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

Kauffman keeps client out of prison

Attorney Katie Kauffman came up with a huge win for her client this week, as she successfully argued he should be spared from going to prison.

Under the terms of what a state Department of Corrections officer described as a “rather unorthodox idea” for punishment that she supported, Kauffman’s client will keep his job.

At the hearing on May 24, a Clark County senior deputy prosecutor asked Superior Court Judge Derek Vanderwood to sentence Kauffman’s client to 30 months in prison.

In Washington state, crimes carry a standard range of confinement. Sentences that go higher or lower than those standard ranges are called “exceptional sentences” and judges need to articulate a reason for going outside the standard range.

Kauffman’s client had pleaded guilty to two counts of possession of depictions of a minor engaged in sexually explicit conduct in the first degree. The charges originated from a Dropbox tip to the National Center for Missing and Exploited Children, which sent it to local law enforcement.

While Washington state’s SSOSA (Special Sex Offender Sentencing Alternative) allows for treatment instead of prison, a key requirement excluded Kauffman’s client from consideration. To receive SSOSA, an offender must have an established relationship with the victim. Since Kauffman’s client looked at photographs of children he doesn’t know, he wasn’t eligible.  

Kauffman gave Judge Vanderwood several facts that supported an exceptional sentence below the standard range.

Her client had no prior criminal history and no known contact with law enforcement. He has a full-time job and support from his employer. He supports and cares for his two children including providing their healthcare benefits. The mother of his oldest child and his current girlfriend both support him. He passed a polygraph that indicated he was being truthful when he said he has not had any sexual contact with minors and has no interest. He cooperated with law enforcement and admitted to looking at the photographs.

Kauffman had her client do psychosexual evaluations with two doctors, both of whom said her client was a low risk to reoffend.

Those opinions were shared with the Department of Corrections, which also supported the downward departure from the sentencing range. In a pre-sentence investigation report, a corrections officer noted the defendant was a “young man and father, with a stable career, a supportive family and no criminal record or drug problem.” Kauffman’s proposal of work release “may be a rather unorthodox idea to which Department of Corrections might ordinarily take exception,” but in this case her client “has a history of good follow through, including with his employment, parental responsibilities, and even such simple things as keeping legal-related appointments and court dates. He came clean with investigating officers on these charges, (and) agreed to a polygraph and sexual deviancy assessment.”

Kauffman’s client, the corrections officer wrote, said he accepted the files from another individual to his Dropbox account not knowing what exactly were in the files. “He did eventually look at the files, and realized there were sexually-explicit child images in the material,” the corrections officer wrote. “He described his curiosity being ‘piqued’ and not immediately deleting the files.” He denied independently searching for sexually-explicit child images or having any actual sexual interest in children, she wrote.

One doctor noted that Kauffman’s client, who was 24 when he looked at the photographs, was medicated for ADHD from sixth grade through high school and that may have affected his neurodevelopment.

Vanderwood sentenced Kauffman’s client to one year of work release, which means he’ll be at the Clark County Work Center when he’s not at his job. He was also ordered to receive treatment and register as a sex offender. 

Cole wins split verdict in domestic violence case

Attorney Grant Cole won a split verdict this week in Clark County District Court. His client was acquitted on May 24 of fourth-degree assault domestic violence but convicted of resisting arrest.

Cole’s client was arrested at his home March 14, after his wife called 911 to report that he’d thrown a water bottle at her head. His wife went outside to meet responding Clark County Sheriff’s deputies, and Cole’s client locked the door and the garage door. Deputies found an open window and entered the home with the wife’s permission. Cole’s client had locked himself in a bedroom with his daughter, so a deputy had to break the door down. When a deputy tried to take Cole’s client into custody he fought back.

The justification for the charge of resisting arrest, a gross misdemeanor, was clear and Cole didn’t have a defense. With the charge of assault, however, Cole took a risk. While the client’s wife was on the witness stand, Cole asked her if it was true that two days prior to calling 911 she’d gone to court and asked for a restraining order and her request had been denied. She said that was true. An assistant city attorney objected to the question, and the objection was sustained, but Cole at least was able to let jurors know there may have been other factors that contributed to the wife’s decision to call 911.

On March 12, she had filed for divorce and asked for a restraining order. A judge denied her request because there wasn’t any evidence that she was in danger of being hurt by her husband. She’d wanted her husband to leave the family home, but he had no job and nowhere to go.

Two days later, she called 911 and he was arrested and booked into the Clark County Jail. 

The client’s wife testified she was in bed and had asked her daughter to bring her a glass of water. She said her husband instead came upstairs with two plastic bottles of water and yelled at her for asking their daughter to bring her water. She said he threw one bottle at a wall and the other at her head. She said she turned away and the bottle hit her in the back of the head, leaving a small bump.

Cole's client denied to deputies that he threw the bottle at her head. 

During closing argument, Cole told the six jurors (three men and three women) that there was a serious lack of evidence supporting the assault, with serious concerns about the credibility of the person making the accusation. The prosecution simply couldn't prove the assault charge beyond a reasonable doubt, he said, and told the jury it was their job to hold the prosecution to that burden of proof. 

The jury deliberated approximately 45 minutes before returning the verdict. 

At sentencing, Judge Chad Sleight went far beyond the assistant city attorney’s recommendation of 18 days in jail and ordered 60 days of confinement. 

Kauffman saves client from felony sex conviction

Katie Kauffman didn’t try and excuse her client’s behavior, which she acknowledged to a Clark County Superior Court jury was incredibly gross.

But his actions – masturbating and getting ejaculate on a woman who was next to him – constituted a misdemeanor, she argued, not a felony.

