DeLorean, We Hardly Knew Ye

The Associated Press reports that a Portland man was sentenced to two years of probation, a psychological examination and community service for battering his ex-girlfriend and impaling her pet fish.

Here's the sad part: According to court records, the human victim, Harris, had broken up with the defendant, Fite, but Fite returned to Harris's apartment saying he wanted to get back together. When Harris tried to leave, Fite shoved her against a wall, grabbed her hair and tossed her against a bathtub.

Here's the creepy part: "When she later returned to the apartment she found her fish - a bright purple beta named 'DeLorean' - on the wood floor with a knife through it."

Here's the confusing part: Fite confessed to killing DeLorean saying, "If she can't have me, then she can't have the fish."

Here's the funny part: "Prosecutor Eric Zimmerman told Judge Eric Bergstrom that Harris plans to get a memorial tattoo of the fish and wanted Fite to pay for it."

Here's the denouement: The judge declined to make Fite pay for the tattoo. He did order Fite to stay away from Harris, but said he could have contact with fish.

Real instances of domestic violence are not funny, but the prosecutor's argument about the memorial tattoo is hilarious. But why stop there? How about making Fite pay for an eternal flame to be placed at the Oregon Coast Aquarium in DeLorean's memory? Or maybe we should make him organize an annual 5K fun run to raise awareness of violence against aquatic creatures? That'd serve him right after making that crazy confession.

Admission of Preliminary Hearing Transcript at Trial Did Not Violate the Confrontation Clause

Mantz was charged with aggravated assault by intentionally firing a handgun near the head of Karl Hoidal and by verbally threatening him. "Hoidal testified at the preliminary hearing; however, prior to trial Hoidal died in an unrelated accident." The trial court permitted the audio recording of Hoidal's testimony be played to the jury at trial over a confrontation clause objection. Mantz was found guilty by the jury and appealed.


The COA affirmed the conviction finding no confrontation clause violation, holding that "preliminary hearing testimony is admissible as long as the defendant had an adequate opportunity to cross-examine which is determined on a case-by-case basis."

The COA then found that the opportunity to cross-examination was adequate noting that
"[d]efense counsel questioned Hoidal as to the accuracy of his story, underage drinking, desire for an adventure, ability to recall the events of the evening due to alcohol consumption, and motive due to the pressure he was under from his parents and the DUI." Further, "Mantz had approximately two months in which to prepare for his cross-examination of Hoidal. Thus, Mantz was represented by counsel who engaged Hoidal in full and effective cross-examination as to his truthfulness, bias, memory, and motive."

Further, the COA found that Mantz was not significantly limited in his cross-examination. In particular, defense counsel was allowed unrestricted time to cross-examine. And there was no proffer at the trial of "any new and significantly material line of cross-examination that would have been developed at trial that was not touched upon in the prior cross-examination."

State v. Mantz, http://www.isc.idaho.gov/opinions/mantz%20opinion.pdf

This is another example of why it is important to make a record below. Since the COA adopted a case-by-case approach, the particular facts which make the opportunity to cross-examine inadequate in your case must be established. So, be sure to complain about everything which restricts your cross-examination at the prelim and when the magistrate gives you the evil eye tell her that Mantz is making you do it.

In another aggravated assault case involving a pistol, the COA found the court correctly instructed the jury that the state had to prove the defendant 1) fired the pistol, 2) with the specific intent to threaten the victims. It was incorrect, however, to also give a definition of general intent which the jury could have read as saying that it need only find an intent to fire the pistol. No need to reverse the conviction though as the error was harmless.

State v. Hansen, http://www.isc.idaho.gov/opinions/hansen%20opinion.pdf

Ada County Prosecutor Reveals Brady Material

Remember how I was complaining (ok - whining) about "How Come Prosecutors Don't Get Brady?" (SCOIDBlog April 28, 2009) Well, to my surprise and delight there was some Brady/Giglio material in this morning's mail courtesy of the Ada County Prosecuting Attorney.

"It has come to our attention that Detective Mike Babbit has separated from employment with the Garden City Police Department. An internal investigation revealed that Detective Babbit made false statements in a police report during a pending investigation. That investigation was not submitted to the prosecutor's office for review. Detective Babbit indicated in that police report that he had followed up on certain investigative leads in that case when in fact he had not pursued those leads. He then closed out that case as inactive. That case has been reassigned to another detective."

In July, the prosecutors sent out this disclosure.

"It has come to our attention that Officer Tony White has separated from employment from the Boise Police Department. The Boise Police Department has issued sustained departmental policy violations against Tony White for non-conformance to laws and conduct unbecoming an officer. The sustained violations are based upon an internal investigation, which disclosed sufficient evidence to conclude that Officer White failed to register his vehicle in Idaho as required by law, failed to timely pay sales tax on the vehicle, and attempted to protect the asset from seizure during an IRS audit. During the proceeding regarding the internal investigation, Officer White gave inconsistent statements."

All those other defendants who have Mr. Babbit or Mr. White involved in their cases should receive a similar disclosure. Also, those who don't practice in Ada Co., please be on the lookout for new hires at your local police department as these two may be looking for a new situation.

