Someone asked me today what he should do about a letter he received "inviting" him to appear at a federal grand jury.  To appear or not appear, that is the question.  Not really!  When a federal prosecutor has you in his or her sights, you may get a "target" letter, letting you know that your liberty is in the balance.  You are a suspect.  You are the "target" of a federal investigation.  They want to question you under oath and without a lawyer.  And whatever you say "can and will be used against you in a court of law."  Translation:  you are in a world of hurt.  Under the US Constitution, a federal felony charge arises when a secret grand jury returns a "true bill" requiring you to appear and defend against federal criminal charges.  So if invited, should you go to the party?  No – unless your criminal defense attorney has a really great reason for you to play along.  That happens occasionally.  It did for me once this past year, when I went along and watched a really great "suspect" tell his story to the satisfaction of the grand jury.  Mind you I was not in the room.  No defense attorneys are allowed and the witness is literally on his or her own.  But once in a while – a really great while – there is a suspect who has the inherent ability and preparation that allows the story to be told and not end in indictment. Such was the case with my client – who just happened to not be guilty of any crime.  

Invited to appear? Get an experienced lawyer fast.  Nothing good comes from federal grand juries in the usual circumstances. So do not assume that you can talk your way out of trouble. It’s like they say – you have the right to remain silent, but can you keep your mouth shut?  A buddy of mine tells clients that an invitation from the feds to appear at the grand jury is the "rainy day" you’ve been saving for.  Put away a little money for a rainy day?  Get it out.  If the feds are inviting you to their party – it’s pouring.  Time to invest in a good criminal defense lawyer. 

In an interesting Idaho Court of Appeals decision, the writing is on the wall for anyone cutting a cooperation deal that requires the Defendant to assist a drug task force by “identifying, apprehending, and convicting those people involved in the use, distribution, and manufacture of controlled substances.” No drugs – no deal!  In State v. Chacon, Judge Lansing finds that the appellant had breached his cooperation agreement with the State when he was unable to buy dope as directed by the drug task force. Instead of a recommendation of five years fixed (twenty more indeterminate), the court upheld a sentence of fifteen fixed and twenty years indeterminate. Chacon, the Court reasoned, had breached his agreement. For his part, Chacon argued that it was impossible to perform because the good folks in the drug community figured he likely had some reason for his release from jail pending the outcome of the case. They were right – he had made a deal to dance, but the community cut off his legs.  Nobody wanted to sell him drugs. My only question about this case is whether Chacon’s breach was intentional. Sure – he agreed to buy dope and help out the task force, but sometimes, no matter how hard they work at it, informants cannot get it done. The opinion suggests Chacon did not work very hard at this, so perhaps the result is not unexpected.  Still, there is a good lesson here – a defendant’s failure to live up to the terms of his cooperation agreement will likely not be excused.  There appears little room to argue about whether performance was impossible. More importantly for criminal defense lawyers with clients looking for an earlier release based on cooperation, make certain that your client can get it done.

 

I was just looking at Virginia Attorney Bob Battle’s website, and his advice on choosing a lawyer to represent you if you are charged with driving under the influence.  The advice makes sense whether you are headed to court in the great South or the Northwest.  Survey says:  choose wisely!  As a client in a criminal case in Idaho, you want to hire an experienced lawyer.  Some Boise lawyers send out letters everyday to anyone charged with a crime.  They get that list of potential clients at the courthouse and then send off a FORM letter that may scare you into jumping into their caseload.  Don’t jump. Think! Why are those lawyers "fishing" for clients anyway?  Successful and experienced lawyers (criminal and otherwise) get clients from their reputations and by referral.  Just how many TRIALS have they had this year?  What were the results?  And will they be handling the case or passing it off to an associate?  Look, it’s your case, and your life.  Why would you entrust it to any lawyer who could not give you the answers you deserve?  Here’s our pitch:  Hire me for the experience and you get just that; me and twenty-seven years in the courtroom. 

So what kind of cases have I handled?  In the past five years the cases have included murder, manslaughter, racketeering, drug possession and trafficking, fraud, medicaid fraud, illegal possession of guns and ammunition, sex offenses, DUI, domestic battery, assault, aggravated assault, and other misdemeanors.  Civil case?  Wrongful death, ski injuries, defective design of Ford Expedition, personal injury automobile accident, truck accidents, defamation, malpractice, breach of contract, fraud, and defective products.  Need a lawyer?  Like Bob Battle says, choose wisely.   

