September 2011

This past month has resulted in at least two car-bicycle collisions, each with its own tragic consequence. Several weeks ago, Boise Police Officer Chris Cowling was struck by a driver in Caldwell. Officer Cowling was the victim of a hit and run that has left him hospitalized and facing a long recovery. A little more than a week ago another Boise bicycle rider was struck by a car making a left turn. That driver was cited for an infraction. Some might say that this year has been kinder to bicycle riders than last year – when three riders were killed. Here are three things you need to know if you have been hit by an Idaho driver while riding your bike:

First – you have the right to collect your damages from the driver of a vehicle that strikes you while riding your bike, but bicycle riders have obligations and duties to others on the road too. Those duties include your duty to follow the traffic laws. If you fail to follow those laws and are struck as a result, your own negligence may preclude a full recovery.

Second – like any other civil action in Idaho, there are time limitations on your right to recover. Generally in Idaho a civil action for negligence requires that you commence your suit in two years. The actual statute may give you more time if you were a minor at the time.

Third – you need to keep good track of the records that demonstrate your damages. Keep copies of those medical bills and pharmacy records so that you can demonstrate your actual damages. The same is true of your lost time at work. And keep a simple log of your recovery – who you saw, what physical therapy or medical visit occurred and when, and how you felt.

Most importantly, take time to heal. We ride because we love being out there on the road – so get back in shape and back out with friends riding in Boise. 

I was reminded how dangerous riding bikes in Boise can be last night when a car decided to play "chicken" with me as I was riding in Columbia Village. My iPhone camera did not capture that blue sedan as it bore down on me – and I chased the driver back to Federal Way to get the license number, but never quite got there. Here’s hoping that idiot does not strike some rider – and here’s hoping Chris Cowling and other cyclists hit recently on the roads have a full recovery.Continue Reading Hit While Riding Your Bike In Idaho? Three Things You Need To Know

Just how do you address the court? What does your language tell the judge in that Ada County or Federal Court appearance? Whether you are a lawyer or a defendant, an expert witness or a plaintiff, the way you speak and the things you say can make a difference. Check out this video, it’s hilarious, but sadly true. We seldom speak with the authority or conviction we need to convey in court.Continue Reading Preparing For A Court Appearance – Speak Like You Mean It

The Sixth Amendment to the Constitution provides you with many of your most important tools at trial. It is intended to guarantee a fair trial to every person accused of a crime. Whether you are charged with DUI, a drug crime, a sex offense, fraud, manslaughter or murder, the Sixth Amendment helps us to get you a fair trial.

If you have been charged with a crime, we will be happy to meet with you to explain your Sixth Amendment rights and how they can help us defend you in your particular criminal defense matter.

So what does the Sixth Amendment provide?  It provides you with these essential rights at trial:

You have the right to be tried by an impartial jury.
You must be informed of the nature of the charges against you.
You have the right to confront the witnesses against you.
You have the right to a lawyer.

These basic rights are just the start – for example you don’t want just any lawyer – you want an experienced trial lawyer.

You don’t really want just any jury that might be impartial – you want a lawyer who can use his or her experience to choose jurors most likely to listen to your story, and jurors who will want to help you.

So the Sixth Amendment gives us a framework to defend you, but the key to your defense – your trial and your innocence – is the lawyer you choose.

Before you hire a lawyer who says he or she has the experience you need to face a prosecution – STOP.  Ask that lawyer the five questions we have here.  Then give us a call. For over thirty years we have been providing the best defense in criminal cases in state and federal courts.Continue Reading Just One Tool – Protecting Your Sixth Amendment Rights

You’re kidding me? A jailhouse snitch lied? Under oath? While being asked questions by a prosecutor? Who the 9th Circuit says KNEW that the snitch was lying? Huh.

That’s what the 9th Circuit Court of Appeals found today as it reversed the death penalty for Lacey Sivak, who was convicted of murder and sentenced to death for the killing of a convenience store clerk in 1981.  The Idaho Statesman reports this story here.

What should we take away from this? First, it ain’t over til’ the fat lady sings! Criminal trials and their outcomes are unpredictable, and the "result" is often subject to further review – by the courts of appeal. Second, the jailhouse snitch testimony is always suspect because the snitch is always looking for a way out of jail! Trial lawyers need to work on that snitch cross-examination so that the jury understands the credibility issues that exist with the snitch.

Maybe most importantly – we are reminded again of the important work performed by death penalty trial, habeas and appellate attorneys. Klaus Wiebe, Rolf Kehne, David Nevin, Leo Griffard, Bruce Livingston and Colleen Ward deserve a big congrats on their hard work. Death penalty and habeas corpus work is so difficult and such precision is required that we can never thank these folks enough.

What will happen to Sivak? Likely, he will be re-sentenced (if the State chooses to seek the death penalty) or the case will be settled for a life sentence.

Remember this – no matter what crime is charged – you need to retain the best attorney you can afford. Your life may literally depend upon that choice.Continue Reading Sivak’s Death Penalty Reversed – Prosecutors Knowingly Permitted Jailhouse Snitch To Lie

Today’s post is authored by Boise lawyer Courtney Peterson. Courtney’s practice focuses on criminal defense and child custody.

What does it take for your simple assault or battery charge to be elevated to a crime of domestic battery or domestic violence? Not much. An act as simple as grabbing your live-in boyfriend or girlfriend by the wrist might be charged as a domestic violence crime. In Idaho, you don’t have to married to someone to be accused of domestic violence. All it takes is evidence that an alleged victim is a “household member.” Aside from a spouse, “household member” can include a former spouse, a person you have a child with regardless of whether you’ve been married or not, or a person who you cohabitate with. If you’re charged with a domestic battery or assault, not only could you be spending more time in jail, but you run the risk of being charged with a felony if this isn’t your first offense. A first offense domestic violence charge, whether a battery or assault, carries up to 6 months in jail and a $1,000 fine. A second charge within 10 years has a maximum penalty of 1 year in jail and a $2,000 fine. If you’re charged with a third within 15 years, that’s a felony. You face up to 5 years in prison and a $5,000 fine. 

Domestic violence allegations are always treated differently than the average battery or assault. Alleged victims are generally taken at their word, often not interviewed to the extent that an alleged aggressor is. Police automatically assume you’re guilty and will treat you as such. They might cut corners in investigating the incident and you might never get to tell your side of the story. Once you’re charged with a domestic violence act, a judge will immediately issue a No Contact Order against you to protect the alleged victim. Until you get a chance to be heard by the judge, these orders generally prohibit any contact whatsoever. You will likely have to move out of your home until the order is terminated and might be prohibited from seeing your children for a while. 

Police and prosecutors take this charge seriously, and so should you. This is not something you want to fight on your own. You need an attorney with experience who can tell your story. If you’ve been charged, give us a call.

 

Continue Reading Domestic Battery or Domestic Violence in Idaho – Prosecutors In Ada and Canyon County Treat These As Very Serious

 

A change to Idaho Misdemeanor Rule 5(b) now requires that anyone charged with either an excessive DUI (BAC over .2) or a second DUI offense appear for arraignment in person within 48 hours. This rule now requires a personal appearance, the filing of a notice of appearance by your lawyer will not do.

What is behind this rule change? There is no statute in Idaho that requires a personal appearance for a second DUI offense. More importantly, the rule change is said to have occurred because prosecutors on the Misdemeanor and Infraction Rules Committee complained that persons charged with their second DUIs were getting another DUI before the second had been adjudicated. 

Does this ever happen? Probably. Does it happen often? I don’t think so. Then what is the practical effect of the rule change? 

Prosecutors now routinely ask the judge to add a condition to pretrial release: alcohol monitoring.

Say that you have a second DUI and post a $1000 bond. At the arraignment, the Judge will consider the request and decide whether to add this condition (or any other condition) to your release. If added, you will have to pay the cost of the SCRAM device – which monitors for alcohol use. If you cannot pay the SCRAM cost, you cannot stay out on bail. 

Look – a DUI can ruin your day. A second DUI or an excessive DUI has even more serious consequences – including that one year drivers license suspension the will not allow you to drive anywhere, not even to work. But adding alcohol monitoring as a condition of release simply makes it more likely that defendants will not be able to stay bonded out and employed.

As I said, the prosecutor will ask the judge to add this condition to your release. The judge may deny that request and order that you abstain from using alcohol instead. Magistrate judges in Ada County do a pretty good job of making their own decisions about what it will take to cause a defendant to comply with the conditions of release. But be careful if you are headed to that arraignment. Be prepared to tell the court why the alcohol monitoring is not needed in your case.

Facing a DUI or other criminal case in Idaho? Call us for a free consultation to protect your rights.

 

Continue Reading Attention Anyone Charged With A Second DUI or An Excessive DUI – Your Bond May Be In Jeopardy!

In a criminal case, discovery is the process of obtaining copies of the important documents from the State.  Depending on the case, there may be tens of thousands of pages for the lawyer to review. In one of our pending federal criminal cases we have over 14,000 pages of reports, and thirty or so hours of video and audio recordings! A ladder might be just the ticket.

