An open letter to Representative Beutler

Dear Representative Beutler:

I am a long time resident of Southwest Washington and currently provide indigent defense services for felony criminal cases in Clark County. I write regarding your recent visit to the Clark County jail.

I appreciate your efforts to bring additional resources to take pressure off of jail staff and personnel. They usually do a darn good job and are clearly suffering from lack of resources. Your time to meet with them is greatly appreciated.

I handle approximately 100 felony cases a year under the contract, and a substantial number of retained cases as well. I have represented more mentally ill and drug addicted people than I can count. These issues are at the core of our modern understanding of criminal justice.

However, there really is much more to the story of how and why so many mentally ill or drug addicted people end up in jail. I am curious if you would be willing to meet with representatives of the Clark County indigent defense bar to discuss the situation from a different perspective.

I am specifically concerned with a number of issues and financial incentives for law enforcement and prosecution, including:

The exceptionally high proportion of people held in the Clark County Jail on high bails for non-violent offenses pre-adjudication (or people in jail before they get their day in court because they are too poor to bail out);

The high number of people held in the Clark County Jail post-adjudication for misdemeanor probation violations;

The disproportionate amount of resources devoted to drug crime prosecution (lots of prosecutors, prosecuting down to residue levels) compared with the level of resources devoted to non-violent crimes with real victims (relatively few prosecutors), a practice I believe stems from grant money given for drug prosecutions;

The complete lack of follow-on services available for indigent defense practitioners to provide to clients when a case is complete; and

The legislative decision to remove discretion from local law enforcement in domestic violence investigations at the risk of losing federal funding.

In short, while I thank you for taking the time to visit the jail, I hope you’ll spend a similar amount of time with those of us working on the other side of the issues. I would be happy to arrange a meeting of local defense attorneys and yourself to discuss these and many other issues.

Respectfully,

Shon W. Bogar
WSBA 41764

***

I wrote Representative Beutler what’s above shortly after The Columbian noted her tour of the jail (see here: http://www.columbian.com/news/2017/apr/13/herrera-beutler-tours-county-jail/ ). I posted it on The Columbian’s website as a response, something that has since been taken down. Maybe it was too long? I don’t know. Anyway, no response yet from the Representative, though members of the custody staff have said thanks for bringing some of the issues to the her attention.

Posted in Uncategorized | Leave a comment

Retrial videos, State v. Shaun Johnson

The defense of Shaun Johnson has been one of the most challenging cases of my career. The first trial resulted in a conviction and three year sentence before the Appellate Court overturned the conviction, finding that unconstitutionally obtained evidence was introduced to the jury over the timely objection by the Defense (and multiple motions to suppress too).

So, we tried it again without the unconstitutionally gathered evidence. Again, though, the Defense sought to exclude a substantial amount of material we believed to be irrelevant to the facts in dispute and that only served to inflame the prejudices of the jury. The Court disagreed with defense position, denied the defense motions to suppress, and the jury took 7 hours to deliberate over one issue: was Ms. Johnson under the influence?

Here are a few videos from the trial.

Openings, which start at about the 10 minute mark.

Defense closing, starting at about 2 minutes and 30 seconds.

Posted in Uncategorized | Leave a comment

Shon Bogar in the news

The continuing saga of State of Washington v. Johnson:

Vehicular assault retrial begins

Woman gets 3 years in vehicular assault

What happens when the police play dirty and cheat?

Charges dropped in attempted-murder case

And a few others.

Camas man to serve 12 years for assault

Suspect in bank robbery given $30,000 bail

Man in court on suspicion of voyeurism

Ridgefield teen accused in vehicular assault

Posted in Uncategorized | Leave a comment

Acquittals, Dismissals and Judgments of Acquittal over the past few weeks

joa-16-1-01244-2

verdict-16-1-01244-2

verdict-16-1-01245-1

verdict-16-1-01245-1a

ccf11022016_0001

ccf11022016

Posted in Uncategorized | Leave a comment

Shon Bogar in the news

Aquittal in murder case.

Jury acquits man in fatal stabbing

Conviction for Vehicular Assault-DUI overturned by the Court of Appeals.

Retrial set for driver who hit teen on side of B.G. road

Vehicular Assault-DUI case resulted in smallest sentence possible under statutory guidelines, including last 30 days on work crew.

