Effective Assistance in Plea Negotiations

By B John Burns
March 30, 2012

I’ve heard a lot of rhetoric about the two March 21, 2012 decision of the Supreme Court in Missouri v. Frye and Lafler v. Cooper.  The Court is clamping down on defense attorneys.  We’re going to have to be a lot more vigilant in plea negotiations.

Hopefully not.

Hopefully, the standards of performance we adhere to after Laflerand Frye are no different than what they were before.  Presumably, neither case told us anything more about how we should engage in plea negotiations than what we already knew.

The underlying issue in both was the same.  Is a plea negotiation a stage of trial during which a defendant is entitled to counsel, and to the effective assistance of counsel?   Granted, there is no constitutional right to a plea deal.  But, like many other non-constitutional rights, such as a direct appeal, if counsel is provided during that stage of trial the defendant is entitled to effective assistance from counsel.

So Justice Kennedy in both cases wrote for a 5-4 majority, holding that where the defendant, to his or her detriment, does not accept a favorable plea offer, and the failure to accept the offer is the result of a breach of a professional duty by counsel, then the Strickland v. Washington test should be applied to determine whether the defendant is entitled to relief.

Justice Kennedy’s majority opinion reflected the realization that our system of justice is primarily founded on the guilty plea, and not the trial,

As one might expect, Justice Scalia wrote spirited dissents in both cases, expressing his displeasure with a system that encourages prosecutors to overcharge in order to bargain down to a fair result, and which often results in the most culpable defendants reaping undeserved benefits and faring better than much less culpable defendants.

What guidance do Frye and Lafler give us in our efforts to provide competent defense?

Show a Little Leg

By B John Burns
February 17, 2012

I was in a conversation last night with someone (whom I will not identify) who bemoaned the fact that I have been noticeably absent from this blog in recent weeks (to which I plead guilty as charged).   As if there was no connection between the two topics of conversation, that person then proceeded to ask me if I thought the Iowa Supreme Court actually expected anyone to watch the live streaming video coverage of their night session next Tuesday, when they tackle oral arguments in the case of Homan v. Branstad.

Believe it or not, I know when I’m being played.  This person is trying to prod me into writing something that inevitably is going to get me into trouble.  That’s been the story of my life since I was in the fourth grade.

Well, here goes.

I don’t know much about Homan v. Branstad.  Maybe if I knew more about it, I would care enough to read the briefs, published on the Supreme Court’s website, and perhaps form an opinion as to how it should come out.  

I know it’s a sequel.  It’s a challenge to Governor Terry Branstad’s exercise of the line-item veto.  I know this came up before in another series of cases, a decade or so ago, and the Court resolved the issue.  I know that one of the parties in  those cases was an Iowa governor by the name of Branstad.
“How can that be?” the youngsters ask.  Terry Branstad took office just last year.  Maybe the Branstad family is like the Bush family – no matter unappealing it sounds, a new one manages to finagle his way into office every generation or so.  Maybe the 1988, 1989 and 1991 Branstad was Terry’s grandfather.

No, it’s the same guy.  And it’s the same issue.

Maybe Stephen Bloom is Right
By B John Burns
January 3, 2012

If you live in Iowa, you probably know that about a month or so ago University of Iowa Journalism Professor Stephen Bloom published an article about our state in The Atlantic.  I received my undergraduate degree in journalism at the University of Iowa (back when the journalism school was still accredited), but I don’t think I’ve ever met Stephen Bloom.

It’s a very long article.  All of the computers to which I have access essentially are museum pieces.  So every time I’ve attempted to download Professor Bloom’s lengthy Atlantic piece, my computer has seized up after a few pages.  So I’ve only experienced the tip of the iceburg.

The clamor among Iowans that followed its publication has been sizable.  I guess Professor Bloom wrote some pretty negative things about Iowa and Iowans, and the responses from an army of writers (among them, apparently, our governor) have been vigorously indignant.

This is what I have to say about that.

Professor Bloom’s article is the tree falling in the woods.  Or at least it WAS.

REALLY.  Who is going to invest an hour or two reading some drawn-out rant about IOWA??  You and me – that’s it. We’re going to read it to see if there’s anything in it about US.  Nobody else – absolutely no one else – gives a shit.  I can guarantee that.  Nobody else on Earth is going to read the Atlantic article and say to him or herself, “Gee, I had a lot of respect for Iowans, but now I changed my mind.”  The entire audience for Stephen Bloom and his rhetoric consists of Stephen Bloom’s mother and his huge ego.

So this is what we did.  Somebody somewhere stumbled across the Atlantic piece, had a mess of free time, and read enough of it to know that this isn’t Robert James Waller or Meredith Willson.   The reader became offended, and sent an email to everyone on his or her mailing list.  Somebody got on Twitter, and somebody got on Facebook.  Then somebody with a blog (some of THEM actually have something to say) took it upon him- or herself to draft a response.  Then somebody else wrote another.  Soon the Worldwide Web was abuzz with reaction to the Atlantic article.

Apparently Stephen Bloom has gone into hiding.  I’ve heard Stephen Bloom recently characterized as the Salman Rushdie of Iowa.  There have been calls for his dismissal from the University of Iowa faculty (as if punishing someone for exercising his First Amendment rights is the way to repair Iowa’s image in the literary world).
National Defense Auth. Act - What the Hell?


