LEGISLATION CLEMENCY LANGUAGE. May, 2012 Volume 26 No. 2

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1 LEGISLATION CLEMENCY LANGUAGE W A S H I N G T O N C R I M I N A L May, 2012 Volume 26 No. 2

2 Editor Teresa Mathis Associate Editor Christie Hedman COPY EDITOR Fred Rice Editorial Committee Anne Daly, Maggie Smith Evansen, Todd Harms, Tery Mulligan, Fernanda Torres, Keith Tyne Design Fred Rice ILLUSTRATIONS Steve Konz Features W A S H I N G T O N C R I M I N A L Washington Association of Criminal Defense Lawyers Teresa Mathis, Executive Director 1511 Third Avenue, Suite 503 Seattle, WA Officers Anna Tolin, President Kim Gordon, President Elect Brian Roach, Vice President/East Doug Hyldahl, Vice President/West Wade Samuelson, Secretary Briteney Mercer, Treasurer Bob Quillian, Immediate Past President Board of Governors Edwin Aralica, Chris Black, John Brangwin Geoff Burg, Robert Butler, Sylvia Cornish Lou Frantz, Robyn Friedman, James Kirkham Cassandra Lopez de Arriaga, Scott Mason, Jon McMullen, Kailey Moran, Amy Muth Robert Perez, Jonathan Rands, Damon Shadid John Sinclair, Phillip Thornton, Fernanda Torres Tom Weaver, Scott Wonder, Jon Zulauf Washington Defender Association Christie Hedman, Executive Director 110 Prefontaine Place South, Suite 610 Seattle, WA OFFICERS Eileen Farley, President Kevin Curtis, President Elect John Rodgers, Vice President East Mike Kawamura, Vice President West Jodi Backlund, Secretary Jeremy Ford, Treasurer Dan Fessler, Immediate Past President BOARD OF DIRECTORS Anne Daly, Rachel Forde, Harry Gasnick, Robert Jimerson, Jon Komorowski, Linda Lillevik, Greg Link, Dan McGreevy, Floris Mikkelsen, Dennis Morgan, Terry Mulligan, Jon Ostlund, Les Tolzin, Keith Tyne Washington Criminal Defense is published four times a year. We welcome contributions from our members. For information about submitting articles contact Teresa Mathis, For advertising information, contact Fred Rice, The Language Gap p by Nicole Dalton 3 Navigating language issues when defending clients facing criminal charges. Last Hope p by Maureen Devlin 8 A guide to seeking executive clemency or pardon in Washington State. Legislative Report p by Bob CoopeR 13 Christie Hedman & Teresa Mathis Agreement on public defense funding; nonconviction data bill to be interim project for legislature. New Bills p by Kallie Ferguson and Christie Hedman 16 Criminal-law related legislation passed in Domestic Violence p by Travis Stearns 17 DWLS 3 p by Travis SteArns 18 Bail Task Force Update p by Amy Muth 20 Child Porn Cases p by Amy Muth Cases p by Christie Hedman 22 Addressing sexually violent predator civil commitment cases. Impaired Driving Legislation p by Patricia Fulton 24 Addressing sexually violent predator civil commitment cases. Competency to Stand Trial p by Christie Hedman 26 Changes to the process to determine competency to stand trial. Columns Briefs 29 WACDL News, In Memorium, CLE Calendar Views and opinions expressed in articles published are the authors and are not attributed to the Washington Association of Criminal Defense Lawyers, the Washington Defender Association, their editors, or members unless expressly stated. Authors are solely responsible for the accuracy of all citations and quotations.

3 The Language Gap Navigating language issues when defending clients facing criminal charges. BY Nicole Dalton In 2006, the New York Times reported that the number of immigrants living in U.S. households rose sixteen percent over the previous five years. 1 U.S. Census data shows that in 2007 nearly 55.5 million people spoke a language other than English at home. 2 More immigrants are showing up all over the country and in communities where little or no immigrant population previously existed. 3 This means that attorneys representing those facing criminal charges will likely encounter more and more limited English or non-english speakers in the context of their law practice. For discussion purposes, I will call these clients LE clients, for Limited English. Communication difficulties often arise when two people who speak different languages try to talk about important problems. Before graduating from law school and passing the bar, I worked as a legal and court-certified interpreter in the Spanish language for nearly ten years. Having been responsible for bridging the communication gap between many lawyers and their clients, I was able to observe and work through many complications in facilitating legal conversations and presenting cases to juries. As a lawyer, I often work with LE clients and have frequently looked at potential defenses rooted in language problems. Language issues constitute additional challenges that must be dealt with appropriately if we are to provide adequate and effective representation to the LE clients we represent. Although the law and court practices relating to language barriers have evolved somewhat slowly, as lawyers we can push to improve the status quo by facilitating better recognition of the problems created by language barriers. Based on my experiences, I don t think we can ever place LE clients on exactly the same footing as an English-speaking client. However, we can strive to achieve the best level of communication possible, advocate for giving the linguistically marginalized better access to participation in the justice system, and strive to hold the state responsible for doing the same. Effective Representation Starts with Adequate Communication Ask about your client s background and evaluate his or her communication needs. What language does your client speak and where exactly is she or he from? This question is important because regional linguistic variation can cause difficulties even between speakers of the same language. Although some may refer to these variations as dialects, not all languages have true dialects. Sometimes the differences have more to do with accent, colloquialisms, and regional norms of expression. If you ve ever watched a British movie like Trainspotting, or traveled in the rural South, you may have a feel for how difficult it can be to understand someone speaking your language when the speaker has a very different accent and mode of expression. If you haven t had the experience, I urge you to try Communication difficulties often arise when two people who speak different languages try to talk about important problems. to watch such a movie and think about how much you are really missing. Since regional variations can make it really hard to understand the speaker, knowing our clients specific region of origin can help us choose a more effective language facilitator. When I was an interpreter, I was often called in to interpret for Cuban litigants because my husband is Cuban and I was very familiar with the accent. I remember more than one Cuban in the courts telling me that they had had great difficulties communicating with the previous interpreter, who was from Mexico or some other country, and they were really happy to have an interpreter who could understand them. There Defense May 2012 p 3

4 were other good options for Cuban litigants; my Columbian, Venezuelan, Dominican, and Puerto Rican colleagues had very little trouble understanding Cuban Spanish. On the other hand, sometimes Mexican, Guatemalan or other Latin American parties would have real difficulties understanding interpreters with mainland Spanish, Cuban, or Argentine accents. Some Spanish speaking countries have similar accents and speech patterns and some are very different and this variation is not necessarily tied to geographic proximity. A sophisticated interpreter may be able to modify his or her native accent and will use a register of speech that most clients will be able to understand. It is important, however, to evaluate whether either the client or the interpreter is having difficulties understanding what the other one says. Regional variation should not necessarily constitute a subjective reflection on the quality of the interpreting, but rather a more objective issue of compatibility. Some languages have true dialects and it s important to find an interpreter who speaks the same dialect as the client. Although Spanish does not have linguistic dialects, we frequently encounter non-native Spanish speakers from Mexico and Central America whose native tongue is an indigenous language. Sometimes they speak Spanish well enough to proceed with a Spanish interpreter and sometimes an indigenous language interpreter should be sought. At least one extremely high profile case has brought this issue to light in the legal community: Santiago Ventura Morales was a farmworker who was wrongly convicted of murder in Oregon in 1986, largely because nobody including the court interpreter recognized that he and many of the witnesses spoke Mixteco and their Spanish language skills were limited. 4 He was thus unable to participate effectively in his defense. The conviction was overturned eventually but serves as an important reminder that we need to remember to carefully interview clients about their native language and their abilities in their second or third languages. Education and cultural norms can also interfere with attorney/client communication. Sometimes getting more information from the client is a challenge. Limited education can also compromise understanding. As English speakers, 4 p Defense May 2012

