In the Matter of Justin Alexander MARSHALL. Justin Alexander Marshall, Appellee, v. State of Iowa, Appellant.
No. 10-0652.
Supreme Court of Iowa.
Sept. 2, 2011.
804 N.W.2d 145
Rachel C.B. Antonuccio of Cole & Vondra, LLP, Iowa City, for appellee.
APPEL, Justice.
In this case, we consider the scope of the State‘s authority under
I. Factual and Procedural Background.
In October 2009, Iowa City police responded to a 911 call and found the body of John Versypt in a hallway of an apartment building in Iowa City. Versypt was the victim of a gunshot wound to the head.
As part of their investigation, police spoke with Justin Marshall, who resided at the apartment building where Versypt‘s body was found. Marshall provided police with incorrect statements about his whereabouts at the time of the murder and provided inconsistent statements to police about his knowledge of the murder and surrounding events. Marshall agreed to take two polygraph tests and on both occasions provided answers that police regarded as deceptive.
At the time of the murder, Marshall was staying with his aunt in her apartment in the building. His aunt and one of her daughters, however, moved from Iowa City to Chicago after the shooting. Although Marshall‘s father resided in Iowa City in the past, an arrest warrant, which had been issued in 2008, was outstanding and his whereabouts were unknown. Police were aware of no other relatives of Marshall‘s in the Iowa City area. As the investigation continued, police received information from tenants in the apartment building that Marshall‘s aunt had purchased a bus ticket for Marshall to Texas, where criminal charges were pending against him.
In light of the crime, the belief that Marshall had information relating to it, Marshall‘s lack of current family connections to Iowa City, and his apparent plan to leave the area, the State filed a material witness complaint against Marshall and sought an arrest warrant for him. A magistrate approved the warrant, and the warrant was executed on November 18, 2009. At the time of Marshall‘s arrest, no one had been charged with the murder of Versypt. The magistrate entered an order requiring $100,000 in sureties, which Marshall did not produce. On February 11, 2010, the State charged Charles Thompson with murder in connection with Versypt‘s death.
On February 8, 2010, three days before the State charged Thompson, Marshall‘s attorney filed a motion to dismiss the material witness complaint alleging that Mar-
The district court held that the State lacked statutory authority to continue Marshall‘s detention and ordered his release. The district court concluded that the original detention was lawful as there was probable cause to believe that Marshall possessed information related to the murder and that, at the time of his arrest, a subpoena could not be served on him as Thompson had not been arrested and a trial date for the underlying crime had not been set. According to the district court, however, the posture changed after Thompson was charged with the murder of Versypt and a trial date set. At this point, the district court reasoned, probable cause to believe that Marshall would be unavailable for the service of a subpoena “disappeared.” As a result, the district court concluded that there was no further basis for detaining Marshall.
The State filed an application for interlocutory review of the district court‘s order. We granted interlocutory review and now affirm.
II. Standard of Review.
The district court‘s dismissal of the material witness complaint was based on an interpretation of
III. Issues Presented on Appeal.
The nub of Marshall‘s claim is that the State lacked statutory authority under the facts and circumstances of this case to hold him as a material witness after a trial date had been set for the underlying criminal trial and a subpoena could be served on him. The question involves the proper interpretation of
When a law enforcement officer has probable cause to believe that a person is a necessary and material witness to a felony and that such person might be unavailable for service of a subpoena, thе officer may arrest such person as a material witness with or without an arrest warrant.
The officer shall, without unnecessary delay, take the person arrested pursuant to section 804.11 before the nearest or most accessible magistrate to the place where the arrest occurred.
.... The magistrate may order the person released pursuant to section 811.2.
Marshall asserts that the narrow language in
The State counters that Marshall‘s focus on the language in
IV. Overview of Witness Detention Prior to Trial.
A. The Concept of Witness Detention. In Stein v. New York, 346 U.S. 156, 184, 73 S.Ct. 1077, 1092, 97 L.Ed. 1522, 1542 (1953), overruled on other grounds by Jackson v. Denno, 378 U.S. 368, 391, 84 S.Ct. 1774, 1788, 12 L.Ed.2d 908, 924 (1964), Justice Robert Jackson observed in an often-cited passage that “[t]he duty to disclose knowledge of crime ... is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.” No one can seriously doubt that obtaining the testimony of witnesses in a criminal trial is important to society. A civilized society justly demands that citizens who have knowledge of crime provide testimony to ensure that the criminal laws are effectively enforced. See State v. Hernandez-Lopez, 639 N.W.2d 226, 236 (Iowa 2002).
