Supreme Court’s lottery ruling a lesson for Iowa law enforcement

By: Rox Laird on June 23rd, 2017

Law enforcement authorities who dilly-dally in investigating crimes face the prospect of losing at trial because the statute of limitations clock has run out, the Iowa Supreme ruled Friday.

The Court threw out the 2015 conviction of Eddie Tipton, a former Multistate Lottery Association security expert who used his knowledge of random-selection computer coding to rig a drawing and then tried to collect a $16.5 million winning Hot Lotto jackpot.

The majority opinion was written by Justice Brent Appel joined by all justices except Edward Mansfield, who disagreed with one part of the 70-page decision while concurring with the rest.

Friday’s decision comes too late for Tipton, who is scheduled to plead guilty to a similar lottery-rigging charge on June 29. But it is a cautionary tale for law-enforcement officials, prosecutors and trial judges to consider in future cases.

A Polk County jury convicted Tipton of two felonies: fraudulently tampering with lottery equipment and fraudulently attempting to redeem a lottery ticket.

Tipton challenged his conviction on a number of grounds, all of which were rejected by the Supreme Court. But Friday’s decision focused most extensively on the issue of the statute of limitations, which gives the government a deadline by which criminal prosecutions must begin.

Quoting earlier court decisions, Appel said these statutory deadlines are “designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time.” Yet they also “have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.”

The trial judge dismissed Tipton’s contention that the state missed the three-year statute of limitations in his case, citing exceptions in the state criminal code for crimes that amount to “continuing offenses,” and a specific exemption for fraud.

The Supreme Court disagreed, however.

Relying on earlier Iowa decisions, the Court said there is nothing explicit in state law that says fraudulent “uttering, passing and redeeming, and tampering with intent to influence” are continuing offenses. “Unlike classic continuing offenses such as kidnapping, bigamy, or possession,” Appel wrote, “the evil sought to be prohibited does not inherently continue on a daily basis” with those crimes.

One key question for setting the statute-of-limitations clock: At what point did the state discover, or should it have discovered, that Tipton tampering with a lottery computers to rig the drawing? The answer is whether the state exercised due diligence in its investigation. If the answer is yes, the state would have been entitled to a one-year extension of the statute of limitations.

The Court, however, said the state failed to show that it showed the necessary due diligence in the Tipton investigation, taking more than three years pursuing leads that could easily have been achieved earlier.

“An effort to unlawfully obtain millions of dollars in lottery winnings is a serious crime,” Appel wrote. “Multistate lottery funds provide a significant source of revenue for the participating states. Such revenues are dependent upon the integrity of the lottery program.” And the Legislature has emphasized the need for the lottery to operate with integrity.

“Finally,” he wrote, “there can be no question of the moral culpability of an offender attempting to swindle the lottery. In its investigation, the State must act with due diligence in light of the seriousness of the crime in order to avail itself of the one-year extension of the statute of limitations.”


Iowa Supreme Court oral argument recap: Justices see a problem with jury selection, but no easy solution

By: Rox Laird on February 14th, 2017

It’s not often a lawyer can predict the outcome of a case based on an appellate court oral argument. But more than one Iowa Supreme Court justice readily acknowledged Tuesday that Des Moines attorney Gary Dickey exposed a constitutional problem with Iowa’s process for selecting juries.

The problem was illustrated in a Black Hawk County criminal case involving a black defendant where the pool of 56 potential jurors included just one African-American.

Based on an Iowa Supreme Court’s 1992 precedent in State v. Jones, that is an acceptable ratio for a community whose population includes 9 percent African-Americans. (Go to our earlier post for more background on State v. Plain.)

As a result, Dickey argued before the court, under that 1992 precedent, it is statistically possible – in Black Hawk County or virtually anywhere else in Iowa for that matter – for a jury pool with zero blacks to meet the Sixth Amendment requirement that juries reflect a cross-section of the community.

Justice Edward Mansfield posed the first question: I agree, you have identified a problem. The question is what standard should be applied?

Dickey: We specifically ask this Court to eliminate the absolute racial disparity standard [adopted in Jones]. We would say that comparative disparity or standard deviation would be most appropriate.

Justice Daryl Hecht: How much data on the racial disparity of jury pools does the trial court need?

Dickey: The more the better. Look over time to determine procedures that are systemically a problem.

Justice David Wiggins: Do you look at the pool over a year, or each pool as assembled for each defendant?

Dickey: You can do both, case by case and over time.

Justice Bruce Zager: Nobody disagrees with the proposition that we have a problem with the disparity of jury panels. If we say district courts must use another test, what do we do in the intervening two or three years while we come up with a reasonable solution?

Dickey: Overrule Jones and explain why other analyses are relevant. As for the larger policy issue, maybe we have a real problem with jury venires and we will have to throw out and retry cases. It is not an excuse to abandon constitutional rights because there is not an easy fix.

Assistant Attorney General Louis Sloven, arguing the case for the State: I don’t know how we can overrule Jones. The Court should avoid the constitutional question.

Mansfield: Eventually we’re going to overrule Jones . . . maybe (adding the “maybe” after his statement prompted some courtroom laughter). It strikes me as statistically flawed. If so, why don’t we go to a better system?

Sloven: The result in Black Hawk County was statistically acceptable.

Wiggins: Looked at over time?

Sloven: Looked at over time.

Wiggins: We’ve had this problem for a long time. Isn’t it incumbent on the state to look into it?  Why not overrule Jones as a good start?

Sloven: Jones makes sense for a single jury pool.

Mansfield: Shouldn’t we go to something more sound?

Sloven: It is not enough to show numerical disparity in a single jury pool. A systematic problem must be shown. Something the state is doing that produces disparity.

Zager: We have to work harder to get more people [representing minority groups] involved in juries; that is the appropriate response.

Sloven: I share the concern. It’s an important problem to address.

It’s not clear whether the Court will overrule its precedent in this case. It was clear from the questions and comments from the justices, however, that Iowa’s process of selection juries is ripe for review.


Iowa Supreme Court oral argument recap: Should courts keep a lid on the box?

By: Rox Laird on February 14th, 2017

Lawyers arguing a case before the Iowa Supreme Court Tuesday presented sharply contrasting views of justice: One view is that denying an innocent defendant the right to appeal is a miscarriage of justice; the other view is that the interest of justice in finality is not served by opening the door to appeals on specious claims of innocence.

The appeal was brought by Jacob Lee Schmidt who argues that he should have a hearing to withdraw his guilty plea for sexual abuse 11 years ago because the complaining witness has since recanted his testimony. (See our earlier post for more background on this appeal.)

All seven justices peppered the lawyers Tuesday with questions suggesting they struggle with the competing views of justice presented in this case.

Justice Thomas Waterman initiated the questioning by noting that recantations – where witnesses later say they testified falsely – are viewed with suspicion, and often happen after the accused leaves prison and within families in sex abuse cases.

Justice Daryl Hecht: Is a recantation newly discovered evidence?

Defendant’s counsel Martha Lucey, assistant appellate defender in the State Appellate Defender’s Office, said in this case it is a claim of actual innocence: “I didn’t do it.”

Justice Edward Mansfield: When there is a guilty plea, there is no trial. If you win the right to post-conviction relief, you have a trial 11 years later. You open the door to something that happens 11 years later. The State has to go back to prove its case. Doesn’t that open the door kind of wide?

Justice David Wiggins: At trial, the government must prove guilt beyond a reasonable doubt. Here, the only evidence is recanted testimony. How does the State make its case if there is no complaining witness?

Waterman: With a guilty plea, the State’s work is done.

Lucey: If the person is factually innocent, that is a miscarriage of justice.

Justice Bruce Zager: I disagree. Recantation is not the same as actual innocence. Recantation is really unique. I don’t know how you get to actual innocence with a recantation.

Justice Brent Appel: People plead guilty all the time due to fear of severe sanctions, and later DNA shows they are innocent. That’s a plus on your side. On the negative side, recantations are rife. The real question is what gatekeeping role does this court have in post-conviction relief? Always? Sometimes? Never?

Lucey: Not never. When you have newly discovered evidence, require a hearing. Either the evidence presented in a post-conviction relief proceeding meets the standard of proof or it does not.

Sheryl Soich, the assistant attorney general arguing for the State, said the Court should consider that a guilty plea puts a lid on the box. There is no reopening the case.

Appel: You really don’t want to go there, do you? It is hard for me to swallow that someone with actual innocence doesn’t get a chance to prove that in court.

Soich: Finality in criminal prosecutions serves the interest of justice.

Wiggins: In Illinois, people are being let out of prison left and right. What’s wrong with the State allowing them to make their case?

Soich: Not when they waived the right to challenge that evidence in the first place.

Chief Justice Mark Cady: We’re talking about this underlying sense of finality having a strong sense of justice. Don’t you think we have learned something about finality [in light of recent cases using DNA evidence to prove actual innocence]?

Whether the right balance can be struck between finality of justice versus a miscarriage of justice, Lucey told the Court, all she is asking for is a hearing for her client to plead his case in court that he is innocent.


Iowa Supreme Court oral argument recap: Justices go hunting for the DNR’s legislative authority

By: Rox Laird on November 16th, 2016

Justices of the Iowa Supreme Court engaged in a lively exchange with lawyers Wednesday in a case involving the extent of the Iowa Department of Natural Resources’ authority to protect deer from Chronic Wasting Disease (CWD).

Tom and Rhonda Brakke closed their Davis County whitetail deer hunting preserve after deer harvested there tested positive for CWD. But they argue the DNR exceeded its statutory authority in subsequently ordering a quarantine and that a fence be maintained around the 330-acre property for five years. The Brakkes also argue the state’s action amounted to an unconstitutional taking without just compensation.

Following are excerpts from the oral argument.

Assistant Iowa Attorney General David Dorff said that while the trial court ruled that state law provides for quarantine of animals but not of real property, this quarantine is proper when the statute is read in the context of its “purpose and practical considerations.”

Justice Thomas Waterman: How much interpretive deference should be given to the DNR to administer the statute?

Dorff: A lot of deference.

Justice Brent Appel: What is in the statute that says we should give that deference?

Dorff: Deer hunting preserves are a highly regulated industry, with requirements for registration, record-keeping and disease control.

Appel: The remedy you are seeking seems to me quite muscular. As I read the statute, I’m inclined not to go with your position. It is a very strong regulatory position.

Dorff: It is a strong position because the science says the disease can persist in the environment for a long time, and the legislative intent is to prevent the spread of the disease. The muscle has to be there to protect the deer.

Justice David Wiggins: Isn’t it for the Legislature to put in the muscle? Did the Legislature intend for the DNR to have that authority in the first place?

Justice Edward Mansfield: Even if we find that the statute authorizes quarantine on land, the DNR can’t issue an arbitrary and capricious order. There seems to be controversy over the science, and you need a scientific basis for the order.

Turning to the constitutional takings question, Justice Appel said the government must have a legitimate interest for regulation. You can regulate, but you can’t clobber. There is a state interest in protecting deer from disease, but you can’t pull out a giant cannon to blast a fly away.

The first question for the Brakkes’ lawyer, Des Moines attorney Rebecca Brommel, came from Chief Justice Mark Cady: Did the DNR previously have the authority to enter the order that a fence be maintained to prevent deer from entering the former preserve, and when did that authority end?

Brommel: The state’s jurisdiction ended when all deer were removed and the preserve was closed.

Cady: So, a unilateral act by a property owner can destroy the authority of the DNR?

Justice Bruce Zager: The fencing is a huge part of this, to keep other deer from coming in to the contaminated preserve. It seems like a natural, rational way of looking at this.

Brommel: The state statute provides for the quarantine of diseased whitetail deer in preserves. It made a choice: Get rid of animals but do not be concerned about keeping other animals off the land.

Justice Thomas Waterman: The DNR had a plan, which included fencing. It makes sense that the Legislature gave the DNR the latitude to install that plan.

Brommel: Yes, but the plan ended when the preserve closed and all deer were removed.

Waterman: Were the land owners free to remove the fence then?

Brommel: Once it was no longer a hunting preserve, they were free to remove the fence.


Iowa Supreme Court argument recap: Justices keep cards close to the vest in immigration case

By: Rox Laird on October 20th, 2016

It is hard to predict where the Iowa Supreme Court might go with an immigration case argued Thursday based on the questions directed at the opposing lawyers.

Martha Martinez, who came to the United States at the age of 11, is being tried in Muscatine County on felony charges of forgery and identity theft. She argues that the state charges against her should be thrown out because federal immigration law preempts the state criminal laws used in her case. (See our earlier post for more background on Martinez’s appeal.)

Only Justices Edward Mansfield and Brent Appel engaged in significant dialogue with Martinez’s counsel, Philip Mears of Iowa City, and Assistant Attorney General Darryl Mullins representing the State of Iowa. And those exchanges ventured little beyond the legal arguments covered by the briefs.

Justice Mansfield, for example, probed Mears on the question of why a U.S. citizen could be prosecuted for violating Iowa’s forgery and identity theft laws but not an undocumented immigrant. Mansfield wondered: Does Iowa not have a duty to enforce its laws for citizens and noncitizens alike?

Mears responded that there are other instances where federal law preempts states from enforcing state law against some people but not others. He cited an example of federal preemption in the case of banks that are regulated by the federal government versus those regulated by the states.

Justice Appel repeatedly sought to drill into the U.S. Supreme Court’s 2012 decision in Arizona vs. United States in which the Court struck down Arizona state criminal statutes aimed at curbing illegal immigration.

Appel wanted to know where to draw the line between enforcement of federal versus state laws. He cited the example of how federal prosecutors have discretion to enforce federal drug crimes and states have discretion to prosecute state drug crimes. He asked Mears: How is your case different?

Mears’ response: The U.S. Supreme Court said in the Arizona case there is something special reserved to the federal government with respect to federal immigration law. The Supreme Court in that case said just working without proper documentation cannot be criminalized by the state.

Justice Thomas Waterman asked Mears whether any court has ruled that a state criminal law is preempted in the way Martinez urges the Iowa Court to rule?

The U.S. Court of Appeals for the Ninth Circuit has done that in a case having to do with driver’s licenses, Mears responded.

At that point, Waterman said he questions whether President Barack Obama’s creation of the “Deferred Action for Childhood Arrivals” by executive order would meet that test. “I am troubled by the notion that the president by executive order could preempt state law,” he said.

In the end, the only way to know for sure what the justices think of Martinez’s arguments will come when the court issues a ruling during its 2016-17 term.


Oral Argument recap: A shorthanded Iowa Supreme Court seems skeptical in Water Works case

By: Rox Laird on September 14th, 2016

If you were a lawyer for the Des Moines Water Works, you might have wondered what happened to your case when two of seven justices were not on the bench for Wednesday’s oral argument.

The fact that Justices David Wiggins and Daryl Hecht were absent signaled they had “recused” themselves, meaning they will not participate in a Water Works decision. The justices do not announce when, or why, they sit out a case. They just don’t participate, leaving the parties and the public to speculate about why.

In any case, it is not a good omen for the Water Works.

The utility already faces an uphill battle to get the Iowa Supreme Court to expose rural Iowa drainage districts to pollution lawsuits. That would depart from a century of precedent, and it would be even less likely with a diminished court.

Wednesday’s proceeding was unusual, as well, because the court was not hearing a full-blown argument in the Water Works lawsuit against drainage districts in three northern Iowa counties for contributing to pollution of the city’s drinking water source. Rather, that lawsuit is being heard in federal court in Sioux City, which has asked the Iowa Court to rule on questions of Iowa law raised in the case.

The questions boil down to this: Can the drainage districts that were created by the Iowa Legislature to drain excess water from agricultural lands be sued for monetary damages caused by pollution that flows from those drainage systems? (For more background on this case, see our earlier post.)

The answer is no, according to lawyers for the drainage districts, citing Iowa Supreme Court rulings dating back to 1904 consistently holding that drainage districts are exempt from damages.

That triggered a lively back and forth between the justices and attorneys:

Justice Thomas Waterman: How does the Water Works propose the court get around those precedents?

John Lande, counsel for the utility: The Court has the power to “re-examine the rationale behind precedent, and there has never been an issue of public health concerns as those raised in this case.”

Waterman: Liability flows from control. What control do the drainage districts have over farming practices?

Lande: They have such control under the Home Rule amendments to the Iowa Constitution that expanded local government powers.

. . . .

Justice Edward Mansfield: If you win this case, what is the remedy?

Lande: “Abatement of the nuisance.”

Mansfield: But what specifically does that mean?

Lande: A number of remedies are possible, but eliminating draining agricultural lands is not among them. “Pollution does not have to be part of drainage of water from the land.”

. . . .

Waterman: How would the drainage districts pay for a money judgment? Could they tax land owners? What is the authority to do that?

Lande: There is an authority to levy an assessment, which would limit a land owner’s exposure to a percentage of harm attributed to that owner.

Waterman: Isn’t there a least-cost alternative? Wouldn’t it be cheaper to deal with the problem at the Water Works treatment plant rather than altering farming practices?

Lande: The Water Works is not suggesting that drainage districts rip out drainage tiles. “Our position: It is important to move water off the land, but it does not have to be done in a way that pollutes the drinking water of 500,000 Iowans.”

 . . . . 

Michael Reck, attorney for the drainage districts, said the Court has already answered every one of the federal’s court’s questions in rulings dating back to near the turn of the last century.

Justice Brent Appel: Are the Court’s precedents from a century ago on drainage districts’ liability exposure still valid today? “Those decisions were issued in the heyday of sovereign immunity. Today we have a different view of tort liability.” Maybe immunity was right in 1900, but “tell us why it is right today.”

Reck: It is still right today. And there are good reasons why the Court preserves precedents that have long been relied upon. If change is called for, it should come from the Legislature, not drainage districts that have no powers beyond carrying out the will of the Legislature to remove water from farmland.

Judging from the justices’ questions, there does not appear to be a large appetite for changing the Court’s precedent on drainage districts’ immunity. At least not as this case was presented.

Even if that is the outcome, however, the Water Works lawsuit would still proceed in federal court on federal questions. That trial is scheduled for next June in Sioux City.


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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.



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