Battle Ground man sentenced in June vehicular assault

Charge of Assault-2 ultimately dismissed (but the dismissal was unreported by the news).

Vancouver man accused in head-stomping incident

Charge of Assault-1 with a deadly weapon after firing a law enforcement officer’s sidearm during a stop (ultimately acquitted as criminal insane, unreported by the news).

Woman in court after allegedly firing deputy’s gun during traffic stop

Bank Robbery.

Suspect in bank robbery given $30,000 bail

Sentencing after attack on Judge.

Man who allegedly attacked judge gets new attorney

Vehicular Assault-Reckless Driving.

Man in court in August car crash

Posted in Uncategorized | Leave a comment

Example closing argument – State v. Shaun Johnson

The best way to see how any trial attorney presents in trial is to actually see the attorney in action. What follows below includes the Defense closing arguments and prosecution rebuttal in State v. Shaun Johnson (Clark County Superior Court Cause 13-1-01964-7). The trial lasted five days, was very high profile with television and newspaper cameras present throughout.

Posted in Uncategorized | Leave a comment

How to pick a criminal defense attorney…

The following is taken from http://criminal.lawyers.com/criminal-law-basics/criminal-law-selecting-a-good-lawyer.html and is a good starting point in how to find the right criminal defense attorney for your specific case.

If you have been charged with a crime, you want to retain a lawyer immediately. You will want someone who has expertise in criminal defense because it is a highly specialized area of the law.

If you can’t afford to hire a lawyer in a criminal defense matter, a lawyer known as a “public defender” will be appointed for you. However, if you are looking to hire a criminal defense lawyer in private practice, one of the best places to start your search is here at lawyers.com.

You can do a free search to come up with a list of lawyers by using the Find A Lawyer search box that can be accessed anywhere on lawyers.com. (You should see a search box on the right side of your computer screen.)

If you do a seach for a criminal defense lawyer but don’t pull up any names, expand your search to other nearby cities. Also, follow the search tips provided in response to your unsuccessful search, or click on Search Help.

Once you are able to pull up a list of lawyers, look at each lawyer’s profile by clicking on his or her name, or by clicking on the link to “More info . . .” that appears next to each listing. If the lawyer has a Web site, check it out by clicking on the link provided in the profile.

Next, use the following guidelines to do some initial screening and narrow your list of lawyers down to three or four prospective candidates:

  • Look at biographical information, including whatever you can find on Web sites for the lawyers and their law firms. Do they appear to have expertise in the area of criminal law that you need? Do they have any information on their Web sites that is helpful to you? Do they belong to any reputable associations in the area of expertise that you need?
  • Use search engines to surf the Internet. Do searches under the name of each lawyer and his or her law firm. Can you find any articles, FAQ’s or other informational pieces that the lawyer has done that give you a level of comfort?
  • Ask other people if they have heard of the lawyers and what they think about them.
    Contact your state bar association or visit their Web site to find out if the lawyers are in good standing.
  • Check out the yellow pages of your telephone directory. Do the lawyers advertise? If so, do you find it compelling? Helpful? Tasteful?
  • Check out the online archives of your local newspaper. Has there been any publicity about the lawyers or the cases that they have handled?
  • Consider any special needs you have. For example, would you benefit from an attorney who speaks a language other than English?
  • Don’t eliminate a lawyer just because he or she didn’t have the time to meet with you on short notice. Good lawyers are busy so they may not be able to spend as much time as they would like with prospective clients.

Consider the lawyer’s staff. Good lawyers have good people working with them and they may delegate a lot of responsibility to their staff. At a minimum, you should expect to be treated courteously and professionally by the staff in a lawyer’s office.

Criminal defense lawyers will almost always charge by the hour, or by a flat fee that is payable up front. Rules of professional conduct for your state quite likely prohibit a lawyer from entering into a contingent fee agreement for a criminal action. Rates can be competitive so it may be to your benefit to shop around. However, lawyers with a good reputation in this area are going to charge more. With your freedom possibly on the line, it may be worthwhile to pay more for a lawyer or a law firm with a great reputation.

You will probably want to hire a lawyer with at least a few years of experience, and especially one with experience in the type of prosecution you are facing, like traffic offenses, drug crimes, sex offenses or white collar crimes.

