IOWA CHAMPION

Polk County/Des Moines back to business, other courthouses remain closed

From the Iowa Judicial Branch website:

The Polk County courthouse in Des Moines, Iowa will be open Monday for regular judicial business.  The courtroom at the Polk County Jail will re-open for regular business to the extent possible.  The Small Claims/Suburban Traffic Court at the Riverpoint Facility will also reopen for business.    (updated 5:00 p.m. June 15)

Other courthouses in Iowa remain closed.  Check the Iowa Judicial Branch website for more information.

Polk County Jail and Courthouse closed due to flooding until further notice

At approximately 1:00 PM on June 13th, 2008, Chief Judge Arthur Gamble Issued the following administrative order from the 5th Judicial District Court in Des Moines, Polk County, Iowa:

Des Moines, June 13, 2008— The Polk County Courthouse and the Polk County Jail Court are closed due to Des Moines City officials' request for a voluntary evacuation of downtown Des Moines. The evacuation is in response to the projections from the Army Corp. of Engineers that levels along the Des Moines River will be close to the top of the levees today. The Riverpoint Small Claims/Suburban Traffic court is also closed until further order.

District Court Administrator Beth Baldwin released an administrative order this afternoon that includes a disaster relocation plan.

A skeleton staff of the Polk County Clerk's Office will operate at the Drake Legal Clinic during normal working hours (8 a.m. to 4:30 p.m.) to receive filings related to essential criminal, domestic, juvenile, mental health and substance abuse matters.

The Chief Judge, senior staff of Court Administration and senior staff of the Polk County Clerk of Court will relocated to the Iowa Judicial Branch Building, 1111 East Court Avenue, Des Moines, IA 50311, beginning Monday, June 16, at 8 a.m. to 4:30 p.m. until further order.

Decriminalization of marijuna in Iowa? Not yet.

I had someone recently ask me if they would get arrested in Iowa for possession of a small amount of marijuana.  The most straightforward answer a criminal lawyer can give is yes.  In Iowa, no amount of marijuana is legal to possess, not even for personal use, medical use, or to feed to your dog. No excuses, whatsoever. 

Now, just like other jurisdictions, police officers in Iowa have discretion to make an arrest.  If a particular officer in a particular situation doesn't want to arrest someone for a burned up blunt in the ashtray, fine, it's his call.  But nine times out of ten, you are at least getting a criminal citation which will result in a prosecution for a serious misdemeanor.  Most of the time though you're getting outright arrested and booked into jail.

Other jurisdictions are not so harsh.  In various States possession of less than four grams or some other low amount is a non-arrestable offense, you may get a ticket like a speeding ticket, but you pay a small fine and you're done.  That is not Iowa.  I have seen people in Polk County get prosecuted for residue in a pipe.  If there is enough "substance" to test, you can be prosecuted. Most of the time, even if that type of case is filed you will be able to work with the prosecutor to get a fair resolution.  If not, those are cases that need to be taken to trial, where the decision to convict is  up to the jury. Prosecutors that take on those types of cases to trial aren't going to have a high success rate.  My experience is that small quantity pot cases are some of the toughest to win for the State.  I'd say on any jury of 12 people at least 3 are occasional or moderate marijuana users.  If the defense attorney can give them ANY reason to acquit their client they will be ready and willing to do so. 

The outright jury nullification argument, however, is not likely to win any cases or gain you any respect from the Court. Besides being unethical, you will always have two or three people who think all drugs, even pot, are the scourge of the earth.  They will vote to convict on almost any evidence of guilt.  As a defense attorney, you have to give the pot smokers a little ammunition to fight these people.  Most of the time your client will be in a situation where you can argue a lack of knowledge or attack "constructive possession": It wasn't my coat, someone else put it in my purse, I was just the passenger in the car etc. If you've got something to talk about, you're alive.

Given the increasing strain on courts and probation personnel, Iowa would do well to adopt this method of handling marijuana cases.  They could put a $500.00 fine on possession and free up thousands of man hours and tax dollars by doing this instead of putting people on probation.  Fewer court appointed attorneys and less judicial resources (judges, probation officers, court clerks) along with a higher fine would be a financial moneymaker for the State.  Unfortunately, I just don't ever see the people that brought you the two-thousand foot law for sex offenders getting around to this issue anytime soon.

Bottom line is, in Iowa you take the risk of criminal prosecution for even the tiniest amount of marijuana.  Be warned, beware.

