Today the Court of Appeals held the City of Wendell's curfew ordinance is unconstiutionally overbroad. In the Interest of John Doe, Docket No. 35004. In Doe, the ordinance at issue only provided exceptions if: (1) the minor was accompanied by a parent, or (2) the minor was on an emergency errand, or (3) if the minor was involved in other legitimate business as directed by their parents or school. Holding the ordinance unconstitutionally overbroad, the Court did not evaluate Doe's other two challenges to the ordinance (void for vagueness and equal protection challenge).
Importantly, the Court of Appeals adopted a method of analysis for determining whether the overbreadth of a curfew ordinance is "real and substantial." The method of analysis is "whether the curfew ordinance or statute is so broadly written that it unduly restricts the exercise of First Amendment activities to a degree determined to be unacceptable." In sum, the Court held "by failing to provide an exception for First Amendment rights, the ordinance does not aim specifically at evils within the allowable area of state control but rather sweeps within its ambit other activities that consitute an exercise of First Amendment rights."
The opinion also contains an interesting analysis of appellate jurisdiction and Rule 12, I.A.R. In Doe, Judge Ingram denied the juvenile's motion to dismiss. After accepting the juvenile's conditional admission, the court orally certified the constitutional challenge for appeal prior to disposition. Afterwards, the district court entertained Doe's appeal and rendered a decision on the merits.
Noting Doe failed to strictly abide by Rule 12, the Court noted "not all flaws in the appellate process are jurisdictional as the state asserts." The Court held "the failure to obtain the permission of the district court in this interlocutory appeal did not deprive the district court of jurisdiction. Accordingly, the state's failure to raise this procedural objection in the district court waived the issue. Under these circumstances, we will treat this appeal as an appeal by permission under I.A.R. 12." Rejecting the State's challenge, the Court of Appeal noted Rule 12, I.A.R. and I.C. 20-528 are independent vehicles for seeking appellate review of juvenile matters.
Prost to Dave Heida!
http://www.isc.idaho.gov/opinions/Doe,%2035004.pdf
Tuesday, March 31, 2009
Justice Burdick on Appellate (and Other) Practice
Justice Burdick spoke at this morning's Fourth District Bar CLE on appellate practice. Much of what he offered though applies to all practice, even the practice of a life well-lived.
Credibility. Credibility is your most valuable asset and not one to be squandered. Incomplete or disingenuous statements of fact or law are harmful to your cause. As is hyperbole.
Civility. Civility is much more persuasive than incivility.
Conciseness. Choose your best issues and argue them in a logical concise manner. Consider every issue, every paragraph, every word. Include only those that lead to the result you are seeking.
Justice Burdick referenced Strunk and White's Elements of Style. And, he's right. I first read Elements of Style in 1976 and I last read it about six months ago. If you have not read it in a while, it's well worth a revisit. Thirty minutes with Elements can make a world of difference. It should be on your bookshelf or your desk right next to the court rules.
Five other tidbits --
1. The average time from filing of appeal to decision is 400 days.
2. When you prepare the Notice of Appeal, you must identify the court reporter by name for any transcripts you wish to order. If you don't know the name, check with the district court. If they can't help you, check with the Supreme Court Clerk's office.
3. All appellate briefs are now scanned and put on Westlaw. Therefore, the Court does not want juveniles, whether defendants or victims, referred to by their names. Follow the lead of the district court case title -- State v. Doe, State v. T.M., etc.
4. The Court is tightening up on the question of whether an adequate record has been made below. When a witness or evidence is excluded, a complete offer of proof must be made if the issue is to be preserved. That means an affidavit or testimony. A statement by counsel of "Well, she would have said . . . " won't cut it.
5. Experiments are now underway with electronic records. One day soon instead of the Clerk's Record and transcripts we'll all get a CD with the trial court record on it and create our own excerpts of record.
Credibility. Credibility is your most valuable asset and not one to be squandered. Incomplete or disingenuous statements of fact or law are harmful to your cause. As is hyperbole.
