July 18, 2011

The D.C. Circuit Remands for Resentencing Because [Redacted]

A federal district court judge has broad powers in a federal sentencing. Sadly, often the judiciary fails to fully grasp the extent of its power. When that happens, a federal appeals court remands for resentencing.

For example, suppose a district court judge says at sentencing to the defendant, "You seem like a very kind person, but I can't give you a lower sentence just because you're a kind person -- the law won't allow it." That case is going back on remand. Eighteen U.S.C. section 3553(a) directs a district court to consider the characteristics of the person being sentenced. One of those, obviously, is whether he's nice.

When you think about it, this is kind of an odd situation. The district court is saying that it is moved by something, but can't consider it. Perhaps there's a bit of "don't throw me in the briar patch" syndrome going on -- the judge is moved, and wants to go lower, but feels that if he or she shows mercy to someone convicted of a serious offense it won't be good. So rather than simply owning that decision, one can empathize with why a judge would want to say the law won't let him make that decision. It's easier if the law takes away his ability to be merciful.

In United States v. Delany, the D.C. Circuit reversed and remanded because the district court believed it did not have the power to consider something at sentencing. As the court noted, a district court has to consider any serious argument that a lower sentence is warranted based on age, lack of criminal history, efforts at rehabilitation, or attempts to cooperate with the government.

"Indeed, '[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.' 18 U.S.C. S 3661

After making this statement, the D.C. Circuit then goes on to, well, I don't know. Except for the conclusion that the sentence was reversed and a Fourth Amendment issue didn't go the defendant's way, the rest of the opinion is redacted.

So we don't know what it was that caused the district court to get reversed.

This, personally, is annoying. I practice in federal court in D.C. I need to know what the sentencing law is in the jurisdiction that I practice. I know that the U.S. Attorney's Office has a copy of this opinion -- my opposing counsel now knows the law as expressed in this case. But I don't. And I don't get to.

There are good reasons for redaction, especially when I'm asking for it. But this appears to be a case important enough to warrant publication -- it would be nice to know what it says. Redaction makes sense in many cases in the district court. But if the issue is important enough for it to be the basis of a D.C. Circuit opinion, it raises significant questions about how we are to know how the law is developing.

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.

July 14, 2011

The Eighth Circuit Holds that the "Know Nothing" Defense Can Be Asserted Against a Securities Fraud Charge

The University of Nebraska is known for its tremendously powerful football program. It has less of a reputation for academic prowess. Which has been the inspiration for the following joke --

Question: What's the N on the side of the Nebraska football helmet stand for?

Answer: Knowledge.

Admittedly, the joke works a little better when delivered orally.

The Eighth Circuit today reversed a Nebraska district court for discounting the importance of knowledge in a securities fraud case in United States v. Behrens. A bit of background is in order:

There is an odd sentencing provision that applies in securities cases. Under 15 U.S.C. section 78ff(a), if a person is convicted of an offense that uses section 78ff to define the offense's penalty, and that offense relies on breaking a rule or regulation of the Securities and Exchange Commission, and the person can prove at sentencing that he had no knowledge of the rule, then, regardless of the fact that he was convicted of a crime, he cannot serve a sentence of imprisonment.

This is called the "Know Nothing" defense. Note, the Know Nothing defense is not really a defense -- rather it's a sentencing rule. It is a defense to having to serve time in prison, not to a conviction. (though, of course, avoiding prison is still tremendously valuable to someone faced with not avoiding prison)

Behrens was convicted, indeed, he plead guilty, to using the mail to fraudulently or deceptively contravene a rule of the SEC under 18 U.S.C. section 78j(b). He tried to assert the Know Nothing defense, but the district court said that it was not applicable to that securities fraud statute.

The Eighth Circuit looked at the statute and held that the deception has to subvert an SEC rule -- the violation of the rule is, therefore, an element of the offense. Finding that the district court in Nebraska erred in its interpretation of the statute, the appeals court reversed.

Fear not, pro-government readers, Mr. Behrens will still have to prove his lack of knowledge on remand.

One interesting question is why the prosecutor didn't simply require a plea to mail fraud to avoid this issue. Perhaps it had to do with giving law enforcement a securities fraud stat instead of a general fraud conviction Or maybe the U.S. Attorney's Office in Nebraska was frustrated by the lack of 8th Circuit law on this question, and wanted to present it to the appeals court. If so, kudos to that office for structuring the plea in such a way as to allow the law to develop.

