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Legal news and analysis from the largest criminal defense firm in Southwest Washington, Jeffrey D. Barrar, P.S.

Anderson, Spencer win felony DV trial

Attorneys Neil Anderson and Marina Spencer won an acquittal March 9 in Clark County Superior Court for a client charged with trying to strangle his girlfriend.

A 12-member jury deliberated an hour before returning a “not guilty” verdict on two charges of domestic violence.

The client was charged with assault in the second degree, a felony, and assault in the fourth degree, a gross misdemeanor. Had he been convicted he would have received a minimum sentence of three months in jail, and a maximum sentence of nine months in jail.

The client, 41, has no criminal history.

On Nov. 27, 2020, he called 911 and told the dispatcher that his girlfriend had hit him during an argument and he needed her to leave the house. The alleged victim called 911 after he called. She told the dispatcher, after a few minutes, her boyfriend grabbed her hand and neck.

Responding officers from the Vancouver Police Department arrested our client after speaking to his girlfriend, who claimed her boyfriend had grabbed her around her neck and tightened his grip during an argument about money. She said she had not been able to breathe for 30 seconds, and had been scared. She was crying when she spoke to officers.

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Cognata successfully argues against post-conviction GPS monitoring

Attorney Amber Cognata recently convinced a Clark County District Court commissioner to reconsider ordering an indigent client to pay for post-conviction GPS monitoring.

Commissioner Todd George initially granted a Vancouver assistant city attorney’s request for the GPS monitoring during a Jan. 31 sentencing hearing, but said his order would not go into effect until Cognata had a chance to argue it.  Cognata’s client had pled guilty to one count of harassment and one count of violating a civil antiharassment protection order, both gross misdemeanors.

At the time of the plea, her client had served 34 days in jail. The city prosecutor did not ask for additional jail time even though gross misdemeanors carry a maximum penalty of 365 days in jail.

In her subsequent motion contesting the judge’s decision, Cognata wrote that the GPS monitoring authorized by state lawmakers was meant for pre-trial monitoring and not to be imposed as part of a sentence.

The pre-trial GPS monitoring was part of the Tiffany Hill act. Defendants pay for the monitoring and domestic violence victims are notified if their alleged abusers come within a certain distance.

In Clark County, the service is provided by 2 Watch Monitoring. Defendants pay a $100 setup fee and $20 a day, Cognata wrote. Imposing GPS monitoring for six months would cost her client approximately $3,700 while a year would cost approximately $7,200.

For clients such as hers, who are given court-appointed attorneys because a judge finds they cannot afford to hire one, paying thousands of dollars for post-plea monitoring would often be impossible, Cognata wrote.

“There is no statutory authority to impose GPS monitoring post-plea,” Cognata wrote. “The agreed upon sentence was an offer for credit for time served, which totaled 34 days in jail. GPS monitoring was not a condition imposed in lieu of earned release time or imposed as part of his sentence, but instead an additional condition of his sentence. The protected parties in this case received the benefit of GPS monitoring while (her client) was out of custody and his charge was pending. Now that he has served his sentence, he should not continue to be monitored for the entirety of his two-year probation. Post-plea, the victims in this matter will still be protected through anti-harassment orders and a no-contact order.”

If her client was ordered to pay for monitoring and unable to afford it, he would likely be penalized for violating probation and be sent back to jail. “This kind of outcome was not the intent of the legislature when this bill was created,” Cognata wrote.   

The assistant city attorney argued the court has broad discretion to impose conditions of probation, and that includes conditions meant to prevent the future commission of crimes.

During a Feb. 10 hearing Commissioner George found that the client’s indigency was good reason not to order monitoring and removed it as a condition of probation.  

Anderson wins trial for client accused of sexual abuse

Attorney Neil Anderson won a trial Dec. 9 for a client charged with five sex offenses stemming from recent accusations he abused his half sister years ago.

The trial began Dec. 6 in Clark County Superior Court. Anderson was assisted at trial by attorney Ricky Tucker.

The 12-person jury deliberated about two hours before unanimously agreeing to acquit the client on all charges: one count of rape of a child in the first degree and four counts of child molestation in the first degree.

The charges were based on allegations, made in December 2019, that the client abused his half sister multiple times in 2014.

A conviction would have carried a minimum sentence of 20 years in prison.

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Kauffman wins sexual assault trial

Attorney Katie Kauffman won a trial in Clark County Superior Court last week for a client whose charges were upgraded from a misdemeanor to a felony after he refused a deputy prosecutor’s plea offer.

The client, 43, was arrested in January 2020 by Clark County sheriff’s deputies for assault in the fourth degree with sexual motivation, a misdemeanor. His arrest was based on an allegation from a family friend who had been spending the night.

She told deputies that she woke up in the middle of the night when the client was touching her butt. The alleged victim, 22, said the client touched her on the outside of her pajama pants.

Our client denied any inappropriate touching and said he simply put a blanket over the woman.

When he refused to plead guilty to the misdemeanor charge in District Court, a deputy prosecutor attorney filed a new charge of indecent liberties in Superior Court.

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Arefi-Pour wins District Court trial

Attorney Leila Arefi-Pour won a trial in Clark County District Court this week for a client charged with misdemeanor assault and harassment.

Jurors deliberated approximately 45 minutes on June 15 before returning the not-guilty verdicts.

Harassment and fourth-degree assault, both gross misdemeanors, carry a maximum sentence of one year in jail each.

Arefi-Pour’s client was arrested May 2 after two of his roommates alleged he had pushed one of them and threatened another during an argument.

Both alleged victims testified at trial that the argument broke out over where to smoke in the shared apartment and that during the argument, Arefi-Pour’s client hit one of them and threatened bodily harm to the other. However, over the course of questioning by prosecution and defense, numerous inconsistencies in both alleged victims came out which Arefi-Pour was able to effectively highlight.

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Attempted murder charges dismissed due to client's mental illness

Attorney Katie Kauffman got an attempted murder charge dismissed for a client whom doctors for the state and defense agreed was mentally incompetent to stand trial.

A Clark County deputy prosecutor dismissed the criminal charge on June 11. The client remains at Western State Hospital in Lakewood, Wash., where he may be stay pending an evaluation to determine whether he should be civilly committed. 

Kauffman’s client, 42, was arrested in August 2020 by Vancouver police officers after allegedly stabbing a man outside Living Hope Church. The stabbing victim worked for the church, helping manage what was described in police reports as an “improvised tent village.” Kauffman’s client had been among those sleeping in tents outside the church.

He was charged with attempted murder in the first degree, a class A felony punishable by a minimum of 15 years in prison.

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Highberg wins assault trial

Attorney Gregger Highberg won a not-guilty verdict in Clark County District Court for a client accused of assaulting a roommate.

The May 24 verdict meant his 25-year-old client not only avoided a conviction for misdemeanor assault, but was able to accept a job offer that had been pending the outcome of her case.

At the time of her arrest, the client had been renting one floor of a three-floor townhome from the alleged victim and his wife. The alleged victim’s wife called 911 at approximately 11 p.m. on Oct. 21, 2020, and said her husband had been in an argument with their roommate and he was bleeding from his face.

Deputies from the Clark County Sheriff’s Office interviewed Highberg’s client, the alleged victim and his wife. They learned the alleged victim and his wife had been drinking all day, and our client had joined them in the evening. At some point Highberg’s client and the alleged victim started arguing; the client told deputies the alleged victim called her a racial slur and demanded she leave.

She said the alleged victim swung at her twice, missing both times, and in self-defense she picked up a bottle of Jameson Whiskey and threw it in his direction. She said she did not mean to hit him, but the bottle connected with his head, causing a laceration described as between one and two inches long. It ended up requiring five staples and he was diagnosed with a concussion.

Had Highberg’s client been convicted, the alleged victim could have asked to be reimbursed the cost of his medical bills.

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As District Court trials resume, Liss wins quick acquittal

Trials in Clark County District Court resumed this month after being on hold due to the pandemic, and attorney Stephen Liss wasted little time picking up a not-guilty verdict.

A jury needed only 15 minutes to deliberate after hearing the evidence in the March 10 trial.

Liss’ client was accused of domestic violence assault against his adult son. The client, 48, was arrested in November after his wife called 911 to report he had locked her out of the house and she had called their son, 29, to come over and help her get into the residence.

The wife, who did not show up to testify at trial, told the 911 dispatcher she wanted deputies to come because she said her son was “trying to detain” his father. When asked by the dispatcher if anyone had been assaulted she said no.

Arriving deputies from the Clark County Sheriff’s Office found the father and son in the backyard. The father was on the ground and his son was sitting on top of him.

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State Supreme Court finds strict liability drug law unconstitutional

Washington lost the distinction of having one of the strictest drug laws in the nation on Thursday, when the state Supreme Court ruled it unconstitutional.

In a 5-4 decision, the state’s high court said the state’s strict liability law for felony drug possession went beyond the state’s policing power.

The ruling, State V. Blake, was in a case out of Spokane County. A defendant arrested for a non-drug crime was searched at the county jail, and a corrections officer found a small baggie of methamphetamine in a coin pocket of her jeans. At trial, she used a “those weren’t my pants” defense. Her attorney said it was a case of unwitting possession. The defendant testified a friend had given her the jeans two days prior to her arrest, and had bought them at a secondhand store.

Prosecutors did not prove that the defendant had known the drugs were in her pocket.

Under state law, possession of a controlled substance is a felony punishable by up to five years in prison. A person found guilty can also be ordered to pay a substantial fine and, as a convicted felon, lose rights and opportunities, the court noted.

“This case presents an issue of first impression for the court,” wrote Justice Sheryl Gordon McCloud in the majority opinion. “Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes – this exceeds the State’s police power.”

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Charge dismissed against protester

Attorney Daniel Mellen, who was appointed last year to represent one of the protesters arrested in downtown Vancouver, successfully argued earlier this month for the criminal charge to be dismissed.

His client, along with several other protesters, were arrested on Oct. 30 and charged with failure to disperse, a misdemeanor.

As reported at the time, the protests were in response to the fatal police shooting of Kevin E. Peterson, Jr.

In a pre-trial motion, Mellen argued the charge should be dismissed because prosecutors have insufficient evidence to prove a crime had been committed.

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Jeffrey D. Barrar, P.S.: Vancouver Defenders Jeffrey D. Barrar, P.S.
Vancouver Defenders