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

 In private practice, criminal defense lawyers are frequently asked about public defenders.  The opinions of the folks asking about their appointed lawyers often takes on a familiar sound: 

"Should I keep this guy?"  

"He / she hasn't even been out to see me!"  

"I want a real lawyer!"  

The truth is that public defender IS a REAL lawyer and he or she may be the best thing going for you and your case. 

By way of full disclosure, I served as a public defender in the ARMY - as part of the JAG Corps. I learned to try cases from three senior "PDs" (we were called Trial Defense Counsel in the Army) who I would still rate in the top ten trial lawyers I have ever seen over my thirty year career.  We were proud to serve as defense counsel and we never worried about how many hours were spent preparing for trial because we did not have to bill or collect from our clients.  Uncle Sam paid us the same amount each month whether we spent forty or eighty hours a week working on our cases.  

Here are three reasons you may want to stay with the public defender (and as I write this I realize this is "negative marketing" - as I am suggesting you may be better off not paying for your lawyer):

Reason 1 - your case may be more complex than your wallet's ability to pay for counsel. Many criminal cases are incredibly complex, requiring analysis of many legal issues and factual considerations. I am in a case currently that involves over 100,000 pages of documents, each of which must be reviewed and analyzed.  Reviewing documents takes time.  Time is what we sell as private counsel - so you could expect that the more time we spend, the more the case costs.  But a public defender in a complex case may be able to commit the same amount of time and resources to your complex case and not worry about collecting for his or her fees.  If you are in a complex case, you need to ask your PD if they have the time to devote to your defense.

Reason 2 - that PD may have a better grasp of the law of your case and the local procedures than an inexperienced private counsel.  When I first started practicing in Boise, I was hired to "birddog" a criminal case for a family with unlimited funds, who had been the victim of the crime at issue. I went to the Preliminary Hearing and when the Defendant waived, I wasn't sure exactly what would happen.  I had trial experience - couple murder cases included - but that experience was not "local." Another lawyer explained the result of the waiver and I was able to report accurately to my clients that the Defendant was headed toward arraignment. That Defendant had a public defender who breezed his way through the process because he had an intimate knowledge of the process - he was in court every day and understood exactly what was coming next.

My point here is that the PD CAN really serve a client's best interests, in part because they have day in and day out experience in the courts.

Reason 3 - PDs are REAL LAWYERS!  I used to really hate to hear this crap. Even in the military, a defendant can hire "private counsel" to handle a courts-martial.  When I had this happen I usually felt relief and regret about the situation. Often I was happy to have another lawyer to come into the case and bring his or her experience to the defense of my client. Relief.  The regret came with my own sense of pride in the job I could have done - after all - I was a REAL lawyer too!  Still, in the end the decision needs to be made by the person facing the charges. 

I want to add that the local PDs I interact with are generally GREAT lawyers.  It's true!  They work hard, care about their cases and genuinely operate in the best interests of their clients.  

So if you are happy with your Public Defender - you may be best to stay the course. If you want another opinion about your case, check with a private criminal defense lawyer, whether that is me or someone else.  But in the end - understand that your right to have the effective assistance of a lawyer who is paid for at public expense is one of the most important protections available to any defendant in any court in this land.  

Thanks for your service PDs.

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The other shoe has fallen.  John Bujak, formerly the Canyon County Prosecutor, has been charged with Grand Theft by Deception and by Embezzlement, and the investigation of the case is set out in a detailed affidavit that is available online at the Idaho Press Tribune website, or here.  But before you think this thing is over, I bet there are more falling shoes in our future.  Here's why:

First, the affidavit indicates that although Bujak maintained neither he nor his chief of staff Tim Fleming would profit from the contract between Canyon County and Nampa City, BOTH did profit and neither apparently thinks there was any problem with their conduct. Bujak told the investigators that the issue wasn't whether he took the money, but rather, whether he was permitted to take the money. Apparently in his mind, those statements that he would not personally profit (the Canyon County Commissioners say that they were led to believe Bujak would not profit) were only intended to refer to his agreement to "not take a salary increase."  So the investigation reveals that as the money came in from the City, which believed it was going to pay the County, Bujak used the money for his personal expenses, transferring money to his own private accounts.  It also shows that in late March 2010, Bujak used the same money to buy a $10,000 cashiers check for Tim Flemming - Bujak's former chief of staff. Why was the $10,000 cashiers check, purchased out of Nampa City funds that were intended for Canyon County, going to Tim Fleming? Gift? Bonus? Mr. Fleming may have some explaining to do.

Second, the affidavit indicates that the contract (Prosecution Services Agreement) was between the City of Nampa and Office of the Mayor, and the Canyon County Prosecutor and Canyon County. Bujak's claim has been that it was a personal contract between he and the City. If the contract actually is not in his name, then the money is likely not his; it belonged to the County. All of this stuff will impact on the pending lawsuits and bankruptcy proceeding. That failure to disclose to the Bankruptcy Court that he had possessed and sold a Rolex watch, could still land Bujak in another criminal case - in federal court. And of course there is the divorce proceeding and Bujak's lawsuit against protagonists Bob Henry and the Michaelson law firm - remember he said they defamed him when they claimed that he had received money that he wasn't entitled to?  Kind of sounds like the charges of Grand Theft in the new criminal case, doesn't it?

Third and foremost in my mind is the likely involvement of the Idaho State Bar.  Bujak has been practicing law on a contract basis while this has been pending. He serves as an officer of the court and his conduct is subject to review by the Bar. 

Then again - I guess that potential fourteen years for each GRAND THEFT count will probably consume his time.  After all - he took the money - admits he got $236,000 from the City of Nampa that they believed was going to the Canyon County Prosecutor's Office. The only question is whether he was ENTITLED to take it.

I bet Kerry Michaelson and Bob Henry will sleep a lot easier tonight. They called it years ago.

And Mayor Dale, City of Nampa, Canyon County Commissioners: who was driving that bus when each of you allowed this mess to go on for a year? Just how is it that Canyon County taxpayers got Bujaked on your watch? You've got some explaining to do, too.

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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.

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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.

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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.

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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.

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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. 

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Here is one of those questions we get at least once a week: "what happens if I violate my probation agreement?"  The answer depends on how big a mess you have made of probation and the relationship you have with the probation officer. Your probation officer could decide to tighten the reins a bit - and more closely monitor you. He or she might require that you do additional counseling or change your curfew time. A probation violation could result in your probation officer imposing discretionary jail time if the court granted that as a condition of probation. It is also possible that he or she might not do anything more than talk to you about the violation - and give you a break.

But you could also end up with a probation violation being charged by the State against you in the underlying case, and that could result in imposition of the suspended portion of your sentence. Assume that you were placed on supervised misdemeanor probation for two years, and that you agreed to not violate the law during that time. If you get a DUI or a simple battery charge, the prosecutor could file a probation violation charge in addition to the new crime. If you were to admit the violation or if you were found to have violated the probation agreement, you might end up with jail time on the first crime and the new crime.

Bottom line - a probation violation can mean a world of hurt. If you promised to stay clean and sober - do so. Stay out of trouble with your probation officer and live up to your agreement. Whether it is a felony or misdemeanor probation, you hold the keys to your freedom. Follow the agreement and you stay out of jail or even worse - prison.

As I write this I have a client facing prison for his probation violations. He said something to me that I had missed - he said he would rather have the possibility of a return to probation and the eventual chance to have the crime reduced to a misdemeanor on the successful completion of probation. If you go to prison, that will not happen. That opportunity for a change in the nature of the crime from felony to misdemeanor requires successful completion of probation. The trouble is, by the time you realize what you may have given up - it is may be too late. A probation violation can mean another stint behind bars and another "strike" against you when it comes to employment and opportunity.

Charged with a probation violation? Give us a call and tell us about your situation. Maybe we can help. 

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The Idaho Statesman may have said it best: "Amil Myshin fought for fairness."

He was simply one of the best lawyers I ever met, and more importantly, one of the nicest men to walk our streets. He inspired. He taught. He fought - boy could he fight.

The news that Amil had passed found me last Tuesday in Challis. I was getting ready to peddle day three of Ride Idaho when a friend's text message nearly dropped me. He was gone and most us had not even known he was ill. But then again, that seems so Amil - not letting on to the rest of us that he was sick.

Not long ago I was in trial and Amil was walking in the hall.  

"How's it going?" he asked.

"Tough. I can't seem to catch a break this time."

"Comes with the job. Just keep trying."

I will. I will keep trying to do what you did, Amil - I will fight for fairness for our clients. I will try to pass on the lessons I have learned after twenty-five years, just like you did. And I will try to treat people like you did - with grace and humility.

Man, I wish I could have a little more Amil.

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In the world of "star justice," Roger Clemens' trial for lying to Congress started out looking like "must see TV." It quickly fell apart and the court declared a mistrial based on the failure of the prosecutors to play by the rules. Only six days into the trial, and on only the second day of testimony, prosecutors apparently defied a court order and presented prejudicial hearsay testimony the judge had already barred from trial. The judge specifically found that the government's conduct had placed the case in a posture where Clemens could not get a fair trial from the seated jury. But could he get a fair trial from another jury? Will the government get a second chance to convict the baseball superstar?

Clemens' defense lawyers have filed a motion to dismiss the indictment, claiming that Roger cannot get a fair retrial based on the government's conduct. The motion is 32 pages long and provides some great reading. Others have written about this in far greater detail than I can here, but the general principle to take away from the motion is this - you have a right to a fair trial in every criminal matter. A fair trial may include hard evidence, prejudicial witnesses and physical evidence that strikes a hard blow. Judges preside over criminal case to insure that the blows will be within the bounds of the law and that the parties will play by the rules. When prosecutors do not play by the rules, the court must step in and use its power to insure a fair trial. 

In the Clemens case, the prosecutors permitted hearsay statements made by Clemens' ex-wife to be played to the jury despite a prior court ruling that prohibited them from doing so. The prosecution team had put together the video clips and transcript that were shown the jury - so even if they did not intend to violate the court's order, they had a duty to insure that the order was complied with. In other words, after spending millions of taxpayer dollars to prepare for trial, somebody should have reviewed that video and transcript to make certain they did not violate the judge's order.

After all - this million dollar fiasco is all about personal accountability, isn't it? 

So now we await the government's response to the motion. We will follow-up on this as it develops.

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Have you noticed how many attorney websites are all about the lawyer and pay no attention to the information that people charged with criminal matters are looking for? Most lawyer websites scream: "Hire me! Do it now! You might go to prison if you don't act within the next hour! Call me now!"

