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

 Just why do I blog? The real point of this is to start a conversation between you the reader and me the blogger. I read a lot of blogs as part of being a blogging trial lawyer. My favorites currently are blogs about blogging and blogs about bicycles and blogs about photography. And again I am off topic. 

But my point is this: this blog is intended to provide information and engage you as a reader in a conversation about the law and legal problems and possible solutions.

And then there is that other part - it's also about trying to convert the reader into the client. 

I admit it. 

To do that, the marketing and blogging gurus talk about a "call to action." That is the hook to get the other person involved. Since what I "sell" is advice, my call to action is the way to get us talking. Ideally, the "call to action" is front and center on your site. Like those commercials that remind us "operators are standing by" and just waiting for your call. But lawyering is a little more subtle, at least it is for me. 

So if you want to be part of this conversation, you can find my "call to action" at the tab above marked "Contact." I am interested in your case and would like to talk about it. No charge. Just a little conversation and occasionally (if it is really a great case), a little arm twisting.

What did you expect? I am a lawyer.

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 Rule one for bloggers is to stay on track. Do not go off topic. So again, I depart from the rules and simply have to "react" to a news story today that the Idaho lottery winner may have to "share" that huge prize with her "estranged husband." Oh, man - that law can be a bear.

Here's the deal - family law 101 - in Idaho, everything you earn while married is community property unless you have a contract that provides otherwise. Most married folks don't have those contracts. So when you separate from your spouse, but are still married, your earnings are community property. If you spend community property on a lottery ticket and the lottery gods strike you with serious lightning - you have to think about who owns that ticket and the $100 million or so that goes with "said ticket." 

That is the issue facing Idaho's recent lottery winner. She is reportedly in seclusion with her children trying to figure out how to live with that money. She is likely now contemplating life with a little less as her still-husband likely owns half the proceeds. She bought the ticket with their money since they were still married, so arguably - almost certainly - he owns half of the proceeds or roughly $50 million. 

I am not a divorce lawyer. Oh, I have been in those battles and fought over the usual stuff - like who gets the silver cups from Uncle Fred and who pays for the kids' health insurance. But this one is simply such a great teaching moment for anyone facing divorce: 

Get it settled and sign the papers.

Until you do that - your lottery ticket is probably owned by "both" of you. Sign the papers and move on.  Or remember the consequences of inaction - you get to share that prize with the man or woman you have decided to live without.

Ouch! It oughta' be a crime

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 The recent Idaho Supreme Court decision in State v. Skurlock answers the question of when daytime ends - at least when it comes to conducting a search pursuant to a "daytime" search warrant. Skurlock was residing in a motel in Sandpoint, and the police executed their "daytime" warrant about a half hour after sunset. They found drugs and Skurlock was charged with possession with the intent to deliver. 

The question on appeal (as preserved by Skurlock's conditional guilty plea) was whether or not to follow an earlier decision (from State v. Burnside, 113 Idaho 65(1987)), that daytime ends at the point at which there is insufficient natural light to clearly identify individuals without the aid of artificial light. The State presented evidence that when the search began, there was sufficient light to identify individuals - so the search was within the law as understood by the officers and previously announced by the court of appeals. 

You might wonder why this matters. Night time searches place everyone at a greater risk of harm, as anyone who has been startled from sleep by a knock on the door can attest. So searching during the day has the advantage of officer safety and it is arguably less an invasion of privacy. Idaho law, however, does not specifically define "daytime." Skurlock argued that the Court should adopt the same rule as Utah, that daytime warrants may not be served one-half hour after sunset to one-half hour before sunrise. The concurring opinion suggested a third alternative used by the federal government - relying on a particular time. 

The Supreme Court affirmed Skurlock's conviction, noting that he had not contested the facts of the case nor presented an argument that the application of Burnside violated his constitutional rights, or amounted to misapplication of Idaho law. Sorry Skurlock, but that search was not unreasonable.

So now the question is this: Should there be a criminal rule that defines "daytime?"

As a member of the Idaho Criminal Rules committee I would love to hear your opinion. Personally, I don't think any change is necessary. The Court in Skurlock leaves open the possibility that we might adopt a "bright line" rule, but is any such rule going to be better than the current precedent? Skurlock might have put on evidence that the officers needed a flashlight to identify persons at the scene. He did not do so. He might have argued some set of facts to establish a reasonable basis for overruling Burnside. He did not. And is a rule that says daytime ends at a certain time likely to lead to a more "reasonable" search? I doubt it.

I would leave the law as it is - even though neither the legislature nor any rules committee has defined "daytime." The courts are certainly capable of giving us a rule that seems to work, and that is what we have in Burnside.

Have a different opinion? Let's hear it.

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 KTVB news reported last night that all felony charges filed against five former Blackfoot high school football players have been dismissed, leaving only misdemeanor charges of battery. A few weeks ago the allegations gained international news status, and were discussed openly by national news programs and radio call in shows. Generally, the stories made it sound as if the school district and its staff - teachers and coaches alike - had all managed to fall asleep at the wheel, while student bullies molested and abused their team mates.

