Second Amendment: Domestic Violence Misdemeanants Suffer More than Convicted Felons

by Tim Baldwin

The Second Amendment of the United States Constitution protects the people’s right to keep and bear arms. The issue of firearm possession and use was not highly regulated and litigated prior to the 20th century. Since then, state and federal governments have passed many laws regarding the use of firearms. Over the decades, the judiciary has ruled on many issues and explained how the state and federal legislatures may restrict the use of firearms. The judiciary has developed rules of constitutional construction to determine whether laws regulating firearms are constitutional or not. One federal law that has been litigated frequently is 18 USC 922.

Under 18 USC 922, Congress made it unlawful for persons convicted of felonies and misdemeanor domestic violence to own, possess, transport, and ship firearms (see definition of “firearm,” 18 USC 921(a)(3)). However, Congress carved out exemptions to this prohibition in 18 USC 921; namely, where the person has his conviction pardoned, set aside, expunged or had his civil rights completely restored. If the State imposes any restrictions on his right to possess a firearm (e.g. cannot carry concealed), his rights are not fully restored (see discussion below regarding carry concealed permit).

This exemption clause raises a big question, particularly for people convicted of misdemeanor domestic violence (misdemeanants). That issue is this: what if the misdemeanor conviction for domestic violence does not divest or affect the rights of the person? In other words, what happens to the misdemeanant’s ability to “restore his civil rights” when his rights were never divested in the first place?

The misdemeanant can qualify for the exemption clause, but not on the basis that his rights were restored. Instead, he may qualify under the exemption clause only if he receives a pardon, expungement or setting aside of the conviction. These options pose a big problem for the misdemeanant, however, because it is more difficult to get a pardon than it is to restore a person’s rights, and sometimes, expungement and setting aside convictions are impossible.

In many states, a convicted felon’s civil rights are automatically restored once he completes his sentence. For example, Montana’s constitution and statute state that a person whose civil rights are disabled due to a felony conviction has his rights automatically restored once he successfully completes his sentence.

Thus, if a person is convicted of, say, felony theft and he completes his sentence, his rights are automatically restored, and he can apply for a concealed weapon permit or purchase a firearm because his rights are restored and thus, he qualifies for the exemption clause under 18 USC 921.

However, Montana residents need to be aware of this: if the charge for which the person was convicted has an element of committing or attempting to commit one of the following acts, then he cannot obtain a concealed carry weapon permit (CCW) under Section 45-8-321, MCA: intentional homicide, serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent. This CCW restriction means that such a person convicted of committing one of those acts cannot qualify to own or possess a firearm under federal law, because his firearm rights are restricted. This means his civil rights have not been fully restored, and thus he does not meet the exemption under 18 USC 921.

Going back to the misdemeanant convicted of domestic violence: he cannot have his rights automatically restored because he never lost his civil rights. So, to meet the exemption clause, he must alternatively have his conviction pardoned, expunged, or set aside.

This takes affirmative action to petition the executive branch of the state government to pardon his conviction, or the judiciary branch to expunge or set aside his conviction. This is easier said than done and much more difficult than having one’s rights restored automatically by operation of law.

First, to receive a pardon, the misdemeanant must file a petition with the executive branch (each state has its own process). The governor has discretion on whether to pardon the conviction or not. As one can imagine, pardons are not given arbitrarily. Next, for expungements, the judiciary can do this only if state law permits it. Many states do not permit expunging convictions except in limited circumstances. Finally, to set aside a conviction, there must be some constitutional or legal grounds to request this from the court; for example, the defendant did not enter his plea of guilty “freely, voluntarily and knowingly,” the sentence imposed was illegal or there was some fundamental unfairness. As one can imagine, proving these elements to set aside a conviction is very difficult.

This leaves the misdemeanant with the primary and perhaps only option of petitioning for a pardon. The chances of success with receiving a pardon are obviously lower than the convicted felon who has his rights automatically restored.

This disparity seems fundamentally unfair, but the Ninth Circuit Court of Appeals confirmed that it is constitutional. Here is what the court said in U.S. v. Chovan on the issue.

We rejected Brailey’s argument, concluding that his civil rights had never been “lost” because his misdemeanor conviction had not taken away his “core civil rights”: the right to vote, to sit as a juror, or to hold public office. Because Brailey’s civil rights had never been lost, we reasoned that they could not have been restored. We noted that most other circuits had also concluded that, “where civil rights are not divested for misdemeanor convictions, a person convicted of a misdemeanor crime of domestic violence cannot benefit from the federal restoration exception.” Thus, we concluded that Brailey failed to meet § 922(g)(9)’s civil rights restored exception

United States v. Chovan, 735 F.3d 1127, 2013 U.S. App. LEXIS 23199, 2013 WL 6050914 (9th Cir. Cal. 2013) (citations omitted). The Chovan court continued its analysis of this issue, stating,

Applying rational basis review, we rejected Hancock’s equal protection claim. First, we explained that when Congress enacted § 922(g)(9), it “was aware of the discrepancies in state procedures for revoking and restoring civil rights . . . . [D]isparate treatment of some offenders was the inevitable result of Congress’ decision to ‘look to state law to define the restoration exception.'”  Second, we noted that in addition to the civil rights restored exception, § 922(g)(9) provides “several adequate legal mechanisms” for which both misdemeanants and felons can qualify: “pardon, expungement, and setting aside of convictions.” Viewing the two exceptions together, we found that “Congress reasonably could conclude that felons who had been through a state‘s restoration process and had regained their civil rights . . . were more fit to own firearms than domesticviolence misdemeanants who had not had their convictions expunged or been pardoned.” Id. We therefore upheld the civil rights restored exception under rational basis review as at least “minimally rational.”

Here, we apply Brailey and conclude that Chovan’s 1996 misdemeanor domestic violence conviction did not divest him of civil rights because it did not divest him of the right to vote, the right to serve on a jury, or the right to hold public office. Because Chovan never lost these “core” civil rights, he cannot qualify for the civil rights restored exception to § 922(g)(9). Further, we reject Chovan’s argument that the civil rights restored exception violates the Equal Protection Clause for the same reasons we articulated in Hancock.

(citations omitted).

To recap, a convicted felon (in states were rights are automatically restored upon completion of his sentence) is in a better position to meet the exemption clause under 18 USC 921 than a misdemeanant convicted of domestic violence (in states where the conviction does not divest the misdemeanant of his civil rights). While the misdemeanant may still seek the other exemptions (pardon, expungement, setting aside conviction) if available under state law, the chances of success are less than the automatic restoration of civil rights allowed by some states (e.g. Montana).

For convicted felons who are denied a CCW or purchase of a firearm, the denial may be illegal or unconstitutional, depending on the circumstances. There are ways of challenging and appealing these denials, but they must be determined on a case by case basis.

