Judge has pattern of violating rights, complaint alleges

This story was published October 17, 2005 in the Seattle Times. By Maureen O'Hagan - Seattle Times staff reporter.

She was young and scared and, admittedly, foolish. But to this day, Sara Totten can't understand why she was ordered to spend more than a year in jail when her only crime was being a minor in possession of alcohol.

The punishment was later deemed out of line by another judge, and Totten was freed early.

The root of the problem, that judge wrote, was District Court Judge Mary Ann Ottinger, who sent Totten to jail without telling her she had certain rights, including the most basic: the right to a free lawyer.

In fact, Ottinger, who has been a district-court judge in King County since 1992, routinely violated defendants' rights, according to two complaints investigated by the Commission on Judicial Conduct. The first, which focused mainly on Totten, was resolved in June 2004 when the judge admitted her errors, was censured and promised to change.

The commission now says that Ottinger continued to show a "pattern or practice of violating criminal defendants' fundamental and constitutionally protected due process rights."

A month after disciplining Ottinger the first time, it began investigating new complaints that were strikingly similar to Totten's. That resulted in charges filed by the commission in June.

Ottinger, 56, declined to comment except through her lawyer, David Allen, who said the judge may have made occasional technical slip-ups, but she follows the Code of Judicial Conduct, which lays out ethical standards for judges. The real problem, he argues, is that some local governments aren't providing lawyers immediately to defendants in district and municipal court, and judges like Ottinger are unfairly being held responsible.

Jailed for an MIP

By the time Totten and Ottinger crossed paths, Ottinger had become a fixture in the Issaquah courthouse.

Ottinger presided over cases out of Issaquah, Sammamish, Snoqualmie and North Bend, among other cities. Government officials there were quite attached to her. In fact, when Ottinger was transferred to Redmond in 2003 in a reorganization of King County's district courts, those city governments fought vigorously to get her back.

Even before this, however, the Commission on Judicial Conduct was looking at Ottinger. In 2002, she was told of concerns about how she advised defendants of their rights. Ottinger said she would change her procedures, but the commission soon heard that she hadn't. The commission opened an investigation, and Totten's case became the centerpiece.

Totten's legal problems began in June 1999, when, at 17, she was caught drinking and registered a blood-alcohol level of 0.071 — lower than the legal limit for an adult but a crime for someone under 21.

By her first court hearing, in January 2000, she had turned 18. There was neither defense lawyer nor prosecutor there.

The hearing was over in minutes. Totten pleaded guilty. And Ottinger accepted the plea, even though defense lawyers say many judges won't let defendants plead guilty at their first court appearance without a lawyer. If they do, however, they're required to make sure the defendants know exactly what they're getting into.

Transcripts show Ottinger didn't tell Totten the rights she would be giving up if she pleaded guilty, nor the maximum sentence she could face.

She was sentenced to probation and ordered to enroll in treatment, attend Alcoholics Anonymous and get her General Educational Development (GED) diploma.

But at subsequent court hearings, the judge determined that Totten wasn't following the rules.

First, Ottinger sent Totten to jail for five days. Over several more hearings, she imposed an additional 20 days. At each of these hearings, Totten could have had a lawyer, but Ottinger never said that.

Finally in September 2001, Ottinger sent Totten to jail for nearly a year — making her total sentence 375 days, above the legal maximum for the crime, which is a year. Several defense lawyers said such a long term is highly unusual for a first offense.

Fellow inmates told Totten she had a right to a lawyer and helped her contact a public defender who not only got Totten out of jail about two months into her sentence but got her case dismissed as well.

The judge who released Totten called the violations of her rights "egregious."

In June 2004, the Commission on Judicial Conduct released the results of its investigation into the Totten case. As part of a settlement agreement, Ottinger admitted that she failed to protect Totten's rights, as well as the rights of numerous other defendants. "The nature of the violations cannot be overstated," the commission wrote in the agreement.

In addition, the commission found that she had provided behind-the-scenes legal help to cities in the dispute over her transfer, which she was prohibited from doing as a judge. The commission also said she treated her court staff poorly, an allegation Ottinger denied. The commission required that she attend judicial training and counseling to address her management practices.

Since 1982, an average of five judges have been disciplined each year; a handful of them were for violations similar to Ottinger's, according to commission records.

The right to a lawyer

While Totten still is angry, she concedes that she brought some of this on herself. Defense lawyers say that's what often happens when defendants go to court without a lawyer. Some defense attorneys see their job as part counselor; in Totten's case, that would have meant things like getting her into treatment and warning her what would happen if she failed.

Yet, according to Bob Boruchowitz, director of The Defender Association, a King County public-defense agency, defendants routinely don't get lawyers from the start.

