Runnin' With The Devil

A recent two day post conviction relief hearing concluded with me not in attendance, more's the pity, but the press of daily affairs, including filing documents in Marshall County, took me away from the Des Moines area. It was a futile effort, and an appeal may follow but nevermind.

I'm referring, of course, to the recently concluded post conviction relief hearings in David Flores v. State, in which Flores, among other things, was allowed to present his views on the legal process wherein he lost his direct appeal as of right, and in which he fulminated about his appellate attorney's incompetence and Joe Weeg's attempts to, as he said, "trap him."

Well, that's what people like Joe Weeg do. They trap liars, or, more accurately, they go about the business of helping liars to trap themselves. People who tell the truth rarely have a problem with such matters because they're never trapped by the truth-they're trapped when they try to skirt the edges of uncomfortable or damaging truths.

See for yourself.

Dean Wigmore once famously observed, "Cross examination is the greatest legal engine ever invented for discovery of the truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross examination if he is skillful enough not to impale his own cause on it."

That knowledge in itself probably was enough to cause Flores to invoke his fifth amendment privilege with respect to actual substantive testimony in a way that would have made a New Jersey mobster proud.

Of course, he's promised to tell all if, and only if, only he gets a new trial.

Don't count on it happening, folks.

The procedure was somewhat irregular to allow introduction of supplemental pro se arguments and briefs when, as we've already seen, Flores was ably represented by his counsel, but I suspicion that was to introduce an argument into the record that could not have been done by his counsel.

Distilled to its essentials, Flores argues that his counsel on direct appeal was ineffective because he did not raise arguments that Flores now presents as a pro se litigant, which automatically become a due process violation requiring reversal. At least that's what I think he said.
He also argued that ineffective assistance of counsel on direct appeal entitles him to a new trial, but concedes that this would be a case of first impression in Iowa.

I still think that the issue of the Brady evidence-the Gaines interview and whether John Wellman knew or should have known about it is central to whether Flores will get a new trial.

The law's pretty clear on withholding of potentially exculpatory evidence-it does not have to be intentional or even knowing, it just has to happen.

And that's the part of the testimony I missed.

Judge Nickerson expects to rule sometime this summer, and I think that he was being very careful with this case and the handling thereof.

Put The Lime In The Coconut, Part II: Law Enforcement, Gambian Style

I didn't make this up, folks. Think you've got problems? Read on.

We're reliably informed by Amnesty International, bes' li'l ole human rights organization around, that up to 1,000 folks in Gambia have been accused of witchcraft, removed from their homes, forced to drink various and sundry hallucinogenic cocktails and confined in prison camps.

It is said that many are forced to confess to being witches. It seems that a rolling caravan of witch hunters will arrive in a village early in the morning when most folks are in the rack, round up a few hundred at random, and away they go.

Union County Confidential

By now, everyone except three guys living in a capsule on the sea floor know that former Creston PD officers Sickels and Christiansen were convicted of second degree sex abuse in a trial that was moved to Woodbury County.

Several thoughts come to mind.

One, it's a bad day for law enforcement in that the perception of abuse of power and unfairness that a lot of people have has just received some believability-in particular among traditionally underserved groups.

That's a bad, bad thing. Some folks will see a rapist behind every badge.

It's also a bad day for Sickels and Christiansen, who are almost certainly going to do time over this. Sexual abuse in the second degree is a Class B felony and it is required that the offender serve 70 per cent of a 25 year sentence if my understanding is correct.

Doing time for a former police officer convicted of a sexual offense is not my idea of a great way to spend the next seventeen and a half years.

It goes without saying that it's a bad day for their victim. I suspect that nobody ever really recovers completely from such a thing. The effect is, as a witness in one of my cases once said, "like a slow bomb-the first thing it does is kill everything and everyone around it."

Second of all, as an attorney and former prosecutor I know that what a jury hears and sees is about 50 per cent of what's really there. The rules of evidence serve to limit the introduction of otherwise probative evidence for reasons that are, well, kind of silly but hoary with age and bedecked with mostly undeserved honors.

Third of all, there are only three people who really know what happened that night at the closed bar in the Crestmoor Country Club-maybe four, if either of these fellows is a practicing Catholic familiar with the sacraments.

I'm not one of them and neither are you, and all we really know is that whatever happened was awful and tawdry and horrifying on every level imaginable.

Fourth of all, I often wonder at the advisability of changes of venue in such cases. I don't care who you are, in small towns there's always someone who thinks someone else is trash and got exactly what they deserved. Move the trial and you lose those people. On the other hand, if you did what they say you did, you might well have done it before, and you risk having people with knowledge of that sitting on your jury. One also wonders whether these two were asleep at the wheel when the part about "I want a lawyer" was covered in class and how all questioning must thereafter cease.

The flopping sound you hear is Ernesto Miranda rolling over in his grave at about 700 rpm. It doesn't speak well for their acuity in matters criminal, and they probably could have learned a few things from some of Union County's artful dodgers and master practitioners of the criminal arts.

But nevermind.

One thing's for certain here, and that is that as my used car salesman friend John says "For most people, perception is the same thing as reality." He's sold a lot of cars with that knowledge, too.

The damage is done, it's going to take a long time to earn back the confidence and trust of the public, and that can only be done, if ever, with good works, absolute honesty, transparency, humility, inclusiveness in the 'boyz club' and avoidance of even the appearance of impropriety.

A down payment on the accountability's already there, as we've just seen.

But this is the beginning of a long hard road for a lot of people who didn't deserve this.

Photo courtesy Getty Images.

Terry Patdown Goes Awry In Blackhawk County

State v. Chihak, no. 08-0452 (Iowa Ct. App. March 11, 2009)

Chihak was a passenger in a car that was stopped for a noisy muffler.

The driver consented to a search of the vehicle and Chihak was asked out.

The officer then proceeded to say to him "I'm going to pat you down, make sure you don't have any bombs, guns, knives, or anything that can stick me." Chihak remained silent. The officer testified that he could see into Chihak's pocket and saw a bag of marijuana. Chihak was arrested and tried for third offense possession of marijuana, a felony.

Chihak moved to suppress the fruits of the search, arguing that the patdown was an unreasonable search barred by the federal and state constitutions.

The state argued that the pat down was justified under the officer safety exception. However, testimony indiciated that Chihak was cooperative, provided his identification, was not threatening or otherwise acting squirrely.

That, the court noted, vitiated the idea that Chihak was a danger to the officer. Although such determinations are made on a case by case basis, there were no specific and articulable facts that suggest that there was a justification to subject Chihak to a Terry patdown.

The state argued that the marijuana was in plain view, but the court noted that Chihak had been placed in the position where the marijuana was in plain view as a result of the illegal search, and the plain view exception did not therefore apply.

The takehome's clear. There have to be specific and articulable facts to invoke a Terry patdown.

I may take the Dunce Award and give it to someone else.

State v. Hill, no. 08-0657 ((Iowa Ct. App. March 11, 2009)

While investigating the shooting death of Shane Hill, a Boone County farmer, it was determined by police operatives in that his wife had been having an affair with Daniel Blair.

After two interviews, they learned that the affair was rather more recent in nature.

Hill's wife was called and asked to come to the sheriff's office for an interview, the pretext being that the DCI agent needed to give her information from Shane Hill's cell phones.

She came to the sheriff's office and was asked to discuss further questions.

The interview, with breaks, lasted 7-1/2 hours.

It started innocuously enough and she was free to leave, as she stepped outside for a cigarette, but after that first break of about 20 minutes the questioning escalated. The conversation was leading in nature and the questions were no longer informal.

The agent said to the subject among other things, "You cannot leave here."

Hill moved to suppress the statements she made, arguing that the setting was a custodial interrogation and.........and..............and.............a drum roll, maestro!

She had not been given her Miranda warnings.

The trial court agreed, and suppressed the statements she'd made after the first break.

The court also notes that deceptive stratagems employed by the police were an indicia of custody under United States v. Griffin, 922 F.2d 1343 (8th Cir. 1990).

Muscatine Homicide Appeal

State v. Linn, no. 07-1984 (Iowa Ct. App. March 11, 2009)

Linn called police to tell them she'd shot someone. When they arrived at the home they found one Barry Blanchard, deceased with a bullet wound. A loaded rifle was found in the house.

While officers were in the house, a Muscatine PD officer stayed with the defendant on the porch.

An officer in the house yelled "Did she say she shot him?" and the officer on the porch asked Linn "Did you shoot him?" to which Linn answered "yes". She also asked "Did he die?"

Linn was transported for an interview but was not under arrest. She was read her Miranda rights, but before she was read them she asked "Did I kill him? Did he die?"

After she was read her rights she admitted to the shooting. She moved to suppress her statements, which was overruled. She testified in her own defense at trial, alleging the defenses of intoxication and justification, but was convicted of first degree murder and received a mandatory life sentence.

Linn argues that her Miranda waiver was not knowing, voluntary and intelligent. (parenthetically, we certainly agree that it was not intelligent but nevermind.)

The court first found that the issue of whether she was in custody at the time had not been preserved and was thus treated as waived.

Further, the court found that the officer had not tricked her into signing the waiver of her rights, nor was he overbearing or giving inducements to get her to waive her rights.

Other issues were discussed that are outside the search and seizure parameters of the case, but one thing that the court teaches is written in words of fire that should be a reminder to all of us.

"We are aided in our de novo review of this case by a complete videotape and audiotape of the interaction between Linn and the officer, her signing the miranda form, and the interrogation that followed."

Scott County Speedy Trial Case

State v. Grice, no. 08-0103 (Iowa Ct. App. Mar. 11, 2009)

Grice was charged with sexual abuse and distributing cocaine to a minor. Two days before his speedy trial deadline was up, the state moved to dismiss the information "in furtherance of justice", which was granted by the court.

The state filed a second trial information which contained the original charges as well as two additional counts of sexual abuse and a count of first degree kidnaping.

Grice moved to dismiss the information arguing that there were insufficient grounds to dismiss the original information and defeat his right to a speedy trial. He was found guilty of three counts of sexual abuse and distributing cocaine to a minor and dispatched to a fine state health resort for his delectation.

The court held that if the dismissal is in the furtherance of justice, felonies and aggravated misdemeanors can be refiled, but if the charges are dismissed to avoid a speedy trial deadline they cannot be refiled.

The court found that the state's proffered reasons for dismissing the first trial information were faulty, except for the fact that a codefendant had pled guilty and agreed to testify against Grice, which could have facilitated plea bargaining. The trial court found that this was a sufficiently valid reason to reject Grice's motion to dismiss and thus support the state's refiling.

The point is, that ninety days goes by fast. I got caught by it one time. Mark your calendars.

The Jive Ass Turkey Awards for 2009

and the winnah is Frank Dotseth.

State v. Dotseth, no. 08-0504 (Iowa Ct. App. Mar. 11, 2009)

Dotseth was convicted of five counts of third degree sexual abuse in Winnishiek County.

He's a minister in the religion he created.

His excuse was that the contact with a thirteen year old female neighbor was part of a holistic treatment to alleviate a rash in the girl's privates.

That doesn't explain, of course, the part about the......errr.....penis.

The girl's claim that he had intercourse with her, he explains, could be accounted for by his inadvertently hypnotizing the girl.