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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.

Read more...
 
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.

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.

 
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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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