Dharun Ravi, 20, a student from New Jersey was recently found guilty by a jury in Middlesex County of bias intimidation, invasion of privacy, and hindering prosecution for using his laptop to secretly record and broadcast an intimate encounter between his Rutgers roommate, Tyler Clementi, and another man.

Clementi later committed suicide by jumping off the George Washington Bridge


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The Supreme Court recently heard arguments surrounding two new cases up for review. Both involved the question of just how severe a penalty imposed on a juvenile offender must be in order to declared unconstitutionally cruel and unusual.

The first case, Miller v. Alabama, involved a 14-year-old in Alabama who beat an older man to death and subsequently burned his house down. Evan Miller, the teen, and a friend stole a collection of baseball cards and $300 from a neighbor. They attacked the man with a baseball bat, and killed him when they set fire to his home. The second case, Jackson v. Hobbs, involved another 14-year-old boy in Arkansas who, along with two older boys, tried to rob a video store in 1999. One of the older boys involved in the robbery shot and killed the store clerk as he was going to call the police. Both Mr. Miller and Mr. Jackson received mandatory sentences of life without parole for murder.

Proponents for harsh penalties point to the “sanctity of life” as the reason a juvenile should be sentenced harshly for crimes involving killings. There age should not be an excuse for punishment given the severity of their crimes. However, in oral arguments, Justice Ginsburg turned the argument around, noting that the same interest in the sanctity of an individual’s life could be used as justification for not severely punishing young offenders. By imposing a life sentence without the possibility on a 14-year-old, the state has essentially thrown away that person’s life.

Those opposed to meting out such harsh sentences believe that teenagers are immature and should be given a more lenient punishment because of that inexperience. While they acknowledge a life sentence is appropriate in such heinous situations, they believe that tacking away even the hope of parole is a step too far for such young criminals. Proponents of harsh punishment worry that teens have less incentive to commit such crimes in the future if they know that all they have to do is claim immaturity when they’re caught.

The Court weighed several possibilities when hearing the case and they include the following options:

·              Prohibiting life without parole sentences for any minor under the age of 15.

·              Prohibiting life without parole sentences for anyone under the age of 18.

·              Ban life without parole sentences for defendants who only acted as accomplices to a crime.

·        Bar mandatory sentences, relying on the discretion of the particular judge to consider all the facts and   circumstances of the case before reaching a decision. 

Headed to trial? Got a case that you want to talk about? Call our experienced Idaho criminal defense lawyers today at (208) 342-4633.

 


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 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


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 Today’s Idaho Statesman contains an article about a lawsuit filed by a young woman who was at a University of Idaho frat party, apparently got intoxicated and fell out of a third story window.  The issue here is liability: is the University or state board of education liable for injuries sustained by a person who is herself violating the law by illegally consuming alcohol? More interesting than the legal question is the comment section of the on-line version of the story – and it serves as a good reminder of how public perception plays a role in our assessment of any civil case. As the lawyer looking at a personal injury case or a wrongful death case, I always start with the obvious – how will the man on the street look at the facts of this case? After all, if the case goes to a jury you will be asking the man on the street for money.

As you might expect, the plaintiff in the U of I case was seriously injured, and it seems likely mounting medical and rehabilitation expenses have motivated her and her family to look for some help in trying to rebuild the young woman’s life. She claims generally that the University and the state board of education did not do enough to safeguard her time at the University. Had window locks or similar devices been installed, perhaps she would not have fallen out of the window and been so seriously injured. In legal terms we would talk about causation here – was the University’s failure the cause of the injury or was there another intervening cause?  Maybe her voluntary intoxication?

Check out the comments to the story to see what a tough case this might be to win.  Most of the folks posting their "two cents worth" assume the case is frivolous or absurd. As I write this, only one post speaks to the question of whether the University has a duty to do something to safeguard students in the face of known underage drinking at frat parties. And our answers to this question likely are influenced by our own behaviors as college students, and the fear we have as parents of college students that they get drunk and end up with some serious injury.

Shouldn’t the law protect people at their weakest moments? Shouldn’t it protect us – to some degree – against ourselves? Can it? 

This is a great case to watch for anyone interested in the intersection of personal responsibility and expected campus party behavior. The plaintiffs have a long battle before a jury considers the question of responsibility here. And we might check back in on this one when the question of summary judgment arises.

 


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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.

 


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You’re kidding me? A jailhouse snitch lied? Under oath? While being asked questions by a prosecutor? Who the 9th Circuit says KNEW that the snitch was lying? Huh.

That’s what the 9th Circuit Court of Appeals found today as it reversed the death penalty for Lacey Sivak, who was convicted of murder and sentenced to death for the killing of a convenience store clerk in 1981.  The Idaho Statesman reports this story here.

What should we take away from this? First, it ain’t over til’ the fat lady sings! Criminal trials and their outcomes are unpredictable, and the "result" is often subject to further review – by the courts of appeal. Second, the jailhouse snitch testimony is always suspect because the snitch is always looking for a way out of jail! Trial lawyers need to work on that snitch cross-examination so that the jury understands the credibility issues that exist with the snitch.

Maybe most importantly – we are reminded again of the important work performed by death penalty trial, habeas and appellate attorneys. Klaus Wiebe, Rolf Kehne, David Nevin, Leo Griffard, Bruce Livingston and Colleen Ward deserve a big congrats on their hard work. Death penalty and habeas corpus work is so difficult and such precision is required that we can never thank these folks enough.

What will happen to Sivak? Likely, he will be re-sentenced (if the State chooses to seek the death penalty) or the case will be settled for a life sentence.

Remember this – no matter what crime is charged – you need to retain the best attorney you can afford. Your life may literally depend upon that choice.


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In the world of "star justice," Roger Clemens’ trial for lying to Congress started out looking like "must see TV." It quickly fell apart and the court declared a mistrial based on the failure of the prosecutors to play by the rules. Only six days into the trial, and on only the second day of testimony, prosecutors apparently defied a court order and presented prejudicial hearsay testimony the judge had already barred from trial. The judge specifically found that the government’s conduct had placed the case in a posture where Clemens could not get a fair trial from the seated jury. But could he get a fair trial from another jury? Will the government get a second chance to convict the baseball superstar?

Clemens’ defense lawyers have filed a motion to dismiss the indictment, claiming that Roger cannot get a fair retrial based on the government’s conduct. The motion is 32 pages long and provides some great reading. Others have written about this in far greater detail than I can here, but the general principle to take away from the motion is this – you have a right to a fair trial in every criminal matter. A fair trial may include hard evidence, prejudicial witnesses and physical evidence that strikes a hard blow. Judges preside over criminal case to insure that the blows will be within the bounds of the law and that the parties will play by the rules. When prosecutors do not play by the rules, the court must step in and use its power to insure a fair trial. 

In the Clemens case, the prosecutors permitted hearsay statements made by Clemens’ ex-wife to be played to the jury despite a prior court ruling that prohibited them from doing so. The prosecution team had put together the video clips and transcript that were shown the jury – so even if they did not intend to violate the court’s order, they had a duty to insure that the order was complied with. In other words, after spending millions of taxpayer dollars to prepare for trial, somebody should have reviewed that video and transcript to make certain they did not violate the judge’s order.

After all – this million dollar fiasco is all about personal accountability, isn’t it? 

So now we await the government’s response to the motion. We will follow-up on this as it develops.

 


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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. 

 


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