image line

Idaho’s Supremes have decided, in a 3 – 2 decision, that the line on the side of the road is actually part of the lane, so an officer unreasonably stopped a driver because he had driven onto that line twice. That decision results in suppression of the evidence needed by the State for its DUI case.

The case goes back
Continue Reading

 From the Idaho Statesman tonight: 

"Four years ago, a report from the National Legal Aid and Defender Association found that Idaho is violating its Sixth Amendment obligations to defendants. Public defenders across the state were being given too many cases, and some defendants weren’t meeting their attorneys until they were in the courtroom. The report also said that defendants


Continue Reading

 SGT Bowe Bergdahl’s “disappearance” is not necessarily desertion.

Once upon a time I served as an Army JAG officer – a Trial Defense Services lawyer – defending the men and women of the 4th Infantry Division at Ft. Carson against criminal charges. Viet Nam was over, but there were traces of its wrath daily in the halls of the building in which we were housed. A service member who had served honorably in Viet Nam, but “left” a little early on arrival to the States without having “processed out.” Or the occasional soldier who had never reported for that flight to "Namland," and somehow evaded detection for a dozen years or so.

The first question for the Staff Judge Advocate in each case was whether a crime had been committed and if so, which crime?.

Did the soldier go AWOL (absent without leave) or was he or she a deserter? Does it really matter?

The Convening Authority (a General who serves as the grand decision maker in these matters) in Bowe Bergdahl’s case will have much to weigh when it comes to making that call. He may decide that SGT Bergdahl deserves the benefit of the doubt, and simply permit him to be discharged.

From my experience as a military lawyer, such decisions are generally made after carefully considering the soldier’s service, as well as the circumstances surrounding his or her “disappearance” from the unit. Add to that the fact that SGT Bergdahl’s release was negotiated on behalf of the United States with full knowledge that he was reported to have walked away from his unit.

Even so, not every person who walks away is a deserter. Desertion is a separate offense that requires proof of an intention to permanently remain away or avoid hazardous duty. The military treats desertion very seriously – and it can result in the death penalty during wartime. AWOL is not nearly as serious, and there are administrative, non-judicial means of punishing that conduct which might be more appropriate here.

But did SGT Bergdahl intend to remain away? That question is more difficult to answer, and the process used by the military to investigate such a case is similar to a grand jury proceeding, but better. SGT Bergdahl and his lawyers will be present to hear the evidence to be considered by the investigating officer and they can cross-examine the witnesses. He can have and needs the best lawyers he can get. And those lawyers should ideally include both military and civilian counsel. After all – at some level this is a political case that may be pursued more out of a feeling we traded away five really bad guys for one possible deserter than because we believe SGT Bergdahl committed a crime.

I trust the military justice system. I like the checks and balances within the system and I like the way it tries to avoid politics. Still, SGT Bergdahl’s case is political. Remember that Rose Garden press conference with the President and Bowe’s parents? Politics. 

We always say nobody is guilty until proven so, but the popular presumption echoed by talking heads across the cable news outlets is that he ran away from his unit. The presumption of innocence will have to fight for space, and that will take help. 

Let’s just try to reserve judgment for now and find joy that he is back in the states.

 


Continue Reading

 

Back at it for the new year and I couldn’t help but pass along a link to a news article today concerning wire fraud and the sentence imposed by Judge Winmill. Check the story here.

Apparently the defendant in the case had wired money from his employer’s bank account to pay his personal mortgage and other stuff. Taking money from someone else to pay your debts never works out well in the long run. While we may diverge on some questions of law – there is universal agreement that theft is morally wrong – and the law makes it a felony. The Feds take a very dim view of this!

The defendant in the case was sentenced to three years in federal prison and ordered to pay $607K in restitution. That sounds like a lot of mortgage payments and personal stuff that he must now account for! But my point here is simple – any federal felony is likely to result in serious consequences, including federal prison and big fines or restitution. And there is no parole in the federal system – if you get a three year sentence you serve three years, less any "good time" credit you earn.

So get help immediately if you are contacted by authorities about any claim you have taken money that does not belong to you. AND DO NOT TALK TO INVESTIGATORS without FIRST having talked to a lawyer. Whatever you tell the investigators will limit your options going forward. We frequently have folks who contact us and claim that they did not steal anything, but they have said things to investigators that make their claim of innocence look like a lie. You can’t outsmart or outplay the investigator – so wait to explain your side until you have a lawyer.

And then there is the obvious: do not steal!

 


Continue Reading

 The news tonight declares that Kennedy cousin Michael Skakel has won a new trial because his criminal defense lawyer did not do enough to provide an effective defense. Robert F. Kennedy was his uncle. Mr. Skakel was convicted of the murder of Martha Moxley in 1975. She was beaten to death with a golf club after she and friends attended


Continue Reading

 Just a quick thanks to the folks at the Idaho Statesman for their recent coverage of Peterson Lawyers – or "Dad and Daughter at Law." Click the link to see the article and learn more about us if you haven’t done so.

