Public Defender or Prosecutor? We're at War; So Pick a Side.

As previously reported Virginia Bond is one of the finalists for the Payette County Prosecuting Attorney position. The very same person who applied for the Canyon County Public Defender contract a few weeks ago? Yes.

However, she's not the best choice for either position, at least according to the Payette County Public Defender. The Argus Observer reports:

"Monday, Payette County Public Defender Phil Heersink visited with county commissioners to give his 'two cents worth' on the upcoming appointment to the position.

'You can take what I have to say with a grain of salt because I’m just the public defender,' Heersink told commissioners with a laugh. Heersink was before commissioners to support Kelso, whom, he said, he has worked with in the past and he believes would make the best prosecutor.

'I know Anne Marie,' he said. 'She’s knowledgeable in the criminal area. She’s fair, and she makes fair plea agreements.'

Heersink said he also knew both Faulks and Bond and, though he believed each was a good attorney, he didn’t think they were the top selection for the prosecutor’s seat. . . .

Heersink said he went to trial four times when Faulks was a deputy prosecutor for Payette County. Each time, he said, Heersink won the trial. 'He's not very reasonable to deal with,' he told commissioners. 'When he goes to trial, he usually loses.' Heersink said Bond was very difficult to deal with for defense attorneys. 'She has a lot of animosity,' he said. 'She’s impossible to deal with.' Heersink reiterated that because he was a defense attorney, commissioners could take or leave anything he had to say about the prosecutor’s position."

Geez, Phil, don't hold anything back now. Just tell 'em what you think and don't worry about hurt feelings. But I wonder: Don't you want the prosecutor you've beaten four times in a row? I've never won four games of Checkers in a row, but I know I wouldn't turn down a game with the guy I had a winning streak like yours against.

It's not too late to comment on the candidates. "The commissioners have scheduled all three interviews for Friday morning. Commissioner Chair Larry Church said commissioners will make a final decision on Lee’s replacement Tuesday."

To read the entire story: http://www.argusobserver.com/articles/2009/09/02/news/doc4a9ea42095601776201286.txt

Seeking Defects in Law?

Here's a link to a Supreme Court press release entitled "Chief Justice Eismann Requests Defects in Law." My first reaction was that we have enough already. And what's the rush? The Legislature's back in Boise come January.

Upon reading, however, it appears that the Chief Justice wants our trial judges and court administrators to report any existing laws which contain defects or omissions. The Supreme Court has a constitutional obligation to report such to the Governor who then passes on the information to the Legislature.

So, if you have any defects or omissions you'd like to see addressed pass them on to your local trial judge. One thing that comes to mind is that the statutory provisions for withheld judgments need to be made intelligible. For example, how can a judgment be deemed "withheld" if the Court still considers it to be a conviction? (See U.S. v. Sharp, 145 Idaho 403, 179 P.3d 1059 (2008).) I think it's clear that the Legislature intended that a withheld judgment not be a conviction unless the defendant failed to comply at all times with the conditions of probation and the law should be amended to abrogate Sharp.

To read the press release, click here: http://isb.idaho.gov/pdf/general/eisman_law_defects.pdf

"Expungement" of Records Can Be Effected Though ICAR 32(i)

Gary Turpen was acquitted by a jury of a misdemeanor charge. He later asked the magistrate court to expunge the records reflecting "the arrest, filing and acquittal by jury." The magistrate court denied the motion and the district court affirmed.

On appeal the Supreme Court first stated that expungement does not mean the actual destruction of records; "[t]hus when we refer to "expungement" we do so in the narrower sense of 'expungement of record,' i.e., "the '[p]rocess by which [a] record of criminal conviction is destroyed or sealed . . . .' "

It then held it would not reach the question of whether the courts had inherent power to order expungement "because there is currently a court rule in place that grants the trial courts the authority to grant relief of the type that Turpen seeks. That rule is I.C.A.R. 32(i)," which "authorizes the trial court to seal or redact court records on a case-by-case basis."