Perhaps the "N" stands for Nothing, in "Know Nothing"? For a list of other suggestions, please see the comments section on this post at a Nebraska Football fan site.

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.

July 13, 2011

The First Circuit Reverses For Multiple Evidentiary Errors

Felix Sanabria is either a humble fisherman trolling the waters off of Puerto Rico, or, if the government is to be believed, he's a serious drug importer. Whichever he is, his federal drug conviction was reversed on appeal this week by the First Circuit in United States v. Sanabria.

At trial, the government relied on the testimony of witnesses who fingered Mr. Sanabria. The case turned on three transactions where drugs were exchanged. No photographs were ever taken of the person the government said was Mr. Sanabria -- a person known as "El Chapo."

At his trial, Mr. Sanabria's lawyer tried to mount a defense. Mr. Sanabria is, apparently, dark-skinned. One of the witnesses who testified against Sanabria had told a law enforcement agent that El Chapo was light-skinned. At trial, that witness said that Mr. Sanabria was El Chapo. His lawyer thought that maybe the jury should hear about that prior description, and he tried to ask the government agent who worked the case what that witness had said. The trial judge wouldn't let him on the theory that whether Mr. Sanabria matched the description of El Chapo was a collateral issue -- it wasn't relevant enough.

Mr. Sanabria's lawyer also tried to show that a government witness against Mr. Sanabria was intimidated into giving a statement implicating him. The judge said that the witness's motivation to give a false statement wasn't admissible. And the witness's prior statement about being intimidated couldn't be used against her now, because that statement wasn't made under oath (FYI, for the non-lawyers, statements can come into evidence when they aren't under oath -- in fact, it's rare for a statement to be made under oath before it's offered at a trial.).

Before the trial, a person who had met with Mr. Sanabria after he was arrested asked him if he was guilty. Mr. Sanabria said he wasn't, that they got the wrong guy. The government asked that witness if the witness thought Mr. Sanabria was lying about that. The witness said he though Mr. Sanabria was lying. The trial judge thought that question was appropriate.

Mr. Sanabria was convicted and sentenced to fifty years in prison.

The First Circuit carefully went through each of these issues, showing how they are, basically, not consistent with the law. The Court found that these mistakes by the trial judge "unavoidably call into doubt the reliability of the verdict and the underlying fairness of the trial." They reversed the conviction.

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.

July 12, 2011

The Tenth Circuit Gives Some Criminal History Relief in a Gun Case

It's ironic in a sense. Some of the most complicated questions of federal criminal law have to do with calculating the way a person's criminal history intersects with the sentencing guidelines in a federal weapons charge. Yet weapons crimes are, themselves, generally unsophisticated. When a very good lawyer on a weapons charge gets paired with a stereotypical gun charge client, it creates odd pairings of super-geeky lawyers and folks who are attracted to the elegant simplicity of a hair trigger.

Which brings us to a reversal for resentencing in an appeal from a federal gun charge. The Tenth Circuit today reversed and remanded for resentencing in a gun case, United States v. Armijo. The basic facts are vanilla -- Armijo was convicted of possessing a gun. He's got a prior felony conviction, so that violates 18 U.S.C. section 922(g). The guidelines for a felon in possession charge depend on the defendant's criminal history. If he has two prior convictions that are either drug distribution charges or crimes of violence, then his guidelines start at a level 24 (assuming we're not talking about a machine gun).

The question is, what counts as a crime of violence? The phrase "crime of violence" is the rabbit-hole into which thousands of hours of attorney time have disappeared (though for a good reason -- the wrong answer from an appellate court can lead to thousands of years of people's lives disappearing into a less pleasant kind of hole).

What counts as a crime of violence doesn't just matter for the felon in possession guidelines. If a person is convicted of being a felon in possession and he's got three crimes of violence in his past, then he's an Armed Career Criminal. An Armed Career Criminal's statutory maximum is life, instead of ten years for a garden-variety felon in possession, and he is facing a mandatory minimum sentence of fifteen years.

So there's a decent amount of law on what convictions count as a crime of violence.

