Welcome back to my four-part summary of the trial of State of Washington v. Kurt Benshoof!
First, read Day 1: https://vivabarneslaw.locals.com/feed?post=6729570
and Day 2: https://vivabarneslaw.locals.com/feed?post=6735787
Same caveats as before - this is a summary of my notes, based on my best recollection and my own opinion!
DAY 3 - WEDNESDAY
On third day of state-led lawfare, our wise Court dealt with further pre-trial motions!
More specifically, debating the exclusion of evidence in the form of police bodycam footage.
We had the morning off, and court began at 1:00PM. Incidentally, I may or may not have hypothetically jaywalked right in from of the police detective I mentioned in Day 1's summary, running across the street and momentarily alarming him (hypothetically). Oops!
Counsel for the state walked in at 1:03PM with a box labelled "Benshoof". Two minutes later, Kurt is brought in with the usual handcuffs and full red jumpsuit. A lovely lady named Melissa, who I understand to be a board member, asked who I was and if I was there for Kurt. I explained I was a board member, and asked if she knew Kurt. She said yes, and said that he's a good guy.
Two matters scheduled for today, referred to as hearings on "3.5" and "3.6" grounds. I may be incorrect, but I believe this refers to the Washington State Superior Court Criminal Rules: https://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=sup&set=CrR
Rule 3 is "Rights of Defendants". 3.5 is "Confession Procedure":https://www.courts.wa.gov/court_rules/pdf/CrR/SUP_CrR_03_05_00.pdf
And rule 3.6 is "Suppression Hearings - Duty of Court": https://www.courts.wa.gov/court_rules/pdf/CrR/SUP_CrR_03_06_00.pdf
Barnes begins by claiming there was a material misrepresentation in the search warrant filled out by the aforementioned detective, present at State's counsel table. For example, it incorrectly listed Kurt as having previously been married to Jade, along with various factual omissions. Barnes raised this as a Fourth Amendment Issue, and specifically one of particularity.
Barnes then explained that under State v. Fairley, a 2020 decision of the Washington Court of Appeals, a search warrant authorizing seizure of a cell phone does not authorize a search of that phone. A separate warrant is needed, and Barnes said the probable cause materials needs to be separated from private material. Further, Barnes moved to suppress any such evidence, and exclude any member of the prosecution who saw inadmissible information that would give an unfair advantage.
The State replied that none of the items seized were searched, and the messages in question were retrieved from other devices (Jade's phone/computer). Barnes says he'll take State's counsel at his word that they didn't search the devices.
State counsel says that Detective Ellis, the officer sitting at counsel table, wrote the warrant application.
It's worth noting that Kurt would occasionally whisper something in Barnes' ear. I never heard what he said, and wouldn't repeat it if I had. I mention this to say that Kurt seemed to be very well versed in the intricacies of his case, and I speculate that he may have been pointing out flaws in the State's theory or factual statements. Again, he comes across as very sharp.
State counsel (last name Jenkins, by the way) then says the State took photos of the home during the search and a limited number will be introduced.
A "Franks Hearing" was mentioned. I didn't know what this was at the time, but now know it is a proceeding to determine whether or not a police officer lied in a search warrant application. Apparently, Kurt had previously requested a Franks Hearing, but the Court found there wasn't and isn't a basis for one in this matter.
We then heard from our first two witnesses in the case! The State called two officers, each of whom responded to different alleged violations of Kurt's restraining orders. The two incidents at hand were:
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August 15, 2022: Officers were notified of a restraining order violation, went to Mr. Benshoof's house, and detained him. The State's position is that Kurt made voluntary statements to the police, and that he was not under arrest. Further, if the Court did find he was under arrest, that he was properly read his Miranda rights and waived his right to an attorney and to remain silent.
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January 23, 2023: Another restraining order violation. Again, the State says he engaged in a voluntary conversation with police.
The State calls Officer Nicholas Hughes to the stand, and swears him in. He works for the Seattle Police Department in the North Precinct, Lincoln sector. He testified to interacting with Kurt three times, that he can recall. He responded to Jade's house a few times.
