Ninth Circuit Finds Officer Not Entitled to Qualified Immunity

Remember seeing the video of this old lady getting tased by the police officer for being too sassy during a traffic stop? Well the Ninth Circuit has held such police conduct constitutes excessive force and a violation of civil rights. Further, it found the police officer was not entitled to qualified immunity.

Here's a link to a NYT article about the case: http://www.nytimes.com/2010/01/01/us/01taser.html?hpw
And here's a link to the decision: Bryan v. McPherson, http://www.ca9.uscourts.gov/datastore/opinions/2009/12/28/08-55622.pdf.

Mr. Bryan was tased during a traffic stop for a seatbelt violation. He was upset -- shouting gibberish and hitting himself in the quadriceps -- but was unarmed, did not threaten the officer or attempt to flee.

The Court wrote:

"We thus conclude that the intermediate level of force employed by Officer McPherson against Bryan was excessive in light of the governmental interests at stake. Bryan never attempted to flee. He was clearly unarmed and was standing, without advancing in any direction, next to his vehicle. Officer McPherson was standing approximately twenty feet away observing Bryan’s stationary, bizarre tantrum with his X26 drawn and charged. Consequently, the objective facts reveal a tense, but static, situation with Officer McPherson ready to respond to any developments while awaiting back-up. Bryan was neither a flight risk, a dangerous felon, nor an immediate threat. Therefore, there was simply no immediate need to subdue Bryan before Officer McPherson’s fellow officers arrived or less-invasive means were attempted. Officer McPherson’s desire to quickly and decisively end an unusual and tense situation is understandable. His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force." Slip Op. p. 16753 (internal quotes, brackets and citations omitted.)

This is an interesting case which will hopefully put the brakes on some of the abusive police practices we've seen. I'll keep an eye on it to see if it goes en banc or up to the Supreme Court.

Happy New Year to all and thanks for your readership and support over the past year.

Convictions Reversed for Failure to Sua Sponte Order Competency Examination

Yesterday the COA reversed robbery convictions where there was a question of whether the defendant was competent either to stand trial or represent himself due to delusional thinking. (The defense in the case was that the CIA, NSA and other "black ops" organizations forced the defendant to rob the banks.) The Court held that the district court erred in failing to sua sponte order a competency evaluation given the evidence of bizarre thinking prior to and during the trial. The conviction was reversed and the matter remanded for a competency hearing and a new trial if the defendant was found to be competent.

State v. Hawkins, http://www.isc.idaho.gov/opinions/Hawkins,%20Faron.pdf.

An Important Message from the Supreme Court Regarding the Extremely Short Period to File a Notice of Appeal in TPR and Adoption Cases

Here is a message from Debra Alsaker-Burke, Child Protection Program Manager at the Supreme Court:

New Appeal Deadline on Magistrate Court Decisions – Termination of Parental Rights and Adoption.

On July 1, 2009, new rule IAR 11.1 became effective. This rule provides that an appeal from an order granting or denying the termination of parental rights or an order granting or denying an adoption is appealable by right to the Supreme Court so the district court is no longer involved in these appeals and is no longer an option for such an appeal. I.A.R. 11.1 also provides that the appeal is to be expedited in accord with I.A.R.12.2. Rule 12.2 governs the expedited review for appeals brought pursuant to Rule 11.1 as well appeals in custody cases brought by way of permissive appeal pursuant to Rule 12.1 and sets out specific time limits for these appeal. It specifically states that a notice of appeal filed pursuant to 11.1 (termination or adoption) must be filed within 14 days of the order. Several of these appeals have already been dismissed for failure to file within this deadline, which is jurisdictional. In addition, several of these appeals have been significantly delayed by motions for waiver of fees or appointment of counsel on appeal. If you file one of these motions please bring it to the clerk and the court’s attention that it is an expedited appeal.

Effective January 1 appellants are also being asked to designate on the notice of appeal whether it is an expedited appeal. This order will be on the court’s website soon.

There has also been a change in I.A.R. 35 (d) regarding briefing that requires all minors to be referred to by initials or some other designation. Briefs are now scanned and placed on Lexis and this is to protect the privacy of the minor.


The Supreme Court sent out a similar warning not too long ago (See SCOIDBlog October 23, 2009, Alert: Two New Rules Affecting Parental Termination Appeals). Apparently the problem persists. So, if you work in a law firm that handles such cases be sure to alert the other attorneys in your office of the rule changes.

No Contact Orders Must Contain a Termination Date

Today, the SCOID released its opinion in State v. Cobler. Procedurally, the case came before the Court on the State's petition for review following the Court of Appeals' decision released last year. http://www.isc.idaho.gov/opinions/coblerSUB34308.pdf. (See SCOID blog from last December http://scoidblog.blogspot.com/2009/01/court-of-appeals-decided-state-v.html) The Court of Appeals previously held that the no contact order which prohibited Cobler from having any contact with all minors, violated his fundamental right to parent his children.

On review, Cobler raised multiple challenges to the no contact order. The Supreme Court, however, only addressed whether the trial court's denial of his motion to modify the order was an abuse of discretion. Importantly, the order originally issued by the magistrate judge noted it would terminate "upon dismissal of the case."

After pleading guilty and having been sentenced by the trial court, Mr. Cobler filed a motion to modify the no contact order. The order issued by the trial court vaguely stated that the motion was denied, but failed to recite the grounds upon which the district court denied the motions other than the observation that the order was to remain in effect until dismissal of the case. Given the procedural posture of the case at that point, the Supreme Court noted "the no contact order would, unless modified, have perpetual existence." Accordingly, the Court held that "the district court abused its discretion in basing the denial of the order on the apparent ground that the order was to remain in effect until the dismissal of the case."

The court also addressed Mr. Cobler's challenge to the trial court's denial of his Rule 35 motion. In support, he submitted new evidence in the form of honest remorse and good behavior while in prison. In its brief denial of Mr. Cobler's challenge, the Court noted "prison behavior is not the type of new or additional information that will support a Rule 35 motion, as it could not serve as an underlying basis for Cobler’s sentence."

The opinion can be found at: http://www.isc.idaho.gov/opinions/Cobler%20Opinion.pdf

Where the Wild Things Aren't

The Court issued two opinions last Thursday. My apologies for not posting them sooner. Both dealt with the admissibility of evidence.

In the first case, the Court upheld convictions for misdemeanor offenses of possession of wild or exotic animals and possession of deleterious exotic animals without a permit. (It is not clear from the opinion precisely what kinds of animals were being possessed, but I'm pretty sure they were Wild Things.)

The first issue on appeal was whether Payette County's passage of an ordinance banning the possession of wild or exotic animal after the defendant had already purchased property to construct a zoo violated the impairments of contract clause. The Court did not reach this issue because it found there was not sufficient evidence of a contract.

The second issue was whether the court erred in excluding copies of orders from the bankruptcy court. The Court held that there was no error because the documents, although public records, where not certified copies as defined in IRE 902(4) and required by IRE 1005(a).

State v. Korn, http://www.isc.idaho.gov/opinions/State%20v.%20Korn%20-%20FINAL.pdf

In the second case, State v. Watkins, http://www.isc.idaho.gov/opinions/State%20v.%20Watkins%20-%20FINAL.pdf, the Court reversed a conviction for L&L. At trial, the court permitted a DNA expert to testify about test results even though she was not the person who conducted the tests.

The Court held that was error to allow the expert to testify about the chain of custody because she was not the one who received the evidence. The Court also held that the expert's testimony about the results was not admissible as either a Record of Regularly Conducted Activity (IRE 803(6)) or under IRE 703 (Basis of Opinion Evidence by Experts).

Congratulations to Erik Lehtinen of SAPD!

To Scoid Blog on its First Anniversary

Scoid Blog has spent a year now offering information, great images, humor, and community. Thank you Dennis and all contributors. I don't know about you, but I can't settle down to my work day without checking out the news and views on Scoid Blog.

May it enjoy a long and happy life.

"I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It's when you know you're licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do." ~Atticus Finch, To Kill a Mockingbird

Substitute Opinion in Lampien

The Court issued a substitute opinion in State v. Lampien today. The original opinion came out on October 2nd and was SCOIDBlogged in "State Breaches Plea Agreement by Opposing Rule 35 Motion When it Agreed to be Bound to Sentencing Recommendation."

