Thursday, October 1, 2015


Three months ago, SCOTUS ruled that Oklahoma's method of execution, a questionably ineffective drug cocktail that did not cause the person to become insensate to pain before the fatal drug was administered, did not violate the Eighth Amendment. That was Glossip v. Gross.

Back to death row for Richard Glossip, who was scheduled to be executed tonight. But he was granted a reprieve because . . . Oklahoma had ordered the wrong drugs.

Dissenting in Glossip was Justice Breyer, who eloquently dissected the pro-death arguments. He then denounced the death penalty as unconstitutional.

This term, the Court has granted cert in five capital cases. The Carr and Gleason cases are from Kansas. Hurst v. Florida is also on the docket, and the wide-spread belief is that the deeply-divided Court will declare the Florida scheme unconstitutional.    

Monday, September 28, 2015

Remaining silent

It happens -- a client asks for a new lawyer, says things to the court that perhaps make the lawyer look bad. Like an incompetent, uncaring, inattentive lawyer. And the lawyer may react defensively, denying the accusations even at the cost of the client's credibility. After all, that seems unfair to let the accusations stand without a public answer.

But that response may, even setting aside the ethical implications, render counsel constitutionally ineffective. Adverse positions between the attorney and client may present an actual conflict of interest that allows a presumption of prejudice.

Lopez v. Scully, a Second Circuit case, lays out the conflict. There, Mr. Lopez alleged that counsel had coerced him to plead guilty. “At that point, the attorney had an actual conflict of interest: to argue in favor of his client's motion would require admitting serious ethical violations and possibly subject him to liability for malpractice; on the other hand, any contention by counsel that defendant's allegations were not true would contradict his client. As it happened, the attorney put his own interests ahead of his client's by denying the truth of Lopez's allegations and thereby attacking his own client's credibility.” The Second Circuit presumed prejudice because there was an actual conflict that arose when counsel "undermined his client's credibility moments earlier by denying the truth of the allegations in the pro se motion."

And so concluded the Lopez court: “Given this abdication of the attorney's role as advocate when the judge had the discretion to impose a lower sentence and arguable grounds for leniency existed, we believe that Lopez has shown that an actual conflict of interest adversely affected his attorney's performance in violation of his Sixth Amendment right to effective assistance of counsel.

The Tenth Circuit came to a similar conclusion in US v. Collins, and the Seventh Circuit did so in US v. Morris -- "Morris has shown that an actual conflict of interest . . . [his attorney] would seem to have a self-interest in protecting himself from a malpractice claim. However, Morris's argument was predicated on [the lawyer's] purportedly false advice . . . . In situations such as Morris's, courts have presumed prejudice.

The ethical implications are also damning if not handled carefully. But that's for another post.

Tuesday, September 22, 2015

Brooks 2.0

A Kansas presumptive probation sentence might not qualify as a federal felony, regardless of whether the underlying state prison sentence exceeded 12 months. A federal felony is generally defined as a conviction punishable by a term of imprisonment exceeding one year. A presumptive probation sentence is not, absent a dispositional departure, subject to imprisonment for any term.

Kansas sentences are controlled exclusively by the sentencing grid. Unlike the federal statutory ranges that fence the advisory guidelines, the state grids are the statutory range in Kansas. If the projected sentence falls within a presumptive probation box – as opposed to a presumptive prison or “border box” where the court can go either way – the judge cannot impose a prison sentence (caveat below). If the state court could not have imposed a prison sentence, then the conviction is not one that carries a “term of imprisonment exceeding one year.”

Key question: What options did the state court judge have at the moment the defendant, with her recidivist record, appeared for sentencing? If prison was not an option, then it was not a conviction punishable by a term of imprisonment exceeding one year. 

Not questions: What sentence was actually imposed? What sentence could another person could have received? What could the sentence theoretically be if the prosecution had proceeded differently?

Brooks 2.0: The reasoning is the same as in US v. Brooks, decided in 2014. There, the Tenth Circuit said that a Kansas sentence of imprisonment that could not have exceeded 12 months was not a felony, as defined by federal law. “[I]n determining whether a state offense was punishable by a certain amount of imprisonment, the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received.” It follows from Brooks that when the defendant stands before the court in a presumptive probation box, and a prison sentence cannot be imposed, it is not a conviction punishable by a term of imprisonment exceeding one year. 

