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Recording live from FYP Studios, east and west. Transmitting across the internet. This is episode 224 of Registry Matters. Good evening, sir. How are you?
Doing awesome. It’s a nice comfortable 90 degrees here right at the moment.
Just 90°? Ha. Let’s not dilly dally for too long. We should dive right in. Tell us, what do we have this evening? Because I think we’re gonna have like a mountain of content, and we need to just cut to the chase and go for it.
Well, we’re gonna have a deep analysis of a Supreme Court decision from the state of Washington that deals with strings and entrapments, and we’ve got a subject matter expert here.
Is that stings like the band “The Police” Sting?
It’s like those undercover operations where people pose as something they’re not. (Andy: I see). And we’ve got a couple of questions, I think; or at least one maybe. I don’t even remember. But we’re doing a Registry Matters Patron extra. We’re gonna be talking about the Supreme Court. So it’s gonna be a great series of events unfolding tonight at FYP Education.
Fantastic. Let’s dive right into this letter, and then we’ll head over to our special guest that we have. Says to NARSOL, says “In April of 2007, I was sentenced to 60 years, with 45 suspended for attempted stuff with without consent. On November 14th, 2021, I was finally released from prison, but was subsequently arrested 45 days later on December 29th, for allegedly violating the conditions of my suspended sentence. On February 28th, 2022, I went before a judge and was sentenced to the remainder of my suspended time. All 45 years.” That is ridiculous, Larry. “I was also given a 15-year parole restriction.” Good grief. “My offense? I possessed a smartphone and a photo of a topless 23-year-old Instagram model. That’s it. This ridiculous outcome was earth shattering to me, but it doesn’t come as a surprise. Montana’s judicial system, like most places, loves to give out over the top sentences to those convicted of PFR-type crimes. I chose to write this article to implore everyone who was on probation or parole to educate themselves with regards to the state’s laws. As it turns out, what Montana did to me is nothing short of illegal. In 2017, Montana revised its approach to probation and parole violations and adopted something called the Montana Incentives and Intervention Grid (MIIG), a Department of Corrections policy guiding community supervision of PFRs and standardizing responses to violations. The policy effectively split probation and parole violations into either compliance or noncompliance violations. Only five specific violations qualify as noncompliance. These include absconding, failure to enroll or complete PFR treatment, possession of a firearm, harassing or threatening a victim, or committing a new crime. Any violation not categorized as noncompliance violation is instead a compliance violation. When a PFR commits a compliance violation, probation officers must consult the MIIG to determine an appropriate intervention response. A district court cannot revoke a suspended sentence for compliance violation unless it finds the probation officer has exhausted the MIIG, they have documented such efforts, or that the offender’s conduct indicates that he or she will not be responsive to further efforts under the MIIG. Needless to say, I was guilty of a compliance violation. The MIIG was not exhausted on me, and there are no documented efforts to do so. I am currently appealing my sentence and have no doubt I will be set free sometime in the near future. Keep fighting and refuse to give up my friends. Thanks to NARSOL for everything you do and for sharing my story.” 45 years, Larry, oh my Gosh. That’s a long time.
Well, we’re going to actually publish this in the newsletter. Appreciate the submission. And I may go beyond that I may take a little deeper look into it to see if his appeal is something that we can undertake as a collective cause. If what he is saying is true, then this would be something that would expand beyond the reach of one particular individual. It would be an impactful challenge. So therefore, I’m going to look a little deeper in it. And I appreciate the submission. Hopefully we can get it in this upcoming issue of the newsletter if it’s not too full already.
I mean, we talked about this when like my friend that got locked up last summer, whatever. He was in possession of a smartphone, that part was okay. But he had a whole bunch of images, not new-crime-kind-of images, but just compliance-kind-of-images. And they revoked them for the two years, this guy got revoked for like four decades.
Well, there’s a lot we don’t know here. If I were in a position where he was sitting in the office here and we were trying to figure out how to proceed as a representation with representation, I would be looking at a lot of factors that I don’t know here. This could be a very high-profile case that he’s involved in in Montana. It could be that the judge told him that I have no tolerance for any type of violation. There’s a zero-tolerance policy with you because you’re lucky you didn’t get the whole amount to begin with. And it could be that the probation people felt that he did not get enough time to begin with, that all that time should not have been suspended, and they were just looking for an opportunity. So therefore, rather than giving him the benefit of the doubt under MIIG, they are probably saying that he’s just not receptive, not amenable to rehabilitation, and that the best place for him is to be in the prison. Now, what we don’t know also is how much of that time he’ll actually serve. You know, what the good time reductions will be, if he will actually die in prison, or if he would get out assuming- he assumes he’ll win on appeal. I’m always a lot less optimistic about appeals, because I know how horrible the court system is. But if he did win his appeal, that’d be fabulous. And that’s what I’m going to look into to see if this is something viable that we can get involved with as a cause of action that would help many.
Also in there, though, I wanted to certainly point out, it says “I chose to write this article to implore everyone who was on probation or parole to educate themselves with regards to their state’s laws.” Without a frickin’ doubt. Know what you are allowed and not allowed to do so that it doesn’t come as a surprise to you when you do have some, whatever that is- he says a 23 old Instagram model, whatever, that you don’t end up shocked that this happens to you, because I’m pretty sure that his conditioned said something to the effect of not being allowed to have any sort of content like that.
Well, and there again, some of that would be unconstitutional. You’re going to have to allow a person to have some stimuli. You can’t ask a human being not to be sexually aroused at any point in their life. That’s just ridiculous. But attorneys find it very uncomfortable to make those arguments. You’re dealing with judges and decorum of the courtroom. And I know that all sorts of graphic things are described in court, so people don’t need to send an email. I’ve been in courtrooms a long, long time. But it’s just very uncomfortable with a taboo subject of sex. You know, to say, “Your Honor, I just want to remind the court that my client has the right to masturbate.” I mean, that’s just a very difficult thing for the average attorney to say. “It is not realistic, Your Honor for my client not to have sexual urges. I mean, you have them, don’t you Your Honor?” I mean, nobody’s gonna say that.
Yeah. I think you asked the attorney in South Georgia to try and have those dialogues, and it didn’t go anywhere.
Nope, it’s not an easy thing for an attorney to do. They have fear, because the decorum of the courtroom and the tolerances that have been established through years and years and generations of what’s acceptable. And talking along that line is not something they’ve been trained to do, and they don’t feel comfortable doing it.
