Tuesday, March 31, 2009

Wendell Curfew Ordinance Unconstitutionally Overbroad

Today the Court of Appeals held the City of Wendell's curfew ordinance is unconstiutionally overbroad. In the Interest of John Doe, Docket No. 35004. In Doe, the ordinance at issue only provided exceptions if: (1) the minor was accompanied by a parent, or (2) the minor was on an emergency errand, or (3) if the minor was involved in other legitimate business as directed by their parents or school. Holding the ordinance unconstitutionally overbroad, the Court did not evaluate Doe's other two challenges to the ordinance (void for vagueness and equal protection challenge).

Importantly, the Court of Appeals adopted a method of analysis for determining whether the overbreadth of a curfew ordinance is "real and substantial." The method of analysis is "whether the curfew ordinance or statute is so broadly written that it unduly restricts the exercise of First Amendment activities to a degree determined to be unacceptable." In sum, the Court held "by failing to provide an exception for First Amendment rights, the ordinance does not aim specifically at evils within the allowable area of state control but rather sweeps within its ambit other activities that consitute an exercise of First Amendment rights."

The opinion also contains an interesting analysis of appellate jurisdiction and Rule 12, I.A.R. In Doe, Judge Ingram denied the juvenile's motion to dismiss. After accepting the juvenile's conditional admission, the court orally certified the constitutional challenge for appeal prior to disposition. Afterwards, the district court entertained Doe's appeal and rendered a decision on the merits.

Noting Doe failed to strictly abide by Rule 12, the Court noted "not all flaws in the appellate process are jurisdictional as the state asserts." The Court held "the failure to obtain the permission of the district court in this interlocutory appeal did not deprive the district court of jurisdiction. Accordingly, the state's failure to raise this procedural objection in the district court waived the issue. Under these circumstances, we will treat this appeal as an appeal by permission under I.A.R. 12." Rejecting the State's challenge, the Court of Appeal noted Rule 12, I.A.R. and I.C. 20-528 are independent vehicles for seeking appellate review of juvenile matters.

Prost to Dave Heida!


Justice Burdick on Appellate (and Other) Practice

Justice Burdick spoke at this morning's Fourth District Bar CLE on appellate practice. Much of what he offered though applies to all practice, even the practice of a life well-lived.

Credibility. Credibility is your most valuable asset and not one to be squandered. Incomplete or disingenuous statements of fact or law are harmful to your cause. As is hyperbole.

Civility. Civility is much more persuasive than incivility.

Conciseness. Choose your best issues and argue them in a logical concise manner. Consider every issue, every paragraph, every word. Include only those that lead to the result you are seeking.

Justice Burdick referenced Strunk and White's Elements of Style. And, he's right. I first read Elements of Style in 1976 and I last read it about six months ago. If you have not read it in a while, it's well worth a revisit. Thirty minutes with Elements can make a world of difference. It should be on your bookshelf or your desk right next to the court rules.

Five other tidbits --

1. The average time from filing of appeal to decision is 400 days.

2. When you prepare the Notice of Appeal, you must identify the court reporter by name for any transcripts you wish to order. If you don't know the name, check with the district court. If they can't help you, check with the Supreme Court Clerk's office.

3. All appellate briefs are now scanned and put on Westlaw. Therefore, the Court does not want juveniles, whether defendants or victims, referred to by their names. Follow the lead of the district court case title -- State v. Doe, State v. T.M., etc.

4. The Court is tightening up on the question of whether an adequate record has been made below. When a witness or evidence is excluded, a complete offer of proof must be made if the issue is to be preserved. That means an affidavit or testimony. A statement by counsel of "Well, she would have said . . . " won't cut it.

5. Experiments are now underway with electronic records. One day soon instead of the Clerk's Record and transcripts we'll all get a CD with the trial court record on it and create our own excerpts of record.

Wednesday, March 25, 2009

Unexplained Inconsistent and Irreconcilable Testimony Made Under Oath at Different Proceedings Cannot be Deemed Credible.

