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Home  >  Topics  >  Legal

December 02, 2009
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Terrence P. Dwyer, Esq. Police Liability and Litigation
with Terrence P. Dwyer, Esq.

PoliceOne Analysis: Rendering criminal assistance in the state of Washington

The recent assassination of four Lakewood, Washington police officers and the subsequent search for the suspect reminded me of the 2006 Ralph “Bucky” Phillips manhunt in western New York State. Phillips, a career criminal, had escaped from jail and began a one-man crime wave in the Chatauqua County area of western New York and the nearby Pennsylvania countryside. By the time he was captured, one New York State Trooper, Joseph Longobardi, was dead and another, Donald Baker, was seriously wounded. Though there are no parallels to the Phillips shooting of the Troopers and the brutal slaying of the Lakewood police officers, other than the selfish, deranged acts of depraved criminals, there is a similarity in their aftermaths — the criminal complicity of family members and friends.

After “Bucky” Phillips was arrested in New York seven of his family members were charged criminally with aiding and abetting his escape and preventing his capture. The applicable New York statute used to charge many of these persons was section 205.65 of the Penal Law, Hindering Prosecution in the First Degree, a class D felony with a potential prison sentence up to seven years.

The statute provides as follows: “A person is guilty of hindering prosecution in the first degree when he renders criminal assistance to a person who has committed a class A felony, knowing or believing that such person has engaged in conduct constituting a class A felony.” This type of conduct has in the past (prior to the Model Penal Code revisions in the 1960’s) been referred to as being an accessory after the fact. What does it mean to be “rendering criminal assistance” and how do police make such a case against those involved? Pattern jury instructions in New York define “rendering criminal assistance” as a defendant acting “with intent to prevent, hinder, or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person who he or she knows or believes has committed a crime or is being sought by law enforcement officials for the commission of a crime.”

Further indication of criminal assistance may involve acting “with intent to assist a person in profiting or benefiting from the commission of a crime” and providing lodging, safe harbor, money, transportation, disguise, concealment, or destruction of evidence. The decision to charge family members with aiding and abetting a wanted felon is sometimes a tough call to make. Oftentimes the family is needed to assist in the apprehension of a suspect and charging a parent or sibling who assisted with a loved one’s escape by providing transportation or money may be counter-productive to law enforcement operations and future prosecution.

A few years ago I worked a homicide case wherein the suspect was assisted in his flight from the scene by his sister who he called and told he was in “big trouble.” Later in the day the suspect’s father attempted to help him obtain a flight out of the country to his native country of Guatemala. Fortunately, there were no flights out of John F. Kennedy Airport that day and the father brought the suspect to a relative’s home in Connecticut. Even though the family knew the suspect had killed someone and they had provided material assistance to him they were not charged with Hindering Prosecution. Instead they assisted with the investigation and provided testimony at trial which corroborated key elements of the state’s case. There are compromises that often must be made in law enforcement and this was one of them.

The greater benefit came with the family’s testimony and assistance; there was little gain to be had by charging any of them with a crime. How blameworthy can we hold a parent or sibling whose natural inclination is to help a family member? This is not to say a family member should be given a free pass owing to their love and affection for a relative who happens to be a felon. Oftentimes a sibling or parent will be the one implicating a loved one. The Unabomber, Theodore Kaczynski, was caught after his brother David acted on suspicions that Ted may be the suspect FBI agents were seeking. In a homicide of a State Police Investigator that I worked over fifteen years ago the suspect Colin Hyde was located in Denver, Colorado a few days after the shooting. It was a call from his brother that led the investigation to Colorado and the subsequent arrest of Hyde.

The slayings of the four Lakewood officers is a tragedy of epic proportions. It was a particularly cold-blooded and cowardly act by an individual who represented the worst of humanity. The law enforcement community will mourn these officers for a long time to come and question the senselessness of the shooting. Washington State officers, and their colleagues across the country, were still mourning the execution of Seattle Officer Tim Brenton by Christopher J. Montfort on Halloween when Maurice Clemmons decided to become an executioner a little less than a month later. However, the indomitability, professionalism, and commitment of the responding law enforcement officers led to this killer’s eventual capture and demise in a shootout with Seattle police. It also led to several of Clemmons’ associates being charged with rendering criminal assistance in the first degree.

A reading of the probable cause affidavit prepared by Pierce County Prosecuting Attorney Mark Lindquist indicates that investigating officers had two suspects in custody on November 30th, one day after the shooting. The suspects, Edward and Douglas Davis, were questioned and implicated themselves in providing post-shooting assistance to Clemmons. This assistance ranged from transporting Clemmons out of the immediate area, bringing him to an address where his gunshot wounds were treated and taking him to the Auburn Mall where they met another vehicle operated by a female who drove Clemmons away. The affidavit ends with, “On December 1, 2009, Maurice Clemmons was shot and killed by a Seattle Police Officer.”

The charge of rendering criminal assistance becomes magnified when you consider the fact that by assisting Clemmons, the Davis’ contributed to further violence and loss of life, albeit the suspect’s life. The Washington statute mirrors the New York Hindering Prosecution statute in the conduct sought to be punished. There is one key difference however in the Washington statute. The penalty is downgraded from a class C felony to a Gross Misdemeanor if the defense can prove by a preponderance of the evidence that the person charged is a relative to the individual to whom they are rendering assistance. “Relative” is defined under Washington criminal code section 9A.76.060 as a spouse, parent, grandparent, child, grandchild, stepchild, sibling, or step-parent and only applies provided the criminal assistance is given solely to the relative and no other individual.

The implications in the Lakewood Police case is that one suspect presently being held, Ricky Hinton, is a claimed half-brother to Clemmons. This would have the effect of reducing the potential sentence from four years to a one-year maximum. But this case is far from closed and the investigation will continue until all leads are exhausted. Follow-up interviews with witnesses, associates of Clemmons, and family members will attempt to answer the “why?” for this horrific act as well as exposing the criminal complicity of others who may be involved both before and after the crime.

None of this changes the cold hard fact that four police officers were brutally gunned down on a Sunday morning in November.


About the author

Terrence P. Dwyer retired in 2007 from the New York State Police after a 22-year career. He is now an Associate Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in discipline cases, critical incidents, and employment matters.

Contact Terry Dwyer





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