IOWA CHAMPION

Maryland murders highlight judicial predicament

The terrible case out of Maryland where Mark Castillo stands accused of murdering his three young children highlights the predicament that judges across this country are placed in on a daily basis. The decision on whether or not to grant a permanent protective order may be the hardest one a judge has to make. They are quite often damned if they do...damned if they don't.

In the Castillo case, the mother of the children had applied for and was granted a temporary order of protection based on an accusation of domestic abuse. After a hearing to decide if a permanent order should be entered, the presiding judge found a lack of "clear or convincing evidence the alleged acts of abuse occurred".  That judge did exactly what he was supposed to do; examine the facts and render an honest judgment. Is there anything more we could ask from him?  For whatever reason, the system failed. It could have been that the mother was not articulate enough to convey the threat. It could have been that the accused had people testify on his behalf that didn't want the truth to come out. Whatever the reason for denying the order, the murders were no more the judge's fault than they were the clerk of court.

I have found in the dozen or so cases where I have defended someone in a civil permanent protective order hearing, that judges are far more likely to side with the accuser in weaker cases.  I have won only one case after a full hearing, and that was where there was a male "victim" and my female client was the accused abuser.  They were both in their 60's and she was physically incapable of doing some of the things she was accused of.  The burden of proof will often get put on the back burner if the case is close, and the tie usually goes to the accuser. Cases like the Castillo case convince many people that issuing a few applications on lies is acceptable. They maintain it is the price we have to pay to stop a tragedy like this from occurring. While a certain number of false accusations will always exist, it goes against any sense of justice to set a system up that encourages them.

The current civil system of protective orders does exactly that, it encourages false accusations, especially where children are involved.  In Iowa, if a judge makes a finding that a person has committed domestic abuse, it can be used against them in a custody battle.  You can imagine what the effect of such a finding would have on the chances the "abuser" will get custody.  By contrast, if the person does not put on a defense and agrees to the entry of the order, no finding of abuse is made.  The natural result is that the accuser can gain a significant upper hand by simply making the accusation of abuse and forcing the other party to consent to the protective order. If a person doesn't consent they face the prospect of having their chances for custody decimated by a finding of abuse. Add in the fact that an accusation of abuse can force the other party out of the house, limit their contact with the children, and cost the other party thousands in extra legal fees and you have a system perfectly suited for lies to win over the truth.

You can bet that judges in Iowa and across the country are paying closer attention to these cases after the right result got splashed on the front page for the wrong reason.

Former and current Iowa judges face legal problems

There are two recent examples of judges battling legal woes making headlines in Iowa.

The first involves an active District Associate Court Judge in District 7.  Kyle D. Williamson is the subject of an "active investigation" according to The Quad Cities Times. The investigation coincides with Williamson being on paid administrative leave for an unspecified medical condition. The judge has not been back to work in over two months with no official word on either the matters being investigated or the medical condition warranting the extended leave.

The second case involves a recent disciplinary decision against former judge and current Iowa attorney James Weaver. There were two reasons Weaver's case was before the Supreme Court.  The first was his conviction for a second offense OWI.  The second involved his challenging the honesty of the judge that presided over his sentencing.  Although the OWI matter in and of itself would have warranted discipline, the Court examined the improper public comments by Weaver in much more detail. As this post by B. John Burns points out, the decision has a substantial impact in regards to what lawyers can and cannot say. The opinion will be talked about at all your ethics CLEs for the next year.

The bigger lesson in the Weaver case is don't shoot your mouth off in the newspaper about a judge. Although truth may be a defense, do you really think that it will benefit your career in the long run?

Courthouse Special Election and my first week in review

Rush Nigut has a great post about the Polk County Courthouse  on his Iowa Business Law blog.  The courthouse referendum is April 29th.  I am hopeful that the residents of Polk County will realize that the time has come to replace the bulk of the 108 year old building's courtrooms with a new structure.

I spent most of today ripping out the flooring of our kitchen and main hallway.  Pry-bar, mallet, chisel, circular saw and lots of help from my father-in-law.  I watched North Dakota stomp all over Princeton in the NCAA Men's Hockey Midwest Regional while I was doing that.  I'm originally from North Dakota and even though I'm an NDSU grad and can't stand the Sioux for all other sports, I am a die-hard when it comes to their hockey program. Anyway, on to the other point I wanted to make with this post...

The reasons I started doing this blog were a mix of a desire on my part to slow down a little and think a bit more about the practice of law and the issues facing criminal defense attorneys and some marketing advice from my web-guy Jake (who has been very patient as I obsess about this). 

I am one of those people that sort of "wound up" in law school and I'm still not quite sure how I ended up as a criminal defense attorney.  Up to this point in my career I haven't really paid that much attention to the bigger picture in regards to criminal law; it has been a job, if I won the lottery it would all be a distant memory.  But I've started to feel differently lately, that this may be a calling for me, that I have the opportunity and ability to do some good things.  This blog is first expression of those thoughts, and while my idealism could have been trod upon fairly easily, I instead got a lot of encouragement from the legal blogosphere.

I want to send my thanks to Rush and some of the other people who have taken their time to point me in the right direction.  Scott Greenfield gave me a lot of good advice early on and has given me some exposure on his blog Simple Justice. Douglas Berman also helped me out this week on his blog Sentencing Law and Policy, an extremely informative site that is a must read for every criminal defense attorney. I also want to thank Gideon, Nicole Black, Ronald Coleman, and Kevin Underhill. They all have really professional, well written blogs and they are all examples of how legal blogs should be done.

Pizza Delivery Driver Shoots Would-be Robber

As of the posting of this article James Spiers is not being charged in connection with an incident where he shot a would-be robber.  Spiers is a delivery driver for Pizza Hut and was sent to an apartment on the south side of Des Moines late Thursday night.  When he arrived a gunman attempted to rob him.  Spiers pulled out his own gun and shot the man in the side. 

Shortly after the robbery, a 911 call was placed from a nearby apartment building from a man who said he had been shot.  The man, Kenneth Jimmerson, was taken into custody and transported to the hospital. Police also arrested Melanie Stout on charges of conspiracy to commit robbery.

Spiers had a valid permit to carry a concealed weapon.  I did hear on the radio that they are still investigating the incident and charges may be filed at some point, but as of now it appears to be a pretty clean case of self defense.

Pizza Hut suspended Spiers for carrying a gun while working, which is against company policy.  Personally, if I'm this guy, I'm not sweating the fact that I can't schlep pies anymore.  I think he should look into a career that appreciates a skilled marksman; perhaps he could apply to be a pilot for US Air.

Woman Jailed for Violating Municipal Sex Offender Residency Restriction

The story of an Iowa woman recently jailed for violating a municipal sex offender residency ordinance is gaining some national attention on MSNBC.   Having already moved her family out of the town of Atlantic because there was no home that complied with the Iowa Sex Offender Residency Law; she is again forced out on the street (her kids placed in foster care this time around) due to a similar municipal ordinance.  As the story indicated, the local government crafted their ordinance to prohibit residency within 2000 feet of bus stops and parks because there were no schools or daycares in the town to prevent a sex offender from establishing residence. The case is a frustrating example of a modern day witch hunt.

The story lacks some significant details that are important to a complete analysis of what happened, including: whether the woman entered the plea with an attorney, the date the ordinance was enacted, and the actual language of the ordinance. 

A search of Iowa Online Court Records indicates the woman may have entered an uncounseled plea of guilty to violating the ordinance on February 14th, 2008.  An attorney was appointed on March 17th, 2008, (after she had allegedly violated the court's sentencing order).  If a jail sentence was possible it is concerning that counsel may not have been made available to the defendant. There is no indication when the law was passed, but the story certainly makes it sound like it was AFTER she moved to Marne.  If true it raises questions of Ex Post Facto punishment.

