Monday, August 31, 2009

Seeking Defects in Law?

Here's a link to a Supreme Court press release entitled "Chief Justice Eismann Requests Defects in Law." My first reaction was that we have enough already. And what's the rush? The Legislature's back in Boise come January.

Upon reading, however, it appears that the Chief Justice wants our trial judges and court administrators to report any existing laws which contain defects or omissions. The Supreme Court has a constitutional obligation to report such to the Governor who then passes on the information to the Legislature.

So, if you have any defects or omissions you'd like to see addressed pass them on to your local trial judge. One thing that comes to mind is that the statutory provisions for withheld judgments need to be made intelligible. For example, how can a judgment be deemed "withheld" if the Court still considers it to be a conviction? (See U.S. v. Sharp, 145 Idaho 403, 179 P.3d 1059 (2008).) I think it's clear that the Legislature intended that a withheld judgment not be a conviction unless the defendant failed to comply at all times with the conditions of probation and the law should be amended to abrogate Sharp.

To read the press release, click here:

Friday, August 28, 2009

"Expungement" of Records Can Be Effected Though ICAR 32(i)

Gary Turpen was acquitted by a jury of a misdemeanor charge. He later asked the magistrate court to expunge the records reflecting "the arrest, filing and acquittal by jury." The magistrate court denied the motion and the district court affirmed.

On appeal the Supreme Court first stated that expungement does not mean the actual destruction of records; "[t]hus when we refer to "expungement" we do so in the narrower sense of 'expungement of record,' i.e., "the '[p]rocess by which [a] record of criminal conviction is destroyed or sealed . . . .' "

It then held it would not reach the question of whether the courts had inherent power to order expungement "because there is currently a court rule in place that grants the trial courts the authority to grant relief of the type that Turpen seeks. That rule is I.C.A.R. 32(i)," which "authorizes the trial court to seal or redact court records on a case-by-case basis."

"Before entering an order redacting or sealing records, the court must make one or more of the following determinations in writing:

(1) That the documents or materials contain highly intimate facts or statements, the publication of which would be highly objectionable to a reasonable person, or
(2) That the documents or materials contain facts or statements that the court finds might be libelous, or
(3) That the documents or materials contain facts or statements, the dissemination or publication of which would reasonably result in economic or financial loss or harm to a person having an interest in the documents or materials, or compromise the security of personnel, records or public property of or used by the judicial department, or
(4) That the documents or materials contain facts or statements that might threaten or endanger the life or safety of individuals."

The case was remanded for further proceedings.

State v. Turpen,

Wednesday, August 26, 2009

Payette County Prosecutor Selection

Payette Co. Prosecutor Brian Lee is going to replace Magistrate Judge Dillon, so the Payette County Prosecutor position is being filled by appointment. Three candidates were interviewed: 1) Virginia Bond, 2) Matt Faulk, and 3) Ann Marie Kelso. The Payette County Commissioners make the final decision. If you or anyone else you know might want to give input the address is:

Payette County Commissioners
Larry Church
Mark Shigeta
Rudy Endrikat
1130 3rd Ave N.
Room 104
Payette, ID 83661

The fax number for letters is 642-6011

A SCOIDBlog reader reports that "my experience is that Ann Marie is diligent, intelligent and easy to work with." That's my experience too.

Forensic Report Reaction

Here's a link to an NPR story about the reaction to the National Academy of Science report of the state of forensic science. According to the story:

"There are some steps everyone appears to agree on, according to [Scott] Burns [executive director of the National District Attorneys Association], such as accreditation of all public and private labs, certification of forensic analysts and scientists and universal standards for certain forensic techniques."

"Everyone also seems to agree that some areas will need further research," for example, shaken baby syndrome which has led to many convictions of murder "on the theory that a certain type of internal bleeding is almost always caused by shaking a baby."

"'We have respected people on both sides of the medical profession speaking very loudly and now with greater and greater vitriol as to whether that theory is legitimate,' Thomas Bohan of the American Academy of Forensic Science says. 'We've got to have somebody like the National Academy of Sciences look at all of the studies that are put forth as validating that theory — and see whether they're valid.'"

