Dr. King was no stranger to the criminal justice system.  He was jailed, prosecuted and reviled by many who were in charge of the criminal justice systems here in the South.  I strongly urge people to read (or re-read) his famed “Letter from a Birmingham Jail” a part of which is one if his most famous quotes: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

I’ve been licking  my wounds from a recent fight that I lost in Court.  It was (and is) the epitome of “injustice”.  It affects a single criminal defendant along with her family and friends (plus her legal team).  However, this single injustice is, just like Dr. King wrote, “a threat to justice everywhere”.  After several weeks of being down about this result I now have the fight back in my blood and bones.  We cannot tolerate injustice, large or small, and this MLK Day is a great way for all of us to remind ourselves that the fight for a better and more perfect society is never-ending.

Happy Birthday Dr. King, your words and memory have rejuvenated one of the foot soldiers in the cause for justice.  Now I need to get back to work.

The Brady case was from long ago, when I was a mere lad of 7 or so.  What happened was that Mr. Brady was charged with murder, along with another man named Boblit.  Brady acknowledged he was present but claimed he was not the one who killed the victim.  Brady’s lawyers asked for all of Boblit’s statements, but prosecutors held back one statement in which Boblit admitted he was the shooter.  The U.S. Supreme Court said that prosecutors violate the Constitution when, after a request from the defense, they hold back and do not turn over “exculpatory” information, meaning, they fail to tell defense lawyers about evidence that tends to show the accused person is either not guilty or guilty of a crime with lesser punishment.

In the current high-profile Varsity Blues case, prosecutors allege that wealthy parents paid a man named Singer to basically grease the skids and get their otherwise unqualified kids into high-end colleges and universities.  One way Singer supposedly did this was to help position the kids as athletes who fit into what the school needed for its teams, such as a coxswain on the rowing team and the like.

Some of the Defendants have pled guilty, while others adamantly maintain their innocence.  These non-pleading parents claim that Singer told them the money they gave to him was for legitimate purposes.  Lawyers for these parents say that prosecutors possess, but refuse to turn over, evidence confirming this defense.  As noted in one of the pleadings, “The Government appears to be concealing exculpatory evidence that helps show that both Defendants believed all of the payments they made would go to USC itself — for legitimate, university-approved purposes — or to other legitimate charitable causes. The Government’s failure to disclose this information is unacceptable, and this Court should put a stop to it,” the defense lawyers wrote in documents recently filed in Boston federal court.

I look forward to following this case.  I also remind everyone to stop jumping to conclusions when prosecutors trot out a case and make some high-profile arrests.  A recent movie shows the danger of this approach, just ask Richard Jewel’s mother.

The research is clear.  Trials are down, way down.  Punishments are going up.  But, punishments for the rare few who dare to challenge “the feds” in court are really going up, higher and higher.

While the research is clear, what is less certain is the impact that the Trial Penalty has upon that group of Defendants who likely are Not Guilty.  I say “likely” because only a jury gets to decide who is Guilty or not.  Although that decision is reserved for juries, all lawyers know that there are some cases where the guilt/innocence question is very close.  Experienced lawyers on both sides of the courtroom know quite well that some Defendants are likely not guilty, even if a jury comes to a different conclusion.

I know for a fact from my 37 years of doing this work that some likely Not Guilty defendants have pled guilty to crimes they did not commit, just so they would avoid the Trial Penalty.  There are obviously many reasons why an innocent person would plead guilty: they want to avoid prison, to avoid the cost of an expensive and lengthy trial and appeals process, and they want to end the suffering for their families.  Trust me, it does happen, a person will sometimes admit to something he or she did not do when they balance out their options and decide that the potential Trial Penalty is too big of a risk.

I saw this process earlier this year after a lengthy period during which I represented an extraordinarily honest and highly accomplished member of the Executive Branch of the U.S. Government (I am being purposely vague, so as to avoid any specific description of my real client).  I told my client we should have a trial, for he/she was simply “Not Guilty.”  My client decided he or she  had too much to risk, so the client agreed to the “deal” I negotiated, no jail time in return for a plea to a very minor offense.  When we got to court, even the Judge said the client likely was not guilty.  The client decided to stay with the deal, for his/her evaluation was that it was too big of a chance to leave the future in the hands of an unknown jury.

I have some other matters coming up soon in which I am fairly certain that my clients are Not Guilty.  I am willing to go to battle for these and all of my clients, but the Trial Penalty will always be a factor we need to take into account.  In my opinion, the people who created our otherwise wonderful Constitution would be very unhappy that a man or woman is unduly punished for asking for a trial, a right for which the founders of this nation went to war.

I started in 1982, and way back then, there were no mandatory penalties, no Sentencing Guidelines, and anyone who got a custodial sentence for a federal crime generally was eligible for early release, or “parole.”  Things began to change in the middle of the 1980’s. Drug crimes started getting more violent.  Then, in 1984 Congress created those Sentencing Guidelines, a mandatory and overly mechanical system for imposing harsher and harsher penalties. At the same time, they did away with parole, and our clients entered a system where they had to serve the entire sentence, other than a potential small reduction for “good behavior.”

