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Tue., May 20, 2008

Protecting rights

Law students have enough to learn without mastering clairvoyance.

But maybe they should, if the criminal justice system is going to deal not only with wrongs committed but also those merely contemplated.

Today’s sex offenders can serve their sentences and still be placed under indefinite restrictions, even be sent back to prison for life, if experts foresee more offenses.

Drug paraphernalia laws, such as the one Spokane enacted earlier this year, outlaw otherwise legal products on the presumption they will be used illicitly.

Cold medicines? They’re not just for the sniffles any more.

Which brings up last week’s Washington state Supreme Court ruling that sent a drug conviction back to Spokane County for a new trial. The fatal flaw? A series of procedural errors.

The defendant who benefited from the decision, 63-year-old Virgil R. Montgomery, of Newport, was convicted three years ago of possessing significant quantities of ingredients for making methamphetamine.

Even Justice Tom Chambers, who wrote the majority opinion, conceded there was “substantial evidence” to back up the jury verdict. Montgomery and a companion who’s now in prison drove to Spokane on June 23, 2004, and stopped at seven stores, buying a variety of items – often splitting up and making separate purchases – which included mostly cold medicines and other ingredients used in meth making.

Where the lawyers and trial court Judge Michael Price went wrong was in allowing arguments and instructions that violated Montgomery’s right to a fair trial. Witnesses who had testified about facts also were allowed to speculate about Montgomery’s guilt. The prosecution was allowed to suggest that the absence of a potential defense witness was evidence that his testimony would have been unfavorable. The judge said as much in his instructions to the jurors.

Now the case is to be tried again – at substantial cost to the public.

That’s the same public that has declared, through its elected legislators, that certain patterns of conduct should be punished because of where they might lead. The public is fed up with drug and sex offenses, but if that is to be our standard it is more important than ever that court procedures diligently protect every citizen’s right to a fair trial.

A cynic will call procedural errors technalities. A civil libertarian will exalt them as bedrock constitutional protections.

They’re both right.

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