Local Public Defenders Protest at the County City Building in Tacoma

Defense attorneys outside the courthouse
Here is a very powerful shot of defense attorneys outside the courthouse lying on the ground for 8 minutes and 46 seconds, the same amount of time as George Floyd had a knee to his neck.

By Lisa Mansfield.  

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.

Young African American man addressing protesters
Young African American man addressing
protesters about disproportionate sentences.

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.

James Bible, the Ellis family's attorney, addressing lawyers outside of DAC.
James Bible, the Ellis family’s attorney, addressing lawyers outside of DAC.

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.

Attorney Andrea Jarmon speaking
Attorney Andrea Jarmon speaks to the gathering
of protesting public defenders outside the County-City Building.

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.

 

Photos courtesy of Lisa Mansfield

Black Lives Matter, So What Do I Do With My Privilege?

By Diane Clarkson.  

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

Remote Office Tips and Tricks

By David C. Smith.  

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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,  david@davidsmithlaw.com

 

Unusual Times

By Mary Robnett.  

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.”

History Corner: Julia Smith Nearly Assassinates County Prosecutor William Askren 100 Years Ago

By Adam Faber.  

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.

William D. Askren in a portrait for his Elks Lodge

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.

[ii] Sheldon, Washington High Bench, 78.

“GIVE 20 in 20”

By Sal Mungia.  

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 smungia@gth-law.com

The State’s Duty to Prevent Child-on-Child Sexual Abuse in Foster Care

By Loren A. Cochran, Cole B. Douglas, and Bridget T. Grotz.  

Foster care often involves caring for children who have suffered child abuse or neglect. For example, a 2009 study reported that in a sample size of 155 girls in foster care up to 81% reported being sexually abused, and of those, 68% reported being sexually abused by more than one individual.

While most children who have been sexually abused do not go on to commit sexual offenses themselves, past sexual victimization can increase the likelihood of sexually aggressive behavior. Because of the amount of foster care children who have been sexually abused, child-on-child sexual abuse is a recognized problem in the foster care system. Specifically, Washington State has openly acknowledged the danger of sexually predatory children placed in foster care.

Despite acknowledging the issue of sexually predatory foster children, the State has consistently claimed an absence of duty to prevent child-on-child sexual abuse. Recently, however, a King County Court found that a duty can exist where the State’s actions amount to misfeasance, rather than nonfeasance, under Section 302B of the Restatement (Second) of Torts.

The Underlying Facts:  

In October 2013, Susan and Matthew Cook considered expanding their family through the Department of Social and Health Services’ (“DSHS”) foster-to-adopt program.[1] At the time, the Cook’s already had three young biological children, but they were committed to teaching their family the importance of giving back to the community. In order to best protect their family, Susan and Matthew informed their licensing social worker that they would need to consider a placement on a case-by-case basis and their placement decision would be based on information provided by the department.

In February 2015, DSHS asked the Cooks to be considered as pre-adoptive placement for two siblings who had been “bumping” around multiple foster homes. Although Susan welcomed the idea of placement, the two children, Adam and Victoria, were older than what the family had requested and were licensed to foster. Susan and Matthew had younger biological children in the home, and they were concerned about bringing in older kids.

Before agreeing to the placement, Susan wanted to learn more about Adam and Victoria. She spoke with a DSHS representative and she spoke with two former foster parents of Adam and Victoria. Susan also received documented Child Information/Placement Referral (“CHIPR”) reports on each child. CHIPRs are designed to provide foster parents with a “clear indication” of any behavior concerns and family history. Adam’s and Victoria’s CHIPRs were short with no behavioral concerns listed. Also absent was any information regarding Adam’s and Victoria’s biological relatives and any issues their biological siblings may have been experiencing. Despite the absence of information disclosed to the Cooks, DSHS had significant safety concerns about Adam and Victoria, including signs of physical and sexual abuse. However, DSHS did not relay these concerns to the Cooks.

With no reason to be concerned about any potential safety issues, the Cooks welcomed both foster children into their home. DSHS filed for an age-waiver on the family’s behalf so that children over age four were permitted to be fostered in their home. Following placement, Adam and Victoria continued exhibiting concerning and overtly sexualized behavior. Yet, DSHS disregarded this behavior and still said nothing about the children’s history.

