When a police officer goes too far – and uses excessive force – he can be held accountable for the harm he causes. Police officers have a tough job. We rely on them to keep us safe, and most of the time an officer uses force it is justified. Still, if you have been harmed by the actions of a police officer, you may have a case. The officer and his or her agency may be responsible for your damages.

Holding a law enforcement officer accountable is not an easy assignment. The evidence must make it clear that the force used was unreasonable or unnecessary. For example, if an officer used a baton or stun gun on someone who was simply arguing whether he or she had been speeding, a case might be made that the officer had used excessive force.

Here are three things to keep in mind about your potential excessive force claim:

First, a law enforcement officer may use force that is necessary under the circumstances presented. So not every use of force will result in a case.
Second, juries want to believe that law enforcement officers “did the right thing” when confronted with a tough situation. This means that you will likely start at a disadvantage when it comes to credibility, so your choice of a lawyer to handle the case is critical to your possible recovery.
Finally, there are procedural hurdles designed or intended to keep you out of court and to limit your recovery. Do not wait to contact an attorney and review your rights as the passage of time may destroy any opportunity you have to recover.

To safeguard your rights, your lawyers need to build your case expecting to go to trial. This means that we will help you safeguard evidence, document your medical treatment, account for lost wages and employment, and identify and interview witnesses.

If you or a family member have been injured or killed as the result of a confrontation with the police, call us for a free consultation.

 

Continue Reading Excessive Force Claims Require Action – Get Information About Your Right To Recover For Injuries

We frequently are asked about Idaho’s unified sentencing scheme and how its "parts" work.  That our clients are often confused is not surprising. A recent Idaho Appellate court decision takes a look at sentencing in Idaho, and notes that even the district judge in a second degree murder case can misunderstand the law.  

In State of Idaho vs James Anderson the Court considered whether the punishment for second degree murder required a "fixed" period of ten years. The statute sets the punishment for that crime as "imprisonment not less than ten years" to life. The district court had denied a Rule 35 motion filed by the appellant to modify the sentence in the case because the judge reasoned the statute meant ten years to life. The appellate court ruled that the minimum sentence is indeed ten years – but that ten years need not be fixed. The judge simply got it wrong – he could have sentenced to less than ten years "fixed."

What is "fixed" time in a unified sentence? Let’s say a judge wants to impose a ten year sentence. Under Idaho’s sentencing scheme, the court may impose a period of that ten years during which the convicted person will not be eligible for parole. That time is known in Idaho as "fixed" time, and the remaining time is "indeterminate." In other words – it is not "determined" at the time of sentencing how much of the remaining time will be served. The person might be granted parole and avoid serving that "indeterminate" time. For example – a sentence of 3 years fixed and 7 years indeterminate means that a person would serve 3 years before being eligible for parole. The remaining 7 years would be served with the opportunity for the board of pardons and parole to consider whether to release the inmate on terms and conditions of parole. The "unified sentence" in that case would be for 10 years  (3 fixed plus 7 indeterminate =10 year sentence).

Sound confusing? It is. If you need representation in a criminal matter, or if you have a question about how your situation may be handled in the event of a conviction, give us a call. 

 

Continue Reading Idaho’s Unified Sentencing Scheme – Fixed and Indeterminate Time

When it started – the practice of lawyers getting the names of prospective clients from the arrest records at the jail – I wondered if "fishing for clients" would last. Would it produce the attorney-client relationship that we had learned about in law school? Would a handful of "advertisements" from Boise lawyers direct mailed to potential criminal defense clients serve to educate the public about their rights when facing criminal charges? Would potential clients react to the mailings and "make that call now" to protect their rights?

It has lasted and some of the lawyers soliciting clients by mail have made money. But are their clients really well served?

One of my clients recently sent me a list of the fifteen lawyers who had sent him their direct mail solicitations. When I looked at the letters they all looked alike. They focused on fear – "act now to preserve your legal rights!" They offered "free consultations" and promised that the lawyer who would meet with the potential client was "aggressive, experienced and affordable."

A couple years ago I wrote about the Five Questions You Need To Ask Any Lawyer Before You Sign The Retainer. If you have been arrested and are thinking of hiring a lawyer, please read the "Five Questions" first, even before you pick up the phone and call one of our direct mail brothers to "protect your rights." 

You’re not buying windows. 

You’re hiring an advocate.

Breathe deep and take a minute to get the truth before you sign.

And take those 10 to 20 direct mail lawyer solicitations and put them aside until you have processed the "Five Questions." 

 

Continue Reading Fishing For Clients – Before You Call That Direct Mail Lawyer, Read This!

Here is one of those questions we get at least once a week: "what happens if I violate my probation agreement?"  The answer depends on how big a mess you have made of probation and the relationship you have with the probation officer. Your probation officer could decide to tighten the reins a bit – and more closely monitor you. He or she might require that you do additional counseling or change your curfew time. A probation violation could result in your probation officer imposing discretionary jail time if the court granted that as a condition of probation. It is also possible that he or she might not do anything more than talk to you about the violation – and give you a break.

But you could also end up with a probation violation being charged by the State against you in the underlying case, and that could result in imposition of the suspended portion of your sentence. Assume that you were placed on supervised misdemeanor probation for two years, and that you agreed to not violate the law during that time. If you get a DUI or a simple battery charge, the prosecutor could file a probation violation charge in addition to the new crime. If you were to admit the violation or if you were found to have violated the probation agreement, you might end up with jail time on the first crime and the new crime.

Bottom line – a probation violation can mean a world of hurt. If you promised to stay clean and sober – do so. Stay out of trouble with your probation officer and live up to your agreement. Whether it is a felony or misdemeanor probation, you hold the keys to your freedom. Follow the agreement and you stay out of jail or even worse – prison.

As I write this I have a client facing prison for his probation violations. He said something to me that I had missed – he said he would rather have the possibility of a return to probation and the eventual chance to have the crime reduced to a misdemeanor on the successful completion of probation. If you go to prison, that will not happen. That opportunity for a change in the nature of the crime from felony to misdemeanor requires successful completion of probation. The trouble is, by the time you realize what you may have given up – it is may be too late. A probation violation can mean another stint behind bars and another "strike" against you when it comes to employment and opportunity.

Charged with a probation violation? Give us a call and tell us about your situation. Maybe we can help. 

Continue Reading What Happens If You Violate Your Probation Agreement?

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 was getting ready to peddle day three of Ride Idaho when a friend’s text message nearly dropped me. He was gone and most us had not even known he was ill. But then again, that seems so Amil – not letting on to the rest of us that he was sick.

Not long ago I was in trial and Amil was walking in the hall.  

"How’s it going?" he asked.

"Tough. I can’t seem to catch a break this time."

"Comes with the job. Just keep trying."

I will. I will keep trying to do what you did, Amil – I will fight for fairness for our clients. I will try to pass on the lessons I have learned after twenty-five years, just like you did. And I will try to treat people like you did – with grace and humility.

Man, I wish I could have a little more Amil.

In the world of "star justice," Roger Clemens’ trial for lying to Congress started out looking like "must see TV." It quickly fell apart and the court declared a mistrial based on the failure of the prosecutors to play by the rules. Only six days into the trial, and on only the second day of testimony, prosecutors apparently defied a court order and presented prejudicial hearsay testimony the judge had already barred from trial. The judge specifically found that the government’s conduct had placed the case in a posture where Clemens could not get a fair trial from the seated jury. But could he get a fair trial from another jury? Will the government get a second chance to convict the baseball superstar?

Clemens’ defense lawyers have filed a motion to dismiss the indictment, claiming that Roger cannot get a fair retrial based on the government’s conduct. The motion is 32 pages long and provides some great reading. Others have written about this in far greater detail than I can here, but the general principle to take away from the motion is this – you have a right to a fair trial in every criminal matter. A fair trial may include hard evidence, prejudicial witnesses and physical evidence that strikes a hard blow. Judges preside over criminal case to insure that the blows will be within the bounds of the law and that the parties will play by the rules. When prosecutors do not play by the rules, the court must step in and use its power to insure a fair trial. 

In the Clemens case, the prosecutors permitted hearsay statements made by Clemens’ ex-wife to be played to the jury despite a prior court ruling that prohibited them from doing so. The prosecution team had put together the video clips and transcript that were shown the jury – so even if they did not intend to violate the court’s order, they had a duty to insure that the order was complied with. In other words, after spending millions of taxpayer dollars to prepare for trial, somebody should have reviewed that video and transcript to make certain they did not violate the judge’s order.

After all – this million dollar fiasco is all about personal accountability, isn’t it? 

So now we await the government’s response to the motion. We will follow-up on this as it develops.

 

Continue Reading Roger Clemens Attorneys File Motion To Dismiss Indictment – Can He Get A Fair Trial?

Have you noticed how many attorney websites are all about the lawyer and pay no attention to the information that people charged with criminal matters are looking for? Most lawyer websites scream: "Hire me! Do it now! You might go to prison if you don’t act within the next hour! Call me now!"

I hate those websites! Instead of providing information, the lawyers using the sites try to scare you into hiring them based on emotion, not information. The truth is you might not even need an attorney to handle your case. So before you sign that retainer agreement, get informed!

