31 December 2012

Trash Rips

Trash rip is the phrase used by law enforcement to sneak to the front of your residence in the middle of the night and take the garbage you have set out for pickup the following day. Once they take your garbage, they take it to a place of warmth and comfort, dump it out, and go through the trash for evidence of illegal substances such as marijuana seeds and stems. Marijuana seeds and stems are evidence that marijuana is to be found in the residence from whence the trash derived. The courts uniformly, to my knowledge, declare that a person has no expectation of privacy in the trash that he sets out on the street for collection. I am most certain that if one read enough cases dealing with the fourth amendment and the searching of garbage bags one would find rationalization for this position. Personally I don't expect anyone to take my trash to go through it for any purpose and wouldn't much like it much if someone did take it. My neighbors, strangers, nor law enforcement do not need to know my business. The lack of expectation in privacy to trash is one of these judicial pronouncements without a basis in fact. Numerous such determinations have been made by the courts whereby they simply declare something as fact and we as citizens must conform to that determination. The practice of law enforcement to collect garbage from suspected users of illegal substances is not a secret. Most defendants who are the subject of such searches and then must endure a knock on the door by the ninja squad, usually with a battering ram, should know that neatly disposing of the remainder of their illegal substances or of the paraphernalia used to contain it or to use it is not the thing to do. Most regular drug users who I represent have been the subject of a search warrant or have friends and associates who have. They certainly have an expectation that the evidence of their crime will be disposed of properly in the landfill for none to see or suspect. These people are aware that the use of these substances is illegal, that they may be arrested, thrown in jail, fined, and required to hire lawyers. These people do not throw their used meth pipes into the front yard for the neighborhood kids to find or the guy walking his dog to pick up and call about. They put them in a bag with the other trash, tie the bag, and expect the garbage truck to pick it up and to disappear it the next day. To say that there is no expectation of privacy is simply to declare something contrary to fact. I would argue that the trash sitting in your front yard waiting for pickup is an extension of your residence, which is your castle to be protected from search to the fullest extent possible. It is part of your curtilage which is the area around your house and associated buildings. If you become aware that someone is lurking in your back yard at night or your hear something in your open garage at three in the morning, you call the cops. If you can't sleep and are looking out the window when someone pulls up and throws your garbage bags in the back of a vehicle, you don't call the cops because it is the cops. But if you did call the cops, would that not be evidence that there was an expectation of privacy. I think this a marvelous idea. Call law enforcement if someone takes your trash. You, as home owner, or resident are paying for the collection of your trash. You know who is to be picking it up. You know that the people picking up your trash have neither the inclination or time to be sifting through it. When you send a letter to a person, you have an expectation that the letter will go to that person, not to a third person. Trash is hardly any different. When you set your trash on the curb, you expect it to go to the landfill, not to the police station.

29 December 2012

Let Them Vote!

Our governor, Terry Branstad, has magnanimously decreed that it will now be easier for convicted felons to regain their right to vote. One does wonder about this as most convicted felons who would even consider voting are democrats. I'm sure there are many in his party that question the propriety of this demonstration of democratic enthusiasm. All is well though, in that most felons don't vote. They have long ago accepted the fact that voting has no effect whatsoever on their lives and is more trouble than it is worth. The harm done by this act is minimal, if any. The other sop given to the hardliners is the money. In order to be able to vote, these convicted felons will have to pay. It will cost money to vote. From what was reported of the decision by the governor in the paper, which may or may not have any basis in fact, in order for a felon to regain his right to vote, he must have paid his fines, court costs, attorney fees, and restitution or be making regular payments on them. Since 80%, at a minimum, of convicted felons are destitute, not much will be added to the state treasury from this decision by the governor--although it does sound good and will placate those of us who worry constantly about the state budget and high taxes. What this does, in fact, is further restrict the right to vote. The governor proclaims that it will now be easier for a felon to regain his right to vote but at the same time requiring money to do it. The effect is the opposite of the proclaimed which is exactly how we do things in this country. It works since most of us don't think about anything at all and certainly will not spend any time analyzing the governor's proclamation but will take it for what it is stated to be. As we are also creating felons at a rapid pace, the numbers of the public able to vote will continue to diminish. The legislature creates new felons every session. They should quit the quibbling and just make every crime a felony and we can solve the problem of ne'er-do-wells voting once and for all.

28 December 2012

Postage Theft

Perusing the federal criminal code for long-buried crimes, I ran across 18 USC 1720 which makes it a crime to reuse a postage stamp. Not only is it a crime, but Congress in its efforts to stamp out crime has provided that a person may be incarcerated for up to one year for reusing a postage stamp. Occasionally one will see a stamped envelope where the stamp was not properly cancelled. Since stamps now cost 45 cents, it is quite natural to think that it might be used a second time, no one knowing the better. Don't do it. You will have committed a criminal act therefore making you, at least in your own mind, a criminal. There are those who believe reusing a postage stamp is perfectly acceptable. If the post office can't properly cancel a stamp, then who are we not to use the thing again. It saves almost one-half of a dollar and is the thrifty sort of thing to do. The United States Post Office is charged with covering its costs. This was a Ronald Reagan enactment. Since the USPS charges for its services they should cover their costs if not actually make a profit. Why this most necessary function of government should be singled out to cover its cost is uncertain. Surely there are other ways the United States government can cover some of its costs. I suggest they rent out some air craft carriers to China or Japan. Russia might even be in the market for some warships. This would be a huge boon to the United States Navy. It would take a lot of stamps to cover the rental of a major warship for a year. When enacting a criminal statute it does not appear to be a relevant factor that the government must prove beyond a reasonable doubt that a person committed the crime. With the crime of reusing a used postage stamp, it would appear that the only method of proof would be to have a snitch. It doesn't appear that the United States Post Office has the technology to determine the reuse of postage; if it even exists. If it is clear that no one will ever be prosecuted for reusing a postage stamp, why does Congress make it a crime to do so? This question should be posed to our congressmen and senators. More than likely, no response will be given in that they have way too many important matters to deal with and can't be bothered with postage stamp theft. Enacting crimes is a fun thing to do; it enhances one's view of oneself as a ethical leader. It is one more step in the continuing project of the correction of immoral, public conduct.

27 December 2012


Occasionally as a criminal defense attorney you have a client who gives every appearance of being a person who can not be helped. In order to have even an interest in helping someone escape prison or jail, that person should show some small inclination in helping themselves. There are those who have very little, if any, socially redeeming value-they merely exist on the planet wandering about without the minutest contribution to anyone's well-being. True, as they do not produce anything, they consume very little-just enough to keep themselves alive. These people actually improve their prospects by being placed in jail or prison. They have food, warmth, and a bed to sleep in. These are items that may or may not be available to them regularly outside of jail. In these cases, their attorney should make little effort to have them released as early as possible contrary to their protestations. After all they have things to do, places to go, and people to see or so they say. Attorneys have ethical rules they must follow. These rules go to the idea that attorneys exist to assist their clients when dealing with legal problems, especially those of a criminal nature. The client comes first. However, clients come along whose reality is significantly different from the common. This can be the result of mental imbalance, stupidity, or simple ignorance. Ignorance can often be cured, but not the other two disabilities mentioned. There is no help for stupidity and little for the mentally deranged. We have a vast array of therapeutic placements for those hovering around the criminal justice system. Unfortunately little distinction is made between a person who is schizophrenic and one who has an IQ of 75 or one who simply doesn't give a rat's ass. We have apparently come to the conclusion, here in the U.S.A., that all can be helped, all can be productive members of society, all can learn to do what they are told. This is nonsense. To rehabilitate implies that a person at one point in his life did not need rehabilitated; the person exemplified the qualities most desired in a citizen. This premise is incorrect. We have a difficult time accepting the fact that there are those who simply can not or will not function as the society would have them function. I suppose we could take them out and shoot them like the Nazis did. We forget that the Nazis were killing their lunatics, schizophrenics, malformed long before they were gassing the Jews and gypsies. Theirs was an attempt to strengthen the race; a replacement for natural selection or a form of it. Since most societies have rejected this method of maintaining themselves, other solutions must be found. One thing we do have in common, however, is that these people should not be allowed to decide for themselves what is best for them. Someone else must do the deciding. It is certain, we will not leave them alone. They are far too obnoxious and annoying to be allowed to roam about at will. It may cost a great deal, but if they are incarcerated they will not bother the general public with their numerous needs; they will no longer be inconvenient and we can safely ignore them if they have been disappeared.

