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.