IOWA CHAMPION

Cities get the police force they deserve

The City of Creston fired Police Chief James Christenson Monday after the city reviewed the sexual assault allegations against him.  The Assistant Police Chief, John Sickels, was fired earlier this month after a similar review. The case has obviously caused the citizens of Creston a great deal of concern and a loss of confidence in their police force.

When I was a Sociology major at North Dakota State University, one of my professors talked about communities "getting the police force they deserve".  The comments were in relation to the infamous beating of Rodney King, which happened shortly before my freshman year.  The first trial occurred during that freshman year of classes.  My professor's belief was that citizens have to stand up for tougher standards for the police in their communities.  It starts with citizens that are willing to report the officers transgressions, but after that, it comes down to making sure that your elected officials not only hold the police department up to a high standard of conduct, but give them the tools to do their job effectively.

Politicians hate to confront law enforcement.  They worry that they will look "weak" on crime issues and that can sometimes be a make or break deal in an election year.  They also don't like to admit that there is a problem with their police force.  It is easier for them to conclude that the "criminals" are the ones complaining and nothing needs to change.  The only way the community can overcome this attitude is to be vocal about police misconduct; to convince politicians that they will pay a higher price for not addressing the issue. It takes an active community, one that cares about these sorts of things.  If you have a community that is willing to tolerate police misconduct, a community that doesn't complain or seek reform, they will have a police department that reflects that inaction.

I don't want to somehow shift the blame of this situation onto the citizens of Creston. But I do wonder about what was going on down there before this earthshaking event.  Had people ever heard their co-worker complain of getting pulled over for no reason at all?  Did people feel like they had a responsive, community oriented police force?  My guess is that this was not the first time people had a reason to question the quality of service, but that is just my speculation.

In the 1990s, Los Angeles and New Orleans were two cities that had very well publicized problems with police corruption and brutality.  They eventually turned their departments inside out in order to correct the problems (In New Orleans, they needed the F.B.I. to help).  One of the methods that New Orleans adopted was a strict "zero tolerance" policy for corruption of any kind.  If any officer was accused of misconduct, it was investigated.  If the allegations were substantiated, the officers were suspended or fired.  The program purged the department of dozens of corrupt officers, and sent the message to the department and the community that corruption would not be tolerated.

In addition to the aggressive stance on internal corruption, police also need community support.  This is how the idea of "community policing" came about.  Police need to be decentralized and have more of a personal connection to the areas that they police.  They need to be given the money for professional training and developement, good pay, and they need to have high standards for persons that are hired as officers.

In the case of small towns like Creston, I know that a lot of this is pie-in-the-sky talk.  There simply isn't the budget for a lot of training, and the pay probably doesn't attract the most qualified candidates for the job.  That's fine, but when this story first broke, I recall seeing an interview with one of the city officials that caught me off guard.  The person being interviewed stated that they couldn't believe the allegation and that she was standing by the officers.  It was a reaction I've seen a lot as a defense attorney.  I've seen that reaction in the prosecutor when I explain that my client is upset because the police were too rough with them, or that the cops that executed the search warrant stole property from them.  It is blind allegiance to the badge; the officer can do no wrong.  I am somewhat relieved that the City of Creston has taken the action that they did.  I think it sends a good message to police officers around the state that misconduct won't be tolerated. Hopefully, after the dust settles the people of Creston will hire some very qualified, professionals, agree to expand the police budget for better pay and training, and hold these new officers to a high standard.  If they do, I am sure they will get the police force they deserve. 

Polk County/Des Moines back to business, other courthouses remain closed

From the Iowa Judicial Branch website:

The Polk County courthouse in Des Moines, Iowa will be open Monday for regular judicial business.  The courtroom at the Polk County Jail will re-open for regular business to the extent possible.  The Small Claims/Suburban Traffic Court at the Riverpoint Facility will also reopen for business.    (updated 5:00 p.m. June 15)

Other courthouses in Iowa remain closed.  Check the Iowa Judicial Branch website for more information.

Polk County Jail and Courthouse closed due to flooding until further notice

At approximately 1:00 PM on June 13th, 2008, Chief Judge Arthur Gamble Issued the following administrative order from the 5th Judicial District Court in Des Moines, Polk County, Iowa:

Des Moines, June 13, 2008— The Polk County Courthouse and the Polk County Jail Court are closed due to Des Moines City officials' request for a voluntary evacuation of downtown Des Moines. The evacuation is in response to the projections from the Army Corp. of Engineers that levels along the Des Moines River will be close to the top of the levees today. The Riverpoint Small Claims/Suburban Traffic court is also closed until further order.

District Court Administrator Beth Baldwin released an administrative order this afternoon that includes a disaster relocation plan.