All right, then anything. So you’re going to follow up and try and see if there’s something that our people, we people, can get into?
I am indeed. I’m going to contact this person on behalf of the organization and see if he can provide additional information in terms of his appellate lawyer and the posture of the appeal and see if there’s anything that we could contribute.
Someone in chat says Better Call Saul. Are you familiar with that Larry? Better Call Saul.
I don’t watch the program, but I’ve heard of it.
Okay, good. At least you’ve heard of it, because I say so many things and you are like, I have no idea what you’re talking about. But at least you’ve heard of it. That’s good. That’s good.
Yes. I’ve heard of it. It’s big news around the state.
Yeah, that would be, because that takes place in your neck of the woods there.
Yes, it does.
Well, very good. Let me introduce our guest, Larry. We’ll do a quick little intro and then we will continue on with the fun, right?
I hope so.
Kathleen, welcome back. You were here six months ago? I don’t even remember what episode it was. (Kathleen: No clue.) No clue. 180? Can you give me like the quick elevator pitch. Hi, Kathleen. Welcome back. You’re Kathleen. Somewhere around 180. But the elevator pitch of who you are.
Elevator pitch. Yes. My name is Kathleen Hambrick. I am co-founder of a group that started in- well, we’re out of Washington State, which is a group of families of people who were caught in proactive police sex stings. And we are trying to bring awareness to the tactics used, to the fact that they have a huge financial incentive to prosecute and run these, and the way they don’t follow their own rules, and just a plethora of injustices that occurred throughout this practice.
Gotcha. Okay, well, good. Um, yeah, Kathleen, can you do one thing? I don’t want to have you leave the video. Um, your sound is a little bit choppy. But I don’t know if there’s anything you can do. Just a tad choppy, but it could be internet related too. Anywho. So, Larry, we have this case from Washington Supreme Court that involves a sting operation. For the life of me, as always, I cannot figure out why you don’t understand that this class of entrapment. To help you, I invited a special guest to help us answer these questions, and explain the nuances of how entrapment works. Are you people good with that?
I think so. I’m gonna do my best to learn.
All right. So this is the case of the State of Washington versus Douglas Arbogast. According to the court’s opinion, police officers posted on an advertisement online and posed as a mother seeking a person to teach her two children about sex. Arbogast answered the ad, exchanged message with the undercover officers and was later arrested. At trial, Arbogast sought to present the affirmative defense of entrapment and his lack of criminal convictions as evidence that he was not predisposed to commit the charged crimes of attempted child rape. The Trial Court declined to allow evidence of his lack of criminal record or instruct the jury on entrapment. Arbogast was convicted, a divided panel of the Court of Appeals reversed and remanded the case to a new trial. And I’m presuming that the state asked for review of the appellate court’s decision. Is that right?
That is correct. The state never likes to lose. So they wanted to hear it from the top court.
Okay. And the Washington Supreme Court affirmed the lower court’s decision. And so that’s what we’re going to get into tonight. And what does that mean?
Well, it means that Arbogast is entitled to a new trial, and that the trial court will have to issue the entrapment instruction to the jurywithout Mr. Arbogast being required to prove anything.
Alright, that confuses me. The opinion states that the entrapment is an affirmative defense. What is an affirmative defense, then?
That’s a great question. An affirmative defense is where the accused concedes the underlying accusations and offers the defense to avoid criminal responsibility. For example, self-defense is an affirmative defense. A person attacks another and the person who was attacked pulls a weapon and kills the attacker. It would be like the George Zimmerman situation. He affirmed that he killed the person, but asserted that he felt that he would have been killed himself if he didn’t shoot. The jury agreed that his actions were reasonable and view of the totality of the circumstances. Mr. Zimmerman bore the burden of proving that his actions were those of a reasonable person. Washington, prior to this decision, had chosen to require that the accused bear the burden of proving that they were not predisposed to commit the crime before the jury could be instructed on entrapment. So they shifted the burden, and they made it an affirmative defense rather than just a defense. And that’s what makes this decision so spectacular is because now they don’t have to make that proof.
And then to continue, the court stated “We hold that to obtain an entrapment instruction, defendants must make a prima facie…” Explain that word, Larry, real quick.
prima facie. It’s the threshold showing that there’s a minimal amount of evidence to justify it so you’re not wasting the court’s time.
Okay, so “…make a prima facie showing that the crime originated in the mind of the police, or an informant and the defendant is induced to commit a crime that he or she was not predisposed to commit. The measure of a prima facie showing is whether the evidence offered, considering a light most favorable to the defendant, is sufficient to permit a reasonable juror to find entrapment by a preponderance of the evidence. Here, Arbogast offered sufficient evidence to justify an instruction. Whether he can establish the defense is ultimately a decision for the jury.” I’m presuming that you have read this case. Can he meet that burden Larry?
Oh, well, it’s a difficult offense. It really is a difficult offense. Juries really struggle with entrapment. And they’re really hesitant, but it does occasionally work. But I hate to lay odds on this case. But if you just asked me statistically, it’s a very, very long shot to have a successful defense of entrapment.
And then to continue “Arbogast responded to an online ad posted by Brandi, an undercover Washington state patrol officer. The ad stated more. Mommy likes to watch—young family fun—420 friendly—w4m (Rich$land) Mommy luvs to watch family fun time. Looking for that special someone to play with. 100% I know this is a long shot but I have been looking for this for a long item [sic] and haven’t had any luck. looking for something real and taboo. If this is still up then I am still looking. send me your name and your favorite color so I know you are not a bot. I like to watch.” I’m not reading these things, Larry. Can someone explain the meaning of this? Kathleen? I think this is your turn. I don’t know what these terms mean.
