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.

Shaken Baby Syndrome

By Emily M. Gause and Fernanda Torres

(As published in Washington Criminal Defense Magazine, February 2016)

This article provides a broad outline of what practitioners defending child abuse cases involving closed head injuries need to know regarding “Abusive Head Trauma” (AHT) (formerly known as shaken baby syndrome), including problems with the AHT diagnosis, investigation requirements, and available resources. 

Each case is unique, of course, but an AHT case will likely follow a pattern. A child in acute distress, or worse, is rushed to the hospital by a caregiver. CT scans indicate subdural bleeding; possibly, ophthalmologic exams indicate profuse retinal bleeding in one or both eyes; other injuries may or may not be noted. Brain injury may be present. If the history reported by the caregiver(s) is considered to be inconsistent with the medical findings, it is said that child abuse needs to be “ruled out.” A child abuse expert is called in to consult. That person reviews the child’s hospital records, including the reported history. Blood tests are done and certain conditions may be excluded based on the results or follow-up testing. If applicable, autopsy results are considered. Abusive head trauma is diagnosed through the “differential diagnosis” method that supposedly rules out other explanations. According to the child abuse expert, whiplash forces, possibly with impact, explain the “constellation of injuries” of subdural hemorrhage and/or retinal hemorrhage and/or brain damage and/or other injuries. The last caregiver, or the last person to be left alone with the child, will be said to be responsible. This person, now a suspect, is questioned by doctors, police, DSHS, or all of the above. The suspect and family members are likely told that it was medically determined that abuse is the only explanation for the observed injuries. Possibly, a “confession” happens. The confession is said to corroborate the diagnosis. 

            When reviewing the case, it is important to know you cannot assume that: 1) The medical findings reflect recent, or acute, events; 2) the medical findings are the result of injury and not a disease process; 3) the child abuse expert reviewed all relevant records, including all of the child’s medical history; 4) the reported history is, in fact, inconsistent with the medical findings; 5) the differential diagnosis process really ruled out all alternative explanations; 6) the medical examiner’s findings, if applicable, support an abuse diagnosis; 7) the child’s onset of symptoms was immediate; 8) the suspect’s alleged confession describes truly abusive actions, and; 9) the AHT determination rests on well-supported medical science. Given the state of the science, explored below, the only reasonable conclusion warranted by the medical facts may be that abuse is only one of many possible explanations, or that the cause of the medical findings (or death) is unknown. 

A.    The History of AHT

In 1968, Dr. Ayub Ommaya, a biomechanical engineer, conducted a study whereby rhesus monkeys were strapped into sled-like chairs that traveled over a 20-foot long track and impacted into a wall.[1] Many of the monkeys were found to have subdural bleeding (or bleeding inside the cranium, below one of the meningeal layers surrounding the brain called the dura mater).[2] From this sole study, two British doctors, Drs. Guthkelch and Caffey, hypothesized that shaking could account for intracranial injury in infants with no external evidence of cranial trauma.[3] No further research tested this hypothesis, but it lingered and eventually evolved into what we know as “Shaken Baby Syndrome” (SBS).[4] 

Since much has been written about the evolution of SBS in multiple articles that are must-reads for defense attorneys, the background is not explored at length here.[5] The short version is that the shaking hypothesis was adopted by the medical community as the basis of a firm diagnosis of abuse that eventually came to look like this:  Subdural bleeding and/or retinal bleeding and/or brain injury in a child is a “constellation of injuries” suspicious for abuse; in the absence of known trauma (such as a car accident) these medical findings are markers that the child was violently shaken. In other words, these findings—also known as the “triad”—are traumatic in origin and, where no history of trauma is reported, are highly specific for abusive shaking.

SBS is now better known as “Abusive Head Trauma” (AHT), a “less mechanistic” term adopted in 2009 by the American Academy of Pediatrics (AAP),[6] largely in response to research raising questions about shaking as a causal mechanism. AHT, like its predecessor SBS, is a medical diagnosis of abuse. Unlike most medical diagnoses, AHT has no set diagnostic criteria and is used to describe any inflicted head injury that is the consequence of violent shaking, blunt impact, or both.[7] The only firm criterion is that the medical findings are the result of abuse.[8]In addition to one or more of the “triad” findings, skull, rib, or long bone fractures, and signs of external trauma (scalp bruising, for example) may or may not be present.

Despite the name change, the idea that shaking alone can cause intracranial injury is still endorsed by the medical community.[9],[10] Thus, simply because State experts diagnose AHT and claim not to know the exact mechanism of abuse does not mean they are not, in essence, talking about SBS. If described as abuse involving a whiplash force or an acceleration/deceleration injury, the conclusion still rests on the underpinnings of SBS. Here, we focus on those cases where the State claims other causes[11] have been “ruled out” and it is a whiplash force—possibly with impact—that caused the abusive head injury, and where there are no other injuries indicating abuse.[12] We refer to AHT as the SBS/AHT hypothesis.

B. The biomechanics of SBS/AHT

According to SBS/AHT hypothesis, when a child’s head moves back and forth in an arc during violent shaking, rotational forces on the brain cause bridging vein rupture and, in the case of retinal hemorrhaging, vitreoretinal traction.[13] Secondarily, increased intracranial pressure and oxygen deprivation can cause brain swelling and damage.[14] Two questions flow naturally from the SBS/AHT proposition: 1) Should we expect to see neck injury? 2) How severe does the shaking have to be? Biomechanical research has tried to answer both. 

On the question of neck injury, Dr. Faris Bandak published research in 2005 finding that infants subjected to the levels of rotational velocity and acceleration called for in the SBS literature would experience forces on the infant neck far exceeding the limits for structural failure of the cervical spine.[15] In other words, neck injury has to occur before head injury. 

Regarding the force necessary to inflict injury, multiple biomechanical studies have looked at the effect of shaking on infants and children by measuring the angular acceleration forces of shaking. The results are consistent that the force generated by shaking is well-below injury thresholds.[16] Simply stated, the most vigorous shaking an adult can muster generates relatively little force. The research confirmed that drops of just a few feet produce far more angular acceleration than does the most forceful shaking.[17]

Indeed, the first biomechanical study investigating SBS in 1987 concluded “shaking alone in an otherwise normal baby is unlikely to cause the shaken baby syndrome.” [18] The subsequent studies have reached substantially similar results, even when testing with exaggerated shaking motions, modified dummy necks, or animal surrogates.[19] When one considers that the onlyexperimental basis of the SBS hypothesis—the 1968 Ommaya study—involved energy levels equivalent to vehicle crashes at 30 mph, the results of biomechanical research measuring the effects of shaking are not surprising.[20]

The response to the biomechanical research has been mixed to negative. On the one hand, the name change to AHT reflects doubts about shaking.[21] On the other hand, the AAP still endorses shaking, even without impact, as a plausible mechanism;[22] shaking-only prosecutions continue to be brought;[23] and the biomechanical research is largely ignored or heavily criticized.  In the case of the Bandak study, to say that SBS/AHT proponents do not like it would be an understatement. The main criticism is that the findings are the result of numerical error, a point Dr. Bandak has addressed and refuted.[24] The study has not, in fact, ever been shown to be wrong. Yet, State experts will describe it as flawed. 