I hate those websites! Instead of providing information, the lawyers using the sites try to scare you into hiring them based on emotion, not information. The truth is you might not even need an attorney to handle your case. So before you sign that retainer agreement, get informed!

This blog is different. There is a ton of free information here for you to review based on your needs. Have a DUI case? Check out the DUI section of the Topics. Have a question about how to value a personal injury or wrongful death case? Look at the Civil Practice section.

The Topics section can lead you to information that you can use to help you become informed on whatever area of law you are interested in. Well, not every area - this blog is really about criminal defense, civil rights and civil trials. With over thirty years of experience in those areas, my goal is to help you become better informed!

And what if the issue you have is not listed in the Topics? Send me a question and I will get back to you. We promise to get you information - then you can make a great decision about whether you need a lawyer and which lawyer you want to hire.

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A felony criminal case in Idaho state court may begin either by indictment or by the filing of an information. If the state opts for information (think of this as a formal complaint but no grand jury proceeding), a preliminary hearing will be held to determine if there is probable cause to believe that the defendant has committed a felony crime. Now this is not the situation with misdemeanors - a preliminary hearing only applies to felony cases.

Here's the way this works - suppose that you are suspected of grand theft of $20,000 from a neighbor. The state prosecutor might go to a grand jury - the "secret" body that can "indict" a person if it finds there is probable cause, or the state can simply charge the offense and go to a preliminary hearing. Both the grand jury and the Magistrate at a preliminary hearing are charged to determine whether there is probable cause to believe that the crime has occurred and the charged person is liable.  The test for probable cause is whether it is more likely than not that the person committed the charged offense.  "More likely than not" is not proof beyond a reasonable doubt - it is just proof that makes it more probable than not the crime occurred.

The alternative way to get this $20,000 theft before an Idaho district court is to use the preliminary hearing process. Instead of a grand jury, the probable cause determination is made in an open, public hearing before a magistrate judge. The person facing the charge will be present, can have a lawyer to cross-examine the witnesses and best of all, everyone can evaluate the witnesses.

But should you waive your right to the probable cause hearing? This question arises because the state usually conditions any plea agreement on a waiver of the preliminary hearing. They frequently say something like: "Look, if you agree to waive the prelim, we will agree to recommend probation on a plea to the theft." In truth, the state would rather not have to go through the process of calling witnesses and having the hearing.

If you want to preserve the plea offer, you may decide to waive the preliminary hearing and let the case go to the district court. If you have already waived that other important right - to not say anything incriminating - and confessed to the theft, proving probable cause could be limited to your own confession. If you waive the preliminary you are usually only giving up the right to have the magistrate determine probable cause, but the burden of proof for probable cause is, as I said above, not proof beyond a reasonable doubt but proof by a preponderance. 

Talk to your lawyer about this as you head to a preliminary hearing. Have a plan - often that plan is intended to limit you punishment and waiving the preliminary hearing may not have any real effect in your case. There was a time when magistrates gave a serious look at the probable cause determination, but it seems to me that the lower burden of proof almost always insures a finding that binds over the case to the district court, so you may not be giving up much when the hearing is waived. On the other hand - if you are going to trial you may gain valuable information about the state's case by forcing them to put on their witnesses at a preliminary hearing.  

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Yesterday I mentioned jurors, judges and lawyers - each providing a risk attendant to trial. Let's face it, most of the time the decision to try a case is largely an exercise in risk management. Great motions that result in the dismissal of criminal charges are about as rare as pink bison roaming around Jackson Hole. We talk about great motions and we argue great motions but judges seldom grant the relief we would like for our clients. In civil cases this is also true. How many civil cases get tried? Not many. Mostly we file papers and shake our spears and argue our causes to anyone who will listen, but then we mostly settle. 

But what about trials? The great battles? Our great legal theaters?

Trial is risky. Yesterday I pointed out three risks, and here is another one that I do not often enough consider.  Witnesses are risky, too. It seems to me that in every trial some witness testifies to something that I never had expected to hear.

"Did you see the Defendant on March 3, 2010, at Piggly Wiggly?"

"No."

"What? I thought you told the investigator that you saw the Defendant at the Piggly Wiggly."

"No sir... all I said was I saw him. Can't really say when I saw him, but it was not at Piggly Wiggly."

It happens. That killer witness who is expected to answer the "where was Waldo when the bank was robbed" question, changes his testimony. Now your defense evaporates and the alibi you had told the jury about in opening is gone.

A few weeks ago in a homicide case Courtney and I tried, I simply suggested to the state's witness that our client believed he had been cleared through an intersection by pedestrians in a cross-walk. 

"I believe the Defendant thought he had been waived through," he said. Their witness confirmed that our client's version of events was worthy of belief. He confirmed that our client had believed what he said he believed. 

"No further questions, judge." I sat down quickly.

Witnesses are inherently unpredictable. If you coach them too much they come off as coached. If you trust them to tell their story they come off as unprepared. 

Which takes me back to the premise advanced yesterday - trials are unpredictable. So before you go charging off to trial in your case, you must consider the risks. And here is one more thing to consider: nothing trumps experience.

By this I mean that an experienced trial lawyer is your best hedge against the unpredictable. Those personal injury mills - you know - "we settle every case for 100 times what the insurance carrier wants to pay" - those guys seldom if ever try cases. So if your case seems likely to go to trial, get yourself an experienced trial lawyer. Think about this - if you were on a plane that had lost power and was about to ditch in a river - would you rather have "newby" pilot with little or no real world experience or Sully Sullenberger at the yoke?

An actual trial of a civil or criminal case is just that sort of thing. The sky will get black and the rains will pour down and it will seem like you are going to die. You might. You need someone to fly you out of that weather and protect your future.

But enough about dark clouds and unpredictable results. It's August. The sun is shining and in another week I will be riding a bike 500 miles or so through the mountains of Idaho. If you have a question about whether you should be going to trial, give us a call.

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Every day I am faced with advising clients on the risks associated with trials. Whether the case is civil or criminal, at some point you face this question: Should you go to trial or accept a settlement? The thing about settlement - as our esteemed Congressmen and women would be happy to tell us today ("economic meltdown averted") - is that EVERYONE walks away from the table wondering how much more they could have gotten. And - as we frequently tell our clients - everyone walks away feeling like they got screwed.  Sorry to say it, but it is true. Everyone.

But what about the risks of trial? Consider these three:

The first risk of trial is predictability.  When you go to trial in any case, civil or criminal, you are asking a jury to decide what set of facts existed at the relevant time. Was the defendant driving under the influence of drugs or alcohol? Was the plaintiff injured as a result of the defendant's negligence? How fast was that truck going? 

You see the job of the jury is to find the facts underlying a case, and then to apply the law to the facts and render judgment. Juries are not predictable. They are not generally trained for this task and often they get lost in the details of the case. They may look at a "fact" that is obvious to you and not believe it to be what you believe it to be. By way of example, in a case I tried a couple years ago, the question before the jury was whether a young woman had consented to sexual activity with my client. My client testified about their ongoing relationship, their having lived together, the circumstances that evening, and eventually "the act" having occurred at her apartment. The jury did not believe the young woman had voluntarily consented to sex. Even with all of our "proof," the jury went the other way.  Juries are inherently unpredictable.

The second risk associated with trial is attorney performance. I hesitate to mention this but not all attorneys have similar experience or abilities. Some lawyers believe that misdemeanor criminal experience is the same as trying felony cases. Nonsense. I looked at a website from a young attorney the other day who was playing up a dozen or so misdemeanor jury trials - many of them resulting in not guilty findings. Misdemeanor battery is not the same as felony aggravated assault. DUI is not the same as manslaughter. The skills needed to try a misdemeanor cases are similar, but the experience is not the same. And then there is the actual performance problem. That "hot-shot" trial lawyer can have a bad day, or even a bad witness. It happens to all of us. Prepare as we will, it does not always go our way. Trials are fluid - we have to react to rulings by the judge, changed testimony from witnesses and reactions of jurors to our story. Lawyer performance at trial is also inherently unpredictable.

The third risk is client performance. A client is on trial from the moment he or she is first gawked at by the jury. The client is under a magnifying glass. How he or she dresses, gets to court, walks from the parking lot to the court house, and reacts to testimony - well - the jurors are watching it all. And then there is the "should the client testify" issue that we face in every criminal case. In a wrongful death or accident case the issue is likely "when" should our client testify and how will he or she do under cross-examination. Clients at trial are inherently unpredictable, too!

So in the face of all this uncertainty a settlement of the case can be very appealing. A settlement produces a result - and eliminates the uncertainty. So should you go to trial?

Times a wasting and I must go to a client meeting, so I will follow up on this tomorrow - but until then - think of other ways in which the average case can be "unpredictable." How about the unpredictable nature of that judge? Black robes do not make you more predictable! And jury instructions. After thirty years I still think they are often incomprehensible. And juror experience? Nothing trumps experience! So the jury trial is full of unpredictability!

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Courtney Peterson is back with more info on expungement:

Expungement in Idaho isn’t really a complete expungement of all the records in a case. I suppose it’s a bit misleading to use the term “expungement.” In Idaho, you can have your case dismissed based on Idaho Code 19-2604, but the record that you have been charged is still there. A search for your case on the Idaho State Repository will show that you were charged, even if the case has been dismissed or you’ve been granted a Withheld Judgment. The record will reflect the disposition of the case; for example, “Dismissed By Court” or simply “Dismissed.” Evidence that you were charged and perhaps convicted of a crime in Idaho will never fully be erased. There will always be a record of what violation you were charged with, whether you were convicted, acquitted at trial, given a withheld judgment, or the charges dismissed. The only exception to this rule is if the court has sealed the case, which generally only occurs in juvenile or certain domestic relations cases.

Most people who call about expungement tell us they want their conviction “completely off” their record so that no one in the world will ever have access to it again. Sorry – that is just not going to happen. Once you have been charged, absent a court miracle or clerical mistake, the fact that you were a suspect in a criminal case will show up on the Idaho State Repository. Additionally, there will always be a record on the FBI’s National Crime Information Center (NCIC for short). This is a national database that only law enforcement personnel have access to, but that record lists every arrest and every charge in your history. There is no real procedure to get these records expunged or erased.

