Parole and Consent Searches in Iowa

      The Iowa Supreme Court recently handed down a 116 page opinion (including concurrence and dissent) in State v. Baldon, addressing whether a parole agreement which contains a provision requiring the parolee to agree and consent to searches of him and his property at anytime constituted valid consent to search under Article 1, Section 8 of the Iowa Constitution.  In the lengthy but logical and well reasoned opinion, the Court found that such an agreement cannot be voluntary under Article 1, Section 8 of the Iowa Constitution to create a valid exception to the warrant requirement.   In reaching this conclusion the Court went through an extremely thorough analysis of the history of the Fourth Amendment of the United States Constitution and the cases addressing consent in that regard, as well as the historical underpinnings of Article 1, Section 8 and the cases addressing that constitutional provision.  The Court then ultimately decided that the parole agreements were to coercive in nature and therefore could not be used to excuse the warrant requirements of Article 1, Section 8 of the Iowa Constitution.
      In this authors opinion, the most interesting part of this opinion was the concurrence authored by Justice Apple wherein he reviews at depth the right, power, and duty of the Iowa Supreme Court to apply their own interpretation of the Iowa Constitution and depart from the holdings of the United States Supreme Court.  Justice Apple's position as it relates to interpreting the Iowa Constitution is best summarized when he stated "the notion that member of the United States Supreme Court have some kind of superior wisdom that we must show deference to when interpreting provisions of the Iowa Constitution is doubtful at best." After reading this concurrence, one becomes hard pressed to argue that this is not the correct decision.
      The Iowa Supreme Court needs to be applauded for this well thought out, researched, and reasoned opinion.  This opinion is so well written and contains so much history surrounding State and Federal Constitutions that it should be required reading for all attorneys, law students, and citizens of Iowa.  To read the full opinion click here.

Judicial Retention – The Only Bad Vote is an Uninformed Vote

With just over three months left until November’s general elections, the debate over retention of Iowa Supreme Court Justices is heating back up.  This year, four Justices are up for retention, but only one is being targeted in the retention vote: Justice David Wiggins

On August 1, 2012, Republican Party of Iowa Chairman A.J. Spiker issued a press release urging Iowa voters to vote “no” on the retention of Justice Wiggins.  Spiker’s press release alleged that Justice Wiggins and his fellow Justices in 2009 “disregarded years of legal precedent on the status of marriage and how it was to be defined.”  Spiker continued: “Instead of allowing the people of Iowa to decide this issue at the polls, these judges instead chose to impose their will upon the state and re-write history without weighing the merits of our laws and values.”  Current Justices Waterman, Mansfield and Zager are not drawing the fire of Mr. Spiker as they replaced unseated Justices Streit, Ternus and Baker in 2011.

While not specifically mentioned in his press release, Spiker’s campaign against the retention of Justice Wiggins clearly centers around the 2009 Iowa Supreme Court’s landmark decision in Varnum v. Brien.  The “Twitter” version of the ruling is that the equal protection clause of the Iowa Constitution prohibited the enforcement of a law that granted a privilege or right (civil marriage) to one group of citizens (opposite-sex partners) while specifically making it unavailable to another group of citizens (same-sex partners).  For a more thorough explanation of please see our prior article.

The Varnum decision has polarized many within the community.  While there are a number of positions and arguments that have arisen throughout this intense debate, the spotlight is now squarely focused on the retention of Justice Wiggins.  This article does not seek to take any particular position on same-sex marriage.  The purpose of this article is to explain the court system, the process by which the judiciary renders decisions and the role that Iowa citizens play in judicial retention.  An individual’s vote is personal based upon their beliefs and convictions but should also be informed because the only bad vote is an uninformed vote.

Role of Iowa Courts

The government of the State of Iowa, just like that of the United States of America is divided into three separate branches, each one having a distinct and vital role.  This is commonly referred to as “separation of powers.”  The purpose behind the separation of powers is to ensure that one branch of government does not overreach and ultimately violate the rights of the citizens of the state.  The three branches are: legislative, executive and judicial.  The legislative branch creates the laws; the executive branch enforces the laws; and the judicial branch is charged with the task of interpreting the laws.  When interpreting the laws, the judicial branch is governed by the rule that the constitution is the supreme law of the land and no law may be passed that infringes upon the individual rights set forth in the Constitution.  Any law which is inconsistent or contrary to the Iowa Constitution is considered void and unenforceable. 

All members of the judicial branch are charged with interpreting the laws and ultimately protecting the constitutional rights of all individuals in our state.  Conflicts in opinions and interpretations of the laws and constitution are resolved in a court of law, presided over by members of the judicial branch.  There is no other place for these issues to be legally resolved once and for all.  The issue or conflict must be raised at the earliest possible opportunity, and the first judge to hear the issue must rule and decide the case by applying the legal principles and precedent available to that judge at that time.  This means that the issues which often times ignite debate must always be first presented to a lower level judge, be it a magistrate, district associate judge or district court judge.  That judge, when presented with the conflict has a legal obligation to make a final ruling on the issue so that if desired, the losing party may appeal that decision to a higher court.  If the judge does not make a decision, the judge actually violates his/her constitutional role and our judicial system fails. 

Example:  The general assembly (legislative branch) passes a law saying that it was illegal to practice or to be a member of a particular religion.  A person affected by this law could raise the issue in court and request a judge to rule that the law violates freedom of religion as protected by Article 1 Section 3 of the Iowa Constitution.  The first judge to hear the case would have to make a ruling and the losing party would then have the right to appeal it to a higher court.  Ultimately the case would come before the Iowa Supreme Court who would then be required to decide the issue, one way or the other.  Their ruling would be final if the case involved an interpretation of the Iowa Constitution.  The perfect example of this is the Iowa Supreme Court’s 2012 decision in Mitchell County v. Zimmerman where the Iowa Supreme Court concluded that a Mitchell County Ordinance unconstitutionally interfered with the Mennonite communities’ free exercise of religion and was therefore unenforceable.

“Let the People Vote”

A popular complaint accompanying the Iowa Supreme Court’s decision in Varnum is that the Iowa Supreme Court should have let the people of Iowa vote on the issue.  In fact, Mr. Spiker appears to be of that opinion when he states in his press release: “Instead of allowing the people of Iowa to decide this issue at the polls, these judges instead chose to impose their will upon the state and re-write history without weighing the merits of our laws and values.”

It is imperative to understand that once a controversy is presented to a judge or appellate court such as the Iowa Supreme Court, the Court must resolve the conflict and enter a decision one way or another.  Contrary to the suggestion of Mr. Spiker, there is no mechanism for a judge or the Iowa Supreme Court to let the issue be “decided at the polls.” 

For the same-sex marriage issue to be “decided at the polls,” a constitutional amendment would have to be drafted, approved and then presented to the people of Iowa for a popular vote.  According to Article 10 of the Iowa Constitution, this process is controlled by the legislative branch: (Without Iowa the House and Senate approval, no constitutional amendment can even be presented to the public for a popular vote.  For a great explanation of this process, review the Des Moines Register article by Jason Clayworth.)  A court does not have the constitutional authority to submit a constitutional amendment nor is it involved in the process.  To say that the Iowa Supreme Court should have let the people decide this issue through a popular vote is to suggest that the Iowa Supreme Court exceed its constitutionally permitted authority.

Politics and the Courts

While some politicians are characterizing the Iowa Supreme Court’s decisions as political issues, politics and the courts must be kept separate for our system of government to be effective.  Our judicial branch is set up with the specific goal of minimizing political influence on judges.  Back in 1857, the people of the State of Iowa created and approved our system of government, including our judicial appointment and retention system, because they experience first-hand what happens when politics invade the judiciary.

Members of the judicial branch in the State of Iowa are not elected, but instead are appointed by the executive branch after being recommended by a selection committee.  When a position is open, a nonpartisan commission reviews the qualifications of applicants for the vacancy, conducts thorough background checks, interviews candidates and ultimately makes a recommendation to the governor.  The governor, the head of the executive department, makes the final decision appoints the new judge.  The judge then serves out his or her term on the bench and is subject to a “retention” vote at the end of the term.  The judge must receive a majority of the popular vote to be retained (“yes”) in order to serve another term.

The reasoning behind appointment of judges as opposed to popular elections is to prevent “popular opinion” (prevailing opinion of the majority) from determining the outcome of judicial decisions.  Popular opinion many times can lead to a mob mentality where governmental action is taken without due consideration being given to the individual constitutional rights that are being affected.  Members of the legislative branch are popularly elected.  It is a legislators’ job to listen to the pulse of the community opinion over all else.  Judges on the other hand, must not listen to community opinion but must respect and abide by prior legal decisions, constitutional principles and most importantly, the articulated individual rights set forth in the Constitution.  The law must dictate their decision, not popular opinion or even their own individual beliefs.  It is the judiciary’s role to protect citizens from laws or governmental action that might be popular at the time, but nonetheless violate constitutional principles of this state.

Example:  The community becomes outraged at the recent number of shootings and the legislature voted to prohibit anyone within the city limits of major Iowa cities from owning or possessing hand guns.  The legislative branch would be listening to the popular opinion but obviously those responsible citizens that owned hand guns would not agree with the law.  When presented with the case, the Iowa Supreme Court would have to disregard popular opinion and even their own individual beliefs and would have to strike down the law because it violates the Second Amendment right to bear arms.

The judicial branch must remain free from outside influences to ensure that decisions are based upon the law and the constitution without regard for public approval or popular opinion.  One does not need to look far in history to see how following popular opinion violated constitutional rights bestowed upon all citizens.  Listening to popular opinion, our country enslaved millions, prohibited women from voting, withheld fundamental basic human rights and privileges simply because of the color of a person’s skin, and even detained thousands of U.S. citizens only on account of their ethnicity during a time of war.  Many, if not all of these actions were initially sanctioned by the Courts of the day only to be determined to have been incorrect years later.  This is why an independent judiciary must remain free from influence by popular opinion so that the correct legal decisions can be made at the earliest possible opportunity to remedy and prevent violations of individual constitutional rights.

Conclusion

In conclusion, the Iowa Supreme Court was presented with a very specific dispute over individual constitutional rights in the context of same-sex marriage.  There are strong opinions on both sides of the subject, all with legitimate points and arguments.  However, the bottom line is that the courts in Iowa were required to resolve the legal conflict before them, not a political dispute.  It is understandable that many may be dissatisfied with the decision but it was the Iowa Supreme Court Justice’s duty to resolve the conflict based on the Constitution of the State of Iowa. 

When you go to vote this November, cast your vote according to your own personal beliefs and interests.  However, when it comes to the retention of judges, please make sure that you cast your vote after becoming informed to the fullest extent possible.  A valuable resource is the Iowa Bar Association Judicial Plebesite Report which contains feedback from attorneys who appear before the respective judges.  Also, don’t hesitate to ask those who may have more experience with Iowa’s judicial system to give you their thoughts on the various judges that are up for retention. 

Remember, a vote for or against retention of a judge is not a vote for or against same-sex marriage or any other decision by the court.  Rather, it is a vote to keep or replace a judge based upon his or her overall performance.  If the same-sex marriage decision is important to your vote, I would encourage you to take the time to read the full decision which can be found by clicking this link, Varnum v. Brien.  If you feel you should have been allowed to vote on the issue, I would strongly encourage you to contact your representatives in the Iowa House and Senate and let them known your opinion.  Remember, they are elected to serve you but judges are appointed to interpret and enforce the Constitution.  This election, vote your conscience, but vote informed.  The only bad vote is an uninformed vote.

By: Robert G. Rehkemper, Attorney at Law, Gourley, Rehkemper & Lindholm, PLC, Des Moines, Iowa.  www.GRLLAW.com

Destruction of Evidence and the Right to Present a Complete Defense

When the State of other governmental agency either intentionally or passively permits evidence to be destroyed, a criminal defendants constitutional right to due process and a fair trial is implicated. There are really two fundamental constitutional rights that are implicated when the government destroys evidence in a criminal prosecution. The first, is what is referred to as the defendant's constitutionally protected right access evidence that will be used against him/her during the trial. This is far and away the most popular and well-known argument advanced by a defendant when evidence is destroyed. Many times it is referred to as a Brady violation referring to the United States Supreme Court's ruling in Brady v. Maryland where the Court ruled that a defendant in a criminal case has the constitutional right to request and receive evidence that is either material to guilt or to punishment. The difficulty with this allegation is that a defendant is often times required to prove that the evidence would have been exculpatory or was destroyed in bad faith which has become increasingly more difficult to do.

The second, less commonly argued constitutional right implicated when evidence is destroyed is the defendant's overarching right to a fair trial. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment . . . . the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense. . . . ’" Crane v. Kentucky, 476 U.S. 683, 690 (1986). This right encompasses many "subrights," for lack of a better word, that are all integral in the defendant exercising his/her constitutional right to present a defense. As it stands today, a criminal defendant’s right to the presentation of a complete defense involves: (1) A right to present evidence on her own behalf. Washington v. Texas, 388 U.S. 14, 17-19 (1967); (2) A right to physically inspect and know the physical characteristics of real evidence the state expects to use against her. State v. Eads, 166 N.W.2d at 773; (3) A right to subject the State’s physical evidence to scientific testing. Id.; (4) A right to the services of an expert witness that may assist in evaluating and rebutting the expert analysis of physical evidence and testimony of the State’s witnesses. Van Scoyoc, 511 N.W.2d at 630; see also Eads, 166 N.W.2d at 773 (“Failure to afford defendant a reasonable pre-trial opportunity to meet such evidence by a cross-examination based on adequate factual background, by producing his own experts, or by some other means, results indeed in what has been called ‘trial from ambush.’”); (5) A right to examine witnesses against her by cross examination, to test the witness’ recollection, to probe into the details of his testimony, or to “sift” his conscience, all of which are designed to protect the “integrity of the fact finding process.” Chambers v. Mississippi, 410 U.S. at 295; (6) A right to have compulsory process for obtaining witnesses and evidence in her favor. Washington v. Texas, 388 U.S. 14 (1967); and (7) A right to effective representation of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

When crucial evidence is destroyed by the State of government in a criminal prosecution, each and every one of these rights comprising the overarching right to defend oneself is implicated. Take for example, the State's destruction of blood in a vehicular homicide case where the defendant's blood alcohol concentration is at issue. If the blood is destroyed before the defense has an opportunity to inspect and subject the test to independent analysis' each and every one of the six "subrights" associated with presenting a complete defense are implicated. Specifically, the defendant is prevented from gathering information regarding the type of blood test kit and sample collection vials used to withdraw the blood, the expiration dates documented on the test kit and sample collection vials, and that evidence which would have been obtained through independent scientific testing of the blood. The evidence is gone forever and cannot be produced let alone evaluated or re-valuated in any way, shape or form. It cannot be determined whether defendant's name was the name on the sample vial from which the test result was obtained; it cannot be determined whether or not the blood tested was the defendant's; it cannot be determined whether bacteria had contaminated the blood sample creating an artificially inflated test result; it cannot be determined whether the sample vials had exceeded their expiration date; it cannot be determined whether the alcohol concentration was indeed what the State claims it was. The destruction of the evidence also precludes the defendant from exercising the right to subject the State’s physical evidence to scientific testing. Ordinarily a criminal defendant would have had an opportunity to study the evidence and employ its own experts to test it and to rebut the findings of the State’s expert witnesses. See State v. Fitz, 265 N.W.2d 896, 906 (Iowa 1978). Likewise, defendant’s right to the services of an expert witness that may assist in evaluating and rebutting the expert analysis of physical evidence and testimony of the State’s witness’ is inhibited. While the defendant can of course call an expert witness at trial, that witnesses testimony is of little, if any value, if he is unable to conduct an independent evaluation of the State’s raw evidence and data that form the very basis of the State’s witnesses that he is rebutting. The Iowa Supreme Court has recognized that an independent analysis of the State’s evidence by an expert may well result in a conclusion diametrically opposed to that reached by the State’s experts. State v. Hancock, 164 N.W.2d 330, 333 (Iowa 1969). As noted by the Illinois Supreme Court, “[a] primary strategy available to the defense is to raise reasonable doubt concerning the accuracy of the tests. Without an independent test, a defendant will not be able to contest whether the results of the State’s test were accurate.” People v. Newberry, 638 N.E.2d 1196, 1200-1201 (Ill. App. 2nd Dist. 1994).
A defendant’s right to cross-examine witnesses against him/her also suffers irreparable harm as a result of the State’s destruction of evidence. “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. at 316. “[T]he cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” Id. The primary manner in which defense counsel accomplishes an effective cross-examination of an adversarial expert witness is not necessarily by attacking the conclusion head-on but rather inquiring into the facts and underlying observations, assumptions, interpretations and conclusions formed as a result of the experts review of the raw data and physical evidence. That obviously cannot be accomplished when the defendant cannot make his/her own observations, assumptions, interpretations and conclusions from an independent review and analysis of the relevant evidence. Finally, all of the aforementioned obstacles to a defendant's exercise of constitutional rights inherent in a fair trial also have an adverse impact on the defendant's constitutional right to effective assistance of counsel. “[A] lawyer is of little help if he has none of the trial tools with which to work. He cannot adequately defend if he is denied access to facts.” Eads, 166 N.W.2d at 771.

Demanding dismissal of the charges or at the very least suppression of the State's use of the evidence that was destroyed under the "complete defense" theory is must more straight forward and in turn effective, then attempting to wade through the Brady violation quagmire. While a defense attorney must of course raise any and all issues that arise out of a destruction of evidence issue, it is much easier to explain and demonstrate why a defendant is irreparably prejudiced as a result of the evidence destruction under this theory as opposed to the Brady theory. It doesn't take a rocket scientist to realize that it would be fundamentally unfair for the prosecution to be able to take advantage of the destroyed evidence when the defendant would have no way to counter or defend against it. This is the precise argument that was successfully made by the attorneys at GRLLaw in the Polk County District Court case of State v. Andrea LaForge. (http://www.grllaw.com/CM/Custom/Legal-News.asp) In Ms. LaForge's case, she requested that her blood samples be preserved eight days after it was withdrawn. She did this by and through her attorney who sent the request to the law enforcement agencies via certified mail. A copy was sent to the Polk County Attorney's Office. Some 5 1/2 months after the request to preserve the evidence was made, the State of Iowa destroyed the blood samples and the blood collection kits that they were submitted in. Six days after the blood was destroyed but 5 1/2 months after the request to preserve evidence was made, the State then filed the charge of Vehicular Homicide against Ms. LaForge. After a day long hearing, Judge Nickerson granted defendant's Motion to Dismiss based upon the irreparable harm done to Ms. LaForge's right to defend herself at trial. The case was quickly appealed by the State and the Iowa Supreme Court will have the final say on this matter in the years to come. While there are no specific cases in existence in the State of Iowa in which this precise argument was made, the attorneys at GRL Law are hopefully optimistic that based on these specific facts, this argument will stand on appeal.

Lazy Officer Exception to the Warrant Requirement?

The Iowa Supreme Court recently created what some may call the "Lazy Officer Exception" to the search warrant requirements of the Fourth Amendment of the United States Constitution and Article 1, Section 8, of the Iowa Constitution. In the State of Iowa v. Christopher Leon Christopher, filed September 12, 2008, the Iowa Supreme Court determined that officer Butler from the Des Moines Police Department was justified in arresting Mr. Christopher without a warrant for the offense of driving while barred he witnessed Mr. Christopher commit some five weeks prior. Officer Butler witnessed Mr. Christopher driving while he was off duty believing him to have a barred driver's license and took no measures to stop him at that time for the violation. Officer Butler confirmed that Mr. Christopher was barred the next day while he was on duty and then saw Mr. Christopher five weeks later and decided to arrest him without a warrant for the offense of driving while barred. Following Mr. Christopher's arrest, he was searched and drugs were discovered.

Prior to trial, Mr. Christopher moved to exclude the use of the drugs at trial arguing that his arrest violated the Due Process Clause and the Fourth Amendment of the United States Constitution as well as the Iowa Constitution. Mr. Christopher argued that the warrantless arrest was not lawful because it was not done within a reasonable time following the commission of the crime.

The Iowa Supreme Court upheld the arrest concluding that a reasonable time requirement between the time the officer observed he offense and the warrantless arrest is not "necessary to protect the rights of the accused."

From a defense perspective, this poses a problem since officers are now allowed to apparently make a warrantless arrest at any time following the commission of a crime that they witnessed so long as it is within the statute of limitations and are free to conduct a warrantless "search incident to that arrest" of the person following the arrest. Some would argue that officers now can be an ostrich with their head in the sand for a crime that they witness until they believe that a person may have evidence of other crimes on their person in order to hurdle the confines of the Fourth Amendment protections against unreasonable searches and seizures.

The Iowa Supreme Court seemed to somewhat address this concern in the decision by cautioning that if the Police delay an arrest to gain a tactical advantage over the an accused, there may be a due process violation.

Get Out of Jail Free Days

A few fun facts on the lighter side for once.

A brief perusing of the Iowa Constitution reveals that our State has get out of jail free days plainly stated in the text of our Constitution.

Article 2 Section 2 of the Iowa Constitution states: "Electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest on the days of election, during their attendance of such election, going to and returning therefrom." "Elector" means person who may vote.

Article 3 Section 11 states: "Senators and Representatives, in all cases, except treason, felony, or breach of peace, shall be privileged from arrest during the session of the general assembly and going to and returning from the same."

The purpose of these constitutional provisions should be fairly clear, to avoid undue and unwarranted harassment against the general voting public on election day and against members of the House and Senate while they are in session. It is a constitutional assurance that our political process will go on uninterrupted but for the commission of most serious crimes. However, it would be an interesting situation if an individual were arrested for a misdemeanor such as Possession of Marijuana or other controlled substance or operating while intoxicated either on the way to or from voting. According to the Constitution, the arrest would be illegal. Taking it one step further, a citation has been equated to an arrest by the Iowa Supreme Court in certain circumstances, thus an argument could be made that we cannot be given speeding tickets in our rush to vote or return from voting nor can members of the House of Senate receive citations on the way to or from general assembly sessions.