Friday, February 27, 2009

National Public Radio on NAS Forensics Report

Here's a link to where you can listen to a report on NAS's forensic science report. Look under Friday's stories.
It's about 4 1/2 minutes long and gives a general overview.

Poetry Corner: The Circuit Judge

by Edgar Lee Masters

Take note, passers-by, of the sharp erosions
Eaten in my head-stone by the wind and rain —
Almost as if an intangible Nemesis or hatred
Were marking scores against me,
But to destroy, and not preserve, my memory.
I in life was the Circuit Judge, a maker of notches,
Deciding cases on the points the lawyers scored,
Not on the right of the matter.
O wind and rain, leave my head-stone alone!
For worse than the anger of the wronged,
The curses of the poor,
Was to lie speechless, yet with vision clear,
Seeing that even Hod Putt, the murderer,
Hanged by my sentence,
Was innocent in soul compared with me.

Thursday, February 26, 2009

Anti-Expungement Bill Fails in State House

H0071 failed on a vote of 33(aye) -34 (nay) -3 (absent) today. The Bill would have amended I.C. 19-2604 to add: "Any action taken by a court pursuant to this section shall not result in the expungement of the defendant's criminal record, as defined in section 67-3001(4), Idaho Code."

As previously noted, the Bill's Statement of Purpose claimed that it was intended to "clarify that Idaho Code 19-2604 is not an 'expungement' statute." The SOP further stated that"[n]otwithstanding the plain language of [the statute], the Idaho State Police have received orders purporting to expunge information, which is not authorized by statute."
I take this to mean that if we can get expungement orders from the Court, the ISP will have to comply. Hooray! To paraphrase Brian Elkins: Maybe 19-2604 is an expungement statute after all. I think we can use this to support an argument that the Legislature intends for 19-2604 to provide for full expungement or, at least, does not prohibit the Court from doing so.

Wednesday, February 25, 2009

Important Update to Hayes Blog

In the article below, I say that a plea to Disturbing the Peace would be a way to avoid a future 922(g)(9) issue. Andy Parnes points out, correctly, that I.C. 18-6409 includes threatening, challenging to fight or fighting, and the firing of any gun or pistol. Various municipal codes may contain similar language. We need to avoid those types of allegations in the charging document. Stick with "loud or unusual noise."

Tuesday, February 24, 2009

Pleading a DV to a Simple Battery May Not Preserve Client's Gun Rights

In an opinion written by Justice Ginsburg, the U.S. Supreme Court held this morning that a person may be prosecuted under 18 USC 922(g)(9), which bans possession of a weapon for someone convicted of a misdemeanor crime of domestic violence, even if the predicate offense does not have a domestic relationship as an element of the offense. "We hold that the domestic relations, although it must be established beyond a reasonable doubt in a section 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense."

Hayes had a conviction in West Virginia for battery. However, the indictment alleged that the victim "shared a child in common with" and "was cohabitating with" Hayes. After he was charged in federal court, he moved to dismiss the indictment. Then, when that motion was denied, he entered a conditional plea of guilty.

The Court holds that a "misdemeanor crime of domestic violence . . . must have, as an element, the use or attempted use of physical force or the threatened use of deadly weapon." The statute, however, does not require that the crime have a domestic relationship as an element.
"To obtain a conviction in a section 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant's current or former spouse or was related to the defendant in another specified way, But that relationship, while it must be established, need not be denominated an element of the predicate offense."

So, it appears a plea to Disturbing the Peace, for example, may be OK so long as there is no element of physical force or use of a deadly weapon. A plea to Simple Battery is not OK and does not preserve your client's right to possess firearms if the Government can prove the domestic relationship at the 922(g)(9) trial.

Monday, February 23, 2009

Cert Alert: IAC for failing to advise client of immigration consequences?

And you thought I was kidding.

Today, the U.S. Supreme Court granted cert in a case that can change life as you know it. In Padilla v. Commonwealth of Kentucky, the court will consider defense counsel's duty to inform their non-citizen clients about the immigration consequences of a plea.

The issues presented, as framed by the criminal and immigration law professors acting as amici curie are:

Does the 6th Amendment's guarantee of effective assistance of counsel require a criminal defense attorney to advise a client who is not a citizen that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation?

If a criminal defense attorney misadvises his non-citizen client that a guilty plea will not lead to deportation, and that misadvice induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

Hold on to your seats friends. If the Supremes say "yes" to either question, I think we are on our way to a breakdown of the civil-criminal divide that has kept non-citizens from getting free defense in deportation proceedings all this time.

Friday, February 20, 2009

Free Stuff

Here's a 41-page executive summary of the Strengthening Forensic Science book available for free downloading at

Thanks to Oliver Loewy for the link.

Homeless Sex Offender Hitchhiking Act of 2009?

House Bill 168 proposes to require homeless sex offenders "to report, in person, once every seven (7) days to the sheriff of the county in which he resides" so he can provide "a detailed description of the location where he is residing." And the Sheriff has to go out at least once a month to check it out.

