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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I had the call again this week: "I did not do anything wrong. Do you think it is ok if I talk to the police? Because - actually - I already talked to them and now they tell me they know what I did. I didn't do anything!" 

Yes you did. You talked to the police. You thought that they would recognize you were innocent or that you could convince them you are innocent. You talked - and made their case against you better. And the truth is, your innocence may make you a bigger target than you are already.

Remember that fifth amendment thing? You know - the "you have a right to remain silent" schtick that the police always give on TV. Well - innocent folks frequently waive that right in the view that their innocence will set them free.  But what happens is the police almost always find some simple little lie that makes it look like you lied about the real issue. 

Imagine the questioning like this:

(Officer) "So you were at home last night?"

(You) "Yes."

"And you did not go to the Kit Kat Club?"

"No. Just ask anyone - they will tell you I was here. All night. Never left. Never went to the Kit Kat Club. Never been there. Ever. I sat here and watched TV until the news came on and then I went to bed."

"You've never been to the Kit Kat Club?"

(Long pause) "Well now that you mention it there was one time last May that I was in the parking lot of the Kit Kat Club ... but not last night."

"The parking lot? Not inside?"

"Well I may have looked inside ..."

And so it goes. You suddenly look like a liar. You lied when you said you had never been there and then you lied when you said you were only in the parking lot and you now look guilty. 

Everyone has the 5th amendment right to remain silent but almost nobody ever does remain silent.

So take 20 minutes and go watch the video here.  It will be the best 20 minutes you ever spend. Watch it and then watch here in the coming days as we talk more about not talking to the police.  

Now go watch it - your freedom may depend on it.

When you come back remember this: nobody in the history of the world has talked their way out of trouble with the police. You may think you can but you cannot. Period. And the number of people who have falsely confessed - that's right falsely confessed - and gone to prison for crimes they did not commit is astonishing.

Yesterday I listened to Dr. Charles Honts talk about the research on false confessions and it is frightening. Even worse - the cops always say that they can "identify" a false confession from a true one. As Honts says - the research shows that anyone's ability to tell a real from false confession is "no better than chance." In over one-third of all the proven wrongful convictions (usually through DNA evidence) the defendant falsely confessed. And juries listened to the evidence and convicted an innocent man or woman.

So lots of stuff here - do yourself a favor. Do not ever talk to the police if they are investigating you for a crime (I mean in a social setting the police are usually nice folks so maybe you could talk about the Vikings or the Cubs or the weather ...) and go watch that video linked to above. And if you are a cop reading this, and you share my view or have a need to respond - do it. Let's start a discussion. Tell me about your horror story.

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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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 In a decision handed down on December 30, the Idaho Court of Appeals vacated a conviction for robbery in State vs Faron Hawkins because the district judge did not sua sponte (on his own without a motion from the defendant) order a mental health evaluation during the trial of the case. Hawkins had contacted an FBI agent concerning his fear for the safety of his sons who were in prison in Colorado. The agent told Hawkins he could not help, but offered to put him in touch with another agent. The following day Hawkins robbed a bank in Portland, and an employee identified him. The FBI agent he had contacted tried to locate Hawkins without success, and 6 months or so later he robbed another bank, this time in Boise. As he left the bank he told tellers his name and said the robbery was "all because of George Calley (the FBI agent)."  

Fast forward to trial. Hawkins has proceeded pro se, but a public defender is acting as standby counsel. Hawkins and the public defender do not get along. Hawkins fires him, then later asks that the PD argue his post trial motions - including a motion for a new trial because Hawkins says he was delusional. At the hearing the PD says that if he was going to argue the motion, he would have to argue that it lacked merit. So the lawyer says his client is not delusional (impliedly) and the court orders a mental evaluation for the purpose of sentencing - not for the purpose of determining whether the Defendant could have assisted in his own defense at trial.  

