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By B John Burns
June 3, 2009
One of the great ironies of our little culture of trial and error is that, after seeing the way our system operated in his case, it is appropriate to characterize James Carson Effler as a “victim”.
Mr. Effler (or, perhaps, his attorney, Angela Campbell) is the victim of a bizarre set of procedural circumstances that culminated in his life sentence for kidnaping in the first degree being upheld.
Mr. Effler is the guy who was caught in the bathroom at the Des Moines Public Library with a naked two-year old girl. After some interrogation, he admitted to police that he had sexually abused the child.
Couched within the record of the interrogation is a statement by Mr. Effler that “I do want a court-appointed lawyer.” After the questioning detective says “okay”, however, the defendant adds, “If I go to jail.” This is before the actual confession.
So the question is whether or not interrogation should have been terminated when Mr. Effler told law enforcement he wanted a lawyer. The district court didn’t think so, and the confessions came in. The Court of Appeals disagreed, and reversed the conviction on Fifth Amendment grounds. |
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Sitting Ducks after Montejo |
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By B John Burns
June 2, 2009
I was out last week at the Federal Defenders’ annual seminar in the Twin Cities, and I saw the summaries for Montejo v. Louisiana, which came down last Tuesday.
We took a BIG, BIG hit in Montejo, and this is something that each and every one of us better be aware of.
It has to do with the ability of police officers to go in and initiate an interrogation of our clients AFTER we have been appointed to represent them. Until Montejo, they couldn’t do it. In Michigan v. Jackson, the Court created a bright line rule that once a defendant had requested counsel at an arraignment or some form of initial appearance, law enforcement could not, under the Sixth Amendment, initiate an interview with a represented defendant.
No more.
The right to counsel involved in Montejo is the Sixth Amendment right to have counsel present at all critical stages of trial, once the right has attached. This is distinct from the Fifth Amendment right to have counsel present during custodial interrogation, as articulated in Miranda. With respect to the Fifth Amendment right, the Court held in Edwards v. Arizona (1981), once the defendant requests counsel, DURING INTERROGATION, all questioning must cease and may only be reinitiated by the defendant. |
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By B John Burns
May 28, 2009
Of course, no matter who President Obama chose for the Supreme Court, you know the little people who lost all their political power last November would be spewing the “liberal, activist judge” line. And they have not disappointed us.
And, of course, nobody lives a public life without making some off-the-cuff remark that can be dredged up and used against them. Apparently, Judge Sonia Sotomayor has two of them.
But, of course, if anyone should complain about her selection, it’s us – not them.
Judge Sotomayor is a former prosecutor. Contrary to what you’ll hear from Rush Limbaugh and the rest of the brain trust, she’s no flaming liberal. She was placed on the Court of Appeals by President George H.W. Bush. More of her rulings on criminal justice issues favor the government than they favor our clients – apparently in a greater proportion than that of the average Court of Appeals judge.
We should be complaining, not them. But I won’t. Because I don’t really know anything about Judge Sotomayor. So, unlike Rush Limbaugh and the rest of the brain trust, I’ll keep my mouth shut.
And speaking about people who should keep their mouths shut, did you see Congressman Steve King’s editorial on gay marriage this morning? |
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By B John Burns
May 19, 2009
There’s about five or six weeks left in the October, 2009 term of the United States Supreme Court, and I’m trying to get caught up in digesting some of its decisions. There’s always a flurry of interesting decisions in the last couple weeks of the term, but this Court has been relatively busy since February.
One that I’m poring through today is Vermont v. Brillon. It came out on March 9, but I’m skipping around a little. Michael Brillon was one of those clients who, over the course of three years, was represented by six different attorneys. He “fired” the first, and threatened to kill the third. Two of them withdrew on grounds relating to their contracts with Vermont’s Defender General. There were periods of as long as sixth months between the withdrawal of one counsel and the appointment of another.
The Vermont Supreme Court found that the three-year delay violated the Sixth Amendment of the United States Constitution. Justice Ginsburg pointed out that, while the Vermont Constitution contains a speedy trial clause, the issue was litigated solely on Sixth Amendment grounds.
NOW THERE’S SOMETHING THAT BETTER NEVER HAPPEN IN IOWA. You don’t want to see a state supreme court try to do something for a defendant and then get shot down by a federal court because defense counsel raised the issue solely on federal grounds. |
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Annual Criminal Law Seminar |
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The annual Iowa Public Defender Association Criminal Law Seminar is scheduled for June 17th to the 19th at the Stoney Creek Inn, Johnston, Iowa. Tentative CLE Credits: 15+ Hrs State, 2 Hrs Ethics Attorneys: $200 Advance, $275 Walk-in
Investigators: $200 Advance, $250 Walk-in Please visit that website regularly, since it contains information regarding after-hours activities and discounts in addition to information on the seminar itself. The entertainment section of the website mentions that our good friend B. John Burns will be playing at the nearby Okoboji Grill Thursday night. It also contains information for anyone who may want to go to an I-Cubs game that night, as well as information on The Game sports bar for which we will have 100 drink coupons and 100 meal coupons available. The site will be continually updated until the seminar.
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Poems From Guantanamo
Published by the University of Iowa Press
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