Challenging Restitution: an Often Overlooked Area of Advocacy

By Emily M. Gause

(As published in Washington Criminal Defense Magazine, August 2018)

                As criminal defense attorneys (aka freedom fighters), we are all aware of the ways legal financial obligations can result in a “debtors prison” that continues to shackle our clients to the system well after they are finished serving a sentence.  The median legal financial obligation (LFO) in the State of Washington leaves the average person carrying $1,110 of debt on their back as they attempt to reenter society.[i]  Before June 7, 2018, that debt was subject to a 12% interest rate.  Recent legislation just changed that, but not for restitution.[ii]    

The average amount of restitution per case is $2,540.[iii]  The interest on restitution alone can make paying it off impossible.  For example, a person who can only afford to pay $20 per month in an effort to repay the average $2,500 debt may remain indebted to the court even after years of regular payment.  In fact, a person who owed $2,500 in debt will owe $300 in interest by the end of the first year that the restitution is owed. At a rate of $20 per month, the person will not even be able to pay off the interest that accrued on the debt, let alone the initial debt itself.  LFOs cannot be discharged in bankruptcy, and many never expire.  Those who are unable to pay their LFOs may even be arrested and end up in jail. [iv]

                According to the Washington Office of Public Defense, 80-90% of people charged with felonies are indigent.  And according to a 2010 report from the Brennan Center for Justice, 60% of former inmates are still unemployed one year after leaving prison.   This means that our advocacy at restitution hearings can have an incredible impact on our clients, often helping pave the way for their successful reentry into society and ability to afford housing.  Financial stability can deter people from becoming desperate and engaging in behaviors that got them involved in the criminal justice system to begin with. 

                My brilliant colleagues, I call you to action.  Fight against restitution every chance you can.

                In one year alone, I was able to save my clients from paying $73,000 in restitution.  I did this with three different arguments:  (1) challenging the amount the government wanted my client to pay, (2) objecting to restitution because the state could not show that my client’s actions caused the damage or harm for which compensation was sought, and (3) disputing the court’s authority to impose restitution when the 180-day time limit had expired.  That’s a lot of money!  In one case, my objection to extending the time period for good cause after the 180-day clock ran out saved my 22-year-old client from paying over $52,000. 

                Look, I understand that by the time a restitution request lands on our desk, we have long forgotten about our client’s particular case.  We may have closed the file.  We haven’t spoken to the client in months.  There are no pending hearings to keep this case on our radar.  It is easy to rush through the amount requested by the state, assume it’s a reasonable request after our cursory glance, call our client for a quick chat where we advise they just agree to the amount, and sign the line on the agreed restitution order.   But, I am writing today to ask you to not overlook this area for advocacy.   Even for small amounts, less than $1,000, your challenge to the restitution request can alleviate a huge barrier to your client’s financial success moving forward.  It often does not take more than filing one 2-3 page brief and showing up for a contested hearing to make your position clear.  And let me tell you, judges are listening.  Of the four challenges to restitution I made in that year, I prevailed in all four.   If you provide the clear authority to give the judge a reason not to saddle your client with enormous debt, judges often do the right thing.

                Restitution is an order by a sentencing court that our client must pay a specific amount of money over a designated period of time to eligible victims as reparations for damages following conviction. RCW 9.94A.030(43).  A court may order restitution to compensate for damages to property and medical costs and lost wages arising from personal injuries; damages stemming from intangible harms, such as mental anguish or pain and suffering, are not appropriate bases for restitution. RCW 9.94A.753(3).  Additionally, the total restitution amount cannot be greater than double the amount of the defendant’s gain or the victim’s damages resulting from the crime. Id.

Here are some ideas for challenges to restitution:

