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Month: May 2024
Answering Discovery as a Prosecutor by Louis E. Marshall
by Louis E. Marshall
Discovery
For those of you that practice mainly civil law and never have to forge your way through the trenches of criminal prosecution and criminal defense, discovery is something that is likely of the utmost importance to your practice. Things like interrogatories, requests for production, requests for admissions, and depositions are critical for both the plaintiff and defendant in civil cases. Countless hours are spent forming the questions and answers by the attorneys who are litigating these matters. Lawyers are extremely hands-on during the discovery phase of civil litigation.
In the criminal world, things are very different. The rules of discovery found in Criminal Rule 16 require some level of reciprocity between the prosecution and defense; however, the vast majority of production of documentation flows from the State to the Defense. Rarely do defendants have to provide information to the State other than potential witnesses.
Prosecutors work with several local and state agencies. Before a prosecutor can respond to a defense request for discovery, the reports and media must first be requested and obtained from applicable agencies, such as the Idaho State Police and local law enforcement agencies. This takes time. Prosecutors are not in control of those agencies, their internal practices, staffing levels, or response time. Each agency is different. Also, the volume of information received from each agency has increased as technology has advanced, and more agencies are utilizing body cameras and in-car cameras for their officers.
Prosecutors are also not in control of how long it takes labs to test evidence. Each individual lab, whether the Idaho State Lab or a private lab, sets their own procedures for testing. They prioritize the requests coming in based on their internal policies. This, of course, is not the fault of the prosecutor who oversees that case.
It should be noted that the type of discovery we are talking about does not exclude exculpatory materials. Exculpatory materials are required not only by Criminal Rule 16 but also clearly delineated by Federal and State case law as being mandatory for prosecutors to disclose to the defendant with or without a request.[i] Practically speaking, exculpatory materials often set off alarm bells to most prosecutors and it is the best practice to disclose those type of materials immediately even when discovery is not ready to send as an entire packet to the defendant or defense attorney. No prosecutor wants to withhold this type of information. Failure to disclose exculpatory materials is likely the fastest road to a prosecutorial misconduct finding by an appellate court.
"A typical prosecutor in this state has hundreds of cases going on at any one time."
There is very little potential motive for a prosecutor to purposely withhold giving the discovery to a defense attorney. Unlike whiskey and wine, our cases do not get better with age. A defendant’s case, on the other hand, often gets better with delays. Sometimes complaining witnesses, officers, and even deputy prosecutors have less zeal to prosecute a defendant after memory has faded and the initial shock of the crime has worn off. Witnesses move away. Officers retire or take jobs in other states. Memories fade. Delays cause backlogs in already overburdened caseloads of deputy prosecutors and make their jobs more difficult. A typical prosecutor in this state has hundreds of cases going on at any one time. It simply does not make any sense for a prosecutor to purposely delay the discovery process.
Many criminal defense attorneys in Sandpoint and Coeur d’Alene would attest that oftentimes my office will provide discovery early for them if they provide a reason why it is needed early, such as a separate Administrative License Suspension (“ALS”) hearing or a civil collateral matter such as a divorce. We provide these things not based on a Criminal Rule and the fourteen-day limit, but because these attorneys are colleagues, and we have no desire to make their job more difficult.[ii] The result is a relationship which works well in the court system. On the other hand, if local attorneys here were filing motions to compel and requests for sanctions, it is entirely possible that the collegial atmosphere would dissipate and the practical result would be all our jobs – for prosecutors, defense attorneys, judges, and court personnel –would be more difficult.
The Bigger Picture
The job of being a prosecutor has become more difficult.
If a defense attorney makes a mistake, it may amount to ineffective assistance of counsel and, perhaps ironically, prosecutors are charged with defending the effectiveness of such assistance in post-conviction proceedings. If a prosecutor is unsuccessful in that defense, the court may order a re-trial. If a prosecutor makes a mistake, it may amount to misconduct and the court may order a re-trial. I agree with the author’s conclusion in the March-April 2023 Discovery Delayed is Justice Denied article that prosecutors still have a tremendous amount of power in the criminal justice system. Prosecutors should fully embrace the responsibility that comes with that power. But, as the President of the Prosecutor’s Association, I believe it is important that we continue to recruit and employ excellent deputy prosecutors throughout this wonderful state.
Prosecutors are under attack from members of the public and media in ways that other attorneys and, quite frankly, judges, are not. It seems to me that attorneys should not contribute more to this with questionable claims of prosecutorial misconduct but rather should work within the confines of the paradigm that has worked so well for so long.
Louis E. Marshall
Louis E. Marshall graduated from the University of Idaho College of Law in 2001 and has been the Prosecuting Attorney for Bonner County since January 2009. He is the current President of the Idaho Prosecuting Attorneys' Association ("IPAA") and sits on several other boards. He is personally finishing his fourth term as the Elected Prosecutor in Bonner County. He has had the privilege of serving on the IPAA Board previously from 2009-2013 and from 2022 through the present day. Louis has three grown children and two grandchildren. His wife, Angela, is an attorney in Sandpoint.
In Defense of the Prosecutor by Christopher D. Boyd
by Christopher D. Boyd
Over the past decade we have witnessed the rise of troubling narratives about the American prosecutor. Prominent national organizations like the ACLU blame prosecutors for mass incarceration and “ruining lives,” claiming they can rectify the “harm they’ve caused” by, among other things, “sentencing reductions.”[i] Entertainment and media, like the series Making a Murderer, present one-sided, emotionally manipulative takes on the justice system and prosecutors as a whole. Some narratives have become popular wherein many prosecutors are painted as villains, and many defendants as railroaded innocents.
These narratives threaten much worse than mere decline in morale for prosecutors. They threaten the whole point of the justice system, “that guilt shall not escape, nor innocence suffer.”[ii] Villainous prosecutor narratives hurt the entire judicial department’s efforts to hold offenders accountable. Serious efforts are made to ensure that defendants are presumed innocent and that the burden of proof remains with the prosecutor.[iii] Appropriately so. Yet the rising danger of naming the prosecutor a villain has gone largely unaddressed. This should change. It is not by accident that in Idaho, prosecuting attorneys are officers of the Judicial Department.[iv]
Idaho’s Bar and its Courts should resist these narratives that claim the prosecutor’s role is villainous. The entire judicial system loses integrity if prosecutors are assumed to be such. Instead, we should: (1) change the judicial labels of “misconduct” to “error” where appropriate, (2) hold ourselves to a higher standard, and (3) encourage fairness in the narrative.
Change Judicial Labels: Error Isn’t Always Misconduct
The term “prosecutorial misconduct” is one that necessarily invokes a large body of law intended to protect a defendant’s constitutional rights against an unfair trial or other prosecutorial actions.[v] While it may be intended as a legal term of art, it invokes visceral reactions from defendant and prosecutor alike. The dictionary definition of “misconduct” includes not merely improper behavior, but intentional wrongdoing, deliberate violations of law, and malfeasance.[vi]
There is a real cost to the linguistic oversimplification. It has the dual impact of (1) watering down actual misconduct, which should be addressed with the seriousness that it deserves, and (2) placing a label of deliberate “misconduct” upon even inadvertent mistakes. Idaho’s jurisprudential language unfortunately reinforces this phenomenon. An inadvertent error by an inexperienced prosecutor receives the same label as deliberately abusive trial behavior or even willful misrepresentations – all are labeled “prosecutorial misconduct.”
Our Courts would do better to reserve that label for intentionally abusive conduct. Lumping the unintentional error in with intentional abuses serves only to undermine confidence in the judiciary and dishearten the prosecutors charged with fair dispensation of justice. A prosecutor’s genuine mistakes can be corrected on appeal using more descriptive terms than prosecutorial misconduct. Would not “prosecutorial error” be more judicious in instances of inadvertent mistakes? When mistakes are made in the civil realm, or even by judges in the criminal realm, such mistakes are given the benefit of being labeled errors rather than uniformly being called misconduct. Such consideration ought to be extended by Courts to their prosecutorial officers.
Hold Ourselves to a Higher Standard
In the rare instances where actual misconduct is found, the best way to combat these narratives that prosecutors are shadowy operators who can act with impunity is to hold ourselves to a higher standard. Idaho’s elected Prosecuting Attorneys have a key role to play in ensuring that ethical principles are followed by their deputies. If we wish to keep the public’s confidence, we must be rigorous in demanding high standards of ethical conduct from ourselves.
Prosecutors wield a tremendous amount of power in our roles. Judges rely on the representations of prosecutors when they seek search warrants, arrest warrants, and bring criminal charges. When a prosecutor willfully misrepresents factual information to a judge in seeking the arrest, detention, or criminal charging of a citizen, that prosecutor should be swiftly terminated – at a minimum. We can resist the narratives of the villainous prosecutor only if we transparently eject those who misuse the office from among ourselves. We must demonstrate that we believe the mantra that we “may strike hard blows…” but we are “not at liberty to strike foul ones.”[vii] While the overwhelming majority of prosecutors are fulfilling their duty, if there is even one found to be engaging in misconduct, that one should not be allowed to tarnish prosecutors as a whole. We as prosecutors must hold ourselves to the highest ethical standards if we hope to combat villainous-prosecutor narratives.
Encourage Fairness in the Narrative
It can hardly be expected of lawyers – who have a duty to act as advocates – to consistently harmonize always with their party-opponents. But just as every prosecutor should defend the sacred and necessary role of the defense attorney, so too should the defense bar resist the urge to paint all prosecutors, who are officers of the court, with a broad brush and assume bad intent. Similarly, judges should defend equally the role of prosecutors and defense attorneys in the court system. A measured comment from a defense attorney or judge about the proper role of the prosecutor goes a long way to temper emotion. Hesitation and due consideration before assuming the worst intentions of prosecutors would help.
We should encourage fairness in response to prosecutor-villain narratives – our personal experiences with good, ethical prosecutors should be recounted and retold to the public. Good prosecutors – those who take seriously their sacred obligation to support and defend the Constitution; who diligently safeguard the procedural due process rights of those who have been accused, even as they vigorously hold them accountable under the law; and who temper justice with mercy where appropriate – should be lauded and encouraged.
Christopher D. Boyd
Chris Boyd has served as the Adams County Prosecutor for the past six years. He began his prosecuting career in 2013 at Canyon County, where he served as a deputy for just under five years. He is an Iraq war veteran and graduate of University of Idaho College of Law. He lives in Nampa with his wife and five children.
[i] https://www.aclu.org/news/smart-justice/our-vision-to-transform-what-it-means-to-be-a-prosecutor.
[ii] Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).
[iii] Idaho Criminal Jury Instruction (ADD).
[iv] Idaho Const. Art. V Judicial Department, § 18 Prosecuting Attorneys.
[v] State v. Diaz, 163 Idaho 165, 168, 408 P.3d 920, 923 (Ct. App. 2017).
[vi] Merriam Webster Dictionary Online, Mar. 2024, https://www.merriam-webster.com/dictionary/misconduct.
[vii] Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).
2024 Annual Meeting Scholarships Available – Deadline June 3
The Idaho State Bar is offering a limited number of scholarships to the 2024 Annual Meeting, July 17-19, at JUMP in Boise. The scholarships will include full registration, tickets to the social events and per diem up to $100 per day for travel and lodging. The scholarships are designed to provide assistance to those attorneys who, due to financial or professional circumstances, would otherwise be unable to attend.
To apply for scholarship, please fill out this 2024 Annual Meeting Scholarship Request Form. If you have any questions, please contact the ISB Commissioner who represents your judicial district or the ISB Program and Legal Education Director Teresa Baker.
Several of the District Bars and other legal organizations such as the Idaho Women Lawyers are also providing several scholarships. If you are a member of any of these organizations and would like to apply for one of their scholarships, please use the same Scholarship Request form and the applications will be forward to the appropriate organizations for their review.
Deadline for scholarship requests is Monday, June 3, 2024
Never Forgotten by Jan M. Bennetts
Jan M. Bennetts
Before I walked into the conference room to meet Tiffany[i] for the first time, I took a deep breath. Neither of us knew it at the time, but this would be the first of many meetings and telephone calls I would have with Tiffany spanning nearly 30 years. Her 20-year-old son, Travis, had been brutally murdered in a particularly tortuous and cruel way at the hands of three men. Those men ignored Travis’ desperate pleas for his life as they methodically swung him by his hands and feet, back and forth three times to gain momentum, before they hurled him off a cliff to his death. His murder came after they had beaten Travis, kidnapped him, stuffed him into the trunk of his own car and drove until they found the location they knew would kill him, the Mores Creek High Bridge at Lucky Peak.
This was my first murder case and before I met with Travis’ family, I thought: What could I possibly say to Tiffany, Travis’ brother, Dustin, and his other family members? Fortunately, I had Susan Ledford at my side. Susan was the victim-witness coordinator assigned to the case. She would be the family’s guide throughout the case, ensuring they were afforded their constitutional and statutory rights. More than that, Susan was, and has been, their lifeline for what was yet to come.
A Brief History of Idaho’s Victims’ Rights
At the time of Travis’ murder in November 1995, Idaho’s victims’ rights had been part of Idaho’s Constitution[ii] for a little over a year, following the national victims’ rights movement in the 1970’s.[iii] Thirteen years earlier, in 1982, the Idaho Legislature created the Idaho Council on Domestic Violence and Victim Assistance (“ICDVVA”),[iv] explaining at the time that “[t]he council shall be the advisory body for programs and services affecting victims of domestic violence and other crimes in Idaho.”[v] In its policy statement, the legislature declared:
…that domestic violence is an issue of growing concern. Research findings show that domestic violence constitutes a significant percentage of homicides, aggravated assaults, and assaults and batteries in the United States. Domestic violence is a disruptive influence on personal and community life and is often interrelated with a number of other family problems and stresses. Refuge for victims of domestic violence is essential to provide protection to victims from further abuse and physical harm. Refuge provides temporary safety and resources to victims who may not have access to such things if they remain in abusive situations.[vi]
In 1985, the Idaho Legislature codified both the right of victims to compensation for economic losses resulting from a defendant’s crime[vii] and several enumerated victims’ rights during investigation, prosecution and disposition of the crime.[viii] On February 1, 1985, the Executive Director of the ICDVAA at that time, Dawn S. Statham, testified before the Senate Judiciary and Rules Committee in support of enacting a victims’ rights statute.[ix] Ms. Statham provided information from President Ronald Reagan’s taskforce on victims of crime to provide the committee members information about what victims experience as they navigate the criminal justice system.[x] Statham states “We must know what it is to have our lives wrenched and broken, to realize that we will never really be the same.”[xi]
In October 1985, then Ada County Prosecuting Attorney, Greg H. Bower, hired a victim-witness coordinator to provide services and resources to victims of crime. This position was the first of its kind in Idaho.[xii] Today, my office employs ten victim-witness coordinators. This includes one coordinator who is the dog handler for our certified assistance dog, Yuko.[xiii] Yuko provides comfort to vulnerable crime victims both in and out of the courtroom.
In 1994, the Idaho Legislature began the process of amending Idaho’s Constitution to include victims’ rights with the introduction of House Joint Resolution 16.[xiv] In its statement of purpose, the legislature stated:
[t]hroughout American history, our fundamental rights have been recognized and guaranteed in the Constitution. Yet currently, criminal defendants have 15 specific constitutional rights and victims have none. Idaho citizens want and deserve the opportunity to vote on the amendment which provides 10 specific rights guaranteeing victims access and participation in the criminal justice system. Approval of this resolution will be the first step to balance the scales of justice.[xv]
House Joint Resolution 16 was adopted by the House on February 21, 1994, and by the Senate on March 9, 1994.[xvi] On November 8, 1994, Idaho voters passed the crime victims’ rights constitutional amendment with 79.3% approval.[xvii] Between 1982 and 1993, fourteen states had passed a victims’ rights constitutional amendment.[xviii] In 1994, Idaho was one of six states to include victims’ rights in their constitutions.[xix] Fourteen states still do not have victims’ rights in their constitutions.[xx]
Victims’ rights give victims a voice in the criminal justice system. Although victims cannot override the decisions made, victims are entitled to notice and the opportunity to be heard throughout the process. Crime victims have the right to “…prior notification of trial court, appellate, probation and parole proceedings and, upon request, to information about the sentence, incarceration, placing on probation or release of the defendant.”[xxi] Victims have the right to be “[h]eard upon request, at all criminal justice proceedings considering a plea of guilty, sentencing, incarceration, placing on probation or release of the defendant unless manifest injustice would result.”[xxii]
Victims are also entitled to be “[c]onsulted by the presentence investigator during the preparation of the presentence report and have included in that report a statement of the impact which the defendant’s criminal conduct had upon the victim….”[xxiii] In addition, victims are entitled to reimbursement for their economic loss and prosecutors seek restitution on behalf of crime victims.[xxiv] If a court determines restitution is appropriate, “…it shall order a defendant found guilty of any crime which results in an economic loss to the victim to make restitution to the victim.”[xxv]
The enumerated victims’ rights “…shall apply equally to the immediate families of homicide victims or immediate families of victims of such youthful age or incapacity as precludes them from exercising these rights personally.”[xxvi] In an historic case in 1998, the Idaho Supreme Court issued an alternative writ of mandate, requiring a district judge to refrain from excluding a murder victim’s brother from any phase of the jury trial.[xxvii]
The Process and Its Impact on Victims
Approximately one year after Travis’ murder, the first co-defendant was tried and convicted of first-degree murder. The other two co-defendants pled guilty. Tiffany was, and still is, entitled to exercise her rights as a victim because she is an immediate family member of a murder victim.[xxviii] She exercised her rights as a victim at every stage of this case. She had the right “[t]o be present at all criminal justice proceedings”[xxix] and she exercised that right by attending pretrial hearings, the jury trial, and the sentencing hearings. Tiffany delivered victim impact statements at each of the defendants’ sentencing hearings pursuant to her right as a victim.[xxx]
Tiffany has expressed throughout this case that one or more of the defendants could have saved Travis’ life at multiple decision points throughout the hours’ long night of his murder. The defendant who was holding Travis by his hands as they were swinging him over the cliff literally held Travis’ life in his hands and he still made the choice to end Travis’ life rather than save his life. The image haunts Tiffany to this day.
Murder leaves a path of destruction in its wake for the families and friends of the victims. Tiffany’s experience is no exception. The impact of Travis’ murder on her life was devastating. The trajectory of her life was forever changed in the matter of seconds it took Travis to fall to his death. Tiffany’s experience and pain did not end after the defendants were sentenced. In the intervening years, she has grieved the loss of a loving son, kind soul, and talented musician. But she has also mourned what would never be for Travis – a career, a wedding, children, grandchildren, and the full life Travis most certainly had ahead of him.
In the years since I first met Tiffany, I have spent countless hours ushering untold numbers of crime victims through the criminal justice system. Not only have those victims lost loved ones to murder or manslaughter, but they are victims of domestic violence, sexual assault, child abuse, robbery, aggravated driving under the influence and more. Although their journeys may be different, there are striking similarities in the impact crime has had on their lives. For victims who have suffered physical harm, some never fully recover and even if they heal physically, the mental scars remain.
The Myth of “Closure”
There is a common belief that a particular outcome in a criminal case or the passage of time will provide a measure of “closure” for a victim or the victim’s family. There is rarely, if ever, anything resembling closure. In part, because in cases like Travis’, there are appellate and post-conviction proceedings that re-open painful, haunting memories. Tiffany has had to relive the nightmare of Travis’ murder repeatedly during the trial and post-trial process. Susan and I have had to contact her several times in recent years as she prepared to attend and speak at multiple parole hearings. Each hearing was more painful for her than the one before.
"What I have overwhelmingly and consistently observed is that victims are courageous."
My interactions with victims, and with those who provide services to victims, have given me a depth of understanding the young prosecutor in me could never have anticipated when I met Tiffany in 1995. What I have overwhelmingly and consistently observed is that victims are courageous. Their courage shines, whether it is observing Tiffany’s courage throughout her journey, or the child abuse victim who takes the witness stand and describes to a jury what no child should know, let alone be required to share in a courtroom. It is important, however, not to confuse courage with closure.
I vividly remember a case I handled involving a child abuse victim who had been sexually abused when she was five years old. She had written a victim impact letter to the judge for sentencing. In her letter, she expressed to the judge that she “wanted to be the lawyer like Jan.” She contacted me approximately 15 years later because she wanted me to know how she was doing. To say I was moved is an understatement. When I saw her all those years later, I saw the incredible young woman she had become. However, I also saw the five-year-old little girl with beautiful blonde hair who was so brave throughout the criminal case. All those years later, there was no closure, but the courage I saw reflected in her eyes is not something I could even begin to describe.
As I contemplated writing about Travis’ case, I knew I could never do so without Tiffany’s permission. I struggled with whether I would do more harm by dredging up painful memories, which is the very last thing I would ever want to do. That said, I also know beyond a shadow of a doubt that Travis is in Tiffany’s heart every single day. He is in her heart and in her thoughts, not only who he was, but how he died. After consulting Susan and much thoughtful deliberation, I was confident Tiffany would want Travis’ story to be told. This time I took two deep breaths before I made the call. I was so relieved to discover I had correctly predicted her response. She expressed such gratitude that I would write about Travis because it meant I had not forgotten him. “No mother wants her son forgotten,” she said. Keeping Travis’ memory alive is extremely meaningful to her. Knowing others would read about Travis and her journey brought her some comfort. She expressed how difficult it is to learn how to live with the details of his murder and without him.
Conclusion
Tiffany’s courage shines brightly – in her voice, in her creative writing and in how she pays tribute to Travis. Navigating the parole hearing process with Tiffany, I had the same question I had before I walked through the door in 1995 to meet her for the first time. What could Susan and I possibly say to Tiffany, even after decades, that could ease the heartache? Now, I have my answer – never forget Travis, which was never an option for me.
To know how important it is to Tiffany that he is not forgotten puts my memories into a different perspective. I can still see Travis’ crumpled, lifeless body on the rocks at the bottom of the 140’ cliff. I cannot even begin to imagine how terrified Travis must have been as he was falling to his death in the dark of night. I know Tiffany has cried a river of tears imagining what Travis endured in his final moments. My memories of Travis will include Tiffany’s descriptions of the kind-hearted person he was and the photos she shared of him living his life.
For all of us who do this work, we observe victims enduring the aftermath of crime with courage and grace. We strive to help victims keep going, through the trauma and toward healing. Meanwhile, it is the victims who motivate, inspire, and give us the strength to persevere. And, in keeping with the lesson learned from Tiffany, we will never forget the victims who walk in and out of our lives – some briefly, some for decades. And, yes, if you are wondering, I still have the letter from a five-year-old little girl whose courage will also stay with me forever.
Jan M. Bennetts
Jan M. Bennetts has served as the Ada County Prosecutor since 2014. She began her career clerking for the Honorable Thomas G. Nelson, Ninth Circuit Court of Appeals, before joining the Prosecutor’s Office in 1994, where she has passionately and professionally advocated on behalf of victims and the community she serves ever since.
[i] Tiffany and Dustin have given me permission to use their names and to share Travis’ story. Susan Ledford, mentioned later in this article, has also given me permission to use her name.
[ii] Idaho Const. art. I, § 22.
[iii] Crime Victims’ Rights in America: Historical Overview, Nat’l Victim Ctr., Jan. 1, 1994.
[iv] Idaho Code § 39-5203.
[v] Id.
[vi] Idaho Code § 39-5201.
[vii] Idaho Code § 19-5304.
[viii] Idaho Code § 19-5306.
[ix] Testimony Presented to Senate Judiciary and Rules Committee, 48th Leg., 1st Reg. Sess. (Idaho 1985) (Statement of Dawn S. Statham, Executive Director for the Idaho Council on Domestic Violence).
[x] Id.
[xi] Id.
[xii] Roger Bourne, It’s time to honor a champion of victims’ rights, Idaho Statesmen, Apr. 29, 2009, at A13.
[xiii] Yuko is certified by the Canine Companions for Independence, a member of Assistance Dogs International.
[xiv] H.R.J. Res. 16, 52nd Leg., 2d Reg. Sess. (Idaho 1994).
[xv] Id. at Statement of Purpose.
[xvi] H.R.J. Res. 16.
[xvii] Idaho General Election Results, Idaho Sec’y of State (Nov. 8, 1994), https://archive.sos.idaho.gov/ELECT/results/1994/general/RSLTGN94.HTM.
[xviii] See State Victim Rights Amendments, Nat’l Victims’ Const. Amend. Passage, nvcap.org/states/stvras.html.
[xix] History of Victims’ Rights in America, Md. Crime Victims’ Res. Ctr. (2024), https://www.mdcrimevictims.org/legislative-efforts/history-victims-rights/. The other five states were Alabama, Alaska, Maryland, Ohio and Utah.
[xx] Nat’l Victims’ Const. Amend. Passage, supra note xviii.
[xxi] Idaho Code § 19-5306(1)(d); see also Idaho Const. art. I § 22(3).
[xxii] Idaho Code § 19-5306(1)(e); see also Idaho Const. art. I § 22(6).
[xxiii] Idaho Code § 19-5306(1)(h).
[xxiv] In 2023, with the assistance of the clerk’s office, our office collected and distributed over $2.2 million to crime victims.
[xxv] Idaho Code § 19-5304(2).
[xxvi] Idaho Code § 19-5306(3).
[xxvii] Varie v. Bail, No. 24929 (Idaho Aug. 28, 1998).
[xxviii] Idaho Code § 19-5306(3).
[xxix] Idaho Const. art. I, § 22(4); see also Idaho Code § 19-5306(1)(b).
[xxx] Idaho Code § 19-5306(1)(h).
Are Career Prosecutors Going the Way of the Dinosaur? Challenging Days for Ministers of Justice in the 21st Century by Brian D. Naugle
by Brian D. Naugle
Forty years ago, if you had asked a cross section of the American citizenry how a prosecutor spent his or her days, you’d have been more likely to get answers that spoke of professionalism, integrity, justice, and the like. You’d get different answers today. Today, police officers and prosecutors that do bad things get loads of attention because they are supposed to be good people doing difficult work for the right reasons. And maybe that’s the way it should be.
The very nature of law enforcement demands a level of honesty and integrity for which there is no comparison. The power to take away the freedom of any American ought to be handled with the greatest of care and those that fall short of the calling, lofty as it is, should expect to have farther to fall. On the other hand, it is worth recognizing that when the folks working in law enforcement do live up to the lofty expectations, little attention is paid because the result is that which we (Idahoans at least) have come to expect – safe communities where crime is both punished and deterred, and law-abiding people are allowed to live their lives in peace.
Sure, you occasionally hear about the lifesaving heroics of police officers, but few of those stories ever see the light of day. Your average police officer who keeps the peace, treats people with respect, and responds to your emergencies at a moment’s notice may never be hailed a hero. The prosecutor who charges the criminal with the crime he committed, brings him into court, and holds him to account in a court of law just the way the justice system intended, can expect the whole thing to go unnoticed in all but the rarest of cases. And most of us are just fine with that – prefer it, in fact. But the fact remains that from Atticus Finch to Saul Goodman, we Americans have always been more interested in the story of the clever, underpaid defense attorney single-handedly outsmarting – once again! – the powerful, power-hungry prosecutor who, despite his infinite resources, just can’t seem to charge the right guy or see the truth right in front of him.
These days, if you were to ask the average citizen how they believe prosecutors spend their days, a good number of folks would opine that prosecutors find people they don’t like, conjure up crimes they didn’t commit, and then set about proving said crime in whatever way that suits them, the truth be damned. Though I acknowledge they are out there, I’ve yet to meet one of these prosecutors. In my near twenty years as a county prosecutor in Idaho, I have never once gone in search of a crime that fit my chosen defendant, nor can I think of a single colleague that has done so. If people were to stop committing crimes tomorrow I would gladly close up shop and reacquaint myself with a few trout streams that have no doubt missed me over the last twenty years. I stay plenty busy with the cases that find their way to me; I need not go looking for them.
If you’re doing it right, the work of a prosecutor is abundant, not very glamourous, and for lack of a better term, hard. The daily life of a prosecutor is full of hard cases, hard decisions, hard days, and hard nights. And I’m not just talking about the legal work that comes with being a prosecutor. Sure, that can be challenging too, but that’s not the hard part. The really hard part is best described day by day. Allow me to share with you some memorable days in the life of this prosecutor.
I remember the day I walked through a house that, just a few hours before my arrival, contained a peacefully sleeping family but now contained that same family, all of whom had been bludgeoned to death, shot to death, or both. This once peaceful family now lay deceased, having just experienced the terror of being murdered in their own home. I remember trying to make sense of the blood smeared on the hardwood floor, the knife stuck in the wall, and the garden shovel laying in the middle of the room. I remember hoping and praying that we would catch the person or people that did this horrible thing.
I remember the day I came to the agonizing realization that I lacked the evidence to charge a guy who brutally beat and raped an eighty-year-old woman. We were pretty sure we knew who committed that awful crime, but we all agreed that given the evidence we had, along with the rules that limited the use of that evidence, we just weren’t going to be able to present a criminal case that surpassed the reasonable doubt threshold. Worse yet, we were out of leads in the investigation, so we simply couldn’t file charges. The man that committed that horrific crime walks among us today, just as free as you and I. The day we explained to the victim and her family that criminal charges would not be filed, that there would be no justice for her, no retribution for the horror she suffered, and no punishment for the coward who committed the crime, was a hard day.
I remember the first day I was accused in an official court filing of prosecutorial misconduct for – angels of mercy, defend us! – correcting the defense attorney’s inaccurate description of the State’s burden of proof for a self-defense claim during my rebuttal closing argument. I also remember the first time a State Bar investigator called to kindly inform me that a child sex offender had filed a bar complaint against me for something I didn’t say during his trial and that I was being investigated for the complaint. The Court’s dismissal of the misconduct accusation and the State Bar’s dismissal of the complaint offered some consolation but the fact that the allegations could be made without impunity is and remains to this day, unsettling.
I remember the day I brought home the mug shot of a particularly deranged defendant I was prosecuting and put it inside one of the kitchen cupboard doors where the kids couldn’t see it, but my wife could. I told my wife that if the fella in that picture ever came to our door to call the police, get the pistol, and do not, under any circumstances, open the door.
I remember every one of the dozens of days I’ve spent sitting with grieving mothers and fathers, sons and daughters, and brothers and sisters who had lost loved ones as a result of some manner of homicide. I remember the pain and grief seared on their faces as I sat across a table from them in a sterile conference room, the confusion and sadness still fresh in their expressions.
I remember making sure not to tell them that I understood how they felt because I didn’t and hoped I never would. I remember explaining to each of them that while the wheels of justice turn slow, they still turn and ultimately, we wind up in the right place. I remember the questions bouncing around in the back of my mind every time I said those words. What if this is one of those cases where justice does not prevail? What if I make a mistake that ruins this case and the person who did this never gets convicted? What will I tell these people then?
Fortunately, I don’t remember every day I’ve spent watching awful videos and graphic pictures or reading heart-breaking descriptions of unimaginable cruelty visited upon children and the elderly and innocent people of every walk of life. Unfortunately, I don’t remember them all because there are too many of those days to count.
I could go on, but you get the point. My days, and those of my colleagues, come with some very hard tasks, but we do the work because it is honorable and rewarding and – here is the kicker – because our communities tend to see it as such.
If you’re doing it right, the work of a prosecutor is abundant, not very glamourous, and for lack of a better term, hard.
We understand the value in having a society built on the rule of law, where everyone has an equal chance to make something of themselves and to do so without the fear of getting murdered or mugged along with the certainty that those who do commit such crimes will be swiftly and fairly punished for them.
I did not become a prosecutor for money, fame, or glory because there is little of those things to be had and anyone who enters law enforcement for such motivations should be met with suspicion anyway. I do the work, with its sacrifices, challenges, and difficulties, because I believe in it, I am willing to accept the great responsibility that comes with it, and I understand it to be valued by the communities in which we live.
What happens if our citizens, our communities, and our politicians remove that last motivation? What sane person will become a police officer and risk his or her life for others when they run the risk of being perceived not as a hero but as one of the bad guys – the enemy from whom the public must be protected? Who will want to become a prosecutor, doing difficult, demanding, and often overwhelming work for minimal pay if, regardless of the quality of their work, they are seen as overzealous tyrants who seek nothing but to fill prisons with the guilty and innocent alike?
When I started my career as a prosecutor in Ada County nearly twenty years ago, the thought never occurred to me that I would one day be seen as a villain in this American Justice System of ours but, like it or not, that day is here.
The most common question I get these days from strangers, and sometimes even friends, is, “how do you sleep at night knowing that so many of the people you’ve convicted and sent to prison are probably innocent?” The question itself is reflective of a narrative that media outlets and various criminal defense organizations have carefully cultivated over the course of the last several decades; the idea that hordes of innocent people are convicted by overzealous or dishonest prosecutors every day. This idea is, of course, nonsense.
Speaking from my own experience, I can say without hesitation that I have never, nor will I ever, convict a factually innocent person of a crime he did not commit. I take as much pride in ensuring that the innocent are spared the weight of the government’s authority as I do in ensuring that the guilty are made to stand in a courtroom and either profess their guilt knowingly and voluntarily or be told of it after a fair trial, preferably within 180 days. Having watched and worked with many other prosecutors for nearly twenty years, I have a hard time believing I am in the minority in this respect.
I have, however, watched scores of factually guilty defendants avoid conviction for the crimes they’ve committed, whether by acquittal, suppression of evidence, crimes that simply go unsolved, or – an increasingly common phenomenon – a lack of law enforcement resources.
Sure, we all understand that the Constitution and our system of justice is built for the very purpose of protecting the innocent at the expense of allowing some of the guilty to go free, but as a prosecutor tasked with safeguarding our communities from those that would do them harm, that can be a tough pill to swallow. As prosecutors, we expect the high burden of proof, the rules of evidence, the prohibition against unreasonable searches and seizures, and the jury system itself to result in some guilty people evading justice. But until recently, I never expected the guilty to evade justice because we lack the people to do the work.
The ability of state and local governments to effectively respond to crime in their communities is only as good as their ability to hire and recruit law enforcement – both police and prosecutors – willing to do the work for the right reasons. But the simple fact is that the number of people who seek careers in law enforcement these days is not growing.[i] As it turns out, doing a very difficult and dangerous job for little pay and for which you may be shot, killed, sued, or vilified is something smart, capable people are reluctant to sign up for. As I write this article, the number of fully staffed police departments and prosecutor offices in the State of Idaho is rapidly declining. And if similar trends in other states are any indication, we are on the front end of this unfortunate phenomenon. Western states such as California, Oregon, and Washington are seeing massive declines in their ability to recruit and retain law enforcement with no end in sight.[ii]
Whatever we do to solve this problem, we would all – especially those of us in the legal profession – do well to do it with the recognition that a few bad apples in law enforcement does not mean the entire tree is rotten. We do our country and our communities a great disservice by making villains out of the honorable and the dishonorable alike.
I have been fortunate enough to work with a host of outstanding mentors and colleagues in this profession who belong quite squarely in the honorable category. They taught me what it means to be a minister of justice – to remain devoted to the rule of law, to defend the Constitution and the freedoms it guarantees, and above all, to see that the truth remains my guiding star in every case. I don’t know if those mentors and colleagues, if they were choosing careers today, would choose a career in law enforcement.
If we expect honorable people like these to keep doing the hard work that nobody notices, we’d best recognize just where our safe streets and quiet neighborhoods come from, lest we run the risk of surrendering those streets and neighborhoods to the wolves. If we do that, all the defense attorneys in the world, decent and respectable though they may be, will not save us from the wolves, for they seek to save the wolves from me. Here’s hoping our future holds enough of us to defend the gates.
Brian D. Naugle
Brian D. Naugle is the Valley County Prosecutor, having held that position since January of 2021. Prior to that, he spent sixteen years as a Deputy Prosecutor in Ada County. He lives with his wife and children in McCall, Idaho.
[i] See Gershowitz, Adam M., The Prosecutor Vacancy Crisis (Dec. 15, 2023). William & Mary Law School Research Paper No. 09-480, Available at SSRN: https://ssrn.com/abstract=4666047 or http://dx.doi.org/10.2139/ssrn.4666047; Bart Jansen, Police departments facing “historic crisis” in finding, keeping officers should make changes: DOJ report, USA Today (2023), available at https://www.usatoday.com/story/news/politics/2023/10/17/police-recruitment-retention-justice-department-report/71216818007/ (last visited Mar. 28, 2024).
[ii] See Magnus Lofstrom, Brandon Martin & Andrew Skelton, California’s Notable Declines in Law Enforcement Staffing, Public Policy Institute of California (2023), available at https://www.ppic.org/blog/californias-notable-declines-in-law-enforcement-staffing/ (last visited Mar. 28, 2024); Charles Fain Lehman, Portland’s Police Staffing Crisis: What it is, why it is, and how to fix it, Manhattan Institute (2023), available at https://manhattan.institute/article/portlands-police-staffing-crisis (last visited Mar. 28, 2024); Laurel Demkovich, Washington lawmakers look to recruit, retain more law enforcement officers this session, The Spokesman-Review (2023), available at https://www.spokesman.com/stories/2023/feb/06/washington-lawmakers-look-to-recruit-retain-more-l/ (last visited Mar. 28, 2024).
The Dynamic Role of County Prosecutors: Nurturing Local Leadership and Community Engagement by Robert H. Wood
by Robert H. Wood
The conventional image of a county prosecutor as a courtroom figure tasked solely with handling cases brought by local law enforcement is antiquated. To whatever extent this perception may have been accurate in the past, it no longer encapsulates the multifaceted role of county prosecutors in Idaho.
Today, county prosecutors fulfill a vital function that transcends the courtroom: serving as community leaders in the pursuit of justice, public safety, crime prevention, and legal counsel for their respective counties. Community engagement has emerged as a linchpin in the prosecutor’s mission, with outreach serving as a conduit for fostering partnerships and collaboration among stakeholders.
A Prosecutor’s Authority, Responsibilities, and Leadership Role
The legal authority of county prosecutors to prosecute cases is firmly rooted in the Idaho Constitution and statutes.[i] According to Idaho’s Constitution, a prosecuting attorney is elected for each organized county by its qualified electors.[ii] The Constitution further mandates that the prosecuting attorney must be a practicing attorney at law and a resident and elector of the county for which they are elected.[iii]
Additionally, Idaho Code Section 31-2604 delineates the duties of county prosecutors, including: (1) the prosecution of felonies and misdemeanors within their jurisdiction, (2) provision of legal counsel to county commissioners, and (3) handling of city/municipal misdemeanors through contractual agreements. They shall receive such compensation for services as may be fixed by law.[iv] County prosecutors are also responsible for holding local governments and officials legally accountable to the people. In the execution of these responsibilities, prosecutors spend extensive time in courtroom proceedings/litigation. Preparation for these proceedings requires reading police reports and witness statements, examining evidence, providing discovery, witness preparation and often requesting follow-up investigation from law-enforcement.
The time spent prosecuting crimes in court is increasingly just one facet of a county prosecutor’s duties. In today’s landscape, prosecutors find themselves engaged in both broad and niche areas such as child protection cases with the Department of Health and Welfare and collaboration with mental health services for individuals facing mental health crises. County Prosecutors share jurisdiction over child protection actions with the Idaho Attorney General.[v]
Idaho’s evolution from a district attorney system to the office of the County Attorney, was accomplished in 1896 by a constitutional amendment to Article 5, Section 18.
Since that time, the election of County Attorneys underscores the significance of local representation in selecting county prosecutors. Allowing the members of each county to choose their local prosecutor was wise in 1896, and it is still wise 128 years later. Local governments generally have more influence on our lives and livelihood than state and national government, making it even more important that individuals in each county have a voice in choosing who represents them.
Additionally, prosecutors serve at the center of the criminal justice ecosystem, providing important checks and balances that allow the system to work properly. By actively listening and communicating, prosecutors can foster transparency and understanding for anyone working in or affected by that ecosystem. Gallup polling reports that Americans tend to trust local government more than other forms of government.[vii] Local prosecutors should continue to build on that trust by being open in their outreach to community members.
Challenges of a Growing Idaho and Local Responsiveness
Government closest to the people is more likely to be responsible to the people it represents, more effective in that representation, and more responsive to the individuals and local needs of a community.
In 2022, Idaho was the second fastest growing state,[viii] and in 2023, Idaho was deemed the fourth nationally in percentage growth in the country.[ix] As Idaho experiences rapid growth, each county grapples with distinct challenges, demographic shifts, and evolving priorities. For instance, the transformation of Madison and Teton Counties – which border each other in the Southeastern corner of the state – from small agricultural communities to diverse economic landscapes illustrates the dynamic nature of Idaho’s counties.
When originally settled, these two counties were both primarily small agricultural communities that shared many of the same pioneering families. With the growth in Southeast Idaho in recent years[x], the two counties are now very different from one another. While both counties fortunately still maintain much of their agricultural heritage, Teton County has relied increasingly on tourism and the outdoor industry for growth.[xi] Meanwhile Madison County has rapidly grown and become more of a “college town” due to the growth of BYU-Idaho in Rexburg.[xii] This growth has created changes in demographics, local priorities, and political values.
County prosecutors elected by the local populations are best situated to effectively respond to these changes. The imperative for local responsiveness has never been more pronounced. With the current trend of low trust and confidence in government[xiii], the democratic process of electing local county prosecutors ensures accountability, effectiveness, and responsiveness to local needs and is more important than ever.
Embracing Community Outreach
In the context of Idaho’s growth and evolving communities, community outreach has never been more important and emerges as a pivotal tool for county prosecutors. Each county’s outreach strategy must reflect its unique characteristics to engage stakeholders effectively. As leadership author John Graham aptly notes: “It’s (leadership) not simply a set of rules to be followed, but an ability to build relationships . . .. Good leaders don’t depend on their position to give them authority; they depend on earning trust. They don’t mandate good performance from those they lead; they inspire it.”[xiv]
While the prosecutor’s traditional role as a courtroom litigator is still important, prosecutors increasingly need to involve their communities and stakeholders to fulfill their mission of pursuing justice, prosecuting crime, and providing for community safety. With the rapid change in Idaho counties, that outreach will look different in each county. What works in one community may not work in another community. Prosecutors can, and should, embrace a style of leadership that accounts for the local values and priorities, invites input from their community, and helps to empower the people who live there. One way to accomplish this is to look for ways to invite public input. This can be done easier than ever before with official social media or websites where the public can comment. Also, the value of meeting face-to-face in a townhall setting can never be overestimated.
Community outreach catalyzes trust-building, transparency, and collaboration. By actively engaging with constituents, prosecutors gain invaluable insights into community concerns, perceptions, and priorities, thereby fostering a stronger sense of accountability and legitimacy.
Preventing Crime Through Partnership
Partnerships with community stakeholders are indispensable for crime prevention initiatives. Collaboration with the people we represent aids in their understanding of the criminal justice system and their role in keeping their communities safe. Programs like Adolescents Making Progress (“AMP”) in Madison County exemplify these collaborative efforts and help communities shepherd youth away from criminal activity.
AMP consists of prosecutors, school resource police officers, education leaders (school principals, vice principals, teachers, etc.) and juvenile probation. AMP meets regularly to discuss at-risk youth and looks for solutions to help those youth before they become involved in the juvenile justice system. Alternatively, for those children who have been charged, AMP looks for ways to support them in their probation/diversion programs and to help re-engage them in their education.
Educational outreach initiatives aimed at children and young adults play a pivotal role in preventing criminal behavior and promoting legal literacy. Through school assemblies, community workshops, and public awareness campaigns, prosecutors can educate children and their parents about emerging threats such as internet crimes against children engage youth and empower individuals to make informed decisions and avoid victimization. Addressing elder fraud crimes has a similar approach, as prosecutors work with senior centers to help educate older adults and their adult children to protect their retirement accounts.
Collaborative Relationships
Effective collaboration with law enforcement agencies, victim services, advocacy centers, and social service agencies underscores the prosecutor’s commitment to holistic justice. Maintaining professional relationships with law enforcement ensures seamless information-sharing, adherence to due process, and enhanced public trust in the criminal justice system. While prosecutors must avoid being a rubber-stamp for police, the importance of maintaining appropriate and productive relationships with our law enforcement partners cannot be overstated.
Similarly, the relationship of the Prosecutor’s office with misdemeanor, juvenile, and felony probation is necessary to ensure that probationers follow through on their commitment to probation. In Madison County, a strong emphasis is placed on working with juvenile probation in multiple groups and programs such as the aforementioned AMP, our Multi-Disciplinary Teams, and our diversion program to help youth learn from their mistakes, focus on their education, and grow to become productive citizens.
Victim advocates play a crucial role in supporting and empowering victims throughout the legal process, safeguarding their constitutional rights, and facilitating access to essential social services. Too often, a victim may have apprehension about taking part in the legal process, even when they have been physically harmed.
Victim advocates aid prosecutors in communicating with victims and understanding each victim’s concerns, needs, and preferences. In cases where a victim may be in danger from a defendant, victim advocates can provide safe housing and help in obtaining civil protection orders. Without local relationships with service providers, our ability to assist in keeping victims safe would decrease dramatically.
"While the prosecutor’s traditional role as a courtroom litigator is still important, prosecutors increasingly need to involve their communities and stakeholders to fulfill their mission of pursuing justice, prosecuting crime, and providing for community safety."
Increasingly, advocacy and social service centers for both adults and children are providing resources that help prosecutors and law enforcement by providing rooms for forensic interviews of children and rooms for Sexual Assault Nurse Examinations. These services aid victims by limiting the number of offices, hospitals, and police departments they must visit to properly report abuse. Victim advocates are a voice for victims and help prosecutors ensure that victims’ rights are protected throughout the life of the criminal case.
When collaborating with victim’s services, it is necessary to remember that the victim advocate’s mission will sometimes lead to different goals for a case than the prosecutors. Open, honest, and frequent communication between prosecutors and victim advocates is crucial to maintaining a professional, working relationship.
Conclusion
As Idaho continues to experience population growth and the accompanying shifts, the role of county prosecutors in Idaho necessitates a proactive, customized, and multifaceted approach to leadership, community engagement, and crime prevention. As legal representatives of their communities, county prosecutors must always remain steadfast in their commitment to justice, accountability, and public safety. But by embracing community outreach, fostering collaborative partnerships, and prioritizing local responsiveness, prosecutors can effectively navigate the complexities of modern law enforcement and safeguard the unique interests of their constituents.
Robert H. Wood
Robert H. Wood has been the Madison County Prosecutor since January 2020. He started working in that office in 2014. Prior to that he practiced water law and criminal defense for five years at Rigby, Andrus & Rigby in Rexburg. He enjoys hiking and skiing/snowboarding with his wife and three kids.
[i] Idaho Const. art. V, § 18; Idaho Code § 31-2604.
[ii] Idaho Const. art. V, § 18.
[iii] Id.
[iv] Id.
[v] Idaho Code § 16-1610.
[vi] Idaho Constitutional Amendment History, Idaho Secretary of State. https://sos.idaho.gov/elect/inits/hst92_18.htm.
[vii] Jeffrey Jones, Americans Trust Local Government Most, Congress Least, GALLUP, October 13, 2023. https://news.gallup.com/poll/512651/americans-trust-local-government-congress-least.aspx.
[viii] Clark Corbin, Idaho was second-fastest growing state in the U.S. in 2022, IDAHO CAPITAL SUN, January 4, 2023. https://idahocapitalsun.com/2023/01/04/idaho-was-second-fastest-growing-state-in-the-u-s-in-2022/.
[ix] Nick Rosenberger, Idaho Population Could Hit 2 Million Any Day Now, Passing Nebraska, Thanks California!, IDAHO STATESMAN, January 15, 2024. https://www.idahostatesman.com/news/business/article283986238.html.
[x] Eastern Idaho – Power of Place!, Rediconnects.Org. https://www.rediconnects.org/media/2tpha5dy/eastern-idaho-profile-5-26-22.pdf.
[xi] Brittany Skelton, Recreation Planning & Implementation in Southern Teton Valley, Idaho, The Western Planner. https://www.westernplanner.org/2020articles/2020/7/15/recreation-planning-amp-implementation-in-southern-teton-valley-idaho.
[xii] Jakob Thorington, Census Projects More Accurate Rexburg Population Than 2010 Census, REXBURG STANDARD JOURNAL, August 30, 2021. https://www.rexburgstandardjournal.com/news/local/census-projects-more-accurate-rexburg-population-than-2010-census/article_d903e102-091d-52d6-ba13-c44dd079d179.html.
[xiii] Trust in Government, GALLUP. https://news.gallup.com/poll/5392/trust-government.aspx.
[xiv] John Graham, Outdoor Leadership: Technique Common Sense & Self-Confidence 11–12 (1997).