We have closed Peterson Lawyers as I am now practicing at Michael Barlett’s law office. My new email address is chuck@bartlettdefense.com and the new office telephone number is: 208-629-2311. Michael and his crew are great advocates. I am lucky to find a home there. The office is currently located at 1002 W Franklin Street in Boise. That may change soon as we look for more space to expand.

My current caseload still has my full attention and the attention of the lawyers and paralegals at Bartlett Law.  I will be taking new cases going forward; just not as many. The time has come to reduce my working hours and spend more time doing “other things.” 

I am not retiring and still intend to go out with my boots on, but I have an old guitar that begs to be played, telemark skis that demand more runs, and too many bicycles that need more miles. All of this and a family that demands a bit more of my time and attention. 

Do not hesitate to contact me at the above email and/or telephone number with any questions. 

I just spent a few minutes watching this video from a former investigator who has spent his last 20 years carrying the doubt of whether he and the other officers investigating the death of a child got it right. They didn’t. An Autistic father is on death row because nobody knew of his developmental disabilities, his daughters medical issues or the lack of scientific validity to shaken baby syndrome. Unless the Court system intervenes, Robert Robinson will die in Texas for a murder he is almost certainly not guilty of committing. His baby daughter likely died from natural and accidental causes.

The video is compelling. Brian Barton is no longer a detective. Years ago he traded the badge for the ministry. Robert Robinson is scheduled to die on October 17. He is an adult with Autism. His seeming failure to care for his dying daughter at the hospital led police to believe he had killed her. They were, in Barton’s words, almost certainly wrong.

“We need to abolish the death penalty. Humans are too fallible to do this fairly. We make mistakes. I made a big mistake. It’s a weight I will carry for the rest of my life.” Brian Barton

Go here to see for yourself.

Our system of justice does not always get to the truth. We fail as people, even when we do the best we can. And when you add in the complications of a disability – the complexity of flat appearance and an inability to communicate effectively by a person with Autism – the system cannot reliably determine guilt or innocence. Jurors may see a person detached from the severity of the suspected crime. They may see someone who cannot or will not make eye contact. They may take the behavior as evidence of guilt.

If you have a loved one with Autism Spectrum Disorder who is facing criminal charges, make certain you find an attorney who understands the disability and who can help you in your search for justice. And please take the time to watch the video.

Self Defense Results in Dismissal of Murder Case 

In two recent cases, the potential use of self-defense resulted in dismissal of murder charges against our clients. Self-defense is alive and well, at least when you have prosecutors who approach their cases mindful of how a jury will likely view the evidence. Of course, it also helps to have the facts to support the defense!

In State v. R.C. our client was charged with second degree murder in Canyon County. We substituted in as counsel after a lengthy discovery process by his first lawyer had resulted in an offer by the State to accept our client’s plea to manslaughter with a resulting 25-year sentence. That offer came after Court ordered mediation in which client had been told that his self-defense claim would not likely succeed at trial. 

Client’s family came to us looking for a “second opinion,” and hoping that there was some way to avoid their son spending so much of his life in prison. The facts looked good for self-defense. Client was a young guy who had been out with friends and his girlfriend the night of the incident. He was driven home by the girlfriend, and he was intoxicated. They had argued and he did not want to go in the house, opting instead to stay in his car. She tried to get him out and in the process her mother, who had been babysitting, came out to the car. Girlfriend’s mother claimed that R.C. had hit both her and her daughter when they tried to get him out of the car. Her mother called her boyfriend to come over and settle the matter. When her boyfriend got to the house, he went directly to the car in which R.C. was sitting and started threatening to beat him. He pounded on the car hood, and kicked the car door, then pulled on the door until it opened, threatening our client with a knife. When the car door opened, our client believed his life was in grave, immediate danger. Fearing for his life, he reached for a handgun and shot the boyfriend, who died at the scene. He did not wait for police to arrive, and eluded authorities for two days before he turned himself in. 

