31 October 2012


After living through another presidential election campaign, I am afraid that I must join the Republicans in a call for an end to the funding for public television. The idea that there should be television channel available to the public which presents fact rather than opinion is antithetical to sound policy and contrary to those of us who rely on the ignorance of the general population. Without an ignorant population we would be in a real mess. People would ask questions which are always anathema to the goal of a sedated citizenry. The organic produce industry would disappear as quickly as it arose; biblical scholars would be abused; Wolf Blitzer could possibly be pummeled in the street. As I said it would be a mess. We must encourage our friends and neighbors to watch Fox, CNN, or MSNBC depending upon their political persuasion. If they want to to change one canned opinion for another, have an epiphany of some sort, changing from one of the three channels to another should suffice allowing them the satisfaction of believing they have given some thought to whatever opinion they may now hold. A corollary to ending the funding for PBS is the mandate to berate our educational system for producing dunderheads and numbskulls. We must maintain the constant barrage of disillusionment with our public school systems. This has two salutary effects: first, it maintains the illusion that we want an informed and thinking public, and secondly, it allows us to produce more MBA's who with a master's degree, believe themselves to be educated having learned to read an organizational chart of a large corporation. Many of the children that I observe upon graduating from a public high school can barely speak English let alone a second language and writing anything beyond their age and whether its a nice day or not is utterly beyond their capacity. I may be alarmed unjustifiably and remain hopeful that all is not lost. Few people I speak with have ever heard of PBS let alone watched it. The same applies to 60 Minutes which occasionally offers something of substance. Neither can compete with the inanity of Nickelodion or the Disney Channel to which our children watch each evening after a stimulating day at the local public school. We may be safe whether PBS stays on the air or not; but let's not take the chance. Encourage your congressman after this next election to cease the funding for anything that even hints at an objective view of the world or that contains facts on which to base an informed decision for whom to vote.

30 October 2012

A Growth Industry

Looking at crime as a national disgrace or a plague upon us is wrong, very wrong. Crime is a major contributor to GNP. It is a vast industry reaching from coast to coast employing hundreds of thousands of people. I can't say that I have come across statistics on the employment from crime, but it must be a significant percentage of the total economic activity of the country. This alone should make us stop and think about the attitude we all seem to have about crime. The prevailing opinion is that we should do whatever we can to stop crime; to encourage all citizens to be law abiding and productive members of our society. This, of course, is rubbish. The people who are involved with crime and make their living from it numbering in the hundreds of thousands if not millions need more crime; their livelihood depends on it. Let us enumerate some of the occupations that would be affected if crime were suddenly to disappear. Jailers and prison guards would be the first standing in the unemployment line. There are a vast number of these folks in that we have several million of our citizens in jail or prison. In addition, if no one is in jail or prison, the jails and prisons stand empty, a waste of valuable resources. And let's not forget probation and parole officers. Since we have tens of millions of our citizens either on probation or parole, those monitoring their behavior and directing their activities will no longer be employed. Then we have the people paid to arrest those committing crimes; paid to ensure us as citizens do what we are told. These include city police, county sheriffs, highway patrols, departments of criminal investigation, departments of public safety, clerks of court, DNR officers, the FBI, DEA, ATF, postal inspectors, secret service, ICE, the border patrol, U.S. Marshals, and others I have either forgotten or never heard of. These people would not have jobs; they would be unable to send their children to the colleges of their choice, buy cars, or have a nice house. It would not be pretty. And don't forget the counseling industry. We have anger management classes, drunk driving classes, sex offender treatment, substance abuse counseling, cognitive training classes, outpatient treatment, inpatient treatment, halfway houses, AA, NA, and a host of therapies involving psychologists and social workers plus psychiatrist for medications. The demand for these services would approach zero without crime and the courts. Criminal defense attorneys, such as myself, would be out of work as would be the prosecutors and many judges. Without crime, the courtrooms would be empty most days. This brings us to the title of the piece-"A Growth Industry". We, who are involved with crime, should not despair for the legislators are there. Each year more crimes are added to the laws of each city, county, state, and the United States. Each year there are more people in the United States. Consequently each year there is more crime; the courtrooms are fuller, and all of us who are involved in crime have more to do. It is a wonderful situation. When I make the statement to someone that we need more crime, they take it as a joke or an irreverent comment. Not so. I am perfectly serious. Crime is good for me, good for the State of Iowa, and good for the country. Its time we changed our thinking on the subject.

