Wednesday at the Court

The Court hears two criminal law appeals today.

The first is State v. Gary Hartwig. This is a case about whether certain amendments to the Sex Offender Registration Act can be applied retroactively.

In 1991, Hartwig pleaded guilty to one count of L&L. He was sentenced to ten years with five years fixed. The sentence was suspended and he was placed on probation. In 1998, Hartwig’s probation was terminated and his case was dismissed. In 2006, Hartwig petitioned the district court to be released from the sex offender registry.

In 2001, however, the Sex Offender Registration Act was amended to designate certain crimes as "aggravated offenses," including L&L. An offender convicted of an aggravated offense may not be removed from the sex offender registry. The court found that the 2001 amendments applied to Hartwig and that he was ineligible for release from the registration requirements even though Hartwig pleaded guilty in 1991.

Hartwig argues on appeal that the 2001 amendments cannot apply to him under a) Idaho’s retroactivity law; b) the state and federal prohibitions on ex post facto laws; c) due process guarantees; and d) the Contracts Clauses of the State and Federal Constitutions.

It would be unjust to apply the 2001 Amendments retroactively to Hartwig. He entered into a plea agreement with the State where he was permitted to petition for removal from the sex offender registry. The State can't take away in 2001 what Hartwig paid for in 1991 with his guilty plea. By the way: Changes which help criminal defendants are never applied retroactively. See e.g., Rhoades v. State, where the Court held that Ring v. Arizona did not apply to death row inmates whose direct appeals were over before Ring was decided.

The second case is State v. Mario Ruiz. This case presents an important question about the scope of defense cross-examination of the State's cooperating witness.

Ruiz and Josh Morrison were both charged with trafficking meth and delivery of meth. The trafficking charge had a three-year mandatory minimum sentence. In exchange for his testimony against Ruiz, the State dismissed the trafficking charge against Morrison and he was allowed to plead to the delivery with a probation recommendation.

At trial, Ruiz's attorney tried to cross-examine Morrison about the benefits he was getting for his testimony. The district court allowed Ruiz to establish that Morrison’s trafficking charge had been dismissed and that the State was going to recommend probation, but was not permitted to ask questions about the three-year mandatory minimum prison sentence. The court stated that it did not want the jury to know of the penalty if Ruiz were to be convicted.

Ruiz argues on appeal that he had a right to cross-examine about Morrison avoiding the mandatory minimum sentence under both the Confrontation Clause and the Rules of Evidence.

If we can't fully cross-examine the informant about his deal, most of the fun of being a trial attorney has been taken away from us. (State v. Perry already took away what little fun appellate attorneys were allowed to have.) There's no doubt in my mind that this is a Confrontation Clause violation. The only question is whether the State can prove that the error was harmless beyond a reasonable doubt.

Friday at the Court

The Court heard argument in three civil cases yesterday and have three more scheduled for today. There is one criminal case on the Friday docket and it's an important one. State v. Torey Adamcik involves a 16 year old who was convicted, along with another teenager, Brian Draper, of the first-degree murder of a classmate. Despite a total absence of any prior record, Torey was sentenced to life imprisonment without the possibility of parole. [Disclosure: I am one of Torey's attorneys.]

The sentence is challenged on appeal as is the sufficiency of the evidence at trial. There is also a Miranda issue, a prosecutorial misconduct issue and challenges to the district court's jury instructions.

On the Road Again (Or Not)

The Court is on the road for the rest of the week. It hears arguments in Idaho Falls today and tomorrow then moves to Pocatello on Friday.

Today the Court hears argument in three civil cases. The first involves a dispute over a Warranty Deed and a repurchase agreement. The last is a parental termination case. The middle case (In the Matter of the License Suspension of Steven M. Wanner), may be of interest to SCOIDBlog readers.

In that case, Steve Wanner was stopped on suspicion of DUI. He failed two breath tests and was given the standard Notice of Suspension form, including the part which informs the driver that an administrative hearing must be requested within seven days. Wanner's request was filed outside the seven days and the Idaho Department of Transportation denied the request as untimely. Wanner appealed to the district court. The court found that the Notice did not provide sufficient notice regarding the effect of the suspension on his commercial driving privileges. It wrote: "Due process requires that drivers with CDLs, who are driving non-commercial vehicles at the time of suspension, be given notice of the impact of I.C. § 49-335(2) and its one year disqualification in the Notice of Suspension." The court excused the untimely filing and, presumably, vacated the suspension.

The IDOT appealed the district court’s determination and argues that the district court lacked jurisdiction because Wanner failed to timely request a hearing and that the standard notice provided sufficient notice to Wanner.

Post-Labor Day Pickup?

It was a quiet August at the Court. No criminal opinions were issued. But with Labor Day in the rear view mirror, I expect things will really start to pick up.

The Court did hear argument in three criminal cases in August, so stay tuned. One of the cases, State v. Ethan Windom, is a challenge to the Life Without Possibility of Parole sentence Judge Copsey imposed on a sixteen year old who killed his mother. According to the Court: "Before sentencing, two doctors both diagnosed Ethan with paranoid schizophrenia and opined that the murder was a product of his mental illness. They each concluded that Ethan was a good candidate for rehabilitation. The district court nonetheless sentenced Ethan to a fixed-life sentence with no possibility of parole, the maximum available." Hopefully, the Court will do something to correct this sentence. There are at least two other juvenile LWOP cases before the Court including State v. Torey Adamcik, which will be argued this month.


In addition to Adamcik, the Court has a full slate of oral arguments in September. The Court has already heard argument in two criminal cases including State v. Albert Ciccone, a murder case where the Court of Appeals dismissed the appeal finding that the Notice of Appeal was not timely filed. And this in a case where Judge Wetherell imposed a fixed-life sentence. (Geez, what is it with the Ada County District Judges and LWOP sentences?)

While the Supreme Court has accepted review in Ciccone and may allow the appeal to proceed, it's worth noting that there is no reason to hold off filing a Notice of Appeal. There is no advantage in waiting until the last minute but a late notice waives your client's right to appeal and practically guarantees a post-conviction petition being filed against you.

Also, the Court has issued revised criminal jury instructions. You can find the revised packet at
http://www.isc.idaho.gov/idaho_courts_e.htm. In particular, the Court has substantially revised ICJI 103, the burden of proof/reasonable doubt instruction by omitting the "moral certainty" language. Reasonable doubt is now defined as:

"A reasonable doubt is not a mere possible or imaginary doubt. It is a doubt based on reason and common sense. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. If after considering all the evidence you have a reasonable doubt about the defendant's guilt, you must find the defendant not guilty."

This strikes me as a pretty tepid definition of reasonable doubt and it's not much help to a juror to start out by saying what reasonable doubt "is not." That undermines the importance of the requirement, in my view. Even worse, the Court eliminated the alternative reasonable doubt instruction, 103A, which used the "hesitate to act" language that I preferred.