A former engineer has been charged with destroying over 200 emails that were requested by prosecutors and investigators in the 2010 BP Gulf oil disaster. One of those emails reported that the spill was far worse than had been reported by BP.
According to CNN, Kurt Mix faces charges that he intentionally destroyed evidence that had been requested by
Continue Reading Deleting Emails Leads To Criminal Charges in BP Disaster
As any experienced Idaho criminal defense lawyer will tell you, the vast majority of cases are resolved with a plea bargain long before they ever reach a courtroom. Plea bargains are important to prosecutors because they help efficiently clear dockets and allow them to prosecute more cases. They can also be beneficial to defendants by allowing them to serve
Continue Reading Supreme Court Tightens Rules on Plea Bargains
What if you find yourself arrested for a “minor” crime such as failing to pay child support or some variety of traffic violation? You might imagine being taken to jail but would you expect to be subjected to a strip search? Not being a drug user or a violent repeat criminal surely such activity by the police would amount to
Continue Reading Supreme Court permits strip searches for even the most minor of crimes
The news today in the Statesman got it right – Zachary Neagle is still in custody – the judge having denied a request by the Idaho Department of Juvenile Corrections to permit him unsupervised home visits. The story implied that Zach had asked for the sessions, but he had not. We did not file the motion, it was filed by
Continue Reading Zach Neagle Stays In Custody – Three Things You Can Learn About Your Case From His
I watched a young criminal defense lawyer struggle with objections the other day so I thought I would review the process we use to object. It always looks so cool on TV – the lawyer stands and announces "OBJECTION, YOUR HONOR, he can’t testify to that!" You expect the Judge to immediately stop the trial, chastise the lawyer and affirm the objecting party. In real life trials it seldom looks so clean. We stumble and stutter and spew out "objection" just loud enough to be heard, but without the conviction that we know why we are objecting. Here are four basic rules I learned as a young JAG that might help you as you stand and deliver:
First – say the word. "Objection." Say it with conviction so that you can accomplish the real reason you are up in the first place – say it like you mean it so the witness will stop talking!
Second – give a legal basis for the objection. Not a treatise, just a rule will do: "Objection, hearsay."
Third – if you win the objection then you probably want something. How should the court fix whatever problem caused you to get out of your chair? Ask for a remedy. Ask the court to strike the testimony given before the objection, or to cure the problem.
Fourth – if you lost the battle, you many need to make a record by an offer of proof. Not on every little objection, but sometimes you need to protect that record for an appeal.
So there are the rules, courtesy of the United States Army JAG school, as best I recall. Hope they help you do it better if you do it at all. And that might just be the bigger question: When should you object? Let’s save that for another day.
Off to court …
Continue Reading Let’s Talk About Objections – Practical Tips
The National Institute of Standards and Technology (NIST) recently identified 149 potential sources of human error in the analysis of crime scene fingerprints. In an article published by NIST, the results of a study by a working group of 34 scientists, NIST recommends changes to reduce human error and make conclusions more reliable. You can download the report at this site.
Fingerprint evidence is difficult to deal with in trial because the examiner offers his or her "opinion" as if it were indisputable fact. In truth, the examiner identifies a number of points of comparison and then, if similar to the known sample (for example, from our client), declares that the prints "match." He or she may use fewer than 7 points of comparison in many jurisdictions and still declare the "match."
How do you handle this type of evidence at trial? Start with NIST article and think about the issue as if it was any other opinion, subject to attack on that basis. Expert opinions are conclusions based on a review of facts (like points of comparison on fingerprints), and are subject to human error. Opinion testimony is also subject to cross-examination for bias (testimony that favors a position) and prejudice (testimony that opposes a position). For example, an examiner may be part of the "prosecution team," with an agenda to obtain a conviction. He or she may acknowledge that there are no real standards with respect to how many points of comparison are required to state the opinion. Perhaps he or she has been retained in a case and has been paid for the opinion.
My point is simple – treat this witness just like any other "expert" and cut away at credibility, in part by focussing some of your cross-examination on human error.
