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 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 Army Will Seek Death Penalty in Bales Court-Martial

 

"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.”

 

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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 The “Velvet Shiv,” McKay and I are in Bloomberg Businessweek?

 We don’t usually report on cases that we are involved in, but our lawsuit against Scentsy has garnered questions and news coverage throughout the Northwest. Our client Eva Marosvari came up with an product line for Scentsy – they market this line as Scentsy Buddies. They asked her to develop the product and she did so. When the time came…

Continue Reading In the news: Peterson Lawyers join Gerry Spence’s firm in suit against Scentsy

 Dharun Ravi, 20, a student from New Jersey was recently found guilty by a jury in Middlesex County of bias intimidation, invasion of privacy, and hindering prosecution for using his laptop to secretly record and broadcast an intimate encounter between his Rutgers roommate, Tyler Clementi, and another man.

Clementi later committed suicide by jumping off the George Washington Bridge…

Continue Reading Sentence handed down in New Jersey cyber bullying case questioned by both sides

The Supreme Court recently heard arguments surrounding two new cases up for review. Both involved the question of just how severe a penalty imposed on a juvenile offender must be in order to declared unconstitutionally cruel and unusual.

The first case, Miller v. Alabama, involved a 14-year-old in Alabama who beat an older man to death and subsequently burned his house down. Evan Miller, the teen, and a friend stole a collection of baseball cards and $300 from a neighbor. They attacked the man with a baseball bat, and killed him when they set fire to his home. The second case, Jackson v. Hobbs, involved another 14-year-old boy in Arkansas who, along with two older boys, tried to rob a video store in 1999. One of the older boys involved in the robbery shot and killed the store clerk as he was going to call the police. Both Mr. Miller and Mr. Jackson received mandatory sentences of life without parole for murder.

Proponents for harsh penalties point to the “sanctity of life” as the reason a juvenile should be sentenced harshly for crimes involving killings. There age should not be an excuse for punishment given the severity of their crimes. However, in oral arguments, Justice Ginsburg turned the argument around, noting that the same interest in the sanctity of an individual’s life could be used as justification for not severely punishing young offenders. By imposing a life sentence without the possibility on a 14-year-old, the state has essentially thrown away that person’s life.

Those opposed to meting out such harsh sentences believe that teenagers are immature and should be given a more lenient punishment because of that inexperience. While they acknowledge a life sentence is appropriate in such heinous situations, they believe that tacking away even the hope of parole is a step too far for such young criminals. Proponents of harsh punishment worry that teens have less incentive to commit such crimes in the future if they know that all they have to do is claim immaturity when they’re caught.

The Court weighed several possibilities when hearing the case and they include the following options:

·              Prohibiting life without parole sentences for any minor under the age of 15.

·              Prohibiting life without parole sentences for anyone under the age of 18.

·              Ban life without parole sentences for defendants who only acted as accomplices to a crime.

·        Bar mandatory sentences, relying on the discretion of the particular judge to consider all the facts and   circumstances of the case before reaching a decision. 

Headed to trial? Got a case that you want to talk about? Call our experienced Idaho criminal defense lawyers today at (208) 342-4633.

 

Continue Reading Supreme Court weighs question of cruel and unusual punishment for teens

 The news today in the Statesman got it right – Zachary Neagle is still in custody – the judge having denied a request by the Idaho Department of Juvenile Corrections to permit him unsupervised home visits. The story implied that Zach had asked for the sessions, but he had not. We did not file the motion, it was filed by…

Continue Reading Zach Neagle Stays In Custody – Three Things You Can Learn About Your Case From His

 Today’s Idaho Statesman contains an article about a lawsuit filed by a young woman who was at a University of Idaho frat party, apparently got intoxicated and fell out of a third story window.  The issue here is liability: is the University or state board of education liable for injuries sustained by a person who is herself violating the law by illegally consuming alcohol? More interesting than the legal question is the comment section of the on-line version of the story – and it serves as a good reminder of how public perception plays a role in our assessment of any civil case. As the lawyer looking at a personal injury case or a wrongful death case, I always start with the obvious – how will the man on the street look at the facts of this case? After all, if the case goes to a jury you will be asking the man on the street for money.

As you might expect, the plaintiff in the U of I case was seriously injured, and it seems likely mounting medical and rehabilitation expenses have motivated her and her family to look for some help in trying to rebuild the young woman’s life. She claims generally that the University and the state board of education did not do enough to safeguard her time at the University. Had window locks or similar devices been installed, perhaps she would not have fallen out of the window and been so seriously injured. In legal terms we would talk about causation here – was the University’s failure the cause of the injury or was there another intervening cause?  Maybe her voluntary intoxication?

Check out the comments to the story to see what a tough case this might be to win.  Most of the folks posting their "two cents worth" assume the case is frivolous or absurd. As I write this, only one post speaks to the question of whether the University has a duty to do something to safeguard students in the face of known underage drinking at frat parties. And our answers to this question likely are influenced by our own behaviors as college students, and the fear we have as parents of college students that they get drunk and end up with some serious injury.

Shouldn’t the law protect people at their weakest moments? Shouldn’t it protect us – to some degree – against ourselves? Can it? 

This is a great case to watch for anyone interested in the intersection of personal responsibility and expected campus party behavior. The plaintiffs have a long battle before a jury considers the question of responsibility here. And we might check back in on this one when the question of summary judgment arises.

 

Continue Reading If You Fall Out of a Third Story Window, Is the University of Idaho Responsible – Most Comments Say “NO”

The other shoe has fallen.  John Bujak, formerly the Canyon County Prosecutor, has been charged with Grand Theft by Deception and by Embezzlement, and the investigation of the case is set out in a detailed affidavit that is available online at the Idaho Press Tribune website, or here.  But before you think this thing is over, I bet there are more falling shoes in our future.  Here’s why:

First, the affidavit indicates that although Bujak maintained neither he nor his chief of staff Tim Fleming would profit from the contract between Canyon County and Nampa City, BOTH did profit and neither apparently thinks there was any problem with their conduct. Bujak told the investigators that the issue wasn’t whether he took the money, but rather, whether he was permitted to take the money. Apparently in his mind, those statements that he would not personally profit (the Canyon County Commissioners say that they were led to believe Bujak would not profit) were only intended to refer to his agreement to "not take a salary increase."  So the investigation reveals that as the money came in from the City, which believed it was going to pay the County, Bujak used the money for his personal expenses, transferring money to his own private accounts.  It also shows that in late March 2010, Bujak used the same money to buy a $10,000 cashiers check for Tim Flemming – Bujak’s former chief of staff. Why was the $10,000 cashiers check, purchased out of Nampa City funds that were intended for Canyon County, going to Tim Fleming? Gift? Bonus? Mr. Fleming may have some explaining to do.

Second, the affidavit indicates that the contract (Prosecution Services Agreement) was between the City of Nampa and Office of the Mayor, and the Canyon County Prosecutor and Canyon County. Bujak’s claim has been that it was a personal contract between he and the City. If the contract actually is not in his name, then the money is likely not his; it belonged to the County. All of this stuff will impact on the pending lawsuits and bankruptcy proceeding. That failure to disclose to the Bankruptcy Court that he had possessed and sold a Rolex watch, could still land Bujak in another criminal case – in federal court. And of course there is the divorce proceeding and Bujak’s lawsuit against protagonists Bob Henry and the Michaelson law firm – remember he said they defamed him when they claimed that he had received money that he wasn’t entitled to?  Kind of sounds like the charges of Grand Theft in the new criminal case, doesn’t it?

Third and foremost in my mind is the likely involvement of the Idaho State Bar.  Bujak has been practicing law on a contract basis while this has been pending. He serves as an officer of the court and his conduct is subject to review by the Bar. 

Then again – I guess that potential fourteen years for each GRAND THEFT count will probably consume his time.  After all – he took the money – admits he got $236,000 from the City of Nampa that they believed was going to the Canyon County Prosecutor’s Office. The only question is whether he was ENTITLED to take it.

I bet Kerry Michaelson and Bob Henry will sleep a lot easier tonight. They called it years ago.

And Mayor Dale, City of Nampa, Canyon County Commissioners: who was driving that bus when each of you allowed this mess to go on for a year? Just how is it that Canyon County taxpayers got Bujaked on your watch? You’ve got some explaining to do, too.

 

Continue Reading Bujak Charged With Grand Theft – Tells Investigators He Took The Money

You’re kidding me? A jailhouse snitch lied? Under oath? While being asked questions by a prosecutor? Who the 9th Circuit says KNEW that the snitch was lying? Huh.

That’s what the 9th Circuit Court of Appeals found today as it reversed the death penalty for Lacey Sivak, who was convicted of murder and sentenced to death for the killing of a convenience store clerk in 1981.  The Idaho Statesman reports this story here.

What should we take away from this? First, it ain’t over til’ the fat lady sings! Criminal trials and their outcomes are unpredictable, and the "result" is often subject to further review – by the courts of appeal. Second, the jailhouse snitch testimony is always suspect because the snitch is always looking for a way out of jail! Trial lawyers need to work on that snitch cross-examination so that the jury understands the credibility issues that exist with the snitch.

Maybe most importantly – we are reminded again of the important work performed by death penalty trial, habeas and appellate attorneys. Klaus Wiebe, Rolf Kehne, David Nevin, Leo Griffard, Bruce Livingston and Colleen Ward deserve a big congrats on their hard work. Death penalty and habeas corpus work is so difficult and such precision is required that we can never thank these folks enough.

What will happen to Sivak? Likely, he will be re-sentenced (if the State chooses to seek the death penalty) or the case will be settled for a life sentence.

Remember this – no matter what crime is charged – you need to retain the best attorney you can afford. Your life may literally depend upon that choice.Continue Reading Sivak’s Death Penalty Reversed – Prosecutors Knowingly Permitted Jailhouse Snitch To Lie

The Idaho Statesman may have said it best: "Amil Myshin fought for fairness."

He was simply one of the best lawyers I ever met, and more importantly, one of the nicest men to walk our streets. He inspired. He taught. He fought – boy could he fight.

The news that Amil had passed found me last Tuesday in Challis. I…

Continue Reading Boise Criminal Defense Lawyer Amil Myshin Left A Legacy of Substance