Friday, July 31, 2009

Search Warrant Judge Must be Informed if the Police Know or Have Reason to Know That the Place to be Searched is a Multiunit Dwelling

No SCOID opinions this week, but the COA issued three opinions. Two of them involve post-conviction petitions, the statute of limitations, and equitable tolling. Those are discussed in Deborah's post below.

In the third case, State v. Reynolds, police officers and emergency personnel responded to a call that a two year old child had died in a house where several people rented separate rooms within what appeared to be a single family home. Police found drug paraphernalia in the room of the parents and "smelled the odor of growing marijuana." In this house, each tenant had a separately keyed room and only shared common areas. The police obtained a warrant without telling the judge that there were separate living quarters. The district court denied Mr. Reynolds's motion to suppress.

The COA said while there is no direct Idaho precedent, "the general rule is that a warrant authorizing the search of a multiunit structure will be invalidated if it does not identify the subunit to be searched with sufficient particularity to preclude a search of other units in the same building occupied by innocent persons. Therefore, if officers know or should know that there are multiple, separate dwelling units, they must exclude from a requested warrant those units that are not under suspicion."

The district court "concluded that the officer did not know, nor should he have known, that the home was in fact a multiunit structure and not a single-family residence." The COA deferred to this finding and affirmed the judgment.

State v. Reynolds,

Two COA Opinions Re Equitable Tolling of the SOL for Post-Conviction Petitions (Whatever You Do, Don't Be Late!)

In Judd v. State,,%20John.pdf, a post-conviction petitioner argued that the district court should have ruled on his motion for appointment of counsel before summarily denying petition. The COA agreed, writing that "a district court presented with a request for appointed counsel in a post-conviction action must address that request before ruling on the substantive issues in the case and errs if it denies a petition on the merits before ruling on the applicant’s request for counsel."

No harm done, however, because the petition was not timely filed. None of the two stated bases for equitable tolling of the statute of limitations (e.g., "where the applicant was incarcerated in an out-of-state facility without legal representation or access to Idaho legal materials" and "where mental disease and/or psychotropic medication rendered the applicant incompetent and prevented him from pursuing earlier challenges to the conviction) applied. Moreover the discovery exception applied in Charbonneau v. State did not apply because Mr. Judd was aware of the facts underlying his claim (ineffective assistance of counsel) within the statute of limitations period. The fact that he didn't know those actions were ineffective until he spoke to another attorney after the one year period had already expired didn't matter. "A discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law."

And in Leer v. State, the COA held that the district court erred in granting Mr. Leer an equitable tolling of the one-year statute of limitations for a post-conviction petition.,%20William.pdf

Prior to the running of the post-conviction period, Mr. Leer filed a pro se motion with the district court seeking appointment of counsel to assist him in filing a petition. The district court granted the motion after the one year statute of limitations expired. So, the petition was filed approximately four months too late, but the district court held an equitable tolling should apply and heard, but then denied the petition.

The COA did not approve of this. First, the Court held that the state could challenge the grant of equitable tolling even though it did not file a cross-appeal because it was seeking, not affirmative relief, but affirmance of the district court's ultimate dismissal of the petition on alternative grounds. Then, the Court held that Mr. Leer's "well-crafted" motion for counsel and affidavit of indigency demonstrated that he could have filed a timely petition had he so wished even if he did need counsel to help him litigate the petition. Given he had shown no inability to file a timely petition, the grant of equitable tolling was wrong.

Tuesday, July 28, 2009

Comments SNAFU

My apologies to everyone who tried to post comments over the last couple of weeks. I mistakenly set the blog so the administrator was required to approve comments before they were posted. Then I blithely ignored the notices that there were comments which needed to be moderated. As a result four comments were never posted.

I think I've fixed my mistake. Please know that SCOIDBlog is open to anyone who wants to comment. No prior approval needed. Also, if you want to be a contributor and post articles, just let me know and I'll set you up. I'd like to have more contributors and to see SCOIDBlog become a voice for the Idaho criminal defense bar.

Thanks for reading and commenting. And, again, my sincere apologies to those who tried to comment but couldn't.