The opinion has been amended by the addition of language on pages 10-11 and 13 explaining why the breach of plea agreement issue was adequately preserved for appeal. Here's the substitute opinion: http://www.isc.idaho.gov/opinions/Lampien%20SUBOpinion.pdf.

A Pardoned Conviction Counts in Federal Court if it was not Granted Due to Innocence or Errors of Law, or Otherwise Rendered the Conviction a Nullity.

The Board of Pardons and Paroles granted a pardon to Clint Bays who was on parole for vehicular manslaughter. He was later convicted of a drug offense and a gun offense in federal court. He argued there that his pardoned conviction should not count as criminal history in his sentencing guideline calculation. The District Court disagreed with Clint and the Ninth Circuit affirmed.

Here's a link to the Ninth Circuit Blog summary: http://www.circuit9.blogspot.com/

Here's a link to the published opinion: http://www.ca9.uscourts.gov/datastore/opinions/2009/12/17/09-30124.pdf


Clint is a well-known, respected and beloved private investigator who did a lot of good work for defense attorneys here in Southern Idaho. It's a real shame what happened to him. It's also a shame that pardons don't mean as much as you'd think they would.

How to make Lemonade out of this opinion: One of the reasons the Ninth Circuit concluded that the pardon was not an "expungement" (which would not be counted) is that "the Idaho Legislature has implemented statutory procedures which enable a defendant to request that a prior conviction be expunged," citing to I.C. 19-2604 and 20-525A. "If the state court grants the requested relief, the conviction is vacated and becomes a nullity. . . . This relief is more extensive than the mere removal of the punishment and effects of a finding of guilt." To my knowledge, this is the first time the Circuit has suggested that a conviction dismissed under I.C. 19-2604 does not count in the criminal history calculation.

Rule 35 Has Been Amended

Rule 35 was amended and became effective on December 9. (To no great fanfare, if I might say so.) The new rule reads as follows (the new text has been underlined):

Rule 35. Correction or reduction of sentence.
(a) Illegal sentences. The court may correct a sentence that is illegal from the face of the record at any time.
(b) Sentences imposed in an illegal manner or reduction of sentence. The court may reduce a sentence within 120 days after the filing of a judgment of conviction or within 120 days after the court releases retained jurisdiction. The court may also reduce a sentence upon revocation of probation or upon motion made within fourteen (14) days after the filing of the order revoking probation. Motions to correct or modify sentences under this rule must be filed within 120 days of the entry of the judgment imposing sentence or order releasing retained jurisdiction and shall be considered and determined by the court without the admission of additional testimony and without oral argument, unless otherwise ordered by the court in its discretion; provided, however that no defendant may file more than one motion seeking a reduction of sentence under this Rule.
(c) Credit for time served prior to sentencing. A motion to correct the computation of credit for time served prior to sentencing may be made at any time.

The amendment was in response to State v. Clements, #35665, and a suggestion set forth in the concurring opinion. (SCOIDBlog discussed Clements in An Illegal Sentence Must be Illegal on its Face In Order to Get Rule 35 Relief. (October 15, 2009).)

Fifth District DJs Selected

Eric Wildman, a staff attorney for the Snake River Basin Adjudication, has been appointed to take retiring Judge R. Barry Wood's position and Jonathan Brody, chief deputy prosecutor for Minidoka County, will succeed Judge (now Court of Appeals Judge) John Melanson.

Congratulations to both.

Friday's Arguments

The Court hears three cases today, one of which is a criminal case.

To read the Court's Press Releases on the civil cases, click here: http://www.isc.idaho.gov/ISC_PressRelease_12.11.09.pdf

The criminal case is another appeal from the summary dismissal of a post-conviction petition. The summary below is an abbreviated version of the press release.

In Schoger v. State, Ms. Schoger was charged with the 10 year mandatory minimum version of trafficking in methamphetamine (400 grams or more). The state agreed to amend the charge to the 5 year version (at least 200 grams) and to recommend the mandatory minimum.

At the change of plea hearing, however, the Court did not accept the proffered plea because Schoger, while admitting she had 56 grams of methamphetamine on her person and that there was some other methamphetamine in a bedroom at a house she shared with her boyfriend, told the judge that she had not intended to exercise control over the methamphetamine. The Court also refused to accept a proffered Alford plea. A jury later found her guilty of the 10 year charge.

On post-conviction, Ms. Schoger alleges that trial counsel provided ineffective assistance of counsel by failing to explain "the factual and legal basis necessary to plead guilty," and that appellate counsel provided ineffective assistance of counsel by failing to argue that the district court abused its discretion by rejecting Schoger’s guilty plea.

Failure to Rule Upon Motion for Appointment of Counsel is Harmless Error When Post-Conviction Petition Does Not Raise Possibility of Valid Claim.

Melton v. State. For more: http://www.isc.idaho.gov/opinions/melton%20final%20opn.pdf

Today at the Court: 12/9/09

The Court will hear three arguments today, two of which involve criminal cases. The first criminal case is McKay v. State and the other is State v. James.

McKay is a post conviction case arising from a felony vehicular manslaughter conviction. Mr. McKay argues that the elements jury instruction was erroneous because it omitted the language from the Pattern Jury Instruction that the "operation of the motor vehicle in such unlawful manner was a significant cause of the death" and substituted language which did not accurately describe the elements. Mr. McKay's petition alleges his trial counsel was ineffective for failing to object to the instruction and that his appellate counsel was ineffective for failing to challenge the instruction on direct appeal.


In James, the police searched a car that James was a passenger in and found drugs and drug paraphernalia. He, along with the others, was questioned by the officer, without the benefit of Miranda warnings. James said that the drugs were his after the officer threatened to arrest them all if no one admitted ownership. The district court found that James was not in custody and Miranda warnings were not required. The Court of Appeals disagreed. The Supreme Court will finally decide.

Today's Oral Arguments

The Court will hear two criminal law cases today.

In State v. Cobler, the defendant was charged with sexual battery of a minor. The court issued a no contact order prohibiting Mr. Cobler from contacting the victim and all minors until dismissal of the case, even though he had three minor children. The district court later sentenced him to prison but did not vacate the no contact order. Mr. Cobler filed a Rule 35 motion and a motion to modify the no contact order to allow contact with his children. The court denied both motions.

On appeal, Mr. Cobler challenges the validity of the continuing no contact order.

The Court of Appeals opinion, holding that the no contact order violated Mr. Cobler’s fundamental rights as a parent, is available here: http://www.isc.idaho.gov/opinions/coblerSUB34308.pdf


In State v. Peterson, the appellant was convicted of felony possession of a controlled substance. Mr. Peterson argues that, under a plea agreement in another case, the State promised not to charge him for that offense.

The Court of Appeals unpublished opinion, affirming the district court, is available here: http://www.isc.idaho.gov/opinions/peterson33137.pdf

Today's Docket

The Court will hear argument in three cases today. Ridgley v. State, an appeal from the summary dismissal of a post-conviction petition, is the only criminal case on the docket.

Ridgley's petition alleged, inter alia, that his attorney did not provide effective assistance of counsel because counsel failed to consider whether Ridgley’s severe grief and depression rendered him incompetent or unable to make a rational decision about pleading guilty. Ridgley's wife had died just 16 days prior to the entry of the guilty plea.

The COA concluded that the district court erred in dismissing this claim as "Ridgley’s evidence is sufficient to raise a genuine issue of fact regarding his emotional state and the competence of the lawyer’s representation of Ridgley in light of the alleged emotional state. Although it might well be said that nearly any criminal defendant will be somewhat depressed at facing the possibility of conviction of a serious crime, there is evidence here from which it could be found that Ridgley’s level of depression was far more consequential than the typical emotional distress at facing prosecution." The COA reversed the dismissal in part and remanded the case for further proceedings on this claim, but the state's petition for review was granted.

The COA opinion can be found here: http://www.isc.idaho.gov/opinions/ridgley.pdf

Pro Se Appellant Drives Off With Victory!

Today a pro se appellant got his speeding conviction reversed due to insufficient evidence.

