Ferguson, Grand Jury, and Indicting a Ham Sandwich

It is an old joke that a Grand Jury would indict a ham sandwich if you wanted them to.

The joke comes from the reality that Grand Jury proceedings are kind of a sham.

First, the burden of proof at a Grand Jury proceeding is probable cause.  The prosecutor must prove that there is probable cause to bring criminal charges against the Defendant.  Probable cause is the lowest burdens of proof.  The only burden of proof lower is ‘reasonable suspicion’.   The burden an officer must have to stop a vehicle for example.

Second, neither a defense attorney, nor the defendant himself can be present at the Grand Jury proceeding.  The proceedings are closed proceedings.  You can imagine what the consequences are when you have one hand clapping.  The prosecutor’s bias view rules the day.  There are rules of conduct that require the prosecutor to present evidence in mitigation, but you can only imagine the half hearted presentation that this evidence is given.

Consequently, anytime a prosecutor wants to indict a Defendant on a felony charge, he can do so.  It is a very rare occurrence for a Grand Jury to refuse to indict a Defendant.

That is what is so interesting about the Ferguson case.  Why didn’t the Grand Jury indict the officer that shot Michael Brown?  At a minimum it appears that there were conflicting statements from witnesses, some witnesses that say that Michael Brown was surrendering and still being shot.  Whether these witnesses are credible or not, why didn’t the grand jury at least find probable cause?  Did the prosecutor sabotage his own case in order to shift blame from himself to the Grand Jury?  Now the prosecutor can say, well I tried to charge the officer, but the Grand Jury refused to find probable cause.

What bothers me the most is not that the Grand Jury failed to indict the officer.  What bothers me is that under no circumstances would a Grand Jury have failed to indict anyone else that wasn’t wearing a badge.  There is a double standard in our country when it comes to self defense.  When an officer of the law defends himself, he is nearly always given the benefit of the doubt, and nearly always cleared of any wrong doing.  Anytime any other citizen defends themselves they face the very real possibility that they will be charged and convicted of murder.

Famous last words: I am innocent, I do not need an attorney.


Too many times I have had criminal defendants come to me after their case is finished asking if there is something I can do to help them now that they have been wrongly convicted of a crime. Naturally I ask them why they didn’t come to me before the case was finished. The most frequent answer I get is that they were innocent of the charges, and they believed that everything would work out okay, because innocent people cannot be convicted of a crime.

The belief that innocent people cannot be convicted comes from, one the belief that Government is good and should be trusted, and two a misunderstanding of how the judicial system works.

The same clients that believed that everything would work out ok because they were innocent also believed that if the only evidence the State had was the testimony of one witness, there was no way they could be convicted. They had heard somewhere that this evidence is ‘hearsay’ evidence, and could not possibly be the basis for a criminal conviction.

Well first, testimony is only hearsay if that witness does not come to court. Once the witness comes to court and tells the jury the same words, it is no longer hearsay. And second, the belief that one persons words, without more evidence, cannot convict you, is a major misunderstanding of how our judicial system works. In fact, the greater portion of cases that go through the criminal courts are exactly that, cases based on one witnesses statements.

Since these defendants believe that they will not likely be convicted of the charges, they sit back and do nothing to improve their situation. They file no legal motions, they do no discovery or investigation, and they just show up to the court in hopes that they can just tell the judge to dismiss this obviously frivolous case. Those same defendants end up being sorely disappointed when they get convicted of a criminal charge, and even sent to jail.

So if you are one of these people who believe that the Government is good and would never wrongly convict someone, or believe that one persons allegations against you could never end in a conviction, then please call me today and set up a consultation so that we can talk about what you can do to save yourself from a very embarrassing, and even painful future in court.

Arrested and Not Read My Rights!

rights…The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.
United States Supreme Court,  Miranda v. Arizona

Hollywood has done both a service and disservice in raising awareness of what have come to be known as the Miranda Warnings.  Miranda warnings are the rights you are commonly read when arrested by the police.  In the movies and television shows, the police always read off a memorized statement of rights to the suspect they are hand cuffing before they throw him into the back of their car.  These movies have been a service to the public at large in that they make people aware that they indeed have these rights, and these rights must be read to them.  It has done a disservice to the public in that the movies and television shows do not explain when your rights must be read to you, and what the consequences are when they do not read them to you.  The movies and television shows make it look like your rights must be read to you whenever you are taken into custody, but that is not the case.

The reason that law enforcement is required to read the ‘Miranda Warnings’ is because historically the public has been unaware of exactly what their rights are.  If you do not know what your rights are, then obviously it is going to make it a little difficult to exercise those rights.