Caveat: In a Brooks scenario, if the state prosecution actually sought a durational departure – that is, a sentence that exceeded the high number in the grid box – then that could have allowed the state court to sentence in excess of 12 months. In that event, the defendant would be back in federal-felony land. Here, the question is not a durational departure, but a dispositional departure. The state prosecution can, in some circumstances, pursue a dispositional departure, that is, a prison sentence rather than the presumptive probation that the grid calls for. But if those procedures were not followed, and the court only had discretion to impose a non-custodial sentence, it is not a conviction punishable by imprisonment. Other conditions, such as mandatory drug treatment, may complicate the argument, but it should still prevail.

Other examples of complications arise in US v. Romero-Leon, an unpublished decision from the Tenth Circuit that applied Brooks to a New Mexico prior conviction. There, the defendant was not subject to more than ten years imprisonment on a prior New Mexico drug conviction, thus the state conviction could not qualify as an ACCA predicate. The government raised several arguments about how, under the New Mexico system, things could have turned out differently. All were rejected. Remember, from Carachuri-Rosendo, the Supreme Court rejected federal back-peddling on state proceedings, “Were we to permit a federal immigration judge to apply his own recidivist enhancement after the fact . . . we would denigrate the independent judgment of state prosecutors to execute the laws of those sovereigns."

The Result: A presumptive probation sentence might not qualify as an element of a felon-in-possession charge or as an aggravated felony for illegal reentry purposes. It may not support a statutory sentence enhancement like ACCA or an 851 increase. It may not increase base offense levels (2K2.1) or trigger the career offender guideline (4B1.1).

It is extremely important to check and double-check your client’s criminal history. Presumptive probation covers a fair amount of landscape on the grids, both drug and non-drug.

Reminder: The District of Kansas Fall CLE (Oct 8 in Wichita, Oct 9 in Lawrence) is all about predicate offenses. A whole day of nothing but predicate offense fun. Well, almost a whole day. Because this is really important stuff, and not always that easy to unpack. See for details. The CLE and lunch are free.

Sunday, September 20, 2015

Inextricably Intertwined

FRE 404(b) evidentiary doctrine is a bit of a mess. Complicating that mess is the government's claim that evidence is “inextricably intertwined” with the offense charged. Here is a recent footnote from a Fourth Circuit decision:

At all events, the intrinsic/extrinsic inquiry has ventured far from where it began. See Milton Hirsch, “ This New–Born Babe an Infant Hercules”: The Doctrine of “Inextricably Intertwined” Evidence in Florida's Drug Wars, 25 Nova L.Rev. 279, 280 (2000) (“[U]ntil about the year 1980, no one thought that evidence of uncharged crimes could be rendered admissible by the simple expedient of describing it as ‘inextricably intertwined’ with 
evidence of the crime or crimes actually pleaded in the indictment.”). As pointed out by the D.C. Circuit, “it cannot be that all evidence tending to prove the crime is part of the crime. If that were so, Rule 404(b) would be a nullity.” United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000). Yet, by characterizing evidence as “intrinsic,” federal courts, including this one, have allowed prosecutors to introduce evidence of uncharged bad acts free from Rule 404(b)'s protections, including limiting jury instructions and advanced notice of the government's intent to introduce the evidence. Fortunately, some courts have begun to recognize the harm caused by granting federal prosecutors such unmitigated leeway. See United States v. Gorman, 613 F.3d 711, 719 (7th Cir.2010) (abandoning the “inextricable intertwinement doctrine” because it “has outlived its usefulness” and “become overused, vague, and quite unhelpful”); United States v. Green, 617 F.3d 233, 248 (3d Cir.2010)(“[T]he inextricably intertwined test is vague, overbroad, and prone to abuse, and we cannot ignore the danger it poses to the vitality of Rule 404(b).”); Bowie, 232 F.3d at 927(“[I]t is hard to see what function this [intrinsic/extrinsic] interpretation of Rule 404(b)performs.”); see also United States v. Irving, 665 F.3d 1184, 1215 (10th Cir.2011) (Hartz, J., concurring) (stating that “the intrinsic/extrinsic dichotomy serves no useful function and consumes unnecessary attorney and judicial time and effort,” and that “the distinction between intrinsic and extrinsic evidence is unclear and confusing, and can lead to substituting conclusions for analysis”).

At bottom, the inextricably intertwined precedent is
 underthought and terrifically vague. If you are gong to trial, keep this footnote in your quiver.

