IOWA CHAMPION

The Postville debacle

I've postponed posting about the Postville raid until I had some more time to assess the situation. 

For those of you outside Iowa, the Feds (I.C.E.) swooped in at the Agriprocessors plant in Postville, Iowa on Monday for the largest single site immigration raid in the nation's history.  The plant there is the largest Kosher meat processing plant in the world, so the story is chock full of world records.  I say we have the detainees make the largest kosher taco in the world...someone call Guinness!

The topic of illegal immigration is one that I am not about to tackle in any substance on this blog.  To me, the run of the mill illegal immigration case has little to do with criminal defense. I also don't consider myself any kind of immigration lawyer.  If someone came to me with an immigration case, I'd refer them out to someone else. What I know about immigration law is confined to being able to advise my criminal clients with what will happen to their immigration status as a result of a conviction. 

It appears most of the 400 people detained will be deported after expedited immigration hearings.  There will be a couple of dozen that are chosen for criminal prosecution, probably the ones that I.C.E. can verify have illegally re-entered after a previous deportation, or any cases of aggravated identity theft. The people that will probably suffer the biggest prosecutorial hammer in this whole mess are the managers and union leaders at the Agriprocessors plant.    They will be accused of harboring illegal immigrants, conspiracy of one kind or another, and other types of document fraud.  There are also reports that the immigrants were being paid under the federal minimum wage, so there will probably be some hay made of that.

All in all this is more of a political issue than a criminal defense issue. I am not envious of the attorneys in the Northern District of Iowa that will have to wade through the mess of the deportation hearings over the next several weeks.  There will be long hours and not a lot of fanfare, but they are doing a truly admirable job under the circumstances.  I can also say I'm glad to see the progress the Feds have made in dealing with these situations in the most humane way possible under the circumstances.  The last raid in Marshalltown temporarily orphaned some children when their parents were both snatched up and deported.  Some of those detained in Postville were released for "humanitarian" reasons pending their formal hearings. Whether you believe that "there are no illegal human beings" or you are Congressman Steve King, the children shouldn't have to suffer for their parents mistakes.

Iowa Supreme Court reverses sex offender's release from prison

In an opinion issued Friday, the Iowa Supreme Court reversed an Iowa District Court judge's decision that had released him from prison.  The opinion significantly strengthens the Iowa law that allows the State to keep defendant's in prison indefinitely by designating them "Sexually Violent Predators".

The State of Iowa had filed a petition to designate Bryan Pierce a "Sexually Violent Predator" (SVP) in an attempt to keep him in prison past the expiration of his criminal sentence. In a trial in Warren County, a District Court Judge had determined that Pierce should be released because the State was not able to put any current temporal connection to his likelihood to re-offend; the State only proved that Pierce was a high risk to re-offend at some future point (from 6 to 15 years after release).

The State appealed the decision. The Iowa Supreme Court ruled: (1) THAT THE STATE CAN APPEAL ADVERSE DECISIONS ON S.V.P. CASES; (2) THERE DOES NOT HAVE TO BE ANY SPECIFIC TIME PERIOD FOR A DEFENDANT TO RE-OFFEND. Both findings add to the power of the State to hold sex offenders in "treatment facilities" (read: PRISON) indefinitely.

The ruling that the State can appeal is perhaps the more significant part of this opinion even though it dealt with purely procedural issues.  The Court found that the language of Iowa Code § 229A.7(5) permits the State to appeal adverse S.V.P. decisions even though the statute does not expressly give them that power.  The Court justified the decision through the language of Iowa Rule of Appellate Procedure 6.1, which permits appeals of final judgments. The Court felt the language of the procedural rules trumped the fact that the statute was not specific on the State's appeal rights.

The Court then went on to the merits of the appeal and also found in favor of the State of Iowa.  The Court felt the trial judge erred when he interpreted the third element that the State was required to prove to hold the defendant in custody. The trial judge found that the language that the defendant suffered a "mental abnormality makes him more likely than not to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility" had to be shown at the time of the trial.  The judge ruled that while there may a risk in the future, the risk at the time of the commitment hearing was not such that Pierce should be held. The State had presented evidence that there was a high risk for Pierce to re-offend, but their expert could only say that it was at some future time, probably within 6 to 15 years. 

The Iowa Supreme Court concluded that the statute only "requires the State to establish the respondent is presently suffering from a mental abnormality that makes him more likely than not to engage in sexually predatory acts in the future" and that there is "no burden to prove that alleged sexual predators are expected to re-offend within a specific time period".  The fact that the defendant was currently not a risk to commit a new offense made no difference.  If he was a more likely than not to re-offend at some point in the future, he had to be held in custody as a sexually violent predator.

The decision will force trial courts to determine "lifetime risk" of each particular defendant. It ignores scenarios where sex offender treatment that has been successful in treating the defendant to the point where he is currently little or no risk.

Massive nationwide murder conspiracy or young drunk and stupid?

I am a skeptic.  I hate emails from friends, co-workers, and family members that tell me I can make money on the latest Microsoft-AOL merger or that I will be burned to death in my sleep by plug-in air fresheners.  The only thing I do with those emails is reply with a link to Snopes.com (one of the greatest gifts of the Internet).  I think those types of stories are so popular because people WANT to believe them.  How great would it be if we actually could make $40,000 just for forwarding some stupid email to all of our friends?

It was with this skeptical eye that I learned the following:

Two retired New York City police detectives have recently gone public with the fact that they have uncovered a secret, nationwide, sophisticated network of killers targeting young, drunk, male college students.

The killers strike after the young men have been out getting hammered at parties or at bars with friends.  In all the cases the young men leave the company of friends at some point to stagger home, but never make it.  They turn up drowned a few days later in local rivers or lakes.  The men are not the victims of misadventure, but rather they are targeted by a group dubbed "The Smiley Faced Killers".  The moniker comes from the fact that smiley faces are graffitied near where the bodies are located.

At first I had trouble understanding how two professional criminal investigators could come to such a conclusion.  Then I remembered how generous Bill Gates is.  You see, the police, victims families, and news organizations all WANT this story to be true.  The police want it to be true because it confirms what they have learned after years of working a job that shows the worst things people do...in short, that there are a lot of fu##ed up people in the world! The victim's families want this to be true because it explains to them the unexplainable:  How could a vibrant, strong, smart young man, suddenly be snuffed out without any warning?  The families don't want this to be in any way the fault of their young son or nephew. If there is a dark force at work, they can turn some of that sadness into anger.  Whatever it takes to make it through the loss I guess.  The media wants it to be true because the headline of "Massive Nationwide Murder Conspiracy" sells more papers than "Young, Drunk, and Stupid". 

Lets look at what we would have to believe if this scenario were in fact true:

(1) There is a group of sophisticated psychopathic killers operating simultaneously in several different States.  (No, I'm not talking about the NBA).

(2) For the last 10 to 12 years they have existed with the sole purpose of murdering college aged men.

(3) They have killed over 40 people in at least six States.

(4) All of the victims were drowned (or at the very least put into the water after being killed with no conspicuous sign of trauma or foul play).

(5) The group is so skilled at their dastardly deeds, that they have left no evidence tying the crimes together except a spray painted smiley face that they use as their "calling card".  In fact, the killers are so sophisticated that they have fooled dozens of police agencies that have investigated these deaths and ruled them accidental or suicide.

Now, lets look at it with a skeptical eye.

(1) According to the CDC, In 2004, males accounted for 78% of fatal unintentional drownings in the United States.

(2) Also per the CDC (and common sense) Alcohol influences balance, coordination, and judgment and increases the risk for death by accidental drowning.

(3) These types of deaths are sadly commonplace.  You can find dozens of stories (some of which have been "identified" as victims of the serial killer) at Footprints at the Rivers Edge, an informational blog on this issue. One of the stories at the site is about Iowa State University student Abel Bolanos.

(4) It appears that in most of the deaths, the body of water was on the route home, or wherever the victim was headed when they went missing.

(5) According to the detectives, the smiley faces they find are different shapes and colors. Not a very good way to announce your work, if that is what was intended.

(6) The bodies are usually found in urban areas where graffiti is common.  A smiley face is a common graffiti symbol because of the ease with which it is made (look at the graffiti on a freight train the next time it goes by).

People naturally want to search for answers when a young person meets an untimely end. It bothers me that some people find their answers in bogeymen and legends. I know it possible that in a small number of those cases the person may have met his end at the hands of the wicked.  One or more of them may have been robbed, thrill-killed, or the victim of some evil intent.  But, the more likely explanation is simple misadventure (See the recent FBI PRESS RELEASE).  Alcohol distorts our thinking and lowers our inhibition; ever hear of beer goggles?...beer muscles?   

What really troubles me as a criminal defense attorney is the mindset of the police officers that created this theory.  How many real murders have been "solved" with a weak or outlandish theory that was concocted by a police officer with too much time on his hands and too vivid an imagination. How many people have been put to death or sent to prison for life because some cop labeled them a killer?  Ask Rubin Carter, or read The Innocent Man, by John Grisham.

Excellent Iowa Supreme Court opinion suppressing marijuana search warrant

The Iowa Supreme Court issued an opinion Friday that suppressed marijuana obtained through a search warrant because the issuing magistrate was not "neutral and detached".  The analysis was done under both the Iowa Constitution and the Constitution of the United States.  The results under both was the same, reversal of the lower court.

The case originated out of Worth county in North Central Iowa.  The defendant (and the defendant in the companion case also decided Friday) was the target of an investigation into marijuana usage. Several complaints to police were made by the Grandparents of the defendant's child, implicating marijuana usage.  The complaints prompted a "trash-rip" where the police took the defendant's garbage, locating marijuana seeds, stems, and rolling papers.  There was also marijuana turned over to the police that the grandparents found in a baby blanket.  All in all, the evidence supporting the warrant was overwhelming, much more than the probable cause needed.  When the police presented the warrant to the part-time magistrate, he recognized the name of one of the targets as an opposing party in a paternity action he was handling.  Despite that, the magistrate reasoned it was proper for him to sign the search warrant because it was based on such solid evidence. When the warrant was issued, substantial evidence was recovered, including marijuana, methamphetamine, and paraphernalia. The criminal defense attorney filed a motion to suppress, which was denied.

The Supreme Court disagreed with the lower court's decision to allow the drugs into evidence in the trial.  Citing a very similar case from Georgia and analyzing the Code of Judicial Ethical, the justices concluded that it was a violation of the defendant's Fourth Amendment rights for this magistrate to determine probable case.  His client's cause would be advanced by a successful search warrant so there was a clear connection between his role as a private attorney in an ongoing matter and his role as a magistrate. The connection to the civil case objectively cast doubt on his ability to perform his function in a neutral and detached manner.

The State of Iowa tried desperately to salvage this warrant arguing harmless error.  Thankfully the Iowa Supreme Court realized that violations of constitutional protections as long standing and important as the ones raised here are never harmless error. Knowing that some people will be put off by the eventual dismissal of the underlying criminal case on such a seemingly "minor" violation, the Court cited Boyd v. United States from 1886:

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure...It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

This goes down as one of those victories whose significance will not be appreciated as much as it deserves (other than by criminal defense attorneys).  Our constitutional protections are always significant. They are protected by criminal defense attorneys fighting back against the intrusion of the government and by our appellate courts recognizing the need for strict enforcement. For all you "liberal judge" haters, I would remind you that if we tolerate subtle reductions of our rights, we risk waking up one day without them. Patriot Act anyone?

Harold and Kumar get busted for OWI

A couple of weeks ago the Clive City Council approved a liquor license for a mom-and-pop fast food restaurant called "Iowa Castle". The license would allow the store to sell beer to its patrons in the lobby as well as unopened bottles of beer out the drive-through window. And thus, a firestorm was born. 

The Clivearians Clivers Clivetonians  The people who live in Clive thought this was the first step down the road to oblivion. Never mind the dozen bars within four blocks of the restaurant, or the weekly "Clive After 5" bash where a couple of thousand Cliveareans people who live in Clive gather on summer Fridays to get soused in the park and then drive to the various bars in the area to get even drunker.  The Iowa Castle situation was a WAAAAYYYY more serious threat to public safety.

I heard the owner of the program on the radio today talking about what his requirements were for the drive-through beer sales: 

(1) It had to be with a food order 

(2) ID's for everyone in the car were checked and the magnetic strip scanned

(3) Only unopened bottles of beer were to be sold

(4) Only one beer per person per order

My first thought was: What's the point...who would order just one bottle of beer with a value meal?

My second thought was: How can people seriously think that this is going to increase the number of people driving drunk or getting arrested for OWI?

The biggest complaint from Cliveites people who live in Clive was that it would encourage drunks to drive all the way to Clive so they could buy alcohol from the drive-through. Because drunks wouldn't have to walk in and talk to a clerk face to face, they would be able to surreptitiously obtain more alcohol to fuel their Mad-Maxian terrorization of the otherwise tranquil streets of Clive.The logic misses on several levels. 

First, if people are already driving drunk to get the beer, how has the restaurant done anything to make the situation worse?  If anything the store is helping because it cuts down on the enhanced "empty stomach buzz" that happens when you drink without eating. 

Second, If they are not drunk, one beer will not make them drunk, unless they are a total lightweight. 

Third, if a cop sees you drinking the one beer you got from Iowa Castle while are driving, you are busted. Again, they are helping stop the worst offenders: those brazen enough to drink WHILE driving.

Fourth, since you have to buy food with the beer, it would probably cost like $10.00 for one beer. Even if you are drunk you know that is way too much to pay for one beer. As a result, you'd go down the street to the Git-N-Go, thus alerting the clerk to your drunk driving and causing you to be arrested for OWI. Again, they have taken drunk drivers off the street with their store policy.

And lastly, given that Iowa is 88% Caucasian, why hasn't White Castle sued the pants off this guy for copyright infringement?

Unfortunately, the controversy will not see another day. During the radio interview, the owner said he was pulling the drive-through sales because of the controversy.  He did however announce a hilarious (and totally original) movie idea he had: Harold and Kumar go to Iowa Castle. It's about two college kids who get stoned and drive around Des Moines looking for a fast food chain knock-off that sells beer through their drive-through. After they each finally get one beer they die in a fiery head on collision.  OK, maybe hilarious isn't the right word.

Narc temper tantrums

It upsets me when people in this business can't act like professionals.  There are a lot of different jobs in the criminal justice system:  Police Officer, Sheriff's Deputy/Jailer, Judge, Attorney, Probation Officer, Substance Abuse Counselor, Mental Health Staff, Juvenile Court Officer, Criminalist, Prison Counselor, Court Reporter, Evidence Technician, and Court Clerk to name just a few.

So why, of all of those people, is it usually a cop that will go "cowboy" on you and think they don't have to act with professional courtesy? 

I don't want to lump all police together on this. I work a lot of drug cases and most of the officers and agents I meet are completely professional.  They are well trained, know how to do their job, and do it very well most of the time.  They also don't try to do my job. They understand my role in this process and they respect it, even when they don't like it.  But, if you are going to run into someone who doesn't play well with others, it won't be an attorney, or even a judge.  It'll be a cop.

Some time ago, I dealt with an unnamed narcotics officer from a smaller jurisdiction.  One of the suspects they arrested had hired me instead of "cooperating" with them.  Now, when I called to speak to the officer and explain that all things considered, we were declining their offer, I got hung up on.  "That's all I need to know!" CLICK........  Um, Hello......

Now, there will come a time that someone I represent will have something of value to the authorities.  I will be approached by this officer or one of his colleagues, and they will seek our help, a little quid pro quo.  What will my response be?  Will I hang up?  Will I tell them to go pound sand because he acted like a baby several months ago?  No, I will just do my job.  I will not act like a child because I am not a child. I am a professional.  I know that if you throw a tantrum every time you don't get your way, nobody will want to play with you anymore.

I don't care if you're a cop, lawyer, judge, or clerk; if you are going to last for any significant time in this system, you can't take it personal every time someone does something you don't like.  It's the nature of the game.

Polk County Courthouse measure fails

As everyone around central Iowa has already seen, the Polk County Courthouse referendum failed by a solid margin in yesterday's vote.

The Register article quoted a woman who said that:

I just feel like — being a young, struggling person as it is — I don't need any more taxes. I think there are better things the money could go toward. Stuff like this really affects you

Really affects you?  The cost per $100,000 of home value was $23.00...PER YEAR.  That really affects you?  What else could that money go to that is more important to the community?  A courthouse is probably THE MOST USED public buildings a community has.  It reflects how our citizens view their government and their justice system.  I am guessing you've never been called in for jury service. If you have you ought to be ashamed of voting against this.

As a criminal defense attorney I go to the Polk County Courthouse a dozen times a week.  The problems were well publicized: There are virtually no areas for attorneys to meet with clients in private.  There are serious security issues with inmates being paraded around the halls for court appearances, and no security cameras in any courtrooms.  The high volume criminal courts: traffic tickets, OWI, domestic assault, possession, theft etc. are crammed on most days.  The jury room is too small and jurors are routinely wandering around the third floor...with the attorneys and their clients.  Some judges have an office, but no assigned courtroom. The clerk's are packed in like sardines. There are mold problems and there are rats in the basement and law library (no attorney jokes please).

Now, as the issue is pushed off for another time, construction costs will rise.  $500,000 per month is the estimate.  Way to go, tax "advocates"....penny-wise but pound foolish.

I don't want to understand the emotions of a lying liar that lies

Mark Bennett is posting about the "empathetic lawyer" again.

"an empathetic lawyer has empathy for everyone. A compassionate lawyer has compassion for all"

What I want to know is this: How do you have compassion for an accuser who lies about your client sexually assaulting them? How do you empathize with the cop that invents the probable cause for his traffic stop out of thin air? The answer is…YOU DON’T!! The only thing you should feel for that person is contempt for trying to pervert justice.

Mark goes on to talk about who he would want to represent him if he were ever charged in a case he posits:

"I suspect that if I were accused of a crime I would (all else being equal) not want a lawyer who was defending people to turn a buck...I would want the lawyer who could best discover and tell the story that would clear my name, and I would want her to be relentless in the pursuit of my freedom. I suspect that this would be a lawyer who cared about me. "

That is fine for Mark, but what do you mean by "all else being equal"? I don't want all else to be equal. I want to know, first and foremost, who is most capable and skilled attorney to defend me in my unique situation. If there is a need to challenge a search warrant, I would want the attorney to have an encyclopedic grasp of the law.  If there was a liar making an accusation against me, I don't want someone who is going to identify with them, I want someone who is going to eviscerate their story. If the case against me is impervious to attack, I want the attorney that has credibility with judge when it comes time for sentencing. A good defense attorney has the versatility to wear all those hats.

That is what I was trying to convey when I talked about practicing with integrity instead of empathy. If you do everything with consistent personal standards, you will serve your client best. Judges will trust you. Juries will see you as an honest advocate for your client. You don't have to beat people up on the witness stand unless they deserve it...and sometimes they deserve it.

When I hear Mark talk about this I can't help but get a one-dimensional view of how the "empathetic lawyer" practices. The first and foremost concern seems to be identifying with emotional motivation of the opposition. The truth is, emotions HAVE to be controlled in criminal defense cases. They can't always be on the forefront of your approach to a case. A defense attorney needs to be able to adapt and be versatile. If your first concern is always an empathetic inventory, you are not being flexible and your client will suffer.

There is a time and a place for emotion, but there are also times when you turn your plowshares into swords; there are cases where you HAVE TO go to war.  When you do, do want an "empathetic" champion, or a "ruthless" one?

After making my first draft of this post I read Scott Greenfield's take at Simple Justice. I think he hits the nail squarely in the head when he says:

But why must clients settle for the one dimensional lawyer?  Why can't the lawyer be empathetic toward his clients, yet aggressive in his representation?  Why can't the lawyer have a bullet in each chamber of his six-shooter to cover the full panoply of situations, ready to be cooperative when appropriate, ruthless when necessary and everything in between in response to the needs of the case and situation?

Truer words were never spoken.

Those pesky "admissions" to police

I was reading through a police report in a drug case yesterday when I came across the line: "[The defendant] admitted he was manufacturing marijuana".  Did he officer? Perhaps you could tell us what he said when he "admitted he was manufacturing marijuana". After all you are testifying to an unequivocal admission by the defendant that will almost certainly be the biggest part of the prosecutor's closing argument...HE ADMITTED IT!!!!  For me, this is another example of why we should be pushing for a law in Iowa that interrogations be recorded. Gideon has recently posted on the increasing trend of either voluntary or required recording of interrogations over at his blog.

The interrogation/admission that I spoke of occurred at the execution of a search warrant and there was no recording of the defendant "admitting he was manufacturing marijuana" (not that there would have been a recording if they had done it at the station). The conversation could very well been something along the lines of this:

Cop: "Listen, buddy, we know you what you're doing here, we've been watching the place, all the bills are in your name."

Defendant: "Sir, I own the place, but my nephew lives here. I come to check in on him; he's my sister's kid and I want to make sure he's doing OK. I don't know anything about what's going on here."

Cop: "Bullshit! We see you here every other day, there is no way you weren't a part of this."

Defendant: "Whatever you say..."

When it goes down in the case report, it will end up as being "The defendant admitted to manufacturing marijuana". I'm not saying that narcotics officers are always lying in their reports, although they sometimes do.  There can be differences of perception of what was said, and sometimes memory falters.  I have seen incident reports that were written three days after the arrest. If the officer is going totally off memory when he sits down at the keyboard, mistakes WILL happen. 