But recognize that jurors love "scientific" evidence. Science has certainty, or at least the appearance of certainty, for that moment in time. Turns out the earth is not flat – regardless of the opinions offered to the contrary. And maybe that "matching" fingerprint is a match only because the analysts are subject to human error. Jurors will need a reason (or 149) to not believe the conclusion that the prints match, so go slow and go broad. The more potential doubt the expert can concede, the better you will do.
Continue Reading 149 Reasons Why That Fingerprint Expert Might Be Mistaken
In private practice, criminal defense lawyers are frequently asked about public defenders. The opinions of the folks asking about their appointed lawyers often takes on a familiar sound:
"Should I keep this guy?"
"He / she hasn’t even been out to see me!"
"I want a real lawyer!"
The truth is that public defender IS a REAL lawyer and he or she may be the best thing going for you and your case.
By way of full disclosure, I served as a public defender in the ARMY – as part of the JAG Corps. I learned to try cases from three senior "PDs" (we were called Trial Defense Counsel in the Army) who I would still rate in the top ten trial lawyers I have ever seen over my thirty year career. We were proud to serve as defense counsel and we never worried about how many hours were spent preparing for trial because we did not have to bill or collect from our clients. Uncle Sam paid us the same amount each month whether we spent forty or eighty hours a week working on our cases.
Here are three reasons you may want to stay with the public defender (and as I write this I realize this is "negative marketing" – as I am suggesting you may be better off not paying for your lawyer):
Reason 1 – your case may be more complex than your wallet’s ability to pay for counsel. Many criminal cases are incredibly complex, requiring analysis of many legal issues and factual considerations. I am in a case currently that involves over 100,000 pages of documents, each of which must be reviewed and analyzed. Reviewing documents takes time. Time is what we sell as private counsel – so you could expect that the more time we spend, the more the case costs. But a public defender in a complex case may be able to commit the same amount of time and resources to your complex case and not worry about collecting for his or her fees. If you are in a complex case, you need to ask your PD if they have the time to devote to your defense.
Reason 2 – that PD may have a better grasp of the law of your case and the local procedures than an inexperienced private counsel. When I first started practicing in Boise, I was hired to "birddog" a criminal case for a family with unlimited funds, who had been the victim of the crime at issue. I went to the Preliminary Hearing and when the Defendant waived, I wasn’t sure exactly what would happen. I had trial experience – couple murder cases included – but that experience was not "local." Another lawyer explained the result of the waiver and I was able to report accurately to my clients that the Defendant was headed toward arraignment. That Defendant had a public defender who breezed his way through the process because he had an intimate knowledge of the process – he was in court every day and understood exactly what was coming next.
My point here is that the PD CAN really serve a client’s best interests, in part because they have day in and day out experience in the courts.
Reason 3 – PDs are REAL LAWYERS! I used to really hate to hear this crap. Even in the military, a defendant can hire "private counsel" to handle a courts-martial. When I had this happen I usually felt relief and regret about the situation. Often I was happy to have another lawyer to come into the case and bring his or her experience to the defense of my client. Relief. The regret came with my own sense of pride in the job I could have done – after all – I was a REAL lawyer too! Still, in the end the decision needs to be made by the person facing the charges.
I want to add that the local PDs I interact with are generally GREAT lawyers. It’s true! They work hard, care about their cases and genuinely operate in the best interests of their clients.
So if you are happy with your Public Defender – you may be best to stay the course. If you want another opinion about your case, check with a private criminal defense lawyer, whether that is me or someone else. But in the end – understand that your right to have the effective assistance of a lawyer who is paid for at public expense is one of the most important protections available to any defendant in any court in this land.
Thanks for your service PDs.
