The Iowa State Bar Association's Criminal Law Section Presents 2016 Criminal Law Seminar Friday, April 29 ISBA Headquarters The Iowa State Bar Association's Criminal Law Section Presents 2016 Criminal Law Seminar Caveat The printed materials contained in this book and the oral presentations of the speakers are not intended to be a definitive analysis of the subjects discussed. The reader is cautioned that neither the program participants nor The Iowa State Bar Association intends that reliance be placed upon these materials in advising your clients without confirming independent research. The Iowa State Bar Association's Criminal Law Section Presents 2016 Criminal Law Seminar SCHEDULE - FRIDAY, APRIL 29 8:00 - 9:00 - Registration and Welcome Speaker: John M. Sandy, Sandy Law Firm PC 9:00 - 10:00 - Case Law Update Speaker: B. John Burns, Federal Public Defender Office 10:00 - 10:15 – Break 10:15 - 12:00 - Making a Murderer Speaker: Dean Strang, Strang Bradley 12:00 - 1:00 - Lunch (provided with registration) 1:00 - 2:00 - Juvenile Sentencing Speaker: Gordon Allen, Visiting Professor, Drake University Law School 2:00 - 2:15 - Break 2:15 - 3:15 - Ethical Considerations in the Representation of the Mental Health Client Speaker: Jerry Foxhoven, Drake Legal Clinic 3:15 - 4:15 - Effective Use of a Private Investigator Speakers: Matthew Sease, Kemp & Sease and Terry Klooster, Finality Investigations 2016 Case Law Update 9:00 a.m.-10:00 a.m. Presented by B. John Burns Iowa Federal Public Defender's Office 400 Locust St., Suite 340 Des Moines, Iowa 50309 Friday, April 29, 2016 2015-16 IOWA CRIMINAL CASE LAW UPDATE outline prepared by B. John Burns Attorney at Law April 29, 2016 NOTE: All personal opinions expressed in this outline are of the author, and in no way represent the views of the Federal Public Defender or any other person. -ii- I. Constitutional Law. . . . . . . . . . . . . . . . . . . 1 A. Separation of Powers, Iowa Const. art. III, §1 B. Fourth Amendment 1. Expectations of Privacy – Hotel Rooms 2. Search – Satellite-Based Monitoring System 3. Warrant Searches a. Defendant’s Prior Criminal History b. Anonymous Tips 4. Warrantless Searches a. Traffic Stops (1) Illuminated License Plates (2) Extension for Dog Sniff b. Searches Incident to Arrest – Containers in Vehicle Not Within Reach c. Persons on Probation or Parole --Special Needs Exception to Warrant Requirement – Searches by Parole Officers d. Search of Person – Consent C. Fifth Amendment – Self-Incrimination – Miranda – Custody D. Sixth Amendment 1. Right to Counsel a. Iowa Const. art. I, section 10– Simple Misdemeanors b. Ineffective Assistance (1) Breach of Duty (2) Prejudice 2. Right to Jury Trial – Death Penalty Cases – Hybrid Jury Verdicts 3. Confrontation – “Testimony” E. Eighth Amendment 1. Mandatory Sentences for Juvenile Offenders a. Imposition – Factors b. Remedy 2. Death Penalty a. Procedures (1) Joint Penalty Proceedings for Co-Defendants (2) Jury Instructions – Mitigating Factors – Standard b. Means of Execution – Injunctive Relief F. Fourteenth Amendment 1. Due Process a. Iowa Due Process – Iowa Const. art. I, § 9 – Retroactive Application of New Rule of Law b. Void for Vagueness – Armed Career Criminal Act – Residual Clause c. Enhancement of Sentence w/Prior Uncounseled Misdemeanor Convictions 2. Equal Protection – Iowa Const. art. I, § 6 II. Substantive Offenses. . . . . . . . . . . . . . 17 A. Burglary – Sufficiency – Occupied Structure – Abandoned Building -iiiB. Controlled Substances 1. Federal – Analogue Controlled Substances – Scienter 2. Sufficiency – Constructive Possession C. Financial Crimes – Fraudulent Practices 1. Aggregation of Losses 2. Instructions – Intent to Deceive D. Firearms Offenses 1. Possession of a Firearm by a Felon – Ability to Dispose of a Firearm Following a Felony Conviction 2. Dangerous Weapons – Stun Gun 3. Sufficiency – Constructive Possession E. Homicide – Murder – Alternative Means of Commission. 1. Direct Killing – Causation 2. Aiding and Abetting 3. Joint Criminal Conduct F. Public Intoxication – Public Place G. Sexual Offenses – Lascivious Acts – Sufficiency – Skin-to-Skin Contact H. Threats – Scienter III. Pre-trial Issues. . . . . . . . . . . . . . . . . . . . 21 A. Iowa Code § 804.20 1. Right to Call Attorney or Family Member 2. Right to Meet Privately with Counsel – Necessity of Request B. Limitations – Kidnaping C. Speedy Indictment – Different Offenses D. Merger of Charges – Attempted Homicide and Voluntary Manslaugher E Provision of Funds for Investigative Services – Ex Parte Hearing F. Motions and Rulings – Removal of Prosecutor – District Court Discretion IV. Trial Issues. . . . . . . . . . . . . . . . . . . . . . . 24 A. Evidence 1. Relevance – Victim’s Propensity for Violence 2. Iowa R.Evid. 5.404(b) (Other Bad Acts – Identity) a. Prior Assaults by Defendant b. Flight (1) Analysis under Rule 404(b) (2) Admissibility of Evidence 3. Expert Testimony – Iowa R. Evid. 5.703 a. Opinions Based Upon Non-Scientific Facts b. Expert Testimony Vouching for the Credibility of Complaining Witnesses 4. Hearsay – Exceptions – Iowa R. Evid. 5.803(4) – Statements for the Purpose of Medical Diagnosis or Treatment B. Motions – Post-Trial Motions – Motion to Dismiss – Juror Bias C. Jury Instructions -- Contradictory and Confusing Instructions -iv- V. Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . 28 A Particular Sentences – Enhancements for Prior Convictions – Uncounseled Simple Misdemeanors B. Sentencing Procedures 1. Victim Impact Statements 2. Resentencing after Sentence Vacated – Authorized Sentences. VI. Appeal and Collateral Review.. . . . . . . 29 A. Direct Appeal 1. Direct Appeal – Preservation of Error 2. Standard of Review a. Constitutional Issues – Probable Cause for Search Warrant b. Removal of Prosecutor Based Upon Conflict of Interest c. Court’s Supervisory Powers 3. Appellate Remedies a. Conviction on a General Verdict Where Alternative Means of Committing Offense is Invalid b. Vacation of Beneficial Plea Agreement c. Resentencing v. Amending Sentencing Order B. State Habeas Corpus – Iowa Code § 663 – “In custody” C. State Postconviction Relief – Limitation D. Federal Habeas Corpus – Extent of Review 1. Review of State Factual Determination 2. Prejudice VII. Miscellaneous Issues. . . . . . . . . . . . . . . 35 A. Suit under 42 U.S.C. § 1983 – Qualified Immunity B. Remedies for Wrongfully Imprisoned Person – Iowa Code § 663A.1(1). -1- I. Constitutional Law A. Separation of Powers, Iowa Const. art. III, §1 Nguyen v. State, _____ N.W.2d _____ (Iowa 2016) Because the Iowa Legislature has never considered whether a conviction of felony murder could be based upon the willful injury or other assault that caused death, the Iowa Supreme Court in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006) did not encroach on the legislative function but merely interpreted the law and did not violate the separation of powers provision of Iowa Const. art. III, § 1, either when it decided Heemstra or when it determined that Heemstra was prospective only in its application. B. Fourth Amendment 1. Expectations of Privacy – Hotel Rooms State v. Tyler, 867 N.W.2d 136 (Iowa 2015) Despite the fact that the defendant in a prosecution for murder in the first degree may have had rented a hotel room for the sole purpose of delivering her infant child and perhaps even killing it, where the defendant rented the room, paid for it, then rented the room and paid for a second night when it became available, and left the do not disturb sign on the door in the meantime, the defendant demonstrated a legitimate expectation of privacy in the hotel room. – Justice Zager points out that to establish a legitimate expectation of privacy in the room Ms. Tyler must demonstrate that she had “(1) a subjective expectation of privacy and (2) the expectation was reasonable.” A person may have an expectation of privacy in a hotel room. But not all hotel occupants have reasonable expectations. The classic example is the person who rents a room for the sole purpose of packaging and distributing drugs. State v. Brooks, 760 N.W.2d 197 (Iowa 2009). The factors that worked in Ms. Tyler’s favor were that she rented the room in her own name, she brought her personal property into the room, she placed a do not disturb sign on the door, and the fact that it appeared she was checking into the room to conceal from her family the fact that she was having a child. On rhis ground, Ms. Tyler’s case was remanded1 to determine whether the search of the room was justified by an exigency such as the community caretaking exception to the warrant requirement, 1 The case was already remanded on other grounds. -2or by the principle of inevitable discovery. One intriguing question is Justice Waterman’s position on this issue. He begins his partial dissent/partial concurrence indicating, “I respectfully concur in part IV and dissent from part III of the majority opinion,” then proceeds to explain his disagreement with portions of the majority opinion that result in reversal of Ms. Tyler’s conviction, and his agreement with the parts of the opinion that result in affirmance. He does not, however mention the Fourth Amendment issue which, at the very least, results in a remand. The Fourth Amendment issue arose in Part IV of the majority opinion. Nevertheless, he concludes his opinion with the statement, “I would affirm Tyler’s conviction.” 2. Search – Satellite-Based Monitoring System Grady v. North Carolina, _____ U.S. _____, 135 S.Ct. 1368, _____ L.Ed.2d _____ (2015) The Fourth Amendment protects against the unreasonable collection of information not just in criminal prosecutions, so requiring a person on release for a sex offense to submit to a satellite-based monitoring system is a “search.” – Justice Per Curiam expanded upon the United States v. Jones (2012) holding that the attachment of a global positioning satellite device to monitor a vehicle is a Fourth Amendment search. The Court remanded the case to the state court to determine, by considering the totality of circumstances, whether the search was reasonable. 3. Warrant Searches – Probable Cause a. Defendant’s Prior Criminal History State v. McNeal, 867 N.W.2d 91 (Iowa 2015) The defendant’s prior criminal history may be relevant in determining whether probable cause exists to support the issuance of a warrant, and it is not improper for the issuing court to consider such information. -3b. Anonymous Tips State v. McNeal, 867 N.W.2d 91 (Iowa 2015) During an investigation of a series of construction site burglaries in which the defendant has been identified as a suspect, the district court, in determining whether probable cause supported a warrant to search a trailer belonging to the defendant, was entitled to find that information provided by a confidential informant is credible where law enforcement verifies “(1) the location of the trailer as reported by the tipster; (2) that the trailer possessed the features as reported by the tipster; and (3) that the trailer belonged to [the defendant] as reported by the tipster,” and where law enforcement provided the additional detail that the trailer had recently been moved. – Justice Zager determines that the circumstances of this case are distinguishable from those in State v. Kooima, 833 N.W.2d 202 (Iowa 2013) in which an anonymous tip that a group of men were leaving a bar in a state of intoxication, and nothing more, was not sufficient to support probable cause. The cases probably are distinguishable. However, I’m not sure I know where the line is. So you defense attorneys keep arguing that the anonymous tips are not sufficient, and you prosecutors keep arguing that they are. And, in time, maybe the Court will sort it out. McNeal makes the additional argument that if the Court were to excise the anonymous tip and the district court’s reliance upon his prior criminal history, discussed below, the remainder of the circumstances were insufficient to establish probable causes for a warrant to search the trailer. Justice Zager devotes about seven pages of his slip opinion to his response that well yes, they actually were. The reliance upon a cooperating informant who was complicit in Mr. McNeal’s offenses was appropriate. The informant was named. He placed himself at risk by cooperating. Most of what he told law enforcement was corroborated. And many of his statements ran against his penal interest. There was a definite nexus between the trailer and the items law enforcement was seeking, in that construction tools often are stored in trailers much like Mr. McNeal’s. Finally, there was no reason the issuing judge could not rely in part on the expertise of law enforcement officers who believed that, based upon all of the circumstances, construction tools would be found in the trailer. -44. Warrantless Searches a. Traffic Stops (1) Illuminated License Plates State v. Lyon, 862 N.W.2d 391 (Iowa 2015) Iowa Code § 321.388 requires that (1) a license number be illuminated with a white light near the rear plate, and (2) the number be “clearly legible from a distance of fifty feet to the rear” so while, under State v. Reisetter, 747 N.W.2d 792 (Iowa App.2008), a law enforcement officer does not have reasonable suspicion to stop a vehicle on the grounds that the plate is not clearly legible when the officer is traveling 100 feet behind the vehicle, the officer does have reasonable grounds for a stop where the officer believes the vehicle has no light at all illuminating the plate. (2) Extension for Dog Sniff Rodriguez v. United States , _____ U.S. _____, 135 S.Ct. 1609, _____ L.Ed.2d _____ (2015) The stop of a vehicle based upon traffic violations observed by law enforcement is valid only as long as necessary to handle the observed violation, and it is unreasonable to extend the stop beyond that time for the purpose of conducting a dog sniff of the vehicle for drugs. – Rodriguez is a 5-4 decision, the majority opinion written by Justice Ginsburg. The split is interesting, with Chief Justice Roberts and Justice Scalia siding with the majority. The case came out of the District of Nebraska (the defendant represented by Assistant Federal Defender Shannon O’Connor on the eve of his retirement) which followed the Eighth Circuit rule that adding ten minutes or so to the length of a stop is a de minimus intrusion. The dog sniff does not further the inquiry into the traffic violation, Justice Ginsburg explains, but is aimed rather at detecting evidence of wrongdoing. The case was remanded for a determination as to whether detention for the dog sniff was justified by reasonable suspicion of criminal activity. -5In the matter of property seized from Pardee, 872 N.W.2d 384 (Iowa 2015) Where an out-of-state traveler was stopped by a highway patrolman for having a partially non-working taillight and for following a semi too closely, the length of the stop exceeded the time reasonably necessary to investigate the grounds for the stop where law enforcement engaged in extensive questioning of the traveler for reasons unrelated to the grounds for the stop and where law enforcement subsequently detained the vehicle’s occupants to bring in a drug dog. – This case is not the appeal of a criminal conviction, but rather the seizure of $33,000 during the stop. Mr. Pardee was actually acquitted of charges stemming from the proceeds of the stop. The district court refused to return the