29 October 2012

Sex Crimes

I reacted in horror when I discovered that the crime of public intoxication was not considered a sexually motivated offense under 692A.126 of the Iowa Code requiring a person convicted of it to register as a sex offender thereby warning the public of the person's proclivities to think about sex. It appears that the Iowa legislature enacted 692A.126 in 2009 adding 23 crimes for which a person is required to register as a sex offender. These crimes specifically require the person convicted, if having any sexual thoughts while committing them, to register as a sex offender. These 23 crimes are in addition to the 89 crimes for which a convicted person must register as a sex offender whether he or she was having sexual thoughts or not. They simply are presumed. Public intoxication must have been an oversight when the Iowa legislature was considering what crimes to include in 692A.126. the major reason, if not the only reason, to become intoxicated is to think about sex. It is a scientifically proven, well-known fact that intoxication causes a person to lose his or her inhibitions, i.e. to think about, to act upon, and to engage in sex if possible. When one is drinking heavily at a social function one is eyeing lecherously the married woman or man standing nearby or with which one is engaged in conversation. It can't be helped. Normally if one appears in public in an intoxicated state, one has been thinking about sex, engaging in sex, or wishing, at that moment, he or she was having sex. This is why it is difficult to understand how the legislature could have missed such an obvious crime to include in the list of convictions for which one must register as a sex offender. I believe it is imperative that any of us who care about the safety of our children should contact those running for the legislature now, before the election to determine where the candidates stand on this issue. We must voice our concern and obtain a positive response from those who intend to represent us in the next legislative session.

28 October 2012

Local Manufacturing

For decades now the movement of manufacturing to Mexico and overseas has been a phenomenon decried both nationally and locally. The public wringing of hands of politicians, the wailing of the labor unions, the continual editorializing in the papers, and the obsessive discussions by the television talking heads all point to the demise of America as a result of the loss of jobs resulting from the movement of manufacturing out of the country. And yet Congress and the state legislatures are often responsible for this loss of jobs. A perfect example of this is methamphetamine. The manufacture of methamphetamine was a home grown industry. The ingredients required to manufacture meth are easily obtainable. The process by which it is manufactured is easily learned and the equipment necessary in the manufacturing process is readily available. Making meth was a source of income for many who had no income or were otherwise unemployable. The retail end of the business produced additional income for others in the supply chain. On the demand side, the market was never fully satisfied. I will admit things slowed considerably during the recession. The slow down in the construction industry has been a significant factor in lower demand. When one realizes that a very large percentage of roofers, brick layers, concrete workers, and others associated with construction and residential repair use a little meth in the morning to get the day started and again a snort or two after lunch to fight the early afternoon blahs, one realizes the effect on demand. But the demand is there and is now growing again but the ability to manufacture meth and been terribly restricted and has now moved to Mexico as has so much of our manufacturing. The particular factors in the loss of these jobs is due totally to our various legislative bodies. First and foremost if you are caught by the authorities making meth, you go to prison; often for many years especially if the federales capture you. Getting high is considered a sin and therefore criminal in all jurisdictions of this country. In addition, it is now difficult to obtain the ingredients for the production of meth. The purchase of pseudoephedrine, a necessary ingredient, is now monitored nationally so that law enforcement can learn who has purchased it anywhere in the United States; and in Iowa as an example, a person is limited in the amount of pseudoephedrine one can purchase in any given month. If you purchase pseudo for someone planning on using it to make meth, you are committing a felony. Another traditional ingredient, anhydrous ammonia, used by farmers as fertilizer and traditionally easily obtainable by those desiring to make a little meth is now required to be under lock and key and the possession of it with the intent to use it to make meth is also a felony. It is difficult to explain the container of anhydrous ammonia in your garage as fertilizer for your garden, especially since most of the people inclined to make meth are not avid gardeners. Consequently anyone possessing it without a tractor in the barn can expect prison time. This example illustrates once again the mendacity of our legislatures. They will tell you that meth is destroying lives and must be got rid of entirely and on the other hand they bemoan the loss of your job to poorly paid Mexican peasants. To find the good stuff, called ice, one now has to find an importer from Mexico. Often this importer is an illegal and shouldn't be here in the first place. Not only do we not profit from the manufacture of meth, but we also lose the wholesale markup to illegals. This is an unacceptable situation especially in rural areas where the population continues to dwindle for lack of jobs. Those of you who are unemployed or unemployable should be contacting your congressman or senator, or locally, your senator or representative to begin reversing this onslaught of legislation restricting you from gainful employment.

