Kitsap Crime and Justice

It’s usually quite fascinating to find out how juries arrive at their conclusions following deliberations.

In the case of State of Washington vs. Darlene Green, jurors convicted Mrs. Green of first-degree manslaughter in the death of her husband, William “Bill” Green, at the couple’s Illahee Road home in June 2010.

We now have a first-hand account of those deliberations (though a tweeting juror did give some brief insights earlier). They come from Megan Tracer, known during the trial as juror No. 11.

She was comfortable answering some questions over email about the trial. Here’s what she wrote:

Q: Did you enjoy being a part of a jury on a trial with such subject matter?

A: Don’t know that I can say I enjoyed it, but it was very interesting. The subject matter was difficult because of what we saw and it was hard because of the attention needed to hear the case without prejudice or bias.

Q: Darlene Green’s attorney Roger Hunko felt this was a “compromise verdict,” that is, the jury didn’t want to convict on murder but was not fully on board with acquittal either. Do you feel that was true, and if so, why?

A: I don’t think it was a compromise verdict. I think that with the information we were given, there wasn’t enough to go with murder 2. In the beginning, there were a few of us that were leaning toward murder, but we could not say there was motive and intent with what information we had to work with. I know there was a lot that was not brought up at trial, and without more information I don’t think we could have gotten to murder.

Q: Did the jury ever vote to ascertain where people stood? And if so, how did it start and change?  

A: Yes. In the beginning we had I believe three people that thought she was guilty of murder 2 and split 6/6 on manslaughter. When we voted again on Friday morning, we only had two that thought guilty of murder and nine guilty of manslaughter. After discussions, we decided there wasn’t enough information to say she had motive for murder and focused on manslaughter. We decided that because of the confession and the evidence that supported the confession and nothing supporting Darlene Green’s testimony, she was guilty of pulling the trigger. We voted 11/1 guilty on manslaughter, then shortly after agreed unanimously on guilty of manslaughter and not guilty of murder.

Q: How did you feel personally about the evidence presented?

A: I personally believe that the evidence supporting the confession was there. Everything lined up with what Darlene Green said she did to all the officers she spoke with on the day of the murder. The defense gave a good theory, but I think it was just that – a theory. You can say that a crime happened a number of ways, but does the evidence show that? For me, I don’t think that it did. It could make sense to some, but there was too many other options to go with that. After Mrs. Green’s testimony, I could not see that the evidence supported what she said happened. She said he was at the end of the foot rest, that he fell on her and rolled off but the body position did not line up with that. Then she said that she didn’t remember, but she did. Then the comments she made about “What is the big deal?” and having a casual conversation about retirement. The evidence from the state I could not find reasonable find doubt in, but the defense I could.

Q: Who had the better case, in your opinion?  

A: I think both could have been better, but would have to go with the state. They proved for me beyond a reasonable doubt that Darlene Green shot her husband on that day and thought because he told her to, it was ok to do. From the pictures and the expert witnesses supporting her confession, they did a good job of presenting the evidence. The defense gave good evidence supporting their theory, but I think there were too many holes showing that something else could have happened, and information left out that should have been talked about. The robe that the defense said had no blood on the upper portion was incorrect. There was blood all over the arms of the robe, so for me that was something that put a lot of questions in their witnesses. Also, the doctor who was given information by Mr. Hunko to support suicide, but said he had no patients who had done so. Mrs. Green’s testimony I don’t think helped them either. With her saying she didn’t remember, but then said she remembered certain things, then the big ball of stars… that didn’t make sense to me. Nothing about her testimony made me think that Mr. Green shot himself or that what she said happened did. I do think that both sides could have done better though.  It seems there was more information about their past that would have been relevant to this trial, but we did not hear that.  Had we known some of the things I have heard since, we may have believed there was a motive for murder. Also, I think that if Mr. Hunko had been more forthcoming with the blood on the robe and given a reason for it being there, we could have had an explanation for it being there other than she shot him. Could have caused more doubt.

Q: How did you feel about (attorney) Roger Hunko?

A: I think that Mr. Hunko has a big heart and that he is very close to this case. I believe that he really did a good job at keeping elements out of the case that would have made it easier to convict of murder and that he brought up some doubt with the void theory, but not reasonable. He seemed a little disorganized and all over the place, but with what he was working with, think he did a good job.