If you need to consult with an attorney on your gun rights, call Tim Baldwin (406-248-7000) or email him at timbaldwin@outlook.com.

Who Do You Trust?

by Tim Baldwin

I have practiced law now for 13 years and have helped hundreds of clients and worked as a public employee for 4 of those years. I have learned that there is one major reason that drives most people to hire a particular attorney: trust.

When people come to an attorney for legal help, they are normally very anxious, nervous, upset and do not know what to expect. They simply know they need help. Many of them have an innate fear that they will not be treated fairly. They think that their own attorney could play a part in their not being treated fairly. Of course, many attorneys help contribute to this distrust in the legal system, and since the potential client normally does not know the attorney personally, he enters the attorney-client relationship without a full reliance on the attorney’s work and advice.

So, how does a client come to reasonably trust his attorney so that he can rely on his advice and make good decisions in his case? Consider a number of ways to make that determination.

First, consider the attorney’s reputation. Admittedly, reputation is subjective and depends on the person you ask, but it can be helpful. For example, in criminal cases, defense attorneys may be disliked among some police and prosecutors because the defense attorney’s job is to test the credibility of, many times, public employees, such as police officers. If you challenge the credibility of a police officer, prosecutors can take this personally because police and prosecutors are a sort of team.

To challenge police is, in a sense, challenging prosecutors themselves because prosecutors rely on the testimony and investigations of police to prosecute crimes. Naturally, prosecutors who file criminal charges based on the work of police will resist any notion or claim that police or their investigation is unreliable and incredible.

So, if a defense attorney has a not-so-good “reputation” among prosecutors or police, this may not necessarily be a bad thing. Just the opposite: it may be the kind of defense attorney a person needs who is being prosecuted by the government. So, as they say, consider the source when learning about an attorney’s reputation.

Second, consider the attorney’s prior work for other clients. Most of the time, a potential client does not have the ability to conduct an investigation into the prior cases of an attorney, but the client can inquire at a consultation of the attorney’s prior cases and ask how he handles his cases. The attorney should be able to give examples of how the attorney puts his client’s interests before his desire to be liked by everyone in the legal system.

The attorney should be able to point to specific cases where the attorney had to challenge the government (or opposing party) for his client, even where it causes those in government or in the legal community not to like that attorney for his zealous representation of his clients. If the potential client can see that the attorney holds his client’s interests in the highest regard, he will be more likely to trust the attorney and what he advises during the case.

Third, consider the attorney’s forthrightness in assessing the case. Most people seeking legal advice want to hear the attorney tell them that they are right in every regard and that there are no weaknesses in their case. This is hardly reality. In almost every case, there are weaknesses that could have a negative impact on the client’s case.

An honest attorney will assess the case from an objective standpoint and inform the client of the hurdles and possible outcomes. A trustworthy attorney is not necessarily one that tickles the ears of his clients but is rather one who tells the client realities that the client needs to hear, even though it may cause the client to find another who will be less than objective in his analysis.

Fourth, consider any ethics complaints and determinations made by the Office of Disciplinary Counsel. These determinations may not be a tell-all of the attorney because we all make mistakes and even judges can judge incorrectly. But the complaints may reveal the character of the attorney where the determinations involve the honesty of the Attorney and how he treats his clients.

Fifth, consider the attorney’s community involvement. With whom does the attorney associate or identify? If the attorney’s primary associations do not reflect that he identifies with the community in common or reflect that he prefers only the rich and powerful, it may be an indication that his goals in life have more to do with his desire to be successful than it does looking out for ordinary folks who simply need an attorney to identify with them and their plight and to fight for their cause.

Sixth, consider the number of trials the attorney has tried. Trials are very hard and exhausting. Many attorneys do not like going to trial for that reason and will attempt to avoid them if at all possible. If the attorney has no record of going to trial to fight for his clients, it may be an indication that the attorney will always advise his client to settle simply to avoid the hard work of going to trial.

Seventh, consider how the attorney attempts to keep the client involved in his case. Practicing law is a mixture of art and science because it is based on knowing the law, how the legal system works and how human nature affects the perceptions of all people involved. If the attorney works hard at keeping his clients informed about the case given all of these factors, it may be an indication that the attorney wants the client to be as well equipped as possible to make a good decision and not simply based on what the attorney says is a good decision.

Eighth, consider how the attorney listens to you. If the attorney thinks more of himself than he does the client, it may be an indication that the attorney’s primary interest is not the client.

In conclusion, the best way the attorney-client relationship works is for the client to trust the attorney and the attorney to honor his duty of loyalty to his client. The client should conduct as much of an inquiry as possible when choosing his attorney. The above considerations are a number of ways to do that.

If you need to consult with an attorney about your legal issue, call Tim Baldwin at (406) 248-7000 or email him at timbaldwin@outlook.com.

Wrongful Termination of Employment Cases

Under the Montana Wrongful Discharge Act (MWDA), an employer cannot terminate an employee except for good cause. Otherwise, the employment termination is wrongful with remedies available to the employee.

Section 39-2-904, MCA defines wrongful termination this way:

(1) A discharge is wrongful only if:

(a) it was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;

(b) the discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or

(c) the employer violated the express provisions of its own written personnel policy.

Below is discussed a few of the issues that commonly arise in wrongful termination cases. (For a detailed discussion of issues, see William Corbett, Resolving Employee Discharge Disputes Under The Montana Wrongful Discharge Act (MWDA), Discharge Claims Arising Apart From The MWDA, And Practice And Procedure Issues In The Context Of A Discharge Case, 66 Mont. L. Rev. 329).

Good Cause

“‘Good cause’ means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.” Whidden v. John S. Nerison, Inc., 1999 MT 110, P12, 294 Mont. 346, 349, 981 P.2d 271, 273 (Mont. 1999). “The most common legitimate reasons for a discharge are based on: (1) employee conduct-employment ‘rule’ violations and/or failure to perform in conformity with the employer’s legitimate expectations ; and (2) business needs unrelated with employee conduct (e.g., economic slowdown resulting in layoffs, business reorganization resulting in loss of positions, contracting out the work resulting in loss of positions, etc).” Corbett, Resolving Employee Discharge Disputes, 66 Mont. L. Rev. at 337.

Discharge

The MWDA defines “discharge” as constructive discharge or any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and other cutbacks in the number of employees for legitimate business reasons. Section 39-2-903(2), MCA. This definition includes two kinds of discharge: (1) where the employer severs the employment relationship, and (2) in the case of constructive discharge, where the employee severs the relationship.