Now, the good news. In Idaho, you get one Withheld Judgment. ONE. If you plead guilty to a charge, whether misdemeanor or felony, you can ask the court to grant you a Withheld Judgment. If you are eligible, the court will hold off on entering a formal judgment of conviction against you when you plead guilty. The judge will instead withhold judgment and after you have successfully completed probation, you can petition the court to dismiss your case. The beauty of a withheld judgment is that it allows you to honestly say that you have not been “convicted” of the specific crime you were charged with. If you’re successful on probation, you can have the case dismissed and there will never be a judgment of conviction against you. Keep in mind, however, that there will still be a record of the charge and your guilty plea on the Idaho State Repository.

Don’t let the fact that you’re only afforded one Withheld Judgment deter you from attempting to get a case dismissed after probation. Even if the judge has entered a judgment of conviction in your case, you can still petition the court under Idaho Code 19-2604 if you’ve successfully completed your probation.

Want more information about getting a case dismissed even without a Withheld Judgment? Give us a call.

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Courtney has today's blog entry - and she looks at probable cause.

I just found out I’ve been driving around with only one working tail light and it got me thinking about reasonable suspicion and DUI. The only thing a police officer needs to pull you over is reasonable suspicion that a crime has been or is being committed. One of the most common complaints we hear when a person has been charged with driving under the influence is that their driving was fine, they can’t imagine why the officer had reason to pull them over, and it must be entrapment. Reasonable suspicion is easy. It can be as obvious as my burned out tail light or as minute as not having a turn signal on for at least five seconds after a stop sign (which is the law in Idaho, by the way). Most DUI stops occur early in the morning after the bars have closed. People cry entrapment because an officer parked near the bar and followed them after leaving. That’s not entrapment. Just leaving the parking lot of a bar is not generally enough for an officer to pull you over. They’ll just follow you for a bit and wait until you do something that gives them the right to pull you over. There’s your reasonable suspicion. Once you’re pulled over for "weaving inside the lane" or going one mile over the speed limit, they’ve got a chance to see if you’re under the influence. Stop leads to field sobriety tests, a breathalyzer demand and maybe - a DUI.

Here's one more thought:  When a police officer pulls you over, what is the first thing he or she always asks? Even before you're asked for your license and registration, it’s the same question every time.

“Do you know why I pulled you over?”

And do you know what you should say every time they ask you? NOTHING. Absolutely nothing. The officers are looking for an admission. They want you to tell them why they should have pulled you over. If they’ve got you for failing to use your blinker and you tell them you were speeding, how many tickets do you suppose you’ll get? My guess is two.

Have a question relating to a traffic stop?  DUI?  Reckless or inattentive driving?  Give us a call.

Charged with a DUI and wonder if the stop was legit? Give us a call.

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I heard again yesterday the old story about Oliver Wendell Holmes' reminder to his law clerk, who questioned whether a decision was "just" or not. Holmes is reported to have told the clerk, "we're not in the justice business; we're in the law business." Indeed we are. There are unjust results that flow from our system, and you may judge yesterdays decision as unjust. The system worked fine - and the jury did it's job. Their decision is simply that, their decision. Just or unjust, each side had their day in court and now we all move on.

While the country debates the jury verdict in the Casey Anthony trial, I thought it might be good to take a minute to consider how any criminal case can be destroyed by the DEFENDANT - not the lawyer - who thinks he or she can talk their way out of trouble. Consider the following three things you can do to destroy your criminal case, some of which are illustrated by the Anthony case.

First - lie to the police or investigators. Why can't defendants simply not talk to the police? Every 5 year-old in this country has heard that he or she "has the right to remain silent," but nobody ever does. Instead of simply refusing to answer questions, most defendants tell the investigators some story that they think will get them out of trouble, but rather, sinks their ship. If you tell lies to the police, then expect the prosecutor to reveal you as a liar. Silence is better than lying and even telling the truth to the police without first talking to a lawyer is dangerous. Remember that Casey Anthony's lawyer had to admit in opening statements that she was a liar. That is not the way you want any case to start.

Second - tell the lies to your friends and family. Investigators and police call your friends and family members "witnesses." What you tell them will almost certainly be used at trial to impeach you - that is a nice way of saying that your lies to your friends will also be used to reveal you as a liar. Again - the truth may set you free but those little lies to friends can convict you. Don't be tempted to tell friends and family about your situation, just sit tight and let time take its course. You don't need your brother's best friend's former girl friend to show up at trial and testify that you told her a different story than the one you told the jury! 

Third - insist on taking the stand at trial. Smart clients listen to their lawyers. Some clients never listen and insist on doing it their way (mostly these are lawyer-clients, or clients who think they know more than their lawyer). The Defendant in a criminal trial always has the right to take the stand and frequently I advise my clients to do so. The jury trial is all about the story of the case. Usually the Defendant will have to tell the story, but not always. Many cases are won by lawyers who are brave enough to keep their clients off the stand. It depends on the case, and the defense offered. And it depends on the ability of the defendant to stay out of trouble on cross-examination. My point is this - listen to the lawyer who is trying your case. No matter what those talking heads and vigilante former prosecutor turned millionaire TV talk show hostess insist - the person who knows you and the case is YOUR lawyer.

Getting ready for trial? Think you may have blown it by talking to the police or lying to a friend? You may have, but that verdict in the Anthony trial reminds us that juries usually take the instructions to heart and insist that the prosecutor prove its case beyond a reasonable doubt. Trust your lawyer and the jury and play it smart.

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 In an odd combination of Justices, the United States Supreme Court has ruled that the 6th Amendment right to cross-examine and confront witnesses against you includes the right to question the lab analyst who tested your breath for alcohol in a DUI case. Justices Ginsberg, Scalia, Sotomayor, Thomas and Kagan joined in the majority opinion in Bullcoming v. New Mexico, handed down yesterday.  Opting for efficiency over exercise of the right to cross-examine, Justices Kennedy, Breyer, Alito and Chief Justice Roberts thought a certified written report could be introduced by a technician familiar with the laboratory procedures. The result may turn the DUI business on it's head.

The Court has now specifically ruled that merely calling that report "scientific" is not enough. This should signal the end of "the machine says he's guilty, its on the print-put." Prosecutors will have to actually call THE lab analyst so he or she can be cross-examined. Isn't that the way it should be if the State is trying to convict you of a crime that will leave you unable to drive and serving time?

Gotta go to the dentist so no more time to write about this, but you can read all about it at the examiner.com here.

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In the past six weeks, Courtney and I have tried two criminal cases in Ada County.  The first case charged vehicular manslaughter - two felony counts. Last week we tried a case that charged aggravated assault with a deadly weapon and injury to jails (both felonies), as well as misdemeanor counts of false imprisonment, battery and destruction of a communication device (a cell phone). We picked juries in each case, and had the benefit of a jury consultant on the manslaughter case. As we have earlier reported in this blog, the jury in the manslaughter found our client not guilty of the felonies. Last week the jury in the aggravated assault case said not guilty as to the disputed charges (but guilty of the battery in the face of a self-defense claim), but guilty of the two misdemeanors our client had admitted committing.

So what did we learn?

In each case we approached the process of jury selection as one of inclusion, not exclusion. This is a Trial Lawyers College ("TLC") thing. Getting rid of folks from the panel is always tricky, even with a jury consultant, because lawyers are usually looking to "craft" a panel of jurors who are more likely to go their way than the way of their opponent. The problem with that approach is that we are not as "crafty" as we believe. So the TLC approach is different - start instead with your biggest fear in the case and work your way through this with the potential jurors. So we start by admitting we have potential problem areas in the case, and ask the jurors if they are going to be able to remain open to the balance of the case even knowing about the problems. We try to include folks by talking about the warts, and then getting the juror to open up about his or her feelings. Sounds all "touchy-feely" doesn't it? I think it works.  

Let's consider the problem posed by a recent client's admissions that he had hit his girlfriend. Guy hitting girl equals problem. Growing up as men in society, we hear repeatedly a universal truths: "men don't hit girls." Period. Ever. So when we have a client who has done that - struck a woman - you need to talk about it early and often with potential jurors because it goes against this deep seated belief we have as men. We talk it out and see if the jurors can get past it and get to the issue that they must decide.

Of course all this talk about inclusion is in some ways just talk. At the end of the day the lawyer has to decide which jurors represent the biggest obstacle to a fair trial based on their answers and their experience.  With thousands of dollars paid to jury consultants, I have never forgotten the words of the Hat - "experience trumps everything else." He is right about that. Any juror who has had an experience with domestic violence cannot help but have a predisposition one way or the other in a domestic violence case. If you can get them talking they will tell you whether they can serve fairly. 

But back to the question - what did we learn?

First, we learned that the TLC process works to identify the potential trouble spots with jurors. Spence says that if you are willing to show the jurors your weakness (area of concern) they will talk about their own fears. I think that is exactly what happened in both cases. In the manslaughter case I talked about my fear that people might immediately conclude a person with poor vision has no place driving on the road. The jurors opened up about that weakness and talked through their perceptions. From that we made some inroads into building a relationship with the jurors. They understood that they could look to us for the answers in the case, and they could trust us to be honest about the evidence.

The second thing we learned was that having the jury consultant is a huge help but you can get past the benefit of that expertise by taking more preparation time for voir dire.  Given my choices, I would always enlist the aid of a consultant, but even the best consultant cannot pick your jury. The lawyer is ultimately going to have to make the tough call about who should stay and who should go. The consultant I use always asks me what ONE question I would ask if I could only ask one. From that one question we need to be able to expose our concern to the jury and get them talking about how they feel.

Getting ready for trial? Worried about picking that jury? Get a copy of Gerry Spence's book "Win Your Case" and read the chapter on jury selection. That is a great starting point for the TLC method that consistently works for us.

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 With just a few minutes to "share" today I wanted to pass on this advice from a Boise District Court Judge to one of my clients recently. Following the entry of the plea, it takes 4 - 6 weeks for the preparation of the pre-sentence investigator's report.  That is a 4 - 6 week window to make your appearance to the court more relevant at the time of the sentencing.  Judge's advice to my client:  "Get a job!"

Jobs open up possibilities like work release and community service. Jobs make you appear more like "us." You see, here is that key again to any good case - you need to look like one of "us," not one of "them." Us? Them? What do you mean?

You know -"us" - the squares that pay their taxes, follow the law, work for a living and take care of persons and things beyond themselves. We generally believe the world spins beyond us and includes others. That's us!

Them? Well, think crooks and hoods and dealers and grifters. Think folks that you would not trust to spend the night in the home of the person you love the most (someone other than yourself). Think folks who scare the hell out of you when you see them and cause you to cross to the other side of the street. Them!

