Thanks again for the nice thoughts about my Dad – but even he would want me back in the saddle and getting ready for trial. Before I get deep into trial mode (two weeks and counting), I wanted to take a minute and answer a question about federal criminal sentencing. A prospective federal client asked me about the use of the federal sentencing guidelines.  How might a sentence differ under the guidelines from a state proceeding?

The guidelines used in federal court work off a grid system.  Each offense gets a numerical score that is reflective of the perceived severity of the crime.  You can expect that an illegal re-entry by an alien has a lower score than an assault on a federal agent.  The second component of the grid has to do with calculating the criminal history of the defendant.  A person with more crimes in his or her past will be treated more harshly under the guidelines than a first time offender.  The combination of the two factors – severity of the offense and the criminal history of the defendant – result in a "guidelines sentencing range." The Court is not bound by that range and it may increase or decrease the punishment based on the circumstances of the crime and the offender. That ability to increase or decrease punishment makes the system more like the state system than during the years that the guidelines range was followed without consideration of other factors.

So the difference now – after the Supreme Court ruled that the guidelines range is not mandatory – is not, perhaps, as great as it was ten years ago. In Idaho state courts there is no sentencing grid to start the calculation, rather the courts focus on protecting society, the need for rehabilitation, deterrence of others from criminal conduct and society’s need for retribution or punishment. 

If you are charged in federal court, sit down with a lawyer who is familiar with federal criminal practice and go over the guidelines calculations as you consider your future. The sentencing guidelines make it possible to know where the court will start its sentencing consideration, but your past and the nature of the crime will ultimately decide what sentence is imposed. 

 Let’s just say that your are leaving the parking lot of your favorite convenience store.  Slurppy in one hand, cell phone in the other. An unmarked car stands by and hidden from view an officer watches your moves. You get into your car and back out. The unmarked runs interference and a couple of squad cars appear.  

"Do you know why I stopped you," the officer asks.

"No…."

"You’ve got a broken tail light. Please step out of the car."

You do and the officer asks if you have anything in the car that might be a "problem."  You read that as drugs and remember that there is a little bit of pot hidden in a glove box.  Better to take the hit then extend the contact you reason, so you admit to the pot and the cop retrieves the marijuana and your cell phone.  He taps the text message icon and sees "1lb 4 1000" flash across the screen. Later the cops find that there is a pound of marijuana hidden in the spare tire in your trunk.  Can the text message be used as evidence at trial? The officer says the text translates to "one pound for $1000."

The California Supreme Court says it can in a case (People v. Diaz)  decided in January. The text on the phone read "6 4 80" referring to six ecstasy pills for $80.  Ohio has come to a different conclusion in Ohio v. Smith, decided in 2009. There the State’s highest Court held that unless the officer’s safety is at stake or there is an emergency, the Fourth Amendment prohibits a warrantless search of a cell phone seized during a lawful arrest.  

The general rule is that officers may search a person incident to arrest. Assuming they get the cell phone lawfully, they may be required to wait for a warrant (Ohio) or may be able to search immediately (California).  The matter is likely headed to the Supreme Court for consideration.

Two things seem clear to me: first, the search of a cell phone has nothing to do with the original exception to the warrant requirement for the search incident to arrest. Officer safety is not the issue when the police are going through your phone. Second, there is so much data on our "smart" phones that a search will really get to potential "private" information.  

What would our Idaho Supreme Court rule? Hard to tell but increasingly it seems that they are writing decisions that more strictly follow the constitutional requirements for search and seizure. 

And if you are a lawyer – think about all the stuff we have on our phones that comes from clients. Email, photos, text messages and documents relating to our cases are all there for the taking. Time to get careful with the way we store information.

Have a phone story? Send me your comment.

 A reader of this blog sent me a link to a post on matchcollege.com that identifies ten colleges that permit students to show up for class "armed and dangerous."  This is an interesting reminder that the debate has been resolved in some locales. 

I grew up in Montana. Every male student took shop class and nearly everyone built two projects as part of the class:  a gun rack for home (neatly cut from wood, stained, and trimmed in felt to protect your hunting rifles) and a gun rack for use in your truck (metal shop variation).  I never had a truck but I made both racks just in case. I tried to fit the truck rack into my Mazda 1200 wagon but it never quite fit. My point, though, is that guns were just part of life. During hunting season there might have been a hundred guns safely tucked away in trucks and cars in the Sentinel High parking lot.  