Actual discharge is apparent because it happens when the employer terminates the employment. On the other hand, constructive discharge “means the voluntary termination of employment by an employee because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative.” Section 39-2-903, MCA. But “[c]onstructive discharge does not mean voluntary termination because of an employer’s refusal to promote the employee or improve wages, responsibilities, or other terms and conditions of employment.” Id.

“In determining whether an employee has been constructively discharged, the fact finder must decide whether the employer has rendered working conditions so intolerable that resignation is the only reasonable alternative. This determination must be based on the totality of the circumstances, not on the employee’s subjective judgment that working conditions are intolerable.” Jarvenpaa v. Glacier Elec. Coop., 898 P.2d 690, 691, 1995 Mont. LEXIS 135, *1, 271 Mont. 477 (Mont. 1995). “A determination of constructive discharge ‘depends on the totality of circumstances, and must be supported by more than the employee’s subjective judgment that working conditions are intolerable.’” Kestell v. Heritage Health Care Corp., 259 Mont. 518, 524, 858 P.2d 3, 7 (Mont. 1993). A demotion is not considered a “discharge” but potentially could qualify for hostile work environment depending on the circumstances.

Probationary Period

Employees on probation may be terminated at will by the employer or employee for any or no reason at all. “[The] employer must define the probationary period at the outset of an employment relationship, and the employer has the burden of showing that a probationary period was in effect at the time of a discharge.” Hunter v. City of Great Falls, 2002 MT 331, P16, 313 Mont. 231, 235, 61 P.3d 764, 767 (Mont. 2002) (citations omitted).

Probationary periods are presumed to be six months but can be longer if it is specifically stated upon hire. See Mitchell v. V-1 Propane, 19 Mont. Fed. Rep. 409 (1995). Also, an employer may extend the employee’s probation period to determine the employee’s competence if the employee’s performance during his probation is unsatisfactory. See Hunter, PP 13, 18.

In general, a probationary employee may still bring a claim for a “public policy” violation or a violation of the employer’s own written “personnel policies.” The Montana Supreme Court has stated,

The statutory prohibition on termination in retaliation for the employee’s refusal to violate public policy does not distinguish between probationary and non-probationary employees. Section 39-2-904(1), MCA. In fact, as long as an employer’s conduct is consistent with the employer’s personnel policies, the only basis for challenging the discharge of a probationary employee is that the employer discharged the employee in retaliation for refusing to violate public policy or for reporting a violation of public policy.

Motarie v. Northern Mont. Joint Refuse Disposal Dist., 907 P.2d 154, 156, 1995 Mont. LEXIS 270, *6, 274 Mont. 239 (Mont. 1995). One distinction to be made here, however, is that public employees may be precluded from bringing any of the three claims for relief. See Ritchie v. Town of Ennis, 2004 MT 43, 320 Mont. 94, 86 P.3d 11.

Remedies

If an employee is wrongfully terminated, his damages are limited to 4 years lost wages and benefits and reasonable costs for finding new employment, minus the wages he earned or could have earned with reasonable diligence during that time. Section 39-2-905 provides for the employee’s remedies in a wrongful termination as follows.

(1) If an employer has committed a wrongful discharge, the employee may be awarded lost wages and fringe benefits for a period not to exceed 4 years from the date of discharge, together with interest on the lost wages and fringe benefits. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages. Before interim earnings are deducted from lost wages, there must be deducted from the interim earnings any reasonable amounts expended by the employee in searching for, obtaining, or relocating to new employment.

(2) The employee may recover punitive damages otherwise allowed by law if it is established by clear and convincing evidence that the employer engaged in actual fraud or actual malice in the discharge of the employee in violation of 39-2-904(1)(a).

(3) There is no right under any legal theory to damages for wrongful discharge under this part for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in subsections (1) and (2).

An employee has one year from the date of discharge to file a lawsuit for wrongful termination. Some employers have employees agree to follow an employee handbook as a condition of hiring or during employment. Employee handbooks sometimes requires a discharged employee who seeks remedy to follow internal procedures with the employer before being able to file a civil lawsuit against the employer for wrongful termination. Generally speaking, the one year statute of limitations is tolled during the internal procedures. Section 39-2-911, MCA prescribes the procedures in this regard, stating,

(1) An action under this part must be filed within 1 year after the date of discharge.

(2) If an employer maintains written internal procedures, other than those specified in 39-2-912, under which an employee may appeal a discharge within the organizational structure of the employer, the employee shall first exhaust those procedures prior to filing an action under this part. The employee’s failure to initiate or exhaust available internal procedures is a defense to an action brought under this part. If the employer’s internal procedures are not completed within 90 days from the date the employee initiates the internal procedures, the employee may file an action under this part and for purposes of this subsection the employer’s internal procedures are considered exhausted. The limitation period in subsection (1) is tolled until the procedures are exhausted. In no case may the provisions of the employer’s internal procedures extend the limitation period in subsection (1) more than 120 days.

(3) If the employer maintains written internal procedures under which an employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days of the date of the discharge notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of them. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (2).

At the time of discharge, the employee has the statutory right to demand the employer to provide a written statement for his discharge. Section 39-2-801(1), MCA says,

It is the duty of any person after having discharged any employee from service, upon demand by the discharged employee, to furnish the discharged employee in writing a statement of reasons for the discharge.

This demand must also advise the employer that the statements can be used against the employer in a lawsuit. Section 39-2-801(2), MCA says, “A written demand under this part must advise the person who discharged the employee of the possibility that the statements may be used in litigation.” This same statute also prohibits an employer from blacklisting the employee if the employer “refuses to [provide a written statement of the reasons for termination] within a reasonable time after the demand.” Id.

The employer’s response “may be modified at any time and may not limit a person’s ability to present a full defense in any action brought by the discharged employee. Failure to provide a response as required under subsection (1) may not limit a person’s ability to present a full defense in any action brought by the discharged employee.” Section 39-2-801(3), MCA.

Another aspect of the employee’s remedies includes arbitration. Sections 39-2-914 and -915, MCA provide a way for the parties to arbitrate instead of litigate the dispute. If one party offers to arbitrate but the other party rejects the offer and later loses in a civil action, the prevailing party is entitled to reasonable attorney’s fees and costs incurred subsequent to the date of the offer.

Conclusion

Many employees are terminated without good cause. Under Montana law, these employees have a remedy for damages. Employees who have been wrongfully discharged should consult with an attorney experienced in this area of law because there are many issues to be addressed that have an impact on how the case should be handled to maximum the amount of damages the employee can recover for the wrongful termination.

If you need a consultation regarding your wrongful termination case, call Billings Legal at (406) 248-7000 or email Jeff Simkovic at jeff@billingslegal.net.