Two years later came the absolutely horrible Anti-Drug Abuse Act of 1986.  In this despicable law, Congress began the regime of mandatory minimum sentences for drug crimes.  These mandatory 5, 10 and sometimes 20-year sentences applied based solely on the quantity of drugs that Congress basically picked out of thin air.  The penalty applied whether the person was a scared 18-year old first time offender or a seasoned criminal on his or third trip through the criminal justice system.  The dreaded “MM” applied to the drug kingpin who made millions while being in the business for many years, as well as the scared immigrant who one time for $500 foolishly let someone put a package in her luggage when she flew into the US.  From that point forward, an entire generation was subjected to these mandatory penalties.  Federal prison population boomed, which was great if you had a job designing, building or maintaining this system.  It was not so great for taxpayers or the families of first offenders caught up in this system.  Things got even worse with the 1988 Anti-Drug Abuse Act, and the horrible legislation signed by Bill Clinton, the 1994 Violent Crime Control and Law Enforcement Act.

Mandatory minimums also were inequitable for Judges and criminal defense lawyers.  Once a prosecutor decided to bring the charge containing a mandatory minimum penalty, the criminal defense lawyer was handcuffed, unless he somehow could win the case completely.  The same was true for the Judge.  Remember, under our system, these Judges are selected by the President of the United States and confirmed by the United States Senate, and after that arduous process, we trust them so much that they keep their jobs for the rest of their lives.  But, some young Assistant United States Attorney out to make a name for him or herself could name the penalty, even if the seasoned Judge thought that mandatory penalty was unfair.   I recall a story about a well-respected Judge when had been on the bench over 20 years fuming because, as the story was told to me, some “kid” prosecutor decided he knew better than the Judge what was was fair for a first-time offender.  A few federal judges even resigned in disgust.

Over time, taxpayers began to realize that they had been sold a bill of goods, and were stuck paying for overly lengthy incarceration.  Congress began creating little loopholes that somewhat alleviated the mandatory penalties.  The Supreme Court ruled that the dreaded Sentencing Guidelines were no longer mandatory and Judges are permitted to vary down to a lower sentence.  And, perhaps most importantly, prosecutors stopped feeling that their jobs were to bring cases in order to obtain absurdly long sentences that led to one of the world’s highest rates of incarceration.

So, my new case involves a potential mandatory penalty, but I also know that my client and I have a lot more room to maneuver than 25 years ago.  The “system” is no longer hell-bent on imposing the longest possible sentence.  It is far too early to tell if this is a case where we should fight or negotiate, but I am a somewhat relieved that our system is a bit better than it was previously.

Without guilty pleas, the criminal justice system would likely collapse.  That is one big reason why this case is important.  Mr. Class, foolishly representing himself, pled guilty to a federal crime of possessing “readily available” firearms on the property of the U.S. Capitol grounds.  Now, I happen to agree with a law that says no one should have a firearm on such property, but Rod thought he was within his rights.  Nevertheless, he pled guilty, got a “time served” sentence, which normally would have ended the situation.  But, as I mentioned above, Rod is an “interesting” person.  He wanted to continue his fight against this particular law up through the appellate courts.  He wanted to challenge whether it is a crime for a law-abiding citizen to have a constitutionally protected gun, on the property of his own Capitol, for gosh sakes!

Rod ran headlong into a problem we encounter when people call us after they or their family member have already entered a guilty plea.  For the most part, the plea “waives” or gives up all rights to challenge any aspect of the case. Furthermore, in federal court prosecutors require that a Defendant enter into plea agreements by which the person waives all of his or her appeal and post-conviction challenges (other than a few meaningless exceptions that are almost unheard of).

Here is where it got interesting.  The court appointed some very talented lawyers to help Rod.   These attorneys, looking to two Supreme Court rulings from the mid-1970’s, noted that there was no “express” waiver of Rod’s right to challenge the constitutionality of his conviction.  In other words, admitting to “factual guilt” does not give up the right to challenge whether the supposed “crime” can even be prosecuted under the Constitution. His lawyers argue that the challenges Rod wants to bring against the law for which he was prosecuted go to the very power of the State to haul him into court, regardless of whether he is factually guilty.

The prosecutors will likely argue that the criminal justice world will come to an end if people who enter guilty pleas can nevertheless traipse over to the court of appeals and come up with a panoply of constitutional claims, thus meaning that no case is ever finished.  They will also point to a specific rule that allows a Defendant to reserve a specific issue to go up on appeal even after a guilty plea (but the prosecutor and the Judge have to agree to this procedure, meaning that folks in Rod’s situation need to kind of play “mother may I” in order to vindicate their rights).