The key to the case was our client’s stepbrother, who had been on the phone with R.C. while he was sitting in the car. Stepbrother heard the threats by the deceased and confirmed the facts we relied on in getting the charge dismissed by the prosecutors. He told our investigator that he heard the deceased arguing and threatening R.C., and heard the gunshot, followed by silence. He thought that R.C. had been shot and drove to the scene.

By the time the case was settled, R.C. had spent nearly a year in jail waiting for trial. The State’s prosecutors realized that the evidence supported self-defense and agreed to dismiss the murder charge in exchange for R.C.’s plea to misdemeanor battery on his girlfriend’s mother (she claimed to have been struck by our client when she tried to get him out of the car), and to misdemeanor resisting and obstructing an officer (by leaving the scene). He was placed on probation and released from jail. 

Perfect outcome? Not hardly, but better than 25 years in prison. Hats off to Tony McKnight, the investigator who followed up on the stepbrother and gave us the evidence we needed to end the nightmare. Our client is back at work and rebuilding his life. The real treat as his lawyer was knowing that he was out of jail and back with his family.

Next time – the recent second case in which a murder charge was dismissed based on self-defense. 

I just finished a criminal trial and a week later, mediation in a civil case. Each reminded me that this is an adversarial system. Your case is not necessarily about the truth. Harsh? Maybe, but that is the reality.

Whatever type of case you are involved in, the legal process involves two different narratives, or stories. In the criminal case there is the prosecutor’s version of guilt and your version of innocence. It’s winner take all in the criminal courts, with your life and freedom on the line.

In a civil case (for example personal injury or wrongful death), there are also two stories. As the plaintiff (person who brings the case), your story is about how you were a victim of another person’s actions and the damages you incurred. As the defendant (person who is being sued), your story is about how you are not to blame, or how the plaintiff’s actions brought about his or her injuries. That story is also about innocence.

In every case, each side supports their story with evidence. For example, in a homicide case, the prosecutor will offer evidence of guilt. The law requires proof beyond a reasonable doubt, and the burden of proving a crime is always on the prosecutor. The defendant has no requirement to prove anything. He or she can remain silent, but that almost never happens. Why? Because even before a trial most defendants have made statements to the police.

If your defense to homicide is self-defense, your story will mean the difference between guilt and innocence. Self-defense is an absolute defense to criminal and civil liability under Idaho law, but almost nobody knows what makes the use of force lawful as opposed to unlawful. Get it wrong and you could go to prison. So do not expect that by telling the law enforcement officer your version of events you will automatically avoid being charged criminally. The story has to be told correctly to escape the criminal justice system.

“I just want to get your side of the story.” That’s what the police will say to try and get a statement out of someone they think is a suspect.

The right to remain silent exists, but it is seldom seen in the wild. Everyone talks. If they don’t talk to the cops, they talk to their spouse or friend or family member. Not long ago I handled a criminal case where the defendant told a friend that he had left a “package” in a “can” where his car had been found. Guess who was listening. The jail phone calls are recorded and each call is reviewed. In that case, federal agents were waiting at the address for the friend who showed up to retrieve the “package” of methamphetamine from the garbage “can.” To borrow from tennis; game, set, match. Client cannot escape and goes to federal prison for a long time. What would have happened if he had simply let it go? Not told someone to go and get that package with three pounds of methamphetamine? He would likely still have gone to prison, but for a far lesser amount of time.

“Loose lips sink ships.”

In the self-defense context, whatever you tell an investigator or detective or “first cop on the scene” is your story. If it is not just right, you may face a criminal trial regardless of whether you thought you had the right to use force to repel an attack or defend your property.

Even in a civil case, the parties have likely told their story to friends, co-workers and others before they have a lawyer. Statements made by parties may be viewed as admissions, and an admission of liability is a dagger through the heart of the case. That dagger can cause a settlement for even the best intended party in a civil case, or criminal matter.

