The Evidence Advantage: Strengthening Your Client’s Story for Trial
Session Descriptions
Friday, April 25, 2025
Legislative Update
Ramona Brandes, Misdemeanor Resource Attorney, WDA
1:30 PM – 2:30 PM
Washington’s 2025 legislative session has included bills addressing public defense funding, felony sentencing, traffic stops, legal financial obligations and judicial discretion in resentencing. All of these issues are of importance to public defenders and will affect how they handle their cases going forward. This session will cover the progress or outcomes for these bills and any others related to public defense.
Keynote
Christopher Poulos, Director, Center for Justice and Human Dignity
2:30 PM – 3:30 PM
Christopher Poulos is an attorney, speaker, writer, and consultant. He currently serves as the Executive Director of the Center for Justice and Human Dignity and has served as the Executive Director of the Washington Statewide Reentry Council. He regularly speaks and writes about his path from addiction and incarceration to college, law school, the White House and beyond. This motivational keynote will address Mr. Poulos’s story and the importance of zealous public defense.
Who Qualifies as an Expert?
Lei Young, Attorney, Washington State Office of Public Defense, and Christopher Swaby, Director, Clark County Indigent Defense
3:45 PM-4:45 PM (Concurrent)
Prosecutors routinely use police officer opinion testimony to establish their story of the case at trial. This session will focus on understanding the use of police testimony to establish an investigative narrative, distinguishing between lay and expert opinion evidence, and discussing ways to limit police opinion testimony. This session will be presented by Christopher Swaby, Director of the Clark County Public Defense Office, and Lei Young, Supervising Attorney for the Washington State Office of Public Defense Disproportionality Unit.
The Changing Landscape of Sentencing and Lessons from Resentencing
Cindy Arends Elsberry, Resentencing Resource Attorney, WDA, and Sarah Hudson, Immigration Resentencing Resource Attorney, WDA
3:45 PM-4:45 PM (Concurrent)
In recent years, the practice of criminal defense in Washington has changed with the influx of resentencing cases. Before 2020, resentencing hearings were uncommon. They were typically the result of reversal of a conviction, or a sentencing error litigated on direct appeal, and remanded to the trial court to correct the offender score and to impose an adjusted sentence. Beginning in 2020, a rapid series of changes in the law resulted in several new legal avenues to revisit past sentences through resentencing, including thousands of people brought back to court for resentencing following court decisions and legislation. These changes include (1) the State v. Blake court decision, which invalidated decades and thousands of convictions for simple drug possession in Washington, (2) legislation removing robbery 2 from the list of “strike” offenses for the three strikes law; (3) prosecutor initiated resentencing “in the interest of justice” pursuant to RCW 36.27.130; and (4) several changes from both the courts and the legislature regarding fair and constitutional sentencing of youth and young adults who commit serious crimes.
In this session, presenters will provide an overview of the changes to the felony sentencing landscape, how resentencing hearings today differ from other sentencing hearings, and lessons learned from resentencing hearings that can improve advocacy and outcomes at other sentencing hearings. Presenters will also cover what defense attorneys should know to properly advise their clients going to prison so that the client will put themselves in the best position to seek early release if resentencing or another early release avenue is or may become an option for them in the future.
Object Anyway
Michael Schuler, Attorney / Partner, Heyman and Schuler
4:45 PM-5:45 PM (Concurrent)
Knowing when to object can be one of the most difficult aspects of trying a case. In this session, Michael Schuler, an experienced trial lawyer, will discuss grounds for objections that arise frequently, such as hearsay under ER 801-807 and relevance under ER 401-413. He will address objecting as an important part of trial and as a way to preserve the record for appeal. Attendees will leave this session with an understanding of when to object and the motivation to do so.
Preserving Your Client’s Issues for Appeal: Motions in Limine and Misconduct
Kathryn Russell Selk, Attorney, Russell Selk Law Offices
4:45 PM-5:45 PM (Concurrent)
Despite the best efforts of defenders, some of their cases will end up on appeal. What do defenders need to do to make a record so all of the errors at trial can be reviewed? This session will start with an overview then look at two common situations – motions in limine and misconduct of witnesses and prosecutors. Kathryn Russell Selk, an experienced appellate lawyer, will walk through the requirements, look at some examples, and debunk some myths. If you have ever wondered “do I have to object again even after the ruling in limine,” this session is for you.
