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

 I have had some comments (some not so supportive) and calls (a few agreed) about my last post on Haiti. I know I am off topic here, but take a look at the Associated Press report today about the dismal failings of the government in Haiti to handle the job of providing support to its people. After seizing control of food distributions, the locals got it right: "They stole the rice!" The government stole the rice and is reportedly charging its people for food donated by the world.

I know - Haiti is chaos. But my point the other day was that the trumped up criminal charges against the Baptist missionaries is a distraction. "Pay no attention to the man behind the curtain. I am the great and powerful Oz."

America does a pretty good job of NOT taking the easy way out of our problems by diverting world attention to the minor trappings of ten folks who tried to get some kids to an orphanage. Poor planning is not a crime - usually. 

So I will not return to this off-topic soon, but I will continue to believe that justice will prevail for even misguided souls on a mission to save starving kids, some of whom were apparently "given away" by well meaning parents.

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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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 Reports tonight indicate that the City of Boise has passed new city laws designed to protect bicyclists on our streets. The ordinances would arguably provide new ways to criminalize driving too close or too aggressively around bicyclists. The truth is the new laws may make us feel safer while riding two wheelers on the road but they will do nothing - unless the City decides to enforce those new laws in ways that it would not under the existing law. Was it against the law to drive recklessly and endanger the lives of pedestrians before these new laws? Of course. So why didn't the police enforce the old laws by actively pursuing inattentive or reckless drivers? 

Three people died last year because of driver inattention. Good people's lives were lost and others ruined. Here is that all too simple truth - we can protect others - bicyclists and pedestrians and other drivers, by simply following that golden rule. If we all drive like we would want others to drive to protect our lives and the lives of our friends and family, the streets will be safer - new laws or not. 

And riders need to do a better job too. 

Last May I was almost hit near the corner of Broadway and Front. A driver in the "right turn only" lane changed his mind and went straight. I heard him accelerating behind me and off to the right just before he passed me on my right. I wondered if he would have passed one of his pals or maybe a kid that way. Had I not stayed put, I likely would have swerved in front of him as I moved to the right. 

Let's just try to do a better job of accommodating others on the road - bikes, kids, grannies and others. Thanks for the new laws Boise, but its new attitudes we need.

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 A guy at the store was incredulous - "how could he have pled not guilty!  His pants were on fire and his leg almost melted into the seats!" 

"Yeah," his wife chimed in, "adds new meaning to the term fire ball!"

And so it goes. Kind of like "how could you represent someone that guilty?" 

Here's how the press reported it:

"Umar Farouk Abdulmutallab's arraignment was brief — less than five minutes — and a not guilty plea was entered on his behalf. He said little, telling the judge simply that he understood the charges against him."

Whenever a defendant is arraigned in court, he or she is advised of the charges, the potential punishment and the rights that go with being a defendant in a criminal case in the US. Perhaps the most fundamental of rights is the presumption of innocence that cloaks every defendant - even the unpopular ones who might threaten the lives and safety of fellow passengers on a plane.  You enter a plea of NOT GUILTY to place the burden on the prosecution to prove guilt by legal and competent evidence establishing guilt BEYOND A REASONABLE DOUBT. That not guilty plea starts the process that leads to discovery of investigative reports, consideration of the defendant's competence to stand trial, and any available defenses to the charges.

So when a guy can't blow up his own pants, and still pleads not guilty - he is asserting those same guarantees that each and every defendant has in a criminal trial. And that is big stuff. The kind of stuff that separates our system from other systems in other countries that end in "...stan." We have shed American blood for over 250 years to make sure that no defendant ever has the duty to prove his or her innocence. I served and maybe you did too. We served because we believe in the system, even when it looks like the defendant mocks its existence.  Not so - we have a system that relies on procedural rules, and those rules help to keep us free.  

