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

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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Felony assault charges dismissed; mother hopeful she'll regain custody of daughter

This morning, attorney Katie Kauffman called a client with the best possible news: Her criminal case is being dismissed. A deputy prosecuting attorney acknowledged to Kauffman she did not have sufficient evidence to prove the client abused her infant daughter. The charges will be formally dismissed in court March 21. 

It was more than two years ago, in January 2015, when the client took her then-1-month-old baby daughter to the emergency room because her left leg was badly swollen. The baby was diagnosed with a broken leg. A doctor at PeaceHealth Southwest Medical Center didn’t believe the injury was consistent with the client’s story of what happened. Vancouver police officers responded and referred the case to the Children’s Justice Center – a multiagency office that includes attorneys from the Clark County Prosecutor’s Office -- and Child Protective Services.

The client, who has no criminal history, was charged with second-degree assault of a child, a felony that carries a sentence of at least 31 months (2 1/2 years) in prison.  The charges were filed the same month she brought her child to the hospital; it’s not uncommon for prosecutors to wait months to receive more evidence before making such a serious decision.  The client, a young mother who lives with her grandparents, lost custody of her daughter, who went into foster care. In the past two years, the client has only been allowed to see her daughter once a week during supervised two-hours-long visits.

The case was scheduled for trial this month.

Understandably, Kauffman’s client burst into tears this morning and asked if this means she gets to bring her child home. Kauffman explained that will be up to the judge overseeing the dependency case, but since that case has been tracking the criminal case, it’s likely she will regain custody.

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Client found not guilty of assault in DV case

Washington has a mandatory domestic violence arrest law, meaning law enforcement officers don’t have discretion. If they have probable cause to believe that a crime may have occurred, they must make an arrest.

From that point, it’s difficult to get prosecutors to dismiss the case – even when the evidence is incredibly weak.

For example, jurors on March 8 needed only 30 minutes before they unanimously voted to acquit one of attorney Allison Widney’s clients in Clark County District Court.

Her client had been charged with one count of fourth-degree assault domestic violence and one count fourth degree assault non-domestic violence, a gross misdemeanor with a maximum sentence of one year in jail.

He was accused of assaulting the mother of his three children and her mother.

The prosecution’s case was weak to start with, but an assistant city attorney from the Domestic Violence Prosecution Center took it to trial even with the knowledge one of the alleged victims wasn’t going to show up to testify.

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Mother acquitted of assaulting adult daughter

A Vancouver mother was found not guilty this week in Clark County District Court of assaulting her adult daughter. Attorneys Katie Kauffman and Ross Meyers successfully argued that the mother acted in self-defense.

The panel of six jurors deliberated approximately 90 minutes on Feb. 9 before unanimously voting to acquit.

The daughter and her three children had been living with her mother last fall when she called 911 to report that she’d been assaulted. When police officers responded, our client was asked whether she’d been assaulted too and she only said, “That’s my daughter.”

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Prosecutor's case implodes after alleged victim recants

Attorney Hannah McCausland won a not-guilty verdict last week for a client, but she said she didn’t really have to do much other than wait while the prosecution’s case imploded.

Her client was arrested for harassment after his girlfriend accused him of threatening her, but at trial on Feb. 3 in Clark County District Court she said she lied to police officers because she was upset he wanted to take their newborn baby to his mother’s house. After officers explained to her that the baby’s father was within his rights to take the baby to his mother’s house, she accused him of making threats so officers would arrest him.

McCausland’s client denied making the threats, but he was arrested and charged with harassment, a gross misdemeanor with a maximum sentence of one year in jail. 

For a person to be charged with harassment, the victim has to be in reasonable fear the threat would be carried out. The girlfriend told police her boyfriend had previously assaulted her and she was scared he’d do it again. She also wrote out those allegations in a statement that she signed under penalty of perjury.

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