At trial, "[t]he officer testified that he had been trained in visually estimating the speed of vehicles and had received certification of the ability to make estimates within 5 miles per hour of the actual speed. He said that he had estimated the speed of Estes’ vehicle at 65 miles per hour, 10 miles per hour over the speed limit."

The magistrate found that the officer’s testimony was proof beyond a reasonable doubt that the driver was speeding. The Court of Appeals disagreed, writing:

"Although the officer implied that he met a certification standard requiring that he be able to make estimations falling within 5 miles per hour of the actual speed, he did not testify as to the required accuracy rate. That is, he did not disclose whether certification required that he be able to meet that 5-mile-per-hour variance standard 65 percent of the time or 99 percent of the time, nor what his actual rate was. An accuracy frequency approaching 100 percent would give far greater support to a finding of guilt beyond a reasonable doubt than would a substantially lower accuracy rate. Here, the trial evidence is void of any information at all on the officer’s accuracy rate. In addition, the State produced no evidence of the distance between the officer’s location and Estes’ vehicle when the officer made his estimation, the angle of his view, or how long he observed the vehicle before reaching his conclusion. We do not hold, as some courts apparently have, that an officer’s estimate can never be sufficient to prove a speeding infraction. We hold only that on this evidentiary record, and given that the difference between the estimated speed and the speed limit in this case was not great, the State failed to prove beyond a reasonable doubt that Estes’ vehicle was travelling above the speed limit." (Emphasis added.)

Congratulations to Mr. Estes for his perseverance and for a job well done!

State v. Estes, http://www.isc.idaho.gov/opinions/Estes,%20David.pdf

People Who Do Reprehensible Things are People Too

The Court issued five opinions in civil cases on Friday. Now usually, as regular readers know, SCOIDBlog does not concern itself with civil cases, but there is some language in one of those cases which may help criminal defense lawyers.

In Shelton v. Shelton, Mr. Shelton filed a motion to modify child custody payments. The alleged material change in circumstances was that "he lost his job [earning $16.55 per hour] after pleading guilty to a sex crime, that he was serving one year in jail with work release, and that he was currently employed earning $6.25 per hour." The trial court dismissed the motion pursuant to I.R.C.P 12(b)(6). The Supreme Court dismissed Mr. Shelton's appeal because the Notice of Appeal was filed one day too late. However, it noted that the motion could be refiled in the trial court as it was dismissed without prejudice. The Court then addressed some issues which might arise if such a motion was filed.

The issue of interest here is that the trial court dismissed Mr. Shelton's motion "because he had failed to offer at the hearing admissible testimony supporting his contention that there had been a substantial and material change in circumstances justifying a modification of the child support." However, "[t]here is no requirement that a party defending against a 12(b)(6) motion must offer admissible testimony at the hearing on the motion" and the trial court should not have dismissed on the failure to do so.


Here comes the useful language:

"The first issue is that all litigants, including those such as Father who are incarcerated for reprehensible conduct, are entitled to equality under the law. Not only is a pro se litigant held to the same standards and rules as an attorney, but the pro se litigant is entitled to have the rules of civil procedure applied to him or her in the same manner as they would be applied to an attorney. In this case, the magistrate judge did not do so. He created a unique procedural hurdle that Father tripped over, resulting in the dismissal of his motion." (Citations omitted, emphasis added.)

While it is not pertinent to my practice, I understand that some SCOIDBlog readers have, on occasion, represented people who are accused of/have done reprehensible things. For those readers, this language can be used as a reminder to our trial courts that we are all entitled to the equal protection of the laws.

Shelton v. Shelton, http://www.isc.idaho.gov/opinions/Shelton%20v.%20Shelton.pdf

Rule 33 May Not Be Used to Challenge Jurisdiction of Court After a Conviction Becomes Final

The Supreme Court has affirmed the denial of a Rule 33 Motion to Withdraw Guilty Plea holding the District Court did not have jurisdiction to consider the claim.

Micah Wegner pleaded guilty to a single count of L&L after being waived into adult court. His judgment and sentence was affirmed on direct appeal. He did not file a post-conviction petition. Two and a half years after his direct appeal was final, he filed a pro se "Motion to Withdraw Plea to Correct Manifest Injustice, I.C.R. 33(c)." His argument was that could not have been found guilty of L&L because he was under the age of fourteen at the time of the alleged offense and Idaho Code section 20-509 does not list L&L as one of the offenses for which minor children can be tried as adults.

The Supreme Court relied upon State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711 (2003), where it stated that:

"Absent a statute or rule extending its jurisdiction, the trial court’s jurisdiction to amend or set aside a judgment expires once the judgment becomes final, either by expiration of the time for appeal or affirmance of the judgment on appeal."

The Jakoski Court held that once a judgment of conviction becomes final, "the district court no longer [has] jurisdiction to hear a motion to withdraw [a] guilty plea."

The Court, in rejecting Wegner's argument that there should be an exception to Jakoski for cases where the court did not have adult jurisdiction over a juvenile, explained that:

"Wegner seeks, in essence, to utilize Rule 33 as a means of collaterally attacking a judgment that has become final. We decline to allow such an attack. The appropriate avenue for obtaining relief from a final judgment of conviction is a proceeding brought pursuant to the Uniform Post-Conviction Procedure Act set out in Chapter 49, Title 19, Idaho Code. Wegner may not utilize Rule 33 as a means of circumventing or supplementing this statutory remedy."

State v. Wegner, http://www.isc.idaho.gov/opinions/Wegner%20Opinion.pdf

Lesson learned: Do not sit on your rights. Even though there are many cases which say that a challenge to subject-matter jurisdiction is never waived, in fact, such challenges are waived if not raised on direct appeal, in a Rule 33 motion made before the appeal is over, or in a timely post-conviction application. Possibly such a challenge could be raised in a Rule 35 motion to correct an illegal sentence if the illegality was apparent from the face of the record. See State v. Clements (decided October 15th). In Wegner, however, it was not clear from the face of the record because the charging period included time before and after he turned fourteen and it was not clear when the event he pleaded guilty to occurred.

Shhhhhh

Things are pretty quiet here at SCOIDBlog HQ. There haven't been any opinions issued by the Supreme Court this week.

There was a good search warrant case issued by the COA though. The Court found there was not probable cause to issue a search warrant where there was an insufficient nexus between observed criminal activities, which occurred at Space 23 of the trailer park, and the search of the residence at Space 25. State v. Belden, http://www.isc.idaho.gov/opinions/Belden-opn.pdf. Congratulations to Sarah Tompkins of SAPD!

Finally, if you're in need of CLE credits or just want to learn something, stop by the IACDL Seminar at the Hotel 43 in Boise tomorrow morning. Last minute CLE shoppers should take note that a valuable Ethics credit will be earned by attendance.

More on Bar Resolution 09-2 (Special Responsibilities of a Prosecutor)

An especially alert SCOIDBlog reader notes the SCOTUS has recently suggested that the prosecutor's Brady obligation does not extend into post-conviction. See, District Attorney's Office v. Osborne, 123 S.Ct. 2308, 2319-2320 (2009). This should make us all especially motivated to attend the bar resolution meetings.

In Osborne, the defendant had been convicted and his case was final when he sued state officials under 42 U. S. C. §1983 claiming "that the Due Process Clause and other constitutional provisions gave him a constitutional right to access the DNA evidence for what is known as short-tandem repeat (STR) testing (at his own expense)." The Circuit Court concluded that the State had an obligation under the principles of Brady and ordered that access be given to Osborne. The Supreme Court reversed, finding that there was no "free-standing" constitutional right to access DNA evidence. "Osborne’s right to due process is not parallel to a trial right,but rather must be analyzed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in post conviction relief. Brady is the wrong framework."

Resolution 09-2, however, requires that a prosecutor promptly disclose "new, credible material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted" to the court and to the defendant "if the conviction was obtained in the prosecutor’s jurisdiction" and also to make further efforts "to determine whether the defendant was convicted of an offense that the defendant did not commit."

In addition, the Resolution provides that "when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction."