The problem with those mistakes, is that they end up being used in court, they become evidence in the form of testimony.  The police don't make reports for posterity sake. They are not interested in preserving the historical aspects of early 21st century American drug users. The main reason the reports exist is to remind them of what happened when they get called into court on a motion to suppress, depositions, or trial.  By the time they testify in your case, they have probably arrested another fifty defendants.  They all start to blend together, details get fuzzy.  They read their report before trial and see "the defendant admitted to manufacturing marijuana", and low and behold it all comes back to them.

There are various jurisdictions that are passing laws or enacting voluntary policies that require police interrogations to be recorded.  According to the Innocence Project, Illinois has a law that requires all HOMICIDE investigations to taped, and Alaska and Minnesota both have had Supreme Court decisions come down requiring recording of confessions.  A look at the laws and policies shows that the language can range from ALL interrogations, to just those at the police station, to just those where "feasible". The exceptions leave it open to abuse and excuses from the cops as to why it wasn't done at the station or why it wasn't "feasible". This really doesn't accomplish anything.  The Illinois law is interesting to me, because it is says two things: 1) False confessions, unintentional misrepresentation, and police misconduct can all lead to wrongful convictions and unjust imprisonment or execution. 2) Unless you are charged with murder, it is totally acceptable that you are wrongfully convicted and imprisoned. 

We live in the digital age of I-phones, I-pods, and in-car Blu-ray recorders; is it really to much to expect that the cops have a hand-held recorder with them when talking to suspects? There's probably room in the raid van, over there by the battering ram. The bigger point is that the recording of interrogations takes away the guess work of what the defendant said and it gives the jury a clear view of what happened during the interview.

Spending bill passes with funding for new Fort Madison prison

The Iowa Senate approved funding for a new prison in Fort Madison today.

Some lawmakers were advocating the prison be built in a more central location.  Apparently, no other site was considered.  The new structure will be built about a half mile from the existing prison.  The story doesn't say whether the existing prison would remain open, but I can't imagine them closing it completely.

If you have never seen the prison in Fort Madison, it is a sight to behold.  It is an old structure with imposing stone walls.  It reminds me of Shawshank Redemption.  When I've visited there it gives me an almost crushing sense of confinement.  I'm always eager to see the light of day again when I'm finished with my business. I cannot imagine what it would do to a person's mind to have to serve a life sentence there.  Anyone that is pro-death penalty should take a tour; I think their position would change.

Where's my deal?

I've found that in the practical blogosphere, story ideas tend to get bounced around from one attorney to the next.  I think it's partly because we all have clients, families, and personal matters to attend to, leaving little time to think up original topics.  The other is that criminal defense lawyers, whether in New York, Texas, California, or Iowa, all share largely similar experiences. A topic started by Norm Pattis, and picked up by New York Criminal Defense Attorney Scott Greenfield struck a chord with me.  It has to do with plea bargaining in criminal cases and the lack of understanding that the general public has about the process.

As Scott pointed out, if you haven't heard a defendant or someone from their family complain about a plea offer in one of your cases, you can count the days you've practiced law on your fingers.  As a criminal defense attorney, you have to expect that you will bear the brunt of the frustration in that situation.  I had a federal child porn case with an atrocious offer on the table.  The choice was for the defendant to agree to approximately 30 YEARS, or go to trial. The family was incensed, the defendant was distraught, and I was the person that got to hear it. 

Part of the reason they were so upset was their nephew was run over and the guy that did it got a ten year prison sentence.  I felt bad for them, and believe me, I tried to make the offer change. It just wasn't going to happen.  The case was too strong, and the defendant was too "experienced".

He ultimately took the deal, but until the day he was sentenced, I was the person that couldn't get him a better offer. As I said before, I accept I'm going to be the lightning-rod in that situation.  The prosecutor is making an offer that is worse than someone got for killing a child.  I totally get that.  But it doesn't change the fact that the defendant was charged with his own serious crime. They don't want to hear about the completely voluntary confession, about the mountain of evidence, or about the multiple prior felony convictions that trigger harsh mandatory sentences.  Yes, he got a sentence worse than a man who took someones life...but there are reasons it happened that way, other than who the attorney was on each case.

