Category Archives: Uncategorized

Remembering attorney Darrell Uptegraft, in the words of his friends

darrell-uptegraft

Darrell Uptegraft, an attorney known among the Kitsap County legal community for his upbeat personality and generosity of spirit, died last month at the age of 61, his life cut short after a three-year battle with ALS.

Darrell’s legacy runs deep in Kitsap, and perhaps the best way to honor him is through the words of his friends.

Collected here are the submissions I received after asking for favorite Darrell memories, but no doubt, this is a very small sampling of memories of a person who will live on in the hearts of his loved ones.

_________

Darrell was the most chronically optimistic person I have ever known. Throughout his illness – and certainly the years before – Darrell always had a smile, twinkle in his eye and quip for those clients and potential friends he encountered.

He never went into anything halfway. When Darrell took up golf, for example, he lowered his handicap from about 30 to the mid-teens in a year. Always striving to do his best at those activities and chores he took on.

The Washington State Bar Association Board of Governors met in Bremerton some months ago and, as is their custom, gave a “Local Hero” award. Darrell was the recipient. After being presented the award, and sharing some funny tales about his life as a lawyer, Darrell said:

“The real heroes here are my friends who have helped me throughout this process. It is said someone can share their time, their toil or their treasure. I have been the lucky recipient of all three from my great friends.”

The governor next to me was sobbing. Like so many of us, he was touched by the width and depth of Darrell’s optimism, character, appreciation and love.  And, yes, he did have an extraordinary group of friends. He will be missed by many, for a long time.

Jeff Tolman
Tolman Clucas, PLLC
Poulsbo

During the mid to late 1980s, I lived with my family near the intersection of 17th Street and Ohio Avenue, across from Memorial Field. Darrell lived down the block on 17th near High Street.

He owned a 1950s model MGTD sports car which was his pride and joy.  He drove by all the time looking extremely happy in the moment.  I would wave and remind him to, “Take good care of my (actually his) car.”

He was a happy guy and made all of us feel better.

Mike Liebert
Michael Liebert, PLLC
Silverdale

I’ll always remember Darrell because he helped me get everything I could ever want. In law school, I lived in Seattle and was applying to a bunch of jobs in King County. On a lark, I applied at McCluskey, Sells, Ryan, Uptegraft and Decker as well. I interviewed with Darrell.

To this point, interviewing was a staid, uncomfortable and stressful process. Interviewing with Darrell was the opposite. He was animated, engaging and interesting. He obviously loved what he did, loved where he worked and loved the people he worked with. I got offered a few jobs in King County. But I took the job that Darrell offered me. I took it because I wanted to love what I do, love where I work and love who I work with.

Darrell was my first mentor. He taught me so much about the practice of law. He had an incredibly inventive legal mind I envied. But most of all he showed me that no matter how stressful practicing law could be, it could be done with a smile, a laugh and kindness.

Thanks to Darrell, for the last 20 years I have loved what I do, loved where I work, and loved the people I work with.

David P. Horton
Templeton Horton Weibel, PLLC
Silverdale

Darrell was one of the most positive people I have ever known. All the time, even when faced with his final challenge. He always had a smile; it was always a joy to be with him; he was always generous. I wish everyone could be more like him. I wish I could be more like him.

Paul Fjelstad
Attorney
Bremerton

Bainbridge’s Wiggins keeps lead in state Supreme Court race

statesupremecourt

Despite a full slate challenging the state Supreme Court justices up for election — and a whole lot of Richie Rich-tier money being thrown at TV stations for commercials — all incumbents are retaining their seats, according to preliminary results.

That includes Justice Charlie Wiggins, of Bainbridge Island, who was hit with a last-minute advertising push to the tune of about $1 million on behalf of his opponent, Federal Way Municipal Court Judge Dave Larson.

The ads were paid for by two business PACs using the good cop vs. bad cop routine: one bought ads praising Larson, one bought ads slamming Wiggins for his vote in a criminal law case.

However, it wasn’t likely the criminal law case that drew the ire of Washington state’s wealthiest. The slate of challengers was critical of the court’s rulings on education funding and striking down charter schools. Business leaders are also not too enthused about the court’s ruling on a $15 minimum wage case.