It is my turn. And, you know, most of the ads, they have these landmines in them that a lot of the people that are answering these really have no idea what those phrases mean. Now, this particular gentleman is a 70-year-old man. And I would be surprised if he understood what was being suggested here. And I think that the reason why it’s suggested- well, I know- is that the police can then say, Oh, you answered this at it. And this means this, but whether the man understood it to begin with is unclear and probably doubtful. I happen to know that this gentleman was into photography. And so when you’re talking about… and you could say that I’m being naive, or that I’m giving him excuses, or that I’m giving him outs. But the reality is not everybody puts these things together. “Mommy likes to watch.” You know, so do photographers like to watch. They don’t like to watch necessarily sex with children. But she didn’t say that. She left that open ended, and obviously, on purpose. I think it’s very interesting, especially in this ad from Arbogast that he says “ddlg” and then they follow it with- and I say ‘he’ because I know it’s a man who made it, but supposedly it’s a woman- they follow that with “daddy/daughter.” “ddlg” does not mean daddy/daughter. So they’re trying to imply incest off of DDLG, which is a dominatrix, little girl, or submissive person, which is mixing and trying to just really confuse people. The one person in the state of Washington who did actually win a case in a sting was because of the DDLG misuse. And he actually was into DDLG, the real DDLG, and not daddy/daughter or family incest or anything like that. And he was acquitted of his charges. So that’s interesting.
That is crazy. Go ahead Larry.
Kathleen, I agree with you. I mean, I’m a good 100 years older than he is, but I have no idea what any of this means. I would be totally lost.
Right. And I think that most people are when they’re reading them, but the police put it in there so that they can pretend that person knew what it meant.
Yeah, like you’d have to get out Urban Dictionary someone suggested to figure out what some of these terms would mean. Okay, so to move along, then “Mr. Arbogast communicated to Brandi that he was interested in her, not the children. She responded as follows. Brandi replied that she is not looking for a partner for herself, but for her children.” This is ridiculous. “After texting that he had not tried young kids, Arbogast said he had looked at young girls and would like to try a young lady once. Arbogast then texted he did not think he could devote the time necessary for this training for the children and asked to meet with Brandi publicly for coffee to discuss it further. Brandi reaffirmed that she’s not looking for a partner for herself, and that she homeschooled the children, allowing her to keep their secrets.” This sounds to me like the idea that the crime originated with the police. Kathleen?
Clearly and obviously it did, as it does in all of these things. But something very interesting again about this case is that the man tried to meet in a platonic setting to gauge whether this was really a woman looking- what she was really looking for. Is she into roleplay? Is she real? Is it an entire catfish scenario? And so, what happens is so many of these people in this stings, they try to do this, but the police refuse because, of course, they would be found out. So they force the person down the single path of either come and meet me under the premise that you’re coming here just to have sex, or walk away from the opportunity to have sex with potentially a consenting adult, which is why the men are there in the first place. So it’s very difficult for them to walk away. So a lot of men just go for that reason, to find out what it is. But unfortunately, as Larry will tell you, that is the trap. So.
I don’t see how you end up being guilty of a crime- you’re not in the act of doing the thing, you just became present of an idea of something.
Right. And I think it’s very telling to be that the idea of what that is, isn’t your idea. It’s not your fantasy to have sex with the kids. It’s that other person’s fantasy. And so you’re not even there for your own idea, which is lost on a lot of people.
All right, then the opinion goes on with the narrative, says ““Brandi and Arbogast then exchanged photos. Arbogast texted that he wanted to give Brandi “TLC [(tender loving care)].” Brandi answered that she “could get involved with [Arbogast] and Jake [(her son)] after a few good sessions of you two but [was] not into it” and asked Arbogast to “change [her] mind about us hooking up?” In response, Arbogast stated, “OK you mean I need to groom the boy alone? What about your princess[?]” and “Never have done kids before.” Larry, it amazes me that you are in denial about this. It’s clear to anyone that has an open mind that Mr. Arbogast was trying to meet the mother and had no interest in minors. What is wrong with you people?
I’m not sure that anything’s wrong with me. If you read further, it goes on to say, after exchanging another series of texts discussing how frequently Arbogast would meet with the children, he texted, we should meet and try it out. I’m assuming that was the “it” that Brandi had suggested. Brandi outlined the rules saying that there could be no pain, no anal penetration and condoms would be required. He would stop when asked and he cannot get the doctor practice. The rules also required Arbogast to come to her home when he arrived, and “we’ll all get naked.” Arbogast agreed, stating that he was sterile and looking for oral and regular sex. Minutes later, Arbogast repeated that he was interested in Brandi romantically, but she clarified that she would not be involved. And therein lies the problem. Mr. Arbogast agreed to have sex with a minor and then travel to the destination. At any point, he could have chosen to disengage and renounce the notion completely. He did not. When this case goes to the jury again with the entrapment instruction, it will depend on the jurors and their outlook on life. It would be easy for them to conclude that he had ample time to thoroughly evaluate the unlawful behavior that he expressed a willingness to engage in. It would also be reasonable for a jury to conclude that he was a lonely man with no criminal history who fell victim to an overzealous law enforcement operation. Only time will tell.
Okay, so Larry, in pretrial motions, Arbogast sought to admit the results of his polygraph on the question of whether he had ever tried to engage in sexual contact with children and to call the officer who administered the test as an expert witness as relevant to entrapment. Alternatively, Arbogast argued the polygraph should be admitted to determine only whether an entrapment instruction was allowed. The motions were denied because the state was unwilling to stipulate to the admissibility of the polygraph. Arbogast also sought a jury instruction on entrapment. The court reserved that motion for resolution in trial. Were all of his pretrial motions denied?
Yes, they were. In its own pretrial motions, the state sought to prohibit any mention of Arbogast’s lack of criminal history. Of course they would do that. The court agreed, finding it was premature until Arbogast presented evidence of government inducement or luring, another requirement of the entrapment defense in Washington.
And then at the conclusion of its case, the state argued an entrapment instruction was not justified because Arbogast failed to show government inducement and the lack of a predisposition by a preponderance of the evidence. The court agreed, concluding that there was some evidence to support lowering, but no more than normal. The court therefore denied the entrapment instruction and precluded evidence showing the absence of a criminal record to show lack of predisposition. It seems to me that the evidence did show that there was quite a bit of inducement by the law enforcement apparatus, as you call it, Larry. What am I missing?
You aren’t missing anything. The appellate court agreed with Arbogast and affirmed- the Supreme Court agreed with the Court of Appeals that there was inducement. And they affirmed the lower courts reversal of the trial judge. So two separate courts that are above the trial judge have seen it differently. So, it’s pretty compelling. I mean, you’re seeing exactly what two separate tribunals saw, and this was the full court sitting as one. So yes, it was. It was undeniable that there was a lot of inducement there.
Okay, so then, before we get into discussion with Kathleen, I want to articulate the law as it currently exists in Washington. And Larry, do you say Washington or Warshington?