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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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 Kari Atkinson, a 28-year-old former middle school teacher will spend at least two years in prison for having sex with her 14-year-old student.  To protect the boy, the court also ordered that she not have any contact with him for eighteen years.  The sentence includes two years fixed time - that is time that must be served before Atkinson is eligible for parole - and sixteen indeterminate years.  The indeterminate time runs after the fixed time.  

This case illustrates the Idaho sentencing scheme.  A person sentenced to the Idaho Board of Corrections may be eligible for parole, but never be released.  Release depends on performance in prison.  If Ms. Atkinson is released, her life will be "managed" by a Parole officer assigned to her case.  

We often hear that women and men receive different treatment from the courts when it comes to sex crimes.  Perhaps that is true, perhaps not.  Still, the system takes a very dim view of sex with minors and will continue to punish those who violate the law.  The two years of "fixed" time may not seem like much, but even a few days in jail serves to remind most folks of the value of their liberty.  And if Ms. Atkinson thinks that prison is tough - on release she will still have to face a parole officer who may keep her away from minors and family members, and who will decide where she can live, what she can do and how she can do it.  Parole is not freedom.  Sometimes it can be an opportunity to really change your life, but often it is not.

The high cost of a criminal conviction includes the loss of freedom over your life and the limitation on your liberty.  It also includes the lost opportunities for careers and relationships.  

Have a story to share about lost liberty?  Post it here and let's start a discussion.

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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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 A 16 year-old Boise boy will face a criminal charge of vehicular manslaughter for his actions that are alleged to have caused the death of Kevin Pavlis.  Kevin worked at Idaho Mountain Touring and was well known in the bicycle community. His death - just a day before Boise's Ironman 70.3 race - left his young wife and child without a husband and father. The sadness at his loss affected those who knew Kevin and many who did not. And the tragedy started a dialog about providing safe passage in Boise for bicyclists.

The criminal courts may not be the best place to handle cases like this, but this young man will have his fate decided in Juvenile court.  He should not and will not be treated like an adult.  Kevin is gone, and nothing done in Juvenile Court will bring him back.  Likely nothing about the criminal case will make Kevin's family feel better either.  Maybe though, some other 16 year-old kid will look a little closer before making that turn, and save a life.

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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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 Late breaking news - although it seemed so likely that the term NEWS may not get us there - Robert Manwill's mother Melissa Jenkins and her boyfriend Daniel Ehrlick have been charged with First Degree Murder.  First Degree Murder carries with it the possibility of the death penalty - an issue which is more complex than it seems whenever we talk about it in the abstract. Idaho law requires not only premeditation, but some other aggravating circumstance to take a killing out of the "ordinary" murder setting. So time will tell whether that is an issue - for now - check out coverage at ktvb.com and the Idaho Statesman. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 There is an interesting article in the Statesman today about an old client - Randy Weaver.  I was lucky enough to have tried the "Ruby Ridge" case with Gerry Spence, Garry Gilman, David Nevin and Ellie Matthews back in the early 1990s.  By the way - Gilman never gets enough credit for his efforts on the case.  With neither fringed jacket nor cowboy hat, Garry was a constant source of support as the trial preparation got under way.  So it seems that Ed Brown, a New Hampshire tax protestor (and dentist if my memory serves correct) wants to call Randy Weaver as a witness in his case.  Randy visited Brown and his wife while the Browns were holding out against the feds.  Their case ended peacefully - Weaver lost his bride and his son.  Randy and Kevin Harris were both shot, and Deputy US Marshal Bill Degan (everyone said he too was well liked and regarded) lost his life in one of this country's saddest times. 

So what would Randy testify to on behalf of Ed Brown?

Not sure - but it might be fun to watch  this one.

The last time I heard from Randy I had just finished a morning run and had jumped in the shower. He was calling me to come and see him as he sold his books at a gun show.  He looked the same as when I had last seen him - just a little grayer and heavier.  Then again, most of us look a little older and grayer!

