I am working on a case in which a private citizen reported to the police that his neighbor had been drinking, got in an argument and left in his car. The tipster reported that the neighbor was drunk and driving. He gave the likely direction of travel and type of car. Cops notified by dispatch saw a car that matched the potential offender’s vehicle and stopped it to investigate. Sure enough they smelled the odor of alcohol, recognized the glassy eyed stare of too many beers and concluded that the occupant should submit to field sobriety tests. End result – DUI. 

So is the BAC that was derived from the failed field sobriety tests and the officer’s observations admissible at trial? There was no warrant for arrest or to search. They only had an anonymous tip by a neighbor that the occupant had been drinking and was driving to town.

Survey says: probably.

The Fourth Amendment to the US Constitution protects against unreasonable searches and seizures. When you challenge the validity of a vehicle stop or other seizure the burden is on the State to prove the stop was justified. The stop is either reasonable or not depending on the totality of the circumstances. The police must have had a particularized and objective basis for suspecting that the person they stopped was engaged in a crime – like drunk driving. That suspicion may be supplied by an informant’s tip or a citizens’ report, and it all comes down to the content provided and the reliability of the informant.

In Idaho there is a case (State v. Etherington) that says an anonymous tip alone, without sufficient indicia of knowledge and veracity is insufficient to justify a stop. However, a later case (Wilson v IDOT) held that the opinion of the tipster that the driver was drunk, based on her observations, was enough to validate the stop.

So be careful out there. Do not drink and drive. Call a cab or a friend or use the feet attached to your legs. If you drive and are drunk and get reported and arrested you will spend a lot of time and money trying to get your driving privileges back.

Completely off topic and, by proclamation of Judge Daniel Steckel of the 4th Judicial District, I am on vacation. Next stop – Coeur d’Alene and the local triathlon Saturday.  Then it’s off on my bike with my bride (and 350 close friends) for a 450 mile bike ride throughout Northern Idaho and Montana. 

Blogging can wait – but if you can’t – give my pal J.D. Merris a call for legal help. He is found at 208-336-2060.

Back in the office August 16 – until then its ride time.

 Our friend Ellison Matthews died over the weekend and on the Idaho Criminal Defense Lawyers list serve the stories and memories regale him. I share here what I shared there – because Ellie was a wonderful man. 

Years ago Ellie, Nevin, Garry Gilman and I were in a trial with a guy who favored a big hat. The Hat had been crossing examining a US Marshall about his actions on a hill. A kid was dead, as was his dog. A Deputy had also been shot and killed in the confusion. The Hat pushed hard but got nowhere. Ellie rose up from the table and started quietly and slowly. In about a minute he had done what the Hat could not. On a piece of paper from his pad the Hat wrote: "Thanks Ellie – you saved my ass! G.L. Spence"

Ellie framed the note and had it in his office to his last day. We used to smile about it and remember that trial. And that is how I will remember my friend. Smiling.

Rest now Wise Turtle. We will miss you.

 

 Yesterday a friend stopped me in court. "Hey – what’s the deal with your blog?"

"What deal?" I said.

"The no entries since June deal…."

Guilty. I have been running, riding, swimming, occasionally golfing, raking pine needles and burning them in McCall, boating, recovering from a couple of trials and trying to answer life’s great questions.

Why am I here?  More importantly – why can’t I get anything productive done at the office? 

And the answer is so simple – it is summer and I am livin’ easy.

But in the Ninth Circuit, justice has taken an interesting turn. In U.S. v. Laurienti, the Court concluded that a securities broker has a duty to his or her clients to disclose bonus commissions on "house stocks" that the brokerage received. The appellant had argued that the fair warning requirement of the Due Process Clause was violated when the government proceeded on this theory for its securities fraud case. They said, essentially, that it wasn’t fair to prosecute them because they had not understood their failure to disclose to be against the law. They have it all wrong.

Federal securities law makes it a crime for licensed brokers to omit to disclose a material fact that is necessary to avoid misleading an investor – if there is a duty to speak. That duty arises out of a relationship of trust and confidence. The brokers who constantly tell us we can trust their recommendations clearly have that duty as to their clients – the folks like you and me who have relied (often to our detriment) on their "expertise."

So there you have it. The Court enforces the golden rule – treat others like you would want to be treated. When we invest money with a "professional" we expect the whole truth. Anything less than that may cause us to invest our money on the basis of bad info. 

 

 The problem with the breath test is it’s assumed accuracy. Ask any lawyer who has tried a DUI (driving under the influence) case and tried to convince a jury that the test may not be providing an accurate result. Ask any person who has ever been convicted of DUI and wondered – most of the time out loud – whether that BAC result was skewed. Don’t bother asking most jurors – they operate in a bubble. BAC of .08 or greater and most jurors listen to that nice officer and the laboratory scientist who confirms that the Defendant’s concentration of alcohol was criminal. 

The breathalyzer is tough to beat in court. I am not suggesting it can’t be done. It can – but is is tough.

So the news this morning that in Washington DC, four hundred folks were wrongly convicted and half of those went to jail, because the BAC was inaccurate, may give us all pause.  

