Amicus Curiae Brief — Iowa v. Tovar

| OFFICE OF THL CI

In The

Supreme Court of the Anited States

¢

STATE OF IOWA,

Petitioner,

v.

FELIPE EDGARDO TOVAR,

Respondent.

o

On Writ Of Certiorari

Yo The Supreme Court Of Iowa

¢

BRIEF AMICUS CURIAE OF THE NATIONAL

DISTRICT ATTORNEYS ASSOCIATION

IN SUPPORT OF THE PETITIONER

¢

STEPHANOS BIBAS

Counsel of Record

Associate Professor

UNIVERSITY OF IOWA COLLEGE OF LAW

Iowa City, lowa 52242

(319) 384-4569

Of Counsel:

THE HONORABLE ROBERT P. MCCULLOCH

Prosecuting Attorney,

St. Louis County, MO

President, National District Attorneys

Association

JAMES D. POLLEY, IV

NATIONAL DISTRICT ATTORNEYS

ASSOCIATION

99 Canal Center Plaza

Suite 510

Alexandria, VA 22314

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The judge at a plea colloquy advised a misdemeanor

defendant of the drunk-driving charge, its elements, its

penalties, and his right to an attorney. The non-indigent

pro se defendant chose not to retain a lawyer, waived his

right to counsel, and admitted every element of the of-

fense. Years later, can the defendant use the Sixth

Amendment to collaterally attack the plea colloquy for

failure to offer additional advice on precisely how a lawyer

might have helped him?

‘i

TABLE OF CONTENTS

Page

QUESTION PRESENTED.............cccsceseseseeeeeeeeeeeeeees i

TABLE OF AUTHORITIES ............ccccccseeeeeeeeeeeeeeeeees ili

INTEREST OF AMICUS CURIAE ........ccccceeeeceeeeeeees 1

SUMMARY OF ARGUMENT..............::ccccseeeeeeeeeeeeeees 1

ARGU MEIIE occccccccccccccoccossscccscscccsssssnsssneocssanmneonannnnes 2

THE IOWA COURT’S DECISION UNDERMINES

RECIDIVIST STATUTES AND THE FINALITY

OF GUILTY PLEAS AND ERRONEOUSLY

SHIFTS THE BURDEN OF PROOF ON COL-

LATERAL ATTACK TO THE PROSECUTION ..... 2

A. Many Misdemeanor Defendants Have En-

tered Guilty Pleas Without the Assistance of

Counsel. Undermining the Finality of These

Guilty Pleas Impairs Enforcement of Recidi-

vist Statutes for Drunk Driving, Domestic

Violence, and Other Crimes. ...............csscseseeees 2

B. The Iowa Court Erroneously Placed the

Burden on the Prosecution to Prove That Re-

spondent, Who Had Expressly Declined the

Assistance of Counsel, Knowingly Waived the

Right to Counsel When He Pleaded Guilty to

OWI fin 1906. .cccccccccccccscscccscccscccsccssocssnsesnsssnans 9

CONCLUSION ............ccccccccssscscccrscscessscessenensesssssssess 15

TABLE OF AUTHORITIES

Page

CASES

Brady v. United States, 397 U.S. 742 (1970) ............ccccce000 7

Burgett v. Texas, 389 U.S. 109 (1967) ............ccccccccceeeeeeeeees 12

Carnley v. Cochran, 369 U.S. 506 (1962)...............c000 10, 14

City of Indianapolis v. Edmond, 531 U.S. 32 (2000).......... 3

Craig v. Boren, 429 U.S. 190 (1976) ...........ccccccssceeesecceeeeeees 3

Custis v. United States, 511 U.S. 485 (1994)............... 12, 14

Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001).................. 2

Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179

Le ee 5

Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166

EE 14

Moore v. Michigan, 355 U.S. 155 (1957)............ 9, 11, 12, 14

Nichols v. United States, 511 U.S. 738 (1994)............... 4,10

Parke v. Raley, 506 U.S. 20 (1992)............cccccceceseeeeeeeees 5,14

Rummel v. Estelle, 445 U.S. 263 (1980).............ccccccccceeeeees 14

Schindler v. Clerk of Circuit Court, 715 F.2d 341

(7th Cir. 1983), cert. denied, 465 U.S. 1068 (1984)......... 3

State v. Garrity, 708 So.2d 1096 (La. App. 1998)............... 5

State v. Hamilton, 725 P.2d 590 (N.M. Ct. App.