cash on a theory of issue preclusion. Issue preclusion doesn’t apply, Justice Mansfield found, because Mr. Pardee was acquitted. An acquittal does not resolve the forfeiture issue in favor of the government. b. Searches Incident to Arrest – Containers in Vehicle Not Within Reach State v. Gaskins, 866 N.W.2d 1 (Iowa 2015) Police are not entitled, as a search incident to arrest, to search a locked safe in the back of a vehicle when the defendant has been removed from the vehicle and taken into custody, even though prior to the defendant’s removal from the vehicle law enforcement discovered evidence of drug activity in the vehicle and had probable cause to believe evidence of drug activity would be found in the safe. – As in recent years, the Court capped off its 2014-15 term with a grand finale of decisions, including Gaskins and several others. As in many other end-of-term opinions, Gaskins was a 4-3 split, and was characterized by some of the most intense, almost personal, infighting to date between the two well-delineated factions of the Court. Gaskins is also another instance in which the Court found more protection under the search and seizure provisions of article I, section 8 of the Iowa Constitution than the federal courts have found under the Fourth Amendment. In Arizona v. Gant, 556 U.S. 332 (2009) the United States Supreme Court held that law enforcement may search a vehicle incident to arrest only if the person being arrested is within reaching distance of the vehicle or if law enforcement has probable cause to believe the vehicle contains evidence consistent with the grounds for the original arrest. There was -6no dispute but that law enforcement had probable cause to believe the latter applied in Gaskins. Applying article I, sec. 8, however, Justice Hecht announced that the policy underlying searches incident to arrest2 do not support the second Gant alternative. Five of the seven justices authored opinions. But the real battle lines in Gaskins were drawn in Justice Appel’s special concurrence and Justice Waterman’s dissent. Frustrated by the increasing frequency of decisions in which the Iowa interpretations have diverged from federal interpretations of parallel provisions, Justice Waterman advances a detailed argument that, among other things, the Court should adopt neutral criteria for doing so. Meticulously, Justice Appel deconstructs each of Justice Waterman’s arguments. The dissent also argues profusely that the search of Griffin’s safe was justified under the automobile exception to the warrant requirement. The majority had determined that this argument was not preserved sufficiently below, another point vigorously disputed in both dissents. Justice Appel, however, does address the automobile exception and, joined by two other justices, hints strongly that the automobile exception may also be on the endangered list under the Iowa Constitution. The defense bar should pay particular attention to this language and, while it was unnecessary to address Gaskins’ ineffective assistance claim, Justice Appel warns that, to avoid being held ineffective, “defense counsel should have a working knowledge of the larger state constitutional trends around the country.” c. Persons on Probation or Parole --Special Needs Exception to Warrant Requirement – Searches by Parole Officers State v. King, 867 N.W.2d 106 (Iowa 2015) A parole officer has a special need to conduct searches of the residences of parolees, when the searches are conducted to further the objectives of supervision and not for the purposes of law enforcement investigation, where the officer has reasonable suspicion that a condition of release is being violated and the search does not extend in scope beyond areas related to the suspicion. – At first (and maybe second, and third) glance, King appears to represent a giant step 2 This is the first time in any case I recall seeing the acronym SITA used for a search incident to arrest. -7backward by the Court. Beginning with State v. Ochoa, 792 N.W.2d 260 (Iowa 2010) and running through State v. Baldon, 829 N.W.2d 785 (Iowa 2013) and State v. Short, 851 N.W.2d 474 (Iowa 2014) the Court progressively carved out protection under article I, section 8 of the Iowa Constitution for persons on parole. There was some suggestion in State v. Kern, 831 N.W.2d 149 (Iowa 2013) that a warrantless search by a probation officer, and not law enforcement, might be justified as a special needs search. Here, Chief Justice Cady crossed over with the dissenters in the earlier cases, and wrote the King majority. As always, Judge Appel writes a scholarly dissent, at one point making the intriguing suggestion that the doctrine of “reasonable expectations of privacy” is a concept that itself has been on parole, and the time has come to “revoke” that parole. d. Search of Person – Consent State v. Prusha, _____ N.W.2d _____ (Iowa 2016) Consent to a search of the person given by an individual stopped and questioned by law enforcement at 1:10 a.m. was not involuntary under the totality of circumstances, where there was no indication the person suffered from any impairment or disability, the individual was stopped by a single law enforcement officer rather than a group, the officer did not assert any claim of authority to conduct a search, and there was no indication that the encounter between law enforcement and the individual was lengthened by the request for the search. – On appeal, Prusha attempted to use his case to persuade the Court to hold that police must advise an individual of his or her right to decline consent to search, as it suggested it might do in State v. Pals, 805 N.W.2d 767 (Iowa 2011). At the district court level, Mr. Prusha challenged admission of statements he made on state, as well as federal, constitutional grounds. He also mentioned “the statutes of the State of Iowa,” but not the Iowa Constitution, in challenging the search. Thus, Justice Hecht found, he failed to preserve his request that the Court find an independent state constitutional ground to challenge the legality of the search. -8C. Fifth Amendment – Self-Incrimination – Miranda – Custody State v. Tyler, 867 N.W.2d 136 (Iowa 2015) Where law enforcement told the defendant that they wished to speak with her about the death of her infant child and she agreed, where they inquired several times about the state of her health, where, while she was taken to the police station and questioned, she was not handcuffed or placed in the car by force, where she was given a number of breaks during three hours of questioning, where questioning occurred in a carpeted, well-lit room where only two law enforcement officers were present at any one time and those officers were plain-clothed, where officers told the defendant that they were not there to judge her, where law enforcement used language that was not accusatory, and where the door remained unlocked and the defendant was assured she was free to leave at any time, the defendant was not in custody for Fifth Amendment purposes. – When Ms. Tyler was interviewed later, she was told that law enforcement was now planning to charge her. At that point she was asked whether she wished to retract the admissions she had made and she indicated she did not. She was then given the Miranda warnings and proceeded to confirm all of her pre-Miranda admissions. Despite the fact that she had very recently given birth and had lost a substantial volume of blood, the majority concluded that, considering the totality of the circumstances, Ms. Tyler’s Miranda waiver was voluntary. Finally, for many of the same reasons set out in resolving the Miranda claims, the majority found that the confession itself was voluntary, independent of Miranda. The partial dissents by Justices Hecht and Appel focused on the Fifth Amendment holdings. In Justice Hecht’s view, Ms. Tyler was in custody. Law enforcement told her she was free to leave, knowing this was what they had to say to avoid having to give the Miranda advice. Law enforcement contacted Ms. Tyler to give a statement, and not vice versa. Contrary to Justice Zager’s view, Justice Hecht saw the police as being confrontational at the outset. The invitation to accompany police to the police station was an indication of custody, and questioning lasted three hours. There were lengthy breaks, but each concluded with law enforcement reviewing with Ms. Tyler the inculpatory statements she made earlier. Having found that Ms. Tyler was in custody when she was questioned, Justice Hecht advocated applying analysis in the plurality decision in Missouri v. Seibert, 542 U.S. 600 (2004) that disapproved of the law enforcement practice of redeeming an interrogation conducted in violation of Miranda with a “mid-stream” Miranda admonition. Law enforcement here did not employ any curative measures prior to requestioning Ms. -9Tyler after giving the warnings, and she was not informed that her earlier statement could be used against her. Justice Appel wrote to argue that the Court should diverge from the holding of the United States Supreme Court in Oregon v. Elstad, and ultilize the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471 (1963) in evaluating Miranda violations. D. Sixth Amendment 1. Right to Counsel a. Iowa Const. art. I, section 10– Simple Misdemeanors State v. Young, 863 N.W.2d 249 (Iowa 2015) Defendant is entitled to counsel under article I, Section 10 of the Iowa Constitution in a prosecution for a simple misdemeanor, where the charge carries the possibility of incarceration, even if the defendant does not receive a sentence of incarceration. – This is another area where at least majority of the Court, led by Justice Appel, interprets the Iowa Constitution to provide more protection than that afforded by federal courts under a parallel provision of the United States Constitution. Recently, the United States Supreme Court held in Nichols v. United States, 511 U.S. 738 (1994) that there is no right to counsel in misdemeanor cases where the defendant does not actually receive a prison sentence. One explanation for the more expansive Iowa approach is that article I, section 10 provides the right to counsel “[i]n all criminal prosecutions, and in cases involving the life, or liberty of an individual.” The more limiting language in the latter obviously refers to something other than criminal prosecutions – for example, civil proceedings that might result in a loss of life or liberty. The import of the Young holding is that, pursuant to the due process provision of article I, section 9 of the Iowa Constitution, an uncounseled conviction of a simple misdemeanor may not be used to enhance a sentence for a subsequent criminal conviction unless there is evidence of a valid waiver. -10b. Ineffective Assistance (1) Breach of Duty Maryland v. Kulbicki, _____ U.S. _____, 136 S.Ct. 2, _____ L.Ed. 2d _____ (2015) Where, at the time of defendant’s 1995 trial, comparative bullet lead analysis we still an accepted form of forensic evidence, trial counsel was not ineffective in failing to challenge the analysis by introducing a report supporting the analysis and then pointing out the flaws that led ultimately to its discreditation. State v. Lopez, 872 N.W.2d 159 (Iowa 2015) Trial counsel is ineffective in failing to object to actions of the prosecuting attorney undermining at sentencing the plea agreement of the parties under which the parties would recommend jointly that the defendant receive a deferred judgment and probation, where the prosecutor displayed photographs of the child endangerment victim suggesting, at least by implication, that the defendant would be a danger to the community if placed on probation. – While the prosecutor gave lip service to the plea agreement, her actions at sentencing clearly appear to have been a key factor in the judge’s decision to impose a period of incarceration. The prosecutor did not, however, violate the agreement in presenting victim impact statements of the father of the victim and of the guardian ad litem, both recommending imprisonment, provided that the prosecutor did not seek out their testimony. Both were entitled to present statements at sentencing. Justice Waterman’s opinion in Lopez is an excellent review of the case law involving enforcement of plea agreements. (2) Prejudice State v. Lopez, 872 N.W.2d 159 (Iowa 2015) Where counsel is ineffective in failing to object to the prosecution’s breach of a plea agreement by undermining the joint sentencing recommendation, the question in determining whether the defendant was prejudiced is not whether the defendant would have received a different sentence had counsel objected, but rather whether defendant would have been offered the opportunity to withdraw his or her plea or whether the court would schedule a new sentencing hearing in which the prosecutor would be required to comply with the agreement. – Essentially, prejudice is presumed under these circumstances. -112. Right to Jury Trial – Death Penalty Cases – Hybrid Jury Verdicts Hurst v. Florida, _____ U.S. _____, 136 S.Ct. 616, _____ L.Ed.2d _____ (2016) Florida’s hybrid death penalty sentencing scheme, under which the jury makes a recommendation that the defendant receive either the death penalty or a life sentence and the judge makes the factual findings necessary to reach a verdict, violates the Sixth Amendment right to have all facts that increase punishment found by a jury. – In reaching this decision, Justice Sotomayor follows Ring v. Arizona, 536 U.S. 584 (2002), and expressly overrules Hildwin v. Florida, 490 U.S. 638 (1989) and Spaziano v. Florida, 468 U.S. 447 (1984), in which the Court found that specific findings of fact need not be made by a jury in imposing the death sentence. 