Q: How did you feel about (deputy prosecutor) Kevin “Andy” Anderson?  

A: I believe that Mr. Anderson had a difficult job here. Having to bring forward a case like this, it could not have been easy on him. I think that he was very straightforward and to the point, which almost seemed cold at times, but worked for getting his point across. He did a really good job at presenting the evidence to support the charges and to break down what the defense was presenting also.

Q: How difficult was it to convict an 81-year-old woman? 

A: It was VERY difficult to convict her. We had to put things into a different perspective to not think about her age. What if it had been our father or grandfather? Would we feel differently? What if it was a 30 year old woman? Would we feel different? We also were asked in jury selection if that would be a problem and were told that we had to remember a crime was committed and that we had to know we were there to be a judge of the evidence and not a judge of the law. It is the job of the judge to enforce the law and give her a sentence, not us. We had to remind ourselves of that several times during deliberations. It was brought up by some asking what would happen to her and others reminded us that we could not think about what would happen to her because that was not for us to decide. We could only look at what was presented to us and if she did it or not. I will say though that after the verdict was read and I left the courtroom, I was almost in tears.  It was very hard to look at her in the courtroom and know that she would be going to jail.  I am glad that we left the courtroom before seeing her handcuffed and took off to jail. That was really hard to read in the article later. I can say though it would have been hard if it was a 30 year old too though!!

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On Friday, jurors weighing the case of Darlene Marie Green returned with a verdict of guilt on the charge of manslaughter. We had a story, in case you missed it, chronicling the jury’s decision.

As a reporter, I always like to discuss the trial with the jurors who handled it. But in this case, they were out the door before I left the courtroom. (Note: if any would want to discuss their feelings on the case, I’m all ears. Just drop a note to jfarley@kitsapsun.com.)

There was one juror in the case, though, that took to his Twitter account following the verdict. In fact, @adamoffburwell replied to my tweet of “The jury has reached a verdict in the case of Darlene Green,” with “yes we did,” and said he was juror No. 7.

@Adamoffburwell posted several tweets about his experience serving on the jury, including: “I felt the jury did its job in the darlene green case and didnt take the easy road.” I’ll let you see the rest for yourself.

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CASE BACKGROUND: Today will be the final day of trial in the case of State of Washington versus Darlene Marine Green.

The 81-year-old Green is charged by Kitsap County prosecutors with second-degree murder. She’s accused of killing her husband, William “Bill” Green, on June 18, 2010 at the couple’s Illahee Road home.

Ms. Green’s attorney, Roger Hunko, asserts Mr. Green killed himself.

We’ll begin shortly with closing arguments.

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CASE BACKGROUND: On Tuesday, Roger Hunko, attorney for Darlene Marie Green, 81, got to start his case: that Green did not kill William “Bill” Green, her husband of 57 years, on June 18, 2010. Hunko contends his death was a suicide.

County prosecutors, who say Ms. Green told everyone she talked to on that day that she’d killed her husband, have charged her with second-degree murder.

Today, Hunko expects to wrap up his own case — which may include the testimony of Ms. Green herself.

We’ll get started at 9 a.m.

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CASE BACKGROUND: Darlene Green, 81, is charged by county prosecutors with shooting her husband, Bill Green, while her attorney asserts Mr. Green shot himself. On Monday, jurors heard opening arguments in the case and several witnesses testifying on behalf of the prosecution.

For the full story, click here.

Today, deputy prosecutor Kevin “Andy” Anderson is expected to wrap up his case and Roger Hunko, Green’s attorney, is expected to begin his own.

Click below to follow the trial live, beginning about 9 a.m. (Kitsap County Superior Court Judge Jay B. Roof has some commitments prior to the trial that may delay the start time a tad, he said Monday afternoon.)

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CASE BACKGROUND: Opening arguments in the murder trial of an Illahee woman accused of killing her husband in June 2010 are expected this morning in Kitsap County Superior Court. 

Darlene Marie Green is charged by county prosecutors with both second-degree murder and first-degree manslaughter in the shooting death of her husband, William “Bill” Green, at the couple’s Illahee Road home on June 18, 2010.

Kitsap County Sheriff’s deputies say in court documents that Green shot her husband after he provided her a gun and “egged her on” to do so. But in more recent documents filed in the case, Green now asserts her husband shot himself.

We’ll begin the live blog at 9 a.m.

