Idaho Criminal Defense Blog

Deleting Emails Leads To Criminal Charges in BP Disaster

Chuck Peterson — Fri, 27 Apr 2012 08:24:03 -0700

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 investigators. Notably, the emails included his assessment that there was too much oil flowing out of the damaged well for the "top kill" procedure to contain the spilling crude. His estimated flow of over 15,000 barrels per day (in the destroyed email) was far different than the 5,000 barrels reported by the company. Authorities also allege that his emails reported the "top kill" was not working although BP was telling everyone that it was.

Here's the take away: if someone is investigating you, or your employer, and if you have emails, text messages, notes or other documents, expect that they will be requested by authorities and that you will have to produce those documents. Destroying the evidence in this digital age is virtually impossible and illegal.

Which brings us to the bigger question: should you be trying to hide the truth? The fifth amendment to the constitution protects you from having to be a witness against yourself, but it does not shield you from having to produce all documents you have control over. Electronic discovery in both civil and criminal cases is a major issue. It is costly and time consuming to search computers, phones and tablets for documents relating to a case, but that is part of the cost of today's electronic age.

If you have a question about how to handle electronic evidence in a civil or criminal case, get some help from an attorney with experience in this area. It is not uncommon to find that there are hundreds of thousands of emails and text messages to be reviewed in a big civil or criminal matter, so getting control over those documents is critical.

And don't try to destroy the evidence by pressing delete. The documents will still exist on a server somewhere and the government if very good at getting to those copies of your messages.

Supreme Court Tightens Rules on Plea Bargains

Chuck Peterson — Thu, 26 Apr 2012 07:28:29 -0700

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 a lesser sentence than what the state would ask for during trial. However, a plea bargain can only be effective if the defendant is aware of it in the first place.

In a 5-4 decision, the Supreme Court ruled that defense lawyers must inform their clients of any plea offers and give competent advice about whether to accept them. To do otherwise would violate the 6^th Amendment right to effective assistance of counsel.

The two cases before the court involved a man in Missouri who pleaded guilty to driving without a license, and a Michigan man who was convicted of assault and attempted murder after following his attorney’s advice and rejecting a plea bargain.

In the Missouri case, Galin Edward Frye was arrested for driving without a license for the fourth time, a felony. The prosecutor offered two deals, including one that involved pleading to a misdemeanor and a three month recommended sentence. Frye’s attorney never told him of the offer, which ultimately led to him entering a guilty plea and getting a three year sentence.

In the Michigan case, Anthony Cooper repeatedly shot a woman, and was charged with four counts, including assault with attempt to murder. The prosecutors offered a plea deal where two of the charges would be dropped and Cooper would serve a maximum of 85 month in prison. Due to incorrect advice from his attorney, Cooper rejected the deal and was sentenced to a maximum of 30 years in prison.

In the majority opinion, Justice Kennedy wrote:

“This court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused… when the defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”

Justice Scalia dissented, claiming that the decision was “absurd” and that courts would be inundated with criminals making claims about how their plea bargain rights were violated. He also noted that it was unfair that prosecutors were being punished with extra work due to the errors of defense counsel. In his own dissent, Justice Alito also worried about “[expenditures] of scarce prosecutorial or judicial resources.”

Both cases will be sent back down to the lower courts for further review. It remains to be seen if this “flood of claims regarding the violation of plea bargain rights” feared by the conservative justices will actually come true.

So what will be the impact on plea bargains in Idaho? First, these cases raise the bar for all of us who advise clients on the effect their plea will have. Make certain you understand what the State or US is agreeing to before you plead. Second, ask your lawyer if he or she has had any additional offers from the prosecution. Formal offer or not, you need to know just where your case is going and just what the prosecutors will do in exchange for your plea.

Supreme Court permits strip searches for even the most minor of crimes

Chuck Peterson — Wed, 25 Apr 2012 09:08:20 -0700

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 an unreasonable search and seizure under the 4^th Amendment of the Constitution. Not according to a recent ruling by the U.S. Supreme Court. The High Court recently announced that corrections officers are now permitted to perform a strip search on any inmate, at any time, regardless of the type of criminal charges that the inmate is facing.

In a divided decision, the Court decided the case of Florence v. County of Burlington, which involved the arrest and subsequent strip search of Albert Florence. Mr. Florence was riding in the car with his wife when she was pulled over for speeding. The officer realized that there was a warrant out for Mr. Florence’s arrest based on an unpaid fine. Mr. Florence spent a week in jail and was strip-searched on at least two separate occasions. Mr. Florence argued that since his alleged crime involved neither drugs nor violence, the corrections officers did not have reasonable suspicion necessary to search him and, thus, the search was unreasonable under the 4^th Amendment.

The Court disagreed. Justice Kennedy wrote the majority opinion and focused on officer safety, stating, “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” As an example Justice Kennedy cited one of the September 11^th hijackers who was pulled over for speeding two days before he allegedly hijacked United Flight 93. Kennedy also argued that the corrections officers’ interest in maintaining safety in jails outweighs the potential for unreasonable and unnecessary searches of certain inmates. Further, he stated that by establishing strict regulations regarding strip searches, more inmates would be deterred from trying to smuggle contraband into the jail in the first place.

The dissenters argued in favor of the standard that requires corrections officers to have reasonable suspicion of contraband in order to execute a strip search. To execute a strip search on a person accused of committing a minor crime that deals neither with drugs nor violence, seems, to some, to be equivalent to an unreasonable search of a person without a warrant. The question that has not been answered is why a warrantless search is a violation of the 4^th Amendment while a strip search of a person who is highly unlikely to ever attempt to smuggle contraband into a jail is not?

Headed to trial? Got a case that you want to talk about? Give us a call at (208) 342-4633.

Zach Neagle Stays In Custody - Three Things You Can Learn About Your Case From His

Chuck Peterson — Tue, 10 Apr 2012 07:16:21 -0700

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 the Department. They filed the request because in the course of Zach's treatment, unsupervised home visits are the next logical step. The Judge's ruling was neither unexpected or unfair. The facts of the case are tough to explain and the defense that might explain the Zach's actions would be nearly impossible to prove.

As I was thinking about this result, a friend reminded me that there are plenty of lessons to be learned about any case from Zach's. This is true, whether you have a civil or criminal case pending.

Here are three things I learned that might help you in your fight for justice.

First and foremost, remember to keep your audience first. If you are going to trial before a jury, the jurors are your audience. If you are at a sentencing proceeding, the audience is the Judge.

What is it about your case that will move the audience?

There is really only one story in life; "good vs. evil." Think about your favorite story and see if I am right. From Hamlet to the Hunger Games the bottom line is the same. So in front of a Judge, who is tasked first with protecting society, the focus needs to be on reassuring the Court that your client is "good," not "evil." That is a tough task for most of us in a contested, high profile criminal case. The same is true in any good civil case. Your task there is to portray your client (plaintiff or defendant) as the good guy. When done correctly, your client's story can move the "audience" to come to his or her aid.

Second, my experience has taught me to take my time and let the case develop. I was involved in a big racketeering case years ago in which my client was alleged to have stolen money from his clients. Over time, it became clear that the clients really supported my client and thought he had provided great service. There were some accounting errors and he had tried to make each client's balance right, but still the State insisted it was fraud. At trial, he took the stand and told his story and when it was over, the jury saw that the truth did not support a criminal conviction.

In Zach's case, time is proving that this is a young man deserving of a better life and hopefully, a shot at freedom. But that will take time, and he must be willing to wait patiently until he has satisfied the Court that he can be free. Patience is a very tough characteristic to develop.

Finally, if you have a case that is in the glare of the news media, walk away from the cameras. Try your case in the courtroom, not on the news. It is tempting to run to the press, but that temptation seldom works to your advantage. Work your case. Learn the facts. Understand the law. And be nice.

A friend of mine who is arguably the "greatest trial lawyer in the history of the world" stopped me one time as I prepared to cross-examine a cop about how he had set up my client. He likely saw that I had the "killer eyes" on and was headed to destroy that witness.

"Be nice."

"Why? I want to kill this guy. Didn't you hear what he said?"

"Be nice. Jurors hate you when you kill him."

And that advice applies even to the media. Be nice.

Headed to trial? Got a case that you want to talk about? Give us a call.

Let's Talk About Objections - Practical Tips

Chuck Peterson — Fri, 09 Mar 2012 09:09:19 -0700

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 ...

If You Fall Out of a Third Story Window, Is the University of Idaho Responsible - Most Comments Say "NO"

Chuck Peterson — Thu, 08 Mar 2012 18:41:03 -0700

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.

149 Reasons Why That Fingerprint Expert Might Be Mistaken

Chuck Peterson — Tue, 06 Mar 2012 12:06:31 -0700

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.

Preparing for Trial - the KEY to success!

