Idaho Criminal Defense Blog

Idaho Criminal Defense Blog

Information and Insight on Criminal Law and Civil Rights

How can it have been so long since I last posted? Answer – too much to do, too little time!

Yesterday I was complaining to Courtney and Will that we needed to get writing. “Why haven’t you two been posting anything to the blog? It’s not like there isn’t interest out there about our cases and the law generally!” Then I looked at my posts – or the lack thereof this year. Where does the time go?

Most recent court activities – just got off the phone and will have a DUI reduced to Inattentive Driving for a client with a .089 BAC. Anytime we can get someone’s charges reduced on a DUI that is a good thing. The client is thrilled, the prosecutor has a result he can live with and we got a little justice. The breathalyzer is not a perfect animal – there is a little wiggle room in there so a .089 might be less than the .08.

A couple weeks ago our client was acquitted of battery in a court trial. He was understandably delighted, and the decision was right. This was one of those cases where the complaining party was, well, a frequently complaining party within the neighborhood. Unload your camper that is temporarily parked in front of your house? She calls the cops and claims you are camping illegally or the vehicle has been abandoned. Smoke in your back yard? If that smoke is carried into her “airspace” she complains. And when some water sprayed from a hose made it to her, it was claimed a battery! The best part of the thing was her using a cane to come into the courtroom (“nearly blind”), but folding it up and putting it in her purse when she left the court. In any event the result for our client was those magic words – not guilty.

On another front we are waiting on the investigative report in the Yantis case. The wheels of justice grind slowly.

So there we go – an update. Next week we will talk about some law!

Record Number of False Convictions in 2015 – Who Says You Don’t Need the Best Lawyer You Can Afford!

After 35 years practicing criminal defense, I am sometimes cynical about our system of justice. Prosecutors overcharge offenses in an attempt to prompt a plea from defendants. Defendants are seldom “presumed innocent” in the eyes of the arraigning judge, many of whom impose restrictions on pretrial release that are as onerous as the penalty for the crime they have not been convicted of. And juries! Don’t get me started! Jurors are too tough to read when you start the trial – many want to be on a jury as part of their “duty” to protect society.

So when I read a NY Times article this morning that indicated a record number of inmates were determined in 2015 to have been wrongly convicted, I would like to say I was surprised. I was not. It reports that at least 149 inmates were cleared last year, and those inmates had served an average of 14 years behind bars for crimes they did not commit.

This is timely for me because last week I spoke to two potential clients about serious felony matters that might land them in prison for life. Life. One of them said he wanted to wait and see how good the state’s case was before spending money on a lawyer. Did I mention he was facing life in prison?

Just how is it that so many people have been convicted of crimes they did not commit? Here are three reasons that I believe account for most of those convictions.

First, science is now catching up with the evidence from these older cases. A defense lawyer today can have evidence tested for DNA in ways that simply were not available or affordable fourteen years ago. The same is true with false confession evidence, and misidentifications. There are expert witnesses available today to assist in the defense, and there is, I think, a greater opportunity available to get to the truth.

Second, when confronted with a potential monster sentence, many defendants cave. Most cases are settled. Hardly anyone goes to trial because prosecutors are happy to overcharge and then offer a plea bargain for a lesser crime, and recommend a lesser sentence. But beware the promises of prosecutors. Too many times those recommendations are of no assistance with judges who are eager to protect society. So a defendant is charged with rape, facing years in prison and a life of registration as a sex offender. He or she is offered a plea to felony injury to a child, and takes the plea to avoid a life time of prison. Later, the defendant tells a second lawyer that he or she pleaded guilty, but is actually innocent. False confessions happen, but getting that exoneration later is unlikely.

Third, there are too many lawyers who advertise they have serious criminal trial experience but do not. Clients get drawn in by inexperienced counsel who may have never actually tried a similar case. Experience matters. Ask that lawyer you are about to hire if he or she has actually been in a jury trial for your type of case. If the answer is no, keep looking.

Imagine spending 14 years locked up for a crime you did not commit. Or even 1 year. That news is sobering. The NY Times piece is worth the read.