I say Washington, but I do hear people Put an ‘R’ in the state quite frequently. And Kathleen?
No, I don’t “warsh” my hair.
Okay. All right. I was just curious, because I grew up saying Warshington and someone was like, Man, you say, Warshington? I was like, what? That’s how we say it. But anyways, okay, so in Washington in 1975, state lawmakers codified entrapment in statute, providing that “in any prosecution for a crime, it is a defense that the criminal design originated in the mind of law enforcement officials,” that sounds like that once checked, “or any person acting under their direction, and the actor was lured or induced to commit a crime which the actor had not otherwise intended to commit,” I think that also gets checked. And then “the defense of entrapment is not established by a showing only that law enforcement officials merely afforded the actor an opportunity to commit the crime.” I guess it would be like a drug dealer, a cop just standing there on the corner waiting for someone to show up. I guess it would be something like that example, Larry?
That would be correct. Predisposition is readily apparent in many crimes, where it’s like, you just happen to stumble upon a cop. In the old days- I don’t know how much they do the decoys with the stings of the prostitutes working on the street, because of the internet era, a lot of that stuff is moved off of the streets. But there would be a cute young officer, usually a female, occasional male, but usually a cute woman, and they would engage with a person and they were predisposed. They were in a known prostitution zone. They ask, you know, can we hook up? And the officer goes along with the conversation. And then ultimately, there was an agreement to exchange sex for money. And then they don’t actually have to go through with the sex, but they there’s an agreement at the meeting of the minds that they’re going to commit a criminal act. Well, the police did not cause that. They just happened to be there. And you happened to be looking for sex. You’re clearly predisposed. But in this particular case, there’s very little evidence of any predisposition. But where the trouble lies is that people who don’t work in the law are not as familiar with the nuances of the very brief time that it takes to form an intent. For example, in a first-degree murder case, normally premeditation is required. Well, you would, as a as an average citizen, you would think of premeditation as being something that’s worked on for weeks, certainly days and hours, but probably for a period of time, if you’re going to premeditated kill somebody that’s not spontaneous. But when you’re on a jury, which I have been recently, the instruction you get is completely different. They say that premeditation doesn’t require a particular amount of time, it just requires making that choice among a plethora of choices or a variety of options that you have. And you could have chosen a different course of action. So that’s what’s going to be the difficulty with these entrapment offenses is because this man had- I don’t know how far he traveled- but he had a fair amount of time to think and cogitate, contemplate and think about it, and to disengage and renounce his intention where he had been lured and cajoled into agreeing to have sex with children because he was trying to get to the mother. And he finally says, I’ll do it. But it’s not like he didn’t have a lot of time. And if I’m the prosecutor, and I tell you, I’ve never been a prosecutor. But if I’m a prosecutor, I’m gonna think of that, and that’s going to be an argument I’m gonna make. I’m gonna say, Well, you know, He drove 175 miles and in Washington, that takes about two and a half hours or whatever it takes from the route, and he had an awful lot of time to contemplate about what he had agreed to do. Clearly, he’s predisposed to do this. That’s the argument I can make. If I can think of that, they can certainly think of that. That’s exactly the argument they will make.
Um, so can you dig in Larry for just a second that I just read those things on the statute, and it, for my little pea brain, it seems like they checked those couple boxes as being an entrapmenter. I’m sure that’s not the right word to use, but they lured him, they designed the crime, and they lured him into a situation that he was not otherwise predisposed to do.
That is absolutely true. And a right jury- the makeup of the jury is gonna be very critical. This is going to be a case where if you were to come to me and say, I want to put on a entrapment defense, I’m going to tell you, you need to give me about $10,000 for jury consultants, because I’ve got to figure out how to do jury selection to find the best juror for your case that will keep an open mind about this. Of course, you can pretty well exclude most people that have any type of law enforcement background, however tangential it may be because they’re gonna believe that the police do nothing wrong, and they’re keeping us safe from the bad guys. So they’re gonna have no desire to hear this as a defense. But clearly, there are boxes checked. But again, you’ve got to overcome whatever Washington law says. I’m not an expert there, but you’re gonna have to overcome the time that he had to change his mind when he made the trip. They are going to hammer that and they’re going to hammer it, and they’re going to hammer it. That’s what they’re going to do. They’re gonna say he’s got seventy years of life experience. He had plenty of time, he agreed to have sex with this child to get what he wanted. And in some of the text, there’s even a suggestion that when he said that he had thought about a girl, remember that? That’s his text, not my words. They’re gonna say that that shows some predisposition. That’s what they’re going to say. So you’re gonna have to overcome that. Kathleen, go ahead.
No, I was just… You mentioned that he thought about a girl. And I was saying, “young lady.” He thought about a young lady, which is another, you know, he doesn’t actually ever say, “children”, or “child.” I would just point out that, you know, it is splitting hairs. And I don’t want to imply that it’s not and it’s a very fine line. But your argument, Larry, about, you know, he agreed to have sex with the children. I don’t agree that he said he agreed to have sex with children. I don’t think he ever did. And I think the only reason he drove there was to find out if it was real or not, personally. And I think that’s the only reason a lot of these guys drive there, is to find out if it’s real or not. And whatever I say before I know if it’s real or not, in my mind, not the police’s mind, not the prosecution’s and not the law’s, but as individual citizens, whatever I say until I know if you’re real or not, doesn’t count to me, because we’re not apples to apples at that point. You haven’t shown me who you really are. And anyways, that’s my opinion on that. But I did want to ask Larry if you want to respond to any of the points that I sent you? (Andy: We’re just about to get there.) That was your cue, Andy.
Oh my Gosh, that was my cue.
Should I repeat it? (Andy: No.)
MacAuthur Movie Clip
I fail to see what purpose that would serve.
There it is. It’ll get it fixed in post. That was my cue. Sorry. Got too many other things I’m worried about for me to follow cues like that.
I did my best Larry. I did my best. Anyway.
If I had your video, I could have like seen you wink at me or something. Jeepers. But no, I don’t have those either.
You probably would have.
I’m not sure. I’m not sure that it’s making any difference. I thought it was making a difference. You might want to turn it back on because I’m still hearing some chops. So go ahead.
Oh, no, you don’t need to see me. I’m fine with not being seen. In fact, I probably talk better without seeing my picture up there. It’s all good. Yeah, so there’s another bunch of things that happened in the state of Washington that led to this entrapment business, and the inability of us… When I was first brought into- when I was first brought into this arena, I was told by the attorneys that I interviewed that you cannot use the entrapment defense in the state of Washington. It’s not allowed. Which is very disconcerting to someone caught in one of these. The reasons would be that we had been told that it was already thrown out, that anything that you say to an undercover officer, even over the wires, is admissible, even though we all know that Bonnie Burkhardt has a book out about how that is not true. And, you know, nobody is of her caliber to fight that position in court. So I don’t know where that takes us. But whether it was true or not, we were told we could not fight that piece, that everything that you say, in these texts or on the phone, is admissible in court. So that’s already out there. We can’t get that thrown out. We’re also told by our lawyers and the state basically, that everything you see, everything that happens is seen in the light most favorable to the state. So here we are with this entrapment thing, and we’re not able to defend ourselves in any fashion. The fact that 95%- I think it’s 95%- No, it’s not 95. But anyways, the huge chunk of people that took a plea is because in the state of Washington, they made it impossible to make this defense. And so what, what Arbogast has overturned for us now is that it used to be that the lawyer- not the lawyer- the judge would decide whether or not they would allow the entrapment defense. Now, it has been switched to the jury gets to hear the entrapment defense, if you show- as you guys just went through- if you show even a little bit of this isn’t in his nature, you can show he has no criminal history. Now, none of that was allowed at all. And so, we really had no way to defend ourselves in these things at all in the state of Washington. So this is just a huge win for so many people. I can tell you that one juror is on record for having said they would have voted for entrapment, but they were not given the instruction, they were not allowed to get the instruction and they didn’t understand why they couldn’t get the instruction. They said it was clearly entrapment, but, based upon what they were allowed to choose, they had to go with guilty because they weren’t allowed to choose entrapment. Another juror had said that it was clearly entrapment. Of course, he was asked to leave the jury panel before the trial. A lot of people just instantly say… In fact, one of the other co-founders, Bruce Glandt, he’s been doing such great work with our legislation to try to fill these loopholes. He told the representative what had happened and the absolute first thing that the representative said was, “but that’s entrapment.” Yeah, we all know it is. We all know it is. Now give us a defense so we can make these things stop because they’re not helping anybody. They’re not helping a single child. They’re helping the polices’ pocketbook and prisons make money.
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Hey Larry, can we go back just a hair? What is the significance of the jury being given or not given instructions? Can you noodle into that for a minute?
Sure. She did a good job of explaining it. This was a defense that required proof by the accused. The accused should never have to prove anything. But the accused had to show by a fairly high standard- I forgot what it was in the opinion- that this jury deserved to hear this as an option. Now, it’s a much lower. The prima facie showing is basically just a threshold showing that there was some inducement. And you can’t just go in and argue entrapment when clearly there was none. But there was ample prima facie. There was well beyond that in this case. So, what we have now is that it’s a choice of the defense attorney to put forth the defense. Now that’s not going to up how often it works, because it doesn’t change anything other than the jury gets to consider it. But these affirmative defenses, which now they’ve changed it from being an affirmative defense, but affirmative defenses are even difficult. Zimmerman was one of the few that was able to succeed on his defense of saying self-defense. Killing someone in self-defense is a difficult showing to make. But yes, it is going to be an advantage. You are going to be able to go directly to the jury and say “Consider this. I don’t need the judge’s permission.”
Yeah, I would like to point out that a few times in the state of Washington over the last- I mean, we have 300 people who are entrapped in these things under this certain regime that took advantage of the loopholes. We’ve had five people successfully- and I’m not talking about the appeals like Arbogast is not one of them- five people who have successfully were allowed to say entrapment, and out of those five, two had significant, if not all… Okay, one person had full acquittal, the other person, they were not found guilty on the charge of rape, but communicating with a minor stuck. So, entrapment has been huge in these cases. Two out of five, is that going to hold? But that’s pretty good odds for what we’re facing. So, we’re all very excited.
But those cases would have been the ones that had the strongest evidence. This case has strong evidence. I’m disappointed that the trial court ruled that way. But those cases, being that the threshold was so high, they had a compelling case. They’re going to be people who are going to want to put on the defense just because they have no other defense. They’re going to want to put on the defense, and they’ll get to do that. That’s their prerogative to do that. But it’s gonna be a long shot for many cases, because I don’t think this guy is going to have an easy… You get me as a jury consultant- I’m not a consultant- But if you get me on a case, I’m gonna hire you a consultant, and we’re going to figure out how to cast this 70-year-old in the light most favorable to a receptive jury, because I only need one to hang you up. You need unanimity. And I’m going to find one juror, hopefully out of 12, that’ll stop this train from going down the tracks.
Absolutely. And we’re hopeful that at least, you know, some of these people… Additionally, having been told and on the record that they could not do the entrapment defense, it has a bunch of cases ready to be overturned now for that exact reason, I think. There was 18 cases that were tried in court. Now, there’s only been about 50 out of 300, about 50 people even dared to go to a trial at all, be it bench or jury. So 18 of those were denied entrapment defense, even able to bring it up at all. And so those are obviously going to be immediately appealed.
Well, in this particular instance, I don’t know the details of this, how much time did he get as his sentence?
90 months. What is that? 8 Years?
A little over eight years, eight and a half years. How much would he serve if that entire sentence were served?
Well, that’s kind of scary, but 10% of people with a sex offense conviction are allowed to get 10% off. But in reality, it doesn’t actually happen that way. Because this is an indeterminant sentencing scenario, they have to go in front of the board, and they don’t let you go in front of the board. So four months before you’re supposed to get out, that does not leave enough time for you to actually make a plan and get out assuming that they let you go. So theoretically, he would have had approximately a year off, but I’m sure that would not have happened anyway.
So he would have served essentially the entire sentence? (Kathleen: Yes.) And that’s just, to me, it’s so appalling, because if I’m a judge, and I’ve been somewhat objective- and now we’re assuming we’re getting a fairly accurate portrayal of this case- I couldn’t in good conscience do that to a person who had no prior criminal history. He’s a first-time offender. Even though the jury found him guilty, I get that. He’s a first-time offender. He’s a very reluctant first-time offender. He had no desire to be involved. Law enforcement took him down this path. Any judge should be able… I don’t know what kind of sentencing memo the lawyer wrote and prepared, but it doesn’t sound like it was terribly effective. So either we’ve got a horrible judge, or we have some horrible lawyering, because you should be able to mitigate a 70-year-old with no prior criminal history to less than 90 months as a first time offender. I mean, that’s appalling.
