Seattle Criminal Attorney | Decisions 10/13/09
Every week the Washington State Court of Appeals and the Washington Supreme Court send out a notice of their published and unpublished opinions (if you ask). Most of the time they are pretty boring, but some times they have some new analysis of old law or actually make significant changes to the law. They also do a great job of educating people on criminal law in general. Because of this, and because I’m a fancy Seattle criminal attorney, I’ve decided to recap the criminal cases here every week for you to peruse, learn, and analyze on your own. The cases will be summarized in the same way for easy navigation. First will come the facts, then the issue, then the standing law, then analysis, and then the decision.
Washington State Criminal Law Opinions
Public Criminal Jury Trials – State v. Strode
Facts – Strode was charged with first degree rape of a child, first degree attempted rape of a child, and first degree child molestation. Strode demanded a jury trial and it was held on July 10, 2006. The case dealt with child sex, so the jurors were given a special questionnaire to fill out prior to showing up for jury duty. One of the questions on the questionnaire concerned whether or not the juror had ever been the victim of child sex abuse or accused of child sex abuse. Those that answered yes to the question were taken into the judge’s chambers and questioned about the response.
No hearing was held before the jurors were taken into chambers to determine if that was the correct thing to do. At the questioning the only people present were the judge, both attorneys, and the defendant. The judge and both attorneys had the opportunity to question the prospective jurors and make challenges for cause in chambers. After the questioning, the jurors were sent back out into the jury pool and the jury was picked. Strode was convicted of all charges.
Issue – Did interviewing the jurors in the judges chambers violate Strode’s right to a public trial?
Law – The sixth amendment to the United States Constitution guarantees that: in all criminal prosecutions, the accused shall enjoy the right to a public trial; The courts have found that this affords the public and the press the right to open and accessible court proceedings. Open trials are also designed to ensure a fair trial, to encourage witnesses to come forward, and to discourage perjury. The right to a public trial, however, is not absolute, and it may be rescinded in extraordinary circumstances.
This right to a public trial does not begin with opening statements. It also extends to jury selection. It has been specifically held that
a closed jury selection process harms the defendant by preventing his or her fairly from contributing their knowledge or insight into jury selection and by preventing the venire from seeing the interested individuals.
The presumption of the open trial can only be overcome in extraordinary circumstances. It may only be done to serve a narrowly tailored interest. And the interest must be articulated with findings by the judge specific enough that a ruling court can determine whether trial closure was proper. To close a jury trial, five criteria must be satisfied:
(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 proponent must show “a serious or eminent threat”; to that right;
(2) Anyone present when teh closure motion is made must be given an opportunity to object to the closure;
(3) The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests;
(4) The court must weigh the competing interests of the proponent of closure and the public; and
(5) The order must be no broader in its application than necessary to serve its purpose. Bone-Club, 128 Wn.2d at 258-59.
Failure to engage in this analysis results in a defendant’s public trial rights.
Analysis – There was no record made as to why the jury selection was closed, even if the reasons were obvious; The absence of a record showing that the trial court gave any consideration to the Bone-Club closure test makes it impossible to determine if compelling interests were weighed.
Furthermore, this isn’t something Strode had to object to at trial. It affects a constitutional right of such magnitude that it can be raised for the first time on appeal. Additionally, it isn’t even something the prosecutor can waive, as the public itself must be given a chance to weigh in on their feelings toward closing trial.
Holding – The right to public trial is not subject to harmless error analysis. It is a structural error and prejudice is presumed. Therefore, Strode’s convictions are reversed and the case is remanded for new trial.
Criminal Defense Attorney Perspective – This case is, for the most part, just an application of an already well established rule. The right to public jury trial, though honestly probably not held in high regard, particularly in a circumstance such as this (it would be very hard to get prospective jurors to talk about their own personal issues in front of so many), is, at the end of the day, an important Constitutional right. In the end, the judge or the prosecutor probably should have made sure closing the trial was done properly to avoid this problem. In this case, this wouldn’t necessarily be something a criminal attorney Seattle would bring up.
