Richard Kriebel, of the Court of Appeals case holding that Estrada does not announce a new rule and is not retroactive, will seek review in the Idaho Supreme Court.
Mr. Kriebel argued that Estrada did announce a new rule as applied to him because at the time of his JOC there was a Court of Appeals case (State v. Curless) that held a psychosexual evaluation was not a critical stage in the proceedings (opposite of what Estrada held).
In my opinion, we need to keep pressing this issue until we get a definitive answer from the Idaho Supreme Court. (Vavold only indicates it is not a new rule by way of dicta.)
Tuesday, September 15, 2009
Monday, September 14, 2009
Lawyer-Bloggers in Trouble with Bar
Here's a New York Times article about lawyers who are getting into trouble with the Bar because of what they're posting on their blogs, tweeting or putting on their Facebook pages. "A Legal Battle: Online Attitude vs. Rules of the Bar." http://www.nytimes.com/2009/09/13/us/13lawyers.html?hp
Also, don't reveal attorney-client confidences in your blog or anywhere else.
These sanctioned lawyers, it seems to me, just violated some common-sense rules. It should be obvious that you do not ask a judge for a trial continuance so you can attend a funeral, and then brag about your alcohol consumption on your Facebook page while neglecting to express any grief about your loss. The judge might be reading and then might not look at your next motion with favor. Plus, she might rat you out to your boss. (And why did that lawyer let the judge be a Facebook friend anyway?)
Also, don't reveal attorney-client confidences in your blog or anywhere else.A final tip: Do not identify a judge by name and then call her an "Unfair, Evil, Witch" on your blog, even if she sets your trial one week from arraignment in order to force your client into waiving his right to a speedy trial. The proper phrase is "Distinguished Jurist of Breathtaking Brilliance," and if you ever read those words here you'll know exactly what I mean.
Friday, September 11, 2009
New DJs Named
Susan Wiebe and Robert Naftz have been appointed as District Judges. Wiebe succeeds Stephen Drescher in the Third District and Naftz succeeds Peter McDermott (see 4/21/09 SCOIDBlog "Judge McDermott Tapes Mentally Ill Defendant's Mouth Shut?") in the Sixth.
Wiebe is the daughter of Criminal Defense demi-god Klaus Wiebe and a fine lawyer in her own right.
Naftz is rumored to have practiced a bit of criminal defense in the day, although you won't see that mentioned by the Governor's Press Office. In fact, Naftz won the case which held that mandatory minimum sentencing statutes violated the state constitution. State v. Sarabia, 125 Idaho 815, 875 P.2d 227 (1994) superseded by statute as stated in State v. Puetz, 129 Idaho 842, 934 P.2d 15 (1997). (Oh yes, I remember that brief shining moment of sanity in sentencing law. It seems so long ago now.)
Congratulations to both.
The Governor's press release is here: http://gov.idaho.gov/mediacenter/press/pr2009/prsep09/pr_061.html
Wiebe is the daughter of Criminal Defense demi-god Klaus Wiebe and a fine lawyer in her own right.
Naftz is rumored to have practiced a bit of criminal defense in the day, although you won't see that mentioned by the Governor's Press Office. In fact, Naftz won the case which held that mandatory minimum sentencing statutes violated the state constitution. State v. Sarabia, 125 Idaho 815, 875 P.2d 227 (1994) superseded by statute as stated in State v. Puetz, 129 Idaho 842, 934 P.2d 15 (1997). (Oh yes, I remember that brief shining moment of sanity in sentencing law. It seems so long ago now.)
Congratulations to both.
The Governor's press release is here: http://gov.idaho.gov/mediacenter/press/pr2009/prsep09/pr_061.html
Thursday, September 10, 2009
Judge Bradbury Not In Compliance With Residency Requirement
The Court, in a 3-1 decision, with Chief Justice Eismann having recused himself, has found that District Judge Bradbury is not in compliance with the requirement that a district judge "actually reside" in the county where his/her resident chambers is located.
Judge Bradbury has a house in Grangeville, which is in the county where he has his resident chambers. He also has a house in Lewiston, where he spends most of his non-working time. The Court held that the words "actually reside" were not ambiguous and mean that the Judge "must maintain his primary residence in Idaho County, that he must be an inhabitant of Idaho County, and that he must really live in Idaho County." It concluded that "The evidence in the record indicates that he has not been actually residing in Idaho County for some time and this must change."
The Court gave Judge Bradbury 21 days to establish his primary residence in Idaho County and to submit an affidavit stating that he is actually residing in Idaho County and will continue to do so for as long as he is required by law.
Bradbury v. Idaho Judicial Council,
http://www.isc.idaho.gov/opinions/Bradbury%20opn.pdf
Judge Bradbury has a house in Grangeville, which is in the county where he has his resident chambers. He also has a house in Lewiston, where he spends most of his non-working time. The Court held that the words "actually reside" were not ambiguous and mean that the Judge "must maintain his primary residence in Idaho County, that he must be an inhabitant of Idaho County, and that he must really live in Idaho County." It concluded that "The evidence in the record indicates that he has not been actually residing in Idaho County for some time and this must change."
The Court gave Judge Bradbury 21 days to establish his primary residence in Idaho County and to submit an affidavit stating that he is actually residing in Idaho County and will continue to do so for as long as he is required by law.
