WA Legal Roundup
Sometimes the cases must wait for the sheer fun of it. The Prof had the pleasure of spending the afternoon in King County Superior Court in Kent watching the illustrious Karen Koehler do her thing at closing. For those in the plaintiffs game, an email is floating around recapping it.
Two new opinions out of the Washington Supreme Court yesterday.
This is one for the divorce attorneys. Tom and Gloria started dating. Tom was wealthy; Gloria was not. Tom told Gloria he wanted a prenup when he asked her to marry him. Tom told her to obtain counsel, giving her the names of three attorneys. But he never gave her a draft. Gloria got a draft eighteen days before the wedding. She obtained a lawyer who received a new draft three days before the wedding, which was substantially different from the draft Gloria had received. The lawyer didn't have time to conduct a full review and draft a counteragreement and was only able to lay out areas of concern the day before the wedding. She signed the prenup the day before the wedding and a letter was signed the day of agreeing to renegotiate the five areas noted. The amendments were negotiated, with Gloria and her lawyer of the impression that they were limited to the five areas outlined.
The majority found the unconscionability necessary to not enforce the prenup:
Here, the community property consisted of half of Gloria's salary, which was controlled by Thomas, and in effect $100,000 of Thomas's earnings per year. In addition, the prenuptial agreement limited Gloria's inheritance rights, prevented Gloria from seeking spousal maintenance, prevented Gloria from using community property to assist her children, and sheltered Thomas from liability for any debts incurred by Gloria. The prenuptial agreement as amended remedied some of these problems, but overall made provisions for Gloria disproportionate to the means of Thomas, and limited Gloria's ability to accumulate her separate property while precluding her common law or statutory claims on Thomas's property. The agreement as amended is substantively unfair. It can be enforced only if it was executed fairly, the second prong of our analysis.
The majority then upheld the findings of fact as to the procedural unconscionability involved. Thus, the two prong test requiring both substantive and procedural unconscionability was satisfied. The dissent agreed to the substantive, but not to the unconscionable prong.
By no stretch of the imagination is Sutherby a fine upstanding citizen. He raped his five year old niece and had loads of child porn on his computer. The trial court sentenced by consolidating the child porn charges into two, as there were two minors depicted. Sutherby argued ineffective assistance because his attorney did not argue for severance of the child porn and child rape charged. He also argued that he should have been sentenced on one consolidated count of child porn instead of two.
The majority (and the larger of the dissents) held that one count was appropriate. It noted that the crime of transporting a woman or girl for prostitution had to be charged as one count under the Fifth Amendment to the United States Constitution regardless of the number of women transported. This is because the statute did not state what the unit of prosecution was. You can bet your bottom dollar that their will soon be an amendment to the child porn statute.
As to the ineffective assistance, it is clear that any defense attorney in his right mind would have asked for severance. The more difficult issue is whether Sutherby was prejudiced by this. Essentially, the prejudice went towards evidence of the child porn possession likely not being admissible in a trial for the molestation as 404(b) propensity evidence, which is exactly how the state argued the child pornography when discussing motive.
Justice Fairhurst's dissent in part, joined by Justice Madsen, simply stated that she disagreed with the severance issue, but did not declare what basis. Justice Johnson issued a dissent based largely on emotion, but noting that a failure to severance saved Sutherby money, which is a strategic choice in litigation.