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 I am so saddened by today's news that another young man - a wonderful, bright, respectful young father and husband - was needlessly killed by an inattentive driver last night on Hill Road.  I knew this kid, he was truly a kind and caring young dad.  He leaves behind a heartbroken wife and two-year-old child.  We are hurt by this loss - all of us.  And I am saddened for the young person who struck him last night, and that young person's family.  We all lost here.  

So what can we do?

Riders - please be more careful out there.  We need to pay even more attention to intersections and trouble spots.  I wrote this week that I was dusted off by a guy in a Green Ford Expedition on Monday.  I had fortunately not moved over any further to the right or I would also have been hit.  I know that riders have the right to use the roads, but we must remain vigilant about the traffic around us.  

Drivers - we must all pay even more attention to Riders at intersections and trouble spots.  A friend told me today that Hill Road has become a "war zone" with bikes and cars at each other like Sunnis and Shiites fighting over the right to control Baghdad.  We are not at war - bikes and cars - we are friends, family members and community members.  As we drive we must be more careful.  We must give room.  We must be respectful.  We must treat every person on the road with the care we would treat our own children on the road.  

And parents of young drivers - sit down with your kid and talk about this problem.  Bike riders are hard to see sometimes and they need to look.  They need to wait for that rider at the corner.  They cannot "race" through the intersection.  Regrettably they lack the experience behind the wheel to understand that their lack of attention may hurt or kill.

Another father-husband-son-brother-friend is dead.  Enough.  Let's try to KEEP PEOPLE ALIVE out there.

Slow down out there.

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So this week I am really concentrating on getting to Saturday's Ironman 70.3 - alive.  This morning on my ride some guy in a green Ford Expedition ran through the right turn lane (off Grove at Broadway) and about half a block later passed me on my right.  That's right - my right!  I wondered what this guy was thinking and after pounding on his window and asking very politely ( "what the .#@4!!") he responded likewise. He had a truck - and what did I think I was doing riding a bike in that far right lane in the right direction? And that's how bike riders get killed in Boise.  A simple ride, a simple corner, in their correct lane and dusted off by a driver who owns the road.  

My dad blames the bikes - or their rider's "attitudes."  Save that stuff for my obit' if they get me. Truth is we all need to share the road.  So if you're out there and see some old guy on a bike trying to survive another week to Ironman - give him a break!  Take your time around him and try to keep him alive!  Someone out there likely loves and cares for him! 

Not bad for an off-topic rant, and if I can just get past that survival swim on Saturday - I will return to the law!

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 A funny thing happened on the way to the courthouse - I was approached by Charles Crafts to join in the defense of Zachary Neagle.  I have been covering the case in this Blog but now that must change. I can only say that I have met with Zachary - and in person he is every bit as young and naive as the photos suggest.  His next appearance is Wednesday - for the preliminary hearing.  So on to another subject for the blog and on to helping Charles Crafts build a defense for this kid.

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 In the continuing saga of whether Zachary Neagle should be charged with any adult crime (answer here is "no"), Canyon County Prosecutor John Bujak blinked today - literally Today.  In an interview aired today Bujak indicated that if the facts show there was provocation (maybe sexual abuse?) then he might have to consider a manslaughter charge.  The "M" word - so maybe all the pressure is making a difference. The public is ready to rally to this kid's defense and Bujak is an elected official. Public pressure can make a difference - so to readers of this blog (both of you) - keep the calls going to Canyon County's top law enforcement officer - prosecutor Bujak. 

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 KTVB's Kaycee Murray got the interview tonight - Zachary Neagle's mom.  The Today Show was in town to get the story and Casey got the scoop tonight on Zach's current situation. As reported, the 14 year-old is charged with murdering his father, Jason Neagle. Jason is reported to have sexually molested Zachary and another child in the family. Cindy Neagle said that she never suspected sexual abuse, nor did she see any evidence of that. She also said that she is angry he was charged as an adult. Zachary's defense attorney is Charles Crafts - who says that he is meeting Zachary "as a counselor." As to the evidence - he says that he is looking at the case as a potential sexual abuse case. 

