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

Winning a loser of case

All clients have a constitutional right to go to trial. Some clients elect to go to trial on cases that appear, at least to the attorneys, to be unwinnable.

But when the prosecution has to prove its case, sometimes it can fall short for unexpected reasons.

On June 8, defense attorney Whitney Hawke took what seemed to be a loser of a case to trial in Clark County District Court, but ended up with a win. Jurors unanimously agreed with a point Hawke emphasized during her closing argument, which was that an assistant city attorney failed to prove a basic element of the crime.

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No visible injuries + no victim = no conviction

Despite knowing that the victim in a domestic violence assault case was not planning to attend trial May 18 in Clark County District Court, an assistant city attorney went forward with the case because he had an eyewitness to the alleged incident.

The eyewitness testimony wasn't convincing enough for the jury, which voted unanimously to acquit attorney Katie Kauffman's client of fourth-degree assault, a gross misdemeanor punishable by up to one year in jail and a $5,000 fine. 

Kauffman's client was arrested Feb. 19 after the eyewitness, who was working at a gas station, reported seeing the defendant and her boyfriend in a fight. The victim told a responding police officer that he had not been assaulted or placed in fear of being assaulted. 

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Young mother found not guilty of assaulting ex boyfriend

On April 20, a Clark County District Court jury needed only 18 minutes to decide our client was not guilty of fourth-degree assault domestic violence.

Our client, a 19-year-old mother, admitted during her trial that she became hysterical last fall when the father of her seven-month-old baby was preparing to leave with the baby in his mother’s vehicle that was equipped only with a front-facing car seat built for toddlers and not the rear-facing type of car seat recommended by the American Academy of Pediatrics and the National Highway Traffic Safety Administration.

But she did not, she said, hit her ex-boyfriend in the face, as he and his mother had claimed to Clark County sheriff’s deputies who responded to the 911 call.  

During jury selection, defense attorney Katie Kauffman asked potential jurors about how far they would go to protect a child from a potentially dangerous situation.

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Pared-down defense enough for an acquittal

I recently received a not-guilty verdict on a fourth-degree assault case in Clark County District Court. My client was accused of punching his neighbor and throwing bricks at his neighbor’s property. My client maintained his innocence throughout the process, from his initial conversations with police officers all the way through to the day of trial, which was March 11. 

His case was challenging because, despite scarce physical evidence that any crime had been committed, a jury may find it difficult to believe that someone would simply call 911 and make up the allegations. We did, however, have ample evidence to show that this was not the first time that the alleged victim had manipulated the court system to try and get my client in trouble. Unfortunately, a judge ruled against us in a pre-trial motion and so we were unable to show jurors evidence of the alleged victim’s biases and motive.

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Helping jurors stay focused key to not-guilty verdict

Attorney Hannah McCausland won a not-guilty verdict for a client accused of assault, and after her Feb. 26 win in Clark County District Court she said a key to winning the case was asking the judge to read what’s called a Petrich instruction to the jury.

The Petrich instruction was named for a defendant who was charged with committing the same crime on several distinct occasions. Petrich’s conviction was overturned on appeal because the jury did not unanimously agree on which of the alleged acts had been proven beyond a reasonable doubt.

That violated the defendant’s right to a unanimous jury verdict, appellate judges ruled.

In McCausland’s case, her client was charged with fourth-degree assault domestic violence, a gross misdemeanor punishable by up to one year in jail and a $5,000 fine. He had also been charged with attempted unlawful imprisonment, a gross misdemeanor, but a Vancouver assistant city attorney dismissed that charge on the morning of trial.

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A successful self-defense case

A Clark County District Court jury deliberated only 30 minutes last week before returning a verdict of not guilty in a misdemeanor assault case.

My client, who was charged with assaulting his brother, had admitted to police that he hit his brother in anger because his brother had wrecked his vehicle.  A witness indicated she did not see the assault, but did see my client raise his fist toward the alleged victim.  When I first met with my client, he told me that his brother had advanced on him and he only struck him in self-defense. So that was going to be our defense at trial.

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Clark County to pay $60,000 for violating state public records law

As reported by The Columbian last month, one of our criminal defense attorneys had success as a civil litigant: A Clark County Superior Court judge ordered the county to pay attorney Neil Anderson $35,000 after finding the Clark County Sheriff's Office violated the state's public records law.

Anderson, who received his money this week, was represented by Vancouver attorney Greg Ferguson. After being ordered by Judge Robert Lewis to pay Ferguson's legal fees, the county agreed to pay him $25,000.

So in total, that's $60,000 the county has to pay for what Lewis described as "gross negligence" on the part of the sheriff's office. 

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Quick not-guilty verdict highlights importance of voir dire

An important aspect of trials not often depicted in legal dramas is voir dire, when attorneys question prospective jurors. The questions are designed to weed out people with biases, highlight people capable of ensuring the defendant's right to a fair and impartial jury and to help prepare the jurors for the issues they will hear during the trial. 

The French phrase "voir dire" means "to speak the truth," and that's all attorneys want from prospective jurors. 

On Dec. 3, attorney Hannah McCausland won a trial in Clark County District Court after the six-member jury deliberated fewer than 10 minutes. During voir dire, she questioned prospective jurors on their thoughts regarding central issues in the case, namely arguments among family members and the stress and panic a parent experiences when a child -- no matter how old -- is missing. 

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Weak case, quick acquittal

Washington is among more than 20 states with a mandatory domestic violence arrest law, which takes the discretion away from police officers who respond to calls involving romantic partners, family members or roommates. If somebody claims to be a victim of an assault -- even a minor assault that left no scratches, red marks or bruising -- an arrest must be made. 

One consequence of mandatory arrest laws, though, are cases with little to no physical evidence. Sometimes these cases get dismissed before trial, but other times prosecutors want to let a jury decide whether a crime was committed.

And that's what happened on Dec. 18, when attorney Zeed Meyer won a trial in Clark County District Court. How weak was the prosecutor's case? The six-member jury deliberated only 10 minutes before announcing it had reached a verdict: not guilty.

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A "reckless" win

A young man was charged with reckless driving in a recent case, but I successfully defended him in Clark County District Court last month by arguing to the jury that the crime of reckless driving has specific elements the state could not prove beyond a reasonable doubt.

A Clark County sheriff's deputy pulled my client over after witnessing him driving in the center turn lane on State Route 503 and passing some vehicles travelling in the same direction before merging over. The deputy sheriff was correct in that center turn lanes are not to be used as passing lanes. My client indicated that he was not trying to pass any cars, he was trying to speed up to the general pace of the traffic prior to merging. What the officer did not witness was how my client came to be in the center turn lane.

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