By B John Burns
November 30, 2011

 So our good friend Ahmet has decided to sleep in.

That’s Ahmet.  We all know Ahmet.  He works hard.  He plays hard.  From time to time, Ahmet has been known to sleep in.  But this came out of nowhere.

I’ve known Ahmet pretty much from the start.  When he joined the Appellate Defender, 22 years ago, Ahmet was the guy who had worked for Legal Services for some time, so he had the trial courtroom experience.  Several of us, myself included, had started out in the Appellate Defender, and had never seen the inside of a trial courtroom.

So when the rare situation arose where one of us had to do something in the district court, Ahmet was drafted.  Ahmet knew how to question witnesses, and how to deal with judges.

You knew Ahmet.  Ninety-five percent of the time he was soft-spoken and calm.  We used to call him Floyd the Barber, because of his quiet delivery and a very remote resemblance to the Andy Griffith Show character.  But when Ahmet went into battle mode, he was the attack dog.  You could wear a uniform, a black robe, or the shiny black boots of a career prosecutor, and Ahmet was never afraid to go after you (but also have a beer with you afterwards, if you were up to it).  He’d tell you exactly what was on his mind.  When Ahmet was in battle mode, he didn’t pull any punches.

When he wasn’t, he’d give you the shirt off his back.

I’ve got quite a few Ahmet stories from the five years we worked together, but I’m sure your’s are better.  It’s a big loss for all of us.

Sleep well, Ahmet.  We’ll miss you.

Know Your Pals

By B John Burns
November 3, 2011

Justice Brent Appel is a smart man – a hell of a lot smarter than me.  Justice Appel and I went up against each other in my very, very first court appearance, an Eighth Circuit oral argument in front of the whole Iowa Law School in 1985.  And he won.  I’ve debated about whether I should even bring this up.  But I am who I am, so I will.

There’s two things I’d like to say about Justice Appel’s opinion in State v. Pals, other than that it is extremely well written and its dicta holds a lot of promise for people who do what I do, but do it in state court.

The first is that Justice Appel teased us a little in Pals.  He started setting up all these dramatic paths the Iowa Supreme Court might follow to venture away, using article I, section 8 of our Constitution,  from the federal interpretation of the Fourth Amendment.  The Court is not afraid to do this, and it looked like we were going to make some history last Friday.  In the end, however, Justice Appel ruled our way, for the most part, on the facts.

The other thing, and this is the part I’m hesitant to bring up, and I can’t believe I’m the first to mention this, is that Justice Appel confused the hell out of me in Pals.  I look at the first page of the opinion and I see in the caption that the appellant is the State of Iowa, and the appellee is Randall Lee Pals.  I see that the decision of the Court of Appeals is vacated, and that the district court judgment is reversed and remanded.

What does this tell me?  It tells me that the State, the appellant, has prevailed.  So I’m reading through this 40-page opinion, and I’m seeing all this great language about the serious concerns the Court has about police officers who conclude routine traffic stops with requests to search the defendant’s vehicles.  I’m loving the language, but I know, from 30 years of experience, that the other shoe is about to drop.  Because the State is the appellant, and Pals is a reversal.

Guess what.  The other shoe NEVER drops.

It’s a TYPO.

The Definitive Answer

By B John Burns
October 25, 2011

Is a deferred judgment a final conviction in Iowa?  In two separate decisions released last Friday, authored by two separate justices, the Supreme Court gave us the definitive answer.

The answer is no.

The answer is yes.

The answer is maybe.

Even a deferred judgment has some collateral consequences, especially in the federal system.  David Scott Daughenbaugh was a pharmacist who found out that he could not participate in Medicare, Medicaid or any other federal program after receiving a deferred judgment for stealing prescription drugs.  So he filed a postconviction relief petition to have his deferred judgment vacated on ineffective assistance grounds.

