Thursday, January 19, 2017

Thank you Obama

Jessie Traylor received a life sentence in 2010 based on his minor role in a conspiracy to distribute cocaine. The life sentence was mandatory because the government enhanced his minimum sentence based on two prior convictions for “felony drug offenses.”

On Tuesday, President Obama changed that. In one of his last acts in office, President Obama commuted Jessie Traylor’s life sentence to 20 years’ imprisonment. The story behind the clemency petition was told recently in the KC Star here and here. And it was also told in the LJWorld here.

In total, President Obama commuted the sentences of 1,715 inmates. That is the most ever for any president. Of those commutations, 568 inmates had a life sentence shortened. A few of the 1,715 commutations were the result of hard work from a number of  volunteers in the District of Kansas (possibly more on those later).
For Jessie Traylor, this work means that Jessie will not have to die in prison. He will get to see his family. He may even get to see his son play professional basketball. He will get another chance at life outside of prison.

Monday, January 16, 2017

The Geek Squad

Are employees of the Best Buy Geek Squad acting as FBI informants? That issue is at the center of United States v. Mark Albert Rittenmaier, (PACER account required), a child pornography prosecution out of the Central District of California.

In 2011 Dr. Mark Rettenmaier could not get his computer to boot up. He took it to the Geek Squad at a Mission Viejo Best Buy store. The Geek Squad informed Dr. Rettenmaier that his hard drive was faulty, and they would need to send it to their data recovery center in Brooks, Kentucky, if he wanted to keep the data on the hard drive. This is rather unremarkable occurrence that probably happens hundreds of times a day.

While a Geek Squad technician was working on the hard drive, he “found” a picture he suspected was child pornography. He then informed his supervisor, who contacted the FBI. Eventually, law enforcement in California obtained a search warrant for Dr. Rettenmaier’s residence, where child pornography was found. He was subsequently indicted in the Central District of California.
Federal law requires Best Buy to alert law enforcement when they find child pornography, so on its face these events don’t appear newsworthy. Through his counsel James Riddet, Dr. Rettenmaier claims the Best Buy technician and his supervisor were working as paid informants for the FBI:

Riddet claims records show "FBI and Best Buy made sure that during the period from 2007 to the present, there was always at least one supervisor who was an active informant." He also said, "The FBI appears to be able to access data at [Best Buy's main repair facility in Brooks, Kentucky] whenever they want." Calling the relationship between the agency and the Geek Squad relevant to pretrial motions, [District Court Judge Cormac] Carney approved Riddet’s request to question agents under oath.

R. Scott Moxley, Best Buy Geek Squad Informant Use Has FBI on Defense in Child-Porn Case, Orange County Register, January 4, 2016. Judge Carney found that eight Geek Squad employees have worked as FBI informants at the Brooks facility.

If true, this could mean the warrantless Geek Squad search was conducted by a government agent, not a private party. As followers of our blog know, absent an exception, a warrant is required when an otherwise private party acts as a government agent when conducting a search.

Rettenmaier also claimed that the FBI had Best Buy conduct subsequent warrantless searches on the hard drive at the Brooks facility before it sought a search warrant, and the government committed a Franks violation by failing to include in the warrant affidavit the initial image was found in unallocated space. In the Ninth Circuit, this is insufficient to support a federal prosecution. See United States v. Flyer, 633 F.3d 911 (9th Cir. 2011). The Tenth Circuit has not yet ruled this issue.
This case was first publicized in the Orange County Register, and later picked up by legal and tech blogs, as well as national publications. Additional coverage from the OC Weekly is available here and here. Search and seizure aficionados should keep their eye on this case.

Thanks to David Freund.

Thursday, January 12, 2017

Pending Supreme Court update: Nelson v. Colorado

On Tuesday, the Supreme Court held oral argument in Nelson v. Colorado, a case asking the question what happens when a defendant pays over money (fine, restitution, etc.) after a conviction BUT that conviction is later overturned on appeal.

