By B John Burns
August 27, 2010

Unfortunately, it’s not a rare occasion for any of us when a client takes the stand and “defends” himself or herself with logic such as “That cop’s a liar.  I couldn’t have been holding a gun in my left hand.  I was holding it in my right hand.”

I don’t think I’ve met Clovis Bowles, an attorney from the Waterloo area.  By his own admission, Clovis has made some bonehead mistakes.  I’m sure there are people out there who can say they never make bonehead mistakes.  I’m not one of them, so I won’t judge Clovis Bowles.

Except for one thing.  And this is for everybody.  When the Des Moines Register hops on an ethics investigation and starts revealing some details that a lot of people would find embarrassing, DON’T COMPOUND IT BY RESPONDING IN THE MEDIA.

When things end up going the wrong way in their cases, a lot of our clients tell us, “I hate to have to do this, but I’m going to the media.”  Almost a hundred percent of the ones who say this are ones who SHOULDN’T go to the media.  Clovis falls within that set.

I’m not going into most of the details.  I was surprised a little that this was even in the Register, since it involved a decision of the grievance commission, and not the Supreme Court.  Since the Supreme Court’s decision is the final one, that’s the one that usually gets reported.  But the commission has recommended that Mr. Bowles’ license be suspended for three years for having an inappropriate relationship with a client, who happened also to have some mental health problems.

B John Burns
July 30, 2010

In a way, it’s a good thing that Justice Baker did not simply come out and find that counsel was ineffective in today’s decision in State v. Fountain.  As you know, I’ve been very critical in the past of the Court proclaiming defense attorneys ineffective for failure to object to what essentially was the law at the time they brought their cases to trial, especially in cases where one could envision a reasonable strategic reason for not objecting.

One such decision was State v. Graves, 668 N.W.2d 860 (Iowa 2003).  Graves’ lawyer was branded ineffective in a published Supreme Court decision for not objecting when the prosecutor (1) called Graves a liar in closing arguments, and (2) asked Graves on cross-examination whether a police officer was lying when the officer testified inconsistently with him.  Trial counsel never had an opportunity to respond, despite the fact that (1) at the time of Graves’ trial, neither of the objected practices (especially the cross-examination question) had been disapproved by the Supreme Court, and (2) I could imagine several very potent strategic reasons not to object to them.  If the prosecutor asks my client, “Is the cop lying when he testifies against you,” and my client answers, “Absolutely,” there is always the outside chance that the jury is going to believe my client. Why SHOULD I object?  Maybe the jury LIKES my client, and when the prosecutor calls him a liar it hurts the prosecutor more than it hurts the client.