In March 2016, DSHS received a referral from the Cook’s son’s elementary school. The child had been brought to the office for grabbing his peers’ privates. This school touching incident triggered a mandatory call to CPS. Despite receiving an allegation of child abuse and neglect, no CPS investigation ensued. Instead, a foster home licensing review took place. And again, DSHS provided the Cooks with no information about Adam’s or Victoria’s past.

In September 2016, Susan called DSHS informing the department that she had just learned that Adam had been sexually abusing their biological children. This disclosure led to a full DLR/CPS investigation into the abuse. In March 2017, the Cooks brought a negligence suit against the State for the abuse suffered by the Cook children. After discovery was completed, the State brought a motion for summary judgment seeking to dismiss the case because “Plaintiffs cannot… establish any legal duty on the part of DSHS.”

Affirmatively Placing Adam in the Plaintiffs’ Home Without a Warning Created a Duty for the State and DSHS

The trial court denied the State’s motion declaring that DSHS’s affirmative acts arguably exposed the plaintiffs to a recognizable high degree of risk of harm that would not have otherwise existed, thus implicating § 302B. Here, the State placed the danger, foster child Adam, into the Cook family’s home. In fact, DSHS pushed Adam’s and Victoria’s placement, disregarding the Cook’s specific request for younger children and then convincing them to take older children. Further, DSHS controlled all information about the sexual and physical abuse of Adam’s biological siblings. The State chose not to disclose this critical information to the foster parents while knowing this information made Adam a high risk of harm. Consequently, DSHS owed the plaintiffs a duty under § 302B based on the danger the State created.

Loren A. Cochran, Cole B. Douglas and Bridget T. Grotz are Tacoma trial attorneys specializing in sexual abuse and government liability.

[1]   All names have been changed due to the nature of the allegations and to protect the privacy of the juvenile sexual assault victims.

Joel’s Law Mental Health Statute may be a lifeline for family and friends

By Diana Kiesel, Commissioner.  

It is hard to read a newspaper or magazine without an article about the mental health crisis in our county. I’m writing this article during my Civil Commitment rotation at Western State Hospital. Frequently, I see family members appear in court to support loved ones during civil commitment proceedings. The family members often are relieved that a loved one is finally receiving mental health treatment. Some cases on my dockets are initiated by a family member or friend filing a Joel’s Law Petition. Some of you may not know the Joel’s Law process. It is important that we have some knowledge of the process because at some point, all of us will have family members, friends or clients who want to help someone with a mental health history. Attorneys are still counselors at law and often we are asked questions outside our area of expertise. Let me give you some information that may help you educate others about the Joel’s Law civil commitment process.

RCW 71.05.201 and RCW 71.05.203 identifies the Joel’s Law process. These statutes may be lifelines to family members, guardians and/or conservators to petition for civil commitment if a designated crisis responder (DCR) investigated and declined to detain a person, or the Designated Crisis Responder failed to investigate after a request for DCR services was made. Most people assume all lawyers know about all areas of the law. You may be asked for guidance by a client about a family member who needs mental health treatment, but the mental health system seemingly is not responding to the pleas of family and friends. Joel’s Law may be a resource.

The first step in the process is to make sure that a request has been made to the Designated Crisis Responder Team at Mobile Outreach. The criteria for detentions of individual for mental health disorders is “that as a result of a mental disorder presents a likelihood of serious harm, to self, or others, or is gravely disabled. The contact numbers for the Mobile Outreach Crisis Team (M.O.C.T.) ae (800) 626-8137 or (800) 576-7764. Upon referral, a DCR may conduct an interview of the person with acute mental health systems, including information from family and friends. If the person with the mental health symptoms is detained, who will then be the respondent in the litigation, the State may file a petition for involuntary treatment. If the DCR fails to interview the person showing acute mental health symptoms within 48 hours., or the DCR fails to detain that person, a family member or friend may file a Joel’s Law Petition. A significant barrier, however, to treatment could result from a co-occurring diagnosis of substance abuse and mental illness.

