WA Legal Roundup - Div I: Commission Order Lessening Cops Punishment Not Supported By Substantial Evidence; Requests Under the PRA are NOT Continuing (duh); Oath-ify Your De Novo; UW Has Delegated Authority to Suspend Raises; But There's Not…err…typo…NOW Racism; Review Those Manslaughter Instructions; Can't Just Toss Out an Other-Person With ONLY Evidence That Another Said They Did It To Cops; Goodwill is an Asset
Holy &*(%!!!! Is Division I trying to kill yours truly? I need to get a hold of some truthers up in this biatch! Seriously! Eight opinions?! Ever heard of a little thing called staggering? Or scotch! Scotch would resolve this problem, I bet. If you're hungover, you won't pump out this much work in one day.
Its rare that you see something kicked back on lack of evidence grounds. Here, Werner (an officer with SPD) was disciplined for lying to investigators about striking a suspect. SPD, of course, wants its officers to be truthful. This is especially true given the recent string of incidents of officer violence.
Anyhow, Werner was being investigated for excessive force and denied striking a suspect. During the interview process for a job in Snohomish, he admitted to striking the suspect.
Gil 86'd the officer, but the commission reduced it to a 30-day suspension based on what it deemed uneven application of the discipline rules around truthfulness.
29. Even-Handedness of the Rule. The Commission majority is concerned about the even-handedness in which the Department is applying its rules. There is evidence that employees in past cases involving dishonesty either received no suspension of duties or only temporary suspension of duties. Examples of more lenient punishment include an officer who fired shots at a stolen car and then misrepresented the facts was not suspended for the incident; an officer who did not notify authorities of the discharge of his service weapon, and only reported the incident when he learned that local police were investigating was not suspended but instead received a disciplinary transfer with no loss of pay; an off-duty officer was involved in an encounter when her handgun was accidentally discharged, she initially denied it before reporting it to her chain of command and was given only 15 days suspension; and an officer, who denied using any force but was contradicted by three witnesses, received a one-day suspension for excessive force in a case where dishonesty was an issue. To date, no other employee has been terminated based on dishonesty. The Commission majority concludes the evidence does not support that the Department even-handedly applied its rules. The superior court reversed finding of fact 29 for lack of evidentiary support. The superior court ruled as follows: The Department correctly argues that the finding is not supported by substantial evidence. To the contrary, none of the cases cited by the Commission include a sustained finding of dishonesty (as opposed to other misconduct). Moreover, none of the cited cases involve a sustained finding of intentional dishonesty in an investigation regarding use of force. Nor did the Commission find that the misbehavior in the cited cases was either as serious as or more serious than Werner's dishonesty. In short, there is neither any evidence that other officers who either engaged in the same behavior or who were disciplined for dishonesty were treated 8 No. 65632-5-I/9 differently.
Yes, I'm going to be lazy and not format that. Its a pain in the butt and I have better things to do. Anyhow, the supremes went through the cases of "unevenhandedness" and found that they weren't comparable to Werner, noting that even Diaz had testified that not all discrepancies are acts of dishonesty (the law does allow for brain farts).
The superior court decision stands and the court refused to reinstate the commission ruling.
There is no standing request under the PRA. Once the disclosure is made, they don't have to keep looking through new documents. Can you imagine?!
A certificate of service filed with a request for trial de novo that is signed by a legal assistant, but is not made under oath or under penalty of perjury, is not "proof that a copy has been served" under Mandatory Arbitration Rule (MAR) 7.1(a). We affirm the trial court's decision to strike the request for trial de novo and the order denying reconsideration.
Peter Nye, representing a putative class of University of Washington faculty members, appeals a summary judgment order dismissing his breach of contract claim against the university. Nye contends the university breached its contractual obligation under the faculty salary policy to pay two percent merit raises to eligible faculty members during the 2009-2011 biennium. Because the university acted within its delegated authority in suspending the merit raises, we affirm.
Read argued that he didn't focus his racial epithets at one person as required by the law. The court begged to differ: "We hold that the virulent racial epithets Read used coupled with his aggressive and intimidating conduct establish beyond a reasonable doubt that Read intentionally and maliciously threatened the victim because of her race, color, ancestry, or national origin, and sufficient evidence supports the trial court's finding that Read made a true threat.
The jury found Peters not guilty of felony murder but guilty of manslaughter in the first degree. Contrary to State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005) and 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.03 (3d ed. 2008) (WPIC), the trial court erroneously instructed the jury that in order to convict Peters of manslaughter in the first degree, the State need only prove that he knew of and disregarded "a substantial risk that a wrongful act may occur," rather than "a substantial risk that death may occur." Because the erroneous jury instruction was not harmless No. 64568-4-I/2 beyond a reasonable doubt, we reverse and remand for a new trial.
This one is interesting. Strizheus pointed to his son, Vladimir. Because of what I'm about to type, I think I should refer to him as "Vlad the Stabby":
In his trial brief, Strizheus claimed Valentina blamed Strizheus for committing the crime because she was more afraid of Vladimir than she was of Strizheus. Strizheus asserted that Vladimir "is a suspect in this case" and there was evidence that established Vladimir committed the charged crime. Strizheus argued that the evidence of Vladimir's October 2007 statements to the police, the February 2007 malicious mischief conviction, the 2008 incident resulting in the assault charge, and evidence that police had been called to the residence on several occasions in the months before the stabbing, met the requirements to admit evidence that Vladimir committed the crime. The defense further sought to introduce evidence that Vladimir was angry at Strizheus because Strizheus allegedly had sex with Vladimir's girlfriend, and evidence that Valentina broke up a physical fight between Strizheus and Vladimir a couple of days before the stabbing. The trial court addressed the admissibility of the proffered other suspect 6 No. 64077-1-I/7 evidence several times during the trial. Most of the discussion focused on the admissibility of the statements Vladimir made in October 2007 as recounted in the police reports. The State and the defense disputed whether these statements amounted to a confession to the crime. Relying on the report of one officer, the defense argued that Vladimir said that he "'stabbed his mother and father.'" The State countered that the statements the defense relied on were not actually Vladimir's words but only the officer's interpretation of what Vladimir said to the other officer. According to the State, the police officer whose report Vladimir cited would testify that Vladimir's actual statements were "'[i]t's my fault, arrest me. I should be in jail.'"
Now, I don't know about you, but those statements seem pretty clear cut evidence of a different person committing the crime. I'm no Sherlock Holmes here, but a guy coming up to me and saying "I stabbed her" is pretty good evidence that its not anyone that didn't say that.
The court of appeals frames this, talking not about the other evidence, which Strizheus didn't talk about in the brief, but which he rested on just the statement:
But on appeal, Strizheus challenges only the trial court's exclusion of the statement Vladimir allegedly made to police in October 2007. Strizheus argues that the prior statement is direct evidence that Vladimir committed the crime. Strizheus claims a statement that Vladimir stabbed his mother and father, standing alone, satisfies the nexus required to admit evidence showing that Vladimir committed the crime.
I dunno, they say its not enough on its own. I don't agree with this. This is when we get down to technicalities instead of truth. Hopefully there's an appeal to the supreme court.
Goodwill is an asset for law firms.
In other news, have you checked out the new blog? The Nursing Home Neglect Report covers issues of elder abuse and neglect and elder care. You can find it at http://www.nursinghomeneglectreport.com.