I got a notice recently that in a few weeks will be the 35th anniversary of the day I was sworn into the Bar as a lawyer.  Also, I decided to look back at the history of this little blog, and discovered that soon after my 35th Bar anniversary we will pass the 10th anniversary of this “weblog” (which is how these little publications were originally known).  Like all milestone anniversaries, these two caused a bit of reflection, something kind of rare for a busy practicing lawyer.

Life in general is quite different than the day in 1982 when I became an attorney at law.  I had more hair, it was a different color, had no children, and was plagued by fewer worries.  Now, me, my graying hair and always opinionated kids live in the data-driven world where devices are always at our reach, information can be summoned at a moment’s notice from a variety of fora, and individual privacy is a thing of the past.  I’m not complaining, progress is good.  However, these many changes have greatly changed law and lawyering. Practicing law is now much more fast-paced, but likewise the data revolution has made me far more efficient.   Continue Reading

Here at beloved K&L we do a fair number of appeals in criminal cases, mostly in federal court but occasionally in the state court system. Winning an appeal in a criminal case is always hard, it takes lots of work to understand what happened in the lower court, it takes even more time and energy to figure out all the potential legal issues, and then it takes more time still to write, revise, refine and get the arguments down in a manner that is both correct yet easily understood. Even when we do all that, we face one more hurdle before we can get relief for our clients; the “Harmless Error” rule. A case decided last week by all 11 Judges on the federal Court of Appeals here in Atlanta clearly shows this difficulty. The decision is United States v. Roy, and can be found here.

First, the “harmless error” rule. For a long time, courts reversed criminal cases whenever the trial judge made an error or mistake, such as allowing a prosecutor to use inadmissible evidence, or failing to properly instruct the jury on the elements of a crime. About 50 years ago the courts began using a rule that looks to whether the error or mistake “harmed” the Defendant, or if the mistake was just a “technicality” and had no impact on the overall result. If the trial judge made a mistake, under the harmless error analysis the court of appeals then looks to whether the error contributed to the jury’s verdict. The beneficiary of the error (meaning the prosecutors in criminal cases) had the burden on appeal to show beyond a reasonable doubt that the error did not contribute to the conviction. So far, so good. Continue Reading

My law partner Carl and I represent lots of people who are charged with federal crimes, both here in Atlanta and throughout the country.  Each of us recently had cases where we believed that our clients were innocent.  In each case, we also each faced federal prosecutors who aggressively went after our clients.  All charges were dismissed recently against these clients, which leads to some thoughts as to why this happens in some cases but not in other situations.

Not everyone recognizes the differences between how federal criminal cases are brought and the system used in most state court systems.  In the state systems, investigators bring their work to an Assistant District Attorney.  For the most part, these assistant DA’s cannot refuse a case that the police bring to them.  In federal court, on the other hand, the Assistant United States Attorney (or “AUSA”) has broad discretion to accept or reject just about anything brought to him or her by one of the federal investigative agencies.  This greater discretion means that federal prosecutors usually weed out, and reject, the weakest criminal cases.  Because AUSA’s have greater discretion to turn down less strong cases, they end up winning far more of the matters that they do take on.   Continue Reading

Of all the rules governing criminal cases I have learned over the past 33 years, the Brady rule is the most troubling.  Brady teaches that the government violates the due process rights of a criminal Defendant if the prosecution fails to reveal exculpatory evidence to the defense.  Unfortunately, it is the prosecutor and the police who decide whether to turn over “exculpatory” evidence to the defense lawyer.  In other words, if the prosecutor in a highly contested case finds out that there is evidence tending to show that the Defendant is innocent, the prosecutor gets to decide whether to tell the defense lawyer about that information.  This is obviously very similar to the old saying about letting the fox guard the henhouse.  Prosecutors are like most lawyers, they like to win, and even the most honest and even-handed prosecutor will not see the evidence the same way as does the defense attorney.  As a result, violations of the Brady rule are legion. The quote in the next paragraph comes from a pair of Brady cases that will be argued in the Supreme Court next month, Overton v. United States and Turner v. United States.

