Fourth Amendment Win for Defendant

The Supreme Court has affirmed the granting of a motion to suppress.
State v. Willoughby,
http://www.isc.idaho.gov/opinions/State%20v.%20Willoughby,%2035289.pdf

The Court held that an anonymous tip that there was a fight in a parking lot, which was not corroborated by officer observation or other evidence, did not amount to reasonable and articulable suspicion to seize the driver of a car which was stopped in the parking lot.

There is a lot more to this case, including a discussion of how to make an adequate record for appeal (the state forgot to admit diagrams of the parking lot drawn during the hearing into evidence) and whether there is a seizure of the driver of an already stopped vehicle as soon as the police turn on their overhead lights (Answer: Not per se, but it is an important factor). It is definitely worth a close read.

Congratulations to Fred Loats!

Follow Up on NSA Forensic Science Report

In light of the NSA report criticizing the state of forensic science [See April 15 SCOIDBlog], some scientists are taking a closer look at the reliability of widely accepted tests.

The New York Times has a report on this today. Plugging Holes in the Science of Forensics,
http://www.nytimes.com/2009/05/12/science/12fore.html?ref=science.

One interesting bit is on examiner bias. One researcher "has conducted studies that show that when working on an identification, fingerprint examiners can be influenced by what else they know about a case. In one experiment, he found that the same examiner can come to different conclusions about the same fingerprint, if the context is changed over time."

So knowing too much about a case can influence examiner results. We see something like this with photo lineups where the officer knows who the suspect is and then unintentionally tips off the witness. Thus, the need for double-blind lineup procedures. Likewise, maybe our state crime labs need to be independent, financially and otherwise, from law enforcement so to minimize pro-prosecution examiner bias.

Update on Canyon Co. Public Defender

The Idaho Press-Tribune is reporting that Third District Administrative Judge Juneal Kerrick has appointed a committee of three local attorneys to consider public defender candidates

Committee members are Gregg E. Lovan (Lovan and Roker), Christopher Nye (of White, Peterson) and William H. Wellman (Owyhee County PD). The panel will review the applicants and recommend between three and five to the Canyon County commissioners. The new contract will be effective Aug. 1.

Klaus Wiebe and Scott Fouser each submitted an application. Also applying are:

• Bond Law Chartered (Virginia Bond-until recently a Canyon County Deputy Prosecutor)
• Dodge Law Office (Shari Dodge - in private practice, former Canyon County Deputy Prosecutor and candidate for Canyon County Prosecutor)
• Gordon Petrie (recently retired District Judge, associated with Gulstrom & Henson, long-time Gem County Magistrate, former Nez Perce County Prosecutor)
• Chad Gulstrom (A former Canyon County Deputy Prosecutor in private practice since 2001)
• Ryan Henson (another former Deputy Canyon County Prosecutor, was also a deputy prosecutor in King County, Washington)
• Mark Mimura (Mimura Law and Gem County PD).

Update: Skelly from the excellent blog "Arbitrary and Capricious" (there's a link on the Recommended Sites box to your right) says that it's "interesting to note the number of former long-time prosecutors on the list who've found a new interest in indigent defense."

Notice of Appeal Must be Filed Even When Permissive Appeal is Accepted by Supreme Court

In a strange opinion, the Supreme Court dismissed a permissive appeal. It seems that the appellant never filed a Notice of Appeal to the Supreme Court after the Court accepted the permissive appeal. Consequently, the Court had no jurisdiction. That part of the opinion is written by Justice W. Jones. Justice Horton then files a special concurrence, joined by the remaining three justices, which agrees that the appeal must be dismissed but goes on to address, in admitted dicta, the merits of the appeal.

In re the Matter of the Termination of the Parent-Child Relations of John Doe, Child, and John Doe I, Parent, http://www.isc.idaho.gov/opinions/DEpt%20of%20H&W%20v%20Doe%20.pdf



After the Magistrate Court terminated parental rights, the parent filed a Notice of Appeal to the District Court. Five months later, the magistrate entered an Order Recommending the Supreme Court Accept a Direct Permissive Appeal Pursuant to I.A.R. 12.1. The Supreme Court granted a permissive appeal, but the appellant never filed a Notice of Appeal to the Supreme Court.

