Writings and observations

courtroomWe know that the constitution says we all have a right to not be required to incriminate ourselves: “No person . . . shall be compelled in any criminal case to be a witness against himself.” In some cases, the meaning of that right, and the line-in-sand it draws, are evident enough. In other cases, not so much.

Consider the appeal (formally, a request for writ of certiorari) of the Idaho Attorney General’s office, filed Friday, to the U.S. Supreme Court, from a decision by the Idaho Supreme Court. Here’s the executive summary:

After his conviction and sentence for rape, Krispen Estrada filed a petition for post-conviction relief in the Idaho district court, claiming ineffective assistance of counsel in sentencing. The district court determined that Estrada’s counsel in the criminal case had provided deficient performance by failing to advise Estrada about his privilege against self-incrimination in regard to a court-ordered psychosexual evaluation. The court denied the claim, however, reasoning that Estrada was not prejudiced because he would have received the same sentence because the sentencing court could have properly drawn adverse inferences at sentencing, such as lack of remorse, non-amenability to treatment, and risk to the community, if Estrada had refused to participate in the evaluation. The Supreme Court of Idaho reversed the district court’s finding of lack of prejudice, implicitly rejecting the district court’s determination that the sentencing court may properly draw adverse inferences from silence at sentencing, and holding prejudice was shown because the evaluation “played a role” in sentencing. The question presented is:

Other than in finding the facts and circumstances of the offense, may a sentencing court draw adverse inferences from a defendant’s refusal to cooperate in a pre- sentencing evaluation?

Estrada’s offense is certainly heinous, “beating, choking and raping his estranged wife in front of their children,” then holding off police in a seven-hour armed confrontation. But the question of self-incrimination – in this case, allowing an effective inference of guilt from a decision not to speak – is a lot broader than one case.

In Estrada’s case, he was convicted of the crime – through a plea deal – before the issue of psychosexual testing came up. His guilt or innocence was not at issue; the testing was used to help the judge determine whether he would continue to threaten violence to society. The testing indicated that he did, and the judge sentenced accordingly. A lawyer for Estrada said that the attorney previously handling the case should have fought the testing, on grounds that the convict was effectively testifying against himself, if not for purposes of guilt then for purposes of sentencing, which also matters.

In other words: Can your insistence on your rights be held against you?

There are other cases where we do allow something of the sort. If you’re stopped while driving and suspected of driving under the influence, and refuse to take certain tests, your license can be taken away. It’s not an exact analogy, since driving is a licensed and limited activity, not a general right, but something of the point remains similar.

There’s also the position of a judge who has to decide what level of danger a convicted person may pose to society. Should we say that a judge shouldn’t consider all relevant factors in trying to make the best decision – but only some of them?

The whole area is an unclear piece of the law. As the AG’s appeal notes, “The Lower Courts Are Divided Between Those Jurisdictions That Allow No Adverse Inferences At Sentencing, Those That Allow Adverse Inferences At Sentencing Except To Show The Facts Of The Underlying Crime, And Those That Pro-
hibit Adverse Inferences That Increase A Sentence But Allow Adverse Inferences In Denying A Decrease Of The Sentence.”

There’s no perfect answer. This is one of those cases where various rights and responsibilities do seem to come into collision. It ought to be a useful piece of work for the high court to undertake.

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Micron TechnologyAthink piece in the current Business Week magazine points out that corporate spending is continuing to grow, but that “just increasingly outside the U.S. A BusinessWeek analysis of financial reports from more than 1,000 large and midsize U.S.-based companies shows that global capital expenditures in the fourth quarter of 2006 were actually up 18.1% over the previous year, a number that includes nonresidential construction as well as info-tech equipment and machinery. The comparable growth for domestic business investment, which is all the government reports each quarter: only 8.9%, without adjusting for inflation.”

Which would be notable but not Northwest-oriented except that one of the handful of corporations the article highlights is Boise-based Micron Technology, on which a large chunk of the Boise-area economy is reliant. And whose CEO, Steve Appleton, is quoted as saying, “I don’t have to hire one more person in the U.S. I don’t have to invest one more dollar here – and we’ll be just fine.”

Back at Boise, where two years ago talk of the town was of a prospective new billion-dollar Micron production operation (not yet materialized), the Idaho Statesman has asked Micron for some further explanation of its growth plans. No response as yet, the paper reports.

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Caldwell’s Curtis Bowers will be the newest Idaho legislator, replacing Representative Robert Ring, who resigned for health reasons.

In choosing Bowers, Governor Butch Otter chose the third-ranked choice of the western Canyon County legislative committee which nominated him along with former state Agriculture Director Pat Takasugi and Caldwell attorney Jim Rice. But both of the others had issues. Takasugi was ousted by Otter on his arrival in the governor’s office; whatever all his reasons were, a Representative Takasugi probably would have been an uncomfortable fit. And Rice had lost a county commission primary.

Bowers has his own back involvement, albeit tangential. In 2006 he announced he was running against Ring, often described as one of the more moderate House members, from the right. Bowers, who owned but by 2005 sold the Boise and Nampa Mona Lisa Fondue restaurants, withdrew from the Ring race early on. Still, indications are that the Ring-Bowers transition is another step n the rightward tilt of the Idaho House.

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Only the foolish make flat predictions, on application release day, about the name of the next appointed justice on the Idaho Supreme Court. The Idaho Judicial Council, which screens for two-to-four applicants (usually four), and the governor, who makes the final selection, have historically proven adept at upending expectations.

Bart Davis
Bart Davis

That said, the early money seems likely to go to the state Senate Majority Leader, Bart Davis, R-Idaho Falls, and for substantial reason.

The opening will result from the retirement of the court’s chief justice, Gerald Schroeder, at the end of July. (He has, as an aside, a remarkable record on the bench. He has been a judge since 1969 and on the Supreme Court for a dozen years, and throughout has been held in broad high regard. In spite of which, neither stiff nor stuffy; he’s low-key, humble and has a sense of humor. One of the region’s lesser-known long-running class acts.)

The court opening, one of the few appointive spots in recent years, drew a pile of applicants: 19 in all. The Idaho Judicial Council (which will interview the candidates) lists them on its site:

DAVIS, BART M. – Idaho State Senator and Lawyer in private practice – Idaho Falls, ID
GABBERT, MYRON DAN – Adams County Prosecutor and Lawyer in private practice – McCall, ID
GILMORE, MICHAEL S. – Deputy Attorney General – Boise, ID
GINES, RALPH J. – Lawyer in private practice – Boise, ID
HORTON, JOEL D. – District Judge of the Fourth Judicial District, Boise, ID
HUNTER, LARRY C. – Lawyer in private practice – Boise, ID
JONES, WARREN E. – Lawyer in private practice – Boise, ID
KRISTENSEN, DEBORA K. – Lawyer in private practice – Boise, ID
LUKER, LYNN M. – Lawyer in private practice – Boise, ID
PETERSON, Jr., CHARLES F. – Lawyer in private practice – Boise, ID
SATTERLEE, KEVIN D. – Assoc. Vice President and General Counsel for Boise State University, Boise, ID
SKINNER, Jr., GARDNER W. – Lawyer in private practice – Boise, ID
SMITH, MARVIN M. – Lawyer in private practice – Idaho Falls, ID
STICKLEN, KATHRYN A. – District Judge of the Fourth Judicial District, Boise, ID
STRONG, CLIVE J. – Division Chief of the Idaho Attorney General – Boise, ID
TORYANSKI, MITCHELL E. – Deputy Attorney General – Boise, ID
WHITE, TERRENCE R. – Lawyer in private practice – Nampa, ID
WOOD, BARRY – District Judge of the Fifth Judicial District, Gooding, ID
YOST III, WILLIAM “BUD” F. – Lawyer in private practice – Nampa, ID

There is on this list a larger-than-usual number of really prominent names. Clive Strong, for example, has been for many years the state’s main man on legal matters that relate to natural resources, especially water; he is so key in that area that many people may not want him to move.

A Supreme Court appointment has to be politically acceptable, and that factor may knock out some of the people on the list.

Former Governor Cecil Andrus generally preferred appointing non-district judges to the high court. Otter’s views on that idea aren’t clear, but after Schroeder (a former DJ himself) leaves, three of the four other justices (Linda Copple Trout, Daniel Eismann, Roger Burdick) still will be former district judges. That may weigh against appointing another one. And among the applicants, the judge with the broadest experience, 5th District Judge Barry Wood (who has gotten strong reviews for his work over the years, and acquitted himself well presiding in the tough Snake River Basin Adjudication), has background and regional experience that may too-closely match that of Burdick, the most recent appointee to the court.

Another frequent consideration is regional. The post-Schroeder high court will have justices with substantial southwest Idaho background (Eismann, Jim Jones), northern Idaho (Trout), and the Magic Valley (Burdick and Jones). The region left out, as it has been for a while, is eastern Idaho. Of the 19 applicants for the opening, 15 hail from the Boise-Nampa area. Of the other four, there’s one from McCall (Myron Dan Gabbert), one from Gooding (Wood), and two private practice attorneys from Idaho Falls – Marvin Smith and Bart Davis. And Davis, besides his various civic pushups, has been active in state Bar activities (mainly in the commercial law area); he’d be a credible appointee from that front, too.

Of course, you never know. Sometimes people interview poorly at the council (and those interviews are open to the public; if someone bombs there, which occasionally happens, everyone knows). Otter’s relationship with Davis would be in play, if Davis makes the short list, and factors there could include a reshuffling of Senate leadership.

At the moment, at least, Davis seems the name to watch.

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Acouple of things came out of the Burley water summit Idaho Governor Butch Otter called for this week. Neither was what he probably was hoping for.

One was a raft of bad headlines for holding the key parts of the conference behind closed doors; the critics included not only newspapers but also the chair of the Senate resource committee, Gary Schroeder, R-Moscow: “I don’t think that my constituents want me involved in any type of situation in which public policy is decided behind closed doors.” And, consequently, he declined to go to Burley.

Otter’s rationale for closure was that deals might be more likely struck if no one had to couch their language in careful, quotable terms; if they could speak freely. Sometimes it works that way; that’s how the massive (and useful) Nez Perce/Snake River deal was crafted. But that was a discussion of private interests and options in the context of a lawsuit; the water summit was intended to address more conventional policy-making about water distribution. In this case, everyone present was prospectively on the opposite side of possible lawsuits or regulatory actions – not the place to let your hair down. On top of that, anyone outside the room was likely to become immediately skeptical about whatever deals were struck inside, which is a bad place to start policy making. (There were also issues about who was and wasn’t in the inner ring of negotiators – for example, Pocatello Mayor Roger Chase, whose city has been an important factor in water law in recent years, was bumped off the central group, in favor of the new mayor of Idaho Falls.)

In the event, the second thing that came of it is that very little did:No sweeping agreements were reached. The governor’s spokesman, who would have the most incentive for spinning any results positively, said that “I think we’ve got a basis for moving forward, but I don’t think I’d call it an agreement.” A basis for moving forward might mean not much more than that no physical violence occurred in the closed room.

In the next round of efforts toward resolution (there never was any way this would get settled all at once), a more open approach – making clear to everyone the varied stakes involved, and that there really aren’t any villains here – could yield more general understanding, which ought to result in some solutions. At least, after Burley, it might be considered as an alternative that could result in no less progress, and certainly in fewer bum headlines.

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Today wasn’t Income Tax day (that would be tomorrow), but it does mark release day for round 1 of the 2008 campaign finance cycle, covering the first three months of this year.

You’ve been hearing about the fundraising on the presidential level; but what about the Northwest’s House seats?

A run though the Federal Election Commission’s database this morning suggests a few observations.

bullet Should note, first, that we weren’t able to locate Oregon Representative Peter DeFazio’s filing: it didn’t pull up under standard searches. That doesn’t necessarily mean it wasn’t filed; if anyone has spotted it, drop us a line. FOLLOW DeFazio raised, in the last quarter, $24,065 – less than anyone else in the Oregon House delegation (or Washington or Idaho, for that matter). The Oregonian politics blog notes the significance: If he were to run against Republican Senator Gordon Smith next year, he would have to get hevily into fundraising mode; to date, clearly, he hasn’t been.

bullet The ace Northwest House fundraiser of the quarter was Washington Republican Dave Reichert, who not coincidentally had one of the toughest races of the last cycle (and might have the toughest regionally in this next). He raised $184,722, more than anyone else (and we might note here that less than a third of it came from PACs); but because he spent down in the last campaign and was still paying it off this year, he didn’t wind up with a lot on hand – $47,584.

bullet A bit in contrast, then: Reichert’s 2006 challenger, Darcy Burner, who has said she’s running again, raised less than a tenth as much ($17,368) in the last quarter, but has comparable money on hand ($38,088).

bullet Eastern Washington Representative Cathy McMorris, who was pressed a little harder last year than originally expected, was also a substantial fundraiser, pulling in $165,108 (just $60,000 from PACs). Like Reichert, she seems to want to take no chances this time. She has $107,783 on hand.

bullet Who has big money on hand? Among the top treasuries: Washington Democrats Brian Baird ($763,820), Jay Inslee ($762,028), Jim McDermott ($454,120) and Adam Smith ($425,743), Oregon Democrats David Wu ($515,887) and Earl Blumenauer ($405,248) and Oregon Republican Greg Walden ($408,903) top the list.

bullet New Idaho Republican Representative Bill Sali kept on raising money in the first quarter, less than Reichert or McMorris (who had the other two hot House races last year), but at $86,731 substantial anyway. (In contrast to the Washington Republicans, the bulk of that Sali money – $69,861 – came from PACs.) But then, Sali has to scramble, financially; he spent hard in the last race, and his cash on hand is still just $69,861, and he is sure to draw a significant challenge this cycle. His opponent in 2006 and prospectively in 2008, Democrat Larry Grant, reported no income for the quarter, but has $10,079 cash on hand. The other Idaho representative, Mike Simpson, raised $35,900 last quarter, leaving him with $36,644 on hand.

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Jade Riley

Jade Riley

Boise Mayor David Bieter has had a generally blessed run in office so far: No huge blowups or bitterly intractable issues, which is one reason we’ve figured (and still do) he’s in the favored position for re-election this year. Not much at City Hall has tested him hard.

Here’s something, though, that might. Jade Riley, one of Bieter’s key assistants – not exactly but nearly chief of staff – was charged late Friday night with driving under the influence. Bieter took action promptly, suspending Riley without pay for two weeks. The arresting agency was the Boise City Police; its officers may win some plaudits for not letting one of the mayor’s top aides off the hook.

Riley, a former executive director of the state Democrats, has been a key figure in Bieter’s office from the start of his mayoralty, a valuable player. What exactly, though, should Bieter do now?

No obvious answers from this quarter; but quite a few people probably will be watching.

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Jim Risch
Jim Risch

Probably not a lot more than what’s on the surface should be read into Idaho Lieutenant Governor Jim Risch‘s remarks to the Idaho Statesman today, that he’d be interested in running for the Senate seat held by Larry Craig, if Craig doesn’t.

Craig and Risch aren’t especially close, so – for example – this shouldn’t be read (as some might) as an indicator Craig isn’t planning to run again. Craig’s intentions remain unknown.

But a few other thoughts might be worth mention.

In 2005 Risch had in mind a run for governor, and (so we read things now) he might have made that run except that, by the time he was moving toward announcement time, the bulk of money and support had been soaked up by now-Governor Butch Otter. A fine political strategist, Risch doubtless has no intention of erring the same twice.

At the same time, Risch is doing more than expressing interest: “Should [Craig] decide not to run, there is a reasonable likelihood that Vicki and I will get into that race.” That’s just short of a conditional announcement of candidacy.

It also may suggest that any plans to run for governor in 2010 – certainly Risch enjoyed the job, and got a lot of good reviews, when he held last year – could be fading. And it certainly should quash the around-town talk (which we never took very seriously) of a Risch race against freshman Representative Bill Sali.

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The Idaho Supreme Court’s annual report on court activity over the last year (actually, with a year-end that stopped in 2006) is mostly unremarkable, except for a few numbers we’re at some loss to reconcile.

From the report:

A total of 20,992 cases were filed in the district courts of Idaho, an increase of 1.5% from 2005. The total number of district court cases in 2006 indicates a 26% increase in filings from ten years ago. A total of 471,478 cases were filed before magistrate judges in 2006, a 4.1% increase from 2005.

Felony DUI cases increased by 26% over the number filed in 2005. Misdemeanor DUI filings were up 14.7% from the last year. Overall, the number of juvenile cases rose to 13,669, a 5.2% increase from the previous year. Showing a steady decline for the fourth-consecutive year, the number of domestic violence petitions filed in 2006 dropped 8.6% from those filed in 2005.

From 2005 to 2006, district court cases overall increased 1.5% – which seems about right for a single year – but felony DUIs (which would be heard in district court) were up 26%. That’s an enormous jump for a single year. But at the same time domestic violence petitions, which so often show up somewhere in the neighborhood of alcohol abuse, were down.

Thoughts on this will be welcome.

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What with the lines between politics, culture and other societal elements blurring in recent years, we were immediately intrigued by the name of a blog we just spotted: A Seattleite in Idaho.

It is run, it turns out, by a graduate student now at Idaho State University, and who happens to be Mormon. The perspective is sometimes striking. Worth a look.

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