News From The Field

Here's a letter from a correspondent. It reads, in part:

Dear Sparky,

Is it just me or does it seem that SOME defense attorneys continue to bring up old arguments that never seem to work out for their client? I realize they got a job to do (challenge big-brother), but it just seems they either are trying to put on a "show" for their client or they're throwing "hail-mary" arguements that never seemed to work.

Example, our office receives a letter every quarter from the AG's office. This letter shows the results of numerous court rulings all over the state that relate to "Search and Seizure" and you can read the facts of the case and what the courts decided. And to be honest, it seems like the same issues are argued over and over.

Well, I was reading one where an officer/deputy pulled over a car after it was seen that the 3rd brake light wasn't working properly. Once stopped, the defendant ended up getting arrested for something (OWI or Dope I think).

During court, the defense made the motion to supress citing the officer/deputy's stop was unlawful because both brake lights were working and the third wasn't required. Well, it clearly says in the Iowa Code, "ALL FACTORY LIGHTING MUST BE IN WORKING ORDER" and this of course would mean the (3rd) lite would also have to work.

My point is.....why would they even try to argue that issue? I guess I'm hoping you can explain that for me.....you'd think after all the prior rulings, everything is laid out and arguing is a waste of time.

The answer, from the defense attorney's perspective is twofold and they both compel the result.

First of all, it's a gambit to see if you can catch the opposition napping. It happens, more than you'd think, that officers and county attorneys aren't up on the latest nuances of search and seizure law-maybe up on ANY nuances, for that matter, because they've been too busy rounding up bad guys to read the Iowa Law Enforcement Reporter, your source for cutting edge court decisions in Iowa.

In fact the first thing I do when I get a new case is go to the agency and get the police report to see if there's a get out of jail free card in it for my client.

Second and more nefarious is the ever popular "ineffective assistance of counsel" noises that the Iowa Appellate Defender makes in every damn case they catch, and the constant hectoring of Defendants in Denial to "work my case!"

As a practical matter, I had an experience like this with a client a while ago. She's accumulated four drug convictions and done time-in short, wasted the last fifteen years of her life in and out of prison. So she gets nabbed-again. Parole violation with 25 years behind, the triple punishment threat, the drug charge escalated to a felony and to top it all off, the Bitch.

So I get her a pretty sweet deal considering. Plead and go, they'll drop the habitual offender enhancement and take concurrency with the parole violation.She's OK with it. But then, they move her somewhere where she's hobnobbing with the guardhouse lawyers.

Two days later she calls me "Hey! I can't do this time! I've been looking at these predicate charges that underpin the one I've got now, and I was in prison those times so I couldn't have done that. They're not my charges, it must have been somebody else! I need you to clear them off my record, the charge will be reduced to a misdemeanor, and I'll get released and the parole violation will go away."

I tell her, "Look....even if that wasn't you, the time to appeal those cases is long since gone. Let's concentrate on what you can do today." She says "That's bullshit, man! I just can't seem to get you off your ass to work my case!" I say, "I'll pull the files but don't expect much from them. And look. Don't call me from the jail unless it's an emergency. I'm not going to sit here and listen to you scream at me. I'm not your punching bag."

Shee says "Well then, I want you to remove yourself from my case." I say "Are you sure about that?" She says "You're damn right-you're fired." and hangs up.

Then, I get feeling guilty. So I pull up the files , map out a timeline and there's no overlap. Hell, one of the cases was actually a trial. She was in prison good and proper, all nicely buttoned up.

That's the unreasonableness of the people we deal and the demands they make on a daily basis. Denial is so ingrained in them that they make unreasonable demands and unleash the hellhounds on their attorneys when the magic wand doesn't turn crap into gold at their command. And to be sure, they've done well with denial and rage-it's usually sufficient to intimidate a lot of people, until they try to use it against their own criminal records.

Because of that, there is an attorney tendency to dot every i and cross every t, no matter how insignificant it may seem and no matter how many times it's been done before.