Boise State University Professor Dr. Greg Hampikian is a  Biologist whose work has identified persons wrongly accused and convicted of crimes. He is regarded as one of the foremost forensic DNA experts in the United States and beyond. He is the founder of the Idaho Innocence Project, which, along with other state Innocence Projects, has helped to clear hundreds of persons wrongly convicted. Those convictions have often been based on faulty science and false confessions. So when he tells us that DNA testing at crime labs is suspect and results may be misleading, we should pay attention.

Dr. Hampikian’s op-ed in the New York Times yesterday should sound a bell for any person who faces criminal charges supported by DNA test results. Dr. Hampikian reports that in a recent reliability study, 74 out of 108 crime laboratories implicated an innocent person in a hypothetical bank robbery.

Continue Reading There’s A Problem With DNA Testing At Crime Labs – They Often Get It Wrong.

Yesterday I posted about Idaho’s tough marijuana laws.  Is Idaho any closer to legalizing marijuana-based products? How about cannabidiol (CBD) oil? I don’t think so.

It seems like every week I receive an email solicitation offering to sell me CBD oil, ordered online and delivered by mail to my home or office.  Each such offering indicates that CBD oil is a lawful product in all states, including Idaho. I am not so certain.

Continue Reading There’s a problem if you buy CBD oil in Idaho – it may be a crime.

Idaho’s Marijuana Laws Are Tough – Maybe Even Unfair!

I spent time yesterday driving to and from a rural courthouse in Western Idaho for a hearing on a marijuana case. The charge – felony possession of marijuana – arises out of a car having been stopped near the Oregon border during early morning hours for traveling too slowly. That’s right, too slowly. Officers claim they smelled marijuana, and the Oregon driver admitted the illegal weed was on board. As the amount exceeded 3 ounces, the client faced a felony, with the possibility of five years in prison and a $10,000 fine.

Continue Reading Idaho’s Marijuana Laws Are Tough!

In 2016 the Ninth Circuit Court of Appeals ruled in Wilson v. Lynch (9th Cir. Case No. 14-15799) that medical marijuana cardholders are prohibited from purchasing firearms based on federal regulations.  The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent an Open Letter to gun dealers in 2011 stating that, “If you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have ‘reasonable cause to believe’ that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person.”

Continue Reading That Medical Marijuana Card Can Prevent You From Buying A Gun!

I frequently get this question – “how can they charge me with rape? She said she was 19!” The answer is simple, a representation of the age of an apparently consenting person means nothing!

Bupkis! Nada! Absolutely nothing! What matters is the age of the person – that is – the ACTUAL age.

Continue Reading “She said she was 19. How can I be charged with RAPE?”

Among the changes to Idaho law taking effect on July 1, 2018, is an important clarification of when you can and cannot use deadly force to defend yourself, others or perhaps, your “habitation.”  The newest version of Idaho Code 18-4009 lays out the places and people you have a right to defend with deadly force. Previously Idaho focused on one’s home as a place to protect with deadly force. The law now spells out your right to use deadly force – if necessary – to your place of work and your occupied vehicle.

Continue Reading Stand Your Ground – when, where and who?

Idaho’s law protecting a person acting in self-defense gets clarified by the passage of Senate Bill 1313 – which goes into effect July 1st. The real impact is to consolidate and codify existing law to clearly protect the inherent right of a person to defend themselves and others. Idaho law permits a law-abiding citizen to stand their ground and protect themselves and families anywhere they have a right to be. SB 1313 also protects the right of a person to defend against intruders who enter the defender’s home or business unlawfully or by force, without having to demonstrate that he or she reasonably feared the intruder was about to cause death or great bodily harm. The entry by unlawful force establishes that the defender’s fear of serious injury was reasonable, so the use of self-defense was likewise reasonable.

There is a lot of debate about restrictions on gun ownership and use across the land, but Idaho remains committed to the notion that self-defense, including the use of firearms and deadly force, is a reasonable response to an unlawful attack on you or your family. The law doesn’t really change anything, but it clarifies the right to stand your ground in the face of an intrusion or attack on you or your family. The law had the backing of law enforcement and prosecutors.