• Object to imposition of restitution in co-defendant case where your client didn’t cause the damage or injury.    Look for other challenges to causation – ie: that your client’s act caused the injury. 
• The restitution statute provides a trial court with the discretion to order a defendant to pay restitution for the expenses that are caused by his or her criminal acts.  State v. Enstone, 137 Wn.2d 675, 680, 974 P.2d 828, 830 (1999) (emphasis added). A trial court's discretion in awarding restitution is limited to the precise offense charged. State v. Ashley, 40 Wn. App. 877, 878–79, 700 P.2d 1207 (1985) (citing State v. Mark, 36 Wn. App. 428, 675 P.2d 1250 (1984)). “Restitution may not be based on acts connected with the crime charged, when those acts are not part of the charge.” State v. Hartwell, 38 Wn. App. 135, 141, 684 P.2d 778 (1984).  A trial court may order restitution when the victim's damage was a foreseeable consequence of the defendant's criminal acts. State v. Steward, 52 Wn. App. 413, 416, 760 P.2d 939 (1988).
• Object to paying for victim counseling records unless the State has shown that the topics addressed in counseling are directly related to the defendant’s criminal act.  Ask for proof that the counseling did not begin prior to the criminal act.   Ask for records sufficient to prove that the counsel is related to this offense and not addressing other life events. 
• Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense. RCW 9.94A753.
• Object to your client paying restitution for crimes she was not charged with or did not plead guilty to.
• A defendant may not be required to pay restitution beyond the crime charged or for other uncharged offenses. State v. Tindal, 50 Wn. App. 401, 403, 748 P.2d 695 (1988) ( “Restitution may not be based on acts connected with the crime charged when those acts are not part of the charge.”).  An exception to this general rule exists where the defendant pleads guilty and expressly agrees to pay restitution for crimes for which the defendant was not convicted. RCW 9.94A.142(2); State v. Raleigh, 50 Wn. App. 248, 252, 748 P.2d 267, review denied, 110 Wn.2d 1017 (1988).
• Be diligent in checking when the statutory time limit expires.  If the State does not request an extension of the 180-day time period for good cause before it lapses, there is no authority to order restitution. 
• When ordering restitution the trial court must set the specific amount either at the sentencing hearing or within 180 days of that hearing; this time limit is mandatory. State v. Grantham, 174 Wn. App. 399, 299 P.3d 21 (2013). The limit acts like an ordinary statute of limitations, Id., and prevents delay in resolution of criminal charges. State v. Duvall, 86 Wn. App. 871, 940 P.2d 671 (1997). Courts have the authority to extend this time limit if requested by a party prior to the deadline when good cause exists for doing so. State v. Grantham, 174 Wn. App. 399, 299 P.3d 21 (2013).
• Object if the government attempts to get restitution for someone other than a victim. 
• Restitution is statutorily limited to victims. State v. Ewing, 102 Wn. App. 349, 7 P.3d 835 (2000). However, the term “victim” applies more broadly than to the immediate victim of a crime; the term also includes both individuals and entities who suffer financial losses from assisting direct victims. State v. Cawyer, 182 Wn. App. 610, 330 P.3d 219 (2014). For example, an insurance company that pays benefits to a direct victim of an offense is eligible to receive restitution. State v. Ewing, 102 Wn.App. 349, 7 P.3d 835 (2000).

I hope that these ideas give you something to start with.  Take a look at the cases on restitution and craft new and unique challenges.  Be a warrior!  I’d love to hear your experiences with fighting restitution and celebrate your victories with you. 

Emily M. Gause has her own criminal defense practice, Gause Law Offices PLLC.  She focuses on defending juveniles and adults accused of serious felonies in both state and federal courts throughout Washington.  She can be reached at emily@emilygauselaw.com. 

[i]  Washington State Minority and Justice Commission report:  The Assessment and Consequences of Legal Financial Obligations in Washington State, 2008.   

[ii]   “Legislature passes bill to bring fairness to Washington’s system of Legal Financial Obligations,” American Civil Liberties Union, March 6, 2018.

[iii]  According to the Washington State Office of Public Defense website.

[iv]  Modern-Day Debtors’ Prisons: How Court Imposed Debts Punish Poor People in Washington, Columbia Legal Services and ACLU, January 2014.

Vanishing Trials and Why We Should Save Them

By Ann Dorn

Some lawyers tell clients that “trial is a good thing if you win, and a bad thing if you lose.” The decision to take a case to trial is complex, and should be carefully considered with the help of an attorney. However, while there are significant advantages in going trial in some cases, a new report from the National Association of Criminal Defense Lawyers (NACDL) argues there are too many defendants who are afraid to go to trial because of retribution in the form of harsher charges or longer sentences, known as the “trial penalty.” This idea is supported by United States Sentencing Commission data, which has found that have found sentences given following a conviction at trial are on average three times longer than plea deals, raising the stakes if a defendant chooses to take their case to trial.

Going to trial shouldn’t come with additional risks or longer sentences, and we shouldn’t accept coercive conditions in the justice system, the NACDL says in the report titled The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.

