IOWA CHAMPION

Taking the easy way out

It is that time of year again. I saw the kids walking out to their bus stops for the new school year today.  The start of classes are usually a good time for that refresher course on what you are supposed to do when the bus stops to pick up kids.  I may try to sort through that for you, but I wanted to talk about the statement released from the 100 university and college presidents that asked for the legal drinking age to be lowered to 18.

First a little background: There technically isn't a national drinking age. Each State is responsible for setting the age at which alcohol can be legally consumed.  What Congress did in 1984 was tie highway funding to the minimum drinking age chosen by each State.  Chose to set your minimum age below 21 and you lose 10% of your federal money for roads and bridges.  Of course, nobody wants to have the government tit put out 10% less milk, so by 1987 every state set 21 as the minimum drinking age. For me this is just like the V-chip in your television: another example of the government having to step in and be the parent because a large part of its population is too stupid or lazy to do it themselves.

The argument for 21 as the drinking age is based largely on the "fact" that it saves lives because of fewer drunk driving deaths.  There has been a 13% reduction in traffic fatalities among 18-20 year olds since 1984, or about 900 fewer deaths per year.  There a couple of problems: (1) The methodology is suspect due to the subjective process that police use to determine if something is alcohol related; and (2) the law doesn't exist in a vacuum so you can't say that the minimum age of 21 is the cause of the reduction.  During that same time frame laws against drunk driving were strengthened with much more severe penalties, there was an increase in public education and awareness of drunk driving, there was an increase in vehicle safety standards, and the use of seat belts.  The groups like MADD claim that the statistics are "filtered" or "corrected" to take these other changes in laws or technology into account, but whenever you have a group that is so closely identified to a particular position, WATCH OUT FOR THE STATISTICS!

While there is certainly is some small reduction attributable to the change in the law, there are certainly other factors that contributed more (seat belt usage).

So where is the harm in a minimum age of 21?  What does it cost? To me, the harm comes in the erosion of respect for the law, the criminalization of normal adult behavior, and creating a culture that glorifies binge drinking.  It makes no sense to me that we allow an 18 year old to enlist in the army to fight and die in Afghanistan or Iraq and we tell them they aren't mature enough to go down to the bar with their friends for a beer.  I also can't understand why we are criminalizing normal adult behavior.  I know of several of my clients that have had to worry and fret over whether they will be able to get a job after college with a PAULA (Possession of Alcohol Under Legal Age) ticket on their record.  It is a scheduled violation, so you can't get most judges to give you a deferred judgment on it.

I believe that anyone vested with the rights and obligations of adulthood should be able to legally drink.  If you can serve on a jury, serve our country in time of war, get married without anyone else's approval, buy a house, or sign a contract, you should be able to drink. I believe that most parents are lazy.  They don't want to confront their children (read: under 18) on anything, let alone drinking.  They don't want to take the time to talk with their kids about alcohol abuse. By a legal prohibition for anyone under 21, they get off the hook (unless they are one of the "cool parents" that let their kids drink at home). The government is also taking the easy way out.  Instead of an education program aimed at younger persons they preach total abstinence by anyone under 21. That always works. Look at teen pregnancy, STD's or street drugs. 

The United States has a higher drinking age than all of western Europe and Canada.  Those countries have achieved the "results" of fewer traffic deaths through education and safety initiatives.  We could do the same if we weren't so lazy.  The bonus is that we would have a law that matched reality and made sense.  It reminds me of a quote from The Simpsons when Ned Flanders' hippie parents are at a loss for his hyper behavior...."You gotta help us, Doc.  We've tried nothing and we're all out of ideas".

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.

Downward spiral continues for former Assistant Pottawattamie County Attorney

A former Assistant Pottawattamie County Attorney convicted of theft and felonious misconduct in office is facing more jail time after he was arrested recently for OWI. 

Jeff TeKippe was arrested just after midnight, Sunday, March 30th after police say he was involved in a hit run with a parked vehicle.  TeKippe was charged with OWI, leaving the scene of a property accident, and failure to maintain control of his vehicle.

The drunk driving allegations come about six months after TeKippe was sent to prison for stealing drugs from the Council Bluffs Police Department evidence room. He was out of custody on an appeal bond at the time of his arrest.

This will be an interesting case to follow. Reading the article you can bet there will be several suppression issues raised. There also is the question of what TeKippe will do if the appeal on the felonies fails and he has to start serving his prison sentence.  He may decide to plead out just to end all the drama and come out of prison with a clean slate. Of course, by the same logic, the State could decide that prosecuting an OWI where the defendant is already in prison isn't worth it.  Considering who the defendant is though, that probably won't happen.

Maryland murders highlight judicial predicament

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

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

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

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

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

Pizza Delivery Driver Shoots Would-be Robber

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

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

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

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

Woman Jailed for Violating Municipal Sex Offender Residency Restriction

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

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

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

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

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.   

Is it better to be in prison in California or parole in Minnesota?

It was an up and down week for Sarah Jane Olson.  She's the 1970's radical turned Minnesota PTA mom who was put in prison about six years ago for planting a dud pipe bomb under a cop car in California. She also later plead guilty to her involvement in a bank robbery turned murder case.  The "up part" for Ms. Olson came when she was paroled by the California Department of Corrections.  The "down part" came when she was rearrested at Los Angeles International Airport.  It seems the pencil pushers in the parole office were confused about the two different sentences so they thought Ms. Olson was eligible for parole. The problem was she's not supposed to be out for another year. I don't think I'm the only one that believes there shouldn't be take-backs in the parole process.

Iowa's system of indeterminate sentencing reduces the chance of errors like that happening here.  Unless you commit a serious criminal offense like attempted murder, robbery, or sexual assault (or a drug offense) there are no mandatory minimums in Iowa.  If a person goes to prison they are technically eligible for parole as soon as they walk through the doors at the classification center in Oakdale.  If the parole board thinks your ready to be out, pack your bags.  Despite what some prosecutors and judges think, most prisoners in Iowa don't immediately parole.  Most will have to do some programming like substance abuse treatment or anger management and the wait lists for those programs are usually long.

I will probably post in the future about exactly how the parole process works and about calculations of good time and discharge dates etc.  For now if you want to look at how much time people serve on various crimes before paroling you can look at the Annual Report from the Iowa Board of Parole. It is a very useful tool to criminal defense attorneys and their clients that are looking at prison.