Yoos Case: Motion To Dismiss Denied

Yoos Case: Motion To Dismiss Denied

By Janine Unsoeld
www.janineslittlehollywood.blogspot.com

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 www.janineslittlehollywood.blogspot.com).

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.

Later:

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.

Later:

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.

Later:

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.

Later:

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 www.improveelectronics.com - 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.

 

Scott Yoos Trial Scheduled For August 13

Above: Scott Yoos, center, stands outside the Thurston County courthouse on Wednesday with supporters, prior to his pre-trial hearing.

Scott Yoos Trial Scheduled For August 13

By Janine Unsoeld
www.janineslittlehollywood.blogspot.com

The Thurston County Superior Court trial date for Scott Yoos, an Olympia citizen accused of a felony assault against a police officer, has been scheduled for August 13.

Attorney Larry Hildes represented Yoos at the hearing held on Wednesday, April 18. Hildes took the Yoos case in February, and told Judge Carol Murphy that he needed more time to review his client’s information. Citing his existing workload and a recent vacation, Hildes said he had been unrealistic about the file he inherited from Yoos’ previous attorney and needed more time to gather information for the case. The judge issued an order of continuance.

Hildes submitted to the court a lengthy list of discovery requests, which includes disclosure of all police reports and logs related to the arrest, a map of the patrol area for the officer initially responding to the incident, and copies of all training materials for the police department on how to deal with deaf, hearing impaired and mute individuals, and disabilities of any kind.

Yoos, who pronounces his last name like “Yose” as in ‘Yosemite’ (National Park), is mute and typically uses a white board and marker or a pen and paper to communicate with other individuals. He can hear, and also uses sign language.

Before the hearing began, Yoos wrote a message to this reporter, saying, “…I’m hopeful and grateful that Larry and Karen (his wife) drove clear down from Bellingham.” About the new trial date, Yoos wrote, “We’re doing it several months in the future so that we have ample time to present motions.”

During the hearing's time frame in which several other cases were heard before Yoos’ case, prisoners in bright orange jumpsuits, tightly shackled with handcuffs around the hands and chains around their waists and feet, shuffled forward to the podium with their attorneys and were greeted and questioned by the judge about their cases. One prisoner wore a grey t-shirt that read, “Thurston County Sheriff’s Office Work Crew Inmate.”

Yoos, who is free and wore regular clothes, communicated with his attorney using a white board and blue marker and frequently used a rag stuffed in his left side pocket to erase his messages.

The Case Against Yoos

According to police records, Yoos was initially cited for criminal trespass and obstructing justice on June 1, 2011 at 2302 Fourth Avenue, Olympia, at 2341 hours. The property is the site of Twister Donuts.

The case originally was to be heard in the municipal court of the city of Olympia.

In his police report, Officer Randy Wilson writes that he saw Yoos enter the parking lot and go towards the Dumpsters and a fence by Curtis lumberyard.

“By the time I entered the lot, Yoos was behind the dumpster. Yoos tried to leave and I physically had to stop him. I learned he used sign language, so I assumed he was deaf. I began to communicate via notepad. I wrote down he was being investigated for criminal trespass. Yoos got agitated and refused to ID himself. While writing with him, he tried to leave on his bicycle at least 3 times. We tried to get him off his bicycle and he resisted. He was taken down to the ground and handcuffed. I later learned from Officer Watkins that on 8/10 Yoos had been trespassed from the property by Officer Hincichs. See C&I.”

Copies of Officer Wilson’s and Yoos’ handwritten questions and answers to each other include: Wilson's - “Do you have ID?" and "Write your name and birthday down” and Yoos' - “What have I done wrong?” and “I threw away a bag, is that illegal? You’d rather I littered?”

According to the police report, Yoos is 5’9 and weighs 155 pounds. Police reports detail the incident and actions by the four Olympia police officers who responded to the scene, Officers S. Costello, Jason Watkins, and Randy Wilson and Sgt. Paul Johnson.

Officer Costello’s report indicates that Yoos was “using sign language in a way that looked like he may hit one of us. He was slapping his hands and motioning wildly at us. I summoned Officer J. Watkins via police radio because I know he can communicate using American Sign Language.”

Officer Costello’s report goes on to explain that use of force was used to take away Yoos’ bicycle and take Yoos to the ground: “I laid the bicycle down and noted that Officer Wilson was trying to take Yoos to the ground. He’d become resistive at that point. As I got clear of the bicycle Officer Wilson was trying to use an arm bar technique to get him to the ground. As he was going to the ground I grabbed his right wrist area. Officer Wilson secured his left arm and I grasped his right wrist. Yoos was rolling on the ground and was still resisting us. I used my right knee on his neck and applied pressure, keeping him on the ground. Officer Wilson was able to secure Yoos in his handcuffs.

Officer Watkins’ report states that he knows American Sign Language, “…but I am only conversational and not certified as an interpreter or anything else.” He describes helping Officer Costello with standing Yoos up and subduing Yoos when he continued to resist the officers.

The Watkins report reads, in part: “While Officer Costello was searching Yoos I maintained downward preassure (sic) with my right arm along the upper portion of Yoos’ torso in order to keep him in the bent position and a position of disadvantage because he had been actively resisting. Yoos tried standing straight up a couple of times but I was able to maintain control of him. Yoos was screaming but not saying anything while he was being searched…."

Watkins later writes, “Yoos was placed into a temporary cell in preparation for booking and I re-contacted him there....I asked Yoos if he could hear and using only sign language he told me he was hard of hearing and in 1984, he suffered a head injury that made it so he was mute. Yoos told me he signed using English sign language rather than American Sign Language which is what I’m familiar with but we were still able to communicate….After I had cleared the Jail I was later called back by Corrections Officer Johnson. When I arrived Yoos had been released and was just outside of the Jail’s parking lot. I was told Yoos needed clarification regarding he had to go to court services tomorrow at 0830 hours, to obtain a court date and that is what I explained to him again using both my voice and sign language.”

Report by Sgt. Paul Johnson

According to a report, City of Olympia Sgt. Paul Johnson is the one who accuses Yoos of kicking him. His report is dated June 27, 2011. The incident occurred on June 1, 2011.

In part, his report reads, “Officer Costello transitioned to a gooseneck counter joint technique and applied pressure. Yoos at this point lunged toward me lifting his foot impacting my left thigh. The impact pushed me back at which point Yoos using the same foot kicked the headlight of a nearby patrol car attempting to break it. I advised the officers I was fine and suggested taking Yoos to the hood of patrol car. Yoos’ upper torso was then forced down onto the hood of the vehicle and was re-secured in handcuffs.” According to the report, Yoos was then transported to the Olympia police department for processing, booked, and released.

As a result of Johnson’s report, Yoos’ case was bumped up to the Superior Court of Washington in Thurston County. In a document dated August 8, 2011, Yoos was charged with three counts: assault in the third degree, a Class C felony; criminal trespass in the second degree, a misdemeanor; and resisting arrest, also a misdemeanor.

Yoos' Supporters Speak Out

On Wednesday, friends and supporters of Yoos met at the courthouse prior to the hearing to express their support for Yoos. About a dozen went into the courtroom with Yoos to witness his pre-trial hearing.

Yoos supporter John Newman said, “Being charged with assault at taxpayer’s expense is unjust. Scott’s been a great local volunteer in the city of Olympia for several nonprofits. I think he was innocent and wanted to go home.”

Aaron Zanthe also expressed support for Yoos. “I’m definitely supporting Scott. I’m a friend and an advocate for people of neurodiversity. He came to a community event I organized. I find his story very moving. I’m well-adjusted to listening to stories of people who face abuse and aren’t capable of defending themselves, and this is reflected in my work. I find it distressing that Scott was assaulted by anyone, especially those entrusted with public safety and that his sign language was interpreted as a sign of aggression.”

After witnessing the hearing, supporter Chris Stegman said, “The whole thing reeks of an unjust system gone awry, a cover up of police misconduct and an overreach of authority and inappropriate detention, the threat of which is what led Scott to try to escape the scene in fear for his safety. How would it feel to the average person to be detained by up to four armed police officers at 11 pm in a dark alley out of public sight, all for throwing some paper napkins in a city of Olympia Dumpster? I'm ready to peacefully riot if this case goes through and he gets convicted of any felony, for resisting arrest, obstruction of officers duties, or whatever. This is a gross miscarriage of justice that it has gone this far without being dismissed.”