This spending put Wiggins in the hot seat, and made him appear to be the most vulnerable of the three justices up for consideration in the general election.

You might also think Wiggins was hobbled because the Seattle Times endorsed Larson, but do voters rely on newspaper ed boards to tell them who to vote for? What is this, the 1890s?

Apparently, it didn’t matter and all that gazillionaire money was for not, as the latest results from the state Secretary of State show Wiggins comfortably leading about 58 percent to 42 percent. (CORRECTION: I’m sure that money made the people at the TV stations very happy).

An interesting comparison here — pointed out by Wiggins — is the race between Justice Mary Yu and Gonzaga Law professor David DeWolf, which Bill Gates and Paul Allen and that uberwealthy guy from Camas did not spend their money on, resulted in virtually the same split: 58 percent to 42 percent.

(In both races, the incumbent campaigns outspent their challengers.)

The issue underlying this story of Big Money in Politics is the wisdom of electing judges. Federal judges are appointed, and some believe this is a better way, as making judges stand for election turns them into politicians, as everybody knows there is nothing political about the federal courts.

However, I found it interesting when explaining its thinking, former state Sen. Rodney Tom, a political shapeshifter from the ritzy East King County enclave of Medina who represented one of the PACs, said the criminal case in the critical ad wasn’t necessarily the issue that brought together some of the richest business bros in the state … It was, however, an issue that could be easily explained in a fleeting TV ad full of shadows and foreboding music and a sex offender.

A group of notable criminal law experts, including former Kitsap Prosecutor Russ Hauge, responded that the ad explained nothing and requested it be taken down.

Wiggins told me yesterday he was thrilled to see the numbers turn his way, though he was sweating when he learned the amount of money being spent on behalf of his opponent.

“I was quite worried,” Wiggins said. “People kept telling me to not worry, but it’s a little hard to not worry about something like that.”

Wiggins also wondered if the plan backfired: the $1 million campaign made news, and was well-reported by the Seattle Times and also reported, maybe not as well, by me.

Larson did not respond Thursday to a phone message, and an email, left with his campaign.

Ferry fights may be more legend than fact

punched-in-face

I’ve seen some weird stuff aboard the Washington State Ferries, and I’m not talking about mermaids beckoning me to join them in the briny deep. But I have never seen a fight.

Certainly not even close to what the passengers and crew of the Hyak endured last week when a 23-year-old woman allegedly attacked her male companion, while four ferry workers tried to restrain her and she stripped naked. By the way, there is no indication that all this started over the new concessions contractor jacking up the price of a cup of coffee from $2 to $3.01.

The ferry captain returned the boat to the Bremerton terminal to turn over the woman to police. She has since been charged with two counts of third-degree assault, felonies, for the attacks on the ferry workers and remains in the Kitsap County Jail.

A noteworthy fact of this case is that ferries spokesman Ian Sterling told Seattle media, and the Kitsap Sun, that fights are not uncommon aboard the ferries, particularly on the 60-minute Bremerton-Seattle route.

“The crossing is longer, so you have longer for something to go wrong,” Sterling said, adding that incidents are more common following big sporting events.

This assertion raised eyebrows around here, as many of us could recall seeing strange things aboard the route, but no fights. In fact, I’ve heard the opposite, that people have witnessed what appeared to be love making. No fisticuffs though.

So we asked Sterling to provide some numbers, which he did. According to those numbers, the incidents of anarchy are in fact much more frequent aboard the Bremerton route. But for two reasons, the information does not support the assertion that the Bremerton ferry is hosting some kind of fight club.

Plus, the Washington State Patrol sergeant who handles security for Colman Dock, among other ferry terminals, could recall only two incidents that rose to the level of violent criminal conduct over the past couple of years, and both of those were aboard the Bainbridge Island ferry.

(First, some history: Perhaps the most legendary melee in ferries history, “The Great Bremerton Ferry Punk Rock Riot of 1987,” which definitely needs a folk ballad written about it, caused $40,000 worth of damage to the Kitsap and also involves nudity. The seminal British punk band GBH played Natasha’s in Navy Yard City. While concertgoers sailed back to Seattle, the riot seemed to have kicked off after a couple of Bremerton police officers intervened when a woman started an impromptu strip show on top of a table.)