I'll be at my meeting to cast a vote in favor. These meetings are usually sparsely attended, so just a few votes can determine the outcome. The Bar Road Show is in Coeur d'Alene today (Hampton Inn at noon) and then in Caldwell, Boise, Twin Falls, Pocatello and Idaho Falls next week.

Valley County Public Defender Update

The finalists for the Valley County Public Defender position are: Todd Wilcox, J.D. Hallin, Ken Arment, and Scott Erekson. Now the County Commissioners will hold interviews. It is not yet known whether Valley County is going to make the Public Defender's Office a county agency or continue to contract the work out.

In a refreshing change of pace, only 50% of the candidates are current or former prosecutors and 100% have actually done some criminal defense work.

Ninth Circuit Applies Gant

Here is a link to the Ninth Circuit Blog summary of United States v. Ruckes, which applies Arizona v. Gant: http://www.circuit9.blogspot.com/

To summarize the summary: The police stop a guy for speeding, find out his license is suspended, arrest him and search his car. No brainer, right? Search unconstitutional under Gant. End of story.

But wait, there's more. Before the search, the police ask the driver if there was anyone who could take possession of the car; if not, the car would be impounded under state law. He didn't have anyone to get the car, so the police searched the vehicle as a search incident to arrest and as an inventory search. Naturally, there was crack and a pistol inside. While the Circuit Court found that Gant prohibited the search incident to arrest, it upheld the search under the inevitable discovery doctrine as the inventory search was valid.

Lesson learned: We need to make the state prove up the requirements for an inventory search when they argue inevitable discovery. In many cases they won't be able to do so.

You can always find a link to the Ninth Circuit Blog in "Useful Sites," which is located in the column to the right. You can get to the opinion itself here: http://www.ca9.uscourts.gov/datastore/opinions/2009/11/09/08-30088.pdf

A View of Death Row

A Boise TV station ran a short segment yesterday called "A Day on Death Row." It's largely from the point of view of a Correctional Officer, but it does explain what a typical day is like for death sentenced inmates (locked in a cell 23 hours a day, except when showering or seeing visitors, 1 hour of outdoor time) and shows a typical cell. If you're interested in an example of man's inhumanity to man it's worth watching.

Holding inmates under such close supervision costs a lot of money. In the past few years both New Mexico and New York have gotten rid of the death penalty in part because it's become too expensive. Maybe Idaho will see the fiscally responsible light.

To see the TV report:
http://www.2news.tv/news/local/69632662.html

To read a report from the Death Penalty Information Center about the costs of capital punishment: http://www.deathpenaltyinfo.org/documents/CostsRptFinal.pdf

In Case You Missed It

1. Here's a link to the October 2009 version of Federal Convictions Reversed, a publication from the Federal Public Defenders of the Northern District of New York. FCR contains cases from United States Courts of Appeal and the United States Supreme Court which contain at least one point favorable to criminal defendants. It's a great starting point whenever you get a federal case. http://www.nynd-fpd.org/reversible%20errors/federal%20convictions%20reversed%20%2010.2009.pdf

2. All lawyers need to attend the Bar Resolution meetings and support Resolution 09-2. It amends I.R.P.C. 3.8 ("Special Responsibilities of a Prosecutor") to conform with the ABA Model Rule. In particular, the following language would be added to the current rule:

g) when a prosecutor knows of new, credible material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(A) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(B) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

3. Here's an article about dog lineups. Not lineups of doggie defendants, but lineups of humans who are sniffed by a dog. Turns out the nose does not always know. Has this ever happened in Idaho? http://www.nytimes.com/2009/11/04/us/04scent.html?_r=1&hp

From the Idaho Innocence Project

Here's a letter from the Idaho Innocence Project.

The Idaho Innocence Project has just been awarded a U.S. Department of Justice grant for Wrongful Prosecution Review. The program's mission is to provide high quality and efficient research, screening, and representation for potentially wrongfully convicted defendants in post-conviction claims of innocence. Post-conviction innocence claims are likely to include complex challenges to the reliability or accuracy of evidence presented at trial which mainly fall into three categories:
1) eyewitness identification evidence;
2) confession evidence; and
3) forensic evidence.

The Idaho Innocence Project hopes to work with Idaho attorneys to succeed in this mission. This a two-year grant, and it will provide a full time legal assistant dedicated to this work.

We are asking Idaho attorneys do two things:
1. Direct us to clients that you believe have a valid wrongful conviction claim. We are especially interested in cases where there is a potential for new forensic evidence to be discovered or tested.
2. Contact us if you are willing to assist us in casework.

If you are interested, please contact us.
　
--
Rick Visser, J.D.
Idaho Innocence Project
Boise State University
Boise, ID 83725-1515
208.426.4207

mailto:richardvisser@boisestate.edu

Rick: Sign me up. I'd like to help.

Recent events have shown us that we need to be careful about protecting confidential information when working with non-lawyers. An Innocence Project branch in Illinois recently had its records subpoenaed by prosecutors. Hopefully, it'll be able to quash the subpoenas and protect client communications.

See 10/24/09 NYTimes article "Prosecutors Turn Tables on Student Journalists." http://www.nytimes.com/2009/10/25/us/25innocence.html?ref=education

November Argument Preview

The Court is going to hear argument in three criminal cases in November. The following summaries are taken in large part from the Supreme Court's press releases but have been modified. The full press releases can be found at: http://www.isc.idaho.gov/scterms.htm

November 5, at 10:00 (Twin Falls): State v. Wegner.

This is a case involving a question of adult court jurisdiction over a juvenile and when the lack of jurisdiction may be asserted. A juvenile petition was filed against the appellant, charging him with two counts of lewd conduct with a minor under the age of sixteen. The charging periods included time when the juvenile was 13 and 14 years old. Juvenile jurisdiction was waived and he was charged as an adult. He later entered guilty pleas but never admitted that he was 14 at the time of the offenses. He appealed, but the judgment and sentence was affirmed.

Two and one-half years later, he filed a pro se motion to withdraw guilty plea under I.C.R. 33(c), arguing that the adult court did not have jurisdiction over him because lewd conduct is not one of the offenses for which 13 year olds can be tried as adults. The district court denied the motion believing that that it lacked jurisdiction. On appeal, he argues that the district court had jurisdiction to consider his Rule 33 motion, and that the district court did not have jurisdiction to enter judgment and sentence him as an adult.

November 9 at 11:10 (Boise): Melton v. State.

This is an appeal from an order summarily dismissing a successive petition for post-conviction relief. Appellant was convicted and sentenced for lewd conduct and his sentence was affirmed on direct appeal. He then filed a post-conviction petition which was denied. His appeal was eventually dismissed. Thereafter, appellant filed a successive petition alleging that his post-conviction counsel in the previous proceeding had failed to properly apprise the district court of the claims intended to be asserted and failed to present the necessary evidence to prove those claims. The district court summarily dismissed his successive petition, presumably for being untimely.

On appeal, he argues that the district court erred in summarily dismissing his successive petition because the failure to fully develop the claims in his first post-conviction should be excused due to deficient performance on the part of post-conviction counsel. Further, the district court erred by failing to rule upon his motion for appointment of counsel.

November 12 at 8:50 (Boise): Stuart v. State.

This is an appeal from a district court’s dismissal of a fourth petition for post-conviction relief.

Appellant was convicted in 1982 of murder and was sentenced to death. The conviction was affirmed during the combined post-conviction/direct appeal procedure unique to capital cases. During the trial, direct appeal, and his first petition for post-conviction relief, Stuart was represented by the same attorney. Appellant later filed this successive post-conviction petition which was dismissed by the district court as untimely under I.C. § 19-2719.

Appellant argues that statute is inapplicable as it cannot be applied retroactively to his case for several reasons. Further, since I.C. § 19-2719 does not apply, the district court erred in summarily dismissing his petition.

More Than Citation to Supplemental Authority is Required to Present Argument on Appeal

Yesterday, the Supreme Court affirmed a Violent Sexual Predator designation even though it had previously declared the VSP designation process unconstitutional in Smith v. Sexual Offender Classification Bd., 146 Idaho 822, 203 P.3d 1221 (2009).

Evan Morgan pleaded guilty to lewd and lascivious conduct with a minor and to possession of sexually exploitative material. After Morgan received a tentative parole date, the SOCB designated him as a VSP. Morgan appealed to the district court.

