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August 29, 2012

The Government Convicts A Man In A Drug Conspiracy Case Without Evidence He Was Involved In A Drug Conspiracy And The DC Circuit Reverses


It's very fashionable these days for United States Attorney's Offices to bring large indictments charging many people with involvement in a drug conspiracy.

They almost always get convictions.

381260_conspiracy.jpgYet in the case of United States v. Gaskins, the D.C. Circuit - in an opinion written by a former federal prosecutor - ruled that the United States Attorney's Office indicted, and a jury convicted, a man for being a part of a drug conspiracy when no reasonable juror could have found that he was involved.

The government's case was pretty standard for a large drug conspiracy. They indicted 21 people, including Mr. Gaskins. The government had wiretaps. The government executed search warrants.

After the indictment, lots of people flipped and testified for the government. Many of them were working down from a mandatory life charge.

Again, in a drug case, this is pretty much par for the course.

Yet none of this evidence tied poor Mr. Gaskins to the conspiracy he was indicted for belonging to.

Here's how the D.C. Circuit described the government's best evidence based on a cooperator:

Briggs . . . testified that he was motivated to get his pending criminal cases resolved and to get out of jail. In January 2004, he entered into a plea agreement pursuant to which he was released to help the government obtain information regarding several suspects, including Gaskins. As a condition of release, he had to report to the FBI on a daily basis. Briggs testified that he had multiple contacts and conversations with Gaskins after he was released. Although he said that Gaskins helped him fill out job and housing applications, Briggs said that none of their interactions involved the subject of narcotics.

That Gaskins - helping a man get housing and a job. Still, not exactly Stringer Bell.

The government executed a search warrant at Mr. Gaskins' mother's house. As the D.C. Circuit said:

In addition, the government searched the apartment in southeast Washington where Gaskins lived with his mother. That search yielded neither drugs, nor records, nor any other evidence linking Gaskins to the conspiracy. Nor did it (or any other search) yield evidence that Gaskins had expensive jewelry, clothes, cars, or homes -- as searches did uncover with respect to other conspirators. The government's only evidence was that Gaskins lived in his mother's modest apartment.

And of the wiretaps:

FBI Special Agent John Bevington testified that the government conducted four months of wiretaps, from February 17 to June 26, 2004, during which it intercepted more than 14,000 calls. Recordings of many calls were played to the jury. Bevington and Detective Hall testified that two signature traits of a narcotics conspiracy are using coded language and asking conspirators to go to a land line, both of which could be discerned in several of the recorded calls. None of the calls by other alleged conspirators mentioned drugs or drug transactions in connection with Gaskins, whether in clear or in coded language. No call in which Gaskins participated mentioned drugs or drug transactions at all, in code or otherwise, and he was never asked to go to a land line.

See - that land line thing from Pulp Fiction is real.

The jury, nonetheless found him guilty.

Actually, to be more specific, the jury eventually found Mr. Gaskins guilty. The narcotics conspiracy he was alleged to be involved in had four separate objectives. The jury first found that he was guilty of the conspiracy, but that the government hadn't proven that he was seeking any of the objectives of the conspiracy. The district court, rightly puzzled by this, sent the jury back to resolve the conflict (over Mr. Gaskins' objection). The jury, then, returned a guilty verdict, determining that Mr. Gaskins was involved in the drug conspiracy.

Because the D.C. Circuit resolved Mr. Gaskins case based on the sufficiency of the evidence, and not based on the trial court's handling of the odd verdict form, the court of appeals did not resolve the question of what the court should have done with the odd jury determination.

Mr. Gaskins was ultimately sentenced to 22 years. The D.C. Circuit ordered him released and the judgment of conviction vacated after oral argument.

Think about that. Your government sought 22 years for a guy who wasn't on a wire, who no snitch said was involved, and who - when they searched his house - had no evidence of drugs there.

January 17, 2012

Sometimes The Problem With The Jury System Is The Jurors

Joseph P. Collins was charged with securities fraud, mail fraud, wire fraud, making false statements to the Securities and Exchange Commission, and conspiracy. He went to trial and, we can imagine, spent weeks - possibly months - working with his lawyers to diligently defend himself and his rights. His trial took twenty-two days of testimony - more than four weeks in a federal courtroom.

Finally, it was messed up by two maladjusted jurors and a judge who wanted to handle things alone.

1330873_courthouse.jpgWe are all bit players in each other's lives. Everyone understands that. In Mr. Collins' case, however, it's not unlike a world where Rosencrantz and Gildenstern decide that they'd rather kill Hamlet than travel with him.

