The Idaho Supreme Court once again points out the importance of challenging line-up identifications whenever the issue arises. Many people do not understand how common such evidence is, or how often jurors rely on the identification as the basis for their decisions. Eyewitness identification evidence can destroy a defense case with little more effort than announcing the name of the witness at trial. So how do you handle this problem as the lawyer?

The answer is simple – you challenge the identification before trial, during trial and after the trial if you have lost.

In Wurdemann v. State of Idaho, the Idaho Supreme Court held that John David Wurdemann’s sixth amendment right to effective assistance of counsel was violated by his conviction resulting from an attack on Linda LeBrane. Wurdemann’s lawyers did not adequately prepare for trial and were unaware of the relevant law regarding the admission of such evidence. Counsel failed to challenge LeBrane’s eyewitness identification of Mr. Wurdemann in a video line-up the Court reasoned was improperly suggestive. From that video, Wurdemann was identified as one of four attackers. His lawyers should have filed a motion to suppress the identification before trial, but they did not even object at trial.

Linda LeBrane picked Wurdemann out of a video lineup, some two years after she was severely beaten while driving from Washington to Utah. She had picked out men other than Wurdemann as her attacker from at least three other photo lineups. LeBrane described her attacker to police as a “very, very tall and thin” Hispanic or Native American man with long, dark greasy hair. She also said he had a “really bad rash” on his face, spoke English, and no facial hair. In the video lineup Wurdemann was one of six men shown to LeBrane, three of whom had long hair. Of those with long hair, Wurdemann was much taller than the other two. One of the other two did not speak English and the other had facial hair. And if that was not enough, a detective who investigated the beating identified another man as more closely matching the composite drawing of LeBrane’s attacker. That man was a known accomplice of a codefendant convicted in the case.

As Chief Justice Burdick wrote, “such a lineup is the epitome of an improperly suggestive lineup.” Left unchallenged before trial, and without an expert witness on eyewitness identification, the Court held Wurdemann had not received a fair trial.

And the whole point of any trial is to provide a fair forum for the determination of the facts.

What should you do when faced with the identification evidence and a lineup? Is the lineup suggestive – does it point the witness to the defendant? If it does, challenge the lineup before trial by filing a motion to suppress, and object at trial. Hire an expert to testify as to the suggestiveness of the lineup and the value of such testimony in general.

The language in the case reminds us as lawyers that regardless of the type of evidence, or the type of case, a pretrial challenge may be the only way to effectively represent our client. That is particularly true in any sexual assault or battery case. The eyewitness identification may be the only real evidence linking a defendant to a crime. That duty to defend diligently requires lawyers to prepare and research the law in every case. You cannot simply rely on your ability to cross-examine at trial.  Wurdemann’s lawyers overlooked their obligation to challenge the admission of the video lineup under Idaho Criminal Rule 12(b)(3). That rule permits defendants to file motions to suppress when evidence was illegally obtained or is otherwise constitutionally inadmissible. The Court ruled that there was no reasonable trial strategy that excused the lawyers’ failure to object to the admission of the video lineup. They simply did not adequately prepare, review, research and object!

Preparation for trial takes time and effort. Every case requires the lawyer know the facts, the law, and how they intersect. The bottom line for us is simple. We cannot get lazy.

Have a trial question? Drop us a line and maybe we can all learn something.

We receive daily inquires regarding the expungement of convictions, dismissing convictions, and reducing felony judgments to misdemeanors. Here are the Idaho options for someone who has completed probation. I hope this post helps demystify the procedures.

Withheld judgment:

Idaho generally allows each person one withheld judgment, but not every offense will support a withheld judgment. For example – there are no withheld judgments likely available for rape, robbery or murder. A withheld judgement requires the defendant to plead guilty and go through a sentencing proceeding. This usually requires that a presentence investigation report be completed for a felony offense. At sentencing, the judge may place the defendant on probation and impose specific conditions without entering a judgment – that is – by withholding the entry of judgment. If the defendant complies with the Court’s conditions, no judgment of conviction is entered, but if the defendant violates the terms of probation, the judge can resentence the defendant and enter a judgment of conviction. A successful withheld judgment will allow you to say honestly that you’ve never been convicted of a crime. But, as with the following, a record of your charge will remain. Once probation is completed successfully, a person whose judgment has been withheld can file a motion to have the court dismiss the case.