From Time Out to Hard Time

The University of Texas at Austin has just published a new study about young children in adult court. It documents current conditions and makes suggestions for a more humane future. (I think -- I have just skimmed so far, not read in depth.) Worth a look for anyone representing young ones.

Tort Claim Filed Against Boise Police

Gerald Amidon has filed a Tort Claim against the Boise Police Department and Officers Cory Bammert, Deidra Harr, Guy McKean; Mark Abercrombi and "Officer #10." It is not clear which of the named officers is "Officer #3" as the Tort Claim only alleges that Mr. Amidon was tased and then threatened by "one of the officers" or "an unknown officer." However, Officer Bammert's police report is attached to the Tort Claim. He states that "Officer McKean advised he was drive stunning Amidor with the taser." Officer Bammert's report also states that he and Sgt. Stevens interviewed Mr. Amidon and that both he and the sergeant audio recorded the interview. (This gives us a clue about who Officer #10 might be.)

The Tort Claim and attachments can be read here:

Monday, July 27, 2009

Anus, Testicles and Penis?

"New Taser stun gun can shock 3 at a time."

It's a real time-saver for the Boise Police Department.

Thursday, July 23, 2009

Round 3?: State Intends to Seek Rehearing Regarding Meister Remand

According to the Associated Press, Latah County Prosecuting Attorney William Thompson has indicated the State intends to file a Petition for Rehearing in State v. Meister. This will be round 3 in appellate process.

The full story can be found here:

Wednesday, July 22, 2009

Who's Officer #3?

The Boise Community Ombudsman found that a Boise Police Officer (identified as “Officer #3") engaged in conduct unbecoming an officer when he Tasered a handcuffed suspect in the buttocks, leaving two circular burn marks, and then asked if the suspect could feel the officer’s “Taser up his ass.” Officer #3 then threatened to use the Taser on the suspect’s genitals: “Now, do you feel this in your balls? . . . . Now., I’m going to tase your balls if you move again.”

Another officer (Officer #10) was found to have acted improperly when he erased the audio recording of a jail interview of the suspect. The Officer told investigators that he did not record the interview because another officer was recording it and that he erased his tape because it been left on accidentally and had hours of "dead air." Forensic analysis of the tape showed that the officer actually recorded the entire interview.

Unsurprisingly, the Ada County Prosecutor found no reason to charge Officer #3 with battery or Officer #10 with destruction of evidence.

For the Idaho Statesman article, "Boise ombudsman says police officer used excessive force in an arrest this year," click here:

Someone out there knows the identity of Officers #3 and #10. Give it up.

Bradbury's TRO Motion Denied

Judge Bradbury's motion for a TRO was denied by Judge Winmill. So far there is just a minute note in the federal docket, so we don't know the basis of the ruling yet. Here's a newspaper account of yesterday's hearing.

Oral argument on the Judge's appeal from the Judicial Council proceedings will be heard before the Supreme Court today at 3:00. It will interesting to see whether the Chief Justice sits on the case.

Tuesday, July 21, 2009

Update: Wiebe and Fouser v. State et al

The hearing on W&F's motion for preliminary injunction and the State's motion to dismiss set for last Friday was vacated and reset for July 24. (Rumor has it that the hearing was vacated because the judge ran into a cow on the way to court!)

Update: Bradbury v. SCOID

United States District Judge B. Lynn Winmill will hear Judge Bradbury's Motion for Preliminary Injunction today at 4:00.

"Pro Se" from "This American Life"

Here's a link to an episode of "This American Life," a public radio program. It's mostly about people representing themselves in court. To quote from the teaser:

"It's tempting to act as your own lawyer, to argue your own cause. Who better to defend your position than you? This week, stories of pro se defenses: some brilliant, some disastrous. A man fakes his way into an insane asylum by pretending to be crazy, and then can't argue his way back out. And another man uses vigilante justice to defend his sister's honor, using a strategy he didn't know he had in him."

It's worth a listen:

Monday, July 20, 2009

SCOID Sued in Federal Court

As has been reported, Second District Judge John Bradbury has sued the Justices of the Idaho Supreme Court alleging a violation of his right to due process. The suit, Bradbury v. Eismann, was filed in Federal District Court, and seeks injunctive and declaratory relief.