The Tenth Circuit today clarified that manslaughter in Colorado is not a crime of violence. It's an interesting call. On the government's side, manslaughter is specifically listed in the guidelines as an example of a crime of violence (it's in note one of the commentary for section 4B1.2). That seems like kind of a bad starting point for Mr. Armijo.

However, the Tenth Circuit notices that as Colorado defines manslaughter, it requires only recklessness, not a higher intent to actually harm someone. So, the Tenth Circuit concludes, this can't be a crime of violence, if a crime of violence is something that has, as an element, "the use, attempted use, or threatened use of physical force". Such use of force has to be on purpose for it to count as a crime of violence.

In other words, you can't accidentally commit a crime of violence in the Tenth Circuit. (or, as it happens, in the Fourth, see United States v. Peterson, 629 F.3d 432 (4th Cir. 2011).)

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.

July 12, 2011

The Ninth Circuit Hears an Appeal the Appellant Doesn't Want to Bring, Then Reverses for a Competency Hearing

United States v. Duncan is a hard case that presents a hard issue of federal criminal appellate procedure -- if the appellant doesn't want to appeal, can the court hear the appeal? As it happens, in a very narrow set of cases, yes.

I won't go into what happened to get Mr. Duncan indicted, except to say that if we're going to have a death penalty, this is probably the kind of conduct that we're going to want it to apply to (seriously, skip the statement of facts in the opinion -- you'll sleep better).

At trial, Mr. Duncan fired his lawyers and said he wanted to represent himself. He's got a right to do that, if he can do it knowing what he's doing. The district court asked two experts to work for the court to see if Mr. Duncan can represent himself. They were in conflict, and the district court decided that he was competent and let him represent himself.

In a death penalty case, the jury first decides guilt or innocence, then decides, in a separate phase of trial, whether the sentence should be death. In the penalty phase, sophisticated counsel investigates heavily and digs deep to present a compelling case of why this person's life shouldn't be ended.

Here, Mr. Duncan merely took the stand, made no statements, and after the government declined to ask him any questions, sat down.

When a person represents himself, the trial court will often appoint standby counsel. The court in Mr. Duncan's case did that. After the jury sentenced Mr. Duncan to die, his standby counsel filed a notice of appeal.

Mr. Duncan wrote the court saying that he didn't want to appeal. The district court struck the appeal.

The Ninth Circuit being what it is, decided that it would decide whether it had jurisdiction to hear the appeal.

The appeals court first had to decide if it could hear the appeal. Mr. Duncan clearly didn't want it heard (the government didn't either). The only people involved in the case who wanted the appeal to be heard were Mr. Duncan's already fired standby lawyers.

The Ninth Circuit held that

"in the unusual circumstance in which the petitioner and his appointed attorney are actively contesting the petitioner's competence as between themselves, the lawyer, as a participant for the petitioner in the proceedings, is entitled to appeal the court's decision of mental competence, which would otherwise remain unreviewed in a death penalty case. Indeed, we recognized that in some cases a lawyer bears an ethical obligation, acting in the best interest of his client, to contest his client's competency to dismiss his action."

Death is different, and, when it comes to competency in a death case, the Ninth Circuit wants to hear the appeal.

The Ninth Circuit then reviewed the competency evidence and found that the district court should have held a hearing in order to evaluate whether Mr. Duncan was competent.

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.

July 11, 2011

The Ninth Circuit Vacates a Restitution Award in a Child Pornography Case

Joshua Kennedy was flying into Seattle from overseas. Customs searched his laptop and found child pornography on it. The appeal of his conviction was decided today by the Ninth Circuit today in United States v. Kennedy, presenting a really interesting take on the scope of federal restitution -- and the kind of harm that comes from the transportation of child pornography.

As an aside, let's stop there for a second. Did you know that the government can search you at the border (meaning, basically, anywhere Customs has a checkpoint)? Searches of computers at the border are way more common than I suspect most people suspect. Legal challenges are being mounted.

The searches of laptops at the border are invasive. And they don't require probable cause. Customs can search everything on your iPhone anytime you fly back from overseas. They don't need a reason. They can just take your phone and search it. Surely the amount of our personal lives that we keep on our computers and phones counsels in favor of rethinking this rule at some point. Is there a greater threat to national security, or whatever, if I email myself a file from Paris than if I put it on a thumb drive and carry it through Customs?

Anyway, back to the restitution issue.

Mr. Kennedy was convicted of transporting child pornography. The government asked the district court to impose a restitution order, because two of the women who were depicted in the images that were found on his computer. The government submitted evidence that having their earlier abuse viewed by strangers has been very damaging.

Psychologists presented evidence of the harm they'd suffered. One of the women said every time a victim notice came from a US Attorney's office she would have a panic attack (one would hope that she could simply take her name off of the notification list, but I know the federal victim notification laws are complicated).

One woman asked for $3 million. The other asked for $227,000.

The district court gave them $1,000 for each image they were in, basically throwing its hands up on how to figure out what the measure of damages for a situation like this should be.

The Ninth Circuit reversed. The Court noted that to succeed in a claim for restitution, the government has to show that the defendant's conduct was a cause of the harm that was suffered by the victim. So, here, the women seeking money would have to show that Kennedy's possession of their image caused them to be harmed.

The Ninth Circuit said, basically, no way. The women were harmed, to be sure, but Kennedy's possession of the images wasn't known to them -- if he hadn't possessed them, they would have been no better off. That he did possess them rendered them no worse off. So, because his possession didn't change the quantity or quality of harm suffered by the women, Kennedy didn't cause the harm.

It's a compelling theory of causation, I think, and it resolves what was developing into a thorny issue of public policy. Restitution in situations like this have been kind of a hot area in the press lately. This guy seems to have built a whole practice area on it. The New York Times has written about the controversy.

I can't wait to see how long it takes for the Supreme Court to reverse, or Congress to amend the statute.

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.

July 11, 2011

The First Circuit Reverses (One Count Of) a Conviction

The First Circuit today reversed a conviction in a federal criminal appeal. Or, at least one count of one of the co-defendant's convictions. His other nine counts of conviction withstood appellate scrutiny. Still.

In United States v. Newell, two men were accused of fraud involving an Indian tribe of about seventy people in the northern part of Maine. The opinion is exactly the kind that appellate courts should be writing -- it is dense and considers the arguments advanced by the parties in detail. At seventy-eight pages, it is perhaps not the terse read that most consumers of judicial opinions want. That said, if one important function of a court is to make sure the parties recognize that their arguments were heard, this opinion meets that standard. For the members of the tribe involved, there are almost ten pages of opinion per tribe member!

The reversal, though, is exactly the kind of appellate reversal that should happen. One of the men accused of the crime, Parisi, signed a check authorization for a person who was not employed with the tribe. Three witnesses for the government testified that they didn't recall if Parisi knew that the person didn't work for the tribe during the time period covered by the check. Parisi himself didn't work for the tribe during that time period. As the First Circuit noted, "we see no reason to believe that he knew,with in a few months of his arrival, where every tribal member had worked in the previous fiscal year."

This reminds me, just a bit, of the recent Onion piece, "Investigation Finds Man Wrongfully Imprisoned for 3 of 76 Murders".

Still, a reversal of a conviction by a federal appellate court is rare enough it's to be noted, even if it's just the one count.

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.

July 9, 2011

The Ninth Circuit Says the District Court Can't Negotiate An Appeal Waiver

You've got to feel for federal district court judges.  No one wants someone else looking over their shoulder.  Even though winning a federal criminal appeal is hard to do, district court judges still do get reversed more often than they'd like. 

Yet, when it comes to pleading guilty, only the government can ask the defendant to give up his right to plead guilty -- the judge doesn't have a role in plea negotiations. 

One district court judge in the Ninth Circuit had a novel solution -- he'd just negotiate, "man to man", his own appeal waiver with a defendant.  Which gives rise to a remarkable Ninth Circuit opinion in United States v. Gonzalez-Melchor.

The Court told the defendant he'd sentence him below the guidelines, to something like 60 or 65 months (off the low end in the 80's), if the defendant would agree in open court not to appeal the sentence and "waste" everyone's time with an appeal. (in fairness, the court did retract the characterization of the appeal as wasteful (which is either ironic or appropriate since the Ninth Circuit reversed and remanded)).

Despite his "man to man" pledge not to appeal, the defendant appealed anyway.  The Ninth Circuit, considering this court-negotiated appeal waiver, had little trouble finding the waiver invalid.