Once the Joel’s law petition is filed, the Superior Court Commissioner must review the petition within one judicial day and decide if there is enough evidence to proceed. The Court then issues an order directing the DCR to file, within one judicial day, a written sworn statement describing the reasons the person was not detained or evaluated. The DCR must provide to the court all information material to the DCR’s decision.

The court then issues an order denying the petition if insufficient evidence exists to detain the respondent. The reasons to deny the petition include:   no person allowed by statute filed the petition, petition was filed in the wrong county, there is no evidence the DCR investigator was requested, the petition was not filed within ten days of referral or investigation, or there is insufficient evidence of basis for commitment.

If the court signs an order requiring the DCR to respond, the Court has five judicial days to issue a ruling either granting or denying the petition. The court may order initial detention if there is probable cause to support the petition, and the respondent has refused or failed to voluntarily accept appropriate mental health treatment. Lives can be saved when family or friends are able to access the Court, by filing a Joel’s Law petition seeking the Court’s review of the process and hearing the input of the immediate family.

If you have any questions about this process, please contact the Clerks at the Western State Hospital Court. The Office of the County Clerk at Western State Hospital Court is (253) 756-2951. Also, the forms are found at the Washington Courts website at: https://www.courts.wa.gov/forms/?fa=forms.contribute&formID=97

 

President Lincoln, The General and the Nuns

By Richard F. DeJean.  

Over the years and very much of a rarity, almost to say once in a blue moon, I would hear discussions of how a small convent of nuns from France had an influence on the Emancipation Proclamation delivered by President Lincoln. The Congress then passed the 13th, 14th and 15th Amendments to the United States Constitution. This occurred in Southwest Louisiana, where I am from. Not that these nuns had an influence on the passage of these Amendments, but rather on their content.

As will be seen, this article is not meant to provide authority on any legal issue that might be raised in it, but is, rather, a glimpse into how everyday affairs may unwittingly influence actions of great magnitude.

The Academy of the Sacred Heart was founded in 1821 in Grand Coteau, Louisiana by a group of nuns from France who came to Louisiana at the bidding of its French settlers to provide education for their daughters. (It is the second oldest institution of learning west of the Mississippi). The institution of slavery as it existed in the United States at that time, would probably have been foreign to them.

These had to be women strong of body and spirit for, after landing at New Orleans, they had to proceed up Louisiana’s rivers and bayous and then negotiate rudimentary road systems and swamps. The early settlers laid out physical facilities for them once they arrived at Grand Coteau. And there would have been slaves assigned to assist.   However, after their arrival, the nuns granted the slaves their freedom, kept them at the Academy and paid them for their work.

Nathaniel Prentice Banks

The Civil War actually provides the backdrop for the subject matter of this article.   Nathaniel Prentice Banks was born in Waltham, Massachusetts January 30, 1816. He studied law and was admitted to the Suffolk County Bar and practiced in Boston. He was a member of the U.S. House of Representatives from 1849-1852 and served as its Speaker for two years. He served in the House until 1858 when he was elected Governor of Massachusetts. He entered the Union Army as a Major General May 16, 1861. He had a relationship with President Abraham Lincoln that I suspect arose during his tenure as Speaker of the House of Representatives.

As the Union forces moved to control the Mississippi River and the forts along it, General Nathaniel Banks was appointed by President Lincoln in charge of all forces in the Gulf States. Law and Order, even outside of battle zones, was probably almost nonexistent. In addition to looting by the armies of both sides as they moved through the countryside, there were also bands of marauders preying upon households and institutions throughout the South. When General Banks arrived in New Orleans, where he set up his headquarters, he was informed by his wife that the nuns at Grand Coteau were of the same Order as the nuns providing education to their daughter in a school she attended in New York State. In no uncertain words, Mary Banks told General Banks to protect the nuns at Grand Coteau. Therefore, whenever there was to be an engagement at or around Grand Coteau (and there were several including a major one, called the Battle at Bayou Bourbeau) General Banks would send a detachment of Union soldiers to encircle and protect the convent. Thus began a rather unusual relationship between General Banks and the nuns at Grand Coteau and in particular their reverend mother namely Reverend Mother Amelie Jouve.

