This article appeared today in the Des Moines Register regarding the United States Supreme Court’s decision in Iowa v. Tovar, which can be accessed here. Basically, the case involves guilty pleas when the defendant is not represented by counsel. The issue is whether "The defendant must be advised specifically that waiving counsel ’s assistance in deciding whether to plead guilty (1) entails the risk that a viable defense will be overlooked and (2) deprives him of the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty."



The case is on appeal because an individual named Felipe Tovar is fighting his conviction for third offense Operating while Intoxicated (DUI). He argued it should really be second offense Operating While Intoxicated because the first time he pled guilty he wasn't informed of those two things, and therefore the courts should not count the first conviction.



What interests me about the Des Moines Register article are the quotes from area lawyers that supported this standard.



State appellate defender Theresa Wilson was quoted as saying: "The judge should inform the defendant of his constitutional rights to a lawyer," she said. "The Tovar case created a specific standard that could be followed." Another quote: "The Tovar case, said Drake University law professor Robert Rigg, underscores a criminal defendant's need to have a lawyer. 'There are certain aspects that the average person isn't going to know about,' Rigg said. 'There can be motions to suppress evidence or other business, especially in cases where there are enhanced penalties down the road.'"



Between these quotes, they seem to imply that Iowa courts and prosecutors won't inform defendants of the constitutional right to a lawyer absent the Tovar standard, and there is some assembly-line justice going on in Iowa courts. However, a brief review of the standard OWI 1st written guilty plea - a copy of which I found online here - confirms what I've seen over and over again in the courtroom: Iowa defendants are very well informed of the right to an attorney, the right to a trial, and the possible ramifications of a guilty plea, particularly at the serious misdemeanor level and above. Those offenses require a formal Trial Information and written or oral arraignment on the charge.



The Iowa Court Rules require the following at the arraignment, when the defendant appears pro se and wishes to plead guilty:



Rule 2.8 Arraignment and plea.

2.8(1)Conduct of arraignment. Arraignment shall be conducted as soon as practicable. If the defendant appears for arraignment without counsel, the court must, before proceeding further, inform the defendant of the right to counsel and ask if the defendant desires counsel; and if the defendant does, and is unable by reason of indigency to employ any, the court must appoint defense counsel, who shall have free access to the defendant at all reasonable hours. deferred sentence may affect a defendant ’s status under federal immigration laws.



2.8(2) Pleas to the indictment or information.

b. Pleas of guilty. The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1)The nature of the charge to which the plea is offered.

(2)The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.

(3)That a criminal conviction, deferred judgment, or deferred sentence may affect a defendant ’s status under federal immigration laws.

(4)That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant ’s own behalf and to have compulsory process in securing their attendance.

(5)That if the defendant pleads guilty there will not be a further trial of any kind,so that by pleading guilty the defendant waives the right to a trial.



So the defendant is told: 1) They have the right to an attorney, and one at the public expense if they are "indigent," 2) Both the criminal and potential immigration ramifications of the guilty plea, 3) The right to a jury trial and many of the details that entails.



Under the Tovar theory, this wouldn't be enough: the Court would not only have to tell the defendant that there is a right to counsel, but why having a lawyer is a darn good idea. But how much hand-holding should the Court be required to do once the defendant has been informed of the basic right to counsel? Should it further be required to tell the defendant that forgoing counsel also means that the defendant would not be able to assert the ineffective assistance of counsel ground upon appeal - a perennial favorite? And on the ramifications side of it - what about requiring the Court to point out that a conviction could look bad on your job record?



I think the US Supreme Court got this one right: The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea. To extend the constitutional requirement to cover the details of why counsel could be advisable is to open the door to a constitutional challenge each and every time a defendant regrets a plea, so long as he or she could point to any potential negative consequence that wasn't outlined in the plea proceeding.