Maybe life is more complex than this, but I don't think so. After nearly thirty years of selling reasonable doubt for a reasonable price, I believe this is what matters. Perception is reality.

So get a job. Look like you are one of us. Care about someone other than yourself. You might not just avoid hard time, you might get a new life.

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 Alan Ellis is well regarded as "THE" Federal Sentencing guru among those of us who spend time in federal court. An article he co-authored with John Steer and Mark Allenbaugh appears in the American Bar Association's Criminal Justice Magazine entitled At A Loss For Justice, Federal Sentencing For Economic Offenses.  A copy can be obtained from the author here.  If you are a lawyer who ventures into the guidelines arena with white collar clients, read the article.  If you are a person facing fraud charges, read the article!

Generally, our friends in the Ponzi and stock scheme business have brought a little heat to fraud offenses.  The government has modified the guidelines to "equalize" punishment for white collar and non-white collar theft and fraud offenses in light of Bernie Madoff and Bernie Ebbers and the like. The net effect is that white collar crimes are now likely to bring a bigger sentence than before.

In Idaho as in most other federal districts, fraud and other white collar crimes seem to net greater time in confinement than they did in the past. For that reason the preparation of these cases requires some serious consideration of how the "loss" will be calculated for the defendant, but more importantly, consideration of how best to achieve a more complete picture of the defendant so that the sentence achieves the § 3553(a) objectives. That means that we have to look beyond the numbers on the grid and place our client in the best light possible so that the amount of the fraud is less important in the complete picture.

Federal fraud cases are a challenge.  My best advice here is to hire the very best criminal defense attorney  you can afford, and always look for actual experience in this complex area of the law.

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Earlier today I was waiting for that jury to return.  

They're back...

John Tiemann had been through three weeks of trial on two felony charges of vehicular manslaughter.  The State said he was guilty of causing the deaths of Tom and Mary Woychick while driving while under the influence of drugs -  diphenhydramine (Benedryl) and phenytoin (Dilantin). Each of those charges carried 15 years in prison if he was convicted, or a possible 30 years. As an alternative the State argued he was grossly negligent by driving that morning since John knew that he was blind in one eye and had limited peripheral vision in the other. Those charges could have carried 20 years. Of course the State had given John a license to drive knowing he was disabled - and John had driven without any real problem for 20 years.  His medical problems precipitating that blindness were related to the removal of brain tumors in 1988.

The jury found John Tiemann not guilty of the felony counts.

It found that John had been negligent as he drove that morning - and ruled that he was guilty of two misdemeanor counts of vehicular manslaughter. John faces a potential year in jail for each count.

So was that a "win" asked the Idaho Statesman reporter.  

Let's see, the state charges you with two felonies that will subject you to up to 30 years in prison, spends three weeks in trial and argues that you committed two felonies.  I guess you have to decide what constitutes a win. 

I said in trial there could not really be any winner. That is true - the Woychicks were wonderful community leaders. They left behind terrific family members who undoubtedly continue to suffer a tragic loss. Nothing that would have happened in that court room could bring back Tom and Mary Woychick, but I understand the family wanted to feel that justice had been served. I remain terribly sorry for their loss.

John will be sentenced in July, and there remains much to do to prepare for that sentencing date, but for today I am relieved he will not face a potential prison sentence. 

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 After three weeks, I am finally out of trial. Well, out in the sense that I am waiting on a jury verdict. Waiting is a killer for everyone in this situation, and I don't write about cases while they are being tried. So more about that case soon, but this morning I read a little blurb about Boise soldier Andrew Holmes, who is undergoing a pretrial hearing at Joint Base Lewis-McChord, near Tacoma. I spent a little time at then Fort Lewis when I was in the Army ages ago, before austerity brought about its consolidation with McChord.

Last night a friend asked me what the hearing was akin to on the civilian side of the world. The military uses an Article 32 hearing like the grand jury proceeding in state or federal court. The focus of the hearing is to determine if there is probable cause to conclude that a crime was committed by the charged service member. In Holmes' case, additional evidence was ruled admissible by an Army Court, thereby allowing him to re-open his Article 32 hearing. He likely hopes the new evidence will create doubt as to his involvement and it will also lock in the testimony of those appearing.

But the bottom line is probable cause. If the presiding officer finds probable cause, the soldier is headed to trial.

Here's one more thing to think about - the fundamental rule our service members live by in conflict areas is this: we do not intentionally kill noncombatants. Civilians are never targets. That rule gets blurred in war generally and in the middle east perhaps more so because it is so difficult to pick out the bad guys. They don't always wear uniforms. That task is not easy but it is achievable. 

There is much to watch in Holmes' case. What happens at that Joint Base will speak to the difficult decisions our soldiers have to make every day they are at battle.  But don't judge this kid too quickly. Probable cause (if they find it was more likely that a crime occurred) is not the same as proof beyond a reasonable doubt.

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 Let's just say that your are leaving the parking lot of your favorite convenience store.  Slurppy in one hand, cell phone in the other. An unmarked car stands by and hidden from view an officer watches your moves. You get into your car and back out. The unmarked runs interference and a couple of squad cars appear.  

"Do you know why I stopped you," the officer asks.

"No...."

"You've got a broken tail light. Please step out of the car."

You do and the officer asks if you have anything in the car that might be a "problem."  You read that as drugs and remember that there is a little bit of pot hidden in a glove box.  Better to take the hit then extend the contact you reason, so you admit to the pot and the cop retrieves the marijuana and your cell phone.  He taps the text message icon and sees "1lb 4 1000" flash across the screen. Later the cops find that there is a pound of marijuana hidden in the spare tire in your trunk.  Can the text message be used as evidence at trial? The officer says the text translates to "one pound for $1000."

The California Supreme Court says it can in a case (People v. Diaz)  decided in January. The text on the phone read "6 4 80" referring to six ecstasy pills for $80.  Ohio has come to a different conclusion in Ohio v. Smith, decided in 2009. There the State's highest Court held that unless the officer's safety is at stake or there is an emergency, the Fourth Amendment prohibits a warrantless search of a cell phone seized during a lawful arrest.  

The general rule is that officers may search a person incident to arrest. Assuming they get the cell phone lawfully, they may be required to wait for a warrant (Ohio) or may be able to search immediately (California).  The matter is likely headed to the Supreme Court for consideration.

Two things seem clear to me: first, the search of a cell phone has nothing to do with the original exception to the warrant requirement for the search incident to arrest. Officer safety is not the issue when the police are going through your phone. Second, there is so much data on our "smart" phones that a search will really get to potential "private" information.  

What would our Idaho Supreme Court rule? Hard to tell but increasingly it seems that they are writing decisions that more strictly follow the constitutional requirements for search and seizure. 

And if you are a lawyer - think about all the stuff we have on our phones that comes from clients. Email, photos, text messages and documents relating to our cases are all there for the taking. Time to get careful with the way we store information.

Have a phone story? Send me your comment.

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 She's back from the slippery south, and my daughter Courtney Peterson has joined my practice, at least for now. After spending the past couple years as a prosecutor in Idaho and Kentucky, she serves up her first post here.  

Want your prior criminal conviction dismissed or expunged in Idaho? Here’s what you need to know…

Idaho Code § 19-2604 is our state's expungement law and it allows a judge to expung a criminal record after the successful completion of probation.  The statute applies to three types of convictions – (1) sentences that have been imposed but suspended, (2) sentences that have been withheld, and (3) sentences where a judge has retained jurisdiction over a defendant who has completed a “rider.” 

The statue provides that if a defendant has at all times complied with the terms and conditions of probation, a judge may terminate the sentence or set aside the plea of guilty or conviction of the defendant and finally dismiss the case and discharge the defendant.  In the case of a sentence where a rider has been given without a withheld judgment, a judge may amend the judgment to misdemeanor conviction. 

There are two key phrases to keep in mind when reading § 19-2604.  The first is “at all times.”  For purposes of this statute, complying with that language means that a defendant must strictly abide by all the terms and conditions agreed upon when placed on probation.  What happens if your probation officer or the state files charges against you for allegedly violating your probation and then dismisses those charges because you’ve cleaned up your act and have become a model probationer?  You are likely not entitled to that conviction being expunged. The Idaho Supreme Court addressed this idea of strict compliance in State v. Thompson when it stated “The phrase ‘at all times’ means just that.  A defendant who has at any time filed to do what he or she was required to do while on probation in a particular case has not at all times complied with the terms and conditions of his or her probation.”  Just one hiccup on probation could mean that you will not qualify to have your criminal record expunged.

The second key phrase to keep in mind if you want a complete dismissal of your conviction is “may.”  A judge MAY dismiss your conviction if he or she finds that (1) you’ve at all times abided by the terms and conditions of your probation and (2) it is compatible with the public interest.  Is expunging your record compatible with the public interest?  Probably.  Expunging your record will most likely make it easier for you to obtain employment and once again become a productive member of society.  Have you complied completely with your probation?  That’s the question.  

Want to see if your record can be expunged?  Give us a call and we will be happy to talk about your case.

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 I am back from a sentencing today and again it is obvious. What matters when it comes to sentencing is the protection of society. So says virtually every judge you encounter in any courtroom in any sentencing proceeding.

How can you best demonstrate that your conduct does not pose a risk to the community? That's what it usually comes down to as the judge decides your sentence.  Here are a couple suggestions:

1.  Look like you understand the serious nature of the situation.  I heard it again today: "you would not believe how people look when they come into their sentencing proceeding." The judge who said that wasn't just talking about physical appearance, it was bigger than that. In the world of "us and them" you need to look like you are part of the group of folks who follow the law. If you look like you belong in prison, you might just get there. So tone it down and try to fit in. Don't look dangerous!

2.  Be willing to admit that your decisions have put you in this situation.  Don't make excuses for your conduct. Admit that it was wrong and explain what you have learned since the situation that brings you to court. 

3.  Do not claim that "it was all just a big mistake." That never sells. Never. Judges hear about the "big mistake" all the time. You likely made a decision, not a mistake. If you admit that, you have the chance of appearing remorseful. Blame it on some "mistake" and the court will not be swayed to think that you would never repeat the crime. If the judge thinks you will repeat the crime, you are going to get a tougher sentence.

Look - the whole reason for the justice system is to protect society. It's less about fairness than it is about reality. If the court is not convinced that you can be counted on to follow the law, you cannot expect to minimize the consequences of your actions. So pay attention in the courtroom, act like you get it, and try to look more like an observer than a criminal.

