Jennifer Witt

Jennifer Witt

As Bob Dylan sang to us in 1964, The Times They Are A Changing. Historians say Bob wrote the song in October of 1963 and so it seems appropriate that this month we want to revisit the message again, nearly 55 years later.

The picture above is Ryan’s mother and my mother doing a little pellet gun practice with our kids. I realize it isn’t the normal image one might advise I use in today’s climate of gun reform or gun violence but, I assure you, they are peaceful and non-violent Grandmothers.

I use this picture because it tells a story of time and perspective. If this picture were taken six or seven decades earlier, these ladies wouldn’t be holding pellet guns. Ryan’s mother was raised in Texas and my mother was raised in Montana. Like all people, they are a product of their environment. What is perceived as normal is based on what you experience all around you. Ryan was raised in Alaska, where everyone had a gun rack on their truck (usually with a gun in it) parked at school. When he lived in Fairbanks, everyone entered the schools and the banks with their guns strapped on. In Texas, Montana, and Alaska, guns were used for protection—necessary protection for the survival of you and your animals.

When Ryan came to the lower 48, he noticed something different. Guns were carried for more than protection. There was some status to having a gun and being able to talk about your gun. For our mothers and for Ryan, you never talk about a gun, you use a gun. If a bear is coming at you, there isn’t a lot of gun waving and and threatening, “I’m going to put a cap in you, bear.” You just fire off a round and hope the bear gets the message that she should retreat.

Ryan and I both grew up knowing that a gun wasn’t a way to solve a problem (other than a bear coming at you). In our upbringing, guns really weren't associated with fighting. That didn’t mean we weren’t taught about fighting. Knowing when to fight and how to fight was just as valuable as knowing how to participate in family chores, take care of your pets, or do well in school. It was a life skill. I don’t recall who taught me how to hold my fist, but I very clearly recall understanding that I would break my thumb if I did it the wrong way. Built into the lesson plans was also an overall understanding of “don’t write checks that your body can’t cash.” Basically, don’t run your mouth in the wrong place or to the wrong people. We also learned that you don’t start the fight but, in defense, you better end the fight.

I realize there are people who only believe in “turning the other cheek” and might take offense to our early lessons—but I think they were valuable. We learned time and place or the context for when defending yourself is appropriate. I have no problem admitting that I’ve thrown a punch. I didn’t start the fight but, when someone hit my cousin, I think my response was completely appropriate. I grew up hearing stories about how my Uncle Ray, who was developmentally disabled, was teased by some boys on the school bus. I don’t recall if it was my Uncle Bob or Uncle Bud who had a little “Billings-style boxing match” after they got off the school bus, but the teasing stopped. In that way, kids learned not to run their mouth or write checks their body couldn’t cash. For me, the guy who hit my cousin learned fairly that he didn’t have the funds to cash that check.

When Ryan came down from Alaska to visit a friend heading out on deployment, he had his first interaction with “weapon” fighting. He and his friends were strolling through an area with fraternities when a group of about 20 young men came out of their frat to fight. One of the college kids threatened to cut them with a knife. Ryan kind of laughed at that because it sounded so ridiculous. I will spare you the details (although some of it is quite funny) but, word to the frat world, boys should not fight men—especially Alaskan men who lift weights 3 hours a day and one is the heavy weight boxing champ of Alaska. Don’t worry, there was no blood shed—just some bruised egos.

The point of these stories is that it is quite obvious we grew up in different times. If you threatened someone, insulted them for their sexuality or race, or made derogatory comments about their family, no one felt sorry for you when the insulted person cleaned your clock. No one called the cops or the prosecutor. But, times are changing. Instead of learning that you shouldn’t run your mouth, many people run their mouth and then waive around a weapon. They start fights but try to look like a victim when law enforcement arrives.

Why would we highlight this strange change in times? Well, because, more and more, the people who actually start the fight tend to win. By win, we mean they are not the ones who end up being arrested. They love to run their mouth off in a bar, insult your girlfriend, and call you gay. You might ask to “take it outside” to teach them a lesson but they head out to their car to pull out a gun. These people who use “fighting words” don’t actually fight and, when they do, they usually get their @#% kicked. So, when law enforcement arrives, you get arrested. If you never hit them, they will still tell law enforcement that you followed them outside and they felt threatened. The times are changing—and they play by different rules.

So, while many of us could understand that “taking it outside” might seem reasonable, that response no longer works the way it did decades ago. You have to back down. You have to take the insults. You have to walk away. The real reason you must retreat is that the check your body has to cash is way too expensive today.

Today, law enforcement is called for every altercation. There is very little “down time” and, when they respond, situations often escalate rather than deescalate. They don’t have time (or perhaps desire) to find out who started the fight and why. Usually, the most sympathetic (sometimes just pathetic) person is deemed the “victim.” The other person is arrested. Additionally, depending on the county or city you were arrested, certain prosecutors don’t care whether the person baited you into a fight. It doesn’t matter that they called you a racially derogatory term. If you choose to fight, you have to accept that your actions will likely amount to a criminal charge. Law enforcement doesn’t hold trial at the bar or the sports field. They simply arrest you, file a report, and you go to jail.

Getting arrested is just the start of the “costs” of fighting. To hire a defense attorney who can present your side of the story to the prosecutor, it will cost you anywhere from $2500 to $10,000—and there are no guarantees. Criminal charges are a lot like math equations. If the prosecutor can make the three or four elements of a criminal statute add up, you get convicted. If you don’t want to test your luck at trial (and face a much longer sentence), you might feel forced to plea to a lesser charge. Additionally, the process lasts a long time. While you’re trying to move on and apply for a new job, your case may linger for months or even a year. In that time, no one can answer whether you will lose your job, spend months or years in jail, and be forced to say goodbye to your family.

