A former engineer has been charged with destroying over 200 emails that were requested by prosecutors and investigators in the 2010 BP Gulf oil disaster. One of those emails reported that the spill was far worse than had been reported by BP.

According to CNN, Kurt Mix faces charges that he intentionally destroyed evidence that had been requested by investigators. Notably, the emails included his assessment that there was too much oil flowing out of the damaged well for the "top kill" procedure to contain the spilling crude. His estimated flow of over 15,000 barrels per day (in the destroyed email) was far different than the 5,000 barrels reported by the company. Authorities also allege that his emails reported the "top kill" was not working although BP was telling everyone that it was.

Here’s the take away: if someone is investigating you, or your employer, and if you have emails, text messages, notes or other documents, expect that they will be requested by authorities and that you will have to produce those documents. Destroying the evidence in this digital age is virtually impossible and illegal.

Which brings us to the bigger question: should you be trying to hide the truth? The fifth amendment to the constitution protects you from having to be a witness against yourself, but it does not shield you from having to produce all documents you have control over. Electronic discovery in both civil and criminal cases is a major issue. It is costly and time consuming to search computers, phones and tablets for documents relating to a case, but that is part of the cost of today’s electronic age. 

If you have a question about how to handle electronic evidence in a civil or criminal case, get some help from an attorney with experience in this area. It is not uncommon to find that there are hundreds of thousands of emails and text messages to be reviewed in a big civil or criminal matter, so getting control over those documents is critical.

And don’t try to destroy the evidence by pressing delete. The documents will still exist on a server somewhere and the government if very good at getting to those copies of your messages.

 As any experienced Idaho criminal defense lawyer will tell you, the vast majority of cases are resolved with a plea bargain long before they ever reach a courtroom. Plea bargains are important to prosecutors because they help efficiently clear dockets and allow them to prosecute more cases. They can also be beneficial to defendants by allowing them to serve a lesser sentence than what the state would ask for during trial. However, a plea bargain can only be effective if the defendant is aware of it in the first place.

In a 5-4 decision, the Supreme Court ruled that defense lawyers must inform their clients of any plea offers and give competent advice about whether to accept them. To do otherwise would violate the 6th Amendment right to effective assistance of counsel.

The two cases before the court involved a man in Missouri who pleaded guilty to driving without a license, and a Michigan man who was convicted of assault and attempted murder after following his attorney’s advice and rejecting a plea bargain.

In the Missouri case, Galin Edward Frye was arrested for driving without a license for the fourth time, a felony. The prosecutor offered two deals, including one that involved pleading to a misdemeanor and a three month recommended sentence. Frye’s attorney never told him of the offer, which ultimately led to him entering a guilty plea and getting a three year sentence.

In the Michigan case, Anthony Cooper repeatedly shot a woman, and was charged with four counts, including assault with attempt to murder. The prosecutors offered a plea deal where two of the charges would be dropped and Cooper would serve a maximum of 85 month in prison. Due to incorrect advice from his attorney, Cooper rejected the deal and was sentenced to a maximum of 30 years in prison.

In the majority opinion, Justice Kennedy wrote:

 

“This court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused… when the defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”

Justice Scalia dissented, claiming that the decision was “absurd” and that courts would be inundated with criminals making claims about how their plea bargain rights were violated. He also noted that it was unfair that prosecutors were being punished with extra work due to the errors of defense counsel. In his own dissent, Justice Alito also worried about “[expenditures] of scarce prosecutorial or judicial resources.”

Both cases will be sent back down to the lower courts for further review. It remains to be seen if this “flood of claims regarding the violation of plea bargain rights” feared by the conservative justices will actually come true.

So what will be the impact on plea bargains in Idaho? First, these cases raise the bar for all of us who advise clients on the effect their plea will have. Make certain you understand what the State or US is agreeing to before you plead. Second, ask your lawyer if he or she has had any additional offers from the prosecution. Formal offer or not, you need to know just where your case is going and just what the prosecutors will do in exchange for your plea.

What if you find yourself arrested for a “minor” crime such as failing to pay child support or some variety of traffic violation? You might imagine being taken to jail but would you expect to be subjected to a strip search? Not being a drug user or a violent repeat criminal surely such activity by the police would amount to an unreasonable search and seizure under the 4th Amendment of the Constitution. Not according to a recent ruling by the U.S. Supreme Court. The High Court recently announced that corrections officers are now permitted to perform a strip search on any inmate, at any time, regardless of the type of criminal charges that the inmate is facing.

