Our office was relieved to hear that last week, the Washington State Attorney General’s Office decided to press charges against the three Tacoma Police Officers involved in the death of Manny Ellis. The brutal killing of Manny Ellis took an innocent and gentle soul away from his two young daughters, and has left our community traumatized and in shock. Based on witness statements, it is our belief that Manny Ellis was not treated with the dignity and fairness that the rule of law strives to uphold, and that his killing at the hands of these three officers was entirely unjust. Sadly these episodes have happened time and time again throughout our country’s troubled history of police violence, and we are devastated that an incident like this happened in our hometown. However, the Attorney General’s decision, as well as the recent conviction of Derek Chauvin for the murder of George Floyd have given us a glimmer of hope for a future in which Police Officers are not above the law, and will be held accountable for violence against our communities.
We at Horwath Law are hopeful that, Christopher Burbank, Matthew Collins and Timothy Rankine will enter and exit the justice system the same way that every other individual accused of a crime in the country does, entitled to the protections afforded by the Constitution, with no special privileges due to their line of work.
In February of this year, the Washington Supreme Court ruled that the state’s simple drug possession law was unconstitutional because it didn’t require prosecutors to prove someone knowingly had drugs. State v. Blake __Wn.2d ___ (No. 96873-0) (Feb. 25, 2021) Justice Sheryl Gordon McCloud wrote, “the possession statute at issue here does far more than regulate drugs. It is unique in the nation in criminalizing entirely innocent, unknowing possession.
In that case, the State prosecuted Ms. Blake for unlawful possession of methamphetamine following her arrest and jail booking on another matter. At booking, a jail officer found a small bag of methamphetamine in the coin pocket of Ms. Blake’s jeans. At her bench trial, Ms. Blake asserted the defense of unwitting possession. She testified that a friend bought the jeans second hand and gave them to Ms. Blake two days before her arrest. Ms. Blake also testified she had never used methamphetamine and did not know there were drugs in the pocket. Ms. Blake’s boyfriend also testified that Ms. Blake did not use drugs and that she received the pants from a friend. The court convicted. Held, the strict liability drug possession statute exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct with no mens rea. Passive and innocent nonconduct falls outside the State’s power to criminalize.
This ruling impacted defendants in two ways: (1) it changed the way felony offenders’ history was scored for sentencing purposes, which will result in hundreds of resentencing hearings, and (2) it will result in offenders being able to have their drug possession convictions vacated. Prosecutors and defense attorneys in the state are now tasked with identifying who is eligible for resentencing or having their conviction vacated.
The Washington state legislature has since adopted Senate Bill 5476 in response to the Blake. Senate Bill 5476 re-criminalizes the possession of controlled substances, making it a misdemeanor rather than a felony until July 1, 2023. For such violations, law enforcement officers can confiscate the controlled substances but must offer a referral to available assessment and services in lieu of jail booking and referral to the prosecutor. If law enforcement records indicate that a person has previously been diverted to referral for assessment and services at least twice, the officer may then arrest. Prosecutors are not precluded from exercising discretion to divert or decline to file charges when referred drug possession cases, and are encouraged to divert such cases for assessment, treatment, or other services. Unlike previous drafts, there are no provisions that contain legalized personal use amounts, nor a reduction from a misdemeanor to a civil infraction at a later date.
If you have a drug possession conviction on your record, or if you were sentenced to a another felony and your score was based off of a drug possession conviction, you may be affected by this change in law. Contact Horwath Law for a free consultation to determine if this new law applies to you.
Today, the Washington Supreme Court held that Washington’s strict liability drug possession statute is unconstitutional. Finding that the statute criminalizes innocent and passive possession – even by a defendant who does not know that drugs lay hidden in something they possess – Washington’s Supreme Court held that the statute goes beyond the legislature’s police power and is therefore unconstitutional under both the federal and state constitutions. This is a major win for the defense and the effect of this decision is far reaching. If you are a current client with our firm, and your case will be affected by this decision we will be in contact with you. For anyone else pending a unlawful possession of a controlled substance charge, contact your attorney because you very likely have some good news in store!
