Thursday, May 27, 2010

Interesting New 404(b) Case

The Court of Appeals vacated five counts of L&L today and remanded for a new trial due to I.R.E. 404(b) error. The Court emphasized that "[a]t the time of its decision, the district court did not have the benefit of our Supreme Court's opinions in [State v.] Grist, [147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009)] and State v. Johnson, 148 Idaho 664, 227 P.3d 918 (2010). "

One important feature of the opinion is that the COA reiterates that there is no sex crime exception to 404(b) analysis post-Grist. "Courts are to apply the same standard in sexual abuse cases as is applied in other cases for allowing evidence of other bad acts under Rule 404(b)."

The opinion is a good guide on how to analyze the state's proffered 404(b) evidence for objections to its admissibility.

Congratulations to Justin Curtis of the SAPD.

State v. Pokorney,

Wednesday, May 26, 2010

Justice Burdick Wins

In a surprisingly not-close contest, Justice Roger Burdick has won reelection. Judge John Bradbury, after losing a razor-thin race to Justice Joel Horton in 2008, only received 41.7% of the vote and lost by more than 28,000 votes.

Monday, May 24, 2010

Lawsuit Seeks Information About Deposits of Public Money Into Prosecutor Maintained Bank Account

Last Friday, a petition to compel disclosure of public records was filed against Canyon County Prosecutor John Bujak, the Canyon County Prosecutor's Office and Canyon County. The lawsuit seeks records regarding a bank account maintained by Mr. Bujak. The petition alleges that money owed to Canyon County is being placed into an account controlled by Mr. Bujak. The petition also alleges that only about 40% of the money received by Mr. Bujak has been transferred from that account to the Canyon County General Fund.

Here's the background. In 2009, the Canyon County Prosecutor's office contracted with the City of Nampa for prosecutorial services for $598,357.88 per year. The contract was later amended to change the recipient of Nampa's payments from the Canyon County Auditor to Mr. Bujak. The petition alleges the money went directly to Mr. Bujak's account. Canyon County was aware of this arrangement and passed a resolution stating that Mr. Bujak "realize no financial advantage" from the contract. However, according to the petition, Mr. Bujak received payments from Nampa totalling $344,509.04, which were put into the bank account, but has reimbursed the county $135,637.14.

The petitioner, Bob Henry, wants to know what's happened to the money and has filed a series of public records requests. Mr. Henry is the owner of Henry Insurance in Nampa and a former member of the Nampa School District Board. He is also an unsuccessful candidate for a seat on the Nampa City Council.

One of the responses to Mr. Henry's requests explained that Mr. Bujak pays the operating costs and "Prosecutor's Office salary adjustments" out of the funds and then "essentially donates" the rest to the County General Fund. (It appears that the deputy prosecutors get a salary bump funded by the Nampa contract too.) Mr. Henry then asked for documentation relating to the bank account to determine for himself how the $208,871.90 difference between receipts from Nampa and donations to the General Fund had been handled. According to the petition, Mr. Bujak told Mr. Henry in a telephone conversation that the bank account was not subject to a public records request. Mr. Henry apparently disagrees.

I wouldn't be the least bit surprised if every penny of the $208,871.90 has been properly spent. I also wouldn't be surprised if the taxpayers of Nampa are saving money over their previous contract with a private law firm. It does surprise me that an elected public official would try to keep that information secret. Besides, Nixon and Watergate should have taught us that a coverup can do more damage than what's being covered-up.

Monday, May 17, 2010

Juvenile LWOP Sentence Unconstitutional for Non-Homicide Offenses

The Supreme Court has held that a life sentence without possibility of parole violates the 8th Amendment when the defendant is a juvenile and the crime is not a homicide. Until today, Idaho was among the states which permitted such sentences. (Of course, the Idaho Code also purports to permit the death penalty for some non-homicide crimes so our statutes are a bit behind the times.)

Graham v. Florida,

Wednesday, May 12, 2010

Update on State v. Cantrell

Thankfully, the State Appellate Public Defender has petitioned for review in State v. Cantrell. I knew it would, but I'm still relieved to know it's been done.

Cantrell, you might recall, is the case where the Court of Appeals adopted a per se, bright line, rule permitting an officer to search the passenger compartment of a vehicle whenever the driver is arrested for DUI. In my view, the COA simply created a DUI exception to Arizona v. Gant and that ain't right Fourth-Amendment-wise. It is also ironic because Gant specifically rejected a per se, bright line rule permitting such searches incident to arrest. The COA, however, did not follow the Supreme Court's example and simply created a narrower per se rule than the one rejected in Gant.

Hopefully our Supreme Court will take the case and repudiate that part of the COA opinion.

Monday, May 10, 2010

Court Dismisses Capital Post-Conviction Appeal

The Court dismissed capital defendant Gene Stuart's appeal today. The district court had found that Stuart's successive petition was untimely under I.C. 19-2719 and dismissed.

On appeal, the state moved to dismiss the case under Idaho Code § 19-2719(5) which provides:

"If the defendant fails to apply for relief as provided in this section and within the time limits specified, he shall be deemed to have waived such claims for relief as were known, or reasonably should have been known. The courts of Idaho shall have no power to consider any such claims for relief as have been so waived or grant any such relief." The Court has added a "reasonable time" requirement to the statute, i.e., "[c]laims not known or which could not have reasonably been known within 42 days of judgment must be asserted within a reasonable time after they are known or reasonably could have been known."

Stuart responded by arguing that I.C. 19-2719 did not retroactively apply to his case and was an ex post facto law. He also made a number of other state and federal constitutional challenges to the statute. The Court rejected all of those arguments and dismissed the appeal.

Stuart v. State,

Supreme Court Justice Election Debate

Last week Justice Burdick (pictured on the left) and Judge Bradbury (on the right) debated live on public television. If you missed it, you can watch it here:

The program's worth your while. There's a good exchange about the school funding litigation and the role of the Court in making sure the Legislature meets its constitutional requirement to "establish and maintain a general, uniform and thorough system of public, free common schools." Justice Burdick defends the position taken by the Court while Judge Bradbury advocates a more active approach.

Monday, May 3, 2010

Today at the Court

Today the Supreme Court hears oral argument in three cases. The only one involving criminal law is a post-conviction case, Kelly v. State.

One issue in Kelly is the effect, if any, of DeRushe v. State on cases where a court grants the state's motion for summary disposition on grounds not set out in the state's motion. DeRushe held, in part, that a petitioner who is represented by counsel may not challenge the adequacy of the state's notice for the first time on appeal. It also stated that the state's basis for the motion need only be set out with "reasonable particularity."

Another issue is whether the district court should have allowed Kelly, who was pro se, to present oral argument in opposition to the state's motion. The court scheduled a hearing on the state's motion. Mr. Kelly, who was in IDOC custody but held in Texas, did not appear. The court noted in its order dismissing the case that "Kelly did not request to appear at the hearing . . . until after the hearing was held." Mr. Kelly, however, had mailed a motion to transport ten days prior to the hearing which was not received by the court until two days after.