The discovery rules require the prosecutor to turn over the investigative reports, witness statements, accused’s statement to the police, seized documents and other information about the case so that we can review them to prepare for trial. In Ada County most discovery from the State comes one of three ways: by voluntary disclosure, by request, or if needed – by filing a motion to compel discovery.

Here is the key thing to remember about discovery: a person facing a criminal charge has an absolute constitutional right to discovery so that he or she can prepare for trial or settlement of the case. Get it, review it, and decide how to use it.

Once we get the discovery, we review the documents and use the information to help us determine the strength of the case. There will likely be statements taken by police officers investigating the case. There may be audio recordings and video recordings, photos, illustrations and reports. And if the accused has made a statement to the police, that statement must be provided for our review. The defendant’s criminal record will be included, as will any expert or scientific reports.

Our clients need to see and review the case materials so that we can have a meaningful discussion about whether this case should be tried or settled. Based on the discovery materials we review, we will likely make a recommendation as to how we can best proceed. 

If there are matters disclosed in discovery that may not be permissible evidence against our client, we may file a motion "in limine" to keep that evidence from being admitted at trial. The same is true of evidence that we believe was unlawfully seized or obtained – we may file a motion to suppress the evidence or statements of the accused. So discovery in a criminal case is an important tool for the criminal defense lawyer to use in assisting his or her client.  

Have a discovery question? Wonder whether the search of your property was lawful? Give us a call.

 

Continue Reading Getting Discovery In A Criminal Case In Idaho – Sometimes It Takes A Ladder!

When a police officer goes too far – and uses excessive force – he can be held accountable for the harm he causes. Police officers have a tough job. We rely on them to keep us safe, and most of the time an officer uses force it is justified. Still, if you have been harmed by the actions of a police officer, you may have a case. The officer and his or her agency may be responsible for your damages.

Holding a law enforcement officer accountable is not an easy assignment. The evidence must make it clear that the force used was unreasonable or unnecessary. For example, if an officer used a baton or stun gun on someone who was simply arguing whether he or she had been speeding, a case might be made that the officer had used excessive force.

Here are three things to keep in mind about your potential excessive force claim:

First, a law enforcement officer may use force that is necessary under the circumstances presented. So not every use of force will result in a case.
Second, juries want to believe that law enforcement officers “did the right thing” when confronted with a tough situation. This means that you will likely start at a disadvantage when it comes to credibility, so your choice of a lawyer to handle the case is critical to your possible recovery.
Finally, there are procedural hurdles designed or intended to keep you out of court and to limit your recovery. Do not wait to contact an attorney and review your rights as the passage of time may destroy any opportunity you have to recover.

To safeguard your rights, your lawyers need to build your case expecting to go to trial. This means that we will help you safeguard evidence, document your medical treatment, account for lost wages and employment, and identify and interview witnesses.

If you or a family member have been injured or killed as the result of a confrontation with the police, call us for a free consultation.

 

Continue Reading Excessive Force Claims Require Action – Get Information About Your Right To Recover For Injuries

We frequently are asked about Idaho’s unified sentencing scheme and how its "parts" work.  That our clients are often confused is not surprising. A recent Idaho Appellate court decision takes a look at sentencing in Idaho, and notes that even the district judge in a second degree murder case can misunderstand the law.  

In State of Idaho vs James Anderson the Court considered whether the punishment for second degree murder required a "fixed" period of ten years. The statute sets the punishment for that crime as "imprisonment not less than ten years" to life. The district court had denied a Rule 35 motion filed by the appellant to modify the sentence in the case because the judge reasoned the statute meant ten years to life. The appellate court ruled that the minimum sentence is indeed ten years – but that ten years need not be fixed. The judge simply got it wrong – he could have sentenced to less than ten years "fixed."

What is "fixed" time in a unified sentence? Let’s say a judge wants to impose a ten year sentence. Under Idaho’s sentencing scheme, the court may impose a period of that ten years during which the convicted person will not be eligible for parole. That time is known in Idaho as "fixed" time, and the remaining time is "indeterminate." In other words – it is not "determined" at the time of sentencing how much of the remaining time will be served. The person might be granted parole and avoid serving that "indeterminate" time. For example – a sentence of 3 years fixed and 7 years indeterminate means that a person would serve 3 years before being eligible for parole. The remaining 7 years would be served with the opportunity for the board of pardons and parole to consider whether to release the inmate on terms and conditions of parole. The "unified sentence" in that case would be for 10 years  (3 fixed plus 7 indeterminate =10 year sentence).

Sound confusing? It is. If you need representation in a criminal matter, or if you have a question about how your situation may be handled in the event of a conviction, give us a call. 

 

Continue Reading Idaho’s Unified Sentencing Scheme – Fixed and Indeterminate Time