I just finished reading a news story in the NY Times titled “Frail, Old and Dying, but Their Only Way Out of Prison Is In A Coffin.” It follows reporting by The Marshall Project on the same topic. The bottom line, accurately told by both is this: there are far too many old prisoners who are dying in federal lockup because too many bureaucrats won’t release them. They like rules. We see them in criminal law – folks who cannot find any good in anybody confined for a crime.

The reports indicate too often old prisoners are not granted compassionate release, even when death is imminent, based on the severity of their offense or criminal history. How often? Sixty percent of the time. Imagine an eighty-seven-year-old man convicted of tax fraud with less than two years to serve on his sentence – Irwin Schiff. After trying to get his father released for two years, Andrew Schiff arrived at a federal prison to say goodbye to his father, who was by then unconscious and on a respirator, chained to his bed and watched by a guard twenty-four hours a day. Andrew told the NY Times, “There is no humanity in there.” He is right.

Aging prisoners are a problem, and with our ever-increasing number of inmates and ever-increasing length of sentences, the problem is going to simply get worse. Here are three things to remember if you are facing a federal trial and the possibility of a federal prison sentence.

First – the Feds play to keep. Defendants are found guilty or plead guilty in federal court 98.5% of the time. Fighting the feds requires faith in your lawyer, money to pay for the fight, and a commitment to get the case ready for trial. Preparation wins cases, especially federal cases. That takes time and time is money.

Second – If you are guilty, tell your lawyer. I know this sounds crazy but sometimes the best we can do for you is damage control. Getting you in and out as quickly as possible may be your best move, but your best opportunity to do that means you must be honest up front.

Third – Big sentences are the norm in certain drug cases and white-collar cases. It is important to understand the law here and keep in mind the potential factors that will increase the Sentencing Guidelines range. For example, in a fraud case, the amount of loss is critical because it is the primary determiner of the length of sentence.

One final thought on this grim subject – United States v. Steinan 11th Circuit 2017 securities fraud case, provides a look at loss calculation for purposes of the sentencing guidelines range.  As menti0ned above, the bigger the loss, the longer the sentencing range – sometimes long enough to keep you in prison for the rest of your earthly years. In Stein, the Court of Appeals rejected the Government’s calculation of loss based what it termed “the buyer’s only” method because it failed to take into account reliance and proximate causation. Stein’s guidelines range had increased by 20 points based on the calculation of a $50 to $100 million loss. Intervening causes of loss, such as a declining market generally, must be considered on that issue. The Government had relied on actual loss, not intended loss, but its proof did not include evidence other than one investor who claimed he had been defrauded in reliance on the defendant’s fraud. The guidelines range in that case put Mr. Stein’s range at life in prison. He had been sentenced to 204 months – that’s right – 17 years.

If your case involves fraud – securities fraud, tax fraud, wire fraud – consult Stein and subsequent cases for potential arguments regarding loss calculations. It may be critical to keeping your sentencing level in check and avoiding death in the big house.

I am at it again, trying to keep a nice young man from a great family out of prison. Again. He awaits his fate. Again. And he is not alone. So many of the people addicted to opiates cycle in and out of the drug and in and out of the justice system. They fight the addiction like we were trained to fight in the Army. One battle at a time. Regroup. Be ready to fight again another day.

So on Sunday I watched CBS Sunday Morning’s report on the effort to hold Big Pharma responsible for unleashing this plague on all of us. If you are in this fight, check out their report for your self to see how similar this battle is to that against Big Tobacco.

But on our home front – representing folks addicted to opiates – we face a criminal justice system that is focused on prison. There is some chance at rehabilitation, but usually, it is for first-time offenders. The criminal justice system treats the addiction as a moral lapse, not a medical crisis. Most addicts are their own worst enemies, not because they don’t want to quit, but because the drugs control their lives and they can’t quit. Cannot. At least it seems that way.

So the battle is real.

If you are a soldier in the opioid crisis – better prepare for battle. Here are three steps to help  you to deal with the addiction and the system:

First – get into treatment. NA? Yes. Right now. Read the rest of this when you come back from that first meeting.  AA? Absolutely. Get in your car and get there. And a real substance abuse treatment program. Find one. Beg or borrow the money (please don’t steal it) and get into treatment. With opiates, you need at least an intensive outpatient program.

