IOWA CHAMPION

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

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.

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.

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.