Articles Posted in Criminal Justice System

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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.

The En Banc Seventh Circuit and Fake Stash House Robberies

The Seventh Circuit late last year addressed – en banc – the standard for entrapment. This opinion may be the one good thing coming from fake stash house robbery prosecutions.

The facts of US v. Mayfield are familiar to anyone who knows about fake stash house robbery cases. Here’s how the Seventh Circuit summarizes it (it’s a long summary, but a really good one):

Mayfield was convicted of residential burglary in 1987 at age 18 and served time in jail for this crime. In 1994 he was convicted of several violent crimes stemming from an armed carjacking; he received a lengthy prison sentence. While in prison he earned a GED, an associate degree in general studies, and vocational certificates in commercial custodial services and cosmetology. He was released in 2005 and returned home to Waukegan, Illinois, where he participated in the Second Chance Program . . .

Although jobs for convicted felons were hard to come by, Mayfield managed to find sporadic work. After moving to Naperville, he found a temporary job in nearby Bolingbrook that allowed him to work a 40-hour workweek. He started this new job in late April or early May of 2009 and soon thereafter met Jeffrey Potts, a coworker with whom he had much in common. Potts was also a felon with convictions for drug trafficking, robbery, and gun possession. The two men commiserated about their financial straits, their difficulty finding permanent jobs, and their struggle to support their families. What Mayfield did not know was that his new friend was supplementing his income as a confidential informant for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).

. . .

In his first overture to Mayfield, Potts explained that he had returned to selling cocaine and invited Mayfield to join him in the drug trade. Mayfield rebuffed this offer. A few days later Potts learned that Mayfield had a pending gun-possession charge, so he tried another tack. He told Mayfield of a one-time opportunity “that was worth a lot of money.” His drug supplier was planning to “stickup” his wholesaler, a robbery that would net tens of thousands of dollars in cocaine. Potts invited Mayfield to participate in the robbery in return for a share of the profits. Mayfield rejected the invitation.

Potts persisted. Each day at work he tried to persuade Mayfield to join the conspiracy by appealing to his concerns about money. He urged Mayfield to think about the financial needs of his family, saying “I know you [are] tired of working for this chump change” and “I know you need this money,” among other similar lines of persuasion. Potts also flaunted his expensive Dodge Ram pickup truck, telling Mayfield that he bought it with $40,000 he had “earned” in another drug robbery. Mayfield continued to decline the offers.

On June 25, 2009, Mayfield’s car was damaged in an accident. He borrowed money from a family member to have the car towed but did not have enough to pay for the needed repairs. He missed three days of work before he found another way to get to his job . . . . When Potts asked him why he had missed work, Mayfield told him about the accident and explained his financial predicament. Potts unexpectedly gave him $180 in cash to pay for the car repairs.

Two days later Potts returned to the subject of the stashhouse robbery, again pressuring Mayfield to join the conspiracy. Mayfield equivocated but did not agree to anything. The following week Potts tried again. When Mayfield continued to resist, Potts gestured to a Gangster Disciples tattoo on Mayfield’s arm. The tattoo dated from Mayfield’s membership in the street gang before his carjacking conviction; he knew that failure to repay a debt risked harsh punishment from the gang. When Potts said he was still associated with the Gangster Disciples, Mayfield took it as a warning that he would be in danger if he did not quickly pay up. By the end of the day, Mayfield agreed to participate in the stash-house robbery conspiracy.

He was arrested pretty much as soon as anything got going with the robbery.

Most nonlawyers looking at this would, I think, say it’s entrapment. For that matter, I think most lawyers who don’t practice criminal law would think this is entrapment. One friend of mine, when I told him about these facts, asked why this wasn’t thrown out before trial because of how bad the government’s actions were.

If only more of my friends made the law.

There was a pretrial motion in Mr. Mayfield’s case, but it was not a motion to dismiss. Nor was it a defense motion for an entrapment jury instruction. No, the entrapment motion was filed by the government as a motion in limine to prevent the defense from talking about entrapment.

If you’re going to entrap someone, the last thing you want is them talking to the jury about how you entrapped someone.

The judge granted the government’s motion. Gotta love an independent judiciary.

The Seventh Circuit used this as an opportunity to discuss exactly what entrapment means.

Entrapment has two parts – lack of predisposition and government inducement. If someone can show both, then they get to present an entrapment defense to the jury and have the jury instructed on, basically, these two elements.

On Inducement

The Court held that:

We hold that inducement means more than mere government solicitation of the crime; the fact that government agents initiated contact with the defendant, suggested the crime, or furnished the ordinary opportunity to commit it is insufficient to show inducement.
Instead, inducement means government solicitation of the crime plus some other government conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the government’s efforts. The “other conduct” may be repeated attempts at persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward beyond that inherent in the customary execution of the crime, pleas based on need, sympathy, or friendship, or any other conduct by government agents that creates a risk that a person who otherwise would not commit the crime if left alone will do so in response to the government’s efforts.

On Predisposition

Predisposition has been the hard bit. Some Circuits have held some thing like that if you ever have a prior conviction for anything, you are always predisposed to commit any other crime. That’s right – Mark Wahlberg is predisposed to commit treason. (this is an overstatement, but a slight one)

Here’s what the Seventh Circuit said on predisposition:

a defendant is predisposed to commit the charged crime if he was ready and willing to do so and likely would have committed it without the government’s intervention, or actively wanted to but hadn’t yet found the means. The defendant’s predisposition is measured at the time the government first proposed the crime, but the nature and degree of the government’s inducement and the defendant’s responses to it are relevant to the determination of predisposition. A prior conviction for a similar offense is relevant but not conclusive evidence of predisposition; a defendant with a criminal record can be entrapped.

Concluding Procedural Remarks

One lovely final thing the Mayfield Court held – the government has the burden to defeat an entrapment defense beyond a reasonable doubt. It can do it by defeating either element, but it’s on the government.

But when does the government get this burden? When is an entrapment defense to be submitted to the jury?

We have held that to obtain a jury instruction and shift the burden of disproving entrapment to the government, the defendant must proffer evidence on both elements of the defense. See Plowman, 700 F.3d at 1057; Pillado, 656 F.3d at 763; Santiago-Godinez, 12 F.3d at 728. But this initial burden of production is not great. An entrapment instruction is warranted if the defendant proffers “some evidence” that the government induced him to commit the crime and he was not predisposed to commit it.

Mayfield is a great case. Here’s hoping it catches on in the other circuits.

It’s a far cry from keeping the defense from talking about entrapment at all.

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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.

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.

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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.

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.

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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.

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.

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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.

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.

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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.

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.

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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.

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.

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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.

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.

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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.

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.

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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.