This blog is different. There is a ton of free information here for you to review based on your needs. Have a DUI case? Check out the DUI section of the Topics. Have a question about how to value a personal injury or wrongful death case? Look at the Civil Practice section.

The Topics section can lead you to information that you can use to help you become informed on whatever area of law you are interested in. Well, not every area – this blog is really about criminal defense, civil rights and civil trials. With over thirty years of experience in those areas, my goal is to help you become better informed!

And what if the issue you have is not listed in the Topics? Send me a question and I will get back to you. We promise to get you information – then you can make a great decision about whether you need a lawyer and which lawyer you want to hire.

 

Continue Reading Idaho Criminal Defense Blog Is About Content – Free Information For You On Criminal Defense In Idaho

A felony criminal case in Idaho state court may begin either by indictment or by the filing of an information. If the state opts for information (think of this as a formal complaint but no grand jury proceeding), a preliminary hearing will be held to determine if there is probable cause to believe that the defendant has committed a felony crime. Now this is not the situation with misdemeanors – a preliminary hearing only applies to felony cases.

Here’s the way this works – suppose that you are suspected of grand theft of $20,000 from a neighbor. The state prosecutor might go to a grand jury – the "secret" body that can "indict" a person if it finds there is probable cause, or the state can simply charge the offense and go to a preliminary hearing. Both the grand jury and the Magistrate at a preliminary hearing are charged to determine whether there is probable cause to believe that the crime has occurred and the charged person is liable.  The test for probable cause is whether it is more likely than not that the person committed the charged offense.  "More likely than not" is not proof beyond a reasonable doubt – it is just proof that makes it more probable than not the crime occurred.

The alternative way to get this $20,000 theft before an Idaho district court is to use the preliminary hearing process. Instead of a grand jury, the probable cause determination is made in an open, public hearing before a magistrate judge. The person facing the charge will be present, can have a lawyer to cross-examine the witnesses and best of all, everyone can evaluate the witnesses.

But should you waive your right to the probable cause hearing? This question arises because the state usually conditions any plea agreement on a waiver of the preliminary hearing. They frequently say something like: "Look, if you agree to waive the prelim, we will agree to recommend probation on a plea to the theft." In truth, the state would rather not have to go through the process of calling witnesses and having the hearing.

If you want to preserve the plea offer, you may decide to waive the preliminary hearing and let the case go to the district court. If you have already waived that other important right – to not say anything incriminating – and confessed to the theft, proving probable cause could be limited to your own confession. If you waive the preliminary you are usually only giving up the right to have the magistrate determine probable cause, but the burden of proof for probable cause is, as I said above, not proof beyond a reasonable doubt but proof by a preponderance. 

Talk to your lawyer about this as you head to a preliminary hearing. Have a plan – often that plan is intended to limit you punishment and waiving the preliminary hearing may not have any real effect in your case. There was a time when magistrates gave a serious look at the probable cause determination, but it seems to me that the lower burden of proof almost always insures a finding that binds over the case to the district court, so you may not be giving up much when the hearing is waived. On the other hand – if you are going to trial you may gain valuable information about the state’s case by forcing them to put on their witnesses at a preliminary hearing.  

 

Continue Reading Should You Waive Your Preliminary Hearing?

Yesterday I mentioned jurors, judges and lawyers – each providing a risk attendant to trial. Let’s face it, most of the time the decision to try a case is largely an exercise in risk management. Great motions that result in the dismissal of criminal charges are about as rare as pink bison roaming around Jackson Hole. We talk about great motions and we argue great motions but judges seldom grant the relief we would like for our clients. In civil cases this is also true. How many civil cases get tried? Not many. Mostly we file papers and shake our spears and argue our causes to anyone who will listen, but then we mostly settle. 

But what about trials? The great battles? Our great legal theaters?

Trial is risky. Yesterday I pointed out three risks, and here is another one that I do not often enough consider.  Witnesses are risky, too. It seems to me that in every trial some witness testifies to something that I never had expected to hear.

"Did you see the Defendant on March 3, 2010, at Piggly Wiggly?"

"No."

"What? I thought you told the investigator that you saw the Defendant at the Piggly Wiggly."

"No sir… all I said was I saw him. Can’t really say when I saw him, but it was not at Piggly Wiggly."

It happens. That killer witness who is expected to answer the "where was Waldo when the bank was robbed" question, changes his testimony. Now your defense evaporates and the alibi you had told the jury about in opening is gone.

A few weeks ago in a homicide case Courtney and I tried, I simply suggested to the state’s witness that our client believed he had been cleared through an intersection by pedestrians in a cross-walk. 

"I believe the Defendant thought he had been waived through," he said. Their witness confirmed that our client’s version of events was worthy of belief. He confirmed that our client had believed what he said he believed. 

"No further questions, judge." I sat down quickly.

Witnesses are inherently unpredictable. If you coach them too much they come off as coached. If you trust them to tell their story they come off as unprepared. 

Which takes me back to the premise advanced yesterday – trials are unpredictable. So before you go charging off to trial in your case, you must consider the risks. And here is one more thing to consider: nothing trumps experience.

By this I mean that an experienced trial lawyer is your best hedge against the unpredictable. Those personal injury mills – you know – "we settle every case for 100 times what the insurance carrier wants to pay" – those guys seldom if ever try cases. So if your case seems likely to go to trial, get yourself an experienced trial lawyer. Think about this – if you were on a plane that had lost power and was about to ditch in a river – would you rather have "newby" pilot with little or no real world experience or Sully Sullenberger at the yoke?

An actual trial of a civil or criminal case is just that sort of thing. The sky will get black and the rains will pour down and it will seem like you are going to die. You might. You need someone to fly you out of that weather and protect your future.

But enough about dark clouds and unpredictable results. It’s August. The sun is shining and in another week I will be riding a bike 500 miles or so through the mountains of Idaho. If you have a question about whether you should be going to trial, give us a call.

 

Continue Reading Here’s Another Risk Associated With Trial – Witness Testimony

Every day I am faced with advising clients on the risks associated with trials. Whether the case is civil or criminal, at some point you face this question: Should you go to trial or accept a settlement? The thing about settlement – as our esteemed Congressmen and women would be happy to tell us today ("economic meltdown averted") – is that EVERYONE walks away from the table wondering how much more they could have gotten. And – as we frequently tell our clients – everyone walks away feeling like they got screwed.  Sorry to say it, but it is true. Everyone.

But what about the risks of trial? Consider these three:

The first risk of trial is predictability.  When you go to trial in any case, civil or criminal, you are asking a jury to decide what set of facts existed at the relevant time. Was the defendant driving under the influence of drugs or alcohol? Was the plaintiff injured as a result of the defendant’s negligence? How fast was that truck going? 

You see the job of the jury is to find the facts underlying a case, and then to apply the law to the facts and render judgment. Juries are not predictable. They are not generally trained for this task and often they get lost in the details of the case. They may look at a "fact" that is obvious to you and not believe it to be what you believe it to be. By way of example, in a case I tried a couple years ago, the question before the jury was whether a young woman had consented to sexual activity with my client. My client testified about their ongoing relationship, their having lived together, the circumstances that evening, and eventually "the act" having occurred at her apartment. The jury did not believe the young woman had voluntarily consented to sex. Even with all of our "proof," the jury went the other way.  Juries are inherently unpredictable.

The second risk associated with trial is attorney performance. I hesitate to mention this but not all attorneys have similar experience or abilities. Some lawyers believe that misdemeanor criminal experience is the same as trying felony cases. Nonsense. I looked at a website from a young attorney the other day who was playing up a dozen or so misdemeanor jury trials – many of them resulting in not guilty findings. Misdemeanor battery is not the same as felony aggravated assault. DUI is not the same as manslaughter. The skills needed to try a misdemeanor cases are similar, but the experience is not the same. And then there is the actual performance problem. That "hot-shot" trial lawyer can have a bad day, or even a bad witness. It happens to all of us. Prepare as we will, it does not always go our way. Trials are fluid – we have to react to rulings by the judge, changed testimony from witnesses and reactions of jurors to our story. Lawyer performance at trial is also inherently unpredictable.

The third risk is client performance. A client is on trial from the moment he or she is first gawked at by the jury. The client is under a magnifying glass. How he or she dresses, gets to court, walks from the parking lot to the court house, and reacts to testimony – well – the jurors are watching it all. And then there is the "should the client testify" issue that we face in every criminal case. In a wrongful death or accident case the issue is likely "when" should our client testify and how will he or she do under cross-examination. Clients at trial are inherently unpredictable, too!

So in the face of all this uncertainty a settlement of the case can be very appealing. A settlement produces a result – and eliminates the uncertainty. So should you go to trial?

Times a wasting and I must go to a client meeting, so I will follow up on this tomorrow – but until then – think of other ways in which the average case can be "unpredictable." How about the unpredictable nature of that judge? Black robes do not make you more predictable! And jury instructions. After thirty years I still think they are often incomprehensible. And juror experience? Nothing trumps experience! So the jury trial is full of unpredictability!

 

Continue Reading Three Risks Of Going To Trial – and yes, there are more!