At the head of these detachments was a Colonel Chickering. This Colonel took written messages from the General to the Reverend Mother and back from the Reverend Mother to the General. When General Banks began hearing of the school the nuns had established for the children of the slaves, he wrote: “Dear Reverend Madame. Dear Amelie; Dear Aloisia: Today General Franklin liberated the ‘Diana’ into Union hands,   and discovered confederate stores of cotton, the sale of which up North will fund the Union’s needs. Additionally recovered is a large packet of books meant for your children, which Franklin personally delivered to your school. ‘Damn school for slaves there’ he reported when we met up in battle. General Franklin is not an Abolitionist.   Tell me dear lady of this school of which he is indignant? May I learn more….”

In reply, Mother Jouve wrote:

“Dear General:   From our balcony, we see cannon being rolled up…
And the boom shakes the eaves; directly in front yesterday down
the road today…Dear General, many runaway slaves, a huge
population are hiding in our forests. Whole families. Hundreds
without clothes or food. May I beg indulgence for these. Death
from disease and starvation. Yet more arrive. Postscript: For
the books we are again your debtors. To education we dedicate
ourselves, Dear General Nathanial. Education universal is the
only cure for such hatred as you are battling. Less with guns
and more with books; open schools and win the war. Inspired
by Tolstoy, in 1861 we established the ‘Free School’ for the
children of our former slaves.….”

Such was the beginning of the influence Reverend Mother Jouve had on General Banks, which information General Banks would later provide to President Lincoln. This all sounds rather basic today, but at that time, it was unprecedented.

General Banks had the ear of President Lincoln for several reasons, one of which was that he was one of Lincoln’s more favored generals. There was another event which I became aware of doing research for this article; there were 13 parishes in Louisiana which did not secede from the union. And General Banks began negotiating with leaders in these communities in an attempt to begin a movement which would bring Louisiana back into the Union. I learned that John E. Bouligny, who is part of my families lineage, who was elected to the U.S. House of Representatives from Louisiana, stayed in Washington after the outbreak of the Civil War and became involved with President Lincoln and General Banks in the attempt to bring Louisiana back into the Union. President Lincoln sent John Bouligny as his emissary through Union and Confederate lines to deliver a letter to assist in bringing Louisiana back into the Union.   This is probably how President Lincoln became interested in the internal political affairs of Louisiana.

THE CHANGING VIEW OF GENERAL NATHANIEL BANKS ON BLACK SUFFRAGE AND EDUCATION

Acting at the behest of President Lincoln to bring Louisiana back into the Union, General Banks organized a Constitutional Convention which adopted a new Constitution on July 22, 1864. However, despite several progressive features, the new Constitution failed to give blacks the right to vote. While slavery was outlawed, blacks still did not have the right of suffrage although the new Constitution did give the legislature the authority to enfranchise black males. Banks is credited with this provision. However, even he wanted to limited suffrage on the basis of military service, taxation or “intellectual fitness”.

As General Banks continues to correspond with Mother Jouve, we find him writing to her:

“President Lincoln sends praise, and official congressional
thanks.   Lincoln’s smile is evident in his official ‘approval’
stamp on your idea of universal education.”

And in a subsequent letter to the Reverend Mother, written in the formal style of that time, General Banks wrote:

“Shake this country upside down, Mr. President, and re-pattern
it anew in the style of democracy for all! You direct me, my
new Brigadier General Amelie, to name the High Road of
freedom, ‘education’. My fellow officers joke that there will
be more education for Negros in Louisiana than whites. There
are now 30 schools for Negro children!!”

In the work Pretense of Glory by James G. Hollandsworth, Jr. (LSU Press), the author looks at Banks’ campaign for governor of Massachusetts and outlines the differences between Nathaniel Banks as one candidate and Francis Bird as the other, and states:

“Members of the Bird Club believed that slavery was morally
wrong and should be fought unceasingly without compromise.
Banks headed a second faction, known as the Banks Club,
which was moderate, willing to compromise, and practical
in its approach. Although Bank’s faction also opposed slavery,
its members objected to Abolitionism and subordinated moral
justification of their cause to attain political and economic
ends.”