They would never have taken the home of the Spartans alive.

So are guns on campus a big deal? In the west? How about Philadelphia or Chicago? Apparently not at the ten schools identified in the post.

 For about thirty years I have been trying criminal and civil cases. I am, as a result, a skeptic.  Consider this news from the City of Brotherly Love – and the scientific marvel that is the Breathalyzer.  It comes to us from Philly.com:

Philadelphia To Review All Breathalyzer-DUI Cases From 15 Months

Philadelphia, PA. March 25 — A day after Philadelphia police announced that miscalibrated breathalyzers had compromised 1,147 drunken-driving cases, District Attorney Seth Williams declared he would conduct a wholesale review of all DUI cases during the 15 months in question.

Philadelphia police file 8,000 to 10,000 drunken-driving cases each year, so the review announced Thursday by Williams’ office will involve a staggering amount of work that will take months to complete.

Deputy District Attorney Edward McCann, chief of the Criminal Division, decided to launch the review, said Williams’ spokeswoman, Tasha Jamerson. Assistant District Attorney Lynn Nichols will lead a team of prosecutors and staff that will examine the cases from September 2009 to November 2010.

McCann is also implementing training on DUI cases for prosecutors that will emphasize recognizing potential problems with the Breathalyzer devices.

Finally, Jamerson said, the District Attorney’s Office will start doing its own calibration checks on Breathalyzers rather than depend solely on police certification.

The real bill will be some time in coming.

Besides the cost of reviewing thousands of DUI prosecutions and likely retrying some, the police and city could face civil lawsuits by people wrongly convicted – some of whom may have lost their driver’s license, their job, or their freedom.

Though police officials have a list of about 400 people affected by the miscalibrated machines, Jamerson said Williams had decided a full review was needed.

Though defense lawyers specializing in DUI cases said only two of the Police Department’s eight Breathalyzers had proved inaccurate, police said Wednesday that the total was four. Some court-system sources said that number was likely to increase.

So let me ask you this: If you have been charged with driving under the influence and a machine says you are guilty, are you guilty? I mean – machines don’t lie.  Do they? We have gotten to the point that it is nearly impossible to convince a jury that the machines are not subject to error.  

Don’t drink and drive – it never ends well and can be your most costly missed cab ride.  But if you are charged with DUI, think about challenging the machine. It may just be inaccurate.

Want to talk DUI? Drop us a line.

 Did you know that a person can be seized? Of course you knew that – you’ve undoubtedly heard of "arrest." But what about that seizure that is somewhere between arrest and "no where to run." All of this matters because if you have been "seized" there is a duty to advise you of your right to remain silent if the police are interrogating you. Consider this scenario – cops come to your door and say they smell marijuana. They have a tip that you possess and maybe sell mary jane. "Can we come in," they ask.

"No way, Dude," you respond.  

"Why not? You got something to hide?"

"Nothing I want to share with you."

So do they leave? Not a chance. Instead they give you the "knock and talk" line:  "Look, we smell marijuana. We can make you sit here while we get a warrant and that could take hours, or you could sign the consent. Unless we find the Lindberg baby, we won’t arrest anyone today if you let us search. If not – well Dude, you get the picture, right? So sign right here."

If you sign and consent to the search, you may still have a claim that will invalidate the search. The short answer here is that the officers "seized" you when they showed up at your door and would not let you leave ("we can get a warrant"). If you don’t think you can scoot (officers, and uniforms and guns and such) then you likely have had your liberty restricted. That may lead to the suppression of any evidence the police found inside the apartment and any incriminating statements you made – like "hey that’s medical marijuana, I’m from Oregon." 

If the cops have knocked at your door and you have talked your way into criminal charges, call a lawyer and check out the law on your particular situation. If you have this situation occur, I suggest that you tell them to get a warrant. The mere smell of marijuana is not probable cause to arrest without more, and likely there won’t be more. Protect your rights to be free from an unreasonable search with these power words:

"Get a warrant, if you can, please."

And be polite.

Here’s another guest post by Boise Attorney Courtney Peterson, this time it’s all about juveniles.

Can your child’s juvenile conviction be expunged?