Peterson Lawyers Join the Yantis Case

 

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We have joined with the Spence Law Firm out of Jackson, Woming and Paul Winward of Boise to represent the family of slain Council rancher Jack Yantis. An interview discussing the case is available from Channel 7 News here. Not certain that we are really “high profile” lawyers, but I am happy we are in the case, whatever the outcome. Jack Yantis should not have been killed for responding to a call from the Sheriff’s Office to take care of his bull that had been hit by a car. His death was entirely preventable. More info as we go. The poster pictured below shows Jack as the locals knew him – looking to help others and protect the ranch life in Council.

Bowe Bergdahl and the Serial Podcast – Court of Popular Opinion

SGT. Bowe Bergdahl will stand trial for Desertion and for Misbehavior before the Enemy despite the recommendations of the officer who presided over the Article 32 Investigation that a lesser proceeding is appropriate. Bergdahl left his post, was captured by the Taliban, was held 5 years and was only released when President Obama worked some magic and traded him for bad guys. But that is yet another story.

In another life, I was a military defense lawyer, an Army JAG. I still regard the safeguards within that system as better protecting the rights of defendants than the civilian systems (both state and federal) in which I practice today. Bergdahl’s Article 32 Hearing provided an opportunity to see the case and be heard on the evidence that is seldom afforded outside the military. The hearing is like a grand jury proceeding, focused on deciding whether there is probable cause to believe a defendant has committed a crime. The grand jury hearing is secret. The defendant is never permitted to appear, except to answer questions, without his or her lawyer. The defense lawyer cannot hear the evidence before the grand jurors or cross-examine any witness. A decent prosecutor can indict a ham sandwich because there is no judge and he or she chooses what evidence to offer. But an Article 32 Hearing permits an accused to appear, with a defense lawyer, and cross-examine the government’s witnesses.
The problem with an Article 32 recommendation is that it lacks any real foothold. The decision maker is the Convening Authority, the military unit commander. With stars on his or her lapels and a prosecutorial staff that can disagree with the findings of a hearing officer, the Convening Authority can simply go forward to trial. So it is here. The Army lawyer who presided at the Article 32 Hearing recommended a Special Courts Martial, where a one-year sentence would have been the maximum punishment. The Forces Command General Robert B. Abrams (the Convening Authority) disagreed and decided Bergdahl will face a potential punishment of life in prison.

Bergdahl’s lawyers will continue the fight, and nobody really knows how the case will end.

Bergdahl’s story, however, is being told in this years Second Season of Serial, the podcast from NPR that gathers millions of listeners to hear a tale unfold “one week at a time.” If you haven’t listened to Serial before, don’t wait. Get started. And as you listen to SGT Bergdahl’s story, consider the impact of two very important issues for the criminal case.

First, this is, as Serial’s Sarah Koenig says, the first time Bowe Bergdahl has told his story.

A great story well told can decide a criminal case. And the better told, more widely revealed story will trump just about any other move a defendant or lawyer can make toward those marvelous words, “not guilty.” No story and you get convicted. Skillfully relate your own version of the events and you may find justice. You may move the mountains of evidence against you.

Telling Bergdahl’s story is risky stuff for his case. Poorly told or exaggerated or unsupported by enough facts, the story won’t carry the weight of an acquittal. Sometimes the story behind the case leads to a conviction. And the story has to hook the listener so that he or she will want to help an accused. Revealed slowly and with purpose, Serial’s recitation of why Army soldier Bowe Bergdahl left his unit and was captured will likely influence potential jurors (court members in military speak) to free him or it may lead to his conviction. Unlike last year’s podcast, the actual court case will follow the podcast, so the cart may lead the horse, but where will it go?

Until I listened to the first episode a couple days ago, I had no idea that Bergdahl’s story focusses on his attempt to draw attention to his unit’s commanders. Does anyone other than Bowe Bergdahl say the unit was so poorly commanded its members faced greater odds than the usual risks of combat? Was he a whistle-blower or a deserter? After just one episode, I want to know more about his unit, its commanders, and the seemingly meaningless mission he describes.