A skeleton staff of the Polk County Clerk's Office will operate at the Drake Legal Clinic during normal working hours (8 a.m. to 4:30 p.m.) to receive filings related to essential criminal, domestic, juvenile, mental health and substance abuse matters.

The Chief Judge, senior staff of Court Administration and senior staff of the Polk County Clerk of Court will relocated to the Iowa Judicial Branch Building, 1111 East Court Avenue, Des Moines, IA 50311, beginning Monday, June 16, at 8 a.m. to 4:30 p.m. until further order.

Decriminalization of marijuna in Iowa? Not yet.

I had someone recently ask me if they would get arrested in Iowa for possession of a small amount of marijuana.  The most straightforward answer a criminal lawyer can give is yes.  In Iowa, no amount of marijuana is legal to possess, not even for personal use, medical use, or to feed to your dog. No excuses, whatsoever. 

Now, just like other jurisdictions, police officers in Iowa have discretion to make an arrest.  If a particular officer in a particular situation doesn't want to arrest someone for a burned up blunt in the ashtray, fine, it's his call.  But nine times out of ten, you are at least getting a criminal citation which will result in a prosecution for a serious misdemeanor.  Most of the time though you're getting outright arrested and booked into jail.

Other jurisdictions are not so harsh.  In various States possession of less than four grams or some other low amount is a non-arrestable offense, you may get a ticket like a speeding ticket, but you pay a small fine and you're done.  That is not Iowa.  I have seen people in Polk County get prosecuted for residue in a pipe.  If there is enough "substance" to test, you can be prosecuted. Most of the time, even if that type of case is filed you will be able to work with the prosecutor to get a fair resolution.  If not, those are cases that need to be taken to trial, where the decision to convict is  up to the jury. Prosecutors that take on those types of cases to trial aren't going to have a high success rate.  My experience is that small quantity pot cases are some of the toughest to win for the State.  I'd say on any jury of 12 people at least 3 are occasional or moderate marijuana users.  If the defense attorney can give them ANY reason to acquit their client they will be ready and willing to do so. 

The outright jury nullification argument, however, is not likely to win any cases or gain you any respect from the Court. Besides being unethical, you will always have two or three people who think all drugs, even pot, are the scourge of the earth.  They will vote to convict on almost any evidence of guilt.  As a defense attorney, you have to give the pot smokers a little ammunition to fight these people.  Most of the time your client will be in a situation where you can argue a lack of knowledge or attack "constructive possession": It wasn't my coat, someone else put it in my purse, I was just the passenger in the car etc. If you've got something to talk about, you're alive.

Given the increasing strain on courts and probation personnel, Iowa would do well to adopt this method of handling marijuana cases.  They could put a $500.00 fine on possession and free up thousands of man hours and tax dollars by doing this instead of putting people on probation.  Fewer court appointed attorneys and less judicial resources (judges, probation officers, court clerks) along with a higher fine would be a financial moneymaker for the State.  Unfortunately, I just don't ever see the people that brought you the two-thousand foot law for sex offenders getting around to this issue anytime soon.

Bottom line is, in Iowa you take the risk of criminal prosecution for even the tiniest amount of marijuana.  Be warned, beware.

Judge rules Romona Cunnigham competent to stand trial

A Federal Judge in Des Moines has issued his ruling finding Ramona Cunningham competent to stand trial. The ruling was not a surprise to anyone familiar with the standards for competency in criminal trials.  The trial is supposed to begin June 30th, but (also as expected) an appeal of the ruling may delay the start of the proceedings. 

The judge sums up the situation in his ruling as follows:

...the only issue is whether, despite her condition and regardless of whether it is in her best interest from a medical and psychiatric standpoint, the defendant is capable of assisting in her defense. While the defendant does not want to go to trial and has serious anxiety related to the legal proceedings, a lack of desire to help her attorney is different than an inability to do so...

As I posted earlier, competency is not the same as an insanity, and even if her defense attorney was successful in convincing the judge she was not competent, because the mental health issue raised was one of depression, she would have been treated (in custody) until she was capable of assisting her attorney.  At best you have delayed the proceedings.

Creston Police Chief, Assistant Chief charged with Sexual Abuse

The Iowa Attorney General's Office announced today that two Creston police officers,  Chief James Christensen and Assistant Chief John Sickels, have been charged with Sexual Abuse in the 2nd Degree.

The charge is a Class B felony, and falls under the definition of a forcible felony (mandatory prison if convicted) and a 70% crime (no parole until 70% of the prison term is served - 17.5 years).  Obviously the charges are serious, and it is rare to see such charges against law enforcement officers, but the most interesting thing to me is that both officers are alleged to have made incriminating statements to the investigating D.C.I. agent.  Please refer back my post last week on never, ever, EVER talking to the police.