As to the other studies, the response can be fairly summed up as this: The failure of biomechanics to validate shaking as a mechanism of injury is the fault of biomechanics. Supposedly, infant models are not biofidelic, scaling from adult models is not appropriate, and injury thresholds for infants have not yet been established.[25] The infant head is different, the argument goes, and it is not known how infant tissue responds.[26] Along the same lines, State experts like to point out that since we cannot test real babies, biomechanics cannot provide an answer.[27] 

The limitations on the science, if true, simply mean we do not know the effects of shaking. In fact, as one court pointed out, the claim that injury thresholds are not yet established “provides a newfound basis for skepticism about causation and mechanism testimony.”[28] And, while we cannot test real babies, this does not mean that if we did test real babies, the results would show shaking causes intracranial injury. These attempts to cast aside the biomechanical research disproving the SBS/AHT hypothesis reveal persistent and pervasive bias.

C.    Support in the medical literature

The number of SBS/AHT studies is in the hundreds. As such, State experts can point to

the medical literature for support. The SBS/AHT literature, however, suffers from a major, fundamental flaw: Circularity. This refers to the problem of selecting cases by the presence of the very clinical findings and test results the study seeks to validate.[29] For example, in a circular study looking at retinal hemorrhaging, non-accidental trauma cases are differentiated from accidental trauma cases by the presence of retinal hemorrhaging. Then, when the non-accidental cases have retinal hemorrhaging, it is concluded that retinal hemorrhaging indicates non-accidental trauma. Circular studies assuming what they set out to prove do not have much value, but that has not stopped reliance on such studies. Moreover, at trial, State experts will criticize the literature review first identifying circularity as a major problem.[30] 

However, circularity is an acknowledged problem, and efforts to avoid it have resulted in the so-called confessional literature.[31] These are studies where the researchers used perpetrator confessions to supposedly corroborate abuse before classifying a case as abusive.[32] A chapter in an authoritative child abuse textbook edited by Dr. Carole Jenny—a leading child abuse expert and SBS/AHT proponent now based in Seattle—states “the evidence base for shaking isconfessions.”[33] Given the biomechanical research and the circularity problem, this is where the science is today—relying on non-scientific data consisting of imprecise, unconfirmed, alleged confessions, the details of which may not even be known. The multiple, specific issues with the confession studies are discussed at length in the Findley et al. article cited above.[34] It is important to review this discussion, and the underlying studies, so you can educate the fact-finder on the limits of the stated support.

D.    Reasonable medical certainty vs. reasonable doubt

At trial, the AHT diagnosis will be stated to a reasonable medical certainty. What

this means may be different for each doctor, and it almost certainly means something far less than beyond a reasonable doubt.[35] If the expert opinion is the only evidence establishing all the elements of the charged offense, as in most AHT cases, a conviction resting upon “reasonable medical certainty” is problematic. To make matters harder, the AHT diagnosis is a bit of a magic trick. The child abuse expert initially relies on medical knowledge purportedly supporting the notion that shaking (with or without impact) causes the medical findings, and this forms the basis of his/her AHT diagnosis. Then, the same expert will claim he/she does not know the exact mechanism of injury. And, voila, the premise (shaking hypothesis) supporting the conclusion (abuse) vanishes, but the conclusion remains. Since the expert is not saying the mechanism of abuse was shaking, this blunts challenges discrediting shaking as mechanism.

The issues are furthered obscured because the term AHT lumps the medical findings, causation and intent together. This makes it difficult to assess causation objectively.[36] Also, the causation determination enjoys the protective cloak of being a medical diagnosis endorsed by the AAP, a fact the State will likely hammer over and over again. Indeed, lending legitimacy to the hypothesis was likely an intended consequence of the name change, given the concern that “[l]egal challenges to the term ‘shaken baby syndrome’ can distract from the more important questions of accountability of the perpetrator and/or the safety of the victim.”[37] Thus, in a legal setting, the AHT terminology helps the prosecution, even as it muddles the issues. Lifting the veil, so to speak, will hopefully help your client. 

E.    Understanding the medical terms

Providing definitions for the various medical terms involved in an AHT case is outside

the scope of this article. However, there are resources available that will help you with the medical terms that appear in these types of cases.[38] In addition to the terms mentioned above, you should be familiar with the following: Acute, subacute and chronic (and time frames associated with each), gray/white matter differentiation, diffuse axonal damage, hypoxia, ischemia, intracranial pressure, macrocephaly, retinoschisis, subarachnoid hemorrhage.

F.    Checklist – Some ideas to consider if you have a case with AHT diagnosis:

1.     Read the discovery and look for the common buzzwords – clues that the medical science may be flawed

a.     “Constellation of injuries,” “triad”, “shaken baby syndrome” “acceleration/deceleration” “diffuse axonal damage” “rule out diagnosis.” 

b.     A diagnosis in the first 1-2 hours (knee jerk response diagnosis).

c.     Referring to a “confession” as evidence for the medical diagnosis.

2.     Develop an understanding of the subject matter so you can adequately defend the case. Read background information about AHT in general. Several resources are cited above. Others are: It Happened to Audrey[39] and “Scenes of a Crime” (documentary about father who falsely confessed to shaking his baby).[40]

3.     Research and read decisions: list of cases: Cavazos v. Smith, 132 S.Ct. 2, 8 (2011) (Ginsberg, J., dissenting) (describing the growing doubt about SBS); Del Prete v. Thompson, supra note 25;People v. Thomas, supra note 41; People v. Bailey, 999 N.Y.S.2d 713 (2014) (granting new trial based on newly discovered evidence of SBS); Ex parte Henderson, 384 S.W.3d 833 (new trial granted based on new scientific research on accidental falls); Aleman v. Vill. of Hanover Park, 662 F.3d 897 (7th Cir. 2011) (discussing the agreement that a lucid interval was likely); State v. Edmunds, 308 Wis.2d 374 (2008) (granting new trial based on newly discovered evidence of SBS and discussing alternative causes, lucid intervals, biomechanics, and the shift in medical opinion).

4.     Interview client about the child’s history. Interview other spouse or caretaker about medical history. Create a timeline of the child’s life from birth to collapse, including major events (hospitalizations) to minor ones (routine doctor visits). Get family photos at various times showing babies head. Pay special attention to head circumference, as bulging may indicate a chronic hematoma.  Gather medical records, including prenatal, birth and pediatrician records. Start this process early and be persistent. 

5.     Get all medical records from the date of incident, not just what is provided in discovery. Make sure to get MRI and CT scans in original form so you can provide to defense experts later. Don’t dump the medical records on the expert. Organize them per that expert’s specifications.

6.     Create executive summary of the case and share with expert. Should include a list of the records you have and do not have, summary of facts in chronological order, abstract of medical records, abstract of child’s medical history. 

7.     Watch or listen to the interrogation. Note how many times the medical findings or diagnosis was brought during questioning. 

