Idaho Criminal Defense Blog

There's A Message For Lawyers in REWORK

Chuck Peterson — Thu, 11 Mar 2010 12:49:48 -0700

I am a huge fan of 37 Signals and their product line of mind-freeing, software-killing, reality-driven SOLUTIONS. There, I said it - SOLUTIONS. As lawyers, we tend to only see problems. Problems are meant to be solved, not lawyered, and sometimes we simply forget the value in achieving something. Recently I had a case in which my client was charged with a very serious crime. The certain outcome - at least it seemed so to me - was the end of his useful life. He would spend most of it in prison if the law had its way. And when prison has its way, well, nobody ever rehabs in prison, they just do time.

But somehow I was dealing with a prosecutor who had a different view of life. She thought the life we were about to grind up could be saved. That was what she decided to do. Recognizing that the law is sometimes an "ass" she came up with a SOLUTION. The kid's life will not end and he will pay a price but he will have a real chance, because we were able to look past the expected resolution and move toward something different. A solution.

I have been looking forward to 37 Signals' founders Fried and Hansson's new book - REWORK. Like that prosecutor, they have a way of coming up with stuff that is better. Stuff that works - or as they say - Reworks. We have used their Basecamp product for years, to keep clients better informed about their cases and in the loop at all hours of the day. Better than email - the messages function in Basecamp insures that your concern will get to me and my response will get back to you with the least grief possible. If you are a lawyer go check out Basecamp and think how easy life can be for you and that client. And you can post documents to the client's project for review without the grief of sending a fax or the worry of lost emails. No $6 faxes needed!

REWORK is full of great advice for all of us. Consider just this one take from the book on the truth about planning. It is guessing.

When you turn guesses into plans, you enter a danger zone. Plans let the past drive the future. They put blinders on you. “This is where we’re going because, well, that’s where we said we were going.” And that’s the problem: Plans are inconsistent with improvisation.
And you have to be able to improvise. You have to be able to pick up opportunities that come along. Sometimes you need to say, “We’re going in a new direction because that’s what makes sense today.”

We spend lots of time "planning" for trial when often it is the improvisation that settles, wins, and solves cases. I am not suggesting that we shouldn't plan for trial, but the truth is our best plans will likely leave us empty when we actually get to trial and the witnesses start testifying. The stuff you plan for may happen, but it is the understanding of the case - its facts and the law governing the facts - that will allow improvisation and solutions. The testimony you did not expect is the testimony that will sink your client's ship.

Make some time and read REWORK. We can learn to underdo the competition, ditch meaningless meetings and stop working so hard.

"I Was Hoping To Avoid All Those Hearings...."

Chuck Peterson — Tue, 02 Mar 2010 20:33:33 -0700

I had a really nice woman in my office today who wanted to hire me to be her lawyer in a felony case. Her biggest block was, well - money. She said she had been "hoping to avoid all those hearings" and thereby make it possible to hire me. Fewer hearings means less time spent on the case and less cost. At least that was her perception, and to some extent she was right. More work costs more. That simply does not change the reality of the court appearances in a felony case.

A person charged with a felony in an Idaho court will make a first appearance before a magistrate judge, generally after having been booked into jail on the charge. That first appearance provides the opportunity for the court to advise you of your rights, appoint counsel if needed and set or reconsider a bond that has already been set. The court will then set a date for a preliminary hearing - usually within 21 days. That preliminary hearing is a chance to see the evidence relied upon by the state to establish probable cause. If the State uses a grand jury and obtains an indictment, the right to have a magistrate judge consider the issue of probable cause goes away.

If the magistrate finds probable cause to believe you have committed a felony offense or if you have been indicted, your next appearance is before the district court judge assigned to your case for an arraignment. Usually your lawyer will enter a plea of not guilty, and the judge will set dates for discovery, filing and hearing motions, and perhaps a pretrial conference.

And of course there is the main event - the trial. The court will set that date too at the arraignment. Generally your trial date will be 90 to 180 days out from arraignment, depending on the complexity of the case and the trial court's schedule. If you need more time the court may grant a motion to extend the time to prepare for trial.

So there you have it: Felony Court Appearances 101. But the preparation of a criminal case is so much more than just showing up for trial. There are investigative reports to be read and analyzed and legal motions to consider. And of course there is the story.

The story is everything. Check out prior posts on the importance of telling your story.

More time does cost more money - but more time means "more prepared." More prepared means more likely to get it done at trial. And the trial is a war. I mean that. War. Battle. Fights. Blood and guts and throbbing headaches for you and your lawyers. Even if you do it all right you may still lose. I know it doesn't happen on TV but in real life it does - we lose cases we think we cannot lose and we win cases we think we are likely to lose. Often time spent on the case is the difference.

Got a question about your case? Go ahead and call - the first call is free.

Back From The Bone - And Headed To Trial

Chuck Peterson — Mon, 01 Mar 2010 06:27:28 -0700

Bone fishing is tougher than you might expect. The fish are fast and skittish - and it turns out that my miserable ability to cast a fly across a twenty foot Idaho creek does not account for anything when the body of water is the ocean.

