One of law enforcement’s latest tools in the fight against crime is the “geofence” warrant. Unlike traditional warrants that identify a suspect in advance of a search, a geofence warrant essentially allows the police to work backward, gathering data to identify electronic devices at or near the scene of a crime during a specified time period. By identifying all (or most) of the electronic devices, further requests lead to the account holder for those devices, and (hopefully) a suspect. This law enforcement tool presents some novel constitutional issues.
To understand geofence warrants, one must first understand what data the government is seeking, where it is stored and how it got there. When a person uses an Android device, and “opts in” to utilize Google’s location service (such as Google Maps), that device’s location is constantly recorded and stored in Google’s enormous database called Sensorvault. The business of tracking a cellphone user’s location is a major reason Google earns such large advertising revenues. The location data allows Google to tailor ads to people based on where they are. What you eat, read and watch is just some of the data Google captures. But for law enforcement’s purposes, it is the location data, recorded at specific times, that underscores the rapid rise in the application for geofence warrants.
In a hypothetical scenario, the police are called to a robbery of a convenience store. The police are told the suspect fled on foot in a particular direction. Police view the in-store surveillance video, which is grainy at best, and because the suspect is wearing a mask, a solid identification by the clerk is unlikely. Further crime scene analysis fails to turn up any fingerprints, DNA or other usable forensic evidence. The police have hit a roadblock. Thus, they seek a search warrant from Google for all data that reflects any Android devices within a prescribed area of the robbery (the geofence) during a window of time from Google’s database. After conducting a search of the Sensorvault database, Google responds with location information of all the devices using the Google app that were present within the prescribed area during the prescribed period of time.
The police at this point have only each device’s identifier, not who it belongs to. In order to gather that information, the police must narrow the field and look for a device (or devices) that was in the store at the time of the robbery as well as any devices that followed the path the robber fled. Armed with this information, the police seek a second warrant, asking that Google produce information about the subscriber for each account linked to a device within the geofence. Once Google supplies that information, further investigation may lead them to a particular suspect for which probable cause exists for that person’s arrest for armed robbery.
Remember that in the U.S. Supreme Court’s decision in United States v. Carpenter, the Court ruled that the Third Party Doctrine does not apply to cell phone location data. The Third Party Doctrine stems from U.S. v. Miller, in which the Supreme Court ruled that information that you voluntarily give to others, such as bank records or dialed phone numbers, do not carry a reasonable expectation of privacy under the 4th Amendment to the U.S. Constitution. Instead, they ruled that location data, or the privacy in a person’s physical movements, must be strongly protected. The decision did not overrule the Third Party Doctrine, and it did not suggest the exception to it granted in Carpenter would extend more broadly. The Court called our cell phone location data “unique” in this regard.
But also remember that our state Supreme Court has repeatedly found that Washington Constitution, Art I, sec. 7 is qualitatively different from the Fourth Amendment and provides greater protections. Article I, section 7 “is grounded in a broad right to privacy” and protects citizens from governmental intrusion into their private affairs without the authority of law. State v. Chacon Arreola, 176 Wash.2d 284, 291, 290 P.3d 983 (2012). Under article I, section 7, a search occurs when the government disturbs “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984). Indeed, the Washington Supreme Court has specifically found that individuals have a constitutional privacy right in their cell phone location data. State v. Muhammad, 194 Wash.2d 577, 584, 451 P.3d 1060 (2019).
Currently, there are no appellate court decisions in Washington determining the validity of geofence warrants. In a federal court in Chicago, two federal magistrate judges have ruled that applications for geofence warrants there were unconstitutional under the Fourth Amendment. See, In the Matter of Search of Information Stored at Premises Controlled by Google, Case No. 20 M 297 (USDC for Northern Ill., E. Div., 2020). The court found that the application there had two Constitutional infirmities: 1) overbreadth and 2) lacking particularity. While prosecutors have argued that they tailor geofence warrants as narrowly as possible, privacy advocates assert that the warrants inherently sweep up innocent people in the data dragnet.
In at least one instance, Geofence data ensnared a man who seemed to be at the site of a 2018 killing in Avondale, Arizona. Jorge Molina spent six days in jail before his lawyer provided police with evidence exonerating him. His mother’s ex-boyfriend was later arrested in the killing. It turns out Molina had given the man his old cellphone, which was still logged in to his Google account.
As technology advances, lawyers and judges will be called upon to struggle with newfound capabilities in data collection. Society’s privacy concerns will continue to be weighed against the government’s interest in public safety and criminal investigations.
Judge Michael Schwartz was appointed to the Pierce County Superior Court in 2015. Prior to taking the bench he practiced mainly criminal defense in both State and Federal courts. He is an instructor at the Washington State Judicial College, teaching search warrants to Judges and Commissioners. Judge Michael Schwartz (253) 798-7576.
How much are your cases really worth? You probably have an estimate of the profits you’ll make and you might even have an estimate of time it will take but there’s more to a case’s value than quantitative measures of time and money. How do you measure the aspects that aren’t so easily reduced to numbers, the qualitative value of your case? How do you measure the emotional toll a case takes on you and your staff? How do you track the goodwill of past clients that become referral sources? This article explores the lesser known elements that lawyers need to consider as they assess the value of a case and ways lawyers can track and measure a more comprehensive case value. As boss likes to remind us “what’s measured is managed.”
Lawyers think a lot about client fit before they take on a case, but what about after? Many lawyers are hesitant to think too hard about client fit once the contracts are signed because they feel trapped. But even if you can’t dismiss a bad client, recognizing issues early is an important aspect in understanding the value of the case. Poorly fit clients require more time and effort to reach the same conclusion.
The simplest way to assess client fit is to just ask your clients. Have an automated system to request feedback on a monthly or quarterly basis. Take the time to occasionally ask your clients “How am I doing?” and really listen to their answers. In assessing client feedback it’s important that at least some of your data is anonymous.
Client fit is a top way street so as often as you ask your clients for feedback, you should ask yourself and your staff the same questions. It can be hard for people to honestly assess their own feelings so it can be helpful to ask less direct questions. Instead of asking staff which clients they dislike, ask them which cases they would trade to another staff member if they could. This question models an experiment economists regularly use to assess the true value of goods and it can be very helpful in determining the true value of your cases. The more a case is worth, the worse the client fit will have to be for a staff member to want to trade it.
