Wednesday, July 24, 2013

Yoos Case: Motion To Dismiss Denied

Yoos Case: Motion To Dismiss Denied
By Janine Unsoeld

The motion to dismiss a felony case against Scott Yoos, an Olympia man who is mute, was denied yesterday by Thurston County Superior Court Judge Christine Pomeroy.  
A date of August 12 has been set for the case to now go to trial with a twelve person jury.  This date could be changed if Yoos' attorney, Larry Hildes, asks for a delay to prepare for the case.
Yoos, 47, can hear, but cannot speak due to a head injury from a beating he suffered in 1984. (For more information and several articles about Yoos' case, use the search button and use key words on this blog at

Immediately following the court's decision, Yoos motioned this reporter to come over and read what he was writing.
"The city of Olympia needs video cameras - I would have been entirely vindicated with a recorded witness, either on the patrol cars or attached to officer's uniforms. I've seen some very sophisticated cameras under $1,000 each."
Asking him what he does now, Yoos wrote, “I’ll scheme with the attorney, hopefully rest a bit.”

Case History

Accused of a felony assault against a police officer, Yoos was initially cited for criminal trespass and obstructing justice on June 1, 2011. On that date, Yoos was riding on his bicycle through downtown Olympia at 11:30 p.m. toward his home on Martin Way, when he stopped to throw some dirty napkins in a Dumpster located at 2302 Fourth Avenue, near Twister Donuts, in Olympia.

Within minutes, several officers converged on Yoos. Yoos’ method of communication, pen and paper, were taken away, and his attempts to communicate using sign language were interpreted by officers as violent behavior.  Yoos is 5'9 and weighs about 155 pounds.

The case was bumped up to a felony after Olympia Police Department Sergeant Paul Johnson filed a report weeks after the situation, alleging that Yoos had kicked him during the scuffle. The alleged kick did not require medical treatment. Yoos denies kicking Sergeant Johnson.

Yoos’ case has dragged on for 26 months. There have been repeated delays in the case, many of them because a court-appointed sign language interpreter was not provided or available.  Larry Hildes, his attorney, has repeatedly asked the court for a motion to dismiss the case, based on discriminatory actions by the arresting law enforcement officers.
In what has amounted to several days of actual testimony in which Yoos and three law enforcement officers involved in the case testified, Olympia Police Department officers Officer Randy Wilson, Officer S. Costello, and Officer Jason Watkins, Judge Pomeroy ruled that the officers’ actions were justified, and that they had a reasonable right to stop and detain Mr. Yoos.  She further explained that their actions were not discriminatory, citing, in the court’s opinion, that it was Mr. Yoos’ repeated attempts to leave the scene that made the situation escalate.

Hildes repeatedly argued that Yoos was unjustly arrested and silenced because the officers did not have the proper training to deal with Yoos’ disability, and, after the officers made a series of assumptions, allowed the situation to escalate.
In his closing arguments, Hildes was assertive, saying in part, "Officers are supposed to deescalate situations...It became a power struggle, respect for the officers, forcing him to do what they wanted him to do and he just wanted to communicate, that's the discrimination. But for the lack of training, experience, and policy, there would not have been an incident. Dismiss this case. But for the discriminatory result, there would be no case...."
Thurston County prosecuting attorney J. Andrew Toynbee, appearing cool and calm in his demeanor, said in his closing argument, in part, "...over three days, the officers have testified and are able to give you a reason for everything...I'm telling the court they did nothing wrong. The defendant did not wish to communicate. In fact, he kept trying to leave...when asked, he did not write his name and birthdate...they had business to conduct with him. They had a reason to talk with him...there was not a lack of training or desire to communicate...he kept trying to leave....this was a dynamic situation, things happened quickly."
Citing case law, Toynbee said that the officers had justification to take action and it had nothing to do with discrimination against Mr. Yoos.
Hildes argued that it was not a dynamic situation, that they were standing there having a written exchange until Officer Wilson intentionally took his pad of paper away, preventing Yoos from further communication.
"This was like putting a gag in his mouth, intentionally using his disability against him."
Sample Testimony
Today, two sign language interpreters were available to accommodate Yoos’ method of sign language, which is signs and finger spelling. The process is time-consuming. When changes in words occurs, it is not clear if it is Yoos changing what he is saying or if the sign language interpreter misinterpreted his finger spelling. Yoos quickly corrected the interpreter if she misinterpreted his words.

The following is a portion of an unofficial transcription as heard and written by this reporter of yesterday's testimony by Yoos, when questioned by his attorney.

Hildes: Were you trying to be uncooperative?

Yoos: No, I just wanted to go home to bed and it was a little frightening to have this armed man immediately arrest me and accuse me of something that I had not done.

Hildes: Did you attempt to communicate that to him?
Yoos: I had my communication tools all taken away from me and I was just trying to sign to them.

Hildes: Did they stop trying to communicate to you at that point?
Yoos: They were interested in arresting me and attacking me.