Chuck Peterson — Thu, 19 Jan 2012 11:18:40 -0700

A young lawyer came to see me yesterday.

"How do you win cases?"

The answer to that is not as simple as you might imagine. A friend and mentor says that he has "not lost a jury trial in over thirty years." Really? No losses?

"Well, it kinda' depends how you define 'lost'!"

And that may be true, but what I have learned from that friend and mentor, and from watching some of the best trial lawyers in the land is that preparation is the key to success in court.

The difference is preparation. Period.

Not a Harvard education. Not having worked as a prosecutor, public defender, or judge. And certainly not having been in the courtroom for 20 or 30 years.

The key to success - whether that is winning outright or obtaining the best possible result for your case - is preparation. Preparation is time spent getting ready for trial.

So how can you help your lawyer get ready to win your case? Here are three ideas:

First - tell the lawyer the whole truth.

Second - empower the lawyer to spend the time he or she needs to get fully prepared.

Third - take his or her advice!

And if you are a lawyer reading this, remember that our obligation is to get ready for trial as best we can. If you don't have time for the client, don't take the case.

Now back to preparing for trial for me. One to go in January, another in February, and then three more later this year. Five trials may not sound like a lot, but getting ready to try those cases can take a lot of time.

How about you? Getting ready for trial? If you're a lawyer with issues you need to bounce off another lawyer, give me a call. Let's talk about your case.

Three Reasons That Public Defender May Be Your Best Alternative

Chuck Peterson — Thu, 29 Dec 2011 14:28:44 -0700

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.

Will States Go To .05% for DUI: DUI expert following this

Chuck Peterson — Wed, 14 Dec 2011 10:49:52 -0700

I frequently check out Lawrence Taylor's DUI blog for info on trends and tips on trying these tough, tough cases. Check out his recent post that examines where we are headed with respect to drinking and driving: are we likely to take the "legal limit" even lower. Currently the magic number is .08% - but will that number go even lower? The law is intended to reduce the number of intoxicated drivers on the road. Lowering the blood alcohol level even lower serves only to trap drivers who may well not be intoxicated at all. Check out Taylor's post as he discusses this.

Bujak Charged With Grand Theft - Tells Investigators He Took The Money

Chuck Peterson — Tue, 13 Dec 2011 16:36:30 -0700

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.

Injured by an Idaho State, County or City Employee? You Need To File A Tort Claims Notice To Bring A Lawsuit

Chuck Peterson — Thu, 20 Oct 2011 09:30:18 -0700

If you have been injured by an Idaho state, county, or city employee and you want to bring a civil lawsuit for damages, you MUST file a notice of tort claim before you can bring a lawsuit to recover for your injuries. Even if the potential defendant is not an employee - you still must file the notice of tort claim to have a chance to recover money damages from injuries or death that resulted from a government employee or agent's negligence. The law in Idaho requires that the tort claims notice must be filed WITHIN 180 days of the date of your injuries. Again, if you do not file the notice of tort claims within that time, you HAVE NO RIGHT TO SUE.

If your case involves any of the following types of entities or their employees or agents, you will need to file a Tort Claims Notice before you can bring suit:

State office or department;
State agency, authority, commission or board;
State hospital;
State college or university;
County;
City;
Municipal Corporation;
Health District;
School District;
Irrigation District;
Special Improvement or Taxing District;
Hospital or Nursing Home established by a County or City;
Any other State or local governmental entity

There is no "form" that is required for your tort claims notice, but it must include certain information including the conduct and circumstances which brought about the injury; the nature of the injury or damage; the time and place the injury or damage occurred; the names of all persons involved; the amount of damages claimed; the residence of the claimant.

This is a very important requirement that you may not get right if you rely on your own understanding of the law. If you get this one wrong - you have no case, so get some help. Call a lawyer who has experience with this. I have had to tell that potential client that his right to sue under state law was gone because he had failed to file a proper notice of tort claim, and that was a conversation I will never forget. So get some help.

You May Be Entitled To Recover Damages For Sexual Harassment In Idaho

Chuck Peterson — Tue, 04 Oct 2011 08:05:31 -0700

One of those "can I recover" questions last week involved sexual harassment. Just what is sexual harassment and when do you have a case that will allow recovery in an Idaho court?

Sexual harassment includes any unwanted, unwelcome, or unsolicited conduct that is sexual in nature. It can include touching, inappropriate jokes, crude or derogatory statements, sexual advances, offers for benefits such as money or a promotion in exchange for sexual favors, displays of pornographic materials, and indecent exposure.

