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

The problem with over generalizations is - they are in fact over generalizations! Guilty. I may have suggested recently that your likelihood of getting relief on appeal is about the same as coming up with a perpetual motion machine; or a little less than winning that $200 million Power Ball; or swimming from Los Angeles to San Diego - even if you have spent years doing those "Total Immersion" drills. Just not very likely!

Turns out I may have been wrong again. The Idaho Supreme Court has reversed a district judge who summarily dismissed a case in which a criminal defendant claimed that his right to the effective assistance of counsel was denied by both his trial and appellate lawyers. 

I also told you (when you called me from Michigan asking for the names of those appellate attorneys) that Dennis Benjamin was simply a Genius Appellate Defender. And he is. Exhibit A offered in support of that proposition: McKay v. Idaho.  There, Justice Jones (W, not J) showed us once again that the Supremes will, indeed, go analytically into that dark night and turn a case around when the interests of justice require. The right to the effective assistance of counsel for a criminal defendant lives here. At least it lives long enough to grant a hearing on the question.

If you are a criminal defendant you have the right to expect that lawyer sitting next to you will do more than fog up a mirror thrust under his or her nose to establish he or she is living. If you are a criminal defendant in any Idaho case - state or federal - I want you to stop and go read this case. I mean it. Now. It is a good reminder of just how important an effective advocate can be for you in court.

Here's the bottom line - the district court that considered McKay's ineffective assistance of counsel claims granted summary dismissal of the case by which McKay wanted to show his lawyer did not do everything needed to protect his right to due process at trial and on appeal. Specifically, the lawyer failed to object to the jury instructions that arguably lessened the elements required to prove that McKay had committed vehicular manslaughter. McKay had struck a motorcycle from behind while he was (the State argued) drunk. Idaho law requires the State prove that the operation of his vehicle was "a significant cause contributing to the death" of the motorcycle rider. The jury instructions failed to require consideration of the question of whether McKay's drinking and driving was a significant cause. McKay claimed that the motorcycle's tail light was out and regardless of driving or drinking he would not have seen the rider, negating causation.

Dismissal of the post-conviction petition without a hearing was an error. This does not mean that McKay's conviction is vacated, but rather that the district court will have a hearing to determine if the other requirements for an ineffective assistance of counsel claim are present.  

Look - we miss stuff in trials. Most criminal defense lawyers work hard and do a good job. But we are human and we do not always get it right. So McKay has Dennis Benjamin to thank for some great work on his appeal of the denial of the petition for post-conviction relief. 

And what about your case? Have an ineffective assistance claim? Jump in here and tell us your experience. And go read my post "Three Things Clients Need From Their Lawyers" for information you need from your lawyer. Assistance requires communication and we do not always get it right. Coming soon here - Three Things Lawyers Need from Their Clients.

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Reversing a conviction for rape this week, the Idaho Court of Appeals reminded all of us that the system works when the rules leveling the playing field are enforced. That applies to defense lawyers and prosecutors alike. As Judge Gutierrez noted: "While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he is nevertheless expected and required to be fair."

So the case of State v. Troutman takes another turn down the road of justice.  Noting that a "fair trial is not always a perfect trial," Judge Gutierrez finds that the error here interfered with the right to a fair trial and results in giving Mr. Troutman another day in court. If you are facing any criminal charge, you need to read this case. Go do it now.  

The decision is a great reminder of the complexity of criminal trials, and it reminds me of the following THREE TRUTHS about the criminal justice system.

FIRST TRUTH - every lawyer in that trial has duties that he or she must oblige. Judge Gutierrez noted the prosecutor's duties to the people of the state, including the duties to the defendant. Hard blows are fine in the courtroom, but they must be fair blows. Mischaracterization of the evidence or the defense theory is not permitted. And mischaracterization is so easy to do in the heat of the battle in the courtroom. We are advocates in there, fighting for our client, and the fight gets hot sometimes and it is largely unscripted. When I read something that I have written here and reflect that it goes too far or misses the mark, I simply correct and re-save. There are no "re-do" buttons in an argument before that jury, so remarks need to be carefully considered. But none of us - not the best lawyers I know (Nevin or Spence) nor the best prosecutors for the State or the United States (hard to choose here) - none of us - gets it right everytime. We make mistakes and we fight too hard. In closing arguments we get going a hundred miles an hour and turn facts into stone when really the world is far more mud than rock. I won't cast stones at the prosecutor here, and neither did the Court, for I too have taken arguments at trial too far.

But the difference is critical - and the SECOND TRUTH - prosecutors have a higher duty than simply fighting the good fight. 

"The role of the prosecutor is to present the government’s case earnestly and vigorously, using every legitimate means to bring about a conviction, but also to see that justice is done and that every criminal defendant is accorded a fair trial."

When I get it wrong in pursuit of an acquittal I may affect the outcome of the trial, but my duty rests solely with my client. The prosecutor must temper his or her role in the battle against a higher calling - to make sure every defendant has a fair day in court. Maybe this decision will cause prosecutors to stop and reflect on that duty as they go about their duties.

The  THIRD TRUTH is that sometimes you need that review by another judge or higher court to save the day. As I said above, lawyers often get it wrong in the heat of the battle, and there is no immediate review as in a football game. We don't go to the referee upstairs with instant replay for a quick review. Judges sometimes get it wrong too. Here the appellate court thought the trial judge failed to adequately protect the defendant's rights. It happens. Thankfully the Court of Appeals was there to review the case and make it right.

So what does all this mean to you as a criminal defendant heading to trial? Get the best lawyer you can afford. Let your lawyer work hard to win your case. Trust him or her but remember - something will go wrong at trial. It always does. Hopefully your judge will catch it but maybe not. So be prepared to fight to the death to clear your name. And hope for one of those appellate miracles if that is all there is left to hope for.

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You may recall that I recently wrote about an incident involving a Boise man who was Tasered against Boise Police Department policy and the City Ombudsman's decision that the officers had violated their policy and his rights.  He planned to sue for damages while local officials could not find a criminal charge to use against the officer.  Today we have a reminder of just how much danger a Taser may pose to each of us if not used "correctly."

The Charlotte Observer reports that city will pay the family of a 17-year-old who died after being shocked by a Taser, $625,000.  The paper reports that the officer kept pulling the Taser trigger for 37 seconds - while the boy collapsed and ultimately died.  

Power - again the power we give the police requires them to act reasonably, so says the Constitution.  

And most officers do act reasonably. But when they do not - a victim has a cause of action for the damages caused by the officer's actions.  I know that Tasers are supposed to be safe when properly used, but the safety of the device depends on the person using it.  You know - sort of that "Tasers (guns) don't kill people, people kill people."  Let's hope this never happens in Boise - and that the officers we count on for protection will act reasonably.

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 Yesterday I wrote about an article in the Idaho Statesman concerning a finding by the Ombudsman that the Boise Police had gone too far when they tased a man - on the "buttocks."  Today the Statesman reports that man has hired a lawyer to file a lawsuit.  As telling - here is what the Murphy had to say:

Murphy concluded that the officer who Tased the man violated the Boise Police Department's use-of-force policy. He said evidence showed the man was shocked once in the back before he was handcuffed, and once in the buttocks after he was cuffed, and threatened with further shocks to the anus and genitalia.

"This clearly was excessive force. It's just not defensible. It's very troubling," Murphy said.

The Ada County Prosecutor has declined to prosecute this case because the conduct was not, in its opinion, illegal.  Or, if it was illegal, the office does not think a jury would convict.  Isn't that what we have juries for?  To make those decisions?  

An average citizen who pulled this crap would be prosecuted - and the smart folks at the Ada County Prosecutor's Office seldom have difficulty in finding a charge.  How about assault, battery, aggravated assault, disturbing the peace - just for starters.  Of course the United States Attorney's Office may still charge someone - one of these unidentified officers who still has his job.  But isn't it a little too cozy to have our lawyers at Ada County make this call since every day they need Boise City Police Officers to testify in the cases they do prosecute?

When I was in the Army there was a new commander who noticed that the NCOs in his new unit had "staffs" or "walking sticks" they carried.  The "sticks" were not standard issue - they served only to remind the troops who had the power.  Shortly the commander announced to the unit in formation:  "On the subject of 'walking sticks,' if you are an NCO who NEEDS one, carry it."  His message was received and the ridiculous practice ended.  

Power does not come at the end of the stick - it comes when the people you lead respect you enough to en-power you.  

