Thirteen months have passed since Ahmed Cepalo was killed outside Backstreet Billiards. Jeremy Hobbs was charged with murder and we commenced the trial of that case on April 12. It ended today with a hung jury. Mistrial. Do – over.

Jeremy remains in jail awaiting a conclusion to this case. I won’t discuss it here as I continue to represent Jeremy. Someday we may discuss what I learned this time in trial. It was, like every trial is, an experience.

 My great and patient assistant Patty had to take a little heat yesterday from a couple callers who wanted to talk to me about their cases. "Sorry but he can’t take your call today." It was the absolute truth.

I know there is stuff going on out there in the world of criminal defense, but man – I am in the soup. Trial starts on Monday and there are not enough hours. So hang in there…. 

 

 I am currently captivated by The Pacific, an HBO mini-series airing on Sunday nights. Even on Easter Sunday I am watching as the men of the 1st Marine Division are moving through the jungle on New Britain. The jungle is everyone’s enemy. I cannot remember enough about the history of America’s time in that part of the world and I cannot account for the accuracy of the portrayal, but I am not likely to miss an episode. The bodies of the dead look real and the faces of the survivors betray their simple desire to live another day. But actors and sets aside, I was most struck by the words of one of the actual survivors from the 1st Marine Division:

“Sometimes with life, you just pray and hold on. That’s what we did on Guadalcanal.”

It’s true, isn’t it? There are times in our lives when we can do nothing more. Our supplies are exhausted; we are physically and emotionally drained. The world seems stacked against us and there is no place to hide. There seems to be nothing left except our simple faith and persistence.

I have a friend who was literally drowning in sorrow as he watched his son struggle against himself – unable to shake an addiction to opiates – the kid stole and fought and turned reason upside down. My friend could do nothing more than observe; keeping eyes on what remained of his much-loved son who could not get free of the junk. He watched his boy, and I watched him – not just me – but his friends. We watched and waged war with him.

Another friend told him she would pray.

“Has it come to that?” he asked. “Is that all there is left? Prayer?”

In every criminal case I work on there are those days when parents and brothers and sisters and friends and spouses have those same shell-shocked faces I am watching on HBO. They are in it up to their necks and all they can do is pray and hold on. And I tell them it is OK.

Pray and hold on.

If you’re in this situation, and you are wondering if your world will ever return to normal – pray and hold on. Hold on, and hold some more.

Get some help for you and those around you. The right to counsel won’t help you – so get some help. Check with your church, call the local social services agency, grab a phonebook and find an Al-Anon meeting. Ask your Rabi, your Priest, your Pastor, your best friend and anyone else who you can trust to get you through this.

That’s right – you. In every criminal case there are family and friends dying a million times as the case unfolds. Sappy? Maybe. But I have watched these real life dramas play out in big and little cases this year and each of the past 28 years I have practiced.

If you are in one of these, you already know about pain and guilt and the "why didn’t I see this coming…." 

Pray and hold on. And get yourself some help.

 A recent Idaho Court of Appeals decision follows recent United States Supreme Court precedent, allowing a search of a car incident to arrest, even if the defendant is in custody at the time of the search, and unable to reach into the vehicle at the time of the search. The Idaho case is State v. Cantrell, decided by Judge Gratton and joined by Judges Lansing and Gutierrez. The facts in the case are fairly simple: driver of a car is stopped for going the wrong way down a one-way street in Boise. As my pal Merris says – "it was dark, he was drunk, and he was driving downtown." Probable cause to stop? Sure. Officers approach and the driver admits he was drinking, has the "glassy" eyes (aren’t all of our eyes glassy) that happen to also be bloodshot, and the "thick" speech. He says he has been drinking and he "knows where this is going." Failed gaze nystagmus added to the equation equals arrest for driving while intoxicated (DUI). Cuffed and placed into the cruiser, the officers call for a tow and proceed with a search incident to arrest. Under the seat they find some marijuana and read the defendant his rights. Does he remain silent? 

