Idaho Criminal Defense Blog

Idaho Criminal Defense Blog

Information and Insight on Criminal Law and Civil Rights

Start with Bias and Prejudice – your story must deal with these or you lose!

Impartiality is a myth. So the idea that you will start with an impartial jury or fact finder (maybe a Judge) misses the mark. We all have inherent bias and prejudice that colors our decision making. All of us.

Let’s start with a simple example involving cars. I have a bias (or preference) in favor of Westfalia vans and Porsche 911s. The two are polar opposites – sexy German sports car and utilitarian German fun wagon. If I had both in my garage I would be a happy camper. Over time I have had both but modern automobiles have taken my eyes away from each. So too the two grandkids I cart around daily.

But I am attracted to people who share similar interests. If you own a Sprinter you know what I am talking about. There are FB groups dedicated to owning, maintaining and building out Sprinters, and generally, when I see another Sprinter owner we talk. I am drawn toward the owner and trust that he or she speaks my language.

Or maybe you own a Mazda Miata – there are throngs of folks racing those each weekend. Their owners tend to do the same dance – they are part of a group, a club, a tribe. And that impacts how they view other folks.

Our individual bias impacts how we perceive each other. This is especially true when considering a potential fact finder.

In opposite, I have never thought much of folks who believed a 911 or its modern equivalent held a driver who was a jerk. You know the old joke – what’s the difference between a Porsche and a porcupine? The pricks are on the outside of the porcupine. But that simply illustrates the misguided prejudice of some folks! There are jerks driving Porsches and pretty much every other vehicle, but not all Porsche drivers are jerks.

Now, what about more serious issues in jury selection? How will potential factfinders react to the appearance of a defendant? How about a young Latino defendant with the number 13 on his forehead? Consider a young man standing trial with a shaved head and an Iron Cross tattoo showing out of his unbuttoned shirt. Or how about a fifty-something skin and bones female defendant who looks like she has spent the past years sucking on a meth pipe? Or the sixty-something preacher who stands accused of possessing child pornography?

Remember that first impression talk – “you never get a second chance to make a first impression.” Our potential juror may see the defendant and hear the charges and form an opinion based on a bias or prejudice that is inherent in his or her mind. Latinos with a number “13” likely conjure up the notion of a Mexican Mafia or gang member. A shaved head and Iron Cross – perhaps a motorcycle club (or gang) member. Think Hells Angels. Think big guys and wild parties and guns and drugs. Skin and bones fifty-year-old ? Well, you get the idea. Meth head. Preacher accused of child porn? Guilty! And that can happen (is likely to happen) from that first impression. Our individual bias (generally in favor of “safe” people who look like we look) and tendency to pre-judge others who are different (prejudice) causes us to react, even if we try to resist.

So your case and its story has to start here – with your client and the likely perceptions of the fact finder. I like to focus on these things:

First question – would I want to take my client home to dinner? This is a safety question. Can I trust him with my family? Will he or she be met with skepticism by my bride of nearly 43 years? Will my 3-year-old granddaughter run to hug or hide? Sound too simplistic? I am a simple country lawyer. But that inherent bias in favor of safe-appearing people is present in the home and in the courtroom. Take a good look at your client. What is your first reaction? If you wouldn’t feel safe with him or her, neither will the jurors.

Second question – who is my decision maker and can I calculate his or her inherent bias or prejudice? A couple years ago I tried a sexual assault case at an Air Force Base. I speak military, although Air Force represents a bit more sophistication than my Army cohorts. Still, I understood that the court members (the decisionmakers) would have military bearing and expect the same from my client. They would have a tendency to prejudge him because the system provides escape routes out of the courts-martial process. If he was in court, they would likely reason that he was guilty.  On the other hand, they would look at the civilian “victim” making the claims differently than they would a military member. Could I craft a story from the facts of the case that would answer their inherent bias and prejudices? In particular, would NCOs on the panel judge my client more harshly when sitting in judgment with commissioned officers? Would the decisionmaker be able to follow the law and get past their first impression?