A quick read of the complaint reveals that the lawsuit began with a dispute over whether Judge Bradbury "actually resides" in Idaho County as required by statute. The Judical Council, chaired by Chief Justice Eismann, concluded that Judge Bradbury did not and recommended that he be suspended from serving as a District Judge until he did so.

The Judge sought review of the Judical Council's recommendations before the Supreme Court. Oral argument is set for this Wednesday, July 22. Justice Horton (who very narrowly defeated Judge Bradbury in the election for the Supreme Court position) recused himself, but, according to the complaint, the Chief Justice did not. Judge Bradbury also alleges that the Supreme Court has refused to require the Judical Council to produce the evidence and explain the legal standards it used in making its recommendation.

The lawsuit seeks a declaration that the Chief Justice's participation in the appeal violates due process and that the other Justices are also disqualified because they have considered pre-hearing matters in the case with the participation of the Chief Justice. The Judge also seeks a declaration that he is "entitled to disclosure of witnesses, charging facts . . . and related documents necessary to enable [him] to mount a defense to the charges against him" and that the term "actually resides" is unconstitutionally vague. Finally, the Judge seeks an injunction preventing the Justices from taking further action on the appeal.

No hearings on the case have been set.

Happy Birthday Larry

Will you still solicit me,
covertly and illicitly,
When I'm sixty-four?

Friday, July 17, 2009

Defendant Must Show Juror Misconduct Resulted in Prejudice at New Trial Motion

The COA affirmed the denial of a new trial motion today. It first stated that a juror's inability to hear trial testimony may not be "juror misconduct" under I.C. 19-2406(1), the statute governing new trial motions. Even assuming it is, the defendant's motion was correctly denied because he did not make a showing that the misconduct prevented a "fair and due consideration of the case." The COA noted that "[a]ll of the jurors [who testified said] that they could hear every question asked of a witness and all of the witnesses' answers."

State v. Calvin Strange,,%20Calvin.pdf

From "The Devil's Dictionary" by Ambrose Bierce (1905)

Appeal, n. In law, to put the dice into the box for another throw.

Lawful, adj. Compatible with the will of a judge having jurisdiction.

Lawyer, n. One skilled in circumvention of the law.

Thursday, July 16, 2009

New SCOID Civil Case Supports Wiebe and Fouser Lawsuit?

As regular SCOIDBlog readers know, Wiebe and Fouser have sued Canyon County for terminating its public defender contract. One of the arguments is that Canyon County may not invoke a 90-day termination clause because I.C. Section 19-860(a)(1) states that the public defender's term of office "may not be less than two (2) years." A hearing on W&F's motion for a preliminary injunction is set for tomorrow.

Happily, it seems that W&F received some support from the Idaho Supreme Court today. The Court, in Boudreau v. City of Wendell,, held that a statutory provision making city clerks "at will" employees could not be superseded by termination provisions found in the City of Wendell personnel manual. The Court wrote that "Idaho local governments cannot override statutes enacted by the legislature. [Citations omitted.] Thus, once the legislature determined that a municipal appointive office is at-will . . . the municipality could not alter that status by adopting a Personnel Manual."

That rule should apply to the Canyon County Public Defender Contract too. Since the statute requires the PD to get at least a two-year term, any contract provision permitting the termination of the contract before two years has elapsed must be void. Canyon County can't override the two-year term mandated by the Legislature. Right?

Tuesday, July 14, 2009

Homelessness and Sex Offender Registration

For years in Ada County it has been illegal to be a homeless sex offender. A sheriff's deputy who worked the registry desk told me a few years ago that they tell offenders they must register a physical residence. Offenders who show up to register and say that they are homeless are turned away and told to return with an address. This has been going on so long in Ada County that it's become common knowledge among sex offenders. And those that are homeless, and without resources, don't even bother to report to the registry.

The temporary solution used to be the Boise Rescue Mission. But it has since relocated to within an unacceptable distance of a charter school and no longer accepts sex offenders.