Hopefully, if you’re like us, as we have grown older we rarely encounter situations where a fight could happen. Unless someone grabs the last Costco pumpkin pie during Thanksgiving week, I’m probably not “taking it outside” anytime soon. However, when it happens to those of us from another era, it’s important to know what our response has to be. We need to check our egos and decide whether the fight is truly necessary. While someone should get their ass kicked, you probably don’t want to be the one paying the price for it. While it’s hard to walk away, remember that a pathetic name-calling jerk is not worth your freedom or hard-earned money.

Sometimes it’s hard to react differently when your instincts say something else. So, have a game plan. We take the calls after the fact and see the mess it creates. We don’t want more of these calls. In our minds, there is an element of unfairness to criminal charges for certain fights—but, despite this, we must learn to change with the changing times. In the words of Bob Dylan, “You better start swimmin’ or you’ll sink like a stone. For the times they are a-changin’.”

October 12, 2019

Disorderly Conduct

Disorderly Conduct charges generally arise when tempers and language boil over the generally accepted social norms. When a confrontation escalates to the point that there is a likelyhood of violence, the person who is raising the temperture of that confrontation can be charged with Disorderly Conduct. This is a criminal charge that is brought by the State (or a City), and not by a private individual.

Do You Have A Disorderly Conduct Charge? CLICK HERE And We Will Contact You Within 15 Minutes

According to RCW 9A.84.030, a person commits disorderly conduct if she:

1. Uses abusive language and thereby intentionally creates a risk of assault;

2. Intentionally disrupts any lawful assembly or meeting of persons without lawful authority;

3. Intentionally obstructs vehicular or pedestrian traffic without lawful authority; or

4. Meets the following:

(i) Intentionally engages in fighting or in tumultuous conduct or makes unreasonable

noise, within five hundred feet of:

(A) The location where a funeral or burial is being performed;

(B) A funeral home during the viewing of a deceased person;

(C) A funeral procession, if the person described in this subsection knows that

the funeral procession is taking place; or

(D) A building in which a funeral or memorial service is being conducted; and

(ii) Knows that the activity adversely affects the funeral, burial, viewing, funeral procession, or memorial service.

If the prosecutor is charging a person under the first part of the statute for provoking a fight, there must be some evidence that your “fighting words” were intended to actually start a fight. A person can be insulting to another person and make offensive statements but, in some circumstances, the words rise to the level that an average person would understand the statements to be provoking a fight. Certainly, if the defendant made statements like, “You think you can take me?” or “I’ll knock that smile off your face.” Statements that are derogatory to a person’s race, ethnicity, or sexuality can also rise to disorderly conduct.

Under the second prong, a person yelling at a City Council meeting could be charged with disorderly conduct. If a person yells or makes offensive statements during the time he or she is permitted to address the Council, this is probably not disorderly conduct. However, if the person continues to yell after their turn or yells while other people who are speaking, this will likely rise to disorderly conduct.

The third prong is used mostly with political protests. If a person gathers with other people and intends to stop traffic to garner attention to a cause, it would be hard to argue that this act was unintentional. If the organizers of the protest have the appropriate permits to hold the rally or demonstration, blocking traffic should not rise to disorderly conduct. If the protest ventures outside the permitted area or designated area for marching, it could be possible to be arrested for disorderly conduct.

Finally, if a person intends to disrupt a funeral service and knows that it will adversely affect the event, this is disorderly conduct. This is a fairly straightforward. If a person was not invited to a funeral and is there for the purpose of protesting or causing a scene, this conduct will likely rise to disorderly conduct.

There Are Positive Ways To Resolve A Disorderly Conduct Charge

There are defenses to disorderly conduct but, for the most part, a defense attorney is attacking the element of intent. Depending on the reason for the criminal charge, there could be defenses as to whether abusive language or “fighting words” were stated by the defendant. In the case of disrupting a funeral, was the defendant within the required 500 feet of the event? If you were arrested at a protest or a City Council meeting, there could be a challenge to proving identity. How did the officers know the defendant was the person yelling or causing the disruption? Disorderly Conduct can be a complex charge and it is best to consult an experienced criminal defense attorney for advice on the unique challenges to a particular case.

Additionally, Disorderly Conduct cases are handled in District and Municipal Courts, as they are misdemeanors. Being that they are handled in these “lower” Courts, there are more options regarding how to resolve a Disorderly Conduct case other than going to trial or pleading guilty.

Most jurisdictions have some form of a Pre-Trial Diversion Agreement, which is essentially a contract between the Defendant and the Prosecuting Authority. With this type of Diversion Agreement, the Court does not sentence a defendant, the Court merely approves the contract between the parties (the Defendant and the Prosecutor). If the defendant abides by the terms of the contract, the Disorderly Conduct charge is typically dismissed at the end of the agreed upon term. Procedurally, the case goes onto a long continuance and then ends in a dismissal – there is never a conviction if all the terms are met.

CLICK HERE FOR MORE INFORMATION ON PRE-TRIAL DIVERSION AGREEMENTS

If a defendant wishes to not resolve the matter through a Diversion, they always have the right to go to trial. At trial, a defendant can require the Prosecutor to prove every element of the Disorderly Conduct charge beyond a reasonable doubt.

Witt Law Group serves individuals who have been charged with the crime of Disorderly Conduct in Kitsap, Pierce and Jefferson Counties. We also handle cases in nearly all the cities within those Counties. We have offices in Gig Harbor, Bremerton and Poulsbo for your convenience. We offer free consultations and can be reached at (360) 792-1000 (Bremerton) or (253) 312-3838 (Gig Harbor) or (360) 773-8598 (Poulsbo) or you can text one of our attorneys at (360) 710-0027.

If the topic of Disoderly Conduct was interesting to you, please CLICK HERE to read more similar articles in our Blog.

More and more people are receiving a Summons to Appear on criminal cases and it’s causing some confusion. Why is the Prosecutor waiting so long to decide whether I broke the law?

Why The Change?