24 December 2012

Miracle on 34th Street

After surviving more than half a century without watching Miracle on 34th Street, I was coerced by the family into viewing it last evening. I can no longer brag that this movie belongs to my "Refuse to Watch List" along with Oklahoma, Sound of Music, and Gone with the Wind. As we have now reached a level of inoffensive speech such that we can now refer to Kris Kringle's mental health as opposed to his lunacy, we can analyse the situation in terms more susceptible to the understanding of the general public. The mental health hearing as portrayed in the movie went from whether Kris had such bad mental health based upon his belief he was Santa Claus and should be therefore committed and treated to the issue of whether Santa Claus is real. These seem to be two entirely different issues. People believe all kinds of stuff including things that do not exit nor having ever existed. Do we consider a person deranged, having serious mental health issues, because of what he believes? Historically, and currently, what people have believed has got them killed. Religion has been adept at this as has a myriad of ideologues. Ergo we must consider belief as something that is taken quite seriously by a vast number of humans. Now most people believe something, usually quite incorrectly; so we must decide if all beliefs are committable or just some of them. Or, is there a continuum whereby the local psychiatrist will suggest commitment, medication, or therapy. Psychiatrists, as all of us, must have something to do. Consequently, some sort of diagnosis and treatment is normally prescribed for beliefs that are patently false or not held by the majority of the community. Now it is clear from the movie that it was considered by some to be committable to believe yourself to be Kris Kringle, but perfectly acceptable to believe that Kris Kringle is real, crawls down chimneys, and visits every house on the planet in one night. It is also perfectly acceptable to convince your eleven year old that Kris is real and will deliver unto her her dearest wish. The judge did the right thing, of course, but it was a tortuous path to dismissal. I do love the prosecutor, it perfectly encapsulates some of the prosecutors that I have personally known; quite happy to prosecute some harmless old man for not behaving in a socially acceptable manner. It must be admitted that mental commitment is preferable to burning at the stake or the gulag which have been some of the past practices; but we're not quite over the idea that we should do something to and with people who do not believe as we do. Beliefs can result in actions corresponding to those beliefs. Possibly this is the concern of those who do not hold those beliefs. It is possible to believe in something with no basis in fact or logic, but an issue if the person holding such beliefs either expresses them or acts upon them. Kris Kringle not only believed, but expressed his beliefs and acted upon them, hence the problem. The moral of Miracle on 34th Street is that it is ok to believe your Santa Claus, just don't tell anyone.

22 December 2012

Office Flirtations

The Iowa Supreme Court filed an opinion yesterday, Nelson v. Knight, which resulted from office flirtation between a female employee and a male employer. Sex had not occurred but certainly was on the horizon when Mrs. Employer determined that her husband should fire the attractive, flirtatious, and suggestive employee. Well, Employee didn't think much of being fired, was apparently somewhat bitter about the whole experience, and brought suit alleging sex discrimination. Basically, she, Employee, was fired so that sex would not occur. Mrs. Employer was concerned that Mr. Employer might take advantage of the obvious offer of sexual gratification through his long acquaintance and growing affection for Employee and declared that Mr. Employer fire Employee forthwith. Which he did. Employee brought a sex discrimination suit against Mr. Employer alleging that she was fired because of her sex. The Court spends considerable time developing the thesis that this was not the case; that Employee was fired because she was a threat to Mr. Employer's marriage. She was fired so that a flirtatious and suggestive situation not become sexual. Employee believes this to be sex discrimination. The Court thinks otherwise. Sex at the office is not sex discrimination. If an employee is fired because of a jealous wife, too bad. It may not be fair, and it may be in poor taste, but it isn't sex discrimination. Personal jealousy resulting from office sex is not actionable especially when pastors are involved as they were in this case. The church is involved when sin is imminent. Mr. Employer properly admitted to violating the tenth commandment and properly atoned for his sin. The Court certainly can not determine otherwise. We can now all rest easier when we realize that consensual office sex will not result in onerous litigation when things go wrong with the arrangement. Considering the fact that most of us work in offices with people of the opposite sex these sort of situations are bound to happen on occasion. What one does need to keep in mind though are angry spouses who may object and interject themselves into such a cozy tete-a-tete-they very seldom become a menage a trois.

21 December 2012

Permission to Drive

Many are the complaints of government interference in our personal lives; the regulation of our daily activities. One of the most important activities, a most necessary activity, is driving a car. A citizen of Iowa may not drive a car, motorcycle, truck without permission from the State. I can think of few regulations more onerous than this one. I can not drive to the grocery store, to my job, to any other destination unless I have permission from the State of Iowa to do so. One wonders whether their was a populist uprising over this provision of the law when acted. When Obamacare came into existence, a violent protest ensued over government interference in our health care as if we haven't been living with government interference in our lives since birth. Apparently it is not appropriate for the government to tell you to get health insurance, but it is ok for the government to give you permission to drive a car. This doesn't seem to be logical. There is a certain satisfaction in knowing that a large number of people don't think the government has any business telling them not to drive. These are people I represent, charged with driving without a license, driving while revoked, driving while barred. A citizen of this state may be suspended, revoked, or barred from driving a motor vehicle. It is unknown why we have such a variety of names for the withdrawal of permission to drive except for the fact that our elected representatives believe they have the right and authority to determine who can drive a car and who can't. There are innumerable methods by which the State of Iowa can withdraw a person's right to drive a car; the methods seem to increase in number each time the legislature meets. The two major reasons for losing your driving license are: One, a person is considered to be dangerous behind the wheel, i.e., operating a motor vehicle while intoxicated; and two, money. If a person owes a fine, court costs, or has a driving related judgment, one will not be allowed to drive unless the sum is paid or a satisfactory payment plan is made. Our lives are organized in such a manner that driving is a necessity. We have had no say in this. Unless one lives in a high density city where all the necessities are within walking distance, driving is required. No such place exists in Iowa. Faced with the choice of not driving and taking care of yourself and your family, driving is the choice. Those who must drive are normally in the lower income range, often receiving government assistance. There is little an attorney can do for someone caught driving without a license; one had a driver's license or one didn't. If caught driving without a license, the person is fined, jailed, and the suspension extended. Now there are more fines to pay and poor paying jobs lost because of incarceration. This is nothing more than a tax on the poorest citizens. We must understand that we use crime for purposes of control. A most important unintended consequence of driving without a license is also driving without insurance. If one does not have a driver's license, one can not obtain insurance. The consequence of this is that a significant percentage of drivers on our highways have no insurance and in the event of an accident, the person with the insurance pays. The person without insurance is normally judgment proof and if the fault of the driver without insurance, our Department of Transportation will see to it that the person without the insurance will never have a driver's license for he will never be able to pay the insurance company of the driver with insurance who was required to foot the bill. None of this makes any sense, of course, but what does? Unless, as it obviously is, the purpose of these laws is to control the citizenry. The courts have rationalized this control by stating explicitly that a driver's license is a privilege not a right. This simple statement is the basis on which the State of Iowa gives its citizens the right to drive a car. If the statement were turned around and the courts would have stated that a driver's license is a right not a privilege, the world would be a different place; and apparently, in the eyes of the legislature, chaos would ensue. This assumption seems to be without merit. There is little likelihood in this land of the free and home of the brave that anarchy would reign if its citizens had a right to drive.

20 December 2012

Traffic Cameras

The Polk County Board of Supervisors has recently authorized traffic cameras for rural areas of Polk County on a party vote of democrats for and republicans against. This is enough to cause a person to cross party lines and support the forces of reaction and imbecility. According to newspaper reports this decision has nothing whatsoever to do with revenue, but with safety. If this statement is true, it is another example of elected officials assuming that the pubic is a complete dunce. It is so patently false to be ludicrous. Of course it has to do with revenue, or as we say, revenue enhancement. In the name of safety we will now be tracking the public on rural roads to ensure they don't kill themselves with excessive speed. What I'm looking forward to is the placement of traffic cameras monitoring the stop signs on gravel roads around the countryside. Anyone who would stop for a stop sign on a gravel road where there is no traffic and no intersection meeting of vehicles in living memory, should not be allowed to drive. Traffic signs have two functions: to direct the flow of traffic and to establish liability in the event of an accident. A stop sign is not placed at an intersection for the purpose of requiring a vehicle to stop its forward motion, it is placed at the intersection for the purpose of assisting motorists traversing the intersection if two vehicles should approach it at the same time. A large number of drivers of motor vehicles on our highways pay no attention to anything outside of their vehicle and need help when encountering another vehicle when surprised by seeing one in their vicinity. There are many too many things inside a car to be bothered by what is outside of it. We have people to talk to or text on the cell phone, the radio to adjust, the cd player to manipulate, the cruise control, sandwiches to eat, make up to apply, on ad infinitum. Ergo we need an occasional stop sign or a yield sign to decide who gets to go first. In addition, the psychology of a vehicle operator is different from the psychology of the person when not driving. When not driving, the normal citizen of our great country is compliant, without noticeable aggression, but when behind the wheel changes into an aggressive, compulsive, and rather stupid human. It is remarkably good fortune that even those of the lowest ability to learn are able to drive. Driving a car is superable easy; probably one of easiest things one can do. Cars practically drive themselves. But back to the point, traffic cameras in rural areas are simply another version of tax with the additional governmental function of controlling its citizen's behavior. All I ask is that we see it for what it is. Safety has nothing to do with this so let's just admit it and not be stupid about it. In any event a traffic accident now and then is not such a bad thing. It gives work to wrecker crews, law enforcement, ambulance crews, hospitals, lawyers, and insurance adjusters. By reducing accidents, the supervisors are reducing employment and income. The people earning their income from personal tragedy should put themselves on the next board meeting agenda and voice their concerns.