After reviewing the ship’s logs starting Jan. 1, 2011, to Thursday, WSF reported there have been eight “assaults” and seven “altercations” on the Bremerton route.

Next highest is the Bainbridge route, with two “assaults” and five “altercations.” These amount to 22 of 30 incidents reported by WSF over the five-year period.

Every year WSF carries about 22.5 million riders, according to the state Department of Transportation, with the Bainbridge route alone carrying almost 6.3 million riders in 2013.

“If you look at the numbers and think about how many thousands of sailings we have every year, and that there are only eight assaults on the Seattle-to-Bremerton run in five years,” WSF spokeswoman Broch Bender said, before trailing off. Then she added: “We want to see that number at zero, of course.”

How the ferries defines “altercations” and “assaults” also is unusual and problematic when trying to support the assertion that fights on the Bremerton route are not uncommon.

Bender said the numbers represent a “good approximation” of incidents as recorded in ship logs. She defined “altercations” as typically including physical or verbal incidents among passengers and “assaults” as typically physical or verbal attacks inflicted by passengers on ferry employees.

This, of course, muddies the water.

An “altercation” is by definition not a physical dispute, but a verbal one. “Altercation” means an angry quarrel or a noisy disruption, especially in public.

In state law, an “assault” is a physical attack, not a verbal attack.

Washington State Patrol Sgt. Kyle Smith could recall two incidents, beside this most recent one, that would rise to the level of assaults as defined by law. He has been posted on the Homeland Security detail at Colman Dock since September 2014.

One, this year, was a domestic violence incident that appeared to have started in the vehicle waiting area on Bainbridge Island and escalated into an assault while underway. That case was referred to King County prosecutors, Smith said.

The other, in February 2015, involved a group of people who were being obnoxious. When confronted by a ferries worker, a shoving match ensued, according to court documents, and it escalated to punches and spitting. The group was rounded up by law enforcement once they landed on Bainbridge.

While this incident last week was likely frightening for passengers, the crew and the woman’s victim — and turning the boat around obviously is unusual — it doesn’t appear that violence is at all common aboard the ferries.

As for the price of a cup of coffee going up $1.01, violence might feel like the appropriate response, but it is not. I repeat, it is not.

‘Receipts’ now available to show debt to society has been paid

Tarra Simmons and Superior Court Judge Melissa Hemstreet
Tarra Simmons and Superior Court Judge Melissa Hemstreet

In hopes of learning the process so she can help other people with criminal records transition back into society, and help address some of the causes that lead people back to crime, Tarra Simmons received her certificate of restoration of opportunities on Friday.

In April we wrote about Tarra, a second-year student at the Seattle University School of Law, and her work to help people transitioning out of prison and jail. It’s personal for her, as she spent nearly two years in prison following a descent into meth and crime. Now she plans to become a lawyer and help Kitsap residents get back on their feet after being imprisoned.

The law allows people who have been convicted of certain crimes to petition a judge for a certificate that shows they have completed their sentence and have been law abiding citizens.

King County Prosecuting Attorney Dan Satterberg described the certificate as “a receipt that says the person has paid their debt to society and can move forward.”

It’s especially important, advocates say, for those whose job requires on an occupational license from the state and can also help when finding an apartment. It does this partly because it updates a person’s records so when an employer or landlord conducts a Washington State Patrol background check, there will be a note that says the person received the certificate.

Simmons had prepared a statement to explain the new law – it took effect earlier this month.

“I just wanted to at least give oral argument, explain what it was, why I’m eligible,” Tarra said, adding that she had prepared a statement. “And then the prosecutor agreed and said I was eligible, so I didn’t get to say anything.”

Tarra said she heard that nobody in King County has yet received the certificate, and she believes she is the first in Kitsap.

For more information on the certificates, and information on how to get one, go to this Columbia Legal Services page.

Why don’t people leave their meth at home before they go shoplifting?

shoplifting

Among the mysteries of life – Why are the most enjoyable things so bad for you? Magnets? How do they work? – one that has long left me hanging is why people go shoplifting when they are holding meth/heroin.