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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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There are four things you need to know about the "first appearance" in any felony or misdemeanor criminal case in Idaho. The "first appearance" is is often called an arraignment, although in a felony case no plea is entered by the defendant.  If a defendant is in custody, the first appearance may by done by video.  In Idaho, that first appearance will occur before a magistrate judge, and he or she will start the case process. Here are four things you need to know if you are headed to court for a first appearane:

1. The court is going to give you an outline of the charges against you and a court document that identifies the crimes alleged.  Those charges my change over time; perhaps a felony will be reduced to a misdemeanor, but the key here is to understand generally the context of the charges.

2. The court will want to know whether you need a public defender to be appointed or if you intend to hire an attorney.  The other option is for you to go it alone - pro se.  Don't do that if the charges are more serious than driving too fast. Get a lawyer!  

3.The first appearance really makes a difference with respect to your bond. More serious charges typically result in a higher bond.  This hearing is your first chance to impact on the bond and how much money you will have post before you get out pending trial.  

4. Every chance you get to make an appearance before the court is a chance to make an impression.  Show the judge and the prosecutor that you understand how serious the case is. Be respectful. Have a family presence if possible. If you are not in jail, show up looking like you belong on the streets - in other words - no "public enemy" t-shirt, no skirt so short that it makes everyone uncomfortable, and no dirty jeans.  Show the court you understand this is a serious.

The truth is, every appearance before a court is an opportunity. As my pal John says: you never get a second chance to make a first impression.

Need to know more? Give me call. 

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 Let's say that you have entered a guilty plea to a felony and the case is headed toward a sentencing proceeding. Under Idaho law, the trial court will order a presentence investigation be completed and a report of that investigation will be sent to your criminal defense lawyer, the court, and the prosecutor. What happens if you change your mind? Suppose that you never committed the crime and only entered the plea to protect someone else? Can you withdraw the guilty plea?

Ordinarily, a guilty plea that has been entered is tough to withdraw, but it can happen. Whether you are permitted to do so will depend on the facts surrounding the entry of the plea. You will likely have to show the court a reason for withdrawal of the plea that implicates a right that was compromised by the entry of the plea. Withdrawal of the plea before the sentencing proceeding requires that you show a "just reason." There is no withdrawal as a matter of right, and the state may defeat your withdrawal by showing prejudice to its case.  In simplest of terms, withdrawal is a matter within the discretion of the court. After sentencing it is even more difficult to withdraw the guilty plea and almost never happens.

So if you want to withdraw a guilty plea you must act quickly and you must demonstrate a just reason for doing so, although that reason does not have to establish the denial of a constitutional right. Call an Idaho criminal defense attorney to get a better handle on this tricky area of the law. 

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 A recent Idaho Court of Appeals decision addresses an issue often raised by clients facing a restitution order following conviction or entry of a plea of guilty to a crime. In State v. Blair, a woman who had been convicted of stealing money from her employer objected to the amount of restitution the court determined she owed. She requested a post-sentencing hearing to determine the actual amount, but the court denied her request and entered an order for $5831.43. On appeal she claimed her due process rights had been denied when the court refused to hold another hearing to determine how much money she owed. The Court of Appeals disagreed and the decision of the trial court was affirmed.

This case is instructive because it succinctly identifies the due process right at issue - a fair procedure for determining the amount of money owed - and points to the restitution statute to flesh out the method used by the law to give both sides an opportunity to be heard on the question. Due process really means just that - before you are deprived of your property, the State must afford you an opportunity to be heard in a meaningful way and at a meaningful time. The statute in question permits both sides to present evidence that is relevant to the court's determination of restitution, and does not require the judge to hold another hearing. The "process" due under the statute, to ensure a fair determination, is a hearing where the state and the defendant have the opportunity to be heard on the question. As that is what happened here, the Court's determination was upheld.

If you have a restitution question, take a look at the Blair case. Judge Gutierrez' decision does a nice job of setting out the law and the logical application of the facts to his decision. The case also reminds me of the importance of hammering out the restitution issues with the client before we get to that sentencing hearing.  The State typically sends out copies of the claimed restitution items, and we are usually looking to "make it right" if our client has pleaded guilty or been found guilty because the court will undoubtedly take that fact into account when deciding on the sentence.  Pay the restitution and usually you get a lesser sentence.  

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 I am working on a case in which a private citizen reported to the police that his neighbor had been drinking, got in an argument and left in his car. The tipster reported that the neighbor was drunk and driving. He gave the likely direction of travel and type of car. Cops notified by dispatch saw a car that matched the potential offender's vehicle and stopped it to investigate. Sure enough they smelled the odor of alcohol, recognized the glassy eyed stare of too many beers and concluded that the occupant should submit to field sobriety tests. End result - DUI. 

So is the BAC that was derived from the failed field sobriety tests and the officer's observations admissible at trial? There was no warrant for arrest or to search. They only had an anonymous tip by a neighbor that the occupant had been drinking and was driving to town.

Survey says: probably.

The Fourth Amendment to the US Constitution protects against unreasonable searches and seizures. When you challenge the validity of a vehicle stop or other seizure the burden is on the State to prove the stop was justified. The stop is either reasonable or not depending on the totality of the circumstances. The police must have had a particularized and objective basis for suspecting that the person they stopped was engaged in a crime - like drunk driving. That suspicion may be supplied by an informant's tip or a citizens' report, and it all comes down to the content provided and the reliability of the informant.

In Idaho there is a case (State v. Etherington) that says an anonymous tip alone, without sufficient indicia of knowledge and veracity is insufficient to justify a stop. However, a later case (Wilson v IDOT) held that the opinion of the tipster that the driver was drunk, based on her observations, was enough to validate the stop.

So be careful out there. Do not drink and drive. Call a cab or a friend or use the feet attached to your legs. If you drive and are drunk and get reported and arrested you will spend a lot of time and money trying to get your driving privileges back.

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 I am currently captivated by The Pacific, an HBO mini-series airing on Sunday nights. Even on Easter Sunday I am watching as the men of the 1st Marine Division are moving through the jungle on New Britain. The jungle is everyone's enemy. I cannot remember enough about the history of America’s time in that part of the world and I cannot account for the accuracy of the portrayal, but I am not likely to miss an episode. The bodies of the dead look real and the faces of the survivors betray their simple desire to live another day. But actors and sets aside, I was most struck by the words of one of the actual survivors from the 1st Marine Division:

“Sometimes with life, you just pray and hold on. That’s what we did on Guadalcanal.”

It’s true, isn’t it? There are times in our lives when we can do nothing more. Our supplies are exhausted; we are physically and emotionally drained. The world seems stacked against us and there is no place to hide. There seems to be nothing left except our simple faith and persistence.

I have a friend who was literally drowning in sorrow as he watched his son struggle against himself – unable to shake an addiction to opiates – the kid stole and fought and turned reason upside down. My friend could do nothing more than observe; keeping eyes on what remained of his much-loved son who could not get free of the junk. He watched his boy, and I watched him – not just me – but his friends. We watched and waged war with him.

Another friend told him she would pray.

“Has it come to that?” he asked. “Is that all there is left? Prayer?”

In every criminal case I work on there are those days when parents and brothers and sisters and friends and spouses have those same shell-shocked faces I am watching on HBO. They are in it up to their necks and all they can do is pray and hold on. And I tell them it is OK.

Pray and hold on.

If you're in this situation, and you are wondering if your world will ever return to normal - pray and hold on. Hold on, and hold some more.

Get some help for you and those around you. The right to counsel won't help you - so get some help. Check with your church, call the local social services agency, grab a phonebook and find an Al-Anon meeting. Ask your Rabi, your Priest, your Pastor, your best friend and anyone else who you can trust to get you through this.

That’s right – you. In every criminal case there are family and friends dying a million times as the case unfolds. Sappy? Maybe. But I have watched these real life dramas play out in big and little cases this year and each of the past 28 years I have practiced.

If you are in one of these, you already know about pain and guilt and the "why didn't I see this coming...." 

Pray and hold on. And get yourself some help.

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 A recent Idaho Court of Appeals decision follows recent United States Supreme Court precedent, allowing a search of a car incident to arrest, even if the defendant is in custody at the time of the search, and unable to reach into the vehicle at the time of the search. The Idaho case is State v. Cantrell, decided by Judge Gratton and joined by Judges Lansing and Gutierrez. The facts in the case are fairly simple: driver of a car is stopped for going the wrong way down a one-way street in Boise. As my pal Merris says - "it was dark, he was drunk, and he was driving downtown." Probable cause to stop? Sure. Officers approach and the driver admits he was drinking, has the "glassy" eyes (aren't all of our eyes glassy) that happen to also be bloodshot, and the "thick" speech. He says he has been drinking and he "knows where this is going." Failed gaze nystagmus added to the equation equals arrest for driving while intoxicated (DUI). Cuffed and placed into the cruiser, the officers call for a tow and proceed with a search incident to arrest. Under the seat they find some marijuana and read the defendant his rights. Does he remain silent? 

NOT ON YOUR LIFE - but that is the usual way of doing business. He admits that the pot is his and a bong will be found in the trunk. The officers find the bong, and a duffel bag loaded with mary-jane. He is charged with trafficking - for which there are mandatory minimum sentences in Idaho. 

The district court denied the motion to suppress the evidence because it was either incident to arrest or because of the inevitable discovery exception. On appeal the question is whether that ruling stands in view of the United States Supreme Court decision in Arizona v. Gant, where the Court held that the automobile exception to the warrant requirement authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, OR when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‟ 

The Idaho Court of Appeals finds that the search of Cantrell's vehicle is permitted here because it was reasonable for officers to believe that evidence of the DUI might be found in the car. The search is good, conviction stands. 

So what do we learn from this case? 

First - when you drink, do not drive. It really is that simple; isn't it? If Cantrell had not been drinking and driving the wrong way down a one-way street, he and his pot would not have been found that night.

Second - stop trafficking in marijuana. I know it is legal in California, but this is Idaho. Stop already. Prison is not that interesting as you will discover if you are convicted of trafficking. Mandatory sentences mean mandatory time in the can.

Third - when they say you don't have to talk; don't. Silence is a good thing, especially if you have been violating the law. The police do not need your help to convict you. In fairness, they likely would have gotten to the same place even if Cantrell had remained silent. But that just takes us back to points one and two.

Finally - we learn that although a warrantless search of your car is per-se unreasonable, and arguably a constitutional violation if you could reach into the car at the time it is searched, or if the police believe you may have left evidence of your crimes in that rig, they get to search without a warrant. 

