“Implicit racial bias can occur even in people with a sincere belief in equality,” said Sylvia Terbeck, lead author of the study, which was published in the journal Psychopharmacology. “Given the key role that such implicit attitudes appear to play in discrimination against other ethnic groups, and the widespread use of Propranolol for medical purposes, our findings are also of considerable ethical interest.”

So what does this mean? Well it definitely adds some fodder to the nature versus nurture racial debate. Capillary defects in the brain? Can’t wait to see what kind of neurological and sociological studies this spawns. Given the Supreme Court’s take that if you don’t talk about racism, it doesn’t exist, I would love for this to develop further into an argument than can be used against the colorblind individualism model.

That’s when I came across a story that was a little disturbing. It starts out like most drunk driving stories, with a man almost putting himself in a ditch and generally driving like the opposite of Ms. Daisy. Soooo…replace Morgan Freeman with Charlie Sheen.

So he gets popped, blows double the limit, but there are inconsistencies in the blow. Best consistent reading is .13. The prosecutor sees the weakness, even though there’s three sets of FSTs, all very damning. So what does he do, gives a plea to Operating an Aircraft under the Influence. This doesn’t count as a driving offense, so none of the usual DUI penalties are put in place. The guy never even had a pilot’s license.

Friends on both sides of the v, I’d be happy to hear your take on it. What do you think of pleading down a DUI to a non-traffic offense?

One side note, the process in Wisconsin, where this went down, will still count the Flying while Intoxicated charge on his offender score.

The first case wasn’t all that surprising. The challenge to the dependency action was based on not providing services blah blah blah. The usual rigamarole in dependency actions. So naturally, in Dependency of M.S.R. the Court found no issue with the services (not always the case) and no issue with failure of providing counsel, since none was requested. Let’s just say its not a good idea to take off for work and leave your twin four year olds to their own devices. In this case, they ended up causing a fire.

Next case is a Blakely case. Every public defender should know this and the Recuenco series of decisions. Anyhow, the long and the short of it is Recuenco III isn’t retroactive and the Court may look at verdict forms to determine if the sentence is valid on its face. Can you imagine the train hurtling down the tracks if firearms enhancements from time immemorial were invalidated? Further, the court should be able to quickly look and see if the sentence is valid on its face, which would give it the ability to revise and clear the burden of the COA. The true gem of this opinion comes from Chambers’ clerk’s inserted footnote. Those who know Chambers’ clerks know from whence this note sprang:

On June 24, 2004, five black-clad figures seized control of the Criminal Justice Express, crashed through warning barriers, flattened the Washington State Sentencing Guidelines, opened the throttle, and sent the train hurtling from the main line down the old rail spur where the Federal Sentencing Guidelines and the sentencing systems of numerous states lay tied helplessly to the tracks. Whereupon, the 2003 Term of Court being concluded, the justices twirled their collective mustachios, sent their robes off to the cleaners, and went on vacation. Two months on, as this Essay goes to press, the rest of us stand staring slack-jawed, some delighted and some aghast, at the disarray and paralysis in the locomotive’s wake and the impending carnage at the end of the line.

I refer, of course, to Blakely v. Washington.

Now, to preserve the (semi) anonymity of the Clerks, I won’t give the name. But I will tell you that this quote originated in a law review article: Frank O. Bowman, III, Essay, Train Wreck  Or Can the Federal Sentencing System Be Saved  A Plea for Rapid Reversal of Blakely v. Washington, 41 Am. Crim. L. Rev. 217, 218 (2004). Oh yeah, the opinion is PRP of Scott.

Its important to note that, while there have been a LOT of post-Blakely cases. I don’t think the sky has fallen down. The courts seem to have dealt with it rather effectively. Probably a little less turmoil than the whole felon-murder thing and the seminal case I can’t remember right now.

Finally, you can’t really take a city’s alleyway. Its there for public use, so you’re not really adverse possessing until the state actually says that part of it isn’t yours. This only applies to statutory dedications as opposed to common law dedications, which CAN be adversely possessed (comes down to the difference between a grant of fee simple in a statutory dedication of land, and an easement in common law). Sadly, I do not have anything funny to say about an Alley. So instead, I’ll post something involving Kirstie Alley. Oh yeah, so you want to know the case on this one too? You needy bastards! Fine! Kiely v. Graves.

