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

Council questions proposal for public defender's office

The Clark County Council has hit “pause” on a proposal to start a county public defender’s office.

Last week, contract defense attorneys – who were wondering why the county hadn’t put out its usual calls for supplemental contracts to make sure felony cases would be covered through the end of the year – were told the county would be starting a small public defender’s office. The Clark County Council would approve the plan at its July 18 meeting and it would be effective Sept. 1. The county would hire two full-time attorneys to join its indigent defense coordinator in handling a portion of felony cases; the three attorneys would be assisted by a part-time legal assistant.

The day before the July 18 council meeting, Indigent Defense Manager Ann Christian pulled the item from the agenda and said it would be set over a week.

On July 19, Christian met with councilors and explained she pulled the request because she first wanted to meet with Clark County Superior Court judges. She said she met with the judges and answered their questions. She told councilors she would like her proposal to be on the July 25 agenda.

But that wasn’t the end of the discussion, and the proposal, which Christian emphasized to councilors was net neutral, won’t go to a vote July 25. Instead, the councilors first want a work session with Christian to have a broader discussion about indigent defense services. That work session has yet to be scheduled.

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Clark County to start (small) public defender's office

Update: On July 17, the item was pulled from the July 18 agenda and set over to the county council's July 25 meeting. 

For the first time in nearly 40 years, Clark County will once again have a public defender’s office.

The title on the July 18 Clark County Council agenda sounds dull – “Request approval of the net neutral reorganization of the Indigent Defense Office” – but the action marks a significant shift in how the county meets its mandate to provide public defense services.

County councilors are expected to approve the proposal, which, according to a county staff report, has been vetted by the deputy county manager, the budget office director and the human resources director.

According to the report, the proposed reorganization is the first and second steps in a process “to change Clark County’s indigent (public) defense system from an exclusively independent contractor-based system to one with a strong base of attorney and paraprofessional county employee staff.”

The proposal adds two full-time attorneys and a part-time legal assistant to the indigent defense office, which currently oversees the private attorneys and law firms (including ours) that contract to provide legal services. Also, it reclassifies the current indigent defense coordinator position to a “senior public defender” who will take a partial felony caseload in addition to supervising the two new attorneys and keeping some of the current administrative tasks.

In all, that’s three county employees who will be defense attorneys. They will handle a total of 327 felony cases next year, or an estimated 13 percent of the felony caseload, and earn salaries comparable to deputy prosecuting attorneys. 

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Fight against routine pretrial shackling front-page news

A front-page story in the June 18 edition of The Columbian summarized our fight to get local judges to follow the 9th Circuit Court's ruling that routine pretrial shackling is a violation of the Fifth Amendment. 

The article, "The case for and against shackles," included responses from the Clark County Jail Chief Ric Bishop, Clark County Prosecuting Attorney Tony Golik, Superior Court Administrator Jeff Amram and District Court Administrator Ela Selga. 

It also included quotes from our managing partner, Christie Emrich, who told the newspaper, "Our opinion is the 9th Circuit was very clear, and a judge needs to make a determination, an individualized decision regarding each defendant and whether or not that person should be in shackles and if there are less restrictive means." 

Golik said the issue of whether an inmate should be shackled is up to the judge, but as a "partial solution" he's advocating for expanding video conferencing to Clark County Superior Court so inmates wouldn't have to be brought to court from the jail for first appearances and arraignments. 

The article did not, however, address how much that might cost. Expanding the use of video conferencing would require substantial upgrades to an old jail, particularly for Superior Court matters when defendants are facing serious felony crimes and need access to their attorneys. 

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Update on shackling -- with bonus editorial cartoon

A day after we wrote about a Clark County judge saying the 9th Circuit ruling on routine pretrial shackling doesn't apply to Washington state courts ... well, we're not sure there's a consensus among our local elected judges at the courthouse. Even the judge who said the ruling didn't apply was unshackling defendants today. 

On this morning's docket, presiding Clark County District Court Judge Kelli Osler called our attorney, Tim Murphy, up to the bench and told him that she planned to make rulings about each individual on the docket, per the 9th Circuit ruling. Murphy asked if that's what's going to happen from now on and Osler said she wasn't sure.

But in Clark County Superior Court, our attorney Katie Kauffman asked Judge Robert Lewis to make individual determinations about shackling and he said he wasn't going to do that because the 9th Circuit ruling wasn't applicable.

This afternoon, District Court Judge Darvin Zimmerman agreed to have custody officers unshackle a defendant who has no prior criminal history. Zimmerman was the judge who ordered defendants unshackled on June 12 but then changed his approach June 13 and said the ruling didn't apply. 

Our firm is committed to seeing that the 9th Circuit's ruling, which said that routine pretrial shackling is a violation of the Fifth Amendment, is applied in Clark County courts. 

In the meantime, please enjoy an editorial cartoon by one of our attorneys, Neil Anderson. 




Local judges say "no shackling" ruling doesn't apply to Clark County

A May 31 ruling from the U.S. Court of Appeals for the Ninth Circuit that pretrial defendants can’t be routinely shackled in court doesn’t apply to Clark County Superior and District Court, a Clark County judge said Tuesday.

The 9th Circuit, based in San Francisco, has jurisdiction over federal courts in Washington, Oregon, Alaska, Arizona, California, Hawaii, Idaho, Montana and Nevada.

