Idaho Criminal Defense Blog : Boise Idaho Criminal Lawyer & Attorney : Chuck Peterson Law Firm : Civil Rights, Trial, Felonies, Assaut, DUI : Boise, Idaho Falls, Pocatello, Idaho

Years ago I was getting ready for a monster trial - pitting the ultimate power of the United States against a little guy who held out in the face of an all out attack on his home. People died. Protestors gathered. Television cameras rolled and major magazines wrote headlines in anticipation of an almost certain end. Tanks and helicopters ferried officers  and snipers about until the thing finally ended. 

As the time for trial neared - nearly nine months after the siege - the question of whether we could settle the case arose. The Sage - a burley mountain man of a lawyer who was our leader - looked me square in the eyes and said it best: 

"We only go to trial if we have to. If we can settle any case and walk away with our heads up, that's what we do."

To win your case at trial you have to know if it can be won. Then again - what is winning?

If you are charged with aggravated assault with a deadly weapon (pointing a gun at someone, a felony) and the government offers to accept a plea to simple assault (a misdemeanor), should you go to trial? I suppose it depends on your tolerance for the pain of a possible felony conviction. Sometimes you know that what you did went too far, and you can swallow a little crow and pay a small price to avoid the possibility of a felony conviction. Sometimes you can't. And sometimes the government makes that decision for you - they refuse to negotiate and settle. 

Then you try your case.

Here's the starting point: is there an alternative to trial? 

Last summer we prepared for a wrongful death trial in Wyoming. Our clients had lost their son while he was skiing at a well-known ski resort. This was the second such case we had handled against that resort in the past five years or so. In each case, the lawyers were the same, the decision-makers were the same, even the experts were the same. Two lives lost. Families destroyed. The ski industry almost never settles until you are almost at trial. They spend money defending their industry, even in the face of an unnecessary death. 

The case settled just a few weeks before the trial was to start. Why? Because each side understood the risk of going to trial. We all knew that juries are impossible to predict, regardless of how many mock trials or focus groups are done. And we did not have to try the case to win.

Our clients had already lost their son. They wanted a resolution that mostly included an acknowledgement of their loss and the defendants' partial responsibility. A mediated settlement achieved that solution. 

If you have a case - civil or criminal - and a trial is your only way out, by all means, go and fight and do everything you can to "win." But after 31 years in the courts, I can tall you the Sage is right. If there is another solution, explore that option first. 

Think you have a civil case? Wrongful death? Personal injury? Wrongful discharge? Or a criminal matter? Maybe we can help you win - whether you go to court or not.

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 I spent the weekend at a seminar that paired younger lawyers with more seasoned "mentors," lawyers and judges who generally had more gray hair than not. There were criminal lawyers and civil lawyers, district judges, a Chief Justice of the Supreme Court and a Ninth Circuit legend. The focus of my group was communication. If the jurors don't understand you - whether you are the lawyer or the litigant - you cannot win.

To win, you must tell your story in a way the jury will understand.

Here are three things I took away from the weekend:

First - we lawyers are Normans, speaking to Saxons, and without much luck if left to our own devices. Special thanks here to Hon. Jon Shindurling, 7th District Judge. "It all goes back to the Norman conquest..." I think he's right. The educated Normans conquered the Saxons and they became the educated ruling class in Europe (and America) ever after. Think Downton Abbey - upstairs, the Normans, downstairs - Saxons.

Most of us started as Saxons and learned the language of the Normans in college and law school. The problem is our juries are largely composed of Saxons - so we have to focus our language to communicate better with the folks who will decide the case. If your jury cannot understand you, you cannot move them.

Second - there are a lot of really great trial lawyers in Idaho! I watched a couple of closing arguments made by presenters with big skills. Nice to be among them for the weekend and it was encouraging to see how much time was willingly exchanged to help all of us get better at this craft.