And now the charges have been dismissed. Why? Because there is little or no proof that anyone was sexually abused. So little proof that the deputy prosecutor who ran from the streets proclaiming the sky was falling has had to eat his own accusations. And that is where the lack of discernment on the part of the office and its leader has to eat at each of the kids charged, their families, and frankly, leaders in the community. When cases are brought that fail so completely in proof, everyone loses.

The kids who were charged and their families lost. They had to spend money to defend against baseless allegations. The community reputation was harmed. The coaches and school administrators looked like they had lost control of their charges. And the kids who were "harassed" lost too. Whatever really happened, it paled in comparison to the prosecutors claims. They were embarrassed, the subject of speculation and in some cases, shame. Prosecutors made a big deal out of little or nothing.

Prosecutors are just people and they make mistakes. They overcharge and under-prove occasionally, all to the mistrust of those who put them in office to investigate first, and charge later. But the lack of judgment in Blackfoot this past month in shouting from the mountains that their high school football team was a bunch or sexual abusers represents a failure on their part to ask tough questions first. It is in sharp contrast to what I usually see where I practice.

The only right thing to do when confronted with such a "cluster" (an old Army term for "monumental disaster") was to dismiss the felony charges. 

Good to see they got that part right.

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 In Idaho there are two ways that a case gets to district court - that is the court of general jurisdiction for the state. The first way is by indictment. An indictment results when a grand jury finds that there is evidence that indicates more likely than not, the person committed a crime.

That is the standard for probable cause - more likely than not. Proof beyond a reasonable doubt is not required until trial.

The second method is the use of an information charging a crime followed by a preliminary hearing. The preliminary hearing is held in public - not private like a secret grand jury. And the defendant and defense lawyer are at the hearing and have the opportunity to hear the witnesses and cross-examine the witnesses. This is a big advantage as the case goes forward. It allows everyone an opportunity to examine the facts and the law as the charges proceed to district court.

And there is always the possibility that the magistrate judge handling the preliminary hearing may not find probable cause - resulting in the dismissal of the charges. In sharp contrast, grand juries almost always do the state's bidding. As the saying goes - a good prosecutor could indict a ham sandwich.

Headed to a hearing? Have a question? Jump in here and comment or give an attorney a call.

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Just before Christmas I spent a little time with Zachary Neagle. When Zach was charged with the murder of his father in March of 2009, I followed the case with special interest. I am a dad and I could not imagine what might lead a kid to kill anyone - let alone his father. Fathers are supposed to be protectors and providers. But here was this little kid in an orange jumpsuit facing the most serious crime. 

Charged as an adult. As if this little scrub was a man.

Eventually Charles Craft, Zach's lawyer - and a fine lawyer and Zach's protector at that - called and offered me the chance to get involved. I saw the case as a chance to keep this kid from spending his life in prison. The prosecutor in the case had even suggested that "he" had taken the death penalty off the table because of Zach's age - which was really no concession because the United States Supreme Court had ruled years before that someone Zach's age was not old enough to be executed. Maybe Bujack knew that - more likely he did not.

Zach's story had been told on primetime news programs across the nation. He had killed his father to protect his brother and sister from facing the sexual abuse he had experienced.

So I got in the case with Charles Crafts and I met Zach's family, and read the court cases dealing with such matters, and I came to the conclusion that this was the riskiest of propositions. If the case went to trial and Zach was convicted of murder he would go to an adult prison. All 4-foot-8-inches of him. Eighty pounds of kid in a place where inmates able to lift more than that amount with one hand would turn him into someone none of us could imagine. 

I imagined that he might win at trial. Lots of people told me that no jury would ever convict a kid who killed to protect himself from child abuse. But a jury would have to conclude that Zach acted out of necessity to protect himself and his siblings - not out of revenge for the wrongs he had experienced. That risk was simply too much for a kid so young. So in the end Zach plead guilty to manslaughter, not murder, and he headed off to juvenile corrections.

When he sentenced Zach, the judge voiced his hope that Zach would get the help he needed to be rehabilitated. Zach was given a chance - a "blended sentence" - and an opportunity to get out of that adult prison sentence.

Most of the folks who stop me to ask about Zach have expressed their support, and asked how Zach is doing.  

I can report that Zach Neagle is doing well. I spent a little time with him a couple weeks ago just before Christmas. His case is pending - at some point he will go before a judge again to see when and how he might be released. His future is really in his own hands. If he works hard and does not pose a risk to himself or others the Judge may place Zach Neagle on probation and he may still avoid that adult prison sentence we feared could end his life. 

He has grown up. He is taller and he looks great. And that fear that we had about him ending up a statistic seems more remote today than it did when he plead guilty to killing his father.

Juvenile cases are different. There are more opportunities to focus the case on rehabilitation and the people in the cases tend to focus their efforts at problem solving. Being the lawyer in cases involving kids is rewarding and frightening at the same time. Just how this one will end remains a question, but Zach Neagle has a chance to have a real life. He may yet return to his mother, his little brother and sister. He will return a very different man than the child who shot his dad. 

If you have a question about a juvenile case, give me a call. 

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