“Fifty years after Brady was decided, prosecutors still routinely withhold exculpatory and impeachment evidence from defendants. See Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. TEX. L. REV. 685, 688 (2006) (“Numerous studies have documented widespread and egregious Brady violations.”); Janet C. Hoeffel, Prosecutorial Discretion at the Core: The Good Prosecutor Meets Brady, 109 PENN. ST. L. REV. 1133, 1148 (2005) (“Withholding favorable evidence … seems to be the norm.”). This stubborn, pernicious problem is not localized. See United States v. Olsen, 737 F.3d 625, 631 (9th Cir. 2013) (Kozinski, C.J., dissenting from denial of reh’g en banc) (citing cases). And Brady violations occur in all sorts of criminal cases, from capital murder cases to those involving white collar offenses. See Tiffany M. Joslyn & Shana-Tara Regon, Faces of Brady: The Human Cost of Brady Violations, Champion, May 2013 (describing Brady violations in cases involving murder, bribery under the FCPA, cocaine trafficking, unlawful dispensation of prescriptions, and the like).

What happened in Overton and Turner is truly disturbing.  A middle-aged woman was brutally murdered in a “bad” neighborhood of Washington, DC in 1984.  Seven men went to trial, were found guilty, and have spent the last three decades in prison after being convicted.  The prosecution’s theory at trial was that the victim died at the hands of a gang attack that was witnessed by several individuals.  Years after the convictions, the Defendants (and their ever-vigilant attorneys) discovered a raft of helpful and exculpatory evidence that the prosecutors and police officials had withheld.  1) The police and lead prosecutor got statements from witnesses who implicated another person, McMillan, as being on the scene and acting suspiciously.  McMillan later attacked other middle-aged women and was convicted for those crimes that had disturbing similarities to the case in question. 2) The prosecution’s theory always was that the crime was a group attack, even though the prosecutor had suppressed evidence from other witnesses that only one or two perpetrators could have been in the area where the victim was attacked. 3) The witnesses called by the prosecutors at trial had lots of problems that the prosecutors decided to keep from the defense, issues such as one was high on PCP when she identified suspects, that same witness asked her friend (another witness) to lie, another witness was physically threatened by the police when she did not say what they wanted her to say.  All of this withheld evidence likely would have been helpful to the defense. Oh, I forgot to mention, the jury acquitted two Defendants who heard from these same prosecution witnesses, and needed 40-50 votes before it could convict two of the others.

The legal issue in these cases is whether the withheld evidence was “material”.  Under the Brady rule, a Defendant does not get a new trial when the prosecutor suppresses evidence unless that evidence was important enough so that it would have impacted the jury.  The exceptionally talented lawyers representing the Defendants contend that the lower courts used an improperly harsh “materiality” standard, and that the case should be sent back for further proceedings.

Cases like this keep me up at night.  Like most lawyers in my business, I have seen situations where prosecutors hold back on exculpatory information.  I recall one case where an otherwise very honest and honorable prosecutor knew about yet failed to tell me that his main witness had been caught telling an identical lie to what she said about my client.  Only by dumb luck did I discover the information shortly before trial.  My client was acquitted, but nothing ever happened to this prosecutor.  Hopefully, the Supreme Court will send the message when it decides these two cases in the near future.

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Handling criminal cases, mostly in the federal courts in Atlanta, throughout Georgia, and in many other states, is how we spend most of our time, as anyone who reads this blog knows. The single biggest decision in most of our cases is whether the client should, or should not, plead guilty.  Even when we are convinced that our client “did not do it”, some clients don’t have the resources or intestinal fortitude to fight the case all the way to the finish line. I recently concluded such a case, where I thought that the prosecution’s case was weak from the beginning and was getting weaker as we approached trial.  The client, however, did not want to take the chance on losing, and since he is the one who has to serve the time in prison, he decided that the better approach was to negotiate a deal for a much shorter sentence.   I was thinking about that when I noticed this morning that the U.S. Supreme Court granted review in a case that directly impacts  guilty pleas.  The case is Class v. United States.

