Gonzaga University School of Law, March 23, 2012

Sponsors & Contributors

Confederated Tribes of the Colville Reservation, Gonzaga University School of Law, University of Washington Indian Law Clinic, Seattle University School of Law, University of New Mexico, The Bronx Defenders, Washington Defender Association

Admission FREE to Tribal Leaders, Tribal Court Personnel and Tribal Public Defenders.
$75 for any person requesting CLE credit .
$25 contribution toward lunch optional.

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Euro-American and Indigenous paradigms of justice are frequently at odds with each other, most significantly in the area of criminal law.

This first of its kind event, aimed at tribal judiciary and tribal leaders in law and justice, will start to address and resolve these questions for Tribes: 

· What does the practice of criminal defense look like in Tribal Court?

· What are the ethical duties and standards for Tribal defenders?

· What models of Public Defense delivery are best suited to Indian Communities?

Agenda 

• 8:00 – 8:45am Registration and Coffee

• 8:45 – 9:00am Welcome and Overview

Richard Swan, Martin Bohl and Daryl Rodrigues

• 9:00– 10:00am History of the Right to Defense Counsel
Barbara Creel

• 10:00 – 10:10am Break

• 10:10 – 10:55am The Role and Value of Defense Counsel to Tribal Sovereignty and Communities
Barbara Creel and Kathleen Bowman,

• 10:55 – 11:10am Break

• 11:10am –12:10 Public Defenders: What do they do and why must they do it?
Robert Boruchowitz and Molly Cohan,

• 12:10am – 1:00pm Lunch (provided)

• 1:00pm – 2:00pm Holistic Public Defense

Alex Sierck, Robin Steinberg, Ann Sherwood,

• 2:00pm – 2:10pm Break

• 2:10pm – 3:00pm Public Defense in Indian Country.

• Ron Whitener, Brenda Williams, Magda Baker, Kristen Shotwell and Kathleen Bowman

• 3:10 – 4:00pm Small Moderated Discussion & Work Groups.

• 4:00pm Adjourn

Presenters

Magda Baker has worked as a public defender her entire career.  She has worked at both the trial and appellate levels.  Magda has been the misdemeanor resource attorney at the Washington Defender Association since 2005.  She assists misdemeanor public defenders with legal questions, compiles practice advisories and sample motions, and teaches CLEs. 

Ann M. Sherwood is managing attorney of the Defenders Office of the Confederated Salish and Kootenai Tribes and maintains a criminal caseload. During her tenure, the office has implemented an innovative in-house service for clients with co-occurring mental health and chemical dependency issues funded by the Bureau of Justice Assistance. Ms. Sherwood has been instrumental in utilizing traditional resolutions for criminal charges. In 2011, the Defenders Office received an award for technical assistance from the Center for Holistic Defense sponsored by the Bronx Public Defenders Office in New York. She is currently a Commissioner for Montana’s State Public Defender Office.

Robert C. Boruchowitz is Professor from Practice and Director of The Defender Initiative at Seattle University School of Law. Before joining the faculty in January, 2007, he was Director of The Defender Association in Seattle for 28 years. He has appeared at every level of state and federal court.  He was co-author of a NACDL publication, “Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts”. Founding president of the Washington Defender Association and a former member of the Executive Committee of the American Council of Chief Defenders, he has been instrumental in developing defender standards in Washington and nationally. He founded the Racial Disparity Project at The Defender Association. He has taught in the Youth Advocacy Clinic and among other projects has pursued due process rights for children in truancy proceedings.  He attended a two week training for law teachers at the US Holocaust Memorial Museum and he developed a seminar on Law and the Holocaust. He has taught criminal procedure. He also has been working to persuade misdemeanor courts to provide counsel at arraignment.  He was a Soros Senior Fellow working on access to counsel in misdemeanor and juvenile cases.  He is doing a similar project on a current grant from the Open Society Foundation, working in Kentucky and New Hampshire as well as in Washington. He speaks frequently on the right to counsel and ethical issues related to it.  He was a co-chair for an American Bar Association project to provide public defender training in four regions of the country. He has received the WSBA Professionalism Award, The Washington Defender Association Gideon Award, the National Legal Aid and Defender Association Reginald Heber Smith Award, the National Association of Criminal Defense Lawyers Champion of Indigent Defense Award, and the Washington Association of Criminal Defense Lawyers William O. Douglas Award.