Right to Public Criminal Jury Trial – State v. Momah
Facts – In 2005, Momah was charged with one count of rape in the third degree, two counts of indecent liberties, and one count of rape in the second degree. The charges arose out of allegations of sexual abuse when examining his patients (he was a gynecologist). A juror questionnaire was provided, and the judge and attorneys came up with a list of potential jurors that should be questioned individually. Before moving into chambers, the judge acted to prevent jurors with knowledge of the case from tainting the rest of the panel. After that the individual questioning of jurors began. Momah was convicted on all charges.
Issue – Did trial court violate Momah’s right to a public trial?
Law – See case above for outline of law.
Analysis – In cases like this it is important to harmonize the need for a public trial with the need for an impartial jury. The main goal of a criminal trial is to try the accused fairly. Included in this analysis is the accused’s tactical decisions. It is also important to consider the invited error doctrine, which provides that if a defendant is responsible for the reversible error, it may be reasonable to deny a new trial, as the defendant “invited the error” into the proceedings. In this case the invited error doctrine doesn’t clearly apply, but using it’s premise may be helpful.
In this case, it is helpful as it concerns Momah’s appeal based on the inabilty to have a public trial, which, at trial, he openly endorsed and advocated for. The Court finds this case distinguishable from others on those grounds. Holding – Court grant automatic reversals and remand for new trial only when errors are structural in nature. An error is structural when it makes a trial unfair or unreliable for determining guilt. In this case, the error was not structural. The jury’s verdict is affirmed.
The Seattle criminal attorney perspective – For me, this appears to be inconsistent with the previous case. In Momah, though defense counsel appeared to be in favor of questioning jurors individually, it doesn’t appear that the court made any effort to ensure the factors required to close trial proceedings were followed. In Strode, the case above, there was no indication defense counsel objected to questioning jurors individually. In fact, it says the defense attorney participated in questioning. In this case, it appears the court reached a decision and then tried to back into it, even though a sister decision reached exactly the opposite conclusion.
Speedy Trial Rights and the Criminal Process – State v. Iniguez
Facts – Iniguez was arrested for four counts of first degree robbery. He remained in custody with his co-defendant awaiting joint trial for over 8 months. The State moved for four continuances, the last of which was because a witness was out of town. Iniguez’s co-defendant also sought numerous continuances. Iniguez objected to all continuances. The jury convicted him on all counts. The Court of Appeals reversed the conviction and dismissed the charges because his speedy trial rights were violated presumptively, not because of a direct violation of Criminal Rule 3.3.
Issue: Is there a violation to speedy trial rights that is presumed and outside those described in Criminal Rule 3.3? Iniguez argues that Washington’s Constitution presumes a violation of speedy trial rights if a defendant is not brought to trial within 6 months of charges (when in custody).
Law – The Washington Constitution states “in criminal prosecutions the accused shall have the right to have a speedy public trial.” The Sixth Amendment to the United State Constitution states “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The right to a speedy trial is as fundamental as any right secured by the sixth amendment. Although speedy trial is important, some delays can be expected. And, though deemed an essential constitutional right, speedy trial has been defined as “amorphous, slippery, and necessarily relative.” In other words, it is hard to tell how long is too long (as attested to by the Supreme Court here):
It is “impossible to determine with precision when the right [to a speedy trial] has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.” Thus any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case.
Because of this, a test has been fashioned. First, the defendant must show the delay is more than ordinary but is presumptively prejudicial. But, if this is shown, you don’t win yet. Second, one must show the nature of the delay, though presumptively prejudicial, was of such a nature that a constitutional violation occurred. Some factors include: (1) length of the delay; (2) the reason for the delay; (3) whether defendant asserted his right; and (4) the ways in which delay caused prejudice to the defendant. In addition to these sixth amendment rules, there are also Washington State rules, most notably the specific time periods laid out by the criminal rules of procedure (60 days for those held in prison).