Why People Should Study Court Cases

by Tim Baldwin

Many, if not most, people (regardless of their profession and occupation) feel they have little power to change laws respecting the expansion of individual liberty and rights. Our laws are governed first by our constitutions: state constitutions control state laws and the United States Constitution controls federal laws–and to some degree, state laws. These fundamental documents provide the framework for how government operates and how laws are passed and enforced. The branch of government designed to pass laws is the legislative branch; the branch designed to enforce laws is the executive branch; and the branch designed to interpret and apply laws is the judicial branch. While these branches act independently of each other, the people have ultimate power to change how government operates and how laws can be applied.

Even though our constitutions provide the basic framework of government limitation, the practice of government and law reveals that the judicial branch has tremendous power to expound upon and apply constitutional provisions. Over time, court decisions put flesh on the bones of the constitution. The more general in nature the constitutional provision, the more flexibility courts have in interpreting and applying the law. Since there is more than one way of interpreting law, including our constitutions, the development of constitutional law can take a variety of twists and turns. The more time that passes, the more changes can be made by courts in applying our constitutions.

Thus, when it comes to limiting government power, the people may become dissatisfied with how courts interpret those laws designed to protect the people. This dissatisfaction could relate to how courts apply the Second Amendment—a more obvious and notable body of law to the public; but it may relate to a less-known body of law relative to criminal and civil procedure. For example, many people may not be aware of how federal courts have limited an accused’s rights of discovery in a criminal case until that person has been charged.

When people study court decisions, they can determine if they believe the court decisions on a particular area of law or concerning particular rights protect individual liberty and limit government sufficiently. When a sufficient number of people realize that the way court decisions have interpreted the constitution does not protect liberty or sufficiently limit government, they can educate others about that body of law and work to changing those court decisions.

So, how do the people change court decisions that do not sufficiently protect liberty and limit government? There are two basis ways. First, people can elect legislators who believe similarly and who are willing to pass legislation to effectively overturn court decisions through statute. While not all court decisions are subject to being overturned by statute, many decisions can be overturned by statute. Second, people can amend our constitutions to overturn bad court decisions. The Founding generation did this with, for example, the Eleventh and Fourteenth Amendment. The Eleventh Amendment to the USC amended a United States Supreme Court decision in Chisholm v. Georgia, 2 U.S. 419 (1793), which stated that States can be sued in their sovereign capacity by individuals. The Eleventh Amendment overturned that decision. The Fourteenth Amendment overturned, among other decisions, the United States Supreme Court decision in Dred Scott v. Sandford, 60 U.S. 393 (1857) that said black Americans could be denied citizenship.

While there are some who claim that all people have to do is “enforce” the constitution and that people need not amend the constitution or the law to correct court decisions, the practice and history of America’s constitutional system proves otherwise. The Founders and other pivotal generations knew this, which is why they amended the constitution.

People are the ultimate source of political power. The constitution was designed to create government, and government has certain powers to act regarding law. It so happens that the judicial branch is given the power to interpret and expound the meaning of the constitution, which James Madison and Alexander Hamilton recognized in the Federalist Papers. For example, Hamilton said, “[l]aws are a dead letter without courts to expound and define their true meaning and operation…Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations” (Federalist Paper 22).

Until the people make such changes in the law through statute or the constitution, courts will continue to expound the law within their powers. This means that every time issues are raised in court in an effort to more sufficiently limit government power, courts will decide the issue based on judicial methods of interpretation. One well-known way of interpreting law is by applying previous cases (known as precedent). Precedent is given heavy weight, especially when the precedent comes from a higher court. Thus, previous decisions that do not adequately protect liberty or limit government power will self-perpetuate, and people will have little success in changing the law to their benefit. People can argue all they want in court about how they believe the constitution should be applied, but their efforts will likely be fruitless in court.

In sum, people have a responsibility in a free society to study court decisions in all areas of law that affect our rights and liberty. When they realize that the courts’ decisions do not adequately protect our liberty and rights, the people have a duty to take necessary steps in changing that law through statutes or amending the constitution. When these changes are made to our system of government, it has tremendous impact in changing the course of how laws are applied. To do nothing about bad court decisions is to implicitly consent to how courts decide those issues.

Self-government: it’s a powerful concept, but it only works when people understand the system and do what it takes to change it.

If you need help with your criminal defense matter, email Tim Baldwin at timbaldwin@outlook.com.

Talk to Witnesses!

by Tim Baldwin

In my career as an attorney, fulfilling the role as both prosecutor and defense attorney, I have been baffled by the number of attorneys who do not take the time to talk to witnesses—not just obvious ones, but ones you discover were never disclosed by police or prosecutors. This lackadaisical approach to discovery is a critical mistake because with witnesses lies the key to evidence that will be presented in your client’s favor. In many cases, it is the difference between guilt and innocence.

Not all witnesses are cooperative. Thus, steps must be taken to secure their testimony for trial. Under Montana law, a criminal defendant has the right to interview relevant witnesses. If the witness refuses to give an interview, the defendant can move for a deposition of that witness. Most witnesses agree to give an interview, but for trial purposes the attorney needs the interview to be audio/video recorded and transcribed. Most witnesses will agree to an audio-recorded interview, but when a witness does not agree and the attorney does not know this beforehand, the attorney may be stuck with an interview in which he cannot prove the witness’s statements at trial. The interview, in that case, may be somewhat worthless except insofar as it gives the attorney information to proceed with further discovery.

To make the most use of his interview, the attorney should have a protocol and procedure to ensure he can obtain a recorded interview of the witness and a transcript for trial. Below is an example of the practice procedures an attorney can take for this purpose.

Witness Interview Procedure in Criminal Cases

1) Identify witnesses to be interviewed, their address, and their phone numbers.

2) Contact witnesses and ask if they are willing to interview at our office (indicate above).

3) Ask witnesses if they have any conditions they would like to assert to give in an interview (e.g., wants the prosecutor present). If conditions imposed, take notes.

4) Ask witnesses if they agree to an audio or video recorded interview.

5) If witnesses do not agree to a recorded interview:

a) schedule a court reporter to be present at the interview; and

b) secure an investigator to be present

6) If witnesses agree to an interview, send a Notice of Interview at their confirmed address indicating date, time, location of interview and anticipated length of interview.

7) If witnesses do not agree to interview:

a) contact prosecutor to schedule interview; and

b) ask prosecutor to confirm whether the witnesses agree to the interview being recorded. If witnesses do not agree:

i) schedule a court reporter to be present at the interview; and

ii) secure an investigator to be present

8) Before interview:

a) calendar for defense attorney to prepare

b) check with attorney about documents needing to be copied for ID purposes in interview

c) confirm with court reporter (if one is needed) his/her presence at the interview

9) After interview:

a) have recording transcribed (if no court reporter present), or order transcription if court reporter present

b) give copy of transcription and recording to opposing counsel

c) Request the prosecutor and/or witness to review the transcript and sign for accuracy

d) File notice of name of investigator and court report to witness list for trial

Using a comprehensive procedure for procuring witness testimony is crucial to being a good attorney. It is not only good practice to interview witnesses, it is also the attorney’s duty. Without knowing what information witnesses have regarding the action at issue, the attorney is likely relying on what the opposing attorney is saying about the facts and issues of the case—and obviously the opposing attorney is not looking out for your client’s interest. Practice right: interview witnesses.

