CRIMINAL LAW NEWSLETTER - Drake University Law School

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     Drake Legal Clinic Criminal Defense Program

                      2009 – 2010

                Drake University Law School



g            he Criminal Law Newsletter is a concise compilation of cases and
             legislative developments affecting the Iowa criminal law practitioner. As
             with past editions, the 2009 – 2010 Edition focuses exclusively on criminal
             law and procedure, Iowa criminal law legislation, and Iowa professional
             conduct decisions. The Newsletter is comprised of fourteen sections.
Within each section, United States Supreme Court decisions precede Iowa Supreme
Court decisions. Each case is categorized by its salient issue. Cases decided between
July 1, 2009 and June 30, 2010 are covered.

       The Newsletter is a user-friendly resource that makes the issues and holdings of
recent case law readily apparent to the reader. The issue and holding of each case are
set forth at the outset of each case summary. The facts are then briefly summarized.
Each summary concludes with an examination of the court’s reasoning and/or analysis.
Thus, the busy practitioner, professor, or law student simply needs to glance at one or
two sentences to see precisely how a given case advances an area of the law. Then, if the
reader desires, he or she can continue reading to learn about the specific facts,
procedural posture, and analysis of a case.

       We wish to thank to Professor Robert Rigg, Director of the Drake Legal Clinic, for
making this project possible. We also wish to give a special thanks to Ricardo Cordova,
Scott Wadding, and Mara Deaton for their gracious assistance.

       Current and past editions of the newsletter are available in PDF format at the
following address:

      We hope you enjoy the 2009 – 2010 Edition of the Criminal Law Newsletter.

                                                              BRIAN T. DAMMAN

                                                              NICHOLAS W. ERICKSON


                                                   TABLE OF CONTENTS

I.      SECOND AMENDMENT ................................................................................................................ 1
II.     FOURTH AMENDMENT ................................................................................................................ 4
III.    FIFTH AMENDMENT ................................................................................................................... 8
IV.     SIXTH AMENDMENT ................................................................................................................. 15
          A.     Right to Counsel ........................................................................................................... 15
          B.     Right to Public Trial ..................................................................................................... 24
V.      EIGHTH AMENDMENT .............................................................................................................. 26
VI.     FOURTEENTH AMENDMENT ..................................................................................................... 30
VII. EX POST FACTO CLAUSE ........................................................................................................... 33
VIII. HABEAS CORPUS ...................................................................................................................... 38
IX.     EVIDENTIARY ISSUES ................................................................................................................ 42
X.      STATUTORY CONSTRUCTION ..................................................................................................... 47
XI.     JURY INSTRUCTIONS.................................................................................................................60
XII. SENTENCING ............................................................................................................................ 69
XIII. PROFESSIONAL CONDUCT ......................................................................................................... 73
XIV. LEGISLATIVE ACTION................................................................................................................ 86
XIV. TABLE OF CASES ....................................................................................................................... 91


                                               Criminal Law Newsletter (2009 – 2010 ed.)

I.            SECOND AMENDMENT                                          public, the petitioners claimed the ban
                                                                        left residents vulnerable to criminals.7
McDonald v. City of Chicago,                                            For instance, at the time of the trial,
Illinois, 130 S. Ct. 3020 (2010)                                        McDonald was involved with alternative
                                                                        policing strategies, which subjected him
        At issue in McDonald was                                        to drug dealers’ violent threats, while
whether the Second Amendment applies                                    another petitioner’s home had been
to the states by incorporation through                                  targeted by burglars.8
the Due Process Clause of the
Fourteenth Amendment.1 The Supreme                                             The Chicago Municipal Code was
Court held the Fourteenth Amendment                                     challenged by the petitioners living in
incorporates the Second Amendment                                       Chicago, the state rifle association, and a
right to keep and bear arms for the                                     Second Amendment organization.9 Oak
purpose of self-defense, therefore                                      Park’s Municipal Code was contested by
making the Second Amendment fully                                       the NRA and two Oak Park residents.10
applicable to the states.2                                              The NRA and other citizens also
                                                                        challenged the Chicago Municipal Code,
         Petitioners were four Chicago                                  and the three actions were heard by the
residents who wished to store handguns                                  same district judge, who held the
in their residences for self-defense;                                   ordinances to be constitutional.11 The
however, Chicago’s firearm laws                                         Seventh Circuit affirmed the district
prohibited them from doing so.3 A                                       court’s decision, finding three
provision of the Chicago Municipal Code                                 nineteenth century cases doomed the
provided “‘[n]o person shall . . . possess .                            petitioners’ petition.12
. . any firearm unless such person is the
holder of a valid registration certificate                                      The Supreme Court addressed
for such firearm.’”4 In addition, the                                   whether the right to keep and bear arms
Code prohibited registering most                                        existed as a privilege or immunity of
handguns, effectively barring handgun                                   United States citizens—which would
possession by nearly all private citizens                               reject the narrow interpretation of the
residing in the City.5 Oak Park, Illinois,                              Slaughter–House Cases—and,
had a similar provision, which made “it                                 alternatively, whether the Due Process
‘unlawful for any person to possess . . .                               Clause of the Fourteenth Amendment
any firearm,’” with firearm defined as                                  incorporated the Second Amendment
“‘pistols, revolvers, guns and small arms                               right.13
. . . commonly known as handguns.’”6
While the Cities argued the laws were in
place to deter crime and harm to the                                                                                                
                                                                        7 Id.
                                                                        8 Id. at 3026–27 (citations omitted).
1 McDonald v. City of Chi., Ill., 130 S. Ct. 3020,                      9 Id. at 3027.

3028 (2010).                                                            10 Id.
2 Id. at 3050.                                                          11 Id.
3 Id. at 3026.                                                          12 Id. The court relied on United States v.
4 Id. (quoting CHI., ILL., MUNICIPAL CODE § 8–                          Cruikshank, 92 U.S. 542 (1876); Presser v.
20–040(a) (2009)).                                                      Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153
5 Id. (citing § 8–20–050(c)).                                           U.S. 535 (1894).
6 Id. (quoting OAK PARK, ILL., MUNICIPAL CODE §§                        13 Id. at 3028 (citing Slaughter–House Cases, 83

27–2–1 (2007), 27–1–1 (2009)).                                          U.S. (16 Wall.) 36 (1873)).

                                                               ~ Second Amendment ~

       With regard to the privilege or                                               The three cases used by the
immunity issue, the Court recounted its                                      Seventh Circuit to affirm the district
analysis of the relationship between the                                     court’s decision did not preclude the
states and the provisions of the Bill of                                     Supreme Court from addressing
Rights.14 Originally, the Bill of Rights,                                    whether the Second Amendment is
applied only to the federal government;                                      binding on the states by way of the
however, that changed when Section 1 of                                      Fourteenth Amendment.19 The Court
the Fourteenth Amendment was                                                 traced the history of incorporation of the
adopted.15 That Section provided a state                                     Bill of Rights to the states, noting
could not curtail “‘the privileges or                                        Duncan v. Louisiana incorporated a
immunities of citizens of the United                                         majority of these rights, excluding,
States’ or deprive ‘any person of life,                                      among others, the right to bear arms.20
liberty, or property, without due process                                    The subsequent Malloy v. Hogan
of law.’”16 The Slaughter–House Cases                                        decision further overruled earlier cases
held the Privileges or Immunities Clause                                     that held other guarantees of the Bill of
should be narrowly interpreted, drawing                                      Rights did not apply to the states.21
a sharp distinction between the rights of
federal and state citizenship.17 Although                                           The primary inquiry to determine
there is debate over the interpretation of                                   whether the Second Amendment can be
the Slaughter–House Cases, the Court                                         incorporated in the concept of due
declined the opportunity to reconsider                                       process is “whether the right to keep and
the case at this time.18                                                     bear arms is fundamental to our scheme
                                                                             of ordered liberty,”22 or, in other words,
                                                                             whether the “right is ‘deeply rooted in
14 Id. at 3028–36.                                                           this Nation’s history and tradition.’”23
15 Id. at 3028.
16 Id. (quoting U.S. CONST. art. XIV, § 1).
17 See id. This narrow reading protected the
                                                                                     Using District of Columbia v.
following as rights:
                                                                             Heller as guidance, the Court noted
                                                                             “[s]elf-defense is a basic right”; in fact, it
              [T]o come to the seat of                                       is “‘the central component’ of the
              government to assert any claim                                 Second Amendment right.”24 The Court
              [a citizen] may have upon that                                 reinforced many of the findings of
              government, to transact any
              business he may have with it, to
                                                                             Heller, including Heller’s holding such a
              seek its protection, to share its                              “right is ‘deeply rooted in this Nation’s
              offices,     to    engage      in                              history and tradition,’” and the Court
              administering its functions . . .                              traced over the rich history of gun rights
              [and to] become a citizen of any                               and the Second Amendment in America,
              State of the Union by a bonafide
              residence therein, with the same
              rights as other citizens of that                                                                                           
              State.                                                         19 Id. at 3031.
                                                                             20 Id. at 3031–36 (citing Duncan v. Louisiana,
Id. at 3029 (quoting Slaughter–House Cases, 83                               391 U.S. 145 (1968)).
U.S. (16 Wall.) at 79–80).                                                   21 Id. at 3035 (citing Malloy v. Hogan, 378 U.S. 1,
18 Id. at 3030. The Court noted for decades the                              10–11 (1964)).
question of whether a right is protected from                                22 Id. at 3036 (citing Duncan, 391 U.S. at 149).

state infringement by the Fourteenth                                         23 Id. (quoting Washington v. Glucksberg, 521

Amendment has been examined under that                                       U.S. 702, 721 (1997)).
Amendment’s Due Process Clause and not its                                   24 Id. (quoting District of Columbia v. Heller, 128

Privileges or Immunities Clause. Id. at 3030–31.                             S. Ct. 2783, 2801–02 (2008)).

                                               Criminal Law Newsletter (2009 – 2010 ed.)

including its intertwinement with civil
rights movements.25

The Court noted, pursuant to stare
decisis, the Heller holding “that the
Second Amendment protects the right to
possess a handgun in the home for the
purpose of self-defense” applied equally
as a provision of the Bill of Rights to
both the federal government and the
states.26 The Fourteenth Amendment’s
Due Process Clause therefore
“incorporates the Second Amendment
right recognized in Heller.”27 The case
was reversed and remanded for further

25 Id. at 3036–42 (quoting Glucksberg, 521 U.S.

at 721). However, the Court thought it
important to note Heller holds “the right to keep
and bear arms is not ‘a right to keep and carry
any weapon whatsoever in any manner
whatsoever and for whatever purpose.’” Id. at
3047 (quoting Heller, 128 S. Ct. at 2816).
26 Id. at 3050.
27 Id.
28 Id.

                                                               ~ Fourth Amendment ~

II.           FOURTH AMENDMENT                                               statement noting he read and
                                                                             understood the policy.7
City of Ontario, California v. Quon,
130 S. Ct. 2619 (2010)                                                               Soon after the pagers were
                                                                             handed out, Quon exceeded his monthly
       The issue in Quon was whether                                         character allotment.8 Quon was told by
the privacy of text messages sent by a                                       a supervisor he would not be audited for
city employee on a city-owned-and-                                           the overage that month if he paid the
issued pager was protected by the                                            additional fee himself.9 Quon agreed
Fourth Amendment’s “ban on                                                   and subsequently continued to exceed
‘unreasonable searches and seizures.’”1                                      his allotment for several months, paying
The Supreme Court held the City “had a                                       the overage fee each time.10 Eventually,
legitimate reason for the search, and                                        another supervisor of Quon’s decided to
that the search was not excessively                                          investigate whether the overages were
intrusive in light of that justification”;                                   because the existing character allotment
thus, the City did not violate its                                           was too low or if the overages occurred
employee’s Fourth Amendment rights.2                                         due to personal message use.11 The City
                                                                             obtained the relevant pager transcripts
        Quon was employed by the City of                                     from its wireless provider and
Ontario as a police officer, and in 2001,                                    discovered the majority of the text
the City distributed pagers with text                                        messages sent and received by Quon
messaging capabilities to several                                            were not work related.12 The matter was
employees.3 Each pager was allocated a                                       sent to the department’s internal affairs
specific number of text characters that                                      division where another review was
could be sent or received per month                                          conducted.13 The officer who conducted
before an additional fee was imposed.4                                       this review compared the transcript to
The City announced a pager usage policy                                      Quon’s work schedule and looked solely
that gave the City authority to monitor                                      at the messages sent and received while
all activity related to the pagers and                                       Quon was on duty.14 The internal affairs
made clear users had no expectation of                                       division also concluded Quon had
privacy.5 While the policy did not                                           violated city rules and disciplined him.15
expressly cover text messages, the City
informed employees text messages                                                   Quon filed suit against the City
would be included in the material that                                       under various state and federal statutes
could be monitored and that employees                                        along with a claim his Fourth
had no expectation of privacy in regard                                      Amendment rights had been violated
to text messages.6 Quon signed a                                             when the City obtained and reviewed his
                                                                             text message transcript.16 The district
                                                                             7 Id.
                                                                             8 Id.
1 City of Ontario, Cal. v. Quon, 130 S. Ct. 2619,                            9 Id.

2624 (2010).                                                                 10 Id.
2 Id. at 2633 (citing O’Connor v. Ortega, 480                                11 Id. at 2626.

U.S. 709, 732 (1987)).                                                       12 Id.
3 Id. at 2624–25.                                                            13 Id.
4 Id. at 2625.                                                               14 Id.
5 Id. (citation omitted).                                                    15 Id.
6 See id.                                                                    16 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

court held “Quon had a reasonable                                       exceptions’ to” the general rule
expectation of privacy in the content of                                warrantless searches are unreasonable
his text messages,” but the City’s review                               under the Fourth Amendment.24 The
of the transcript was nonetheless                                       Court found the search here was
reasonable.17 The Ninth Circuit heard                                   reasonable under the approach
the appeal and reversed in part, finding                                articulated in O’Connor v. Ortega—it
the search “‘was not reasonable in                                      was “‘justified at its inception’ and . . .
scope’”—there were other, less intrusive                                ‘the measures adopted [were]
ways the City could have come to its                                    reasonably related to the objectives of
conclusion.18 The Supreme Court                                         the search . . . .’”25 The search was
granted certiorari, hearing only the                                    justified because it was conducted to see
Fourth Amendment claim.19                                               whether the City’s current contract
                                                                        allotted enough text message characters
       The Fourth Amendment                                             to meet its needs, and the measures
guarantees the privacy of persons                                       adopted were reasonable—reviewing the
against certain invasive acts by                                        transcripts “was an efficient and
government officers, regardless of                                      expedient way to determine whether
whether the officer is investigating a                                  Quon’s overages were the result of work-
crime or performing a different                                         related messaging or personal use.”26
function.20 An individual does not lose                                 Further, even if Quon could assume he
his or her Fourth Amendment rights                                      had some level of privacy, he could not
simply by working for the government                                    assume all his messages were immune
as opposed to a private employer.21                                     from scrutiny—he was told his messages
                                                                        could be audited.27
       The Court first addressed
whether Quon had an expectation of                                      Michigan v. Fisher, 130 S. Ct. 546
privacy in the content of his text                                      (2009)
messages.22 For argument’s sake, the
Court determined he had a reasonable                                           At issue in Fisher was whether a
expectation and review of the transcript                                police officer’s warrantless entry into a
by the City’s officers constituted a search                             defendant’s home qualified as an
as meant by the Fourth Amendment.23                                     “emergency aid exception” to the
However, the Court noted having “a                                      warrant requirement of the Fourth
reasonable expectation of privacy” did                                  Amendment when the officers witnessed
not necessarily mean the City violated                                  the defendant shouting and throwing
the Fourth Amendment in reviewing the                                   objects, and could see he had cut his
transcripts; “there are ‘a few specifically                             hand.28 The Court held the emergency
established and well-delineated                                         aid exception could be invoked based on
                                                                        the reasonable belief the defendant had
17 Id. at 2626–27.                                                      hurt himself and needed treatment or
18 Id. at 2627 (quoting Quon v. Arch Wireless
Operating Co., 529 F.3d 892, 908 (2008)).                                                                                           
19 Id.                                                                  24 Id. (quoting Katz v. United States, 389 U.S.
20 Id. (citing Skinner v. Ry. Labor Executives’                         347, 357 (1967)).
Ass’n, 489 U.S. 602, 613–14 (1989)).                                    25 Id. (quoting O’Connor, 480 U.S. at 725–26).
21 Id. at 2628 (citing O’Connor v. Ortega, 480                          26 Id.

U.S. 709, 717 (1987)).                                                  27 Id.
22 Id. at 2629.                                                         28 See Michigan v. Fisher, 130 S. Ct. 546, 547–49
23 Id. at 2630.                                                         (2009).

                                                               ~ Fourth Amendment ~

that he was about to—or already had—                                         weapon and possession of a firearm
hurt someone else.29                                                         during the commission of a felony.40
                                                                             The trial court concluded the Fourth
       Police officers were called to a                                      Amendment was violated when Officer
disturbance in Brownstown, Michigan.30                                       Goolsby entered Fisher's house and
As Officer Christopher Goolsby and his                                       granted the defendant’s motion to
partner came upon the area, they were                                        suppress Officer Goolsby’s statement
directed “to a residence where a man                                         that a rifle had been pointed at him by
was ‘going crazy.’”31 The officers found                                     Fisher.41 The Michigan Court of Appeals
“a pickup truck in the driveway with its                                     affirmed, and the Michigan Supreme
front smashed, damaged fenceposts                                            Court denied leave to appeal.42 The
along the side of the property, and three                                    United States Supreme Court granted
broken house windows, the glass still on                                     certiorari and reversed.43
the ground outside.”32 The officers
noticed blood on the pickup’s hood, on                                              The Court noted that while
clothes inside the pickup, and on one of                                     warrantless searches and seizures are
the house doors.33 The officers could see                                    presumptively unreasonable, the
Fisher screaming and throwing objects                                        presumption can be overcome in
inside the house.34                                                          different ways, the need to render
                                                                             emergency aid being one of them.44
       Fisher refused to answer the door                                     Officers “‘may enter a home without a
when the officers knocked.35 The                                             warrant to render emergency assistance
officers saw Fisher’s hand was cut and                                       to an injured occupant or to protect an
asked him if he needed medical                                               occupant from imminent injury.’”45
assistance.36 Fisher ignored their
questions and demanded the officers get                                              The Court then compared the
a search warrant.37 Officer Goolsby then                                     facts in Fisher’s case to those in
pushed his way through the front door                                        Brigham City.46 Similar to the facts in
and went into the house.38 He                                                Brigham City, the police officers in this
subsequently withdrew from the house                                         case were responding to a reported
upon seeing Fisher pointing a gun at                                         disturbance.47 Also, the officers in both
him.39                                                                       Brigham City and the present case
                                                                             encountered a tumultuous situation
      Under Michigan law, Fisher was                                         when they arrived at the house—
charged with assault with a dangerous                                        evidence of a recent injury.48
                                                                             Furthermore, the officers in both cases
                                                                             were able to see violent behavior inside
29 Id. at 549.
30Id.  at 547.
31 Id. (citing People v. Fisher, No. 276439, 2008                                                                                        
WL 786515, at *1 (Mich. Ct. App. Mar. 25,                                    40 Id.
2008)).                                                                      41 Id. at 547–48.
32 Id.                                                                       42 Id. at 548.
33 Id.                                                                       43 Id.
34 Id.                                                                       44 Id. (citations omitted).
35 Id.                                                                       45 Id. (quoting Brigham City v. Stuart, 547 U.S.
36 Id.                                                                       398, 403 (2006)).
37 Id.                                                                       46 Id. at 548–49.
38 Id.                                                                       47 Id. at 548.
39 Id.                                                                       48 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)     

the house.49 Although the officers in
Brigham City saw actual punches
thrown, the officers here did see the
defendant screaming and throwing
objects.50 The Court held it was
objectively reasonable for the officers to
believe Fisher’s projectiles might have
been directed at a human target or
Fisher would injure himself.51 In sum,
the Court concluded the warrantless
entry did not violate the Fourth
Amendment.52 The Court opined
“[o]fficers do not need ironclad proof of
‘a likely serious, life-threatening’ injury
to invoke the emergency aid

49 Id. at 548–49.
50 Id. at 549.
51 Id.
52 See id.
53 Id.

                                                               ~ Fifth Amendment ~

III. FIFTH AMENDMENT                                                         his Miranda rights, a portion of which
                                                                             the interrogators had him read aloud to
Berghuis v. Thompkins, 130 S. Ct.                                            ensure he could both read and
2250 (2010)                                                                  understand English.7 The rest of the
                                                                             form was read to him.8 During the
        The Court addressed two issues                                       interrogation, Thompkins remained
in Thompkins, the first of which dealt                                       “‘largely’” silent but never expressly said
with Miranda warnings.1 Specifically,                                        he wanted to remain silent.9 After two
the Court considered whether prolonged                                       hours and forty-five minutes of
silence before eventually answering an                                       interrogation, Thompkins answered
interrogator’s question constituted the                                      “Yes” when asked if he prayed for
invocation of the right to remain silent,                                    forgiveness for shooting one of the
whether Thompkins did in fact waive                                          victims.10 This statement was used by
this right, and whether an express                                           the prosecution at Thompkins’s trial.11
waiver was needed before police officers                                     At trial, the prosecution also argued
could question him.2 The second issue                                        Thompkins shot the victims while inside
was whether Thompkins’s counsel                                              a van driven by Erik Purifoy.12 Purifoy
provided ineffective assistance in failing                                   testified he had been convicted as an
to ask for a limiting instruction                                            accomplice in the shooting.13
regarding the jury’s consideration of an                                     Thompkins’s counsel did not seek a
accomplice’s conviction.3                                                    limiting instruction informing the jury it
                                                                             could only consider Purifoy’s conviction
        The Court held a suspect’s                                           “to assess Purifoy’s credibility, not to
invocation of his or her right to remain                                     establish Thompkins’s guilt.”14
silent must be “‘unambiguous,’” an                                           Thompkins was subsequently found
uncoerced statement is considered a                                          guilty and sentenced to life in prison.15
waiver of that right, and officers do not
need to obtain an express waiver prior to                                           Thompkins appealed to the state
questioning a suspect.4 In addition, the                                     appellate court, but his conviction was
Court determined it was unlikely a                                           ultimately upheld.16 However, after his
limiting instruction would have                                              petition for writ of habeas corpus was
significantly affected Thompkins’s trial                                     granted in federal court, the Sixth
considering all the additional evidence                                      Circuit reversed, ruling for Thompkins
of his guilt.5                                                               on both the Miranda and ineffective-
                                                                             assistance-of-counsel claims.17 The
       In 2001, Thompkins was                                                Supreme Court granted certiorari.18
questioned by police in regard to a                                                                                                      
shooting that left one person injured                                        7 See id.
and another dead.6 Prior to the                                              8 Id.
questioning he was given a paper copy of                                     9 Id.
                                                                             10 Id. at 2257.

                                                                             11 Id.
1 Berghuis v. Thompkins, 130 S. Ct. 2250, 2255                               12 Id.

(2010).                                                                      13 Id.
2 Id. at 2259, 2260, 2263.                                                   14 Id. at 2258.
3 Id. at 2264.                                                               15 Id.
4 Id. at 2259–60, 2262, 2264.                                                16 Id.
5 Id. at 2265.                                                               17 Id. (citations omitted).
6 Id. at 2256.                                                               18 Id. at 2259.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

                                                                        said nothing in response to [the
         The Court first addressed                                      officer’s] questions, or he could have
Thompkins’s argument that, by saying                                    unambiguously invoked his Miranda
little for almost three hours, he had                                   rights and ended the interrogation.”27
“‘invoked his privilege’ to remain
silent.”19 The Court, however, held that                                       Next, the Court addressed
just as the right to counsel must be                                    Thompkins’s argument the officers
“‘unambiguously’” invoked, so must the                                  could not interrogate him until he
right to remain silent.20 The Court                                     waived his right to remain silent.28 The
found an unambiguous invocation                                         Court held all that is required prior to
“‘avoid[s] difficulties of proof and . . .                              interrogation is a suspect receive
provide[s] guidance to officers’ on how                                 adequate Miranda warnings, understand
to proceed in the face of ambiguity.”21                                 them, and have an opportunity to invoke
Had Thompkins told his interrogators                                    his or her rights prior to giving any
“he wanted to remain silent or that he                                  answers.29 Thus, the officers “were not
did not want to talk with the police,” he                               required to obtain a waiver of
would have invoked his right to end the                                 Thompkins’s Miranda rights before
questioning.22                                                          commencing the interrogation.”30

       In considering whether                                                   Lastly, the Court addressed
Thompkins ever knowingly and                                            Thompkins’s ineffective-assistance-of-
voluntarily waived his right, the Court                                 counsel claim, specifically his argument
noted waivers can be established absent                                 a limiting instruction should have been
express statements.23 The main purpose                                  requested regarding Purifoy’s
of Miranda warnings is to ensure the                                    conviction.31 The Court found
suspect “is advised of and understands                                  Thompkins could not show prejudice on
the right to remain silent.”24 Thus, the                                the record, which had established it was
prosecution need not show a waiver was                                  not likely a limiting instruction would
express.25 When the prosecution has                                     have made a difference in light of the
established a warning was given and                                     other evidence of his guilt.32
understood by the accused, an
uncoerced statement is considered an                                            The Court reversed the decision
implied waiver.26 If Thompkins had                                      of the court of appeals, and the case was
“wanted to remain silent, he could have                                 remanded.33

19 Id. (quoting Miranda v. Arizona, 384 U.S. 436,                       27 Id. at 2263.
474 (1966)). Prior to addressing this issue, the                        28 Id.
Court noted all parties conceded the warning                            29 Id.

given Thompkins was in full compliance with                             30 Id. at 2264.

Miranda requirements. Id.                                               31 Id. at 2264–65.
20 Id. at 2259–60 (citations omitted).                                  32 Id. at 2265. The surviving victim had
21 Id. at 2260 (quoting Davis v. United States,                         “identified Thompkins as the shooter,” an
512 U.S. 452, 458–59 (1994)).                                           identification supported by a surveillance
22 Id. (citations omitted).                                             camera’s photograph. Id. A friend also testified
23 Id. at 2260–61 (citing North Carolina v.                             Thompkins confessed to him, the details of
Butler, 441 U.S. 369, 373 (1979)).                                      which were corroborated by other evidence. Id.
24 Id. at 2261 (citations omitted).                                     Further, the jury could have assessed Purifoy’s
25 Id.                                                                  credibility, as it had been instructed to do. Id.
26 Id. at 2262.                                                         33 Id.

                                                               ~ Fifth Amendment ~

                                                                             questions, the officers read him the
Florida v. Powell, 130 S. Ct. 1195                                           standard Tampa Police Department
(2010)                                                                       Consent and Release Form 310, which
        The Supreme Court considered
two issues in Florida v. Powell. The first                                                        You have the right
was whether it lacked jurisdiction                                                         to remain silent. If you
because the state court invoked its own                                                    give up the right to remain
state constitutional protections in its                                                    silent, anything you say
decision.34 The second was whether                                                         can be used against you in
advice to a suspect that he has the right                                                  court. You have the right
to speak to an attorney before answering                                                   to talk to a lawyer before
any law enforcement officer’s questions,                                                   answering any of our
and can invoke that right at any point                                                     questions. If you cannot
during the interview, was defective and                                                    afford to hire a lawyer, one
in violation of Miranda.35                                                                 will be appointed for you
                                                                                           without cost and before
       The Court first held that,                                                          any questioning. You have
although the state court invoked both                                                      the right to use any of
state and federal law in its decision,                                                     these rights at any time
federal jurisdiction was not precluded                                                     you want during this
because the state court “treated state                                                     interview.39
and federal law as interchangeable” and
did not assert state law gave the                                                    Powell said he understood his
defendant distinct or broader rights that                                    rights and would speak with the officers,
those outlined in Miranda.36 Second,                                         and he signed the consent and release
the two statements that the defendant                                        form.40 He then admitted to ownership
could (1) consult counsel before                                             of a handgun police had found during
answering any questions and (2)                                              their investigation.41
exercise that right while interrogation
was underway combined to reasonably                                                  Powell was charged with
convey the defendant’s right to have                                         possession of a weapon by a prohibited
counsel present not simply at the                                            possessor, a violation of Florida law.42
commencement of interrogation, but at                                        Contending the Miranda warnings were
any and all times.37                                                         inadequate because they did not
                                                                             sufficiently convey his right to have an
       Powell was arrested by Tampa                                          attorney present during questioning,
police officers and transported to police                                    Powell moved to prevent his inculpatory
headquarters after he was connected to                                       statements from being admitted.43 The
a robbery.38 Before asking Powell                                            trial court denied his motion, and a jury
34 Florida v. Powell, 130 S. Ct. 1195, 1201 (2010).
35 Id. at 1199–1200.                                                                                                                     
36 Id. at 1202 (citing Michigan v. Long, 463 U.S.                            39 Id. (citations omitted).
1032, 1044 (1983)).                                                          40 Id. (citation omitted).
37 Id. at 1205.                                                              41 Id.
38 Id. at 1200 (citing Powell v. State, 969 So. 2d                           42 Id.

1060, 1063 (Fla. Dist. Ct. App. 2007)).                                      43 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

subsequently convicted him of the gun-                                  provided Powell rights distinct from
possession charge.44                                                    those in Miranda.51 The Florida
                                                                        Supreme Court focused on what
       On appeal, the Florida Court of                                  Miranda demands, not on what Florida
Appeal held the trial court erred in not                                law requires.52 Because that court’s
suppressing Powell’s statements.45 The                                  decision failed to “‘indicat[e] clearly and
Florida Supreme Court also found the                                    expressly that it is alternatively based on
advice he received was misleading and                                   bona fide separate, adequate, and
violated Miranda and the Florida                                        independent [state] grounds,’” the
constitutional guarantees because it                                    United States Supreme Court had
suggested “Powell could ‘only consult                                   jurisdiction to decide the case.53
with an attorney before questioning’ and
did not convey Powell’s entitlement to                                          The Court then turned to whether
counsel’s presence throughout the                                       Powell was properly informed of his
interrogation.”46 The final catchall                                    right to the presence of an attorney
admonition—“‘[y]ou have the right to                                    under Miranda.54 The Court first
use any of these rights at any time you                                 emphasized it has not required any
want during this interview’”—did not                                    precise words from Miranda be given.55
cure the defect because “‘[t]he catch-all                               Rather, the inquiry is merely whether
phrase did not supply the missing                                       the warnings reasonably impart a
warning of the right to have counsel                                    suspect’s Miranda rights.56
present during police questioning . . .
[because] a right that has never been                                            The Court found the Tampa
expressed cannot be reiterated.’”47 The                                 police officers did not omit any
United States Supreme Court granted                                     information they were required by
certiorari and reversed.48                                              Miranda to provide.57 They informed
                                                                        Powell of his “‘right to talk to a lawyer
        The Court first dismissed the                                   before answering any of [their]
contention it lacked jurisdiction to hear                               questions’ and ‘the right to use any of
the case because the Florida court based                                [his] rights at any time [he] want[ed]
its decision on an independent state                                    during th[e] interview.’”58 The two
ground.49                                                               warnings combined to reasonably
                                                                        convey his right to have a lawyer present
       Although the Florida Supreme                                     at all times.59
Court invoked the Florida constitution
and state precedent, the court “treated
state and federal law as interchangeable
and interwoven.”50 At no point did that
court assert state law protections                                                                                                  
                                                                        51 Id. (citing Long, 463 U.S. at 1044).
                                                                        52 Id. (citing Powell, 998 So. 2d at 533).
44 Id. (citations omitted).                                             53 Id. at 1203 (quoting Long, 463 U.S. at 1041).
45 See id.                                                              54 See id.
46 See id. at 1200–01 (quoting State v. Powell,                         55 See id. at 1204.

998 So. 2d 531, 541–42 (Fla. 2008)).                                    56 Id. (citing Duckworth v. Eagan, 492 U.S. 195,
47 Id. at 1201 (quoting Powell, 998 So. 2d at 541).                     203 (1989)).
48 Id.                                                                  57 Id. (citation omitted).
49 Id. at 1201–02 (citations omitted).                                  58 Id. at 1204–05 (citation omitted).
50 Id. at 1202.                                                         59 Id. at 1205.