KCCI has the preliminary complaints on their website: View preliminary complaints and affidavits

Bail Bond and Pretrial Release in Iowa State Courts

One of the most important functions a criminal defense attorney can perform for their clients is securing their freedom pending resolution of the criminal charges they face.  In Iowa, that release is usually done through the bail bond procedure or through facilitating pretrial release with the Department of Corrections.

The United States and Iowa State Constitutions both prohibit excessive bail in "bailable offenses".  Generally all offenses are bailable, up to a certain point in the proceedings.  Iowa Code §811.1(1) lists the offenses that are not bailable upon judgment of conviction (awaiting sentencing).  They are mostly the same offenses that are considered forcible felonies (sex abuse, felonious assault, kidnapping, robbery, first degree arson, first degree burglary) but there are some other offenses listed, particularly drug offenses.  If you are convicted or sentenced on a class B felony Methamphetamine case you will not be permitted bail.  Generally, the rule of thumb is that if a prison sentence is mandatory under the Code, then forget about bail once you've been found guilty or enter a plea. 

Now, a lot of time I hear judges or prosecutors talk about a defendant not deserving anything other than "standard" bail.  This is somewhat of a pet peeve of mine, because there is no "standard" bail.  What those people are referring to is Iowa Code §804.21(5) which gives the judicial council the power to set a bond schedule that will be used in non-forcible felony cases where the Court is not in session.  In some counties (Polk for one), that schedule has morphed into the so called "standard bond".  The amount of bond required is determined by the seriousness of the offense: 

• Simple Misdemeanor:                    $300
• Serious Misdemeanor:                   $1.000
• Aggravated Misdemeanor:             $2,000
• Class D felony:                             $5,000
• Class C felony:                            $10,000
• Class B felony:                            $25,000
• Violation of 124.401(1)(c):            $50,000
• Violation of 124.401(1)(a) or(b):    $100,000

In general the so called "standard bond" is reasonable enough that most defendant's can pay a bondsman to get out.  The people that get outright hosed is the defendants facing felony drug charges.  In those cases the bond will almost never be able to be posted by the average defendant. In any case where bond just isn't happening, so you have to move on to the next step...contacting pretrial release and putting in an application for a bond review.

The Iowa Department Corrections handles pretrial release services in Iowa's various judicial districts. These services are used more frequently in the more populated counties like Polk, where there are significant numbers of cases filed and people in jail wanting out.If you are released through a pretrial release bond, they have for all intents and purposes, posted your bond for you, even though no money changes hand.  The pretrial release officer will take an order to the Judge and once it is signed, you are released to their supervision.   Pretrial Release has various levels of supervision, from the basic all the way up to intense supervision.  The conditions of your release will depend on the charges you are facing and the facts and circumstances unique to your situation.  If drugs or alcohol crimes are involved you will be required to attend some level of substance abuse treatment, there will be regular meetings you have to attend with your supervising officer, and you will have to have urinalysis screens for drugs.  It is always important to look into the defendant's substance abuse issues before delving too deeply into other pretrial release issues.  If the defendant has already been evaluated and there is a recommendation for inpatient drug treatment, you realistically won't be getting the defendant out on any kind of release until you can get that treatment accomplished.  That sometimes requires separate proceedings than a bond review.

There are various things that will disqualify you from a pretrial release bond.  Some examples are, coming back to jail while you have pending charges or previously violating pretrial release bonds in another case.  If those circumstances exist, the defense lawyer can sometimes work with pretrial release directly to address those concerns.  Many people will qualify for a pretrial release bond, but it takes time to interview the defendant, verify information, and come to a decision.  If you can be patient during the process it has the potential to save you thousands of dollars.

If you can't post a bond, and pretrial release isn't an option, you will have to file an application for bond review with the Court.  At the hearing, the judge will listen to evidence from both sides about what the bond should be.  The State will usually try to keep the bond as high as possible because they know that a defendant that is looking at sitting in jail several months awaiting trial is much more likely to listen to plea offers, especially where they will be offered probation.  The prosecutor will usually focus on the defendant's criminal history, or if there is little or none of that, the seriousness of the allegations (more serious charges increase likelihood of flight).  The defense lawyers will usually focus on family connections, ties to the community, work history, need to help prepare a defense, need to receive services such as substance abuse or mental health treatment, and where available, the lack of criminal history.  The judge's ruling can be appealed, but it is on an abuse of discretion standard, so if you lose, just deal with it by attempting to address the Court's concerns and then file another hearing.

If you are able to secure your client's release you will have a client that is (1) eternally grateful, (2) better able to help you prepare for trial.  I will try to run through the basics of pretrial release and detention in Federal Court another time.