In the district court, Morgan was given access to a summary of the information that the SOCB relied on in making its decision, but he also filed a motion seeking access to the actual documents reviewed by the SOCB. The district court denied Morgan’s request and upheld the designation. Morgan appealed. The Court of Appeals affirmed, but the Supreme Court sua sponte granted review of the decision of the Court of Appeals.

Presumably the sua sponte review order was done in light of the Smith case, which was pending before the Court. About three months after acceptance of review, the Court issued Smith, which held that the SOR Act is constitutionally infirm in part because it denies offenders access to the full record relied upon by the SOCB and instead allows access only to the summary of that information. "Unlike the offender in Smith, however, Morgan did not advance a constitutional claim before the district court." Moreover, "Morgan did not file a brief with this Court following our sua sponte grant of review from the decision of the court of appeals." Instead, he submitted a letter citing Smith as additional authority. This letter, the Court held, did not "cure Morgan’s waiver of constitutional claims."

The Supreme Court then rejected Morgan's non-constitutional argument that he should have received the original documents. It also held that, even though Morgan is confined to a wheelchair, there was still substantial evidence to support the VSP designation.

Morgan v. Sexual Offender Classification Board, http://www.isc.idaho.gov/opinions/Morgan%20v.%20SOCB,%2035913.pdf

Rhoades Redux

Last week, the Court found that a successive petition for post-conviction relief in a capital case was untimely. The petition was based upon the discovery of exculpatory biological evidence relating to the capital murder case. (See 10/19/09, SCOIDBlog "Discovery of Exculpatory Evidence . . . Came Too Late . . .")

A similar petition was filed in the client's non-capital murder case. As the state consistently argued that the same person was responsible for a series of three murders, the exculpatory evidence as to one murder was exculpatory as to the other two. Today, the Court dismissed that petition too.

Before doing so, the Court reaffirmed "the standard expressed in Charboneau [v. State] in order to determine whether equitable tolling is appropriate." In Charboneau, the Court recognized that rigid application of I.C. § 19-4902 would preclude courts from considering "claims which simply are not known to the defendant within the time limit, yet raise important due process issues." Such claims, however, must be filed within a reasonable amount of time. And, the Court, in determining what a reasonable time is for filing a successive petition, "will simply consider it on a case-by-case basis, as has been done in capital cases." Charboneau, 144 Idaho at 905, 174 P.3d at 875.

The Court noted Charboneau was consistent with prior Court of Appeals cases finding equitable tolling where the petition has been denied the due process right of meaningful access to the courts. The COA cases are a bit different, in my view, because they deal with whether the petitioner was prevented from filing the post-conviction due to an impairment of his access to the courts. This analysis does not focus on the type of claim raised. Thus, combining Charboneau with the COA cases, equitable tolling would seem to exist when the petitioner is prevented from raising the claims either due to a lack of meaningful access to the courts or when there is a claim raising an important due process issue which was not and could not have been known earlier.

The Court then found that petitioner's claims (prosecutorial misconduct, actual innocence, ineffective assistance of counsel, and a request for DNA testing) either did not raise important due process issues sufficient to trigger equitable tolling or that the claim had not been adequately supported by the facts and claims in the pleadings.

The Court did not decide the question of whether there is a free-standing post-conviction claim for actual innocence. It wrote: "We need not and do not decide today whether due process requires a free-standing actual innocence exception to the application of I.C. § 19-4902."

Finally, and perhaps most importantly for day-to-day post-conviction practice, the Court made clear that attorneys fees and costs could be awarded in post-conviction cases on appeal. "Idaho Appellate Rule 40 provides that '[c]osts shall be allowed as a matter of course to the prevailing party unless otherwise provided by law or order of the Court.' " Noting that a petition for post-conviction relief is a civil matter, the Court awarded costs to the state, but declined to award attorneys fees as "the standard for equitable tolling has never been clearly spelled out and its application to many of the issues raised by Rhoades is a matter of first impression for this Court."

Rhoades v. Fisher, http://www.isc.idaho.gov/opinions/Rhoades%20v.%20State,%2035021.pdf

Alert: Two New Rules Affecting Parental Termination Appeals

Debi Presher, the Executive Director of IACDL, received the following e-mail regarding changes to the Idaho Appellate Rules in Parental Termination cases. I added the emphasis in the text:


Dear Ms. Presher,

On July 1, 2009, the Idaho Supreme Court amended the appellate rules and added two new rules addressing appeals in cases involving the termination of parental rights or an adoption. I.A.R. 11.1 provides that an appeal in these cases must go to the Supreme Court rather than the district court. The rule further provides that all time frames for these appeals, including the notice of appeal, shall proceed in an expedited manner pursuant to another new rule, I.A.R. 12.2. The result is that the notice of appeal in these cases must be filed within 14 days of the magistrate decision. A notice of cross-appeal must be filed within seven days from the notice of appeal. There have already been several appeals that have been dismissed as untimely for failure to follow this jurisdictional time limit.


I am planning to send out a reminder email to public defenders, who handle the majority of termination cases, but know that I may not reach all of them. I am hoping that as Executive Director of the Idaho Association of Criminal Defense Lawyers you might be able to send this message out to your membership as a reminder as well.

Your help is much appreciated.

Cathy Derden
Staff Attorney
Idaho Supreme Court

Valley Co. Public Defender Update

The Fourth District Administrative Judge has set up a committee to screen the public defender applications. Rob Chastain (criminal defense attorney and, until recently, the Boise Co. Public Defender), Jay Rosenthal (former Ada Co. Prosecuting Attorney and Deputy Attorney General), and Alan Trimming (the venerable Ada Co. Public Defender) are the committee members.

There have also been some interesting additions to the applicants including Mark Mimura of Mimura Law Offices. You may remember that MLO took over the Canyon Co. PD contract and is also the Gem Co. Public Defender. Perhaps Mark is looking to fulfill the long-time goal of having a state public defender system by increasing his firm one county at a time. (Mark: If you get Valley, grab Owyhee and Idaho Counties and your empire will run without interruption from Montana to Nevada!)

MLO has also been in the local news recently, as Randy Groves, the Kuna City Attorney, announced he was resigning to join Team Mimura. Randy used to be a Boise City Attorney.

http://www.idahostatesman.com/localnews/v-print/story/941854.html

Curiously, MLO personnel is chock-full-of-former-prosecutors, some of whom actually worked for the Canyon County Prosecutor's Office. At the same time, many fine criminal defense lawyers from Wiebe & Fouser were not hired by MLO. Now, I know that the criminal defense bar has many members who once, in their misguided youth, perhaps, were prosecuting attorneys. I also know that Sun Tzu advises us to "know your enemy." But "be your enemy" is a new one on me.

Death Penalty Information Center Releases New Study on Cost of Death Penalty

The Death Penalty Information Center has released a study titled "Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis." According to the DPIC, "the report combines an analysis of the costs of the death penalty with a newly released national poll of police chiefs who put capital punishment at the bottom of their law enforcement priorities." The text of the study can be found at http://www.deathpenaltyinfo.org/. If you are short on time and looking for a brief summary, you can find one at: http://www.cnn.com/2009/CRIME/10/20/death.penalty/index.html.

Discovery of Exculpatory Evidence by Federal Habeas Counsel Came Too Late to File Successive State Post-Conviction in Capital Case

The Court held today that a successive state post-conviction filed in a capital case by federal habeas counsel after their expert alerted them to exculpatory biological evidence was too late. "A defendant filing a successive petition must show the existence of an issue that he could not reasonably have known of and support the petition with new material facts. I.C. § 19-2719(5)."

The court first found that trial counsel, who had expert assistance, should have realized the importance of the evidence prior to trial. Second, it found the biological evidence was not conclusive evidence of actual innocence and the test results were not material.

Accordingly, the Court dismissed the appeal. Rhoades v. State, http://www.isc.idaho.gov/opinions/Rhoades..pdf

An Illegal Sentence Must be Illegal on its Face In Order to Get Rule 35 Relief

Michael Clements filed an I.C.R. 35 motion to correct an illegal sentence. He argued that the two weapon enhancements imposed were illegal because both shootings arose from the same indivisible course of conduct under I.C. § 19-2520E. The district court agreed and resentenced him. The State appealed and today the Supreme Court reversed, finding that "the district court lacked authority under Rule 35 to examine the underlying facts of Clements's case."

The Court held that "the interpretation of 'illegal sentence' under Rule 35 is limited to sentences that are illegal from the face of the record, i.e., those sentences that do not involve significant questions of fact nor an evidentiary hearing to determine their illegality."

State v. Clements, http://www.isc.idaho.gov/opinions/clements%20final%20opn.pdf

Mr. Clements pleaded guilty to second-degree murder with a firearm enhancement for the death of Mary Ellen Johnson and attempted second-degree murder with a firearm enhancement for the shooting of Lori Anne Oakes. Perhaps the result here would have been different had he gone to trial and there was a record which clearly established the shootings arose from the same indivisible course of conduct. In that case there would not be significant questions of fact and no evidentiary hearing would be required.

Important Post-Estrada Case

The COA issued its opinion in Hughes v. State today. It's 31 pages long and will take some time to digest. Here's a link for those who want to start chewing on it. http://www.isc.idaho.gov/opinions/hughes%20opinion.pdf.

In short the Court rejects or avoids numerous claims of ineffective assistance of counsel. In particular, the petitioner alleged IAC for: 1) failing to be present during the Psychosexual Evaluation; 2) failing to move to suppress the PSE because the polygraph results, which were incorporated therein, were obtained in violation of the Fifth Amendment right to counsel; 3) failing to ensure that he received Miranda warnings prior to his participation in the PSI; 4) failing to obtain an independent, confidential PSE evaluation prior to sentencing; 5)failing to move to suppress the results of the polygraph test; and 6) failing to advise Hughes regarding his rights relative to the PSE.

The court rejects #1-3 and 5. It does not reach the issue in #4 because the trial counsel asked for an independent evaluation and the trial court's refusal to authorize one should have been raised on direct appeal.

As to #6, the Court sets out a new test on how to analyze whether the petitioner was prejudiced in an Estrada IAC claim. The COA writes:

"We turn to the question of how the Strickland prejudice prong should be applied with regard to the unique circumstances of a PSE. We conclude that there are three essential factors which make up the prejudice determination in this context. The first factor is whether the content of the PSE itself is materially unfavorable. The PSE should be reviewed to determine the extent and harmful character of statements and admissions made by the applicant and the conclusions of the evaluator based upon those statements and admissions to determine the level of negativity, if any. If the PSE is not materially unfavorable, then the second prong of the Strickland standard has not been met. If the PSE is materially unfavorable to the applicant, the level of its negativity will then be weighed with two additional factors. The second factor is the extent of the sentencing court‟s reliance on the PSE if it can be demonstrated from the record. The third factor is the totality of the evidence before the sentencing court." (Emphasis added.)

The Court applied these factors and concludes there was no prejudice in Hughes's case.

There will be "Further Thoughts" on this case in a day or two.

DeLorean, We Hardly Knew Ye

The Associated Press reports that a Portland man was sentenced to two years of probation, a psychological examination and community service for battering his ex-girlfriend and impaling her pet fish.

Here's the sad part: According to court records, the human victim, Harris, had broken up with the defendant, Fite, but Fite returned to Harris's apartment saying he wanted to get back together. When Harris tried to leave, Fite shoved her against a wall, grabbed her hair and tossed her against a bathtub.

Here's the creepy part: "When she later returned to the apartment she found her fish - a bright purple beta named 'DeLorean' - on the wood floor with a knife through it."

Here's the confusing part: Fite confessed to killing DeLorean saying, "If she can't have me, then she can't have the fish."

Here's the funny part: "Prosecutor Eric Zimmerman told Judge Eric Bergstrom that Harris plans to get a memorial tattoo of the fish and wanted Fite to pay for it."

Here's the denouement: The judge declined to make Fite pay for the tattoo. He did order Fite to stay away from Harris, but said he could have contact with fish.

Real instances of domestic violence are not funny, but the prosecutor's argument about the memorial tattoo is hilarious. But why stop there? How about making Fite pay for an eternal flame to be placed at the Oregon Coast Aquarium in DeLorean's memory? Or maybe we should make him organize an annual 5K fun run to raise awareness of violence against aquatic creatures? That'd serve him right after making that crazy confession.

Admission of Preliminary Hearing Transcript at Trial Did Not Violate the Confrontation Clause

Mantz was charged with aggravated assault by intentionally firing a handgun near the head of Karl Hoidal and by verbally threatening him. "Hoidal testified at the preliminary hearing; however, prior to trial Hoidal died in an unrelated accident." The trial court permitted the audio recording of Hoidal's testimony be played to the jury at trial over a confrontation clause objection. Mantz was found guilty by the jury and appealed.


The COA affirmed the conviction finding no confrontation clause violation, holding that "preliminary hearing testimony is admissible as long as the defendant had an adequate opportunity to cross-examine which is determined on a case-by-case basis."

The COA then found that the opportunity to cross-examination was adequate noting that
"[d]efense counsel questioned Hoidal as to the accuracy of his story, underage drinking, desire for an adventure, ability to recall the events of the evening due to alcohol consumption, and motive due to the pressure he was under from his parents and the DUI." Further, "Mantz had approximately two months in which to prepare for his cross-examination of Hoidal. Thus, Mantz was represented by counsel who engaged Hoidal in full and effective cross-examination as to his truthfulness, bias, memory, and motive."

Further, the COA found that Mantz was not significantly limited in his cross-examination. In particular, defense counsel was allowed unrestricted time to cross-examine. And there was no proffer at the trial of "any new and significantly material line of cross-examination that would have been developed at trial that was not touched upon in the prior cross-examination."

State v. Mantz, http://www.isc.idaho.gov/opinions/mantz%20opinion.pdf

This is another example of why it is important to make a record below. Since the COA adopted a case-by-case approach, the particular facts which make the opportunity to cross-examine inadequate in your case must be established. So, be sure to complain about everything which restricts your cross-examination at the prelim and when the magistrate gives you the evil eye tell her that Mantz is making you do it.

In another aggravated assault case involving a pistol, the COA found the court correctly instructed the jury that the state had to prove the defendant 1) fired the pistol, 2) with the specific intent to threaten the victims. It was incorrect, however, to also give a definition of general intent which the jury could have read as saying that it need only find an intent to fire the pistol. No need to reverse the conviction though as the error was harmless.

State v. Hansen, http://www.isc.idaho.gov/opinions/hansen%20opinion.pdf

Ada County Prosecutor Reveals Brady Material

Remember how I was complaining (ok - whining) about "How Come Prosecutors Don't Get Brady?" (SCOIDBlog April 28, 2009) Well, to my surprise and delight there was some Brady/Giglio material in this morning's mail courtesy of the Ada County Prosecuting Attorney.

"It has come to our attention that Detective Mike Babbit has separated from employment with the Garden City Police Department. An internal investigation revealed that Detective Babbit made false statements in a police report during a pending investigation. That investigation was not submitted to the prosecutor's office for review. Detective Babbit indicated in that police report that he had followed up on certain investigative leads in that case when in fact he had not pursued those leads. He then closed out that case as inactive. That case has been reassigned to another detective."

In July, the prosecutors sent out this disclosure.

"It has come to our attention that Officer Tony White has separated from employment from the Boise Police Department. The Boise Police Department has issued sustained departmental policy violations against Tony White for non-conformance to laws and conduct unbecoming an officer. The sustained violations are based upon an internal investigation, which disclosed sufficient evidence to conclude that Officer White failed to register his vehicle in Idaho as required by law, failed to timely pay sales tax on the vehicle, and attempted to protect the asset from seizure during an IRS audit. During the proceeding regarding the internal investigation, Officer White gave inconsistent statements."

All those other defendants who have Mr. Babbit or Mr. White involved in their cases should receive a similar disclosure. Also, those who don't practice in Ada Co., please be on the lookout for new hires at your local police department as these two may be looking for a new situation.

Kudos to the prosecutors who followed the Constitution in these cases.

No New Criminal Law Opinions Today, So Here's a Nice Poem

Fire and Ice

by Robert Frost

Some say the world will end in fire,

Some say in ice.

