Category Archives: Law in Focus

Bremerton, shuck all the peanuts you want (it’s not actually illegal)

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“Everything that anyone ever posted to the Internet is true.”

Said no one, ever.

Yes, we all know inaccuracies litter the information superhighway. But one of the World Wide Web’s most inaccurate rumors about Bremerton is that it is against the law to shuck peanuts on city streets. We see it pop up on social media sites every few weeks, and it is proclaimed to be accurate on several websites pertaining to “dumb laws.”

Bottom line: There is no truth to it whatsoever.

After seeing it so many times, I decided to investigate the city’s code in an effort to determine its veracity.

Nothing there I could find.

I checked with Mark Koontz, Bremerton’s assistant city attorney, who agreed that there is just no such thing on the books.

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Source: dumblaws.com

“There’s no truth to that,” he said.

If you shuck your peanuts onto the city street, that could be considered littering, Koontz added.

But that would apply to anywhere with a littering code. And the websites are quite specific: you shall not shuck peanuts on the streets of our fine city.

Perhaps it had been a law in the past, only to be repealed?

I consulted Bill Broughton, prominent area lawyer and one time the city’s attorney in the 1980s. He’d never heard of such a thing.

“That’s a new one on me,” he said. “We did set a goal of repealing antiquated laws when I was there but I do not remember this one.”

I turned to Russell Warren, one of Bremerton’s sharpest minds when it comes to area history. He hadn’t heard of it either.

I even emailed some of the purveyors of websites which purport the law to be the truth.

I heard back from one — Andy Powell at dumblaws.com — who said he was looking into the source. Other web sites never responded.

So far, I have been unable to find a single source of the perceived law. My hope is to debunk it officially. So I humbly ask for your help, dear readers, on this journey.

I would love to hear from any of you who knows where it may have come from. Drop a line below, or send me an email at jfarley@kitsapsun.com.

One of the most intriguing parts of the mystery is the idea peanuts would be singled out as unlawful to shuck. Perhaps an odd vendetta against the bean by an anti-peanut former mayor?

Regardless, I stand firm in the belief the law is hogwash.

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Walgren recalls time when lawmakers had perk with cops

07 sample license with heart

Rachel Pritchett’s Sunday piece about the rise and fall of lawyer and former lawmaker Gordon Walgren is filled with fascinating tales from the capitol rotunda. 

Yes, there was Gamscam, that brought Walgren crashing down. But another tale, in particular, raised my eyebrow. From her story:

“The chief of the Washington State Patrol routinely gave leaders — including Walgren — stacks of small plastic sleeves with “legislator” stamped for lawmakers to slide over their driver’s licenses, should they be stopped. The practice worked fine, for a while. But an unimpressed Eastern Washington trooper ticketed one anyway, the press picked up on it, and the questionable practice was abandoned.”

I called Walgren Tuesday to ask him about it. He said the sleeves had “LEGISLATOR” written in red, diagonally across the sleeve, about a half-inch in size.

He said he always felt the idea was a free pass to get out of speeding tickets, but nothing more serious than that.

But, as Pritchett pointed out in the story, the practice ended with one ticket in Eastern Washington.

“And that was the end of the program,” he said.

Interestingly, just weeks before, I had gotten a Facebook inquiry from a local reader  about this practice after we ran a story about the Department of Licensing’s operation of a secret fictitious licensing program. It got me curious to the point that fellow reporter Ed Friedrich and I made a couple calls.

I spoke with State Sen. Tim Sheldon, D-Potlatch, who said he had no such thing, never has. Friedrich asked Christine Rolfes, D-Bainbridge Island, if she and other lawmakers had “LEGISLATOR” written on her driver’s license.

“I can’t even imagine anything so awful,” she responded. “Not true.”

So today’s lawmakers have no such thing. But the ones of yesteryear appear to have gotten a perk that lasted at least a few years, until an Eastern Washington police officer did the right thing.

 

 

 

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Prosecutors’ ‘special inquiry’ power used often in Kitsap County

Did you know that our state’s prosecutors have the power to access private information — bank accounts and cellphone logs for instance — without any record of doing so ever being made public?

