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B. John Burns is Back - In Blog

   It has been eight years and two months since I've written for the state
  public defenders. A lot of things have changed. I was able to say goodbye
  to Bill Wegman, who was my good friend in the beginning of my career and in
  the end (but then there were those tumultuous 90s). We all bid goodbye to
  my old boss, John Wellman, over a period of a year or so -- although it
  sometimes seemed he would never stop battling back. 

  I never did have a chance to say goodbye to my earlier boss, Linda Del Gallo, at the Appellate Defenders Office. I tried to call her on her last day, to congratulate her on her retirement. When I called at 10:30 that morning, she hadn't come in yet. I tried again over the noon hour, but she had left for the day.

I remember when I was in the state system and we talked about how public defenders seemed to be locked out of the judiciary. See how that's changed. I'm certain to leave someone out, but we have Karl Briner, Stephen Clarke, Nathan Callahan and Joe Sevcik in the First District, Kim Riley in the Second District, Jeff Neary, Mary Sokolovske and Todd Hensley in the Third District, James Heckerman and Greg Steensland in the Fourth District, Scott Rosenberg, Doug Staskal and Joe Smith in the Fifth District, Pat Grady, Amanda Potterfield, Fae Hoover-Grinde, Jill Ableidinger and Dave Grinde in the Sixth District, Christine Dalton and J.E. Tobey in the Seventh District, and John Linn, Gary Noneman in the Eighth Circuit.


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.

Happy Birthday Ralph
By B John Burns
July 2, 2014

I know what people say about me (some of it, at least).  I know I’ve been accused of being nothing more than a cheerleader for the Court (by some people – others slug me on the back and grunt, “You keep writing that shit!!”).  And to this I plead guilty.


It’s hard NOT to be a cheerleader for the Iowa Supreme Court.  


What those guys (actually in those days it wasn’t all guys) did in Varnum v. Brien, and what ended the judicial career of three of them, was courageous and earth-shattering.  It sparked a tsunami that in the past four years has swept through an ever growing number of jurisdictions, including the United States Supreme Court.

And I’ve never held back in my praise for the Court’s brazen willingness to scuttle the federal courts’ interpretation of a constitutional right if more protection can be found in its own interpretation of its own parallel provision.

That’s not something new.  It goes all the way back to the very date the Court’s birth.

Tomorrow is the Court’s birthday.

It’s our country’s 238th birthday as well.  But 175 years ago tomorrow, on July 4, 1839, the Supreme Court of Iowa issued its first decision – a single page handwritten order in In re Matter of Ralph.

Ralph was a slave in Missouri.  Five years earlier, he entered into a contract with his owner, J. Montgomery, to buy back his freedom for $550.   He moved to Dubuque (I once had a girlfriend who moved to Dubuque after she secured HER freedom from ME) and worked in the lead mines, but couldn’t come up with the $550, which was a hell of a lot of money in those days.  Montgomery hired a couple of bounty hunters for $100 to bring him back.

But farmer Alexander Butterworth saw the bounty hunters seize Ralph and went to local Judge Thomas Wilson.   Judge Wilson issued a writ of habeas corpus and referred the case to the Supreme Court.  

In the handwritten order, Chief Justice Charles Mason ruled “that the said Ralph, a man of color, is free by operation of law; it is therefore ordered and adjudged that he be discharged from further duress and restraint.”  In the decision, the Court wrote, “no man in this territory can be reduced to slavery.”  Ralph may still owe Montgomery the $550, but “[w]hen, in seeking to accomplish his object, [Montgomery] illegally restrains a human being of his liberty, it is proper that the laws, which should extend equal protection to men of all colors and conditions, should exert their remedial interposition.  We think, therefore, that [Ralph] should be discharged from all custody and constraint, and be permitted to go free while he remains under the protection of our laws.”

The same question came before our United States Supreme Court in 1857 with, unfortunately, a different result.  Unfortunately, it took a bloody war costing the lives of 618,222 Americans to finally get it right.  And, by the way, the Equal Protection Clause, referred to by the Iowa Court in its decision, took effect in 1868, 29 years after In re Matter of Ralph.

I’ll be celebrating THAT tomorrow.
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Criminal Procedure 4A

By B.John Burns 

This reference offers a comprehensive analysis of Iowa criminal procedure. It analyzes criminal procedure, including pre-trial, trial, sentencing, and post-conviction procedure. Provides a comprehensive manual covering all procedural aspects of an Iowa criminal case, from the time you are first engaged to represent a suspected or charged individual, through the final steps of a criminal appeal or state or federal post conviction relief proceeding. Separate divisions review evidentiary issues in criminal trials, constitutional provisions affecting criminal cases, and the representation of inmates in prison litigation.

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