Monday, November 21, 2005


Blawg Review #33 is up on Overlawyered. Some highlights:

Every so often, through luck or pluck, the “fair use” side manages to
win one
in copyright litigation (Ron Coleman, Likelihood of Confusion).

What sorts of squirm-inducing compliments do criminal defense lawyers hear from their clients after scoring legal points on their behalf? (Ken Lammers, CrimLaw)

San Diego lawprof Gail Heriot discovers a convicted rapist is living a few doors down from her, which gets her to thinking about the interaction of “Megan’s Law” statutes and statutory rape.

The blawgosphere likes nothing more than navel-gazing, and the New Yorker's outing of anony-blawger "Article III Groupie" as Newark AUSA David Lat and resulting implosion of "her"/his popular "Underneath Their Robes" blawg has generated lots of curiosity and posts with Austin Powers references; the story even made Drudge and the New York Times. Blawg Review has a retrospective look at the blawg.

There's lots more where that came from. . .


Meanwhile, there's fresh caselaw from the Iowa Supreme Court.

STATE V. BUTLER addresses the Court's ability to deviate from the scheduled fine in simple misdemeanor cases and impose the statutory maximum punishment available for a simple: 30 days in jail and a $500 fine. Simple misdemeanors in Iowa fall into two categories, scheduled and nonscheduled violations. Scheduled violations have the penalty prescribed by statute is a dollar fine in a fixed amount, unscheduled can be anything in the range allowed by statute: a fine of $50-$500, and/or jail time up to 30 days. The process by which the two are charged is slightly different as well: scheduled violation charges can be brought either by citation (ticket) or by filing a complaint with the court. Unscheduled violations must be brought by complaint. The legislature does provide a mechanism for allowing scheduled violations to be punished more heavily: Sections 805.11 and 805.10 provide that if it appears from the evidence that the violation results in death or serious injury, the scheduled fine does not apply and the penalty shall be increased within the limits provided by law for the offense. The issue here is whether the State can just show up at the citation hearing and argue that the case involved serious injury or dath and therefore merits more strenuous punishment, or whether the State has to bring the charge via complaint rather than citation and get the case set for trial to prove the extenuating circumstances beyond a reasonable doubt.

In the instant case, Butler had caused a head-on collision when the van he was driving crossed the centerline, allegedly because he'd fallen asleep. A jury had already acquitted Butler on three counts of homicide by vehicle and two counts of serious injury by vehicle. The State was now trying to get consecutive 30-day sentences and maximum fines on the scheduled violations of failure to yield, failure to maintain control, and careless driving - normally $35 fines.

The Court found that the State had not provided sufficient notice of the intent to seek the enhanced penalty, likening the facts that supported the increase to an additional element of a crime:
The present case can be decided based on the traditional due process requirement that the defendant be given notice of the charge sufficient to enable him to prepare a defense. Sufficient notice was not given here because there were no allegations in the complaint to alert the defendant to the State’s intent to convict and sentence him for a simple misdemeanor based on traffic violations resulting in death or serious injury. . . . the State filed separate complaints charging the defendant with violating Iowa Code sections 321.288 and 321.297. The complaints did not include any reference to the fact the defendant’s conduct resulted in death or serious injury to other motorists, nor did the complaints cite to sections 805.10(1)(a) and 805.11, which authorize jail time and an increased fine under such circumstances. Therefore, the statutory maximum punishment to which the defendant could be sentenced for the charged crimes was the scheduled fine because that was the maximum sentence the judge could impose “without any additional findings.” . . . Only if the court found the additional fact of death or serious injury would the defendant be subject to sentencing under the simple misdemeanor sentencing statute. Because the additional fact—death or serious injury—increased the penalty for the crime beyond the authorized statutory maximum for a scheduled violation, this fact was “the functional equivalent of an element of a greater offense” than the one charged.

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD v. HOWE involves discipline of a former city prosecutor regarding his plea bargaining system. Apparently, the city of Spencer had a longstanding standard plea agreement if you wanted a moving violation dropped to a non-moving:
Typically, the city would agree to reduce a simple misdemeanor moving traffic violation to a simple misdemeanor cowl-lamp violation; in return, the defendant would plead guilty to the amended citation.[2] See generally Iowa Code § 321.482 (2005) (stating violations of chapter 321 are simple misdemeanors unless otherwise declared). A plea agreement was generally sought by the defendant to avoid an adverse impact on the defendant’s license or auto insurance. In each instance, the amendment was allowed and the guilty plea was accepted by Magistrate Nancy Whittenburg, now a district court judge.

The amendments were also only allowed if the citing officer agreed to the change. For the curious, here's the cowl-lamp statute: a motor vehicle “may be equipped with not more than two side cowl or fender lamps which shall emit an amber or white light without glare.” Iowa Code § 321.406. The opinion states that Howe admitted that vehicles have not been equipped with cowl or fender lamps “for a considerable number of years.” Because the only way of violating the statute by the way it is worded is to have more than two side cowl or fender lamps, it is apparently impossible for a modern vehicle to have been in violation of it. Regardless, Howe had thus amended over 150 charges, and Judge Whittenburg had signed off on the amendments. Basically, it was felt that if everyone knew what was going on, and the amendment benefitted the defendants, it wasn't unethical. The Supreme Court disagreed:
We think the respondent’s conduct clearly violated the Iowa Code of Professional Responsibility. DR 7-103(A) states that a prosecutor “shall not institute or cause to be instituted criminal charges when the lawyer knows or it is obvious that the charges are not supported by probable cause.”[3] There is no dispute in the present case that the cowl-lamp charges were not supported by probable cause and that the respondent knew it. . . . The fact that the original traffic citations may have been supported by probable cause is beside the point because Howe is not being disciplined for instituting the original charges. His ethical violation arises from the amended charges alleging cowl-lamp violations, which clearly lacked probable-cause support. . . . Likewise, the fact that plea bargains to lesser or related charges are authorized by our rules of criminal procedure is also irrelevant. . . . Howe is not being disciplined for allowing the defendant to plead guilty to a reduced charge. Again, his ethical violation is filing an amended charge that is not supported by probable cause.

Howe's case doesn't end there, however. He was also charged with a violating the rules against conflicts of interest. In one case, Michael Mouw was charged with four offenses by the Spencer police department in late 2002 and early 2003. Apparently, one of the charges was a state charge, the remaining three were city charges. Howe represented Mouw on the State charge (that was prosecuted by the county attorney), but represented both Mouw and the city on the other three matters and represented Mouw on an administrative driver’s license problem arising out of one of the criminal charges Howe prosecuted. From the opinion, it appears Mouw hired Howe on the burglary charge, and in the process of negotiating a plea on that charge, he agreed to wrap in the minor city charges. Once that deal was done, he represented Mouw on the license issue. This pretty much conforms with what the Court indicates was his standard practice:
[W]hen asked to represent defendants on charges filed by the Spencer police and prosecuted by the county attorney. . . Howe would tell such defendants that he could not represent them against the Spencer police and that he would have a conflict of interest if he were to go to trial against Spencer police officers. Notwithstanding this conflict, Howe would offer to obtain the police records informally from the county attorney in order to evaluate the case. He would then review the records and give the defendant his opinion as to whether the case could be successfully defended. If the client chose to defend against the charge, Howe would refer the case to another lawyer. If Howe believed there was no defense, he would recommend a second opinion. If the defendant did not want to defend the charge or obtain a second opinion, Howe would contact the prosecutor about the possibility of a plea agreement. Howe would also “take care” of the initial appearance and arraignment. If the defendant ultimately pled guilty, Howe would assist with the plea.

The Court noted two other cases that followed that same general pattern. They discussed the impact of Howe's actions on the public perception of the legal system:
When people learn that a city prosecutor represents the very defendants he is prosecuting, they will not view the justice system as fair or impartial. They will also rightly question the motivation of a prosecutor who agrees to a disposition favorable to a criminal defendant and then later uses the favorable result for the advantage of the defendant whom the prosecutor now represents. The respondent’s repeated disregard of his conflicting loyalties generates distrust and skepticism of the courts, and reflects adversely on the entire bar. . . . Unfortunately, Howe’s routine reduction of traffic citations to cowl- lamp violations has a similar impact. Admittedly, plea bargains are a common and useful tool for resolving criminal cases. But when charges are filed that are known to all to be bogus and guilty pleas to those charges are accepted in order to allow defendants to escape the adverse consequences of the offenses they actually committed, there can be only one result: respect for the court system is diminished and the public’s confidence in the integrity of the criminal justice system is seriously undermined. While the disposition of a traffic offense in the manner employed here may be the expedient way to dispose of a citation to the satisfaction of the parties involved, it sends the wrong message to the public. It makes a mockery of the justice system when a defendant is punished for violating a statute that he unquestionably did not violate.

The court then suspended Howe's legal license indefinitely, with no possibility of reinstatement for a period of four months.

Regarding the plea reductions: as a new prosecutor, I always got "offers" from defense counsel to plead to nonmoving violations, often combined with an offer to pay a higher than usual fine, in order to preserve the defendant's licensing or insurance status. I see nothing wrong with that in general, as it saves the State the cost and effort of a jury trial, and saves the defendant the risk of conviction. As a rule, I always required it to be something the defendant actually did. I remember one time in Muscatine county when defense counsel, the defendant, the officer, and myself were all reading through citation books, trying to find something, anything that the defendant could honestly plead guilty to. We did eventually find something, though I believe it took us about a quarter of an hour (almost as long as the trial would've taken, so I was actually being quite nice). So the scenario is not that unusual, but I think the infraction is real. You can't just make up a charge out of thin air.

Regarding the conflicts of interest: This opinion basically lays down the blanket rule that city attorneys cannot represent criminal clients on any state charges originating by the police department of the city which the attorney represents. I think that's a bit of a departure from what was understood before. In this case, Howe took it too far in trying to wear two hats at the same time. Not such a good idea, to put it mildly. But I recall other city attorneys who would take defense cases in which there were no city charges pending, but the tickets were written by the city police. In other words, one guy, two hats, but worn at different times. How this system would come about involves the economics of rural Iowa: in most very rural counties, there is a sheriff's office, and the city police force of the town constituting the county seat. If the other towns even have a police officer, it's usually some guy from the county seat town working a second job on his down time. The state patrol is there, but under the current budget constraints they're usually spread pretty thin. So many of the state charges will be brought by city police officers, wearing one hat or another. Meanwhile, the city attorney position in those areas will probably not carry a sustainable salary - rural cities can't afford that much. So the city attorney keeps a private practice to make up the difference. Defense work is a decent chunk of that practice, and the theory was that so long as there was no actual conflict between the parties, it's okay (the two hats non-simultaneous scenario). I think this case changes the picture slightly by basically limiting the criminal cases the city attorney can take to those originating with the sheriff's office or the state patrol. One guy, one hat. Period. I don't think it's an incorrect analysis, the Court is quite right in pointing out that the public could well think the city attorney was somehow "in cahoots" with the officers to fix cases if he takes defense work involving those same officers, even if he doesn't push the line like Howe did. But I understand why the system got that way . . . and I hope tax work and wills pay well these days.

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