The Federal Criminal Appeals Blog

I was in court the other day waiting for a hearing, and I saw a heart breaking scene. A woman who looked to be in her late twenties was the defendant in a criminal case and she had brought her daughter to court with her. I would bet her daughter was about four.

She didn't have anyone with her to watch her daughter, so she brought her up to counsel table for her hearing. When she got to counsel's table, the judge asked her where her lawyer was. She said she didn't have one. As it turned out, she had already plead guilty to felony theft. She was coming back for her sentencing hearing.

The judge asked her why she didn't have a lawyer. From looking at the docket for her case and his notes, he told her that he could see that they had continued the trial date twice for her. Each time the judge inquired about her eligibility for a public defender, and concluded that she was eligible. Each time he told her to go to the public defender's office. He also told her to go get a public defender after her plea hearing.

The judge was clearly frustrated. The woman rambled a little bit about how she didn't commit the crime (!), then told the judge that she didn't know, but she thought she might be depressed, and that she knew she was supposed to go to the public defender but she just couldn't make herself do it.

It was an incredibly sad, and all too familiar, moment. I find that too many of my clients are overwhelmed by the charges pending against them and can't really function to work on their case. It's hard to watch that happen, both as a person and as a lawyer. I've seen it hurt people badly. The criminal justice system is not forgiving of people who don't act in their own defense.

I find that when my rapport with my client is strong I can get through some of that depression to help the client focus on the case a little. When the rapport isn't strong, well, it's just a lot harder. I'd be very eager to hear from any readers about how they handle depression in their clients; it's a problem that I don't think gets enough attention in the criminal defense bar.

Perhaps the only solution is the one that came to the woman I saw in court that day. A lawyer in the courtroom, moved by the scene that she was watching, stood up and asked the judge if she could talk to the woman for a minute in the hallway. She didn't know if she would get paid (she may, in fact, have known that she wouldn't), but she was willing to help.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Over at Sentencing Law and Policy, Doug Berman reports on a recent article wondering why prosecutors are rarely punished when they do illegal things.

According to Radley Balko at Reason, one prosecutor in Florida has put four men in prison who were later exonerated. That prosecutor is now on the bench hearing criminal cases.

Balko asks,

[a]s DNA exonerations continue to accumulate across the country, we're left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases, like that of John Purvis, where a prosecutor illegally withholds evidence of a suspect's innocence? What about prosecutors who participated in multiple wrongful convctions? Is it fair to hold them accountable years or decades later? What of those who went on to become judges, and now preside over murder cases?

Balko isn't just complaining in a vacuum, he notes that the Innocence Project identified prosecutorial misconduct as a significant cause of a false conviction in at least a quarter of its cases. None of those prosecutors have been subject to meaningful discipline.

This is yet another sad part of how the incentives for prosecutors line up in a way that is not consistent with the public interest.

Prosecutors are rewarded by career advancement and, in some cases, cash awards, for getting convictions. Prosecutors are not rewarded for exercising good judgment to decline to prosecute when they ought to, or to seek a lighter sentence when appropriate. Maybe prosecutors really do act in the public's interest most of the time, but I don't think we'd create an incentive structure like that in any other area of public life.

The rejoinder to this is that prosecutors, as public servants, will pull up and exercise their discretion well. Certainly that happens, and when it does it should be celebrated. But the incentives don't line up to suggest that it will happen often. Why should such a prosecutor care that they did the right thing?

Our system relies on prosecutorial discretion, yet there is no meaningful incentive to develop or exercise good judgment as a prosecutor. And Balko argues that there is no reason to fear any meaningful punishment for bad behavior. With no carrot for behaving well, and no stick to punish behaving poorly, what kind of discretion should we expect from our nation's prosecutors?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

I realize that maybe not everyone is as scandalized as I am about the errors in Maryland's sentencing calculations. As I blogged about yesterday, Slate reported that Maryland lawyers have been wrong about 10% of the time they do sentencing calculations.

Obviously, this is really not great press for Maryland lawyers. But, the more I think about it, I think it exposes a significant problem with how we think about criminal justice.

Our system is the adversary system. The idea is that if you have two sides who both present their version of the truth, the truth will come out. Yet, in the Slate article, we have a nice example of how the adversary system fails.

Whether it fails because lawyers are lazy, or not bright, or not motivated is kind of irrelevant. Lawyers are missing things when it comes to sentencing; what does it say about the error rate for these same lawyers when it comes to what happened in the underlying crimes?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Slate has reported that, apparently, the error rate for sentencing calculations in Maryland is about ten percent. That's right, ten percent. "A system designed to make justice more predictable was producing errors in one out of every 10 trials."

That's not, actually, the incredibly stunning part. Apparently the cause of the error rate wasn't that people were lazy, or bad at math, or didn't understand the guidelines well enough to do the calculations. No, the error rate is caused by something much more depressing:

With the stakes so high--months and years of freedom gained or lost--how could Maryland's Sentencing Policy Commission have been so sloppy? For academic research--a matter trivial by comparison--it's common to have data entered independently by at least two typists, whose output is then cross-checked for accuracy. Yet it turns out that complacent bureaucrats weren't to blame for the sentencing mistakes. The work sheet had to be filled out by the state attorney prosecuting the case, with the final form signed and approved by the defense attorney (who, if he was doing his job properly, would have done the work sheet calculations independently). The commission had, by design, handed off the task of work sheet completion to parties that it assumed would have every incentive to get the numbers right, but it apparently never accounted for widespread incompetence in Maryland's legal profession.

I'm a Maryland lawyer, and I find this completely depressing. If all the errors resulted in lower sentences, I guess I could see this making sense. Prosecutors, particularly in state courts, can be excused from making a mistake or two if the sentence winds up where their intuition for the right sentence is consistent with the guidelines calculation.

What's scary is that defense lawyers let bad guidelines calculations though. Obviously, everyone has a bad day, but a ten percent error rate is way outside of the range of acceptable errors.

This is just unacceptable.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

As I blogged about before, it is not a crime to violate MySpace's terms of use. And, now, there's a judicial opinion that sets forth the court's reasoning!

Here's the key language:

[T]he question is whether individuals of "common intelligence" are on notice that a breach of a terms of service contract can become a crime . . . . Arguably, they are not.

And, as any good student of fair notice jurisprudence knows, if it's arguable that a course of conduct isn't within the scope of a criminal statute, the constitution says the conduct isn't subject to prosecution.

Thus, the court concludes that,

Treating a violation of a website's terms of service, without more, to be sufficient to constitute "intentionally access[ing] a computer without authorization or exceed[ing] authorized access" would result in transforming section 1030(a)(2)(C)

into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals.

The opinion is thorough in its analysis and makes a number of great points. My hope is that this is a high water mark in federal government over prosecuting, but my fear is that this case will be cited a lot. If you've read this far, you should probably check it out.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

There's a new blog in the criminal justice world - the Snitching Blog. It's young, but looks quite promising. Snitching is an important enough topic to get it's own treatment and the blog looks to be a good, if slightly diffuse, start.

Also, it's run by Alexandra Natapoff who, like me, is an alumni of the Federal Public Defender's Office for the District of Maryland.

Check it out!

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

In July, I blogged about a federal district court judge in Milwaukee who was mandamused after meeting with a Federal Public Defender and a United States Attorney and questioned the U.S. Attorney's office's judgment in bringing a case federally.

Now, as they say, the plot thickens.

Apparently the mandamused Judge has announced that he is no longer taking criminal cases. It isn't clear if he'll resume when a new U.S. Attorney is appointed, but that appears to be the rumor. NPR has excellent coverage, in a story in tonight's All Things Considered.

My understanding is that the Judge has issued an order in every pending case he had, which said that he was concerned there may be an appearance of impropriety by taking cases. Apparently he doesn't explain why, but one has to assume it's because the U.S. Attorney's Office has successfully had him removed from a case, and a neutral observer (like, say, me) might think that he would be upset about that.

[Note that it isn't just that the Judge isn't taking new criminal cases, he's also getting rid of the criminal cases he already had.]

NPR has a more interesting explanation, that this Judge was the U.S. Attorney back in the day; back when "don't make a federal case out of it" really meant something; back when AUSA's were more than just a backstop for state courts. According to NPR, this judge really wants to return to that gentler time, and he doesn't think federal prison is the most effective place to put people who are found in a bad neighborhood with a gun.

I hope they don't take my Prius away for saying it, but I disagree with NPR on that score. State crime has been federalized for a while now. The Judge has an awfully slow reaction time if that's why he's bowing out of criminal work.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

The Ninth Circuit has decided a major case on the way law enforcement searches electronic evidence using search warrants or grand jury subpoenas. The case is United States v. Comprehensive Drug Testing, Inc. and it's a chewy steak dinner for folks who like reading about how our Constitutional rights are going to work in the age of electronic evidence.

It's also a kick in the crotch to the kind of agents and prosecutors who over-reach when it comes to people's Fourth Amendment rights. (Though, as I read the case, I think the agent was overreaching and committed the government lawyers to take some unnecessarily aggressive positions.)

There's so much in this opinion that I'm just going to raise a few of the big parts I find particularly noteworthy. You should really read the whole thing yourself. Clearly, Comprehensive Drug Testing is going to play a huge role in how the Fourth Amendment and electronic data intersect in the years to come. It's also kind of a fun read.

Basically there are three big take away points - (1) the government cannot use the plain view doctrine to justify searching electronic evidence they don't have probable cause to search; (2) the government has an affirmative obligation to disclose any actual risks of destruction of electronic evidence in a search warrant application; and (3) once the government takes electronic evidence pursuant to a search warrant, it is limited to searching for evidence that it already has probable cause to search.

A fuller discussion of each of these points (and more!) is after the jump.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Continue reading "The Ninth Circuit Changes the Rules for Law Enforcement Searches for Electronic Evidence" »

I'm going to be teaching a course at Solo Practice University!

The course I'll be teaching is on Federal Criminal Practice. It's designed for students who already know how to represent someone in state court on criminal charges but wants to expand his or her practice into federal court. I'll talk about the parts of criminal practice that are unique to federal court - Federal Sentencing, the Federal Rules of Criminal Procedure, the Bail Reform Act, and some of the constitutional challenges to a prosecution that one can make in federal court more frequently than state court. It should be fun.

Solo Practice University, for those who don't know, is a resource for lawyers and law students who have started, or what to start, a solo law practice. There are courses in substantive areas of law (such as my humble offering) as well as the logistics and details of starting a practice, getting clients, and handling the other stresses, challenges, and joys that come from helping folks in our legal system.

I'm looking forward to teaching the course to help lawyers who are coming to federal court represent their clients better. I remember one day, as I was walking into the U.S. Marshall's cell block in federal court, I saw a friend of mine who I knew did a fair bit of state criminal work. He asked if he could bend my ear to talk about a case he had. He's a good lawyer, and he really cares about his clients, but he was so lost in the federal sentencing scheme that applied to his client that he really was not going to do the job he needed to. To his credit, he was asking for help, but I fear what happens when lawyers in that situation don't reach out to someone with federal experience. My hope is that by teaching this class I can better equip state court criminal defense lawyers to go into federal court and represent their clients well.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

I've blogged before about how the federal government likes to create task forces to create specific problems. There are health care fraud task forces, mortgage fraud task forces, Hurricane Katrina fraud task forces, and workplace fraud task forces. Creating a fraud task force allows prosecutors to pool their resources relating to a specific industry, consolidate their knowledge of that industry, ask for more money from Congress, and issue press releases.

Out of San Fransisco, however, comes a story that perhaps warrants a new task force on art fraud. Apparently, a federal grand jury has indicted an art dealer for selling fake Miro paintings. An undercover postal inspector allegedly purchased a fake Miro from the art dealer at the man's gallery in San Fransisco.

Worse, the Miro fraud was not just in San Fransisco, but it involved galleries around the country, and in Italy and Spain. One defendant is outside of the U.S., and our government is trying to have him brought over to stand trial here.

Even worse than that, the art fraud ring is not limited to Miro, but also included prints that were not paintings done by Warhol and Picasso.

I have to think that's a pretty good detail for a postal inspector to get assigned to.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Like most folks, I was saddened to learn that Ted Kennedy has passed away. He has, of course, left a tremendous legacy in this country that will be recounted by many in the coming days and weeks.

One of his lesser known contributions to our nation was as one of the original forces behind the legislation that created the Federal Sentencing Guidelines. Though, of course, he didn't see how they would come to be used, his original impulse was good and progressive.

Senator Kennedy (and others, to be sure) was rightly unhappy with the unwarranted disparities between defendants of different races and economic statuses in federal court. Well-off white defendants received more lenient treatment, in general, than poor minority defendants. The Sentencing Reform Act was supposed to ameliorate that disparity.

Sadly, it worked for the most part, but by jacking up the sentences of well-off whites and tweaking which disparities count as "unwarranted" (see, e.g., the crack/powder guidelines), as well as reducing the kinds of facts about individual defendants that judges can consider.

Still, you have to give Senator Kennedy credit for being willing to get involved in the structure of the criminal justice system, and to try to work to change things for the better.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

It appears that there is a new national task force to combat mortgage fraud. DOJ is teaming up with HUD, Treasury, and the FTC, as well as a number of state Attorneys General to investigate and prosecute mortgage fraud.

Perhaps I'm slow, but I thought there was already a big task force combating mortgage fraud as a result of the last housing bubble.

The difference, if you read the article carefully, must be that this task force is focusing on "bogus foreclosure rescue" schemes. It's much more of a housing market collapse mortgage fraud task force, as opposed to the prior mortgage fraud task force which focused on schemes from when real estate prices were high.

That's a relief. I'd hate to think that prosecutors are doubling up their efforts just so they could issue press releases.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

There's a story out of Connecticut that I find particularly troubling; a woman has entered a guilty plea to obstruction of justice after lying to federal agents in a health care fraud investigation. To my mind, obstruction of justice charges have one cause - failing to hire a lawyer when you need one.

Too many people think they can go it alone in a federal investigation and wait to hire a lawyer. This is a mistake. To be sure, there are drawbacks to hiring a lawyer - lawyers are expensive, they take time, they tell you things you may not want to hear. But they also can advise you how to act when you, or someone you know, is caught up in an investigation.

The woman in this story said she lied about whether a patient signed an admissions form. One may think that some folks are liars and some folks aren't and that hiring a lawyer won't make a difference. I disagree. A good lawyer can intelligently explain why lying is a remarkably bad strategy when you're caught up in an investigation.

Moreover, most folks who are going to lie, lie when someone is talking to them. Hiring a lawyer early is an excellent way to make sure that you have to do the least amount of unaccompanied talking possible. And reducing the amount of your unaccompanied talking is a good way to reduce your exposure to an obstruction of justice charge.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

The Second Circuit has rebuffed the New York Times' attempt to get access to the information learned from wire taps of the folks involved in the Emperor's Club, the same organization that brought down Eliot Spitzer.

The opinion is here.

The result seems obvious, to me at least. Certain parts of a judicial proceeding are not public. Grand jury proceedings, for example. The court lists these proceedings at length in footnote 4.

Wiretaps just look more like grand jury proceedings than, say, public criminal trials. There is, thus, no First Amendment right of access for the press, just like there's no First Amendment right of access to a grand jury.

Though, happily, there is reason to think that we may have Eliot Spitzer to kick around a little bit more, despite the Second Circuit's ruling.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Brace yourselves, because, according to the National Law Journal, the Department of Justice is hiring more lawyers to rain grand jury subpoenas and search warrants on the doctors and executives of the United States.

This should probably not be surprising, since the government has been pretty clear about what they're doing with health care investigations. And, on the campaign trail, Obama was hardly secretive about wanting to prosecute executives.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.