3. Confrontation – “Testimony” Ohio v. Clark, _____ U.S. _____, 135 S.Ct. 2173, _____L.Ed.2d _____ (2015) While not all statements to non-law enforcement individuals automatically are non-testimonial, a threeyear-old child’s statement to her teacher identifying her mother’s boyfriend as the source of her injuries was given in response to a question made for the purpose of determining whether the child needed protection, and not for the purpose of eliciting testimony against the boyfriend, and thus was not testimonial for Sixth Amendment purposes. – All nine justices joined in the result, although three joined in the judgment only. Joined, by Justice Ginsburg, Justice Scalia, the White Knight of the Confrontation Clause, lambasted Justice Alito for characterizing the decision in Crawford v. Washington, 541 U.S. 36 (2004) “as nothing more than ‘adopt[ing] a different approach.’” Justice Scalia takes particular exception to dicta in the majority opinion that the primary-purpose test is merely one of the circumstances which implicate the Confrontation Clause: The Confrontation Clause categorically entitles a defendant to be confronted with the witnesses against him; and the primary-purpose test sorts out, among the many people who interact with the police informally, who is acting as a witness and who is not. Those who fall into the former category bear testimony, and are therefore acting as “witnesses,” subject to the right of confrontation. There are no other mysterious requirements that the Court declines to name. Addressing a different issue, Justice Scalia argues, “[a] suspicious mind (or even one that is merely not naive) might regard this distortion as the first step in an attempt to smuggle longstanding hearsay exceptions back into the Confrontation Clause – in other words, an attempt to return to Ohio -12v. Roberts. But the good news is that there are evidently not the votes to return to that halcyon era for prosecutors; and that dicta, even calculated dicta, are nothing but dicta.” E. Eighth Amendment 1. Mandatory Sentences for Juvenile Offenders a. Imposition – Factors State v. Seats, 865 N.W.2d 545 (Iowa 2015) Under article I, section 17 of the Iowa Constitution, a district court imposing a sentence of life imprisonment without the possibility of parole on a defendant who was a juvenile at the time the offense was committed must consider each the factors set out in Miller v. Alabama, 132 S.Ct. 2455 (2012). – Cerro Gordo County District Court Judge Colleen Weiland must be scratching her head on this one, because nearly everyone else involved in this case is doing just that. Because State v. Lyle, 854 N.W.2d 378 (Iowa 2014) had not yet been decided prior to sentencing,3 Justice Wiggins benevolently elected to remand Mr. Seats’ sentencing back to Judge Weiland to do a better job of considering the Miller factors. But, as Justice Mansfield points out in his dissent, Judge Weiland had considered each of the Miller factors explicitly in reimposing Mr. Seats’ sentence of life without parole for a murder he committed when he was 17 years old. The real battle in this case should have been between Justice Mansfield and Justice Hecht, who wrote an articulate special concurrence arguing that, like sentences for nonhomicide offenses, sentences of life imprisonment without the possibility of parole categorically violate article I, section 17 of the state constitution when they involve defendants who commit the offenses as juveniles. Why this was not the issue, when it was sufficiently raised and argued, is the $64,000 question. Justice Wiggins’ take on this is that, if Seats goes back down to the district court and receives the same sentence – and based upon the extensive record Judge Weiland made the first time it is likely that he will – Mr. Seats may simply go back up and 3 Although Miller and State v. Ragland, 854 N.W. 2d 378 (Iowa 2014) (decided August 16, 2013) had come down prior to Mr. Seats’ November 22, 2013 resentencing hearing. -13relitgate the issue before the Supreme Court then. The suggestion is that he would have Justice Wiggins’ vote. He definitely has Justice Hecht’s vote. It’s hard to believe he would not also garner Justice Cady’s and Justice Appel’s. The opinions are already written – it’s just a question of who signs on to them. The view of the majority is that we are remanding the case, so it is not necessary to address the sweeping constitutional issue. Justice Mansfield responds that the mechanism of avoidance is not appropriate where the prevailing party receives a remedy less than what he or she is requesting. What Mr. Seats was looking for was a ruling that he may not receive a sentence of life without parole. What he got was a ruling that the district court fell short procedurally, and essentially another bite of the apple. Justice Mansfield does throw us something of a bone in his dissent. A sentence of life without parole does not categorically violate article I, section 17. Where the district court does fail to apply the Miller standard in imposing it, what is the role of the appellate court? He rejects the state’s suggestion that a Miller violation is simply a procedural violation, subject to error review. Where a juvenile offender receives a sentence of life without parole, the appellate court must review the sentence de novo, and make a substantive determination as to whether the Miller factors were supported by substantial evidence. He does, however, conduct such a review in this case, and finds that they are. Rapidly, Justice Hecht is joining Justice Cady and especially Justice Appel as the scholars on what some consider to be the liberal wing of the Court. Like them, he is writing long, well-researched and well-reasoned opinions breaking new ground using interpretations of the state constitution. One thing I have noticed about Justice Hecht, however, is his almost-Shakespearean creation and use of acronyms. I had never heard the acronym “SITA” used to signify a search incident to arrest until I read his opinion in State v. Gaskins, issued just a few days after Seats. And now, in Seats, I see the extensive use of “LWOP” for life without parole. Maybe I’ve just missed it, but I don’t think I’ve seen that before. And, to top it off, he got -14Justice Mansfield to follow suit in his dissent. The primary message that should flow from Seats, is that any attorney who has a client sentenced to life without the possibility of parole for a homicide committed when the client was a juvenile should argue that such a sentence categorically violates article I, section 17 of the Iowa Constitution. Justice Hecht has written your brief for you. If Mr. Seats doesn’t get there first, you may be able to make some law. b. Remedy State v. Yvette Marie Louisell, 865 N.W.2d 590 (Iowa 2015) In resentencing a defendant previously convicted of murder in the first degree and sentenced to a mandatory sentence of life without parole for an offense committed before the defendant was 18, following the holdings in Miller v. Alabama, 132 S.Ct. 2455 (2012) and its progeny that mandatory sentences of life without the possibility of parole violate the Eighth Amendment in cases in which the defendant was under 18 years of age at the time of the offense, the district court does not have the authority under Iowa law to substitute a sentence of twenty-years and time served, since the Iowa Code does not provide for such a sentence, nor is there authority to impose an alternative sentence of life with the possibility of parole after twenty-five years. – The remedy adopted by Justice Hecht in the 4-3 majority opinion was to substitute a sentence of life with the possibility of parole. In 2015, the legislature modified Iowa Code § 902.1 to provide three sentencing alternatives for juveniles convicted of murder in the first degree: (1) life without parole, (2) life with parole, or (3) life with the possibility of parole after a period of time articulated by the sentencing judge. Writing for the dissent, Justice Mansfield noted that, when a sentence is vacated as unconstitutional, for example, the case is generally remanded to the district court which applies the law in place at the time of resentencing, if the current law addresses the constitutional defect. The sentence selected by the district court may, in fact, be legitimate under the 2015 modification. Justice Mansfield would have remanded the case to the district court for resentencing under the current statute. At this point in history, the issue appears to be an academic one. In all of the cases in which Miller has resulted in an Iowa defendant being made eligible for parole, only Kristina Fetters has been released by the parole board. Ms. Fetters was terminally ill, and died soon afterward. -152. Death Penalty a. Procedures (1) Joint Penalty Proceedings for Co-Defendants Kansas v. Carr, _____ U.S. _____, 136 S.Ct. 633, _____ L.Ed.2d _____ (2016) The Eighth Amendment does not preclude a joint penalty phase hearing for codefendants in capital cases. – In Justice Scalia’s view, this was a Due Process question, and not an Eight Amendment one. (2) Jury Instructions – Mitigating Factors – Standard Kansas v. Carr, _____ U.S. _____, 136 S.Ct. 633, _____ L.Ed.2d _____ (2016) Because, under the Kansas death penalty scheme, the question of whether mitigating factors outweigh aggravating factors is a matter of judgment, and not a legal or even factual determination, the Eighth Amendment does not require the district court to instruct the jury that this determination need not be made beyond reasonable doubt. – Yeah, but what would it hurt? b. Means of Execution – Injunctive Relief Glossip v. Gross, _____U.S. _____, 135 S.Ct.2726, _____ L.Ed.2d _____ (2015) The district court properly declined to grant a preliminary injunction precluding execution of inmates using a three-drug protocol using, as the first step of the protocol, midazolam, where the inmates failed to establish that the protocol would cause an elevated risk of severe pain as compared to that caused by known available alternatives. – The first step of the three-drug process is administration of the drug that deadens the prisoner to the severe pain caused by the second and third steps. Two other drugs have been found to be effective in meeting this objective – sodium thiopental and pentobarbital. But the manufacturers of these drugs have refused to make them available for executions. The effectiveness of midazolam is questionable. Justice Alito wrote the majority opinion and Justice Sotomayor wrote the fourjustice dissent on the central issue. The salient battle in this case, was between Justice Breyer on one side and Justices Thomas and Scalia on the other, as they openly debate the constitutionality of continued use of the death penalty in the United States. Because of the proven unreliability of verdicts in capital cases and the inherent delays, Justice Breyer takes -16the position that the death penalty is cruel. It is now unusual, in that it is being used less and less and in fewer and fewer jurisdictions. F. Fourteenth Amendment 1. Due Process a. Iowa Due Process – Iowa Const. art. I, § 9 – Retroactive Application of New Rule of Law Nguyen v. State, _____ N.W.2d _____ (Iowa 2016) The application by the Iowa Supreme Court of the felony merger doctrine in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), was a new rule rather than clarification of an existing rule and was not a substantive watershed rule of criminal procedure implicating fundamental fairness and accuracy of the criminal proceeding, so under the due process provision of Iowa Const. art I, §9 is not required to be applied retroactively. – The Court previously determined in Goosman v. State, 764 N.W.2d 539 (Iowa 2009) that retroactivity was not required under the federal due process clause. The Court saw no reason to depart under the Iowa Constitution from the federal interpretation of the parallel provision. b. Void for Vagueness – Armed Career Criminal Act – Residual Clause Johnson v. United States, _____ U.S. _____, 135 S.Ct. 2551, _____ L.Ed.2d _____ (2015) The “residual clause” of 18 U.S.C. § 924(e)(2)(B), which expands the definition of a “violent felony (qualifying a defendant convicted of a federal firearms offense for a 15-year minimum prison sentence as an Armed Career Criminal if the defendant had been convicted of three such prior violent felonies or drug felonies) to include any felony that “includes conduct that presents a serious potential risk of physical injury to another,” is constitutionally vague. –The Supreme Court has tackled four cases in which it has attempted to divine an analysis that would resolve the question of which prior offenses constitute violent felonies and which do not. Justice Scalia has suggested in past opinions that such an analysis is too elusive. Justice Scalia wrote the Johnson majority. The Career Offender enhancement under the United States Sentencing Guidelines also uses a similar definition. It is likely that Johnson will apply in that context as well. Whether Johnson will have retroactive effect to defendants sentenced under either provision remains to be seen. -17c. Enhancement of Sentence w/Prior Uncounseled Misdemeanor Convictions State v. Young, 863 N.W.2d 249 (Iowa 2015) Because a defendant is entitled to counsel under article I, Section 10 of the Iowa Constitution in a prosecution for a simple misdemeanor, where the charge carries the possibility of incarceration, even if the defendant does not receive a sentence of incarceration, an uncounseled conviction of a simple misdemeanor may not, pursuant to the due process provision of article I, section 9 of the Iowa Constitution, be used to enhance a sentence for a subsequent criminal conviction unless there is evidence of a valid waiver. 2. Equal Protection – Iowa Const. art. I, § 6 . Nguyen v. State, _____ N.W.2d _____ (Iowa 2016) Defendants convicted before the Iowa Supreme Court decision in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006) are not similarly situated to those convicted after the Heemstra decision, so the Equal Protection Clause of Iowa Constitution art. I, § 6 is not violated where the Heemstra felony merger rule is applied only prospectively, and not retroactively. II. Substantive Offenses A. Burglary – Sufficiency – Occupied Structure – Abandoned Building State v. Rooney, 862 N.W.2d 367 (Iowa 2015) An abandoned house slated for demolition within days of the defendant’s entry into it is not “adapted for overnight accommodation of persons” or “used for storage or safekeeping of anything of value,” and thus is not an occupied structure as an element of burglary. B. Controlled Substances 1. Federal – Analogue Controlled Substances – Scienter McFadden v. United States, _____ U.S. _____, 135 S.Ct. 2298, _____ L.Ed.2d _____ (2015) In a prosecution for distributing controlled substance analogues under 21 U.S.C. § 813, 802(32)(A) and 841(a)(1), the jury must be instructed that the defendant knew either (1) that the substance is a controlled substance, without necessarily being aware of its nature, or (2) the nature of the substance without necessarily being aware that it is a controlled substance. – Chief Justice Roberts argued in his lone concurrence that a conviction should be obtained only when the defendant knows he is distributing a controlled substance, regardless of the fact that he knows its nature: A pop quiz for any reader who doubts the point: Two drugs – dextromethorphan and hydrocone – are both used as cough suppressants. They are also both used a recreational drugs. Which one is a controlled substance? Justice Thomas remanded the case to determine whether error was harmless. -182. Sufficiency – Constructive Possession State v. Reed, _____ N.W.2d _____ (Iowa 2016) There is sufficient evidence to establish that defendant was in constructive possession of controlled substances found at a residence where the defendant would stay at the residence in the room where drugs were found, where law enforcement observed him spending several hours at a time at the residence, including the several hours prior to the search, where defendant’s cell phone camera contained a photo of the location where drugs were found, where defendant’s cell phone activity was consistent with that of a drug trafficker, where the defendant carried a sizable amount of cash when arrested, and where the defendant offered to assist law enforcement when he was arrested. C. Financial Crimes – Fraudulent Practices 1. Aggregation of Losses State v. Hoyman, 863 N.W.2d 1 (Iowa 2015) In a trial for fraudulent practices for an offense occurring prior to 2014, in order to aggregate separate instances into a single offense under Iowa Code § 714.14 it must be shown that the defendant actually obtained money during each of the offenses. – In 2014, the legislature replaced valuation based upon money, property or services “obtained” with money, property or services “involved in” each of the acts. 2. Instructions – Intent to Deceive State v. Hoyman, 863 N.W.2d 1 (Iowa 2015) While the statutory definition of fraudulent practices in Iowa Code § 714.8(4) does not explicitly include te intent to deceive, an element of intent to deceive is implicit in the requirement that the defendant commit the act “knowing the same to be false.” – The State cited numerous decisions in which other statutes were found not to require the intent to commit a fraud when that element was not expressly in the statute. Intent to deceive is different from intent to commit a fraud, Justice Mansfield explains. D. Firearms Offenses 1. Possession of a Firearm by a Felon – Ability to Dispose of a Firearm Following a Felony Conviction Henderson v. United States, _____ U.S. _____, 135 S.Ct. 1780, _____ L.Ed.2d_____ (2015) Without assisting a violation of 18 U.S.C. § 922(g), a court sentencing a defendant on a felony has the authority to direct the government, at the defendant’s request, to turn firearms that until then were legally in the defendant’s possession over to a third-party, provided the defendant would have no opportunity to possess the firearms in the future or to control where they would go after that. – For example, the defendant in Henderson wished to have the guns turned over to a registered firearms dealer, so that the guns could be sold in the public market and the proceeds would go to the -19defendant. The holding is not, however, limited to these circumstances. The defendant could ask that the guns be turned over to a third party with whom he or she is acquainted, provided there are assurances that they would not, in the future, revert to the possession of the defendant. Whether or not to approve the transfer of the firearms to any person, of course, is within the discretion of the court. 