Kudos to the prosecutors who followed the Constitution in these cases.

No New Criminal Law Opinions Today, So Here's a Nice Poem

Fire and Ice

by Robert Frost

Some say the world will end in fire,

Some say in ice.

From what I've tasted of desire

I hold with those who favor fire.
But if it had to perish twice,

I think I know enough of hate

To know that for destruction ice
Is also great and would suffice.

Time to Abandon Public Defender Reimbursements?

Here's an excerpted abstract of an article published in the Fall 2009 University of Michigan Journal of Law Reform. (My wife and I went to law school with the author and we all practiced law together for several years.) This will be a great resource for anyone who is thinking about challenging public defender reinbursements.


Penalizing Poverty: Making Criminal Defandants Pay For Their Court-Appointed Counsel Through Recoupment and Contribution
Helen A. Anderson

"Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, defendants are ordered to repay the cost of their attorney regardless of their ability to pay and without any notice or opportunity to be heard. Many are ordered to pay as a condition of probation or parole, which means they pay under threat of incarceration. In these jurisdictions, recoupment violates the Sixth Amendment, as well as the Due Process and Equal Protection Clauses. . . . In addition, the thirty years since Fuller have verified that recoupment is bad policy because it imposes punishing debt without real fiscal benefit. It is time to abandon practices that penalize defendants for being poor and exercising their right to counsel."

Congratulations Professor Anderson on being awarded tenure!

State Breaches Plea Agreement by Opposing Rule 35 Motion When it Agreed to be Bound to Sentencing Recommendation

The Court issued an opinion today in a Harboring a Fugitive case where the plea agreement provided, in part, that:

"The State and Defendant agree to be bound to following sentencing agreement:
-- that Defendant be granted a Withheld Judgment;
-- that no jail time be imposed;
-- that Defendant be placed on probation for a term at the court's discretion."

At sentencing, the state was good to its word. However, some police officers who were injured by the fugitive the defendant was harboring (defendant's husband who was killed by the police), made victim impact statements and told the judge that the defendant should go to prison. The judge agreed and sentenced the defendant to five years with three fixed. The defendant then filed a Rule 35 motion which the state argued against. The motion was denied.

On appeal, the Supreme Court held: 1) the charging document was adequate to confer jurisdiction on the court; 2) the court did not abuse its discretion in finding the officers were victims; 3) the police officers were not bound by the prosecutor's sentencing recommendation because their statements were made as victims and not as state agents, but that 4) the prosecutor breached the plea agreement by opposing the Rule 35 motion.

"The somewhat unusual language of the plea agreement, '[t]he State and Defendant agree to be bound to following sentencing agreement,' dictates our conclusion that the agreement was breached. The significance of this language is that the State was not simply bound to the agreed-upon recommendation at [defendant's] sentencing, but the broad language represents an unqualified commitment by the State to adhere to the sentencing recommendation at every stage of the proceedings. Consequently, the State was bound to the recommendation in the plea agreement at the Rule 35 hearing."

Read the opinion at: http://www.isc.idaho.gov/opinions/Lampien%20Opinion.pdf

A Private Postage-Meter Mark is Not a Postmark

As SCOIDBlog looks at things from a "criminal defense point of view," we don't get too worked up about civil cases. That's true even when the appellants are Hollywood stars, like yesterday's opinion involving Tom Hanks, Rita Wilson (the stars) and a Sun Valley construction company (not a star). (Spoiler alert: They can all go to arbitration now.) But today there is an interesting issue in a civil case which might have an effect on criminal law practitioners who dabble in other areas. Smith v. Idaho Department of Labor, http://www.isc.idaho.gov/opinions/Smith%20v.pdf

The Department of Labor found that Boise attorney and local legend V.K. Smith, Jr. "willfully failed to file a fourth quarter 2007 Idaho Employer's Quarterly Insurance Tax Report." On the last day to file a notice of appeal, V.K. "sent a notice of appeal by mail and by facsimile. Smith sent the facsimile at 5:22 on May 15, 2008, and the Commission received Smith's appeal by mail on May 28, 2008. The envelope arrived with a private-postage-meter stamp dated May 15, 2008, but also bore a U.S. Postal Service (USPS) backstamp from Watson, Pennsylvania, dated May 20, 2008." The Commission held the appeal was not timely and V.K. appealed.

The Supreme Court affirmed the dismissal. In reviewing cases, the Court wrote: "Read together, these cases require that, in the absence of a USPS postmark, an applicant must provide evidence from the USPS to verify that the mailpiece was sent on a particular day. The USPS routinely postmarks stamped mail but does not ordinarily postmark metered mail. Thus, to ensure that a mailed notice is timely filed, parties should always either use an ordinary postage stamp to ensure that the mailpiece is postmarked or specifically request a postmark on metered mail to verify when the USPS took custody." (Emphasis added.)

Two thoughts immediately come to mind. First, there is no rule requiring you to file your notice of appeal on the last day. Second, this USPS postmark rule doesn't apply to notices of appeal which require the physical filing in the clerk's office, e.g., notices in criminal cases. (The Industrial Commission has a rule that "filing" occurs when the appeal is mailed.)