The jurors started deliberating on Mr. Collins' fate on July 1, 2009. That same day, completely unrelated to this case, the Coast Guard published new regulations for fireworks safety in Massachusetts, and a new income-based payment option for student loans became available.

On the fifth day of deliberations, the jurors were having trouble. They sent a note to the court describing that they were having a hard time reaching a verdict. The court, after consulting with the attorneys for the government and Mr. Collins, sent a note back, saying that they should keep at it.

Later that day, a Court Security Officer reported hearing a kerfuffle from inside the jury room. The CSO entered the jury deliberation room. There, one juror accused another juror of physically threatening him.

The trial judge was alerted. He brought the jury back into the courtroom and told them "to show respect for one another." He then sent them home for the day.

The next morning, shortly before 10 a.m., two notes came out from the jurors. The first was from juror number 4. It read,

I am writing to express my concern regarding the conduct of juror number 9 . . . . Although I appreciate your efforts to control the frequent insults I've endured, the threat of bodily harm brings this abuse to a whole new level. Specifically, in a loud and belligerent man[ne]r juror [9] threatened to "cut off your (my) finger." She made that statement twice. In the same tirade she stated, "I will have my husband take care of you." These threats were made yesterday afternoon July 8, 2009. Rest assured I will not allow such threats and intimidation [to] alter my vote when it comes to determ[in]ing a verdict in this case. I am concerned, how[ev]er, [that] hearing these threats may affect other jurors. Regardless, I believe this is not the proper way to deliberate and the Court should be made aware of this conduct.

The second note was from the foreperson.

In regards to the earlier note . . . from Juror 4 . . . , it is my personal opinion that the altercation yesterday could be traced to both parties involved. There ha[ve] also been conversations on numerous occassions [sic] regarding respectfulness on the part of Juror 4.

Imagine sitting in a courtroom, nervously waiting to hear if you'll be convicted of several serious fraud offenses, when you learn that two of the people deciding your fate are spending their time blaming each other for not being more respectful. Awesome.

Later that afternoon, the foreperson sent another note saying,

There's been some concern amongst some of the juror's [sic] regarding odd behavior on the part of Juror #4 . . . . During deliberations on 7/2, [Juror 4] changed his vote on a charge, bringing a unanimous decision. However, [Juror 4] then attempted to make his vote contingent upon the room agreeing blindly on a charge to be voted on later. He wanted to barter. In my opinion, this is at the heart of yesterday's altercation between juror's [sic] 4 and [9]. To compound this issue, juror 4 has made it clear he would prefer to be a hung jury than do further evidence research.

The court decided that it needed to have a private conversation with Juror 4. It told the parties so. The defense lawyer said that he was not agreeing that the court should speak privately with Juror 4.

Juror 4 and the court had a conversation which is remarkable only that it shows the extent to which a federal district court judge is willing to delve into a terribly dull he said/she said conversation to avoid retrying a multi-week fraud trial. The court encouraged Juror 4 to keep an open mind, and reminded him that it was really important to try to reach a verdict.

The next day the jury sent out a note that they had a partial verdict. Mr. Collins was convicted of two counts of securities fraud, two counts of wire fraud, and conspiracy.

In United States v. Collins, the Second Circuit sent the case back for a new trial.

The court of appeals held that a person has a right to be present at each part of their trial. That includes when you talk to jurors.

The appellate court found that the district court's remarks to Juror 4 were a supplemental instruction. And,

When a supplemental instruction is given ex parte, without first consulting counsel, it violates a defendant's right to be present.

Moreover, the Second Circuit noted that,

Where, as here, the ex parte communication involves a supplemental instruction to a single juror in a minority position, the potential for prejudice is particularly acute.

And so, Mr. Collins goes back for a new trial. Surely, after his first, he'll have lots of trust in the process of trial by jury.

Related Post: Going to Prison For What A Jury Doesn't Think You Did

December 5, 2011

Club Rules, Prejudicial Evidence, and Hard Distinctions About Child Pornography

In a classic Simpsons episode, Homer Simpson, as a young person, is excluded from a club of his peers - the club is called the "No Homers Club." Homer complains, noting that there was a Homer inside the clubhouse.

He's told - "It says no Homers. We're allowed to have one." (Incidentally, the "No Homers Club" is now the name of many Simpsons fan clubs).

DSC01433_z.JPGClub rules tend, I think, to be silly. The Seventh Circuit's recent opinion in United States v. Loughry however, meant the difference in whether a child pornography conviction stands can depend on the rules of a private "club."

Robert Loughry was accused of being an administrator of an online club that had very rigid rules. The club, called the "Cache," existed to allow users access to a particular kind of child pornography. Other kinds were explicitly prohibited.

As the Seventh Circuit explained it,

Only "lascivious exhibition" pornography, which included the exhibition of girls' genitals, was permitted on the Cache. Images depicting sexual contact or other sexually explicit material were prohibited.

Mr. Loughry was accused of distribution of child pornography, advertising child pornography, and related conspiracy counts. He was not accused of possession of child pornography.

The government introduced evidence of the images found at the Cache. As the Seventh Circuit explained,

The site was divided into sub-forums and topic areas. There was a non-nude gallery area and a nude gallery area, which was subdivided by ages into "18 and over nude," "13-18 nude," and "under 13 nude" categories. The Cache's rules prohibited posting any images depicting sexual contact, masturbation, penetration, boys, or men. According to several witnesses, the purpose of the Cache was to provide its members with access to child pornography consisting of the lascivious exhibition of the genitals of minor girls.

During the trial, the government introduced evidence of Mr. Loughry exercising the kind of role in the Cache that one would expect an administrator to exercise - he promoted members, he kicked them out, and he created new member accounts.

The last government witness, though, introduced evidence of significant hard-core child pornography found on Mr. Loughry's computer. It was the kind of child pornography that would not have been allowed in the Cache. It's described in the opinion, if you want to know more.

Mr. Loughry was convicted and sentenced to 30 years in prison.

On appeal, he challenged the district court's decision to admit the hard-core child pornography from his computer as unduly prejudicial under Rule 403 of the Federal Rules of Evidence. Again, keep in mind that Mr. Loughry was not charged with the crime of possessing the hard-core child pornography on his computer.

The court of appeals took the district court to task for not looking at the hard-core child pornography before ruling on the admissibility question. Because the trial judge didn't look at that evidence, the court of appeals reasoned, that judge couldn't have made an informed decision about how prejudicial it was.

As the court of appeals said it,

The challenged videos include the kind of highly reprehensible and offensive content that might lead a jury to convict because it thinks that the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the charged crime. Given the inflammatory nature of the evidence, the district court needed to know what was in the photographs and videos in order for it to properly exercise its discretion under Rule 403. Without looking at the videos for itself, the court could not have fully assessed the potential prejudice to Loughry and weighed it against the evidence's probative value.

Describing the kind of hard core child pornography that was shown, the court of appeals determined that it was prejudicial - and that the prejudice outweighed the value of admitting it, noting,

Such displays have a strong tendency to produce intense disgust.

The Seventh Circuit then found that the judge's error was not harmless, and reversed and remanded the case.

Child pornography cases are hard, and it is challenging to make the kinds of distinctions that the Seventh Circuit made here. Good on them for doing this work though, even though it's hard.

August 29, 2011

The Third Circuit Holds That A Jury Can't Infer Intent From Constitutionally Protected Silence

So often the difference between doing something normal and committing a crime is what's in someone's mind. White collar crimes turn on intent - mail fraud, wire fraud, securities fraud, and bank fraud all look to what was in the mind of the person accused of the crime.

Yet, intent is also a hard bit of evidence to secure. Unless there's a smoking gun document - which is ever more likely in this age of email - there is no direct evidence of intent in most cases.

And, ultimately, what a person accused of a crime intended is a question for the jury. As an NACDL article on the topic notes, we know that Martha Stewart was thinking because a jury says we did.

The way a jury decides intent, therefore, is crucial. Which makes the Third Circuit's decision in United States v. Waller so very interesting.

There, the Third Circuit reversed and remanded for a new trial because of the intent instruction used by the district court.

The trial court instructed the jury that:

Intent ordinarily may not be proved directly because there is not a way of fathoming or scrutinizing the operation of the human mind. However, you may infer a defendant's intent from all of the surrounding circumstances. . . . You may also consider any statements made or omitted by the defendant, as well as all other facts and circumstances in evidence which demonstrate the defendant's state of mind.

The jury heard this instruction, then found that the defendant had the requisite intent - Mr. Waller was found guilty.

The Third Circuit found that this instruction violated Mr. Waller's constitutional rights.

The instruction contained the phrase "You may also consider any statements made or omitted by the defendant" - Mr. Waller's counsel argued that this violated Mr. Waller's right to remain silent.*

The Supreme Court has already held that a prosecutor can't argue that someone is guilty because he invoked Miranda (much the same way the Fourth Circuit has held that a refusal to consent to search does not give a police officer permission to search).

