Publications

A Deal is a Deal, Unless You are in a State Court

Recently, the Ninth Circuit upheld the dismissal of all charges pursuant to a plea agreement after the defendant moved to dismiss the charge to which he had pleaded guilty. As part of the plea agreement, the Government dismissed a general conspiracy charge con- tained within the indictment . See United States v. Transfiguracion, No. 04-10457 (Ninth Cir. April 5, 2006).

By Wayne Fricke, May 2006

A Red Herring - Or Worse

The United States Supreme Court recently decided another case in what appears to be an evolving attack on the exclusionary rule under the Fourth Amendment to the United States Constitution. In Herring v. United States, 129 Supreme Court 695, 172 Legal Ed 2nd 496 (2009) the court affirmed, in a 5-4 decision, an 11th Circuit decision upholding a district court’s failure to suppress evidence under the exclusionary rule.

By Wayne Fricke, February 2011

A Request Unheeded

Recently, we were successful in having a first degree arson case dismissed for failure to prosecute after a five-year delay. Our client was arrested at the scene of a fire that destroyed a hotel under construction, resulting in over a million dollars of damage. Several witnesses identified our client at the scene and heard him exclaiming, “Burn, baby, burn".

By Wayne Fricke, January 2005

Aggravatingly Ineffective: Supremes Say Counsel Must Investigate and Mitigate

In the June 20, 2005, decision of the US Supreme Court, Justice Souter penned law holding defense counsel is ineffective when it fails to investigate a defendant’s prior convic- tion files, medical and mental health records, and family information.

By Lance M. Hester, July 2005

Alford Stops Estoppel

Wayne Baines was initially charged in Pierce County with one count of first degree rape with a firearm enhancement based on allegations that he had raped an allegedly blind woman who was under his care.

By Wayne Fricke, July 2004

Always Check the Statute

A competent lawyer might think that, because it’s almost 2012, he or she can rely on the constitutionality of Washington statutes and municipal codes – especially ones that have been around for a long time.

By Casey Arbenz, January 2011

An Arrow for the Quiver

If a foreign national from almost any country is arrested and/or charged with a crime by State or Federal authorities, one or both of two treaties may come into play. One is the Vienna Convention on Consular Relations (VCCR) and the other is the Mutual Legal Assistance Treaty.

By Monte Hester, December 2007

Andress Retroactive Application

As many of you recall, the Washington State Supreme Court, in In Re Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), held that assault could not be a predicate felony for second de- gree felony murder.

By Brett Purtzer, January 2005

Attorney - Client Privilege vs. Ineffective Assistance of Counsel

Whenever a client loses in trial, and an appeal is filed, one of the issues frequently raised is ineffective assistance of counsel.

By Brett Purtzer, March 2004

“Taylored” Testimony, Tailored Closing

A very recent case out of Division I holds that the following narrative during closing argument did not violate a defendant’s right to be present at trial: “(the defendant) had the opportunity to read this discovery for 18 months, that he had the op- portunity to hear what every witness said, and that he had the opportunity to tailor his story to fit the evidence after he heard it all.”

By Lance M. Hester, March 2002

Bad Prosecutor - Give it Up and Shut Up

In State v. McDonald, 29117-7-II (August 10, 2004) Division II of the Court of Appeals once again reversed a conviction because the state failed to provide to the defense discovery in its possession and made improper remarks during closing.

By Monte Hester, November 2004

Bail Able

Division III has recently held that courts ordering “cash only” bail violate CrR 3.2(a). See City of Yakima v. Mollett, No. 20548-7-III, Div. III (2003). For years attorneys and defen- dants have felt “cash only” bail is a violation of the court rule and the state constitution. Fi- nally, an attorney and defendant have been passionate enough about the cause that it has been brought before Division III.

By Lance M. Hester, April 2003

Bail in a Federal Case

Bernard Madoff’s alleged Ponzi scheme that’s accused of losing approximately fifty billion dollars of investor’s money gave rise to the federal government’s filing of a criminal complaint alleging securities fraud. After his arrest and initial bail hearing, Madoff was released on certain conditions.

By Brett Purtzer, January 2011

BIAS is Not Harmless

Who is telling the truth is a fact of consequence in any criminal case. I have experi- enced too often a judge sustaining a prosecutor’s objections to a question which is designed to demonstrate the bias of a witness for the state. The claim most often used as a basis for the objection is that the question deals with a matter that is collateral.

By Monte Hester, March 2004

Booker/Blakely Update

The U.S. Supreme Court recently issued its long-awaited opinion in United States v. Booker. In short, it holds as follows: The U.S. Sentencing Guidelines violate the Sixth Amendment to the extent that they allow judicial fact-finding rather than jury fact-finding for sentencing.

By Wayne Fricke, January 2005

Booker/Blakely Update

he U.S. Supreme Court recently issued its long-awaited opinion in United States v. Booker.

By Brett Purtzer, January 2005

Brady Lives

The Ninth Circuit, on July 9, 2007 decided the case of United States v. Jernigan, ___ F.3rd ___ (2007) which reaffirmed principles expressed in the United States Supreme Court case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This case involved a woman being convicted of a bank robbery. After being in prison for a couple of years, she learned that there was another woman with a similar appearance who had robbed several banks in the area at the time that the robbery for which she was convicted occurred. The government knew of this information but had inadvertently failed to turn it over to the defendant.

By Wayne Fricke, August 2007

Cat's Out of the Bag

Recently we have seen police practices that include an officer who has developed a suspi- cion of criminal activity engaging the suspect while in custody (not free to leave) in pre- Miranda questioning, including eliciting incriminating statements followed by searches which produced evidence. These pre-Miranda activities are followed by the giving of Miranda warn- ings and the request to search and informing the suspect of his right to stop the search unless a warrant is obtained.

By Monte Hester, June 2011

Child Abuse Defense

Child abuse cases involving serious injury or death are some of the most difficult criminal cases to defend.

By Brett Purtzer, January 2011

Civil Rights: Divested and Restored

The Ninth Circuit Court of Appeals has again put practitioners on notice to be careful in advising their clients if and when their gun rights have been restored under state statutes. In United States v. Brailey, No. 04-30083, May 19, 2005, the Ninth Circuit upheld the conviction for the unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(9).

By Wayne Fricke, July 2005

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