Mandatory Minimum Amount of Sentencing Sanity Required Notwithstanding Mandatory Minimum Sentence (if You're in Oregon)

Here are the facts: "Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute. Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times. When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand."

Now: Guess the sentence under the Oregon Mandatory Minimum Sentencing Law. (Probation with 50 hours of community service? No? More?) "First-degree sexual abuse carries a mandatory sentence of six years and three months (75 months) in prison, under Ballot Measure 11 (1994). In each of these cases, however, the trial judge determined that the mandatory sentence was not 'proportioned to the offense' committed by the defendant and therefore was unconstitutional under Article I, section 16. The trial courts imposed shorter sentences -- 16 months in the case of Rodriguez and 17 months in the case of Buck."

The state had the nerve to appeal these sentences, but luckily the Oregon Supreme Court affirmed the trial courts. But, 16 months for a woman in her 20s who had a 13 year old put his head against her clothed breasts? I concede that it's a lot closer to justice than 75 months, but I always thought Oregon was a liberal state, not a fundamentalist theocracy.

Read the Oregon Supreme Court opinion here: http://www.publications.ojd.state.or.us/S055720.htm

All Flew East

No new opinions from the Court for a couple of weeks now*, but that doesn't mean it's not hard at work. The Court heard four criminal law cases earlier this month (see "September Argument Preview" from 9/4), and are now on the road to Pocatello and St. Anthony to hear some civil appeals.

Long ago, the Justices went on the road in a big white state van, driven by the Clerk of Court and crammed full of files. It may still be like that. But wouldn't it be great if the Court traveled together in a psychedelically painted bus, with someone like Ken Kesey (but alive) driving, dispensing justice along with songs and poems about love and freedom? You know, like the Warren Court. (They don't write opinions like those anymore.)

* There was an amended opinion issued this morning in a Medicaid reimbursement case, but the result did not change.

IACDL Seminar in Pocatello this Friday

The Idaho Association of Criminal Defense Lawyers is sponsoring a CLE this Friday, from 7:30 - 12:45 at the Pocatello Ameritel Inn.

The speakers will be Representative James Ruchti and lobbyist Paul Steed on the "Past and Future of Sex Offender Laws and Adam Walsh Legislation." Robert LaPier will inform you on "Standardized Field Sobriety Tests" and "Breath Test Procedures," and Keith Zollinger will talk about "DUI Blood Draw Cases and the Nuts and Bolts of a DUI Practice."

Plus, afterwards there's lunch at the Sandpiper hosted by Kumm Law and the IACDL!

Contact Debi Presher at dpresher@nbmlaw.com for registration information.

Valley County Public Defender

I noticed on the Bar Association website that the Valley County Commissioners are looking for bids for the public defender contract.

According to Prosecutor Matt Williams, Valley County is contemplating either bringing the public defender in house as a county employee, or appointing a person to be the public defender and negotiating a rate of pay for the services to be provided. The Board of County Commissioners will then interview the 3-5 names sent to them by a screening committee. The County is also considering appointing a conflict public defender.

The list of candidates, to my knowledge, is:

Merideth Arnold (McCall lawyer);
Todd Wilcox (current PD);
J.D. Hallin (SCOIDBlog's own);
Alex Briggs (from former Canyon Co. PDs);
Wes Wilhite (Caldwell lawyer);
Michael Robinson (see below);
Jared Martens (Boise lawyer);
Kenneth Arment (Valley Co. Deputy Prosecutor and fellow Mt. Rainier H.S. [Des Moines, WA] graduate. Go Rams!)

I also noted in the Bar's website that McCall attorney Michael Robinson, whose bar status is listed as "Disability Inactive," is looking for an associate "with at least two years' criminal defense experience, including felonies" to start at 30 hours per week, $30,000 per year, no medical benefits.

Well, that sounds like a pretty good job. Except, I don't know that you could do the PD contract in 30 hours a week. But, if you were able to, you could spend the extra time skiing, provided someone gave you a lift ticket and you were careful to not have an accident.

This is the Way an Era Ends?

Not with a bang but a whimper.

"Canyon County Commissioners and the law firm of Wiebe and Fouser have agreed in principle to a resolution of Wiebe and Fouser's lawsuit against the county and the state, officials said Tuesday.

. . . .

In a prepared statement, commissioners said that under the agreement, Wiebe and Fouser will drop their lawsuit and each side will pay its own attorney fees and court costs. The agreement will need to be signed by the judge assigned to the case.

'We are pleased with this outcome, and we appreciate the years of service Klaus Wiebe and Scott Fouser have given to Canyon County as our public defenders,' Commission Chairman David Ferdinand said in the statement."

Idaho Press Tribune, "Firm settles county lawsuit," http://www.idahopress.com/news/?2009-09-16-Firm-settles-county-lawsuit

Action Alert: Petition for Review to Be Filed in Kriebel

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.)

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

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.