The Third Circuit just extended that holding to a trial court's instructions.

Because the trial court's instruction let the jury infer intent merely from Mr. Waller invoking his constitutional right not to talk when he was arrested, or not to speak in his own defense at trial, the instruction violated his rights.

 

* Doctrinally, there are a few distinct rights to remain silent. One is a Sixth Amendment right to counsel, which undergirds the requirement that a person be given Miranda warnings. The other right is a Fifth Amendment right to refuse to self-incriminate. There is also a Due Process right not to speak.

August 9, 2011

The Sixth Circuit Lets A Jury Hear About The Accident of Federal Jurisdiction In A Michigan Swamp Murder

Our federal death penalty is incoherent policy. Death penalty cases are expensive, incredibly time consuming, and, in light of how in the federal system life really does mean life, pointless.

Right now, the First Circuit is considering whether the governor of Rhode Island has to hand over a man serving a life sentence in that state.

The federal government wants to prosecute him federally, for no reason other than to kill him - he's already serving a life sentence. Rhode Island doesn't have a death penalty, and thinks that it can adequately handle this relatively routine murder case without federal intervention.

There's excellent coverage of this dispute at this criminal justice blog, as well as this coverage from the Boston Globe.

What good does a federal prosecution do? Why does the government want to spend more than a million dollars in this economic environment just to get another notch on its belt? Excellent questions that I don't know the answer to.

The legal question in Rhode Island is tricky, and it isn't clear the governor will win this one. I'm looking forward to seeing the national debt increased by the cost of this prosecution. Others are excited about this too.

Yet another example of how our federal death penalty policy makes no sense can be found in the United States Court of Appeals for the Sixth Circuit's opinion in United States v. Gabrion.

Mr. Gabrion was convicted of killing a woman and her infant child. He had been accused of raping her, and was facing trial on that allegation. To prevent her from testifying, he killed her in a swamp in a national forest.

Lines in the Swampland

He was charged federally with that murder because the murder happened in a national forest. Indeed, her body was found 227 feet into the park - had he been 227 feet north when he killed her, he would have been in a park run by the State of Michigan and there would have been no federal jurisdiction for the charge.

If there's no federal jurisdiction, there's no possibility of the death penalty.

An Oddly Important Accident

Mr. Gabrion's lawyer thought this was an odd coincidence of location. Less than a football field's difference in a swampland and the man couldn't be put to death by his government. He thought that decisions about who lives and who dies should not be made on such an arbitrary basis.

Making this accident of location worse, Michigan is the only state in our Union that has a provision in its state constitution that prevents it from imposing the death penalty. Capital punishment has been illegal in Michigan since 1846. Michigan is a seriously anti-death penalty state.

How Death Is Imposed

Death is different, and death penalty cases are handled differently than other cases in a number of ways. One way is that a jury decides first whether the person is guilty and, only if they find guilty, do they decide whether the death penalty should be imposed.

To guide their decision Congress requires the jurors to look at things that mitigate the person's conduct and that aggravate it. The mitigators are:

  1. Impaired capacity
  2. Duress
  3. Minor participation
  4. Equally culpable defendants
  5. No prior criminal record
  6. Disturbance
  7. Victim's consent
  8. Or, finally, "other factors."

Importantly, the statute requires juries to consider "any mitigating factor." 18 U.S.C. S 3592(a). (Realizing these factors are sometimes a little opaque, you might want to check out the statute - it elaborates on them a bit).

The District Court Holds That "Any" Means "Not Any"

Mr. Gabrion's lawyer argued that he should be able to argue to the Michigan jury that the federal government was trying to kill someone because they were less than a football-field's distance inside federal land. He wasn't saying it meant Mr. Gabrion couldn't be killed - just that it's something the jury was allowed to consider when it made the decision about whether to impose death.

The district court said no. The "any mitigating factor" language was, in essence, not expansive enough to include this mitigating factor.

Mr. Gabrion was sentenced to death.*

The Sixth Circuit Holds That "Any" Means "Any"

The Sixth Circuit reversed, holding in part that there can be no limit on what a jury should consider. Quoting another court, the court of appeals said "There is no qualification or limitation other than the factor "mitigate" against a sentence of death."

So, for death counsel, it's now permissible to argue that it's wrong for the federal government to assert jurisdiction just to try to kill someone, at least in the Sixth Circuit.

