Tetrahydrocannabinol, is widely believed to be the most psychoactive component of marijuana resulting in its "high." This image is taken from C. HEATHER ASHTON, FRCP, Emeritus Professor of Clinical Psychopharmacology (available at: http://bjp.rcpsych.org/content/178/2/101.full) (last visited May 23, 2014).
No. The law in Iowa on intoxication has not kept up with the
science of psychopharmacology. Under Iowa law, a jury may find that a defendant
is legally intoxicated and guilty of intoxication-related offenses like OWI
(DUI), serious injury by motor vehicle, or vehicular homicide if law
enforcement legally obtains a sample of his or her urine or blood and that
sample contains any trace marijuana
metabolites. In contrast, for alcohol, a jury must find that the defendant is “under
the influence” or that the presumptive measure of alcohol in one’s blood stream
is .08 BAC or more. No such measure exists for marijuana.
Because marijuana is metabolized differently than alcohol,
trace amounts may appear in the blood stream or urine days or even weeks after
ingestion.
Dr. Heather Ashton, Emeritus Professor of Clinical Psychopharmacology,
has written in the British Journal of Psychiatry that:
“Once absorbed, THC and other cannabinoids are rapidly
distributed to all other tissues at rates dependent on the blood flow . . . Because they are extremely lipid soluble,
cannabinoids accumulate in fatty tissues, reaching peak concentrations in 4-5
days. They are then slowly released back into other body compartments,
including the brain. Because of the sequestration in fat, the tissue
elimination half-life of THC is about 7 days, and complete elimination of a
single dose may take up to 30 days (Maykut, 1985).”
Pharmacology and effects of cannabis: a brief review C.
HEATHER ASHTON, FRCP, Emeritus Professor of Clinical Psychopharmacology (available
at: http://bjp.rcpsych.org/content/178/2/101.full)
(last visited May 23, 2014)
As to controlled substances in the State of Iowa, “any
amount” violates the statute. State v.
Comried, 693 N.W.2d 773, 775 (Iowa 2005).
The Iowa Supreme Court has opined:
“Although there is no direct legislative history, the legislature
likely included the ‘any amount’ language in the amendment to create a per se
ban. Subsection (1)(a) already prohibited driving while under the influence of
drugs. Thus, subsection (1)(c) was intended to do something more--to prohibit
people from operating motor vehicles with controlled substances in their
bodies, whether or not they are under the influence.” Comried, 693 N.W.2d at 776.
So, no, it is not okay to smoke or otherwise ingest an
illicit drug elsewhere—even if it is legal in that location—and return to Iowa
to operate a motor vehicle. It is quite possible that such a user might be
considered intoxicated even if professionals in the field of psychopharmacology
might consider them otherwise uninfluenced by the intoxicating effects of an
illicit drug.
A blog is not legal advice. No attorney-client relationship is established by reading a blog nor by sending unsolicited information to a lawyer over the Internet.
Open Range (2003) is my favorite Western and, in fact, my favorite movie of all time. It is available on Touchstone OnDemand. It offers not only thrilling panoramic scenery but also poignant lessons regarding honor, courage, dignity, and personal liberty. Here are 20 of those lessons.
Open Range is a Western in the classic American sense. It conjures the stereotypical David and Goliath battle as between free grazing cattle drivers and an unscrupulous, empire-building rancher, corrupt law enforcement, and paid mercenaries in his employ.
I watch it frequently, since I've gladly paid for the rights to do so, and have assembled the lessons I believe are most central to its narrative-- and the narrative of the American experience. They'll be lessons I pass on to my boys.
1. A
man’s trust is a valuable thing.
2. Every
man has to pull his weight.
3. I
ain’t one to take a man’s confidence lightly; it’s best to keep rememberin’ it
if you want your fair share of respect from men like Charlie and Boss
6. We’ll
drink to good health for them that have it comin’
7. Most
time a man will tell you his bad intentions if you listen—let yourself hear.
8. Beautiful
country. A man can get lost out here; forget there’s people and things that
ain’t so simple as this.
9. Cows
is one thing. But one man tellin’ another man where he can go in this country
is somethin’ else . . . sticks in my craw.
10. A
man oughta have something to show he was here.
11. We
pay our way.
12. A
man’s got a right to protect his property and his life. And we ain’t lettin’ no
rancher or his lawman take either.
13. You
may not know this but there’s things that gnaw on a man worse than dyin’
14. I
don’t know what you should tell her Charlie. This may be the last time she sees
you in this world or you her, so tell her anything you can because she’s
entitled to more than just your backside walkin’ away.
