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

 The Idaho Supreme Court decided an interesting case in which the Boy Scouts of America sought to dismiss a case brought by sex abuse victims who had not proceeded with their cases until they were adults. Generally, Idaho civil law contains a statute of limitations that ends liability for civil cases after some number of years. For example - if you are in an automobile accident and have a claim for negligence, the law says that you must sue within two years of the date of the injury or your claim goes away, forever. The injury may remain but your ability to collect from the persons who hurt you is eliminated. So you always have to make sure that you get that case filed within the statute of limitations.

In Morgan v. Boy Scouts of America, district court judge Michael McLaughlin ruled that the statute of limitations did not bar a civil action brought by three former Boy Scouts for sexual abuse they contend occurred in 1979 and 1982. Plaintiffs filed their cases in 2007, relying on title 6, chapter 17 of the Idaho Code, which provides a statutory cause of action for sex abuse victims. In July of 2007 an amendment to the law permitted the filing of a case “within five (5) years of the time the child discovers or reasonably should have discovered the act, abuse or exploitation and its causal relationship to an injury or condition suffered by the child, which ever occurs later.” I.C. § 6-1704. Based on the "discovery" part of the statute, child sex abuse victims in Idaho have a far greater time in which to bring their case for damages they incurred as a result of the abuse. 

Rather than just changing the statute of limitations, the Idaho Supreme Court recognized that the provisions of § 6-1701 and its amendments was the creation of a new cause of action, with greater rights than provided at common law. The legislature has created a civil cause of action for crime victims, but that statute is not applied retroactively.

"Because the scope of liability imposed under Idaho Code title 6, chapter 17 substantially differs from that available under the common law, the statutory scheme cannot be retroactively applied. “A statute will not be given a retroactive construction by which it will impose liabilities not existing at the time of its passage.” Ford v. City of Caldwell, 79 Idaho 499, 509, 321 P.2d 589, 594 (1958). While procedural and remedial statutes can be given retroactive effect, a statute that creates a right to damages where none previously existed cannot be considered to be remedial. State ex rel. Wasden v. Daicel Chem. Indus., 141 Idaho 102, 106, 106 P.3d 428, 432 (2005). Damages and punishments are substantive law. Id. Consequently, regardless of when the Does’ cause of action would have accrued under the amended statutory scheme, the statute cannot be applied to the conduct that gave rise to the cause of action because it occurred between 1979 and 1983, at least six years before the statute was enacted. Thus, the BSA cannot be held accountable for behavior that was not actionable at the time it occurred."

Bottom line - the case goes back to the district court, which had refused to dismiss the case. And the abuse victims are left without the one thing the legislature intended to create, a right to seek a remedy in court. But this decision is consistent with the law cited by the court and other cases which have held likewise. This time we are reminded as lawyers and persons with potential cases that we must act - not wait.

Protect your rights in any civil case and move sooner rather than later to protect your rights. Don't wait - move. 

If you have been injured you need to pay attention to the limitations placed on every case. Not simply the statute of limitations (START there), but also the underlying legal precedent in that area of the law.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Six inmates sentenced to death for various murders will not receive new trials or new sentencing hearings, according to a decision of the Idaho Supreme Court. The US Supreme Court ruled in Ring v. Arizona,  that the Sixth Amendment‟s jury trial guarantee requires that a jury find an aggravating circumstance necessary to impose the death penalty instead of a judge.  Idaho's statutory scheme required, prior to that ruling, that the district court find the aggravating factor.  

Each of the six inmates whose cases were at issue in In re: Paul Ezra Rhoades had been sentenced to death under the Idaho statute - based on a finding of an aggravating circumstance by the judge, not a jury. So their challenge in State court was based on their claim that the federal law as determined by the US Supreme Court should require that their death sentences be overturned and they be re-sentenced. Justice Horton, writing for the Idaho Court affirmed their commitment to the traditional view that the federal rights at issue here do not require resentencing. There is, according to the Court, no retroactive application of the new federal rule announced in Ring. Bottom line - the process by which the death sentence was imposed stands.  The reason rests in the Court's holding in Schriro v. Summerlin (542 US 348, 358 (2004) that Ring announced a new procedural rule that did not apply to cases already final on direct review under federal retroactivity doctrine.

So this is a complex area of law and the case, interesting as it is, restates the law as decided on this point regarding retroactive application. The holdings of Schriro, Ring, and Teague v. Lane, are also a reminder of the value of the lawyer you retain to help get you through any case - not just a death penalty or habeas corpus matter. Here are two things for you to consider as you decide whether you should retain a lawyer for a criminal case:

FIRST - the law is often complex and application of its principles to your case may be critical to keeping you free.  That's right - free. Today I met with a client about a presentence investigation interview he is about to undergo. A question on the form he must fill out asks him what is important in his life. "Freedom and family," he said. I would not have a better answer. So with freedom on the line and various legal concepts and interpretations by state and federal courts, you should hire a lawyer. A legal education is essential if you hope to have the best chance at winning and staying free.

SECOND - the law is fluid. Before Ring, the Supreme Court had NOT held that the Sixth Amendment's jury trial guarantee required a jury finding of an aggravating factor for the death penalty. Most lawyers handling death penalty cases in habeas or on direct appeal (including me on three occasions) had argued the point, but without success. It was only after the "conservative" Supreme Court concluded the Sixth Amendment contained this requirement that this became a potential game changer. Still, as Justice Horton points out in his analysis, another case (Teague) limits the application of a new rule of law decided by the Court if it is procedural. The law is a living breathing thing - and it changes - even when the folks interpreting the law profess to look no further than the words of the Constitution itself. To give yourself every advantage, you should get a trained lawyer to keep you up on the changing legal landscape.