For most offenses, getting your child’s juvenile conviction is not as difficult as getting an adult conviction expunged. Idaho law states that anyone sentenced in the juvenile’s system for having committed a felony offense or committed to the department of juvenile corrections (through probation or actual detention) may petition the court for an expungement. The timeline for expungement is as follows:

1. After the expiration of five years from the date of termination of the continuing jurisdiction of the court, or
2. Five years from the date of the juvenile’s release from the juvenile detention center, or
3. After the reaching the age of 18, whichever occurs last.

Expungement doesn’t only apply to felonies. If your child committed a misdemeanor or status offenses only and has not been committed to the department of juvenile corrections, the process is a little easier. The timeline for this expunging a misdemeanor or status offense is:

1. After the expiration of one year from the date of termination of continuing jurisdiction of the court, or
2. After reaching the age of 18 years, whichever occurs later.

As with everything, there are a few exceptions. If you or your child was convicted of the following crimes, even as a juvenile, the record cannot be expunged:

1. Administering poison with intent to kill
2. Aggravated battery
3. Armed robbery
4. Arson
5. Assault with intent to commit a serious felony
6. Assault with intent to commit murder
7. Assault or battery upon certain personnel
8. Forcible sexual penetration by use of a foreign object
9. Infamous crime against nature, committed by force or violence
10. Injury to child
11. Kidnapping
12. Murder of any degree
13. Rape, excluding statutory rape
14. Ritualized abuse of a child
15. Sexual exploitation of a child
16. Unlawful use of a destructive device or bomb
17. Voluntary manslaughter
18. Felony drug charges that allege occurring on or within 1,000 feet of the property of any public or private primary or secondary school
19. Felony drug charges related to drug trafficking or manufacturing

 Your child’s future is important. Give us a call if you have any questions.

 She’s back from the slippery south, and my daughter Courtney Peterson has joined my practice, at least for now. After spending the past couple years as a prosecutor in Idaho and Kentucky, she serves up her first post here.  

Want your prior criminal conviction dismissed or expunged in Idaho? Here’s what you need to know…

Idaho Code § 19-2604 is our state’s expungement law and it allows a judge to expung a criminal record after the successful completion of probation.  The statute applies to three types of convictions – (1) sentences that have been imposed but suspended, (2) sentences that have been withheld, and (3) sentences where a judge has retained jurisdiction over a defendant who has completed a “rider.” 

 

The statue provides that if a defendant has at all times complied with the terms and conditions of probation, a judge may terminate the sentence or set aside the plea of guilty or conviction of the defendant and finally dismiss the case and discharge the defendant.  In the case of a sentence where a rider has been given without a withheld judgment, a judge may amend the judgment to misdemeanor conviction. 

 

There are two key phrases to keep in mind when reading § 19-2604.  The first is “at all times.”  For purposes of this statute, complying with that language means that a defendant must strictly abide by all the terms and conditions agreed upon when placed on probation.  What happens if your probation officer or the state files charges against you for allegedly violating your probation and then dismisses those charges because you’ve cleaned up your act and have become a model probationer?  You are likely not entitled to that conviction being expunged. The Idaho Supreme Court addressed this idea of strict compliance in State v. Thompson when it stated “The phrase ‘at all times’ means just that.  A defendant who has at any time filed to do what he or she was required to do while on probation in a particular case has not at all times complied with the terms and conditions of his or her probation.”  Just one hiccup on probation could mean that you will not qualify to have your criminal record expunged.

 

The second key phrase to keep in mind if you want a complete dismissal of your conviction is “may.”  A judge MAY dismiss your conviction if he or she finds that (1) you’ve at all times abided by the terms and conditions of your probation and (2) it is compatible with the public interest.  Is expunging your record compatible with the public interest?  Probably.  Expunging your record will most likely make it easier for you to obtain employment and once again become a productive member of society.  Have you complied completely with your probation?  That’s the question.  

 

Want to see if your record can be expunged?  Give us a call and we will be happy to talk about your case.

 

 If you happened to be on the planet Earth yesterday, you could not have missed hearing about the iPad2. "Thinner. Lighter. Faster." Steve Jobs is the master communicator and you can learn something here about your case if you are a lawyer or a client. Those words tell his story – "this thing is amazing!" Steve’s choice of words can help us all be better in front of a jury.  Here is my take-away as I am preparing for a month long trial that starts a month from now. 