18 December 2012


Bigamy is a serious misdemeanor in Iowa. The only surprise is that it is a misdemeanor since sex is involved and most everything involving sex is a felony. Bigamy is one of those crimes having been on the books since time immemorial the purpose of which most assuredly was property. The probate courts would be in a mess if more than one wife or husband showed up upon the death of the spouse. By simply not recognizing the second marriage solves the problems associated with multiple spouses. Maybe the Mormons have the solution to these thorny property issues. Considering the fact that half the population now cohabitates, we just don't worry about bigamy any longer. People don't marry, they merely live together. They do have fiancees however. A fiancee now indicates someone you are living with wherein there is a sexual relation. Fiancees may change regularly and often and many are what are termed serial fiancees. This is clearly demonstrated by the number of children a woman has by different men. She is a serial fiancee. Now the men are less easily identified in that they usually don't take their children with them when moving on to another fiancee. They too are serial fiancees. For these people bigamy is not an issue. Where bigamy may be an issue is in the wealthier portions of society where a person's main interest is property. In these situations, it has been known, that a person may serially marry for the purpose of acquiring wealth whether in the form of property, money, insurance proceeds, etc. Here probate may be a problem causing extended litigation. In the example of the serial fiancee previously mentioned, property is usually not an issue. No probate problems will arise, at least none the social workers can't iron out. It is clear then, that the crime of bigamy is strictly for the benefit of probate referees and the courts and is reinforced by the 7th Commandment which strictly prohibits adultery. It would be interesting to know whether the concern over property or the religious injunction came first. My guess is that the concern of property came first and the religious injunction subsequently to give it effect. The issue of multiple spouses was compounded by the issue of multiple children by multiple spouses. What then? Just a real mess when it comes to dividing everything. The English have always been perplexed by the problem of illegitimate children which naturally arises in cases of bigamy. Shakespeare is full of bastards; a term so passe now that not one in 50 school children have ever heard the word let alone know what it means; and luckily so, since half of them are in fact bastards.

17 December 2012

Petsmart Petulance

Yesterday was the first time I visited a Petsmart store and am having a difficult time getting my mind around it. We followed a couple into the store who had a dog on a leash. I understand that Petsmart encourages people to shop with their pets. It was a surreal experience somewhat akin to being beamed into a Salvador Dali painting where things look familiar but are somehow askew. Several aisles were piled high with innumerable flavors of dog food, for various health benefits, and specific to different breeds of dogs. One variety of dog food in a rather diminutive bag was listed for $72. Unbelievable. There are more people than you can count here in the United States that do not have $72 to eat with for a month; and, we will buy a $72 bag of dog food so that the fur on our dog will be silkier or the dog may have an allergy! The shoppers in the store were decidedly not the super 1% rich as we read about. They were most certainly people who actually work for a living, paying mortgages, borrowing money to buy cars. But because Petsmart exists, one must go there and conform to the behavior expected, i.e., take your pet. Petsmart provides a shopping experience; an experience designed for the purpose of selling pet supplies at exorbitant prices. In that they have in stock 150 varieties of dog food and 75 varieties of cat food along with all the accoutrements such as every size and flavor of chewy, treat, toy conceivable, one is required to buy something. What I find troubling is that because something exists, one finds it necessary participate in its existence. Just because bungee jumping exists does not mean one is required to bungee jump. I made the mistake of making some disparaging remarks about the experience of Petsmart and met with actual hostility apparently with the opinion I was personally attacking those to whom I spoke and their animals. I have learned, and actually purposefully used, the method of alienating people by telling them that they have a really ugly pet-usually a dog. Apparently this was the thought of the people to whom I spoke; that I was attacking their beloved pets for which Petsmart and its ilk exist. Now that I have been chastised, I shall attempt to appreciate the pet mall as a necessary accoutrement of our modern, consumer world.

15 December 2012


The shootings at the elementary school in Newtown was an act of random violence. There will be a reaction to it, both politically and legally. It is very difficult, if not impossible, to protect yourself from acts of random violence. It can not be foreseen by those who are killed or injured. It is an act of terrorism as that term is and should be defined. Terrorism is the attack by one person against a second person to send a message to a third person. The second person is simply the victim of the conflict between others either real or fanciful. The shootings in Newtown will have an impact on this entire country; it has a psychic impact and affects us all. What I do find ironic in this act of violence is our lack of response to these acts of violence elsewhere. These types of acts are played out daily in Iraq. A car bomb goes off in a crowded market killing 40 men, women, and children. A road side bomb explodes in Afghanistan randomly killing whoever might be in the vehicle that set it off. Always, in the mind of the perpetrator, there is a reason for killing people who you don't know, who are minding their own business, who are simply living day-to-day without hurting anyone. The people of Iraq and Afghanistan, the mothers sending their kids to school, those going to market to buy provisions for dinner live with the knowledge that there kids or mothers may not be home that night. How do they do that? Our first response to Newtown is that such acts are not suppose to happen here in the United States. We are different; this is not how we settle our differences nor employ our dissatisfaction with our own lives. As we have seen in the last few years, there are always a person or two, of a country of 300,000,000, who believe it is the thing to do to go on a killing junket. These acts of violence are first given credulity, then planned, and lastly executed. They are not impulsive acts. The one ingredient in all such acts is a message. The person committing the act is sending a message; is expressing himself; making a statement. In this case guns were used; just lately, in China, school children were attacked and killed with a knife. There will be a violent argument ensue from Newton over guns. The president immediately indicated that there will be a reaction to this shooting; the gun people are girding themselves for battle. Rather than react as we are wont to do with all things untoward, lets think about it first. Let us first decide if we can actually do anything about these random acts of violence; is there something in the national psychic that can be addressed? Personally, I doubt a solution. The human impulse to control others; the dissatisfaction all of us feel at one time or another with our own lives; the urge to have an impact are unmanageable. The 20th century saw a hundred million people slaughtered, starved, tortured; the most destructive period in the history of humans; and we did it to each other. Maybe we are better now, but the 20th century was not so long ago, and it is difficult to see that we, as a species, have changed much.

14 December 2012

Trial by Jury

Court service days are those days in court where defendants appear for matters that take little time such as arraignments, pretrial conferences, uncontested motions, etc. These terms are not self-explanatory, but attorneys practicing criminal law will understand the process. The courtrooms are full of defendants and attorneys waiting to plead guilty, plead not guilty, negotiate a reasonable disposition of the case, or to take care of other matters that may present themselves none of which take more than a few minutes. What becomes obvious with only a few minutes observation is that the vast majority of defendants plead guilty to something--either the original charge or some lesser included offense. This observation is reinforced when discussing a new charge with a new client and asking about his previous criminal history and if ever he has gone to trial on anything. The answer, with very few exceptions, is the person has never gone to trial but always plead guilty to the original charge or some lesser included offense. Most often the reason is to be released from jail since bond could not be made. Often times it is simply to get it over with. Criminal charges are disruptive, anxiety producing, and expensive even for those with unlimited leisure. The criminal justice system is a factory production. It produces compliance and revenue; the perfect combination. What is apparent, however, is that this system operates only because of the cooperation of defense attorneys and defendants. We as a group are complicit in this organized assault on our clients. If, on one day, on one court service day, each and every defendant said "I'm not pleading, I want a trial", the criminal justice system would implode. No court could withstand the onslaught of trials; they simply could not be scheduled. Prosecutors would be incapable of rational thought wandering about the halls asking themselves what to do. Court attendants and clerks would be staring about in wonderment. Law enforcement would be spending their vacations and off duty times waiting endless hours at the courthouse to testify. It is amazing just to think about. The chances that this vision would ever become reality borders on zero. There is no economic impetus for a trial. Defense attorneys lose money going to trial. Defendants incur costs they cannot afford. Family, friends, and associates called to testify grumble over the imposition. It is all very disadvantageous. From observing the run-of-the-mill defense attorneys there is little interest in trying any case unless the defendant actually insists on a trial. In a county such as Jasper, where you may have one jury trial a quarter but hundreds of criminal charges, something is askew.

13 December 2012

The Sporting Life

The sporting life from what I can observe consists of schlepping children to and fro from their various athletic endeavors and watching sports on television sitting in an easy chair. Parents begin transporting their children to such things as t-ball and soccer pre-kindergarten. Soon these activities are transcended by soccer, softball, baseball, football, volleyball most or all of which may begin as early as kindergarten. These activities continue through high school with increased intensity as they evolve into school activities as opposed to a collection of parents self-organizing. The purpose of these activities is difficult to ascertain. Most of the urchins engaged in these activities are not athletes, give no indication of ever being athletes, and would be just as happy playing tag on the school grounds. The purpose of these child athletic engagements appears to be for the benefit of the parents. The parents are required to organize these activities, to transport their children to them, wait until finished, and deliver them up again home. It is the opportunity for you, as the parent, to meet other parents with which you have nothing in common and having nothing to talk about. It is also the chance to yell at the coach, grumble that your kid isn't getting enough playing time, complain about the referees, or the best scenario, to get in a fight with a parent of a kid from the other team. And, you take turns in the concession stand so that snacks are available and money is found to finance these activities. This latter is a real treat. By taking your turn in the concession stand the parent is unable to ignore anyone, child or adult, and must, at the minimum, show enthusiasm. Depending upon the parent's endurance, sporting activities for one's children can consume every evening of the week and both days of the weekend. For those who follow this path, their lives most be totally vacuous, without the hint of meaning or interest. Between the children's sporting activities and television sports, such parents live a nearly vicarious existence. It is difficult to know why anyone would want to be acquainted with such people let alone spend time with them. Children are inherently uninteresting and these parents spend a great deal of time successfully emulating their children. It is difficult to believe the children are in the least grateful. Comments of the children would seem to indicate they have some inalienable right to participate in these activities clothed and shoed as expensively as possible with the ever present water bottle at their disposable so they remain properly hydrated. If mediocrity is reached, parents are cajoled into summer camps for the improvement of technique. The expenses mount and vacations are foregone, but the children are happy.