The typical charge for shoplifting – or stealing goods or services less than $750 – is third-degree theft, a misdemeanor. It’s like the iceberg lettuce of the criminal justice world.

On the other hand, the charge for possession of heroin or meth is a felony. And felonies have all sorts of implications, including jail, where it is difficult to score hard drugs.

A potential answer seems intuitive, though: when you are a drug addict, you need money to buy drugs and one way of doing that is by shoplifting. Even the best might make a mental error now and again.

One statistic found that shoplifters are caught 1 in 48 times they steal, and are turned over the police about half the time. Murphy’s Law dictates that the one time you get caught, and the cops get called, it’s you and your daughter at the Winco and you are holding  some meth.

It also seems intuitive, though, to do your best to stash your smack before going shoplifting.

The weekend’s crop of in-custody charges provides two more examples:

In one, a 30-year-old man allegedly tried to steal four bottles of wine from the East Bremerton Safeway on Saturday and got caught. But then a Kitsap Sheriff’s deputy found a little baggie of suspected meth in the suspect’s pocket.

“How did that get in there?” the man asked the deputy. Unfortunately, the suspect passed up the opportunity to use the much-celebrated “These aren’t my pants” defense. When the deputy asked what was in the baggie the suspect admitted it was meth.

In the other, also on Saturday, a 33-year-old woman got busted for trying to steal $76 worth of stuff from the Wheaton Way Goodwill. You might be surprised how often people try to steal from Goodwill.

In any event, the police officer found some heroin in her bag – a bag which she said her friend handed to her on the way into the store.

The subject has drawn some interest from the academy. The good people at Rutgers University looked into it, sort of, and here is what they found:

“We conclude that gender and agency is played out in this urban environment through crime selection and underlying rationales.”

So there you go. Just like magnets, we may never understand.

Teacher on leave returns to JeffCo classroom after threatening to kill administrator

A Port Townsend High School teacher placed on leave in February after a mental health incident at school was arrested Friday after returning to his former classroom during fourth period and startled his former students.

The teacher, 52, was booked into the Jefferson County Jail for investigation of second-degree burglary and felony harassment, according to a statement from the Port Townsend Police Department.

The unauthorized visit to the school followed a contentious meeting with administrators at a local restaurant, where the teacher allegedly threatened to kill a school administrator.

Hours after the meeting the teacher went to the school. He had a folding knife on his personal, but did not threaten anyone with it and placed it on a desk when confronted by police.

Students were escorted out of the classroom during the incident and were offered counseling and encouraged to call their parents, according to a statement from the school. Counselors may be available next week as well.

“No staff or students were injured, though some reported they were alarmed by Miller’s behavior and swearing,” the statement said. In the classroom, with students and the substitute teacher present, the teacher “began removing personal items from the wall, appeared to be talking on his cellular phone, described personal details of his life to students and started asking the teenagers if anyone had been talking about him since he was placed on leave.”

Police had previously been called to the teacher’s classroom, on Feb. 4, when he was reported to be suffering from a mental health condition. He was removed from campus, put in contact with mental health treatment resources and informed he was prohibited from returning to campus.

At the meeting the preceding Friday’s incident, a plain clothes police officer was seated in another part of the restaurant to “keep the peace” and was told of the threat against the administrator after the teacher had left.

Kitsap Sheriff’s Office tries cheeky approach on social media

KCSO FACEBOOK

The Kitsap Sheriff’s Office’s efforts to engage with residents over social media are picking up, and yesterday it premiered a cheeky approach on Facebook to getting attention for wanted suspects.

At this point tentatively dubbed “warrant Wednesday,” and loosely inspired by Bremerton Police Chief Steve Strachan’s weekly newsletter, the posts give a first-person account of some of the person’s crimes.

Deputy Scott Wilson, the author of the posts and one of three of the office’s social media managers, said the posts have received incredible attention, with 51,000 views.

“Yesterday was putting our toe in the water,” Wilson said. “Jees, it took off like crazy.”

“Whoa is right,” Wilson said, who acknowledged they are a departure from the office’s typically “vanilla” posts.

