Failure to Object to Erroneous Jury Instruction Can be Ineffective Assistance of Counsel

The Supreme Court reversed a summary dismissal of a post-conviction petition and remanded the case for further proceedings. The Court held that the petitioner made out a prima facie case of Ineffective Assistance of Counsel. McKay v. State, http://www.isc.idaho.gov/opinions/McKay%20v%20State.%20Opinion.pdf


Mr. McKay was involved in an automobile/motorcycle accident where the driver of the motorcycle died. He was charged with vehicular manslaughter while driving under the influence of alcohol, "which is defined as a death ―in which the operation of a motor vehicle is a significant cause contributing to the death because of the defendant‘s operation of a vehicle while intoxicated. I.C. § 18-4006(3)(b)." He was convicted at trial.


On post-conviction, Mr. McKay alleged that trial counsel's performance was deficient because he failed to object to an erroneous jury instruction regarding the elements of the offense. The Court agreed.

"There are two deficiencies in the district court‘s instructions. First, the elements instruction omitted the statutory language requiring the defendant‘s intoxicated driving to be a 'significant' cause of the death, rather than simply the cause or a cause. Second, the instruction omitted the I.C.J.I.‘s phrase 'in such unlawful manner,' thereby not requiring the State to prove that McKay‘s culpable conduct in driving under the influence contributed to the death. By failing to account for the phrase "because of" in the statute, the district court‘s jury instructions ignored the required link between the death and the cause of the death, in this case, the defendant‘s operation of a motor vehicle under the influence of alcohol, rendering subparagraphs (a)–(c) meaningless."


The Court also found that there could not be a strategic purpose for counsel's omission because the defense at trial was that it was difficult to see the motorcycle in the dark. "Since the only disputed element in McKay‘s case—whether his driving under the influence of alcohol contributed to the death—was omitted from the instructions, there is no conceivable tactical justification for trial counsel's failure to object."


Finally, the Court found that there was a prima facie showing that counsel's omission was prejudicial.

Harsh Criticism of Idaho's Public Defender System

The National Legal Aid & Defender Association (NLADA) has issued a report which finds that Idaho "fails to provide the level of representation required by our Constitution for those who cannot afford counsel in its criminal and juvenile courts. By delegating to each county the responsibility to provide counsel at the trial level without any state funding or oversight, Idaho has sewn a patchwork quilt of underfunded, inconsistent systems that vary greatly in defining who qualifies for services and in the level of competency of the services rendered. While there are admirable qualities of some of the county indigent defense services, NLADA finds that none of the public defender systems in the sample counties are constitutionally adequate." (Emphasis added.)

The seven counties studied were selected by a sub-committee of the Idaho Criminal Justice Commission and were: Ada, Blaine, Bonneville, Canyon, Kootenai, Nez Perce, and Power.

Here's a link to the NLADA's website which has links to both the full report and an executive summary. http://www.mynlada.org/content/idaho-report

At this point, I have only read the Executive Summary, but the report seems to focus on the following: 1) caseloads which in most counties far exceed national standards; 2) problems in misdemeanor cases, including the acceptance if uninformed waivers of counsel; 3) the lack of time and space for public defenders to meet privately with clients; and 4) the lack of training available to public defenders. It's important to note that the study is critical of the Idaho patchwork system of providing public defense and not of the public defenders who are struggling to do a good job everyday.

NEW LINK: Here's a Boise Weekly story on the report with quotes from interested parties:

http://www.boiseweekly.com/boise/defending-the-poor/Content?oid=1454789

Prisons Here and Abroad -- Compare and Contrast

Two articles from the NY Times: one about kids in US prisons; one about Finnish prisons. One article will inspire you to do all you possibly can for your young clients. The other will make you want to move to Finland. Best yet -- do all possible for young clients here and work to make our state and country more Finnish.

http://www.nytimes.com/2010/01/28/opinion/28kristof.html


http://www.nytimes.com/2003/01/02/international/europe/02FINL.html

Drugs, drugs, who owns the drugs?

Does a police officer's threat to arrest everyone in a car if the owner of the drugs inside doesn't confess turn a traffic stop into custodial interrogation for purposes of Miranda rights? Not by itself, although it is a factor to be considered in a variety of contexts.

In State v. James, the police stopped a car. There was a female driver, Mr. James and the male owner of the vehicle inside. The deputy obtained the owner's consent to search the vehicle. The officer searched the car and found a glass pipe and a brown and white hair "scrunchy." Deputy Sterling found a small ziplock bag containing methamphetamine within the scrunchy.

According to the Court: "Deputy Sterling then questioned the occupants of the car about who owned the drugs. No one admitted to ownership. Deputy Sterling conducted pat-down Terry frisks of the occupants, but did not discover drugs or weapons." The officer admitted that he told the suspects that if somebody didn't confess to ownership he would arrest them all. Mr. James then said "I will take possession." He was not given Miranda warnings prior to the admission. (He later explained that the drugs really belonged to the owner of the car and that he took the blame because the owner was on probation and he didn't want the owner to go to jail.)

On appeal James argued that he was in custody when the police officer threatened to arrest them all if no one confessed and that the statement should be suppressed. The Court wrote in this regard:

"This brings us to the critical inquiry: the effect, if any, of Deputy Sterling's threat to arrest the occupants of the vehicle if no one admitted possessing the contraband that he located. We find that the threat of lawful arrest alone does not transform non-custodial questioning into the functional equivalent of arrest, requiring Miranda warnings. Deputy Sterling, upon finding drugs in the car, had probable cause to arrest all of the occupants. Deputy Sterling's statement of his intended future conduct cannot be said to objectively change the degree of restraint at the time of the statement. Although such a threat may well have implications as to the voluntariness of any statement made in response thereto, it cannot be said to have objectively modified the degree of restraint on James' freedom of movement at that time." (Emphasis added.)

The Court emphasized that it was deciding this case "[b]ased on the limited evidence presented to the district court" and that other factors such as the duration of the detention, the extent of questioning and the visibility of the stop were also relevant to the question of whether a person is in custody for purposes of Miranda.

State v. James, http://www.isc.idaho.gov/opinions/State%20v.%20James,%2035856.pdf

If I had to guess about who hid the drugs in the hair scrunchy I'd guess the female driver. Call it a hunch. It seems Mr. James took the rap out of a sense of gallantry, but it doesn't pay to be gallant anymore, if it ever did.

Tales from a Northern County

An alert reader sent me a link to a great blog: Public Defender Revolution. It's full of interesting postings about life in a Public Defender office, which is unnamed there and so shall remain unnamed here. Here's a link to a post entitled "My Own Private Idaho." It's an interesting read. (See if you can guess who the boss is.) I've added a link to PDR to the Useful Sites section to your right.

http://pdrevolution.blogspot.com/2010/01/my-own-private-idaho.html

NPR Series on Increased Use of Bail

NPR has released a 3-part special on the increased use of bail and the effect it has had on our judicial system and jail populations. The story, with links to the radio program, can be found at: http://www.npr.org/templates/story/story.php?storyId=122725771&ps=rs

SCOTUS Punts on First & Goal?

Today the United States Supreme Court vacated the state court judgment in Briscoe v. Virginia "and remand[ed] the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts."

The issue in Briscoe is whether a Virginia state procedure, which allows a prosecutor to introduce a certificate of a forensic laboratory analysis instead of presenting the testimony of the analyst, avoids violating the 6th Amendment's Confrontation Clause by giving the defendant the right to call the analyst in the defense case. This issue, however, appears to be controlled by the 5-4 decision in Melendez-Diaz which was issued just last June. Many people wondered why cert had even been granted, including Justice Scalia who asked during oral argument: “Why is this case here except as an opportunity to upset Melendez-Diaz?”

I don't know why review was granted. But perhaps it became clear after argument that Justice Sotomayor is considering ruling differently than her predecessor, Justice Souter, who was part of the 5-4 majority in Melendez-Diaz, but is not quite ready to do so. That might explain why the Court sent it back to the state court for further consideration instead of just applying Melendez-Diaz. Given the lack of concern for precedent shown by the Court recently (see last week's opinion in Citizens United v. FEC for an example of Roberts-style judicial activism), I guess anything could happen if the case makes it back.

Don't do it, Suzie!

The Idaho Press Tribune reported on Friday that "Canyon County's Public Defender could become involved in a lawsuit with his sister and law firm associate. But the lawsuit would not interrupt the public defender's services to the county, public defender Mark Mimura said."

The article goes on to explain: "Mark and Susan Mimura have had internal conflicts based on a difference in business philosophy, Susan Mimura said. Mark Mimura declined to discuss details of the conflict. But he did say he planned to obtain legal counsel regarding the matter today."


To read the article: http://www.idahopress.com/?id=29430

Salamander or Frog? You Decide.

Representative Richard Jarvis (R-Meridian) has introduced a bill to make the Idaho Giant Salamander the State Amphibian. The IGS is the largest terrestrial salamander in the Pacific Northwest. Some differences that separate the family Dicamptodonitdae from those small little baby salamanders found in Washington and Oregon, besides the size, are less apparent costal grooves and three segments in the fourth toe of the hind foot, as opposed to 4 segments (Stebbins 1985).

Now I am a big of fan of amphibians as the next guy (and by "amphibian" I mean those ectothermic vertibrates whose skin is usually smooth and need external moisture, who lack scales, hair, and feathers, have three-chambered hearts and lack claws on their toes), but do we really need an official state amphibian? And if we do, shouldn't it be those cute Boreal Chorus Frogs and not that ugly-ass IGS? I've included a photo of each. (The IGS is that horrible monster, the BCFs are those little cute guys and Representative Jarvis is wearing the red tie.) You decide and then let the representative know what you think of his bill.

To read the full text of the bill: http://www.legislature.idaho.gov/legislation/2010/H0389Bookmark.htm.

To contact Representative Jarvis: http://legislature.idaho.gov/about/contactmembersform.cfm?ID=754

Court Affirms Grant of New Sentencing Hearing in Capital Case

The Supreme Court issued its decision in State v. Shackelford today. In a 43 page opinion, the Court affirmed the first-degree murder convictions and the summary dismissal of the post-conviction petition. However, it also affirmed the district court's grant of a new sentencing hearing, albeit on different grounds than the district court.

I've only skimmed the challenges to the convictions, but Mr. Shackelford gets a resentencing because the jury did not find the existance of any aggravating factors in violation of Ring v. Arizona. The state argued that there was a de facto jury finding because the jury found Mr. Shackelford had committed two murders which, the State argued, met "the criteria for the multiple-murder aggravator, I.C. § 19-2515(h)(2)." The Supreme Court held that it could not enter into such speculation on appeal, writing that:

"To engage in appellate hindsight on this issue, such as that advanced by the State, is constitutionally infirm. First, it violates the jury-trial guarantee for a court to 'hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support the verdict might be[.]' Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). Next, the Sixth Amendment 'requires more than appellate speculation about a hypothetical jury's action.' Id. at 280. Moreover, to accept the State‟s argument would be to look at the form of the jury verdict, rather than the effect of using it to sentence Shackelford to death. Ring instructs that this cannot be done. 536 U.S. at 604."

Congratulations to Leo Griffard on successfully defending the resentencing order.

To get the opinion: http://www.isc.idaho.gov/opinions/shackelford%20final%20opn.pdf

Wednesday's Arguments

The Court will hear argument in a land use and a worker's compensation case today. In addition, it will hear argument in State v. Johnson. In that case, the defendant, who was charged with three counts of L&L, put on an alibi-type defense. The state was allowed, over objection, to introduce IRE 404(b) evidence that Mr. Johnson had molested his younger sister when he was 15-16 years old. He challenges that ruling on appeal. He also challenges the exclusion of testimony and physical evidence which the court would not admit because it had not been previously disclosed to the state.

To read the Court's press releases click here: http://www.isc.idaho.gov/ISC_PressRelease_01.20.10.pdf

Unpaid Court Obligations to be Taken out of State Tax Refunds

If you have overdue court fees or fines, don't count on getting your full state income tax refund.

The Supreme Court has announced that "the State Tax Commission may intercept any state tax refunds due to the individual up to the amount owed to the court and will transmit those funds to the court to satisfy the overdue obligation" pursuant to I.C. section 1-1624. Refunds may also be withheld or reduced to pay delinquent court ordered child support.

The statute does not require prior notice of an intent to withhold all or part of the refund. It does provide for an after-the-fact procedure for those who want to contest the action. "Upon remittance of any set-off or part thereof, the court shall cause a written notice to be sent to the taxpayer whose refund is subject to the set-off." The taxpayer then has twenty-one days to file a written request for an "administrative waiver of the set-off."

This statute has been around since 2003, but the Court's news release might be a harbinger of increased efforts to collect past due debts.

Here's a link to the news release: http://www.isc.idaho.gov/Tax%20Return%20-%20Release-1-10.pdf

Today's Arguments

The Court hears two criminal cases today. The first, Pizzuto v. State, is an appeal from the summary dismissal of a successive petition for post-conviction relief in a capital case. The petition's substantive claims include a Brady violation and the violation of the right to an impartial judge. The second case is State v. Rawley, where the Court of Appeals found that several errors, including prosecutorial misconduct, had occurred at trial but affirmed the conviction anyway finding the errors to be harmless.

Here's a link to the Court's Press Releases: http://www.isc.idaho.gov/ISC_PressRelease_01.19.10.pdf

On MLK, Jr. Day:

"In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action."

. . . .

"You may well ask: 'Why direct action? Why sit ins, marches and so forth? Isn't negotiation a better path?' You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. . . . The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation."


From "Letter From Birmingham County Jail," written by Martin Luther King, Jr. on April 13, 1963.

Sister Helen to Speak at NNU

Sister Helen Prejean, anti-death penalty activist and author of the book, “Dead Man Walking,” will speak at the Brandt Auditorium on the Northwest Nazarene University campus, in Nampa, on Wednesday January 27, at 7:00.

Also, you can watch the movie version of Dead Man Walking for free on Hulu.com.

Today at the Court

The Supreme Court hears argument in three cases today. Two of the cases involve real property transactions and disputes arising from those transactions. The other case is Eby v. State, an appeal after the dismissal of a post-conviction petition for inactivity under IRCP 40(c). After the petition was dismissed, the petitioner filed a pro se pleading seeking reinstatement of the petition and alleging that the neglect and inattention of his appointed counsel, whose lack of action on his case led to the dismissal, justified relief.

The issue on appeal is whether reconsideration under IRCP 60(b) is available following a Rule 40(c) dismissal and whether Mr. Eby qualifies for relief under that Rule.

Legislature's Back in Town

The Legislature convenes today and SCOIDBlog will be keeping an eye on what's going on. Hopefully, everyone will be too busy trying to pass a budget to pay any mind to whatever whiny complaints -- I mean legislative proposals -- the Idaho Prosecuting Attorneys Association have this year.

Also, I'll be doing the Legislative Update presentation at the IACDL Sun Valley Seminar (March 5-6). Hope to see you there! (Contact Debi Presher for seminar information. dpresher@nbmlaw.com )

Ada County Sued for Altering Court File

Mark Wicklund, through his attorney Jacob Denton, has filed a complaint in federal court against Ada County and "John and Jane Does." In 2001, Mr. Wicklund was convicted of Sexual Battery of a Minor and placed on probation. The complaint alleges that Mr. Wicklund filed a Motion for Early Release from Probation along with two affidavits in support. It then claims that "individuals from the Ada County Prosecuting Attorney's Office removed the accompanying affidavits from the court file and removed the entry of those documents from the register of actions." Mr. Wickland alleges that the court's denial of his motion was due, in part, to the absence of the affidavits.

The alteration of the court file allegation may be related to another lawsuit filed against James Page, a polygrapher and spouse of an Ada County Prosecutor. Mr. Wicklund alleges Mr. Page improperly conducted a probation polygraph on him during a time when Mr. Wicklund was suffering from narcotic withdrawal. Mr. Page's business partner, a former Boise Police Officer, objected to the polygraph examination. Mr. Wicklund's prescription medication was stopped when he began to serve some discretionary jail time under the terms of his probation. Mr. Wicklund also alleges that members of the probation office and SANE solutions later ordered him to "stand down" and to not take any legal action against Mr. Page or the Ada County Prosecutor's office or he would be placed in jail.

Sentence Imposed in Violation of Estrada is Not an Illegal Sentence

The Court of Appeals has reversed the granting of a Rule 35 sentence based upon an Estrada violation. The district judge granted the motion, then invited the pro se defendant to disqualify him from the case, and then assigned the case to another judge who gave the defendant a longer sentence! On appeal, the defendant defended the granting of the Rule 35 motion even though he got more time because he used the vacation of his sentence to file a Rule 33 motion to withdraw his guilty plea. On appeal, he challenged the denial of his Rule 33 motion (and also the imposition of the greater sentence).

The COA held that an Estrada violation does not result in an illegal sentence and thus may not be challenged under that portion of Rule 35. The Court then found that the Rule 33 motion was untimely because the case was final, i.e., since the Rule 35 motion was not properly granted, the time to file a Rule 33 motion had not restarted. It then found that Mr. Peterson's claim of vindictive resentencing was moot as it had reinstated the original sentence. So, Mr. Peterson ended up in the same place he began.

State v. Peterson, http://www.isc.idaho.gov/opinions/Peterson,%20Robert.pdf

Amendments to the Appellate Rules -- Effective February 1, 2010

Here's a summary of appellate rule changes from Supreme Court Staff Attorney Cathy Derden:

Rule 12.1 on permissive appeal in custody cases has been amended to state that, in the event a notice of appeal to the district court is filed prior to the motion for permissive appeal, the magistrate shall retain jurisdiction to rule on the motion and, in the event the motion is granted by the Supreme Court, the appeal to the district court shall be dismissed.

Rule 17 on the notice of appeal has been amended to add a line to indicate if the appeal is an expedited appeal pursuant to Rule 12.2.

Rule 23 has been amended to delete the appellate filing fee for an appeal from the review of a violent sexual predator designation.

Rule 28 has been amended to delete language allowing the parties to request that certain documents be filed as an exhibit on appeal rather than as part of the clerk’s record.

Rule 30 on augmentation of the record has been amended to address documents with no filing stamp by allowing the moving party to establish by citation to the record or transcript that the document was presented to the district court.

Rules 42 and 118 on petitions for rehearing and review have been amended to clarify that the time for filing a petition for rehearing or review after an opinion has been modified is only referring to a substantive modification and not opinions that are modified to correct clerical errors.

Rule 49 relating to appellate settlement conferences has been amended to provide that the parties must file a request for such a conference and that a conference judge is to be selected from a list of settlement justices and judges maintained by the Administrative Director of the Courts. An order will be entered suspending the case for 49 days while the parties attempt a settlement but at the end of that time the appeal process shall resume. The parties will be responsible for payment of costs and for scheduling the settlement conference at a time convenient to all.

The order can be found on the court’s website at http://www.isc.idaho.gov/rulesamd.htm.

Valley County Rumor

Word on the street is that Scott Erekson is the new Valley County Public Defender. Scott was with the Ada County Prosecutor's office for a few years. More recently, however, he has been practicing with Todd Wilcox (the former VCo public defender) in McCall.

Scott is the author of "Is the Day of Reckoning Coming? - The Collectivist View of the Second Amendment is Going the Way of 'Separate but Equal,' " 40 Idaho Law Review 757 (2004), wherein he presciently predicts the adoption of the individual right interpretation of the Second Amendment which recently occurred in D.C. v. Heller.

Good luck Scott.