5 we can usually tell without much effort when our English-speaking clients lack education or even intellect. However, when the communications go through an interpreter or are carried out in broken English, the subtleties that allow us to make these calls are often lost. Since many basic assumptions can break down with persons from a different culture, getting more specific information from your client will make it easier to decide how you frame the information you provide and how you use the information you are given. Cultural values or assumptions can also cause confusion about client intentions and communications. The cultural practice of showing deference towards perceived authority figures can interfere with an attorney s ability to obtain accurate information about what the client understands and can interfere with your ability to know what the client really wants. You may, for example, be perceived as an authority figure or you could be distrusted because you re perceived as a government official, depending on the background and cultural experience of your client. Obviously, English-speaking clients may have the same issues, but it is usually a lot easier for us to interpret the signals and understand that this is what s going on. These kinds of attitudes may cause the client to hide facts or opinions from counsel, or the client may be extremely deferential or agreeable when, in fact, the client is angry and does not agree with the state s version of facts or his or her lawyer s assessment of the situation. When I was an interpreter, there were many occasions when the lawyer would talk with the client at length, make recommendations, and obtain A sophisticated interpreter may be able to modify his or her native accent and will use a register of speech that most clients will be able to understand. the client s apparent agreement to a plea bargain. As soon as the lawyer walked away to get some paperwork, however, the client would turn to the interpreter and say something like, what was that all about or I didn t do anything wrong, let me tell you what happened. Usually this would happen when the lawyer just talked and looked for yes or no responses or nods of agreement. If you keep getting answers like, whatever you think is best, ma am, work with the interpreter to get the client talking. Asking the client to repeat back her or his understanding of options and give an independent narrative of what happened (rather than just a reaction to what the police reports say) can help avoid this kind of problem. Get the client to explain to you the options in his or her own words and tell you what the client thinks about those options. The reality is that it takes more time, and it s not easy. If you don t work at it, however, you might be more of a steamroller than an effective advocate. Explain the system in basic terms. Always remember that your client has probably never seen Perry Mason, Matlock, or Law and Order on television in a language she or he can understand. We usually assume our native-english clients have a pretty good understanding of the justice system and that they know the difference between a prosecutor and a defense attorney and a judge and the difference between a trial and a plea bargain. Because systems of justice and civics education vary greatly throughout the world, we can t assume our LE clients know anything about any justice system. This means you will need to break it down into understandable terms. In most cases with LE clients, you will need to explain what a trial is and what a plea bargain is, in very basic terms. If you keep getting answers like, whatever you think is best, ma am, work with the interpreter to get the client talking. I try to give a full explanation from the bottom up, starting with explaining what a prosecutor is, what a judge in the United States is and does, what a jury is, who the people on the jury will be and what they will do and how they will make their decision. It takes some time to provide a meaningful explanation. If you are really pressed for time, sometimes a bilingual assistant or investigator can give explanations that you have approved so that the client will be better prepared once he or she meets with you. Defense May 2012 p 5

6 A lawyer should always make sure the client understands the difference between the options presented, including what each course of action really means. Otherwise, it s sort of like me asking you whether you would prefer to hang out with a sandungera or a guaricandilla, 5 notwithstanding the fact that choosing between the options I have presented to you would have very little impact on your life, your wellbeing, or your freedom. I used those terms because I have a culturally enriched sense of the meaning of those two words. Both conjure images and experiential information for a person with the right background. Even if you can speak some Spanish, you probably don t imagine or feel anything when you hear those words. Without any experiential background or information to complete the picture, your client might be engaging in pure speculation when the interpreter translates, so do you want to take the offer or do you want to fight the charge? Remember that the interpreter s job is to find the closest, sometimes most efficient equivalent to the meaning of the words you use, but the interpreter is trained to avoid providing any explanations. Most legal terms are loaded terms with no exact equivalent in the target language because the terms are words used to quickly describe complicated, culturally specific concepts and actions. Choosing your interpreter. When you go to choose an interpreter, keep regional and language issues in mind. Interview your interpreters to find out where they are from and monitor the quality of communication. One Chinese language interpreter, for example, may be perfect for one client but a poor choice for another because of region or dialect. Even professional interpreters sometimes minimize the issue of incompatibility because they want the work. It s sometimes difficult to know whether you have a wonderful, sophisticated interpreter who is really easy for your client to understand, or whether you have someone who is adept at making it seem like everything is fine. Many clients won t speak up when they have difficulties with the interpreter. If you have bilingual staff who can be around or colleagues who speak the language, ask for feedback about different interpreters. Try using a client s bilingual family member to schedule an appointment or a different interpreter in the courtroom for a brief conversation and ask the client if she or he thinks the interpreter you are using is doing a good job and if the client feels like she or he is understanding everything. Just like attorneys with a bar number, interpreter court-certification only indicates a basic level of competency. Sometimes it just doesn t work out with a particular interpreter. Identifying and Using Language Issues to the Benefit of Your Client When LE clients are accused of crimes, the state will have tried to communicate with the client in some way that generates evidence in the majority of case. Whether the communications were Miranda warnings, SFST instructions, implied consent warnings, search consents, confessions or some other communications, the state s choices in overcoming or ignoring the language barrier may create issues that can be used in your client s favor. Few recent cases exist in Washington showing a detailed and aggressive approach to handling pre-trial language issues. In State v. Morales, 173 Wn.2d 560, (2012), however, the supreme court overturned convictions on several charges where trial and appellate counsel effectively litigated the state s failure to present sufficient evidence that the defendant was given required implied consent warnings, including his right to an A poor command of the subjunctive mood in the Spanish language can lead to serious misunderstandings. independent blood test. Ultimately, hearsay arguments prevailed in the question of admissibility, but the court did produce some troubling dicta about the lower court not having done an ER 104 analysis. Preliminary questions of admissibility of interpreted statements, however, are not always vulnerable to ER 104 arguments. When interpretations by police officers or interpreters produce evidence, defense counsel should look closely at whether the interpreter used is even qualified. Interpreters may misstate or misunderstand their own qualifications. Although some kind of agency qualification may have been issued to an individual with foreign language skills, the qualification is not a guarantee that the person is capable of rendering a complete and accurate interpretation. There is often a significant difference between the interpreting ability of a person with conversational Spanish abilities and a trained and qualified legal interpreter. A poor command of the subjunctive mood in the Spanish language can lead to serious misunderstandings. The subjunctive mood expresses doubt or 6 p Defense May 2012

