Zuanich Law Newsletter
Episode #35: The Stay Home Episode
March 24, 2020
I have good news to report.
After a long and spirited phone call with the governor and his staff, I have convinced Governor Inslee to designate me as an “essential critical infrastructure worker,” which will allow the Zuanich Law Newsletter to continue unimpeded over the next two weeks.
Also, if need be, I will be given special permission to leave the home to conduct “vital and necessary research to facilitate the widest dissemination” of this Newsletter to the legal public.
Please see the attached link for a full transcription of my call with Governor Inslee.
State v. Whitaker
Washington Supreme Court
March 19, 2020
Duress / Murder
Facts: The facts are pretty irrelevant, other than to note that Whitaker committed a brutal murder. The State charged him with first degree aggravated murder predicated on robbery and kidnapping. Whitaker requested jury instruction on duress. Trial court denied. Jury convicted Whitaker of aggravated murder with kidnapping allegation.
Holding: Conviction affirmed. Duress defense not available when defendant charged with murder, manslaughter, or homicide by abuse (RCW 9A.16.060). Whitaker, in effect, argued, that because kidnapping was an aggravating factor in the murder charge that it actually functioned as a charged crime in this context, and therefore the duress defense should be available. WSC majority shot this argument down.
My take: Interesting opinion. The concurrence disagreed with the majority’s blanket analysis, arguing that duress could be available for an aggravated murder charge, because in order to find a defendant guilty of aggravated murder by kidnapping, a jury has to find that there is a kidnapping, which therefore makes the aggravating factor like a crime. But, regardless, Whitaker didn’t prove it.
State v. Omar
Court of Appeals (Division One)
March 23, 2020
GR 37 / Peremptory Challenge
Facts: Omar (on trial for robbery) tried to exercise peremptory challenge against Juror 16, who appeared to be of Asian descent. Juror 16 said previously worked at bank, and person had robbed bank while she was working there.
Asked whether she could be fair, Juror 16 said: “I don’t know … I’ve never been in this situation, so I’m not sure.” Omar didn’t follow up on this line of questioning. Omar ultimately argued that “just didn’t like some of [juror’s] responses.” Court denied request.
Holding: Conviction affirmed. Trial judge properly denied challenge. In short, Omar provided “nebulous” and “vague” and “unsubstantiated” reasons for challenge, so reasonable observer could think race was a factor. COA made some more general rulings about how to handle GR 37 cases:
1. Appeals court reviews trial court’s application of GR 37 de novo (because GR 37 provides no guidance as to standard of review)
2. Challenges based on a juror’s so-called “demeanor” suggest that improper discrimination is at play
My take: Interestingly, GR 37 used against the defendant, whereas to date most cases are used against the State. Proves that the courts are not playing favorites when it comes to this rule. Good analysis, especially for judges and pro tem judges, for how a trial court show go through the factors to make a decision.
Quarantine Boredom Setting In??? Check out past episodes.
About Us: Zuanich Law focuses on criminal appeals, DOL appeals, and post-conviction relief, including expunging / vacating / sealing criminal records.
We also handle civil appeals, family law appeals, personal injury law, business litigation, and general civil litigation, including contract disputes, probate, and a lot of other civil stuff that may be dangerous and boring to hear while operating heavy machinery.
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