In re Personal Restraint of Jerry D. Wiatt Jr.
Wiatt, in his personal tribute to the late Michael Jackson, timely petitioned the Court for relief of restraint after being convicted of 10 counts of various crimes ranging from furnishing liquor to a minor to rape and sexual exploitation. Additionally, he pleaded guilty to voyeurism and communicating with a minor for immoral purposes. There were at least 5 other charges that were remanded and are not considered in this petition. This is the text book definition of ‘throwing the book at him.’ He argues for relief because, 1) there was insufficient evidence to support one of his second degree rape convictions, 2) violations of public trial, 3) violations of his right to be present during critical stages, 4) improper exclusion of evidence, 5) juror misconduct, 6) outrageous government conduct, 7) the judge was biased, 8) ineffective assistance of counsel, and 9) newly discovered evidence. In a side note Petitioner also claimed that the tooth fairy robbed his right to have extractions. (Blame Professor Justin for that one… J).
In addition to the petition, which included the arguments above, Wiatt submitted a supplemental brief that raised additional issues. The Court of Appeals held that his supplemental brief was time barred per In re Personal Restraint of Bonds, 165 Wn.2d 135, 196 P.3d 62 (2008), which held that supplemental briefing, even if requested or authorized by The Court, must be filed according to the time restraints in RCW 10.73.090(1). The Court held that Wiatt failed to argue that the brief was not time barred by showing that the bar does not apply due to the judgment being invalid or for any of the exceptions in RCW 10.73.100. The court also rules that the time bar should not be equitably tolled even when a transcriptionist mistakenly failed to turn over the transcription as this was only a mistake and not a “malfeasance.”
The Court denied the petition and rejected all 9 of Wiatt’s arguments arguing that he had already brought his first argument, insufficient evidence, which was already properly reviewed and rejected and he is not able to renew issues previously ruled upon. The Court reviewed the issue of violation of public trial de novo but held that Wiatt failed to prove actual prejudice. The Court held that in regards to Wiatt’s jury misconduct argument, he failed to prove that the jury actually considered extrinsic evidence even when his declaration alleges overhearing a victim’s mother state she was going to provide jurors with information on date rape drugs. The Court held that the prosecutor did not commit misconduct when it mislead the defense about its case theory at trial and that Wiatt could not prove actual prejudice. The Government did not partake in outrageous conduct while conducting its investigation even when the offices lied and made up stories about Wiatt being in the Chinese mafia (really that is the best the cop could come up with- if you are going to lie, why not tell a really good one?) because, as the Court states, “some deceitful police investigatory conduct as long as it stays within reasonable bounds” is ok (hence why the cop only made up lies about Wiatt being in the Chinese mafia and didn’t take it to the outrageous level).
The majority opinion and dissenting Justice failed to see eye to eye on the issues of effective assistance of counsel and the violation of public trial. The majority argued that Wiatt improperly brought the argument in a reply brief, which, procedurally he is prohibited from doing and that In re Bond clearly establishes that his reply brief, in which the argument is alleged is prohibited from being heard as it is time bared. The dissent disagrees, of course respectfully, and states it would grand Wiatt’s PRP, reverse his convictions, and remand for a new trial. The dissenting justice, Van Deren , C.J., argues that Wiatt sufficiently brings the issues before the court and finds that the facts are identical to In Re Pers. Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004), which held that the trial court’s failure to comply with the Bone-Club requirements violated Orange’s constitutional right to a public trial. The dissent emphasizes that there is not a dispute the trial court in Wiatt’s case disregarded the Bone-Club factors and therefore should be remanded. In regards to the ineffectiveness of counsel, the dissent argues that, contrary to the Majority, the issue was properly raised and the facts that Wiatt’s appellate counsel failed to bring the violation of public trial at issue was evidence of ineffectiveness of counsel because Wiatt was prejudiced when he was deprived of having the issue deemed per se prejudicial on direct appeal.