 The landscape of criminal law has changed somewhat. Part of the change is the way in which law enforcement responds to alleged crimes. Lower priority crimes where there isn’t an imminent public safety concern, such as property crimes or trespassing, the officer might investigate the crime days or weeks later. In those cases, the person or people who are believed to have committed a crime will receive a Summons to Appear on the criminal charge weeks or months later. Where law enforcement deems there could be a threat to public safety or courts generally want to set some kind of conditions on behavior of an accused, law enforcement will arrest the person so these conditions can be set immediately. This happens more often in cases of Assault or DUI.

 

But I Received a Summons for a DUI

 While it is true that most DUI charges originate by way of arrest, booking, and appearing for Arraignment within a few days, that seems to be changing. Where the person alleged to have driven impaired is accused of using marijuana, the officer will draw blood for a THC reading and other substances. Those blood samples are sent to the state toxicology lab and the result is returned to the arresting agency. Currently, the results are returned almost a year after the arrest. This delay is the longest we’ve ever seen it.

 

For marijuana arrests (and other substances), the person accused of driving impaired might be arrested and released or no arrest may occur at the scene. The person might reasonably believe he or she has not committed a crime and follow up is unnecessary. This would be a bad assumption! If you or someone you know has been arrested for a crime or been in contact with law enforcement as a suspect, they MUST keep their address up to date with DOL. Realize that doesn’t mean the Summons will definitely reach you. It is still possible that a Warrant will be issued for your arrest.

 

I Gave DOL My Current Address But I Never Received The Summons

 This scenario is becoming a more common occurrence. The person who was arrested and released moves away (not yet formally charged with DUI) and is careful to update DOL with their new mailing address yet ends up with a warrant. Unfortunately, if the officer wrote down the address from your license, this might trump any DOL updates. To be honest, we aren’t certain about the many ways the address issue is arising. We have had clients call DOL 3 to 4 times a year to make sure their mailing address is accurate and the Summons will still be mailed to an old address.

Avoid The Warrant! 

One way to avoid getting a Warrant in the process of being charged through a Summons is to hire an attorney to monitor your case. At Witt Law Group, we contact the Prosecutor’s office weekly to check on our clients’ status. If they have been charged, we notify the client and file our Notice of Appearance on the case. A Notice of Appearance can’t be filed before the case is charged because there won’t be a case number. Once we have the case number, we can request discovery from the Prosecutor (all the evidence that the state is using to prosecute you) and begin working on your defenses. When our Notice is filed, we will also be notified of your upcoming court dates and immediately contact you so that you do not miss a date. When a person misses their initial court appearance, it is very bad for the case and a Warrant for your arrest will be issued.

Summons For Crimes In Kitap County

Finally, Kitsap County has been using Summons more frequently due in part to the increase of marijuana DUIs. However, it should be noted that we are seeing an overall increase on charging through Summons in all neighboring municipalities. Bremerton and Poulsbo are increasing this practice so be aware that, if you have had contact with law enforcement in these cities and were not arrested, you should seek a consultation regarding your risk for a future criminal charging through a Summons.

July 16, 2019

Bail

14 Billion Reasons Why We Need Bail Reform 

 Most Americans do not fully understand the pretrial portion of our justice system. While many know you are presumed innocent until proven guilty in a court of law, most don’t realize that hundreds of thousands of Americans sit in jail waiting to have their day in court. They are not sitting in jail because they have been convicted or plead guilty. They sit in jail because they are too poor to bail out.

According to the Pretrial Justice Institute, nearly 750,000 people are held in our nation’s jails daily. Two-thirds of these people have not been convicted of a crime. Taxpayers spend approximately 38 million per day and 14 BILLION annually to house citizens waiting for trial who are mostly low risk. Pretrial inmates account for 95% of jail growth from 2000 to 2014. (see Pretrial Justice Reports—Pretrial Justice: How much does it cost? & What pretrial system look like without money bail)

Why are so many Americans sitting in jail without a conviction?

According to a report on the Economic Well-Being of US Households by the Board of Governors of the Federal Reserve System, nearly half of Americans can not afford a $400 emergency. Posting the $5,000 bail for a DUI, whether by using cash or a private bail bondsmen, is simply not possible.

Consequently, poor and working class people are held in custody while they wait for trial. As a result, they have limited hours in which they can meet with their attorney (assuming their public defender will have the time to see them in jail) and they will pay the average $1 a minute charge to use the jail phone to reach their attorney and family members. For most, a jail stay of more than 3 days will cause catastrophic damage to their lives—losing jobs, falling behind in rent or mortgage, and negative family consequences due to stress. (see Reports from Pretrial Justice Institute) On the other hand, wealthier members of the community are able bail out, go back to work, be with family, and strategize with their attorney prior to making any significant decisions regarding their case. 

Why do we keep people in jail if they haven’t been convicted? 

In most cases, when a person is charged with a non-capital offense, the presumption is that the accused can be released on their personal recognizance during the pretrial phase. Typically, the judge will set pretrial conditions of release only where it is the interest of securing the defendant’s appearance in court, protect the community from violent crime, and prevent any obstruction of justice. These conditions do not violate the Fourth Amendment so long as they are legitimately related to the objectives of securing a defendant’s presence and public safety. In Washington, criminal Rule 3.2 and Criminal Rule for Courts of Limited Jurisdiction 3.2 govern pretrial release conditions.

The challenge we see in Kitsap County is that the defendant who was never able to post the bail that was automatically set at arrest by a bail schedule (i.e. $5000 for a DUI), has frequently served the jail time required for the crime charged. This means, they can just plead guilty, be released, and deal with the resulting fines, fees, and any administrative consequences or punishments. Unfortunately, that plea of guilty may have been a mistake considering the State’s evidence or because, without a negotiated plea by an experienced defense attorney, the conviction will cause significant collateral damage for the defendant—such as immigration consequences, job loss, loss of housing, discharge from the military, or even loss of federal student loans.

