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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.

Three Justices
By B John Burns
April 7, 2014

There’s this big, beautiful building across the street from the Iowa Capitol Building where they hear the appellate cases in the Iowa court system.  I’ve always predicted that some day that building would be the Louis Lavorato Judicial Building.  It would be good move.  Chief Justice Lavorato built it, and Chief Justice Lavorato played a major role in the reorganization of the courts.  Most importantly, the dramatic intellectual rebirth of the Court that continues to today began during the Lavorato Court.  It seemed only natural to honor him that way.
I’m not pushing for that now.
Within the past week, we celebrated the fifth anniversary of Varnum v. Brien. As time has progressed, the rest of the country has gradually fallen in line, but Iowa was among the first to articulate a constitutional basis for marriage equality.

As we all know, this isn't the first time Iowa has taken the lead in a civil rights issue. The seminal decision of our Supreme Court, In re matter of Ralph, recognized the humanity of slaves well before it took a bloody civil war for the rest of the country to catch up.

So far, there has been no bloodshed over marriage equality. But we have had our martyrs, haven’t we?  Right here in Iowa.
And we’ve had villains, too.  Sooner rather than never, I hope, Bob Vander Plaats will be recognized once and for all for what he is – maybe even uglier than the late Fred Phelps because people actually listened to Vander Plaats’ drivel and based a major voting decision upon it.  But like Phelps, Vander Plaats may in the long run have done more good than harm for the cause of equality.
And, over the past four years, I’ve had a conversation or two with two of the three martyrs.  Both insist  that they would have much preferred to have remained on the Court, to have continued to do their work, and to have retired in the normal course with the thanks of grateful Iowans.  
A hundred years from now, in my view, I doubt anyone alive will be able to name the five other justices who served on the Iowa Supreme Court in 2010 without doing a little research.  But I don’t think history will forget David Baker, Mike Streit and Marsha Ternus.  Along with the other five, they took a monumental step forward – a step taken virtually nowhere else – in the civil rights arena.  And they paid a huge price the following year.
And they were vindicated.  Everywhere.
David Baker, Mike Streit and Marsha Ternus are Iowa heroes.  They should be remembered.
This  is my idea.

Let’s not name a school after David Baker.  Let’s not make it the Marsha Ternus State Law Library.  Let’s not do it that way.

Let’s make it Three Justices.

Like the Sullivan Brothers.  Every town in Iowa should have a Three Justices Boulevard.    Hell, we should change Sheldon, Iowa (Bob Vander Plaat’s birthplace) to Three Justices, Iowa.  Maybe some sculptor will carve a Three Justices monument into the face of Ocheyedan Mound (no longer Iowa’s highest point) – our own Mount Rushmore.

Above all, that big, beautiful building across the street from the Iowa State Capitol Building where they hear all the appellate cases in the Iowa court system – the Three Justices Judicial Building.

Sorry, Lou.
State v. Gines
By B John Burns
March 26, 2014

On Friday, I talked about State v. Ross.  Today, I read State v. Gines.  

In State v. Gines, defense counsel is ineffective in permitted the defendant to plead guilty in July, 2011, to three counts of intimidation with a dangerous weapon, based on law announced in MARCH, 2014.

THAT’S scary.

It’s wonderful that the Court is taking steps toward clarifying the law and protecting defendants.  But once again, it’s doing it on the backs of defense attorneys trying to do their jobs without crystal balls.  You could be taking actions on behalf of your clients today that are fully reasonable under current law, but then three years from now the Court may decide to modify, quite substantially, how the law is interpreted.  All of a sudden there’s a published, permanent decision of the Iowa Supreme Court labeling YOU ineffective, saying that YOU failed to perform an essential duty, pronouncing that YOU were not “functioning as the advocate the Sixth Amendment guarantees.”  It’s an easy way for the Court to correct its mistakes, and the mistakes of the Legislature.  Why NOT dump the blame on the defense attorney – the whipping boy of the justice system?

The remedy announced in Gines in somewhat interesting, too.

Gines pleaded guilty to firing three shots into the Courtside Bar.  In last Friday’s decision in Ross, Justice Wiggins devised a six-part test to determine whether the multiple shots where separate, distinct acts or one continuous act.  Of course, the district court didn’t apply the test when Gines pleaded guilty (and the ineffective trial attorney didn’t insist that the court apply the Ross test).  So there was insufficient evidence in the record to establish that there were three separate, distinct acts.  Now, this is off the top of my head, and I could be wrong about this, but, if the appellate court determines that there is insufficient evidence to support a conviction, doesn’t double jeopardy require that the convictions be vacated and retrial precluded?

That’s not what Justice Wiggins did.  He remanded the case back to the district court to allow the state to make a record establishing the missing elements.  And, if the missing elements cannot be established, we simply vacate the plea agreement “and return the State to the position it had before the plea agreement.  Additionally if this occurs, the State may reinstate any charges or sentencing enhancements dismissed from the first amended information in contemplation of the plea agreement, file any additional charges supported by the available evidence, and proceed against Gines on all charges and sentencing enhancements contained in the first amended information and on any new charges it wishes to file.”


That’s very fair to the State.

Not so much to Mr. Gines’ attorney.
Leaving it to the Finder of Fact
By B John Burns
March 21, 2014

Big win for Patty Reynolds in the Iowa Supreme Court today.  Congratulations, Patty!!

I should leave it at that.  But, of course, that’s not my nature.  And, while I know this is probably going to get me assaulted again at a cocktail party, here goes.

The case is State v. Ross.  Long story short, there are some bad words on the street between Mr. Ross and Milton Howard.   Howard’s walking down the street in a crowd, on their way to a birthday party for Howard’s niece.  Mr. Ross is out on the stoop, but runs in the house when Mr. Howard wants to fight him.  After Howard and his posse wander off down the street, Mr. Ross runs out of the house and starts shooting in the direction of the crowd.  Sadly, one of the bullets strikes and kills Mr. Howard’s nephew, Joevante.

Mr. Ross is charged with first degree murder and seven counts of intimidation with a dangerous weapon.  That intimidation charge is what, in my day, they called “terrorism,” but they decided to give it another name after 9/11.  Mr. Ross is convicted by a jury of voluntary manslaughter and five counts of intimidation with a dangerous weapons.

There are a few issues on appeal, but the big one was whether Mr. Ross was entitled to judgment of acquittal on some of the intimidation counts, and whether trial counsel was ineffective in not moving for judgment of acquittal.

There are alternative ways to commit intimidation with a dangerous weapon.  Half of them involve shooting at a person, causing fear, and the other half involve shooting into a crowd, causing fear.  The instructions in Mr. Ross’ case did not specify individual names, so the Court read it as Mr. Ross shooting into a crowd.

So, it boils down to the question of what constitutes a unit of prosecution, allowing the state to file each unit as a separate count.

Justice Wiggins visits a number of jurisdictions in which the answer appears in statutes or cases.  Some states have devised multi-factor tests to answer the question.  But, up until today, we don’t have a test in Iowa:

“The Iowa general assembly could have said that each shot in and of itself is the unit of prosecution for Iowa Code section 708.6.  The general assembly chose not to define the unit of prosecution in that way.  In other words, THE GENERAL ASSEMBLY CHOSE TO ALLOW THE FACT FINDER TO DETERMINE HOW MANY SEPARATE AND DISTINCT ACTS OF INTIMIDATION WITH A DANGEROUS WEAPON WITH INTENT A DEFENDANT COMMItTED BASED UPON THE EVIDENCE PRESENTED.”  (emphasis supplied).

So we allow the finder of fact to make the determination.  Kind of like what happened in Mr. Ross’ case, right?

But then Justice Wiggin digs into the cases and identifies six “factors to aid the fact finding in determining if the defendant’s assaultive conduct is one continuous act or a series of separate and distinct acts.”  And then he applies that test to the various stories told in the testimony at Mr. Ross’ trial.  And then Justice Wiggins, not the finder of fact, makes the determination that there were only two separate and distinct acts.

And THEN trial counsel is ineffective in failing to move for judgment of acquittal on grounds that did not become available until today, three years later.

You know what I think about that.
Designated Protest Areas
By B John Burns
February 28, 2014

I just finished reading the Supreme Court decision issued Wednesday  in United States v. Apel.  John Apel is a war protester.  He’s thrown blood on the designated protest area ot Vandenberg Air Force Base in California.  He was thrown off the base, multiple times, and told not to come back, at least for three years.  18 U.S. C. § 1382 prohibits the reentry of a military base after being ordered not by someone in the position to give such an order.  Mr. Apel was charged and convicted under § 1382.

He argues that § 1382 shouldn’t apply because he was in a “designated protest area,” that is open to the public.  The Ninth Circuit agreed.  The Supreme Court didn’t, finding nothing in § 1382 that limits the definition of a military base to areas not open to the public.

The Ninth Circuit did not address his First Amendment challenge.  Joined by Justice Sotomayor, Justice Ginsburg expressed First Amendment concerns, but concurred with the majority because the constitutional issue was preserved.  And, of course, Justice Alito had to follow the concurrence with his own one-paragraph concurrence, noting that the Court was taking no position on the First Amendment issue.

The thing that struck me most about the Apel opinion is the revelation that Vandenberg AFD, and presumably other military installations, have “designated protest areas.”  I don’t know if everybody shares this experience, but when I was growing up in the fraternity of boys without dates, one of our weekend activities was “TP-ing” the homes of usually the more popular classmates.  You would buy several dozen rolls of really cheap toilet paper, and create flowing white canopies in their yards.  A light rain before dawn would create an additional effect.

Years later, after I “grew up,” I had a conversation with someone that age.  They still TP the houses, he or she told me.  But there are rules.  Like the Geneva Convention of TP-ing houses.  Where the hell’s the fun in THAT??  One of the rules is that you now get the permission of the victim’s parents before launching the attack.  Permission?  REALLY???  That’s what the designated protest area at Vandenberg reminds me of.

Perhaps the most useful aspect of Apel is the Chief Justice’s treatment of Mr. Apel’s reference to concessions in various Executive Branch publications, including the United States Attorney’s Manual and opinions issued by the Judge Advocate General of the Air Force, that § 1382 requires exclusive possession by the military.    

    Their views may reflect overly cautious legal advice based on division in the lower courts.  Or they may reflect legal error.  Either way, WE HAVE NEVER HELD THAT THE GOVERNMENT’S READING OF A CRIMINAL STATUTE IS ENTITLED TO ANY DEFERENCE. (emphasis supplied).

    I’m going to USE that.
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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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