It’s pretty bad. And the state of Washington is very bad on all of these, and, you know, I don’t think it’s surprising that this was out of the State of Washington considering that they started, you know, this frenzy of harsh laws against people convicted of- I mean, we’re going back to the whole Adam Walsh and the Jacob… Oh my gosh. Anyways, didn’t that all start in Washington, I believe?
There is a lot of early history on the registry with Washington. I think after California in ’47, I think Washington was the first state to adopt the modern registry. What location in Washington does this case originate from? Do you remember?
Um, I don’t. I do know that there are a bunch from around the entire state, it’s not isolated at all to a specific area. Some places are harsher. Some places are less harsh. We’ve seen sentences anywhere from, I think the lowest was like a year to, well, a few people got life, but theoretically, they already had something. They had a disposition. But even people with zero criminal history got up to 10 years for this made-up crime by the police.
That was the point I was gonna make that, here, the State uses the- what is it called? ICAT? (Kathleen: ICAC.) ICAC. (Internet Crimes Against Children). Yes, they tend to set those up in the more conservative jurisdictions. And they do that because the sentencing practices in those jurisdictions are very harsh. So rather than putting them in Bernalillo or Santa Fe County, they take them to Lee County, or to Travis County, or to Curry County, because they’re going to get much harsher sentencing in those counties.
So the ICACs are, in the state of Washington- every state has an ICAC office. Many states have more than one. The ICAC office in the state of Washington is out of Seattle. ICAC. Internet Crimes Against Children. Someone asked in the text. In the State of Washington, it’s out of Seattle. So it is definitely tied to the metropolis. But they have task forces and smaller branches throughout the state. So, in fact, in Washington state, it’s the Washington State Patrol that does it. But the one that my son was caught in was out of Vancouver. Their Police Department ran one. A lot of the, you know, outside in rural areas will run their own. They have to all be affiliated. They have to all be trained, theoretically, although we find that don’t follow any of the rules. And nobody seems to care. But yeah, there it is.
What does this mean for your son?
For my son? Yeah. Well, our trial, our second trial, that’s really kind of a weird thing. For those of you who don’t know, my son was convicted in a bench trial. He served a year and a half, which at the time was the lowest possible, the lowest that anybody had been given. He got out. And eight months after he was released, won his appeal, which reversed the conviction. Even though he had already served all of his time, he was on probation for a year. Actually, he stayed on probation a little bit after the appeal was overturned just because they wouldn’t release him very quickly. Anyways, they recharged him, as they will undoubtably recharge [Arbogast]. In fact, I talked to Douglas Arbogast’s son, Jason, who said they haven’t recharged him, but they have said that they are going to. The recharged Jace, my son, and we are hoping that this will give them notice on all of these cases, including my own. There’s another woman whose son in our group is due to up next month before Jace. I hope, we’re hoping that this will give them notice that they’re not going to get… We’re turning to look at why the police are doing this. What are the police getting out of this? No children are saved and, guaranteed we’re pointing this out in court now. We weren’t allowed to before we weren’t allowed to question their tactics or why they were doing what they’re doing and we will be now. And so we’re hoping that they will soften their stance, and potentially on the people that won their appeal, give them a way out, because right now they’re just trying to… And I don’t know if you guys know, but in the state of Washington, it’s lifetime supervision for these people. Lifetime supervision. Registry is lifetime too. We’re not talking registry. Probation for life. Parole for life. I don’t know if this is across the country. Larry, do you know if a lot of states do this? But holy cow, my son was 20. They’re gonna watch him until he dies. What?? How is that even fiscally responsible?
It is not. And it’s not common. I mean, it does happen in other states, but we don’t have that. We have indeterminate, but it seldom results in a life sentence. But, you know, I thought Washington was the bastion of progressive thinking. It doesn’t seem like this is very progressive.
No, not on these crimes that fall under sex offender. I will say that Washington Voices, another group that, you know, there’s a lot of, like Texas Voices, blah, blah, blah. Washington Voices is, as well as CAGE, are on the subcommittees for the sex offender policy board. We’re trying to get rid of the lifetime probation. They’re doing some great work there. It’s Joanne Smieja, and Alex Mayo, shout out to them. And we are also looking at trying to make an alternative sentence for these crimes where there is no victim other than the person that they entrap. And I wanted to mention, the police- I believe this happened in Washington State because there is no… Many of the other states have a statute specific for Internet Crimes. Texas does. Florida does. You’re convicted of attempted luring of a child on the internet. Washington state has no statutes for that. So they actually are using, to prosecute these men, a statute from 1975. That is the attempted clause. The attempted rape clause is what they’re using from 1975. And in 1975, there was no way to attempt to rape a person remotely. But they don’t seem to care. They’re just using it because it’s on the books. So, you know, back then it was created in case somebody is trying to harm somebody, and somebody comes along and the rape didn’t occur. Well, you still want to give that person that had hands on the full weight of the law. Well, now they’re using it for non-contact. They’re really misusing the legislative relation. So the police, they found the loopholes and the perfect storm of situations to make these just horrific for individuals who aren’t trying to do this. But anyway, I did have a question for you, Larry.
What do you have?
Yeah, so in this opinion, it says, the opinion quotes, “In inducement, evidence may be based on persuasion, fraudulent representation, threats, coercion, harassment, promise of reward,” which part of sex with a woman isn’t? “pleas based on need and sympathy of friendship? All of those things can be used to show inducement or enticement by law enforcement towards this supposed person who ends up being the victim. But my question is, it seems to be at odds, to me, with the fact that we know that police can use trickery, or can pretend to be something they’re not. So are they allowed to or are they not allowed to? They’re allowed to, but we can show it? I don’t quite follow how those two can both be in the same bag,
You’re gonna have to put on the evidence of what they did. In his case, he’s got fairly consistent evidence of a continuation. I think the trial judge was just smoking some wacky weed to say it was not out of the ordinary. That’s a fairly egregious case, but you’re gonna be allowed to, and you’re gonna have to show evidence of what the inducement and all those words were, what happened throughout the exchange. But when you do that, as a prosecutor, they’re going to come back and say, “Your Honor, that is one thing there was discussion.” To be a fair prosecutor, I’m gonna say, “I’ll stipulate that those things did happen. But this gentleman had three hours of time before he drove. And he had ample time and ample life experience to rethink his position of coming in to have sex with this child.” And I’m going to use the term child, not minor, because that that elicits sympathy with the jury. That’s what he’s going to do. And that’s what the text transcription appears to suggest. He says he agreed to her terms. So that’s what the prosecution is likely to say in that case. I don’t know enough about your son’s case to know if there’s any parallels at all. I mean, was there a significant travel or was it right next door?