"Can you cast it 30 yards?"

"Of course."

Not.

Having relied upon the kindness of our guide and a yellow/pink and red "fly" (in the ocean this term has very limited similarity to our mountain experience) I finally had a Bonefish on the line and headed to the boat the other morning just off the coast of Ambergis Caye. My fishing pal had the camera and the fish was fighting and occasionally coming to he surface, though mostly it was just running away from us.

"Now bring him into the boat..."

And then he was gone - sort of. The silver flash that is the bone had been replaced momentarily by a bigger, more ominous black sight. And then it too was gone and so was half (the back half) of the bone. Cut in two like a Ginsu commercial.

Barracuda. I would have expected a little professional courtesy.

Didn't cut my line, didn't give me any warning just enjoyed a little breakfast at our expense. We got a great photo of the remaining head, attached to my line (not the one above).

Even the guide was speechless.

"What the hell..."

And that is the struggle for life in the tropics. Big fish eats little fish just when some guy in a flat boat looks like he is going to land the bone. Gone.

So today I will get back to work. Trial practice is a little bone fishing - one day you are headed along toward that boat seemingly hooked and on your way to a certain end. And then you are not. The case you thought would surely settle does not, and some guy snaps you in half and reminds you that you are not in control.

Then again we are never really in control. Ever. About the only thing we can control is our attempt to prepare for trial - so there we go.

Police reports to read again and digest. Clients to call and the law to consider.

Great to be back at it. I am ill-suited for time off - unless it is that daily run time.

Ninth Circuit Says Automobile Tracking Device Not A Search

Chuck Peterson — Mon, 15 Feb 2010 12:58:28 -0700

In US v. Pinedo-Moreno, decided January 11, 2010, the 9th Circuit Court of Appeals held that: (1) there is no expectation of privacy in a car parked in your driveway. Police officers had attached a tracking device to the underside of the appellants car, while it sat awaiting the return of its owner. The court said that the homeowner had no gate, no signs barring trespassers and the car was visible from the street. As importantly, it also reiterated that (2) use of the tracking device is not a search.

I always laugh at the notion that the 9th Circuit Court of Appeals is some whacked out group of libs and socialista just looking for the chance to outlaw American currency and require we all stop wearing fur! Here again the bottom line crosses the Circuits - no reasonable expectation of privacy means no actionable search.

Factually, this one of those marijuana grow operation cases where DEA has identified a potential suspect but is looking for the grow. They attached tracking devices on seven occasions, and not one of them was a search. The US conceded that the car was parked within the curtilage of the home but the driveway was "only a semi-private" area. No reasonable expectation of privacy follows. If there was a reasonable expectation of privacy, there was no search when they followed the driver because the US Supreme Court has already held that a person who travels on public roadways has no reasonable expectation of privacy in his travels.

So there we are - full circle and back to criminal law. I may not post again for a couple weeks as I head to an island for warmth, sun, a little bone fishing and some time reading trashy novels. And there will likely be a country song or two: "Got my toes in the water...."

Directing Your Attention to Paul Luvera - Heads Up For Great Trial Lawyers!

Chuck Peterson — Sun, 14 Feb 2010 10:54:32 -0700

When I was a young JAG lawyer, the Army insisted on my use of this goofy phrase as I would call a fact or circumstance to the attention of a witness: "directing your attention to exhibit A, can you identify the item for the court." It had a nice "legal" sound to it and it was easy to remember. Candidly, it was somewhat better than saying, "hey - what is 'A?'" I actually heard that question asked recently in trial. I'll tell you what "A" is counsel!

We also learned the rules that we were never to break - as it relates to cross-examination the critical rule was simply this: never ask a question for which you do not know the answer.

Of course anyone who tries case does just that. Sometimes we get stung and sometimes we get lucky. The key to which happens is likely our ability to respond, not run.

This morning I was reading Paul Luvera's blog for trial lawyers and he has a great post about Irving Younger and the "rules of cross-examination." If you are a great trial lawyer or (like me) aspire to "goodness" you should read Luvera's post. Go there now and do it. Your life will be better.

If you are reading this and your are not a trial lawyer - go do it anyway. Your life will also be better. Lavera is one of the great ones - I count myself lucky to have learned from him at the Trial Lawyers College. He and Gerry are great friends and it is easy to see why. They both get it - they understand that the real people we represent and the real people on our juries expect authenticity and they want the truth. Running away from tough questions never wins cases.

Some day soon we will revisit criminal law. I promise. But for now it is off to work out. IMAZ looms ahead! What's ten months between friends!

The Six Dollar Fax Is Driving Me Crazy

Chuck Peterson — Tue, 09 Feb 2010 08:32:53 -0700

That's right - a six dollar fax. No fries or coke. "Just the fax, Ma'am." Are you kidding me?!

