A couple weeks ago I tried a criminal case that alleged my client had unlawfully taken a trophy deer (by hunting with an unlicensed guide) and had aided a thirteen-year-old girl unlawfully take an elk by using his tag on an elk the State said she killed. The jury found my client NOT GUILTY on both counts, but what amazed me was the fact potential jurors had lied about their own criminal charges.

A questionnaire sent to persons called for jury service were asked a very simple question: Have you ever been a defendant in a criminal case? Three of the 24 persons who answered "no" actually had been charged with crimes. I had their records. One other juror admitted he had been a criminal defendant but said it involved only a "bar fight." This guy had several other charges in other cases – none of which he disclosed.

Jurors lie. 

They do the same stuff we all do when confronted with our failures. They minimize their own misbehavior.

Knowing this can be an important guide when making peremptory challenges. Those are the challenges for no particular cause that has to be disclosed. My thinking at the time was that a man who did not want to disclose his DUI charges would probably line up more with my client than the State’s Fish and Game "detective." In the end, I left one of those "non-disclosers" on the jury, and I think it was a good call. People who have had a run in with the law are less likely (I think) to believe the Defendant got a fair shake by those investigating his case. If a juror thinks the defendant was not treated fairly, the state’s case will suffer. When that happens, the defense has a chance. And when you have a chance you need to exploit that opportunity to hear the magical words, "not guilty."

By the way – those Fish and Game officers tend to wander a ways from the truth too.

In this case, the investigator swore he had NOT threatened to go and arrest the thirteen-year-old girl who allegedly shot the elk. When I asked him, under oath, he protested he did not tell her father he would charge her with the crime – a fact that her father (who was not a defendant in the case at trial) testified was false. He said the Fish and Game officer had done exactly what he swore he had not. He was telling that jury they could not believe the officer.

When it was all over, the jurors did not believe the Fish and Game guy. They believed he had lied about the threat. They chose my client’s version over his. When that happens the State loses. In a sense the case was more about the F&G officer’s testimony than it was about who shot the elk – by the way, it wasn’t the girl. 

Here’s my take away – the best defense at trial is preparation. Be ready for the jurors who can’t recall having been defendants, and be ready for investigators who have threatened their prey with arrest or worse if they don’t cooperate. 

Be ready for trial. Know all the facts. Know the law, and figure out how the facts of your case and the law collide. Then get ready to win your case.

 

 The news tonight declares that Kennedy cousin Michael Skakel has won a new trial because his criminal defense lawyer did not do enough to provide an effective defense. Robert F. Kennedy was his uncle. Mr. Skakel was convicted of the murder of Martha Moxley in 1975. She was beaten to death with a golf club after she and friends attended a Halloween party at the Skakel home.

Mr. Skakel was convicted in 2002. I actually met Michael Skakel in the fall of 2000 at a reception for incoming students at a New Hampshire school my son and his daughter attended. The word on the street then was that he would be charged, and the word became truth sometime later. He was convicted and sentenced to 20 years to life. Martha Moxley’s death remained "unsolved" until the conviction some 27 years later. 

But now about that conviction – you see a criminal defense lawyer has a duty to provide the "effective assistance of counsel" as he represents his or her client. That means more than just going through the motions (forgive the pun). It means the defense lawyer has to work his or her butt off to learn the facts, learn the law and figure out how the two marry-up. It means the lawyer needs, in the words of the Judge ordering a new trial, "attention to detail, an energetic investigation and a coherent plan of defense."

If you are charged with a crime, you don’t need a celebrity, you need a fighter. Someone who will turn over the rocks and figure out how to save your bacon. You need a committed advocate. A beast. Someone who can take a body blow or two and keep advancing. You need a soldier.

And the court in Skakel’s case said Michael did not have that. His lawyer didn’t do that according to the judge. Did he? Can’t say. I wasn’t there. 

But you know what this means? Skakel has another chance to find his fighter. He has another chance at convincing a jury he is innocent. I know – he doesn’t have to prove anything as the defendant, but don’t kid yourself. He’s got "some ‘splainin’ to do." 

