Good Laws Sometimes Yield Bad Consequences: The Crime Victims Rights Act

April 18, 2014 by Paul Kish

Over the past 20 years or so, there has been a real push to protect the rights of victims in the criminal justice system. People who are victims of crime now have the right to speak in court, to receive restitution, and to be informed about all phases of a criminal case against the person who victimized them in the first place. In federal criminal cases, where we do a bulk of our work, this trend to give victims more rights culminated in the 2004 Crime Victims Rights Act (CVRA). I have spoken to lawyer meetings around the country since 2004, pointing out how criminal defense attorneys need to account for the fact that victims are now more heavily involved in federal criminal cases.

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.

Lawyers Who Represent People as Opposed to Attorneys Who Represent Companies or Movements: What Every Prospective Client Should Ask

October 14, 2013 by Paul Kish

Here at Kish & Lietz, we proudly represent individuals who are being investigated for or prosecuted with criminal offenses. A set of recent stories about how drug companies in Europe are refusing to provide the drugs used for executions reminded me about the difference between attorneys who represent individual people, versus those lawyers who mostly work for companies, or a movement, or an ideology. One of the recent death penalty drug stories can be found here.

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.

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Politics and Criminal Law: The Curious Case of Tom Delay and Reversal of His Convictions for Money Laundering

September 25, 2013 by Paul Kish

Politics impacts many of our criminal cases here in Atlanta, throughout Georgia, Florida and Alabama, and in federal cases we do throughout the country. The intersection of politics and criminal prosecutions is especially prevalent in public corruption investigations. Prosecutors often have a political motive in "going after" a particular defendant, and many a prosecutor has made a name for him or herself by bagging a politician. These principles were on full display in the case against Tom Delay, the former Majority Leader of the United States House of Representatives. Last week, the Texas Court of Appeals reversed Delay's convictions, ruling that he had not committed any crime. The ruling is here.

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.

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Prosecutors Must Play Fair: Are We Any Better Off on the 50th Anniversary of the Brady Decision?

May 14, 2013 by Paul Kish

In any criminal case, whether in Federal Court or one of the State Court systems, prosecutors are supposed to "play fair". The Fifth Amendment to our dear Old Constitution enshrines this fairness obligation in what we lawyers call the "Due Process Clause." Yesterday was the 50th anniversary of the day in 1963 when the United State Supreme Court issued its landmark ruling of Brady v. Maryland. That was the case in which, for the first time, the Supreme Court said that the Due Process Clause mandates that a prosecutor play fair by telling the defense about any exculpatory evidence, or evidence that tends to show that the defendant was not guilty. However, as basic as this obligation seems to be, I often wonder if our clients are that much better off than 50 years ago.

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.

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Supreme Court Approves Amendments to Federal Rules: Practitioners Need to Keep Up with the Changes

May 9, 2013 by Paul Kish

We handle lots of federal criminal cases. The various rules governing these cases are the same here in Georgia, they are the same when we take cases in Florida or Alabama, and we work under the same rules whenever we take cases in other parts of the country. Every so often, there are proposals to change the rules, and these amendments need to be first approved by the United States Supreme Court before they can be sent to Congress for ratification. Several weeks ago, the Supreme Court approved a series of rule changes that federal court practitioners need to keep up with in order to do the best job possible for their clients. Two of the bigger changes are discussed below.

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).

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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.

Supreme Court Unanimously Holds that Placing GPS Tracking Device on Automobile Without a Valid Warrant is a Fourth Amendment "Search"

January 23, 2012 by Paul Kish

Earlier this morning the United States Supreme Court issued a unanimous 9-0 decision, holding that the police engaged in a Fourth Amendment "search" when, without the benefit of a valid warrant, they put a GPS tracking device on a suspect's vehicle. The case is Jones v. United States. This is potentially a huge ruling that we need to assess more fully in the days and weeks to come, but for now, let's look at the decision itself.

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.

Diaz: Eleventh Circuit Court of Appeals Holds Government May Medicate Federal Criminal Defendant Involuntarily to Render Him Competent to Stand Trial

January 18, 2011 by Kish & Lietz

Michael Diaz was charged with armed robbery and gun offenses nearly seven years ago. Since the age of 13, he has “changed identities” five times and has been diagnosed with schizophrenia and psychosis. He represented himself during a bench trial in 2006, but the Eleventh Circuit vacated his convictions, holding that he had not knowingly waived his right to a jury trial. He refused treatment for his mental illness and was found incompetent to stand re-trial.

In 2003, the Supreme Court addressed involuntarily medicating criminal defendants for the sole purpose of rendering them competent to stand trial in Sell v. U.S. Last week in Diaz, the Eleventh Circuit explained:

Sell laid out these four standards the government must satisfy for involuntary medication to render a defendant competent to stand trial: (1) important government interests must be at stake, (2) involuntary medication must significantly further the state interests in assuring a fair and timely trial, (3) involuntary medication must be necessary to further the state interests, and (4) administration of the medication must be “medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.”
In Diaz, the Eleventh Circuit held that the government must prove the Sell factors by clear and convincing evidence. The Court further held that the medication would significantly further the government interests because it would likely render Diaz competent and the side effects would not significantly interfere with his ability to assist counsel. The Court also held that medication was needed to further the government’s interest because less intrusive methods, like psychotherapy, are unlikely to achieve the same results.

The Eleventh Circuit's opinion is available here.

Gowdy: Eleventh Circuit Affirms Conviction for Escape Where Defendant Was Released From Custody and Failed to Turn Himself Back In

January 3, 2011 by Kish & Lietz

Last Monday, the Eleventh Circuit Court of Appeals decided United States v. Gowdy, an unbelievable case in which the Eleventh Circuit joined several other circuits in holding that one need not actually be in federal custody to escape from federal custody under 18 U.S.C. § 751(a).

Gowdy was convicted in the Northern District of Alabama for federal drug crimes, and then turned over to the state of Mississippi. Mississippi lost the federal detainer against Gowdy and then turned him over to the state of Alabama to face charges pending there. Alabama, never having received the federal detainer, released Gowdy when he completed his sentence there. When federal authorities discovered the mistake, they issued a warrant for Gowdy’s arrest. He agreed to turn himself in after making arrangements for the care of his daughter, but never did so.

Gowdy was charged with escape from federal custody. He was convicted on the theory of constructive custody – that he was in custody under his federal conviction, despite his mistaken release. The Eleventh Circuit agreed, holding “that the custodial requirement of § 751(a) is satisfied where a lawful judgment of conviction has been issued by a court against the defendant... [T]here is no additional requirement that the defendant be physically confined in an institution at the time of the escape.”

The opinion in U.S. v. Gowdy is available here.

Federal Sentencing Guidelines Amendments Part VII: Temporary, Emergency Amendment Pursuant to Fair Sentencing Act of 2010

December 23, 2010 by Kish & Lietz

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. We have been posting analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

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.