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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?



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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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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