IOWA CHAMPION

No one talks, everybody walks

I have not been posting much over the last couple weeks.  Besides the never ending cycle of work that comes with a criminal law practice, there always seems like a lot of "stuff" to do in May: birthdays, spring lawn care, graduations, etc.  I'm not the only one who's posting with less frequency lately,Houston Criminal Defense Lawyer Mark Bennett has also lamented his spring break from blogging; so I'll dedicate this post to his "Million Dollar" advice.

I have recently had two clients who were fortunate enough not to be charged by the police right away.  There was an investigation that was ongoing so it afforded them time to contact me for advice before charging decisions were made.  In both cases I gave them same advice: under no circumstances do you talk to the police.  The first thing you do is come in and talk to me or another criminal defense attorney. The recommendation to keep your mouth shut doesn't change after our meeting.  The less said the better, especially to the police. 

Normally people (defendants) don't have the luxury of time or the ability to talk to a criminal defense lawyer before they talk to the police.  They come into contact with the police at the same time or very shortly after the suspected criminal activity occurs.  If they are in a custodial situation (arrested or its functional equivalent) and being interrogated, they will receive the all important Miranda warning.

The typical Miranda warning goes something like this:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.

Even the most ordinary, average, law abiding citizen could probably give you that approximate verse. There are few people, however, when faced with the stress of a police officer looking them in the eye and asking them questions, that will actually invoke their rights. 

The reasons people decide that they will talk to the police are varied. People are taught from a young age to obey police.  They think that if they don't talk they will "look guilty". Some people, frankly, are guilty but think they can "out-smart" the officer. Whatever the reason, they talk to the police. This is a bad, bad, bad idea.  The Miranda warning says it all. Anything you say WILL be used against you.  There is no maybe about it.  In all of my years of criminal law practice, if there is one thing that I have learned, it is that a defendant's statements to the police are the most powerful piece of evidence a prosecutor can have.  DNA is fine, but nothing really makes a jury perk up their ears as a defendant who "confessed".

Professor James Duane, has an online seminar that he taught entitled, In Praise of the Fifth Amendment...why I am proud to admit that I will NEVER talk to ANY police officer. There are many gems in the video by professor Duane, but the highlights as to why you NEVER, EVER, EVER want to talk to the police are as follows:

1. There is no possible way talking to the police can get out of being arrested.
2. Even if you are guilty as sin, if you talk to the police you are doing so without any benefit in return. Keeping your mouth shut may increase your chances of working out better plea deal later.  Don't be in a rush to convict yourself.
3. People can sometimes get carried away when talking to the police.  If you are mostly truthful, but exaggerate certain facts, it will be used to crucify you. Tell one lie and you are totally completely toast.
4. You run the risk of giving a false confession.  The Innocence Project has estimated that there incriminating statements were a factor in 25% of all DNA exonerations.  That means that in one out of four cases where a defendant was wrongfully convicted, their own words helped put them in prison or on death row.
5. Even completely truthful information will be used against you. "Sure I never liked the guy, but I would never kill him, and I didn't do this".  That could be 100% true, but all the jury hears is that you hated the dead guy....you have given the police your motive for murder.
6. If the interview is not recorded, the police can "forget" your answers, innocently misrepresent your statements, or lie.  What the jury hears and what you said can be totally different.
7. Even if the interview is recorded, unless you have 100% accurate and total recall of all the details of your life, you will make statements that are somehow inaccurate and they will be used against you.
8. Even if you are 100% truthful, have total recall, give a recorded statement, and don't say anything that would incriminate you...the police may have evidence that is mistaken, unreliable, or false.  The police may have a witness that is 100% wrong either through confusion or lies that tells a story that makes you look like a liar. You are now in worse position for having talked to the police.

Mark calls this concept Million Dollar advice. To Professor Duane, it is the easiest question a criminal defense attorney is ever asked by a client (The police are hear and want to talk to me, what should I do?).  Whatever label we give it, it can never sufficiently express how important it is to invoke the constitutional protections that we are afforded in a free society.  The best way I've found to get people to remember the idea is through humor.

No one talks....everybody walks.

Competency to stand trial and insanity

I've been spending the Memorial Day holiday with relatives so I missed the coverage of Ramona Cunningham's hearing on Friday.  I think most people are under the impression that this is simply a defense tactic to "get her off" or avoid a prison term.  If it is only meant to keep her free, it is one of the worst ways to go about it.

The competency issues raised by the defense are sometimes confused with an insanity defense by the lay person.  The defense of insanity is an affirmative defense to a criminal charge.  The defendant who pleads insanity is essentially saying that, even if I did it, my mental state was such that I am not truly guilty in the eyes of the law.  In Iowa, a defendant who "wins" with that defense is generally still committed to the Department of Corrections for a "treatment" program.  If that program is successful, the defendant would be released.  In the majority of cases the defendant is never released because they have an incurable psychosis.  There are some defendants that are released after years of treatment. When a defense attorney challenges competency to stand trial, it raises constitutional due process issues and it is not a defense to the charge.  It would be unconstitutional to allow a defendant to stand trial that (1) Does not understand the nature of the proceedings against them, or (2) That does not possess the mental abilities to assist in their own defense.  It is really about giving the defendant a fair trial.

In most state courts, as in federal court, if a defendant is found to not be mentally competent to stand trial, they will be ordered to a government run treatment facility, sometimes in a correctional institution, to undergo evaluation and treatment designed to restore competency.  The case will be reviewed every so often to monitor the progress of the defendant. The criminal proceedings are suspended while this process occurs.  The criminal case can be started back up upon the defendant being restored to competency.

Under Iowa law, if the doctors eventually throw their hands up and say "no matter what we do, it will not restore the defendant to competency", the court can order the State to begin a civil commitment proceeding.  The length of the commitment will depend on the potential length of jail or prison term the defendant is facing.  If the defendant is facing a murder charge, they could be committed for life.  If the defendant is facing a less serious charge, like drug charges, theft, or assault, the defendant can only be committed for as long as the maximum prison term they were facing at the time of commitment. 

If Ramona's "tactic" were successful, she would most likely be ordered into an inpatient mental health facility at a federal correctional institution or hospital.  As soon as she was "restored" to competency, she would be returned to Iowa to stand trial.  In the long run, it is extremely unlikely that she would completely escape prosecution if the only thing she is alleging is a competency issue.  Even if she does, it would mean years spent at a government facility.  Given that out come I can only think she wanted to put off the inevitable as long as possible.  My guess is that we see Judge Pratt find that she is competent to stand trial, and the trial set for July.

Iowa's competency statutes can be found at chapter 812 of the Iowa Code.

Kept down by the man

If anyone is wondering if the Polk County Sheriff is starting to panic about the projected operating costs of the new jail, rest assured, he is. 

While I was in court yesterday, I was given a form that is going out to all defendants in criminal cases in Polk County. The form explains the new policy of the Polk County Sheriff and Polk County Attorney regarding the collection of room and board fees for jail time. Defendants are warned:

"Once convicted and sentenced defendants must pay their fees or make arrangements to enter into a payment plan with the Polk County Attorney's Office"..."your wages may be garnished [by] as much as 25% of your net income"..."failure to make arrangements to pay may have other adverse legal consequences"...

Strong language.  I think they mean business.  I have also heard that there is an attorney specifically assigned to these collection efforts.

Now, I don't have a problem with the general idea of making a criminal defendant pay back the harms that he or she has caused in the commission of their crimes.  If you assault someone, you pay their medical bills as restitution, if you are convicted of theft for skimming from the till, you pay back your employer.  That makes sense; one of those life lessons you learn in kindergarten.

The problem I have with this, as with some other "fees and court costs", is that it has become the norm to balance the costs of the entire criminal justice system on the backs of those that can least afford it....The criminals. I thought that law enforcement was one of those things that the government did as a service to its citizens, you know...with taxes.

Some of the fees a criminal defendant can be expected to pay would include (depending on the type of case):

• Probation supervision fee: $300
• Court mandated educational classes (Think anger management, first offender education, adult life skills): anywhere from $70 to $85 per class.
• Jail Reimbursement:  $50.00 per day plus a one-time $25.00 processing fee
• Court Costs: $50.00
• Law Enforcement surcharge: $125.00
• Community service placement fee: $30.00
• Fines ranging from $65.00 to $1000.00 (for most cases) plus a 32% surcharge on top of that

The average defendant can easily come out of the case owing around $1,000 without including reimbursement for court appointed attorney fees or restitution to the victim.  In serious cases, the costs can quickly exceed $10,000.  For a $15.00 no seat belt ticket, prepare to pay $69.80...a total 465% more than the scheduled fine for the offense.

So what. They did the crime, they do the time, right?  Not exactly. If the defendant doesn't pony up the dough they end up getting their driver's license suspended, which causes them to lose their job, which is a violation of probation, which causes them to have to do contempt time in jail, which they have to pay for, but as we already know, they can't....and the wheel goes round and round. 

I talked with an attorney that has been around a long, long time, and he has seen more than one client whose tale of prison and woe started with a single traffic ticket.  The fines were a couple hundred bucks but when they weren't payed fast enough and he lost his license.  He drove (his mistake) and got arrested, which led to more fines, jail time, more administrative consequences to his license, and eventually more suspensions....you get the idea. Eventually he is in prison for driving while barred.

The prosecutors and judges try to keep a stiff upper lip when dealing with these people, after all, they were the ones that drove without a license.  If they can't learn their lesson, what are they supposed to do but throw them in jail?  But why was their license taken in the first place...non payment of a fine.  You have, for all intents and purposes created a debtor's prison. I think if you talked to them away from the court rooms every judge would tell you that this system is broken.  It doesn't need a minor fix here and their, it needs to be completely revamped.  We cannot continue to put people thousands of dollars in debt, take away their means of transportation, and expect everything to work itself out.  It won't.

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.