7 opinion by simply changing the tense and can move a phrase from the realm of reality into non-reality. By bringing a language expert along during interviews with police interpreters, the defense can evaluate whether there are any problems with the qualifications of the police interpreter. In one case, we asked the police interpreter to interpret some phrases on the fly to test the person s abilities. Mistakes were made, the interpreter became flustered and proceeded to attack his own qualifications, saying things like, he wasn t really a trained interpreter and if the police needed a real interpreter they could call the language line. This was very helpful in giving us a basis to discredit and attack the proffered confession. In another recent case where a language line interpreter had interpreted for a 911 caller, significant problems in the interpretation became apparent. Although the police interpreter was fluent in Spanish, she embellished what was being said and suggestively questioned the caller when she had difficulties understanding. The police interpreter, who was not identified and was not available for trial (Crawford) also misinterpreted some of the things said by the caller. By hiring an expert, court-certified interpreter to review the tape, the defense may be able to discover serious holes in the prosecution s proffered evidence. In that particular case, the prosecution ended up obtaining a court -certified interpreter to do a written transcription and translation of the Spanish language 911 call. The prosecution had their expert simply omit the interpretation into English as well as the questions posed by the 911 interpreter. The questions were relevant, however, and we believed that they affected the caller s version of events. We had our expert with our own translation laying in wait to impeach the prosecutor s version of the call. In the end, the issue was resolved because the prosecutor made the mistake of using one of the interpreters who interpreted for trial as their expert translator. This created a conflict of interest for the interpreter that could not be remedied and the prosecutor was then unable to offer the interpreter as an expert witness proffering her written translation. Although that particular sequence of events may be unusual, it is illustrative of the kinds of complicated issues that arise with non-english communications and the lack of sophistication with which many prosecutors approach the language issues. During trial, it can be extremely helpful to enlist the help of a defense table interpreter to point out errors in interpretation that may be made by Notes 1. Rick Lyman, Census Shows Growth of Immigrants, New York Times, August 15, com/2006/08/15/us/15census. html?pagewanted=print. 2. Hyon B. Shin and Robert A. Kominski, Language Use in the United States: 2007, U.S. Census Bureau. Washington, DC, April census.gov/hhes/socdemo/language/data/acs/acs-12.pdf. 3. See Footnote See 31 B.C. Third World L.J. 163; and january_february_2001_3.html. 5. These are slang phrases and they are culturally loaded. Although the distinction between the translated equivalent of jury trial and a plea bargain might not be quite so completely incomprehensible as these untranslated phrases might be for you, your client is unlikely to have the life and cultural experience to give her a full understanding of what those two options really mean without your careful the court interpreter, interpreting for witnesses. With certified languages, it is less likely that grave errors will be made, but it may well be worth the trouble of documenting any errors perceived to create a thorough record. Generally speaking, cases that reach the level of appellate courts often lack the kind of specific record that could allow the defense to prevail on language problems. 6 Defense counsel, monolingual or otherwise, may be able to do substantial damage to the state s case based on language problems. The key is enlisting a competent language expert to help scrutinize the evidence and analyze potential issues. Nicole T. Dalton is in private practice in Vancouver, WA; she is a graduate of the Lewis and Clark School of Law in Portland, Oregon. explanation. (If you speak enough Spanish to know the meaning of the two words I used, then you might not need any of this advice.) 6. See i.e. State v. Lakilado, 2012 Wash. App. LEXIS 681 (2012) (Claim of incompetent interpreter denied because of lack of record.); State v. Biel, 2012 Wash. App. LEXIS 518 (2012) ( because Biel demonstrates neither incompetent interpreters nor a violation of his right to confront witnesses, we affirm his judgment and sentence. ); State v. Guzman, 2012 Wash. App. LEXIS 332 (2012); ( Mr. Rodriguez Guzman s assertions that his plea was involuntary because he was afraid of the judge, he felt pressured, and that the interpreter was talking too fast and too quietly for him to fully understand the proceedings do not rebut the voluntariness of his plea clearly demonstrated by the record. Accordingly, we find no manifest injustice and conclude the trial court did not abuse its discretion in denying Mr. Rodriguez Guzman s motion to withdraw his plea. ) Defense May 2012 p

8 Last Hope A guide to seeking executive clemency or pardon in Washington State. BY Maureen Devlin Not all remedies are judicial. In some situations where judicial remedies have been exhausted, you might consider advising your client to file a petition for clemency or pardon under RCW 9.94A.728 and RCW 9.94A.885. Despair can run deep among the criminally convicted and their loved ones, especially when appeals and post-conviction proceedings have proven unsuccessful. The clemency process can provide a bit of hope that there may be a possibility however slim of another form of relief, and may be what keeps that person going. The Policy Behind Clemency There has been some controversy regarding the very notion of executive clemency. After all, the power essentially allows the executive branch to override both the judicial and legislative branches. Nonetheless, executive clemency is a time-honored tradition in the federal government as well as in every state. In Washington, the power is rooted in Article III, section 9 of the Washington State Constitution. In an article on the history of clemency (Chicago Tribune, December 4, 2002) Daniel Kobil, professor at Capital University Law School, argues that the purpose of clemency is to provide a meaningful check on courts and legislatures. As the United States Supreme Court eloquently stated 90 years ago in Ex Parte Grossman, 267 U.S. 87, (1925): The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To offer a remedy, it has always been thought essential in popular governments as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. The Nuts and Bolts of Clemency What is clemency? In Washington State, requesting clem- 1: ency can mean that you are asking for one of two things: a commutation of the petitioner s sentences by some period of time; or a full or conditional pardon of the petitioner s crime(s). 1 What are the grounds for 2: seeking clemency? There are virtually no guidelines or law in clemency. The key phrase in RCW 9.94A.885 is extraordinary cases. A petitioner must demonstrate circumstances that are sufficiently extraordi- nary to warrant a lesser sentence or a pardon. Extraordinary circumstances in a commutation request might be that the petitioner has engaged in acts of remarkable good works, that the petitioner has shown pronounced personal change, that the petitioner has the support of the victim or the victim s family, that the petitioner has a serious medical condition requiring special care, or that other circumstances exist demonstrating that the petitioner has been punished enough and is no longer a danger to the community. Executive clemency is a time-honored tradition in the federal government as well as in every state. For a pardon, extraordinary circumstances might be a long period of demonstrated stellar citizenship after release coupled with the desire for an executive pardon when seeking certain kinds of employment, enrolling in particular training or military programs, or dealing with immigration issues. How does the process get 3: started? Petitions and supporting documents are first filed with the Clemency and Pardons Board. The basic forms can be found at asp. All filing now can and should be done electronically. Paper filing is accepted but the materials will then need 8 p Defense May 2012

9 to be scanned by board staff anyway for circulation to the board members, in which case you risk having your artfully arranged presentation messed up or documents taken out of order. The board has a full-time paralegal, who acts as a sort of clerk for filing. The current paralegal is unfailingly gracious and helpful. She knows more about the clemency process than the rest of us combined, and anyone new to the world of clemency would be well-advised to maintain a respectful and courteous relationship. What forms and other 4: documents need to be filed? The basic petition form seems simple enough, but there are a few pitfalls to avoid. The major pitfall concerns prior offenses. Previous versions of the petition required the petitioner to list only all convictions. The current version, however, asks petitioners if they have ever been arrested, charged, or convicted of any other offense at any other time. The board is not forgiving of petitioners who neglect to note each and every arrest and charge, whether a conviction resulted or not. Once such a mistake is discovered and you should work on the assumption that it will be discovered the rest of the petition will be viewed under a cloud of suspicion. Similarly, the petition asks if the petitioner is currently or at any time in the past has been subject to a restraining order. Sometimes petitioners mistakenly believe that this question only refers to restraining orders for the current case. Additionally, the rules require that a copy of the judgment and sentence for which relief is sought be attached to the petition. These are usually simple enough to obtain, but if you wait until the last minute and do not have that copy attached, the petition may not even be read and you may end up causing unnecessary delay in the review of your petition. The form calls for a petitioner s statement and asks specific questions of the petitioner. These include asking the petitioner to fully explain the facts of the crime for which relief is being sought, to describe what extraordinary circumstances might justify relief, to describe the petitioner s rehabilitation efforts since conviction, and to detail the petitioner s prison record (including disciplinary records). It is important that this statement be in the petitioner s own words, but this can be a challenging assignment for many petitioners. Counsel should be prepared to carefully review the statement prior to submission. In addition to the required forms, petitioners are free to submit whatever documentation they feel might be helpful. These might include, if available, evidence of rehabilitation efforts, documentation of educational achievement, psychological evaluations, statements from judges, prosecutors, or legislators, recommendations by employers, teachers, clergy members, and offers of practical support such as housing and employment. Another important requirement is that petitioners attach a signed release of information to the petition. A scanned copy of the original signature is acceptable to meet the filing deadline as part of an electronically-filed petition but the original signed release must also be mailed to the board. The release of information is extraordinarily broad and allows for release of any and all information concerning me, my work record, my reputation, my medical information, my psychological records, my military service records, my criminal history, and my financial status. Putting aside for the moment the question of whether such a sweeping release is even legal, the release raises other concerns. For one thing, It is important that this statement be in the petitioner s own words, but this can be a challenging assignment for many petitioners. as discussed below, all petitions are considered public information once filed. While there is no formal procedure for keeping such sensitive information as medical, psychological, or financial records from becoming part of the public petition, it does appear that the board and the governor make some attempt to keep this information confidential. However, a petitioner may want to specifically request that such information be kept from public view. Who sits on the Clemency 5: and Pardons Board? The board consists of five members appointed by the governor to staggered four-year terms. It is important to know your audience: you should be aware that the board tends to be weighted towards members with prosecutorial or law enforcement experience, but also usually includes a community member and someone with criminal defense experience. The current board consists of: John Turner: Chief of Police for the Defense May 2012 p 9