Third question – if your gut says run, should you do so or fight? In other words, can you win in view of your client, as well as the expected inherent bias and prejudice within the likely fact finders? The gut check is tough because it always causes me to be brutally honest with myself and with my client. I need to explore the client’s responses to the problems posed and see if he or she has a way around the problems. If not – then maybe we should be exploring another way out of the case.

And those discussions are brutal. I hate the process but I embrace it, suffering and honesty and all the worts! Next up – how can we craft that best version of the facts for our client?

My three-year-old granddaughter awaits with a box that says “Hungry Hippos!” I am biased in her favor, so I leave further discussion to another day.

On Slate Now – Standoff – Ruby Ridge Revisited

Slate Magazine has done a great job recounting what happened at Ruby Ridge in its Podcast Standoff. Listening now and remembering how life can turn in an instant. Want the inside story? Ron Howen, Gerry Spence and others tell the story from their viewpoint. Episode 4 tells how the FBI held back the most important evidence in the case, Lon Horiuchi’s drawing of what he saw when he fired the shot that killed Vicki Weaver. I spent a couple hours being interviewed last summer and it brought back so many memories. You can start the series here, and hear my story in Episode 4. The picture below was taken when David Nevin and I went to Ruby Ridge after the trial Sam Donaldson from ABC.

There’s A Problem With DNA Testing At Crime Labs – They Often Get It Wrong.

Boise State University Professor Dr. Greg Hampikian is a  Biologist whose work has identified persons wrongly accused and convicted of crimes. He is regarded as one of the foremost forensic DNA experts in the United States and beyond. He is the founder of the Idaho Innocence Project, which, along with other state Innocence Projects, has helped to clear hundreds of persons wrongly convicted. Those convictions have often been based on faulty science and false confessions. So when he tells us that DNA testing at crime labs is suspect and results may be misleading, we should pay attention.

Dr. Hampikian’s op-ed in the New York Times yesterday should sound a bell for any person who faces criminal charges supported by DNA test results. Dr. Hampikian reports that in a recent reliability study, 74 out of 108 crime laboratories implicated an innocent person in a hypothetical bank robbery.

Dr. Hampikian cites a study by the National Institute of Standards and Testing. Here’s what he says happened:

“Researchers from the National Institute of Standards and Technology gave the same DNA mixture to about 105 American crime laboratories and three Canadian labs and asked them to compare it with DNA from three suspects from a mock bank robbery.

The first two suspects’ DNA was part of the mixture, and most labs correctly matched their DNA to the evidence. However, 74 labs wrongly said the sample included DNA evidence from the third suspect, an ‘innocent person’ who should have been cleared of the hypothetical felony.”

Dr. Hampikian also reports on the interpretation of DNA mixtures from three or more persons, and the statistics generated by laboratories relied upon to explain the likelihood of an innocent match. He reports that laboratories “analyzing the same evidence calculated vastly different statistics. Among 108 crime labs in the study, the match statistics varied over 100 trillion-fold.”

Those statistics are critical in the defense of a person whose freedom depends on explaining an apparent DNA match. Prosecutors typically rely on PhD scientists to explain the likelihood the significance of finding the defendant’s DNA at the scene of a crime. Those witnesses inevitably offer their expert opinion that the the chances of a sample found at the scene of the crime (blood for example) having come from someone other than the defendant is a virtual statistical impossibility. Consider some crazy number – like the chance that blood came from someone other than the defendant is on the order of 1 in 100 million. That huge statistical improbability almost certainly seals the defendant’s conviction, unless there is another explanation. If the statistics generated by different labs vary by over 100 trillion-fold, the value of the statistical evidence may be suspect.

The authors of the study did not immediately publish their work in peer reviewed journals or sound an alarm that shoddy lab work poses a huge risk for criminal defendants. They apparently kept quiet, and when they finally did publish the results, they seemingly tried to tinker with its use by the lawyers who face such evidence in court.

So if the science is accurate, and by now we know it is, but the laboratories are not handling the evidence in ways to get reliable results, people will be wrongly convicted. Hampikian points to just such a case in Nevada, where Dwayne Jackson faced a home invasion and kidnapping charge when he was 18 years old. The state’s evidence included a DNA match tying him to the scene. Told he would spend life in prison if he went to trial, he plead guilty to reduced charges in 2003, only to later be freed because the crime laboratory had accidentally switched his sample with another suspect’s tube. He spent nearly four years in prison before the lab admitted they got it wrong.

