jockey changing horses mid race

Can I Change Public Defenders?

By: Vancouver WA Criminal Defense & Personal Injury Attorney Roger Priest

jockey changing horses mid race

can i get a new public defender?

It is not uncommon to get a court-appointed attorney that you either don’t like or have difficulty working with. Many people wonder whether they can get a new public defender if they are not satisfied with their current attorney. Criminal defendants enjoy a right to choose their counsel, but that right is not without some limitations. Much depends on whether your chosen attorney is privately hired or appointed by the court, and there may be other concerns that can limit your right to change your lawyer.

Defendants with private lawyers can freely choose who they work with by hiring and firing whom they wish.  Indigent defendants for whom the court has appointed counsel, however, can only get another court-appointed attorney if they can show the court that there is an “irreconcilable conflict” with their current appointed lawyer.  A simple disagreement between client and lawyer or personality conflict will rarely be enough.  Instead, if you are not satisfied with your public defender, you can try to come up with enough money to hire the private criminal defense attorney of your choosing.

Even for defendants with a private lawyer, there is no absolute right to change counsel if that interest interferes with the court’s ability to promptly and efficiently administer justice.  In State v. Hampton, 90811-7, the Washington Supreme Court gave the courts some guidelines to follow in deciding whether a criminal defendant should be able to switch attorneys.

Criminal Factors to Consider When Granting A Continuance

Trial courts may consider any relevant information in deciding whether to allow a criminal defendant a continuance in order to hire the attorney of his or her choosing.  Every situation is highly fact dependent so these factors are not to be applied rigidly.

Relevant factors include:

  1. did the defendant ask for a continuance early enough to allow the court to adjust its trial calendar?
  2. how long of a continuance was requested?
  3. would a continuance postpone trial beyond the speedy trial deadline?
  4. has the court granted previous continuances at the defendant’s request?
  5. will the continuance seriously inconvenience the witnesses?
  6. did the defendant request a continuance promptly after learning of the reason he would need a new attorney?
  7. was the defendant negligent in being in a situation where a continuance was necessary to obtain a new attorney?
  8. did the defendant have some legitimate reason to be dissatisfied with his lawyer?
  9. could the court reasonably conclude that the defendant was seeking a new attorney simply to delay the trial?
  10. is the current lawyer prepared for trial?
  11. is denial of a continuance likely to prejudice the defendant’s case in a material or substantial way?

The Takeaway

If you have a court-appointed attorney but are unhappy with the level of representation you are receiving, you are best served to hire the attorney of your choice as early as possible.  If you wait until the last minute, the judge can deny a continuance of the case.  Most good private attorneys won’t take a case mere days before trial.  Even a good, but unprepared lawyer, cannot fully represent your best interests. A smart criminal defense lawyer won’t take the case unless he or she knows a continuance will allow sufficient time to prepare the case for trial.

prosecutor with tape over her mouth so she cannot go against plea deal

Reading the Fine Print in Plea Deals – Prosecutor Obligations in Exceptional Sentence Deals – State v. Neiler

By: Vancouver WA criminal defense & personal injury attorney Roger Priest

prosecutor with tape over her mouth so she cannot go against plea deal 

prosecutor obligations for plea deals with exceptional sentences


When a criminal defendant and a prosecutor reach a plea deal, what can the prosecutor argue at sentencing? Because plea deals are like contracts, they bind the parties to honor the agreement. So, what can a prosecutor say to the judge without violating the terms of the agreement?

The Fine Print In Plea Deals

In State v. Neiler, the Division Three of the Washington Court of Appeals considered this question in a case of vehicular assault. Michael Neisler plead guilty to two counts of vehicular assault when he caused a car accident with a blood alcohol concentration two and a half times the legal limit. The accident left one victim badly injured and the other victim blind and permanently physically disabled. The defendant and the prosecutors agreed that the defendant would plead guilty to both counts, including an aggravating factor for the victim who was left blind and disabled.

Aggravating factors are special facts in a case that trigger sentences above the standard sentencing range for the crime. Generally, without an aggravating factor, judges are required to sentence defendants within the bounds of standard sentencing ranges predetermined by the legislature.