In a divided decision, the Court decided the case of Florence v. County of Burlington, which involved the arrest and subsequent strip search of Albert Florence. Mr. Florence was riding in the car with his wife when she was pulled over for speeding. The officer realized that there was a warrant out for Mr. Florence’s arrest based on an unpaid fine. Mr. Florence spent a week in jail and was strip-searched on at least two separate occasions. Mr. Florence argued that since his alleged crime involved neither drugs nor violence, the corrections officers did not have reasonable suspicion necessary to search him and, thus, the search was unreasonable under the 4th Amendment.

The Court disagreed. Justice Kennedy wrote the majority opinion and focused on officer safety, stating, “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” As an example Justice Kennedy cited one of the September 11th hijackers who was pulled over for speeding two days before he allegedly hijacked United Flight 93. Kennedy also argued that the corrections officers’ interest in maintaining safety in jails outweighs the potential for unreasonable and unnecessary searches of certain inmates. Further, he stated that by establishing strict regulations regarding strip searches, more inmates would be deterred from trying to smuggle contraband into the jail in the first place.

The dissenters argued in favor of the standard that requires corrections officers to have reasonable suspicion of contraband in order to execute a strip search. To execute a strip search on a person accused of committing a minor crime that deals neither with drugs nor violence, seems, to some, to be equivalent to an unreasonable search of a person without a warrant. The question that has not been answered is why a warrantless search is a violation of the 4th Amendment while a strip search of a person who is highly unlikely to ever attempt to smuggle contraband into a jail is not?

Headed to trial? Got a case that you want to talk about? Give us a call at (208) 342-4633.

 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 the Department. They filed the request because in the course of Zach’s treatment, unsupervised home visits are the next logical step. The Judge’s ruling was neither unexpected or unfair. The facts of the case are tough to explain and the defense that might explain the Zach’s actions would be nearly impossible to prove.

As I was thinking about this result, a friend reminded me that there are plenty of lessons to be learned about any case from Zach’s. This is true, whether you have a civil or criminal case pending.

Here are three things I learned that might help you in your fight for justice.

First and foremost, remember to keep your audience first. If you are going to trial before a jury, the jurors are your audience. If you are at a sentencing proceeding, the audience is the Judge.

What is it about your case that will move the audience?

There is really only one story in life; "good vs. evil." Think about your favorite story and see if I am right. From Hamlet to the Hunger Games the bottom line is the same. So in front of a Judge, who is tasked first with protecting society, the focus needs to be on reassuring the Court that your client is "good," not "evil." That is a tough task for most of us in a contested, high profile criminal case. The same is true in any good civil case. Your task there is to portray your client (plaintiff or defendant) as the good guy. When done correctly, your client’s story can move the "audience" to come to his or her aid. 

Second, my experience has taught me to take my time and let the case develop. I was involved in a big racketeering case years ago in which my client was alleged to have stolen money from his clients. Over time, it became clear that the clients really supported my client and thought he had provided great service. There were some accounting errors and he had tried to make each client’s balance right, but still the State insisted it was fraud. At trial, he took the stand and told his story and when it was over, the jury saw that the truth did not support a criminal conviction.

In Zach’s case, time is proving that this is a young man deserving of a better life and hopefully, a shot at freedom. But that will take time, and he must be willing to wait patiently until he has satisfied the Court that he can be free. Patience is a very tough characteristic to develop.

Finally, if you have a case that is in the glare of the news media, walk away from the cameras. Try your case in the courtroom, not on the news. It is tempting to run to the press, but that temptation seldom works to your advantage. Work your case. Learn the facts. Understand the law. And be nice.

A friend of mine who is arguably the "greatest trial lawyer in the history of the world" stopped me one time as I prepared to cross-examine a cop about how he had set up my client. He likely saw that I had the "killer eyes" on and was headed to destroy that witness.

"Be nice."

"Why? I want to kill this guy. Didn’t you hear what he said?"

"Be nice. Jurors hate you when you kill him."

And that advice applies even to the media. Be nice.