I like how this case is a perfect example of how some people turn situations upside down.  Several Justices on the Court are avid protectors of the Second Amendment, and likely are sympathetic to Rod’s quest to challenge the law under which he was prosecuted.  However, these same Justices rarely issue rulings that help criminal Defendants.  The government will likely make subtle arguments about how if the Court rules for Rod Class, the next time it won’t be some person who wants to advocate for gun rights, but could be some repeat criminal making a far less appetizing claim. Should be an interesting argument!

These cases came about because of statutes (which some people refer to as “laws”) that make it a crime to engage in extortion.  Generally, it is illegal to threaten another person and ask that person to pay you money in return for which you will take some action that benefits that other person.  However, (and this is the big exception) it is NOT illegal to make such a threat (or “demand”) if you have every right to make such a claim.  In other words, if someone damages your car, it is OK for you (or your lawyer) to send a “demand” to the person who wrecked your auto, seeking money, and threatening a lawsuit if they do not comply with the demand.  It is NOT OK to send a demand if the person never caused you any damage at all.

The recent case here in Atlanta arises out of a very complicated situation involving a prominent man and his former domestic employee. The employee and her lawyers claimed that the prominent man engaged in improper sexual conduct which they would expose unless the man agreed to pay a settlement.  It is no secret that certain people seem to have better access to the levers of power than others, and observers were not too surprised to discover that the District Attorney suddenly decided to bring extortion charges in State Court against the former employee and her lawyers for sending the demand letter. A judge recently threw these charges out, ruling that it is “over broad” to apply this extortion statute to a “demand” arising out of civil claims.

The case we won last year was in federal court in Savannah.  Our client sued his former lawyer, and believed that he had information showing that his former attorney had lied during a deposition.  The client asked for payment or he would release information about the lie and use the information in the ongoing civil case between the two men.  The lawyer called the feds, and they ultimately arrested our client, charging him with the federal crime of extortion.  We eventually convinced the U.S. Attorney to dismiss the charges, but not before our client had a lot of heartache and sleepless nights.

These are similar cases, but as always, there are differences.  For one, the recent state court case will likely be appealed to a higher court by the prosecutors.  On the other hand, in our case we were able to convince the prosecutors to simply drop the charges, for a variety of reasons.  Each case shows that criminal defense lawyers need to be aggressive and creative when fighting for their clients.

I am fascinated by how politics intersects with the criminal justice system.  Over the past 34 years I have represented people involved in politics who either were charged with or investigated for crimes, both federal crimes and state criminal accusations.  While my cases are obviously different from whatever challenges are facing attorneys for Hillary Clinton and others, there are also striking similarities.

One similarity between my cases and the Clinton email investigation is that they both involve federal prosecutors and agents.  For the most part, prosecutors working for the United States Department of Justice (or, as we call it, “DOJ”) are well-trained, highly ethical and extraordinarily hard-working federal servants.  They usually want to get the right result under the circumstances.  However, just as in my cases, the glare of publicity can affect even the best-tempered and ethical public servant.  In highly public matters, I have seen far too many prosecutors who are more interested in making a name for themselves by being “hard” on crime than in doing what justice requires.  Just look around at the number of people in politics who first made their names as federal prosecutors.

Another similarity is that while we occasionally run into a federal prosecutor who is more interested in his or her future than the justice of the current case, the same is not the situation when we turn to the federal agents who actually investigate the matter.  Federal agents are a strong community of like-minded investigators.  They are almost uniformly tight-lipped, and are universally unwilling to talk to the press without express permission.  They rarely tell tales outside of court and hardly ever gossip to reporters and the like.  I know this because sometimes it is many years after a case or investigation is closed before the federal agent I have known for decades even tells me a tidbit of background information about the case we both worked on years earlier.

A third way that the current Clinton squall is similar to our cases also arises from the publicity focused on such matters.  I do not know the lawyers who are advising any of the people involved in this investigation, but my guess is that all of them are having a difficult time advising their clients when everything the client says and done is observed by reporters. As I have discussed other times, media focus makes my job more difficult.  Some criminal defense lawyers never say anything, while far too many say far too much (to anyone who will listen apparently).  Cases like this seem to require input from a criminal defense attorney on what should be said, by whom, and when.  However, the criminal defense lawyer is tasked with making sure that his or her client does not get charged or convicted, and his or her reluctance in letting the client make comments runs smack into the client’s need to respond.

Again, I am interested in how the lawyers handle this difficult situation.

A decision issued yesterday by the United States Court of Appeals here in Atlanta shows how even good laws like the CVRA can sometimes lead to bad consequences. The case is Jane Doe #1 and Jane Doe #2 v. Roy Black, et al. You can access the decision here.

A man named Epstein apparently sexually abused two minor girls. Epstein hired Roy Black, a prominent criminal defense attorney in Miami. Epstein faced potential criminal charges in both the local Miami courts as well as in the federal court system. Recall, the under the CVRA, victims have lots of rights, one of which is to be notified about all developments in a case. Victims also own the right to have their opinions heard when prosecutors are considering resolving a case with an agreement of some sort.