Concerns about how the trial penalty affects the justice system are well documented. Thirty years ago, about 20 percent of criminal cases proceeded to trial; today, that number has fallen to three percent. As a result, fewer attorneys have trial experience or even the willingness to take a case to trial, and both judges and prosecutors are losing the “edge that trials once gave them,” according to the report.

Additionally, the pressure to plea can be coercive, the report found. Prosecutors often have the ability to add or drop charges up until the case is resolved, and frequently decrease the severity of charges in exchange for a plea, influencing a defendant’s decision to exercise their right to trial. Authors of The Trial Penalty report believe this a problem in cases where prosecutors use it punitively, increasing or amending charges to be more serious if the defendant decides to go to trial.

The Trial Penalty report offers additional evidence that trial penalties have a negative effect on defendants and society: despite the increasing number of defendants who choose to accept a plea offer, these deals actually encourage longer sentences, which contributes to mass incarceration and affects the poor and people of color disproportionately. Finally, an estimated 1.6-27 percent of all defendants who plead guilty may actually be factually innocent, according to research.

All of this results in a failure to fully protect constitutional rights and should be addressed, according to the NACDL. The Trial Penalty report issues a number of recommendations, including repealing or reforming mandatory minimum sentencing, and advocates for the adoption of a review process to make sure defendants who are convicted and sentenced after trial do not receive substantially different sentences than those who plead guilty to the same crime.

If you or a loved one is charged with a crime, you need an experienced, aggressive, and knowledgeable defense attorney willing to take your case all the way to trial.

Call Gause Law Offices today for a free consultation – 206-660-8775.

Blog Article: Top 3 Reasons Why You Should Hire an Attorney if You are Served with a Protection Order

By Andrea Kim

If you are served with a protection order, you should consult with an attorney and hire one to represent you against the protection order. There are multiples kinds of protection orders: Anti-Harassment Protection Orders, Domestic Violence Protection Orders, Sexual Assault Protection Orders, and Vulnerable Adult Protection Orders. These are different than restraining orders entered as part of a family law case and they are also different than no contact orders issued in criminal cases.

1) You do not have the Right to a Court Appointed Attorney

·         The ONLY time a party to a protection order has the ability to ask the court to appoint an attorney for him or her is in a Sexual Assault Protection Order. RCW 7.90.070 States that “the Court may appoint counsel to represent the petitioner if the respondent is represented by counsel.” That means that if the Respondent hires an attorney, then the court CAN appoint an attorney to represent the Petitioner who originally requested the order BUT only in a Sexual Assault Protection Order. That is the only situation where the court has the ability to appoint an attorney for either a Petitioner or Respondent in a Protection Order. Therefore, if you do not hire an attorney to represent you, then you will be defending yourself in court alone without the assistance of an attorney. While the court rules are designed for a person to be able to seek a protection order without the assistance of an attorney, there are zero court resources or assistance for Respondent’s responding to a Protection Order.

·         Having an attorney represent you against a protection order provides you with the wealth of knowledge and expertise of the attorney. An attorney is going to know the proper etiquette to use in the courtroom and with the Petitioner’s attorney. Judges can be very particular and become very angry if a Respondent inadvertently offends them or does not abide by courtroom rules and decorum. An attorney is also going to know what documents to file and present to the court. Hiring an experienced protection order attorney provides you with someone that can decide which documents are going to be most important for the judge and will also be able to inform you of what documents you should not submit to the judge and why. The attorney can also provide you with advice and guidance in crafting your own affidavits and declarations to make sure they are as effective as possible. The attorney does a majority of the speaking for you in court so that you do not have to speak with the judge as much when you are nervous or do not enjoy public speaking. Every single client that has hired me to represent them against a protection order has left the case saying it was money well spent and that my services and expertise were invaluable.

2) There are potential implications of your 5th Amendment Right Against Self-Incrimination

·         In order to obtain a protection order, the Petitioner has to allege some sort of conduct or action that you took because of which they need protection from you. That alone means that the Petitioner is often accusing you, the Respondent, of illegal actions or crimes. Every person’s natural inclination is to defend themselves against such allegations. However, there can be many consequences for submitting documents or making statements to the court defending yourself that go far beyond what you are aware.

