Criminal Defense Attorneys Win Case in Supreme Court: Decision Turned on the Meaning of When " Death Results"

March 1, 2014 by Paul Kish

This past Wednesday some federal criminal defense attorneys won a case in the United States Supreme Court when they convinced the Justices that they had the better interpretation of the part of a law that increased their client's sentence if "death results" from something he did. I previously posted about the case here. The case issued on Wednesday is Burrage v. United States, and can be read here.

The case revolves around a federal statute that requires a 20-year mandatory minimum sentence for a person dealing drugs "if death results." Mr. Burrage was charged with selling heroin to a man who died after a drug binge involving multiple illegal substances. The jury would have to decide if the heroin sold by the Defendant to the victim caused the man's death. Mr. Burrage's lawyers wanted the judge to tell the jury that they would need to find that selling heroin "played a substantial part" in bringing about the death, and that the death was a "direct result of or a reasonably probable consequence of" using the heroin. The trial judge and the court of appeals rejected the Defendant's contentions, and said it was OK to tell the jury that it was enough if they decided that the heroin was a "contributing cause" of the victim's death. The instruction told the jury that "a contributing cause is a factor that, although not the primary cause, played a part in the death[.]” The jury found Burrage guilty, and the United States Supreme Court agreed to hear the case.

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Federal Criminal Appeals: Sometimes the Defendant Can be Released on Bail During the Appeals Process

December 18, 2013 by Paul Kish

We do lots of criminal appeals, both in Federal Court and in the Georgia State Courts. On occasion, we ask the judge to allow our client to remain free on bail, or bond, while the case is appealed to a higher court. This is kind of tricky, in that the attorney must be well-versed in the intricacies of the Bail Reform Act, a 1984 law that kind of flipped the playing field when it comes to having a defendant released on bail. Perhaps even more tricky is the question of when the case usually calls for no bail, can the lawyer get around that by a part of the law that seems to permit release on bond if the case involves "exceptional reasons." Beyond that is the question of who decides whether the Defendant's case involves "exceptional reasons: the trial judge or the court of appeals itself? An opinion issued earlier today by the United States Court of Appeals for the Eleventh Circuit answers that question once and for all in federal cases arising in Georgia, Florida and Alabama. In cases that fall into the category of no bail during the appeals process, it is the district judge gets to first decide whether the case involves "exceptional reasons", and thus can still let the Defendant stay out on bail. the case is United States v.Meister, and can be found here.

Meister was sentenced for having child pornography. His lawyers asked that be be permitted to remain on bond during the appeals process. The Bail Reform Act denies release for Defendants who appeal certain serious crimes. Defendants who violate the child pornography laws are thus prohibited from remaining on bail during appeal.

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Good Lawyers Are Persistent, and Continuous Arguments Result in Supreme Court Victory

June 19, 2013 by Paul Kish

As any reader of this blog knows, I am a big fan of good, aggressive and persistent criminal defense lawyers. I have had the chance to practice and observe many great criminal defense lawyers, here in Atlanta, throughout Georgia, and in other parts of the country when my work takes me to places like Florida, Alabama, New York and California. I especially like it when criminal defense lawyers "stay the course", and continue pressing the same argument over the years until they finally prevail. Precisely that situation took place this past Monday when the United States Supreme Court overruled Harris v. United States. What happened was that the Court finally changed its mind, and decided that mandatory minimum sentences are not excluded from the rule first announced in New Jersey v. Apprendi. The case from this Monday is Alleyne v. United States, and can be found here. I previously posted on this issue here.


Mr. Alleyne's Public Defenders were just such persistent and aggressive criminal defense attorneys. They objected to the sentencing judge's ruling, which was correct at the time it was made. They continued their objection all the way to the Supreme Court, which agreed with them Monday and changed that rule. Here's how it happened.

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Supreme Court Accepts Case to Decide What it Means When "Death Results" From Drug Dealing

May 2, 2013 by Paul Kish

Sitting here in Atlanta, I really like when I find out about bright, energetic lawyers handling federal criminal cases all around the country. One such case is Burrage v. United States, where this past Tuesday the United States Supreme Court agreed to review important questions as to what it means when "death results" from drug dealing. To many lawyers and others in this field, it might seem that a case like this only really matters to folks defending drug cases. However, this is an important appeal on issues related to causation, the appropriateness of jury instructions, and construing federal statutes.

Mr. Burrage was like too many folks, caught up in the drug business, selling relatively small amounts of controlled substances. His life intersected with Joshua Banka, another lost soul who was a long-standing poly-substance abuser. Burrage sold some heroin to Banka, who died after using some of the drug. Banka had lots of other drugs in his system as well, and his girlfriend acknowledged he'd used some of these other drugs in the day before he died. The experts who testified at trial gave complex answers about the cause of Banka's death, but they could not say that Banka would not have died if he had not used heroin (this method of saying the word "not" three times in the same sentence appears in the briefs for each side of the case).