Unknown to Hollandsworth, General Banks had been in communication with Mother Jouve at Grand Couteau and had been receiving her assessment of the good work that the freed slaves did for her at the convent. General Banks’ assessment of black troops continued to moderate when on August 5, 1864, he issued General Orders No. 108 which directed that “requiring these black troops to perform most of the labor on fortifications, and the labor and fatigue duties on permanent stations and camps, will cease, and they will only be required to take their fair share of fatigue duty, with the white troops”.

And as James Hollandsworth, Jr. mentions in his work:

“Although Lincoln’s plan for reconstruction was initiated
simultaneously in the several states occupied by Union
forces, nowhere did it progress as far or have as much
chance for success as in Louisiana. It was in Louisiana
that the first efforts were made to enfranchise the black
man, to provide him with an education, and to set up a
civil government that was responsive to the needs of all
of its citizens.”

As to General Banks’ relationship with President Lincoln, Hollandsworth quoted a letter from General Halleck to General Grant: “General Banks is a personal friend of the President and has strong political supporters in and out of Congress.”   Thus it is easy to see how General Banks had the ear of President Lincoln.

And, continuing, Hollandsworth wrote: “To his credit, Banks did take some steps to hasten the process. Within months of his arrival in Louisiana, he had embarked on an ambitious program to educate former slaves. He started by assigning a white teacher with the rank of lieutenant to each black regiment. Although there was a shortage of trained teachers, by June, 1864, at least nine military schools in New Orleans were serving on average 2400 soldier-students a day.”

I submit that these actions on the part of General Banks were due in large part, if not entirely, as a result of the information he received from the nuns operating the school at Grand Coteau. There were no other persons or factions with whom he associated who would have been responsible for the changes in his thinking.

HOW PRESIDENT LINCOLN’S VIEWS ON SLAVERY EVOLVED

It is clear that President Lincoln’s views on slavery and on how to abolish it changed over the years.   Some of his views were political in nature and some personal to himself.

In a message to Congress on March 6, 1862, President Lincoln stated:

“Fellow citizens of the Senate and House of Representatives,
I recommend the adoption of a Joint Resolution by your honorable
bodies which shall be substantially as follows:

‘Resolved that the United States ought to cooperate with any
state which may adopt gradual abolishment of slavery, giving
to such state pecuniary aid to be used by such state in its
discretion, to compensate for the inconveniences public and
private, produced by such change of system.'”

And in a letter of December 22, 1862, to “Hon. A.H. Stephens”, President Lincoln writes:

“Do the people of the South really entertain fears that a Republican
administration would, directly, or indirectly, interfere with their slaves
or with them, about their slaves?   If they do, I wish to assure you, as
once a friend, and still, I hope, not an enemy, that there is no cause for
such fears.”

And, finally, on April 11, 1865, in his “Gladness of Heart” speech following the surrender of General Lee at Appomattox Courthouse on April 9, 1865 and only three days before his assassination he references that “General Banks wrote me that he was confident the people, with his military cooperation would reconstruct, substantially on that plan” and then he goes on in this same speech to mention that “some 12,000 voters in the heretofore slave-state of Louisiana have sworn allegiance to the Union, held elections, organized a state government, adopted a free constitution, giving the benefit of public schools equally to black and white and empowering the Legislature to confer the elected franchise upon the colored man.”

This is given further credence by Hollandsworth where he states: “Appearing on the balcony of the White House to address a boisterous crowd that had gathered to celebrate Lee’s surrender at Appomattox, Lincoln endorsed the idea of limited black suffrage along the lines Banks had proposed during the Louisiana Constitutional Convention.”

EMANCIPATION PROCLAMATION

Let us now look at what has been termed the preliminary Emancipation Proclamation (September 22, 1862) and the final Emancipation Proclamation (January 1, 1863) and see how they differ. During this period of time, there was no one in contact with President Lincoln regarding conditions of the slaves in the confederate states more so than General Banks. And there was no one, or group, in the state of Louisiana providing more first-hand information to General Banks on the lives of the slaves and their future more so than the nuns at Grand Coteau.

