Idaho Criminal Defense Blog

Idaho Criminal Defense Blog

Information and Insight on Criminal Law and Civil Rights

The preliminary hearing – to waive or not to waive, that is the question.

The decision whether to waive a preliminary hearing, and give up a review of the probable cause determination, can often be a tough one for clients to make. Every client hopes a win at preliminary hearing means the whole case goes away before it really ever started. Unfortunately, the truth is the State’s burden at a preliminary hearing is so low that this is very rarely ever the case. For this reason , a preliminary hearing is waived in many cases; the likelihood of winning is so low that it is not worth the time, effort, money, and sacrificed bargaining position to go through the process.

In a recent case we had, one of the primary witnesses against our client became unavailable for trial when she moved out of the country. He was charged with attempted strangulation, a very serious felony that could land the client in prison. Now, you may think: Isn’t the fact that a witness has moved a good thing for the defendant at trial? Wont this keep her testimony from being used against the client? Normally you would be right, a witnesses unavailability to appear at trial might prevent their testimony from being presented to a jury. However, at the beginning of this case we went through a preliminary hearing and the witness appeared and testified about the charges. Under the law, because this witness had already testified under oath and the defense had the opportunity to cross-examine the witness, a transcript of the testimony could be read to the jury at trial  if she was unavailable.

Knowing that the witness might be unavailable for trial, our one chance to cross-examine her was at the preliminary hearing. Had we not done so, we would likely have been deemed to waive cross-examination and the jury never would have heard her answer the tough questions. The end result was the reduction of the charge to a misdemeanor battery, because we held that preliminary hearing and cross-examined. On the other hand, if we had waived the preliminary hearing she might have gone away and never testified. This might have caused more problems for the prosecutor, but in our case, the defendant had made statements to the police that would be used against him. We opted to get her testimony in the hope she would not be available to explain further the inconsistencies we could develop at the prelim.

Choosing to have the preliminary hearing can have serious consequences for trial, as can waiving the right. Your decision likely depends on whether you think the case will go to trial, or you are looking for a reasonable settlement. Choose wisely.

Twin Prosecutor – “it is the State’s conclusion Mr. Holland … did not commit the crime of rape…”

After a fully contested prelim by which the State barely had enough evidence to establish probable cause, and after we found witnesses to contest the basic premise of the State’s case against Jack Holland, a weather man for a Twin Falls television station, the State today filed its motion to dismiss. Included within that motion is this proclamation:

“As part of its continuing duty to investigate this case, the State has interviewed additional witnesses who have come forward since the preliminary hearing, and thoroughly reviewed their statements and other evidence as it relates to the testimony presented at preliminary hearing. It is the State’s conclusion based upon a close analysis of all the facts now available about this incident that Mr. Holland did not commit the crime of Rape as defined in I.C. § 18-6101. Accordingly the State moves to dismiss the charge against the Defendant.”


And the truth is confirmed – Jack Holland is innocent. That “new evidence” included information from a third party concerning a similar encounter with the complaining person.

That is simply the strongest statement of innocence I have seen from a prosecutor’s office in 35 years of practice. But the cost to Jack remains enormous.

He lost his job and likely his career.

He was jailed and had to pay a bond to gain his release.

He had to hire counsel to defend the case.

And his life was derailed in the worst possible way.

And all that based on the word of a woman who knew exactly what her words might do.

Jack Holland did not commit the crime of Rape, and he should never have been charged.

Adnan Syed Gets A NEW TRIAL – News!

Remember the first year of Serial – the great podcast that highlighted the conviction of Adnan Syed? For murder? Millions listened weekly as the tale unfolded, leaving me wondering if Adnan was in fact guilty. More importantly – was he proved guilty beyond a reasonable doubt? You can read more about the case and the podcast here, here, and here. In fact, the whole series is likely still up on the internet.

But the news today is that Adnan gets a new trial. More later – but for now – check out the NY Times article.

A retrial. Imagine how that must feel if you are in prison. And innocent.

Is your lawyer doing enough for you at sentencing?

Strong sentencing arguments are critical in every case. Every single case. Regardless of how you find yourself in a sentencing hearing – after a conviction by a jury or a judge, or through a plea agreement – your chances at being placed on probation or being locked up will often hinge on your attorney’s ability to advocate effectively and convincingly.

Earlier this month, a U.S. District Court Judge from New York shocked everyone when he chose to sentence a woman to probation rather than prison after she was convicted of serious federal drug offenses.  Judge Frederic Block of the Eastern District of New York based his non-prison sentence on the severe collateral consequences that the defendant faced as a convicted felon; immediately and in the future. The consequences were especially harsh for the defendant, a college student studying to be a teacher, who had no previous criminal record. Her conviction made her ineligible for federal student loans and grants and she would have to change her major – convicted felons don’t often get jobs as educators. In fact, convicted felons have an often impossible time finding any employment, which was a major consideration for the court. The defendant in this case will not able to apply for a passport while on probation, which will make visiting her immediate family outside of the country impossible. These were just a few of the collateral consequences noted in the judge’s decision. There may be even more consequences for you.

The potential for collateral consequences of a conviction in any case, large or small, misdemeanor or felony, is exactly why you need to hire someone who will do more than just recite the facts at sentencing. Memos to the court prior to sentencing should be filed to really explain to the judge why your case is different – why you are different. A life history and interviews of family members can help a court to understand you as a person, not just as a defendant. Your attorney needs to identify these collateral consequences for the judge and fight hard to minimize the damage. Felony convictions are tough to overcome – give us a call if you’re looking for an attorney who will do more at sentencing.

“I’m not trying to be respectful. I’m trying to win.” Johnnie Cochran.

In my split brained world a month or so ago, I had just finished watching another episode of The People vs. O. J. Simpson and reading an article in the New York Times describing the Supreme Court decision overturning a 1987 death penalty case in which prosecutors had, according to every Justice except Clarence Thomas, excluded potential jurors who were black, in the trial of a black defendant charged with murdering an elderly white man. Johnnie Cochran said it best – “I’m trying to win!” So, apparently, were the prosecutors in the Supreme Court case who chose white jurors but excluded African Americans. They likely did so because they believed that African American jurors might begin the trial with a bias in favor of the black defendant. And after you watch The People vs. O. J. Simpson, you might be inclined to agree. I actually think the bigger tragedy might be that the court system took 29 years to address the notion that prosecutors so obviously eliminated jurors based on race.

In our desire to win every case, we cannot ever choose to exclude potential jurors simply because of race, religion or sex. The temptation is always there, because every trial lawyer understands that his or her case will play better to certain people. Get those people on the jury and you have a better chance of winning. For example, in a domestic battery case, the lawyer for a male defendant may logically believe that female jurors would not tend to believe the defendant. The temptation will be to try and eliminate potential female jurors because we think they will not fairly judge the case on the evidence and give our client fair trial.

The Supreme Court has made it clear again that the system requires blinders – sort of – when it comes to race, religion and sex. But my clients do not pay me to play, they pay me to win. So, as Johnnie  said, “I’m trying to win.” Always. What this really means is that we have to educate every juror in our case and try to make them a member of our team, or at least get them to wait long enough for us to tell our story BEFORE they decide guilt or innocence.

If you have that domestic battery case, the tendency to believe that women will not fairly judge a man charged with striking his wife gets balanced against the rule prohibiting us from excluding every female from the jury pool. We have to be confident enough with our client, his story, and the provable facts to include jurors, men and women, in the process. Here are three things I try to do in every case when picking the jury.

First – I remind myself that I am not really “picking” a jury. At best, we are trying to exclude the folks we feel are least likely to accept our client’s version. Even though I like to use jury consultants, this is not magic. We do not get to “pick” anyone, for the prosecutor will just as likely “unpick” the person we want on the panel. There is little or no science to this stuff, and experience with jury selection is likely the best help in getting this right. So the more times a lawyer has been before a jury, the more likely that lawyer will wisely use his or her challenges to disqualify potential problem jurors.

Second – be honest and watch the panel. Be brutally honest. Tell them the stuff that makes you cringe. “Ladies and gentlemen, you already know that this case is about a argument, and my Bob’s wife claims he hit her. And they have some pictures showing a big bruise under her right eye.” For some potential jurors the fact that there was an argument and a bruise may mean you have no chance. Put down the notes and look at their reactions. Do they watch you or turn toward the client? Is anyone shaking his or her head? What to you feel they are thinking about your client?

