Sunday, June 25, 2017

Trial Series: How to subpoena federal agents

At some point, you will need to subpoena a federal agent to testify at trial. Usually this will occur when: (1) a witness gives a statement to the agent but (2) the witness denies making the statement. You cannot impeach the witness with the agent’s written report (unless you can prove that the witness adopted it, which is rare) because the report is the agent’s statement — not the witness’s. To be able to prove that the witness said something different to the agent, you will have to call the agent to the witness stand. And to do that, you will need to subpoena that agent.

Subpoenaing a federal agent is more complicated than subpoenaing the usual witness. That is so because of a United States Supreme Court case from 1951, United States ex rel. Touhy v. Regan, which held that executive-department agencies could validly promulgate regulations that restrict their employees from testifying. 340 U.S. 462 (1951). Nearly every agency now has Touhy regulations scattered about the Code of Federal Regulations. If you do not comply with those regulations, the court will quash your subpoena.
The first step is to find which CFR applies, which turns on which agency the witness belongs to. Here are some of the more common agencies you might need testimony from, along with the corresponding CFRs that cover that agency:

Department of Homeland Security (including Immigration & Customs Enforcement)
6 C.F.R. §§ 5.42 — 5.49
Department of Justice (including Federal Bureau of Investigation & Drug Enforcement Administration)
28 C.F.R. §§ 16.21 — 16.29

These regulations spell out who to serve. For instance, for a DHS agent, you must serve your demand on its Office of General Counsel. 6 C.F.R. § 5.43(a). For a DOJ agent, you serve the demand on the Assistant United States Attorney handling the case. 28 C.F.R. § 16.23(c).
These regulations also set out how to make your demand. For a DHS agent, you must specifically put forth, in writing, the nature and relevance of the information you seek. 6 C.F.R. § 5.45(a). For a DOJ agent, on the other hand, you must supply a written statement, by affidavit if feasible, setting forth summary of testimony sought. 28 C.F.R. § 16.23(c).

Finally, these regulations set out what the agency will consider in deciding whether to permit the agent to testify or produce documents. For DHS agents, the factors are contained in 6 C.F.R. § 5.48, and for DOJ agents they lie in 28 C.F.R. § 16.26.

Practically speaking, you should:

1. At least 45 days before trial, obtain a trial subpoena under Rule 17(b) for any agent that you might need to impeach a witness.

2. Draft a letter that contains: (a) the request for testimony or documents that complies with the applicable regulation (i.e. affidavit, etc.); (b) an argument as to why the agency should allow the testimony or release the documents that corresponds to the factors the agency is supposed to consider in making its decision; and (c) a deadline for their response.

3. Serve the subpoena and the letter on the appropriate official.

What happens if the agency denies your request? Or never responds?
Stay tuned . . . .
----Branden Bell

Tuesday, June 20, 2017

Trial Series: Dying declarations

In which we assume that dying is stressful.

The rationale for the dying declaration hearsay exception is that “no person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips.” That notion seems problematic in a nation where 1 in 4 citizens are atheists, presumably unconcerned with the impact of a falsehood on their chances in the afterlife.
But the more profound problem with presuming the reliability of dying declarations is how it ignores what happens to a brain under stress. To talk about that, we have to talk about the physiology of the brain. Let’s start with the amygdala.
Image result for amygdalaSo, hi! Thanks for staying. Anyway, the amygdala. It’s the Chaos Muppet of the brain (think Cookie Monster). The amygdala evaluates incoming stimuli for emotive content, tells us when we need to freak out, and helps us freak out by flooding the brain with the stress hormone cortisol.
 Acting as a governor on the amygdala is the prefrontal cortex. The prefrontal cortex is the executive center of our brain, regulating decision-making and judgment (think Kermit). The prefrontal cortex is designed to stop the amygdala from overreacting to every damned thing, balancing our emotional responses. But the prefrontal cortex, awash in cortisol, can’t control the amygdala in highly stressful situations. When the prefrontal cortex gets overwhelmed by cortisol, “quite simply, we lose it.
Dying brains don’t carefully calculate the downside of displeasing their Maker with a falsehood. The precipice of death is not a placid, reflective place where we carefully calibrate the truth of our words. Instead, awash in stress hormones, a dying brain is likely to cloud objective truth.

While dying declarations may be admissible as hearsay, they aren’t probative. Argue the science in support of a Rule 403 objection.

---Kirk Redmond

Sunday, June 18, 2017

Where's Waldo's cell phone?

More specifically, what must the government do before it can track Waldo's cell phone? The United States Supreme Court will finally answer that question next term, in Carpenter v. United States. Here is the SCOTUSblog page if you want to follow along. The question presented is: 
Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment. 
With Mr. Carpenter represented by the ACLU, and amicus briefs (so far) by the Electronic Frontier Foundation and the Cato Institute, the case should be well lawyered.

By the way (as those of you who keep up with our Issues Pending summaries know), the Tenth Circuit has a similar claim pending in United States v. Thompson, No. 15-3313 (argued May 10, 2017).

Be sure to preserve this claim if you've got a case involving the warrantless search and seizure of these kinds of cell-phone records.

Thursday, June 15, 2017

Let's talk about forensic science: week one

Your friendly blog post writer was fortunate enough to attend the National Forensic College last week at Cardozo Law school in New York. The college provided a six day intense focus on forensic science issues ranging from DNA to digital evidence. So the Thursday spot on the blog will be used to share a few of the very helpful tips that were passed on during this program.