If you need help with your criminal defense case, email Tim Baldwin at timbaldwin@outlook.com.

 

Search and Seizure: Exceptions to Warrant

by Tim Baldwin

In Montana and United States Constitutions, warrantless searches and seizures are per se invalid. However, there are several exceptions to this rule. The recognized exceptions to a warrantless search and seizure follow: (1) exigent circumstances existed; (2) the citizen gave voluntary and knowing consent for the officer to enter, search and seize; (3) the officers obtained evidence in “plain view”; (4) the officers obtained evidence under the Public Caretaker Doctrine; (5) the search was made pursuant to the Defendant’s terms of probation; and (6) the officers obtained evidence under the Inevitable Discovery Doctrine. I will explain each exception briefly.

Exigent Circumstances

Exigent circumstances have been defined as follows.

those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

United States v. Zermeno (9th Cir.1995), 66 F.3d 1058, 1063 (quoting United States v. McConney (9th Cir.1984), 728 F.2d 1195, 1199, cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)). Exigent circumstances are not a subjective determination. The officer must have facts to justify a search and seizure under the exigent circumstances exception.

Additionally, Montana law requires that the officers knock and announce their presence before a search. In State v. Hill, the Montana Supreme Court stated,

In Montana, the ‘knock and announce’ rule requires that government agents knock and announce their presence prior to entering an individual’s home without a warrant unless exigent circumstances are present.

Hill, 345 Mont. 95, 102, 189 P.3d 1201, 1207 (2008). The officer must have a reasonable belief to determine whether exigent circumstances exist. And “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Richards v. Wis., 520 U.S at 394 (1997). If no exigent circumstances and the officer did not knock and announce his presence to search, the officer cannot search person or property without a warrant.

Consent

The Montana Supreme Court has set forth the factors used to determine whether consent was given voluntary and without coercion. It stated the following in State v. Munson as follows.

This test focuses on “the nature of [the individual’s] subjective understanding,” Schneckloth, 412 U.S. at 230, 93 S. Ct. at 2049, which in turn depends on “the characteristics of [the individual] and the details of the interrogation,” Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047. A number of considerations are pertinent to this inquiry, such as whether the individual was in custody or under arrest at the time consent was requested; whether consent was sought after the search had already been conducted; whether the individual was expressly informed that he or she had the right not to consent to the search; whether the individual was told that a search warrant could be obtained; whether the individual was advised of his or her constitutional rights; the repeated and prolonged nature of the questioning; the individual’s age, education, and intelligence; and whether the individual was threatened or coerced in any manner.

Munson, 2007 MT 222, P51, 339 Mont. 68, 169 P.3d 364, 2007 Mont. LEXIS 403 (Mont. 2007). Where the State cannot prove that consent was given voluntary and knowingly, the officer’s search of that person or property is illegal and must be suppressed.

Along with the rule of consent, the Montana Supreme Court has ruled that, in cases where an officer observes evidence of a person who is in a place of privacy, that person must have knowingly exposed himself to the public for the officer’s observations to be admissible. The Montana Supreme Court said,

[P]ersons have an actual (subjective) expectation of privacy…within the confines of their private homes and enclosed structures and which they do not knowingly expose to the public.

State v. Siegal, 281 Mont. 250, 275, 934 P.2d 176, 191, 1997 Mont. LEXIS 39, 48, 54 Mont. St. Rep. 158 (Mont. 1997); see also, State v. 1993 Chevrolet Pickup, 2005 MT 180, P14, 328 Mont. 10, 15-16, 116 P.3d 800, 804 (Mont. 2005) (“Voluntary relinquishment of one’s interest in an item or one’s control over that item is akin to the legal concept of abandonment”); State v. Wilson, 218 Mont. 359 (Mont. 1985).

If a person does not give voluntary and knowing consent, the officer cannot search without a warrant. And unless a person exposes himself knowingly to the public, the officer’s observations of that person inside a place of privacy are inadmissible.

Plain View Doctrine

The Montana Supreme Court in State v. Lewis, (Mont. 2007) stated the Plain View Doctrine this way:

the plain view doctrine…“allows peace officers, under certain circumstances, to seize evidence in plain view without a warrant.” State v. Loh, 275 Mont. 460, 468, 914 P.2d 592, 597 (1996). If, while a law enforcement officer is lawfully present on an individual’s property, and in the course of his or her lawful presence, the officer discovers evidence in plain view, and if its incriminating nature is “immediately apparent,” then that evidence may be seized and used against the defendant at trial.

Id., 2007 MT 295, P22, 340 Mont. 10, 17-18, 171 P.3d 731, 737 (emphasis added). In short, if an officer is not a place lawfully to begin with, nothing he observes in plain view is admissible. For example, say an officer views illegal drugs on a person’s kitchen counter, but the officer is not in the house lawfully, then the officer’s “plain view” observations are illegal. The officer’s presence must be lawful before his “plain view” is admissible.

Caretaker Doctrine

The Montana Supreme Court described the Caretaker Doctrine this way.

The community caretaker doctrine, like the Terry investigative stop, is a recognized exception to the Fourth Amendment’s and Article II, Section 11’s prohibitions against unreasonable searches and seizures. Lovegren, PP 16-17. This doctrine is operative in cases where law enforcement initiates contact with a citizen not in order to investigate the commission of a crime, but to investigate a potential vehicle accident, or otherwise ensure the safety of citizens.

State v. Graham, 2007 MT 358, P25, 340 Mont. 366, 373, 175 P.3d 885, 890, 2007 Mont. LEXIS 612, 13-14 (Mont. 2007). The Montana Supreme Court has stated further,

once…the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure implicating not only the protections provided by the Fourth Amendment, but more importantly, those greater guarantees afforded under Article II, Sections 10 and 11 of the Montana Constitution as interpreted in this Court’s decisions.

Graham, 340 Mont. at 373, citing State v. Lovegren, 2002 MT 153, 310 Mont. 358, 51 P.3d 471, 2002 Mont. LEXIS 315 (Mont. 2002). If the officer makes contact with a person under the Caretaker Doctrine, he must not be investigating the commission of a crime and must be making contact only to investigate a citizen’s peril. Then, once the officer sees that no peril exists, he must cease his contact. Any evidence the officer observes from the pretense of “caretaker” is illegal and inadmissible.