Third – now tell your story. “But Bob didn’t touch his wife except to stop her from attacking him. Scratching him. Biting him, and hitting him. You will see pictures of Bob that tell the story better than I can. But can you agree to keep an open mind as we start this trial and wait for Bob’s explanation?” OK – now you start to see some heads nodding. And maybe some of them are the women you fear as jurors. So you talk with them, both men and women, about your fear that they cannot give Bob a fair trial. I mean you say it. “I am worried that you might not be able to give Bob a fair trial. Should I be worried about this?” And then, if you can’t quite make it happen, and you know that in your gut, you challenge them for cause, or use a peremptory, and hope that the panel includes folks who can fairly decide the case, in your favor. But you do so understanding that you cannot make these decisions based solely on sex, race or religion.

Being respectful to jurors is important (Cochran was actually talking to another lawyer), so we have the discussion with the ones we fear, but in the end we are there to win for our clients. That is the role of the advocate. Trying to win by honestly telling your story is the most likely way to win your case.

Have a trial coming up? Want to talk about jury selection? Need some help? Call me.

How can it have been so long since I last posted? Answer – too much to do, too little time!

Yesterday I was complaining to Courtney and Will that we needed to get writing. “Why haven’t you two been posting anything to the blog? It’s not like there isn’t interest out there about our cases and the law generally!” Then I looked at my posts – or the lack thereof this year. Where does the time go?

Most recent court activities – just got off the phone and will have a DUI reduced to Inattentive Driving for a client with a .089 BAC. Anytime we can get someone’s charges reduced on a DUI that is a good thing. The client is thrilled, the prosecutor has a result he can live with and we got a little justice. The breathalyzer is not a perfect animal – there is a little wiggle room in there so a .089 might be less than the .08.

A couple weeks ago our client was acquitted of battery in a court trial. He was understandably delighted, and the decision was right. This was one of those cases where the complaining party was, well, a frequently complaining party within the neighborhood. Unload your camper that is temporarily parked in front of your house? She calls the cops and claims you are camping illegally or the vehicle has been abandoned. Smoke in your back yard? If that smoke is carried into her “airspace” she complains. And when some water sprayed from a hose made it to her, it was claimed a battery! The best part of the thing was her using a cane to come into the courtroom (“nearly blind”), but folding it up and putting it in her purse when she left the court. In any event the result for our client was those magic words – not guilty.

On another front we are waiting on the investigative report in the Yantis case. The wheels of justice grind slowly.

So there we go – an update. Next week we will talk about some law!

Record Number of False Convictions in 2015 – Who Says You Don’t Need the Best Lawyer You Can Afford!

After 35 years practicing criminal defense, I am sometimes cynical about our system of justice. Prosecutors overcharge offenses in an attempt to prompt a plea from defendants. Defendants are seldom “presumed innocent” in the eyes of the arraigning judge, many of whom impose restrictions on pretrial release that are as onerous as the penalty for the crime they have not been convicted of. And juries! Don’t get me started! Jurors are too tough to read when you start the trial – many want to be on a jury as part of their “duty” to protect society.

So when I read a NY Times article this morning that indicated a record number of inmates were determined in 2015 to have been wrongly convicted, I would like to say I was surprised. I was not. It reports that at least 149 inmates were cleared last year, and those inmates had served an average of 14 years behind bars for crimes they did not commit.

This is timely for me because last week I spoke to two potential clients about serious felony matters that might land them in prison for life. Life. One of them said he wanted to wait and see how good the state’s case was before spending money on a lawyer. Did I mention he was facing life in prison?

Just how is it that so many people have been convicted of crimes they did not commit? Here are three reasons that I believe account for most of those convictions.

First, science is now catching up with the evidence from these older cases. A defense lawyer today can have evidence tested for DNA in ways that simply were not available or affordable fourteen years ago. The same is true with false confession evidence, and misidentifications. There are expert witnesses available today to assist in the defense, and there is, I think, a greater opportunity available to get to the truth.

Second, when confronted with a potential monster sentence, many defendants cave. Most cases are settled. Hardly anyone goes to trial because prosecutors are happy to overcharge and then offer a plea bargain for a lesser crime, and recommend a lesser sentence. But beware the promises of prosecutors. Too many times those recommendations are of no assistance with judges who are eager to protect society. So a defendant is charged with rape, facing years in prison and a life of registration as a sex offender. He or she is offered a plea to felony injury to a child, and takes the plea to avoid a life time of prison. Later, the defendant tells a second lawyer that he or she pleaded guilty, but is actually innocent. False confessions happen, but getting that exoneration later is unlikely.

Third, there are too many lawyers who advertise they have serious criminal trial experience but do not. Clients get drawn in by inexperienced counsel who may have never actually tried a similar case. Experience matters. Ask that lawyer you are about to hire if he or she has actually been in a jury trial for your type of case. If the answer is no, keep looking.

Imagine spending 14 years locked up for a crime you did not commit. Or even 1 year. That news is sobering. The NY Times piece is worth the read.

Peterson Lawyers Join the Yantis Case


Jack Yantis Poster1


We have joined with the Spence Law Firm out of Jackson, Woming and Paul Winward of Boise to represent the family of slain Council rancher Jack Yantis. An interview discussing the case is available from Channel 7 News here. Not certain that we are really “high profile” lawyers, but I am happy we are in the case, whatever the outcome. Jack Yantis should not have been killed for responding to a call from the Sheriff’s Office to take care of his bull that had been hit by a car. His death was entirely preventable. More info as we go. The poster pictured below shows Jack as the locals knew him – looking to help others and protect the ranch life in Council.

Bowe Bergdahl and the Serial Podcast – Court of Popular Opinion

SGT. Bowe Bergdahl will stand trial for Desertion and for Misbehavior before the Enemy despite the recommendations of the officer who presided over the Article 32 Investigation that a lesser proceeding is appropriate. Bergdahl left his post, was captured by the Taliban, was held 5 years and was only released when President Obama worked some magic and traded him for bad guys. But that is yet another story.

In another life, I was a military defense lawyer, an Army JAG. I still regard the safeguards within that system as better protecting the rights of defendants than the civilian systems (both state and federal) in which I practice today. Bergdahl’s Article 32 Hearing provided an opportunity to see the case and be heard on the evidence that is seldom afforded outside the military. The hearing is like a grand jury proceeding, focused on deciding whether there is probable cause to believe a defendant has committed a crime. The grand jury hearing is secret. The defendant is never permitted to appear, except to answer questions, without his or her lawyer. The defense lawyer cannot hear the evidence before the grand jurors or cross-examine any witness. A decent prosecutor can indict a ham sandwich because there is no judge and he or she chooses what evidence to offer. But an Article 32 Hearing permits an accused to appear, with a defense lawyer, and cross-examine the government’s witnesses.
The problem with an Article 32 recommendation is that it lacks any real foothold. The decision maker is the Convening Authority, the military unit commander. With stars on his or her lapels and a prosecutorial staff that can disagree with the findings of a hearing officer, the Convening Authority can simply go forward to trial. So it is here. The Army lawyer who presided at the Article 32 Hearing recommended a Special Courts Martial, where a one-year sentence would have been the maximum punishment. The Forces Command General Robert B. Abrams (the Convening Authority) disagreed and decided Bergdahl will face a potential punishment of life in prison.

Bergdahl’s lawyers will continue the fight, and nobody really knows how the case will end.

Bergdahl’s story, however, is being told in this years Second Season of Serial, the podcast from NPR that gathers millions of listeners to hear a tale unfold “one week at a time.” If you haven’t listened to Serial before, don’t wait. Get started. And as you listen to SGT Bergdahl’s story, consider the impact of two very important issues for the criminal case.

First, this is, as Serial’s Sarah Koenig says, the first time Bowe Bergdahl has told his story.

A great story well told can decide a criminal case. And the better told, more widely revealed story will trump just about any other move a defendant or lawyer can make toward those marvelous words, “not guilty.” No story and you get convicted. Skillfully relate your own version of the events and you may find justice. You may move the mountains of evidence against you.