So I got this bill from a lawyer to whom I had referred some work and he billed me $6 for a fax. Actually it was $18 for three faxes. Really? What long distance carrier does he have that charges by the fax? And explain to me why any lawyer who charges say $200 per hour also jabs at clients for a $6 fax.

New rules in the office today. Our clients are our friends. They are our life blood. We will not nickel and dime them to death for copies, faxes, paper clips and staples! And I will choose more carefully the lawyers to whom I send business. It is not an answer that I can charge the client. The client deserves better.

At least I feel better with that off my chest!

Why Do Federal Investigations Take So Long?

Chuck Peterson — Mon, 08 Feb 2010 19:40:46 -0700

This week's first call from a potential client posed the question: Why do federal investigations take so long? Long is right! I am involved in a fraud case in federal court (potentially) that began nearly 5 years ago, and like that rabbit it just keeps going and going and going and - well you get it. Federal prosecutors are like great gift givers at Christmas. By the time you get their "package" it is so tightly "wrapped" (resulting from a long, thorough investigation) that you seldom have a chance to get to the goods in one piece. Those long, thorough investigations result in very thorough indictments, and complex trials in federal court.

Federal investigators have unlimited investigative resources when investigating federal crimes. They use wiretaps, surveillance, monitoring of computer and banking records, and they love informants. As a result, federal investigations frequently take months and years and seldom involve mistakes or sloppy work, unless those informants have gotten sloppy.

And let's not forget the darling of every federal prosecutor - conspiracy. In almost every federal criminal case you will find a conspiracy charge, to give the feds even greater investigative leverage. A charge of conspiracy changes the rules. That out of court statement made by your brother is suddenly admissible at trial because of the co-conspirator exception to the hearsay rule. Other defendants making plea bargains may claim you are guilty of crimes you did not commit or are only partially responsible for, based on hearsay and their motive to avoid a stiff sentence.

So what to do if facing a federal investigation? Here are my top three tips:

First - hunker down and be willing to endure. You can seldom change the course or scope of a federal investigation, whether you are suspected of some type of fraud or an obscure federal criminal tax violation. So settle in and hope to wait them out. It happens! Sometimes they find a bigger fish to follow and lose interest in your problems.

Second - get the best legal help you can afford. ONLY hire an experienced criminal defense lawyer who has spent time trying criminal cases in federal court. Ask him or her specifics about federal criminal trials and do not settle for someone who has never WON a federal criminal trial. You do not need a novice or a generalist - your life and liberty are on the line.

Federal criminal trials are different from state or local criminal prosecutions. They are more complex, they take longer to get to trial and you start at an investigative disadvantage because of the length of time the United States has taken to investigate before filing that criminal case.

Finally - do not talk about the case with others. There is no "frightened potential criminal defendant - old college room mate" privilege. There is that attorney - client privilege that allows us to hear the whole story in complete confidence so that we can give you reasoned advice. Real advice on what to do next.

And do not talk to the investigators. I suppose that is technically my fourth tip. But I mean it!

So hang in there and get ready for that long ride if the feds are after you. Start with these ideas, but if you need to talk to someone right now - pick up the phone and call your favorite lawyer.

In Boise - Jury Awards Sex Abuse Victim $1.9 Million

Chuck Peterson — Fri, 05 Feb 2010 06:20:48 -0700

Almost forgot about this one - Charles Hartman - pled guilty to sexual abuse of a minor in 2007. On January 13th a jury awarded his victim $1.9 million. Boise lawyer Walt Bithell represented the victim, who was 16 at the time she was molested. Speaking about the role of the civil case:

"The civil case is designed to do what the criminal system won't do - try to make the family whole. You cannot believe the impact on the victim, and the victim's family," said Bithell, who said in 40 years of practicing law he can remember only one other time when a family pursued a civil judgment in a sex abuse case.

The unanimous jury awarded $1 million in punitive damages, and the balance ($921,000) to cover general damages, counseling and the damage to the family relationships. Although most offenders go to prison and have no money to provide for their victims - that is not always the case. Hartman reportedly has business and real estate that might provide a way to recover the verdict.

So what does this say about the state of justice in Idaho? First, it is possible to win a jury verdict in a civil case that seeks compensation for crime victims. Bithell is a legend here - great trial lawyer and a great man. And Walt had the things you need to win: liability AND damages.

Second, those "run away" verdicts are urban (and country) myths! The jury awarded $1.9 million - not $99 million - like those insurance companies would have us believe. They and the legislature have limited the amount of money a victim can recover in most civil cases supposedly because Idaho juries are not "reasoned" (OK - insert the word "smart" if you dare) enough to sort out real damages from the imagined. Nonsense. Idaho juries, and juries in virtually every courtroom across the land, have a better grasp on what is real and what is imagined than do the insurance fat cats. Think AIG would get those monster bonuses if a group of 12 jurors got to decide?

