IOWA CHAMPION

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.

New law requires lawmakers to think before they act

I was on the road all day yesterday and today so I didn't have much chance to write about the new minority impact law signed by governor Culver. The official press release states that the law will require a "Minority Impact Statement” for any legislation related to a public offense, sentencing, or parole and probation procedures.

The law is being touted as the first of its kind both federally and among all the states. It would make sense that Iowa would be the first state to pass a law to address issues of race in criminal sentencing laws.  Iowa has been identified as the state with the greatest racial disparity in it's prison system.  There are 13.6 African Americans incarcerated in Iowa for every 1 Caucasian.  That is really shocking when you consider that according to US Census Data, African Americans make up only 2.5% of the population. There is always some play in the statistics, but there is no denying that for some reason the numbers are out of whack.

I don't think anyone is saying that Iowa's criminal laws are inherently racist. The new law seeks to be proactive by making our legislature stop and think about the consequences on minority populations for anything related to criminal laws and sentencing. The situation that immediately comes to mind is, of course, the sentencing disparity between "crack" and powder cocaine. Rather than have to go back and fix a terrible law, maybe we can make people stop and think about some of the long term implications...other than looking tough on crime come November.

Personally, I think a broader law was needed.  We should have had the "Iowa Reality Statement" law.  It would establish a joint commission of judges, prosecutors, criminal defense attorneys, and corrections staff that would submit a "reality impact" statement to be included in every law relating to crimes and their punishment.  The "reality" statement would be a direct, honest, statement of what these criminal justice professionals feel the true impact of proposed legislation will have, not just on minorities, but on budgets, prison overcrowding, public safety, etc.  If that procedure were in place, I don't think we'd see a sex offender residency restriction or mandatory minimums on most drug crimes.

The "Iowa Reality Statement" law will never be passed, though. You can't legislate wisdom.

Begay decided; drunk driving not a "violent felony" for A.C.C.A. enhancement

Douglas Berman was correct when he said that this decision is more important to your average federal criminal defense attorney than the lethal injection ruling in Baze. Here is the skinny: The United States Supreme Court has decided the Begay case in favor of the defendant/petitioner. As a result, convictions for felony drunk driving will no longer be allowed as predicate offenses for application of the Armed Career Criminal Act: 18 U.S.C. §924(e)(1).

The Court examined the language of the A.C.C.A. and found a conviction for felony drunk driving was outside of both clauses defining a violent felony:

...any crime punishable by imprisonment for a term not exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

The Court stated that it was "a given that DUI does not fall within the scope of the Act's clause (i) 'violent felony' definition". This was also the Decision of the District and Appeals Court, so no surprise. 

The reversal came upon the examination of the "otherwise" language of clause (ii). The Court stated that while drunk driving undoubtedly "presents a serious risk of physical injury to another" it was "outside of the scope of clause (ii)" because drunk driving is too dissimilar to the Act's listed examples (Burglary, Arson, Extortion, or conduct involving the use of Explosives).

The majority did a fairly detailed analysis of statutory construction, history of the statute, and legislative intent. If you feel the need, I encourage you to read it.  The bottom line for the majority is that because Congress gave specific examples in clause (ii), it intended that only crimes "roughly similar in kind, as well as in degree of risk posed" to be included as predicate offenses for the A.C.C.A. enhancement.  Because drunk driving is not the same purposeful, violent, and aggressive conduct, as the listed examples, it is outside of the statute.

The majority was concurred with separately by Scalia, who takes a different path of statutory construction,  but still ends up in the same place.  Scalia's approach is to answer the question "Does drunk driving pose at least as serious a risk of injury to another as burglary?" (Which in his eyes has the least amount of risk of violence of the listed examples).  Because he answers his own question "No.", Scalia also votes to reverse the Court of Appeals.

Alito writes the dissent and is joined by Souter and Thomas.  Their statutory interpretation is much more on the plain language of the statute and they focus more on the harms caused by drunk driving.  Because they say it is a serious offense that is "extraordinarily dangerous", it falls squarely in the residual clause of the statute.

John Messina from the Des Moines Federal Defender's Office feels that in addition to the win on this specific issues, Begay "effectively overturns the Eighth Circuit cases that treat drunk driving as a crime of violence for career offender (§ 4B1.1) and § 2K2.1 (firearms offenses) purposes". B. John Burns has also posted about the decision, and rightly points out the impact of this decision will be felt by many, many federal defendants. This is a big win for the defense bar.

Jake and I have an appeal pending in the 8th Circuit on the same issue as Begay . Our brief was filed a couple of weeks before Begay was argued.  It looks like we will get a good result.

General deterrance for graduating 3L's

I thought I would give a bit of advice to all the 3L's about to graduate.  Do not say you were on law review when you weren't...they could throw your butt in jail!

There is a story out of Lisbon (Iowa) about a woman who worked as a secretary at her daughter's high school being criminally prosecuted for falsifying her daughter's grades. The actual charge was one that I didn't even know existed: "Prohibitions relating to false academic degrees, grades, or honors". The case should serve as a stern warning to everyone about the consequences for not being accurate about your G.P.A. or your membership in Glee Club.

I've been practicing criminal law for almost 10 years now, and I never knew that you actually risked criminal prosecution for resume padding.  The law was passed in 1996, so I was just starting law school at the time. Hmmm, maybe I shouldn't have claimed to invented the Internet on my summer internship application with Whitfield & Eddy...Anyway, this goes on my growing list of useless criminal laws, along with:

Iowa Code §718.1 - Insurrection (I'm assuming that only a failed insurrection gets prosecuted, because if it's successful, who's gonna be left to file the charge?).

Iowa Code §717A.4 - Use of pathogens to threaten animals and crops, and §708B.1 Unlawful Possession of Anthrax (Do we need State laws against germ warfare? I think the Feds are on top of it).

Iowa Code §707B.4 - Human Cloning (At least we can still clone pigs!).

You wonder why the Iowa Code has ballooned out to six volumes worth of laws?

Just thinking about it gets me so frustrated I want to find a group of three or more people to act with the purpose of interfering with, disrupting, or destroying the government of the state or any subdivision thereof! If nobody wanted to join me, I could probably clone myself (twice). Then I could use my fake Harvard Ph.D. to get a job at a research lab, where I could acquire some anthrax and force people to make some changes around here!!  On second thought, I better not...there might be a state law against it.