The story from the Washington Post exposes the failures of the machine and it’s guardians – city police officers who were tasked with adjusting the machine to assist with it’s presumed accuracy. They got it wrong and people were wrongly convicted. Could that happen in Boise, Idaho? Absolutely.

If you have been charged with driving under the influence of any intoxicating substance remember that the state’s case depends on their having PROOF that you violated the law. With the breathalyzer there are plenty of areas for a failure of proof. The machine has limits, and so do the folks tasked with ensuring its accuracy. Find a good lawyer and have your DUI case reviewed before you simply accept the "evidence" of your guilt. 

And if you drink – don’t drive. That life you save might by your own – or someone you love. A DUI is a very expensive lesson in the obvious.

 The Idaho Statesman reports that an Idaho priest has been accused of sexual misconduct stemming from his assignment at an Idaho Falls church in 1981. The allegations involve a man who was under 18 at the time. A similar claim was apparently made against the priest in 2005, resulting in his treatment out of state in 2006. 

Idaho law prohibits sexual contact with a minor. Our law includes two felony charges covering such matters – lewd and lascivious acts with a minor under 16, and sexual battery of a minor 16 or 17. Both charges frequently carry prison sentences, so the notion that sending someone out of state for treatment would "solve" the problem misses the mark. The Statesman report deals with allegations that have not been proven, and as such, Rev. William Gould is entitled to the full protection of the law, including the presumption of innocence.

More problematic for the church is the bad press and the potential lawsuits which might flow from the reported sexual misconduct. If church officials had knowledge of the 2005 allegations, it is almost impossible to imagine that they gave Rev. Gould the "return to work, problems solved" light. Then again, we don’t know what the circumstances were that resulted in that "treatment." Maybe there was no touching at all, and their efforts were directed at restoring the priest to his position of trust, entirely in good faith. And their knowledge of Gould’s problems in 2005 does not necessarily mean they had knowledge in 1981 (when the "new" allegations are reported to have occurred).

Regardless – it doesn’t look right. And it is not right. Priests, pastors, bishops and other religious leaders are called to a level of scrutiny that they must either withstand or be replaced. It is not possible for any church to simply "shuffle" the problem away to some other parish. As the Pope is reported to have proclaimed today, the problems in the Catholic church are the result of insiders, not some huge conspiracy from outside. For the Church – it is a matter of "purification" according to the Pope. For victims of clerical sexual abuse, the options include both criminal and civil cases. 

 I occasionally (OK – often) mention Paul Luvera and his careful study of the business of trials. The truth is, guys like Luvera have been doing this stuff forever. Or so it seems. And with that experience comes wisdom. We all want wisdom. At least that is what I want to believe. I also believe we want to win as trial lawyers, and winning is not always the same thing as getting justice. But justice is just that – a concept; a feeling that makes us all go "ahh . . . ." 

Winning is beyond "ahh…." Winning is a symphony. Full orchestra. Big music. Grand themes!

So here is something for you to consider, whether you are a lawyer or a person looking to win your case in one of this country’s courts.

To win – we need to think more like jurors. So says Luvera, and that’s good enough for me.

Jurors want to know what happened.

What does the plaintiff say? If you are in a criminal case – what does the prosecutor say happened? What is the defense? What does the plaintiff (state) want? In a civil case – who is paying? In a criminal case – how much time would this guy spend if we found him guilty? 

And if it’s a civil case – what is the money going to be used for?

Luvera says this is the stuff that the jury is thinking so we have to think about the same stuff and focus our case to answer their questions. I know it seems so logical, but we don’t always do this. Or at least I don’t.

The questions he suggests are actually more about the needs every juror has when they sit as judges in any case, whether civil or criminal. They take their roles very seriously. The need to feel like they have gotten toward justice – and that means we cannot avoid the big questions.

Here is one more. "Why didn’t the defendant testify?"

That jury instruction that says the defendant doesn’t need to testify is great stuff for lawyers. It simply does not ring the bell for jurors. Oh, I have won cases where my client did not testify, but I am increasingly worried that most jurors need to hear the defendant regardless of how smart I am, how persuasive I can be, or how weak the state’s evidence seems.

So if you are planning your case, or a client’s case, time to think like a juror. Stand back and ask yourself the tough questions about the case. 

 

 

I am in a funk. Two weeks in a trial and now I need to decompress, so I am back to reading a book I bought by John Maxwell on communication. Actually it is not about communication – it is about connecting. As lawyers we need to connect with jurors; with clients, and with our family members. That connection comes at a price – in a way – but the result of connecting is a wonderful and more meaningful life.

So while I recoup, regroup and get back to running too many miles and swimming too many laps – I really urge you to pick up a copy of Maxwell’s book and dig in. It is easy reading, even for lawyers.

Let me just share one idea from the book. Maxwell says that before we can get what we want, we have to meet the needs of the other person. So with a client for example, we have to identify their needs and meet them first if we are to really interact with them and advance their interests. Same goes for our children, wives, husbands and – well – you get the picture.