Third, to win a case like this you have to be willing to try the case. That goes for the client, family and lawyers. Defendants are not going to hand over $1.9 million without a fight, so put on the gloves and get to it. You need a gladiator for your case, and the will to see it through. And trust the jury to get to the truth.

Jury Awards $31M for Drunk Driving Victim

Chuck Peterson — Thu, 04 Feb 2010 13:35:10 -0700

When I was at the Trial Lawyers College I met Daniel Rodriguez - a mild mannered civil rights lawyer from Bakersfield CA. He showed me there that he was simply one of the greatest story tellers in the class and undoubtedly one of the great trial lawyers in the country. He has a home town style that quickly captivates those around him.

He also just won the biggest verdict in California history for a drunk driving case - $31 million.

So how did he do it? Here are a couple things that made his case so compelling:

First - his clients had real damages. His primary client had brain damage and will need constant care for the rest of her life. So there were huge sums of money that will be needed to keep 19-year old Rosie Landros alive. Real damages make a real difference. So often we have potential cases where people are hurt, but seldom are they as severely hurt as the victim here.

Second - there was real liability. The driver of the other car had pled guilty to driving under the influence of alcohol (DUI). When liability is established, the only question is how much the victim is entitled to for damages and there is no issue of contributory negligence.

Third - THERE ARE NO LIMITS FOR NONECONOMIC DAMAGES IN CALIFORNIA - or Wyoming, or Montana, or Texas or a whole bunch of other states. So pain and suffering has real value in those states. In Idaho the insurance companies convinced our state legislature that juries award too much money for pain and suffering, so WE HAVE A $250,000 limit or cap on noneconomic loss. Our pain is not worth as much as the pain suffered in neighboring states.

And those same legislators clamor for tort reform while taking money from those insurance companies and their lackies.

Here's an idea - let's throw them all out of office and start over. Then we the people can restore to us the same rights we would have if we were injured in a neighboring state.

Want to read more about this case? Check out the newspaper account here. And congrats Daniel. From a class of pretty good lawyers at Trial Lawyers College, you again showed us that you are the King!

"They stole the rice!" How the Haitian Government keeps Misdirecting the World's Attention

Chuck Peterson — Wed, 03 Feb 2010 11:19:01 -0700

I have had some comments (some not so supportive) and calls (a few agreed) about my last post on Haiti. I know I am off topic here, but take a look at the Associated Press report today about the dismal failings of the government in Haiti to handle the job of providing support to its people. After seizing control of food distributions, the locals got it right: "They stole the rice!" The government stole the rice and is reportedly charging its people for food donated by the world.

I know - Haiti is chaos. But my point the other day was that the trumped up criminal charges against the Baptist missionaries is a distraction. "Pay no attention to the man behind the curtain. I am the great and powerful Oz."

America does a pretty good job of NOT taking the easy way out of our problems by diverting world attention to the minor trappings of ten folks who tried to get some kids to an orphanage. Poor planning is not a crime - usually.

So I will not return to this off-topic soon, but I will continue to believe that justice will prevail for even misguided souls on a mission to save starving kids, some of whom were apparently "given away" by well meaning parents.

In Haiti There Is No Presumption of Innocence

Chuck Peterson — Mon, 01 Feb 2010 20:13:53 -0700

I was struck by the irony of it all - abandoned and orphaned children being delivered to another orphanage by apparently well meaning Americans - while the government of Haiti cannot deliver even the most basic essentials to its people. They cannot take so much as water to their own but they presume American missionaries are trafficking in children. Sick. That is the single word to describe their miserable failure. And these missionaries who have traveled from thousands of miles away and were simply taking helpless children to another orphanage are - by the government of Haiti - presumed to be criminals. Here is how it was reported:

"But the prime minister said some legal system needs to determine whether the Americans were acting in good faith - as they claim - or are child traffickers in a nation that has struggled to fight exploitation of children."

I will not presume the guilt of Americans who spent their own money to go to the aid of children, and neither would our judicial system. Not in our country. Not in America. And that is just one of the important differences between the greatest justice system in the world and every other. We do not presume guilt, we require proof. And no criminal defendant in this country has to prove innocence. We presume you are innocent unless proven otherwise in a court of law. Yes - people are arrested and held before trial, but they are not used by the government to shift focus away from their own failings.

America. Filled with people who would give up their money for others and travel to tragedy to try and save children. We do not have to apologize here. And maybe the government of Haiti should spend a little more time trying to save its own children.

9th Circuit Says Intent to Defraud is the Intent to Cheat

Chuck Peterson — Sun, 31 Jan 2010 21:01:12 -0700

In another one of those confusing 9th Circuit fraud decisions - the Court of Appeals has upheld the convictions and sentences of three men who summoned the likes of Charles Ponzi and swindled 1700 investors out of $40 million. In US v. Treadwell the Court upheld an instruction that “intent to defraud is an intent to deceive or cheat,” and that “a defendant’s belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime.”