It’s not something the office wants to do too much of, however, Wilson said. At some point, if overdone, the posts would lose their punch and would become Internet noise.

They have also generated criticism, with a commenter on one post weighing in that it is belittling and unprofessional.

Wilson, who serves as the office’s spokesman, acknowledged that feedback.

“Some took offense,” he said. “Well, OK, I understand. We’re just trying to be tongue in cheek.”

Despite the speed at which information moves in the social media era, Wilson noted that as a post on one warrant suspect was being prepared, deputies were closing in and took the suspect into custody.

The office plans to use its Facebook page for education, everyday community outreach and highlighting personnel changes and milestones. Its Twitter feed, Wilson said, will be used for public safety updates and immediate issues the office wants to communicate to the public.

Sailors believed cocaine would clear their systems before Navy could drug test them

dwight shrute

As somebody who regularly reads felony filings from Kitsap prosecutors, I was a little puzzled by the interest in a recent bust of suspected cocaine dealers, as cops and prosecutors routinely bust drug dealers and users. By “routine” I mean “almost every single day.”

(Possession of pretty much any drug other than pot – which is legal in the state – is a felony.)

It’s interesting that it appeared the sellers had a strong customer base on-base, shall we say, but mostly it struck me as unusual that the drug was cocaine. There isn’t a lot of cocaine coming to the attention of law enforcement in Kitsap. A little bit of crack now and again — and apparently there is plenty of crack in Seattle and Tacoma — but powder cocaine is more expensive, and less powerful, than meth, a drug for which Kitsap does have a considerable appetite (Meth and heroin, then prescription pills, are what I’ve seen the most of reading felony filings). If I could find on kitsapsun.com a relatively recent story I wrote about Kitsap’s tastes in hard drugs I would link to it here.

(Here is a link to that story)

If I had to bet, however, I would assume there is plenty of coke in the more affluent areas of Kitsap and among certain groups, like the fish swimming through Kitsap waters. However, a coke habit may not be as crippling as other hard drug addictions, so maybe there are more casual users who otherwise keep their affairs in order. They aren’t out there stripping copper wiring from construction sites and jacking baby formula from the Wheaton Way Wal-Mart, so maybe they fly under the radar.

But what I found most interesting was this passage in the probable cause statement, as written by an investigator with the Sheriff’s Office:

“I learned the common belief by the sailors is that users can ingest the Cocaine over the weekend and have the Cocaine clear of their system come Monday morning – if a urinalysis is conducted by the Navy.”

It was, in fact, a urine test that brought the drug use to the attention of the Navy, which then set into motion the bust. So, apparently that calculation was incorrect.

Or maybe it wasn’t.

Marijuana, which sailors are forbidden from using, lingers in a person’s body and for heavy users can be detected for up to a month. At least that’s the common understanding, although it might not be totally accurate these days.

But as for “drugs of abuse,” pot really is the in-law who won’t leave. Almost all other drugs clear out of a person’s system in a matter of days, especially for the casual user.

Cocaine and its metabolites are detectable for up to five days, according to the Mayo Clinic, so depending on the Navy’s drug testing regimen, how often they test, how “random” it is, and an individual’s metabolism, chances are a person could get away with it.

At least, as we have seen, they can get away with it for a while.

Solved: The mystery of the missing trampoline

Simpsons-trampoline-540x353

An uproar on a local Facebook page over a trampoline that went missing last week resulted in the trampoline being tracked down when the alleged thief caught wind of the hubbub and called deputies to say he took it, but he did so because he thought it was scrap metal and was being discarded.

Interest in the theft of the trampoline, which had been disassembled and left in a yard of a house that was being vacated, started Sunday when a neighbor of the residence posted surveillance images of the man’s truck to the Port Orchard Facebook page.

The post amounted to a South Kitsap all points bulletin, and the comments section filled with people claiming they knew the truck’s past owners, real time reports of its location but also that the Kitsap Sheriff’s Office was not responding promptly or taking the missing trampoline seriously.

One person wrote that because of cases like this they feel they are being forced to take the law into their own hands.

“When we do we are the wrong doers and the ones who get Arrested. Oh Well, I will protect my Family and Property at all costs. You cannot count on the Police.”