This is a story that needs more attention. If the facts of the case are half as bad as what is being reported, it is a good example of the unwarranted persecution faced by some convicted sex offenders. Sex offender residency restrictions are driven by hatred and fear, not by emperical or scientific data.  There are many good posts on the subject of sex offender residency restrictions on the Sentencing Law and Policy Blog of Douglas A. Berman.

Very good op-ed in the Seattle Post Intelligencer

Rick Steves is a popular travel writer that I have surfed across on Iowa Public Television from time to time.  He also has one of the worst named websites ever: Rick Steves' Europe Through the Back Door (what was he thinking?). Mr. Steves wrote a very good opinion column in the Seattle Post Intelligencer analyzing American marijuana control policy and what he has observed first hand in Europe.

We Need to Get Smart About Marijuana

The point of Mr. Steve's article is that current prohibition policy costs us more money than a safe and effective education and medical treatment policy.  He points out how European countries woke up to this reality several years ago.  For every dollar spent on education and counseling programs fifteen are saved from police, courts, and prisons. Decriminalization also leads to an increase in tax revenue. The last line is the best:

We need to find a policy that is neither "hard on drugs" nor "soft on drugs" -- but smart on drugs.

Unfortunately, I don't think we will learn this lesson any time soon.

A stunning proposal by the legislature

The Iowa legislature is moving closer to classifying stun guns as dangerous weapons.  The additional language is as follows:

Dangerous weapons include, but are not limited to a...

weapon directing an electric current, impulse, wave, or beam that produces a high-voltage pulse designed to immobilize a person.  A dangerous weapon does not include a bow and arrow.

Now for me, there are two things that jump out.  The first is the language about a weapon directing a "beam" that produces a high voltage pulse.  I think the fear here is a weapon such as THIS or maybe THIS.

The second is that they specifically remove a bow and arrow from the definition of dangerous weapons. I know what you're thinking.  Isn't a dangerous weapon any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal?  Let's ask this guy what he uses his bow and arrow for...

Honestly, I know what they are trying to do here, but I can see this one getting some bad results.  It could easily result in someone getting...overcharged.  OK, that one was too easy.  Also, I think of this is going to backfire when some cop uses a tazer on an outspoken student and he dies.  Police in Iowa better be all kinds of careful if they decide to use a "non-lethal dangerous weapon" on a suspect.

Iowa Court of Appeals reverses suppressed drug evidence

The Iowa Court of Appeals issued an opinion Wednesday reversing a Tama County district court judge who suppressed evidence obtained through a search warrant. 

Defendant Lysa Fisk was at her apartment when the Tama police chief came to talk to her about a complaint that a vehicle registered in her name was "abandoned" in the street. The defendant and the police officer spoke on the apartment's intercom where she wisely told the officer he could not come to her door.  Unfortunately she then agreed to come to the main entrance where the officer detected the "strong odor" of marijuana.  After the conversation ended the officer obtained a key and went back to the building where he walked around the common areas and detected no marijuana odor including in front of the defendant's apartment door.  The officer obtained a warrant and much to everyone's surprise, he found marijuana in the defendant's apartment. The defendant challenged the warrant focusing on the nexus between the marijuana and the defendant's apartment because the odor was only detected in a common area.  The district court agreed there was no connection and suppressed the evidence.  The State asked for discretionary review; and the Court of Appeals granted the request. 

The Court reversed stating that in determining the connection between the marijuana and the defendant's apartment the issuing judge may use reasonable inferences to establish the nexus.  The Court pointed out that the defendant was in her apartment immediately before the conversation with the police officer and came to the location of the conversation through the connected common areas.  The smell was only present when the defendant was present.

The conclusion here was actually pretty predictable. There have been prior Iowa opinions that have come very close to saying that the odor of marijuana alone would be probable cause to search a vehicle; although it has never explicitly stated this.  The decision in this case makes that conclusion a little more certain. It stands to reason then that if a search warrant can issue on a smell alone, the police can search a car on smell alone. The connection would obviously still need to be established in time, but that wouldn't be an issue in most vehicle searches.

