Friday, July 25, 2014

Even When They WIN

Readers know I'm no fan of the SAPD, Idaho's bizarre appellate attorneys for poor felons branch.

Yesterday, they produced a pretty cool win.

But did they?

Really, it was the work of the trial attorney, who made enough of a record to properly preserve the errors in jury selection.

It's been said a million times, but the fact is, the most important part of a trial is jury selection, and then the opening statement.  The rest of it is a lot more fun, but comes pretty easily if you're meant to be a trial attorney at all.

Jury selection is a lot harder.  Idaho is a great state, we get to question the jurors and we can do so forever.  Days on end.  And a good attorney can probably get rid of jury panel after jury panel.  But you don't do that, because either you're not that good or you know eventually the judge will shut you down and you may wind up with something very ugly, so you play a delicate balancing game.

It's the most gambling-related thing that happens.  Kind of like a really goofy shell game where you never got to see what was under the shell in the first place, but you can ask the dealer questions and he can lie all he wants (yes jurors are under oath but... that's bullshit).

Anyway, Ornelas's attorney did a Batson challenge (among other challenges less properly preserved) and lost, thereby creating some damn good law in Idaho.

I say that because the SAPD did NOTHING to create good law.  Per the Court:

We are now faced with an issue of first impression in Idaho: whether a court proceeds to the third step of Batson or ends its analysis after an impermissible reason along with permissible reasons are proffered in the second step of Batson. Ornelas generally contends that “Juror Number 24 was removed because of his gender and, therefore, the district court made a clearly erroneous finding that the prosecutor did not engage in purposeful gender discrimination.” With this contention, Ornelas seeks for us to vacate the judgment of conviction and remand his case for a new trial. However, Ornelas cites no authority for the relief he seeks. The State, meanwhile, quotes excerpts of a Seventh Circuit case that does not directly address the issue at hand. Other courts around the country have addressed this issue, and there is a split of authority among the federal circuit courts of appeal as well as the states. The United States Supreme Court has not yet specifically addressed this issue on review. As we describe below, most states have adopted what is the referred to as the per se approach, some states and most federal circuits have adopted a mixed-motives analysis, and the Ninth Circuit has adopted its own approach.

The Court then proceeds for SEVEN PAGES to do its own fucking research and THANK THE GODS comes out in favor of the substantial part test instead of the mixed motives test (based largely on work other attorneys did in the Ninth Circuit, bless them).

The SAPD.  Seriously, if you allow your client's appeal to go to them, you're committing malpractice.

Wednesday, July 16, 2014

A Light at the End of the Tunnel?

I heard about this opinion a week ago, but the whirl of excitement just seems to keep growing so i figure I gotta say something.

It's a District Court opinion, and I don't think it's available anywhere other than people passing it around.  Came from Judge Stegner, the only district court judge in the second circuit, pitch hitting for first circuit judges.

Basically, someone up North said that the Standard Operating Procedures that the Idaho State Police puts out are worthless (true) and that the law requires that a method be adopted (true) and so there's no method (true) so the state cannot get in its breath test result (tru- wait what).

Well bugger all but the good judge agreed.  After tearing apart the ISPs misuse of the power granted by the legislature in I.C. section 18-8004(4), he simply said enough is enough, the legislature cannot assign the admissibility of evidence to the executive and thus allow the executive to get in whatever it wants at a criminal trial.

Oh, and fuck you.

Shouldn't this mean the state can still call an expert to get it in if they can convince a judge it's acceptable?

No I'm really asking.  The opinion seems to say no, but I don't see why, other than to say "You know what, you're just going to bring the ISP expert to get it in, and that guy wrote the SOPs, and so fuck him, fuck your breath test results, and fuck you."

And I'm totally ok with that.  In any case, it's nice to see a Judge agree that the status quo in DUI cases is not even close to Due Process.

Three cheers for Judge Stegner!  Let's hope the Supreme Court or the Court of Appeals doesn't tear this thing apart.

Saturday, July 12, 2014

Dog's Life (and untimely death by cop)

So a story from the North got pretty big lately.  Cops behaving badly shows up now and again (weirdly, many of those stories come from up north- specifically I'm thinking of an ISP officer with a shit ton of criminal charges).

This stands out for two reasons, first:

Because the police department has received threatening voicemails and emails, the name of the officer who shot Arfee is not being released, Clark said in a news release. The officer has not, however, been placed on administrative leave.


And second:

This is the second officer-dog shooting incident that has resulted in a possible lawsuit in Idaho this year.

You can read the article here.

This is actually interesting to me because cops killing dogs in Idaho is sort of an old battle.  


Smith v. Costello, 77 Idaho 205, 290 P.2d 742 (1955) superseded by statute, I.C. § 6-611, as an example of an arbitrary law being held unconstitutional. In Smith, a conservation officer shot and killed a dog and claimed former I.C. § 37-1407 as an affirmative defense. Idaho Code § 37-1407 provided that “any dog running at large in territory inhabited by deer, is hereby declared to be a public nuisance and may be killed at such time by any game conservation officer . . . .” The Idaho Supreme Court stated that the phrase “territory inhabited by deer” could refer to the majority of the state, including farmland. This could make any farmer’s dog a public nuisance and at risk of being shot by a conservation officer. Accordingly, the Court held that the statute was an “arbitrary, unreasonable and unconstitutional regulation.”


Weird right?  Weirder still, Smith came out the same year that SCOTUS handed down Lee Optical and changed the game for striking down statutes for being really, really stupid.  Lord knows if you could get rid of a law like that today.

It's pretty fascinating that Idaho's lawmakers and law enforcers apparently hate your dog.  And Idahoans obviously love dogs quite a bit because they freak out every time one is killed.  Cop kills a person, you can see the public trying to make it ok and eventually it's like well cops live dangerous lives, that guy earned it.  But cop kills a two year old lab- not so much.

The other majorly interesting part of the story is that the Coeur d'Alene Police Office released a press release that apparently was nothing but lies.  Dog was a pit bull, it said, and lunged out of the van!  but the dog was killed in the van, with a bullet through the window, and pictures of the dog show that it's no pit bull.  Cops are claiming an animal control officer said it was a pit bull but a vet said um, no guys.  no.

It's one thing when cops kill folks because they're untrained and love their guns.  It's kind of another when they release an incredibly stupid cover up story, a brazen one that makes the situation so much worse than it ever needed to be.  Now you have to wonder about the people running this police force.  How can anyone trust these people?  It's not hard to fire or train cops when they have trigger happy issues.  But fixing a department that is fundamentally corrupt?  Sucks to be up North.