Criminal cases are often resolved by plea agreements with the district attorney’s office. This may require that the lawyer have a good working relationship with the prosecuting attorney, or to at least have a reputation that commands respect. Thus, you will want a lawyer who appears frequently in the jurisdiction your case is in: federal or state, and, if state, in the particular county where you are charged.

Look to see if a lawyer is affiliated with associations that cater to your needs, like the National Association of Criminal Defense Lawyers . Most states have state organizations that are similar, as do many large cities.

Unless there are special circumstances, you will want to hire a lawyer with a local office. Since many criminal matters might arise in a jurisdiction where you don’t actually live, you may need to hire an attorney local to the criminal prosecution, rather than local to your home.

Before You Hire a Lawyer

Ask for references. You want to talk to people who could comment on the lawyer’s skills and trustworthiness.
Ask for a copy of a firm brochure and promotional materials. If they are available, crosscheck these materials against other sources and references.
Ask to be provided with a copy of the lawyer’s retainer agreement and have it explained to you before decide on retaining the lawyer or the lawyer’s law firm. You may end up paying a lot of money to the lawyer so make sure you understand what you are signing up for.
Use your common sense and gut instincts to evaluate the remaining lawyers on your list. You’ll want to be comfortable with the lawyer you hire. You will also want to choose the lawyer who you think will do the best job for you.

Posted in Uncategorized | Leave a comment

Imitation is the sincerest form of flattery

As a trial attorney, it’s always interesting to find out what folks on the other side think of my presentation and courtroom skills and demeanor. A few come to mind:

1. Voir dire is the the process of selecting a jury, and literally means “to speak the truth” in old Latin. Generally speaking, the Court will bring in 30-40 potential jurors, from which 12 will be selected to sit on the actual jury. The prosecution gets to go first in voir dire, and a good trial attorney will use the process to help educate the jury panel about desired themes that will come up in trial and to get rid of jurors who are unlikely to be good for the case. In other words, a good voir dire requires the trial attorney to speak a good bit (to educate the jury) and to listen (for answers to questions and in the debate).

Every now and again, I will use a story about an old black labrador retriever of mine in voir dire. I use it because the story is funny, because it gets the panel talking (most folks love to talk about dogs and have funny dog stories) and because it really drives home a few very important themes for criminal defense attorneys – the presumption of innocence and what “proof beyond a reasonable doubt” means.

In early 2014, I tried a three count criminal case with a specific prosecuting attorney who shall remain nameless. I used my black labrador story before the jury acquitted my client of all charges after a three day trial.

Later that year, I tried another case with the same prosecutor. This specific prosecutor literally stole my story, though instead of a black labrador the story was about a white dog, but the rest of the story was just screwed up and didn’t make any sense.

What a compliment. As a trial attorney, my job is to deal with and make the best of whatever happens. If that prosecutor cannot find something of her own to work with, that’s fine, and it must have been a good story if original material is getting stolen by the other side.

The best part was when I took the story that had been screwed up and turned it into a solid closing argument that delivered another verdict that was positive for the defense – one acquittal and one guilty.

2. A long-time employee recently left the Clark County Prosecuting Attorney’s Office. I reached out and said hello via Facebook. The response I received read, “Thanks Shon! I have been touched by how many have offered support & appreciate your reach out. I have always admired your aggressive style as a defense attorney and got a kick out of how well you have gotten into the heads of some of the DPAs [Deputy Prosecuting Attorneys, or prosecutors] in the office, lol. They have a special place in their hearts for you. I understood it as your skill frustrating them and forcing them to have to work harder for their paycheck.”

Yeah, I’ll take that.

Posted in Uncategorized | Leave a comment

Real world problems with the Violence Against Women Act

The US Senate re-authorized the Violence Against Women Act (VAWA) today. The House is working on a different version, but plans to reauthorize the law as well. The Senate version extends “protections” to lesbian, gay, bisexual and transgender people while the House version skips those provisions and requires mandatory sentences for certain crimes. The Senate version also increases the number of visas available to immigrant women facing abuse. http://www.latimes.com/news/politics/la-pn-violence-against-women-act-passes-in-the-senate-20120426,0,2304689.story

As with many laws, the VAWA sounds great in principle but has a great many unintended consequences in practice. To be clear, violence against anyone should not be tolerated, and violence should be aggressively prosecuted. Further, my complaints are not about the provisions in the Senate. But the reality is that the VAWA makes it almost impossible for police and prosecution authorities to exercise any sort of discretion, that the VAWA breaks up families that do not want to be broken up, and that the VAWA results in many people being convicted of crimes for actions that are neither violent nor against women but that fall under the law.