Idaho Code § 19-2604 details the eligibility requirements to have a conviction dismissed. Two key factors determine eligibility. The first is whether you completed your probation without EVER violating the terms. If you have either admitted to a probation violation or the court found you guilty of one, you will not be eligible for a dismissal of your conviction. The second factor is whether the court finds ‘good cause’ to dismiss your conviction. Good cause will likely be found if you never violated your probation.

If you served a sentence at the Idaho State Penitentiary, you are not eligible to have the case dismissed under this statute. You may, however, be eligible to have your charged reduced from a felony to a misdemeanor.

Reduction to misdemeanor:

Under Idaho Code §19-2604, a felony conviction may be reduced to a misdemeanor upon petition to the court. If less than five years have passed since the defendant’s discharge from probation, the prosecuting attorney must agree with the reduction. If at least five years have passed, then the prosecuting attorney’s approval is only needed if the defendant was convicted of the offenses listed under § 19-2604(3)(c)(i)-(xv).

Specific to juvenile offenders:

Idaho Code § 20-525A details eligibility for juveniles to have their conviction expunged, with certain serious violent offenses excluded. For felonies, eligibility begins the latest of reaching 18 years of age, five years after release, or five years after the end of the juvenile court’s jurisdiction. For misdemeanors, eligibility is the latest of one year after the end of the juvenile court’s jurisdiction or reaching age 18. The procedure for expungement allows the court, after a hearing, to expunge a juvenile record if it finds that the juvenile has been held accountable, is a contributing member of society, and that expungement will not risk public safety. The result of the expungement will result in records being sealed and removed from public access and the juvenile may deny the existence of any record.

Effect of a Dismissal:

It is useful to know the effect of a dismissal of a conviction on your record. In Idaho, even if you have your conviction dismissed or have been granted a withheld judgment, the record for your being charged will remain on the Idaho State Repository(iCourts?). The record will then read “Dismissed By Court” or “Dismissed”. There is no way to have your record completely cleared unless it is a juvenile conviction or certain domestic violence convictions where the case is sealed.

For more information about getting a conviction dismissed, give us a call at (208) 342-4633.

I saw it again the other morning in court – a young kid whose lawyer was paying little more than lip service in protecting his right to a fair and speedy trial. The truth is most people accused of a crime are treated like criminals, regardless of the fact the law is supposed to presume innocence. A judge in a case I was trying in Wyoming once told the jury that nobody in his courtroom was guilty of anything as the trial began. “Nobody. Not that young man at the table by his lawyer Mr. Peterson, not that prosecutor. Not you and not me. In this courtroom everyone starts out innocent, and it takes real evidence to find somebody guilty. You jurors will make that decision only after the trial has been submitted to you.”

He was right. If you are accused of a crime you are just that, accused. Not guilty.

So here are three things you can do to help your lawyers build your case and prepare for trial.

First, tell the lawyers the whole story. We say the “whole truth,” and we mean it. Some clients are guilty and they are better served by telling the truth sooner rather than later. A lot of time and money is spent chasing down a story that is not completely true.

Second, trust your lawyer or get a new one. If you can’t get along with the lawyer you chose, choose again, but do it quickly. The things you tell your lawyer are privileged so be open and expect the same from the lawyer. Expect the lawyer to deliver both good and bad news. People pay for our advice, so accept it as that. Advice. Then choose your best course of action, trusting that lawyer to get you the best possible result.

Finally, if you are going to trial understand the process so that you can stay informed of the deadlines the case presents. We always need to know names and contact information for people you think might help us tell your story. Get us that information as soon as possible, and stay in touch with us. That will help us stay in touch with you and your case. Hold us accountable to keep you up to date on the case as we all get ready for trial.


Just how far does the fourth amendment to the United States Constitution go to protect against a warrantless search of an apartment? That question was again considered this week by the First Circuit Court of Appeals in US v. Yoga Almonte-Baeza case in which the petitioner was convicted of drug trafficking crimes and sentenced to 156 months in prison. On appeal, Almonte-Baez claimed that the warrantless search of an apartment violated his right to be free from unreasonable search and seizure.