CC —E eT 10

State v. Novak, 318 N.W.2d 364 (Wis. 1982) ...................... 4

Teske v. State, 507 So.2d 569 (Ala. Cr. App. 1987) ............ 10

United States v. Addonizio, 442 U.S. 178 (1979)............... 14

United States v. Bethurum, 213 F. Supp.2d 679

iv

TABLE OF AUTHORITIES — Continued

Page

United States v. Edwards, 35 M.J. 351 (C.M.A.

TSS 7

United States v. Hartsock, 2003 WL 22330976 (1st

Gin, Gat, BB, BBD cccccnssscsscscsssesesssnsssssesensssenssenssesesess 10, 13

United States v. Smith, 171 F.3d 617 (8th Cir. 1999)......... 5

United States ex rel. Ackerman v. Russell, 388 F.2d

SSE 1l

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

Iowa Code § 321J.2(2)a) (1999) .............ccccceseseereeenenseeeesenes 4

Iowa Code § 321d.2(2)(b) (1999) ...........cccccscsceeseceseeeeeeeeeenes 4

OO br 4

BB URBAG. 6 GEE wcceccccccccsescsccsesccscresescnsssessssssssnsssssseseses 13

OTHER AUTHORITIES

ALCOHOLICS ANONYMOUS, TWELVE STEPS AND

\0ll (yl 7

Stephanos_ Bibas, Harmonizing Substantive-

Criminal-Law Values and Criminal Procedure:

The Case of Alford and Nolo Contendere Pleas, 88

Compan, E. TT. BGR Cea eccccscccccsccesescsssssccsssssccsscesesss 7

W. Larry Campbell, An Alternative for Drunk

Drivers, 10 ADDICTION & RECOVERY 46 (1990).............-.. 8

Huey-tsyh Chen et al., Evaluating the Effectiveness

of a Court Sponsored Abuser Treatment Program,

4 J. Pand. VaOLRCE SOD (1969) .....ccccccccccccesccccecsseccccessccee 8

v

TABLE OF AUTHORITIES - Continued

Page

THOMAS G. DIBBLE, A GUIDE TO CouRT RECORDS

MANAGEMENT (Nat'l Center for State Courts

Stephen E. Doyne et al., Custody Disputes Involv-

ing Domestic Violence: Making Children’s Needs

a Priority, 50(2) JUVENILE & Famity CT. J. 1

(1999), reprinted in NANCY K.D. LEMON, DoMEs-

TIC VIOLENCE LAW S40 (BOO1)..........0000c..ccccccscssccccccessscccess 4

Jeffrey Edleson & Maryann Syers, The Relative

Effectiveness of Group Treatments for Men Who

Batter, Soc. WoRK Res. & ABSTRACTS, June 1990,

John M. Greacen, An Administrator’s Perspective:

The Impact of Self-Represented Litigants on Trial

Courts — Testing Our Stereotypes Against Real

Data, JUDGES’ J., Summer 2002, at 32 .0..........cccccceceeeeeee 5

L. Kevin Hamberger & James E. Hastings, Skills

Training for Treatment of Spouse Abusers: An

Outcome Study, 3 J. FAM. VIOLENCE 121 (1988)............. 8

CAROLINE WOLF HARLOW, DEFENSE COUNSEL IN

CRIMINAL CASES (Bureau of Justice Statistics,

Harvey J. Hoffman, Healing Drunk Drivers: Michi-

gan’s OUIL/Sobriety Drug Courts, MICH. Bar J.,

RE 6

1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW

EE Te LC a 14

Pam Louwagie, Court-hearing Transcripts No

Longer Mandatory, MINNEAPOLIS-ST. PAUL STAR-

TRIBUNE, at 5B (Nov. 4, 20038) ..............cccccccccsssceeeeeeeceeeee ll

vi

TABLE OF AUTHORITIES -— Continued

Christopher M. Murphy et al., Coordinated Com-

munity Intervention for Domestic Abusers: Inter-

vention System Involvement and Criminal

Recidivism, 13 J. FAM. VIOLENCE 263 (1998).............0+-++ 8

NaTL CENTER FOR STATE COURTS, SMALL CLAIMS

AND TRAFFIC COURTS: CASE MANAGEMENT PROCE-

DURES, CASE CHARACTERISTICS, AND OUTCOMES IN

12 URBAN JURISDICTIONS (1992)..............ccceeeeeesneeeeeeevenees 11

James L. Nichols, Treatment Versus Deterrence, 14

ALCOHOL HEALTH & RES. WORLD 44 (1990)................. 6,8

C. Allen Parker, Proposed Requirements for Waiver

of the Sixth Amendment Right to Counsel, 82

COLUM. L. REV. 363 (1962)................ccssrscrsssersserereersesees 10

Kalyani Robbins, Note, No-Drop Prosecution of

Domestic Violence: Just Good Policy, or Equal

Protection Mandate?, 52 STAN. L. REV. 205 (1999)......... 6

2 DavID ROSSMAN, CRIMINAL LAW ADVOCACY: GUILTY

Ercan 13

Scott County, Iowa, Community Jail and Alterna-

tives Phase One Study: Section 5: Scott County

Prosecutorial and Judicial Trends (Nov. 15, 2001)......... 4

Reva B. Siegel, “The Rule of Love”: Wife Beating as

Prerogative and Privacy, 105 YALE LJ. 2117

Eee 3

DONALD S. Skupsky & JOHN C. MONTANA, LAW,

RECORDS AND INFORMATION MANAGEMENT (1994).......... 1l

John M. Stanoch, Working with Pro Se Litigants:

The Minnesota Experience, 28 WM. MITCHELL L.

TELECON 5

ee

Vii

TABLE OF AUTHORITIES — Continued

Richard M. Tolman & Arlene Weisz, Coordinated

Community Intervention for Domestic Violence:

The Effects of Arrest and Prosecution on Recidi-

vism of Woman Abuse Perpetrators, 41 CRIME &

I Ge Ci ccercccccsasesssscsesssscscescessselipeeeseanesees scocese @

U.S. DEpP’T OF JUSTICE, BUREAU OF JUSTICE STATIS-

TICS, SOURCEBOOK OF CRIMINAL JUSTICE STATIS-

ES a ee AE an a 3,4

U.S. SENTENCING GUIDELINES MANUAL (2001)................... 7

LENORE E. WALKER, THE BATTERED WOMAN (1979) ........... 6

Jiang Yu & William R. Williford, Drunk-driving

Recidivism: Predicting Factors from Arrest Con-

text and Case Disposition, 56 J. STUD. ON ALCO-

Joan Zorza, Women Battering: High Costs and the

State of the Law, CLEARINGHOUSE REV. special

issue 383 (1994), reprinted in Nancy K_D.

LEMON, DOMESTIC VIOLENCE LAW 11 (2001)............. —

1

INTEREST OF AMICUS CURIAE'

The National District Attorneys Association (NDAA) is

a nonprofit corporation and the sole national membership

organization representing local prosecuting attorneys in

the United States. Since its founding in 1950, NDAA’s

education and training programs, publications, and

amicus curiae briefs have carried out its guiding purpose

of serving as “the Voice of America’s Prosecutors and to

Support Their Efforts to Protect the Rights and Safety of

the People.” Local prosecutors handle the overwhelming

majority of criminal prosecutions in this country. The

NDAA and its members have a compelling interest in the

outcome of this case because of the large practical impact

it will have on the timeliness and finality of guilty pleas

and the enforcement of recidivist statutes across the

nation.

¢

SUMMARY OF ARGUMENT

The Iowa Supreme Court’s and the Ninth Circuit’s

novel reading of the Sixth Amendment, in addition to

being legally wrong for the reasons set forth by Petitioner,

suffers from two grave practical flaws. First, it under-

mines many recidivist statutes of great importance,

particularly statutes targeted at drunk driving and

* The parties have consented to the filing of this brief. Assistant

Attorney General Bruce Kempkes of the lowa Department of Justice,

counsel for Petitioner, contributed in part to the writing of this brief. No

person or entity, other than amicus curiae, its members, or its counsel

made a monetary contribution to the preparation or submission of this

brief.

2

domestic violence. This result hinders the incapacitation,

deterrence, and possibly rehabilitation of these offenders.

Second, the ruling below reverses the burden of proof,

which as this Court has recognized requires defendants to

prove that their waivers of counsel were unknowing or

involuntary. The ruling below, in contrast, requires prose-

cutors to bear the often impossible burden of searching for

transcripts of misdemeanor plea colloquies that may never

have been made or have long since been destroyed. This

result unsettles and upsets countless guilty pleas that

were entered years ago, disrupting finality and granting

recidivists a windfall of lighter sentences.

¢

ARGUMENT

THE IOWA COURT’S DECISION UNDERMINES

RECIDIVIST STATUTES AND THE FINALITY OF

GUILTY PLEAS AND ERRONEOUSLY SHIFTS

THE BURDEN OF PROOF ON COLLATERAL

ATTACK TO THE PROSECUTION.

A. Many Misdemeanor Defendants Have Entered

Guilty Pleas Without the Assistance of Coun-

sel. Undermining the Finality of These Guilty

Pleas Impairs Enforcement of Recidivist

Statutes for Drunk Driving, Domestic Vio-

lence, and Other Crimes.