Before I go on, I need to make one thing clear. Domestic violence is not okay. Real domestic violence is and should be a crime. But in a civilized society such as ours, we need to rationally discuss issues even if they are emotionally challenging, and even if they are politically difficult. We should not abandon reason in favor of over-zealous prosecution that unnecessarily ruins lives. I’m simply arguing for more reason and discretion.

My primary complaint with the VAWA is with the mandatory arrest and mandatory no contact order provisions. They break up families, blow certain things out of proportion, and result in unnecessary criminal convictions. In a nutshell, the VAWA gives grants (cash) to police departments and prosecution authorities who agree to arrest and prosecute anyone considered an aggressor if there is any indication of physical violence. This is why if the police are called and the allegations are domestic violence, the person the police think is the aggressor is going to jail. The VAWA removes discretion from the police officers responding to the scene.

The “aggressor” is then prosecuted. In other arenas of the law, the prosecutor has discretion about whether to prosecute. The VAWA removes that level of discretion that good prosecutors have – is what happened really a crime, and does it warrant criminal prosecution.

When the defendant gets to court, he (or she, and I have had many female clients) will get a no contact order prohibiting all contact with his or her family. The no contact order will be there no matter what the “victim” says, or what really happened. Unless the defendant goes into counseling immediately (before being convicted of anything), his or her ability to communicate with loved ones, and with their children, will likely be taken away. I cannot tell you how many families I have seen broken up by the VAWA.

The “solution,” at least here in Clark County, is what’s known as diversion. If the defendant agrees to undergo two years of domestic violence treatment and is willing to pay a bunch of money, the case may ultimately be dismissed if everything is done right. Once in treatment, the no contact order may be lifted. Or it may not, and the Judge will keep a parent from their children no matter what the people actually involved need or want. Of course, violating the no contact order is a new crime, and it is usually prosecuted much more severely than the underlying allegations.

One of my first “dv” clients was arrested for assault-4/dv because she allegedly pushed her boyfriend away from her during an argument. He was growing and selling pot out of their apartment. She was mad, and they fought. He tried to hug her, and she told him she did not want him to hug her. He kept trying, and she pushed him away. That was the case. Those were the allegations.

She didn’t want him to hug her, he kept trying, she pushed him away. The police report said he had “scratches” on his chest. They weren’t scratches. He was pale, they were red marks, and he wasn’t wearing a shirt.

My client was all set to go to trial. And then she made a mistake. A big mistake. She went camping in the mountains with her boyfriend. She hadn’t seen him in months. A Deputy happened to be driving by, and stopped to check their IDs to see if they were 21 since they had beer (they were both over 21).

You know what happened. The Deputy realized she was violating the no contact order. He  was obviously there of his own free will. Didn’t matter. He didn’t have discretion. He took her to jail. She spent a weekend in the Cowlitz County jail before getting to see the Judge Monday morning.

After a weekend in the lockup, she was willing to plead to anything to get out. Anything. I couldn’t convince her that the long-term consequences were too severe. She pleaded out the next day and will forever have a domestic violence crime on her record as well as a violation of a no contact order. The no contact order was quickly dropped too.

Violence against anyone is wrong, and should be fully prosecuted. Red marks on the chest of a man who continued trying to touch a woman who did not want to be touched do not constitute domestic violence. At least not in my book. That’s not justice. That’s not what the law is supposed to be about.

Cases like this are why I oppose reauthorizing the Violence Against Women Act. Violence against everyone should be prosecuted. But it should be done with discretion. It should be done with an understanding that family is important. And it should always strive to reach a just conclusion. That is what the law is supposed to be about.

 And, by the way, the “victim” in that case moved past his marijuana habit and married the “aggressor.” They have a beautiful baby, and last I heard they are very happy despite the State’s best attempts to keep them apart.

Shon W. Bogar, WSBA #41764

Posted in Criminal defense | Leave a comment

The importance of remaining silent

Please repeat after me: “I have the right to remain silent. I do not need to answer a police officer’s questions. I have the right to have my attorney present during any questioning by law officers. I can ask if I am free to leave, and the police officer has to tell me if I am free to leave. If I am being detained, I have the right to know why. It is up to me to exercise these rights. If I do not exercise my rights, nobody else will.”

