Friday, December 27, 2013


What is a father?

The Court of Appeals issued an "unpublished" opinion* today on the subject.  It is noteworthy because of what the judges signed off on indicates not being a parent-

Doe’s mental health issues, combined with his criminal behavior and lack of stable job or residence, demonstrate that Doe is unable to discharge his parental responsibilities. Furthermore, the behaviors exhibited by Doe are not recent, isolated occurrences, but rather, are a continued and persistent pattern over a number of years. Thus, we hold the magistrate did not err in concluding Doe is unable to discharge his parental responsibilities and that such inability will continue for a prolonged indeterminate period, and will be injurious to the health, morals, and well-being of the child.

The Court speaks of a 26 year old suffering from schizophrenia who receives disability and finds some work detailing cars.

The state of Idaho has no insanity defense.  Thus, in Idaho, you are blameworthy for what you do when you are in the throws of psychosis.  Naturally, Doe has a criminal record.

Recall for a moment the law that provides the foundation upon which your and my right to parent rests, summarized by the Court:

A parent has a fundamental liberty interest in maintaining a relationship with his or her child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the Termination of Parent and Child Relationship Act is the philosophy that wherever possible family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a parent-child relationship be proved by clear and convincing evidence. Id. Because a fundamental liberty interest is at stake, the United States Supreme Court has determined that a court may terminate a parent-child relationship only if that decision is supported by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982). See also I.C. § 16-2009; In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at 652. 

The Court makes no mention of what treatment Doe has, does, or should receive.  So much for "wherever possible family life should be strengthened and preserved."  Rather, Doe is insane.  Therefore, he should not be a parent.

We cannot know how bad a job Doe's attorney did.  Doe apparently wanted to represent himself.  We do know that Doe had a statutory right to put on evidence as to how he can treat his disease and the Court of Appeals does not mention it if it existed in the record.  

If you are a judge, and a case of this importance is brought before you, and you watch a madman essentially be blindfolded and shot in front of you, what can you do?

The standard is "clear and convincing evidence."  The Court should not accept mental illness on its face as a de facto "you can't parent."  The Court should demand FROM THE PETITIONER evidence that the illness is being treated as best as can be expected for the formative years of the child's life.  A judge must allow bad lawyering to destroy lives- that is the essence of our system.  But it is not the case that the law allows the petitioner to get away with such a limited showing.

The lack of understanding for mental illness and disability among the judiciary of Idaho is extremely disappointing and concerning.  The people of this state have shown they have sympathy for the disabled, however blameworthy they find them.  Would that our judges vindicated those interests in our courts.

*"unpublished" opinion essentially means that a clerk or staff attorney wrote the opinion and the judge simply looked at it a moment before signing it, or that the judge wrote it and thought perhaps it was too early to make this into "caselaw."  But there are many very good arguments as to how silly it is to pretend there are non-precedential decisions, and reality tends to bear out the idea that these opinions matter.

Saturday, December 14, 2013

Money matters man, part deux

News from the North- Boise says we spend too much locking up nonviolent offenses.

Well, if the Spokesman Review can be believed.  The article is short and you can read it here.

Spokane is a pretty conservative town.  But I couldn't find a report in any other publication.  No Idaho newspaper is running this story.  Did it happen?  Did it happen in the way the story describes, with most everyone agreeing things in Idaho aren't right?

This is my money line:

Sen. Patti Anne Lodge, R-Huston, the Senate Judiciary chairwoman, said, “We are not getting soft on crime. I don’t want anyone to leave here saying that we’re going to be soft on crime by trying to improve the way we help people become responsible, accountable, taxpaying citizens.” She noted that close to 90 percent of Idaho’s prison inmates eventually are released into society. “We want to be sure that they’re ready to be in our community.”

That's the Idaho I know.  The idea of locking people up for less time shocks the Idaho conscience.  People who commit crime need to be dead.  We'd kill them all if we could.  Why must punishment cost so much?  Sure, we send our criminals the bill for their time incarcerated, but they never seem to get their lives together and pay back that 70+ grand.  Does this really mean we have to let these monsters who steal golfcarts and take video games from Walmart back into our fair cities?

