Material witnesses in a criminal trial can be jailed against their will only long enough to be served a subpoena to appear at trial, Iowa Supreme Court justices ruled Friday.

The 4-3 decision narrowly affirmed a Johnson County case in which an Iowa City man (whose aunt bought a bus ticket for him to Texas) was held to testify in another man’s murder trial. Iowa law says such detention is appropriate only when there’s probable cause to believe that the witness would be “unavailable for service of a subpoena.”

Justices David Wiggins, Daryl Hecht, Brent Appel and Bruce Zager, after noting a long line of state and federal case law, reasoned in the opinion that “when a material witness is arrested because of the likelihood that there will be an inability to serve a subpoena upon the witness, the witness must be released when the underlying basis for the detention is removed.

“We cannot hold that a witness who has been served a subpoena can be held as a material witness under a statute in which the explicit language states that its purpose is to ensure that a subpoena is served.”

According to Friday’s opinion, police are still free to seek arrest warrants for missing witnesses with needed information. Witnesses also can be detained in certain circumstances where a criminal defendant has been charged but not yet arrested, and it’s not yet possible to issue a subpoena for trial.

“In addition, consistent with any applicable constitutional restraints, the statute appears to allow a witness to be detained prior to the initiation of any criminal proceedings when it is simply not possible to serve a subpoena because there is no pending criminal prosecution,” the justices ruled.

Dissenting Justices Thomas Watterman, Edward Mansfield and Chief Justice Mark Cady countered that Iowa’s law was intended to secure the appearance of essential witnesses at trial and that “the existence of one gap in the statute as enacted is no reason for us to create bigger gaps that the Legislature did not enact.”

“According to the majority, release must occur even if the witness has given every indication that he or she will disregard the trial subpoena,” Cady wrote. “This interpretation seems impractical; renders Iowa’s statute different from other material witness statutes in the nation; and, most importantly, is inconsistent with the statutory language.”

In other cases, justices:

Overruled the Iowa Court of Appeals in reinstating a Polk County juvenile judge’s decision to terminate a mother’s rights in custody disputes that involved two daughters by two different fathers and allegations that one child was abused by the mother’s boyfriend.

The Polk judge ruled in February that terminating the mother’s rights was in the children’s best interest. The appellate court overruled that decision in May, arguing that the children would best be served by requiring the mother to pay child support.

“We also share the Court of Appeals’ concern that, in some instances, terminating the rights of a parent who is obligated to pay child support may place a greater financial burden on the remaining parent or the state,” justices said. “But if the alternative is that the child’s safety, nurturing and growth, or physical, mental, and emotional condition and needs will suffer, the Legislature has directed us to proceed with termination.”

Reinstated an appeal for Thomas Lado, a Polk County man convicted of dependent adult abuse in 2006.

Lado’s application for post-conviction relief (essentially a second round of appeals under Iowa law) lapsed when a court-appointed lawyer missed a deadline in 2009. Appellate judges eventually ruled that Lado had been the victim of an ineffective lawyer. But instead of immediately reinstating the appeal, they put the case on track for more legal proceedings to determine whether the lawyer’s mistake would have affected the outcome of Lado’s case.

Justices sent the case immediately back to district court, ruling that Lado’s lawyer had committed a “structural error” that renders any future legal proceedings unreliable.

“Lado was constructively without counsel during his post-conviction relief proceeding, as his application was dismissed without any consideration of its merits or meaningful adversarial testing,” justices ruled. “This is the type of error that renders the entire post-conviction relief proceeding ‘presumptively unreliable.’ Accordingly, Lado’s statutory right to effective counsel entitles him to have his post-conviction relief dismissal reversed and to proceed with his post-conviction relief proceeding.”

http://www.desmoinesregister.com/article/20110903/NEWS/309030038/1002/NEWS01/Iowa-high-court-affirms-ruling-witness-detention