Criminal Defense

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Courtney Peterson is back with more info on expungement:

Expungement in Idaho isn’t really a complete expungement of all the records in a case. I suppose it’s a bit misleading to use the term “expungement.” In Idaho, you can have your case dismissed based on Idaho Code 19-2604, but the record that you have been charged is still there. A search for your case on the Idaho State Repository will show that you were charged, even if the case has been dismissed or you’ve been granted a Withheld Judgment. The record will reflect the disposition of the case; for example, “Dismissed By Court” or simply “Dismissed.” Evidence that you were charged and perhaps convicted of a crime in Idaho will never fully be erased. There will always be a record of what violation you were charged with, whether you were convicted, acquitted at trial, given a withheld judgment, or the charges dismissed. The only exception to this rule is if the court has sealed the case, which generally only occurs in juvenile or certain domestic relations cases.

Most people who call about expungement tell us they want their conviction “completely off” their record so that no one in the world will ever have access to it again. Sorry – that is just not going to happen. Once you have been charged, absent a court miracle or clerical mistake, the fact that you were a suspect in a criminal case will show up on the Idaho State Repository. Additionally, there will always be a record on the FBI’s National Crime Information Center (NCIC for short). This is a national database that only law enforcement personnel have access to, but that record lists every arrest and every charge in your history. There is no real procedure to get these records expunged or erased.

Now, the good news. In Idaho, you get one Withheld Judgment. ONE. If you plead guilty to a charge, whether misdemeanor or felony, you can ask the court to grant you a Withheld Judgment. If you are eligible, the court will hold off on entering a formal judgment of conviction against you when you plead guilty. The judge will instead withhold judgment and after you have successfully completed probation, you can petition the court to dismiss your case. The beauty of a withheld judgment is that it allows you to honestly say that you have not been “convicted” of the specific crime you were charged with. If you’re successful on probation, you can have the case dismissed and there will never be a judgment of conviction against you. Keep in mind, however, that there will still be a record of the charge and your guilty plea on the Idaho State Repository.

Don’t let the fact that you’re only afforded one Withheld Judgment deter you from attempting to get a case dismissed after probation. Even if the judge has entered a judgment of conviction in your case, you can still petition the court under Idaho Code 19-2604 if you’ve successfully completed your probation.

Want more information about getting a case dismissed even without a Withheld Judgment? Give us a call.

 

Continue Reading Expungement Isn’t Really Expungement In Idaho

Courtney has today’s blog entry – and she looks at probable cause.

I just found out I’ve been driving around with only one working tail light and it got me thinking about reasonable suspicion and DUI. The only thing a police officer needs to pull you over is reasonable suspicion that a crime has been or is being committed. One of the most common complaints we hear when a person has been charged with driving under the influence is that their driving was fine, they can’t imagine why the officer had reason to pull them over, and it must be entrapment. Reasonable suspicion is easy. It can be as obvious as my burned out tail light or as minute as not having a turn signal on for at least five seconds after a stop sign (which is the law in Idaho, by the way). Most DUI stops occur early in the morning after the bars have closed. People cry entrapment because an officer parked near the bar and followed them after leaving. That’s not entrapment. Just leaving the parking lot of a bar is not generally enough for an officer to pull you over. They’ll just follow you for a bit and wait until you do something that gives them the right to pull you over. There’s your reasonable suspicion. Once you’re pulled over for "weaving inside the lane" or going one mile over the speed limit, they’ve got a chance to see if you’re under the influence. Stop leads to field sobriety tests, a breathalyzer demand and maybe – a DUI.

Here’s one more thought:  When a police officer pulls you over, what is the first thing he or she always asks? Even before you’re asked for your license and registration, it’s the same question every time.

“Do you know why I pulled you over?”

And do you know what you should say every time they ask you? NOTHING. Absolutely nothing. The officers are looking for an admission. They want you to tell them why they should have pulled you over. If they’ve got you for failing to use your blinker and you tell them you were speeding, how many tickets do you suppose you’ll get? My guess is two.

Have a question relating to a traffic stop?  DUI?  Reckless or inattentive driving?  Give us a call.

Charged with a DUI and wonder if the stop was legit? Give us a call.

 

Continue Reading Courtney Peterson: When Can I Be Stopped While Driving?