An Interview with Scott Yoos

After arranging for an interview time and place through text messaging and email, I sat down with Yoos for an in-person, hour long interview today. I asked him about the police reports, showed him specific passages I had questions about, and asked him for his thoughts.

The process was time intensive, as I do not know sign language. I had to be patient and let Yoos write his answers to my questions, and not interrupt him if I thought I knew what he was going to write. A few times, I did interrupt. Sometimes it helped, sometimes it didn't. Yoos often nodded and laughed if I guessed what he was going to write. When I didn't guess correctly, Yoos seemed to hide what he was writing until he was finished, then showed me his complete thought. He used two full sized pieces of paper and covered both sides, twisting and turning the pages around, covering the white space.

This is what we were able to accomplish:

I looked at Yoos directly and asked him if he was hard of hearing. He wrote, "Never. I've been mute since 1984 due to a severe head injury."

I referred to Office Watkins' report where Watkins wrote, "I asked Yoos if he could hear and using only sign language he told me he was hard of hearing and in 1984, he suffered a head injury that made it so he was mute. Yoos told me he signed using English sign language rather than American Sign Language...."

In response, Yoos wrote, "He misinterpreted my sign - I'm most comfortable with S.E.E., not A.S.L."

Yoos then wrote, "There is really so much to say. I've been stewing in this for nearly a traumatic year."

Yoos pointed out the words Officer Costello used in his report, "He was slapping his hands and motioning wildly at us." In response to this, Yoos wrote, "I really resent their choice of words. Anything to make me sound crazy and violent. I was merely trying to communicate via sign."

Yoos also took issue with Officer Costello's report and the words, "I laid the bicycle down..." In response, Yoos wrote, "He tore my bike from underneath me and threw it to the side."

When I asked Yoos why he and Officer Wilson shared the same notebook, Yoos wrote, "They took my pen."

When I asked Yoos how long it took for Officer Watkins, who knew sign language, to arrive to the scene and if he helped, Yoos wrote, "By the time he arrived to "help" I was handcuffed."

Yoos also wrote, "What happened to me that night was entirely undeserved, and too many half-truths and bald faced lies have been told about my behavior, to allow it to remain unchallenged. This is why we need to push for video surveillance of arrests. There needs to be something to "police" the police! It's a matter of public safety. I believe that video coverage would have entirely vindicated me and would have gotten the O.P.D. (Olympia Police Department) in trouble."

Yoos also wrote, "I'd like to point out/emphasize that I was merely a bicycle commuter headed home. I was wearing a reflective orange vest and had a red blinking light on the rear of my bike. If I'd been doing something criminal, I wouldn't have been dressed to be seen!"

Finally, Yoos wrote, "I'm so grateful for your interest! There are so many people and things which I love about this town. A militarized police force and their stormtrooper mentalities is not one of them!" Yoos also wrote that he has a support group address on Facebook and wanted me to include that information in my article.

A legal defense fund has been set up to cover attorney's fees for Yoos' defense. Donations can be endorsed to "Scott Yoos - LDF" and walked in or mailed directly to: Scott Yoos – Legal Defense Fund, c/o Washington State Employees Credit Union, 2302 Harrison Ave NW, Ste 201, Olympia, Washington 98502. Donations can also be made online at https://donationpay.org/scottyoos/. Supporters say 100% of the amount donated will go to the Scott Yoos Legal Defense Fund.

A Facebook account has been set up at http://www.facebook.com/pages/Scott-Yoos-Support-Committee-Legal-Defense-Fund/222716127776108 or you can just type Scott Yoos Legal Defense Fund.

Supporters have organized a fundraiser for Yoos on Sunday, May 20th at 7:00 p.m. at Traditions Fair Trade, 300 5th Avenue, in downtown Olympia, for an event with singers, spoken word artists, and musicians. Pie and food will be provided for free.