10 City of Snohomish; retired Chief of Police for the City of Mountlake Terrace; Raul Almeida: Captain of the Hanford Patrol; retired Chief of Police for the City of Mabton; James McDevitt: former US Attorney for the Eastern District Washington; attorney in Spokane; Jennifer Rancourt: Snohomish County Public Defender and Judge Pro Tem for Everett and Marysville Municipal Court; and Cheryl Terry: community member. What happens after a petition 6: is filed? Initial reviews of petitions are performed by two-member subcommittees of the board. If one or both determine that a hearing is warranted, then the matter will be scheduled for a hearing. If neither finds that a hearing is warranted, the petitioner will be notified but no reasons will be given as to why a hearing was not granted. When are hearings held 7: and what are are the filing deadlines for those hearings? The full board meets four times a year in Olympia to conduct hearings. Multiple hearings are conducted on each hearing date. Clemency petitions cannot be granted without a public hearing, per RCW 9.94A885 (3). Hearings are typically scheduled in March, June, September, and December. If you wish to be considered for a particular hearing date, you should keep in mind that the filing deadlines are usually six full months in advance. For example, to be considered for the board s December 2012 meeting date, you must have your petition filed by June 8, The filing deadlines can be found at deadlines.asp. Who else is notified of a 8: pending hearing? If a hearing is granted, the board is required to notify the prosecuting attorney who in turn is required to notify victims (or victims families) and law enforcement. The prosecuting attorney may submit a response to the petition, as may law enforcement and victims. What happens at a hearing? 9: The hearings are relatively informal. Board members are generally very respectful and maintain a courteous atmosphere. Witnesses are not sworn, and there is no trial-like examination of witnesses. Witnesses and supporters can sometimes get tongue-tied and forgetful of what they wanted to say, so advance preparation is important. The hearings are open to the public and are recorded. Most will also be broadcast in their entirety on TVW. Many incarcerated individuals are quite familiar with what goes on at these hearings and regularly watch the TVW hearings. The rules of evidence do not apply. Petitioners are expected but not required to make a statement, and should give that statement careful thought. Board members are free to ask whatever they like of the petitioner, the witnesses, and the lawyers. Sometimes these questions can seem odd to lawyers accustomed to certain courtroom rules. For instance, I was once asked at a hearing whether my client was paying for my services. The board member who asked apparently felt that a petitioner who could afford a lawyer should have been able to pay off more of his restitution. Board members may also ask detailed questions about the underlying facts of the offense. : What happens after a 10 hearing? There is no suspense about what the board will recommend to the governor. Following the hearing, the board deliberates on the record and makes its decision. The real suspense starts once the board forwards its recommendation to the governor. The current governor, Chris Gregoire, has held off on making final decisions for months and, in some cases, years. There are no rules about when the governor must make a decision. There are no appeals of negative decisions. On the bright side, though, petitioners can file new petitions every three years with no limit on the number filed. What is the effect of a 11: pardon? When a pardon is granted, the governor s office will, pursuant to RCW 9.94A.030(11), send a letter to the Washington State Patrol asking that conviction be removed from the criminal history reporting that is available to the public. A pardon does not, however, automatically vacate a criminal conviction. Only the courts can vacate convictions. The rules for vacating convictions are set forth in RCW and RCW 9.94A.640. These statutes do not explicitly address pardons or whether the limitations placed on the types of offense eligible for vacation apply to pardons. Without a vacation of the conviction, a pardoned person may not assert that he or she has never been convicted of a crime. Even with a pardon and a vacation of conviction, certain authorities may be entitled to obtain some non-conviction records. 12: Can previously filed petitions be viewed? Transparency should be paramount in clemency proceedings in order to avoid appearance of backroom deals or improperly motivated decisions. Hearings are open to the public and televised on TVW. Otherwise, though, information is somewhat difficult to 10 p Defense May 2012

11 come by in Washington. It is a cumbersome, hit-or-miss process to get a handle on the kinds of petitions filed and on what happens to those petitions. There is no efficient way to access information about the kinds of petitions filed, especially those that do not receive a hearing. Disposition logs are maintained by the board s paralegal, who will forward these logs upon request, but these logs do not discuss the particulars of any petitions. The governor s office maintains all files and petitions once the board makes its decision but these files are not readily accessible to the public. Upon request, general counsel for the governor will forward thorough summaries prepared by the board for the governor s review but does not generally provide the actual petitions. Lessons Learned from a Review of Petitions Granted General Trends of a Successful Petition Here are some observations that might increase the odds of success on a clemency petition: The board has in the past tended to be somewhat sympathetic to three-strikers whose offenses are not particularly heinous, especially those who were sentenced soon after the persistent offender statute was passed (when prosecutors tended to exercise even less discretion over charging decisions). King County Prosecutor Dan Satterberg supported a spate of such petitions a few years back. The board sometimes shows genuine compassion and understanding for petitioners whose crimes were committed in the throes of addiction and who have demonstrated a track record of sobriety, especially when those petitioners were very young at the time of the offense. The board finds victims (other than domestic violence victims) persuasive when those victims come forward to say they believe the petitioner has been sufficiently punished. Women tend to be viewed more sympathetically than men, especially if they are asking for a pardon when a prior conviction may be hindering them from pursuing a particular career. The board looks favorably upon snitches. If a petitioner has some juicy information that can help frame someone else, the board is more inclined to find that petitioner worthy of relief. I attended one hearing where the petitioner s truthfulness was so questionable that the audience starting exchanging raised eyebrow glances at each other and shaking their heads. Nonetheless, two members of the board found that this petitioner had demonstrated such strong moral character that a commutation was warranted. The governor has not yet ruled on this petition. For pardons, what constitutes extraordinary circumstances varies according to what the underlying offense was; the more serious the offense the more extraordinary the circumstances need to be. The board is impressed when the petitioner can produce a cadre of supporters who vow to offer practi- cal support (a job, housing, health insurance, financial assistance) and emotional support. General Trends of Unsuccessful Petitions There are some things that will generally sink your petition: If the offender has not made a real effort to pay restitution or otherwise make amends, the board will not look kindly on the petition. If an offender even vaguely hints It is a cumbersome, hit-or-miss process to get a handle on the kinds of petitions filed and on what happens to those petitions. that the blame for committing the offense lies somewhere other than solely with the offender, the game is over and the petition will fail. If your client is not going to take full, complete and sole responsibility for what happened, and if your client cannot express sincere remorse for the harm caused, then the petition will likely go nowhere. If the main basis for a petition is that the petitioner has stayed out of major trouble in prison and has taken all the classes DOC offers, the petition is probably not going anywhere. These things are a good start, but are not nearly enough. The board expects all petitioners to have been excellent inmates and to have taken advantage of opportunities for self improvement. Does Anyone Ever Actually Win These? The short answer is yes, but not very often. Granting clemency is not Defense May 2012 p 11