The federal prosecutors told the victims that they were considering a case against Epstein. However, they ultimately decided to not prosecute Epstein in return for his plea of guilty in the local court system. Here’s the problem: although they properly informed the victims about the state court guilty plea, the feds failed to tell the victims there would not be a federal prosecution, thus potentially violating the victims’ rights to be heard as to the fairness of this resolution.

The victims eventually filed a law suit, but the important part of the case is that they wanted all correspondence and communications between Epstein’s lawyers and the federal prosecutors. Everybody knows that it is is very important to keep plea negotiations (and just about every other type of negotiation) secret. Lawyers and their clients are far less likely to put their cards on the table if they know that their communications later can be opened up to outsiders. However, that is exactly what happened in the decision issued yesterday. The Court of Appeals ruled that there is no privilege or other reason that prevents the victims from getting access to Epstein’s attorneys’ confidential communications with the federal prosecutors.

Again, I am mostly in favor of the greater rights we not afford to victims of crimes. This movement has helped regain respect for the criminal justice system. However, I fear that this ruling and others like it will make it far harder for criminal defense attorneys and prosecutors to do their jobs, knowing that somebody down the line one day can pry open an old file and try to use a seemingly private business communication for another purpose.

I have almost always represented individual people during my legal career. It simply fits better with my personality, in that I sort of like the David-versus-Goliath story where it’s me and my client versus the entire system of prosecutors, federal agents and judges. The only things I need to concern myself with are my client and whatever is best for him or her and their family. However, when a lawyer represents a company, or a movement promoting an ideology, the individual person’s interests can sometimes get pushed to the side.

Death penalty issues, like the story above, are a good example of this. Many of the finest lawyers in America regularly represent people who are either facing the death penalty or who are on one of the Nation’s “Death Rows.” My partner Carl and I have been asked in the past by Judges to represent people facing the death penalty, and we have not shirked our duty, zealously pushing the best interests of our client. We only are concerned with the individual human being who we represent, and do not care whether or how that person’s case fits in the overall scheme of the movement that opposes the death penalty. On the other hand, many “movement” death penalty lawyers are subtly pushed one way or another depending on the most recent strategy used for fighting capital punishment nationwide. This became even more clear to me when I was asked to represent an executive with one of the companies that had previously provided drugs that were later used in executions. Some of my friends who regularly do death penalty cases suggested I should not do a very good job for this executive, in that my work might help in the execution of a person on death row. I politely rejected these subtle attempts to get me to not do my job for the person I was representing in that case.

The same is true when it comes to lawyers who represent companies versus attorneys who only represent individuals. We have seen in the past where highly competent lawyers who do a great job representing the company are then asked to take on a case against one of the individual executives of that company. The lawyer always tries to do his or her best, but again the subtle differences between representing people versus corporations often rises to the surface. When we represent one person, it is only that person and their family we need to keep in mind. Company attorneys, however, often need to remember that what is good for the individual client might be bad for the corporation, which could result in less work for that lawyer in the future if the company goes out of business.

I am not saying that lawyers who represent companies or movements cannot do a good job when they take on an individual’s case. They can and often do. However, prospective clients should always ask any lawyer they are interviewing whether the attorney regularly represents people as opposed to companies or movements. My experience teaches that most clients prefer the former over the latter when their freedom is on the line.

Delay was known as a hard-charging Republican advocate, whose nickname of “the Hammer” demonstrated his supposedly ruthless tactics. In 2002, Delay wanted to have the Texas Legislature turn solidly Republican, which it did. To accomplish, he asked for a series of corporate political contributions to a campaign committee. Afterwards, that solidly Republican legislature allegedly jiggered the voting districts so that the Texas federal delegation was far more likely to elect Republicans to the U.S. Congress. All well and good, hard nosed politics.

Things got overtly political when the Democratic District Attorney of Travis County brought a series of criminal cases arising out of the method used to try and get lots of Republicans elected to Texas state legislative positions in the 2002 elections. In an initial set of indictments, the State accused the defendants of “participating in a scheme to channel unlawful corporate political contributions to candidates for the Texas House of Representatives in 2002.” The Election Code-based conspiracy charges were thrown out, so the prosecutor re-indicted Delay on two counts, criminal conspiracy to commit money laundering of funds of $100,000 or more and money laundering of funds of $100,000 or more. The predicate offense for the State’s money laundering charge alleged the “offense of knowingly making a political contribution in violation of Subchapter D of Chapter 253 of the Election Code.”

On appeal, the appellate court laboriously plowed through both the Election Code and the evidence at trial. The court demonstrated that first, there simply was no violation of the Election Code. Instead, it seemed that the corporate contributors simply wanted political access, something that is apparently legal in Texas. Second, the Texas Court of Appeals showed that there cannot be illegal “money laundering” unless the money was the result of some criminal act. Because there was nothing illegal when the corporate contributors gave the money over, the subsequent movement of those funds could not be money laundering.