I sure didn’t. But as it turns out, the “Statewide Special Inquiry Judge Act,” has been around for more than 30 years. Last week, it was chronicled in a story by Associated Press Reporter Gene Johnson, where I learned about it.

Essentially, “special inquiry” proceedings give prosecutors a way to bring potential evidence before a judge for review, as investigators probe whether there is probable cause to charge someone with a crime.

It’s kind of like the process for obtaining a search warrant, but, as Johnson points out in the story, it doesn’t require sworn statements “or a finding of probable cause that a crime has been committed.” Furthermore, search warrants generally become a matter of public record — but special inquiry proceedings rarely, if ever, do (Johnson’s story points out one instance where they have).

After reading his story, I called Kitsap County Prosecutor Russ Hauge to find out if the special inquiry process was used here. I had noticed, in my years as courts reporter, the phrase “special inquiry” written on charging documents but never knew what it meant.

Hauge told me that the “special inquiry” use is not uncommon in Kitsap. He said that at any given time, there are 10 or so pending, mainly to seek financial records.

He said that while the process is a secret, it is overseen by a judge, and, if prosecutors find no evidence of wrongdoing, nothing goes public — and thus there’s no risk to the reputation of the person investigated.

“If no criminal charges are ever filed, the information remains under seal,” Hauge said.

Judges can also hear from frightened witnesses who are guaranteed immunity and whose testimony also remains secret. In rare cases in Kitsap, a witness is called to testify in one, Hauge said.

But there is some controversy. From Johnson’s story:

Prosecutors who use them say the proceedings are authorized by state law, make for more efficient investigations and have plenty of judicial oversight, but (a lawyer contesting the process) and other defense attorneys say they raise questions about privacy, accountability and the open administration of justice.

Hauge said the proceedings are based in the grand jury system, but — as authorized by lawmakers in 1971 — without the grand jury. There is judicial oversight and “It maintains all of the protections,” given to its witnesses and potential targets.

And where did the idea for these proceedings come from? Organized crime, as it turns out. From Johnson’s story:

The special inquiry law was a response to a corruption scandal involving the Seattle police, including the former chief, and the former King County prosecutor. When Chris Bayley was elected King County prosecutor, he organized a grand jury to investigate.

Dave Boerner, a semi-retired Seattle University criminal law professor, was a deputy King County prosecutor then. He recalled that the grand jury was cumbersome, slow and expensive, and he joined his boss in urging lawmakers to adopt a new type of proceeding — the special inquiries.

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UPDATE: The $1 Florida felony — could it happen here?

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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Red light cameras: ‘A local tax on law-breakers?’

Are red light cameras simply a way to levy a tax on people who break the law? 

Douglas Berman, a law professor at The Ohio State University, stakes this claim on his blog.

More than 500 cities — including Bremerton — in 25 states now use them, according to the National Coalition for Safer Roads. Critics argue that governments are just using them to make money, they’re a sign of Big Brother and they don’t improve safety.

But here’s Berman’s take:

“Assuming the data reported here on lives saved is accurate (a big if), I am inclined to be a vocal advocate for greater use of red-light cameras.  Indeed, as long as these cameras do not increase traffic accidents, I still favor a policy that raises revenue through what is essentially a local tax on law-breakers.

Especially if monies collected from traffic violations properly recorded by red-light camera are used on other public safety fronts, these cameras seem to me to be a win-win for all fans of utilitarian approaches to crime and punishment.  Or, dear readers, am I missing something important in this roadway safety cost/benefit analysis?”

I suggest you check out the comments section to see some interesting dialogue.

My colleague Steven Gardner posted the stats of Bremerton’s revenue from red light tickets on the Kitsap Caucus blog. Here are the numbers:

In 2010 Bremerton took in $685,232 in revenue for red-light cameras. The money sent to Redflex Inc, the Arizona company that runs the system, was $443,639. That gets us $241,593 for the year. In 2009 Andy Parks, former financial services director, said it cost the city about $7,500 a month in staff time to run the program. I can only assume now that the figure came from paying for the officers to look at the ticket and estimating the extra cost it takes to run each infraction through the municipal court system. That’s $90,000 a year. So if that accounts for all the city takes in, the annual net income for Bremerton in 2010 would have been $151,593.

