IOWA CHAMPION

Budget Cuts May Impact Court Reporters

The judicial system is not immune from the economic woes that have hit the country. Because of the State budget crisis, the Iowa Judicial Council is considering eliminating court reporters. Instead of having certified reporters to make a record of court proceedings, digital recording equipment would be used.  The idea will be discussed on Monday in a closed door meeting.

The proponents of the switch believe that it is the best way to reduce the expense associated with court administration.  The vast majority of the cost of court administration is in personnel expenses, specifically salaried positions.  There are about 190 jobs at stake with the shift, each with a salary of $45,000 to $70,000 plus benefits.

Currently, only Alaska relies completely on recordings, but other States have eliminated court reporters from certain types of cases.  In my practice only traffic cases and small claims proceedings use recordings, otherwise the record of the proceedings is produced by a certified reporter.

It don't like the fact that the meeting on Monday is "closed door".  Usually that's a signal they will be doing something unpopular and don't want to listen to the dissenters. I also have serious concerns about any proposed switch away from our current system and think there are a lot of questions that need to be addressed.  First, I am not convinced it will save any money.  Outfitting all of Iowa's 99 counties with the kind of technology needed to record court proceedings would seem like a terribly expensive proposition.  Would the larger counties, with larger dockets get better equipment?  Who is responsible for making sure the equipment is working properly during a trial?  What happens if there is a technical difficulty; is the record just lost?  I cannot imagine criminal case going up on appeal just to discover the record doesn't exist because someone forgot to turn the microphone on.  What happens when the attorneys move about the courtroom, will they still be heard?  Will transcripts still be available or do we now reference a time code on the recording?  If we are to still use transcripts, who makes them and who pays for that?How do you tell who is saying what, especially if people are talking over one another? One great thing about court reporters: they will let you know when you are doing something that makes the record unclear. 

At this point it is probably too early to worry too much about this.  It is all very preliminary. My hope is that our courts don't suffer because our government can't balance a budget and our economy is in the toilet.  In criminal cases especially, we cannot afford to cut corners when it comes to justice.

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.

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.

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.

Do it yourself criminal defense kit, only $199.99 plus filing fees...

The front page headline in today's Des Moines Register was about the increasing trend of self representation in courts in Iowa and across the country.  As the article pointed out the practice is becoming increasingly common in certain types of cases, mostly divorce and family law.  The article's author, Grant Schulte, stated that the practice is not gaining much momentum in criminal cases because of "free lawyers" through court appointments. That comment shows Mr. Schulte needs to do a little more research, but it is not the main reason for my post today.

The article was especially thought provoking for me, as I was appointed (on very short notice) as the standby counsel in one of the criminal cases mentioned in the article: State v. Forrester.  Although I obviously can't discuss any of the confidential matters I did in that role, the trial itself and the fact of my appointment are matters of public record.  As the article pointed out, Mr. Forrester's case turned out very favorably for him.  Facing a Kidnapping 2nd Degree charge (a 17.5 year mandatory minimum prison sentence) he came out with two misdemeanor convictions.  The other defendant mentioned in the article didn't do quite so well.

The process of acting as standby counsel was new for me.  I had prosecuted a pro se defendant with standby counsel back when I worked at the Polk County Attorney's Office.  It didn't have much of an effect on my trial strategy or frankly the outcome; the case was a dog and the pro se defendant got a not guilty verdict.  But, being on the defense side of things this time around was one of the best experiences that I've had as a lawyer.  It reminded me of my work with Jeff Noble (Assistant Polk County Attorney) as one of Drake Law School's ATLA mock trial coaches.  In teaching the process to another person, I reaffirmed my own knowledge and skills. It was also invaluable to be able to watch a trial from jury selection to closing without being so caught up in actually trying the case that I missed the dynamics of the trial; something I hadn't done since I was a law student.

After the verdict was in I had a chance to talk to some of the jurors.  Those conversations really got me thinking about how lawyers think about cases as opposed to what jurors think. I shuddered for a moment when I thought what the outcome could have been if I had been the attorney from the start and tried the case myself.  I consider myself a capable trial attorney. My trial attorney ego got very defensive at my thoughts after talking to the jurors: Would I have made the same arguments to the jury that the pro se defendant had?  Would I have focused too much on the technical elements of the offenses?  Would I have been able to get as good of an outcome as the defendant did for himself?

Thankfully for my ego we won't ever know the answer to those questions.  I just know that the case opened my eyes back up to the idea that you never want to assume anything about the way a jury will think. Every jury starts with a blank slate and as a defense attorney you have the opportunity to teach them why your client should win. Show them why the evidence is on your side and never underestimate the basic concepts...whose story is more believable; who couldn't keep their facts straight; are there gaps in the evidence presented by the State.  If you focus too much on the differences between specific intent and general intent the jury will probably think you sound like a slick lawyer trying to get his client off on a technicality.  They may even think you're one of them "free" lawyers they read about in the newspaper.