For all those times I have watched people throw cigarette butts on the ground, I never really thought I would see anyone charged with littering by cigarette butt – but now I have.  In State v. DP – name changed to protect the presumed innocent – the Boise City Attorney’s Office has charged DP with the misdemeanor for doing just that.  When those Boise City employees do the same thing down at City Hall will Boise City Attorney Colaianni charge them too?  Will Assistant Boise City Attorney Andrea Carroll rush to court to charge members of the Boise Police force with the same crime?  Will Detective Ryan L. Jones of the Boise Police Department now spend his valuable taxpayer time hunting down the thousands of offenders who pay his salary?

I kind of hope so – because there are probably enough offenders out there to pay for a new "Cigarette Butt Court."  Then we could have a new Judge and perhaps another Misdemeanor Probation officer to monitor the butt dropping habits of these offenders.  

For our part – we are getting ready for trial!  

 In a real estate and mortgage fraud case, a former Boise mortgage loan processor for Zion’s Bank is headed to prison for 18 months following her entry of a guilty plea in federal court.  Barbara Cobos pleaded guilty to defrauding lenders and borrowers both, by a scheme in which the true ownership of real property was disguised and construction advances were made without work having been completed. Another Defendant – Chris Upchurch – who was a local Boise builder and developer has also pled guilty and will be sentenced next week.  Sources close to the case say he too will go to prison – likely for more time than Cobos received. How much time? Could be twice that amount or more.  Two other defendants also were charged and have plead guilty to fraud related crimes.

This may just be the beginning of the real estate and banking fraud cases in our part of the state. Like Bernie Madoff, there were apparently plenty of folks who lied and cheated their way to fortunes. There will also be some folks caught up in these investigations who are INNOCENT!  If you find yourself in that situation – get an attorney BEFORE you talk to the investigator.  An experienced criminal defense attorney can help guide you to safety and perhaps avoid criminal charges.

 Let’s say that you invest a cool hundred thousand or so into a real estate project and the developer who takes your check deposits that check into his or her personal bank account.  The money is not spent to develop anything – but rather to buy a new boat or pay the developer’s mortgage or car payment.  Is that fraud?  Survey says – maybe.  This is more common than you might imagine and I had this call just last week.  Did the developer have a duty to tell the investors that the money was going into his or her pockets, and not to build the condos in question?  In Idaho and most states, a false statement made to induce a person into taking action – investing money – may be the basis for criminal charges of fraud and a civil fraud case.  Every set of circumstances is different, and the answer probably lies in the writings of the parties, but if you have been the victim of this type of scheme, check out your possibilities.  Fraud is a crime – as in the "go directly to prison" type – and fraud can also be the basis for a civil remedy.  

The Idaho Department of Finance has most recently sued a company that sold investors in Idaho on the development of the Juan Dolio Resort in the Dominican Republic.  Forty Idahoans fell for the "investment" which promised fixed rate return on their money, but of course that return and their money went into someone’s pockets.  If you invest money into the building of a condo shouldn’t you be able to expect – or insist – that the money actually is used to construct the condo? Absolutely! Anything less – like your money going into the pockets of the developer – is fraud.  

In my practice I have clients in criminal and civil cases who are alleged to have committed fraud, and I have clients who are suing other persons in civil cases for fraud.  In the criminal setting, fraud is tough to distinguish from other failed business ventures. The cases usually turn on the question of what the person intended.

If you have a civil case alleging fraud you may be able to recover your losses.  So if that stock broker did not tell you the truth about the investment, or the real estate developer lied about where that money you invested was going, you may have a case.  Give us a call to discuss the facts.

 Congrats to my brothers and TLC Warriors on their victory in Houston in a civil rights case that pitted Kent Spence and Rafe Foreman against Harris County Sheriff’s Office and its deputies. After just four hours deliberations, the jury awarded the estate of Joel Casy $600,000 and $2.4 million to his mother.  The Houston Chronicle reported:

Casey’s death was ruled a homicide. An autopsy found the 52-year-old man died of psychotic delirium with physical restraint associated with heart disease.

He also suffered fractures to his seventh cervical vertebrae and the left horn of his thyroid cartilage, believed to have occurred when one deputy dropped a knee on Casey’s neck and pulled Casey’s head back, said the dead man’s attorney, Kent Spence.

You can read more about this case here .  Sometimes juries get it right.  Casey had complied with officers who showed up at his house to arrest him on a mental health warrant.  When he complained about the pain one of the handcuffs was causing him, Mr. Casey (a 52 year old man who suffered from schizophrenia) was taken to the ground and an officer put a knee in his back while pulling his head by the hair.  