Barbara Creel - An enrolled member of the Pueblo of Jemez, Barbara Creel is an Associate Professor of Law at the UNM School of Law. She joined the faculty in 2007, bringing an expertise in Indian Country criminal defense and federal habeas corpus law. She serves as a clinical teacher and supervising attorney in the Southwest Indian Law Clinic, where students engage in the representation of tribal people and groups in tribal, state and federal court. She also teaches Evidence, and Criminal Law in Indian Country. Professor Creel also teaches in the Indian law Summer Program at Lewis and Clark School of Law.  Prior to returning to her home in New Mexico, Professor Creel served as an Assistant Federal Public Defender (AFPD) in the District of Oregon for seven years.  She was also the Tribal Liaison for the Portland District of the U.S. Army Corps of Engineers, fostering government-to-government relations between the federally recognized Indian tribes and the federal government, regarding cultural and natural resources in the Columbia River Basin.

She is a contributing author in the 2005 revision of the Felix S. Cohen Handbook of Federal Indian Law. She writes in an area of law formed by the intersections among Indian, criminal and constitutional law.

Professor Creel has a Bachelor of Arts from the University of Colorado, Boulder and a Juris Doctorate from the University of New Mexico School of Law. She is a member of the New Mexico and Oregon State Bars.

Molly Cohan is a Supervising Attorney for the Tribal Court Public Defense Clinic at the University of Washington School of Law. She also provides training and consultation in her areas of knowledge. Ms. Cohan has over thirty years of experience in criminal law and related fields and has specialized in the areas of training, public defense, and tribal court practice. She also has expertise in the areas of clinical legal education, pluralistic court systems, and justice system development. She has worked extensively with a variety of state and tribal court systems in the Puget Sound area and the Southwest. Ms. Cohan also teaches Afghan law students and professors in conjunction with the Afghan Legal Scholars Program of the Asian Law Center and regularly presents to legal professional from around the world. She speaks frequently on the areas of advocacy skills, tribal court practice, court system development, public defense, and pluralistic court systems. Ms. Cohan was recently named as one of the Top Lawyers of Seattle by Seattle Met Magazine. She is admitted to practice in the Tulalip, Chehalis, Suquamish, Port Gamble S’Klallam, Sauk Suiattle, and Washington State courts.

Ron Whitener Professor Whitener is an Assistant Professor of Law at the UW School of Law where he is Director of the Tribal Court Public Defense Clinic and Assistant Director of the Native American Law Center.

A 1994 graduate of the UW School of Law, Professor Whitener worked as a tribal attorney for the Squaxin Island Tribe (of which he is a member) where he represented the tribal government in treaty rights defense, gaming and enterprises, and infrastructure development. He later worked at the Northwest Justice Project’s (NJP) Native American Unit in Seattle, and headed the Indian Law Clinic, a joint project between the NJP and the UW School of Law. In 2002, Professor Whitener left the NJP to become the director of the Tribal Court Criminal Defense Clinic.

Professor Whitener’s research interests are focused on the intersection of law and health issues for Native Americans. In 2006-2007 he was a Fellow of the University of Colorado, Health Sciences Center, Native Elder Research Center. He is co-investigator on several grants with the University of Washington Medical School. In 2008 he was awarded a MacArthur Foundation Models for Change grant to identify strong programs and areas of need for Washington State tribal juvenile justice programs.

Prof. Whitener is an Associate Justice of the Northwest Intertribal Court of Appeals, a Judge of the Confederated Tribes of the Chehalis Reservation, and Of Counsel with Foster Pepper PLLC. In 2009 he received the American Association of Law Schools Section on Clinical Education’s Shanara Gilbert Emerging Clinician Award, recognizing a clinician with ten or fewer years of teaching. He was designated a White House Champion of Change in 2011 for his work in tribal public defense. In 2012, he was appointed to the Indian Law and Order Commission’s Tribal Advisory Committee.

