The Verdict 
Criminal Law Commentary - Todd Miler
The Lombardi Law Firm Blog
Criminal Law Commentary - Todd Miler
If Mark Becker was Sane Why Are We Worrying about His Sanity?
I have to wonder whether some of the jurors are kept awake at night feeling regret for the decision that was made. If it were me I could never have convicted this man, but then again I’m not fearful of mental health issues. I think most people are afraid. What is insane was the gutless jury and the decision they made.MySpace, Facebook and Twitter: do you know who your friends are?
Last week, pursuant to a lawsuit filed against the U.S. government under the Freedom of Information Act, the government had to concede that it has in fact been doing the same thing. They even have a “how to” document for its agents, instructing them how to obtain information about Americans through pretending to be something they are not, primarily on MySpace, Facebook, Twitter and LinkedIn, all popular social networking internet sites.SHOW ME YOUR PAPERS!
Lately I’m growing more and more concerned that we are moving towards living in a police state. Today I hear that the Des Moines Police Department entered Peggy’s, the popular Drake University hangout, and demanded to see everyone’s identification. Is this the USSR? Nazi Germany?Why do criminal defendants need a bonsman?
Whenever a person is arrested in Iowa the Court is going to need some assurance that the arrested person will appear at their upcoming court dates. The easiest way to make sure that they appear is to require them to remain in jail. Fortunately, in almost every case an amount of money is set as bail which a person can post with the Clerk of Court to obtain release from jail. For minor offenses, often times the judge will release someone on their own recognizance, which is their simple promise to appear for court.The government has found a way to save money: scare the officials with criminal misconduct!"
The State of Iowa has started charging government officials with crimes for mismanagement and abuse of tax money. That’s right! So where have they elected to begin? The first to be charged are Tom Wheeler, Wendy Weiner Runge and Matthias Alexander Saunders, although it appears Wheeler is the only person holding an official position. These felony and misdemeanor criminal charges are all apart of the so-called Iowa Film Office scandal. The charges include allegations of theft and misconduct in office: the State prosecutor claims that their expenses were just too much.Criminal Law Commentary: It is time to decriminalize marijuana in Iowa.
It is time to decriminalize marijuana in Iowa. Nebraska has. Minnesota has. So have Ohio, New York, Massachusetts, California, Oregon, Colorado, Mississippi, North Carolina and Nevada. In any of those states, a person in possession of marijuana for purely recreational purposes can not be sent to jail or prison. They can only receive a fine. Decriminalization doesn’t mean its legal, just like speeding isn’t legal. It just means that we shouldn’t be sending a person to jail or prison for possessing a small amount of marijuana.Glenrock’s Beat Cops Kicked Out of the Taser Parade
This one is coming out right, Wednesday’s Star Tribune reports the two officers who Tased the 76-year-old parade participant over where the parade should end, were given their walking papers and told to take a hike. We reported earlier on this mess out of Glenrock, Wyoming and suggested deeper budget cuts that included the police chief and the county prosecutor.
The Bush Legacy Paraded in Wyoming: An Intolerant Police State, a new low for America. September 7, 2009.
Now if they kick the prosecutor and police chief out of office we can all have a parade.
Town officials announced the firing this morning in a press release.
"After considering all aspects of the unfortunate event which occurred after the parade during Deer Creek Days this year, the decision has appropriately been made that the two Glenrock police officers involved are relieved of duty," the statement read.
The officers, Sgt. Paul Brown and officer Mike Kavenius, can appeal the decision.
Star Tribune, Wyoming
Michael Jackson was just like the rest of us.
The King of Pop is dead. Why did he die? If one can believe rumors, i.e. "the news", then we should believe that he died of a prescription drug overdose. The question becomes whether it was purely accidental, or something more sinister. Michael Jackson's family appears to blame Michael's personal physician. The allegation appears to be that the good Doc was injecting or otherwise providing Michael with prescription meds. If this had occurred in Iowa, it is possible that the physician, and perhaps others, could be facing criminal charges for homicide and delivery of drugs.According to the Centers for Disease Control, unintentional fatal drug overdoses nearly doubled from 1999 to 2004 and were the second leading cause of accidental death in the United States in 2004, behind only automobile crashes. Deaths from accidental overdoses increased to 19,838 in 2004, from 11,155 in 1999.
OxyContin, as well as their generic cousins oxycodone and hydrocodone, are from the same family of drugs as heroin. Some refer to these drugs as "hillbilly heroin." Used correctly, they ease the pain of people recovering from surgery or coping with terrible back pain. They can become powerfully addictive drugs that users need more and more of to get high. Before long, many users live for their next pill and will do anything to get it — just like heroin addicts. And if painkiller abusers are also drinking alcohol or taking allergy medications, they can wind up shutting down their lungs. Some states have criminally charged the manufacturers of these drugs for misrepresenting the damage that they can cause. There are also civil lawsuits pending regarding addiction and abuse against the manufacturers.
Do people get charged in Iowa in these types of cases? Absolutely. One needs to look no farther than last month in Plymouth County. Nicholas Clay, a 20 year-old man from Akron, died of an overdose. The State has charged 18 year-old Justin Bringman and 39 year-old Stuart Barton for their involvement in his death. Both are facing very long prison sentences.
Even if someone does not overdose or suffer any harm, it is a felony in Iowa merely to give someone a prescription medication, even if just one pill. Simple possession of a prescription medication without a prescription is a misdemeanor. It goes without saying that these cases have far reaching ramifications, beyond the prison sentences and fines.
Michael Jackson's friends and family are rushing around telling everyone who will listen that he was in great shape and otherwise healthy. An argument could be made that Michael was a co-conspirator in his own death, but that's for the lawyers to decide. We need much more information than what's provided through the media. Only time will tell if the Doc is criminally or civily liable.
and Vicodin
Media trials, domestic abuse and murder in Iowa.
Domestic assault or abuse charges are one of the most frequently charged crimes. They also carry some of the worst penalties, not to mention the negative stigma which attaches. Often charges are filed against the spouse that does not call the police. In other words, whomever calls the police first, wins. These cases are often extremely difficult to sort through for everyone involved. Because of the penalties and stigma, false reports are often filed. One spouse attempts to obtain the upper hand for a variety of reasons and false charges can be filed.Undoubtedly there are violent domestic situations. I've had family members suffer at the hands of a violent abuser. Many of the violent crimes, and most of the murder cases I've been involved in, have had a domestic component. This weekend I heard that a Des Moines man named Charles Ralph Fenton has been charged with murder in Madison County and that it had a domestic component, and this brought these and other issues to mind again.
The media has regurgitated the State's version, which is usually to charge the guy with murder in the first degree and then sort it out later. (There are women who are also charged with these types of crimes). Of course Mr. Fenton does not have the ability nor the resources to spoil the jury pool the way the State always does. Having had many trials in Madison County and other domestic murder cases in other rural Iowa counties, the State knows this information will spread like wildfire. I guarantee everyone in Winterset, St. Charles, Peru, Earlham and on and on has heard about this case. I have had a case moved before from Madison County due to media attention and community bias. Don't get me wrong, they are good people, but they are people and human nature will take over and as a society we demand a fair trial. I only hope that the media will consider Mr. Fenton's rights to due process and a fair trial. We all need to remember that he is innocent until proven guilty beyond a reasonable doubt. But has this become "justice" in our society these days where we are so quick to convict? The government is always the most well-represented and richest party in the courtroom. Plato said long ago, "justice is but the interest of the stronger." Was he right?
And since I am quoting, here is another to keep in mind with regards Charles Fenton or any other case that the government tries in the media: "Where there is room for question, something is wrong." Here is a question: the reports in the media say that Mr. Fenton was hospitalized after the incident. Why?
As I said before, often times women are charged in these cases. If you will recall, Mary Winkler was charged with murder in Tennessee in 2007 with shooting her preacher husband in the head with a shotgun. It was all over the media. Dr. Lynne Zager testified for the defense in that case. I have worked with Dr. Zager before and know from experience she is a well-qualified expert. Dr. Zager testified in the Winkler case that Mrs. Winkler could not have formed the intent to kill due to a compromised mental condition and she would have dissociative episodes. Winkler was convicted of voluntary manslaughter, served a brief prison sentence, and later obtained custody of her children.
As Thomas Jefferson said, "The spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive." We need to resist everyone of the government's attempts to poison a trial. Alright, one more quote and then I'm done: "Our liberties we prize and our rights we will maintain." Our state motto. Its on the flag. The same flag that bears the name of the first party listed in every criminal case in Iowa. We the people need to hold them (us) to it, in every case. No matter what, no matter the charge. There is nothing more important.
Caught on video at Des Moines City Hall.
Theft involves the taking of property of another. The last I knew, this is still America and in order to be convicted of a crime requires, among other things, proof beyond a reasonable doubt. Its easy to take aim at persons accused of crime and criminal defense attorneys, but walk with me one day, meet my clients and you will feel differently about the fight to preserve our way of life. Its cases like Ryan Wacome's that erode our rights little by little.
According to the Des Moines Register, Ryan Wacome has been charged with a series of thefts at Des Moines City Hall. Wacome was a 20 year-old janitor. The Register says that small amounts of money were missing from desks over the past month so they contacted the Des Moines Police Department and set up a sting operation. A detective put a "small amount of money" in a desk and placed a camera to record whatever occurred. The camera allegedly caught Wacome removing the money. I hope he has not been charged with the other alleged thefts as has been reported. It would be one thing for him to agree to make restitution for the other amounts of money, but it would likely be a violation of his rights to get convicted of the other alleged thefts. Even if he confesses, Iowa criminal law requires more than that for an otherwise uncorroborated crime. I would also be curious to hear what evidence there is that the other thefts actually did occur. I keep some pennies and nickels in my desk but I can't tell you how many. Let me look, hmmmm, I thought I had a few more. Better call the Des Moines PD and set up a sting.
But here is the other thing: video and photographic evidence are sometimes the most unreliable evidence. Look at this photograph of an alleged burglary yesterday in Des Moines. Jurors are common people just like you or I, and if its difficult to tell who is in the photo, then that is not proof beyond a reasonable doubt. Thankfully most jurors are cognizant of that fact. I once had a convenience store robbery case where it was caught on surveillance video. The clerk alleged a weapon was displayed and she was stuck in the cooler. There was a cop in the parking lot and my client was nabbed walking out the door into the parking lot. It was 5 a.m. Very few other persons were around. The person in the video did resemble my client and he was facing a 62-year prison sentence. For good reason, my client is a free man today. A photo is not always worth a thousand words.
Caught on video at Des Moines City Hall.
Theft involves the taking of property of another. The last I knew, this is still America and in order to be convicted of a crime requires, among other things, proof beyond a reasonable doubt. Its easy to take aim at persons accused of crime and criminal defense attorneys, but walk with me one day, meet my clients, and you will feel differently about the fight to preserve our way of life. Its cases like Ryan Wacome's that erode our rights little by little.According to the Des Moines Register, Ryan Wacome has been charged with a series of thefts at Des Moines City Hall. Wacome was a 20 year-old janitor. The Register says that small amounts of money were missing from desks over the past month so they contacted the Des Moines Police Department and set up a sting operation. A detective put a "small amount of money" in a desk and placed a camera to record whatever occurred. The camera allegedly caught Wacome removing the money. I hope he has not been charged with the other alleged thefts as has been reported. It would be one thing for him to agree to make restitution for the other amounts of money, but it would likely be a violation of his rights to get convicted of the other alleged thefts. Even if he confesses, Iowa criminal law requires more than that for an otherwise uncorroborated crime. I would also be curious to hear what evidence there is that the other thefts actually did occur. I keep some pennies and nickels in my desk but I can't tell you how many. Let me look, hmmmm, I thought I had a few more. Better call the Des Moines PD and set up a sting.
But here is the other thing: video and photographic evidence are sometimes the most unreliable evidence. Look at this photograph of an alleged burglary yesterday in Des Moines. Jurors are common people just like you or I, and if its difficult to tell who is in the photo, then that is not proof beyond a reasonable doubt. Thankfully most jurors are cognizant of that fact. I once had a convenience store robbery case where it was caught on surveillance video. The clerk alleged a weapon was displayed and she was stuck in the cooler. There was a cop in the parking lot and my client was nabbed walking out the door into the parking lot. It was 5 a.m. Very few other persons were around. The person in the video did resemble my client and he was facing a 62-year prison sentence. For good reason, my client is a free man today. A photo is not always worth a thousand words.
Next week let me talk about eyewitness testimony and whether or not it's reliable. In the meantime you can watch this video clip and test your own ability for being an eyewitness.
Did Iowa legalize marijuana?
Under Iowa criminal law, it could be a felony for someone to be in possession of marijuana or other controlled substances if they have not gone down to the Department of Revenue and obtained a drug tax stamp. For example, if you are in possession of roughly an ounce and a half of marijuana without the tax stamp, you are considered a "drug dealer" and need to obtain a drug tax stamp. This amount of marijuana is readily considered a personal usage amount and can have a low value, say $50. Not my idea of a drug dealer.
There is a phone number for you to call and an address for you to appear in Des Moines if you want to schedule an appointment to obtain the stamp. With most government offices, you can usually just show up and someone will great you with a cheerful face and help you through whatever process you need to complete. I'm not sure that you would be greeted with a cheerful face at the Iowa Department of Revenue when you show up at your appointment. The last I knew, no one had ever filled out the paperwork (didn't our legislators say we need to eliminate unnecessary laws??). I'm guessing we haven't spent much money making these stamps. It seems like it would be a good money-maker for the State of Iowa: $5 per gram of marijuana and $750 per unprocessed marijuana plant. The State also will collect $250 per gram of any other substance. Did Iowa legalize marijuana? Did Iowa legalize other drugs?
Of all the absurd criminal laws we have, this one is just plain terrible. In my opinion it is unconstitutional for a variety of reasons. The worst part is that it presumes someone in Iowa is a drug dealer without any other evidence. Usually this charge is added to many other charges for trial and the prosecutor offers to drop this felony if you plead to another charge. Most people do that unfortunately, and I'm certain that is the reason for the law- to eliminate the need for justice since justice can be so messy. If the charge is not dropped, the State can come after you to collect the money that they feel they are owed since you didn't show up in advance to fill out their forms to obtain the tax stamp.
If anyone decides to take their marijuana down to the Department of Revenue in Des Moines to get a drug tax stamp, give me a call, I'd like to come watch. One thing on my life's list of things to do is to see something that has never been done before. And then I might have lunch with my legislator.
Des Moines has been robbed!
There have been many news stories this week about "robbery." Robbery is a term that is used rather loosely in the general public, but has a specific term in an Iowa courtroom. For example, if someone has a lawnmower stolen from their yard, upon discovery they yell "I was robbed!" This is not a robbery. When the Iowa Chops said they were leaving town, we all said "we were robbed!" Of course, that is not a robbery.
According to news reports, there were some Git-N-Go stores that were all "robbed" a couple nights ago. In a couple of the incidents, the clerks said guns were displayed and money was stolen. If proven beyond a reasonable doubt to a unanimous jury, this is the classic definition of robbery. In at least one incident though the alleged suspects were nothing more than mere opportunists and grabbed cash out of the register while the clerk was away without any threats or weapons. This is not robbery, and is nothing more than a misdemeanor theft. When caught, however, their charges will need to be negotiated.
In another incident, Pegkella Dameron is charged with robbing a Kum-N-Go because she allegedly threw a punch after being confronted for stealing some candy and tea. If convicted, she'll go to prison for a long time. The legislature has considered changing this law so that people like Pegkella that commit an assault during a simple shoplifting event would not be going to prison, but thus far they have not changed the law. At present, this may meet the current Iowa definition of robbery.
Darnell Ramey is charged with robbing a Wells Fargo concession stand during a Coldplay concert. Apparently there were others involved, according to the Des Moines Register. The Register does not make it clear what involvement or charges the others are facing. This case will involve an analysis of accomplice responsibility and a determination will need to be made of each person's role in this incident.
Often times, robbery charges in Iowa should be nothing more than misdemeanor thefts. Robbery is a forcible felony requiring either a 25 year or 10 year prison sentence depending upon the level, so be careful the next time you say someone robbed you. There are some specific defenses to these charges.
What are some "investigative techniques" officers use??
Sex, sex, sex, sex, sex, sex, sex, sex, what the Molly are you talking about?
Let me start with a question: How can any adult be experienced enough to legally kill a person but too immature to know who they should have a sexual relationship?
After writing mega Sex No-No Number One I got more interested in knowing what other states have done when an 18-year-old student, an adult, has sex with another adult that is his/her teacher. I read something on another blog that gave me a laugh for the day because I couldn’t believe the justification I read from the writer who stands behind this societal puritanical hypocrisy. Look what the writer states on Parentdish when the State of Washington ruled the law was not clear whether adults, when one was a teacher, could not have a sexual relationship.
“If I was a parent living in Washington, I'd want this law changed now. Yes, 18-year-olds are technically adults, but they are very, very new adults, and that teacher/student relationship puts them in a vulnerable position. I mean, if it's true love, can't you wait a few months until after graduation? (But not with my kid, buster!)”
Teacher-Student Sex - Legal at Age 18?, by Bethany Sanders Jan 15th 2009 4:00PM
Let me put this in perspective for these hypocrites. What these folks propose is a new idea in legal-illegal behavior norms in society; one that is completed unworkable and full of hypocrisy.
TEACHER STUDENT SEXUAL RELATIONSHIPS
First we have children, then teenagers, followed by new adults and lastly at some unknown age finally, FULL-FLEDGED ADULTHOOD. So during the new very, very new adulthood period you can quit school, go out into the workforce, move out of your parents homes, enlist in the armed forces, get drafted if the very, very old adults decide they want conscription and have you sent home in a body-bag. But, and this is a big butt, you can not have sex with another adult, even a very, very new adult if that person is your teacher. It is illegal to have sex with another adult because these very very new adults don’t know what’s best for themselves between the sheets but when it comes to signing yourself up for the armed services where you very well may get killed you’re level of maturity is sufficient.
Old Army basic training chant: Bang, bang, this is your gun, this one’s for pleasure and this one’s for fun.
The reasoning goes like this, if we need your body to protect whatever it is we prize, oil maybe, you can sign up to be killed but don’t think about having sex with another adult because you’re not mature enough. Once enlisted, the miracle occurs and you can now have sex with your C.O. but never your high school gym teacher. One day you’re too new to this adult game but even on the same day you aren’t too new to this game. Sign up for enlistment in the morning you’re mature; have sex with the English teacher in the afternoon and you’re too new of an adult to know what is right for you.
Bang-bang your dead! Bang-bang she’s pregnant! Bang-bang you sex partner is a criminal.
What a bunch of hypocrites. The Courts are pandering to the legislatures untrained and immature legal reasoning by allowing them to pass any laws no matter how absurd the result and ideas behind them. In the long run the reasoning used in this sexual predator law will lead to more and more absurd results as this concept of gradating adulthood takes hold in other laws. It should stop and the Courts should find this law unworkable, leading to an absurd conclusion and full of unsound reasoning. Just because some mother and father don’t want their kid sleeping with the blonde headed English teacher doesn’t good law. Adults are adults and if they can sign up to shoot a rifle and die for their country then they should be allowed to sleep with whomever they choose; including the teacher. Simply stated, if these 18-year-olds aren’t mature enough to decide about having sex with adult teachers then are they mature enough to work under supervisors who may be older, or commanding officers who will be older or for that matter college professors.
The more we treat young people like idiots without a brain the more we have to dumb-down the cash registers at McDonalds. The truth is children, teenagers and young adults have to make mistakes to build good strong character. Without good character you become a weak link in society. With enough weak links we get a barrel full of rotten apples. Mommies and daddies can’t follow junior onto the battle field of life. If you want junior to be able to right for your oil then start treating him like the man he is.
These are what I call Molly Laws. Molly is our dog. She’s very good about barking when anyone walks by, but whenever we have a thunderstorm she runs and sticks her head under the bed; as if just hiding her eyes from what she thinks is bad will somehow protect her. It's the laws of physics and reason according to Molly.
You want strong armies; then you need strong young men and women. This reasoning that allows enlistment but not sexual engagement is self-serving. It’s the same reasoning that is used to hand out participation trophies. Enough already let the school districts deal with these relationships between teachers and students. Society has more important things to worry about.
Let us not forget WWI, WWII, the Korean War, Vietnam, Iraq I, Afghanistan and Iraq II.
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Criminal Law Commentary - Todd Miler
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