Scientific Report Should Impact Federal Criminal Cases

February 11, 2009 by Carl Lietz

Later this month, the National Academy of Sciences (the nation's pre-eminent scientific research group) is scheduled to release a report that is sure to impact the manner in which criminal defense attorneys litigate some federal criminal cases. According to news stories, people who have seen the report "say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting."

Among other things, the report concludes that forensic analysts are often poorly trained technicians who exaggerate the accuracy of their methods in court. In addition, the current draft of the report states that the forensic science field suffered from a reliance on outmoded and untested theories by analysts who often have no background in science, statistics or other empirical disciplines. The report also "concludes that Congress should create a federal agency to guarantee the independence of the field, which has been dominated by law enforcement agencies, say forensic professionals, scholars and scientists who have seen review copies of the study."

Criminal defense attorneys that practice in both federal and state court routinely encounter forensic science issues. For this reason, our firm will continue to follow this story as it develops, and we are anxious to see the final report. Indeed, according to an individual who has reviewed the report: “I’m sure that every defense attorney in the country is waiting for this report to come out. There are going to be challenges to fingerprints and firearms evidence and the general lack of empirical grounding. It’s going to be big.” The full New York Times story discussing the draft report can be found here.

Federal Bureau of Investigation Raids Georgia Peanut Plant

February 10, 2009 by Carl Lietz

In what ultimately may become a federal criminal case here in Georgia, the BBC is reporting that earlier today, the Federal Bureau of Investigation executed search warrants at the Peanut Corporation of America's plant in Blakely, Georgia, as well as its headquarters in Lynchburg, Virginia. In addition to the federal criminal investigation that was launched last month, the FDA recently announced that the Company was "not compliant with Current Good Manufacturing Practices required by the FDA". And more recently, the FDA issued a statement which claimed that the Peanut Corporation of America "knowingly sold contaminated nuts."

This appears to be a wide-ranging investigation, with potential federal criminal implications here in Georgia, Virginia, Texas, and possibly other locations as well. To date, more than 1500 food products containing Peanut Corporation of America have been recalled, and a total of 575 people have have fallen ill with the outbreak strain of salmonella typhimurium since September 2008.

In addition to these federal criminal problems, the company is also facing civil lawsuits filed by personal injury lawyers on behalf of those that have fallen ill. The full BBC story concerning this ongoing federal criminal investigation can be found here.

Farias-Gonzalez: Another Atlanta Federal Criminal Case We Hope Gets Reversed by the Supreme Court

February 10, 2009 by Kish & Lietz

Last Tuesday, the Eleventh Circuit Court of Appeals issued its opinion in the Farias-Gonzalez case, which originated in a metro-Atlanta area of DeKalb County, Georgia. Judge Cox wrote for the Court, which held that identity-related evidence is not suppressible when offered in a criminal prosecution only to prove who the defendant is. The opinion is available here.

In 2006, Mr. Farias-Gonzalez was working on his car in DeKalb County, Georgia when a couple of federal immigration agents saw his tattoos and suspected he might be in a gang. After Mr. Farias-Gonzalez told them that he was not affiliated with any gangs, one of the agents lifted his sleeve to get a better look at his tattoos, then asked him for ID. He gave them three forms of identification identifying himself as Norberto Gonzalez. They took his picture and then ran a check on Norberto Gonzalez, finding no records associated with that name and the birth date on the ID. Concluding he may be in the country illegally, they fingerprinted him on a portable electronic machine. That machine identified him as Jose Farias-Gonzalez, who had previously been deported from the United States.

The District Court found, and on appeal the Eleventh Circuit assumed for the sake of argument, that the agents committed an unconstitutional search and seizure when lifting Mr. Farias-Gonzalez’s shirt sleeve. In the usual case, all evidence found as a result of an unconstitutional search would be excluded from use at trial. In this case, however, where the evidence was offered only to prove who the defendant was, the Court determined that the social costs of excluding the evidence were too great.

The exclusionary rule is one of the most important rules in criminal law. It is a legal technicality that protects all of us, guilty and innocent, from federal and state police misconduct. The rule prevents prosecutors from using evidence that is found in violation of the defendant’s constitutional rights. Because the rule makes the cost of a constitutional violation so high, it deters police from ignoring the rights that we fight so hard to protect.