Is a “bail schedule” allowed under the law?

Yes. So far, there are many counties and municipalities using “schedules” that essentially list a crime and set a standard bail amount without any independent review of whether the accused is likely to appear for court or is a risk to the community. At the first appearance or arraignment, the defendant will be permitted to argue that bail is unnecessary to secure his presence to the next hearing. This is acceptable if the judge does an independent assessment of the defendant’s unique circumstances when reviewing the interests of 1) securing the defendant’s appearance at the next hearing or trial, and 2) public safety. Unfortunately, there are some situations where the predetermined bail schedule is de facto part of the conditions of pretrial release. Under the law, this is not allowed. Furthermore, practically speaking, when a bail schedule is set unreasonably high for a misdemeanor defendant who is poor, there is almost no chance that he will be able to bail out before the initial hearing to consult with an attorney, gather evidence, or provide information from witnesses.

How Does Kitsap Measure Up? 

Despite having no criminal history, no failure to appear for court dates, or risk to the community, it is very likely that a person arrested in Kitsap County for DUI will have bail set at a minimum of $5,000. If you were arrested Friday night and don’t have the money for bail, you will sit in jail until Monday’s Arraignment calendar. Unless you have criminal history or there are unusual facts, it is highly possible that you’ve served all of the jail time required for your alleged crime. As noted above, this creates big incentive for poor people to simply plead guilty so they can get out of jail. Knowing that bail, in some amount, will remain as a pretrial release condition, a poor defendant often finds pleading guilty and going home more favorable than sitting in jail for weeks or months until the trial date. The person has a conviction now, but they also have their freedom. It’s a tough predicament.

While it is true that this can happen in other counties, some of the largest in Washington have already made great reform and no longer use bail schedules. King County, Spokane County, and Yakima County have made great strides at reform, which has saved taxpayers a significant amount of money in pretrial incarceration costs. These counties use evidence-based assessment protocols on an individual basis to determine whether a person is a flight risk (i.e. won’t show up for court) and/or is a risk to the community. According to Pretrial Justice Institute, only 3.4 percent of citizens in Washington live in a county using a validated pretrial assessment, giving our state a C overall on the report card (factors such as pretrial detention rate, elimination of money bail, as well as other measurements are considered in grade report).

We are hopeful that Kitsap County will eventually move in the direction of reform. For now, we are unaware of any changes to the current system but, with larger counties already making changes and seeing the benefit of securing presence in the courtroom, safety in the community, and significant savings to taxpayers, it is possible Kitsap County could be next.

Variations In Surrounding Municipalities 

Why the difference in setting bail for nearby cities? Well, as the saying goes, follow the money. Local municipalities must pay a fee to the county jail when a police officer from Poulsbo or Bremerton book a suspect into the jail. Think of it as a hotel charge. The law enforcement officer is taking care of business in the city limits but using the “hotel” belonging to the county. This fee comes out of the city’s overall budget. Therefore, the “culture” understood by law enforcement is to use the city budget for post-conviction incarceration rather than pretrial holding of a suspect. This is the reason many people in Poulsbo will be “cited” and released. Basically, they are given a summons to appear in court on a set date. For those facing a Poulsbo criminal charge, this will generally be the next available Wednesday. There are exceptions to this booking/bail “culture” for people who have a history of failing to appear for court, are a flight risk, or are a danger to the community, but those cases tend to be the exception. 

If you are arrested in Bremerton, you will fall somewhere in between the booking rate of the County and Poulsbo. The Bremerton Police will fairly regularly book a suspect into the jail with the “bail schedule” but not as frequently as occurs in surrounding Kitsap County.

Around The State

As noted above, larger counties around the state have moved away from having bail schedules. They are using evidence-based assessments to evaluate, on an individual basis, whether a person is a flight risk and/or a risk to the community. For example, Yakima County is using the PSA (Arnold Foundation Public Safety Assessment), Spokane County Superior Court is using SAFER (Spokane Assessment for Evaluation of Risk) and Whatcom and Thurston Counties are using ASRA (Adult Static Risk Assessment). Overall, only 10.3% of Washingtonians live where they would be covered by a pretrial risk assessment protocol. 

According to the Washington Pretrial Reform Task Force Report, more than half of inmates in Washington’s jails are full of people being held pretrial, meaning they have not been convicted of a crime. In King County, despite reform efforts, it is still over 70%. Clearly, this is a problem for those in the defense bar who feel this is a violation of rights but also for the cost to taxpayers. In almost all cases, the taxpayers are paying the "hotel bill" to hold all of these low risk inmates. The Task Force recommended all jurisdictions create a pretrial risk assessment tool. This means, “an actuarial tool that uses data to determine the likelihood that a defendant will fail to appear or commit a criminal offense while on pretrial release.” 

pdfTASK FORCE REPORT

Around The Country

Despite tremendous interest in bail reform, bail schedules have yet to be ruled unconstitutional. While the practical impact of their use often leads to violations of the Equal Protection Clause and Due Process violations, they are still in use in most states. Unfortunately, the Supreme Court has yet to rule on bail schedules.

One relevant federal rulings on this issue is O’Donnell v. Harris County, 892 F.3d 147 (5th Cir. 2018), in which the Fifth Circuit reviewed how predetermined bail amounts for arrestees were adhered to in nearly 90% of first appearance determinations regarding pretrial release conditions. The Court did a very exhaustive examination of how the bail schedule actually operated, where the policies and procedures created a disparate impact for indigent defendants and also lacked any meaningful alternative considerations. The ruling tightened the lower court’s ruling directing Harris County to make immediate changes to the bail system for misdemeanor arrestees but, in a nutshell, agreeing that the bail practices by Harris County were in violation of the Equal Protection Clause and violate Due Process. It’s a long read but quite informative. 

