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

 In US v. Pinedo-Moreno, decided January 11, 2010, the 9th Circuit Court of Appeals held that: (1) there is no expectation of privacy in a car parked in your driveway. Police officers had attached a tracking device to the underside of the appellants car, while it sat awaiting the return of its owner. The court said that the homeowner had no gate, no signs barring trespassers and the car was visible from the street. As importantly, it also reiterated that (2) use of the tracking device is not a search.  

I always laugh at the notion that the 9th Circuit Court of Appeals is some whacked out group of libs and socialista just looking for the chance to outlaw American currency and require we all stop wearing fur! Here again the bottom line crosses the Circuits - no reasonable expectation of privacy means no actionable search.

Factually, this one of those marijuana grow operation cases where DEA has identified a potential suspect but is looking for the grow. They attached tracking devices on seven occasions, and not one of them was a search. The US conceded that the car was parked within the curtilage of the home but the driveway was "only a semi-private" area. No reasonable expectation of privacy follows. If there was a reasonable expectation of privacy, there was no search when they followed the driver because the US Supreme Court has already held that a person who travels on public roadways has no reasonable expectation of privacy in his travels. 

So there we are - full circle and back to criminal law. I may not post again for a couple weeks as I head to an island for warmth, sun, a little bone fishing and some time reading trashy novels.  And there will likely be a country song or two: "Got my toes in the water...." 

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 When I was a young JAG lawyer, the Army insisted on my use of this goofy phrase as I would call a fact or circumstance to the attention of a witness: "directing your attention to exhibit A, can you identify the item for the court." It had a nice "legal" sound to it and it was easy to remember. Candidly, it was somewhat better than saying, "hey - what is 'A?'" I actually heard that question asked recently in trial. I'll tell you what "A" is counsel! 

We also learned the rules that we were never to break - as it relates to cross-examination the critical rule was simply this: never ask a question for which you do not know the answer.  

Of course anyone who tries case does just that. Sometimes we get stung and sometimes we get lucky. The key to which happens is likely our ability to respond, not run.

This morning I was reading Paul Luvera's blog for trial lawyers and he has a great post about Irving Younger and the "rules of cross-examination." If you are a great trial lawyer or (like me) aspire to "goodness" you should read Luvera's post.  Go there now and do it. Your life will be better.

If you are reading this and your are not a trial lawyer - go do it anyway. Your life will also be better. Lavera is one of the great ones - I count myself lucky to have learned from him at the Trial Lawyers College. He and Gerry are great friends and it is easy to see why. They both get it - they understand that the real people we represent and the real people on our juries expect authenticity and they want the truth. Running away from tough questions never wins cases.  

Some day soon we will revisit criminal law. I promise. But for now it is off to work out. IMAZ looms ahead! What's ten months between friends!

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 That's right - a six dollar fax. No fries or coke. "Just the fax, Ma'am." Are you kidding me?!

So I got this bill from a lawyer to whom I had referred some work and he billed me $6 for a fax. Actually it was $18 for three faxes. Really? What long distance carrier does he have that charges by the fax? And explain to me why any lawyer who charges say $200 per hour also jabs at clients for a $6 fax. 

New rules in the office today. Our clients are our friends. They are our life blood. We will not nickel and dime them to death for copies, faxes, paper clips and staples! And I will choose more carefully the lawyers to whom I send business. It is not an answer that I can charge the client. The client deserves better. 

At least I feel better with that off my chest!

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 This week's first call from a potential client posed the question: Why do federal investigations take so long? Long is right! I am involved in a fraud case in federal court (potentially) that began nearly 5 years ago, and like that rabbit it just keeps going and going and going and - well you get it. Federal prosecutors are like great gift givers at Christmas. By the time you get their "package" it is so tightly "wrapped" (resulting from a long, thorough investigation) that you seldom have a chance to get to the goods in one piece. Those long, thorough investigations result in very thorough indictments, and complex trials in federal court.

Federal investigators have unlimited investigative resources when investigating federal crimes. They use wiretaps, surveillance, monitoring of computer and banking records, and they love informants. As a result, federal investigations frequently take months and years and seldom involve mistakes or sloppy work, unless those informants have gotten sloppy.

And let's not forget the darling of every federal prosecutor - conspiracy. In almost every federal criminal case you will find a conspiracy charge, to give the feds even greater investigative leverage. A charge of conspiracy changes the rules. That out of court statement made by your brother is suddenly admissible at trial because of the co-conspirator exception to the hearsay rule. Other defendants making plea bargains may claim you are guilty of crimes you did not commit or are only partially responsible for, based on hearsay and their motive to avoid a stiff sentence.

So what to do if facing a federal investigation? Here are my top three tips:

First - hunker down and be willing to endure. You can seldom change the course or scope of a federal investigation, whether you are suspected of some type of fraud or an obscure federal criminal tax violation. So settle in and hope to wait them out. It happens! Sometimes they find a bigger fish to follow and lose interest in your problems.

Second - get the best legal help you can afford. ONLY hire an experienced criminal defense lawyer who has spent time trying criminal cases in federal court. Ask him or her specifics about federal criminal trials and do not settle for someone who has never WON a federal criminal trial.  You do not need a novice or a generalist - your life and liberty are on the line.

Federal criminal trials are different from state or local criminal prosecutions. They are more complex, they take longer to get to trial and you start at an investigative disadvantage because of the length of time the United States has taken to investigate before filing that criminal case.

Finally - do not talk about the case with others. There is no "frightened potential criminal defendant - old college room mate" privilege. There is that attorney - client privilege that allows us to hear the whole story in complete confidence so that we can give you reasoned advice. Real advice on what to do next.

And do not talk to the investigators.  I suppose that is technically my fourth tip. But I mean it!