"Every day in Washington courts, hundreds of people face criminal charges without lawyers and many of them plead guilty and go to jail, sometimes unaware they have a right to a lawyer," he wrote last year in Washington State Bar Association magazine.

To anyone who has heard the ubiquitous "right to a lawyer" speech on television cop shows, this might seem hard to believe.

Nonetheless, for years, many local governments across the state have not provided lawyers to poor defendants at their first court appearance in misdemeanor cases, which are under the purview of district and municipal courts.

(It's standard to get a lawyer at first appearance in Superior Court, which handles felonies. Misdemeanor defendants who qualify for public defenders get them at later hearings. In some jurisdictions, like King County, public defenders have long been provided from the start for in-custody defendants but not to those out of custody.)

Boruchowitz, who has studied the issue in depth, said many jurisdictions opt against footing the bill for lawyers at defendants' first appearance in district or municipal court. And few defendants can afford to come to court with their own attorney.

Arguably, the lack of lawyers wasn't causing serious harm in most cases because most defendants plead "not guilty" at their first appearance anyway, and are assigned lawyers later.

Nonetheless, the lack of lawyers is compounded by the fact that district and municipal courts are typically busy, making some judges feel rushed.

Ottinger cites this issue in her defense. She was put in the difficult position of handling a busy calendar, while protecting the rights of both defendants and victims, all without the assistance of a defense lawyer, said Allen.

"There's a tremendous crush of people in there," attorney Allen said. "She feels it's unfair if she only gets through half the calendar ... . She didn't do this from spite or nastiness."

The commission disagrees, saying her practices were "stand-alone unique and defective," a commission lawyer said during a deposition in the recent case.

Concerns about lawyerless defendants have recently come to a head. Part of the impetus was Boruchowitz, who highlighted the problem and prodded officials. But another factor was cases against Ottinger and two municipal-court judges who were recently disciplined for similar problems.

King County agreed earlier this year to provide defense lawyers for all defendants making their first appearance in district court. And since the new charges were filed, Ottinger has refused to hear cases for jurisdictions that do not provide defense lawyers immediately, Allen said.

Still, numerous jurisdictions, including Bellevue, Burien and Kenmore, don't provide counsel at misdemeanor arraignments, according to information provided by King County District Court Presiding Judge Corinna Harn.

New complaints

Now the commission alleges that Ottinger didn't adequately change her ways and continued to violate defendants' fundamental rights. The new complaint lists 12 examples of defendants who were allegedly denied their rights during the summer of 2004.

There is Ryan D. Carter, who pleaded guilty to driving while intoxicated with a blood-alcohol level of 0.337 and appeared before Ottinger for a probation violation. According to the complaint, she didn't tell him he had a right to a lawyer, nor that he had a right to contest the allegations.

There is Jorge Vasquez-Ortiz, who was accused of domestic violence and was provided a Spanish interpreter in court. The transcript shows the judge told him some, but not all, of his rights, but it appears he didn't understand everything.

Vasquez-Ortiz said he wanted to plead guilty. When the judge asked whether he wanted to proceed without a lawyer, he asked, "Are they going to have an attorney here for me?"

Yes, but "not today," she said.

She didn't tell him the consequences of his plea, including the possible sentence, or concerns like possible deportation. This violated his constitutional rights, the complaint said.

Allen countered that there are other factors that should be taken into account. In the case of Vasquez-Ortiz, for example, the interpreter certified that the defendant understood what was going on, only later filing a declaration stating that Vasquez-Ortiz had been confused.

Barrie Althoff, who was executive director of the Commission on Judicial Conduct when the recent complaint was filed, explained it this way.

"It's the judge's obligation to make sure the person gets a fair hearing. If there's some doubt, the judge has a remedy to that."

The commission has scheduled a December hearing on the complaint. If Ottinger is found to have committed the violations, she could face discipline ranging from admonishment, which is a written caution to the judge, to removal.

High Court Eases 'Knock and Announce' Rule for Police

This story was published June 16th, 2006 at Yahoo Finance. Tony Mauro, Legal Times.

The Supreme Court on Thursday weakened the longstanding "knock and announce" rule under which police must in most circumstances knock on the door, announce their presence, and wait briefly before forcibly entering a house with a search warrant.

Although not repealing the rule itself, Justice Antonin Scalia's 5-4 majority opinion said the traditional remedy for police violation of the rule -- namely, barring the use at trial of the evidence found -- is no longer required.

Citing the increasing professionalism of today's police and the availability of other remedies, such as civil rights suits under §1983 of Title 42 of the U.S. Code, Scalia said the "massive remedy" of exclusion of evidence was unwarranted and would invite a flood of allegations of police violation of the rule.

"The cost of entering this lottery," Scalia wrote, "would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card."

