09 February 2013

Jury Nullification

Jury nullification is the pejorative term used by the bench and bar to describe the phenomena of a jury doing what they want to do and ignoring the instructions given to them by the judge. Juries are reminded early in any proceeding that they are required to follow the law. This is a false statement not to be corrected by the attorneys trying the case. Juries sometimes do ignore the law and decide cases contrary to the instructions given them. It doesn't happen often, but occasionally you have a jury that decides they will find someone not guilty in spite of the instructions. A jury can always find a way to explain their decision such as they found the State's witnesses not credible. I've never heard a juror subsequent to a trial say that the state proved its case, but we found him not guilty anyway. Once again it boils down to do what your told to do. That's what life is about, isn't it, doing what your told to do? There is nothing more democratic than a jury; it is democracy in action. It is action by the people. We have a republican form of government. We elect people to represent us who enact the laws that control our behavior. These laws are enacted without direct involvement with the people. There is nothing to determine whether the laws passed are have the approval of the majority of the people; and even though it would be cumbersome and expensive to have a referendum on every legislative proposal prior to its final enactment, it would be interesting. More than likely it would bring more people to the polls. On one occasion I objected to the admonition to the jury that they must follow the law. I did make a record on it and simply stated that the jury can do whatever they want and to tell them otherwise is false and misleading and I should have added, a violation of due process. This objection brought an incredulous response from the judge who had never heard of such a thing and was overruled immediately. But this does raise an important question. Why is it proper to be able to tell a jury something untrue. According to many, the function of the jury is to find the truth; to come to a correct decision. Apparently, if the jury finds the truth they must decide accordingly--at least this is what they are told by the judge. But, they don't have to do that. If they find a criminal statute stupid, they may find the person not guilty simply for that reason. The courts do not want the jury to know what the possible penalties are as well. The fear is that if they did know what a person was facing, they would have a second reason to find the defendant not guilty. This is looked upon in horror by the courts. The result is that though some are found not guilty, the deck is stacked against the defendant. Everything possible is done to provide for a conviction of someone charged with a crime. After all, we need to do what we are told to do.

06 February 2013

Trial Preparation

I trying day in court. A client and I had a conference about the previous trial date which was continued because the client had effectively disappeared. Telephone calls were not returned. Letters requesting contact had no response. The subpoena sent for signature and return had disappeared into the nether. The trial was continued, but wouldn't you know it the client shows up at the designated time for it. In reply to the statement that might it not be a bad idea to prepare for the trial, the response is a blank stare. A trial to some is merely something you show up for; it is just another event in the life of the defendant. It does not occur to the defendant that preparation is involved. It doesn't occur to him for the reason that preparation is a notion that has no meaning to him-it is unfamiliar, unknown, and incomprehensible. He has never been asked to prepare or if asked, has ignored the request. Preparation takes planning, time, and effort. Time the defendants, you would think, have plenty of, but don't. Planning is not something that occurs to them. Future is a foreign concept. To visualize the future would cause angst. The future can be articulated without visualization. Such as "I'm going to get my GED and a job." This is a statement one hears regularly from those who have heard it from someone else who has indicated it is a good thing to tell people, especially judges. The statement has no significance other than to have something to say that might sound good. To translate the words into action is actually not contemplated-there is no understanding that such activities take some thought. What this is leading to is that defendants do not understand trials need preparation which in turn necessitates forethought, planning, time, and effort. So, to there mind they merely are required to show up on the date of the trial, presumably sit around for most of the day, and then go back to the business at hand which is usually hanging out with their friends and getting high on whatever substance happens to be available on that particular day. Its not that they don't think there is no preparation involved, they just don't think about it at all. Its just a blank-an empty space, a void, a nullity. And since the defendant will not speak with his attorney, he can not be informed otherwise. All very aggravating; the worst part being we get paid crap to do this.

05 February 2013

Federal Fear

Simple observation leads one to believe that the federal government is afraid of the public its purpose to serve. One can not enter a federal building without disrobing; required to empty pockets, take off shoes and belt, screen anything being carried. The federal buildings, most especially the federal courthouses, have become mausoleums. No one goes to the courthouse for the simple reason they are not welcome. Those working in the courthouse and other federal buildings spend their days without public contact. I am speaking most specifically about the federal courthouses. One is asked his or her business, is required to show an identification, and is looked upon with suspicion and sometimes downright hostility. One can only conclude from this behavior that the federal government is afraid of us. I include myself in this as I am a part of the public. Even though I am a member of the court, admitted to practice before it, I must undergo the same scrutiny as the general public. It makes no difference that the people guarding the gate know who I am-a practicing attorney with business in the building-I must empty my pockets, show an ID, and at times take off my shoes. One can blame the United States Marshall Service for some of this, but presumably they take direction from someone. The U. S. Marshall Service is in charge of security at the United States Courthouses. They take their job very seriously. I have actually never seen a U. S. Marshall smile. The people who are not required to undergo this scrutiny are law enforcement, prosecutors, and judges. It is not possible to be one of the elect and not come to the conclusion that they are exempt from suspicion; that they must be protected at all cost; and, the rest of us may cause them some harm. This is not a good situation. Courthouses should be open to the public; the public needs to know what goes on behind these gated communities. The activities of the federal courthouses have in essence become secret and mysterious. People go in and disappear for years at a time without anyone knowing or understanding what has happened to them. There is a difference in behavior between a judge sentencing a man to 20 years in prison for cooking up some meth to an empty courtroom to a judge in a courtroom with people sitting and watching and judging for themselves what our criminal justice system is doing to our citizens. Fear is frightening. When someone fears you, it gives them motivation to harm you. We should be afraid of our federal government for the simple reason they are afraid of us. And the federal government is not alone. You will note that most modern police stations and sheriff offices and law enforcement agencies of the federal government have secured doors and entrances. You must buzz to get in so that you can be asked your business. Rather than "Hi, can I help you?" you get a "What do you want?". They are the one's with the guns. What are they afraid of? None of this is good. It speaks to where we are as a society; where we are required to be frightened of our fellow citizens. Yes, there are those unstable and deranged personalities out there that may harm you, but I maintain you can't let it affect you in the way that it has. If a person is that afraid of his or her personal safety, then a different job may be in order. Unfortunately, it appears that fear has been institutionalized; that it is a requirement of the job as law enforcement or working for the government in other capacities. It simply isn't healthy to treat the general public in this fashion. Random violence will occur and you can not protect yourself from it without losing some of your own humanity.

04 February 2013

Lying on the Stand

There is a new article and blogs concerning lying cops. Not all cops lie when they testify; some do. Some cops testify in such a manner that it helps make the case for the prosecution; shading testimony, emphasizing one fact over another are not necessarily considered lying, but they do come close sometimes. The question posed is why cops lie. This is not a difficult question to answer. If one comes to the understanding that much of the criminal law as presently on the books and the people hired to enforce it, is for the purpose of controlling the citizenry, then the answer is self-evident. Whether the defendant actually did the crime is irrelevant; a meaningless fact. The concern is a well-regulated society; a society in which the citizens think what they are given to think and act in accordance with the rules promulgated. The cops are given more discretion annually. A major legislative feat enhancing the power of the police has been the enactment of the child endangerment crimes. Child endangerment is whatever the cops say it is; it may be a single persons view of the proper care and maintenance of a child. When a person is charged with child endangerment for having marijuana in the house, the cop making the charge has simply determined, on his own, without any basis in fact, that if the person is breaking the law by smoking marijuana, he or she shouldn't be a parent. Cops know best; their view of the world is the correct one; one that has been set in print and placed in the books as the law. After all, they are paid to enforce the law and they are going to do it come what may. So when it comes to sitting on the stand at a trial where the defendant has had the audacity to deny the charge and tell the prosecutor to prove it, it becomes a direct challenge to the cop who filed the charge. The cop certainly wants vindication-to be validated; it is not a badge of honor to have his case thrown out of court nor to have a jury find the defendant not guilty. There you have it--why cops lie on the stand.

01 February 2013

No Probation for Me

Speaking to a client regarding disposition of his case, a client on probation but with new charges, the sentiment was expressed that he would rather do his time than have a probation officer up his ass. I found this expression of disdain refreshing in a criminal defendant. Most defendants beg for probation, some of whom have no hope of ever completing it successfully, to "get on track" or "to get my life back together". The fact of the matter is that if you are incapable of dealing with the world without being placed in jail, it is very unlikely that you will be able to cope with probation. Dealing with the world, i.e., functioning in a manner which allows them to live what we call a normal life is beyond the capability of these defendants. If the normal day-to-day activities are such that one has no job, no money, and friends just like them, probation will be merely a fanciful ideal of the judge who placed them on it. The goal, of course, is to make each individual a productive and responsible member of society. Just as some people are tall and some short, some people are lean and some fat, some people are functional and others are dysfunctional. No amount of counseling, therapy, classes, or supervision will change this fact. Now, granted, dysfunctional people can be annoying; they interfere with what little pleasure the rest of us can find in out daily activities. We, us normal people, have this unconscious attitude that others do not have the right to be annoying; it is not a constitutionally protected right. We have further unconsciously decided, meaning without thought, that something must be done to make annoying people unannoying. To this end, we have established a vast array of so-called services for the purpose of doing just this. To make these services serviceable we have put the power of the state behind them. The courts order dysfunctional people to become functionable through therapy. When this fails they go to prison. Prison or jail is where we put annoying people. Public intoxication, disturbance of the peace, trespass all are activities considered annoying. Those engaging in these activities must learn not to do them so that the general public will not be inconvenienced in any way. We did finally decide that vagrancy would not be a crime, but do not despair, vagrants can be charged with something. I think we should just be honest about what we are doing; let's call it what it is and not make up names for things. George Orwell, some years ago, pointed to the use of language as a method of control. He was correct of course. Most of us use language, not to communicate, but to dissimulate. Dissimulation is a form of control; in fact, one might say that it is the basis of control. Very few people communicate, think about what they say or hear, and those in charge understand this very well. If we, as the general public, actually gave thought to what people say, it would be a different world from what it has turned out to be.

30 January 2013

Economic Status

The Iowa Court of Appeals in a recent decision, State v. Dunn, No. 2-847/12-0417, filed 12 December 2012, stated very clearly that a sentencing court may not use economic status for purposes of sentencing as violative of the 14th Amendment. The Court did say, however, that a sentencing court may use a defendant's job history. The District Court in this case mentioned at the sentencing, among other statements, that the defendant was receiving food stamps. I have a difficult time disentangling the two. A person's job history is the surest method to determine that persons economic status. To comment upon the use of food stamps by a defendant does not appear to be nearly so dispositive of a person's economic status as a job history. Working at McDonald's or Walmart means you are poor. This is a certainty. Working at a kiost selling cell phone covers is a certification of indigency. One sees very few not-poor people in jail or prison. An occasional hedge fund manager being sentenced to prison is not indicative of the population of our jails and prisons. I have no statistical studies to corroborate the opinion that 98% of our prison population was poor by anyones standards when they entered the prison gate, but it would take such studies to convince me otherwise. It is probably accurate to state that poor people, on an average, commit more crimes than those who are not poor, but the not-so-poor don't get caught as often. The not-so-poor have the ability to insulate themselves from the police. They commit their crimes behind closed doors and know better than to call the police if an issue arises. The not-so-poor know better than to call the police over a domestic squabble; nor do they have near neighbors who can hear the ruckus and call the police because of the disturbance. The not-so-poor do not engage in saloon fights and if there were to be fisticuffs at the club, the cops are certainly not notified. When they say that the poor are victims of crime, those who say it do not realize how true their statement is. When a family member is arrested, the entire family is penalized: rent is not paid, pay checks are not seen, one parent families are created instantly. The Court of Appeals is correct to say that receiving food stamps should not be a sentencing factor, but further inquiry should be made as to what is and isn't a proper inquiry at sentencing.

28 January 2013

Doin' Right

Doin' right seems to have no bounds. Spent most of the day in court today, much of it in a suppression hearing over the execution of a search warrant. At one time I marveled at the lack of concern law enforcement has for the property that is to be searched. Not any longer. Most, if not 99% of criminal defendants live in rental properties, either houses or apartments. Busting through a door, shattering it and the door jam with the ram has no meaning to the entry team. The ownership of the property or the amount of destruction does not appear to be a factor in their calculations.. Doing a thousand dollars of destruction to a entrance to a home is irrelevant as long as the people inside the residence don't have the time to run to wherever their stash is, grab it, and then run to the bathroom and flush what little marijuana or other illegal substance they might have in their possession down the toilet. Arresting law breakers and drug users is far more important than worrying about a silly little door which might cost the owner a significant amount of money to replace. After all the officers breaking down the door are upholders of the law and are ferreting out those who do not. It matters little that at the point of entry, no admissible evidence exists with which to charge anyone inside the residence. The purpose of the home invasion is to find evidence with which to charge, convict, and properly punish those who flout the law. Very seldom do they come away empty handed. At least there is a pot pipe sitting around in a drawer or some pills not in a prescription bottle that can be used to haul the residents off to jail. Law breakers must be hunted down and punished at any cost. Our well-being depends on it. If the landlord's apartment gets trashed in the process, that is the result of renting to scum bags and ne'er-do-wells. It is the landlord's own fault if he is out a door; he should be more careful who he rents to.

24 January 2013

Trial Preparation

Trial is a mystical concept to many defendants and hence, trial preparation can seldom be adequately explained to them. Considering very few defendants go to trial, it should be understandable that defendants do not properly visual the process. Nothing prepares them for the experience. On those occasions when the defendant has disappeared, will not acknowledge correspondence, return phone calls, or otherwise make himself available for consultation, criminal defense attorneys ask themselves why they bother. On the morning of the trial, the defendant may or may not show up. If an appearance is made, he or she will expect to leave shortly for another appointment or worse, having just got out of bed and is barely coherent. The day's events have not been explained to the defendant because he or she has failed to communicate with his or her attorney (I will say men are much worse than the women). The prospect of sitting in a courtroom most of the day during which the defendant is expected to be sworn in, get upon the stand in front of everyone, including the jury, and answer questions is overwhelming. None of this was anticipated by the defendant for the very simple reason that his ability to anticipate approaches zero. The class of defendants to which I refer do not anticipate or plan. It is foreign to their experience as human beings to reflect on anything other than their immediate needs. Most non-lawyers do not realize the amount of work that preparing for trial can be nor how intense and consuming a trial is. This is especially true of those defendants to which I refer. In their mind, you show up and have a trial--what's the big deal. This is not only for the reason that they do not know what a trial is, but they do not give it a thought. Most court appearances for most defendants are short. These appearances may be arraignments, guilty pleas, sentencings none of which take long and usually involve the defendant, a couple of attorneys, and the judge--oh, and the lady who sits in front of the judge, whatever she does. None of these activities take any effort. So as much as these defendants know, they will show up, they will say something, or someone will say something to them, they will be done and can go about their business. This is all very frustrating to the attorneys involved who actually think that some preparation is appropriate, some consultation with the client and witnesses would be a good thing, and realize the loss of time and inconvenience of the citizens of the county who have been called to jury duty, sat through their film on how to be a good jury, and otherwise lost a half-day of pay.

22 January 2013

The Passive Defendant

I have often wondered the ease with which law enforcement obtains confessions. Without confessions many criminal charges would not result in convictions. Weekly I will speak with a defendant newly charged to determine the facts of the case thinking to myself that this defendant can beat it, until we get to the part of whether he said anything to the police when arrested. And yes, of course, the defendant admitted that he made meth, or was the one who burgled the garage, or punched his fiancee. I ask the defendant why? Usually the response is "Well, I did it." Either defendants do not understand that the issue is not whether they did it, but whether the state can prove it, or they simply do not care. Exceptions do exist, but are few. One can only conclude that most of the people criminal attorneys represent really don't care what happens to themselves. They have nothing; they have no prospects; they merely exist from day to day without much thought for tomorrow for that would be too depressing. None verbalize this and all voice their dissatisfaction with the idea of going to jail or prison, but few put up a fight. I also ask defendants why they want to make it easy for the state to put them in jail or have them supervised. They have no answer for this and one can only assume that it is easier-less stress. The idea of actually going to trial frightens them terribly. Trial is stressful. At trial the defendant will be required to not only confront his own demons, but demonstrate to others that he is a decent sort of fellow. Sitting on the stand, answering questions in front of 12 people who are to judge him is, as I say, a terrifying idea. It is so much easier to just plead guilty, do some time in jail or probation and return from whence they came. It is easy for a criminal defense attorney to fall into this same pattern when representing people charged with a crime. If the client isn't putting up a fight, why should his attorney. Cut the best deal available from the prosecutor, plead the defendant and have him sentenced to whatever the authorities that be consider appropriate. Easily done. Little time is involved; no trial preparation, no finding witnesses, no filing motions, no writing briefs, etc. A criminal defense attorney must guard against this. Sometimes there really isn't much that can be done for a defendant, but even if the defendant is a push over, the attorney is not required to be and shouldn't be.

19 January 2013

In the Middle

Relaxation should have flooded over me this morning when I read that State Representative Dan Kelly of Newton will see to it that the middle class will be strengthened by his efforts in the Iowa legislature. He states in his declaration of intent that he will "move the middle class forward" by the proper attention to the governor's education initiative. Since the term "middle class" has a somewhat amorphous designation, probably that of the bell curve, most of us include ourselves in it. Apparently being in the middle is a satisfactory place to be. No one I have ever spoken with has ever disclaimed it. Representative Kelly is thereby speaking to us, the 90% of the public, those in the middle who take what he says seriously. Now, I require some edification, education if you will, on where Mr. Kelly wants to move me. At the moment I am satisfied as to my location and moving forward or any other direction will require some discussion. Representative Kelly continues by stating that he will not be bullied by the governor which indicates that he believes the governor may be moving in a direction other than forward--backward or sideways perhaps. All this movement would be disconcerting if one could discern what these people are talking about. Since I can gather no meaning from Representative Kelly's pronouncements, I can only presume that Representative Kelly intends making statements without any significance, at best, and at worst, that he has no ability to communicate in an intelligent manner. I would like to give Representative Kelly the benefit of the doubt and believe that he purposefully makes statements that have no meaning. Intentionally obfuscating has become a perfectly acceptable method of behaving for our elected representatives. This would indicate that Representative Kelly has made an accurate assessment of the general public and wishes to retain his seat in the Iowa House. This can be done by proclaiming his support of the middle class and his desire to move us forward.

18 January 2013


I have concluded that inactivity is at the root of drug use and mental health issues. Contrary to popular opinion these are not the same. Having practiced criminal law for some time now, it is apparent that many people simply don't have enough to do. Now I am not one to say that life is about work or that work should be the primary source of one's satisfaction in life, but a job would certainly help some of these people. I am also not suggesting that the government cut these people off from what little income they have through disability payments or whatever, but I have seen a half dozen people within the last few days that need something to do with themselves other than sit in front of a television for most of the day, get bored, and then do something stupid. Its not the money; its the time. If a person had a job, it would at least subtract some hours of the day from the time they have available to get high or do something stupid. And, if these people were actually doing working at something, they not only would have less time to get high or do something stupid, they might not have enough energy left over for the stupid part. One of the problems with this problem is that no one will hire these people. For any job that requires regularity, consistency, or an alarm clock, these people are not good candidates--not much different from working toward their GED or the alternate school. I think we should bring back public works. I am not speaking of forcing people to work for little or nothing. There is plenty of things that need to be done that the government could pay people to do. The work would be available if anyone showed up to do it. No schedules, no deadlines, just something to do with a paycheck if one wants one. Examples could be picking up litter, shoveling snow or mowing grass, filling cracks in the sidewalk, running errands. Paying these people some money for actually doing something would be cheaper than housing them in jail or putting them on probation which they can't successfully complete in any event. Doing a little work would be healthier than sitting around the apartment getting high or being forced into inactivity in the county jail. It would put a little money in their pocket and would cut down on the time spent with their friends drumming up mischief. These are positive steps that not only would make it a better place for us, but also for them. Telling someone who has nothing to do all day not to do drugs is futile; and those with mental health issues, explanations are like so much air passing over their heads. Give these people something to do!

17 January 2013

Posting Bond

When you are charged with a crime, you have a right to bail. The founders of our State thought enough of this that two provisions were placed in the Iowa Constitution regarding bond: Article I, Sections 12 and 17. Section 12 provides: "All persons shall, before conviction, be bailable, by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great." Section 17 provides: "Excessive bail shall not be imposed, and cruel and unusual punishment shall not be inflicted." The Iowa legislature has provided that when the court is not in session, such as the middle of the night, and in the case of a nonforcible felony, the Judicial Council will promulgate a bond schedule to be used by our jails. The Iowa Judicial Branch posts the amounts for each level of crime on their website. The Uniform Bond Schedule is used state wide and has become the de facto basis for most bonds. The courts regularly set bonds in the same amounts apparently believing that the Judicial Council meaning the chief judges and chief justice believe them to be the appropriate amount of bond for each level of offense. Bonds have been standardized. The question becomes is the Uniform Bond Schedule in compliance with the constitution if it becomes the standard. The Iowa Constitution states that excessive bond shall not be imposed. If a person can not make the amount of bond as set forth in the Uniform Bond Schedule, is that amount excessive? The Iowa Constitution further provides that all those charged with a crime, except for capital offenses, are bailable. The purpose of bail is to allow the release of a person charged with a crime until the matter is disposed of one way or the other. Most defendants, as previously noted are indigent, have an attorney appointed to represent them at state expense, and are unable to post most any bond. Bondsmen normally charge a 10% fee on a bond and may require additional security from the defendant or someone ready to stand bond for him. If a bond is set at $10,000 which it is for a Class C Felony, the defendant will be required, at a minimum, to pay a bondsman $1,000. This sum is out of reach of most defendants. The question then becomes is this amount excessive. The purpose of bail is to ensure the defendant appears in court to answer the charges against him. The common practice, especially in the more populous counties, is to use bail to force pleas from defendants. The bond for a serious misdemeanor is $1,000, for an aggravated misdemeanor it is $2,000. One would think that anyone would be able to make bond using a bondsman. Untrue. The jails are full of people who have no money and if their wife or significant other uses what little money she may have to bail the defendant, the rent doesn't get paid or the kids do without. We, as a society, are in denial. Those who work, have residences, children in school, the normal stuff, do not think about nor do they want to think about the fact that a very large number of people do not have $100 or $200 to get themselves out of jail. Where a person is charged, as an example with an offense that will normally get him a few days in jail, he will certainly not sit in jail for months waiting for his case to resolve by going to trial when he can plead guilty to something and be out of jail in a week or so. The criminal justice system strikes again. People are pleading guilty to all sorts of charges when they shouldn't for the simple reason they are in jail and can't get out. This compounds the number of convictions and the number of criminals walking amongst us which is the goal, I'm convinced. The more criminals the better--they are easier to control.

16 January 2013

Holiday Lull

Things seem to be picking up in criminal court now that the holidays are over. We have had a little lull in criminal charges being filed. Whether this is for the reason that most law enforcement has been on vacation or they have felt the Christmas spirit is undetermined. It is unlikely that the level of crime itself has dropped; it is possible everyone has been so busy they just didn't notice. But it would appear that all are back to work now watching diligently for lawbreakers and other malcontents. Associate District Court in Jasper County was busy this morning and it was not the usual run of the mill charges such as OWI, assault, domestic assault, driving under suspension or shoplifting at Walmart. One defendant was in court for stabbing someone-a rather unusual occurrence in Jasper County. A second defendant was charged with counterfeit money which is very unusual. Although being on the Interstate, one would think that passersby would be using the counterfeit stuff here more than we see. There is the occasional drive off from a gas station usually by someone living in California or some other far distant land where an intrastate arrest warrant will never appear. Once the pot smokers and the driveoffs bond out and disappear they seldom return to court and face the charges. That appears to them to be a satisfactory disposition of the case since they verbally announce their intention of never returning to the State of Iowa or if they do return, doing it surreptitiously. Unfortunately I-80 flows from New York City to San Francisco and Iowa can be difficult to miss. My advice to them would be not to drive a rental care and not to rent a car with California, Washington, Colorado, Arizona, or Nevada plates. We also have a slough of new deputies and policemen in the county who, being really green, see it as their duty to maintain law and order for the protection of the citizenry not realizing, of course, that it is the citizenry they are citing or arresting. Again we make the distinction between those charged with a crime and those not charged with a crime. Committing a criminal act doesn't count as long as the person is not charged.

15 January 2013


I recently came across a quote from Romain Gary: "The Americans cannot tolerate the idea of a problem without a solution." This explains much about us and exemplifies our national character as well as anything might. As with many things, it can be a strength and it can be a weakness. Problems, as they may be defined, may or may not have a solution. It begins with the definition of a problem and this varies from person to person. What is a problem for one person may not be a problem for another. If we see a problem we try to fix it, but I do not think this is limited to Americans. It is a human trait. Gary is correct, however, when he infers that Americans seem obsessed with the idea that anything defined as a problem has a solution and that solution will be imposed. Unfortunately, every solution creates a problem for someone. Solutions to problems create problems. We learn today what the President proposes as a solution to the incident at Newtown. Whatever that may be, it will create problems for some. We have dealt with crime in this fashion since America was founded. We are determined to stop crime or, at least, minimize it. Regardless of these efforts, there will always be crime. For one reason, crime is simply what the legislature wants it to be. Secondly, it is a statistical certainty that there will be burglaries, robberies, sexual assaults, murders, thefts, ad infinitum. These activities will never disappear from the planet. They have always occurred and will always occur. There are those among us who will commit what we all consider to be criminal acts. There is no solution. This fact, that there is no solution, escapes the legislature as well as law enforcement. This is no reason not to prosecute those committing crimes, but the acknowledgement of the fact that there is no solution would effect the thinking of those who make the laws and those who enforce them. Rather than increasing continually penalties for crime in order to stop crime, penalties might return to a reasonable level. It makes no sense and is in fact cruel, ineffectual, and wasteful to place our citizens in prison for as long as life for making, using, and selling controlled substances. It is clear that there have been, are, and always will be those who use illegal substances. Maybe we should declare it a non-problem and cease attempting to solve it.

14 January 2013

Reporting an Injustice

Once upon a time a man bought what he thought was some very good marijuana. As it turned out, it was of very poor quality. It must have been that the man did not know where to find his source, or the name of his source, or possibly, his source had left town; but for whatever reason the man thought since he was cheated, he should report the matter to the authorities, which he did. The man requested that he be able to fill out a report and that the police investigate the matter; or at least make it right in some fashion. Various officers on duty at the time consulted among themselves and determined that it would be appropriate to offer the man some money if he would buy some marijuana from either the person who sold him the bad marijuana or some other person who had marijuana to sell. This they presented to the man with the additional enticement of $25 if the man would buy some marijuana so the police could make an arrest of a marijuana dealer. Having been a slow day, this would give the police something to do- an activity to while away the hours before they went off duty. The man was not about to turn down $25 so he readily agreed to buy some marijuana so the police could arrest either the culprit who had cheated him or some other source. This was to happen quickly, the officers must have been bored for they were to do the buy the very same hour that the man reported the injustice. A requirement for a controlled buy is to pat down and search the person making the buy so that the officers can later testify that the person making the buy had nothing on him other than what was supplied by the police. Unfortunately for the man, he had not thought he should dispose of the bad marijuana before reporting the matter to the police; but in any event, the man had the bad marijuana in his pocket when the police searched him for purposes of making the buy. The result of the man's encounter with the police was not what had been intended. The man was arrested and put in jail charged with possession of marijuana and the buy was forgotten. The police saved $25, they were able to arrest someone, and all was well. No surveillance was required, no paper work and authorization was required to obtain the $25, the task force was not notified. It was a good day for all but the man who spent money on bad marijuana and then arrested. He lost all way round.

13 January 2013

Involuntary Servitude

Section 23 of Article I of the Constitution of the State of Iowa reads as follows: "There shall be no slavery in this state; nor shall there be involuntary servitude, unless for the punishment of crime." I am not sure of the distinction between slavery and involuntary servitude, but I expect a distinction existed at the time the Iowa constitution was written and adopted. What the founders of this state did not foresee was, everyone has become a criminal, and therefore, subject to involuntary servitude. This may seem an exaggeration but there is nothing illogical nor irrational about this statement. One can not go about one's business on any given day without committing a crime. Traffic violations are crimes. Without including traffic violations, the statement probably is an exaggeration; but the fact remains-a person is subject to involuntary servitude in this state as punishment for crime. Involuntary servitude may have meant the forced labor, imprisonment, or peonage of a person for the satisfaction of a debt. A criminal offense necessarily means a debt to the state in the form of court costs, fines, dare fees, law enforcement initiatives (whatever they may be), and repayment of court appointed attorney fees. We have managed to avert the literal interpretation of involuntary servitude by declaring that a person does not go to jail for failing to pay the state its due, the person goes to jail for failing to follow a court order. To those who go to jail, this is a distinction without a difference. It really doesn't matter whether a person goes to jail because he didn't pay or because he failed to do what he was told to do. Additionally the state will take the driver's license of those who do not pay. This was meant to ensure that everyone pays their fines, court costs, etc. It does not; it means that numerous people drive without licenses, ergo committing more crimes. Ironically as a few activities are no longer considered criminal such as mixed marriages and homosexuality, they are replaced by other activities. We now have hate crimes, violation of civil rights, theft of services, and numerous others. It seems we must have criminals and lots of them to make the rest of us feel good about ourselves. And yes we do have involuntary servitude--its call Prison Industries. True, most who work in and for prison industries, or are farmed out, would rather be working than sitting in a cell, but involuntary servitude it is. Because it is a preferable alternative does not exempt it from what it is.

11 January 2013

Sex Offender Registry

The Iowa Court of Appeals has fended off another attack on the sex offender registry in State v. Iowa District Court for Story County, No. 2-998/12-0024, filed 9 January 2013. In this case the District Court modified a sex offender registry requirement and the State of Iowa filed a petition for a writ of certiorari asking the appellate courts to find the district court's act illegal--which it did. Having been involved in sex offender registry cases, with a case on appeal at the moment, this issue is of interest. The appeal courts of this state to date have rebuffed all challenges to the sex offender registry using various arguments and upholding the legislation passed by our esteemed legislature. It is clear to me being familiar with many judges and various district courts in the fifth judicial district that there is a conflict between the district courts and the appeal courts on the issue of the sex offender registry. The district courts and the attorneys practicing criminal law in them are well aware that the sex offender registry is dysfunctional, mean, and ineffective. As an example, we have had one case in Jasper County where a man was arrested because he lived within 2,000 feet of a school. The sheriff went to his door and arrested him, taking him to jail, and charging him with a violation of the requirement that he not live within 2,000 feet of a school or other place designated in the Iowa Code. The man is confined to a wheelchair. In other instances we have men attempting to live in tents at various spots in the county, because, in Newton, if the 2,000 foot rule applies to you, you cannot live within the city limits. Those of us who are actually interacting with the people restricted from living within 2,000 of a kiddy facility know full well that this law causes an unwarranted hardship on those subject to it, causes an extremely high degree of bitterness from those to which it applies, and is ineffective. In Polk County the registration requirement has created ghettos of sex offenders most of whom are harmless and burdens them with one more impediment to living a normal life which presumably is the goal of all penal legislation (normal meaning crime free). The courts should begin chipping away at these sexual offender registry statutes. This may be difficult considering the level of fear that has permeated the public over sex offenders, but it would be the right thing to do.

09 January 2013

Plea Bargains

As the United States Supreme Court has recently acknowledged, 97% of all criminal charges, give or take a percentage or two, are resolved through plea bargaining. Plea bargaining is the process of dickering with the county attorney over what the defendant should plead to and what the sentence should be realizing that the court does not have to follow a sentencing recommendation. Defense attorneys often initiate plea negotiations early in the process, acquiesce quickly to any reasonably sounding offer, convince their client it is the best deal he will get, and voila, done and out. Never take the first offer. You may not get a better offer, but you don't know that. Tell the prosecutor that you and your client will have to discuss it. If the case is a triable one, or if the client is in jail, don't waive speedy trial. In Iowa the State has 90 days to try a defendant from the date of the filing of the trial information. It is not unheard of that the closer the 90-day deadline approaches the better the offer becomes. Defense attorneys must realize that prosecutors are overworked. Just look at the amount of crime they must deal with--its overwhelming. On the day set for trial, it is possible that a prosecutor may have several trials scheduled. He or she can't try them all. Interestingly, female prosecutors are often more difficult to deal with than male prosecutors. This does not seem to hold true for judges. But back to plea bargaining, at some point during the process defense counsel should tell the prosecutor what his client will plead to and the penalty that the prosecutor should recommend to the court in return for the plea. All the while plan on trying the case. Have it set for trial and do the things necessary to try it. A defendant can always plead guilty, even in the middle of a trial. The court can not not take a guilty plea. No need to be in a hurry about any of this, justice is slow and time is always on the side of the defendant. Don't be afraid to try a case even if you know you will lose. There are several reasons for this. First, the prosecutors learn quickly that you aren't bluffing when you say you will go to trial. Secondly, they may not be giving you anything with the offer they have made. At trial, the defendant becomes a person in the eyes of the court, not just another file. The judge relating to the defendant as a person can often have salutary effects. It is not unheard of that a court give a defendant less of a sentence after trial than it would have with an agreed upon disposition. Third, trials are fun. So, before you take a deal, sit on it for awhile. Maybe you will get a better one.

08 January 2013

Prove It!

We forget that the issue for the prosecution in a criminal case is whether the charge can be proven. Contrary to those who wish to improve the jury system, prosecutors without enough to do, and defense attorneys who don't properly represent their clients, whether the defendant did it, commit the act charged, is not the issue. The issue is whether the government can prove it. Innumerable times I have witnessed defendants plead guilty to some charge, such as domestic assault, where no sensible jury would convict him. Usually this is done after counsel has advised client that it is the best deal he is going to get. Simply because your client committed he crime he is charged with, is not a reason to plead him guilty. You, as his defense counsel, don't care whether he did it or not-the issue is whether the state can prove it. When defense counsel begins to judge his client, to categorize him in the pantheon of evil doers, he is no longer acting as defense counsel. It is not the job of the attorney to see to it that his client gets substance abuse counseling or anger management classes. These concerns are those of social workers who are paid to make us all better human beings. It is not the concern of the defense attorney to encourage the moral improvement of those he or she represents. I have often been harangued by prosecutors stating unequivocally that my client was guilty and needed some sort of therapy. One can only respond to these harangues by the retort of "So what?" "He may or may not need counseling for drug addiction or 24 classes to show him the error of his ways when he pops his girlfriend, but first you have to prove he did it." This response normally brings out the worst in prosecutors who now think you, as defense attorney, are also a moral reprobate and are acting irresponsibly in not acquiescing in the improvement of the defendant as a human being. I often speak disparagingly of prosecutors, but some actually do act like attorneys, not social workers. They understand that if they can not prove a charge, it should be dismissed. There are no stern lectures on the failings of the defendant or that he needs to find some way to earn money without selling illegal substances. They are fully aware that they will get him next time--its just a matter of time. They tell us every person charged with a crime deserves a lawyer so let us give them one. Tell the prosecutor the defendant isn't taking a deal and is planning on trial. You will be surprised how many charges just go away.

07 January 2013

The Right to Counsel

One of the great fictions of our time is that each of us if ensnared in the criminal justice system has the constitutional right to competent legal counsel. After all this is embedded in the Constitution of the United States, 6th Amendment; in Iowa, we find it in Section 10, Article I of the Constitution of the State of Iowa. The courts have uniformly held that counsel means competent counsel. An attorney's Code of Ethics requires that an attorney represent a client diligently and energetically. With all this in mind, one would think that the average citizen brought before the court on a criminal charge would have at his disposal competent legal assistance. Our law schools do their best to provide us with competent and professional lawyers; it is not an easy matter to be admitted to law school or do the work required while there. With all this in mind, one would think that the average citizen would be adequately represented when indicted for a crime. Unfortunately this is not so; and, it is not necessarily the fault of the lawyer. The criminal justice system is just what it purports to be-a system. The list of occupations and professions involved are almost too numerous to mention, but an attenuated list would include the following: law enforcement, lawyers, judges, clerks, jailers and prison guards, probation and parole officers, court administration personnel, pathologists, handwriting experts, DNA technicians, finger print analysts, investigators, and the hangers-on such as drug and alcohol addiction counselors, sex abuse counselors, social workers, psychologists, psychiatrists, victim advocates, all of whom are paid better than the attorney representing the defendant. Court appointed attorneys in Iowa are paid from $60 to $70 per hour to represent a criminal defendant. To someone never having been employed anywhere but Subway, this seems a significant reimbursement. It is not. The legislature is not interested in criminal defendants; they as the general public, believe them generally to be nuisances who must be dealt with as expeditiously and cheaply as possible. Most criminal defendants do not vote, especially if they are felons. Most criminal defendants are indigent. Sure there are those that have money but the general run do not. Consequently, the majority of those brought before the court on charges serious or not rely on what we in the business call "court appointed attorneys" or those hired by and working for the State Public Defender's office. In order for an attorney to make a living at representing criminal defendants, he or she must work his or her butt off. Those working for the State Public Defender's office have more cases than they can properly handle. In either case, the time, effort, and attention an attorney representing criminal defendants can reasonably spend on one client is not necessarily the amount of time, energy, and attention required to aggressively represent. There is no solution. Of all the aforementioned occupations and professions, the criminal defense attorney is the one who does not pass judgment upon the defendant and whose job it is to help the defendant to escape the clutches of all the others-a difficult and demanding job even for the best. The defendant is usually snared somewhere in the system, somewhere in the system someone has grab him to either punish him or rehabilitate him. The unfortunate part of this is that for many defense attorneys this is a perfectly acceptable disposition. Ok, the defendant escapes conviction, but is subject to supervision for two years by a person who decides where he is to live, with whom he can associate, where he can go, and what he can't drink. All the defendant wants is to be left alone. When the defense attorney joins the crowd, which happens daily, and believes that his client should be rehabilitated by therapy, counseling, or supervision, the defense attorney has become part of the system and is representing that system not the defendant.

06 January 2013


The Fall 2012 issue of Sentencing Times reports that as of the 2012 elections 5.85 million Americans could not vote because of felony convictions. The Republicans are winning. Unfortunately one can't blame just the Republicans; the Democrats share responsibility. Prohibiting a convicted felon from voting is discrimination of the most blatant kind; we simply don't call it discrimination. Why is it that a convicted felon can not vote? Are folks who have a felony drunk driving conviction, have been caught producing methamphetamine, or selling crack not subject to the same laws, responsibilities, use the same roads, pay the same taxes as those of us who do not have felony convictions? Or, is it simply punishment? In my view it is simply that if a person will not do what he is told to do, he won't be able to vote. There isn't much more to it than this. It is clear why the Republicans don't want these people to vote; they will not support the idea of being tough on crime and usually they are receiving some sort of government support which indicates they are morally deficient. Morally deficient people should not be given assistance; it merely engenders more moral deficiency. Moral deficiency is loosely translated as those who can not support themselves, who require disability payments, food stamps, housing assistance, free medical care, etc. Those who wish all forms of public assistance be terminated to not know what they wish; and besides, not one dollar of public assistance does not eventually end up on the pocket of those who do not receive any. It is the trickle up effect. I have had the notion at various, idle moments that at some point in the life of this country, the land of the free and the home of the brave, that we will all be required to take our turn in jail. It will be a sort of mandatory thing that all will be required to do somewhat like military subscription was at one time for all men. As more and more of us will become felons, the number of people disenfranchised will increase until the powers that be have just the people they want electing them. They will not be Romney's 47%; they will be, rather, those who have spent their lives acquiring wealth and living in gated communities having contact with the rabble only when shopping. There is nothing about this process that is catastrophic or sudden which would draw the attention of those paid to report the news; it is incremental-slow and steady. Every legislative session we create more felons; it is an annual event. There must be a big poster nailed somewhere on the halls of government reminding those elected to do our business that it is time to disenfranchise another group of citizens. Elections have become way too costly; too many people must be convinced to vote for a particular person. The fewer people who can vote, the less it will cost and the less time and effort it will take.

04 January 2013

Education Reform Part II

I am reminded of what Carl Sagan said of a person, probably a theologian, that he was educated beyond his intelligence. This idea has stuck with me. Aristotle, and those subsequent, when putting together his manuals had no intention of publishing them in a paperback version allowing the public access. Not only did the general public have no business reading them, they would not have understood them if they had. We seem to have this underlying assumption that mankind has changed in the last two thousand years. Not so. Public schools in American throughout their history have had the job of acculturation not education. An educated high school graduate may be, in some rare instances, a happy by-product. We, as a civilization, meaning the western industrial world, have learned to operate an advanced, complicated society with idiots. Very little thought needs to be given to one's job. McDonalds and Walmart are only two examples. Once a few elementary duties are learned, nothing further is required. The further up the job echelon a person travels, the more duties one must master. No thought is required once those duties are learned. The surest method not to be hired for a position is to be over qualified. The assistant manager of Burger King has no intention of hiring someone more intelligent than him or herself. I have spoken often of the myriad of rules governing our lives. The number of rules, regulations, and laws enacted by our various governments and administrative agencies are numberless. This plethora of rules are enacted for one of two reasons: either those enacting them have the opinion that those for whom they are enacted have no ability to think for themselves or they are of the opinion that those for whom they are enacted should not think for themselves. Television and radio merely reinforce this idea. Fox News, CNN, MSNBC, the national news, and the local news all give their audience catastrophic events, accidents, sport scores, or what the weather was today. Radio bombasts either country western music, teenage angst, or ancient rock 'n roll. For a large number of citizens there is nothing upon graduation from high school that requires an education; so when someone tells a kid that they need an education, it is a falsehood. Just do what your are told and you will get along fine. Although, it would be beneficial if they could put a sentence together and speak with some semblance of grammatical correctness.

03 January 2013

Education Reform

It is again time for the annual reform of our educational policies to ensure our children are fit to join the adult world. This wringing of hands is an annual event. We self-flagellate over the poor results of our K-12 institutions of learning. Monumental efforts have been made to improve the education received from No Child Left Behind to continuous testing ensuring progress. The usual suspects are the teachers who are now required to be degreed, certified, and developed. No question there are bad teachers, but they are given a bad rap. It is clear from simple observation that many, if not a majority, of parents are themselves uneducated, uneducable, unconcerned giving only lip service to the idea that their children should have an education. These parents can not put together a grammatically correct sentence, have not one iota of reading material in their residence, and view the world as demonstrated by their favorite TV programs. The only discernible effort made by these parents is to schlep their children to various sporting events from the age of three where they complain to other parents that the coach practices favoritism and their kid doesn't get enough playing time or become irate at a referee or umpire who inspires an emotional tantrum. If parents don't care, the kids won't care, and the teachers will not succeed. It isn't the fault of the teachers. One can attend a school program to immediately realize that the parents and extended family of the children performing view the proceedings little differently than sitting in their living rooms, watching TV, and drinking a beer. During warm-day events such as commencements, a rather important event in the life of a youngster, the audience is dressed for the beach. More importantly, there will be a graduation party where the parents may go so far as to remodel their home; set up a collage of photographs showing their new high school graduate from birth to graduation; and invite all and sundry to celebrate their kids accomplishment. The photo array will exhibit the various athletic endeavors of the new graduate and have the usual stern visual display of the boys and the I'm-so-beautiful attempts of the girls. Whether the child can actually put a sentence together is irrelevant. Not one in ten of these newly graduated scholars are capable of having a conversation with an adult nor form an opinion based upon anything other than what they have been given. It is all rather discouraging if you believe that these children are capable of being educated which most are not.

02 January 2013


Little has changed over the centuries as to proof of a crime committed. The percentage of criminal defendants convicted of the crime charged is most often the result of a confession. I have often wondered why people who have committed crimes, and also those who have not, readily confess their involvement. It shows a distinct lack of character. Some would argue that criminals have poor character and we should expect nothing more than immediate capitulation. Embezzlement is an interesting example. Those who embezzle from their employer will be caught eventually. It is a certainty. Those who might escape notice are those who embezzle a little, and then quit; but this happens only rarely. Most embezzlement begins small, little amounts here and there and then over time increases until it is impossible to cover the theft. Almost without exception the embezzler admits to the crime upon confrontation. Those who use illegal drugs are another example. Time and time again, a person's vehicle will be stopped by law enforcement and upon the question of whether they have anything illegal in their vehicle, the person in the vehicle immediately blurts out that he has drugs either on his person or in the car. Or with a knock on the door of a residence, the same question is asked with the same response. It would almost seem that the person using or having possession of the illegal substances invites criminal charges to be filed. Without this immediate acquiescence many fewer convictions would result. Innumerable times defense counsel is confronted with a defendant who has confessed his sins. There is little help for him. Without the confession, the defendant would normally have some sort of defense to the charge, i.e. "I didn't know it was there.", "It was the other guy's dope.". But no, the response might as well be, "Take me to jail, I did it." I am sure there has been much written on this subject. Possibly forensic psychologists have the answer. More than likely it is a combination of fear, atonement, and stupidity. In the land of atonement, the proliferation of 12 step movements, confessing one's sins and asking forgiveness for past transgressions has become the norm. "Confession is good for the soul" has morphed from a religious practice to a recovery complex. Fear is easy to understand, but misplaced. One has more to fear by confessing than by not confessing and maybe this is where stupidity comes in. Of the three factors recognizable in confessions, stupidity is not correctable. One can not be trained, educated, or induced in any manner, not to be stupid. Without stupidity we criminal defense attorneys might starve so I guess we shouldn't complain of it.