In the words of Big Tom Callahan, “you’re either growing or you’re dying, there ain’t no third direction.” Whether you agree with this or not, there can be no question that most attorneys want their firm to grow. A lot of us have likely taken cases not for their dollar value, but for their value in potential referrals. Where many lawyers are lacking is in defining a method to track their referrals, and to assess a client’s likelihood of becoming a referral source.
Net promoter score (NPS) is the most common tool for measuring the strength of your referral network. It starts with a simple question to your clients: On a scale of 1-10 how likely are you to refer your friends to my firm? 9s and 10s are considered promoters, 7 and 8 are neutral and 1-6 are detractors. To calculate your NPS you take the percentage of promoter responses and subtract the percentage of detractor responses the higher your number, the more your referrals are powering growth. Odds are you’ve been asked this question many times already by various services you use. Though it may seem like a somewhat arbitrary question it has been widely tested with consistent results in various industries.
NPS alone isn’t enough to really assess the value of individual cases. Someone may be willing to recommend you but, if they don’t know anyone, that willingness has little value. Every time a new potential client calls my office we ask them who referred them to us. That name (along with a lot of other data) is stored in a searchable database. In addition to providing useful information on its own, a database like this can be compared against your NPS to help determine the tangible referral value of a case.
No matter how much you love it, legal work is emotionally draining and it’s important to take that into account as you assess the value of a case. This is one of the more difficult data points to track, especially on a case-by-case basis. Asking yourself and your staff which cases they would trade is a start but it only gets you part of the way there. Some of my favorite cases were also some of my most emotionally draining.
Consider instituting a regular checkup with staff in your office. It can be as simple as asking people how they feel about work each week with a series of emoji faces to chose from. Or you can have people once a month reflect on which cases have been hardest for them and which the most rewarding. This sort of data can take time to collect, but it’s a lot easier than having to retrain staff every year due to high burnout.
Conclusion: How To Use Your New Data
Collecting all of the data discussed above is pointless if you don’t regularly analyze it and put it to good use. Thankfully, there are a lot of things you can do to fix the problems your data identifies.
Talk to the clients whose attitude and frustrations are decreasing the value of their case. If you can improve their relationship with your firm, the value of the case can be raised just as it is by hiring a good expert witness.
Move the client to a new staff member. Unfortunately, this doesn’t work in solo offices, but where there are multiple people handling cases, this can be extremely effective. Sometimes people have personalities that just don’t mesh and it becomes a drain on your client and your staff. A simple staff trade can solve the problem with little to no interruptions in case progress.
Terminate the client. Obviously, this should be a last result, but most lawyers are more reticent to terminate a client than they should be. The more work we put into a case, the more the ‘sunk costs’ fallacy tells us not to give up. Having consistent data can help you recognize the issue early and let clients go before it gets difficult.
At the end of the day, money and time will always be the most significant factors in determining case value but that shouldn’t mean that they are the only factors you consider. The ideas discussed above are only a small sample of the possible data points you can collect as you begin to dive deeper into the value of your cases.
Jordan L. Couch is an attorney and cultural ambassador at Palace Law where his practice focuses on plaintiff’s side workers’ compensation litigation. In his spare time, Jordan seeks out new ways to build a more modern, client-centric law practice. Contact him at firstname.lastname@example.org or on social media @jordanlcouch.
Greetings my friends! With Veterans Day behind us, I started thinking about how my military service as a Judge Advocate (JA) Officer both benefited and defined me as a civilian attorney. There are quite a few Pierce County lawyers who were JAs including US District Court Judge Settle and Pierce County Superior Court Judges Nevin, Costello and soon to be Judge Quinlan.
The nexus between being a JA and success as a civilian lawyer would seem pretty obvious so I decided to write about some members of our local Bar who served their country in a non-legal capacity. I wanted to know why they joined the military, what job they had, and how their military service either affected their decision to become an attorney or helped them in their legal careers. I also asked them to include a story about an interesting event that occurred during their service, and to include a picture.
I got enthusiastic responses from folks who served in every branch of the military. The following accounts are in each veteran’s own words with slight editing. I hope you find them as interesting as I did.
Captain Amanda Searle, Army – Plaintiffs Attorney, Connelly Law Offices
Growing up, I had always been interested in working for the government. Service to my country, self-discipline, and being a part of something larger than myself ultimately made me want to explore an opportunity in the military. My sophomore year at Lafayette College, I took a Military Science class in Land Navigation and loved it! The summer between my sophomore and junior years of College, I went to Basic Training at Fort Knox, Kentucky. I did well and was offered a scholarship for my last two years of school, so I jumped at the opportunity! After my college graduation, on May 19, 2001, I was commissioned as a second lieutenant into the U.S. Army. I was assigned to the Signal Corps, which sets up secure and non-secure communications (phones and internet) in tactical and garrison settings. After attending the Officer Basic Course at Fort Gordon, I was stationed in Germany for four years.
When we arrived in Kuwait in March of 2003, I learned my platoon had been assigned to the 1st Marine Expeditionary Force as one of the two major U.S. land forces to participate in the 2003 invasion of Iraq. Our mission was to set up communications along the supply route heading to Baghdad from the Kuwait border. The land invasion was preceded by an airstrike on the Presidential Palace in Baghdad on March 20.
I recall lying on the hood of my truck at dusk about five miles from the Iraq border, looking up at the sky as the missiles flew overhead and waiting for the booms that followed as they struck the earth. The following day (three days before my 24thbirthday) my platoon was part of the first coalition forces to cross the Kuwait-Iraq border. As platoon leader, I was the convoy commander—meaning that I was the lead vehicle responsible for safely getting us to our objective. What struck me as odd was the absolute chaos of those first few days. For some reason, I thought war would be more organized. But it wasn’t. The supply points and refueling stations had not been set up yet and the supply route was not secured, so we had no idea what lay ahead as we drove further into Iraq and closed in on Baghdad.
My driver and I didn’t sleep for days as we tried to navigate our way across the expansive desert to the small winding streets that led us through towns where local nationals swarmed the streets. We had no idea whether they were friendly or whether they were going to attack. Unfortunately, it went both ways. What was fascinating to learn about myself was how focused I could be, no matter how exhausted, when fueled with sheer adrenaline and fear of the unknown.