So the guy living under the bridge in Powell has to stick his thumb out so he can make the 130 mile one-way trip to Grangeville every week to let the sheriff know he's still there? That'll sure increase public safety. (At least the Sheriff can give him a ride back once a month.) Good thinking Representative Jim Clark (R-Hayden Lake)!

Wednesday, February 18, 2009

NAS Report Out!

The National Academy of Sciences has issued a report finding "serious deficiencies in the nation's forensic science system and calls for major reforms and new research." Here is the link to the NAS website where the report can be downloaded.

Driver to Pay for Forced Blood Draw?

Care to pay for the pleasure of a police ordered blood draw? Too bad. You may have to anyway under the guise of "restitution" to the state.
Senate Bill 1106 amends section 18-8802(6)(d) and 18-8003 to provide that "[u]pon a conviction for a felony or misdemeanor violation under this chapter, except pursuant to sections 18-8001 [DWP] and 18-8007 [Leaving the Scene of an Accident Resulting in Injury or Death] . . . , or vehicular manslaughter . . . . the court may order restitution for the reasonable costs incurred by law enforcement agencies to withdraw blood samples, perform laboratory analysis, transport and preserve evidence, preserve evidentiary test results, and for testimony relating to analysis in judicial proceedings, including travel costs associated with the testimony."

A "conviction" includes a withheld judgment.

The part about paying for testimony sounds like a violation of the compulsory process clause to me. At least it's discretionary with the court.

Friday, February 13, 2009

Firing Squad too Tough for Idaho?

In another blow to Idaho's manly pride, the AG has proposed eliminating the firing squad. Deputy AG Bill von Tagen meekly explains that "Idaho is one of only two states that still have the firing squad as a method of execution[.]" Right Bill. So now we're crowning Oklahoma as the state with the toughest inmates? As if! Those covered-wagon drivin', sod-bustin', dusty sons of a Tom Joad got nothing on our guys. DON'T YOU REMEMBER THE FIESTA BOWL?!

Or maybe the deputy attorney general is afraid we can't shoot straight? I dare him to say it.

Thursday, February 12, 2009

Legislature Watch: Removal from Sex Offender Registry

The AG has proposed amending IC 18-8310, the statute which establishes the requirements and procedure for removing someone from the sex offender registry. There are three main changes.

First, it would require service of the petition for removal on the central registry and gives it standing to appear and participate in the proceedings.

Second, it requires the court to make written findings and conclusions.

Third, it requires the court to state that it has "reviewed the petitioner's criminal history and has determined that petitioner is not a recidivist, has not been convicted of an aggravated offense or has not been designated as a violent sexual predator" in addition to the current requirement that the court find the petitioner "is not a risk to commit a new violation for any violent crime or crime identified in section 18-8304, Idaho Code."

Read the Bill at:


Wednesday, February 11, 2009

What Can President Obama's Administration Do?

Below is a link to an on-line petition asking President Obama's administration to ensure justice for all by supporting proper funding and support for state and local public defense. Specifically, the petition asks the administration to:

1. Support balance in the allocation of federal funds for state and local criminal justice systems through explicit language in statutes and regulations;

2. Identify indigent defense as a priority area for training and technical assistance;

3. Establish and fund a program of loan repayment assistance as required by section (c) of the John R. Justice Prosecutors and Defenders Incentive Act of 2008 to assist in the recruitment and retention of public defenders and prosecutors; and

4. Conduct a nationwide study to determine the extent to which people are convicted without access to counsel in misdemeanor and low-level felony cases.

I encourage you to leave comments and “take action” by using the forms supplied from the link embedded in the second to last sentence. If you want to create a more specific “ask,” in the form letter, please consider requesting that as lawmakers are set to restore Byrne-JAG funding within the economic stimulus package that they recognize the need for federal funding parity and push to include “public defense programs” within the statutory categories for which states are authorized to spend Byrne-JAG funds in 42 U.S.C. § 3751(a)(1). There is no bill pending at the present time, but it can’t hurt to soften the ground a bit for anticipated efforts in the near future.

Tuesday, February 10, 2009

LEGISLATURE WATCH: Criminal Internet Use

House Bill 82 would amend the telephone harassment statute (I.C. 18-6710) to include
e-mails, text messages and Internet postings.

" 'Internet posts' means use of internet sites including but not limited to, social networking sites and personal blogs." (Yipes! -Ed.) The Bill also asserts jurisdiction for a communication which "either originates in or is received in the state of Idaho."

The penalty remains the same: The first violation is a misdemeanor; the second, a felony.

The text of the bill is at:

Monday, February 9, 2009

Idaho Supreme Court Finds VSP Process Unconstitutional

Today in Smith v. State, the Idaho Supreme Court found that the statutory process for designating a person a Violent Sexual Predator was unconstitutional. In regards to the Sexual Offender Classification Board's proceedures, the Court found that "there are significant constitutional shortcomings in the statutory procedure as a result of the lack of procedural due process afforded an offender." In addition, the Court found that the process utilized in the district court to review the SOCB's designation did not cure the defects in the initial proceedings. Finally, the Court held that even if these issues hadn't been preserved at the distirct court level, Mr. Smith could assert ineffective assistance of counsel for the first time on appeal because Idaho does not have another procedure to raise such a claim in regards to a VSP designation.

UPDATE: Here is a link to the opinion:

Amendment to Withheld Judgment Statute Proposed

The Attorney General has proposed legislation to make it clear that the dismissal of a charge pursuant to I.C. 19-2604 would not expunge the defendant's criminal record. Specifically, it adds a subsection 4 to the statute which would provide: "Any action taken by a court pursuant to this section shall not result in the expungement of the defendant's criminal record, as defined in section 67-3001(4), Idaho Code." House Bill 0071.

The Bill's Statement of Purpose claims that the bill is intended to "clarify that Idaho Code 19-2604 is not an 'expungement' statute." The SOP further states that
"[n]otwithstanding the plain language of [the statute], the Idaho State Police have received orders purporting to expunge information, which is not authorized by statute." (This means you Brian Elkins.)

This, of course, is a separate issue from the question of what is the effect of a withheld judgment prior to discharge. That ball, as previously blogged, is still in our court. The state, however, seems satisfied with United States v. Sharp and now seeks to carve out even more from the statute's potential benefits.

Friday, February 6, 2009

Two New COA Cases

State v. Wright, No. 34017, while bad for Mr. Wright, actually has some good law for us. The Court states that expert testimony regarding the facts that affect the accuracy of eyewitness testimony should be admitted when eyewitness identification is:

1) a key element of the prosecutor's case, but is not substantially corroborated by evidence giving it independent reliability;
2) the defendant offers qualified expert testimony on specific psychological factors shown by the record; that
3) could have affected the accuracy of the identification; and
4) which are not likely to be known or understood by the jury.

The Court found that was not the case in Mr. Wright's case, however.

In State v. Ruperd, No. 32761, the Court of Appeals held that the District Court abused its discretion when it refused to reschedule the defendant's motion to suppress when the defendant failed to appear at the original hearing date. It wrote "[n]othing in I.C.R. 12 gives the district courts the discretion to treat a defendant's failure to appear as a waiver of his or her right to have a hearing on a timely motion."

Congratulations to Heather Carlson of SAPD.

Thursday, February 5, 2009


The New York Times reports that the National Academy of Science is about to issue a report on "scientific" evidence commonly used in criminal cases. "People who have seen it say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting."

This reports follows a 2004 NAS report totally discrediting comparative bullet lead analysis which the FBI was claiming could determine whether a bullet found at a crime scene came from the same batch as bullets found in a suspect's possession. That claim was a total fiction, as it turns out, yet the evidence was introduced in many criminal cases.
SCOIDBlog will provide a link when the report is issued.

Wednesday, February 4, 2009

Decision by District Court on Judicial Review Remanding to City is a "Final Order" for Purposes of Appeal

A decision, upon judicial review of a land use action by a City, remanding to the City for further consideration is a final order for purposes of appeal. Therefore, a Notice of Appeal must be filed within 42 days. Here, the party seeking judicial review obtained a remand, but lost on some other issues. It did not file a Notice of Appeal within 42 days thinking that the remand was not a final order. The Supreme Court disagreed and dismissed the appeal noting that IAR 11(a)(2) specifically includes "[d]ecisions by the district court dismissing, affirming, reversing or remanding an appeal." Goodman Oil Co. v. City of Nampa, No. 34284.

What's that got to do with criminal law practice? Not too much, but IAR 11(b)(10), which deals with appeals from the magistrate court to the district court, contains similar language to IAR 11(a)(2). Thus, Goodman would seem to apply by analogy. So, if you win a partial remand from the district court on an appeal from the magistrate court, Goodman requires that you file a Notice of Appeal within 42 days if there are issues you lost in the appeal.

Tuesday, February 3, 2009


Court of Appeals Judge David Gratton was sworn in on January 30th. He assumes the newly created fourth position on the COA.

Born and raised in Emmett, he attended BSU for his undergrad and U of I for law school.

After graduation, he clerked for U.S. District Judge Harold L. Ryan. He then joined Evans Keane LLP where his practice concentrated in product liability defense, litigation, commercial transactions and real property law.

Monday, February 2, 2009

OT: Stands for "off topic"

from Sen. Joyce M. Broadsword (R-Sagle)

Now that we're like so totally equal with men, what the the election of a woman president . . . um I mean with another appointment of a woman to be Secretary of State, and since we hold all those seats on the State Supreme Court (-2 since the '90s) it's time to eliminate the State Women's Commission and save the $31,000 it costs to run it for a year. Good work, Ladies!

Sigh. Now if we could only raise the lowly potato to equality amongst all tubers and raise up those beans, peas and lentils to the level of all the other legumes, we could get rid of those commissions too and really save some money.

Yours in equality, Joyce.

Here's the link: