UPDATES & ANALYSIS

Iowa Supreme Court 2016-17 preview: Did Iowa’s anti-slavery delegates in 1857 give criminal defendants broader rights today?

by Rox Laird | March 14, 2017

Eight years before the Civil War, drafters of the Iowa Constitution incorporated language into the Bill of Rights aimed at protecting the rights of fugitive slaves who traveled to Iowa. A convicted murderer is now asking the Iowa Supreme Court to apply that language in granting his bid for a new trial.

John David Green was convicted of second-degree murder in the strangulation death of a Sac City man in part on the strength of Green’s confession. He argues the confession should not have been used against him because he was not informed of his right to be represented by legal counsel when he was interrogated by police officers.

That argument likely would not succeed under the Sixth Amendment to the U.S. Constitution, which guarantees the right to the assistance of legal counsel “in all criminal prosecutions.” That has been read by the courts to mean the right to counsel attaches only when a criminal prosecution has been formally initiated.

Green, however, cites the Iowa Constitution’s equivalent of the Sixth Amendment, which goes further to guarantee the right to the assistance of legal counsel “in all criminal prosecutions, and in cases involving the life, or liberty of an individual.”

Green argues that phrase, added to protect the rights of fugitive slaves in the new free-soil state of Iowa, gives defendants broader rights to counsel under the state constitution.

Green cites a 1987 ruling in which the Iowa Supreme Court broadly construed Article I, Section 10 “to effectuate its purpose, which was to correct the imbalance between the position of an accused and the powerful forces of the State in a criminal prosecution.”

The challenge is where to draw the line between an investigation and a prosecution. For Sixth Amendment purposes, that is generally when a formal charge has been filed. Under Iowa’s Constitution, Green argues, it comes earlier in the process when the wheels of prosecution have been set in motion.

In his case, Green argues it was clear the “forces of the State” were arrayed against him when he was brought in for questioning after being tracked down in Florida and confronted by four Iowa law-enforcement authorities and five Florida peace officers.

The Sac County attorney secretly observed the interview from another room and fed questions to officers as they came in and out of the interview room.

Charges were not filed until after the Florida interview. But, by orchestrating the interrogation, lawyers for Green argue in a brief filed with the Court, he was “subjected to the ‘functional equivalent’ of an adversarial prosecution by his ‘expert adversary’ and thus his constitutional right to counsel had attached. As a result, any statements obtained from Green during the interrogation were obtained in violation of article I, section 10 of the Iowa Constitution and should have been suppressed.”

During oral argument in Green’s case last week, members of the Court struggled with how police and prosecutors would know when a line has been crossed into an active prosecution and they must advise a suspect of his or her right to counsel.

Justice Brent Appel: There are degrees of prosecutorial involvement. Law officers can consult with the county attorney at any time, and they do. This may have been more intense (involvement by prosecutor). To what extent did the prosecutor direct the questions?

Assistant State Appellate Defender Melinda Nye: He was in the next room; officers step out many times to consult, and then go back in to ask questions prompted by the prosecutor.

Chief Justice Mark Cady: Suppose the prosecutor stayed in Iowa and gave the interrogator very detailed questions?

Nye: It depends on the details.

Justice Edward Mansfield: How is the state going to apply this test?

Nye: The totality of the circumstances: The cops do this all the time already and make a determination.

Justice Thomas Waterman: What is the problem if we rule there is a pre-arrest right to counsel?

Assistant Iowa Attorney General Bridget Chambers: There would be many problems. This was in another state, where the state can’t appoint an attorney. The average law enforcement officer will have no way to know (whether the right to counsel has attached).

Justice Daryl Hecht: We deal with that kind of multifactor analysis in Miranda. Why not here?

Chambers: The purpose of Section 10 is a fair trial. There are other protections, constitutional and statutory. Solving crimes is a social good. Nothing in Section 10 suggests that we don’t want to solve crimes.

This is not the first time the justices have struggled with how to apply Article I, Section 10 to criminal cases. Last term, the Court was deeply divided in a drunken driving case on the question of whether the suspect had a right to consult in private with legal counsel before submitting to a sobriety test.

In that case (State v. Senn), the justices produced 123 pages in three separate opinions, which delved deeply into the history of Article I, Section 10 based on debates at the 1857 Constitutional Convention. Yet, there was no majority for a decision on the question of when the right to counsel attaches under the Iowa Constitution. By raising the issue in this appeal, Green’s goal is that one or more justices will join a majority to support his argument.

[Go to the Cases in the Pipeline page at On Brief to read the briefs in State v. Green.]

Tags: Iowa Supreme Court 2016-17 Preview