News today by mail adds me to those lawyers selected for inclusion in the 2009 edition of The Best Lawyers in America in both specialties of Non-White-Collar Criminal Defense and White Collar Criminal Defense. Special thanks to my peers for their vote of confidence in the criminal defense services I provide. Now back to work - maybe on your case.
I am not a psychologist - and I don't play one on this blog, but the Idaho Court of Appeals has decided that criminal defense lawyers need to pay attention to their clients' mental states at the time they enter a plea of guilty. In Ridgley vs State of Idaho, decided August 6, Judge Lansing held that the appellant's post trial challenge to his plea of guilty to Lewd Conduct with a minor under sixteen raised a question of fact as to his emotional state and his lawyers competence. The district court had dismissed the petition for post-conviction relief, in which Ridgley claimed his lawyer did not pay enough attention to his emotional state when he entered the plea. Every client who is charged with a crime is depressed to some degree, but this was different. The conduct he pled guilty to occurred two days after Ridgley's wife died, and he was a suspect at the time. He entered the plea just sixteen days after her death. His lawyer met with Ridgley for less than an hour before he pled guilty, "did not provide Ridgley a copy of the police report, did not contact potential witnesses, did not watch or listen to tapes of interviews of the victim, and failed to advise Ridgley of potential defenses." So that doesn't sound like great defense work, and in itself, might have been enough to send the case back to the district court. Combined with the affidavits and evidence offered the district court to prove that Ridgley's mental state was equally suspect, the decision is not entirely surprising.
So if you are facing serious felony charges like Ridgley was - spend time with the lawyer who is representing you. Don't shortcut the process. Tell that lawyer everything so you get the benefit of his or her experience.
I am in the process of looking for hidden assets of a potential judgment debtor (assuming we win the case and get the judgment) and came across another blog that focusses on this challenge. Check out Asset Search Blog for info on this subject. Very interesting. In my case, we are looking for assets to satisfy a potential fraud and racketeering judgment. This is always the problem - get the judgment but how do you get the client's money? Anyway - if you are looking for this type of info, take a gander at Asset Search Blog.
Someone asked me today what he should do about a letter he received "inviting" him to appear at a federal grand jury. To appear or not appear, that is the question. Not really! When a federal prosecutor has you in his or her sights, you may get a "target" letter, letting you know that your liberty is in the balance. You are a suspect. You are the "target" of a federal investigation. They want to question you under oath and without a lawyer. And whatever you say "can and will be used against you in a court of law." Translation: you are in a world of hurt. Under the US Constitution, a federal felony charge arises when a secret grand jury returns a "true bill" requiring you to appear and defend against federal criminal charges. So if invited, should you go to the party? No - unless your criminal defense attorney has a really great reason for you to play along. That happens occasionally. It did for me once this past year, when I went along and watched a really great "suspect" tell his story to the satisfaction of the grand jury. Mind you I was not in the room. No defense attorneys are allowed and the witness is literally on his or her own. But once in a while - a really great while - there is a suspect who has the inherent ability and preparation that allows the story to be told and not end in indictment. Such was the case with my client - who just happened to not be guilty of any crime.
Invited to appear? Get an experienced lawyer fast. Nothing good comes from federal grand juries in the usual circumstances. So do not assume that you can talk your way out of trouble. It's like they say - you have the right to remain silent, but can you keep your mouth shut? A buddy of mine tells clients that an invitation from the feds to appear at the grand jury is the "rainy day" you've been saving for. Put away a little money for a rainy day? Get it out. If the feds are inviting you to their party - it's pouring. Time to invest in a good criminal defense lawyer.
In an interesting Idaho Court of Appeals decision, the writing is on the wall for anyone cutting a cooperation deal that requires the Defendant to assist a drug task force by “identifying, apprehending, and convicting those people involved in the use, distribution, and manufacture of controlled substances.” No drugs - no deal! In State v. Chacon, Judge Lansing finds that the appellant had breached his cooperation agreement with the State when he was unable to buy dope as directed by the drug task force. Instead of a recommendation of five years fixed (twenty more indeterminate), the court upheld a sentence of fifteen fixed and twenty years indeterminate. Chacon, the Court reasoned, had breached his agreement. For his part, Chacon argued that it was impossible to perform because the good folks in the drug community figured he likely had some reason for his release from jail pending the outcome of the case. They were right - he had made a deal to dance, but the community cut off his legs. Nobody wanted to sell him drugs. My only question about this case is whether Chacon's breach was intentional. Sure - he agreed to buy dope and help out the task force, but sometimes, no matter how hard they work at it, informants cannot get it done. The opinion suggests Chacon did not work very hard at this, so perhaps the result is not unexpected. Still, there is a good lesson here - a defendant's failure to live up to the terms of his cooperation agreement will likely not be excused. There appears little room to argue about whether performance was impossible. More importantly for criminal defense lawyers with clients looking for an earlier release based on cooperation, make certain that your client can get it done.