To read the transcript or listen to the story:

Tuesday, August 25, 2009

Further Thoughts: Estrada Retroactivity

The dicta in Vavold v. State (issued 8-21-09) that Estrada is not retroactive does not end the debate over the effect of the Estrada case.
First, of course, it's dicta. And, as is often the case with dicta, it turns out not to be correct or correct in all circumstances.
Second, it isn't clear, to me at least, that Estrada is merely the application of previously established law. The Estrada Court does not mention State v. Curless, 137 Idaho 138, 145, 44 P.3d 1193, 1200 (Ct. App. 2002), where the Court of Appeals held that the psychosexual evaluation was not a critical stage under the Sixth Amendment. So until Estrada overruled Curless sub silentio, a petitioner could not have known there was a Sixth Amendment claim even though Estrada relies upon older cases to reach that conclusion.
This wrinkle may be resolved in Kriebel v. State which is being argued before the COA today. That case also presents the question of whether the statute of limitations should have been equitably tolled.

Deceptive DNA...

According to the latest issue of TIME Magazine (Aug. 31, 2009): "Making one person's blood and saliva appear to have been taken from someone else is so simple, Israeli scientists found, that a biology student could do it. In a startling experiment, the researchers faked DNA using multiple techniques. In one, they replaced the DNA in a blood sample with that of another person, collected from hair or saliva. In another, they drew on DNA profiles in law-enforcement databases to construct a sample without obtaining any real DNA from a person. Their findings may undercut the viability of genetic evidence in the courtroom.",9171,1917723,00.html

New American Chemical Society Study Reconfirms Most US Currency Tainted by Cocaine

A new study conducted by the American Chemical Society has determined that up to 90% of U.S. paper money contains traces of cocaine. The new figures represent a significant jump over that reported by previous studies. A press release from the ACS can be found here:

Monday, August 24, 2009

Dicta: "Estrada did not announce a new rule of law entitled to retroactive effect."

The case in which we anticipated a ruling on whether Estrada v. State should be given retroactive effect was issued on Friday. The Court, however, affirmed the dismissal on an alternative ground, i.e., that the petition was untimely.

Here's the interesting part: "Finally . . . we note, admittedly by way of dicta, that we agree with the district court's conclusion that Estrada did not announce a new rule of law" as the holding in Estrada was compelled by prior decisions.

Vavold v. State,

On a related note, Kris Estrada was resentenced on Friday. His fixed time was reduced from 25 years to 15, but he received a consecutive four year term for a battery on a police officer charge he picked up in the Twin Falls County Jail while awaiting resentencing.

Thursday, August 20, 2009

Defense Lawyer Said to Have Foiled Perjury for Pay Plot

Twin Falls defense attorney Lynn Dunlap has come up with a clever method for getting impeachment evidence on the state’s witnesses: Get them arrested for attempting to sell their testimony.

Here's the short version: Dunlap’s client is charged with aiding robbery, aiding aggravated battery and grand theft. Robert Barton is the alleged victim. Barton and Kimberly Pena-Souza are witnesses in the case. Barton, however, allegedly made contact with Dunlap and offered to change his testimony.

Dunlap alerted the prosecutor’s office and then arranged, under the direction of the police, a meeting with Barton. A video camera and audio recorder were set up in Dunlap's office. At the meeting, Mr. Barton is alleged to have offered to change is his testimony for $15,000.

Pena-Souza is charged with soliciting $5,000 for herself.

According to the Twin Falls Times-News:

"Dunlap promised to pay in full after their ‘successful testimony’ though Barton on Monday accepted $1,000 from Dunlap and was arrested at Dunlap's office with the cash in hand, according to court records. Pena-Souza was also arrested Monday on her way to pick up her down-payment, and later admitted to detectives she expected a total of $5,000, according to court records."

Read the Times-News story at:

Kudos to Lynn Dunlap for coming up with the most creative way to get impeachment evidence on the state's witnesses ever. But, hasn't anyone seen Francis Ford Coppola's classic movie: The Conversation? (Starring Gene Hackman, photoillustrated above.) Always go outside and keep moving when you discuss bad business.


