T. Vig's Way

By B John Burns
August 15, 2011

Last Thursday, about half past noon, I finished a sentencing hearing on a gun case at the Council Bluffs Federal Courthouse (which is just a room in the Post Office).  The guy got more time than I had hoped for, but much less than he might have gotten.  When he heard the sentence, the client’s father went ballistic.

After the family filed out, I sat down with the prosecutor and worked out a much more favorable deal for a client set to plead guilty the next day.  As we spoke, my Iphone buzzed.  It was my little sister in California.  Without answering it, I set it on the table and finished the negotiation.  The phone stopped ringing and the message light came on.

We all deal with the families of our clients.  When it comes down to sending a man to prison we may, in our hearts, know we got the best deal for the guy.  The guy may know it, too.  In most cases, the family doesn’t seem to understand.  All they know is that their son, or their brother, or their daddy, or their husband is going away to prison.  In federal court, it’s often for a long, long time.  Even with a good deal.  And for someone who hasn’t played the game like we have, a year is a long time.  Hell, a month is a long time.

I’ve had the opportunity, if you want to call it that, to experience to some degree how it feels to sit on that other side of the rail.  Five years ago the bloodthirsty monster that is the United States Attorney sunk its miserable claws into my cousin, Tommy Vigliatura.

A Little Power
By B John Burns
August 8, 2011

I know I’ve told this story several times since the disaster of last November in my CLE presentation, but I don’t know if it’s come up in my blog.

When I was in the sixth grade, a new kid started at my school.  I won’t mention his name.  He passed away at least ten years ago.  He was one of the most decent and likeable persons I ever met.  He was one of my all-time best friends.  When he started at my grade school, this kid had a very unique distinction.

The previous summer, this kid had derailed a train.

That’s right.  A few months earlier, this kid and a friend of his got the idea in their heads to lay a big log across the tracks.  And, as a result,  they managed to derail a train.  

And they pretty much got away with it.  This kid was at the magical age where you can do really stupid things and cause a lot of damage, and the world will give you a pass, because you’re just a little too young to know better.  Things might have gone different in this day and age.

I’ve used that story over the last ten months as something of a metaphor for Bob Vanderplaats and his merry men.  As you may have surmised, I don’t like Bob Vanderplaats at all.  I have nothing good to say about Bob Vanderplaats.  When I sit down and write about him, I end up having to rewrite a lot of it.

Well, in my talks, Bob Vanderplaats is like this kid I knew growing up.  In some ways.  I don’t consider him decent or likeable, and definitely I can’t imagine that he’ll ever be one of my all-time best friends.  But Bob Vanderplaats essentially laid the log down on top of the railroad tracks and managed to derail our judicial system.
Our Take on Anderson vs. State

Anderson vs. State is not limited to electronic monitoring or home detention. We believe that  it applies to almost all probations where your client is supervised by the Department of Correctional Services.


Here are our thoughts if your client’s Level Two probation (Iowa Code section 901B) is revoked:

Your client should get jail/prison credit from the moment he/she is sentenced to probation under the supervision of the Department of Correctional Services. This includes what we call “street probation.”

The prison should give credit for time served but that time comes off the back end of the sentence (discharge date) and we’re uncertain if earned credit is automatic.

If your county  has a Level I probation but has some type of compliance check by the Department of Correctional Services or if there is a supervision fee, we believe that probation is actually Level II according to 901B and your client should get credit for time spent on probation if their probation is revoked.

Other thoughts:

If your client has served the maximum time of sentence on probation, maybe a Motion to Discharge from Probation is in order citing that the client has discharged the original sentence.

Courts may start to impose lengthier sentences on misdemeanors to avoid client’s discharging sentences within 30 to 90 days. You may see more 1 to year suspended sentences. (Until this statute gets changed - probably around January)

We believe that there are very few counties which truly have a Level I probation.

We're not sure how the Court will deal with a probationer who abscounded. Our guess is that the time will be tolled much like parole cases.

A few forms:

Motion For Credit For Time Served

Motion to Discharge Probation/Sentence

Into the Valley of Death
By B John Burns
August 2, 2011

My first glance at last Friday’s opinion in Anderson v. State almost had me jumping indignantly all over my old law school classmate, Justice Waterman.  As if he probably even cares.

He writes this unanimous opinion which is a very favorable one for us.  So why should I complain?

What grabbed me was that he leads off by paraphrasing Tennyson’s “The Charge of the Light Brigade,” the language about ours is not to question why, ours is but to do and die.  That sort of thing.

And I’m thinking, “Really, Justice Waterman?”  Is it that painful for six Justices (Justice Mansfield was on the Court of Appeals when this case came through there) to follow the law if helps one of our (in this case Patty Reynolds’) clients, that we equate it to six hundred soldiers marching off to their deaths?  Is this some indication of how difficult it’s going to be for us to get reversals from the Court in the future?

But then I read the opinion, and I see what he’s saying.  And it’s a great opinion, and I understand the Tennyson reference.

Michael Anderson pled down two second-degree sexual abuse charges to two class “D” counts of enticing away minors.  He gets probation, which he violates repeatedly.  Probation is revoked.  The question is whether he gets credit for time under home confinement with electronic monitoring.  You wouldn’t think so.

But Iowa Code § 907.3(3) expressly provides that a defendant who has his or her probation revoked receives credit for time under the supervision of the Department of Correctional Services, and Mr. Anderson’s home confinement was under the supervision of the DCS.  Justice Waterman characterized as “counter-intuitive” a holding that a defendant should get prison credit for time served living at home.  Virtually every other jurisdiction goes the other way.  The difference in Iowa, however, is the unequivocal language of the statute that is dissimilar from that of most other states.

So, yes, Mr. Anderson gets credit for time in home confinement.  Four of the five Iowa Code § 901B.1 levels of sanctions involve supervision by the DCS, so this decision could operate as a windfall for defendants seeking credit towards their sentences.

This opinion is a useful guide to many principles of statutory construction.  The result IS counterintuitive, but if anyone “had blunder’d” it was the legislature.  I’m sure the Attorney General has beaten a path over to the Capitol Building to fix THIS ONE.
The Judicial Branch

By B John Burns
July 15, 2011

A somewhat interesting pair of decisions were announced by the Supreme Court today.  Both were written by Justice Ed Mansfield and concerned efforts of defendants who were acquitted or whose charges were dismissed to expunge criminal history data from electronic records that are made available to the public.

In Judicial Branch v. Iowa District Court, a defendant known only as J.W. sought removal from the Iowa Court Information System of docket information relating to charges dismissed after he won a suppression motion.  Iowa Code § 692.17(1) provides that “[c]riminal history data in a computer data storage system shall not include arrest or disposition data or custody or adjudication data after the person has been acquitted or the charges dismissed.”   Justice Mansfield noted, however, that § 692.17(1) conflicts with other sections of the Code.  He held that docket information relating to acquitted or dismissed charges need not be removed because (1) the docket constitutes source documents excepted from removal under Iowa Code § 692.17(2)(a), (2) the public is entitled to view public records of “any public body or agency” under Iowa Code § 692.18(1), (3) criminal history data is considered public records under Iowa Code § 22.7(9), and (4) the clerk of court is required to maintain the docket under Iowa Code § 602.8104.

J.W. pointed out that the criminal history data of defendants who received deferred judgments is removed from the data made available to the public by ICIS.  Such data, Justice Mansfield explained, goes into a separate confidential file that is only available to law enforcement and court personnel.  Assuming that defendants who are acquitted and those who receive deferred judgments are similarly situated, a rational basis exists for their disparate treatment, so Justice Mansfield rejected J.W.’s Equal Protection argument.

The defendant in Department of Public Safety v. Iowa District Court sought removal of similar data for Iowa Department of Public Safety electronic files.  In that case, Justice Mansfield held that the sole mechanism for attempting to remove data from agency records of the Department of Public Safety is through the administrative procedure provisions of Iowa Code § 692.5 and judicial review, and not through proceedings in equity in district court.  Section 692.5 expressly limits the right of action in this manner.

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