The cameras do seem to improve safety at intersections that have them, according to The Insurance Industry for Highway Safety. From a Pittsburgh Post-Gazette article Berman cited, “a study showed a 24 percent decline in fatalities from red-light running in cities where the cameras are used, and reductions of 40 to 96 percent in violations.  It has estimated that 150 lives were saved over five years in the 14 biggest cities that use them.”

I fully realize this is a debate that goes on and on (and on and on). But Berman’s argument — that red light cameras are a law breaker’s tax deserves attention in its own right. Anyone find merit in it?

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‘Problem Solving’ Courts: America’s Answer to its Law and (Dis) Order?

For a few days at the end of January, I got to go to New York City for the sixth annual Harry Frank Guggenheim Symposium on Crime in America. It was an honor to represent the Kitsap Sun and the good news is it gave me lots of new ideas for how to better cover criminal justice in our area.

This year’s theme was “Law and Disorder: Facing the Legal and Economic Challenges to American Criminal Justice.”

I was among 26 journalists from around the country that submitted a project and was awarded a chance to come to New York to hear from some of the most accomplished judges, prosecutors, police, corrections officials in the nation.

One of the best speakers was the symposium’s first: Jonathan Lippman, chief judge of the New York state court of appeals. Lippman has done much work promoting “problem solving” courts. I immediately thought of Kitsap County’s drug court.

I wonder if Lippman would say we could go further in this arena.

There are more than 180 drug courts in New York and he said 57,000 offenders have gone through them, giving those a chance to “get clean and avoid jail and prison,” he said.

Lippman said problem solving courts, which include domestic violence and veterans courts, have saved the state two million days of incarceration. For more about his discussion, click here.

I’ll blog about other experiences from New York that have stuck with me in the coming weeks and months.

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LIVE BLOG: Opening Arguments in the Mustard Murder Trial

CASE BACKGROUND: A 19-year-old South Kitsap man goes on trial today for the aggravated murder of 87-year-old Ruby Andrews in April 2009, following almost two weeks of jury selection.

Opening arguments are slated in the case of Daniel James Mustard this morning.

Mustard, 17 at the time of the incident, is accused of stabbing and robbing Andrews in her Colchester home on April 5, 2009. He is being tried as an adult.

The case hinges on Mustard’s mental state at the time of the offense.

Prosecutors are slated to argue that Mustard knew right from wrong when he killed Andrews. But Bryan Hershman, Mustard’s attorney, will attempt to sway jurors that Mustard was either insane or had “diminished capacity” — that he couldn’t fully comprehend his actions — at the time of the killing.

The Kitsap Sun will carry a live blog of the opening arguments when they begin at 10:30 a.m. this morning.

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Initiatives Around the Nation Worth Watching

Washington is home to arguably the most policy-changing ballot initiatives this year than any other state. Who else is voting on privatizing labor insurance and liquor, or repealing candy and bottled water taxes while also looking at an income tax?

I wanted to give readers here at the crime and justice blog an idea of some of the initiatives I’ll be watching in other states as the results come in tonight:

Here’s the others around the country I’ll be watching:

Proposition 19 (California): would legalize and tax marijuana, which would open up a wider legal civil war between states and the federal government, which still classifies weed as a Schedule I drug;

California also has two initiatives that simultaneously would a) let an independent commission redraw congressional districts when necessary and b) abolish that same commission from doing its current work (redrawing state legislative districts).

California also has a chance to repeal its requirement that both their own house and senate must pass a budget by a super-majority. Only three states do this.

Finally, in California, there’s an initiative to repeal the legislature and Governor Arnold Schwarzenegger’s so-called cap and trade program to bring California’s carbon emissions to 1990 levels by 2020. The initiative would restrict that law unless unemployment got below 5.5 percent (it’s at 12% right now).

Massachusetts’ question 3 would have that state’s sales tax from 6.25 to 3 percent.

South Dakota referred law 12 would institute a statewide smoking ban like the one Washington pioneered in 2005.