Sadly, the Ninth Circuit remanded for resentencing, thereby unraveling the whole deal, rather than letting the appeal go forward without the waiver.  I'm looking forward to reading the opinion in a few years where the sentencing court gives the guy low end, and he appeals saying he should have gotten what he got the first time, and is only getting a higher sentence because he wouldn't agree to an illegal appeal waiver.

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.

July 8, 2011

The Fourth Circuit Invites Open Pleas

In a federal criminal appeal this week, the Fourth Circuit bucked a line of cases in other circuits and held that the government can't try to give a longer sentence to criminal defendants just because they won't give up their right to appeal. 

A bit of background is helpful.

In the federal system, if a person enters a plea of guilty and accepts responsibility for their conduct, their federal sentencing guidelines level is reduced by two-levels automatically.  If the government makes a motion for additional acceptance, the guidelines level will drop an additional, third level.  The government is supposed to make that motion based on whether the person said he was going to plead early in the process, thereby saving the government time in preparing for trial (because, of course, using the government's resources efficiently is a factor in 18 U.S.C. section 3553(a)).

The guidelines provisions are set out in section 3E1.1.

In United States v. Divens, though, the government said that they knew the defendant, Divens, was going to plead early.  It's just that he wouldn't execute a plea agreement that gave up his right to appeal.  The government said they wouldn't move for the additional level if it meant they had the possibility of having to do an appeal.  At sentencing, without a government motion, the Court didn't give Divens credit for the third level.

Divens appealed, saying that the government can only refuse to move for the third level if they have to prepare for trial.  Here, the government didn't have to prepare, because Divens said he'd plead early.

Stunningly, the Fourth Circuit agreed.  Even though a number of other circuits have held that the government doesn't have to make the motion, the Fourth now requires the government to move for an additional level when trial prep has been avoided, regardless of whether the defendant will bend to additional government demands.

Why does this matter?  Because in plea negotiations, the government often demands plenty of concessions that don't have anything to do with avoiding trial preparation.  The government requires defendants to waive their ability to FOIA their investigative files (even though they likely couldn't get them anyway based on other FOIA exceptions), to waive their appeal rights, to give up forfeiture rights, to agree to restitution, and others.  The threat the government uses is that they won't move for the third level if the defendant won't give up these rights.

So, after Divens, the threat of the third level should be substantially different in the Fourth Circuit.

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.

June 10, 2011

OIG Investigations and Federal Employees

Federal employees are in a vulnerable position for an investigation by an Office of Inspector General (or OIG).  Basically, an OIG investigation can run in two different directions.  Each has it's own dangers that a federal employee who hears from an OIG Agent needs to be aware of.

If an OIG Agent is investigating a criminal violation of law, then the federal employee has the risk of being prosecuted.  If the OIG Agent thinks he or she can prove that the federal employee committed a crime, and the OIG Agent can convince an Assistant United States Attorney to bring a case, then the federal government is bringing its resources to bear to convict the federal employee of a crime.  Often, this means that the government wants a felony conviction, and it can quickly mean that prison time is a real risk.

If, however, the Assistant United States Attorney decides that a criminal prosecution is not warranted, either because there isn't enough evidence of a crime, or because what happened isn't serious enough to warrant a prosecution, or because what the OIG Agent is investigating isn't a violation of a criminal law, then the federal employee is still not in a good position, because he or she can lose his or her job.  If criminal charges aren't an option, the OIG Agent can require that a federal employee give an interview.  If the employee doesn't give the interview, then that can be a basis for a disciplinary action.

Federal employees face unique risks.  They're conduct has its own law enforcement offices that are set up to investigate - aside from government contractors, OIG Agents spend a lot of time looking at federal employees. 

For a federal employee who is under scrutiny by an OIG Agent, it is important to know what is happening, and what needs to be done to protect your job, and, possibly, your freedom.

June 7, 2011

Matt Teaches a Course on Campus Sexual Assault Defense

I have represented, successfully, students at Universities in the greater D.C. area who have been charged in internal campus disciplinary proceedings with sexual assault.  In the cases I've handled, no prosecutor would take these cases - the evidence is simply not strong enough to support a conviction.  Moreover, the complaining witnesses have an interest in not having anyone outside of the campus environment look into what happened.

The cases I've handled arise out of romantic relationships that are ending badly, or out of nights out drinking.  There is no question that the couple had sex, the only issue is whether the sex was consensual.