12 December 2012

Student Cheating

The latest outcry of concern in our daily publications is student cheating which to read the reports is endemic in our institutions of learning, from grade school through Ph.D. programs. The concurrent message is that we must immediately do something about it; what, no one says. But all are agreed that it is an onerous development and one that reflects poorly on us all. Personally, I've never been especially exercised over cheating in school considering the fact that a majority of the students in school don't take learning seriously enough for it to make a difference to them or anyone else. Secondly, most of the things students are suppose to learn are either wrong, superficial, or irrelevant. Not that one should endorse cheating, but there are certain things about cheating that seem to be positive. For instance, cheating takes some initiative. It also takes planning, preparation, courage, risk taking, and good nerves (coolness under pressure). These are all qualities that we encourage in our children; but as with so many things in life, if we do them we are being naughty. Again I'm not saying we should encourage cheating, but maybe it isn't the end of the world either. I suspect cheating is not a new phenomenon. I remember reading the Iliad and the Odyssey years ago and thinking I wouldn't trust those Greeks for anything. If my memory is correct, they would lie and cheat with the best of them. So I suspect that cheating is not new either in school or out of it. I suppose we could make it a crime like we do everything else we disapprove of; if caught cheating, off to jail you go. Or, if not having reached your majority, then to detention center; or at least put on probation where you can be monitored by the juvenile probation officer for evidence of continued cheating. The general public must be satisfied; a little like the Roman Collosseum. Cheating is a crime in numerous areas of endeavor such as tax returns, fraudulent transactions, illegal cable hook ups, failure to return library books, prenuptial agreements, fabricated SEC filings. The list could go on, but the point being, no good reason exists to exempt children from the criminal justice system if they cheat. They need to learn early the arm of the law is long and demanding. The earlier the better. As stated in other contexts, it is time to call our legislators for action. New legislation is needed.

11 December 2012


Over the years I have heard more complaints than I can count that welfare payments are simply a form of taking from those who deserve the money they make and giving to those who won't work and don't deserve money they get. This misses the point entirely. Welfare is simply another method of controlling the lower classes and it works very well. The person giving the money has control over the person receiving the money; this fact can hardly be disputed. In the case of welfare, it is the government giving the money, and the poor, uneducated, dysfunctional people receiving it. Without this monthly stipend, the government would have only the police to keep these people under control. With welfare, the Department of Human Services is created and staffed for the purpose. Social workers in the guise of helping those who need the help are in fact the second wave of enforcers of morality, public order, and discipline. Where the police are unable to justify throwing someone in jail, the social workers are called in to deal with the schizophrenics, the terminally depressed, and the other misfits who have lost what little housing they have or their residences are too full of mice and cockroaches to be habitable. Social workers are paid to monitor the activities of these folks; to act as payees, to ensure that the rent is paid, and to prohibit them from making nuisances of themselves. Giving someone several hundred dollars a month is quite cost effective. Without the monthly stipend, Walmart's loss prevention officers would be overwhelmed, beggars would suddenly appear in the streets, burglaries and robberies would multiply. All this would be very annoying to us decent folk who go to work every day and do what we are told. I have attempted to explain this to my Republican friends without success. The opinion continues to hold that these people should take responsibility for their own lives and not be supported by the rest of us. I think they should make up some posters and place them in various locals around our urban areas where these people live. This might make the difference. Once they read the exhortations on the posters, behaviors will immediately change and peace will reign. The fact remains though, the fact which remains unacknowledged, is that what should be is different from what is. It would be paradisical if what should be actually was reality; but it isn't and it would be better if we acknowledge it so we can deal with it.

10 December 2012

Paid to Think

In a world of jobs, thinking is not a requirement. Thinking, in fact, is a detriment to productivity. One does not pay the stocker at HyVee to think nor the person at the cash register at McDonalds. The last thing an employer of these people wants is a workforce who spends its time on the job thinking about anything. The common opinion on teenagers working, which make up the vast majority of these employees in these jobs, is that they are good training and experience for adulthood. And in fact they are wonderfully good training for a career of working without thought which is expected of most of us most of the time. An exception to this mandated life without thought is the legal profession. The idea of thinking is an integral part of the law school curriculum. For many this is a difficult concept to grasp and even more difficult to practice. It is a new experience for most and thinking can be difficult if one has never done it. A large number who enter law school leave shortly thereafter having soon come to the conclusion that thinking is not for them. A graduate of law school really doesn't know much more than when he matriculated; but presumably the graduate now has the ability to actually think about issues presented. Unfortunately lawyers fall into the general malaise of the nonthinking population by limiting their thinking processes to their professional duties. They, like the general population, identify. They identify with a political party, a religious organization, a social network. Once this has been accomplished, no thinking is required. That job has already been done. There exists nothing in daily life that requires thought. And by thought I do not mean deciding on what to have for dinner or whether or not to put an addition on the house. Being a creative chef or builder of additions are activities, not thinking. For most of us, when not working we are engaged in activities. Activities are another substitute for thought. The major activity appears to be television. One can not drive down the street looking through windows, day or night, and if anyone is present, the television is on. Some engage in more than one activity at any given time such as watch television and cook. Thinking requires two things, at a minimum: effort and knowledge. Without facts one has nothing to think about and without effort the facts are de minimis. One only needs a brief discussion with a high school graduate to realize that our public schools are not in place to produce thinking adults; they exist to incorporate and indoctrinate but most importantly they inculcate respect for authority. An example of this is the successful effort by the schools to convince our children that it is great to be an American; that America is the greatest country in the world. I'm not saying that it isn't, but why is it or why may it not be. This is something we definitely do not want our citizens to give thought to.

08 December 2012


Have you ever thought about the concept of punishment? Where did this idea come from? God punishes sinners; parents punish children; governments punish citizens. It seems that underlying each of these is control. If you can not punish someone, you can not control them. Punishment is not revenge or retaliation. Revenge and retaliation arise from impulses distinct from controlling others; they are more primitive. But punishment implies power; without power one is unable to punish or to control others. Throughout history men have imprisoned, killed, maimed, and tortured other men as exhibition of power. It must be very satisfying to know that you can control other people by punishing them. Presumably the justifications for controlling others are as many as those who have the power to do so; but it is based on one unconvertible idea which is that the person with power is superior to the person without it. I am sure that this subject has been discussed by people wiser than myself, but it would seem to me that power is a gift from one person to another. In order for a person to have power over me, I must allow it to happen, I must give him the power to do so. Without my acquiescence, no one can control me. There are folks who refuse to be controlled. A good example are some of those who I represent who have used, continue to use, and will use in the future illegal substances. They refused to stop using them whether it is a crime or not. Our governments, especially the federal government, has decided that they will simply put these people in cages and keep them from these illegal substances for most if not all of their lives. It is not that these people are particularly dangerous or harmful to others; they are simply uncontrollable. They will not do what they are told to do. And since they will not do what they are told not to do, the government will insure that they don't by placing them in cages where they will be told what to do every waking moment of the day. They will be told when to eat, what to eat, when to sleep, what to watch on tv, what activities they are allowed to do, etc. They are now controlled 24 hours a day year after year, decade after decade. It is simply this: if you do not voluntarily act in the manner proscribe by us, then you will do what we say, every time we say it, all the time, where we have complete control of you every moment of the day. It is no more complicated that this.

07 December 2012

To Clone or Not to Clone

In 2007 the Iowa legislature suddenly determined that human cloning should be a felony. I'm unaware that there was much human cloning activity, but it is possible that the Department of Vital Statistics may have the information of who of our acquaintances are cloned and who actually have parents. I don't recall the impetus for the bill which would subject a cloner up to 10 years in the penitentiary, but I suspect it was religious in nature having in view that only God should be able to create man not other men. Now, of course, this view has no rational basis, but if one thinks about it, there are certain difficulties associated with cloning. For instance, how does probate work? Does a clonee inherit from the adults who raised him or her? Who inherits from a clonee? These are questions that would be what we call in the trade "cases of first impression". Another difficulty that would present itself is obtaining a credit card. I don't know how many times I have had to give as the secret word, my mother's maiden name. Since a clonee doesn't have a mother, this suggests that credit card companies need to change the secret word to something other than your mother's maiden name. This would cost money. Holiday dinners would certainly be different. Most clonees would be eating Thanksgiving dinner by themselves or at the local restaurant; but conversely, many fewer Christmas presents would be purchased saving hundreds of dollars. And since most families have at least one person who they never want to see, that problem would be solved. So there are benefits as well. Bastard, though no longer a pejorative term since half the children born in the United States today are bastards, would no longer be on the bottom rung of the social ladder. As the Indian custom of castes, clonees would be a rung below bastard since bastards have at least one identifiable parent. Bastards would be pleased with this raise in status and should, by all accounts, support cloning. I think we need to send out a state-wide questionnaire to determine how many clonees exist in the state. Once we have identified them, we can assess their intelligence and moral character to determine whether clonees are superior or inferior to the normal uncloned person within the state. It is my view that it would take a rather slipshod effort on the part of the cloner to produce inferior people, but be that as it may, we would have some statistics to work with. And if it were found that clonees on the average were of higher intelligence, more productive, better citizens than noncloned people, we should address our legislature with this knowledge and ask them to reconsider the crime of cloning.