Civility. Civility is much more persuasive than incivility.
Conciseness. Choose your best issues and argue them in a logical concise manner. Consider every issue, every paragraph, every word. Include only those that lead to the result you are seeking.
Justice Burdick referenced Strunk and White's Elements of Style. And, he's right. I first read Elements of Style in 1976 and I last read it about six months ago. If you have not read it in a while, it's well worth a revisit. Thirty minutes with Elements can make a world of difference. It should be on your bookshelf or your desk right next to the court rules.
Five other tidbits --
1. The average time from filing of appeal to decision is 400 days.
2. When you prepare the Notice of Appeal, you must identify the court reporter by name for any transcripts you wish to order. If you don't know the name, check with the district court. If they can't help you, check with the Supreme Court Clerk's office.
3. All appellate briefs are now scanned and put on Westlaw. Therefore, the Court does not want juveniles, whether defendants or victims, referred to by their names. Follow the lead of the district court case title -- State v. Doe, State v. T.M., etc.
4. The Court is tightening up on the question of whether an adequate record has been made below. When a witness or evidence is excluded, a complete offer of proof must be made if the issue is to be preserved. That means an affidavit or testimony. A statement by counsel of "Well, she would have said . . . " won't cut it.
5. Experiments are now underway with electronic records. One day soon instead of the Clerk's Record and transcripts we'll all get a CD with the trial court record on it and create our own excerpts of record.
Wednesday, March 25, 2009
Unexplained Inconsistent and Irreconcilable Testimony Made Under Oath at Different Proceedings Cannot be Deemed Credible.
Nice win for IACDL member (and NevinLaw lawyer) Robyn Fyffe today. Ever have a case where the officer testifies to one thing at the preliminary hearing and then testifies to something completely different at the motion to suppress? Anyone? Everyone? What happened at the hearing? Did the trial court find one version of the testimony to be credible and deny the motion?
That was the case in State v. Munoz. The "detective's testimony at the two proceedings was materially inconsistent and irreconcilable." Therefore, "[t]he district court's finding that Detective Pietrzak was a credible witness cannot be upheld where the record plainly shows that he was not." After emphasizing that there was no effort made to retract or correct his earlier sworn testimony, the COA states that "[i]n our view, a witness who has testified under oath to patently inconsistent descriptions of events and has not offered any explanation for the inconsistency cannot be deemed 'credible' in either instance." As there was no other evidence about the basis for the car search, the state failed to meet its burden of proving an exception to the warrant requirement.
Well done, Robyn!
Monday, March 23, 2009
Interesting Ninth Circuit Case from Idaho
Take a look at United States v. Driggers, wherein crack appellate lawyer Greg Silvey (the "Sage of Kuna") makes a worthy attempt to turn harmless error into reversible error per se by the way he framed the issue on appeal.
Greg got a nibble, but couldn't set the hook. The Ninth Circuit ended up finding the error in the jury instructions harmless. The case is the lead story in the excellent Ninth Circuit Blog. http://www.circuit9.blogspot.com/
Here's some advice from Steven Kalar:
"The second interesting side discussion in Driggers is on “constructive amendments.” Id. at *3. Trying to dodge harmless error review, Driggers argued that the defective standard instructions were a constructive amendment from the indictment (which alleged that he caused travel with the intent that murder be committed). Id. (NB: Constructive amendments require per se reversal).The Chief Judge doesn’t bite: he explains that “constructive amendments occur when the prosecutor proves, or the court instructs the jury to convict on, materially different facts or substantially different crimes than those charged in the indictment.” Id. at *3. That didn’t happen in this case. Id. While Driggers' gambit didn’t work, the approach illustrates a solid appellate strategy: to avoid winning the battle and losing the war, choose appellate arguments with the standard of review in mind."
An Idaho example can be found in appealing the denial of new trial motions. Those are reviewed (for some reason) under the deferential "abuse of discretion" standard. However, the underlying argument for the new trial may have a better standard of review on appeal, e.g., the question of whether a jury instruction misstates the law is reviewed de novo, a much better place to be on appeal.