                                                               ~ Fifth Amendment ~

Maryland v. Shatzer, 130 S. Ct.                                              detail.67 Shatzer was read his Miranda
1213 (2010)                                                                  rights and signed a written waiver of
                                                                             those rights, which included the right to
        The Supreme Court was                                                have an attorney present.68 Shatzer
presented with two issues in Shatzer:                                        denied the allegations, but did admit to
First, how long of a break in custody is                                     a different lewd act conducted while his
necessary to meet the durational                                             son was present.69 Shatzer agreed to
requirement set forth in Edwards v.                                          submit to a polygraph exam, which he
Arizona?60 Second, does being released                                       subsequently failed.70 When questioned
back to the general prison population                                        following the test, Shatzer began to cry
constitute a break in custody for                                            and made incriminating statements.71
Miranda purposes?61 The Court
determined fourteen days is a sufficient                                            Shatzer was charged with second-
amount of time for a “suspect to get                                         degree sexual offense, sexual child
reacclimated to his normal life, to                                          abuse, second-degree assault, and
consult with friends and counsel, and to                                     contributing to conditions rendering a
shake off any residual coercive effects of                                   child in need of assistance.72 He moved
his prior custody.”62 The Court also held                                    to suppress the statements he made in
lawful imprisonment for a prior                                              March 2006 pursuant to Edwards.73
conviction does not create the pressures                                     The trial court held the Edwards
identified in Miranda.63                                                     protections were inapplicable because
                                                                             Shatzer “experienced a break in custody
       In August 2003, Shatzer, who                                          for Miranda purposes between the 2003
was in prison serving time for a child-                                      and 2006 interrogations.”74 He was
sexual-abuse offense, met with a police                                      found guilty of sexual child abuse.75 The
detective regarding allegations Shatzer                                      Court of Appeals of Maryland reversed,
sexually abused his own son.64 Before                                        holding, “‘[T]he passage of time alone is
any questions were asked, and after he                                       insufficient to [end] the protections
was read his Miranda rights, Shatzer                                         afforded by Edwards,’” and Shatzer’s
told the detective he would not speak                                        release back to the general prison
without an attorney present.65                                               population after the first interrogation
Accordingly, the interview was ended                                         “did not constitute a break in custody.”76
and Shatzer was released back to the
general prison population.66 In March
2006, 2.5 years after the initial
interview, Shatzer was again interviewed                                                                                                 
by a detective after Shatzer’s son
                                                                             67 Id. at 1217–18.
                                                                             68 See id. at 1218.
described the incident in greater                                            69 Id. “Shatzer denied ordering his son to

                                                                             perform fellatio on him, but admitted to
                                                                             masturbating in front of his son from a distance
60 Maryland v. Shatzer, 130 S. Ct. 1213, 1222                                of less than three feet.” Id.
(2010) (referencing Edwards v. Arizona, 451 U.S.                             70 Id.

477, 484–85 (1981)).                                                         71 Id. (citing Shatzer v. Maryland, 954 A.2d 1118,
61 Id. at 1224.                                                              1121 (Md. 2008)).
62 Id. at 1223.                                                              72 Id.
63 Id. at 1224.                                                              73 Id.
64 Id. at 1217.                                                              74 Id. (citation omitted).
65 Id.                                                                       75 Id. (citation omitted).
66 Id.                                                                       76 Id. (quoting Shatzer, 954 A.2d at 1131).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

The United States Supreme Court                                         coerced.80 This suspect has not been
granted certiorari.77                                                   isolated and has had the opportunity to
                                                                        seek advice from counsel, family, and
              Edwards held:                                             friends.81 This suspect also knows an
                                                                        interrogation can be stopped simply by
              [W]hen an accused has                                     demanding to have counsel present.82
              invoked his right to have
              counsel present during                                           The Court concluded fourteen
              custodial interrogation, a                                days is the appropriate length of time to
              valid waiver of that right                                be afforded a suspect who refuses to be
              cannot be established by                                  interrogated without having counsel
              showing only that he                                      present before law enforcement officials
              responded       to    further                             can ask again.83 Here, Shatzer’s release
              police-initiated custodial                                back into the general prison population
              interrogation even if he                                  met the durational requirement.84
              has been advised of his
              rights. . . . [He] is not                                         The Court next addressed
              subject       to      further                             whether Shatzer’s return to the general
              interrogation      by     the                             prison population constituted a break in
              authorities until counsel                                 Miranda custody, finding “lawful
              has been made available to                                imprisonment imposed upon conviction
              him, unless the accused                                   of a crime does not create the coercive
              himself initiates further                                 pressures identified in Miranda.”85
              communication,                                            Prisoners who are released back into
              exchanges,                 or                             prison return to their daily routines and
              conversations with the                                    accustomed surroundings, they are not
              police.78                                                 kept in isolation with their accusers.86
                                                                        Further, the interrogator cannot
       Edwards corrects the situation in                                increase the duration of the accused’s
which a suspect is arrested, refuses to be                              incarceration, which is determined at
interrogated without having counsel                                     sentencing.87
present, is kept isolated by the police
from his or her normal life, and finally                                      The Court held Edwards did not
agrees to interrogation without counsel                                 mandate suppression of Shatzer’s March
present.79 However, if a suspect is                                     2006 statements.88
released from pretrial custody and
returns to his or her normal life for a
period of time before a subsequent
interrogation, it is unlikely agreeing to
be questioned without counsel during                                                                                                
the subsequent interrogation has been                                   80 Id. at 1221.
                                                                        81 Id.
                                                                        82 Id.
77 Id. (citing Maryland v. Shatzer, 129 S. Ct. 1043                     83 Id. at 1223.

(2009)).                                                                84 Id. at 1222.
78 Id. at 1219 (quoting Edwards v. Arizona, 451                         85 Id. at 1224.

U.S. 477, 484–85 (1981)).                                               86 Id.
79 See id. at 1220 (citing Miranda v. Arizona, 384                      87 Id. at 1225.

U.S. 430, 456–57 (1966)).                                               88 Id. at 1227.

                                                               ~ Fifth Amendment ~

State v. Bogan, 774 N.W.2d 676                                               interrogation.98 The court emphasized
(Iowa 2009)                                                                  the following in its analysis:

       At issue in Bogan was whether a                                            (1)      School officials summoned Bogan
suspect interviewed was placed in                                                          to the school office;
custody and thus entitled to Miranda                                              (2)      The office detention served an
warnings.89 The Iowa Supreme Court                                                         investigatory purpose (i.e. to
concluded the suspect was in custody                                                       obtain Bogan’s statements and
during the interview and was granted a                                                     fingerprints);
new trial.90                                                                      (3)      Armed police officers escorted
                                                                                           Bogan to the office;
        Vincelina Howard was gunned                                               (4)      Two armed police officers
down during a drive-by shooting in                                                         guarded the only office exit;
Davenport, Iowa.91 Forensic and                                                   (5)      The detectives did not advise
eyewitness evidence linked Bogan to the                                                    Bogan that he was free to leave;
shooting.92 Davenport detectives                                                           and
interviewed Bogan, who was                                                        (6)      The public did not generally have
accompanied by his father, in the                                                          access to the place of
nurse’s office of Bogan’s Rock Island,                                                     interrogation.99
Illinois, school.93 The detectives did not
read Miranda warnings prior to                                                      Based on these factors, the court
questioning Bogan. During the                                                concluded Bogan was in custody during
interview, Bogan made incriminating                                          the interrogation and granted Bogan a
statements.94                                                                new trial.100

        At trial, Bogan argued the
statements should have been suppressed
because they were obtained in violation
of Miranda.95 The district court denied
the motion and admitted the statements.
A jury convicted Bogan of murder in the
first degree.96

       On appeal, the sole issue
addressed by the court was whether the
detectives placed Bogan in “custody” at
the time of the interview.97 Applying a
four-factor test, the court concluded
Bogan was in custody during the school
89 State v. Bogan, 774 N.W.2d 676 (Iowa 2009).
90 Id. at 682.
91 Id. at 677.
92 Id. at 678.
93 Id.
94 Id.                                                                                                                                   
95 Id. at 679.                                                               98 Id. at 682.
96 Id.                                                                       99 Id. at 680–81.
97 Id.                                                                       100 Id. at 682.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

IV.           SIXTH AMENDMENT                                                   Van Hook was indicted for
                                                                        aggravated murder and aggravated
                                                                        robbery.9 He waived his right to a jury
A.            Right to Counsel                                          trial and was found guilty on both
                                                                        charges by a three-judge panel.10 At
Bobby v. Van Hook, 130 S. Ct. 13                                        sentencing, the defense called several
(2009)                                                                  mitigation witnesses and Van Hook,
                                                                        himself, gave an unsworn statement.11
        In Bobby v. Van Hook, the                                       The trial court sentenced Van Hook to
Supreme Court considered whether the                                    death.12 The Ohio courts affirmed on
Sixth Circuit erred in granting habeas                                  appeal, and Van Hook filed a federal
relief on the ground Van Hook’s counsel                                 habeas petition thereafter.13 Eventually,
was ineffective.1 The Court held the                                    a Sixth Circuit panel granted Van Hook
Sixth Circuit erred because it gave too                                 habeas relief.14 The panel relied on
much weight to American Bar                                             guidelines published in 2003 by the
Association (ABA) standards of                                          ABA and granted relief on the ground
competent representation and did not                                    his counsel “performed deficiently in
use the standards available at the time of                              investigating and presenting mitigating
the offense.2                                                           evidence.”15 The Supreme Court granted
       In 1985, Van Hook went to a bar
in Cincinnati looking for someone to                                            The Court first noted the
rob.3 He met David Self, and after                                      constitutional standard of counsel
spending several hours drinking                                         guaranteed under the Sixth Amendment
together, the two left for Self’s                                       is a general one, and “‘[n]o particular set
apartment.4 There, Van Hook attacked,                                   of detailed rules for counsel’s conduct
strangled, and subsequently killed Self                                 can satisfactorily take account of the
with a kitchen knife, all before                                        variety of circumstances faced by
mutilating Self’s body.5 Van Hook                                       defense counsel or the range of
attempted to eliminate any evidence,                                    legitimate decisions regarding how best
stuffing the knife and various other                                    to represent a criminal defendant.’”17
items into Self’s body and smearing any                                 Professional standards can be helpful as
fingerprints he had left.6 He then fled                                 “‘guides’” to indicate what reasonable
with Self’s valuables.7 Police found Van                                representation means, “but only to the
Hook in Florida, where he ultimately                                    extent they describe the professional
confessed.8                                                             norms prevailing when the

                                                                        9 Id.
1 See Bobby v. Van Hook, 130 S. Ct. 13, 16                              10 Id.
(2009).                                                                 11 Id.
2 See id. at 16–17.                                                     12 See id.
3 Id. at 15.                                                            13 Id. at 15–16 (citations omitted).
4 Id.                                                                   14 Id. at 16.
5 Id. (citing State v. Van Hook, 530 N.E.2d 883,                        15 Id. (citing Van Hook v. Anderson, 560 F.3d

884 (Ohio 1988)).                                                       523, 525 (6th Cir. 2008)).
6 Id.                                                                   16 Id.
7 Id.                                                                   17 Id. (quoting Strickland v. Washington, 466
8 Id.                                                                   U.S. 668, 688–89 (1984)).

                                                               ~ Sixth Amendment ~

representation took place.”18 The Sixth                                                    visited immediately after
Circuit therefore erred when it relied on                                                  the crime.23
ABA guidelines announced eighteen
years after Van Hook’s trial.19 The ABA                                      They contacted one expert witness over
standards in effect in 1985 described the                                    a month before trial and met with the
duties of defense counsel very differently                                   other expert for two hours each week
than those promulgated in 2003, upon                                         prior to the trial court reaching its
which the Sixth Circuit based its                                            verdict.24 Moreover, Van Hook’s
decision.20                                                                  counsel met with a Veterans
                                                                             Administration representative seven
        Compounding that error, the                                          weeks prior to trial and attempted to
Sixth Circuit considered the ABA’s 2003                                      acquire his medical records.25 They also
guidelines as inexorable commands that                                       considered hiring a mitigation specialist
all capital defense counsel needed to                                        five weeks before the trial.26 In sum, the
comply with, rather than mere evidence                                       Sixth Circuit was simply incorrect in
of what diligent attorneys should do.21                                      finding Van Hook’s counsel “waited
Unlike the Sixth Circuit, the Supreme                                        until the ‘last minute.’”27
Court found Van Hook’s counsel met the
constitutional standard.22 The Court                                                Van Hook’s counsel put forth the
noted:                                                                       following evidence: (1) both Van Hook’s
                                                                             parents were “‘heavy drinkers’”; (2) Van
              Between      Van    Hook’s                                     Hook began drinking as a toddler and
              indictment and his trial                                       “‘barhopping’” at age nine; (3) he drank
              less than three months                                         and used drugs regularly since the age of
              later, they [Van Hook’s                                        eleven, continuing his use into
              counsel] contacted their                                       adulthood.28 Counsel also showed Van
              lay witnesses early and                                        Hook was raised in a home with
              often: They spoke nine                                         substantial domestic violence: “He
              times with his mother                                          watched his father beat his mother
              (beginning within a week                                       weekly, saw him hold her at gun- and
              after the indictment), once                                    knife-point,” “was beaten himself at
              with       both    parents                                     least once,” and “‘observed’ episodes of
              together, twice with an                                        ‘sexual violence.’”29 The court further
              aunt who lived with the                                                                                                    
              family and often cared for                                     23 Id. at 18 (citing Petition for Writ of Certiorari

              Van Hook as a child, and                                       at 380a–83a, 384a–87a, Bobby v. Van Hook,
              three times with a family                                      130 S. Ct. 13 (2009)).
                                                                             24 Id. (citing Petition for Writ of Certiorari at
              friend whom Van Hook                                           382a, 386a, Van Hook, 130 S. Ct. 13).
                                                                             25 Id. (citing Petition for Writ of Certiorari at

                                                                             381a, 386a, Van Hook, 130 S. Ct. 13).
                                                                             26 Id. (citing Petition for Writ of Certiorari at

                                                                             386a, Van Hook, 130 S. Ct. 13).
                                                                             27 Id. (citing Van Hook v. Anderson, 560 F.3d
18 Id. (quoting Strickland, 466 U.S. at 688).                                523, 528 (6th Cir. 2008)).
19 Id. at 16–17.                                                             28 Id. (citing Petition for Writ of Certiorari at
20 Id.                                                                       310a–12a, 323a–26a, 328a–30a, 373, Van
21 Id. at 17 (citing Van Hook v. Anderson, 560                               Hook, 130 S. Ct. 13).
F.3d 523, 526 (6th Cir. 2008)).                                              29 Id. (citing Petition for Writ of Certiorari at
22 See id. at 17–19.                                                         321a, 338a–39a, 371a, Van Hook, 130 S. Ct. 13).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

learned Van Hook—“who had ‘fantasies
about killing and war’ from an early
age”—was very upset when his abuse of
drugs and alcohol resulted in his                                       Porter v. McCollum, 130 S. Ct. 447
removal from the military and had                                       (2009)
attempted suicide five times, one
attempt occurring just a month prior to                                         At issue in Porter v. McCollum
the murder.30 The trial court also                                      was whether an inmate sentenced to
learned from experts “that Van Hook’s                                   death should be granted habeas corpus
borderline personality disorder and his                                 relief when his trial counsel presented
consumption of drugs and alcohol the                                    scant mitigating evidence at his trial.
day of the crime impaired ‘his ability to                               The Supreme Court held, under the
refrain from the [crime]’ and that his                                  particular facts of the case, the
‘explo[sion]’ of ‘senseless and bizarre                                 defendant was entitled to habeas relief
brutality’ may have resulted from what                                  because his counsel’s ineffective
one expert termed a ‘homosexual                                         assistance violated his Sixth
panic.’”31                                                              Amendment rights.

       Finally, even if Van Hook’s                                             Porter was convicted of two
lawyers performed deficiently, he did                                   counts of first-degree murder for the
not suffer prejudice as a result.32 There                               shooting of his former girlfriend, Evelyn
was substantial evidence of the                                         Williams, and her boyfriend Walter
aggravating circumstance “he                                            Burrows.36 He was sentenced to death.37
committed the murder alone in the                                       At the sentencing phase of Porter’s trial,
course of an aggravated robbery.”33 Van                                 his counsel did not present evidence
Hook confessed “he was the sole                                         concerning his heroic military service in
perpetrator of the crime and that ‘[h]is                                horrific combat situations, his struggles
intention from beginning to end was to                                  to reintegrate into society upon his
rob [Self] at some point in their                                       return from war, and childhood history
evening’s activities.’”34 Van Hook had                                  of physical abuse, which he escaped by
pursued the same strategy—luring                                        joining the military at age seventeen.38
homosexual men into isolated areas to                                   His counsel also failed to uncover and
rob them—many times since he was a                                      present evidence of Porter’s brain
teenager, and he used it again after the                                abnormality, his difficulty reading and
murder in the weeks prior to his arrest.35                              writing, and his limited educational
30 Id. (citing Petition for Writ of Certiorari at
                                                                               After his conviction, Porter filed a
351a–53a, 372a, Van Hook, 130 S. Ct. 13).                               federal habeas petition.40 The District
31 Id. at 18–19 (citing Petition for Writ of                            Court held Porter’s penalty phase
Certiorari at 303a, 376a, Van Hook, 130 S. Ct.                          counsel had been ineffective and that
32 Id. at 19 (citing Strickland v. Washington, 466                                                                                  
U.S. 668, 694 (1984)).                                                  36 Porter v. McCollum, 130 S. Ct. 447, 448
33 Id. (citing OHIO REV. CODE ANN. §                                    (2009).
2929.04(A)(7) (LexisNexis 2006)).                                       37 Id.
34 Id. (citations omitted).                                             38 Id. at 449.
35 Id. (citing Petition for Writ of Certiorari at                       39 Id.

279a, 295a, 374a, Van Hook, 130 S. Ct. 13).                             40 Id.

                                                               ~ Sixth Amendment ~

counsel’s deficient performance was                                          Sears v. Upton, 130 S. Ct. 3259
prejudicial.41 The Eleventh Circuit                                          (2010)
reversed.42 The Supreme Court
unanimously held that counsel’s failure                                             In Sears, the Supreme Court was
to uncover and present any evidence of                                       asked to decide whether the presumed
the inmate’s mental health or mental                                         reasonableness of a counsel’s mitigation
impairment, his family background, or                                        theory obviates the need for the court to
his military service clearly constituted                                     analyze whether the defendant was
deficient performance of counsel, and                                        prejudiced by counsel’s decision to not
such deficient performance was                                               conduct a proper mitigation
prejudicial to the inmate, satisfying the                                    investigation prior to arriving at this
Stickland v. Washington standard.43                                          theory.49 The Court determined the
The judge and jury heard almost nothing                                      lower court should have considered both
that would humanize Porter or allow                                          newly uncovered evidence of the
them to gauge his moral culpability with                                     defendant’s mental and psychological
any accuracy.44 The sentencing evidence                                      impairments and mitigation evidence
consisted almost entirely of the inmate’s                                    presented at the penalty phase.50
turbulent relationship with one victim
and the inmate’s crimes, and there was                                               In 1993, Sears was convicted of a
no evidence tending to humanize the                                          capital crime.51 During the penalty stage
inmate or allow an accurate assessment                                       of his trial, his counsel offered evidence
of his moral culpability.45 The weight of                                    showing he had a stable and advantaged
evidence in aggravation was also not as                                      upbringing.52 During the postconviction
substantial as the sentencing judge                                          hearing, however, mitigating evidence
thought.46 The probability of a different                                    was presented showing Sears clearly did
sentence was indicated in weighing the                                       not have a privileged upbringing.53 In
omitted evidence in mitigation against                                       addition, evidence presented at the
the relatively insubstantial evidence in                                     hearing revealed “Sears suffered
aggravation that, after a night of                                           ‘significant frontal lobe
drinking, the inmate shot his former                                         abnormalities.’”54 On different
girlfriend and her boyfriend who                                             standardized tests Sears scored “at or
attempted to intervene.47                                                    below the first percentile in several
                                                                             categories of cognitive function.”55 It
       The Supreme Court reversed the                                        was determined his ability to organize
Eleventh Circuit with respect to the                                                                                                     
Court of Appeals’ disposition of Porter’s                                    49 Sears v. Upton, 130 S. Ct. 3259, 3265 (2010).
ineffective-assistance claim.48
                                                                             50 Id. at 3267.
                                                                             51 Id. at 3261 (citing GA. CODE ANN. § 16-5-

                                                                             40(d)(4) (2006)).
                                                                             52 Id. at 3261–62.

                                                                             53 Id. at 3262. Sears’s parents were physically
41 Id. at 452.                                                               abusive with each other and divorced when he
42 Id.                                                                       was young. Id. (citations omitted). As a child,
43 Id. (citing Strickland v. Washington, 466 U.S.                            Sears was sexually abused by an older male
668 (1984)).                                                                 cousin, verbally abused by both parents, and
44 Id.                                                                       demonstrated substantial behavior problems.
45 Id. at 454.                                                               Id. (citations omitted).
46 Id.                                                                       54 Id. (citation omitted).
47 Id.                                                                       55 Id. (citations omitted); see id. at 3263 (citation
48 Id.                                                                       omitted).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

choices, weigh those choices in relation                                of Sears’s counsel’s mitigation theory.61
to each other, and deliberately select                                  Second, regardless of whether the theory
from among them was grossly                                             was reasonable, the court should have
impaired.56 Further, Sears’s brother was                                analyzed whether the failure by his
involved in crime, and it was determined                                counsel to conduct a proper mitigation
Sears may have followed in his brother’s                                investigation prior to arriving at its
footsteps both out of a desire for                                      theory prejudiced Sears.62 The Court
acceptance and “diminished judgment                                     determined “any finding with respect to
and reasoning skills.”57                                                the reasonableness of the mitigation
                                                                        theory counsel utilized . . . is in tension
        The postconviction trial court                                  with the trial court’s unambiguous
determined Sears’s counsel’s penalty                                    finding that counsel’s investigation was
phase investigation had been                                            itself . . . facially unconstitutional.”63
constitutionally deficient.58 While that                                Also, the court did not apply the correct
court applied the proper prejudice                                      prejudice inquiry; Strickland’s prejudice
standard, it incorrectly conceptualized                                 inquiry has never been limited to cases
how that standard applied to Sears’s                                    in which there had been “‘little or no
circumstances.59 The court determined                                   mitigation evidence’” presented.64
Sears’s counsel offered “‘a reasonable                                  Deficiency and prejudice have been
theory with supporting evidence,’” so                                   found in cases in which counsel offered
Sears did not meet his burden of proof—                                 “a superficially reasonable mitigation
there was a reasonable likelihood his                                   theory.”65 The Court noted it has never
trial’s outcome would have been                                         held the “effort to present some
different had an alternate mitigation                                   mitigation evidence” forecloses
theory been advanced.60                                                 inquiring whether the defendant was
                                                                        prejudiced by “a facially deficient
       The Supreme Court found two                                      mitigation investigation.”66
errors in the lower court’s Sixth
Amendment analysis: First, it unduly                                            The proper inquiry is to
relied on the supposed reasonableness                                   “‘consider the totality of the available
                                                                        mitigation evidence—both that adduced
                                                                        at trial, and the evidence adduced in the
56 Id. (citation omitted).
57 Id. (citations omitted). The Court noted
                                                                        habeas proceeding—and reweig[h] it
Sears’s counsel should have turned some of this                         against the evidence in aggravation.’”67
adverse evidence into a positive regarding his                          This standard was found to apply
defense; his counsel should have presented this                         regardless of the mitigation evidence
evidence in order to help the jury understand                           presented at the initial penalty phase.68
Sears and his actions. Id. at 3264. However, his
counsel’s failure to conduct a proper mitigation
                                                                        The Court held the proper application of
investigation kept this information from the                            the Strickland inquiry would have
jury. Id.                                                                                                                           
58 Id. (citing Strickland v. Washington, 466 U.S.                       61 Id. at 3265.
668, 688 (1984)).                                                       62 Id.
59 Id. (citations omitted). The court applied the                       63 Id.

Strickland standard, asking if there was “‘a                            64 Id. at 3265–66 (citation omitted).

reasonable likelihood that the outcome of his                           65 Id. at 3266 (citations omitted).

trial would have been different if his counsel had                      66 Id.

done more investigation.’” Id. at 3264 n.8                              67 Id. (quoting Porter v. McCollum, 130 S. Ct.

(citations omitted).                                                    447, 453–54 (2009)).
60 Id. at 3264–65 (citations omitted).                                  68 Id. at 3266–67.

                                                               ~ Sixth Amendment ~

resulted in the consideration of “the                                        in state court and sentenced to death.76
newly uncovered evidence of Sears’s                                          Belmontes’s request for federal habeas
‘significant’ mental and psychological                                       relief was denied by the district court.77
impairments” and the mitigation                                              Eventually, the court of appeals ruled for
evidence put forth at the penalty phase                                      Belmontes, finding he “suffered
trial.69 This consideration would have                                       ineffective assistance of counsel during
assessed whether there was a reasonable                                      the sentencing phase of his trial.”78 The
probability “Sears would have received a                                     district court had denied Belmontes
different sentence after a                                                   relief on that ground, finding that
constitutionally sufficient mitigation                                       although his counsel “had performed
investigation.”70                                                            deficiently under Ninth Circuit
                                                                             precedent,” “Belmontes could not
       The Court vacated the judgment                                        establish prejudice under Strickland v.
below, and remanded the case for                                             Washington.”79 The court of appeals
further proceedings consistent with its                                      agreed Belmontes’s counsel’s
opinion.71                                                                   performance was in fact deficient, but
                                                                             found prejudice had been established
Wong v. Belmontes, 130 S. Ct. 383                                            under Strickland v. Washington,
(2009)                                                                       determining “counsel’s errors
                                                                             undermined confidence in the penalty
        At issue in Belmontes was the                                        phase verdict.”80 The Supreme Court
fact-intensive issue of whether a                                            disagreed with the Ninth Circuit as to
defendant sentenced to death should be                                       prejudice, granted the State’s petition
granted habeas corpus relief.72 The                                          for certiorari, and reversed.81
United States Supreme Court held the
defendant was not entitled to habeas                                                The Supreme Court described the
relief on his claim of ineffective                                           strong case the State had against
assistance of counsel because the                                            Belmontes. First, substantial evidence
defendant failed to show prejudice.73                                        indicated he had committed a murder
                                                                             before.82 In fact, he had boasted to
       In 1981, during a burglary,                                           several people he was the one
Belmontes beat a woman to death,                                             responsible for the murder.83
striking her head fifteen to twenty times                                    Belmontes’s counsel was warned that if
with a dumbbell bar.74 Afterward,                                            Belmontes attempted to testify he was
Belmontes and his accomplices took the                                       not a violent person the door would be
victim’s stereo, sold it for cash, and used                                  opened for the prior murder evidence to
the cash to buy beer and drugs.75                                            come in.84 Belmontes’s attorney thus
Belmontes was found guilty of murder                                                                                                     
                                                                             76 Id.
                                                                             77 Id.
69 Id. at 3267.                                                              78 Id.
70 Id. (citations omitted).                                                  79 Id. (citing Strickland v. Washington, 466 U.S.
71 Id.                                                                       668 (1984)).
72 See Wong v. Belmontes, 130 S. Ct. 383, 384                                80 See id. (citing Belmontes v. Ayers, 529 F.3d

(2009).                                                                      834, 859–63, 874 (9th Cir. 2008)).
73 See id. at 391.                                                           81 Id.
74 Id. at 384 (citing People v. Belmontes, 755                               82 Id. at 385.

P.2d 310, 315–16 (Cal. 1988)).                                               83 See id.
75 Id. (citing Belmontes, 755 P.2d at 318–19).                               84 Id. at 386 (citation omitted).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

had to meticulously tailor his mitigation                               federal habeas corpus statute, a
case.85 Ultimately, he was able to put on                               petitioner must establish only that the
nine witnesses and present substantial                                  state-court factual determination on
evidence that advanced a case for                                       which the decision was based was
mitigation, all the while not opening the                               “unreasonable,” or whether § 2254(e)(1)
door for the State to introduce the prior                               additionally requires a petitioner to
murder evidence.86                                                      rebut a presumption the determination
                                                                        was correct with clear and convincing
        The Court noted, “Here, the worst                               evidence. Second, whether the state
kind of bad evidence would have come                                    court reasonably determined Wood’s
in with the good.”87 It was only because                                counsel made a “strategic decision” not
Belmontes’s attorney was careful—not                                    to pursue or present evidence of his
ineffective—in his mitigation case that                                 mental deficiencies.
the bad evidence did not come in.88
Moreover, the aggravation evidence the                                         The Court concluded the state
jury did see was substantial; autopsy                                   court’s factual determination was
photographs showing the victim’s                                        reasonable even under Petitioner’s
mangled head and crushed skull were                                     interpretation of § 2254(d)(2), and
shown to the jury.89 The victim’s body                                  therefore did not address its relationship
showed numerous defensive bruises,                                      to § 2254(e)(1).93
which “‘evidenced a desperate struggle
for life.’”90 The jury also heard this                                          In 1993, petitioner Wood broke
savagery “was committed solely to                                       into the home of his ex-girlfriend and
prevent interference with a burglary that                               shot her in the head and face as she lay
netted Belmontes $100 he used to buy                                    in bed.94 He was convicted of first-
beer and drugs.”91 The victim suffered                                  degree murder and sentenced to death.95
needlessly, and the Court found it “hard                                After exhausting his direct appeals at the
to imagine expert testimony and                                         state level, he filed for habeas relief in
additional facts about Belmontes’s                                      the federal system.96 He claimed his
difficult childhood outweighing the facts                               attorneys were ineffective for failing to
of [the victim’s] murder.”92                                            investigate and present mitigating
                                                                        evidence regarding his borderline
Wood v. Allen, 130 S. Ct. 841                                           mental retardation during the penalty
(2010)                                                                  phase of his trial.97 He argued the
                                                                        attorney who handled the penalty phase
        The United States Supreme Court                                 was inexperienced and never made a
granted certiorari in Wood to determine                                 strategic decision not to offer evidence
two issues: First, whether in order to                                  regarding his alleged mental
satisfy 28 U.S.C. §§ 2254(d)(2), the                                    deficiencies.98 The district court granted
                                                                        him relief, but the Eighth Circuit
85 Id.
86 See id. (citation omitted).
87 Id. at 390.                                                                                                                      
88 See id.                                                              93 Wood v. Allen, 130 S. Ct. 841, 849 (2010).
89 Id.                                                                  94 Id. at 845.
90 Id. (quoting People v. Belmontes, 755 P.2d                           95 Id.

310, 354 (Cal. 1988)).                                                  96 Id. at 846.
91 Id.                                                                  97 Id.
92 Id. at 390, 391.                                                     98 Id.

                                                               ~ Sixth Amendment ~

reversed.99 The Supreme Court granted                                        in the report about Wood’s mental
certiorari.100                                                               deficiencies and not to present to the
                                                                             jury such information as counsel already
       First, the Court noted the                                            possessed about these deficiencies.”107
evidence showed all three of his                                             Thus, the Supreme Court affirmed the
attorneys read a mental evaluation of                                        Eighth Circuit’s determination the
Wood that was completed by a doctor.101                                      District Court erred in granting habeas
One of the attorneys testified that one of                                   relief to Wood.108
the more-experienced attorneys working
on the case told him nothing in the                                          State v. Canal, 773 N.W.2d 528
report merited further investigation.102                                     (Iowa 2009)
One of Wood’s attorneys wrote to the
other two attorneys working on the case                                              The issues in Canal were (1)
noting no independent psychological                                          whether there was sufficient evidence to
evaluations had been conducted because                                       establish e-mails Canal sent a minor
they had said such evaluations would                                         were obscene and (2) whether Canal’s
not be needed.103 One of his attorneys                                       trial counsel was ineffective in not
also told the sentencing judge counsel                                       requesting a jury instruction stating
did not intend to introduce the mental                                       mere nudity does not constitute
evaluation report to the jury.104 This                                       obscenity.109 The Iowa Supreme Court,
evidence in the state-court record                                           affirming the district and appellate
supported the factual determination                                          courts below, held sufficient evidence
Wood’s counsel’s failure to pursue or                                        existed to uphold Canal’s conviction for
present evidence of Wood’s mental                                            knowingly disseminating obscene
deficiencies was not mere oversight or                                       material to a minor and his counsel at
neglect but was instead the result of a                                      trial was not ineffective.110
deliberate decision to focus on other
defenses.105 As for any evidence not                                                Canal involved “the practice of
consistent with a finding Wood’s counsel                                     sending nude photographs via text
made a strategic decision, the Court                                         message,” otherwise known as
decided it was not sufficient to show the                                    “sexting.”111 Canal, who was eighteen at
finding was unreasonable.106                                                 the time, sent an e-mail with a
                                                                             photograph of his erect penis to his
        The Court concluded: “[E]ven if                                      fourteen-year-old female friend, C.E.112
it is debatable, it is not unreasonable to                                   C.E.’s mother discovered Canal’s e-mail
conclude that, after reviewing the                                           and sent it to C.E.’s father, who reported
[mental examination] report, counsel                                         the e-mail to the local authorities.113
made a strategic decision not to inquire                                     Canal was charged and convicted of
further into the information contained                                       knowingly disseminating obscene

99 Id. at 847.                                                               107 Id. at 850–51.
100 Id. at 848.                                                              108  Id. at 851.
101 Id.                                                                      109 State v. Canal, 773 N.W.2d 528, 530 (Iowa
102 Id.                                                                      2009).
103 Id. at 849.                                                              110 Id. at 533.
104 Id.                                                                      111 Id. at 529.
105 Id. at 844.                                                              112 Id.
106 Id. at 850.                                                              113 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

material to a minor in violation of Iowa                                The crux of Canal’s argument was his
Code section 728.2.114 Canal was                                        trial counsel failed to request a jury
granted a deferred judgment and                                         instruction stating “mere nudity does
appealed.115 Canal’s initial appeal was                                 not constitute obscenity.”125 Rejecting
denied because a deferred judgment is                                   Canal’s contention, the court explained:
not a “final judgment” from which a
defendant may appeal.116 Canal’s                                                              The [district] court
deferred judgment, however, was                                                       told the jury that a
subsequently revoked due to a probation                                               depiction of a person’s
violation, and Canal appealed again.117                                               genitals was not in and of
The court of appeals affirmed, and the                                                itself obscene. In order for
Iowa Supreme Court granted further                                                    the depiction of a person’s
review.118                                                                            genitals to be obscene, an
                                                                                      average person applying
        The court first addressed Canal’s                                             contemporary community
sufficiency-of-the-evidence claim.119                                                 standards with respect to
Canal argued the photograph of his erect                                              what is suitable material
penis was not “obscene” as it was                                                     for minors must find the
statutorily defined.120 He asserted the                                               material      is     patently
photograph did not appeal to the                                                      offensive, appeals to the
prurient interest; rather, it merely                                                  prurient interest, and lacks
“appealed to a natural interest in sex.”121                                           serious literary, scientific,
The court held that “under the                                                        political, or artistic value.
instructions given the jury could find, by                                            When        viewing        the
applying its own contemporary                                                         instructions     in      their
community standards with respect to                                                   entirety,      the      court
what is suitable material for minors, that                                            effectively instructed the
the material appealed to the prurient                                                 jury that mere nudity does
interest, was patently offensive, and                                                 not constitute obscenity.
lacked serious literary, scientific,                                                  Although the court could
political, or artistic value.”122 Therefore,                                          have       phrased         the
the court held, sufficient evidence                                                   instruction to say, “mere
existed to sustain Canal’s conviction.123                                             nudity does not constitute
                                                                                      obscenity,” Canal’s trial
       The court then examined Canal’s                                                counsel did not provide
claim his trial counsel was ineffective.124                                           ineffective        assistance
                                                                                      because of his failure to
114 Id.
                                                                                      object to the generally
115 Id. at 529–30.                                                                    accurate instructions.126
116 See id. at 530 (citing State v. Stessman, 460

N.W.2d 461, 462 (Iowa 1990)).                                                  Consequently, the court affirmed
117 Id.
118 Id.
                                                                        Canal’s conviction for knowingly
119 Id. at 530–32.                                                      disseminating obscene material to a
120 See id.
121 See id. at 532.                                                                                                                 
122 Id.                                                                   Id. at 532.
123 Id.                                                                 126Id. at 533 (citing State v. Reyes, 744 N.W.2d
124 Id. at 532–33.                                                      95, 103 (Iowa 2008)).