06 December 2012

Paranoia Plus

If you pay any attention whatsoever, you may have noticed that police stations, courthouses, the capitol, government buildings now have gate guards, many with screening devises to check for dangerous implements. This is a relative recent phenomenon, but one that has been gaining speed for a number of years. When you ask about this, the response is universally-security. It is to protect the people who work in these buildings. But let us think about this for a moment; something I often ask. Immediately several questions surface. For one, from whom are the people working in these buildings to be protected? The answer is, from you and me. I must take everything from my pockets to enter the Polk County Courthouse. The last time I was in the Iowa State Capitol I also was required to take everything from my pockets. The federal courthouse is the most difficult of entrance. There one must practically disrobe. I not only have to show my ID to people who know me, but I must take off my belt and shoes too if they contain metal shanks. Personally I find these requirements disrespectful. I am viewed as a potential threat to the safety of the people who work in the building. In many of these buildings, if not most, people are in possession of a vast number of firearms, weapons of all kinds, ammunition in sufficient quantity to hold off a siege. There is significant symbolism in the behavior of the people working for the government; of the government itself. The only conclusion that can be drawn from this behavior is that governments and the people who work for governments are afraid of the public-the people who they are employed to serve. Public places should be places where people want to go; to feel welcome. This is not the case. Every level of security makes the visit to a public place, such as a courthouse, more foreboding, more difficult, less welcoming. As a result the public goes to the courthouse only when required. It is no longer a place to hang out and see what is happening in the halls of justice. The federal courthouse is the most deserted. I'm not sure that one would even be allowed entrance unless one could articulate a specific reason for the visit. What this discussion leads to, especially in regard to the federal government, is that they are afraid of us--you and me. This is not good. Fear easily leads to oppression and repression; one may only look around the world to see how easily governments slaughter their own citizens because they fear them. This is not to say that the federal government will begin slaughtering the citizens of this country, but fear is a continuum; it travels from low to high, from a little to a lot, and it moves up and down. Fear is harmful; it is the cause of irrational behavior and it sets the government apart from its citizens. From being all in this together; it becomes us against them. With the level of security we experience in dealing with our government, the conclusion is easy to reach that the government is not for us but against us. But as with many things, there seems to be no solution. When voicing concerns over building security, the response is normally one of disdain or suspicion; you are either ignorant of life in modern society, or are callous of the safety of those employed to protect you.

05 December 2012

Traveling Arrestees

Its a considerable inconvenience to be arrested a thousand miles from home. As one goes hither and thither across this great country of ours one comes upon various constabularies all alert to the slightest infractions of the jurisdictions one traverses. Occasionally the traveler needs gas, food, refreshment, toilet or some such necessity and stops at a local establishment. It is good policy to pay for what you receive. Some don't and are then chased down, arrested, taken to jail, and required to post bond to continue on their way. Once gone it is difficult to return for the required court appearances, especially if one resides a thousand miles distant. The traveler, now the defendant, believes that the matter should be resolved without a return trip to the scene of the crime. The local judge and prosecutor, depending upon the seriousness of the infraction, believe otherwise and hence, we have a situation. With no defendant appearing in court at the appointed time, a warrant will issue and the bond forfeited. Now if the alleged infraction is not a felony, the warrant will be limited to Iowa-usually. However, this could also be rather inconvenient if the defendant is either an over-the-road truck driver or a frequent traveler on our Interstate 80. Detours can be expensive and time consuming. If, for instance, one is traveling from Chicago to Omaha, traveling around Iowa would add considerable distance to the trip. Of course, the defendant, now the absconder, will be just fine traveling through Iowa as long as he does not come to the attention of the authorities. I suggest he not drive, especially his own vehicle. As defense counsel to the absconder, one is compelled to tell him that the warrant will not exceed the limit of the state boundaries, or he can actually come back to the state and resolve the issue which by this time will more than likely entail spending some time in the county jail. Neither of these two solutions seems reasonable to the absconder who voices the opinion that his lawyer should just be able to take care of it with maybe a fine; that he is working and can not miss work; does not have a car that can go that far; is in the middle of a divorce and can not leave; or is now on probation in his state of residence and can not receive permission to come to Iowa. All very legitimate reasons for not presenting himself to the court, but not sufficient. In cases like these I don't expect ever to see my client again unless he is foolish enough to drive through and again come to the attention of the authorities. I just make sure that the money has arrived for his representation.

03 December 2012

Off to Jail We Go

Having been charged with a simple misdemeanor, not in the presence of law enforcement, the officer has the option of citing the person, mailing it to him, setting a time for the person to appear in court; or in the alternative, the officer can arrest the person and haul them off to jail. The maximum embarrassment, inconvenience, and loss to the person is to arrest him at work in the middle of the day so that all fellow employees are aware, his boss will fire him, and it will cost to pay a bondsman to be released from jail. This is exactly what some police officers will do. It doesn't concern them that you are a single parent working at a crappy job or live in the community with kids in school where the news will soon spread that their parent was hauled off to jail for some heinous crime. You see, if you are charged with a crime, you have instantly lost the respect of all decent people which obviously includes law enforcement personnel. Whatever embarrassment, loss of wages, stranded kids or pets are caused by the arrest, it doesn't matter, you deserve it. This does not apply to all law enforcement, I will be the first to testify. Many police, deputies, troopers, etc. are decent guys trying to do the best they can; but there are some and we know who they are, that love it. Whether it simply be a love of authority, meanness of spirit, or a combination thereof, some will go out of there way to make life difficult for you. They take pleasure in making your life miserable. These are the officers that you most often see in court as well. Simple courtesy will save court time. Just as there are individuals you see month after month, year after year in court, there are officers you see in court week after week waiting to testify on their time off or during hours they should be sleeping. These are the officers that piss people off; these are the officers who would not be in court if they had used a little common courtesy on those they have arrested or cited. It is not unusual to speak with someone in court or hear a case where the defendant had little or no defense but was so angry he fought the charge knowing he will lose. No solution presents itself. The varieties of human character found in the public are found in law enforcement. Mean, petty, and abusive law enforcement has always existed and always will. We have done a rather good job in this country in minimizing it, but here and there it pops up and we must deal with it as we find it. When this happens to you, if ever it does, the most important thing is-don't go down without a fight.

01 December 2012

Brainy Computer

I have recently listened to a computer engineering guru discuss the efforts to build computers that emulate the human brain. If one stops to think about it, this is a terrifying idea. Considering how the average human brain works, or doesn't, depending upon your point of view. Why would you want to build one like it? Hitler, Stalin, Mao, Idi Amin are not too far behind us to understand that there are on this planet brains that should not be allowed to exist. So if we build a computer that is equivalent to a human brain, will it be Nero's or Jesus's. This doesn't seem to be a very good idea and maybe we should rethink it. Representing people charged with crimes, having lived some time on the planet, and personally viewing the efficacy of the human brain in action, it would appear to me that we should limit our endeavors to building computers that purposefully do not emulate the human brain. From my experience, most brains do not act in a rational manner; any form of logic is absent. I know, let's build a computer on crack or one that is intoxicated. This would be lovely-your residence being operated by a drunk computer or one high on meth. It would be interesting, I will say that. IBM had the correct idea in building Big Blue to play chess. Build a computer that does one thing. If you want a computer that is good at Trivial Pursuit, okay. Let us stop there though. I'm not really interested in a computer in my car telling me how fast I should be driving or when to pass or not. I can see now one of those traffic camera's on I-235 sending a signal to the computer in my car automatically slowing my speed to conform to the speed limit or sending a message to the constabulary that I'm texting while driving. Can you imagine a computer with emotion? Just think what it would be like dealing with a pissed-off computer; the lights in your house start blinking on and off because you are up past your bedtime; your shower water turns ice cold because you have been in there too long; or, suddenly your house key won't work. So rather than just assuming we want smart computers, let's think about it.

