Extreme Heat is Not Fire

United States v. Thompson, No. 11-50081 2013 WL 4574398 (9th Cir. Aug. 29, 2013) Who says lawyers are not creative? Prosecutors find ways to fit square pegs into round holes. Defense attorneys find ways to label a round peg a square. In this case, the defense called a square a square.  Defendants Clinton Thompson, Tavrion Dawson, and Samuel Eton were convicted of bank larceny.  18 U.S.C. § 844(h)(1) imposes a mandatory ten-year consecutive sentence on anyone who “uses fire… to commit ... [Continue Reading]

Ninth Circuit Holds Obstruction Does Not Apply To FBI Investigations

United States v. Ermoian, No. 11-10124, 2013 WL  4082072 (9th Cir. August 14, 2013) Obstruction of Justice, the catch all crime, has been overused by both the federal and state governments.  When a person is “obviously guilty” or asking questions the police do not wish to answer, they hand out Obstruction charges like candy. In this interesting case – in which the court admitted sounds like an episode of Sons of Anarchy – the court concluded that an FBI investigation does not qualify ... [Continue Reading]

Ishikawa vs. Slippery Slope: Will the Court Create A Higher Standard for Redaction and Sealing To Deter Future Petitioners?

Background Seattle Times Co. v. Ishikawa, 640 P.2d 716 (Wash. 1982) is the leading authority on when records may be sealed or redacted.  Article 1 section 10 of the Washington Constitution, requires a presumption of openness in all court proceedings. This includes records of court proceedings. See Id.  In Ishikawa, the Court laid out the following 5 part test to determine whether the closure is justified: 1.      The proponent of closure and/or sealing must show a specific need for ... [Continue Reading]

Court Shows Deference to Defense Strategy

Originally Posted June 24, 2013 State v. Coristine, 300 P.3d 400 (Wash. 2013) Coristine was charged with rape in the second degree.  His sole defense was that the state failed to prove its case. At the end of the trial, the State added the “reasonable belief” instruction RCW 9A.44.030.  That instruction provides, the defendant must prove by a preponderance of the evidence that the defendant reasonably believed that the victim was not mentally incapacitated and/or physically ... [Continue Reading]

Will Washington adopt a de minimis standard for a violation of the right to public trial?

In 1995, the WA Supreme Court held that “the public trial right operates as an essential cog in the constitutional design of fair trial safeguards.” State v. Bone-Club, 906 P.2d 325, 328 (Wa. 1995).  Because this right is so essential, any courtroom closure must comport with the following five factors: 1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused's right to a fair trial, the ... [Continue Reading]

When has a defendant invoked?

After Davis v. United States, 512 U.S. 452 (1994) (holding an invocation of the right to counsel must be unambiguous), only Delaware, Hawaii, New Jersey and Texas have declined to follow the federal ruling, holding that their constitutions provide more protection. Delaware held that its decision to afford more protection also applies to the right to remain silent. Draper v. State, 49 A.3d 807, 810 (Del. 2002). New Jersey clarified after Berghuis v. Thompkins, 130 S.Ct. 2250 (2010)(holding ... [Continue Reading]