The Court goes on to draw an analogy to embezzlement. It is not a defense to embezzling money from your employer that you intended on returning the money to him someday - even if you honestly believed you could, with interest! That makes sense to me because fraud is simply theft - if you get the money by lying it is not a defense that you may someday give the money back, or the investor may someday get the investment back. Bernie Madoff's investors got money back, from other investor money!

And if someone was to sweet talk my wife into "giving" them my MacBook Air on the premise that we would get two new ones back in a few months, I wouldn't care whether he or she had the good faith belief that they could get me a 100% return on my bride's "investment." My computer would be gone - just like the investor's $40 million.

Look at the following language - it pulls together the key stuff here:

"According to the federal wire fraud statute, 18 U.S.C. § 1343, any person who “having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be trans- mitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice,” is guilty of wire fraud. Conviction under § 1343 means a defendant must have intended “to defraud” his victim. See United States v. Oren, 893 F.2d 1057, 1061 (9th Cir. 1990). “To defraud” under § 1343 encompasses “any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises.” Carpenter v. United States, 484 U.S. 19, 27 (1987); see also United States v. Ciccone, 219 F.3d 1078, 1082 (9th Cir. 2000) (“[T]he offense’s specific intent element . . . require[s] proof of intent to deprive the victim of money or property.”). It means to “wrong[ ] one in his property rights by dishonest methods or schemes, and usually signif[ies] the deprivation of something of value by trick, deceit, chicane or overreaching.” Carpenter, 484 U.S. at 27 (internal quotation marks omitted)"

It's the scheme that is the key - if you get the money by lying and scheming the law will be at your door. Or maybe - it will be some lawyer in a nice suit looking to collect back that "investor" money from you in a civil suit. Either way, this case is fair warning that the scheme imposes liability - both civil and criminal.

Have a question about an investment "opportunity" that seems too good to be true? Get some advice before you give away the farm.

Never Talk To The Police. I Mean It - NEVER! (OK - if your son or daughter is a cop and it is Christmas ... maybe)

Chuck Peterson — Fri, 22 Jan 2010 13:38:28 -0700

I had the call again this week: "I did not do anything wrong. Do you think it is ok if I talk to the police? Because - actually - I already talked to them and now they tell me they know what I did. I didn't do anything!"

Yes you did. You talked to the police. You thought that they would recognize you were innocent or that you could convince them you are innocent. You talked - and made their case against you better. And the truth is, your innocence may make you a bigger target than you are already.

Remember that fifth amendment thing? You know - the "you have a right to remain silent" schtick that the police always give on TV. Well - innocent folks frequently waive that right in the view that their innocence will set them free. But what happens is the police almost always find some simple little lie that makes it look like you lied about the real issue.

Imagine the questioning like this:

(Officer) "So you were at home last night?"

(You) "Yes."

"And you did not go to the Kit Kat Club?"

"No. Just ask anyone - they will tell you I was here. All night. Never left. Never went to the Kit Kat Club. Never been there. Ever. I sat here and watched TV until the news came on and then I went to bed."

"You've never been to the Kit Kat Club?"

(Long pause) "Well now that you mention it there was one time last May that I was in the parking lot of the Kit Kat Club ... but not last night."

"The parking lot? Not inside?"

"Well I may have looked inside ..."

And so it goes. You suddenly look like a liar. You lied when you said you had never been there and then you lied when you said you were only in the parking lot and you now look guilty.

Everyone has the 5th amendment right to remain silent but almost nobody ever does remain silent.

So take 20 minutes and go watch the video here. It will be the best 20 minutes you ever spend. Watch it and then watch here in the coming days as we talk more about not talking to the police.

Now go watch it - your freedom may depend on it.

When you come back remember this: nobody in the history of the world has talked their way out of trouble with the police. You may think you can but you cannot. Period. And the number of people who have falsely confessed - that's right falsely confessed - and gone to prison for crimes they did not commit is astonishing.

Yesterday I listened to Dr. Charles Honts talk about the research on false confessions and it is frightening. Even worse - the cops always say that they can "identify" a false confession from a true one. As Honts says - the research shows that anyone's ability to tell a real from false confession is "no better than chance." In over one-third of all the proven wrongful convictions (usually through DNA evidence) the defendant falsely confessed. And juries listened to the evidence and convicted an innocent man or woman.

So lots of stuff here - do yourself a favor. Do not ever talk to the police if they are investigating you for a crime (I mean in a social setting the police are usually nice folks so maybe you could talk about the Vikings or the Cubs or the weather ...) and go watch that video linked to above. And if you are a cop reading this, and you share my view or have a need to respond - do it. Let's start a discussion. Tell me about your horror story.

Three Truths About Criminal Trials - And Maurice Troutman Gets Another Chance

Chuck Peterson — Thu, 21 Jan 2010 08:47:47 -0700

Reversing a conviction for rape this week, the Idaho Court of Appeals reminded all of us that the system works when the rules leveling the playing field are enforced. That applies to defense lawyers and prosecutors alike. As Judge Gutierrez noted: "While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he is nevertheless expected and required to be fair."