There are plenty of crimes out there, yet aggressive and ambitious prosecutors often fall into the temptation of going after a high profile Defendant who is involved in politics. To me, the real crime is that the kind of contributions involved in this case are apparently legal under Texas law, but we seem to permit that in our country.

Like defendants in many famous Supreme Court cases, John Brady was no saint. On June 27, 1958, he and Donald Boblit robbed and killed a man named William Brooks. Boblit quickly confessed that he had strangled Brooks to death, and that he acted alone. However, the prosecutors handling the case against John Brady never informed the defense attorneys about this confession and never turned over the transcript of Boblit’s remarks.

Both Boblit and Brady were convicted and sentenced to death. Only after the trial did Brady’s lawyers discover that prosecutors had a confession from Boblit that helped exonerate Brady. The attorneys found out by reading a transcript of Boblit’s trial. So, Brady’s attorneys sensibly asked for a new trial. The trial judge refused. Next, the Maryland Court of Appeals concluded that the suppression of the confession violated Brady’s Due Process rights, but said he was only entitled to a new sentencing trial. Because his lawyers believed the whole trial had been tainted, they asked the United States Supreme Court to look into the matter.

The justices used Brady’s case to memorialize a constitutional rule that imposed on prosecutors the affirmative duty to share with criminal defendants evidence that by its very definition would undermine the prosecution’s case. The motives behind the suppression of the evidence didn’t matter. However, in later years the Supreme Court greatly reduced the impact of this landmark ruling, by holding that an unfair prosecutor who hides exculpatory evidence will not cause a new trial unless that hidden evidence was “material”. Evidence is material, only when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” This was a big victory for prosecutors and an even bigger defeat for aggrieved defendants.

As a young lawyer, I was kind of shocked about how the Brady rule is played out in a real case. I would always ask the Judge to make the prosecutor turn over the “Brady materials.” The prosecutor would routinely roll his or her eyes, and intone that the government was well aware of its obligations, and that was it. The judge never made any inquiries, and I was left with the distinct impression that the Brady rule is merely an example of the fox guarding the henhouse. Why would a prosecutor ever turn over evidence that helps the Defendant if the prosecutor truly believes the Defendant is guilty? Furthermore, even if a prosecutor is not trying to hide anything, it seems ridiculous to ask that same prosecutor to figure out if a piece of evidence is potentially exculpatory, in that the prosecutor does not really know where the defense is going. Federal court is the worst of all, in that the discovery rules do not make a prosecutor turn over very much at all, and so no one really knows if there is some truly good defense evidence lurking in the files of one of the investigators.

Not only does the Brady rule seem to fall flat in real cases, it seems that when a prosecutor is caught withholding evidence, very little is done. Prosecutors who violate the obligation to disclose favorable evidence are rarely sanctioned by courts, and almost never by disciplinary bodies. I remember one case where I caught the prosecutor red-handed. Fortunately, my client was acquitted. When I complained about the prosecutor’s violation, his boss shrugged, saying “Why does it matter, you walked your man didn’t you?” That attitude seems to still prevail 50 years after the Brady decision was issued. Things might be better if all prosecutors would simply use an “open file” discovery system, but for some reason, they often are reluctant to do so. That is truly bizarre, since when there is a fight over money, each side has to make full disclosure to the other, but when freedom (or even the death sentence) is at issue, one side gets to hide the ball and only has to turn over exculpatory evidence when it is “material.” Have we really improved since 1963?

One of the biggest rule changes concerns criminal cases involving immigration crimes or clients who are not U.S. Citizens Recall that under the landmark case of Padilla v. Kentucky, it is ineffective assistance of counsel if the lawyer does not tell his alien client that a guilty plea can have ramifications on the defendant’s immigration status. Rule 11 of the Federal Rules of Criminal Procedure discusses what happens when anybody pleads guilty to a crime in federal court. The Supreme Court approved a change which requires the judge, before accepting a guilty plea, to ensure that the defendant understands “that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” The rule change seems to provide protection to both defendants (who will be told about what might happen) and prosecutors (who can argue on appeal or habeas that any failure by defense counsel to provide the advice required by Padilla was harmless because the court gave the defendant the required notice).

Another significant amendment concerns changes to the Federal Rules of Evidence. These are the rules that control what can, and cannot, be introduced by one side or the other during a federal trial. Many readers will be aware of a series of cases over the past decade in which Justice Scalia has breathed new life into the Sixth Amendment’s Confrontation Clause. These cases held that criminal defendants have the right to see, confront and cross-examine any witness whose statement is used for an evidentiary purpose by the prosecution. The Supreme Court has approved changes to Rule 803 of the Rules of Evidence to allow, in a criminal case, admission of a government official’s certification of the absence of a public record if the prosecution gives the defendant notice of its intent to introduce the document fourteen days before trial and the defendant does not object within seven days before the trial. This revision seems to be a reaction to the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, which said that certain kinds of documentary evidence (such as a crime lab report indicating that a substance is cocaine) violates a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment if admitted into evidence without the document’s author being put on the stand to testify as to its contents. The new version of Rule 803 contains a procedure under which a defendant will waive that constitutional right – at least with respect to a certification testifying to the absence of a public record – if he does not object to its admission after receiving notice prior to trial.