PRELIMINARY EMANCIPATION PROCLAMATION
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION

“That it is my purpose, upon the meeting of Congress to again
recommend the adoption of a practical measure tendering
pecuniary aid to the free acceptance or rejection of all slave-states,
so called, the people whereof may not then be in rebellion against
the United States, and which states, may then have voluntarily
adopted, or thereafter may voluntarily adopt, immediate or gradual
abolishment of slavery within their respective limits; and that the
effort to colonize persons of African descent, with their consent, upon
 this continent, or elsewhere, with the previously obtained consent of the
Governments existing there will be continued.

Done at the City of Washington, this 22nd day of September, in the
year of our Lord, 1862, and of the independence of the United States,
the 87th.”

By the President:
Abraham Lincoln

FINAL EMANCIPATION PROCLAMATION

When we look at the Final Emancipation Proclamation of January 1, 1863, we note, first of all, that there is no further language speaking of “the effort to colonize persons of African descent”.

And, further, President Lincoln in the Final Emancipation Proclamation declared:

“And by virtue of the power, and for the purpose aforesaid, I do
order and declare that all persons held as slaves within said
designated states, and parts of states, are, and henceforward
shall be free; and that the executive government of the United
states, including the military and naval authorities thereof, will
recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to
abstain from all violence, unless in necessary self-defense;
and I recommend to them that, in all cases when allowed, they
labor faithfully for reasonable wages…”

By the President:
Abraham Lincoln

Again, in this final Emancipation Proclamation we see incorporated into it, principles passed along to General Banks from Mother Jouve and the nuns at Grand Coteau.   Thus, General Banks became aware of the need to do more than simply “free” the slaves. They would need schooling and payment for their future labors.

On January 30, 1863, General Banks wrote to his wife, Mary, that his Order on employment of slaves “is the best act of my life and within three months will solve all the troubles here about slaves.”

On April 11, 1865, in delivering his so-called “Gladness of Heart” speech, delivered two days after Lee’s surrender at Appomattox, the President detailed, primarily, the efforts at bringing Louisiana back into the Union and mentioned General Banks specifically, stating: “When the Message of 1863 with the plan before mentioned reached New Orleans, General Banks wrote me that he was confident the people, with his military cooperation, would reconstruct, substantially on that plan…Some 12,000 voters in the heretofore slave/state of Louisiana have sworn allegiance to the Union, assumed to be the rightful political power of the state, held elections, organized a state government, adopted a free-state constitution, giving the benefit of public schools equally to black and white

 

, and empowering the legislature to confer the elected franchise upon the colored man. Their legislature has already voted to ratify the constitutional amendment recently passed by congress, abolishing slavery throughout the nation.”

I believe Banks was at his side when he delivered this speech and while I have not been able to nail this down authoritatively, I have read that at one point in his speech, President Lincoln murmured over his shoulder to General Banks “Thanks to Amelie!”.   72 hours later he was assassinated!

And, whereas Nathaniel P. Banks would never again become Speaker of the House, after the Civil War, he was again elected to Congress and was a member of the House of Representatives on December 18, 1865, when the 13th Amendment was adopted, voting in favor thereof as well as in 1866 voting in favor of the 14thAmendment and voting to approve the 15th Amendment in 1869.

 

So, for the chance that a young girl attended a school in New York taught by an Order of Nuns who would also have a school in the middle of Louisiana’s French Cajun Country, and the posting by President Lincoln of the girl’s father in overall command of this area during the Civil War, we might not have had an Emancipation Proclamation with the strong language for its day, as well as the 13th, 14th and 15th Amendments, or at least as soon as these great laws came to be.

Academy of the Sacred Heart – Grand Coteau
Academy of the Sacred Heart

(This school, the Academy of the Sacred Heart, is still providing excellent education to students in southwest Louisiana on the exact same grounds upon which it was founded.   My mother and both of my sisters graduated from there.)

 

 

Richard DeJean’s practice in Sumner emphasizes personal injury and employment discrimination. He also sits on the Board of Directors for the Sumner Food Bank.

Conversations of a Married Couple, the Best Solace of Human Existence

By Matthew H. Thomas.  

In the spirit of Valentine’s Day, my colleagues on the editorial board suggested that I write about the federal marital communications privilege.