My service in the military has opened so many doors for me as an attorney. I think having done military service shows a certain sense of self-discipline and accountability, along with an ability to work hard under pressure and to be a good team member. I think this has been beneficial in my previous job searches. Trials for me are akin to being at war. You depend on your co-counsel to have your back and you prepare as if you are going to battle for your client. Just like those I went to war with, there is a certain unspoken trust and bond between colleagues who try cases together. It is so gratifying to work with a firm full of professionals who are like-minded.
Captain Mark Arend, Air Force – Family Law Attorney, McKinley Irvin
I joined for many reasons, a couple of which stand out: it was an opportunity to serve, I really liked that. I could make it through pilot training (many didn’t). Serving represented an opportunity to learn a lot, including flying all over the world.
I served in the US Air Force as a Fighter Pilot. (editor’s note: Mark flew the F 15 Eagle). I was selected for a NATO fighter pilot training program at the start of my service and that changed everything. I came from small towns (Yakima, Westport). I didn’t know much. I learned incredible things from the service members of many countries and cultures on the other side of the world. I made lifetime friends that live just about everywhere. That has changed my perspective forever.
During my service, it was obvious that teamwork was number 1. In my command, only a few people out of thousands became pilots. It took a massive effort from a lot of people to make sure one jet was ready for takeoff. We were all in it together. Frankly, I had the easiest job with the best view. Recognizing and appreciating everyone’s contribution to our mission turned out to be the most rewarding and memorable part of my service, by far. It’s the same in the law.
Sergeant Mike Schwartz, Army – Judge, Pierce County Superior Court
I was a junior in college at the time, attending James Madison University in Harrisonburg, VA. A buddy of mine, a football teammate, began talking to me about joining, so we went down to the recruiter to see what our options were. “Oh the places you’ll go”, he said. I wasn’t too happy at school by that time, and felt I needed a change of scenery. After I took the ASVAB, the recruiter told me I could have my pick of jobs. At the time, you could also pick your duty station (you can’t do that any longer). I thought, “I’ve never been to Hawaii,” and before you know it, I signed up. Looking back on it, I probably should have waited to graduate, and then become an officer, but it was a good decision for me at the time and I’ve never regretted it.
I joined the Army and was a 95B, Military Police. I had an interest in a law enforcement career, so it seemed a good fit. Little did I know that, for the most part, you manned a gate, mostly at god-awful hours, or spent time training in the field. We got to travel quite a lot, though, with deployments and training exercises, so I got to see a bit of the world.
I once deployed to Kwajalein Atoll in the South Pacific with a small security team. At the time, it was the site of an Army base with a missile launch site. When they asked for volunteers, one of my warrant officers, who was tasked with putting together the team, pointed at me and said, “Schwartz, you’re going.” It turned out to be a great trip, as I got to explore the island the Marines and Army took from the Japanese in 1944, during World War II. There were still bunkers and wrecks of landing craft, but also areas that were a no-go because of unexploded ordnance. The water around the atoll was the bluest I had ever seen, and the reefs were visible from shore.
As I said, I have never regretted joining the Army, and my experience has literally formed my life’s endeavors since then. I was able to surpass what I thought were my limits, both mentally and physically. My service boosted my self-confidence, as well as my self-reliance. Importantly, my service taught me to never be afraid to try new things, and that discipline and commitment to a goal were key in my future endeavors. It also taught me the principles of leadership, (both good and bad) which has helped me enormously in my professional career.
I joined the military right out of high school for pretty practical reasons. I wasn’t quite ready to commit to college and I really didn’t have the financial means to attend. I received a brochure for the Coast Guard in the mail when I was a senior in high school and decided then to join the military. I was a military kid growing up and we settled in Washington because of Ft. Lewis (now JBLM), so it was a natural option for me to consider military service right out of high school.
I served four years in the U.S. Coast Guard as an enlisted person. Right out of basic training (boot camp), I was stationed onboard the icebreaker Polar Star as an engineer’s apprentice (Fireman). A few years in, I attended “A” school for training as a marine science technician (MST) and was stationed in the San Francisco Bay area doing pollution investigation work.
My Coast Guard service gave me a lot of unique experiences, but I would probably say time spent on the icebreaker Polar Star was by far the most interesting life experience to me. Shipboard life can get quite challenging, but our superiors knew how to make some moments pretty fun. Like swim call at the equator (with the small boats out doing shark patrol) and giving the crew “ice liberty” in Antarctica to ring in the New Year.
Looking back on my time in the Coast Guard, it was very empowering. Military service truly gave me the confidence to become a lawyer. And, with my GI Bill benefits, I was able to pay for undergrad and law school. Also, a few life lessons from basic training have stuck with me and served me well during my legal career, like the value of teamwork, attention to details, and respect for the rules.
Petty Officer 3 Special Warfare Operator (SEAL) Rob Freeby, Navy – Criminal Defense Attorney, Law Offices of Robert Freeby
I joined the military because I wanted to see the world and experience some adventure! Vietnam had just ended when I joined the service in 1976. After being raised on a hog farm in the south-central area of Michigan, I was hungry for the opportunity to serve my country but I also wanted a job in the service that would be challenging and rewarding.
I joined the United States Navy. My job was as an “operator” in the Underwater Demolition/SEAL teams. While I was on active duty, my platoon was not activated for any combat missions. However, we did train daily. My job involved understanding and becoming proficient in hand to hand combat and the use of various weapons, parachuting, scuba diving, small unit tactics, and using various explosives, cross training with other branches of the military. And we trained with foreign special operations personnel as well.
While completing a joint exercise with the Marine Corps on the island of Sardinia, I had the chance of saving a young marine when he fell from his landing vehicle as it was attempting to load onto an amphibious ship. The young marine was weighted down with his combat gear to include a heavy flak jacket, and every time he was able to push himself above water, he had enough time to spit out the water he had ingested and to tell me that he didn’t need any help. I remember thinking that while he was displaying a good deal of confidence, he also appeared to be tiring from his desperation to stay above water, which did not look like he was overcoming. Eventually I was able to get that young marine into a lifeboat, back onto his amphibious craft and aboard the ship. It actually was a very humorous moment for a second or two.