So hang in there and get ready for that long ride if the feds are after you. Start with these ideas, but if you need to talk to someone right now - pick up the phone and call your favorite lawyer. 

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 Almost forgot about this one - Charles Hartman - pled guilty to sexual abuse of a minor in 2007. On January 13th a jury awarded his victim $1.9 million. Boise lawyer Walt Bithell represented the victim, who was 16 at the time she was molested. Speaking about the role of the civil case:

"The civil case is designed to do what the criminal system won't do - try to make the family whole. You cannot believe the impact on the victim, and the victim's family," said Bithell, who said in 40 years of practicing law he can remember only one other time when a family pursued a civil judgment in a sex abuse case.

The unanimous jury awarded $1 million in punitive damages, and the balance ($921,000) to cover general damages, counseling and the damage to the family relationships.  Although most offenders go to prison and have no money to provide for their victims - that is not always the case.  Hartman reportedly has business and real estate that might provide a way to recover the verdict.

So what does this say about the state of justice in Idaho? First, it is possible to win a jury verdict in a civil case that seeks compensation for crime victims. Bithell is a legend here - great trial lawyer and a great man. And Walt had the things you need to win: liability AND damages. 

Second, those "run away" verdicts are urban (and country) myths! The jury awarded $1.9 million - not $99 million - like those insurance companies would have us believe. They and the legislature have limited the amount of money a victim can recover in most civil cases supposedly because Idaho juries are not "reasoned" (OK - insert the word  "smart" if you dare) enough to sort out real damages from the imagined. Nonsense. Idaho juries, and juries in virtually every courtroom across the land, have a better grasp on what is real and what is imagined than do the insurance fat cats. Think AIG would get those monster bonuses if a group of 12 jurors got to decide?

Third, to win a case like this you have to be willing to try the case. That goes for the client, family and lawyers. Defendants are not going to hand over $1.9 million without a fight, so put on the gloves and get to it. You need a gladiator for your case, and the will to see it through. And trust the jury to get to the truth.

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 When I was at the Trial Lawyers College I met Daniel Rodriguez - a mild mannered civil rights lawyer from Bakersfield CA. He showed me there that he was simply one of the greatest story tellers in the class and undoubtedly one of the great trial lawyers in the country. He has a home town style that quickly captivates those around him. 

He also just won the biggest verdict in California history for a drunk driving case - $31 million. 

So how did he do it? Here are a couple things that made his case so compelling: 

First - his clients had real damages. His primary client had brain damage and will need constant care for the rest of her life. So there were huge sums of money that will be needed to keep 19-year old Rosie Landros alive. Real damages make a real difference. So often we have potential cases where people are hurt, but seldom are they as severely hurt as the victim here.

Second - there was real liability. The driver of the other car had pled guilty to driving under the influence of alcohol (DUI). When liability is established, the only question is how much the victim is entitled to for damages and there is no issue of contributory negligence. 

Third - THERE ARE NO LIMITS FOR NONECONOMIC DAMAGES IN CALIFORNIA - or Wyoming, or Montana, or Texas or a whole bunch of other states. So pain and suffering has real value in those states. In Idaho the insurance companies convinced our state legislature that juries award too much money for pain and suffering, so WE HAVE A $250,000 limit or cap on noneconomic loss. Our pain is not worth as much as the pain suffered in neighboring states. 

And those same legislators clamor for tort reform while taking money from those insurance companies and their lackies.  

Here's an idea - let's throw them all out of office and start over. Then we the people can restore to us the same rights we would have if we were injured in a neighboring state.

Want to read more about this case? Check out the newspaper account here. And congrats Daniel. From a class of pretty good lawyers at Trial Lawyers College, you again showed us that you are the King!

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 I have had some comments (some not so supportive) and calls (a few agreed) about my last post on Haiti. I know I am off topic here, but take a look at the Associated Press report today about the dismal failings of the government in Haiti to handle the job of providing support to its people. After seizing control of food distributions, the locals got it right: "They stole the rice!" The government stole the rice and is reportedly charging its people for food donated by the world.

I know - Haiti is chaos. But my point the other day was that the trumped up criminal charges against the Baptist missionaries is a distraction. "Pay no attention to the man behind the curtain. I am the great and powerful Oz."

America does a pretty good job of NOT taking the easy way out of our problems by diverting world attention to the minor trappings of ten folks who tried to get some kids to an orphanage. Poor planning is not a crime - usually. 

So I will not return to this off-topic soon, but I will continue to believe that justice will prevail for even misguided souls on a mission to save starving kids, some of whom were apparently "given away" by well meaning parents.

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 I was struck by the irony of it all - abandoned and orphaned children being delivered to another orphanage by apparently well meaning Americans - while the government of Haiti cannot deliver even the most basic essentials to its people. They cannot take so much as water to their own but they presume American missionaries are trafficking in children. Sick. That is the single word to describe their miserable failure. And these missionaries who have traveled from thousands of miles away and were simply taking helpless children to another orphanage are - by the government of Haiti - presumed to be criminals. Here is how it was reported:

"But the prime minister said some legal system needs to determine whether the Americans were acting in good faith - as they claim - or are child traffickers in a nation that has struggled to fight exploitation of children."

I will not presume the guilt of Americans who spent their own money to go to the aid of children, and neither would our judicial system. Not in our country. Not in America. And that is just one of the important differences between the greatest justice system in the world and every other. We do not presume guilt, we require proof. And no criminal defendant in this country has to prove innocence. We presume you are innocent unless proven otherwise in a court of law. Yes - people are arrested and held before trial, but they are not used by the government to shift focus away from their own failings.

America. Filled with people who would give up their money for others and travel to tragedy to try and save children. We do not have to apologize here.  And maybe the government of Haiti should spend a little more time trying to save its own children.

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