Congrats Courtney Peterson - new lawyer!! Classes, study groups, tests and then the mother of all tests - the Bar. I always knew you would do it! Way to go!
I was just looking at Virginia Attorney Bob Battle's website, and his advice on choosing a lawyer to represent you if you are charged with driving under the influence. The advice makes sense whether you are headed to court in the great South or the Northwest. Survey says: choose wisely! As a client in a criminal case in Idaho, you want to hire an experienced lawyer. Some Boise lawyers send out letters everyday to anyone charged with a crime. They get that list of potential clients at the courthouse and then send off a FORM letter that may scare you into jumping into their caseload. Don't jump. Think! Why are those lawyers "fishing" for clients anyway? Successful and experienced lawyers (criminal and otherwise) get clients from their reputations and by referral. Just how many TRIALS have they had this year? What were the results? And will they be handling the case or passing it off to an associate? Look, it's your case, and your life. Why would you entrust it to any lawyer who could not give you the answers you deserve? Here's our pitch: Hire me for the experience and you get just that; me and twenty-seven years in the courtroom.
So what kind of cases have I handled? In the past five years the cases have included murder, manslaughter, racketeering, drug possession and trafficking, fraud, medicaid fraud, illegal possession of guns and ammunition, sex offenses, DUI, domestic battery, assault, aggravated assault, and other misdemeanors. Civil case? Wrongful death, ski injuries, defective design of Ford Expedition, personal injury automobile accident, truck accidents, defamation, malpractice, breach of contract, fraud, and defective products. Need a lawyer? Like Bob Battle says, choose wisely.
I just returned from a meeting of the Idaho Criminal Rules Committee during which we considered a question posed by a Magistrate Judge: Why do we waste valuable court time with preliminary hearings? Couldn't we just eliminate them and reduce the court's work? Sure - and maybe we should just get rid of those nagging, time consuming jury trials! Seriously though, what is the point of the preliminary hearing, at which a Magistrate Judge determines probable cause, when in reality that has occurred already in the process. The Committee uniformly agreed that the preliminary hearing serves several very important purposes. First, it allows the Defendant an opportunity to contest the allegations against him for the very first time. His (or her) lawyer can cross-examine and confront witnesses on whose statements were relied for the initial probable cause determination. You don't get that opportunity with a "secret Grand Jury." Second, it allows the lawyers and the Defendant an opportunity to talk about the case and the evidence. We almost always have an offer to settle the case at the preliminary hearing - so it serves to bring the parties together as if to potentially mediate the matter. Third, the preliminary hearing allows the Defendant a chance to consider the bail set initially, and present evidence why bail should be reduced. That is vital to the Defendant, who is often still in jail! So the preliminary hearing is an important part of due process - and the Magistrate who posed the question will likely be unhappy to hear that we all agreed, and by all, I mean the judges, magistrates, prosecutors, public defenders and private counsel on the committee. The preliminary hearing will continue to be the first chance for a defendant to prove his or her case. I know - the defendant does not have to prove anything! Nice theory! Let's talk about that soon. If you are facing a felony charge get ready to start winning your case at the preliminary hearing - still coming to a courtroom near you!
I had this issue again, yesterday, in a Boise DUI (driving under influence) case before an Ada County Magistrate Judge. The answer may not be as simple as the City of Boise would argue. They contend that an arrest does not occur until the handcuffs are on the defendant - and that usually does not occur until after the field sobriety tests. Accordingly, the defendant is not in "custody" and there is no obligation to provide Miranda warnings. My case involved a defendant who had been arrested going the wrong way down a one way street in Boise, after 2:00 a.m. With the bars closing and his driving pattern, the officer made a stop with his lights flashing and approached the car. He testified that he smelled the odor of alcohol, and that he observed the bloodshot and glassy eyes of my client. His next question: Have you been drinking tonight? Was there a duty to advise the defendant of his right to remain silent? Answer: not yet. The judge ruled that there was no arrest for Miranda purposes until further investigation had occurred. That "investigation" was the officer administered field sobriety tests. Statements made by my client during those tests are admissible, as is the breathalizer result. The message here - you are not going to hear the officer tell you that you may remain silent until after you have taken the field sobriety tests. Of course the case has not been tried yet, and the breathalizer results are not 100% accurate. Still at issue - whether the state must provide the source code for the Intoxalizer 5000, and whether the defendant's BAC is admissable and enough to prove that he was operating the car while intoxicated. Don't drink and drive. The cost is simply too high. Have a question about drinking and driving in Boise Idaho? Comment or send me an email.
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