Scalia's ruling was confined to the context of the knock-and-announce rule, but some elements of it could apply more broadly, possibly setting the stage for a future attack on the exclusionary rule, which excludes from use at trial any evidence that is illegally obtained by police. That rule, first established by the Supreme Court for federal courts in 1914 and applied to states in 1961, has been a hardy but controversial tool for discouraging police misconduct.

Law enforcement advocates applauded the ruling. "Today's decision not to expand the exclusionary rule is very important to law enforcement," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. "Justice is best served when juries are allowed to consider all relevant evidence."

The ruling in Hudson v. Michigan, one of four handed down Thursday, was one sign that the much-heralded era of unanimity under new Chief Justice John Roberts Jr. may have been short-lived. And it also highlighted the impact of the Court's new lineup. When the Court first heard arguments in the Hudson case in January, Justice Sandra Day O'Connor was still on the Court and appeared sympathetic to defendant Booker Hudson Jr. The case was reheard in May after Justice Samuel Alito Jr. replaced O'Connor, and on Thursday he joined the Scalia majority against Hudson. Also in the majority were Roberts and Justices Anthony Kennedy and Clarence Thomas.

In dissent, Justice Stephen Breyer said the ruling "weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection." Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg joined the dissent.

The decision also drew criticism from groups that have pointed to a sharp increase in recent years in no-knock, SWAT-type police raids on private homes, usually in pursuit of drugs. "Because of today's decision, we can expect to see an even more pronounced increase in the use of illegal, military-style no-knock raids," said Radley Balko of the Cato Institute, which filed a brief in the Hudson case. "We can expect to see more innocent civilians wrongly targeted."

Balko also discounted Scalia's reference to the alternative remedy of suing police officers under §1983, asserting that the courts had already "set the bar extremely high" against such suits.

In the case before the Court, lawyers for Detroit police acknowledged that they violated the traditional knock-and-announce rule when they entered Hudson's home in a drug bust. They shouted "Police, search warrant," but did not knock and waited less than five seconds before opening the unlocked door.

A state court judge suppressed the cocaine evidence that was obtained in the raid, but the Michigan Court of Appeals said the evidence should have been allowed because it would have been discovered even if the police had obeyed the rule.

Scalia said the "ancient" knock-and-announce rule protected valid interests that benefit police and homeowners. Police benefit because if they force their way into homes without announcement, those inside might shoot them as intruders. It also "protects those elements of privacy and dignity that can be destroyed by a sudden entrance," Scalia said, by allowing inhabitants to pull on clothes or get out of bed.

But the Court has already allowed police to ignore the rule if the circumstances "present a threat of physical violence" or if there is reason to believe that waiting would lead to the destruction of evidence inside.

The Court also ruled Thursday in Howard Delivery Service v. Zurich American Insurance Co. that insurance company claims for unpaid workers' compensation premiums are not entitled to priority in bankruptcy proceedings. And in Kircher v. Putnam Funds Trust, the Court ruled that federal appeals courts have no jurisdiction to second-guess lower court decisions to remand to state court lawsuits filed under the Securities Litigation Uniform Standards Act of 1998. The ruling is a defeat for investment companies that seek to keep investor class actions out of state courts.

Guilty Again

This story was published August 27th, 2005 in the Whidbey News Times. By Jessie Stensland.

A jury took about three hours to find former Oak Harbor resident James Alexander guilty of assaulting and torturing his 21-month old son to death in 1991.

The 12 jurors in Island County Superior Court returned a verdict of guilty of homicide by abuse and first-degree assault Wednesday. Moreover, they found there were "aggravating factors" that allow a judge to impose an exceptionally long sentence.

Under the standard sentencing range, the 46-year-old former Navy man faces from 20 years and 10 months to 27 years and nine months. But, with the aggravating factors, the judge could hand him an exceptional sentence of up to life in prison. A sentencing hearing will be held later this year.

Prosecutors are extremely pleased with the verdict. The case has statewide ramifications since it involved several complex legal issues, most notably the state Supreme Court's controversial Andress decision.

"This is really cutting edge law for this little place," said Chief Criminal Prosecutor Steve Selby, who tried the case with Deputy Prosecutor Arlene Anderson. "This is really big."

In fact, Alexander may be the first case reversed on Andress in which the defendant was re-tried and found guilty of an even more serious crime.

In 2002, the justices ruled in the Andress case, throwing out the part of the felony murder statue that allowed prosecutors to charge someone with murder for causing an unintentional death during an assault. As a result, Alexander ended up back in Island County court.

In other counties, the Andress decision has set convicted murderers free.

Instead of re-trying the defendants, prosecutors allowed defendants to plead guilty to the lesser charge of manslaughter, which used to hold a maximum sentence of 10 years in prison.

