Open Range: All of Life's Lessons on Honor, Dignity, Individual Liberty, and American Purpose

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

4.         Get yourself a trade and set up in a town you’ll always have a roof over your head, a bed up off the ground, and food no further than a café.

5.         Always liked me a sidearm with some heft.

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.

            

Theft in Iowa: How Value Makes a Difference in a Theft Prosecution

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.

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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.

Iowa Courts Online: How do I—and others—check on the progress of my criminal case?

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:

www.iowacourts.state.ia.us/

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.

OWI-3rd in Iowa: What Now?

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. 

Authenticating the Unauthentic: What forgery is and what it isn't in Iowa

This check appears to be drawn on an account of the Standard Bank of South Africa

on July 10, 1933. It is believed to be an image unprotected by copyright because the

copyright has apparently expired. The image is available at http://en.wikipedia.org/wiki/Cheque

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:

A person is guilty of forgery if,with intent to defraud or

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.

Bread on the Water: Why I Give Legal Information Away for Free on 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” to  build 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, jury trial 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.

Should I Go to Dr. Feel Good or Nurse Ratchet for My Substance Abuse Evaluation?

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.