People Who Do Reprehensible Things are People Too

The Court issued five opinions in civil cases on Friday. Now usually, as regular readers know, SCOIDBlog does not concern itself with civil cases, but there is some language in one of those cases which may help criminal defense lawyers.

In Shelton v. Shelton, Mr. Shelton filed a motion to modify child custody payments. The alleged material change in circumstances was that "he lost his job [earning $16.55 per hour] after pleading guilty to a sex crime, that he was serving one year in jail with work release, and that he was currently employed earning $6.25 per hour." The trial court dismissed the motion pursuant to I.R.C.P 12(b)(6). The Supreme Court dismissed Mr. Shelton's appeal because the Notice of Appeal was filed one day too late. However, it noted that the motion could be refiled in the trial court as it was dismissed without prejudice. The Court then addressed some issues which might arise if such a motion was filed.

The issue of interest here is that the trial court dismissed Mr. Shelton's motion "because he had failed to offer at the hearing admissible testimony supporting his contention that there had been a substantial and material change in circumstances justifying a modification of the child support." However, "[t]here is no requirement that a party defending against a 12(b)(6) motion must offer admissible testimony at the hearing on the motion" and the trial court should not have dismissed on the failure to do so.


Here comes the useful language:

"The first issue is that all litigants, including those such as Father who are incarcerated for reprehensible conduct, are entitled to equality under the law. Not only is a pro se litigant held to the same standards and rules as an attorney, but the pro se litigant is entitled to have the rules of civil procedure applied to him or her in the same manner as they would be applied to an attorney. In this case, the magistrate judge did not do so. He created a unique procedural hurdle that Father tripped over, resulting in the dismissal of his motion." (Citations omitted, emphasis added.)

While it is not pertinent to my practice, I understand that some SCOIDBlog readers have, on occasion, represented people who are accused of/have done reprehensible things. For those readers, this language can be used as a reminder to our trial courts that we are all entitled to the equal protection of the laws.

Shelton v. Shelton, http://www.isc.idaho.gov/opinions/Shelton%20v.%20Shelton.pdf

Rule 33 May Not Be Used to Challenge Jurisdiction of Court After a Conviction Becomes Final

The Supreme Court has affirmed the denial of a Rule 33 Motion to Withdraw Guilty Plea holding the District Court did not have jurisdiction to consider the claim.

Micah Wegner pleaded guilty to a single count of L&L after being waived into adult court. His judgment and sentence was affirmed on direct appeal. He did not file a post-conviction petition. Two and a half years after his direct appeal was final, he filed a pro se "Motion to Withdraw Plea to Correct Manifest Injustice, I.C.R. 33(c)." His argument was that could not have been found guilty of L&L because he was under the age of fourteen at the time of the alleged offense and Idaho Code section 20-509 does not list L&L as one of the offenses for which minor children can be tried as adults.

The Supreme Court relied upon State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711 (2003), where it stated that:

"Absent a statute or rule extending its jurisdiction, the trial court’s jurisdiction to amend or set aside a judgment expires once the judgment becomes final, either by expiration of the time for appeal or affirmance of the judgment on appeal."

The Jakoski Court held that once a judgment of conviction becomes final, "the district court no longer [has] jurisdiction to hear a motion to withdraw [a] guilty plea."

The Court, in rejecting Wegner's argument that there should be an exception to Jakoski for cases where the court did not have adult jurisdiction over a juvenile, explained that:

"Wegner seeks, in essence, to utilize Rule 33 as a means of collaterally attacking a judgment that has become final. We decline to allow such an attack. The appropriate avenue for obtaining relief from a final judgment of conviction is a proceeding brought pursuant to the Uniform Post-Conviction Procedure Act set out in Chapter 49, Title 19, Idaho Code. Wegner may not utilize Rule 33 as a means of circumventing or supplementing this statutory remedy."