8.     Obtain expert help. Courts have overturned convictions for ineffective assistance of counsel for the failure to investigate and obtain expert services from a qualified expert.[41] The following is a non-exhaustive list of the types of experts you may need to consult:

a.     Radiologist

b.     Ophthalmologist

c.     Pediatric neurologist

d.     Forensic pathologist

e.     Epidemiologist

f.      Hematologist

g.     Biomechanics

9.     Develop defense theory. The following is a non-exhaustive list of some potential defenses to the AHT diagnosis:

a.     Medical findings were caused by a prior medical issue, not abuse. For example, a rebleed of a subdural hematoma caused in the birth process.

b.     Medical findings were caused by an underlying disorder.  Examples include:  craniocerebal disproportion, developmental disorders, coagulopathy or vascular disease, metabolic or nutritional disorders, infections or post-infectious conditions, hypoxia-ischemia (e.g. airway, respiratory, cardiac, or circulatory compromise), seizures, and recent vaccinations.  

c.     The medical findings were caused by a short fall.  

d.     The timing of the injuries cannot be pinpointed to time when defendant was with child; or, injuries were more likely inflicted before by someone else. This is explained by what is referred to as the “lucid interval.” A lucid interval is a period of time between an injury and symptoms in which the baby is acting normal, or close to normal, prior to neurological collapse. But note that what is “normal” for a baby varies and the source of a baby’s fussiness, if any, is hard to identify. There is quite a bit in the medical literature about lucid intervals, and importantly the 2015 AAP clinical report concedes that “[i]nfants with intracranial injuries may have no neurologic symptoms…”.[42]

e.     Given the specific facts of the case, the medical conclusion that the child was abused is weakly supported and non-scientific.

f.      Present evidence of good parenting.  This can be very powerful in AHT cases, as a jury may be wary to convict based on disputed scientific theory.  A history of good parenting may decide the outcome.  

10.  Be prepared to interview State medical witnesses (treating doctors and any child abuse experts): 

a.     Find and review expert’s testimony in other cases.

b.     Consult your defense experts about what questions to ask State doctors.

c.     Ask questions about how the doctors engaged in a differential diagnosis? How did they rule out other possibilities?  How long did this process take (1 hour? Or days?)? 

d.     What medical records did they review?  Birth records?  Pediatrician records?  Medical history as provided by mom or dad?  A “confession?”

e.     How did they determine timing of the injuries?

f.      How do they explain the pathology of the injuries? How did they happen? What are they relying on to reach conclusion as to causation?

g.     Review literature cited by expert. Does it support conclusion of abuse in this case? 

11.  Motions/Issues to consider

a.     Frye/ER 702/703 – Expert testimony is subject to Frye and the rules of evidence, of course. With the AAP endorsing AHT, it is difficult to argue the diagnosis is not generally accepted and one WA court has determined AHT testimony is admissible.[43] 

b.     3.5 Hearing

                                                        i.     See Adrian Thomas case (and documentary) [44] 

                                                      ii.     Aleman v. Village of Hanover Park  (not controlling for WA but still informative)[45]

c.     Corpus Deliciti issues – confession alone cannot be basis of charge.  Given the weak medical evidence in this area, there may be room to make a motion to dismiss for failure to establish corpus deliciti.  

d.     Insufficiency of the evidence – Del Prete, Swedish case

e.     Motions in Limine to consider in these types of cases:

                                                       i.     Limit testimony of doctors to the medical findings.  

                                                      ii.     Exclude/limit use of terms SBS and AHT as prejudicial and invading the province of the jury until objective evidence supports an expert opinion on causation (experts may use “consistent with”).

                                                    iii.     Prevent State from claiming defendant confessed until defendant’s statements are actually before jury. 

                                                     iv.     Limit doctors from testifying as to the opinions or conclusions of third persons, including subordinates of or co-workers with the expert, unless such third person is available for cross-examination on the point. Opinions or conclusions of abuse are not medical findings.  ER 702 & 703; State v. Lui, 179 Wn.2d 457 (2014).

                                                      v.     Limit opinion on ultimate issue—whether the defendant assaulted his child—by using case law that prohibits a witness to opine on the defendant’s guilt. Restrict state doctors from concluding that their diagnosis means that defendant must have assaulted his child. 

                                                     vi.     Limit state doctors testifying outside their area of expertise (for example, ophthalmologists testifying about cranial CT scan findings).   

G.   Conclusion

AHT cases present unique concerns involving complex medical issues that are the subject of ongoing investigation and debate. We hope this article provided a very basic lesson in the background and current status of the AHT diagnosis and some tools for what to look for if you find yourself with such a case. Both authors are happy to answer questions and provide resources if asked.  

Emily M. Gause has been practicing in criminal defense for five years and has her own solo practice (The Law Offices of Emily M. Gause PLLC).  She focuses on felonies in state and federal courts throughout Washington.  She can be reached at emily@emilygauselaw.com.