Headed to trial? Got a case that you want to talk about? Give us a call.

I watched a young criminal defense lawyer struggle with objections the other day so I thought I would review the process we use to object. It always looks so cool on TV – the lawyer stands and announces "OBJECTION, YOUR HONOR, he can’t testify to that!" You expect the Judge to immediately stop the trial, chastise the lawyer and affirm the objecting party. In real life trials it seldom looks so clean. We stumble and stutter and spew out "objection" just loud enough to be heard, but without the conviction that we know why we are objecting. Here are four basic rules I learned as a young JAG that might help you as you stand and deliver:

First – say the word.  "Objection." Say it with conviction so that you can accomplish the real reason you are up in the first place – say it like you mean it so the witness will stop talking!

Second – give a legal basis for the objection. Not a treatise, just a rule will do: "Objection, hearsay."

Third – if you win the objection then you probably want something. How should the court fix whatever problem caused you to get out of your chair? Ask for a remedy. Ask the court to strike the testimony given before the objection, or to cure the problem.

Fourth – if you lost the battle, you many need to make a record by an offer of proof. Not on every little objection, but sometimes you need to protect that record for an appeal.

So there are the rules, courtesy of the United States Army JAG school, as best I recall.  Hope they help you do it better if you do it at all.  And that might just be the bigger question:  When should you object? Let’s save that for another day.

Off to court …

 

Continue Reading Let’s Talk About Objections – Practical Tips

 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 National Institute of Standards and Technology (NIST) recently identified 149 potential sources of human error in the analysis of crime scene fingerprints.  In an article published by NIST, the results of a study by a working group of 34 scientists, NIST recommends changes to reduce human error and make conclusions more reliable.  You can download the report at this site.

Fingerprint evidence is difficult to deal with in trial because the examiner offers his or her "opinion" as if it were indisputable fact. In truth, the examiner identifies a number of points of comparison and then, if similar to the known sample (for example, from our client), declares that the prints "match."  He or she may use fewer than 7 points of comparison in many jurisdictions and still declare the "match."

How do you handle this type of evidence at trial?  Start with NIST article and think about the issue as if it was any other opinion, subject to attack on that basis. Expert opinions are conclusions based on a review of facts (like points of comparison on fingerprints), and are subject to human error. Opinion testimony is also subject to cross-examination for bias (testimony that favors a position) and prejudice (testimony that opposes a position).  For example, an examiner may be part of the "prosecution team," with an agenda to obtain a conviction.  He or she may acknowledge that there are no real standards with respect to how many points of comparison are required to state the opinion. Perhaps he or she has been retained in a case and has been paid for the opinion.  

My point is simple – treat this witness just like any other "expert" and cut away at credibility, in part by focussing some of your cross-examination on human error.

But recognize that jurors love "scientific" evidence.  Science has certainty, or at least the appearance of certainty, for that moment in time. Turns out the earth is not flat – regardless of the opinions offered to the contrary. And maybe that "matching" fingerprint is a match only because the analysts are subject to human error. Jurors will need a reason (or 149) to not believe the conclusion that the prints match, so go slow and go broad. The more potential doubt the expert can concede, the better you will do. 

 

Continue Reading 149 Reasons Why That Fingerprint Expert Might Be Mistaken

 A young lawyer came to see me yesterday. 

"How do you win cases?" 

The answer to that is not as simple as you might imagine. A friend and mentor says that he has "not lost a jury trial in over thirty years." Really? No losses? 

"Well, it kinda’ depends how you define ‘lost’!"

And that may be true, but what I have learned from that friend and mentor, and from watching some of the best trial lawyers in the land is that preparation is the key to success in court.

The difference is preparation. Period.

Not a Harvard education. Not having worked as a prosecutor, public defender, or judge. And certainly not having been in the courtroom for 20 or 30 years. 

The key to success – whether that is winning outright or obtaining the best possible result for your case – is preparation. Preparation is time spent getting ready for trial. 

So how can you help your lawyer get ready to win your case? Here are three ideas:

First – tell the lawyer the whole truth.

Second – empower the lawyer to spend the time he or she needs to get fully prepared.

Third – take his or her advice!

And if you are a lawyer reading this, remember that our obligation is to get ready for trial as best we can. If you don’t have time for the client, don’t take the case.

Now back to preparing for trial for me. One to go in January, another in February, and then three more later this year. Five trials may not sound like a lot, but getting ready to try those cases can take a lot of time.

How about you? Getting ready for trial? If you’re a lawyer with issues you need to bounce off another lawyer, give me a call. Let’s talk about your case.

 

Continue Reading Preparing for Trial – the KEY to success!

 In private practice, criminal defense lawyers are frequently asked about public defenders.  The opinions of the folks asking about their appointed lawyers often takes on a familiar sound: 

"Should I keep this guy?"  

"He / she hasn’t even been out to see me!"  

"I want a real lawyer!"  

The truth is that public defender IS a REAL lawyer and he or she may be the best thing going for you and your case. 

By way of full disclosure, I served as a public defender in the ARMY – as part of the JAG Corps. I learned to try cases from three senior "PDs" (we were called Trial Defense Counsel in the Army) who I would still rate in the top ten trial lawyers I have ever seen over my thirty year career.  We were proud to serve as defense counsel and we never worried about how many hours were spent preparing for trial because we did not have to bill or collect from our clients.  Uncle Sam paid us the same amount each month whether we spent forty or eighty hours a week working on our cases.  

Here are three reasons you may want to stay with the public defender (and as I write this I realize this is "negative marketing" – as I am suggesting you may be better off not paying for your lawyer):

Reason 1 – your case may be more complex than your wallet’s ability to pay for counsel. Many criminal cases are incredibly complex, requiring analysis of many legal issues and factual considerations. I am in a case currently that involves over 100,000 pages of documents, each of which must be reviewed and analyzed.  Reviewing documents takes time.  Time is what we sell as private counsel – so you could expect that the more time we spend, the more the case costs.  But a public defender in a complex case may be able to commit the same amount of time and resources to your complex case and not worry about collecting for his or her fees.  If you are in a complex case, you need to ask your PD if they have the time to devote to your defense.

Reason 2 – that PD may have a better grasp of the law of your case and the local procedures than an inexperienced private counsel.  When I first started practicing in Boise, I was hired to "birddog" a criminal case for a family with unlimited funds, who had been the victim of the crime at issue. I went to the Preliminary Hearing and when the Defendant waived, I wasn’t sure exactly what would happen.  I had trial experience – couple murder cases included – but that experience was not "local." Another lawyer explained the result of the waiver and I was able to report accurately to my clients that the Defendant was headed toward arraignment. That Defendant had a public defender who breezed his way through the process because he had an intimate knowledge of the process – he was in court every day and understood exactly what was coming next.

My point here is that the PD CAN really serve a client’s best interests, in part because they have day in and day out experience in the courts.

Reason 3 – PDs are REAL LAWYERS!  I used to really hate to hear this crap. Even in the military, a defendant can hire "private counsel" to handle a courts-martial.  When I had this happen I usually felt relief and regret about the situation. Often I was happy to have another lawyer to come into the case and bring his or her experience to the defense of my client. Relief.  The regret came with my own sense of pride in the job I could have done – after all – I was a REAL lawyer too!  Still, in the end the decision needs to be made by the person facing the charges. 

I want to add that the local PDs I interact with are generally GREAT lawyers.  It’s true!  They work hard, care about their cases and genuinely operate in the best interests of their clients.  

So if you are happy with your Public Defender – you may be best to stay the course. If you want another opinion about your case, check with a private criminal defense lawyer, whether that is me or someone else.  But in the end – understand that your right to have the effective assistance of a lawyer who is paid for at public expense is one of the most important protections available to any defendant in any court in this land.  

Thanks for your service PDs.

 

Continue Reading Three Reasons That Public Defender May Be Your Best Alternative

 I frequently check out Lawrence Taylor’s DUI blog for info on trends and tips on trying these tough, tough cases.  Check out his recent post that examines where we are headed with respect to drinking and driving: are we likely to take the "legal limit" even lower. Currently the magic number is .08% – but will that number go even lower? The law is intended to reduce the number of intoxicated drivers on the road. Lowering the blood alcohol level even lower serves only to trap drivers who may well not be intoxicated at all. Check out Taylor’s post as he discusses this.

 

Continue Reading Will States Go To .05% for DUI: DUI expert following this