You would think that since a person can never get time back - time in jail, time in prison, or time spent on probation - an exonerated person should at least be able to get money back after a conviction is overturned. Instead Colorado says sure, an exonerated defendant can get their money back. All you have to do is file a civil suit where a former defendant now has the burden to prove actual innocence by a clear and convincing evidence standard.

The defendants' claim is that the Fourteenth Amendment's prohibition - “nor shall any State deprive any person of life, liberty, or property, without due process of law” - prevents Colorado from keeping the money and requiring the exonerated person to prove innocence.

It sounds like the oral argument went well for the defendants. Justice Breyer, while trying to decide exactly what the problem was, stated: "there is something wrong with that." The other Justices pounced on counsel for Colorado with hypothetical scenarios involving increasing amounts of money. We shall see how the 8 person Court deals with this issue in the next few months.

Tuesday, January 10, 2017

The Fifth Amendment is not just a trial right

The Fifth Amendment guarantees that no person "shall be compelled in any criminal case to be a witness against himself."
Does it violate the Fifth Amendment when the government uses compelled statements in criminal proceedings other than trial? Yes it does, says the Tenth Circuit, in Vogt v. City of Hays, a case examining whether the use of a compelled statement in a Kansas preliminary hearing was actionable in a Section 1983 case. Here are the relevant holdings:
 "The Fifth Amendment is violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing."
"[W]e join the Second, Seventh, and Ninth Circuits, concluding that the right against self-incrimination is more than a trial right." 
"We agree . . . that the term 'criminal case' is broader than the term 'criminal prosecution.' Indeed, on its face, the term 'criminal case' appears to encompass all of the proceedings involved in a 'criminal prosecution.'" 
What does this mean in practice? 

It suggests that the government cannot use a compelled (coerced, involuntary, or un-Mirandized) statement in a grand-jury proceeding, at a detention hearing, or in any other proceeding in a criminal case.

Sunday, January 8, 2017

Kansas Legal Revitalization Conference Feb 1-3

Chief Judge Marten has put together an extraordinary conference slated for the first three days of February in Kansas City, Missouri. His committee has worked more than a year in planning this unique and far-ranging program. Judge Marten describes his vision for this conference:
The committee has recruited an exceptional faculty of lawyers and judges, as well as esteemed academicians, artists, business persons, and activists, not all of whom bring any legal training to the table, but each of whom has the ability to make us think about our work and how we approach it.
Here are just a few examples of the sessions and the speakers:

The Prosecution of the 16th Street Baptist Church Bombing, with U.S. Attorney Douglas Jones.

Saving Nelson Mandela, with Kenneth Broun.

Five Broader Questions that 'Making a Murderer' Poses, by Dean Strang.

Forging a More Humane Justice System: The Indispensable Role of Public Defenders in Transforming Our Criminal Justice Culture, Jonathan Rapping of Gideon's Promise.

Police & Community: Section 1983 Litigation, Civilian Oversight, & Implicit Bias, with Judge Nancy Gertner, Judge Julie A. Robinson, and Anne Levinson.

And Dahlia Lithwick from Slate and the Amicus podcast will speak about Law, Religion, and Morality.

Place: Country Club Plaza in Kansas City, Missouri.       
Dates: February 1-3, 2017.
Cost: Free

Register here. After January 10, registration for all three days is open to members of the Kansas federal bar. This is a free conference and priceless opportunity. Please direct any questions to Tim O'Brien, Clerk of the Court for the District of Kansas.

Thursday, January 5, 2017

The President’s Role in Advancing Criminal Justice Reform.

Seems like an important topic - especially with the upcoming change in president and party. Well if you want to read a pretty qualified take on the topic - might we suggest the title of the post - an article in the Harvard Law Review written by our current President (for a few weeks) Barack Obama.

This is not a little short article - Mr. Obama spent some time on this one. A few interesting topics:

(1) The president's role in advancing science in the criminal justice system - it is important to remember that under this President substantial effort has gone into research on some of the accepted forensic methods used in the field. The fruit of that research is yet to be seen. To be fair to Mr. Obama, he puts this in the "work unfinished" category. We blogged on this topic last year.

(2) For the Kansas state practitioners, Mr. Obama mentions the Justice Reinvestment Initiative which was behind many of the largely positive changes in Kansas and other states across the country. Although undertaken at the state level, those efforts were spurred with federal support.

(3) Also mentioned are some failed efforts, including a "Smarter Sentencing Act" that would have increased eligibility for safety valve, reduced mandatory minimums, and removed mandatory life imprisonment for drug crimes. Although supported by a wide range of politicians - from Cory Booker to Ted Cruz, the bill was not even brought to the house floor.

While the future of criminal justice in this country will likely be in significant flux in the next few years, it is interesting to look back on President Obama's take on criminal justice - from his touted changes to his work unfinished.

Wednesday, January 4, 2017

Arrest records may reflect demographics rather than criminality

So says the Third Circuit, reversing a high-end guideline sentence based on the defendant's bare arrest record.

Maximo Mateo-Medina, a Dominican who had long been common-law married to a U.S. citizen, pleaded guilty to reentry after removal. He had two prior convictions (for DUI and passport fraud), and six other arrests. Despite both parties’ recommendation of time served (about six months), the district court sentenced Mr. Mateo-Medina to a year and a day, citing his "extensive" arrest record.

The Third Circuit reversed. The Court agreed with Mr. Mateo-Medina that the district court’s reliance on a bare arrest record to impose a higher sentence violated due process and was plain error. The problem is that, absent further evidence, an arrest does not necessarily indicate criminality (presumption of innocence, anyone?). And it may well simply reflect demographics:

"[R]eliance on arrest records may also exacerbate sentencing disparities arising from economic, social and/or racial factors. For example, officers in affluent neighborhoods may be very reluctant to arrest someone for behavior that would readily cause an officer in the proverbial 'high crime' neighborhood to make an arrest. A record of a prior arrest may, therefore, be as suggestive of a defendant’s demographics as his/her potential for recidivism or his/her past criminality."

The Third Circuit first made this observation in United States v. Berry, 553 F.3d 273 (3d Cir. 2009). In Mateo-Medina, the Court explained that "[s]ince we wrote Berry, substantial research and commentary has only reinforced the regrettable circumstances that we emphasized in disallowing consideration of bare arrest records at sentencing." The Court cited recent studies from the Sentencing Project and criminologists.*

One resource not mentioned by the Third Circuit, but especially relevant to Kansas practitioners is the book Pulled Over, by KU professors Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel. Pulled Over (which was cited by Justice Sotomayor in her Utah v. Strieff dissent) details the results of the authors’ extensive survey of police stops in Wyandotte County. Those results are right in line with the studies discussed in Mateo-Medina: Police contacts may reflect demographics as much as (and sometimes more than) actual criminality.

The same holds true for juvenile police contacts, arrests, and adjudications. See Joshua Rovner, Policy Brief: Disproportionate Minority Contact in the Juvenile System, THE SENTENCING PROJECT (May 2014) (discussing Justice Department data showing that "juvenile justice systems are marked by disparate racial outcomes at every stage of the process").

These are all strong reasons to argue that the "criminal history" of a client within a target demographic may not necessarily reflect that client’s actual criminality (or it may not distinguish that client from other lawbreakers who are not daily targets of police), and that overreliance on the client's history may exacerbate sentencing disparities. This argument should be developed thoroughly in the district court with PSR objections, sentencing memoranda, and even expert testimony.

*The Tenth Circuit has cited Berry favorably, though it has also made it clear that this is an objection that must be well-developed in the district court to get much traction on appeal. See, e.g., United States v. Soto-Arreola, 486 Fed. Appx. 735 (10th Cir. 2012).