Sunday, September 18, 2016

Just Between Us

As has been widely reported (here, here, and here, for instance), this summer the federal criminal-defense bar learned that the Kansas United States Attorney's Office was in possession of video recordings of attorney-client meetings at CCA, and audio recordings of attorney-client telephone calls from CCA.

Links to orders and other papers from the ensuing litigation are now available at our website, along with our suggestions for protecting your attorney-client communications at all federal detention centers. This information will remain on our site for the foreseeable future, and we will update it as necessary. In the meantime, be vigilant.

Sunday, September 11, 2016

Government's "protected discovery practices" under fire by the courts

Practitioners in Kansas City know the drill: The government conditions discovery on a promise not to give copies to the defendant, or on an agreement that defense counsel may only view the discovery in the government's office under strict conditions.

These days are coming to an end.

Earlier this summer, Tenth Circuit Judge Holmes, joined by Judge Kelley, issued a concurring opinion in an unpublished case to express "significant concern regarding the ethical or legal propriety" of conditioning discovery on an agreement not to give copies to the defendant.

And last week, Kansas District Court Judge Robinson granted a motion under both Rule 16 and a standard pretrial discovery order to compel the government to give defense counsel copies of videos of controlled buys from the defendant.

In United States v. Perez-Madrigal, defense counsel requested copies of these videos and was told, simply, "no." The government insisted that counsel would have to review the videos in the government's office, without his client present (at least "initially"). After hearing from the parties, Judge Robinson rejected all of the government's justifications (informant safety; evidence safekeeping) for not allowing counsel to have copies, and for excluding the defendant from counsel's initial review of the evidence.

Judge Robinson then went further, pointing out that the government's protected discovery practices "significantly interfere" with the defendant's Sixth Amendment right to prepare a defense; they "undermine[] the fostering of trust between a defendant and his attorney"; and they make it "difficult for counsel to provide effective prepresentation [with respect to plea bargaining], and for the Court to accept a defendant's plea knowing that it was made voluntarily and with knowledge of the factual basis for the plea." Finally, Judge Robinson emphasized that it is "not the responsibility or duty of the USMS" to transport defendants to the government's office to review discovery.

In the end, the Court rejected the government's practice of "applying protective discovery as a default rule to an entire genre of cases." If the government has good cause to restrict discovery in a particular case, it may request a protective order.

Monday, September 5, 2016

Why shouldn't confrontation rights apply at sentencing?

Earlier this summer, a panel of the Tenth Circuit declined a pro se defendant's invitation to overrule 10-year-old precedent reiterating that "the Confrontation Clause does not apply at sentencing," and holding that "Crawford does not require otherwise." The panel did not address the merits of the issue, but rather simply noted that one panel may not overrule another panel "absent en banc reconsideration or a superseding contrary opinion by the Supreme Court."

Does the issue have merit? The Sixth Amendment itself does not speak of confrontation as a trial-only right. And it appears to grant equal importance to confrontation and counsel---a right that we have long understood applies at sentencing:

The clauses are identically structured. So why the different treatment? The rule that confrontation is not a sentencing right can be traced back to a 1949 Supreme Court case that was decided in a world of jury trials and indeterminate sentencing. The sentencing landscape today is utterly different. As anyone who has worked in the 21st century criminal-justice system well knows, "[f]or most felony defendants, the adversarial process begins at sentencing."

That observation---made by Idaho College of Law Professor Shaakirrah R. Sanders---and the structure of the Sixth Amendment's text are at the heart of a new article by Sanders titled The Value of Confrontation as a Felony Sentencing Right. This article is your road map to claiming a confrontation right at sentencing. Read it. Use it. Win.

Tuesday, August 30, 2016

"No one is actually being lugged off in cold irons bound."

Questions concerning sex offender registries figuratively ask where to draw lines. One main question is at what point do we finally draw the line and say registration is punishment? In the case of Michigan's registry, lines are also literally drawn. Under the Michigan law, offenders cannot live, work, or "loiter" within 1,000 feet of a school zone. For offenders in Grand Rapids, that is a severe restriction:

Based on that restriction, and a number of other factors, the Sixth Circuit held that the Michigan SORA law imposes punishment and is subject to the Ex Post Facto clause. The important factors are summarized by the court:
"A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information."
Obviously this is a Michigan registry and a Sixth Circuit case. It is still an important one because hopefully lines are being drawn as sex offender registries get more and more onerous on our clients. Also important in this decision is that an Ex Post Challenge was effective. While it has seemed like these challenges were dying on the vine, maybe there is still some room left.

Also important is that the Sixth Circuit put weight in the research that shows that maybe these registries aren't as effective as we thought/hoped they would be. It appears from the opinion that the government was not very effective at proving that they were. Good to see a court looking into the evidence to support such a registry.

Sunday, August 28, 2016

Assault is an element of EVERY § 111(a)(1) offense

Yes, it's true that the statute is titled "Assaulting, resisting, or impeding certain officers or employees." But every conviction under 18 U.S.C. § 111(a)(1) has an essential element of assault. So said the Tenth Circuit last week in United States v. Wolfname, finding that a district court's failure to instruct on the assault element was plain error necessitating a reversal of the defendant's "resisting and interfering" conviction.

Draft your jury instructions accordingly.

Wednesday, August 24, 2016

"[I]t is anachronistic to use state residence as a justification . . . for reasonable suspicion."

Does driving a car with tags from Colorado (or California or DC or Michigan) make you a suspicious person? Is I-70 a "known drug corridor" that only suspicious people would use?

No, no, and stop saying that, says the Tenth Circuit to Kansas Highway Patrol Officers Richard Jimerson and Dax Lewis, in an opinion reversing the district court's grant of qualified immunity to the officers in a civil action against them:

"Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible."

"[T]hat Vasquez was driving on I-70 does not make his otherwise innocent conduct suspicious. I-70 is a major corridor between Colorado and the East Coast. It could equally be said that it is suspicious to not drive from Colorado to Maryland along I-70."

Sunday, August 21, 2016

What to expect when you're expecting a prison term

"On the path that American children travel to adulthood, two institutions oversee the journey. The first is the one we hear a lot about. College.

. . . [The second] institution is prison."

It’s back-to-school season, and we locals are feeling it here in Lawrence, Kansas. It’s generally a happy occasion for KU students, whether they’re freshmen excited about starting college, or return students reuniting with old friends and professors. Either way, they have little to fear. After all, KU offers a free, detailed orientation program.

These days, we’re not likely to send our kids off to college without orientation. And we shouldn't send our clients off to prison without it either.

U.S. Probation & Pretrial Services offers an orientation program four times a year to prepare clients in both Kansas and the Western District of Missouri to go to federal prison. The program is open to clients and their families (and other loved ones), as well as to lawyers. I attended the program this month, and I cannot stress enough how informative it is.

Among other things, you will learn (or be reminded of):
  • What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
  • How to self surrender;
  • What to take (and what not to take) to prison;
  • What programs are available in prison (educational, vocational, religious, mental health, medical);
  • What to expect with respect to visitation, phone calls, email, etc.; and
  • How federal prisons help prepare clients for release.
At the program I attended, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was puncutated by the fact that they were celebrating the recent purchase of their first home.

Mark your calendars: The next program will be held on Thursday, November 3, 2016, 3:00 p.m., at the Kansas City, Missouri, federal courthouse. If you and your client (or your client's family) cannot make it to Kansas City, you can participate via videolink from the federal courthouses in Wichita and Topeka.