This weekend I received an inquiry from someone who had been convicted after the judge instructed the jury it could find him guilty of DUI even if it did not find he had a breath alcohol level above .08%. He complained that by instructing the jury on the alternate theory – that his driving pattern established he was operating a
Continue Reading “Can I be convicted of DUI if I blow less than .08?”
Back in June of 2009, I posted that Zachary Neagle had become a client. He was charged with murder – having shot his father in the head as he was asleep on a couch in their home. The case presented the ultimate challenge; convincing folks that Zach killed his father to protect his younger brother and sister from the sexual assaults he had been subjected to. Zach was charged as an adult, but the picture shows just how juvenile he was, wrapped in chains and clad in a yellow jumpsuit. He was just a kid.
Idaho law provided that if Zach went to trial and lost – a jury not believing he had to kill to protect his siblings – he would serve a life sentence in an adult prison. Ultimately we settled the case for a blended sentence that placed Zach with Idaho Juvenile Corrections. He plead guilty to manslaughter. If he did well in Juvenile Corrections, he had a chance to avoid adult prison and could be placed on adult probation.
As I noted in January of 2011, Zach was working hard in the Juvenile Corrections world to build a life. He was going to school, and working on the skills he would need to re-enter the world. I hoped someday he would leave confinement and be free – at least free of jails, prisons or corrections centers.
August 1st was my birthday, and it was the day Zach ended his time in juvenile corrections and began adult probation as part of his sentence. I would like to report that the transition to real life (albeit on probation) has been seamless, but it has not. It may take some time. He has a good job, has supporters who care and love him, and he has a chance. But he has to work at this. Any mistake could land him in jail or worse, adult prison, the very place we have been trying to avoid since Charles Crafts called me that June day more than five years ago.
Since so many of you call, ask and write, I wanted to report that he is making it. So far.
Now he needs to work at staying free. He needs to fly right and stay out of any trouble.
Continue Reading Zach Neagle is Free – Now He Must Work to Stay Free
Ever wonder why every drug arrest begins with a traffic stop? Because all too often the police stop first and provide some reason later! If the drug task force decides to effect an arrest, they call the ISP or locals and have them do a traffic stop. Then, they give a "reason" for the stop – a reason that is
Continue Reading Idaho State Police stop to check on temporary license gets tossed!
Once again we see that our right to be free from unreasonable search and seizure finds too few friends in the United States Supreme Court. The issue in Navarette v. California, decided this week, was whether the fourth amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate the claim of
Continue Reading Supremes Say Your Truck Can Be Stopped On An Anonymous Report
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
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
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
You may recall that last summer, local politico John McGee was ordered to spend at least 44 days in jail before being eligible for either work release or the Sheriff’s Inmate Labor Detachment. This was not how the sentencing was expected to go. McGee had a plea agreement! A deal!
We lawyers warn our clients that the judge is not bound by the agreement but I have occasionally soft pedaled that truth. After all, a judge going beyond what the parties recommend is extremely rare. When that happens, there is usually a deafening silence followed by the "whiskey, tango, foxtrot" moment.
It apparently happened that day last July. McGee was to be the beneficiary of a deal that was negotiated by the prosecutor and defense counsel. That deal called for McGee to do five (5) days in jail, not 44 and certainly not 88 as the court ordered. Mr. McGee actually served 44 days before his release, but that result depended upon the good graces of the court and the good actions of the former State Senator.
Maybe Judge Cawthon had simply had enough of the McGee’s misdeeds, this time while on probation following the mother of all plea agreements for his plea to DUI in 2011. The Court said it was simply making McGee accountable to the same degree any other public servant should be accountable. McGee had promised to obey the law, at least until July when his probation would have ended.
Actually, the take away here has nothing to do with the pratfalls of Mr. McGee. He has completed his service and done so with dignity. He didn’t go nuts or whine about that unexpected jail sentence.
Just remember this – the Judge is really NOT bound by the plea agreement. He may go above or below the anticipated sentence. Mr. McGee, the prosecutor and defense counsel all expected that Judge Cawthon would follow their recommendation. He didn’t, and McGee was cuffed and lugged away to begin his sentence while he and those around him could only wonder why it hadn’t gone as planned.
I had this happen to me and it hit me and my client hard. The deal called for my client to plead guilty to a felony in exchange for a recommended sentence of 3 years fixed and 5 years indeterminate. He pleaded guilty. The State recommended 3 fixed and 5 indeterminate. I argued my client was much misunderstood, but had done what needed to be done.
The Court imposed a 20 year sentence – 8 years fixed and 12 indeterminate. That was 8 years and four months ago. My client is now out, and he served his time honorably as evidenced by the fact that the parole commission sprung him before topping out at 20 years. But when he arrived in court that morning neither he nor I expected him to leave for an eight year prison term.
My point here is that even the best agreed upon sentencing recommendation may run into a wall. Judges, lawyers and defendants do not always play from the same sheet of music. When this one was over, Mr. McGee served his sentence honorably, and the Court may permitted him to leave jail at 44 days. And nothing here is intended to infer anything about the court or the lawyers. They simply saw it differently. Mr. McGee made decisions and he had to live with them. The same is true in every case.
SuperLawyers not withstanding – there are no guarantees in most plea agreements.
So what about that plea bargain they have offered you? Or your loved one? Will the judge follow the agreement or not? Find out what you can do to make it more likely you get the benefit of the bargain by checking other posts in this blog on sentencing. You can also start by reading the post just prior to this one on humility!Continue Reading Remember: the Judge is NOT Bound by the Plea Agreement
A couple weeks ago I had a sentencing in front of a District Court judge on the case that attracted a little bit of attention. The cause of that attention was my client’s appearance in his police photo. He didn’t really look all that "innocent."
In fact, many people would simply have generalized much about him based on the tattoos he carried.
Regardless of his many tattoos, I really like this guy. He is pleasant and smart, and he has a quick sense and wit. And he has a couple of prior felony convictions that had landed him in prison.
Based on his appearance and his prior felony convictions, most people likely figured he was headed back to the penitentiary. The crime itself was an aggravated battery in which another young man had been seriously injured.
From the beginning, however, my client had taken full responsibility for his actions. A bar fight ended badly with one punch. The result was a broken jaw and roughly $30,000 in medical bills that needed to be paid. My client was not rich, but he had a job and he had great empathy for the victim. True – the victim had been somewhat responsible for the punch that left him "wired for sound," but my client really felt bad about the injury.
And my client has a son. That’s right – a young son who he loves more than any tattoo, or money or anything else. And through that young son my client’s entire life has changed. The stuff that mattered to him before the birth of his son was of little consequence once that boy had been brought into his life.
It is interesting how important our children are when we are facing "legal consequences" for our actions. In this case, he told the judge that he was completely at fault and his only concern now is making the matter right. He wanted to do everything he could to make life better for the victim and by doing so, to set an example for his son. He said he did not want his son to follow the path he had taken, he hoped his son would avoid spending time behind bars.
When the judge sentenced my client, her first impression was based on his humility, not his ink. She liked him as I had predicted she would and the sentence she ultimately imposed did not include any jail time. He would do what he had agreed to – pay for the medical expenses – and give back to the community. Jail time was held in abeyance – and if he can get that all done in the next few months he will not likely ever go to jail.
Here’s the bottom line – be humble. If you made a shambles of your life, admit it. Come up with a positive solution to the problem you created and be willing to take immediate responsibility.Continue Reading Humility At Sentencing Can Keep You Free