A Word of Caution

It is depressing to have to report this but there's a point to be made, so listen up, people.

This comes from our ordinarily placid and laid back neighbors to the north. It's even more troubling when you read that this was the first officer who died in the line of duty since 1983-they don't make killing cops a regular practice in Ottawa. It gets worse-the offender in this case was a soon to be former officer himself.

Tuesday last at about 4:30 a.m. local time, P.C. Eric Czapnik, a Polish emigre and father of four who had joined the Ottawa, Canada police department a few years ago was sitting in his squad car outside the emergency room of the Ottawa Hospital Civic Campus was stabbed to death. Although he couldn't have been in a better place to be injured, all the efforts of emergency personnel were in vain and Constable Czapnik died at about 5:30 am local time.

P.C. Czapnik joined the force at the age of 48 after emigrating from Poland in 1990, where his father had been a police officer for 30 years or more, and he still had family in Warsaw.

What's more than ordinarily troubling about all this is that the person wielding the knife was an on the skids R.C.M.P. officer from Saskatchewan who'd been furloughed from the Mounties after threatening a Mormon bishop with a knife. Kevin Gregson been told to resign or be fired, but nobody'd pulled the pin on him so he was at least nominally still a member of the R.C.M.P.

The point to be made is one I've made a number of times and one you've probably heard more times than you can count, but it is this. There is nothing normal about this world or anyone in it, particularly when you wear the uniform.

Be safe.

Photo courtesy CBC.

New Heavy Lifter Takes a Bow,

Almost completely overlooked in the to-do over the 787 and its revolutionary first flight/proof of concept was, arguably, and equally important first flight-at least to the people whose jobs are on the line- and that was of the Airbus A400M military cargo lifter.

It's rare enough when something that's so new the paint isn't dry gets airborne with propellers these days-and what propellers they are. In addition, the A400M's Europrop engine installation is a clean sheet of paper design that's got enough power to haul the goods.

Now. You know that I have a major weakness for big muscular props, and I consider the Convair 580 to be the finest aircraft ever made anywhere. But this is light years ahead of the 580.

All this may be moot, however, as cost overruns and delays have put the program at risk of cancellation.

It seems that Airbus agreed to a fixed cost contract (something we don't do anymore here in the bumptious rude frontier republic that is the United States), and when the development spiraled out of control that left them holding the bag and under a threat to have the countries that ordered it eat their lunch for them.

It reminds me of a case I worked on a number of years ago. A guy out west of here operated a custom feedlot. Here's how the deal worked. You sign a contract, he acquires the cattle, feeds them to market weight at a fixed cost, merchandises them and you split the profits.

All of that was wonderful-until, in 1996, corn, which had been selling at about average prices of $2.50 a bushel went to $3.90 a bushel.

Image courtesy of and property of Airbus.

Blues for Phyllis Davis, Part Two.

As my regular readers probably know, we did an in depth dissection of the murder of Phyllis Davis-a blameless woman on her way home from work who drove into the middle of a gang war shootout between the city's nascent Bloods and Crips franchises.

Among the other desperadoes, one David Flores was convicted of the murder of Davis and has spent the last decade and more cooling his heels in Fort Madison.

It now appears that my predictions were more or less accurate back on January 30th of this year-which ought to convince any doubters that I was paying attention in law school even though to all the world it may have looked as if I was snoozing.

It seems that the witness interview taken by police investigating the murder of Rafael Robinson (as yet unsolved), in which the witness implicated Robinson in the murder and which was inadvertently not released to the defendant's attorney was enough of a Brady v. Maryland error to earn Flores a new trial.

It is said that Judge Nickerson also found the testimony of Robinson's then girlfriend Carla Harris credible and admissible in which she opined that Robinson admitted to the homicide shortly after it occurred. It is described as newly discovered evidence.

This, of course, stretches the definition of credibility like silly putty
, to wit, Carla Harris, an intimate associate of a known gang member in the hothouse atmosphere of a small midwestern city, knew absolutely nothing about the shootout and murder of Davis and kept her mouth shut for the last 13 years. It's quite possible she was more scared of being branded as a snitch than interested in bringing the facts to light.

I have not yet seen a copy of Nickerson's opinion and it is left unexplained why it took him five months to figure out how to apply Brady v. Maryland, but there you have it. The existence of the so called Trimble Report was well known to a number of people during the pendency of the Flores trial-and it was even known to an attorney who was in the Flores courtroom on behalf of one of his other clients.


Phyllis Davis took a bullet in the chest and drowned in her own blood in the middle of a busy downtown intersection in Des Moines.

Just so we keep our focus.

Here's what I garnered off ICIS, and while you're reading that I'll be trying to find the opinion.

THE COURT FINDS THAT THE "TRIMBLE REPORT" WAS

UNINTENTIONALLY OMITTED FROM DISCOVERY PROVIDED TO DEFENSE

COUNSEL, JOHN WELLMAN, PRIOR TO FLORES' ORIGINAL TRIAL AND

AS A RESULT THE DUE PROCESS RIGHTS OF DAVID FLORES WERE

VIOLATED/THE COURT FURTHER FINDS THAT THE 03/24/09 TESTIMONY

OF CARLA HARRIS IS ADMISSIBLE PURSUANT TO IA RULE OF

EVIDENCE, R.5.804(4) AND FURTHER FINDS THE HARRIS TESTIMONY

IS NEWLY DISCOVERED EVIDENCE, WHEN CONSIDERED W/THE TRIMBLE

REPORT COULD LEAD TO A DIFFERENT RESULT/THE COURT FURTHER

CONCLUDES THAT ITS FINDINGS SHOULD NOT BE INTERPRETED AS A

STMT OF INNOCENCE, RATHER, THAT FOR REASONS PREVIOUSLY

DISCUSSED, THE APPLICANT'S MOTION FOR POSTCONVICTION RELIEF

IS SUSTAINED AND HE SHOULD BE GRANTED A NEW TRIAL

Ho Ho Ho. What does Santa have in his bag?

I've decided to do a little combining this time around in the interests of brevity and less work for yours truly. In the spirit of the times, you unnerstand, doing more with less and all that.

A drum roll, maestro. T-t-t-t-t-t-t-t-t-t! Now for the parade of rogues.

State v. Gustafson, no. 08-1429 (Iowa Ct. App. Dec. 17, 2009).

Gustafson was stopped in Guthrie County after a trooper observed that his license plate was not illuminated-a violation of Iowa Code section 321.288. The trooper observed the usual signs of intoxication and administered the breathalyzer and field sobriety tests with predictably bad results for Gustafson.

The court sustained Gustafson's motion to suppress premised on State v. Reisetter, 747 N.W.2d 792 (Iowa Ct. App. 2008), which holds that in order to form the reasonable suspicion to stop for a violation of 321.288 the officer must be within fifty feet of the vehicle more or less or an approximate equivalent thereto. The state appealed.

The court overruled the district court, holding that the trooper's observations approximated a distance of fifty feet more or less, thus complying with the benchmark established in Reisetter.

The takehome? Be able to establish your distances and observations before lighting the vehicle up.

A similar case is presented in State v. Knapp, no. 08-1918 (Iowa Ct. App. Dec. 17, 2009). A routine vehicle stop for an unilluminated license plate under Iowa Code section 321.288 led to the discovery that Knapp's license was suspended. He was arrested and the vehicle was searched, the search uncovering crushed pseudoephedrine, other materials for manufacturing methamphetamine and a small amount of methamphetamine. Knapp was convicted of possession, conspiracy to manufacture, and possession of a precursor with the intent to manufacture.

Knapp moved to suppress the results of the vehicle search, alleging it was undertaken without reasonable cause. The court overruled his motion and Knapp was convicted. Relying in Reisetter, supra, Knapp argued that the officer did not have reasonable cause to stopp his vehicle. The court of appeals disagreed, finding that when the officer actually initiated a stop he was but nine feet behind the vehicle.

State v. Johnson, no. 08-0320 (Iowa Ct. App. Dec. 17, 2009)

This is another Guthrie County case.

Johnson had a few beers and decided to go after his estranged wife. Retrieving a pistol, he drove to her home, shot a male friend, and then proceeded to shoot his estranged wife. After these events he returned to the fallen male friend and made damn sure he was dead by a series of crushing blows to the head, and then administered the same to his estranged wife. He was identified personally by his daughter at the scene.

Johnson made admissions to his daughter, sister in law and brother which led to turning himself in at the sheriff's office. Deputy Long read the Miranda warning and jailed him.

DCI agent Mortvedt interviewed him twice during which Johnson again implicated himself. Johnson was convicted after a jury trial and appealed, alleging ineffective assistance of counsel in that the attorney failed to move to suppress his statements to police and to object to their introduction at trial.

There were two interviews at the jail by Special Agent Mortvedt in which Johnson read the Miranda warning aloud, and made an equivocal statement "Do you think I need a lawyer?" Then, without prompting, Johnson resumed the conversation without further questioning and subsequently confessed to the killings.

The Court of Appeals found that Johnson had failed to show breach of an essential duty by his trial attorney such that he could establish prejudice, a reasonable probability that but for counsel's failure the results would have been different. The conviction was affirmed on the basis that loose lips can, in fact, sink ships.

In State v. Jones, no. 08-1917 (Iowa Ct. App. Dec. 19, 2009) the defendant was observed not wearing his seatbelt and stopped the vehicle. Jones buckled up for safety, he was spoken to, and released.

However there was more going on. Contemporaneously, a storefront check cashing parlor had been robbed at gunpoint and a good description had been obtained of the suspect and his vehicle. A plainclothes officer had located the vehicle-which was Jones'- and asked a uniform officer to stop the suspect vehicle. Once the driver was identified, his photo was placed in a photo lienup and Jones was identified by a store employee. A warrant was obtained, Jones' home was searched, and a 9 mm pistol and papers evidencing Jones' residence in a safe in the home.

Jones moved to suppress the vehicle stop, but that effort failed, because Officer Crozier stopped Jones for a seatbelt violation but also because he had knowledge that the car and driver may have been involved in an armed robbery.

There was a reasonable basis for the stop, which did not result in an arrest or a citation. It could have worked out differently but for the seatbelt violation which supplied all the reasonable cause anyone needed.