Here, the standard range was between twelve and fourteen months. Because the maximum sentence for the crime was 10 years, defendant’s agreement to plead to the aggravating factor potentially opened him up to as much as 120 months in prison. In exchange for his plea, the prosecutor agreed to “defer to the Court with respect to sentencing”.

Both victims chose to speak at sentencing and the victim who was blinded provided a particularly moving statement. Following her statement, the prosecutor also provided a statement before sentencing with which the defendant took exception. Specifically, the prosecutor said:

  • ” I can recall one specific conversation that I had with [one of the victims] at one point over the summer.  And after I asked the question, I realized how silly it sounded and I asked, how much time is enough (for the sentence)?
  • “In a lot of ways this (case) is more severe than a vehicular homicide in that these women have to continue to live with this . . . .”

Based on everything, the trial court sentenced the defendant to 72 months prison. He appealed the conviction and argued that the prosecutor violated the plea deal by making the above statements.

Plea Agreements Are Treated Under Due Process

In Washington, plea agreements are treated as contracts involving a defendant’s fundamental right to due process. For that reason, a prosecutor must recommend to the court whatever terms upon which the parties agree. The prosecution must act in good faith and answer any questions the court may have about the agreement. This requires that a prosecutor not try to undercut a plea deal by expressly or implicitly circumventing the agreement. A prosecutor cannot provide unsolicited information to the court via “report, testimony, or argument that undercuts [its] obligations under the plea agreement.” For instance, a prosecutor cannot offer someone a sentence on the low end of the range, but then argue what a dangerous criminal the individual is (in a underhanded attempt to get the judge to not follow the agreement).  Such an argument undercuts the spirit of the agreement.  In such a circumstance, a defendant could withdraw his or her guilty plea.

Here, the appellate court decided that the prosecutor did not undercut the plea agreement, because the parties agreed to a sentence that was longer than the standard range based on the aggravating factors. Therefore, the prosecutor was not prohibited from laying facts sufficient to support the exceptional sentence. The prosecutor was simply prohibited from making a specific sentence recommendation because she agreed to defer to the court with respect to sentencing.  From there, the judge had wide discretion to give the defendant whatever exceptional sentence the court felt appropriate.  With such uncertainty, it is vital to know what one is agreeing to in a plea deal, because for Mr. Neisler there is no going back on his plea now.

empty chair with reserved sign - voluntary absence from trial

I’ll See you in Court (maybe)! – State v. Thurlby


Voluntary Absence From Trial & The Right To Be Present

By: Vancouver WA criminal defense & personal injury attorney Roger Priest 

voluntary absence from trial - criminal defenseWho says ‘The show must go on’? At least in Washington courts, an absent defendant can be tried and convicted.  This week in State v. Thurlby No. 91220-3, the Supreme Court of Washington decided that a defendant in a felony drug case waived her right to be present at her own trial and conviction when she failed to show up for the last day of her trial.

Tammera Thurlby sold methamphetamine to a police informant and was charged with felony drug delivery.  She showed up to the first day of trial and was instructed to come back the next morning for the second and final day of her trial.  She no-showed and the court issued a warrant for her arrest.  After calling around for her whereabouts and hearing nothing, the court decided to proceed with trial later that day.

The Constitutional Right To Be Present At Your Own Trial

The defendant was eventually arrested on the warrant and given an opportunity to explain her nonappearance before being sentenced.  The defendant said her mother underwent an unplanned surgery and her mother told the court the same story.  Nevertheless, the court decided to proceed with sentencing, finding that the defendant voluntarily skipped trial.  The defendant appealed the decision, arguing that the trial should not have proceeded without her.  On appeal, the Supreme Court decided the issue once and for all.

A criminal defendant has a constitutional right to be present at his or her own trial.  However, a defendant can waive that right, if that waiver is done knowingly and voluntarily.  Washington also recognizes an “implied waiver” in certain circumstances.  That means a judge may decide that a defendant chose to waive his or her right to be present trial without the defendant actually saying so.  Rather the waiver is implied by the circumstances.

In deciding whether a defendant “impliedly” waived the right to be present at trial, Washington law requires a three-part analysis, which comes from State v. Thompson.