27 October 2012

Illegal Immigration

I have stumbled upon a solution to the illegal immigration problem. Although this will not be considered a solution for those of us who believe the horde of Mexicans and others speaking dialects of Spanish are destroying the very fabric of society. But for those who use cost as the rationale for their xenophobic views, I may have a solution. For every Mexican who crosses the border with the intent to stay and suck up our precious resources to maintain themselves and provide for their children, we send back one of ours. A quid pro quo. When Jose gets stopped for driving without a license, rather than throwing him in jail or a detention pond waiting for deportation, we go down to the local jail and grab Joe who has no job, doesn't want one, and couldn't hold one if he had it; give him a Spanish phrase book and a ticket to Mexico City and wish him bon voyage explaining to him as you do that this phrase is French not Spanish and he probably ought to review his phrase book while on the plane. This solution would have several benefits. It would stabilize the population which seems to be an issue with some. More importantly it would add one person willing to work for one person unwilling to work. The probability is that Joe, who will be now living in Mexico, is on disability payments which can stop, who does not pay into social security, is a burden on the local emergency room for health care, and is continually in court for minor offenses such as public intoxication, disorderly conduct, or other offenses disrupting the peace and tranquility of our neighborhoods. Jose will be given Joe's social security number and for all practical purposes will now be Joe. Jose will not be disturbing the peace of suburbia for he will be living in the local Mexican ghetto only appearing when there is work to be done. And if he does get drunk and disorderly, it will be in the ghetto where decent folks like ourselves will not be required to witness it. Jose will actually pay his rent to the local slum lord, buy a car no one else will buy, and support the new Mexican grocery on the corner. Everyone is a winner except, of course, Joe and he doesn't count.

26 October 2012

Immigration vs. imprisonment

While preparing for the day this morning the thought, or I should say, question occurred to me whether there is a correlation between the people we admit to this country and the people we throw away. You may ask, "What do you mean by the term throw away?" Our federal government throws away thousands of American citizens every year by imprisoning them often for many years. If you sentence a 40 year old man to 20 years in the federal penitentiary, upon release he will remain a tossed-out old man surviving the best he can until he dies. On the other side of this equation we have the federal government setting immigration quotas allowing a certain number of people admission to the United States with the idea they will remain permanently, have children, and multiply. These people are screened for admission. Whether or not the requirements for admission are set in stone or change from time to time, I can not say. But my question is whether or not there is a correlation between the immigration quotas and the number of people we throw away. This would make a good study. I presume there are sufficient statistics to make some sort of analysis. The irony is that the xenophobes that inhabit many sections of the country also constitute the portion of the population most supporting of the imprisonment of vast numbers of their own countrymen. Their position is to get rid of the Mexicans and all those who don't do what they are told, i.e., criminals. The thought process by which this conclusion is reached escapes me. The possible genesis of it may be in the idea that wealth (prosperity) is a fixed sum and the more people there are the less anyone person has. If this is indeed the source of the prevailing attitude, the ignorance it reflects is stupendous. This is most likely the case and is not a mystery. P. T. Barnum not only voiced his opinion of the stupidity of the American public, he proved it.

17 October 2012

The Attorney's Fault

Often when a warrant issues for a defendant for failure to appear, it is the attorney's fault; or so defendants are inclined to think. After all, it must be--"I would have been in court if you had told me I was suppose to be there." This is one refrain I hear. There is a notice for court appearances for the hearing impaired on the bottom of many court forms. Unfortunately this is for the hearing impaired, not the listening impaired. In my practice, the defendant will have heard the judge verbally tell him his next court date, I will send him a copy of the order setting the date and time, and will have my secretary call in advance of the date to remind the defendant to be in court at the designated time. If the defendant has changed residence and run out of minutes on his phone, two out of three methods of notification are ineffective which leaves the oral notice by the judge or attorney the day of his last court appearance. If, however, one forgets or wasn't paying attention, a fourth method of determining a court date would be to call the attorney or as a last resort, the clerk of court. In my latest experience of a warrant issuing for a client, he was notified of a pretrial and did call in explaining he was too sick to attend court that day. The matter was continued one week with a copy of the order being sent to the defendant. Trial was scheduled two days after the scheduled court date. Five attempts were made to contact the defendant by phone unavailingly. No return calls were made to the office. A call was made to a relative indicating a warrant had issued, and wouldn't you know it, but 20 minutes later the defendant is on the line claiming ignorance of any court date and explaining how it was my fault that a warrant was issued. If the general public had any idea of how difficult it can be to represent such people, we might actually be paid a decent rate for doing what we do. I especially love it when, in open court, they blame their attorney for not appearing--for not telling them when they were suppose to appear. The judge's response goes something like this: "Your attorney is not the one that will go to jail when you do not appear. It is up to you to know when you are to appear in court, not your attorney." I find this response very gratifying.

