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Get Over It
By B John Burns
April 8, 2015

If you pay attention to these things, last Friday I received an interesting response from someone who goes by the screen name “Billob” to my blog entry taking issue with the suggestion of Justice Waterman in his dissenting opinion in State v. McKinley that public defenders should be held to a lower standard of ethics than other attorneys.

“I don’t get why you’re bent out of shape by this,” Billob shoots back.  “If your concern is that this somehow tarnishes the esteem of public defenders, then, what the fuck? get over it.”

It’s one thing if Billob is a public defender, and his skin is so thick after years and years of suffering the slings and arrows that only a public defender suffers that he’s able to shake it off and ignore the insults and backhanded compliments that are a constant in our field.  And it’s a remarkably manly act, too.  Because if Billob is a public defender, he knows how I handle criticism.  But if Billob was a public defender, I’d probably let it go.

Well, I’ve got a pretty good idea who Billob is.  If I’m wrong, I apologize to everyone.  If I’m right, however, Billob is no public defender.  He did go to law school, and graduated 45 years ago, during Richard Nixon’s first term as President.

But Billob has never represented a client.  He’s never walked into a courthouse as an advocate.  

Instead, Billob parlayed his legal education into a long, colorful career as a pencil-pushing bureaucrat.  So OF COURSE he doesn’t get why we’re bent out of shape by this.  He’s never had the experience of being at a cocktail party hearing “reputable” members of his profession spouting jokes about the competence of people who do what he does for a living.  Right to your face.  He’s never had the experience of reading a published opinion written by a justice who, himself, has never worked in a public defender office that undertakes to describe with apparent authority what a public defender does for a living.  I don’t know if there’s a descriptor for a pencil-pushing bureaucrat equivalent to the phrase  “public pretender.”  I bet there isn’t.

The best analogy I could draw would be if judges and justices were free to hire their own personal pencil-pushing bureaucrats, if they had the financial resources to do so.  The judges and justices who did not would be forced to rely upon the pencil-pushing bureaucrats provided to them at government expense.  Of course, the pencil-pushing bureaucrats provided at public expense would be much busier, and there would be widespread recognition for the fact that judges and justices forced to rely on them would have to get used to a lower degree of competence.  And, if I’m a pencil-pushing bureaucrat worth my salt, I’m going to be snapped up by one of those rich judges or justices who can afford to hire their own.   If I wind up working for the government, then. . .well, you know.

Of course, Billob, you’re not going to get bent out of shape by that analogy, are you?  You’re not going to be concerned about “tarnishing the esteem” of pencil-pushing bureaucrats, are you?  You’re just going to “get over it,” right?

“[I]f conflicts are not automatically imputed to PD’s offices then there are more indigent defendants who can avail themselves of the benefit of being represented by a PD,” you argue.  That’s always been the bottom line, hasn’t it?   The public defender system is the bargain basement of the justice system.  We accept a reduction in quality in exchange for quantity.  And the reduction in quality IS the universal assumption.

“[M]aybe I’ve missed your point,” you acknowledge, “and your real concern is that in practice there is a very serious danger of conflict in so many cases that the automatic bar is needed to protect defendants.”

You DO miss the point, Billob.  Still.  The point is that the real danger arises when it is suggested, in a published opinion by a Supreme Court justice, that a public defender should answer to a set of ethical rules less stringent than those which apply to other attorneys doing the exact same thing.  It is an institutional assurance that public defender clients WILL receive a lower level of representation.  If there’s a reason for an automatic bar in a private law firm, the reason holds the same weight in a public defender office.

And, yes, I am concerned that this DEFINITELY tarnishes the esteem of public defenders.  And, as someone who has actually done the job, Billob, I am NOT going to get over it.

Now, I know that some of you other public defenders out there are going to approach me about this and tell me, “John, you’re getting soft.  This PENCIL-PUSHING BUREAUCRAT came on OUR website and is just ASKING FOR IT.  He’s TAUNTING you.  You’ve NEVER let anyone off this easy.”

I’m guilty as charged of that.  I know where Billob went to high school, so I have to cut him some slack.

By B John Burns
March 20, 2015

One of the memories that doesn’t go away for me is driving home from work some hot afternoon in the early 90s.  I was doing something I never do. I was listening to radio broadcasts of Iowa legislative hearings concerning establishing and expanding the statewide public defender system.

The one that got my attention was a legislator from the Quad Cities.  A licensed attorney, but one who apparently does not do criminal practice.  Rep. David A. Millage was lecturing about the three levels of competence of criminal representation.  The very top echelon is composed of private attorneys in private firms.  Attorneys, like himself, who are the cream of the profession.  The ones who are PAID by their clients.

At the next level are the attorneys who, although being in private practice themselves, take the criminal appointments.  The clients who don’t pay for their services can never expect the same level of representation earned by those who do.

