Criminal Law

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

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

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

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

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

Deadly Weapon Enhancement Shot Down!

As reported in State v. Gurske, filed August 25, 2005, No. 75156-1, a deadly weapon sen- tence enhancement was found to be improper and the matter was remanded for resentencing.

By Monte Hester, October 2005

Decline Hearing, After Trial

My client was arraigned in Snohomish County Juvenile Court on June 1, 2007, for the crime of Controlled Substances Homicide. There was no request for a declination hearing and the case was retained in juvenile court. A fact finding hearing was set for October 2, 2007, and, since my client was about to turn 18 years old, juvenile jurisdiction was extended through De- cember 31, 2007.

By Wayne Fricke, November 2008

Federal Sentencing: Using Safety Valve Reduction for Offenses Outside the Safety Valve Provision

Recently, we filed a federal habeas petition on behalf of a client who was sentenced for money laundering to 57 months based on an offender score of 25.

By Wayne Fricke, November 2004

Felony Murder Update

When is a felony murder conviction not a felony murder conviction? When the Wash- ington State Supreme Court says it is not by prospectively applying a two-year-old decision. (In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002)).

By Brett Purtzer, July 2004

Insanity and Incompetence

Not guilty by reason of insanity and competent to stand trial

By Casey Arbenz, September 2014

Mental Defense Primer

A mental health defense is often the only way to explain an otherwise appearing senseless act of violence. Most criminal defense attorneys agree that absent an affirmative defense some abnormal behavior is often the cause of a violent offense. Presenting such defense to a jury, however, is always challenging because jurors expect an individual to be accountable for his or her acts.

By Brett Purtzer, January 2006

Not One in the Same

On June 5, 2003, the Supreme Court clarified just what is subject to a speedy trial vio- lation when two charges that could have been charged together are not. See State v. Kindsvo- gel, #72541-1 (June 5, 2003).

By Wayne Fricke, July 2003

Pierce County Criminal Protocols

On March 31, 2008, the Pierce County Superior Court criminal practice underwent an overhaul from a case management standpoint. Because of a backlog of criminal cases, judges and attorneys developed protocols to attempt to reduce this backlog. The protocols are avail- able online at: http://www.co.pierce.wa.us/pc/abtus/ourorg/supct/crimlaw.htm and those who practice in Pierce County must become familiar with the changes.

By Brett Purtzer, June 2008

Predicting One's Own Death

I just returned from a murder case in Alaska and faced a relatively novel issue in defending the case. Specifically, a letter written by a future victim set forth his suspicions that a defen- dant (my client) and her alleged paramours might kill him.

By Wayne Fricke, December 2007

Prior Testimony Admitted in Retrial

Recently, in Pierce County Superior Court, I was involved in a retrial of an attempted first- degree murder wherein the victim was rendered a quadriplegic from an assault with the issue revolving on the identity of the attacker.

By Wayne Fricke, January 2006

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