One interesting excerpt from the 193 page District Court’s ruling in O’Donnell, was the review of similar challenges in various states. These challenges have produced significant responses from a wide range of legal authorities in the form of amicus briefs, including the American Bar Association and the US Department of Justice. Below is a portion from O’Donnell, describing the ABA’s contribution to Walker v. City of Calhoun, a case arising in Georgia that was heard by the 11th Circuit.

“The American Bar Association’s amicus brief in Walker argued that “[m]onetary conditions of release should never be drawn from an inflexible schedule, should be imposed only after consideration of the defendant’s individual circumstances, and should never prevent the defendant’s release solely because the defendant is unable to pay.” Pls. Ex. 12(ff) at 12. The Third Edition of the ABA Standards for Criminal Justice, Pretrial Release (3d ed. 2007), recommend “procedures designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond.” Standard 10-1.4(a). Jurisdictions should impose financial conditions only “when no other conditions will ensure appearance,” and financial conditions “should not be employed to respond to concerns for public safety.” Standard 10-1.(4c)–(d). The Standards also emphasize that “[t]he judicial officer should not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay.” Standard 10-1.4(e).

The American Bar Association’s brief emphasizes that “[u]nwarranted pretrial detention infringes on defendants’ constitutional rights, ‘making it difficult for the defendant to consult with counsel, locate witnesses, and gather evidence’ and placing a particularly heavy burden on ‘poor defendants and on racial and cultural minorities.’” Pls. Ex. 12(ff) at 14 (quoting Standards at 32–33). The commentary to the Standards states that “[i]f the court finds that unsecured bond is not sufficient, it may require the defendant to post bail; however, the bail amount must be within the reach of the defendant and should not be at an amount greater than necessary to assure the defendant’s appearance in court.” Id. (quoting with emphasis Standards at 43–44). The brief concludes that detaining a defendant solely for failure to pay a secured financial condition of release is unwarranted and unconstitutional. Id.” 

pdfCato Institute’s summary of O’Donnell

pdfO’Donnell District Court ruling 

O’Donnell 5th Circuit Ruling 

pdfStandford Law Review—Punishing Poverty

 

Why unnecessary use of bail matters?

As the Pretrial Justice Institute and the Washington Pretrial Reform Task Force noted, there are disparities in legal outcomes for those unable to post a bond or bail. Individuals who were detained prior to trial were four times more likely to receive a sentence of imprisonment and three times more likely to be given a longer prison sentence. Lowencamp, C., VanNostrand, M., A.M. (November 2013) Investigating the Impact of Pretrial Detention on Sentencing Outcomes. Being poor is not a crime and, therefore, justice should not serve the poor any differently. The disparate outcomes are not acceptable in our justice system.

If you or a loved one has been arrested and need help finding a local bail bondsmen, give us a call so we can help.

We have always enjoyed providing legal services in Kitsap County because it offers such a diverse group of people and legal challenges. In such a small geographical area, we have city, county, and federal laws pertaining to crimes such DUI, marijuana possession, trespassing, theft as well as many other criminal charges.

We Help Our Military

With Bangor, Naval Base Kitsap, and the PSNS, we find ourselves also helping many military members. The penalties and consequences for a crime, such as DUI, can mean very different things to a person in the military. Often, security clearances are the most immediate impact for military service members but jail time and losing the ability to drive without an ignition interlock is also very challenging. Additionally, you might find yourself facing "extra" punishments from your Commanding Officer. The lawyers at Witt Law Group can help facilitate communication between you and your Command regarding the Kitsap County criminal charge so that you can manage the consequences and move forward with a plan for success.

We Are Kitsap County Lawyers

As a local law firm, we care deeply about those in our community and trying to minimize the devastating consequences of a criminal charge. It is important to be able to learn from mistakes and then move on to being a productive member of our community. If you are arrested and charged with a crime or receive a summons to appear for a crime, it is important to seek the counsel of a criminal defense attorney. Local is better. Experience matters. Don't delay and think your problems will fade.

We Can Help You

In Kitsap County, early intervention with a lawyer can make a meaningful difference in the outcome of your case. You have nothing to lose with a free consultation and we have offices in Bremerton, Gig Harbor, and Poulsbo. Let us know how we can help.

When you find yourself charged with a crime, it is normal to go through a state of shock. After all, if you’re like 90% of our clients, you’ve never been in trouble before. Nearly half of our criminal defense clients have never even had a speeding ticket. An arrest and possible jail time is an unthinkable situation for most people.

In response to this state of shock, we often hear about every wonderful thing our clients have done in their lives. They are not “criminals” and this can’t really be happening. This is a tough spot for defense attorneys. We see this phase so often that we want to blow right past it and move to important things—relevancy and admissibility. It can seem that we don’t care. We do! However, our job is to care by doing what is best for you. This means getting to the facts of the case, the elements of the crime, and what we will use to negotiate a resolution in your favor.

The Interview

When interviewing a client, defense attorney are concerned with two basic rules in criminal procedure: 1) is the information provided by my client actually relevant, and 2) if it is, will it be helpful with negotiating a pretrial resolution or, if the case goes to trail, will it be admissible in court. This means, when a DUI client tells us that the car isn’t registered to her, that is not relevant. Vehicle registration is not an element of the crime of DUI. And, if you tell us that you can’t go to jail because you are a single parent, that is not relevant to the elements of your crime. We are listening for things such as, “I was drugged and therefore I was involuntarily intoxicated” because voluntary intoxication is relevant to the elements of the charge of DUI.

To understand why we get so focused on relevancy and admissibility, you need to understand how crimes are charged and how a prosecutor’s office works. When you are arrested for a crime, the officer has some discretion whether to arrest you and what he will write as the crime you committed. He just needs to believe there is probable cause (a fairly low standard as compared to beyond a reasonable doubt in a criminal trial) to believe you committed that crime. When the prosecutor receives the police report and reviews it for probable cause, she can 1) agree with the officer and charge you with the same crime as listed, 2) find there was no probable cause and release you, 3) find additional crimes were committed and add to your charges, or 4) find the facts warrant a higher level of charging such as a felony level crime rather than a misdemeanor. This means the criminal charge is never really “set” until a prosecutor sees the reports. This also means your defense attorney never really knows how good or bad your case is until the reports are provided.