The exclusionary rule applies only where its deterrence benefits outweigh its social costs. In the Farias-Gonzalez case, the Court weighed the societal costs and deterrence benefits of applying the exclusionary rule to Mr. Farias-Gonzalez’s photographs and fingerprints. The Court found that the deterrence benefits in this case were minimal because identity evidence is freely obtainable and the prosecution could re-indict as soon as the charges are dropped.

The Court noted the argument that, without the deterrence effect of the exclusionary rule, immigrants would be subject to rampant violations, but the Court rejected that argument hastily, saying that civil lawsuits will provide sufficient deterrence for constitutional violations. We disagree. Sovereign immunity is a significant bar against those civil suits. In addition, many immigrants do not have the means to bring those lawsuits, let alone the knowledge that any rights were violated. Deported defendants face still more considerable barriers.

Furthermore, although the deterrence benefits in this particular case were minimal, the exclusionary rule could prevent much more substantial violations than the lifting of a sleeve. Although police may freely obtain fingerprints from persons they meet on the street, police are now less deterred from unconstitutionally stopping vehicles with no probable cause or reasonable suspicion of criminal activity, simply to obtain the fingerprints of the occupants. They are less deterred from unconstitutionally entering homes without consent in hopes of fingerprinting illegal immigrants. They may find illegal immigrants that way, but they also may find legal immigrants and American citizens who have done no wrong.

Because police are now less deterred from violating your rights and mine, we hope that the United States Supreme Court takes this case and reverses it. The deterrence benefits of the exclusionary rule, even for only identity-related evidence, are far too important and our constitutional rights are far too valuable to sacrifice for the sake of finding a few more illegal immigrants.

Federal Court of Appeals in Atlanta, Georgia Overrules 1996 Brown Decision Regarding Criminal Fraud Statute

February 3, 2009 by Kish & Lietz

As you may remember, we have been closely following United States v. Svete, which involves the federal criminal mail fraud statute, in the Eleventh Circuit Court of Appeals in here Atlanta, Georgia. In this post back in April 2008, Paul Kish explained the facts of the case and the original Eleventh Circuit’s decision’s potential implications for criminal defendants. In early July, Carl Lietz reported in this post that the Court had vacated its opinion in Svete and decided to re-hear the case before the entire Court. He later reported in this post that the Court had identified the issues on which it would focus. In September we again kept you updated with this post by linking to the briefs that had been submitted to the court by the defendants and the National Association of Criminal Defense Lawyers.

This Monday, the Eleventh Circuit Court of Appeals finally filed their en banc opinion in this case. Unfortunately for criminal defendants, the Court overruled its very sensible opinion in United States v. Brown and broadened its definition of mail fraud, and by extension, probably the other types of federal fraud, as well. We hope that this is not the final installment in this case, as we believe that the Court violated the contemporary understanding doctrine in this case.

Elementary social studies classes teach about one of the most important aspects of our government: the separation of powers between the three branches of government. This separation of powers provides checks and balances so no single branch becomes too powerful. This system, established by the framers of the Constitution, is the basic foundation of our democracy.

The contemporary understanding doctrine helps maintain the separation of powers by preventing judges from usurping Congress’s legislative role. It mandates that judges interpret laws by taking their ordinary meaning at the time Congress enacted them, rather than giving laws a modern interpretation. The idea is that Congress is the branch of government that should update laws, not judges. Judges should not be lawmakers. Our elected representatives in Congress are the lawmakers.

In this case, the Eleventh Circuit used modern sources to update (and expand) its prior interpretation of the very old mail fraud statute. By disregarding the definition of fraud as it was intended at the time the statute was made law, the Court has legislated from the bench. This decision violates the fundamental principles of democracy.

Chief Judge Edmondson, who wrote the opinion in Brown, wrote a concurring opinion in Svete that stressed the necessity of capturing the historical meaning of the statute as Congress enacted it. He concurred in the result because he believed the error was harmless due to the complexity of the scheme in this case, but his analysis of the law was faultless. The historical meaning of fraud, combined with the rule of lenity, "requires the government to show that the pertinent scheme or misrepresentation was capable of inducing reliance on the part of a reasonable person exercising ordinary prudence for the protection of his own interests." We hope that the United States Supreme Court will decide to hear this case on appeal and agrees with Chief Judge Edmondson.