Again, practitioners need to keep up with these changes to protect their client’s rights. We will continue to look for changes and updates so we can do our best for our clients.

Judge Barkett first notes her amazement that the 11th Circuit wouldn’t join the majority of courts that allow such testimony. She sets out that all other federal courts of appeal, and 42 out of 50 states permit such testimony.

The many problems with eyewitness identification testimony, and recent social science research in this area, both call out for a new view, according to Judge Barkett. In the 30 years since the 11th Circuit outlawed such expert testimony, there have been over 2000 studies concerning the unreliability of eyewitness identification testimony. Judge Barkett quoted from a decision of another federal appellate court demonstrating that “the conclusions of the psychological studies are largely counter-intuitive, and serve to ‘explode common myths about an individual’s capacity for perception.'”

The many studies in this area reveal truly disturbing aspects of identification testimony. First, it appears that eyewitness misidentification is the leading cause of false convictions in this country. Studies in both experiments and real-world settings show that eyewitnesses get it wrong about 1/4 to 1/2 of the time. Second, there is a very high consensus among researchers in this arena that the procedures used by the police can improperly impact what an eyewitness “remembers”. A major study conducted by the New Jersey Supreme Court essentially said that the police always influence witnesses during lineup and other procedures during which a potential suspect is displayed to the eyewitness. However, when the policeman conducting the process does not know if the suspect is even in the lineup (which is called a “blind” method), the rate of accuracy doubles! As Judge Barkett notes, jurors need to hear from experts who know about this research because the average person is unaware that “even the best-intentioned non-blind administrator can act in a way that inadvertently sways an eyewitness.”

Judge Barkett also outlined the process of “confirmatory feedback” discussed in the many studies of eyewitness identification testimony. In this processs, the witness first makes a tentative identification, the suspect is arrested, and the witness sees the suspect at the defense table or in pictures. By the time of trial the eyewitness’s identification is “confirmed” in his or her mind, not because he or she is more certain, but because the more they see the defendant in court the more likely they are to believe that the defendant is the person who committed the crime.

The literature in this area also describes another counter-intuitive aspect of eyewitness identification: the higher the stress in a situation, the less likely a person will make an accurate identification. Most people tend to believe that a victim of a crime will “never forget the face” of the perpetrator. Studies show just the opposite, that in such high-stress situations victims rarely focus on or accurately remember the facial features of the person who is committing the crime.

Judge Barkett concludes her dissent by explaining that simply cross-examining an eyewitness is insufficient. “In short, scientific research reveals that, in particular circumstances, an eyewitness’s testimony suffers from intrinsic flaws that are unknown to most jurors and undetectable through the typical modes of examining lay witnesses”.

It is sad that our local appellate court continues to stick its head in the sand in this area. We hope that lawyers and judges continue to press ahead in helping jurors understand some of the counter-intuitive aspects of eyewitness identifications.

Law enforcement officials in the District of Columbia suspected Antoine Jones of being a large-scale drug trafficker. Among other investigative tools, they wanted to put a Global-Positioning-System (GPS) monitor on a vehicle that Jones regularly drove. The officers got a warrant, but messed up and did not put the monitor on the vehicle within the 10-day window authorized by the judge who issued the warrant. As a result, the monitor was put on the vehicle without the benefit of a valid warrant. The GPS monitor tracked Jones’ travels for about a month, resulting in evidence that tied him to a large drug stash-house, among other information. This evidence was then used to convict Jones.

All nine justices on the Supreme Court agreed that this was an illegal search under the Fourth Amendment. Although they all reached the same result, there is a big difference between the justices as to the underlying rationale for the decision.

Justice Scalia wrote the majority opinion for himself and four other justices. Scalia basically resurrected the property-based view of the Fourth Amendment, noting that the officers engaged in an old-fashioned common law trespass when they placed the GPS monitor on the vehicle. Such a trespass is always a “search” when accompanied by an intention to obtain information.

Justice Alioto wrote a concurrence for he and three other justices. Alito wanted to retain the “reasonable expectation of privacy” ruling from the seminal Katz v. United States decision. Under Alito’s theory, suppression decisions would turn not on who owned property but on whether society currently recognizes that a person has an expectation that certain information would not be exposed to law enforcement. Alito almost always tries to help the prosecution, so his theory would often result in a ruling that no “search” occurred.

Justice Sotomayor sided with Justice Scalia’s majority opinion, but her concurrence may be the most prescient part of the whole case. Proving that she is beginning to be the intellectual force on the Court that many predicted, Justice Sotomayor noted that both views may become more important in light of the rapid advance of technology in our modern day world. “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail abouther familial, political, professional, religious, and sexual associations.” She further notes that because it is so cheap to do, the police will resort to such secret electronic monitoring more and more. She ponders whether most people really expect that their government might track their daily movements.

