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October 4, 2014

The Government Gets Slapped Back to District Court in a Fake Stash House Robbery Case

Fake stash house robbery cases are an embarrassment to a civilized society.

Here's what happens. An undercover ATF agent finds a guy and does some deals with him. He then tells the guy he knows of a stash house where there are a lot of drugs and guns. Probably money too. Maybe a unicorn. Whatever it takes to get the guy interested.

The guy gets some other guys involved. They get weapons and gear up for this robbery of someone they believe is a drug dealer.

Then, with the undercover, they suit up, grab their guns, and plan to rob the stash house. All of this is on video. Then they're arrested (the agents make sure there are no bullets in the guns).

There is so little real crime in the world, the ATF has to make fake crime to investigate.

Law enforcement is often criticized for going after only the low hanging fruit. The clever folks at the ATF are taking it a step further and making up their own fruit to go after - they're going after synthetic fruit.

Ok, so these cases are a moral abomination and they're completely stupid. That said, prosecutors have a lot of discretion to prosecuted stupid cases. And judges generally can't dismiss a case because of stupidity.

An Awesome Discovery Request

One of these cases, though, wound up with the extremely clever people at the University of Chicago's federal criminal clinic.

There, the government indicted seven folks for conspiracy to possess the cocaine that didn't exist in the stash house that the government knew they were never going to rob.

The folks at Chicago's federal criminal clinic decided that, while they couldn't explore the stupidity of the program directly, they could make a preliminary showing that these are discriminatory - that black folks are prosecuted more than others - and get some really good discovery from the government. So they requested the following documents:

  • a complete listing of stash-house cases initiated by the United States Attorney with the involvement of the ATF or the FBI in the Northern District of Illinois from 2006 forward, along with disclosure of the race of each defendant charged in these cases;
  • the factual basis for the decision to initiate or pursue an investigation against the defendants named in the cases identified by the defense;
  • disclosure of any prior criminal contact between the defendants in each case and the agency responsible for investigating the case;
  • internal ATF and FBI manuals, correspondence, and other documents addressing fictitious stashhouse scenarios, including the protocols and directions to agents and informants with respect to such scenarios; and
  • any documents addressing how supervisory personnel are to ensure that individuals in such scenarios are not targeted on the basis of race, color, ancestry, or national origin.

And the district court said yes - the defense gets these documents.

The Government Wants Appellate Review

The government said that it really didn't want to turn over these documents. Instead, it wanted the Seventh Circuit to review the district court's decision.

So they asked the district court to dismiss the case without prejudice so they could appeal.

But a funny thing happened on the way to appellate review in United States v. Davis. The Seventh Circuit held that this trick - getting review by getting a district court to dismiss without prejudice - doesn't make the decision appealable. Because the dismissal is only without prejudice, the government can just re-indict. And because they can just re-indict, the decision isn't a final one. And because it isn't a final one, it can't be reviewed.

Grand Jury Indictments Are A Bother

Perhaps my favorite part of this case is where the government argues that the burden of securing a whole new indictment is so high that a dismissal without prejudice is really quite final for purposes of appeal.

This is really very precious. The government has to go into a grand jury that's probably on a whole different floor from their office and put an agent on for maybe an hour. That walk and hour of testimony is wearying, to say nothing of the .00001% chance that the grand jury will decline to indict.

The Seventh Circuit took no time slapping this down:

it seems safe to say that the likelihood of a grand jury reindicting the defendants is high and the difficulty of presenting the case a second time to the grand jury is minimal, given that the government's own undercover agent was a witness to most of the key events in the charged conspiracy.

The decision is a must read for anyone who is deep in the woods of finality and appealability. The rest of us will, I suspect, just have to wait to learn what was in that discovery that the government wanted to hide.

Or, better, maybe the government will get out of the business of prosecuting fake crime.

March 23, 2012

Using An AUSA's Name In A Published Opinion And The Streisand Effect

It's rare that a particular prosecutor is named in an opinion by a federal appeals court. Apparently the Department of Justice wishes it were more rare.

The Ninth Circuit issued a curious opinion last month, in United States v. Lopez-Avila.

Previously, the court of appeals had issued an opinion that was critical of a particular Assistant United States Attorney. The Department of Justice filed a motion asking that the Ninth Circuit remove the name of that prosecutor from the public opinion.

1378633_man_with_a_megaphone_1.jpgHere's the appellate court's response:

The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). Their job is not just to win, but to win fairly, staying within the rules. Berger, 295 U.S. at 88. That did not happen here[.]

