Wednesday, February 14, 2018

A (tiny) peek inside DOJ's discovery manual

Thanks to the National Association of Criminal Defense Lawyers, we can now read a tiny portion* of the Justice Department's Federal Criminal Discovery Blue Book, unsealed by a D.C. District Court. The court denied full disclosure of the 265-page manual on work-product grounds.

The disclosed portions (select excerpts from a mere 17 pages) don't tell us much, but they do restate important Giglio policies---though at times with more of an eye toward keeping defense lawyers from "improperly introduc[ing]" impeachment information than toward complying with constitutional mandates:

More importantly, the excerpted policies may provide additional fodder for claims that the government has failed in its discovery duties.

*Available through a link on NACDL's news release.

Sunday, February 11, 2018

Young adults: not so adult after all

The law may currently view 18-25-year-olds as adults, but we as their lawyers should not—no matter the charges, no matter the court, and no matter the issues that we are litigating.

Thanks to a number of landmark United States Supreme Court decisions handed down over the last decade-and-a-half, it is well established that the wealth of characteristics and circumstances attendant to a juvenile defendant’s age necessarily color a court’s suppression determinations and may, among other things, provide decisive mitigation for sentencing purposes.

Related imageThese decisions dating back to the Court’s 2005 decision in Roper v. Simmons (declaring the death penalty unconstitutional for offenders under the age of 18 at the time of the offense) are grounded in scientific and social-science research that focuses largely on the effects of the brain’s maturation process on youth under the age of 18. Specifically, the Court has recognized that there are fundamental differences between a juvenile and an adult brain. And those differences—accounting for a less developed character, immaturity, vulnerability and susceptibility to negative influences and outside pressures, transient rashness, and proclivity for risk, to name a few—not only diminish a juvenile's culpability but also enhance the prospect of reform as the years go by and neurological development occurs. This line of Supreme Court cases is therefore critical to any juvenile accused of committing a crime.

Importantly, though, the consensus in the scientific community today is that these diminished-culpability concepts also apply to those who are later in their adolescence and into their mid-twenties. On February 5, 2018, the American Bar Association’s House of Delegates recognized this significant consensus in the scientific community, passing a resolution calling on jurisdictions that still have capital punishment to prohibit its imposition against those who were 21 years of age or younger at the time of the offense. The ABA’s resolution notes that while neuroscience had played no part in Supreme Court decisions before 2000, "large-scale advances in the understanding of the human brain, have led to the current medical recognition that . . . profound neurodevelopmental growth continues even into a person’s mid to late twenties."

The ABA’s resolution provides a treasure trove of resources for anyone representing a youthful client. And so, too, does the August 2017 Order issued by Fayette County Circuit Judge Ernesto Scorsone declaring Kentucky’s death penalty statute unconstitutional on these grounds. (*Note: Judge Scorsone’s Order is currently percolating through Kentucky’s appellate courts.)

Youth matters; science and social science tells us so, as does common sense. 

Tuesday, February 6, 2018

ICE: Coming to a courthouse (and just about everywhere else) near you

Last month, ICE issued a new directive regarding enforcement actions in courthouses. The directive states that only targeted aliens will be subject to these actions, and that accompanying friends and families will---absent "special circumstances"---be left alone (though the directive warns that all decisions will be made on a "case-by-case basis"). Read the whole directive so you'll know what to expect in your municipal, state, and federal courthouses. And then read this ACLU resource for attorneys whose clients are approached by ICE in a courthouse.

In other ICE news, the agency recently contracted with Vigilant Solutions for access to that company's massive license-plate tracking database. In case you're wondering about the Fourth Amendment implications of such tracking, at least one district court says there are none. See United States v. Yang, No. 2:16-cr-231, 2018 WL 576827 (D. Nev. Jan. 25, 2018). Pay attention to the detailed factual findings in Yang and be prepared to distinguish them in your own Fourth Amendment attack on the use of this invasive tracking technology.

Hat tip 🎩 Laura Shaneyfelt.

Thursday, February 1, 2018

Why do innocent people plea guilty?

A recent opinion piece by public defender Jeffrey Stein does a nice job explaining why an innocent person would plea guilty:
You lay out options for your client. You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case. The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial. But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing.
And Stein explains what, for many of us is  a dreaded moment: when the judge asks if there is any reason why the court should not accept your client's offer to plea guilty:
You hesitate. You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence. My client faced an impossible choice and is just trying to avoid losing his life to prison.” But you stand by your client’s decision, which was made based on experiences and emotions only they can know. You reply: “No, your honor.” The marshals lead your shackled client to a cage behind the courtroom. And the judge moves on to the next case.



Tuesday, January 23, 2018

Tenth Circuit oral-argument audio now online

Are you partial to the dulcet tones of lawyers and judges whilst you wash your dishes, perform your ablutions, or take your daily exercise? Then you are in luck. The Tenth Circuit is now posting audio recordings of all of its oral arguments online. You can access the links from the Opinions tab on the Circuit's home page:


Not sure what to listen to? Check out Issues Pending or the Oral Argument Calendar links on our home page to find out which cases are about issues important to you and your clients.

Happy Listening!

Sunday, January 21, 2018

Court to government: Tend to your own knitting

The prosecution's effort to bump defense counsel from a federal case drew sharp criticism from the Ninth Circuit in the recent case of United States v. Wells, ___ F.3d ___  (No. 14-30146) (9th Cir. Dec. 19, 2017). In Wells, the government unsuccessfully opposed the appointment of a second defense counsel in a death-eligible case. After the government decided not to seek the death penalty, it asked the magistrate court to remove the second counsel. In response, the Federal Public Defender argued that both counsel should continue as both had established a relationship with the client and both had invested a great amount of time and effort in defending the case. Removing counsel would leave an already overworked FPD at a great disadvantage against the three-attorney prosecution team. The magistrate judge, though, sided with the prosecution, leaving the defendant with one attorney.


On appeal, the Circuit soundly chastised the government, making clear that the prosecution had no business interfering with the defendant’s representation. “The Government’s decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.”  The Court described the process appointing defense counsel under the Criminal Justice Act, and noted that the prosecution is generally precluded from participating in the determination of eligibility of counsel and related functions. This includes case budgets, requests for expert services, and expense reimbursement claims. “The Government’s exclusion from the administration of the CJA is a significant contributing factor to the fairness of our system and the CJA’s role in redressing the imbalance of power between an indigent defendant and the government.”


Although the magistrate judge’s decision to remove one of the defense attorneys did not rise to the level of reversible error, the Court advised the government to, in the future, “tend to its own knitting.”

-- Laura Shaneyfelt, CJA Resource Attorney
District of Kansas FPD

Wednesday, January 3, 2018

Third-party-notification condition unduly vague

Condition 12 of the standard conditions of supervised release adopted in Kansas (D. Kan. Standing Order No. 16-2, tracking USSG § 5D1.3(c)) provides:
If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.
Last month, the Sixth Circuit agreed with the pro se appellant in United States v. Sexton that this condition is unconstitutionally vague, joining the Seventh Circuit, which held in United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015), that this condition is "riddled with ambiguities." Exactly what sorts of risks must be disclosed to what third parties?

Object to this condition. Otherwise, your client may end up like Mr. Sexton, whose probation officer concluded that he was required to disclose all of his romantic liaisons, so that the officer could notify Sexton’s partners of his federal conviction. Not the best start to a relationship.

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