Zuanich Law Newsletter
Episode #56: Team Pfizer
April 21, 2021

Getting vaccinated was like preparing to write an appellate brief.  I was expecting a tough day, maybe a tough couple of days, and it turned into a week-long brief writing extravaganza—aka, a sicklapolooza.  I was “appealing” with my body to accept my arguments but my body’s immune “judges” kept imposing a “deferential standard of review” (i.e. we don’t give a shit attitude) and kept me sick.
So, as you can see, the analogy is almost a perfect fit.
I was wish I could have deferred being sick until a time when I didn’t have so much work to do, including getting to my month-long neglected newsletter.
“Wait, did you say deferred,” voice inside my head just said.
“Yes, I did say deferred,” self said.  How fitting.
State v. Skrobo
COA – Division 2
April 20, 2021
Deferred Prosecution
The deferred prosecution DUI is one of the weirdest, oddest, and intriguing parts of our criminal system:
  • Society takes DUI about a serious as any other crime—sometimes more than some violent crimes—yet you can get the case dismissed over the State’s objection without even winning any legal argument or convincing a jury
  • And the State can’t even appeal
  • It’s like a bulletproof approach in some sense … and for some defendants, they have nothing to lose … and they fire away … and sometimes the State tries to shoot them down but the defendant says, “Your honor, I am titanium.”  (At least that’s what happened when I was serving as a pro tem presiding over a deferred prosecution revocation hearing, but maybe I’m unique)
Facts: State moved to revoke DP after Skrobo committed a new offense during the DP period … after the 2 year treatment period and during the 3 year inactive portion.  District court revoked.  D appealed.  Superior court reversed, holding that court did not have the authority to revoke DP after 2-year treatment program.
Holding:  The COA was having literally none of this argument.  When the appellate courts discuss the superior court’s statutory interpretation as leading to an “absurd result,” you know things are bad.  Admire the defense attorney for creative argumentation, the COA may have said, but this is a loser argument. 
The time “during the period of deferred prosecution” under RCW 10.05 clearly means the whole 5-year period or then the district court would basically be twiddling its thumbs for the last 3 years with nothing to do. 
Skrobo creatively argued that the “deferred prosecution for alcoholism shall be for a two-year period” language means that the real DP only lasts 2 years but the COA made short work of that argument.  Under Skrobo’s reading, the court would be “powerless” to stop a defendant who committed crimes post-2 year treatment program.
 State v. Cox
COA – Division 3
April 20, 2021
Facts: Cox convicted of second degree rape.  Cox denied that he digitally penetrated female victim when she was sleeping.  He argued that victim was intoxicated and he rejected her advances.  Trial judge excluded anticipated testimony that victim had flirted with Cox and sat on his lap during the party.
Holding: COA reverses on several grounds.  This appeal concerned application of the Rape Shield Statute, which basically prevents a defendant from introducing evidence of “past sexual behavior” to impeach V or prove consent.  The State said that’s exactly what Cox was trying to do, but COA disagreed.  Flirtatious behavior was not being introduced to prove promiscuity or consent.  It was being “introduced to discredit the victim’s credibility,” the focus being on “her level of intoxication.”  
And because intoxication clearly can affect memory, at was at least somewhat probative, and clearly meets the ER 403 standard.  And finally, because the error was so prejudicial and limited Cox’s ability to present a defense, the COA ordered a new trial.
About Us: Zuanich Law focuses on criminal and civil appeals, DOL appeals, and post-conviction relief.  Our civil practice focuses on personal injury, family law, breach of contract protection order hearings, property law, landlord-tenant law, and general civil litigation.  
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