30 November 2012

Drug War

Of all places, Bloomberg Radio with Charlie Rose carried an interview of two professors discussing the failed war on drugs. One of these professors has actually written a book detailing the racial component of this war. Now that professors are aware of matters that many of us have known for years, others, not in the profession, may take note, but it would be a stretch that politicians would react positively to the news that the war on drugs is simply oppression by another name. The professors have even come to the view that criminal statutes, those specifically dealing with drugs apparently, are just a matter of cultural control. They have also come to the opinion that people branded as criminals are discriminated against the remainder of their lives. The reason that this professorial enlightenment will fall into the void without action is that these are not unintended consequences. They don't get it. The war on drugs was engineered for the express purpose for which it is used--to control large groups of people found either to be superfluous or suspect; i.e., black people, Mexicans, the poor and destitute. The comment was made in the interview that 7,00,000 U. S. citizens are either in jail, prison, on probation, or on parole. These 7,000,000 are told where they can live, who they can live with, what they can and can not do. For those on probation or parole, we call it supervision with the purported goal of making those on probation or parole law-abiding and productive members of society. It matters not a whit whether they are capable of being law-abiding or productive and matters less whether they have any intention of ever being productive whatever that word may mean to those in charge. Here in the land of the free and the home of the brave, someone needs to call up these professors and laud them for their new awareness that people are in prison but at the same time disabuse them of the reason for it.

28 November 2012

Copy to:

Being paid by the state to provide criminal defense to the indigent brings one in contact with those truly in need. Every several weeks I receive a call from a client bewildered by correspondence he has received from me. This correspondence will be a copy of a letter to the clerk of court and a copy of the document I am requesting the clerk to file. The letter will specifically state there is an enclosed envelope to return a copy of the document showing the file-stamp. Of course, in the envelope to the client are merely a copy of the letter and the document to be filed--no envelope. The client will call to tell me that he is unable to send me a file-stamped copy because there was no envelope; or to explain he does not understand what it means to file the document he is holding in his hand. My usual response to these queries is to ask the client to whom is the letter addressed. Approximately one-half the time, the client does not understand the question having never written a letter nor addressed an envelope apparently. It is difficult to understand this level of ignorance although I should be properly inured to it after this many years representing those I am appointed to represent. It must be explained, in detail, that the letter was not sent to them to do anything with other than to know that it was sent on their behalf. Once the concept of "Copy to:" is understood, an extended explanation follows as to the reason for the call which is a reiteration of the conversation gone before. T'is all very maddening but does reinforce the fact that these people are totally unable to deal with life as we know it. Without an attorney paid to watch out for them, they would have an even worse time of it than they do. To them court and criminal charges are just one more thing in their lives they must endure. Court appearances have little significance to them above visiting with their friends and associates who are probably also in attendance in court on criminal charges. Jail actually is of benefit to many which will enrage many a decent citizen, but this story is for another time.

27 November 2012

Legislative Intent

The term "legislative intent" comes absurdly close to being an oxymoron. The Iowa Supreme Court in a recent case, State v. Adams, 810 N.W.2d 365 (Iowa 2012) gives us in one short paragraph the methods by which one may ascertain the intent of a statute. The process seems rather complicated. It would seem much easier to begin with the assumption that the statute is superfluous as it most likely is. The beginning premise of any analysis of a statute should commence with the idea that there are too many of them. The Iowa legislature, as with all legislatures, work under the assumption that their job is to pass as many laws as possible in the short time allotted them. A legislator, one who has been elected to serve in a legislature, by those who bother to vote and who have never read a statute nor would understand it if they did, is presumed to have a modicum of intelligence. He, or she as the case may be, fancies himself to have a mandate to address the complaints of his constituents. These mandates derive from newspaper headlines or the disapproving tone of television news anchors trickling down to the voter transforming themselves into moral outrage or general opprobrium. These outraged voters who think that the local television anchor has actually thought about anything call up their representative or senator and demand that something be done. The legislature in turn agrees that something must be done about whatever it is that is bothering his constituents and sets about proposing legislation to end the practice being complained of. The intent of the legislator is to remain in office and if it means passing ridiculous and superfluous legislation, so be it. Whatever intelligence a single legislator may possess, disappears into the abyss when joined with that of other legislators sitting in a group to discuss the upcoming proposals. Some will be in favor of a particular proposal and some will be against it; none will have read the proposed law but will vociferously support or disavow it regardless, depending, usually, on party affiliation. A perfect example of legislative superfluity are the driving while intoxicated laws. It has been determined that driving while intoxicated is a serious matter to be quashed where all possible. It makes no difference whatsoever that driving while intoxicated is a form of reckless driving already on the books and a statute so subjective in nature that it can form the basis of about any arrest law enforcement wants to make. The prohibitionists have reincarnated themselves into MADD. I can almost guarantee you that any given member of MADD is on the cell phone before leaving the driveway on the way to McDonald's drive through for her morning latte tailgating some elderly person on the interstate while yelling at her kids in the back seats of her minivan between quick glances in the mirror to check her makeup. So much for reckless driving. The courts are quick to find a law constitutional; they have a vested interest in not abusing legislative bodies. Legislatures give them money; pay for their retirement. It would not do at all to irritate those who fund you. Ergo, the laws pile up, one on another, until we are buried in them. There is no incentive to find a law unconstitutional which makes the interpretation of statutes easy indeed. So when the courts tell us what is required to interpret a law they are really telling us to grin and bear it.

26 November 2012

Dead Defendant

I have the case of a dead defendant. There are currently two charges against him one of which is a felony. The prosecutor is indicating that he will dismiss the charges. I'm not sure but that we shouldn't rethink this. Why let a dead person get away with it? Isn't one of the purposes of punishment to scare the crap out of other people so they will not commit the same crime. Isn't the cost of defending oneself substantial. Defense counsel needs to be paid and there are various costs involved including the per diem for the jurors who must take time out of their ordinary affairs to hear the case. The state is just as likely to be reimbursed for court costs from a dead person's estate as from a live defendant. Death is simply too simple; the escape from due process and punishment should not be relief from the criminal justice system. Too much effort, time, and money has gone into the prosecution of a defendant to allow him to escape the consequences of the criminal charges by reason of death. His next of kin, his children and wife, all those near and dear, should be warned that death is not an escape; it is not the easy way out of one's troubles. The law is inexorable; it applies to the living and the dead. Criminal behavior must be punished if it need follow a person to the grave. Defense counsel should be ordered not to mention the defendant's death at trial before a jury; it is not the business of the jury to know the defendant is dead--it's not relevant and it could cause the jurors to believe that the court is wasting their time. Why try someone who is dead, they might ask. The court does not have the time to explain every little thing to a jury panel. The jurors are in court to determine the facts, not the punishment. In most circumstances the facts will be uncontroverted, the prosecution will not be required to rebut anything the defendant might say on his own behalf, and as far as the jury would know, the defendant simply decided not to show up for his own trial. They can bring in a verdict of guilty without having to look at him at counsel table when the verdict is read. All very nice and tidy. So, I say, we should think this through more thoroughly. Consider the benefits of trying dead people for crimes they committing while living. Sound reasons exist for continuing such prosecutions.

24 November 2012

Pardon the Turkey

A bulletin was released announcing President Obama pardoned the White House turkey. This act of compassion was made to give us the warm and fuzzy feelings required for the holiday. Among the myriad of things we are to be thankful for this holiday weekend, we may add our thanks to the President for allowing the White House turkey to strut another day. It is a symbolic gesture; a gesture to remind us once more that we should be thankful for what we have and not to complain about what we don't have. I suggest to the President that he might direct his compassion elsewhere. He has the power to pardon several million people wasting away in prison; some for life, others for years until they are too old and decrepit to do anything other than sit once they are released. This would be an act of courage for a hue and cry would ensue from the public denouncing such an act of compassion as weakness and morally reprehensible. In the mind of many it is a perfectly reasonable exercise of executive power to release the White House turkey from its death sentence but a man from his cage not so much. The mind of the public is a very fickle thing; it moves like air currents, soft and strong, from one direction to another, all within minutes. The president of the United States is in a position where he can actually effect a change in public opinion. Now that President Obama is not required to stand for reelection and say simply what people want him to say at any given moment, he might actually do something that will change the perception of the public toward this vast incarceration complex that we have built here in this home of the brave and land of the free. Rather than pardon a turkey maybe he should consider pardoning some people. They would be very thankful; their families would be thankful; their children would no longer be required to drive hundreds of mile to visit their fathers or mothers behind stone walls and razor wire. The republic would not disintegrate. If the president of the United States were simply to state that pardoning a person from prison is the thing to do, the right thing to do, and he said it often enough, to many it would indeed become the right thing to do; and, more importantly, we might accomplish something that would actually be compassionate.