To access the full opinion you can do so here https://www.courts.wa.gov/opinions/pdf/968730.pdf
The investigation of the Pierce County Sheriff’s Department continues to unfold. Over the summer, the News Tribune reported that the Pierce County Prosecutor was refusing to work with accused Pierce County Sheriff’s drug unit members who were recently placed on a “potential impeachment” list. Several members of the unit are being investigated for possibly violating department protocols, including exceeding lawful peace officer powers, falsification of records, search-and-seizure policy, failure to obey lawful orders, failure to disclose material fact or making false or misleading statement, unsatisfactory job performance and constitutional requirements. Prosecuting Attorney Mary Robnett was quoted as saying, ““I am troubled by the way the arguments by these [officers] seem crafted to minimize and distract from the actual issues that are under investigation,” Robnett wrote.
Just a few days ago, it was reported that officers in the disbanded drug unit faked reports to protect an informant. The investigation found that Lt. Cynthia Fajardo, who is running for sheriff, might have violated numerous department policies, including lying about whether she informed supervisors about the fake police reports. It also found that three other officers might have violated policies such as creating a false police report, inappropriately managing informants, and not disclosing use of force in an arrest.
In any given day, officers have ample opportunities to bend the truth, exaggerate, or tell an outright lie, beginning with the reasons for initially contacting someone, and ending with what they testify to in court. Officers can be dishonest in affidavits, police reports, warrant applications, probable cause statements, and on the witness stand. Prosecutors rely on of all these things to secure a conviction. There are several reasons an officer may be dishonest. First, evidence obtained from an illegal search or seizure may not be used against a defendant at trial. An officer may provide false justifications for stopping or searching someone in order to make sure the evidence is admissible. Additionally, officers face consequences if they make a mistake or don’t follow protocol, which could be another reason for dishonest behavior.
At Horwath Law, we don’t just take the officer’s word for it. We thoroughly investigate each and every case to ensure that this type of behavior from law enforcement does not negatively impact your case. If an officer bends the rules, our attorneys will discover it.
If you are someone you know has been accused of a crime, contact the attorneys at Horwath Law for a free consultation.
Sources: Tacoma News Tribune; The Police Lie. All the Time. Can Anything Stop Them?
Written by Mark Joseph Stern
In May, we shared a blog post about police bias and dishonesty. At the time, the Pierce County Sheriff’s Department Drug Unit was under investigation. As reported by the Tacoma News Tribune, the majority of officers assigned to the Drug Unit of the Pierce County Sheriff’s Department had recently been reassigned so that an outside agency could review the unit’s procedures. The review was initiated by multiple officers and prosecutors raising questions about the unit’s practices. At the time of reporting, it was unclear if any investigations or criminal cases had been impacted by the inquiry.
It has now been reported that members of the drug unit are being investigated specifically for falsifying records and conducting improper searches. The Tacoma News Tribune has reported that in at least two of the cases, the potential violations resulted in criminal charges against alleged drug offenders being dismissed. Ten members of the unit have been placed on the prosecutors’ “Brady” list of officers, which is a list of officers who have sustained instances of lying or dishonesty. The investigation is ongoing. At Horwath Law, we will continue to stay up to date on any developments that may affect a police officer’s credibility.
Five years ago, the Washington Post began to log every fatal shooting by an on-duty
police officer in the US. Since the project began, the Post discovered that police have
shot and killed approximately the same number of people – 1,000 – annually and that
black Americans are killed at a much higher rate than white Americans.
A meaningful way to take action for our Black community is to advocate for police
reform. Here’s how you can get started:
Know your law enforcement agencies:
- State Patrol
- County Sheriff’s Departments
- City Police Departments
Know whom to contact to request change:
- U.S. Congress
Find your state representatives and demand that they pass federal legislation
immediately to end police violence. You can find Washington representatives
- State Legislature
Find your state representatives and demand that they pass legislation
immediately to end police violence. https://app.leg.wa.gov/districtfinder/
- County Executive
The county executive is the elected official that represents the county. The
executive manages the county’s departments and agencies, and sets policies and
standards for those agencies (e.g., the Sheriff’s Department). Demand police
reform policies that will decrease police violence.