So the six death sentenced inmates remain so - at least at this point. Changes in the interpretation of the Sixth Amendment or some other legal provision may change that, which is why those death penalty cases seemingly go on forever. Whether your case is seemingly simple or obviously complex, do yourself a favor and consult with a trained attorney. You have so much at risk whenever the government contends you committed a crime that it makes no sense to try and handle your legal matter without a professional.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 At least once a week I get that call from a family member who wants me to help correct "an obvious miscarriage of justice" that has resulted in their father/mother/sister/brother or other family member being incarcerated.  "The lawyer forced him to plead!"  That was this weeks version of the always popular "please, please help me make this right!"

Before I get to the three things you absolutely need to know if your mother/father/brother/sister is in this situation, consider the Idaho Supreme Court's most recent reminder of just when our appellate Judges and Justices will - that's right I said WILL - turn back the sentence pronounced below.  In State v. Brian Cobler, decided December 28, 2009, Justice Jones (J, not W):  “In examining the reasonableness of a sentence, the Court conducts an independent review of the entire record available to the trial court at sentencing, focusing on the objectives of criminal punishment: (1) protection of society; (2) deterrence of the individual and the public; (3) possibility of rehabilitation; and (4) punishment or retribution for wrongdoing.”

The point of course is that a sentence must be tailored to fit the purpose for which the sentence is imposed, and appellate courts will not substitute their judgment for that of the sentencing court "where reasonable minds might differ."  

"To show an abuse of discretion, the defendant must show that the sentence, in light of the governing criteria, is excessive under any reasonable view of the facts." What this really means is that TRIAL lawyer had better do a great job of humanizing a defendant convicted of a crime, and use every tool available to lessen the sentence.

Unfortunately for Mr. Cobler, the Court concluded that a ten year sentence for sexual battery of a minor was not unreasonable.  Maybe with a little luck, some hard work and completion of a sex offender treatment program Mr. Cobler will find release, and the opportunity to try his hand at parole. 

And now the three things you must remember if you are considering hiring a lawyer to overturn a criminal sentence:

First - hire a great appellate attorney.  Candidly, I am not an appellate attorney. In Idaho, I can think of two or three great PRIVATE appellate attorneys.  IF YOU NEED ONE - call me and I will give you a name.  It won't be my name.

Second - Idaho has an incredible group of appellate attorneys who represent indigent defendants on appeal.  Call the State Appellate Public Defender if the Defendant you are trying to help has no money left.  Call them even if he does, because they are amazing and may be able to help you find someone who can help. Molly Huskey, the lawyer who runs that group, is a genius!

Third - There is only so much any appellate attorney can do - or any trial attorney for that matter. People come to lawyers with tragedy they believe we can resolve REGARDLESS of the facts of the case.  If your mother/father/brother/sister or family member pled guilty, you cannot expect miracles to rain down.  Life is complicated and the Courts (appellate and otherwise) are even more complicated. Rules and decisions and orders and stare decisis and other Latin doctrines conspire against you! My pal David Nevin used to have shirts that he gave clients proclaiming (in Latin of course) "the law favors not the weak of heart." He is right! You have to be nuts to take on the state in virtually any case, so don't do it mildly!  The meek do not want the earth!  Want to fight over a sentence? You have to show that the sentence is unreasonable in view of the facts of the case. So jump in with both feet, get a great lawyer and make a joyful noise like you care.

None of this means that the Court was wrong in deciding the Cobler case - truthfully I know nothing about the case - and the facts set out by Justice Jones seem compelling enough. My point is that justice is tough, so give it everything you have if you are in the fight. Your better chance is to convince the SENTENCING court that your defendant deserves a break and is a real person, not some identification number living out his or her days at the pen.  

So I must remind you of my first rule - if the person you love and care about is charged with a crime, spend your money on the best, most experienced criminal defense lawyer you can hire. There are lots of great trial lawyers out there - this is not a pitch by me for your case - so shop around. Ask lots of questions. Then pick someone you can trust and hope for the best, at the trial level.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

I am not a psychologist - and I don't play one on this blog, but the Idaho Court of Appeals has decided that criminal defense lawyers need to pay attention to their clients' mental states at the time they enter a plea of guilty.  In Ridgley vs State of Idaho, decided August 6, Judge Lansing held that the appellant's post trial challenge to his plea of guilty to Lewd Conduct with a minor under sixteen raised a question of fact as to his emotional state and his lawyers competence.  The district court had dismissed the petition for post-conviction relief, in which Ridgley claimed his lawyer did not pay enough attention to his emotional state when he entered the plea.  Every client who is charged with a crime is depressed to some degree, but this was different.  The conduct he pled guilty to occurred two days after Ridgley's wife died, and he was a suspect at the time.  He entered the plea just sixteen days after her death.  His lawyer met with Ridgley for less than an hour before he pled guilty, "did not provide Ridgley a copy of the police report, did not contact potential witnesses, did not watch or listen to tapes of interviews of the victim, and failed to advise Ridgley of potential defenses."  So that doesn't sound like great defense work, and in itself, might have been enough to send the case back to the district court.  Combined with the affidavits and evidence offered the district court to prove that Ridgley's mental state was equally suspect, the decision is not entirely surprising.  

So if you are facing serious felony charges like Ridgley was - spend time with the lawyer who is representing you.  Don't shortcut the process.  Tell that lawyer everything so you get the benefit of his or her experience.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link