12 politically popular. There is generally not much to be gained politically by a governor granting clemency, and much to be lost. It will be a long time before any governor in this state can think about clemency without also thinking two words: Maurice Clemmons. Governor Gregoire has been stingy with granting sentencing commutations and a little more generous in granting pardons. Although, as discussed above, complete information is not readily available, it appears that Governor Gregoire has thus far granted a mere six petitions for compelling and tragic. Her childhood was fraught with physical abuse, sexual abuse, and serious trauma. At the time of the offenses, Ms. London was severely addicted to drugs. Ms. London had shown herself to be a model, non-aggressive inmate. Most significantly, Ms. London had the support of her sentencing judge who testified before the board that he did not believe at the time of sentencing, and still did not believe that Ms. London deserved to spend her life in prison. King County Prosecutor Dan Satterberg also supported Ms. London s petition. Ms. London also had the good The governor s office does not publish information about the number of petitions that are filed or granted hearings. his felony conviction prevented him from doing so. The Future of Clemency Governor Gregoire leaves office in January She still has many petitions sitting on her desk, awaiting final decision. Perhaps she will have a sudden burst of compassion for these petitioners. Or not. The next governor could be more inclined towards granting petitions. Or less. For many of our clients, once legal challenges have been exhausted, a chance at clemency may be their only hope of either being released from prison or getting on with a productive life outside of prison. A well-presented petition, prepared witnesses, and a petitioner capable of taking responsibility and showing true remorse can give these clients the best odds with the clemency board and with the governor. commutation and approximately 36 petitions for pardon in her seven-plus years in office. The governor s office does not publish information about the number of petitions that are filed, or the number that are granted hearings. Several petitions are still awaiting the governor s decision. This governor has rejected petitions even when the board has recommended granting relief. One of the most recent commutations granted by Governor Gregoire is illustrative of what it might take for a clemency petition to be successful. Mary London was sentenced under the persistent offender statute to life without parole for offenses involving robbery, burglary, and assault of acquaintances. The third strike was for a robbery that netted $6 and two radios. At the time of her petition, Ms. London was 51 years old and had served 15 years. Ms. London s life story was fortune to be represented by Jeff Ellis, who put together a thoroughly supported, forceful petition. Typical of pardons granted by Governor Gregoire are the cases of Kizzy McNeal and Nghia Luu. Ms. McNeal was convicted in 1996 of assault in the third degree of her then-husband and the woman Ms. McNeal found sleeping with him. Following her conviction, Ms. McNeal went on to live an exemplary life. She attended college, enrolled in the military, remarried and had children. Ms. McNeal wished to pursue a career as an Army combat medic, and her assault conviction was hindering that ambition and getting in the way of her joining her military unit in combat in Iraq. Mr. Luu was convicted at age 19 of theft in the first degree for trying to steal a computer from Costco. Mr. Luu had led a crimefree life since the offense; he wished to pursue a career as a pharmacist but Maureen Devlin has both a law degree and MSW. She practices law in Seattle with David Zuckerman and focuses on clemency petitions and on acting as a liaison between clients and other professionals, such as psychologists. Notes 1. Petitioners may also file requests to have their civil rights restored through the clemency process; these requests are not discussed here. 2. RCW governs pardons/commutations in death penalty cases. The application of clemency to death penalty cases is not discussed here. Writers Needed for Washington Criminal Defense contact Teresa Mathis (206) teresa.mathis@wacdl.org 12 p Defense May 2012

13 Legislative Report Agreement on public defense funding; nonconviction data bill to be interim project for legislature. BY Bob Cooper, Christie Hedman & Teresa Mathis Preserving indigent defense funding and making nonconviction data private were our top priorities this year. We succeeded with the first but there s still work to do on the second. In addition, WACDL and WDA members and staff reviewed over 250 criminal-law related bills introduced this year and took positions on over 100 of those. This article provides an overview of defense bar efforts during this session. Other articles in this issue of Defense describe new laws related to DUI, competency restoration, cases, and other bills of interest to criminal and public defense lawyers. Public Defense Funding With one hiccup along the way, state lawmakers agreed that funding for public defense via the Office of Public Defense and the Criminal Justice Training Commission will remain stable for the remainder of the biennium. Agreement was finally reached in what was technically a second special session for 2012 that began at 12:01 am, Wednesday, April 11, and ended shortly before 8 am the same day. The first House budget iteration cut nearly $7 million from trial level indigent defense, but soon was restored thanks to our advocacy and the support of key legislators. WDA Executive Director Christie Hedman testified at the House budget hearing that cutting trial level public defense funding would be a pull-back from the state s obligation that is likely unconstitutional. WDA/WACDL Lobbyist Bob Cooper reminded legislators that obligation had been clearly recognized in 2005 legislation which stated, The legislature recognizes the state s obligation to provide adequate representation to criminal indigent defendants and to parents in dependency and termination cases. He also reminded them that adequate representation includes continuing legal education and the support services necessary to do the job well. Messages from WDA and WACDL members in support of public defense funding were a critical component to the restoration as well. Passage of the budget at the end of the regular session was delayed due to an unusual move when three dissident Democrats joined with Republicans to take over the Senate and pass a more austere budget. The Senate coalition budget eliminated housing assistance, medical care and drug treatment in the programs formerly known as Disability Lifeline and those cuts helped trigger the budget impasse that required the calling of a special session. Fortunately, the final budget continues those programs, which are key components used in the state s drug court system. The budget also includes full funding for TeamChild and civil legal services. Confidentiality of Nonconviction Records Subject of Interim Study While WACDL and WDA-backed SB 5019, which would have shielded nonconviction records from disclosure, did not pass the legislature, it will be the subject of legislative committee work this summer. This bill has been introduced and worked on for a couple of years, Senator Debbie Regala (D-Tacoma) wrote to Committee Chair, Senator Jim Hargrove (D-Hoquiam). While we have tried to find solutions, they have eluded us. SB 5019 would have allowed a court to order confidentiality of records of charges that did not result in a conviction, vacated convictions, deferred dispositions and domestic violence protection orders records known to have adverse impacts on employment and housing opportunities. Many court records are already confidential, including adoption records, mental illness commitment records, alcohol and drug treatment commitment records, paternity records (except final orders), confidential name change records, and juvenile non-offender records (juvenile dependency, truancy, at-risk youth, child in need of services, termination of parental rights, and developmental disability placement). Nonetheless, county clerks continued to object, saying the records should remain public. Clerks also testified that it would create $500,000 in costs, and the Administrative Office of the Courts said it would take 1.85 person-years costing $462,000 to reprogram their computers. In such a tough budget environment, this was enough to sink the bill, even though the Judicial Information Systems account was more than $2 million under-spent. Landlords also objected, wanting to continue to be able to see even unfounded allegations against potential tenants. Defense May 2012 p 13