Unless of course, the next appellate court says otherwise. He is still in prison, awaiting the State’s next move and a potential decision on bond reduction.

What should you take away from this news? Two things:

First, choose your lawyer carefully. Insist on someone who will do battle for you, who would lead a party of warriors into Hell to find you. Anything less will not give you the edge you need to stay in the game.

Second, in the words of General Eisenhower, "Never, ever quit."

Skakel has maintained his innocence the entire time. He didn’t get parole at ten years, in part because he would not admit any involvement in Ms. Moxley’s death. He never quit believing and trying to clear his name.

Honestly, most criminal defense lawyers work their cases and try to win. The biggest impediment to being fully prepared is money. You buy time when you buy that lawyer, and the more time you can afford the better your chances of winning. 

Got a case? Want to talk? Call us? We focus on building a winning case.

 

The National Highway Transportation Safety Administration (NHTSA) has a publication that lists the "symptoms" of drunk driving officers are trained to watch for in "driving pattern." Each "symptom" has been given a value NHTSA says represents the likelihood a driver exhibiting that driving pattern is under the influence of alcohol or drugs.

Here is the list from the Department of Transportation Publication (DOT HS-805-711) used to train law enforcement officers to identify intoxicated drivers:

Turning with wide radius     65
Straddling center or lane marker     65
Appearing to be drunk     60
Almost striking object or vehicle     60
Weaving     60
Driving on other than designated roadway     55
Swerving     55
Slow speed (more than 10mph below limit)     50
Stopping (without cause) in traffic lane     50
Drifting     50
Following too closely     45
Tires on center or land marker     45
Braking erratically     45
Driving into opposing or crossing traffic     45
Signalling inconsistent with driving actions     40
Stopping inappropriately (other than in lane)     35
Turning abruptly or illegally     35
Accelerating or decelerating rapidly     30
Headlights off     30

 

So here is how this works – if an officer sees you driving into opposing or crossing traffic, NHTSA educates officers that 45 times out of 100, the driver (you or me) is operating under the influence. It doesn’t matter the time of day, or the day of the week, NHTSA trains officers to believe that this stuff is "science.

Bull!
 
In Boise, it seems like the most relied upon reason to stop a person for suspected DUI is driving after midnight. This is really the case if the driver is in the downtown corridor or near Boise State University. 
 
I watched a Boise cop make a wide turn the other morning on the way to work. It was around 6:15 am, but I gave him or her the benefit of the doubt. I never once thought "65 times out of 100 that officer is operating his cruiser under the influence of alcohol." According to NHTSA science, I should have.
 
Here’s the topper – NHTSA says that if you see two of the "symptoms" you take the higher of the two and add 10 points. So if that same officer was "drifting" as he made the wide turn, his likelihood of being a drunk driver would be 75 percent. 
 
More bull!
 
When I hear judges, prosecutors or cops talk about junk science, I want to direct them to NHTSA! 
 
So be careful out there. Not every law enforcement officer will suspect you are a drunk driver just because you "stop inappropriately" (whatever that is), but some of those with NHTSA training might.
 
A drunk driving conviction is a costly misadventure. Don’t drink and drive. 
 
If you have questions about a charge of driving under the influence in Idaho, give us a call. We can help you sort out the fact from fiction.
 
 

 

 

I had a call today from a client we are defending who is charged with driving under the influence of alcohol or drugs (DUI). This case is a little different than the usual DUI because the intoxicating substances charged include several commonly prescribed medications and an over-the-counter antihistamine (containing diphenhydramine). The State has laboratory reports showing these medications were present in the client’s blood, but present in what amount? In an amount that would produce intoxication?

I bet that they don’t have an expert to establish the amount of any of the medications found in our client’s bloodstream would cause intoxication, but we can’t simply wait to find out. We have already filed requests for discovery that should require the prosecutors to tell us the information we need, but our next step seems certain: Enter the expert. 

In this case we will need a toxicologist or pharmacologist to testify about the levels of such drugs likely in my client’s blood stream at the time of his accident (did I mention he was involved in an accident). Without an expert to testify for the State or for the Defendant – there is no way for a jury to decide the question of whether the levels detected would have caused intoxication and affected driving.