Ballot measure 74 (Ore.) would greatly expand the ability of state’s residents to form dispensaries to sell medical marijuana to qualifying patients, and the state to regulate them.

And finally, there is Oklahoma, with a barrage of initiatives, including: making English the “unifying” language of the state, requiring voters to show their immigration papers, mandating spending a certain percentage of the state budget on education, and, especially of note:

Question 755: banning the use in the courts of Islamic Sharia law– in a state with only 15,000 Muslims.

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Jury Selection: A Courts Reporter Reflects

I sought the help from fellow journalists in researching a story about social media and its affect on the courts.

I was lucky enough to hear back from John Painter, Jr., a retired Oregonian courts reporter (and, as no one is immune from the process, a seven-time potential juror), who offered me these thoughts on jury selection, the process some lawyers call “pick ’em and stick ’em.”

“In my experience as a juror, during voire dire I was bumped from every case but one (both sides had run out of challenges) solely because as a court reporter I knew too much about trials and the trial tactics of both sides.

In my experience as both juror and journalist, I came to several conclusions:

(1) Jurors being questioned routinely lie about their positions on issues they think could get them bumped;

(2) lawyers on both sides harbor deep-seated prejudices about who would make a good and bad juror and the common rationales for bumping certain types of jurors are mostly without real-world foundation, but “blogging” news web sites is a red flag;

(3) lawyers involved in criminal litigation invariably will disqualify any potential jurors with any link to any media (and in this day and age that includes anything dealing with the web);

(4) no expert worth his/her salt can tell you anything substantive about who would be a good or bad juror; humans are just too complicated.”

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Self Defense ‘A Tricky Thing’

A fatal shooting over the weekend has generated much discussion on our web site’s comment threads about when self defense is appropriate under the law. Here’s one opinion, from commenter robodrill:

“yes. washingtonians are allowed to shoot fleeing attackers.
if the guy’s story is true, he is innocent.”

I thought it’d be good to consult a lawyer who knows first hand how self defense works in court. Here to give us his analysis — free of any scrutinizing of the current case — is frequent Crime and Justice blog contributor and Bremerton attorney Stan Glisson:

“The statute (9A.16.020) tells us that force is not unlawful “Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary”.
Homicide, specifically, is justified in the eyes of the law when committed either:

(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is. (9A.16.050).

Anyone accused of an assault-type crime can assert that it was done in defense of themselves, of others, or of their property.  Once the defendant raises self defense, the burden shifts to the state to disprove it; in other words, lack of self defense becomes an element the state has to prove. In general, there is no duty to retreat. The defendant can resort to use of force in self defense as long as the defendant had a legal right to be in the place where force was used.  Also, a defendant cannot claim self defense if the defendant created the situation that cause the need for defense. In other words, a person can’t provoke a fight, then claim he or she needed to use force in self defense.
Self defense is a complete defense because it negates the element of intent.  It is a dangerous defense, because the accused basically waives any defense that they didn’t commit the crime: instead, they are arguing that it was justified. You can’t simultaneously argue ‘I didn’t do it’ and ‘I only did it because..’
If a defendant succeeds in presenting self defense, it is possible to recover from the charging entity (state or city) all costs they incurred as a result of the charge. That can be attorney’s fees, lost wages, etc. Basically the jury has said that what they did was permissible, so they should not have had to incur those costs.
The fear of injury justifying self defense is evaluated in terms of the subjective experience of the defendant.  The court must instruct the jury to evaluate the claim of self defense in light of all the circumstances known to the defendant.  Jurors are instructed to place themselves in the defendant’s shoes at the time of the alleged crime, considering what he was experiencing and what was known to him about the victim at the time. So, if there is past knowledge that makes the shooter’s decision more or less understandable, the jury is entitled to hear about that. That can result in the trial being a lot more about the prior history of the victim than would normally be allowed in a trial.
Self defense is a tricky thing. The defendant needs to have ‘clean hands’ for the jury to sympathize with his or her position. They have to relate to why he or she felt that there was no other reasonable option. And the more force was used, the more the jury has to agree with that decision. The defendant’s testimony is very important, as is the perception of the seriousness of the danger they were facing.”

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