Jurors never really know all the facts. Their version of what happened is framed by the parties and their presentations in court. So as you think about a case, whether it is a civil case or a criminal case, remember that the person advocating for you is that lawyer you have chosen. The way the case is framed for the jury may be the most important task for the lawyer, so do not make the job harder by spreading your story to others. Save it for your lawyer.

Once upon a time, as I returned to private practice from my time as Executive Director of the Federal Defenders of Idaho, I made plans. Not going to get behind. Going to keep that calendar clear enough to run, ride or swim every day. Keep my time for me, and Sue and the kids.

“Sweet dreams are made of this….” But dreams are not reality.

That Hebrew prophesy came true. “Man plans, God laughs.”

So, as I think about time, or the lack of time for life in a busy law practice, I am recalling the advice of my close friend and “lawyer coach.”

Be true to yourself and the stuff that really matters to you. In other words, focus. Set your priorities. Plan your time and don’t give it away.

Priorities are tough for me to sort out. I want to work hard for great clients with real problems. My problem (and maybe yours) is figuring out a way of planning my day and not get lost in the “too many” people who vie for it.

As my paralegal and “best office brain” says way too often, “this place was a zoo today.” How do we get past that “way too busy” problem?

First, I need to reverse engineer the practice. Don’t take cases that will distract from the most important things I want to do. The stuff that really matters to me. Great clients, not necessarily huge cases. Folks in trouble, misunderstood and underserved. Mostly federal criminal defense as that is where I like to practice. Kids and addicts looking to change their lives.

More importantly, I need to focus on my life. My work has to fall into place with my priorities; family first, health always, time to relax and breathe. That’s real life. Sitting under a tree for a few hours with some great book. Riding bikes with a couple little bits. Dinner with a bride who still rocks my world after four decades.

Saying no isn’t easy when folks with problems call, but it can mean more time to do a better job for the cases we accept. It can also mean that I have more time for me.

Yesterday I heard Patty (the aforementioned “best office brain”) tell someone on the phone, “I’m sorry but he is simply too busy right now and I can’t let him take that case. Maybe we can help you find another lawyer.” A pit bull blocking my door!

Thanks brain. We all needed that.

Blogging daily? Not very likely, but let’s just figure more often.

Next up – case planning; theories, themes, and winning. Where do you start? Spoiler alert – for me it’s with the other side. Understanding their case so we can build the case you entrust to us.

I mean it. I will not wait another four months.

You may have read that my dad, Chuck Peterson has returned to our law firm, Peterson Lawyers, after a year as the Executive Director of the Federal Defenders of Idaho. His selection to lead that organization a year ago was an occasion for celebration, and loss. I was proud he had been selected to lead the great lawyers and staff at FDSI, but I was also sad to see him leave private practice.

Privately, I figured he would be back. 

Now that he is, I am happy to announce that Chuck has again been recognized as by Super Lawyers, for 2022. He has also been reviewed by Martindale-Hubbell as an AV Preeminent Attorney for 35 years. Our firm has been recognized again by U.S. News – Best Lawyers as a top tier criminal defense law firm, and Chuck again is recognized by Best Lawyers in both areas of criminal defense – general and white collar. 

Welcome Back Dad!

Courtney Peterson

I thought it might be good to go through some of the basics in case you have been charged in a criminal case. First though, remember that a charge is just that. A claim. Something that someone says happened. The charge is not proof of anything and the presumption of innocence remains one of our most basic rights. The state or the government must PROVE that you committed a crime. They must prove that by legal and competent evidence establishing guilt beyond a reasonable doubt. That standard is much higher than in a civil case. Most jurors I ask say that proof beyond a reasonable doubt is almost proof to a certainty.