The bigger thing to take from this case is...never agree to meet the police officer when you've just smoked a bunch of pot!  It always astounds me when defendants willingly put themselves in contact with a cop when they should be running the other way. Of course, maybe they do it because their judgment is a little impaired at the time.

Commercial drivers may see stricter sanctions for OWI test failures

My heart skipped a beat when I read the first part of the legislative briefs in the Des Moines Register today.  "Iowa drivers would automatically lose their licenses for a year if they fail a drunk driving test under a legislative proposal that passed the Iowa House ". It sounded like a big expansion of the current driver's license penalties for first offense OWI.  The current suspension is six months for test failures, and depending on the situation temporary restricted licenses are available, sometimes immediately. Since the driver's license consequences are usually  every defendant's biggest concern; I was worried we were going to see something like a one year hard suspension for first time drunk drivers.  Thankfully it was just another example of the Register misreporting what a law is actually going to do.

Upon reading House File 2651 it appears to only change Iowa Code Section 321.208 dealing with Commercial Driver's License Disqualification.  The current law only applies a one year suspension of a commercial driver's license if you are convicted of OWI first offense.  The new legislation would change that to have the suspension occur upon "test failure", meaning any test to determine blood alcohol concentration or drugs, not field sobriety tests.  There are some other changes to the general language to reflect the added section. Not as bad as the headline read.

This is the second measure this year designed to strengthen existing OWI laws in Iowa.  The first dealt with lowering the BAC limit in drunken boating cases to .08 to conform with the level for other motor vehicles.

Two cents can lead to a change of venue

Starting this blog has got me reading like I was a 1L approaching finals.  I've been reading online newspapers, other blogs, news sites, you name it.  When I was reading a story about an investigation at Iowa State University that involved someone allegedly brandishing a handgun, one of the comments after the story caught my eye. Here is the story, and here are some of the comments you can read:

"wow, why was this piece of garb[age] given bail. Keep him locked up, please..."

"He might as well get his diploma from the Illinois State Corrections instead of wasting the high school's time. But let's hear more about this "aspiring rapper" and "honor student "as well as how this is so "out of character" with him. Yeah right"

There was a comment on a television station's web story (not in the same county that jurors would be pulled from, but still alarming) stating:

"He needs to spend some time in prison, he will know what real fear is then...."

Luckily for Mr. Jackson the charges have been dropped...for now.

Defense attorney's need to be aware of the media exposure in all of their cases.  If the case warranted any media coverage it is important to track the comments section where people can put their two cents in.  I've had this come up in two of my cases.  One was a Burglary case (home invasion type) in a small town outside Des Moines that had an online version of the local newspaper.  The comments after the story were frightening considering the small jury pool; plus witnesses to the incident were posting comments using their real names and describing what happened in much more detail than the police reports!  In a murder case I did with my partner recently I was tracking the stories as the trial unfolded.  The day after our jury was picked someone posted comments on the story stating that they were in the pool of potential jurors but had been stricken; they were disappointed at their chance to convict our client. Based on the fact the poster identified herself as a woman and stated she sat right behind our client we were able to tell it was one of our strikes (Whew!). I'm convinced you will get two or three people like that in every criminal case; if they're arrested and sitting in court, they are guilty! The internet makes those type of people come out of the woodwork. But its not just whackos that post online comments on news stories. Average citizens (jurors) do, and with ability to post anonymously or to use a screen-name that has no identifying information they show us how they really feel.

Significant negative comments can lead to a change of venue.  I searched Google and came up with this example from a case over the summer in Colorado Springs.  The judge was very concerned about "Numerous vituperative comments about Deborah Nicholls on The [local newspaper's] online forum, including one that said she should be “lynched”.  Hmmm....wonder if the person who posted that would have told us about the whole lynching thing in Voir Dire? 

At the very least these types of comments can give you something to work with other than the standard..."there's been a lot of coverage in the press" arguments, it can show actual bias. In higher profile cases that are headed for trial, this type of research is absolutely required. At the very least you've protected your record for appeal.