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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.

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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.

Sometimes.

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

Sometimes.

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.
 
There is Life on Mars, the Supreme Court Rules
By B John Burns
June 25, 2014

In today’s decision in Riley v. California, a unanimous Supreme Court went way beyond simply holding that law enforcement must obtain a warrant to examine the contents of a cell phone taken during a search incident to arrest.

Cell phones, Chief Justice Roberts announced, “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

Roberts’ statement is an extraordinarily Earth-shaking pronouncement, even from this activist Court.  Scientists have debated from the beginning of time whether (1) the climate on Mars could support life, and (2) whether there is, or has been in its history, any life on the Red Planet (in the form of single-celled organisms).  I am unaware of any prior written decision of the Court taking a position on the subject, especially speculating that life on Mars has evolved to a point that Martians have traveled to Earth.

I’m still shaking.
 
Justice on OUR backs

By B John Burns
June 17, 2014

Iowa Code Section 709C was a bad law. By now, pretty much everybody agrees. Our legislature agreed this year, and in May Governor Branstad agreed by signing a bill repealing 709C and replacing it with Iowa Code 709D, which everybody agrees is a better law.

Both provisions deal with the transmission of the HIV virus. The old law was written when we knew a hell of a lot less about HIV and AIDS. What it said is that if you know you’re positive and you engage in intimate contact with another person, you’re guilty of a class "B" felony. It was a defense if your partner knew you were HIV positive.

Nick Rhoades pleaded guilty to a charge of violating §709C when he had sex with another individual in 2008 without informing that person that he had been diagnosed as HIV-positive. By 2008, Mr. Rhoades had undergone three years of treatment and was informed by his physician that his viral load was nondetectable. Under the plain language of the old §709C, this wasn’t really a factor, so he pleaded guilty. Originally, he was sentenced to 25 years in prison. Ultimately, the district court reconsidered and suspended his sentence. Nevertheless, he carried a conviction of a B felony.

The Supreme Court ruled in his favor last Friday in Rhoades v. State.

Under the new statute, at the very least, Mr. Rhoades could not be convicted of the "B" felony alternative of the offense, which requires intent to infect one’s partner, or the "C" felony alternatives, which requires reckless disregard of the fact that the partner may be infected.

Mr. Rhoades ultimately challenges his conviction in a postconviction relief petition. Our Supreme Court wants to help him. We all do. He’s saddled with a "B" felony conviction under a bad law, and would not be convicted under the present law.

So Justice Wiggins does a little creative statutory interpretation.

And I’m all for that. Despite what we all hear during the big election campaigns, every once in awhile a little creative statutory interpretation can go a long way towards achieving a just result. What the Court does is to comb through the language of 709C for an interpretation that will help Mr. Rhoades. And the Court finds it.

As I say, to violate 709C the defendant would have to (1) know he or she is infected, and (2) engage in intimate contact. That’s it. Pretty cut and dried. But "intimate contact" is defined as "the intentional exposure of the body of one person to a bodily fluid of another person and a manner that could result in the transmission of the human immunodeficiency virus." That’s not much help. But Justice Wiggins seizes on language in State v. Keane, 629 N.W.2d 360 (Iowa 2011), which defined "could" as meaning that transmission of the virus was "possible considering the circumstances." Under the circumstances HERE, he argues, the possibility of infection was pretty remote.

It works. But how to we make it work for Mr. Rhoades?

Guess.

COUNSEL WAS INEFFECTIVE IN ALLOWING HIS CLIENT TO PLEAD GUILTY TO AN OFFENSE FOR WHICH THERE WAS NO FACT BASIS.

It’s OUR damn fault. Despite the fact that, in Keane, the Court rejected analysis pretty close to what Mr. Rhoades presents in this case, counsel is ineffective for not being the crystal ball gazer. Counsel is ineffective because Justice Wiggins, with his vast experience as a criminal defense attorney, would have done it differently in 2014.

I know I’m sounding like a broken record. And I’ve caught hell for taking this position. "Keep writing that shit," I’ve been told, in a somewhat threatening tone. But dammit, is it possible for the Court to correct its past mistakes without doing so on the backs of defense attorneys who were simply following what was established law?

This time, it’s not just me.  There’s a dissent by Justice Zager, and a concurrance by Justice Mansfield.

“Although we have not said so as a court,” Justice Mansfield writes, joined by Justice Waterman, “I think the reality is that our court has an expansive view of ineffective assistance of counsel. . .In some respects we are using ineffective assistance as a substitute for a plain error rule, which we do not have in Iowa. . .Thus, even as we use the terminology ‘ineffective assistance’ as a tool to review criminal convictions, I think it is especially important that we not appear to be criticizing counsel when we are talking about a legal construct of this court.”

Justice Mansfield joined the majority opinion, but added, “I do so without finding fault in the performance of Rhoades’s defense counsel.”  

Thank you.

Justice Zager’s opinion is much more detailed.  He recognizes the high degree of deference traditionally accorded the strategic decisions of counsel.

“It is easy to see that with greater time and resources,” he writes, “this court could devise a different, perhaps better, defense strategy in nearly every criminal case.  Likewise, in the context of a guilty plea, we have the benefit of being able to hypothesize a different fact investigation, test different potential outcomes, and debate different legal analyses under alternative constructions of the relevant legal standards.  We can then look back and try to reconstruct what was going on in the mind of the attorney when he was advising his client to consider entering into a guilty plea and what the defendant was considering when making the ultimate decision to enter a plea of guilty to the criminal charge.  But, comparing actual counsel’s performance, given the realities of criminal defense practice, to imagined counsel’s performance under abstract, sterile conditions is not our task.”

The majority based its decision in Rhoades, Justice Zager complains, “on the cold record developed at the guilty plea hearing, without regard to other considerations an attorney might have when evaluating a criminal case.”

I’ve said this before.  I understand ineffective assistance.  I was an appellate defender for nine years.  During that time, I probably raised ineffective assistance claims on every experienced defense attorney in the state, including myself twice.  It’s an error preservation tool.

But, to be honest, WE’RE not responsible for the fact that the law was bad before.

Why even place blame?  If the Court wants to take steps to make justice more just, the Court can do it without slandering the party least responsible for the status quo.

Those of us who operate with the plain error rule will tell you that the standard is so very high that it’s  rare a defendant will prevail using it.  But the Strickland standard is just as demanding, and when the Court decides it wants to improve the law using the ineffective assistance mechanism, the Court doesn’t hesitate to do it.  

Nick Rhoades doesn’t care which mechanism the Court utilizes.

 
Some Friendly Advice
By B John Burns
June 13, 2014

Justice Zager ruled against the defendant today in State v. Putman, a case involving the application of Iowa R.Evid. 5.404(b).  Mr. Putman was convicted of sexual abuse in the first degree for assaulting a two-year-old child.    At issue was the introduction of some child pornography found in Mr. Putman’s residence.  There was a bunch of it.  The State isolated two videos involving the rape of two-year old children following removal of their diapers, as they were most similar to the circumstances of Mr. Putman’s case.

The videos were not shown to the jury.  They were not described in detail.  The jury was informed only of the portions of their titles that indicated they involved the rape of two-year-old children.  They were mentioned briefly at trial.  The judge gave a limiting instruction.  Even the prosecutor reminded the jury of their limited purpose.

The videos were admissible, Justice Zager wrote, because they comprised other bad acts that were strikingly similar to the charged offense.  Thus they established Mr. Putman’s identity as the assailant.  

Some good comes out of Justice Zager’s opinion.  Perhaps the most important pronouncement in Putman involves the level of proof required to admit 5.404(b) evidence, as there seemed to be a split under Iowa precedent.  One view is that the proponent must offer “clear proof” of the commission of the prior offense.  State v. Sullivan, 679 N.W.2d 19, 25 (2004); State v. Jones, 464 N.W.2d 241, 242 (Iowa 1990).  In other cases, however, the level of proof was one factor to be considered in determining whether the probative value of the evidence is substantially outweighed by its prejudicial effect.  State v. Reynolds, 765 N.W.2d 283, 289-90 (Iowa 2009); State v. Henderson, 696 N.W.2d 5, 11 (Iowa 2005).  Justice Zager used Putman to announce that prior offenses must be established by clear proof.  So we have that.

Justice Hecht and Justice Wiggins wrote dissents.  There’s some good stuff in both of them.  Justice Hecht discussed the massive prejudice inherent in child pornography.  Those of us who have handled child pornography trials know that, for all practical purposes, the trial is over once the jury sees the images.

There is some excellent language in Justice Wiggins’ dissent stressing what I have been arguing for years, Rule 5.404(b) should be viewed as a rule of exclusion, not a rule of inclusion.  The language in Justice Wiggins’ dissent may be very useful in making our 5.404(b) arguments, as I don’t think that viewpoint had been rejected fully in Iowa.

One aspect of Justice Wiggins’ dissent, however, is a little bit troubling.  Justice Wiggins expresses concern about prosecutors delving into what defendants are watching or reading to prove their guilt of criminal offenses.  His point is a good one.  Mere writings, he notes, “do not in and of themselves make the writings admissible There has to be some link between the material sought to be introduced and the crime charged.”  Even if Mr. Putman’s collection shows that he has a fascination with this type of crime, “these videos do not offer any indication that Putman was the child rapist on the night in question or that the crime he allegedly did was in the same manner as the acts committed in the videos.”

Agreed.

If prosecutors are allowed to delve into what the defendant is reading and watching to prove guilt of a substantive offense, “people of the State of Iowa must be careful in what they watch or read.  The State can use a person’s reading of the book Lolita to convict that person of underage sexual abuse.  The State can use a person’s fascination with crime shows to convict that person of murder.”

Damn right.

And it doesn’t stop there.  Justice Wiggins builds up a head of steam, and reaches this climactic point:

“I would borrow a phrase from the Supreme Court of Kentucky and declare, unqualifiedly, that citizens and residents of Iowa are not subject to criminal conviction based upon the contents of their bookcase unless and until there is evidence linking it to the crime charged.”

Uh. . . . actually. . .

Actually, the citizens and residents of Iowa ARE subject to criminal conviction based upon the contents of their bookcase – if the contents of their bookcase include child pornography.  I don’t know a whole hell of a lot.  But I do know that.

My friendly advice is don’t have child pornography in your bookcase.  You will have a happier life all around.
 
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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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