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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 a really nice woman in my office today who wanted to hire me to be her lawyer in a felony case. Her biggest block was, well - money. She said she had been "hoping to avoid all those hearings" and thereby make it possible to hire me. Fewer hearings means less time spent on the case and less cost. At least that was her perception, and to some extent she was right. More work costs more. That simply does not change the reality of the court appearances in a felony case.

A person charged with a felony in an Idaho court will make a first appearance before a magistrate judge, generally after having been booked into jail on the charge. That first appearance provides the opportunity for the court to advise you of your rights, appoint counsel if needed and set or reconsider a bond that has already been set. The court will then set a date for a preliminary hearing - usually within 21 days. That preliminary hearing is a chance to see the evidence relied upon by the state to establish probable cause. If the State uses a grand jury and obtains an indictment, the right to have a magistrate judge consider the issue of probable cause goes away. 

If the magistrate finds probable cause to believe you have committed a felony offense or if you have been indicted, your next appearance is before the district court judge assigned to your case for an arraignment. Usually your lawyer will enter a plea of not guilty, and the judge will set dates for discovery, filing and hearing motions, and perhaps a pretrial conference. 

And of course there is the main event - the trial. The court will set that date too at the arraignment. Generally your trial date will be 90 to 180 days out from arraignment, depending on the complexity of the case and the trial court's schedule. If you need more time the court may grant a motion to extend the time to prepare for trial.

So there you have it: Felony Court Appearances 101. But the preparation of a criminal case is so much more than just showing up for trial. There are investigative reports to be read and analyzed and legal motions to consider. And of course there is the story. 

The story is everything. Check out prior posts on the importance of telling your story.

More time does cost more money - but more time means "more prepared." More prepared means more likely to get it done at trial. And the trial is a war. I mean that. War. Battle. Fights. Blood and guts and throbbing headaches for you and your lawyers. Even if you do it all right you may still lose. I know it doesn't happen on TV but in real life it does - we lose cases we think we cannot lose and we win cases we think we are likely to lose. Often time spent on the case is the difference.

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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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 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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 In another one of those confusing 9th Circuit fraud decisions - the Court of Appeals has upheld the convictions and sentences of three men who summoned the likes of Charles Ponzi and swindled 1700 investors out of $40 million. In US v. Treadwell the Court upheld an instruction  that “intent to defraud is an intent to deceive or cheat,” and that “a defendant’s belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime.”

The Court goes on to draw an analogy to embezzlement. It is not a defense to embezzling money from your employer that you intended on returning the money to him someday - even if you honestly believed you could, with interest! That makes sense to me because fraud is simply theft - if you get the money by lying it is not a defense that you may someday give the money back, or the investor may someday get the investment back. Bernie Madoff's investors got money back, from other investor money!

And if someone was to sweet talk my wife into "giving" them my MacBook Air on the premise that we would get two new ones back in a few months, I wouldn't care whether he or she had the good faith belief that they could get me a 100% return on my bride's "investment." My computer would be gone - just like the investor's $40 million. 

Look at the following language - it pulls together the key stuff here:

"According to the federal wire fraud statute, 18 U.S.C. § 1343, any person who “having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be trans- mitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice,” is guilty of wire fraud. Conviction under § 1343 means a defendant must have intended “to defraud” his victim. See United States v. Oren, 893 F.2d 1057, 1061 (9th Cir. 1990). “To defraud” under § 1343 encompasses “any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises.” Carpenter v. United States, 484 U.S. 19, 27 (1987); see also United States v. Ciccone, 219 F.3d 1078, 1082 (9th Cir. 2000) (“[T]he offense’s specific intent element . . . require[s] proof of intent to deprive the victim of money or property.”). It means to “wrong[ ] one in his property rights by dishonest methods or schemes, and usually signif[ies] the deprivation of something of value by trick, deceit, chicane or overreaching.” Carpenter, 484 U.S. at 27 (internal quotation marks omitted)"

It's the scheme that is the key - if you get the money by lying and scheming the law will be at your door. Or maybe - it will be some lawyer in a nice suit looking to collect back that "investor" money from you in a civil suit. Either way, this case is fair warning that the scheme imposes liability - both civil and criminal. 

Have a question about an investment "opportunity" that seems too good to be true? Get some advice before you give away the farm.

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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 by the Idaho Court of Appeals, it may be that evidence of a child's prior exposure to sexual behavior is admissible to answer the implicit question in every sexual prosecution: "how would a ten year old kid know about that sexual behavior?" If you have to defend against such charges, evidence that the child knew from a source other than the alleged sexual act may be proof that the child has fabricated the allegations.  Still, whether the evidence will actually be admitted will depend upon the facts specific to the case.

In Idaho vs Molen, the Petitioner complained that the trial court had twice rejected his offer of evidence that the purported victim had been exposed to sexual behavior by her mother, thus making it more likely that she made up the story and had its building blocks from that prior exposure. To be clear, Molen's defense at trial rested on his assertion that the victim "SZ" made it all up, perhaps at her mother's insistence. The Court stated:

"Molen's offer of proof does not demonstrate that S.Z. had previously observed such conditions or behavior. The offer of proof indicated the evidence would show that S.Z.‟s mother exposed S.Z. to “a constant, graphic, sexually charged lifestyle . . ., including openly having sex with multiple partners with [S.Z.] in the home, openly discussing sex toys and pornography in front of [S.Z.], and openly disrobing in front of other family members in the presence of [S.Z.]” These assertions are too vague and general to establish an alternate source of knowledge from which S.Z. could have fabricated her description of Molen‟s acts.

So Molen's evidence, according to the Court, was not relevant - because it was not specific enough to meet the prosecution's allegations. I suppose this means that when a child alleges intercourse, evidence of prior exposure to intercourse would be admissible but not evidence of some other sexual act. 

But the rules provide that any evidence making the existence or nonexistence of a fact in issue is relevant evidence. Isn't it relevant evidence if it answers the underlying "how would she know about that" question? Apparently not - according to the Court of Appeals.  

There is one other nugget to mine in this decision - the Court held that the prosecutor erred by commenting on the Defendant's invocation of his right to remain silent when she asked him if he had waited to tell his story until after he had heard all the witnesses testimony.  Error? Yes. Result in reversal? No. The error was deemed to be harmless so the Petitioner did not get a new trial.

Whether you agree or disagree, this most recent decision is important to any defendant facing an allegation of sexual battery or lewd acts. These charges are so difficult to defend against that your lawyer needs to read this case - and soon!  Call your lawyer and tell him or her about this decision. 

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 If you are charged in a criminal case, you have a story. You know intuitively that you have to answer that "what happened" question, if only to yourself, your family and your lawyer. You understand that your freedom depends on the answer and ultimately, your story. And you likely understand that you should have a good lawyer to help you communicate the facts that you hope will keep you free. Believe me, you will not likely do it by yourself. That is the situation whether your case is civil (only money involved) or criminal.

Your story has to be refined, and a third person - your lawyer - is most likely equipped to do this. You need to define its core message and fight against the extraneous. Most people who call me about their situation have a core message, but it is lost in the detail they think is important. It goes something like this: 

"They arrested my son, but didn't read him his rights. Then they took him to jail because he wouldn't tell them who stole the car and then they put him in solitary confinement and won't let him out until he tells them the names of the other guys who really did this. He was not the driver..."

A good lawyer will help you get through the extraneous and direct you to the core message - whatever that might be. Maybe the core (facts that make up the defense) is as simple as "I didn't steal the car." Maybe it is more. In any case, an experienced criminal defense lawyer should be able to help you tell your story. Now you have to trust that lawyer to get to the stuff that matters.

And how do we do that? It's not an easy thing to do sometimes. I am in a fraud case right now (a civil case) where the other lawyer submitted an eleven page brief that really got to the core. Mine was thirty pages and it wandered. So I kept refining the message until I was happier with the work, but in the end, I was amazed that anyone could cut through the clutter like the lawyer who was opposing our position.

How do we cut through that clutter and get to the core?

Write. Re-write. Refine. Cut. Re-write and do it all over again. 

I think the real answer is that we help you cut to the core by learning your story, and then working on how we tell it to the jury. So tell your lawyer your story, and let him or her cut it apart.

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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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Here's how the New York Times announced it:

"Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four other men accused in the plot will be prosecuted in federal court in New York City, a federal law enforcement official said early on Friday."

And of course the talking heads will be weighing in on how this course of action will impact on other Gitmo detainees.  Four others are reportedly also headed to NY to face trial, but some of those prosecutions may still occur before military commissions.  The biggest concern for prosecutors has reportedly been the fact that KSM has been water-boarded some 170 times.  Evidence (confessions) that is the result of torture is generally not admitted in criminal trials, and any defense lawyer tasked with defending the man accused of killing 3000 people will have to make the government meet its burdens under the Constitution.  Still, a show trial in NY seems right to me.  The towers came down in NY.  New Yorkers lived with the terror.  Ground Zero remains a work in progress. The federal courts there are used to handling big cases and providing great security.  And this is a country dedicated to the proposition that we try these cases in public, before the people of this country.  And did I mention the 3000 or so who died that day in NY?  Their children, spouses and families deserve the chance to see the system at work.  That won't make the case easy for the United States - quite the contrary.  That collision of personal rights and public anger will lead to hours of interesting "education" for Americans and others as they watch the court system in action. 

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 In United States vs Hickey, the 9th Circuit Court of Appeals affirms the conviction of another real estate developer who made big promises to investors but failed to deliver.  Defendants Hickey and Tang induced over 700 investors to invest over $20 million in two real estate developments.  The plan was straight forward enough - you give me money, we buy land and develop it for resale at a profit. You profit too - just trust us. As I mentioned, investors dumped money into the "development" as they often do, even in Idaho. As the Ninth notes: 

As it turned out, however, the investors were duped by false representations regarding land title, guarantees, and securitization of the funds. Forensic accounting also showed that Hickey and Tang appropriated money from the funds for personal use.

What a shock!  Real estate developers who made false representations about owning the land, "guaranteed" returns to investors and security of the investments? And then they used some of that $20 million for themselves? The scheme ultimately turned into the classic Ponzi scheme, leaving later investors empty.  OK - enough of my shock and horror. 

