# Amicus Curiae Brief — Iowa v. Tovar

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0652%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 77

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0652%3A10. Public record. Not legal advice.