Sexual harassment is most often associated with conduct in the workplace that interferes with your ability to effectively perform their job. Such conduct in the workplace can come from a boss, a co-worker, or anyone else you come into contact with either at work or in association with work. An employer’s liability for harassment in the workplace is not limited to the conduct of its employees.

Sexual harassment also may occur outside of work. A person can also be sexually harassed by a friend, a stranger, or even a family member. Harassment can occur at work, school, home, or in public. It can be from someone of the same sex or the opposite sex.

Whether it is meant to be in good fun or hostile, sexual harassment can leave a lasting impact. It can affect performance at work, school, and daily life, and the conduct has been shown to increase if ignored.

If you’ve been sexually harassed, we can fight for your rights as a victim. Give us a call to discuss whether you have a case.

Hit While Riding Your Bike In Idaho? Three Things You Need To Know

Chuck Peterson — Wed, 21 Sep 2011 08:47:52 -0700

This past month has resulted in at least two car-bicycle collisions, each with its own tragic consequence. Several weeks ago, Boise Police Officer Chris Cowling was struck by a driver in Caldwell. Officer Cowling was the victim of a hit and run that has left him hospitalized and facing a long recovery. A little more than a week ago another Boise bicycle rider was struck by a car making a left turn. That driver was cited for an infraction. Some might say that this year has been kinder to bicycle riders than last year - when three riders were killed. Here are three things you need to know if you have been hit by an Idaho driver while riding your bike:

First - you have the right to collect your damages from the driver of a vehicle that strikes you while riding your bike, but bicycle riders have obligations and duties to others on the road too. Those duties include your duty to follow the traffic laws. If you fail to follow those laws and are struck as a result, your own negligence may preclude a full recovery.

Second - like any other civil action in Idaho, there are time limitations on your right to recover. Generally in Idaho a civil action for negligence requires that you commence your suit in two years. The actual statute may give you more time if you were a minor at the time.

Third - you need to keep good track of the records that demonstrate your damages. Keep copies of those medical bills and pharmacy records so that you can demonstrate your actual damages. The same is true of your lost time at work. And keep a simple log of your recovery - who you saw, what physical therapy or medical visit occurred and when, and how you felt.

Most importantly, take time to heal. We ride because we love being out there on the road - so get back in shape and back out with friends riding in Boise.

I was reminded how dangerous riding bikes in Boise can be last night when a car decided to play "chicken" with me as I was riding in Columbia Village. My iPhone camera did not capture that blue sedan as it bore down on me - and I chased the driver back to Federal Way to get the license number, but never quite got there. Here's hoping that idiot does not strike some rider - and here's hoping Chris Cowling and other cyclists hit recently on the roads have a full recovery.

Preparing For A Court Appearance - Speak Like You Mean It

Chuck Peterson — Wed, 21 Sep 2011 07:43:26 -0700

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.

Just One Tool - Protecting Your Sixth Amendment Rights

Chuck Peterson — Thu, 08 Sep 2011 10:22:30 -0700

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.

Sivak's Death Penalty Reversed - Prosecutors Knowingly Permitted Jailhouse Snitch To Lie

Chuck Peterson — Wed, 07 Sep 2011 12:12:40 -0700

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.

Domestic Battery or Domestic Violence in Idaho - Prosecutors In Ada and Canyon County Treat These As Very Serious

Chuck Peterson — Wed, 07 Sep 2011 09:21:42 -0700

Today's post is authored by Boise lawyer Courtney Peterson. Courtney's practice focuses on criminal defense and child custody.

What does it take for your simple assault or battery charge to be elevated to a crime of domestic battery or domestic violence? Not much. An act as simple as grabbing your live-in boyfriend or girlfriend by the wrist might be charged as a domestic violence crime. In Idaho, you don’t have to married to someone to be accused of domestic violence. All it takes is evidence that an alleged victim is a “household member.” Aside from a spouse, “household member” can include a former spouse, a person you have a child with regardless of whether you’ve been married or not, or a person who you cohabitate with. If you’re charged with a domestic battery or assault, not only could you be spending more time in jail, but you run the risk of being charged with a felony if this isn’t your first offense. A first offense domestic violence charge, whether a battery or assault, carries up to 6 months in jail and a $1,000 fine. A second charge within 10 years has a maximum penalty of 1 year in jail and a $2,000 fine. If you’re charged with a third within 15 years, that’s a felony. You face up to 5 years in prison and a $5,000 fine.