Saturday, April 26, 2025
Keeping Out Extrajudicial Statements in DV Cases and Beyond
Nicole Dalton, Attorney, Dalton Law Office
9:00 AM –10:00 AM (Concurrent)
In criminal cases, prosecutors often rely on proof in the form of extrajudicial statements made by witnesses. For extrajudicial statements to be admissible, prosecutors typically will either have to argue to classify those statements as non-hearsay or find an exception to the hearsay rules. Such extra-judicial statements often include: statements to police, statements to other witnesses, written statements proposed as Smith affidavits, and statements made to 911 operators. One exception often used as a “catch-all” is using prior statements to impeach the witness. When witnesses change their story, or the police get it wrong to begin with, prosecutors often attempt to impeach their alleged victim or critical witnesses with prior inconsistent statements to present the matter as being consistent with the version initially presented in the police reports. However, specific prohibitions exist to prevent parties from introducing otherwise inadmissible, extrajudicial statements as substantive evidence in the guise of impeachment. Whether this kind of information is ultimately admissible depends on thoroughly navigating the hearsay analysis, fighting the prosecution’s proposed theories that the statements are not hearsay or subject to exception, and setting the stage for a successful challenge to their admissibility under State v. Lavaris, 106 Wn.2d 340, 721 P.2d 515 (1986) and similar federal jurisprudence. This presentation is designed to clarify the process of analyzing such statements and fighting their admissibility.
How “Character Evidence” Accelerates the Use of Bias and Propensity to Prove Parental Unfitness at Trial
D’Adre Cunningham, Incarcerated Parents Project Resource Attorney, WDA
9:00 AM –10:00 AM (Concurrent)
D’Adre Cunningham, the head of WDA’s Incarcerated Parents Project, will introduce practical ways to improve legal representation of parents in juvenile dependency court and in criminal court when parents are accused of child abuse, child neglect, or other parental misconduct. Learning objectives include:
- Review of History of Character Evidence Rules and Their Purposes & the Intersection of Gender and Racial Bias
- Review of Racial Stereotyping and Other Prejudices & the Character Evidence Rules
- Review of Jurisprudence About Using Parental Misconduct or Unfitness to Undermine Constitutional Rights to Family Integrity
- Review of Use of Character Evidence Rules to Admit Parenting History, Lifestyle, and Life Choices to Prove Unfitness
The presentation format will include a PowerPoint presentation. Legal resources will be provided, including but not limited to: bibliography of legal resources, sample motion in limine, and supporting briefs to exclude biased or propensity information at trial and evidentiary hearings.
Defending So-Called Bad Parents: Preventing Admission of Biased Character Evidence about Parenting Mistakes
10:00 AM – 11:00 AM (Concurrent)
D’Adre Cunningham, Incarcerated Parents Project Resource Attorney, WDA
D’Adre Cunningham, who heads WDA’s Incarcerated Parents Project, will introduce practical ways to improve the legal representation of parents in juvenile dependency court and in criminal court when parents are accused of child abuse, child neglect, or other parental misconduct. Learning objectives include:
- Review Washington Jurisprudence Concerning Termination Law and Parental Unfitness
- Reviewing Termination Framework: Approaches in Law, “Impliedly Bad Parent” vs. “Expressly Bad Parent”
- Understanding and Strategizing Legal Arguments for Preventing Use of Biased or Propensity Evidence at Trial using Character Evidence Rules
The presentation format will include a PowerPoint presentation and at least one breakout session. Legal resources will be provided, including but not limited to: sample trial briefs to exclude biased or propensity information at trial and evidentiary hearings.
The Science and Art of Presenting Medical Testimony
10:00 AM – 11:00 AM (Concurrent)
Anna Samuel, Attorney, King County DPD
In this session, Anna Samuel, a public defender who has handled cases from misdemeanors to serious felonies and is now a supervisor with the King County Department of Public Defense, will discuss steps defenders should take when assigned a child homicide case. She will cover relevant science and medical information and working with doctors. She will also address ways to present scientific and medical evidence to a jury in a way that makes sense to them, including using demonstrative evidence.
Advanced Topics in Crimmigration Law
10:00 AM – 11:00 AM (Concurrent)
Lori Walls, Immigration Resource Attorney, WDA, Amy Kratz, Immigration Resource Attorney, WDA, Jonathan Moore, Immigration Resource Specialist, WDA
Join the WDAIP team for a deep dive into the infamous “categorical approach.” The categorical approach is the primary tool used to analyze the immigration consequences of a given offense. Learn what it is, how it works, and why it matters. Time permitting, we will also delve into the mysteries of “crimes involving moral turpitude.”
Crawford: Cutting Through the Chaos to Define What is Testimonial for the Court
Elbert Aull, Attorney, Metropolitan Public Defender Services
11:00 AM – 12:00 PM (Concurrent)
Under Crawford v. Washington, 124 S.Ct. 1354 (2004), and its progeny, the Confrontation Clause forbids prosecutors from introducing absent witnesses’ testimonial statements at trial. In this session, Elbert Aull, who supervises public defenders representing people charged with violent felonies, will examine those cases in the context of facts that include multiple police interviews and 911 calls. He will discuss ways to combat arguments by prosecutors that statements to police were nontestimonial because, for example, the accused was at large. He will also focus on strategies defenders can use when framing Crawford arguments, encouraging them to pick carefully which statements they challenge as testimonial so they can present the court with a nuanced version of events ahead of prosecutors’ arguments.
