Responding to a Grand Jury Subpoena Without a Lawyer: Always a Bad Idea

June 29, 2012 by Paul Kish

Here in Atlanta we have a good relationship with the federal prosecutors, and can generally work out some good arrangements when we represent a client who is served with a federal grand jury subpoena. As we explain elsewhere, it is always a good idea to have a lawyer help one through this dangerous process. Yesterday the Eleventh Circuit issued an opinion that demonstrates the dangers of going through this process without at least first consulting with an experienced federal criminal defense lawyer. The case is US v. Merrill.

Mr. Merrill was involved in a company that sold munitions to the Army. The munitions would then be shipped to Afghanistan. There is a federal statute and regulation saying that companies cannot provide any such munitions if the material was manufactured by a company in Communist China. Merrill and others had "old" munitions that had been made by a Chinese Communist manufacturer years before the prohibition went into effect. When they tested the waters, they discovered that the US government would still not allow the use of this "old" Communist material, so they did what any self-respecting international arms dealer would do: they removed all signs of its origin and shipped the stuff to Afghanistan.

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Government Recycles Risk of Danger Argument To Convince Congress To Reject Enactment of Fairness in Disclosure of Evidence Act; Congress Should not be Misled (Again)!

June 28, 2012 by Carl Lietz

A week or so ago over at Ellen Podgor’s White Collar Crime Prof Blog, guest blogger Jon May summarized the testimony of Deputy Attorney General James Cole concerning the Government’s position on the Fairness in Disclosure of Evidence Act 2012, an act which would require prosecutors in federal criminal cases to disclose exculpatory evidence in a timely fashion. Unfortunately, but not surprisingly, the Government is taking the position that Congress should not enact this important federal statute. Among other things, the Deputy Attorney General claims that requiring the Government to turn over this information would endanger the lives of Government witnesses.

As Jon May points out here, this argument relies on fear, not fact. It is, however, not the first time that the Government has used this argument. As I discussed in a previous post, in 1974, the Advisory Committee and the Supreme Court recommended amending the Federal Rules of Criminal Procedure to require the parties in federal criminal cases to exchange witness lists. This proposed amendment had a broad base of support, and ultimately both the Advisory Committee and the Supreme Court agreed that the change should be made. Before the Congressional Committee addressing the legislation, prosecutors argued (just like Deputuy Attorney General Cole) that pretrial disclosure of prosecution witnesses would result in harm to witnesses. Although the Committee recognized that there may be a risk in some cases, it ultimately concluded that “the risk is not as great as some fear that it is.”

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Justin Anand Sworn in as Federal Magistrate Judge; Federal Defender Program Celebrates Nearly 40 Years of Great Lawyering

June 26, 2012 by Carl Lietz

Last week, there was a lot going on for those of us that practice federal criminal law here in Atlanta. First, on Friday, over at the federal courthouse, Justin Anand was sworn in as a federal magistrate judge. Judge Anand is a former federal prosecutor and most recently served as a supervisor in the Office’s Economic Crimes Unit. Not surprisingly, his investiture ceremony was well attended. Those that could make it to the ceremony agreed that one of the highlights of the ceremony was when Jake Waldrop spoke. Jake is a federal criminal lawyer over at the Federal Defender Office and we, of course, are bias. Paul and I both worked with Jake at the Federal Defender Office and Jake is a great friend. By all accounts, Jake’s comments were very well received. He spoke from the heart, injected a healthy dose of humor, and entertained the crowd in a way that could only be pulled off by Mr. Waldrop himself. Great job Jake!

The day after Judge Anand’s investiture, current and former lawyers from the Federal Defender Office here in Atlanta gathered to celebrate nearly 40 years of great lawyering. In 1964, Congress passed the Criminal Justice Act, which provided the authority for this and other federal districts to establish Federal Defender Offices. And in 1973, pursuant to that federal statute, the Northern District of Georgia established the Federal Defender Office here in Atlanta. Over the years, the office has grown substantially but its core mission has remained the same: to represent people who are charged with federal criminal offenses in the Northern District of Georgia who cannot afford to hire counsel. The lawyers at the Defender Office do an outstanding job and the reunion on Saturday night was a huge success. Here's to nearly forty years of great lawyering in federal court!

Confrontation Clause Debacle: Supreme Court Muddies the Water by Ruling that Report on Which Expert Relied Need Not Be Admitted or Subject to Cross-Examination

June 19, 2012 by Paul Kish

One of the few bright spots in the Supreme Court's criminal law cases over the past few years has been the resurgence in emphasis on the protections afforded by the Sixth Amendment's Confrontation Clause. However, yesterday in a badly fractured 5-4 decision, the High Court took a step backwards, or maybe even sideways. The case is Williams v. Illinois.