At the very bottom are the public defenders.

That’s pretty much verbatim.

About one-quarter century later, I’m reading last Friday’s decision in State v. McKinley.  Two capable attorneys from the Des Moines Adult Public Defender represented a defendant in a murder case, and discovers that three of the witnesses were former clients of other attorneys in the same office.  They raise the issue, and the district court removes them.  The client appeals.  He wants them.  Two of the former clients object to continued representation by the public defender.

Justice Hecht’s majority opinion is just fine.  Though not having the right to choose appointed counsel, Mr. McKinley does have an interest in continued representation by counsel, who should be allowed to remain “absent a factual and legal basis to terminate that appointment.”  There was no actual conflict here, nor was there the serious potential for an actual conflict in the future.  There was no overlap in time between Mr. McKinley’s case and those of the witnesses, and no overlap in the actual attorneys who represented them.

Mr. McKinley got his lawyers back.

But then Justice Waterman files a special concurrence.  Justice Waterman wanted the court to go one step further and hold, for once and for all, that conflicts facing one attorney in a public defender office are not automatically imputed to the entire public defender office, in the manner that such conflicts are imputed when they involve REAL lawyers in REAL law firms.  It is an issue that has arisen in numerous jurisdictions, with a pretty healthy split.

Like David A. Millage, Justice Waterman is from the Quad Cities.  The language of his special concurrence is not as overtly insulting as Millage’s diatribe of yesteryear.  But it’s pretty insulting.

I don’t have Justice Waterman’s intellect or his work ethic.  The one thing I’ve got going for me is the fact that I’ve actually set foot in a public defender office – every day for thirty years.  I’ve actually got a first-hand impression of what goes on in one of those places.

The Waterman theory boils down to two conclusions.  First, a public defender office is not a “firm.”  Second, public defenders are “government employees.”  The definition Justice Waterman relies upon includes as firms “association[s] authorized to practice law,” “lawyers employed in a legal services organization” and “the legal department of a corporation or other organization.”  Then he turns for support to such eminent sources as the Montana Supreme Court and the Wyoming Supreme Court.

The Montana Court explains that a public defender office is not a firm because, among other things, it has “a single source of clients engaged in a single type of legal proceeding.  The OPD does not solicit clients or accept referrals from the public.  Moreover, the attorneys are salaried employees rather than participants in the profits and revenue generated by a law firm.”  How is any of this different in “the legal department of a corporation or other organization”? 

According to Wyoming’s Court, “there is no financial incentive for attorneys in a public defender’s office to favor one client over another.  The public defender does not receive more money if one client prevails an another does not.”  Now, like I say, I’ve never been in private practice.  Was I dreaming it, or aren’t there “firms” out there that specialize in criminal defense?  Do THEY get paid differently if they prevail?

What Justice Waterman wants is a different set of rules for public defenders.  If we do that, then David A. Millage was right.

Keeping the Streak Alive
By B John Burns
January 22, 2015

After about a month and a half away from reading cases, I just stumbled across the December 19 opinion of the Supreme Court in State v. Lovell.  Lovell is a two-page slip opinion by Justice Per Curiam that the Court ordered to be published, because a point just wasn’t getting across. 

Mr. Lovell pleaded guilty to two counts of incest.  His original sentence was reversed because the district court considered unproven allegations that Mr. Lovell paid for the sex he had received from whomever the family member was that he victimized.  Resentencing was ordered to be before a different judge.

The different judge sentenced Mr. Lovell to the same consecutive five-year terms, for the following reasons:

Well, Mr. Lovell, the problem with your case is, although you have a lack of criminal history, this is extremely offensive, obviously, in the eyes of the law, and in the eyes fo the Court because [the victim] was in a vulnerable position. . . .  In reading the case, she is deparate for diapers for her baby, and then, for sex, YOU’RE GIVING HER MONEY.

Defense counsel then explains that this is what the FIRST judge did, and this is why we’re back here and this case is assigned to YOU.  Well, I’m not relying on that, the court responds.  The offense is plenty bad even without that.  I just noticed it in the minutes of testimony.

Not good enough.  The case gets remanded, again, to a different judge, AGAIN.  Better get it right THIS time, before the Seventh District runs out of judges.
The Grand Finale

By B John Burns
August 27, 2014

I am about a month late in writing this. But I just finished plowing through State v. Short, one of the magnificent decisions released on July 18,the final decision day before the Supreme Court took its Summer break.  The July 18 decisions were like the Grand Finale of a massive fireworks display.

The narrow holding of Short is that under Article I, section 8 of the Iowa Constitution, a valid warrant is required prior to the search, by law enforcement, of the home of a person on probation. This is what the Court held in State v. Cullison, 173 N.W.2d 533 (Iowa 1970) in analyzing the issue under the Fourth Amendment.  In the meantime, however, the United States Supreme Court held in Griffin v. Wisconsin, 483 U.S. 868 (1987) and United States v. Knights, 534 U.S. 112 (2001).that the Fourth Amendment permits searches of probationers based upon reasonable suspicion.  The Iowa Court, however, began diverging from the Federal interpretation of the Federal provision in State v. Ochoa, 792 N.W.2d 260 (Iowa 2010), under the Iowa Constitution.

Over the past decade, as I have noted repeatedly, the Iowa Supreme Court has been prolific in carving out separate paths on a number of constitutional issues from those taken by their federal counterparts.  The eloquence in these decisions has grown increasingly. Justice Appel’s concurrence in State v. Baldon, 829 N.W.2d 785 (Iowa 2013), I said last year, reads like a law review article.

During the 2013-14 Session of the Court, after Baldon, the intensity in the Court’s writing continued to increase, reaching a climax in the July 18 decisions – most notably, Short, State v. Lyle, _____ N.W.2d _____ (Iowa 2014) and, to a lesser degree, State v. Edouard, _____ N.W.2d _____ (Iowa 2014). What makes the more recent decisions particularly interesting is that the other faction of the Court is now battling back.

   Predictably, perhaps, the dissenting voices are the Justices who earned their seats as the direct result of the Court’s carving out an interpretation of Equal Protection that diverged, at least at the time, from the federal interpretation of the Fourteenth Amendment, in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).  The Short decision is one of several in which this happens, but is perhaps the most stark illustration of the ideological battle now raging in the Court.

Justice Appel authors the majority opinion in which he lays down, as he did in his Baldon concurrence, the “established principles of independent state constitutional law.” The federal Bill of Rights, he explains, was based on provisions already appearing in existing state constitutions.  Under the Iowa Constitution, the Bill of Rights enjoys special prominence, appearing in article I rather than being tacked on as a set of amendments.  As the federal courts continue to chip away at the protections afforded under the federal constitution, it is left to the states to step in and maintain rights under their law. I can’t say I’m smart enough to know exactly what Justice Appel is saying when he speaks of the  "aggressive, maximalist character of lockstep approach as [a] 'precommitment’ device preventing independent examination of facts and law,” but I can tell you I agree one-hundred percent.  Uniformity in the application of constitutional principles in a federal system is not necessarily the ideal and, furthermore, is not necessarily attainable. The law enforcement community and the legal profession readily adjusts to the absence of uniformity in interpretation.  State courts should not be required to utilize specific criteria to justify diverging from the federal interpretation of a right, and the employment of such criteria could complicate the Court’s decisions.  By reaching the decision it did in Short, the Court followed the precedent it established in cases such as Cullison, Ochoa and Baldon. 

Justice Cady concurred simply to “emphasize the importance of independently interpreting our Iowa Constitution:”

"As Iowans, we are deservingly proud of a long history of rejecting incursions upon the liberty of Iowans, particularly because we have so often arrived to the just result well ahead of the national curve.  Yet we cannot ignore that our history of robust protection of human rights owes in no small part to our authority within America’s federalist system to independently interpret our constitution, Similarly, we must not forget that the virtue of federalism lies not in the means of permitting state experimentation but in the ends of expanded liberty, equality and human dignity.

   *    *    *

"It goes without saying our decisions have not always been without their detractors. As we pointed out in State v. Lyle, also decided today, ‘[o]ur court history has been one that stands up to preserve and protect individual rights regardless of the consequences.’ _____ N.W.2d _____, _____ (Iowa 2014). Yet, history has repeatedly vindicated, and the people of Iowa have repeatedly embraced, the bold expansions of civil, constitutional, and human rights we have undertaken throughout the 175 years of our existence as a court.  In other words, time has shown that those decision, not unlike our recent parolee search cases, are unequivocally the law of this state.

"Today’s decision is another step in the steady march towards the highest liberty and equality that is the birthright of all Iowans; it will not be the last."

I LOVE that shit!!

Each of the three dissenters wrote their separate opinions. Justice Waterman, in so many words, adopts the Wally Cleaver approach – Gee, guys, are we really supposed to be DOING this?  I mean, the grownups on the U.S. Supreme Court have pretty much TOLD us what the Fourth Amendment means. If we start messing with that, we’re looking at a heap of trouble. Justice Mansfield, the Ivy-Leaguer, cycles through Justice Appel’s principles of independent state constitutional law, and has an answer for each of them. Justice Zager makes all the other arguments.

I imagine that it’s obvious which of the opinions impressed me most. But it is exciting, to me at least, to see the intensity and depth with which this issue is being debated by all of the Justices. It is truly a battle for the soul of the Court.

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