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New Criminal Legislation for 2012
Its July and that means new criminal legislation. There is not much this year but here is a link to a chart that should help out. Thanks to Kathy Ingram for putting this together this year: Link to new legislation.
 
National Defense Auth. Act - What the Hell?

ACLU-

As Congress considers the National Defense Authorization Act (NDAA) for the 2012 fiscal year, a handful of senators have turned the bill into a vehicle for dangerous provisions that would authorize the president — and all future presidents — to order the military to pick up and imprison people, including U.S. citizens, without charging them or putting them on trial.

Earlier this year, the House passed its own version of the bill, with an even smaller group of members pushing for inclusion of a provision that would authorize worldwide war, and worldwide imprisonment, in virtually any country where a terrorism suspect lives, even here in America itself.

Now, both houses of Congress are now rushing to come up with a joint version and rush it through Congress within the next week or two. The "Big Four" leaders of the Senate and House Armed Services Committee are huddling behind closed doors and may very well spring a new bill on Congress, once again without so much as a hearing.

The president isn't the one asking for this legislation – in fact, the White House has repeatedly threatened to veto the bill over its concern for indefinite detention provisions. And, the Secretary of Defense, the Director of National Intelligence, the Director of the FBI and the head of the Justice Department’s National Security Division have all said that the indefinite detention provisions in the NDAA are harmful and counterproductive.

The provisions – which were negotiated by a small group of members of Congress, in secret, and without proper congressional review – are inconsistent with fundamental American values embodied in the Constitution. Fundamental American values and fundamental freedoms are on the line.

 

** What is Obama going to do?*

 
My Friend Ahmet

By Steve Warbasse
November 30, 2011

My friend Ahmet was of pure Turkish descent-so pure in fact that a family member in Turkey did him the favor, when he was a younger man, of successfully fronting up the paperwork with the Turkish bureaucracy so that Ahmet could enjoy Turkish citizenship. Upon Ahmet's next pilgrimage to Turkey, he found that his new Turkish citizenship entitled him to serve in the Turkish army. "Don't worry," the Turkish government official told him. "It will only be for two years, and anyway, you will be an officer."

Ahmet caught the next plane out of Turkey. Thus ended forever his visits to the country of his ancestors. The arena in which Ahmet chose to fight was the criminal court system, specifically as a state Public Defender in my old state judicial district comprised of six counties that included the cities of Cedar Rapids and Iowa City. And fight he did. Gallantly and with a flair.

I broke a lot of bread with Ahmet through the years ... and tipped a lot of glasses with him, too. That little revelation gives away the fact that Ahmet was not one who could have been characterized by others of his faith as a devout Muslim. The fatalistic aspect of that faith on the part of some was not comfortable for him. It is written? The only things written, as far as Ahmet was concerned, were the first ten amendments to the Constitution of the United States of America and the appellate court decisions interpreting those amendments. But his faith was his faith, and he reconciled everything in some way. Many of Ahmet's clients were some of the most detested people in the state at the time he worked for them. They had only one person on their side in the face of the overwhelming machinery of that state's government. Ahmet. He was on their side in a particularly implacable way. This was not because Ahmet loved them, although he did have a soft spot for some. Rather, it was because Ahmet did sincerely love their rights.

He would brake no violation of those rights. If he could not make a deal turning life into twenty-five or ten into five, his clients got a trial by jury, as was their right. Never did he plead somebody guilty when there was nothing to lose with a trial. As a consequence, he lost often--no disgrace when the table is tilted that much. He carried on relentlessly nonetheless. Every once in a while, he would get a "Not Guilty" that was a real stunner.

 This is a recent newspaper photo of Ahmet advising one of his clients in open court, one of many such photos. The intensity. Always that intensity. I loved to needle him about his newspaper stardom and how many among the citizenry hated him more than they hated some of the people he represented. The young man in the center, Ahmet's client, had just been sentenced to fifty years for allegedly killing a three-month old baby. Rotational head trauma. Inflicted. Fifty years instead of life was a victory for Ahmet.

However, Ahmet was not a one-dimensional character. He had read more than a book or two on subjects other than the law. A Muslim Renaissance man. But in his area of expertise, I never met his equal. If I ran one of my problems past him that involved one of my own criminal cases, he never failed to provide me with the name of a helpful appellate court decision and many times a citation to the book and page number, too. His head was crowded with knowledge.

There was also wisdom in that head, too. Ahmet knew from long, hard experience that everyone lies. The prosecutors lie. The police lie. Judges lie. His clients lie. Witnesses swear up and down to tell the truth, and then proceed to lie with impunity. We all lie. He once startled me by observing that we are all most adept at lying to ourselves. We all could pass lie detector tests while telling lies to ourselves. I now believe that Ahmet lied to himself in his belief that he could continue doing what he did in the way that he did it forever. That is one lie that I told myself and ultimately came to recognize for what it was. Ahmet never did. Even had he, I do not think he would have been capable of abandoning the Bill of Rights to the care of somebody else in that office and heading south to put his feet up.

Sometime during the night of Saturday, 26 November, Ahmet died in his sleep. Ahmet Gonlubol, a Muslim in America. I am profoundly proud to have known him. I do so hope that he is a warrior at rest now in the bosom of Allah.

Come celebrate the life of Ahmet Gonlubol Click here for details

 
Our Take on Anderson vs. State

Anderson vs. State is not limited to electronic monitoring or home detention. We believe that  it applies to almost all probations where your client is supervised by the Department of Correctional Services.

 

Here are our thoughts if your client’s Level Two probation (Iowa Code section 901B) is revoked:

Your client should get jail/prison credit from the moment he/she is sentenced to probation under the supervision of the Department of Correctional Services. This includes what we call “street probation.”

The prison should give credit for time served but that time comes off the back end of the sentence (discharge date) and we’re uncertain if earned credit is automatic.

If your county  has a Level I probation but has some type of compliance check by the Department of Correctional Services or if there is a supervision fee, we believe that probation is actually Level II according to 901B and your client should get credit for time spent on probation if their probation is revoked.

Other thoughts:


If your client has served the maximum time of sentence on probation, maybe a Motion to Discharge from Probation is in order citing that the client has discharged the original sentence.

Courts may start to impose lengthier sentences on misdemeanors to avoid client’s discharging sentences within 30 to 90 days. You may see more 1 to year suspended sentences. (Until this statute gets changed - probably around January)

We believe that there are very few counties which truly have a Level I probation.

We're not sure how the Court will deal with a probationer who abscounded. Our guess is that the time will be tolled much like parole cases.

A few forms:

Motion For Credit For Time Served

Motion to Discharge Probation/Sentence

Read more...
 
New Fire Investigations Policy
By Brian Farrell
Iowa Innocence Project

Following several months of discussions with the Innocence Project of Iowa (IPI), Director Ray Reynolds of the Iowa State Fire Marshal Division (SFM) formally adopted a new policy related to fire investigations on Tuesday, July 5.  Most significantly, the policy provides that SFM investigators should be guided by National Fire Protection Agency standard 921 (NFPA 921), which is currently considered to embody the best practices for fire investigations. It also provides that investigative reports will be submitted for supervisory review and retained if a criminal prosecution results.  Finally, the policy provides that if SFM personnel become aware of convictions based on investigative methodologies or forensic science that has been invalidated, they are to report their opinion to the director.  If the director concurs, s/he will provide information describing the questionable methodology/science to the prosecuting attorney and offer consultative services to determine whether newly available methodologies/science would yield exculpatory evidence.

The full text of the new SFM policy is available here.

A joint press release from IPI and The Innocence Project commending Director Reynolds and the SFM Division for the adoption of this policy is available here .
 
Kentucky vs. King

In this recent U.S. Supreme Court case, Kentucky v. King, the police were after a drug dealer after he fled from a controlled-buy transaction.  The dealer entered some apartment but the police were unsure of the unit number.  As the police got closer, they could smell marijuana coming from a nearby apartment.  Instead of posting an officer nearby and applying for a warrant, they decided to bang on the door, shouting “Police!”  Hearing some rustling inside, the police broke down the door so evidence could not be destroyed.  The occupants were arrested on drug charges and they later challenged the legality of the police entry and search.  (As it happens, the dealer the police were trying to capture was found in another apartment.)

The lower courts have generally frowned on what they describe as exigencies manufactured by police conduct, but the Supreme Court has now overturned those lower court precedents by a 8-1 vote.  In dissent, Justice Ginsburg asked the right question: “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”  And the unfortunate answer to the question is, a lot less secure.  

 
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