The truth about Miranda Warnings is, they do not have to be read to a suspect that is simply being arrested.  The warning has to be read to a suspect before he is questioned while in custody.  The reason police will sometimes read a suspect his rights when he is arrested is so that anything he says after he is arrested will be clearly admissible in court.  For example, after a suspect is arrested and placed in the police car, the officer may casually ask the suspect questions on the way to the jail.  The suspect may answer those questions.  If those questions have any relevance to a crime, the suspect may have a basis to suppress those statements at trial as a violation of his constitutional rights.  So some police agencies just read the rights to every individual suspect they arrest.  Many agencies do not.

There really are no ‘Miranda Rights’, there are only constitutional rights.  What we call ‘Miranda Rights’ are actually just a group of constitutional rights related to criminal law.  The Fifth and Sixth Amendments to the United States Constitution grant a defendant a right against self incrimination, and a right to an attorney during every stage of a criminal prosecution.

If a suspect is questioned by the police, while in custody, and hasn’t been read his rights, the statements the suspect makes to the police can be suppressed by a court for a violation of the Defendant’s constitutional rights.  But if the police simply never read the suspect his rights, and never question him while in custody, then there is no violation of his rights, and consequently no remedy.


Rep. Mark Patterson. Innocent men never plead guilty?



innocent sound

Recently in the news, it was reported that a republican law maker in Idaho, Mark Patterson, plead guilty to “assault with the intent to commit rape” in 1974.  Apparently he was charged with the crime of rape after a woman accused him of forcing her into his home, and threatening to release his dog on her should she refuse to have sex with him.  It was reported that he claimed that she had consensual sex with him, and that she asked for money afterwards and he refused, so she fabricated the story of him raping her in retaliation.

I am not in a position to judge the merits of the case, but the story brings up interesting issues that I am prepared to talk about.  Mr. Patterson claims that he plead guilty of a lesser charge to avoid the risk of being convicted of rape and receiving jail time.  He also received a ‘withheld judgment‘ as part of the plea deal.

So do innocent people plead guilty?  As I’ve read comments from the public, one theme is repeated over and over, “innocent people do not plead guilty”.  But is that true?  Is it really true that every innocent person takes his case all the way through trial if the case is not dismissed by the prosecuting attorney?  Why would an attorney allow his client to plead guilty if his client was not guilty.

In a perfect world every wrongfully charged defendant would have his case dismissed, and every attorney would have a crystal ball to see whether his client is really guilty or innocent, but unfortunately we don’t live in a perfect world.

We live in a world where people do make false accusations, where weak cases based on weak evidence are pressed by the State despite the weakness of the case, where juries sometimes make the wrong verdict, where Defendant’s claim innocence when they are in fact guilty, and where Defendant’s plead guilty when they are in fact innocent.

Attorneys have to evaluate a case based on the evidence before them, and many cases are based on the testimony of witnesses.  Those witnesses almost always disagree with each other.  As an attorney I will have a client tell me that he didn’t do the thing he is accused of, but there are witness statements claiming that he did.  I interview the witnesses, and try to evaluate the likelihood that a jury would believe them over my client.  I look for witnesses who will support my clients case.  In the end, almost every jury trial is risky.  A jury will have to decide which witnesses to believe, and there is always a risk that the jury will believe the State’s witnesses.  With risks like this, and so much to lose, Defendant’s will sometimes cut their losses, and avoid the risk of going to trial.  In cases of “he said/she said”, attorneys are not in a position to decide definitively the innocence or guilt of their client.  If they knew for a fact that their client was innocent, then of course they should not advise their client to plead guilty.  But more often than not, an attorney can only judge risk based on what the attorney knows, and since the attorney was not present during the allegations, he cannot know for certain.

An innocent man cannot know for certain whether he will be convicted or not.  When a jury has to make a decision based purely on witnesses testimonies, there is always a risk that the jury will believe the State’s witnesses over the Defendant’s witnesses.  This risk is one of the driving forces behind Defendant’s pleading guilty, whether they are innocent or guilty of the charges.  It is conceivable in Mr. Patterson’s case for example that he was given an offer too good to pass up, a reduced charge of assault with intent to rape, a withheld judgment, and no additional jail.  Mr. Patterson probably knew that if he were to refuse the offer and go to trial on the Rape charge, and if he lost, he would probably go to prison, and would not receive a withheld judgment.  If he took the offer his case would be dismissed after a period of probation.  The offer may have been too good to pass up.  The risk of going to trial was too great.  And Mr. Patterson’s attorney could not have known for sure that his client was indeed innocent, and therefore probably advised his client that the deal was a good deal, and that he should probably take it.  Not to mention, he knew the case would ultimately be dismissed in the end.

One thing you can know for sure, at least in 2013 in Idaho, the State would never offer a withheld judgment, no jail and a reduced charge of assault with intent to commit rape, on a strong rape case.  If the State had solid evidence, they would push forward on the Rape Charge, a judgment of conviction, and would likely seek a prison sentence.  The fact that Mr. Patterson received such a soft sentence is actually an indication that the State’s evidence against him was not overwhelming.