Probationer

The Montana Supreme Court has explained the general rule of law regarding the search of a probationer this way:

The search of a person may be conducted pursuant to a valid search warrant or in accordance with a judicially recognized exception. Section 46-5-101, MCA. In Montana, a probation officer may search a probationer’s residence without a warrant so long as the officer has reasonable cause for the search. See State v. Roper, 2001 MT 96, P12, 305 Mont. 212, P12, 26 P.3d 741, P12; State v. Beaudry, 282 Mont. 225, 228, 937 P.2d 459, 460-61 (1997); State v. Burchett, 277 Mont. 192, 195, 921 P.2d 854, 856 (1996); State v. Boston, 269 Mont. 300, 305, 889 P.2d 814, 817 (1995); and State v. Burke, 235 Mont. 165, 169, 766 P.2d 254, 256-57 (1988). “The ‘reasonable cause’ standard is substantially less than the probable cause standard required by the Fourth Amendment because of the probationer’s diminished expectation of privacy . . . .” Burchett, 277 Mont. at 195-96, 921 P.2d at 856 (citing Burke, 235 Mont. at 169, 766 P.2d at 256-57, and Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987)). Admin. R. M. 20.7.1101(7) further underscores our precedent by permitting a warrantless search of a probationer’s or parolee’s person, vehicle or residence only “upon reasonable cause.”

State v. Moody, 2006 MT 305, P12, 334 Mont. 517, 521, 148 P.3d 662, 665, 2006 Mont. LEXIS 635, 5-6 (Mont. 2006) (emphasis added). There are many issues that surround these kinds of searches. Suffice it to say, searches may be illegal against a probationer if the search was not conducted by the probation officer, was conducted not according to the terms of the sentence order (e.g. not at the probationer’s home, not his vehicle), and was conducted to investigate a new crime.

Inevitable Discovery Doctrine (IDD)

The Montana Supreme Court has adopted the United States Supreme Court’s definition of the IDD:

It is clear that the cases implementing the exclusionary rule begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity. Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means–here the volunteers’ search–then the deterrence rationale has so little basis that the evidence should be received.

State v. Ellis, 2009 MT 192, P54, 351 Mont. 95, 111, 210 P.3d 144, 154-155, 2009 Mont. LEXIS 226, 32-33 (Mont. 2009), quoting Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377, 1984 U.S. LEXIS 101, 52 U.S.L.W. 4732 (U.S. 1984).

In explaining the IDD the Montana Supreme Court recognized, “inevitable discovery most often applies when the investigatory procedures were already in progress prior to the illegal search.” Ellis, 351 Mont. at 111. The Court in Ellis showed, “evidence seized [that] was not the inevitable product of a legal search already in progress” does not qualify under the IDD. The Court explained the facts for its ruling as follows.

The police who responded to Ellis’s residence had no authority to search any part of his home, much less seize evidence of a crime which he allegedly committed; the officers were not involved in a legal search already in progress when they seized evidence from S.S.’s bedroom and person.

Ellis, 351 Mont. at 111. The Court reasoned that conducting searches where a warrant is needed prevents the State from using any evidence obtained from the illegal search under the IDD. The Court in Ellis used a Ninth Circuit Court of Appeals case to explain its ruling, stating,

In Mejia, the Ninth Circuit Court of Appeals rejected the contention that the inevitable discovery doctrine applied where law enforcement officers had probable cause to conduct a search, but simply failed to obtain a warrant. Mejia, 69 F.3d at 319. In so holding, the Court of Appeals explained that it has never applied the inevitable discovery exception

“so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant. As we stated in Echegoyen, to ‘excuse the failure to obtain a warrant merely because the officers had probable cause and could have obtained a warrant would completely obviate the warrant requirement.’”

Mejia, 69 F.3d at 320 (citing Echegoyen, 799 F.2d at 1280 n. 7; United States v. Johnson, 22 F.3d 674, 683 (6th Cir. 1994)). The Court of Appeals further stated:

“If evidence were admitted notwithstanding the officers’ unexcused failure to obtain a warrant, simply because probable cause existed, then there would never be any reason for officers to seek a warrant. To apply the inevitable discovery doctrine whenever the police could have obtained a warrant but chose not to would in effect eliminate the warrant requirement.

“We are neither free nor willing to read the warrant requirement out of the Constitution. Accordingly, even if we assume that the detectives were in possession of competent evidence showing probable cause at the time of the search, the inevitable discovery doctrine would not justify introduction of the evidence seized without a warrant.”

Ellis, 351 Mont. at 112. Like the Plain View Doctrine, the officers must have been in a lawful search for this doctrine to apply. If the officer did not have a lawful reason to be present or to be searching to begin with, then no evidence discovered as a result of his presence and searching is admissible.

Conclusion

The Montana and United States Constitutions require warrants for searches and seizures, but you can bet that officers and prosecutors will try to use these exceptions where they can. Many times, people do not know their rights in these areas and give them up too eagerly thinking that the officers will help them later. Had these citizens simply reserved their rights, they would be in a much better position. Search and Seizure law comprises the bulk of criminal law. Suffice to say, if you have been charged with a crime and the officers have conducted any searches and seizures, you need to consult with any attorney about your case.

If you have been charged with a crime and need a criminal defense attorney, email Tim Baldwin at timbaldwin@outlook.com.

Restoring Gun Rights

by Tim Baldwin

Every person has the right to keep and bear arms. This is a fundamental right protected by the second amendment of the United States Constitution. This right, however, can be revoked or otherwise curtailed depending on constitutional laws that restrict that right.

In Montana, the state constitution provides that your right to own and possess and firearm is restored when you successfully complete your sentence. However, under federal law, restoring your right to possess a firearm is not absolute and conditional.

Under 18 USC § 922, a person who is convicted of a crime punishable by imprisonment for a term exceeding one year loses his right to possess a firearm. There are other ways to lose the right to possess a firearm, such as,

  • being adjudicated as a mental defective;
  • discharged from the Armed Forces under dishonorable conditions;
  • having renounced citizenship;
  • being subject to an order restraining that person from stalking, harassing or threatening a partner or child where a hearing was held and the person received actual notice and opportunity to participate in the hearing;
  • being convicted of a crime of domestic violence.

However, even if a person is “convicted” of a crime punishable exceeding one year, there is a way to have your firearm rights restored. 18 USC § 921(33)(A)(ii) provides,

A person shall not be considered to have been convicted of such an offense for purposes of this chapter [18 USCS §§ 921 et seq.] if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

One federal court restated the law in this manner

Restoration of felon’s rights to vote, sit on jury and hold office, upon pardon or completion of sentence, is sufficient to reinstate felon’s civil rights for purposes of 18 USCS § 921(a)(20), regarding qualifying felony convictions for purposes of prosecution under 18 USCS § 922(g)(1) for possession of firearm by convicted felon. United States v Petersen (2003, DC Colo) 277 F Supp 2d 1089.