Officer Hughes was present for the August 15, 2022 incident. He described seeing an "FJ car" at Kurt's house, like a big SUV. Hughes testified that Kurt was detained while officers determined if there was probable cause for a violation.
While the State was asking questions, I noticed the lawyer appeared to be reading directly from the police reports filed in Kurt's Seattle case. I recognized them from having read them the prior day.
The State then played the recording from officer Hughes' "Axon bodycam". It depicted the police driving up to Kurt's house, then up the driveway. We hear the officer say that Kurt "violated a no-contact order," and see Kurt's vehicle. The officers go up the front porch stairs and knock on Kurt's door. Officer Hughes walks to the front window, looks inside, and says "someone's home."
Kurt opens the door and hands the officers a stack of papers (a thick stack - maybe 80-100 sheets). The officers ask if his son is home. Kurt says yes, that his son (A.R.W.) had a conversation with his mom leading to him arriving at Kurt's house. Kurt says he told A.R.W. that he needed to leave, but that A.R.W. told him his mom had said "go ahead" when he was leaving. Kurt explained that he thought she (Jade) might be trying to set him up.
Kurt attempts to explain the paperwork but the cops interrupt him. He describes the no-contact order as "allegedly valid", and that he explains that in the paperwork. The officers ask if Kurt had talked to his son on Discord, and Kurt says no. He says that he last talked to his son over Zoom on August 18. Kurt mentions something about the safety and efficacy of the COVID-19 vaccine.
Kurt says he has not been served the no-contact order. One of the officers says that it's in their system, and points out Kurt has previously been arrested for violating it. Kurt doubles down, insisting he was never properly served.
He explains that the restraining order started in around October 2021, and was in effect for one year. He has since heard about a new restraining order which he has not been served with. At this point, Kurt leaves to go get his son from inside the house.
The State pauses the video because the court computer is about to automatically restart, and he's unable to stop it. He switches to a different computer, and resumes the video.
Kurt's son, A.R.W., comes out of the house onto the porch. Kurt says he's recording the discussion.
The officer asks A.R.W. if he's been planning this visit with his dad, and asks what his Discord handle is. He confirms that his handle is "Wrench" (if I recall correctly), but does not positively identify that the user he was interacting with was Kurt.
A.R.W. tells the officers that his mom didn't stop him from coming over here. The cops ask Kurt why he didn't call the police when A.R.W. arrived.
According to their system, the restraining order was apparently served in November 2022.
The cop says that it doesn't matter if Jade gave A.R.W. permission to come over to his dad's, and that his dad was in trouble for letting him into the house. Kurt says he didn't let him in, and that he hadn't seen anything saying he had to call 9-11 if his son showed up. Kurt again denies that he talked to his son on Discord.
A.R.W. tells the cops that he doesn't want to go back to his mom's house. Kurt says if A.R.W. has to go back, then the cops can take him to another family member's house. The cops reply that he's 13 years old and needs to stay with his mom.
At this point, the officer tells Kurt to step out of the house. Kurt closes the door. The cop shouts that he's taking Kurt to jail under mandatory arrest.
The cops speak to A.R.W., describing Kurt as being too scared to handle his problems and locking A.R.W. out of the house. They bring A.R.W. down to their car. One cop continues speaking with A.R.W. while Officer Hughes calls the incident in. Video ends.
Through further questioning from the state, Officer Hughes testifies that Kurt was standing in the "threshold of his door", and that he was not under arrest at the beginning of the video. He was never physically placed under arrest.
Time for cross-examination! Barnes steps up and asks whether Officer Hughes told Mr. Benshoof that he was free to end the conversation at any time. The officer replied in the negative. Barnes then asked if he understands that the presence of two officers at their doorstep would lead many people to believe they're being detained. The officer replied, "I guess."
NOTE: there was some confusion about the order in which the videos were played, and the dates the incidents in question occurred. This was confusing in court, and I understand it will be confusing now. Hang tight.
Next, the State called Officer Jordan Wallace to the stand, from SPD North Precinct. The State quickly started playing the second video, described as being from the August 15, 2022 incident.