14 Traffic to Trafficking The WACDL/WDA Legislative Committee (Amy Muth, Patricia Fulton and Greg Link, co-chairs) oversaw our work on a wide variety of other bills. In some cases, our work began long before the Washington State Legislature convened. Members participated in meetings, organized by legislators, to draft DUI, DV, bail, 71.09, juvenile records and competency restoration legislation. Once the session started, members reviewed and testified on bills. In many cases, our efforts led to improvements in bills that passed: Because of our involvement on the Impaired Driving Task Force, HB 2443 includes changes authorizing judges to convert mandatory electronic home monitoring to jail time at a 15 days to 1 day ratio and giving drivers convicted of reckless driving when reduced from a DUI day-for-day credit toward the license suspension from any administrative suspension they may have already served. Patricia Fulton took the lead on this task force. Amanda Lee testified on a Medicaid fraud bill, SB 5978, and was successful in getting new state criminal theft provisions removed from the bill. Amy Muth testified against HB 2177, a bill introduced in response to a Pierce County case where a pro se defendant preparing for trial had been able to review images of child porn. Amy testified soon after the Washington State Supreme Court issued its January 5 ruling in State v. Gresham. Amy had testified against the new law, RCW , when it was considered by the legislature in 2008 arguing that the bill was in conflict ER 404(b). Amy, author of the WACDL/WDA amicus in Gresham, used the same separation of powers argument against HB This time, the legislature paid more attention. While the bill did pass, it did so only after adopting amendments that Amy helped draft. SB 6492, a bill addressing competency restoration was the result of several years of work focused upon improving the competency restoration process. It goes into effect May 1, WDA and WACDL members Abbey Perkins, Mike De Felice, Daron Morris, Chris Jennings, Eileen Farley, and Mike Kawamura were instrumental in assisting to improve the bill. Although we asked for a veto of sections making amendments we didn t like to the civil commitment provisions (which the governor ignored), there was general agreement that this bill is an important step forward in helping to improve a broken process. It seems every session there is a bill that almost slips by our reviewers as it is referred to an unusual committee and appears not related to criminal defense. This year that bill was SB 6135 relating to fish and wildlife violations. The original bill made it a misdemeanor for an individual not to provide a Fish and Wildlife officer with identification; fortunately, due to the input of Greg Link and Dan Fessler, we were able to have the bill amended to make this an infraction. This 58-page bill makes numerous other changes to fish and wildlife enforcement that merit close attention by those defending these cases. We also testified on a number of bills related to prostitution and sex trafficking. We supported SB 6255, which passed; it creates an affirmative defense to the crime of prostitution for victims of trafficking. And we opposed two of these bills, HB 1983 and HB 2692, both of which required judges to impose mandatory fines of up to $10,000 for patronizing a prostitute. When these bills passed despite our testimony regarding the impact this would have on indigent defendants, the financial burden on the courts of collecting the fees, and the well documented fact that imposing mandatory fines does not reduce crime we asked the governor to veto these provisions of the bill. She did veto portions of HB 2692, but only because they amended the same RCWs as HB Similarly we opposed the new, mandatory fines HB 2302, regarding DUI with a child in the vehicle, arguing that increasing mandatory minimum fines serves only to divert the funds a defendant has available to pay for things that increase public safety such as alcohol and drug treatment or an ignition interlock device. We testified against the bill and, when it passed, requested a veto. The Governor, however, did sign the bill (and the new penalties) into law. We supported several juvenile bills that would improve the ability to seal juvenile records. HB 2541, sealing of juvenile records, which was the least progressive of the bills introduced, passed the legislature, but was vetoed by the Governor as its provisions were incorporated into the final version of SB 6240, modifying juvenile disposition orders. Although we have been urging reforms to the truancy process, SB 6494 ultimately did not promote the best practices we suggested. Our improvements to the bill to ensure children would have representation were successfully amended in the House, but were removed from the final bill. The Governor did not veto the sections we requested. 14 p Defense May 2012

15 HB 2771, addressing employer and employee relationships under the state retirement systems, was introduced by King County in response to the Dolan decision. We supported improvements to the bill to ensure public defenders would retain protections that were included in the final bill. Bills that Failed to Pass Some of the most useful work we do is to testify against bad bills. There were many this year: Another attempt was made to mandate collection of DNA upon arrest, but that legislation was not brought to a vote in the House after heavy lobbying by WDA and WACDL pointing out it would constitute a search without a warrant and was likely unconstitutional. A bill was introduced to create transitional reentry housing through the department of corrections essentially allowing small group homes to sidestep the landlord-tenant act (including all of its health and safety requirements) in the name of programs to assist re- A Note about Bill Numbers cently released prisoners transition back to the community. Landlords have been pushing this concept for several years, contending that they need a way to remove potentially disruptive individuals from their programs that doesn t include the due process protections of the unlawful detainer statute. While the bill passed the Senate unanimously, it was again stopped in the House. Legislation to make any robbery of a pharmacy a robbery 1 O failed, again, to pass. Ramona Brandes testified against a bill that would have denied defendants convicted of a crime that caused the death of person access to autopsies and post mortem reports. We also opposed bills to make crimes out of bad behavior on ferries including acts like listening to the radio in your car. Kim Gordon testified against a bill that would have expanded the rights of law enforcement to video and audio record a bill intended The letters before the numbers provide information about the bill. House bills are first introduced in the House; Senate bills are first introduced in the Senate. In some cases, identical bills companion bills are introduced in both houses. Some bills never get a hearing in a committee. Those that do are often amended, perhaps multiple times. Each different version of the bill gets new letters in front of the bill numbers; E2SHB 2121 = engrossed second substitute House Bill But in the end what matters is the version that passed the legislature and was signed by the governor. So, in the interest of simplicity, we ve only used HB or SB before the bill number. If you go to the legislature s website, to read bills, enter the bill number only (no letters) in the bill search box. Then scroll down the list of available documents until you find the session law that s the final version. You may also want to read the final bill report, prepared by legislative staff; which summarizes the bill and provides context for the changes it makes. to make the way for the use of police body cameras, because it would have limited individual privacy rights without providing for added police accountability or trustworthiness. Amy Muth testified against a bill that would have transferred a number of state programs, including victim advocacy programs, to the Attorney General s Office, arguing that placing control of victim services in a prosecuting agency creates a potential and actual conflict. Cynthia Jones testified against a bill that would have put new, broad limits on public disclosure requests that agencies considered burdensome or harassing Erin Curtis testified against a bill creating a new type of protection order: the stalking order. She argued that this was unnecessary (since remedies for stalking currently exist), confusing, and would have added unnecessary expense to a justice system already struggling with budget cuts. Legislation which would have increased penalties for custodial assault at state hospitals. There were also bills we supported that died. These included bills to abolish the death penalty and to compensate individuals who had been wrongfully convicted and imprisoned. Legislation to use evidence-based solutions to address gang problems across the state was halted by its own sponsor after amendments emerged to add civil injunctions to the bill. The civil injunctions could have led to criminal penalties. Legislation that would have limited the liability of parents whose children are involved in the juvenile justice system got out of committee, but died in its house of origin. Defense May 2012 p 15

16 New Bills Criminal-law related legislation passed in BY Kallie Ferguson and Christie Hedman The following list, primarily based upon bill reports prepared by legislative staff, contains summaries of bills enacted in 2012 that are related to criminal law and public defense practice. Unless otherwise noted, the effective date for these bills is June 7, More information about these bills is available on the Washington State Legislature s website, wa.gov. Bail HB 1194: Bail. When a person is arrested and detained for a class A or B felony, a judicial officer must make a bail determination on an individualized basis (extending legislation passed in 2010 that expired in August of 2011). Dependency HB 2254: Foster care outcomes. Changes the Passport to College Promise program expiration date to Adds a program purpose to the Passport program to improve high school graduation outcomes of foster youth. Adds or replaces various requirements for the DSHS, higher education institutions, school districts, and other partners related to coordination, data-sharing, communication, support services, and educational outcomes for foster youth. Requires that foster youth be automatically enrolled in the College Bound Scholarship program and foster youth who are between the ages of 18 and 21 who have not graduated from high school are eligible for the College Bound Scholarship to apply. HB 2263: Child welfare system savings. Creates a Child and Family Reinvestment Account (account) to be used to achieve certain outcomes. Directs DSHS Children s Administration (department) to develop a methodology for calculating savings resulting from decreases in foster care caseload and per capita costs. Requires the department to report the methodology to the legislature by December 1, Requires the department to utilize the methodology and calculate savings based on actual foster care caseload and per capita expenditures at the end of each fiscal year beginning with fiscal year Requires the state treasurer to transfer the amount of state general fund savings calculated by the department pursuant to the methodology into the account. Requires the Joint Legislative Audit Review Committee to conduct a sunset review. HB 2264: Child welfare/contracting. Repeals provisions established by HB 2106 (2009), which mandated the conversion of contracts for child welfare services to performance-based contracts; extends dates related to contracting with supervising agencies for child welfare services in demonstration sites. Expressly mandates DSHS to enter into performance-based contracts with one or more network administrators for family support and related services by December 1, Requires DSHS to consult with specified stakeholders to identify categories of family support and related services to include in the procurement. Requires the Office of Financial Management to approve a request for proposal prior to its issuance. HB 2536: Children/ser vices delivery. See page 18. HB 2592: Extended foster care. Expresses the legislature s intent that dependent youth seeking postsecondary academic or vocational education will be served through the Extended Foster Care program, and not the Foster Care to 21 program. Requires the Foster Care to 21 program to cease operating in three years. Authorizes DSHS to provide extended foster care services to youth ages to participate in or complete a postsecondary or vocational program. Requires the court to postpone dismissing a dependency proceeding for certain youth. SB 6226: Subsidized child care. 16 p Defense May 2012