The interesting issue for me was the Court's holdings concerning the use of an expert witness to testify that all of this was reasonable and the standard course of such proceedings.  He wanted to go further and testify that if Defendants had not been stopped, their efforts would have produced a return for investors. To that the Court said "NO."  Here is the part that I do so love:

To begin, loss to investors is not an element of either mail fraud or securities fraud, nor is an intent to cause loss. See United States v. Utz, 886 F.2d 1148, 1151 (9th Cir. 1989) (for mail fraud, “[i]t is enough . . . that the government charge and the jury find either that the victim was actu- ally deprived of money or property or that the defendant intended to defraud the victim of same.”) (emphasis in original); United States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986) (actual loss is not an element of securities fraud). Although Hickey is entitled to advance the claim that he did not intend to defraud the victims, his argument misunderstands the relevant intent—“[w]hile an honest, good-faith belief in the truth of the misrepresentations may negate intent to defraud, a good-faith belief that the victim will be repaid and will sustain no loss is no defense at all.” Benny, 786 F.2d at 1417. In other words, even if Hickey genuinely believed his investment scheme would be profitable and would result in gains for his investors, he would still be guilty of securities fraud and mail fraud if he knowingly lied to investors about the risks associated with his plan.

What this means to you as an investor is simple - it is not a defense that the defendant thought ultimately his lies to others would produce profits for you and others.  It's the lies, half-truths and omissions that make it fraud. That someone actually lost money is relevant, not the half-hearted and misguided attempt to prove the defendants "might" have made the money they promised as guaranteed returns.  

That this is a criminal case changes nothing - the basic elements of fraud (civil or criminal, securities or otherwise) are essentially the same.  This is a very important case for a plaintiff or a defendant in a civil or criminal case. These situations almost always ultimately involve both civil and criminal liability. 

So if you think you have been defrauded, or if someone (like a government agency or prosecutor) says that he or she is charging you with fraud, get some good legal help and get it quick.  Last week a guy called me to talk about a federal indictment which he claimed was "no big deal - I have been talking to the feds about this for the past year."  Another excellent idea - after you commit the fraud, spend a lot of time with the feds trying to talk your way out of it. 

No Mr. Defendant, this is no big deal alright - if you like tan jumpsuits, Club Fed accommodations, dark dank holes and lots of time to read the classics while carefully watching your cellie's next moves!  No big deal at all - number 7651991!

No big deal either "Ms. Moneybags are now empty." Not if you don't mind giving back everything you own and want to spend the rest of your life working to pay off that non-dischargable debt for a couple cool million dollars.

No big deal at all.

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 First the disclosure - I have known John Tiemann for twenty years and when he was involved in an automobile accident several weeks ago he called me.  I represent him.  If he is ever charged with a crime as a result of the accident, I will be there beside him as his lawyer.  The accident happened on August 19th, and two equally wonderful people were killed.  John was driving his car to work at the same time James and Mary Woychick were on their way home from Mass.  They were well known and loved by the community and their deaths were tragic.  While I did not know them personally, I had seen Jim at the YMCA as I tried to learn to swim.  He slid through the water without effort.

So when I opened the Idaho Statesman this Sunday to read the report that John had tested positive for alcohol and drugs, I knew there had to be something wrong.  John had assured me that he had nothing to drink that morning, and the idea that this gentle man was under the influence of drugs was equally ridiculous.  I knew that if he had failed the field sobriety tests or the breathalyzer he would have been arrested on the scene.  He did not fail either and he was not arrested.  

So I wondered about the basis for the claim by the Statesman - their answer - the Idaho Vehicle Collision Report.  

The problem is the Report does NOT say John was positive for either alcohol or drugs.  It says that he was given a blood and urine test and that the results of NEITHER is known.  In other words - the story is false. The Report does NOT say that John Tiemann tested positive for anything. The reporter, Cathy Sewell, did not apparently understand the Report.  When it said "-U indicates Unknown" she apparently thought that meant "-U indicates he was drunk and on drugs!"

In fairness to her, the report contains a "block" for "Alcohol / Drug Involvement" that indicated both blood and urine tests had been done.  The results are not back from the lab - but I am convinced that John was not operating the car under the influence of either drugs or alcohol.

I have asked the Statesman editors to correct the story.  Some of John's closest supporters had doubts.  Had the Statesman simply waited for the results, the truth would have been known and not misreported.  They say they want to make it right.  I hope they do. I have simply asked them to do what is right - admit you got it wrong. 

It must have been even more terrible to be in the Woychicks' family, which has endured so much with the loss of James and Mary, to read that story on Sunday that the driver had both drugs and alcohol in his system at the time of the accident. Someone last week told me that the Woychicks' children were trying to not hate the man who collided with their parents.  

The Statesman undoubtedly made that worse without any reason to do so. 

Like I said, I have known John Tiemann for twenty years. He says the lab results will prove he had neither drugs nor alcohol influencing his driving that terrible morning.  Even if I did not believe him I would wait to see the test results.  The Statesman should have done the same.  But I do believe him, and I want to believe the Statesman will correct the story.  

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 In an article appearing online in the Statesman it appears that DBSI president Douglas Swenson will have to answer questions under oath in the DBSI Bankruptcy case now pending.  Here is the classic dilemma - answer the questions and face the use of your testimony in an all but certain criminal case, or refuse to answer and invoke the constitutional protections afforded against self incrimination and watch the civil case wilt on the vine.  The law is difficult in such cases because DBSI has sought PROTECTION against its investors through the use of the bankruptcy courts. But should it lose the protections afforded there because its president wants to shield himself personally from a potential criminal case?

You can smell the blood in the water here - just look at some of the comments added to the Statesman story.  Many in the community have tried and condemned DBSI and its officers without having any real knowledge of what went on in the business.  And of course DBSI has added to the problem by appearing to run from its losses without giving a full accounting of what happened, under oath.

If DBSI wants the protection of the bankruptcy law, it must likely play according to the rules, but can the judge FORCE Swenson to testify under oath? I doubt it.  The remedy here may be that the bankruptcy petition is dismissed or the case converted to a liquidation, thereby depriving the company of the protection of the courts because its president cannot or will not answer the questions.

Learning point - if it looks like you are about to be charged with a crime, you only want to tell your story once. If Swenson is indicted his statements in the bankruptcy would certainly be used against him at a criminal proceeding. So why should he waive his 5th amendment rights now? 

Second learning point - when in trouble, get a good lawyer.  Swenson has Angelo Calfo - great lawyer and a great choice in this case.  We shall watch this one as it progresses. There is still that "ponzi scheme" claim underlying the entire DBSI mess.  Millions of investor dollars are gone and in today's climate that can only lead to more scrutiny.

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 If you live in the Boise - Nampa - Caldwell, Idaho area you cannot have escaped the most recent news story on another apparent homicide by a fourteen year old Caldwell Middle School student. That's right friends - 14. As in "how many kids can you stuff in a VW Bug?"  Fourteen - if they are little Middle School kids.  As in two years older than 12.  And when the reports first surfaced in the local press, it was just another "bad kid gone horribly wrong" tale, this killing compared to other murder by adolescent kid accounts that have played out all over the land over in recent years. You know the type - sad, dark killer takes life of sainted parent. Those stories are truly tragic - but this is not that story. This is the other type of tragic - 

Zachary Neagle is charged with killing his dad - who "allegedly" had sexually molested Zachary and his sister.  

Check out today's coverage of the case, including this story describing the circumstances this kid was living through - sexual abuse by dad.  Here's the kicker:

"A close relative of the victim told investigators he suspected Jason Neagle sexually abused Zachary and that he had seen Neagle hit his son, (Investigator) Crawford said."

What kind of relative stands by and lets an adult sexually and physically abuse his kids? What kind of father molests his kids with apparent impunity?

While we are at it - what kind of prosecutor charges first degree murder for this kind of thing? John Bujak has "taken the death penalty off the table." Wonderful - at least this 5 foot 4 inch kid will not have to face the most extreme punishment available under the law. Bujak should do more - he should drop the charges based on the work of his investigators who appear to have the explanation - the kid was trying to protect himself and his sister. This kid needs help not a life sentence.

There is much interest in this case as the 85 comments to the story illustrate. Many (if not most) support the kid's actions to protect himself and his sister from the abuse. Zachary Neagle is the real victim. He needed the community's help before and he needs it now.

There are cases lawyers just need to take - causes so just they beg for an advocate. This seems like that type of case.

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 I am working on my response to a motion to dismiss a civil case under Rule 12(c), which permits a judgment on the pleadings to be granted when, taking all the allegations as true, the moving party is entitled to judgment as a matter of law.  This is a civil case, and the practice in civil cases is different than in criminal cases.  In criminal cases I am often asked why the judge doesn't just dismiss the case. Many defendants are simply certain that the judge will read something and understand immediately that they have been unfairly charged. After that revelation it is only a short jump to certain dismissal. OK - here's the bad news - it doesn't work that way.

If you have been charged in a criminal case a court has already found that there is probable cause to believe you committed a crime.  In a felony case, a grand jury has found probable cause or a magistrate judge did at the preliminary hearing.  So it is pretty unlikely that the case will simply be thrown out before trial, but it actually could happen.  Rule 48 of the Idaho Criminal Rules permits a judge to dismiss a case in the interests of justice (which really does mean any reason) either on motion by the defendant or on his own motion. If the case is dismissed by the judge it may be re-filed if it is a felony, but not so if a misdemeanor.  If it gets dismissed as a misdemeanor, it is gone for good.

But does this happen? Not often. Judges presume that the prosecutor knows more about the case than he or she does, and that is usually the case.  So the Court is more likely to let the prosecutor try to prove the case. The best hope for a "dismissal" is the motion for Judgment of Acquittal based on Criminal Rule 28.  A judge can decide to dismiss after hearing the evidence and concluding that no reasonable trier of fact could conclude there is proof of guilt.  Last summer I had this happen twice - two different judges - acquitted my clients in criminal cases, one a felony and the other a misdemeanor.  If you go to trial you want to make certain that your criminal defense lawyer moves the court to order your acquittal at the conclusion of the State's case.  Just look at your lawyer and say "Rule 28?"  If he or she doesn't do it ask them why!

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It is early on a Sunday morning and I am in my office working.  Sometimes this happens - I wake up and after fifteen or twenty minutes I know that I am not going back to sleep, so off I go to do a little work. Today I am listening to a tape recorded "interview" by a detective.  The suspect is charged with a sex crime.  The officer has been nice and comforting along the way - taking his time to eke information out of the defendant - and in the end the defendant has sealed his fate.  He has told the officer that he fell in love with a minor, and that of course led to sex, and that will lead ultimately to a criminal case.  Sex crimes are in the news here lately, as a prominent local business man is currently on trial for having a sex party with two minors.  I am not going to talk about his case - I did that under oath as a witness last week - but the question of just when it is permitted to have sex with a minor is frequently one I deal with.  The answer is - drum roll please - NEVER!  That's right friends and neighbors, not ever.

