath” is less culpable because of physical abnormalities in the brain (similarly to a defendant who is legally mentally disabled)?  When answering this question, I keep going back to Morse’s question – how do the abnormalities in the brain translate to the psychopath being “less culpable” than a “normal” individual (I mean, wouldn’t a normal person not act on those impulses, or even, more likely, never have those impulses?  So why should we punish the psychopath differently than a “normal” defendant?).

The offender in both the NPR story and the story linked above–Brian Dugan–admits that he knew right from wrong: he knew rape was wrong.  And yet he still made that choice to rape so he is criminally responsible.  So isn’t he still criminally responsible and culpable for his actions?

These are fascinating issues, and I cannot form a clear opinion about neuroscience in this context in criminal law.  I feel as if I go in circles, arguing with myself, when I try to form an opinion about Kent Kiehl’s studies.

Even though I may never come to a conclusion, I can assure you that I will follow up on these issues in future posts….

NPR Series – Inside the Criminal Brain

6 Oct

Wanted to share with you an NPR series that aired earlier this Summer titled “Inside the Criminal Brain”:

http://www.npr.org/templates/story/story.php?storyId=128248068

FASCINATING!  Make sure you listen to the stories – and if you want to know more about the scientist in the second story, Kent Kiehl, here is a great article in the New Yorker about his work studying the brains of psychopaths:  http://www.unm.edu/~psych/articles/kiehl_new_yorker_full.pdf

Questions of morality, culpability and criminal punishment arise from these stories.  Is a psychopath less culpable than an individual with a “normal” brain because he is born that way?  And if so, should his punishment be less than that of a person with a “normal” brain even though a psychopath knows right from wrong?  More thoughts later this week….