The question I usually get from someone charged in a case is “what happens next.” The answer depends on the level of the charge and the court that is handling the case. Let’s start with misdemeanor offenses, in state court. Suppose you face a charge that you committed a battery (an unlawful touching, think bar fight for example). If you were arrested at the time and did not post bond to get out of jail, your first hearing will provide the judge with an opportunity to advise you of the charge, the potential maximum punishment, and your rights as a defendant (including the right to an attorney at court expense if you cannot afford to hire a lawyer). The court will also hear your argument why you should be released or the bond lowered if applicable.  Your  release could be based on your promise to appear or you may be required to post a bond. A lawyer can only help you provide the court with information about your employment history, connections to the local community, education, prior criminal history if any, and your plan if released. So having a lawyer is critical at this first stage and at every other stage.

If your case is a felony in state court, the same general issues will be considered. Again, your criminal record and plan if released is important. Generally, the law favors release but the court will consider the likelihood you will show up for court in the future and whether your release would pose a risk of harm to persons in the community. So if you have threatened someone by phone while in jail awaiting that first hearing, don’t expect to be released. Those jail calls ARE RECORDED! A judge’s primary function in life is to protect society. Your freedom requires that you not make threats, or act like someone who cannot be trusted.

At the felony level in state court, your next appearance will likely be a Preliminary Hearing. You will be given a date to appear before a magistrate judge who will hear evidence and decide whether there is probable cause to believe a your have committed a crime. The burden of proof at the preliminary hearing is less than at trial. Substantial proof, or probable cause, is enough to cause the case to be “bound over” to the district court, which will then arraign you, set dates for a Pretrial Conference and for Trial. The exception to this process occurs if your case has been before a Grand Jury which already has determined probable cause. If that occurred, you will be told you have been “indicted.” Don’t worry. That term does not mean anything more important, but it signifies you will not have a Preliminary Hearing. That Preliminary Hearing has the advantage of letting you and your lawyer see the witnesses and some of the exhibits, but typically the prosecutors only provide a minimum of evidence – just enough for the finding of probable cause.

If your case is a felony in federal court, the process will be much the same as above. Your first appearance is typically before a federal magistrate who will advise you as above, and consider whether you will be detained pending trial. In federal court, the Bail Reform Act sets out the terms on which your release or detention pending the trial of the case will depend. In most federal drug cases, for example, the presumption of release is turned upside down, leaving you to overcome that presumption you will await your turn in jail, or at a federal detention center. A lawyer can give you the best hope of getting released if he or she understands the federal standards for the detention hearing. Get some help!

Most cases in Federal Court are brought by way of the Grand Jury, so that Preliminary Hearing is unlikely to occur. Federal Courts are more formal and the rules are somewhat different from state court, so your lawyer must be familiar with the procedures that apply in a federal criminal case.

You may also wonder how long it will take to get your case to trial. In state and federal courts, the pandemic has clogged the dockets. Your state case may take 6 months or more and the same is true of federal courts. That time is spent preparing for trial, understanding the case, learning about you and your story, considering whether there are pretrial motions to file, and then deciding whether to go to trial or work out a plea agreement with the prosecution.

More on how we spend our time getting ready for trial in the coming days.

A year ago I left private practice to become the Executive Director of the Federal Defender Services of Idaho (FDSI). I became the head of the office, hoping to manage, supervise employees and practice federal criminal defense.

I had been handling federal criminal cases as private counsel and as a member of the Criminal Justice Act Panel (CJA) since leaving the Army in 1985. The Defender job seemed like a good fit, but by springtime I was seriously missing the courtroom and my old private practice. The Executive Director position simply did not provide enough time for me to be a good manager, good supervisor and stay active as a criminal trial lawyer.

By May, I had decided to return to private practice with my daughter. Back with old friends. Back with the wider variety of state cases and my year of experience focused solely on federal criminal law and procedure, I was ready to rejoin Peterson Lawyers.

Today I am back in my old office, with new clients coming through the door in search of help and advice in criminal cases before the state and federal courts.

Here are three things I take away from my year-long “federal only” experience.