It goes on, after noting that the appeal involved misconduct by the prosecutor in the trial court that was relatively obvious.

When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again. Yet, we cannot find a single hint of appreciation of the seriousness of the misconduct within the pages of the government's brief on appeal.

The Ninth Circuit then concludes,

upon initial release of this opinion, the government filed a motion requesting that we remove Albert's name and replace it with references to "the prosecutor." The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the government's suggestion and denied its motion. We have noticed that the U.S. Attorney's Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. E.g., Press Release, U.S. Attorney's Office for the District of Arizona, "Northern Arizona Man Sentenced to Federal Prison for Arson," (January 31, 2012) ("The prosecution was handled by Christina J. Reid-Moore, Assistant U.S. Attorney, District of Arizona, Phoenix"), available at http://www.justice.gov/usao/az/press_releases/2012/ PR_01312012_Nez.html. If federal prosecutors receive public credit for their good works--as they should--they should not be able to hide behind the shield of anonymity when they make serious mistakes.

This is the Striesand effect - where an effort to make something not be public gets it even more attention - in action.

Perhaps the best recent example of the Streisand effect was when Dan Snyder, the owner of the Washington Redskins, sued over media coverage he disliked.

My reaction to seeing Snyder's suit was that he seems really entitled.

It's hard not to think the same thing of the Department of Justice here.

March 13, 2012

A Fifth Circuit Opinion Shows Why People Would Want to Take Every Case To Trial, Even Though It's a Really Bad Idea

The federal criminal justice system runs on pleas. If every person charged with a crime demanded that the courts give them the attention that the Constitution guarantees them, United States Attorney's Offices wouldn't be able to prosecute as many people as they do, and federal district courts would grind to a halt.

In the New York Times this week, Michelle Alexander, a law professor at Ohio State University - who wrote The New Jim Crow, arguing that our criminal justice policy is, in essence, a continuation of America's legacy of not being so awesome about issues of race - wrote a piece arguing that criminal defense lawyers should band together and insist that all our clients go to trial to crash the system.

1226064_prison_cells_2.jpgThe Michelle Alexander piece has generated all kinds of attention, from geeky to professional.

I'm not unsympathetic to this view. Mandatory minimums drive too many clients to give up their rights too easily. Federal criminal practice should be about more than pleas, cooperation, and sentencing. And I think that just about any person who has handled more than two criminal cases had fantasized about the system-wide chaos that would ensue if we organized people accused of crimes.

But, like Brian Tannenbaum says, it's never going to happen. A criminal defense lawyer has to look out for each client, in each case. We're not doing systematic reform - we're doing individual representation.

If you want to reform the system, work for the ACLU or be a law professor. If you're practicing law, you should help individual people with individual legal problems. The faults of the system are a secondary concern (which doesn't mean that you won't think about them while failing to sleep at 3 in the morning - just that your job isn't to change them, except as you need to in the course of representing your client).

The problems with our system of federal factory justice, highlighted in Professor Alexander's work, are serious ones though. And the Fifth Circuit's recent opinion in United States v. Carreon-Ibarra highlights.

Mr. Carreon-Ibarra pled guilty to a count in an indictment that charged him with using a firearm in connection with a drug trafficking offense. It was charged under 18 U.S.C. 924(c).

At the plea hearing, he was told that the charge carried a mandatory minimum of 5 years.

As it happened, the gun in question was a machinegun. So his mandatory minimum was, in fact, 30 years.

The presentence report, prepared by the Probation Office, reported that Mr. Carreon-Ibarra's mandatory minimum was 30 years.

Mr. Carreon-Ibarra's counsel objected. The lawyer objected to the presentence report, and objected to the district court at the sentencing hearing.

The judge, appreciative of the fact that Mr. Carreon-Ibarra had been told he faced only a five-year mandatory minimum at the plea hearing, told Mr. Carreon-Ibarra that he considered him subject to only a five-year mandatory minimum. The court said it had the power to give him as little as five years on this count.

The district court them imposed a forty year sentence.

The problem arose, though, when the district court issued its judgment. In the written judgment that followed the hearing, the court said that Mr. Carreon-Ibarra pled guilty to the machinegun offense, which carries a mandatory minimum sentence of thirty years.

Clearly, the district court didn't read it's own judgment in light of its statements at sentencing.