2. Dangerous Weapons – Stun Gun State v. Howse, _____ N.W.2d _____ (Iowa 2016) A stun gun , whether functional or not, is a “portable device or weapon directing an electric current, impulse, wave or beam that produces a high-voltage pulse designed to immobilize a person” so, under Iowa Code § 702.7, it is per se a dangerous weapon. – Section 702.7 delineates three ways an object can become a dangerous weapon, It may be an “instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in the manner for which it was designed.” It can be any object “actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being.” Or it can be an item specifically listed in the final sentence of the section as a per se dangerous weapon. In State v. Geier, 484 N.W.2d 167 (Iowa 1992), the Court already found that the stun gun in that case qualified under the first sentence. In 2008, after Geier, the legislature added the “portable device or weapon” language, making the stun gun a per se dangerous weapon. 3. Sufficiency – Constructive Possession State v. Reed, _____ N.W. 2d _____ (Iowa 2016) Sufficient evidence did not support defendant’s conviction of constructive possession of a firearm where fingerprints were found on the firearm that did not match the defendant or his girlfriend, where the defendant’s cell phone camera contained photographs of weapons, but not the weapon for which he is charged, and where the weapon was found in a different room from that in which the defendant was staying. -20E. Homicide – Murder – Alternative Means of Commission. 1. Direct Killing – Causation State v. Tyler, 873 N.W.2d 741(Iowa 2016) Where defendant struck his victim in the back of the head and knocked him down, at which time several other individuals kicked and stomped the victim until he died, the jury could find that but for the defendant’s actions the victim would not have been killed, and there is sufficient evidence that the defendant’s actions are the factual cause of the victim’s death. 2. Aiding and Abetting State v. Tyler, 873 N.W.2d 741(Iowa 2016) Evidence is sufficient to submit to the jury a theory of aiding and abetting a murder where evidence supports a finding that the defendant assaulted the victim knowing that others subsequently would resume the assault and that the defendant acted with malice aforethought. 3. Joint Criminal Conduct State v. Tyler, 873 N.W.2d 741(Iowa 2016) Prosecution of defendant for murder under a theory of joint criminal conduct requires evidence that the first crime (which led to the second crime) was a joint crime, and where the theory of prosecution was that the first assault by the defendant was a joint crime with a second assault by others that resulted in death, it must be established that the first assault was a result of a plan. F. Public Intoxication – Public Place State v. Paye, 865 N.W.2d 1 (Iowa 2015) Unless a person in possession of the property invites the general public to congregate there, he front steps of a private residence are not a “public place” in which a person could commit public intoxication under Iowa Code § 123.46(2). – The Court found in State v. Booth, 670 N.W.2d 209 (Iowa 2013) that the front steps of an apartment house are a public place for this purpose, but left for another day the question of whether the same conclusion would apply to a private residence. It does not. G. Sexual Offenses – Lascivious Acts – Sufficiency – Skin-to-Skin Contact State v. Alvarado, _____ N.W.2d _____ (Iowa 2016) A conviction of lascivious acts under Iowa Code § 709.8(1) does not require skin to skin contact, and may be accomplished by the touching of a prescribed body part through clothing. – Part of Mr. Alvarado/s argument is that, while § 708.8(1) does not state that lascivious acts may be accomplished through clothing, Iowa Code § 709.12 specifically mentions touching through clothing as a means to commit indecent contact. The two sections overlap, because indecent contact cases may now be punished as lascivious acts. This is not entirely true, Justice Hecht responds. But even if it were true, statutes may -21permissibly overlap in their coverage. H. Threats – Scienter Elonis v. United States, _____ U.S. _____, 135 S.Ct. 2001, _____ L.Ed.2d_____ (2015) While 18 U.S.C. § 875(c), making it illegal to communicate a threat against another person, does not contain an explicit element of scienter, a criminal statute must contain some element of mens rea that separates a criminal act from a non-criminal one, so a jury instructions that requires the jury to find merely that a reasonable person would interpret the communication as a threat is not sufficient. – Mr. Elonis was an aspiring rap star who focused his art upon things he would like to see happen to his estranged wife and his co-workers. He then published his work on Facebook. What I’m doing, he argued, is no different from what Eminem does, and it should not be punished criminally. In his seven-justice majority opinion, Chief Justice Roberts did not determine whether the jury should be required to find that Mr. Elonis had the specific intent to convey a threat. But the negligence standard applied below wasn’t sufficient. In a partial concurrence, Justice Alito took the Chief to task for his lack of specificity. In his opinion, the Court should have applied a recklessness standard. Justice Thomas took it one step farther and took the position that general intent was sufficient. III. Pre-trial Issues A. Iowa Code § 804.20 1. Right to Call Attorney or Family Member State v. Lyon, 862 N.W.2d 391 (Iowa 2015) While, under some circumstances, law enforcement has an obligation under Iowa Code § 804.20 to inform an arrestee who he or she is entitled to call, law enforcement is not required to inform the person of the purpose of the phone call, specifically that the arrestee has a right to speak to an attorney or family member to determine whether to submit to chemical testing. 2. Right to Meet Privately with Counsel – Necessity of Request State v. Lamoreux, _____ N.W.2d ______ (Iowa 2016) The defendant’s right to consult privately with counsel under Iowa Code § 804.20 applies when requested by counsel, and law enforcement is not required to provide a private, confidential meeting place absent a request. – Lamoreux’s attorney visited him in jail at 1:23 a.m.. Counsel would have been aware from prior experience that the booking room in which he met the defendant was equipped with audio and video recording equipment. The state made no attempt to admit video or audio recordings of conversations -22between the attorney and the client. Mr. Lamoreux moved to suppress, on this basis, his chermical test administered at the jail, to which he consented after meeting with counsel. The Supreme Court affirmed the denial of his motion. According to Justice Mansfield, “we are reluctant to interpret section 804.20 as granting relief from a set of circumstances that were clearly accepted at the time. Furthermore, it is reasonable to expect an attorney who sees a surveillance system in operation to ask that the surveillance be turned off or that a different room be provided. Normally, in our legal system, attorneys have to ask for things and are good at doing so; that is why clients are willing to pay them.” State v. Lamoreux, _____ N.W.2d at _____. B. Limitations – Kidnaping State v. Walden, 870 N.W.2d 842 (Iowa 2015) Even where a charge of kidnaping is based upon a sexual abuse, kidnaping is not among the statutorilyenumerated offenses in Iowa Code § 802.2 for which the limitation period is ten years, so the appropriate limitation period under Iowa Code § 802.3 is three years. – As Professor Bonfield drilled into my skull 33 years ago, “expressio unius est exclusio alterius.” Occasionally, the court employs the rule of statutory construction that avoids absurd results. But the statute says what it says. C. Speedy Indictment – Different Offenses State v. Penn-Kennedy, 862 N.W.2d 384 (Iowa 2015) Where the defendant is arrested for public intoxication, and trial information is filed before the 45-day speedy indictment deadline, the speedy indictment provision of Iowa Rule of Criminal Procedure 2.33(2)(a) is not violated by filing of the additional charge of operating while intoxicated, arising from the same incident, past the 45-day deadline but before the limitation period had run. – Public intoxication is not a lesser offense of OWI, so there is no argument that they are the same offense for speedy trial purposes. D. Merger of Charges – Attempted Homicide and Voluntary Manslaugher State v. Ceretti, 871 N.W.2d 88 (Iowa 2015) While there is no matching of elements between Attempted Murder under Iowa Code § 707.11(1) and Voluntary Manslaughter under Iowa Code § 707.4(1), Iowa R. Crim.P. 2.22(3) requires that attempted crimes merge with completed crimes, and conviction of voluntary manslaughter merges into a conviction of attempted murder in a case involving the same attack on the same victim. – Ceretti places a new twist on what is referred to in Iowa in cases such as State v. Fix, 830 N.W.2d 744( Iowa App. 2013) and State v. Wissing, 528 N.W.2d 561 (Iowa 1995) as the “one-homicide rule.” Here the attempt -23is actually the greater offense. Voluntary Manslaughter is considered a “diminished form of murder,” so the rule was found to apply. E Provision of Funds for Investigative Services – Ex Parte Hearing State v. Dahl, _____ N.W.2d _____ (Iowa 2016) Where defendant requests funds for appointment of a private investigator, and a question is raised as to whether investigative services are necessary to prepare the defense, and the court determines that the application may have merit but does not contain adequate information to make a ruling, the court should conduct an ex parte hearing to allow defense counsel to set out the basis for the request in such a way as to not inform the state as to defense strategy or work product. – Following the principle of constitutional avoidance, Justice Wiggins based his decision on Iowa Code § 815.7(5) and the Supreme Court’s supervisory powers and not upon the Sixth Amendment. Defendants are not entitled to use § 815.7(5) to conduct a fishing expedition. They must be able to demonstrate that there is an articulable reason for the request. But if the question is a close one, the defendant should be permitted to make the argument outside the presence of the prosecutor. F. Motions and Rulings – Removal of Prosecutor – District Court Discretion State v. Iowa District Court for Dubuque County, 870 N.W.2d 849 (Iowa 2015) Where, in a private jailhouse conversation with her boyfriend, a defendant characterizes the prosecutor in her case (and the boyfriend’s) in profane terms and threatens to shoot the prosecutor in the face, and the prosecutor moves subsequently to revoke the defendant’s unsecured appearance bond, the district court abuses its discretion in removing the prosecutor, and all attorneys in her office, from handling the case where the district court reasons merely that continued participation by the prosecutor would “be ‘inappropriate’ under an ‘unbiased prosecution’ standard” and does not indicate whether the court believes there is an actual conflict or serious potential for conflict, and where there is no determination that the threats would directly impact the prosecutor or any attorney in her office. – Justice Zager recognizes that judges, prosecutors and, yes, even defense lawyers are threatened and spoken badly of from time to time by defendants, and this in general is not a ground for removal. A prosecutor may not participate if he or she is involved personally in the litigation or is the actual victim of a crime by the defendant. -24- IV. Trial Issues A. Evidence 1. Relevance – Victim’s Propensity for Violence State v. Webster, 865 N.W.2d 223 (Iowa 2015) Although, in a prosecution for murder in which the defendant claims he killed the victim because he believed the victim was assaulting his girlfriend, evidence that the defendant once punched his pregnant wife in the belly has some relevance, the district court does not abuse its discretion in excluding the evidence where there was sufficient evidence of the victim’s violence towards women through other witnesses, and the propensity evidence would be unduly prejudicial. – In reaching this holding, the Court relied upon the first and fourth prongs of the four-pronged test of State v. Martin, 704 N.W.2d 665 (Iowa 2005): (1) the need for the proffered evidence “in view of the issues and other available evidence,” (2) whether there is clear proof it occurred, (3) the “strength or weakness of the prior-acts evidence in supporting the issue sought to be prove[d],” and (4) the degree to which the evidence would improperly influence the jury. The district court also precluded the defendant from offering evidence of the victim’s “prison mentality.” There was sufficient evidence of this already in the record. 2. Iowa R.Evid. 5.404(b) (Other Bad Acts – Identity) a. Prior Assaults by Defendant State v. Tyler, 873 N.W.2d 741(Iowa 2016) Where defendant is charged with murder by striking a blow to the victim that knocks the victim down, allowing other friends of the defendant to kick and stomp the victim causing the victim’s death, testimony that a witness observed the defendant engaged in fights involving the same individuals in the past is relevant to prove the defendant’s knowledge and intent. b. Flight (1) Analysis under Rule 404(b) State v. Wilson, _____ N.W.2d _____ (Iowa 2016) The admissibility of evidence of flight does not go directly to an element of a charged offense, so it is considered under Iowa R. Evid. 5.404(b). -25(2) Admissibility of Evidence State v. Wilson, _____ N.W.2d _____ (Iowa 2016) Where a number of significant events related to the investigation of crimes for which the defendant was charged occurred shortly before the defendant fled from law enforcement, a jury could infer that the defendant’s flight indicated consciousness of guilt, and evidence of flight is admissible under Iowa R.Evid. 5404(b). State v. Wilson, _____ N.W.2d _____ (Iowa 2016) In the absence of evidence of significant events in the investigation leading to police coming to the defendant’s residence to arrest the defendant, evidence that the defendant hid in a hole in the basement when police arrived is not admissible evidence of flight, because there is no support for an inference that hiding in the basement was motivated by consciousness of guilt of the offense being investigated. – Justice Wiggins’ opinion in Wilson is a primer on the admissibility of flight evidence. On a case-by-case basis, the court looks at the circumstances under which the defendant sought to avoid law enforcement. The facts must support a “chain of inferences” linking the defendant’s evasive actions to actual guilt. Justice Wiggins cites, though does not adopt explicitly a chain of four inferences set out in 2 McCormick on Evidence § 263, at 314 (7th ed. 2013) and followed by many federal and state courts: For evidence the defendant sought to avoid apprehension to be probative of his or her actual guilt with respect to the crime charged, the evidence must support a chain of inferences (1) from the defendant’s behavior to avoidance of apprehension, (2) from avoidance of apprehension to consciousness of guilt, (3) from consciousness of guilt to consciousness of guilt concerning the crime charged, and (4) from consciousness of gilt concerning the crime charged to actual guilt of the crime charged. State v. Wilson, _____ N.W.2d at _____. The test in Iowa appears to boil down to being that, “before a court may admit evidence of prior acts of flight or avoidance, the court must assure itself there is adequate evidence to reasonably support the inferential chain between each act sought to be admitted and actual guilt for the crime charged. State v. Wilson, _____ N.W.2d at _____. -263. Expert Testimony – Iowa R. Evid. 5.703 a. Opinions Based Upon Non-Scientific Facts State v. Tyler, 867 N.W.2d 136 (Iowa 2015) Where, in a prosecution for murder in the first degree, the State Medical Examiner admits after autopsy that he is unable to determine whether the cause of death of the defendant’s newborn infant was homicide, or whether the child was stillborn, the testimony of the medical examiner at trial that the cause of death was drowning and that the manner of death was homicide does not assist the jury, and thus is not proper expert testimony when it was based exclusively upon the admissions of the defendant that the child was crying and breathing after it was born and that she drowned the baby in the bathtub. – Justice Zager stresses that Tyler does not establish a bright-line rule that experts may not rely at least partially upon the statements of witnesses, etc.. The conclusions, however, must be based upon the witness’ unique expertise, and not upon conclusions the jury would be able to draw for itself from the other evidence. Tyler is another magnificent decision released on what essentially was the final day of the 2014-15 term of the Court. Assistant Appellate Defender Maria Ruhtenberg advanced at least four viable, significant issues. In what could be his most scholarly opinion to date, Justice Zager rules in favor of Ms. Tyler on two issues, and in favor of the government on the remaining two. The decision spawned three three-justice partial dissents in which every other justice of the Court joined at least once. The majority opinion was left intact, however, because none of the dissents drew more than three justices away from the majority on any particular issue. Employing something of a scattergun approach, Justice Waterman dissented on the Rule 5.702 issue, arguing that to restrict experts in this manner flies in the face of Iowa”s liberal acceptance of expert testimony. In State v. Gaskins, decided the same day, Justice Appel responded meticulously to each of Justice Waterman’s many volleys. Unfortunately, no such response appeared in any of the opinions filed in this case. -27b. Expert Testimony Vouching for the Credibility of Complaining Witnesses State v. Tyler, 867 N.W.2d 136 (Iowa 2015) In a prosecution for murder in the first degree, where the defendant initially denies that her infant child was born alive, then admits subsequently that the child was breathing and crying after it was born and that she drowned the child in the bathtub, the testimony of the state medical examiner that the cause of the child’s death was drowning and the manner of death was homicide is an improper expert comment upon the credibility of the defendant’s inculpatory statement, where the medical examiner’s conclusion was based virtually exclusively upon the admissions and where the central issue of fact were the credibility of the defendant’s various admissions. 4. Hearsay – Exceptions – Iowa R. Evid. 5.803(4) – Statements for the Purpose of Medical Diagnosis or Treatment State v. Smith, _____ N.W.2d _____ (Iowa 2016) While, under some circumstances, the identity of an assailant in a domestic abuse prosecution may be necessary for proper diagnosis or treatment of a victim, absent a particular showing of necessity, out of court statements by the victim identifying her assailant are not categorically admitted under the Iowa R.Evid. 5.804(4) hearsay exception for statements made for the purpose of medical diagnosis or treatment. – The State, and Justice Waterman in his three-Justice dissent, argued that statements regarding identity should categorically be admitted in domestic abuse prosecutions, as they are in child abuse cases. Justice Waterman suggested that, on remand, the victim’s statements may be admitted as excited utterances. B. Motions – Post-Trial Motions – Motion to Dismiss – Juror Bias State v. Webster, 865 N.W.2d 223 (Iowa 2015) The district court does not abuse its discretion in denying a motion for new trial on the ground of juror bias, where the juror (ultimately) reveals her friendship with the family of the victim, where the district court finds as credible the juror’s protestation that she can be impartial and where the juror’s “liking” a Facebook comment by the victim’s stepmother asking for strength appears to be nothing more than an expression of empathy. – This decision is very fact-specific and, in the current judicial climate in Iowa, it is surprising that the Supreme Court did not reverse. Justice Hecht authored a partial dissent in which he also expressed surprise. In a prosecution for murder in the first degree, the juror had told a number of people prior to trial that she would not be chosen to serve because of her relation to the family. Yet she sat silent during voir dire because she was not specifically asked if any panelist had a daughter who was a friend of the victim’s sister. After the verdict of murder in the second degree, she apologized to the victim’s stepmother for not coming back with first-degree murder. -28All of the opinions in Webster provide helpful analysis in cases involving juror bias and misconduct. And all of the opinions stress that district courts should be giving strong admonitions to jurors about accessing the social media during trial. C. Jury Instructions -- Contradictory and Confusing Instructions State v. Hoyman, 863 N.W.2d 1 (Iowa 2015) Where the jury instructions, taken as a whole, are contradictory or confusing, a new trial is required. V. Sentencing A Particular Sentences – Enhancements for Prior Convictions – Uncounseled Simple Misdemeanors State v. Young, 863 N.W.2d 249 (Iowa 2015) Because a defendant is entitled to counsel under article I, Section 10 of the Iowa Constitution in a prosecution for a simple misdemeanor where the charge carries the possibility of incarceration, even if the defendant does not receive a sentence of incarceration an uncounseled conviction of a simple misdemeanor may not, pursuant to the due process provision of article I, section 9 of the Iowa Constitution, be used to enhance a sentence for a subsequent criminal conviction unless there is evidence of a valid waiver. B. Sentencing Procedures 1. Victim Impact Statements State v. Lopez, 872 N.W.2d 159 (Iowa 2015) Because the child endangerment victim’s father is an immediate family member of a victim under eighteen years of age at the time of the offense, Iowa Code § 915.10(3), and because a guardian ad litem is empowered to speak for a child unable to make an oral or written statement for him- or herself, Iowa Code § 915.21(1)(e), both are considered victims, and both are able to submit victim impact statements at sentencing. 2. Resentencing after Sentence Vacated – Authorized Sentences. State v. Yvette Marie Louisell, 865 N.W.2d 590 (Iowa 2015) In resentencing a defendant previously convicted of murder in the first degree and sentenced to a mandatory sentence of life without parole for an offense committed before the defendant was 18, following the holdings in Miller v. Alabama, 132 S.Ct. 2455 (2012) and its progeny that mandatory sentences of life without the possibility of parole violate the Eighth Amendment in cases in which the defendant was under 18 years of age at the time of the offense, the district court does not have the authority under Iowa law to substitute a sentence of twenty-years and time served, since the Iowa Code does not provide for such a sentence, nor was there authority to impose an alternative sentence of life with the possibility of parole after twenty-five years. -29- VI. Appeal and Collateral Review A. Direct Appeal 1. Direct Appeal – Preservation of Error State v. Webster, 865 N.W.2d 223 (Iowa 2015) While arguments of juror misconduct and juror bias are somewhat separate issues, defendant’s claim of juror bias is sufficiently raised despite counsel’s reference to juror misconduct where counsel did argue that a juror was biased. State v. Webster, 865 N.W.2d 223 (Iowa 2015) The district court’s ruling on a motion in limine generally is not sufficient to preserve error for review, and to do so the defendant must offer the evidence at trial that the district court indicated in its limine ruling it would not allow. 2. Standard of Review a. Constitutional Issues – Probable Cause for Search Warrant State v. McNeal, 867 N.W.2d 91 (Iowa 2015) While constitutional issues, including Fourth Amendment issues, are reviewed de novo, in reviewing a district court ruling that a search warrant was supported by probable cause the appellate court does not make an independent determination of probable cause, but instead will “merely decide whether the issuing judge had a substantial basis for concluding probable cause existed.” – This standard flows from the strong preference for warranted searches, and the analysis comes from State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). b. Removal of Prosecutor Based Upon Conflict of Interest State v. Iowa District Court for Dubuque County, 870 N.W.2d 849 (Iowa 2015) The determination of whether a conflict of interest exists that warrants removal of a prosecutor from a case is a mixed question of fact and law. – Justice Zager follows State v. McKinley, 860 N.W.2d 874 (Iowa 2015) in finding this is the appropriate standard: “Whether the facts show an actual conflict of interest or a serious potential for conflict is a matter of trial court discretion. . .” [State v. McKinley, 860 N.W. 2d at 874] (quoting Pippins v. State, 661 N.W.2d 661 N.W.2d 544, 548 (Iowa 2003)). “We review these conflict-of-interest determinations for an abuse of discretion.” Id.; State v. Smith, 761 N.W.2d 63, 68 (Iowa 2003). “‘An abuse of discretion occurs when the district court exercises its discretion “on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”’” State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015)(quoting State v. Rodriguez, 636 N.W.2d 234, 239 (Iowa 2001)). “‘A ground or reason is untenable when it is not supported by substantial -30evidence or when it is based on an erroneous application of the law.’” Rodriguez, 636 N.W.2d at 239 (quoting Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2001)).” State v. Iowa District Court for Dubuque County, 870 N.W.2d at 853. c. Court’s Supervisory Powers State v. Dahl, _____ N.W.2d _____ (Iowa 2016) While questions of statutory interpretation are reviewed for errors at law, the Supreme Court possesses the authority under its art. V, § 4 supervisory and administrative control over the inferior courts to implement protocols to protect the rights of litigants, including the provision of investigative services to indigent defendants. 3. Appellate Remedies a. Conviction on a General Verdict Where Alternative Means of Committing Offense is Invalid State v. Tyler, 873 N.W.2d 741(Iowa 2016) Where, in a prosecution for murder, the jury is instructed on theories of direct killing, aiding and abetting, and joint criminal conduct and convicts the defendant by general verdict, and where the theory of aiding and abetting is not supported by the evidence, the remedy is a new trial for the defendant, because it is not possible to ascertain whether the jury convicted the defendant of the unsupported alternative. – The federal approach, articulated in Griffin v. United States, 502 U.S. 46 (1991) is different. While the jury is not able to divine legally sufficient alternatives from legally insufficient ones, the jury is presumed to be able to reject factually unsupported alternatives. In cases such as Tyler and State v. Hogrefe, 557 N.W.2d 87 (Iowa 1996), Iowa joins other jurisdictions that do not engage in this presumption. See State v. Jones, 29 P.3d 351 (Hawaii 2001); Commonwealth v. Plunkett, 664 N.E.2d 833 (Mass. 1996); State v. Ortega-Martinez, 881 P.2d 231 (Wash. 1994). b. Vacation of Beneficial Plea Agreement State v. Ceretti, 871 N.W.2d 88 (Iowa 2015) While in many cases the remedy for an appellate reversal of a beneficial sentence is remand for resentencing, where the defendant and the state have entered into a plea agreement that is beneficial to the defendant and the defendant successfully appeals a portion of the sentence, the remedy may be to vacate the plea and to place the parties in the position they were in prior to entering into the plea agreement. – Joseph Ceretti was charged with murder in the first degree. He entered an Alford plea pursuant to an agreement under which he would plead to attempted murder (a class B felony) -31and willful injury and voluntary manslaughter (both class C felonies), and receive consecutive sentences totaling 45 years. The district court imposed the agreed-upon sentence. On appeal, Mr. Ceretti argued successfully that the conviction for voluntary manslaughter and the conviction for attempted murder should have merged at sentencing. On the theory that a defendant should not be able to bargain for a favorable deal and then take an appeal to obtain an even better deal, Justice Hecht vacated the plea. The parties will now have to go to trial or negotiate a different plea. In the end, Mr. Ceretti may have won the battle, but he lost the war. c. Resentencing v. Amending Sentencing Order State v. Pearson, _____ N.W.2d _____ (Iowa 2016) Where the defendant pleads guilty to sexual abuse in the third degree under