Challenging Restitution: an Often Overlooked Area of Advocacy

By Emily M. Gause

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

Defense-magazine-august-2018 Cover.jpg

                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


[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.

Challenging Restitution page 1.png

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.

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 practice (Gause Law Offices).  She focuses on felonies in state and federal courts throughout Washington.  She can be reached at

[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
[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, (Oct. 13, 2014),
[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
[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 practice (Gause Law Offices).  She focuses on felonies in state and federal courts throughout Washington.  She can be reached at 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.