The Facebook furor eventually came to the attention of the suspect.

“He then realized he had taken the wrong trampoline,” a deputy wrote. The man called the Sheriff’s Office Monday morning and said he had the trampoline and would return it.

The suspect told the deputy that after picking up the disassembled trampoline on Thursday, he stopped by a nearby duplex that was under construction and was given a used baseboard heater. Deputies confirmed that he had permission to take that scrap metal.

At the request of the owner of the trampoline, a report was forwarded to prosecutors for review for possible charges of third-degree theft.

 

If a suspect confesses, why do they plead ‘not guilty?’

chon-day-we-find-the-defendant-guilty-as-charged-by-the-media-new-yorker-cartoonIf a person confesses to a crime, why do they plead not guilty in court?

It’s a common question and came up last week when Hap Jackson’s 21-year-old grandson confessed, multiple times, to stabbing his 90-year-old grandfather at his Rocky Point home.

Between detailed admissions to investigators, and to the 911 operator he called, plus deputies finding a bloody knife in the kitchen sink, where Willie Jackson said he left it, plus statements Willie Jackson made online immediately following his grandfather’s death, it’s reasonable to think that he did it.

But when he got into court, he pleaded not guilty. What gives?

First thing to understand, said Bremerton defense attorney Tom Weaver, is the difference between “innocent” and “not guilty.”

Not guilty can mean innocent – as people are presumed innocent until found guilty – but in essence, pleading not guilty sets into motion the process where attorneys can review the case. Otherwise, once a plea is accepted, the next step is sentencing.

Defendants may be suffering some sort of mental illness, Weaver said, and that has to checked out. They may have been compelled to make the incriminating statements. There are the rare cases where police simply make up a confession. Then there are cases when people make false confessions.

When a defendant enters their plea — the hearing where this is done is called an arraignment — often defense attorneys only have the charging document — called a probable cause statement — which is sort of an outline of the case against a defendant. Prosecutors ultimately have to turn over all the evidence gathered by investigators, a process called discovery, but that can involve a lot of information, interview transcripts, medical documents, reports, etc.

“Pleading not guilty allows the time to do those things,” Weaver said.

In fact, it’s not unusual for a judge to enter a not guilty plea on behalf of a defendant, or in some cases, simply decline to accept a guilty plea at arraignment.

x2xdOe8When it comes to serious cases, like murder, it would be extremely rare for a judge to accept a guilty plea at an early appearance.

“Legally, you have the right to plead guilty at arraignment,” said Chief Deputy Prosecutor Chad Enright. “But it is a qualified right.”

In cases where a person is charged with aggravated first-degree murder, state law prevents them from pleading guilty for 30 days after arraignment, Weaver said.

The judge – whose job is to protect a defendant’s rights, lest the case be returned to their courtroom on appeal – has to make an independent determination that the plea is voluntary. They also have to make sure that a defendant understands the nature of the charges, possible consequences and that they are giving up their right to a trial and to appeal. Enright said at arraignment there usually hasn’t been enough time to accomplish all that.

In some cases, for low level offenses, a judge may accept the plea. And in others, where a defense attorney is thinking strategically and advises his or her client to plead to a lower degree of a crime to ensure prosecutors won’t get the chance to ratchet it up, Enright said a judge may accept a guilty plea. However, it’s likely the defense attorney would need to go through the checklist, telling the judge that the defendant had been properly informed and the attorney had a complete understanding of the investigation and was able to competently advise the defendant.

“I can’t recall seeing that happen, but hypothetically I can think of a circumstance like that,” Enright said.

To illustrate how entering a not guilty plea can be a formality, Weaver related an anecdote from his time as an intern for the Washington D.C. public defender’s office. A shoplifting suspect was brought in front of a judge for a very brief arraignment, the legal system’s equivalent of speed dating. The defendant explained to the judge that she was a tourist, she had shoplifted and she lived in Minnesota. It would be extremely expensive to travel back and forth and she just wanted to plead guilty, take her lumps and get on with her life.

When the defendant stopped talking the judge looked past her and asked, “Whose case is this?”

A lawyer in the background piped up: “I’m sorry, your honor, we plead not guilty.”