Are There Bad Facts?

When discovery is provided to us, we also look for other “bad facts” that might hinder the strength of your case. These are not necessarily facts that relate to relevancy and admissibility but have more to do with how you interacted with law enforcement. Most prosecutors have drawn a much tougher line when it comes to misconduct or foul language with law enforcement. If you were calling the officer a “pig” or said “my attorney will get me out of this,” the prosecutor will be less likely to see you as a person who is genuinely remorseful. So, while the defendant before you with an identical DUI scenario received a Pretrial Diversion Agreement, you might not be offered the same deal if you called the officer names during your arrest. If drugs or alcohol was involved in your arrest, you might not remember doing something so out of character. Unfortunately, law enforcement never forgets to write these facts down and they are serious factors for us as we determine how to negotiate a case.

When you meet with your attorney, please realize that information is being “processed” as you’re talking. If the initial meeting seems a bit like an interrogation, that is usually because we’re trying to find relevant facts to know before heading into your first appearance or arraignment. No defense attorney wants to be blind-sided. We also need to know if you have criminal history. Nothing looks worse to a prosecutor than a defense attorney who claims the client has no criminal history but is then surprised by the secret out of state DUI or theft charge. The defense attorney instantly loses all credibility (and negotiation strength) if inaccurate or false statements are made. Your attorney should know the good facts but it is absolutely critical that he know the bad facts, too!

Have Patience

As the case progresses, the reality of how a prosecutor’s office runs becomes even more important to understand. It is NOTHING like you see on television. There are hundreds of cases assigned to a prosecutor and she is juggling far more than a private defense attorney. In most counties, prosecutors are on triage mode. This means, if she doesn’t have your case set for trial next week, it is not relevant to her work load this week. Negotiations happen at the leisure of the prosecutors and they have very little time to talk, email, or negotiate. There will be some discussion with the prosecutor in court but, typically, that will be under 5 minutes due to dozens of other cases set for the same time. Most negotiation happens via email. Your attorney begins “the attack” against the elements of the crime and whether the prosecutor can convict you of the crime charged. The prosecutor might respond quickly or, if in trial or busy, respond a week later. This stage is all about relevancy and admissibility. Unfortunately for clients, this stage takes time.

When this phase becomes drawn out, clients often get quite frustrated. It seems unthinkable that you would have court on Wednesday but the prosecutor won’t respond to your defense attorney’s emails until Tuesday (or the morning of court on Wednesday). This is just the reality of criminal defense. It is stressful and there is nothing we can do about it. Whether you need to arrange child care, take time off of work, or handle a family emergency are all irrelevant to the prosecutor. They don’t care if you’re in limbo. They don’t care if you will lose your job or business. They don’t care if you’re a single parent. The response is the same—don’t get into trouble if you have that much riding on you. In the criminal justice system, the only facts the prosecutor wants to hear are those that are relevant to the crime charged. It is a rough reality that we try to prepare our clients to understand.

Seek Wisdom Over Wives' Tales

For this reason, if you have trouble managing the uncertainty and the stress of being in limbo, it is important to find a counselor or friend who can help you manage that anxiety. We suggest you don’t include people who focus too much on “this is an outrage” or “my friend blew a .18 and he never went to jail.” The advice from this type of friend tends to be counterproductive for your case. Rarely, does the friend understand admissibility of evidence and how that played into the outcome of another person’s case (i.e. perhaps their other friend was pulled over on a pretextual stop and evidence was excluded as a result of the motion). If a great resolution is reached for your case, the “outraged” friend can keep you from making a good decision moving forward. Let your friends help with stress but let your experienced criminal defense attorney (who has prosecuted and defended a 1000+ criminal charges) give you legal advice.

We understand that it feels unfair to be just a case number. We try to soften that reality the best we can. Everyone in our office knows that clients are stressed and facing life-changing consequences as a result of a criminal charge. We definitely get it! However, it is our job to provide the best defense for you and negotiate the best outcome for your future—which may not include sharing your personal story. In fact, most of the time, we don’t want to get to the “share your hardship” phase. If you’re sharing your story, it is probably because you’re in court for sentencing, which means you were convicted at trial. That is not the outcome we want for you.

This long and overwhelming process is handled better with a support system. As a result, we strongly encourage proactive self-care and looking for ways to manage stress. We understand that you are scared and want the prosecutor to hear about everything you stand to lose. After all, that is typically all our clients can think about. We simply can’t do that and the prosecutor won’t have it. Please understand that it has nothing to do with a lack of compassion. In truth, we do care and our passion is finding fair resolutions. Caring for our clients means we will always stay focused on what will actually help you. We are in your corner and we will use everything that is relevant and helpful for your defense.

When you come to our office, we will provide you with an intake form that we will use for contact information and other relevant data regarding your case. The following checklist should provide some guidance regarding information and documents that you might need to complete the intake form.

 

¤   Any correspondence (letters, emails, phone calls) from insurance adjusters. This includes correspondence from your insurance and from the at-fault party. 

¤   Your insurance documents, including the “declaration page” of your policy. 

¤   If you have more than one policy, please bring documents regarding all of the policies.

¤   Police report and/or any documents given to you by first responders. If you do not have a police report, we can collect this at a later time (assuming a report was filed).

¤   A list of all passengers in the vehicle and include contact information.

¤   A list of witnesses to the accident. Again, please provide any contact information you have for these individuals.

¤   Pictures of the damage to your vehicle.

¤   Pictures of the accident scene.

¤   Pictures of your injuries.