As Congress considers the National Defense Authorization Act (NDAA) for the 2012 fiscal year, a handful of senators have turned the bill into a vehicle for dangerous provisions that would authorize the president — and all future presidents — to order the military to pick up and imprison people, including U.S. citizens, without charging them or putting them on trial.

Earlier this year, the House passed its own version of the bill, with an even smaller group of members pushing for inclusion of a provision that would authorize worldwide war, and worldwide imprisonment, in virtually any country where a terrorism suspect lives, even here in America itself.

Now, both houses of Congress are now rushing to come up with a joint version and rush it through Congress within the next week or two. The "Big Four" leaders of the Senate and House Armed Services Committee are huddling behind closed doors and may very well spring a new bill on Congress, once again without so much as a hearing.

The president isn't the one asking for this legislation – in fact, the White House has repeatedly threatened to veto the bill over its concern for indefinite detention provisions. And, the Secretary of Defense, the Director of National Intelligence, the Director of the FBI and the head of the Justice Department’s National Security Division have all said that the indefinite detention provisions in the NDAA are harmful and counterproductive.

The provisions – which were negotiated by a small group of members of Congress, in secret, and without proper congressional review – are inconsistent with fundamental American values embodied in the Constitution. Fundamental American values and fundamental freedoms are on the line.


** What is Obama going to do?*

My Friend Ahmet

By Steve Warbasse
November 30, 2011

My friend Ahmet was of pure Turkish descent-so pure in fact that a family member in Turkey did him the favor, when he was a younger man, of successfully fronting up the paperwork with the Turkish bureaucracy so that Ahmet could enjoy Turkish citizenship. Upon Ahmet's next pilgrimage to Turkey, he found that his new Turkish citizenship entitled him to serve in the Turkish army. "Don't worry," the Turkish government official told him. "It will only be for two years, and anyway, you will be an officer."

Ahmet caught the next plane out of Turkey. Thus ended forever his visits to the country of his ancestors. The arena in which Ahmet chose to fight was the criminal court system, specifically as a state Public Defender in my old state judicial district comprised of six counties that included the cities of Cedar Rapids and Iowa City. And fight he did. Gallantly and with a flair.

I broke a lot of bread with Ahmet through the years ... and tipped a lot of glasses with him, too. That little revelation gives away the fact that Ahmet was not one who could have been characterized by others of his faith as a devout Muslim. The fatalistic aspect of that faith on the part of some was not comfortable for him. It is written? The only things written, as far as Ahmet was concerned, were the first ten amendments to the Constitution of the United States of America and the appellate court decisions interpreting those amendments. But his faith was his faith, and he reconciled everything in some way. Many of Ahmet's clients were some of the most detested people in the state at the time he worked for them. They had only one person on their side in the face of the overwhelming machinery of that state's government. Ahmet. He was on their side in a particularly implacable way. This was not because Ahmet loved them, although he did have a soft spot for some. Rather, it was because Ahmet did sincerely love their rights.

He would brake no violation of those rights. If he could not make a deal turning life into twenty-five or ten into five, his clients got a trial by jury, as was their right. Never did he plead somebody guilty when there was nothing to lose with a trial. As a consequence, he lost often--no disgrace when the table is tilted that much. He carried on relentlessly nonetheless. Every once in a while, he would get a "Not Guilty" that was a real stunner.

 This is a recent newspaper photo of Ahmet advising one of his clients in open court, one of many such photos. The intensity. Always that intensity. I loved to needle him about his newspaper stardom and how many among the citizenry hated him more than they hated some of the people he represented. The young man in the center, Ahmet's client, had just been sentenced to fifty years for allegedly killing a three-month old baby. Rotational head trauma. Inflicted. Fifty years instead of life was a victory for Ahmet.

However, Ahmet was not a one-dimensional character. He had read more than a book or two on subjects other than the law. A Muslim Renaissance man. But in his area of expertise, I never met his equal. If I ran one of my problems past him that involved one of my own criminal cases, he never failed to provide me with the name of a helpful appellate court decision and many times a citation to the book and page number, too. His head was crowded with knowledge.

There was also wisdom in that head, too. Ahmet knew from long, hard experience that everyone lies. The prosecutors lie. The police lie. Judges lie. His clients lie. Witnesses swear up and down to tell the truth, and then proceed to lie with impunity. We all lie. He once startled me by observing that we are all most adept at lying to ourselves. We all could pass lie detector tests while telling lies to ourselves. I now believe that Ahmet lied to himself in his belief that he could continue doing what he did in the way that he did it forever. That is one lie that I told myself and ultimately came to recognize for what it was. Ahmet never did. Even had he, I do not think he would have been capable of abandoning the Bill of Rights to the care of somebody else in that office and heading south to put his feet up.

Sometime during the night of Saturday, 26 November, Ahmet died in his sleep. Ahmet Gonlubol, a Muslim in America. I am profoundly proud to have known him. I do so hope that he is a warrior at rest now in the bosom of Allah.

Come celebrate the life of Ahmet Gonlubol Click here for details

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