Telling Bergdahl’s story is risky stuff for his case. Poorly told or exaggerated or unsupported by enough facts, the story won’t carry the weight of an acquittal. Sometimes the story behind the case leads to a conviction. And the story has to hook the listener so that he or she will want to help an accused. Revealed slowly and with purpose, Serial’s recitation of why Army soldier Bowe Bergdahl left his unit and was captured will likely influence potential jurors (court members in military speak) to free him or it may lead to his conviction. Unlike last year’s podcast, the actual court case will follow the podcast, so the cart may lead the horse, but where will it go?

Until I listened to the first episode a couple days ago, I had no idea that Bergdahl’s story focusses on his attempt to draw attention to his unit’s commanders. Does anyone other than Bowe Bergdahl say the unit was so poorly commanded its members faced greater odds than the usual risks of combat? Was he a whistle-blower or a deserter? After just one episode, I want to know more about his unit, its commanders, and the seemingly meaningless mission he describes.

Second,  I could not help but form opinions about Bergdahl based on how he told the story. I tend to focus on the story itself, but in fact, Bergdahl’s own voice may be just as important in deciding what we believe and what we discard. And here I must confess that Bowe’s narrative left me uncertain. Maybe his tone and affect were dull because of what he has been through. The Article 32officer heard the evidence and concluded that less charges were appropriate. Some military officials have defended SGT Bergdahl by pointing to the horrendous conditions from which he emerged after five years of beatings, torture and deprivation. His voice did not really move me.

Some politicians have called him a traitor, including the Donald, who like most of our politicians never served a day in the military. Mr. Trump has proclaimed that SGT Bergdahl should be executed, without a trial. An article in Rolling Stone implied Bergdahl was ashamed to be an American. When I listened to Bergdahl’s voice, I was not left with that impression. He was quiet, not brash or outlandish. And seemingly every right wing radio talk show host in America has opined that Bergdahl doesn’t deserve to have been traded for Taliban prisoners who were resting in Guantanamo. “We used to shoot traitors.” But that too misses the mark. The issue is not whether the trade should have been made, but rather, did SGT Bergdahl violate the law.

I want to hear something more in Bergdahl’s voice. Not just content, maybe not even context. I wanted to hear him speak in a way that would make me want to move mountains to right a wrong. And maybe it is there, buried deep inside him and afraid to come out after surviving his days with the Taliban. Maybe it is there but he is ashamed of what he did and simply unable to explain in his own words how he left his compadres. Or maybe it is not there at all.

I expected something that wasn’t there in the first episode. Maybe it will never be there. But I will wait. After all, what I heard was 45 minutes or so of selected conversations between Bowe Berghahl and a screen writer. So when I finish this I am going to listen to that first episode again, and be ready for episode two.

I hope that I will be moved.

I was never in combat. I am grateful that I served under very peaceful conditions, without any real risk to me. My military service was without the personal loss our service members have faced fighting terror. I will not judge Bergdahl yet, because he served under conditions that I know nothing about. In fact, I may never really judge him, but I will keep listening to Serial, and I will watch to see how the case progresses through the military justice system as I will wait to see if his story can move an audience of listeners, most of whom are skeptical.

All of this is not lost on the news media. The Washington Post asked yesterday whether Bergdahl’s appearance on Serial altered the Army’s decision-making. Did the Army go hard because Bowe decided to tell his story? Was Bergdahl’s story so good that the military could not risk anything less than a full assault by General Courts Martial?

When I was an Army JAG someone said that military justice is to justice what a march is to music. I never found it to be so and I certainly hope the system works better long term than it has so far. Bergdahl, meanwhile, may prevail or fail in the court of public opinion through Serial. Keep listening. And as the case proceeds, we will consider the evidence, and the prosecution of SGT Bowe Bergdahl.

Best Lawyers In America – Since 2008

We are happy to announce that Peterson Lawyers has been selected by Best Lawyers for inclusion in its annual Edition of Best Lawyers in America as a Tier 1 for our work in criminal defense. This selection is based on the review of our peers, and it is gratifying to be acknowledged in this way. The law firm was likewise included last year.

Charles Peterson has been selected for inclusion individually in the criminal defense areas of white collar crime and non-white collar crime since 2008.

Both honors really reflect on the entire gang. Way to go Courtney, Will and Patty!