¤   If you were injured in a bicycle or pedestrian accident, please bring damaged equipment (helmet, bike, etc.) and damaged clothing.

¤   Any video, audio, or newspaper articles regarding the accident.

¤   Documents regarding all medical policies.

¤   A list of any treatment providers you have seen since the date of the accident. Please provide location or contact information.

¤   If you are missing work, please indicate whether your doctor has provided time loss statements.

¤  If any medical bills have been sent to collections, please bring any correspondence regarding those bills.

More often than not, the first question asked by new personal injury clients is, “What is my case worth?” When the conversation turns to “I have a friend who was offered $100,000 for their whiplash case,” we know that it’s time to provide some education to our client. For many reasons, the vast majority of the public has no idea how personal injury cases are valued, negotiated and settled, which can be quite detrimental when a person is injured due to the negligence of another.

How Personal Injury Settlements Have Changed

 

Over the last two decades, the “game” has changed and the insurance companies are keeping record profits. They are using certain tools to increase the odds that the profits continue. It is important for an accident victim to understand how technology has changed the field in favor of the insurance companies.

What We Can Do About It

 

First, every injury matters. By that, we mean that a strain and a sprain are treated differently. A fracture versus a break are night and day. And, if you are in pain, but never do anything about it, you really don’t have a claim. As the saying goes, the devil is in the details.

Unfortunately, the details are literally wrapped up in computer claims processing software programs, which nearly 80% of insurance companies use to settle claims. While the majority use a program called Colossus, there are several other well known programs that are used to reduce “risk” by lowering payouts. The software programs value cases by looking at various rules or factors and assumes that the insurance adjuster is plugging in the proper diagnoses and factors properly. This is not always the case.

One of the biggest problems with the software valuation is that, for a fair offer, the doctor and lawyer must be aware of how the software works. For example, the ICD codes don’t translate directly to Colossus codes for the injury but they are relevant. If the physician or chiropractor leaves off an ICD code, it could make a significant difference in your offer. Additionally, when ICD-10 codes were adopted, suddenly there were many more codes to enter and, on occasion, a care provider will forget to include all relevant codes. Under ICD-9, one code might have been sufficient to indicate your neck injury, however, under ICD-10, there could be two or three codes that each need to be entered to indicate that there was strain and a sprain. Considering that all of the codes must be included to give a clear picture of the injury (your attorney cannot fill in the gaps), it is imperative that you are seeing a doctor or chiropractor who is fully documenting your injury.

Another big challenge for personal injury attorneys is that writing a demand occurs at the end of the case. Unfortunately, when a client has a physician who is less than enthusiastic about documenting car accident injuries, this will impact how thoroughly your lawyer can document your injuries in the Demand. For example, one of the biggest factors in valuing the case is the documentation of “duties under duress” by your physician and your lawyer. Duties under duress paint the picture for the insurance adjuster how your daily living or work duties were impacted as a result of the pain you experienced from the accident. The documentation or narrative by the doctor needs to include very detailed impact about the activity (work, household duties, domestic duties, etc), when the pain was experienced (lifting, bending, sitting, walking, etc), how much pain or anxiety was experienced, whether there was restricted movement, and that the patient was required to do this activity while in pain. When reviewing the valuation for pain and suffering, pain is not assumed, it is documented.

In addition to documenting “duties under duress,” the physician must be clear as to the duration of treatment, the type of treatment modalities that were used, any complications experienced, prognosis for each injury with great specificity, permanent impairment under the AMA guidelines, as well as any known loss of enjoyment of life that you have discussed (experiencing depression because you are isolated or in pain and cannot interact with family or friends). If a care provider fails to document with specificity, the most well written Demand won’t help you. However, it is also equally important that, where proper documentation has been provided by a doctor, the attorney must clearly include all of those details to increase the odds that the adjuster will input it into the software. Adjusters do have some discretion in how or whether they will input certain facts so it is important to make the injuries and resulting consequences very clear in the Demand to increase your odds of a fair valuation of your case.

Finally, the “weight” of the factors has a tremendous impact on how the software values your injuries. For example, “initial treatment” (ER visits) are weighted more heavily by most software programs than subsequent treatment. This means that, where an ER report is minimal or fails to provide a thorough diagnosis (all proper codes for a loss of consciousness, for example), that will hurt your case. Lately, we’ve noticed a significant difference in ER reports from Harrison Hospital as compared to the very detailed narrative and thorough diagnoses section from St. Anthony’s. If you feel your ER visit was rushed or less than thorough, follow up care is critical. Additionally, if the initial treatment provider suggested you follow up, seek subsequent treatment, or do some type of home care (bed rest or home exercises), make sure that is documented in your chart and that you follow that suggestion. Subsequent care is “weighted” by who suggested the care (primary care doctors are weighted differently than specialists) and whether the suggested care was warranted based on initial care treatment. While there are many other factors that are considered by the software, this is a nuts and bolts overview of the importance of seeking care, documenting care, and following up with necessary subsequent care.

Set Realistic Expectations

 

Remember that while your case might be worth $50,000, if the software says it’s worth $10,000, the adjuster will be quite inflexible during negotiation. It benefits everyone to start with negotiations in a realistic range of value. Often, the adjuster cannot move beyond certain limits once the software has indicated the “appropriate range” for your type of injury. Without other supporting factors to input, the case will not settle outside of the generated range. In some cases, it makes sense to file a lawsuit to move past the designated range but, for a poorly documented injury, this may not provide a better outcome. When doctors or experts are needed for trial, the costs are significant and those will come out of your award—assuming you prevail. Jurors are biased against soft-tissue victims and insurance companies know they have odds in their favor. Often, where the insurance company’s risk is low (not a high value case), the insurance company wants to take the case to trial. In some cases, a lower than fair value settlement offer for your accident is a safer bet than no award at all.

