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.

09 November 2012


I have often made the seemingly flippant remark that one can't feel right about oneself if one doesn't break the law at least once a day. I would expect that not one of the people who have heard me say that, has taken me seriously. But there is great emotional satisfaction in breaking the law. We are not talking here about murder, burglary, rape, nor credit card fraud, to name a few; we are talking about speeding, red lights, stop signs, and such. Committing a traffic offense isn't so much a sign of moral inadequacy or antisocial behavior, as it is simply an act of defiance. Whether you have thought about it or not, or have consciously come to the conclusion, people do become tired of being told what to do. If you leave your house in the course of a day, you will have some government body constraining your activities whether it be parking in a downtown parking spot longer than you are told you can, crossing the street at some place other than a marked walking zone or against the don't walk sign, changing lanes on the interstate without signaling, texting while driving: the list is practically infinite. And these instances are just the local government injunctions. We are not speaking solely of criminal acts here. We have the ocean of rules and regulations that control every conceivable activity from zoning ordinances, health ordinances, building codes, the Iowa Administrative Code, and the Federal regulations which would take a multistory building to hold. It doesn't take a criminal justice degree or a masters in psychology to understand that people simply get fed up with being told what to do. The surprising thing is that most people do try in most instances to do what they are told to do. I am unconvinced this is a good thing. It certainly reflects a lack of gumption in the general public. Are we all just a bunch of weenies? The argument against such defiance is that our country would devolve into a chaotic state where danger and misfortune would lurk around every corner. This is not a testable hypothesis, but a rationalization. As compliant and ignorant as the general population of the United States is, chaos seems unlikely. And although defiance has a certain positive quality, the current processes of parenting and public education usually eradicate most defiant tendencies of our younger population before they reach of the age of majority. So when a person says that he doesn't feel right about himself unless he breaks the law each and every day, it simply may be wishful thinking-a yearning for the loosening of constraints. And if it means excusing a person for running a stop sign on an empty rural intersection or driving ten miles an hour over the speed limit on an empty highway, the emotional satisfaction derived from such a petty infraction may be well worth it both for the person doing it and the authorities.

08 November 2012


I applaud the efforts now being made here in the State to stop bullying. Several incidences this past year have been covered extensively by the Des Moines Register and the local television channels. It has been made clear that these acts of meanness have led to physical and emotional harm as well as death. The public has now been properly conditioned to accept action by the legislature. This upcoming session should now be free to address the issue of bullying without repercussions from the electorate. No one will lose his or her job by enacting an anti-bullying statute. On the contrary those supporting such action will be able to return to their constituents with full satisfaction that they have done well and should be congratulated for dealing with the problem. Progress is currently being made. An educator with whom I am familiar has indicated that the State is now requiring schools to report allegations of bullying. Those receiving this data will be creating a meanness index. This index will have two benefits: first, those children who are reported to have bullied will be identified. A meanness score will be given to each reported allegation and a total made at the end of each child's public education career (K-12). Legislative action may be required to make this information public and should be included in any proposed statute. Each child will be given a meanness indicator number identifying that child's propensity toward meanness. This meanness indicator should be made available to any future employer, landlord, potential neighbor (realtors), etc.; second, the data will be used to categorize schools as incubators of meanness where appropriate. This information will also be valuable to any parent thinking of open enrolling their children in another school district. It will give the State the ability to take corrective measures where appropriate. It might be feasible to create a special anti-bullying police force to be assigned to any school meeting the criteria of a bully incubator. If parents are unable to inculcate kindness in their children, then the State must intervene and involve itself as it has done in so many other areas. Creating a new bullying crime is the path to follow. We must be very careful not to limit the crime to physical contact or a threat of immediate physical harm or offensive conduct--these acts are currently chargeable under the assault chapter of the Iowa Code. It must include all forms of internet communication. Stating on your facebook page that so-and-so is a weenie and eats dog poop and the next time you see him you will beat the crap out of him would not meet the necessary element of the immediate ability to do what you threaten to do, unless of course you are sitting next to him in the cafeteria. Kindness, respect, good manners must be required. The innumerable posters on the walls of every hallway of every school in the State have not had the desired effect. The legislature must act.

07 November 2012

Election Results and Bestiality

The aforementioned election did little to satisfy the lust for incarceration either here in Iowa or nationally. Far too many Democrats were elected to expect any uptick in the number of arrests and incarcerations. It is a common misunderstanding to think that the Democrats have the same fervor for incarceration as the Republicans. The Democrats, but only relatively speaking, have been soft on crime tolerating a considerable amount of deviant behavior from the general public. The election results of yesterday have put a bad taste in the mouth of law enforcement. They realize, even if the majority of lay people do not, that more rules mean more arrests. And consequently it is a sad day when the Republicans do not carry the day. Unfortunately there was no incidence of necrophilia or bestiality to make the news prior to the election which could arouse the public into indignation demanding action by the legislature. In 2001 a bestiality chapter was added to the Iowa Code making sex between a person and an animal (an nonhuman vertebrate, either alive or dead) an aggravated misdemeanor subject to as much as two years in prison. In addition, the court must authorize psychological evaluation and treatment at the defendant's own expense. I have reviewed Chapter 692A and it does not appear that a person convicted of having sex with an animal is required to register as a sex offender. What could be more egregious than having sex with an animal. If having sex when criminally enjoined from doing so is not a sex crime, what is? I think even Democrats could be persuaded to amend Chapter 692A to include bestiality as a crime requiring sex offender registry. It would open up a whole new area of regulation and therapy. For instance, new sections could be added to the chapter to prohibit the offenders from living within two thousand feet of a stock yard, sale barn, veterinarian office, kennel, or any registered pet owner. The safety of our pets and live stock should be paramount. A new field of expertise would come into existence: person-animal sex therapists. PETA would approve. It is true that the code section in issue here, 717C, currently requires psychological evaluation, but this really misses the mark. What will be needed are therapists specializing in person-animal sex. I know that I am not alone in my concern for our pets. If you share this concern, do the responsible thing and contact your legislators demanding action.

06 November 2012

Legitimate Rape

Its election day and we can only hope that the Republicans will prevail here in Iowa so that we can then have an intelligent discussion of rape. Our criminal code does not distinguish between legitimate rape and illegitimate rape which is a legitimate concern-hopefully not being unduly playful with the wording. This being a serious subject and one that needs clarification, readers should not believe for an instant that I am not serious when I say we need clarification which clarification should be enacted this next legislative session. Too many men are subjected to prison and requirements of life-time sex offender registration where the rape has not been legitimate. Is one "No, I don't want to have sex", enough to classify the sex act rape. Should the person being raped be required to say it three times? If one of the sex partners is immobilized by ropes, handcuffs, or other devices, can we call this legitimate rape? The popularity of the book Fifty Shades of Gray would seem to indicate that this would not be legitimate rape. If one of the sex partners is drunk, should this be classified as legitimate rape? It would seem to me that the whole purpose of getting drunk would be to have sex especially in a frat house or some like establishment. We need clarification. The police and prosecutors need better guidance as to what may be deemed legitimate and what illegitimate. There are instances where women have been charged with rape and in most cases these are instances of illegitimate rape. The latest example to read about in the papers is the female teacher having sex with high school boys. Being a man myself and having once been a high school student, it is difficult to think that I or any of my friends would have objected to having sex with an attractive, young high school teacher. From what I gather from the Des Moines Register, this young, attractive, female high school teacher is being prosecuted for sexual abuse and faces prison and sex offender registration. This is but one more example of what should be considered illegitimate rape. The new legislature must immediately put together a study committee to examine the current laws on this subject and make recommendations for changes. I would advise strongly against inviting experts, social workers, sex counselors, prosecutors, or police to be on the committee for they usually have an economic interest in the number of people prosecuted for rape. The committee should only consist of legislators and ordinary citizens who have no economic interest in the matter.

05 November 2012

To End Welfare

As I have argued previously, crime is an economic activity. The distribution of illegal drugs certainly qualifies as does most other illegal conduct. Property crimes are a major contributor to the economic life of the nation: theft, fraud, forgery, burglary, robbery, to recount just a few. Congress has in its power to increase the incidence of property crimes ten fold with the correct legislation. We should discontinue disability payments to those unemployable for whatever reason they might have such as mental or physical disabilities. Schizophrenics find it difficult to maintain employment-of any kind. People of below marginal intelligence find it difficult to keep a job for any length of time. And of course, substance abusers are notoriously unfit for the job market. There are many, especially Republicans, who continually bemoan the handouts to these people. They should work for a living just like us responsible citizens. I am in agreement with those who wish to terminate disability payments, welfare for women who keep having illegitimate children, food stamps, and other forms of free handouts to ne'er-do-wells. By ending these nefarious forms of redistribution of wealth, we would have an veritable explosion in crime, especially property crime and drug dealing. It would be an immense benefit to the economy. The money spent to replace what was stolen, burgled, robbed, and otherwise taken illegally, the money spent to hire law enforcement, prosecutors, judges, jailers, prison guards, counselors, social workers, probation and parole officers, clerks of court, the increased insurance premiums, the construction of additional jails and prisons would be far in excess of sums doled out to the unemployable. One might think that the return of begging and the vast increase in homelessness would be a significant problem. Not so. Our legislatures would bring back the crimes against begging, panhandling, loitering, and other infractions meant to keep the miscreants off the streets. Its very annoying to have people come to your door begging for food, or rushing up to you as you exit your vehicle requesting they be allowed to wash your windshield for a few bucks, especially if they have children tagging along. If children are found on the streets, we have an army of social workers able and willing to snatch them up and file children in need of assistance petitions based upon neglect. These parents will be unable to fulfill the numerous requirements imposed on them for the return of their children such as court appearances, parenting classes, substance abuse counseling, and in no time at all a termination of parental rights petition will be filed and the parent-child relationship be permanently severed allowing some deserving family to adopt. Complaints about burglary, home invasions, robbery, pick pockets, shop lifting, etc. will not be tolerated. Homes must be burglar proofed, security cameras must be purchased, razor wire must be installed--money must be spent. The Gross National Product will jump from the now measly two percent to four or five; jobs will be created; the deficit shall be reduced: taxes will decrease. All will be for the good.

03 November 2012

Trivial Pursuit

There should be commenced a contest among law enforcement agencies such as police departments, sheriffs, high patrols, etc. on which agency can give citations for the most trivial infractions. A central state agency should be created to monitor the contest and award prizes which prizes would be substantial enough that the various law enforcement agencies would participate. The prizes probably should be monetary as well as the granting of public accolades to those individual officers who have issued the citations for the most trivial offenses and to the local agency whose officers have issued the most. An issue that should be decided in advance is whether both arrests and citations should be considered. It would seem appropriate that an arrest would be worth two or three citations considering the inconvenience to the officer making the arrest. It takes a substantially longer time to arrest someone, transport them to the local jail, and fill out the necessary reports than it does to simply write a citation. An officer could be writing numerous citations during the time it takes to arrest one person. Possibly we should count an arrest as ten citations--that might be the solution. Traffic citations, it is expected, would be the constant source of trivial violations. Very few citizens actually drive the speed limit. A speeding ticket for one mile over can be easily issued. Fix-it tickets for equipment failure probably should not be counted, unless, of course, the code specifically determines that the failure is a criminal violation such as head lights, rear lights, license plate lights, and turn signals. The number of traffic violations that exist is practically infinite. Sitting at an intersection with traffic control lights would bring a constant flow of citations such as entering the intersection on yellow or failure to use the turn signal. One almost gets giddy just thinking of the number of possible citations. There would be the usual grumbling though. Those officers not having traffic duty will complain. The drug task forces will be at a disadvantage. They should not despond quite yet though. Arrests could be made for one marijuana seed found during a trash rip. If a search warrant is executed and numerous articles used in the ingestion of controlled substances are found in the residence, separate charges could be filed on each item. For instance, if three marijuana pipes, two meth pipes, and four empty folds were found, nine separate simple misdemeanors could be charged along with the felonies. Although in this particular contest, felonies do not count as they are not trivial. And, further discussion could be had prior to developing the rules for the contest to determine the weight of the particular citations or complaints being filed. The goal would be to have as many law enforcement agencies and individual officers as possible participate in this contest. Making it fair to all would encourage participation. This contest of trivial pursuit would have the added benefit of helping the state treasury: it would be bountiful. The amount of money flowing into the local clerk's offices would be multiplied. The legislature would be ecstatic; it might even cause Governor Branstad to renew his effort to decrease property taxes which would be very helpful to us operating small businesses in Iowa. The contest would encapsulate the very goal of every good Republican to "get tough on crime". Only the morally deficient would complain, and they don't count. We need volunteers to organize and present a proposal to the Department of Public Safety and if legislation should be required, a spokesman could be named to present the plan to the appropriate legislative committees.

02 November 2012

Jury Nullification

Nothing would be more ill-advised than allowing juries to think they can simply ignore the law and find a defendant not guilty. Juries are instructed that they must follow the instructions as given to them by the judge and any indication of insurrection should be immediately addressed. In this great republic of ours, we delegate the authority to make and enforce laws to our elected representatives and any sign that the general public might not agree with a certain enacted crime should be dealt with as it occurs. No indication should be given during a criminal trial that the law was enacted for the benefit of just those chosen to decide the case; and it makes not a whit of difference if the jury agrees with it or not, they must find the defendant guilty. Anarchy would result if juries were free to find defendants not guilty simply because they had the notion to do it. Many a defense attorney has wanted to stand in front of a jury in closing argument and argue that the crime for which the defendant is being prosecuted is really stupid and the twelve people deciding the case can find him not guilty whether he did the act or not. I suspect a mistrial would be instantly declared, the attorney either held in contempt or severely reprimanded, and the defendant required to go through the entire process a second time--probably with more compliant defense counsel. It is an unfortunate fact that a jury trial is the single, only, specific instance of a citizen having a direct say in what the law should or should not be. And I say unfortunate advisedly. No small group of citizens, such as a jury, should be able to nullify the power of either the state or the federal government. In any other form of insurrection, the group would be instantly jailed and charged with some crime or another and be held to account. As a jury, they can do whatever they want and nothing can be done about it. We need to fix this. We need our legislatures to address this issue and enact some sort of crime whereby jurors can be prosecuted if they do not follow jury instructions. If a legislative body takes its valuable time to pass a law, and the multitude of law enforcement agencies extant make the effort to enforce it, we can't have a group of twelve people ignoring it. Too much time, effort, and money has gone into the process.

01 November 2012

Prescription warning

I recently took the deposition of a task force officer as a result of a raid on a residence with full ninja outfits, battering ram, and other accoutrements of home invasion and during the course of his testimony he indicated that he took a bottle of pills and for which the resident was charge with Possession of a Prescription Drug without a Prescription. Even though the prescription was to a family member whose name was on the search warrant and presumably thought to live there, but was not present at the residence during the entry and subsequent search, the resident who was present, also named on the warrant, was charged with Possession of a Prescription Drug without a Prescription in violation of 155A.21 of the Iowa Code which states: "A person found in possession of a drug or device limited to dispensation by prescription, unless the drug or device was so lawfully dispensed, commits a serious misdemeanor." Other than for the fact that the section is barely intelligible, a prescription label appeared on the bottle indicating lawful dispensation. The most difficult part of this to understand is why the resident would be charged with a violation of 155A.21 or charged at all for that matter. What is it in the character of the charging officer to file it? Are we so anxious to charge people with crimes, thereby being able to define them as criminals, that law enforcement will use any method possible to do so? If this were a stand alone charge, the resident would be subject to jail, cost of bond, cost of legal defense, disruption of activities for court appearances. A word of warning to all of you who have recently departed children whether through college, marriage, job, or whatever reason, you better check your medicine cabinets for according to the local drug task force you are committing a crime and are subject to arrest. Not only are you subject to arrest but you probably will be arrested and find yourself on an escorted trip, in handcuffs, to the local jail. In the first place, section 155A.21 states that there must be a valid prescription. In this instance there was and it was apparent. So where is the violation? Secondly, the code section does not indicate in any way that the one person can not hold the prescription medication of another person. So where is the crime here? There is no crime and someone associated with the drug task force should know it. It is difficult to understand.