Friday, September 25, 2009

Mandatory Minimum Amount of Sentencing Sanity Required Notwithstanding Mandatory Minimum Sentence (if You're in Oregon)

Here are the facts: "Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute. Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times. When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand."

Now: Guess the sentence under the Oregon Mandatory Minimum Sentencing Law. (Probation with 50 hours of community service? No? More?) "First-degree sexual abuse carries a mandatory sentence of six years and three months (75 months) in prison, under Ballot Measure 11 (1994). In each of these cases, however, the trial judge determined that the mandatory sentence was not 'proportioned to the offense' committed by the defendant and therefore was unconstitutional under Article I, section 16. The trial courts imposed shorter sentences -- 16 months in the case of Rodriguez and 17 months in the case of Buck."

The state had the nerve to appeal these sentences, but luckily the Oregon Supreme Court affirmed the trial courts. But, 16 months for a woman in her 20s who had a 13 year old put his head against her clothed breasts? I concede that it's a lot closer to justice than 75 months, but I always thought Oregon was a liberal state, not a fundamentalist theocracy.

Read the Oregon Supreme Court opinion here:

Thursday, September 24, 2009

All Flew East

No new opinions from the Court for a couple of weeks now*, but that doesn't mean it's not hard at work. The Court heard four criminal law cases earlier this month (see "September Argument Preview" from 9/4), and are now on the road to Pocatello and St. Anthony to hear some civil appeals.

Long ago, the Justices went on the road in a big white state van, driven by the Clerk of Court and crammed full of files. It may still be like that. But wouldn't it be great if the Court traveled together in a psychedelically painted bus, with someone like Ken Kesey (but alive) driving, dispensing justice along with songs and poems about love and freedom? You know, like the Warren Court. (They don't write opinions like those anymore.)

* There was an amended opinion issued this morning in a Medicaid reimbursement case, but the result did not change.

Wednesday, September 23, 2009

IACDL Seminar in Pocatello this Friday

The Idaho Association of Criminal Defense Lawyers is sponsoring a CLE this Friday, from 7:30 - 12:45 at the Pocatello Ameritel Inn.

The speakers will be Representative James Ruchti and lobbyist Paul Steed on the "Past and Future of Sex Offender Laws and Adam Walsh Legislation." Robert LaPier will inform you on "Standardized Field Sobriety Tests" and "Breath Test Procedures," and Keith Zollinger will talk about "DUI Blood Draw Cases and the Nuts and Bolts of a DUI Practice."

Plus, afterwards there's lunch at the Sandpiper hosted by Kumm Law and the IACDL!

Contact Debi Presher at for registration information.

Tuesday, September 22, 2009

Valley County Public Defender

I noticed on the Bar Association website that the Valley County Commissioners are looking for bids for the public defender contract.

According to Prosecutor Matt Williams, Valley County is contemplating either bringing the public defender in house as a county employee, or appointing a person to be the public defender and negotiating a rate of pay for the services to be provided. The Board of County Commissioners will then interview the 3-5 names sent to them by a screening committee. The County is also considering appointing a conflict public defender.

The list of candidates, to my knowledge, is:

Merideth Arnold (McCall lawyer);
Todd Wilcox (current PD);
J.D. Hallin (SCOIDBlog's own);
Alex Briggs (from former Canyon Co. PDs);
Wes Wilhite (Caldwell lawyer);
Michael Robinson (see below);
Jared Martens (Boise lawyer);
Kenneth Arment (Valley Co. Deputy Prosecutor and fellow Mt. Rainier H.S. [Des Moines, WA] graduate. Go Rams!)

I also noted in the Bar's website that McCall attorney Michael Robinson, whose bar status is listed as "Disability Inactive," is looking for an associate "with at least two years' criminal defense experience, including felonies" to start at 30 hours per week, $30,000 per year, no medical benefits.

Well, that sounds like a pretty good job. Except, I don't know that you could do the PD contract in 30 hours a week. But, if you were able to, you could spend the extra time skiing, provided someone gave you a lift ticket and you were careful to not have an accident.

Wednesday, September 16, 2009

This is the Way an Era Ends?

Not with a bang but a whimper.

"Canyon County Commissioners and the law firm of Wiebe and Fouser have agreed in principle to a resolution of Wiebe and Fouser's lawsuit against the county and the state, officials said Tuesday.

. . . .

In a prepared statement, commissioners said that under the agreement, Wiebe and Fouser will drop their lawsuit and each side will pay its own attorney fees and court costs. The agreement will need to be signed by the judge assigned to the case.

'We are pleased with this outcome, and we appreciate the years of service Klaus Wiebe and Scott Fouser have given to Canyon County as our public defenders,' Commission Chairman David Ferdinand said in the statement."

Idaho Press Tribune, "Firm settles county lawsuit,"

Tuesday, September 15, 2009

Action Alert: Petition for Review to Be Filed in Kriebel

Richard Kriebel, of the Court of Appeals case holding that Estrada does not announce a new rule and is not retroactive, will seek review in the Idaho Supreme Court.

Mr. Kriebel argued that Estrada did announce a new rule as applied to him because at the time of his JOC there was a Court of Appeals case (State v. Curless) that held a psychosexual evaluation was not a critical stage in the proceedings (opposite of what Estrada held).

In my opinion, we need to keep pressing this issue until we get a definitive answer from the Idaho Supreme Court. (Vavold only indicates it is not a new rule by way of dicta.)

Monday, September 14, 2009

Lawyer-Bloggers in Trouble with Bar

Here's a New York Times article about lawyers who are getting into trouble with the Bar because of what they're posting on their blogs, tweeting or putting on their Facebook pages. "A Legal Battle: Online Attitude vs. Rules of the Bar."

These sanctioned lawyers, it seems to me, just violated some common-sense rules. It should be obvious that you do not ask a judge for a trial continuance so you can attend a funeral, and then brag about your alcohol consumption on your Facebook page while neglecting to express any grief about your loss. The judge might be reading and then might not look at your next motion with favor. Plus, she might rat you out to your boss. (And why did that lawyer let the judge be a Facebook friend anyway?)

Also, don't reveal attorney-client confidences in your blog or anywhere else.

A final tip: Do not identify a judge by name and then call her an "Unfair, Evil, Witch" on your blog, even if she sets your trial one week from arraignment in order to force your client into waiving his right to a speedy trial. The proper phrase is "Distinguished Jurist of Breathtaking Brilliance," and if you ever read those words here you'll know exactly what I mean.

Friday, September 11, 2009

New DJs Named

Susan Wiebe and Robert Naftz have been appointed as District Judges. Wiebe succeeds Stephen Drescher in the Third District and Naftz succeeds Peter McDermott (see 4/21/09 SCOIDBlog "Judge McDermott Tapes Mentally Ill Defendant's Mouth Shut?") in the Sixth.

Wiebe is the daughter of Criminal Defense demi-god Klaus Wiebe and a fine lawyer in her own right.

Naftz is rumored to have practiced a bit of criminal defense in the day, although you won't see that mentioned by the Governor's Press Office. In fact, Naftz won the case which held that mandatory minimum sentencing statutes violated the state constitution. State v. Sarabia, 125 Idaho 815, 875 P.2d 227 (1994) superseded by statute as stated in State v. Puetz, 129 Idaho 842, 934 P.2d 15 (1997). (Oh yes, I remember that brief shining moment of sanity in sentencing law. It seems so long ago now.)

Congratulations to both.

The Governor's press release is here:

Thursday, September 10, 2009

Judge Bradbury Not In Compliance With Residency Requirement

The Court, in a 3-1 decision, with Chief Justice Eismann having recused himself, has found that District Judge Bradbury is not in compliance with the requirement that a district judge "actually reside" in the county where his/her resident chambers is located.

Judge Bradbury has a house in Grangeville, which is in the county where he has his resident chambers. He also has a house in Lewiston, where he spends most of his non-working time. The Court held that the words "actually reside" were not ambiguous and mean that the Judge "must maintain his primary residence in Idaho County, that he must be an inhabitant of Idaho County, and that he must really live in Idaho County." It concluded that "The evidence in the record indicates that he has not been actually residing in Idaho County for some time and this must change."

The Court gave Judge Bradbury 21 days to establish his primary residence in Idaho County and to submit an affidavit stating that he is actually residing in Idaho County and will continue to do so for as long as he is required by law.

Bradbury v. Idaho Judicial Council,

Friday, September 4, 2009

COA: Estrada not Retroactive

Today, the Court of Appeals followed the dicta in Vavold v. State that Estrada is not retroactively applicable. Kriebel v. State,,%20Richard.pdf.

The COA does not discuss the effect of Curless on retroactivity analysis (See: "Further Thoughts: Estrada Retroactivity," August 25 SCOIDBlog). Nor does it discuss how Kriebel should have known he had an Estrada claim prior to Estrada being issued, as Curless said he did not have a Sixth Amendment right to the assistance of counsel at a presentence interview.

Instead the Court applies the retroactivity test from Teague v. Lane. This analysis is incorrect because Teague is the rule used in federal habeas corpus petitions to determine whether a new rule from the United States Supreme Court applies retroactively to state court convictions. That is not the Idaho retroactivity rule, which is set forth in State v. Whitman, 96 Idaho 489, 491, 531 P.2d 579, 581 (1975). The Court said in Whitman that:

"The prospective or retrospective application of a decision is a discretionary determination of judicial policy made by the Court after balancing certain criteria. The Court must weigh:
(1) The purpose of the new rule;
(2) Reliance on the prior decisions of this Court; and
(3) The effect of the new rule on the administration of justice."

This issue of whether Whitman or Teague applies in state post-conviction petitions is currently pending before the Supreme Court in Gene Stuart, et al., v. State, which was argued on August 24.

September Argument Preview

The Court is going to hear argument in four criminal cases this month.

September 17: State v. Vance Watkins. The trial court admitted testimony by an expert witness regarding the handling and testing of DNA evidence. The expert admitted that "she didn't have any personal knowledge of how this testing was performed." On appeal, Mr. Watkins argued that the evidence violated his right to confront witness and also that it was inadmissible hearsay.

The Court of Appeals agreed with the hearsay issue and vacated the judgment of conviction. One of the issues on review is whether the COA erred by considering the hearsay issue since it was not raised until the reply brief even though both sides had the opportunity to present supplemental briefing.

State v. Christopher Flegel presents a double jeopardy issue. At his first trial, the jury acquitted Mr. Flegel of L&L and hung on Count II, sex abuse of a minor. At the second trial the court's instructions permitted the jury to find Mr. Flegel guilty based upon the same evidence he was acquitted of in the first trial. The COA found the error was not harmless and vacated the conviction. The Supreme Court accepted the state's petition for review.

Morgan v. Sexual Offender Classification Board is an appeal from a Violent Sexual Predator classification. Mr. Morgan argues that the Classification Board should have produced requested documents to him so he could use them during his appeal to the district court of the Board's VSP designation. He also challenges the classification itself as he is wheelchair bound.

September 18: Paul Rhoades v. State is a non-capital post-conviction case. Mr. Rhoades filed a post-conviction petition alleging prosecutorial misconduct among other causes of action. The issue on appeal is whether the district erred by dismissing the petition as being untimely.

Thursday, September 3, 2009

Public Defender or Prosecutor? We're at War; So Pick a Side.

As previously reported Virginia Bond is one of the finalists for the Payette County Prosecuting Attorney position. The very same person who applied for the Canyon County Public Defender contract a few weeks ago? Yes.

However, she's not the best choice for either position, at least according to the Payette County Public Defender. The Argus Observer reports:
"Monday, Payette County Public Defender Phil Heersink visited with county commissioners to give his 'two cents worth' on the upcoming appointment to the position.
'You can take what I have to say with a grain of salt because I’m just the public defender,' Heersink told commissioners with a laugh. Heersink was before commissioners to support Kelso, whom, he said, he has worked with in the past and he believes would make the best prosecutor.
'I know Anne Marie,' he said. 'She’s knowledgeable in the criminal area. She’s fair, and she makes fair plea agreements.'
Heersink said he also knew both Faulks and Bond and, though he believed each was a good attorney, he didn’t think they were the top selection for the prosecutor’s seat. . . .
Heersink said he went to trial four times when Faulks was a deputy prosecutor for Payette County. Each time, he said, Heersink won the trial. 'He's not very reasonable to deal with,' he told commissioners. 'When he goes to trial, he usually loses.' Heersink said Bond was very difficult to deal with for defense attorneys. 'She has a lot of animosity,' he said. 'She’s impossible to deal with.' Heersink reiterated that because he was a defense attorney, commissioners could take or leave anything he had to say about the prosecutor’s position."
Geez, Phil, don't hold anything back now. Just tell 'em what you think and don't worry about hurt feelings. But I wonder: Don't you want the prosecutor you've beaten four times in a row? I've never won four games of Checkers in a row, but I know I wouldn't turn down a game with the guy I had a winning streak like yours against.
It's not too late to comment on the candidates. "The commissioners have scheduled all three interviews for Friday morning. Commissioner Chair Larry Church said commissioners will make a final decision on Lee’s replacement Tuesday."