Other states have dealt with the issue of homeless sex offenders and enacted "homelessness" provisions. Washington state held that, under the then exisiting statute, homeless people had no residence to report since they lacked a fixed, regular, nighttime address. See State v. Pickett, 975 P.2d 584 (Wash.App. 1999). Maryland addressed the same issue in Jeandell v. State of Maryland, 910 A.2d 1141 (MD 2006), and Twine v. State of Maryland, 910 A.2d 1132 (MD 2006). The gist of these cases was that a truly homeless person did not come within the purview of the statute as it existed at that time because the statute required registration when one changed residence. And getting thrown out on the street is not changing residence. I believe that both states went on to amend their statutes to provide for homeless registration.

Idaho Code Section 18-8307(1)(f) states that a sex offender must register "address or physical description of current residence." Throughout the remainder of the statute "residence" and "address" are used interchangeably. I have always felt that this language would permit an offender to give a "location" where they were at until they could find a fixed residence. I have been told in the past in other counties that this was the practice. Those counties did not read the statute to require a physical residence.

Nevertheless, Ada County has not shared this view. Many failure to register cases have been brought and many are in prison out of this county because the prosecutor's office rarely makes anything less than a prison offer on these cases.

The legislature amended Idaho Code Section 18-8308 this last legislative session. The newly enacted 18-8308(3) reads "A sexual offender who does not provide a physical residence address at the time of registration shall report, in person, once every seven (7) days to the sheriff of the county in which he resides. Each time the offender reports to the sheriff, he shall complete a form provided by the department that includes the offender’s name, date of birth, social security number and a detailed description of the location where he is residing. The sheriff shall visit the described location at least once each month to verify the location of the offender." This statute went into effect on July 1, 2009.

I read this statute as an explanation for what to do when an offender registers, but does not provide a physical residence address. Something I have felt the statute provided for all along. But I'm sure that Ada County will consider this "new" law. Nevertheless it will take some time to undo the standard practice in this area. Sex offenders locally will still likely run from the registry in the event of homelessness.

Happy Bastille Day from SCOIDBlog

IPAA's 2009 Legislative Update

I was too lazy to do a Legislative Update this year, especially given the lack of good news. But, I found one prepared by the lobbyist for the Idaho Prosecuting Attorneys Association. You can find it on the IPAA's website.

Another interesting thing there is the IPAA's salary survey. Did you know that the Ada County Prosecutor makes more than the Chief Justice of the Idaho Supreme Court? Did you know some Ada County Deputy Prosecutors make more? That's shameful.

Monday, July 13, 2009

Still More Good News

Bannock County Deputy Public Defender David Martinez is one of the four finalists for the Sixth Judicial District Judgeship.


Friday, July 10, 2009

More Good News

Here is the short list for the open Court of Appeals position:

Kent Hawkins
Michael Henderson
Judge John Melanson and (insert wav file of drum roll and cymbal crash here)
Molly Huskey!

Good News

The Supreme Court has granted review in State v. Windom. This is the case where the COA affirmed an LWOP sentence for a 16 year old notwithstanding substantial mitigating factors. (See the April 10th SCOIDBlog posting on the case for more details.)

Thursday, July 9, 2009

Has the Raised Middle Finger Replaced the Eagle as our National Bird?

According to the Pittsburgh Tribune Press: "A federal judge this week ruled that a Regent Square man did not violate the law when he flipped off a motorist and a Pittsburgh police officer, who cited him for disorderly conduct."

The court wrote that: "The United States Supreme Court has long recognized that non-verbal gestures and symbols may be entitled to First Amendment protection . . . Moreover, several courts, including federal and state courts in Pennsylvania, have found that the expressive use of the middle finger is protected speech under the First Amendment."

Are you listening Patrick Suiter?

SCOIDBlog, of course, always maintains the very highest level of propriety and does not approve of such vulgarity. Nevertheless, to paraphrase Voltaire: While I do not agree with your decision to flip it, I'll defend to reasonable lengths your right to flip. (OT: "Flip It" would be an excellent name for a Michael Jackson tribute song especially since "We are the Weird" has already been taken.)

Wednesday, July 8, 2009

Another Murder Conviction Vacated (Corrected)

Today, the SCOID released its second opinion in two days vacating a murder conviction and remanding for a new trial. It is interesting to note that the divided opinion was again written by Justice Warren Jones.