The appeals court says that there were plenty of reasons for the trial judge to have ordered - before trial or during - a mental status evaluation, to see if Hawkins could assist in his own defense. Case reversed, start all over folks.  The decision as to whether to order the mental status evaluation is one of discretion as to the trial court, and here, there was an abuse of discretion when viewed in the totality of Mr. Hawkins' bizarre behavior and representations (for example, he claims the government implanted a chip in his ear and controlled his thoughts, he claims he worked for the CIA). 

Two things I take away from this case:  

First - if the defendant acts like he has mental issues, the lawyers and judges need to take a time out and get an evaluation. Strange behavior comes from somewhere and everybody needs to know where before spending days in trial. Stop the bus and get a psych eval!

Second - the US Supreme Court held that the test is different to determine competency when the defendant is represented as opposed to proceeding without counsel. To spare all the details, the test is understandably more rigorous if the defendant is pro se. So the judge has to be more attuned to the bizarre behavior and make the tough call. That is why he/she has the black robe and the impossible hours and caseload. If the court fails to order the evaluation, the right to due process is violated that the case gets reversed.

And this says nothing about the conduct of the defendant's advocate. We are advocates - and the mentally ill make that job extremely tough. Still, we have to work on their behalf. Make their argument. It might be a winner!

Someone needed to argue this guy's rights. Thankfully on appeal that happened. Nicely done Dennis Benjamin - Appellate Superlawyer!

Have an issue you want to talk about? Send in a comment and we'll send it around the horn.

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 Back in June I had been asked about the seizure of data from a computer in a post which set out that most basic of problems - suspects PROVIDING their computers to the cops for use AGAINST them or their spouse. My advice then was simple - don't do that! Why make it easier on the authorities to search the totality of a hard drive for evidence of some crime - either real or imagined?You cannot expect to complain later about the illegal images found on your computer that you have voluntarily provided to the police because that consent to search is not specific or limited. It is more like a license to find that hidden treasure you thought you had deleted - but which still resides on your hard drive.

So what about the other problem posed by the use of a warrant to obtain the data from a computer? When the government seeks a warrant to examine a computer or other electronic storage device, the NInth Circuit recently held that the magistrate judge must be vigilant in protecting the owner's rights.  In a case entitled "In Re: Search Warrants Executed On April 8, 2004" and docketed as CV-04-02887-FMC, out of Pasadena, California, Chief Judge Kozinski pointed out the need for magistrates to safeguard the information that might be inadvertently seized when agents "examine" the contents of the hard drive.  In other words - the review of the computer is not a fishing expedition for whatever information is there.  Rather, the search must be conducted and limited by the magistrate's finding of probable cause.

For our purposes, the decision reminds me that under our constitution, the government can not simply seize everything and then "discover" the crime. A search warrant must describe the evidence that is authorized to be seized and the search itself limited to the authority granted by the warrant.

If you have a search issue to discuss - send me an email and we can help you determine the nature and extent of the authority to search and your potential response to the examination of your private records.

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 This was the message on my phone today - "the cops are here, they think I have illegal pornography on my computer and want to search.  Can they search it without a warrant?  Should I talk to them?" And then the phone went dead.  I suppose the caller had a little talk with the nice officers and they straightened it all out - or maybe not.  Remember those TV cops who ALWAYS tell the obviously guilty suspect that he or she has "the right to remain silent" and how the suspects always "lawyer-up?"  In real life what happens is the suspect almost ALWAYS talks, because we believe we can talk our way out of trouble.  

That nice officer cannot solve the problem you face based on your explanation.  So do not talk. Let me repeat - DO NOT TALK TO THE NICE OFFICER.  Call a lawyer and have a real discussion - a confidential discussion - about your situation.

Back to the computer question - no, they generally cannot search without the warrant.  The constitution bars unreasonable searches and a search without a warrant is generally held to be "unreasonable."  That is not always the case as there are many exceptions to that rule - hence the reason to call the lawyer. 

Can they get a warrant?  Depends on what facts they have to convince a judge that there is evidence of a crime on the computer.  Make them get a warrant and if they do, then they get the computer.  But guess what happened in this situation? The suspect turned over the computer to the cops.  They get the computer and whatever is on the hard drive. Will there be evidence of a crime? If so, there is no problem with the search because the suspect consented to the search and seizure.