Continue Reading Three Reasons That Public Defender May Be Your Best Alternative
The other shoe has fallen. John Bujak, formerly the Canyon County Prosecutor, has been charged with Grand Theft by Deception and by Embezzlement, and the investigation of the case is set out in a detailed affidavit that is available online at the Idaho Press Tribune website, or here. But before you think this thing is over, I bet there are more falling shoes in our future. Here’s why:
First, the affidavit indicates that although Bujak maintained neither he nor his chief of staff Tim Fleming would profit from the contract between Canyon County and Nampa City, BOTH did profit and neither apparently thinks there was any problem with their conduct. Bujak told the investigators that the issue wasn’t whether he took the money, but rather, whether he was permitted to take the money. Apparently in his mind, those statements that he would not personally profit (the Canyon County Commissioners say that they were led to believe Bujak would not profit) were only intended to refer to his agreement to "not take a salary increase." So the investigation reveals that as the money came in from the City, which believed it was going to pay the County, Bujak used the money for his personal expenses, transferring money to his own private accounts. It also shows that in late March 2010, Bujak used the same money to buy a $10,000 cashiers check for Tim Flemming – Bujak’s former chief of staff. Why was the $10,000 cashiers check, purchased out of Nampa City funds that were intended for Canyon County, going to Tim Fleming? Gift? Bonus? Mr. Fleming may have some explaining to do.
Second, the affidavit indicates that the contract (Prosecution Services Agreement) was between the City of Nampa and Office of the Mayor, and the Canyon County Prosecutor and Canyon County. Bujak’s claim has been that it was a personal contract between he and the City. If the contract actually is not in his name, then the money is likely not his; it belonged to the County. All of this stuff will impact on the pending lawsuits and bankruptcy proceeding. That failure to disclose to the Bankruptcy Court that he had possessed and sold a Rolex watch, could still land Bujak in another criminal case – in federal court. And of course there is the divorce proceeding and Bujak’s lawsuit against protagonists Bob Henry and the Michaelson law firm – remember he said they defamed him when they claimed that he had received money that he wasn’t entitled to? Kind of sounds like the charges of Grand Theft in the new criminal case, doesn’t it?
Third and foremost in my mind is the likely involvement of the Idaho State Bar. Bujak has been practicing law on a contract basis while this has been pending. He serves as an officer of the court and his conduct is subject to review by the Bar.
Then again – I guess that potential fourteen years for each GRAND THEFT count will probably consume his time. After all – he took the money – admits he got $236,000 from the City of Nampa that they believed was going to the Canyon County Prosecutor’s Office. The only question is whether he was ENTITLED to take it.
I bet Kerry Michaelson and Bob Henry will sleep a lot easier tonight. They called it years ago.
And Mayor Dale, City of Nampa, Canyon County Commissioners: who was driving that bus when each of you allowed this mess to go on for a year? Just how is it that Canyon County taxpayers got Bujaked on your watch? You’ve got some explaining to do, too.
Continue Reading Bujak Charged With Grand Theft – Tells Investigators He Took The Money
Just how do you address the court? What does your language tell the judge in that Ada County or Federal Court appearance? Whether you are a lawyer or a defendant, an expert witness or a plaintiff, the way you speak and the things you say can make a difference. Check out this video, it’s hilarious, but sadly true. We seldom speak with the authority or conviction we need to convey in court.Continue Reading Preparing For A Court Appearance – Speak Like You Mean It
The Sixth Amendment to the Constitution provides you with many of your most important tools at trial. It is intended to guarantee a fair trial to every person accused of a crime. Whether you are charged with DUI, a drug crime, a sex offense, fraud, manslaughter or murder, the Sixth Amendment helps us to get you a fair trial.
If you have been charged with a crime, we will be happy to meet with you to explain your Sixth Amendment rights and how they can help us defend you in your particular criminal defense matter.
So what does the Sixth Amendment provide? It provides you with these essential rights at trial:
You have the right to be tried by an impartial jury.
You must be informed of the nature of the charges against you.
You have the right to confront the witnesses against you.
You have the right to a lawyer.
These basic rights are just the start – for example you don’t want just any lawyer – you want an experienced trial lawyer.
You don’t really want just any jury that might be impartial – you want a lawyer who can use his or her experience to choose jurors most likely to listen to your story, and jurors who will want to help you.
So the Sixth Amendment gives us a framework to defend you, but the key to your defense – your trial and your innocence – is the lawyer you choose.
Before you hire a lawyer who says he or she has the experience you need to face a prosecution – STOP. Ask that lawyer the five questions we have here. Then give us a call. For over thirty years we have been providing the best defense in criminal cases in state and federal courts.Continue Reading Just One Tool – Protecting Your Sixth Amendment Rights