In Pina, the defendant was charged under Idaho's Felony Murder Rule for a shooting death caused by a co-defendant. Initially, Pina and the victim became involved in a dispute outside. Eventually, the altercation moved inside a house where the co-defendant was asleep.

At some point when Pina and the victim were quarreling inside, the co-defendant became involved in the altercation, seized a gun from the defendant, and shot the victim out of panic. Pina was subsequently charged under Idaho's Felony Murder Rule, with the predicate felony being the kidnapping or attempted kidnapping of the victim.

At trial, Pina's counsel moved pursuant to Rule 29, I.C.R., arguing that the State had failed to present any evidence indicating that the death resulted from any type of common plan or design between Pina and the co-defendant. The State acknowledged that the co-defendant was not in on the plan (the kidnapping), but asserted once the co-defendant "was activated . . . he was acting with Mr. Pina . . ."

The trial court denied Pina's motion, adopting the "stream-of-events" theory of felony murder. During the jury instruction conference, counsel for Pina again renewed argument on the insufficient evidence of agency and requested that the jury be instructed that Pina and the co-defendant must have acted in concert with one another for Pina to be found guilty of felony murder. Despite counsel's timely request, the court declined to give the requested instructions on agency.

On appeal, the Supreme Court analyzed whether Idaho's Felony Murder Rule follows the agency or proximate cause theory. Under the agency theory, the rule is applied only to actors who are acting in concert in furtherance of a common plan or scheme to hold each liable for a death that occurs during the preparation of the felony. Under the proximate cause theory (the minority theory), each actor is held responsible for the death of a person caused during the perpetration of a felony on the basis of reasonable forseeability that the acts committed might reasonably be expected to result in death.

In its analysis, the sharply divided Court disagreed in its analysis and result. Briefly, Justice W. Jones, joined by J. Kidwell and J. J. Jones agreed that jury instructions were defective under both theories. As a result, the narrow majority joining in result only, agreed that Mr. Pina's conviction must be vacated and remanded for a new trial. Separately, J. Burdick, joined by J. J. Jones and J. Horton, held that Idaho follows the agency theory of the felony murder rule.

Another good job by the folks at the SAPD's office and Mr. Pina's trial counsel...

The opinion can be found here:

Tuesday, July 7, 2009

Murder Conviction Vacated

The Supreme Court has vacated the conviction in a first-degree murder case.

At trial, the district court excluded evidence that another person committed the murder. In doing so, it relied upon State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966). This evidence included confessions from the alternate perpetrator.

The Supreme Court first held that the Rules of Evidence in general (and IRE 403 in particular) are the controlling authority for admissibility of alternative perpetrator evidence. In doing so, it found that the adoption of the rules of evidence implicitly overruled Larsen. The Court then vacated the conviction because the district court did not apply the correct legal standard to the question of admissibility.

The Court went on to note that the confessions must meet the standards of IRE 804(b)(3) (statements against interest) in order to be admissible. That rule requires that "corroborating circumstances clearly indicate the trustworthiness of of the statement." The Court, looking to State v. LaGrand, 734 P.3d 563 (Ariz. 1987), held that the district court's determination of whether the corroboration requirement has been met should be limited to asking "whether evidence in the record corroborating and contradicting the declarant's statement would permit a reasonable person to beleive that the statement could be true." It also set forth several factors for the court to consider:

"Those factors are: (1) whether the declarant is unavailable; (2) whether the statement is against the declarant‟s interest; (3) whether corroborating circumstances exist which clearly indicate the trustworthiness of the exculpatory statement, taking into account contradictory evidence, the relationship between the declarant and the listener, and the relationship between the declarant and the defendant; (4) whether the declarant has issued the statement multiple times; (5) whether a significant amount of time has passed between the incident and the statement; (6) whether the declarant will benefit from making the statement; and (7) whether the psychological and physical surroundings could affect the statement."

State v. Meister,

Congratulations to Eric Lehtinen of the SAPD!

Update: Eric informs me that credit goes to Tom Whitney who was trial counsel and "did a fantastic job."

