By Sarah Glorian and Jason Quackenbush
Due to funding restrictions, Northwest Justice Project is not permitted to provide criminal defense representation. The Sixth Amendment Right to Counsel provides individuals accused of committing a crime with a public defender if they cannot afford to hire an attorney.
In late 2016, Northwest Justice Project began receiving funding to assist crime victims with civil legal issues collaterally connected to the crime. For example, we can assist a domestic violence victim with family law, defend a consumer collection case filed for a debt an identity theft victim did not incur, assist in truancy or school discipline cases involving a student who is a victim of bullying.
In January 2017, my colleague, Jason Quackenbush, was hired to work almost exclusively with crime victims. As I have done in the past, I sporadically invite my colleagues to submit guest columns on topics that are more directly connected to their advocacy, like this one written by Jason:
In following the case discussed in the Aug. 28, Daily World article, “Judge Kahler Amends Ruling in Gusman Case,” it is a useful window into the criminal justice system. Even though I do not appear in criminal cases, I watch cases like Gusman carefully to stay familiar with what my clients see when they go to the courthouse. In that context, the process resulted in the court amending Mr. Gusman’s conviction from unlawful imprisonment to second degree attempted kidnapping, demonstrating clearly to me what our system of justice looks like when it works as it is intended.
Superior Court judges have significant power. They decide difficult and complex cases resulting in people losing their homes, their children and financial security. In criminal cases, they may lose their liberty (and even life, in death penalty cases). Because we give the women and men elevated to the bench such broad authority, it is crucial those who wield it keep an open mind, remain humble, and remember we are all fallible. Our system of justice, when it works properly, contains within it mechanisms to help the parties and the court navigate.
Most people have probably heard of taking an appeal from a trial court ruling. In an appeal, a party who thinks the judge decided their case wrongly asks the appellate court to change the trial judge’s ruling. A less commonly used mechanism is when a court issues a preliminary or proposed ruling, typically presented orally from the bench, prior to the decision being reduced to writing and signed as a final order.
This is what occurred in the Gusman case — providing an opportunity for the prosecutor, Katie Svoboda, to file a motion to modify the initial ruling. The judge, Ray Kahler, reviewed the case and found there was sufficient evidence to amend his ruling and convict Gusman of second-degree attempted kidnapping. This outcome demonstrates what an important tool this initial ruling served in the hands of a judicial officer with the modesty and grace to use it.
As an attorney, I find when a judge provides an initial ruling, it helps me focus my argument on what the judge has identified as important issues and provide my legal analysis of those issues. More importantly, it gives the judge an opportunity to confirm his or her own analysis before entering a final order. I suspect most litigators have at least one story about a judge who appeared to know he or she made a mistake, yet refused, perhaps due to hubris, to correct the error—resulting in sometimes serious and certainly adverse consequences to a party in the case.
Where an appeal is permissible, the law requires an appellate court to be deferential to trial judges’ factual findings. Appellate judges are not in the courtroom listening to witness testimony, watching a witness’s demeanor, body language or emotion, which informs how a judge weighs each piece of evidence, testimony, credibility, etc., at trial. An appellate court, for this reason, will only reverse a trial court if it finds there was “abuse of discretion” as to the factual findings, or an error in the interpretation of the law. Most mistakes made by trial judges will not result in “reversible error” — even if in hindsight, most believe an error was made. When this happens, it shakes our faith in the courts to deliver the “justice for all” we are taught to expect starting back when we learned the Pledge of Allegiance.
The State v. Gusman verdict demonstrates the justice in motion, for which this column is written.
By issuing a preliminary or initial ruling, the court permitted the parties time to consider and respond. As a result, the court was able to demonstrate the humility and wisdom to review the case and amend his analysis and ruling. The phrase “you can’t please everyone” is ever present in the practice of law. The result in this case is likely still not what everyone might have wanted. However, after a verdict is issued, life goes on and everyone involved — victim, perpetrator, and the community as well — must figure out how to live with it. That is the reason why what happened in this case is worth noting. Our judicial institution, even with all its pitfalls and complicated procedures, has ways to help us navigate this process.
To find out if you are eligible for Northwest Justice Project services:
For cases including youth (Individualized Education Program and school discipline issues), debt collection cases and tenant evictions, please call for a local intake appointment at (360) 533-2282 or toll free (866) 402-5293. No walk-ins, please.
For all other legal issues, please call our toll-free intake and referral hotline commonly known as “CLEAR” (Coordinated Legal Education Advice and Referral) at 1-888-201-1014, Mondays through Fridays 9:10 a.m. to 12:25 p.m. If you are a senior, 60 and over, please call 1-888-387-7111; you may be eligible regardless of income. Language interpreters are available. You can also complete an application for services at nwjustice.org/get-legal-help. Be sure to also check out our law library at: www.washingtonlawhelp.org.