We will have to watch the Today Show tomorrow and see where this is going. Check out the prior posts below. And then watch for that picture of that little kid - he looks about 10. 

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Boise's KTVB reports that support is growing and public empathy continues for Caldwell teenager Zachary Neagle, who is charged with murdering his father.  As posted earlier here - the likely reason for the killing is self-defense and the defense of Zachary's younger sister and brother.  Reportedly - Zachary's father had sexually and physically abused the child.  Here's what one Channel 7 viewer says about the case:  

 Nampa mother Teresa Bennett doesn't know Zachary Neagle. She's only heard about the case from watching the news.

"He's a child, and I know that I am not the only one out here that's heart is breaking for him," said Bennett.

That's right - he's a child. And he deserves a chance to grow up outside prison walls.  Now he needs a team of lawyers who have handled murder cases before - and fortunately the Canyon County Public Defender's Office has those lawyers. The key here is EXPERIENCE - not just a criminal defense lawyer but a defense lawyer who has faced down the state when his or her client is charged with murder.  Sleepless nights, countless hours and lots of brainstorming will be needed to keep this kid out of prison. Nothing prepares you for handling your first murder case - except having been in a couple of them BEFORE as a member of a team defending a person charged with the crime. So Zachary Neagle supporters - don't settle for anyone who has not done this before. Choose wisely if you are going outside the public defenders because lots of lawyers talk experience - those guys have been there before.

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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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 There is news today involving two Boise cases in which teens convicted of murdering their parents have received life sentences.  In the Ada County Courthouse yesterday, Judge Michael McLaughlin sentenced Derek Lewis to life in prison with twenty years "fixed." Under Idaho's sentencing scheme, that "fixed" component means that Lewis will not become eligible for parole until he has served twenty years. He is eighteen years old.  Lewis pleaded guilty to killing his father by shooting him in the head. At sentencing Judge McLaughlin made much of the fact that Lewis still insists he "accidentally" killed his father, although he entered the plea earlier to a charge that requires proof of an intentional act. McLaughlin told Lewis he would never get parole until he admits his responsibility for the killing. At least Lewis will have a chance at release, such is not the case with Ethan Windhom, who killed his mother when he was 16 and was sentenced to "fixed" life by Judge Cheri Copsey.  The Idaho Court of Appeals upheld that sentence yesterday, based on the "egregious" nature of the homicide.  

All of which is a good reminder that the type and severity of sentence in any criminal case is somewhat unpredictable. Is one killing really that much different from the other in these cases? Although Lewis has apparently not accepted his responsibility for the murder of his dad, Windhom has been diagnosed as schizophrenic. If his case is more egregious, it may be the result of the mental illness. In Idaho there is no insanity defense, so the "schizophrenia card" does not buy much.

What is apparent from both decisions is the fact that the Judges in each case were looking for evidence that the defendants understood and accepted responsibility for their crimes. This is not new - in virtually every case the court is looking for proof that the defendant "gets it." That is to say that the defendant has to convince the court that there is a reason to give the defendant a chance. They need to see that the defendant "gets it." If they don't see that, it is likely the sentence will not give the opportunity needed. If you have a sentencing question, jump into this and leave a comment.

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 For all those times I have watched people throw cigarette butts on the ground, I never really thought I would see anyone charged with littering by cigarette butt - but now I have.  In State v. DP - name changed to protect the presumed innocent - the Boise City Attorney's Office has charged DP with the misdemeanor for doing just that.  When those Boise City employees do the same thing down at City Hall will Boise City Attorney Colaianni charge them too?  Will Assistant Boise City Attorney Andrea Carroll rush to court to charge members of the Boise Police force with the same crime?  Will Detective Ryan L. Jones of the Boise Police Department now spend his valuable taxpayer time hunting down the thousands of offenders who pay his salary?

I kind of hope so - because there are probably enough offenders out there to pay for a new "Cigarette Butt Court."  Then we could have a new Judge and perhaps another Misdemeanor Probation officer to monitor the butt dropping habits of these offenders.  

