IOWA CHAMPION

General deterrance for graduating 3L's

I thought I would give a bit of advice to all the 3L's about to graduate.  Do not say you were on law review when you weren't...they could throw your butt in jail!

There is a story out of Lisbon (Iowa) about a woman who worked as a secretary at her daughter's high school being criminally prosecuted for falsifying her daughter's grades. The actual charge was one that I didn't even know existed: "Prohibitions relating to false academic degrees, grades, or honors". The case should serve as a stern warning to everyone about the consequences for not being accurate about your G.P.A. or your membership in Glee Club.

I've been practicing criminal law for almost 10 years now, and I never knew that you actually risked criminal prosecution for resume padding.  The law was passed in 1996, so I was just starting law school at the time. Hmmm, maybe I shouldn't have claimed to invented the Internet on my summer internship application with Whitfield & Eddy...Anyway, this goes on my growing list of useless criminal laws, along with:

Iowa Code §718.1 - Insurrection (I'm assuming that only a failed insurrection gets prosecuted, because if it's successful, who's gonna be left to file the charge?).

Iowa Code §717A.4 - Use of pathogens to threaten animals and crops, and §708B.1 Unlawful Possession of Anthrax (Do we need State laws against germ warfare? I think the Feds are on top of it).

Iowa Code §707B.4 - Human Cloning (At least we can still clone pigs!).

You wonder why the Iowa Code has ballooned out to six volumes worth of laws?

Just thinking about it gets me so frustrated I want to find a group of three or more people to act with the purpose of interfering with, disrupting, or destroying the government of the state or any subdivision thereof! If nobody wanted to join me, I could probably clone myself (twice). Then I could use my fake Harvard Ph.D. to get a job at a research lab, where I could acquire some anthrax and force people to make some changes around here!!  On second thought, I better not...there might be a state law against it.

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.