So the case of State v. Troutman takes another turn down the road of justice. Noting that a "fair trial is not always a perfect trial," Judge Gutierrez finds that the error here interfered with the right to a fair trial and results in giving Mr. Troutman another day in court. If you are facing any criminal charge, you need to read this case. Go do it now.

The decision is a great reminder of the complexity of criminal trials, and it reminds me of the following THREE TRUTHS about the criminal justice system.

FIRST TRUTH - every lawyer in that trial has duties that he or she must oblige. Judge Gutierrez noted the prosecutor's duties to the people of the state, including the duties to the defendant. Hard blows are fine in the courtroom, but they must be fair blows. Mischaracterization of the evidence or the defense theory is not permitted. And mischaracterization is so easy to do in the heat of the battle in the courtroom. We are advocates in there, fighting for our client, and the fight gets hot sometimes and it is largely unscripted. When I read something that I have written here and reflect that it goes too far or misses the mark, I simply correct and re-save. There are no "re-do" buttons in an argument before that jury, so remarks need to be carefully considered. But none of us - not the best lawyers I know (Nevin or Spence) nor the best prosecutors for the State or the United States (hard to choose here) - none of us - gets it right everytime. We make mistakes and we fight too hard. In closing arguments we get going a hundred miles an hour and turn facts into stone when really the world is far more mud than rock. I won't cast stones at the prosecutor here, and neither did the Court, for I too have taken arguments at trial too far.

But the difference is critical - and the SECOND TRUTH - prosecutors have a higher duty than simply fighting the good fight.

"The role of the prosecutor is to present the government’s case earnestly and vigorously, using every legitimate means to bring about a conviction, but also to see that justice is done and that every criminal defendant is accorded a fair trial."

When I get it wrong in pursuit of an acquittal I may affect the outcome of the trial, but my duty rests solely with my client. The prosecutor must temper his or her role in the battle against a higher calling - to make sure every defendant has a fair day in court. Maybe this decision will cause prosecutors to stop and reflect on that duty as they go about their duties.

The THIRD TRUTH is that sometimes you need that review by another judge or higher court to save the day. As I said above, lawyers often get it wrong in the heat of the battle, and there is no immediate review as in a football game. We don't go to the referee upstairs with instant replay for a quick review. Judges sometimes get it wrong too. Here the appellate court thought the trial judge failed to adequately protect the defendant's rights. It happens. Thankfully the Court of Appeals was there to review the case and make it right.

So what does all this mean to you as a criminal defendant heading to trial? Get the best lawyer you can afford. Let your lawyer work hard to win your case. Trust him or her but remember - something will go wrong at trial. It always does. Hopefully your judge will catch it but maybe not. So be prepared to fight to the death to clear your name. And hope for one of those appellate miracles if that is all there is left to hope for.

Idaho Court of Appeals Says Child's Exposure to Sexual Activity May Be Admissible - Or Maybe Not

Chuck Peterson — Mon, 18 Jan 2010 18:26:16 -0700

In a decision by the Idaho Court of Appeals, it may be that evidence of a child's prior exposure to sexual behavior is admissible to answer the implicit question in every sexual prosecution: "how would a ten year old kid know about that sexual behavior?" If you have to defend against such charges, evidence that the child knew from a source other than the alleged sexual act may be proof that the child has fabricated the allegations. Still, whether the evidence will actually be admitted will depend upon the facts specific to the case.

In Idaho vs Molen, the Petitioner complained that the trial court had twice rejected his offer of evidence that the purported victim had been exposed to sexual behavior by her mother, thus making it more likely that she made up the story and had its building blocks from that prior exposure. To be clear, Molen's defense at trial rested on his assertion that the victim "SZ" made it all up, perhaps at her mother's insistence. The Court stated:

"Molen's offer of proof does not demonstrate that S.Z. had previously observed such conditions or behavior. The offer of proof indicated the evidence would show that S.Z.‟s mother exposed S.Z. to “a constant, graphic, sexually charged lifestyle . . ., including openly having sex with multiple partners with [S.Z.] in the home, openly discussing sex toys and pornography in front of [S.Z.], and openly disrobing in front of other family members in the presence of [S.Z.]” These assertions are too vague and general to establish an alternate source of knowledge from which S.Z. could have fabricated her description of Molen‟s acts.

So Molen's evidence, according to the Court, was not relevant - because it was not specific enough to meet the prosecution's allegations. I suppose this means that when a child alleges intercourse, evidence of prior exposure to intercourse would be admissible but not evidence of some other sexual act.

But the rules provide that any evidence making the existence or nonexistence of a fact in issue is relevant evidence. Isn't it relevant evidence if it answers the underlying "how would she know about that" question? Apparently not - according to the Court of Appeals.

There is one other nugget to mine in this decision - the Court held that the prosecutor erred by commenting on the Defendant's invocation of his right to remain silent when she asked him if he had waited to tell his story until after he had heard all the witnesses testimony. Error? Yes. Result in reversal? No. The error was deemed to be harmless so the Petitioner did not get a new trial.