Dr. Hampikian points to computer programs that can assist in excluding innocent profiles, thereby providing a means of correcting past errors and preventing errors in the future. His work reviewing cases using such software has already identified innocent persons wrongly convicted in New Mexico, Indiana and Montana, and a new suspect in a 23 year old murder.

If you are a lawyer facing DNA evidence, get some help. Your client may not be guilty, even if some lab says otherwise. Be prepared and fight on.

There’s a problem if you buy CBD oil in Idaho – it may be a crime.

Yesterday I posted about Idaho’s tough marijuana laws.  Is Idaho any closer to legalizing marijuana-based products? How about cannabidiol (CBD) oil? I don’t think so.

It seems like every week I receive an email solicitation offering to sell me CBD oil, ordered online and delivered by mail to my home or office.  Each such offering indicates that CBD oil is a lawful product in all states, including Idaho. I am not so certain.

Against that marketing is this fact: Idaho is a conservative state that has long resisted the legalization of marijuana and marijuana-related products. If I buy CBD oil and it is not lawful to possess in Idaho, could I be prosecuted?

CBD is derived from hemp, which is a plant “of the genus cannabis,” as is marijuana. That fact is important because Idaho law defines marijuana based on the plant genus. If it is in the genus cannabis, it is presumptively marijuana, possession of which is illegal. CBD, however, contains little or no THC, the psychoactive agent in marijuana that produces a “high.” That presence of some trace amount of THC can be a deal ender in Idaho because it seemingly makes the product illegal to possess.

Why then is the Idaho legislature and its governor against legalizing a THC free product that reportedly can treat medical conditions?

In 2018 our legislature again considered a bill to legalize CBD oil for medical purposes. The bill would only have permitted the use of CBD dispensed by certified medical practitioners, and for specific treatments. Advocates argue that CBD oil has successfully been used to treat epilepsy and seizure-related illnesses. I seem to remember the mother of a young child who claimed that only CBD oil had relieved the seizures suffered by her son. Proponents claim it also relieves stress, operates as a safe pain controller, reduces anxiety and improves skin quality.

The Health and Welfare committee shelved the 2018 bill after a heated discussion over the legalization of CBD oil.  Idaho’s prosecutors and the office on drug policy are reportedly opposed to flirting with anything that sounds like legalizing marijuana.

In 2015 the legislature passed a bill legalizing CBD oil use for children with seizure disorders, but Governor Otter vetoed the bill out of fear of compromising the state’s drug laws. If elected, his Republican successor Brad Little is likely to have a similar mindset.

Maybe it’s just my age, but some of the claims made by CBD oil producers seem aimed at baby boomers like me. Our knees ache, hips creek, skin is age marked and our bodies occasionally act like we are getting old. We appear to be a target audience for anything that makes us feel younger again. So is it real or is it snake oil? It may not matter because CBD seems forever linked to marijuana.

What marijuana products are legal in Idaho? According to comments made by the Attorney General, there are two requirements: the product must come from a mature stalk and have no THC, not even a trace amount.

Don’t get me wrong, I don’t know if CBD oil produces the results its makers and users advance. Then again, I don’t know if the medications prescribed for bipolar disorder, schizophrenia, headaches, warts or heart disease are actually effective. Some of the medications work some of the time for some people, but not others. This much I do know – marijuana laws may be changing around us but Idaho will not likely move soon toward legalizing CBD or any other marijuana product. Recall the harsh penalties for the possession of marijuana in Idaho. Until our state laws change, the safest bet to avoid potential criminal charges is to avoid messing with marijuana products, including CBD. Internet CBD sales do not likely violate federal law (more on this coming soon), but our state laws still pose a trap that could lead to criminal charges.

Idaho’s Marijuana Laws Are Tough!

Idaho’s Marijuana Laws Are Tough – Maybe Even Unfair!

