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:

Monday, September 8, 2014

Marihuana Equivalency Spreadsheet

We have added a spreadsheet to calculate marihuana equivalents from USSG 2D1.1, Application Note 8(B) for cases in involving multiple controlled substances.

Marihuana Equivalency spreadsheet can be found here

Sunday, September 7, 2014

"Race and Punishment"

The Sentencing Project has a new report, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies. The study shows that whites are more punitive than minorities and tend, in substantial proportion, to associate blacks and Latinos with criminality. Much of this bias traced to misinformation, implicit bias, and slanted media coverage. Regardless of the reason, this bias has translated into overly punitive laws and actually undermines public safety. 

This study is rich with resources and citations to other material, including sharp statistical data,   
Punishment in the United States is both severe and selective. With the world's highest incarceration rate and one in none prisoners serving life sentences . . . Nearly 60% of middle-aged African American men without a high school degree have served time in prison.
Recognizing that the criminal justice system is at a critical juncture, this carefully documented study offers concrete proposals to mitigate racially biased punitive sanctions. One measure gaining traction is "Ban the Box":  "Twelve states and sixty cities and counties now “Ban the Box” in public sector hiring – removing the question about conviction history from the initial job application and delaying background checks until later in the hiring process."

For criminal defense lawyers, a study of mock juries showed that increasing the salience of race, rather than ignoring it, reduced bias in outcomes. 

The study also suggests taking Harvard's Implicit Association Test

Monday, September 1, 2014

Overview of Federal Criminal Cases

For the numbers wonks, the US Sentencing Commission just published an overview of federal criminal cases for the fiscal year 2013. This report breaks down the types of cases, reviews offender characteristics, and classifies other data for study. 

Some highlights,

  • Immigration and drug offenses each accounted for just over 31% of federal criminal prosecutions. Weapons offenses were a distant third at about 10%.
  • The number of immigration cases has increased by 58.9 % over the past decade.
  • 51.5 % of all federal offenders were Hispanic, while 23.8 %were White and 20.6 % were Black.
  • Almost 97% pleaded guilty rather than proceeding to trial.
  • Of those 97%, over 46% received below-guideline sentences.
Find the report here.

Sunday, August 24, 2014

Writing and Reading

This post is a book recommendation. I am going to tell you about the book before I reveal the title; otherwise some of you would stop reading at this point. But you should read on. This is a very good book, and important to what we do. 

Lawyers write. We write for an audience. We want that audience to understand what we write. The easier it is to read, the more likely the audience will understand. Writing well is not only about substance, but about presentation.

Presentation is more than just font or formatting. To be an effective writer, we must pay attention to typography. Typography is "for the benefit of the reader, not the writer." 
Typography can optimize [our writing]. All writing necessarily involves typography. And good writing is part of good lawyering. So good typography is too. If you ignore typography, you are ignoring an opportunity to improve both your writing and your advocacy.
That quote is from Typography for Lawyers: Essential Tools for Polished & Persuasive Documents, by Matthew Butterick. Butterick is an attorney and has a degree in visual arts from Harvard. He also has this website.

This book is easy to read (because the typography is so good, no doubt). Butterick explains why there is only one space between sentences instead of two. And do not underline in a printed document, "[e]ver. It's ugly and makes the text harder to read." Sample documents are included. 

If you aren't sold on it yet, read the forward by Bryan Garner.   

Sunday, August 10, 2014


[re-cap of Kirk's RDAP blog, January 2014]

"Am I eligible for RDAP?" is a question often asked by our clients, and there is a lot of misinformation out there. All inmates at every institution have drug abuse counseling available, either as an educational or non-residential program. But those don't earn any time off. BOP offers a residential drug treatment program that, if successfully completed, can reduce the sentence by up to one year.

Here is a quick primer:

Make sure that any substance abuse problem is documented in the PSR  (this is usually why we let our clients talk about it in the PSR interview). A drug evaluation that confirms a substance abuse disorder is helpful, and can be included in the PSR or submitted directly to BOP.

Ask the sentencing court to make a recommendation to BOP for RDAP.

The program lasts for a minimum of 500 hours over 12 to 15 months.

Remaining sentence length determines time off -- 30 months or less may earn up to six months off; 31 to 36 months, nine months; and 37 or more, a maximum of 12 months.

Those ineligible include,

  • ICE detainees;
  • those with a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, agg assault, arson, kidnapping, or sex offenses involving minors;
  • a current offense that has an element of actual, attempted, or threatened physical force against a person or property of another;
  • a current offense that involved carrying or use of a firearm or explosive [note: this includes the two-level gun enhancement for drug offenses];
  • conspiracy involving the prior two factors;
  • a current offense that presents a serious risk of physical force against a person or property;
  • a current offense involving sexual abuse of minors; or
  • anyone who previously received early release.

Participants are about 15% less likely to recidivate than non-participants.

Co-occurring disorder programs, also known as dual disorder treatment, treats co-existing substance abuse disorders and either mental health disorders or medical problems. Only two facilities offer this specialized treatment,  FMC at Carswell, Texas (women) and FMC at Lexington, Kentucky (men). The same early release eligibility is available.

The Challenge Program is for high risk/security clients who have substance abuse and major mental health disorders. No early release, but successful participants may lower their security points enough to transfer to medium security and apply for the RDAP program (and then maybe earn early release).

The BOP Program Statement for Early Release Procedures is here.

A list of facilities that offer RDAP is here.

More information is available at BOP's 2012 Report to the Judiciary Committee on substance abuse programs and the February 2012 GAO Report reviewing BOP programs that may allow a  sentence reduction (it is a rather short report).