Lawrence Smith
Lawrence G. Smith 1955 - 2012 Lawrence G. Smith died at his home in Boise, ID on March 9th,
2012. Larry was born March 22nd, 1955 in Asheville, NC to Loyce Jones Smith and Duaine Allan
Smith. Larry attended public schools in Lincoln, NE, Klamath Falls, OR and Boise, ID, then enlisted in
the U.S.Army. After his discharge, he attended Boise State University, earning the degree of B.A. in
English. Upon graduation he was awarded the BSU Silver Medallion. He chose Duke Law School to
complete his education with a J.D. degree. Jones Day in Columbus, OH was his first employment as
an attorney. In 1988, Larry and his family moved to Boise, ID. After a brief employment with Holland
and Hart, Larry worked for the Ada County Public Defender's Office until the time of his death. Before
obtaining his education, he had worked in Idaho and Oregon as a farm hand, drug store helper,
sawmill worker and welder. His main hobbies were reading, ammunition reloading and dilettante
artistic efforts. Special interests were such outdoor activities as camping, hunting, cycling, skiing and volunteering as a
youth soccer coach. He was a member of the Idaho Bar Association and the NRA. Larry is survived by his son Tyler T
Smith, daughter Rebecca Joan Smith Brierley, mother Loyce Smith, close cousins Sara Jones Montgomery and Russell
Jones, half brother John Smith and family, three ex-wives, many girlfriends and MANY, MANY who loved him. He was
preceded in death by his father Duaine Smith, cousin Mike Smith and beloved dog Zonker. Donations may be made to the
Helen Lojek Scholarship Fund at BSU. A Memorial service will be held in the Idaho State Veteran's Cemetery at 1 PM on
Friday March 16th. A reception will follow at Woody's Pub and Grill from 2 PM to 6 PM.
CDA Press: Attorney seeks photo in sex abuse case-Mar. 16
LEWISTON (AP) — The attorney for a northern Idaho man accused of lewd conduct with a 9-year-old girl wants to submit pictures of his
client's genitals to the court as evidence, with the state paying for a professional photographer. Lewiston public defender Danny
Radakovich recently filed the motion on behalf of 41-year-old Jimmy J. Compton, who was charged in December with three felony counts
of lewd conduct with a child. Radakovich says the court should pay to have pictures taken of Compton because the child's description of
his private parts is inaccurate. Radakovich says he typically seeks his wife's assistance when taking photographs for cases, but would
prefer not to in this instance. The Lewiston Tribune reports a judge in Idaho's 2nd District Court will hear the motion next Friday.
CDA Press: Prosecutor hopefuls square off BRIAN WALKER/Staff writer Mar. 17
POST FALLS - Donald Gary believes the Kootenai County Prosecutor's Office is "farming out" too many cases to other agencies. "The
team needs a new coach," said Gary, who will challenge county Prosecutor Barry McHugh during the May 15 primary election. McHugh,
who was sworn in in 2009, believes his office has taken on difficult cases and there are reasons some cases are referred on, including if
his staff has been working closely with agencies involved. The Republican candidates squared off during a forum on Friday hosted by the
Panhandle Pachyderm Club at Red Lion Templin's Hotel. Gary said he's concerned about the direction of the Prosecutor's Office. He held
up the February issue of The Advocate, an Idaho lawyer magazine, with a story alleging prosecutor misconduct at multiple agencies,
including Kootenai County. "When I saw this I was upset," Gary said. "Lawyers have to abide by the rules of fairness." But McHugh said
the article refers to cases that were prosecuted before his time in office and that he has a competent and experienced staff to make
improvements. "Talk to people involved in the justice system, courthouse and county," McHugh said. "Talk to them about how it was
before I got there and how it is now. Don't just take my word for it." McHugh fought back tears in his closing statements. "I'm really proud
of our office and what we do," he said. "It's personal to me." Prior to becoming the county prosecutor, McHugh, a Coeur d'Alene native,
was a partner in a local private practice and a prosecutor for the city of Coeur d'Alene, the county, state and U.S. Department of Justice.
During his current job, he helped make blood tests of DUI suspects mandatory at the hospital if they declined to take an optional breath
test. "That's been helpful to law enforcement and my office," he said. McHugh said he has met with police chiefs monthly to improve
communication and that has translated into saving the county money. "My Criminal Division budget is less than the Public Defender's
budget and that may be the first time that's happened," he said. McHugh secured a two-year grant to start the North Idaho Sex Offender
Task Force to help ensure sex offenders are registered and living where they're supposed to be and to focus on child pornography and
child enticement cases. Gary, a principle with the law firm of Winston and Cashatt who has practiced law for 20 years, is a political
newcomer. Prior to becoming an attorney, he was a certified public accountant for 12 years. Gary said the Prosecutor's Office needs to
have an open door for alleged victims of crimes ranging from sexual misconduct to burglary instead of automatically sending the cases to
police. He said he would do his part to ensure it's that way, unlike how some agencies have become. Gary said he would use common
sense and have a cost-benefit analysis done on some cases before litigation takes over or they escalate to the Supreme Court, keeping
taxpayers in mind. "Part of the prosecutor's job is to counsel," he said. Gary said while he can't match McHugh's criminal law experience,
he's up on tax and business laws and confident getting up to speed on the criminal side quickly is within reach. "Lawyers are trained to
learn the law, so I don't think that would be a problem," Gary said.