Here are three reasons to hire an expert in your DUI case:

First – your lawyer cannot testify, and it is testimony that you need to win. Proof. While there is no requirement that a defendant ever prove anything at trial, don’t kid yourself. If you are on trial you need a defense. You need the best defense you can afford, so hire a great lawyer and be ready to hire a great expert to make your case.

Second – an expert offers opinion evidence that most jurors take to be fact. Based on his or her special training, education and experience an expert can explain to jurors why the state is wrong and why you are not guilty. The judge will tell them that the testimony is an opinion, and it is, but that opinion is often the difference between winning and losing.

Third – just hiring and disclosing an expert witness to the State may be enough for them to offer you a way out, short of the DUI. Think of it this way – prosecutors have lots of cases and they don’t have the time nor resources to try even a tenth of those cases. At some point they just see a case, not a defendant. If the case goes away, their is another one to move up the ladder and "be resolved."

And that’s your advantage in hiring an attorney who will fight for you. We represent you. We will take the steps necessary to build a defense, and if that means we hire an expert witness than that is what we do. 

If you are charged with a DUI, Inattentive Driving, Driving without privileges or some other criminal charge, call us at 208-342-4633 and let our years of experience work for you!

 Just a quick thanks to the folks at the Idaho Statesman for their recent coverage of Peterson Lawyers – or "Dad and Daughter at Law." Click the link to see the article and learn more about us if you haven’t done so.

We really had a great time with their reporter, although those low, wide-angle shots don’t do much for me (or Courtney)!  Still, there is a point to all that jazz – I think that lawyers should focus on being problem solvers, not just advocates. Here’s the point, placing your case in the hands of twelve people is risky and frightening. So a solution that makes the best of a bad situation is often the best solution.

On the other hand, there is no substitute for experience. Any legal matter placed in the hands of someone with actual trial time stands a better chance of success. 

If you have a legal matter and need some help, give us a call.

 

Continue Reading Thanks Idaho Statesman – Peterson Lawyers Focussed on Criminal Defense

 

For years we have been happy to be recognized for our work by inclusion in the annual edition of Best Lawyers in America. This collaboration of U.S. News & World Reports, the New York Times, Washington Post and others selects lawyers and law firms that are leaders in their areas of practice.

For 2013 that recognition went a little further in our primary practice area as criminal defense Lawyer of the Year in Boise. 

For 2014 we were again recognized by Best Lawyers in America for our representation in the criminal defense area. 

Thanks Best Lawyers – and thanks to our clients, lawyer friends and foes, and the occasional jurist who provided their input. And thanks Courtney and Patty for all you do to make it fun to be a lawyer.

 

Continue Reading Thanks Best Lawyers in America – we appreciate the recognition

 So I took a little break from blogging about criminal defense, DUI defense, civil trials and matters of wrongful death. And then things just started "popping up." A new case or twelve. A kid in jail who just could not get it together. A former Marine facing life changing decisions. The mentally ill – fearing life and death as they try to remember why they are sitting in jail awaiting a trial that seems never to come. Murder. Designer drugs – did they cross the line? A power plant that didn’t. And time for playing in McCall with my three grandkids – who now enjoy riding Big Mabel (a "tube" of sorts that skips along the water behind my aging MasterCraft). 

But now – even as I face the biggest case of my life – it seems right to do this all over again.

So I am back.

Here are three things I learned over the past five or so months that might help you practice law (if you have a shingle) or find the right warrior to advance your case if you have been charged with a crime or injured because some other guy wasn’t paying attention:

First – all that stuff I believe about the value of a person’s story as it relates to his or her case is in fact, the most important stuff. After a recent trial I got a call from another lawyer who had sat in the courtroom and watched me cross-examine a couple witnesses. "Your client never needed to testify," she said. "You told his story with the witnesses, even when they refused to answer your questions." 