Brenda Williams is a Part-Time Lecturer at the Law School and is a Clinic Supervisor in the Tribal Court Public Defense Clinic. Prior to joining the faculty, she served for 10 years as a public defender at The Defender Association in Seattle representing clients in all areas of public defense, including juvenile and dependency proceedings. In addition to her law degree, Professor Williams received her Master of Public Administration from the University of Washington’s Evans School of Public Affairs, where she focused on policy work within the criminal justice system. 

Kathleen Bowman, a Navajo attorney, is the Director of the Office Of Navajo Public Defender. Born in Rehoboth, New Mexico, Ms. Bowman has lived in Fort Defiance, Arizona for most of her life. Ms. Bowman graduated from Anderson School of Management, University of New Mexico in 1976 and was employed by Navajo Area Indian Health Service as Deputy Personnel Officer when she entered Arizona State University College of Law in 1983. She obtained her J.D. in May 1986 and was admitted to the State Bar of Arizona in October 1986; Navajo Nation Bar in March 1987 and the State Bar of New Mexico in October 1988. Before her appointment as Director, Ms. Bowman’s previous employment included Assistant Attorney General and Attorney, Navajo Nation Department of Justice; Executive Director, DNA – People’s Legal Services, Inc.; Director, Navajo Legal Aid and Defender Office. Ms. Bowman worked as a member of the New Mexico Coalition to Repeal the Death Penalty. She is a member of NMCDLA, NACDL, Board of Directors, Arizona Public Defender Association.

Daryl Rodrigues is Public Defender for the Confederated Tribes of the Colville Reservation where he has worked since 2009. He has revitalized the public defense function for the Tribes and is trying to shift the department from providing just professional legal services to a model of service delivery which best fits and serves the community. Born in England to East Indian parents, he attended St. Edmund’s College, the oldest post-reformation catholic school in England founded in 1568. He migrated to the US in 1980 and ultimately became a citizen in 1994. He has been a member of the Washington and Federal Bars since 1994. He serves on the Washington Association of Criminal Defense Lawyers court rules committee. Prior to law, he practiced forensic psychology providing evaluations and testimony for civil commitment and other judicial actions. He served several years as an officer for the Washington Association of County Designated Mental Health Professionals. He graduated with a B.A. and M.A. in Psychology from Seattle University, a J.D. from Gonzaga University School of Law and most recently an M.B.A. Whitworth University. He is married to Lisa and has three sons ages 22, 19 and 16.

Alex Sierck is project director for the Holistic Public Defense program at Bronx Defenders. He graduated cum laude from the University of Michigan Law School in 1997, serving as Articles Editor for The Michigan Journal of Race and Law and spending his summers at the Federal Defender Office for the Eastern District of New York and at the NAACP Legal Defense Fund. Upon graduating from law school, he worked as a staff attorney at the Criminal Appeals Bureau of The Legal Aid Society in New York. He then joined New York’s Capital Defender Office where he was a member of the legal team that successfully represented the first person convicted and sentenced to death under New York’s then newly-reinstated death penalty statute in his appeal before The New York Court of Appeals. In 2000, Alex joined The Legal Aid Society’s Criminal Defense Division in Manhattan and spent the next six years representing poor people and conducting hearings and trials in all manner of criminal cases. During that time he was also a member of Legal Aid’s Juvenile Offender Team, specializing in the representation of youths charged criminally as adults. For the past several years, Alex has lived and worked in San Francisco, representing death-sentenced individuals in federal habeas corpus proceedings and capitally-charged individuals in federal court. While in California he also taught as an adjunct professor at a local law school and pursued graduate studies at UC Berkeley’s Graduate Theological Union. Alex graduated cum laude from Carleton College with a degree in philosophy and spent several years before law school working as a community worker at The Neighborhood Defender Service of Harlem.