In the widely-reported ruling, a majority found that routine pretrial shackling used in courtrooms in the Southern District of California was a violation of a person’s Fifth Amendment right to be free of unwarranted restraints and that defendants should not be routinely shackled "like a bear on a chain." 

The ruling said judges must determine, on a case-by-case basis, which defendants need to be shackled for security purposes and can’t just turn over the decision to officers who provide security in the courtroom.

In Clark County, Clark County Sheriff’s Office custody officers routinely use full restraints on defendants when they escort them from jail to court. As described in the 9th Circuit’s opinion, “full restraints” means “that a defendant’s hands are closely handcuffed together, these handcuffs are connected by chain to another chain running around the defendant’s waist, and the defendant’s feet are shackled and chained together.”

On June 12, defense attorney Jeff Barrar raised the “no-shackling” issue with Clark County District Court Judge Darvin Zimmerman at the start of the afternoon docket. Zimmerman ordered custody officers to unshackle everyone. Custody officers then decided to bring inmates over from jail one at a time and the docket ran longer than normal.

By the next morning, Zimmerman changed his approach to the issue. One of our attorneys, Hannah McCausland, asked him about the shackling of defendants, and Zimmerman said he met with other judges and they decided that the ruling didn’t apply in Clark County.

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Son found not guilty of threatening to kill mother

Attorney Katie Kauffman successfully defended a client Friday against charges he threatened to kill his mother.

A jury deliberated about 25 minutes in Clark County District Court before voting to acquit Kauffman’s client of telephone harassment, a gross misdemeanor.  Prosecutors initially charged him with harassment. An assistant city attorney from the Domestic Violence Prosecution Center amended the charge the morning of trial to telephone harassment. Under the definition of the latter crime, the prosecution doesn’t have to prove the defendant put a victim in fear that a threat would be carried out.

Instead, the prosecution only had to prove that a threat was made over a telephone and the defendant’s intent was to harass or intimidate the victim.

Even with the bar lowered, it couldn’t be cleared by the prosecution. 

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Prosecution's witness proves helpful for defense

Attorney Neil Anderson won a trial April 13 in Clark County District Court. Surprisingly, he was assisted by a witness called by the prosecution whose testimony ended up helpful for the defense.

Anderson’s client was charged with fourth-degree assault domestic violence, a gross misdemeanor, for allegedly pushing his wife to the ground at their residence. Prior to the alleged altercation, the client and his wife were at a friend’s home. The friend testified at trial that he saw Anderson’s client angrily chase his wife and try to hit her, much to the shock of witnesses. The alleged victim also recounted the events for jurors, claiming her husband was holding their baby’s car seat (with the baby in it) and trying to hit her with it while at the friend's home. 

Everyone agreed that Anderson’s client was the first to leave the friend's home. The wife and friend testified that the wife soon followed and went home.

During closing arguments, Anderson asked jurors to consider if the wife’s decision to follow her husband made any sense. If his client had really been so angry, why would she follow him home?  

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Jury doesn't believe convicted liar, acquits Kauffman's client

Attorney Katie Kauffman has won again, this time representing a defendant for whom a conviction could have resulted in not only jail time but deportation.

Attorney Kevin O’Brien assisted Kauffman at trial, which was April 13 in Clark County District Court.

Her client was charged with fourth-degree assault domestic violence for allegedly hitting the mother of his children in the face. There were no independent witnesses, and Kauffman was well-positioned to cast doubt on the alleged victim’s credibility.

First, the woman has a 2006 conviction for filing a false police report. Typically, judges rule that convictions older than 10 years cannot be used to try and discredit a witness. However, the judge in this case said that because the conviction was just three months past the 10-year mark, and there weren’t other witnesses the alleged victim’s credibility was a key issue and the jury should be able to consider that she has a conviction for lying.

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Client found not guilty violating no-contact order

Whitney Hawke recently successfully defended a client against charges he twice violated a no-contact order by calling his girlfriend from jail.

Violation of a no-contact order is a gross misdemeanor punishable by up to one year in jail; a conviction for the crime can also preclude people from legally possessing firearms.

The March 24 trial in Clark County District Court appeared to be a slam-dunk case for the prosecution.

A Vancouver police detective assigned to the Domestic Violence Prosecution Center wrote in his probable cause declaration that he was listening to recordings of phone calls made by inmates at the Clark County Jail as part of his daily duties when he heard a call between an inmate and who he assumed was the inmate’s girlfriend. He knew there was a no-contact order, and he checked a discovered a second call between the inmate and the woman. The calls were made from the inmate’s assigned account to a residence where he had been living with his girlfriend.

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Woman acquitted of assaulting ex-husband

Attorney Katie Kauffman won a not-guilty verdict for a client accused of assaulting her ex-husband.

Gregger Highberg, the newest attorney at our firm, gained experience by assisting Kauffman during the March 23 trial in Clark County District Court.

Kauffman’s client has no criminal history. She was arrested in December after her she called 911 to report that her ex-husband was getting violent. The client has full custody of their son and daughter; she filed for divorce after her husband pleaded guilty in 2011 to child molestation in the third degree and was sentenced to prison. (The victim in that case was a young teenage girl, not one of the couple’s children.)

In December, she went to her ex’s apartment because he had told her he had some presents for their son. Then he refused to give them to her. She called 911 twice. The first time, she told the dispatcher that she was trying to pick up her son’s belongings and her son’s father wouldn’t give them to her. The second call, she clearly sounded panicked and said her ex is getting violent and that she tried to push him away from her and he told her she would be going to jail because he had scratches on his arm.

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