It was, I want to say it was maybe a half an hour. I mean, we were living in Portland at the time, and it was in Vancouver, Washington and the two cities are separated by a river. So it’s right next door.
Yes. Well, there’s all also a difference in life experience. (Kathleen: Huge. Yes.) A 20-year-old is not going to have the time and life experience to really reflect back on that. The defense attorney is going to use the age to try to get an advantage. As a prosecutor, I’m gonna do the same thing except for different reasons. I can be on either side of this issue and tell you what I would do. If I’m the prosecutor, I’m going to hammer his age. Like, “he’s a very intelligent man.” I mean, if he takes the stand, I’m gonna say, “Now, let’s talk a little bit about you. You were a supervisor for Marathon Oil for 32 years. And in that capacity, you did… Let’s just clarify.” I’m gonna make out to be the most brilliant person, that that you’ve made sound decisions, that you’ve had huge responsibilities in your life. And I’m gonna say now, you’re coming to tell me that in three hours of time, that you didn’t have enough savvy to think about what you were doing? And that’s what they’re likely to do. But go ahead.
Absolutely. I did want to point out, as somebody in the in the chat mentioned, and as you have said, about they could disengage. I can’t tell you how many people did disengage. 60%, I think off the survey is what we’ve come up with. And one of the other co-founders of CAGE, their son disengaged three times. And the police keep calling you back. They keep calling you back. And so yes, he could have decided not to drive there. Yes, he could have. But that’s not the end of the story for the people who do choose that. They’re called back. And not only are they called back, but then they’re… And this is unfortunately one of the things that the opinion quotes: Harassment or coercion or threats. They are called back and mocked. That seems to be the big thing. They’re called back. And this was the Glandt’s son, Brian, who was also 20, he disengaged. They called him back and said, “I knew you were a flake. You’re not man enough.”
So they shame you and whatnot into continuing on.
Well, clearly enticement didn’t work. So, they’re going to, yes, harass you.
“You don’t have hair on your… if you don’t…” Okay.
That would build your entrapment defense if you could show that that those things occurred. That’s going to strengthen your entrapment defense, because all those things are relevant for the jury to hear that, “I tried to disengage. I tried three different times. And this is what happened.” And the jury hearing that would probably take a different look at it if you got the right jury. Jury selection is key to this. Too many attorneys discount the importance of jury selection. You’ve got to do thorough analysis of your jury pool. And you’ve got to get the best choices you have. You got to find cause to… You get a certain number of peremptory challenges, meaning you don’t need a reason [to dismiss]. You don’t want to burn those needlessly because you want to try to find cause to drop a juror. So therefore, that requires a little bit of work to figure out how you can dismiss this juror burning a peremptory challenge. And if you don’t take jury selection seriously, if you just stipulate to everybody that the court wants to hurry the process along, they’re gonna want the jury selection to take as little time as possible. You have to be an assertive attorney and say, “Judge, it’s gonna take some time.” Depending on how much you want to irritate the judge… Some lawyers don’t want to irritate judges. They have to practice before them every day.
Absolutely, yeah. So we are very hopeful in the state of Washington, and this will be a game changer for us. And time will tell. And, you know, that young man who was called back twice, Glandt’s son, is now serving nine years. He was 20. He had no criminal record. He had no predisposition. He’s in jail for nine years and on probation and registry for life. So we’re hoping this makes a difference.
Was he denied the entrapment instruction? Because this would certainly provide him the opportunity to go back.
Yes, all of us were. Yes.
So what you just said is if this one goes through, then that might provide an opportunity to go, as you say, take a second bite of the apple? That people could go back and try and mitigate that part of it?
There’s actually a couple of different levels here. A lot of us, we didn’t try entrapment in court, because we were told by our lawyers, we couldn’t. To that would go to ineffective counsel, I believe, Larry? Yes? (Larry: It could. Yes.) Yeah. So, a lot of people will file on that, that there was ineffective counsel. Of course, you only have so long that you can file for all of these, but there were 18 people, at least 18 people who tried in court and were denied the entrapment defense. And obviously, all of those would then be stacked up for appeals on that basis now.
Well, I normally tell people that’re using ineffective assistance that they don’t have strong, compelling evidence to prevail on that. Because the standard, I believe it was Strickland versus Washington, where they determine whether the council was effective. Somebody can Google it while we’re talking. But I believe that’s the paramount Supreme Court case. Well, you have to show that council’s performance was deficient. And, of course, now if I’m the State, here’s what I’m going to argue. I’m gonna say “counsel’s performance was not deficient. Because the state of the law as it existed at that time was that the standards to get an entrapment instruction were as follows. And therefore, they wouldn’t have gotten an instruction under the law as it existed at that time.” That’s what I’m gonna say, and that’s what they’re gonna say. The second prong of that test is that you have to prove “but for that omission, that the outcome, there’s a strong probability the outcome would have been different.” And you can show that here. I don’t know if you can show a strong probability, but there’s a probability that a jury considering an entrapment defense could have reached a different outcome. So those cases, if you have to go for an ineffective assistance council to get back in court, they’re more compelling than a lot of people who think they’ve got ineffective assistance of counsel, because everything that a lawyer does is they’re afforded that kind of latitude to do whatever they deem to be strategically best. The only decision you get to make is whether you testify and whether you go to trial. Everything else is in the hands of the attorney. And therefore, everything they do is presumed to be competent. Very few attorneys will stipulate that they really ineffective, that they missed something. It does happen. But most of the time, they will not come in and say “Your Honor, I blew it. I messed this case up. I was ineffective.”
Like you’re saying, Larry, they couldn’t use it. So unfortunately, we have to then say that, but you’re absolutely right. They knew they couldn’t use it. It wouldn’t have gone anywhere in the state of Washington.
A question in chat says they don’t understand why a defense lawyer doesn’t have the ability to choose his or her own type of defense.