The U.S. Supreme Court has described conversations between a married couple as the “‘best solace of human existence.'”[1] The law on privilege has evolved over time. Today, marital conversations are no longer absolutely privileged.

Federal Rule of Evidence 501

In Federal Rule of Evidence 501, Congress gave the courts the flexibility to develop rules of privilege, to include marital communications privilege. Rule 501 provides in part: “The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise . . . the United States Constitution . . . a federal statute. . . or . . . rules prescribed by the Supreme Court.” But, in a civil case, Rule 501 provides that “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”[2]

Common Law

Federal common law recognizes two separate marital privileges: (1) the so-called “adverse spousal testimony” or “anti-marital facts” privilege, which permits a witness to refuse to testify against his or her spouse; and (2) the “marital communications” privilege, which allows either spouse to prevent testimony concerning statements privately communicated between them.[3]

However, as discussed below, the privilege is not absolute in the case where one spouse wishes to testify about the other spouse’s criminal acts. In addition, the privilege does not apply in cases in which the testifying spouse is the victim.

The common law that we inherited favored absolute privilege. In 1628, Lord Coke of England observed that “‘it hath beene resolved by the Justices that a wife cannot be produced against or for her husband.'”[4]   In Trammel v. United States, the United States Supreme Court rejected the absolute privilege referenced by Lord Coke: “Nowhere in the common-law world—indeed in any modern society—is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being.”[5]

Exceptions to Absolute Privilege

The U.S. Supreme Court has interpreted Federal Rule of Evidence 501 to protect privileged marital communication but not to prevent a spouse who wishes to testify, from testifying about criminal acts that the testifying spouse observed and communications made in the presence of third persons.[6]

In Trammel, the defendant, indicted for importing heroin into the United States, moved to prevent his wife from testifying against him.[7] The District Court held that the defendant’s wife could testify to any act she observed during the marriage and any communication made in the presence of a third person, but the court held that communications between the defendant and his wife were privileged and inadmissible.[8]

The Supreme Court in upholding Trammel’s conviction wrote, “[w]hen one spouse is willing to testify against the other in a criminal proceeding—whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace . . . the privilege can have the untoward effect of permitting one spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband’s control over her testimony.”[9]

No Privilege Exists if the Testifying Spouse is the Victim

No privilege exists if the testifying spouse is the victim of the defendant-spouse’s crime. In United States v. Seminole, the defendant’s wife, whom the defendant was charged with strangling and assaulting, refused to testify at trial.[10] At the government’s request, the District Court compelled the wife to testify.[11] During her testimony, the wife changed her story and claimed that she was the instigator of the attack.[12] However, the prosecutor impeached the wife’s testimony using her prior statements and the jury convicted.[13]

The Court of Appeals for the Ninth Circuit found that the District Court in Seminole had not erred, noting that it was a “well-established exception to the well- established privilege– if the spouse is the victim of the defendant’s crime, the privilege does not apply . . . [14]

Perhaps, the Best Solace of Human Existence, But Not Absolutely Privileged

In conclusion, under Rule 501, though conversations of married couples are perhaps the best solace of human existence, they are not absolutely privileged. Confidential conversations are protected.   However, a witness-spouse may testify against their defendant-spouse concerning acts the witness spouse observed or statements the witness-spouse heard in the presence of third persons.   Further, marital privilege does not apply to the testimony of a witness-spouse who is the alleged victim of a criminal act. In a civil case, state law applies.

Matthew H. Thomas is an Assistant United States Attorney (AUSA) in the Western District of Washington, Tacoma branch, and is a past president of the Tacoma-Pierce County Bar Association.

[1] Trammel v. United States, 445 U.S. 40, 51 (1980).
[2] Fed. R. Evid. 501.
[3] USA v. Seminole, 864 F.3d 1150, 1152 (9th Cir. 2017).
[4] Id. Trammel, 445 U.S. at 44.
[5] Id. at 52.
[6] Id. at 51.
[7] Id. at 42.
[8] Id. at 43.
[9] Id. at 52-53.
[10] USA v. Seminole, 864 F.3d 1150, 1151 (9th Cir. 2017).
[11] Id.
[12] Id
[13] Id
[14] Id. at 1152.