·         Most importantly, if you admit to any crime whatsoever, then a prosecutor could use your admission to the protection order court against you in a criminal case. Every person has a right to not make self-incriminating statements under the Fifth Amendment of the United States Constitution. If there is any chance that you could be charged with a crime for the allegations made in a Petition for a Protection Order, then it is imperative that you hire an attorney to represent you in responding to the protection order because of the potential criminal implications it could have for you. You may not even know that you could be charged with a crime for something you admit to doing and you would not know that unless you speak with an attorney. If you hire an attorney to represent you against the Protection Order, that attorney knows exactly how to defend you against the protection order without saying anything that could get you in trouble later on down the road.

·         If you already have criminal charges pending against you for the same actions alleged in the protection order, then it is even more important that you hire an attorney to represent you in the protection order because the prosecutor in your criminal case will be paying close attention to the things that you say and admit to during the protection order proceedings. If you have an attorney represent you during protection order proceedings they can even request a longer continuance of the hearings in order to allow you the opportunity to fully defend against the allegations without suffering the criminal consequences for those statements.

                3) There are many other potential consequences that you may not be aware of

·         For example, if you have a pending family law case involving children or a divorce, the judge in your family law case can see the documents that you submit as part of the protection order and if you admit to anything that the judge does not like, then you could lose custody of your children, or lose your divorce case.

·         Some other potential consequences of having a protection order entered against you can include loss of your job or career. For example, some medical professionals cannot be the Respondent in a protection order. I have represented many nurses and a few doctors that would have lost their job if the judge granted the request for a protection order against them. Another consequence of having a protection order entered against you is that, depending on the type of order, you cannot possess or own firearms while you are controlled by the protection order. You also may not be able to vacate or seal a prior criminal conviction for an extended period of time if you have a protection order entered against you. There are many unforeseen consequences of having a protection order entered against you and it is incredibly important that you consult with an attorney before responding to a protection order. Unfortunately, because protection orders are a civil matter and not a criminal matter, no one has the right to an attorney for a protection order, but as discussed throughout this article, it is well worth the cost to hire an attorney to represent you against a protection order to protect your rights and make sure you understand all of the potential consequences of a protection order.   

If you or a loved one has been served with a Protection Order, you need an experienced, aggressive, and knowledgeable defense attorney. Call Gause Law Offices today for a free consultation – 206-660-8775.

DUI: To Blow or Not to Blow

By Andrea Kim

The decision whether or not to submit to a Blood Alcohol Content Breathalyzer test is one that many people have to make prior to being able to speak with an attorney about the potential consequences. There are multiple stages during a DUI investigation when the driver needs to make a decision about whether or not to submit to tests. The first opportunity a driver has an option to submit to tests is on the side of the road when they are first pulled over before being arrested, that is referred to below as “on scene.” Then once a driver is arrested for Driving Under the Influence (DUI) they are taken to a station or location with a breathalyzer machine, that is referred to below as “at the station.” If a driver is arrested for being intoxicated by a drug or something other than alcohol, or if a driver refuses a breathalyzer test, then they may be given the option to submit to a blood draw to test the alcohol or drug content in their system, that stage is referred to below as “blood draw at hospital.”

On Scene:

-          The first thing to understand about the roadside investigation is that an officer cannot arrest you for DUI unless they have probable cause to believe that you are driving intoxicated. Probable cause means “a belief based upon facts and circumstances within knowledge of the arresting officer that would persuade a cautious but disinterested person to believe the arrested person has committed a crime.” Henry v. United States, 361 U.S. 98, 80 S. Ct 168, 4 L.Ed.2d 134 (1959). This is a relatively low level of evidence that an officer has to find in order to arrest a person for DUI but they do have to find some evidence. Because of the requirement that they have to have probable cause to arrest a person for DUI, the less evidence you provide them prior to arresting you, the better. The only time that I recommend clients submit to all of the tests described below is if they are completely sober. If a client has consumed any alcohol or drugs, I the recommendations below apply, EVEN IF THE PERSON THINKS THEY ARE NOW FINE TO DRIVE.

-          When a person is first pulled over and being investigated for DUI, the officer will likely ask if the person has had anything to drink, or if the person has consumed any drugs. The driver should ALWAYS refuse to answer that question or answer it in the negative. Officers use a person’s admission of consumption as evidence to develop probable cause to arrest in every single case a person admits to consumption. A vast majority of people admit to only having consumed one or two alcoholic beverages but that is still sufficient for an officer to use to develop probable cause to arrest that person for DUI. That is why you should always tell the officer you have had nothing to drink or refuse to answer that question.

