Swear to God, same thing happened to me!  Go to a party on a Saturday night, cops bust in,  homeowner claims to “know nothing”, everybody gets busted and goes down to the police station.  Officers make arrests for trespassing, since the homeowner dummies up.  That is basically the fact pattern from District of Columbia v. Westby, to be argued in the Supreme Court soon.  However, there is no crime of “trespassing” if there is nothing to suggest that that the partygoers knew or should have known that they were entering against the owner’s will.  The arrested folks brought a lawsuit against the arresting officers for false arrest, they won a judgment, and the DC police brought the case to the Supreme Court, arguing that its officers had probable cause under the Fourth Amendment to make the arrests.

Westby is a bit more interesting, and salacious, than my aborted party that one Saturday eons ago.  First, there was someone named either “Peaches” or “Tasty” identified by some of the partiers as the person who told them about the shindig.  Also, when the cops arrived, some of the women were selling lap dances, some had money hanging out from their undergarments, and most shockingly, the officers smelled marijuana.   Continue Reading

I happen to like people like Rodney “Rod” Class, even if I often  disagree with them.  Some people call him a “gun nut.”  He refers to himself as a “constitutional bounty hunter.”  He likes his guns, and has a very healthy distrust of government.  Rod’s case will be argued late next week in the Supreme Court, and the main issue is whether a guilty plea waives a challenge to the constitutionality of the criminal offense to which the person entered a plea.  I wrote about Rod’s case last Winter, and sort of predicted it might be accepted for review by the Supreme Court.  Turns out it was accepted, and it is a big deal in our business.

Without guilty pleas, the criminal justice system would likely collapse.  That is one big reason why this case is important.  Mr. Class, foolishly representing himself, pled guilty to a federal crime of possessing “readily available” firearms on the property of the U.S. Capitol grounds.  Now, I happen to agree with a law that says no one should have a firearm on such property, but Rod thought he was within his rights.  Nevertheless, he pled guilty, got a “time served” sentence, which normally would have ended the situation.  But, as I mentioned above, Rod is an “interesting” person.  He wanted to continue his fight against this particular law up through the appellate courts.  He wanted to challenge whether it is a crime for a law-abiding citizen to have a constitutionally protected gun, on the property of his own Capitol, for gosh sakes! Continue Reading

OK, those unfortunate souls who occasionally read this blog know that I like to go on about the intersection of the 18th Century language in our Bill of Rights (which includes such tremendous ideas like religious liberty, freedom of expression, the right to not incriminate oneself and the right to be free from unreasonable searches), with the world of smartphones, digital communications, and mountains of data for each person and incident that happens to be captured by some device or trove of information.  We all know the the “Framers” or our Constitution had no way of predicting what the world would look like in 2017, but it is fascinating that we try to match their expectations up with modern existence.

Carpenter v. United States is the latest case involving this confluence of our rights and the Digital Age. Mr. Carpenter was indicted for being involved with a series of armed robberies. One of his buddies gave the police a series of phone numbers that Carpenter had used.  The police then went to the cell phone providers, seeking lots of different kinds of information that can be dredged up involving how a device was used, where it was located, and other data that essentially provides a road map to the device-user’s life.  But, here’s why the case is in the Supreme Court:  the police did not get a search warrant from a judge, but instead they resorted to a federal law called the Stored Communications Act (the “SCA”), a 1986 law that allows phone companies to disclose records when the government provides them with “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation”. Under the SCA, a prosecutor can get around the need to show that there is probable cause to believe that a crime has been committed.  More and more every year, we see cases where the police regularly avoid search warrants, and instead get mountains of data from cell phone providers under the more lenient SCA. As a matter of fact, my law partner Carl and I did a case very similar to what happened in Carpenter, cell phone data obtained under the SCA that was going to be used against our client. Continue Reading

Like the swallows returning each year to Capistrano, we are in the midst of the annual flight to Justice, when the U.S. Supreme Court decides which cases it will review at the beginning of its new year.  On the first day when they announced several cases for review, the Supreme Court demonstrated that this “Term” will have a big impact on the type of constitutional issues that we regularly face when representing people or companies under investigation or being prosecuted for alleged crimes.

I will do a series of posts about the new cases.  These subsequent posts will give more detail and some of the juicier aspects of the case to show that these are not just dry legal disputes, but instead involve real people and lawyers fighting for our rights.  But today, I’ll just do brief reviews of the 3 big criminal justice cases announced today that will be on the Supreme Court’s plate this upcoming Term. Continue Reading

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