The Fifth Circuit reversed, holding that Mr. Carreon-Ibarra's plea was deficient because he wasn't accurately told what the mandatory minimum would be.

How does this happen? How does a smart judge, appointed by the President and confirmed by the Senate pay this little attention to documents that send a man to prison for forty years?

It happens because there are too many federal criminal cases that have become too routine for courts to give the attention that these cases need.

And that's why people who are going through the criminal justice system are angry.

They can feel that their cases don't get deep attention from the courts or the prosecutors. People know when they've been turned into file numbers or claims. Claims that send them to prison for massive amounts of time. People resent how little the most important case in their lives matters to the people who make decisions about them.

It makes people want to do crazy things to tear the system down.

Even though that would be a bad idea.

December 19, 2011

How To Help Hundreds Of Women Who Have Been In The Criminal Justice System


Hi. I know you normally come here looking for the very latest in mildly snarky commentary on what's gone well for the defense in the federal circuit courts. Trust me, we'll be back to that very soon.

I wanted to interrupt our regularly scheduled programming with a request for money this holiday season.

If you read this blog, you're likely interested in how people are treated in our criminal justice system. One organization is doing a lot to improve things for people who have been convicted of a crime.

Our Place DC is a really cool and tremendously effective organization. [FN1] They help women who are getting out of prison reestablish their lives and reconnect with their communities and their families. You can donate to Our Place at this link.

Here's a short movie about Our Place and its work:

Our Place does a lot that's great. One tremendously important program - that I am a huge fan of - are prison trips for families that Our Place makes possible.

Women in DC who are convicted of a crime and sentenced in prison - whether in federal court or the D.C. Superior Court - serve their sentences at the FCI in Danbury Connecticut, the FCI in Hazelton, West Virginia, and in other federal prisons around the country.

Their families are most often unable to visit them, because the prisons are so remote. Our Place organizes trips for family members of incarcerated women to visit these prisons. Without Our Place, a prison sentence for these women could mean that they wouldn't see their kids for years.

I know it's a bad economy and there are a lot of worthy causes asking for your donations. Please consider Our Place. They do great work for a great number of women.

You can donate at this link.

[FN1] - in the interests of full disclosure, I'm on the Our Place board.

September 28, 2011

The Increasing Number of Ways The Feds Can Prosecute You Troubles The Wall Street Journal

Those tree-huggers over at the Wall Street Journal have published a characteristically liberal piece about how the federal government is throwing more of its citizens in prison for no good reason.

As the article starts,

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind." This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them. As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.

The article lays the blame squarely on Congress in some pretty funny ways. It's worth a read.

This has me wondering if the problem of overcriminalization (and, yes, if the NACDL and the Heritage Foundation both think something is a problem, then odds are it is) stems from having legislatures, instead of judges, making criminal laws.

If you have a common-law model for when crime is caused, you're much less likely, I think, to have such weak politically-motivated and poorly-conceived crimes for people to run afoul of.

September 27, 2011

Conrad Black Writes About His Prosecution

Over at the Huffington Post, Conrad Black writes, from prison, about his experience with the United States criminal justice system. (Spoiler Alert - he doesn't like it).

Mr. Black was prosecuted for fraud by the United States government. He's on the last few months of a prison sentence. Here are some of his thoughts:

Before this cataract of horrors began, I had known that there were some dodgy aspects to the U.S. legal system, and feared that the plea bargain system was essentially a bazaar for the exchange of inculpatory perjury for reduced sentences or immunities, a traffic that would lead to the disbarment of prosecutors in most serious jurisdictions.

He also notes that the United States has too many people in prison, and that our nation doesn't recognize people's rights:
The United States has six to 12 times as many incarcerated people per capita as other comparable, prosperous and sophisticated democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. The Fifth, Sixth, and Eighth Amendment guaranties of due process, the grand jury as assurance against capricious prosecution, no seizure of property without fair compensation, access to counsel, an impartial jury, prompt justice, and reasonable bail, (I enjoyed none of these rights), have all been jettisoned while the Supreme Court has been drinking its own bathwater.

Moreover, he is skeptical of how prosecutors use their power and about the efficacy of public defenders:
Prosecutors routinely seize and freeze defendants' assets on the basis of false affidavits to prevent engagement of (avaricious) counsel of choice; there are many catch-all charges apart from the Honest Services statute that the Supreme Court rewrote in our case, that are impossible to defend, and prosecutors attack with unfeasible numbers of counts and have the last word before unsophisticated juries that have to rely on their memories of lengthy and complex proceedings and have been pulled from jury pools that have been softened up by an unanswerable prosecution lynching in the media. The public defenders are Judas Goats of the prosecutors rewarded for the number of victims they load on to the conveyor belt to the prison industry, not for the services they perform.