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 The testimony usually goes like this - 

"Now officer, as you observed the defendant's driving that night, did you see anything that caused you to believe he might be operating under the influence of some intoxicant?"

"I did.  He was weaving all over the place, crossed the yellow line and the white lines, and almost hit another officer who happened to be nearby."

And you know what happens next - that "testimony" is taken as the God's honest truth and the resulting confession and/or seized contraband is coming in as evidence against the defendant.  Unless, that is, there is some other evidence that proves the officer's stop and resulting seizures were not as he or she has testified.  Imagine a priest in the back seat, who can come in and testify that he was reciting the rosary at the time and the car traveled in a perfect line and the poor officer is just mistaken.  Could happen.  And if it does - is the evidence (confessions, seized dope, whatever) admissible?

The usual answer is that evidence seized as a result of an illegal search is excluded, and cannot be used at trial. That general rule is already subject to more exceptions than there are holes on a golf course, but last month's Supreme Court ruling in Herring vs. US has some arguing that the exclusionary rule may be on its last legs.  May be - but it is not gone yet.

The point of excluding evidence that is not seized lawfully is to stop the police from disregarding the constitutional protections afforded an accused person.  When I represent police officers charged with crimes they KNOW the law.  They understand the need to have a warrant based on probable cause or circumstances that take the case outside the warrant requirement.  They get it - that constitution thing is important!  So now the Supremes have weighed in and taken another look at the exclusionary rule and its 100 years of operation in the courts.  In it's summary form here is what happened in Herring:

Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database. Herring was indicted on federal gun and drug possession charges and moved to suppress the evidence on the ground that his initial arrest had been illegal. Assuming that there was a Fourth Amendment violation, the District Court concluded that the exclusionary rule did not apply and denied the motion to suppress. The Eleventh Circuit affirmed, finding that the arresting officers were innocent of any wrongdoing, and that Dale County’s failure to update the records was merely negligent. The court therefore concluded that the benefit of suppression would be marginal or nonexistent and that the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897.

So the "good faith" exception saves the day, no particular benefit to be derived by Herring or society as a whole because the authorities were only negligent.  Notably, negligence is NOT a basis for a civil rights case generally, so in that sense the ruling is consistent with civil law.  But is this the beginning of the end for the exclusionary rule? Chief Justice Roberts advocated the elimination of the rule when he worked for President Reagan as a staff lawyer.  We likely know where he stands - get rid of it!  It's a waste of time and not fair.  Guilty men have gone free!  

First - it almost never happens that way.  The number of times that guilty men or women have been set free by  the exclusionary rule is simply not that big. Has the rule helped to reduce constitutional violations by police officers?  I am not sure, but most in the criminal arena will answer depending on their position.  As sworn defense types we recite the party line- "of course it has.  Without that rule the cops would run amok!"  OK - maybe not.

So is the rule on the way out or is this case not really that important?  After all, the decision really rests on an exception - good faith.

The decision was 5 - 4, so it may be that the exclusionary rule, as a federal requirement, is in real jeopardy, if something happens to one of the four "liberal" justices.  Remember that Kennedy joined the majority - well - whichever side he is on is almost always the majority.  Most states have statutes and decisions applying the rule based on state law, so each state might take some time to decide the issue if the Supremes ever get rid of the rule.  Remember - the safest course IF YOU OR A LOVED ONE OR A FRIEND OR SOME GUY YOU MET ON THE STREET is being asked about criminal conduct - is to follow Miranda - say nothing.  And ask to see the warrant before they search.

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 So the last time we talked I told you to keep silent, but what if you talked? What if you told the nice detective that you bought the drugs from your source in El Paso, who just happens to take delivery across the Rio Grande from "Phillipe" and his brother.  Well my friend - you've got trouble.  Trouble. With a capital T and that rhymes with G and that stands for GUILTY!  Usually. Suppose however that the cops went "Slumdog Millionaire" on you before you confessed, having hooked you up to a 12-volt and leaving you all shaking and unconscious.  What then?