Second,  I could not help but form opinions about Bergdahl based on how he told the story. I tend to focus on the story itself, but in fact, Bergdahl’s own voice may be just as important in deciding what we believe and what we discard. And here I must confess that Bowe’s narrative left me uncertain. Maybe his tone and affect were dull because of what he has been through. The Article 32officer heard the evidence and concluded that less charges were appropriate. Some military officials have defended SGT Bergdahl by pointing to the horrendous conditions from which he emerged after five years of beatings, torture and deprivation. His voice did not really move me.

Some politicians have called him a traitor, including the Donald, who like most of our politicians never served a day in the military. Mr. Trump has proclaimed that SGT Bergdahl should be executed, without a trial. An article in Rolling Stone implied Bergdahl was ashamed to be an American. When I listened to Bergdahl’s voice, I was not left with that impression. He was quiet, not brash or outlandish. And seemingly every right wing radio talk show host in America has opined that Bergdahl doesn’t deserve to have been traded for Taliban prisoners who were resting in Guantanamo. “We used to shoot traitors.” But that too misses the mark. The issue is not whether the trade should have been made, but rather, did SGT Bergdahl violate the law.

I want to hear something more in Bergdahl’s voice. Not just content, maybe not even context. I wanted to hear him speak in a way that would make me want to move mountains to right a wrong. And maybe it is there, buried deep inside him and afraid to come out after surviving his days with the Taliban. Maybe it is there but he is ashamed of what he did and simply unable to explain in his own words how he left his compadres. Or maybe it is not there at all.

I expected something that wasn’t there in the first episode. Maybe it will never be there. But I will wait. After all, what I heard was 45 minutes or so of selected conversations between Bowe Berghahl and a screen writer. So when I finish this I am going to listen to that first episode again, and be ready for episode two.

I hope that I will be moved.

I was never in combat. I am grateful that I served under very peaceful conditions, without any real risk to me. My military service was without the personal loss our service members have faced fighting terror. I will not judge Bergdahl yet, because he served under conditions that I know nothing about. In fact, I may never really judge him, but I will keep listening to Serial, and I will watch to see how the case progresses through the military justice system as I will wait to see if his story can move an audience of listeners, most of whom are skeptical.

All of this is not lost on the news media. The Washington Post asked yesterday whether Bergdahl’s appearance on Serial altered the Army’s decision-making. Did the Army go hard because Bowe decided to tell his story? Was Bergdahl’s story so good that the military could not risk anything less than a full assault by General Courts Martial?

When I was an Army JAG someone said that military justice is to justice what a march is to music. I never found it to be so and I certainly hope the system works better long term than it has so far. Bergdahl, meanwhile, may prevail or fail in the court of public opinion through Serial. Keep listening. And as the case proceeds, we will consider the evidence, and the prosecution of SGT Bowe Bergdahl.

Best Lawyers In America – Since 2008

We are happy to announce that Peterson Lawyers has been selected by Best Lawyers for inclusion in its annual Edition of Best Lawyers in America as a Tier 1 for our work in criminal defense. This selection is based on the review of our peers, and it is gratifying to be acknowledged in this way. The law firm was likewise included last year.

Charles Peterson has been selected for inclusion individually in the criminal defense areas of white collar crime and non-white collar crime since 2008.

Both honors really reflect on the entire gang. Way to go Courtney, Will and Patty!

That “Fog Line” is Actually Part of the Lane – DUI Case Reversed!

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Idaho’s Supremes have decided, in a 3 – 2 decision, that the line on the side of the road is actually part of the lane, so an officer unreasonably stopped a driver because he had driven onto that line twice. That decision results in suppression of the evidence needed by the State for its DUI case.