What's challenging about these cases is that schools are not obligated to provide the same rights to their students that people who are accused of a crime in a normal court have.  Normally, the school writes a code of student conduct that defines how these procedures will work.  Sometimes the school doesn't follow its own procedures.  This can seriously undermine a student's ability to defend himself.

Recently, I gave a talk for lawyers on how to represent students accused of sexual assault on campus.

Here's an ad for the lecture:

In the full talk, I explain how there are a number of federal laws that apply to these kinds of situations, and how lawyers who have students who have been accused of these kinds of campus charges can defend their clients. 

This kind of situation can be a minefield, and schools are under tremendous pressure to take action when a sexual assault is reported.  It can be very difficult for a lawyer to effectively help a client, since the rules are not familiar, and the players have a different set of background notions of what should happen.

And, in these cases, the stakes are incredibly high.  A person falsely convicted of sexual assault on campus can have a notation on their transcript that can follow them for life.  It can completely alter a student's educational future, which, in turn, can change the course of a student's life.

March 31, 2011

American Exceptionalism and the United States Prison Population

There has been a lot of debate in the media in the past year, or so, about American Exceptionalism.  Put simply, American Exceptionalism is the idea that the United States of America is fundamentally different than other nations.  The idea was popular during the midterm elections as a way for Republicans to try to show that they love America more than the President.  It's perhaps more interesting to argue about that than the details of health insurance regulation.

I recently took my son to Philadelphia, to the National Constitution Center.  The museum starts with a seventeen minute live action play about our Constitution.  It's hard not to buy into the idea and ideal of American Exceptionalism in Philadelphia.  If there's a reason to think we're different, and better, surely it has it's roots in what happened in that city. (That said, a bit of distance to reflect on the idea of [insert nation here] exceptionalism may simply reveal that it isn't meaningfully different than patriotism).

I do think America is qualitatively different than other countries.  I agree with a form of American Exceptionalism in three ways.  First, I think this country, unique among others, celebrates and encourages people to carve their own path in life.  Americans innovate and rally and strive.  In a deeply unquantitative and unscientific way, I think Americans do that more than other people.  That's to be applauded.

Regrettably, America is exceptional in a second, more numerically verifiable way.  We have more people in prison than any other nation on the planet.  That's not in relative numbers, but in absolute ones.  We have 2.3 million people in prison, compared with China's 1.6 million.  Considering that China is four times the size of the United States, and is not, ahem, freedom loving, that's stunning.

I have close relationships with a number of prosecutors, and, at times, I'll ask them about their work.  The question I come back to is this - If the United States locks up more people than any other country on the planet, what does that same about America?  Are our citizens uniquely inclined toward criminal activity?  Are we, as a people, more deserving of prison time? 

I don't think that's the answer.  I think we can accept that it can be the answer (we're not Australia, after all).  Rather, I think the answer, as David Simon has argued, is that the war on drugs has been a war on poor people.  Though I don't think a prosecutor is allowed to agree (unless he or she thinks it's ok for a country to declare war on poor people, which is a separate problem).

Rather, I think a third kind of American Exceptionalism explains how prosecutors react to our unconscionably high number of prisoners.  Years ago, I went to a talk by then Chief-Justice Rehnquist.  He was explaining that he was in Finland, meeting with the Attorney General of that country.  He asked her if the Supreme Court of Finland has the power to declare an act of parliament against the law in Finland.  The Attorney General consulted with her advisors and said that they could, but never had. 

To Rehnquist, this answer illuminated a key difference between Americans and the rest of the world - it is unthinkable for an American to have power and not test it's limits.  We are, according to our late Chief Justice, a power-hungry people. 

I have talked to a number of prosecutors, and I can see the lure of the position.  One can walk into a lot of opportunities from a U.S. Attorney's Office.  But I don't know one yet who I've heard offer a thoughtful response to how dramatically out of whack our prison population is with the rest of the world.  I can see, though, how Rehnquist could offer an explanation why people who increase our prison population don't stop to think much about its size.

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.

March 6, 2011

Why Do People Hate Juries?

