Goings on in the law

I don't much care for blawg posts that review a lot of law all at once but I also recognize that for me, it's a good way to organize thing I just learned and may forget if I don't put the info somewhere.  So here goes.

First, Brady violations are where the state hides evidence.  It's a long standing rule that if you plea guilty and then find new evidence, you can sometimes get your case reopened.  A few years back in Ellis the Idaho Supremes reversed a conviction after a trial because of new evidence of an impeaching variety.  Just recently, however, the Court of Appeals refused to keep a habe petition alive because of impeachment evidence that had not been turned over where the defendant had entered a guilty plea.

This is a pretty simple delineation and makes a certain amount of sense, particularly under the facts of the two cases.  Recently, the Second Circuit concluded that in federal court a 1983 action can also be maintained in a situation like Ellis' .  In other words, prior to this, 1983 (suing the government for violating your rights) was impossible if you had entered a guilty plea, now you can sue for a Brady violation hiding what is called exculpatory evidence.  A perfectly reasonable extension, particularly under the facts of that case, where his conviction was overturned.

Second, in this opinion the Court of Appeals extended its view on courtroom attacks on police procedure from the DUI realm to drug dogs.  Once again, the court placed the burden on the defendant to show that the dog was not infallible, and simply pointing out that the procedures used themselves do not ensure accuracy was not good enough.  Here's the pertinent excerpt:
Here, Buck challenged the adequacy of the method used to train the drug dog, but failed to present any documentary or expert witness evidence indicating that the training method was actually flawed or inadequate. Instead, he relied entirely on the statements of the handling officer indicating that the positive reinforcement method used to train his dog may not be universally preferred. The officer testified that, for the entire six years that he had worked with his dog, he had used a training method of giving a reward as soon as the dog gave a hard alert, where the dog sits down and looks up adamantly, refusing to move until the alert is acknowledged with a reward. The officer admitted that there was a “big debate” over whether a dog should be rewarded when making a hard alert before or after drugs are found. He also testified during cross-examination that it had been suggested at a recent training that the latter was preferred to avoid the possibility of the dog alerting when no drugs are present solely to get a reward. However, at no point did the handling officer or anyone else testify that the training method was flawed, outdated, or otherwise inadequate.
The district court determined that the drug dog was reliable based on undisputed evidence that the dog was and is a state-certified drug dog that has never failed a recertification test. The dog and handling officer initially underwent eighty hours of training with an Idaho State Police certified trainer and passed the certification test on the first attempt. The dog is also subject to annual recertification, which he has passed each time on the first attempt. Indeed, the handling officer testified that the dog has never failed any testing in a controlled setting. The handling officer also testified that he engaged in weekly training with the dog. He testified that he had no reason to doubt the dog’s reliability prior to stopping Buck, as the dog had not provided any confirmed false alerts during the certification period or failed to alert on drugs in any controlled settings. According to the officer’s undisputed testimony, all of this training and certification was done using the training method of rewarding the dog for a hard alert even before controlled substances are found. Judging by the fruits of this training method as established by substantial evidence at the suppression hearing, we cannot say the method is inadequate or flawed.

The problems with these conclusions are: (1) it assumes without analysis that the certification process is reliable/ensures reliability (2) it ignores the difference between testing in a controlled setting and work in the real world (3) it simply relies on the officer's willingness to rely on the dog.  I could write an entire post on why the certification process does not ensure reliability, but I'm sure other people have already done it.

The deeper issue is that the burden is being placed on the defense.  If there is no warrant, the burden is on the prosecution.  In other words, the Court is saying that if you want to challenge a dog sniff, you have to show that the dog is unreliable.  That's simply not true.

Another way to read this would be that the state meets its burden at the first instance by simply saying the dog is trained as he is supposed to be.  This is an old court trick to prevent long drawn out hearings on issues the court doesn't think will be fruitful for the defense.  The court, like people, trusts cops.  And so the burden is yours to show the court that it shouldn't.  But there's a big difference between believing a cop who says he saw you forget your blinker and relying on his judgment that his drug dog is reliable.

Anyway, to conclude, we have more work cut out for us.

Third, in what is easily the worst opinion I have ever read from the Court of Appeals, the Court not only takes sides in the class war, but also punishes the public defender for doing his duty per the Sixth Amendment.  Granted, no one has ever applied the Sixth to this kind of case.  This was a private termination case.  In other words, rich people wanted a poor person's baby and they filed to remove the parent, which in Idaho is perfectly legit.  They showed a lot of evidence that mom is awful.  Mom went up and apparently testified she didn't want her son raised with money.  This so offended the Magistrate judge and the Court of Appeals that not only did they take her kids, they made the public defender pay the cost on appeal (which will be thousands upon thousands of dollars).

Idaho is kind enough to provide attorneys at public expense in cases involving people taking people's kids for the target family.  The public defender is often called to do it, which is a huge burden, as a civil case is nothing like a criminal case and these things are massive.  I wouldn't say we often lose.  Judges are not that cruel.  But in this case, based on the facts as presented by the Court, you could see what was going to happen.