NOT ON YOUR LIFE – but that is the usual way of doing business. He admits that the pot is his and a bong will be found in the trunk. The officers find the bong, and a duffel bag loaded with mary-jane. He is charged with trafficking – for which there are mandatory minimum sentences in Idaho. 

The district court denied the motion to suppress the evidence because it was either incident to arrest or because of the inevitable discovery exception. On appeal the question is whether that ruling stands in view of the United States Supreme Court decision in Arizona v. Gant, where the Court held that the automobile exception to the warrant requirement authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, OR when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‟ 

The Idaho Court of Appeals finds that the search of Cantrell’s vehicle is permitted here because it was reasonable for officers to believe that evidence of the DUI might be found in the car. The search is good, conviction stands. 

So what do we learn from this case? 

First – when you drink, do not drive. It really is that simple; isn’t it? If Cantrell had not been drinking and driving the wrong way down a one-way street, he and his pot would not have been found that night.

Second – stop trafficking in marijuana. I know it is legal in California, but this is Idaho. Stop already. Prison is not that interesting as you will discover if you are convicted of trafficking. Mandatory sentences mean mandatory time in the can.

Third – when they say you don’t have to talk; don’t. Silence is a good thing, especially if you have been violating the law. The police do not need your help to convict you. In fairness, they likely would have gotten to the same place even if Cantrell had remained silent. But that just takes us back to points one and two.

Finally – we learn that although a warrantless search of your car is per-se unreasonable, and arguably a constitutional violation if you could reach into the car at the time it is searched, or if the police believe you may have left evidence of your crimes in that rig, they get to search without a warrant. 

 Laura Silsby is still sitting in a Haitian jail while a judge decides whether to order a trial on charges that she tried to take children from Haiti to the Dominican Republic who she believed were either orphaned or abandoned. The new charge is "arranging irregular travel." You will recall that she and other Idaho missionaries were in Haiti, ostensibly to try and save children left orphaned by the earthquake. The Haitians claim that Silsby and the others lacked the proper papers to remove the kids to an orphanage and that some of the children had living parents who had, apparently, asked that they be taken away in hopes they might have better lives. Haiti is a very complex place. It is also an evil place.

Fast forward to this story from PRI’s  (Public Radio International) The World in which E. Benjamin Skinner, author of A Crime So Monstrous: Face to Face With Modern-Day Slavery, was interviewed about his experience with child slavery in Haiti. Child slavery. Parents selling their children for a few bucks.  

As Skinner tells it he flew there and went downtown to buy a child.  That didn’t take long. From his cab he ordered a young girl who would be a domestic servant and sex slave.  The price – $100.

"Within two minutes I was able to negotiate the price down to $50."  

"In Haiti, what we’re talking about is a very particular form of child domestic slavery. This takes place when desperately impoverished, socially isolated rural parents give their children to traffickers in hopes that their children will be able to find a better life and some degree of education. In fact, what often happens is these children wind up in brutal domestic bondage."

Over the weekend I saw one of the TV newsmagazines (can’t recall which one) report that there are likely 250,000 or more children in Haiti who have been sold into slavery. So roughly the population of Boise – only kids in slavery. And we give that government aid? They work for families as domestics and sexual slaves, having been sold by their families. When the family they have been sold to leaves for the day to go to work, they leave the slave kids outside without food, water or shelter. The Haitian government does nothing about this. Nothing. The kids are called Resteveks – and this is hardly a new problem for Haiti.

And the Haitians are still holding Silsby for trying to save children. Outrageous!

Don’t tell me that this is all the missionaries’ fault because they did not know the law in Haiti. The law in Haiti does not outlaw child slavery. Missionaries trying to save children are not a problem – they are the solution. Poverty there likely makes it more of a problem as parents wanting better lives for children "give them away or sell them" to "traders" who then peddle them on the streets like trinkets, but Silsby and the others were clearly not "traders." They and the hundreds or thousands of other Americans who went to Haiti to rescue kids are not the problem there – it is the combination of poverty and opportunity that causes child slavery.

So let’s try and raise a little hell. Go and read the report. PRI is hardly some right-wing, conservative Christian propaganda machine. If anything it "suffers" from a more "moderate" view of the world. But there is nothing moderate about child slavery. It is evil.

Let’s see if we can’t raise awareness on this subject. Laura Silsby and the rest of her group of missionaries may have been naive about the workings of the law in Haiti – but this is just cover for the Haitian government. They live in a glass house. Let’s throw some stones and work to free child slaves there.

Free Laura Silsby and let’s demand that if our money is going to Haiti they must stop child slavery.

What does this have to do with criminal defense in Boise, Idaho. Nothing – and everything. So what can we do from here!?

 The Idaho Supreme Court decided an interesting case in which the Boy Scouts of America sought to dismiss a case brought by sex abuse victims who had not proceeded with their cases until they were adults. Generally, Idaho civil law contains a statute of limitations that ends liability for civil cases after some number of years. For example – if you are in an automobile accident and have a claim for negligence, the law says that you must sue within two years of the date of the injury or your claim goes away, forever. The injury may remain but your ability to collect from the persons who hurt you is eliminated. So you always have to make sure that you get that case filed within the statute of limitations.

In Morgan v. Boy Scouts of America, district court judge Michael McLaughlin ruled that the statute of limitations did not bar a civil action brought by three former Boy Scouts for sexual abuse they contend occurred in 1979 and 1982. Plaintiffs filed their cases in 2007, relying on title 6, chapter 17 of the Idaho Code, which provides a statutory cause of action for sex abuse victims. In July of 2007 an amendment to the law permitted the filing of a case “within five (5) years of the time the child discovers or reasonably should have discovered the act, abuse or exploitation and its causal relationship to an injury or condition suffered by the child, which ever occurs later.” I.C. § 6-1704. Based on the "discovery" part of the statute, child sex abuse victims in Idaho have a far greater time in which to bring their case for damages they incurred as a result of the abuse. 

Rather than just changing the statute of limitations, the Idaho Supreme Court recognized that the provisions of § 6-1701 and its amendments was the creation of a new cause of action, with greater rights than provided at common law. The legislature has created a civil cause of action for crime victims, but that statute is not applied retroactively.

"Because the scope of liability imposed under Idaho Code title 6, chapter 17 substantially differs from that available under the common law, the statutory scheme cannot be retroactively applied. “A statute will not be given a retroactive construction by which it will impose liabilities not existing at the time of its passage.” Ford v. City of Caldwell, 79 Idaho 499, 509, 321 P.2d 589, 594 (1958). While procedural and remedial statutes can be given retroactive effect, a statute that creates a right to damages where none previously existed cannot be considered to be remedial. State ex rel. Wasden v. Daicel Chem. Indus., 141 Idaho 102, 106, 106 P.3d 428, 432 (2005). Damages and punishments are substantive law. Id. Consequently, regardless of when the Does’ cause of action would have accrued under the amended statutory scheme, the statute cannot be applied to the conduct that gave rise to the cause of action because it occurred between 1979 and 1983, at least six years before the statute was enacted. Thus, the BSA cannot be held accountable for behavior that was not actionable at the time it occurred."

Bottom line – the case goes back to the district court, which had refused to dismiss the case. And the abuse victims are left without the one thing the legislature intended to create, a right to seek a remedy in court. But this decision is consistent with the law cited by the court and other cases which have held likewise. This time we are reminded as lawyers and persons with potential cases that we must act – not wait.

Protect your rights in any civil case and move sooner rather than later to protect your rights. Don’t wait – move. 

If you have been injured you need to pay attention to the limitations placed on every case. Not simply the statute of limitations (START there), but also the underlying legal precedent in that area of the law.

Six inmates sentenced to death for various murders will not receive new trials or new sentencing hearings, according to a decision of the Idaho Supreme Court. The US Supreme Court ruled in Ring v. Arizona,  that the Sixth Amendment‟s jury trial guarantee requires that a jury find an aggravating circumstance necessary to impose the death penalty instead of a judge.  Idaho’s statutory scheme required, prior to that ruling, that the district court find the aggravating factor.  