We really had a great time with their reporter, although those low, wide-angle shots don’t do much for me (or Courtney)!  Still, there is a point to all that jazz – I think that lawyers should focus on being problem solvers, not just advocates. Here’s the point, placing your case in the hands of twelve people is risky and frightening. So a solution that makes the best of a bad situation is often the best solution.

On the other hand, there is no substitute for experience. Any legal matter placed in the hands of someone with actual trial time stands a better chance of success. 

If you have a legal matter and need some help, give us a call.

 


Continue Reading

 

For years we have been happy to be recognized for our work by inclusion in the annual edition of Best Lawyers in America. This collaboration of U.S. News & World Reports, the New York Times, Washington Post and others selects lawyers and law firms that are leaders in their areas of practice.

For 2013 that recognition went a little further in our primary practice area as criminal defense Lawyer of the Year in Boise. 

For 2014 we were again recognized by Best Lawyers in America for our representation in the criminal defense area. 

Thanks Best Lawyers – and thanks to our clients, lawyer friends and foes, and the occasional jurist who provided their input. And thanks Courtney and Patty for all you do to make it fun to be a lawyer.

 


Continue Reading

 You may recall that last summer, local politico John McGee was ordered to spend at least 44 days in jail before being eligible for either work release or the Sheriff’s Inmate Labor Detachment. This was not how the sentencing was expected to go. McGee had a plea agreement! A deal!

We lawyers warn our clients that the judge is not bound by the agreement but I have occasionally soft pedaled that truth. After all, a judge going beyond what the parties recommend is extremely rare. When that happens, there is usually a deafening silence followed by the "whiskey, tango, foxtrot" moment. 

It apparently happened that day last July. McGee was to be the beneficiary of a deal that was negotiated by the prosecutor and defense counsel. That deal called for McGee to do five (5) days in jail, not 44 and certainly not 88 as the court ordered. Mr. McGee actually served 44 days before his release, but that result depended upon the good graces of the court and the good actions of the former State Senator. 

Maybe Judge Cawthon had simply had enough of the McGee’s misdeeds, this time while on probation following the mother of all plea agreements for his plea to DUI in 2011. The Court said it was simply making McGee accountable to the same degree any other public servant should be accountable. McGee had promised to obey the law, at least until July when his probation would have ended. 

Actually, the take away here has nothing to do with the pratfalls of Mr. McGee. He has completed his service and done so with dignity. He didn’t go nuts or whine about that unexpected jail sentence.

Just remember this – the Judge is really NOT bound by the plea agreement. He may go above or below the anticipated sentence. Mr. McGee, the prosecutor and defense counsel all expected that Judge Cawthon would follow their recommendation. He didn’t, and McGee was cuffed and lugged away to begin his sentence while he and those around him could only wonder why it hadn’t gone as planned.

I had this happen to me and it hit me and my client hard. The deal called for my client to plead guilty to a felony in exchange for a recommended sentence of 3 years fixed and 5 years indeterminate. He pleaded guilty. The State recommended 3 fixed and 5 indeterminate. I argued my client was much misunderstood, but had done what needed to be done.

The Court imposed a 20 year sentence – 8 years fixed and 12 indeterminate. That was 8 years and four months ago. My client is now out, and he served his time honorably as evidenced by the fact that the parole commission sprung him before topping out at 20 years. But when he arrived in court that morning neither he nor I expected him to leave for an eight year prison term.

My point here is that even the best agreed upon sentencing recommendation may run into a wall. Judges, lawyers and defendants do not always play from the same sheet of music. When this one was over, Mr. McGee served his sentence honorably, and the Court may permitted him to leave jail at 44 days. And nothing here is intended to infer anything about the court or the lawyers. They simply saw it differently. Mr. McGee made decisions and he had to live with them. The same is true in every case.

SuperLawyers not withstanding – there are no guarantees in most plea agreements. 

So what about that plea bargain they have offered you? Or your loved one? Will the judge follow the agreement or not? Find out what you can do to make it more likely you get the benefit of the bargain by checking other posts in this blog on sentencing. You can also start by reading the post just prior to this one on humility!


Continue Reading

 The United States Army has announced that it will seek the death penalty in the murder trial for SSG Robert Bales. Bales is accused of killing 16 civilians in Afghanistan, 9 of which were children. In a news story published today, that writer points out that although 16  servicemen have been sentenced to death since 1986, none been executed since 1961. The case is particularly news worthy in the Northwest because Bales is being held at Joint Base Lewis-McChord, outside Tacoma, Washington.