For our part - we are getting ready for trial!  

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

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

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

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

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

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 So here we go again - another Case o' the Week from the Ninth Circuit Blog deserves our attention. Headlines: Prosecutor's Mis-statements Result in Overturned Death Penalty.  But not here, in Idaho. The case is out of Nevada, and the issue was whether statements made by the prosecutors in voir dire and sentencing violated the Defendant's 6th and 14th amendment due process rights. Apparently the prosecutors told jurors that even if they gave the Defendant a "life without the possibility of parole" sentence, he might still be released. Survey says - do it all over again and don't say stupid stuff like that again! Does this mean that Mr. Sechrest, the convicted killer, is going free? Not hardly! It simply means that the State must re-sentence him. Could he again be sentenced to death? YES. But that's the thing about due process - it has to have some meat on that bone to keep the playing field something close to level.  You can find out more about the Sechrest case here where the decision is available for your review. 

What does this have to do with your case? Everything! You have the right to a fair trial. If that trial is not fair, if the government does not play by the rules, an appellate court may be called upon to decide whether you received the "process" you were "due." But by far the best message I can give you if charged with a crime - get the best lawyer you can afford. Your life and liberty hang in the balance. Check out our prior posts on questions to ask the attorney you are thinking of hiring by searching under the category Assistance of Counsel, and call me if you need help finding just the right lawyer for your case. It may be me - or it may not. Either way I am happy to talk to you.

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 There is news today out of Utah that five Blackwater Security Guards have been charged in the firefight that left 14 Iraqis dead and others wounded in a 2007 Baghdad attack. They have been ordered to appear in Washington in January, where they will enter pleas of not guilty. As a former JAGC officer, I get the need to hold accountable those responsible for war crimes, but this is wrong. These Security Guards are all former military service members who were offered more money to fight as mercenaries in Iraq. They likely made ten times as much money to do the same work, but this time they did so without the benefit of the law of war. And who decided that we should fight the Iraq war by proxie? The same leaders who have lacked the will to put enough military service members in the field to do the job. Ranting? OK, a little - but I have been contacted by a former Blackwater Security Guard (not yet indicted) and I have empathy for their plight. They were there to provide security - a job that is ordinarily reserved for military police. The government now has left these men hanging - and charged them with crimes. I say support them.  Got a different opinion (no matter how wrong)? Let's hear it.

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 I had a call yesterday asking if there was an online place to find out about the daily arrests in Boise.  HERE it is. You can easily check out who has been arrested in the Boise, Idaho area, on a daily basis. And yes, DUI arrests are included.

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 In an article today in the Idaho Statesman, a federal agency the investigates transportation accidents says Idaho could do better fighting drunk drivers if it would adopt its eleven (11) "best practices."  The bottom line - the law and its enforcement would get tougher making the crime even more - well - criminal. DUI laws in Idaho are tough, and prosecutors have the upper hand in plea negotiations, evidence that is permitted to be offered at trial and available expert witnesses. As I have written here before, you are at a huge disadvantage if charged because the deck is already stacked against you!  Idaho already uses many of the "best practices" it says make for tougher enforcement. Could Idaho get tougher? Sure. If the state wanted to make it illegal to ever drink and drive it likely could pass a law to ban any level of alcohol in the blood of drivers. So what do you do as a driver - simple - DON'T DRINK AND DRIVE. What if you are charged with DUI? Isn't everyone charged guilty? Of course not! Regardless of their zeal to get every drunk driver off the road, not everyone arrested is over the limit (.08). The field sobriety tests relied on by the police are NOT necessarily evidence that you are over the limit. The Breathalizer 5000 is not fool proof either - it does not measure breath alcohol at all. It measures the passage of light through a sample of breath that may contain alcohol and then converts the data (speed) into a breath alcohol level. Bottom line - Idaho may get even tougher on persons charged with driving under the influence of alcohol or drugs, making it more difficult for the innocent person to get his or her day in court. Just remember - you are presumed innocent unless and until there is proof beyond a reasonable doubt of your guilt. So don't go this one alone - find a good lawyer to help you through the process.