Although frequently classified as misdemeanors,

drunk driving and domestic violence implicate serious

public problems and important public policies. In the last

fifty years, society and the courts have witnessed an

explosion of drunk driving cases. Drunk driving is “an

urgent, nationwide problem of staggering proportion.”

Dalton v. Ashcroft, 257 F.3d 200, 208 (2d Cir. 2001). See

3

~

City of Indianapolis v. Edmond, 531 U.S. 32, 39 (2000);

Craig v. Boren, 429 U.S. 190, 225 (1976) (Rehnquist, J.,

dissenting); Schindler v. Clerk of Circuit Court, 715 F.2d

341, 346 n.8 (7th Cir. 1983) (referring to Pennsylvania

report that drunk driving “has become perhaps one of the

most dangerous and costly forms of criminal activity”),

cert. denied, 465 U.S. 1068 (1984). Drunk driving all too

frequently results in disaster and death. See U.S. DEP’T OF -

JUSTICE, BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF

CRIMINAL JUSTICE STATISTICS 2001, at tbl. 3.106 (2002)

(17,448 people died in alcohol-related motor vehicle

crashes in 2001). To curb this threat, states have enacted

legislation providing greater punishment for repeat drunk

drivers.

Like drunk driving, the battering of women all too

frequently results in disaster. It is “the single largest

cause of injury to women in the United States.” Reva B.

Siegel, “The Rule of Love”: Wife Beating as Prerogative and

Privacy, 105 YALE L.J. 2117, 2118 (1996) (internal quota-

tion marks omitted). Four million women are beaten in the

United States annually. Joan Zorza, Women Battering:

High Costs and the State of the Law, CLEARINGHOUSE REV.

special issue 383 (1994), reprinted in NANCY K.D. LEMON,

DOMESTIC VIOLENCE LAW 11, 15 (2001). “The injuries that

all battered women receive are at least as severe as those

suffered in 90 percent of violent felonies, although the

overwhelming number of domestic-violence injuries is

considered to be only misdemeanors in most states.” Jd.

More than thirty percent of women killed — three women

per day — are murdered by their husbands, and women

murdered by intimate partners frequently experience

brutal deaths after years of violence. Jd. at 16. Children

4

who witness battering suffer from fear, anxiety, night-

mares, and behavioral problems. Stephen E. Doyne et al.,

Custody Disputes Involving Domestic Violence: Making

Children’s Needs a Priority, 50(2) JUVENILE & FAMILY CT.

J. 1 (1999), reprinted in Nancy K.D. LEMON, DOMESTIC

VIOLENCE LAW 340, 341-42 (2001). To fight this pattern of

violence, states have enacted laws that increase punish-

ment for repeat domestic abusers.

Drunk driving and domestic violence are classified

as misdemeanors in many states. See, e.g., Iowa Code

§ 321J.2(2)(a), (b) (OWI, first and second offenses), § 708.2A

(desnestic abuse assault) (1999). Most of these cases,

particularly those involving first-time drunk drivers, are

resolved by guilty pleas. State v. Novak, 318 N.W.2d 364,

369 (Wis. 1982); see Scott County, Iowa, Scott County

Community Jail and Alternatives Phase One Study:

Section 5: Scott County Prosecutorial and Judicial Trends,

at 5.9 (Nov. 15, 2001), available on-line at http://www.

scottcountyiowa.com/cjaac/documents.html (last visited

Nov. 10, 2003) (reporting that of the first- and second-

offense OWI misdemeanor cases in the years 1994 to 2001,

between 545 and 864 were resolved by guilty pleas each

year, compared with 10 or fewer each year that were

resolved by trial); see also U.S. DEP’T OF JUSTICE, BUREAU

OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE

STATISTICS 2001, at 452 tbl. 5.55 (2002) (reporting that

most felony defendants who were convicted of felonies or

misdemeanors in the nation’s 75 largest urban counties in

1998 were convicted by plea rather than trial).

A substantial number of those guilty pleas were, like

Respondent's, made without the assistance of counsel. See,

e.g., Nichols v. United States, 511 U.S. 738, 741 (1994)

(defendant entered pro se guilty plea to misdemeanor OWI

_——- — =

eet an Oo a PE

5

charge); United States v. Smith, 171 F.3d 617, 619 (8th Cir.

1999) (defendant entered pro se guilty plea to simple

misdemeanor assault); State v. Garrity, 708 So.2d 1096,

1097 (La. App. 1998) (defendant entered pro se guilty plea

to misdemeanor OWI charge); CAROLINE WOLF HARLOW,

DEFENSE COUNSEL IN CRIMINAL CASES 1, 7 tbl. 14 (Bureau

of Justice Statistics, Nov. 2000) (nearly 30% of inmates

accused of public order offenses in the nation’s seventy-five

largest counties report self-representation); see also John

M. Greacen, An Administrator’s Perspective: The Impact of

Self-Represented Litigants on Trial Courts -— Testing Our

Stereotypes Against Real Data, JUDGES’ J., Summer 2002,

at 32, 32 (“By now, everyone in the judicial branch in every

state knows that we are experiencing an explosion of

unrepresented persons appearing in the courts of general

jurisdiction of this country”); John M. Stanoch, Working

with Pro Se Litigants: The Minnesota Experience, 24 WM.

MITCHELL L. REV. 297, 297 (1998) (“Across America, there

has been a recent increase in the number of pro se ...

litigants in the federal and state court systems”).

Under the decision below, every one of those guilty

pleas is at risk of being overturned whenever the defen-

dant comes into court as a repeat offender. Upsetting these

convictions will undermine recidivist statutes’ aims of

deterring and incapacitating dangerous repeat offenders,

leading to more drunk-driving and domestic-violence

deaths and injuries. See generally Ewing v. California, 538

U.S. 11, __, 123 S. Ct. 1179, 1188 (2003) (recidivist statutes

serve both to incapacitate and to deter); Parke v. Raley,

506 U.S. 20, 26 (1992) (“Statutes that punish recidivists

more severely than first offenders have a long tradition in

this country that dates back to colonial times”). Sentencing

courts would be forced to ignore many recidivists’ earlier

6

convictions. This result would under-punish and fail to

deter or incapacitate dangerous recidivists.

Drunk drivers and wife beaters are usually not one-

time offenders, but rather alcoholics or chronic abusers.

Harvey J. Hoffman, Healing Drunk Drivers: Michigan’s

OUIL/ Sobriety Drug Courts, MICH. BAR J., Jan. 2003, at

28, 30 (“Not surprisingly, alcoholic drivers offend over and

over”); James L. Nichols, Treatment Versus Deterrence, 14

ALCOHOL HEALTH & RES. WORLD 44 (1990); see also

LENORE E. WALKER, THE BATTERED WOMAN 55-70 (1979)

(dee«ribing domestic violence as a cycle of tension-

building, battering, and reconciliation that repeats over

prolonged periods). A plea of guilty to either offense can

put a defendant on the road to rehabilitation and take him

permanently away from the criminal justice system.

Similarly, a prosecution and guilty plea may deter offend-

ers from engaging in their conduct again. Jeffrey Edleson

& Maryann Syers, The Relative Effectiveness of Group

Treatments for Men Who Batter, Soc. WORK RES. & AB-

STRACTS, June 1990, at 10 (finding that court-ordered

treatment is effective in reducing recidivism among

batterers); Kalyani Robbins, Note, Ne-Drop Prosecution of

Domestic Violence: Just Good Policy, or Equal Protection

Mandate?, 52 STAN. L. REV. 205, 219 (1999) (“after one

time through the process, batterers are more acutely

aware of the threat of certain prosecution, which can act

as an even more effective deterrent than mere arrest);

Richard M. Tolman & Arlene Weisz, Coordinated Commu-

nity Intervention for Domestic Violence: The Effects of

Arrest and Prosecution on Recidivism of Woman Abuse

Perpetrators, 41 CRIME & DELINQ. 481 (1995) (finding that

the combination of arrest and prosecution prevented and

deterred recidivism among male batterers). Conversely,

i

~

7

drunk drivers who escape punishment are highly likely to

reoffend. Jiang Yu & William R. Williford, Drunk-driving

Recidivism: Predicting Factors from Arrest Context and

Case Disposition, 56 J. STUD. ON ALCOHOL 60 (1995).

Impeding future pleas may also hinder rehabilitation

of these offenders. A guilty plea may sometimes amount to

the first step down the road to rehabilitation. See Brady v.

United States, 397 U.S. 742, 753 (1970) (endorsing the

guilty plea as a signal that the defendant “is ready and

willing to admit his crime and to enter the correctional

system in a frame of mind that affords hope for success in

rehabilitation over a shorter period of time than might

otherwise be necessary”); United States v. Edwards, 35

M.J. 351, 355 (C.M.A. 1992) (“[g]enerally, a guilty plea is a

positive first step to rehabilitation”); see also U.S. SEN-

TENCING GUIDELINES MANUAL § 3E1.1(a) (2001) (providing

for less severe sentence “[i]f the defendant clearly demon-

strates acceptance of his responsibility for his offense”). In

the same vein, twelve-step programs such as Alcoholics

Anonymous require admitting that one has a problem as

an essential step to recovery. ALCOHOLICS ANONYMOUS,

TWELVE STEPS AND TWELVE TRADITIONS 55-62 (1981)

(requiring alcoholics to confess their drinking problems to

others as a way of puncturing their rationalizations,

illusions, and wishful thinking). Even an insincere guilty

plea may be a step towards true acceptance of responsibil-

ity, and it can also bring vindication, healing, closure, and

finality to victims and the community at large. Stephanos

Bibas, Harmonizing Substantive-Criminal-Law Values

and Criminal Procedure: The Case of Alford and Nolo

Contendere Pleas, 88 CORNELL L. REV. 1361, 1398, 1400,

1406-07 (2003). Conversely, some defense counsel may

protract litigation and encourage clients to remain in

-

8

denial rather than coming clean and admitting guilt in a

guilty plea. Encouraging defense counsel to foster this

adversarial stance may harden defendants’ denial, making

them less amenable to treatment later on. See id. at 1397,

1404-06.

In addition, guilty pleas move offenders into court-

ordered treatment more quickly. These treatment pro-

grams can reduce recidivism by drunk drivers and domes-

tic abusers, particularly when coupled with punishment or

the threat of punishment. See Huey-tsyh Chen et al.,

Evaluating the Effectiveness of a Court Sponsored Abuser

Treatment Program, 4 J. FAM. VIOLENCE 309 (1989) (find-

ing that a domestic-abuse treatment program reduced

recidivism rates to 10% over the next 14 months); L. Kevin

Hamberger & James E. Hastings, Skills Training for

Treatment of Spouse Abusers: An Outcome Study, 3 J. FAM.

VIOLENCE 121, 126 (1988) (finding that a domestic-abuse

treatment program reduced recidivism from 47% to 28%);

Christopher M. Murphy et al., Coordinated Community

Intervention for Domestic Abusers: Intervention System

Involvement and Criminal Recidivism, 13 J. FAM. VIO-

LENCE 263, 278-79 (1998) (finding that prosecution and

court-mandated domestic-violence treatment lowered

recidivism significantly); Nichols, supra, 14 ALCOHOL

HEALTH & RES. WORLD 44 (finding that education pro-

grams reduce drunk-driving recidivism among first of-

fenders and nonproblem drinkers and that legal sanctions

such as license suspension are effective in deterring and

incapacitating drunk drivers); W. Larry Campbell, An

Alternative for Drunk Drivers, 10 ADDICTION & RECOVERY

46 (1990) (finding that court-ordered alcohol counseling

coupled with an education program reduced drunk-driving

recidivism). Delaying entry of a guilty plea, in contrast,

Ey

may leave the untreated defendant free on bail, particu-

larly because these misdemeanors are likely to carry low

bails and no pretrial detention. While free on bail, the

defendant may well drive drunk or abuse again.

The decision below, by impeding knowing, voluntary

guilty pleas, undermines the government’s interest in

quickly deterring, incapacitating, and treating recidivists

generally and drunk drivers and domestic abusers in

particular.

B. The Iowa Court Erroneously Placed the

Burden on the Prosecution to Prove That Re-

spondent, Who Had Expressly Declined the

Assistance of Counsel, Knowingly Waived the

Right to Counsel When He Pleaded Guilty to

OWI in 1996.

The decision below required the prosecution in collat-

eral proceedings to prove that a pro se defendant know-

ingly waived the right to counsel before entering a guilty

plea, even though he expressly declined the assistance of

counsel. (Pet. App. 18-19.) The Iowa court’s interpretation

of the Sixth Amendment contravenes this Court’s holdings.

When the record contains no indication that a pro se

defendant declined the assistance of counsel in entering a

guilty plea, on collateral attack the prosecution bears the

burden of proving a knowing waiver of the right to coun-

sel. Conversely, when the record shows that a pro se

criminal defendant knew of that right but desired to

proceed without the assistance of counsel, on collateral

attack the criminal defendant bears the burden of proving

that he did not knowingly waive the right to counsel.

These are the teachings of Moore v. Michigan, 355 U.S.

10

155, 161-62 (1957) and Carnley v. Cochran, 369 U.S. 506,

517 (1962). Teske v. State, 507 So.2d 569, 571-72 (Ala. Cr.

App. 1987); State v. Hamilton, 725 P.2d 590, 592 (N.M. Ct.

App. 1986); C. Allen Parker, Proposed Requirements for

Waiver of the Sixth Amendment Right to Counsel, 82

CoLuM. L. REV. 363, 382 n.124 (1982).

The court below ignored those teachings. Without

citing any authority, the court simply placed the burden

upon the prosecution to show that Respondent — who had

expressly declined the assistance of counsel for his 1996

OWI offense — knowingly waived his right to counsel. (Pet.

App. 18-19.)

This misplaced burden of proof creates enormous

practical problems for prosecutors, who cannot retrieve

records that never existed or were destroyed long ago.

Though there happens to have been a transcript of the

earlier plea colloquy in this case, this misplaced burden of

proof will cause prosecutors great practical difficulties in

future cases in which transcripts were never made or have

long since been destroyed or lost. State-court waivers of

counsel and guilty-plea proceedings in misdemeanor cases

commonly go unreported. Even if the proceedings are

reported, court personnel routinely destroy transcripts,

audiotapes, and other documents as part of record-

retention policies. Nichols v. United States, 511 U.S. 738,

748 (1994) (“a large number of misdemeanor convictions

take place in police or justice courts which are not courts

of record”; thus, “without a drastic change in the proce-

dures of these courts, there would be no way to memorial-

ize” a warning “that a misdemeanor defendant to be

warned that his conviction might be used for enhancement

purposes should the defendant later be convicted of an-

other crime”); accord United States v. Hartsock, 2003 WL

= ———-

11

22330976, at *7 (1st Cir. Oct. 10, 2003); see, e.g., Moore v.

Michigan, 355 U.S. at 157; United States ex rel. Ackerman

v. Russell, 388 F.2d 21, 24 (3rd Cir. 1968); United States v.

Bethurum, 213 F. Supp.2d 679, 683-84 (N.D. Tex. 2002);

Pam Louwagie, Court-hearing Transcripts. No Longer

Mandatory, MINNEAPOLIS-ST. PAUL STAR-TRIBUNE, at 5B

(Nov. 4, 2003) (reporting that under a Minnesota Supreme

Court order, most felony and gross misdemeanor pleas and

sentences will be audiotaped but not transcribed unless a

court orders it or someone else pays for the transcript). See

generally NaT’L CENTER FOR STATE COURTS, SMALL CLAIMS

AND TRAFFIC COURTS: CASE MANAGEMENT PROCEDURES,

CASE CHARACTERISTICS, AND OUTCOMES IN 12 URBAN

JURISDICTIONS 111 (1992) (paperwork generated by traffic

cases, the single largest category of cases in state trial

courts, places the most serious burden upon court admini-

stration); DONALD S. Skupsky & JOHN C. MONTANA, Law,

RECORDS AND INFORMATION MANAGEMENT 131 (1994)

(record-retention programs try to balance the duty to

preserve evidence against the need to eliminate valueless

records, reduce space requirements, and reduce costs).

There are no national standards, guidelines, or formats for

the retention of records, leaving each state to define its

own schedule. THoMAS G. DIBBLE, A GUIDE TO COURT

RECORDS MANAGEMENT 44 (Nat'l Center for State Courts

1986). Thus, some states keep no transcripts of plea

hearings in misdemeanor cases, and others routinely

destroy them after a limited period of time. In states with

no clear policies or a variety of policies, it may be impossi-

ble to know ahead of time what records are available. The

result may be futile searches for records that may never

have existed or may have been destroyed long ago.

12

In Moore v. Michigan, this Court alleviated these

problems by allowing any indication of waiver to shift the

burden to the defense. Prosecutors who seek to use a

defendant’s prior conviction to enhance punishment may

rely upon certified copies of court records that reveal that

the conviction resulted from a guilty plea at which the

defendant declined the assistance of counsel. If the defen-

dant in a collateral proceeding then alleges that he did not

know of his right to counsel in entering the plea or that he

did not knowingly waive that right, he bears the burden of

proof. An alleged denial of the right to counsel that ap-

pears on the face of court records is a simple matter to

prove. As this Court has suggested, there is a prima facie

constitutional violation where “the certified records of [a

prior] conviction on their face raise a presumption that

petitioner was denied his right to counsel.... [A court

cannot p)resum[e] waiver of counsel from a silent re-

cord....” Burgett yp. Texas, 389 U.S. 109, 114-15 (1967).

But if the docket sheet, judgment roll, or minute orders

indicate that a defendant waived or declined counsel, any

further inquiry behind the face of the records would be

much more burdensome. Thus, this Court has been wary

of allowing collateral attacks on prior convictions to go

beyond the face of the official court records. “Ease of

administration ... supports the distinction. ... [FJailure

to appoint counsel at all will generally appear from the

judgment roll itself, or from an accompanying minute

order. But ... failure to assure that a guilty plea was

voluntary[{] would require sentencing courts to rummage

through frequently nonexistent or difficult to obtain state-

court transcripts or records that may date from another

era, and may come from any one of the 50 States.” Custis

v. United States, 511 U.S. 485, 496 (1994).

-~o=m

13

In light of these difficulties, shifting the burden of

proof to the prosecution would greatly hinder or even

preclude effective enforcement of recidivist statutes. It is

hard enough to find witnesses who can recall events

occurring in the recent past. It is all but impossible to find

them years later. As one commentator explains, a collat-

eral attack on a guilty plea may arise years later and

“require[] examining incomplete records from far away

jurisdictions in cases long ago closed and forgotten. The

practical problems of finding the facts to support or refute

a claim about the validity of a plea in such conditions are

immense.” 2 DAVID ROSSMAN, CRIMINAL LAW ADVOCACY:

GUILTY PLEAS { 6.06, at 6-51 (2003).

United States v. Hartsock, 2003 WL 22330976 (1st Cir.

Oct. 10, 2003) considered these practical problems in the

context of 18 U.S.C. § 922(g)(9). That statute restricts the

carrying of weapons by anyone convicted of a misde-

meanor crime of domestic violence, except when the prior

conviction occurred without counsel or without a knowing

and intelligent waiver of counsel. At issue was whether

prosecutors or defendants bear the burden of proving the

lack-of-counsel exception.

After observing that State authorities had destroyed

the plea transcripts of the defendant’s 1992 domestic

assault conviction during routine space-saving procedures,

Hartsock, supra, at *1, the First Circuit held that defen-

dants seeking to take advantage of the exception must

prove that they never knowingly and intelligently waived

the right to counsel. Jd. at *7. Placing the burden of proof

on the prosecution would substantially hamper its ability

to enforce and effectuate the statute, because “the prosecu-

tion will often not be able to offer any proof beyond the

record of the prior conviction. State courts routinely

14

destroy supporting records. As such, requiring the [prose-

cution] to shoulder the burden of persuasion would ...

place “‘an impossible burden on the prosecution to estab-

lish the existence of facts within the special knowledge of

the defendant.’” Jd. (quoting 1 WAYNE R. LAFAvE, SuB-~

STANTIVE CRIMINAL LAW, § 1.8 (1986)).

The First Circuit’s analysis illustrates why the deci-

sion below would create a large loophole for recidivists to

exploit and thereby defeat society's interest in imposing

greater punishment for repeat violators of the laws. See

generally Lockyer v. Andrade, 538 U.S. 63, __, 123 S. Ct.

1166, 1177-78 (2003); Rummel v. Estelle, 445 U.S. 263, 284

(1980).

In placing the burden upon defendants in collateral

proceedings to show an unknowing waiver when the

record discloses that they declined the assistance of

counsel, this Court in Moore and Carnley recognized the

importance of promoting the finality of judgments. This

interest in finality supports giving a prior judgment its

“‘normal force and effect in a proceeding that ha[s] an

independent purpose other than to overturn the prior

judgment.’” Custis v- United States, 511 U.S. 485, 497

(1994) (quoting Parke v. Raley, 506 U.S. 20, 30 (1992)).

“Inroads on the concepts of finality tend to undermine

confidence in the integrity of our procedures” and inevita-

bly delay and impair the orderly administration of justice.

United States v. Addonizio, 442 U.S. 178, 184 n. 11 (1979).

The decision below — in which Respondent successfully

mounted a collateral attack upon a pro se guilty plea

without offering any evidence that he lacked knowledge

about the advantages of counsel when he entered that plea

15

— does little to promote public confidence in final judg-

ments or the court system.

¢

CONCLUSION

For the foregoing reasons, amicus curiae respectfully

asks this Court to reverse the judgment of the Supreme

Court of Iowa.

Respectfully submitted,

STEPHANOS BIBAS

Counsel of Record

Associate Professor

UNIVERSITY OF IOWA COLLEGE

OF LAw

Iowa City, LA 52242

(319) 384-4569

Of Counsel:

THE HONORABLE

ROBERT P. MCCULLOCH

Prosecuting Attorney,

St. Louis County, MO

President, National District Attorneys

Association

JAMES D. POLLEY, IV

NATIONAL DISTRICT ATTORNEYS

ASSOCIATION

99 Canal Center Plaza

Suite 510

Alexandria, VA 22314