I heard again yesterday the old story about Oliver Wendell Holmes’ reminder to his law clerk, who questioned whether a decision was "just" or not. Holmes is reported to have told the clerk, "we’re not in the justice business; we’re in the law business." Indeed we are. There are unjust results that flow from our system, and you may judge yesterdays decision as unjust. The system worked fine – and the jury did it’s job. Their decision is simply that, their decision. Just or unjust, each side had their day in court and now we all move on.

While the country debates the jury verdict in the Casey Anthony trial, I thought it might be good to take a minute to consider how any criminal case can be destroyed by the DEFENDANT – not the lawyer – who thinks he or she can talk their way out of trouble. Consider the following three things you can do to destroy your criminal case, some of which are illustrated by the Anthony case.

First – lie to the police or investigators. Why can’t defendants simply not talk to the police? Every 5 year-old in this country has heard that he or she "has the right to remain silent," but nobody ever does. Instead of simply refusing to answer questions, most defendants tell the investigators some story that they think will get them out of trouble, but rather, sinks their ship. If you tell lies to the police, then expect the prosecutor to reveal you as a liar. Silence is better than lying and even telling the truth to the police without first talking to a lawyer is dangerous. Remember that Casey Anthony’s lawyer had to admit in opening statements that she was a liar. That is not the way you want any case to start.

Second – tell the lies to your friends and family. Investigators and police call your friends and family members "witnesses." What you tell them will almost certainly be used at trial to impeach you – that is a nice way of saying that your lies to your friends will also be used to reveal you as a liar. Again – the truth may set you free but those little lies to friends can convict you. Don’t be tempted to tell friends and family about your situation, just sit tight and let time take its course. You don’t need your brother’s best friend’s former girl friend to show up at trial and testify that you told her a different story than the one you told the jury! 

Third – insist on taking the stand at trial. Smart clients listen to their lawyers. Some clients never listen and insist on doing it their way (mostly these are lawyer-clients, or clients who think they know more than their lawyer). The Defendant in a criminal trial always has the right to take the stand and frequently I advise my clients to do so. The jury trial is all about the story of the case. Usually the Defendant will have to tell the story, but not always. Many cases are won by lawyers who are brave enough to keep their clients off the stand. It depends on the case, and the defense offered. And it depends on the ability of the defendant to stay out of trouble on cross-examination. My point is this – listen to the lawyer who is trying your case. No matter what those talking heads and vigilante former prosecutor turned millionaire TV talk show hostess insist – the person who knows you and the case is YOUR lawyer.

Getting ready for trial? Think you may have blown it by talking to the police or lying to a friend? You may have, but that verdict in the Anthony trial reminds us that juries usually take the instructions to heart and insist that the prosecutor prove its case beyond a reasonable doubt. Trust your lawyer and the jury and play it smart.

 

Continue Reading Three Ways To Destroy Your Criminal Case

 In an odd combination of Justices, the United States Supreme Court has ruled that the 6th Amendment right to cross-examine and confront witnesses against you includes the right to question the lab analyst who tested your breath for alcohol in a DUI case. Justices Ginsberg, Scalia, Sotomayor, Thomas and Kagan joined in the majority opinion in Bullcoming v. New Mexico, handed down yesterday.  Opting for efficiency over exercise of the right to cross-examine, Justices Kennedy, Breyer, Alito and Chief Justice Roberts thought a certified written report could be introduced by a technician familiar with the laboratory procedures. The result may turn the DUI business on it’s head.

The Court has now specifically ruled that merely calling that report "scientific" is not enough. This should signal the end of "the machine says he’s guilty, its on the print-put." Prosecutors will have to actually call THE lab analyst so he or she can be cross-examined. Isn’t that the way it should be if the State is trying to convict you of a crime that will leave you unable to drive and serving time?

Gotta go to the dentist so no more time to write about this, but you can read all about it at the examiner.com here.

 

Continue Reading BAC Report Not Admissible Without Live Lab Analyst – This Changes Everything For DUI Cases

In the past six weeks, Courtney and I have tried two criminal cases in Ada County.  The first case charged vehicular manslaughter – two felony counts. Last week we tried a case that charged aggravated assault with a deadly weapon and injury to jails (both felonies), as well as misdemeanor counts of false imprisonment, battery and destruction of a communication device (a cell phone). We picked juries in each case, and had the benefit of a jury consultant on the manslaughter case. As we have earlier reported in this blog, the jury in the manslaughter found our client not guilty of the felonies. Last week the jury in the aggravated assault case said not guilty as to the disputed charges (but guilty of the battery in the face of a self-defense claim), but guilty of the two misdemeanors our client had admitted committing.

So what did we learn?

In each case we approached the process of jury selection as one of inclusion, not exclusion. This is a Trial Lawyers College ("TLC") thing. Getting rid of folks from the panel is always tricky, even with a jury consultant, because lawyers are usually looking to "craft" a panel of jurors who are more likely to go their way than the way of their opponent. The problem with that approach is that we are not as "crafty" as we believe. So the TLC approach is different – start instead with your biggest fear in the case and work your way through this with the potential jurors. So we start by admitting we have potential problem areas in the case, and ask the jurors if they are going to be able to remain open to the balance of the case even knowing about the problems. We try to include folks by talking about the warts, and then getting the juror to open up about his or her feelings. Sounds all "touchy-feely" doesn’t it? I think it works.  

Let’s consider the problem posed by a recent client’s admissions that he had hit his girlfriend. Guy hitting girl equals problem. Growing up as men in society, we hear repeatedly a universal truths: "men don’t hit girls." Period. Ever. So when we have a client who has done that – struck a woman – you need to talk about it early and often with potential jurors because it goes against this deep seated belief we have as men. We talk it out and see if the jurors can get past it and get to the issue that they must decide.

Of course all this talk about inclusion is in some ways just talk. At the end of the day the lawyer has to decide which jurors represent the biggest obstacle to a fair trial based on their answers and their experience.  With thousands of dollars paid to jury consultants, I have never forgotten the words of the Hat – "experience trumps everything else." He is right about that. Any juror who has had an experience with domestic violence cannot help but have a predisposition one way or the other in a domestic violence case. If you can get them talking they will tell you whether they can serve fairly. 

But back to the question – what did we learn?

First, we learned that the TLC process works to identify the potential trouble spots with jurors. Spence says that if you are willing to show the jurors your weakness (area of concern) they will talk about their own fears. I think that is exactly what happened in both cases. In the manslaughter case I talked about my fear that people might immediately conclude a person with poor vision has no place driving on the road. The jurors opened up about that weakness and talked through their perceptions. From that we made some inroads into building a relationship with the jurors. They understood that they could look to us for the answers in the case, and they could trust us to be honest about the evidence.

The second thing we learned was that having the jury consultant is a huge help but you can get past the benefit of that expertise by taking more preparation time for voir dire.  Given my choices, I would always enlist the aid of a consultant, but even the best consultant cannot pick your jury. The lawyer is ultimately going to have to make the tough call about who should stay and who should go. The consultant I use always asks me what ONE question I would ask if I could only ask one. From that one question we need to be able to expose our concern to the jury and get them talking about how they feel.

Getting ready for trial? Worried about picking that jury? Get a copy of Gerry Spence’s book "Win Your Case" and read the chapter on jury selection. That is a great starting point for the TLC method that consistently works for us.

 

Continue Reading Jury Selection – Try To Include Potential Jurors But Get Them Talking

 With just a few minutes to "share" today I wanted to pass on this advice from a Boise District Court Judge to one of my clients recently. Following the entry of the plea, it takes 4 – 6 weeks for the preparation of the pre-sentence investigator’s report.  That is a 4 – 6 week window to make your appearance to the court more relevant at the time of the sentencing.  Judge’s advice to my client:  "Get a job!"

Jobs open up possibilities like work release and community service. Jobs make you appear more like "us." You see, here is that key again to any good case – you need to look like one of "us," not one of "them." Us? Them? What do you mean?

You know -"us" – the squares that pay their taxes, follow the law, work for a living and take care of persons and things beyond themselves. We generally believe the world spins beyond us and includes others. That’s us!

Them? Well, think crooks and hoods and dealers and grifters. Think folks that you would not trust to spend the night in the home of the person you love the most (someone other than yourself). Think folks who scare the hell out of you when you see them and cause you to cross to the other side of the street. Them!