Judge rules Romona Cunnigham competent to stand trial

A Federal Judge in Des Moines has issued his ruling finding Ramona Cunningham competent to stand trial. The ruling was not a surprise to anyone familiar with the standards for competency in criminal trials.  The trial is supposed to begin June 30th, but (also as expected) an appeal of the ruling may delay the start of the proceedings. 

The judge sums up the situation in his ruling as follows:

...the only issue is whether, despite her condition and regardless of whether it is in her best interest from a medical and psychiatric standpoint, the defendant is capable of assisting in her defense. While the defendant does not want to go to trial and has serious anxiety related to the legal proceedings, a lack of desire to help her attorney is different than an inability to do so...

As I posted earlier, competency is not the same as an insanity, and even if her defense attorney was successful in convincing the judge she was not competent, because the mental health issue raised was one of depression, she would have been treated (in custody) until she was capable of assisting her attorney.  At best you have delayed the proceedings.

Creston Police Chief, Assistant Chief charged with Sexual Abuse

The Iowa Attorney General's Office announced today that two Creston police officers,  Chief James Christensen and Assistant Chief John Sickels, have been charged with Sexual Abuse in the 2nd Degree.

The charge is a Class B felony, and falls under the definition of a forcible felony (mandatory prison if convicted) and a 70% crime (no parole until 70% of the prison term is served - 17.5 years).  Obviously the charges are serious, and it is rare to see such charges against law enforcement officers, but the most interesting thing to me is that both officers are alleged to have made incriminating statements to the investigating D.C.I. agent.  Please refer back my post last week on never, ever, EVER talking to the police.

KCCI has the preliminary complaints on their website: View preliminary complaints and affidavits

Bail Bond and Pretrial Release in Iowa State Courts

One of the most important functions a criminal defense attorney can perform for their clients is securing their freedom pending resolution of the criminal charges they face.  In Iowa, that release is usually done through the bail bond procedure or through facilitating pretrial release with the Department of Corrections.

The United States and Iowa State Constitutions both prohibit excessive bail in "bailable offenses".  Generally all offenses are bailable, up to a certain point in the proceedings.  Iowa Code §811.1(1) lists the offenses that are not bailable upon judgment of conviction (awaiting sentencing).  They are mostly the same offenses that are considered forcible felonies (sex abuse, felonious assault, kidnapping, robbery, first degree arson, first degree burglary) but there are some other offenses listed, particularly drug offenses.  If you are convicted or sentenced on a class B felony Methamphetamine case you will not be permitted bail.  Generally, the rule of thumb is that if a prison sentence is mandatory under the Code, then forget about bail once you've been found guilty or enter a plea. 

Now, a lot of time I hear judges or prosecutors talk about a defendant not deserving anything other than "standard" bail.  This is somewhat of a pet peeve of mine, because there is no "standard" bail.  What those people are referring to is Iowa Code §804.21(5) which gives the judicial council the power to set a bond schedule that will be used in non-forcible felony cases where the Court is not in session.  In some counties (Polk for one), that schedule has morphed into the so called "standard bond".  The amount of bond required is determined by the seriousness of the offense: 

• Simple Misdemeanor:                    $300
• Serious Misdemeanor:                   $1.000
• Aggravated Misdemeanor:             $2,000
• Class D felony:                             $5,000
• Class C felony:                            $10,000
• Class B felony:                            $25,000
• Violation of 124.401(1)(c):            $50,000
• Violation of 124.401(1)(a) or(b):    $100,000

In general the so called "standard bond" is reasonable enough that most defendant's can pay a bondsman to get out.  The people that get outright hosed is the defendants facing felony drug charges.  In those cases the bond will almost never be able to be posted by the average defendant. In any case where bond just isn't happening, so you have to move on to the next step...contacting pretrial release and putting in an application for a bond review.

The Iowa Department Corrections handles pretrial release services in Iowa's various judicial districts. These services are used more frequently in the more populated counties like Polk, where there are significant numbers of cases filed and people in jail wanting out.If you are released through a pretrial release bond, they have for all intents and purposes, posted your bond for you, even though no money changes hand.  The pretrial release officer will take an order to the Judge and once it is signed, you are released to their supervision.   Pretrial Release has various levels of supervision, from the basic all the way up to intense supervision.  The conditions of your release will depend on the charges you are facing and the facts and circumstances unique to your situation.  If drugs or alcohol crimes are involved you will be required to attend some level of substance abuse treatment, there will be regular meetings you have to attend with your supervising officer, and you will have to have urinalysis screens for drugs.  It is always important to look into the defendant's substance abuse issues before delving too deeply into other pretrial release issues.  If the defendant has already been evaluated and there is a recommendation for inpatient drug treatment, you realistically won't be getting the defendant out on any kind of release until you can get that treatment accomplished.  That sometimes requires separate proceedings than a bond review.