Robin Steinberg, Executive Director of Bronx Defenders. Honored by the National Legal Aid and Defender Association for her, “exceptional vision, devotion and service in the quest for equal justice,” by the New York Bar Association for her, “outstanding contribution to the delivery of defense services,” and awarded Harvard Law School’s Wasserstein Fellowship in recognition of her “outstanding contributions and dedication to public interest law,” Robin Steinberg is a leader and a pioneer in the field of indigent defense. A 1982 graduate of New York University School of Law, Robin has been a public defender her entire career. Starting as a criminal trial lawyer with the Legal Aid of Society, continuing her career as a founding member and deputy director of The Neighborhood Defender Service of Harlem, and ultimately creating The Bronx Defenders in 1997, Robin has extensive experience in every aspect of public defense – from representing individual clients to creating a non-profit organization. Today, Robin advocates nationally and internationally for holistic representation and the community defender movement, delivering papers, conducting trainings, and hosting visitors from around the world. She currently serves on the Boards of Directors for the New York State Defender Associations, Roger Williams Law School, and the Journal of Court Innovation, as well as on the New York City Alternative to Incarceration Board and the Center for Court Innovation Internal Review Board. She is a frequent teacher of trial skills to law students and professionals and a panelist and speaker about public defense management and holistic lawyering across the country and around the world. Robin is also the author of two articles: “Unprotected: HIV Prison Policy and the Deadly Politics of Denial” (Harvard Journal of African-American Public Policy, 2005) and “Beyond Lawyering: How Holistic Lawyering Makes for Good Public Policy, Better Lawyers, and More Satisfied Clients” (NYU Journal of Law and Social Change, 2006).

REGISTRATION INFORMATION

Yes! Please register me.

Name: ______________________________________

Title: _______________________________________

Email: ______________________________________

Tribe or Organization: ________________________

Address: ____________________________________

City: State: Zip: ______________________________

Phone: Fax: _________________________________

To complete your registration, please:

1] Fax this Registration Sheet to

Fax to 509-634-2452 by March 9, 2012

&

2] Mail payment to

Office of Public Defense, PO Box 150,

Nespelem, WA 99155

NUTTY FRENCH TOAST

10-12 slices French bread (1″ thick)
8 eggs
2 cups milk
2 tsp
vanilla
1/2 tsp cinnamon

Place bread in greased 9×13 pan.  Beat eggs,
milk, vanilla and cinnamon and pour over bread.  Cover and refrigerate
overnight.  Remove from refrigerator 30 min before baking.

3/4 cup
butter softened
1 1/3 cup of brown sugar
3 TSP corn syrup
1 cup pecan
(chopped)

Mic butter, sugar and corn syrup, spread over bread.  Sprinkle
with nuts, bake uncovered 1 hr at 350 degrees.

Try butter flavor vanilla.

Oma’s Wild Rice Soup

Personal the wild rice until just barely done.  This will be done well in
advance.  You will need 2C cooked rice for this recipe, but it can handle more.
It makes about 6C of soup but the recipe can easily be doubled or
triple.

6TBs butter
1TB minced onion
1/2 cup flour
3 cups
chicken broth

Melt butter and sauté onion until tender. Blend in flour
and then gradually add chicken broth.  Cook, stirring constantly, until mixture
comes to a boil.  Boil for 1 minute and then add the following.

2 cups
cooked wild rice
1/3 cup minced ham
1/2 cup finely grated
carrots

Bring to a simmer and heat for 5 minutes.  At this point, if you
are making this ahead of time or making this to freeze STOP.

Before
serving bring back to simmer and add

3 TB chopped, slivered
almonds
1/2 tab of salt
1 cup half and half
2 TB dry sherry

Heat
to serving, garnish with parsley and serve.  It is the last three ingredients
which makes this soup so don’t omit them.  You can change the amount office,
veggies or ham to make it a very thick and hearty soup.

The Congressional Research Service puts this all in perspective.  We need to cut spending or raise taxes by $738 billion dollars in 6 months to pay all our bills for the remainder of 2011. 

What does that really mean though – well we could:

• Eliminate all discretionary spending, including defense, and then look for another $50 billion of change in the sofa OR
• Cut nearly 70% of outlays for mandatory programs like Medicare and Social Security OR
• Increase tax revenue by nearly two-thirds OR
• Some combination of the above.

And that’s just for the rest of this fiscal year!  Yes, serious stuff isn’t it?  Probably not something we should play games like chicken over either.

Timothy Geithner, treasury secretary has clearly indicated to Congress the need to raise the debt limit by mid-May for the US to meet it’s fiscal obligations, and the Republican House is leveraging their votes to gain spending cuts.