Near the end of my initial enlistment, I decided that given the number of near-death experiences I encountered during my service and the number of fellow teammates that had died as a result of dangerous exercises we engaged in, that I needed to look for a new career that might not be as dangerous. Shortly after making that decision, I met a new frogman that had just checked into our team who was a recent graduate from law school. After many hours of chatting about law school and a career in Law, I decided I would be college and law school bound! No one in my family had ever been to college, let alone a professional school like law. Notwithstanding my lack of formal education (graduating from high school with a 1.9 gpa), I knew from making it through Basic Underwater Demolition/SEAL training that I could achieve anything once I put my mind to it. My graduating class of ’96 initially started out with 119 guys who wanted to be Navy frogman/Seals. However, only 19 of us actually graduated six and half months later from that training. I still chat with many of my classmates often because of the bonds we made during those months of sacrifice during training.
Now forty-four years later, I find myself still telling clients, young and old, that they can achieve anything in this world; they simply need to believe in themselves and never give up until that goal has been accomplished. When a person believes they can accomplish a feat, they often do accomplish that feat, whatever it maybe. Well that’s my story and I’m sticking with it!
Sergeant Steven Avila, Army – Veterans Court Defense Attorney, Pierce County Department of Assigned Counsel
I joined for a couple of reasons. It was the first opportunity I had to exercise some agency. I did not give it a lot of thought, in all honesty. I did not want to go to college, because I did not know what I wanted to pursue. Joining the military gave me a chance to get out of my comfort zone, challenge myself, while also giving me some life options (college, career military, green to gold then career). My family was shocked. I had never expressed an interest before in enlisting, but they were very supportive.
I enlisted in the Army, active duty. My MOS, or Military Skill Identifier, was Chemical Operations Specialist, or was commonly known as NBC (nuclear, bio, chem) now as CBRN (chem, bio, radiological, nuclear). I did my training at Fort Leonard Wood in Missouri. I was assigned to a chemical reconnaissance company, basically in the event there had been a suspected use of chemical weapons we would go in. I deployed with this company to Kuwait. When I returned, I was reassigned to the sister company that did biological reconnaissance and deployed with that company to Iraq but there we did convoy security. On my first deployment, I had a chance to work with the Kuwaiti military and train them in a lot of our procedures; that was a very cool experience.
Overall, joining the military wasn’t the difficult choice, it was how I used the time that mattered. While deployed, my NCO told me that he was going to submit my name for the sergeant’s promotion. I had no desire to get promoted as I was planning on separating and had already been stop/lossed for this deployment. I was reading a book, a military fiction novel, and the dedication was to sergeants everywhere, something to the effect of “to all the sergeants who have tried to make men from boys”, (I probably botched that, but it’s close). That made me think of all the great sergeants I had who positively impacted my enlistment and professional development, but had also helped me grow up. I ended my career getting promoted to sergeant and was really glad I did. That attitude is something I drew upon when choosing to pursue my present career.
Captain Ben Nelson, Marine Corps – Deputy Prosecutor, Pierce County Prosecutor’s Office
I was a junior in high school during 9/11. The terrorist attacks on our country made me realize that the world was not as safe and peaceful as I had assumed. Like many of us, that tragedy left me with a strong desire to take action — to do something about it. I joined up out of high school and went on to serve 12 years of combined active duty and reserve time.
I was in the Marine Corps, first as an enlisted Marine and then as an officer. As an enlisted Marine, I was in landing support, which is basically general logistics (a lot of convoys and airfield operations). As an officer, I was a combat engineer, which includes everything from building bases to blowing things up.
Some interesting experiences I had: helping transport and provide security for poll workers during the 2005 Iraqi national election, meeting General David Petraeus in 2008 in Ramadi, Iraq; wading through the Helmand River in Afghanistan during a rainstorm.
Living in Iraq and Afghanistan gave me a deep appreciation for the rule of law and the many civil institutions we have (elections, jury trials, the post office, etc.). As a lawyer, I get to help uphold the rule of law and improve some of our vital institutions. My training and experience overseas prepared me for trial work. Like combat, trial work requires a good plan, as well as the flexibility and humility to change that plan once things go sideways; it requires significant mental and physical endurance; and, it requires embracing the unknown and getting comfortable being uncomfortable. Whenever I am feeling stressed out at work, there is a little voice in the back of my head saying, “you could be back in Iraq or Afghanistan – hot, tired, miserable.”
Steve Krupa is a staff attorney at Northwest Justice Center where he is working on Veterans Law issues. Prior to that, he was a partner at Krupa & Clark for almost 25 years. Steve has over 23 years of military service as a Judge Advocate. He can be reached at email@example.com
Here is the letter our son wrote about his Dad – Mayo Larkin.
I hope this email finds everyone safe and healthy as we enter the holiday season. I know many of us spent Thanksgiving a little differently than in years past, but I hope we can still be reminded of all the blessings we have and the fun events with family and friends that will return in 2021.
As most of you know, my Dad was diagnosed with Alzheimer’s and Vascular Dementia about 4 years ago. It’s been a very difficult reality for our whole family to face, especially for my Dad. We all know my Dad loves to talk and tell stories. In the early stages after his diagnosis, we talked a lot about what he was afraid of, which mostly centered around the inevitability that he would lose his ability to remember and tell stories, and talk about everything he had done and learned in his life. I think he was equally scared that the good he did and fought for would be forgotten if he couldn’t remember it. I, of course, told him that would never be the case and reminded him that he lived a life full of helping others that impacted so many, and those deeds would not be forgotten. Despite his fears and worries about the impact of this terrible disease, he was committed to staying as positive and upbeat as possible. He has never felt sorry for himself, still laughs a lot, and tries so hard to connect with everyone he sees. He has told me many times that “I’ve lived too good of a life to complain, I wouldn’t change a thing.” His positive mindset from day 1 is what’s helped me get through the last four years, and will be what I rely on to get me through the road ahead. As hard as it’s been to watch the disease take hold, his strength and positive outlook has always been there and, for me, it’s been the thing I’ve grasped on to the most.
It’s interesting the places your mind goes when the greatest man you know is faced with losing his memories of a life lived helping others. I found myself regularly lost in thought, thinking of ways to make sure to keep those memories and good acts alive. My Dad is so proud of what he did, always wanted to make a difference anywhere he could, and would help anyone out if he thought he could. He cares about the people around him, loves his family and friends immensely, and always wants the best for everyone.
