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.

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.

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.