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Federal Court in Atlanta Overturns Fraud Sentence: the Importance of Good Lawyering at the Sentencing Hearing

April 26, 2013 by Paul Kish

Like our federal cases here in Atlanta and throughout the country, it is important to keep in mind how a federal sentencing hearing takes place. The various phases of the federal sentencing process require the Defendant's attorney to not only know the law, but also to know the procedure, so that "objections" are properly preserved. A decision issued today by the United States Court of Appeals for the Eleventh Circuit makes this point. In that case, the attorney properly objected, thus preserving the issue for appeal. In the Court of Appeals, the Defendant raised the same argument, and the appellate tribunal agreed. The result is a lower sentence for the Defendant. The case is United States v. Washington.

Mr. Washington was charged in a large fraud scheme involving banks and credit card customers. He pled guilty. As a result, the United States Probation Officer prepared the very important document called the "Presentence Investigation Report", which is often called the "PSR". The PSR has two major parts, one of which is sort of a miniature biography of the Defendant. The second part of the PSR is where the probation officer makes some recommendations as to how the complex Federal Sentencing Guidelines should apply.

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Supreme Court Says Police Need Search Warrant to Perform Blood Test on Suspected Drunk Driver

April 18, 2013 by Paul Kish

Hallelujiah! The Supreme Court yesterday continued its recent string of protecting all of our rights by reinvigorating the reach of the Fourth Amendment's requirement that police need a search warrant to get incriminating evidence from a suspect. Yesterday's case involved the forcible removal of blood from a drunk driving suspect. By an 8-1 margin the Court held that getting the blood without a warrant violated the Fourth Amendment. The case is Missouri v. McNeely.

In the early-morning hours of Oct. 3, 2010, Missouri State Highway Patrol Cpl. Mark Winder pulled over Tyler G. McNeely. McNeely, whose speech was slurred and who had alcohol on his breath, failed a field sobriety test and twice refused to take a breath test.
Winder arrested McNeely. While en route to the jail, the officer stopped by a hospital. McNeely refused to submit to a blood test. Officer Winder then ordered a technician to draw blood anyway. The officer later said he did not try and get a warrant because he thought Missouri law did not require it.

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Federal Criminal Convictions Reversed Even When Lawyers Failed to Make Argument: No One Bothered to Look at Whether the Defendant's Actions Were "Contrary to Law"

February 24, 2013 by Paul Kish

In an amazing opinion issued in Atlanta by the Eleventh Circuit, the court reversed a series of federal criminal convictions because the indictment did not even charge a crime. And, they did so even though none of the lawyers for either side bothered to address whether the indictment properly charged a federal criminal offense! The whole issue came down to whether the Defendant's actions were "contrary to law", and because they were not, the court of appeals reversed all their convictions.

The Defendants and their company imported dairy products into the U.S. from Central America. Apparently, several of their imported products were contaminated with E. Coli and salmonella.

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U.S. Supreme Court says that Double Jeopardy Clause prevents retrial when trial judge erroneously granted acquittal at Defendant's first trial

February 21, 2013 by Paul Kish

Both in federal criminal cases here in Atlanta and around the country, as well as in the state court proceedings we handle throughout Georgia, we occasionally deal with issues relating to "Double Jeopardy," the portion of the Fifth Amendment that says prosecutors only get one bite at the apple. Yesterday, by a 8-1 vote, the United States Supreme Court continued to protect all of us against multiple prosecutions by holding there cannot be a second trial even when the judge made a mistake by erroneously granting an acquittal to the Defendant in the first trial. The case is Evans v. Michigan.

Mr. Evans was accused of setting a building on fire. One Michigan law makes it a crime to burn a dwelling, while a second law makes it a crime to burn "other real property." At the close of the evidence, the Defendant's lawyer pointed to standard jury instructions which require proof that the property was a "non-dwelling" before a person could be convicted of the crime of burning "other real property." The trial judge, noting that the property owner said the building WAS a dwelling, granted an acquittal for the Defendant because the prosecution had failed to prove the property was NOT a dwelling. It turns out the trial judge was completely wrong, in that burning "other real property" is a lesser-included offense of the greater crime of burning a dwelling. The prosecution appealed, and Michigan's appellate courts decided that a second trial was OK, even despite the protections from the Double Jeopardy Clause.

The U.S. Supreme Court reversed, holding that retrial following a court-decreed acquittal is barred, even if the acquittal was based upon an egregiously erroneous foundation. An "acquittal" includes any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. This is different from procedural rulings, which lead to dismissals or mistrials for reasons unrelated to factual guilt or innocence. An acquittal is a substantive ruling that concludes proceedings absolutely, and thus raise significant Double Jeopardy concerns. Here, the trial court clearly evaluated the prosecution's evidence and determined that it was legally insufficient to sustain a conviction. While the acquittal was the product of an erroneous interpretation of governing legal principles, that error affects only the accuracy of the determination to acquit, not its essential character.

