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

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

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

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

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

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

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

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

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

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

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