White House Press Secretary Jay Carney has called the possibility of not raising the ceiling a “catastrophic folly.”  However what does not raising the debt limit really mean?  Some would have us think that raising the debt limit really means we are just authorizing borrowing more from “Asia”  The US Government however owes money to foreign investors for sure, but it also owes debt to US pension funds and various government programs, programs essential to our parents. 

Ben Bernanke, Federal Reserve Chairman also warns the consequences of the event would be catastrophic, interest rates would soar but most significantly the US would for the first time ever – default on its loans, it’s credit rating would take a hit just as yours or mine would and high-value investors would look to the Eurozone and Asia for investments leaving the US cash strapped and with poor credit.

On a personal note – I would benefit greatly from a failure to raise the debt ceiling, assuming I was able to keep my job so my rock bottom interest rate mortgage could be paid.  The interest rates in the US would soar, while the US dollar would decline sharply, a perfect condition for me.  I’m just waiting for the dollar to drop against the pound as I have money in the UK I want to move to the US.  Combine the dollar decline with soaring interest rates offered to invest that money in the US and I could potentially realize a 20-25% gain on capital in the course of a year.  However what’s good for me isn’t good for almost anybody else.

My mother and father in law would see their investments shrink again.  Combine that with the talk of putting them on vouchers for Medicare and at 83, with a few strokes behind him, my father in law will finally change his opinion on nationalized medicine as he watches his ability to obtain or afford insurance vanish before his eyes.

My friends with small businesses and some of the small businesses I love and rely on will become as cash strapped as our country and all for what?  So politicians can play chicken with our economy?  What of US Treasuries the mainstay of our economy, when markets lose faith in them it puts all future investment at risk and hurts US Business – large and small.  Alan Greenspan was just discussing this possibility with Charlie Rose and predicted the strong possibility of a worldwide financial crash and a longer recession than we’re just climbing out of.

“Just like households have personal obligations that they have to meet, the federal government needs to meet its obligations as well. I think that not raising the debt limit would have serious, very serious implications for the worldwide economy and jobs here in America,” House Speaker John Boehner, R-Ohio, said Monday. “But having said that, we’re just not going to do the typical Washington thing, roll over, increase the debt limit, without addressing the underlying problems.”

All this is happening while as ABC news reports “Republicans leaders are reportedly acknowledging behind closed doors that they will not let the United States fall into default” but will parlay their votes into demands for a balanced budget amendment to demands for statutory spending caps to a 2/3rds voting requirement to increase taxes.

We most certainly do need to create spending cuts – and what has now been dubbed “Obamacare” was intended to do just that.  What we need is to educate ourselves, educate ourselves so we can’t be bullied, buffaloed or tricked into falling for false solutions. We could all take an hour – just one, and learn.  Please check the information out at the Peter G Peterson Foundation.  They produced a brilliant documentary I.O.U.S.A and now have one proposing some solutions.

I must confess to being a little disappointed by the presentation, however I wanted to know more and so I took advantage of the fact that they distributed his email address and shot him a short note on my Blackberry while he was talking – asking for a time to contact him when he wasn’t “on the road” but back at his offices with a little more time to spare.

Later in the week I bought the book he recently published “In the Courts of the Conqueror – the 10 worst Indian Law cases ever decided.”  I am about 1/2 way through at this point and decided to suspend calling Walter until I was finished so I could avoid asking questions which may be answered in the book itself – I’m so very grateful for the book.  Rarely have I read anything which within a few hours changes my perceptions, refines my perspective and informed me as much as the first few chapters of this book.  Amazingly enough I’ve been practicing law on an Indian Reservation for a year and a half now and while I realized that the Tribes treasure their sovereignty, I don’t think I really understood why in anything but a very abstract sense.

In the lecture Walter conceded that our American legal system frequently is just and founded upon sound logic and reason he cited Brown v. Board of Education, Wisconsin v. Yoder, and Worcester v. Georgia.  But he added that justice only truly occurs “when the law reflects and protects the needs and values of all segments of society.” and pointed out some of it’s failures:  Dred Scott, Plessy v. Ferguson, Korematsu v. United States.

In his book he covered Johnson v. M’Intosh, through which the Supreme Court used a legal fiction—the “act of discovery”—to deprive Native Americans of legal title to land they had occupied for generations.  This was for me the missing link – of course I knew that this land was occupied by Indigenous peoples for thousands of years before Europeans appeared, but I had never given a second thought to how the title to this land was legally removed and vested in the conquerors – or of how twisted the legal justifications upon which these decisions were based actually were.