I just returned from a meeting of the Idaho Criminal Rules Committee during which we considered a question posed by a Magistrate Judge:  Why do we waste valuable court time with preliminary hearings?  Couldn’t we just eliminate them and reduce the court’s work?  Sure – and maybe we should just get rid of those nagging, time consuming jury trials!  Seriously though, what is the point of the preliminary hearing, at which a Magistrate Judge determines probable cause, when in reality that has occurred already in the process.  The Committee uniformly agreed that the preliminary hearing serves several very important purposes.  First, it allows the Defendant an opportunity to contest the allegations against him for the very first time.  His (or her) lawyer can cross-examine and confront witnesses on whose statements were relied for the initial probable cause determination. You don’t get that opportunity with a "secret Grand Jury."  Second, it allows the lawyers and the Defendant an opportunity to talk about the case and the evidence.  We almost always have an offer to settle the case at the preliminary hearing – so it serves to bring the parties together as if to potentially mediate the matter.  Third, the preliminary hearing allows the Defendant a chance to consider the bail set initially, and present evidence why bail should be reduced.  That is vital to the Defendant, who is often still in jail!  So the preliminary hearing is an important part of due process – and the Magistrate who posed the question will likely be unhappy to hear that we all agreed, and by all, I mean the judges, magistrates, prosecutors, public defenders and private counsel on the committee. The preliminary hearing will continue to be the first chance for a defendant to prove his or her case.  I know – the defendant does not have to prove anything!  Nice theory!  Let’s talk about that soon.  If you are facing a felony charge get ready to start winning your case at the preliminary hearing – still coming to a courtroom near you!

I had this issue again, yesterday, in a Boise DUI (driving under influence) case before an Ada County Magistrate Judge.  The answer may not be as simple as the City of Boise would argue.  They contend that an arrest does not occur until the handcuffs are on the defendant – and that usually does not occur until after the field sobriety tests.  Accordingly, the defendant is not in "custody" and there is no obligation to provide Miranda warnings.  My case involved a defendant who had been arrested going the wrong way down a one way street in Boise, after 2:00 a.m.  With the bars closing and his driving pattern, the officer made a stop with his lights flashing and approached the car.  He testified that he smelled the odor of alcohol, and that he observed the bloodshot and glassy eyes of my client.  His next question:  Have you been drinking tonight?  Was there a duty to advise the defendant of his right to remain silent?  Answer:  not yet.  The judge ruled that there was no arrest for Miranda purposes until further investigation had occurred.  That "investigation" was the officer administered field sobriety tests.  Statements made by my client during those tests are admissible, as is the breathalizer result.  The message here – you are not going to hear the officer tell you that you may remain silent until after you have taken the field sobriety tests.  Of course the case has not been tried yet, and the breathalizer results are not 100% accurate.  Still at issue – whether the state must provide the source code for the Intoxalizer 5000, and whether the defendant’s BAC is admissable and enough to prove that he was operating the car while intoxicated.  Don’t drink and drive.  The cost is simply too high.  Have a question about drinking and driving in Boise Idaho?  Comment or send me an email.

I was at the beach – Mission Beach to be precise – and relaxing with my bride over the weekend. The sun was shining and the sea air cooling, but like all good things – that too came to an end on Monday.  I am now in Nevada, taking depositions in a crop insurance fraud case.  There is lots of sand, but no beach.  Lots of hot air (in the depositions), and no ocean.  With no surf and no run on the beach, today I am thinking about last week’s sentencing before US District Judge Winmill, in a case involving trafficking in counterfeit goods.  My client went to trial last spring on one count of conspiracy to traffick in counterfeit goods (t-shirts bearing unlicensed marks, like Polo, Gap etc…) and six counts of trafficking.  At issue – a couple thousand t-shirts that he purchased from Main Sportswear in Los Angeles. Client gave the Feds the address and phone number for Main Sportswear, and we sent an investigator to buy some more before trial.  When the trial ended, my client’s wife was acquitted of all charges (he had consistently taken the blame), and he was not guilty of conspiracy.  He was, however, guilty of trafficking.  And that meant a chance to re-visit the federal sentencing guidelines. Now the law has changed markedly over the past few years, and perhaps the nail in the coffin of those dreaded, formerly mandatory guidelines, is the Supreme Court’s analysis in Gall v. United States, 128 S.Ct. 586 (2007).  Gall had been a middleman in a drug trafficking conspiracy, and even with his plea of guilty, acceptance of responsibility, and substantial assistance, his guideline range was 30 – 37 months of incarceration.  The district judge looked at the changes in Gall’s life – he was in college, had started a successful business, and had otherwise turned it completely around – and placed him on probation.  As you may imagine, the US was not happy.  They believed a sentence that imposed no incarceration and 36 months of PROBATION was an unacceptable departure. Justice Stephen’s majority decision adopts an abuse of discretion standard for appellate review. End result – we have a new methodology for district courts applying the guidelines in every case. We still start with the guidelines, taking into account specific offense characteristics and bases for departures, but then we look at the sentencing factors under 18 U.S.C. Section 3553(a).  So judges may be judges again.  They are instructed under the law to consider the person they are sentencing as well as the crime, the deterrent effect on the defendant and the community, and the circumstances surrounding the crime.  Then, even without a departure, the court must fashion a sentence that is just – necessary, but not excessive.  And this allows the court to make the punishment fit the crime and the defendant.