Fifth District Judge John Melanson has been selected for the open Court of Appeals position.

Tuesday, August 18, 2009

Not Enough Time or Money to Defend Detroit's Poor

"Groups of lawyers and advocates have filed lawsuits in states from New York to Florida to Arizona charging that low-income people can't get a fair trial. Public defenders in Kansas and Minnesota are refusing cases outright.

In Michigan, the system has been broken for decades. Detroit public defenders face abysmal pay, unmanageable caseloads and flimsy oversight."

Listen to this story from All Things Considered on National Public Radio. It really illustrates how high caseloads affect lawyers who have good hearts, but no time or resources to do the job. The lawyer featured in the story doesn't get paid for telephone calls or letters to his clients and is only paid for one jail visit. So he has practically no communication with his in-custody clients. To see how this guy deals with and talks about his clients is shocking but then you wonder how anyone can keep their humanity in that system.

It was a good reminder to me that I work for my clients, not a system, and I owe my clients time and respect and sincere concern.

Monday, August 17, 2009

Chief Justice Recuses Self From Bradbury Case

Chief Justice Eismann has recused himself in the Judge Bradbury case (In the Matter of the Inquiry Concerning District Court Judge John H. Bradbury, No. 36175). The Chief Justice presided over oral arguments on July 22, but recently issued an order recusing himself.

According to the Spokesman Review, the Chief Justice wrote:

“ 'The only reason for obtaining that information [i.e., who filed the Judicial Complaint against Judge Bradbury] would be retaliation,' the chief justice wrote in his recusal order. That, he wrote, 'could have a chilling effect on others who may desire to report possible violations of the law by members of the judiciary.' So Eismann essentially said he recused himself to remove the basis for the federal lawsuit. Eismann wouldn’t comment on the pending case and said his recusal notice speaks for itself.

Bradbury was incensed by Eismann’s retaliation allegation and said he’s never sought retribution against anyone. 'By asserting the pretext of retribution, Justice Eismann also betrays a profound personal animus against me,' Bradbury declared."

August 16, 2009, Spokesman Review, "Case points out judge’s dual role," by Betsy Z. Russell:

I think the Chief Justice made the right call here. It certainly improves the Court's position in the pending federal lawsuit, although there is more to it than the disclosure issue (See "SCOID Sued in Federal Court," from July 20). Also, it just doesn't look right to the public to have the Chair of the Judicial Council also participate --indeed preside -- over the appeal of a Judicial Council decision, irrespective of what role he had in the proceedings below.

Thursday, August 13, 2009

From Prosecutor To Public Defender?

Elizabeth Allen is a former Nampa City Prosecutor whose job was eliminated when the Canyon County Prosecutor took over the prosecutions for the city. But then:

"I get a call on Tuesday at 11:00, the day the public defenders walked out, from the new law firm taking over the public defender contract. "Can you be in court at Nampa and cover the afternoon?" I was asked. "Sure" - not like I had anything else much to do. I don't know why they called me, a prosecutor, and didn't have a lot of the old public defenders just come on and work for the new firm (again...a political issue?). So this last week I have been thrown in as a public defender. It has been very weird to switch sides and represent defendants. Although I miss the power of the prosecutor, I do like being able to work with people and help them with their cases. However, it sucks to be taking the jobs of those awesome public defenders who I have loved to work with and were amazing at their jobs."

There's more to her story and it's worth reading. Thanks to my friend Skelly for bringing this Blog to my attention:

Also: Elizabeth is expecting and there is a baby name poll on her site. "Benjamin" is one of the finalists, but I favor "Atticus."

Wednesday, August 12, 2009

Happy Birthday to Me?

In celebration (?), here's an excerpt from The Love Song of J. Alfred Prufrock, by T.S. Eliot (1917):

I grow old … I grow old …
I shall wear the bottoms of my trousers rolled.

Shall I part my hair behind?
Do I dare to eat a peach?
I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each.

I do not think they will sing to me.

And now an explanation of that poem from The Long Goodbye, by Raymond Chandler (1953):

" 'I grow old... I grow old... I shall wear the bottoms of my trousers rolled.' What does that mean, Mr. Marlowe?"

"Not a bloody thing. It just sounds good."

He smiled. "That is from the `Love Song of J. Alfred Prufrock.`

Here's another one. `In the room women come and go/Talking of Michelangelo.' Does that suggest anything to you, sir?"

"Yeah -- it suggests to me that the guy didn't know very much about women."

"My sentiments exactly, sir. Nonetheless I admire T. S. Eliot very much."

"Did you say, 'nonetheless'?"

Tuesday, August 11, 2009


1. Nice work, if you can get it: Here's a link to an article about the federal magistrate judge opening at Yosemite National Park. Visiting judges from around the county have been brought in until the position is filled. Idaho Senior Magistrate Judge Larry Boyle (pictured with his wife, Beverly) did a two week stint and his experience is featured. Judge Boyle is quoted as saying that the park is the Garden of Eden, “[b]ut the law is the same as in San Francisco or Boise or Manhattan.”

True, but you don't get as many Interstate Transport of Bobcat for Immoral Purposes cases in Manhattan.

2. State v. Hanington decided: In case you've been wondering about the appropriate standard of appellate review of a sentence which was imposed after a probation revocation, rest easy. The COA has finally told us: "When we review a sentence that is ordered into execution following a period of probation, we will examine the entire record encompassing events before and after the original judgment."
And then, at least in my experience, the sentence will be affirmed (like in Mr. Hanington's case).
3. New Link: John Wesley Hall has a nice website on Fourth Amendment Law which updates his Search and Seizure Treatise. I've also added it to the list of Useful Sites.

Friday, August 7, 2009

Three of the Norfork Four Pardoned

For those who attended the Idaho Federal Defender's annual conference and heard New York Times reporter Alan Berlow speak about his investigation into "What Happened in Norfork," here's an update.

According to the NYT, Virginia Gov. Tim Kaine, citing "grave doubts" about their guilt, ordered the release of three of the sailors who were convicted in that 1997 murder and rape case. "The three, who with another sailor were known as the Norfork Four, were charged in the rape and murder of the wife of a fellow sailor. But after someone else confessed to the crime and the men remained in prison, their plight attracted a long list of supporters, including former judges, agents of the Federal Bureau of Investigation and even some of the jurors in their cases." The pardon released the sailors from custody, but didn't expunge the convictions. The fourth sailor, who was not charged with murder, was not pardoned as he had already been released after serving eight and a half years.

Today's New York Times Article is at

Alan Berlow's 2007 story is here:

Be sure to attend this year's "Western All Stars" Conference, August 28-29, 2009 at the Grove Hotel in Boise. It's always a great CLE and, if that's not enough for you, IACDL hosts a cocktail party after the Friday session. You can get a registration form here:

Thursday, August 6, 2009

On Deck: SCOID August Arguments

The Supreme Court will hear oral argument in six criminal law cases this month.

August 19: Paul Rhoades v. State is a post-conviction petition in a capital case where the district court denied petitioner's motion to amend his post-conviction petition with claims of prosecutorial misconduct.

August 21: State v. Michael Clements is a state's appeal from a district court order correcting an illegal sentence. It contends that the court did not have jurisdiction to examine the underlying facts of the case in order to determine whether the weapons enhancements originally imposed were proper.

August 24: Gene Stuart et al. v. State, is a consolidated appeal from six death-sentenced petitioners (Paul Rhoades, Randy McKinney, Gerry Pizzuto, David Card and James Hairston join Gene Stuart). These cases, upon remand from the USSCt present the question of whether Ring v. Arizona (jury must find all facts which made defendant eligible for death sentence) retroactively applies to their cases under Idaho state law even though it does not in federal habeas corpus pursuant to Schriro v. Summerlin.

August 26: State v. Jerome Korn is an appeal from a conviction for possession of wild or exotic animals and possession of deleterious exotic animals without a permit. As you might imagine, the case has an interesting set of facts, but the issue on appeal seems to be whether copies of orders from the bankruptcy court were admissible at trial even though they were not certified copies.