The 12-member jury unanimously agreed. After deliberating about two hours on April 24, the jury returned a verdict of not-guilty of attempted indecent liberties and guilty of fourth-degree assault.

Her client was also convicted of felony bail jump, which wasn’t a surprise because he missed a mandatory pre-trial court appearance and didn't have a reason for why he missed it. 

The fact the jury was even allowed to consider a lesser charge was a win for Kauffman. When she and a deputy prosecuting attorney were arguing about which instructions would be read to the jury before deliberations, she asked Judge Derek Vanderwood to include the lesser offense. The deputy prosecutor objected, but Kauffman convinced Vanderwood the elements of the crime met legal and factual requirements to be considered misdemeanor assault.

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Judge dismisses case for client found mentally incompetent

Attorney Neil Anderson successfully argued this week that his client’s constitutional right to due process had been violated by an unacceptably long wait time to be transported from the Clark County Jail to Western State Hospital.

At the end of the March 21 hearing, District Court Judge Chad Sleight granted Anderson's motion to dismiss the charge of fourth-degree assault domestic violence, a gross misdemeanor, over the objection of a Vancouver assistant city attorney. 

Long waiting lists for beds at Western State Hospital, an inpatient psychiatric hospital near Tacoma, has been a problem for years. The state has paid millions in fines for being unable to admit patients in accordance with court orders.

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Sloppy work by police, prosecutors makes for quick acquittal

Attorney Tim Murphy won a trial this week for a client charged with criminal trespass in the first degree, a gross misdemeanor punishable by up to one year in jail and a $5,000 fine.

After the jury was sent to deliberate, a Clark County deputy prosecutor was filling out post-conviction paperwork that wouldn’t be necessary. The jury was out fewer than 20 minutes before returning with a “not guilty” verdict.

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Crime or kink? Jury acquits man who tied up girlfriend

Attorney Zeed Meyer won a Clark County District Court trial March 9 for a client charged with assaulting his girlfriend.

Based on police reports, this did not appear to be a strong case for the defense: a woman called 911 to report that she woke up to her boyfriend pulling down her pants; her wrists had been in restraints. A responding officer photographed her bloody lip, which she said was caused by her boyfriend stuffing a pair of underwear in her mouth. She also said her boyfriend headbutted her, and, after the restraints were removed, pushed her to the ground during an argument.

So how did Meyer get a “not guilty” verdict, which was reached by the Clark County District Court jury after 20 minutes of deliberations?

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Jury quickly acquits client in hit-and-run

Attorney Ross Meyers picked up a quick victory this week in Clark County District Court, as a jury deliberated only 15 minutes before unanimously voting to acquit his client of hit-and-run of an unattended vehicle. 

Meyers’ client, who has no criminal history, could have faced up to 90 days in jail and ordered to pay an $1,000 fine if he had been convicted of hit and run unattended, a misdemeanor.

The owner of a damaged 2001 Honda Accord said she was out of town when her vehicle, which she had left parked on the street outside her West Minnehaha neighborhood home, was hit. She came home to discover that the front bumper on the driver’s side had been smashed in, and the headlight broken.

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Kauffman wins domestic violence assault trial

Attorney Katie Kauffman won a trial on Jan. 11 in Clark County District Court for a client charged with assaulting his wife.

An assistant city attorney took the case to trial despite the alleged victim making it clear that her husband had been very drunk, she’d been injured by accident and she wanted the assault charge dropped.

An assistant city attorney argued he should be able to let the jury know that Kauffman’s client had prior convictions for assault. Kauffman won that argument, however. Judge Chad Sleight said the jury wouldn’t hear about her client’s criminal history unless her client testified and made a statement (such as, “I would never hit anyone on purpose,”) that the prosecutor could then challenge by asking about past convictions.

Kauffman’s client did not testify during the one-day trial.

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"Necessity" not a defense in unlawful camping case, judge ruled

While the Vancouver City Council has been debating whether it should even be a crime to spend the day outside in public spaces, the city attorney’s office continues prosecuting homeless people cited for violating the unlawful camping ordinance.
 
The prohibitions apply during the hours of 6:30 a.m. and 9:30 p.m.
 
City Attorney Bronson Potter said a total of 227 citations were issued in 2016 and 2017. 
 
Attorney Ross Meyers went to trial this month with a client who was charged in July with unlawful camping, a misdemeanor, after a Vancouver police officer found him and his girlfriend in Waterworks Park. They had set up a tent and had their possessions with them.  A day earlier, on the Fourth of July, the client had been given notice by a different police officer that he had to stay out of city parks for a week for violating the unlawful camping ordinance.
 
In addition to unlawful camping, the client was charged with unlawful storage of property and exclusion from parks (for violating the initial notice), both of which are misdemeanors.

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Cole wins DUI trial

Attorney Grant Cole won a DUI trial recently in Clark County District Court. His client had refused to take a breath test, so he was facing a mandatory yearlong suspension of his driver’s license in addition to any jail sentence he may have received had he been convicted.

Driving under the influence, a gross misdemeanor, carries a maximum penalty of one year in jail.

Cole’s client was pulled over by a Vancouver police officer late one night because he had expired tabs and, according to the officer, had taken a wide turn onto Mill Plain Boulevard and then overcorrected to avoid hitting a curb. 

The officer testified that our client’s eyes were bloodshot and he could smell the odor of alcohol, but he wasn’t confident he had had probable cause to arrest him for DUI. He knew that a Washington State Patrol trooper, a certified expert at administering roadside field sobriety tests, was on duty and nearby, so he asked for him to come to the scene.

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