Iowa Code § 709.4(2)(c)(4), a non-forcible felony, but the district court in its sentencing order indicates that the defendant is guilty of sexual abuse in the third degree under Iowa Code § 709.4(2)(b), a forcible felony, and the court of appeals vacates the judgement and sentence and remands the case to the district court with instructions that the district court “amend the judgment and sentence to reflect the defendant’s intent in entering the plea,” the district court errs in conducting a resentencing proceeding on remand and imposing a sentence twice as severe as that imposed in the original sentence. – Justice Mansfield makes the valid point that Mr. Pearson appears to have waived objection to resentencing rather than simply amending the sentencing order to substitute the correct Code section. On remand, the government argued for the more severe sentence, which was ultimately imposed, while Mr. Pearson argued for probation. But Chief Justice Cady determines that Mr. Pearson himself, not his attorney, commented twice during the resentencing proceeding that he understood that all that was going to happen was that his sentence would be amended. Because the district court originally pronounced sentence orally to charges to which Mr. Pearson did not plead guilty, and for which there was no factual basis, the case could not be remanded for a nunc pro tunc order. -32B. State Habeas Corpus – Iowa Code § 663 – “In custody” State v. Hernandez Garcia, 864 N.W.2d 122 (Iowa 2015) A defendant whose sentence has been discharged completely may not challenge his conviction in an Iowa Code § 663 habeas corpus petition by arguing that federal immigration consequences render him “in custody.” – A lot of maybes flow from Justice Zager’s opinion in Hernandez. Mr. Hernandez challenges a deferred judgment for which he successfully completed probation. Since 1970, habeas is unavailable to persons who have been “convicted of, or sentenced for, a public offense,” as postconviction relief under what is now Iowa Code § 822 is now available to challenge criminal convictions. But a defendant who receives a deferred judgment is not “convicted of” an offense, so postconviction is not a proper remedy. Can that person use habeas? Maybe. -33In both federal and state courts, habeas corpus is available to some defendants who are not actually imprisoned, but are constructively in custody by means of parole, supervised release, etc. The courts are split on whether constructive custody might extend to persons whose sentences are completely discharged, but remain subject to some collateral consequence. The majority say no. Can a person in Iowa use collateral consequences to establish custody in habeas cases? Maybe. But not in this case. The purpose of habeas is to require the defendant to produce the defendant. Under any construction, the State of Iowa did not have Mr. Hernandez to produce. All of the projected consequences were federal. Justice Zager also points out that Mr. Hernandez’ petition could have been dismissed simply for failure to comply with the procedural requirements of Iowa Code § 663.1. It did not indicate by whom he was being held. He did not attach a copy of the “legal process currently causing the alleged unlawful restrain, or give any reason why it is not attached.” And he did not provide any documentation supporting his belief that he was subject to detainer or to immigration proceedings for removal. C. State Postconviction Relief – Limitation Nguyen v. State, _____ N.W.2d _____ (Iowa 2016) Where, in the pro se brief accompanying a postconviction relief petition, the defendant claims that the application of the felony murder rule by the Supreme Court in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006) should be applied retroactively to him, and where the last date postconviction counsel could have made the retroactivity argument was the April 5, 2013 deadline for filing an Iowa R.App.P. 6.1205 petition for rehearing, defendant’s subsequent filing of a claim of ineffective assistance of counsel fell within the three-year limitation period of Iowa Code § 822.3. D. Federal Habeas Corpus – Extent of Review 1. Review of State Factual Determination Brumfield v. Cain, _____ U.S. _____, 135 S.Ct. 2269, _____ L.Ed.2d _____ (2015) In denying defendant a hearing on whether the Eighth Amendment prohibits his execution based upon his intellectual disability, as set out in Atkins v. Virgina, 536 U.S. 304 (2002), the state court based its decision “on an unreasonable determination of the facts in light of the evidence presented” where accounting for the margin of error of the defendant’s IQ of 75 placed the defendant within the recognized range of intellectual disability, and where, contrary to state court findings, the evidence was sufficient that the defendant met the criteria for adaptive impairment. – Justice Thomas may have been correct in his dissent that, at least in view of other decisions involving federal review of state convictions, the majority did not accord the state decision the level -34of deference required under the Antiterrorism and Effective Death Penalty Act. But then Justice Thomas launches into what almost arises to the level of a bizarre memorial service to Mr. Brumfield’s victim, an off-duty police officer shot during a robbery of a supermarket employee. The victim’s son, Warrick Dunn, went on to play football in the NFL, to sponsor a variety of charities and valuable community service programs, and to write a book about, among things, the loss of his mother. Justice Thomas holds Dunn’s achievements up against Brumfield’s crimes, and essentially makes the argument that the victim’s son has done so much good while the defendant has littered the criminal justice system with claims that he is not responsible for his offense. While joining in the dissent, even Justice Alito could not put his name on that one. 2. Prejudice Davis v. Ayala, _____ U.S. _____, 135 S.Ct. 2187, _____ L.Ed.2d_____ (2015) The exclusion of defense counsel during a Bruton hearing to determine whether the prosecutor’s use of peremptory challenges to strike every African-American and Hispanic from the jury was harmless error, where the district court made specific findings supporting the exclusion of each juror on raceneutral grounds. – At the outset of her four-Justice dissent, Justice Sotomayor notes that there is no dispute between her and Justice Alito, author of the majority opinion, concerning the appropriate standard of review. This does not appear to be accurate. At the bottom line, Justice Alito applies to harmless error review the AEDPA standard that habeas relief is not available “unless the harmlessness determination itself was unreasonable.” Davis v. Ayala, 135 S.Ct. at 2199 (relying on Fry v. Pilar, 551 U.S. 112, 119 (2007). Justice Sotomayor on the other hand emphasizes that, if the circumstances are in equipoise, and the court is in “grave doubt” as to whether error is harmless, the court must find that the error had a substantial injurious effect or influence on the verdict. Davis v. Ayala, 135 S. Ct. at 2211 (Sotomayor, J. dissenting). Justice Sotomayor faults Justice Alito for analyzing the prejudice resulting from the seating of the jurors in question, where the real issue was the exclusion of defense counsel during presentation of the prosecutor’s purported race-neutral grounds for exclusion. The prosecutor claimed that an ex parte hearing was necessary to preclude the defense from becoming aware of its trial strategy. “Grave -35doubt” existed as to whether the exclusion affected the outcome of proceedings when Mr. Ayala had no advocate present to test the state’s claims. This was compounded by the fact that, by the time Mr. Ayala’s case came of for review, the jury questionnaires were lost. The state was supporting its strikes on the basis of answers on jury questionnaires. Its rationalizations could not be tested because the questionnaires no longer existed. While concurring fully in the majority opinion, Justice Kennedy expressed eloquent concern over the fact that Mr. Ayala has now been in administrative segregation for 25 years. He cited a number of sources, including Charles Dickens’ Tale of Two Cities, illustrating the devastating effect of confinement on the human psyche. On the other end of the philosophical spectrum, Justice Thomas authored a one-paragraph concurrence arguing “that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 35 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had to enjoy this Earth.” VII. Miscellaneous Issues A. Suit under 42 U.S.C. § 1983 – Qualified Immunity Mullenix v. Luna, _____ U.S. _____, 138 S.Ct. 305, _____ L.Ed.2d _____ (2015) Law enforcement officer who shot at a fleeing individual’s vehicle, attempting to stop it but causing the person’s death, retains qualified immunity from suit under 42 U.S.C. § 1983 as a matter of law, and is entitled to summary judgment, where there is no showing that the officer would understand from prevailing law that his specific actions violated a constitutional right of the person. – It is not sufficient to rely upon the generalized claim that the officer “violated the clearly established rule that a police may not ‘use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.’” Mullenix v. Luna , ______ U.S. at _______. The inquiry involves the specific circumstances and the officer’s specific actions. -36B. Remedies for Wrongfully Imprisoned Person – Iowa Code § 663A.1(1). State v. Nicoletto, 862 N.W.2d 621 (Iowa 2015) Substantial evidence supported the district court’s finding that several hours spent by a defendant in the county jail after sentencing and before posting appeal bond is not “imprisonment,” so the defendant was not entitled to compensation under Iowa Code § 663A.1(1) for being a wrongfully imprisoned person. – Would you want this guy to coach YOUR daughter? The freshman basketball coach has an adult relationship with a varsity player, a junior herself, that apparently goes on for a year. He gets busted – on several levels – and is charged with sexual exploitation by a school employee. His criminal conviction is reversed, because the statute as written at the time did not encompass coaches. My guess is that the whole thing would still be a little embarrassing for the freshman coach. He’s probably not the most popular guy in town, I would imagine. I would imagine that parents of the players at that girl’s school aren’t thinking, “Well, the Supreme Court held that the coach’s adult relationship with that high school junior didn’t violate the plain language of the statute, so it’s all good.” But THIS guy doesn’t lay low and let time fix stuff. THIS guy goes back into court to try to get compensation for the few hours he spent in jail before he posted appeal bond. THIS is a guy who just doesn’t lay down and quit. THIS is the guy that could bring us back a State Championship. Juvenile Sentencing 1:00 p.m. - 2:00 p.m. Presented by Gordon Allen Drake Law School Friday, April 29, 2016 JUVENILE SENTENCING State v Kendall, 167 N>W. 2d 909 (Iowa 1969) “Trial court and we on review should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant’s age, character and propensities and chances of his reform. The courts owe a duty to the public as much as to the defendant in determining a proper sentence. The punishment should fit both the crime and the individual.” At 911 quoting 24B C.J.S. Criminal Law 1980. Roper v Simmons, 543 U.S. 551 (2005) Death Penalty is unconstitutional Cruel and Unusual Punishment under the 8th Amendment and 14th Amendments, when applied to those under 18 at the time of the commission of the crime. Graham v Florida,560 U.S. 48 (2010) 8th Amendment also prohibits Life Without Parole (LWOP) for juvenile offenders who did not commit homicide Miller v Alabama, 132 S. Ct. 2455 (2012) 8th Amendment also prohibits mandatory LWOP sentences for juvenile homicide offenders. These three cases “teach that in imposing a State’s harshest penalties, a sentence misses too much if it treats every child as an adult…Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features – among them immaturity, impetuosity, and failure to appreciate risks and consequences.” At 2468 Children “have a lack of maturity and an underdeveloped sense of responsibility…are more vulnerable…to negative influences and outside pressures… (and) they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime producing settings.” At 2464 quoting Roper at 569 Court relied on “common sense” or “what every parent knows” and numerous empirical studies to reinforce its conclusion that juveniles are fundamentally different than adults. Punishment for crime should be proportioned to both the offense and the offender. At 2463 “Children are different: and categorically less culpable” Because children are different, the penological objectives of retribution (punishment) and deterrence are ineffective. LWOP may only be imposed when, after performing an individualized consideration of the seriousness of the offense, mitigated by the characteristics of youth. Governor Branstad, issued a blanket Executive Order commuting all LWOP sentences for juveniles (47) to a term of 60 years imprisonment prior to consideration for parole. State v Null, 836 NW 2d 41 (Iowa 2013) “The typical characteristics of youth …are to be regarded as mitigating, not aggravating factors.” At 75 Sentences that effectively deprive a juvenile offender of a meaningful opportunity for early release on parole during the offender’s lifetime based on demonstrated maturity and rehabilitation are unconstitutional. The prohibition applies not just to LWOP, or de facto life sentences, as in the Governor’s commutation, but also to “lengthy term of years sentences.” At 72 A “geriatric release” does not provide the “meaningful opportunity” required. At 71 “Because incorrigibility is inconsistent with youth. Care should be taken to avoid an ‘irrevocable judgment about [an offender’s] value and place in society.’” Miller requires “more than a generalized notion of taking age into consideration as a factor in sentencing.” At 74 A district court must expressly recognize certain concepts and “should make findings why the general rule [that children are constitutionally different than adults] does not apply” at 74 State v Ragland, 836 NW 2d 107 (Iowa 2013) When a defendant attacks the constitutionality of a sentence, our review is de novo. At 113 (not abuse of discretion) “Miller requires an individualized consideration of youth as a mitigating factor at a sentencing hearing” at 121 The Governor’s blanket commutation “did not affect” the constitutional requirement that the district court proceed with an individualized hearing as required by Miller. The sentencing scheme required under the Iowa constitution is retroactive. At 117 State v Louisell, to the contrary is remanded. Imposition of LWOP is not constitutionally “fixed” by “substituting it with a sentence with parole that is the practical equivalent of a life sentence without parole. At 121 The sentencing court “must consider” (1) the chronological age of the youth and the features of youth; (2) family and home environment; (3) the circumstances of the offense including the extent of the youth’s participation in the conduct and the way familial and peer pressures may have affected; (4) the incompetencies associated with youth; and (5) the possibility of rehabilitation. At 70 n.6 State v Pearson, 836 NW 2d 88 (Iowa 2013) “The typical characteristics of youth, such as immaturity, impetuosity and poor risk assessment, are to be regarded as mitigating and not aggravating factors.” At 95 2013 Iowa Acts ch. 42, s. 14, codified as 901.5(14) “…if the defendant, other than a child being prosecuted as a youthful offender, is guilty of a public offense other than a class A felony, and was under the age of 18 at the time of the offense, the court may suspend the sentence in whole or in part, including any mandatory minimum sentence or with the consent of the defendant defer judgment and place the defendant on probation…” This statute “does not change the minimum term requirement for juveniles if a prison sentence is imposed by the court, it does abolish mandatory prison sentencing for most crimes committed by juveniles.” State v Lyle State v Lyle, 854 NW 2d 378 (Iowa 2014) Robbery in the second degree statutorily requiring mandatory minimum of seven years imprisonment. (70%) Because the mandatory nature of the sentence foreclosed any consideration of circumstances in mitigation of punishment, the mandatory punishment violates the Iowa Constitution. “We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children, their inability to make critical decisions in an informed, mature manner, and the importance of parental role in child rearing.” “Upon exercise of our independent judgment, …we conclude that the sentencing of juveniles according to statutorily required mandatory minimums does not adequately serve the legitimate penological objectives in light of the child’s categorically diminished culpability.” “…the prevailing medical consensus continues to inform our opinion.” “…attempting to mete out a given punishment to a juvenile for retributive purposes irrespective of an individual analysis of the juvenile’s categorically diminished culpability is an irrational exercise. . .the US Supreme Court has opined ‘the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence.” “Rehabilitation and incapacitation can justify criminally punishing juveniles but mandatory minimums do not further these objectives in a way that adequately protects the rights of juveniles with the context of the constitutional protection from cruel and unusual punishment…” Juveniles can still be sentenced to long prison terms but not mandatorily. The Iowa Constitution prohibits the “one size fits all” mandatory sentencing. State v Louisell, 865 NW2d 590 (Iowa 2015) 17 yr old Merit Scholar at ISU, convicted of First Degree Murder, was set for resentencing following Miller. District court found that decision not to be retroactive and denied the Motion. The case was remanded following the Court’s decision in Ragland. At the subsequent resentencing, the district court held the penological justifications of retribution and deterrence to be inapplicable, the defendant was not a threat to public safety, and had “achieved all the rehabilitation she could in prison” and placed her on work release. The decision was stayed pending the State’s appeal. The Court held the district court was without constitutional authority to impose a term of years sentence, because not prescribed by the Legislature. Only the binary option of Life with or Life without parole opportunity was available. The Court specifically did not reach the issue of whether Life with, was unconstitutional, as applied in Louisell’s case, or whether the lack of response by the Parole Board was a denial of the defendant’s “meaningful opportunity” for parole in her lifetime. Both issues had been briefed, and argued, but were not reached. Affirmed State v Seats, 865 NW 2d 545 (Iowa 2015) We do not reach the issue of whether LWOP categorically violates the Iowa Constitution because we are remanding the case for resentencing The court again unequivocally announced that “the sentencing judge should consider these family and home environment vulnerabilities together with the juvenile’s lack of maturity, underdeveloped sense of responsibility, and vulnerability to peer pressure as mitigating, not aggravating factors. At 556 “The sentencing court acknowledged Seats’s troubled youth but concluded it did not outweigh the serious nature of Seats’ crime and behavior. ..Ultimately…the sentencing court granted [sentence correction] because of a lack of individualized consideration…but denied the motion and upheld Seats’ sentence of life with parole eligibility after 60 years as commuted by the Governor. At 552 In remanding for resentencing, the Court noted that “the district court appeared to use Seat’s family and home environment vulnerabilities together with his lack of maturity, underdeveloped sense of responsibility, and vulnerability to peer pressure as aggravating, not mitigating factors.” At 557 In Null we required a sentencing court consider: “life in prison without parole should be rare and uncommon…a presumption… Children are constitutionally different…family and home environment …is mitigating not an aggravating factor. Circumstances of the homicide offense, including the extent of the juvenile’s participation and the way family and peer pressures may have affected him. The juveniles’ actions are less likely to be evidence of irretrievably depraved character.” “The sentencing judge should only sentence those juveniles to life in prison without possibility of parole whose crime reflect irreparable corruption.” At 556 . “Scott and Steinberg, Rethinking Juvenile Justice 60, (2008)…emphasize that ‘adolescents, even at age 16 and 17 are immature in their psychological and emotional development, and this likely affects their decisions about involvement in crime in ways that distinguish them from adults.’ Id. At 131. In light of the science, the fact that a defendant is nearing the age of 18 does not undermine the teaching of Miller and Null.” At 557 If the judge determines this is one of those “rare and uncommon” cases, “the judge must make specific findings of fact discussing why the record rebuts the presumption.” “’In making such findings, the district court must go beyond a mere recitation of the nature of the crime, which the Supreme Court has cautioned cannot overwhelm the analysis in the context of juvenile sentencing.’” At 557 quoting Null at 74-75 “The question the court must answer at the time of sentencing is whether the juvenile is irreparably corrupt, beyond rehabilitation, and thus unfit ever to reenter society, notwithstanding the juvenile’s diminished responsibility and greater capacity for reform that ordinarily distinguishes juveniles from adults.” At 558 Hecht, J, concurring “…[I]n my view, children are so different that Article I, section 17 of the Iowa Constitution categorically prohibits sentencing them to life without parole.” at 558 At least 12 states have eliminated the option of LWOP: Alaska, Colorado, Kansas, Kentucky, Montana, New Mexico, Oregon, Hawaii, Massachusetts, Texas, West Virginia and Wyoming as well as the District of Columbia. Several others have pending legislation. This is the position of the American Bar Association. “Any sentencing scheme that permits such a conclusive determination before the juvenile’s potential for maturation and rehabilitation can be reliably known or predicted is in my view intrinsically disproportionate and therefore cruel and unusual. At 560 “The Supreme Judicial Court of Massachusetts [in Diatchenko, 1 NE 2d at 284] relied on two analytical pillars I would adopt here: first, that the ‘back end’ parole board mechanism better accommodates juveniles’ capacity for change than a ‘front end’ irrevocable LWOP determination; and second that juveniles have diminished culpability no matter the offense they commit. Iowa should join Massachusetts on the path it has forged.” At 563 State v Jason Jon Means, No 14-1376, Iowa Ct of Apps., Oct. 28, 2015 17 yr old convicted of second degree murder, first degree robbery, first degree kidnapping, criminal gang participation, possession of offensive weapon, after resentencing received life term with possibility of parole, and concurrent term of 95 years with possibility of parole. District court discussed the Miller factors and found them non-mitigating. District court read Iowa cases as only applying to mandatory minimum sentences where defendant is not eligible for parole and “we don’t have that here.” At page 18 “It is appropriate for this court to defer to the supreme court on whether to extend the holdings of Null, Pearson and Lyle to cases where juvenile offenders do not face a mandatory minimum sentence.” At 19 Accordingly, applying existing law, we affirm the denial of the request for resentencing hearing. “He is immediately eligible for parole and the record shows the board has already reviewed his request. At 23 Application for Review by Supreme Court denied January 5, 2016 State v Arif Hajtic 15-0404, October 28, 2015 Following Lyle resentencing, Defendant was sentenced to indeterminate term of 25 years and to serve 70 %. Appellate court read Lyle to “require a sentencing court to consider all of the enumerated factors, and all must be considered as mitigating factors and cannot be used to justify a harsher sentence”, quoting Lyle. At 403 n. 8 Remanded for resentencing because district court “failed to consider the fourth factor (challenges for youthful offenders in navigating the criminal process). This was error and requires reversal.” At 4 Second the district court “impermissibly treated at least one of the factors as aggravating rather than mitigating. The court stated: ‘I do think the age you were at the time you committed the offense of first degree robbery is significant. You were just 30 days shy of your 18th birthday and if you would have committed this offense just one month later, we wouldn’t be here right now….and obviously someone just one month shy of 18 ought to have a little better judgment….as someone …at say 15 or 16.” At 4-5 Controlling case law provides this was error. State v Jake Giles, 15-0021 Dec. 23, 2015 17 yr old, pleading guilty to attempted murder and second degree robbery, sentenced to mandatory minimums per statute. Filed motion to correct after serving 15 and ½ years as “model inmate”. State admits “it appears harsh to order Giles, now 34 yrs old, to serve an additional 9 years as mandatory” but suggested consideration of Lyle factors justified. At 4 Upon review, the sentencing court properly considered the factors and the newly imposed sentence does not amount to cruel and unusual punishment. At 5. No further review, procedendo Feb. 6, 2016 State v Sayvon Andre Propps, 15-0323 December 23, 2015 Four counts of willful injury causing serious injury, sentenced to four consecutive terms not exceeding ten years with no mandatory minimum. No necessity to consider Lyle factors. At 2 District court found defendant was immediately eligible for parole. Defendant argued “all juveniles especially those sentenced to a lengthy term of years are entitled to individualized sentencing regardless of whether there is a mandatory minimum.” At 3 “Language in Lyle lends credence to the defendant’s contention” citing to “’attempting to mete out a given punishment to a juvenile for retributive purposes irrespective of an individualized analysis…is an irrational exercise.”’ At 4, Lyle at 399 However “at the end of the day, the Court limited its holding to prison sentences with mandatory minimums.” At 4 Twice this court has declined to extend individualized sentencing, heeding the Lyle holding. See State v Means, and State v Marshall-Limoges, 14-1610. Affirmed. Application for further review, January 8, 2016 pending Montgomery v Louisiana, 14-280, Jan. 25, 2016 US Supreme Court held that Miller announced a new substantive rule of constitutional law and under the Court’s retroactivity framework of Teague, the case must be applied retroactively to juveniles whose LWOP sentences were final prior to Miller. No practical effect in Iowa because of Ragland. The Court discussed parole in the context of the State’s concern that applying the cases retroactively would create undue administrative burdens on state courts, so the Court provided the alternatives of simply making those pre Miller individuals immediately eligible for parole rather than hold a resentencing proceeding. The Court views the parole process as an essential component of its “meaningful opportunity for release” requirements, or at least within the ambit of the requirement that an individualized assessment and sentence must be achieved. The case is important for the strength of the language chosen by Justice Kennedy discussing how rarely lifetime sentences should be given. State v Jose Leonardo Jordan Murcia, 15-0588 February 10, 2016 Forcible felonies when 17, sentenced to ten years for each, consecutively, with mandatory minimum of 70%. On resentencing, original sentence was affirmed. Appealed alleging abuse of discretion for failure to consider all options. Defendant acknowledges the district court articulated its obligation to consider all factors, but overlooked important evidence in the record. In fact the record contained a letter written by defendant several years prior to the resentencing, but was in the record and must be considered. At 5 In addition, district court used the circumstances of the offense as an aggravating factor rather than mitigating, and this was error, even though the court used the factors to justify reimposition of the original sentence. At 3- n.1 Remanded for resentencing. State v Hall, 15-0341 February 10, 2016 Guilty plea to three counts of sexual abuse in the third degree. Defendant challenges special sentence of lifetime parole (903B.1) and registration on sex offender registry for period equal to special sentence. (692A.16(2)) Previously considered by another panel: State v Justice, 14-0151 Nov. 13, 2014, finding claims not yet ripe for review. “the terms of his parole will not be determined until the special sentence takes effect, which will not occur until after he is released from imprisonment on Count 1. Furthermore Hall need not be on parole for the remainder of his life; he could be release early.” At 4-5 Sex offender registration is not punishment, and cannot be cruel and unusual. At 5 Affirmed, Procedendo March 14. State v Pearson, 14-2153 February 10 2016 (yes that Pearson) Finding 35 years without possibility of parole without individualized consideration violated constitution, and was remanded for resentencing. On resentencing, district court imposed original sentence, but with immediate parole possibility. At 3 Defendant contends court failed to consider 901.5(14)(2013) which permits court to suspend in whole or in part a sentence which is not based on a class A felony. Failure to consider constitutes an abuse of discretion. Record shows the court considered the statute but declined its application. District court was found to have correctly applied the Lyle factors. Affirmed; Application for Further Review February 29 pending State v Jamar Wise, 15-0192 March 9, 2016 Sixteen when committed First Degree Robbery, sentenced to mandatory minimum of 17 ½ years. Following Lyle defendant sought resentencing, and subsequently received same sentence. District court stated: “…the offenses you committed…those are all among the very most serious charges that an individual can commit….we have a human being, granted a young human being, committing