 

* To be clear, there is a lot more going on in this opinion, and in Mr. Gabrion's case, than this federal jurisdiction issue. For one thing, Mr. Gabrion seems like kind of a jerk. He punched his lawyer during the proceedings and, according to the court of appeals, faked being crazy.

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 23, 2009

Sotomayor on Acquitted Conduct?

There is a lot of discussion on Sentencing Law and Policy about judges using acquited conduct at sentencing (see the posts here and here) in light of a recent Eight Circuit opinion. In that case, United States v. Papakee, Judge Bright wrote separately to call on the Supreme Court to address the Due Process implications of sentencing a person based on acquitted conduct, saying,

"the use of 'acquitted conduct' at sentencing in federal district courts is uniquely malevolent." Id. (Bright, J., concurring). We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit. It is now incumbent on the Supreme Court to correct this injustice.

I blogged on this a few weeks ago, and think Judge Bright is exactly right (see Going to Prison for What a Jury Doesn't Think You Did). The issue, as I see it, is really one of respect for the jury.

Jurors want their jury service to matter, and they think that they are playing an important role in our collective civic life. But that's just not true if judges are free to ignore what juries decide.

After Judge Bright's concurring opinion, Papakee will, doubtless, file a petition for certiorari to have the Supreme Court review the issue. If it does, what will the Court's newest member, soon-to-be-Justice Sotomayor think about the acquitted conduct issue?

Judge Sotomayor applauds jury service

I think there's reason to be hopeful. Judge Sotomayor is a big fan of juries. As reported in the L.A. Times (which incorrectly says Sheldon Whitehouse is a senator from Maryland), soon-to-be-Justice Sotomayor said in her confirmation hearings that

I have found in my experience with juries that virtually every juror I have ever dealt with came away heartened and more deeply committed to the fundamental importance of their role as citizens in that process.

Surely, if cert is granted, the woman who said that is not going to say to those jurors, in effect, "thanks for your service, but we don't care."

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 16, 2009

Standing Up for Criminal Defense Lawyers

Judge Pollak on the Eastern District of Pennsylvania has issued an opinion that is remarkable. He granted a new trial based on impermissible vouching by the prosecutor during closing arguments, and, as I read it, the prosecutor basically not being a very good guy. Check the opinion out here. [Note - Impermissible vouching is when a prosecutor tells the jury that a witness is believable based on facts outside of the evidence at trial]

Let me say, at the outset, that Judge Pollak rocks.

Judge Pollack

There are two remarkable things about this opinion. First, Judge Pollak addresses what is too often a favorite argument of prosecutors - that criminal defense lawyers are slick liars who are paid to confuse juries, unlike the gentlemen and women in the U.S. Attorney's office who are completely lacking in self-interest (which is why AUSAs tend to not be ambitious; notice how they almost never pursue a later career in politics).

Judge Pollak noted that

[T]he prosecutor accused [the defendant]'s counsel of going "beyond the pale" in suggesting that the government was concealing the truth from the jury by failing to provide telephone records . . . and by "accusing an honorable" officer of testifying untruthfully.

I would wager that any reasonably experienced criminal defense lawyer has heard this argument - how dare the lawyer challenge a law enforcement witness! Worse are two stories the prosecutor told in his rebuttal argument:

I'm reminded by [defense] counsel's argument of something that occurred to me, not that long ago. I ran into a defense attorney who I knew and was friends with, from years gone by, and he was about to close to a jury early in the day. I said, hey, Brian, can I buy you lunch? He said, don't wait, it might take me a while to confuse the issue.

Apparently worried that this did not clearly enough convey his contempt for the criminal defense bar, the prosecutor continued:

At this moment, I'm reminded of a discussion I had outside of a courtroom one time, where I was trying to persuade a number of people, and I was interrupted by my opponent, my adversary in the argument. And eventually, after his second or third time, he said, hey, shut up, Joe you're making sense.

Somewhere a nightclub in Vegas is softly weeping.

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 "Standing Up for Criminal Defense Lawyers" »

July 10, 2009

After Melendez-Diaz, it's cross-examination for everyone!

At the end of June, the Supreme Court decided a case that will fundamentally change much about criminal procedure. The case is Melendez-Diaz v. Massachusetts, and the Court held that folks charged with a crime have the right to cross-examine the lab technicians who submit reports against criminal defendants.

This case will make the next few years of being a criminal defense lawyer very interesting.