Finally, Mr. Black is leaving this country as soon as he's released, and he's not planning on returning.

Also, he's publishing a memoir.

August 9, 2011

Important New Decision on the Use of Cell-Phone Data to Locate Someone Just to Arrest Them

Judge Gauvey, a magistrate judge on the United States District Court for the District of Maryland has issued a lengthy, thorough, and important decision on the use of cell phone data by law enforcement just to arrest someone. The opinion is available here (thank you Volokh conspirators for the link).

Here's the juicy bit:

the government asks to use location data in a new way -- not to collect evidence of a crime, but solely to locate a charged defendant. To some, this use would appear reasonable, even commendable and efficient. To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants. In any event, there is no precedent for use of location data solely to apprehend a defendant in the absence of evidence of flight to avoid prosecution. The government did not submit, and the court did not find, any sufficient authority for this use of location technology. In light of legitimate privacy concerns and the absence of any emergency or extraordinary considerations here, the Court concludes that approval of use of location data for this purpose is best considered deliberately in the legislature, or in the appellate courts.

The opinion has generated a lot of attention, and rightly so. Cell phones are ubiquitous - if the government can get access to where we are merely because we have a cell phone, we're moving a lot closer to a government monitoring system, albeit a court approved one, than many people are comfortable with.

Orin Kerr, over at Volokh, argues that Judge Gauvey is wrong. He also has an odd ad hominem attack on her at the end of the post, of the "I'm not saying something bad, I'm merely quoting other people who say she is." The merits of the issue are probably more interesting than the personal stuff.

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 20, 2011

The Eleventh Circuit And The Unwilling Pro Se Criminal Defendant

In my experience, many federal prosecutors play fair. They want to get their conviction, to be sure. The law gives them many advantages, and they're happy to avail themselves of what the law gives them. But I don't know of many federal prosecutors who go out of their way to take away a defendant's lawyer.

Then again, I don't practice in Georgia.

The Eleventh Circuit, today, reversed and remanded a case where a criminal defendant went to trial without a lawyer, because the government opposed him receiving appointed counsel. The case is United States v. Ly. Apparently, in some U.S. Attorney's Offices, they read Gideon narrowly.


Shortly after he was charged with filling prescriptions "outside of the usual course of professional practice and without medical purpose", under 21 U.S.C. 841(a)(1) and 21 C.F.R. section 1306.04, Mr. Ly, asked for appointed counsel. The government opposed his request for a lawyer. A magistrate judge worked with federal probation, and determined that Mr. Ly's wife had significant assets, and that Mr. Ly had shared these assets with his wife. So the court determined that Mr. Ly cannot have an appointed lawyer.

The court's strategy, apparently, was that Mr. Ly would come up with the money if the request for appointed counsel was denied.

Mr. Ly did not come up with the money. He went to trial without a lawyer. The government's case in chief consisted of:

(1) expert testimony about the regulation of controlled substances; (2) expert testimony regarding standard prescription practices and how Ly's actions deviated from those standard practices; (3) testimony from eleven of Ly's patients explaining Ly's prescription practices; (4) testimony from four retail pharmacists who became suspicious of Ly's practices and therefore stopped filling prescriptions written by Ly; (5) evidence that pharmaceutical companies sold large quantities of controlled substances to Ly and that one company stopped selling to Ly because of these purchases; and (6) the results of a lawful search of Ly's house and office.

In response, Mr. Ly tried to call his prior patients to testify that he was a good doctor who provided quality care. The court would not let him. He called a few witnesses, who offered little in support of his cause.

When the rest of Mr. Ly's evidence was in, the judge had this conversation with him:

THE COURT: All right, Dr. Ly, I've heard you say that you have no more witnesses. Do you intend to testify in this case?

DR. LY: No, Your Honor.

THE COURT: Now, do you understand that you have an absolute right to testify in your own behalf?

DR. LY: Yeah, I know, but without counsel, Your Honor, I can't testify.

THE COURT: So it is your personal decision not to testify in this case?

DR. LY: Because I don't have counsel who can ask me questions.

THE COURT: Is it your personal decision not to testify in this case?

DR. LY: What do you mean, Your Honor?

