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


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 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


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 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


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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.

 


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 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.

 


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 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!


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 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.


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"What will you do for me to prepare for trial?"

The question came from a prospective client last week who knew exactly what he was looking for in an experienced Idaho criminal defense lawyer. His case involved a charge of driving under the influence (DUI), but it could have been any crime, because the steps we take in discovery are really the same whether the charge is DUI, grand theft, manslaughter or murder.  

Here are Seven Steps we will take for you:

First – we will request all the information that is available as to the arresting officer and others who have given statements about the case. The officer in a DUI or driving related charge has had training that may be relevant with respect to the case. The same is true with his or her disciplinary record, if any. We want to know more about every potential witness because their testimony makes or breaks the case. 

Second – we will request a copy of any and all video and audio evidence, and then review that evidence and analyze its impact on your case. You need to see and hear that evidence too!

Third – we will request a copy of the dispatch logs from the arrest in your case. Sometimes there is information in the logs that will rebut or explain part of the case.

Fourth – we will visit the scene of the investigation. We need to compare what is in the report with our own observations and experience. We want you there too, so plan to go along and provide us with your side of the story.

Fifth – We will interview any and all witnesses who may have helpful information about your case. Get us the names of everyone you can think of who knows what happened.

Sixth – We will thoroughly review the law, and explain to you how the law and the facts work together in your case.

Seven – We will learn your story, from you and from others who know what happened in your case. Every case is a battle of stories – your version and someone else’s. We need to know you and your past, and we need to get to the heart of your story.

If you have been charged with any crime, call us to discuss how these steps will best prepare us for trial.

 


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 Looking back to the first of this year, we have found an edge in each case and used it to gain reduced charges for our clients in the following cases:

In Jerome County, our client BG was charged with felony vehicular manslaughter. A vehicular manslaughter case may take the form of a felony charge if the State relies upon "willful and wanton misconduct" or intoxication as a significant cause of the death of another person. In this case, the State alleged that BG’s reckless operation of his commercial truck resulted in the death of a Sun Valley woman. After considerable investigation and relying on the opinion of other operators, we were able to gain a reduction of the charge to a misdemeanor. The end result meant that our client would not face the possible 15 years in prison authorized under Idaho law.

In Valley County, our client PR was charged with a second driving under the influence of alcohol (DUI) as the result of his vehicle having slid off the road last winter. In discovery, we obtained a report of a test of the machine that seemed to indicate the reliability of that test was suspect. The case was reduced to a first DUI and our client permitted the opportunity to complete his sentence by work release.

In Canyon County, our client TB was charged with insurance fraud. He had repaid the questionable money he possessed and we used his admission and restitution to gain a probationary sentence. No conviction (TB took a withheld judgment that will permit dismissal if he successfully completes probation), no jail, no prison.

In Canyon County, our client KH was charged with fish and game violations that would have destroyed his related business. After completing the first day of trial, the State moved to dismiss the case after we showed that fish and game officers had not turned over all the evidence required. A "mystery CD" suddenly surfaced with text messages and emails and photos that would clearly have been relevant.

In Federal Court, our client RBH was charged with violating certain food and drug act prohibitions. The company and its owner faced possible felony charges, huge fines, and prison for its owners. We worked with co-counsel from NY to obtain a misdemeanor corporate plea, and the business paid a fine.

In Power County, our client was charged with possession of controlled substances, a felony. We negotiated a misdemeanor possession charge and probation for TS. A similar situation occurred only a few weeks ago in Adams County, with a resulting dismissal of the felony charges in exchange for a plea to a misdemeanor paraphernalia charge for our client KN.

In Federal Court, our client ST pleaded guilty to one count of distribution of controlled substances instead of the conspiracy to engage in racketeering that would have subjected him to a mandatory minimum 10 years. 

In Ada County, our client RP’s felony trafficking in drugs was reduced to a misdemeanor possession, and he avoided an almost certain lengthy confinement.

In Federal Court in Wyoming, our wrongful death case against Grand Targhee Ski Resort, and Teton County Idaho and Wyoming has been settled for an amount agreed to be confidential. We were only weeks away from trial when a mediation in Casper allowed us to help EF’s heirs. Wrongful death cases against ski areas are tough to win in view of the recreational safety act in both Wyoming and Idaho, as we found out when we tried our last ski death case. Our pal Skip Jacobsen, who is now "of counsel" to the Spence Law Firm out of Jackson, Wyoming served as lead counsel.

Big trials in federal court in August (fraud), Wyoming federal court in September (wrongful death) and securities fraud (federal court October) all washed out – and were either settled or continued. These bigger cases took much of our time over the year, so settlements and continuances have kept us out of court. That, however, is the new norm – with increasing costs to try cases and increased risk of losing at trial, most cases are settled. By preparing for trial, we are able to gain the leverage we need to obtain the best result for our clients.

Here is my "take away" looking back over the first eight months of 2012:

First, our more complex cases have caused us to reject many cases that we simply did not have have time for.

Second, sometimes the best resolution is the certainty achieved by a negotiated settlement. This is particularly true in view of the application of the federal sentencing guidelines.

Third, spending time investigating your case gives us the best chance of helping you succeed at trial, or at the settlement table.

 

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