- King County: email@example.com
- Pierce County: firstname.lastname@example.org
- Kitsap County: email@example.com
- City Mayor
Mayors oversee the city’s departments, including police. They typically appoint
police chiefs, negotiate collective bargaining agreements with police unions, and
establish budgets. Demand police reform policies that will decrease police
- Seattle Mayor: firstname.lastname@example.org
- Tacoma Mayor: Victoria.email@example.com
- Olympia Mayor: firstname.lastname@example.org
- Prosecuting Attorney
When police violence occurs, the prosecutor decides whether or not to investigate
and/or charge police misconduct
- King County Prosecutor: email@example.com
- Pierce County Prosecutor: firstname.lastname@example.org
- Kitsap County Prosecutor: email@example.com
- Thurston County Prosecutor: firstname.lastname@example.org
Know what to request:
Hello, I am a resident of State/County/City. I demand legislation/policies mandating
zero-tolerance in penalizing and/or prosecuting officers who kill unarmed, non-violent
individuals in an arrest. I demand the following police reform policies to decrease police
- Require body cameras on all officers
- Deprioritize policing for minor offenses (e.g., public intoxication or loitering)
- Ban chokeholds
- Ban knee holds
- Require de-escalation
- Require warning before shooting
- Exhaust all alternatives before shooting (e.g., using taser)
- Require officers to intervene if they see one of their coworkers using unreasonable force
- Ban shooting at moving vehicles
- Make misconduct/discipline reports of officers available to the public
- Implement citizen review boards
- Require that all use of force be reported
- Require intervention for officers with repeated complaints
- Require mandatory data collection of all use of force incidents
- Require officer training on implicit bias
- Create a registry to track police misconduct
- Require mandatory data collection of all persons apprehended by police for low- level offenses as well as anyone who dies in police custody, for later analysis of racial disparities
Know whom to vote for:
- The governor appoints the Washington State Patrol chief
- The mayor appoints the city police chief
- Washington voters elect the Sheriff
Sources: NAACP, www.8cantwait.org, www.joincampaignzero.org,
On March 3, 2020, Manuel Ellis was contacted by Tacoma police after being observed attempting to open doors of occupied vehicles. According to reports, there was a struggle between Mr. Ellis and officers. Mr. Ellis was placed into handcuffs and detained. In a police radio recording of the incident, Mr. Ellis can be heard yelling, “I can’t breathe.” Mr. Ellis died in handcuffs while being restrained on the ground by officers. The Pierce County Medical Examiner’s Office has ruled the death a homicide, determining that Mr. Ellis died of respiratory arrest due to hypoxia due to physical restraint. The officers involved were placed on administrative leave after the incident and have since returned to duty. It is anticipated that the case will be forwarded to the Pierce County Prosecutor’s Office by next week. Tacoma Police Department has declined to comment on the case as it is still an active investigation. In a statement to The Tacoma News Tribune, Mayor Victoria Woodards said, “We look forward to the…swift completion of the investigation, and we will take appropriate steps based on the findings.”
Source: The Tacoma News Tribune
The staff and attorneys at Horwath Law are outraged by the horrendous
actions of the Minneapolis Police Department this week. On Monday
evening, George Floyd, a 46-year-old African American man, died after
being handcuffed and pinned to the ground by a white police officer’s
knee. Mr. Floyd pleaded with officers for several minutes, repeating
over and over that he could not breathe. The incident was recorded by
a bystander and shared on social media early Tuesday, inciting
Minneapolis Mayor Jacob Frey stated that the pinning technique used by
the officer was not permitted and was not a technique that officers
are trained on. Mr. Floyd’s death at the hands of the MPD is eerily
similar to the death of Eric Garner, who died in 2014 as a result of
a New York officer’s chokehold. Both men uttered the same words to law
enforcement prior to their deaths.
While the Minneapolis officers involved have been fired, the tragic
result of their actions cannot be undone. Police violence, harassment,
and assaults on persons of color happen far too often in our
communities. Just two months ago, officers in Louisville, KY stormed
the home of Breonna Taylor, an African-American EMT, and murdered her
in a botched investigation. In 2017, Kent Police stopped African-American man Giovann Joseph-McDade for having expired tabs. When Mr. Joseph-McDade attempted to drive away, officers shot and killed him. The department is currently being sued.
This level of tragedy and police racism may not make the news every
day, but it is ever-present in the daily lives of many people in our
community. As Criminal Defense Attorneys we are in a unique position to investigate and bring to light issues of police racism, brutality, and dishonesty. Over the years our investigations have discovered officers who have been disciplined for making racial slurs, for racial profiling during their
shifts, and for ignoring reports of bias incidents. Any racial bias on
the part of an officer is unacceptable, and as defense attorneys, our
job is to bring any type of discrimination to light. We must hold
officers accountable and push police agencies to reform. This must stop.
In all criminal cases, prosecutors are required to turn over any evidence that might help exonerate a defendant. This requirement exists because of a U.S. Supreme Court decision known as Brady v. Maryland. Exculpatory evidence that falls under this category is referred to as “Brady” material. An example of this type of evidence would be if a law enforcement officer involved in a case has a history or dishonesty, bias, or internal investigations. Despite the Brady rule, prosecutors often do not comply with turning exculpatory evidence over. A criminal defense attorney should always investigate whether the officer involved in a case has a record that could call into question evidence presented by the prosecution.
It is not uncommon for police officers to face discipline for questionable practices. In February, a Seattle police officer was terminated after he was found to have regularly engaged in recreational drug use and had a history of using slurs related to race, sexual identity and gender. In January, another Seattle police officer was fired for posting threatening rhetoric on social media. In 2019, the Aberdeen Police Department’s official statement about an officer involved shooting was questioned when surveillance video emerged contradicting the officer’s account. Last week, the Seattle Times reported that two Snohomish County deputies that were on the prosecutor’s list of officers with credibility problems were recently reinstated by the new sheriff.
Recent investigations by Horwath Law have discovered an officer with a history of lying under oath and an officer who was reprimanded for making racially biased traffic stops. Other officers in the area have been disciplined for cheating on an exam, fabricating police reports, abusing an informant, making false statements, and coercion. Some prosecutors keep lists of “Brady” officers who have sustained instances of lying on the job, but the majority do not. Defense attorneys must remain vigilant in obtaining Brady information through their own investigations.
With Horwath Law Attorneys working on your case, relevant and exculpatory evidence will not fall through the cracks. Put your trust in a defense team that goes above and beyond in fighting your case.
The Tacoma News Tribune has reported that Officials in Pierce County are currently investigating how to implement social distancing during the many jury trials that take place in the County’s courtrooms. The State Supreme Court has postponed all jury trials until July as a result of the COVID-19 pandemic. Maintaining social distancing when court resumes could prove to be a challenge. Officials have even considered off-site locations for jury selection, including the nearby Armory building, the Greater Tacoma Convention Center, and the former Kmart building in central Tacoma. Currently, there are about 1,500 criminal trials and 500 civil trials pending. The County-City Building can typically handle 12 trials at a time. With social distancing in place, that number may drop as low as 5.
Safety is a top priority in implementing any social distancing plan. Any new location would need metal detectors and other screening measures to allow entry. The County will be looking at the overall physical security of the buildings, the security of each converted courtroom, and the security of all entrances and exits. Additionally, there have been discussions of testing and screening jurors for the virus, and also requiring that everyone where a mask.
In order to comply with the public’s right to access courtrooms, the County is looking at broadcasting trials online or creating a viewing room at the courthouse, so that the public can watch proceedings and still socially distance.
Regardless of the trajectory of the virus, the County has a huge task in front of it to ensure that court personnel and jurors remain safe in the future. As Presiding Judge Garold Johnson said this week, “We have to have our jurors safe. They are absolutely essential to justice.”
At Horwath Law, we continue to stay up to date on any developments related to court operations during the current health crisis – client safety is our top priority.