-- Kirk

Tuesday, September 15, 2015

Federal Expungement

No such thing, huh? Wrong. Judge Gleeson, federal district judge in Eastern District of New York, recently expunged a 13-year old health care fraud conviction, in Jane Doe v. US, 2015 WL 2452613 (EDNY May 21, 2015).
Expungement lies within the equitable discretion of the court. District courts in this and certain other circuits have ancillary jurisdiction over applications for orders expunging convictions. A request for expungement is usually is granted only in extreme circumstances after examining it individually on its merits to determine the proper balancing of the equities. Specifically, the government's need to maintain arrest records must be balanced against the harm that the records can cause citizens (internal footnotes and quotations omitted).
The Court was particularly compassionate toward Jane Doe and the harm suffered from the old conviction. She is Haitian immigrant and single mother solely responsible for the care of her children, but supporting them was extremely difficult because of her record. "Doe gets hired to fill home health aide and similar positions only to be fired when her employers learn through subsequent background checks about her conviction. Since the conviction was for health care fraud, it's hard to blame those employers for using the conviction as a proxy for Doe's unsuitability." This was not a light undertaking for the Court, which "reviewed every page of the extensive file that was created during her five years under probation supervision" and efforts to remain gainfully and legitimately employed.

This is a rich opinion, even beyond the rarity of the legal issue. The Court did not limit consideration to the facts of this case, but looked to broader issues of race and collateral consequences:
  A criminal record poses an especially high barrier to employment. Nearly seventy percent of U.S. employers now perform some form of criminal background check on prospective employees. A criminal record exacerbates the increased difficulty that older workers like Doe already face in the job market. Those difficulties are further exacerbated by race. Doe is black, and studies show that her race is even more of an impediment to her employment prospects than her conviction.
 Echoing the Supreme Court in Gall v. US, Judge Gleeson noted that Doe had been punished, "As the Supreme Court has made clear, while prison terms are qualitatively more severe, Doe's five-year term probation was serious punishment. Moreover, intermediate sanctions, like the ten-month period of home detention with electronic monitoring I imposed upon Doe, can inflict meaningful additional punishment without risking the loss of a defendant's children to foster care. Anyone who is not persuaded that home detention is real punishment need only review the section of Doe's probation file that is devoted to the home confinement condition."

Rejecting all of the Government's opposition, Does's expungement was granted. The remedy was broad:

1. The government's arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility,

2. Electronic copies of these records or documents and references to them be deleted from the government's databases, electronic filing systems, and public record.

3.Doe's real name is to be removed from any official index or public record.

4. The records are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation.

5. The government and any of its agents may not use these records for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose.

"Doe is one of 65 million Americans who have a criminal record and suffer the adverse consequences that result from such a record. Her case highlights the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully." Let's hope there is a fresh look, and that more courts, and perhaps even Congress, are willing to follow Judge Gleeson's lead.

Monday, September 7, 2015

Johnson and the Guidelines

Johnson v. U.S. invalidated the residual clause of the Armed Career Criminal Act, a statute, as unconstitutionally vague. The advisory Guidelines has a synonymous residual clause. The question after Johnson, or one of the questions, is whether the courts will treat the Guideline residual clause in the same way -- that it is too vague to be relied on to increase either offense levels or criminal history. This implicates career offenders, under section 4B1.2, and any guideline that relies on that residual clause to define crimes of violence.

Last week, the Tenth Circuit spoke to this issue, albeit in an unpublished decision. In U.S. v. Goodwin, the defendant was convicted of felon-in-possession and his guideline was figured under section 2K2.1. His prior conviction for first degree criminal trespass counted as a crime of violence, as defined by the residual clause of section 4B1.2(a)(2) -- the conviction involved "conduct that present[ed] a serious risk of physical injury to another."

Goodwin ultimately decided that the Guideline residual clause must fall under Johnson. Goodwin was remanded for resentencing, with instructions that the criminal trespass prior conviction was not to factor as a crime of violence.   

The Government "concede[d], in light of Johnson, that Mr. Goodwin’s criminal trespass conviction may no longer be deemed a crime of violence.” But because Goodwin had not objected at sentencing, the Government continued to press that the issue had been forfeited and was subject to plain error review. Goodwin did not, despite the Government concession or the intervening Supreme Court case in Johnson, file a reply brief. Still, the Court found that in light of the government concessions, "the stringency of the plain-error standard [was] of little moment," an incredibly welcome and forgiving posture on plain error, given other Tenth Circuit case law.

The fundamental legal question here is whether the constitutional vagueness doctrine applies to the advisory Guidelines. The Tenth, for the purposes of Goodwin, assumes it does without deciding the issue, as it has done in other cases (see fn. 2). It does note, however, a circuit split. But after Peugh v. US in 2012, the Supreme Court case that applied the constitutional doctrine of ex post facto to the Guidelines, it seems that the same should hold true here. So far, so good, at least in the Tenth Circuit.