Cops do not need Tasers when they have an overweight man on the ground and under the control of two or three uniformed officers.  Using that Taser (stick) was just a reminder of who had the power - not the guy on the ground.

I only wish the Ada County Prosecutor had shown us that it understands who really has the power here - the people's lawyers.  They represent us - you and me - especially when police officers go too far.

By the way - that 18 year veteran officer who ERASED an audio interview of the man on the receiving end of the taser understood who had the power and who might use it to prosecute a fellow officer.  Simply hit "erase" and make that evidence go away.  No crime there either?  Right - no crime.

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 An Idaho Statesman article reports on the findings of the Boise Police Ombudsman that officers used excessive force when they used their Taser on a suspect's "buttocks."  OK - so another poor fool got the Taser and now the Ombudsman wants us all to understand that even he can identify misconduct when he sees it - or hears it.  That would be screaming and pleading and the smell of "ham" frying.  Here's what the Ombudsman reportedly found:

"The suspect said that he was hit three times with a Taser after he was already handcuffed and face-down on the floor. Murphy's investigation found evidence that the suspect was hit twice with the Taser — once in the back before he was handcuffed and once in the buttocks after he was cuffed."

Of course the notion of excessive force usually involves injuries, sometimes deadly injuries. I posted about this before and provided a video of what it looks like to get the Taser treatment.  Check that one out to see what you think about this "non-lethal" force.  

Here's what I cannot figure out - what happened to those cops who could take control of a suspect without Tasing or beating or whining about how tough their job is?  Why do they get all that training on the use of reasonable force, only to pass a personal "tasing" so that they can then deploy the Taser instead of reason or reasonable force. The officers I meet in court seem fit enough to handle almost any drunken fool WITHOUT the use of Tasers, so why go for the simple solution?  

Then again, nobody died.  And give the officers a break on the "inappropriate language" beef.  The constitution does not guarantee civility, it simply outlaws cruelty.  These officers put up with a lot of grief from suspects, and an occasional verbal shot across the bow won't likely ruin anyone who is in that "under arrest" situation.  Of greater concern by far is the notion of young men (mostly) being treated unreasonably when arrested. 

If you have been subjected to excessive force during an arrest - join in here - share your story by commenting on this post.

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 Congrats to my brothers and TLC Warriors on their victory in Houston in a civil rights case that pitted Kent Spence and Rafe Foreman against Harris County Sheriff's Office and its deputies. After just four hours deliberations, the jury awarded the estate of Joel Casy $600,000 and $2.4 million to his mother.  The Houston Chronicle reported:

Casey’s death was ruled a homicide. An autopsy found the 52-year-old man died of psychotic delirium with physical restraint associated with heart disease.

He also suffered fractures to his seventh cervical vertebrae and the left horn of his thyroid cartilage, believed to have occurred when one deputy dropped a knee on Casey’s neck and pulled Casey’s head back, said the dead man’s attorney, Kent Spence.

You can read more about this case here .  Sometimes juries get it right.  Casey had complied with officers who showed up at his house to arrest him on a mental health warrant.  When he complained about the pain one of the handcuffs was causing him, Mr. Casey (a 52 year old man who suffered from schizophrenia) was taken to the ground and an officer put a knee in his back while pulling his head by the hair.  

Look folks - this stuff ain't rocket science.  Simply treat others like you would expect to be treated. There was no need for Mr. Casey to have died here, and a jury said so.  Police misconduct cases are tough, and I cannot think of any local cases in recent times that have resulted in a favorable verdict, but it can happen (remember Ruby Ridge!).  If you think you have a case - consult an attorney who can help you level the playing field. 

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 I happened to check out a blog entry tonight in which the Eleventh Circuit Court of Appeals decision in Buckley v. Haddock was reviewed.  In Buckley, Court ruled that an officer who used his taser on a handcuffed man arrested for a misdemeanor had NOT used excessive force.  The cop had ordered the man to get up off the ground, and threatened his with the taser.  Imagine this - the man who was on the ground crying, did not get up after being tased the first time, so the officer tased him again. And again. And again. Just like when your four year-old won't stop hitting his sister, so you have to hit him.  Right? Not excessively, of course.  Just a little whack to stop him from whacking his sister. Apparently that's the way they do it in the 11th Circuit.  I always wonder if the Judges who have sworn an oath to uphold "justice" would rule like this if it was one of their own family or friends on the ground twitching from the use of the "non-excessive force."