There are various things that will disqualify you from a pretrial release bond.  Some examples are, coming back to jail while you have pending charges or previously violating pretrial release bonds in another case.  If those circumstances exist, the defense lawyer can sometimes work with pretrial release directly to address those concerns.  Many people will qualify for a pretrial release bond, but it takes time to interview the defendant, verify information, and come to a decision.  If you can be patient during the process it has the potential to save you thousands of dollars.

If you can't post a bond, and pretrial release isn't an option, you will have to file an application for bond review with the Court.  At the hearing, the judge will listen to evidence from both sides about what the bond should be.  The State will usually try to keep the bond as high as possible because they know that a defendant that is looking at sitting in jail several months awaiting trial is much more likely to listen to plea offers, especially where they will be offered probation.  The prosecutor will usually focus on the defendant's criminal history, or if there is little or none of that, the seriousness of the allegations (more serious charges increase likelihood of flight).  The defense lawyers will usually focus on family connections, ties to the community, work history, need to help prepare a defense, need to receive services such as substance abuse or mental health treatment, and where available, the lack of criminal history.  The judge's ruling can be appealed, but it is on an abuse of discretion standard, so if you lose, just deal with it by attempting to address the Court's concerns and then file another hearing.

If you are able to secure your client's release you will have a client that is (1) eternally grateful, (2) better able to help you prepare for trial.  I will try to run through the basics of pretrial release and detention in Federal Court another time.

No one talks, everybody walks

I have not been posting much over the last couple weeks.  Besides the never ending cycle of work that comes with a criminal law practice, there always seems like a lot of "stuff" to do in May: birthdays, spring lawn care, graduations, etc.  I'm not the only one who's posting with less frequency lately,Houston Criminal Defense Lawyer Mark Bennett has also lamented his spring break from blogging; so I'll dedicate this post to his "Million Dollar" advice.

I have recently had two clients who were fortunate enough not to be charged by the police right away.  There was an investigation that was ongoing so it afforded them time to contact me for advice before charging decisions were made.  In both cases I gave them same advice: under no circumstances do you talk to the police.  The first thing you do is come in and talk to me or another criminal defense attorney. The recommendation to keep your mouth shut doesn't change after our meeting.  The less said the better, especially to the police. 

Normally people (defendants) don't have the luxury of time or the ability to talk to a criminal defense lawyer before they talk to the police.  They come into contact with the police at the same time or very shortly after the suspected criminal activity occurs.  If they are in a custodial situation (arrested or its functional equivalent) and being interrogated, they will receive the all important Miranda warning.

The typical Miranda warning goes something like this:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.

Even the most ordinary, average, law abiding citizen could probably give you that approximate verse. There are few people, however, when faced with the stress of a police officer looking them in the eye and asking them questions, that will actually invoke their rights. 

The reasons people decide that they will talk to the police are varied. People are taught from a young age to obey police.  They think that if they don't talk they will "look guilty". Some people, frankly, are guilty but think they can "out-smart" the officer. Whatever the reason, they talk to the police. This is a bad, bad, bad idea.  The Miranda warning says it all. Anything you say WILL be used against you.  There is no maybe about it.  In all of my years of criminal law practice, if there is one thing that I have learned, it is that a defendant's statements to the police are the most powerful piece of evidence a prosecutor can have.  DNA is fine, but nothing really makes a jury perk up their ears as a defendant who "confessed".

Professor James Duane, has an online seminar that he taught entitled, In Praise of the Fifth Amendment...why I am proud to admit that I will NEVER talk to ANY police officer. There are many gems in the video by professor Duane, but the highlights as to why you NEVER, EVER, EVER want to talk to the police are as follows:

1. There is no possible way talking to the police can get out of being arrested.
2. Even if you are guilty as sin, if you talk to the police you are doing so without any benefit in return. Keeping your mouth shut may increase your chances of working out better plea deal later.  Don't be in a rush to convict yourself.
3. People can sometimes get carried away when talking to the police.  If you are mostly truthful, but exaggerate certain facts, it will be used to crucify you. Tell one lie and you are totally completely toast.
4. You run the risk of giving a false confession.  The Innocence Project has estimated that there incriminating statements were a factor in 25% of all DNA exonerations.  That means that in one out of four cases where a defendant was wrongfully convicted, their own words helped put them in prison or on death row.
5. Even completely truthful information will be used against you. "Sure I never liked the guy, but I would never kill him, and I didn't do this".  That could be 100% true, but all the jury hears is that you hated the dead guy....you have given the police your motive for murder.
6. If the interview is not recorded, the police can "forget" your answers, innocently misrepresent your statements, or lie.  What the jury hears and what you said can be totally different.
7. Even if the interview is recorded, unless you have 100% accurate and total recall of all the details of your life, you will make statements that are somehow inaccurate and they will be used against you.
8. Even if you are 100% truthful, have total recall, give a recorded statement, and don't say anything that would incriminate you...the police may have evidence that is mistaken, unreliable, or false.  The police may have a witness that is 100% wrong either through confusion or lies that tells a story that makes you look like a liar. You are now in worse position for having talked to the police.

Mark calls this concept Million Dollar advice. To Professor Duane, it is the easiest question a criminal defense attorney is ever asked by a client (The police are hear and want to talk to me, what should I do?).  Whatever label we give it, it can never sufficiently express how important it is to invoke the constitutional protections that we are afforded in a free society.  The best way I've found to get people to remember the idea is through humor.

No one talks....everybody walks.

Competency to stand trial and insanity

I've been spending the Memorial Day holiday with relatives so I missed the coverage of Ramona Cunningham's hearing on Friday.  I think most people are under the impression that this is simply a defense tactic to "get her off" or avoid a prison term.  If it is only meant to keep her free, it is one of the worst ways to go about it.

The competency issues raised by the defense are sometimes confused with an insanity defense by the lay person.  The defense of insanity is an affirmative defense to a criminal charge.  The defendant who pleads insanity is essentially saying that, even if I did it, my mental state was such that I am not truly guilty in the eyes of the law.  In Iowa, a defendant who "wins" with that defense is generally still committed to the Department of Corrections for a "treatment" program.  If that program is successful, the defendant would be released.  In the majority of cases the defendant is never released because they have an incurable psychosis.  There are some defendants that are released after years of treatment. When a defense attorney challenges competency to stand trial, it raises constitutional due process issues and it is not a defense to the charge.  It would be unconstitutional to allow a defendant to stand trial that (1) Does not understand the nature of the proceedings against them, or (2) That does not possess the mental abilities to assist in their own defense.  It is really about giving the defendant a fair trial.

In most state courts, as in federal court, if a defendant is found to not be mentally competent to stand trial, they will be ordered to a government run treatment facility, sometimes in a correctional institution, to undergo evaluation and treatment designed to restore competency.  The case will be reviewed every so often to monitor the progress of the defendant. The criminal proceedings are suspended while this process occurs.  The criminal case can be started back up upon the defendant being restored to competency.

Under Iowa law, if the doctors eventually throw their hands up and say "no matter what we do, it will not restore the defendant to competency", the court can order the State to begin a civil commitment proceeding.  The length of the commitment will depend on the potential length of jail or prison term the defendant is facing.  If the defendant is facing a murder charge, they could be committed for life.  If the defendant is facing a less serious charge, like drug charges, theft, or assault, the defendant can only be committed for as long as the maximum prison term they were facing at the time of commitment. 

If Ramona's "tactic" were successful, she would most likely be ordered into an inpatient mental health facility at a federal correctional institution or hospital.  As soon as she was "restored" to competency, she would be returned to Iowa to stand trial.  In the long run, it is extremely unlikely that she would completely escape prosecution if the only thing she is alleging is a competency issue.  Even if she does, it would mean years spent at a government facility.  Given that out come I can only think she wanted to put off the inevitable as long as possible.  My guess is that we see Judge Pratt find that she is competent to stand trial, and the trial set for July.

Iowa's competency statutes can be found at chapter 812 of the Iowa Code.

Kept down by the man

If anyone is wondering if the Polk County Sheriff is starting to panic about the projected operating costs of the new jail, rest assured, he is. 

While I was in court yesterday, I was given a form that is going out to all defendants in criminal cases in Polk County. The form explains the new policy of the Polk County Sheriff and Polk County Attorney regarding the collection of room and board fees for jail time. Defendants are warned:

"Once convicted and sentenced defendants must pay their fees or make arrangements to enter into a payment plan with the Polk County Attorney's Office"..."your wages may be garnished [by] as much as 25% of your net income"..."failure to make arrangements to pay may have other adverse legal consequences"...

Strong language.  I think they mean business.  I have also heard that there is an attorney specifically assigned to these collection efforts.

Now, I don't have a problem with the general idea of making a criminal defendant pay back the harms that he or she has caused in the commission of their crimes.  If you assault someone, you pay their medical bills as restitution, if you are convicted of theft for skimming from the till, you pay back your employer.  That makes sense; one of those life lessons you learn in kindergarten.

The problem I have with this, as with some other "fees and court costs", is that it has become the norm to balance the costs of the entire criminal justice system on the backs of those that can least afford it....The criminals. I thought that law enforcement was one of those things that the government did as a service to its citizens, you know...with taxes.

Some of the fees a criminal defendant can be expected to pay would include (depending on the type of case):

• Probation supervision fee: $300
• Court mandated educational classes (Think anger management, first offender education, adult life skills): anywhere from $70 to $85 per class.
• Jail Reimbursement:  $50.00 per day plus a one-time $25.00 processing fee
• Court Costs: $50.00
• Law Enforcement surcharge: $125.00
• Community service placement fee: $30.00
• Fines ranging from $65.00 to $1000.00 (for most cases) plus a 32% surcharge on top of that

The average defendant can easily come out of the case owing around $1,000 without including reimbursement for court appointed attorney fees or restitution to the victim.  In serious cases, the costs can quickly exceed $10,000.  For a $15.00 no seat belt ticket, prepare to pay $69.80...a total 465% more than the scheduled fine for the offense.

So what. They did the crime, they do the time, right?  Not exactly. If the defendant doesn't pony up the dough they end up getting their driver's license suspended, which causes them to lose their job, which is a violation of probation, which causes them to have to do contempt time in jail, which they have to pay for, but as we already know, they can't....and the wheel goes round and round. 

I talked with an attorney that has been around a long, long time, and he has seen more than one client whose tale of prison and woe started with a single traffic ticket.  The fines were a couple hundred bucks but when they weren't payed fast enough and he lost his license.  He drove (his mistake) and got arrested, which led to more fines, jail time, more administrative consequences to his license, and eventually more suspensions....you get the idea. Eventually he is in prison for driving while barred.

The prosecutors and judges try to keep a stiff upper lip when dealing with these people, after all, they were the ones that drove without a license.  If they can't learn their lesson, what are they supposed to do but throw them in jail?  But why was their license taken in the first place...non payment of a fine.  You have, for all intents and purposes created a debtor's prison. I think if you talked to them away from the court rooms every judge would tell you that this system is broken.  It doesn't need a minor fix here and their, it needs to be completely revamped.  We cannot continue to put people thousands of dollars in debt, take away their means of transportation, and expect everything to work itself out.  It won't.

The Postville debacle

I've postponed posting about the Postville raid until I had some more time to assess the situation. 

For those of you outside Iowa, the Feds (I.C.E.) swooped in at the Agriprocessors plant in Postville, Iowa on Monday for the largest single site immigration raid in the nation's history.  The plant there is the largest Kosher meat processing plant in the world, so the story is chock full of world records.  I say we have the detainees make the largest kosher taco in the world...someone call Guinness!

The topic of illegal immigration is one that I am not about to tackle in any substance on this blog.  To me, the run of the mill illegal immigration case has little to do with criminal defense. I also don't consider myself any kind of immigration lawyer.  If someone came to me with an immigration case, I'd refer them out to someone else. What I know about immigration law is confined to being able to advise my criminal clients with what will happen to their immigration status as a result of a conviction. 

It appears most of the 400 people detained will be deported after expedited immigration hearings.  There will be a couple of dozen that are chosen for criminal prosecution, probably the ones that I.C.E. can verify have illegally re-entered after a previous deportation, or any cases of aggravated identity theft. The people that will probably suffer the biggest prosecutorial hammer in this whole mess are the managers and union leaders at the Agriprocessors plant.    They will be accused of harboring illegal immigrants, conspiracy of one kind or another, and other types of document fraud.  There are also reports that the immigrants were being paid under the federal minimum wage, so there will probably be some hay made of that.

All in all this is more of a political issue than a criminal defense issue. I am not envious of the attorneys in the Northern District of Iowa that will have to wade through the mess of the deportation hearings over the next several weeks.  There will be long hours and not a lot of fanfare, but they are doing a truly admirable job under the circumstances.  I can also say I'm glad to see the progress the Feds have made in dealing with these situations in the most humane way possible under the circumstances.  The last raid in Marshalltown temporarily orphaned some children when their parents were both snatched up and deported.  Some of those detained in Postville were released for "humanitarian" reasons pending their formal hearings. Whether you believe that "there are no illegal human beings" or you are Congressman Steve King, the children shouldn't have to suffer for their parents mistakes.