Kansas Federal Public Defender's Blog

Subscribe to Kansas Federal Public Defender's Blog feed
Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger675125
Updated: 1 hour 52 min ago


Thu, 07/02/2020 - 12:38

In honor of Independence Day, we offer the words of Frederick Douglass, excerpted from his 1852 speech to the Rochester Ladies' Anti-Slavery Society: "What To The Slave Is The Fourth Of July?"
Feeling themselves harshly and unjustly treated by the home government, your fathers, like men of honesty, and men of spirit, earnestly sought redress. They petitioned and remonstrated; they did so in a decorous, respectful, and loyal manner. Their conduct was wholly unexceptionable. This, however, did not answer the purpose. They saw themselves treated with sovereign indifference, coldness and scorn. Yet they persevered. They were not the men to look back.As the sheet anchor takes a firmer hold, when the ship is tossed by the storm, so did the cause of your fathers grow stronger, as it breasted the chilling blasts of kingly displeasure. The greatest and best of British statesmen admitted its justice, and the loftiest eloquence of the British Senate came to its support. But, with that blindness which seems to be the unvarying characteristic of tyrants, since Pharaoh and his hosts were drowned in the Red Sea, the British Government persisted in the exactions complained of.The madness of this course, we believe, is admitted now, even by England; but we  fear the lesson is wholly lost on our present ruler.* * *What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour. * * *Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.
Read the entire speech here. And have a safe holiday.

Judicial endorsement of police "experts"

Tue, 06/30/2020 - 18:09
When are police officers "experts," and what message does their designation as experts send to the jury?

In United States v. Cristerna-Gonzalez, the Tenth Circuit clarified the law governing “expert” testimony by the police.

First, the Court clarified the boundary between “Opinion Testimony by Lay Witnesses,” Fed. R. Evid. 701, and “Testimony by Expert Witnesses,” Fed. R. Evid. 702. The lay opinion rule “does not permit a lay witness to express an opinion as to matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness.” This means that “knowledge derived from previous professional experience falls squarely within the scope of Rule 702 [governing expert testimony] and thus by definition outside of Rule 701 [lay opinion testimony].” In the context of police testimony purporting to interpret drug code language, “testimony based on knowledge derived from the investigation of the case at hand is typically regarded as lay testimony, opinion testimony premised on the officer’s professional experience as a whole is expert testimony.” Although not addressed in Cristerna-Gonzalez, the lay/expert boundary is crucial because it determines whether a summary of expert testimony must be provided and whether Daubert is implicated.
Second, citing a federal rules of evidence treatise and the ABA’s Civil Trial Standards, the Cristerna-Gonzalez panel signaled its disapproval of the common prosecution tactic of causing the trial judge to endorse a witness as an “expert” in front of the jury. The panel cited particularly helpful language from the comment to the relevant ABA Civil Trial Standard:[T]here is no need for the court to announce to the jury that it has found that a witness is an expert or that expert testimony will be permitted. The use of the term “expert” may appear to a jury to be a kind of judicial imprimatur that favors the witness. Because expert testimony is not entitled to greater weight than other testimony, the practice of securing what may appear to be a judicial endorsement is undesirable.The takeaway?
1. Object at trial to expert testimony from police officers if the government did not comply with the notice requirements of Rule 16 or any pretrial scheduling order.
2. Has there been notice? Before trial, challenge the officer's qualifications and the basis for his or her proposed testimony (is it really based on sufficient facts or data?). In other words, put the government through its Rule 702/Daubert paces.
3. Did you lose that challenge? Move the district court in limine to prevent the government from seeking to have the court endorse the officer as an "expert" in front of the jury.
--Tom Bartee

Tenth Circuit Breviaries

Sun, 06/28/2020 - 18:38
Fourth Amendment

In Hinkle v. Beckham County, Oklahoma, the Tenth Circuit held that an officer had probable cause to arrest based on information that the person arrested owned (or had a connection with) a trailer that had been reported stolen. It did not matter that the person informed the officer that the information was mistaken---"a soon-to-be-arrestee's bare proclamations of innocence" do not dissipate probable cause.

But the arrestee's body-cavity strip search upon admission into the jail was unreasonable under the Fourth Amendment. There was no justification at the time of the search--that is, no decision had been made that the arrestee would be placed in the jail's general population (in fact, he was placed in segregation), and there was no cause to believe that he was concealing evidence of a crime.

Evidentiary Issues

In United States v. Cristerna-Gonzalez, the Tenth Circuit affirmed Mr. Cristerna-Gonzalez's drug convictions, finding no reversible error in (1) the unobjected-to admission of expert law-enforcement testimony (no plain-error); (2) the unobjected-to admission of modus-operandi evidence consistent with Fed. R. Evid. 404(b) (no error, much less plain error); or (3) the admission over objection of irrelevant and prejudicial testimony suggesting a connection between this case and a notorious drug cartel (this was error, but it was harmless).

Sentencing: Procedural & Substantive Reasonableness

In United States v. Pena, a carjacking/gun/methamphetamine case, the Tenth Circuit affirmed an upward-departure sentence of 360 months' imprisonment--more than twice the high end of Mr. Pena's guidelines range. The district court addressed the statutory factors and adequately explained the sentence.

Dig. Dig deeper.

Thu, 06/25/2020 - 16:51
Racial profiling. Excessive force. On the street, police misconduct looks obvious. In the courtroom, it's a different matter. How do we go about proving an officer's race-based motivation, or a police department's take-no-prisoners culture? There are loose lips and smoking guns out there. If we just dig deeply enough, we might find, for instance, that the department's training materials include this image (small print above image: "protecting and serving the POOP out of you"):

Or we might find that the department's training materials include---grossly-out-of-context---a link to a Chris Rock comedy routine replete with fake and real video clips of police officers beating Black people, including Rodney King.

That evidence came to light in the excessive-force case Wright v. City of Euclid.

Is the Euclid Police Department unique? I doubt it. If we look a little harder, what else might we find?

Remember, for instance, Foster v. Chatman, in which a state open-records request yielded documentary evidence that the prosecutors' peremptory strikes of Black prospective jurors at Timothy Foster's capital-murder trial were racially motivated.

Evidence is out there. We are unlikely to get it through criminal discovery. So let's put on our investigator pants and get to work.

The Doctrine of Chances and Rule 404(b)

Tue, 06/23/2020 - 19:06
While driving drunk in the wrong lane of a highway inside the Ute Mountain Ute Reservation, Timothy Merritt struck an oncoming car, killing one of that car’s passengers and injuring another. A jury convicted him of second-degree-murder and assault.

On appeal, the Tenth Circuit approved the admission at Merritt’s trial of three other DUI-related acts. Two of the other acts were prior convictions. The third was a drunk-driving arrest that occurred while Merritt was on bond in the federal case.
The Tenth Circuit reasoned that other acts tended to prove that Merritt had the requisite awareness of the serious risk of harm associated with drunk driving, rendering his decision to drive reckless and wanton, thereby supporting a finding of malice aforethought. The Tenth Circuit rejected Merritt’s argument that driving drunk does not evince an awareness of the riskiness but rather suggests the opposite.
In assessing the admissibility of the drunk driving incident while on bond, the Tenth Circuit considered the government’s argument that the similarity of that incident to the charged crime implicated the “doctrine of chances.” Under this doctrine, the similarity of the charged conduct to other conduct increases the likelihood that the incidents are not innocent random events. After seemingly signaling that the doctrine might apply, the Court decided not to decide, reasoning that any error in the admission of the evidence was harmless.
Applying the doctrine of chances to prove mens reais fraught with the danger that the jury will misuse the other-crimes evidence. As with other-crimes evidence generally, the problem is one of dual relevance: the evidence supports the improper inference of bad character as well as the proper inference of intent. The improper chain of inference, prohibited by FRE 404(b), has two steps. Step One involves inferring from a past crime that the defendant has a bad character. Of course, this inference is itself empirically weak. Beyond that, the inference creates the risk that the jury might convict just to punish the defendant for her criminal past. Step Two involves inferring from this bad character that the defendant must be guilty. This creates the risk that the jury will overvalue the bad character evidence, failing to recognize that bad character is empirically a poor predictor of behavior on a particular occasion.
When used to prove the actus reus (as opposed to the mens rea) of a crime, the doctrine of chances does not necessarily implicate character concerns. A classic use of the doctrine is to prove that an initially unexplained death that is discovered to be similar to other deaths associated with the defendant was actually a homicide. The warrant for this inference is that common sense tells us that these similar deaths are very unlikely to represent mere coincidences. This use of the doctrine certainly implies the defendant’s bad character, but that implication is a side effect, not a necessary link in the inferential chain. But when the doctrine of chances is ostensibly used to prove mens rea, the close connection between a person’s intent and their character makes it unlikely that a lay jury could follow a limiting instruction—even crafting an intelligible instruction conveying this distinction would be difficult. If nothing else, Merritt at least flags the issue, allowing defense lawyers to anticipate and prepare to battle its use.
---Tom Bartee

Tenth Circuit Breviaries

Sun, 06/21/2020 - 16:48
Fourth Amendment (traffic stop)

The 15 minutes it took an officer to gather information from the El Paso Intelligence Center (EPIC) did not unreasonably extend a traffic stop where the parties agreed that the officer had reasonable suspicion of drug trafficking. So concluded the Tenth Circuit in United States v. Morales, reversing the district court's suppression order.

Fifth Amendment (confessions)

An FBI agent interviewed Shane Young in a county jail. The agent showed Mr. Young a federal warrant for his arrest and said "I'm on your side." The agent proceeded to advise Mr. Young that he had talked to the judge who had reviewed the case, and that Mr. Young could "buy down" his time with the judge by giving information. The agent also misadvised Mr. Young about the amount of time he was facing. These were false representations of law and fact that rendered Mr. Young's resulting statements involuntary, and the district court should have granted his motion to suppress. United States v. Young.

Sixth Amendment (counsel)

A mid-trial waiver of the right to counsel was not made knowingly and intelligently in United States v. Hamett. The district court (1) failed to discuss the the charges with Mr. Hamett and refused to give him time to review the elements as set out in the jury instructions before he decided to waive counsel; (2) incorrectly advised Mr. Hamett that he was facing up to 20 years' imprisonment, when in fact one charge against him carried a maximum of life imprisonment; and (3) failed to apprise Mr. Hamett of any possible defenses.

Fed. R. Evid. 404(b)

In United States v. Merritt, a DUI-based second-degree murder case, the Tenth Circuit approved the admission of other DUI-related incidents at trial. We will blog about this case in more detail later this week.

Collateral Estoppel

In 2016, in United States v. Arterbury, a district court in Oklahoma suppressed child pornography seized as a result of the PlayPen NIT warrant, finding that the warrant was void ab initio, and therefore Leon's good-faith exception did not apply. The government appealed, but then dismissed its appeal and asked the district court to dismiss the indictment against Mr. Arterbury without prejudice. The district court granted the motion.

Fast forward to 2017 and United States v. Workman, 863 F.3d 1313 (10th Cir. 2017), an appeal from the district court of Colorado. There the Tenth Circuit held that Leon's good-faith exception applied to the execution of the same PlayPen NIT warrant.

In 2018, the government secured a second indictment against Mr. Arterbury based on the same evidence as the first indictment. Mr. Arterbury moved the district court to enforce its original suppression order. The district court denied the motion; Mr. Arterbury entered a conditional plea and appealed.

In 2020, the Tenth Circuit held that the district court erred in declining to enforce its original suppression order, because Mr. Arterbury had "established the elements of federal criminal collateral estoppel under the common law." The what elements under the what law? Read Arterbury for a primer on the difference between collateral estoppel based on double jeopardy/due process, and collateral estoppel based on the federal common law.

Rethinking traffic stops

Thu, 06/11/2020 - 18:35
Whether you're a pedestrian stopped for walking in the street, a bicyclist stopped for riding on the sidewalk, or a driver stopped for anything from a busted taillight to speeding, traffic stops can be annoying. Or frightening. Or deadly.
Why does this keep happening?
Criminal law: the stinginess of the exclusionary rule
The exclusionary rule was designed to deter police misconduct during traffic stops and otherwise. It's a start. But it will never be enough, for a host of reasons, including the fact that the rule is defined by judges and justices who are far removed from the reality of the streets. See Hudson v. Michigan, 547 U.S. 586, 599 (2006) (expansion of exclusionary rule not necessary to deter violations of knock-and-announce rule because "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously").
Civil law: qualified immunity
In Hudson, Justice Scalia cheerfully assured us that the exclusionary rule did not need to be expanded because, "[a]s far as we know, civil liability is an effective deterrent" to police misconduct. Id. at 598.
Earlier this week, the Fourth Circuit put the lie to that nonsense in a decision decrying how perverted the qualified-immunity doctrine has become:Wayne Jones was killed just over one year before the Ferguson, Missouri shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept. The district court’s grant of summary judgment on qualified immunity grounds is reversed, and the dismissal of that claim is hereby vacated.Estate of Jones by Jones v. City of Martinsburg, W. Va, ___ F.3d ___, 2020 WL 3067925 (4th Cir. June 9, 2020).

Rethinking the law: eliminate traffic enforcement
As dewy-eyed lawyers, we want to believe that the courts and the constitution can remedy police violence. But maybe it's time to think beyond the courtroom walls. Can safe streets and sidewalks be achieved without the intervention of armed, militarized agents of the state? Talk amongst yourselves. And check out these statements from the Minneapolis group Our Streets Minneapolis, and the national group Safe Routes Partnership.

Tenth Circuit Breviaries

Sun, 06/07/2020 - 17:27
Fourth Amendment

While an officer may ask a passenger for identification during a traffic stop, the passenger's failure or refusal to provide it does not establish probable cause for an arrest. This point of law is clearly established in the Tenth Circuit. And thus the district court properly denied an arresting officer qualified immunity in Corona v. Aguilar.

A district court must not "view the evidence in the light most favorable to the government" when deciding a motion to suppress. Rather, it must "assess the credibility of witnesses and determine the weight to give the evidence presented." So the Tenth Circuit reminded district courts in United States v. Goebel.

In Goebel, the Tenth Circuit also held that a police officer had reasonable suspicion to detain Mr. Goebel based on a combination of factors (that you can read for yourselves), and that the detention was not unreasonably prolonged. Nor was any delay causally linked to the officer's discovery of evidence. 

Fifth Amendment

A brief conversation on a public sidewalk between the officer and Mr. Goebel while Mr. Goebel was detained was not a custodial interrogation for Miranda purposes. And Mr. Goebel's other statements were Mirandized, knowing, and voluntary (and not incriminating in any event).


No plain error in United States v. Trujillo, where the district court accepted Mr. Trujillo's 18 U.S.C. § 922(g) guilty plea without advising him that he was required to know he was a felon to be convicted. This was not structural error (the Tenth Circuit disagrees with the Fourth Circuit here), and Mr. Trujillo failed to show (under the third plain-error prong) that absent the error, he would not have entered the plea (given his 6 prior felonies and 4 prior years in prison). And even if he had met that prong, he would lose under the fourth prong: "Where the evidence of Defendant's knowledge of his felony status is 'overwhelming and uncontroverted,' the real threat to the 'fairness, integrity, and public reputation of judicial proceedings' would be if Defendant were permitted to withdraw from a plea unequivocally supported by the facts and for which Defendant has no defense."

Sentencing: substantive reasonableness

In United States v. Sandoval, the Tenth Circuit rejected Mr. Sandoval's claim that his 27-month within-guideline prison sentence for assault was substantively unreasonable. More specifically, the Circuit held that USSG  § 2A2.2, the assault guideline, is not manifestly unreasonable because it does not distinguish between intentional and reckless conduct. Nor was a downward variance required by the fact that Mr. Sandoval's adjusted offense level for a reckless assault was only one level below the base offense level for involuntary manslaughter. 

A Police State in America?

Thu, 06/04/2020 - 21:18
The Insurrection Act of 1807. The Anti Riot Act of 1968. What are these tools, and when can our government use them against us, the people?

In an opinion piece today in the New York Times, Federal Public Defenders Lisa Lorish and Juval Scott trace the history of these provisions and warn us about their reach. AG Barr has threatened to criminally charge protesters under the Anti Riot Act---a law that one district court has found substantially infringes on the constitutional rights to free speech and free assembly. Take heed, defenders, and get ready.

Joint Statement From the Federal Defenders on the Killing of George Floyd

Wed, 06/03/2020 - 20:03
The moral arc of the universe, as Dr. Martin Luther King Jr. said, bends towards justice. And yet, we all saw that arc snap again under a police officer’s white knee on George Floyd’s Black neck for eight minutes and forty-six seconds. That knee has been placed on too many Black necks before and too often without repercussions.

This time must be different. While we can kneel in solidarity with Mr. Floyd, we also must stand up and demand that racism, overt and implicit, be acknowledged and confronted.
As federal public and community defenders, we represent the overwhelming majority of those charged with crimes in federal court, most of whom are minorities, of all colors and orientations. We have witnessed “wars” on drugs and crime become dog whistles for hate and racism. Intentions to make communities safe are hijacked by other insidious agendas. The war on crime is a new Jim Crow that permeates our criminal justice system. Daily, we see charges that are too harsh, sentences that are too long, and a system that turns a blind eye to oppressive structural racism because it seems to fear “too much justice.”
George Floyd died face down, gasping and begging to breathe. It is well beyond time for us all to say, “Enough.”
We are better than this; we can be just and empathetic. We can do what is right and what is moral. We can keep communities safe by holding out our hand to help, aware of our own failings and biases.
And in this crucible of anger, we take a breath, and begin to repair the moral arc and bend it back towards justice.
As federal defenders, we stand with many like George Floyd who have been held down and denied their humanity. It is our job, our calling. It is our privilege. For George Floyd and all of our clients, we renew our longstanding commitment to fight daily for equal justice.
* * * * *
Read the statement with signatures on fd.org here.

One-third of all Americans killed by strangers are killed by police

Sun, 05/31/2020 - 12:25
Last month, George Floyd was murdered by a Minneapolis police officer. The criminal complaint filed late last week against the officer states that the officer "had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous."
Police kill all the time. Indeed, there were only 27 days in 2019 when police did not kill someone. And law enforcement’s victims are much more likely to be black.
Horrific, and likely underestimated. Statistician Patrick Ball, who has tracked state killings in 30 countries, points out that when a police killing occurs on video, as Mr. Floyd’s did, “police are very likely to report this case to the FBI because they know the FBI will hear about it.” But “conversely, if a person is killed by police without the presence of witnesses,” the killing “is unlikely to be reported at all.” So unless the killing was recorded on camera, it is unlikely to be reported in national statistics.
Using advanced statistics to account for unreported police killings, Mr. Ball’s research concludes that “eight to ten per cent of all American homicide victims are killed by the police. Of all American homicide victims killed by people they don’t know, approximately one-third of them are victims of the police.” While national statistics may not accurately record police killings, local communities know. Justin Feldman, a social epidemiologist at the NYU School of Medicine, explains that “if it’s not you being killed by police, it’s someone you know or someone in your community.”
Police have recently killed black men for suspected forgery, selling cigarettes, reaching for a driver’s license, and sitting at home. These killings have a profound effect on the communities they traumatize. 
In a rare departure from the norm, the officer who killed Mr. Floyd has now been charged with third-degree murder and second-degree manslaughter. But the charges may not represent a full-throated prosecutorial response. And they are certainly not enough to alleviate the effects of centuries of state-sponsored violence.
And so. The next time a judge wonders why your client ran from the police, explain that your client knew that his life was in danger, and that the police would not be held accountable for what might happen.
Some courts have recognized this reality. See, e.g., United States v. Brown, 925 F.3d 1150, 1156 (9th Cir. 2019) (“flight can be a problematic factor in the reasonable suspicion analysis because some citizens may flee from police for their safety”; “[t]here is little doubt that uneven policing may reasonably affect the reaction of certain individuals—including those who are innocent—to law enforcement”) (citing Illinois v. Wardlow, 528 U.S. 119, 126-40 (2000) (Stevens, J., concurring in part and dissenting in part)); Miles v. United States, 181 A.3d 633, 641-42 (D.C. App. 2018) (discussing reasons people might flee, including fear in the face of police shootings of African Americans); Commonwealth v. Warren, 58 N.E.3d 333, 342 (Mass. 2016) (“the finding that black males in Boston are disproportionately and repeatedly targeted for [police] encounters suggests a reason for flight totally unrelated to consciousness of guilt”); Dancy v. McGinley, 843 F.3d 93, 110 (2d Cir. 2016) (“Indeed, it is natural for people to take an interest in police activity nearby out of a desire to avoid some minor misstep, such as a minor traffic violation, which would involve them unnecessarily with the police.”). Help your court understand it as well.
--From Kirk Redmond

Bad (drug) dog

Thu, 05/28/2020 - 14:27

A district court in Utah recently issued a must-read suppression order on the subject of dog sniffs and drug-dog training and certification. In this particular case, officers had been conducting surveillance of the defendant. One officer conducted a traffic stop with a canine unit purposefully nearby to come do a sniff. The dog, Tank, did not sit or lay down, which was his trained response to smelling drugs. Yet the handler officer "perceived" that Tank had alerted, based on his experience with the dog. He searched the car and found a small amount of marijuana and a gun. 

The court recognized that a dog alert can provide probable cause to search, but held that an alert should be distinct, verifiable, and objective. "Behavior by the dog that is so subjective that only the handler may be able to identify it risks allowing a search in violation of the Fourth Amendment that is based on nothing more certain that the officer’s hunch that drugs may be present." The court also expressed concern that the “totality of the circumstances suggests that [the handler] was already of the belief drugs were in the car and that this belief influenced him, perhaps even inadvertently, to interpret Tank’s uncertain 'alerts' as supporting a conclusion of probable cause."
The court also discussed its doubts about Tank's training and certification. An expert testified about the importance of a "blind training" for a drug dog, where the handler does not know where drugs are hidden during training. Blind training prevents "handler bias" or "cuing," where the handler consciously or unconsciously directs the dog to the drugs. The Utah training program does not use blind training at all. The court found that this "failure to implement double-blind training raises questions as to the independence of its K9s and casts doubt as to whether the K9s are alerting or indicating because they actually detect the odor of narcotics or because they have learned that displaying such action is the best way to please their masters." 
The takeaway: dog alerts are not unassailable. Make sure to request and review the training and certification of the dog if you have a search based on a drug-dog alert.
Note: We are sure that Utah's dogs are very good dogs. 

Is your client's criminal history a mitigating---rather than an aggravating---sentencing factor?

Mon, 05/25/2020 - 18:17
Criminal history is always a driving force at sentencing. A force towards more and longer incarceration, that is. Why? Are the reasons empirically sound? Is there another way to look at a client's prior record?

In Paying for the Past, Julian V. Roberts and Richard S. Frase critically analyze the justifications for prior-record sentencing enhancements, and conclude that they come up short---especially when measured against the negative consequences of such enhancements.

In The Paradox of Recidivism, Christopher Lewis argues not only that prior-record sentencing enhancements are on empirically shaky ground, but also that there should be a presumptive prior-record sentencing discount, especially given societal barriers to reentry that might explain and excuse recidivism.

Both resources are worth a look. Let's rewire our thinking about criminal history and recidivism.

Rest in peace, Al Krieger

Wed, 05/20/2020 - 20:00

Albert Krieger passed away May 14, 2020. For those of us who have been doing this work for a while (decades), we knew Al. A formidable criminal defense attorney in Miami, he was a founding member of the National College of Criminal Defense. He was a generous and humorous teacher. His colorful career included defending John Gotti at his 1992 trial, described in this Miami Herald article, "His cases inspired Hollywood movies. Attorney Albert Krieger has died at 96 in Miami."  

Rick Kammen wrote a beautiful tribute to Al.  Our memory of Al should inspire us to reach out to the next generation of criminal defense attorneys, to commit our time and resources to ensure that they have the opportunity to learn the lessons that Al taught. Rick wrote, "Albert understood and said many times that for each of us, it takes courage to go into the courtroom arena and fight battles, battles against opponents that sometimes are willing to bend the rules:  battles that sometimes seem hopeless." In these Covid-19 times, when many of the battles we fight seem hopeless, let's remember Al's "grace, compassion and courage."

-- Melody, with thanks to Rick Kammen.


Batson and beyond

Sun, 05/17/2020 - 10:39
One of these days, the courts will hold jury trials again. When that day comes, let us renew our efforts to ensure that no person is denied jury service on account of race, sex, national origin, or any other prohibited status. In other words, let's not let our juries look like this:

Challenging peremptory strikes. We can't win a Batson claim if we don't make a Batson claim. Do not be shy about challenging the prosecutor's peremptory strikes. Read this recent Marshall Project article about unconscious bias in jury selection or this amicus brief by civil rights advocates for inspiration.

Making a record. Press that claim with details in a timely fashion. Demand discovery on it and call for a pause in the proceedings if necessary to review the voir dire transcript and make your record for appeal.

Promoting local rule changes. Check out this local rule adopted by the Washington state courts. Or this one under consideration in the California legislature. Among other improvements on Batson, these rules include lists of presumptively invalid reasons to exercise peremptory strikes, including, for instance, where the prospective juror lives, whether the juror has expressed distrust in law enforcement, and the juror's physical aspect/demeanor (if not verified by the court).

Suppression, and COVID-19, made this defendant a candidate for pretrial release

Wed, 05/13/2020 - 16:14
Many of us are litigating pretrial release issues. United States v. Norbert, No. 3:19-cr-00050-CWR-FKB (S.D. Miss. Apr. 8, 2020) is worth a read. In that case, a magistrate judge in the Southern District of Mississippi originally found the defendant in a felon-in-possession case to be a flight risk and ordered him to be detained pretrial. Then the district court granted his motion to suppress the gun and his statements admitting ownership. That grant is on interlocutory appeal. Nonetheless, the suppression, the court said, weakened the government's case and tipped the scales in favor of release.

The court also noted that the "reality of COVID-19’s inevitable introduction to the Madison County Detention Center–where Norbert is currently held–further influences the Court’s decision to allow Norbert’s release on bond." The court noted the rapidity with which COVID-19 spreads, and recognized that incarcerated people are "uniquely susceptible to COVID-19" because social distancing inside correctional facilities is impossible. The court also found that any flight risk would be mitigated by travel and commercial restrictions already in place due to COVID-19. COVID-19 "spreads like wildfire through our nation's prisons and jails," the court said, and "there is no need to subject [the defendant] to that risk over the coming weeks."

Tenth Circuit Breviaries

Sun, 05/10/2020 - 16:00
Last week at the Tenth Circuit:

Bump stocks under the National Firearms Act, 26 U.S.C. §§ 5801-72, and Chevron

The plaintiff in Aposhian v. Barr is unlikely to succeed on his statutory challenge to the 2018 ATF rule classifying bump stocks as machine guns for purposes of the NFA (rule codified at 27 C.F.R. §§ 447.11, 478.11, 479.11). And thus the Tenth Circuit holds here that the district court properly denied a preliminary injunction.

Chevron deference applies, notwithstanding both parties' arguments to the contrary. First, the bump-stock rule is a legislative rule (which receives Chevron deference) rather than an interpretive rule (which doesn't). Second, controlling precedent does not support the plaintiff's' argument for a general rule against applying Chevron deference to agency interpretations of statutes with criminal-law implications. Third, the statutory definition of "machinegun" is ambiguous, and ATF's interpretation is reasonable.

Judge Carson dissents, finding that the NFA's "clear language" defining machine guns unambiguously excludes bump stocks from its coverage.

And for all you Second Amendment advocates out there: You'll have to look elsewhere for that constitutional analysis. The Second Amendment makes only a single cameo appearance in the case, in Judge Carson's dissent:
To be clear: I express no opinion on whether the Second Amendment protects bump stocks, nor do I express an opinion about whether any American citizen even has a valid reason to own a bump stock. Neither of those inquiries is before us today, and I do not base my dissent on any personal convictions about how a court should answer them.Conditions of supervised release: polygraph testing

In United States v. Richards, the Tenth Circuit approved a supervised-release condition requiring periodic polygraph testing of a pornography defendant, over the defendant's Fifth Amendment challenge. The district court ordered that the test results could not be used against the defendant in a new criminal case, but could be used against him in a proceeding to revoke his supervised release.

But district court did not order (and the government has not---yet---threatened) that the defendant's refusal to submit to a test could be used against him in any way. Absent this impermissible compulsion, there is no Fifth Amendment violation. And the district court was not required to include a prohibition against this compulsion in the condition: "The Fifth Amendment---not the terms of a special condition---guarantees Defendant's privilege against self-incrimination." If the need should arise in the future ("and hopefully it never does"), the defendant can raise his Fifth Amendment challenge then.

Conditions of supervised release: substance-abuse treatment and testing

This pornography defendant said during his psychosexual evaluation that he used pornography rather than alcohol to deal with stress. On that record, the district court's imposition of a supervised-release condition requiring substance-abuse treatment and testing was not an abuse of discretion---despite the fact that it had been nearly 20 years since the defendant had abused alcohol or drugs.The condition "will help ensure Defendant does not trade one vice for another." So concluded the Tenth Circuit in United States v. Richards.

Confidential sentencing recommendation can't hide facts

Thu, 05/07/2020 - 14:00
In United States v. Johnson, the Fifth Circuit held that a sentencing court cannot rely on facts that were not disclosed to the defendant. In that case, the district court relied on multiple allegations of witness intimidation to impose an upward variance. Those allegations were detailed in the probation officer's confidential sentencing recommendation to the court, but were not in the PSR or otherwise disclosed to the defense. On appeal, the Fifth Circuit found plain error and reversed. 

The Fifth Circuit found error under F.R.Crim.P. 32(d)(2), which requires that facts relevant to sentencing be disclosed to the defendant in the PSR prior to sentencing. Rule 32(e)(3) allows for the court to receive a confidential sentencing recommendation from the probation office. But, the Fifth Circuit said, that recommendation “cannot be used to shield undisclosed facts or factual allegations upon which a probation officer substantially relies in recommending an upward departure or variance from the Guidelines sentencing range or the selection of a particular sentence within that range.” The court also found that the error was "clear or obvious" based on the language of Rule 32(d)(2). The court also noted that Johnson had not argued that the allegations were false or claimed that he could present evidence to refute them. Nonetheless, the Fifth Circuit vacated and remanded for resentencing because the disclosed evidence did not support the district court's reasons for the upward variance.

Tenth Circuit Breviaries

Sun, 05/03/2020 - 14:22
Last week at the Tenth Circuit:

Fourth Amendment

Officers respond to a report of a domestic altercation in a restaurant parking lot. One officer accompanies the girlfriend to the couple's truck so she can retrieve her belongings. Officer tells the couple where to stand, and then, without asking, opens the lid of the camper attached to the back of the truck (where he then sees a bucket of ammunition). Fourth Amendment violation?

Yep. In United States v. Neugin, the Tenth Circuit held that (1) opening the camper and looking in was a search; (2) the fact that the officer was "trying to help" does not render his actions reasonable or mean that the community caretaking exception to the exclusionary rule applies (it doesn't); and the government failed to establish inevitable discovery. The search violated the Fourth Amendment and the district court should have granted Mr. Neugin's motion to suppress.

Sentencing: consecutive v. concurrent

Can a district court impose a federal sentence and then order that it run consecutively to a future federal sentence? Nope, says the Tenth Circuit in United States v. Ramon, such an order is disallowed by 18 U.S.C. § 3584(a):
Imagine Congress allowing what happened here. Obviously, the later sentencing court may well resent the preemptive strike or even just disagree with consecutive time. Suppose that second sentencing court ignores the earlier court’s attempted usurpation and imposes its sentence to run concurrently to the earlier one. What then? A mess, one Congress has avoided.Unfortunately for Mr. Ramon, his lawyer did not object to this order. His appellate challenge to the order is therefore subject to plain-error review, which he cannot meet, because the error was not "plain" until now.

Congratulations to Paige Nichols

Wed, 04/29/2020 - 12:00
Congratulations to Paige Nichols, of the Federal Public Defender for the District of Kansas, for winning this year’s Champion of Justice Award from the Kansas Association of Criminal Defense Lawyers.

The Champion of Justice Award is given for outstanding contributions to the field of criminal defense in Kansas. It can be for exceptional defense of clients, but it also can be for outstanding contributions to legal education or community service. As was noted when the award was given last week, Paige has done it all and then some.

Paige currently works as an Assistant Federal Public Defender for the District of Kansas, where she litigates direct appeals, supports district-court motions practice, and contributes to various local and national Federal Defender training projects. Anyone who has read a motion or brief written by Paige knows that her client representation is top notch.

But Paige has been a Kansas criminal-defense lawyer since graduating from Northeastern University Law School in 1993. She received her LLM in criminal law from UMKC, where she helped found the Midwestern Innocence Project. In total, she has worked in city, state, and federal courts as both a private and public defender, and at every stage of a criminal case (pre-charge, district court, appeal, SCOTUS, post-conviction, clemency). And she has worked on some of the more important cases in the history of our state.

But Paige has contributed to the field of criminal defense in Kansas in countless other ways. She been a KACDL member since 1994. She has served as the organization’s treasurer, secretary, newsletter editor, and ethics chair. She has also worked on legislation and authored amicus briefs for the organization. And she has been a frequent CLE presenter, always entertaining and educating at a high level. She even hosted an informative (and entertaining) podcast (Just in Case) focusing on criminal-defense case law just in from the Kansas appellate courts, the 10th Circuit, and the U.S. Supreme Court.

So thank you Paige for everything you have done for the field of criminal defense in Kansas. And congratulations on the well-deserved 2020 Champion of Justice Award.