                                                               ~ Sixth Amendment ~

minor and held his trial counsel was not                                     evidence that fourteen prospective
ineffective.127                                                              jurors could have been seated in the jury
                                                                             box, while the remaining twenty-eight
                                                                             could have fit in one section of the
B.            Right to Public Trial                                          courtroom, leaving sufficient room for
                                                                             the public.134 The trial court, however,
Presley v. Georgia, 130 S. Ct. 721                                           denied the motion.135 The Georgia Court
(2010)                                                                       of Appeals and Georgia Supreme Court
                                                                             affirmed the trial court, holding the trial
       In Presley v. Georgia, the United                                     court possessed an overriding interest in
States Supreme Court considered                                              preventing potential jurors from hearing
whether the defendant’s “Sixth and                                           inherently prejudicial remarks made by
Fourteenth Amendment right to a public                                       the public.136
trial was violated when the trial court
excluded the public from the voir dire of                                            In reversing the conviction, the
prospective jurors.”128 In a per curiam                                      United States Supreme Court stressed
opinion, the Court held the                                                  trial courts have a responsibility to
constitutional right to a public trial                                       reasonably accommodate the public in
extends to the jury selection process.129                                    attendance at criminal trials.137 The
                                                                             Court noted there was simply no
        Just before jury selection began                                     indication the public could not have
in Presley’s trial for cocaine trafficking,                                  been accommodated at Presley’s trial.138
the trial judge noticed a lone observer                                      For example, the trial court could have
sitting in the courtroom.130 The trial                                       reserved rows for the public, divided the
judge instructed the observer to leave                                       jury venire panel so courtroom
the courtroom, explaining it was                                             congestion was reduced, or instructed
necessary in order to allow space for the                                    prospective jurors not to interact with
forty-two prospective jurors to be seated                                    audience members.139
and ensure jurors would not intermingle
with members of the public.131 Presley’s                                            The Court did qualify its ruling,
counsel objected, requesting                                                 noting, “There are no doubt
accommodation be made to allow the                                           circumstances where a judge could
public to remain in the courtroom, but                                       conclude that threats of improper
the trial judge stated the public could                                      communications with jurors or safety
only reenter the courtroom following                                         concerns are concrete enough to warrant
jury selection.132 Presley was convicted                                     closing voir dire” to the public.140
and subsequently submitted a motion                                          However, the justification for doing so
for a new trial, arguing exclusion of the                                    “must ‘be articulated along with findings
public from voir dire was                                                    specific enough that a reviewing court
unconstitutional.133 He presented                                            can determine whether the closure order
127 Id.                                                                                                                                  
128 Presley v. Georgia 130 S. Ct. 721, 722 (2010).                           134 Id. (citation omitted).
129 Id.; see id. at 725.                                                     135 Id. (citation omitted).
130 Id. at 722 (citing Presley v. State, 674 S.E.2d                          136 Id. (citing Presley, 674 S.E.2d at 911).

909, 910 (Ga. 2009)).                                                        137 Id. at 725.
131 Id. (citing Presley, 674 S.E.2d at 910).                                 138 Id.
132 See id. (citing Presley, 674 S.E.2d at 910).                             139 Id.
133 See id.                                                                  140 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)     

was properly entered.’”141 Nevertheless,
even assuming for the sake of argument
the trial court did have an overriding
interest in restricting access to voir dire,
it was still required “to consider all
reasonable alternatives to closure,”
which it did not do.142

141 Id. (quoting Press-Enterprise Co. v. Superior

Court of Cal., Riverside County, 464 U.S. 501,
510 (1984)).
142 Id.

                                                               ~ Eighth Amendment ~

V.            EIGHTH AMENDMENT                                                mandatory sentence.8 The district court,
                                                                              expressing remorse, imposed the
State v. Bruegger, 773 N.W.2d 862                                             mandatory sentence.9 Bruegger did not
(Iowa 2009)                                                                   allege the sentence was cruel and
                                                                              unusual during sentencing.10
        The primary issue in Bruegger
was whether Bruegger’s enhanced                                                      Despite this, Bruegger appealed,
sentence for statutory rape, as applied,                                      arguing the normal preservation-of-
violated the cruel and unusual                                                error principles did not apply because
punishment clause of the Iowa                                                 his sentence was cruel and unusual and
constitution where Bruegger’s                                                 therefore amounted to an illegal
enhancement was based upon a juvenile                                         sentence.11 The court, overruling
conviction.1 The Iowa Supreme Court                                           contrary precedent, held, “Where, as
held, inter alia, an as-applied challenge                                     here, the claim is that the sentence itself
may be levied against a sentence under                                        is inherently illegal, whether based on
article I, section 17 of the Iowa                                             constitution or statute, we believe the
constitution.2 The record in this case,                                       claim may be brought at any time.”12
however, was insufficient; therefore, the                                     Consequently, Bruegger’s claim his
court vacated the district court’s                                            sentence amounted to cruel and unusual
sentence and remanded for an                                                  punishment could be raised for the first
evidentiary hearing.3                                                         time on appeal.13

       Bruegger, then twenty-one, and                                                 Turning to the crux of the case,
K.B., then fifteen, had a sexually                                            the court examined the jurisprudential
intimate relationship.4 Although their                                        underpinnings of the Cruel and Unusual
sexual relationship was consensual,                                           Punishment Clause at the federal and
Bruegger was charged and convicted of                                         state levels.14 The court first laid out the
statutory rape in violation of Iowa Code                                      analytical framework espoused by
section 709.4(2)(c)(4).5 A conviction for                                     federal courts and examined how that
statutory rape generally carries with it a                                    framework has been applied.15 The
prison sentence lasting no more than ten                                      court found the Supreme Court noted,
years.6 Bruegger, however, was subject                                        “[I]n death penalty cases, courts must
to an enhanced sentence due to a                                              engage in consideration of the character
sexually predatory offense he was                                             and record of the individual offender
convicted of in Minnesota when he was                                         and the circumstances of the particular
a juvenile.7 The sentence enhancement                                         offense before the death penalty may be
subjected Bruegger to a twenty-five-year

                                                                              8 Id.; IOWA CODE § 901A.2(3) (2005). Bruegger

                                                                              would be ineligible for parole until he served
1 See State v. Bruegger, 773 N.W.2d 862, 866                                  approximately 21.25 years. Id.
(Iowa 2009).                                                                  9 Id. at 868.
2 See id. at 882.                                                             10 See id. at 870.
3 Id. at 886.                                                                 11 See id.
4 Id. at 866.                                                                 12 Id. at 872.
5 Id. at 867.                                                                 13 Id.
6 Id.                                                                         14 Id. at 872–82.
7 Id.                                                                         15 Id. at 872–79.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

imposed.”16 Applying a narrow                                           “[u]nder an as-applied attack, a criminal
interpretation of Justice Scalia’s opinion                              statute imposing a certain sentence is
in Harmelin v. Michigan, the court                                      not facially invalid in all circumstances,
noted, “Part IV of the Scalia opinion                                   but only as applied under the facts and
simply does not address the question of                                 circumstances in a particular case.”23
whether a defendant may concede the
facial validity of a mandatory sentencing                                       Applying these principles to the
statute, but then attack the                                            Iowa constitution, the court held the
constitutionality of its application in a                               state’s cruel and unusual punishment
particular case in light of all the facts                               clause permits an as-applied attack on a
and circumstances involved.”17 The                                      facially valid sentencing scheme.24 The
court then noted Justice O’Connor’s                                     court supported its conclusion by
plurality opinion in Ewing v. California                                maintaining that “[i]f individualized
indicated federal courts are willing to                                 consideration of the facts and
examine the constitutionality of a                                      circumstances were never allowed,
sentence “as applied.”18                                                legislatures could eviscerate judicial
                                                                        review of the proportionality of
       The next step in the court’s                                     punishment by broadly defining crimes
analysis was to examine how other                                       and imposing mandatory stiff penalties
states have interpreted their own cruel                                 in all cases.”25 Three features of this
and unusual punishment clauses.19 The                                   case combined to generate a cruel and
court explained, “One line of state                                     unusual punishment: “a broadly framed
supreme court cases departs from                                        crime, the permissible use of preteen
United States Supreme Court precedent                                   juvenile adjudications as prior
by generally adopting the Supreme                                       convictions to enhance the crime, and a
Court’s analytical framework for cruel-                                 dramatic sentence enhancement for
and-unusual-punishment claims but                                       repeat offenders.”26
applying it in a more stringent
fashion.”20 This “more stringent                                               The court then evaluated
fashion,” the court reasoned, considered                                Bruegger’s sentence under its prescribed
the defendant’s personal characteristics                                analytical framework.27 Noting the
in evaluating whether the punishment                                    convergence of all three features during
was cruel and unusual.21 Additionally,                                  Bruegger’s sentencing, the court found
the court noted, “Many state courts have                                Bruegger had a cruel and unusual
also considered whether a criminal                                      punishment challenge and remanded
defendant may attack a sentence as cruel                                the case so an evidentiary hearing could
and unusual punishment as applied.”22                                   be held.28 During the hearing, the State
The court went on to explain that                                       would have an opportunity to present
                                                                        any aggravating factors which would
16 Id. at 874 (citing Woodson v. North Carolina,                        tend to justify the mandatory sentence.29
428 U.S. 280, 303–04 (1976)).
17 Id. at 875–76 (citing Harmelin v. Michigan,                                                                                      
501 U.S. 957 (1991)).                                                   23 Id.
18 See id. at 876 (citing Ewing v. California, 538                      24 Id. at 883–84.
U.S. 11 (2003)).                                                        25 Id. at 884.
19 Id. at 879–82.                                                       26 See id.
20 Id. at 880 (footnote omitted).                                       27 Id. at 884–85.
21 See id. (citations omitted).                                         28 Id. at 885–86.
22 Id.                                                                  29 Id. at 886.

                                                               ~ Eighth Amendment ~

                                                                              period.35 He was required to register on
State v. Tripp, 776 N.W.2d 855                                                the state’s sex offender registry and pay
(Iowa 2010)                                                                   a fine.36 Also, because Tripp was found
                                                                              guilty of a sexual offense, the trial court
       At issue in Tripp was whether a                                        imposed a special sentence pursuant to
sentence imposed on a person convicted                                        Iowa Code section 903B.1 that provided
of sexual abuse in the third degree                                           for imposition of lifetime parole.37 Tripp
pursuant to Iowa Code section 903B.1,                                         appealed.38
which commits the convicted person to
the Director of the Iowa Department of                                                The court first noted in order for
Corrections for a term of life, constitutes                                   it to analyze Tripp’s sentence it would
cruel and unusual punishment in                                               have to assume he will serve lifetime
violation of the prohibitions contained                                       parole.39 The court noted, though, that
in the United States and Iowa                                                 Tripp could be released at any time.40
Constitutions.30                                                              The court would also have to analyze his
                                                                              sentence without knowing any
       The Iowa Supreme Court held the                                        conditions that could be placed on Tripp
challenge to the special sentence                                             in the future.41 Both considerations
provisions included in Iowa Code                                              involved administrative decisions that
section 903B.1, as applied to sexual                                          were not yet made.42 Thus, the court
assault in the third degree pursuant to                                       concluded the case was not ripe for
Iowa Code section 709.4(2)(c)(4), was                                         review because it did not present an
not ripe for adjudication and thus did                                        actual, present controversy, but merely a
not consider whether Tripp’s sentence                                         hypothetical or speculative one.43
was unlawful.31                                                               Requiring a case be ripe is necessary “‘to
                                                                              prevent the courts, through avoidance of
        Tripp had performed a sex act                                         premature adjudication, from
with a fifteen-year-old person when he                                        entangling themselves in abstract
was twenty years old.32 He was charged                                        disagreements over administrative
with third-degree sexual abuse because                                        policies, and also to protect the agencies
he and the victim were not “cohabitating                                      from judicial interference until an
as husband and wife” and he was more                                          administrative decision has been
than four years older than the victim.33                                      formalized and its effects felt in a
Tripp pleaded guilty and received an                                          concrete way by the challenging
indefinite term of incarceration that was                                     parties.’”44 Thus, until the extent of
to last no more than ten years.34 Tripp’s                                     Tripp’s supervision and length of his
incarceration was subsequently                                                parole were set, Tripp’s challenge was
suspended, and he was put on                                                                                                              
supervised probation for a five-year                                          35 Id.
                                                                              36 Id.
                                                                              37 See id.
30 State v. Tripp, 776 N.W.2d 855, 856–57 (Iowa                               38 Id.

2010).                                                                        39 Id. at 858.
31 See id. at 857.                                                            40 Id.
32 Id.                                                                        41 Id. at 858–59.
33 Id.; see also IOWA CODE § 709.4(2)(c)(4)                                   42 Id. at 859.

(2009) (noting the elements of third-degree                                   43 See id. (citing State v. Wade, 757 N.W.2d 618,

sexual abuse).                                                                626–27 (Iowa 2008)).
34 Id.                                                                        44 Id. (citations omitted).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

not ripe.45                                                             In the alternative, Veal argued her
                                                                        counsel was ineffective for failing to
Veal v. State, 779 N.W.2d 63 (Iowa                                      challenge her sentence as illegal.52
                                                                                The district court dismissed
       The issue in Veal was whether the                                Veal’s claim as untimely.53 It held Roper
three-year time restriction in bringing                                 fell short of “‘new law’” and did not
postconviction relief actions applies                                   apply outside the context of death
where the petitioner claims the                                         penalty cases.54 The court of appeals
sentencing judge imposed an illegal                                     affirmed.55 The Iowa Supreme Court
sentence.46 The Iowa Supreme Court,                                     granted further review and reversed.56
reversing the district court, held the
time restriction does not apply to                                               The supreme court first explained
postconviction relief claims under these                                its recent decision, State v. Bruegger,
circumstances.47                                                        held cruel-and-unusual-punishment
                                                                        claims are challenges to “illegal
        The Black Hawk County District                                  sentences” under Iowa Rule of Criminal
Court sentenced Veal to life                                            Procedure 2.24(5)(a).57 Consequently,
imprisonment without the possibility of                                 the true issue in Veal was “whether the
parole following her juvenile conviction                                time limitations of our postconviction
for first-degree murder in 1995.48 In                                   relief statute are applicable to claims
2008, thirteen years later, Veal filed for                              involving illegal sentences.”58 The court
postconviction relief.49 She claimed her                                answered in the negative, holding,
sentence constituted “cruel and unusual                                 “[T]ime restrictions that apply in
punishment in violation of the Eighth                                   ordinary postconviction relief actions do
Amendment to the United States                                          not apply in illegal sentence
Constitution and article I, section 17 of                               challenges.”59 The court went on to
the Iowa Constitution.”50                                               note, “A claim that a sentence is illegal
Acknowledging a three-year statute of                                   goes to the underlying power of the
limitations is imposed upon                                             court to impose a sentence, not simply
postconviction relief actions, Veal                                     to its legal validity.”60 Therefore, the
argued the time restriction should not                                  district court erred in dismissing Veal’s
bar relief because her claim was based                                  postconviction relief claim as untimely.61
upon recent developments in the law.51

45 Id. (citing State v. Bullock, 638 N.W.2d 728,
735 (Iowa 2002)).
46 See Veal v. State, 779 N.W.2d 63, 64 (Iowa                                                                                       
2010).                                                                  52 See id.
47 Id. at 65.                                                           53 Id.
48 Id. at 64.                                                           54 Id.
49 Id.                                                                  55 Id.
50 Id.                                                                  56 Id. at 64–65.
51 Id. Specifically, Veal argued the United States                      57 Id. at 64 (citing State v. Bruegger, 773 N.W.2d

Supreme Court decision in Roper v. Simmons                              862 (Iowa 2009)).
created new law in holding the Cruel and                                58 Id. at 65.

Unusual Punishment Clause prohibits states                              59 Id.

from sentencing juveniles to death. Id. (citing                         60 Id. (citing Bruegger, 773 N.W.2d at 871).

Roper v. Simmons, 543 U.S. 551 (2005)).                                 61 See id.

                                                               ~ Fourteenth Amendment ~

VI.           FOURTEENTH AMENDMENT                                              removal decision on a polygraph
                                                                                examination he failed.4
Reilly v. Iowa District Court for
Henry County, 783 N.W.2d 490                                                           Regarding these latter issues, the
(Iowa 2010)                                                                     court determined (1) Reilly’s due process
                                                                                rights were violated because the
       Reilly was a companion case to                                           department did not comply with most of
Dykstra v. Iowa District Court for                                              the basic requirements of procedural
Jones County.1 Four issues were                                                 due process and (2) the department
presented to the Iowa Supreme Court,                                            could use the results from a polygraph
two of which were briefly addressed                                             examination in reaching its removal
because they had been settled in                                                decision.5
Dykstra.2 The other two issues were
similar to those addressed in Dykstra,                                                  Reilly was convicted of lascivious
but varied enough for the court to                                              acts with a child in violation of Iowa
address more in-depth. One was                                                  Code section 709.8 based on an act that
whether Reilly’s due process rights were                                        took place in March 2001.6 While
violated when the Iowa Department of                                            serving his sentence, the department of
Corrections decided to remove him from                                          corrections determined he needed to
a sex offender treatment program                                                participate in a SOTP.7 As part of his
(SOTP), thereby stopping his ability to                                         treatment, the department administered
accumulate earned time.3 The other was                                          a polygraph examination because
whether it was improper for the                                                 Reilly’s account of the sexual offense for
department of corrections to base its                                           which he was imprisoned differed from
                                                                                his victim’s account.8 Reilly failed the
                                                                                polygraph exam, precipitating his
                                                                                removal from the SOTP.9 Once
1 Reilly v. Iowa Dist. Court for Henry County,
                                                                                removed, his ability to accrue earned
783 N.W.2d 490, 493 (Iowa 2010) (referencing                                    time to reduce his sentence was stopped
Dykstra v. Iowa Dist. Court for Jones County,                                   pursuant to Iowa Code section 903A.2.10
783 N.W.2d 473 (Iowa 2010)). Dykstra is                                         After his removal, his tentative
discussed in Part VII.                                                          discharge date was changed from March
2 See id. at 493. The two issues were whether

application of the 2005 amendment to Iowa
                                                                                2008 to June 2010.11 He was later
Code section 903A.2 to an offense committed                                     reinstated into the SOTP, and his
before the amendment took effect—but after the                                  discharge date was moved to May 2008;
2001 amendment was in place—violated the                                        thus, his temporary removal from the
Iowa and United States Constitutions’ Ex Post                                   SOTP ultimately added two months to
Facto Clauses, and whether the 2005
amendment could retroactively apply to the
                                                                                his sentence.12
defendant’s sentence. Id. (referencing IOWA                                                                                                 
CODE § 903A.2 (Supp. 2005)). The court came                                     4 Id. at 494.
to the same conclusion it had in Dykstra; the Ex                                5 Id. at 498–99.
Post Facto Clauses were not violated and the                                    6 Id. at 492 (referencing IOWA CODE § 709.8

statute could be applied retroactively because                                  (1999)).
the amendment did not change existing law, but                                  7 See id.

merely clarified it. Id. at 494 (citing Holm v.                                 8 Id.

Iowa Dist. Court, 767 N.W.2d 409, 416 n.3 (Iowa                                 9 Id. at 493.

2009)); see also Dykstra, 783 N.W.2d at 478                                     10 Id. (referencing § 903A.2 (Supp. 2005)).

(reaching the same conclusion).                                                 11 Id.
3 Reilly, 783 N.W.2d at 493–94.                                                 12 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

                                                                        removal inevitably affected the duration
        Reilly appealed his removal to the                              of his sentence, something the United
deputy warden, who denied the appeal.13                                 States Supreme Court has found to be a
Reilly subsequently filed a                                             liberty interest of prisoners.21 The Iowa
postconviction petition, but the district                               Supreme Court therefore held Reilly had
court denied it on the merits.14 Reilly                                 a liberty interest in the ability to accrue
appealed.15                                                             earned time as implicated by his
                                                                        removal from the SOTP.22
        Reilly argued because he had a
liberty interest in the ability to                                               The court noted, however, not all
accumulate earned time, the                                             department decisions that implicate
department’s decision to take him out of                                liberty interests require due process
the SOTP—thereby stopping his ability                                   protections.23 Although removal from
to accrue earned time—required a                                        the SOTP implicated a liberty interest, it
greater protection than that afforded by                                was a lesser interest than an initial
the department.16 Specifically, Reilly                                  classification decision requiring a
contended the department was required                                   prisoner participate in a SOTP.24 The
to comply with the requirements                                         removal decision is discretionary, based
advanced in Wolff v. McDonnell:                                         on various considerations, while an
“advance written notice, a written                                      initial inmate classification amounts to a
statement of the reasons relied upon for                                definite factual determination the
his removal, and a hearing before a                                     inmate engaged in behavior that was
neutral fact finder.”17                                                 sexually inappropriate.25 The exercise of
                                                                        the department’s discretion is evident in
        First, the court noted there must                               the facts surrounding Reilly’s removal:
be a liberty interest involved for it to                                after removal, department employees
perform a procedural due process                                        worked with him to remedy the problem
inquiry.18 While the context of the                                     and he was ultimately readmitted to the
department’s actions toward Reilly                                      SOTP.26 Reilly’s prison sentence was
differed from the classification decision                               only affected by two months; thus, “‘the
regarding Dykstra, the court found the                                  stakes and correspondingly the required
loss to essentially be the same—the                                     procedures are diminished.’”27
ineligibility to accumulate earned time.19
When Reilly was removed from the                                                The full panoply of due process
SOTP, his ability to accumulate earned                                  protections that accompany formal
time was impeded pursuant to Iowa                                       hearings are unnecessary for SOTP
Code section 903A.2(1)(a).20 Thus, his                                  removal “because of the nature of the
                                                                        liberty interest at stake, the discretion
13 Id.                                                                  granted to [department] employees, and
14 Id.                                                                                                                              
15 Id.                                                                  21 Id. (citing Sandin v. Conner, 515 U.S. 472, 484,
16 Id. at 494 (citing Holm v. Iowa Dist. Court, 767                     487 (1995)).
N.W.2d 409, 417–18 (Iowa 2009)).                                        22 Id.
17 Id. (citing Wolff v. McDonnell, 418 U.S. 539,                        23 Id.

563–71 (1974)).                                                         24 Id. at 496.
18 Id. (citations omitted).                                             25 Id.
19 Id. at 495.                                                          26 Id. at 497.
20 Id. (referencing IOWA CODE § 903A.2(1)(a)                            27 Id. (quoting Montgomery v. Anderson, 262

(Supp. 2005)).                                                          F.3d 641, 645–46 (7th Cir. 2001)).

                                                               ~ Fourteenth Amendment ~

the professional judgment behind any                                                    Reilly’s other argument was the
removal decision.”28 The court qualified                                        department should not have relied on
this, though, by noting minimum due                                             the polygraph examination results in
process protections must be met; it held                                        making its decision to remove him from
the department “must provide (1)                                                the SOTP.34 The court distinguished
advance notice allowing the inmate time                                         this issue from that in Dykstra. In
to secure documents or prepare a                                                Dykstra, the court held using
statement, (2) an opportunity to present                                        polygraphs as a substitute for due
documentary evidence, letters, or make                                          process protections or as the only
statements before the decision-maker,                                           evidence for deprivations of liberty
and (3) an explanation for the reasons                                          interests may implicate constitutional
behind any removal decision.”29 The                                             concerns.35 However, decisions
court noted a fourth requirement—                                               regarding removal from a SOTP may
“‘sufficiently impartial’” decision                                             consider polygraph exams as an
makers—also existed.30                                                          influencing factor because the exams
                                                                                “serve a rehabilitative purpose within
        The court found the department                                          treatment.”36
process employed to remove Reilly from
the SOTP did not comply with three out                                                  Thus, the court held procedures
of the four procedures required for due                                         employed by the department to remove
process: Reilly was not provided                                                Reilly from the SOTP did not violate his
advance notice he would have the                                                due process rights and the department is
chance to address the removal decision,                                         permitted to consider polygraph exams
he was not allowed to put forth                                                 in making removal decisions.37 The case
documentary evidence or provide a                                               was remanded to the district court to
statement on his own behalf, and it did                                         consider the appropriate remedy.38
not appear the department fully
explained the reasons for his removal
because it merely told him he failed the
polygraph examination.31 The
department’s work with Reilly following
his removal did “not cure the initial
failure to provide him with the reasons
for his removal.”32 In sum, the
department “complied with only one of
the four basic requirements—an
impartial decision maker—and
therefore, Reilly’s due process rights
were violated.”33

28 Id.                                                                          34 Id.
29 Id.                                                                          35 Id. at 499 (citing Dykstra v. Iowa Dist. Court
30 Id. (quoting Wolff v. McDonnell, 418 U.S. 539,                               for Jones County, 783 N.W.2d 473, 486 (Iowa
570–71 (1974)).                                                                 2010)).
31 Id.                                                                          36 Id.
32 Id.                                                                          37 Id.
33 Id. at 498.                                                                  38 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

VII. EX POST FACTO CLAUSE                                               therefore violated the Ex Post Facto
                                                                        Clause.8 According to Marcus, the
United States v. Marcus, 130 S. Ct.                                     constitutional error was “‘plain,’” and
2159 (2010)                                                             therefore his conviction must be set
                                                                        aside.9 In response, the Government
       In Marcus, the defendant was                                     argued it was not unconstitutional to
convicted of violating the Trafficking                                  apply a new statute to a course of
Victims Protection Act of 2000, though                                  conduct as long as that course of
some of his criminal acts occurred prior                                conduct persisted after the statute’s
to the enactment of the Act.1 On appeal,                                enactment.10
he argued the trial judge’s failure to
inform the jury “it could not convict                                          The Second Circuit found “‘even
based on preenactment conduct alone”                                    in the case of a continuing offense, if it
was a “‘plain error’” that violated his                                 was possible for the jury—wh[ich] had
constitutional rights.2 The United States                               not been given instructions regarding
Supreme Court was asked to determine                                    the date of enactment—to convict
whether this “plain error” violated the                                 exclusively on [the basis of] pre-
Ex Post Facto Clause of the United                                      enactment conduct, then the conviction
States Constitution.3 The Court, after                                  constitutes a violation’ of the Ex Post
analyzing the “plain error” doctrine,                                   Facto Clause.”11 That court noted this
held there was no Ex Post Facto Clause                                  was still true under plain error review.12
violation.4 The Court noted if there was                                The Supreme Court granted certiorari.13
any constitutional claim, it was a due
process claim, but even then the “plain                                        The Court first addressed the
error” doctrine would not be violated.5                                 “plain error” framework, noting Rule
                                                                        52(b) of the Federal Rules of Criminal
       Marcus was convicted of                                          Procedure allows an appellate court to
engaging in unlawful forced labor and                                   identify a plain error affecting
sex trafficking regarding acts that                                     substantial rights regardless of whether
occurred “between ‘January 1999 and                                     the claim of error had been brought to
October 2001.’”6 On appeal, Marcus                                      the attention of the district court.14 The
noted for the first time the statutes he                                Court noted the error at issue here
violated did not become law until                                       created a risk the jury would convict
October 2000; therefore, the evidence                                   Marcus based solely on conduct that had
that had been presented at trial allowed                                not been classified as criminal when he
the jury to convict him based exclusively                               engaged in it.15 It determined a judge
on actions he took before October                                       may have eliminated this risk by
2000.7 He argued his conviction                                         properly instructing the jury.16
1 United States v. Marcus, 130 S. Ct. 2159, 2163                        8 Id.
(2010) (referencing 22 U.S.C. § 7101 (2006)).                           9 Id. (citation omitted).
2 Id.                                                                   10 Id. (citations omitted).
3 Id. (referencing U.S. CONST. art. I, § 9, cl. 3).                     11 Id. (quoting United States v. Marcus, 538 F.3d
4 Id. at 2165 (citing Marks v. United States, 430                       97, 101 (2nd Cir. 2008)).
U.S. 188, 191 (1977)).                                                  12 Id. (citing Marcus, 538 F.3d at 101).
5 Id. (citing Bouie v. City of Columbia, 378 U.S.                       13 Id. at 2164.

347, 353–54 (1964)).                                                    14 Id.; see FED. R. CRIM. P. 52(b).
6 Id. at 2163 (citations omitted).                                      15 Id. at 2165.
7 Id.                                                                   16 Id.

                                                               ~ Ex Post Facto Clause ~

However, the Court dismissed Marcus’s                                          not in prison for a sex offense.23 The
Ex Post Facto Clause violation                                                 court also considered whether certain
argument—and any potential due                                                 procedures the Iowa Department of
process claim he may have had—because                                          Corrections used to determine it was
it found no reason why this type of error                                      necessary he participate in a sex
would “‘affect substantial rights’ without                                     offender treatment program (SOTP)
a showing of individual prejudice.”17                                          violated due process.24 The final issue
                                                                               the court considered was whether the
        The Court noted errors such as                                         department’s reliance on a polygraph
that at issue here—the risk a defendant                                        examination to make its determination
is convicted based solely on noncriminal                                       was inappropriate.25
conduct—come in various forms, and a
proper jury instruction may not always                                                 The court addressed each issue in
avoid harm.18 Thus, there is no reason                                         turn, finding first there was no violation
to believe “all or almost all such errors                                      of either Ex Post Facto Clause when the
always ‘affec[t] the framework within                                          statute was applied to offenses that
which the trial proceeds.’”19 Further, the                                     occurred before the 2005 amendment
Court noted the rights at issue here did                                       but after a 2001 amendment.26 Next,
not differ significantly from                                                  the court determined the amended
“constitutional rights at issue in other                                       statute could be applied retroactively.27
cases where we have insisted upon a                                            Regarding Dykstra’s claim the statute
showing of individual prejudice.”20                                            was improperly applied, the court found
                                                                               the department was authorized to make
Dykstra v. Iowa District Court for                                             a determination regarding whether his
Jones County, 783 N.W.2d 473                                                   offense included a sexual element.28
(Iowa 2010)                                                                    However, it did find this classification
                                                                               violated due process.29 Finally, the court
       The Iowa Supreme Court was                                              held the department was able to use
presented with several issues in                                               polygraph examination results in
Dykstra. The first was whether the                                             coming to its classification
application of a 2005 amendment to                                             determination, though that
Iowa Code section 903A.2 to a crime                                            determination had to be limited by the
that occurred prior to 2005 violated                                           requirements of due process.30
both Iowa’s and the United States’ Ex
Post Facto Clauses.21 The second was                                                  In 2005, Dykstra pleaded guilty
whether the amendment should be                                                to simple assault and dependent adult
applied retroactively.22 Next, the court                                       abuse charges.31 The former was
addressed Dykstra’s claim the statute                                          pleaded down from a third-degree
was improperly applied because he was                                          sexual abuse charge, and the latter arose
17 Id.                                                                         23 Id.
18 Id. at 2166.                                                                24 Id.
19 Id. (quoting Arizona v. Fulminante, 499 U.S.                                25 Id.

279, 310 (1991)).                                                              26 Id.
20 Id. (citing Fulminante, 499 U.S. at 306–07).                                27 Id.
21 Dykstra v. Iowa Dist. Court for Jones County,                               28 Id. at 479.

