Articles Posted in Juries

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Entrapment is making a comeback.

As a defense I mean. It started making a comeback as a government tactic shortly after September 11 before it migrated to the non-national security law enforcement world.

And the Seventh Circuit appears to be the new home of the entrapment defense as it rises, phoenix-like, on the shores of Lake Michigan. In United States v. Barta, the Seventh Circuit again affirmed the new strength of an entrapment defense in that part of the country.

If you remember one quote from this opinion, remember this one: “The point is that the government is supposed to catch criminals, not create them.”

the-venus-flytrap-4-1234316-m.jpgMr. Barta’s Business

James Barta founded a company called Sav-Rx. Sav-Rx was a “prescription benefit management business.” I believe that means that they help businesses that offer a prescription benefit to their employees with that.

Mr. Barta Meets with the FBI (Unwittingly)

In any event, Mr. Barta came to meet with a man named Castro. Or, referred to as Castro, since he was actually an undercover FBI agent. Castro was known as a guy who could deliver contracts with people at Los Angeles County. He delivered those contracts by bribing them.

When Mr. Barta first met with Castro he told him, right off the jump, “I’m not trying to sell you anything.” He said he was merely there to tell Castro what Sav-Rx does.

Castro told Mr. Barta that he could connect Sav-Rx with the Los Angeles County government because he knew a guy and he’d need to be paid. Barta left twelve minutes after the meeting started.

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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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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.

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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.

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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.”

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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.

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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.

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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.

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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.
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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.

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