To be considered as having your rights restored under state law, a person would need an order from state court declaring your rights restored. See United States v Essig (1993, CA3 Pa) 10 F3d 968 and United States v Chenowith (2006, CA5 Tex) 459 F3d 635. The civil rights must be substantial (see Presley v United States (1988, CA8 Mo) 851 F2d 1052), including two or more (see United States v Thompson (2012, CA11 Ala) 702 F3d 604, 23 FLW Fed C 1711)) of the following rights: right to vote, serve on jury and hold public office (see United States v Cassidy (1990, CA6 Ohio) 899 F2d 543 [criticized by other federal decisions]).

Read this recent Van Der Hule (Ninth Circuit Court of Appeal) decision to get a better understanding of how federal courts interpret the federal law regarding federal firearm rights relative to state laws.

If you need an order from a state court in Montana declaring that your civil rights are restored, email Tim Baldwin at timbaldwin@outlook.com.

Know About DUIs

by Tim Baldwin

A DUI conviction can disrupt your life in more than one way, not the least of which is the stress is causes you and your family. Most people do not realize the number of issues that arise in a DUI case. For example, there are stop, search and seizure, consent, and breath test issues. And in many cases, the issues can work favorably for you. That is why you should contact an attorney who practices in criminal law and particularly in DUI cases.

Here are a few things to keep in mind if you are ever stopped and arrested for a DUI:

  1. Consent. When you consent to giving evidence (i.e. making statements, performing field sobriety exercises, giving breath samples) to the officer, you waive your rights to suppress that evidence had you not consented. Keep in mind, Montana law gives the officer the right to ask for your name, driver license, registration and proof of insurance upon a lawful stop. From there, if the officer observes indicators of impairment, he will begin his DUI investigation by asking you usual questions (i.e. have you been drinking? Where are you coming from? etc.). He is seeking evidence to build a DUI case. Eventually,  if the officer believes he has obtained enough facts of impairment, he will ask you to exit the vehicle and perform field sobriety exercises. And then he will ask you to give a breath sample (see below). If you decide you to do not consent to answering questions, performing FSEs, or giving a breath sample, you must inform the officer at that time that you do not consent. If the officer asks you to sign a rights waiver, do not sign if you want to reserve your right not to consent.
  2. Breath Test Before Arrest. Montana law states that every driver who drives on the public ways implicitly consents to giving an officer a preliminary breath test (PBT) where the officer has particularized suspicion that the driver is driving while impaired by alcohol. If you refuse to give a breath sample, your license will be automatically suspended according to the law (with the right of appeal, of course). Keep in mind that the PBT can be used to form probable cause for your arrest but in most cases cannot be introduced as evidence at trial.
  3. Breath Test After Arrest. Montana law also states that every driver implicitly consents to giving a breath test after arrest to determine the blood alcohol content. If you refuse, your driver license will be suspended automatically (with the right of appeal, of course). If you consent to the breath test, the results can and will be used as evidence against you, unless the consent was obtained illegally.
  4. Inference of Impairment. If you refuse to give a breath test after arrest and your case goes to trial, the court will instruct the jury that they may infer from your refusal that you were under the influence. However, the inference is rebuttable; that is, you can rebut that inference.
  5. Actual Control of Vehicle. Montana law does not require that you be actually driving to be convicted of DUI. Rather, you only have to be in “actual physical control” of the vehicle while you were impaired. Thus, if you are in the driver’s seat while impaired with the keys near you for access, you could be arrested and perhaps found guilty.
  6. Evidence. The main evidence the prosecutor uses to convict a defendant of DUI are: (a) the officer’s observations of the driver (i.e. smell of alcohol, watery eyes, slurred speech, FSE, etc.), (b) video and audio of the stop and investigation, and (c) results from the breath test. The less you are exposed to each of those categories, the weaker the DUI case is and the more likely the chances of getting the charge reduced, dismissed or acquitted.

If you have been arrested for DUI, email Tim Baldwin at timbaldwin@outlook.com.

The Difference Between 100 Years in Prison and 12 Months Probation

by Tim Baldwin

I recently represented a Montana citizen whom the state government charged with felony stalking, which allegedly occurred between May 29, 2014 to July 3, 2014. He had an existing restraining order against him (because he “tailgated” her too closely one day), which his wife applied for and obtained from a justice court (not a hard thing to obtain nowadays). When there is a restraining order in place, it makes a stalking charge a felony. My client had a prior felony drug possession conviction within 5 years of this stalking charge, so under Montana law, the government was seeking PFO (“persistent felony offender”) status. This means, if convicted of the stalking offense, my client was facing a maximum of 100 years in state prison with no less than 4 years in prison. His situation was seriously dangerous.

My client had a prior defense attorney represent him. That attorney tried the case at trial before 12 jurors. At end of the trial, 11 of 12 jurors said GUILTY. One juror said NOT guilty, however. He was nearly convicted, but it was a hung jury. Still, the government did not give up prosecution: they wanted a second trial. After this, the prior defense attorney and client had a breakdown in their relationship. This is where I stepped in and began representing my client.

Prior to my representation, the defense attorney did not do many things I thought were necessary and critical for a good defense. For example,

  • the complaining witness had a prior conviction against my client for assault. I wanted to use this as character evidence under Rule 404(a) and (c), Mont. Rules of Evid.;
  • my client’s family law attorney had instructed my client during the time of the alleged “stalking” to take photos of his personal property. This is why my client was “caught” on his property taking pictures, which the complaining witness claimed was “stalking”;
  • a mutual friend of my client and the complaining witness said that the complaining witness told him to tell my client that she had pictures of their children in her vehicle and that he could get them since she would be out of town. Since she claimed he was “stalking” her by going into her car, this witness was important to show she was setting up my client;
  • the government had not disclosed exculpatory evidence, which was needed to defend the client. This included the numbers of time that the complaining witness called the police against my client, but the reports showed that she was either unreasonably paranoid or vindictive;
  • during the first jury trial, the defense attorney did not object to many prosecutor questions that, in my opinion, violated the rules of evidence. I filed a motion in limine to exclude these questions; and
  • all of the witnesses needed to be interviewed, but they weren’t before the first trial.

After I performed these tasks (and more), the court held a hearing on my defense motion to use character evidence against the complaining witness. The court ruled that I could use the evidence if the government elicited testimony or made arguments at trial that my client dominated her in their relationship, which is why she was “scared” of him. This took the wind out of the government’s case in many respects. Then, the Court indicated at the hearing that she was going to grant my defense motion to keep out certain testimony that violated rules of evidence. Again, this took the sting out of the government’s case. In short, the prosecutors’ case had substantially worsened and weakened–by the defense simply discovering the facts and using the law.