783 N.W.2d 473, 478 (Iowa 2010) (citing IOWA                                   29 Id. at 485.

CODE § 903A.2 (Supp. 2005)).                                                   30 Id. at 486.
22 Id.                                                                         31 Id. at 476.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

from his failure to pay a nursing home                                          Under a 2001 amendment to
bill incurred by his wife.32 The simple                                 Iowa Code section 903A.2, “an inmate
assault carried a thirty-day sentence,                                  serving a category ‘A’ sentence [is]
and the dependent adult abuse                                           ‘eligible for a reduction of sentence
conviction carried a term not to exceed                                 equal to one and two-tenths days for
five years.33 After completing the thirty-                              each day the inmate demonstrates good
day sentence, but while still in prison                                 conduct and satisfactorily participates in
serving the dependent adult abuse                                       any program or placement status
sentence, Dykstra was informed he                                       identified by the director to earn the
would need to participate in a SOTP.34                                  reduction.’”42 The department of
The recommendation was based on                                         corrections applied the statute so a
allegations related to the simple assault,                              refusal to attend a SOTP resulted in the
his previous charges and convictions,                                   loss of ninety days of earned time but
and his inclusion on Iowa’s sex offender                                would not affect an inmate’s ability to
registry.35                                                             accumulate time in the future.43 In
                                                                        2005, section 903A.2(1)(a) was again
        Dykstra objected to participating                               amended to read: “‘[A]n inmate
in the SOTP, arguing there was no                                       required to participate in a sex offender
sexual element contained in the simple                                  treatment program shall not be eligible
assault.36 The department of corrections                                for a reduction of sentence unless the
administered a polygraph examination                                    inmate participates in and completes a
to Dykstra regarding the facts involved                                 sex offender treatment program . . . .’”44
in the simple assault, which he did not                                 Under this amendment, an inmate can
pass.37 Because of his refusal to                                       no longer accrue earned time after his or
participate in the SOTP, Dykstra’s                                      her refusal to attend a SOTP; however,
discharge date was moved from January                                   refusal does not affect previously
2008 to May 2010.38 Dykstra appealed                                    accrued earned time.45
the decision to the deputy warden.39
After the appeal was denied, he filed a                                        Regarding Dykstra’s Ex Post
postconviction petition but was denied                                  Facto Clause claim, the court cited prior
relief by the district court.40 He then                                 case law holding the Clause is not
filed a writ of certiorari that challenged                              violated when the 2005 amendment is
the district court’s denial.41                                          applied to inmates whose offenses
                                                                        occurred before the 2005 amendment
                                                                        took effect but after the 2001
                                                                        amendment did.46 The court
32 Id.                                                                  determined “[t]he 2005 amendment was
33 Id.
34 Id.                                                                  ‘merely a clarification of the 2001
35 Id. Regarding the simple assault allegations,                        amendment,’” so it was not considered
Dykstra’s wife reported she was forced against
her will “to perform oral sex on Dykstra.” Id.                                                                                      
One of the previous convictions was for indecent                        42 Id. (quoting IOWA CODE § 903A.2(1)(a) (2001))
exposure, a sex offense. Id. at 476, 483.                               (emphasis added).
36 Id.                                                                  43 Id. (citing Holm v. Iowa Dist. Court, 767
37 Id. at 476–77.                                                       N.W.2d 409, 415 (Iowa 2009)).
38 Id. at 477.                                                          44 Id. at 478 (quoting § 903A.2(1)(a) (Supp.
39 Id.                                                                  2005)).
40 Id.                                                                  45 Id.
41 Id.                                                                  46 Id. (citing Holm, 767 N.W.2d at 417).

                                                               ~ Ex Post Facto Clause ~

more onerous punishment.47 Thus, the                                           department was statutorily authorized
department was found to not have                                               to make.54
violated either the state or federal
clause.48                                                                              In analyzing Dykstra’s due
                                                                               process claim, the court determined
        The court also held the                                                there was a liberty interest at stake,
amendment could be applied                                                     noting the ability to accumulate earned
retroactively because it did not change                                        time has been considered as such.55 A
existing law; the amendment merely                                             liberty interests has also been found in
clarified and corrected the department’s                                       the classification of an inmate as a sex
application of existing law.49                                                 offender, thus requiring participation in
                                                                               a SOTP.56 In Dykstra’s case, “[t]he
        In response to Dykstra’s                                               stigmatizing consequence of being
argument he should not have been                                               labeled as a sex offender, the mandatory
subjected to a SOTP because he was not                                         behavior modification treatment, and
convicted of a sex-related crime, the                                          the revocation of [his] ability to earn any
court determined the department was                                            time should he refuse to participate in
not prevented from recommending a                                              SOTP” were found to implicate his
SOTP for a crime not considered a sex                                          liberty interest.57
offense when the facts surrounding the
crime were sexual in nature.50 Dykstra                                                The court addressed Dykstra’s
responded by arguing the department                                            claim the department “relied on factual
did not have the authority to impede his                                       allegations to which he had never
ability to accumulate earned time                                              admitted and no court had determined
regarding a non-sex-related sentence.51                                        were accurate” in determining he should
He argued by the time he was referred to                                       participate in a SOTP, noting other
a SOTP, he was solely serving a sentence                                       courts had determined corrections
for a crime that was non-sex-related—                                          departments violate due process when
the dependent adult abuse conviction.52                                        they classify inmates with no sex-offense
The court, though, noted section 903A.2                                        convictions for SOTPs if the
does not require a sentence be                                                 departments fail to afford the
connected to the reason the department                                         procedural due process requirements
required an inmate attend a SOTP.53                                            identified in Wolff v. McDonnell.58
The department determined Dykstra’s                                                                                                        
simple assault conviction included a                                           54 Id. (quoting State v. Valin, 724 N.W.2d 440,

sexual element and thus “revealed a                                            447 (Iowa 2006)).
                                                                               55 Id. at 480 (citing Holm v. Iowa Dist. Court,
‘problem currently suffered,’” a
                                                                               767 N.W.2d 409, 417–18 (Iowa 2009)).
determination the court concluded the                                          56 Id.
                                                                               57 Id. at 481 (quoting Wolff v. McDonnell, 418

                                                                               U.S. 539, 557 (1974)).
                                                                               58 Id. at 481–82 (citations omitted). The

                                                                               procedural due process requirements identified
47 Id. (quoting Holm, 767 N.W.2d at 416–17).                                   in Wolff include:
48 Id. (citing Holm, 767 N.W.2d at 417).
49 Id. (citing Holm, 767 N.W.2d at 416 n.3).                                                 (1) advance written notice of the
50 Id. at 479.                                                                               claimed violation, (2) a written
51 Id.                                                                                       statement of the factfinders as
52 Id.                                                                                       to the evidence relied upon and
53 Id.                                                                                       the reasons for the disciplinary

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                                          

                                                                                                  department’s actual reliance on the
        The court held, “Dykstra was                                                              unproven factual allegations regarding
entitled to due process because his                                                               the simple assault could not be
liberty interest in earned time was                                                               considered harmless error.62 Because it
affected by his classification as required                                                        could not say how the department would
to participate in SOTP,” and his due                                                              have exercised its discretion had there
process rights were violated because he                                                           been no facts surrounding the
was not afforded the protections of                                                               conviction for simple assault, the court
Wolff.59 The State argued the                                                                     held Dykstra’s classification had violated
department cold have relied on                                                                    due process.63
Dykstra’s prior sex-offense conviction—
indecent exposure—to determine he was                                                                     The court held the department
“‘required’” to take part in a SOTP,                                                              could not substitute polygraph tests for
regardless of whether it provided any                                                             the procedural protections Wolff
additional process.60 In effect, the State                                                        require.64 However, the court did not go
argued Dykstra was afforded procedural                                                            so far as to hold polygraphs could not be
protections regarding his prior sex-                                                              used. It left the decision to admit such
offense conviction, and that he therefore                                                         evidence at classification hearings to the
was not entitled to additional                                                                    discretion of the department, noting
procedures before being classified as                                                             though, such discretion must be
obligated to participate in a SOTP.61                                                             “bounded by the limits of due process.”65

      The court found that even if the                                                                   The court concluded neither Ex
department were able to rely wholly on                                                            Post Facto Clause was violated when
Dykstra’s prior conviction, the                                                                   Dykstra was required to participate in
                                                                                                  the SOTP, though he was deprived of
                                                                                                  due process when the department relied
              action taken, (3) a hearing, at
              which the inmate must be
                                                                                                  on unproven factual allegations in
              allowed to call witnesses and                                                       reaching its decision to require his
              present documentary evidence,                                                       participation.66 Because Dykstra’s due
              as long as it would not be                                                          process right was violated, the case was
              unduly hazardous, and (4) a                                                         remanded to the district court so that
              sufficiently impartial decision
                                                                                                  court could consider the appropriate
Id. at 482 (citing Wolff, 418 U.S. at 563–71).
59 Id. at 483. Dykstra was not given the
opportunity to call witnesses or present
documentary evidence, nor was he given notice
of the meetings held regarding his classification.
Id. He was given a generalized refusal form that
noted the potential reasons for the classification
but not a written statement of specific evidence                                                                                                              
used to determine the classification. Id. The                                                     62 Id. at 484.
court withheld judgment on whether Dykstra                                                        63 Id. at 485 (citing State v. Martens, 569 N.W.2d
was afforded an impartial decision maker but                                                      482, 485 (Iowa 1997)).
noted the department employee making the                                                          64 Id. (citing State v. Conner, 241 N.W.2d 447,

recommendation for a SOTP should not be a                                                         458–59 (Iowa 1976)).
decision maker. Id.                                                                               65 Id. at 486.
60 Id.                                                                                            66 Id.
61 Id. at 483–84.                                                                                 67 Id.

                                                               ~ Habeas Corpus ~

VIII.                HABEAS CORPUS                                          Canadian authorities agreed to extradite
Beard v. Kindler, 130 S. Ct. 612
(2009)                                                                             Before he could be transferred to
                                                                            the United States, though, Kindler
        The United States Supreme Court                                     escaped again.11 He was caught two
in Beard v. Kindler considered whether                                      years later, still in Canada.12 After three
a state procedural rule is “automatically                                   years of litigation, Canadian officials
‘inadequate’ under the adequate-state-                                      extradited him to the United States.13
grounds doctrine—and therefore
unenforceable on federal habeas corpus                                              During this time, the trial court in
review—because the state rule is                                            Pennsylvania had dismissed Kindler’s
discretionary rather than mandatory.”1                                      postconviction motions due to his
The Court held discretionary state                                          original escape.14 Once he was returned
procedural rules can serve as adequate                                      to the United States, Kindler sought to
grounds to prohibit federal habeas                                          reinstate those challenges.15 The
review.2                                                                    reinstatement motion was denied by the
                                                                            trial court; the trial court judge who
        In 1982, Kindler, along with two                                    dismissed the postverdict motions while
accomplices, burglarized a store in                                         Kindler was in Canada was found not to
Pennsylvania.3 Police stopped the                                           have abused his discretion.16 In October
getaway vehicle and arrested Kindler’s                                      1991, seven years after the original death
accomplices, but Kindler escaped.4                                          recommendation, the court imposed the
Police later arrested Kindler, charging                                     death sentence.17
him with burglary.5 He was released
after posting bail and subsequently                                                 On appeal, Kindler argued the
attacked and brutally murdered one of                                       trial court erred when it declined to
his accomplices to prevent him from                                         address the merit of his postverdict
testifying.6 Kindler stood trial and was                                    motions.18 His conviction was
convicted of capital murder.7 The jury                                      confirmed by the Pennsylvania Supreme
recommended the death penalty, and                                          Court: “‘[T]rial courts, when faced with
Kindler filed postconviction motions                                        a defendant in fugitive status, . . . have
against the sentence.8 However, before                                      every right to fashion an appropriate
the trial court was able to consider the                                    response[,] which can include the
motions and the jury’s recommendation,                                      dismissal of pending post-verdict
Kindler escaped to Canada where he                                          motions.’”19 The Pennsylvania Supreme
remained a fugitive until his arrest in                                                                                                 
Quebec for separate burglaries.9                                            10 Id. (citing Kindler, 639 A.2d at 2).
                                                                            11 See id.
1 Beard v. Kindler, 130 S. Ct. 612, 614–15 (2009).                          12 Id. at 616 (citing Commonwealth v. Kindler,
2 Id. at 618.                                                               722 A.2d 143, 145 (Pa. 1998)).
3 Id. at 615.                                                               13 Id. (citations omitted).
4 Id.                                                                       14 Id.
5 Id.                                                                       15 Id.
6 Id. (citing Commonwealth v. Kindler, 639 A.2d                             16 Id.

1, 5–6 (Pa. 1994)).                                                         17 Id. (citation omitted).
7 Id.                                                                       18 Id.
8 Id. (citing Kindler, 639 A.2d at 2).                                      19 Id. (quoting Commonwealth v. Kindler, 639
9 Id. (citations omitted).                                                  A.2d 1, 3 (Pa. 1994)).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

Court then conducted the “limited                                               The Court held a discretionary
review” required for death sentences                                    rule is able to be both “firmly
under state law and determined “the                                     established” and “regularly followed”
evidence was sufficient to support the                                  even if discretion permits “consideration
conviction of first-degree murder and at                                of a federal claim in some cases but not
least one aggravating factor, and that the                              others.”28 Thus, such a discretionary
sentence was not excessive,                                             state procedural ruling, like that issued
disproportionate, or the product of                                     in Kindler’s case, can bar federal habeas
passion or prejudice.”20                                                review.29

       Kindler next sought federal                                            The Court reasoned a contrary
habeas relief.21 The federal district court                             holding would likely pose an
determined the Pennsylvania fugitive                                    unnecessary dilemma:
forfeiture rule lacked an adequate basis
to prohibit federal review of the                                                     States      could   preserve
defendant’s habeas claims and went on                                                 flexibility    by   granting
to address the merits.22 The court                                                    courts discretion to excuse
granted Kindler’s petition, finding he                                                procedural errors, but only
was sentenced based on                                                                at the cost of undermining
unconstitutional jury instructions and                                                the finality of state court
an aggravating factor was improperly                                                  judgments.        Or States
introduced by the prosecutor at                                                       could preserve the finality
sentencing.23                                                                         of their judgments by
                                                                                      withholding             such
      The Third Circuit affirmed.24 The                                               discretion, but only at the
Supreme Court granted certiorari,                                                     cost of precluding any
vacated the Third Circuit’s judgment,                                                 flexibility in applying the
and remanded the case.25                                                              rules.30

       When a state procedural ruling is                                The Court emphasized discretionary
challenged as inadequate, such a                                        rules are oftentimes desirable.31 In
determination is “a question of federal                                 many instances, rigid rules would likely
law.”26 The Supreme Court considers                                     impair the ability of trial judges to deal
whether the challenged state rule “was                                  justly with a particular issue.32
‘firmly established and regularly                                       Furthermore, “[i]n light of federalism
followed.’”27                                                           and comity concerns that motivate the
                                                                        adequate state ground doctrine in the
                                                                        habeas context,” it would be illogical to
                                                                        disregard state procedural rules
20 Id. (citing Kindler, 639 A.2d at 4).                                 substantially similar to those given full
21 Id. at 617.
22 Id. (citing Kindler v. Horn, 291 F. Supp. 2d                                                                                     
323, 340–43, 346–51 (E.D. Pa. 2003)).                                   28 Id. at 618 (citing Daniel J. Meltzer, State
23 Id. (citations omitted).                                             Court Forfeitures of Federal Rights, 99 HARV. L.
24 Id.                                                                  REV. 1128, 1140 (1986)).
25 Id. at 617, 619.                                                     29 See id.
26 Id. at 617 (citing Lee v. Kemna, 534 U.S. 362,                       30 Id.

375 (2002)).                                                            31 Id.
27 Id. at 617–18 (citations omitted).                                   32 Id. (citations omitted).

                                                               ~ Habeas Corpus ~

force in federal courts.33                                                  violation rendered them moot.40

Corcoran v. Levenhagen, 130 S. Ct.                                                 The Seventh Circuit reversed
8 (2009)                                                                    without mentioning Corcoran’s other
                                                                            claims and “remanded ‘with instructions
        At issue in Corcoran v.                                             to deny the writ,’” holding the Indiana
Levenhagen was whether the Seventh                                          courts were free to reinstate the death
Circuit erred when it rejected, without                                     sentence.41 Corcoran sought rehearing,
explanation, several of the claims of a                                     arguing the Seventh Circuit should have
prisoner seeking habeas relief.34 The                                       permitted the district court to hear his
United States Supreme Court held the                                        other attacks on his sentence.42 The
Seventh Circuit erred when it disposed                                      rehearing was denied by the Seventh
of the claims without any explanation.35                                    Circuit.43 Again, no reference was made
                                                                            to Corcoran’s undecided claims.44
        Corcoran was convicted of four
counts of murder and sentenced to                                                   The Supreme Court granted
death.36 After exhausting his state                                         certiorari and held the Seventh Circuit
remedies, he sought federal habeas                                          erred when it dismissed Corcoran’s
relief.37 He argued the following in his                                    other claims without any sort of
petition for federal habeas relief: “(1)                                    explanation.45 The Court noted the
the Indiana trial court committed                                           district court should have been
various errors at the sentencing phase;                                     permitted by the Seventh Circuit to
(2) his sentence violated the Sixth                                         consider the unresolved challenges to
Amendment; (3) Indiana’s capital                                            Corcoran’s death sentence on remand.46
sentencing statute was unconstitutional;                                    If not, the Seventh Circuit should have
(4) the prosecution committed                                               explained why consideration was
misconduct at sentencing; and (5) he                                        unnecessary.47
should not be executed because he
suffers from a mental illness.”38 Habeas                                    Wellons v. Hall, 130 S. Ct. 727
relief was granted by the district court                                    (2010)
on Corcoran’s Sixth Amendment claim,
and the state courts were ordered to                                               At issue in Wellons v. Hall was
sentence him “to a penalty other than                                       whether a bar to federal habeas review is
death.”39 Corcoran’s other arguments                                        created when a state court declines to
for habeas relief were not addressed by                                     review the merits of a petitioner’s claim
the district court; the resentencing order                                  on the ground it has done so already.
regarding the Sixth Amendment                                               The United States Supreme Court held
                                                                            no bar is created and remanded the case.
33 Id. (citations omitted).                                                                                                             
34 Corcoran v. Levenhagen, 130 S. Ct. 8, 9                                  40 Id. (citing Corcoran, 483 F. Supp. 2d at 734).
(2009).                                                                     41 Id. (quoting Corcoran v. Buss, 551 F.3d 703,
35 Id.                                                                      712, 714 (7th Cir. 2008)).
36 Id.                                                                      42 Id.
37 Id.                                                                      43 Id.
38 Id. (citing Corcoran v. Buss, 483 F. Supp. 2d                            44 Id.

709, 719, 726 (N.D. Ind. 2007)).                                            45 Id.
39 Id. (citing Corcoran, 483 F. Supp. 2d at 725–                            46 Id.

26).                                                                        47 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

        Petitioner Wellons was convicted
of rape and murder and sentenced to                                             The Supreme Court determined
death.48 After the trial, Wellons’s                                     the Eleventh Circuit’s ruling was in error
counsel learned there had been                                          under Cone v. Bell, 129 S. Ct. 1769
unreported ex parte contacts between                                    (2009), which established: “When a
the jury and the judge, jurors and a                                    state court declines to review the merits
bailiff had planned a reunion, and                                      of a petitioner’s claim on the ground
“either during or immediately following                                 that it has done so already, it creates no
the penalty phase, some jury members                                    bar to federal habeas review.”58
gave the trial judge chocolate shaped as                                Furthermore, because the Eleventh
male genitalia and the bailiff chocolate                                Circuit’s erroneous finding of a
shaped as female breasts.”49 The trial                                  procedural bar precluded any need to
judge did not report this to the                                        review the inmate’s entitlement to an
defense.50                                                              evidentiary hearing, there was at least a
                                                                        reasonable probability the denial of
        It had not been determined                                      discovery and an evidentiary hearing
exactly what prompted the gifts.51                                      rested in part on the error warranting a
Wellons raised the misconduct issue on                                  redetermination which could have
direct appeal but was constrained by the                                decided the ultimate outcome.59 The
nonexistent record, and the state                                       Eleventh Circuit relied on the evidence
supreme court affirmed his conviction                                   presented to the Georgia Supreme
and sentence.52 He sought state habeas                                  Court.60 Thus there was a strong
relief and moved to develop evidence,                                   likelihood “it necessarily relied on the
but the court held the matter had                                       very holes in the record that Wellons
already been decided on appeal and thus                                 was trying to fill.”61
res judicata applied.53 He then raised
the issue in his federal habeas petition,
seeking discovery and an evidentiary
hearing.54 But the district court held
Wellons’s claims were procedurally
barred and denied his motion for an
evidentiary hearing.55 Before the
Eleventh Circuit, Wellons contended the
district court erred in denying his
requests to develop his judge, juror, and
bailiff misconduct claims.56 The court
disagreed, holding Wellons’s claims
were procedurally barred.57
48 Wellons v. Hall, 130 S. Ct. 727, 729 (2010).
49 Id.
50 Id.
51 Id.
52 Id.
53 Id.                                                                                                                              
54 Id.                                                                  58 Id. at 730.
55 Id.                                                                  59 Id.
56 Id.                                                                  60 Id. at 731.
57 Id.                                                                  61 Id.

                                                               ~ Evidentiary Issues ~

IX. EVIDENTIARY ISSUES                                                        wearing that night.9 She also vividly
                                                                              remembered the man “stunk real, real
McDaniel v. Brown, 130 S. Ct. 665                                             bad” of “cologne, or some beer or puke
(2010)                                                                        or something.”10 However, some
                                                                              evidence did not inculpate Troy.11
        At issue in Brown was whether                                         Notably, the only usable fingerprint
the lower courts erred in concluding the                                      taken from the crime scene did not
defendant was entitled to habeas corpus                                       match Troy’s, and the police did not find
relief based on insufficiency of the                                          Troy’s fingerprints anywhere at the
evidence. The United States Supreme                                           crime scene.12
Court held the defendant was not
entitled to habeas relief and reversed the                                            The State’s expert determined the
lower courts’ grant of habeas relief.                                         DNA recovered from Jane’s underwear
                                                                              matched Troy and the probability
        Troy Brown was convicted of                                           another person from the general
raping a nine-year-old girl in her home.1                                     population would share the same DNA
Troy and his brother, Travis, resided                                         was only 1 in 3,000,000.13 Troy’s
near Jane Doe, the victim.2 On the night                                      counsel did not call a DNA expert at
of the assault, Troy consumed at least                                        trial, but he did consult with an expert
ten shots of vodka followed by beer                                           who found no problems with the State’s
chasers, and was so drunk he vomited                                          testing procedures.14 At some time
on himself while he was walking home.3                                        before sentencing, Troy’s family had
The bedroom where the rape occurred                                           additional DNA testing done.15 That
was dark, and Jane was unable to                                              testing showed semen taken from the
conclusively identify her assailant.4                                         rape kit matched Troy’s DNA, with a
When asked whom he reminded her of,                                           random match probability of 1 in
she mentioned both Troy and his other                                         10,000.16 The jury found Troy guilty of
brother Trent.5 Several days after the                                        sexual assault and sentenced him to life
rape, she identified a man she saw on                                         with the possibility of parole after ten
television—Troy—as her assailant but                                          years.17
then stated the man who had sent her
flowers attacked her.6 Trent had sent                                                 After exhausting his state
her flowers, not Troy.7 She was not able                                      postconviction relief options, Troy filed
to identify Troy in a photo lineup, nor                                       a petition for federal habeas corpus,
could she identify her assailant at trial.8                                   claiming there was insufficient evidence
The night of the rape, however, she said                                      to support his conviction.18 The district
her attacker was wearing dark jeans, a                                        court set aside the State’s DNA
black jacket with a zipper, boots, and a                                      testimony and held that without the
watch—items Doe witnessed Troy                                                                                                            
                                                                              9 See id.
                                                                              10 Id.
1 Warden v. Brown, 130 S. Ct. 665, 667 (2010).                                11 Id.
2 Id.                                                                         12 Id.
3 Id.                                                                         13 Id.
4 Id.                                                                         14 Id.
5 Id.                                                                         15 Id.
6 Id. at 667–68.                                                              16 Id.
7 Id. at 669.                                                                 17 Id.
8 Id.                                                                         18 Id. at 669.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

DNA evidence “a reasonable doubt                                        interest.26 Paredes claimed the district
would exist in the mind of any                                          court erred in excluding exculpatory
rational trier of fact”, and therefore                                  statements made by his girlfriend,
habeas relief was appropriate under                                     Millard, which tended to inculpate
Jackson v. Virginia, 443 U.S. 307                                       Millard.27 The Iowa Supreme Court,
(1979).19                                                               reversing and remanding, held the
                                                                        statements should have been admitted
        The Supreme Court concluded                                     under Iowa Rule of Evidence
the district court misapplied Jackson.20                                5.804(b)(3).28
The Court noted it was improper to
entirely exclude the DNA testimony.21 It                                        Paredes and Millard had a two-
was never even contested the DNA                                        month-old infant.29 On April 24, 2005,
evidence matched Troy.22 The DNA                                        Millard called authorities requesting an
evidence thus remained powerful                                         ambulance to take her baby to the
inculpatory evidence even though the                                    hospital.30 Medical personnel diagnosed
State’s expert overstated its probative                                 the infant as suffering from shaken-baby
value. And the defendant’s expert’s                                     syndrome.31 That evening, Chad
claim that the State’s expert used faulty                               Bollweg of the Iowa Department of
assumptions and underestimated the                                      Human Services and Detective Robbie
probability of a DNA match between                                      Swank of the Coralville Police
brothers indicated two experts did not                                  Department met with Paredes and
agree with one another, not that the                                    Millard.32 During the meeting, Parades
State’s estimates were unreliable.23 The                                and Millard admitted they were the
Court concluded: “[A]mple DNA and                                       child’s sole caregivers during the time
non-DNA evidence in the record                                          period in question.33 The next day,
adduced at trial supported the jury’s                                   Parades told authorities he caused the
guilty verdict under Jackson . . . .”24 The                             baby’s injuries and ultimately signed a
court of appeals holding was reversed,                                  written statement describing the
and the case was remanded.25                                            incident.34

State v. Paredes, 775 N.W.2d 554                                               A week later, on May 1, 2005,
(Iowa 2009)                                                             Millard contacted Susan Gail, a social
                                                                        worker with whom Millard had prior
       In this appeal arising from a                                    contact.35 Millard and Gail discussed
conviction for child endangerment                                       the circumstances surrounding the
resulting in serious injury, the Iowa                                   baby’s injuries.36 During the discussion,
Supreme Court interpreted Iowa Rule of
Evidence 5.804(b)(3), which permits                                     26 State v. Paredes, 775 N.W.2d 554, 559–61
hearsay statements against penal                                        (Iowa 2009).
                                                                        27 Id. at 561–62.
                                                                        28 See id. at 571.

                                                                        29 Id. at 558.
19 Id. at 669–70.                                                       30 See id.
20 Id. at 672.                                                          31 Id.
21 Id. at 672–73.                                                       32 Id.
22 Id. at 673.                                                          33 Id.
23 Id.                                                                  34 Id.
24 Id. at 675.                                                          35 Id. at 559.
25 Id.                                                                  36 Id.

                                                               ~ Evidentiary Issues ~

Millard made statements that ultimately                                                     it, she would go to prison
became the focus on appeal.37 Gail                                                          when she is 18. I told her
drafted a memorandum describing the                                                         that she needed to talk to
conversation between her and Millard:                                                       her attorney. I told her
                                                                                            that she would not get the
              She said she did not know,                                                    baby back and she said
              but her boyfriend (Edwin,                                                     that she knew that. She
              I think) was in jail for it.                                                  asked me what would
              She said that he did not do                                                   happen to her if it was
              it, though. She then asked                                                    found that she did hurt the
              me if her diagnosis was                                                       baby. I told her that I
              Multiple        Personality                                                   didn’t know, but more
              Disorder,           because                                                   than likely she would go to
              sometimes she doesn’t                                                         Toledo until she turned 18.
              remember what she does.
              I asked her if she meant                                                              . . . Cassidy told me
              like    the    time     she                                                   that she has been crying
              threatened to kill/stab me.                                                   for a week because she
              (This was when she was in                                                     does      not    want      her
              Valley Shelter 2 years ago.)                                                  boyfriend to take the fall
              She said yes, that’s what I                                                   for this. She said that he is
              mean.                                                                         not that kind of guy, not
                                                                                            violent.      She said that
                             ....                                                           Edwin didn’t even take
                                                                                            care of the baby that much.
                      . . . She told me she                                                 She kept saying, “if I did
              knows Edwin would not                                                         it.”38
              hurt the baby and hinted
              around that maybe she did                                              On the day of the trial, the State
              it, but didn’t remember. I                                      sought to exclude Gail’s testimony
              asked about the day that it                                     describing the conversation she had
              happened. I asked her if                                        with Millard.39 The court sustained the
              the baby was crying. She                                        motion, holding the testimony was
              told me that he cried all                                       inadmissible hearsay.40 The following
              the time, he was colicky                                        day, Paredes filed a motion to
              [sic]. She said that she just                                   reconsider.41 He argued he was not
              yelled at him to “shut up”,                                     offering Gail’s testimony for the truth of
              but never hit him. She                                          the matter asserted.42 The court
              then said that she had                                          rejected his motion and held Gail’s
              started       spanking   him                                    testimony inadmissible hearsay.43 The
              lately, but that it did not                                     court of appeals affirmed on the grounds
              hurt him since he had on a
              big diaper. . . . Cassidy                                       38 Id.
              was afraid that if she told                                     39 Id.
              that she might have done                                        40 Id. at 560.
                                                                              41 Id.

                                                                              42 Id.
37   See id.                                                                  43 See id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

Paredes failed to establish the necessary                               5.804(b)(3).48 The duty of the district
foundation that Millard was, in fact,                                   court is to examine the narratives under
unavailable for trial.44                                                review and “admit the wheat and discard
                                                                        the chaff.”49
      Iowa Rule of Evidence
5.804(b)(3) is an exception to the                                              Turning to the “adversity”
hearsay rule which permits the                                          requirement, the court explained the
introduction of:                                                        “adversity requirement implicitly
                                                                        demands that the person knew or at
              A statement which was at                                  least believed that the statement was
              the time of its making so                                 against penal interest at the time it was
              far     contrary     to     the                           made.”50 The court went on to explain
              declarant’s pecuniary or                                  that the statement need not rise to the
              proprietary interest, or so                               level of a full-blown confession in order
              far tended to subject the                                 to fall within the Rule.51 Although
              declarant to civil or                                     declarants may have a motive to
              criminal liability . . . that a                           fabricate their statements to exculpate
              reasonable person in the                                  the defendant, such credibility
              declarant’s position would                                determinations were held to be in the
              not     have     made       the                           province of the jury.52
              statement unless believing
              it to be true. A statement                                       The court then examined the
              tending to expose the                                     corroborating circumstances
              declarant     to     criminal                             requirement.53 The court concluded
              liability and offered to                                  “the best approach to determining
              exculpate the accused is                                  whether a statement is adequately
              not admissible unless                                     corroborated appears to be a
              corroborating                                             multifactored test in which all evidence
              circumstances           clearly                           bearing on the trustworthiness of the
              indicate                    the                           underlying statement may be
              trustworthiness of the                                    considered.”54 In analyzing the
              statement.45                                              trustworthiness of the statements,
                                                                        courts may consider the following:
After briefly discussing the historical
underpinnings of the Rule,46 the Iowa                                                 (1) whether there is any
Supreme Court interpreted each                                                        apparent motive for the
element. The court first addressed the                                                out-of-court declarant to
meaning of the term “‘statement.’”47                                                  misrepresent the matter, .
The court held “only inculpatory                                                      . . (2) the general character
statements and the collateral material
necessary to provide context to the                                                                                                 
statements are admissible” under Rule
                                                                        48 See id. at 565.
                                                                        49 Id.
                                                                        50 Id. (citations omitted).
44 Id.                                                                  51 See id. at 566 (citations omitted).
45 IOWA R. EVID. 5.804(b)(3); Paredes, 775                              52 See id. (citing State v. DeWitt, 597 N.W.2d

N.W.2d at 561.                                                          809, 811 (Iowa 1999)).
46 Paredes, 775 N.W.2d at 562–64.                                       53 Id. at 566–68.
47 Id. at 564–65.                                                       54 Id. at 567 (citations omitted).

                                                               ~ Evidentiary Issues ~

              of the speaker, . . . (3)                                       declined to decide whether Rule
              whether     other     people                                    5.804(b)(3) recognizes admissions
              heard the out-of-court                                          through silence and concluded that,
              statement, . . . (4) whether                                    even if such a rule existed under the
              the statement was made                                          Rule, no such tacit admissions were
              spontaneously, . . . (5) the                                    made in this case.59 Furthermore, the
              timing of the declaration[,                                     court found Millard’s statements were
              and (6)] the relationship                                       sufficiently corroborated because
              between the speaker and                                         Millard made the statements to a person
              the witness.55                                                  she trusted and there was other
                                                                              testimony in the record that tended to
Addressing the level of corroboration                                         corroborate Millard’s statements.60 The
required under the Rule, the court held:                                      court concluded by finding the district
                                                                              court’s erroneous ruling was not
              [E]ach statement against                                        harmless and therefore remand was
              interest must be evaluated                                      necessary.61
              in context.         Clearly,
              specious assertions, such
              as “I killed the Lindbergh
              baby,”      by      persons
              completely unconnected
              with the time and place of
              the abduction and murder,
              lack corroboration and
              should be excluded. On
              the other hand, if a
              declarant is tied to the
              time and place of the crime
              and the statement has
              substantial plausibility, the
              corroboration requirement
              has been met.56

        Applying the law to the facts of
the case at bar, the court concluded the
district court erred in excluding Gail’s
testimony.57 The court explained that
although Millard’s statements to Gail
were not direct admissions, the
statements were nevertheless admissible
because they “tended to shift
responsibility away from Paredes and
toward Millard.”58 Next, the court
55 Id. at 567–68 (citations omitted).                                                                                                     
56 Id. at 568.                                                                59 See id. at 569–70.
57 See id.                                                                    60 Id. at 570.
58 See id. at 569.                                                            61 Id. at 571.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

X.            STATUTORY CONSTRUCTION                                    seventy-day requirement.8 His motion
                                                                        was denied by the district court, which
Bloate v. United States, 130 S. Ct.                                     determined that out of the 179 days that
1345 (2010)                                                             had elapsed, the period between
                                                                        September 7 and October 4—the period
       The issue facing the United States                               allotted to prepare pretrial motions—did
Supreme Court in Bloate was whether                                     not count toward the seventy-day limit.9
time granted to a criminal defendant to                                 At trial, which was also delayed because
prepare pretrial motions is                                             of reasons that “serve[d] the public
automatically excluded from the Speedy                                  interest,” the court found Bloate guilty
Trial Act’s requirement a criminal                                      on both counts.10
defendant’s trial begin within seventy
days of indictment or initial appearance,                                       Bloate appealed, and the Eighth
or whether that time is only excluded if                                Circuit affirmed the denial of the motion
the district court makes a case-specific                                to dismiss for violating the Speedy Trial
finding.1 The Court held time granted to                                Act.11 That court agreed with the district
prepare pretrial motions may be                                         court, finding the period between
excluded only if the court makes a case-                                September 7 and October 4 was
specific finding under 18 U.S.C. §                                      excludable from the seventy-day limit.12
3161(h)(7).2                                                            The Eighth Circuit held time to prepare
                                                                        pretrial motions is automatically
        On August 4, 2006, Bloate was                                   excluded under § 3161(h)(1), which
indicted for two offenses in relation to a                              covers delays “‘resulting from other
drug arrest.3 On September 7, Bloate                                    proceedings concerning the defendant’—
filed a motion to push back the pretrial                                as long as ‘the [district] court specifically
motion deadline.4 The magistrate judge                                  grants time from that purpose.’”13 The
extended the deadline to September 25,                                  Eighth Circuit joined several other
on which day Bloate filed a pretrial                                    circuits in interpreting § 3161(h)(1) that
motion waiver, advising the court he did                                way.14 Two circuits, however,
not care to file pretrial motions.5 On                                  interpreted the subsection differently, so
October 4, a hearing was held to                                        the Supreme Court granted certiorari to
consider Bloate’s waiver of pretrial                                    resolve the conflict.15
motions.6 Following the hearing,
Bloate’s trial was delayed three months                                         The Speedy Trial Act requires a
for various reasons.7 On February 19,                                   criminal defendant’s trial begin within
2007—almost six months after he was                                     seventy days of his or her initial
indicted—Bloate moved to dismiss his                                    appearance or indictment, whichever is
indictment, citing the Speedy Trial Act’s                               later, but excludes from that period days

                                                                        8 Id.
1 Bloate v. United States, 130 S. Ct. 1345, 1349                        9 Id.
(2010) (referencing 18 U.S.C. § 3161 (2006)).                           10 Id. at 1351.
2 Id. at 1352.                                                          11 Id.
3 Id. at 1350.                                                          12 Id.
4 Id.                                                                   13 Id. (quoting United States v. Bloate, 534 F.3d
5 Id.                                                                   893, 897 (8th Cir. 2008)).
6 Id.                                                                   14 Id. (citations omitted).
7 Id.                                                                   15 Id.

                                                               ~ Statutory Construction ~

lost to certain categories of delay.16                                          3161(h)(1).25 The case was remanded for
Section 3161(h) specifies the delays that                                       further proceedings.26
are excludable.17 Some delays are
excludable based on the district court’s                                        Magwood v. Patterson, 130 S. Ct.
determination; others are automatically                                         2788 (2010)
excludable.18 The Court determined the
delay at issue here was governed by one                                                The issue in Magwood was
of the subparagraphs that address                                               whether a resentencing—even one that
automatic exclusions.19 Specifically, the                                       reimposes the initial sentence—should
Court found the delay fell within §                                             be found to have arisen “in a ‘second or
3161(h)(1)(D).20 However, the Court                                             successive habeas corpus application.’”27
noted, “Subparagraph (D) does not                                               The United States Supreme Court held a
subject all pretrial motion-related delay                                       resentencing leads to a new judgment;
to automatic exclusion. Instead, it                                             therefore, a first application that
renders automatically excludable only                                           challenges a “new judgment” is not
the delay that occurs ‘from the filing of                                       “‘second or successive.’”28 In other
the motion through the conclusion of                                            words, where a new judgment
the hearing . . . .’”21 Thus, only the                                          intervenes two habeas petitions, an
period from when the motion was filed                                           application that challenges the new
through the hearing is automatically                                            judgment is not considered “‘second or
excludable—preparing to file is not.22                                          successive.’”29
The Court noted excluding all time used
in preparation of pretrial motions would                                               In 1981, Magwood was found
negate “the guarantee of a speedy                                               guilty of murder for killing a sheriff
trial.”23                                                                       despite his pleading not guilty by reason
                                                                                of insanity.30 He was sentenced to
        The Court also noted a district                                         death.31 He filed an application for a
court could exclude preparation time                                            writ of habeas corpus a few days before
under § 3161(h)(7) if that court granted                                        his scheduled execution.32 In response
“a continuance for that purpose based                                           to the writ, a new trial was held in 1986,
on recorded findings ‘that the ends of                                          and the judge found Magwood’s mental
justice served by taking such action                                            state qualified as a mitigating
outweigh the best interest of the public                                        circumstance.33 The state court,
and the defendant in a speedy trial.’”24                                        however, still sentenced him to death.34
In sum, the period between September 7
and October 4 was found to not be                                                      Magwood filed a petition with the
automatically excludable under §                                                state court asserting, among other
                                                                                25 Id. at 1358.
16 Id.                                                                          26 Id.
17 Id.; see 18 U.S.C. § 3161(h) (2006).                                         27 Magwood v. Patterson, 130 S. Ct. 2788, 2796
18 Id. (citing § 3161(h)(7)).                                                   (quoting 28 U.S.C. §§ 2244(b)(1), (2) (2006)).
19 Id. at 1352; see § 3161(h)(1).                                               28 Id.
20 Id.                                                                          29 Id. at 2802.
21 Id. at 1353 (citations omitted).                                             30 Id. at 2792.
22 See id.                                                                      31 Id.
23 Id. at 1356.                                                                 32 Id. at 2793.
24 Id. at 1357–58 (quoting Zedner v. United                                     33 Id.

States, 547 U.S. 489, 498 (2006)).                                              34 Id. (citation omitted).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                                        

claims, he did not have fair warning he                                 “second or successive” language is in
could be sentenced to death.35 The trial                                regard to claims, not applications; thus,
court denied the petition, Magwood                                      a prisoner is only entitled to one
appealed, and the state court of appeals                                opportunity to engage in a collateral
affirmed.36                                                             attack.42 Magwood, on the other hand,
                                                                        argued the language applied only to a
       In 1997, he filed a petition for                                 challenge against the same judgment;
another writ of habeas corpus, arguing                                  therefore, his 1986 resentencing
“his sentence was unconstitutional                                      constituted a new judgment and the
because he did not have fair warning at                                 application challenging that judgment
the time of his offense that his conduct                                could not be “second or successive.”43
would be sufficient to warrant a death
sentence.”37 The federal district court                                        To determine the meaning of
granted the writ and found the death                                    “second or successive,” the Court first
sentence was unconstitutional because                                   turned to the statutory context in which
of lack of fair notice to Magwood.38 The                                it was used.44 The Court found the
United States court of appeals reversed,                                limitations imposed by the statute only
finding Magwood’s claim was governed                                    apply to applications for writs “on behalf
by the restrictions placed on “‘second                                  of a person in custody pursuant to the
and successive’” applications for habeas                                judgment of a State court”; thus, the
corpus found in 28 U.S.C. § 2244(b).39                                  language must be interpreted with
The Supreme Court granted certiorari.40                                 regard to the judgment challenged.45
                                                                        The State next argued the Court should
        Section 2244(b)(1), as amended                                  focus on § 2254’s reference to custody.46
by the Antiterrorism and Effective Death                                The Court, though, disagreed and found
Penalty Act (AEDPA), provides: “‘A                                      the “custody-based rule” the State
claim presented in a second or                                          proffered “inextricable from the
successive habeas corpus application                                    judgment that authorizes it.”47 The
under section 2254 that was presented                                   Court further noted, “‘[A] prisoner is
in a prior application shall be                                         entitled to one free-standing collateral
dismissed.’”41 The State argued the                                     attack per judgment, rather than one
                                                                        attack per stretch of imprisonment.’”48
35 See id. at 2793–94.
36 Id. at 2794 (citations omitted).                                            The State next argued a “‘one
37 Id. (citing Magwood v. Culliver, 481 F. Supp.                        opportunity’” rule is more consistent
2d 1262, 1295 (M.D. Ala. 2007)).                                        with the text of the statute.49 The Court
38 Id. at 2794–95 (citing Magwood, 481 F. Supp.
                                                                        refused to replace the actual statutory
2d at 1285, 1295).
39 Id. at 2795 (citing Magwood v. Culliver, 555                                                                                                                  
F.3d 968, 975–76 (11th Cir. 2009)).                                     the applicant was guilty of the offense. Id. at
40 Id. (citing Magwood v. Culliver, 130 S. Ct. 624                      2795–96 (citing § 2244(b)(2)(A)).
(2009)).                                                                42 Id. at 2796 (citations omitted).
41 Id. (quoting 28 U.S.C. § 2244(b)(1) (2006)).                         43 Id.

Section 2244(b)(2)(A) lists certain exceptions to                       44 Id. at 2797.

dismissal, such as new rules of constitutional law                      45 Id. (emphasis added) (citing § 2254(b)(1)).

that have been made retroactive to cases the                            46 Id. (citation omitted).

Supreme Court is reviewing, the claim’s factual                         47 Id.

predicate could not have previously been                                48 Id. at 2798 (quoting Beyer v. Litscher, 306

discovered, and the underlying facts could not                          F.3d 504, 507 (7th Cir. 2002)).
have lead a reasonable fact finder to conclude                          49 Id.

                                                               ~ Statutory Construction ~

language with speculation as to the                                             the error; basically, procedural default
intent Congress possessed; it would not                                         will block federal review.57
“rewrite the statute” so that the
statutory text applied to claims as well                                               The Court held Magwood’s first
as applications.50 In addition, the                                             application that challenged his new
State’s reading of § 2244(b) would                                              sentence in respect to the 1986
undermine and dilute the exceptions to                                          judgment was not “‘second or
dismissal listed in § 2244(b)(2).51                                             successive,’” thereby reversing and
                                                                                remanding the case.58
        The Court addressed the
argument its holding contradicted past                                          Renico v. Lett, 130 S. Ct. 1855
precedent, which would have barred                                              (2010)
Magwood’s latter application, and held
none of those pre-AEDPA decisions                                                      Lett involved a criminal
applied the “second or successive”                                              defendant whose first trial for murder
language to applications challenging                                            was declared a mistrial when the jury
new judgments.52 In fact, the Court                                             could not reach a verdict but was
noted Congress did not apply the phrase                                         convicted of second-degree murder at a
to state prisoners’ applications until the                                      second trial.59 The United States
AEDPA was enacted.53 It distinguished                                           Supreme Court was asked to determine
the only case on point, Burton v.                                               whether, under the Antiterrorism and
Stewart, which did not involve an                                               Effective Death Penalty Act (AEDPA),
intervening judgment between habeas                                             the finding of the state supreme court
petitions.54 The present case, however,                                         that there had been no abuse of
did: This was Magwood’s first                                                   discretion by the trial court was a
application challenging the intervening                                         reasonable application of federal law.60
judgment—the errors he alleged were                                             The Court determined the state supreme
new.55 His fair-warning claim turned                                            court was correct in its application of
upon new errors—“[a]n error made a                                              both the AEDPA and federal double
second time is still a new error.”56                                            jeopardy precedent.61

       The Court did note a stipulation,                                                In 1997, Lett was put on trial for
however: A petitioner cannot raise an                                           first-degree murder.62 During jury
error in federal court that he failed to                                        deliberation, the jury sent several notes
properly raise in state court in any                                            to the court, one of which asked what
challenge to the judgment that reflects                                         would happen if the jury could not agree
                                                                                on a verdict.63 The judge called the jury,
                                                                                57 Id. (citations omitted). The Court left any

                                                                                issue regarding procedural default in this case to
                                                                                the court of appeals on remand. Id. at 2801–02.
50 Id.                                                                          58 Id. at 2803.
51 Id. See supra note 652.                                                      59 Renico v. Lett, 130 S. Ct. 1855, 1861 (2010).
52 Id.                                                                          60 Id. at 1862 (citing 28 U.S.C. § 2254(d)
53 Id. at 2800.                                                                 (2006)).
54 Id. at 2800–01 (referencing Burton v. Stewart,                               61 Id. at 1864.

549 U.S. 147 (2007)).                                                           62 Id. at 1860.
55 Id. at 2801.                                                                 63 Id. (citing People v. Lett, 644 N.W.2d 743, 745
56 Id.                                                                          (Mich. 2002)).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

prosecution, and defense counsel back
into the courtroom and, after inquiring                                         The Court first noted the AEDPA
as to the jury’s progress, was told by the                              “imposes a ‘highly deferential standard
foreperson the jury would not reach a                                   for evaluating state-court rulings.’”74
unanimous verdict.64 The judge                                          State court decisions must “‘be given the
declared a mistrial and dismissed the                                   benefit of the doubt.’”75 The decision to
jury.65 A new trial was scheduled, and                                  grant a mistrial is left “to the ‘broad
the jury in that proceeding convicted                                   discretion’ of the trial judge.”76
Lett of second-degree murder.66                                         Deference to the trial court is justified
                                                                        through the reasoning the trial court is
        On appeal, Lett argued the                                      best positioned to assess all factors
mistrial was an error because there had                                 requiring consideration before a
been no manifest necessity for the judge                                discretionary determination is made
to rule that way.67 Therefore, Lett felt                                regarding whether the jury will reach a
the State was precluded by the United                                   verdict if it continues deliberating.77 A
States Constitution’s Double Jeopardy                                   trial judge who declares a mistrial need
Clause from trying him again.68 The                                     not make specific findings of “‘manifest
Michigan Court of Appeals agreed,                                       necessity’” or articulate all the factors
reversing his conviction.69 The                                         that informed the exercise of her
Michigan Supreme Court, however,                                        discretion.78
reversed that decision, holding under
United States v. Perez, 22 U.S. (9                                             Therefore, the Court held the
Wheat,) 579 (1824), a defendant can be                                  decision by the Michigan Supreme Court
retried after a deadlocked jury has been                                was not unreasonable under the AEDPA,
discharged—even if the discharge                                        and thus, the Sixth Circuit’s decision
occurred without the defendant’s                                        needed to be reversed.79 The Michigan
consent.70 The state supreme court                                      Supreme Court properly applied federal
determined the judge at Lett’s original                                 double jeopardy precedent, therefore its
trial did not abuse her discretion when                                 decision—upholding the trial court’s
she declared the mistrial.71 Lett filed a                               exercise of discretion—was not
federal writ of habeas corpus, and the                                  objectively unreasonable.80 On the
federal district court agreed with his                                  other hand, the Sixth Circuit’s ruling in
argument.72 The Sixth Circuit affirmed,                                 favor of Lett failed to grant the state
and the Supreme Court granted                                           court the deference required by both the
certiorari.73                                                           AEDPA and double jeopardy
64 Id. at 1861 (citation omitted).                                      74 Id. (quoting Lindh v. Murphy, 521 U.S. 320,
65 Id.                                                                  333 n.7 (1997)).
66 Id.                                                                  75 Id. (quoting Woodford v. Visciotti, 537 U.S. 19,
67 Id.                                                                  24 (2002)).
68 Id.                                                                  76 Id. at 1863 (citing Illinois v. Somerville, 410
69 Id.                                                                  U.S. 458, 462 (1973)).
70 Id. (citing People v. Lett, 644 N.W.2d 743, 749                      77 Id. (citing Arizona v. Washington, 434 U.S.

(Mich. 2002)).                                                          497, 510 (1978)).
71 Id. (citing Lett, 644 N.W.2d at 753).                                78 Id. at 1864 (citing Washington, 434 U.S. at
72 Id. at 1862 (citing Lett v. Renico, 507 F. Supp.                     517).
2d 777 (E.D. Mich. 2007)).                                              79 Id.
73 Id. (citing Lett v. Renico, 316 F. App’x 421                         80 Id. at 1864–65 (citing People v. Lett, 644

(2009)).                                                                N.W.2d 743, 749–52 (Mich. 2002)).

                                                               ~ Statutory Construction ~

precedent.81 While the trial judge could                                        associate freely.87 The court recognized
perhaps have been more thorough prior                                           that, while constitutional jurisprudence
to declaring a mistrial, such                                                   recognizes a constitutional right to
thoroughness was not required.82 The                                            interstate travel, the right to intrastate
Court reversed the Sixth Circuit’s                                              travel had not yet been embraced.88
judgment and remanded the case for                                              Although Formaro urged the court to
further proceedings not inconsistent                                            recognize such a right, the court
with its opinion.83                                                             declined to do so.89 Instead, the court
                                                                                ruled that, even assuming such a right
Formaro v. Polk County, 773                                                     exists, no such violation occurred in this
N.W.2d 834 (Iowa 2009)                                                          case.90 The court explained:

        Formaro involved an attack on                                                                 The Iowa residency
the constitutional validity of Iowa Code                                                      restriction       does      not
section 692A.2A (2005), otherwise                                                             prevent a sex offender
known as the 2000-foot rule, which                                                            from entering or leaving
limits the areas in which sex offenders                                                       any part of the State,
may reside in the state.84 Formaro                                                            including areas within
argued the 2000-foot rule was                                                                 2000 feet of a school or
unconstitutional because it “(1) infringes                                                    child care facility, and it
upon his right to travel and freedom of                                                       does not erect any actual
association, (2) utilizes terms that are                                                      barrier      to      intrastate
impermissibly vague or overbroad in                                                           movement. . . .              By
violation of due process, (3) is an                                                           contrast, the decisions
unconstitutional bill of attainder, and                                                       finding infringement of a
(4) is an ex post facto law.”85 In an                                                         fundamental         right    to
opinion written by Justice Appel, the                                                         intrastate      travel    have
Iowa Supreme Court held that the 2000-                                                        involved laws that trigger
foot rule withstood constitutional                                                            concerns       not     present
scrutiny on all grounds.86                                                                    here—interference         with
                                                                                              free ingress to and egress
       The court first addressed                                                              from certain parts of the
Formaro’s claim section 692A.2A                                                               State . . . or treatment of
infringed upon his right to travel and                                                        new residents of a locality
                                                                                              less favorable than existing
                                                                                              residents . . . .91
81 Id. at 1865.
82 Id. at 1866.
83 Id.                                                                          Therefore, the court held, “On its face . .
84 Formaro v. Polk County, 773 N.W.2d 834, 837                                  . the 2000-foot rule does not impede
(Iowa 2009). During the pendency of Formaro,
the Iowa legislature repealed Iowa Code section
692A.2A. Id. at 837 n.1. Polk County filed a
motion to dismiss claiming the legislative                                                                                                  
amendments rendered Formaro’s claim moot.                                       87 Id. at 838–40.
See id. The court rejected the County’s                                         88 Id. at 838–39.
mootness claim, holding the legislative revisions                               89 Id. at 839–40.

were immaterial to the case at bar. Id.                                         90 Id. at 840.
85 Id.                                                                          91 Id. (quoting Doe v. Miller, 405 F.3d 700, 713
86 Id.                                                                          (8th Cir. 2005)).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

Formaro’s freedom of travel or right to                                               certainly not one based
association.”92                                                                       upon       the     First
        The court then addressed
Formaro’s vagueness and overbreadth                                             Turning to the bill of attainder
claims.93 Formaro argued the                                            analysis, the court noted “[a] bill of
legislature failed to define “reside” and                               attainder is a legislative act that inflicts
“sleeps” adequately when it codified                                    punishment on a particular individual or
section 692A.2A.94 The court, in                                        readily identifiable group without a
rejecting Formaro’s vagueness                                           judicial trial.”99 The court, relying on
challenge, noted, “[W]e believe use of                                  State v. Willard, held the residency
the term ‘sleeps’ in section 692A.1(8) in                               restrictions imposed by section 692A.2A
connection with the definition of ‘reside’                              did not constitute punishment.100
means habitual sleep in a home.”95 The                                  Consequently, the 2000-foot rule was
court concluded “sleeps” and “reside”                                   not found to be a bill of attainder.101
were not unconstitutionally vague when
read in the context of a more permanent                                         Finally, the court addressed
living arrangement.96                                                   whether the 2000-foot rule constituted
                                                                        an ex post facto law.102 The court
       With respect to the overbreadth                                  explained the state and federal
challenge, Formaro argued section                                       Constitutions each contain an Ex Post
692A.2A “impinges on the exercise on                                    Facto Clause which “‘forbid[s] the
his First Amendment freedoms by                                         application of a new punitive measure to
preventing him from participating in                                    conduct already committed,’ and
overnight political, religious, family, or                              prohibit a statute which ‘makes more
other assemblies.”97 The court swiftly                                  burdensome the punishment for a crime
rejected this argument:                                                 after its commission.’”103 The court
                                                                        addressed the same issue in State v.
               [U]nder a proper reading                                 Seering, in which it held the 2000-foot
              of 692A.2A, Formaro can                                   rule did not impose criminal
              lawfully attend an all-night                              punishment.104 Formaro requested the
              religious service, family                                 court reconsider its holding in
              gatherings, or political                                  Seering.105 The court declined to do so
              rallies even within a                                     and concluded section 692A.2A did not
              protected area. While the
              2000-foot rule impinges
              on where Formaro may
              establish a residence, there                                                                                          
              is no fundamental right to                                98 Id. (citations omitted).
              live where you want and                                   99 Id. (citing Atwood v. Vilsack, 725 N.W.2d 641,
                                                                        651 (Iowa 2006)).
                                                                        100 Id. (citing State v. Willard, 756 N.W.2d 207,
92 Id. (citing Weems v. Little Rock Police Dep’t,                       212 (Iowa 2008)).
453 F.3d 1010, 1016–17 (8th Cir. 2006)).                                101 Id. (citing Willard, 756 N.W.2d at 212).
93 Id. at 840–42.                                                       102 Id. at 843–44.
94 Id. at 841.                                                          103 Id. at 843 (citations omitted).
95 Id.                                                                  104 Id. (citing State v. Seering, 701 N.W.2d 655,
96 See id.                                                              667–68 (Iowa 2005)).
97 Id. at 842.                                                          105 Id. at 844.

                                                               ~ Statutory Construction ~

constitute “banishment”;106 therefore,                                          violated several rules, resulting in the
section 692A.2A did not constitute an ex                                        revocation of his work release.114 He
post facto law.107                                                              filed an application for postconviction
                                                                                relief, but it was dismissed by the
Maghee v. State, 773 N.W.2d 228                                                 district court, which held Maghee should
(Iowa 2009)                                                                     have challenged the revocation under
                                                                                the state’s Administrative Procedure
       The Iowa Supreme Court                                                   Act, not in a postconviction-relief
addressed two issues in Maghee: (1)                                             action.115 Maghee appealed this
whether an inmate who had his work                                              dismissal but died before the filing of
release revoked by the department of                                            briefs.116 The State filed a motion to
corrections could challenge that                                                dismiss, arguing the case abated
revocation via a postconviction-relief                                          consequent to Maghee’s death.117 The
action and (2) whether an inmate’s                                              supreme court, however, ordered the
death during the appeal’s pendency                                              motion submitted along with the
abated the cause of action or rendered                                          appeal.118
the appeal moot.108
                                                                                        The supreme court first
        The court held the state’s survival                                     addressed the State’s motion to
statutes prevented the abatement of                                             dismiss.119 Maghee relied on Iowa’s
Maghee’s cause of action.109 However,                                           current survival statute, which would
Maghee’s death was found to render his                                          allow the case to proceed after his
appeal moot.110 Further, Iowa’s public-                                         death.120 That language reads: “‘The
interest exception to moot issues, while                                        death of one or all of the parties shall
applicable to the State’s motion to                                             not cause the proceedings to abate, but
dismiss, did not require the remand of                                          the names of the proper persons shall be
the case.111 Regarding the second issue,                                        substituted . . . and the case may
the court held Maghee properly sought                                           proceed.’”121 In light of the statute, the
review of the revocation through a                                              court has nevertheless held “civil claims
postconviction-relief action.112 The                                            or actions personal to the decedent are
district court’s judgment was reversed,                                         extinguished by the decedent’s death.”122
but it was not remanded due to the                                              It appears the basis for the court-made
mootness of the issue.113                                                       exception carried over from the state’s
                                                                                original survival statute, which only
      While serving a prison sentence                                           provided for survival “‘if from the nature
and out on work release, Maghee                                                 of the case the cause of action can
106  Id. In Seering, the court held residency                                   114 Id.
restrictions may become punitive if they amount                                 115 Id. (citing IOWA CODE ch. 17A (2003)). Under
to traditional banishment. See id.                                              chapter 17A, Maghee should have challenged the
107 Id.                                                                         revocation through a petition for judicial review.
108 Maghee v. State, 773 N.W.2d 228, 230 (Iowa                                  Id.
2009).                                                                          116 Id. at 230, 231.
109 Id. (citing IOWA CODE §§ 611.20, 625A.17                                    117 Id. at 230.

(2005)).                                                                        118 Id.
110 Id.                                                                         119 Id. at 231–35.
111 Id. at 235, 242.                                                            120 Id. at 232.
112 Id.                                                                         121 Id. (citing IOWA CODE § 625A.17 (2005)).
113 Id.                                                                         122 Id. (citations omitted).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

survive or continue.’”123 The court                                             Maghee’s attorneys asked the
continued to administer this                                            court to apply the state’s public-interest
commonsense survival exception—                                         exception, which allows the court to rule
“when the death of a party makes any                                    on moot controversies if the issue is of
relief ineffectual, survival statutes do not                            substantial public interest.130 In
save the proceeding.”124                                                determining whether to apply the
Notwithstanding the inconsistency                                       exception, the court noted it considers
between the current statute’s language                                  the following factors: “‘(1) the private or
and existing case law, the court                                        public nature of the issue; (2) the
concluded the latter was not                                            desirability of an authoritative
inconsistent with the former when the                                   adjudication to guide public officials in
cases were viewed as functions of the                                   their future conduct; (3) the likelihood
mootness doctrine.125                                                   of the recurrence of the issue; and (4)
                                                                        the likelihood the issue will recur yet
        The court noted, “[a] case is moot                              evade appellate review.’”131 The court
when the contested issue has become                                     found the appeal presented an issue of
academic or nonexistent and the court’s                                 general application likely to reoccur;
opinion would be of no force or effect in                               prisoners are transferred into and out of
the underlying controversy.”126 While                                   work release programs every day, and
the state’s survival statutes provide an                                challenges to these transfers inevitably
action will not abate upon a party’s                                    arise.132 The court also found it
death, the case must still provide a                                    desirable to have authoritative
justiciable controversy if it is to                                     adjudication addressing whether the
proceed.127 Here, Maghee’s cause of                                     challenges should be pursued under
action was found to have survived his                                   chapter 17A—judicial review of an
death pursuant to Iowa Code section                                     agency action—or under chapter 822—
611.20; thus, his appeal survived.128                                   filing a postconviction-relief action.133
However, the court found the case moot                                  In addition, because of the effect work
because the underlying controversy                                      release, earned-time credits, and parole
would not be affected by its decision—                                  have, many actions similar to Maghee’s
Maghee’s death ended his                                                could be rendered moot due to the
imprisonment, thus rendering his                                        inmate’s release before the resolution of
release impossible.129                                                  his or her appeal.134 The court
                                                                        accordingly found the public-interest
                                                                        exception applied, and the State’s
                                                                        motion to dismiss was denied.135
123 Id. (citing § 1698 (1851)).
124 Id. at 233 (citations omitted).
125 Id.                                                                         The court next addressed the
126 Id. (citing In re M.T., 625 N.W.2d 702, 704                         method of challenge that is to be applied
(Iowa 2001)).                                                           to the revocation of work release.136 It
127 Id. (citing AFSCME/Iowa Council 61 v. Iowa

Dep’t of Pub. Safety, 434 N.W.2d 401, 405 (Iowa                                                                                     
1988)).                                                                 130 Id. (citations omitted).
128 Id. at 233–34 (citing § 611.20 (2005)                               131 Id. (citations omitted).
(providing “‘[a]ll causes of action shall survive                       132 Id. at 235.

and may be brought notwithstanding the death                            133 Id.

of the person entitled or liable to the same’”)).                       134 Id.
129 Id. at 234 (citing In re Sodensten, 53 Cal.                         135 Id.

Rptr. 3d 572, 609 (2007)).                                              136 Id. at 235–42.

                                                               ~ Statutory Construction ~

began by addressing prior case law,
specifically Dougherty v. State, 323                                                    Although the court found the
N.W.2d 249 (Iowa 1982).137 In                                                   district court erred in its dismissal, the
Dougherty, the court concluded a work                                           court did not require remand of the case
release committee’s revocation decision                                         for further proceedings.145 The public-
was an agency action within the                                                 interest exception was found not to
meaning of Iowa’s Administrative                                                apply because the issue was purely
Procedure Act.138 Therefore, chapter                                            private in nature and authoritative
17A was found to provide “‘the exclusive                                        guidance on the issue was already in
means for challenging a . . . work release                                      existence.146 Thus, the case was
revocation.’”139 In this instance,                                              reversed but not remanded.147
however, the court found Dougherty to
no longer be good law because the                                               State v. Anderson, 782 N.W.2d 155
statutory mechanism that governs work                                           (Iowa 2010)
release and work release revocation had
changed considerably since the time the                                                The issue in State v. Anderson
case was decided.140 Today, the                                                 was whether a ten-year special sentence
department of corrections handles                                               that was attached to a two-year sentence
“termination of work release ‘in                                                began to run once the two-year sentence
accordance with rules of the                                                    was discharged or if a concurrent and
department.’”141                                                                separate sentence needed to be
                                                                                completed before the special sentence
       Nevertheless, the State argued                                           could commence.148
inmates subject to work-release transfer
decisions must follow chapter 17A’s                                                    The Iowa Supreme Court
judicial review procedure, while Maghee                                         determined Iowa Code section 903B.2
contended the committee responsible                                             required a special sentence start running
for such decisions falls outside the                                            “when the sentence for the underlying
chapter’s scope.142 The court                                                   criminal offense is discharged, even if
determined chapter 17A’s exclusivity                                            the defendant is serving a longer,
provisions did not prevent an inmate’s                                          concurrent sentence.”149 Thus, the ten-
challenge to the department’s transfer                                          year special sentence could begin to run
decision via a postconviction-relief                                                                                                                                     
action.143 The court addressed the                                              not to address the issue of exclusivity present in
chapter’s three references to exclusivity                                       Maghee’s case. Id. at 239. Section 17A.19, which
and found none prevented a                                                      “outlines the judicial review process,” was found
postconviction-relief action.144                                                not to render postconviction-relief claims a
                                                                                nullity. Id. at 239–40. Section 17A.23, which
                                                                                “addresses the construction of chapter 17A,” was
137 Id. at 235–37.                                                              found not to be contravened by permitting
138 Id. at 236 (citations omitted).                                             “postconviction review of disciplinary decisions
139 Id. (quoting Dougherty v. State, 323 N.W.2d                                 of the department of corrections.” Id. at 240–
249, 250 (Iowa 1982)).                                                          41.
140 Id. at 235.                                                                 145 Id. at 242.
141 Id. at 237 (citing IOWA CODE § 904.903                                      146 Id. (citations omitted).

(2003)).                                                                        147 Id.
142 Id. at 238.                                                                 148 State v. Anderson, 782 N.W.2d 155, 156 (Iowa
143 Id. at 238–39.                                                              2010).
144 Id. at 239–42. Section 17A.1(2), which                                      149 Id. at 159 (referencing IOWA CODE § 903B.2

“contains a statement of purpose,” was found                                    (2007)).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

once the two-year sentence was                                                        . section 728.12 shall also
discharged.150                                                                        be sentenced . . . to a
                                                                                      special             sentence
       Anderson had been convicted of                                                 committing the person
sexual exploitation of a minor in                                                     into the custody of the
violation of Iowa Code section                                                        director of the Iowa
728.12(3).151 He was given a two-year                                                 department of corrections
prison sentence that was to run                                                       for a period of ten years . . .
concurrently with consecutive five-year                                               .    The special sentence
sentences that had been imposed in a                                                  imposed under this section
different county for a different                                                      shall commence upon
offense.152 Based on the conviction that                                              completion of the sentence
had warranted the two-year sentence,                                                  imposed       under      any
Anderson was also required to serve a                                                 applicable          criminal
special, ten-year sentence pursuant to                                                sentencing provisions for
Iowa Code section 903B.2.153                                                          the underlying criminal
Essentially, he was required to serve an                                              offense and the person
additional parole period of ten years.154                                             shall begin the sentence
He completed the two-year sentence                                                    under supervision as if on
while there was still time remaining on                                               parole.159
his consecutive five-year sentences.155
                                                                                Anderson argued under section
        Anderson filed a motion asking                                  903B.2 his special sentence should have
the district court to order the                                         started when he completed the sentence
implementation of the special sentence                                  for the underlying criminal offense that
because he had discharged the                                           had led to the special sentence.160 The
underlying two-year sentence.156 The                                    State argued the special sentence was
district court ultimately held the special                              not to begin running until Anderson had
sentence was not to be implemented                                      discharged the separate concurrent
until after he discharged the concurrent                                sentences.161 Alternatively, the State
five-year sentences.157 Anderson                                        argued the statute was ambiguous and
appealed.158                                                            the court must therefore look to
                                                                        legislative intent.162
      The relevant language of section
903B.2 states:                                                                  The court found the language of
                                                                        section 903B.2 to be unambiguous:
              A person convicted of a                                   “The statute states the ten-year sentence
              misdemeanor or a class                                    ‘shall commence upon completion of the
              “D” felony offense under . .                              sentence imposed under any applicable
                                                                        criminal sentencing provisions for the
150 See id.
151 Id. at 156 (referencing § 728.12(3)).
152 Id.
153 Id.                                                                                                                             
154 Id.                                                                 159 Id. (citing IOWA CODE § 903B.2 (2007))
155 Id. at 157.                                                         (emphasis by the court).
156 Id.                                                                 160 Id.
157 Id.                                                                 161 Id. at 157–58.
158 Id.                                                                 162 Id. at 158.

                                                               ~ Statutory Construction ~

underlying criminal offense.’”163 Here,                                         two-year sentence—was completed.169
the two-year conviction was the                                                 Anderson’s special sentence was to be
“‘underlying criminal offense’” that led                                        calculated as though it had begun when
to the ten-year special sentence’s                                              he completed the two-year sentence,
imposition.164 The only way the                                                 “the sentence for the underlying
language could be read to permit the                                            criminal offense.”170 The district court’s
commencement of the special sentence                                            judgment was reversed, and the case
after Anderson completed the                                                    was remanded with instructions.
concurrent five-year sentences would
have required the court to ignore the                                           State v. Braggs, 784 N.W.2d 31
phrase “‘underlying criminal offense.’”165                                      (Iowa 2010)

       The court also found the words                                                   The primary issue in Braggs was
“‘any applicable criminal sentencing                                            whether assault could be considered “a
provisions’” were modified by the                                               lesser-included offense of attempted
language “‘for the underlying criminal                                          murder.”171 The Iowa Supreme Court
offense’” and were thus limited to the                                          held it could, affirming Braggs’s
two-year sentence.166 Also, the use of                                          conviction and sentence.172
the language “‘as if on parole’” was
found to indicate the requirement was                                                  In May 2007, Braggs forced his
congruent with a special sentence                                               way into an apartment and attacked the
commencing while a defendant was                                                tenant’s girlfriend, stabbing her in the
serving a separate and concurrent                                               neck, chest, hip, and arm.173 He was
offense.167                                                                     charged with multiple violations, one of
                                                                                which was attempted murder in
        Lastly, the court found the                                             violation of Iowa Code section 707.11.174
language describing the commencement
of the special sentence—“‘upon                                                         At trial, jury instructions on the
completion of the sentence imposed                                              attempted murder charge noted if the
under any applicable criminal                                                   State had proved all requisite elements,
sentencing provisions for the underlying                                        Braggs was guilty of attempted murder;
criminal offense’”—could not be read to                                         however, if the State had failed to prove
encompass a separate, concurrent                                                even one element, Braggs would not be
sentence.168                                                                    guilty of attempted murder, but an
                                                                                assault charge could then be
       Accordingly, the court held the                                          considered.175
special sentence should have begun
running “when the sentence for ‘the                                                    The court first addressed the
underlying criminal offense’”—here, the                                         history of classifying assault as a lesser
                                                                                169 Id.
                                                                                170 Id. at 160.
163 Id. (quoting § 903B.2) (emphasis by the                                     171 State v. Braggs, 784 N.W.2d 31, 34 (Iowa

court).                                                                         2010).
164 Id.                                                                         172 Id. at 36–37.
165 Id.                                                                         173 Id. at 33.
166 Id.                                                                         174 Id. (referencing IOWA CODE § 707.11 (Supp.
167 Id. at 159.                                                                 2009)).
168 Id.                                                                         175 Id. at 34.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

included offense of attempted murder.176                                              to set in motion a person’s
Braggs argued this precedent was based                                                death      without     also
upon the Iowa Code prior to a 1978                                                    intending to cause them
rewrite of the Criminal Code.177 The                                                  pain or injury.181
court agreed and, citing statutory
revisions that occurred since 1978,                                            The court found Braggs’s
noted an “‘assault’” is not an element of                               argument to be misplaced, noting
attempted murder.178                                                    elements of a lesser offense need not be
                                                                        statutorily described in the exact
        To determine if assault is                                      manner as the elements comprising the
considered a lesser included offense, the                               greater offense.182 The court held, “[I]t
court examined the test outlined in State                               is impossible to commit attempted
v. Jeffries: “[U]nder the legal test the                                murder without also performing an act
lesser offense is necessarily included in                               which meets the statutory definition of
the greater offense if it is impossible to                              an assault . . . .”183 Attempted murder
commit the greater offense without also                                 could not be committed without an
committing the lesser offense.”179 The                                  assault having also been committed.184
court noted this “strict statutory element                              Braggs’s conviction and sentence were
approach” is embodied in the Iowa                                       affirmed.185
Rules of Criminal Procedure and the
Iowa Code, and is known as the
impossibility test.180 In applying the
impossibility test, the court identified
the elements of attempt to commit
murder, finding:

              [T]o commit attempted
              murder a person must do
              an act by which the person
              intends to set in motion a
              course of events that will
              result in the death of
              another, and . . . to commit
              assault a person must do
              an act which is intended to
              cause another pain or
              injury which will be
              painful,   injurious,     or
              offensive. As a practical
              matter, one cannot intend
176 Id. at 35 (citing State v. Powers, 278 N.W.2d                                                                                   
26, 28 (Iowa 1979)).                                                    181 Id. (citations omitted).
177 Id. (citing § 690.6 (1977)).                                        182 Id. (citing State v. Turecek, 456 N.W.2d 219,
178 Id. (citing § 707.11 (1979)).                                       223 (Iowa 1990)).
179 Id. at 35–36 (citing State v. Jeffries, 430                         183 Id. at 36–37 (referencing § 707.1(1) (2009)).

N.W.2d 728, 740 (Iowa 1988)).                                           184 Id. at 37.
180 Id. at 36 (citations omitted).                                      185 Id.

                                                               ~ Jury Instructions ~

XI. JURY INSTRUCTIONS                                                                The Supreme Court compared the
                                                                              jury instructions Spisak received with
Smith v. Spisak, 130 S. Ct. 676                                               those given in Mills that were
(2010)                                                                        determined to be unconstitutional.10
                                                                              The problem the Mills Court identified
        The first issue in Spisak was                                         was the jury was instructed it could
whether the trial court erroneously                                           consider in the ultimate weighing of the
instructed jurors in such a manner they                                       aggravating and mitigating evidence
were precluded from considering certain                                       only the mitigating factors all twelve
mitigating factors or evidence.1 The                                          jurors had unanimously found to exist.11
second issue was whether Spisak’s trial                                       The instructions and jury forms in
counsel’s closing argument at the                                             Spisak’s case were very different from
penalty phase was so inadequate as to                                         those in Mills.12
violate his Sixth Amendment right to
effective assistance of counsel.2 The                                                 The instructions given to Spisak’s
United States Supreme Court answered                                          jury clearly informed the jurors that to
both inquires in the negative.3                                               recommend the death penalty they “had
                                                                              to find, unanimously and beyond a
       Spisak was sentenced to death                                          reasonable doubt, that each of the
after being convicted of three murders                                        aggravating factors outweighed any
and two attempted murders.4 He                                                mitigating circumstances.”13 The jury
thereafter filed a petition for habeas                                        was not instructed to ascertain the
corpus in federal court.5 He alleged the                                      existence of each separate mitigating
jury instructions were in violation of                                        factor unanimously.14 The instructions
Mills v. Maryland,6 a case establishing                                       “focused only on the overall balancing
jurors must not be precluded from                                             question” the jury was to decide.15
considering mitigating factors or                                             Moreover, the instructions emphasized
mitigating evidence in a capital case.7                                       the jury was to consider all relevant
He also argued his trial counsel’s closing                                    evidence.16 In the Court’s view,
argument at his penalty phase was so
inadequate it violated his Sixth                                                            [T]he instructions and
Amendment right to effective counsel.8                                                      verdict forms did not
The federal court of appeals agreed with                                                    clearly bring about . . . the
both arguments and granted Spisak’s                                                         circumstance that Mills
petition, but after granting certiorari,                                                    found critical, namely, “a
the Supreme Court reversed.9                                                                substantial possibility that
                                                                                            reasonable jurors, upon
                                                                                            receiving    the     judge’s
1 Smith v. Spisak, 130 S. Ct. 676, 680 (2010)                                               instructions in this case,
(citing Mills v. Maryland, 486 U.S. 367 (1988)).                                            and in attempting to
2 Id. at 684–85.
3 Id. at 684, 687 (citations omitted).                                                                                                    
4 Id. at 680.                                                                 10 Id. at 683.
5 Id.                                                                         11 Id. at 682 (citing Mills, 486 U.S. at 380–81).
6 Mills v. Maryland, 486 U.S. 367 (1988).                                     12 See id. at 684 (citing Mills, 486 U.S. at 384).
7 Smith, 130 S. Ct. at 680–82 (citing Mills, 486                              13 Id.

U.S. at 374).                                                                 14 Id.
8 Id. at 684–85.                                                              15 Id.
9 Id. at 681.                                                                 16 Id. (citation omitted).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

              complete the verdict form                                 Spisak would never be any different.24
              as instructed, well may                                   He then noted all the experts had
              have thought they were                                    testified Spisak suffered from mental
              precluded             from                                illness.25 He argued, even were Spisak
              considering any mitigating                                not legally insane, he nevertheless “was
              evidence unless all 12                                    sufficiently mentally ill to lessen his
              jurors agreed on the                                      culpability to the point where he should
              existence of a particular                                 not be executed.”26
              such circumstance.”17
                                                                               Spisak argued this closing was
As a result, the Court held the state                                   constitutionally inadequate for the
court’s decision to uphold these                                        following reasons:
instructions and forms “was not
‘contrary to, or . . . an unreasonable                                                (1) It overly emphasized
application of, clearly established                                                   the gruesome nature of the
Federal law, as determined by the                                                     killings; (2) it overly
Supreme Court of the United States’ in                                                emphasized           Spisak’s
Mills.”18                                                                             threats to continue his
                                                                                      crimes; (3) it understated
        Turning to the second issue, the                                              the facts upon which the
Court summarized the requirements of a                                                experts based their mental
claim of ineffective assistance of counsel                                            illness conclusions; (4) it
under Strickland v. Washington.19                                                     said little or nothing about
First, a defendant must show “‘counsel’s                                              any       other      possible
representation fell below an objective                                                mitigating circumstance;
standard of reasonableness.’”20 Second,                                               and (5) it made no explicit
a defendant must show “there is a                                                     request that the jury
‘reasonable probability that, but for                                                 return a verdict against
counsel’s unprofessional errors, the                                                  death.27
result of the proceeding would have
been different.’”21                                                            In order to analyze the prejudice
                                                                        prong of Strickland, the Supreme Court
       Spisak’s counsel had described                                   assumed, arguendo, Spisak’s counsel
Spisak’s killings in detail during closing                              had been ineffective.28 The Court
arguments at the penalty phase.22 He                                    concluded that with the weight of the
acknowledged Spisak’s admiration for                                    evidence against Spisak, the result
Adolf Hitler inspired his crimes.23 He                                  would not have been different had his
described Spisak as a “‘sick,’” “‘twisted,’”                            counsel been effective.29 Because the
and “‘demented’” individual and said                                    sentencing phase immediately followed
                                                                        the guilt phase, the jurors had the State’s
                                                                        evidence regarding the killings fresh in
17 Id. (quoting Mills, 486 U.S. at 384).
18 Id. (quoting 28 U.S.C. § 2254(d)(1) (2006)).                                                                                     
19 Id. at 684–85.                                                       24 Id. (citations omitted).
20 Id. at 685 (quoting Strickland v. Washington,                        25 Id.
466 U.S. 668, 668 (1984)).                                              26 Id.
21 Id. (quoting Strickland, 466 U.S. at 694).                           27 Id.
22 Id.                                                                  28 Id.
23 Id.                                                                  29 See id. at 685–86.

                                                               ~ Jury Instructions ~

their minds.30                                                                there was a dead body at the residence.37
                                                                              The address provided was June’s
State v. Lyman, 776 N.W.2d 865                                                residence and the call came from a
(Iowa 2010)                                                                   phone listed under her name.38 Shortly
                                                                              after the call to 911 was placed, June
        At issue in Lyman was whether                                         called her daughter-in-law and stated,
the defendant was competent to stand                                          “‘[O]h, God, I just shot Dad.’”39 Deputy
trial, whether the jury was properly                                          Todd Peterson reported to June’s
instructed regarding the elements of                                          residence and saw Leo’s body lying on
second-degree murder, and whether the                                         the floor.40 Peterson saw a revolver
defendant’s trial counsel was ineffective                                     lying directly behind Leo.41 While
in failing to object to or redact the                                         Peterson checked Leo’s vital signs, June
introduction of video evidence of the                                         told Peterson that Leo “deserved what
defendant repeatedly invoking her right                                       he got, he was a child molester, and she
to remain silent.31                                                           hoped he was dead.”42 An EMT on the
                                                                              scene overheard June say she shot
        The Iowa Supreme Court held the                                       Leo.43 During her transport to the law
district court correctly determined the                                       enforcement center, June voluntarily
defendant was competent to stand trial                                        made several incriminating statements
and was not entitled to a specific intent                                     that were documented on the patrol
instruction regarding second-degree                                           car’s video recording system.44 June
murder.32 It found the record                                                 was recorded as saying, “‘I shot the
inadequate to decide her ineffective-                                         fucker. Hey, and I can’t deny it. My
assistance-of-counsel claim.33                                                fingerprints are on the gun.’”45 During
                                                                              the transport, she also repeatedly
        In 1967, June Lyman married Leo                                       referenced her rights to an attorney and
Lyman, Sr.34 During the marriage, Leo                                         to remain silent.46
was alleged to have sexually assaulted
June’s daughters from her previous                                                    At the law enforcement center,
marriage.35 The couple divorced and                                           even after hearing her Miranda
remarried several times over the course                                       warnings, rather than remaining silent,
of forty years.36                                                             June made incriminating statements
                                                                              such as “‘I never thought it was that easy
       On May 15, 2006, an anonymous                                          to die or I would have done it a long
woman called 911, provided an address,                                        time ago,’ and ‘[w]ell, it’s not self-
asked for police assistance, and stated                                       defense actually. I wasn’t threatened,
                                                                              but I had a reasonable reason.’”47
30 Id. at 687. The evidence included                                          37 Id. at 868–69.
photographs of the slain bodies, Spisak’s                                     38 Id. at 869.
boastful and unremorseful confessions, and his                                39 Id.

threats to commit future acts of violence. Id.                                40 Id.
31 State v. Lyman, 776 N.W.2d 865, 870–71                                     41 Id.

(Iowa 2010).                                                                  42 Id.
32 Id. at 879.                                                                43 Id.
33 Id. at 878–79.                                                             44 Id.
34 Id. at 868.                                                                45 Id.
35 Id.                                                                        46 Id.
36 Id.                                                                        47 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

Nevertheless, June continued to request                                 its closing argument, the State
a lawyer and stated “she probably                                       repeatedly referred to June’s request for
should not be saying anything.”48 A                                     an attorney—requests that had invoked
blood-alcohol-content test was                                          her right to remain silent.58 June’s
performed on June, and it was                                           counsel failed to object to these
determined her blood-alcohol content                                    references.59 A unanimous jury found
had been approximately 0.213 when she                                   June guilty of second-degree murder.60
had called 911.49                                                       She appealed.61

        June was charged with first-                                            The supreme court first
degree murder.50 She claimed she was                                    concluded, despite her amnesia, June
unable to remember facts surrounding                                    “was competent to stand trial” and did
the shooting, leaving her unable to help                                receive a fair trial.62 The files and
her attorneys prepare her defense and                                   physical evidence provided by the State
thus rendering her incompetent.51 The                                   made it relatively simple for her defense
district court found June competent to                                  team to reconstruct the basic facts
stand trial.52                                                          surrounding the shooting: only June
                                                                        and Leo were at the house when the
        At trial, the video recordings of                               shooting occurred, there was no
both June’s transport to the law                                        indication a struggle took place before
enforcement center and her detention                                    the shooting, and there were no visible
within the center were played for the                                   injuries on June that indicated Leo
jury.53 Her attorneys did not object to                                 attacked her before the shooting.63
any portion of either video.54 After the                                Furthermore, there was no indication
evidence had been presented, June                                       that signaled June “was in imminent
argued “that because assault, a specific                                danger of death or injury at the time of
intent crime, is a lesser-included offense                              the shooting.”64 Also, after the shooting,
of second-degree murder, the specific                                   she never stated Leo was shot in self-
intent required for an assault must be                                  defense; in fact, all her statements were
proven to establish second-degree                                       to the contrary.65
murder.”55 Therefore, June argued the
State had to prove she specifically                                            Next, the court rejected June’s
intended to commit an assault, even                                     argument that when the district court
though the State was not required to                                    instructed the jury the State was
establish any specific intent to kill.56                                required to prove June shot Leo, the
The district court rejected this                                        court should have also given the jury a
argument, ruling second-degree murder                                   specific intent instruction because a
is not a specific intent crime.57 During                                shooting is an assault, and an assault
                                                                        can only be committed with specific
48 Id.
49 Id. at 870.                                                                                                                      
50 Id.                                                                  58 Id.
51 Id.                                                                  59 Id.
52 Id.                                                                  60 Id.
53 Id.                                                                  61 Id.
54 Id.                                                                  62 Id. at 876.
55 Id.                                                                  63 Id. at 875.
56 Id.                                                                  64 Id.
57 See id.                                                              65 Id. at 875–76.

                                                               ~ Jury Instructions ~

intent.66 The supreme court noted it is                                       pursue a tactical advantage.76 Without
well-settled second-degree murder “is a                                       such a record, the court was unwilling to
general intent crime,” requiring only                                         consider the issue.77
proof of malice aforethought.67 The first
element the State had to establish to                                         State v. Schuler, 774 N.W.2d 294
convict June of murder in the second                                          (Iowa 2009)
degree was she killed another person.68
How the killing was accomplished was                                                 At issue in Schuler was the
irrelevant.69 According to the court,                                         validity of a jury instruction for the
June could have shot Leo or simply                                            crime of willful injury causing serious
withheld medical care if it was proven                                        injury.78 The Iowa Supreme Court held
she was required to provide such care.70                                      the instruction impermissibly lowered
The manner of killing is not an element                                       the State’s burden of proof by requiring
of second-degree murder; the only                                             it prove only the victim “sustained” a
element required under Iowa law is that                                       serious injury instead of demonstrating
June “did an act that killed another                                          the defendant’s actions “caused” a
person.”71 Thus, by proving she “did an                                       serious injury.79
act to kill Leo with malice aforethought,”
the State proved June was guilty of                                                   A jury convicted Schuler of willful
second-degree murder.72 Under Iowa                                            injury causing serious injury for his
law, “neither the killing of another                                          involvement in a fracas outside a
person nor malice aforethought requires                                       gentleman’s club in Waterloo, Iowa.80
specific intent.”73 Consequently, the                                         Iowa Code section 708.4(1) provides one
district court did not err in refusing to                                     commits willful injury causing serious
provide a specific intent instruction                                         injury when one “does an act which is
for murder in the second degree.74                                            not justified and which is intended to
                                                                              cause serious injury to another . . . [and]
       Finally, the court concluded it                                        the person causes serious injury to
could not determine whether June’s                                            another.”81 Before the case was
counsel was ineffective because the                                           submitted to the jury, Schuler objected
record before it did not reveal whether                                       to the jury instruction defining willful
her defense counsel purposefully                                              injury.82 The instruction permitted the
avoided contesting the prosecutor’s                                           jury to find Schuler guilty upon a finding
comments.75 The record did not disclose                                       of the following:
whether June’s defense counsel simply
chose to forego such arguments to                                                  (1)      On or about August 31, 2006, the
                                                                                            Defendant punched, kicked,
                                                                                            and/or grabbed Lucas Spinelli.
66 Id. at 876.
67 Id. at 877 (citing State v. Kraus, 397 N.W.2d
671, 672–73 (Iowa 1986)).
68 Id.                                                                                                                                    
69 Id.                                                                        76 Id.
70 Id.                                                                        77 Id. at 879.
71 Id.                                                                        78 State v. Schuler, 774 N.W.2d 294 (Iowa 2009).
72 See id.                                                                    79 Id. at 298.
73 Id.                                                                        80 Id. at 295.
74 Id.                                                                        81 Id. at 298.
75 Id. at 878–79.                                                             82 Id. at 297.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

     (2) The Defendant specifically                                     vacated, in part, the court of appeals’
         intended to cause a serious injury                             decision.90
         to Lucas Spinelli.
                                                                                The State filed first-degree-
     (3) Lucas Spinelli sustained a serious
                                                                        murder charges against Spates following
         injury.83                                                      a shootout between two rival gangs in
                                                                        Waterloo, Iowa.91 The State alleged
        Schuler argued the instruction                                  Spates, along with other members of his
failed to require the jury to find him                                  gang, “‘The Hood,’” engaged in a gun
guilty on the causation element of the                                  battle with members of the “‘L-Block’”
crime.84 Although instructions need not                                 gang.92 During the fracas, a bystander
be identical to the statute, the court held                             was shot and killed as she was standing
that the use of the word “sustained” is                                 in her kitchen.93 Ballistic evidence
substantively different than “caused.”85                                revealed the victim was struck by a
Under the instruction, the court                                        bullet shot from an assault rifle, but the
continued, the jury could have convicted                                bullet was not linked to a specific
Schuler without a finding that Schuler                                  weapon.94 The State charged Spates
caused the victim’s injuries.86 Finding                                 with first-degree felony murder in
the error prejudicial, the court reversed                               violation of Iowa Code section 707.2.95
and remanded.87
                                                                                At trial, the prosecution argued
State v. Spates, 779 N.W.2d 770                                         Spates’s brother, Carl, shot and killed
(Iowa 2010)                                                             the victim and Spates aided and abetted
                                                                        Carl.96 Following the presentation of
        In this action stemming from                                    evidence, Mr. Bevel and Mr. Standafer,
Spates’s first-degree-murder conviction,                                Spates’s attorneys, discussed jury
the Iowa Supreme Court addressed two                                    instructions.97 During this discussion,
issues: (1) whether the district court                                  the following exchange took place:
erroneously failed to give a jury
instruction on voluntary manslaughter                                                 MR. BEVEL: Well I think
and (2) whether the district court judge                                              we would just—we would
erred in submitting a “‘mutual combat’”                                               ask           voluntary
instruction to the jury.88 The court held                                             manslaughter—
Spates failed to preserve error on the
voluntary manslaughter issue and the                                                  ....
district court did not err in submitting
the mutual combat instruction to the
jury.89 The court, therefore, affirmed
the district court’s judgment and                                       90 Id.
                                                                        91 See id. at 772–73.
                                                                        92 See id.
83 Id. at 298.                                                          93 Id. at 773.
84 Id. at 297.                                                          94 Id. According to trial testimony, Spates had a
85 Id. at 298.                                                          shotgun during the gunfight, while his brother
86 Id.                                                                  had an assault rifle. Id. at 772.
87 Id. at 300–01.                                                       95 See id. at 773 (citing IOWA CODE § 707.2
88 State v. Spates, 779 N.W.2d 770, 772 (Iowa                           (2003)).
2010).                                                                  96 Id. & n.1.
89 Id. at 781.                                                          97 Id. at 774.

                               ~ Jury Instructions ~

    MR. STANDAFER: Judge,                                   best interest to submit
    this is one of them unique                              voluntary manslaughter.98
    situations, I guess it
    happens sometimes, but as                 At that point, Spates’s codefendant’s
    co-counsel I think Mr.—I                  attorneys requested a voluntary
    just got to be honest with                manslaughter instruction.99 The court,
    the Court, Mr. Bevel and I                denying the request for the instruction,
    disagree. I don’t think it’s              concluded that a factual basis did not
    appropriate to submit—                    exist for the instruction.100
    and I think I addressed
    this to the Court earlier—I                      After rejecting the voluntary
    don’t think it’s appropriate              manslaughter instruction, the district
    to     submit      voluntary              court gave the following instruction to
    manslaughter in this case.                the jury:

    THE COURT: Okay                                                If you find that
                                                            either of the defendants, or
    MR. FERGUSON: Just so                                   any person or persons that
    the record is clear, Your                               either of the defendants
    Honor,            voluntary                             was acting together with,
    manslaughter is a lesser                                were voluntarily engaged
    included under a legal                                  in mutual combat by
    theory, but it would not be                             shooting guns at each
    under     the    facts   as                             other     and     that,   by
    submitted, the evidence in                              exchanging gunfire, they
    this case—                                              jointly created a zone of
                                                            danger likely to result in
    MR. STANDAFER: That’s                                   the death or injury of
    what I have a problem                                   innocent bystanders, then
    with.                                                   you may also find that
                                                            each of the combatants,
    THE COURT:          Okay.                               including the defendant,
    That’s your position and                                aided and abetted each of
    Mr. Ferguson’s position.                                the other combatants and
    Mr. Bevel thinks—                                       it makes no difference
                                                            which of the combatants
    MR. BEVEL:       Well I’ll—                             fired the first shot or
    I’ll—                                                   which of the combatants
                                                            fired the shot which struck
    MR. STANDAFER: I think                                  and killed [the victim].
    Mr. Ferguson is correct.
    And—and for strategic—I’ll                                    To        constitute
    just say for the record on                              “mutual combat” there
    behalf of my client, for                                must exist a mutual intent
    strategic reasons, also, and                                                                          
    based on the facts, I don’t               98 Id. at 774–75 (footnote omitted).
    think it’s in my client’s
                                              99 Id. at 775.
                                              100 See id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

              and willingness to fight                                  violence, while sufficient, is not
              and this intent may be                                    required; it is enough that ‘there was a
              manifested by the acts and                                concurrent or mutual expectation that a
              conduct of the parties and                                street battle would ensure.’”109
              the         circumstances
              attending and leading up                                          The court then explained criminal
              to the combat.101                                         responsibility for mutual combat rests
                                                                        upon two theories: proximate cause
Spates objected to this “mutual                                         liability and liability as an aider and
combat” instruction.102 He                                              abettor.110 The court discussed how
argued “a defendant could not be                                        each of these theories have been applied
held liable as an aider and abettor                                     in the past and concluded that, in Iowa,
under a theory of mutual combat                                         a defendant can be held criminally
when the prosecution could not                                          responsible under both.111 The court
prove who fired the shot that                                           explained:
killed the innocent bystander.”103
The court overruled Spates’s                                                                  Our cases support a
objection.104                                                                         conclusion that the acts of
                                                                                      a defendant engaged in
       The Iowa Supreme Court first                                                   mutual combat can be the
addressed whether the district court                                                  proximate cause of injury
improperly denied the voluntary                                                       to an innocent bystander
manslaughter instruction.105 Before                                                   that directly results from
reaching the merits of the issue,                                                     the     act   of    another
however, the court held Spates failed to                                              combatant. Provided the
preserve the issue for appeal.106                                                     defendant possesses the
Although Mr. Bevel requested the                                                      requisite mens rea for the
instruction, the court found “it clearly                                              crime charged, he can be
appeared that Mr. Standafer’s position                                                held liable as a principle.
prevailed as between the defendant’s                                                  We think the same
counsel.”107 Consequently, the court                                                  participation in mutual
vacated the court of appeals’s opinion                                                combat can also provide a
regarding the latter’s finding the trial                                              basis to hold the defendant
court erred in denying the voluntary                                                  responsible as an aider
manslaughter instruction.108                                                          and abettor under Iowa
      Turning to the definition of
mutual combat, the court found “an                                             Applying its approval of the
express or tacit agreement to engage in                                 mutual combat instruction to the case at
                                                                        bar, the court concluded the district
                                                                        court properly instructed the jury.113
101 Id. at 775–76.
102 Id. at 776.                                                                                                                     
103 Id.                                                                 109  Id. at 776 (quoting Roy v. United States, 871
104 See id.                                                             A.2d 498, 508 (D.C. 2005)).
105 Id. at 775.                                                         110 Id. at 776–77.
106 Id.                                                                 111 Id. at 777–79.
107 Id.                                                                 112 Id. at 779.
108 Id.                                                                 113 Id. at 781.

                                                               ~ Jury Instructions ~

The court reasoned the State need not
demonstrate the defendant was the
shooter who killed the bystander in
order for a mutual combat instruction to
be warranted.114 The instruction will be
upheld so long as the State
demonstrates the “defendant ‘aided or
abetted the murderer or engaged in joint
criminal conduct with him.’ . . . So long
as the murderer is shown to be another
participant in the mutual combat, the
necessary factual link between the
defendant’s aiding and abetting and the
actual murder is present.”115 The court
concluded the instruction adequately
reflected Iowa’s “mutual combat”
jurisprudence and affirmed the
judgment of the district court.116

114 See id. at 780 (citing State v. Kern, 307

N.W.2d 29, 30 (Iowa 1981)).
115 Id. at 780–81 (quoting Kern, 307 N.W.2d at

116 Id. at 779–81. The court, however, noted the

mutual combat instruction may be in error so far
as it defines aiding and abetting as “‘either of the
defendants, or any person or persons that either
of the defendants was acting together with,
were voluntarily engaged in mutual combat.’” Id.
at 781 n.6. The court stated, “[F]or aiding-and-
abetting liability, the defendant himself must
‘knowingly approve[] and agree[] to the
commission of a crime, either by active
participation in it or by knowingly advising or
encouraging the act in some way before or when
it is committed.’” Id. (quoting State v. Allen, 633
N.W.2d 752, 754 (Iowa 2001)). The instruction
in Spates, therefore, may have been too broad
and should instead require “the defendant
himself be engaged in mutual combat before he
can be held to have aided and abetted other
combatants.” Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

XII. SENTENCING                                                         withdraw “was ‘nothing more than game
                                                                        playing’” on Jordan’s part.7
State v. Jordan, 779 N.W.2d 751
(Iowa 2010)                                                                    On April 7, attorney Smith
                                                                        renewed her motion at a pretrial
       The issue in Jordan was whether                                  conference held before a different
the district court abused its discretion in                             judge.8 This time, the district court
denying Jordan’s Request for Extension                                  granted the motion and agreed to
of Time for Filing Pretrial Motions and                                 appoint a new attorney.9 Later that day,
for Providing Notice of Defenses to the                                 the district court judge appointed
State, Notice of Diminished Capacity                                    Michael Bandy as Jordan’s new
Defense, and Request for Expert at                                      counsel.10 Within a month, Bandy filed
State’s Expense.1 Writing for the court,                                a Request for Extension of Time for
Justice Appel held the district court                                   Filing Pretrial Motions and for
abused its discretion in denying                                        Providing Notice of Defenses to the
Jordan’s requests because (1) the State                                 State, Notice of Diminished Capacity
was not prejudiced by the untimely                                      Defense, and a Request for Expert at
motion, (2) Jordan demonstrated good                                    State’s Expense.11 Bandy argued the
cause, and (3) the evidence failed to                                   deadline should be extended because
overcome the presumption of prejudice                                   good cause warranted the extension.12
to Jordan’s defense.2                                                   Bandy argued:

       Jordan was charged with second-                                                [I]n this case I guess the
degree theft in violation of Iowa Code                                                good cause would be is
sections 714.1(1), 714.2(2), and 902.8                                                that I am a new attorney to
following an incident at J.C. Penney’s in                                             Mr. Jordan and that in my
which he allegedly stole over $2,000                                                  talks with him it became
worth of merchandise.3 He filed a                                                     obvious to me that this was
written arraignment on February 13,                                                   something that needed to
2006, and pleaded not guilty.4 The                                                    be filed.     I have no
deadline for Jordan to file pretrial                                                  explanation as to why Miss
motions and any notices of affirmative                                                Smith didn’t do that or
defenses was set for March 27, 2006.5                                                 didn’t perceive it. I mean
Prior to the deadline, Jordan’s attorney,                                             she just might not have
Kelly Smith, filed a motion to withdraw                                               came     to    the      same
as counsel, claiming “the attorney-client                                             conclusion that I did. 13

relationship had deteriorated beyond
repair.”6 On March 24, the judge denied                                       The district court determined
the motion, determining the request to                                  good cause had not been shown to exist
                                                                        7 Id.
                                                                        8 Id.
1 State v. Jordan, 779 N.W.2d 751, 753–54 (Iowa                         9 Id.

2010).                                                                  10 Id.
2 See id. at 755–56.                                                    11 Id.
3 Id. at 752–53.                                                        12 Id.; see also IOWA R. CRIM. P. 2.11(11)(d)
4 Id. at 753.                                                           (stating a district court judge may extend the
5 Id.                                                                   filing deadline if good cause is shown).
6 Id.                                                                   13 Id. at 753–54.

                                                               ~ Sentencing ~

and denied the pending motions.14 It                                       filed.23 The court held, “The State’s
eventually found Jordan guilty of                                          interest and the purpose of rule
second-degree theft under Iowa Code                                        2.11(11)(d) . . . was not served by denying
sections 714.1(1), 714.2(2), and 902.8.15                                  Jordan’s motion for an extension.”24
Jordan appealed, and the court of
appeals found that while the district                                              Furthermore, the court reasoned
court had abused its discretion in not                                     that although appointment of new
extending the deadline, a reversal of                                      counsel does not always constitute good
Jordan’s conviction was not necessary                                      cause, the facts in this case showed
because Jordan failed to demonstrate he                                    appointment of new counsel established
was prejudiced by the error.16 The Iowa                                    good cause.25 The length of time a
Supreme Court granted Jordan’s                                             lawyer has been involved in a case is a
application for further review.17                                          relevant factor courts consider in
                                                                           determining existence of good cause.26
        The supreme court first explained                                  In this case, Bandy was Jordan’s second
district courts possess discretion in                                      attorney, as opposed to sixth or seventh,
assessing whether good cause warrants                                      a fact which was not found to evidence
an extension of deadlines.18 During its                                    intent to cause delay.27 Additionally,
analysis, “the district court should                                       Bandy filed the motion to extend
carefully weigh ‘the interest of the                                       deadlines within a month of his
defendant in a full and fair trial against                                 appointment as Jordan’s attorney.28
the interests of avoiding surprise and                                     The court, therefore, concluded the
delays.’”19 Two factors courts may                                         length of time Bandy represented
consider in applying this balancing test                                   Jordan militated in favor of good
include (1) “the adequacy of the                                           cause.29
defendant’s reasons for failing to comply
with the applicable rules of procedure”                                           Finally, the court addressed
and (2) “whether the State was                                             whether Jordan was prejudiced as a
prejudiced as a result.”20                                                 result of the district court’s erroneous
                                                                           ruling.30 The court stated, “We presume
        Applying this framework, the                                       prejudice—that a substantial right of the
court concluded the State was not                                          defendant has been affected—‘and
prejudiced as a result of the untimely                                     reverse unless the record affirmatively
filing.21 The court emphasized the State                                   establishes otherwise.’”31 The court
had “ample opportunity” to investigate                                     found the State failed to overcome the
Jordan’s diminished responsibility                                         presumption of prejudice because “there
defense.22 In fact, trial did not occur
until nearly a year after notice was                                       23 Id.
                                                                           24 Id. (citing State v. Lewis, 391 N.W.2d 726, 729
14 Id. at 754.                                                             (Iowa Ct. App. 1986)).
15 Id.                                                                     25 Id. (citing State v. Grimme, 338 N.W.2d 142,
16 Id.                                                                     145 (Iowa 1983)).
17 See id.                                                                 26 Id. (citing Grimme, 338 N.W.2d at 145).
18 See id. at 755 (citing State v. Taylor, 336                             27 Id.

N.W.2d 721, 724 (Iowa 1983)).                                              28 Id.
19 Id. (citations omitted).                                                29 See id.
20 Id.                                                                     30 Id. at 756.
21 Id.                                                                     31 Id. (quoting State v. Newell, 710 N.W.2d 6, 19
22 Id.                                                                     (Iowa 2006)).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

is little to no evidence in the record of                               authority to stop the defendant’s ability
Jordan’s mens rea at the time of the                                    to earn time concerning his operating
offense.”32 Therefore, the court held it                                while intoxicated (OWI) conviction
could not conclude whether the trial                                    when the requirement he participate in a
court’s failure to allow Jordan’s                                       sex offender treatment program (SOTP)
assertion of his diminished                                             arose from his conviction for assault
responsibility defense was in fact                                      with intent to commit sexual abuse.37
harmless.33 Accordingly, the court                                      With regard to this issue, the court
vacated the decision of the court of                                    found the department did have the
appeals and reversed and remanded the                                   statutory authority to require Waters to
judgment of the district court.34                                       participate in a SOTP.38

Waters v. Iowa District Court for                                               In May 2004 Waters was
Henry County, 783 N.W.2d 487                                            convicted of OWI, and in August of the
(Iowa 2010)                                                             same year he pleaded guilty to assault
                                                                        with intent to commit sexual abuse.39
       Waters was another companion                                     He received a term of incarceration not
case to Dykstra v. Iowa District Court                                  to exceed five years for the former and a
for Jones County.35 It presented three                                  term not to exceed two years for the
issues to the Iowa Supreme Court, two                                   latter.40 He was also ordered to
of which had been determined in                                         complete a SOTP and register as a sex
Dykstra.36 The third issue the court                                    offender.41 In May 2005, Waters
addressed more in-depth: Whether the                                    discharged his assault with intent to
Iowa Department of Corrections had the                                  commit sexual abuse sentence.42 In
                                                                        December 2005, he was classified and
32 Id.                                                                  ordered to attend a SOTP.43 He refused
33 Id.                                                                  to attend, which carried a penalty of the
34 Id.
35 Waters v. Iowa Dist. Court for Henry County,                         loss of the ability to accumulate earned
783 N.W.2d 487, 488 (Iowa 2010) (referencing                            time.44 Because of his refusal, his
Dykstra v. Iowa Dist. Court for Jones County,                           tentative discharge date changed from
783 N.W.2d 473 (Iowa 2010)). Dykstra is                                 July 2006 to March 2007.45
discussed in Part VII.
36 See id. at 488–89. The two issues were

whether application of the 2005 amendment to
                                                                              Waters appealed the
Iowa Code section 903A.2 to an offense                                  determination he could no longer obtain
committed before the amendment took effect—                             a reduction in sentence, but his appeal
but after the 2001 amendment was in place—                              was denied by the deputy warden.46 He
violated the Iowa and United States
Constitutions’ Ex Post Facto Clauses, and
whether the 2005 amendment could
retroactively apply to the defendant’s sentence.                                                                                    
Id. (referencing IOWA CODE § 903A.2 (Supp.                              37 Waters, 783 N.W.2d at 489.
2005)). The court came to the same conclusion                           38 Id. at 489–90.
it had in Dykstra; the Ex Post Facto Clauses                            39 Id. at 488.

were not violated and the statute could be                              40 Id.

applied retroactively because the amendment                             41 Id.

merely clarified existing law, it did not change it.                    42 Id.

Id. at 489 (citing Holm v. Iowa Dist. Court, 767                        43 Id.

N.W.2d 409, 416 n.3 (Iowa 2009)); see also                              44 Id.

Dykstra, 783 N.W.2d at 478 (reaching the same                           45 Id.

conclusion).                                                            46 Id.

                                                               ~ Sentencing ~

then sought postconviction relief, but
the district court also denied relief.47

        As was the case in Dykstra, the
2005 amendment to Iowa Code section
903A.2 was applied to Waters by the
Iowa Department of Corrections in
regard to a sentence for a non-sex-
related offense.48 The court relied on its
holding in Dykstra—the statute does not
require the “‘sentence’” at issue be one
connected to the reason the department
required the inmate attend a SOTP.49
While Dykstra did not address whether
there is a limitation on the department’s
discretion to rely on past sexual
incidents or convictions that do not
testify to “a ‘problem currently
suffered,’” Waters’s most recent
conviction was for a sexual offense—
assault with intent to commit sexual
abuse.50 The sentencing judge required
Waters attend a SOTP and sign up on
the sex offender registry, and Waters
entered prison serving the sentence for
assault with intent to commit sexual
abuse concurrently with his OWI

       The court found the department
“acted within its statutory authority”
when it required Waters participate in a

47 Id.
48 Id. at 489; see also Dykstra v. Iowa Dist. Court
for Jones County, 783 N.W.2d 473, 478 (Iowa
2010) (noting the same amendment was applied
to Dykstra for a crime that also took place before
the amendment’s enactment).
49 Waters, 783 N.W.2d at 489 (citing Dykstra,

783 N.W.2d at 479).
50 Id. (citations omitted).
51 Id.
52 Id. at 489–90.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

XIII.               PROFESSIONAL CONDUCT                                providing immigration-related legal
Iowa Supreme Court Attorney
Disciplinary Board v. Carpenter,                                                With regard to the seventeen
781 N.W.2d 263 (Iowa 2010)                                              federal immigration matters, Carpenter
                                                                        neglected to deposit unearned fees in a
       Carpenter is not licensed to                                     trust account, and he withdrew funds
practice law in Iowa.1 However, he was                                  without providing proper accounting to
permitted to practice in federal law                                    his clients.9 He also failed to take
matters in the state.2 The Iowa Supreme                                 reasonable steps to guard his clients’
Court Attorney Disciplinary Board filed                                 interest upon the termination of his
charges against Carpenter based on his                                  representation and did not promptly nor
representing clients in seventeen federal                               diligently communicate with some
immigration matters, trust account                                      clients.10 In one instance, he failed to
violations, and two misdemeanor                                         reply to two notices from the Board
convictions.3 The Iowa Supreme Court                                    regarding the client’s complaint.11 The
determined he engaged in the charged                                    Court found Carpenter neglected each
misconduct and ordered he not practice                                  client’s legal matters and failed to
law for at least two years.4 He must also                               inform his clients about their cases, a
include with any request to lift this order                             violation of Iowa Rules of Professional
an evaluation by a licensed healthcare                                  Conduct 32:1.3, 32:1.4, 32:1.16(d), and
professional stating he is fit to practice                              32:8.4(d).12 With respect to the trust
law.5                                                                   account violations, the Court found
                                                                        Carpenter violated several ethical rules
       Carpenter is licensed to practice                                in failing to deposit, and properly
law in Minnesota but not Iowa due to a                                  account for, fees in a trust account, a
suspension in October 2007 stemming                                     violation of Iowa Rules of Professional
from a depression-related disability.6 In                               Conduct 32:1.4, 32:1.15, 32:1.16(d), and
September 2008, his Minnesota license                                   Iowa Court Rule 45.7.13 In failing to
was transferred to a disability-inactive                                respond to the Board’s inquires, he
status.7 However, from 2005 to 2007,
Carpenter maintained offices in Iowa for                                                                                            
                                                                        8 Id. at 267. Iowa Rule of Professional Conduct

                                                                        35:5.5(3)(2) allows an attorney not admitted in
                                                                        Iowa to practice in limited circumstances: “A
                                                                        lawyer admitted in another United States
                                                                        jurisdiction, and not disbarred or suspended
1 Iowa Supreme Court Attorney Disciplinary Bd.                          from practice in any jurisdiction, may provide
v. Carpenter, 781 N.W.2d 263, 265 (Iowa 2010).                          legal services in this jurisdiction that . . . are
2 Id. (citing IOWA RULES OF PROF’L CONDUCT R.                           services that the lawyer is authorized to provide
32:5.5(d)(2)).                                                          by federal law or other law of this jurisdiction.”
3 Id.                                                                   Id. at 266 (quoting IOWA RULES OF PROF’L
4 See id. at 272.                                                       CONDUCT R. 32:5.5(d)(2)).
5 Id.                                                                   9 Id. at 268.
6 Id. at 266. Since then, he has also been                              10 Id.

suspended from practicing law before the Board                          11 Id.

of Immigration Appeals, the Immigration Courts                          12 Id. at 268–69 (citing Iowa Supreme Court

and the Department of Homeland Security. Id.                            Attorney Disciplinary Bd. v. Earley, 774 N.W.2d
n.2.                                                                    301, 307 (Iowa 2009)).
7 Id.                                                                   13 Id. at 269 (citations omitted).

                                                               ~ Professional Conduct ~

violated Iowa Rule of Professional                                              law—for at least two years.20 Due to
Conduct 32:8.1.14                                                               Carpenter’s past issues with depression,
                                                                                any request to practice or become
        On March 29, 2007, Carpenter                                            licensed in Iowa must include an
was convicted of his second operating                                           evaluation from a healthcare
while intoxicated (OWI), and on May 23,                                         professional that verifies his fitness to
2007, he was convicted of driving while                                         practice.21
his license was suspended.15 The
supreme court held, in doing so, he                                             Iowa Supreme Court Attorney
violated Iowa Rules of Professional                                             Disciplinary Board v. Earley, 774
Conduct 32:8.4(a), (b), and (d).16                                              N.W.2d 301 (Iowa 2009)

        In determining appropriate                                                     In Earley, a previously
sanctions, the court noted the peculiar                                         disciplined attorney was charged with
circumstance of sanctioning a non-Iowa-                                         multiple ethical violations, including
licensed attorney, as the standard                                              misappropriation of clients’ funds.22
sanction of suspending an Iowa law                                              The Iowa Supreme Court determined
license was not feasible.17 Nonetheless,                                        license revocation was the appropriate
utilizing limitations through injunctive                                        sanction, especially because some of the
and equitable powers that effectively                                           misconduct occurred during a prior
suspend an attorney’s license were                                              disciplinary action the attorney had
necessary in this situation to protect                                          before the supreme court.23
Iowa citizens.18
                                                                                       Earley began practicing law in
       The court issued its ruling based                                        Iowa in 1993.24 He had previously been
on previous case law for violations based                                       reprimanded by the Iowa Supreme
on neglect, trust account violations, and                                       Court in 2007 for a number of ethical
criminal offenses, while remaining                                              violations and was suspended for four
cognizant of the mitigating factor                                              months.25 In October 2008, the Iowa
Carpenter’s depression and treatment                                            Supreme Court Attorney Disciplinary
thereof played in his overall sanction.19                                       Board filed a complaint alleging Earley
The hearing panel’s thirty-month                                                violated his ethical duties once again.26
suspension was translated into                                                                                                              
injunctive relief, and Carpenter was                                            20 Id. 271 (citing IOWA RULES OF PROF’L CONDUCT
ordered to cease and desist from                                                R. 32:5.5(d)(2)).
practicing law in Iowa—and any other                                            21 Id. at 272.
                                                                                22 Iowa Supreme Court Attorney Disciplinary Bd.

                                                                                v. Earley, 774 N.W.2d 301, 305 (Iowa 2009).
                                                                                23 Id. at 309.

                                                                                24 Id. at 304–05 (citing Iowa Supreme Court
14 Id. (citing Iowa Supreme Court Attorney                                      Attorney Disciplinary Bd. v. Earley, 729 N.W.2d
Disciplinary Bd. v. Dull, 713 N.W.2d 199, 205                                   437, 440 (Iowa 2007)).
(Iowa 2006)).                                                                   25 Id. at 305 (citing Earley, 729 N.W.2d at 442–
15 Id. at 267 (referencing IOWA CODE §§ 321J.2,                                 43).
321.J.21 (2007)).                                                               26 Id. Earley was alleged to have neglected cases;
16 Id. at 269.                                                                  failed to return files, inform and communicate
17 Id.                                                                          with his clients regarding the progress of their
18 Id. at 269–70 (citing In re Tonwe, 929 A.2d                                  cases, properly account client funds, and return
774, 781–82 (Del. 2007)).                                                       client property; and misappropriated client
19 Id. at 270–71.                                                               funds. Id. at 305–08.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

In early 2009, Earley stated he would
answer the complaint and admit to all                                           Next, the court examined Earley’s
the allegations therein.27 Earley and the                               failure to inform, communicate,
Board also agreed to submit a joint                                     account, and return property.39
recommendation regarding the                                            Misconduct arose from his failure to
appropriate sanction.28 Earley,                                         inform his clients “about the status of
however, failed to do all of these.29 He                                their cases,” communicate with them
also failed to appear at his hearing,                                   after their multiple requests for
which lead to the uncontested                                           information, inform them with regard to
admittance of the Board’s evidence.30                                   the money entrusted him, and inform
His failure to respond constituted an                                   them of his suspension.40
admission of the allegations against
him.31 The grievance commission                                                Last, the court addressed the
recommended the revocation of Earley’s                                  misappropriation and dishonesty
practitioner’s license.32                                               claims.41 Earley’s misappropriation and
                                                                        misrepresentation of his clients’ funds
        The court addressed each of                                     were found to constitute both
Earley’s ethical violations in turn,                                    dishonesty and theft.42
beginning with neglect.33 An attorney is
required “‘to attend to matters entrusted                                      The court noted it determines
to his care and to do so in a reasonably                                sanctions based on the specific
timely manner.’”34 Discipline will be                                   circumstances of each individual case.43
administered if an attorney consistently                                Significant distinguishing factors
fails to perform the obligations he or she                              include “‘the existence of multiple
has assumed or consciously disregards                                   instances of neglect, past disciplinary
the responsibilities he or she owes a                                   problems, and other companion
client.35 The court found Earley                                        violations.’”44 The court considers
neglected the legal matters of his clients                              misappropriation of client funds to be a
and failed to protect their interests in                                particularly egregious offense,
representing them.36                                                    warranting permanent license
                                                                        revocation.45 “‘[D]isbarment will nearly
        The court next addressed Earley’s                               always follow such wrongdoing.’”46
failure to return his clients’ files.37 It                                                                                          
found he engaged in this misconduct                                     39 Id.
when he failed to return the files after                                40 Id. at 307–08.
his clients had requested them.38                                       41 Id. at 308.
                                                                        42 Id. (citations omitted).

                                                                        43 Id. (citing Iowa Supreme Court Bd. of Prof’l
27 Id. at 305.                                                          Ethics & Conduct v. Plumb, 598 N.W.2d 746,
28 See id.                                                              748–49 (Iowa 1999)). The court considers “‘the
29 Id.                                                                  nature of the violations, the need for deterrence,
30 Id.                                                                  protection of the public, maintenance of the
31 Id.                                                                  reputation of the Bar as a whole, and the
32 Id.                                                                  violator’s fitness to continue to practice law.’”
33 Id. at 307.                                                          Id. (citations omitted).
34 Id. (citations omitted).                                             44 Id. (citations omitted).
35 Id. (citations omitted).                                             45 Id. (citations omitted).
36 Id.                                                                  46 Id. at 309 (quoting Iowa Supreme Court Bd. of
37 Id.                                                                  Prof’l Ethics & Conduct v. Carr, 588 N.W.2d 127,
38 Id.                                                                  129 (Iowa 1999)).

                                                               ~ Professional Conduct ~

Earley’s misconduct was found to be                                             Iowa Supreme Court Attorney
extensive and his misappropriation of                                           Disciplinary Board.55 Hauser never
client funds intolerable.47 The court                                           responded to the complaint.56 He was
noted if it had known of the misconduct                                         charged with
at issue during Earley’s previous
disciplinary action, it would “have                                                           ceasing to work on his
imposed a more severe sanction.”48 The                                                        client’s case without taking
court held license revocation was the                                                         the proper steps to
proper sanction.49                                                                            withdraw;        failing    to
                                                                                              adequately communicate
Iowa Supreme Court Attorney                                                                   with his client; failing to
Disciplinary Board v. Hauser, 782                                                             notify his client of the trial
N.W.2d 147 (Iowa 2010)                                                                        date; failing to attend the
                                                                                              trial, resulting in a default
        In Hauser, an attorney was found                                                      judgment       against     his
to have been neglectful and violated                                                          client; failing to furnish his
numerous ethical rules in the handling                                                        client with a timely and
of a client’s dissolution of marriage,                                                        complete           accounting
though it was not shown he was                                                                regarding earned fees; and
incompetent.50 The Iowa Supreme                                                               failing to respond to a
Court suspended his license to practice                                                       request for information
law indefinitely, and held at least six                                                       from the board.57
months needed to pass before there
could be any possibility of                                                     When Hauser failed to respond to this
reinstatement.51                                                                complaint, the grievance commission
                                                                                found the allegations had been
        Hauser has practiced law in Iowa                                        admitted.58
for over twenty years and has been
reprimanded several times for ethical                                                   After this, the Board moved to
violations.52 This matter before the                                            amend its complaint to include Hauser’s
court was in regard to a dissolution                                            alleged failure to keep records of his
action Hauser began handing in 2005                                             trust account pertaining to the retainer
when he was given a $1000 retainer by                                           he had received.59 A hearing was held
his client.53 He failed to appear at—and                                        on this amendment, and Hauser
inform his client of—the trial, which                                           testified as to the withdrawals from the
resulted in a default decree.54 Following                                       trust account and his history of alcohol
the decree, Hauser failed to return his                                         abuse, arguing the latter affected his
client’s phone calls, and his client                                            professional performance.60 Despite his
subsequently filed a complaint with the                                         testimony, the commission found
                                                                                Hauser committed the alleged ethical
47 Id.                                                                          violations and concluded he was
48 Id.
49 Id.                                                                                                                                      
50 Iowa Supreme Court Attorney Disciplinary Bd.                                 55 Id.
v. Hauser, 782 N.W.2d 147, 153 (Iowa 2010).                                     56 Id.
51 Id. at 154.                                                                  57 Id.
52 Id. at 149–50.                                                               58 Id. at 151.
53 Id. at 150.                                                                  59 Id. (citations omitted).
54 Id.                                                                          60 Id. at 151–52.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

presently unfit to practice law.61 The                                  abandonment of his client, his prior
commission recommended Hauser’s                                         extensive history of ethical infractions,
practitioner’s license be indefinitely                                  and his failure to timely and
suspended without the possibility of                                    appropriately respond to the board’s
reinstatement for at least nine months.62                               inquiries.”69

        The Iowa Supreme Court agreed                                          The court held Hauser’s “license
with the Board’s complaints and                                         to practice law should be suspended
acknowledged almost all Hauser’s                                        indefinitely with no possibility of
transgressions were violations of ethical                               reinstatement for six months.”70
rules.63 The court, however, did not find                               Further, prior to applying for
there was clear and convincing evidence                                 reinstatement, Hauser must provide an
his conduct evidenced incompetence.64                                   evaluation by a healthcare professional
To establish incompetence, the Board                                    that verifies his fitness to resume the
was required to show Hauser “(1) ‘did                                   practice of law.71 He was also required
not possess the necessary legal                                         to confirm he has accounted to his client
knowledge and skill to complete the                                     for the retainer paid and refunded any
tasks’ or (2) ‘had not made a competent                                 unearned fees.72
analysis of the factual and legal elements                               
of the problem[].’”65 The record                                        Iowa Supreme Court Attorney
established serious neglect and multiple                                Disciplinary Board v. Hoglan, 781
rules violations on the part of Hauser,                                 N.W.2d 279 (Iowa 2010)
but it did not establish evidence of                                     
incompetence.66                                                                Hoglan was charged with
                                                                        multiple ethical violations stemming
       In determining a sanction, the                                   from dilatory conduct resulting in
court noted severe neglect was the                                      dismissal of three appeals for failure to
underlying ethical violation, and typical                               prosecute and one claim for failure to
sanctions for neglect have ranged from                                  perfect administrative appeal.73 The
public reprimand to six-month                                           Iowa Supreme Court suspended his
suspensions.67 The punishment                                           license to practice for thirty days and
imposed often depends upon whether                                      required he provide an evaluation from
there have been “‘multiple instances of                                 a licensed healthcare professional that
neglect, past disciplinary problems, and                                verifies his fitness to practice.74
other companion violations.’”68 The
court found a more serious sanction was                                       In 2006, Hoglan filed a notice of
necessary due to “Hauser’s                                              appeal on behalf of a client but failed to
61 Id. at 152.                                                          69 Id. at 154 (citing Iowa Supreme Court
62 Id.                                                                  Attorney Disciplinary Bd. v. Wagner, 768
63 Id. at 152–53 (citations omitted).                                   N.W.2d 279, 287 (Iowa 2009)).
64 Id. at 153 (citing IOWA RULES OF PROF’L                              70 Id.

CONDUCT R. 32:1:1).                                                     71 Id.
65 Id. (quoting Iowa Supreme Court Attorney                             72 Id. (citing Iowa Supreme Court Bd. of Prof’l

Disciplinary Bd. v. Hoglan, 781 N.W.2d 279, 285                         Ethics & Conduct v. Kennedy, 684 N.W.2d 256,
(Iowa 2010)).                                                           261 (Iowa 2004)).
66 Id.                                                                  73 Iowa Supreme Court Attorney Disciplinary Bd.
67 Id. (citing Hoglan, 781 N.W.2d at 286).                              v. Hoglan, 781 N.W.2d 279, 281 (Iowa 2010).
68 Id. (citations omitted).                                             74 Id. at 287–88.

                                                               ~ Professional Conduct ~

file and serve a certificate, resulting in a                                    back problems.84 Testimony from all
notice of default.75 He then filed                                              four clients was also entered into the
multiple extensions that were met with                                          record.85
more notices of default, eventually
resulting in dismissal of his client’s                                                  The supreme court held the
case.76 In the same year, he represented                                        Board proved by a convincing
another client in a personal injury case                                        preponderance of the evidence Hoglan’s
in which he intended to appeal the trial                                        failure to prosecute the four appeals
court’s decision.77 He allowed the                                              evinced neglect, a violation of ethical
appeal to languish, and upon the court’s                                        rules 32:1.3,86 32:1.16(a)(2),87 32:3.2,88
refusal to extend the deadline, the case                                        32:8.4(a),89 and 32:8.4(d).90 Neglect is
was dismissed for want of prosecution.78                                        defined by the court as involving “‘a
In this same time frame, Hoglan filed a                                         consistent failure to perform those
notice of appeal for another client’s                                           obligations that a lawyer has assumed,
employment-discrimination claim that                                            or a conscious disregard for the
had been dismissed at the trial court                                           responsibilities a lawyer owes to a
level by summary judgment.79 Again,
his appeal was dismissed for want of                                            84 Id. Hoglan suffers from a herniated disk and
prosecution.80 In 2003, Hoglan                                                  degenerative bone condition that causes spinal
requested to review the latest hearing                                          deformity and chronic pain, and has undergone
decision for another client’s social                                            a number of back surgeries unrelated to his
security disability claims.81 While he                                          degenerative bone condition. Id.
                                                                                85 Id. at 283–84.
claimed the request was delivered to the                                        86 Iowa Rule of Professional Conduct 32:1.3
social security office, no evidence was                                         states: “A lawyer shall act with reasonable
available to corroborate his contention;                                        diligence and promptness in representing a
moreover, Hoglan did not review the file                                        client.” IOWA RULES OF PROF’L CONDUCT R.
again until January 2008.82                                                     32:1.3.
                                                                                87 Iowa Rule of Professional Conduct

                                                                                32:1.16(a)(2) states: “[A] lawyer shall not
       Hoglan conceded he failed to                                             represent a client or, where representation has
perfect the three appellate cases                                               commenced, shall withdraw from the
dismissed for want of prosecution, but                                          representation of a client if . . . the lawyer’s
he disputed he neglected to timely                                              physical or mental condition materially impairs
                                                                                the lawyer’s ability to represent the client.”
appeal the social security claim,                                               IOWA RULES OF PROF’L CONDUCT R. 32:1.16(a)(2).
communicate adequately with his client,                                         88 Iowa Rule of Professional Conduct 32:3.2

or pursue the social security claim.83 He                                       states: “A lawyer shall make reasonable efforts
attributed his dilatory handling of his                                         to expedite litigation consistent with the
cases to experiencing a series of chronic                                       interests of the client.” IOWA RULES OF PROF’L
                                                                                CONDUCT R. 32:3.2.
                                                                                89 Iowa Rule of Professional Conduct 32:8.4(a)
75  Id. at 282.                                                                 states: “It is professional misconduct for a
76 Id. At this time, Hoglan was experiencing                                    lawyer to . . . violate or attempt to violate the
serious back pain. Id.                                                          Iowa Rules of Professional Conduct, knowingly
77 Id.                                                                          assist or induce another to do so, or do so
78 Id.                                                                          through the acts of another.” IOWA RULES OF
79 Id.                                                                          PROF’L CONDUCT R. 32:8.4(a).
80 Id.                                                                          90 Iowa Rule of Professional Conduct 32:8.4(d)
81 Id. at 282–83.                                                               states: “It is professional misconduct for a
82 Id. at 283. Hoglan was prompted to review                                    lawyer to . . . engage in conduct that is
the file by his client’s filing of this complaint. Id.                          prejudicial to the administration of justice.”
83 Id.                                                                          IOWA RULES OF PROF’L CONDUCT R. 32:8.4(d).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

client.’”91 However, the court found the
Board fell short in establishing Hoglan’s                                       The supreme court disagreed
failure to provide competent                                            with the commission’s sanction.97
representation in any of the four cases                                 Hoglan was neglectful multiple times,
as described under Rule 32:1.1.92 While                                 harming all four clients in the dismissal
Hoglan was dilatory in handling the                                     of each client’s appeals, and two of the
matters, no evidence showed he lacked                                   acts of neglect had already been subject
the necessary legal knowledge and skills                                to a prior public reprimand in January
to complete all the tasks or had not                                    2007.98 Hoglan, therefore, was on
made a competent analysis of each of                                    notice he was obligated to remove
the client’s problems.93 The Board also                                 himself from representation, yet he
failed to show Hoglan violated Rules                                    failed to do so.99 The court viewed
32:1.4(a)(3), which requires an attorney                                Hoglan’s health problems as a
keep clients reasonably informed                                        mitigating circumstance in discipline
regarding the status of his or her matter;                              and concluded his acts warranted
32:8.4(c), which finds professional                                     suspension of his practitioner’s license
misconduct when a lawyer acts                                           for thirty days.100 Due to the severity of
dishonestly, fraudulently, deceitful, or                                his back problems, reinstatement of
misrepresents information; or                                           Hoglan’s license is contingent upon his
32:1.4(a)(4), which requires a lawyer                                   submission of an evaluation from a
“promptly comply with reasonable                                        licensed healthcare professional
requests for information.”94                                            verifying he is physically competent to
                                                                        practice law.101
       The typical sanction for violations
involving neglect ranges from public                                    Iowa Supreme Court Attorney
reprimand to six-month suspension.95                                    Disciplinary Board v. Johnson, 774
Due to his prior excellent professional                                 N.W.2d 496 (Iowa 2009)
record, as well as his acknowledgment of
his current wrongdoing in each case, the                                        The issue in Johnson was
grievance commission recommended                                        whether an attorney who was convicted
Hoglan be publicly reprimanded.96                                       of his third offense of operating a motor
                                                                        vehicle while intoxicated (OWI) should
91 Iowa Supreme Court Attorney Disciplinary Bd.
                                                                        have his practitioner’s license
v. Hoglan, 781 N.W.2d 279, 284 (Iowa 2010)                              suspended, and if so, whether he should
(quoting Iowa Supreme Court Bd. of Prof’l                               be required to provide medical
Ethics & Conduct v. Moorman, 683 N.W.2d 549,                            documentation regarding his sobriety
551 (Iowa 2004)).                                                       and fitness as an attorney upon
92 Id. at 284–85. Iowa Rule of Professional

Conduct 32:1.1 states: “A lawyer shall provide
                                                                        reapplication to practice law.102 The
competent representation to a client.                                   Iowa Supreme Court found the
Competent representation requires the legal
knowledge, skill, thoroughness, and preparation                                                                                     
reasonably necessary for the representation.”                           97 Id.
IOWA RULES OF PROF’L CONDUCT R. 32:1.1.                                 98 Id. at 286–87.
93 Hoglan, 781 N.W.2d at 285.                                           99 Id. at 287.
94 Id.                                                                  100 Id. (citations omitted).
95 Id. at 286 (citing Iowa Supreme Court                                101 Id.

Attorney Disciplinary Bd. v. Casey, 761 N.W.2d                          102 Iowa Supreme Court Attorney Disciplinary

53, 61 (Iowa 2009)).                                                    Bd. v. Johnson, 774 N.W.2d 496, 497 (Iowa
96 Id.                                                                  2009).

                                                               ~ Professional Conduct ~

attorney’s license to practice law should                                       documentation verifying his sobriety
be suspended “indefinitely with no                                              and competence to practice law when he
possibility of reinstatement for six                                            applies for reinstatement.110
months.”103 In addition, the attorney is
required to provide medical                                                             The court cited precedent that
documentation from a healthcare                                                 held a third-offense OWI violated Rules
professional illustrating both his                                              32:8:4(a), (b), and (d).111 Regarding the
maintenance of sobriety and fitness to                                          fact Johnson was not practicing at the
practice law.104                                                                time he was convicted, the court noted it
                                                                                makes no difference whether an
        Johnson has been a licensed                                             attorney was acting as such at the time
attorney in Iowa since 1981.105 In 2007,                                        of his or her misconduct—“‘[l]awyers do
he was arrested for OWI, third                                                  not shed their professional
offense.106 After pleading guilty at trial,                                     responsibility in their personal lives.’”112
a complaint was filed against him by the                                        The court further noted there is no
Iowa Supreme Court Disciplinary                                                 standard sanction for any particular type
Board.107 The complaint alleged                                                 of misconduct; sanctions are determined
Johnson violated multiple provisions of                                         based on the circumstances of each
the Iowa Rules of Professional                                                  case.113 Distinguishing factors regarding
Conduct.108 Despite evidence of his                                             the punishment imposed center on
efforts to maintain sobriety—along with                                         whether there have been multiple
the fact Johnson had not practiced law                                          instances of neglect or past disciplinary
since 2005—the grievance commission                                             problems, along with other companion
found Johnson violated Rules 32:8:4(a),                                         violations.114
(b), and (d) of the Iowa Rules of
Professional Conduct.109 The                                                           Having the ability to either
commission recommended Johnson’s                                                revoke or suspend Johnson’s license to
license be suspended for at least nine                                          practice, the court decided suspension
months and Johnson provide                                                      was warranted.115 The court compared
                                                                                Johnson’s case to Iowa Supreme Court
103 Id.                                                                         Board of Professional Ethics & Conduct
104 Id.                                                                         v. Marcucci, finding although no clients
105 Id. at 498.
106 Id.                                                                         were injured by Johnson’s misconduct, a
107 Id.                                                                         public reprimand was not sufficient
108 Id.                                                                         because of the seriousness of a third-
109 Id. at 498–99. Rule 32:8:4(a) reads: “‘It is

professional misconduct for a lawyer to . . .                                                                                               
violate . . . [a] Rule[] of Professional Conduct . . .                          110 Id.
.’” Id. at 499 (quoting IOWA RULES OF PROF’L                                    111 Id. (citations omitted).
CONDUCT R. 32:8:4(a)). Rule 32:8:4(b) reads:                                    112 Id. (quoting Comm’n on Prof’l Ethics &

“‘It is professional misconduct for a lawyer to . . .                           Conduct v. Millen, 357 N.W.2d 313, 315 (Iowa
commit a criminal act that reflects adversely on                                1984)).
the lawyer’s honesty, trustworthiness, or fitness                               113 Id. (citations omitted). These circumstances

as a lawyer in other respects.’” Id. (quoting                                   include: “‘the nature of the alleged violations,
IOWA RULES OF PROF’L CONDUCT R. 32:8:4(b)).                                     the need for deterrence, protection of the public,
Rule 32:8:4(d) reads: “‘It is professional                                      maintenance of the reputation of the [bar] as a
misconduct for a lawyer to . . . engage in conduct                              whole, and the respondent’s fitness to continue
that is prejudicial to the administration of                                    in the practice of law.’” Id. (citations omitted).
justice.’” Id. (quoting IOWA RULES OF PROF’L                                    114 Id. at 500 (citations omitted).

CONDUCT R. 32:8:4(d)).                                                          115 Id.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

offense OWI.116 The court ultimately                                    county attorney, and in response to
handed down a six-month suspension                                      inquiries from the media, he spoke
and required Johnson to submit the                                      openly about the allegations.123 In 2007,
medical documentation recommended                                       the Iowa Supreme Court Attorney
by the grievance board when he applies                                  Disciplinary Board filed three
for reinstatement.117                                                   disciplinary charges against him.124 The
                                                                        first charge alleged Marzen was involved
Iowa Supreme Court Attorney                                             in a sexual relationship with a woman
Disciplinary Board v. Marzen, 779                                       while she was his client.125 The second
N.W.2d 757 (Iowa 2010)                                                  alleged he misrepresented information
                                                                        to a judge during the proceeding
       In Marzen, an attorney engaged                                   concerning the woman.126 The third
in a sexual relationship with a client and                              alleged he disclosed confidential
then publicly disclosed confidential                                    information about his client in
information pertaining to that client in                                addressing the media inquiries during
response to media inquiries.118 The                                     his campaign.127
Iowa Supreme Court held the attorney
should be suspended from practicing                                             The grievance commission
law for six months for exploiting the                                   eventually dropped the first two charges
attorney–client relationship to the                                     based upon insufficient evidence but
detriment of both his client and                                        found against Marzen regarding the
profession, egocentrically disclosing                                   third—his revealing confidential
confidential information to the public,                                 information.128 The commission
and becoming sexually involved with a                                   recommended a three-month
client when she was most vulnerable.119                                 suspension.129 The Board appealed the
                                                                        first charge—having a sexual
        Marzen has practiced law in Iowa                                relationship with a client—to the Iowa
since 2004.120 In 2006, a former client                                 Supreme Court, and Marzen cross-
alleged she had been involved in a                                      appealed the third charge.130
sexual relationship with Marzen after he
had represented her in a hearing for an                                         The supreme court addressed the
involuntary mental health                                               sexual relationship allegation first,
commitment.121 A district court judge                                   noting an attorney cannot engage in a
filed a complaint regarding the same                                    sexual relationship with a client unless
issue after hearing testimony from the                                  the client is his or her spouse or the
woman.122 When the complaints were                                      relationship predated the attorney–
filed, Marzen was campaigning for                                       client relationship.131 The court next
                                                                        examined the background facts
116 Id. (citing Iowa Supreme Court Bd. of Prof’l                                                                                    
Ethics & Conduct v. Marcucci, 543 N.W.2d 879,                           123 Id.
880–83 (Iowa 1996)).                                                    124 Id.
117 Id. at 501.                                                         125 Id.
118 Iowa Supreme Court Attorney Disciplinary                            126 Id.

Bd. v. Marzen, 779 N.W.2d 757, 759 (Iowa                                127 Id.

2010).                                                                  128 Id.
119 Id. at 769.                                                         129 Id.
120 Id. at 759.                                                         130 Id.
121 Id.                                                                 131 Id. at 760 (citing IOWA RULES OF PROF’L
122 Id.                                                                 CONDUCT R. 32:1.8(j)).

                                                               ~ Professional Conduct ~

corresponding to the sexual                                                     that would support a more severe
relationship.132 The client testified to a                                      sanction.140
couple of identifying marks on Marzen’s
body, and several witnesses supported                                                   The court next addressed the
her testimony regarding the alleged                                             charge of public disclosure of
sexual encounters.133 Marzen denied the                                         confidential information.141 The Board
allegations, arguing the woman could                                            alleged Marzen violated Iowa Rule of
have known about his identifying marks                                          Professional Conduct 32:1.6(a)—“‘A
via alternative ways—seeing him at the                                          lawyer shall not reveal information
city swimming pool, for example.134                                             relating to the representation of a client
Marzen also offered witness testimony                                           unless the client gives informed consent,
that supported his argument.135 DNA                                             the disclosure is impliedly authorized in
evidence was also admitted: a comforter                                         order to carry out the representation, or
from the client’s bedroom and a coat                                            the disclosure is permitted by paragraph
allegedly worn by her during one sexual                                         (b) or required by paragraph (c).’”142
encounter came back negative.136                                                The court noted there was no question
                                                                                as to the facts, here—Marzen had
       The court noted it could find an                                         commented on the allegations to local
ethical violation only if there was a                                           media.143 The information he disclosed
convincing preponderance of the                                                 had been obtained by way of a
evidence.137 While it acknowledged the                                          confidential conversation, and the client
requisite evidentiary standards the                                             had not consented to disclosure.144 The
grievance commission’s findings must                                            issue facing the court was whether
meet, the court found the client’s                                              Marzen had violated the rules of
testimony more believable and Marzen’s                                          confidentiality when he disclosed
denials rather suspect.138 Thus, a sexual                                       information he had learned through
relationship was found to have existed                                          client conference, yet was “available in
between Marzen and his client during                                            the public forum.”145 Having no case
the time of his representation of her.139                                       law directly on point, the court
The fact the client had just been released                                      examined other courts’ holdings on the
from a mental health commitment, had                                            issue and determined disclosure of
no money, and had no place to live when                                         confidential information that is
she began the sexual relationship with                                          otherwise publicly available is
Marzen were seen as aggravating factors                                         nevertheless a violation of the rule of

                                                                                      Marzen argued his disclosure was
                                                                                excepted from the rule against
132 Id. at 760–62.                                                              140 Id. at 765 (citing Iowa Supreme Court Bd. of
133 Id. at 760–61.                                                              Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d
134 Id. at 761.                                                                 121, 125 (Iowa 1999)).
135 Id. at 761–62.                                                              141 Id. at 765–67.
136 Id. at 762.                                                                 142 Id. at 765 (quoting IOWA RULES OF PROF’L
137 Id. at 763 (citing Iowa Supreme Court Bd. of                                CONDUCT R. 32:1.6(a)).
Prof’l Ethics & Conduct v. Evans, 537 N.W.2d                                    143 Id.

783, 784 (Iowa 1995)).                                                          144 Id.
138 Id. at 763–64.                                                              145 Id.
139 Id. at 764.                                                                 146 Id. at 765–66.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

disclosure by Iowa Rule of Professional                                 interpreter for two foreign-born clients,
Conduct 32:1.6(b)(5), which allows a                                    providing false testimony at a
lawyer to reveal confidential                                           postconviction relief hearing, and failing
information if it is to establish a defense                             to provide a complete accounting of his
on the lawyer’s behalf in a lawyer–client                               clients’ funds.154 The court found Sobel
controversy.147 The court rejected this                                 lacked the necessary intent for most of
argument, finding it was not clear                                      the allegations but did find he failed to
Marzen made his public statements in                                    provide a complete accounting of the
an attempt to mount a defense; rather, it                               client funds.155 A public reprimand was
appeared the statements were made in                                    ordered.156
an attempt to defame the client.148
Thus, Marzen’s disclosure was found to                                          Sobel has practiced law in Iowa
violate Rule 32:1.6(a).149                                              since 1983, and prior to this proceeding,
                                                                        he had no disciplinary record.157 In the
        In fashioning a remedy, the court                               matter at issue here, Sobel represented
acknowledged the inherent danger                                        the Luus, a husband and wife who
involved in sexual relationships between                                immigrated to the United States from
a potentially vulnerable client and an                                  Thailand in the mid-1970s.158 The Luus
attorney.150 The court noted discipline                                 were charged with several counts of
for a violation of client confidences                                   illegal commercialization of wildlife.159
generally warrants up to a three-month                                  The couple did not sign a waiver
suspension when aggravating                                             acknowledging the potential conflict
circumstances are also involved.151 “[A]                                joint representation posed even though
violation is even more egregious when                                   Sobel testified he explained the potential
the particular client is mentally or                                    problems involved.160 Mr. Luu gave
emotionally unstable.”152 The court                                     Sobel a $2000 retainer fee that Sobel
imposed a six-month suspension on                                       subsequently placed in his trust
Marzen.153                                                              account.161 Sobel never provided the
                                                                        Luus with any written accounting of the
Iowa Supreme Court Attorney                                             services he performed.162
Disciplinary Board v. Sobel, 779
N.W.2d 782 (Iowa 2010)                                                        A plea agreement was eventually
                                                                        reached between the Luus and the
       In Sobel, an attorney was alleged                                prosecutor, though the Luus did express
by the Iowa Supreme Court Attorney                                      some concern about the plea to Sobel.163
Disciplinary Board to have engaged in                                   The Luus feared for the publicity the
dishonest conduct for, among other                                      case might bring and worried they
allegations, failing to provide an                                                                                                  
                                                                        154 Iowa Supreme Court Attorney Disciplinary
147 Id. at 766 (citing R. 32:1.6(b)(5)).                                Bd. v. Sobel, 779 N.W.2d 782, 786 (Iowa 2010).
148 Id. (citing In re Bryan, 61 P.3d 641, 658 (Kan.                     155 Id. at 788–89.

2003)).                                                                 156 Id. at 790.
149 Id. at 767.                                                         157 Id. at 783.
150 Id. (citations omitted).                                            158 See id.
151 Id. at 768 (citations omitted).                                     159 Id.
152 Id. (citing Iowa Supreme Court Attorney                             160 Id. at 783–84.

Disciplinary Bd. v. McGrath, 713 N.W.2d 682,                            161 Id. at 784.

703 (Iowa 2006)).                                                       162 Id.
153 Id. at 769.                                                         163 Id.

                                                               ~ Professional Conduct ~

would lose face when appearing in                                                             fraud,       deceit,        or
court.164 After sentencing, a news                                                            misrepresentation           by
release about the case was published by                                                       giving false testimony at
the DNR, and a related article appeared                                                       the postconviction relief
in the Des Moines Register.165 Sobel                                                          hearing concerning the
also later gave the county attorney                                                           presence of the Luus and
information his clients provided him                                                          the actions and conduct of
implicating other individuals involved in                                                     [the presiding judge] at the
illegal commercialization, believing it                                                       plea     and     sentencing
was part of the cooperation agreement                                                         hearing[,] . . . failed to
the parties had signed.166 After these                                                        provide full disclosure to
events, Sobel’s professional relationship                                                     the Luus concerning the
with the Luus ended.167                                                                       potential effect of joint
                                                                                              representation[,] . . . failed
       The Luus eventually filed for                                                          to render a complete
postconviction relief and alleged Sobel                                                       accounting      of      client
provided ineffective assistance of                                                            funds[,] . . . violated the
counsel.168 At the postconviction relief                                                      attorney-client privilege by
hearing, Sobel’s testimony regarding the                                                      turning       over         the
representation differed from the Luus’                                                        information provided to
and the judge who had presided over the                                                       him by the Luus[,] . . .
criminal proceeding.169 The                                                                   [and] misrepresent[ed] to
postconviction relief court ultimately                                                        the Luus that their case
found Sobel had provided ineffective                                                          would not be made
assistance of counsel.170                                                                     public.172

       The Iowa Supreme Court                                                   The grievance commission
Attorney Disciplinary Board filed                                               recommended Sobel receive a six-month
multiple complaints against Sobel,                                              suspension from practicing law.173
alleging he violated the code of
professional responsibility both in his                                                The Iowa Supreme Court first
representation of the Luus and in his                                           addressed the claim Sobel provided false
testimony at the postconviction relief                                          testimony at (1) the plea and sentence
hearing.171 The complaint alleged Sobel                                         hearing and (2) the postconviction relief
                                                                                hearing.174 The court noted, despite the
              engaged                     in       conduct                      commission’s findings, it was possible
              involving                         dishonesty,                     Sobel simply “expressed a conflicting
                                                                                account of the proceeding without
164 Id.                                                                         engaging in conduct involving
165 Id. at 785.                                                                 dishonesty, fraud, deceit, or
166 Id.
                                                                                misrepresentation.”175 The court took
167 Id.
168 Id. The claim alleged Sobel failed to provide
                                                                                into account scientific research showing
the Luus an interpreter during the criminal
                                                                                a person’s memory can be subject to
proceeding, which lead them to not fully                                                                                                    
understand the proceedings against them. Id.                                    172 Id.
169 Id. at 785–86.                                                              173 Id.
170 Id. at 786.                                                                 174 Id. at 786–88.
171 Id.                                                                         175 Id. at 787.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

distortion and error unrelated to                                       use of an interpreter was not
purpose or intent to be untruthful.176 In                               unethical.184 The court went on to note
order to be an ethical violation, however,                              the Luus may have had an ulterior
misrepresentation requires the intent to                                motive after their sentence had been
deceive.177 Noting nearly six years had                                 imposed to deny conversations took
passed between the postconviction relief                                place and claim confusion about the
action and the disciplinary hearing, and                                proceedings.185
the fact busy attorneys make a
significant number of court                                                     Nevertheless, the court
appearances, the court found the Board                                  recognized Sobel was found by the
failed to show by a preponderance of the                                commission to have failed to provide the
evidence Sobel had the requisite intent                                 required written notice regarding fees he
to deceive.178 While Sobel’s testimony                                  withdrew from the Luus’ retainer that
may have been proven to be inaccurate,                                  had been deposited in his trust
there was no evidence in the record his                                 account.186 For this, the court found
testimony was intended to be                                            Sobel had violated the state’s rules on
deceptive.179                                                           professional conduct.187 Sobel was
                                                                        publicly reprimanded for failing to
       The court next addressed the                                     provide a proper written account of his
remaining violations in the aggregate.180                               legal services.188
While Sobel failed to obtain an                                          
interpreter for his clients, he believed,
through prior representation of the
Luus, he could adequately communicate
with them without an interpreter.181 Yet,
an error in judgment is not a valid basis
for discipline.182 Furthermore, other
parties involved in the matter—the DNR
conservation officers who responded to
the initial complaint, for example—
noted they believed the Luus understood
the proceedings.183 Thus, while Sobel’s
judgment regarding his clients’
understandings of “the problem of joint
representation, the terms of the plea and
cooperation agreement, and the risks of
public disclosure of the case” may have
been wrong, his decision to forego the                                  184 Id.
                                                                        185 Id. The Luus may have wanted to “‘save face’”
176 Id. (citations omitted).                                            in their community or support the belief their
177 Id. (citing Iowa Supreme Court Bd. of Prof’l                        sentence was too harsh. Id.
Ethics & Conduct v. Moorman, 683 N.W.2d 549,                            186 Id. While Sobel argued he orally explained

553 (Iowa 2004)).                                                       the fees withdrawn from the account, the court
178 Id. at 787–88.                                                      noted a written notice is required. Id. (citing
179 Id. at 788.                                                         Iowa Supreme Court Bd. of Prof’l Ethics &
180 Id. at 788–89.                                                      Conduct v. Apland, 577 N.W.2d 50, 59 (Iowa
181 Id. at 788.                                                         1998)).
182 Id. (citations omitted).                                            187 Id.
183 Id. at 789.                                                         188 Id. at 790.

                                                               ~ Legislative Action ~

XIV. LEGISLATIVE ACTION                                                       reasonably believed to be under the age
                                                                              of sixteen.”9
Kidnapping—Enticing Away a
Minor                                                                                 Enticement with the intent to
                                                                              commit an illegal act on a person
        This section was added to the                                         reasonably believed to be under the age
Kidnapping chapter in 1985.1 The                                              of sixteen is still a class “D” felony.10
legislation changed the subject matter of                                     However, attempted enticement of a
this section from the term “Enticing                                          person reasonably believed to be under
Away a Child” to “Enticing Away a                                             the age of sixteen is an aggravated
‘Minor’” under various ages. The                                              misdemeanor and is not subject to the
legislature has created three separate                                        sex offender registration requirements
offenses.                                                                     unless a fact finder makes a
                                                                              determination the illegal act was
        The first age of demarcation is a                                     sexually motivated.11
minor under the age of thirteen or a
person reasonably believed to be under                                               Under any theory of enticement,
the age of thirteen.2 The penalty is a                                        there is an additional requirement the
class “C” felony.3 The second is a minor                                      defendant commit an overt act.12
under the age of sixteen where the intent                                     Jurisdiction is found when the
is to commit an illegal act.4 The penalty                                     enticement or attempt to entice is
is a class “D” felony.5 The third is an                                       directed towards a minor in Iowa or the
attempt to entice a minor under the age                                       communication originates from Iowa.13
of sixteen with the intent to commit an
illegal act.6 The penalty is an aggravated                                    The Sex Offender Registry
                                                                                     Any person convicted of an
        Although the demarcation ages                                         indictable offense under the Assault
remain at thirteen and sixteen, in 2010                                       chapter is subject to the sex offender
the legislature rewrote parts of the                                          registry if the offense was committed
statute.8 The legislation created                                             against a minor and the fact finder
separate subsections depending on the                                         determined the offense was sexually
intent of the defendant. It is a class “D”                                    motivated.14
felony to entice a person under the age
of sixteen “with the intent to commit an                                             For sex offender registry
illegal sex act” or sexually exploit him or                                   purposes, the legislature in 2010
her, or attempt “to entice a person                                           mandated the fact finder in the
                                                                              following circumstances make a
1 IOWA CODE § 710.10 (Iowa 1985).
                                                                              determination of whether the crime was
2 Id. § 710.10(1) (Iowa 2010).
                                                                              committed against a minor and sexually
3 Id.                                                                                                                                     
4 Id. § 710.10(2).                                                            9 Id. § 710.10(2) (emphasis added).
5 Id.                                                                         10 Id. § 710.10(3).
6 Id. § 710.10(3).                                                            11 Id. § 710.10(4).
7 Id.                                                                         12 Id. § 710.10(5).
8 Id. § 710.10, amended by H.F. 2438,                                         13 Id. § 710.10(6).

83rd G.A.                                                                     14 Id. § 708.14.

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

motivated: Burglary in the first                                        added to the list of Tier III offenses.28
degree,15 attempted burglary in the first                               Detention in a brothel was deleted from
degree,16 burglary in the second                                        the list of Tier II offenses.
degree,17 attempted burglary in the
second degree,18 burglary in the third                                  Sexually Motivated Offenses
degree,19 attempted burglary in the third
degree,20 and cases subject to the                                              For sexually motivated offenses, a
Protection of the Family and Dependant                                  distinction was made as to whom the
Persons chapter.21                                                      fact finder would be regarding the
                                                                        determination of whether an offense was
Sexually Violent Predators                                              sexually motivated. Sexually motivated
                                                                        offenses are defined in § 229A.2 as
       Regarding sexually violent                                       offenses committed, at least in part, for
predators, Tier 1 offenses were                                         the sexual gratification of the
broadened to include: Harassment if                                     defendant.29 A judge or jury will make
the offense was sexually motivated,22                                   the finding for offenses occurring on or
stalking if the offense was sexually                                    after July 1, 2009.30 For offenses that
motivated,23 pimping if the offense was                                 occurred prior to July 1, 2009, though,
committed against or involved a                                         the finding is made by the Department
minor,24 pandering involving a minor,25                                 of Public Safety.31 A determination
and any other indictable offense that                                   made by the department that the offense
violates either the Assault or Protection                               was sexually motivated must be in
of the Family and Dependent Persons                                     writing and include a summary of the
chapter if the offense was committed                                    information and evidence considered in
against or involved a minor.26                                          making the determination.32 The
Pandering was added to the list of Tier II                              determination is subject to judicial
offenses,27 and penetration of the                                      review pursuant to Iowa’s
genitalia or anus with an object was                                    Administrative Procedure Act.33

                                                                        Residency Restrictions—The
                                                                        “2000 Foot Rule”
15 Id. § 713.3(3).
16 Id. § 713.4.
17 Id. § 713.5.
                                                                               The list of aggravated offenses
18 Id. § 713.6.
                                                                        against a minor that prohibit the
19 Id. § 713.6A(3).
                                                                        perpetrator from living within 2000 feet
20 Id. § 713.6B(3).
                                                                        of a school or childcare facility was
21 Id. § 726.10.
                                                                        expanded to include comparable
22 Id. § 692A.102(1)(a)(6)(a).
                                                                        offenses that occurred in other
23 Id. § 692A.102(1)(a)(6)(b).
                                                                        jurisdictions, including federal, military,
24 Id. § 692A.102(1)(a)(new                                                                                                         
subparagraph).                                                          28 Id. § 692A.102(1)(c)(new
25 Id. § 692A.102(1)(a)(new                                             subparagraph).
subparagraph).                                                          29 Id. § 692A.101(28A).
26 Id. § 692A.102(1)(a)(6)(c); Id. §                                    30 Id. § 692A.126(1).

692A.102(1)(a)(new subparagraph).                                       31 Id. § 692A.126(2)(a)(1).
27 Id. § 692A.102(1)(b)(new                                             32 Id. § 692A.126(2)(b).

subparagraph).                                                          33 Id. § 692A.126(2)(c).

                                                               ~ Legislative Action ~

or foreign courts.34                                                          Penalties—Criminal Mischief in
                                                                              the Fourth Degree
Aggravated Theft
                                                                                     Criminal mischief in the fourth
       In 2010, the legislature created                                       degree is established by proving the
the crime of aggravated theft.35 The                                          property damage was between $200 and
elements are: (1) The person committed                                        $500.46 In 2010, the legislature created
a simple assault;36 (2) the person                                            a new variant of criminal mischief in the
removed or attempted to remove                                                fourth degree. The elements are: (1)
property valued at $200 or less, or                                           The defendant injures, destroys,
concealed such property on or outside                                         disturbs, or removes a monument,47 (2)
the premises of a store or mercantile                                         the monument was placed by an
establishment;37 and (3) the property                                         authorized governmental body,48 (3) the
was not purchased from a store or                                             defendant did so with specific intent,49
mercantile establishment.38 The crime                                         and (4) the defendant was not a
of aggravated theft is not a lesser-                                          governmental employee at the time of
included offense of robbery.39                                                the injury, destruction, disturbance, or
       Aggravated theft is an aggravated
misdemeanor for the first offense,40                                          Public Intoxication
carrying a maximum, indeterminate
sentence of two years.41 However, if the                                             The crime of public intoxication
person was previously convicted of                                            was changed to encompass not only
aggravated theft, robbery, or extortion,                                      individuals who are intoxicated, but also
the sentence is enhanced to a class “D”                                       those who simulate being intoxicated.51
felony42 and carries a maximum,
indeterminate sentence of five years.43                                       Operating While Intoxicated
A deferred judgment qualifies as a prior
conviction,44 as do convictions of                                                   The reader is cautioned that S.F.
corresponding statutes in other                                               431, 83rd G.A. (Iowa 2010),
jurisdictions.45                                                              reorganized various subsections in the
                                                                              Operating Motor Vehicles While
                                                                              Intoxicated chapter that will go into
                                                                              effect December 1, 2010. Current
                                                                              subsections will remain in effect until
34 Id. § 692A.101(2)(b).
                                                                              that date. After that date, readers
35 Id. § 714.3A(1), enacted by S.F. 2250,
                                                                              should check subsection numbers to
83rd G.A.
36 Id. (referencing § 708.2(6)).
                                                                              ensure they remain accurate.
37 Id.
38 Id.
39 Id. § 714.3A(4).                                                                                                                       
40 Id. § 714.3A(2)(a).                                                        46 Id. § 716.6.
41 Id. § 903.1(2).                                                            47 Id. § 716.6(a)(2)–(3).
42 Id. § 714.3A(2)(b).                                                        48 Id.
43 Id. § 902.9(5).                                                            49 Id.
44 Id. § 714.3A(3)(a).                                                        50 Id.
45 Id. § 714.3A(3)(b).                                                        51 Id. § 123.46(2A).

                                               Criminal Law Newsletter (2009 – 2010 ed.)                                                

       In 2010, the legislature                                         are two theories by which someone can
authorized the Department of                                            be convicted. The first has the following
Transportation to take over the                                         elements:
suspension and issuance of licenses
taken by virtue of test refusals or                                                   (1) The person possessed,
failures.52 The legislation includes new                                                  received, transported, or
provisions regarding ignition interlock                                                   shipped firearms, offensive
devices that are installed to receive a                                                   weapons, or ammunition;57
temporary license.53                                                                  (2) The person is subject to a
                                                                                          protective order;58 and
False Reports                                                                         (3) The order meets the following
       The crime of providing false                                                       a. It was issued after a
reports, specifically the subsection                                                         hearing in which such
regarding providing false information,                                                       person received actual
was expanded to include not only false                                                       notice and had an
information provided to a law                                                                opportunity to
enforcement officer, but also false                                                          participate;59
information provided to a person known                                                    b. The order restrains the
to be a peace officer, emergency medical                                                     person from harassing,
care provider, or fire fighter while that                                                    stalking, or threatening an
person was acting within the scope of                                                        intimate partner of the
their employment.54                                                                          person or child of the
                                                                                             intimate partner, or
Possession, Receipt,                                                                         engaging in other conduct
Transportation, or Dominion and                                                              that would place an
Control of Firearms, Offensive                                                               intimate partner in
Weapons, and Ammunition by                                                                   reasonable fear of bodily
Persons Subject to a Protective                                                              injury to the person or
Order                                                                                        child;60 and
                                                                                             i. It includes a finding the
       In 2010, the legislature enacted a                                                        person represents a
statute prohibiting individuals subject to                                                       credible threat to the
protective orders from having firearms,                                                          physical safety of the
offensive weapons, or ammunition.55                                                              intimate partner or
The statute is patterned after and                                                               child;61 or
incorporates a federal statute.56 There                                                      ii. By its terms, it
                                                                                                 explicitly prohibits the
                                                                                                 use, attempted use, or
52 Id. §§ 321J.2; 321J.4; 321J.9; 321J.12;
                                                                                                 threatened use of
321J.17; 321J.20, amended by H.F.
                                                                                                 physical force against
2452, 83rd G.A. (Iowa 2010).
53 Id. § 321J.20.                                                                                                                   
54 Id. § 719.1A.                                                        57 Id.
55 Id. § 724.26(2)(a), enacted by S.F.                                  58 Id.
2357, 83rd G.A.                                                         59 18 U.S.C. § 922(g)(8)(A).
56 Id. (citing 18 U.S.C. § 922(g)(8)                                    60 18 U.S.C. § 922(g)(8)(B).

(2006)).                                                                61 18 U.S.C. § 922(g)(8)(C)(i).

                                                               ~ Legislative Action ~

                                    the intimate partner or
                                    child that would
                                    reasonably be expected
                                    to cause bodily injury.62

       The second theory can be
established by proving: (1) The person
possessed, received, transported, or
shipped firearms, offensive weapons, or
ammunition;63 and (2) the individual
was convicted of a misdemeanor crime
of domestic violence.64

       There is an exception built into
the statute for firearms, offensive
weapons, or ammunition issued by a
governmental department agency or
subdivision for use in the performance
of the person’s official duties.65 The
offense is a class “D” felony.66 The
maximum sentence is an indeterminate
term of incarceration not to exceed five

62   18 U.S.C. § 922(g)(8)(C)(ii).
63 IOWA CODE § 724.26(2)(a).
64 Id. § 724.26(2)(a), (c) (referencing                           §
708.1(1), (3)).
65 Id. § 724.26(2)(b).
66 Id. § 724.26(2)(a).
67 Id. § 902.9(5).

                     Criminal Law Newsletter (2009 – 2010 ed.)                           

                             XIV. TABLE OF CASES
The parentheticals following each case citation contain areas of law discussed in the
opinion. The area of law listed first corresponds to the section of the Newsletter in
which the case can be found.

Beard v. Kindler, 130 S. Ct. 612 (2009)                                          38
        (Habeas Corpus)
Berghuis v. Thompkins, 130 S. Ct. 2250 (2010)                                    8
        (Fifth Amendment: Miranda Rights; Sixth Amendment: Right to Counsel)
Bloate v. United States, 130 S. Ct. 1345 (2010)                                  47
        (Statutory Construction)
Bobby v. Van Hook, 130 S. Ct. 13 (2009)                                          15
        (Sixth Amendment: Right to Counsel)
City of Ontario, California v. Quon, 130 S. Ct. 2619 (2010)                      4
        (Fourth Amendment: Searches)
Corcoran v. Levenhagen, 130 S. Ct. 8 (2009)                                      40
        (Habeas Corpus)
Dykstra v. Iowa District Court for Jones County, 783 N.W.2d 473 (Iowa 2010)      34
        (Ex Post Facto Clause; Due Process: Retroactivity)
Florida v. Powell, 130 S. Ct. 1195 (2010)                                        10
        (Fifth Amendment: Miranda Rights)
Formaro v. Polk County, 773 N.W.2d 834 (Iowa 2009)                               52
        (Statutory Construction; Due Process: Vagueness; Ex Post Facto Clause)
Iowa Supreme Court Attorney Disciplinary Board v. Carpenter,
        781 N.W.2d 263 (Iowa 2010)                                               73
        (Professional Conduct)
Iowa Supreme Court Attorney Disciplinary Board v. Earley,
        774 N.W.2d 301 (Iowa 2009)                                               74
        (Professional Conduct)
Iowa Supreme Court Attorney Disciplinary Board v. Hauser,
        782 N.W.2d 147 (Iowa 2010)                                               76
        (Professional Conduct)
Iowa Supreme Court Attorney Disciplinary Board v. Hoglan,
        781 N.W.2d 279 (Iowa 2010)                                               77
        (Professional Conduct)
Iowa Supreme Court Attorney Disciplinary Board v. Johnson,
        774 N.W.2d 496 (Iowa 2009)                                               79
        (Professional Conduct)
Iowa Supreme Court Attorney Disciplinary Board v. Marzen,
        779 N.W.2d 757 (Iowa 2010)                                               81
        (Professional Conduct)

                                 ~ Table of Cases ~

Iowa Supreme Court Attorney Disciplinary Board v. Sobel,
       779 N.W.2d 782 (Iowa 2010)                                            83
       (Professional Conduct)
Maghee v. State, 773 N.W.2d 228 (Iowa 2009)                                  54
       (Statutory Construction)
Magwood v. Patterson, 130 S. Ct. 2788 (2010)                                 48
       (Statutory Construction)
Maryland v. Shatzer, 130 S. Ct. 1213 (2010)                                  12
       (Fifth Amendment: Miranda Rights)
McDaniel v. Brown, 130 S. Ct. 665 (2010)                                     42
       (Evidentiary Issues)
McDonald v. City of Chicago, Illinois, 130 S. Ct. 3020 (2010)                1
       (Second Amendment; Due Process: Incorporation)
Michigan v. Fisher, 130 S. Ct. 546 (2009)                                    5
       (Fourth Amendment: Searches)
Porter v. McCollum, 130 S. Ct. 447 (2009)                                    17
       (Sixth Amendment: Right to Counsel)
Presley v. Georgia, 130 S. Ct. 721 (2010)                                    24
       (Sixth Amendment: Right to a Public Trial;
       Due Process: Right to a Fair Trial)
Reilly v. Iowa District Court for Henry County, 783 N.W.2d 490 (Iowa 2010)   30
       (Due Process: Right to a Fair Trial; Ex Post Facto Clause;
       Due Process: Retroactivity)
Renico v. Lett, 130 S. Ct. 1855 (2010)                                       50
       (Statutory Construction; Fifth Amendment: Double Jeopardy)
Sears v. Upton, 130 S. Ct. 3259 (2010)                                       18
       (Sixth Amendment: Right to Counsel)
Smith v. Spisak, 130 S. Ct. 676 (2010)                                       60
       (Jury Instructions; Sixth Amendment: Right to Counsel)
State v. Anderson, 782 N.W.2d 155 (Iowa 2010)                                56
       (Statutory Construction)
State v. Bogan, 774 N.W.2d 676 (Iowa 2009)                                   14
       (Fifth Amendment: Miranda Rights)
State v. Braggs, 784 N.W.2d 31 (Iowa 2010)                                   58
       (Statutory Construction)
State v. Bruegger, 773 N.W.2d 862 (Iowa 2009)                                26
       (Eighth Amendment)
State v. Canal, 773 N.W.2d 528 (Iowa 2009)                                   22
       (Sixth Amendment: Right to Counsel; Statutory Construction)
State v. Jordan, 779 N.W.2d 751 (Iowa 2010)                                  69
State v. Lyman, 776 N.W.2d 865 (Iowa 2010)                                   62
       (Jury instructions; Due Process: Right to Fair Trial)

                    Criminal Law Newsletter (2009 – 2010 ed.)                      

State v. Paredes, 775 N.W.2d 554 (Iowa 2009)                                 43
       (Evidentiary Issues)
State v. Schuler, 774 N.W.2d 294 (Iowa 2009)                                 64
       (Jury Instructions)
State v. Spates, 779 N.W.2d 770 (Iowa 2010)                                  65
       (Jury Instructions)
State v. Tripp, 776 N.W.2d 855 (Iowa 2010)                                   28
       (Eighth Amendment)
United States v. Marcus, 130 S. Ct. 2159 (2010)                              33
       (Ex Post Facto Clause)
Veal v. State, 779 N.W.2d 63 (Iowa 2010)                                     29
       (Eighth Amendment)
Waters v. Iowa District Court for Henry County, 783 N.W.2d 487 (Iowa 2010)   71
       (Sentencing; Ex Post Facto Clause; Due Process: Retroactivity)
Wellons v. Hall, 130 S. Ct. 727 (2010)                                       40
       (Habeas Corpus)
Wong v. Belmontes, 130 S. Ct. 383 (2009)                                     20
       (Sixth Amendment: Right to Counsel)
Wood v. Allen, 130 S. Ct. 841 (2010)                                         21
       (Sixth Amendment: Right to Counsel)  


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