The law in Idaho FORBIDS a minor  from consenting to sexual contact.  Simply stated: a minor (someone under eighteen) cannot legally consent to any sexual contact.  Idaho Code § 18-1508 prohibits "lewd conduct" with a minor under 16 years of  age.  Penalty - LIFE.  And truly they mean it.  You may not go to prison for life (you might), but your life will forever be changed if convicted.  In addition to prison, sex offender treatment, victim restitution and lawyers fees, there is also a requirement that you REGISTER as a sex offender under Idaho Code § 18-8301 et. seq.  If the victim of the crime is 16 or 17, it is still a crime if you (as the defendant) are more than five (5) years older than the victim (Idaho Code § 18-1508A), and the maximum term of imprisonment is twenty-five (25) years.

So if you are being investigated for any sex crime remember that the investigators are playing for keeps.  Here are my top three rules if you are under investigation for any crime:

1.  Guilty or innocent you cannot talk your way out of the investigation, so shut up!  Remember that little "you have the right to remain silent" talk BEFORE the nice officer gets you the coffee.  Sure, you may be guilty and there may be a time to confess, but don't do so at the station to the officer who says he just wants to "get your side" so it can be included in his report to the prosecutor.  WAIT. Breathe deeply and tell him you do not want to make a statement.  There will be plenty of time to spill your guts later.

2.  The prosecutor is not your friend.  I know prosecutors, and like many of them. They are almost always believers in what they are doing, sometimes to a fault. The same is true of most defense lawyers.  Heck, my daughter is a prosecutor.  But as one of my clients says, prosecutors are just cops with nicer suits.  They are there as the state's lawyer in a case in which your liberty is very much at risk. Do not expect a break from the prosecutors.  They may decide that you are a nice person but that will not be enough to  convince them to "overlook" your indiscretion and dismiss the case.

3.  You know that money you saved for a rainy day? Get it out and buy the best lawyer you can afford because "it's pouring" outside.  Again this week I had the call from a young woman who is looking for an appellate lawyer because her husband is on his way to the big house.  Who was his lawyer, I ask. He had a public defender, she says. "We decided to wait and see how the trial went before spending our own money." Bad call. That public defender may have been great, but he also may have had 60 - 80 cases he was managing.  Money buys time - which is why I am here at 6:00 am on a Sunday morning.  Time is the difference between winning and losing, sometimes. Sometimes there is nothing the best lawyers can do to get you acquitted.  For example - if you are guilty of doing whatever they are investigating. But your money can buy that lawyer's time and effort to review the documents, learn the case, get to know you and your life and convey "you" to a judge or jury.  I may not be the right lawyer for your case, but somewhere there is a lawyer who will work for you - maybe just to lessen the time you face - hire the best lawyer you can afford.

There you have it - back in the saddle again and now it's time to get back to work.  Next time - what do we do about the confession?

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I love to check out the "Case o the Week" over at the 9th Circuit Blog to see just what little gem of a case makes the grade - and this week the Court did not let me down. At issue - what does possession mean? In United States v. Nevils, __ F.3d __, 2008 WL 4937030 (9th Cir. Nov. 20, 2008), the Court of Appeals had to decide whether the Appellant's conviction for possession of a gun would stand in the face of his claim that he had not knowingly possessed the firearms. Sounds like the usual stuff - cops chase some other guy into an apartment complex in a high crime area. They see Nevils through an open door, sleeping on a couch. Leaning against his leg - a gun. In his lap - another gun. Also present and unaccounted for - baggies of dope and ecstasy. Only weeks before Nevils had unfortunately been arrested for a parole violation, associating with known gang members. Hey, these things happen! Once Mr. Nevils awoke (surrounded by the cops), he protested his innocence: “I don’t believe this sh.. Those m....rf....rs left me sleeping and didn’t wake me.” At his trial, Nevils produced evidence (including a witness other than himself) that he had gone to a party, got so drunk he passed out, and his "friends" had taken him home and left him on a couch to sleep it off.  The witness testified that the drugs and guns were NOT there when they left Nevils, passed out in the apartment. Implication? The SODI defense (Some Other Dude Did It) - which the jury rejected in favor of a finding of guilt. Not so fast Tonto - that possession of the gun has to be knowing and voluntary. This is no big surprise really, but put this case in context. A trial judge gets reversed for not granting that Rule 29 motion. (For a description of one of my cases last summer in which a judge GRANTED a Rule 29 motion for judgment of acquittal go here).  The decision puts it this way:

“On this record, we hold that the Government failed to produce evidence that would have allowed a rational jury to infer knowing possession beyond a reasonable doubt. It may be natural to assume that somebody must have possessed the weapons because they were there, but the Government did not offer sufficient evidence to prove that the ‘somebody’ was Nevils.”

Think about this decision in the context of other cases charging possession - like possession of drugs, or stolen property.  The case reminds us that innocent possession is not enough, the proof that is required for conviction goes beyond allowing for the probability that you knew, there must be proof that you knew what you possessed. As our friends at the 9th Circuit Blog remind us:

The case is a must-read for “knowing” possession drug and gun cases. The decision rejects “mere presence” and Nevils’ “general character and history as a gang member” as sufficient evidence for the “knowing” mental state (despite the fact the gun was in his lap!)

So go check it out here! Read it and weep prosecutors - we shall not go quietly into that dark night.

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 Tis the season for increased traffic patrols - and DUI arrests in Boise, Idaho.  The Statesman reports that between Friday night and Sunday afternoon forty-nine persons were arrested and charged with driving under the influence of alcohol or drugs. Suppose for a minute that you are one of those forty-nine. Any criminal charge is expensive and the outcome important enough to give serious consideration. Pick the wrong lawyer and you become a statistic. Miss an opportunity to defend yourself and you lose - your case and the money that such a conviction costs in fines, time lost to court hearings and jail, alcohol education classes, alcohol evaluation fees, drivers license reinstatement fees, court costs (those judges have got to be able to retire and you get to pay for this with your court cost check) and that lost job opportunity. Need a ride to work? Hire a cab or have a friend drive you, even if you are innocent.  That's right - innocent. The myth is that everybody charged with a crime (whether DUI or racketeering) is guilty, regardless of the presumption of innocence.  So as you think about who you will hire to keep you free - let me give you FIVE QUICK QUESTIONS TO ASK EVERY  LAWYER YOU THINK YOU MAY HIRE:

FIRST - how many years have you been in practice.  New lawyers know almost nothing about practicing law (sorry, but its true). If it was your MOM who was charged with a crime, would you want an inexperienced lawyer who just passed the bar to handle the case? No way!  There is no substitute for experience.

SECOND - how many criminal trials have you done and with what results?  Your case may not go to trial, but ask this question.  Has the lawyer WON a criminal trial this year?  Ever?  And by WON, I mean heard those two magic words: "NOT GUILTY!"  If the lawyer has not won a case this year - ask for an explanation. And ask the lawyer if HE OR SHE was the responsible or lead lawyer on the case.  Some lawyers have never been the lead counsel in a case and WON it on their own, they have only done so with someone else at the helm. You only want the lawyer who has actually stood up and argued the case as THE lawyer, not the second. If the lawyer you are talking to has never personally had an acquittal as the lead lawyer - MOVE ALONG TO THE NEXT LAWYER.

THIRD - who in your office will actually handle my case? Your freedom is too valuable to trust your case to some rookie associate who has not been there before. Can that young associate help and make your case more likely to be a winner? ABSOLUTELY! Young lawyers have brains and recent case information that will help to build a winning strategy, but that young, inexperienced lawyer needs time in court to become a winner. So if the lawyer you are hiring is not going to be personally responsible - MOVE ALONG!

FOURTH - how will you keep me informed about my case? You are buying advice and you are paying for someone to keep you informed about how the case is going and where it is going, so how will you get information? I have seen lawyers who were "not in" more than they were, at least when it came to talking to them. Get a lawyer who is going to take your calls and be around to talk when you need to talk. In our office we use Basecamp to keep our clients up to date - actually building a private website for the client where his or her case documents and calendar are always available. Just how will that lawyer get information to you?

FIFTH - how much will this really cost? Let me be honest here, a simple DUI case might cost you $1000 or $10,000 depending on how the case is handled. Will you be charged a "flat fee" covering all the work or will you pay by the hour? There are options that you should decide. Deciding how the case will be handled will also help you decide how much it will cost. Having money to defend a criminal case is like that "Rainy Day" fund the State has been building up, "just in case."  If you have been charged with a crime, follow this one rule above all others: HIRE THE BEST LAWYER YOU CAN AFFORD. Period. Your life and liberty depend on that decision.

Hope this helps - now get out there and find someone who can fight for you. Every criminal case is a war, every motion a battle.

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I was just looking at Virginia Attorney Bob Battle's website, and his advice on choosing a lawyer to represent you if you are charged with driving under the influence.  The advice makes sense whether you are headed to court in the great South or the Northwest.  Survey says:  choose wisely!  As a client in a criminal case in Idaho, you want to hire an experienced lawyer.  Some Boise lawyers send out letters everyday to anyone charged with a crime.  They get that list of potential clients at the courthouse and then send off a FORM letter that may scare you into jumping into their caseload.  Don't jump. Think! Why are those lawyers "fishing" for clients anyway?  Successful and experienced lawyers (criminal and otherwise) get clients from their reputations and by referral.  Just how many TRIALS have they had this year?  What were the results?  And will they be handling the case or passing it off to an associate?  Look, it's your case, and your life.  Why would you entrust it to any lawyer who could not give you the answers you deserve?  Here's our pitch:  Hire me for the experience and you get just that; me and twenty-seven years in the courtroom. 

So what kind of cases have I handled?  In the past five years the cases have included murder, manslaughter, racketeering, drug possession and trafficking, fraud, medicaid fraud, illegal possession of guns and ammunition, sex offenses, DUI, domestic battery, assault, aggravated assault, and other misdemeanors.  Civil case?  Wrongful death, ski injuries, defective design of Ford Expedition, personal injury automobile accident, truck accidents, defamation, malpractice, breach of contract, fraud, and defective products.  Need a lawyer?  Like Bob Battle says, choose wisely.   

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