State v. Wegner, http://www.isc.idaho.gov/opinions/Wegner%20Opinion.pdf

Lesson learned: Do not sit on your rights. Even though there are many cases which say that a challenge to subject-matter jurisdiction is never waived, in fact, such challenges are waived if not raised on direct appeal, in a Rule 33 motion made before the appeal is over, or in a timely post-conviction application. Possibly such a challenge could be raised in a Rule 35 motion to correct an illegal sentence if the illegality was apparent from the face of the record. See State v. Clements (decided October 15th). In Wegner, however, it was not clear from the face of the record because the charging period included time before and after he turned fourteen and it was not clear when the event he pleaded guilty to occurred.

Shhhhhh

Things are pretty quiet here at SCOIDBlog HQ. There haven't been any opinions issued by the Supreme Court this week.

There was a good search warrant case issued by the COA though. The Court found there was not probable cause to issue a search warrant where there was an insufficient nexus between observed criminal activities, which occurred at Space 23 of the trailer park, and the search of the residence at Space 25. State v. Belden, http://www.isc.idaho.gov/opinions/Belden-opn.pdf. Congratulations to Sarah Tompkins of SAPD!

Finally, if you're in need of CLE credits or just want to learn something, stop by the IACDL Seminar at the Hotel 43 in Boise tomorrow morning. Last minute CLE shoppers should take note that a valuable Ethics credit will be earned by attendance.

More on Bar Resolution 09-2 (Special Responsibilities of a Prosecutor)

An especially alert SCOIDBlog reader notes the SCOTUS has recently suggested that the prosecutor's Brady obligation does not extend into post-conviction. See, District Attorney's Office v. Osborne, 123 S.Ct. 2308, 2319-2320 (2009). This should make us all especially motivated to attend the bar resolution meetings.

In Osborne, the defendant had been convicted and his case was final when he sued state officials under 42 U. S. C. §1983 claiming "that the Due Process Clause and other constitutional provisions gave him a constitutional right to access the DNA evidence for what is known as short-tandem repeat (STR) testing (at his own expense)." The Circuit Court concluded that the State had an obligation under the principles of Brady and ordered that access be given to Osborne. The Supreme Court reversed, finding that there was no "free-standing" constitutional right to access DNA evidence. "Osborne’s right to due process is not parallel to a trial right,but rather must be analyzed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in post conviction relief. Brady is the wrong framework."

Resolution 09-2, however, requires that a prosecutor promptly disclose "new, credible material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted" to the court and to the defendant "if the conviction was obtained in the prosecutor’s jurisdiction" and also to make further efforts "to determine whether the defendant was convicted of an offense that the defendant did not commit."

In addition, the Resolution provides that "when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction."

I'll be at my meeting to cast a vote in favor. These meetings are usually sparsely attended, so just a few votes can determine the outcome. The Bar Road Show is in Coeur d'Alene today (Hampton Inn at noon) and then in Caldwell, Boise, Twin Falls, Pocatello and Idaho Falls next week.

Valley County Public Defender Update

The finalists for the Valley County Public Defender position are: Todd Wilcox, J.D. Hallin, Ken Arment, and Scott Erekson. Now the County Commissioners will hold interviews. It is not yet known whether Valley County is going to make the Public Defender's Office a county agency or continue to contract the work out.

In a refreshing change of pace, only 50% of the candidates are current or former prosecutors and 100% have actually done some criminal defense work.

Ninth Circuit Applies Gant

Here is a link to the Ninth Circuit Blog summary of United States v. Ruckes, which applies Arizona v. Gant: http://www.circuit9.blogspot.com/

To summarize the summary: The police stop a guy for speeding, find out his license is suspended, arrest him and search his car. No brainer, right? Search unconstitutional under Gant. End of story.

But wait, there's more. Before the search, the police ask the driver if there was anyone who could take possession of the car; if not, the car would be impounded under state law. He didn't have anyone to get the car, so the police searched the vehicle as a search incident to arrest and as an inventory search. Naturally, there was crack and a pistol inside. While the Circuit Court found that Gant prohibited the search incident to arrest, it upheld the search under the inevitable discovery doctrine as the inventory search was valid.

Lesson learned: We need to make the state prove up the requirements for an inventory search when they argue inevitable discovery. In many cases they won't be able to do so.

You can always find a link to the Ninth Circuit Blog in "Useful Sites," which is located in the column to the right. You can get to the opinion itself here: http://www.ca9.uscourts.gov/datastore/opinions/2009/11/09/08-30088.pdf

A View of Death Row

A Boise TV station ran a short segment yesterday called "A Day on Death Row." It's largely from the point of view of a Correctional Officer, but it does explain what a typical day is like for death sentenced inmates (locked in a cell 23 hours a day, except when showering or seeing visitors, 1 hour of outdoor time) and shows a typical cell. If you're interested in an example of man's inhumanity to man it's worth watching.

Holding inmates under such close supervision costs a lot of money. In the past few years both New Mexico and New York have gotten rid of the death penalty in part because it's become too expensive. Maybe Idaho will see the fiscally responsible light.

To see the TV report:
http://www.2news.tv/news/local/69632662.html

To read a report from the Death Penalty Information Center about the costs of capital punishment: http://www.deathpenaltyinfo.org/documents/CostsRptFinal.pdf

In Case You Missed It

1. Here's a link to the October 2009 version of Federal Convictions Reversed, a publication from the Federal Public Defenders of the Northern District of New York. FCR contains cases from United States Courts of Appeal and the United States Supreme Court which contain at least one point favorable to criminal defendants. It's a great starting point whenever you get a federal case. http://www.nynd-fpd.org/reversible%20errors/federal%20convictions%20reversed%20%2010.2009.pdf

2. All lawyers need to attend the Bar Resolution meetings and support Resolution 09-2. It amends I.R.P.C. 3.8 ("Special Responsibilities of a Prosecutor") to conform with the ABA Model Rule. In particular, the following language would be added to the current rule:

g) when a prosecutor knows of new, credible material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(A) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(B) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

3. Here's an article about dog lineups. Not lineups of doggie defendants, but lineups of humans who are sniffed by a dog. Turns out the nose does not always know. Has this ever happened in Idaho? http://www.nytimes.com/2009/11/04/us/04scent.html?_r=1&hp

From the Idaho Innocence Project

Here's a letter from the Idaho Innocence Project.

The Idaho Innocence Project has just been awarded a U.S. Department of Justice grant for Wrongful Prosecution Review. The program's mission is to provide high quality and efficient research, screening, and representation for potentially wrongfully convicted defendants in post-conviction claims of innocence. Post-conviction innocence claims are likely to include complex challenges to the reliability or accuracy of evidence presented at trial which mainly fall into three categories:
1) eyewitness identification evidence;
2) confession evidence; and
3) forensic evidence.

The Idaho Innocence Project hopes to work with Idaho attorneys to succeed in this mission. This a two-year grant, and it will provide a full time legal assistant dedicated to this work.

We are asking Idaho attorneys do two things:
1. Direct us to clients that you believe have a valid wrongful conviction claim. We are especially interested in cases where there is a potential for new forensic evidence to be discovered or tested.
2. Contact us if you are willing to assist us in casework.

If you are interested, please contact us.
　
--
Rick Visser, J.D.
Idaho Innocence Project
Boise State University
Boise, ID 83725-1515
208.426.4207

mailto:richardvisser@boisestate.edu

Rick: Sign me up. I'd like to help.

Recent events have shown us that we need to be careful about protecting confidential information when working with non-lawyers. An Innocence Project branch in Illinois recently had its records subpoenaed by prosecutors. Hopefully, it'll be able to quash the subpoenas and protect client communications.

See 10/24/09 NYTimes article "Prosecutors Turn Tables on Student Journalists." http://www.nytimes.com/2009/10/25/us/25innocence.html?ref=education