[1]Ayub K. Ommaya, Whiplash Injury and Brain Damage, 204 JAMA 75 (1968). 
[2] Id. at 76. 
[3] John Caffey, On the Theory and Practice of Shaking Infants, 124 Amer.J. Dis. Child 161 (1972); A.N. Guthkelch, Infantile Subdural Haemotoma and Its Relationship to Whiplash Injuries, Brit. Med. Journal 430 (1971). See also Ronald Uscinski,Shaken Baby Syndrome: An Odyssey, 46 Neurol. Med. Chir. 57 (2006) (exploring the history of shaken baby syndrome). 
[4] Uscinski, supra note 3 at 58. 
[5] See, e.g., Debora Tuerkheimer, Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice (2014); A.N. Guthkelch, supra note 3; Keith A. Findley et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right, 12 Hous. J. Health L. & Pol'y 209, 312 (2012); Mark Anderson, Does Shaken Baby Syndrome Really Exist?Discovery Magazine, Dec. 2, 2008; Uscinksi, supra note 3.
[6] Cindy W. Christian et al., Am. Acad. of Pediatrics, Abusive Head Trauma in Infants and Children, 123 Pediatrics 1409 (2009). Please note that this American Academy of Pediatrics (AAP) policy statement expired in 2015. It was replaced by a “clinical report.” See infra, note 7. 
[7] Cindy W. Christian et al., Am. Acad. of Pediatrics, The Evaluation of Suspected Child Physical Abuse, 135 Pediatrics e1337,  e1345(2015) (available at http://pediatrics.aappublications.org/content/135/5/e1337).
[8] See id. Also, the Centers for Disease Control defines AHT broadly as “an injury to the skull or intracranial contents of an infant or young child (< 5 years of age) due to inflicted blunt impact and/or violent shaking.” Sharyn E. Parks et al., Centers for Disease Control and Prevention, Pediatric Abusive Head Trauma: Recommended Definitions for Public Health Surveillance and Research, Centers for Disease Control and Prevention (2012), at 10. 
[9] See CDC Recommendations, supra note 8; Christian et al., supra note 6, at 1409-1410, supra note 7 at e1345.
[10] But do note that the National Association of Medical Examiners (NAME) did not renew its 2001 position paper on abusive head injuries that incorporated the SBS hypothesis. The 2013 position paper on suspected head trauma encourages a thorough, reviewable investigation and emphasizes the importance of a correct diagnosis and the danger of an incorrect one, including a wrongful prosecution. See James R. Gill et al., National Association of Medical Examiners Position Paper: Recommendations for the Postmortem Assessment of Suspected Head Trauma in Infants and Young Children, 4 Acad. Forensic Pathol. 206 (2013).
[11] There is now wide consensus that there are many alternative causes to the triad, sometimes referred to as “mimics.” See Patrick D. Barnes, Imaging of Nonaccidental Injury and the Mimics: Issues and Controversies in
the Era of Evidence-Based Medicine, 49 Radiologic Clinics N. Am. 205 (2011); Christopher S. Greeley, Conditions Confused with Head Trauma, in Child Abuse and Neglect, Diagnosis, Treatment and Evidence 441 (Carole Jenny, ed., 2011); Waney Squier, The ‘‘Shaken Baby’’ Syndrome: Pathology and Mechanisms, 122 Acta Neuropathologica 519 (2011). The process for identifying alternative causes is difficult though and requires collaboration between different disciplines, as well as up-to-date medical knowledge. Additionally, there may be unidentified causes. 
[12] Please note that other injuries alleged to be abusive should be looked at closely too, since the doctors may have determined the cause of those injuries incorrectly. Bone fractures are a good example of injuries prone to being incorrectly identified as abusive in origin. 
[13] See generally Child Abuse and Neglect, Diagnosis, Treatment and Evidence, supra note 11, at 349-363, 402-412.
[14] An SBS/AHT diagnosis may also involve Diffuse Axonal Injury (DAI), a type of brain injury usually confirmed with autopsy tests. 
[15] Faris A. Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sci. Int’l 71 (2005).
[16] See John Lloyd et al., Biomechanical Evaluation of Head Kinematics During Infant Shaking Versus Pediatric Activities of Daily Living, Journal of Forensic Biomechanics (2011); John W. Finnie et al., Diffuse Neuronal Perikaryal Amyloid Precursor Protein Immunoreactivity in an Ovine Model of Non-Accidental Head Injury (the Shaken Baby Syndrome), 17 J. Clinical Neuroscience 237 (2010); N.G. Ibrahim et al., The Response of Toddler and Infant Heads During Vigorous Shaking, 22 J. Neurotrauma 1207 (2005); Michael T. Prange et al., Anthropomorphic Simulations of Falls, Shakes, and Inflicted Impacts in Infants, 99 J. Neurosurg. 143 (2003); C. Z. Cory & B. M. Jones, Can Shaking Alone Cause Fatal Brain Injury? A Biomechanical Assessment of the Duhaime Shaken Baby Syndrome Model, 43 Med., Sci. & Law 317 (2003); Ann-Christine Duhaime et al.,The Shaken Baby Syndrome, a Clinical, Pathological and Biomechanical Study, 66 J. Neurosurg. 409 (1987). 
[17] Prange, supra note 16, at 148-49.
[18] Duhaime, supra note 16, at 409.
[19] See, e.g., Finnie, supra note 16 (involving baby lambs); Cory, supra note 13 (modified neck & exaggerated shaking motion).
[20] See A.K. Ommaya et al., Biomechanics and Neuropathology of Adult and Pediatric Head Injury, 16 Br. J. Neurosurgery 220, 221 (2002) (explaining the 1968 study and the misplaced reliance on it as the basis of SBS). 
[21] See Christian et al., supra note 6, at 1409 (discussing the research and noting that the change in terminology is necessary to “keep pace with our understanding of pathologic mechanisms.”)  
[22] Id. at 1409-10.
[23] Although since the biomechanical studies show the importance of impact to cause injury, expert opinion now says the possibility of impact cannot be excluded.
[24] Faris A. Bandak, Response to the Letter to the Editor, 164 Forensic Sci. Int. 282-283 (2006). 
[25] See Del Prete v. Thompson, 10 F.Supp.3d 907, 930 (N.D. Ill. 2014) (summarizing testimony of biomechanical expert for the government in case in case involving SBS). 
[26] Id. 
[27] Tim Haeck, Defense Debunks ‘Shaken Baby Syndrome’ in Tacoma Trial, MYNorthwest.com (Oct. 13, 2014), http://mynorthwest.com/11/2621506/Defense-debunks-shaken-baby-syndrome-in-Tacoma-trial.
[28] Del Prete, 10 F.Supp.3d at 954.
[29] See Mark Donohoe, Evidence-Based Medicine and Shaken Baby Syndrome Part I: Literature Review, 1966-1998, 24 A.M. J. Forensic Med. Pathology 239 (2003).
[30] Id.
[31] See, e.g., Matthieu Vinchon et al., Confessed Abuse Versus Witnessed Accidents in Infants: Comparison of Clinical, Radiological, & Ophthalmological Data in Corroborated Cases, 26 Child’s Nervous Sys. 637 (2010) (discussing the circularity bias in the litearature). 
[32] See id; see also Suzanne P. Starling et al., Analysis of Perpetrator Admissions to Inflicted Traumatic Brain Injury in Children, 158 Archives Pediatric & Adolescent Med. 454 (2004); Catherine Adamsbaum et al., Abusive Head Trauma: Judicial Admissions Highlight Violent and Repetitive Shaking, 126 Pediatrics 546 (2010).
[33] Mark S. Dias, The Case for Shaking, in Child Abuse and Neglect, Diagnosis, Treatment and Evidence 362, supra note 11, at 368 (emphasis in original); See also Del Prete v. Thompson, supra note 25, at 936-944 (describing Dr. Jenny’s testimony).
[34] See supra note 5, at 256-261.
[35] See Mark S. Dias et al., Defining ‘reasonable medical certainty’ in court: What does it mean to medical experts in child abuse cases? -- Child Abuse & Neglect -- (2015) (reporting results of email survey sent to child abuse doctors regarding the definition of the term in the context of court cases).
[36] See Guthkelch, supra note 3, at 202.
[37] Christian et al., supra note 6, at 1410. 
[38] See, e.g., Lori Frasier et al., Abusive Head Trauma in Infants and Children: A Medical, Legal and Forensic Reference(2006).
[39] Audrey Edmonds and Jill Wellington, It Happened to Audrey, A Terrifying Journey from Loving Mom to Accused Baby Killer (2012).  
[40] Scenes of a Crime, a film by Grover Babcock and Blue Hadaegh, accessed at http://scenesofacrime.com/about/
[41] See, e.g., State v. Ackley, 497 Mich. 381 (2015).
[42] Christian et al., supra note 7, at e1345. 
[43] See In re Morris, 189 Wn.App 484 (2014) (petition for review pending). Other courts have rejected similar challenges. No court yet has held the testimony is inadmissible. The area continues to evolve, however, and with an ever-changing tide and the potential for a new record, this might be a viable claim in future cases, depending on the specific facts of that case, of course. 
[44] In 2014, the New York Court of Appeals overturned a murder conviction for the death of a four-month old baby stating: “[T]he set of highly coercive deceptions” utilized by the police “were of a kind sufficiently potent to nullify individual judgment in any ordinarily resolute person and were manifestly lethal to self-determination when deployed against defendant, an unsophisticated individual without experience in the criminal justice system” 22 N.Y.3d 629, 630 (2014). In doing so, the Court granted a new trial, holding that the confession and video were inadmissible. 
[45] In Aleman v. Village of Hanover Park, the Court concluded that the defendant’s confession, induced by false statements concerning SBS, “was worthless as evidence.” 662 F.3d 897, 906-07 (7th Cir. 2011).  The detectives interrogated the defendant on the “evidence” that a subdural hematoma meant that the child had to have been shaken.  Id. The judge found that such false statements had “destroyed information required for defendant to make any rational choice.”  Id.  By doing so, it was logical for the defendant to say that he had been responsible for the child’s death when he gently shook the baby according to what he learned in CPR training.  Id.   