The Court raised the question of jurisdiction sua sponte and then dismissed the appeal because "[a]fter this Court enters an order permitting parties . . . to appeal directly to the Supreme Court, the parties are required to file a notice of appeal with the lower court."

The Court also noted that the Magistrate Court lost the authority to issue the Order Recommending the Supreme Court accept the appeal when the Notice of Appeal to the District Court was filed. Thus, the Supreme Court "improvidently accepted" the appeal.

Justice Horton's special concurrence noted that the Court itself did not follow the rules regarding permissive appeal because its Order accepting the appeal did not "grant[] leave to [the] party to file a notice of appeal within a time certain" as required by IAR 12.1(d). And, it appears the appellant did not have actual notice that s/he was required to file a Notice of Appeal. Nevertheless, Justice Horton agreed that without a Notice of Appeal the Court had no jurisdiction.

However, he goes on to say that "[b]ecause this Court's order evidently contributed to the Appellant's failure to file a notice of appeal to this Court, I believe that a discussion of the merits of this appeal is warranted." He then found that there was substantial and competent evidence in the record to support the magistrate's finding that the parent had abandoned and neglected the child and that termination was in the best interests of the child.

Justice Horton concludes: "I am conscious that Appellant's failure to file a notice of appeal to this Court renders this concurrence mere dicta. However, I think that the prudential considerations that would normally warrant silence as to the merits of this appeal are outweighed by the liberty interest in the parent-child relationship."

I think Justice Horton's heart is in the right place on this one. These cases need to be decided quickly for the sake of both parent and child. I wonder, however, how this dicta is going to affect the District Court's resolution of the appeal which is, I presume, still properly before it. Well, actually, I don't wonder. The special concurrence will no doubt be adopted by the District Court who will read the writing on the wall.

At first glance, I'm not sure that's the right way to resolve this case. The only thing the Supreme Court could dismiss was the permissive appeal before it. The timely appeal to the District Court is still in effect, it seems to me, and the District Court still needs to decide the matter. But, of course, the matter has been "decided" for the District Court via the dicta. The parent's proper appeal to the District Court is now just a charade.

Maybe the Court should have issued an amended order granting the parent time to file the NOA and then decide the case. I don't think there's an appellate rule prohibiting the Court from amending its prior order. If there is, I guess I'm with Justice W. Jones and think that straight up dismissal without any further opinion would have been the best route so the District Court could have made an independent decision on appeal.

Lessons learned: 1) File a Notice of Appeal to the Supreme Court if you ever get it to accept a permissive appeal; 2) Don't count on the Court to give you instructions on how to perfect your appeal.

From The Onion

I don't get that last one, but please don't explain it to me.



The Onion is found on-line at: http://www.theonion.com/

List of COA Candidates Out

Here's a list of the applicants for the Court of Appeals position open due to the retirement of Judge Perry. http://www.judicialcouncil.idaho.gov/Perry%2006C_Candidates.pdf

Be sure to let the Judicial Council know what you know about them.

Grammar Saves the Day for Federal Defendant

As everyone knows, "[w]here a transitive verb has an object, listeners in most contexts assume that an adverb . . . that modifies the verb tells the listener how the subject performed the entire action, including the object." Therefore, the use of the word "knowingly" in the aggravated identity theft statute, which prohibits the knowing use of a means of identification of another person during the commission of certain crimes, requires the government to prove that the defendant knew that the means of identification at issue belonged to another person.

Flores-Figueroa v. United States, http://www.supremecourtus.gov/opinions/08pdf/08-108.pdf.

I was kidding with that "everyone knows" part. But now that we do know, this rule must have many other applications in our Idaho statutes. There are adverbs modifying transitive verbs all over the Idaho Code. Right?

By the way, Grammar Girl's Quick and Dirty Tips for Better Writing is a handy website. That's Grammar Girl pictured above. You can find the website at: http://grammar.quickanddirtytips.com/ I'm going to use it sometime today to figure out that whole transitive verb thing.

On a serious note: The Supreme Court has accepted review in two cases from Florida presenting the question of whether the 8th Amendment bars Life Without Possibility of Parole sentences for juveniles in non-murder cases.