Of course, now I see that the conflict between Euro-American law and traditional notions of cultural and traditional justice are not just in conflict on a values level.  There is also a strong historical-cultural-emotional component involved that is rooted in the fact that the very system which the Colville Tribal Court is based upon is the same system that forced some bands from their ancestral lands, the same system that invaded families and stole away their children and the same system that justified the genocidal practices which punctuated the history of relations between the US government and Indigenous Americans.

This was the best restaurant discovery for a long while not only because of the quality of the food, but because of the friendly atmosphere and fantastic prices as well.  Sushi.Com is located at 430 West Main, Spokane (509) 838-0630.  Just across from Huppins.  On our first trip it seemed we were sitting next to one of the chef’s sisters and so we assumed the first name basis and warm conversation between the chiefs and patrons was on that basis.  On subsequent visits, however, it was clear that the friendly first name approach was something they just do at Sushi.Com.

As I mentioned before one of the principal reasons we’ve come to like Sushi.Com so much is the reasonable pricing.  The Sushi menu ranges from about $5 to $17 for rolls, dinners from $8 to $15.  You can have a full mean of assorted sushi rolls accompanied by two teenaged boys (and their appetites) for under $60 which, the last time, also included a large sake.  As a final point their house sake is worth noting.  The sake was fragrant, tingly, light and elegant, served at what seemed to be a perfect 105 degrees.

So in closing, borrowing from Siskell and Ebert – Sushi.Com Two Thumbs Up!

1. If the vehicle is totaled in an accident, you are still responsible to pay back the full lease contract amount.  All of it, even if the insurance company gives you back less than what you owe to the dealership.  If you do go with a lease, expect to pay the additional fees for “gap” insurance which covers you for that difference between insurance reimbursement and the amount that you owe to the dealership.
2. Many times, the lease agreement will be for 5 years/60,000 miles. So, if you go over that 60,000 and keep it until the 5 years is up, you’ll pay a penalty for every mile over 60,000 miles.  Think about how many miles you put on a car each year.  Most people use well over 12,000 per year.  I bought my truck in April 2010, it’s now April 2011 and 33,000 miles later!  At a conservative $0.15 per mile that’s 21,000 miles over the 12,000 mile standard allowance or $3,150 for this year’s excess mile charge!
3. If you lose a job or experience a heavy time of financial hardship and cannot afford the payment anymore, the dealership will recover the car, sell it an auction, and if they sell it for less than you owe for the lease agreement, you will be legally responsible to pay the difference. Though this is also true for purchase contracts as well with a purchase contract you are usually not so “upside down” because of your down payment.
4. The car is never yours until the lease period is up and you chose to buy the car.  All the maintenance expense you incur is to maintain somebody else’s vehicle.
5. The car cannot be counted as an asset on a net worth or credit calculation. It is still an asset of the dealership that leased it to you.
6. Let’s look at the lifetime cost of lease versus a purchase.  Say you buy a good used vehicle at $350 a month on a 48 month contract.  Now assume the vehicle lasts you 10 years.  Your cost is $16,800.  Now multiply that by 3 for the 30 years you’ll probably regularly use a car, that’s $50,400.  Now imagine if, instead, you decide to lease a car for the entire 30 years paying $350/mo at first you’d think the cost is just $126,000 (350x12x30) or a little over double that of purchasing – you’d be wrong. If you put $350 a month in a mutual fund that made 10% for 30 years you’d have $791,171 in 30 years.  Subtracting the cost of purchase ($50,400) from the potential investment earnings ($791,171) is $740,771. Are you willing to pay 0.74 million dollars for the warm fuzzy feeling of always driving a new car? I’m not.
7. If you decide to take the option to buy the car at the end of the lease term, you’ll have paid much more than the cost of the car even if you had financed it and the cost over a lifetime of driving is staggering.

Warren Buffet drives around a used pick-up truck during much of his personal time. He has lived in the same house that he bought about 30 years ago. Wealthy people know that possessions are a horrible investment that never buy the happiness they promise and spend accordingly.

