June 6, 1944
By B John Burns
June 6, 2014

I happened to be at a seminar in New Orleans 14 years ago today, and slipped out to watch a huge parade coinciding with the opening in that city of the National WWII Museum.  The museum is located there because New Orleans is the home of the Higgins Boat, the amphibious troop carrier that 56 years to the date earlier had brought the Allied landing parties across the channel to the living Hell awaiting them on the French coast.

The parade consisted of a long procession of Higgins Boats -- each loaded to the brim with white-haired Medal of Honor winners from the Second World War.  I don't know that I ever saw a single Medal of Honor recipient in person before that or afterwards, but here were dozens and dozens of them passing in front of me, over a half century after the invasion.

I'm old enough to have grown up in a time when many of the guys you would interact with on a daily basis -- the business owners, the doctors, even the priests -- had been to Europe and the Pacific in the mid-40s.  Often, even to this date, you wouldn't know until you saw it in the obituary the historic role they played, because when it was over they came back and quietly got jobs, built houses, raised children and for some inexplicable reason were able to live out normal and productive lives, setting that horror behind them.

Today is a good day to recognize them.  My guess is that a winnowing number of the Medal of Honor winners that rode by me in that parade in New Orleans in 2000 are still with us today.  Even sadder, it’s unlikely that many, if any, of these guys will be around to mark the 80th anniversary of D-Day.  I counted five obituaries of World War II veterans in today’s Register alone.

These guys literally saved the world.
Harrison and Pretextual Stops Under Iowa Law
By B John Burns
May 7, 2014

What may be the most noticeable aspect of last Friday’s Supreme Court opinion in State v. Harrison is Justice Appel’s dissent.

Harrison is the case in which the Court held that the  Iowa Code § 321.37(3) provision making it unlawful “for the owner of a vehicle to place any frame around or over the registration plate which does not permit full view of all numerals and letters printed on the registration plate,” applies to the name of the driver’s county on the plate and not just the registration numbers.  If the name of the county is obscured, law enforcement has a ground to stop a vehicle. The decision was greeted by the usual chorus of “the Constitution is dead in Iowa,” but I’m not tremendously surprised.  It’s an issue of statutory construction that could have gone either way.  

What Justice Appel did in his dissent, joined by Justice Hecht, was that he expressed some willingness to diverge, under the Iowa Constitution, from the Whren v. United States, 517 U.S. 806 (1996) holding that a pretextual stop does not violate the Fourth Amendment if there is an independent, objective basis for the stop, in the form of a traffic violation.  That would be HUGE.

The district court found that the stop of Harrison was justified based upon the license plate violation.  The Court of Appeals affirmed the stop, but on the separate ground that law enforcement had reasonable suspicion to stop the vehicle based upon an informant’s tip and some corroboration.  The Supreme Court majority, let by Justice Waterman, vacated the Court of Appeals’ reasoning and found that the stop was justified based upon on the license plate violation.  It was not necessary to look at the alternative basis.

Justice Appel recognized that the license plate issue could go either way.  But Harrison was being surveilled based upon the informant’s tip, not because of his license plate.  Under Whren law enforcement can stop a vehicle based upon a traffic violation, even if there are ulterior reasons.  Even if law enforcement did not subjectively realize the valid reason existed.  Justice Appel noted that several states have already broken away from Whren based upon their own constitutions.

Maybe it’s only Justices Appel and Hecht.  At least according to the dissent, the question of outlawing pretextual stops under the Iowa Constitution was not really litigated in Harrison.  If it wasn’t, it SHOULD be.  Study this dissent.  If a couple more justices sign on to this, one of you could make some history.

In a good way.
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.
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