23 November 2012

Suicidal Fires

The Iowa Supreme Court has recently announced that fire by suicide is not very helpful. Normally, if married, both spouses are insured or are what are determined to be, co-insured. Presumably the purpose of house insurance is to provide money in the event it burns down. But let's not be too ready to presume. We buy the insurance and then months later actually receive the policy so that we can actually see what it says; and secondly, we don't read it anyway. We just presume that if anything happens to our house, we will be covered. Not so fast, says the Iowa Supreme Court. Presumptions can be dangerous. The Court in Postell v. American Family Insurance has recently decided that if one spouse sets the house on fire to commit suicide, the surviving party can't collect the insurance on the house. Whether the spouse attempting suicide succeeds or fails doesn't appear to be an issue. Regardless, the non-suicidal spouse is out of luck. This decision certainly benefits the insurance companies and it is uncertain how one is to protect oneself financially from a husband or wife who wants to off themselves other than to ask them to do it in a way that doesn't cause financial ruin to the survivor. In Postell, the bank with the mortgage was paid, but the court doesn't delve into the appropriateness of this as opposed to the Mrs. getting nothing. Apparently the bank was not an insured even though it was paid in full. I suspect that we now will each be required to have our own insurance policy-no more co-insured stuff. This applies to any situation where more than one person owns a residence married or no. If the person you lives with gets into a twit one day and trashes the place, you are out of luck. No money for you! It would be interesting to know, and I do not, whether two people can each have their own insurance policy on the same property. If not, too bad; if so, your insurance agent is now able to have two commissions rather than one and insurances companies are able to sell two policies thereby doubling their income. It looks like everyone is a winner except the homeowner.

21 November 2012

Common Rumour

My fascination with Chief Judge Bouget in his The Manner of Procedure of a Judge in a Case of Witchcraft continues. There is much discussion on the use of torture; when it is appropriate and when not. In the case of common rumour, Judge Bouget believes that an additional indication of witchcraft must be present before common rumour would be sufficient grounds to torture the suspect. The good judge did not particularize these indications apparently determining, as we say today, the matter must be decided on a case-by-case basis. Common rumour continues today in our use of opinion and reputation evidence as found in Rule 5.608 of the Iowa Rules of Evidence. Another example of the law's strict adherence to traditional practices and methods. The problem, as Judge Bouget specifically states, is that proof is so difficult in cases of witchcraft, due I suppose to the craftiness of witches. And since proof is difficult, confessions are very useful often being the only substantial proof available in cases of witchcraft; and the most effective method of obtaining a confession, is torture. Here we have another long and verifiable tradition in law that knows no jurisdictional boundaries-the establishment of guilt by confession. As all practicing criminal defense lawyers know, today, in our own time, the vast majority of criminal cases are resolved through the confession of the defendant. In 1619 the order of events were as follows: first we have common rumour, then we have torture and a confession, then the trial, lastly the punishment which for many is burning alive. A good reputation appears to be considerably convenient in a charge of witchcraft or any of the more modern crimes introduced from time to time by our legislatures. A bad reputation brings the attention of the authorities-the eye of the law is on you. Law enforcement personnel will know the car you drive, will know where you live, will know the incidence of short-term visitors at your residence, will generate trash-rips to check your garbage, in other words; keep you under surveillance. Sooner or later the person being watched, because of his bad reputation, will commit any one or more of the thousands of crimes now in existence, be hauled to jail, and taken before the court for punishment. In all likelihood the defendant will have confessed. Physical torture, not being commonly accepted nowadays, we set a bond which can not be meant. The defendant loses his job, his dog or cat starves to death, his landlord does not get his rent, his electricity is shut off, his wife and children have no money for food, he has no access to his disability check, he can't pay his cell phone bill, his associates take all his property. The only method by which the defendant may escape these inconveniences is to plead guilty, received probation or time served, and get out of jail. The authorities have prevailed once again.

20 November 2012

Pre-puberty Witches

I recently picked up a small volume by Henry Boguet titled An Examen of Witches edited by Montague Summers. A marvelous little book meant to instruct judges on how to properly prosecute witches. As with most prosecutions and punishments, an effort needed be made to standardize as much as possible both the prosecution and punishment of those before the court. In this instance, the subject is the prosecution and punishment of witches. Included in the above-referenced volume is The Manner of Procedure of a Judge in a Case of Witchcraft by Boguet. Article LXII specifically deals with the punishment of child witches, both those reaching puberty and those who have yet to reach puberty. Adults found to be witches, it must be noted, were either burned alive or where mitigating circumstances were found, strangled first and then burnt. Boguet believes, as we still do, that children should be given special consideration-that some mercy should be granted them. Boguet rejects the notion that child witches should not be put to death; but does impose the following caveat: only if the child acted with malice should the usual penalty apply. If it is found that the child acted with no malice, Boguet believes some more gentler form of penalty is required, such as hanging. The atrocity of the crime is why the ordinary provisions of the law are not applicable. Witchcraft is the most heinous of crimes. Once Satan has captured an individual, escape is nearly impossible therefore it is better to kill the children rather them rather than to allow them to remain living "in contempt of God and to the danger of the public". This logic, of course, is unassailable. We, those of us living in the 21st century United States have adopted this logic for the purpose of prosecuting and punishing sex offenders. Sex offenses are the most heinous of crimes. Once a sex offender always a sex offender as it is extremely unlikely that a sex offender can ever be rehabilitated; ergo, he remains a danger to the public and must be controlled and monitored throughout his life with either imprisonment or with constant supervision. I, as a lawyer, find it comforting to know that our jurisprudence has this history and tradition on which to draw for precedent. I highly recommend this volume to all those interested in the proper administration of justice. It is published by Dover Publications, Inc. in 2009. It is believed that the learned Henry Boguet published the original volume in 1619 as Discours des Sorciers. He was a magistrate of Burgundy. According to the editor, Mr. Summer, his book was used by many of the local parliaments to enact appropriate legislation.

17 November 2012


Knock-and-announce is a term created by the courts to describe the requirement set out in 808.5 of the Iowa Code of law enforcement to announce themselves before they come busting into your house to search for some contraband or illegal substance. Once a search warrant has been obtained from a judge, the entry team gathers and those who will be participating in the execution of the warrant don their ninja outfits, arm themselves with what weaponry they deem necessary for their own protection, grab the battering ram to smash in the door, and drive to the place where they believe criminal activity is afoot. Searches are expected to be reasonable. Reasonable searches are mandated by both the constitution of the United States and the constitution of the State of Iowa the purpose of which is the idea that we all should be safe and secure in our own homes. The question is, of course, what is reasonable. We have created what are called entry teams. These teams are comprised of members of various law enforcement agencies who throughout their lives have ingested far too many TV cop shows and have convinced themselves that people who commit crimes deserve no respect. When law enforcement shows up at your door to serve a search warrant and knock and announce their purpose, you as a resident of that dwelling are required to give them immediate access. Here we have another one of those terms that may mean one thing to you as the home owner and another, entirely different meaning to those executing the warrant. To you as a home owner, immediate may very well mean the time required to get up out of your chair, walk to the door, see who is there, and open it. On the other hand, the term immediate to the entry team means instantly. To law enforcement it doesn't matter if you might be on the john, or asleep, or putting the kid to bed, or at the other end of the house. If the door is not opened instantly, wood and glass go flying over the floor, men in their ninja outfits are running through the door with guns drawn yelling at you to lay on the floor. Two reasons are given for this sudden and frightening entry into your house: (1) you may have time to run to the place where you have stashed your stash and flush it down the toilet and (2) officer safety. The second reason given is my personal favorite. Whenever questioned about the suddenness and force used in an entry of a home, the response is normally officer safety. This is the mantra, the rationale, for destroying your door. What the reason is, which would never be admitted, nor could it be, is that it is much more fun. Pulverizing doors and scaring the crap out of people is so much more fun than having some known criminal compliantly opening the door. Police work is really boring when you think about it and when there is a chance of a little excitement, most officers jump at the chance.

16 November 2012

Why Do Powerful Men Have Affairs?

Because they can.

Emotional Intensity Disorder

I heard a new one yesterday at our criminal defense seminar--emotional intensity disorder. Whenever you hear of one of these new diagnoses, you wonder if it fits yourself. Now I have given this some thought and it appears that it is sporadic. It only appears occasionally such as when one gets hit by a car; one's house is burnt to the ground. There are other times when it peaks around the corner and makes an appearance. Examples of this would be when someone does something really stupid in your presence or your dog bites the neighbor. As with so many mental health diagnoses, it must occur on a continuum whereby a small amount of emotional intensity would not be considered a disorder, but a very large amount of it would be so considered. I expect those who have discovered this disorder have determined what the appropriate amount of emotional intensity should be. Whether this is statistically derived I can not say. I understand that the DSM-V is in the works and it will most assuredly give us the proper guidance as to what level is appropriate and the appropriate drugs to alleviate it. Once it is officially recognized, such as inclusion in the DSM, insurance companies will be pressured to recognize it as a legitimate mental disorder and pay for the treatment of it with the result that once again our health insurance premiums will rise for the benefit of those so diagnosed. Self-treatment is a threat and should be taken seriously. Having lived through the 1970's and smoked a little marijuana myself, I have first hand knowledge that marijuana works quite well in the alleviation of emotional intensity. We can not allow self-medication nor suggest that substance abuse is an answer to the problem of this new disorder. Self-help would be anathema to therapy and the pharmaceutical and insurance industries. Jobs and the GNP are at stake.

15 November 2012

Can You Prove It?