Video shows: Officers are driving towards Kurt's house, and the officers see Kurt running to his door. The officers catch up with Kurt and tell him he's being detained. Cop begins to ask Kurt a question, but catches himself, and reads him his Miranda rights first.
He then asks Kurt why he ran when he saw the cops. Kurt says he has already been unlawfully arrested numerous times, and here he was, being arrested again. Officer Wallace says he's not under arrest, just being detained while he conducts an investigation.
Kurt asks the officers if they can move down onto the street as he didn't want to disturb his neighbours, who he described as being like family. The officers said "not right now," but indicated they would move in the neighbours asked.
Kurt then describes Jade in unflattering terms. He said she's a prostitute, stole his car, is extorting him, etc, and has committed multiple felonies, evidence of which he has provided to the SPD's investigative unit. Interestingly, Officer Wallace says that due to defunding of police, there's a huge investigative backlog, and he himself is only now going through cases filed in 2018.
Kurt described being in a "Jerry Springer" type situation. Officer Wallace asks Kurt if he contacted child protective services about his allegations. Kurt replies that he's contacted everyone. He describes in detail to the cop how Jade engaged in prostitution at home while A.R.W. was there, and says there's "worse abuse than that."
Kurt then explains that the Family Court is an administrative court, not civil or criminal, and the restraining order is fraudulent because Family Court can't issue them in the first place. He says he filed two "show cause" orders to bring Jade and her lawyer to court. He says he has 100 pages of "hard proof."
Kurt then cites a specific provision of law restricting jurisdiction over a parent: RCW 26.09.004, paragraphs 3 and 4, defining "permanent parenting plan" and "temporary parenting plan": https://app.leg.wa.gov/rcw/default.aspx?cite=26.09.004
Kurt says he's no longer party to one of the cases in question, and is not aware of being a respondent in a restraining order. It's a hard no, in no uncertain terms. The video ends.
Officer Wallace explains he almost always reads directly from the Miranda card he carries on duty, including this time, and has Mirandize people over 5000 times. He says he asked Kurt "investigatory questions."
Time for Barnes' cross-exam!
Barnes asks Officer Wallace if he instructed Mr. Benshoof to stay at the base of his stairs. I don't remember what the officer said in response. Barnes then asked if being placed in handcuffs means someone is under arrest. I don't remember exactly what Officer Wallace replied, but I believe the answer was along the lines of "not necessarily".
The State's position is that the August 15 incident did not involve Kurt being placed under arrest. But if the Court disagrees, then it should nonetheless be admissible.
Barnes' position is that he was under custodial interrogation on August 15, and moves to suppress Kurt's statements from the January 2023 incident.
The State once again speaks with Barnes about stipulating to the fact that Kurt was properly served with the restraining order. No commitment either way from Barnes.
We broke for lunch, returning at 2:37PM. As previously mentioned, the dates and order of the two videos were confusing, including to Judge Parisien, who sought clarification. It was clarified that the videos were shown in reverse order; January 2023, and then August 2022.
The Court finds that Kurt was not in an interrogative situation in the January 2023 video, and his statements are admissible. She also found that he was not under custodial interrogation in the August 15, 2022 incident, and rules admissible.
Along with some procedural questions from Barnes, the parties argued a bit about redactions and the previously-discussed stipulation. The State essentially accused Barnes of making "ad hoc" redactions to the Discord chats. From my perspective, it seemed to be a matter of simple miscommunication between the lawyers.
Judge Parisien put the Court into recess, then quickly changed her mind to ask again about wether or not Barnes would stipulate to service of the restraining order. Barnes said this would be decided tonight. The Court replied that this "should be a pretty easy stipulation." She then told Barnes that his proposed jury instructions need to be in soon, deciding on a deadline of first thing Monday morning. The State ended the day by expressing concern over the timeline of the case.
And there you have it! I will summarize Day 4, opening statements, next. My goal is to have that up tonight, or at the very latest, tomorrow before the Sunday show.
Thanks for your patience, and for strong interest in the case. I have no doubt Kurt and @RobertBarnes are all the more motivated by your kind words, and I am personally very excited to hear from Robert during tomorrow's show!