Justice Sotomayor also ponders whether we should re-think the line of cases holding that people abandon their expectation of privacy when they turn property over to a third party. She notes that we expose vast quantities of private information when communicating with a bank, or even using our internet service provider to surf for a new restaurant. She doubts whether most Americans would believe they surrendered their privacy rights in this situation just because they agreed to the ISP’s terms of service.

This is a fascinating decision with roots in the past but application for the present and future. We are glad to see the Supreme Court issue a decision that recognizes the importance of personal property rights, privacy, and the need to keep government in check.

In this post in August, we summarized the impact of the Fair Sentencing Act of 2010, which reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. The Act also provides for higher sentencing guidelines for all drugs in some cases. This amendment brings about the changes made by the Act.

Specifically, the emergency amendment makes the following changes to the Sentencing Guidelines to implement the Fair Sentencing Act:

* The base offense levels for crack cocaine are set in the Drug Quantity Table so that the statutory minimum penalties correspond to levels 26 and 32. This change implements the Act’s application of the five-year mandatory minimum sentence to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams, and the ten-year mandatory minimum sentence to cases involving at least 280 grams of crack cocaine, compared to the prior 50 grams.

* The amendment establishes a marijuana equivalency for crack cocaine under which 1 gram of crack cocaine is equivalent to 3,571 grams of marijuana and, in the commentary to §2D1.1, deletes the special rules in Note 10(D) for cases involving crack cocaine and one or more other controlled substances.

* §2D1.1 is amended to add a sentence at the end of subsection (a)(5), which is often referred to as the “mitigating role cap”. The new provision provides that if the offense level otherwise resulting from subsection (a)(5) is greater than level 32, and the defendant receives the 4-level “minimal participant” reduction in subsection (a) of §3B1.2, the base offense level will be decreased to level 32. Because a 4-level reduction is uncommon, this new provision will have limited impact.

* §2D1.1 is amended to create new specific offense characteristics providing an enhancement of 2 levels if the defendant: o Used violence, made a credible threat to use violence,or directed the use of violence; o Bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the offense; o Maintained a premises for the purpose of manufacturing or distributing a controlled substance; or o Receives an aggravating role adjustment and the offense involved any “super-aggravating” factors.

* §2D1.1 is also amended to create a new specific offense characteristic providing a 2-level downward adjustment if the defendant receives the 4-level “minimal participant” reduction and the offense involved three specified factors: o Motivation by an intimate or familial relationship or by threats or fear to commit the offense when the defendant was otherwise unlikely to commit such an offense; o No monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances; and o Minimal knowledge of the scope and structure of the enterprise.

A reader-friendly guide to the temporary amendment is available here.

The concurring opinion by Chief Judge Kozinski eloquently describes the reality of many white-collar criminal prosecutions that we see in our federal defense practice. All too often, federal prosecutors go after defendants in prosecutions that would more appropriately be located on the civil docket.

The full opinion in Goyal is available here, but the Chief Judge’s concurrence is worth reprinting in full:

This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant’s personal and professional life. The defendant’s former employer also paid a price, footing a multimillion dollar bill for the defense. And, in the end, the government couldn’t prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. See Arthur Andersen LLP v. United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir. 2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. § 1001 creates risk of prosecutorial abuse).

This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction-including disenfranchisement, incarceration and even deportation-but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) (“[C]riminal punishment usually represents the moral condemnation of the community . . . .”); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir. 1970) (“[T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community . . . .”). When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted.

Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn’t commit. But not everyone is so lucky. The government shouldn’t have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction. Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal. And, perhaps, that the government will be more cautious in the future.

This amendment responds to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. The Act created a new offense at 18 U.S.C. § 249 for injuring any person because of actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. That offense is now referred to §2H1.1 (Offenses Involving Individual Rights). It also broadened the definition of “hate crime” to include crimes motivated by actual or perceived “gender identity.” §3A1.1 (Hate Crime Motivation or Vulnerable Victim) gained an application note to account for the expanded definition.

The Act created a second new offense at 18 U.S.C. § 1389, prohibiting attacks on members of the military, which is now referred to §§2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Theft, Property Destruction, and Fraud).

This is the only amendment this year to expand on the sentencing guidelines. Unlike years past, most of the amendments this year reduce the severity of the sentencing guidelines and applicable sentencing ranges. Professor Doug Berman addressed the symbolic importance of this change in direction in this post at the Sentencing Law and Policy Blog. We hope that the future holds a continued focus on revising the guidelines for fairness.

The third amendment to the Sentencing Guidelines addresses judges’ discretion to grant a downward departure for cultural assimilation by immigrant defendants convicted of illegal reentry. The 11th Circuit upheld departures on this basis in U.S. v. Sanchez-Valencia in 1998. Some other circuits have declined to rule on this issue, so the amendment was passed in order to promote uniformity in sentencing.

The amendment adds an application note to § 2L1.2 providing that a downward departure may be appropriate on the basis of cultural assimilation if the defendant:

• Resided continuously in the United States from childhood;

• Illegally re-entered or stayed in the U.S. because of cultural ties from that childhood; and

• A departure is not likely to increase the risk to the public from further crimes of the defendant.

The sentencing court is directed to consider the following factors:

(1) the age in childhood at which the defendant began residing continuously in the United States,

(2) whether and for how long the defendant attended school in the United States,

(3) the duration of the defendant’s continued residence in the United States,

(4) the duration of the defendant’s presence outside the United States,

(5) the nature and extent of the defendant’s familial and cultural ties inside the United States, and the nature and extent of such ties outside the United States,

(6) the seriousness of the defendant’s criminal history, and

(7) whether the defendant engaged in additional criminal activity after illegally reentering the United States.”

The Sentencing Guidelines now recognize that certain characteristics of the defendant may be relevant in calculating sentencing ranges, including age, mental and emotional conditions, physical condition, and military service. This amendment was in response to sentencing judges increasingly using variances, rather than relying on departure provisions.

The amendment revises the introductory commentary to Chapter Five, Part H to explain that its purpose is to provide a framework for addressing specific offender characteristics consistently to avoid unwarranted sentencing disparities. It then amends policy statements §§ 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction) to provide that age; mental and emotional conditions; and physical condition or appearance, including physique, “may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” It also amends § 5H1.11 (Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works) to state that military service “may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines”.

The new authorization to consider age in some cases will help white-collar defendants, who often are older than those convicted of other federal crimes. Judges may consider youth as well, which will be most helpful in drug cases. While the amendments direct judges not to give these specific offender characteristics excessive weight, we are pleased that the Commission has finally recognized that they are relevant.

As we noted in this post in April, the U.S. Sentencing Commission has amended the Guidelines to expand the availability of alternatives to incarceration, such as residential treatment programs, home detention, and intermittent confinement. This amendment expands Zones B and C of the Sentencing Table by one level each. It also amends Application Note 6 of § 5C1.1 (Imposition of a Term of Imprisonment) to say that a departure from the options allowed for Zone C to those of Zone B for a specific treatment purpose should be considered only when the court finds that the defendant is an addict, alcoholic, or mentally ill and his or her criminality is related to the treatment problem to be addressed.

Under Zone B, the minimum term may be satisfied by intermittent confinement, community confinement, or home detention instead of imprisonment. Under Zone C, at least half of the sentence must be served in prison. Defendants falling under Zone D must serve their entire sentences in prison.

Zone B now contains all guideline ranges having a minimum between one and nine months and Zone C now contains all guideline ranges having a minimum of between ten and twelve months. In other words, with minimal criminal history, an offense level of 11 is now in Zone B and level 13 is now in Zone C.

The new language of § 5C1.1 Application Note 6 is:

There may be cases in which a departure from the sentencing options authorized for Zone C of the Sentencing Table (under which at least half the minimum term must be satisfied by imprisonment) to the sentencing options authorized for Zone B of the Sentencing Table (under which all or most of the minimum term may be satisfied by intermittent confinement, community confinement, or home detention instead of imprisonment) is appropriate to accomplish a specific treatment purpose. Such a departure should be considered only in cases where the court finds that (A) the defendant is an abuser of narcotics, other controlled substances, or alcohol, or suffers from a significant mental illness, and (B) the defendant’s criminality is related to the treatment problem to be addressed. In determining whether such a departure is appropriate, the court should consider, among other considerations, (1) the likelihood that completion of the treatment program will successfully address the treatment problem, thereby reducing the risk to the public from further crimes of the defendant, and (2) whether imposition of less imprisonment than required by Zone C will increase the risk to the public from further crimes of the defendant. Examples: The following examples both assume the applicable guideline range is 12-18 months and the court departs in accordance with this application note. Under Zone C rules, the defendant must be sentenced to at least six months imprisonment. (1) The defendant is a nonviolent drug offender in Criminal History Category I and probation is not prohibited by statute. The court departs downward to impose a sentence of probation, with twelve months of intermittent confinement, community confinement, or home detention and participation in a substance abuse treatment program as conditions of probation. (2) The defendant is convicted of a Class A or B felony, so probation is prohibited by statute (see § 5B1.1(b)). The court departs downward to impose a sentence of one month imprisonment, with eleven months in community confinement or home detention and participation in a substance abuse treatment program as conditions of supervised release.

This amendment would have applied to 6% of the federal defendants sentenced in 2009. While the impact of the amendment is limited to such a small percentage, it will have a huge impact on those defendants who are now eligible for alternatives to incarceration, as well as their families and even their community. Alternative sentencing allows employment, which helps the defendant to continue to support his or her family and pay back any restitution to victims. It also allows for treatment, which reduces recidivism rates.