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You might have thought that you were merely expressing yourself and your opinions online, and then someone accused you of harassment and took you to court, seeking an anti-harassment order. What happened to the 1^st Amendment freedom of speech? The 1^st Amendment does protect a lot of speech. One’s speech has to cross the line into targeted harassment or stalking of someone after they have requested to be left alone to lose the protection of freedom of speech for social media postings.

A Seattle criminal defense attorney can protect your legal rights and fight against anti-harassment orders for posts on social media.

What is an Anti-Harassment Order in Washington State? 

A court can issue a protection order telling you not to bother someone who claims you harassed them. This is a special kind of restraining order that can only be used in harassment cases, not other types of cases. Although this is a civil order, violation of an anti-harassment order can result in criminal penalties, and the judge can find the defendant in contempt of court.

How Long Does an Anti-Harassment Order Last?

Most anti-harassment orders last for one year from the hearing. Sometimes, the judge will make a finding that a longer term is necessary.

Can Someone Get an Anti-Harassment Order Against Me Without a Chance for Me to Testify?

Yes, a court can issue a temporary anti-harassment order against you if the person claiming that you harassed them convinces the judge that they are in immediate danger. They must show reasonable proof that you unlawfully harassed them and that, without the temporary anti-harassment order, they will suffer great or irreparable harm.

Before the person seeking the order can get a one-year order, you must get served with the temporary order and notice of a full hearing, which should take place in two weeks. You will get to tell your side of the story at this hearing. 

If you do not attend or participate in the hearing, the judge can enter a one-year anti-harassment order. You will want to have an attorney present at the hearing representing you to protect your legal rights.

What Kind of Conduct Can Result in an Anti-Harassment Order?

The court will evaluate whether the situation involves a series of acts over a period of time, even if brief, that shows an ongoing purpose. The acts must not serve any legitimate or lawful purpose. The conduct must cause the alleged victim substantial emotional distress, including harassment, annoyance, and alarm, and be such that a reasonable person would suffer substantial emotional distress.

The judge will explore these factors:

• Whether the alleged victim clearly told you not to make further contact with them;
• Whether the actions interfere with the person’s privacy or create an offensive, hostile, or intimidating living environment;
• Whether a court has previously limited the contact between you and the alleged victim

These elements will be part of the determination about the lawful or legitimate purpose of the contacts.

What Restraints Can an Anti-Harassment Order Contain?

The details of the order will be up to the judge after hearing the evidence. The anti-harassment order could say that, for the next year, you:

• Cannot contact the person who claims you harassed them;
• Cannot keep the person under surveillance;
• Must keep away from the person’s home or workplace for a specific distance as stated in the order, like one mile or some other distance

The court will notify the police about the order. Law enforcement through the state of Washington can enforce the anti-harassment order.

You will want to talk to a Seattle criminal defense attorney if you get served with a temporary anti-harassment order for social media postings. Contact Jennifer Horwitz Law today.

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DISCLAIMER: This post is intended to share my perspective, insights, and some general information on various aspects of criminal cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

The Governor of Washington State has the power, under our state constitution and some state statutes, to change the fate of people sentenced to death. One of the options the Governor has is to commute, which means to lessen a death sentence. If you are following the case of someone with a death sentence, you might wonder about the possible outcomes and want to know, what is commutation?

A Washington criminal defense attorney can seek a commutation of a death sentence or pursue other potential remedies, like a pardon or a reprieve. Since these remedies vary from state to state, we will discuss the options available in Washington State.

How Can a Person Get a Death Sentence Commuted?

In Washington, the Governor has the authority to commute a death sentence. The only option available is for the death sentence to get lessened to life imprisonment at hard labor, according to RCW 10.01.120. The offender has to file a petition requesting that the sentence get commuted. 

If granted, the Governor will issue a warrant that the proper officers must obey instead of the death sentence. The warrant must contain all the terms, restrictions, and limitations of the commutation.

If the Governor does not grant a request for commutation, the offender has one more option. Our state has a Clemency and Pardons Board. The Board accepts petitions from individuals, organizations, and even the Department of Corrections, asking for the commutation of sentences and pardoning of offenders. The Board reviews these petitions and makes recommendations to the Governor.

Does a Commutation Eliminate a Conviction?

No, a commutation does not change or overturn the conviction. The offender will still have the underlying conviction. The commutation only affects the imposition of the sentence. For example, if someone gets convicted of murder and sentenced to death, the Governor might commute the death sentence to life imprisonment instead of an execution. 

The person would still be a convicted murderer, but not get put to death. A commutation does not carry an implication that the person is innocent of the crime. Also, a commutation does not restore rights lost when convicted, like the ability to hold office or the right to vote in elections.

How is a Commutation Different from a Pardon?

While a commutation of a sentence can relieve the offender of having to serve the sentence, a pardon typically only gets granted after the offender serves the sentence. The Governor of Washington State cannot grant a pardon for a conviction of a federal crime or of the laws of any state other than Washington. A pardon is an acknowledgment that the offender accepted responsibility for the wrongdoing and paid his debt to society.

What Factors Does the Board Evaluate When Reviewing Clemency Petitions?

Each case is different, but here are some of the factors the Board has explored when considering petitions for clemency, which can include a request for commutation or pardon:

• How serious and objectionable the offense was
• The impact of the offense on any victims
• The criminal record and other relevant background information about the offender
• Whether the offender accepts responsibility, shows remorse, and wants to make atonement
• If the offender has met all the financial obligations of the sentencing court, like payment of fines
• How much time has passed since the offense
• Whether the offender has “turned his life around” since the conviction

These are but a few of the many factors the Board can review with a clemency petition. 

If you would like to schedule a one-hour paid consultation with an experienced Washington criminal defense attorney, contact Jennifer today. She can review your case, answer specific questions that you may have, and provide an assessment on whether your case may qualify for clemency.

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DISCLAIMER: This post is intended to share my perspective, insights, and some general information on various aspects of criminal cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

Washington State’s privacy laws generally require the consent of both parties to record a conversation, but there are exceptions to this rule. If an alleged victim records a crime in progress or if the alleged perpetrator accidentally records the event, the audio recording could get used in court. Also, there are additional exceptions for the media, emergencies, threats, and harassment.

A Washington criminal defense attorney can protect your rights if you get accused of or charged with a violation of the law and provide you with guidance on the issue of whether audio recordings are admissible evidence in a criminal trial. 

What Is Two-Party Consent?

Washington is a two-party consent state, which means that both parties to a conversation must consent to the event getting recorded. Consent after the fact is not sufficient. The consent must be granted before the recording takes place.

RCW 9.73.030 makes it illegal for any person, business entity, or state or local government to private communications or conversations between two or more individuals without getting prior consent of all the parties to the communication or conversation. The ban on recording or intercepting private communications applies to communications transmitted by telephone, radio, telegraph, or any other device. 

Exceptions to the Two-Party Consent Rule

As expected, there are several exceptions to the general rule that requires the prior consent of all parties to the conversation or communication. These exceptions include:

• Conversations or communications reporting an emergency, like a disaster, fire, disaster, or medical crisis

• Communications or conversations that include unlawful requests or demands, such as threats of bodily harm, extortion, or blackmail

• Anonymous or highly inconvenient harassing conversations or communications, or

• Communications by a barricaded person or who is holding someone hostage. 

Also, different rules apply to the media and to people who have announced to all the participants in the conversation or communication that the event will be recorded.

How Washington State’s Two-Party Consent Privacy Law Works in Criminal Cases

The Washington State Supreme Court ruled that a victim can record evidence of a crime in progress without violating the two-party consent law. That audio recording, often captured on a cell phone, can get used against the accused at trial.

In the case in question, a husband got convicted of attempted second-degree murder and second-degree assault with domestic violence allegations for beating and threatening to kill his wife. The judge in the bench trial sentenced the defendant to 144 months of imprisonment. The evidence at trial included an audio recording the husband inadvertently made of the assault on his cell phone, including his statement to his wife, “I will kill you,” her response, “I know,” and her screams.

The defendant overturned the conviction on appeal because the recording violated his right to privacy. The state Supreme Court reversed the appellate court, saying that the recording was of a crime in progress and not a “conversation” and intended in the state privacy law. Also, the situation fits into the exceptions for emergencies and threats of bodily harm.

If your case involves the recording of private conversations or communications, you will want to talk with a Washington criminal defense attorney who can answer your questions about how our state’s privacy laws apply to audio recordings in criminal trials.  Contact Jennifer today to schedule a consultation.

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DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of criminal cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

In an evidentiary hearing, the judge will hear the evidence the prosecution has against the defendant and decide which evidence the jury will get to hear at trial. Of course, the jury is not present for this evidentiary hearing.

You will definitely want to have an attorney attend and participate on your behalf in the evidentiary hearing. A Washington criminal defense attorney can protect your legal rights and answer your questions, such as, “What is an evidentiary hearing?”

What Happens at an Evidentiary Hearings?

The prosecutor usually has the arresting or investigating police officer appears at the hearing and provide testimony. Other possible witnesses for the prosecution might also testify. The prosecution’s witnesses will testify and get cross-examined by your defense attorney. The judge will rule on what testimony and other evidence will be admissible in the actual trial and what the judge will not allow.

What Kinds of Challenges Might Your Defense Lawyer Make at an Evidentiary Hearing?

Your criminal defense attorney can argue that the state did not follow the law when it obtained some of the evidence against you. For example:

• If your charges were the result of a traffic stop, your lawyer might argue that the officer did not have probable cause for the stop.
• Another common objection raised in an evidentiary hearing is that your arrest lacks the level of probable cause required.
• You might have been questioned improperly, in which situation, your attorney will likely argue to the judge that some or all of your statements are inadmissible in the trial.

These are but a few examples of challenges your defense lawyer might raise at an evidentiary hearing. 

Your attorney can file a motion to suppress evidence, whether the evidence is physical, oral (testimony), or identification evidence, according to Rule 3.6 of the Superior Court Criminal Rules for the State of Washington. The motion must contain an affidavit or document and a memorandum of authority that support the motion. 

Opposing counsel can file a memorandum of authority in opposition to the motion to suppress. The judge will either rule on the evidentiary challenge based on the motions or schedule an evidentiary hearing.

Are There Additional Benefits That Can Come from Evidentiary Hearings?

Yes. When the prosecution reveals its evidence, your attorney can use this information to prepare for trial. Sometimes cases settle without the need for a trial because of information exchanged at an evidentiary hearing.

Can You Handle Your Own Evidentiary Hearing Without a Lawyer Representing You?

The law does not force you to work with an attorney, but you will have to comply with the same rules of criminal procedure and evidence as a lawyer. You are unlikely to know the ins and outs of objections, evidentiary rules, or the substantive law as well as an attorney. The laws of our state will not give you a “do-over” if you choose to go without legal representation and do not like the result.

A Washington criminal defense attorney can advocate for you and work tirelessly to get you the best possible outcome in your situation. Call our office today to schedule a consultation.

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DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of criminal cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

If you or a loved one has recently been arrested, you may be overwhelmed by the magnitude of everything that you are facing. As a Washington defense attorney, I want to help you understand the process so that you don’t have to worry about unnecessary issues. Once you have been arrested, you will be scheduled for an arraignment. An arraignment is an initial hearing where the judge will formally tell you the charges against you.  At this early point in the case, with few exceptions, a plea of not guilty is entered and a future court date is set.

Argument for Release

An arraignment is also the time when an argument is made to hold a person on a certain bail amount, release them with no conditions or release them with certain conditions of release.  It is critical to have competent counsel at the arraignment who can argue that you should be released without having to post bail.

Pretrial or Case Setting Hearing

The next hearing after arraignment is a pretrial hearing, which in some courts is called a case setting hearing.  One of three things will happen at this hearing.  Either your attorney will have negotiated that the case be dismissed or resolved in some other way that is appropriate and acceptable to you or your attorney will not be able to reach an agreement with the prosecutor on how to resolve the case and so the case will be set for trial or you and your attorney will not yet be ready to decide whether the case will be resolved by plea or dismissal or whether it will be set for trial and so the hearing will be continued to another date to allow for more time to decide what path the case will go.  Cases are not usually resolved or set for trial at the first pretrial hearing.  It is very typical for several pretrial hearings to be set before the client and attorney now whether they will resolve the case or set it for trial.

Setting a Timeline

In Washington, your arraignment must take place within 14 days of the charges being filed against you. However, many arraignments take place before this deadline.

As one of the final steps to your arraignment, the judge will lay out the next steps in your case. This often sets a date and location of hearings to lead up to a trial date.  If a resolution of a case has been negotiated, the case will be set for a plea hearing and the trial date (if set) will be stricken.  Sometimes a plea and sentencing occur at the same hearing.  For more serious cases, sentencing is usually set for a date after the plea hearing.  It is essential to work closely with your attorney during this time to make sure that your defense has adequately prepared.

Cases can take several months or even more than a year, for serious and complex cases, to get resolved or to proceed to trial.  You should discuss with your attorney what your expectations should be for a realistic timeline for your particular case.

Securing Counsel

It is important to secure representation before the arraignment hearing, if possible.  If you are not able to afford counsel, you can be screened financially to see if you qualify for representation by a public defender.

If you are facing charges or have an upcoming arraignment, call Jennifer to set up an initial consultation. 

DISCLAIMER: This post is intended to share my perspective, insights, and some general information on various aspects of criminal cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

There are two primary types of evidence tampering – tampering with physical evidence and with witnesses. Witnesses can provide testimonial evidence to the court. When a person gets accused of a crime, allegations of evidence tampering can mean additional criminal charges and penalties. 

Some people engage in evidence tampering without realizing the legal implications of this conduct. A 

Washington criminal defense attorney can guide you through the stages of the criminal process and advise you on essential matters, like what is evidence tampering.

An Overview of Tampering with Physical Evidence

Our state law defines “tampering with physical evidence” in R.C.W. 9A.72.150 as taking either of these actions when the individual has reason to believe that an official proceeding is going to take place soon or has already started:

• Trying to change the appearance or character of physical evidence by hiding, removing, altering, mutilating, or destroying the item or making the evidence unavailable for the official proceeding; or
• Presenting or offering physical evidence that the individual know is false.

Also, the statute requires that the person who takes any of those actions must not have the legal right or authority to do those things. If the person does have a legal right or authority to take those actions, the conduct is not tampering with physical evidence.

Any “article, object, document, record, or other things of physical substance” can fall within the tampering with physical evidence statute. A conviction under this law is a gross misdemeanor.

Witness Tampering

Our state laws make tampering with a witness a class C felony in R.C.W.9A.72.120. Every attempt to tamper with a witness counts as a separate offense. 

To qualify as a “witness” under this statute, the person must be:

• Someone who is a witness in an official proceeding or an individual whom the alleged tamper thinks will soon get called as a witness in such a proceeding, or 
• A person who might have relevant information for a criminal investigation, or
• Someone who might have information that could be relevant to the abuse or neglect of a minor child.

Witness tampering means that someone tried to induce such a witness to keep information from the agency or official proceeding without having a legal right or privilege to do so. Trying to get a witness to fail to appear at the proceedings or to give false testimony can also be witness tampering. 

In addition to the penalties that can come with a conviction of a gross misdemeanor or a class C felony, a person found guilty of tampering with a witness or with physical evidence can suffer adverse credibility consequences. The judge or jury will tend to assume that an innocent person would not engage in tampering with physical evidence or a witness.

With so much at stake, it can be a smart decision to work with a Washington criminal defense attorney from the beginning of the matter. Your lawyer can investigate the situation to build your defense, advocate aggressively on your behalf, and try to negotiate a favorable plea bargain when appropriate. Contact our office today.

DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of criminal cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

Many people think that the sentence for a misdemeanor conviction is merely a slap on the wrist, but the reality can be much different. You could spend as much as just under a year in jail and have to pay thousands of dollars in fines.

Your best bet is to avoid a conviction in the first place, and a Washington criminal defense attorney can help you try to do that. Here are five things to know about misdemeanor sentencing:

Possible Jail Time You Could Face for a Misdemeanor or Gross Misdemeanor Conviction

While a judge can sentence a defendant to something other than jail time, like probation or a suspended imposition of sentence, our state laws in RCW 9A.20.021 authorize sentences of jail time in the county jail:

• Of up to 90 days for misdemeanor convictions, and
• No more than 364 days in the event of a gross misdemeanor conviction.

These sentences only apply to adult offenders.

The Fines the Court Can Assess for Misdemeanor or Gross Misdemeanor Convictions

The same statute sets the maximum fines a judge can assess upon a conviction at:

• Not more than $1,000 for a misdemeanor, and
• Up to $5,000 for a gross misdemeanor.

Another option open to the sentencing judge is to sentence the defendant to jail time and assess a fine instead of one or the other.

Which Offenses Can Be Misdemeanors

A crime that is not a felony or a gross misdemeanor can be a plain misdemeanor. Here are a few examples of misdemeanors in Washington State:

• Shoplifting
• Stealing a shopping cart or being in possession of a stolen shopping cart
• Disorderly conduct
• Indecent exposure
• Prostitution or patronizing a prostitute
• Failing to obey an order from law enforcement to disperse.

This list is by no means comprehensive.

Which Offenses Can Be Gross Misdemeanors

Gross misdemeanors are more significant offenses than plain misdemeanors but not as serious as felonies. Here are some things that can get charged as gross misdemeanors in Washington State:

• The first offense of driving under the influence of drugs or alcohol, unless the incident involves factors that qualify for enhanced charges
• Property theft up to a value of $750
• Stealing television subscriptions services
• Stalking – but some forms of stalking can be felonies, such as when there is a protective order in place.
• Violations of a domestic violence order of protection – but this also can be a felony, depending on the specific circumstances.

Many other actions can get charged as gross misdemeanors.

How a Misdemeanor or Gross Misdemeanor Conviction Can Affect Your Life

You might think that after you pay the fine, serve your jail time, or complete probation, a misdemeanor or gross misdemeanor conviction is in your past and cannot affect your life. Nothing could be further from the truth. You will have to disclose past criminal convictions on job applications, apartment lease applications, and other important documents. 

When a criminal conviction appears in your background check, the criminal record could keep you from landing your dream job, getting a promotion, or getting into the college of your choice. It is possible to lose your job and your professional license because of a criminal conviction.

To try to minimize the potential fallout of a misdemeanor conviction and sentence, you might want to work with a Washington criminal defense attorney from the beginning. Get in touch with our office today.

DISCLAIMER: This post is intended to share my perspective, insights, and some general information on various aspects of criminal cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

There are two primary types of evidence tampering – tampering with physical evidence and with witnesses. Witnesses can provide testimonial evidence to the court. When a person gets accused of a crime, allegations of evidence tampering can mean additional criminal charges and penalties. 

Some people engage in evidence tampering without realizing the legal implications of this conduct. A 

Seattle criminal defense attorney can guide you through the stages of the criminal process and advise you on essential matters, like what is evidence tampering.

An Overview of Tampering with Physical Evidence

Our state law defines “tampering with physical evidence” in R.C.W. 9A.72.150 as taking either of these actions when the individual has reason to believe that an official proceeding is going to take place soon or has already started:

• Trying to change the appearance or character of physical evidence by hiding, removing, altering, mutilating, or destroying the item or making the evidence unavailable for the official proceeding; or
• Presenting or offering physical evidence that the individual know is false.

Also, the statute requires that the person who takes any of those actions must not have the legal right or authority to do those things. If the person does have a legal right or authority to take those actions, the conduct is not tampering with physical evidence.

Any “article, object, document, record, or other things of physical substance” can fall within the tampering with physical evidence statute. A conviction under this law is a gross misdemeanor.

Witness Tampering

Our state laws make tampering with a witness a class C felony in R.C.W.9A.72.120. Every attempt to tamper with a witness counts as a separate offense. 

To qualify as a “witness” under this statute, the person must be:

• Someone who is a witness in an official proceeding or an individual whom the alleged tamper thinks will soon get called as a witness in such a proceeding, or 
• A person who might have relevant information for a criminal investigation, or
• Someone who might have information that could be relevant to the abuse or neglect of a minor child.

Witness tampering means that someone tried to induce such a witness to keep information from the agency or official proceeding without having a legal right or privilege to do so. Trying to get a witness to fail to appear at the proceedings or to give false testimony can also be witness tampering. 

In addition to the penalties that can come with a conviction of a gross misdemeanor or a class C felony, a person found guilty of tampering with a witness or with physical evidence can suffer adverse credibility consequences. The judge or jury will tend to assume that an innocent person would not engage in tampering with physical evidence or a witness.

With so much at stake, it can be a smart decision to work with a Washington criminal defense attorney from the beginning of the matter. Your lawyer can investigate the situation to build your defense, advocate aggressively on your behalf, and try to negotiate a favorable plea bargain when appropriate. Contact our office today.

DISCLAIMER: This post is intended to share my perspective, insights, and some general information on various aspects of criminal cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.