Top 5 Reasons Why a Criminal Defense Investigator is Crucial for Your Case

A criminal defense investigator plays an important role on your criminal defense team. He or she will assist your criminal defense attorney in preparation for trial, including gathering records and interviewing witnesses. Having a diligent, experienced criminal defense investigator is crucial!

1) Hit the Ground Running

When an "incident" happens and police are called, they immediately start investigating.  Law enforcement will interview witnesses with fresh memories, collect evidence, take photographs at the scene, and gather information. By immediately retaining a private criminal defense attorney with a good investigator, you can ensure that YOUR team will also hit the ground running. This means taking defense-friendly photographs at the scene, interviewing those same witnesses to get statements that may be more defense friendly, interviewing other witnesses unknown to law enforcement (or intentionally avoided because they do not help the State's case), or other investigation such as requesting copies of video surveillance, audio recordings, or other electronic evidence. Hiring a private attorney who has a smaller caseload will ensure that your advocate and investigator will hit the ground running.

2) Another Perspective on the Case

An experienced criminal defense attorney will already know what to be looking for as she reviews your case. She will be searching for potential search issues, violations of your constitutional rights, problems with the police investigation, or other evidentiary issues. Another set of eyes and another perspective is another reason why having a defense investigator is crucial. A great investigator can assist with case theories, possible defenses, or offer different ideas for moving forward with the investigation.

3) Digging up Dirt

Criminal defense investigators are often tasked with digging up dirt on the State's witnesses. This can be by filing Public Disclosure Requests with police agencies, issuing a Subpoena Duces Tecum on people or businesses who may have relevant information, or conducting witness interviews to discover impeachment evidence, biases, or prior acts of State witnesses that may be admissible at trial to help with your defense. This is especially true for self-defense cases where any prior violent act by the "alleged victim" would be admissible at trial.  It is important to diligently search for any information that could be helpful in your defense.

4)  Running the Witness Interview

Criminal defense investigators typically prepare for and conduct all witness interviews. Sometimes criminal defense attorneys attend those (I always do!). Interviewing state witnesses before trial allows defense investigators and attorneys the opportunity to ask hard questions and elicit important details that may have been ignored by the prosecutor or police. It allows us to gather more information about what the witness will be testifying to, and also push into the weak areas of the prosecutor's case. Witness interviews are an important part of any criminal defense.

5)   A Defense Witness at Trial

At trial, it can be intimidating to see the State line up its 15-20 witnesses, including several law enforcement officers. If any police officer had any role in your case, however limited, the prosecutor will put that person up on the stand to testify about what he or she did. It can be extremely daunting to see uniformed officer and uniformed officer coming in the courtroom to testify against you. And most times, there are NO defense witnesses or VERY FEW. That's just how the system works. However, a great criminal defense investigator can be a wonderful defense witness at trial. We can put that investigator on the stand just like the State puts the lead detective on the stand. Just like the lead detective will explain everything he or she did to investigate why you are GUILTY of a crime, our defense investigator can discuss his investigation and why you are clearly NOT GUILTY of the crime. It can be a powerful way to rebut the State's long stream of officer witnesses.

Reprinted from Avvo Legal Guide

Work/Life Balance: How to stay committed to the “life” part

How many years, days, and hours will we “work” in our lifetime?   

According to Distractify, the average American works for 40 hours per week from ages 20-65.  That adds up to a whopping 10.3 total years of your life.  

Work is an essential part of a person’s lifetime.  It is a piece of who you are, and makes up and key component of your personality.  One of the first questions a stranger asks another when first meeting is “what do you do” or some other way of inquiring about what the person does for his profession, career or job.  

However, if we are not careful, we can end up putting more energy and time into our work life that we become “work-a-holics” and sacrifice our home life.  This can jeopardize our relationship or marriage, our bond with our children, and our own mental health.   

Lawyering is one of the highest professions for “burn out” and depression.   According to an often cited Johns Hopkins University study of more than 100 occupations, researchers found that lawyers lead the nation with the highest incidence of depression.  Eaton, W.W. (1990). Occupations and the prevalence of major depressive disorder.Journal of Occupational Medicine, 32 (11), 1079-1087.

An American Bar Association Young Lawyers Division survey indicated that 41 percent of female attorneys were unhappy with their jobs.  That number is shocking.  I am happy to say that I am one of the 59% of female lawyers that loves my job and is happy to wake up and serve my clients every day.  But I also started my own practice so that I could have the freedom to set my own schedule.  I am able to leave early on days that I want to catch a 4:30 pm Bikram yoga class, and work later on days that I need to make sure my clients are well taken care of.  Having my own practice allows me to achieve the work/life balance I have always dreamed of having.

Here are my tips for achieving a good work/life balance:

1.     Set a specific time that you will leave your desk every day.  Do not allow yourself to say “I will stay here until it is finished.”  That way of thinking allows you to waste time and get distracted, instead of forcing yourself to work with the time allotted for completing the task.  This can be hard to sell to hard workers, but trust that you will get all of the tasks completed and you can always return to the task in the morning. 

2.     Learn to prioritize your life - focus and put your efforts into action items that are truly important.  Let go of those items that are either insignificant or not time-sensitive.  Know that work will ALWAYS be there.  Your son’s third birthday only comes once in a lifetime.

3.     Don’t waste time on obligations that are not serving you.  Ask yourself “do I need to do this?” and cut out plans or obligations that are not serving you.  Sure, we could fill our schedules with endless networking events.  But, every so often we should ask whether we are getting the referrals or connection we want at these events and whether we should spend more time on other efforts that achieve better results.  

4.     Recognize that "mistakes" are a part of life, essential, and often present the opportunity for important learning opportunities.  One of my favorite phrases is: “sometimes you win, and sometimes you learn.”  

5.     Get active at least three times a week.  This could be yoga, or the gym, or a fitness class, or even a walk with your dog at night.  Getting your heart rate up and releasing some endorphins has a positive effect on your mood, stress level, and overall happiness.  

6.     Try meditation.  There are some amazing apps out there now, such as Headspace, that only ask 10 minutes of your time a day to check out and connect with the quiet space in your mind.  Not only does this help clear my head, but it also leaves me refreshed and full of ideas and energy when I’m finished.  I find that spending 10-30 minutes meditating per day actually gives me more motivation and efficiency throughout my day.  