I spent time yesterday driving to and from a rural courthouse in Western Idaho for a hearing on a marijuana case. The charge – felony possession of marijuana – arises out of a car having been stopped near the Oregon border during early morning hours for traveling too slowly. That’s right, too slowly. Officers claim they smelled marijuana, and the Oregon driver admitted the illegal weed was on board. As the amount exceeded 3 ounces, the client faced a felony, with the possibility of five years in prison and a $10,000 fine.

In Idaho, marijuana is still a big deal, even if our neighbors in Oregon and Washington have chosen another path.

If you are in possession of any amount of marijuana in Idaho you face possible criminal charges ranging from simple possession (less than 3 ounces is a misdemeanor) to trafficking (25 – 100 pounds or over 100 plants results in a mandatory 5 years in prison and $15,000 fine).  Stop for a moment and think about that – a mandatory minimum sentence of 5 years in prison. Not jail. Prison.

And then there are the federal laws relating to marijuana possession that remain in effect regardless of state laws. Those federal laws can also result in a prison sentence. And a wide variety of other related laws in Idaho provide penalties for marijuana cultivation, concentrates, driving while impaired and possession of drug paraphernalia.  If you are looking for a reference page to learn more about our state’s marijuana laws, I suggest you check out

If you are charged with a marijuana crime in Idaho, you must treat it seriously. Talk to a lawyer about the possibilities.

That Medical Marijuana Card Can Prevent You From Buying A Gun!

Image result for gun and marijuana

In 2016 the Ninth Circuit Court of Appeals ruled in Wilson v. Lynch (9th Cir. Case No. 14-15799) that medical marijuana cardholders are prohibited from purchasing firearms based on federal regulations.  The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent an Open Letter to gun dealers in 2011 stating that, “If you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have ‘reasonable cause to believe’ that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person.”

Wilson, a Nevada resident with a state-issued medical marijuana card, went to buy a firearm in her small town just days after the ATF letter was received by her local gun dealer. The owner knew that she was a medical marijuana card holder and refused to sell her a firearm based on the ATF regulation. She filed suit alleging that the ATF rule violated her First, Second, and Fifth Amendment rights. The case was dismissed by lower courts (twice) and on her second appeal, the Ninth Circuit affirmed the lower court’s dismissal of the case.

Wilson’s Second Amendment rights were not violated because the letter and ATF regulation does not outlaw possession, only the purchase of firearms while in possession of a medical marijuana card. State issued medical marijuana cards are not federally recognized, and users of the Schedule 1 controlled substance (marijuana) are classified federally as “unlawful drug users.”

The government says that drug users, specifically marijuana users, are more likely to commit acts of violence. Is there empirical research to support this finding? No, but the government referenced a discussion of drug use and violence in a prior case (U.S. v. Carter, 750 F.3d 462 (4th Cir. 2014) that provides a “reasonable relationship and common sense” between marijuana use and violence. This, the court concludes, supports the state’s interest in controlling who may legally buy a firearm.

Wait a minute! Are marijuana users really more likely to resort to violence? I thought they were more likely to resort to brownies and Cheetos and other munchie ending foods! But violence? Among the medical M-card holding crew? Sounds like a stretch to me, and that is likely one reason I do not sit on any circuit (or other) court.

Wilson’s other constitutional arguments went nowhere. she argued that she does not use marijuana, but has the card for political purposes to support the legalization of marijuana, which is an act of free speech. The court held that the government’s firearm purchase restriction does not violate her First Amendment right. She has many other methods to vocalize her support for the legalization of marijuana and purchasing a firearm is not a “communicative” method. So too the fifth amendment claim – there is no constitutional right to hold the card and buy a gun simultaneously.

To exercise her Second Amendment rights Wilson could forfeit her card and lawfully purchase a firearm, or she could have purchased a firearm before obtaining the card and be in possession of a firearm. The federal government’s interest in regulating firearm sales, according to the 9th, outweighs her right to purchase a gun.

So there you have it. If you have a medical marijuana card, you can be prohibited from purchasing a gun. If you have a gun already, apparently not an issue. Sometimes the laws make sense and other times… not so much!



“She said she was 19. How can I be charged with RAPE?”