We start with a topic that has been mentioned before, but deserves greater discussion - the PCAST report. As we discussed back in October, the PCAST report was prepared by leading scientists and engineers for the purpose of answering questions created by the 2009 National Resource Counsel report on strengthening forensic science in the United States. As we know now, this administration is not interested in answering those questions or strengthening forensic science.

Everyone should at least read the executive summary of the report. It is 20 pages and does a great job summarizing their findings. For example do you have a case where a bitemark is used as evidence? PCAST is not impressed: "Bitemark analysis is a subjective method. Current protocols do not provide well-defined standards concerning the identification of features or the degree of similarity that must be identified to support a reliable conclusion that the mark could have or could not have been created by the dentition in question."

This week starts with an easy but important concept from those early pages - the difference between foundational validity and validity as applied. Foundational validity establishes that the scientific method used is repeatable, reproducible, and accurate. That means that a person performing the test can perform the test the same way multiple times and get the same result. It also means that a different person can do the same test the same way and get the same result. Finally, it means that result is accurate. If all three are met, then a certain method can, in principle, be reliable. This corresponds with the legal requirement in Rule 702(c) of using "reliable principles and methods."

Validity as applied means that the method has been reliably performed in practice. This means that a foundationally valid method can still be inadmissible if the person performing the test does not properly implement an otherwise reliable method. This corresponds with Rule 702(d) while requires an expert to "reliably apply the principles and methods to the facts of the case."

Keep these concepts in mind as we discuss some tips from specific areas of forensic science in the next few weeks.

Tuesday, June 13, 2017

Innocent until shackled

When you think of the term innocent, what image comes to mind? If you are like me, you think babies or puppies (maybe kittens if you’re a cat person). The thing I have never associated with that word was full body shackles. In a court system that stands on the phrase “Innocent until Proven Guilty,” one would assume that innocent people should not be brought to court in full body shackles. The Court of Appeals for the Ninth Circuit has just taken on this problem in United States v. Sanchez-Gomez.

Four defendants petitioned for writs of mandamus to challenge a district wide policy for shackling all pretrial detainees without any form of individual determinations. Although they did not get the mandamus relief (mainly because the policy was not in effect at the time), the Court of Appeals did slap the district court’s hands a bit. 
Image result for chained bearThe policy in question came about as a recommendation from the US Marshals Service. The district court deferred to the Marshals’ recommendation, and determined that all pretrial detainees would appear in shackles. The en banc court applied Gerstein v. Pugh, 420 U.S. 103 (1975), to exercise its supervisory power. Even though all of the defendants’ cases had ended and the policy was no longer in effect, the en banc court seemed to be on a mission to send a message. “A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.”

The court’s bottom-line holding:
We now clarify the scope of the right and hold that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without. Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least-restrictive means for maintaining security and order in the courtroom. Courts cannot delegate this constitutional question to those who provide security, such as the U.S. Marshals service. Nor can courts institute routine shackling policies reflecting a presumption that shackles are necessary in every case.
Interestingly enough, this decision not only had a few dissenters but also creates a circuit split. The dissent’s main problem was the lack of authority to make this decision. They argued that the case was moot and did not qualify for an exception. All in all, they thought the majority had overstepped its boundaries.
Given the new circuit split, maybe the Supreme Court will take up this cause and send a message to the country that shackles taint the appearance of innocence.

---Contributed by Doretta Goolsby, UMKC Law 2018

Sunday, June 11, 2017

Not a Crime of Violence: KS Dangerous Weapon Agg Robb

Committing a robbery with a dangerous weapon; it sure sounds like a crime of violence. But not to Jeff Griffith, a Wichita CJA panel lawyer. Last Friday, Jeff persuaded Judge Melgren that robbing someone in Kansas while possessing a deadly weapon was not a crime of violence. And he was right. 

Jeff asked the Court to follow United States v. Parnell, where the Ninth Circuit decided that Massachusetts armed robbery is not a violent felony. Why? Because in Massachusetts, robbery can be committed by minimal, non-violent force. And the “armed robbery” component of the statute? Well, in Massachusetts, the armed robbery statute does not require a weapon be used or displayed, or even that the victim be aware of it. It is enough that the robber have a knife in his back pocket, which does not convey a threat of force to the victim.

And you know what? Kansas aggravated robbery works the same way. Just like Massachusetts armed robbery, Kansas aggravated robbery requires only that the robber be "armed with" a dangerous weapon, not that he use it or that the victim be aware of its presence. We know that Kansas robbery is not a crime of violence, and we know that possessing a dangerous weapon is not a crime of violence. (Scroll down to USSG § 4B1.2, Application Note 1.) Adding two things that aren’t crimes of violence together does not produce a crime of violence.

The case is United States v. Edward Walker, D.Kan. 16-cr-10015-EFM, D.E. 47. We’ll send around a pdf of Judge Melgren’s order tomorrow. Congratulations, Jeff.


Thursday, June 8, 2017

We get by with a little help from our friends

It's hard out there for a public defender. Between defending our clients and defending our work ("How can you represent those people?"), sometimes it feels like we're always, well, on the defensive.

And so we are grateful when someone takes time out to recognize us and cheer us on. We at the Kansas Federal Public Defender Office have been lucky to receive two particularly supportive and inspiring visitors to our office this week: veteran trial lawyer and defender trainer Anthony Natale from the Miami, Florida Federal Public Defender Office, and Gideon's Promise* founder Jonathan Rapping.

Thank you, Tony and Jonathan!

*Gideon's Promise trains and supports public defenders. You can find links to many of Jonathan's articles about public defending and criminal justice here.