Compassionate Counsel Passionate Defense

group photo of attorneys and staff
Group photo of staff at Law Offices Of Smith & White PLLC
  1. Home
  2.  – 
  3. Assault
  4.  – Washington Shooter Loses Federal Appeal Claiming Plea Bargain Violated Fifth and Sixth Amendments

Washington Shooter Loses Federal Appeal Claiming Plea Bargain Violated Fifth and Sixth Amendments

On Behalf of | Aug 22, 2016 | Assault

A man who was facing assault and weapons charges decided to represent himself, only to fail in achieving the outcome for which he’d hoped. After a trial, a reversal, and a new set of charges, the man finally pled guilty to second-degree assault. Ultimately unhappy with this outcome, the man attempted to challenge his case on the grounds of two violations of the U.S. Constitution — the protection against double jeopardy and the right to an attorney. The Ninth Circuit Court of Appeals concluded that the plea violated neither constitutional provision, and the plea deal was proper, with the man’s case highlighting the clear risks involved in representing oneself in criminal cases.

The case arose from a shooting that took place on Feb. 19, 2004. During an argument involving multiple men, Kirk Rishor shot Jarrod Fife in the shoulder. Based on those events, the state charged Rishor with first-degree assault, two counts of second-degree assault, and a weapons charge. Rishor decided to go to trial representing himself, despite the trial judge’s efforts to discourage it. The jury convicted the man on one count of second-degree assault. This conviction was later overturned on appeal, and Rishor received a new trial.

The state again charged Rishor with first-degree assault. This time, Rishor and the prosecution struck a plea deal in which the man pled guilty to one count of second-degree assault. After taking the deal, though, Rishor launched several appeals in state court and then, after that, a habeas corpus action in federal court that continued to attack what occurred during his second prosecution. Rishor claimed that the state’s decision to bring a first-degree assault charge in the second trial, after the jury had impliedly acquitted him of that charge in the first trial, violated his constitutional protection against double jeopardy. He also asserted that his waiver of legal representation wasn’t valid, meaning that prosecuting him the second time without an attorney violated his constitutional right to counsel.

A federal District Court sided with Rishor, but the Ninth Circuit did not. Regarding the Sixth Amendment right to counsel claim, the appeals court pointed out that Rishor clearly made a voluntary and knowing decision not to have a lawyer represent him at his first trial. Despite the judge’s best efforts to persuade Rishor not to represent himself, the man was adamant that he wanted to proceed without a lawyer. Rishor’s argument in this appeal was that the court in the second trial was required to conduct another interview (known as a Faretta inquiry) in which the judge asks several questions to establish that the defendant’s decision to proceed without a lawyer was knowing and voluntary. The federal courts, including the U.S. Supreme Court and the Ninth Circuit, have never issued a ruling stating that a court must conduct another inquiry before allowing a defendant in a re-trial to go forward without an attorney. Because of this lack of clear legal precedent, Rishor’s argument that the conduct of his second trial clearly violated the U.S. Constitution’s right to counsel fell short.

The double jeopardy argument failed because Rishor pled out on a lesser crime (second-degree assault). Once you plead guilty to a lesser charge than the one that you assert is a double jeopardy violation, you forfeit your right to advance the argument of a double jeopardy violation unless your plea wasn’t knowing and voluntary. Rishor argued that the state used the first-degree assault charge as leverage to coerce a plea deal on second-degree assault. Unfortunately, the evidence didn’t support this argument. Rishor stated during his plea hearing that his reasons for pleading guilty were to avoid a weapons enhancement and to spare his daughter the difficulty of another trial.

While no one can state with 100% certainty what would have happened, it is clearly possible that Rishor might have achieved a better outcome and avoided all this prolonged litigation through the Washington and federal courts if he’d simply proceeded with an attorney from the start. The best way to address any criminal charge is to retain experienced criminal counsel right away. The Pierce County/Tacoma assault attorneys at Smith & White, PLLC have spent many years helping people facing charges mount a strong defense. Call us today at 253-363-8662 to schedule your initial consultation. The first consultation is free.