extremely terrifying and violent offenses against fellow human beings… At 5 Although there is a passing reference to age “as a mitigating factor” there is “not a detailed discussion of these mitigating factors of youth. Our appellate courts have remanded for resentencing when the district court has failed to apply any of these factors…” at 7-8 Defendant did not raise this as an issue, but instead relied on a more generalized allegation that the district court impermissibly used an unproven and unprosecuted offense in the sentencing rationale. State argued that prior criminal history was a proper consideration. “That would be true in the original sentencing hearing. But here the resentencing court’s only role was to decide if the mitigating factors of youth justified removing the mandatory minimum term. The court’s consideration of pending or prior adjudications to justify a harsher sentence was error.” At 9 Remanded for resentencing State v Daunte Bullock, 15-0077 March 23, 2016 16 yr old sentenced on second degree sexual abuse and first degree burglary, received mandatory minimum, sought resentencing. “we conclude the court appropriately considered all of the Miller factors when resentencing…the district court need not mentioin every factor Bullock asserted in mitigation of his sentence…the failure to acknowledge every particular circumstance does not mean it was not considered.” At 8 Application for further review filed April 11, State v Tuecke, 15-0617 April 27, 2016 After revocation of a deferred judgment, defendant was sentenced to mandatory minimum. After Lyle, resentencing resulted in reimposition of the sentence. Defendant challenged the sentence alleging mental disabilities. Wachsler score of 67 “This tributary of the law has not been as crystal clear as a northeast Iowa trout stream…” at 13 “Atkins v Florida, 536 US 307 (2002) (prohibition of death penalty imposed on intellectually disabled defendants) has not been extended to include borderline intellectually disabled…lower courts have found Atkins only applies to death penalty cases…” at 16-17 “Tuecke was given an opportunity for rehabilitation from the get-go; had he complied with the conditions set by the court, no sentence would have been imposed on him.” At 18 “Thus, though the word mandatory was used, it is clear the court used its discretion in considering and them imposing a minimum term of service…” At 21 Further Review ??? State v Gatbel Chany, 15-0340 April 27, 2016 Defendant appeals “from his resentencing hearing based on convictions for three counts of robbery in the second degree…He asserts the district court did not properly consider the factors articulated in Lyle..consequently he claims the court abused its discretion…We conclude …the court found none of the factors to mitigate the chosen sentence…” District court found: “the facts support …mandatory minimum..This case does not involve ‘inane juvenile schoolyard conduct’…classic case of cold and calculated armed robberies…serious and genuine risk that he will commit additional offenses upon release…Defendant has shown little progress in prison toward reform…At 4 Defendant argues “the Lyle factors were actually used as aggravating factors in the decision. The State responds that a factor that is not helpful to mitigate a sentence does not necessarily turn into a factor that aggravates a sentence….The State’s view supports the holding set forth in Lyle…Here the district court went through the factors analyzing each one and determined none of the factors would lessen or mitigate the sentence.” At 5 Affirmed Further Review ??? State v Isaiah Sweet, 14-0455 Argued September 17, 2016, PENDING DECISION Challenge to resentencing; defendant received life without parole. Appeal is based on “abuse of discretion” as agreed by the Parties. Defendant argues Life without parole for any juvenile is constitutionally prohibited. District court found: …”Defendant was almost an adult when he murdered his grandparents…the crimes were horrific…He planned the crimes and acted with cool deliberation and an utter lack of humanity…two helpless and unsuspecting victims shot as they sat in their living room…He may be young but that has not stopped him from showing the world who he is. He is extremely dangerous. He is now and will continue to be a threat to society.” (emphasis added) Oral arguments several Justices made inquiry as to whether this LWOP sentence was that which prematurely sentences a juvenile to die in prison without any consideration of how that individual will grow and mature over the course of his or her life. Revised Iowa Code 902.1(2) Gives district court three options: Life with, Life without, Life with after a term of years. The State “shall” give pre-hearing notice of its intent to seek LWOP. Lists 21 factors to be included in the “circumstances” of the offense. The factors are not listed as aggravating or mitigating nor are the factors presented in any order for consideration. The factors include: impact of the offense on the victims, on the community, threat to the safety of the public, defendant’s remorse, the “heinous, brutal, cruel manner of the murder”; level of maturity of the defendant, “the chronological age of the defendant and the features of youth including immaturity, impetuosity, and failure to appreciate the risks and consequences” is listed as factor (q) with the remainder of the Miller factors listed as (r)-(u) State v Zarate, PENDING 15 yr old convicted on April 6, 2001 of First Degree Murder and sentenced to life without parole; Defendant sought resentencing and challenged 902.1(2) as unconstitutional, alleging the statute allows consideration of improper and unconstitutional factors and fails to account for inadequate parole procedures, denying a “meaningful opportunity”. On December 18, 2015, the claims were denied and he was resentenced to life with parole after serving 25 years. Defendant appealed. State v Ruesga, APPEAL PENDING On resentencing, on December 15, 2015, defendant was given life without parole, for the 1992 death of infant in his custody, severely and repeatedly beaten (Johnathan Waller). District court found the crime committed by the defendant was so unique and horrific that this was the “rare and uncommon case” where LWOP is required and the exemplary record of the defendant in prison does not override the “circumstances of the crime”. Issues remaining: LWOP, constitutional? Intellectually disabled defendants, Atkins Age of application given neuro-biological research on “adolescence”? Standard of review: de novo, or abuse of discretion? Sex offender registration, or life time special parole? 902.1(2) constitutional? Term of years, de facto life sentence, constitutional? Parole board procedures? Ethical IssuesConfronting Criminal Law Attorneys Representing Clients with Mental Health Issues 2:15 p.m. -3:15 p.m. Presented by Jerry Foxhoven Drake Legal Clinic 2400 University Avenue Des Moines, IA 50311 Friday, April 29, 2016 4/27/2016 Ethical Issues Confronting Criminal Law Attorneys Representing Clients with Mental Health Issues Annual Criminal Law Seminar Criminal Law Section Iowa State Bar Association April 29, 2016 Professor Jerry Foxhoven Drake University Law School Balancing Ethical Duties with the Client’s Rights Iowa Rules of Professional Responsibility: Rule 32:1.14: CLIENT WITH DIMINISHED CAPACITY. Iowa Code: § 812.3: MENTAL INCOMPETENCY OF ACCUSED. 1 4/27/2016 Ethical Duties to Clients with Diminished Capacity: Rule 32:1.14: CLIENT WITH DIMINISHED CAPACITY (a) As far as reasonably possible, maintain a normal client-lawyer relationship. (b) When the lawyer reasonably believes that the client has diminished capacity, the lawyer may take reasonably necessary protective action. (c) Information relating to the representation of a client with diminished capacity is protected by rule 32:1.6. Step Number 1: Is the Client Mentally Disabled? Rule 32:1.14 (b): “When the lawyer reasonably believes that the client has diminished capacity . . .” Separate out foolishness or “weirdness” from “diminished capacity.” 2 4/27/2016 Lots of People are Stupid. Some of Our Clients are Really Stupid 3 4/27/2016 Learn to Spot the Signs of Mental Illness. Your Client Cannot Make that Determination for You. Lack of Insight is Common. 4 4/27/2016 Incompetency to Stand Trial Iowa Code § 812.3(1): “If at any stage of a criminal proceeding the defendant or the defendant’s attorney, upon application to the court, alleges specific facts showing that the defendant is suffering from a mental disorder which prevents the defendant from appreciating the charge, understanding the proceedings, or assisting effectively in the defense, the court shall suspend further proceedings and determine if probable cause exists to sustain the allegations.” Raising the Issue of Incompetence to Stand Trial It Resolves the Constitutional/Statutory Duty: Raised by “defendant or defendant’s attorney. Iowa Code § 812.3(1) Defendant’s Testimony Cannot be Used at Trial. Iowa Code § 812.4(3) If Incompetent, Still Eligible for Pretrial Release. Iowa Code § 812.6(1) If Incompetent and Dangerous, Receives Treatment & Cannot be Held Longer than Maximum Term of Incarceration. Iowa Code § 812.9(1) It Resolves the Ethical Duty: Gets You Out of the Equation so that You Can Maintain a Normal Attorney/Client Relationship as Much as Possible. Rule 32:1.14(a) “Reasonable Belief” is Determined by Mental Health Experts. Rule 32:1.14(b) Minimizes the Amount of Confidential Information Released. Rule 32:1.14(c) 5 4/27/2016 Findings on Competency Issue Resolves Almost All Future Issues If the Client is Found to be Incompetent, Criminal Proceedings are Suspended During Treatment. Iowa Code § 812.5(2) If the Client is Found to be Competent, the Court Finds: Defendant is Able to Appreciate the Charges; Defendant is Able to Understand the Proceedings; AND Defendant is Able to Assist in His Defense. NOW YOU CAN TREAT THE CLIENT LIKE ANY OTHER (FOOLISH) CLIENT. How to Proceed After the Client is Found to be Competent Who has the Ultimate Authority? Rule 32:1.2(a): “. . . a lawyer shall abide by a client’s decisions concerning the objectives of representation and . . . Shall consult with the client as to the means by which they are pursued.” 6 4/27/2016 In Criminal Cases, You Should Defer to the Client The Client is the One who has to Do the Time. The Client has Constitutional Rights in His Case. Just Make a Good Record When the Client is Not Following Your Advice. Questions : 7 4/27/2016 Contact Information: Jerry R. Foxhoven Professor of Law Executive Director of Clinical Programs Drake Law School Neal & Bea Smith Law Center 2400 University Avenue Des Moines, Iowa 50311 Office: 515-271-2073 Email: [email protected] 8 Effective Use of a Private Investigator 3:15 p.m.-4:15 p.m. Presented by Matthew Sease Kemp & Sease 104 SW 4th St. Suite A Des Moines, IA 50309 Terry Klooster Finality Investigations PO Box 383 Solon, Iowa 5233 Friday, April 29, 2016 4/27/2016 Matthew G. Sease Kemp & Sease 104 SW 4th St. Suite A Des Moines, IA 50309 State v. Williams, 207 N.W.2d 98 (1973) Number of investigators to be hired Probable cost or rate of pay Area to be investigated Point out with specificity the reasons such services are necessary 1 4/27/2016 Charges Burg. 1st Burg. 3rd Domestic Abuse 2nd Arraigned Application for Depositions Application for Private Investigator Outlined Indigency Unable to afford investigator “In order to effectively and properly prepare the defense herein, it is necessary for the Defendant to be provided with funds for professional investigator.” Provided the estimated costs Provided the name of the investigator and CV 2 4/27/2016 State resisted Application does not specify what defense is to be investigated Private Investigator “is not an expert that could give an expert opinion on any matter involved in this case nor any defense for that matter Defense Attorney request ex parte hearing regarding the application Objected to presence of county attorney regarding necessity of P.I. Disclosing the information would impede on trial strategy Violation of due process rights Violation of effective assistance of counsel 3 4/27/2016 Defense Counsel Refused to provide specifics regarding the use of the investigator Simply stated that the investigator would be interviewing witnesses Was willing to provide the information ex parte County Attorney Information presented by Defense Counsel was insufficient under Williams No authority to be heard ex parte “…my fear is this investigator’s job is going to be to dig up more dirt on [the victim] and present that to her during the deposition to the point where she’s not going to be wanting to cooperate in this prosecution.” Denied the motion to be heard ex parte Agreed to suspend the proceedings Defense Counsel filed an application for interlocutory appeal Granted by Supreme Court 4 4/27/2016 Can Iowa Code § 815.7(1), (5) be interepreted to allow ex parte hearings? Is there a Constitutional Right to be heard ex parte? Majority support a constitutional right or statutorial to ex parte hearings Other states allow ex parte hearings in limited circumstances 3 states determine no right to ex parte hearing 5 4/27/2016 18 U.S.C. § 3006A(e)(1) Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate judge if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services. 1. An attorney who has not entered into a contract authorized under section 13B.4 and who is appointed by the court to represent any person pursuant to section 814.11 or 815.10 shall be entitled to reasonable compensation and expenses. …. 5. The expenses shall include any sums as are necessary for investigations in the interest of justice… 6 4/27/2016 Declined to rule on the Constitutional Issue Declined to follow the Federal Courts Created a new procedure for ex parte hearing requests under Article 5§4 The supreme court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe; and shall have power to issue all writs and process necessary to secure justice to parties, and shall exercise a supervisory and administrative control over all inferior judicial tribunals throughout the state. “Trial courts should use this protocol in those rare circumstances when the State objects to the appointment of a private investigator for an indigent defendant.” 7 4/27/2016 Defense Counsel Duties File atimely, application for investigator State the name An estimate of the costs “…if possible, a general description of what services the investigator will provide.” County Attorney/State Duties Must be given opportunity to resist Generally may only object if the application “will prejudice the administration of justice.” Done to delay the proceedings Untimely filed “The State should not impede the right of an indigent defendant to fully investigate the case or develop a valid defense.” 8 4/27/2016 Trial Court Duties If State Resists- County Attorney has right to be present If the application “may have some merit but does not contain adequate information” Ex parte hearing may be held with Defense Counsel Must be reported Transcript must be sealed Any order that would disclose defense strategy or work product must be sealed Separate order granting or denying the application Applicability to experts other than P.I. Constitutional Issues Effective Assistance of Counsel Due Process Equal Protection 9
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