Monday, July 6, 2009

Uncle Sam Says RSVP for the Bastille Day Party

"Now that my birthday celebration is over, it's time to turn your attention to the Fourth Annual Bastille Day Party. It's always great fun and they'll have free food and drink. So, for the love of Lafayette, take a moment today and let 'em know if you're planning to attend."

Thanks Uncle Sam. Just click on the link to the right. There's no need to send regrets, just let us know if you're coming so we know how much food, wine and beer to buy, i.e., a lot or really a lot.

Friday July 17 from 4:30 - 8:30 at 303 W. Bannock Street, Boise.

Click here for a map:

Sunday, July 5, 2009

SCOID Week in Review: June 29-July 3

The Idaho Supreme Court did not release any opinions last week. The Court of Appeals, however, issued three.

In State v. Larry Hoak,,%20Larry.pdf, the COA affirmed a conviction for first-degree stalking. The trial court allowed the admission of prior convictions for violating no contact orders as well as evidence of threats of physical violence made by Hoak against the victim (including threats to cut off her legs, decapitate her, blow up and/or burn down her house with her inside) and a alleged prior rape! (A conviction for domestic battery was let in during cross-examination of the defendant.) But it also gave limiting instructions. The Court of Appeals found no abuse of discretion in the ruling because the evidence was relevant to show the stalking was done "maliciously" and to show the stalking would cause a reasonable person substantial emotional distress.

In State v. Sheldon Stone,, the appellant asked: "How much evidence is needed to corroborate the testimony of an accomplice as required by I.C. Section 19-2117?" Answer: Not too damn much. In fact, damned little.

Finally, the COA held that a police officer may testify at a DUI trial to his/her opinion that the defendant was under the influence of alcohol and too impaired to operate a motor vehicle. (IRE 704 allows testimony in the form of an opinion even if it embraces an ultimate issue to be decided by the trier of fact. The appellant relied on case law suggesting the opposite when the testimony invades the province of the jury.) The fact that the defense appears to be "I was not driving" instead of "I was not impaired" may have affected the COA's decision in this case. Unlike State v. Hester, 118 Idaho 688 (1988), the state's witness here did not testify that the defendant was the one who committed the offense.

Wednesday, July 1, 2009

Is the Liberal Ninth Circuit a Myth?

This is the time of the year when we often hear conservative Idaho politicians crow about how the Supreme Court has put the liberal Ninth Circuit in its place again by reversing so many of its opinions and that it's time to break up the circuit.

Putting aside the obvious problem with that logic, i.e., breaking up the circuit will not change the composition of the court and would not make a difference in any individual votes, and the unproven premise of the argument, i.e., that all the "liberal" judges are from the part of the circuit Idaho wouldn't be in, an even more basic question remains: Is the Ninth Circuit more liberal than other circuits?

Let's look at the statistics from this year.* The "break up the Ninth Circuit" crowd assumes the Supreme Court always makes "conservative" rulings and argues that the high number of Ninth Circuit reversals means that it is too liberal. But if the number of Supreme Court reversals is a true test of liberalism, the Ninth Circuit is not more liberal than other courts, as there is no statistically significant difference between the Ninth Circuit's reversal rate (81.3%) and the overall reversal rate (75.9%). By way of comparison, state courts were reversed at a 73.3% rate. Does this mean the state courts are more liberal than the U.S. Supreme Court? (The weakness of this argument is further demonstrated by the fact that some state courts were reversed because they did not provide sufficient rights under the federal constitution as in Melendez-Diaz.)

In fact the argument leads to the opposite conclusion. Seven circuits had all of their decisions reversed. The Fourth, Sixth, Seventh, Eighth and Tenth Circuits, the DC Circuit and the Federal Circuit had a combined 23/23 cases reversed. This is ten more cases than the Ninth Circuit had reversed. So, is the Ninth Circuit one of the more conservative circuits because its reversal rate was lower?

There might be some good reasons to break up the Ninth Circuit, but this tired shibboleth from conservative groups ain't one of them.

* These numbers are taken from the "Akin Gump Supreme Court Summary Memo" linked on SCOTUSblog. SCOIDBlog sincerely thanks the very smart people at SCOTUSblog for their excellent work and for not getting mad at us for parodying their name. To see the entire memo, click here: