Monday, October 20, 2014

From Dan Hansmeier, AFPD in the KCK office, more cert.grant updates: 

Rodriguez v. United States (No. 13-9972)

Whether an officer may extend an already completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification?
And most of us thought that it would be frivolous to challenge a dog sniff of an automobile. Apparently not. An interesting issue raised by the Nebraska FPD. Cert. was granted just this month. 

Ohio v. Clark (No. 13-1352)

(1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause. 

It is rumored that Ohio will change its motto to The Confrontation Clause State. Everyone should read the lower court opinion in this case. 

Mellouili v. Holder (13-1034)

Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act?

If you just understood what you read, you are doing better than me. But the interesting thing about this case is that it involves a prior Kansas conviction. And, when we get an opinion, there may be some discussion about everyone's favorite tool of statutory interpretation: the categorical approach. Here is the underlying opinion.

Wednesday, October 15, 2014

Cert Grant: Johnson v. United States

Continuing with the series on cert grants for the October 2014 term, Johnson v. United States presents a short but complex issue: "Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act."

This is another in a long line of cases struggling to define violent crimes. ACCA requires three prior, separate and distinct (see note below) convictions for certain enumerated offenses -- burglary, arson, extortion, or use explosives -- or a felony "that presents a serious potential risk of injury to another," also known as the residual clause. The question is whether possession of a short-barreled shotgun falls within this residual clause.  

Begay v. US, which held that DUI is not a violent crime, directs that crimes falling within the residual clause must be roughly similar to the enumerated crimes, both in kind and in degree of risk pose. The crime should be "purposeful,  violent and aggressive conduct." The Government and Amicus present empirical data about the dangerous nature of crimes committed with short-barrreled shotguns, but Johnson counters with the elements of the crime -- this is mere possession, not criminal use.  

Scheduled for argument November 5. The Minnesota FPD is counsel for Mr. Johnson.

Note: the Tenth Circuit law on "separate and distinct" crimes is particularly bad. In  US v. Tisdale, the defendant's prior convictions, used to support ACCA, included three burglary convictions. He broke into a mall one evening, and successively burglarized two businesses and a post office. Same night, one case with three counts, sentenced together, but for ACCA purposes, these were three "separate and distinct" convictions that qualified Tisdale for a 15-year mandatory minimum sentence.

Wednesday, October 8, 2014

Cert Grants: Juror Misconduct

Continuing with the series on cases pending before SCOTUS this term, the question is whether a juror can testify about another juror's misconduct in deliberations that revealed dishonesty during voir dire. 

Sturgis Motorcycle Rally is where this case begins. A truck clipped Petitioner as he rode his motorcycle, resulting in amputation of his leg. He sued. During voir dire, one juror (who later became the foreperson) failed to reveal that her daughter had been at fault in a fatal vehicle accident. She had several opportunities to disclose this; other potential jurors related similar incidents and were excused.

Not until deliberations did this juror relay her experience and that, had they been sued, it would have "ruined her life." The jury returned a verdict in favor of the respondent. Shortly after, another juror contacted plaintiff counsel and revealed what had happened. After getting an affidavit, the motorcyclist's attorney moved for a new trial based on juror dishonesty during voir dire. That was denied.

Here is the issue: FRE 606(b) will not allow "inquiry into the validity of the verdict" coming from jury deliberations. Those are sacrosanct. But a party is entitled to a new trial where a juror failed to honestly answer a material question during voir dire, and an honest answer would have provided a valid for-cause challenge. In this instance, though, the evidence of juror dishonesty in voir dire came to light only during jury deliberations. Thus, the question, 
Whether Federal Rule of Evidence 606(b) permits a
party moving for a new trial based on juror dishonesty
during voir dire to introduce juror testimony about
statements made during deliberations that tend to show
the alleged dishonesty. 
Rule 606(b) does have an exception for an outside influence that was improperly brought to bear on a juror. The foreperson's confession not only revealed that she was dishonest during voir dire, but may have improperly influenced the jury. Both the district court and the appellate court disallowed the affidavit based on FRE 606(b).

The case is Warger v. Shauers. Argument is slated for October 8. 

Thursday, October 2, 2014

And, again, Mr. Holder on 851 policy

Another directive was handed down from outgoing AG Eric Holder on September 24, entitled Guidance Regarding Section 851 Enhancements in Plea Negotiations.  Essentially, it says one more time that 851 enhancements are not to be used in plea negotiations to force a guilty plea. The highlights from the one-page memo,

  • that in all cases, prosecutors must individually evaluate the unique facts and circumstances and select charges and seek sentences that are fair and proportional based upon this individualized assessment. 
  • § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty.
  • Whether a defendant is pleading guilty is not one of the    factors enu­merated in the 851 charging policy.  
  • practice of routinely prem­ising the decision to file an § 85 1  enhancement solely on whether a defendant is entering a guilty plea . . . is inappropriate and inconsistent with the spirit of the  policy.

Here is the "I meant what I said the first time" memo. And here is what he said the first time, the August 12, 2013, memo. 

Tuesday, September 23, 2014

Mr. Holder

For the first time in 40 years, the federal prison population has dropped -- 4,800 fewer inmates than last year. And BOP predicts a drop of 2,000 next year and 10,000 the year following. Right now, the population stands at about 215,000.

Eric Holder, the Attorney General, has made it a priority to reduce overly-long sentences and unjustifiably high incarceration. He attributes this decrease to,
. . . . efforts to reduce long mandatory minimum sentences for nonviolent offenders. It also comes four years after the passage of the Fair Sentencing Act, which shrunk the disparity in sentences for crack and powder cocaine . . . .
 from the Wall Street Journal.

This coincides with a drop in the overall crime rate. The correlation, or disconnect,  between the drop in crime rate and decease in prison population is an interesting one, and can add to the ever-growing arsenal against the general deterrence theory. 

Saturday, September 20, 2014

Cert Grant Series: Ignorance of the Law

SCOTUS convenes the 2014 term on October 6. This is a good time for a blog series on cert grants in criminal cases.

The first, set for argument on opening day, is Heien v. North Carolina. The issue is short:
Whether a police officer's mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
This arises from a traffic stop where the law enforcement officer misinterpreted the traffic code. The car had only one working brake light, but the traffic code only required one. The LEO thought that the law required all brake lights to work. He stopped the car, and what followed was the usual police two-step, leading to a consent search and a bag of white stuff.

Mistake of Fact or Law? The distinction between mistake of fact and mistake of law can be determinative. The former is often forgiven if it was reasonable; but a mistake of law, according to a majority of courts, cannot be the basis for reasonable suspicion or probable cause. A stop based on a mistake of law offends the Fourth Amendment.

But the majority of the North Carolina Supreme Court, which Heien seeks to reverse, applied the more lenient reasonableness standard to this mistake of law, treating it the same as a mistake of fact. The Court decided that the officer's mistake of law was a reasonable one, thus it could serve as reasonable suspicion to justify the stop. The reasonableness, according to the court, excepted it from a Fourth Amendment rights violation. This holding places North Carolina in the minority.

The Tenth Circuit is in the majority. From the 2013 opinion in United States v. Nicholson, "Although an officer’s mistake of fact can still justify a probable cause or reasonable suspicion determination for a traffic stop, an officer’s mistake of law cannot. Failure to understand the law by the very person charged with enforcing it is not objectively reasonable.”  See, also, United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005). Said another way, the N.C. Supreme Court dissenters observed the "fundamental unfairness of holding citizens to the traditional rule that ignorance of the law is no excuse while allowing those entrusted to enforce the law to be ignorant of it.” 

Rights vs. Remedy. Reasonableness, or good faith, should not factor into the rights analysis; it belongs only to the remedial question. That is, if the stop based on mistake of law violated Heien's rights, then what was the relevance of the officer's mistake of law to the violation? The government tries to argue a reasonable-but-erroneous exception to the Fourth Amendment. Heien argues that reasonableness comes into play only after a rights violation is established and the court must fashion a remedy.

And this is an unworkable standard. Every motorist, including innocent motorists, would be subject to traffic stops based on police confusion over imprecise traffic codes. In his brief, Heien concluded, "It is the responsibility of law enforcement to learn and enforce those laws. The Fourth Amendment does not allow the police to reinterpret and broaden those laws according to officers’ own perceptions of what is necessary to protect public safety."

Jeffrey Fisher -- the Jeffrey Fisher who won  Blakely v. Washington and, just last term, Riley v. California --  is one of the counsel of record.

Petitioner's Brief here, and other information can be found here at SCOTUSblog.

Thursday, September 11, 2014

Challenging DNA

[Thanks to Tom Bartee for this post]

Now that forensic DNA has been used to putatively identify Aaron Kosminski as Jack the Ripper, this may be a good time to consider some of the possible problems with such evidence. We will likely be seeing more use of DNA from “touch” sources on guns or drug packaging, which raises the issue of “low copy number” DNA. I hope that this will help you recognize some issues arising from the forensice use of LCN DNA.

What is LCN?

LCN involves a small amount of DNA template available for PCR amplification, typically said to less than 100 picograms (PG), although some analysts consider the cutoff to be at 200 pg. A picogram is one-trillionth of a gram. Because a typical human cell weighs about 3 pg, LCN analysis may involve the DNA from just a few cells.

When is LCN an issue?

LCN is common with “touch” DNA, i.e., DNA obtained from cells left in fingerprint residues, saliva, sweat, or sebum. Such small amounts of DNA may be left on an item through “secondary transfer,” when DNA from one person is first transferred to another person (like during a handshake) or to an item, and that DNA is in turn transferred to the evidence. LCN is also frequently a concern in mixed samples with a minor contributor. Even if the total amount of DNA amplified is 1 ng, the minor contributor profile in a mixed sample with one part minor contributor to nine parts major contributor could be LCN. The crime lab analyst may fail to understand that it is the amount of DNA of each contributor that is important, rather than the gross amount of DNA in a mixed sample.

How will I know whether LCN is an issue?

You cannot assume that the lab report will disclose that LCN DNA has been analyzed. In fact, some labs will engage in LCN analysis but deny that it is actually LCN. You will probably need an expert to know with certainty, but LCN is more commonly encountered in cases involving mixtures, partial profiles, or unusually high random match probabilities (1 in 10 thousand rather than 1 in 10 trillion).

How do labs react to LCN?

Labs may increase the number of amplification cycles, from the standard 28 cycles to say 34, radically increasing the amount of DNA available for testing, but also creating dangers discussed below. Rather than increasing cycles, labs can reduce the volume of the PCR product, thereby increasing the concentration of DNA in it, or they may added more amplified product than normally used.

What are the dangers of LCN analysis?

The immediate problems associated with LCN arise from the fact that the small amounts of template DNA may be below the “stochastic threshold,” i.e., the point at which random factors may influence the testing more than does DNA from the sample. The PCR technique uses a series of PCR cycles to amplify a tiny amount of DNA, so any random effects present at the beginning of the process will also be amplified. Resulting “stochastic effects” may include:

“allele drop-in,” in which alleles not present in the sample DNA appears in the amplified DNA from a source of contamination – with such a small amount of sample DNA present, it may be overwhelmed in the amplification process extraneous DNA (from the lab or from innocent third parties)

“heterozygote peak imbalance” resulting from the preferential amplification of one of the two alleles at a locus, resulting in peak height imbalance or even allelic drop-out, in which one of the alleles fails to amplify

“stutter peaks,” which are an artifact of the PCR amplification process, may become larger than are normal with high copy number DNA, resulting in the analyst calling an allele that is absent from the crime scene sample DNA
Another problem associated with LCN analysis is consumptive testing, i.e., not leaving DNA for independent retesting.

What precautions should labs take when handling LCN?

LCN DNA from an evidence sample may be overwhelmed by DNA from contamination. Labs should insure sterility in the lab, requiring lab personnel to wear masks, gloves, and gowns, and devices and lab benches should be sterilized with bleach. The profiles obtained from LCN testing should be compared to the staff elimination database.

What should I do if I have a LCN case?

Get an expert, of course. You may have a good Daubert challenge to the evidence, as the lab’s validation studies and the lab equipment user’s manuals may not support the procedure used by the lab in handling the analysis, e.g., if the lab increased the number of PCR cycles.

A good DNA resource for defense lawyers is DNA for the Defense Bar, published by the DOJ’s National Institute of Justice (June 2012), available on-line at: