A Late Rush of Opinions Today

The Supreme Court issued seven opinions in civil cases this afternoon, including another dismissal of a parental termination case where there was no Notice of Appeal to the Supreme Court filed after the Court granted a permissive appeal. (See "Notice of Appeal Must be Filed Even When Permissive Appeal is Accepted by Supreme Court" May 7th SCOIDBlog).

The Court of Appeals also dismissed another appeal (the second this week! See "Amended Petition Did not Restart Time to File Notice of Appeal" May 26th SCOIDBlog) for the failure to file a timely notice of appeal. State v. Wally Kay Schultz, http://www.isc.idaho.gov/opinions/Schultz,%20Wally.pdf.

In Schultz, the district court issued a "Temporary Order on Rider Review" placing the defendant on probation. Three days later, the court issued an "Order Upon 180-Day Review Hearing." The defendant filed a Notice of Appeal 42 days after the second order, but 45 days after the first. The COA says that's too late because the time to file a NOA begins to run when the court "releases its retained jurisdiction or places the defendant on probation." Schultz was placed on probation at the time of the "Temporary Order" and thus the NOA was three days late.

Again, as with the Ciccone case, Mr. Schultz will now have to file a post-conviction petition alleging ineffective assistance of trial counsel to try and get his appeal reinstated. There is no reason to wait until the last day to file the NOA. If counsel had filed a week after the second order, the NOA would have been timely as to the first order too.

Finally, the Supreme Court, in a 3-2 decision, upheld a murder conviction over multiple challenges. State v. Larry Sverson, http://www.isc.idaho.gov/opinions/seversonopinion.pdf. This is a big opinion which will take some time to digest, as there are claims of conflict of interest, improper amendment of indictment, jury unanimity instructions, sufficiency of the evidence and prosecutorial misconduct.

There's my weekend reading assignment.

Judge Bybee and the Torture Memos

Two of my law school classmates, Mike King and Howard Goodfriend, have written a Guest Editorial in today's Seattle Times arguing why torture memo author Jay Bybee should resign from the Ninth Circuit Court of Appeals. Believe me, Mike and Howard cover the political spectrum from right to left, so to see them co-author this editorial is telling.

They write:

"In his memo, Bybee ratified severe interrogation techniques, including waterboarding, face slapping, wall-slamming and placing a detainee inside a cramped confinement box with live insects said to be poisonous. After a CIA briefing on each method, in specific and gruesome detail, Bybee knew exactly how these techniques were inflicted on an individual detainee, several times per day, over a period of several weeks. Yet he concluded that the repeated use of these interrogation methods does not constitute the crime of torture under federal law."

And here's the part that got me:

"All lawyers take an oath to uphold the rule of law. Even a private lawyer may not advise a client on how to commit a future crime. But Bybee was not acting as a mere private lawyer advising a private client, and his opinion does not involve conduct undertaken merely for his own financial gain. As assistant attorney general, Bybee had a higher calling."

To read the entire editorial, click here:
http://seattletimes.nwsource.com/html/opinion/2009274402_opinb29king.html

Petition to End Juvenile Life Without Possibility of Parole Sentences.

The Court of Appeals recently affirmed a Life Sentence Without Possibility of Parole (LWOP) imposed on a 16 year old. State v. Windom (See April 10 SCOIDBlog). Hopefully, the Idaho Supreme Court will accept review of that sentence in light of the strong mitigating circumstances.

One wonders, however, why LWOP is even on the table for a juvenile. According to Human Rights Watch, the United States is alone in the world in imposing LWOPs on juveniles and that we have nearly 2500 offenders serving LWOP for crimes committed while they were juveniles. Further, it estimates that 59 percent of youth who receive LWOP had no prior adjudications or convictions! Additionally, data shows that black youth are serving LWOP sentences at a per capita rate that is 10 times higher than the rate of white youth.

Luckily, there is a bill pending before Congress which would require states to give juvenile offenders an opportunity to be paroled. HR 2289, entitled the Juvenile Justice Accountability and Improvement Act of 2009, would effectively end juvenile life without parole. Here's a link to the text of the Bill: http://www.govtrack.us/congress/billtext.xpd?bill=h111-2289

Here is a link to a page where you can get information about the bill and access a petition in favor of the Bill. http://hr4300.com/Home_Page.php

Also, it appears that there will be a hearing on the Bill on June 9th before the House Judiciary Committee. Here is a link with addresses and suggestions if you want to write a letter to the Committee in support of the Bill. http://sites.google.com/site/hr2289/.

Finally, the May 25 entry in Professor Berman's Sentencing Law and Policy Blog has an article on this topic yesterday along with some additional links. http://sentencing.typepad.com/

Amended Judgment Did Not Restart Time to File Notice of Appeal

An appeal in a first-degree murder case was dismissed today because the Notice of Appeal was not timely filed.

The district court imposed a determinate life sentence on June 7, 2005. The judgment was filed the same day, but mistakenly file-stamped "May 7, 2005." An amended judgment was filed on June 21. "The only change between the original and amended judgment concerns the date of the file stamp." Ciccone filed a Notice of Appeal 42 days after the entry of the amended judgment, but 56 days after the original judgment.

Not good enough says the Court of Appeals:

"With exception of the dates of the file stamp and the court's signature, the amended judgment is identical to the original judgment and did not alter any of the terms from which Ciccone now appeals. In other words, Ciccone is not appealing the only changed term-the date of the file stamp on the amended order. Rather, he is appealing several substantive issues-speedy trial, due process, prosecutorial misconduct, and excessive sentence-which he could have raised upon entry of the original judgment that, as noted, the register of court actions indicates was filed on June 7."

The COA concludes,"[t]hus, the notice of appeal, filed fifty-six days from when the initial judgment and commitment was entered, is untimely as to those issues."

State v. Ciccone, http://www.isc.idaho.gov/opinions/Ciccone,%20Albert.pdf


Now Ciccone will have to file a post-conviction petition alleging ineffective assistance of counsel for failing to timely file the NOA, if he hasn't done so already.

Michigan v. Jackson Overruled

The conservative activist justices on the United States Supreme Court have overruled Michigan v. Jackson, which has for 23 years forbidden the police from initiating the interrogation of a criminal defendant once the defendant has invoked the right to counsel at an arraignment or similar proceeding.

After waiving Miranda rights and making inconsistent, but incriminating, admissions, Montejo was arrested for murder. He then was brought before a judge, held without bond, and was appointed counsel, apparently without him requesting appointment. Later that day, the police went to the lockup, re-Mirandized him, and got him to take a trip to look for the murder weapon. During the trip, he wrote a letter of apology to the victim's widow. Appointed counsel first spoke to the defendant upon his return to the jail. The letter of apology was admitted at trial.


The Supreme Court held that the letter should not be suppressed under a per se Sixth Amendment rule and thus overruled Jackson. It conceded, however, that the letter of apology might have been taken in violation of Edwards v. Arizona and remanded for that determination. The Court also noted that the defendant could assert any claim he might have that the waiver of Sixth Amendment rights post-court appearance was involuntary.

Montejo v. Louisiana, http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf

Memorial Day Poem

In Flanders Fields the poppies blow

Between the crosses row on row,

That mark our place; and in the sky

The larks, still bravely singing, fly

Scarce heard amid the guns below.

We are the Dead. Short days ago

We lived, felt dawn, saw sunset glow,

Loved and were loved, and now we lie

In Flanders fields.

Take up our quarrel with the foe:

To you from failing hands we throw

The torch; be yours to hold it high.

If ye break faith with us who die

We shall not sleep, though poppies grow

In Flanders fields.

John McCrea - 1915

Blog Fodder

Nothing of real nutritional value this week.








The Court of Appeals issued two opinions. The first, State v. Livas, http://www.isc.idaho.gov/opinions/Livas,%20Gilbert.pdf, holds that the trial court's need to resolve a motion to reconsider the denial of a motion to suppress may be good cause to extend a trial date past the statutory speedy trial time. I wonder if this case should apply to a regular timely pre-trial motion, which one presumes the Legislature anticipated when setting the six month speedy trial time, since the motion here was one to reconsider.

The second, State v. Sanchez, http://www.isc.idaho.gov/opinions/Sanchez-I-opn.pdf, affirms an aggravated first-degree murder conviction. The COA holds that the recorded calls from the jail and the 911 call were not testimonial evidence and therefore not covered by the Confrontation Clause. The Court also applies the unwritten rule that admission of gory photographs (in this case hospital and autopsy photos) in a murder case is never error.

Finally, Senator Crapo responded to my letter about funding the John R. Justice Act (See May 15th blog): "As a fellow attorney, I understand the necessity to attract intelligent, talented graduates to serve the state of Idaho as public defenders. . . . As a member of the Senate Budget committee, please rest assured I will continue to work within the very tight budget restraints we now face to support Idaho's funding priorities." I'm glad to see he supports the funding the Act, but the reference to "very tight budget restraints" suggests his support is tepid.

Have a good weekend and check on Monday for a Memorial Day poem.

IRCP Rule 60(b) Available for Relief from Dismissal of Post-Conviction

Eby v. State, http://www.isc.idaho.gov/opinions/Eby,%20Daniel.pdf, decided last week by the Court of Appeals, clarifies that a Civil Rule 60(b) motion for relief from a final order may be granted when a post-conviction action has been dismissed under Civil Rule 40(c) for inactivity.

An attorney's neglect in allowing a post-conviction proceeding to be dismissed for inactivity justifies an order to reactivate the original post-conviction action pursuant to Rule 60(b). While none of us should ever neglect a case so as to result in a Rule 40(c) dismissal, should that happen, file a Rule 60(b) motion for relief ASAP. (Rule 60 allows motions to be filed "within a reasonable time, and for reasons (1), (2), (3) and (6) not more than six (6) months after the judgment . . ." )

Wink Wink, Nudge Nudge, Say No More

The Court of Appeals follows the Purdum case (see April 20th SCOIDBlog) to uphold a stop of a vehicle. The police suspected the vehicle contained a probationer who had consented to be searched.

Of special interest is the concurrence of Judge Schwartzman where he "note[s] that Hedgecock's [standard boilerplate] terms of probation carry the potential of transforming every police officer in the State of Idaho into a de facto probation/parole officer." The Judge states that "[t]he potential for arbitrary, capricious or harassing enforcement is self-evident."

He then goes on to give defense lawyers some food for thought in his penultimate paragraph:

"Just how far this type of probationary term can be stretched, because of the subject's diminished expectation of privacy, remains to be seen. See Samson v. California, 547 U.S. 843, 850-856 (2006) (while upholding suspicionless search of parolee on a public street conducted by a police officer, Supreme Court disavowed the proposition that parolees, like prisoners, have no Fourth Amendment rights, and recognized California's prohibition against "arbitrary, capricious or harassing" parole searches); compare State v. Purdum, ---Idaho, ----, --- P.3d ---- ---- (2009) ("While the United States Supreme Court has not yet addressed whether a probationer may waive his Fourth Amendment rights through acceptance of probationary search conditions (fn.1), this Court has determined that a probationer's consent to searches constitutes a waiver of Fourth Amendment rights.") (citing State v. Gawron, 112 Idaho 841, 736 P.2d 1295 (1987). Footnote one of Purdum cites to United States v. Knights, 534 U.S. 112, 118 (2001) and Samson, 547 U.S. at 852 n. 3, both of which refer to consent in the Schneckloth [ v. Bustamonte, 412 U.S. 218 (1973) ] sense of a complete waiver of Fourth Amendment rights. This leaves for possible future consideration such issues as voluntariness, understanding, revocability, and serving the legitimate ends of probation which I only mention in passing." (emphasis in original)

He concludes: "I suspect that the appellate courts of Idaho have not seen the last of this term of probation."

A nod's as good as a wink to a blind bat. KnowwhatImean?

State v. Hedgecock, http://www.isc.idaho.gov/opinions/Hedgecock,%20William.pdf

Urge Your Senators To Support Loan Forgiveness Bill Funding

The National Legal Aid and Defender’s Association is asking for our help to convince Congress to fund the John R. Justice Act. The act, passed last year, provides for student loan forgiveness for those law school graduates who take jobs in prosecution or public defense. It allows $10,000 of loan forgiveness each year for the first six years of service. But the bill needs funding.

Loan forgiveness allows public defense offices to compete with private firms to recruit and retain the best new lawyers. With the crushing debt burden so many law graduates leave school with, loan forgiveness could make public defense a viable option for more new lawyers.

Please help by contacting our senators to support funding of the Act. Senator Mike Crapo, himself a Harvard Law School graduate, is on the Senate Budget Committee. Here is a link to the "E-mail Me" page on Senator Crapo's website.http://crapo.senate.gov/contact/email.cfm. Senator Jim Risch, a U of I law school graduate and former Ada County Prosecutor, can be e-mailed at: http://risch.senate.gov/webform.cfm.

For Your Consideration

All you lawyer SCOIDBlog readers should have received the Court of Appeals Applicant Qualifications Questionnaire by now. And if you're wondering whether to fill it out, please remember that State Appellate Public Defender Molly Huskey has applied.

She is, in my opinion, the best qualified of the candidates and has truly done a great job in running SAPD. Molly is intelligent, hard-working, and always strives to do her best for her clients. And, I know from personal experience, she is always helpful to lawyers who seek her advice.

While it would be a great loss to the Bar to lose Molly to the Judiciary, it would certainly be to the Bench's advantage. (And would it kill us to have another woman on an appellate court? Judge Lansing probably gets lonely there all by herself.)

For you non-lawyers, there is also a Public Questionnaire, which can be found here:
http://www.judicialcouncil.idaho.gov/Perry%2009B_Public%20Questionnaire.pdf.

Fourth Amendment Win for Defendant

The Supreme Court has affirmed the granting of a motion to suppress.
State v. Willoughby,
http://www.isc.idaho.gov/opinions/State%20v.%20Willoughby,%2035289.pdf

The Court held that an anonymous tip that there was a fight in a parking lot, which was not corroborated by officer observation or other evidence, did not amount to reasonable and articulable suspicion to seize the driver of a car which was stopped in the parking lot.

There is a lot more to this case, including a discussion of how to make an adequate record for appeal (the state forgot to admit diagrams of the parking lot drawn during the hearing into evidence) and whether there is a seizure of the driver of an already stopped vehicle as soon as the police turn on their overhead lights (Answer: Not per se, but it is an important factor). It is definitely worth a close read.

Congratulations to Fred Loats!

Follow Up on NSA Forensic Science Report

In light of the NSA report criticizing the state of forensic science [See April 15 SCOIDBlog], some scientists are taking a closer look at the reliability of widely accepted tests.

The New York Times has a report on this today. Plugging Holes in the Science of Forensics,
http://www.nytimes.com/2009/05/12/science/12fore.html?ref=science.

One interesting bit is on examiner bias. One researcher "has conducted studies that show that when working on an identification, fingerprint examiners can be influenced by what else they know about a case. In one experiment, he found that the same examiner can come to different conclusions about the same fingerprint, if the context is changed over time."

So knowing too much about a case can influence examiner results. We see something like this with photo lineups where the officer knows who the suspect is and then unintentionally tips off the witness. Thus, the need for double-blind lineup procedures. Likewise, maybe our state crime labs need to be independent, financially and otherwise, from law enforcement so to minimize pro-prosecution examiner bias.

Update on Canyon Co. Public Defender

The Idaho Press-Tribune is reporting that Third District Administrative Judge Juneal Kerrick has appointed a committee of three local attorneys to consider public defender candidates

Committee members are Gregg E. Lovan (Lovan and Roker), Christopher Nye (of White, Peterson) and William H. Wellman (Owyhee County PD). The panel will review the applicants and recommend between three and five to the Canyon County commissioners. The new contract will be effective Aug. 1.

Klaus Wiebe and Scott Fouser each submitted an application. Also applying are:

• Bond Law Chartered (Virginia Bond-until recently a Canyon County Deputy Prosecutor)
• Dodge Law Office (Shari Dodge - in private practice, former Canyon County Deputy Prosecutor and candidate for Canyon County Prosecutor)
• Gordon Petrie (recently retired District Judge, associated with Gulstrom & Henson, long-time Gem County Magistrate, former Nez Perce County Prosecutor)
• Chad Gulstrom (A former Canyon County Deputy Prosecutor in private practice since 2001)
• Ryan Henson (another former Deputy Canyon County Prosecutor, was also a deputy prosecutor in King County, Washington)
• Mark Mimura (Mimura Law and Gem County PD).

Update: Skelly from the excellent blog "Arbitrary and Capricious" (there's a link on the Recommended Sites box to your right) says that it's "interesting to note the number of former long-time prosecutors on the list who've found a new interest in indigent defense."

Notice of Appeal Must be Filed Even When Permissive Appeal is Accepted by Supreme Court

In a strange opinion, the Supreme Court dismissed a permissive appeal. It seems that the appellant never filed a Notice of Appeal to the Supreme Court after the Court accepted the permissive appeal. Consequently, the Court had no jurisdiction. That part of the opinion is written by Justice W. Jones. Justice Horton then files a special concurrence, joined by the remaining three justices, which agrees that the appeal must be dismissed but goes on to address, in admitted dicta, the merits of the appeal.

In re the Matter of the Termination of the Parent-Child Relations of John Doe, Child, and John Doe I, Parent, http://www.isc.idaho.gov/opinions/DEpt%20of%20H&W%20v%20Doe%20.pdf



After the Magistrate Court terminated parental rights, the parent filed a Notice of Appeal to the District Court. Five months later, the magistrate entered an Order Recommending the Supreme Court Accept a Direct Permissive Appeal Pursuant to I.A.R. 12.1. The Supreme Court granted a permissive appeal, but the appellant never filed a Notice of Appeal to the Supreme Court.

The Court raised the question of jurisdiction sua sponte and then dismissed the appeal because "[a]fter this Court enters an order permitting parties . . . to appeal directly to the Supreme Court, the parties are required to file a notice of appeal with the lower court."

The Court also noted that the Magistrate Court lost the authority to issue the Order Recommending the Supreme Court accept the appeal when the Notice of Appeal to the District Court was filed. Thus, the Supreme Court "improvidently accepted" the appeal.

Justice Horton's special concurrence noted that the Court itself did not follow the rules regarding permissive appeal because its Order accepting the appeal did not "grant[] leave to [the] party to file a notice of appeal within a time certain" as required by IAR 12.1(d). And, it appears the appellant did not have actual notice that s/he was required to file a Notice of Appeal. Nevertheless, Justice Horton agreed that without a Notice of Appeal the Court had no jurisdiction.

However, he goes on to say that "[b]ecause this Court's order evidently contributed to the Appellant's failure to file a notice of appeal to this Court, I believe that a discussion of the merits of this appeal is warranted." He then found that there was substantial and competent evidence in the record to support the magistrate's finding that the parent had abandoned and neglected the child and that termination was in the best interests of the child.

Justice Horton concludes: "I am conscious that Appellant's failure to file a notice of appeal to this Court renders this concurrence mere dicta. However, I think that the prudential considerations that would normally warrant silence as to the merits of this appeal are outweighed by the liberty interest in the parent-child relationship."

I think Justice Horton's heart is in the right place on this one. These cases need to be decided quickly for the sake of both parent and child. I wonder, however, how this dicta is going to affect the District Court's resolution of the appeal which is, I presume, still properly before it. Well, actually, I don't wonder. The special concurrence will no doubt be adopted by the District Court who will read the writing on the wall.

At first glance, I'm not sure that's the right way to resolve this case. The only thing the Supreme Court could dismiss was the permissive appeal before it. The timely appeal to the District Court is still in effect, it seems to me, and the District Court still needs to decide the matter. But, of course, the matter has been "decided" for the District Court via the dicta. The parent's proper appeal to the District Court is now just a charade.

Maybe the Court should have issued an amended order granting the parent time to file the NOA and then decide the case. I don't think there's an appellate rule prohibiting the Court from amending its prior order. If there is, I guess I'm with Justice W. Jones and think that straight up dismissal without any further opinion would have been the best route so the District Court could have made an independent decision on appeal.

Lessons learned: 1) File a Notice of Appeal to the Supreme Court if you ever get it to accept a permissive appeal; 2) Don't count on the Court to give you instructions on how to perfect your appeal.

From The Onion

I don't get that last one, but please don't explain it to me.



The Onion is found on-line at: http://www.theonion.com/

List of COA Candidates Out

Here's a list of the applicants for the Court of Appeals position open due to the retirement of Judge Perry. http://www.judicialcouncil.idaho.gov/Perry%2006C_Candidates.pdf

Be sure to let the Judicial Council know what you know about them.

Grammar Saves the Day for Federal Defendant

As everyone knows, "[w]here a transitive verb has an object, listeners in most contexts assume that an adverb . . . that modifies the verb tells the listener how the subject performed the entire action, including the object." Therefore, the use of the word "knowingly" in the aggravated identity theft statute, which prohibits the knowing use of a means of identification of another person during the commission of certain crimes, requires the government to prove that the defendant knew that the means of identification at issue belonged to another person.

Flores-Figueroa v. United States, http://www.supremecourtus.gov/opinions/08pdf/08-108.pdf.

I was kidding with that "everyone knows" part. But now that we do know, this rule must have many other applications in our Idaho statutes. There are adverbs modifying transitive verbs all over the Idaho Code. Right?

By the way, Grammar Girl's Quick and Dirty Tips for Better Writing is a handy website. That's Grammar Girl pictured above. You can find the website at: http://grammar.quickanddirtytips.com/ I'm going to use it sometime today to figure out that whole transitive verb thing.

On a serious note: The Supreme Court has accepted review in two cases from Florida presenting the question of whether the 8th Amendment bars Life Without Possibility of Parole sentences for juveniles in non-murder cases.