A postconviction relief action is available only to challenge a final conviction.  Different jurisdictions take various positions on whether deferred judgments are convictions, generally based upon their own particular statutory language.  The question in Daughenbaugh v. State was whether to define “conviction” in the strict legal sense, which in Iowa requires judgment and imposition sentence, as opposed to what would be dictated by general popular understanding., meaning the entry of a plea of guilty.

Justice Appel opted to go with the former.  A defendant who is granted a deferred judgment, successfully completes probation and has his or her case dismissed does not have a final conviction, and may not challenge the conviction leading to the deferred judgment in a postconviction relief proceeding.

So the answer is no.

But then, on the same day, we see State v. Tong, written by Justice Mansfield.  Justice Mansfield has stood on the sideline for much of his tenure to date, because the bulk of the Court’s cases have been further review of Court of Appeals decisions reached while he was a Court of Appeals judge.  Those days apparently are drawing to a close.  Justice Mansfied does give a shout out to the “carefully-written opinion” of the Court of Appeals that he is affirming on different grounds.

Nicholas Todd Drees

By B John Burns
October 11, 2011

I can pinpoint unequivocally my very first impression of Nicholas Todd Drees.

I am able to do that because I wrote about it in my March 15, 1993 Iowa Public Defenders Association Update, back when I was the P.D.A. president.  I first laid eyes on Nick Drees the evening of February 23, 1993 in the chamber of the Iowa House of Representatives.  Eighty speakers addressed a joint legislative hearing that night concerning the unsuccessful attempt to reinstate the death penalty in Iowa.  I remarked in the Update that “[t]he Public Defenders Association was well-represented at the hearing,” and summarized the remarks of Mike Williams from Sioux City and former Assistant Linn County Public Defender (and now District Court Judge) Nancy Baumgartner.  Then I wrote this:

Assistant Polk County Public Defender Nick Drees spoke on behalf of John Wellman, and delivered a concise, completely impromptu statement with breathtaking eloquence, which was honestly a highlight of the four-hour hearing.

Those of you who have been around long enough recall the price I paid for writing that.  But it was absolutely true.

Five months later, I had this to say about Nick:

Also, has anyone seen a picture of that guy who’s taking over the NBC Late Night show from David Letterman?  Isn’t that Nick Drees, from our Polk County Office?

The similarities between Nick and talk show host Conan O’Brien were more than the mere physical resemblance.  As it turns out, Nick and Conan graduated magna cum laude from Harvard College the same year (probably the same day).

Today was not a good day.

When I made the decision this afternoon to try to write something about my friend of 18 years, and my boss for 12 of them, I resolved to make no mention of the last eight months.  Whenever something like this crops up, the tendency is to focus on the painful circumstances of the person’s final days.  I prefer to remember the person at his or her best.

Well, I’m breaking the resolution.  I’m breaking it because, right to the very end, the Hell that Nick Drees and his magnificent family have had to endure since February truly brought out the best in him – and them.  I have never seen anything like it before.

When Nick discovered that the lump in his throat was not the relatively innocuous, easy-to-treat thyroid cancer it was first thought to have been, he and his family set up a Caring Bridge website.  All through the ordeal, Nick opened up to anyone who wanted to know, and reported in detail each of his triumphs and setbacks as they occurred.  Each of the journal entries was infused with self-effacing humor and stubborn positive thinking.  For every setback, there was a reason to believe things were still going to turn around.  He convinced me.  I stayed convinced right up until about yesterday.

Nick Drees was one of the three smartest people I ever met.  I’m pretty sure that’s not high on the list of things that Nick would tell you about himself.  One of my boyhood friends is a professor of material physics at Harvard.  About ten years ago, I told him that my boss graduated magna cum laude from Harvard.   My friend responded to the effect that we at Harvard have a name for people who go around telling the world they graduated magna cum laude from Harvard.  I didn’t get it from him, I told my friend.  I found out on my own.  But Nick was one of those guys who could address a jury panel during voir dire without notes, remembering all the names and biographical information of the panelists.

Nick Drees was passionate.  Clad in his trademark bow tie, he stood up at the February 23, 1993 death penalty hearings because that was one of his causes.  He was an active Board Member of the Iowa Civil Liberties Union.

Nick Drees had his entire career ahead of him.  Of all the people I knew and worked with, Nick was the one most certainly destined to wind up on the federal bench, in the district court, the Court of Appeals, or higher.

Nick Drees was an exceptional boss.  Everybody knows that lawyers make rotten bosses.  Not Nick.  Instinctively, Nick knew how to manage and motivate his employees.  He always kept an even keel.  (Everybody ALSO knows that lawyers make bad employees.  They’re hard to supervise.  I’m afraid I really lived up to that one.  Sorry, Nick.).

And Nick Drees was a saint.


We always say nice things like that about people when they pass away.  But with Nick it’s really true.  Nick did EVERYTHING right.  He was honest.  To the end, he was married to his high school sweetheart.  I can’t say he never said a bad word about anyone, because he did from time to time.  But they deserved it.  I CAN say I’ve never heard anyone say a bad word about him (Well, actually one person did.  But nobody really cares what that person thinks).  He raised perfect kids.  He ran a good shop.  He laughed at my most stupid jokes.  He was friendly to me when I didn’t deserve it.  He was a veritable saint.

So why does something like this happen to somebody like that?  I’m in my office, it’s 10:48 p.m. on a Monday night, and I’m at my desk writing this.  The light is on in his office.  I’m tempted to just walk down the hall and ask him.  Who knows when that reflex will fade?

I’ll end this with the last line of my all-time favorite movie, The Deer Hunter.

“Here’s to Nick.”
Wishful Thinking
By John Burns
September 13, 2011

I’m looking down the list of successful applicants who took the Iowa Bar Exam in July.  The results were announced today.

There is nothing really remarkable about them.  The last time, there were a few surprises statistically.  That happens from time to time.  For the test before mine, the failure rate was about forty percent, the highest anyone could remember.  It was an inducement to us to settle down and really prepare, and the pass rate shot back up into the low 90s.

277 people passed the test this time, which was 87 percent of those who took it.  There weren’t any real disparities between the two Iowa law schools.  I did notice that Washington University had one applicant who passed, and Thomas Jefferson School of Law had one who didn’t.  I suppose that’s because Washington was a greater President.

They always list the success rate of applicants who have taken the test multiple times, and there was one applicant taking it for the eighth time.  Once he or she does pass the test, THAT’s the person I want to represent me.  I think a person’s indomitable spirit is more valuable in a courtroom than the ability to pass a stupid test.  Generally, the people who take the test more than twice don’t have a high success rate.  There was one, however, who passed on the fifth effort.  Congratulations to you.

I’m sure I know some of the people on the list I am looking at, but no names are jumping out at me.  I can tell you this, however.  Yesterday, everyone on this list was chewing their nails off, wondering if they were going to have any kind career in this profession.  Today, they are all legal scholars – infinitely smarter and better lawyers than any of us dinosaurs.

To some degree, they’re right about that.  I will never know as much Iowa law as I did the day I took the bar examination.

The most daunting aspect of going down the list is the recognition that some of these people are going to actually BE somebody some day.  Out of this list will come judges, authors and fierce litigators.  Some of them will have careers in politics.  One of my coworkers graduated in a law school class at Harvard with a young Hawaiian by the name of Barack Obama.  Today they are all on the same plane.  

So in seven paragraphs I’ve said absolutely nothing.  Congratulations and good luck.  And remember, attendance at the admission ceremony at Hoyt Sherman Auditorium this Friday at 10 a.m. is MANDATORY.   Actually, I never went to mine 27 years ago, so maybe I’m not a real lawyer after all.

Wishful thinking.
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