Addressing Race in Voir Dire
11:00 AM – 12:00 PM (Concurrent)
Jason Lantz, Attorney, Burg & Lantz and Ramona Brandes, Felony Resource Attorney, WDA
It is crucial for lawyers to raise race in voir dire, especially when the person they represent is BIPOC. Implicit racial bias is ubiquitous in our society, and failure to address it with jurors allows it to be a larger part of deliberations than when lawyers face it head on. This session will focus on raising race when using the deselection method of voir dire and using GR 37, which governs race and peremptory challenges to potential jurors.
On The Topic of Opening Statements
1:30 PM – 2:30 PM (Concurrent)
Mary Kay High, Chief Deputy, Pierce County Dept. of Assigned and Pete Mazzone, Attorney, Mazzone Law Firm
This session will address the structure and delivery of effective opening statements. It will cover the nuts and bolts of openings and also include tips for more experienced practitioners. Topics will include mechanics of putting together an opening statement, what to emphasize, and the importance of telling the client’s story. The presenters, Mary Kay High and Pete Mazzone, will also discuss some dos and don’ts for opening statements. Attendees will leave this session knowing how to structure an opening statement to tell a coherent story that takes into account both good and bad facts of the case to persuade a jury.
Defending Immigrants in a Time of Adversity
1:30 PM – 2:30 PM (Concurrent)
Lori Walls, Immigration Resource Attorney, Amy Kratz, Immigration Resource Attorney, Jonathan Moore, Immigration Resource Specialist.
WDA’s Immigration Project team will provide an overview of current legal changes, executive orders, and enforcement activities relating to immigration enforcement and how these events impact your duty to effectively represent your noncitizen clients. We will also talk about Washington’s sanctuary laws, how they interact with the new enforcement regime, and how they might play a role in your cases. Finally, we will provide you with the information and tools you need to most effectively use WDAIP’s services, advise your clients, and work to mitigate negative immigration consequences.
Advising Clients About Testifying
Arian Noma, Attorney, The NOMA Firm
2:30 PM – 3:30 PM (Concurrent)
This session will address both advising clients about whether to testify and preparing clients to testify. Arian Noma, an experienced trial lawyer, will discuss considerations that arise when advising a client about whether to testify, including the impact the client’s testimony may have on the jury, whether and how their client may be impeached, and the client’s right to make the ultimate decision. Mr. Noma will also explain how to prepare a client to testify in a way jurors can understand and digest and to answer questions on cross-examination.
The Role of Forensic Linguistics in Criminal Cases
2:30 PM – 3:30 PM (Concurrent)
Ann Wennerstrom, Attorney, Wennerstrom Law
In this Session, Ann Wennerstrom, who is both an attorney and a linguist, will discuss how public defenders might benefit from working with a forensic linguist. She will explain the field of forensic linguistics and address the different types of analyses that forensic linguists can do. The session will cover language proficiency assessments for limited English speakers, analysis of the discourse of trials and interviews, and assessments of interpreter effectiveness: Did the defendant understand the communication at each stage? Other applications of forensic linguistics include comparing the accused’s language with existing language samples to identify the speaker; analysis of voice patterns to determine truthfulness versus lying; and analysis of coerced confessions. Attendees will leave this session understanding what forensic linguistics is and how it can help them advocate for their clients.
Defender Wellness
2:30 PM – 3:15 PM (Concurrent)
Rachel Cortez, Nat Jacob, Jonathan Patnode, Attorneys, WA State Office of Public Defense
0.75 Ethics Credit
Public defenders work under extremely stressful conditions and must navigate pressure from courts and prosecutors, overwhelming workloads, and secondary trauma related to the lives of their clients. Extreme stress can make communication difficult, harming working relationships and interfering with the duty under RPC 1.4 to keep clients informed about their cases and explain legal and factual matters. This session will explore strategies for handling stress, and the presenters will explain how reducing stress can lead to better work performance and increased professionalism.
What if Marie Kondo Was a Public Defender? Can the Six Basic Rules of Tidying Prevent Burnout and Maintain Joy?
Judge Linda W.Y. Coburn
3:45 PM – 4:45 PM
Whether it is organizing your files, working with staff, or preparing for trial, Judge Linda W.Y. Coburn shares lessons learned from her previous career as a public defender, trial judge and view from the appellate bench.