The case goes back to an arrest of a driver in 2012, who had, according to the officer, twice driven onto, but not over the “fog line.” He was stopped, given field sobriety tests, and then a breathalyzer. He was charged with driving under the influence. In court, the magistrate judge suppressed the evidence needed by the prosecutor for the DUI, concluding there was no traffic violation justifying a stop. If the stop is bad, the evidence resulting from that stop gets suppressed and can’t be used at trial. A district court judge sitting as an appellate court reversed the decision of the magistrate, and found that when the driver drove onto the line (it was actually the line marking the bicycle lane), he committed a driving infraction, thereby justifying the officer’s stop. A stop has to be based on facts supporting a reasonable conclusion that the law is being violated. A stop based on less is unreasonable, and a violation of the constitution. The Court of Appeals upheld the district court’s decision, and the driver appealed his case to the Idaho Supreme Court, which reversed the decision because it found the traffic stop was unreasonable.

 

A traffic stop is a “seizure” under the constitution, so it must be reasonable if evidence from the stop is going to be admissible at trial. An investigatory stop is permitted when an officer has facts giving rise to a reasonable suspicion a crime has occurred or is about to occur. Here, the state argued that the officer made a valid traffic stop because the driver had driven onto the line and therefore out of his lane. A second justification for the stop was that the officer reasonably concluded he was driving under the influence of drugs or alcohol based on his “driving pattern.” But the officer testified that other than driving onto that line, there was nothing about the driving pattern that led to a conclusion the driver was under the influence. A review of Idaho’s driving rules and statutes ended the discussion for the Court – the line is part of the lane and therefore part of the road, so driving onto it is not proof that you have either violated the law or are under the influence. Evidence suppressed. No DUI. Game over. Check out the case here.

So what should we take away from this case?

First, don’t be afraid to take your case to court. The truth is our system relies on people settling their cases to keep the cases moving smoothly. The driver here did not settle – he fought the man and the man lost! It happens!

Second, understand your rights as a driver. An officer must have articulable facts indicating you have or are about to violate the law to stop you. If you are stopped, don’t argue that point with the officer. He or she is just doing his or her job – and that job is tough enough. Give the officer a break and hire a lawyer to fix it in court.

Third, take some time to understand your duties as a driver. Idaho law sets out some pretty specific requirements – like drive in the right hand lane – and we all need to follow those requirements to make driving safe.

Have a question about a traffic case or a DUI? Give us a call.

The Idaho Rider Program

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Cue the intro: “Knight Rider, a shadowy flight into the dangerous world of a man who does not exist. Michael Knight, a young loner on a crusade to champion the cause of the innocent, the helpless, the powerless, in a world of criminals who operate above the law.”

Sorry, this post has absolutely nothing to do with the 1980s TV show “Knight Rider” but I couldn’t help myself. Today’s post deals with an interesting Idaho specific legal option available in many felony cases: The “Rider” program.

In the past, when a defendant is convicted of a felony charge in Idaho, the judge has only two options available at sentencing: 1. Send the defendant to prison, or 2. Place the defendant on probation. As a middle ground, the courts in Idaho have developed a third option when it comes to sentencing felonies: The “Rider.”

A Rider is more serious than being placed on felony probation but provides the defendant with an opportunity to avoid prison. When sentenced to a Rider, the judge will “retain jurisdiction” over the case. This means, if the defendant is successful in completing the Rider program the Court may decide not to impose the remaining prison term but place the defendant on probation instead.

Generally, when sentenced to a Rider, the defendant will first be placed at the “Receiving and Diagnostics Unit” (RDU).  While at RDU, the defendant is assessed for the best possible programming based on the particular circumstances. This includes, for example, the “CAPP Rider” and the “Traditional Rider.” The CAPP Rider is a program designed for defendants with substance abuse issues. A Traditional Rider is for programming for cognitive and behavior issues. At the time of sentencing the judge may recommend a specific type of Rider, but this recommendation is not binding. The RDU may assign the Defendant to the programming it deems to be the best fit.

Once assigned a specific Rider, the goal of the defendant is to complete the programming without any issues. This means the defendant should be on their best behavior. One screw up during this time may be the difference between a future on probation and a future in prison. A Rider is the Court’s way of providing the defendant with one last chance, it is a gift, and as such the backlash for poor behavior is swift and harsh.

When the defendant has completed programming, the Court will order the defendant to be brought back for a “Rider Review”.  The Idaho Department of Corrections will draft a report of the offender’s performance during the Rider, along with their recommendation to the Court. The defendant’s attorney will make the argument as to why the defendant deserves probation and the Court will then make a decision as to whether to place the defendant on probation or to send them to prison.

Anyone facing felony charges should be represented by an attorney. Any wrong slip and a defendant who could have received probation will end up on a Rider, or worse yet, a defendant who could have received a Rider will end up in prison. You should also have an attorney to represent your interests at a Rider Review. The stakes are high in these cases and it is important to have someone vigorously represent your interests.

Should You Refuse The Breathalyzer?

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Now that we are finished with the recent trial, my nightmares involving exhibits, motions, and objections are beginning to subside, and things are starting to settle back into the normal daily grind; I figured it was time for me to sit down and get back to posting on our blog.

Today’s post covers one of the most common questions I get from clients, friends, and family: “If I have been drinking and I get pulled over, what should I do?” Unfortunately, it is often the case that by the time I am asked this question…it is already too late.

Prior to becoming a lawyer, I was given some interesting advice: If you are ever pulled over and you have been drinking, “don’t walk, don’t talk, and, most importantly, don’t blow.” While this may have been the correct approach at one point, I have recently begun to question the wisdom of this advice.

According to Idaho law, you have the right to refuse the breathalyzer. Many people believe this will make it harder for the State to convict them of a DUI or that a blood test will somehow “prove” they were under the legal limit. The reality is that it may be the exact opposite.

The first problem with a breathalyzer refusal is the automatic drivers license suspension – your license will be suspended by the Department of Motor Vehicles for one full year. This suspension is absolute, meaning no privileges will be provided for driving to and from work, school, or medical appointments; you will not be allowed to drive at all for that full year. This is quite a large punishment considering that a first time offender who blows over a .08 would only have their license suspended for a minimum of 90 days and only 30 of those days would be absolute. After the first 30 days most drivers can apply for a restricted license to get to work, school, and medical appointments.

The second problem is the belief some Idaho drivers have that refusing the breathalyzer will make it more difficult for the State to prove driving under the influence. Wrong. With Idaho’s “implied consent” law you may actual make it easier. Idaho Code Section 18-8002, says:

“Any person who drives or is in actual physical control of a motor vehicle in this state shall be deemed to have given his consent to evidentiary testing for concentration of alcohol…or other intoxicating substances, provided that such testing is administered at the request of a peace officer having reasonable grounds to believe that person has been driving or in actual physical control of a motor vehicle in violation of the provisions of section 18-8004, Idaho Code [DUI], or section 18-8006 , Idaho Code [Aggravated DUI].”

This means that even if you have already refused a breathalyzer test, a police officer, with probable cause to believe you have been operating a motor vehicle under the influence, may be able to forcibly take and test your blood to determine your BAC (having your blood drawn against your will is not a happy process). In the end the police may still receive the exact evidence you were trying to prevent them from obtaining.

On top of the fact that they now have the exact evidence you were trying to avoid them from obtaining, a blood test is more accurate and harder to defeat in court. We are seeing more and more of these “refusals” turn into blood draws that result in an “excessive” DUI (a BAC of .20 or higher). Say, for example, the blood draw comes back as a .204. The accuracy of a blood test leaves little to no margin of error that may create reasonable doubt as to whether or not your BAC was actually over .20. The eventual effect of this is that our only option may be to mitigate the consequences of an excessive DUI instead of negotiating the charge down to a standard DUI.

In the end it is your decision, but it is no longer as simple as many people believe. The best decision is always – just take a cab! A cab fee is a small price to pay to avoid all the possible negative effects of a driving under the influence (which can include your death or the death of another). However, if you make a poor decision, as people who have been drinking frequently do, feel free to give us a call. We would be happy to talk to you about your case.