The criminal justice system today in which we work is mostly a series of guilty pleas.  Trials are a vanishing species.   Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012).  In federal court, approximately 95% of all cases are resolved through a guilty plea.  Lindsey Devers, Bureau of Justice Assistance, U.S. Dep’t of Justice, Plea and Charge Bargaining 1 (2011), https://www.bja.gov/Publications/PleaBargaining ResearchSummary.pdf.  However, in the case accepted for review today, the Supreme Court is wading into the issue of whether our clients might be able to appeal their conviction even after a guilty plea.

Ms. Class is a military veteran who had some firearms hidden in his vehicle which he parked in a lot near the U.S. Capitol building.  A law enforcement officer thought she saw a holster, confronted Mr. Class, and a subsequent search uncovered the weapons.  Turns out that the place where he was parked might have technically been on the Capitol grounds, and DC laws made any possession of firearms there illegal. Acting as his own attorney, Mr. Class challenged the laws, arguing that the prohibition either violated his Second Amendment rights, or violated Due Process in failing to tell the public about what was, and was not, illegal.    The District Judge denied his challenges and Mr. Class pled guilty.  However, he then filed an immediate appeal, and explained to the appellate court that he wanted to continue his challenges.  The appellate court appointed  some very talented lawyers to help out Mr. Class, and those attorneys presented a very refined and compelling argument that the laws used against this veteran were unconstitutional.  The appellate court rejected the appeal, noting decisions that say a guilty plea waives all rights, except a challenge to the “jurisdiction” of the court (or whether the plea was voluntary).

It turns out that a fair number of federal appellate courts would likely have allowed Mr. Class to continue his fight, even after a guilty plea.  These cases arise from two Supreme Court decisions in the 1970’s which held that claims about double jeopardy or prosecutorial vindictiveness survive a guilty plea and can be brought up on direct appeal.  However, the prosecutors want to nip such cases in the bud.  They point out that there is a specific part of the Federal Rules of Procedure that permit an appeal after a guilty plea, but only when the prosecutor agrees.  Mr. Class, like my clients, does not want to say “mother may I” when deciding if he wants to appeal.  As a result, I am fairly certain that the Department of Justice will fight strenuously against Mr. Class’s claim that he still has the right to challenge the constitutionality of the statutes even after pleading guilty.  Again, because pleading guilty is often the singles biggest decision we help our clients to make, we plan on following this case closely.

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The online Merriam-Webster dictionary defines the root word of “fascination” as “to transfix or hold spellbound by an irresistible power.”  Since 1971, the Supreme Court of the United States has on all least 13 occasions directly addressed various aspects of the federal gun crime found at 18 U.S.C. §924(c).  A total of forty-three Supreme Court cases involve people convicted of this law, even if the issue did not directly involve the language of this statute.  The High Court’s “fascination” with this statute continues, this time with a case out of Iowa, Dean v. United States, the docket for which can be found here.  The Supreme Court granted review of the case this past October, and will hear arguments on the last day of February, 2017.

Those of us who regularly practice criminal law in the federal court system generally refer to this statute as “924(c)”.  The history of the law is interesting, and somewhat relevant to current public debates.  In 1968, violent crime rates were rising, reaching a peak in the early 1990’s, after which they have dropped significantly.  The FBI numbers can be found on their database. Continue Reading

As a criminal defense lawyer I often get questions as to whether there is a difference between a “regular” guilty plea and a “nolo” plea.  Technically, the latter is from the Latin phrase, “nolo contendre”, more or less translating into “no contest.”  A few days ago the United States Court of Appeals for the Eleventh Circuit, where we handle lots of cases, issued an opinion discussing the “nolo” plea, its ramifications, and issued a ruling as to when a prosecutor can make use of an earlier “no contest” plea.  The case is United States v. Green.

Mr. Green has had some previous problems with law enforcement, and his problems got worse when he was charged with new crimes.  He got out on bail, but only with the condition that he wear a GPS-monitored ankle bracelet.  He apparently removed the ankle monitor, so the police went looking for him at a woman’s residence where they figured to find him.  Once inside the master bedroom, the police saw a large jacket (and the woman was not that size), men’s shoes on the floor, and most importantly, a firearm and ammunition scattered around. They subsequently discovered the unlucky Mr. Green hiding nearby in the closet. The feds charged him with being a previously (12 times!) convicted felon in possession of a firearm, and he went to trial represented by a very capable Federal Public Defender. Continue Reading

Whether here in Atlanta or other places, Carl and I represent a lot of folks who eventually face a sentencing hearing at the end of a federal criminal case.  Anyone whose spare time has brought them here knows that we chat about federal sentencing a lot, whether to analyze or to criticize how it is applied.  But whether we are analysts or critics, we always recognize that the topic remains one of the hottest subjects in the United States Supreme Court.  Yet another case this term, Beckles v. US, exemplifies this point.

OK, first the background.  The infamous “Armed Career Criminal Act” (or “ACCA”), part of the 1986 criminal law re-work that led to the mass-incarceration we are only now digging out from, yields a 15-year mandatory minimum sentence for anyone foolish enough to have anything to do with a firearm after having 3 or more prior convictions for drug dealing or a “violent felony”.  As always, the devil is in the details, and the question of what is a “violent felony” has bedeviled federal judges for the past 3 decades.  The issue was made even more difficult when the brains in Congress included as a violent felony any crime that “involves conduct that presents serious potential risk of physical injury to another.”  We call this latter phrase the “residual clause” of the ACCA.  After 25 years of trying to figure out what this squishy definition might mean, the late Justice Antonin Scalia (may he rest in peace) convinced his brethren to invalidate the entire clause as being unconstitutionally vague. That case was Johnson v. United States. Continue Reading

Here we go again, another federal criminal case which on appeal goes to the United States Court of Appeals for the Eleventh Circuit here in Atlanta, and that court rejects the Defendant because the specific argument was not brought up in the trial court. We have written about this issue many times, the need for lawyers to anticipate issues and, more importantly, the need to “object” or ” preserve” that issue.  An opinion issued yesterday in the Eleventh Circuit reminds me about this whole area,  in which the appellate court basically kicks the Defendant out of court because a good issue she raised on appeal was never mentioned during the trial itself.  The case is United States v. Leon, and can be accessed here.

Ms. Leon was charged with a series of crimes arising out of an “investment” offering. Apparently, she was was the assistant for the head of the investment company.  At his direction, she made a series of cash withdrawals from the company bank account, all in amounts below $10,000.  However, on several days she made multiple withdrawals, and the aggregate amount of cash removed from the bank on those days exceeded $10,000.

Many readers of our little blog know about the rule that requires financial institutions (as well as lawyers) to file a “CTR” if they engage in any financial transaction involving more than $10,000 in cash for a person or institution in a single day.  There are loads of different statutes in this area.  In Ms. Leon’s case, the prosecutors charged her with the specific sub-section of a statute that makes it a crime to cause (or attempt to cause) a financial institution to NOT file the CTR.  A separate sub-section of that same statute involves the crime of “structuring”, which is the very similar but slightly different crime of breaking up transactions into increments below $10,000 with the goal of avoiding the filing of the CTR.  I know, they sound incredibly similar, but they are in fact different.

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A recent state court criminal case here in Atlanta is very similar to a federal criminal case we handled in Savannah last year.  In each case, one person made a demand against another person, and the demand arose out of civil litigation.  Prosecutors in each case alleged that the “demand” was actually the crime of “extortion.”  The recent case here in Atlanta was handled by our friend Brian Steel, who is an excellent lawyer.  Just like in our case last year in Savannah, Brian got the charges dismissed against his client.  You can read about the recent Atlanta case here.

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. Continue Reading