Third - I would pay money to go and hear Hon. Randy Smith (9th Circuit) speak. He is a legendary trial lawyer who became a state district judge until lightening struck, and he ascended to the Court of Appeals. I hope to soon post a copy of his handout on standards of review for appeals. He was brutally honest about the likelihood of succeeding on appeal, as well as the obligation of the trial lawyer to understand and apply the correct standard of review. His message left me more convinced than ever that you must win your case at trial. You cannot wait for an appeals court to "correct" the jury.

Now back to work - I've got bad habits to erase and cases to prepare.

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 You may recall that last summer, local politico John McGee was ordered to spend at least 44 days in jail before being eligible for either work release or the Sheriff's Inmate Labor Detachment. This was not how the sentencing was expected to go. McGee had a plea agreement! A deal!

We lawyers warn our clients that the judge is not bound by the agreement but I have occasionally soft pedaled that truth. After all, a judge going beyond what the parties recommend is extremely rare. When that happens, there is usually a deafening silence followed by the "whiskey, tango, foxtrot" moment. 

It apparently happened that day last July. McGee was to be the beneficiary of a deal that was negotiated by the prosecutor and defense counsel. That deal called for McGee to do five (5) days in jail, not 44 and certainly not 88 as the court ordered. Mr. McGee actually served 44 days before his release, but that result depended upon the good graces of the court and the good actions of the former State Senator. 

Maybe Judge Cawthon had simply had enough of the McGee's misdeeds, this time while on probation following the mother of all plea agreements for his plea to DUI in 2011. The Court said it was simply making McGee accountable to the same degree any other public servant should be accountable. McGee had promised to obey the law, at least until July when his probation would have ended. 

Actually, the take away here has nothing to do with the pratfalls of Mr. McGee. He has completed his service and done so with dignity. He didn't go nuts or whine about that unexpected jail sentence.

Just remember this - the Judge is really NOT bound by the plea agreement. He may go above or below the anticipated sentence. Mr. McGee, the prosecutor and defense counsel all expected that Judge Cawthon would follow their recommendation. He didn't, and McGee was cuffed and lugged away to begin his sentence while he and those around him could only wonder why it hadn't gone as planned.

I had this happen to me and it hit me and my client hard. The deal called for my client to plead guilty to a felony in exchange for a recommended sentence of 3 years fixed and 5 years indeterminate. He pleaded guilty. The State recommended 3 fixed and 5 indeterminate. I argued my client was much misunderstood, but had done what needed to be done.

The Court imposed a 20 year sentence - 8 years fixed and 12 indeterminate. That was 8 years and four months ago. My client is now out, and he served his time honorably as evidenced by the fact that the parole commission sprung him before topping out at 20 years. But when he arrived in court that morning neither he nor I expected him to leave for an eight year prison term.

My point here is that even the best agreed upon sentencing recommendation may run into a wall. Judges, lawyers and defendants do not always play from the same sheet of music. When this one was over, Mr. McGee served his sentence honorably, and the Court may permitted him to leave jail at 44 days. And nothing here is intended to infer anything about the court or the lawyers. They simply saw it differently. Mr. McGee made decisions and he had to live with them. The same is true in every case.

SuperLawyers not withstanding - there are no guarantees in most plea agreements. 

So what about that plea bargain they have offered you? Or your loved one? Will the judge follow the agreement or not? Find out what you can do to make it more likely you get the benefit of the bargain by checking other posts in this blog on sentencing. You can also start by reading the post just prior to this one on humility!

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 A couple  weeks ago I had a sentencing in front of a District Court judge on the case that attracted a little bit of attention. The cause of that attention was my client's appearance in his police photo. He didn't really look all that "innocent."

In fact, many people would simply have generalized much about him based on the tattoos he carried.

Regardless of his many tattoos, I really like this guy. He is pleasant and smart, and he has a quick sense and wit. And he has a couple of prior felony convictions that had landed him in prison.

Based on his appearance and his prior felony convictions, most people likely figured he was headed back to the penitentiary. The crime itself was an aggravated battery in which another young man had been seriously injured.