Bradbury v. Idaho Judicial Council,
http://www.isc.idaho.gov/opinions/Bradbury%20opn.pdf
Tuesday, September 8, 2009
Friday, September 4, 2009
COA: Estrada not Retroactive
Today, the Court of Appeals followed the dicta in Vavold v. State that Estrada is not retroactively applicable. Kriebel v. State, http://www.isc.idaho.gov/opinions/Kriebel,%20Richard.pdf.
The COA does not discuss the effect of Curless on retroactivity analysis (See: "Further Thoughts: Estrada Retroactivity," August 25 SCOIDBlog). Nor does it discuss how Kriebel should have known he had an Estrada claim prior to Estrada being issued, as Curless said he did not have a Sixth Amendment right to the assistance of counsel at a presentence interview.
Instead the Court applies the retroactivity test from Teague v. Lane. This analysis is incorrect because Teague is the rule used in federal habeas corpus petitions to determine whether a new rule from the United States Supreme Court applies retroactively to state court convictions. That is not the Idaho retroactivity rule, which is set forth in State v. Whitman, 96 Idaho 489, 491, 531 P.2d 579, 581 (1975). The Court said in Whitman that:
"The prospective or retrospective application of a decision is a discretionary determination of judicial policy made by the Court after balancing certain criteria. The Court must weigh:
(1) The purpose of the new rule;
(2) Reliance on the prior decisions of this Court; and
(3) The effect of the new rule on the administration of justice."
This issue of whether Whitman or Teague applies in state post-conviction petitions is currently pending before the Supreme Court in Gene Stuart, et al., v. State, which was argued on August 24.
The COA does not discuss the effect of Curless on retroactivity analysis (See: "Further Thoughts: Estrada Retroactivity," August 25 SCOIDBlog). Nor does it discuss how Kriebel should have known he had an Estrada claim prior to Estrada being issued, as Curless said he did not have a Sixth Amendment right to the assistance of counsel at a presentence interview.
Instead the Court applies the retroactivity test from Teague v. Lane. This analysis is incorrect because Teague is the rule used in federal habeas corpus petitions to determine whether a new rule from the United States Supreme Court applies retroactively to state court convictions. That is not the Idaho retroactivity rule, which is set forth in State v. Whitman, 96 Idaho 489, 491, 531 P.2d 579, 581 (1975). The Court said in Whitman that:
"The prospective or retrospective application of a decision is a discretionary determination of judicial policy made by the Court after balancing certain criteria. The Court must weigh:
(1) The purpose of the new rule;
(2) Reliance on the prior decisions of this Court; and
(3) The effect of the new rule on the administration of justice."
This issue of whether Whitman or Teague applies in state post-conviction petitions is currently pending before the Supreme Court in Gene Stuart, et al., v. State, which was argued on August 24.
September Argument Preview
The Court is going to hear argument in four criminal cases this month.
September 17: State v. Vance Watkins. The trial court admitted testimony by an expert witness regarding the handling and testing of DNA evidence. The expert admitted that "she didn't have any personal knowledge of how this testing was performed." On appeal, Mr. Watkins argued that the evidence violated his right to confront witness and also that it was inadmissible hearsay.
The Court of Appeals agreed with the hearsay issue and vacated the judgment of conviction. One of the issues on review is whether the COA erred by considering the hearsay issue since it was not raised until the reply brief even though both sides had the opportunity to present supplemental briefing.
State v. Christopher Flegel presents a double jeopardy issue. At his first trial, the jury acquitted Mr. Flegel of L&L and hung on Count II, sex abuse of a minor. At the second trial the court's instructions permitted the jury to find Mr. Flegel guilty based upon the same evidence he was acquitted of in the first trial. The COA found the error was not harmless and vacated the conviction. The Supreme Court accepted the state's petition for review.
Morgan v. Sexual Offender Classification Board is an appeal from a Violent Sexual Predator classification. Mr. Morgan argues that the Classification Board should have produced requested documents to him so he could use them during his appeal to the district court of the Board's VSP designation. He also challenges the classification itself as he is wheelchair bound.
September 18: Paul Rhoades v. State is a non-capital post-conviction case. Mr. Rhoades filed a post-conviction petition alleging prosecutorial misconduct among other causes of action. The issue on appeal is whether the district erred by dismissing the petition as being untimely.
September 17: State v. Vance Watkins. The trial court admitted testimony by an expert witness regarding the handling and testing of DNA evidence. The expert admitted that "she didn't have any personal knowledge of how this testing was performed." On appeal, Mr. Watkins argued that the evidence violated his right to confront witness and also that it was inadmissible hearsay.
The Court of Appeals agreed with the hearsay issue and vacated the judgment of conviction. One of the issues on review is whether the COA erred by considering the hearsay issue since it was not raised until the reply brief even though both sides had the opportunity to present supplemental briefing.
State v. Christopher Flegel presents a double jeopardy issue. At his first trial, the jury acquitted Mr. Flegel of L&L and hung on Count II, sex abuse of a minor. At the second trial the court's instructions permitted the jury to find Mr. Flegel guilty based upon the same evidence he was acquitted of in the first trial. The COA found the error was not harmless and vacated the conviction. The Supreme Court accepted the state's petition for review.
Morgan v. Sexual Offender Classification Board is an appeal from a Violent Sexual Predator classification. Mr. Morgan argues that the Classification Board should have produced requested documents to him so he could use them during his appeal to the district court of the Board's VSP designation. He also challenges the classification itself as he is wheelchair bound.
September 18: Paul Rhoades v. State is a non-capital post-conviction case. Mr. Rhoades filed a post-conviction petition alleging prosecutorial misconduct among other causes of action. The issue on appeal is whether the district erred by dismissing the petition as being untimely.
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