Well, the defense attorney does have the ability to choose. I don’t understand the question. The defendant, the accused, gets to make a decision whether they testify. That’s their decision alone. And they get to decide whether they go to trial or not. But the defense attorney gets to decide everything else in the progression of the case. Now, you can have a conflict. And you can ask your attorney to withdraw because you’re having an irreconcilable conflict on strategy. But ultimately, the strategy and determination of what they’re going to do, what motion they’re going to file, those are not your choices as the accused.
Yeah, I think though, the question is, if you believe that you were entrapped, why can’t you then go to court and say, I was entrapped?
Well, you could in the state of Washington. But the problem is, as we’ve been saying, the jury isn’t going to get the instruction. You have to go through the judge, and the judge is not going to let that happen. And so your entrapment is basically cut off before you get anywhere.
Washington was unique in how they structured the entrapment defense. They did not allow you to present it until you’ve made a very high threshold showing. Now this case has changed that, but that was the law as it existed. They treated it as a regular affirmative defense, meaning that you had a higher threshold to show before you could get that instruction. Now that is changing because of this decision. That burden that you had is no longer there. You have to have a much weaker showing which is prima facie, which is a minimal threshold showing that you that there was these inducements and the things that we talked about earlier in the podcast. But yes, you can put it forward. But the judge had the ability say, “Nope, the jury doesn’t get to hear that obstruction. You didn’t meet your burden of proof.” There should be no burden of proof. The defendant should have to prove nothing.
Absolutely. And if I may, Mr. PA Dad, you were talking about an effective attorney could have won this type of case in court. There was an appeal that was lost concerning this exact same thing by the lead defense attorney for sex offense crimes. He happens to be on the board of the Sex Offender Policy Board. And he’s working with CAGE and Washington Voices on trying to reduce this lifetime parole and other things. He was denied, and he is a very good lawyer. Frankly, I think that the Supreme Court finally saw so many of these outrageous cases coming through that they finally put their foot down. And, Larry, you could talk to us about it. But you know, I think the one or two, they’re kind of like, “Oh, we’re not going to change the laws because one or two has happened.” But this is a plethora of extreme cases that have come through. And suddenly they decided, yeah, this is enough and said, “Nope. We’re done.”
Well, they did. They said, we’ve got it wrong on the standard. We’re applying too difficult of a standard for this situation. They had treated entrapment as a regular affirmative defense. They’ve now deviated from that, and they’ve decided that that was wrong. And that’s the mark of a mature court. They realized that what they thought was right was no longer correct.
Yep. And we’re very thankful.
Is there anything else gang? We’ve been going for forever.
I think we’ve done a great job covering this case.
Yes. And thank you for letting me air this issue and this new outcome, because we’re so excited.
Fantastic. Thank you so much, Kathleen. I really appreciate you coming on. And sorry about last week. I would have sounded like I was like a toad or a frog or some alligator. I was in bad shape. I was not feeling well at all. Thank you all for being flexible. (Kathleen: Glad you’re feeling better). Yeah, me too. I appreciate that. All right, well, if you didn’t hear the previous segment, then you are not a Patreon subscriber. And you just missed a 20-minute conversation, and you should become a Patreon member over at Patreon.com/registrymatters so that you could then go hear this little bonus segment that we just did. There, that’s some time travel stuff that I just pulled off Larry. (Larry: Awesome.) So last week, I played- actually two weeks ago- I played this Who’s that Speaker?
Mallory McMorrow Audio Clip 1:07:04
I want every child in this state to feel seen heard and supported, not marginalized and targeted because they are not straight, white and Christian.
I love that clip. Man. That is Mallory McMorrow if I’ve pronounced that correctly. Can you give me the context around that speech? Did you read or follow much about that one?
I think it was on the floor of the House of Representatives. She’s a representative right? Or is she a senator?
I believe she’s at the state level in Michigan, if I’m not mistaken.
She was on a floor. She was giving that and it was very passioned. And I have decided that she is now my fiancée.
What prompted it- I’m gonna butcher this, so I’m gonna get as close as I can- Another representative called her out on Twitter to some degree, and saying that, I guess she’s a Democrat, so was making some sort of dig on her about supporting LGBTQ+ stuff. So she came back as being white privilege and took the stance from that side of it, and gave this like five minute long rant that the whole thing sounds just like that, and firing back at him with guns blazing. And it was pretty badass I gotta say. Go look it up if you did not see it. And Jacob was the first one to write in. So thank you, Jacob, there’s your 15 seconds of fame. Really appreciate that you wrote in and supporting my little quest here and Larry’s quest to do this little Who’s that Speaker segment. And if you don’t know who this one is, this one’s pretty easy the one coming up for episode 224 here. But this would have been a little while ago. And I know that our super savvy person is going to know who this is. But maybe some of you don’t. But this one’s kind of funny.
Who’s that Speaker? 1:08:45
It’s three agencies of government when I get there that are gone. Commerce, education, and the, uh, what’s the third one there?
So there is a person who seemed to forget what the third one was while he giving some sort of conversation with people. Thoughts, Larry, before we head out?
That is a humorous clip I’ll have to tell you.
Yep. So we can talk about that next week and give more details about it. With that and without anything else, Larry, obviously, we’re not going to cover any articles. Oh, we did get a new Patron. So thank you. Thank you, Heidi. Heidi joined in the Registry Matters FYP alliance that we got going on here, and I can’t thank you enough for doing that for supporting the program. And then also, of course, thank you to all of our patrons, the ones that are in chat tonight. They have the privilege of joining us because they are Patrons and I very, very, very… Oh, Heidi is a CAGE member. So thank you very much Heidi. So, you got us a patron. Thank you very much, Kathleen. And thank you for supporting all of our work and efforts there. Thank you very much Patrons. So find the show notes over at registrymatters.co. So, phone number is 747-227-4477. Email, like I said, is registrymatters email@example.com and Patreon.com/registrymatters. And before I get out of here, Larry, before we get out of here, I’m going to remember to press this little button that will tell you to press like and subscribe on YouTube and share it and all that stuff. And hopefully, yeah, there it goes. There it goes. click click click Yay. Larry, as always, I thank you so very much. You are the master blaster of knowing all things policy and legal and we couldn’t do it without you. And I hope you have a great night.
Thanks for having me back.
Of course. Have a great weekend, my friend.
You’ve been listening to FYP.