Several of the cases have been remarkably similar to the Alexander homicide. Wednesday, convicted baby-killer Adam Bartlett walked out of King County Superior Court a free man, having only served half of his sentence. His murder conviction was vacated under Andress, so prosecutors charged him with manslaughter.

Like Alexander, Bartlett was convicted of beating two different children; one ended up dead.

Early this year, 44-year-old David Crane walked out of a Snohomish County courtroom after serving only 18 years of a 60-year sentence for the beating death of a 3-year-old boy. He also pleaded guilty to manslaughter.

Noreen Erlandson, a Bothell nurse, only served 12 years of a 40-year sentence for beating her 2-year-old daughter to death.

Craig Platt, Alexander's defense attorney, tried to get his client convicted of manslaughter. Since Alexander has already served 14 years of his 25-year sentence, a manslaughter conviction would free him.

At one point, Alexander nearly walked out the courtroom doors a free man. Platt asked Superior Court Judge Vickie Churchill to hand Alexander a directed verdict of manslaughter.

She agreed, but then in an unusual decision, reversed herself.

During the trial, Platt urged the jury to convict Alexander of the lesser-included charge of manslaughter. He argued that his client's crimes did not fit the definition of homicide by abuse.

Under the law, "a person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifference to human life, the person causes the death of a child ... and the person has previously engaged in a pattern or practice of assault or torture of said child."

The trial cost the county just over $4,000 for things like travel costs and lodging. Witnesses had to be flown in from all over the nation.

Prosecutor Greg Banks said the costs would have been much higher, but three medical experts decided not to bill the county for their time.

"It is a testament to their commitment to the safety of children that they would forego substantial expert fees for which they were entitled," he said. "I am grateful for their expertise and generosity."

Selby said prosecutors haven't decided how much time they will ask the judge to impose on Alexander at the sentencing hearing. He said he's in the process of researching sentences given out in similar cases.

But even after the sentencing hearing, prosecutors predict that the Alexander case will be with them for many years to come. Selby has already argued the case before the Appeals Court twice and he expects to do it again.

"We have broken new ground on many legal issues, and I expect the appeals to go on for some time..." Banks said in a press release. "I am confident that, with (Judge Churchill) on the bench, Mr. Alexander received a fair trial. I believe that, at the end of the appeals that are sure to follow, Mr. Alexander will still be in prison where he belongs."

In the meantime, Selby said he is getting ready to re-try Jerry Lee Farrow, a Michigan man who shot and killed a Navy woman, Faith Ellison, in 2001. His second-degree murder conviction was also vacated because of the Andress decision.

KPD files charges against attorney

This story was published Tuesday, August 23rd, 2005 in the Tri-City Herald. By Nathan Isaacs, Herald staff writer.

Kennewick has filed charges against defense attorney Jim Egan for his attempts to contact a would-be client during a double homicide investigation.

However, Egan and Kennewick City Attorney John Ziobro are optimistic a resolution can be reached before the issue reaches trial.

Egan, a longtime Tri-Cities attorney, is charged with obstructing a police officer. He filed a letter with the Benton County District Court on Friday pleading innocent to the charge.

"I don't think I'm guilty of anything," Egan said Monday. However, he declined to discuss the case further.

Egan was arrested Aug. 4 after he tried to stop police from questioning Cameron Jones about the shooting deaths of Linda and Danielle Moreno. James Moran, who shot and killed himself the same day as Egan's arrest, has since been identified as the prime suspect in the case, along with two others in custody.

Egan had been hired that day by Jones' father to represent Jones, who was in custody on charges unrelated to the Moreno shootings. Egan said he is representing Jones on allegations of criminal trespass and bail jumping. Jones also faces two counts of first-degree burglary.

Egan had tried to reach Jones in the Benton County jail, but was told he was in the custody of Kennewick police. Kennewick police, Egan said at the time, would not tell him Jones' location.

Egan then went to the police station, but was denied access to Jones by a detective and deputy prosecutor because Jones had not asked to speak to an attorney.

As a detective and deputy prosecutor were returning to a secure part of the station, Egan reportedly began yelling to Jones that his lawyer was there in the hopes Jones would hear him.

That's when Egan was arrested, taken to the Benton County jail where he was searched, fingerprinted and photographed before being released.

Egan later was able to talk with Jones. At the time, Egan said he planned to fight the obstruction charge.

Ziobro said the city has a strong case against Egan. However, the city doesn't want to start prosecuting local attorneys. "Ideally, there's a graceful way to do this short of a trial or criminal conviction," he said.

"We're at a stage where a realistic offer either way hasn't been made," Ziobro said.

Attorney Todd Harms is representing Egan. Another hearing is set for Aug. 31.