Archive for the ‘Judge J. Robert Leach – Concur in Majority’ Category

Washington Legal Roundup – Division I

September 11, 2009

State v. White

Jarray White was convicted of assault and a felonious violation of a no contact order when he punched his ex girlfriend in the face.  At trial, the ex girlfriend was the only eyewitness to the alleged crimes. 

When called to testify, she indicated that she would not do so because doing so may have required her to waive her Fifth Amendment privilege against self-incrimination.  The trial court immediately closed the courtroom to conduct an in camera proceeding to determine the basis of the Fifth Amendment claim.

After conferring with counsel, the ex girlfriend decided to testify and the court was immediately reopened.

On appeal, Mr. White claimed that closure of the courtroom was unconstitutional without findings on the record that there was a compelling need to do so and no better alternative.  The Court of Appeals confirmed that closure of the courtroom is generally impermissible, but that because no proceedings had taken place while the courtroom was closed, there was no constitutional violation under State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

Washington Legal Roundup – Division I

September 3, 2009

Optimer International, Inc. v. Rp Bellevue

The parties in this case had a contractual dispute.  Their contract said that any disputes would be resolved by binding arbitration, meaning no judicial review.  The arbitrator screwed up and/or exceeded his authority under the rules laid out in the contract.

One party asked the court to review what the arbitrator did.  The other party said, “You can’t do that.”  The trial court agreed and said “You can’t do that.”

The Court of Appeals said, “Well, actually their is a new arbitration law that says we can and it applies retroactively to arbitration provisions that were in existence before the new act became law.”  The appellate court also said that even thought that particular issue wasn’t raised at the trial court, the trial court should have followed the law and the appellate court should make sure that trial court does.

Finally, the Court of Appeals said that the new act did not unconstitutionally and significantly impair the parties right to contract.

Washington Legal Roundup – Division I

August 25, 2009

State v. Garbaccio

Christopher Garbaccio was convicted of possessing child pornography.  On appeal, he argued that the search warrant allowing law enforcement to search his computer was invalid because it had been 5 months since the investigating detective had first identified Mr. Garbaccio’s IP address as being one associated with computer files containing child pornography.  The Court of Appeals held that unlike drugs, which are usually consumed or sold relatively quickly, computer files remain on a computer for long periods of time and even if deleted, metadata that the file existed on the computer can remain indefinitely.

Mr. Garbaccio also claimed on appeal that the search warrant was invalid because it stated that Mr. Garbaccio was intentionally sharing files on the Gnutella network.  Mr. Garbaccio claimed that sharing was the default setting on his peer to peer sharing software and that the statement in the affidavit of probable cause was, therefore, false.  The Court of Appeals held that it would not consider this issue because it had been raised for the first time on appeal.

Mr. Garbaccio also claimed on appeal that the trial court erred by refusing to give his proposed jury instructions.  The Court of Appeals disagreed, holding that the State need only have proved that Mr. Garbaccio knowingly possessed child pornography.  The length of time during which he did so, the Court reasoned, was unimportant.  The Court of Appeals further held that the jury was properly instructed on the law.

Note to criminal lawyers and the public: Crimes involving use of computers and the Internet continue and will continue to be hard to put in the same box as other criminal offenses.

Washington Legal Roundup – Division I

August 18, 2009

State v. Coleman

Travis Coleman was charged with molesting his 9 year old nephew.  During jury selection, the jurors were given questionnaires to fill out about sexual history.  The court sealed these questionnaires to protect juror privacy.

Mr. Coleman argued on appeal that he was denied his constitutional right to a public trial because of the sealing of the juror questionnaires.  The Court of Appeals agreed that the court did not properly conduct an analysis about the propriety of sealing the records under State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

The court determined, however, that the error was not structural and did not warrant a new trial, only a revisiting of the propriety of the order sealing the jury questionnaires.

Washington Legal Roundup – Division I

August 17, 2009

City of Seattle v. Wilson

The City of Seattle charged Clinton Wilson with misdemeanor assault under  city ordinance after he was cited for failing to yield the right of way to a bicyclist.  Mr. Wilson ended up colliding with and killing the bicyclist.

The Court of Appeals held that because the City did not need to prove that Mr. Clinton had the intent to commit the infraction (i.e., did not need to establish Mr. Clinton’s mens rea) and because the state legislature decriminalized most traffic offenses in 1978, the city ordinance violated state law.

Washington Legal Roundup – Division I

August 4, 2009

Elliot v. Dept. of Labor & Indus.

James Elliot was a construction worker.  One day, a fellow worker fell through a hole in a ceiling directly above him.  The fellow worker landed on his head on concrete about ten feet from Mr. Elliot and died. 

Mr. Elliot initially thought he was OK, but then started feeling guilty for having not complained about safety violations on the construction site.  He was also unwilling/unable to work at heights.  He was fired, became depressed, started drinking and using drugs.  He then went through rehab and was diagnosed with PTSD.

14 months after the death, he filed a claim for worker’s compensation benefits.  The Department denied the claim because there is a one year statute of limitations for filing claims for injuries.  The Board affirmed as did the Superior Court.  So did the Court of Appeals.  Harsh. 

The legal issue was weather a “discovery rule” applied in the context of worker’s comp claims.  Mr. Elliot was not aware that he was “injured” until well after he witnessed a co-worker fall on his head next to him.  His life spiraled out of control after he was fired.

The Court of Appeals simply said that under the worker’s comp statute, the triggering event is the incident giving rise to the injury, not the discovery of the injury itself.  The Court also said that that Mr. Elliot’s claim did not arise out of an “occupational disease” to which a longer statute of limitations arose.  Harsh.

Note to Legislature:  Fix this statute.  The worker’s comp statute was designed to be a safety net for workers who are injured on the job without regard to fault.  There was no safety net for Mr. Elliot

Washington Legal Roundup – Division I

July 28, 2009

Bushong v. Wisbach

Edmund Wilsbach and Vicky Bushong divorced in Connecticut in 1984.  The divorce decree required Edmund to maintain an insurance policy naming Bushong as the beneficiary.

Mr. Wilsbach let the policy lapse, got remarried and named his new wife as the beneficiary.  Mr. Wilsbach died.  Ms. Bushong tried to sue the estate for the money she believed she was owed under the 1984 decree.  Her case was dismissed and attorney fees were awarded against her.

Ms. Bushong did not appeal the dismissal within 30 days, but did appeal the award of attorney fees.  Because the underlying basis for the award of attorney fees was not timely appealed, the Court of Appeals found the appeal untimely, dismissed the action and awarded attorney fees on appeal.


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