First – every story needs a simple "punch line" that is memorable and hits the heart. Remember Johnny Cochran in the OJ trial: "If the glove won’t fit, you must acquit." They did. That line was so memorable that jurors later said it summarized the entire case. Work on this part of the case and come up with a memorable theme statement.

Second – use simple words. I sometimes have clients who want to talk about "the party of the first part," or who tell me an issue is "mute." I love that one – and it isn’t just clients who don’t get the "moot" or "mute" point. Steve Jobs delivers great messages with simple, real words. No jargon. We lawyers really do not get this point. Our audience (jurors) are used to hearing real words, not law words. So whether you are a lawyer or a client, keep the words real.

Third – get off your seat and practice, practice, practice. Jobs looks like a natural but those around him tell another story. That one hour presentation likely took twenty hours of practice. The problem here for most lawyers is that our clients do not want to spend money for us to practice. Given my choices, I would rather practice and get it right because usually, my client’s liberty and money is on the line.  Do not shortcut your case prep here!

So there we have it. "Thinner. Lighter. Faster." Not me after this week of vacation on my favorite beach. But what a great tag-line for the iPad2. And since I think the iPad is a great trial tool, the iPad2 is soon to join me in a courtroom near you. More on using Apple technology in trial in a later post. 

Have you been preparing your story for trial? Got a killer theme and tag-line? Work it and get ready for trial!

 I had a call this morning from a guy who wanted to know if I thought DUI was a big deal. It would be a big deal if I was charged with any crime, facing time in jail and the loss of my driver’s license. How big a deal? Just think about these three consequences if you mishandle this.

1. If you refused the breathalyzer test, you will lose your license to drive for a YEAR, unless you act quickly and settle the case in a way that reduces that time in half.  Just last week we did this for a client so that he will lose the right to drive for six months, not a year. If you did not take the breathalyzer call a lawyer now – don’t wait. And I mean that, whether you call me or someone else. Get some help on this.

2. If you are guilty of a DUI, you will have to buy SR-22 insurance to maintain a license. That is expensive and tricky because it must be kept current to maintain your privileges. Stay on top of this to keep that license.

3. If you get a jail sentence, you may still be able to do community service and thereby keep your job. If you don’t get this part right you may have to serve time in a way that causes your boss to let you go. Again – don’t mishandle this. There are ways to get time to do that jail sentence and keep that paycheck coming in to support yourself and your family.

Need some help? Send us a message or give us a call.

 Reputed Boston mobster Enrico Ponzo is leaving Idaho in the custody of the United States Marshal’s Service, headed to Beantown to face charges arising out of his life before Marsing. United States Magistrate Judge Ron Bush refused Ponzo’s request to remain free and appear voluntarily at his next hearing, finding that he had been too successful at hiding his true identity since disappearing nearly 27 years ago. Instead, he gets that long ride with the Marshals, and the chance to face a racketeering case that was filed in 1994 against he and 13 others for crimes that include murder and attempted murder. In Idaho, he has been a good neighbor, community member and friend.

So how much does that matter? How important is a "changed life" when it comes to facing criminal charges?

It matters – but not always at the point of guilt or innocence. A person either did, or did not commit the charged crimes. Living like a saint for 27 years will not alter whatever criminal conduct a person has engaged in before the change. But change matters. As I recently pointed out, sentencing is all about safety so 27 years of community membership is important to answering that all important safety question.

That Mr. Ponzo had broad community support at his detention hearing shows that at some level, he is just like the rest of us. He has friends. People who will stand up for him today and take him into their homes as a valued member of their community. That membership in the "tribe" is critical in every case. You have to show that you are part of the tribe to gain its protection. 

Here’s a little secret – an innocent man who does not appear to be part of the community (the "tribe") must prove he is worthy of its acceptance. If he cannot do that, he will almost certainly be convicted. I mean it – jurors don’t just try the evidence. They try the defendant. An outsider who cannot be trusted will have a very tough time at trial. The defendant must be like the other members of the tribe – he or she must fit in. 

Enrico Ponzo – or Jay Shaw, as he was known in Marsing – understood that. So did his neighbors. When he was arrested they gathered to support him because he was one of them. A member of their tribe. His life in Marsing mattered to them – and if he was being tried in Idaho it would matter to a jury.

So how is your life today? Are you part of a "tribe" that would come to your aid if your freedom was under attack?