13 October 2012

Zealous Representation

An attorney has both rules of professional conduct and ethical mandates which require among other things a zealous representation of one's clients. In my case, my clients are criminal defendants. The majority of my clients have one or more of the following characteristics: unemployed, unemployable, below average IQ, repeat offenders, regular users of prescription, illegal, or alcoholic substances, no drive's license, indigent, producer of multiple offspring by multiple partners, mentally ill, and extremely ignorant. When representing defendants with one or more of these characteristics I sometimes wonder whether I am an attorney or social worker or are they one and the same. The question occurs whether a zealous representation is equivalent to what is in their best interest. In an age of criminal overkill many if not most of my clients will be in and out of jail throughout their lives. The clients of which I speak are unable to function in a manner that is satisfactory to the powers that be. The effort to ameliorate this is unrelenting. We have established counseling, therapy, half-way houses, probation, parole all in an effort to morph criminal defendants into productive citizens. This, of course, is absurd. Its not going to happen which, in a round-about way, brings me back to the title of this piece--zealous representation. Zealous representation as promulgated by our ethical rules can only make sense if you care about your client and attempt to do what is the client's best interest. As an example, I represent numerous people who are in jail on probation violations. Usually these folk are nuisances, they are incapable of doing what they are told, and they simply can't cope. Many an attorney has agreed to a plea offer of probation for his client where the client has no more of a chance of successfully completing probation than becoming an astronaut. Probation officers don't know what to do with them and so they ask the court to impose the original sentence and send the defendant back to jail or prison. The consequence of this is that the defendant has had a lengthy and bumpy relationship with his probation officer and then goes to jail or prison anyway. My view is: let's just do the time now and get it over with. Sooner or later the defendant will be doing the time and in the meanwhile he's got someone telling him where to live, to get a job, to become a teetotaler, to transform himself into a citizen just like the probation officer purports to be. It ain't going to happen. In the example that I have illustrated, the defendant will want probation because then he can get it over with, "get his life back on track", and most importantly, be released from jail. Jail may actually be good for some defendants, but not in the sense that most of us think of it. While in jail the defendant is dried out, he has decent food to eat, has a bed to sleep in, and can visit with his friends or make new acquaintances who he will benefit from in the future. All positives. In extreme cases, the only thing keeping some people alive is a periodic visit to lockup. In the end, if you care about your clients, you sometimes must do what is best for them even if they reject the notion. Whether this is considered zealous representation remains, in my mind, undecided.

09 October 2012

To Bond or Not to Bond

Do you ever wish that your client does not make bond--that he stays put, in jail until his case is finished? This is an occasional wish of mine. There are two reasons for this: first, the defendant vanishes without a mailing address or a phone; and second, he is rearrested and put back into jail before the first charge is fully addressed. In the first instance, you or your staff can spend a great deal of time trying to find a defendant. Some verge on the homeless, some move from one acquaintance's residence to another, or they find a new fiancee with whom to share bed and board. The thought of confiding in his attorney on a method of communication has fled his consciousness. He is now living for the moment. Normally your client will immediately obtain a cell phone with some prepaid minutes but the minutes are too precious to be calling legal counsel about the next court date. I'm willing to have a court date continued once and possibly twice but by the third no show my attitude is if he is in jail, I will know where to find him and we might get this thing rapped up. Practicing as a criminal defense attorney has an element of baby sitting to it One has to expect that, but there are limits. The second issue is whether your client can maintain long enough to dispose of the current charges before he gathers more. I have a client now facing two felonies but with a plea offer he will have probation granted more likely than not. The deal with the county attorney's office is for probation. However, he made bond, did well for a few months, and is now back in jail on new charges. The new charges are not severe enough to put him in prison, but the fact that he has them means the deal with the county attorney's office on the previous charges is off the table and to prison he will go. Your efforts, as this fellow's attorney, are wasted. The conversations with the prosecutor where you suggested the previous criminal acts were simply a misunderstanding and your client now has his act together are conversations you wish you never had since he probably won't believe you next time either. Your creditability has been damaged and the prosecutor reminds himself that he knows your client better than you do. And there you have it.

