IOWA CHAMPION

Pierre Pierce Cleared to go France

A 2-1 split decision from the Iowa Court of Appeals went in favor of former Iowa Hawkeye basketball player Pierre Pierce, allowing the convicted sex offender to travel to France to play basketball.  A District Court judge had previously ruled that Pierce should be allowed to live in work in France while under supervision in Central Iowa.  The Iowa Attorney General had filed for an emergency stay of that order, which was denied today.

While many people may see this ruling as special treatment, it really isn't as bad as it would appear. It is not uncommon for a person placed on probation to be supervised in another jurisdiction, or even to remain on probation in Iowa when they live in another state such as California or Texas.  The difference with Pierce is that his conviction included a felony, Burglary in the Third Degree.  So is that special treatment?

In every felony case that I have ever done, if the defendant is on probation in Iowa and wants to move to another jurisdiction, he must apply for a transfer of the probation through a process called an "Interstate Compact Transfer". That does not appear to have happened in this case.  But, if you look back on Iowa Courts Online, it appears that other previous requests for travel have been denied.  It is hard to say for sure without reading the order from the District Court and knowing what evidence was presented to the Court, but it is certainly unusual.

The real issue for me is that high profile cases with "unusual" results do two things.  First, it creates the appearance of impropriety because the general public and media are not going to know all of the facts and makes people generally lose confidence in equal justice.  Second, it makes it harder for all criminal defense attorneys because it creates unreasonable expectations in their cases. Everyone now wants the same thing "that basketball player got". One of the hardest things that a criminal defense attorney has to deal with is unreasonable expectations on the part of some clients. I always try to put each defendant's unique situation in perspective, but cases like Pierre Pierce, where someone has heard about them but knows nothing of the facts, law, and legal issues involved can make that difficult.

The case is under an application for further review, so it is not completely settled yet.  The Iowa Supreme Court may review the Court of Appeals ruling or they may let it stand as is. 

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.

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?

Another unjust application of Iowa's sex offender residency restriction

1977 was not a good year for Floyd Wright.  Apart from Sanford and Son being canceled, he was convicted of statutory rape.  Now, more than 30 years after his conviction, he is forced to find a new home because of Iowa Code §692A.2A (the 2000 foot residency restriction).

The Iowa Supreme Court issued a decision today in Floyd Wright v. Iowa Department of Corrections, Fifth Judicial District. The Court ruled that the law properly prevents Wright from living within 2000 feet of a school or daycare facility.  Wright was on probation for Driving While Barred, under the supervision of the Fifth Judicial District Department of Corrections.  Because of a change in ownership at his residence, he was forced to move.  When Wright gave his new address to his probation officer, he was told it was not appropriate because it was within 2000 feet of a protected facility. Wright attempted to sue the Iowa Department of Corrections for declaratory judgment and requested an injunction.  The district court in Polk County rejected Wright's argument, so he appealed.  He fared no better with the Supreme Court, who ruled that:

1)   The 2000 foot residency restriction applied to Wright because of the 1977 conviction.

2)   The application of the statute to Wright was constitutional. Specifically, there were no Equal Protection, Due Process, Bill of Attainder, or Banishment arguments of any merit.

This case is just another float in the parade of injustices that §692A.2A has created.  Someone from the legislature please tell me how this scenario protects children!

Iowa is fortunate in one regard with this law.  The Iowa County Attorney's Association hates it just as much as criminal defense attorneys. Anyone who mistakes this post for just another defense attorney complaining about something good for society should read their "Statement on Sex Offender Residency Restrictions in Iowa". It gives you all the information that you NEED TO KNOW about this law.

Des Moines sex offender's conviction reversed on Miranda violation

James Effler, convicted in relation to the kidnapping and sexual assault of a 2 year old child in the Des Moines public library, will likely receive a new trial after the Iowa Court of Appeals issued a decision reversing his conviction on a violation of his Miranda rights.

The fighting issue on appeal was whether Effler's statement of: "I do want a court-appointed lawyer...if I go to jail", was an unequivocal request for counsel.  The State of Iowa tried to argue that the Des Moines police detective that did the interrogation should have been allowed to continue questioning Effler because the statement was contingent on him "going to jail", and thus an ambiguous request.  The Court ruled that the officer attempted to avoid telling Effler that he was not going to be released, and that he was indeed headed irrevocably to jail.

The Court also mentioned that the officer "deftly implied that Effler could have a cigarette if he signed the Miranda waiver form. Effler signed the form, and and was then given a cigarette."

The State has petitioned the Iowa Supreme Court for further review on this case, but I think it is more likely than not that the Appeals Court's ruling will stand.  The officer pretty clearly ignored the statements about wanting a lawyer and then changed the subject to whether the defendant would be able to have a smoke. In other words, the officer did exactly as he was trained to do. According to the t.v. report tonight, there was no comment from the Des Moines P.D. after the ruling was issued.

Ineffective assistance and hearsay reverse theft and forgery convictions

Friday saw an Iowa Supreme Court decision in State of Iowa v. Reynolds that reversed a Muscatine County man's convictions for theft and forgery.  The decision gives a very detailed review of Iowa Rule of Evidence 5.803(6), the "business records" exception, but the reason the court reversed was for ineffective assistance provided by the defense attorney. The Supreme Court said that the defense attorney's failures to his client occurred before the trial court's error in six of the seven counts in the trial.