Almonte-Baez was inside an apartment that was rented by another man – Jose Medina – who was the subject of an ongoing investigation by DEA. That investigation revealed a plot by two persons thought to be part of a drug-trafficking ring to rob Medina, whose apartment turned out to be a stash house for drugs and money. Investigators decided to act when they found out details of the attempted robbery plan, and located Medina’s car at the apartment complex. Medina was observed caring a trash bag so heavy that it required both hands to lift. He hoisted the trash bag into his car and they followed. The usual “traffic infraction stop” ensued, and an obviously nervous Medina ultimately consented to a search of his car after giving false information to officers. As he exited the car officers observed a large wad of cash sticking out of his pants pocket. In the trash bag they found $370,000 in cash, and there was more cash within the car in a box and other bags. The went back to the apartment building he had just come from, where the landlord identified the second story apartment he rented.
Inside the apartment, Almonte-Baez started running when agents identified themselves through the closed front door. They believed that he was trying to escape out the back door, and broke in through a side door to prevent his escape and / or destruction of drugs. They had no warrant. Inside that apartment they found the appellant trying to take down a barricade to make a hasty exit out the back door, and immediately took him into custody. They also found heroin and drug paraphernalia in plain view, records and notes of heroin sales, scales and packing materials. All of this, of course, without a warrant.
Investigators might have simply waited for a warrant before entering, but they did not. Instead, their actions were argued by the Government as a basis for an exception to the warrant requirement – exigent circumstances.
So – good search or bad search? The Court said that the search was reasonable in view of the circumstances. Investigators had seen Medina leave that building and drive away after hoisting a trash bag of money into his car. They found 20 kilograms of heroin and assorted drug processing tools within the apartment after first knocking on the door and hearing someone running toward a likely escape. Those circumstances amounted to exigent circumstances, justifying an immediate apprehension of the defendant and search of the residence. The test for the “exigent circumstances” exception is whether the Government can identify an objectively reasonable basis for concluding that absent some immediate action, the loss or destruction of evidence is likely. Here, the circumstances included the fact that Medina lied to investigators when he was stopped, and the fact that investigators knew from wiretaps that drug shipments were received weekly by Medina. Those facts led to the conclusion that there were likely drugs in the apartment and the person inside was running away or destroying the evidence. They also noticed the door was sealed shut – perhaps to further hide the presence of illegal drugs.
Here’s the takeaway for criminal practice: probable cause does not require proof beyond a reasonable doubt. It requires proof adequate to ground an objectively reasonable belief that evidence of a crime is likely to be found on the premises to be entered. If the proof rises to that level, and there are exigent circumstances, the exception applies and the search is good.
The Court also noted that the “protective sweep” of the apartment after capturing Almonte-Baez was justified to make sure the location was safe in view of the petitioner’s actions. And it decided the case assuming that the petitioner had standing – that is – a protected interest in the place to be searched. The lower court had not addressed that issue, but it did not need to in view of the facts presented. There are cases that hold a person present at a stash house would not have standing to contest the search, although an overnight guest would. That wrinkle was not addressed.
Search and seizure cases are always challenging for attorneys representing persons accused of crimes. This case, decided May 12, 2017 by the First Circuit is a good example of the levels of complexity to be considered by the courts. A similar decision would almost certainly occur in the Ninth Circuit.
One additional consideration here – the case reminds me of the need to develop the facts underlying any such claim at the district court. The appellate courts generally will not substitute their view of the facts if the lower court’s version is supported by facts contained within the pleadings or presented at the hearing.

Just on my way out the door and saw this one: Attorney General Sessions thinks we need tougher sentencing and has instructed DOJ attorneys to ask for more time for crime. Like we don’t have enough people in federal prison? And tougher sentences mean that folks with federal restitution and fines to pay won’t pay. Here’s my simple reasoning – folks in prison don’t work. If they don’t work, they don’t have money to pay restitution and fines. Too simple? Not if you look at the impact of federal sentences. The Government gets big restitution judgments that make it seem like we are getting tough on crime and making the victim whole, but the reality is different. Prison time is just down time, and it does not make people more willing to follow the law or pay their fines and restitution. Probation and requiring persons convicted of criminal conduct to work and pay their victims back may well be the best solution.

Here’s my take-away: if you are facing federal criminal charges you need to be better prepared to defend your case.



UnknownToday’s question: “What happens if you are arrested and charged with driving under the influence of drugs? Let’s say prescription drugs. What does the prosecutor have to prove to obtain a conviction?” This question comes to me more frequently today than ever before, probably because more and more people who are taking medications prescribed by their doctor seemingly intersect with police officers who insist that they are operating a motor vehicle while impaired. So here goes – let’s start with the basics.

First, the law is clear, it is illegal to drive or be in physical control of a motor vehicle while under the influence of drugs or alcohol. A person is “under the influence” pursuant to Idaho Code § 18-8004 if the person’s ability to drive is impaired in some identifiable way by alcohol, drugs or intoxicating substances.