I have not posted anything to this blog since October, in part because I was appointed lead counsel in a death penalty case in Canyon County about the middle of that month. For sixty days I worried about whether the county would in fact seek the death penalty. While prosecutors cogitated on the complexity of imposing the ultimate sanction, we did research and read reports and went to a seminar to "update" ourselves on all the issues. As I write this, and am headed today to see my client, the death penalty has been taken off the table. The case will go forward without the ax hanging over our client’s head. 

For that, I am thankful.

Every case, whether routine or extraordinary, presents unique challenges. Here are two tips for lawyers and clients when dealing with the stress of criminal trials:

First, get a good grip on the facts alleged by the prosecution.

Second, develop a good understanding of the legal theories in play.

A recent attempt to settle a drug case was made more difficult by the fact that the prosecutor "knew" my client had been involved with another defendant in a similar case.

"You know that he sold drugs to X," he told me as we tried to come to a favorable resolution instead of trying the case.

I did not "know" that to be true, and neither did the prosecutor. He assumed it was so, and X likely said it was, but that did not make it true. My client denied he had ever sold drugs to X, and that disputed "fact" made it nearly impossible to settle the matter. Sometimes the facts that the prosecutor alleges simply cannot be reconciled with your (or your client’s) position. When that occurs, and neither side will change positions, trials happen. 

I mentioned above the time required to "update" myself with respect to the death penalty. That article I linked to indicates that 9 of the 16 death penalty cases in the military system had been overturned on appeal. I personally have been co-counsel to three persons who had been sentenced to death at trial. I was not the trial lawyer in the case, but rather served as one of their lawyers in federal habeas cases. These cases are brought as a last resort to stop the execution.

In each case, and after years of work, all three of these clients ended up with a life sentence and avoided the death penalty. The real key in each case was my having teamed up with other lawyers who specialized in this type of matter. The learning curve was far too great for me to have handled the matters by myself, and I was fortunate to work with really bright lawyers who knew and understood the complexities of the law in the area.

My point is this – the law can be very complex in its application to particular facts. If you are facing a criminal charge you may generally understand the law, but that is not the same as really understanding the law’s application to your case. Get a lawyer who will spend the time to get a grip on that part of the case.

So back to work. I have thousands of pages of investigative reports to read and motions to file, and there are only four shopping days to Christmas. That assumes the world does not come to an end tomorrow. I am not betting on the Mayans. 

If you have a case and want to talk, give us a call. Courtney’s off to Chicago, Patty’s trying to balance the checkbook, and I may soon settle down for a long winter’s nap… but go ahead and call anyway. And enjoy the holidays!

 


Continue Reading

 

"Hey, isn’t that you in that article in Businessweek about the defense of Khalid Sheikh Mohammed."

Yes – that is me, but the story is about David Nevin, the "Velvit Shiv." The picture above adorns the story detailing our pal David Nevin’s current and past work. The photo is from another terrorism case – the US vs. Sami Al Hussayen, in which the Shiv, his partner Scott McKay and I are shown walking out of the courthouse after a jury acquitted our client.

Kind of nice to see the picture in Businessweek, and kind of surprising at the same time.

Here’s the thing from the article that I liked. Nevin is defending Khalid Sheikh Mohammed, self-proclaimed 911 mastermind. Why would anyone defend KSM? 

That’s the crux of being a criminal defense lawyer. We represent even the most despised because the judicial system relies on every person being able to find counsel. So Nevin is doing the same thing that John Adams did in representing the British soldiers in Boston. Morris Davis was the chief prosecutor at Guantanamo. He calls it like this:

“You have people questioning your patriotism or your commitment to the country because you’re defending the enemies of your country,” said Davis, who teaches at Howard University School of Law in Washington. “But if our system is going to work, we need people who are going to take on the unpopular cases and fight them hard. History looks back favorably.”

Local attorney Klaus Wiebe said it the way I believe it:

“To be a criminal-defense lawyer, you have to really have two attributes,” said Klaus Wiebe, the former public defender in Ada County, Idaho, for whom Nevin once worked. “You really have to be for the underdog. The power of the government is so extreme that your client is always the underdog. And you also have to be willing to get your ass kicked fairly regularly and not give up.”

 

#next_pages_container { width: 5px; hight: 5px; position: absolute; top: -100px; left: -100px; z-index: 2147483647 !important; }

Nevin will not go gently into that dark night and his client will have the best possible defense. I am proud to say that I have been there with him before and know how tough an advocate he is.
 
Twenty years ago this week, Nevin and I joined up with Gerry Spence to visit a tiny cabin on Ruby Ridge and defend two men accused of murder. It seems only fitting that Businessweek should feature Nevin’s work defending a man who is likely the most hated reminder of the attacks on 9/11.
 
The justice system depends on lawyers who are willing to handle impossible cases and despised clients. Without such lawyers, the system is a sham, and the results of proceedings in such a system would be meaningless. 
 
Charged with a crime? Need advice? Call us. Like our pal, we always defend.
 


Continue Reading