What happened next? One week before trial, the government offered to reduce the felony stalking charge to two misdemeanor restraining order violations. My client accepted. So, instead of facing 100 years in prison if convicted at trial, my client pleaded to two misdemeanors, for which he was ordered to be on 12 months unsupervised probation.

The moral of this story is simply this: if an accused expects to get the best result possible, he must hire a defense attorney who

  • is willing and able to work hard;
  • knows how to deal with prosecutors and witnesses;
  • knows criminal and constitutional law;
  • digs deeply into the case;
  • isn’t afraid of taking cases to trial; and
  • knows what to do with the information he learns.

It’s the difference between life in prison and 12 months probation.

For your criminal defense, email Tim Baldwin at timbaldwin@outlook.com.

The Ins and Outs of Sex Sting Cases

by Tim Baldwin

Sex sting operations by police are becoming common today, in all states. The agency that is most responsible for sex sting operations is known the Internet Crimes Against Children (ICAC) task force. Despite how agents for the government might lead the public to believe differently, sex sting investigations do not create “open and shut” cases, and not everyone who gets caught in the police net has a guilty mind. In many instances, the facts and circumstances around sex sting investigations create room for plausible defenses. Unfortunately, many people called for jury duty are unable to be fair and impartial when the allegations are sexual in nature. This is why defense attorneys must look at sex sting cases from every possible defense angle. The following is a brief review of some important issues that may arise in a sex sting case and have significant impact on the case result.

Funding Issues

The federal government funds many state operations, and believe it or not, some rich, private persons are funding state operations as well and even directing where the police should conduct their investigation. In some cases, ICAC sex sting investigations are funded by private persons in large part, as much as 90%. Funding creates defense issues, such as a motive for officers to increase the number of arrests so they can justify asking for more money. It can also create issues concerning the defense of entrapment. Where officers are looking for a person to arrest, they may be inclined to encourage a person to commit a crime so they can effect an arrest quicker.

ICAC Operation Plan

ICAC sex sting operations should have an Operational Plan. The plan is sent to the participants of the investigation, and the participants are supposed to follow the plan. Their knowledge of the plan can and should be tested. The plan sets forth important parts of the investigation, which may prove critical to challenging the government’s practice and procedures. For example, the plan may provide, to name a few:

  • the mission and purpose;
  • list of participants and their duties;
  • arrest scenarios and procedures;
  • the script for undercover officers to follow when conversing with target suspects;
  • evidence collection procedures; and
  • interview procedures

Some prosecutors may be unwilling to provide this plan, even though it is clearly discoverable for various reasons. The prosecutor may claim the plan is confidential or not in the state’s possession. The defense should not accept this answer at face value, but rather push hard to obtain this crucial material to prepare a proper defense. At a minimum, the court should review the materials in camera to determine whether they are discoverable.

ICAC Training

Officers who participate in ICAC sex sting operations should be specially trained for them. Since ICAC sex sting investigations are relatively new and create many due process concerns, a defendant should obtain the training material of officers who have a particular bearing on the defense. For example, if there is an issue of entrapment, the defense needs to discover the training material of the undercover officer who conversed with the suspect to ensure he or she was trained properly and did not contradict the training in this area. Like the operation plan, the prosecutor may claim that this material is irrelevant, confidential, or otherwise not discoverable, but if the training material helps the defense, it must be explored.

Witnesses’ Memory

Witnesses’ memory can be a major issue in a sex sting case because during these investigations, there are many officers coming and going from target locations; undercover officers are making many arrests to “catch a predator”; and many officers do not write reports of their involvement. Since sex sting cases heavily involve the issue of the defendant’s intent (i.e., did the defendant travel with the intent to have sex with a minor, or is there another plausible and reasonable explanation, such as being a vigilante or engaging in a fantasy game), the minutiae of the case are extremely important to present to a jury. Where officers forget the facts of a particular case or confuse one case with another, the defense may have many opportunities to challenge the way the government collected evidence and arrested the defendant. This is important to consider because in a jury trial, the judge will read specific instructions to the jury that concern how well the witness was able to recall the facts of the case. Where officers cannot remember facts or confuse them, the government will have a much harder time proving the charge beyond a reasonable doubt.

Witness Availability

ICAC sex sting investigations are composed of many officers from various state and federal agencies. Many officers do not live in the local area where the investigation took place. Some officers have no expectation of having to stay involved in the case after an arrest is made. They expect the cases will resolve one way or the other without their involvement–they are already thinking of and engaged in other investigations. So, where a defense attorney does due diligence for his client and demands interviews with the witnesses, there will inevitably be officers who do not want to submit to an interview or go to trial to testify. Some officers will display their contempt for defense attorneys who require an interview. As the case nears trial, some officers will express their unavailability or ask the prosecutor not to call them to testify, and when a defendant subpoenas them for trial, some officers will wonder why and ask the defense attorney to explain. These factors play a role in defense strategy because the defense attorney can determine which witnesses will be more credible, which witnesses will be available for trial, and which officers show respect for the rights of the accused to defend against the allegations.

Entrapment

State and federal laws prohibit officers from directly encouraging (i.e., “entrapping”) a person to commit a crime. Sex sting cases present unique opportunities for officers to entrap because the officers’ goal is to converse with a person online undercover and get that person to engage in “Sexual Abuse of Children.” ICAC officers are supposed to be trained specifically on how to avoid entrapment; the operational plan as well as ICAC investigative standards are designed to protect people from entrapment. Entrapment is a defense for a reason: society does not want the government to create criminals by targeting people who are not predisposed to commit crime. This defense is important not only for particular defendants, but for society as a whole.

Discovery

Some prosecutors are very reluctant to share material that could be helpful to the defense. As a rule, the more material the defense has, the easier it is to refute the government accusations. This is why some prosecutors “hide the ball” as much as possible. It is not fair, but it is hard for defense attorneys to challenge it. Of course, the defense does not know what material exists and is not in a position to state what material has not been supplied. So, being able to allege a discovery violation can be difficult because there needs to be a good faith basis in law and fact to file the motion. The defense needs to know that in sex sting cases, some material should always exist. For example,

  • operational plan;
  • operation checklist;
  • ICAC investigative standards;
  • investigative reports;
  • interview recording;
  • audio-video surveillance;
  • email or text of “chatter” conversation;
  • funding application; and
  • search warrants
    • to seize electronic communication with chatter before arrest
    • to search electronic devises after arrest.

Discovery rules are there so the parties know what evidence to present to a jury. Defense attorneys would do their clients a service by not ignoring this.

For your criminal defense, email Tim Baldwin at timbaldwin@outlook.com.