15. Shame
to go forever without taking the taste of something.
16. Pretty
day for makin’ things right.
17. Well
enjoy it. ‘cause once it starts it’s gonna be messy like nothin’ you ever seen.
18. Fact
is it’s what I always respected about you. What I always appreciated—how you
treated other people. How you treated me. How you never looked for no trouble
and that kept me from trouble.
19. Not
much for runnin’ from cowards.
20. We
ain’t givin’ up our guns. He’s gonna kill Button anyway. The only chance for
him or us when we walk up there is these guns.
Of course, it is also a love story. But my wife
insists that I mention her objection to the line in the movie, in which
Charlie asks his intended bride rhetorically, “how is this [marriage] gonna
work if you don’t do what I say?” Annette Benning chuckles dismissively at this. If you’re married, you understand this to be a universal reaction.
The last line of the movie? Let's go get our cows.
To catch a thief: even if someone is caught "red handed" in Iowa, the State must still prove the value of the stolen item, which is an element of the offense. Note: this image, among the first set of fingerprints taken from 1859 to 1860 by William James Herschel, is considered to be in the public domain because it appears the copyright has expired, according to Wikipedia. The image is available at: http://en.wikipedia.org/wiki/Theft
The value of an allegedly stolen item is “its highest value
by any reasonable standard at the time that it is stolen. Reasonable standard includes but is not
limited to market value within the community, actual value, or replacement
value.” Iowa Code § 714.3.
The classification of a theft charge in Iowa hinges on this
value. For example, a theft of something of value in excess of $10,000 is
considered first degree theft, a Class “C” felony punishable by at most ten
years in prison. Theft of anything in value greater than $1,000 but less than
$10,000 is considered a Class “D” felony. Theft of anything in value greater
than $500 but not exceeding $1,000 is an aggravated misdemeanor punishable by
at most two years in prison. The theft of anything of value greater than $200
but not greater than $500 is a serious misdemeanor punishable by at most one
year in jail. Theft of anything of value less than $500 is a simple misdemeanor
punishable by at most 30 days in jail.
There are any number of ways to commit theft in Iowa but all require proof of this value.
If you or a loved one have been charged with theft in the
State of Iowa, it may be important for a competent attorney practicing in the
area of criminal law to examine the facts and circumstances surrounding the
alleged theft.
Of course, a blog is not legal advice. No attorney-client
relationship is established by reading a blog or sending unsolicited
information to an attorney over the Internet.
The Iowa Courts Online Website is a valuable resource for lawyers and the public-- it is also the official electronic record of all judicial activity in the State of Iowa, called the electronic "docket." It is available at https://www.iowacourts.state.ia.us/
In Iowa, there is an electronic docket sheet that describes
items in the court file. A docket is an official log of pleadings in the court
file. The docket “has independent legal significance and is the ‘source’ of
other things, such as the record on appeal.”
Judicial Branch & State Court Adm'r v. Iowa Dist. Court
for Linn County, 800 N.W.2d 569, 577 (Iowa 2011)It contains:
“the title and nature of the action, the place of hearing,
appearances, and notations of the documents filed with the judicial officer,
the proceedings in the case and orders made, the verdict and judgment including
costs, any satisfaction of the judgment, whether the judgment was certified to
the clerk of the district court, whether an appeal was taken, and the amount of
any appeal bond.”
Iowa Dist. Court for Linn County, 800 N.W.2d at 574.
The Iowa Supreme Court has held that the electronic docket
sheet is the official record of activity in a given criminal case. Id.
If you would like to search for a particular name or case on
Iowa Courts Online, you may do so as a matter of public record at:
A couple of caveats apply. First, I frequently hear from
former and potential clients that a “deferred judgment” has not be expunged
from the official record during the pendency of probation. That is true. Deferred
judgment grantees’ files are not immediately removed from Iowa Courts online.
They must be “expunged” and the file sealed following the successful completion
of probation. That makes sense—if the defendant is half-way through probation,
they haven’t proven themselves worthy of expungement yet.
Secondly, I occasionally hear from former clients that the
record “inaccurately” reflects that they were found guilty or pleaded guilty to
a felony when, in fact, they benefitted from a plea deal to a lesser included
or substituted misdemeanor. In reviewing Iowa Courts Online in these cases, I
have never found that the record is incorrect. What I suspect is happening is
that potential or current employers are reading the search results for a particular
defendant. These results show that the defendant was originally charged with a
felony but you have to go through a few more mouse clicks to learn that the
ultimate disposition was a misdemeanor conviction. That’s because the number
describing the case file will have a felony designation beginning with “FECR.”
Third, dismissals have a similar effect while deferred
judgments are expunged. In the Iowa District Court for Linn County case above,
800 N.W.2d at 574, the Court held that dismissals do not warrant erasure of the
record. Id. Employers and potential employers can easily see that a person was
charged with a crime but they must dig deeper to learn that the case was
ultimately dismissed or resulted in an acquittal.
In the final analysis, Iowa Courts Online is a valuable tool
that lawyers use everyday. If a defendant learns to use it, they can stay on
top of their case and also save money calling up their lawyer to ask when court
dates will be in the future.
A blog is not legal advice. No attorney-client relationship
is established by reading a blog or sending unsolicited information to an
attorney over the Internet.
A third or subsequent OWI in Iowa is a serious offense.
First and foremost it is a felony punishable by at most an “indeterminate” five
year prison sentence with a mandatory minimum jail sentence of 30 days. The “indeterminate”
part of that sentence means that, if sentenced to prison, the parole board is
not hamstrung by a legislative mandate to deny parole for any minimum length of
sentence. Good and honor time is applicable but prison is prison and the felon
label is impossible to shake. Felons cannot vote unless they specifically
request and obtain a restoration of rights. And felons may not possess firearms—
stay away from guns and ammunition.
There is no deferrable option for third or subsequent OWI in
Iowa. People are sometimes stunned to find this out since the first time OWI
offense was typically deferrable for a breath test under .15 or at least a so-called "weekend program" can substitute for the minimum jail sentence on the first offense. That’s not true
for either a second or third or subsequent offense where I practice law in Iowa.
When people talk about a "true third" they are talking about someone who has "only" been twice convicted of OWI in their lives-- as opposed to a fourth or fifth OWI that is only classified as an OWI-3rd or subsequent because the classifications go no higher than 3rd or subsequent offense.
An evaluation is typically required as part of pretrial release and it's legally required before sentencing should a Defendant reach an agreement with the State to dispose of the case with a guilty plea. A defendant who believes he or she will seek a plea agreement with the State should immediately obtain an evaluation and begin any recommended treatment.
Because of the felony status of a convicted OWI-3rd offender and the minimum 30 day jail sentence (and possible prison sentence) the stakes are high. It will be very important for
a competent attorney to review thoroughly the discovery to determine if the law
enforcement interaction with the defendant was justified, if field sobriety
tests were warranted and properly executed, and if the officer and breath test,
if any, were certified in the handling of OWI cases.
A blog is not legal advice. No attorney-client relationship
is established by reading a blog or sending unsolicited information to a lawyer
over the Internet.
A forgery in Iowa is the presentation with the intent to
defraud some writing that is not what it purports to be. Now that’s fancy
language but that’s pretty much how the statute reads at Iowa Code § 715A:
injure anyone, or with knowledge that the person is
facilitating a fraud or injury to be perpetrated by anyone, the person does any
of the following:
a.Alters
a writing of another without the other's permission.
b.Makes,
completes, executes, authenticates, issues, or transfers a writing so that it
purports to be the act of another who did not authorize that act, or so that it
purports to have been executed at a time or place or in a numbered sequence
other than was in fact the case, or so that it purports to be a copy of an
original when no such original existed.
c.Utters
a writing which the person knows to be forged in a manner specified in
paragraph "a" or "b".
d.Possesses
a writing which the person knows to be forged in a manner specified in
paragraph “a” or “b”.
The Iowa Supreme Court has said that the focus is on the “genuineness”
or “authenticity” of the writing. Whether an alleged crime is a “forgery” (instead
of no crime at all or possibly a different kind of crime, for example, theft by
misrepresentation) hinges on “whether the act affects the genuineness of the
instrument.” State v. Calhoun, 618
N.W.2d 337, 339 (Iowa 2000)
But the inquiry doesn’t end there. What if the writing is
what it purports to be? For example, a genuine social security card held by
someone else posing as that person?
In an unpublished decision, the Iowa Court of Appeals held
that a criminal charge that alleges the possession of an authentic social
security card by someone else is not forgery if the State fails to craft its
trial information in such a way to assail the genuineness or authenticity of
the card itself. State v. Hampton,
2008 Iowa App. LEXIS 451, 5 (Iowa Ct. App. July 16, 2008).
The Hampton court wrote, “[t]hese facts could implicate the crime of
identity theft but they do not implicate the crime of forgery.” Hampton, 2008 Iowa App. LEXIS 451 at 6.