Yet, at the same time, the notion of incarcerating an innocent individual who happens to be a witness to a crime is troublesome. How can it be, for instance, that a wealthy person accused of a serious crime may be free on bail pending trial while an innocent but indigent witness of the crime who is unable to post required sureties is detained prior to trial? Is it fair for the state to infringe on a witness‘s liberty interest through incarceration when the state lacks probable cause to arrest the witness for a crime? Why do we allow a criminal defendant to demand a speedy trial, but afford no analogous right to a jailed witness? Constitutional implications of due process, equal protection, and search and seizure lurk in the shadows of these nеttlesome questions.1
B. Historical Concerns Regarding Witness Detention. Concerns about the potential abuse of witness detention have historically triggered periodic calls for reform.2 For ex-
Concerns regarding witness detention were so great early in the twentieth century that, in 1912, the committee on Jurisprudence and Law Reform of the American Bar Association recommended that under no circumstances should a witness have to undergo detention for his inability to post bond. Comment, Cessante Ratione Legis Cessat Ipsa Lex (The Plight of the Detained Material Witness), 7 Cath. U.L.Rev. 37, 40 (1958) [hereinafter Cessante Ratione Legis Cessat Ipsa Lex].
Although this sweeping bright-line recommendation was ultimately rejected, the American Bar Association approved a resolution that detention of material witnesses should occur only under extraordinary circumstances and that, when detention was necessary, due regard should be afforded the witness with respect to personal comfort and just compensation. Id. In 1930, the American Law Institute addressed the issue of witness detention in its Model Code of Criminal Procedure. Among other things, the Model Code provided that if a magistrate determined that a witness was unable to post the required bond, a three-day window for deposition of the witness was opened, after which the witness was discharged. Model Code of Criminal Procedure § 58 (1931).
As the twentieth century advanced, the states and the federal government sought to accommodate the needs of law enforcement without unduly infringing the liberty interests of witnesses. There were two noteworthy statutory developments designed to strengthen the ability of law enforcement to obtain needed testimony in criminal trials without pretrial detention.
On the federal level, Congress enacted the Federal Fugitive Felon Act in 1948. See
In addition, all states enacted versions of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See, e.g.,
The traditional debate over the proper use of material witness detention continued unabated in the second half of the twentieth century and into the new millennium. In the 1950s and 1960s, a fistful of student commentaries criticizing witness
C. English Common Law. Common law in the fifteenth century did not recognize the right to compel a witness to testify in criminal proceedings. Over time, however, the common law evolved to the point where witnesses had a duty to testify and could be compelled to do so. See generally Stacey M. Studnicki, Material Witness Detention: Justice Served or Denied?, 40 Wayne L.Rev. 1533, 1534-36 (1994). Some dispute exists as to whether the common law permitted the detention of a witness prior to a breach of the obligation to testify. One prominent scholar has concluded that, while a witness could be placed under legal compulsion to appear at trial, there was no common law authority to detain a witness prior to trial to secure testimony. Joseph G. Cook, The Detention of Material Witnesses and the Fourth Amendment, 76 Miss. L.J. 585, 609 (2006). This view finds support in a number of state cases holding that there is no common law power to detain material witnesses prior to any unlawful conduct. See, e.g., Comfort v. Kittle, 81 Iowa 179, 182, 46 N.W. 988, 989 (1890); Bickley v. Commonwealth, 25 Ky. (2 J.J. Marsh.) 572, 573-74 (1829); Bates v. Kitchel, 160 Mich. 402, 125 N.W. 684, 685 (1910); Little v. Territory, 28 Okla. 467, 114 P. 699, 699-700 (1911). But see State ex rel. Gebhardt v. Buchanan, 175 So.2d 803, 805-06 (Fla.Dist.Ct.App.1965); Lowe v. Taylor, 180 Ga. 654, 180 S.E. 223, 226 (1935).
D. Federal Material Witness Statutes and Case Law.
1. Federal statutory background. Material witness statutes in the United States have a long history. The First Judiciary Act of 1789 addressed the question. Specifically, in a criminal case, the First Judiciary Act stated that copies of process against an accused should be speedily returned to the clerk‘s office, “together with the recognizances of the witnesses for their appearance to testify in the case; which recognizances the magistrate before whom the examination shall be, may require on pain of imprisonment.” First Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73, 91 (1789). The focus of this original federal witness detention provision was explicitly to ensure the appearance of the witness to testify in the case. See id. Further, there was no provision for detention of witnesses for failure to provide bail or sureties, but only for failure to enter into a recognizance before a magistrate to appear at the trial to provide testimony.5 Id. At least one scholar has suggested that “pain of imprisonment” occurred only when the recognizance, or promise to appear, was violated. See Bascuas, 58 Vand. L.Rev. at 707-08.
The question of whether the federal government has authority to detain material witnesses was eventually resolved through congressional action. When Congress passed the Bail Reform Act of 1966, it did
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person.... No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.
2. Federal case law on relationship between arrest and detеntion and service or compliance with subpoenas. A key issue in this case is the relationship between the subpoena power and the authority of the state to detain a witness prior to trial. There is a body of federal case law related to the relationship between the arrest and detention of a material witness and the service of and/or responsiveness of a witness to a subpoena.
In Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 49 S.Ct. 452, 455, 73 L.Ed. 867, 871 (1929), the Supreme Court considered whether the petitioner, who declined to testify before a Senate committee, could be arrested to compel his attendance without service of a subpoena. The Court stated that the practice of issuing an arrest warrant only after a witness disobeys a subpoena is “generally to be followed.” Barry, 279 U.S. at 616, 49 S.Ct. at 456, 73 L.Ed. at 873. Yet, the Court further stated that “a court has power in the exercise of sound discretion to issue a warrant of arrest without a previous subpoena, when there is good reason to believe that otherwise the witness will not be forthcoming.”
The relationship between witness detention and subpoena issues was again explored forty years after Barry by the Ninth Circuit in Bacon v. United States, 449 F.2d 933 (9th Cir.1971). In Bacon, the Ninth Circuit held that the Government failed to show sufficient likelihood that it was impracticable to obtain the witness‘s presence through a subpoena where the Government asserted that the witness had access to large amounts of cash, had personal contact with fugitives, and was captured on a rooftop in Washington, D.C. Bacon, 449 F.2d at 944. The court emphasized that there was no showing of past attempts by Bacon to evade judicial process or of past clandestine travels by Bacon.
Several years after Bacon, the relationship between the arrest and detention of a material witness and subpoena issues was revisited by a federal district court in United States v. Feingold, 416 F.Supp. 627 (E.D.N.Y.1976). In Feingold, the witness had not actually disobeyed a subpoena, but there were seven unsuccessful attempts to serve him and his attorney with a subpoe-
These federal cases, of course, are not authority for the construction of Iowa‘s differently framed witness detention statute. What these cases show, however, is that the question of the proper relationship between detention of a witness and the adequacy of subpoena power was a question being ventilated in the federal courts when Iowa‘s current material witness provisions were adopted by the general assembly.
E. State Material Witness Statutes and Case Law.
1. Introduction. State statutes relating to detention of material witnesses have also been around for a long time. Early material witness statutes were generally brief and to the point. Originally, many of them did not call for detention upon failure to provide security; but, in most states, there have been subsequent amendments somewhat broadening the scope of material witness detention authority.
2. Review of state material witness statutes. As with our review of federal law, a survey of the material witness provisions of other state statutes provides context to illuminate the Iowa legislature‘s choice of language in
Following the federal approach, many state material witness statutes authorize detention of a material witness when the state makes a sufficient demonstration that it is impracticable to secure the presence of the person by subpoena.6 Other states, though they do not specifically mention the ineffectiveness of subpoenas, nonetheless emphasize that the purpose of material witness prоvisions is to ensure that witnesses “appear and testify” in criminal proceedings.7 Both of these state
A number of states seek to limit the duration of detention of material witnesses. Like the federal statute,8 about fifteen state constitutions and/or statutes provide that a witness may not be detained longer than is necessary to secure testimony by deposition under certain circumstances.9 A few other states—notably
The material witness statute in Illinois is the most like Iowa‘s. The statute provides that the judge may require a witness “to enter into a written undertaking to appear at the trial.”
In summary, no other state material witness statute uses comparable language to
3. State case law regarding detention of material witnesses. State courts have addressed a number of issues related to the detention of material witnesses under local law. In construing material witness statutes, a number of courts have stressed the need to impose a narrow or strict construction of them because of the potentially dramatic effect on the liberty interests of innocent persons. See, e.g., In re Yasutaro, 15 Haw. 667, 670 (1904); People ex rel. Van Der Beek v. McCloskey, 18 A.D.2d 205, 238 N.Y.S.2d 676, 680 (1963); In re Prestigiacomo, 234 A.D. 300, 255 N.Y.S. 289, 289 (1932); State v. Lloyd, 22 Or.App. 254, 538 P.2d 1278, 1289 (1975).
A few state courts have addressed the issue of the relationship between the subpoena power and witness detention. In State v. Hand, 101 N.J.Super. 43, 242 A.2d 888 (N.J.Super.Ct. Law Div.1968), the court considered the authority of a police officer to arrest a material witness under New Jersey common law. Under the facts of the case, the court concluded that because there was no evidence that the defendant would be “unavailable for service of a subpoena if she was needed in the prosecution,” she could not be arrested as a material witness. Hand, 242 A.2d at 895-97. In contrast, in In re Francisco M., 86 Cal.App.4th 1061, 103 Cal.Rptr.2d 794, 799, 808 (2001), a California court concluded that there was adequate basis to
F. Iowa‘s Material Witness Statute and Case Law.
1. Statutory background. Iowa‘s material witness statute can be traced back to 1851. Originally, the material witness statute permitted a magistrate to detain a material witness if the witness refused to provide a written undertaking that “he will appear and testify at the court to which the defendant is bound to answer” or if the magistrate required security and the material witness failed to provide it.
The legislature amended the material witness statute in 1880. The new provision stated that a witnеss could be required to enter into a written undertaking to the effect that he would “appear and testify” at court and would not “evade or attempt to evade the service of a subpoena.” 1880 Iowa Acts ch. 130, § 1 (codified at
The 1880 version was in place until 1978 when the current material witness statute codified in
The legislative history reveals that the version of the material witness statute that passed the Senate in 1976 contained a provision similar to that in the federal witness detention statute and the statutes of other states. Specifically, the Senate version of the bill provided:
Sec. 1103. NEW SECTION. RELEASE OF MATERIAL WITNESSES. If it appears by affidavit that the testimony of a person is material in any criminal proceeding, and if it is shown that it may become impracticable to secure his presence by subpoena, a magistrate shall impose conditions of release pursuant to section one thousand one hundred two (1102) of this division.
S.F. 85, 66th G.A., 2d Sess. § 1103 (Iowa 1976). The House, however, rejected this provision. See 1976 H.J. 1385. The final bill contained the current “might be unavailable for service of a subpoena” language. 1976 Iowa Acts ch. 1245, (ch. 2), §§ 408-09 (codified at
2. Iowa case law. We have had several occasions to consider issues related to the detention of material witnesses. In Comfort, we held that a provision of the Code which authorized judges in cases involving a change of venue to impose recog-
We recently considered questions related to Iowa‘s current material witness statute in Hernandez-Lopez. In this case, a material witness challenged his continued detention after he had given a deposition in the underlying criminal case. Hernandez-Lopez, 639 N.W.2d at 232-33. The sole issue preserved on appeal was a facial procedural and substantive due process challenge to
We rejected the facial claim that the statutes violated substantive due process. Because we noted that
We also rejected the facial attack on procedural due process grounds. We again emphasized that under
In Hernandez-Lopez, we did refer to
V. Discussion of Merits.
In this case, Marshall argues that Iowa‘s material witness statute authorizes only detention in order to ensure service of a subpoena and that once service of a subpoena is ensured, the material witness may no longer be held in custody. Marshall relies primarily on the language of
The State counters that
We begin our consideration by noting that traditionally, in Iowa and elsewhere, the power of the state to arrest and detain material witnesses not charged with a crime has generally been narrowly construed. See Comfort, 81 Iowa at 184-85, 46 N.W. at 990. Courts are reluctant to authorize detention of a person not accused of a crime for long periods of time in conditions of confinement that may be worse than those experienced by persons convicted of serious felonies. See id. at 183-85, 46 N.W. at 990. We believe the tradition of narrow construction of material witness statutes is based upon sound reasoning that continues to have application in the modern context. See 3 Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 58:4, at 120 (7th ed.2008) (statutes impinging on liberty interests subject to strict construction). We should give the language of the statute its fair meaning, but should not extend its reach beyond its express terms. State v. Hearn, 797 N.W.2d 577, 587 (Iowa 2011).
We next turn to the terms of the statute itself. We note that
It logically follows that if the basis for the arrest of a material witness is eliminated, there can be no basis for a continued detention. When a person is arrested based on a valid warrant establishing probable cause to believe a crime has been committed, federal due process requires that the accused must be released within a reasonable time when the underlying basis for the warrant is shown to be incorrect. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 683 (9th Cir.2001), abrogated on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir.2002); Panfil v. City of Chicago, 45 Fed.Appx. 528, 534 (7th Cir. 2002). Similarly, a witness may be validly held in contempt for failure to testify pursuant to a court order, but once the witness testifies, the witness is no longer in contempt. Raphael v. State, 994 P.2d 1004, 1009 (Alaska 2000).
Applying the reasoning of these lines of cases here, 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 undеrlying 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.
In reaching this conclusion, we note that the language in the Iowa statute is markedly different than that of the federal model, the Model Code of Criminal Procedure, and the majority of state statutes that focus on the need not to serve a subpoena but rather to secure presence at trial to present testimony. We also note that in the years just prior to the passage of the statute, the issue of the relationship between witness detention and subpoenas was actively being litigated in the federal and state courts. See Barry, 279 U.S. at 616, 49 S.Ct. at 456, 73 L.Ed. at 873; Hand, 242 A.2d at 895-97. We presume that the legislature was aware of the statutory and case law developments. Rathje v. Mercy Hosp., 745 N.W.2d 443, 459 (Iowa 2008).
The State suggests that the incorporation of the provisions of
Our refusal to use the bail statute as a method of extending detention not only is supported by language and logic, but case law. A recent decision of a federal district court considered the relationship between the federal material witness statute and the federal bail statute. See In re Material Witness Warrant, 213 F.Supp.2d 287, 295 (S.D.N.Y.2002); see also
The State zealously argues that, as a matter of sound policy, it should have the authority to detain a material witness until the underlying trial is held.
A contrary result would be inconsistent with our recent decision in Anderson v. State, 801 N.W.2d 1 (Iowa 2011). In Anderson, we declared “Ours not to reason why, ours but to read, and apply. It is our duty to accept the law as the legislative body enacts it.” Anderson, 801 N.W.2d at 6 (quoting Holland v. State, 253 Iowa 1006, 1011, 115 N.W.2d 161, 164 (1962)). Further, we noted
“If we do not follow the clear language of a statute but by a fallacious theory of construction attempt to impose our own ideas of what is best, even if in so doing we conceive that we are promoting the public welfare and achieving a desirable result, we are indulging in judicial legislation and are invading the province of the Legislative branch of the Government, or of the electorate in amending the basic law. The end does not in such cases justify the means. We must accept [the statute] as the legislature wrote it, and its meaning is definite and beyond fair debate.”
As Anderson explained, we have stated that in the interpretation of statutes, we seek to avoid absurd results.
We do not find our approach to the statute inconsistent with our case law. It is true that in Hernandez-Lopez we used the phrase “unavailable for trial” several times in our opinion. See Hernandez-Lopez, 639 N.W.2d at 232, 239, 242. But the only issues in Hernandez-Lopez were facial challenges to the statutes on grounds of substantive and procedural due process. Id. at 233-34. The content of the statutory requirements themselves was not at issue. Further, while the term “unavailable for trial” was occasionally used, the Hernandez-Lopez court noted that the statute was “narrowly drawn” and encompassed “only those individuals who have material knowledge to the commission of a felony and will be unavailable for service of a subpoena.” Id. at 240. Finally, in the subsequent case of Enderle the “unavailable for trial” phrasing did not appear and only the narrow express language of the statute was cited. Enderle, 745 N.W.2d at 440. As a result, the passing references in Hernandez-Lopez to “unavailable at trial” thus are not authority for an expansive interpretation of the statute.
Indeed, a contrary approach would overturn our existing case law. We held long ago that material witness detention statutes are to be narrowly construed because of the liberty interests affected. Comfort, 81 Iowa at 183-85, 46 N.W. at 990. A narrow reading of the material witness statute compels the result we have reached in this case. There is no basis for overturning our traditional rule.
Finally, our approach does not render the statute superfluous as suggested by the State. The statute may be used after a criminal proceeding has been commenced against a third party but the location of a material witness is not presently known. After an arrest warrant has been issued, law enforcement officers across the stаte will have the authority to arrest the witness. The witness may then be held in custody, with bond if appropriate, until the witness is served with a subpoena in the underlying criminal action.
The statute may also be used when a person has been charged but not arrested. Until the arrest of the individual, it will not ordinarily be possible to serve a subpoena on a material witness to appear at a trial that has not been set. Under these circumstances, the witness may be detained if a judge determines there are no other less restrictive alternatives or the witness fails to post required sureties until the arrest of the person charged with the crime and authorities are in a position to serve a subpoena upon the witness.
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. This was the procedural posture in Hernandez-Lopez. While there may be constitutional limits regarding the nature and length of such detentions, we do not confront these issues today.11
VI. Conclusion.
For the above reasons, we conclude that
AFFIRMED.
All justices concur except CADY, C.J., WATERMAN, and MANSFIELD, JJ., who dissent.
CADY, Chief Justice (dissenting).
I respectfully dissent.
I disagree with the majority‘s arrest and release interpretation of the material witness statutes. Under that interpretation, a material witness may be arrested if he or she would be unavailable for service of a subpoena, but then must be released once the trial subpoena has been served. According to the majority, release must occur even if the witness has given every indication that he or she will disregard the trial subpoena. 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.
Thus, as I read
Accordingly, while the statute predicates arrest on a likelihood of the material witness being unavailable for service of a subpoena, the overall thrust of the statute, like other material witness statutes around the country, is to assure that material testimony in a criminal case is presented at the trial.
The majority argues that the arrest of a material witness and the continued detention of a material witness cannot be governed under different standards. They maintain, “It logically follows that if the basis for the arrest of a material witness is eliminated, there can be no basis for a continued detention.” But why? The two fact-specific cases cited by the majority do not support their broader proposition.2 In reality, it happens all the time that a person is arrested for one criminal charge but is then detained because of a different criminal charge even though the original grounds for arrest turned out on further investigation to be unsupported. See, e.g., State v. Bradford, 620 N.W.2d 503, 508 (Iowa 2000) (holding police properly arrested defendant for harassment and noting propriety of subsequent detention based on different charge).3 “Catch and release” is not required here.
The majority acknowledges that, when interpreting statutes, it is bound by what the legislature has written, not by what it might have written. See Ranniger v. Iowa Dep‘t of Revenue & Fin., 746 N.W.2d 267, 270 (Iowa 2008). Further, it acknowledges that we may not write into the statute anything that is not apparent from the words chosen by the legislature. See State v. Iowa Dist. Ct., 730 N.W.2d 677, 679 (Iowa 2007). Yet, it does both in this case by resorting to policy considerations on the controversial area of detaining witnesses and by assuming that detention may not continue once its initial purpose has been served.
I recognize that witness detention statutes raise serious constitutional concerns. Hernandez-Lopez addressed a number of those concerns and made it clear that constitutional due process is an important lim-
Even if
I acknowledge that even my construction of the statute does not whisk all the lumps from the batter. Both the majority and I agree that a material witness cannot be arrested in the first place unless he or she would be unavailable for service of a subpoena. See
For these reasons, I would reverse the district court.
WATERMAN and MANSFIELD, JJ., join this dissent.
MARK S. CADY
CHIEF JUSTICE
STATE of Iowa, Appellee, v. Robin Eugene BRUBAKER, Appellant.
No. 10-0828.
Supreme Court of Iowa.
Sept. 23, 2011.
As Amended on Denial of Rehearing Nov. 3, 2011.