17 Although Rep. Goodman introduced a domestic violence bill, HB 2363, that included new felony stalking laws and rules that would have allowed no-contact orders on misdemeanor cases to be re-issued upon application by any person with reason to believe that the no-contact order was necessary, the version of the bill that became law made only minor changes to domestic violence laws this year. Punishment: The mens rea for violating RCW 9A (Harassment-Court-ordered requirements upon a person charged) was amended from intentional to willful and it was reclassified as a gross misdemeanor (from a simple misdemeanor). RCW 9A (Harassment- Order restricting contact) was also reclassified as a gross misdemeanor (from a simple misdemeanor). No-contact orders and court appearances: No contact orders issued under RCW may be extended at arraignment so long as the court finds probable cause, regardless of whether the defendant appears at the arraignment. Persons arrested for violating a civil anti-harassment order are now required to appear before a magis- Changes authorization periods for subsidized child care. Effective 8/1/12. SB 6555: Child protection. When DSHS receives a report of child abuse or neglect, it must use one of two responses: an investigation or a family assessment. Family Assessment Response (FAR) is a comprehensive assessment of child safety, risk of subsequent child abuse or neglect, Domestic Violence trate within one judicial day of arrest. Confidential information regarding domestic violence shelters: A new rule was created that says that any person who obtains access to and intentionally and maliciously releases confidential information about the location of a domestic violence program for any purpose other than required by a court proceeding is guilty of a gross misdemeanor. Domestic violence program is not defined in the bill, but this section is intended to apply to confidential addresses of emergency shelters and transitional housing. Domestic violence perpetrator programs: Finally, the Washington State Institute for Public Policy was directed to conduct a statewide study to assess recidivism, examine effective community supervision practices, and assess domestic violence perpetrator programs. There is growing evidence that domestic violence programs are ineffective. Hopefully, this study will confirm other nationwide findings and may be useful in reducing the use of this as a sentence condition in domestic violence cases. By Travis Stearns and family strengths and needs that is applied to a child abuse or neglect report. The assessment does not include a determination as to whether child abuse or neglect occurred but does determine the need for services to address the safety of the child and the risk of subsequent maltreatment. FAR is defined as a way of responding to certain reports of child abuse or neglect using a differential response approach to child protective services. FAR is to focus on the safety of the child, the integrity and preservation of the family, and is to assess the status of the child and family in terms of risk of abuse and neglect including a parent or guardian s capacity and willingness to protect the child. No one is named as a perpetrator and no investigative finding is entered in DSHS s database. In responding to a report of child abuse or neglect, DSHS must: (1) use a method to assign cases that includes the presence of imminent danger, level of risk, number of previous child abuse or neglect reports, or other presenting case characteristics; (2) allow for a change in response assignment based on new information that alters risk or safety level; (3) allow families assigned to FAR to choose to receive an investigation rather than a family assessment; (4) provide a full investigation if a family refuses the initial family assessment; (5) provide voluntary services to families based upon the results of the initial family assessment; however, if the family refuses the services and DSHS cannot identify specific facts related to risk or safety that warrant assignment to an investigation, and there is no history of child abuse or neglect reports related to the family, then DSHS must close the case; or (6) conduct an investigation on response to allegations that: (a) pose a risk of imminent harm to the child; (b) pose a serious threat of substantial harm to the child; (c) constitute conduct that is a criminal offense and the child is the victim; or (d) the child is an abandoned or adjudicated dependent child. DSHS must implement FAR no later than December 1, DSHS may implement FAR on a phased-in basis by geographic area. DSHS must develop an implementation plan in consultation with stakeholders including the tribes. DSHS must submit an implementation plan report to the legislature by December 31, Defense May 2012 p 17

18 DWLS 3 Sen. Kline s DWLS 3 reform bill, SB 6284, passed. After at least twelve years of work on this issue, this victory makes the first significant reduction in the number of persons that can be charged under this statute. This year s bill will exclude from prosecution those persons who fail to appear in court or pay on nonmoving DWLS 3 violations. Instead, those that default will be subject to civil penalties for their non-payment, including collections, garnishments, and liens. While the majority of stops will not be impacted by this legislation, this bill could result in at least 10,000 fewer prosecutions a year for this offense, generating $1 million dollars in additional revenue for the state and saving local jurisdictions up to $36 million. Hearings on this bill focused on USDOT studies which showed that there was no public safety difference between those who pay their tickets and those who do not; the costs to local governments associated with prosecuting DWLS 3; and the fact that DWLS 3 disproportionally impacts persons of color, noncitizen residents, and the working poor. This first step towards eliminating DWLS 3 for persons who fail to appear in court or fail to pay was made possible through the significant efforts of the Seattle City Attorney s Office and Darby DuComb s (Chief of Staff for the Seattle City Attorney s Office) work to convince law enforcement to agree to support the bill. By Travis Stearns DUI & Driving HB 2302: Being under the influence. See page 24. HB 2443: Persons who drive impaired. See page 24. Effective 8/1/12. HB 2216: Vehicular homicide and assault. See page 24. SB 6030: License suspension errors. See page 24. SB 6150: Driver s licenses, permits, identicards. See page 24. Effective 10/1/12 SB 6284: Civil traffic infractions. See adjacent box. DV HB 2363: Domestic violence victims. See page 17. Housing SB 6167: Criminal ID system info. Allows businesses and organizations that provide emergency shelter, interim housing, or transitional housing for children, persons with developmental disabilities, and low-income or vulnerable adults to request criminal identification system information regarding the conviction record for a prospective client or resident. Juvenile HB 1775: Juvenile restorative justice. Provides that participation in a restorative justice program is sufficient to satisfy the requirements of a juvenile diversion or a counsel and release. HB 2535: Juvenile gang court. Authorizes counties to establish and operate juvenile gang courts and requires them to track and document data regarding the criteria that led to a juvenile s admission to gang court, the successful or unsuccessful completion of juvenile gang court requirements, and subsequent criminal charges of juvenile gang court participants; and to provide the data to the Administrative Office of the Courts. Requires AOC to study the data provided by the counties. HB 2536: Children/services delivery. Requires DSHS by June 30, 2012, in consultation with other entities, to publish descriptive definitions for and to prepare an inventory of evidence-based, research-based, and promising practices. The Health Care Authority (HCA), by June 30, 2013, must complete a baseline assessment of the utilization of evidence-based and research-based practices in the areas of child welfare, juvenile rehabilitation, and children s mental health. DSHS must prioritize assessments of the effectiveness of identified promising practices with the goal of increasing the number that may be designated as evidence-based or research-based and develop strategies to use unified and coordinated case plans for clients who are or will likely be involved in multiple systems. DSHS and HCA must identify and seek federal matching funds for certain components of evidence-based practices. DSHS must coordinate training across program areas for evidence-based and research-based practices and to use monitoring and quality control procedures designed to measure fidelity. DSHS and HCA must, by December 30, 2013, report regarding recommended strategies, timelines, and costs for increasing the use of evidence-based and research-based practices for the next two biennia and to provide updated reports in 2014 and SB 6157: Juvenile detention intake. Counties must develop an intake and risk assessment standard to determine whether a juvenile admitted to a county juvenile detention facility is developmentally disabled. The assessment standard must be developed and implemented no later than December 31, SB 6240: Juvenile disposition orders. If a motion for a deferred dis- 18 p Defense May 2012