Idaho Business Review: St. Luke’s being investigated for possible antitrust law violation
by The Associated Press Mar. 18
Officials at St. Luke’s Health System say they are cooperating with an investigation by the Idaho attorney general’s office and the Federal
Trade Commission into whether federal antitrust laws and Idaho’s Competition Act have been violated. The investigation involves the
health system’s acquisitions of medical practices that have made it one of Idaho’s largest employers, possibly running afoul of federal and
state laws intended to prevent monopolies that reduce competition. Idaho Attorney General Lawrence Wasden in a February letter notes
the health system’s possible purchase of the Saltzer Medical Group as a complicating factor, and asks the health group to hold off on the
purchase. “This acquisition, if consummated, directly affects our current antitrust review,” Wasden wrote. The Nampa-based Saltzer
Medical Group also has sites in Boise, Meridian and Caldwell. St. Luke’s, according to its website, has six hospitals in Boise, Meridian,
Twin Falls, Ketchum, McCall and Jerome, along with more than 100 outpatient centers and clinics. “We have grown over the last several
years and it is not uncommon for the FTC to take a look at that to make sure everything is being done properly,” said health system
spokesman Ken Dey. “We have no doubt we’ve done everything right, so we’re going to cooperate fully with everything they need. We
haven’t done (acquisitions) for market share. This has nothing to do with becoming a monopoly.” Besides St. Luke’s Health System, Saint
Alphonsus Health System has also been adding physician practices. But Saint Alphonsus spokeswoman Elizabeth Duncan said it is not
being investigated. Dey said that authorities haven’t asked St. Luke’s to turn over documents, and it’s unclear how much ground the
investigation will cover. Dey noted that the health care industry has become increasingly consolidated, and that reviews of mergers and
acquisitions have also become more common as a result. The Idaho attorney general’s office could opt for legal action, but Wasden in his
letter said he hoped any problems could be resolved “amicably and informally without the need for litigation and court participation.”
Idaho Statesman.com-Lawyer: CWI/BSU instructor, congressional candidate in 'hypomanic state' when she pulled gun at Boise-area store on Friday night Patrick Orr Mar 19
College of Western Idaho officials suspended Cynthia Clinkingbeard from her position as a adjunct instructor of health sciences for
“erratic behavior” two days before she went into a Boise-area Staples store and threatened three employees with a 9-mm handgun, Ada
County prosecutors said Monday. Those threats resulted in the 58-year-old Clinkingbeard being charged with three felony counts of
aggravated assault and one count of use of a deadly weapon on the commission of a crime. That incident also ultimately caused Boise
State to terminate their relationship with Clinkingbeard, who had been adjunct faculty at BSU since 2006 and was teaching a biology class
before she was let go Monday. Prosecutors asked a judge Monday for a $500,000 bond for Clinkingbeard, saying they were concerned
she may have gone to Staples with the gun Friday because she was “stalking” a family member of an employee there — which might be
connected to why she was suspended from CWI. Clinkingbeard’s attorney, Bret Shoufler, told the judge his client was likely in a “hypomanic state” when she went into the store and felt that a better place for her would be in a secure medical setting, like a hospital, instead
of a jail cell. Fourth District Magistrate Michael Oths decided to set bond at $100,000, but also told Shoufler he would be willing to approve
a furlough from the jail for Clinkingbeard when arrangements could be made for a secure room in a medical facility. Shoufler and at least
two other people in court Monday to support Clinkingbeard left without comment. While lawyers on both sides provided some answers as
to what happened, many questions remain. Store employees told police that Clinkingbeard, who filed as a Democratic candidate in the
May 15 primary race for the 1st District Congressional seat held by U.S. Rep. Raul Labrador, walked into the store late Friday and started
to ask about getting campaign posters made. While interacting with those employees Clinkingbeard began “making strange statements
about politics and religion,” like telling those employees they were “going to meet God.” Clinkingbeard was waiting for a ride at the front
of the store when employees told police she pulled a 9-mm pistol out of a shoulder holster and pointed it at the back of a store manager,
turning on a laser targeting system, and telling them if she were anywhere else, she would “cap him.” The employees told police
Clinkingbeard then pointed the gun at least two other employees before leaving the store and driving away. They described the car to
dispatchers. An Ada County Sheriff deputy spotted it driving south on Eagle Road. The deputy, joined by Boise and Meridian police, made
a felony traffic stop. Because Clinkingbeard was reportedly armed, officers closed Eagle Road in both directions for a brief time.
Officers found Clinkingbeard in the car with two other adults. They were apparently unaware of what had reportedly happened at the
store. Police found a gun in the car. They questioned Clinkingbeard, then arrested her. Clinkingbeard was a physician specializing in
endocrinology, diabetes and metabolism until the State of Idaho Board of Medicine revoked her license in 2005. Clinkingbeard is listed on
the adjunct faculty of health sciences at the College of Western Idaho, and on the adjunct faculty at Boise State University in the
Biological Sciences Department. Boise State officials said Monday Clinkingbeard has been relieved of her teaching duties, citing her
Friday arrest as the reason. Clinkingbeard had taught about two dozen classes at BSU since 2006. Ada County prosecutors did not
elaborate on what “erratic behavior” got Clinkingbeard suspended from CWI, but did ask for a no-contact order for the Staples employees.