7.     Seek balance in your life.  Make sure you are taking time to care for yourself so that you can care for your clients.  As with other high-pressure and demanding professions, attorneys who neglect their physical, psychological, spiritual, and interpersonal lives run the risk of making mistakes on the job.  If you are sleep-deprived, you will be doing your clients a disservice.  You may react with less patience toward a client that harms your relationship, or you may be less sharp and miss an important detail in their case.  Sleep and self-care will make you a better lawyer.  

8.     Accept that the practice of law is inherently stressful.  While it is important to accept this reality, it is not okay to succumb to it.  Know that your job is to advise your clients, not save them from every possibly bad scenario.  Sometimes you cannot be superwoman.  You can only do your best and say “I fought my hardest for you.”  One phrase I often tell myself is: “You can’t change the facts.”  We are given a set of facts and must do our best with those facts to advocate for our clients.  We can only do our best.  We cannot save the world.  

To close, I ask:  what do you want your loved ones to say at your eulogy?  “He was a really hard worker?”  Or would you like to know at the end of your life that you did not spend 90% of your time at your desk?  Hopefully these tools will help you to create a good work/life balance, ensuring that you spend the most time possible with your loved ones, restore your mental health and balance to ensure you are the best attorney you can be, and recharge your cup daily so that you can give your best 100% effort during your work day.  

A Life for a Life: a Hard Look at Washington State's Death Penalty

By Emily M. Gause

(As published in Washington Criminal Defense Magazine, November 2015)

“An eye for an eye will only make the whole world blind.”
— Mahatma Gandhi

In the span of two months, two King County juries returned two verdicts refusing to impose the death penalty.  Those two cases, State v. Christopher Monfort and State v. Joseph McEnroe, cost King County over $12.2 million dollars.  And, in the end, neither one received the death penalty as punishment for his crime.

Christopher Monfort was convicted of murdering a police officer.[i]  On Halloween night 2009, Monfort opened fire on a police car, killing Officer Timothy Brenton and wounding his partner, Brit Sweeney.

Joseph McEnroe was convicted for his role in a brutal family massacre, killing his girlfriend Michele Anderson’s family on Christmas Eve 2007 in Carnation.  Known as the “Carnation Killer,” Joseph McEnroe shot his girlfriend’s parents, their son and his wife, and their young two children.[ii] 

In the short period of just two months, King County prosecutors tried, but failed to convince a jury to kill these two murderers.  It is clear that Seattle jurors are unwilling to impose the outdated “eye for an eye” mentality by executing a human being as punishment for murder.   Because of these two verdicts, King County Prosecutors declined to seek the death penalty against Michele Anderson , the alleged co-defendant and co-conspirator of Joseph McEnroe. 

Such sentiment disfavoring imposition of the death penalty extends to other states as well.  On August 7, 2015 a Colorado jury returned a life verdict in the death penalty trial for James Holmes, the man convicted of the Aurora movie theater massacre that killed 12 and wounded 70 more.[iii]  In May 2015, Nebraska Senators voted to repeal the death penalty.  In August 2015, the Connecticut Supreme Court (4-3) held that the state's death penalty was in violation of the state's constitution and converted all pending death sentences to life sentences, reasoning:

"[T]his state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose."[iv]

In Washington, there have been 339 aggravated murder cases filed since 1981 when the death penalty was reinstated.  Out of that number, the state prosecutors sought death in 83 cases.  Out of those 83, juries only returned a verdict for death in 33 cases in the last 34 years.  And in those 34 years, Washington State has executed five people.

So, is the death penalty in Washington officially “dead”?   

This article explores:

·       The current state of death penalty policy in Washington State;

·       The problems with the death penalty:  the exorbitant costs, high number of reversals, and role of race in capital cases;

·       The Christopher Monfort case in more detail, including insight from the courageous public defenders that spent years fighting to have their client’s life spared;

·       What we can expect in 2016 – is the death penalty on its way out? 

The current state of death penalty policy in Washington State

Washington State’s death penalty law is codified in RCW 10.95.  It allows prosecutors authority to present the death penalty as one sentencing option to the jury in a first degree murder case.  A jury must find “there are not sufficient mitigating circumstances to merit leniency” in order to impose death.  RCW 10.95.030(2). 

In early 2014, Washington State’s governor, Jay Inslee, issued a moratorium on death sentences citing “problems that exist in our capital punishment system.”[v]  Data shows that out of 33 death sentences imposed since the punishment laws were enacted in 1981, over half were overturned (18 reversals out of 24 death sentences that have completed the appeal process).[vi]

The move makes Washington the latest in a series of states to step away from capital punishment and makes Mr. Inslee the third Democratic governor in recent years to say something similar. Gov. John Kitzhaber of Oregon announced in 2011 that he would not permit any executions on his watch, and last year Gov. John W. Hickenlooper of Colorado issued an indefinite reprieve in the only death penalty case during his tenure.[vii]

Despite the progress forward toward abolishing death penalty, a 2014 Gallup poll showed that 6 in 10 Americans favor the death penalty for convicted murderers.[viii]  That poll showed that 49% of democrats are in favor of death penalty, whereas 76% of republicans are in favor.[ix]  Many Americans, however, are not fully informed on the many problems with capital punishment:  the exorbitant costs, arbitrary application, number of exonerations or reversals, and racially-biased imposition of this practice.  

The Problems with Capital Punishment

Death is Expensive

In 2006, the Washington State Bar Association explored the costs of death penalty in Washington and found that these cases each cost an average of $517,000 more than cases where the penalty sought is life without the possibility of parole.[x]  

Most recently, Seattle University published a report in January 2015 that the average cost of a death penalty case in Washington is $3.07 million, compared to $2.01 million for cases in which the prosecutor does not seek the death penalty.[xi]

That study broke down the phases of a death penalty case and the costs associated with each phase.  

Defense and prosecution costs skyrocket when litigating a death penalty case.  It costs Washington State an average of $600,000 more to defend a death penalty case than it would to defend a murder case seeking a punishment of life without the possibility of parole.[xii]   Prosecuting an average death penalty case in Washington increases costs by over $221,000.[xiii]

SU Law’s study examined 147 aggravated murder cases since 1997 and limited its analysis to economic cost estimation alone.

In King County, defending Christopher Monfort has cost $5.8 million dollars so far.[xiv]   Prosecuting him cost approximately $1 million as of April 30, 2015.[xv]   Enforcing the death penalty isn’t cheap.  Joseph McEnroe cost the county $4.4 million, and while the death penalty was still an option for Michele Anderson, defense costs skyrocketed to over $4 million in her case alone.[xvi] The combined cost of prosecuting both McEnroe and Anderson was roughly $1.06 million through November 2014, according to the prosecutor’s office.[xvii]

Why the high costs?   What is it about a death penalty case that requires so much more preparation, diligence, and time?  Our Supreme Court has repeatedly emphasized the need for defense counsel to be death penalty qualified, and provided a spectrum of guidance about what is necessary to be “effective” in a death penalty case.  Two defense attorneys must be appointed for the trial and also for the direct appeal.[xviii]  Mitigation packages must be prepared, often in conjunction with an extensive psychological or neuropsychological evaluation. Investigators or mitigation specialists must dive deeper into an accused’s background, interviewing high school classmates, extended family members, and turning over every stone in search of any mitigating circumstances that could provide a basis for leniency.  