Look folks – this stuff ain’t rocket science.  Simply treat others like you would expect to be treated. There was no need for Mr. Casey to have died here, and a jury said so.  Police misconduct cases are tough, and I cannot think of any local cases in recent times that have resulted in a favorable verdict, but it can happen (remember Ruby Ridge!).  If you think you have a case – consult an attorney who can help you level the playing field. 

 

So here is a post about being a lawyer – not about crimes.

This weekend I will be serving as a mentor for the United States District Court trial skills program. Basically I will help provide whatever benefit I may have gained over the past twenty-seven years in the courtroom to lawyers who have less time there.  Some will not have any real time in court, and many will never have picked a jury. So tell me about picking a jury – my own daughter / prosecutor asked me recently.  Jury picking is a tricky thing.  Last summer at the Trial Lawyer’s College we spent a fair amount of time with Gerry Spence learning his "method" of sorting out who stays and who leaves. At the simplest level, nobody picks a jury. You pick the people you do not trust – cannot trust, and pick them to leave.  The first step is to remember that you want to include the jurors on your "team."  The key is to identify open minded jurors, and get them to gain confidence in you.  If they associate with you and your case and your client, they are more likely to reject the other side in the case. So we start out by being honest with potential jurors about the case.  We tell them about the warts (problems) – and as Gerry says – show them are own warts.  

I gave an example of this last summer from a case I won in which my client, an Iranian woman, was accused of defrauding the government’s medicaid system. You can read about that case here. I told the jurors that I was afraid I harbored prejudices against Iranians and that might hurt my own client’s case.  My own prejudices likely go back to the capture of Americans by the Shah’s supporters.  I remember seeing them paraded through the streets and thinking how unfair it was that these Americans were held by terrorists while my government did nothing.  My feelings were real, so I told the jury about them.  They then talked to me about their own prejudices – many were willing to discuss this because I had.  You know the drill – you show me yours and I’ll show you mine.  Nothing brings jurors closer than that kind of "sharing."  Bottom line – jury picking is tricky stuff, and almost nobody (including me most days) does a very good job of it. But if you need to do this and are worried about how to – call me – I love to help other lawyers with this stuff.  And pick up a copy of Spence’s "Win Your Case."  Truthfully, the stuff in that book can help you win your case.

  I was just reading an article about the dangers posed by big rig trucks and the statistics are alarming. Every year truckers kill innocent persons because they fail to drive safely.  It happens because truck drivers suffer from fatigue, get too little sleep, drive too many miles and often rely on drugs to keep them on the road.  The US Department of Transportation studied accidents in 2005 and found that more than 144,000 trucks were involved in accidents over the course of a single year.  In more than 80 percent of the tractor trailer traffic accidents, the non-commercial driver was not at fault.  Notably most of the deaths and injuries also happened to the non-commercial driver – that would be you and me. We are the people who get injured in these collisions – the drivers of passenger cars and trucks.  The commercial truck drivers typically walk away or receive only minor injuries.

You may remember that this year we have teamed up with Gerry Spence’s law firm to combat this problem.  As we have said – the time is now – Put People First. When a large truck hits a car or truck, deadly consequences are almost sure to follow. If you or someone you know has been injured or killed because of a trucking accident, we want to help.  We have experience with these cases and stand ready to be your lawyer.  For more information on your rights, simply give us a call or use our contact form on this site.

 Got a call today from a nice lady whose son (21 years old) is charged with Felony DUI.  What might someone expect from a felony DUI?  IF guilty, a typical sentence in Ada County would likely include 120 to 150 days in jail – real time – not community service or SILD.  Add to that a $2000 fine (some likely suspended), 5 years of not driving, alcohol treatment (usually outpatient) and a real live, honest to God, FELONY conviction.  Oh – and add 5 years of felony probation. Someone is going to have to be called every time that kid wants to leave Ada, Elmore or Valley County.  And he will not be drinking anymore – that is always a condition of probation.  

The third felony gets you the habitual offender (add five more years) so every felony is a serious event.  How about getting junior out of jail?  Can do – but the bond is usually between $5000 and $25000.  And attorneys fees?  Add another $5000.  So that third DUI is a killer – best bet is to just not drive.  There is not a cab in town that costs as much as that FELONY DUI!

