Tuesday, June 30, 2009

Overview of Supreme Court Term

New York Times reporter Adam Liptak gives his overview of the just completed Supreme Court Term on today's "Fresh Air" on National Public Radio. The first part of the program deals with Ricci, et al., v. DeStefano (the Firefighter case) and the effect of the ruling on the Sonia Sotomeyor nomination. He then goes on to discuss the school search case, the judge campaign contribution case and other opinions.

SCOID to Review Constitutionality of Wendell's Curfew

Dave Heida advises that the SCOID has granted the State's Petition for Review filed in In the Interest of John Doe, Docket No. 35004.

Apparently, the State has only sought review of the CoA analysis holding Wendell's curfew ordinance unconstitutionally overbroad. As you may recall from this Blog, the CoA punted when confronted with the juvenile's void for vagueness and equal protection arguments. It will be interesting to see if the Supreme Court reaches the merits of each of three constitutional challenges.

A copy of the CoA's decision can be found here: http://www.isc.idaho.gov/opinions/Doe,%2035004.pdf

Good luck Dave!!!

Monday, June 29, 2009


Dayo Onanubosi was appointed as a magistrate judge in Canyon County today. He took both his undergraduate and law degrees from the U of I. Dayo has practiced criminal law since 1995, most recently as a deputy public defender in Canyon County.

A little known fact about Dayo is that he ran the sixth fastest 100 meter time in U of I history (10.38 in 1987) which is several places ahead of Olympic Gold Medalist, Wheaties box model, and U of I teammate Dan O'Brien's best collegiate time of 10.44 (set in 1989).

Congratulations and best wishes.

Mark Mimura Named Canyon Co. Public Defender

The current contract holders, Wiebe & Fouser, have sued the county for terminating their contract and for providing inadequate resources for indigent defense. A hearing on their motion for injunctive relief is set for July 7.



Friday, June 26, 2009

Juveniles in Adult Confinement at Heightened Risk of Sexual Victimization

The Prison Rape Elimination Commission, created by the Prison Rape Elimination Act of 2003, issued its final report this week.

Prison sexual abuse is common. A 2007 survey conducted by the Bureau of Justice Statistics revealed that 4.5 percent of prisoners had experienced some form of sexual abuse within the previous 12 months. While 4.5% might seem insignificant, it is more than 65,000 victims given the large number of prisoners.

The full report is 276 pages long and I haven't read it, but while skimming it one of the Commission's findings stood out: "Juveniles in confinement are much more likely than incarcerated adults to be sexually abused, and they are particularly at risk when confined with adults."

We all suspected this, of course, but with the way Idaho Courts are waiving juveniles into adult courts even when all the experts agree it is not appropriate and then handling out lengthy prison sentences like Halloween candy, it might be worth citing this study to prosecutors and judges.

The full report can be found at: http://nprec.us/files/pdfs/NPREC_FinalReport.PDF

Thursday, June 25, 2009

Bastille Day RSVP Link Fixed

The RSVP link on the right hasn't been working for everyone, but I think I've fixed it.

Please give it a try and let us know that you're coming to the party.

SCOTUS Opinions Today

SCOTUS issued opinions interpreting the Fourth and Sixth Amendments today.

In the Confrontation Clause case, Melendez-Diaz v. Massachusetts, the Court held, 5-4, that a lab chemist must be called to testify in order to admit at trial an analysis that certain substance was cocaine. (We need to read this case with an eye toward challenging the admission of BAC readings in DUI cases without expert testimony.)http://www.supremecourtus.gov/opinions/08pdf/07-591.pdf.

In the Fourth Amendment case, the Court held that a strip search of a 13-year-old by school officials who suspected her of possessing prescription strength ibuprofen was unreasonable. (Nevertheless, the school officials were entitled to qualified immunity because the law in this area was not clearly established.) Safford Unified School District #1 v. Redding, http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf

I believe this completes the criminal law related cases before the Court this term. The final cases will be released on Monday.

Tuesday, June 23, 2009

Thanks JD. Job Well Done.

Thanks for filling in as SCOIDBlog administrator. And, by the way, that outfit works for you.

I'm back from the land of deep fried cod and soggy chips. (Flaccid Fries?) There's a lot of history in Britain and, as they say, it could have been ours too, if we'd only paid our taxes. Luckily we didn't. While I was there, their appellate court upheld the application of a statute which takes away the right to a jury trial.

In the case at question, the defendant is charged with an armed robbery where 1.75 million pounds was stolen. (That's a lot of money, even in a country where a mini-pizza and a pint of beer can set you back $30.) At his first trial, he had a heart attack, but his co-defendants were acquitted. At the second, the jury hung. The third was a mistrial after allegations of jury tampering were made by the government. (Ironically, the cost of the three trials has been about 22 million pounds!)

Pursuant to a 2003 statute, a defendant can be tried before a single judge if there is a "real and present danger" that jury tampering will occur. However, no evidence of jury tampering has ever been presented in open court or even given to defense lawyers. One of his solicitors said that "The ruling has been made on the basis of secret material which we have never seen, presented by witnesses whose identity – other than their rank in the Metropolitan police – has not been disclosed to us."

According to the Times of London this will be the first non-jury criminal trial in England in the last 400 years!

Disappointing news from the land that gave us the right to a trial by jury.



Thursday, June 18, 2009

Interesting SCOTUS Opinions Released Today!

Quoting the SCOTUS Blog, (http://www.scotusblog.com/wp/), the SCOTUS ruled today, 5-4, "that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence." The case, District Attorney’s Office v. Osborne, and can be found here: http://www.supremecourtus.gov/opinions/08pdf/08-6.pdf

In a second opinion released today, "the Court, dividing 6-3, decided that if a jury finds an individual not guilty on some counts, but can’t agree on the others, prosecutors may not try that individual again on the “hung” counts if they had a common element with those on which the jury acquitted." Yeager v. U.S. Following the lead of the infamous maverick state governor, credit is due to the SCOTUS Blog. The opinion can be retrieved here: http://www.supremecourtus.gov/opinions/08pdf/08-67.pdf

Wednesday, June 17, 2009

Gone for summer but not finished with business...

Today, the Supreme Court and Court of Appeals finished their respective Spring 2009 terms. The Court of Appeals will begin its Fall 2009 term on August 18th, while the Supreme Court will resume on August 19th.

In the interim, there are several outstanding opinions due in notable criminal appeals. A brief highlight of the opinions we can look forward to in the upcoming weeks includes: Valvold v. State, where the Supreme Court will evaluate the retroactivity of Estrada; State v. Turpen, where the Supreme Court will hopefully provide guidance and teeth to Idaho's expungement statute; and State v. Meister, (on review from the Court of Appeals) where the Court will evaluate, among other things, the admissibility of alternate perpetrator evidence.

Monday, June 15, 2009

Lay Witnesses May Testify as to the Identity of Individuals Captured on Photographs/Videotapes

This afternoon, the Court of Appeals released its opinion in State v. Barnes (J. Gratton, joined by J. Lansing and J. Gutierrez). On appeal, Mr. Barnes raised three principal issues: (1) the trial court erred in allowing lay witnesses to testify as to the identity of an individual captured on a videotape, (2) the trial court erred by allowing a witness to testify about out-of-court statements the witness made to police, and (3) the prosecutor committed misconduct by eliciting testimony as to Barnes' guilt and character.

Much of the opinion is consumed with the Court's convoluted analysis of the admissibility of the respective testimony of the lay witnesses' concerning identification of the individual captured on the surveillance videotape. It noted appellate courts have generally held that "in order for lay opinion identification testimony to be admissible, it must be helpful to the jury, which requires that 'there be some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury."

In its analysis, the Court broadly cited various factors, the existence of which indicates that there is "some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury." Briefly, the factors include: the witness' prior familiarity with the defendant's appearance; whether there were changes in the appearance of the defendant at the time of trial; the quality of the photographs. In sum, the Court concluded the opinion of the lay witnesses was rationally based on the perception of the witness, and the testimony was helpful to the jury in the determination of a fact in issue.

Secondly, the Court evaluated the trial court's admission of various out-of-court statements elicited by the State made by the witness to police. Although trial counsel timely objected to the State's first attempt to elicit hearsay from the witness, the Court noted the Defendant failed to request a continuing objection to the line of questioning. Therefore, the Court concluded the issue was not preserved for appeal.

Thirdly, Barnes argued the State committed prosecutorial misconduct by eliciting testimony from the father of the defendant's girlfriend stating he believed Barnes was guilty and that he thought Barnes was a clown. As there was no objection to either question, the Court evaluated both instances for fundamental error. While the Court concluded the questioning constituted prosecutorial misconduct, it avoided the fundamental error analysis, simply concluding the error was harmless.

The full opinion can be found here: http://www.isc.idaho.gov/opinions/barnes%20opinion.pdf

Friday, June 12, 2009

Light Week for Idaho's Appellate Courts

As Dennis travels the french countryside listening to Carla Bruni-Sarkozy while sampling freedom fries and royales with cheese, it appears Idaho's appellate courts have taken opportunity to enjoy their new found freedom. This past week, the Court of Appeals released two published criminal opinions while the Supreme Court went silent.

On June 10, Judge Gratton (joined by J. Lansing and Gutierrez) released the CoA's opinion in State v. Harrison. Mr. Harrison was convicted of enticing children, in violation of 18-1509(1)(b). On appeal, Mr. Harrison argued that "with the intent that the child shall be concealed from public view" modifies all offenses defined by 18-1509(1), not just 18-1509(1)(c). Secondly, Mr. Harrison argued that the statute was void for vagueness

Briefly, the Court held that 18-1509(1) is plain on its face and that the language only modifies the offense defined by 18-1509(1)(c). Secondy, the Court held Harrison had not preserved his "void for vagueness" challenge because there was no adverse ruling below by the trial court. The full opinion can be found at: http://www.isc.idaho.gov/opinions/harrison%20opinion.pdf

Today, Judge Perry (joined by J. Gutierrez and Gratton) released the CoA's lengthy opinion in State v. Rossingnol. Mr. Rossignol raised challenges to various evidentiary rulings made by the trial court during his trial for various sex offenses with his daughter.

First off, the Court addressed Rossignol's argument that the court erred in allowing the jury to hear evidence of his post-arraignment flight. Specifically, he argued his flight was irrelevant and did not demonstrate consciousness of guilt for the instant charges because he also failed to appear at a hearing for separate perjury charges. In response, the CoA held "the existence of alternative reasons for the escape goes to the weight of the evidence and not to its admissibilty." citing State v. Jeffers, 661 P.2d 1105, 1116 (Ariz. 1983).

The Court further noted "evidence need only be of slight relevance to meet the requirements of I.R.E. 401. I question how the Court reconciles its embracement of flight evidence with the Supreme Court's cautionary langauge in State v. Wrenn, 99 Idaho 506, 508 (1978) ("because of the debatable significance of flight as evidence of guilt")...

Secondly, Rossignol challenged numerous pornographic images and incest stories published to the jury. Briefly, the Court held the images were relevant b/c they corroborated the V's testimony, and the stories corroborated the intent elements of the crimes and were indicative of his motive and plan to engage in the alleged acts.

Thirdly, Rossignol argued he was denied the opportunity to fully cross-examine the V's treating psychologist b/c the exception to the psychotherapist-patient privilege eliminates the privilege with respect to allegations of sexual abuse. By analogy, the CoA embraced the SCOID opinion regarding the exception to the marital privilege in State v. Moore, 131 Idaho 814 (1998). Rather than define a bright line rule, the Court concluded the exception is designed to encourage the disclosure of abuse and that any presumed error was harmless...

Rossignol also raised issue with the reasonable doubt instruction provided to the jury, and asserted due process and confrontation clause violations occurred when the Court admitted consistent statements by the V. The full opinion can be reviewed at: http://www.isc.idaho.gov/opinions/Rossignol-opn.pdf

Friday, June 5, 2009

On Vacation But Still In Business

J.D. Hallin has agreed to be the SCOIDBlog guest administrator while I'm on vacation. (Being accidently clever, I'll be gone just as the U.S. Supreme Court enters its end-of-term rush of opinion releases. Good luck with that, J.D.)

If you are a contributor: Please help out the next couple of weeks by posting that article you've been thinking about.

I'll write to you again soon.

Thursday, June 4, 2009


The ID Supreme Court has granted review in State v. Munoz.
(See 3-25 SCOIDBlog: "Unexplained Inconsistent and Irreconcilable Testimony Made Under Oath at Different Proceedings Cannot be Deemed Credible.") This is the case where 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."

Good luck Corey and his attorney Robyn Fyffe.

Tuesday, June 2, 2009

SCOID to Review Cross-X Case

Friend of the Blog E.L. reports that the Supreme Court has granted review in State v. Ruiz, where the COA affirmed even though the district court prohibited the defendant from cross-examining a state witness about the mandatory minimum sentence he avoided by testifying against the defendant.

That's good news. There's no doubt that a full and fair cross-examination of the cooperating co-defendant includes bringing out all the benefits he will receive from the state. Plus, as Klaus Wiebe (pictured above -- wearing the suit!) points out, if we can't cross-x the snitch about his deal it'll take half the fun out of being a defense lawyer.

Monday, June 1, 2009

Last Day to Submit COA Candidate Evaluations

Be sure to submit your COA Judge questionnaires. The deadline for the survey is today, Monday, June 1, 2009, at 5 p.m. MST.

Here's the link: http://www.isc.idaho.gov/surveys_coa.htm

BTW: SCOIDBlog asks you to show your support for Molly Huskey, the State Appellate Public Defender, even though Judge Melanson has gotten support from respected blogger Skelly.

Save the Date: July 17th NBMB Bastille Day Party

All criminal defense lawyers and staffers, their families, friends and fellow-travelers are invited to the Nevin, Benjamin, McKay and Bartlett LLP Fourth Annual Bastille Day Party.

FYI: The Bastille Prison was the hated symbol of the power of the French monarchs, who could imprison people without a trial, for as long as they wished. (Imagine living in a country like that!) On 14 July, 1789, the people of Paris stormed the Bastille, obtaining ammunition and freeing prisoners. (OK- there were only seven prisoners and some gunpowder, but still!) Today, Bastille Day is a celebration of liberty, democracy, and the struggle against governmental oppression.

Friday July 17, 2009 from 4:30 - 8:30.
303 West Bannock St., Boise, Idaho