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.
By B John Burns
August 16, 2013

    I’ve been a lawyer since 1985.  I’ve known Jon Kinnamon nearly all that time.  Jon won State v. Ragland in the Supreme Court today.

    Jeffrey Ragland was 17 in 1986 when he essentially acted as a cheerleader for two of his friends who got in a fight with another group of boys in Council Bluffs.  One of his friends struck Timothy Sieff in the head with a tire iron, and Timothy fell and died.  The other two boys have been out of prison for years.  The boy with the tire iron pleaded guilty to second-degree murder when there was no limitation on parole, and was out in three years.  He has written letters to the Pottawattamie County Attorney taking full responsibility for the killing.  Jeffrey Raglan, the least culpable, was stuck with a sentence of life without parole.
    For as long as I’ve known Jon Kinnamon, he’s been trying to free Jeffrey Ragland.  Every time I’ve spoken to Jon over the years, he’s communicated a new theory he’s working on for Mr. Ragland.  Several involved trying to obtain some benefit for Mr. Ragland from State v. Heemstra.

    Last year, the United States Supreme Court continued down the path it had been following, invaliding the death penalty, and then some life sentences, for juveniles.  In Miller v. Alabama, 132 S.Ct. 2455 (2012), the Court found that  mandatory life sentences for juveniles, without possibility of parole, was cruel and unusual punishment.  At the time, this seemed like a positive development to those of us who had represented children charged with and convicted of class A felonies.  But then, of course, our Governor stepped in and, in an express and unapologetic effort to derail the impact of Miller, granted wholesale sentence commutations to 38 inmates who would otherwise qualify for relief under Miller, from sentences of life without parole to sentences of 60 years without parole and without good time.  In  Mr. Ragland’s case the earliest he would be released, under the new sentence, would be at the age of 78, within months of the average life expectancy in the United States.  For all practical purposes, it would still be a life sentence.

    Iowa District Court Judge Timothy O’Grady saw that, and granted Mr. Ragland a resentencing hearing, at which he imposed a new sentence of life imprisonment with possibility of parole in 25 years.  Mr. Ragland had done 26 years in prison at that point.  

    The State appealed, arguing that Miller does not apply, because once the Governor commuted his sentence Mr. Ragland was no longer serving a life sentence. The Supreme Court was unanimous in upholding the resentencing, although there were several separate opinions in the case.  Writing for the majority, Chief Justice Cady that a 60-year sentence without parole or good time is the functional equivalent to a mandatory life sentence without the possibility of parole.  Thus, the Governor’s “fix” remains in violation of Miller, and the district court acted properly in resentencing Mr. Ragland.

    Chief Justice Cady cited to both the Eight Amendment and article I, section 17 of the State Constitution.  Mr. Ragland did not argue, and Justice Cady did not find, that there are any differences in interpretation of the two provisions.  One concern that I have is Justice Cady’s finding that Miller is retroactive.  There is some jurisdictional split over that question.  If it is determined in federal court that Miller is not retroactive, and if Ragland comes back, it would be nice to be able to uphold Ragland under the state constitution.

    The Court decided two other cases today in which lengthy sentences for juveniles amounted to cruel and unusual punishment.

    The Ragland decision, however, is a career achievement for Jon Kinnamon.  It’s a good day for all of us.
Hon. Jane L. Kelly
By B John Burns
August 2, 2013

I’m going to gloat a little bit right now.

Today – Friday, August 2, 2013 – the second woman to ever have served on the Eighth Circuit Court of Appeals will be sworn in at the palatial Cedar Rapids Courthouse.

Several people have checked, and as far as we can tell no Federal Defender employee has ever been appointed to any federal circuit court of appeals, at least directly from a defender office.

This is history.  In a year that my office has been besieged by sequestration, furloughs and layoffs, and less than two years after the painful loss of Nick Drees, the appointment of Jane Louis Kelly is an unequivocal and needed bright spot for us.  It does, however, leave a gaping hole in our family.

When you glance through Judge Kelly’s biography, the one unavoidable question is “How did we manage to keep her as long as we did?”  Judge Kelly graduated summa cum laude from Duke University in 1987, and cum laude from Harvard Law School in 1991.  She was a classmate of the President of the United States.  Out of law school, she clerked for Eighth Circuit Judge David Hansen, and then worked briefly at the University of Illinois College of Law.

Then she joined us.  We had her for 19 years.

Judge Kelly was confirmed by the Senate in record or near-record time, by a 96-0 vote.  There was absolutely no question about her competence, her integrity, or her potential judicial temperament.

I’ve already seen articles written by the pundits about who might be in line if President Obama gets another crack or two at a Supreme Court appointment.  Judge Kelly is on every list.

Judge Kelly is one of those people.  A lot like Nick Drees, in many respects.  Like Nick, you can sit and talk to Judge Kelly for hours and not realize exactly how intelligent she is.  She doesn’t advertise it.  She doesn’t have to.  

I have to stop.  I know this looks like I’m saying these things to butter her up for the days a year or two down the line that I appear in front of her in court, provided she actually reads this.  But it’s all true.

This is a BIG day for us. 
Justice and History
By B John Burns
June 26, 2013

SOMEBODY owes Mike Streit, Dave Baker and Marsha Ternus a HUGE fucking apology – June 26, 2013.
John Robertson 1957 - 2013
By B John Burns
April 15, 2013

There was a time before I left the State Public Defender fourteen years ago when I pretty much knew everyone in the system – at least the lawyers.  That has become less and less true as time goes on.

I received a Facebook message from a non-attorney friend last Friday asking me if I had heard that his former brother-in-law, John Robertson, had just passed away.  I had to say that John was someone I really didn’t know, as he had come on board some time after I had jumped ship.

So I’ll say right at the outset that I won’t even presume to be the person to memorialize John.  I’ve looked at Taiyu John Robertson’s Facebook page and there is a long string of tributes from people who DID know him.  Sooner or later, one of them will do him justice on the Iowa Public Defender.com site.  

I realize how trite it sounds, but John Robertson is someone I SHOULD have known.  From all accounts, he was a caring, hard-working attorney.  He was respected by his adversaries.  But he had other dimensions.  He studied philosophy at the University of Kansas.  I have to admire the fact that, on his Facebook page, he characterized himself not as an attorney, but as a writer/poet.  He was published.  He was a proud father to his son, David.  At one time, at least, he owned a Harley.  He lived in Iowa City, and once ran for City Council there.  John Robertson was a veritable renaissance man.

When John joined the Muscatine County office in 2005, the State Public Defender posted on its website a really sweet article about John, published in the Muscatine Journal, entitled “Not your typical ‘pinstriped attorney’”.  Check it out at http://spd.iowa.gov/article.php?story=20050106113432507127.  It tells the story better than I can.

As I say, John Robertson passed away last Friday at University Hospitals from a pulmonary embolism.  Many of you know him.  There will be a celebration of his life on Sunday, April 21 at 1 p.m. at Old Brick in Iowa City.
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