The specific intent to defraud is also an area to examine. Where forgery requires specific intent to defraud, the jury must specifically find that the defendant intended to defraud someone or some institution. It differs from general intent in that a jury need not delve into the merits of the thought process of a general intent crime; if someone did that general crime the general intent may be inferred from the act.
The jury instruction regarding specific intent is instructive:
'"Specific intent' means not only being aware of
doing an act and doing it voluntarily, but in addition, doing it with a
specific purpose in mind.
Because determining the defendant's specific intent requires
you to decide what [he] [she] was thinking when an act was done, it is seldom
capable of direct proof.Therefore, you
should consider the facts and circumstances surrounding the act to determine
the defendant's specific intent.You
may, but are not required to, conclude a person intends the natural results of
[his] [her] acts."
In a forgery, for example, the specific intent may not simply be found by the act of forgery. The jury must look beyond the act and determine if the defendant's purpose was to defraud.
It's an interesting question. Because every case is different, it is important to look at whether the State has sufficiently charged a forgery with the focus on the genuineness or inauthenticity of the document in question-- or whether it has misapplied the forgery statute. It is also wise to scrutinize whether the defendant possessed the requisite specific intent to defraud at the time of the alleged act.
A blog is not legal advice. No attorney client relationship
is established by reading a blog or by sending unsolicited information to a
lawyer over the Internet.
Some of the information on my website is content for which
other attorneys charge beaucoup bucks. The truth of the matter is this: it is
an incredibly competitive market. When someone comes to my website and obtains
information that other attorneys might disguise cryptically while encouraging
contact for a free initial consultation (and, thus, the “sales pitch”) I offer
the information for free to educate potential clients and hope that, if they
are satisfied or at least better informed, now or next time, I will be their
first choice. A criminal prosecution is an anxious time for a Defendant and his or her family. They have many unanswered questions. A good lawyer will provide answers.
For example, potential clients want to know how long a
criminal case in Iowa might last so they can brace themselves for the long term
marathon ahead. Simple. It can take months. Technically, even a “speedy”
resolution under the law can require up to 45 days to indict and as few as 90
days to prosecute, try, and dispose. That’s a total of 135 days, or, four and a
half months. There, that’s the answer. It can be longer but it’s a good rough
estimate based on the criminal rules.
Second, potential clients want to know whether they can turn
themselves in rather than be arrested at their workplace. Sometimes this is
true. Other times, detectives and investigators prefer the element of surprise.
The sound of the other shoe dropping is ominous but it’s sometimes unavoidable.
Third, once a defendant is in custody, they want to know if
talking to the police will help them. Reasonable legal minds can disagree but
my answer is this: no. You have a right to remain silent. Use it. Simple
answer. The longer answer is that most people want to know why they are being arrested and what
information the police will use to seek prosecution. They want the flow of
information to come to them. Sorry, any information the police give you is not
trustworthy. Law enforcement officers are legally allowed to engage in a “narrative”
tobuild rapport and render more malleable
a reluctant interrogation target. In other words, they can lie to a suspect. Which makes anything they tell you worth nothing and
everything you say admissible in court. With an informational value proposition
like that, there is little to be gained from a sit down with the police.
Fourth, bond is confusing. The three typical permutations of
bail are these: cash, surety, ten percent option to the clerk. Cash requires
cash. Surety allows a bail bondsman to post a piece of paper called a bond
which is the equivalent value of the bond required, and ten percent option
allows family members to cut out the bail bondsman and post ten percent of the
total bond to the clerk of court without paying a bail bond fee. That money can
be used to apply to court costs and fines later. In some cases, it will be
returned to the party posting bond if it can be established that this money
does not truly belong to the defendant.
Fifth, preliminary hearings don’t typically happen in Iowa.
A defendant won’t have to show up for this hearing—remember, initials PH for
preliminary hearing. Don’t assume a hearing is a preliminary hearing. When in
doubt, show up. Otherwise, the State can recommit to bail and the Defendant
will be in jail for the entire time the case is pending. Remember the 135 days?
Yeah, that long and possibly longer if there are delays.