Mr. Circle was convicted of an offense with a Domestic Violence enhancement.  The Tribal Code is stern on the issue of Domestic Violence, and has some stern provisions.  For example a person convicted of a domestic violence enhanced crime faces mandatory minimum sentences, the prohibition of good time credit to their sentences.  What it does not say is that a defendant is not entitled to credit for time served prior to sentencing.

Mr. Circle was convicted and at sentencing the Judge refused to grant credit for his pre-trial confinement.  On appeal the appellant pointed out that statutes are to be given their plain meaning in that when something isn’t mentioned in a piece of legislation one is compelled to assume that it was omitted deliberately.  In addition and perhaps more persuasively the appellant argued that to deny credit for time served has the effect of punishing the poor more than those who can afford pre-trial release.

As an example, say Bob is a wealthy farmer and Tony is an unemployed mill worker.  Bob and Tony are both arrested for a domestic violence crime on January 1 2011.  At arraignment they are both subjected to $5,000 bail.  Bob’s wife gets cash and bails him out, Tony sits in jail because all he can raise is $125.  Bob and Tony are sentenced on March 1st 2011 and both receive a 180 day mandatory minimum sentence.  When they are released 6 months later Bob the wealthy has served 180 days + the one day he served before being arraigned and bailing out.  Tony on the other hand serves 180 days + the 60 he served in jail because he was unable to make bail.

Washington avoids this issue by codification of the common law.

(6) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced. RCW 9.94A.505(6)

As soon as the opinion is published the Tribal Members of the Colville Reservation will have one more arena in which equal protection is granted to them.

This entry contains no information protected by Attorney Client Privilege, every item of fact presented is a matter of public record.

The appeal was on behalf of a Colville Tribal Member who had been sentenced to 180 days of which 90 was permitted to be served on electronic home monitoring (EHM).  In the Colville system as with all others, EHM has expenses and they are taxed against the defendant.  In this circumstance Mr. Lambert entered into some unwritten agreement with a former probation officer by which he could pay for the EHM at a later date but did actually serve the 90 days of home confinement.  However Mr. Lambert never did do the 90 days of jail time.

The Department of Probation and Parole asserted he had never paid for the EHM and argued that the 90 days of time served on EHM should not count.  When the matter came before the Trial Court the Court remanded him to serve all 180 days refusing to grant credit for the 90 days already served on EHM.  The waters were muddied by the fact that a court clerk had annotated Mr. Lambert’s judgment and sentence.

The Court of Appeals noted that there was nothing in the Judgment and Sentence which indicated he had any obligation other than to serve the 90 days on EHM which he had.  They pointed out that to impose an additional requirement afterwards violates due process and does not afford the defendant the opportunity to be heard on the issue.

Further the Court of Appeals suggested that the proper remedy would be a civil proceeding to obtain a judgment for the monies owed to the Probation and Parole department.

More details later then the opinion is issued.

The Appellate Court reversed and remanded so the Trial Court could issue an order which conformed to the appellate court’s ruling.  The Appellate Court showed considerable concern that the defendant be released immediately as they were concerned he was already serving the unauthorized portion of his sentence.  Melissa V. Simonsen, acting prosecuting attorney for the Tribes submitted a joint instruction to the Corrections Facility requesting Mr. Lambert’s immediate release.

It isn’t often a defense lawyer takes an issue to appeal and has it result in the immediate release of their client.  Credit goes to the concern of the Justices of the Court of Appeals.

This entry contains no information protected by Attorney Client Privilege, every item of fact presented is a matter of public record.

Oddly enough they have all referred me to the “unsubscribe link” in her email which, in reality, is just a link to the subscribe page for her email list.

If you try to leave a message via her website there is an unsubscribe options which – if you check it – guess what is at the bottom of the form?

Select unsubscribe and you receive a message to unsubscribe prior to sending your message?  How do you do that, the website won’t register anything unless you click “Send Email”

Thanks Ms. McMorris Rogers – for treating my email privacy no better than any internet marketer.

The US Supreme Court, in what I consider to be a blindingly bad opinion, ruled yesterday that a criminal suspect must explicitly invoke the right to remain silent during a police interrogation, a decision that dissenting liberal justices said turns the protections of a Miranda warning “upside down.’’