This reflection brought me back to my time at Gonzaga. After taking a class midway through my junior year with a great professor who pushed me outside of my comfort zone, I found myself creating the GU Mock Trial Team with her and another student. By my senior year, we’d qualified for regionals, and later for nationals. The problem was, we had no funding from the University to travel. After being rejected by the Dean, I remember calling home frustrated and dejected. My Dad listened and told me to calm down and to not let one set-back take away from the success the team had experienced. A week later, we suddenly had our funding to travel for the mock trial finals, and ended with a top 25 finish. I never thought to ask why the Dean changed his mind to provide the funding, but a few years later while in law school I found out why. As it turns out, after my call home and to the surprise of no one reading this letter, my Dad called in a few old favors with some of the Jesuits at Gonzaga. They walked into the Dean’s office and reminded him of what’s important and that it’s his job to further the passions of the University’s students and to encourage them toward their dreams, not to crush them. Fast forward 20+ years, and the GU Mock Trial program is one of the most successful in the country. Since the program’s inception, Gonzaga has sent a team to Nationals 20 times, with Top Ten finishes in 2005 and 2010. In 2001, the team acquired (and still holds) the national record for the most All-American Awards at any one national tournament, topping out at five awards.
In the reflection of these memories, I realized I had figured out a way to keep my Dad’s spirit and positive impact alive even when his memories were fading. Last Christmas, I was able say thank you to my Dad for silently helping me on my path, and for always going the extra mile to anyone who needed help along their path. After much coordination and planning, Gonzaga University announced the formation of the endowed Honorable Thomas P. Larkin Scholarship for Mock Trial. On Christmas Eve, with our whole family around, I read the press release from Gonzaga and told my dad that what he did would now be remembered forever, the stories would still be shared, and the good work he had done would not be forgotten. He laughed and cried, we all did, and it was the best I’d felt since we got the news about his diagnosis.
Kerri and I have committed to funding the first half of the endowment. Our goal is $100,000, which will provide a scholarship each year in perpetuity to a student who participates in the Mock Trial Program. My parents will be sent a letter each year from the student who receives this scholarship and they will be reminded of the good work that continues to be done in the name of my Dad, who helped so many along life’s journey. I’m writing this letter to you as an update on how things are going for my Dad and also to ask for your participation in helping us reach our scholarship goal.
Please think about the love and memories you hold, and consider donating to the Honorable Thomas P. Larkin Scholarship for Mock Trial to help us keep his memory alive the best way we could think of – by helping other people. Thank you for your consideration. You all have meant so much to my Dad, Mom, and me. I hope everyone has a happy and safe holiday season. I can’t wait until we can get together again soon.
When I awoke on the morning of June 8, 2020 I never thought that by midday I would be face down on the ground with my colleagues outside of Tacoma’s County City Building (CCB), but that is exactly what happened. I walked with a group of lawyers to participate in a nationwide “Black Lives Matter to Public Defenders March” protesting police brutality in the Black community. We were on the ground for 8 minutes and 46 seconds which was the exact amount of time that Minneapolis police officer Derek Chauvin had his knee on George Floyd’s neck before he was asphyxiated. Here in Tacoma, Manuel Ellis was also the victim of police brutality, and we protested his untimely death as well.
As I lay on the cement in my court clothes, it was silent and I took that quiet space to consider the suffering Mr. Floyd and Mr. Ellis went through as they lay dying. I also thought about all of the suffering so many other Black people have experienced because of excessive force used by police.
The march started outside of the Department of Assigned Counsel on Market Street where we were addressed by James Bible, the Ellis family attorney. He spoke about the anguish of the family, their determination to seek justice and the need for change. After his speech, we proceeded with signs in hand to march up the sidewalk on 11th street to the rear entrance of the CCB and silently lay down. After the 8 minutes and 46 seconds were over, we marched to the front of the CCB and were cheered on by onlookers in support. After the group formed a large circle, several members of the march including Public Defenders Corddaryl Woodford and Andrea Jarmon spoke and shared their thoughts and feelings. It was a powerful gathering.
I reached out to one of the organizers of the march, Public Defender Dee Sonntag to learn more about how this event came about. I learned that she along with several other Public Defenders namely Jessica Campbell, Jennifer Freeman and Sara Alavi were largely responsible for putting the demonstration together. On Saturday, June 6th, the organizers saw a Facebook post from the National Association for Public Defense calling for Public Defenders to protest on Monday, June 8th. They got to work and Dee Sonntag reached out to James Bible who immediately said he would travel from Bellevue to support the demonstration. The Kiro 7 News team was contacted, an email went out to local Public Defenders, and the protest was thus organized.
I asked Ms. Sonntag why she felt the need to demonstrate in her role as an attorney and she said “It is imperative that Public Defenders use their unique position as witnesses to racial injustice not only to show up, but to stand up.” As a Public Defender, as a Black woman, and as an American, I too believe it is imperative to consistently show up, stand up, and also to speak out against racial injustice.
Lisa Mansfield works as a parent’s attorneys in the Dependency Unit at the Department of Assigned Counsel in Tacoma. She is President of the Pierce County Minority Bar and serves as Vice President of Community Outreach for Washington Women Lawyers.
I am a Black prosecutor in Pierce County, Washington. I am the product of a single mom, born in D.C. and raised in a very segregated Birmingham, Alabama after the riots of 1968.
I attended Berea College – the only college I could afford to attend, a tuition-free, work/study college. I later graduated from Howard University School of Law. I came to Washington State in pursuit of career opportunities. I sometimes wonder what I’d be doing, who would I be if I had not been able to attend Berea.
I’ve debated and discussed with friends and family whether racism exists. And, I’ve tried to explain to some that “all lives matter” is not truth until “Black Lives Matter.” The phrase, “pull yourself up by your bootstraps” is often thrown around, but, what do you say to those who have no boots, no- “privilege”?
It is important to recognize the privilege we benefit from in various aspects of our lives. And, let’s be clear, White Americans have privilege, separate and apart from my privilege, because sometimes, not only have jurors assumed, though in my business suit, with briefcase and relaxed hair, that I am the defendant, I have had a juror try to explain why I am different from the horrible Black people he described in his questionnaire. (After that one I dread-locked my hair) But- that’s another conversation.
The Jim Crow laws that were enacted after the Civil War to limit Black Americans’ access to housing, health care, education, voting, and job opportunities have been modified over the years, yet the spirit of Jim Crow continues to exist in these very systems and institutions in 2020.