Jury trials are under attack. Granted, my perspective is idiosyncratic – I tend to notice things only if they affect the kind of law I practice (mainly federal criminal defense and plaintiffs personal injury) or they get so much attention in the mainstream or legal press that they can’t be ignored. But from a lot of fronts, we’re sliding into a civil law/administrative system of justice instead of the one we learn about in school and that’s in the constitution.
I’m seeing three reasons to worry – federal judges sentencing criminal defendants on acquitted conduct; caps on damages, and Ken Feinberg.
It’s hard to explain to a client that regardless of what a jury says or what he entered a plea to, the Court has the power to sentence him up to the statutory maximum based only on facts that the judge thinks finds to be true by a preponderance of the evidence.  But, hey, that's the law.  Clients reasonably ask what the point of the jury is, if not to find the facts that lead to their sentence (clients, perhaps myopically, tend to focus more on how much time they’ll be away from their family than on the name of their offense of conviction). I don’t know what to tell them.
In the federal district court where I practice most, a guy was just given a life sentence. His guidelines were just over fifteen years. The government proved up state crimes that he was acquitted of. Turns out the federal judge doing his sentencing was more sympathetic to the government's evidence than the state jury was; he decided that the defendant was actually guilty of the state offenses and gave him the statutory maximum based on hearsay testimony and a preponderance of the evidence standard. 
How much violence does that do to the idea that jury trials matter? 
The problem is that federal courts have decided that jury trials only matter to the fact of a conviction – the actual sentence is up to a judge. But, no one but a lawyer cares what the offense of conviction is – people care about how much time in prison they’re going to get. Taking a jury trial away from the thing that really matters – the facts that support a sentence – is a sophistic slight of hand.
Caps on damages in civil suits are the same thing – courts or legislatures think that they should be making decisions about damages, rather than the good citizens of our community, should be making decisions about damages.
Ken Feinberg has built an empire on the idea that jury trials are to be avoided. And he’s showing no signs of turning into Ozymandias any time soon.
I’m not sure if jury determinations about, say, sentencing would always work out well for my clients. Juries can do crazy things – they probably give sentences that are higher than what a judge would give for crimes of violence, but white collar cases may work out better, at least under current federal sentencing guidelines. In civil cases, there are plenty of stories of completely bizarre jury behavior.
What bothers me is that the way jury rights are chipped away at is the very worst about lawyers. Consider the Seventh Amendment –

            Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

“No fact tried by a jury shall be otherwise re-examined in any Court in the United States.” Pretty clear, right? 
Good citizens, here’s what your courts allow – a defendant in a civil case can file a motion for judgment on the evidence before the jury gets the case, then, after an adverse jury verdict, the defense lawyer just renews her prior motion. The Court is ruling, not on the jury verdict, but on the motion that happened before the jury verdict. It’s clever, but I don’t mean “clever” in a good way.
Is this a problem?  I think so.  If we're going to change the way we decide things in our courts, we should do it after we all get together and decide that's the change we're making.  But that's not what we're doing.  The way we decide important questions about what people should be punished for, or how much a life is worth, is changing.  And it's changing in ways that aren't being discussed.

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.

February 21, 2011

Office of Inspector General Investigations and You

I have represented a number of people in investigations by an Office of Inspector General (or "OIG").  Many of my clients have been federal employees who were being looked at by the OIG for their agency.  For federal employees in this situation, there really isn't very much information available about the process.

For that reason, I was curious to see online a pamphlet called "OIG Investigations and You."  It's put out by the Office of Inspector General for the Corporation for National and Community Service (did you know there's a Corporation for National and Community Service, and that they have an Office of Inspector General?  Well, now you do.)

I don't agree with everything in this pamphlet.  For example, the pamphlet tells you that you shouldn't talk to others about if you've been interviewed by OIG agents because it might be obstruction of justice.  I suppose that's true in an extreme case, but it seems to me more likely that it's a pain for OIG agents to not control all the information in an investigation and they'd like to scare people out of talking to, say, a lawyer hired to represent a target of an investigation. 

That aside, it's actually a fairly decent starter document about what happens in an OIG investigation and what a federal employee's rights in an OIG investigation are.

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.

February 19, 2011

Matt Kaiser Teaches Stuff On The Internet

I'm teaching an online CLE for lawyers who practice in state court and want to learn about federal criminal procedure.  It's available at Lawline.  Here's a link to a teaser video (and, yes, that is an odd way to hold my hand).


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.