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2010 July Newsletter

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2010 July Newsletter Newsletter of the Utah Prosecution Council The PROSECUTOR Statewide Association of Prosecutors organization whose primary mission was (SWAP) had been sponsoring annual the establishment of a comprehensive Spring and Fall Conferences. SWAP also prosecutor training program. Paul did held the first Basic Prosecutor Courses in some surgery on the 1989 bill then sought Director’s Utah. With its primary responsibility and obtained the support of Salt Lake being the prosecutorial legislative effort, County Attorney David Yocom and the rest and there being only one SWAP of the SWAP Board. Law staff person and limited enforcement also got behind Thoughts financial resources, the SWAP the bill. Then Public Safety training effort was necessarily Commissioner Doug Bodrero Utah Prosecution Council at 20 restricted. Beginning in July of deserves special mention and 1990, UPC assumed appreciation for helping responsibility for the statewide convince the legislature to On July 1, 2010, Utah Prosecution prosecution training effort. increase the Public Safety Council (UPC) celebrated its 20th birthday. As has been the case Surcharge Fund so as to Not long when compared to prosecution with so many significant pieces provide about $250,000 for associations in other states, or even to of criminal justice related Utah Prosecution Council. SWAP, but not insignificant, either. legislation for the past 25 years, Thanks to the hard work by The primary mission for UPC, as give or take, Paul Boyden can Paul, the bill passed. stated by the legislature in 1990, has not be said to have been the god For those of you changed since 1990. 67-5a-1(2) UCA father of UPC, with support, of course, interested in a trip down memory lane, the provides that “The Council shall provide from many others. As it has been told to original members of the Council were training and continuing legal education for me, Jim Housley, who served as Executive Attorney General Paul Van Dam, state and local prosecutors” and “provide Director of SWAP while Paul sat on the Commissioner of Public Safety Doug assistance to local prosecutors.” Some of Board of Pardons, with mandatory CLE on Bodrero, SWAP Chair and Salt Lake you graybeards will recall that organized the way, drafted a bill in 1989 relating to a County Attorney David Yocom, Emery prosecutor training in Utah did not prosecutor training organization. By the County Attorney Scott Johansen, Cache originate with UPC. Beginning shortly fall of 1990, Paul had returned to SWAP. County Attorney Gary McKean, Weber after its inception in the 1970s, the He recognized the need for an County Attorney Reed Richards, Continued on page 2 In This Issue: Awards: Troy Rawlings 7,9 Ken Wallentine 1 Director’s Thoughts 15-16 Article: Protecting Your Plea Deals Post Prosecutor Profile: Padilla v. Kentucky, by Laura B. Dupaix 4 Christine Petersen, Pleasant Grove City Attorney 17 On the Lighter Side 6 Case Summaries 18-19 Training Calendar Vol. 20 Issue 7 July 2010 Director’s Thoughts, ...cont. Continued from page 1 Washington County Attorney Paul Graf, and a sandwich or one of The Judge’s fine Murray City Prosecutor Randy Hart and Assistance From Lots of People Ranchero salads. Salt Lake City Prosecutor Cheryl Luke. Let’s not forget the many committees Deputy Salt Lake County Attorney Jim In looking back at the history of where folks have given time and contributed Housley was named as the first Director of UPC, I would be entirely remiss if I failed to so willingly. The UPC Training Committee the Council, with the understanding that he give first priority to the tremendous number of reviews the UPC training effort and plans would serve until a permanent director people, mostly prosecutors, who have upcoming training schedules. The UPC could be selected. Jim did not desire to volunteered of their time, talents and Technology Committee and the PIMS Users leave his employment with Salt Lake professional know how to help make assure Committee who without their hard work and County, especially since it would have the success of various UPC efforts. My first expert input, the PIMS project would have involved a salary reduction. week on the job I started calling prosecutors, long ago experienced an early demise. When I started work as Director of Utah asking them to make presentations at training big changes are in the office, the User’s Prosecution Council on January 2, 1991. conferences, and those calls continue right Committee, in particular, often meets up to The Attorney General’s Office cleared out a through today. The help is not limited to twice a month for two or three months supply room, fronting on a wide place in a making presentations at conferences. For running. A little known but important hall, and I and Rose Jensen, the first UPC each conference there has to be a conference committee is the Unusual Prosecution secretary, moved into the 11th