Iowa Supreme Court Approves Innocence-Based Challenges to Guilty Pleas

The Des Moines Register reports on this significant sentencing news:

For the first time, the Iowa Supreme Court has ruled that people who plead guilty to crimes may challenge their convictions if new evidence of their innocence emerges. 

The court ruled Friday in a 4-3 decision in the case of Jacob L. Schmidt, who pleaded guilty in 2007 of sexually abusing his 14-year-old half-brother the year before. Years later, in 2014, Schmidt's half-brother began telling others that the abuse never occurred. 

The court said last week that Schmidt's case should be returned to the district court in Woodbury County, which is now allowed to consider the new evidence of Schmidt's innocence. 

"It is time that we refuse to perpetuate a system of justice that allows actually innocent people to remain in prison, even those who profess guilt despite their actual innocence," Justice David Wiggins wrote in the majority opinion, which was joined by Chief Justice Mark Cady and justices Daryl Hecht and Brent Appel.

The ruling is "definitely the first time that the Iowa Supreme Court has recognized the actual innocence claim," said Brian Farrell, a law professor at the University of Iowa. Farrell is also co-founder and president of the board of directors of the Innocence Project of Iowa, which wrote an amicus brief supporting Schmidt's appeal. 

That makes Iowa one of about 14 states in the country to recognize such claims, said Farrell, who called the ruling "an 8 or 9 on a 10-point scale of significance."

The full opinion is here.

Of particular note is the Court's discussion of the phenomenon of defendants who plead guilty despite their innocence, which begins on page 14 of the opinion. From that analysis:

A plea does not weed out the innocent. Rather, a plea is an explicit agreement [footnote omitted] between the prosecutor and the defendant that “establishes a ‘going rate.’ ” John L. Kane, Plea Bargaining and the Innocent, The Marshall Project (Dec. 26, 2014, 1:05 PM), https://www.themarshallproject.org/2014/12/26/plea-bargaining-and-the-innocent [https://perma.cc/R5FU-Y3T4]. Specifically, “[t]he anticipated sentence is the central concern in the negotiation[,]” but “[t]he problem . . . is that both innocent and guilty defendants are placed in the same pot and the goal is to achieve the appearance of justice, not the realization of it.” Id.; see also Missouri v. Frye, 566 U.S. 134, 144, 132 S. Ct. 1399, 1407 (2012) (“In today’s criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”). Pleading guilty does not automatically mean the defendant is actually guilty. Sometimes, an innocent defendant is choosing the lesser of two evils: pleading guilty despite his or her actual innocence because the odds are stacked up against him or her, or going to trial with the risk of losing and the prospect of receiving a harsher sentence. 

Innocent defendants may also plead guilty in the face of pressure from prosecutors and even their own defense counsels. Today, “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.” Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014). Behind these closed doors, prosecutors have broad discretion: “the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed.” Id.; see also Innocence Project, Why Are People Pleading Guilty to Crimes They Didn’t Commit? (Nov. 25, 2015), https://www.innocenceproject.org/why-are-people-pleading-guilty-to-crimes-they-didnt-commit/ [https://perma.cc/3CEX-WEW2].

The dissenting justices argue that this rule may lead to a flurry of new claims that disturb earlier guilty pleas. Even if these claims arise, the burden they create is likely outweighed by the possibility that some of those earlier guilty pleas were entered into by innocent defendants. (For the intricate calculations involved in these determinations, see N Guilty Men by Alexander Volokh).

Moreover, the need for new claims may be reduced if prosecutors take this new rule to heart. While one hopes that even without the Court's ruling, prosecutors would stay true to their roles as "minister[s] of justice and not simply . . . advocate[s]," this rule may prompt prosecutors to ensure that negotiated pleas are on solid factual footing to minimize the probability of an innocence-based challenge in the future.

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"Don't Be a Lawyer"

I recently read an article by an anonymous author urging readers to avoid becoming attorneys, noting various troubles facing the profession and the difficulties facing those starting out. Here are some of the relevant excerpts:

The competition is terrific. Under prevailing conditions, legal ability is no longer a prerequisite to success. The lawyer without connections is a business-getter, or he rots in his office. Wiles have so boldly supplanted ethics that we have had in recent swift succession a receivership scandal, an ambulance chasing scandal, and a jury-fixing scandal. The integrity of the profession is constantly impugned in the press, and all lawyers are under a cloud. 

