Wednesday, January 5, 2011

Oh, To Be in Iowa

As you probably know, in April 2009, the Iowa Supreme Court unanimously held, in Varnum v. Brien,  that a 
state statute limiting civil marriage to a union between a man and a woman [was] unconstitutional.
One effect was to make Iowa the only state between the coasts to allow same sex marriage.
Another effect was to scare the bejesus out of (or perhaps into, since the academic study of bejesus makes clear that good Christians should want as much bejesus as possible) a whole lot of Hawkeyes whose own marriages are threatened by the idea that Jack and Dave or Susan and Cindy could be married too.  They also got righteously pissed off.  Monica Davey, reporting in the New York Times, quoted a woman who called in to a radio talk show.

I’m almost ready to up and leave Iowa and move back to Minnesota.
As Inspector Gadget might say, Wowsers.  Minnesota, well sure.  A state that boasts of being "The Land of 10,000 Lakes" when it actually has 12,000 won't do anything extreme like support same sex marriage or elect a wrestler as Governor.  Ooops.  My bad.  They did that last one.  Maybe she should almost be ready to move back to somewhere else.  But I digress.
Anyway, the enraged Iowans stormed the election halls in November and ousted the three of the justices who were on the ballot for their regular retention elections.  That won't change the law, and it not even change the attitude of the court since the Governor gets to appoint their replacements.   
But the Iowa Supremes don't just surprise and please (or surprise and infuriate, depending on how you feel about things) on same-sex marriage.
It turns out that they've got a history of being kind of gutsy.  In that article about the justices getting sacked, the Times notes:
From its first decision in 1839, the Iowa Supreme Court demonstrated a willingness to push ahead of public opinion on matters of minority rights, ruling against slavery, school segregation and discrimination decades before the national mood shifted toward racial equality.
And it's not just on issues of equality.  As I reported at the end of November, the court declared that lawyers appointed to do criminal appeals on behalf of indigent criminal defendants may not have their fees capped at a level which will tempt them to cut corners.
The implications of the inadequate compensation framework on the provision of effective assistance of appellate counsel are multiple. First, inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants. See State ex rel. Friedrich v. Circuit Ct., 531 N.W.2d 32, 29–30, 35 (Wis. 1995); see also Coonrad, 362 N.W.2d at 201 (Schultz, J., concurring). Second, the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. See, e.g.,Makemson, 491 So. 2d at 1112 (noting inextricable linkage between compensation and defendants‘ rights to effective assistance of counsel); Stephan, 747 P.2d at 831 (observing inadequate compensation causes inherent conflicts between attorney and client); Jewell, 383 S.E.2d at 544 (stating it is unrealistic to expect appointed counsel to remain insulated from economic reality when losing money). Low compensation pits a lawyer‘s economic interest (recall Lincoln‘s metaphor that a lawyer‘s time is his stock in trade) against the interest of the client in effective representation. See Adele Bernhard, Take Courage: What the Courts Can Do to Improve the Delivery of Criminal Defense Services, 63 U. Pitt. L. Rev. 293, 321 (2002) (declaring conflict of interest between attorney and client in fixed-fee cases as "real"); see also Smith, 681 P.2d at 1381 (holding fixed-price contract to represent defendants in county unconstitutional for, among other things, failure to take into account time that the attorney is expected to spend representing defendants, failure to provide support costs, and failure to take into account the complexity of each case); Olive v. Maas, 811 So. 2d 644, 652 (Fla. 2002) (stating mandatory fee caps create "economic disincentive[s] for appointed counsel to spend more than a minimal amount of time on case").
Well, they've gone and done it again.  This time it's criminal law, and Iowa now joins a minority of jurisdictions that refuse to endorse one of the stupider positions around.  The case is State v. Halstead, and I have to give a bit of explanation to make clear what they did and why it's both self-evidently right and rather daring.

Think of a crime that has two parts.  Say involuntary manslaughter which, with some slight variation among jurisdictions (in name, too) is roughly killing someone while in the course of robbing them.  The killing wasn't intended.  That's why it's "involuntary" manslaughter.  But the guy is every bit as dead as if the killer did it intentionally.

Now, the defendant goes on trial.  The evidence all comes in and the jury says

  • Guilty of involuntary manslaughter.
  • Not guilty of robbery.

You may rightly say,
Huh? How can that be?  He's guilty of killing the guy while robbing him but he didn't rob him?  That's nonsense.
As I said, you'd be right to say that.  Lawyers describe the robbery as a "predicate act," and simple logic says that if the predicate act didn't occur, then neither did the one that depends on it.  Oh, in the involuntary manslaughter example there could have been a killing, maybe murder, maybe something else.  But if there was no robbery, there cannot have been involuntary manslaughter.
Got that?
OK, now, in 1932, the US Supremes had one of these cases before them.  The case is Dunn v. United States.  Dunn was charged with maintaining a nuisance by keeping liquor for sale (remember, this was still prohibition).  The jury said he was maintaining the nuisance but that he neither possessed nor sold liquor.  It was one trial.  The jury heard the same evidence throughout.  The verdict is logically inconsistent.  What to do?
If you're Oliver Wendell Holmes, Jr., you write an opinion for the Court explaining that (1) there's no double jeopardy problem because there could have been separate trials with differing verdicts so why not a single trial, and (2) anyway, who's to say that the jury didn't just decide to give Dunn a partial break by find him not guilty of the liquor charges.

Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Latham v. The Queen, 5 Best & Smith, 635, 642, 643; Selvester v. United States, 170 U.S. 262 , 18 S. Ct. 580. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. As was said in Steckler v. United States (C. C. A.) 7 F.(2d) 59, 60:
    'The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.'
    OK, that last part is just silly.  I mean, sure it's possible that the jury made a conscious decision to go easy on the guy and not convict him of the liquor stuff.  But it's also possible that they decided to shaft him on the nuisance charge even though there was no evidence to support it.

As for the first part, well, in United States v. Powell (1984), the Court admitted that it's double jeopardy analysis was hooey (not the word they used).  But since Powell might have gotten a break as easily as he might have gotten hammered, the only way to know would be to actually figure out what the jurors were doing.  And since that's a bad idea, and since uncertainty in criminal trials is supposed to go the defendant, we'll just assume that the conviction is good and declare that inconsistent verdicts are things to admire rather than condemn.
No, they didn't really say that last part.  But it was the basic point.
And so said state after state.
I represented a guy on appeal here in Ohio who was convicted of aggravated murder as an accomplice, but that he was not guilty of a specification saying that he was an accomplice rather than the actual killer.  (It was a lot more complicated than that, which your really couldn't tell from the court's opinion which is why I'm not bothering to link to it.)  So what, said the court.  Nobody thinks verdicts need to be consistent.  Just see Powell.
Except, you know, it turns out that some states think logical consistency is a fair request of a jury, which brings us back to the Iowa Supremes and Halstead.
Halstead was convicted of assault while committing a felony.  Except he was found not guilty of the felony.  The intermediate appellate courts in Iowa just followed Powell  and  Dunn.  Then the Iowa Supreme Court got involved.  After explaining that there are a variety of sorts of inconsistent verdicts, and that they were only looking at the kind in Dunn and Powell where the jury said the predicate act didn't occur but the crime did, the court took dead aim at the U.S. Supremes.
Before addressing the narrow issue presented in this case, it is important to note that the question of inconsistent verdicts has sometimes been characterized as not involving constitutional issues. See United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 477, 83 L. Ed. 2d 461, 469 (1984). As will be seen below, the question of the validity of an inconsistent verdict, however, can be approached only with due regard to important constitutional concepts including double jeopardy, guilt beyond a reasonable doubt, and the right to a unanimous jury verdict. At a minimum, the outcome in this case is affected by strong constitutional currents.
OK, so the Iowa Supreme Court basically begins by saying that the Justices of the US Supreme Court don't recognize a federal constitutional issue when it jumps up and bites them in the ass.
The court then does some more rooting around in what other courts have done and what scholars have said and then finally gets to its own view.  First, there's the fantasy that all inconsistent verdicts are efforts to give a break to the accused.
If all inconsistent verdicts were the result of lenity with respect to the acquittals, and rationality with respect to the convictions, the approach in Dunn and Powell would make sense. But, we think it obvious that this is not the case. At the outset, it is equally possible that an inconsistent verdict is the product of animus toward the defendant rather than lenity. See Muller, 111 Harv. L. Rev. at 798, 834. The presumption of lenity seems particularly doubtful if the jury convicts a defendant of the more serious component offense but acquits the defendant on predicate felonies. Further, aside from the animus-lenity coin, the inconsistent verdict may be a result of mistake, confusion, or compromise. See DeSacia, 469 P.2d at 377.
But if you can't buy into that with conficence, then you have to say that the verdicts aren't reliable.  And gee, it turns out that in Iowa reliability counts.
Because we do not accept the presumption of lenity in cases involving inconsistent verdicts, we place greater weight than Powell and Dunn on the lack of reliability of jury verdicts when compound inconsistency is present. The purpose of our criminal justice system is to find the truth. When a jury convicts a defendant of a compound offense, but acquits the defendant on a predicate offense, our confidence in the outcome of the trial is undermined.
And if you can't have confidence in the outcome, well, then the state probably hasn't proved guilty beyond a reasonable doubt.
In constitutional terms, a jury verdict involving compound inconsistency insults the basic due process requirement that guilt must be proved beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368, 375 (1970). When a jury returns a compound inconsistency, a legal error has occurred. There is a substantial possibility that the jury has simply made an error, engaged in compromise, or engaged in some other process that is inconsistent with the notion of guilt beyond a reasonable doubt.
That's all really good stuff.  But it can't hold a candle to the next paragraph.
Finally, we are concerned about the perceptions of the criminal justice system when inconsistent verdicts are allowed to stand. We are concerned that allowing a potentially long prison term arising from a compound felony to stand when a defendant has been found not guilty of predicate offenses will have a corrosive effect on confidence in the criminal justice system. When liberty is at stake, we do not think a shrug of the judicial shoulders is a sufficient response to an irrational conclusion. We are not playing legal horseshoes where close enough is sufficient. It is difficult to understand why we have a detailed trial procedure, where the forum is elaborate and carefully regulated, and then simply give up when the jury confounds us. See Alschuler, 56 U. Chi. L. Rev. at 154, 229-33; cf. Richard L. Lippke, The Case for Reasoned Criminal Trial Verdicts, 22 Can. J. L. & Jurisprudence 313, 318-19 (2009). It is also difficult to justify that we would afford less protection in a criminal matter than in a civil matter involving money damages. See Price, 949 A.2d at 626-30.
Maybe we should strip it down for focus.  Take out the citations.  Just look sentence by sentence at the good stuff.
We are concerned that allowing a potentially long prison term arising from a compound felony to stand when a defendant has been found not guilty of predicate offenses will have a corrosive effect on confidence in the criminal justice system. 
Court after court says the opposite.  Admitting that the court did something wrong will cause the public to lose faith.  We must pretend to be right even when we're not because otherwise the public will start to think that we aren't always right - which is true but dangerous because it's important that people have false faith in the system, and they'll never trust any institution that admits its mistakes instead of hiding them.  Recognizing that upholding a verdict that's logically unsustainable has a "corrosive effect on confidence," that's great stuff.
But it's not half as good as what comes next.
When liberty is at stake, we do not think a shrug of the judicial shoulders is a sufficient response to an irrational conclusion.
Can that just be tattooed on the forehead of every judge who deals with criminal cases?  Please?  Can someone arrange that?
OK, maybe something lighter in tone?
We are not playing legal horseshoes where close enough is sufficient.
Close enough for government work isn't close enough.  That's a lesson to remember.
And then there's the last part.  If we take the system seriously, we're obligated to be honest about it.
It is difficult to understand why we have a detailed trial procedure, where the forum is elaborate and carefully regulated, and then simply give up when the jury confounds us.
Difficult to understand?  Yep.  Most state courts don't even try.  They "shrug [their] judicial shoulders."  They play "legal horseshoes."  They pretend there are no corrosives.
Almost make you ready to pack up from Minnesota and move to Iowa.


  1. So it's not all relative, then, and repugnant verdicts are wrong?

    You should make up your mind. Don't be one of those shoulder shruggers.

    This is a great post, BTW.

  2. Admitting that the court did something wrong will cause the public to lose faith [in our criminal justice system - Mad Jack].

    In order to lose faith, the public must have faith. Many do not. I'm one of those who don't have any faith at all in the criminal justice system. I haven't had any for years. I am completely bereft, as the magistrate might pontificate from his throne.

    Any proof I might require is listed above in a somewhat random fashion by the illustrious Jeff Gamso, esq. Even if the learned folks in Iowa came to the right conclusion, they had to walk ten miles to get there when anyone could easily point at the situation and call a bullshit foul. Come on, WTF? This one is so obvious even I can see it a mile away.


    As anyone who has lived in Minnesota can tell you, having James George Janos AKA Jesse "The Body" Ventura in the governor's mansion was the best thing to happen to Minnesota in years. Many years. The place tends to attract displaced red necks and other mental midgets who don't mind sub-zero temperatures and living in cities that are as ugly as the back end of a Mexican bus. Still, these folks are quick enough to realize that none of them wants to explain just why it's okay for two guys to hug and kiss each other in public and get married for better or for worse when it isn't. That's right, it isn't okay. See? Comprende?

    Just my two cents.