People ask me all the time, “what should I do if am stopped or approached by law enforcement?” Or, “do I have to answer questions or comply with a police officer’s requests?” And, even more common, people ask what they should say if the police are conducting a DUI investigation? The easiest answer is that each and every person has the right to remain silent when being questioned by law enforcement and to have their attorney present for questioning. Please remember that this blog is meant to help people understand what is going on and is not meant to substitute for legal advice regarding the specifics of any situation. Please call my office if you want specific advice.

The rights listed above are among the most important rights possessed by people being investigated for a crime. Did you know that the vast majority of criminal prosecutions are built on words that voluntarily come out of the mouth of the accused? It’s true. At least 70% of my cases involve something that my client said, either to law enforcement or to someone else. This includes Facebook posts and calls made from the jail. In almost every situation, every single word that someone being investigated of a crime speaks has the potential to hurt them in the long-run. I want to talk about three common examples in this post.

The first example is the all too common DUI investigation. Imagine if you will a darkened parking lot, deserted except for one or two police cars and the person suspected of DUI. The investigating officer will write in her report that she personally observed the suspect driving at an inconsistent speed, weaving in and out of the lane, and ultimately failing to properly stop at a stop sign. The officer pulled the car over for any one of the infractions, but suspected more. The officer will also write in her report that she smelled alcohol in the driving compartment, that the driver’s speech was slurred and that the driver was thick-fingered when getting the license and registration. Of course, none of these can be recreated, and the evidence in trial will consist of the officer’s testimony.

The Officer then asks the million dollar question, “have you been drinking tonight?” At that point, the driver has a choice – talk or exercise the right to remain silent. Remember, everything the driver says can be used against him. If he admits drinking, that will surely be used against him. If he denies drinking, then it is the officer’s word that she smelled alcohol (and any potential “sobriety” tests or breath alcohol tests) against the driver’s word. If the breath test shows alcohol, the driver will look like a liar.

The alternative is to respectfully inform the officer that you are exercising your constitutional right to remain silent and that you will only answer questions with the presence of an attorney. Just as important, anyone exercising their right to remain silent must actually remain silent. In other words, keep your mouth shut once you have respectfully told the officer that you will be remaining silent. If this is done, all the officer can say is that you did not answer questions. This minimizes the harm the driver might eventually face, and is a heck of a lot better than admitting drinking or lying to the police. Both are almost always bad decisions.

The second example also involves a DUI investigation, when the officer asks the driver to submit to “field sobriety tests” (which don’t really test sobriety, but that’s a subject for a different blog). You have the right to decline the tests. You do not have to do them! This goes along with the right to remain silent – everything you do will likely build a case against you. Declining to take the tests is almost always better than taking the test and giving them more evidence against you.

We have also all heard the line, “I couldn’t even do that sober” in response to an officer asking someone to stand on one leg or walk a straight line. This is immensely frustrating to a DUI defense attorney. Think about it – by saying you couldn’t do something sober you are also stating that you are NOT SOBER. Admitting that you are not sober is just about the worst thing you can say when being investigated for driving under the influence. It doesn’t mean your case is lost, but it does make the defense much more difficult. Little slips like this are why I almost always advise someone to exercise their right to remain silent during questioning or investigation by the police.

The final example is the jail phone call. They are recorded. Police officers and prosecutors listen to the calls inmates make. The best course of action if someone is in jail is to not talk about the case on the phone. The most common example I see is in connection with allegations of domestic violence with a no contact order prohibiting all contact with the alleged victim. No contact means NO CONTACT. The prosecution aggressively prosecutes violations of no contact orders. Do not call the alleged victim! The police will listen to your calls, and the prosecution will aggressively prosecute the violations even if the alleged victim does not believe they are the victim and even if they have asked the police and prosecution not to prosecute. The decision of whether to prosecute is not up to the victim – it is up to the City or State of Washington.

Similarly, if a defendant calls and talks about the specifics of the case on the phone, the prosecution will get the call and they will know everything that is being said. This includes not only potential admissions about the allegations but also tactics and strategy. Don’t give the prosecution a direct line into your case by using the phone.

Posted in Criminal defense | Leave a comment