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Updated: 29 min 7 sec ago

Fourth Amendment Win at the Tenth

Sun, 08/20/2017 - 22:08
Last Thursday, the Tenth Circuit handed down United States v. Nelson, reversing a district court order that denied a motion to suprress. The KCK U.S. Marshal entered a home to arrest Mr. Nelson on a supervised relase warrant. After they had placed Mr. Nelson in custody, they did a sweep of the house, and found "two firearms underneath a pile of clothes on a bed."

Mr. Nelson challenged the search as a violation of Maryland v. Buie, a 1990 Supreme Court opinion which held that,
[T]he Fourth Amendment would permit the protective sweep undertaken here if the searching officer possessed a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others(internal marks omitted).Following Buie, here Judge Mortiz wrote, "We vacate the denial based on our conclusion that the searching officer had no basis to reasonably believe that an unknown, dangerous person was hiding in the residence. Nevertheless, we remand for the district court to determine, in the first instance, whether the owner of the residence consented to the search."

This case is quite fact-dependent, but notable for a few reasons. First, the Court held that the government waived a several arguments because they had not been raised below.  Second, the Court rejected the government's curious good faith argument for the obvious reason that  "the Supreme Court has limited [the good-faith] exception to circumstances where someone other than a police officer has made the mistaken determination that resulted in the Fourth Amendment violation.”

And third, the Court also took time to address the KCK U.S. Marshal's policy and practice of a "blanket safety rule," conducting a sweep  every time that they enter a residence to make an arrest:
We note that if, as Nelson suggests, the United States Marshals Service for the District of Kansas maintains a practice that systemically ignores the framework set forth in Buie, such a practice would be troubling. As we explained in another case concerning law-enforcement officials in the Kansas City area, “The Fourth Amendment does not sanction automatic searches of an arrestee's home, nor does the fact-intensive question of reasonable suspicion accommodate a policy of automatic protective sweeps.” Hauk, 412 F.3d at 1186. Congrats to Dan Hansmeier.

-- Melody

Psych experts & sex offenses

Tue, 08/15/2017 - 17:51
Earlier this month, the D.C. Circuit reminded us how important it is in sex cases to present expert mental-health testimony in support of any mental-state (lack of intent) defense.

In United States v. Laureys, the D.C. Circuit granted habeas relief to the defendant after finding that his lawyer was ineffective for failing to present expert testimony in support of his client's fantasy defense to enticement and travel charges.

Emphasizing the "pivotal role" that psychiatry has come to play in criminal proceedings, the Court held that trial counsel unreasonably failed to secure an expert for his client's defense (relying instead on his client's own "lurid" testimony about his "deviant sex fantasies").

The Court described the expert's potential testimony in some detail; this part of the opinion is crucial reading for anyone contemplating a fantasy defense to enticement or similar charges.

Kansas drug convictions are not career-offender/ACCA predicates

Sun, 08/13/2017 - 19:39
Kansas convictions for selling drugs or possessing drugs with the intent to sell no longer qualify as "controlled substance" offenses under the career-offender guideline, the felon-in-possession guideline, or the ACCA. Kansas convictions for possessing with intent to sell may also not count under the illegal-reentry guideline.

Kansas law has defined a drug "sale" to include an "offer to sell" since the 1970s. This definition of sale appeared in caselaw and the PIK instructions for a long time, and is now part of the statutory definitions applicable to drug crimes. K.S.A. 21-5701(d); K.S.A. 21-5705. (Kansas has replaced the word "sell" with the word "distribute," but we will use the word "sell" here.)

This definition of sale applies whether the defendant is charged with "sale," "offer for sale," or "possession with intent to sell." In other words, three types of drug-trafficking (or "distribution") crimes might be charged in Kansas:

1. A drug sale (defined elsewhere to include an offer to sell);

2. An offer for sale (yes, redundant of #1, but there you have it); or

3. Possessing a drug with intent to sell (defined elsewhere to include an offer to sell). This third crime might include, for instance, fraudulent offers to sell; i.e., possession, intent to offer for sale, but no intent to carry out the sale.*

Last week, in United States v. Madkins, the Tenth Circuit held that none of these crimes may serve as career-offender predicates: "[A] conviction for possession with intent to sell a controlled substance—where sale is defined to include an offer—is broader than the conduct criminalized in § 4B1.2(a) and the authoritative commentary."

What to do after Madkins: 
1. Invoke Madkins to challenge the use of any Kansas drug-sale or possession-with-intent-to-sell convictions as career-offender predicates and any other predicate that cross-references § 4B1.2.

2. Invoke Madkins to challenge the use of these convictions as ACCA predicates (remember, those predicates must also have carried a max prison term of 10 or more years).

3. Invoke Madkins to challenge the use of any Kansas possession-with-intent-to-sell conviction to enhance an unlawful-reentry sentence under § 2L1.2. But note that this guideline is trickier. The commentary defines "drug trafficking offense" in this context to include an "offer to sell" or possession with intent to distribute. Does it cover possession with intent to offer for sale? We don't know, but it's definitely a live issue after Madkins.

*As the Tenth Circuit explained: "It is not difficult to imagine a scenario where a person possesses drugs and offers to sell them without ever intending to complete the transaction. For example, the would-be seller might extend an offer to sell marijuana to a would-be buyer. But the seller never intends to hand over the marijuana—instead, he plans to rob the would-be buyer and abscond with the money. In that situation, the offer would be fraudulent, because the offeror never intended to sell."

We can't stop blogging about this case......

Fri, 08/11/2017 - 22:01
A week a half back we blogged about a pretty crazy case where the Johnson County Sheriff got dressed up in full tactical gear to raid.....a family who was growing some tomatoes in their basement. Uh. Whoops. Sorry?

We would be remiss if we didn't mention another little gem buried in this 100 page opinion. The search warrant (besides the husband/father buying some gardening supplies for their tomatoes) was based on some green leafy vegetation (tea) "field testing" positive for marijuana. To say the Tenth Circuit was not impressed with the "field test" used in this case would be an understatement:

The field tests used by the JCSO, which are expressly identified by the manufacturer as a preliminary tool requiring laboratory confirmation, do not meet this standard of reliability. One study found a 70% false positive rate using this field test, with positive results obtained from substances including vanilla, peppermint, ginger, eucalyptus, cinnamon leaf, basil, thyme, lemon grass, lavender, organic oregano, organic spearmint, organic clove, patchouli, ginseng, a strip of newspaper, and even air. As demonstrated by this litigation, caffeine may now be added to that list. A 70% false positive rate obviously flunks the reliability test.Yikes! Keep this language in mind for future cases. We all have cases where a field test is important in a warrant or to support further investigation. Remember this little gem when that issue rears its head in the future.


They risked their lives . . .

Sun, 08/06/2017 - 12:44
. . . to help the government, but then the government refused to help them.

The Tenth Circuit has officially endorsed two approaches when the government refuses to move for a substantial-assistance departure despite your client's best (and risky) efforts. In United States v. John Doe, the Court clarified that your client may have both constitutional and contractual remedies.

First, as the Supreme Court held in Wade v. United States, "federal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if . . . the refusal was based on an unconstitutional motive" or "not rationally related to any legitimate government end."

And second, because parties to a contract have a duty to deal in good faith, the district court may review the government's decision not to file the motion for good faith. This review should take a 3-step Batson-like form:

"[A] defendant must first allege that the government acted in bad faith. The government may then rebut that allegation by providing its reasons for refusing to file the motion. Assuming those reasons are at least facially plausible, we hold that a defendant is only entitled to good-faith review if he or she produces evidence giving reason to question the justification the government advanced."

Glove-box invasion violates Fourth Amendment

Tue, 08/01/2017 - 17:12

In United States v. Painter, an unpublished decision released last week, the Ninth Circuit held that law-enforcement officers conducted an unreasonable search when they looked in a driver's glove box after he ran a red light and crashed his car. The officers claimed to be looking for the car registration. But this information was "readily available" elsewhere: by running the license plate or the publicly viewable VIN through the police computers. And even if the VIN had been obscured and the licence plate destroyed in the crash, there was no exigency to excuse the officers from getting a warrant. A solid Fourth Amendment win for the defendant and a reminder that the police may not rely on a need for evidence that they can readily find in a less intrusive manner.

Law-abiding tea drinkers and gardeners beware . . .

Sun, 07/30/2017 - 17:06
So begins Judge Lucero's opinion in Harte v. Johnson County Board Comm'rs, a 100-page civil-rights plurality decision from the Tenth Circuit last week.

The Harte family (mom,* dad,* and two children) became "suspects" on a list of potential marijuana growers because dad and his two kids once visited a hydroponic garden store. Seven months after the garden-store visit, Johnson County officers claimed that two trash pulls from the Harte home yielded wet green vegetation** that allegedly field-tested positive for marijuana. The officers elected not to confirm these results with laboratory tests. In a hurry to meet their deadline for a drug-prosecution publicity stunt,*** they got a search warrant and executed a seven-man, two-plus-hours SWAT-style raid on the Harte family home.

Read about the raid for yourselves on pages 8-9 of Judge Lucero's opinion. It was intense. And the big find? Nothing but tomato plants.

The Hartes sued, asserting Fourth Amendment violations. The district court granted the defendants summary judgment on all claims, and the Hartes appealed. The Tenth Circuit sent the case back for further proceedings.

Some highlights:

Judge Lucero found the SWAT style raid to be excessive force and thus an unreasonable execution of the search warrant at pages 14-19/Lucero. Judge Phillips agreed. Page 50/Phillips. (They disagreed about whether the law on this issue is clearly established.)

Judge Phillips found insufficient allegations for the Hartes to proceed with their Franks claim that the Johnson County Officers lied about the field tests in their search-warrant affidavit. Judges Lucero and Moritz disagreed, finding that the Hartes had made the required "substantial showing" to proceed on at least part of their Franks claim. Pages 11-13/Lucero; Pages 3-8/Moritz.

Judge Phillips found that the search warrant was supported by probable cause, but that "what the deputies learned early on in the search dissipated any probable cause to continue searching." Page 34/Phillips. Judge Lucero agreed (though he would not have found probable cause in the first place). Page 14/Lucero. (Again, they disagreed about whether the law of dissipated probable cause is clearly established.) Dissipated probable cause is a theme we've seen before in the Tenth Circuit, here and here. Take heed. This is an issue not to be overlooked in suppression litigation.


*Oops, ex-CIA employees with the highest security-level clearance and no criminal records. And Mrs. Harte an attorney. Which Johnson County never bothered to find out before raiding their home.

**Double oops. Actually Teavana tea leaves.

***Judge Lucero: "This is too rich for fiction."

Let's talk about forensic science: week 4

Thu, 07/27/2017 - 21:47
We will take a break this week from scaring you with science by....scaring you with science. The last thirty years have shown that DNA evidence can be used to convict (or exonerate) someone. It is now 2017. A new technology uses a DNA sample to pull "physical appearance and other information from DNA samples." The process is referred to as DNA phenotyping. Phenotyping attempts to predict likely hair color, eye color, skin, etc. That information is used to create a profile of a suspect (as in the photo below).

Then, if the police get a tip they follow around the suspected person until they can get a DNA sample (from a fork, spit, trash, etc.) and then run that DNA sample. And the odds that the sample will have a significance is high because we already know the person has the same eye color, hair color, etc. There are already examples of using this technology in Louisiana and California. For a discussion of some of the concerns related to phenotyping the ACLU has a section dedicated to the topic.

What to expect when you're expecting a prison term

Tue, 07/25/2017 - 19:47
Do you have clients who are headed to prison?
Don't let them go unprepared.

Next Thursday, August 3, 2017, from 3 p.m. to 5 p.m. at the Kansas City, Kansas, courthouse, US Probation will be holding its quarterly orientation program for people facing federal prison time. Family and counsel are encouraged to attend. Participants may join by videoconference from Wichita and Topeka.

Among other things, attendees will learn (or be reminded of):
  • What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
  • How to self surrender;
  • What to take (and what not to take) to prison;
  • What programs are available in prison (educational, vocational, religious, mental health, medical);
  • What to expect with respect to visitation, phone calls, email, etc.; and
  • How federal prisons help prepare clients for release.

At one program, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was punctuated by the fact that they were celebrating the recent purchase of their first home.

Questions? Call US Probation Officer Sara Valdez Hoffer at 913-735-2402.

Trial Series: In which we excitedly utter words about excited utterances

Sun, 07/23/2017 - 16:37
We recently published a moon-shot post about science and the excited-utterance hearsay exception. While it's a bit too early to declare victory, the Tenth Circuit had this to say last week in United States v. Magnan:
We are well aware that both courts and commentators have criticized the excited utterance exception to the rule against hearsay “on the ground that excitement impairs accuracy of observation as well as eliminating conscious fabrication.” Fed. R. Evid. 803(2) advisory committee’s note. See, e.g., United States v. Boyce, 742 F.3d 792, 796 (7th Cir. 2014); 2 McCormick on Evidence § 272, at 366 (7th ed. 2013). But because Defendant does not ask us to hold the well established exception invalid on its face, we consider his argument that the district court abused its discretion in applying the exception only on the facts presented. This sounds to us like an invitation. Use the neuroscience to challenge the excited-utterance hearsay exception, an issue of which the Tenth Circuit is “well aware,” and appears open to considering.

 ---From Kirk Redmond

Johnson applies to deportation law in Tenth Circuit . . . for now

Tue, 07/18/2017 - 20:32
You've heard a lot from us since Johnson about what prior convictions count as predicate offenses for purposes of the ACCA and the guidelines. One aspect that can easily be overlooked is Johnson’s impact on immigration law, specifically on the deportation of aliens. The Immigration and Naturalization Act provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission” is subject to deportation. 8 U.S.C. § 1227(a)(2)(A)(iii).The term “aggravated felony” is defined in the INA as “a crime of violence (as defined in § 16 of the Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101 (a)(43)(F). The similarities between the definition used in the INA and the definition used in the ACCA of “aggravated felonies” and “violent felonies” has sparked a circuit split regarding whether a void-for-vagueness challenge is applicable to deportations based on the “aggravated felonies” definition.

The Tenth Circuit has lined up with the Sixth and Ninth Circuit in extending the application of Johnson to deportation cases. Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016); Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). In Golicov, the Tenth Circuit agreed with the Sixth and Ninth Circuits that “because deportation strips a non-citizen of his rights, statutes that impose this penalty are subject to vagueness challenges under the Fifth Amendment.” Since Johnson addressed a constitutional vagueness challenge to the ACCA’s definition, then logically the same would apply to the INA.

However, the Fifth Circuit and the Second Circuit have rejected this application of Johnson.Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc); United States v. Hill, 832 F.3d 135 (2d Cir. 2016). The Fifth Circuit pins its conclusion on the premise that the textual differences between § 16(b) and the ACCA’s residual clause are significant enough to spare § 16(b) from being unconstitutional because the ACCA’s residual clause “requires courts . . . to decide whether the ordinary case would present a serious potential risk of physical injury.” In contrast, § 16(b) focuses on whether the conduct ‘involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In the Fifth Circuit’s view, the “[r]isk of physical force is more definite than risk of physical injury,” and “by requiring that the risk of physical force arise ‘in the course of committing’ the offense, 18 U.S.C. § 16(b) does not allow courts to consider conduct or events occurring after the crime is complete." Therefore, § 16(b) is saved by its more “definite” language.

As it stands right now, the Tenth Circuit law is still binding, and any challenge based on the void-for-vagueness doctrine will likely be successful in this circuit. However, the Fifth Circuit view may attract some traction with the new Supreme Court. Dimaya’s petition for certiorari in the Ninth Circuit case consistent with Golicov was granted on September 29, 2016. The case was argued last January, but in June the Court restored it to the calendar for reargument. Thus perhaps in the next term a definite ruling by the Supreme Court will settle this issue, but in the meantime the Tenth Circuit has certainly opened a door for counsel to pursue another avenue in protecting their clients from deportations. ---Contributed by Will Machado, Washburn Law 2019.

Stingrays on trial

Sun, 07/16/2017 - 13:47
As you may recall, we blogged about a Seventh Circuit Stingray (cell-site simulator or CSS) case here last year. In United States v. Patrick, the Seventh Circuit expressed interest in but did not reach the question whether the use of a Stingray implicates the Fourth Amendment. This question has become even more interesting since the Supreme Court's cert grant in Carpenter v. United States (Question presented: "Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment").

Now entering the fray: a suppression motion in United States v. Ellis, being litigated by a former federal prosecutor. Issues include whether the government's warrantless use of a Stingray is a "search" for Fourth Amendment purposes; whether Franks requires government agents to disclose their reliance on Stingrays in search-warrant affidavits; and whether the warrantless use of a Stingray can be excused if the officers acted in "good faith." Here is the government's opposition to the motion. The hearing is scheduled for August 2. Stay tuned.

Prison doesn't cure society's drug ills (well, duh)

Tue, 07/11/2017 - 18:39
Looking for more data to support your variance motions in drug cases? The Pew Charitable Trusts has you covered. In a study publicized last month, Pew examined "whether state drug imprisonment rates are linked to the nature and extent of state drug problems," and found "no statistically significant relationship between states’ drug offender imprisonment rates and three measures of drug problems: rates of illicit use, overdose deaths, and arrests." As Pew notes, these findings reinforce other research casting "doubt on the theory that stiffer prison terms deter drug use and related crime."

Great stuff here, with lots of citations (and links) to research in support of the argument that prison is not an effective drug-control strategy.

Plea colloquy not enough to trigger mandatory minimum (Biglow redux)

Sun, 07/09/2017 - 20:20
Remember the Biglow cases? We blogged about them back in 2015. In Biglow II, the Tenth Circuit made it clear that the mandatory minimum sentences in 21 U.S.C. § 841(b) cannot be triggered on anything less than proof or an admission that X amount was involved in the scope of the criminal activity that the defendant jointly undertook, and that X amount was reasonably foreseeable to the defendant.

We wondered at the time what kind of plea colloquy would satisfy this requirement. Last month, the Tenth Circuit answered that question in United States v. Carillo.

Mr. Carillo was charged with participating in a 100-plus gram heroin conspiracy. This quantity would have subjected him to a mandatory minimum of 5 years in prison. But the only overt act attributed to him in the indictment was one 50-gram sale. Mr. Carillo pleaded guilty as charged without a plea agreement. At his plea hearing, the prosecutor recited Mr. Carillo's involvement in the 50-gram sale, and Mr. Carillo agreed with that recitation. Nothing in the plea record established that the 100-grams-plus quantity charged in the conspiracy as a whole was either within the scope of Mr. Carillo's agreement or reasonably foreseeable to him. Nonetheless, the district sentenced Mr. Carillo to the 5-year mandatory minimum rather than within his 27-33 month guideline sentencing range. Mr. Carillo appealed, attacking his plea in multiple ways. The Tenth Circuit rejected most of his attacks, but held that this record did not establish an adequate factual basis for Mr. Carillo's plea: "[T]o prove the factual basis for Carillo’s conspiracy plea, the record has to show that the 100-gram drug quantity was within the scope of the agreement and reasonably foreseeable to him." (Citing Alleyne). "Carillo's admission to one fifty-gram heroin on day one of the conspiracy---with no further alleged involvement---was insufficient to support his plea to conspiracy to distribute 100 grams of heroin."
So what's the remedy? Withdrawal of the plea? Or can Mr. Carillo stand convicted of a lesser included conspiracy---one that doesn't trigger that statutory minimum? The parties didn't address this issue on appeal, and so the Tenth Circuit punted it back to the district court.

Let's talk about forensic science: week three

Thu, 07/06/2017 - 22:26
Forensic science is (supposed to be) science. And no science is perfect. But forensic science in courtrooms is often introduced as infallible. But there are errors in science. And there are certainly errors in forensic science. And there is where it gets complicated. Because forensic science is often used to convict people of crimes. And the standard of proof to convict someone of a crime is beyond a reasonable doubt. So how can a case built completely or largely on forensic science be proof beyond a reasonable doubt?

These are not easy questions but they are questions we need to be asking in the courtroom. If fingerprint evidence is introduced we need to tell our juries the error rate could be as low as .8% or as high as 34%. Neither should be acceptable. We should request a jury instruction that tells the jury to consider that error rate (and other factors) in determining what credibility should be given to the forensic science introduced in the case. Prosecutor has an expert who says there is no error rate? That claims the method is 100%? Silly. Point out there was literally a whole conference on this topic. They must not have attended it. Point to learned treatises that say otherwise. Ask them to produce a study that supports a 0% error rate.

This is an effective attack in a case where the forensic science is the only evidence connecting a client to a crime. Cold hit fingerprint or DNA hit? Error rate. No other evidence linking the client to the charge? Error rate. Point out that even if the error rate is low, that this is the exact type of case where an error can occur. Other cases usually have other evidence linking a defendant to a crime. A case that wholly relies on forensic science is a ripe case for error and a ripe case for a wrongful conviction.
Don't be scared that the whole case is based on forensic science. That is a sword for your client. Use it.

The cost of freedom: Reforming America's money bail system

Tue, 07/04/2017 - 15:55
Gideon v. Wainwright proclaimed the right of every criminal defendant to the assistance of counsel, regardless of ability to pay. In theory, this guarantees a more even playing field in our criminal justice system. The poor may have been granted access to public defenders, but in a country of extreme wealth and income inequality, they don’t get off that easy.

Enter the money bail system. Hundreds of thousands of people currently sit in jail around the country simply because they cannot afford to make bail while waiting for trial, many for misdemeanor offenses. Money bail schedules predetermine bail amounts without inquiring into ability to pay or any extenuating circumstances. Those who work with incarcerated individuals know all too well what happens to these people, who at this point are “presumed innocent.” On the inside, they face the oppressive conditions of American jails. On the outside, they face the loss of housing, employment, custody of children, and faith in a system that will fairly adjudicate their case. They are more likely to plead guilty, more likely to be convicted at trial, and more likely to receive longer sentences. The message is clear: poverty can make you lose your freedom.The tide is turning on this wealth-based system of pre-trial detention. Last year, two civil rights groups, Texas Fair Defense Project and Civil Rights Corps, and Houston-based litigation shop Susman Godfrey, challenged Harris County, Texas in federal court on the constitutionality of its money bail system. Harris County, Texas is the third-most populous county in the nation and home to 50,000 misdemeanor arrestees every year. In April, Chief Judge Lee H. Rosenthal of the Southern District of Texas issued a monumental 193-page ruling enjoining the money bail system in Harris County on equal protection and due process grounds, in O’Donnell v. Harris County, No. H-16-1414 (S.D. Tex. Apr. 28, 2017). Harris County’s emergency request for a stay of the order was rejected by the Fifth Circuit and by Justice Clarence Thomas on the Supreme Court in June. Harris County has started releasing misdemeanor arrestees and investing in reforming its bail system.This decision will still have to be reviewed in full by the Fifth Circuit and likely the Supreme Court as well, and there are practical questions on implementation. Nonetheless, Judge Rosenthal’s order already has nationwide impact and implications for public defenders. The dynamics of plea negotiations, for example, are clearly different when the client is at home rather than a holding cell.Similar challenges have been brought closer to home. In 2016, Judge Crabtree of the District of Kansas issued an injunction against the money bail system in the City of Dodge City, Kansas. The Court ordered Dodge City to release all non-warrant arrestees on municipal ordinance violations, because the use of a secured bail as a condition of release “implicates the protections of the Equal Protection Clause when such condition is applied to the indigent person.” Martinez v. City of Dodge City, No. 15-CV-9344-DDC-TJJ (D. Kan. Apr. 26, 2016). These decisions show that while the influence of wealth on the criminal justice system is deep and pervasive, the poor and the wealthy alike may soon have an equal opportunity to fight their charges outside the confines of a jail.
For more information: Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (2016), available at https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047

Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization (2016), available at http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf
Full Decision from Judge Lee H. Rosenthal available athttps://static1.squarespace.com/static/57fd58f937c581b957965f8e/t/5904e776db29d65078236db6/1493493624230/25721540-0--16858.pdf

---Contributed by David Huang, Stanford Law 2019

We hold these truths . . .

Sun, 07/02/2017 - 21:23
Happy Fourth of July to all of our patriotic colleagues who have dedicated their lives to defending our Nation's Constitution!

In honor of the holiday, a poem from Harlem Renaissance Poet Claude McKay:

By Claude McKay 

Although she feeds me bread of bitterness, And sinks into my throat her tiger’s tooth, Stealing my breath of life, I will confess I love this cultured hell that tests my youth. Her vigor flows like tides into my blood, Giving me strength erect against her hate, Her bigness sweeps my being like a flood. Yet, as a rebel fronts a king in state, I stand within her walls with not a shred Of terror, malice, not a word of jeer. Darkly I gaze into the days ahead, And see her might and granite wonders there, Beneath the touch of Time’s unerring hand, Like priceless treasures sinking in the sand.  For more poems about this land we call home, check out: I Am Waiting, by Lawrence Ferlinghetti My Grandmother Washes Her Feet in the Sink of the Bathroom at Sears, by Mohja Kahf Shorter American Memory of the Declaration of Independence, by Rosmarie Waldrop Fourth of July at Santa Ynez, by John Haines

Let's talk about forensic science: week two

Thu, 06/29/2017 - 22:38
When we last talked about forensic science a couple of weeks ago, we introduced the concepts of foundational validity (corresponding with 702(c)) and validity as applied (corresponding with 702(d)). How does this play out in the example of fingerprint identification?

As you may know, almost every court to rule on the admissibility of fingerprint evidence (including the 10th Circuit) has allowed the evidence in. So the odds of winning a foundational challenge to fingerprint evidence is not great. But how about a validity as applied challenge? Such a claim would take some pressure off the district court ("judge, we are not saying fingerprint evidence is generally inadmissible, but that the work done in this case does not meet the standard of 702(d)").

How do you do that? Start by getting the examiners entire file, notes, etc. See what procedure was used. Odds on, most examiners use a subjective method. And that method has been criticized by a number of groups including the SWGFAST (Scientific Working Group on Friction Ridge Analysis, Study and Technology), and OSAC (Organization of Scientific Area Committee's for forensic science). So if the examiners opinion is simply based on "I compared the two and they matched" and lacks some objective criteria (regarding quality of the latent, number and uniqueness of comparison points, etc.) you have an argument that the otherwise acceptable criteria was not applied property by this examiner. This is discussed in the PCAST report in more detail.

While the PCAST certainly gives you some support to challenge the foundational validity as well, such a challenge may be difficult to win. Potentially packaging such a challenge under the as-applied theory may give you a better shot. Even with a loss - there are a number of motions in limine that should be filed to prevent the examiner from calling it a "match" or even to prevent the examiner calling the testing "science."

Stay tuned for more discussion of forensic science in the near future!

White Folks and Drug Panic

Thu, 06/29/2017 - 21:53
Today, the Senate tried to sweeten the pot for moderates skeptical about Trumpcare by adding $45 billion dollars to treat opioid addiction. Wait, what? I thought that we were supposed to punishour way out of a drug problem, not treat its victims.
Well, it turns out that draconian drug policy doesn’t apply so much to white folks. What’s the difference between our nation’s history of ramping up drug penalties when we perceive a drug epidemic and the Senate’s response to the opioid problem? Well, maybe, the fact that 90% of new heroin users are white.
The history of American moral panics about drugs is inextricably intertwined with racial prejudice. Popular lore linked Mexicanswith marijuana, a “killer weed” that arouses a “lust for blood”. Cocaine, said the New York Times, turnsa “hitherto inoffensive Negro” into a crazed, murderous superhuman. Crack cocaine, well. Scholars “almost universally agree that drug scares are constructed in the shadow of great racial scares.
Our point is not that drugs are good. Our point is that drug panics are explicitly intended as vehicles of racial discrimination. Read Murakawa, and the articles she cites. The response to the opioid problem, a largely white phenomenon, demonstrates the point. While
opioid use increased in White communities, rather than arresting consumers, regulators mandated physicians to use Prescription Drug Monitoring Programs, instituted voluntary take-back programs for unused medication, and disseminated the opioid overdose reversal medication naloxone, while passing Good Samaritan laws to protect those calling for emergency assistance during an overdose from drug charges.
So, probably, the opioid problem won’t decouple drug policy from racial politics. And probably, the reason why is that ourbrains have more empathy for those of the same race. People who abuse (and sell) opioids get funds for treatment. People who abuse (and sell) drugs that been stigmatized by association with minority communities go to jail. We should probably mention this in our sentencings.

Trial Series: How to subpoena federal agents (part two)

Tue, 06/27/2017 - 17:29
In the first part of this post, we dealt with how to comply with the administrative regulations for issuing and serving a subpoena on a federal employee. In this part, we discuss what to do if the employee’s agency refuses or ignores your request.

In short, the answer is to file a motion to compel. As part of that motion, you must demonstrate that you have first complied with Touhy regulations — i.e., served the correct person with the correct document. Failure to do so will require the district court to deny the motion: “Our record shows no effort by defendant to submit the affidavit or statement summarizing the testimony desired so that the Department could consider the request and determine whether to grant permission for the testimony…” so there was no “error in the court’s refusal to require testimony by the [employee].” United States v. Allen, 554 F.2d 398, 406 (10th Cir. 1977). Only by showing that you have complied with these procedures at the outset will the court be in a position to determine whether it “should have rejected a refusal by the Department due to the constitutional guarantees of the Fifth and Sixth Amendments.” Id. at 407.
Assuming you have demonstrated compliance with Touhy’s initial requirements, your motion to compel must also show that the evidence sought by the subpoena is material to your defense. See United States v. Rivera, 412 F.3d 562, 569 (4th Cir. 2005). This is the same standard that you had to satisfy to get the subpoena from the district court in the first place under Federal Rule of Criminal Procedure 17, so this should not be too tall of a hurdle.
If the department refuses your request outright, you should also make an argument under the Administrative Procedures Act, 5 U.S.C. §§ 701-706. Under the Act, federal courts have the authority to set aside any agency decision that is “arbitrary, capricious, an abuse of discretion,” or otherwise unlawful, including one that violates a “constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(A)-(b). If the court concludes that the agency’s refusal meets any of these definitions, then it may “compel agency action unlawfully withheld… .” 5 U.S.C. § 706(1). These provisions allow you to incorporate your most powerful arguments — your client’s Fifth Amendment right to due process and Sixth Amendment right to compulsory process — directly into your statutory argument.
Complying with Touhy may seem intimidating at first blush. No one relishes paging through CFRs and attempting to decipher them. But they are not as complicated as they might appear. All you must do is write a letter, explain why you want a witness or document, wait for the letter to be ignored or refused, and then draft a motion to compel. As long as you’ve written the right letter and sent it to the right person, a court will rarely deny a request for evidence that is material to your defense. ---Branden Bell