Fazliddin Kurbanov Found Guilty – Looking At Terrorism In Idaho

Fazliddin Kurbanov’s trial is over, and as quickly as it began, most people will forget about the issues raised in court. A jury found that Fazliddin had agreed with a person identified as “Ahmadi” to provide material support to the Islamic Movement of Uzbekistan. He had not sent them the money they asked for or the software they wanted to protect their website, but he had communicated with them, and much of what he wrote sounded like he wanted to help them. The jury found he had the makings of a bomb, and that he attempted to provide himself to the movement. But what did the IMU really stand for a couple years ago? Were they freedom fighters headed back to Uzbekistan to throw out the Karimov regime or were they simply terrorists, hell bent on using Islam as an excuse for inflicting suffering and death on innocent nonbelievers? Either way, the American justice system had little stomach for Fazliddin’s apparent willingness to help.

I took this case knowing almost nothing about the circumstances in Uzbekistan. In truth, I needed a map to find the place, and a history of the country to understand the complicated nature of its people and their ruler. This much seems clear to me, the Karimov government has terrorized the people of that land. There seems too little freedom for Uzbeks under his regime and at least one refugee told me that the people were likely better off when the Soviets ran the place. Hope does not spring eternal there. The government suppresses free speech, quashes dissent, and kills those who it opposes. President Karimov is universally held responsible for the Andijan massacre, leaving rivers of blood and piles of corpses. He had hundreds of his own people killed for no reason. More recently the former ambassador from Great Britton has written that the regime boiled its enemies – and they published the grisly pictures for the world to observe.

Terrorism in any form is evil. Whether sanctioned by a government or promoted as a religious duty, the killing of innocent persons grieves us all. Oppose it when you can. Call it out as you see it. And do not support those who do either.

I am mostly sad for Fazliddin Kurbanov’s family. His wife will likely raise their young son by herself. His mother and sister cried in my office last night after the verdict was announced. Theirs were tears for a dead husband, brother and son. He is alive, but he will never live the life they envisioned. His father misses him too. I am a father, and the thought that I might never hug my son again would break me. And I am sad because his life seems wasted. He is bright and articulate and he seemingly had the golden ring when he landed in America, but the rights we have here come with responsibility. Our people will always act to protect our land and our families.

If the jury got it all wrong, and I believe they did, it was not their fault. They saw a young man who spoke about targeting this country, and who gathered up chemicals and a grenade body. They figured he intended harm. More likely he got caught up in a whirlwind of deception. They saw danger and were afraid. I wish they had seen the young man I have known for the past two years. Perhaps they would have let him go.

I feel like a turtle, on its back, in the middle of the road!

Two weeks to go – and then another six or so to sanity. This is the way it goes every time I prepare for a big trial. I try to not let it get me but it always does. And my compadres at the office, my blushing bride of nearly forty years, and anyone who happens to get in my way as I rush from one “must do” to the next. Run!

Uh… I can’t run. I am a turtle on my back in the middle of the road and that is a line of cars (let’s go with Porsches) headed at me full speed! That parade of 911s is actually the government, ready to roll over me and try to crush my client. Maybe. Or maybe not. As always this is just another opportunity.

But I have decided to stay here today. In McCall. With my wife, my life and my computer. And a bunch of really tall Ponderosa Pines that whisper “stay here, don’t go.”

I am not going down to bake in the valley … until tomorrow.

Two weeks.

In other news, our office has joined with Ron Simon to file lawsuits against the Boise Co-Op for victims of Salmonella food poisoning at its North End store and  the airport. Food poisoning is serious business and Simon is an uber-serious lawyer who specializes in this particular niche. How serious? He has recovered over $600,000,000 for clients similarly injured. That is serious, and he is very well regarded within the lawyer community. Happy to be on board with him in this. for more information contact Ron Simon directly at (713) 819-8116 or ron@rsaalaw.com. Or you can always give us a call at 342-4633.

And in NY – one down, one on the run.

OK – that is dark enough. Time for a little run and then a couple hundred questionnaires to review. On the deck. In the pines. And maybe a little splash in the lake.

 

 

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