Maybe life is more complex than this, but I don’t think so. After nearly thirty years of selling reasonable doubt for a reasonable price, I believe this is what matters. Perception is reality.

So get a job. Look like you are one of us. Care about someone other than yourself. You might not just avoid hard time, you might get a new life.

 

Continue Reading Getting Ready for a Sentencing Proceeding? Judge Says “Get A Job!”

 Alan Ellis is well regarded as "THE" Federal Sentencing guru among those of us who spend time in federal court. An article he co-authored with John Steer and Mark Allenbaugh appears in the American Bar Association’s Criminal Justice Magazine entitled At A Loss For Justice, Federal Sentencing For Economic Offenses.  A copy can be obtained from the author here.  If you are a lawyer who ventures into the guidelines arena with white collar clients, read the article.  If you are a person facing fraud charges, read the article!

Generally, our friends in the Ponzi and stock scheme business have brought a little heat to fraud offenses.  The government has modified the guidelines to "equalize" punishment for white collar and non-white collar theft and fraud offenses in light of Bernie Madoff and Bernie Ebbers and the like. The net effect is that white collar crimes are now likely to bring a bigger sentence than before.

In Idaho as in most other federal districts, fraud and other white collar crimes seem to net greater time in confinement than they did in the past. For that reason the preparation of these cases requires some serious consideration of how the "loss" will be calculated for the defendant, but more importantly, consideration of how best to achieve a more complete picture of the defendant so that the sentence achieves the § 3553(a) objectives. That means that we have to look beyond the numbers on the grid and place our client in the best light possible so that the amount of the fraud is less important in the complete picture.

Federal fraud cases are a challenge.  My best advice here is to hire the very best criminal defense attorney  you can afford, and always look for actual experience in this complex area of the law.

 

Continue Reading Federal Sentencing Guidelines Unfairly Punish “Fraud”

Earlier today I was waiting for that jury to return.  

They’re back…

John Tiemann had been through three weeks of trial on two felony charges of vehicular manslaughter.  The State said he was guilty of causing the deaths of Tom and Mary Woychick while driving while under the influence of drugs –  diphenhydramine (Benedryl) and phenytoin (Dilantin). Each of those charges carried 15 years in prison if he was convicted, or a possible 30 years. As an alternative the State argued he was grossly negligent by driving that morning since John knew that he was blind in one eye and had limited peripheral vision in the other. Those charges could have carried 20 years. Of course the State had given John a license to drive knowing he was disabled – and John had driven without any real problem for 20 years.  His medical problems precipitating that blindness were related to the removal of brain tumors in 1988.

The jury found John Tiemann not guilty of the felony counts.

It found that John had been negligent as he drove that morning – and ruled that he was guilty of two misdemeanor counts of vehicular manslaughter. John faces a potential year in jail for each count.

So was that a "win" asked the Idaho Statesman reporter.  

Let’s see, the state charges you with two felonies that will subject you to up to 30 years in prison, spends three weeks in trial and argues that you committed two felonies.  I guess you have to decide what constitutes a win. 

I said in trial there could not really be any winner. That is true – the Woychicks were wonderful community leaders. They left behind terrific family members who undoubtedly continue to suffer a tragic loss. Nothing that would have happened in that court room could bring back Tom and Mary Woychick, but I understand the family wanted to feel that justice had been served. I remain terribly sorry for their loss.

John will be sentenced in July, and there remains much to do to prepare for that sentencing date, but for today I am relieved he will not face a potential prison sentence. 

 

Continue Reading Tiemann – Not Guilty of Felony Vehicular Manslaughter

 After three weeks, I am finally out of trial. Well, out in the sense that I am waiting on a jury verdict. Waiting is a killer for everyone in this situation, and I don’t write about cases while they are being tried. So more about that case soon, but this morning I read a little blurb about Boise soldier Andrew…

Continue Reading Boise Soldier’s Article 32 Hearing – think probable cause

 Let’s just say that your are leaving the parking lot of your favorite convenience store.  Slurppy in one hand, cell phone in the other. An unmarked car stands by and hidden from view an officer watches your moves. You get into your car and back out. The unmarked runs interference and a couple of squad cars appear.  

"Do you…

Continue Reading Does A Search of Your Cell Phone’s Text Messages Require A Warrant? California Says No.