The question is not whether your client did the act for which he is being prosecuted by the State, but whether the prosecution can prove it. Many defense attorneys don't ask themselves this question. Contrary to the lay and expert commentary alike, the criminal jury trial is not for the purpose of finding the truth; the purpose of a criminal jury trial is to establish proof that the defendant did the act for which he is charged. The common cry is the failure of the jury system if the person who did it, is found not guilty. This is not a sign of failure but of success--the government must prove he did it and if they can't do that, too bad for them. One effective method of analyzing the probability that a defendant will be convicted if he goes to trial is the strength of the prosecution's witnesses. The prosecution must often rely on very unreliable people to prove your client's guilt. There are several uncertainties involved: Did the potential witnesses tell the cops the truth when giving the initial report? Will the witnesses even show up for trial? Will the prosecutor be able to find the witnesses to subpoena them? Will the witnesses be believable if they do testify? Many a case has been dismissed because the answer to one or more of these questions has been no. I am aware of defense attorneys with the view that if the defendant did what he is charged with, he should plead guilty to it or at least to a lesser included offense. Apparently we are all required to accept responsibility for our acts whether this acceptance will land us in jail or not, whether we will be required to pay a significant fortune in fines, costs, and attorney fees before we will be able to drive a car again legally. This is not representing your client; this is not the function of a criminal defense attorney. Our law schools teach how to try a case to a jury; but they don't inculcate in their students the idea that they should actually try a case now and again.

14 November 2012

The Criminal Justice System

I'm in Mahaska County yesterday, Oskaloosa, and waiting for a sentencing for which, I later learned, did not require my presence if I had simply filed a document stating that I waive my and my client's presence. While sitting I am listening to a discussion between a defense attorney and the probation officer the purpose of which seemed to be to determine what the defendant would stipulate to for purposes of establishing a violation of probation but with the result being the same, the defendant would be found to be in violation of his probation and be sent to prison. The result was apparently a matter agreed upon by the defense counsel and probation officer. The defendant was not present for this discussion and the county attorney handling the matter was flitting about concerned with other cases. There are several things wrong with this picture. The probation officer is not the person who decides whether a probation is terminated sending the defendant to prison. The probation office makes a recommendation. The second issue that presents itself is the assumption that the county attorney handling the matter will do what the probation officer wants him or her to do without question. The third issue is the presumption that the judge will follow the recommendation made by the probation officer as presented by the county attorney. This leaves the defense attorney with the job of cajoling with the probation officer over the fate of the defendant. We have evolved into a system where attorneys are part of the production process rather than an impediment to it. Our job as criminal defense attorneys is not to make life easier for probation officers, prosecutors, or judges. Our job is to represent our clients. The so-called criminal justice system requires those engaged to work full-time. They are very busy; crime has been commodified. Difficult defense attorneys cause time, effort, and trouble for those in the system who are overworked and over-stressed and can't afford to be spending much time in the courtroom arguing about the future of some ne'er-do-well who can't follow directions. Criminal defense attorneys hold the key. If every case went to trial; no one agreed to plead guilty to anything; the whole system would break down in one day. The criminal justice system as we know it would implode. All the laws, all the crimes enacted by the legislatures, the county board of supervisors, the municipalities, all would be for nought. There is no other profession in the world with more power if used. I have made it my mantra that I like trials, I would like to have more trials, and I am disappointed when my defendants take a deal. This has a salutary effect on prosecutors. If a prosecutor understands that the defense attorney he or she is dealing with has no interest in arguing about a resolution to a case, no interest in innumerable worthless telephone squabbles over a sentencing recommendation, the defendant will be well served. And from what I have always understood, that is our job.

12 November 2012

The Fiscal Cliff

One can not listen to talk radio for 30 seconds or turn the page of a newspaper without hearing or seeing the term "fiscal cliff". This term is a sequel to the phrase "having said that" and the word "resonate". It is a meaningless term which explains its continuance use. Apparently we have reached the abyss and are peering over the edge in terror contemplating its immeasurable depth and certain death if we slip. The use of term "fiscal cliff" is meant to instill fear in the general public and bring out the vote of those who continuing to believe that the financial practices of the federal government somehow equate with those of an individual. The last I was aware, it was a felony for me to print money. One pundit has exclaimed that each of us are now $51,000 in debt and our children will be on the hook for this. This figure was presumably obtained by dividing the trillions in the national debt by the number of citizens of the United States (not counting illegal immigrants who I believe should bear some of this burden as well). I keep a pretty close I on my own balance sheet. I have the rudiments of accounting and can work my way through a financial statement and have for some years now been able to track my income and expenses and file a correct tax return. Nowhere on my financial statement am I able to locate this debt of $51,000. No one has presented me with a bill for that amount nor do I expect anyone to. I feel the presence of no cliff nor am I aware of any for several hundred miles. I do not feel imperiled. The "fiscal" portion of this term does not relate to me in any respect. The term is limited to government monetary policy, revenue, expenses, and taxation. I personally do not have a "fiscal" policy nor am I intending on developing one. I try to mind my own business and I think the federal government should mind its own affairs. The FBI with its almost unlimited resources should put out a wanted poster on the person who first used the term "fiscal cliff" Any person who can massacre the English language and then allow it to pervade the airways and news print has committed some kind of crime and should be prosecuted. Once this current felon has been imprisoned, they should turn their attention to the person who first publicly stated "having said that" and "resonate". Possibly prosecution would deter the use of meaningless terms to discuss important subjects. Neither the people who use the term "fiscal cliff" nor the people who hear it used have any notion of what is the issue, or even if there is an issue. A little clarification could actually be beneficial.

11 November 2012

Moral Decay

Cal Thomas explains in his opinion piece in the Sunday's Des Moines Register the reason for the Republican loss on Tuesday--moral decay. This is altogether consistent with prevailing opinion of Fox News. Simply put: America is going to hell. We have turned our back to the Bible, rich people, and self-reliance. Romney was correct about the 47% of Americans who are takers instead of makers. Mr. Thomas proclaims the victory of the Democrats a result of a "self-indulgent, greedy and envious nation". There is a chasm between Republicans and Democrats. It is certainly laudatory to be rich, self-indulgent, greedy, and envious, but to be poor, self-indulgent, greedy, and envious is a sure sign of a poor education, poor character, and government handouts. Being a registered Democrat, I am swimming in self-indulgence. It is all around me and difficult to escape. Many of the people that I associate with on a daily basis are also Democrats. It is difficult for me to rise above this milieu of greed and envy that I must immerse myself in to make a living. I find myself envying, and I try to correct it when I realize I'm doing it, people who are eating steak while I am eating hamburger. I am tempted to feel sorry for myself when I hear of people taking exotic vacations and I am constrained to driving to Mt. Rushmore. The answer, of course, is prayer in the schools, the repeal of Roe v. Wade, and vacations in Branson. Michelle Bachman made Romney promise that he would not require Mormon prayers in schools which alleviates any concern of the fundamentalists. The demise of Planned Parenthood would finally eviscerate Roe v. Wade, and the stockholders of Winnebago would be rewarded with a tax credit on recreational vehicles. According to Cal, not only have the Founding Fathers been rejected but the Greatest Generation has now been repudiated. World War II was fought to save decent Americans; the right to enjoy the riches inherited from their fathers; the ability to make a killing on Wallstreet; the right to sing God Bless America before every athletic contest. These are inalienable rights that must be protected at all costs. As he points out in his opinion piece-the enemy is now within.

10 November 2012

Founding Fathers

Who were these guys anyway? The phrase "Founding Fathers" seems to be endemic in political pronouncements, judicial decisions, and PBS specials. Some pundit is forever stating that the founding fathers will roll over in their graves if some piece of legislation is passed or not passed or if the current court does not follow the precepts set out by them when our country was formed. This is all rather mysterious to me. No one to my knowledge, as imperfect as it is, has described or enumerated just who these people were. I have recently learned that the term "Founding Fathers" is first ascribed to Warren G. Harding in his inaugural address of 1916; not one of our more learned for memorable presidents. The United States of America did not begin operation until 4 March 1789, a considerable time after the revolutionary war. It is interesting to note that we celebrate independence rather than the monolith created in its wake. The Articles of Confederation were proclaimed on 1 March 1781. March seems to be a particularly popular month. The Articles of Confederation in retrospect doesn't seem such a bad idea. Maybe we should have stuck with it. Iowa could in most respects be an independent country and we could have our own founding fathers not some characters living in Virginia, New York, Massachusetts, or some other east coast state who really know nothing about corn or soy beans and wouldn't know a John Deere from a Case IH. The television analysts are now in full tilt explaining how and why Barack Obama was reelected president of the United States. It doesn't take much intelligence to figure this one out. Look at the map showing what areas went Democratic and which went Republican. The Democrats won urban American and the Republicans won rural America. Less than half of Democratic Congressmen are white males but almost 90% of the Republican Congressmen are white males. Is it any wonder that the Republicans rely on the "Founding Fathers" for their inspiration all of whom were white males. One only needs to acknowledge that the "Founding Fathers" were all white males and that people of color and women were neither consulted or allowed an opinion and certainly could not vote when these founding fathers were doing their work. Is it any wonder that the new minority majority in this country really doesn't much care what the founding fathers said or did? I can just imagine what Indians, African Americans, Asian Americans, and Mexican immigrants think about about those guys. Not much. And we have the Daughters of the American Revolution living in never-never land celebrating some distant connection with Betsy Ross. So my suggestion is that we get over this founding fathers crap and get on with the business at hand.