Sixth, some charges require mandatory minimum prison
sentences and others don’t. The amount of time a Defendant may spend in prison
is a more complicated matter that requires an actual sit-down and review of
court papers. In short, there are four classifications of felonies in Iowa: A,
B, C, D. A Class A offense includes homicide. Several Class B offenses exist
including certain sexual predatory offenses called “Super Bs” that can result
in double the typical prison sentence. Most Bs are 25 year prison sentences and some
carry with them mandatory minimum 70% no-parole requirements. That means that a
seventy percent offense will require 17.5 years in prison before eligibility
for parole. Class C and Class D offenses carry 10 and 5 year prison sentences,
respectively. They are typically indeterminate. Some can be suspended, meaning
probation is a possibility. Others cannot. It will take a thorough review of the complaint and
trial information to determine the classification and range of penalties
applicable in a given istuation.
Seventh, pretrial motions can include suppression of
evidence. It requires a violation of constitutional rights that the Court
recognizes. Some include Fourth Amendment violations like illegal search and
seizure. A review of the "discovery" is required to determine whether a legitimate suppression issue exists to file a motion and have a hearing.
Eighth, a good number, because the violation of the Eighth
Amendment prohibits the cruel and unusual punishment of children convicted of
crimes for which there are lengthy mandatory minimum prison sentences without the
possibility of parole. The law in Iowa is evolving in this way and it is
important to include an analysis on this basis.
Ninth, plea bargaining is different in every case and
depends on the facts and circumstances of a specific criminal prosecution. No
attorney can promise results and anyone who does should be viewed with
suspicion. There is no way to predict the “success” of an attorney in a
particular case. Experience is helpful but “bad facts” are not. Over 90% of all
cases in the United States are resolved with plea agreements. All attorneys must begin each case on a trial
footing; in other words, every competent criminal defense attorney will pursue
two tracks: trial at the same time leaving the door open for plea negotiations
and, by law, communicating every bona fide offer to the Defendant.
Tenth, jurytrial
includes a partnership as between the defendant and the criminal defense
attorney. An attorney should make every effort to pursue requested theories of
defense and possible witnesses. Defendants should participate in jury de-selection,
including a review of the jury questionnaires and the assembly of a list of
possible “strikes”
Finally, communication is the most important aspect of
criminal defense. If a Defendant does not “click” with his or her criminal
defense attorney, representation can suffer and the disconnect can become a
distraction.
A blog is not legal advice. No attorney-client relationship
is established by reading a blog or sending unsolicited information to an
attorney over the Internet.
In the State of Iowa, a substance abuse evaluation is a
typical condition of pretrial release on an OWI (DUI) or controlled substance
charge. If a Defendant is released on his or her own recognizance or otherwise
posts bond, the Judge can order the Defendant to obtain such an evaluation.
Moreover, pursuant to Iowa Code § 321J.3, the Court must impose the requirement that a Defendant obtain a substance abuse evaluation prior to sentencing.
In addition to these conditions for the
above offenses, Iowa Code § 124.47 requires, as a “penalty” for possessing
alcohol under the legal age that a Defendant choose between completing a
substance abuse evaluation or surrendering their driving privilege for one
year.
Pursuant to Iowa Code § 901.5, the Court has the authority to
impose the treatment recommended by such an evaluation in any case where it is
authorized to order the evaluation.
In addition to these requirements, the Iowa Department of
Transportation will insist that a Defendant show proof of completion of a
substance abuse evaluation prior to reinstatement of a driving privilege.
Substance abuse evaluations are part of “court life” and
thus there has sprung up a cottage industry of evaluators. Some such evaluators
also sell treatment services—and a reasonable argument can be made that,
because the Court has the authority to order the Defendant to pay for any
recommended treatment, such treatment sellers are conflicted. On the flip side, there
are evaluators who proclaim that they are “conflict free” in this regard—and disavow
“coercive treatment” recommendations on philosophical grounds. So who should
the Defendant go to for his or her evaluation?
My answer has surprised many defendants. For those who are
seeking to prove themselves worthy of leniency—either in the deferred judgment
or sometimes even the weekend program context—I will recommend that the
Defendant go to an evaluator likely to recommend treatment. Why? If the
evaluation recommends nothing, the Court could consider that it was the intent
of the Defendant to avoid treatment. Second, it won’t give the Defendant an
opportunity to prove himself or herself—to bring in the Gold Star Diploma after
having completed the recommended treatment.
It’s a great feeling, as an attorney, to bring in all of the
necessary documentation to show that the Defendant has completed, with flying
colors, a treatment program at
sentencing. It has to be a great feeling for the Defendant, too. Because it predictably earns kudos for Defendants who have done “what
you’re supposed to do” and “what we like to see.”
On the other hand, there are those who are not seeking
leniency. They may have already served the minimum jail sentence or have other
charges pending that will require additional time. A substance abuse evaluation
may be pro forma and a recommendation for treatment might not otherwise benefit
the Defendant. For these Defendants, I don't usually have to make a recommendation. They usually have heard from friends about the best choice for a substance abuse evaluation.
No matter what, there is no way to predict the outcome of a
substance abuse evaluation. I have seen professionals accused of consistently
making a “no rec” recommend treatment come back with treatment options. And, on rare occasions, I have seen
self-serving treatment sellers make “no rec” recommendations, as well.
The short answer is that an eval is required and it's best to get it out of the way early and follow any recommendations to the letter.
A blog is not legal advice. No attorney-client relationship is established by reading a blog or by sending unsolicited information to a lawyer over the Internet.
What is the difference between a cash bond and a cash or
surety bond? What about a ten percent option to the clerk? These are all good questions and they usually come fast and furious after a loved one is jailed on a criminal complaint in Iowa.
A cash bond is a bond in which you must post cash to the
clerk of court. A corporate surety bond is a special type of bond where your
bondsman, with the assistance of a corporation that writes bonds, can put up a
financial instrument that has the value of your bond amount. A criminal
defendant and his or her family pay the bondsman a fee for this service (it’s
how the bondsman earns a living) and the defendant never sees that fee again.
The bondsman files the surety bond with the clerk of court and this substitutes
for the cash. If it is a “cash only” bond, the defendant cannot use a corporate
surety to post the bond. Typically, this means that they must find the cash out of pocket or have a family member
post it. However, some bondsmen will post cash for an even higher percentage
fee—usually only if the defendant and his or family secures the cash bond with
significant collateral like unburdened real estate (a house that is paid off). Sometimes
collateral can include a paid-off late model car.
Bondsmen are private sector businesspeople and, within the
confines of the law, they write their own bonds and transact business in the
private sector. They are connected to the court system but they don’t work for
the courts.
When a cell mate tells a defendant that he or she needs to come
up with ten percent to secure the services of a bondsman, this is a general
rule of thumb for corporate surety bonds but by no means required or enforceable. That's because the bondsman does his own business on his own terms within the law. He might not even write a bond if he believes the defendant is a flight risk.
In certain cases, the judge will allow a “ten percent option
to the clerk” or other percentage option to the clerk. This allows the
defendant to post a certain amount of the bond amount to the clerk without
using the services of a bondsman. First, that saves the family a considerable
fee to a bondsman by cutting out the middle man. Second, once the matter is
resolved with either a trial or a plea agreement, costs and fines, if any, can
be deducted from clerk option.
A blog is not legal advice. No attorney-client relationship
is established by reading a blog or sending unsolicited information to an
attorney over the Internet.
Defense attorneys hear this a lot from non-attorneys.
The answer? I don’t. I represent the innocent unless proven guilty (some say ‘innocent
until proven guilty’ but I regard
that as a self-fulfilling prophecy—a kind Judge Roy Bean, let’s-give-him-a-fair-trial-and-then-hang-him
implication). It's a facet of our unique system of jurisprudence.
How unique is it? Well, the presumption of innocence and
requirement that the State prove the Defendant guilty beyond a reasonable doubt are not actually in the United States
Constitution. But here’s what the United States Supreme Court had to say about
it:
“This Court has declared that one accused of a crime is
entitled to have his guilt or innocence determined solely on the basis of the
evidence introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced as proof at
trial . . . And it long has been recognized that an instruction on the
presumption is one way of impressing upon the jury the importance of that right.”
. . .
“While use of the particular phrase ‘presumption of innocence’
-- or any other form of words -- may not be constitutionally mandated, the Due
Process Clause of the Fourteenth Amendment must be held to safeguard ‘against
dilution of the principle that guilt is to be established by probative evidence
and beyond a reasonable doubt.’”
Taylor v. Kentucky, 436 U.S. 478, 485-486 (U.S. 1978).
At some point, however, some astute critics will point out
that the merits phase is over and the sentencing phase is set to begin. They
ask me whether I change my mind about my clients once they have been proven or
have pleaded guilty.
The answer is that my oath to advocate zealously for my
client, once I am their lawyer, forbids dilution of my commitment. What kind of a criminal justice
system would we have if lawyers were allowed to abandon their clients after
they had been found guilty by a jury or entered a plea of guilty pursuant to a
plea agreement?
More importantly, what kind of a person would flee an
obligation because it became unpopular or difficult? Morality is equal parts
courage and dedication. Neither is demonstrated by the rhetorical question
posed above—how can you represent the guilty? Maybe the better question is: how can I not?
A blog is not legal advice. No attorney-client relationship
is established by reading a blog or by sending unsolicited information over the
Internet.
Everyone knows the Miranda warning from television. Though
we sometimes see law enforcement protagonists reading a pro forma warning to
arrestees from a card, there are no magic words as long as the police clearly inform
custodial interrogation targets that they do have a right to be quiet because
everything can, and will be used against them (really bad) if they don't do so. Likewise,
interviewees in custody subject to the functional equivalent of questioning have a right to an attorney.
If an officer wants to obtain a statement to shore up an
investigation, he or she will cagily invite a suspect to “tell his side” of the
story by leaving a business card or a scribbling a cell phone number on a scrap
of paper as an offer or gesture to the would-be defendant.
“Let’s sit down and talk,” says Officer Friendly.
“You’re not under arrest” and “you’re going home tonight” are
frequent watch words that should set off alarm bells that both disarm and deny
to defendants the Miranda warning. Why? Because Miranda requires only that an
officer announce that an interrogation target;s words will be used against him or her when he
or she is in custody. The
stereotypical—and easy—situation where everyone understands a warning is
required is when a suspect is in handcuffs and placed in an interrogation room.
This is easily, objectively a custodial situation that requires a Miranda
warning.
Why objective? Well, because a reasonable person standing in
the suspect’s shoes would understand this situation to mean that he or she was unfree to leave. Unfree to leave has
talismanic significance. If the defendant is free to leave, as in, “you’re not
under arrest” and “you’re going home tonight,” or “you can go any time you want
to—we’re just talking,” it becomes clear that Miranda may not be necessary. In fuzzy situations, like standing in a raided house, or, even a suspect's house, the facts and circumstances will be key to an understanding whether the suspect was both subjectively and objectively free to leave. If so, police, and the courts, may equate a non-custodial interrogation to a casual conversation that does not require a Miranda warning.
Now, if Officer Friendly pairs "you're not under arrest" language with handcuffs
and sequestration in a locked interrogation room, you’ve got a different story.
Which is why the facts and circumstances of each case should be reviewed by a
qualified attorney for possible presentation of a suppression issue to a judge.
The second requirement is an actual interrogation. Walking
up the middle of the street and confessing a crime to an
unwitting patrol officer is not an interrogation. It’s an unsolicited confession. And absent
mitigating circumstances is probably not going to require a Miranda warning.
How could it? The officer was heretofore directing traffic (it's also not custody).
It gets blurrier if an officer does not technically engage
in questioning designed to elicit incriminating answers and does not know a
suspect’s particular susceptibility to a scripted dialogue about the consequences
of silence.
In a 34 year old United
States Supreme Court case called Rhode Island v. Innis, two police officers transporting
an armed robbery suspect engaged in an un-Mirandized dialogue with each other and within earshot of the defendant about the
safety of a nearby school in the context of a discarded weapon. So distraught
about the possibility of an injured student, the robber blurted out that he
wanted to assist the officers in retrieving the discarded firearm. The Supreme Court
held that the dialogue was not the functional equivalent of an interrogation
because the officers did not know that the conversation was likely to have such
a jolting effect on the suspect.
Even if an un-Mirandized custodial interrogation produces an
incriminating statement, the remedy is, sadly, not dismissal of the prosecution
as so many defendants and their families hope. It is suppression of the evidence under limited circumstances. This means
that the defendant’s incriminating statement can be withheld from an unwitting jury under
limited circumstances—and sometimes can even be introduced over the objection
of the defendant under other, limited circumstances.
A blog is not legal advice. Neither reading a blog nor
sending unsolicited information to a lawyer over the Internet establishes an
attorney-client relationship.
In Unforgiven, Gene Hackman's character, a town marshal, interrogates Morgan Freeman with a whip. The marshal confronts Freeman's character with purported guilt. When his coconspirators lies don't match his lies, says Hackman, he's going to hurt Freeman, "and not gentle like before. But bad."
Despite nearly universal rejection of polygraph junk science
in the courts, some law enforcement officers still ask interrogation targets to
take polygraph, or, so-called “lie detector” tests. The objective is a confession-- not the truth.
Law enforcement in the State of Iowa has a checkered past of
using polygraph examinations oppressively to extract confessions. State v. Franks, 239 N.W.2d 588, 590
(Iowa 1976). In Franks, a prosecuting attorney exchanged the promise to refrain
from filing a trial information for the Defendant’s consent to take and “pass” a polygraph examination.
The Court recounted that the promise went something like
this: “Larry, if that's the case why don't you take the polygraph and I won't
even have to file an Information if you don't know anything about it.” But it
got worse from there.
The polygraph was a prop in a devious interrogation, which
the Court found coercive and involuntary irrespective of the technology. Id. The
prosecutor refrained from charging the defendant to deny him counsel, invited
the unrepresented defendant to take a polygraph to avoid a charge, and the polygrapher
detective promised probation for a confession and threatened a twenty year
prison sentence if the Defendant did not confess. Id. The Iowa Supreme Court
understandably reversed and remanded for a new trial. Id.
Similarly, the Iowa Supreme Court has affirmed a lower court
ruling suppressing a confession after a rigorous “hard” polygraph examination was
a factor in confronting the defendant with his purported guilt. State v. Cullison, 227 N.W.2d 121, 129
(Iowa 1975). In Cullison, the facts
and circumstances—including sleep deprivation and a six hour polygraph exam—were
so egregious that the court held that the use of a prolonged polygraph exam,
while not per se coercive, must be a
factor in determining whether a confession was coerced. State v. Cullison, 227 N.W.2d at 129.
Notably, the Cullison
court queried whether the “release” the defendant signed was designed to
indemnify the detectives for their treatment of the defendant:
“This instrument contained another waiver of Miranda rights
but its main purported purpose was to release the Pottawattamie county attorney
and his employees (Babbitt, the polygraph officer was one) from all liability
for the results of the polygraph examination.”
Cullison, 227 N.W.2d at 128.
Perhaps the lawsuit protection was wise, as the Court
pointed out:
“The physical and psychological tensions exerted on [the
defendant] were demonstrated by his condition when the interrogation ended. The
officers were alarmed; he was immediately hospitalized.” Cullison, 227 N.W.2d at
129.
The Cullison polygraph
interrogation was nine and a half hours straight—six and a half hours of which
was the so-called polygraph exam. Id.
In Franks and Cullison, polygraphs were a prop for
interrogations, designed to confront defendants with purported “knowledge” of
their guilt. In both cases, the court found that the extraction was inherently
coercive and, thus, both unreliable and unconstitutional.
But there is another good reason not to take a polygraph
examination—if a defendant “passes,” the prosecutor can prohibit the jury from
ever seeing the result. In State v.
Conner, a defendant offered evidence of his own expert polygraphers to show
that he was not being deceptive when asked specific questions. The State moved
to limit the introduction of that evidence. The Court agreed that it could not
be offered unless the prosecution stipulated, or, agreed, to its introduction.State v. Conner, 241 N.W.2d 447, 457 (Iowa
1976).
So, in short, polygraph exams in the State of Iowa are
mostly props useful only to interrogators and useless to defendants who wish to
“prove” their innocence.
A blog is not legal advice. No attorney client relationship is established by reading a blog or by sending unsolicited information to an attorney over the Internet.
The question sometimes comes up in my Iowa criminal law practice: Should I plead to get out of jail before sentencing? No. The only reason a defendant should plead guilty in exchange for an agreement that includes release pending sentencing is if they are (1) guilty; (2) know they will not commit subsequent offenses while on pretrial release; and (3) have reviewed with their attorney the law and the facts; and (4) come to a determination that further discovery, investigation, and litigation will be fruitless and lead to the same or worse result. At that point, it is the defendant's choice to plead guilty. If they do so, the Court will ask specific questions about:
1. The factual basis of the plea-- do the facts meet the elements of the offense charged?
2. Does the defendant actually believe they are legally guilty of the offense?
3. Do the minutes of testimony and trial information accurately reflect what happened?
4. Does the defendant understand the plea agreement for a recommendation to the court
5. Does the defendant know the judge is unbound by the plea agreement and can impose any legal sentence?
6. Does the defendant know the judge doesn't actually have to follow the recommendation to release the defendant following the plea?
If the defendant understands all of the above and, also, that the worst case scenario is that the sentencing judge may sentence the defendant to the maximum sentence allowed by law regardless of the plea agreement between the parties, the defendant may accept a plea agreement that includes, as an aside, release pending sentencing.