08 October 2012

Warren County

I drove to Indianola this morning. The Warren County District Court was not busy. We had a bond review scheduled which was held pretty much on time. My experience with Warren County has been rather spotty when it comes to holding to schedule. The irony is that it takes the jail a rather long time to have an inmate produced in court when the jail remains on the third floor of the courthouse with the courtroom on the second floor. The fact that the Warren County courthouse elevator must be the slowest elevator on the planet can not be the only factor in the difficulty the jail has in producing inmates for hearings. But regardless of my historical experience, we did not wait long this morning. Judge Lloyd was presiding and after a brief presentation and plea, reduced the bond, and additionally allowed the defendant to post 10% with the Clerk of Court. Posting 10% with the Clerk of Court is a fine thing. It allows defendants or the friends or relatives of defendants, who normally have little money, to have the bond posted returned to them when the case is over. Bondsmen are upset of course because it cuts into their livelihood. Just goes to show that no matter what a judge does, someone is pissed. The county attorney objected to a reduction of bond as is usually the case. Bond is a tool of the prosecution. Any defense attorney who has practiced any time will tell you that a percentage of defendants will plead guilty to about anything as long as probation is involved and they are released from jail. Whether they did the crime they are charged with is irrelevant. This is called the administration of justice. Justice is being administered to by the State. Cases must be moved along or the docket gets jammed up and defendants escape the punishment they so much deserve. It really doesn't matter if they did it or not since they probably have done other crimes for which they have not been charged and will do more crimes when they are released. This reasoning allows prosecutors to justify this method of criminal justice administration. Criminal justice administration has become a big business--a little like business administration. Very seldom will you find a two-year college not offering two year degrees in criminal justice. Most police officers now declare that as a major. Four-year colleges also offer degrees in criminal justice and a few even offer master degrees in the area. Having been a criminal defense attorney for thirty years I have yet to fully understand what the administration of criminal justice means. It wouldn't surprise me that they are yet attempting to understand why people commit crimes. The vast majority of crimes are simply because people won't do what they are told. The examples of this are almost endless from being told you can't drive more than 65 m.p.h. to smacking your girlfriend up side the head or smoking a little weed. If people would just do what they are told, there would be no crime. This is not difficult to understand.

04 October 2012

A Guilty Plea

We have all had clients who insist on pleading guilty. Unfortunately the defendant must make a factual basis for the plea. On occasion that is difficult. In the last instance of this I have experienced, the charge was stealing a vehicle which is a class D felony carrying a sentence of not more than five years. The defendant and his friends, though, only wanted to get from one place to another, not steal the vehicle. Unauthorized use of a motor vehicle is not a felony but an aggravated misdemeanor carrying a sentence of two years. The agreement was that the defendant plead to a felony and be sentenced to the five year term. The choice is to allow your client to plead to something he did not do or find some other charge to which he can plead. Judges don't much care for defendants pleading guilty to something they didn't do or to go through the most of the guilty plea colloquy and then reject the plea because no factual basis can be made. In other words, a defendant must be able to tell the judge that he committed the crime for which he is charged. Lying is not an option. An attorney can not allow a client to tell him one thing and then get in front of the judge and tell the judge something different. I did have a client tell me one time that he would just lie: "I'm a criminal and criminals lie". That may be the case but contrary to public perception, attorneys are not criminals and do not lie or they do not remain attorneys for long. But back to the point, it appeared to me that since the defendant did take the car, without permission, and contrary to the wishes of the owner, and he had control of it, that he could make a factual basis for misappropriation of property. It is a close call, but since under Iowa law there are now innumerable methods by which one can be accused of theft, it can work. The vehicle may not have been stolen, but it certainly was misappropriated. The distinction between "stolen" and "misappropriated" is murky, but apparently the legislature seems to think there is enough of a difference to call it by a different name. The car was certainly misappropriated and the defendant is now safely incarcerated in the Iowa prison system where he gave every indication of wanting to be.