19 position is made with less than 14 days but prior to commencement of the trial, the court may waive the 14-day requirement for good cause. A juvenile who agrees to a deferral of disposition must acknowledge the direct consequences of being found guilty and the direct consequences that will happen if an order of disposition is entered. At the conclusion of the deferral period, if restitution has not been paid in full, the court may proceed to vacate the conviction if the court is satisfied the respondent made a good faith effort to pay. In this instance, the court must enter an order establishing the amount of restitution still owing and the terms and conditions of payment, which may include a payment plan extending up to ten years. The respondent remains under the court s jurisdiction for a maximum of ten years after the respondent turns 18. Prior to the expiration of the initial ten-year period, the juvenile court may extend the judgment for restitution an additional ten years. The court may relieve a respondent of the requirement to pay restitution to any insurance provider if the court is satisfied the respondent does not have the means to pay and could not reasonably acquire the means to pay over a ten-year period. When vacating a deferred disposition, the court must also enter an order sealing the case if the juvenile is 18 years of age or older and restitution has been paid in full. When a case is vacated prior to a juvenile turning 18, the court must set an administrative hearing to seal the case no later than 30 days after the juvenile turns 18 if no further charges are pending and restitution has been paid in full. A disposition in a single disposition order for two or more offenses runs consecutively. When disposition for two or more offenses is contained in separate disposition orders, multiple orders of detention must run consecutively, but the terms of community supervision will run concurrently. SB 6494: School truancy procedures. The maximum age of a child at which a school district may be legally required to file a truancy petition is lowered from 17 to 16 years of age. Court jurisdiction is not required to terminate when a child turns 17, nor is a school district precluded from filing a truancy petition. The truancy petition must include information describing the child s current academic status in school. A court may not issue a bench warrant for a child for failure to appear at an initial truancy hearing, but may enter a default order assuming jurisdiction over the child. After the court assumes jurisdiction, the school district must periodically update the court about the child s academic status in school at a schedule to be determined by the court, with the first report to be received no later than three months from the date at which the court assumes jurisdiction. Mental Health HB 2357: Sales and use tax/mental health. Extends the partial suspension of the non-supplant restriction for the county mental health/chemical dependency sales and use tax. HB 2536: Children/ser vices delivery. See page 18. SB 6328: Mental health professionals. Authorizes the secretary of the Department of Health to issue a retired active license to mental health counselors, marriage and family therapists, licensed advanced social workers, or licensed independent clinical social workers, under certain circumstances. SB 6492: Competency to stand trial. See page 26. Effective 5/1/12. Miscellaneous HB 2191: Police dogs. Police dogs are exempt from certain liability requirements relating to damage from biting. Civil penalties are imposed for harming a police dog. HB 2195: Depositions and discovery act. Adopts procedures for litigants in proceedings located outside of Washington to obtain subpoenas for depositions and production of discoverable materials located in Washington. HB 2347: Spring blade knives. The definition of spring blade knives is redefined and a new section is added to RCW modifying the provisions relating to the possession of spring blade knives. Exempts firefighters and rescuers, Washington State Patrol officers, and military members from certain prohibitions against spring blade knives. HB 2570: Metal property theft. Theft of metal wire taken from a public service company or a consumer-owned Defense May 2012 p 19

20 utility when the cost of damage exceeds $5,000 is added to the category of crimes of theft in the first degree. When the cost of damage exceeds $750 but does not exceed $5,000 the theft is a crime in the second degree. Bail Task Force Update In 2010, in response to the Maurice Clemmons shootings, the Washington State Legislature passed a bill authorizing the formation of a task force to review bail practices throughout Washington State and propose legislative fixes. I was appointed to serve as the WACDL representative; Les Tolzin was appointed to serve as the WDA representative. Defense lawyers Mark Larrañaga and Neil Fox also served on the task force, representing other organizations. Task force members agreed on several issues, including necessary reforms to the bail industry that would protect our clients as bail consumers. Additionally, there was interest in developing a risk assessment tool that judges could use to guide them in bail setting decisions. However, one issue divided the work group: requiring a mandatory minimum bail premium of 10%. Senator Adam Kline, a co-chair of the task force, opposed this provision. In the 2011 session, the task force proposed a bill that omitted mention of the HB 2771: State retirement systems. States more clearly, and confirms, that employees of for-profit or not-for-profit corporations or other entities providing services under governmental contracts are not, as a result of providing the governmental service, eligible for membership in the various public retirement programs. Provides cross-references to existing statutes that affect eligibility for pensions under certain retirement systems and to bail provision and instead sought the reforms that all task force members agreed to. The bill appeared set to pass and then, at the last minute, the prosecutors proposed an amendment requiring defendants to pay 5% of the bail set by either cash or credit as a condition of being released. WACDL and WDA vociferously opposed this provision, and ultimately, the bill died. This session, the original 2011 bill was proposed consisting primarily of bail industry reforms and directing that risk assessment tools for bail determinations be provided to courts. Once again, the prosecutors opposed the task force bill because it did not include the provision they wanted: a mandatory 5% premium payment. We thought we would be able to pass the task force bill but, unfortunately, the bill died. The bail task force will pick up the issue of the premium payment this summer when, yet again, it reconvenes. By Amy Muth the relevant definition statutes. SB 5978: Medicaid fraud. Establishes the Medicaid Fraud False Claims Act, permitting qui tam actions. A person, known as a relator, may bring a civil action on both their own behalf and that of the state alleging submission of a false Medicaid billing. This act establishes civil penalties in the range of $5,000 - $11,000. The act also creates the Medicaid Fraud Penalty Account and provides for sunset termination and review under RCW SB 6108: Theft of rental property. Clarifies the location at which the crime of theft of rental, leased, leasepurchased, or loaned property occurs is either at the: (1) physical location where the written agreement was executed; or (2) address at which the proper notice may be mailed to the renter, lessee, or borrower. SB 6135: Fish and wildlife enforcement. Department of Fish and Wildlife Law Enforcement Officers are allowed, when issuing a Notice of Infraction (NOI), to detain a person long enough to identify the person, check for outstanding warrants, and complete and issue the NOI. The person receiving the NOI must also provide the officer with his or her name, address, and date of birth, including reasonable identification upon officer request. Failure to identify one s self is an infraction. This omnibus bill also amends definitions and training requirements for enforcement officers, ranks unranked felonies, adds new crimes and infractions, strengthens penalties, and makes technical corrections to a variety of statutes relating to fish and wildlife enforcement. SB 6258: Unaccompanied persons. Expands the definition of luring to include ordering, luring, or attempting to lure a minor or a person with a developmental disability away from any area or structure constituting a bus terminal, airport terminal, or other transportation terminal. Effective 1/1/13. SB 6296: Background checks. Criminal justice agencies may impose additional restrictions, including fingerprinting, as are reasonably necessary to assure the record s security and to verify the identity of the requester. The agency may charge a reasonable copying fee. The definition of criminal history record in RCW is clarified to exclude police incident reports. An entity conducting a background check pursuant to RCW will receive information about any incident that occurred within the last 12 months for which the person 20 p Defense May 2012