I frequently get this question – “how can they charge me with rape? She said she was 19!” The answer is simple, a representation of the age of an apparently consenting person means nothing!

Bupkis! Nada! Absolutely nothing! What matters is the age of the person – that is – the ACTUAL age.

The law does not care that some young woman or man tells you a bold-faced lie. It is not a defense to a charge of sexual misconduct – including rape. Whenever the issue of age comes up there we want to believe the person with whom we want to “be.” Why would they lie? Maybe you have an idea that they are lying but you ignore that little bell ringing a warning in the back of your mind because hormones are raging – and well you get the picture.

If you hear that little bell, STOP!

It is illegal in Idaho to have sexual contact with a minor regardless of consent. The only real exception to that rule involves a consenting partner who is 16 or 17 and another consenting person who is not more than three years older. If she (the most common circumstance / or he) is 17 and you are 20, you’re somewhat safe. Even then, however, what seemed like consent at the time may change into “I never said yes” after the younger person’s parents get involved.

Statutory rape is a general intent crime, so a mistake of fact or misunderstandings as to age does not provide a defense. What matters is that the act occurred. It is better to exercise caution on the side of not doing anything. A lie as to her age is not a defense.

Find out that potential partner’s actual age before things get out of hand. Consider reviewing his or her driver’s license. And if you are over 20, do not get sexually involved with a minor. Period! The risks associated with a charged sexual offense are simply too high.

Stand Your Ground – when, where and who?

Among the changes to Idaho law taking effect on July 1, 2018, is an important clarification of when you can and cannot use deadly force to defend yourself, others or perhaps, your “habitation.”  The newest version of Idaho Code 18-4009 lays out the places and people you have a right to defend with deadly force. Previously Idaho focused on one’s home as a place to protect with deadly force. The law now spells out your right to use deadly force – if necessary – to your place of work and your occupied vehicle.

Arguably, if someone walks up to your vehicle holding a handgun and pointing it at you while you’re sitting in 5 o’clock traffic, demonstrating that he or she is about to use it, you may be entitled to use deadly force to defend yourself and the vehicle’s occupants. Wasn’t this the law before the change? I think so and the cases in Idaho support the idea behind self-defense generally: if you are in fear for your life, and under imminent attack, you may use reasonable force to defend yourself and others. The only issue is whether your use of deadly force was reasonable.

A successful self-defense claim is measured by what a reasonable person in that same or similar situation would have done. The fact that someone is angrily walking up to your vehicle is not, by itself, a reason to use deadly force. Nor has the law changed to permit the use of deadly force under every situation. Before deadly force could be used, there must be some act that demonstrates an intent on the part of an attacker to commit a felony or do great bodily harm.

In a case I defended ten years ago, my client was in a logging truck when another truck driver blocked his way on a remote mountain road. The driver walked toward my client with a chain in his hand and yelled he was going to “settle the score” once and for all. They had been in “disagreement” over whether my client owed him some money. Snarling, screaming and running toward my client, who sat in his truck with a pistol on the passenger seat, the other driver climbed up on the running boards and hit him through the open window. My client grabbed the gun and fired one shot – successfully defending his own life. He was charged with murder and faced a trial for his use of deadly force. When I argued the case to the jury I told them that I would never have waited for the other driver to climb up on the running boards, and I would have shot him sooner. The jury apparently agreed, and it found my client “NOT GUILTY.”

Still, a trial is a trial. It is still an ordeal, emotionally and financially. The fact that the law seemingly permits something does not make it easy to assert that right!

Does “Stand Your Ground” means that if you are standing on a sidewalk and someone is running in your general direction with what appears to be a weapon, you can justifiably kill them? Absolutely not.  The law requires more. In particular, the law requires that the person running your way represents an imminent threat of great bodily harm or is in about to commit a felony. Even then, your actions will be judged by what a reasonable person in your shoes would do.

So – is this really a change? In some respects, it is. It adds your vehicle and place of employment as “places” that can be protected. Still, don’t get the impression the law invites us to simply shoot first and ask questions later. Self-defense still requires that you believe the use of deadly force is necessary and that a reasonable person would have agreed.