Not only is the investigation more lengthy and thorough, taking years to complete, a death penalty trial also takes much longer.   Death penalty cases require a death qualified jury, that is a jury who is fair and impartial when it comes to one of the most hotly debated policies in our nation.  So, jury selection takes weeks or even months to complete.  Trials take longer – there is both a guilt phase and a separate penalty phase.

An average of over $1 million dollars per case could be saved if prosecutors chose not to seek the death penalty.  Couldn’t the time and resources that public defense agencies and prosecutor offices put into a death penalty case be spent in so many more meaningful ways?  Aren’t government office resources already strung so thin?   As policy makers get together next legislative session for yet another conversation about death penalty, Seattle University’s 2015 study about costs will surely be put to good use.

Our Criminal Justice System Isn’t Always Right – Reversals and Exonerations

There have been 339 aggravated murder cases filed since 1981 when the death penalty was reinstated in Washington.  Out of that number, the King County Prosecutor sought death in 83 cases.  Out of those 83, juries only returned a verdict for death in 33 cases in the last 34 years.  And in those 34 years, Washington State has only executed five people.

Mark Larranaga, one of our state’s lead death penalty defense lawyers, has said “It’s a complete waste of time and resources.  We’ve had five executions in forty years.  That means 75-80 percent of death penalty cases have been reversed.”[xix]  

The Innocence Project has done incredible work at educating people nationwide about the number of innocent people that are convicted, based on junk science or flawed eyewitness identifications, and working to reverse those convictions.   As of June 2015, there were a reported 155 exonerations in 26 different states for people awaiting a death sentence.[xx]

Last year, two men were released from prison in Ohio after their exonerations from death row.[xxi]  The men were convicted of a 1975 murder based on the testimony of a 12-year-old boy.  Prosecutors filed a motion to dismiss charges against the men after the witness recently recanted, admitting he had not seen the murder at all.  Both men spent 39 years in prison – the longest time between conviction and exoneration of anyone released from death row nationwide.  

Mistakes happen.  Witnesses lie.  People make mistakes.  What would have happened if the witness recanted after these two men were executed?   Can we allow innocent people to be killed when we are aware of such inconsistencies and flaws within our criminal justice system?  

Our Death Penalty Policy is Imposed in a Racially Biased Manner

One of the nine men currently on death row in Walla Walla is Allen Gregory.  His appeal is currently before our state Supreme Court, written by defense champions Neil Fox and Lila Silverstein.  They commissioned a UW sociology professor to examine “The Role of Race in Washington State Capital Sentencing” between 1981 and 2014 to assist in their advocacy for Mr. Gregory.[xxii]   This is the first statistical study to examine race in capital sentences in Washington.   Using regression analysis, the study found that African American defendants in Washington are 4.5 times more likely than white defendants to be sentenced to death, after controlling for relevant case characteristics.[xxiii]  The statistical analysis also found that most of the variation in sentences cannot be explained – further proving that our death penalty truly is just as random and arbitrary as when it was abolished by Furman v. Georgia in 1972.  As articulated in briefing for Mr. Gregory, “social factors like race are not supposed to matter in the determination of who is sentenced to death.”[xxiv]  Using the study, Fox and Silverstein argue that the Washington Supreme Court should hold Washington State’s death penalty is unconstitutional in violation of the Eighth Amendment, and Article I, section 14 of the Washington Constitution.  

Gregory will be scheduled for argument sometime in winter 2016.

Down with Death – A closer look at Christopher Monfort’s case

Mr. Monfort had never been in prison before the day he shot and killed Seattle Police Officer Timothy Brenton.  He never denied committing the charged act.  Instead, his defense attorneys presented voluminous evidence that Mr. Monfort was legally insane at the time he shot the officer.   And despite the clear evidence that Mr. Monfort was not quite right in the head, Dan Satterberg still marched forward seeking justice through the death penalty.

I sat down with Carl Luer, one of the defense attorneys who spent five years defending Christopher Monfort, and asked him about what he thinks Mr. Monfort’s life verdict means for the future of Washington’s death penalty laws.  This is what he had to say:

“Time for death penalty in the United States has long since passed; we should join the other industrialized democracies in the world and abolish this practice.

It’s a little bewildering to me that we continue to cling to it.  In Washington State we have a somewhat Schizophrenic relationship with the death penalty.  A significant number of people want to keep it, but we also want to make sure defendants get full process and protections under the law at all costs. 

The death penalty is a tremendous waste of resources.”

Monfort’s case could have been resolved with a plea of guilty as charged with a sentence of life without the possibility of parole as early as July of 2010.  Instead, the King County Prosecutor spent over $6.8 million dollars and five additional years to pursue the death penalty, only to have a jury return a unanimous verdict for life in prison.   What a waste.

What’s Next?

The last Washington State jury to sentence a person to death occurred in 2013 in Snohomish County.[xxv]   Two years later, two King County juries could not impose death.  Has enough changed in two years to shift public opinion about this outdated punishment policy?  

Clarence Moriwaki, ACLU Washington’s Alternatives to the Death Penalty campaign manager shared the following insight about what we might see in 2016:

The growing state-wide trend for alternatives to the death penalty shows encouraging signs that are also being felt in Olympia. Bipartisan support for abolishing the death penalty has been increasing with each passing session, with successful hearings in the Washington State House of Representatives and Senate on bipartisan-sponsored bills which have earned positive media attention and editorial support.

The recent failure of juries in King County to impose the death penalty on two highly publicized, emotionally charged murder cases (one jury spent less than an hour to return a sentence of life without the possibility of release) –as well as the more than $12 million spent on these cases – is adding an exclamation point. When given the choice, the public is turning away from the wasteful use of tax dollars to pursue a broken government program – one that does not deter murders, does not make us any safer, is neither swift nor just, holds a real risk of executing the innocent, makes celebrities out of murderers, and adds excruciating pain to victims’ families with every courtroom deliberation.

Will Washington following in Nebraska’s footsteps by repealing the death penalty in the 2016 Legislative Session?  As criminal defense attorneys, we can only hope.   

Given what we know about the enormous cost to taxpayers, the number of death sentences that are eventually overturned, and the arbitrary and racially-biased imposition of capital punishment, is our death penalty statute still constitutional?   We will find out in 2016.