THE COURT: Well, I've told you you have a right to testify. Is it your personal decision not to testify in this case?

DR. LY: No. I decide not to testify because I don't have counsel to ask me questions. I cannot just be cross-examined without my counsel to ask--my own counsel to ask me questions.

THE COURT: So you choose not to testify, then?

DR. LY: If I don't have my own counsel -

THE COURT: - Well, you know you don't have counsel, Dr. Ly. That's not the question. You've not had counsel since this trial started. Now, this is your opportunity to testify or not testify, and I want you to tell me on the record whether you intend to testify or not testify.

DR. LY: That decision I can't make--I can't make it in the split of a second, Your Honor. Could you give me . . .

THE COURT: Well, I'm assuming, then, and I'm taking that as a decision by you not to testify in your own behalf in this case.

DR. LY: I wouldn't agree with that.

THE COURT: Well, we've got a jury sitting in the box, and it is your time to testify. And so you're going to have to make that decision, and you've had months leading up to this trial to make that decision. Now, I'm not going to keep everybody waiting. I'm not going to keep the jury waiting, so you make a decision right now whether you're going to testify or not testify.

DR. LY: I'm not going to testify.

Mr. Ly did not testify, was convicted, and was sentenced to serve 97 months in prison.

The thing about that conversation that the court had with Mr. Ly is that Mr. Ly is actually wrong when he says he can't testify unless he has a lawyer. He can testify, he'd just testify in the narrative - he'd just talk, instead of being asked questions. But the district court judge never corrects that mistake, and allows him to persist in the belief that he's unable to testify because he has no lawyer. Unable to call any witnesses or produce any other evidence, Mr. Ly doesn't testify because he thinks he isn't allowed to.

The Eleventh Circuit today said that violated Mr. Ly's constitutional rights and reversed and remanded.

The issue is tricky - as the court explains, normally there's a default position on a constitutional right:

In the right-to-counsel and guilty-plea contexts, the district court must satisfy itself that the defendant has waived his right knowingly and intelligently . . . and if the court is not so satisfied, it forces upon the defendant the constitutional default. In the case of the right to counsel, the default is an appointed attorney [sic - as to the facts of appointing counsel in this case], and in the case of a jury trial, the default is a plea of not guilty, followed by a jury trial.

In a question of whether to testify, there's no default. A criminal defendant has an absolute right not to testify and an absolute right to testify. It's totally his choice either way.

The court notes that this decision is normally informed by counsel. Here, the government went bare-knuckles to keep Mr. Ly from having a lawyer. So a lawyer he was kept from having. When a criminal defendant goes to trial without a lawyer, it is exceptionally hard to make sure his constitutional rights are not violated.

Pro se defendants are, frankly, a problem. It's sad and wrong to have someone go without a lawyer when their freedom is at stake. If the person freely chooses to go it alone, the court has to let him engage in that folly. But here, where a person was asking, repeatedly, for a lawyer, to force him to trial without one is wrong.

If the government's concern was that Mr. Ly was hiding money and trying to avoid paying for counsel, they had another option. The government, instead, could have sought appointed counsel and asked for a contribution order. That way, if Mr. Ly was convicted, at the time of sentencing the court would have conducted an inquiry into what money was available to pay the lawyer for his services from Mr. Ly's funds. And the court could have made then ordered Mr. Ly to pay as much as he was able for his own defense. Here's a link to one way to do the order from the U.S. Court's webpage.

The government did not ask for a contribution order. They asked for a trial without defense counsel. Looks like they may get another one.

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 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.

October 5, 2010

Prosecutorial Misconduct Goes Unpunished

Here's a sad, though not surprising, report.  Apparently, in California, prosecutorial misconduct goes unpunished.  According to a blog on the San Francisco Weekly's page, there have only been six cases of California disciplining a prosecutor for misconduct, despite a study identifying prosecutorial misconduct based on appellate decisions in more than 700 cases.

This is troubling for three reasons.  First, most cases plead, and don't result in an appeal.  So, if there are 700 cases where misconduct can be recognized in an appellate court, that radically understates the amount of prosecutorial misconduct out there.

Second, only six prosecutors were disciplined out of the 700 cases; which is incredibly low.

Third, the post only says that they were disciplined.  It doesn't say how they were disciplined.  A discipline can include something like an admonishment; it doesn't necessarily mean that anything actually happened to the prosecutors to prevent them from continuing to engage in misconduct in the future.

