Articles Posted in U.S. Supreme Court

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), 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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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

One version of “white collar crime” that often winds in federal court is called “honest services fraud”.  The basic version of the crime is when someone (usually a person who works either for some large organization, like a business or government) engages in a “scheme to defraud” that is intended to deceive or cheat another and to obtain money or property or cause the potential loss of money or property to another by means of materially false or fraudulent pretenses, representations or promises, or to deprive another of the intangible rights to honest services.  In 2010, the Supreme Court limited the words “intangible rights to honest services” to mean this law only applies to situations involving either a bribery or a kickback.   As a general rule, prosecutors need to prove an exchange, or “quid pro quo”, and must prove that the Defendant did, or refrained from doing, an “official act”, in exchange for money or something else of value.  However, there have been questions as to the type of “official act” which forms the basis of this crime.  Last Friday, the United States Supreme Court agreed to review the case of former Virginia Governor Robert McDonnell which could provide some answers in this area.

As noted above, honest services bribery or kickback requires an exchange of an official act for money or property. Some earlier decisions rejected efforts by prosecutors to expand the phrase “official acts” to include actions that are “customary” in the performance of many jobs. One court reversed the conviction of a state official who offered, for a fee, to introduce an architectural firm to high-ranking officials who could then secure contracts for the firm. The Defendant there promised to make introductions, but no evidence established that he promised to use his official position to influence those to whom the architectural firm was introduced. That court recognized a distinction between affording access versus actions that influence a decision.

Another federal court of appeals seems to take the same position. That Court said a legislator could not be convicted for taking money from a hospital in return for lobbying mayors to comply with state law in a way that benefited the hospital. That case also seemed to distinguish between actions that use or threaten the use of official powers versus actions that merely trade on reputation or access that accompanies the holding of a certain office.  Yet one more federal appellate court said that “official acts” are limited to those that influence an actual decision about real policies. That case involved a policeman who took payments in exchange for using an official police database to perform license plate and outstanding warrant searches. While accessing the database was part of the officer’s duties, he did not perform an “official act” in return for the money, in that the officer did not exercise any inappropriate influence on decisions made by the organization for which he worked.

Federal criminal cases, State criminal case, here in Atlanta, throughout Georgia and the rest of the country, are all impacted by this morning’s blockbuster ruling from the Supreme Court. The Court held that when a person is arrested, law enforcement cannot simply look through all the data in the arrested person’s cell phone, unless they first get a warrant from a judge. This massively important ruling is just the latest example of how the breakneck pace of modern technology runs square into the Eighteenth Century privacy considerations enshrined in the Fourth Amendment to our Constitution. I have written about this in earlier posts like this and this. . Read today’s case here.

Back in 1969, the Supreme Court issued a decision called Chimel v. California. Police officers looked through a pack of cigarettes in Mr. Chimel’s pocket after arresting him, discovering contraband. The Supreme Court in that case said the search was OK, creating what we call the “search incident to arrest” principle. When a person is arrested, it is basically OK for the cops to look through anything he or she is carrying or has on his or her person, with no need for a warrant.
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We do lots of federal criminal appeals, and one such case was argued earlier this week in the United States Supreme Court. The case is Rosemond v. United States, and it involves a question that comes up frequently in federal criminal cases. Federal prosecutors often try to hold one person accountable for the actions of another person under a law that prohibits a person from “aiding and abetting” a crime. The person who does the crime is the “principal”, and the question in Rosemond is whether the “aider and abettor” needs to have the same state of mind, or “mens rea”, as the person who does the criminal act.

They say you always “remember your first”, so I have a fond memory of the initial time (23 years ago, time flies!) I won an appeal of a federal criminal conviction, which also involved the aiding and abetting theory of liability. My case involved a young man who foolishly drove other guys who committed a series of armed bank robberies. I was able to convince the Court of Appeals that for the very first of those robberies, my client could not be held accountable for the gun that was used inside the bank. The Court of Appeals agreed that under the “aiding and abetting” theory of liability there must be proof that the aider and abettor had knowledge of the gun and the same intent or purpose as the other person who does the dirty deed. In my case, there was no proof that my guy knew about and agreed with the use of the very first gun before it was used. On appeal, I was able to convince the judges to reverse the conviction for use of that first gun, and thus lopped 20 years off my client’s sentence.
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I am always harping about how lawyers defending against federal crimes need to be creative, and need to challenge whether their clients even committed a crime. About 15 years ago, I raised a series of challenges against what is called the “straw purchase” theory of liability when a person buys a gun but later transfers the weapon to another person. The law merely says that gun dealer needs to keep records, and also says that the buyer cannot make a false statement about a “material” matter. ATF kept changing position, but finally said that it is a false statement about a material matter if the buyer intended to give the gun to another person. One of the cases where I raised this challenge resulted in an opinion in the United States Court of Appeals for the Eleventh Circuit, and can be seen here.

Earlier this week, the United States Supreme Court accepted a straw purchase case for review later this year or early in 2014. The case is United States v. Abramski.
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The United States Supreme Court recently announced that it will take on the case of U.S. v. Castleman. In that case, the federal court of appeals decided that Mr. Castleman’s prior conviction in Tennessee for “misdemeanor domestic assault” did not fall within the federal crime that prohibits gun possession by anyone with a prior conviction for a “misdemeanor crime of domestic violence”. This case encompasses not only the national debate concerning guns and violence, it also shows how the federal government is trying to further and further expand the reach of federal crimes. Likewise, it demonstrates how good lawyers often prevail in federal criminal cases.

Like many Americans, Mr. Castleman apparently got into a domestic squabble. He was charged with a crime because he committed an assault on the mother of his child, and like so many incidents, he got a sentence of probation. Several years later, federal authorities investigated him for gun crimes, resulting in charges for violating Title 18, United States Code, section 922(g)(9), which makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The phrase “misdemeanor crime of domestic violence” is defined as a misdemeanor offense, committed by a person with a specified domestic relationship to the victim, that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”
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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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In a case that criminal defense lawyers here in Atlanta and around the country need to all read, yesterday the United States Supreme Court ruled that the police can take DNA samples from people who are merely arrested for serious crimes, and that the Fourth Amendment to the United States Constitution does not prohibit this practice. The decision can be found here. I predicted in a previous post that this would be a close decision, and it was: 5-4. One major surprise was that Justice Breyer, normally a friend of personal liberties, sided with the majority in ruling that warrantless extraction of DNA samples passes constitutional scrutiny. The dissent was sort of “Nino and the Ladies”, with Justice Antonin Scalia being joined by the three female Justices, Sotomayor, Ginsberg and Kagan.

Recall that this case involved Alonzo King, who was arrested in Maryland for menacing a crowd with a gun. Under Maryland law, the police extracted a DNA swab which was later sent to and made a part of a national database. Sometime later still, King’s DNA was matched to a rape investigation from six years earlier. The Maryland Supreme Court threw out King’s conviction because the DNA was extracted without a warrant nor was there any individualized suspicion that justified taking the DNA sample. On Monday, the U.S. Supreme Court reversed the Maryland judges, and instead compared the process of taking DNA with other activities during the criminal booking process such as photographing and fingerprinting suspects when they are booked.
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