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Leonard Feldman, a partner in the Litigation group, focuses his practice on appellate work and complex commercial litigation. His appellate practice encompasses all phases of civil and criminal appeals, including emergency motions, expedited appeals, case management, drafting and oral argument. His commercial litigation experience includes class actions, antitrust (litigation and counseling), intellectual property, construction law, securities litigation, environmental litigation and civil rights. Leonard is currently a District Coordinator for the Ninth Circuit Pro Bono Program and is the Pro Bono Coordinator for Division One of the Washington Court of Appeals. He is also a lecturer and teaches a course on appellate practice at the University of Washington School of Law.

The Supreme Court unanimously held in State v. Trochez-Jimenez (No. 88557-0) that Miranda and its progeny do not apply when a suspect requests an attorney during an interrogation conducted outside the United States by foreign authorities regarding a foreign crime. Based on that holding, the Court rejected Trochez-Jiminez’s argument that statements he made during custodial interrogation should have been suppressed. Given the lack of case law supporting Trochez-Jimenez’s argument, the Supreme Court’s holding is not surprising.
Continue Reading A Tough Day For Miranda Rights: Supreme Court Holds (1) That Miranda Does Not Apply To Interrogations Outside The United States By Foreign Authorities Regarding A Foreign Crime, And (2) That An Equivocal Invocation Of The Right To Remain Silent Is No Invocation At All

The Washington Supreme Court unanimously held in State v. Medina (No. 89147-8) that petitioner Mario Medina was not entitled to credit for time served for five years of required service in two King County Community Center for Alternative Programs (CCAP): one that required Medina to report in person to the Yesler Building daily as an alternative to total confinement and one that required him to report only by phone. The Court’s statutory and double jeopardy analysis is neither controversial nor surprising. The equal protection analysis, in contrast, arguably misses the point, which is that differences in wealth necessarily lead to two sets of sentencing ranges: one for those who are able to procure pretrial release and one for those who cannot. Such a classification violates equal protection principles.
Continue Reading Defendants Are Not Entitled To Credit For Time Served For Required Pretrial Constraints By Statute, Equal Protection Principles, Or Double Jeopardy Protection Even Though Differences In Wealth Arguably Lead To Two Sets Of Sentencing Ranges.

A six-Justice majority of the Washington Supreme Court ruled in State v. Dobbs (No. 87472-7) that there was sufficient evidence that the defendant had forfeited his Sixth Amendment right to confront his accuser by causing her (through violence and threats) to protect herself by refusing to testify at trial. Three Justices dissented, largely because they viewed the evidence differently and did not see clear, convincing, and cogent evidence (as required to establish forfeiture) that the defendant’s conduct caused the absence of the witness at trial.


The jury in Dobbs found Dobbs guilty of numerous crimes of domestic violence against C.R., including stalking, felony harassment, intimidating a witness, and drive-by shooting. The question presented on appeal was a narrow one: whether the trial court proceedings violated Dobbs’ Sixth Amendment rights because C.R. did not appear as a witness at trial.Continue Reading The Sixth Amendment Guarantees Criminal Defendants A Right To Confront The Witnesses Against Them, But Not If The Defendant Intentionally Causes The Absence Of A Witness At Trial

A five-Justice majority of the Washington Supreme Court ruled in Youngs v. PeaceHealth (No. 87811-1) that a corporate healthcare provider’s defense counsel may communicate ex parte with the plaintiff’s treating physician if – and only if – the communication is for the purpose of providing legal advice, the physician has direct knowledge of the events

International Marine Underwriters v. ABCD Marine, LLC

The IMU opinion is an interesting example of legal gymnastics.  The lead opinion engages in “interpretation” followed by “construction” – distinguishing between the two – in order to give meaning to the operative insurance policy.  It then applies Washington partnership law to ascertain the relationship between a partner and a general partnership to determine whether the partner was a “third party” and therefore entitled to coverage.  The concurring opinion simplifies the issue, although it is still far from simple, and the dissent accuses both the lead opinion and the concurring opinion of misunderstanding partnership principles.  Although not joined by a majority of justices, the lead opinion is likely to be useful precedent in other cases involving complex contract interpretation/construction issues. 

Continue Reading General Partnership Partners Are Not Third Parties For Insurance Coverage

State of Washington v. Wooten [Wash. Sup. Ct. No. 87855-2]

Commentary: David Wooten was convicted of first degree malicious mischief for damaging a home that he was purchasing pursuant to real estate contract. Wooten claimed on appeal that he did not damage “property of another,” an element of the offense, because he had exclusive possessory

In re Disciplinary Proceeding Against Joe Wickersham [Wash. Sup. Ct. No. 201,088-1]

Among the Washington Supreme Court’s many responsibilities is review of disciplinary actions.  Here, the circumstances were especially difficult because the attorney misconduct was caused by mental illness rather than neglect or incompetence.  Nevertheless, given the seriousness of the misconduct, the six-justice majority imposed a three-year sanction and directed that Wickersham pay restitution and undergo an independent psychiatric examination before returning to practice.  The three-justice dissent disagreed based on their view that Wickersham should not be punished for his mental illness.  The case is interesting in that it shows the wide latitude that our Supreme Court has in determining appropriate sanctions for attorney misconduct.Continue Reading WASHINGTON SUPREME COURT IMPOSES THREE-YEAR SUSPENSION OF ATTORNEY WHO SUFFERED FROM MENTAL HEALTH ISSUE

At its October 1, 2013 conference, the Washington Supreme granted review to four cases. We provide a summary of the issues presented in each case below.

State v. Owens
Supreme Court No. 88905-8
Court of Appeals No. 67867–1–I
PFR & Answer


Whether the Court of Appeals properly reversed a conviction for First Degree

In re Cross [Wash. Sup. Ct. No. 79761-7]

The Washington Supreme Court unanimously held in this opinion that a capital sentence can be predicated on an Alford plea.  The court explained that the “advantage” of entering an Alford plea in a capital case is to preserve the ability to argue in the penalty phase that the defendant’s actions were not premeditated.  But if entering an Alford plea does not allow a criminal defendant to avoid the death penalty, this so-called “advantage” hardly seems worthwhile.  Assuming defense attorneys agree with this assessment, Alford pleas may be both inadvisable and obsolete in capital cases.

Dayva Cross pleaded guilty to killing his wife and two of her daughters in 2001.  When Cross pled guilty, he did so by way of an Alford plea.  In such a plea, the accused technically does not acknowledge guilt but concedes that there is sufficient evidence to support a conviction.  A trial court judge can accept an Alford plea only if it is made voluntarily, competently, and with an understanding of the charge and the consequences of the plea and if the judge is satisfied that there is a factual basis for the plea.

Critical to the Supreme Court’s analysis here, the trial court judge and the prosecutor painstakingly walked Cross through the elements of the crimes of which he was charged, his potential defenses, the rights he was relinquishing, and the punishment he faced.  The trial transcript showed that there was substantial evidence from which a jury could find premeditation and a common scheme and design.  The decision to plead guilty was tactical:  it preserved Cross’s ability to challenge these elements in the penalty phase.
Continue Reading Washington Supreme Court Holds Alford Plea Will Support a Death Penalty Verdict

In State v. Chen, the Washington Supreme held that once a competency evaluation becomes a court record, it also becomes subject to the constitutional presumption of openness, which can be rebutted only when the trial court makes an individualized finding that the Ishikawa factors weigh in favor of sealing. The Court essentially balanced the