[i] Sara Jean Green, “Monfort Sentenced to Life in Prison for Killing Seattle Police Officer,” Seattle Times,  July 23, 2015
[ii]   Jennifer Sullivan and Steve Miletich, “Split Jury Spares Carnation Killer McEnroe from Death,” Seattle Times, May 13, 2015
[iii]  Stave Almasy, Ann O’Neill, Sara Weisfeldt, and Ana Cabrera, “James Holmes Sentenced to Life in Prison for Colorado movie theater murders,” CNN, August 8, 2015
[iv] State v. Santiago, 2015 BL 260876, Conn, SC 17413, published August 25, 2015
[v]   Ian Lovett, “Executions are Suspended by Governor in Washington,” The New York Times, February 11, 2014
[vi]  Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman & Mark Larranaga, “An Analysis of the Economic Costs of Seeking the Death Penalty in Washington State,”  Seattle University, January 1, 2015, at page 69. 
[vii] Ian Lovett, “Executions are Suspended by Governor in Washington,” The New York Times, February 11, 2014; Death Penalty Information Center, “Gov. John Kitzhaber of Oregon Declares a Moratoium on All Executions, November 12, 2011
[viii]  Jeffrey M. Jones, “Americans’ Support for Death Penalty Stable, Gallup, October 23, 2014
[ix] Id.  
[x]  Washington State Bar Association, Final Report of the Death Penalty Subcommittee of the Committee on Public Defense, December 2006
[xi] Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman & Mark Larranaga, “An Analysis of the Economic Costs of Seeking the Death Penalty in Washington State,”  Seattle University, January 1, 2015, at page 4.
[xii]  Id. at Figure 1
[xiii]  Id.
[xiv] Sara Jean Green, “Monfort Sentenced to Life in Prison for Killing Seattle Police Officer,” Seattle Times, July 23, 2015
[xv]  Id.
[xvi]  Jennifer Sullivan, “Prosecutors Won’t seek Death Penalty for Michele Anderson,” Seattle Times, July 29, 2015
[xvii] Jennifer Sullivan and Steve Miletich, “Split Jury Spares Carnation Killer McEnroe from Death,” Seattle Times, May 13, 2015
[xviii] Superior Court Special Proceeding Rule 2 – Appointment Of Counsel
[xix]  Lael Henterly, “Holding Three Simultaneous Death Penalty Trials in King County is Unprecedented and Hugely Expensive,” The Stranger, November 12, 2014
[xx]  Death Penalty Information Center, Innocence Database, last updated July 22, 2015
[xxi] M. Gillispie, "Judge dismisses two men charged in 1975 slaying," Associated Press, November 21, 2014.
[xxii] Katherine Beckett & Heather Evans, The Role of Race in Washington State Capital Sentencing 1981-2014, Department of Sociology, University of Washington, filed October 13, 2014 in State v. Gregory, # 88086-7
[xxiii] Id. at 30, 33.
[xxiv] State v. Gregory, # 88086-7, Appellant’s Reply Brief at 51.
[xxv] Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman & Mark Larranaga, “An Analysis of the Economic Costs of Seeking the Death Penalty in Washington State,”  Seattle University, January 1, 2015, at page 71 (State v. Bryon Scherf, sentenced on May 9, 2013)

Emily M. Gause has been practicing in criminal defense since 2011 and recently opened her own solo practice (The Law Offices of Emily M. Gause PLLC).  She focuses on felonies in state and federal courts throughout Washington.  She can be reached at emily@emilygauselaw.com. Special thanks to Timera Charlene Drake for her assistance with research and editing.  Appreciation to Carl Luer, Lila Silverstein, Neil Fox, and Clarence Moriwaki for their contributions to this piece.  

Our BULGING prison population

25% of our global population is locked up in cages in the United States.  Imprisoned.  The United States is the world’s leader, locking up 2.2 million people currently. One in every thirty-five adults are under some form of correctional control (prison, jail, parole, or probation).  

Dan Satterberg, King County’s Elected Prosecutor, recently gave a TED talk about criminal justice reform.  He touched on issues that intersect with our criminal justice system:  addiction, mental health issues, domestic violence, and issues compounded by poverty and lack of opportunities.  He focused on the person behind the crime and the issues that can cause people to seek criminal activity.   

Satterberg also touched on the fiscal issue that over-incarcerating people creates on our already strapped government budgets.  We have never been safer, according to crime statistics, and yet we are locking up more and more people.  18,000 people are in prison in Washington state.  And we are at 100% capacity currently.  The legislature has denied pitches to build more prisons. 

In fact, as recently reported in the Seattle Times, Washington State is now paying private prisons in other states to house our prisoners at the price of $60 per day per inmate.  That is a LOT of money that could go to education, our homeless population, mental health facilities, resources for people who are coming out of our prisons, or other social justice projects.  

So what do we do?  What is the solution?  

I firmly believe that we send people away for longer than necessary.  Even the “violent offenders” (who often consist of a first time offender that did one violent act in his life and is now spending decades in prison).  We should be diverting first time offenders away from the system rather than pushing them inside concrete walls with other prisoners thereby often creating “career criminals.”   Most of my clients are first time offenders, people who spent their entire lives contributing to society, paying taxes, exceling at their jobs and careers, and creating families.  Suddenly they may find themselves accused of a crime they did not commit.  Or, they may have reacted to a volatile situation in a panicked state of fear, and in a way that they are now facing a decade or more of prison time for.   First time offenders may be guilty of a crime, but are they really the “dangerous criminals” that need to be locked up to truly protect society?  I’m not buying it.  The vast majority of people who are accused of a situational crime, one where a unique set of circumstances caused them to act in a way that is contradictory to the rest of their lifestyle and actions, will never again violate the law.  It was aberrant behavior that will never be repeated.  So should we lock these people up for years and years?   I don’t think so.  

Criminal acts have consequences – I think most people would agree that we must promote respect for our laws with a criminal justice system that punishes for criminal acts.  However, what should that punishment be?  How long should that punishment be?  Is there an absolute need for that punishment to consist of years of prison time?  Are there other options?  Is there a better way? 

I certainly think so.  I welcome your thoughts.  

Disclaimer (because I am a lawyer):  This post and any legal information is provided for general informational purposes only and is not intended to be legal advice specific to you.  The general information is not a substitute for the advice of an attorney in your jurisdiction.  The attorney-client relationship is not established by this post.

Question EVERYTHING: A criminal defense blog

Emily Gause-Gause Law Offices

Welcome to my Blog!

Welcome to my first official blog post!  I started Question EVERYTHING because I wanted a space to share my passion for criminal defense law. Deciding to become a criminal defense attorney was not simply a choice, it was more like a "calling."  From my very first criminal justice 101 course in college, I was hooked.  I loved that the law was always changing.  And I became dedicated to challenging the many, many injustices in our system. 

I now feel lucky to be able to make a living doing what I am passionate about, something that does not feel like a "job" because I truly enjoy what I do.  

I started this blog because I want to share knowledge, inspire others to campaign for change in our criminal justice system, and have an outlet for ranting about some of the oppression that I see on a daily basis in our system. 

I'll also share commentary on top media crime stories, shine a light on the dark hidden parts of our criminal justice system, and give information to help educate you about criminal law and procedure.

Feel free to post comments and share feedback.

"There may be times when we are powerless to prevent injustice, but there must NEVER be a time when we fail to protest."   ~ Elie Wiesel

Disclaimer (because I am a lawyer):  This post and any legal information is provided for general informational purposes only and is not intended to be legal advice specific to you. The general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney-client relationship is not established by this post.