From what I've tasted of desire

I hold with those who favor fire.
But if it had to perish twice,

I think I know enough of hate

To know that for destruction ice
Is also great and would suffice.

Time to Abandon Public Defender Reimbursements?

Here's an excerpted abstract of an article published in the Fall 2009 University of Michigan Journal of Law Reform. (My wife and I went to law school with the author and we all practiced law together for several years.) This will be a great resource for anyone who is thinking about challenging public defender reinbursements.


Penalizing Poverty: Making Criminal Defandants Pay For Their Court-Appointed Counsel Through Recoupment and Contribution
Helen A. Anderson

"Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, defendants are ordered to repay the cost of their attorney regardless of their ability to pay and without any notice or opportunity to be heard. Many are ordered to pay as a condition of probation or parole, which means they pay under threat of incarceration. In these jurisdictions, recoupment violates the Sixth Amendment, as well as the Due Process and Equal Protection Clauses. . . . In addition, the thirty years since Fuller have verified that recoupment is bad policy because it imposes punishing debt without real fiscal benefit. It is time to abandon practices that penalize defendants for being poor and exercising their right to counsel."

Congratulations Professor Anderson on being awarded tenure!

State Breaches Plea Agreement by Opposing Rule 35 Motion When it Agreed to be Bound to Sentencing Recommendation

The Court issued an opinion today in a Harboring a Fugitive case where the plea agreement provided, in part, that:

"The State and Defendant agree to be bound to following sentencing agreement:
-- that Defendant be granted a Withheld Judgment;
-- that no jail time be imposed;
-- that Defendant be placed on probation for a term at the court's discretion."

At sentencing, the state was good to its word. However, some police officers who were injured by the fugitive the defendant was harboring (defendant's husband who was killed by the police), made victim impact statements and told the judge that the defendant should go to prison. The judge agreed and sentenced the defendant to five years with three fixed. The defendant then filed a Rule 35 motion which the state argued against. The motion was denied.

On appeal, the Supreme Court held: 1) the charging document was adequate to confer jurisdiction on the court; 2) the court did not abuse its discretion in finding the officers were victims; 3) the police officers were not bound by the prosecutor's sentencing recommendation because their statements were made as victims and not as state agents, but that 4) the prosecutor breached the plea agreement by opposing the Rule 35 motion.

"The somewhat unusual language of the plea agreement, '[t]he State and Defendant agree to be bound to following sentencing agreement,' dictates our conclusion that the agreement was breached. The significance of this language is that the State was not simply bound to the agreed-upon recommendation at [defendant's] sentencing, but the broad language represents an unqualified commitment by the State to adhere to the sentencing recommendation at every stage of the proceedings. Consequently, the State was bound to the recommendation in the plea agreement at the Rule 35 hearing."

Read the opinion at: http://www.isc.idaho.gov/opinions/Lampien%20Opinion.pdf

A Private Postage-Meter Mark is Not a Postmark

As SCOIDBlog looks at things from a "criminal defense point of view," we don't get too worked up about civil cases. That's true even when the appellants are Hollywood stars, like yesterday's opinion involving Tom Hanks, Rita Wilson (the stars) and a Sun Valley construction company (not a star). (Spoiler alert: They can all go to arbitration now.) But today there is an interesting issue in a civil case which might have an effect on criminal law practitioners who dabble in other areas. Smith v. Idaho Department of Labor, http://www.isc.idaho.gov/opinions/Smith%20v.pdf

The Department of Labor found that Boise attorney and local legend V.K. Smith, Jr. "willfully failed to file a fourth quarter 2007 Idaho Employer's Quarterly Insurance Tax Report." On the last day to file a notice of appeal, V.K. "sent a notice of appeal by mail and by facsimile. Smith sent the facsimile at 5:22 on May 15, 2008, and the Commission received Smith's appeal by mail on May 28, 2008. The envelope arrived with a private-postage-meter stamp dated May 15, 2008, but also bore a U.S. Postal Service (USPS) backstamp from Watson, Pennsylvania, dated May 20, 2008." The Commission held the appeal was not timely and V.K. appealed.

The Supreme Court affirmed the dismissal. In reviewing cases, the Court wrote: "Read together, these cases require that, in the absence of a USPS postmark, an applicant must provide evidence from the USPS to verify that the mailpiece was sent on a particular day. The USPS routinely postmarks stamped mail but does not ordinarily postmark metered mail. Thus, to ensure that a mailed notice is timely filed, parties should always either use an ordinary postage stamp to ensure that the mailpiece is postmarked or specifically request a postmark on metered mail to verify when the USPS took custody." (Emphasis added.)

Two thoughts immediately come to mind. First, there is no rule requiring you to file your notice of appeal on the last day. Second, this USPS postmark rule doesn't apply to notices of appeal which require the physical filing in the clerk's office, e.g., notices in criminal cases. (The Industrial Commission has a rule that "filing" occurs when the appeal is mailed.)

Mandatory Minimum Amount of Sentencing Sanity Required Notwithstanding Mandatory Minimum Sentence (if You're in Oregon)

Here are the facts: "Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute. Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times. When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand."

Now: Guess the sentence under the Oregon Mandatory Minimum Sentencing Law. (Probation with 50 hours of community service? No? More?) "First-degree sexual abuse carries a mandatory sentence of six years and three months (75 months) in prison, under Ballot Measure 11 (1994). In each of these cases, however, the trial judge determined that the mandatory sentence was not 'proportioned to the offense' committed by the defendant and therefore was unconstitutional under Article I, section 16. The trial courts imposed shorter sentences -- 16 months in the case of Rodriguez and 17 months in the case of Buck."

The state had the nerve to appeal these sentences, but luckily the Oregon Supreme Court affirmed the trial courts. But, 16 months for a woman in her 20s who had a 13 year old put his head against her clothed breasts? I concede that it's a lot closer to justice than 75 months, but I always thought Oregon was a liberal state, not a fundamentalist theocracy.

Read the Oregon Supreme Court opinion here: http://www.publications.ojd.state.or.us/S055720.htm

All Flew East

No new opinions from the Court for a couple of weeks now*, but that doesn't mean it's not hard at work. The Court heard four criminal law cases earlier this month (see "September Argument Preview" from 9/4), and are now on the road to Pocatello and St. Anthony to hear some civil appeals.

Long ago, the Justices went on the road in a big white state van, driven by the Clerk of Court and crammed full of files. It may still be like that. But wouldn't it be great if the Court traveled together in a psychedelically painted bus, with someone like Ken Kesey (but alive) driving, dispensing justice along with songs and poems about love and freedom? You know, like the Warren Court. (They don't write opinions like those anymore.)

* There was an amended opinion issued this morning in a Medicaid reimbursement case, but the result did not change.

IACDL Seminar in Pocatello this Friday

The Idaho Association of Criminal Defense Lawyers is sponsoring a CLE this Friday, from 7:30 - 12:45 at the Pocatello Ameritel Inn.

The speakers will be Representative James Ruchti and lobbyist Paul Steed on the "Past and Future of Sex Offender Laws and Adam Walsh Legislation." Robert LaPier will inform you on "Standardized Field Sobriety Tests" and "Breath Test Procedures," and Keith Zollinger will talk about "DUI Blood Draw Cases and the Nuts and Bolts of a DUI Practice."

Plus, afterwards there's lunch at the Sandpiper hosted by Kumm Law and the IACDL!

Contact Debi Presher at dpresher@nbmlaw.com for registration information.

Valley County Public Defender

I noticed on the Bar Association website that the Valley County Commissioners are looking for bids for the public defender contract.

According to Prosecutor Matt Williams, Valley County is contemplating either bringing the public defender in house as a county employee, or appointing a person to be the public defender and negotiating a rate of pay for the services to be provided. The Board of County Commissioners will then interview the 3-5 names sent to them by a screening committee. The County is also considering appointing a conflict public defender.

The list of candidates, to my knowledge, is:

Merideth Arnold (McCall lawyer);
Todd Wilcox (current PD);
J.D. Hallin (SCOIDBlog's own);
Alex Briggs (from former Canyon Co. PDs);
Wes Wilhite (Caldwell lawyer);
Michael Robinson (see below);
Jared Martens (Boise lawyer);
Kenneth Arment (Valley Co. Deputy Prosecutor and fellow Mt. Rainier H.S. [Des Moines, WA] graduate. Go Rams!)