Prosecutors also said Clinkingbeard was “stalking” the mother-in-law of a Staples employee, but did not provide any information about a
suspected motive, other than to say that person might be involved in why Clinkingbeard was placed on leave by CWI. A CWI official told
the Idaho Statesman Monday she couldn't comment on personnel matters, but did say Clinkingbeard had been excluded from campus.
Clinkingbeard was teaching an entry-level Health & Wellness course at CWI during the spring semester. She had two classes. Health and
Wellness is a course that “provides an overview of current health topics relevant to students. It stimulates awareness of personal health
decisions and their relationship to optimal self-care patterns and lifestyles,” according to the CWI handbook. When asked if any students
had filed any complaints against Clinkingbeard, CWI officials declined comment, citing personel rules. Clinkingbeard appeared lucid
during her initial court appearance Monday, answering questions clearly and giving Shoufler the thumbs-up sign when she found out he
was there to represent her.
Idaho Business Review: In fight against HR 5, American Association for Justice and
conservative groups form unusual coalition Kimberly Atkins- Mar. 20
As lawmakers prepare to take up the controversial tort reform legislation, the measure is creating a strange coalition of opponents seeking
to stop the bill in its tracks. As we’ve reported in Lawyers USA, the trial lawyers’ group the American Association for Justice has actively
opposed H.R. 5, the Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act. The bill, which would cap non-economic
damages in medical negligence cases at $250,000 and repeal part of the federal health care law aimed at cutting Medicare costs, is set
for a House vote later this week. But AAJ officials say the bill affects far more than medical malpractice cases. It is a “far-reaching bill that
would affect caps on damages, limits on attorneys’ fees, medical negligence law, nursing home cases, medical device and
pharmaceutical cases, and bad faith cases against health insurers,” according to a message to AAJ’s membership. AAJ officials tell me
that the bill would also thwart suits against doctors who commit intentional torts, such as sexual abuse. Meanwhile, conservative groups
such as the Heritage Foundation and the Tea Party movement have also attacked the measure, saying it infringes upon states’ rights and
violates the Commerce Clause, according to the InjuryBoard’s Andrew Cochran. Cochran quotes the Heritage Foundation’s Hans von
Spakovsky’s statement on the group’s blog The Foundry: “The problem with most of the proposed reforms in H.R. 5 is that the law
governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5’s reliance on the Commerce Clause, Congress
has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims,”
Spakovsky writes.
Idaho Statesman.com: Opening hours of Bujak preliminary hearing dominated by county
commissioner testimony Kris Rodine — Mar 20
Preliminary hearing for former Canyon County Prosecutor John Bujak on felony charges of stealing $236,000 from the county at the
Canyon County Courthouse on Tuesday, March 20, 2012. KATHERINE JONES — Katherine Jones / [email protected]
The first substantial criminal court hearing for former Canyon County Prosecutor John Bujak, charged with stealing $236,000 from the
county via a prosecution contract with the city of Nampa, devoted its first four hours to county commissioners discussing the history and
expectations of that contract. All three commissioners -- David Ferdinand, Kathy Alder and Steve Rule – testified that they approved the
nearly $600,000 Nampa contract at Bujak’s suggestion and with the expectation that the county would benefit by receiving several
hundred thousand dollars beyond what it actually cost to carry out the contract. That money, estimated by commissioners as between
$300,000 and $400,000, was to be used cover all non-salary expenses in the county prosecutor’s office, they said. The commissioners
and Nampa City Attorney Terry White all said they were told Bujak would not personally profit from the Nampa contract, even after the
contract was changed in September 2009 to call for the $50,000 monthly payments to go directly to a trust account accessible only to
Bujak. The initial contract, approved by the city and commissioners in July 2009, called for payments to the county auditor. All three
commissioners testified that Bujak told them that Nampa Mayor Tom Dale was worried about sending the money directly to county control
and the county could lose the contract if money was not paid to a dedicated trust account controlled by Bujak. White said he was not
aware of any such concerns in Nampa. He said the proposal to change the payment arrangements came from Bujak, and the city wasn’t
concerned about why he wanted it changed. He said the revised contract was with County Prosecutor Bujak, not with Bujak as an
individual, and the revision did not change the city’s understanding of the parties in the contract. Under questioning from defense attorney
Rolf Kehne, White agreed that Nampa City Councilman Stephen Kren had repeatedly expressed concerns about contracting with the
county, saying that in past contracts the county increased its charges every year. Kren was the lone vote against the city’s contract with
Canyon County. After the contract was amended, commissioners said their understanding was that the money would be held in trust for
the county and ultimately all of the Nampa funds would go to the county. They said they didn’t know until much later that Bujak intended to
keep some of the money. In fact, Thompson said, Bujak started transferring money from the trust account to his personal account almost
immediately after Nampa payments started flowing into the trust account. Defense attorney Nancy Callahan questioned Ferdinand’s
statements that he didn’t know Bujak would profit, introducing statements in a June 2010 budget hearing and emails around that time that
clearly indicated Bujak expected to see some profit after all expenses were paid to the county. Minutes from the June budget hearing
included statements from Bujak that “I’ll pay Nampa (contract) expenses and make sure county is completely compensated for any
resources” used, then “any money that is left in the contract is mine to do with as I please.” Thompson objected, saying those statements
were irrelevant to this case because the two grand theft charges against Bujak are limited to money he took from the trust account before
June 2010 – before commissioners learned that he expected to see some profit. Commissioners have said Bujak owes the county around
$300,000 he collected from Nampa before he resigned as prosecutor Sept. 30, 2010, but he is not charged in connection with money
taken in the last few months of his tenure. Bujak said publicly around that time that he thought he might personally get around $50,000
from the contract if he handled the contract efficiently. Commissioners said at the time they had no problem with him seeing some profit,
because the county itself expected to realize around $300,000 beyond the cost of handling the Nampa prosecutions. Bujak told
commissioners and the media that the Nampa proceeds would cover all non-personnel costs for the prosecutor’s office as a whole.