August 28: State v. Dale Shackelford presents several trial issues, including questions of hearsay, jury instructions on burden of proof and the unanimity requirement, a prosecutorial misconduct claim under Brady v. Maryland, and the right to counsel. In addition, the state has cross-appealed the district court's ruling setting aside the death sentence pursuant to Ring v. Arizona.

Lampien v. State concerns the scope of victim impact statements. In exchange for a plea to a Harboring a Felon, the state agreed to recommend probation and to not oppose a withheld judgment. At sentencing three police officers, who had been injured at a later time by Ms. Lampien's husband, i.e., the felon she was harboring, testified that she should go to prison. The court sentenced above the state's recommendation and imposed five years with three fixed.

SCOIDBlog will report on the opinions as soon as they are issued.

Wednesday, August 5, 2009

Why Your Mom Told You to Not Assume

From the Idaho Press Tribune:

"County commissioners had fired Wiebe and Fouser from their job as public defenders earlier this year. Their termination was effective Saturday. . . . Commissioners had sent Wiebe and Fouser a letter June 29 asking them to remain public defenders until Sept. 30 to give the new public defender time to prepare to take over the job. The letter stated that if Wiebe and Fouser did not want to do so, to notify the commissioners immediately. Wiebe and Fouser did not respond to the letter."

I really feel bad for them Commissioners, cos' I had something like that happen to me too. See, I got divorced from my wife of ten years. She was real nice and all. Cleaned the house, cooked the dinners, even raised up them brats. But she was spendin' too much of my money and I was in the mood for summin' new. Ya know? Anyways, the divorce become official on December 30th. But before then, I gets engaged to this real sweet little gal who promised she wouldn't cost me as much. So, good deal for me, right? We set the wedding for Valentine's Day 'cos she lived out-of-town and she needed time to pack up and move and all. She thought that was real romantic.

But what was I gonna do in the meantime? A man's got his needs. Then I comes up with this idea. I sends a note to my old wife sayin' that I'd like to go out with her on New Year's Eve and that I'd meet her at the Elks like always unless I heard otherwise. And guess what? I get all dressed up and went over there and that bitch never showed! Pissed me off cos' the other Elks were all laughin' at me. I asked her to respond if she weren't coming! So I just assumed she was gonna be there. And I was gonna pay fer her steak and them Cosmos she likes to drink, so it wasn't like she weren't getting somethin' too. I don't unnerstand what I did wrong and I guess them Commissioners don't either.

Tuesday, August 4, 2009

No Public Defender in Canyon County (Updated x 2)

Judge Hurlbutt has denied Wiebe & Fouser's Motion for a Preliminary Injunction. W&F's contract was terminated by the County Commissioners effective Friday and Mark Mimura is not contracted to start until October. Even though the decision was made on Friday, it was not served on the parties until yesterday. Wiebe and Fouser lawyers stopped working after the decision was received from the court.

The Idaho Press Tribune quotes Canyon County spokesperson Angie Sillonis as saying that
"[t]he commissioners received no notice and are very concerned." She went on to say that: "It appears assigned public defenders are choosing to not meet with their own clients, which puts everyone in an awful position. But the board remains committed to assuring services to the people of Canyon County."

How's that? The Commissioners didn't have any notice that they terminated the contract effective July 31? And the Commissioners didn't know that Mark Mimura isn't supposed to start until October 1? Really? Sad, if true.

Anyway, if the county was really concerned about providing public defender service why did they terminate W&F's contract early so they could get a lower bid? It's fairly obvious that the Commissioners just want to save a buck and don't give a fig about public defense.

Here's the story from the Idaho Press Tribune.

UPDATE: And for those who enjoy irony, the Press Tribune is also reporting that the Canyon County Prosecutor has asked the Commissioners for more money so he can raise staff salaries! Doesn't it make more sense for the prosecutors to take a pay cut given the Commissioners have just put the PDs out of business?

SECOND UPDATE: SCOIDBlog has learned that no one from Canyon County has bothered to go over to W&F and retrieve case files. That doesn't show much of a commitment to "assuring services to the people of Canyon County," if you ask me.

Also, the fact that the Commissioners have terminated the PD contract without making adequate provision for new counsel can't be good cause to set trials past the six-month speedy trial time, can it?