We must get comfortable with the uncomfortable.
We must stop changing the narrative.
We must educate ourselves so that we can speak from a place of knowledge when discussing the events that are not only happening today but have occurred over hundreds of years in our America. We must be open to engage in these difficult conversations about racism, which lives matter, and White privilege.
From where I sit, the struggle is real and Black Lives Matter. Here are some books and a couple of movies that I read and re-read for perspective as I navigate and code switch being Black in America:
How To Be An AntiRacist – Ibram X. Kendi
I’m Still Here – Austin Channing Brown
Tough Love – Susan Rice
Ghosts of Jim Crow – F. Michael Higginbotham What Set Me Free – Brian Banks
The New Jim Crow – Michelle Alexander
The Debt – Randall Robinson
So You Want to Talk About Race – Ijeoma Oluo
The Hate You Give – Angie Thomas
White Fragility – Robin Diangelo
The Half Has Never Been Told – Edward Baptist
The African Americans – Henry Louis Gates, Jr. Movie (and book) Just Mercy – Bryan Stevenson *Movie (and book) I’m Not Your Negro –Raoul Peck
*13th – Netflix
Diane Clarkson is a Pierce County Prosecuting Attorney and 2017 President of the Tacoma-Pierce County Bar Association
So, here we are in the middle of a pandemic. And no matter how many science fiction shows I have watched that discuss the pandemic scenario, not a single one of them talks about the effects of this situation on maybe the most important professions in our society, lawyering.
Of course, that may be our collective opinion, still until there is a vaccine, we all do have a crucial role here to deal with legal issues while we wait for “normal”.
So, here are some tips that I have compiled based on my own experience for remote offices.
Create a paperless office. All offices should have or develop a system for scanning all documents, including mail, faxes and client materials. At this point, there is no real reason not to have a system and at least scan all documents for new clients. Like a lot of things, at first this will seem ominous, cost prohibitive and time consuming. We have been scanning our clients’ documents for over ten years now and, at first, is was very difficult to make this change, Now, it really does run smoothly. Benefits? When you and your staff remote in, you can obtain direct access to your clients’ materials without pulling a file or taking a paper file home. The cost is reasonably low depending on the size of your office. For example, a sole practitioner with one paralegal can use a variety of low-cost scanners to scan. The only real issue is how to store the data. So, you will likely need a computer professional to help, keeping in mind taking this major step will open the door to remote computing. Also, we stopped holding client’s original materials years ago, eliminating the risk of inadvertent lost or destroyed documents. Most practitioners have a scanner and a centralized database, so the cost of doing this should be mostly in training and reeducation.
Centralized Calendar and Contact Database. If you are keeping your own paper calendar and contacts instead of using outlook or some other product to centralize that activity, you should switch over to that immediately. The benefits here are obvious. Every person who works for you can access your calendar in real time. We set up one account with Microsoft using Office 365 for the sole purpose of having a centralized calendar and contact system. Instead of having a calendar for each person and sharing one of them, there is a generic email account that includes calendar and contacts. We never use the email function and only use the calendar and contacts. It costs about $5 per month, but it is well worth it for smaller firms considering the function you wish to have all staff access.
Faxes and Voicemail should be emailed to you and your staff. My office uses efax.com for faxes and comcast.net for voicemails. With efax.com, we purchased a phone number directly from them and costs about $240 per year. The beauty of this system is that 1) we don’t need a fax machine for incoming faxes, and 2) all the faxes are emailed directly to me and my staff. Voicemail through comcast.net, our business line provider is also emailed to me and my staff and is converted to text automatically. My staff will review the emailed faxes and voicemails to determine if there is a need for further communication with the sender and then will get back to me. We have a fax machine for outgoing faxes, which my staff can access from their computer to fax things out.
Office computers should have at least two monitors. Because of the reliance on files in the computer to work on case files. There should be at least two monitors on each staff persons desk. One monitor can be used for emails and remote communications and the other can contain case files that you are working on. My staff and I all have three monitors on our desks. The key to the multiple monitors is the ability to move documents from one screen to another seamlessly. Think Tom Cruise in Minority Report where he is moving information and documents on a large screen from place to place. I am Tom Cruise in that scenario.
All staff should have remote access. I and my staff have been remotely accessing our computers for many years. We use “Remotepc.com”. I have found that that product is reliable and easy to use. So the idea is that your computer at your office is mirrored at your home or remote office. If you have more than one screen, Remotepc can handle multiple screens. So, while you are typing at home, it is also typing at your office at the same time. The screen on the office side can be displayed as a blank screen to prying eyes cannot watch what you are doing. The benefit is obvious during this pandemic situation. You and your staff can work on the computer you work with everyday, so you will have limited issues with client confidentiality. In addition, your staff person’s computer at home or remote office won’t have your client’s information residing on it. Each of my staff have a complete mirror of their work computers. For example, my paralegal has a computer with three monitors. So, her desktop at her remote office looks exactly like the desktop at the office. And, since we are a paperless office, there isn’t an issue with not having the documents available to perform the work. Cost is about $30 per year for each desktop, which is way cheaper than any other product out there.
Skype or Zoom access should be available for communication with staff and clients. We have been using Skype, and more recently Zoom.com for communicating with staff. Both products are reliable and generally are safe to use. The benefit of using skype or zoom is that your non-verbal communication (think scrunchy face about a particular thought), is not lost in the mix of communicating with some other method such as cell phone, text or email. One of the benefits of using these products is that you can “share a screen”. This allows your staff or your client to see what you are typing and creating in real time. It is truly an efficient use of time to share a screen with your staff or client. In fact, I am doing that right now. Jessica, who works for me, is reviewing this article while I am typing it and giving me input as to things to communicate, in real time. Skype is free for communicating with other people that have Skype. Zoom costs about $16 per month, but allows you to send an email with a link for the other person to Zoom in for an unlimited amount of time. The difference between the two is that Skype requires another Skype user, while Zoom does not.
During the pandemic, I was working at my office and my staff were working remotely. My wife is the office manager/accountant, so she was also able to work at my office. Skype allowed me to purchase telephone numbers that can be called for $6 per month for each line. Using Comcast’s “be anywhere” function, our phones at the office ring at the office phone and my staff’s remote office at the same time, like we were in two offices next to each other. That created the illusion that my staff were in the next office over. All of this was done a very low cost with a fairly seamless result.
There it is! My thoughts on remote computing. If you have any ideas or thoughts about this subject, or have questions, please send me an email, firstname.lastname@example.org
The ground has shifted under our feet dramatically – and I don’t mean just since the COVID-19 crisis started. Even in the last two weeks, since I was asked to write about how the pandemic is affecting our office, court operations have changed significantly. To call it unprecedented in my lifetime undersells it.
Our immediate focus has been on striking the right balance – to protect the public, keep attorneys and staff safe, and minimize contact while still handling essential business in open courtrooms. With a spirit of cooperation and practicality, the courts, prosecutors, defense, and law enforcement are working together well in these trying times.
The state Supreme Court’s emergency orders greatly reduced, by delaying, trials and most out-of-custody matters. Pierce County criminal court operations are down to the essentials.
Proceedings have been reduced to mostly in-custody arraignments, pleas, and sentencings
Law enforcement is being selective about bookings, focusing on violent offenses and domestic violence. Many cases will be issued by summons at a later date rather than arraigned immediately
More of our work is being done by phone and email, including negotiations between prosecutors and defense attorneys. An emergency court order eliminated the need for most jail visits by defense attorneys, who are advising their clients by phone
The three CD courts have been consolidated into two, with arraignments taking place via a video link to the jail so corrections staff do not have to transfer inmates
A head start
Most prosecutor’s office employees are now working from home. Thankfully, we were more prepared for this than most workplaces, thanks to Chief of Staff Lana Weinmann and our two hard-working IT staffers.
Lana pioneered work-from-home policies at the state Attorney General’s Office several years ago when she headed up the Criminal Justice Division there. She saw great benefit in enabling staff to work remotely, and she put the necessary policies, infrastructure, and technology in place to make that happen. The Criminal Division pilot was so successful that most other AGO units followed Lana’s lead and began allowing and equipping their employees to work remotely.
Lana brought that experience with her to our office, and she started implementing similar work-from-home abilities here a little over a year ago. As coronavirus spread, our ability to work remotely shifted from a “nice-to-have” to a “need-to-have.” The tech capabilities and policies required were already largely in place before this crisis.
While most attorneys and legal assistants are working from home, we do have skeleton staff in the office to cover the CD courts, process criminal charging, and handle emergency matters. Some of our attorneys working from home are negotiating, prepping cases for trial, and working on appeals.
The slowdown on our criminal side has been a blessing in disguise for public records work. It has allowed some of our legal assistants to shift their attention to processing records requests, a relentless responsibility for government agencies.
Looking forward This global pandemic has required flexibility and adaptability from every player in the criminal justice system. I’m proud of the way employees in our office have stepped up to accomplish the people’s business under new circumstances.
We have been deferring much of our criminal work to future dates, and I expect we will all be “digging out” from increased workloads for many months in the future. These unusual times are challenging, but also present us with an opportunity to look at the way our office, defense attorneys, and the courts do business and consider improvements and efficiencies. Perhaps we will emerge from this time reconsidering many aspects of our conventional practices.
I know that more adaptability will be required ahead. We all look forward to a return to “normal,” but we know that it will be a “new normal.”
When Mary Robnett took office as Pierce County Prosecuting Attorney, she brought the historical photos of former prosecuting attorneys out of storage and put them back on the office’s entrance wall. That display sparked an interest in the history of those men, and the helpful staff of the Northwest Room at the downtown Tacoma Public Library provided us their biographical files.
While there are surely interesting stories behind each of the 25 former prosecuting attorneys, it would be hard to top that of William Askren, who was nearly taken out by a female assassin 100 years ago.
Billy the Bootblack
Before the incident that would be splashed across newspapers around the nation, Askren followed an unlikely path to prominence. According to a profile in the Oct. 1919 issue of Sunset magazine, he worked as a shoeshine in Oklahoma, as a bellhop after moving to Tacoma, and later as a jewelry store manager.
Askren did not graduate high school and never attended college, but after an older brother earned a law degree at UW, “Billy reasoned that if his brother could be a lawyer he could be one too, so he bought some law books and studied evenings.” He passed the bar in 1908 at age 23 and launched a legal career, the real motivation for which, Sunset reported, was “a desire to show his father that he could make just as good a lawyer as his brother, even if he didn’t go to the university.”
Askren started a private practice but served a stretch as a deputy prosecutor in 1913-14. In 1918, he was elected Prosecuting Attorney and took office at age 33.
Started with an “illegal operation” charge
The story of how a Tacoma stenographer nearly assassinated the elected county prosecutor starts with a criminal charge by Askren’s predecessor, Fred Remann, against Mrs. Julia B. Smith for what was described in the newspapers as “criminal malpractice” or “performing an illegal operation.” The charging document wasn’t so euphemistic – the former nurse was charged with performing an illegal abortion.
Remann dropped that 1918 charge for insufficient evidence, but Smith faced a new abortion charge in 1919 during Askren’s tenure. This time Smith was convicted, and was apparently none-too-pleased with the sentence: a 2-5 year term in the state prison at Walla Walla. Crucially, she was released on a $5,000 bond pending the start of her sentence.
Dressed to deceive
Smith asked for extensions of her prison report date, first for two weeks, then an additional week, which Askren granted. On the morning of Saturday, April 3, 1920 – two days before she was due to report to prison – she telephoned to ask for another three-day extension. “I asked for the time so that I might finish some sewing for my baby,” she told a reporter soon after her arrest. “When Mr. Askren granted me three days, I thanked him.”
But later that night, she drove to the prosecutor’s house at 2708 N. Tyler St. in Tacoma. Dressed in men’s clothing to confuse possible witnesses, Smith walked to the back door and knocked.
Askren, who had just returned from buying the early editions of the Sunday newspapers, answered the door himself. Smith said nothing but fired off two shots, with one connecting. The bullet pierced Askren’s left lung near the heart, his doctor would later report, and exited near his left shoulder blade.
Smith ran to the car – borrowed from her former employer, Tacoma attorney Rufus L. Sherrill – and fled. Believing himself to be dying, Askren dictated a statement to his wife Bessie describing the attack and identifying the shooter: Julia Smith.