"Before entering an order redacting or sealing records, the court must make one or more of the following determinations in writing:

(1) That the documents or materials contain highly intimate facts or statements, the publication of which would be highly objectionable to a reasonable person, or
(2) That the documents or materials contain facts or statements that the court finds might be libelous, or
(3) That the documents or materials contain facts or statements, the dissemination or publication of which would reasonably result in economic or financial loss or harm to a person having an interest in the documents or materials, or compromise the security of personnel, records or public property of or used by the judicial department, or
(4) That the documents or materials contain facts or statements that might threaten or endanger the life or safety of individuals."

The case was remanded for further proceedings.

State v. Turpen, http://www.isc.idaho.gov/opinions/State%20v.%20Turpen%20-%20FINAL.pdf

Payette County Prosecutor Selection

Payette Co. Prosecutor Brian Lee is going to replace Magistrate Judge Dillon, so the Payette County Prosecutor position is being filled by appointment. Three candidates were interviewed: 1) Virginia Bond, 2) Matt Faulk, and 3) Ann Marie Kelso. The Payette County Commissioners make the final decision. If you or anyone else you know might want to give input the address is:

Payette County Commissioners
Larry Church
Mark Shigeta
Rudy Endrikat
1130 3rd Ave N.
Room 104
Payette, ID 83661

The fax number for letters is 642-6011

A SCOIDBlog reader reports that "my experience is that Ann Marie is diligent, intelligent and easy to work with." That's my experience too.

Forensic Report Reaction

Here's a link to an NPR story about the reaction to the National Academy of Science report of the state of forensic science. According to the story:

"There are some steps everyone appears to agree on, according to [Scott] Burns [executive director of the National District Attorneys Association], such as accreditation of all public and private labs, certification of forensic analysts and scientists and universal standards for certain forensic techniques."

"Everyone also seems to agree that some areas will need further research," for example, shaken baby syndrome which has led to many convictions of murder "on the theory that a certain type of internal bleeding is almost always caused by shaking a baby."

"'We have respected people on both sides of the medical profession speaking very loudly and now with greater and greater vitriol as to whether that theory is legitimate,' Thomas Bohan of the American Academy of Forensic Science says. 'We've got to have somebody like the National Academy of Sciences look at all of the studies that are put forth as validating that theory — and see whether they're valid.'"

To read the transcript or listen to the story: http://www.npr.org/templates/story/story.php?storyId=112111657

Further Thoughts: Estrada Retroactivity

The dicta in Vavold v. State (issued 8-21-09) that Estrada is not retroactive does not end the debate over the effect of the Estrada case.

First, of course, it's dicta. And, as is often the case with dicta, it turns out not to be correct or correct in all circumstances.

Second, it isn't clear, to me at least, that Estrada is merely the application of previously established law. The Estrada Court does not mention State v. Curless, 137 Idaho 138, 145, 44 P.3d 1193, 1200 (Ct. App. 2002), where the Court of Appeals held that the psychosexual evaluation was not a critical stage under the Sixth Amendment. So until Estrada overruled Curless sub silentio, a petitioner could not have known there was a Sixth Amendment claim even though Estrada relies upon older cases to reach that conclusion.

This wrinkle may be resolved in Kriebel v. State which is being argued before the COA today. That case also presents the question of whether the statute of limitations should have been equitably tolled.

Deceptive DNA...

According to the latest issue of TIME Magazine (Aug. 31, 2009): "Making one person's blood and saliva appear to have been taken from someone else is so simple, Israeli scientists found, that a biology student could do it. In a startling experiment, the researchers faked DNA using multiple techniques. In one, they replaced the DNA in a blood sample with that of another person, collected from hair or saliva. In another, they drew on DNA profiles in law-enforcement databases to construct a sample without obtaining any real DNA from a person. Their findings may undercut the viability of genetic evidence in the courtroom."
http://www.time.com/time/magazine/article/0,9171,1917723,00.html