Idaho Self Defense Law Clarified – Stand Your Ground

Idaho’s law protecting a person acting in self-defense gets clarified by the passage of Senate Bill 1313 – which goes into effect July 1st. The real impact is to consolidate and codify existing law to clearly protect the inherent right of a person to defend themselves and others. Idaho law permits a law-abiding citizen to stand their ground and protect themselves and families anywhere they have a right to be. SB 1313 also protects the right of a person to defend against intruders who enter the defender’s home or business unlawfully or by force, without having to demonstrate that he or she reasonably feared the intruder was about to cause death or great bodily harm. The entry by unlawful force establishes that the defender’s fear of serious injury was reasonable, so the use of self-defense was likewise reasonable.

There is a lot of debate about restrictions on gun ownership and use across the land, but Idaho remains committed to the notion that self-defense, including the use of firearms and deadly force, is a reasonable response to an unlawful attack on you or your family. The law doesn’t really change anything, but it clarifies the right to stand your ground in the face of an intrusion or attack on you or your family. The law had the backing of law enforcement and prosecutors.

Federal Prisons Are A Terrible Place to Live and An Even Worse Place To Wait For Death!

I just finished reading a news story in the NY Times titled “Frail, Old and Dying, but Their Only Way Out of Prison Is In A Coffin.” It follows reporting by The Marshall Project on the same topic. The bottom line, accurately told by both is this: there are far too many old prisoners who are dying in federal lockup because too many bureaucrats won’t release them. They like rules. We see them in criminal law – folks who cannot find any good in anybody confined for a crime.

The reports indicate too often old prisoners are not granted compassionate release, even when death is imminent, based on the severity of their offense or criminal history. How often? Sixty percent of the time. Imagine an eighty-seven-year-old man convicted of tax fraud with less than two years to serve on his sentence – Irwin Schiff. After trying to get his father released for two years, Andrew Schiff arrived at a federal prison to say goodbye to his father, who was by then unconscious and on a respirator, chained to his bed and watched by a guard twenty-four hours a day. Andrew told the NY Times, “There is no humanity in there.” He is right.

Aging prisoners are a problem, and with our ever-increasing number of inmates and ever-increasing length of sentences, the problem is going to simply get worse. Here are three things to remember if you are facing a federal trial and the possibility of a federal prison sentence.

First – the Feds play to keep. Defendants are found guilty or plead guilty in federal court 98.5% of the time. Fighting the feds requires faith in your lawyer, money to pay for the fight, and a commitment to get the case ready for trial. Preparation wins cases, especially federal cases. That takes time and time is money.

Second – If you are guilty, tell your lawyer. I know this sounds crazy but sometimes the best we can do for you is damage control. Getting you in and out as quickly as possible may be your best move, but your best opportunity to do that means you must be honest up front.

Third – Big sentences are the norm in certain drug cases and white-collar cases. It is important to understand the law here and keep in mind the potential factors that will increase the Sentencing Guidelines range. For example, in a fraud case, the amount of loss is critical because it is the primary determiner of the length of sentence.

One final thought on this grim subject – United States v. Steinan 11th Circuit 2017 securities fraud case, provides a look at loss calculation for purposes of the sentencing guidelines range.  As menti0ned above, the bigger the loss, the longer the sentencing range – sometimes long enough to keep you in prison for the rest of your earthly years. In Stein, the Court of Appeals rejected the Government’s calculation of loss based what it termed “the buyer’s only” method because it failed to take into account reliance and proximate causation. Stein’s guidelines range had increased by 20 points based on the calculation of a $50 to $100 million loss. Intervening causes of loss, such as a declining market generally, must be considered on that issue. The Government had relied on actual loss, not intended loss, but its proof did not include evidence other than one investor who claimed he had been defrauded in reliance on the defendant’s fraud. The guidelines range in that case put Mr. Stein’s range at life in prison. He had been sentenced to 204 months – that’s right – 17 years.

If your case involves fraud – securities fraud, tax fraud, wire fraud – consult Stein and subsequent cases for potential arguments regarding loss calculations. It may be critical to keeping your sentencing level in check and avoiding death in the big house.