-          Another area that officers use to develop probable cause is when they ask you for your license, insurance, and registration. Officers observe if you struggle at all with that command or if you fumble, have tremors, drop, or otherwise struggle with getting those documents to hand to the officer. You should not refuse to hand those documents to the officer but you should be very aware of your movements and actions while doing so. The more easily accessible you have those documents when driving, the better.

-          Once an officer asks you to exit your vehicle, they are also going to observe your every move to see if you are stumbling, leaning on your car for balance, or if you sway or trip. Another reason officers ask you to step out of the vehicle is so that they can determine if the “odor of intoxicants” is coming directly from you or if it is coming from the vehicle.

-          Now we are getting to the point on the roadside where you have the ability to choose whether or not you want to submit to some tests. Know that the entire purpose for having you complete the tests is so that the officer can determine if you are intoxicated and his or her observations during these tests are used to develop probably cause to arrest you for DUI. Because of that, my advise to clients is always to refuse to complete the tests on the side of the roadway. These are called Standard Field Sobriety Tests or SFST for short. These tests include the Horizontal Gaze Nystagmus Test (HGN) where they have you follow their pen. There is also the Walk and Turn test where they have you take 9 heel to toe steps, turn in a very specific way, and then have you take 9 heel to toe steps back to the start. There is also the One Leg Stand test where they have you balance on one foot for a period of seconds. Those are the three main tests that they have drivers complete almost every time but they also have people complete a test where they count to 30 so they can determine if your internal clock is running quicker or slower than normal. They also sometimes have people try to touch the tip of their nose with one finger to test their hand and eye coordination. Every single one of these tests has 0 to 6 points possible, typically if they find that a drive fails more than 2 points TOTAL between all tests, then they have probable cause to arrest for DUI. There are literally dozens of things that a driver can do incorrectly to get a point on EVERY SINGLE one of these tests. People who are completely sober have failed these tests. Because of that, unless you are 100% sober and have consumed no alcohol or drugs, you should never submit to these tests.

-          Finally, on the roadside, an officer will sometimes ask a person to submit to a small breathalyzer test called a Portable Breathalyzer Test (PbT). These portable breath test machines have been found to be so unreliable that they are NOT admissible in court. The sole purpose for this test is to give the officer more evidence to develop probable cause to arrest the driver for DUI. Therefore, unless you are 100% sober, you should NEVER agree to take the PbT on the roadside.

-          Unfortunately, as described above, probable cause is a pretty low standard so even if a driver refuses all of these tests on scene, an officer can arrest them for DUI if they think they have enough evidence that the person is driving while intoxicated. Evidence that they regularly arrest on before they even get to these tests include, blood shot and watery eyes, the odor of intoxicants coming from the driver, if the person fumbled for his or her license, if the person was swerving or was in an accident, and if the person admitted to consuming intoxicants.

At the Station:

-          Once an officer arrests a person for DUI, they then take them to a station or other location where there is an official breath test machine. In Washington state, most jurisdictions are currently changing from the old machine, the DataMaster, to a new machine called the Draeger. This test only tests for alcohol, not any other drugs. These results from these machines are normally admissible in court unless they are malfunctioning in some way or the officer messes up the procedure in some way. In Washington state, a prosecutor can prove a DUI case in two different ways. The first is under the “per se” prong of the statute which only requires them to prove that the person was driving and that the results of this test showed they were intoxicated. That is it! The second way the prosecutor can prove a DUI case is under the “affected by” prong which requires them to prove the person was intoxicated while driving based on the officer’s observations of the driver as evidence of intoxication. That is clearly a harder to case to prove than the first prong that just requires the results of this test. That is why this test is so crucial for officer and prosecutors and so damning for defendants. This is the single most important piece of evidence that the officer can obtain from the driver of the vehicle if they are under the influence of alcohol. 

-          Because the results of this test can be so important, it may be a good option for a driver to refuse to submit to this test. Every driver in Washington State has the option to refuse to submit to the breath machine test at the station. HOWEVER, if a driver refuses to submit to this test, his or her license is automatically suspended for one year. That suspension still occurs, EVEN IF THE DUI CHARGE IS DISMISSED! Every driver needs to consider what matters most to them, not being able to drive for a year or giving the officer and prosecutor the best evidence to use against them in the DUI charge. There are some people that risk losing their career or even being deported if they are convicted of a DUI and those people may choose to refuse the breath test and accept the one year license suspension. Every single person arrested for DUI has the option to call an attorney before they officially tell the officer if they are going to submit to or refuse the breath test and every person should take that opportunity to talk through their specific circumstances with an attorney, even if it is the local public defender.