Honestly, if they can convince the IDOC to start paroling people when their eligible instead of waiting until 75% of their time is up, I will likely die of shock.

Friday, December 13, 2013

The Dred Scott of DUI Opinions

Oregon's Supreme Court just decided my favorite issue.  Well, to be fair, they actually scrubbed my issue.  The defendant didn't argue that it's unconstitutional to use fines and loss of a driver's license to procure consent to a search.  I guess.  The Court never says that they did.  So the Court simply says, "well, it's the law! Cops get to tell you about the law!"  Gah.

But then.. this happens:
Notwithstanding our agreement with the state's primary argument -- that the 
officer's reading of the statutory rights and consequences of refusing to submit to the tests 
was not necessarily coercive -- our inquiry is not at an end. Before this court, defendant 
does not seriously contend that a statement of the lawful consequences of refusal is 
unconstitutionally coercive. Rather, defendant's primary argument is that the implied 
consent warnings include at least one consequence of refusal that is not lawful, at least 
not in all circumstances, because it is unconstitutional. Defendant argues that, whatever 
the implied consent statute may say about the matter, a driver has the constitutional right 
to refuse to consent to a seizure of his bodily fluids under Article I, section 9, of the 
Oregon Constitution and, as a matter of constitutional law, the assertion of a 
constitutional right may not be used as substantive evidence of guilt. That is, defendant 
argues, a person may not be put in a position where the only options are to produce 
physical evidence when he or she has the constitutional right not to produce that evidence 
or to refuse the request and have the refusal be used against him or her as evidence of 


Let's fast forward to where the Court appears ridiculous:
Farrar's statement to defendant differs from the terms of ORS 813.310 -- 
the statute that defendant argues is unconstitutional in some circumstances -- in several 
important respects. First, it does not convey certainty that evidence of refusal will be 
used against a driver. Rather, it informs the driver that the evidence "may" be offered. 
Second, it does not inform the driver that the refusal will be admissible; rather, it states 
only that such evidence may be offered. Third, it does not refer to a criminal action, or, 
indeed, any particular type of action at all. The statement actually read to defendant thus 
does not express or imply that evidence of his refusal will be used or can be used as 
substantive evidence against him in a criminal proceeding -- only that it "may be offered 
against [him]." Moreover, it is incontrovertible that a driver's refusal to submit to 
chemical tests lawfully may be used against him or her in at least two non-criminal 
proceedings. Under ORS 813.410, a driver who receives notice that his or her driving
privileges will be suspended based on the refusal or failure to submit to chemical tests for 
intoxication has a right to an administrative hearing on the validity of the suspension. 
The driver's refusal to submit to the tests is relevant evidence to prove the validity of the 
suspension and, thus, lawfully could be offered against him or her at that hearing. 
Additionally, under ORS 813.095, the refusal to consent to a chemical test is a specific 
fine traffic violation. If the driver chooses to contest the violation, the refusal would be 
admissible in the ensuing proceeding. 
It follows that advice that evidence of the refusal or failure "may be offered 
against you" is a true statement, and it advises of a consequence that the constitution does 
not forbid in at least two situations. That statement was not coercive. Defendant has not 
objected to the legality of any of the other consequences that would flow from a refusal to 
submit to the tests, nor has he argued that Farrar's statements to him regarding any of 
them were coercive in any particular respect. 

So there you have it.  They argued semantics.  Really, really stupid semantics.  On this basis, your Fourth Amendment dies.

Because when it comes to DUIs and the breathalyzer industry, science and the Bill of Rights, not to mention logic, are all dead.

Thursday, December 12, 2013

Money matters man.

You know you're a public defender when the judge releases your defendant prior to sentencing and in your head you're screaming, "NOOOOOOOOOOOOO."

Contrary to what some film depictions of us will tell you, we are not all about getting people out as quickly as possible.  That is because most people make deals.  Sometimes those deals are very important.  Say you convince the prosecutor that your client really isn't that bad a guy and to reduce the possible max from life to a decade.  That deal comes all to pieces if your client gets out and then violates the conditions of that release.

Those conditions often consist of simple things, but also difficult things, like:
No driving.
GPS monitoring (which costs a lot of MONEY)
Drug testing (which costs MONEY)

You say to your client, who was just told he is released, "can you afford that?"  OF COURSE I CAN LET ME THE FUCK OUT OF HERE.  Oh.  Well ok.

And then, a week later, back in jail, and a month later, prison.

Sometimes the judge will really screw a client over by saying something like "and your attorney will tell you where to go and what to do, but do it before you go home or I will send you to prison" except now your client is being led away, you have 5 clients left to do, and you're honestly not sure where X is and you think, well, I'll call him later? shit.  shit... there he goes.  Gone.
Except you have no working number for that client and you don't get back to your office till after 5 anyway.

Why didn't you just interrupt the judge and say, "Your honor, I don't know if I will have a chance to tell my client where that is."  Why.  And you know the answer is probably somewhere between getting your client away from the judge before he changes his mind, your confusion, your not wanting to have the judge berate you in front of your 7 clients who rely on you to keep them out of prison and whose faith in you is key to keeping them out, your own dislike of being berated and feeling the fool, and ... seriously you were given a few seconds to respond to this and this guy really wasn't up there on your worries today so where the hell did this come from?  WHY IS THIS MAN SUDDENLY FACING PRISON BECAUSE OF SUCH STUPID THINGS???

You also know that EVERYONE AT JAIL KNOWS WHERE X IS.  And you assume your client will get this information from someone there.  But you are wrong.  Oh lord.  You are sooo wrong.

I guess the message here is assume nothing.  But do you have any idea how exhausting it is to be ready to answer every question and fix every problem on a moment's notice?  This is what I do.  I will not say I do it well.  But I will try.  And when I fail, I will tell the judge it was my fault.  More than that, I dunno man.  I just don't have any great answer for you.


Getting back to the topic-

You know what else is great about money?  You can hire an attorney.

Your private attorney has time to get his paperwork right.  Ok, honestly, I know a lot of private attorneys fail this because I have to handle some cases where rich people want to steal children from poor people, but at least they have the ability.  I, on the other hand, on probably a monthly basis, fuck up an order somehow, and I have no real excuse except that I am an idiot and I am in a rush.  And now bob is in jail an extra day.  But I heart you bob.

Another great thing about paid attorneys- they can confidently fuck a client all to pieces because of a lack of paperwork from the state.  I generally wait for paperwork to show, but it may be that my assistant, who is also the assistant of other attorneys and has other issues, will not get me that paperwork on time but will scan it into our system, and even better, sometimes the assistant will never get the paperwork to me.  And so my system "wait for the physical copy", not a great system I guess, fails.  Can't count on the assistant.  Should I spend an extra hour each day building a system into my phone to remind me to look at certain cases?  Why not.  God knows the public defender sometimes has a good two hours that he spends sitting in court, waiting for three private attorneys to finish their 45 minute summations on their clients' lives in their driving without privileges cases to avoid... a day in jail.

Yeah, it's been one of those days.  You can all go back to whatever it is you do.  I have my rye.  Cheers.

Wednesday, December 11, 2013

Compelling the Insane to Speak

In another move evidently meant to show that the United States Supreme Court is aware that crazy people are a pain and ought to be dead, the Court handed down Cheevers.

J. Sotomayor starts by reminding everyone that the government cannot compel speech.  Except that actually it can, because the Constitution doesn't care unless that compelled speech is used during a trial.

So in this case, the judge below ordered the defendant examined to see if he was competent.  His attorney objected.  But his attorney probably didn't tell him, "oh and don't answer any of their questions because if later we decide to talk about your mental state the government can get all those statements in."  Because at the time, that wasn't true.  Nor would any attorney have thought it ever would be.

But then SCOTUS came, and reminded us that they don't like defendants going to trial and having an edge over the state by giving evidence about their mind.  You see, your thoughts are free, the one thing the government can't surveil.  You can't be allowed to use your thoughts as a defense unless the government can have a crack at them.

Normally, this is done by giving a recording of your conversation with the psychiatric expert to the state so their expert can watch and critique.  But what if the judge already ordered your thoughts examined?  Why can't the state use that?  Just because you were forced to reveal your thoughts?  And that's obviously a violation of your rights?  Psssshhhhhh says SCOTUS.  PSH.