I also noted in the Bar's website that McCall attorney Michael Robinson, whose bar status is listed as "Disability Inactive," is looking for an associate "with at least two years' criminal defense experience, including felonies" to start at 30 hours per week, $30,000 per year, no medical benefits.

Well, that sounds like a pretty good job. Except, I don't know that you could do the PD contract in 30 hours a week. But, if you were able to, you could spend the extra time skiing, provided someone gave you a lift ticket and you were careful to not have an accident.

This is the Way an Era Ends?

Not with a bang but a whimper.

"Canyon County Commissioners and the law firm of Wiebe and Fouser have agreed in principle to a resolution of Wiebe and Fouser's lawsuit against the county and the state, officials said Tuesday.

. . . .

In a prepared statement, commissioners said that under the agreement, Wiebe and Fouser will drop their lawsuit and each side will pay its own attorney fees and court costs. The agreement will need to be signed by the judge assigned to the case.

'We are pleased with this outcome, and we appreciate the years of service Klaus Wiebe and Scott Fouser have given to Canyon County as our public defenders,' Commission Chairman David Ferdinand said in the statement."

Idaho Press Tribune, "Firm settles county lawsuit," http://www.idahopress.com/news/?2009-09-16-Firm-settles-county-lawsuit

Action Alert: Petition for Review to Be Filed in Kriebel

Richard Kriebel, of the Court of Appeals case holding that Estrada does not announce a new rule and is not retroactive, will seek review in the Idaho Supreme Court.

Mr. Kriebel argued that Estrada did announce a new rule as applied to him because at the time of his JOC there was a Court of Appeals case (State v. Curless) that held a psychosexual evaluation was not a critical stage in the proceedings (opposite of what Estrada held).

In my opinion, we need to keep pressing this issue until we get a definitive answer from the Idaho Supreme Court. (Vavold only indicates it is not a new rule by way of dicta.)

Lawyer-Bloggers in Trouble with Bar

Here's a New York Times article about lawyers who are getting into trouble with the Bar because of what they're posting on their blogs, tweeting or putting on their Facebook pages. "A Legal Battle: Online Attitude vs. Rules of the Bar." http://www.nytimes.com/2009/09/13/us/13lawyers.html?hp

These sanctioned lawyers, it seems to me, just violated some common-sense rules. It should be obvious that you do not ask a judge for a trial continuance so you can attend a funeral, and then brag about your alcohol consumption on your Facebook page while neglecting to express any grief about your loss. The judge might be reading and then might not look at your next motion with favor. Plus, she might rat you out to your boss. (And why did that lawyer let the judge be a Facebook friend anyway?)

Also, don't reveal attorney-client confidences in your blog or anywhere else.

A final tip: Do not identify a judge by name and then call her an "Unfair, Evil, Witch" on your blog, even if she sets your trial one week from arraignment in order to force your client into waiving his right to a speedy trial. The proper phrase is "Distinguished Jurist of Breathtaking Brilliance," and if you ever read those words here you'll know exactly what I mean.

New DJs Named

Susan Wiebe and Robert Naftz have been appointed as District Judges. Wiebe succeeds Stephen Drescher in the Third District and Naftz succeeds Peter McDermott (see 4/21/09 SCOIDBlog "Judge McDermott Tapes Mentally Ill Defendant's Mouth Shut?") in the Sixth.

Wiebe is the daughter of Criminal Defense demi-god Klaus Wiebe and a fine lawyer in her own right.

Naftz is rumored to have practiced a bit of criminal defense in the day, although you won't see that mentioned by the Governor's Press Office. In fact, Naftz won the case which held that mandatory minimum sentencing statutes violated the state constitution. State v. Sarabia, 125 Idaho 815, 875 P.2d 227 (1994) superseded by statute as stated in State v. Puetz, 129 Idaho 842, 934 P.2d 15 (1997). (Oh yes, I remember that brief shining moment of sanity in sentencing law. It seems so long ago now.)

Congratulations to both.

The Governor's press release is here: http://gov.idaho.gov/mediacenter/press/pr2009/prsep09/pr_061.html

Judge Bradbury Not In Compliance With Residency Requirement

The Court, in a 3-1 decision, with Chief Justice Eismann having recused himself, has found that District Judge Bradbury is not in compliance with the requirement that a district judge "actually reside" in the county where his/her resident chambers is located.

Judge Bradbury has a house in Grangeville, which is in the county where he has his resident chambers. He also has a house in Lewiston, where he spends most of his non-working time. The Court held that the words "actually reside" were not ambiguous and mean that the Judge "must maintain his primary residence in Idaho County, that he must be an inhabitant of Idaho County, and that he must really live in Idaho County." It concluded that "The evidence in the record indicates that he has not been actually residing in Idaho County for some time and this must change."

The Court gave Judge Bradbury 21 days to establish his primary residence in Idaho County and to submit an affidavit stating that he is actually residing in Idaho County and will continue to do so for as long as he is required by law.

Bradbury v. Idaho Judicial Council,
http://www.isc.idaho.gov/opinions/Bradbury%20opn.pdf

Questionable Name for Law Firm

COA: Estrada not Retroactive

Today, the Court of Appeals followed the dicta in Vavold v. State that Estrada is not retroactively applicable. Kriebel v. State, http://www.isc.idaho.gov/opinions/Kriebel,%20Richard.pdf.


The COA does not discuss the effect of Curless on retroactivity analysis (See: "Further Thoughts: Estrada Retroactivity," August 25 SCOIDBlog). Nor does it discuss how Kriebel should have known he had an Estrada claim prior to Estrada being issued, as Curless said he did not have a Sixth Amendment right to the assistance of counsel at a presentence interview.

Instead the Court applies the retroactivity test from Teague v. Lane. This analysis is incorrect because Teague is the rule used in federal habeas corpus petitions to determine whether a new rule from the United States Supreme Court applies retroactively to state court convictions. That is not the Idaho retroactivity rule, which is set forth in State v. Whitman, 96 Idaho 489, 491, 531 P.2d 579, 581 (1975). The Court said in Whitman that:

"The prospective or retrospective application of a decision is a discretionary determination of judicial policy made by the Court after balancing certain criteria. The Court must weigh:
(1) The purpose of the new rule;
(2) Reliance on the prior decisions of this Court; and
(3) The effect of the new rule on the administration of justice."

This issue of whether Whitman or Teague applies in state post-conviction petitions is currently pending before the Supreme Court in Gene Stuart, et al., v. State, which was argued on August 24.

September Argument Preview

The Court is going to hear argument in four criminal cases this month.

September 17: State v. Vance Watkins. The trial court admitted testimony by an expert witness regarding the handling and testing of DNA evidence. The expert admitted that "she didn't have any personal knowledge of how this testing was performed." On appeal, Mr. Watkins argued that the evidence violated his right to confront witness and also that it was inadmissible hearsay.

The Court of Appeals agreed with the hearsay issue and vacated the judgment of conviction. One of the issues on review is whether the COA erred by considering the hearsay issue since it was not raised until the reply brief even though both sides had the opportunity to present supplemental briefing.

State v. Christopher Flegel presents a double jeopardy issue. At his first trial, the jury acquitted Mr. Flegel of L&L and hung on Count II, sex abuse of a minor. At the second trial the court's instructions permitted the jury to find Mr. Flegel guilty based upon the same evidence he was acquitted of in the first trial. The COA found the error was not harmless and vacated the conviction. The Supreme Court accepted the state's petition for review.

Morgan v. Sexual Offender Classification Board is an appeal from a Violent Sexual Predator classification. Mr. Morgan argues that the Classification Board should have produced requested documents to him so he could use them during his appeal to the district court of the Board's VSP designation. He also challenges the classification itself as he is wheelchair bound.

September 18: Paul Rhoades v. State is a non-capital post-conviction case. Mr. Rhoades filed a post-conviction petition alleging prosecutorial misconduct among other causes of action. The issue on appeal is whether the district erred by dismissing the petition as being untimely.