floor of the planning committee. Hey! I ain’t gonna take Expense and UPC Scholarship Committee Beneficial Life Tower. Rose was a all that responsibility upon myself. For most which undertakes the often troublesome tremendous asset and her ideas and conferences the committee meets twice, in (because there is often not enough money to expertise were invaluable as we “invented” addition to which they make calls to potential go around) responsibility of reviewing UPC over the next couple of years. presenters. All they get for that is our thanks requests from counties for reimbursement of United States Supreme Court (p. 6, 8) United States v. O’Brien - Fact that a firearm was involved in an offense must be proven beyond a reasonable doubt Carr v. United States - SORNA not applicable to preenactment travel Dolan v. United States - A victim’s losses may still be determined and a restitution order entered after 90-day deadline McDonald v. Chicago - Second Amendment right extended to states Utah Supreme Court (p. 8, 10) Anderson v. Bell - An electronic signature sufficiently satisfies the signature requirement State v. Gardner - Execution warrant is not an appealable order State v. Gardner - Injustice warranting the setting aside of rules governing judicial review not found Case Salt Lake Co. v. Holliday Water - Although statutory based claim moot, contractual obligation may still exist Utah Court of Appeals (p. 10-12) Summary Turner v. Lone Peak Public Safety Dist. - Voluntary consumption undermines claim that intoxication rendered threat involuntary Index State v. Walker - Exclusion of expert testimony not prejudicial to outcome of case State v. Holt - 2006 reduction statute is not an ex post facto law K.O. v. State (In re K.O.) -Sua sponte pretrial hearing on reliability not required State v. Lowe - Subjective fear for officer safety not sufficient for objectively reasonable belief of danger 10th Circuit (p. 12-13) Hooks v. Workman - Jury coerced into voting for sentence of death United States v. Smith - Sex offender restricted on contact with children and disabled adults Other Circuits (p. 13-14) United States v. Frazier - Entitlement to purchase firearms not a defense to misstatement on ATF form United States v. Gallaher - Imposition of death penalty not required for first degree murder to be a capital crime United States v. Lall - Police promise to not use statements for prosecution undermined Miranda waiver Other States (p.14) State v. Grenning - Defense has a right to a copy of the hard drive in pornography case O’Connell v. Cowan - Prosecutor’s opinion work product may be discoverable in a civil lawsuit People v. Jacinto - Deportation of sole defense witness not a violation of constitutional rights Continued on page 3 The Prosecutor Page 2 Director’sLEGAL Thoughts, BRIEFS ...cont. Continued from page 2 unusual prosecution expenses. The fortune to work with some extraordinary together the newsletter. They have also Committee also handles the happier task of people over the past 20 years. Without the done a variety of other projects for UPC, reviewing and approving UPC absolutely wonderful work of first Rose mostly thankless and less than exciting. scholarships to help prosecutors make it to Jensen, then Carma Morris and now Yet, without their efforts, UPC would not specialized, out-of-state training. There Marilyn Jasperson, the training effort be what it has become. have also been a number of ad hoc would have been impossible. They are the Last and certainly not least committees over the years, organized to ones who have taken care of the hundreds among those who deserve thanks and help address a one time issue. Often those of details that must be done in order for a credit for any UPC successes are the committee members put in dozens of hours conference to be a success. members of the Prosecution Council. It and get little, if any public recognition. Many years ago, when UPC first has been my privilege and pleasure to While I’m in the thank mode, I decided to get into the case management work for and with them for the past 20 must not forget the Attorney General’s system, I decided we needed to look for years. What a tremendous group of people administrative staff. Over the years the what was then a rarest of all things, a they have been. The Utah prosecutorial people in that division who have worked on lawyer who was also computer literate. I community has benefited enormously for UPC stuff have been not only very was lucky that Mark Burns heard of the job having had them in those positions. professional but have been a delight to and accepted our offer. Mark managed the work with. And, I absolutely must Prosecutor Dialog project, and did lots of Training Program recognize and thank the Attorneys General other important stuff for UPC for a number with whom I have worked, as of years until other As mentioned above, UPC well as their chief deputies and jobs in the AG’s inherited what had been a limited but the division chiefs.
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