Nice try Greg.
Greg got a nibble, but couldn't set the hook. The Ninth Circuit ended up finding the error in the jury instructions harmless. The case is the lead story in the excellent Ninth Circuit Blog. http://www.circuit9.blogspot.com/
Here's some advice from Steven Kalar:
"The second interesting side discussion in Driggers is on “constructive amendments.” Id. at *3. Trying to dodge harmless error review, Driggers argued that the defective standard instructions were a constructive amendment from the indictment (which alleged that he caused travel with the intent that murder be committed). Id. (NB: Constructive amendments require per se reversal).The Chief Judge doesn’t bite: he explains that “constructive amendments occur when the prosecutor proves, or the court instructs the jury to convict on, materially different facts or substantially different crimes than those charged in the indictment.” Id. at *3. That didn’t happen in this case. Id. While Driggers' gambit didn’t work, the approach illustrates a solid appellate strategy: to avoid winning the battle and losing the war, choose appellate arguments with the standard of review in mind."
An Idaho example can be found in appealing the denial of new trial motions. Those are reviewed (for some reason) under the deferential "abuse of discretion" standard. However, the underlying argument for the new trial may have a better standard of review on appeal, e.g., the question of whether a jury instruction misstates the law is reviewed de novo, a much better place to be on appeal.
Nice try Greg.
Thursday, March 19, 2009
Cop's Foot in Door Kept Truckin' to Illegal Search
Motel security calls cops about the smell of marijuana coming from a room. Cops show up, knock on the room door and notice a strong smell of marijuana when the door is opened. Cop asks for ID and starts to question occupant about smell. Occupant attempts to close door, but is prevented by cop's foot. Cop then pushes door open so he could keep an eye on occupant. Occupant refuses cop's request to enter room (good boy!). Several minutes later backup arrives and occupant relents, allowing cops in and consenting to search (bad boy!). Naturally a roach is discovered and occupant is arrested for misdemeanor marijuana.Occupant moves to suppress, but neither magistrate judge nor DJ see anything wrong. Theory being, foot in door is illegal entry but consent to second officer was voluntary.
COA reverses and vacates the conviction. First, it confirms that "the first officer unlawfully entered the motel room when he stopped the door from closing with his foot and then pushed the door open so he could continue to observe Hudson." It then stated that, under the attenuation doctrine, the court must determine "whether the police acquired the evidence by exploiting the illegality or by means sufficiently distinguishable to be purged of the primary taint."
In this case, the police were still exploiting the illegal intrusion because the police prevented the occupant from shutting the door. "Therefore, because the unlawful intrusion ws ongoing, the search and subsequent acquisition of incriminating evidence was contemporaneous and irrevocably intertwined with the misconduct." Also, there were no intervening circumstances to independently justify the police intrusion. Thus, the evidence had to be suppressed because the "consent to the second officer to search his room was tainted by the unlawful police instrusion."
State v. Hudson http://www.isc.idaho.gov/opinions/Hudson-opn.pdf
Nice win by IACDL member Bryce Powell. Well done, Bryce.
Wednesday, March 18, 2009
Happy Anniversary Clarence
Today is the anniversary of Gideon v. Wainwright. A sincere SCOIDBlog thank you to all the public defenders and appointed counsel.
Justice Black wrote: "From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
Even though this noble ideal has not been met, you guys make its realization closer. Keep fighting the good fight.
Tuesday, March 17, 2009
Oops(?)
The Stone opinion, blogged below, has been pulled off the Court's website. Astute readers might have noticed that it was dated as being filed tomorrow. (I didn't.) I assume the same opinion will issue on the 18th. I will provide a working link if that happens.
UPDATE: 3/18 - It's back. Here's the link: http://www.isc.idaho.gov/opinions/Stone,%20Faron.pdf
UPDATE: 3/18 - It's back. Here's the link: http://www.isc.idaho.gov/opinions/Stone,%20Faron.pdf
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