Federal Student Aid and Marijuana

In Washington, although marijuana is legal, it’s still a crime to possess over a certain amount. Possession of over 1 oz of leafy marijuana is a misdemeanor and possession over 40 grams (1.4 oz) is a felony.

20 U.S.C. sec. 1091(r), a federal law, specifies that students become ineligible if convicted of “any offense under any Federal or State law involving the possession or sale of a controlled substance for conduct that occurred during a period” in which the student was receiving federal aid.

Marijuana is still classified as a Schedule I controlled substance under federal law. Therefore, someone who is convicted under WA State law of misdemeanor possession of marijuana under 40 grams means that they would become ineligible to receive federal student loans. The first offense carries a 1 year ineligibility period, the second offense is 2 years, and the third is indefinite.

So it’s important to bear in mind that although no one is serving lengthy prison sentences for a minor marijuana charge these days, there’s still a law on the books that can carry a lifelong “sentence”, so to speak, by blocking access to higher education. The consequences are higher for those students who were born lower in the socioeconomic ladder, i.e., whose parents can’t help cover tuition.

Capacity Hearing Required for Juveniles Under 12

State v. A.X.K. No. 52357-4 (February 11, 2020), Washington Court of Appeals, Division Two.

Brief: Capacity is not an element of the crime of attempted first degree rape of a child under RCW 9A.28.020(1) and 9A.44.073(1). Remand was necessary because no capacity hearing was held and a presumption existed that the juvenile lacked capacity since he was under 12 when the alleged crime occurred. If the juvenile court determines in remand that the juvenile did not have capacity to commit the charged offense, the adjudication must be dismissed.

Translation: A juvenile under 12 is presumed to lack capacity to understand the nature of charge(s) against him/her and to assist in his/her defense. Before this kind of a case can proceed, the court must hold a “capacity hearing” to determine whether the child can adequately understand the nature of the allegation(s) and assist their attorney.

Failure to Provide Interpreter Services Could Cause Dismissal

State v. Jieta No. 77800-5 (February 10, 2020), Washington Court of Appeals, Division One.

Brief: The court did not err in applying CrRLJ 8.3(b) to dismiss the  defendant’s charges due to court mismanagement, because court administration was governmental in nature, and governmental misconduct for purposes of CrRLJ 8.3(b) could extend to mismanagement by court administration; the State did not establish that the court erred in its conclusion that CrRLJ 8.3(b) could extend to a court’s administrative mismanagement of its statutory obligation to provide translator services.

Translation: A court’s failure to provide interpreter services can be construed as governmental misconduct requiring dismissal if such misconduct prevents the accused from getting a fair trial.

No Delegation of Legislative Function to Another State

State v. Reynolds No. 51630-6 (February 4, 2020), Washington Court of Appeals, Division Two

Brief: The defendant’s conviction of failure to register as a sex offender was improper because RCW 9A.44.128(10)(h) was an unconstitutional delegation of the legislative function insofar it allowed another state’s legislature to define an element of the crime of failure to register as a sex offender. The legislature could not delegate to another entity the ability to determine what constituted a crime in Washington.

Translation: Washington law specifies certain convictions where one must register as a sex offender. Only Washington law can dictate which convictions require registration. For example, a California law requiring registration for a California conviction cannot be construed to then require the person to also register in Washington if they were never required to under Washington law.

A Conflict to One is a Conflict to All

State v. Nickels No. 96943-4 (January 30, 2020), Washington Supreme Court.

Brief: By plurality opinion, the intermediate appellate court’s decision disqualifying the prosecuting attorney’s office was proper because the elected prosecuting attorney’s previous involvement in defendant’s defense was not extraordinary, and no further analysis was required to conclude that office-wide disqualification was appropriate; State v. Stenger—holding that an elected prosecuting attorney’s previous representation of a defendant in either the same case or a closely interwoven matter should ordinarily disqualify the entire prosecutor’s office—remains good law, and the amendments to RPC 1.10(d) and 1.11 cmt. 2 enumerated a general rule for imputation of conflicts of interest between government attorneys and their offices that is in harmony with Stenger’s narrow rule.