Blood Draw at the Hospital:

-          If a person refuses to submit to a breath test at the station as discussed above, then the officer could obtain a search warrant for a blood draw to determine the blood alcohol content in their system. Officers also obtain blood draws when they are suspicious that a person is under the influence of drugs alone or in addition to alcohol. There are two separate circumstances when an officer is obtaining a blood draw, one is once they have obtained a search warrant to draw the person’s blood, and the second is if they ask the person to consent to a blood draw.

-          If an officer has a search warrant to obtain a blood draw from a driver, then the driver does not have the option to refuse to submit to that test. A search warrant for a blood draw is similar to a search warrant to search a house or car and the person is not allowed to refuse to comply with the search warrant. A good defense attorney may be able to challenge the warrant at a later date and then have the results of the blood test thrown out of court if the warrant was not valid.

-          If an officer does not have a warrant and is just asking a driver to submit to a blood test, then the driver does have the option to refuse to submit to that test. HOWEVER, the minimum one year license suspension would apply to that driver the same as it would to a driver refusing to submit a breath test as described previously.

-          NO MATTER WHAT, if a driver is submitting to a blood draw either pursuant to a search warrant or because they consented to the blood draw, every driver has the right to have an independent test conducted of their own on the same blood draw. If a driver would like to take advantage of the option to have an independent test completed, then they should speak with an attorney, even if it is the local public defender, to ask about the procedure for doing that in their local jurisdiction.

If you or a loved one is being investigated for DUI, you need an experienced, aggressive, and knowledgeable defense attorney. 

Call Gause Law Offices today for a free consultation – 206-660-8775.

What You Should Know About Arraignment

If you’ve been arrested and booked into jail, you’ll attend a hearing where the judge will tell you the charges against you. This hearing is called an arraignment. Here’s what to expect.

1)      You’ll be asked to enter a plea of “guilty” or “not guilty.” In some circumstances and certain jurisdictions other pleas are possible, such as “nolo contendere” (no contest) and an Alford plea. Your attorney will almost always advise you to enter a plea of “not guilty,” even if you feel you should take responsibility for what happened. You can change your plea in the future.

2)      Washington State law says that when you appear at your arraignment, the court must ask if you have an attorney and if not, tell you that you have the right to one. If you can’t afford an attorney, one will be appointed for you from the Office of Public Defense. An attorney will be with you at all court hearings and will advise you of your rights throughout the entire process of the criminal proceedings against you.

3)      In Washington, arraignments must take place within 14 days of a complaint (charges) being filed against you in criminal court.

4)      At your arraignment, the judge will decide if you must remain in custody (stay in jail) or may be released, and under what conditions. The judge may require that you post bond (also known as bail) before you can be released. Additional conditions may include electronic home monitoring, not being allowed to leave the county or state, or being ordered to not have contact with certain people, such as an alleged victim or co-defendant.

5)      You’ll often learn about the next event in your case, which is likely to be a case setting hearing where a timeline of hearings and events leading up to trial will be established.

If you or a loved one is facing arraignment, you need an experienced, aggressive, and knowledgeable defense attorney. Call Gause Law Offices today for a free consultation – 206-660-8775.

The Top Four Most Surprising Acquittals of All Time

In 1924, Chicago resident Belva Gaertner was arrested for the murder of Walter Law, who was found in Gaertner’s car having died of gunshot wounds from Gaertner’s gun, which was also in the vehicle. Gaertner was at home in bloodied clothing when the police arrested her. She admitted going dancing the previous night with Law but said she had no memory of anything that happened later that evening and never confessed to his murder. Gaertner’s ex-husband retained a well-known lawyer and at trial, her defense argued that the evidence against her was circumstantial, as there were no witnesses and the state lacked solid evidence. Gaertner was acquitted after a short trial and her case later became the inspiration for the musical Chicago.

R&B singer R. Kelly was found not guilty when a jury in Chicago acquitted him on 21 counts of charges related to child pornography after police arrested and accused him of videotaping sexual acts with one girl, who would have been 15 at the time. The singer posted $750,000 bail and continued his award-winning career while awaiting trial, which would take place six years later. For reasons jurors later said related to the refusal of the alleged victim to testify and an inability to prove she was a minor, they found him not guilty on all charges.

After a highly publicized 252 day trial in which former football star OJ Simpson was accused of killing his estranged wife and her friend, Simpson was found not guilty. While the prosecution presented a large and convincing body of evidence, which ranged from droplets of Simpson’s blood being found at the crime scene to a leather glove found outside Simpson’s home that had blood from the victims on it, Simpson’s team of lawyers called into question evidence gathering procedures, like delays in processing blood to determine DNA, and left the jury unconvinced that the state had proved beyond reasonable doubt that Simpson committed the homicides. Simpson was later found liable for the murders in a civil trial and fined.

Thirty year old single mother Casey Anthony was acquitted of murdering her daughter, Caylee Anthony, who disappeared at the age of two in July 2011. Anthony did not report her daughter missing and was accused of lying to investigators. In addition, investigators found evidence of human decomposition in her trunk, using a new type of forensic analysis that hadn’t been used before in a trial in the United States. The jury deliberated for over 10 hours before finding Anthony not guilty, with jurors later stating they were unable to convict Anthony of first degree murder because the prosecution couldn’t prove each element of the charges beyond reasonable doubt. Defense attorneys widely agreed the prosecution “over-charged” the case, leading to the acquittal.

If you or a loved one is under investigation or charged with a crime, you need an experienced, aggressive, and knowledgeable defense attorney. 

Call Gause Law Offices today for a free consultation – 206-660-8775.

Accomplice Versus Rendering Criminal Assistance

Did you know that you can be charged with a crime you did not even technically commit? Many people are charged with a crime as an accomplice.   This means that they are “on the hook” for commission of a crime even if they weren’t the ones who committed the principle crime. 

For example, a person can be charged as an accomplice for Burglary in the First Degree if they drove another to a house to commit a theft inside and a gun was used, even if that person never got out of the car or entered the house.  That person who didn’t do anything but drive the car is criminally liable for the same exact punishment as the person who actually committed the burglary!

What is the definition of an accomplice? 

A person is criminally liable as an accomplice if they know about a crime and do something to promote the crime. 

The criminal statute reads:

A person is an accomplice of another person in the commission of a crime if:

(1) With knowledge that it will promote or facilitate the commission of the crime, he

(a) solicits, commands, encourages, or requests such other person to commit it; or

(b) aids or agrees to aid such other person in planning or committing it; or

(2) His conduct is expressly declared by law to establish his complicity.

RCW 9A.08.020(3).

Mere presence at the scene of a crime, even if the person agreed to be there, is not sufficient to prove someone is an accomplice. The State must prove that the defendant was ready to assist in the crime.[1]

Even if an accomplice knows that the principle intends to commit “a crime” that does not necessarily mean that the accomplice liability attaches for any and all offenses ultimately committed by the principle.  In order for someone to be deemed an accomplice, that person must have knowledge that he was promoting or facilitating the crime that the principle is committing. 

There are two ways to terminate accomplice liability:

1.       If the accomplice gives timely notice to law enforcement OR makes a good faith effort to prevent the commission of the crime; OR

2.       If the accomplice is a victim of the crime.

If you are charged as an accomplice, your defense attorney may challenge whether the State can prove that you (1) had knowledge that the crime was going to occur; and/or (2) did anything to promote or assist with it. 

Sometimes, this means arguing that you are only criminally liable for rendering criminal assistance, and not an accomplice.

What is rendering criminal assistance?   It means you didn’t have knowledge before the crime happened, but you assisted in some way after the fact. 

The criminal statute reads:

A person "renders criminal assistance" if, with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he or she knows has committed a crime or is being sought by law enforcement officials for the commission of a or has escaped from a detention facility, he:

(1) Harbors or conceals such person; or

(2) Warns such person of impending discovery or apprehension; or

(3) Provides such person with money, transportation, disguise, or other means of avoiding discovery or apprehension; or

(4) Prevents or obstructs, by use of force, deception, or threat, anyone from performing an act that might aid in the discovery or apprehension of such person; or

(5) Conceals, alters, or destroys any physical evidence that might aid in the discovery or apprehension of such person; or

(6) Provides such person with a weapon.

A conviction for rendering criminal assistance is a gross misdemeanor for Class B and Class C felonies.  If you were convicted of rendering criminal assistance to someone after they committed a Class A felony, rendering is elevated up to a Class C felony.   Either way, a conviction for rendering is often a significant reduction from any crime alleged to have been committed as an accomplice.   It is an option for plea bargaining and may be able to reduce your punishment from years down to months. 

