Kansas Federal Public Defender's Blog
Applications for the 2021 Kansas Federal Public Defender's Second Chair program are now being accepted, through May 31, 2021.
Second Chair is a year-long training and mentoring program for attorneys who want to apply for the CJA panel but lack the requisite federal experience. The program is led by the FPD and will take place in Kansas City beginning July 2021.
The program includes an intensive monthly orientation that covers all phases of a federal criminal case and the federal Sentencing Guidelines. Attendance at these sessions is mandatory for continued participation in the program. Sessions will be held remotely if necessary.
Each participant will also be assigned to an experienced mentor attorney to shadow on selected federal criminal cases.
Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the District of Kansas Bench-Bar Committee.
If you would like to apply, please send a letter of interest, resume, and the names of three references to Dana Burton at firstname.lastname@example.org.
Jeff is also a captivating storyteller and teacher. Every time I hear Jeff speak, I learn something completely new or I see something from an entirely different perspective. He is as much a historian as a lawyer. And now one of his presentations is the basis of a feature-length documentary, "Who We Are: A Chronicle of Racism in America." This film just premiered at SXSW last month.
Today, Jeff is the Director of the Who We Are Project. His goal is to correct the narrative about the history of white supremacy and anti-Black racism in America. The Who We Are podcast offers six episodes discussing the history of racism in our country, including voter suppression, mass prosecution, inequities in medical care, and discriminatory housing practices. As Jeff says, we "can't change our future if we don't understand our past." Listen here.
"The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person." The slightest touch might suffice. "[T]he appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain."
So said the United States Supreme Court last week in Torres v. Madrid.
Read Torres for a summary of the two ways in which a seizure may occur:  With contact, regardless of submission; or  without contact, so long as there is (a) an assertion of authority and (b) submission to that authority.
These days, seizures look a bit different, as the Torres majority notes: "There is nothing subtle about a bullet, but the Fourth Amendment preserves personal security with respect to methods of apprehension old and new."
The Supreme Court has observed that prison is not necessarily appropriate for every violation of a condition of release, such as where, as the defendant asserts here, the defendant made bona fide efforts to comply and does not obviously pose a threat to society. Bearden v. Georgia, 461 U.S. 660, 668–70 (1983). “The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty.” Johnson v. United States, 529 U.S. 694, 708–09 (2000). Sending a defendant back to prison for a violation that occurs despite reasonable and good faith efforts to comply may well undermine that transition.
Race is relevant to whether a person consented to a search (or to waive Miranda rights, or to “confess”). See United States v. Mendenhall, 446 U.S. 544, 558 (1980) (it was not irrelevant to the question of consent that “the respondent, a female and a Negro, may have felt unusually threatened by the officers, who were white males”). See also Beau C. Tremitiere, The Fallacy of A Colorblind Consent Search Doctrine, 112 NW. U. L. REV. 527 (2017). That's because the question of consent when it comes to searches and confessions is subjective: whether this person's consent was voluntary.
But race is not relevant to whether a person consented to a police encounter. United States v. Easley, 911 F.3d 1074, 1080-82 (10th Cir. 2018). That's because the initial seizure question is objective: whether a reasonable person would feel free to leave.
Why the difference? Search me. Better yet, read the majority and concurring opinions in the Eleventh Circuit case United States v. Knights, issued last week after the panel revisited its own previous decision on the issue.
The first time around, the Eleventh Circuit published an 11-page unanimous decision affirming the district court's denial of Mr. Knights's motion to suppress after finding that the law-enforcement "interaction" that Mr. Knights challenged was a consensual encounter. Among other things, Mr. Knights had argued that young African-American men do not feel free to walk away from multiple police officers "without risking arrest or bodily harm." Rejecting this argument, the panel concluded that, "[a]lthough the presence of multiple officers and the age and race of a suspect may be relevant factors . . . the totality of the circumstances establish that this encounter was not coercive."
Mr. Knights moved for rehearing. The panel requested further briefing addressing "whether the race of a suspect may be a relevant factor in deciding whether a seizure has occurred under the Fourth Amendment," citing Easley.
Last week, the panel vacated its first decision but reaffirmed the district court's denial of Mr. Knights's motion to suppress, this time in a 51-page published decision (majority + concurrence). This time, the panel held that race is never a relevant factor when deciding the initial seizure question (following Easley).
Judge Rosenbaum concurred in a lengthy must-read opinion. She sets out all of the ways in which the "free to leave" test "is unworkable and dangerous." She recognizes that policing is itself "difficult and dangerous," but "so is being a citizen trying to exercise his Fourth Amendment right to be free from unreasonable seizures"---an "especially tricky dilemma for Black citizens, who studies indicate historically have disproportionately suffered violence in law-enforcement encounters."
Ultimately, Judge Rosenbaum feels bound by existing law to leave race out of the "free to leave" calculus. But she invites the Supreme Court to adopt a modest bright-line, race-neutral amendment to that calculus: officers must clearly advise a person they wish to question whether the person is free to leave, before any questioning begins. If they don't, the encounter is presumptively a seizure. If they do, the encounter is presumptively consensual. Not a perfect solution, but a decent start.
While we wait for that bright-line rule, take Judge Rosenbaum's opinion as a model for arguing that the lack of a free-to-leave advisory is, if not controlling, at least relevant to the analysis and weighs against a finding of a consensual encounter.
Is your client looking at a sentence driven by a sentencing guideline commentary? Does that commentary interpret a genuinely ambiguous guideline? Does the commentary fall within the identified zone of ambiguity? What is a "zone of ambiguity" anyway?
Guideline commentary can only interpret a guideline--it can't add to it. But the test for when courts may rely on the commentary is complicated and disputed.Sixth Circuit (loss commentary) and the Third Circuit (career-offender commentary). Watch for a ruling on the cert petition in Tabb (career-offender commentary; distributed for conference of 3/19/2021).
And urge your district court to wake up from its "slumber of reflexive deference" to the sentencing guidelines commentary.
TrueAlleleis probabilistic genotyping (DNA) software that prosecutors sometimes rely on when traditional DNA testing is inconclusive. Probablistic DNA testing can run different variations or hypothesis on small or complex DNA mixtures. Cybergenetics, which owns TrueAllele, says “it removes “human intervention, error, and bias” to get information “many crime labs can’t.” But how this works—that is, the proprietary source code*−is a protected trade secret.
When trade secrets clash with the Sixth Amendment, the Sixth Amendment wins. At least, it did last week in EDPa in United States v. Ellis. There, the government wants to rely on TrueAllele results as evidence that the defendant’s DNA was on a gun. The government refuses to provide the source code and other data, citing Cybergenetics’ trade-secret claim. The defense sought a subpoena duces tecum, which the government opposed. After ten months of litigation, the federal district court ruled in the defense’s favor, albeit with a protective order. The defense should now be able to determine the basis of the results and, if necessary, challenge the government’s evidence under Daubert.
The ACLU and Electronic Frontier Foundation filed an amicus brief in support of the defense subpoena. From theEFF: “DNA analysis programs are not uniquely immune to errors and bugs, and criminal defendants cannot be forced to take anyone’s word when it comes to the evidence used to imprison them.” Miscoding in STRmix, a TrueAllele competitor, revealed misleading results. On this point, a New Jersey Superior Court opinion issued Feb. 3, 2021,State v. Corey Pickett, observed,
The defense expert's access to the [TrueAllele’s] proprietary information is directly relevant to that question and would allow that expert to independently test whether the evidentiary software operates as intended. Without that opportunity, defendant is relegated to blindly accepting the company's assertions as to its reliability.
Takeaway: challenge science that relies on proprietary software, such as DNA or facial recognition or location-monitoring. And Tom Bartee's reminder: discovery under a protective order is commonplace in trade secret litigation, so courts should reject the claim that trade secret = not discoverable, period.
*Source code is the string of commands or instructions that tells the computer how to execute the program.
Cert grant: When are two crimes "committed on occasions different from one another" for ACCA purposes?
A person convicted of possessing a firearm after a felony conviction faces a significantly higher sentence under the ACCA if that person has at least three prior convictions for qualifying crimes "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). But what does "committed on occasions different from one another" mean?
Under Tenth Circuit law, those occasions may be separated by very little space and time. See United States v. Tisdale, 921 F.2d 1095 (1990). Mr. Tisdale had three prior burglary convictions that all occurred on the same night, in the same mall. But they were committed "successively" (rather than simultaneously), and they involved different locations within the mall. They were therefore committed "on occasions different from one another." ACCA sentence affirmed.
Fast forward a few decades. In United States v. Wooden, 945 F.3d 498 (6th Cir. 2019), the Sixth Circuit affirmed an ACCA sentence based on a similar set of prior convictions, this time ten burglaries of ten separate units within a storage facility on the same night.On Monday, the Supreme Court granted Mr. Wooden's pro se petition for a writ of certiorari to answer this question: "Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were 'committed on occasions different from one another' for purposes of a sentencing enhancement under the Armed Career Criminal Act."
Read the cert documents here, and be sure to preserve this issue in your own cases.
Fun fact: When Congress first created supervised release in 1984, it did not provide district courts with authority to revoke supervision and return a person to prison. Congress assumed, apparently, that the threat of being held in contempt of court would ensure compliance with court-ordered conditions. This approach lasted a whole two years.
But that's not what this post is about. This post is a reminder of two simple statutory limits when it comes to imposing or revoking supervision: neither of these judicial acts can be taken for retributive purposes.
18 U.S.C. § 3583(c) directs a court considering the imposition of supervised release to consider most of the 18 U.S.C. § 3553(a) factors, but that list excludes factor (a)(2)(A). Which factor is that? It is the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."
Likewise, 18 U.S.C. § 3583(e) directs a court considering the revocation of supervised release to consider the same list of factors, which, again, excludes factor (a)(2)(A).
What does this mean? It means that district courts are statutorily prohibited from imposing or revoking supervision for retributive purposes. And that's because the purpose of supervision is to help people, not to further punish them.
Want to know more? Check out Schuman, Jacob, Revocation and Retribution (February 15, 2021), Washington Law Review, forthcoming, available here. Learn the history and purpose of these provisions, and prepare to object to improperly based supervision and revocation orders.
Holistic defense is about recognizing and addressing the bigger picture beyond the specific criminal charges in an individual case. Data collection is key to this effort as it helps us organize and connect disparate pieces of the puzzle. Data analysis enables us to identify patterns, both positive and negative, in our clients’ lives, in our defense work, in the criminal legal system, and in society.
This approach will allow us to answer questions such as:
• What are the demographics of our clients?
• What are the most common resources our clients need to be successful?
• What defense strategies and tactics result in the lowest sentences for our clients?
• What kind of sentences do our clients of color get for a particular federal charge as compared our white clients?
• What are the release/detention rates for our clients from different demographics?
• How do our clients assess our representation? How can we improve?
• How many searches has a particular police officer conducted that have been found unconstitutional?
• Have particular police officers been found to lack credibility with the court?
• Has a particular expert’s testimony been limited or prohibited?
We have seen how the government and the business world have used data collection and analysis to super-charge their work. We know that harnessing these tools will make us better advocates. You can read more about the position here. Our ideal candidate has experience in data analytics, statistics, and public defense. If you have relevant skills and experience, please apply by March 15, 2021.
-- Zay Thompson, FPD Investigator, and Melody Brannon, Defender
Stuff is happening.
Last Friday, the acting US Attorney General rescinded the 2017 Sessions Memo instructing prosecutors to "charge and pursue the most serious, readily provable offense," and reinstated a 2010 Holder Memo instructing prosecutors to individually (and fully) assess each case when making decisions regarding charging, plea negotiations, and sentencing advocacy.
Last Wednesday, the acting US Attorney General rescinded the zero-tolerance policy with respect to unlawful-entry prosecutions.
The bottom line in both memos was this: seeking justice in every case "requires considerable judgment." Policies that don't take individual circumstances into account are inconsistent with justice.
It's a good start. But it's only a start, intended as a temporary measure "while longer-term policy is formulated." Stay tuned . . .
This week, we're celebrating these recent Fourth Amendment wins from the Tenth Circuit (with a plus-one from S.D. Ohio):
Abandonment, inventory search, impoundment, community caretaking, Miranda
United States v. Chavez is a fun-filled ride through a number of Fourth Amendment issues (and one bonus Fifth Amendment issue!).
After a brief car chase, Deputy Castaneda found Mr. Chavez's empty car parked, engine running, lights still on, at the end of a dirt road next to a trailer and an RV. The deputy called for backup. One responding officer opened the driver-side car door to put the car in park, and saw what he thought was a gun. He left the gun there and shut the door.
Mr. Chavez was found nearby. Deputy Castaneda, having been advised of the gun, asked Mr. Chavez (without Mirandizing him) whether he was a felon. Mr. Chavez said that he was. The deputy arrested Mr. Chavez and walked him past the car. Deputy Castaneda looked in the car window and also saw the gun.
Officers proceeded to inventory the car in anticipating of impounding it. After Deputy Castaneda had removed the gun, a woman appeared from the trailer and said that the car was hers, and that Mr. Chavez sometimes drove it. The officers released the car to the woman.
Law exam question: Must the gun be suppressed as unlawfully seized and retained?
First, Mr. Chavez had a reasonable expectation of privacy in the car. He left the car on a private dirt road, just outside his own trailer. This was not abandonment for Fourth Amendment purposes.
Second, while the officers saw the gun in plain view, they did not have authority to seize the gun. Their anticipated impoundment of a car parked on private property violated local policy, and therefore the inventory search was invalid. Additionally, once the impoundment was called off, the deputy had no authority to hang onto the gun.
Third, seizing the gun (and keeping it) was not justified under the community-caretaking doctrine. It would have taken "a daring child, vandal or thief" to enter the private road, burgle the car and steal the gun, thereby putting public safety at risk.
Fourth, Mr. Chavez's admission to being a felon did not justify seizing the gun, because the admission was not Mirandized. The Supreme Court's holding in Patane (that the fruit of un-Mirandized voluntary statements need not be suppressed) does not apply here, because here the government failed to directly address voluntariness in the district court (which therefore found the admission involuntary) or to argue Patane on appeal.
Fifth, seizure and retention of the gun was not justified under either the automobile doctrine or the plain-view doctrine.
In United States v. Williams (unpublished), the government conceded that the constitutionality of a "high-risk" "felony car stop" of Mr. Williams hinged on whether the officers conducting the stop had reasonable suspicion to believe that a murder suspect was in the car.
Evidence that (1) Mr. Williams had been seen at two apartments associated with the suspect a month earlier, and that (2) Mr. Williams's car had just left a 75-100-unit apartment complex where the suspect's girlfriend was believed to live did not add up to reasonable suspicion that the suspect was in Mr. Williams's car at the time of the stop.
Black male + hoodie ≠ reasonable suspicion
Here's what dispatch reported: A Black male (possibly a 14-15 y/o student) with dreads, a black hoodie, and tan pants flashed a gun in a K-12 school parking lot. On foot, headed towards the park.
Here's who six officers surrounded in a small park restroom lobby: Mr. Johnson, a 27-year-old Black man (who looked even older than 27) with visible facial hair and facial tattoos, no apparent dreads, wearing a black coat, a hoodie, a beanie cap, and light grey sweatpants.
During about a minute of conversation, Mr. Johnson truthfully denied being at the school, explained that he had just arrived at the park by bus, and said that he did not want a pat-down. An officer then directed Mr. Johnson to raise his shirt. This led to the discovery of a gun on Mr. Johnson's person, and Mr. Johnson's arrest for being a felon in possession of a firearm.
This nonconsensual Terry stop and pat-down was not supported by reasonable suspicion. So held District Court Judge Michael R. Barrett in United States v. Johnson, 2021 WL 253973 (S.D. Ohio Jan. 25, 2021). It seems obvious, doesn't it? And yet . . . .
Officer chatter caught on their recorders after the arrest included comments that Mr. Johnson was at the wrong place at the wrong time, and that it was "weird" that Mr. Johnson declined to agree to a pat-down. Nonetheless, the officers blithely assured each other that they "had enough to pat him down anyway."
The district court was sufficiently bothered by the officers' nonchalance to warn them directly of the seriousness of their actions, quoting Terry itself:
[I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’[ ] It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
Lessons learned? (1) Always reread the foundational constitutional cases--they contain much wisdom; and (2) always, always watch the videos and listen to the tapes.
What the Sentencing Commission was supposed to do: promote “sound sentencing practices”
The Sentencing Reform Act of 1984 envisioned a Commission overseeing a “research and development program” for implementing “sound sentencing practices,” with the USSC systematically collecting and disseminating research concerning sentencing practices and their effectiveness, including “information concerning sentences actually imposed, and the relationship of such sentences to the factors set forth in section 3553(a).” 28 U.S.C. § 995(a)(12), (15), (16). Section 3553(a) references several factors, but the four primary sentencing purposes stand out: retribution, deterrence, incapacitation, rehabilitation. So the USSC website’s search tool should be a portal to mountains of data and analysis on these four primary sentencing purposes, all gathered and curated by the Commission since the late 1980s. It’s not.
What the Sentencing Commission does instead: promote a “preference for imprisonment”
For years, the Sentencing Commission has focused its considerable resources on collecting data and reporting on post-sentencing, post-release “recidivism.” This focus has recently been subjected to a withering critique in The U.S. Sentencing Commission’s Recidivism Studies: Myopic, Misleading, and Doubling Down on Imprisonment, to be published in the next edition of the Federal Sentencing Reporter. The author, Professor Nora V. Demleitner, shows that the Commission’s recidivism studies subtly promote imprisonment in several ways, including by:
• framing recidivism data negatively, i.e., describing the data in terms of failure rates rather than desistance rates;
• defining “recidivism” over-broadly, including not only convictions for serious crimes, but also mere arrests that didn’t result in conviction, as well as technical violations of supervision (even the Administrative Office of the U.S. Courts’ annual recidivism study doesn’t do that); and
• failing to consider the criminogenic effects of imprisonment or the rehabilitative value of prison and reentry programming, and the influence of post-sentence supervision.
The article contrasts the USSC’s approach with the more balanced approach of Germany, where “recidivism” is defined more narrowly, and desistance rates are emphasized over failure rates.
Do your judges rely on recidivism rates when sentencing? If so, read this article, and prepare your defenses to the wrongheaded notion that “the past predicts the future.”
Thanks to Tom Bartee and Melody Brannon for this post.
President Biden has pledged to "take bold action to advance a comprehensive equity agenda to deliver criminal justice reform." To that end, this Tuesday, January 26, is "equity" day on the White House agenda. What does that mean?
In other fun news, last week the Fifth Circuit told CoreCivic that yes, even CoreCivic is bound by the Trafficking Victims Protection Act not to subject the people in its custody to forced labor. But wait!--CoreCivic complained--if we are human traffickers, then so are all those parents who make their kids do chores. The Fifth Circuit was neither amused nor persuaded. The case now goes back to the district court for further proceedings on the plaintiff's claim that CoreCivic's work programs are not voluntary.