Nice win for IACDL member (and NevinLaw lawyer) Robyn Fyffe today.
Ever have a case where the officer testifies to one thing at the preliminary hearing and then testifies to something completely different at the motion to suppress? Anyone? Everyone? What happened at the hearing? Did the trial court find one version of the testimony to be credible and deny the motion?
That was the case in State v. Munoz. The "detective's testimony at the two proceedings was materially inconsistent and irreconcilable." Therefore, "[t]he district court's finding that Detective Pietrzak was a credible witness cannot be upheld where the record plainly shows that he was not." After emphasizing that there was no effort made to retract or correct his earlier sworn testimony, the COA states that "[i]n our view, a witness who has testified under oath to patently inconsistent descriptions of events and has not offered any explanation for the inconsistency cannot be deemed 'credible' in either instance." As there was no other evidence about the basis for the car search, the state failed to meet its burden of proving an exception to the warrant requirement.
Well done, Robyn!

Monday, March 23, 2009

Interesting Ninth Circuit Case from Idaho

Take a look at United States v. Driggers, wherein crack appellate lawyer Greg Silvey (the "Sage of Kuna") makes a worthy attempt to turn harmless error into reversible error per se by the way he framed the issue on appeal.

Greg got a nibble, but couldn't set the hook. The Ninth Circuit ended up finding the error in the jury instructions harmless. The case is the lead story in the excellent Ninth Circuit Blog. http://www.circuit9.blogspot.com/

Here's some advice from Steven Kalar:

"The second interesting side discussion in Driggers is on “constructive amendments.” Id. at *3. Trying to dodge harmless error review, Driggers argued that the defective standard instructions were a constructive amendment from the indictment (which alleged that he caused travel with the intent that murder be committed). Id. (NB: Constructive amendments require per se reversal).The Chief Judge doesn’t bite: he explains that “constructive amendments occur when the prosecutor proves, or the court instructs the jury to convict on, materially different facts or substantially different crimes than those charged in the indictment.” Id. at *3. That didn’t happen in this case. Id. While Driggers' gambit didn’t work, the approach illustrates a solid appellate strategy: to avoid winning the battle and losing the war, choose appellate arguments with the standard of review in mind."

An Idaho example can be found in appealing the denial of new trial motions. Those are reviewed (for some reason) under the deferential "abuse of discretion" standard. However, the underlying argument for the new trial may have a better standard of review on appeal, e.g., the question of whether a jury instruction misstates the law is reviewed de novo, a much better place to be on appeal.

Nice try Greg.

Thursday, March 19, 2009

Cop's Foot in Door Kept Truckin' to Illegal Search

Motel security calls cops about the smell of marijuana coming from a room. Cops show up, knock on the room door and notice a strong smell of marijuana when the door is opened. Cop asks for ID and starts to question occupant about smell. Occupant attempts to close door, but is prevented by cop's foot. Cop then pushes door open so he could keep an eye on occupant. Occupant refuses cop's request to enter room (good boy!). Several minutes later backup arrives and occupant relents, allowing cops in and consenting to search (bad boy!). Naturally a roach is discovered and occupant is arrested for misdemeanor marijuana.

Occupant moves to suppress, but neither magistrate judge nor DJ see anything wrong. Theory being, foot in door is illegal entry but consent to second officer was voluntary.
COA reverses and vacates the conviction. First, it confirms that "the first officer unlawfully entered the motel room when he stopped the door from closing with his foot and then pushed the door open so he could continue to observe Hudson." It then stated that, under the attenuation doctrine, the court must determine "whether the police acquired the evidence by exploiting the illegality or by means sufficiently distinguishable to be purged of the primary taint."

In this case, the police were still exploiting the illegal intrusion because the police prevented the occupant from shutting the door. "Therefore, because the unlawful intrusion ws ongoing, the search and subsequent acquisition of incriminating evidence was contemporaneous and irrevocably intertwined with the misconduct." Also, there were no intervening circumstances to independently justify the police intrusion. Thus, the evidence had to be suppressed because the "consent to the second officer to search his room was tainted by the unlawful police instrusion."

Nice win by IACDL member Bryce Powell. Well done, Bryce.

Wednesday, March 18, 2009

Happy Anniversary Clarence

Today is the anniversary of Gideon v. Wainwright. A sincere SCOIDBlog thank you to all the public defenders and appointed counsel.

Justice Black wrote: "From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

Even though this noble ideal has not been met, you guys make its realization closer. Keep fighting the good fight.

Tuesday, March 17, 2009


The Stone opinion, blogged below, has been pulled off the Court's website. Astute readers might have noticed that it was dated as being filed tomorrow. (I didn't.) I assume the same opinion will issue on the 18th. I will provide a working link if that happens.

UPDATE: 3/18 - It's back. Here's the link: http://www.isc.idaho.gov/opinions/Stone,%20Faron.pdf

Motion to Withdraw Guilty Plea Must be Supported by Admissible Evidence

"When the stated grounds for a motion to withdraw a guilty plea require a presentation of evidence, the Idaho Rules of Evidence apply."

In State v. Stone, the defendant pleaded guilty but filed a pro se motion to withdraw his guilty plea prior to sentencing where he presented some twenty factual grounds for withdrawal of his plea, including that his attorney failed to advise him of the elements of the offense and that counsel did not advise him of a potential defenses to the charge.

The trial court denied the motion finding that the plea was knowing, intelligent and voluntary. The use of this standard was error because a motion to withdraw a guilty plea made before sentencing need only be supported by a "just reason." A constitutional defect in the plea need not be shown to meet either the "just reason" standard or the "manifest injustice" standard (used in cases where the motion is made after sentencing).

The COA, nevertheless, affirmed the denial of the motion because Mr. Stone did not present any evidence to support his allegations. "Because Stone did not submit any admissible evidence, by testimony or otherwise, to show any allegation made . . . were true, the motion could not have been properly granted under either a 'just reason' standard or constitutional standard."

"Whether [evidence needs to be presented] depends upon the basis for the motion -- whether it turns on matters that appear in the court's record, or that occurred in open court, or alleged events that occurred outside of the judicial proceedings and that the State has not acknowledged or stipulated to."

Here's the link: http://www.isc.idaho.gov/opinions/Stone,%20Faron.pdf

It seems to be common practice to support a motion to withdraw a guilty plea with simply unsworn assertions by the defendant or with a proffer by defense counsel. That, it is now clear, is not enough. Be prepared to prove up the reasons in support of your motions either by evidence or stipulation.

The 'good news' is that this ruling will presumably apply to other motions, including, for example, motions by the prosecution to continue a trial for witness unavailability. Defense counsel can now demand the state put on admissible evidence to prove its claim, Or we can just argue the absence of admissible evidence at the hearing.

This case has the potential to be a can o' worms (in case you were wondering about the illustration above) because sometimes, as here, the defendant will have to testify about counsel's alleged deficiencies. This will create a conflict of interest between counsel and client. Further, the state might call the defense attorney to challenge the defendant's allegations. All this will necessitate the appointment of conflict counsel.

Monday, March 16, 2009

Judge Perry Announces Retirement

Court of Appeals Judge Darrel Perry has announced his retirement effective September 30, 2009. Judge Perry was appointed to the COA in 1993 after serving eleven years as a magistrate judge in Nez Perce County. He will continue to sit with the COA as a senior judge.
Applications for Judge Perry's position will be accepted by the Idaho Judicial Council.

Wow, I wish I was retiring at 54. Nice planning, Judge. As one of those who contributed (generously) to the multi-trillion dollar decrease in 401K value, my current retirement plan is 'work 'til I drop.' Perhaps, though, if SCOIDBlog accepted paid advertisements . . . .

Wednesday, March 11, 2009

He's Kidding. I Think.

The end of the Legislative Session sometimes brings out Bills that no one thinks are going to pass, but get filed for reelection purposes. Such is the case, I presume, with Representative Pete Nielsen's (R-Mountain Home) Bill, H 229.
The Bill purports to limit the Governor's power to restrict firearm rights during times of rebellion. It provides that
"[d]uring the continuance of any proclaimed state of extreme emergency, insurrection or martial law, neither the governor nor any agency . . . of the state shall impose additional restrictions on the lawful possession, transfer, sale, transport, storage, display or use of firearms or ammunition." The purpose of the Bill is "[t]o make the law consistent to keep and bear arms by the inclusion of martial law." [Huh?]
Hey Pete. Couple of questions. Are you serious? Or is this just some sop to your NRA friends? Doesn't the Second Amendment and Article 1, section 11 of the Idaho Constitution ("The people have a right to keep and bear arms, which right shall not be abridged. . . . Nor shall any law permit the confiscation of firearms, except those actually used during the commission of a felony.") cover this? Do you know anyone who's gonna turn in his guns during an insurrection just because the Governor tells him to? What part of Mountain Home are you from?
Seriously. Please cut this nonsense out. There are real problems in this State and you have better things to do.

Tuesday, March 10, 2009

Further Thoughts: Speedy Trial Case

Oliver Loewy points out that Brillion does not foreclose an ineffective assistance of counsel claim for failing to bring the case to trial within the constitutional speedy trial period. In Brillion's case there might even be a deprivation of counsel claim as the dissent points out there appears to be long periods where he did not have any attorney.

Monday, March 9, 2009

Speedy Trial Delay Caused by Inaction of Assigned Counsel is Not Attributable to the State Absent a Systemic Breakdown in Public Defense System

Claims of constitutional speedy trial violations are considered under the Barker v. Wingo, 407 U.S. 514 (1972), balancing test, in which the conduct of both the defendant and prosecution are weighed. In this case, there was a delay of three years regarding which the state court concluded that "a significant portion of the delay in bringing the case to trial must be attributed to the state [as] most of the delay was caused by the inability or unwillingness of assigned counsel to move the case forward." The Vermont Supreme Court dismissed the prosecution.

The USSCt reversed. It held that assigned counsel's failure to move the case forward was not the fault of the state due, in part, to the defendant's disagreeable behavior toward appointed counsel. "[A] defendant's deliberate attempt to disrupt proceedings [should] be weighed heavily against the defendant." However, "[t]he general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay caused by a systemic 'breakdown in the public defender system' . . . could be charged to the State"

Vermont v. Brillion, http://www.supremecourtus.gov/opinions/08pdf/08-88.pdf

With this case, along with United States v. Hayes and Arizona v. Johnson, Justice Ginsburg has hit the Trifecta in bad rulings for criminal defendants this term.

Friday, March 6, 2009


The State Supreme Court is working hard, just not on criminal cases. It issued sixteen opinions this week, but there was not a single criminal law case in the pile.

Wednesday, March 4, 2009

Lamb's Arguments Sheared by COA

The Court of Appeals made short work of the argument that the 2006 amendment to I.C. 18-8805(5), which made a third DUI within ten years a felony, could not consider DUI convictions obtained before the amendment. Prior to 2006, the magistrate court would warn a defendant at sentencing that it took three DUIs within five years to take it to the district court.

Pointedly stating that "[a] trial court's advisement of the risk of future penalties under a recidivist statute is a warning designed to deter the defendant from committing future crimes, not a promise that puts restraints on future prosecutions," the Court of Appeals held there were neither ex post facto nor due process problems with using the defendant's 2001 and 2003 convictions to elevate his 2007 DUI charge to a felony.

State v. Lamb can be read at: http://www.isc.idaho.gov/opinions/lamb34969.pdf

Tuesday, March 3, 2009

One in Every Eighteen Idahoans is in the Corrections System

According to a report issued Monday by the Pew Center, one in every eighteen Idahoans is in the corrections system. We appear to take a backseat only to Georgia in correcting ourselves.


May Poor People be Punished More Severely?

The Court of Appeals held today that a defendant's inability to pay restitution may be considered a factor in setting the sentence, although it cannot be the sole factor in imposing imprisonment.

In State v. James Todd, http://www.isc.idaho.gov/opinions/todd35012.pdf, the Court upheld a sentence imposed in a grand theft case which was based in part on Mr. Todd's inability to repay the $57,000 in purloined funds. But, as it was "by no means the only factor considered by the district court" and other factors supported the sentence, it was a permissible consideration.

While I can see how the ability to pay restitution is a mitigating circumstance at sentencing per I.C. 19-2521(2)(f), I fail to see why it should ever be considered an aggravating factor. Isn't that just getting a larger dose of punishment because you're poor? Without getting all legally-sophisticated about it: That ain't right.

It seems to me that the inability to pay, unless voluntary on the part of the defendant, is irrelevant to the sentencing decision. Moreover, consideration of it to justify imprisonment, even in part, is bad public policy. Classism is not an ethically solid basis from which to impose sentences irrespective of whether, as the COA holds, it is not a violation of due process or equal protection.