The preliminary hearing will not determine guilt or innocence but is held to determine whether there is enough evidence to send the felony
case to 3rd District Court for trial. Preliminary hearings are generally much shorter, with fewer witnesses, than trials. Bujak’s preliminary
hearing is shaping up to be unusually long. Prosecutors were in the midst of their case at 3:30 p.m. Tuesday, and testimony is expected
to continue well into Wednesday with remaining prosecution witnesses, then defense witnesses. The county commissioners may be
recalled as defense witnesses, and other planned witnesses include Nampa Mayor Tom Dale, County Treasurer Tracie Lloyd and the
lead Idaho State Police investigator in the case against Bujak.
Idaho Statesman.com: Did Bujak’s actions constitute felony theft? Kristin Rodine
— Mar 21
Former Canyon County Prosecutor John Bujak, right, was in court Tuesday in Caldwell for a preliminary hearing on felony charges of
stealing $236,000 from the county. A full day of prosecution witnesses asserted Tuesday that former Canyon County Prosecutor John
Bujak assured them he would not personally profit from his nearly $600,000 contract to use county resources to handle misdemeanor
cases for the city of Nampa. But when Sam Laugheed, the deputy prosecutor who helped draft the contract and letters selling it as a good
idea, responded to citizens’ public records requests by saying that all contract money not used for Nampa prosecution expenses and
salary bumps would go to the county general fund, he “got a dressing-down” from Bujak’s right-hand man, Laugheed testified. “I was in
trouble … for having articulated ... how it worked,” Laugheed said of his meeting with Bujak Chief of Staff Tim Fleming. He said he was
told he had the wrong idea about the contract —that it was private and that Bujak was allowed to profit from it. “To my mind it was a lot of
rationalization and justification,” Laugheed said. Defense attorney Rolf Kehne repeatedly pointed out that county commissioners
successfully defended against a public records lawsuit in spring 2010 by asserting that the Nampa contract was Bujak’s private property.
Commissioners said those assertions applied to the bank records for the private trust account Bujak set up for the Nampa contract, not to
the money in that account. That money was held in trust for the county, commissioners said, and Bujak was expected to pay the county
between $300,000 and $400,000 that fiscal year. Instead, Bujak resigned on Sept. 30, 2010 — the end of that fiscal year. A criminal
investigation resulted in Bujak’s arrest in late 2011 on two charges of grand theft. Lead defense attorney Nancy Callahan stressed that
Bujak did pay the county about $171,000 from the 2010 contract and $150,000 from 2009 contract payments, plus about $18,000 a month
to cover staff salary increases for taking on the extra Nampa work. And she noted Bujak’s public assertion, at a commissioners’ meeting
in June 2010, that after paying Nampa expenses and compensating the county for resources used, that “any money that is left in the
contract is mine to do with as I please.” Special Prosecutor Bill Thompson said those statements are irrelevant to this case because the
two grand theft charges are limited to money Bujak took from the trust account before June 2010. That’s why he is charged with taking
$236,000 from the county, not the more than $300,000 initially alleged. The preliminary hearing, held to determine whether there is
enough evidence to try Bujak on the felony charges, will continue Wednesday in front of Senior Magistrate Judge James Peart. Witnesses
will include the state police officer who led the investigation into Bujak’s handling of the contract. Before the hearing, Bujak said he was
looking forward to the process beginning. “It’s been a year and a half,” he said. “Let’s get it started.”
CDA Press: Court sides with Sacketts over EPA Mar. 21
WASHINGTON (AP) — The Supreme Court has sided with an Idaho couple in a property rights case, ruling they can go to court to
challenge an Environmental Protection Agency order that blocked construction of their new home and threatened fines of more than
$30,000 a day. Wednesday's decision is a victory for Mike and Chantell Sackett, whose property near a scenic lake has sat undisturbed
since the EPA ordered a halt in work in 2007. The agency said part of the property was a wetlands that could not disturbed without a
permit. In an opinion by Justice Antonin Scalia, the court rejected EPA's argument that allowing property owners quick access to courts to
contest orders like the one issued to the Sacketts would compromise the agency's ability to deal with water pollution. "Compliance orders
will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to
question their validity," Scalia said. In this case, the couple objected to the determination that their small lot contained wetlands that are
regulated by the Clean Water Act, and they complained there was no reasonable way to challenge the order without risking fines that can
mount quickly. The EPA issues nearly 3,000 administrative compliance orders a year that call on alleged violators of environmental laws
to stop what they're doing and repair the harm they've caused. Major business groups, homebuilders, road builders and agricultural
interests all have joined the Sacketts in urging the court to make it easier to contest EPA compliance orders issued under several
environmental laws. Justice Ruth Bader Ginsburg said in a separate opinion that the only issue decided by the court Wednesday is the
Sacketts' ability to contest the EPA finding that their property is subject to the Clean Water Act. The court did not decide largers issues,
Ginsburg said. "On that understanding, I join the court's opinion," she said. In another separate opinion, Justice Samuel Alito called on
Congress to clear up confusion over the reach of the Clean Water Act. Alito said that federal regulators could assert authority over any
property that is wet for even part of the year, not just rivers and streams. The court's opinion "is better than nothing, but only clarification
of the reach of the Clean Water Act can rectify the underlying problem," Alito said. In 2005, the Sacketts paid $23,000 for a .63-acre lot
near scenic Priest Lake. They decided to start building a modest, three-bedroom home early in 2007. They had filled part of the property
with rocks and soil, in preparation for construction, when federal officials showed up and ordered a halt in the work. In a statement, the
Sacketts praised the court for "affirming that we have rights, and that the EPA is not a law unto itself."
Idaho Statesman.com: Bujak charge changed, potential penalty unchanged Kristin Rodine Mar. 22
January 2009 John Bujak takes office as Canyon County prosecutor -April 2009 With county consent, he puts in a winning bid to take over
Nampa’s misdemeanor prosecution contract. July 2009 The $600,000 annual contract begins, with payments directed to the county
general fund. September 2009 At Bujak’s suggestion, the contract is amended so payments are sent to a trust account only Bujak can
access. County commissioners approve the move, believing all funds will ultimately go to county coffers. Bujak says he will not profit. May
2010 Nampan Bob Henry files a public records lawsuit to get access to trust account records. Bujak and the county fight it, saying the
account is Bujak’s private property. A judge agrees. Summer 2010 Bujak says at a county budget hearing he is allowed to profit from the
contract after meeting his obligations to the county. Concerned that the county has received no money from the contract beyond expenses
and salary bumps, Commissioner Kathy Alder asks Bujak to make payments on the remaining contract amount rather than waiting until the
end of the fiscal year. Bujak pays $171,000. September 2010 Unable to pay the approximately $300,000 commissioners say he still owes,
Bujak resigns. A criminal investigation begins. November 2010 Bujak files for Chapter 7 Bankruptcy protection. December 2011 Bujak is
charged with two counts of grand theft. Source: Court and county records Former Canyon County Prosecutor John Bujak is still accused of
illegally taking $236,000 from a contract for his office to handle Nampa misdemeanor cases, but now the charge is misusing public funds,
not grand theft. The potential sentence if convicted is the same — up to 14 years in prison — but the new charge is “probably more
accurate” because the allegations involve money Bujak was entrusted with as a public official, Special Prosecutor Bill Thompson said
Wednesday morning. The change in charges abruptly ended a two-day preliminary hearing on the theft charges. Bujak and his attorneys
waived his right for a preliminary hearing on the amended charge, so the case will go directly to 3rd District Court. His arraignment is set
for March 28, but all parties agreed to mediation in an effort to reach an agreement without going to trial. Bujak said after Wednesday’s
hearing he would like to comment, but cannot on the advice of his attorneys. In a Facebook post later Wednesday, he said, “It’s definitely a
move in the right direction.” Thompson said it’s a new charge, not a reduced one. “Some people will say theft carries a certain stigma, but
the charge of misuse of public funds carries a unique stigma because of the public trust involved,” he said, adding that the public-funds
charge wasn’t feasible when Bujak was arrested because Bujak contended the money was his to use under a private contract. That
changed in January when the Idaho Supreme Court, in a related matter, ruled Bujak’s contract was public. No time frame has been set for
the mediation. Thompson said that will depend on the schedule of the mediator. Also on Wednesday, Judge James Peart removed the
requirement that Bujak wear a GPS tracking device.
CDA Press: Gary seeks prosecutor spot Alecia Warren Mar. 22
Holding office was never on Donald Gary's radar before he filed candidacy for Kootenai County prosecuting attorney, he admitted. But the
Post Falls attorney considers his campaign a civic duty, he said, on account of the issues he believes must be redressed at the
prosecutor's office. "I have children, we all have children, and I believe somebody needs to do something," said Gary, 56, a principal and
board member at Winston and Cashatt, Lawyers. Gary, an attorney for 20 years, said topping his list after election would be reducing
prosecutorial misconduct. He alluded to the initial sentencing of Jonathan Ellington, which was thrown out over misconduct involving
improper questioning by a county prosecutor. "How do you address that?" Gary said. "First, you can't tolerate it." He would aim at
improving prosecution by improving training for newer attorneys, he said, as well as building communication with defense attorneys.
He also plans to keep a closer eye on day-to-day office behavior. "I will have a different management style, and rely on senior prosecutors
to work with junior prosecutors to hold everyone to the highest standard of professionalism," Gary said. "You have to make sure everyone
gets a fair trial." Gary said he is also dubious of the number of cases the prosecutor's office refers to other counties. Many, like the trial of
county employee Sandy Martinson who was caught embezzling, could have been legally tried in Kootenai County, Gary contends. "In
these cases, it seems as though political considerations are driving the conflict analysis," he said. "We need to keep our work at home."
Sometimes the law takes attorneys down a path they don't want to go, he added, but he promised to follow evidence where it leads. "If
there is politically embarrassing consequences, then there is," he said. "Sometimes you have to fight and take whatever comes." He
would also strive to keep county attorneys maintaining a professional attitude in the courtroom, he said. "All I'm looking to do is make this
office work for the best interest of the people," he said. Gary, originally from Baltimore, Md., had an earlier career as a licensed CPA.
While working full-time and raising a family, he said, he attended law school at night. Gary is a graduate of Southwestern Law School in
Los Angeles, and was previously principal in his own firm, which had offices in Spokane and Southern California. "I've obviously had
experience with managing organizations," Gary said. His has two grown sons with his wife of 30 years, Kathy. Gary assured he would
approach the prosecutor's office with an independent perspective and focus on professional conduct. "I will do what I think is right, no
matter the consequences," he said.
Idaho Statesman.com: Caldwell man gets life without parole Kristin Rodine
Mar. 22
Theodore Kestner considered using a knife on Jennifer Kirkpatrick last September, but decided that stabbing was “too personal of a
crime,” he told police. “I’m not a stabber. … That’s just not me.” That statement, relayed by Deputy Canyon County Prosecutor Erica
Kallin, was among the new details of the killing revealed during Kestner’s sentencing hearing Wednesday. Instead, said Kallin, Kestner
chose to strangle his former landlady with plastic zip-ties that were tied into a circle and leave her body on her bed for her 19-year-old son
to find. The seven-times convicted felon, 51, will never be free again, 3rd District Judge Susan Wiebe ruled, sentencing him to life in
prison without opportunity for parole. Kirkpatrick, who had once rented a home to Kestner, opened her own house to him last year. Her
offer helped him get parole on a lewd-conduct prison term of five years to life, and his mistaken belief that she aimed to send him back to
finish that term sparked his decision to kill her less than six months later, Kallin said. “I never meant for any of this to happen,” Kestner
said in his brief statement before sentencing. “I became a victim of my own mind. I was desperate. I was mad, I was just really mad.
“Jennifer was a good friend to me,” he said, apologizing to his victim’s gathered family members. “I stand here wanting to be accountable
for my actions.” “It’s a little late,” a man called out from the courtroom benches. WHAT HAPPENED? Here’s how Kallin described the
events surrounding the murder: Kestner lived with Kirkpatrick and her son from his parole early last year until the end of August, when the
53-year-old widow went to Kestner’s parole officer and told him the man needed to move out. Kirkpatrick told the parole officer Kestner
was lazy, was not looking for work and made sexual advances toward her. The parole officer told Kestner to leave, and Kestner moved
into the Lighthouse Rescue Mission. Kestner was angry and grew angrier when he went by Kirkpatrick’s house and saw police officers
outside. The officers were in the neighborhood on an unrelated matter, but Kestner assumed his former landlady had called police to send
him back to prison. On the morning of Sept. 1, Kestner went to Kirkpatrick’s Idaho Avenue home and waited until her son left for work,
about 7:45 a.m. While waiting, he apparently wrote several letters — later found filled with profane, vengeful statements about Kirkpatrick.
He also tried unsuccessfully to hang himself from a tree. Once he entered the home, he picked up a knife, but later put it down and
decided to use zip ties he’d brought with him. He went into Kirkpatrick’s bedroom and confronted her about calling the police, which she
denied. She tried to get away, but he grabbed her and choked her from behind until she was unconscious, then pulled the zip-ties around
her neck so tightly that they were embedded in her flesh. He went upstairs and drank coffee and tea for an hour or more and thought
again about suicide, tying zip-ties around his own neck before cutting himself free. He headed to near Adrian, Ore., and drove his truck off
a cliff in another aborted suicide attempt, jumping free before the truck went over the edge. He hid for several days and held an elderly
couple against their will before letting them go and stealing their guns. He hid in the desert until officers arrested him Sept. 5.
CHILDHOOD TRAUMA Defense attorney Lance Fuisting stressed Kestner’s “terribly sad childhood,” including emotional, physical and
mental abuse from his mother and sexual abuse by at least five individuals. He said Kestner suffers from chronic back problems and
bipolar disorder, and his behavior can be managed by psychotropic drugs. He recommended a sentence that would make Kestner eligible
for parole after 25 years, saying Kestner would be in his 70s then and “recitivism drops with aging.” But Judge Wiebe said it was a
relatively easy to decide to give Kestner no opportunity for parole. “This murder was premeditated; it was cold, calculated and motivated
by Mr. Kestner’s irrational belief that the victim was single-handedly sending him back to prison,” Wiebe said. Although Kestner would
return to prison on his previous life sentence anyway, Kallin said it was essential to make this new life term unbreakable. “Anything less …
basically says that Jennifer’s life was meaningless and it was a freebie,” she said. “Jennifer’s life mattered, and her death should have
meaning as well.”
Idaho Statesman.com: ‘I had crossed the line,’ Boise man in assault case says
Patrick Orr Mar. 22
Fourth District Judge Deborah Bail sent a clear message to Kevin Burke Roberts Tuesday when she placed him for six months in the
Idaho Department of Correction’s program: Prove he is committed to change or go to prison for up to five years. The 22-year-old Roberts
pleaded guilty to a charge of aggravated assault as part of a plea agreement in January, about a month after a jury deadlocked over
whether he was guilty of the charge of rape in connection with an incident last summer. Police say Roberts picked up an intoxicated
woman in the China Blue bar in Downtown Boise in the early-morning hours of July 16 and told her he would drive her home on his
motorcycle. Police say Roberts eventually took the woman to the desert off Gowen Road and had sex with her, choking her until she was
unconscious, then leaving her there. Roberts has maintained since his arrest in July that the sex with the woman was consensual and that
the woman got angry with him only when it was over, which is why he left her in the desert. In the plea agreement, Roberts did admit to
putting his hands around the woman’s neck in an “attempt to commit a violent injury,” according to court records. Roberts apologized for
that Tuesday. “I understand there are behaviors society deems unacceptable, and I had crossed the line,” Roberts said. “As a result, I
ended up victimizing (the woman) ... I am extremely sorry for that.” “Looking back, I can see (she) does not share the same liberal sexual
views I did. ... I never meant to harm (her).” Roberts, who has been in jail since his arrest last summer, also told Bail that he has taken
stock of his life and is trying to change his behavior, saying he was too wrapped up with the drinking and hook-up culture of bars
Bail said she was deeply disturbed by the case and said she had “rarely seen such a dishonest display of testimony.” In Roberts, she
said, she “saw a fundamentally dishonest person.” Bail said the woman’s trial testimony made it clear she was “shattered” and
“traumatized” by what happened, and that the woman was extremely intoxicated and vulnerable when she met Roberts. Bail said Roberts’
actions showed a “deep de-humanization of the victim.” His explanation was “callous.” “Nothing that she did warranted what happened to
her,” Bail said. Bail sentenced Roberts to a five-year prison term, but placed him on retained jurisdiction, commonly known as the rider
program. Prosecutors agreed to recommend the rider as part of the plea agreement, and Bail granted that request. That treatment
program lasts for six months at an IDOC facility. When that is over, Bail will study reports generated by the IDOC staff and decide if
Roberts should go to prison or be released on probation. Roberts’ attorney, Scott Gatewood, asked Bail to put Roberts on probation
immediately, saying Roberts had already spend eight months in jail and would benefit more from getting treatment in the community.
Bail disagreed and said the rider will be a good test to see if Roberts is committed to change. “The defendant is someone I simply don’t
trust,” Bail said. The victim did not attend Tuesday’s sentencing. She gave Bail a written statement, but didn’t want Roberts to see her
again, Ada County Deputy Prosecutor Jean Fisher said. Fisher also told Bail the woman was not happy with prosecutors or how the case
was being resolved. She “is not satisfied her ordeal has been justly determined,” Fisher said. The felony conviction for aggravated assault
means Roberts will not have to register as a sex offender.
Idaho Business Review: States immune from lawsuits over sick time, says U.S.
Supreme Court by Sylvia Hsieh Mar. 22
A state employee who was denied leave for his own sickness cannot sue the state for violating the Family and Medical Leave Act, the
Supreme Court has ruled in a 5-4 decision. States are immune under the Eleventh Amendment from suits under the self-care provision of
FMLA, a plurality of the Court said. The plaintiff, David Coleman, worked for the Maryland Court of Appeals. When he requested sick
leave, he was fired. He sued the state for violating FMLA. A federal court found that the state had sovereign immunity and dismissed his
suit. The 4th Circuit affirmed, citing similar decisions from the 5th, 6th, 7th and 10th Circuits. The Supreme Court took the case and heard
oral arguments in January. In its ruling, four members of the Court said that unlike the family-care provisions that aimed to address
gender discrimination because family care responsibilities traditionally fell on women, the self-care provision protects men and women
equally and therefore did not trigger the constitutional violation needed to abrogate sovereign immunity. “There is nothing in particular
about self-care leave, as opposed to leave for any personal reason that connects it to gender discrimination. … An explicit purpose of the
Congress in adopting the FMLA was to improve workplace conditions for women. But states may not be subject to suits for damages
based on violations of a comprehensive statute unless Congress has identified a specific pattern of constitutional violations by state
employers,” wrote Justice Anthony M. Kennedy. Justice Antonin Scalia concurred in the judgment, but would have based it on an analysis
of whether the conduct itself violated the Fourteenth Amendment, to which failure to grant sick leave “does not come close.” Four justices
dissented, saying that the self-care provision is a “key part” of FMLA’s purpose of reducing sex-based inequalities in leave programs.
U.S. Supreme Court. Coleman v. Court of Appeals of Maryland, No. 10-1016. March 20, 2012. Lawyers Weekly USA No. 993-3650.
Idaho killer Lacey Sivak faces new death penalty hearing Patrick Orr Mar 23
Another execution this year? When the state of Idaho executed double murderer Paul Ezra Rhoades last November, he was only the
second inmate from death row to be put to death over the past three decades — and the only one to be executed against his will since
1957. Keith Wells, a convicted murderer, waived his appeals and was executed in 1994. Rhoades was executed in November after
exhausting all his legal options. Fourteen prisoners remain on death row. Idaho Department of Correction Director Brent Reinke told the
Legislature this winter that “it’s entirely possible” another execution could happen before July 1, according to the Idaho Falls Post
Register. What officials can’t say is which inmate it would be. Five inmates have been on death row since the 1980s — Gene Stuart
(1982), Thomas Creech (1983), Richard Leavitt (1985), Gerald Pizzuto Jr. (1986) and David Card (1989). All five have some sort of
appeal pending in federal courts. Leavitt’s case seems to be the farthest along: His appeal is now in front of the U.S. Supreme Court.
LaMont Anderson, a senior deputy with the Idaho attorney general’s office who is the lead counsel on death penalty cases, said “it’s
impossible to tell” because any judicial ruling on those cases can radically change the time line. Recently, the 9th Circuit Court of Appeals
ruled that new evidence found in Pizzuto’s case isn’t enough to give him another chance at overturning his murder conviction for beating
58-year-old Berta Herndon and her adult nephew Delbert Dean Herndon to death in 1986. Anderson pointed out it took the 9th Circuit
Court of Appeals about a year to issue that decision. That would seemingly move that case forward, but attorneys for Pizzuto are still
appealing his conviction in U.S. District Court on a different appeal. They say Pizzuto’s conviction and sentence should be dismissed
because his low IQ disqualifies him from the death penalty. Ada County prosecutors will once again ask a jury to sentence Lacey Sivak to
death for the 1981 murder of Dixie Wilson. “Our analysis is it was justice then, and it is justice now,” Ada County Prosecutor Greg Bower
said. “We couldn’t let the passage of time prevent that.” A resentencing hearing — which in this case is more like a trial — is scheduled to
begin Feb. 4 in front of 4th District Judge Ronald Wilper. The trial is expected to last at least a month because prosecutors need to recreate a 30-year-old crime for a 2013 jury. The guilt of Sivak, who spent more time on Idaho’s death row than anyone else, is not in
question. What the Ada County jury will decide is whether the murder was heinous enough to warrant putting him to death. Bower, who
was the chief criminal deputy for Ada County during the original Sivak trial, said his staff can provide all the evidence necessary to
convince a jury Sivak should be executed. The 9th Circuit Court of Appeals determined last fall that Sivak’s conviction for first-degree
murder was appropriate. But the judges said the outcome of his 1981 sentencing hearing might have been different if Ada County
prosecutors hadn’t knowingly presented testimony from: - One inmate who had perjured himself about why he was testifying; he lied
about not having expectations of receiving preferential treatment from the state. - Another inmate who admitted that he was a habitual liar.
Sivak’s former attorney, Bruce Livingston, told The Associated Press last fall the false testimony was at the heart of the case. “The court
ruling underscores how unreliable prison snitches can be,” he said. “What’s particularly troubling — outrageous — in this case is that
prosecutors knew the inmate was lying and hid the truth as they sought an execution of Mr. Sivak.” The inmate who perjured himself said
he lied about not having expectations of preferential treatment from the state in return for his testimony. But former Ada County
Prosecutor Jim Harris, who handled Sivak’s murder trial, told the AP, “To the best of my knowledge — and it’s been 30 years — my office
did not assist any of the witnesses with regard to pending charges until after their testimony had been preserved, on the record.” Ada
County prosecutors filed a notice to seek another death penalty against Sivak late last month. To impose the death penalty, a jury must
unanimously find that aggravating factors — such as whether Sivak showed an utter disregard for human life, has a propensity to commit
murder and continues to be a threat to society — outweigh the mitigating factors offered by the defense. Mitigation is not as strictly
defined. Defense attorneys can offer evidence about anything they say may have contributed to what happened. Commonly used
mitigating factors include mental health issues or a history of childhood trauma, including mental, physical and sexual abuse. At Sivak’s
original sentencing hearing, his mother and sister testified that Sivak’s alcoholic father beat him often as a child. His mother testified he
was a hyperactive child, and a medical expert testified about the link between attention deficit hyperactivity disorder and criminal behavior.
Sivak, now 52, is represented in the resentencing by Rob Chastain and Deb Krystal of Boise, who both have considerable experience
handling murder cases as court-appointed attorneys. The trial will be an expense for Ada County — in addition to re-creating such an old
case, jurors in the monthlong hearing will need to be sequestered — but Bower said it was the right thing to do. A cost estimate was not
available. Juries, not judges, have the responsibility to make death-penalty judgments under a nine-year-old Idaho law. So far that’s
happened only in Ada County, where juries have called for the execution of three killers — Erick Hall, Azad Abdullah and Darrell Payne —
since 2003. Sivak’s victim, Dixie Wilson, 30, was shot at least five times in the head and face and stabbed about 20 times in the head,
neck and shoulder at the Baird Gas station in Garden City, where she worked. The mother of three also was sexually molested. Sivak’s
co-defendant, Randall Bainbridge, is serving a life sentence for Wilson’s killing. Sivak has filed dozens of appeals and petitions. He was
briefly scheduled to die by firing squad on Jan. 31, 1984, but the Idaho Supreme Court granted a stay.