Get Educated

 

The best thing an accident victim can do is to be educated about the process and make sure their your treatment team understands their significance in making sure you are compensated adequately for your injuries. It really is a team effort and the best team makes the difference in a winning case

 

In the world of personal injury, soft tissue cases are among the most challenging for an attorney. The challenge comes in the form of managing client expectations with insurance realities.

 

Every human being feels pain differently and for different lengths of time. If you’re a competitive athlete and are rear-ended, it is unlikely you’ll treat for more than two months. If you have a desk job and haven’t been to the gym in 10 years, the car accident might impact your life for 12 months. Unfortunately, for the desk job person, the insurance companies don’t really think it should take you 12 months to get better.

 

A soft tissue injury case has a range and, if you aren’t in that range, you may end up treating too long and owing more money in medical bills than you are offered for a settlement. This is the worst outcome for any personal injury attorney. We can’t tell you to stop treating and yet your treatment is going to create a financial burden for you.

 

A similar detrimental situation can happen when a client believes that more treatment equals a higher settlement. This is an unfortunate myth. Legitimate testing, such as a CT scan or X-rays, are relevant in valuing a case. Additionally, if you’ve experienced a concussion, this can change the value of a case. However, just treating for months and months with chiropractic or massage has the tendency to make your case look less legitimate. The insurance companies know this and they also know how juries look at soft tissue cases. Unfortunately, most jurors see soft tissue victims as trying to get “free money” and not really as a victim. It’s a hurdle right out of the gate in trial—and insurance defense attorneys often exploit this bias. For this reason, experienced attorneys work very hard to negotiate a settlement to avoid trial.

 

In 2008, a well-regarded article in the Journal of Empirical Legal Studies reviewed 9000 settlements over 41 years and found that, 61% percent of the time, the plaintiffs who went to trial obtained an award that was the same or worse than the pretrial settlement. Considering the incredible expense of trial and experts, even those who obtained the same award as the earlier settlement offer, really ended up in a very bad position.

 

Sometimes, trial is unavoidable for resolution of a case. However, it’s very important that those plaintiffs who are suffering only soft tissue injuries realize that they are going to face an uphill battle when it comes to fighting insurance companies. Regardless of how your injuries impacted your life, generally speaking, your maximum settlement has already been set by the insurance companies. In very conservative areas, that might mean 1.5 times your medical bills. In more liberal areas, that might mean closer to 2.5 times your medical bills. Keep in mind, this is very general information and assuming your medical bills are necessary and reasonable. A $10,000 massage bill is probably not going to be considered reasonable.

 

Nothing in this article is intended to be legal advice. However, consider the above information as you prepare questions for your attorney. Are your expectations realistic for your injuries and your geographical location? Is there a point where you would prefer to stop treating and walk away with more money for your inconvenience rather than have more massage visits? It’s all a factor in making a client feel like they were represented according to their best interest. Not everyone’s interests are the same.

 

At Witt Law Group, we are available 24/7 to hear your particular interests. If you want to discuss your personal injury case, we are here for you.

The issue of bail is always challenging. First, it can be expensive. Second, if you want your loved one to “learn a lesson,” is it best to leave her in jail? Finally, will the Court consider the person less “upstanding” at the Arraignment if he or she was unable to bail out?

 

All of those considerations are relevant. However, for a defense attorney, the biggest consideration (often overlooked) is how remaining in custody will ultimately impact the final resolution of the case. When a defendant is held in custody, it often results in many unintended negative consequences. Here are some factors to consider if you’re struggling with the notion of posting bail:

1.  If Incustody, The State Has All The Power

When a person sits in-custody, the State Attorney has all the power. If a person was arrested on a Friday and sits in-custody all weekend, by Monday’s Arraignment, they have most likely served their sentence. The person is faced with the option to plead guilty and get out of jail or, continue the case, and potentially remain in custody. Basically, if a person is in custody but can be immediately set free by pleading to the charge, the State can leverage them into pleading guilty. While in jail, people think about their jobs, family, pets and shame. It often leads them to the conclusion that they should plead guilty at the earliest opportunity so that they can return to their responsibilities. Young people will often plead guilty to get out of jail quickly and hide the matter from their parents.

 2. If Incustody, Your Representation Is A Gamble 

An in-custody defendant does not get the attorney of their choice. If a person is in-custody, the Court automatically appoints them an attorney. They may get a terrific public defender or they may get a public defender who is too busy to be much help. Either way, the in-custody defendant does not get to choose who represents them at Arraignment.

 3. Deals / Plea Negotiations Do Not Flow As Easily To The Incustody Defendant

Deals that are often available to out-of-custody defendants are not typically presented to those who are in-custody. This is due, in part, to the fact that the prosecuting attorneys know they have leverage over the in-custody defendant. If the prosecutor plays it right, they can usually squeeze a guilty plea out of someone whose case, if out of custody, would be resolved in a more lenient way. Anyone who has worked in a prosecutor’s office knows that statistics are critical. The more guilty pleas, the better the statistics for the office. Clearly, it is easier to improve those stats by forcing pleas out of in-custody defendants.

Don't Be A Stastic!

Don’t let a friend or loved one be a statistic for the State. From our perspective, there is a big disadvantage to defense if a person is held in-custody. While it may not “teach him a lesson” to bail your loved one out right away, being out of jail will help immensely in the defense of the case. Criminal cases always carry some “lessons” and there is no need to add the punishment of remaining in-custody. If you help your friend or family member with bail, it allows us to get the client moving on “tasks” they can do ahead of court dates. We can present a better case to the Prosecutor and a better client to the Court by being proactive. Ultimately, the goal is to learn from being criminal charged but also to move forward in a positive way with life. Think long term and not on the short term lesson.

 

If you would like to ask an attorney further questions about how remaining in custody could impact your specific case, give our office a call.  Witt Law Group is a criminal defense / DUI Defense law firm with offices Gig Harbor and Bremerton Washington.