The story is the key. Sometimes it won’t be enough to win, but without the story you don’t have a chance. Maybe your have been charged with a simple battery. A bar fight started and you tried to help a friend who was too drunk and too small for that bull of man who ran his mouth and then his fists. The story is not the fight – it is all that stuff that got him to the decision point: swing and defend a friend or run and hide. If the jury doesn’t hear the story, smell that bar, taste the stale beer in the air and smoke in your lungs – well – without that stuff you lose.

Second – jury instructions are a mess, no matter what we do! As lawyers we have to do a better job drafting our model instructions. When you are on the defense it seems like a waste of time to bother drafting instructions anymore because every judge simply refuses to not follow the advice of the Supremes: "just give the IDJI." The Idaho Jury Instructions are no better or worse than any other set of instructions drafted by prosecutors and judges, but they are no help to defendants. In each of my last four trials the jury has asked for further instructions – and the judges and lawyers (me too) have all refused to go further because to do so will invite an overturned verdict.

I don’t have an answer to this problem except for us as lawyers to try harder to get instructions that are informative, and crafted in language that people will understand. Sometime not too long ago I wrote about "Normans and Saxons." Read that stuff if you have the interest in being a better lawyer, not because I wrote it, but because a Judge who understands language said it better than I can.

Third – misdemeanor defendants do not quite understand how much impact that misdemeanor conviction can have on their lives. One in four Americans now has a criminal conviction. Most of those folks committed crimes that are misdemeanors. Little stuff. Right? 

Maybe not. I get so many inquiries each week from folks who want – NEED – to get their records "expunged" to move forward in their lives that I cannot really get to them all. I could probably just hire a young lawyer to do the Idaho expungement dance, but that dance does not really get rid of your conviction and almost nobody disagrees that more must be done here by the legislature. Let’s push next session to try and get some real relief. I say this especially in view of the actions by Washington and Colorado to legalize marijuana. We have a lot of pot related "criminals" who will suffer from that conviction stigma for their lives. 

Time to do better. 

Summer’s over and until there is snow, we have time to get back to being trial lawyers. 

But let me ask you this: are trial lawyers a thing of the past?

How many trials have you completed this year?

And won’t e-discovery simply end the practice of law entirely? Sifting through tens of thousands of documents is not what we were trained to do and the costs associated with that effort threatens to end the use of trial procedures to "resolve" disputes.

Guess I am back. 

 It happened a couple weeks ago in Canyon County. Our client faced felony charges for aggravated assault with a deadly weapon and a misdemeanor malicious injury to property count. The case involved an argument between ex-spouses that ended with one spouse refusing to leave the other’s property. The "trespassing" spouse acknowledged she had been repeatedly asked to leave but she would not. Finally my client went upstairs and brought a handgun to the kitchen. She still did not leave. She had taken his cell phone so he could not call for help and he had a broken leg. Finally, he went next door and got help. 

The case is really about a claim that my client pointed a gun at his ex and said he was going to kill her. That story had changed from when she told the police officers that he had said "nothing" while pointing the gun at her, to "you’re gonna’ die…." Good cross-examination using the prior "nothing" statement showed the inconsistency and the jury understood the facts were not as she portrayed. 

The property that was alleged to have been injured was my client’s keys. So the essence of that charge was that he injured his own property. 

Not Guilty.

Those are the nicest words at trial. Still, a lot of time and effort was required to get there. Fortunately our client could hang in there. 

Here is a lesson I learned during the trial – do not go gently into that arena. Be nice and tell your story, but if you have to get a little tough with the complaining witness, be ready to do so. I don’t mean badger the witness for that never gets results, but be ready to stand your ground.

And tell your story. Our client’s story was pretty simple – she absolutely would not leave and she had taken his phone to prevent him from calling the police.

No time to rest on that little laurel, but happy to report the victory.

 

Continue Reading First Trial For Us This Year – NOT GUILTY – Aggravated Assault and Malicious Injury to Property

 

Years ago I was getting ready for a monster trial – pitting the ultimate power of the United States against a little guy who held out in the face of an all out attack on his home. People died. Protestors gathered. Television cameras rolled and major magazines wrote headlines in anticipation of an almost certain end. Tanks and helicopters ferried officers  and snipers about until the thing finally ended. 