Well, a few years back, the Washington Supreme Court decided a very similar issue and held that the names of teachers with substantiated claims against them for inappropriate behavior was in fact a public record. I’ll quote some of the opinion by Justice Fairhurst (not that I had any hand in drafting this at all…but I totes did):

Sexual abuse of children by school teachers is a terrible atrocity. Allegations of such abuse should be thoroughly investigated by school districts and, if the allegations are substantiated, the media may request records containing the identity of the perpetrating teacher. However, when such allegations are determined to be unsubstantiated, the identity of the teacher is exempt from disclosure to a public records request because such disclosure would violate the teacher’s right to privacy. Thus, we hold the identities of public school teachers who are subjects of unsubstantiated[1] allegations of sexual misconduct are exempt from disclosure under Washington’s public disclosure act (PDA), former chapter 42.17 RCW, amended and recodified as chapter 42.56 RCW (LAWS OF 2005, ch. 274).

Now, lets substitute police for teacher and “sexual abuse of children” with “misconduct” and see if it largely makes sense:

Misconduct by police is a terrible atrocity. Allegations of such misconduct should be thoroughly investigated by police departments and, if the allegations are substantiated, the media may request records containing the identity of the perpetrating officer. However, when such allegations are determined to be unsubstantiated, the identity of the officer is exempt from disclosure to a public records request because such disclosure would violate the officer’s right to privacy. Thus, we hold the identities of police officers who are subjects of unsubstantiated allegations of misconduct are exempt from disclosure under Washington’s public disclosure act (PDA), former chapter 42.17 RCW, amended and recodified as chapter 42.56 RCW (LAWS OF 2005, ch. 274).

I wonder if the Guild will appeal, or if they’ll realize that given the Washington Supreme Court’s current makeup, this order will likely stand and they will have paid a lot of money to their attorneys, and to the other side, for this appeal?

Interestingly, there are a lot of comments that if citizen’s have nothing to hide, then they have nothing to fear from the police. Unfortunately, this is not true. The very heart of the problem is there are instances where people had nothing to hide, yet plenty to fear. I have many friends who are fine, upstanding examples of what law enforcement needs to be. Its the officers who don’t live up to that standard that need to be monitored by the populous. Under the law, if the allegation is not substantiated, their identifying information should not be disclosed.

http://www.youtube.com/watch?v=On4XMG0U3xk&feature=related

In other words, the Public Records Act allows the public access to track just this sort of thing, so that the public can remain vigilante over its government. Preventing tyranny and all that.

Around the watercoolers of bank lawyers’ offices, the scuttlebutt about RCW 64.34.364 had been that perhaps there is an ambiguity in the state.  Certainly, the legislature could not have intended substantial (hundreds of thousands of dollars) security interests in condos could simply be wiped out at judicial foreclosure by a junior lien arising out of unpaid condominium dues (couple of thousand dollars)!  Even if it did, certainly the senior lienholder that got jumped in priority would have the right to redeem, that is, to pay off the condo association after sale went through to protect its position, right?  Well, Division 1 has spoken, loudly, and sorry senior lienholders, you are up the proverbial creek if you fail to respond to the judicial foreclosure.  The court says that the phrase “subsequent in time” means just that.  Time doesn’t equal “right,” even if the structure of the statute is decidedly first in time, first in right.

Here’s how it works.  Bank A loans a large amount of cash to a borrower for the purpose of buying a condo.  Part of the deal with a condo is that the borrower/owner then pays dues to an association, and these dues go to maintenance of the common areas.  Well, the problem was that when borrowers/owners got into financial trouble, the first thing they stopped paying was these dues.  Sure, the association could lien their property, but so what?  The association is not going to take an owner into foreclosure when there is a giant lien ahead of it on the priority list.  The statute allows them to jump up in priority and to take the property to foreclosure.  The hope is that the senior lienholder would see the lawsuit and pay off the condo association to protect their interest.

And hey man, I get it.  Occupy the senior lienholders, those greedy banksters!  After all, if they were served with a lawsuit, and they sat on their rights, then screw ‘em.  Yeah man, screw ‘em.  Only, it’s not that simple.   The troublesome little detail is that the associations have this sneaky way of serving MERS if it was listed as the “beneficiary” on the senior deed of trust, knowing full well that MERS wouldn’t forward on the summons and complaint the the real party in interest.  So the senior is blissfully unaware, until the sheriff’s sale, when its large stake in the property vanishes!  The association just bought the property for pennies on the dollar!  Only you can’t buy it back because even though your rights were inferior to the association, you acquired them before the condo dues lien attached.  Yay, windfall!

Of course, this opinion isn’t really concerned with any of this.  The brick through the window is meant for the legislature, so that they will fix this obvious loophole in the statute.  Right now, a mortgage banker is choking down some heart pills and calling his lobbyist…

Ryan Carson is an associate at Robinson Tait, where he specializes in mortgage and homeowners issues. In law school, Ryan was active in environmental issues, was on the Law Review of Seattle University School of Law, and performed an externship for the Honorable Tom Chambers. After law school, he clerked for a year with the Honorable Susan Owens as well. This guy knows the Washington Supreme Court corridors well!