Recall that a couple of years ago the Supreme Court ruled that prosecutors cannot use crime lab reports in criminal trials unless the analysts responsible for creating the report came to court and gave live testimony. Last year that rule was reaffirmed and deepened when the Court said the Confrontation Clause was violated if the prosecutor called a colleague or supervisor of the analyst who did the work.

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Constructive Possession: Court of Appeals Won't Reverse Even When Trial Judge Gave Bad Instructions to Jury

June 15, 2012 by Paul Kish

Federal crimes often involve questions about whether a person "possesses" an item. The concept of "constructive possession" allows a jury to convict a Defendant if he or she does not have actual possession, but has the power and intention to take control of the item at a later point. The United States Court of Appeals for the Eleventh Circuit, here in Atlanta, recently confronted a case where the trial judge used faulty language when telling the jury about the concept of constructive possession. Although the instruction was bad, the Court of Appeals refused to reverse the Defendant's conviction. The case is U.S. v. Cochran.

Roderick Cochran was seen outside a house, and a police officer claimed she observed him from a block away going in and out of the property. When the police used a warrant to go inside and search the house, they found drugs in the kitchen, and ammunition hidden in a bedroom. Cochran's driver's license listed him as living two doors down, and a piece of mail was found inside addressed to he and his niece, who had also lived there. Like some of the early scenes in "My Cousin Vinny", the defense established that trees and other obstructions made it impossible for the officer to have observed Cochran from a block away. Additionally, the defense showed that including Mr. Cochran's name on the letter addressed to his niece was a standard format, but it did not show he lived with the niece.

Like most federal courts, the Eleventh Circuit publishes Pattern Jury Instructions for use in federal criminal trials. The Pattern Instruction on possession tells jurors that even if a Defendant does not actually possess an item, he or she can have "constructive possession" if the Defendant has power and intention to take control of it later. In Mr. Cochran's trial, prosecutors convinced the trial judge to add a sentence that read:“Constructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing.” Cochran's very able lawyers from the Federal Public Defender objected to the instruction. The jury was quite confused, asking questions about how it should decide if Mr. Cochran possessed either the ammunition or the drugs. “If you have free access to a home then do you have constructive possession of the contents?” The district court replied that it could not answer the question and instructed the jury to consult the jury instructions. During deliberations the next day, the jury again sent a note to the district court, this time asking: “Regarding Count 1 [the ammunition charges] does the definition of constructive possession apply to the phrase ‘knowingly possess?’”
Again, the trial judge wold not answer the questions. The jury ultimately acquitted Cochran of the charge concerning the ammunition, but convicted on the drug crimes.

The Court of Appeals agreed that the government’s addition that, “[c]onstructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing,” eliminated the “power and the intention to take control over it later” language. That omission was especially troubling given that the definition of “constructive possession” immediately follows the instruction that “[a]ctual possession of a thing occurs if a person knowingly has direct physical control of it.” 11th Cir. Pattern Jury Instructions (Criminal), Special Instruction 6 (2010) . According to Judge Wilson (who wrote the opinion) "such a juxtaposition could create an inference that constructive possession, as defined by the government’s instruction, lacks an intentionality requirement."

Judge Wilson found a second problem with the prosecutor's extra language for the constructive possession instruction. The supplemented constructive possession instruction said that control over the premises—rather than control over the contraband itself—was sufficient to convict. However, the jury makes all choices about the facts and what inferences can be drawn from such evidence. Judge Wilson noted that the Court regularly "disapproves" of jury instructions that invade the jury’s province by implicitly mandating an inference.

Despite these problems, the Eleventh Circuit nevertheless upheld Mr. Cochran's drug convictions. "We find that although the wording of the final sentence of the constructive possession instruction would have been more clear if it included language about knowledge or intent, that flaw is mitigated by the totality of the instructions." The Court noted that the trial judge did tell jurors that it had to find "knowing possession, and that the prosecutors repeatedly argued that Cochran did in fact know about the drugs found in the home. These twin factors led the Court to affirm the conviction.

Eyewitness Identification: Eleventh Circuit Won't Join Most Courts that Allow Expert Testimony Showing Unreliability of Such Witnesses

June 12, 2012 by Paul Kish

Our beloved Eleventh Circuit Court of Appeals, just down the street here in Atlanta, recently refused to join the ever-growing chorus of other courts that permit expert witness testimony to illuminate the real shortcomings in eyewitness identifications. A 30-year old ruling in the 11th Circuit said that the Court of Appeals can never overrule a trial judge who won't allow a party to bring in an expert to explain to jurors the many problems with witness identification testimony. A criminal defendant recently asked the entire court to overturn this old decision, but the judges refused to take the case. Judge Rosemary Barkett issued a scathing dissent, which is worth reading. The case is US v. Owens, and can be found here

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.