But for Courts to take the stance taken here, that they refuse to doom a child to poverty, etc., is madness.  The court's parens patrie authority does not and has not for 60 or so years give it the right to decide to put every poor child in a rich person's home at the earliest opportunity.  The court should not even be able to consider such things.  Else the rich have more reason to refuse to offer assistance to the poor.  Deprive them of decent housing and food and steal their kids!  Madness.

And to take it out on assigned counsel!  To make us bear the costs to the rich for taking a child!  Because we did our duty per the rules of professional conduct and that we believe are also embedded in the Constitution!  Disgusting.  Utterly and completely disgusting.  Worst Opinion Ever.

For those who made it this far, here's a video of a cop killing a man for no reason.  I had written about this shooting a long while back.  Now you can watch it happen.  Happy Marten Luther King Jr. Day.

On Review- No Duty to Retreat

A little while ago the Court of Appeals handed down a rather lengthy opinion in a misdemeanor Battery case called State v. Iverson.   Lengthy opinions from the Court of Appeals happen from time to time, but published opinions for misdemeanor cases are few and far between.

The facts tell the story of a guy confronting a group of gentlemen in front of his home and eventually punching one in the face so hard that it reminds of an old move about a bouncer I once saw called skullcrusher.  Or maybe that was his nickname.  Anyway, one must keep in mind that the fact section is how an appellate court creates a winner.  Here, it was pretty clear from the facts that Iverson was out of luck.

This despite the fact that the state waited till about a week or so before doing a "discovery dump" of information, new witnesses, including a doctor and hospital reports.  The trial judge excluded the doctor and a witness but let another testify.  The District Court on review thought his rulings "deft" and the Court of Appeals seems to agree, but decides that even assuming everything should have been thrown out, it was harmless error.  Good old harmless error.

The meatier part of the opinion for a legal geek is about the history of the no duty to retreat rule in Idaho.  Idaho has a stock instruction that declares that one may stand their ground.  However, the court teases the law apart, going back to the start and following the doctrine from the first opinion back in the 1909 (Idaho has been around since 1890 remember).  The Court concludes that while one does not have to retreat, the option of retreat is something for the finder of fact (aka the jury) to consider when deciding whether a person was reasonable in using self defense.

I'm a defense attorney, and I can't say I disagree with the analysis.  The problem is that in practice it allows the state to argue the defendant should have retreated, and we argue well they didn't have to, and it's kind of like a stalemate.  Whereas prior to this opinion we likely would have argued we have stand your ground in Idaho, now we apparently don't.  However, considering that the no duty to retreat rule is entirely common law, we may be lucky that they didn't find that it doesn't exist.

Still, this is Idaho.  The Idaho legislature may surprise us yet.  Now that it is clear that we don't have stand your ground, nothing is standing in the way of the legislature adopting such a statute.  They just might.  We'll have to wait and see.

Defense cum judge

You know I read a lot of blawgs.  And we all write these expositions about how horrible things are and people being sentenced to outrageous sentences.  Etc.

But you know what we don't talk about?  How we come to loathe some people.  How some become so terrifying to us that we think they belong in prison.

Naturally, we do our duty and put them out on the street as soon as we can.  Any attorney that does otherwise should be lynched at the earliest opportunity.

But that doesn't mean we're inhuman.  We know evil.  Hell, we defend our clients from it every day.

In Idaho we have specialty courts that have panels containing slots for us.  And there are times when we gavel the loudest for the harshest punishment, because we know the population and we know how to "reach" them.  We know a slap on the wrist.  We know what the guy or gal will shake off.  And we also know it is in that person's best interest in the long run to take a good beating.

But if that person is your client that is in that program?  Well.  Shit.

Now imagine we become judge.  In Idaho, the toughest judges I know are all former defense attorneys.  The prosecutors don't like to stray from the law.  They are good to drug addicts, seeking rehabilitation.

Not us though.  We strike and we strike hard.  We remember.  We remember clients doing prison on the installment plan.  We have seen the client screw up every few months or years, going to hearings that end in another partial sanction, another year or so in custody, and then back out, to flop again.

Probation and Parole, in Idaho, is a fucking joke.  We have some damn good judges and prosecutors, and some damn evil ones.  But probation officers, as a group, designation, and governmental bureau, are worthless.  They are so bad that I hope to have one held in contempt next week.  And it may very well happen.

And that is where the defense judge begins his journey, coming from that experience.  He begins to see that all is smoke and mirror.  That help is nowhere to be found, that consequences must come from a harsh judge who is willing to speak the truth to the person in front of them.

And that is why we have to be so much better, as attorneys, facing those judges.  We have to be able to speak truth, or expect to be ignored.  But sometimes we can't find a good truth.  And sometimes the truth is that a client needs what the state won't provide, though it would be cheaper than prison.

So the defense judge and the defense attorney look each other in the eye and know, with a common bond, that the sentence will be arbitrary.  That it is a flip of the coin, the lunch the judge had, that will decide fate.

Why can't those moments always be in our favor as the Constitution clearly commands?

Because we know you.  Been with you through all of it and bled for you.  And sometimes, to save you, a judge truly believes you need a cage.

What a world, that while the gods feast, we mere mortals drag ourselves through the weary dust, born equal, to die alone, betrayed and broken by our brothers, questioning why we even bothered to wake up, much less go to work this morning.