To win at trial we need to do more than talk. We need to connect. We have to identify the jury’s needs and figure out a way to meet their needs. For example – jurors often express a need to "do the right thing" while also "protecting the community." As trial lawyers we have to develop a case that allows them to feel good about both, so that they can help us. We need to connect.

So grab a copy and get going.

 

 If you have ever been to a trial and watched the drama unfold, you likely know that it all comes apart like an old thatch roof in a windstorm when the jurors hear, then see, and try to interpret the jury instructions. It is true. Jury instructions confuse jurors, they seldom instruct them on anything.

After a trial a few months ago a juror reported to me that he did not understand why neither side had "proved intent." The instructions given by the court required the prosecutor to prove that the defendant committed an intentional act, but that requirement was the source of considerable debate and requests for further instructions.

And the fact that a juror thought the defendant had to prove anything is itself problematic. That instruction that said the Defendant had no burden of proof and was not required to present any evidence had gone nowhere.

Jury instructions tend to be confusing and mysterious. Usually in Idaho the court will instruct out of the pattern instructions that are approved by the Supreme Court. They do so to avoid giving an "unapproved" instruction that may cause a reversal. But the pattern instructions were created by lawyers – and as hard as we try – we cannot help ourselves! We cannot write simple instructions of the law because it is not simple. Consider the following "limiting instruction:"

"Evidence has been introduced for the purpose of showing that [Bad Guy] committed a certain bad act involving [Another Guy]. Such evidence, if believed, is not to be considered by you to prove [Bad Guy’s] character or that [Bad Guy] has a disposition to commit such acts.

Such evidence may be considered by you only for the limited purpose of proving [Bad Guy’s] intent on the day in question …"

Huh? If Bad Guy committed a bad act, the jurors WILL consider it as a reflection of his "disposition to commit" bad acts, regardless of the instruction, IF THEY BELIEVE THEY CAN CONSIDER IT AT ALL. Truly we could do better. In at least one case last year a juror reported to me that they thought this instruction meant they could not consider the evidence at all. Now that is a limiting instruction!

This is not an indictment of the judges who give only pattern instructions or the lawyers who proffer them or the jurors who try to figure out what they mean. It is an indictment of all of us within the system who have failed to figure out a better way of doing this. We all use the pattern instructions because we give up on the prospect of having to do the work to create bright, meaningful instructions in light of the fact that they NEVER are given by the court.

Maybe I am sensitive about this today because I am drafting them again for another trial and I know that anything other than the pattern jury instructions will be left on the "cutting floor" in favor of the confusion we have created and foster by the Idaho Criminal Jury Instructions. And how can any juror be instructed on the law regarding the burden of proof and then tell me afterwards that they thought I should have proven intent? They could not figure out why I did not call my client to testify: "we all wondered about that."

They "wondered" about it even though they had been specifically instructed to "not wonder" out loud about a defendant who does not testify. 

As a lawyer, I think I have decided that I must spend less time arguing the facts and more time on the stinking instructions. I need to go over them because when jurors ask for an explanation while deliberating, we are too afraid to engage them and answer the questions. I am guilty of this myself, offering the opinion that we should "just let them figure it out." The problem is they do not figure out the instructions.

So back to my proposed instructions that are due tomorrow. Somewhere in there I might try to provide an original instruction. Something that is easily understood. Something that actually does not confuse.

Or probably not.

 If you have been watching the news out of Portland, you know that a jury awarded the victim $1.4 million in a sex abuse case brought against the Boy Scouts of America for their failure to protect scouts from sex abuse at the hands of one of its Scout leaders. At trial the plaintiff argued that the Scouts had been keeping a list of suspected abusers, but never came up with any procedure to stop the sexual abuse of the young men in the program. The jury agreed – and the punitive damages phase of the trial began this week. The jury awarded another $18.4 million punitive damages – for the dismal performance of the Boy Scouts to protect the plaintiff and others from a known child molester. Punitive damages are awarded to PREVENT this stuff from happening again by punishing the responsible party.

Here’s the kicker – Seattle Times reported that an Oregon Scouting Executive testified that the parents – that’s right – the parents were to blame. Right. Not the Boy Scouts with their list of suspected child abusers. Not the Church of Jesus Christ Latter Day Saints – which chartered the troop, provided its leaders and SETTLED OUT before trial of the case. No not those organizations or their leaders.

According to church member and attorney Eugene Grant (yes, I said attorney), the parents were negligent. The parents should not have reasonably trusted that the Mormon leaders or the Boy Scouts, who chose the leaders and organized the Troop, would have stopped a suspected pedophile from molesting boys entrusted to their care.

"But Grant said he believed the council was not responsible for the abuse, even though he admitted that a Scoutmaster and a Mormon bishop who both knew Dykes made "bad decisions" if they had any role in allowing the sleepovers."

INCREDIBLE. 

By the way – the church considered the information it possessed on the sexual abuse of the young boy to be confidential. Sound familiar?

The jury is in and that "parents are to blame" defense didn’t play so well. And it shouldn’t have played well. The jury got it right – the leadership of the Boy Scouts were responsible, and now they must pay.

If you have been the victim of sexual abuse get some real help. There is justice out there for sex abuse victims.