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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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 Once in a while a lawyer blogger needs to talk about something besides lawyering - so I confess: I am a Mac, not a PC. Truth is I have always used Macs to make it easier to organize for trial. I think I am a better lawyer because I have an easier time with the technology. I am not alone - consider Ben Stevens' post in The Mac Lawyer - one of the most popular law blogs in the nation. Apparently our new President, his VP, the Russian Prez and Swedish Foreign Minister are all Macs. If you're a PC don't worry about it - it's the work, not the computer that makes you a great lawyer. Lots of America's top lawyers are PCs including some of my best friends, but the Mac just gives you a little different feel when it comes to representing your clients. If you're a client or a potential client - rest easy. Technology is a great thing and defense lawyers are generally years ahead of the prosecutors when it comes to technology.  

NOW the point to all of this - your case is your story, which is your case!  And the lawyer who can use the computer to help tell your story is the lawyer you want to fight for you.

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Imagine this - a US Senator gets convicted of criminal conduct, doesn't resign, goes to court and when it all goes bad and he is convicted, he is shocked by the way he has been prosecuted.  What went wrong here?

"This verdict is the result of the unconscionable manner in which the Justice Department lawyers conducted this trial," Stevens said. "I ask that Alaskans and my Senate colleagues stand with me as I pursue my rights."

Alaskans may rally behind Ted Stevens, but it seems unlikely the Senate will.  That "just forgot to pay the taxes on a couple hundred thousand dollars" argument sounds a little tough to sell.  Guilty of corruption.  

Let's take a little lesson from the Stevens case - you cannot win any trial unless the jury wants to help you. I mean it - they have to want to let you go. They only will help if you are more like them than you are like - well - their perception of "criminals."  So being a US Senator might help you, but it might not. Every case is has a story - and if you want the jury to buy your story, you need a really great storyteller.  That is what successful trial lawyers do - they tell great stories for clients who cannot do so.

Your criminal case is a story.  Find a lawyer who can tell it for you!

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News today by mail adds me to those lawyers selected for inclusion in the 2009 edition of The Best Lawyers in America in both specialties of Non-White-Collar Criminal Defense and White Collar Criminal Defense.  Special thanks to my peers for their vote of confidence in the criminal defense services I provide.  Now back to work - maybe on your case.

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In an interesting Idaho Court of Appeals decision, the writing is on the wall for anyone cutting a cooperation deal that requires the Defendant to assist a drug task force by “identifying, apprehending, and convicting those people involved in the use, distribution, and manufacture of controlled substances.” No drugs - no deal!  In State v. Chacon, Judge Lansing finds that the appellant had breached his cooperation agreement with the State when he was unable to buy dope as directed by the drug task force. Instead of a recommendation of five years fixed (twenty more indeterminate), the court upheld a sentence of fifteen fixed and twenty years indeterminate. Chacon, the Court reasoned, had breached his agreement. For his part, Chacon argued that it was impossible to perform because the good folks in the drug community figured he likely had some reason for his release from jail pending the outcome of the case. They were right - he had made a deal to dance, but the community cut off his legs.  Nobody wanted to sell him drugs. My only question about this case is whether Chacon's breach was intentional. Sure - he agreed to buy dope and help out the task force, but sometimes, no matter how hard they work at it, informants cannot get it done. The opinion suggests Chacon did not work very hard at this, so perhaps the result is not unexpected.  Still, there is a good lesson here - a defendant's failure to live up to the terms of his cooperation agreement will likely not be excused.  There appears little room to argue about whether performance was impossible. More importantly for criminal defense lawyers with clients looking for an earlier release based on cooperation, make certain that your client can get it done.

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Congrats Courtney Peterson - new lawyer!!  Classes, study groups, tests and then the mother of all tests - the Bar.  I always knew you would do it!  Way to go!

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