Translation: If a prosecutor formerly represented a defendant in the same case or closely interwoven case, the entire office is disqualified from pursuing prosecution. A different office can prosecute the defendant.

Juror Statement of Actual Bias Requires Reversal and Remand

State v. Guevara Diaz No. 77811-1 (January 27, 2020), WA Court of Appeals, Division One.

Brief: Before voir dire, juror 23 stated, in a juror questionnaire, that she could not be fair to both sides in a trial for sexual assault or abuse. The trial court refused defense counsel’s request to question her outside the presence of other jurors to avoid tainting the other jurors. During voir dire, no one asked juror 23 about her answer. She served on the jury that convicted the defendant of second-degree rape.  The Court of Appeals reverses the conviction and remands the case for a new trial. Juror 23’s answer shows actual bias. Because the trial court did not sufficiently oversee the juror selection process or conduct a sufficiently independent inquiry before allowing this apparently biased juror to serve, it did not adequately protect the defendant’s right to a fair and impartial jury. The presence of a biased juror can never be harmless and requires a new trial without a showing of prejudice.

Translation: Actual juror bias is NEVER harmless error (it’s prejudicial), meaning it requires a reversal of a conviction and a new trial (reverse and remand). When a juror says that s/he cannot be fair, that juror has actual bias. Without further questioning about why the juror cannot be fair and whether that reason(s) truly affects the juror’s impartiality, the defendant cannot have a fair trial with that juror.

Last Minute Changes to Charging Instrument

State v. Brooks No. 97150-1 (January 23, 2020), Washington Supreme Court.

Brief: The court did not abuse its discretion in granting the State’s motion to amend the information to merely expand the date range concerning the molestation charge because the amendment did not alter the substantive charge and only expanded the time frame to conform to the defendant’s confession during his testimony at trial.

Translation: The State may modify the date(s) on which the alleged crime occurred if evidence establishes different dates than was originally charged.

Note: In practice, once the State rests (completes their case-in-chief by finishing questioning of their last witness), the court will not permit further amendments to the charging instrument (the “information”).

No Error Telling Jurors They’re Not on a Death Penalty Case

State v. Pierce / State v. Bienhoff No. 96344-4 (January 9, 2020), Washington Supreme Court.

Brief: The Washington Supreme Court overruled its holding in State v. Townsend, 142 Wn.2d 838 (2001), that it is error to tell the potential jurors during jury selection that they are not being asked to sit on a death penalty case.

Translation: If during jury selection, a lawyer tells possible jurors that they are NOT being asked to sit on a death penalty case (presumably when they are), there’s no error. Therefore, a conviction cannot be overturned due to this kind of statement.

Inculpatory Recording Properly Admitted

State v. J.K.T., No. 78413-7 (December 30, 2019), Washington Court of Appeals, Division Three.

Brief: The juvenile’s convictions for multiple counts of murder in the first degree for his participation in a shooting in a homeless encampment were proper because the recording of utterances made by the juvenile’s brother was plainly supported by a finding of probable cause, and the term “incident” in RCW 9.73.090(2) did not mean accidental. The authorization to record the brother was supported by probable cause and thus, the incidental recording of the juvenile did not need to be independently supported by probable cause as to him in order to be admissible at trial against him. The application for a judicial authorization to make a one-party consent recording of the brother satisfied the requirements of RCW 9.73.130(3)(d), in part because it accurately stated that recording was expected to occur in a homeless encampment in Seattle.

Translation: Defendant’s convictions were upheld because inculpatory recordings were properly admitted into evidence under two statutes.

Failure to Signal Continuously is a Lawful Traffic Stop

State v. Brown, No. 96884-5 (December 26, 2019), Washington Supreme Court.

Brief: Because the defendant did not signal continuously while his vehicle turned left through an intersection, he violated RCW 46.61.305. The phrase “when required” in RCW 46.61.305(2) compels drivers to use their signal every time they turn or change lanes on a roadway and relates to the manner in which the required signal is made—continuously during not less than the last 100 feet traveled.

Translation: Police can pull you over if you fail to continuously activate your turn signal when turning at an intersection.