Tuesday, August 20, 2013


A public defender, like an ambulance chaser, hunts for technicalities in cases.

"Technicalities" is American for constitutional rights having been infringed.

You may recall a film starring the great Clint Eastwood in which he railed against the injustice of his prey being released on technicalities.  Dirty Harry, who I had assumed was no rookie, apparently had no idea that he had to follow the law.

The great state of Idaho is famous for technicalities.  It spent its first 20 years without criminal laws, only discovered when an enterprising attorney pointed out they had forgotten to take the territory's laws and get them passed as a state.

Recently, the state had to vote in a change to its Constitution to allow the counties to control misdemeanor supervised probation, because well, our Constitution said they couldn't. I'm too lazy to find something showing it passed, but here was the issue: http://www.nlada.net/jseri/blog/idahos-misdemeanor-probation-systems-may-violate-state-constitution

As you might imagine, there are a lot more easter eggs in Idaho law. 

Idaho does NOT provide an attorney at one's first appearance before a neutral magistrate, the only time one's bond must be reviewed (at all other hearings, you have to get it on the docket, and you need to give seven days notice).

Ah! You say. But no one ever said the 6th gives you an attorney at that hearing

You mean that SCOTUS never did, because they're nuts. I've literally heard a judge ask a woman to provide reasons to lower her bond covered by Idaho Criminal Rule 46. She started to cry.

Idaho's Supreme Court has declared a right to appointed counsel in all probation cases under.. well they said that the 6th requires that you be allowed retained counsel (?) and Idaho has a statute giving counsel and so... ?? Counsel. Bam. Does the 6th actually apply to the work the appointed attorney does meaning that counsel has to do a good job? Unknown. (state v. young, look it up).

So we have counsel, kind of. But we don't have him when we're placed in the jail. The first time we will see a judge again, unless a hearing is scheduled, will be one to two months out. Yup.

Then it gets really tricky. You see, judges don't get to just operate in a vacuum. For crimes, judges get complaints and issues warrants. For probation violations at the misdemeanor level---judges get motions for warrants ex parte and act on them.

Oh yes.

There is no law allowing for this procedure. District Court judges don't do it, they hold the hearing and if you don't show you'll get the warrant.

Best of all, in supervised probation cases, the PO goes to the prosecutor, gets a form motion, and takes it to the judge. Did you know filing pleadings is something only a lawyer can do? No? Apparently, neither does misdemeanor probation.

So this is where we get back to technicalities. I get a case and see all of these issues. I file the appropriate motions and get a hearing. The state says, huh, how about your guy do X. And X is perfectly reasonable considering the client did in fact violate his probation. And because frankly, the remedy for all of the above is unknown, and may very well be totally useless.

That to me is a technicality. The huge issues which, when you realize you'll have to ask for a remedy and that you'll never get the court to agree to simply dismiss, they stop seeming all that useful if you can get the state to be reasonable.

But it's just a matter of time before some pissant prosecutor blows off the argument. And things can finally get interesting.

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