In State v. Coley, the Washington Supreme Court ruled 7-2 that defendants bear the burden of proof for establishing they are incompetent to stand trial after they complete therapeutic treatment designed to restore them to competency.  While the right to be competent during a criminal trial is grounded in the 14th Amendment to the U.S. Constitution, the Court primarily looked to Washington’s codification of that right at RCW Chapter 10.77.  The Court found that legislature intended that the burden of proof fall on the party seeking to establish incompetency at all stages of trial, even after a prior finding of incompetency.
Continue Reading You’re All Better Now: Courts Will Presume Defendants Are Competent After Treatment

In State v. Kipp, a unanimous court reversed a defendant’s conviction because the trial court admitted a recording of a conversation that was protected by Washington’s privacy act.  A six Justice majority further ruled that Washington’s privacy act requires appellate courts to review de novo trial court decisions that a conversation was not private.  In a win for the amicus ACLU, the court emphasized that Washington’s statutory privacy protections trump law enforcement expediency.
Continue Reading Even Creeps Have a Right to Privacy: Appellate Courts Must Decide For Themselves Whether Conversations Admitted into a Criminal Trial Were Private or Not

In In Re Personal Restraint of Stockwell, the Supreme Court unanimously (7 judges, with 2 concurring) determined that an involuntary guilty plea may only be overturned on collateral attack if the petitioner shows actual and substantial prejudice from the circumstances surrounding the plea.  This decision is the latest in the Court’s self-described “course correction” towards a more stringent standard for granting relief after convictions have been finalized.  While concurring, Justice Gordon McCloud, joined by Justice Stephens, wrote separately to complain that the majority defined too stringently the prejudice required to prevail on personal restraint petition
Continue Reading Does the Right to Counsel for Personal Restraint Petitions Mean Anything?

State of Washington v. Bao Dinh Dang [Wash. Sup. Ct. No. 87726-2]

The Washington Supreme Court issued a unanimous opinion that held that persons acquitted of a crime by reason of insanity and granted conditional release under medical supervision may only have their conditional release terminated if the court determines they are dangerous.  Without a dangerousness finding, a court may not commit an acquitted person into a mental health facility solely on the basis that the person is not abiding by the terms and conditions of release.  This should be a welcome decision for mental health advocates seeking to erode the assumption that the mentally ill are inherently dangerous or violent.Continue Reading WASHINGTON SUPREME COURT REQUIRES INDIVIDUALS TO BE FOUND DANGEROUS BEFORE THEY CAN BE INVOLUNTARILY COMMITTED, EVEN IF THEY HAVE BEEN FOUND NOT GUILTY BY REASON OF INSANITY

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

At issue in State v. Dye (PDF) was whether a criminal defendant is denied a fair trial by allowing a developmentally disabled victim to testify with the assistance of a comfort dog.  Such trial management decisions are reviewed for abuse of discretion.  Based on the evidence presented to the trial court at a hearing on the special dispensation request, the Washington Supreme Court concluded, there was no abuse of discretion.
Continue Reading Anxious Trial Witness Permitted to Testify in Presence of Comfort Dog

In State v. Lynch, the Washington State Supreme Court confirmed that a trial court’s inclusion of an affirmative defense instruction upon an unwilling defendant violates the defendant’s Sixth Amendment rights in criminal prosecutions.
Continue Reading State Supreme Court Further Clarifies Distinction Between Casting Doubt on Elements of Charged Crimes and Affirmative Defenses

The Washington Court of Appeals recently shed light on the reach of Washington’s Long-Arm Statute in divorce proceedings involving a long-distance marriage. In Oytan v. David-Oytan (PDF), the court addressed whether the responding party in dissolution, who has never lived full-time in Washington, can nonetheless be said to have “liv[ed] in a marital relationship within this state” and thus fall within the reach of Washington’s Long-Arm Statute? Applying the interpretive principle that different statutory terms must be presumed to have different meaning, the court ruled that the Long-Arm Statute clause “living in a marital relationship within this state” does not have the same meaning as “resident of the state.” Thus, the court ruled, full-time past residence is not required for personal jurisdiction to exist. Rather, whether personal jurisdiction exists must be considered in light of the totality of the circumstances surrounding the marriage whether the party had sufficient minimum contacts with the state.
Continue Reading Personal Jurisdiction in Long-Distance Marriage Dissolution: Past Full-Time Residency Not Required Says Washington Court of Appeals

Via my colleague Jennie Bricker.

A registered student organization of Oregon State University published a conservative monthly newspaper, the Liberty, as an alternative to the well-established, traditional paper, the Daily Barometer. Asserting enforcement of an unwritten policy governing placement of newsbins on campus, OSU officials removed the Liberty’s distribution bins from seven campus locations—but left