So here's your lesson: Tell your client they have a fifth amendment right not to answer a damn word at the competency eval.  And they probably shouldn't.

Fun question: Who thinks the government is going to start asking for a competency eval in every case that they can make a colorable argument in?  

Thursday, December 5, 2013

Idaho: Submission can be begruding, and also, ride a motorcycle if you don't want the cops rummaging through your things

The Fourth Circuit just released an opinion recognizing that "consent" to a search is.. pretty much never actually consent.  You can read it here.  Or you can read a more entertaining summary of it here.

Meanwhile, today the Idaho Court of Appeals released this decision overruling suppression because... well... perhaps our judges are not very street saavy?  They certainly don't seem to have any experience with dealing with the police or driving a car with a trunk.

The Court had the following facts as found by the DJ:

Here, the officers returned [Petersen’s] license and accompanying information, 
and also asked [him] if he was “good to go.” [Petersen] actually did think he was 
free to go, which is clearly evidenced by the fact that he acknowledged that he 
was good to go, shook the officer’s hands, and began to leave before the officers 
reinitiated questioning. While there is no indication as to tone of the exchange, 
the officers’ testimony indicates that the continued questioning was not 
immediately directed toward accusing [Petersen] of a crime, or inquiring about his 
nervousness--instead, officers continued to ask about the purpose of [Petersen’s] 
trip, and his intended destination . . . . [A] reasonable person would have believed 
he or she was at liberty to ignore the police presence and go about his or her 
business once the officers terminated their questioning, returned [Petersen’s] 
documentation, and asked if he was good to go. 

A review of the totality of the circumstances shows that, when Petersen was questioned the 
second time, the initial traffic stop had terminated and a consensual encounter had begun. 
Petersen had been issued a warning citation, his license and other information were returned to 
him, and he was asked, “are you good to go?” indicating the initial stop had terminated and he 
was free to leave.

Petersen argues that, despite these facts, a reasonable person would not have 
felt free to leave and disregard the officer’s renewed questioning after being ordered out of the 

vehicle and while the officers’ overhead lights remained on.

The Court finds:

The officer’s indication to Petersen that he was free to leave included implicit permission to 
return to his vehicle Petersen also argues that a reasonable person would not have felt free to leave under the circumstances here because of the location of the stop and the presence of the two uniformed officers. However, the location of the stop is not dispositive. Moreover, a seizure does not occur simply because a police officer asks if the individual is willing to answer some questions or puts forth questions if the individual is willing to listen. Florida v. Bostick, 501 U.S. 429, 434 (1991); Florida v. Royer, 460 U.S. 491, 497 (1983); Ray, 153 Idaho at 568, 286 P.3d at 1118. This was the case here. When one of the officers asked Petersen, “are you good to go?” Petersen replied 
that he was and shook both officers’ hand.2 Petersen then indicated that he understood he was 
free to leave by turning to leave and heading toward his vehicle. When one of the officers asked him if he would answer a few more questions, Petersen voluntarily returned and was willing to converse further with the officer. As a result, the district court did not err in finding that the officers did not unreasonably or unlawfully extend the traffic stop because the questioning occurred during a consensual encounter. 

But it gets better!  After finding that your average person feels free to tell the cops he's too busy and leave when there are two of them, their lights are on, and they're suddenly getting weirdly interested in who you are and what you're doing, the Court tells us things we should never do because evidently they show we are drug dealers:
1.Drive from Minnesota to Seattle for a two-day visit with a recent acquaintance
2. with a very clean car for such a long trip
3. with caffeinated soda in view (because only drug dealers have to keep awake)
4. and cellphones (because only drug dealers have those)
5. and an air freshner (because drug dealers have to mask all that drug smell)
6. and blue jeans (I mean, sure, he has a trunk, but JEANS in the CAR?? DRUG DEALER!!!)

I disagree.  And I think any normal person would, so long as you didn't tell them what they were really deciding is whether a drug courier goes free.  And therein lies the rub.  It would be interesting, I think, to see how judges would rule if we never told them what the crime was until after they had concluded there was no constitutional violation.