The case centered around several allegedly fraudulent money orders.  There was testimony from a bank employee that an email "error message" was sent from the Federal Reserve Bank "because the money orders were fraudulent". The testimony came in without objection during foundational questioning by the prosecutor.  There was an objection made by the defense attorney when the exhibits themselves (including the federal reserve emails) were offered.  The trial judge allowed them in based on the business records exception in Iowa Rule of Evidence 5.803(6). The Iowa Supreme Court ruled that the business records exception was not available without more foundation. The prosecutor did not present any testimony as to how the Federal Reserve generates the email error message or that it was a part of the normal course of business to generate such notices. The Court therefore ruled the district court admitted the documents in error.

That was not the reason the case got reversed, however.  You see, the exhibits were cumulative to the earlier testimony from the bank employee who testified they were fraudulent documents. The defense attorney should have objected to BOTH the testimony and the offered documents. The Court deemed the defense attorney ineffective, and granted a new trial on six of seven counts.

There was a separate hearsay analysis regarding testimony from the same witness about a recorded telephone message that was used as the State's basis to call the two money orders that made up the seventh count fraudulent. The Court ruled that for several reasons the witness should not have been allowed to testify to her recollections of the telephonic message, and that it was clearly not within the business records exception.  Counsel was not ineffective on that count because he had objected and a new trial was granted there as well.

Given the prevalence of email communications, this will end up being an important case for Iowa criminal defense attorneys.  It has implications in more than just white collar crime cases, so keep your eyes open for these issues when reviewing discovery. The other lesson for all criminal defense attorney's is that objections to hearsay have to made both to the exhibits themselves AND to the testimony about those exhibits.  You should never let a witness talk about the contents of an exhibit that has not been entered into evidence, and if the witness is attempting to "lay foundation" through inadmissible hearsay you HAVE TO OBJECT. Don't let the witness is do an end-around by getting the information in as "foundation", like they did in this case. If you need to voir dire them during your objection to show their testimony is based on hearsay, do it.

Drug sentencing post-Abrahamson in Polk County

I had a sentencing hearing this morning on a drug case that was tried in Polk County back in February, before the State v. Abrahamson decision. This is a recent Iowa Supreme Court case that I posted about on this blog. The judge's ruling in my client's case is an example of the application of the merger doctrine examined and clarified in Abrahamson.

The charges in my client's case were Delivery of a Simulated Controlled Substance and Possession with Intent to Deliver a Simulated Controlled Substance.  The facts of the case involved one transaction at one location over about a 20 minute encounter. There was some record made a pretrial proceeding as to whether or not the two offenses would merge for sentencing purposes in the event the defendant was convicted.  I felt there was a good argument that they should merge but I also agreed that the case law on the issue did not support merger. The issue was addressed directly in the Abrahamson opinion, which came out after my client was found guilty but awaiting sentencing.

At the sentencing hearing today, the Assistant Polk County Attorney assigned to prosecute my client's case agreed that the two charges must be merged for sentencing purposes according to the Abrahamson decision. He had contacted the Iowa Attorney General's Office for some guidance on how the decision should be applied. Apparently, the AG's office said that if there is one contemporaneous event with the same facts and circumstances, the sentences WILL merge per the Abrahamson decision. 

This will not be the outcome in all drug cases, obviously. If the police can show different conduct in different locations, or at different times (e.g. a traffic stop generating a Possession with Intent to Deliver Methamphetamine charge and then a later search warrant that would generate a Manufacturing Methamphetamine charge) then you will have charges that will probably not merge at sentencing.  This is a reasonable interpretation and is more in line with common sense.

I don't think a lot of people caught this part of the opinion because the majority of the opinion deals with speedy trial/indictment issues. I wanted everyone to be aware that this has in fact changed the law as far as sentencing in drug trafficking cases.  If you defend drug cases in Iowa state court, you need to read this opinion.  It can have an impact in plea negotiations if the prosecutor is made aware that the case that he thought had a maximum sentence of 20 years is now down to 10, and it has to be followed at sentencing.

Iowa Court of Appeals reverses suppressed drug evidence

The Iowa Court of Appeals issued an opinion Wednesday reversing a Tama County district court judge who suppressed evidence obtained through a search warrant. 

Defendant Lysa Fisk was at her apartment when the Tama police chief came to talk to her about a complaint that a vehicle registered in her name was "abandoned" in the street. The defendant and the police officer spoke on the apartment's intercom where she wisely told the officer he could not come to her door.  Unfortunately she then agreed to come to the main entrance where the officer detected the "strong odor" of marijuana.  After the conversation ended the officer obtained a key and went back to the building where he walked around the common areas and detected no marijuana odor including in front of the defendant's apartment door.  The officer obtained a warrant and much to everyone's surprise, he found marijuana in the defendant's apartment. The defendant challenged the warrant focusing on the nexus between the marijuana and the defendant's apartment because the odor was only detected in a common area.  The district court agreed there was no connection and suppressed the evidence.  The State asked for discretionary review; and the Court of Appeals granted the request. 

The Court reversed stating that in determining the connection between the marijuana and the defendant's apartment the issuing judge may use reasonable inferences to establish the nexus.  The Court pointed out that the defendant was in her apartment immediately before the conversation with the police officer and came to the location of the conversation through the connected common areas.  The smell was only present when the defendant was present.

The conclusion here was actually pretty predictable. There have been prior Iowa opinions that have come very close to saying that the odor of marijuana alone would be probable cause to search a vehicle; although it has never explicitly stated this.  The decision in this case makes that conclusion a little more certain. It stands to reason then that if a search warrant can issue on a smell alone, the police can search a car on smell alone. The connection would obviously still need to be established in time, but that wouldn't be an issue in most vehicle searches.

The bigger thing to take from this case is...never agree to meet the police officer when you've just smoked a bunch of pot!  It always astounds me when defendants willingly put themselves in contact with a cop when they should be running the other way. Of course, maybe they do it because their judgment is a little impaired at the time.