Second, the state can prove a person is “under the influence” by the “totality of the evidence.” The judge will permit admission of all kinds of evidence the state argues proves impairment. This evidence may include failed field sobriety tests, statements made by the driver, officer observations (“his eyes were bloodshot and he looked impaired”), lab results, prior drug use, and actual driving pattern. For example, striking a road sign while driving home from the bar at 0230 is going to be “some evidence” that your driving is impaired – but was it impaired as a result of alcohol, drugs or intoxicating substances? That is the state’s burden, to prove that the drugs caused impairment. And that is a tough burden in many cases.

Third, none of this means that the state must rely on direct evidence (example – lab results showing the presence of 10 times the usual measurement for that prescription drug) to win.  The state can win its case based on circumstantial evidence of the type I described above. But from my experience, the audio and video recordings of the driving pattern and officer interview will provide a good measuring stick for likely conviction or not. In other words – if you look and sound like you are under the influence, a jury is likely to believe you are guilty.

Still, there is hope in your case if your are charged with driving while impaired by a prescription medication. The meds may not be the reason you were driving poorly. Some folks are simply poor drivers, medicated or not. And it is not always easy to convince a jury that a medication they may also take could be the basis for a DUI conviction. So if that is the basis for the impairment, you should consider taking the case to trial.

In the past few months we have seen some of these cases simply dismissed as we got closer to trial and others reduced to reckless driving. If you have been charged with DUI – call a lawyer. Get some help. These cases really do matter as that DUI conviction can result in the loss of your driving privileges, substantial fines and court costs, and time in jail. And the state will always have a lawyer in the courtroom to prosecute the case. You may be wise and knowledgable in many areas of life, but there is no substitute for experience in that battleground.

The two best words for any criminal defense lawyer and any defendant – NOT GUILTY. Heard them again to day in the case of State vs. April Rice. Ms. Rice was charged with grand theft after she received a check from the County that belonged to the estate of another person. Eight months after it was deposited into an estate account she was handling, the County Treasurer concluded the money did not belong to her. They were right about that, but wrong about it being a crime. With no inventory of what the treasurer’s office had given her, there was no way to know how the check ended up in her possession. A jury heard the State’s case and concluded no crime had occurred – after only one hour of deliberation.

That may all sound easy enough, but it was actually pretty complex. There were over 60,000 documents produced in discovery, and two judges heard the preliminary hearings. Instead of trying to put April in prison, prosecutors could have easily gotten the money back, and she would not have had to pay a lawyer to defend her. Still, I am happy that she is free today, as she should be. My take-away? The jury system still works much of the time. But if you are charged with a crime, get the best lawyer you can afford. The state had multiple lawyers, and investigators, and experts and probably spent many times over that $31,000! Now on to the next case.

OK – I get it. If you are the Prez’ and you ran on a scare platform that crime is rampant in the streets and makes it more likely you will be murdered in Chicago than you will find an empty Starbucks in Seattle, you’ve got to get tough on crime! So the Donald’s new AG is not fooling around. By Memo dated March 8, 2017 he directs the 94 United States Attorneys Offices to “partner with federal, state, local and tribal law enforcement to specifically identify the criminals responsible for significant violent crime in their districts” and then use “the substantial tools at their disposal to hold them accountable….” And those federal agencies like the FBI and other law enforcement types of both state and local varieties have lots of “tools” by which to ferret out crime. And AG Sessions reminds prosecutors to target certain federal crimes and be creative, while awaiting an “upcoming memorandum on charging for all criminal cases….”

What this means to criminal defense types is simple – expect more prosecutions and AUSAs asking for stiffer punishment. Expect to have to work harder to sort out the real criminals from the usual suspects – people who make generally bad decisions. And expect that our clients who are teetering on the verge of prosecution may sooner find themselves charged and facing federal trials.

And what if you are under federal investigation? First, I suggest you get the best lawyer you can afford. Somebody you can trust. Second, get started developing your trial or settlement strategy at once. Third, if you are going to tap out, settle soonest before this push for greater prosecutions gains traction, and limits your options.

Until next time…

Oh man, has it really been that long since I last posted on this blog? I feel like I need to go to confession – “Forgive me father for I have sinned, it has been eight months since my last blog post….” But enough about that, instead, let’s start with some success – in the Air Force. Last summer I had a client charged with rape in Twin Falls, but he wasn’t guilty and the prosecutor eventually DISMISSED the case and publicly proclaimed his innocence. Not a bad result considering how difficult it is to get anyone to believe a “victim” would never make up such a story. The truth is they sometimes do make it up. So off we go to an Air Force case in which three women claim to have been sexually assaulted by our client. As we prepared to go to trial last September, we discovered that there might have been video recorded evidence on a phone the Government lab had not been able to fully process. That caused a big time out, and reset the case for trial into February. Another forensic lab located the video and audio that PROVED our client was telling the truth – the sexual contact with V1 was in fact consensual. That charge was dismissed, but we still faced trial on two other “victims.” Over the course of a week long trial, V2 testified in a way that made admission of prior sexual acts with other unit members admissible. This contradicted her testimony and made her look dishonest. V3 had prior sexual encounters with our client, and her testimony that this time was not consented was countered by other witness testimony substantiating our client’s claims. Result? Not guilty on all counts.

But more important than results, here’s what I learned:

First – sometimes, you have to be willing to just keep digging into the discovery for some gold nugget that will save your client’s bacon. That video on the cell phone was just the thing to prove our client had told the truth about V1, and it made an impact on the prosecutor and the judge.

Second – I actually like to put my client on the stand in sex cases because no matter what the judge instructs, the failure to testify usually is seen as “proof” of guilt by jurors. They say “if I had been charged, I would have testified….” Of course, there are many reasons for a person to remain silent, but most of the time in cases like this, your client needs to tell the jurors his or her story.

Third – Fear not the courts-martial! Military justice works a bit differently but the people involved – trial counsel and judges – are well trained and experienced. Mostly. In truth, the local JAGs do not always have great experience in the Air Force system because they have so few cases. Instead, they rely on more experienced trial and defense counsel who fly in and try their cases. The judges are well educated, know and understand the law, and are equal in every way to their civilian counterparts.

More later. Phone is ringing and I need to prepare for the next trial – featuring the National Forest Service, an Assistant United States Attorney, and a professional snowmobile instructor who has run afoul of those governmental regulations that seemingly keep Americans off the very lands we all hold as owners.

I am packing for the weekend and watching a little TV news this morning, and from that box a witness to a fatal shooting in Louisiana offered this explanation for the dramatic killing of a black man by a police officer there: “Officers threw him to the ground, got on top of him and shot him dead.” So it would seem from the video now readily available online. Then this morning’s newest shooting – it happened again last night, in St. Paul, Minnesota. You can even get a link to the “live stream” and watch an officer kill another black man. This time the officer had stopped the car he was riding in for a broken tail light. His girlfriend says that Philando Castile told officers he had a concealed weapon and a permit to carry. Check out the NY Times article describing how an officer shot Castile while seated in the car, after asking him to retrieve his identification. This victim was not even driving the car!

This is every persons nightmare, but it is every black person’s reality.

It must stop. Prosecutors must get brave. They must prosecute officers who needlessly and unlawfully shoot and kill persons who have done nothing to justify the use of deadly force. Prosecutors must act – if only to show us that all lives matter. These killings may have been racism but it is not just racist cops who have kill civilians “just because.”

Law enforcement officers are entitled to use reasonable force, but not deadly force in every situation. Deadly force is the last choice. It seems to be the first response, too often. Citizens must be able to trust the police to enforce the law, not to take it into their own hands. And there is no excuse for shooting unarmed people who do not pose a risk of serious injury or death to the officer. All lives matter. That’s why officers are called on to protect, serve and lead.

And it is not just urban areas where officers shoot first and lie later.

In rural Idaho, Jack Yantis’s life mattered. It mattered enough that local law enforcement officers should have been better trained and better educated on the law. They should have been better supervised. They should not have killed a man called by the Sheriff to help them. They should never have shot Jack Yantis. They should have known that he was there, with his rifle, to do what he had been asked to do – take down his bull – the same bull that officers had shot and wounded after it had been hit by a car on the highway.

The folks who enforce the law; Idaho’s Attorney General, and the United States Attorney should act. Act. Now.

Eight months later neither office has been willing to let Idaho jurors decide whether officers in Council, Idaho acted within the narrow confines that are required to justify their having killed Jack Yantis. Deadly force must be the last choice, not the first.

And yes, I have skin in the game. I am one of the lawyers representing Jack’s survivors, including his wife Donna Yantis, and his nephew Rowdy Paradis.

Police officers need to get back to being our protectors, our friends, part of our lives. A traffic stop should not result in the death of a passenger asked to produce identification.