Articles Posted in Criminal Justice System

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The First Circuit rarely reverses, particularly in criminal cases.  You can read First Circuit opinions for months without coming across a defense-friendly opinion.  And a federal grant of a 2254 habeas petition by any court is a unicorn, in and of itself. See, e.g., Nancy J. King, Non-capital Habeas Cases after Appellate Review: An Empirical Analysis, 24 Fed. Sent. Rptr. 308, 310 (2012) (observing that, after both district and circuit court review, habeas relief was granted in only .8 percent of noncapital habeas cases).  That’s what makes the First Circuit’s decision in Rivera v. Thompson, 879 F.3d 7 (1st Cir. 2018) such a welcome surprise.

The facts: Rivera was in a fight with Williams and it was not going well.  Williams was much bigger than Rivera and the fight quickly became lopsided.  When fellow partygoers realized Williams was in full control and showing no signs of relenting, a group went outside to break up the fight.  Soon after, Williams keeled over on top of Rivera, and one witness said Williams remarked as he fell, “I think he [Rivera] stabbed me.”  But it happened fast and no one was willing or able to identify who stabbed Williams.  Rivera ran and a police officer saw him and ordered him to stop, but Rivera kept going.  When the officer drew his gun and told Rivera to get down, Rivera complied.  With Rivera still on the ground and the officer’s gun drawn, the officer asked Rivera a few questions, but did not issue Miranda warnings.  Rivera responded with some indirect, but inculpatory answers.  Backup arrived soon after, Rivera refused to talk further, and he was brought to the police station.

After a trial, Rivera was found guilty and sentenced to 9-10 years and 5 years of supervised release.  While his appeal was pending, he filed a motion for new trial, arguing his trial attorney was ineffective for failing to move for suppression of his inculpatory statements to the police officer.  The Massachusetts trial court denied the motion for new trial without comment or a hearing.  Rivera pressed his ineffective assistance argument on appeal.  The appellate court rejected it, stating that “it was not ineffective assistance for counsel not to move to suppress the defendant’s initial statements to the police where the questions did not constitute interrogation for purposes of Miranda warnings.” Id. at 11.  The Massachusetts Supreme Judicial Court denied review, and Rivera was off to federal habeas land.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

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the-money-trap-621161-m.jpgAs I’ve been writing about a lot over on Above the Law, one thing that is really not good about the federal criminal system is that it is extremely hard to attack government conduct.

This isn’t to say that all prosecutors or cops are bad. But they have massive amounts of unchecked power. And, my view at least, is that human nature is such that any given with power has at least a decent chance of abusing it. Prosecutors and cops aren’t saints – some of them are going to do what they ought not. And, when that happens, absent an egregious Brady violation and a really good judge, nothing much is likely to happen to the prosecutor.

Perhaps the hardest part of this is in entrapment law. The government should be in the business of catching crime, not creating crime to catch.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.