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The case of a Florida man charged with a felony for the theft of $1 worth of liquid has reverberated around the country. In case you hadn’t heard, here’s the gist: man goes into an East Naples fast food joint, gets a cup for (free) water, and uses said cup to help himself to a fountain drink.

The manager asked him to pay. He refused, the cops came and took him away, according to fellow Scripps’ website Naplesnews.com.

Not every theft in Florida is a felony. But it turns out the Sunshine state has a pesky law that raises a petty theft charge to a felony when the person has multiple petty theft convictions. That takes the penalty the man faces from a maximum one year stay in his local jail to the possibility of five years in a Florida prison.

So, do petty thieves in our home state of Washington face that same fate? The short answer is no not exactly.

Clarke Tibbits, head of the Kitsap County Office of Public Defense, says defendants here can purloin goods worth less than $750 repeatedly and only face a gross misdemeanor each time. “Multiple (third-degree thefts) don’t result in felonies,” he says, noting he once worked a case in which the defendant had a whopping 27 shoplifting convictions on his record.

There are some exceptions: if the theft exceeds $750, that bumps a charge up to a felony (and possible prison time). Also, the defendant can be charged with burglary if he had previously shoplifted and been trespassed from the place he’d returned to steal from.

UPDATE, 4.30.12: A reader informed me Monday that there is indeed another possibility for a felony to come from shoplifting: a state law passed in 2006 known as “retail theft with extenuating circumstances.” A person can be convicted of that crime if:

(a) To facilitate the theft, the person leaves the mercantile establishment through a designated emergency exit;

(b) The person was, at the time of the theft, in possession of an item, article, implement, or device designed to overcome security systems including, but not limited to, lined bags or tag removers; or

(c) The person committed theft at three or more separate and distinct mercantile establishments within a one hundred eighty-day period.

Obviously, (c) applies here. So indeed Washington does have a felony for a frequent shoplifter — but the thefts must have occurred within 180 days.

I must apologize for this omission, but it’s important to set the record straight.

It’s worth noting that these distinctions govern only the amount of time one would face for filling up that free cup with a fountain drink. In our state, there is no theft so de minimus that it could not lead to a pair of handcuffs in the eyes of the law.

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A Washington state trooper publicly admonished the risky recent actions of a motorcyclist who’d plopped his dog on the back of his bike and rode “miles down” Highway 3.

Trooper Russ Winger took to Twitter to post the worrying photo. “Trooper stopped this duo in Kitsap Co Monday. Dog just standing on seat after miles on freeway,” he wrote.

You can see the photo here. The dog is standing up on the seat behind his driver, riding perpendicularly — and precariously — above the road.

Evidently, someone inquired whether having the dog ride shotgun was such a good idea. Long story short: no. Winger also injected a little humor into the situation.

“And since you asked, this is not safe or legal,” Winger wrote in a followup tweet. “Obviously not the dogs first rodeo-cuz he’s got style. Ticket ? Yes. Dog-verbal warning.”

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The race for appellate judge David Armstrong’s seat appears to have taken shape, with three lawyers vying to serve on the Tacoma-based court. 

Thomas “Tom” Weaver, longtime Bremerton defense attorney, had previously announced his candidacy. He’s now been joined by Pamela “Pam” Loginsky, a lawyer with the state’s prosecutor’s association, as well as Thomas Bjorgen, a veteran Olympia area attorney.

Sheryl G. McCloud, who’d previously pondered a run at the appellate seat, has now set her sights on the state’s supreme court.

We’ll have more about the three candidates as the race continues to develop. It’s still early, though both Loginsky and Weaver have raised $10,000 toward their respective campaigns.

Armstrong is a part of a seven-judge court, which hears appeals of any case out of superior courts in Mason, Kitsap, Jefferson, Pierce, Clallam and Grays Harbor counties. While the court conducts its business rather quietly (it issues written opinions) its rulings can have dramatic impacts

In other judicial elections news, both defense attorney William Houser and general practice attorney Jennifer Forbes have declared to the Public Disclosure Commission that they intend to run for a seat on Kitsap County Superior Court this fall. All eight judges on the court — including new appointees Kevin Hull and Steve Dixon — will stand for election. It is unknown thus far which seat Houser and Forbes will seek.

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(Blogger’s note: Back to help us untangle our often complex legal system is Stan Glisson, a local Bremerton defense attorney. You might remember his last column explaining whether a driver flashing his headlights is a first amendment right. Here’s Glisson’s take on two supreme court decisions this week that will give criminal defendants far greater abilities to challenge decisions in the prcoess known as ‘plea bargaining.’)

In two brand new decisions, the US Supreme Court has dramatically extended legal protection to criminal defendants in the plea negotiation process. Historically, courts have protected defendants against incompetent defense with the ‘ineffective assistance of counsel’ standard. Basically, the accused person can be granted a new trial when the lawyer’s level of skill at trial appears so poor, or a strategic decision so difficult to justify, that that the jury did not hear a reasonable defense.

Now, the Supreme Court has extended this protection to apparently incompetent representation even on cases that don’t go to trial. In Missouri v. Frye, the defendant was offered a misdemeanor plea and 90 days in jail for what could have been a felony driving offense. The lawyer did not tell the client the plea offer, and it was eventually withdrawn. Later, the accused plead guilty to the felony and received a sentence of three years in prison. The high court decided that failure to advise the client of the favorable plea offer was ineffective assistance, and has now vacated the three year sentence.

For the Court, this is a huge departure and a bold change in the law. The decision requires of the states an enormous undertaking; find a practical way to monitor plea negotiations, previously regarded as semi-confidential, for effective advocacy. The Court recognizes that nationwide about 95% of criminal cases are negotiated short of trial. The decision explains that to a large extent “[plea negotiation] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” As such, the criminal defendant is absolutely entitled to have competent, diligent counsel at the negotiation stage, just like they are at the trial stage. Defense counsel has a duty to communicate potentially favorable plea offers to the defendant, and the court now will have some obligation to monitor that interaction.

Interesting that the Supreme Court made note of one common, and deeply disturbing, phenomenon that occurs with plea negotiation. “[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.” The Court does not suggest, as personally troubling as this is, that the court should be involved in changing that outcome. The key issue is whether the defendant was aware of his or her plea options, and made a knowing and informed decision to go forward to trial, understanding the risks that follow. The reality that a less culpable defendant often receives the far harsher sentence is a symptom of the plea negotiation process and prosecutorial discretion, and will be upheld absent ineffective representation.

In Washington, this idea is not new. In a 2005 case, a local lawyer was suspended from practicing law after it was documented that he failed to communicate a written 57 month plea offer to a defendant. The case went to trial, the defendant was convicted, and faced at least 221 months in prison. When the facts about the plea negotiation process were revealed, the Superior Court withdrew the convictions and the defendant was ultimately allowed to accept the original 57 month offer.

So our courts have been willing to listen to the occasional extreme case of ineffective plea negotiation representation. But the US Supreme Court now appears to be requiring that courts be prepared to examine that process in every criminal case. The inquiry, the Court explains, becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is inherently difficult, as “The art of negotia­tion is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.”

So how are the courts going to administer this extra responsibility to ensure competence in negotiations? The Supreme Court suggests plea negotiations in writing, perhaps filed in court to show the history of the negotiation process. This is a major practical challenge, but would protect prosecutors and courts from frivolous motions based on unfavorable post-trial sentencings. For example in 2010 nearly 10,000 misdemeanor cases were filed in Kitsap County courts. In one local court, two public defenders last year were assigned nearly 900 criminal cases to handle. Despite growing obligations and legal expectations placed on public defense attorneys, funding for those positions is routinely insufficient. Frankly, it is not a popular place for elected officials to suggest taxpayer money be spent, when prosecution and law enforcement also need funding. In some respects, the court systems, prosecutor’s offices, and public defenders are already working at maximum capacity. But somehow, we will have to find a way for courts to observe not only that defendants’ rights are protected in court and at trial, but also in their lawyer’s offices, on the phone or email, when plea discussions are going on.

The added protection for defendants is undoubtedly the right thing to do, and now it is the law. The accused person must have a competent lawyer who communicates with them throughout the process. A person accused of a crime is entitled to that at a bare minimum. How we are going to monitor that will be the question our courts wrestle with in the years to come.

Stan Glisson is an attorney in Bremerton with the firm Glisson, Witt and Altman. Their firm mainly handles DUI and misdemeanor defense, as well as felony defense and civil cases. Glisson earned his law degree at the University of Washington, has worked as a Kitsap County deputy prosecutor, and as a Kitsap and Snohomish defense attorney before entering private practice.

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