RCW 9A.76.050

[1]  State v. Luna, 71 Wn. App. 755, 759, 862 P.2d 620 (1993).

If you or a loved one is charged as an accomplice to a crime, you need an experienced, aggressive, and knowledgeable defense attorney. 

Call Gause Law Offices today for a free consultation – 206-660-8775.

Juvenile Diversion: To Do Or Not To Do

Some juveniles will have the opportunity to enter into a diversion agreement to avoid criminal charges.

A diversion agreement is offered before charges are ever filed in juvenile court. If a juvenile enters into and successfully completes a diversion agreement, then there is never a guilty conviction or finding and there are never criminal charges filed against them. The juvenile would have no criminal record; however, the juvenile court will be able to see that the juvenile participated in a diversion in order to track how many diversions that juvenile has completed if they get more charges in the future.  

To qualify for diversion, the crime must be a misdemeanor, such as Theft in the Third Degree or Possession of Drug Alcohol. Each juvenile automatically qualifies for diversion for their first misdemeanor offense, but for a second or third offense, the prosecutor has the discretion to refer the case for diversion or to file charges. Three diversions are the maximum that any particular youth may receive.  

Parents or Guardians are required to attend diversion meetings with the juvenile. The diversion process involves a one time meeting with a local community board to discuss the allegations and what the appropriate remedy is for the juvenile to take responsibility for their actions. Then the juvenile and parent enter into an agreement with the Diversion program where they agree to not commit any new law violations, and then the juvenile can agree to complete a number of conditions that could include:

-          community service hours,

-          an apology letter to the alleged victim,

-          pay restitution to the alleged victim,

-          pay a fine,

-          attend counseling,

-          attend a class or information session,

-          get a drug and alcohol assessment,

-          obey a curfew,

-          obey a no contact order,

-          and attend school. 

Ultimately a diversion is a great opportunity for a juvenile to avoid a criminal record. It also allows them the ability to take responsibility for their actions and learn a lesson while not having the charge impact them for years to come. HOWEVER, if a youth fails to successfully complete a diversion agreement, then charges may be filed against the youth and the prosecutor may be able to use any statements made during the diversion meeting against the youth in the criminal charges.

If you or a loved one are considering whether or not to enter into a diversion agreement, you need an experienced, aggressive, and knowledgeable juvenile defense attorney. Call Gause Law Offices today for a free consultation at 206-660-8775.

What is Robbery in the First Degree?

Robbery in the First Degree
RCW 9A.56.200

 (1) A person is guilty of robbery in the first degree if:

(a) In the commission of a robbery or of immediate flight therefrom, he or she:

(i) Is armed with a deadly weapon; or

(ii) Displays what appears to be a firearm or other deadly weapon; or

(iii) Inflicts bodily injury; or

(b) He or she commits a robbery within and against a financial institution as defined in RCW 7.88.010 or 35.38.060.

(2) Robbery in the first degree is a class A felony.

A “financial institution” means a bank, trust company, mutual savings bank, savings and loan association, or credit union authorized by federal or state law to accept deposits in this state. RCW 7.88.010.

A “deadly weapon” is any weapon, device, instrument, substance, or article including a vehicle which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.

Substantial bodily harm means bodily injury that involves a temporary but substantial disfigurement, or that causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or that causes a fracture of any bodily part.  WPIC 2.03.01.

Attorney’s Notes:

Robbery in the First Degree means taking property from another with use of force or threat or force, and using a weapon OR inflicting bodily injury OR taking money from a bank.  

Robbery in the First Degree is a Class A felony, the most serious of the three classes of felonies. 

A Robbery in the First Degree charge is often accompanied with a deadly weapon or firearm enhancement, if a weapon is used.  A deadly weapon enhancement results in an additional 2 years of incarceration, while a firearm enhancement results in an additional 5 years of incarceration.  Enhancements are not eligible for “good time” reductions.

With no criminal history, a Robbery in the First Degree conviction results in a standard sentencing range of 31-41 months.  You can earn 33% good time in prison.  

With 9 criminal history points, a Robbery in the First Degree conviction results in a standard sentencing range of 129-171 months.  

If you or a loved one is charged with Robbery in the First Degree, you need an experienced, aggressive, and knowledgeable defense attorney. 

Call Gause Law Offices today for a free consultation – 206-660-8775.