Whether you agree or disagree, this most recent decision is important to any defendant facing an allegation of sexual battery or lewd acts. These charges are so difficult to defend against that your lawyer needs to read this case - and soon! Call your lawyer and tell him or her about this decision.

City Passes New Laws To Protect Bicyclists - But Really, Do We Need More Laws?

Chuck Peterson — Tue, 12 Jan 2010 22:26:04 -0700

Reports tonight indicate that the City of Boise has passed new city laws designed to protect bicyclists on our streets. The ordinances would arguably provide new ways to criminalize driving too close or too aggressively around bicyclists. The truth is the new laws may make us feel safer while riding two wheelers on the road but they will do nothing - unless the City decides to enforce those new laws in ways that it would not under the existing law. Was it against the law to drive recklessly and endanger the lives of pedestrians before these new laws? Of course. So why didn't the police enforce the old laws by actively pursuing inattentive or reckless drivers?

Three people died last year because of driver inattention. Good people's lives were lost and others ruined. Here is that all too simple truth - we can protect others - bicyclists and pedestrians and other drivers, by simply following that golden rule. If we all drive like we would want others to drive to protect our lives and the lives of our friends and family, the streets will be safer - new laws or not.

And riders need to do a better job too.

Last May I was almost hit near the corner of Broadway and Front. A driver in the "right turn only" lane changed his mind and went straight. I heard him accelerating behind me and off to the right just before he passed me on my right. I wondered if he would have passed one of his pals or maybe a kid that way. Had I not stayed put, I likely would have swerved in front of him as I moved to the right.

Let's just try to do a better job of accommodating others on the road - bikes, kids, grannies and others. Thanks for the new laws Boise, but its new attitudes we need.

"I Would Like To Have Been Notified." Fraud By Silence.

Chuck Peterson — Tue, 12 Jan 2010 09:19:34 -0700

A few years ago I caught a radio interview of a Canadian hockey coach who had been fired, but not told so by his team before it was reported in the press. When questioned about his situation the coach (in his best Canadian accent) reflected, "I'd like to have 'beeen' notified!"

This phrase has become a family expression in our home. Whenever someone fails to include some detail likely to impact on an action or decision, we are almost certain to mock that accent and respond accordingly.

It's the same way with investment fraud cases. Sometimes the fraud is in the execution of the scheme, as in the case of investor money that goes to fund the advisor's daughter's wedding, or his new BMW. Sometimes the fraud is in the inducement - the failure to notify the investor of the whole truth behind the planned use of their money. Even silence can constitute fraud if the person receiving your investment money has a duty to disclose facts he or she knows will impact on your decision. Usually that duty to disclose comes as a result of your relationship to the advisor or as the result of a law, like Idaho's state security fraud laws.

So when is an omission of fact material? If it is material, it may be that you have a way to get that investment back.

"An omission or misstatement is material if a substantial likelihood exists that a reasonable investor would find the omitted or misstated fact significant in deciding whether to buy or sell a security, and on what terms to buy or sell."

That is the basic premise behind the notion of fraud by omission. It's that fact that causes you to respond like a hockey coach - "I'd like to have beeen notified" - before I gave you that hundred thousand dollars!

Sorting out whether there is fraud in the omission of some fact is not as easy as it sounds. A person may have civil or criminal liability for the failure to disclose, or there may be no liability at all. If you are in this situation and need to sort out whether you have liability, get with an experienced lawyer before you get notified - of impending criminal or civil case.

Define Your Core Message - Telling Your Story

Chuck Peterson — Sun, 10 Jan 2010 08:08:22 -0700

If you are charged in a criminal case, you have a story. You know intuitively that you have to answer that "what happened" question, if only to yourself, your family and your lawyer. You understand that your freedom depends on the answer and ultimately, your story. And you likely understand that you should have a good lawyer to help you communicate the facts that you hope will keep you free. Believe me, you will not likely do it by yourself. That is the situation whether your case is civil (only money involved) or criminal.

Your story has to be refined, and a third person - your lawyer - is most likely equipped to do this. You need to define its core message and fight against the extraneous. Most people who call me about their situation have a core message, but it is lost in the detail they think is important. It goes something like this:

"They arrested my son, but didn't read him his rights. Then they took him to jail because he wouldn't tell them who stole the car and then they put him in solitary confinement and won't let him out until he tells them the names of the other guys who really did this. He was not the driver..."

A good lawyer will help you get through the extraneous and direct you to the core message - whatever that might be. Maybe the core (facts that make up the defense) is as simple as "I didn't steal the car." Maybe it is more. In any case, an experienced criminal defense lawyer should be able to help you tell your story. Now you have to trust that lawyer to get to the stuff that matters.

And how do we do that? It's not an easy thing to do sometimes. I am in a fraud case right now (a civil case) where the other lawyer submitted an eleven page brief that really got to the core. Mine was thirty pages and it wandered. So I kept refining the message until I was happier with the work, but in the end, I was amazed that anyone could cut through the clutter like the lawyer who was opposing our position.