In ruling that the deputy did not use excessive force, the Court stated:

"Needless to say, officers acting alone may not always use any and all force necessary to complete an arrest without assistance. If Deputy Rackard had used more severe techniques (beaten [the motorist's] head with a club or shot him, for example), this case would be a different case. Here, the record shows that Deputy Rackard only used moderate, non-lethal force; and he did so only after reasoning with [the motorist], then after trying to lift [the motorist], and finally after repeatedly warning [the motorist]-a warning given before each use of the taser-that a taser would be used. In short, Deputy Rackard gave [the motorist] ample warning and opportunity to cease resisting before the deputy resorted gradually to more forceful measures. Even then, [the motorist's] injury was not great; and the deputy holstered his taser after using it briefly three times."

Here's an idea - let the drunk sit on the ground and call for assistance.  Too easy?  OK, just gently tase him then.

A friend of mine who is a preacher says that someday there will be justice, but until that day, there's "just us."  Check out the video and see what you think.

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I get at least three calls a week from folks who think their civil rights have been violated and want me to take their case. "Cause" might be a better description than case for the most part. So why is it so tough to get an attorney to take a civil rights case? Here are my Top 4 Reasons Most Civil Rights Cases Can't Find A Lawyer.

Reason number one - your civil rights have not been violated. The average person has a very broad view of his or her civil rights, much broader than provided for under the law. That view is almost always broader than the jury's view! In general, you have a civil rights case if someone, acting under color of state law deprives you of a personal right protected and guaranteed by the United States Constitution or a federal law. The most common personal rights include freedom of speech, the right to vote, due process of law, equal protection, and unlawful discrimination. Civil rights laws apply to persons acting under color of state law, and even that part is tricky. Sometimes a city or agency can be a "person" but not always.  Civil rights cases often involve police brutality claims, and claims against employers who retaliate against a public employee for some reason - like the cop in Chicago who won $900,000 against his former boss for retaliating against him when he tried to investigate police corruption.  One of my Trial Lawyers College Classmates represents firefighters who have suffered from sexual harassment and retaliation.  These types of cases have civil rights components.

Reason number two - the government has immunity from much of the stuff that otherwise would be a civil rights case. Immunity comes in two varieties - absolute and qualified. So, you cannot sue the judge who treated you poorly during a trial. He or she likely has immunity that protects him or her from a lawsuit. The same is generally true with law enforcement officers, unless you can show that they acted with reckless indifference to you.  Their immunity is likely not absolute - but qualified immunity may also keep you from collecting, if it applies.

Reason number three - your damages may not be enough to merit filing a lawsuit. OK - let's say that the cops locked you up for a day and that it was otherwise a violation of your civil rights (assume - due process). What money damages did you incur? Often when I ask this question the answer is "I lost a day's wages."  Civil rights cases, like every other civil case, requires a weighing of damages and liability against the time required to prevail. If the damages are not high enough to attract an attorney - good for you! You may have gotten a bad deal, but the harm did not likely ruin you. 

Reason number four - these cases are incredibly complex and very tough to win. Jurors want to trust the folks we end up suing in these cases.  So winning a judgment requires a lot of time and commitment by the trial lawyer. Years ago I tried a case in which my client (a deputy) had not been given a hearing before he was fired. An inmate under his supervision had killed himself, and the city blamed my guy because he had not apparently checked on the deceased every 15 minutes. I spent so much time on the case that by the day of trial I literally wished I had not taken it. I burned thousands of hours before we even got to pick the jury! In the end we won the case - but the difficulty of the case weighed on me for years. It is easier to run a race on a sunny day than in the mud and rain! And I felt wet and muddy after that "victory." On an hourly basis, my ultimate recovery worked out to about $10 an hour for all the time I spent.

So there they are - My Top 4 Reasons Most Civil Rights Cases Can't Find A Lawyer. Of course having said that - if you really HAVE a civil rights case maybe we can take your case. Got a question about your civil rights? Send us a comment or call us to talk about your situation.  We fight to protect your civil rights here in Boise, Idaho or wherever you may be.

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