Another reason a Defendant may plead guilty even when he is innocent is because he is incarcerated, and the State has offered to release him after he enters a guilty plea.  It’s hard for those who have never been to jail to understand the stress and agony that someone in custody feels.  Many inmates are somewhat out of their minds while in jail.  It is, for most Defendants, the worst experience of their life and their desperation will often lead them to plead guilty even when they are innocent.  This is one of the unfortunate results of the requirement that the accused be held in custody during the pendency of their case if they cannot afford to post the bond.  It has the effect of putting the Defendant under duress to plead guilty, whether that is the intended effect or not.

Like I said, I am not in a position to judge the merit’s of Mr. Patterson’s case.  It appears that these allegations may have not been the only allegations Mr. Patterson faced, which may lead some to say lightening rarely strikes in the same place twice.  I am only offering a response to those who say “innocent men never plead guilty”.



What is the difference between a criminal charge and a traffic ticket?

The other day I got a phone call and the prospective client told me they had a traffic ticket they needed me to handle.  My first thought was, oh they must have gotten a speeding ticket, which is an infraction in the State of Idaho.  I don’t normally handle infractions, since they usually involve paying a $50-$100 fine, and nothing more.  Clients don’t normally hire me to handle such marginal cases.  But the client proceeded to tell me that they had been arrested on suspicion of driving while under the influence.  I knew then that they had not simply gotten a “traffic ticket” or “infraction”, they had been charged with a misdemeanor criminal charge.

This wasn’t the first time I had someone call me and indicate that they had been charged with an infraction or traffic ticket, when in fact they and been charged with a criminal charge. This is a common and frequent mistake.  Most commonly made when someone gets a reckless driving, inattentive driving, or driving without privileges charge.  They go to the court to pay the ticket, and are told that they must see a judge first, that is when they usually realize they have a serious problem.

So what is the difference between a misdemeanor and an infraction?

According to Idaho Code 18-111 an infraction is a “civil public offense, not constituting a crime, which is punishable only by a penalty not exceeding one hundred dollars ($100) and for which no period of incarceration may be imposed.”  So in other words, an infraction carries no possibility of jail.

So any case that requires any possibility of a jail sentence is a misdemeanor (or of course possibly a felony).  You may think, well I don’t drink, I don’t get into fights, and I never steal anything, so I will never have to worry about jail.  Guess again.  I have represented not just a few clients for charges like dog at large, dog nuisance, fish and game violations, trespassing, and many other types of cases that most people would think would be charged as infractions when they are charged as misdemeanors and carry potential jail time.  Most of these clients have no criminal history, and never been inside a court room.  So do not think it cannot happen to you.

If you’ve received a “ticket” from a police officer lately, and you think it’s an infraction, an unless it’s a speeding ticket or something similar, you should call an attorney to make doubly sure that it’s not a misdemeanor criminal charge.  You can call our office at 208-571-0627 and we can help you figure it out.


When can the police come into my home?


For those who follow my blog, you may get the sense that I am less than enthusiastic about the status of our rights in the United States today.  Many of the laws and principles that secured our rights in the past have been eroded away by exceptions to laws that are designed to protect those rights.  Automobile exceptions to the warrant requirement are an excellent example of the erosion of our right to be free from warrantless and unreasonable searches and seizures in our automobiles.  We can thank the war on drugs for that. Continue reading

Do I have to show identification to a Police Officer in Idaho?


A frequent question I am asked by friends, family, and clients is “Do I have to provide my driver’s license, or other identification, to a police officer if they ask me for it?”  In other words they want to know if they have a right to refuse to provide their driver’s license, or other identifying information, to the police officer.  The simple answer is you probably have to provide your identification to the police officer in most circumstances.  Read on for a more thorough answer. Continue reading

I Have an Idaho Arrest Warrant, but Live Out of State, What Can I Do?


A common dilemma I get called about frequently is what to do when an arrest warrant has issued for you in Idaho, but you do not live in Idaho.

This occurs under a couple different scenarios.  Some Defendant’s get placed on probation in Idaho, and receive a probation violation either before or after leaving Idaho.  A warrant issues for the Defendant’s arrest.  The other example is when someone obtains a new criminal charge and then leaves the State of Idaho after being charged and fails to appear for their next court date.  A warrant issues. Continue reading

What happens to my driver’s license after a DUI?


One of the most immediate impacts on your life when you are charged with a DUI is the license suspension.  Not being able to drive, especially in Idaho, would be crippling to anyone’s life.  You cannot get to work, you cannot take your children to school, you cannot go to the doctor, you cannot get groceries.  We do not live in New York City, there is not an abundance of public transportation here.  So the first thing on someone’s mind when they have been charged with a DUI in Idaho is, what is going to happen to my driver’s license? Continue reading