Thompson’s Three-Pronged Voluntary Absence Analysis

An appeals court will not second guess a trial court’s ruling that a defendant impliedly waived the right to be present at trial as long as the trial court takes the following steps and reasonably could have decided that the defendant did “knowingly and voluntarily” waive the right. The trial court must:

  1. consider the circumstances of the defendant’s absence?
  2. make a preliminary finding that the defendant voluntarily missed court
  3. allow the defendant the opportunity to explain why he or she was absent before being sentenced.
  4. examine the totality of circumstances and “indulge every reasonable presumption against deciding that the defendant waived his or her right to be at trial”.

The Supreme Court found that the trial court did consider all of the factors that were required.  The trial court considered it important that the defendant never informed her attorney or the court of the medical emergency before (or during) her absence.  Rather, she simply took off and only explained much later after being arrested again.  Also, the court decided that choosing to be with her mother rather than coming to court was just that, a choice, albeit a potentially difficult one.

Because the client chose to be with her mother than be in court, despite knowing that she was aware that the trial was scheduled for that time, the court decided that her absence was a voluntary one.

So, as they say in show business, “the show must go on”.

hand typing on a computer keyboard - search warrants child pornography law

Search Warrants in Child Pornography Cases

By: Vancouver WA Criminal Defense & Personal Injury Attorney Roger Priest

hand typing on a computer keyboard - search warrants child pornography law

How are search warrants handled in child pornography cases?

Today, In State v. Besola/State v. Swenson, No. 90554-1, the Supreme Court of Washington considered whether a search warrant in a child pornography case was specific enough in what items it instructed the police to seize.  Ultimately, the Court decided that the warrant was unconstitutionally overbroad and ordered that the evidence that it led to was inadmissible at trial.

The Fourth Amendment Being Tested In Court

The Fourth Amendment of the US Constitution requires that search warrants “particularly describe[e] the place to be searched, and the persons or things to be seized.”  A search warrant that is not specific enough in what it orders police to seize is unconstitutionally overbroad.  Evidence seized under an overbroad warrant can be excluded from trial, meaning it can’t be used against the defendant.

In this case, the search warrant ordered police to seize all of the defendant’s:

  1. videos and audio recordings;
  2. printed pornographic materials;
  3. photographs;
  4. computer hard drives, laptop computers, and memory storage devices; and
  5. documents demonstrating purchase, sale or transfer of pornographic materials.

The warrant also stated at the top that it was related to an investigation of “Possession of Child Pornography RCW 9.68A.070“.  Pursuant to the warrant, police found child pornography which led to both defendants being convicted.

The Supreme Court of Washington, on review, ultimately decided that the search warrant in that case was unconstitutionally overbroad.  This meant that the defendants’ convictions were reversed an all evidence obtained by the warrant would be excluded.

Specifically, the Court felt the warrant was too broad because it allowed the seizure of all pornographic materials and any photographs (whether legal to possess or not).  The prosecution argued that the warrant was limited by its reference to the child pornography statute at the top of the warrant.  The Court did not buy this argument, because the mere mention of the statute at the top of the warrant did not, in any way, limit or modify what items should be seized.

Search Warrants Must Be Specific

The Court further explained why warrants must be so particular in what they allow the police to search or seize.  The warrant must be specific so police don’t have wide discretion in deciding what to search and seize.  Such ambiguity lets police, rather than a judge, decide the bounds of the search and seizure.  Also, warrants must inform the suspect of what items the police will be allowed to seize.

Interestingly, the Court further stated that warrants that affect First Amendment (freedom of speech) rights must be even more specific in what they permit the police to seize.  Because the right to possess adult pornography is protected by the First Amendment, the warrant had to be particular to the “most scrupulous exactitude”.

While the Court held that merely referencing the child pornography statute at the top of the warrant was insufficient to keep the warrant from being overbroad, the Court did argue that using the language of the statute itself to describe the materials sought would have likely made the warrant sufficiently particular.

The Court relied heavily on State v. Perrone, a 1992 Supreme Court case, that goes further into the rationale if you are interested.