This looks a lot like the kind of behavior that one finds in, say, the mortgage industry.  People are put in jobs where misconduct isn't punished, where racking up completed cases (either of mortgages sold or convictions obtained) is rewarded, and where there are few other checks on the actions of the people in the system.  Of course, folks will look into what happens at Enron.  Why won't they investigate prosecutorial misconduct?  Oh, right, because the people who would do that investigation are 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.

June 22, 2010

Perez Hilton, Miley Cyrus, Child Pornography, and Kaiser, LeGrand & Dillon PLLC

I was interviewed recently for an article about a Perez Hilton picture of Miley Cyrus.   There's something a little more interesting about this that I alluded to when I was talking to the reporter, but that didn't come out as clearly in the article.  If you're simply looking for Perez Hilton/Miley Cyrus information, feel free to click the article; if you're curious about one interesting legal issue with the situation, read on.

First, a bit of background.  Miley Cyrus is 17, and she appears to be trying to present herself as an adult (in at least two senses of the word).  As a part of this campaign, she apparently emerged from a car in a short skirt without any underwear on.  Perez Hilton snapped a picture up her skirt that revealed what would have been hidden if she'd been wearing underwear.

Here's the interesting point.  Assume the image is pornographic (I haven't seen it, so don't have an opinion).  If Miley Cyrus were, say 19, and this had happened, the interesting question would be whether Perez Hilton's photograph was pornography, and, then, whether there was any redeeming social value to the image.  Because Miley Cyrus has been spending a lot of time in the public eye displaying a more provocative image of herself, Perez Hilton could argue that his photograph was somehow a comment on that, and could probably argue successfully that it was a further conversation about Miley Cyrus and how provocative she is.

Here, though, Miley Cyrus is under 18, and the Supreme Court has held that a pornographic depiction of a minor is per se obscene.  Which means that it doesn't matter if Perez Hilton took the picture in order to comment on a pressing social issue; it can be banned based on the fact that it's pornography and that she's under 18 alone.  Her status as a public figure is completely irrelevant to the analysis.

The interesting question is this - does that comport with our current understanding of how protective we should be of someone like Miley Cyrus?  She's already in the public realm in a pretty explicit way.  At some point, when someone is so close to the age of majority, and is already a public figure, can they lose the protection that the Supreme Court clearly intends?  

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.

January 15, 2010

Does Law Enforcement Get Laid Off When the Crime Rate Drops?

In most industries, when there's a drop in activity in that industry, people get laid off. For example, lots of title companies laid people off when the real estate market slowed down and there were fewer closings. When people buy fewer cars, autoworkers get laid off. Sadly, in this economy, one sees quite a few examples of this phenomenon.

Recent reports of a drop in crime got me wondering, what happens to law enforcement if the crime rate drops? If, for example, there were a 50% decrease in people using drugs in the country, would half the DEA agents get fired? What if it were a 10% drop?

Or, instead, would law enforcement just push for prosecution of more marginal cases? Perhaps folks who they would have decided aren't appropriate for prosecution would now be thought of as public enemies.

Law enforcement is a competitive business. Federal agents can reasonably fear losing funding for their jobs if they don't bring in the statistics to justify their positions. Would they push for more marginal prosecutions to keep bread on their table? Would you?

This is, perhaps, a little fanciful, but I wonder, is there a single example of a prosecutor's office or law enforcement department losing staff because of a drop in the crime rate? If not, why not?

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.

January 5, 2010

Kaiser, LeGrand & Dillon PLLC on the Radio

I was interviewed today on The LaVar Arrington show with Chad Dukes on 106.7 FM here in Washington DC about Gilbert Arenas and his legal troubles.

Click here if you'd like to here the interview.

My basic point was that Mr. Arenas is likely going to be able to work out a plea to a no-jail misdemeanor when you look at how he's handled this and who his lawyer is. But, hey, I could be wrong.

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.

December 10, 2009

Round Up The Usual Suspects!

The National Law Journal reports that senators have been questioning Lanny Breuer about why there haven't been more fraud prosecutions. Apparently, the Senate wants the Department of Justice "to do more about those who might have contributed to the credit crisis and the recession."

Why does there have to be a criminal enforcement response to every macroeconomic change that negatively effects people? Are there any serious economists who think that recessions are caused by white collar crime?

More plausible, is that members of the Senate stand a better chance of being reelected if they badger DOJ into trying to put people in prison.

That's change we can believe in.

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.