  1.  The lawyers and staff at FDSI are great advocates. While they may not see as many trials as their private practice counterparts, the Assistant Federal Defenders there spend a ton of time focused on federal law, federal criminal procedure and federal sentencing. If you are in a federal criminal case you need a lawyer who can unravel the federal sentencing guidelines and who understands the impact of the latest cases from the Circuit Courts and the United States Supreme Court. Your future depends on that. Federal cases are different from state cases. Federal prosecutors (Assistant United States Attorneys) rely on their investigators and time to build nearly airtight cases before they seek an indictment. So if you are charged in a federal criminal case you need your own team of lawyers to level the playing field and to catch up with the team that built the case against you. You need experts in federal criminal law. FDSI lawyers are just that, and FDSI is staffed with great paralegals and investigators. As important, everyone at FDSI is committed to indigent defense and focused on the mission of providing the very best representation money cannot buy. Kudos to each and every one at FDSI, I will miss them.
  2. Winning criminal cases takes incredible preparation. Ok, this is not news but it was reaffirmed by the results I observed from the two trials the office defended during the past year. In each, the teamwork of the lawyers, paralegals, investigators and admin staff produced an approach that held the government at bay. In one case, a young man was acquitted of unlawfully possessing a handgun during an altercation with his ex-girlfriend. He had been told by deputies at the scene to turn the gun (the ex-girl friend’s gun) into the local police, and had done so. Federal charges followed and he was acquitted. Great teamwork by FDSI kept him free. Another case that had been ongoing for two years went to trial with nine defendants facing a variety of charges arising from the sale of cell phones – most of which had been refurbished. FDSI lawyers represented only one of the defendants, but they pulled the laboring oar for all the defendants and their lawyers (most were CJA lawyers) and not a single defendant was found guilty. Two defendants (both represented by CJA lawyers) were acquitted completely and the balance of the case was hung – meaning they face another 6-8 week trial this spring. I know from my experience handling state and federal trials, both civil and criminal cases, that the key to winning is preparation. Understanding the details of a case can take countless hours, but the best preparation will likely decide who wins. And in our business, winning is freedom.
  3. Federal criminal case experience is a huge benefit in ANY criminal case. Let’s say you are charged in Idaho state court with a possession of a controlled substance. You were stopped as you drove home around midnight, and the officer said you were speeding. Was there actually a legal basis for the stop? Were proper procedures followed to insure your rights were protected against an unreasonable search? Should your lawyer file a motion to suppress? How will the case be framed? (Coming soon – a discussion of case framing to win). Having a lawyer who has federal criminal law experience will greatly assist in deciding issues related to your case.

I mentioned the Criminal Justice Act above. CJA lawyers are selected and appointed by the federal courts to represent indigent defendants in conflict cases. CJA lawyers have ongoing training and yearly requirements to stay on the panel, assuring their clients they will have federal criminal case experience. That is a good thing. You want an experienced lawyer in your criminal case.

So if you are charged in a federal criminal case and you cannot afford to hire a lawyer, be assured that the FDSI will provide a great team to represent you. If they can’t do so because of a potential conflict, the Court may appoint a CJA lawyer to lead your defense. That lawyer will have federal criminal case experience and training that will benefit you greatly.

As for me, it’s back work doing what I love. Courtroom work. Jury trials. Engaging with nice folks facing tough situations in their lives. Lawyering.

 

Idaho is a Constitutional Carry state, which means that we have the ability to carry a firearm without government restriction. No license or training needed, just you and your firearm are enough. If you need permission to carry a gun, it is a privilege and not a right. The Second Amendment gives us the right to bear arms. So the term – Constitutional Carry is used to describe that right.

Idaho law permits Idaho residents over the age of 18 without disqualifications to carry a firearm without a license. This makes about 75% of Idaho’s residents eligible to open carry. Disqualifications are defined in the statute and are fairly intuitive: convicted felons, fugitives, etc.