Moments later:
Hildes: Did you attempt to leave?

Yoos: I didn’t try to “leave” three times like Costello claims that I – no, no.

Hildes: At the time, if they had communicated with you, would you have communicated with them?
Yoos: I am not a criminal. I am a former Eagle Scout, so, and preacher’s kid. I never threatened any of the police officers.

Hildes: Was it your intention to resist them?
Yoos: No, I didn’t think it was right for them to steal my bicycle and my Walkman, my wallet, my bag and all of the papers I had in my backpack and in my pocket.

Hildes: What made you think they were stealing?
Yoos: When someone violently takes something from you, that’s stealing.

Hildes: Why did you feel like it was stealing?
Yoos: I did nothing wrong and I couldn’t communicate and it was very frustrating to me.

Hildes: Were you frightened?
Yoos: Of course – there were four armed men.

Hildes: What were you wearing – what did you have on your feet?
Yoos: I was riding my bicycle with lightweight sandals like TEVA’s but cheaper.

Hildes: And you were wearing a reflective vest, correct?
Yoos: Yes.

Hildes: So you weren’t trying to sneak into the parking lot?
Yoos: No, of course not.

Hildes: So you weren’t trying to break into the donut shop?
Yoos: Please, no.

Hildes: Did you ever attempt to resist the officers?

Yoos: I only tried to communicate with Watkins by pulling in my arms so they could not cuff me again.
Hildes: Why did you do that?

Yoos: Because I needed to tell them – I needed my voice.
Hildes: So you were just trying to communicate?

Yoos: Yes.


Hildes: What frightened you about this incident?
Yoos: I had been – I was being – unjustly arrested and accused of things which I was not guilty of and physically, and I was having armed men approaching me at night.

Hildes: Was it also because they took away your ability to communicate?
Yoos: That was very frightening and frustrating to me…it was Wilson who took the pad and my communication away.

Hildes: So the officer already did that?
Yoos: Yes.

Hildes: And you were already communicating with him about the incident when he took the pad away from you?
Yoos: Yea, briefly. There are only, like, two or three back and forth conversations.

Hildes: He could have kept on writing and you would have kept responding, right?

Yoos:  Yes.
Hildes: Did you give him any reason that you didn’t want to communicate with him?

Yoos: I just wanted to go back home….I felt threatened and harassed but I was entirely willing to write back and forth with him.

With his attorney and friends, and while seated with his interpreter during the hearing, Yoos was using a new gizmo to communicate, a little black  LCD writing tablet called a Boogie Board. One button touch erases his words between thoughts. Asked about it during a break, Yoos wrote, “It was a surprise gift from a friend’s friend who won it in a raffle and sent it to me in the mail from Texas.”
Asked how he likes it, Yoos wrote, “It’s low battery use, it’s “supposed” to go about six years. It is the bottom of the line cheapest model  - he points to the back that says it’s from - but it’s just what I need. A lot better from markers, cuz those are very messy and are always drying out on me. Plus, no fumes.”  Many of his friends had difficulty reading the dark blue lettering against the black board but took the time to read his writings.

Yoos looked pale and drawn. During another break, he was asked how he feels. He wrote that his red nose and sniffles was the result of allergies.

Asked how he is holding up in general, Yoos wrote, “It’s been hanging over me for 26 months with over 20 court appearances counting the city ones – s’been hellacious – I’m not able to consider adopting a pup….”
Interview with Thurston County Prosecuting Attorney J. Andrew Toynbee

In a telephone interview this morning with Thurston County Chief Prosecuting Attorney J. Andrew Toynbee, who has pursued and argued the case against Yoos, Toynbee was asked what happens next. 

Toynbee said the case is scheduled to go to trial and Yoos could be convicted of assault of the third degree with a sentence of one to three months in jail, acquitted, or, he could accept a plea offer to a lesser charge.

“I’m not interested in sending Mr. Yoos to jail,” said Toynbee.  “I have made several attempts for plea offers in the past but Mr. Yoos’ attorney, Larry Hildes, has not entertained them.”

Asked why Thurston County is pursuing this case, Toynbee said, “We take assaults on officers very, very seriously, that’s the reason."
Asked what he wants from Yoos, Toynbee responded, “My goal is to have Mr. Yoos take some accountability for his actions.”

Asked why Sergeant Paul Johnson, the officer who was allegedly kicked by Yoos, did not testify, Toynbee said, “The motion only focused on one issue – whether law enforcement was discriminatory in their actions. Sergeant Johnson didn’t take action, he oversaw the situation after he arrived, but he would be called to trial. He could have testified, but it (the hearing) was going on and on….”

Asked if he thinks it’s a problem that Sergeant Johnson’s report is dated weeks after the incident, (it is dated June 27), and unsigned, Toynbee said, “No, I don’t think it’s a problem. Two officers, Costello and Wilson saw it (the kick).”

Asked how much Thurston County has spent thus far on Yoos’ case, Toynbee said he is a salaried employee and doesn’t know how much has been spent.