It is only the dearth of other employment that keeps the counselors in my town from deserting in droves. Many barely earn their keep, or are assisted by parents, in-laws, or wives. They no longer expect a steady income from law, but live only in hope of a steady job or a political sinecure. Recently a prominent young attorney quit the profession to become a shoe salesman. Others have gone into insurance, bookselling, and storekeeping. One is now the happy proprietor of a fruit stand. 

. . .  

I believe that the harassments which have made the practice of law so dismal today are due principally to overcrowding. My state did not contain a single law school ten years ago; now there are three booming ones. Huge morning, afternoon, and evening classes accommodate everybody. In ten years, the number taking bar examinations has increased by 348 percent.  

. . .  

Hopelessness has sunk deep into my profession, but most pessimistic of all are the newcomers. If I were a young attorney beginning the practice of law in my community today, I should be at my wit's end to earn a dollar, unless I were resolved upon wholesale disregard for ethics. The sharpster has a way of coming out on top nowadays, and survival has come to be most certain for those lawyers who are willing to meet vicious competition with still more vicious practices. It is a condition fraught with serious consequences for the public as well as for the ethical practitioner in law.  

. . .  

Decent youngsters would be better off these days if they raised potatoes instead of practicing law. There is little money in either, but at least from potatoes you derive some satisfaction, and retain your self-respect.

This fairly standard set of indictments against the legal profession is quoted from the straightforwardly-titled article, "Don't Be a Lawyer," which was published in The American Mercury in 1936, and which I found in an April, 1936 edition of Reader's Digest. I'm a bit miffed to be discovering this article now, as I have already become a lawyer, and in the 75 years between the publication of the article and my enrollment in law school, nobody thought to refer me to the author's warnings.

While I have not been able to locate a version of the article online, after a bit of searching, I located this response by William Cain which was published in the Notre Dame Lawyer in November, 1936. Cain criticizes the "pessimistic mental wanderings" of the anonymous author and writes that while many of the facts the author set forth are true, the article focuses on the worst practitioners of the legal profession -- a profession that is primarily composed of "learned, courageous and upright men." (This is not entirely true -- there were learned, courageous and upright women in the legal profession as well, in as early as 1869). Cain points out that the author's selective focus on negative examples could employed to call for readers to avoid the medical profession, business of banking, and institution of marriage.

From Cain's response:

Notwithstanding my anonymous friend's statement that legal ability and real talent are no assurance of success, my own intimate observation and experience of over thirty years active practice at the bar is exactly the reverse. In all that time, I have never known any lawyer with moral courage, ability, integrity and dependability who has failed to enjoy a satisfactory practice yielding amply sufficient pecuniary returns to support himself and family in decency, and to properly educate his children. None of them are, or ever will be, millionaires. None ever wanted to be. Their burning and abiding ambition was to become competent lawyers, and to enjoy the trust and confidence of the communities in which they lived and wrought, and this they achieved. And whatever others may call it, I call it "success."

Things have changed, and I suspect that by now there are some decent lawyers who have managed to surpass that million-dollar mark. But the anonymous article and Cain's response show that present-day arguments about the feasibility of joining the legal profession stretch back farther than one might initially suspect.

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Winkler on Corporations and Their Quest for Civil Rights

I haven't posted in a while, partially because work is busy, but also because I have been making more time for recreational reading (a hobby that can be difficult to pursue when one is an associate in the field of civil litigation).

But I've somehow managed to get some reading done recently, so partially to highlight some darn good books (and partially to dilute the frequency of posts fixating on ordinances banning "distracted walking"), here's the first of a couple posts on what I've been reading!

First up is We the Corporations: How American Businesses Won Their Civil Rights by Adam Winkler. I bought the book partially because I was a student at UCLA Law and had the opportunity to take one of Professor Winkler's classes, and partially because I read Winkler's previous book, Gunfight: The Battle Over the Right to Bear Arms in America a few years ago and thought it was excellent.