The first rule in confessions is they must be freely and voluntarily given. That's what the constitutions (state and federal) require.  Now I have never seen the car battery trick except in the movies, but I have seen plenty of bruises and heard plenty of stories about coercion.  Not all are true, and if the officer promises to help you and take your story to the prosecutor, that is not coercion. Usually we are talking beatings, sleep deprivation, yelling and screaming, perhaps the "rubber hose," before a statement is coercive enough to get it bounced here.  Promises and inducements may do it, but not usually.  And the  cops can lie to you to get you to confess - no problem there.  Despite what you may hear, not many statements are thrown out for this reason.

The second rule is that a confession may be excluded from evidence at trial if you were not read your Miranda rights BEFORE you told them you stole the car or sold the drugs - BUT ONLY if you are in custody and subject to interrogation.  Custody is usually pretty easy - if you cannot leave, whether they have "arrested" you or not, you are in custody.  Favorite custodial settings include the police station, investigation room, police car or down on your knees with an officer over your head yelling that you may not move.  Now, what is interrogation? Questioning intended to elicit an incriminating response.  Like - "Leroy, where did you get all that heroin?" Seriously. 

This short explanation is not intended to cover all the possibilities, as there are EXCEPTIONS to the rules that exclude some statements.

So what do you do when you have answered the questions? Get a good lawyer.  He or she can review what happened, give you advice, file motions to suppress and maybe keep the statements out of evidence.  Not every confession gets into evidence, but it is so much easier for the lawyer if you simply do not talk.

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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.  

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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. 

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The Idaho Court of Appeals has ruled that a police officer must give Miranda warnings to the driver of a car after finding drugs in the car, when he has been sufficiently treated like he is in custody, and not simply the subject of a traffic stop.  In State v. James, a divided Court held that the appellant was entitled to have been warned under the circumstances presented.  James had been stopped late at night, his car searched (with his consent), and he and his passengers had been removed from the car and frisked.  Officers under such circumstances who ask the magic “who owns the dope” question must first advise the detainees that they have the right to remain silent, per Miranda.

James is not an earth shattering decision, although it is seemingly  inconsistent with the United States Supreme Court decision in Berkemer v. McCarty, 468 U.S. 420 (1984), and the Court’s earlier decision in State v. Medrano, 123 Idaho 114, 844 P.2d 1364 (Ct. App. 1992). In those cases the decisions involved more routine traffic stops.  The test of whether a person is “in custody” is still objective -  “how would a reasonable man in the defendant’s circumstances have understood his situation?”  With the usual traffic stop falling far short of “detention,” defendants have typically not received the protection of Miranda. In Idaho, a traffic stop – involving a brief stop and questioning by the officer – without such warnings, has not been the basis for suppression. The Court here distinguished the facts, finding it looked more like an arrest than a traffic stop. In particular, the deputy threatened to arrest everyone unless someone admitted possession of the drugs. The driver got the message – he confessed to save his friends from arrest.  Judge Perry (dissenting) did not agree that the circumstances added up restraint that was akin to a formal arrest under the totality of the circumstances.  In particular, he did not think the officer's threat to arrest everyone in the car was enough to elevate the investigative detention into custody. 

So what do we take away from this decision? Miranda warnings are required when the circumstances would cause a person to believe he or she is under arrest, particularly when an officer is treating the situation like an arrest. If you have been taken out of the car, separated from other passengers, frisked, had the dogs called in to search your vehicle and the cops are telling you somebody is going to jail, you probably get that all too famous warning: “you have the right to remain silent….”  Now, will you remain silent?  All too often persons stopped by the police give them all they need to produce a later conviction.  Not every stop will result in Miranda warnings, but this case gives greater clarity as to the circumstances that may lead there.  But what about the typical DUI traffic stop and questioning by the officer?  "Have you been drinking?"  In custody or not?  Likely not if it is the usual sort of case, but James may give us a better argument that statements thereafter are subject to suppression.

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