Each of the six inmates whose cases were at issue in In re: Paul Ezra Rhoades had been sentenced to death under the Idaho statute – based on a finding of an aggravating circumstance by the judge, not a jury. So their challenge in State court was based on their claim that the federal law as determined by the US Supreme Court should require that their death sentences be overturned and they be re-sentenced. Justice Horton, writing for the Idaho Court affirmed their commitment to the traditional view that the federal rights at issue here do not require resentencing. There is, according to the Court, no retroactive application of the new federal rule announced in Ring. Bottom line – the process by which the death sentence was imposed stands.  The reason rests in the Court’s holding in Schriro v. Summerlin (542 US 348, 358 (2004) that Ring announced a new procedural rule that did not apply to cases already final on direct review under federal retroactivity doctrine.

So this is a complex area of law and the case, interesting as it is, restates the law as decided on this point regarding retroactive application. The holdings of Schriro, Ring, and Teague v. Lane, are also a reminder of the value of the lawyer you retain to help get you through any case – not just a death penalty or habeas corpus matter. Here are two things for you to consider as you decide whether you should retain a lawyer for a criminal case:

FIRST – the law is often complex and application of its principles to your case may be critical to keeping you free.  That’s right – free. Today I met with a client about a presentence investigation interview he is about to undergo. A question on the form he must fill out asks him what is important in his life. "Freedom and family," he said. I would not have a better answer. So with freedom on the line and various legal concepts and interpretations by state and federal courts, you should hire a lawyer. A legal education is essential if you hope to have the best chance at winning and staying free.

SECOND – the law is fluid. Before Ring, the Supreme Court had NOT held that the Sixth Amendment’s jury trial guarantee required a jury finding of an aggravating factor for the death penalty. Most lawyers handling death penalty cases in habeas or on direct appeal (including me on three occasions) had argued the point, but without success. It was only after the "conservative" Supreme Court concluded the Sixth Amendment contained this requirement that this became a potential game changer. Still, as Justice Horton points out in his analysis, another case (Teague) limits the application of a new rule of law decided by the Court if it is procedural. The law is a living breathing thing – and it changes – even when the folks interpreting the law profess to look no further than the words of the Constitution itself. To give yourself every advantage, you should get a trained lawyer to keep you up on the changing legal landscape.

So the six death sentenced inmates remain so – at least at this point. Changes in the interpretation of the Sixth Amendment or some other legal provision may change that, which is why those death penalty cases seemingly go on forever. Whether your case is seemingly simple or obviously complex, do yourself a favor and consult with a trained attorney. You have so much at risk whenever the government contends you committed a crime that it makes no sense to try and handle your legal matter without a professional.

The problem with over generalizations is – they are in fact over generalizations! Guilty. I may have suggested recently that your likelihood of getting relief on appeal is about the same as coming up with a perpetual motion machine; or a little less than winning that $200 million Power Ball; or swimming from Los Angeles to San Diego – even if you have spent years doing those "Total Immersion" drills. Just not very likely!

Turns out I may have been wrong again. The Idaho Supreme Court has reversed a district judge who summarily dismissed a case in which a criminal defendant claimed that his right to the effective assistance of counsel was denied by both his trial and appellate lawyers. 

I also told you (when you called me from Michigan asking for the names of those appellate attorneys) that Dennis Benjamin was simply a Genius Appellate Defender. And he is. Exhibit A offered in support of that proposition: McKay v. Idaho.  There, Justice Jones (W, not J) showed us once again that the Supremes will, indeed, go analytically into that dark night and turn a case around when the interests of justice require. The right to the effective assistance of counsel for a criminal defendant lives here. At least it lives long enough to grant a hearing on the question.

If you are a criminal defendant you have the right to expect that lawyer sitting next to you will do more than fog up a mirror thrust under his or her nose to establish he or she is living. If you are a criminal defendant in any Idaho case – state or federal – I want you to stop and go read this case. I mean it. Now. It is a good reminder of just how important an effective advocate can be for you in court.

Here’s the bottom line – the district court that considered McKay’s ineffective assistance of counsel claims granted summary dismissal of the case by which McKay wanted to show his lawyer did not do everything needed to protect his right to due process at trial and on appeal. Specifically, the lawyer failed to object to the jury instructions that arguably lessened the elements required to prove that McKay had committed vehicular manslaughter. McKay had struck a motorcycle from behind while he was (the State argued) drunk. Idaho law requires the State prove that the operation of his vehicle was "a significant cause contributing to the death" of the motorcycle rider. The jury instructions failed to require consideration of the question of whether McKay’s drinking and driving was a significant cause. McKay claimed that the motorcycle’s tail light was out and regardless of driving or drinking he would not have seen the rider, negating causation.

Dismissal of the post-conviction petition without a hearing was an error. This does not mean that McKay’s conviction is vacated, but rather that the district court will have a hearing to determine if the other requirements for an ineffective assistance of counsel claim are present.  

Look – we miss stuff in trials. Most criminal defense lawyers work hard and do a good job. But we are human and we do not always get it right. So McKay has Dennis Benjamin to thank for some great work on his appeal of the denial of the petition for post-conviction relief. 

And what about your case? Have an ineffective assistance claim? Jump in here and tell us your experience. And go read my post "Three Things Clients Need From Their Lawyers" for information you need from your lawyer. Assistance requires communication and we do not always get it right. Coming soon here – Three Things Lawyers Need from Their Clients.

 I am a huge fan of 37 Signals and their product line of mind-freeing, software-killing, reality-driven SOLUTIONS. There, I said it – SOLUTIONS. As lawyers, we tend to only see problems. Problems are meant to be solved, not lawyered, and sometimes we simply forget the value in achieving something. Recently I had a case in which my client was charged with a very serious crime. The certain outcome – at least it seemed so to me – was the end of his useful life. He would spend most of it in prison if the law had its way. And when prison has its way, well, nobody ever rehabs in prison, they just do time.

But somehow I was dealing with a prosecutor who had a different view of life. She thought the life we were about to grind up could be saved. That was what she decided to do. Recognizing that the law is sometimes an "ass" she came up with a SOLUTION. The kid’s life will not end and he will pay a price but he will have a real chance, because we were able to look past the expected resolution and move toward something different. A solution.

I have been looking forward to 37 Signals’ founders Fried and Hansson’s new book – REWORK. Like that prosecutor, they have a way of coming up with stuff that is better. Stuff that works – or as they say – Reworks. We have used their Basecamp product for years, to keep clients better informed about their cases and in the loop at all hours of the day. Better than email – the messages function in Basecamp insures that your concern will get to me and my response will get back to you with the least grief possible. If you are a lawyer go check out Basecamp and think how easy life can be for you and that client. And you can post documents to the client’s project for review without the grief of sending a fax or the worry of lost emails.  No $6 faxes needed! 

REWORK is full of great advice for all of us. Consider just this one take from the book on the truth about planning. It is guessing.

When you turn guesses into plans, you enter a danger zone. Plans let the past drive the future. They put blinders on you. “This is where we’re going because, well, that’s where we said we were going.” And that’s the problem: Plans are inconsistent with improvisation.
And you have to be able to improvise. You have to be able to pick up opportunities that come along. Sometimes you need to say, “We’re going in a new direction because that’s what makes sense today.”

We spend lots of time "planning" for trial when often it is the improvisation that settles, wins, and solves cases. I am not suggesting that we shouldn’t plan for trial, but the truth is our best plans will likely leave us empty when we actually get to trial and the witnesses start testifying. The stuff you plan for may happen, but it is the understanding of the case – its facts and the law governing the facts – that will allow improvisation and solutions. The testimony you did not expect is the testimony that will sink your client’s ship. 

Make some time and read REWORK. We can learn to underdo the competition, ditch meaningless meetings and stop working so hard.