Along the way, the Supreme Court addressed the prosecution's argument that Mr. Evans got a "windfall", and he should not get the benefit of a real bonehead ruling by the trial judge. The U.S. Supreme Court was unimpressed, noting that States and the federal government have the power to prevent such situations by disallowing the practice of midtrial acquittals, encouraging courts to defer consideration of a motion to acquit until after the jury renders a verdict, or providing for mandatory continuances or expedited interlocutory appeals. The bottom line: the Double Jeopardy Clause remains intact as one of the bulwarks protecting individuals from multiple prosecutions, even when the first case was erroneously decided against the prosecution.

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Good lawyering results in federal criminal case going to Supreme Court: Will the Apprendi decision be extended to sentencing factors that change mandatory minimum punishments?

October 25, 2012 by Paul Kish

Good lawyering in federal criminal cases often requires that the attorney not only be a student of the law, he or she needs to also recognize when a particular issue might be a current "loser" but the higher courts are waiting to change the rule. That might turn out to be the situation in Alleyne v. United States, a case recently accepted for review by the United States Supreme Court. Mr. Alleyne's prescient Public Defenders objected to a ruling that was correct at the time it was made, but early next year the Supreme Court will hear arguments as to whether the rule should be changed.

In 2000, the Supreme Court issued the landmark ruling of Apprendi v. New Jersey. That case held for the first time that any fact that can change the maximum punishment to which a Defendant is exposed must be pled in the indictment, and proven to the jury by the usual "beyond a reasonable doubt" standard. This is very important because until that time many facts that result in potentially longer prison sentences could be decided by one person, the sentencing judge, and that judge could use the less stringent "preponderance" evidentiary standard.

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Going to the Dogs: the upcoming Supreme Court case of Florida v. Harris

October 3, 2012 by Paul Kish

Here in Atlanta, in both federal court and in state court criminal cases, we regularly see situations where the police stop a person's vehicle, and walk a drug detecting dog around the car. If the dog "alerts", the police contend they have sufficient grounds, or "probable cause", to search the vehicle. I am currently litigating just such a case in the Georgia Court of Appeals, but the issue turns on whether they had the right to keep the driver at the side of the road long enough so as to let the dog do his thing. This term, the United States Supreme Court will confront a case out of Florida that presents a clear question: whether the police may conduct a warrantless search for drugs based solely on an alert by a drug-sniffing dog without any other evidence of the dog’s reliability so long as the dog has been “trained” or “certified.” The case if Florida v. Harris, and it will be argued in a few weeks.

Here's how the case got to the Supreme Court. In rural Liberty County, a sheriff’s deputy was on patrol with his trusty drug-detecting dog named Aldo. The dog had been trained to detect the illegal drug methamphetamine. The deputy pulled over Clayton Harris, because his truck's license plate had expired. The officer noticed that Harris was shaking badly, and was breathing rapidly — telltale signs, for the officer, that Harris might be on drugs. The officer wanted to search the truck, but Harris refused. The officer then had the dog walk around the truck, and the animal “alerted” to a drug on the door handle of the driver’s side of the truck. With that “alert” as legal justification, the officer searched the interior of the truck’s cab, and found ingredients for making methamphetamine.

Harris was charged with possessing materials for making meth. His very able public defenders argued that the search of the truck’s interior violated the Fourth Amendment because the deputy had no legal basis for conducting such a search. The Florida Supreme Court subsequently agreed, concluding that Aldo’s “alert” to a substance on the truck door handle was not sufficient to justify searching the cab. The state Supreme Court said that an "alert" is not enough by itself to satisfy a court that the dog is properly trained and certified for the detection of a specific illegal drug. Instead, the highest court in Florida held that an “alert” can provide the basis for a search only if the evidence shows how the particular dog was trained, what was done to satisfy an expert that the dog was adequately trained, how the dog had actually performed in “alerting” to drugs in other situations, and how well trained and how experienced was the dog’s police handler.

Florida, most of the various states, and the federal government, are all asking that the U.S. Supreme Court reverse the decision by the Florida Supreme Court. They want a ruling that the fact that a trained and certified dog does make an “alert” should be enough, all by itself, to justify a police officer’s further search of a vehicle for illegal drugs.

Frankly, it appears that the Florida Supreme Court's ruling stands alone. Most states, and virtually all federal courts, hold that an alert by a drug dog is sufficient for searching a vehicle. Some folks in law enforcement call the detector dogs "four-legged probable cause." While we will watch the case closely, it will be a surprise if the U.S. Supreme Court says that anything more is required for a search in this context.