But, CrR 3.3 was enacted to enforce constitutional standards, not to guaranty constitutional rights. Therefore, a violation of these standards is not necessarily a violation of constitutional rights. Washington’s speedy trial rules are the same as the federal rules.
Analysis – These were the court of appeals’ findings. The pretrial delay here was presumptively prejudicial. Case law presumes so for cases taking longer than 8 months to go to trial. Iniguez was never the cause of the pretrial delay; the delay for unavailability of witnesses should go against the state; Iniguez consistently asserted his speedy trial rights; and Iniguez was prejudiced by being incarcerated the entire time. Additionally, asserting speedy trial rights trumps the joinder of co-defendants in trial.
The Supreme Court agrees (though in a roundabout way). They didn’t think a fact based analysis was done to determine prejudice. In addition to the length of time, the complexity of the charges and eyewitness testimony should also be taken into account. Taking these factors into account prejudice exists.
Now, on to the Barker factors. First, length of delay – 8 months in prison isn’t that long of a time. Second, reason for delay – even though state requested all of the continuances, the state didn’t do it to interfere with Inguez’s speedy trial rights. Third, asserting speedy trial – Inguez did a good job here. And fourth, prejudice to defendant – Inguez didn’t show any impairment in his defense, so we won’t find this.
Holding – no speedy trial violation.
A Seattle criminal lawyer’s thoughts – Really?!! No speedy trial violation? The guy sat in jail for 8 months, was ready to go to trial immediately, caused no delay in the proceedings, had to wait through the circus that is the prosecutor preparing for trial, and that isn’t long enough to cause a problem? I get that the Supreme’s don’t like to let people that commit crimes go free, and they don’t feel like speedy trial is that important (how could they with this ruling), but come on, this is ridiculous. But hold on, because just like the public jury trial rulings above, I’ve got something ahead that will make you even more confused.
Seattle Criminal Law Speedy Trial Rights – State v. Kenyon
Facts – Kenyon charged with seven counts of first degree unlawful possession of a firearm. The case was complicated and continued out several times at Kenyon’s attorney’s request to complete discovery and investigation. When the case was ready for trial, there was no judge available to hear the case (because one was on vacation), so his speedy trial rights expired. Kenyon moved to dismiss, trial court denied the motion, Court of Appeals confirmed the ruling.
Issue – Does CrR 3.3, which allows for speedy trial exclusions for unforeseen circumstances, include the unavailability of a judge to preside over the trial?
Law – See above for additional information. The trial court is responsible for ensuring compliance with the speedy trial rules. Under CrR 3.3, when someone is in jail, they must be brought to trial within 60 days or arraignment. If they are not, the case must be dismissed with prejudice if defendant objects within 10 days after notice of trial date and setting is mailed. CrR 3.3(e) excludes certain periods, including: continuances; and unavoidable or unforeseen circumstances affecting the time for trial beyond control of court or parties. Court congestion is not a reasonable excuse for delaying trial, unless a careful record is made detailing the congestion, including the availability of courtrooms and visiting judges.
Analysis – Here, the court made no record, and appears to have made no attempt, to secure another judge to hear the case. In fact, the court found that the vacation was the cause of the delay, not court congestion. Vacation is not an unforeseen circumstance.
Holding – Court of Appeals reversed and charges dismissed with prejudice.
A Seattle criminal defense attorney’s take – I see how they got here on this one, but I don’t see how this guy was any more harmed than the last guy, who continuously asserted his speedy trial rights, made no moves of his own to delay trial, and was locked up in jail. I also find it interesting that in this opinion the 60 day time period is a strict one, but in the other case, it doesn’t affect constitutional implications. But at least the Court got it right here by telling judges they can’t just take vacations and let everything get clogged up.
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