Domestic violence allegations are always treated differently than the average battery or assault. Alleged victims are generally taken at their word, often not interviewed to the extent that an alleged aggressor is. Police automatically assume you’re guilty and will treat you as such. They might cut corners in investigating the incident and you might never get to tell your side of the story. Once you’re charged with a domestic violence act, a judge will immediately issue a No Contact Order against you to protect the alleged victim. Until you get a chance to be heard by the judge, these orders generally prohibit any contact whatsoever. You will likely have to move out of your home until the order is terminated and might be prohibited from seeing your children for a while.

Police and prosecutors take this charge seriously, and so should you. This is not something you want to fight on your own. You need an attorney with experience who can tell your story. If you’ve been charged, give us a call.

Attention Anyone Charged With A Second DUI or An Excessive DUI - Your Bond May Be In Jeopardy!

Chuck Peterson — Tue, 06 Sep 2011 09:53:14 -0700

A change to Idaho Misdemeanor Rule 5(b) now requires that anyone charged with either an excessive DUI (BAC over .2) or a second DUI offense appear for arraignment in person within 48 hours. This rule now requires a personal appearance, the filing of a notice of appearance by your lawyer will not do.

What is behind this rule change? There is no statute in Idaho that requires a personal appearance for a second DUI offense. More importantly, the rule change is said to have occurred because prosecutors on the Misdemeanor and Infraction Rules Committee complained that persons charged with their second DUIs were getting another DUI before the second had been adjudicated.

Does this ever happen? Probably. Does it happen often? I don't think so. Then what is the practical effect of the rule change?

Prosecutors now routinely ask the judge to add a condition to pretrial release: alcohol monitoring.

Say that you have a second DUI and post a $1000 bond. At the arraignment, the Judge will consider the request and decide whether to add this condition (or any other condition) to your release. If added, you will have to pay the cost of the SCRAM device - which monitors for alcohol use. If you cannot pay the SCRAM cost, you cannot stay out on bail.

Look - a DUI can ruin your day. A second DUI or an excessive DUI has even more serious consequences - including that one year drivers license suspension the will not allow you to drive anywhere, not even to work. But adding alcohol monitoring as a condition of release simply makes it more likely that defendants will not be able to stay bonded out and employed.

As I said, the prosecutor will ask the judge to add this condition to your release. The judge may deny that request and order that you abstain from using alcohol instead. Magistrate judges in Ada County do a pretty good job of making their own decisions about what it will take to cause a defendant to comply with the conditions of release. But be careful if you are headed to that arraignment. Be prepared to tell the court why the alcohol monitoring is not needed in your case.

Facing a DUI or other criminal case in Idaho? Call us for a free consultation to protect your rights.

Getting Discovery In A Criminal Case In Idaho - Sometimes It Takes A Ladder!

Chuck Peterson — Fri, 02 Sep 2011 10:24:08 -0700

In a criminal case, discovery is the process of obtaining copies of the important documents from the State. Depending on the case, there may be tens of thousands of pages for the lawyer to review. In one of our pending federal criminal cases we have over 14,000 pages of reports, and thirty or so hours of video and audio recordings! A ladder might be just the ticket.

The discovery rules require the prosecutor to turn over the investigative reports, witness statements, accused's statement to the police, seized documents and other information about the case so that we can review them to prepare for trial. In Ada County most discovery from the State comes one of three ways: by voluntary disclosure, by request, or if needed - by filing a motion to compel discovery.

Here is the key thing to remember about discovery: a person facing a criminal charge has an absolute constitutional right to discovery so that he or she can prepare for trial or settlement of the case. Get it, review it, and decide how to use it.

Once we get the discovery, we review the documents and use the information to help us determine the strength of the case. There will likely be statements taken by police officers investigating the case. There may be audio recordings and video recordings, photos, illustrations and reports. And if the accused has made a statement to the police, that statement must be provided for our review. The defendant's criminal record will be included, as will any expert or scientific reports.

Our clients need to see and review the case materials so that we can have a meaningful discussion about whether this case should be tried or settled. Based on the discovery materials we review, we will likely make a recommendation as to how we can best proceed.

If there are matters disclosed in discovery that may not be permissible evidence against our client, we may file a motion "in limine" to keep that evidence from being admitted at trial. The same is true of evidence that we believe was unlawfully seized or obtained - we may file a motion to suppress the evidence or statements of the accused. So discovery in a criminal case is an important tool for the criminal defense lawyer to use in assisting his or her client.

Have a discovery question? Wonder whether the search of your property was lawful? Give us a call.