From the beginning, however, my client had taken full responsibility for his actions. A bar fight ended badly with one punch. The result was a broken jaw and roughly $30,000 in medical bills that needed to be paid. My client was not rich, but he had a job and he had great empathy for the victim. True - the victim had been somewhat responsible for the punch that left him "wired for sound," but my client really felt bad about the injury.

And my client has a son. That's right - a young son who he loves more than any tattoo, or money or anything else. And through that young son my client's entire life has changed. The stuff that mattered to him before the birth of his son was of little consequence once that boy had been brought into his life.

It is interesting how important our children are when we are facing "legal consequences" for our actions. In this case, he told the judge that he was completely at fault and his only concern now is making the matter right. He wanted to do everything he could to make life better for the victim and by doing so, to set an example for his son. He said he did not want his son to follow the path he had taken, he hoped his son would avoid spending time behind bars.

When the judge sentenced my client, her first impression was based on his humility, not his ink. She liked him as I had predicted she would and the sentence she ultimately imposed did not include any jail time. He would do what he had agreed to - pay for the medical expenses - and give back to the community. Jail time was held in abeyance - and if he can get that all done in the next few months he will not likely ever go to jail.

Here's the bottom line - be humble. If you made a shambles of your life, admit it. Come up with a positive solution to the problem you created and be willing to take immediate responsibility.

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 Ok - I didn't plan for this to happen again. I was going to blog every other day, or maybe three times a week. I would write about the stuff that people ask me, but then there was work. Phone calls clog my day because I violate the main rule of running my own practice, I keep answering that phone. 

"Hey - can you help me? Can I get a consultation on my case? My public defender won't answer his phone so I don't know what's happening...."

Rule number one for lawyers in private practice is to get the potential client in the office. Do not give away information! Get them in and then convert them to clients. Paying clients!

But the truth is that most of the time I cannot help myself. I want to take the call and hear about the problem facing the person on the other end of the phone.

So if you look at the number of posts since October, you will see that there were more twisters in Minnesota than posts on my blog.

But I am back on top, at least for tonight!

So here was today's top question: if the cops stopped me but without a warrant, can they use the evidence they seized from my car? 

Like, what evidence?

A bong, some marijuana and a scale. And they said I was driving under the influence, but I was not.

Answer: As the Supreme Court said so long ago, "cars are different." Mobility makes a "search" somewhat more easily reasonable for a moving object than say - a garage. If your car was searched, perhaps by a police dog that alerted for the presence of contraband, there will likely be an exception to the warrant requirement. That will likely make the evidence found in the car admissible. All of which may make it more likely that you will face a potential problem if charged with possession or perhaps, driving under the influence. 

Bottom line here - go see a lawyer. A criminal defense lawyer. And hope that you get one who can help you through the mud of the system. 

And out the other side.

Now that was better - a little wisdom and its time for bed.

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 The United States Army has announced that it will seek the death penalty in the murder trial for SSG Robert Bales. Bales is accused of killing 16 civilians in Afghanistan, 9 of which were children. In a news story published today, that writer points out that although 16  servicemen have been sentenced to death since 1986, none been executed since 1961. The case is particularly news worthy in the Northwest because Bales is being held at Joint Base Lewis-McChord, outside Tacoma, Washington.

I have not posted anything to this blog since October, in part because I was appointed lead counsel in a death penalty case in Canyon County about the middle of that month. For sixty days I worried about whether the county would in fact seek the death penalty. While prosecutors cogitated on the complexity of imposing the ultimate sanction, we did research and read reports and went to a seminar to "update" ourselves on all the issues. As I write this, and am headed today to see my client, the death penalty has been taken off the table. The case will go forward without the ax hanging over our client's head. 

For that, I am thankful.

Every case, whether routine or extraordinary, presents unique challenges. Here are two tips for lawyers and clients when dealing with the stress of criminal trials:

First, get a good grip on the facts alleged by the prosecution.