And that is what happened with my client.  The Court did not bind itself to the guidelines, but rather took into account the specific conduct, its impact on the trademark owners, and my client’s otherwise law-abiding conduct.  The US wanted 27 months of imprisonment for my client. That incarceration would have meant his certain deportation.  The Court’s sentence included 9 months of home arrest and 1 month of actual incarceration.  He will pay restitution and a fine, and hopefully, he will not be deported.  You see his wife (acquitted) is a US Citizen, but he is not.  While on home arrest, he can continue to do what he has for over twenty years –  run his little alterations shop, pay his taxes, and continue to be part of the community.  He may still face deportation, but those formerly mandatory guidelines did not result in the certainty of incarceration and deportation.  His crime and his life are now placed in context – that is to say considered with the other factors surrounding the case.  My hope is that the immigration consequences may also consider those factors.  If you have a federal case and are facing the potential of federal sentencing under the existing law – there is good news in the Gall case and its progeny.  Your life may mean something  in determining your ultimate fate if you are convicted.  Maybe you will see the beach again – and not just the sand.

 Another week starts with a new focus – crime victims.  I am drafting a complaint in a case for a victim of a terrible crime.  She is young, and hurt and humiliated, and she is deserving of the very best chance at a future she can possibly have.  Our lawsuit may be that chance.  Crime victims are so frequently scarred emotionally and physically, and their ability to recover for their damages is almost always limited because the perpetrators so seldom have any money or property.  You see the problem with this system is simple – justice only comes in dollars on the civil side.  Great liability and huge damages will not result in any justice unless the defendant has something you can grab. There is that great line from To Kill A Mockingbird (I think!):  "Whatta’ ya’ got?  Give it ta’ me!"  And that’s my plan – take it all away from the guy who hurt her.  I probably won’t be able to get it all – but this time – we are gonna’ try. Victims like my client have huge problems in their futures.  They have problems trusting men and women in whom they would otherwise place trust.  They suck at relationships.  They do not complete what they start – like education and jobs.  And they have trouble parenting their own kids.  In general, they are left in a state of fear, self doubt and confusion.  So how can the system help?  Simple – give them the money they will need to get counseling, training, and education.  Compensate them for the lost earnings and opportunities that they will miss because of the crimes perpetrated against them.   Money.  There is nothing else on the civil side – and with the likely criminal outcome resulting in the perp spending a long term at a state warehouse – or penitentiary – he won’t need that money as badly as the little girl whose life he so easily stole.  Wierd post for a criminal defense lawyer?  Yeah – I suppose, but most of us in the criminal court system are focussed on justice. Somedays justice takes a bite out of a guy like this.  Those tooth marks on his butt – those will be mine.  Complaint to follow.

OK – back from TLC and re-entry is a bit troubling, but a trial is just the thing to check out those skills.  Like putting the witness back in the scene and having him or her take you through, in first person, what they see.  So today I had to try a little misdemeanor case.  Two 50 year old guys complained mightily to the police that my 70 year old client had "battered" them at a bar.  The real deal was their damages.  That’s right – around $5000 worth of medical tests to determine that they had no real injuries, save their pride.  So without any offer to plead the case to something reasonable – like disturbing the peace – we rolled the dice.  Now even a goofy trial like this takes time to prepare for and time to try.  Start your clocks at around 7:00 am this morning, and shut them off around 7:30 pm.  In the end the jury saw it our way.  Not Guilty.  There are no two better words to hear when forced to trial on some goofy, miserable, meandering river of a misdemeanor jury trial.  NOT GUILTY.  BUT how you may ask?  Client admitted that he hit one of the gentlemen on the chin.  Client also admitted that he moved toward gentleman number two and two fell down.  So what about it?  TLC.  Just some good easy listening to their testimony and the resulting cross in which number one admitted he moved toward Defendant "and then Defendant hit me."  That "movement" ultimately looked like number one wanted to attack my client.  And two – well he simply told a way different story, under oath, than had number one.  He impeached number one on key points.  And the jurors heads nodded, and their eyes rolled, and it was clear they did not believe either number one or two.  Just listen … and you will be surprised what you hear in court.  So maybe my next blog will come sooner – I know it will as I am now working on a very nice CRIME VICTIM’S CASE.  Civil complaint to follow – within a week or so.  But tonight I am thinking about today’s victory.  If you face the state in a criminal case, better be ready to ride the waves.  When they stop coming in big sets, you may hear that jury say NOT GUILTY.

In the office today and again thinking about what I learned and how it will help my clients. I just was sent a copy of a newspaper story on the Ruby Ridge case. Gerry Spence and I tried this case fifteen years ago. Here is how they described my cross-examination technique then: “Spence’s second is Chuck Peterson, who riddles hostile witnesses with barrages of questions and telegraphs his message to jurors with a blend of smirks and rolled eyes. In this case, the lawyers know the meek will inherit nothing.” What I have since learned is that “soft cross” is better than the standard “hard cross” if you want the jury to like you. Kill them with kindness. Tell your story but don’t kill the witness. Intuitively most cross-examination is directed at the witness in anger, leading you to abandon the story. But the key to every case is the story, not the ability of the lawyer to slice and dice a lying witness. I have long ago returned to the side of the meek, believing that the story is almost always more important than the denials. And now, with a month of working on TLC techniques, I can’t wait to “soft cross” the next informant.