Winkler's We the Corporations, like Gunfight, showcases his remarkable ability to tell a story. Many cases that are explored in his book are covered in typical law school classes or casebooks on constitutional law. The cases, while significant, are often dry, dense, and confusing. Not here. In discussing significant cases or doctrine, Winkler develops the plot by delving into facts behind each case, the drama of the conflicting interests involved, and the pitfalls of the litigation preceding the various opinions. Winkler explores the characters involved by discussing the histories, backgrounds, quirks, and vices of the corporations, their officers, and the attorneys involved in the cases. All of this combines to create an engaging series of stories that paint a picture of the development of various rights, or sets of rights, that corporations have managed to secure. It is a vast undertaking that is nevertheless straightforward and clear enough to appeal to attorneys and non-attorneys alike. 

The books is nearly 500 pages (closer to 400 if you don't count the endnotes), but you can expect to breeze through it in far less time than you might think because the writing is so clear and engaging. And I hope that many choose to engage, as Winkler reveals that the common debate over whether "corporations are people," is far more nuanced than may be expected. For instance, Winkler points out that corporations have won some of their greatest victories when their personhood is ignored. Rather, it is when courts pierce the corporate "veil" and focus on the people behind the corporation, that corporations have made some of their most dramatic strides in their quest for civil rights. Winkler also draws attention to the recurring phenomenon of corporations' sheer ability to get what they want through the courts. Through hiring the best lawyers, choosing the best cases, and persisting as only tireless business entities can, corporations have often gained recognition of their rights earlier than the other disadvantaged groups who are typically central to the study and discussion of civil rights.

You can find reviews of We the Corporations here, here, here, and here.

Next up will be my thoughts on The Justice of Contradictions: Antonin Scalia and the Politics of Disruption by Richard Hasen. Spoiler alert: it's also pretty dang good.

P.S.: For those looking for recommendations for shorter things to read, check out this post at Josh Blackman's blog on Justice Brennan's correspondence with Barack Obama.

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Iowa Senate Bill Would Require State Supreme Court Supermajority to Find Laws Unconstitutional

The Des Moines Register reports:

The Iowa Senate narrowly approved a controversial bill Tuesday that says no state law can be held unconstitutional by an Iowa court without the concurrence of at least five justices of the seven-member Iowa Supreme Court. 

Senate File 2282 was approved on a 26-24 vote, sending it to the Iowa House, where it faces an uncertain future. All the votes in favor were cast by Republicans, while the opposing votes came from 20 Democrats, one independent and three Republicans.

Here's the text of the bill:

Pursuant to the provisions of Article V, section 4 of the Constitution of the State of Iowa, the general assembly declares that no statute shall be held unconstitutional by a court of this state except by the concurrence of at least five justices of the supreme court of Iowa.

The Iowa Supreme Court is made up of seven justices, meaning that this bill would require a supermajority of justices to hold that a state law is unconstitutional. Additionally, the bill applies to statutes being held unconstitutional by "a court of this state," meaning that a statute cannot be deemed unconstitutional unless it is ultimately appealed to the Iowa Supreme Court where at least five justices agree that the law is unconstitutional.

This structure of the bill makes some sense, as it avoids the scenario where the Iowa Court of Appeals holds that a law is unconstitutional, and then becomes precedent because it is not appealed to the State Supreme Court. At the same time, the bill would have a strange effect on the status of Court of Appeals' opinions that are not taken up by the State Supreme Court -- as opinions finding state laws unconstitutional that are not reviewed by the Supreme Court would appear to run afoul of the law and therefore be invalid.

Democrats in the Republican-controlled state senate have spoken out against the law, arguing that it seizes power away from the Supreme Court. Republicans agree -- arguing that the courts should not have the power to overturn laws without this additional requirement. For some truly dense commentary, look no further than Senator Jason Schultz:

Sen. Jason Schultz, R-Schleswig, thanked [Senator Julian] Garrett for advancing the bill, saying it's a measure needed in this day and age. 

"Ladies and gentleman, this bill acknowledges that the Constitution is a contract; that the words do not change. What this bill does is say that we are not going to simply have a popularity contest on the constitutionality of a law," Schultz said.

While it isn't really related to the substantive issues, I'm going to break down Schultz's comment, as it demonstrates a stunning failure to grasp what the Senate is doing and how the the Court works. First, Schultz's assertion that the Constitution is a contract is not correct, as the Constitution is a set of rules that govern the basic functions of state government, and also sets forth individual rights that may be used to strike down laws. It's a set of rules that was enacted by popular vote -- not a contract.  Second, even if the Constitution is a contract, it's unclear how the law acknowledges this. Third, the words of the Constitution do change -- the Constitution can be amended.  Fourth, the bill does effectively say there will be a popularity contest on the constitutionality of law in that five, rather than four, justices can still hold a law unconstitutional. The law just has to be "more unpopular" if we are to adopt Schultz's misleading phrasing.

While I don't approve of the law, as it raises some unpleasant memories of woefully misguided backlash against the Court back in 2010, I don't agree with Democratic lawmakers who claim that the bill is unconstitutional. From the Register:

Sen. Matt McCoy, D-Des Moines, said he was troubled by the partisanship that had appeared to develop over the bill, as well as what he described as "the contempt that this Legislature has towards the courts." 

"I have news for you," McCoy said. "This is not going to be constitutional, and Iowans are going to be angry again at this effort to bring partisanship into this process. Make no mistake about it: This is about partisan politics. When the Legislature doesn't get its way, it punishes the courts."

While the bill certainly has an impact on the separation of powers, and while it certainly appears to be a partisan ploy, McCoy is not correct to imply that the bill violates the Iowa Constitution. Article V, Section Four of the Iowa Constitution states that the Iowa Supreme Court shall "constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe." (emphasis added). This section indicates that the general assembly can place restrictions on the court's jurisdiction. This constitutional grant of power to the legislature is reaffirmed by Article V, Section 14, which states that the general assembly has the duty to "provide for a general system of practice in all the courts of this state," meaning that the legislature is charged with making court rules and enacting procedures.

Senate File 2282 would place a limit on the Iowa Supreme Court's ability to hold laws unconstitutional. It is a clear attempt by the legislature (which is now entirely controlled by Republicans) to limit the power of the Court. This attempt smacks of partisan politics, as Iowa conservatives likely still see the Court as a liberal institution following its 2009 decision in Varnum v. Brien striking down the state's law restricting marriage to opposite-sex couples. It's unfortunate to see such partisan fiddling with the mechanics of the legal system and I hope (though I am not optimistic) that the bill will fail in the Iowa House.

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Montclair Passes Broad Ordinance to Combat "Distracted Walking"

The city of Montclair in Southern California recently passed an ordinance that bans crossing the street while talking on the phone, looking at the screen of an electronic device, or wearing headphones or earbuds on both ears (regardless of whether they are playing music).

Many outlets have reported on this ordinance. I learned about it this morning from a teaser for a local public radio report that you can find here. Illustrious publications such as the LA Times reported on the ordinance. Local outlets as well report on it here and here.

Because I'm a lawyer with a blog and not a "journalist," I'm going to depart from the standard practice that all of these reports have in common, which is to fail to provide a link to the text of the ordinance. Here it is. You're welcome. Here, also, are the minutes for the December 4, 2017 meeting where this Ordinance was approved.  The minutes contained the ordinance number (17-791), which finally led me to the text. (Two links to the text in one post. I'm out of control.) 

To make things even crazier, here's (most of) the text of the municipal code sections that the ordinance added to the Montclair Municipal Code (and which became effective on January 3, 2018):

8.02.010. Definitions. 
As used in this Title, the following definitions shall apply. For purposes of Title 8, these definitions shall supersede any other definitions of the same terms elsewhere in this Code.  

Emergency Responders include, but are not limited to, public safety officers of either a municipal or county police department or fire department, emergency medical technicians, paramedics, private ambulance service responders, emergency management workers, and federal and state law enforcement and fire service officers on duty and responding to an emergency service request.  

Mobile Electronic Device means any handheld, head- or body-mounted, or portable electronic equipment capable of providing wireless and/or data communication between two or more persons or a device for providing amusement, including but not limited to a cellular phone, smart phone, text messaging device, paging device, personal digital assistant, laptop computer, video game, video/audio player, digital photographic device, or any other similar electronic device. 

Pedestrian means a person who is afoot or who is using any of the following: (1) a means of conveyance propelled by human power other than a bicycle; or (2) an electric personal assistive mobility device.  

Personal Audio Equipment means any device placed in, on or around a person's ears capable of providing an audible sound, including but not limited to headphones or ear buds.  

Viewing means looking in the direction of the screen of a mobile electronic device.  

Chapter 8.28 PEDESTRIANS  

8.28.020. Pedestrian Use of Mobile Electronic Devices.  

A. No pedestrian shall cross a street or highway while engaged in a phone call, viewing a mobile electronic device or with both ears covered or obstructed by personal audio equipment.  

B. Upon presenting evidence, it is an affirmative defense to any citation for a violation of subsection (A) that the cited person was engaged in, or making, a "911" emergency communication with a mobile electronic device.  

C. Emergency responders viewing a mobile electronic device, or whose ears are covered or obstructed by audio equipment, while in the performance and scope of his or her official duties are exempt from subsection (A).  

D. Persons with medically prescribed hearing aides [sic] are exempt from subsection (A).  

E. Any person who violates any provision of this Chapter is guilty of an infraction violation punishable in accordance with Chapter 1 .1 2 of Title 1 of this Code.

A few things.

Montclair City Manager Edwin Edward Starr said that he wanted to address "distracted walking" in the city, and that he eventually found Honolulu's distracted walking ordinance which was passed in 2017. (For the record, the LA Times did not link to the text of Honolulu's ordinance, but the Daily Bulletin did).

I too had heard of Honolulu's ordinance, which I blogged about here. I concluded that while Honolulu's ordinance could give rise to some strange situations and maybe abuse of discretion in its enforcement, it was narrow enough that these problems either would not arise, or at least only have a minimal negative effect. Starr claims that he "took cues" from the Honolulu ordinance, but it is unclear what this means, as Montclair's ordinance prohibits far more conduct than Honolulu's ordinance.

Honolulu banned looking at the screen of an electric device while crossing the street. This makes sense because if a pedestrian is looking at the screen, they are not looking elsewhere -- such as to either side to ensure that no cars are coming, or ahead to see if the "Walk" sign is indeed lit. Montclair, on the other hand, bans looking at screens, but also bans talking on phones and having headphones on both ears while crossing the street. These activities may distract pedestrians to a certain degree, but they at least involve circumstances where the pedestrian not necessarily looking at the screen, and therefore far less likely to be blindsided by a car or to fall into a pothole.

Not Montclair's ordinance, however.  Montclairs broad ban means that anyone who is jogging while listening to music must now remove their headphones before crossing a street. The ordinance does not defined "engaged in a phone call," so it is not clear if simply putting a phone down by one's side before crossing the road is fine, as the phone is still "engaged" in that call. The safest bet would be to hang up your phone while crossing the street, so good luck if you are on the phone asking for directions to anywhere in Montclair.

While Starr and his staff who drafted the ordinance attempted to curtail its foolish overreach to exempt people with hearing aids from the ban's gratuitous scope, they even failed at this.  The ordinance states that people with medically prescribed "hearing aides" are exempt from the ban.  This apparently refers to the rare circumstance in which a doctor decides to address a patient's hearing loss by prescribing two or more assistants to follow the hard-of-hearing person around and yell any words that the person may not have heard, or scream at the person to alert them to quiet noises that may otherwise be missed. I think it would have been better had they exempted people with "hearing aids," but I'm not the municipal-code-drafter.

If Montclair had copied and pasted Honolulu's ordinance, that would have been fine. But the ordinance that Montclair passed prohibits a far greater range of conduct, which could give rise to selective enforcement of the law. After all, if the number of people who violate the ordinance is far greater than the number who may be practically cited, it falls on law enforcement to decide when to enforce it and against whom the ordinance should be enforced. This makes it all the more likely that the law will be enforced along racial or class-based lines.

"But it's only a $100 fine!" a supporter of the ordinance may say. To which I respond: $100 is a significant amount for some, these penalties could add up since they prohibit such a routine activity, and fines are often accompanied by various court and administrative fees that expand the amount that people end up needing to pay.

"But the city is going to put 'stencils' on every crosswalk corner warning people not to use phones!" a supporter may argue. To which I respond: the sign itself should be enough to alert people, removing the need for an ordinance, and the city's plan to put up "decals depicting a no-cellphone symbol below the words: 'Don't be Distracted'" is misleading because those decals imply that only cellphone use is prohibited when, in fact, the ordinance prohibits far more.

Honolulu's ordinance banning looking at screens while crossing the street was fine, if perhaps unnecessary. Montclair's ordinance is sloppy, overly-broad, and should never have been passed.

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