Remember that Crosby, Stills, Nash and Young song that advised "… teach your children well… and feed them on your dreams…."  Unfortunately, too often we teach our children that the police are only there to help, and that if they just tell the truth their problems will go away.  So it was again this week when I met with a father whose son will likely be charged with burglary.  The kid and some others "went into a friends house" to check out his new stereo.  Stereo later disappeared and the cops showed up to question the kids.  There is almost always more to the story and in the end, one of the kids told a different story than some of them and now all are looking at criminal charges for burglary and grand theft.  The dad told me his kid told the absolute truth, and he could not figure out how anyone could charge his son with a crime – "after all, the cop said nothing would happen if he just told the truth." 

Teach your children well – the police may want help in solving the crime, but they DO NOT HAVE TO TELL THEIR STORY!  Not then.  Not to the police.  Not even if the police say it will all be better and their "version" will go to the prosecutor.  The right to remain silent is just that – a RIGHT to remain silent so that the potential defendant can get an assessment of the true nature of the problem BEFORE providing the story. 

You would be surprised how many well meaning folks dig a deeper hole for themselves by making a statement to the police.  Even if there is no real evidence that the person committed the crime, the  police will want it in writing.  And once it is in writing – that is your story.  The jury will believe it is the real truth, not some watered down version constructed after the charges were filed.  Result – most of the time that statement that seems so  innocuous becomes the key to the case. 

So if the police come knocking – just tell them you want to talk to a lawyer FIRST.  To find one, check out the articles in this blog on picking the right lawyer.

 

 Idaho’s distinction as one of two states (the other is Oklahoma) that still permits the use of the firing squad as a lawful means of execution, appears to be in jeopardy.  Deputy Attorney General Bill von Tagen is pushing a bill before the legislature to get rid of the bullet as a means of "lethal injection."  So what is the big deal? Aside from Keith Wells (who volunteered to be executed in the 90s) there hasn’t been an execution in decades.  Three of my clients who were on death row (I did not represent them at trial, just on appeal and habeas) are all off the row and now serving life.  That is the norm – people sentenced to die do – but mostly of natural causes.  So no more firing squad? I wonder when the last person was executed by firing squad.  In any event, the State would like to end that possibility.  Check out my friends Idaho Supreme Court Blog for more on this, and other absurdities – at scoidblog.blogspot.com/ .

 There is this practice in small communities of hiring contract public defenders and paying them a "flat fee" to handle all of the counties’ indigent defense work.  Say you are in "Little" County, and you get charged with burglary. You don’t have that rainy day fund, so you use the services of the public defender.  He is paid by the county to defend folks like you – you know – folks without the money to hire a "private" lawyer, so off to court you go to meet and greet your lawyer.  Let’s call her Betty.  Betty looks at the file and says, "hey – I can get you a deal TODAY for a misdemeanor – unauthorized entry into the bedroom of another – if you plead TODAY!  NO FELONY!  TODAY only.  What do you think?"  And you say, "no, I’m not guilty."  PD says "but it’s a misdemeanor… why risk the felony.  Just plead today and get it over. " And let’s suppose that you do plead, and get sentenced to a year in jail, with all but 5 days suspended, and placed on probation for 2 years.  You do your time and then get a DUI – and they violate you and send you to jail to serve the 360 "suspended" days on your unauthorized entry.  You protest your innocence and claim your PD made you do it.  Gotta’ case?  Perhaps!

In Spokane a jury recently awarded a defendant who had spent 7 months in jail for child molestation, a crime he had not committed, $3 million.  As you say "$3 million dollars" please put your pinkie finger next to your lips like Dr. Evil did in Austin Powers.  It seems that the Public Defender did not have time to attend to the defense of the client because he had 500 OTHER open cases.  I know that I have said this like 3 million times but public defenders have to carry huge case loads and when they do. your case may get lost in the shuffle.  You may stay in jail as a result of that negligence – but if you do – you may have a case of legal malpractice.

The real culprit here is not the flat fee contract that the PD has with the county.  The real problem is that the caseload is simply too much for most PDs to handle.  Because he has that flat fee, he has NO incentive to manage your file as opposed to some other file and you may rot in jail as a result . But that same problem exists whenever any attorney has too many cases or becomes satisfied with handling the cases in the easiest way possible.  And virtually all criminal defense lawyers handle some cases on a flat fee basis.  My point is this – don’t look at the fee, look at the performance of the lawyer.  

With kind apologies to may pals who have such contracts, watch out if you are represented by a public defender in a small community.  Do not just plead guilty to take the easier road.  Make certain the lawyer tells you the consequences of such a plea and then only enter a plea if you are guilty. Beg or borrow the money to get another opinion before you enter that plea if you are in such a setting.  And if you have been sitting in jail because your "Little" county PD with 500 cases can’t find time to investigate your case, call me.  We need to talk.