As the time for trial neared – nearly nine months after the siege – the question of whether we could settle the case arose. The Sage – a burley mountain man of a lawyer who was our leader – looked me square in the eyes and said it best: 

"We only go to trial if we have to. If we can settle any case and walk away with our heads up, that’s what we do."

To win your case at trial you have to know if it can be won. Then again – what is winning?

If you are charged with aggravated assault with a deadly weapon (pointing a gun at someone, a felony) and the government offers to accept a plea to simple assault (a misdemeanor), should you go to trial? I suppose it depends on your tolerance for the pain of a possible felony conviction. Sometimes you know that what you did went too far, and you can swallow a little crow and pay a small price to avoid the possibility of a felony conviction. Sometimes you can’t. And sometimes the government makes that decision for you – they refuse to negotiate and settle. 

Then you try your case.

Here’s the starting point: is there an alternative to trial? 

Last summer we prepared for a wrongful death trial in Wyoming. Our clients had lost their son while he was skiing at a well-known ski resort. This was the second such case we had handled against that resort in the past five years or so. In each case, the lawyers were the same, the decision-makers were the same, even the experts were the same. Two lives lost. Families destroyed. The ski industry almost never settles until you are almost at trial. They spend money defending their industry, even in the face of an unnecessary death. 

The case settled just a few weeks before the trial was to start. Why? Because each side understood the risk of going to trial. We all knew that juries are impossible to predict, regardless of how many mock trials or focus groups are done. And we did not have to try the case to win.

Our clients had already lost their son. They wanted a resolution that mostly included an acknowledgement of their loss and the defendants’ partial responsibility. A mediated settlement achieved that solution. 

If you have a case – civil or criminal – and a trial is your only way out, by all means, go and fight and do everything you can to "win." But after 31 years in the courts, I can tall you the Sage is right. If there is another solution, explore that option first. 

Think you have a civil case? Wrongful death? Personal injury? Wrongful discharge? Or a criminal matter? Maybe we can help you win – whether you go to court or not.

 

Continue Reading Win Your Case – go to trial if there is no other way out!

 I spent the weekend at a seminar that paired younger lawyers with more seasoned "mentors," lawyers and judges who generally had more gray hair than not. There were criminal lawyers and civil lawyers, district judges, a Chief Justice of the Supreme Court and a Ninth Circuit legend. The focus of my group was communication. If the jurors don’t understand you – whether you are the lawyer or the litigant – you cannot win.

To win, you must tell your story in a way the jury will understand.

Here are three things I took away from the weekend:

First – we lawyers are Normans, speaking to Saxons, and without much luck if left to our own devices. Special thanks here to Hon. Jon Shindurling, 7th District Judge. "It all goes back to the Norman conquest…" I think he’s right. The educated Normans conquered the Saxons and they became the educated ruling class in Europe (and America) ever after. Think Downton Abbey – upstairs, the Normans, downstairs – Saxons.

Most of us started as Saxons and learned the language of the Normans in college and law school. The problem is our juries are largely composed of Saxons – so we have to focus our language to communicate better with the folks who will decide the case. If your jury cannot understand you, you cannot move them.

Second – there are a lot of really great trial lawyers in Idaho! I watched a couple of closing arguments made by presenters with big skills. Nice to be among them for the weekend and it was encouraging to see how much time was willingly exchanged to help all of us get better at this craft.

Third – I would pay money to go and hear Hon. Randy Smith (9th Circuit) speak. He is a legendary trial lawyer who became a state district judge until lightening struck, and he ascended to the Court of Appeals. I hope to soon post a copy of his handout on standards of review for appeals. He was brutally honest about the likelihood of succeeding on appeal, as well as the obligation of the trial lawyer to understand and apply the correct standard of review. His message left me more convinced than ever that you must win your case at trial. You cannot wait for an appeals court to "correct" the jury.

Now back to work – I’ve got bad habits to erase and cases to prepare.

 

Continue Reading In Civil or Criminal Trials – Communication Matters