Critics are concerned with the number of accessible guns in the general public. They argue that more guns on hips and in purses create a higher likelihood of violence. That argument misses the point – the right to carry a firearm is not a right that must be restricted simply out of fear. It may actually create a higher level of accountability among gun owners because no one really knows who has a gun. Constitutional Carry states may have significantly lower violent acts compared to states that that restrict the right to carry. Criminalizing concealed carry does not stop criminals from carrying. It only restricts law-abiding citizens from protecting themselves.

Recently, there was a shooting at a church in Texas. A man pulled a gun out at a church and shot two victims. The incident ended in six-seconds because of a church member that was armed. He stopped a bad actor from causing further harm because he was ready to protect society. The more this message is sent to bad actors, the safer society is.

Idaho law allows Idaho Residents to conceal carry without a license, but what about nonresidents? Nonresidents are not allowed to conceal carry in the state of Idaho without a concealed weapons license from their state. They must also have their concealed weapons permit on them at all times that they are carrying a concealed weapon. Idaho accepts ALL out of state concealed weapons licenses. This will change in July when nonresidents will be able to carry concealed without a license.

Since Idaho Residents do not need a license to carry in the state, what is the point of having one? It can be helpful for travel because other states recognize the Idaho license and allow licensed Idahoans to carry in those states. Here is a breakdown of what you need to know for traveling around the country:

Idaho residents with a basic concealed weapons license can carry in Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.

These states require an Idaho Enhanced license to carry in their state: Alaska, Arizona, Colorado, Delaware, Louisiana, Minnesota, Nevada, New Mexico, Pennsylvania, South Carolina, Virginia, Washington, and Wisconsin.

   Last week I tried an aggravated assault with deadly weapon (AR15) case that resulted in those two beautiful words: NOT GUILTY. The case involved a former military service member accused of using his firearm to threaten ten neighborhood folks who had gone to his home on the 4th of July to “get an explanation” for his having run over their fireworks bucket. The case sounded more like an angry mob than friendly neighborhood dispute. Tempers had flared and in the end, our client responded with his gun, standing between the crowd of 10 or more adults and our client’s young wife. Theory here – defense of himself and his wife.

The trial testimony featured 10 angry witnesses, each of whom had seen the gun, insisted it was pointed in their direction and said he or she was afraid. One witness testified he had told our client’s wife he did not want to live in a neighborhood with her husband. I am sure this case escalated and people were afraid, but the jury considered all the evidence and acquitted our client.

Here’s what I learned or confirmed from prior trials like this one:

First, self-defense and defense of another is still alive and well. We had the benefit of our jury instructions that use the term “stand your ground” and focus the attention of the jurors on what a reasonable person “may” have believed about the situation he or she faced. Our client and his wife insisted that the gun was never pointed at anyone. The state’s witnesses said the opposite. In the end, the proof never established this beyond a reasonable doubt, but even if it had, self-defense or defense of another “justifies” or “legalizes” the assault. The jurors favored the defense, likely because they understood the requirements as instructed by the judge.

Second, self-defense cases are still very difficult to win as a defendant. The state argued that use or display of a firearm was not necessary and was unreasonable. That argument can be appealing, but it misses the point. Instead of looking back with 20-20 hindsight, the law requires analysis of the situation from the view of the defendant at the time of the incident. Viewed from his perspective, the decision to get the gun seemed reasonable, no shots were fired, and the folks dispursed to call the police.

Third, cases are won, or at least influenced greatly, by the impressions created in the trial. Sure, facts are important, but equally important in my view is the story told by the players and witnesses. The story creates impressions of the players. Jurors remember their impressions as they decide guilt or innocence. So, when a witness says that he or she went to “keep the peace” or “prevent a fight” from breaking out, the impression created is that the angry neighbors could reasonably be viewed as an “angry mob” by the defendant. One witness actually testified on behalf of the state using the term “mob mentality.” Far from reasonable, the impression created by the witnesses and testimony was that the neighbors had themselves crossed from reason to threat.

Just my thoughts after the fact for your consideration. Facing a trial? Liberty on the line? Think about the impressions you need to make to win your case.