Well, we have several people in jail, a couple having been picked up over the weekend with one holdover from last week. The holdover really feels that he shouldn't be in jail. He wants to plead, get probation, and go on his way. The fellow is insistent that he have a plea offer to this effect. Unfortunately the plea offer on the table is prison which is something the fellow can not understand or either unable to mentally assimilate. Apparently it is not a real plea offer until the plea offer is the one he wants. There was also an issue with bond. The bond is set for cash only which, to his mind, is a serious and unjust breach of the rules. His disappearance for a year and a half should not be considered, especially since he has been employed and has a pregnant girlfriend who needs him desperately apparently. One has to wonder how a person can not accept facts. One must make a conscious effort to ignore them; it is an act of concentration and purpose to say that the ball I'm bouncing is blue when it is in fact red and "I don't care what you say, it was, is and will be blue until I say it is some other color." And, of course, what ever happens to him will not be his doing but his attorney or some other agency conspiring against him. There really isn't enough money to make an attorney want to represent someone such as this, but here we are doing our duty, helping the downtrodden, those without means, and the people in never-never land.

I've been told I need to blog occasionally, so I shall. Yesterday we had a trial in Newton. The charge was possession of a prescription drug without a prescription. Our defense was that he was given the pills, didn't know what they were, so didn't take them. The pills were given to him by someone at a party when he asked if anyone had anything for heartburn. I think the average age of the jurors was 70. So much for having a jury of your peers. There wasn't a person on the jury that wasn't on a dozen prescriptions. Considering the fact that the vast majority of the population has given a member of the family a prescription drug that has been left over from an early illness, the jury was back rather too quickly.

One interesting fact that came out of the trial was the belief of the Newton Police Department that a person is required to have a prescription pill in a prescription pill bottle. I have had other officers state that they require a person to show them the prescription bottle even if it means allowing the officer to drive them to their residence to show them the container. The Iowa Code states that it is a serious misdemeanor to have in your possession prescription medication unless it has been properly dispensed--whatever that means. The Code (155A) says nothing about having the prescription on your person whenever you may have a prescription drug in your pocket. This is another example of how intrusive our laws have allowed the police to become here in the land of the free and the home of the brave.

I had a hearing in Waterloo on Thursday in the case where we are attempting to reduce a sentence from 100 years to 50 years. It would appear that we may succeed. The Black Hawk County Attorney informed me that if we do succeed, he will refer the case to the U.S. District Attorney's office in the Northern District of Iowa. I have had two experiences recently with prosecutors who simply refuse to compromise and who have policies and personalities to fit. When you deal with prosecutors who obviously take what they do personally and any attempt to fight is looked at as a serious offense of itself, the defendant can be in a no-win situation. The prosecutorial view is that we have made up our mind and you take what we offer you or it will be worse. You can either rot in prison for the next 20 years or you can rot in prison until you are dead. And, this is a drug case where there are no victims-where all involved are doing so voluntarily and where the defendant has no previous criminal history. My question is how does a person come to perceive that this amount of time in prison is an appropriate remedy for a victimless crime.

The usual argument you hear is that drugs ruin lives. My response to that is: Prison doesn't? I would suggest that a prison sentence of either 100 or 50 years ruins a life. We have decided that the defendant is expendable and we will put him in a cage for the rest of his life removing him from society. Out of sight, out of mind. This country has plenty of people--those we don't want around, we will put in prison and forget about. There are plenty of replacements.

Judge Mott's court was quick for me. I continued most everything for the reason of the Federal Public Defender's brown bag lunch with Judge Pratt. Judge Pratt seems quite at ease with lawyers which is not always the case with the judiciary. We really didn't learn much other than he thinks there should be more trials and more voir dire by the attorneys. I agree on both counts and will do more voir dire if I ever get back to trial in federal court.

It has been an interesting week. Two trials scheduled this week and two finished. The first trial was in Guthrie County with Mary Benton, the Guthrie County Attorney prosecuting. The charge was felony in possession of a firearm. Judge Husher presided. It was an interesting case. Judge Husher gave my requested instruction that an antique firearm is not a firearm for purposes of the statute, but the State relied on the argument that the muzzle loader in question was not a replica which would be covered under the definition of antique firearm. She apparently convinced the jury and there would have been a conviction but for the fact that one juror refused to convict. He must have been one of those fellows that believe we all have the right to bear firearms. So it was a hung jury 11 to 1 and the County Attorney immediately requested a new trial date which will occur in November. What I need to do now is to establish that a muzzle loader, regardless of its technological improvements, is in fact a replica.

I am always stricken by the fact of the prosecutor taking a loss or a hung jury so badly. It seems in such cases that the prosecutor has some personal interest in insuring that a person go to jail or be convicted of some crime. They seem to take it much more personally that the defense attorneys when the defense attorney has much more to loose. The prosecutor's client doesn't go to jail. This was the case in Guthrie County.

The second trial was today and it was a driving while revoked charge. You may ask why I would try such a thing. Two reasons: First the defendant and two witnesses were to testify that the defendant was not driving the three-wheeler she, according to the deputy, admitted driving. Secondly, the State did not have in its minutes of testimony any co-oberation of the defendant's out-of-court statements. The deputy testified and a motion for a directed verdict was granted. Judge Mott prior to the trial beginning sustained a motion in limine asking the description of the girl riding the three-wheeler from an unidentified party not be allowed into evidence. We were finished by 10:30. Short and sweet.

The quick verdict gave me time to attend the arraignment of my federal client at 2:00 p. m. Seven out of 14 co-defendant's were arraigned.I was required to take my belt off to get into the federal courthouse. This is bull shit.Defense attorneys apparently now have to disrobe to get into the courthouse to defend our clients. I must be mistaken, I thought we were officers of the court.

Court service day in Jasper County. Two arraignments and two new appointments--one waiting for me and another from the people brought from the jail. The person in custody I am currently representing for the same offense as the new arrest. There are a few who really do not mind jail. The judges will not admit of that possibility in that they put these people in jail for the purpose of punishing them, but in fact, it is not punishment so much as a time out to get straight, dried out, or just to visit friends and associates they may not have seen for a time. My currently jail client is of that sort. Not anxious to get out, content to have three squares a day, watch a little tv, and catch up on the local doings in town.

I have one defendant charged with two counts of cashing in stolen lottery tickets. They are felonies. It borders on the unbelievable that cashing in a stolen lottery ticket is a felony--possibly, if they were to win millions, I could see it. But not for $30--give me a break. Sometimes you think that the goal of the legislature is to put everyone in prison. Even The Economist in its last issue wonders why we in America put so many people in prison. After all it is the land of the free.

Judge Brad McCall was in town sitting in Jasper County. I was of the impression that he would not preside here for at least a year in that this is the county in which he practiced, but is apparently not the case. They must be short of judges--vacations must not have been concluded. It is a possibility we may have a second judge from Jasper County. Terry Rickers is one of two finalists for the next opening which must be decided by the 19th of September. It would be a very different courthouse with two district judges after having been without for probably 25 years. A third judge, Judge Joy, will retire at the end of this month and there will be another vacancy to be filled. The three counties that are losing judges are Warrent, Dallas, and Marion, all of which, yet have judges. The second nominee against Terry Rickers is an attorney from Madison County. Madison County does not have a sitting district judge, but they don't have any people either so it really doesn't matter.

Deferred

Was in Marion County Friday for a sentencing. Judge Joy was the judge. He retires at the end of the month and indicates he will not go on senior status. The clerk's office had cookies and a couple of signs up in the library announcing the retirement. I had a sentencing on a theft case (embezzlement). The Marion County Attorney did not object to the deferred judgment. Judge Joy did want enough of a record to support a deferred, but seemed amenable to it once the County Attorney indicated he would support it.

You really don't get a deferred though, without the client doing the work for it. The attorney can grease the wheels with the judge and the county attorney, but it is the client that needs to do the work and present his or her case to the judge in a manner that indicates it will be successful. An attorney asking for a deferred for a client that doesn't deserve it or won't make it reduces an attorney's credibility. You don't ask for sentencing concessions that you know the judge will not give nor think appropriate. I think a key to practicing in court representing criminal defendants is the credibility of the defense attorney pleading for the client. Don't ask for things that you know you won't get. Give an honest assessment of your client and fashion a plea or request that is appropriate to the circumstances. If you know you client is going to prison, don't ask for probation, ask for less time than the judge might give him.

Other than Marion County, the time Friday was working on briefs. We have several matters in the Court of Appeals that all are due about the same time. Will probably need some extra time on the proof brief due the 27th.