There are certain things about plea bargaining that everyone charged with a crime (or their family) should know:

1) There is no constitutional right to a plea offer

The government is not required to offer you a plea bargain.  The state does it to try to reduce the amount of cases that go to trial or because they perceive a weakness in their case, or because it is the right thing to do...you know, justice.  If the case is serious enough, and strong enough, no plea offer will be made.

2) Each person's situation is unique...The State is not required to offer people charged with the same crime the same or similar deals

Prosecutors base their offers on the individual facts of each case and each defendant.  Defendants are rarely completely identical.  While individual prosecutors generally try to apply their sense of "justice" evenly, they are human and sometimes differences arise. If you see differences between your case and what someone else got, get over it.  Do not judge how "good" your offer is on anything other than your unique situation.

3) In general, plea agreements are only between the defendant, their attorney, and the prosecutor; judges are usually not bound to a particular outcome.

There are only a few circumstances when a judge will agree to be bound to a particular outcome in a case.  In federal court, the judge does have to approve plea agreements, but this is usually not a commitment to a particular sentence, it is an approval of what charges are being plead to, the potential range of sentences, and the facts supporting them.  In Iowa courts, the judges focus more on "accepting a guilty plea" and leave the particulars of the plea offer to the prosecutors discretion.  If the plea offer "offends" the judge he will usually emphasize that he is not bound to a particular sentence, a signal that there may be problems. Judges are very reluctant to bind themselves to a particular sentence without having time to review all the facts of a particular case and defendant.  This information is usually gathered by the probation office between plea and sentencing and put into a "pre-sentence report" that gives the judge a more complete picture of the defendant's unique circumstances in life.  The pre-sentence report can sometimes influence a judge to impose a sentence other than what the parties have agreed on.

4) If you don't like the plea offer, you can go to trial

Although I talk about defendants being "forced" into plea agreements sometimes on this blog, the reality is that nobody HAS to plead guilty.  If you don't think the offer is fair, take the case to trial.  If you feel like your attorney is making you take a plea, let someone (like the judge) know.

Unfair thresholds in Iowa's drug laws

Reader John Neff (who I should point out is the first confirmed person other than a friend, relative or lawyer that reads my Blog) got me thinking about the drug thresholds that apply to class B felony drug charges in Iowa. John's comments came after my post about the new Minority Impact law that requires lawmakers to consider the impact any proposed criminal justice statute would have on minority populations in the state. His thoughts on the extremely low threshold amounts tied to mandatory minimum sentences are right on point. They are probably the biggest factor in prison overcrowding in Iowa. 

Because the threshold level for a mandatory 25 year prison sentence on methamphetamine charges is so low (five grams), prosecutors have unconscionable power over a defendant's fate during plea bargaining. When you add in the fact that a guilty plea is tied to an earlier parole, prosecutors have everything they need to MAKE defendants plead guilty and agree to a prison sentence.

The injustice with the low threshold is that the person trafficking TEN POUNDS of methamphetamine doesn't see any more prison time than the low level user/dealer he has as a customer.  The B felony applies to weights between 5 grams and 5 kilograms (about 11 pounds).  How does that structure make any sense?  When a person buys seven grams and turns around to sell a gram or two to support his own habit, he puts himself in the same boat as the ten pound dealer.  Try telling the prosecutor that only three of the seven grams you possessed were actually going to be delivered so it should be a C felony and not a B.  They won't bite.

Plea bargains in B "crack" and other "hard drug" cases (cocaine, heroine, PCP, and some prescription drugs) tend to include more agreements based on sentencing recommendations by the prosecutor. Because they lack the hammer of a mandatory prison sentence, the prosecutor agrees to recommend probation if a plea is entered to the highest offense.

The problem is that "crack" still has an unfair threshold to get from a B to a C felony. Does it make any sense that a person could deliver 99 grams of powder cocaine or heroin and only get a C felony charge when a "crack" defendant with 11 grams gets a B felony?  No way.

The class B felony thresholds need to be more uniform, and more importantly, higher for "crack" and meth.  Whether your policy is one of interdiction and prosecution, or education and treatment, you need to sort out the true drug traffickers from the low level user/dealers. The only way to do that is to have higher, realistic thresholds for increased penalties. Put them all up to 100 grams (about 1/4 pound), like it is currently for heroin and powder cocaine. That would keep more drug trafficking offenses as class C felonies, and reduce the number of long prison terms for low level user/dealers that are selling a couple grams a week to their friends in order support their own habit.