Outside of work, Ryan, like your esteemed professor, loves to ride bikes. He also enjoys spending time with his wife and daughter.

He also enjoys the types of opinions that make me cringe and is a nerd of the highest caliber [insert Austin Powers joke here].

Welcome back, Ryan! Its great to have more than one person here again.

We have State v. Johnson, which makes me chuckle because of the euphamism for male genitalia (my sense of humor never progressed much beyond a sixth grade level). Anyhow, that case simply stated the obvious. Chris Hansen can get people to pose as little girls, and when you try to have sex with them thinking they’re little girls, you can be found guilty of a crime. Substitute a police sergeant for Chris Hansen, and substitute undercover detectives for the actors on To Catch a Predator, and you see where this is going.

There were, however, two interesting cases, both criminal.

State v. Thompson involved post-conviction DNA testing. Under the standard, you really have to show that you stand a more probable than not chance of a different result. Here, the guy is alleged to have beat and raped a girl, and there is a statement that said he had consensual sex with her. So DNA wouldn’t make a difference, right? Well, unfortunately, the prosecutor let slide the statement under a stipulation saying it would only be used if he testified. Had there been a hearing on the admissibility of the statement, could have used it in analyzing the post-conviction DNA request. So he gets his test, but my guess here is that it probably won’t make a lick of difference.

In re: Personal Restraint of Carrier

This is an interesting analysis of post-conviction dismissal under the sentencing reform act. I won’t bore you with the details, but if you have a 3 strikes case with a post-conviction dismissal under the SRA, you should definitely get to know this case. Maybe take it out for dinner. A couple nice glasses of wine. Definitely be sure to call this case the next day, but don’t wait the full three days, you don’t want to look like you’re playing games.

That being said, a court clerk in London may have crossed that sensitivity threshold by trying to get his jollies to porn during a rape trial.

Soooooo many things wrong with that sentence.

Debasish Majumder, 54, pleaded guilty to a charge of misconduct in public office and five counts of possession of indecent images, the U.K. Daily Mail newspaper reported.

The prosecution alleged Majumder viewed about 30 images between Dec. 9 and 10 during a rape trial. The judge sitting behind him said he noticed the filthy photos as the victim in the case was testifying.

Seriously, he couldn’t have waited until an expert witness got up on the stand? Or even until the end of trial? I know internet service is expensive, but that’s what public libraries are for!

Link to the original article here. A HT to Fark.com for bringing this to my attention.

Really, that’s all that’s to it really. Comenout was operating a smoke shop on trust land outside the res. The cigs didn’t have tribal or state tax stamps. 37,000 cartons in the store. Under an agreement, smoke shops in Indian Country to be licensed by the tribe.

This case presents two primary issues. The first is: does the State of Washington have criminal jurisdiction over tribal members selling unstamped cigarettes from an unlicensed store located on trust allotment property lying outside the borders of an Indian reservation?

Now, I’m calling out the clerk here. Never present a roadmap to your decision without providing all parts of the roadmap. A better read would be as follows:

This case presents two primary issues. First, does the State of Washington have criminal jurisdiction over tribal members selling unstamped cigarettes from an unlicensed store located on trust allotment properly lying outside the borders of an Indian Reservation? Second, are the Comenouts whether the Comenouts are exempt from the state cigarette tax as “Indian retailers”? We answer the first in the affirmative, and the second in the negative.

Then move on to your breakdown of each. My legal writing nerdacity is really showing here. I wrote this without checking who wrote the majority. Justice Alexander. Don’t know his clerks, and I apologize if this offends you. You can ask Laura, I’m actually a really nice guy. But she will verify, ima nerd.

Moving on to the opinion, Washington State established criminal jurisdiction of Indian Country outside of reservations. State v. Cooper, 130 Wn.2d 770, 928 P.2d 406 (1996), controls, and the facts are pretty similar. So yes, the State does have jurisdiction here.

As to the tax, the contract with their tribe supersedes the general provisions of the statute (as per another statute saying so). RCW 82.24.020(5), if you care to look. Their contract says an Indian Retailer has to be licensed by the tribe, which this one was not. Thus, you’re not an Indian Retailer. 9-0, with Judge Cox sitting in Pro Tem for J. Johnson.

http://pub.bna.com/lw/111665.pdf

Seriously, click the link, read the opinion, and you will LOVE the end.