Second, develop a good understanding of the legal theories in play.

A recent attempt to settle a drug case was made more difficult by the fact that the prosecutor "knew" my client had been involved with another defendant in a similar case.

"You know that he sold drugs to X," he told me as we tried to come to a favorable resolution instead of trying the case.

I did not "know" that to be true, and neither did the prosecutor. He assumed it was so, and X likely said it was, but that did not make it true. My client denied he had ever sold drugs to X, and that disputed "fact" made it nearly impossible to settle the matter. Sometimes the facts that the prosecutor alleges simply cannot be reconciled with your (or your client's) position. When that occurs, and neither side will change positions, trials happen. 

I mentioned above the time required to "update" myself with respect to the death penalty. That article I linked to indicates that 9 of the 16 death penalty cases in the military system had been overturned on appeal. I personally have been co-counsel to three persons who had been sentenced to death at trial. I was not the trial lawyer in the case, but rather served as one of their lawyers in federal habeas cases. These cases are brought as a last resort to stop the execution.

In each case, and after years of work, all three of these clients ended up with a life sentence and avoided the death penalty. The real key in each case was my having teamed up with other lawyers who specialized in this type of matter. The learning curve was far too great for me to have handled the matters by myself, and I was fortunate to work with really bright lawyers who knew and understood the complexities of the law in the area.

My point is this - the law can be very complex in its application to particular facts. If you are facing a criminal charge you may generally understand the law, but that is not the same as really understanding the law's application to your case. Get a lawyer who will spend the time to get a grip on that part of the case.

So back to work. I have thousands of pages of investigative reports to read and motions to file, and there are only four shopping days to Christmas. That assumes the world does not come to an end tomorrow. I am not betting on the Mayans. 

If you have a case and want to talk, give us a call. Courtney's off to Chicago, Patty's trying to balance the checkbook, and I may soon settle down for a long winter's nap... but go ahead and call anyway. And enjoy the holidays!

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Just how serious is the State of Idaho when it comes to driving under the influence (DUI)? Ask any experienced criminal defense attorney who practices in this state and the answer will undoubtedly be "very serious!"

Exhibit A in that regard is the life sentence handed down yesterday in Ada County District Court to a 14 time offender. I can't recall anyone appearing for sentencing in Boise on his or her 14th DUI conviction. But 14 is just a number.

Even a single DUI conviction can make your life miserable!

Here are three things to take away from that DUI sentence:

First - in every criminal case the Court's focus at sentencing is on public safety. A judge is tasked with the job of protecting society ("us") from others ("them") who place us at risk. Safety is job 1, at least after a finding of guilt. It would be hard to argue with the notion that someone who has more DUI convictions than toes may injure someone if left in society at large. So to protect society the Court acted to end that risk, at least for the next 15 years and perhaps for the life of the defendant.

Second - every DUI conviction leads to more serious consequences with the courts. The law makes a second DUI conviction more serious than a first. If you get a second DUI for example, you lose your drivers license for a year. That hurts more than for the first DUI, but less than for a third. The point here is simple - every conviction is more grief than the last, leading potentially to a felony DUI charge.

Third - every DUI charge is an opportunity to ask the bigger question in a defendant's life: "Why am I in this mess?"

The law does not forbid drinking and driving. It forbids drinking too much and driving. But how much is too much? That sticky wicket has been the downfall of too many. The safest course is to honestly answer the question of why - in particular - do you have a drinking problem? If so, you need to get help at once. If this was simply the "one too many and never again" situation, you must take steps to mitigate against the effect of the DUI conviction at once. Get a good lawyer now.

If you have been charged with DUI, check out some of the posts on this blog relating to the subject by clicking the Topic "DUI" to the right of this page. There is a ton of useful info available here to help you learn about Idaho's DUI law.

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"What will you do for me to prepare for trial?"

The question came from a prospective client last week who knew exactly what he was looking for in an experienced Idaho criminal defense lawyer. His case involved a charge of driving under the influence (DUI), but it could have been any crime, because the steps we take in discovery are really the same whether the charge is DUI, grand theft, manslaughter or murder.  

Here are Seven Steps we will take for you:

First - we will request all the information that is available as to the arresting officer and others who have given statements about the case. The officer in a DUI or driving related charge has had training that may be relevant with respect to the case. The same is true with his or her disciplinary record, if any. We want to know more about every potential witness because their testimony makes or breaks the case. 

Second - we will request a copy of any and all video and audio evidence, and then review that evidence and analyze its impact on your case. You need to see and hear that evidence too!

Third - we will request a copy of the dispatch logs from the arrest in your case. Sometimes there is information in the logs that will rebut or explain part of the case.

Fourth - we will visit the scene of the investigation. We need to compare what is in the report with our own observations and experience. We want you there too, so plan to go along and provide us with your side of the story.

Fifth - We will interview any and all witnesses who may have helpful information about your case. Get us the names of everyone you can think of who knows what happened.

Sixth - We will thoroughly review the law, and explain to you how the law and the facts work together in your case.

Seven - We will learn your story, from you and from others who know what happened in your case. Every case is a battle of stories - your version and someone else's. We need to know you and your past, and we need to get to the heart of your story.

If you have been charged with any crime, call us to discuss how these steps will best prepare us for trial.

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"ACT IMMEDIATELY TO PROTECT YOUR DRIVING PRIVILEGES"

In Boise, Idaho, if you are charged with driving under the influence of alcohol or drugs, two things are certain: First - your mugshot photo will show-up online for all to see, and second - you will receive a "letter" advertising the services of a lawyer who wants to represent you.

I am writing this today after meeting with a potential DUI client who told me that he had been "scared" into hiring a young, inexperienced lawyer with a slick website and an even slicker solicitation letter. After a couple weeks of trying to get a return call, he was ready to change lawyers. His initial fear - the main factor that had driven the client to hire his lawyer - had been replaced by a feeling of dissatisfaction over how the case was being handled.

I have written about this before, but I had not recently seen the letters some lawyers are sending to potential clients. Some of the solicitations I have seen are overly frightening and deceptive. At a recent DUI seminar the speaker said that one of her clients had received over 25 of these solicitations.

Here's what I hate about these solicitations - they are solely intended to convert you from "charged" to CLIENT. The lawyers behind them prey on the fear that is inherent within the legal system - fear of big fines, jail time, lost driving privileges and lost jobs.

All of these ARE potential consequences of a DUI, but the idea that you should "decide now" to call a direct mail lawyer because "your time is running out and you must act immediately" is erroneous.

Stop. Breathe deep and get the facts about DUI before you jump at that "mailbox lawyer."

Yes, DUI is a very serious charge. The penalties are enough to keep most of us sleepless for nights if charged with this crime. The answer to the fear caused by your arrest, is information.  You do not have to choose a lawyer without first learning as much as you can about the charges you face.

Do not have to be scared into hiring a lawyer who sent you a "legal" looking come-on by mail.

Take some time.

Talk to some friends and get lawyer referrals.

Talk to some lawyers.

Then make an informed decision, not a decision based on fear!

Start your research on driving under the influence of drugs or alcohol by checking out the DUI posts in this blog under the Topics section to the right of this post. There, you will find information about drunk driving arrests, physical control of the vehicle, the politics of a DUI charge and why winning is so difficult, 5 questions you must ask before hiring a DUI lawyer, the truth about penalties for DUI in Idaho, whether you should take the breathalyzer in Idaho and a follow-up on that same issue, whether you should take the field sobriety tests in Idaho, and when your car can be stopped by an Idaho law enforcement officer. And there is so much more - under the DUI topic in this blog. 

So get informed BEFORE you choose a lawyer.

And if you want to learn more about your case, simply give us a call.

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