Next – go clean now. Not just clean in the sense of not using, but clean as in “tell your family and friends you need help.” Clean. Sleep on the living room floor while your loved ones watch over you and pray for you and feed you. They will do it, even if you have been a total jerk for the past couple years as you used, but denied using. Love has a way of understanding even criminal behavior.

Finally – if the man is after you, get a lawyer. You need help and advice and someone with experience in court can make the difference between freedom and confinement.

The battle takes place on all these fronts. Treatment is a battle. It costs and it takes work. Staying clean is a battle. It hurts and every day you will want to use and then lie to your family and friends. You are not fooling family or friends. And if you are in a battle with the law, you cannot fool the law either. So toughen up. Clean up. Truth up.

One day at a time.

People frequently ask questions about search and seizure, particularly when the search is not conducted pursuant to a warrant. The Constitution prohibits unreasonable searches. A warrantless search is unreasonable unless an exception to the warrant requirement applies. One common exception permits an officer to conduct a limited “pat-down” search of a detained person for weapons. This type of search originated in a case known as Terry vs Ohio.

What facts justify a pat-down search?  Are admissions made by a defendant after a pat-down search admissible at trial if the pat-down is unreasonable? And what about a prior statement made in response to questions by an officer who does not advise the defendant of his right to remain silent? Can that failure impact on a later admission?

These questions were recently considered by the Idaho Supreme Court in State v. Downing, decided December 22, 2017. Downing was the guest in a home occupied by a probationer named Cook. Probation officers went to verify the home as the Cook’s residence, and were told that a third person was also there. One officer asked Downing and Cook to sit on a couch with their hands visible while the other officer quickly “secured” the residence. The probation officer also searched the garage and discovered drug paraphernalia in plain view.

Cook’s behavior apparently went downhill and he became erratic as that search progressed. Although he had been cooperative, Downing stood up and walked in the direction of the front door. He sat back down when asked by the officer. When the probation officer asked about the drug paraphernalia in the garage, Downing admitted he had earlier smoked methamphetamine. He was not warned of his Miranda rights before answering the probation officer.

When local police officers arrived, Downing was warned of his Miranda rights and was then patted-down. Remember that the premise of the pat-down is officer safety, and the limited search is specifically for weapons. The officer felt something in Downing’s pocket and asked what it was. Downing told him it was methamphetamine, and the officer placed him under arrest for possession and another drug crime.

The issue for the Court was whether the district court should have suppressed the drug evidence and Downing’s statements to the local police officer. Downing’s statements to the probation officer before the police officers arrived had been suppressed by the district court. The trial court ruled that the drugs found on Downing (in response to the pat-down) and his statement to the officer that it was meth, not a weapon, were admissible.

The Supreme Court held that the pat-down search of Downing by the officer violated his Fourth Amendment right to be free from unreasonable searches. The Court found that the totality of the circumstances did not  support a finding that the officer had the “required reasonable articulable suspicion particularized as to Downing.” In other words – the facts simply did not support the conclusion he was armed and dangerous to the officer. The pat-down search was therefore unreasonable and any evidence derived from that search was inadmissible, so the drugs get suppressed.

The admissions to the officer were not admissible because there was no attenuation between the unreasonable search and the admissions by Downing.The admissions, like the drugs, flowed directly from the illegal pat-down search.

The purpose of the Terry stop and frisk – or pat-down search – is really officer safety. If an officer feels something during the pat-down search that is not a weapon, evidence seized without a warrant or admissions flowing from the warrantless search may be suppressed by the court and excluded at trial. Here the police officer found the drugs after receiving permission to search from Downing, but his consent to search his pocket flowed from his earlier admission that he had smoked methamphetamine before the officers arrived. That statement to the probation officers was not admissible because there had been no Miranda warning. His subsequent admission to the local police flowed directly from the prior illegal search.

If your case involves a search, a subsequent admission of guilt (“yes that is meth in my pocket”), or the seizure of evidence (the meth), you may have a viable motion to suppress all of the above. Check out the Downing decision for a great tutorial on these issues.