On the lam, briefly
The manhunt was on, but it didn’t last long. Descriptions of Smith and the borrowed Paige car were dispatched to nearby police departments. Askren’s wife called on members of the American Legion and the Elks Club to join the search. Two hours after the attack, Smith was spotted driving the Paige through Puyallup and taken into custody.
Smith was in women’s attire at the time of her arrest. Police believed she stopped at the Puyallup River and dumped the men’s clothing, but dragnetting garnered neither a gun nor clothes. A wig was found in the car, and her purse contained bullets similar in caliber to the Askren shooting. Attorney Sherrill, also suspected of involvement, was tracked down at his office during the search for Smith and held on an “open charge,” but by Sunday night deputy prosecutors concluded he should be released.
The talk of the town
The incident was, of course, the biggest story going in Pierce County, and far-flung newspapers picked it up off the AP wire. Deputy prosecutor James W. Selden, who would soon succeed Askren as prosecuting attorney, led the investigation while the community closely followed news reports of Askren’s recovery at St. Joseph’s. One local editorial wished Askren not just a good recovery, but also a new job:
You are fighting Death now, Billie, and Tacoma’s hopes and prayers are with you. Tacoma wants grim justice meted out to your assailant, but would rather a thousand time [sic] the she coward who shot you down went free and unscathed than to have you lose this fight.
FIGHT IT OUT, BILLIE!
GET WELL, FOR TACOMA NEEDS YOU! Tacoma’s going to take you out of the prosecuting attorney’s office where you have served so well, and put you on the superior bench. It’s the least we can do.
The case was not handled like it might be today. Selden charged Julia Smith with first-degree assault after getting direct approvalfrom the victim, his hospitalized boss, and the trial was held in Pierce County – no change of venue. After deliberating 16 hours, the jury found her guilty and Smith was again sentenced to Walla Walla, this time for a 10-30 year stint.
The aftermath The incident greatly added to Askren’s notoriety, and he used the publicity as a springboard to the Superior Court bench in the fall 1920 election. It also led to Sherrill’s disbarment. In 1921 the state Supreme Court disbarred him because, among other reasons, he “aided and abetted one Julia B. Smith in the practice of criminal abortion” and tried to persuade witnesses from her trial “to make false affidavits” he could use in a petition asking the governor to pardon Smith.
In 1924 Askren ran for state Supreme Court, recruited by state bar leaders who wanted to unseat an incumbent they considered too much of a leftist. He won a seat on the high court but served just under four years of a six-year term. Resigning in Dec. 1928, he explained that with both of his daughters at UW, “we feel that it will add to the happiness of the family if we all live in the same city.” One daughter, Marian, went on to graduate from UW Law and joined her father as a member of the bar in 1931.[i]
Askren returned to private practice, later joining what is now the Ryan Swanson firm in Seattle. He “received a divorce in 1939 when the court declared Bessie incurably insane” (which sounds like its own interesting story) and remarried the next year[ii]. He remained active in Republican politics, the Seattle Public Library board, the Elks, various commissions, and as an amateur magician. At age 79, Askren collapsed and died while golfing at the Seattle Golf & Country Club in Oct. 1964 – more than 44 years after his near-fatal encounter with Julia Smith.
Adam Faber is the communications manager at the Pierce County Prosecuting Attorney’s Office.
[i] Charles H. Sheldon, The Washington High Bench: A Biographical History of the State Supreme Court, 1889-1991 (Washington State University Press, 1992), 78.
Whenever I hear the phrase “give me _____” (insert the number of your choice in the blank) my blood pressure still notches up a good 20 points with the number of heartbeats doing the same. To those of us growing up at a certain time that phrase was usually associated with having to grunt out a number of pushup inflicted by 1) our PE teacher, 2) a coach, or, at least in my case, 3) my mom – still going to counseling about that third one. So I’m making this “ask” cautiously.
WE want everyone to Give 20 in 20. (The “WE” are Ken Blandford, André Peñalver, Tom Vertetis, and me – and hopefully others will want to join us in this endeavor.)
Not pushups – so you can relax. This is easier.
We want those of you who haven’t donated to the Campaign for Equal Justice before to give at least $20 in 2020. And we want those of you who gave last year to give what you gave last year plus an extra $20. Here are all the reasons you should.
Each year the Legal Foundation of Washington awards the Rainier Cup to the lawyers in the county that has the highest percentage of lawyers donating to the Campaign for Equal Justice. It doesn’t matter the amount of the donations; instead, the award goes to the percentage of lawyers donating in any given county. Last year Skagit County lawyers won the honors with 31% of its lawyers donating to the Campaign. We can beat this number – in fact, we can blow the doors off that number. Last year we had 19% of our lawyers donating – we should be able to double that amount with just a little bit of work and break the 50% level – which no county has done before. We have 2,147 lawyers in Pierce County. Last year we had 402 donate to the Campaign. I say we can do 800 lawyers donating in 2020, easily that would get us to the 32% mark. We just need 400 more donors and, at $20 a donation, can you really say “no.” No, in fact, hell no you can’t say “no.”
The Campaign raises money that is distributed to the civil legal aid programs throughout the state including Tacoma Pro Bono. (I know it is Tacomaprobono but I just can’t get past that all being one word.) Part of being a member of our profession, and I want to stress the word “profession” and not a trade, is that we have certain values as a profession and part of being a lawyer is doing our part, both collectively and individually, in expanding access to the legal system for those who otherwise will not be able to retain a lawyer. Donating $20 for this cause is something everyone can do.
I want to keep this short. WE CAN DO THIS.
You can make our lives, and your life, a little easier by going online and donating $20 (or more). You make all of our lives easier because we won’t need to email you, call you, or stop you when we see you to ask for a donation. Just go to www.legalfoundation.org/givenow/ It will only take literally two minutes and you’ll be so happy after you donate – we guarantee it.
From here on out each issue of the Pierce County Lawyer will have a short update on how we are doing as far as number of donors. If you’d like to join in this effort just email me and we’ll be happy to put you on the team.
This is the type of goal that we, as Pierce County lawyers, can do together. If we all pull together, we can show we are committed to expanding access to justice, prove that we are the best county in the state, and have a heck of a lot of fun doing it.
Salvador A. Mungia is a past-president of the Tacoma-Pierce County Bar Association, is current Chair of the Access to Justice Board, and is a longtime supporter of the Campaign for Equal Justice. You can email him at email@example.com