This case says, in essence, that Crawford v. Washington, means what it says. If the government is going to introduce evidence against you at trial, it has to make sure that every single witness who is going to provide evidence against you testifies and is available to be cross-examined.

The impact of this decision on drug cases and DUI cases will be almost immediate - it will be harder for the government to convict because they will have to call more witnesses to the stand. And those witnesses will be subject to cross examination. Moreover, it will open up new lines of attack by defense lawyers on government witnesses.

Less clear, though, is how this will affect other prosecutions. There is language in the opinion that says that when a clerk of court submits an affidavit that he has looked in the court files and does not see any records of a specific kind, that he has to be available for cross-examination.

Assume that language sticks (it's arguably dicta now); it could mean that IRS certificates that a person never filed income tax returns will require an agent to testify. It could mean that in a felon in possession of a firearm case, the governor's office will have to send a representative to testify that the defendant was never pardoned. It could mean in an immigration case that an Immigration agent will have to testify as to the fact of a person's deportation, rather than proving that through documentary evidence.

The point is, we don't know exactly how this will play out; there are a lot of ways to use it and see how far the Court will let this go. Which makes it very exciting!

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, 2009

Does Ferris Bueller Need a Criminal Defense Lawyer?

There was a fun article on the NPR webpage yesterday about summer teen movies and how they are, basically, movies about a crime spree. I have to admit, my knee-jerk reaction to just about any teen movie is to mentally chronicle the crimes that are being depicted, going back to when I first saw Ferris Bueller's Day Off. Perhaps that reveals something deep about my chosen career path.

What can this man teach you about trial advocacy?

Regardless, there is, I think, an important lesson in this observation. When we watch these movies, such as Ferris Bueller's day off, the audience's reaction is not "Arrest the Scofflaw" but, rather, sympathy with the main character in the movie. Why is that? Why do we, as audience members, forgive criminal conduct when it's done in the name of teenage fun?

This is an important question for people accused of a crime because the only meaningful difference between a moviegoer and a juror is whether the person was compelled to learn about the subject of the movie or trial. So why does the audience root for the person committing a crime when watching these movies?

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 "Does Ferris Bueller Need a Criminal Defense Lawyer?" »

June 22, 2009

Senator Webb is a hero

Senator Jim Webb, who is perhaps the best thing to come out of Virginia since Thomas Jefferson, is on a campaign to reform our criminal justice system. He's currently trying to pass legislation that will consider how our criminal justice system is broken, and what we need to do to fix it. He wants to look at how we incarcerate folks with mental illness, and why our incarceration rates are the highest in the civilized world. And, he keeps pushing the proposal.

As Senator Webb puts it a quote from an article in the Washington Monthly:

Let's start with a premise that I don't think a lot of Americans are aware of. We have five percent of the world's population; we have 25 percent of the world's known prison population. There are only two possibilities here: either we have the most evil people on earth living in the United States; or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice.

Obviously, I'm a big fan of this effort. Senator Webb showed a lot of intellectual strength in the way he responded to President Bush's 2007 State of the Union address, and his campaign for Senate in 2006 was a lot of fun to watch. I'm very excited that he's willing to touch such an unpopular, yet deeply troubling, problem.

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 "Senator Webb is a hero" »

June 10, 2009

Going to prison for what a jury doesn't think you did

The jury is losing importance in our society. Fewer trials go to juries, fewer people want to serve on juries, and, yesterday, the D.C. Circuit said that in some cases when juries find a person not guilty of conduct he can still go to prison for it.

The Rodney Dangerfield of the Criminal Justice System?

Yesterday, the D.C. Circuit has reaffirmed it's prior holdings that a person who is acquitted of conduct at trial can be sentenced based on that very same conduct.

The court's ruling, in essence, is that if a person has four counts against him, and wins on all but one, the judge can sentence him as though he'd been found guilty on all four counts, provided the final sentence doesn't go above the statutory maximum sentence for that one count. Click here for coverage from the Legal Times Blog.

This rule is unfortunate for two reasons. First, it's bad for people accused of crimes and their lawyers. Second, it's bad for people who serve on juries.

A juror who is excited about civic service wants his or her decision to matter. The juror wants to contribute, and to be respected. What this ruling says is that the system knows better than the jurors who participate in it. Even if a juror gave up weeks of his or her life for a trial, a probation officer who wasn't even in the courtroom can argue that the jury was wrong, and a judge can ignore the jury's decision to jack up a person's sentence.

What does this mean for the average person accused of a crime in federal court?

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

Continue reading "Going to prison for what a jury doesn't think you did" »