How do we cut through that clutter and get to the core?

Write. Re-write. Refine. Cut. Re-write and do it all over again.

I think the real answer is that we help you cut to the core by learning your story, and then working on how we tell it to the jury. So tell your lawyer your story, and let him or her cut it apart.

Why Did He Plead Not Guilty - His Pants Were On Fire!

Chuck Peterson — Fri, 08 Jan 2010 18:35:39 -0700

A guy at the store was incredulous - "how could he have pled not guilty! His pants were on fire and his leg almost melted into the seats!"

"Yeah," his wife chimed in, "adds new meaning to the term fire ball!"

And so it goes. Kind of like "how could you represent someone that guilty?"

Here's how the press reported it:

"Umar Farouk Abdulmutallab's arraignment was brief — less than five minutes — and a not guilty plea was entered on his behalf. He said little, telling the judge simply that he understood the charges against him."

Whenever a defendant is arraigned in court, he or she is advised of the charges, the potential punishment and the rights that go with being a defendant in a criminal case in the US. Perhaps the most fundamental of rights is the presumption of innocence that cloaks every defendant - even the unpopular ones who might threaten the lives and safety of fellow passengers on a plane. You enter a plea of NOT GUILTY to place the burden on the prosecution to prove guilt by legal and competent evidence establishing guilt BEYOND A REASONABLE DOUBT. That not guilty plea starts the process that leads to discovery of investigative reports, consideration of the defendant's competence to stand trial, and any available defenses to the charges.

So when a guy can't blow up his own pants, and still pleads not guilty - he is asserting those same guarantees that each and every defendant has in a criminal trial. And that is big stuff. The kind of stuff that separates our system from other systems in other countries that end in "...stan." We have shed American blood for over 250 years to make sure that no defendant ever has the duty to prove his or her innocence. I served and maybe you did too. We served because we believe in the system, even when it looks like the defendant mocks its existence. Not so - we have a system that relies on procedural rules, and those rules help to keep us free.

Idaho Appellate Court Says Judge Had Duty To Order Mental Evaluation

Chuck Peterson — Thu, 07 Jan 2010 10:08:21 -0700

In a decision handed down on December 30, the Idaho Court of Appeals vacated a conviction for robbery in State vs Faron Hawkins because the district judge did not sua sponte (on his own without a motion from the defendant) order a mental health evaluation during the trial of the case. Hawkins had contacted an FBI agent concerning his fear for the safety of his sons who were in prison in Colorado. The agent told Hawkins he could not help, but offered to put him in touch with another agent. The following day Hawkins robbed a bank in Portland, and an employee identified him. The FBI agent he had contacted tried to locate Hawkins without success, and 6 months or so later he robbed another bank, this time in Boise. As he left the bank he told tellers his name and said the robbery was "all because of George Calley (the FBI agent)."

Fast forward to trial. Hawkins has proceeded pro se, but a public defender is acting as standby counsel. Hawkins and the public defender do not get along. Hawkins fires him, then later asks that the PD argue his post trial motions - including a motion for a new trial because Hawkins says he was delusional. At the hearing the PD says that if he was going to argue the motion, he would have to argue that it lacked merit. So the lawyer says his client is not delusional (impliedly) and the court orders a mental evaluation for the purpose of sentencing - not for the purpose of determining whether the Defendant could have assisted in his own defense at trial.

The appeals court says that there were plenty of reasons for the trial judge to have ordered - before trial or during - a mental status evaluation, to see if Hawkins could assist in his own defense. Case reversed, start all over folks. The decision as to whether to order the mental status evaluation is one of discretion as to the trial court, and here, there was an abuse of discretion when viewed in the totality of Mr. Hawkins' bizarre behavior and representations (for example, he claims the government implanted a chip in his ear and controlled his thoughts, he claims he worked for the CIA).

Two things I take away from this case:

First - if the defendant acts like he has mental issues, the lawyers and judges need to take a time out and get an evaluation. Strange behavior comes from somewhere and everybody needs to know where before spending days in trial. Stop the bus and get a psych eval!

Second - the US Supreme Court held that the test is different to determine competency when the defendant is represented as opposed to proceeding without counsel. To spare all the details, the test is understandably more rigorous if the defendant is pro se. So the judge has to be more attuned to the bizarre behavior and make the tough call. That is why he/she has the black robe and the impossible hours and caseload. If the court fails to order the evaluation, the right to due process is violated that the case gets reversed.

And this says nothing about the conduct of the defendant's advocate. We are advocates - and the mentally ill make that job extremely tough. Still, we have to work on their behalf. Make their argument. It might be a winner!

Someone needed to argue this guy's rights. Thankfully on appeal that happened. Nicely done Dennis Benjamin - Appellate Superlawyer!

Have an issue you want to talk about? Send in a comment and we'll send it around the horn.