Let's talk about forensic science: week two

When we last talked about forensic science a couple of weeks ago, we introduced the concepts of foundational validity (corresponding with 702(c)) and validity as applied (corresponding with 702(d)). How does this play out in the example of fingerprint identification?

As you may know, almost every court to rule on the admissibility of fingerprint evidence (including the 10th Circuit) has allowed the evidence in. So the odds of winning a foundational challenge to fingerprint evidence is not great. But how about a validity as applied challenge? Such a claim would take some pressure off the district court ("judge, we are not saying fingerprint evidence is generally inadmissible, but that the work done in this case does not meet the standard of 702(d)").

How do you do that? Start by getting the examiners entire file, notes, etc. See what procedure was used. Odds on, most examiners use a subjective method. And that method has been criticized by a number of groups including the SWGFAST (Scientific Working Group on Friction Ridge Analysis, Study and Technology), and OSAC (Organization of Scientific Area Committee's for forensic science). So if the examiners opinion is simply based on "I compared the two and they matched" and lacks some objective criteria (regarding quality of the latent, number and uniqueness of comparison points, etc.) you have an argument that the otherwise acceptable criteria was not applied property by this examiner. This is discussed in the PCAST report in more detail.

While the PCAST certainly gives you some support to challenge the foundational validity as well, such a challenge may be difficult to win. Potentially packaging such a challenge under the as-applied theory may give you a better shot. Even with a loss - there are a number of motions in limine that should be filed to prevent the examiner from calling it a "match" or even to prevent the examiner calling the testing "science."

Stay tuned for more discussion of forensic science in the near future!

White Folks and Drug Panic

Today, the Senate tried to sweeten the pot for moderates skeptical about Trumpcare by adding $45 billion dollars to treat opioid addiction. Wait, what? I thought that we were supposed to punish our way out of a drug problem, not treat its victims.

Well, it turns out that draconian drug policy doesn’t apply so much to white folks. What’s the difference between our nation’s history of ramping up drug penalties when we perceive a drug epidemic and the Senate’s response to the opioid problem? Well, maybe, the fact that 90% of new heroin users are white.

The history of American moral panics about drugs is inextricably intertwined with racial prejudice. Popular lore linked Mexicans with marijuana, a “killer weed” that arouses a “lust for blood”. Cocaine, said the New York Times, turns a “hitherto inoffensive Negro” into a crazed, murderous superhuman. Crack cocaine, well. Scholars “almost universally agree that drug scares are constructed in the shadow of great racial scares.”

Our point is not that drugs are good. Our point is that drug panics are explicitly intended as vehicles of racial discrimination. Read Murakawa, and the articles she cites. The response to the opioid problem, a largely white phenomenon, demonstrates the point. While

opioid use increased in White communities, rather than arresting consumers, regulators mandated physicians to use Prescription Drug Monitoring Programs, instituted voluntary take-back programs for unused medication, and disseminated the opioid overdose reversal medication naloxone, while passing Good Samaritan laws to protect those calling for emergency assistance during an overdose from drug charges.

So, probably, the opioid problem won’t decouple drug policy from racial politics. And probably, the reason why is that our brains have more empathy for those of the same race. People who abuse (and sell) opioids get funds for treatment. People who abuse (and sell) drugs that been stigmatized by association with minority communities go to jail. We should probably mention this in our sentencings.

--Kirk

Trial Series: How to subpoena federal agents (part two)

In the first part of this post, we dealt with how to comply with the administrative regulations for issuing and serving a subpoena on a federal employee. In this part, we discuss what to do if the employee’s agency refuses or ignores your request.

In short, the answer is to file a motion to compel. As part of that motion, you must demonstrate that you have first complied with Touhy regulations — i.e., served the correct person with the correct document. Failure to do so will require the district court to deny the motion: “Our record shows no effort by defendant to submit the affidavit or statement summarizing the testimony desired so that the Department could consider the request and determine whether to grant permission for the testimony…” so there was no “error in the court’s refusal to require testimony by the [employee].” United States v. Allen, 554 F.2d 398, 406 (10th Cir. 1977). Only by showing that you have complied with these procedures at the outset will the court be in a position to determine whether it “should have rejected a refusal by the Department due to the constitutional guarantees of the Fifth and Sixth Amendments.” Id. at 407.

Assuming you have demonstrated compliance with Touhy’s initial requirements, your motion to compel must also show that the evidence sought by the subpoena is material to your defense. See United States v. Rivera, 412 F.3d 562, 569 (4th Cir. 2005). This is the same standard that you had to satisfy to get the subpoena from the district court in the first place under Federal Rule of Criminal Procedure 17, so this should not be too tall of a hurdle.

If the department refuses your request outright, you should also make an argument under the Administrative Procedures Act, 5 U.S.C. §§ 701-706. Under the Act, federal courts have the authority to set aside any agency decision that is “arbitrary, capricious, an abuse of discretion,” or otherwise unlawful, including one that violates a “constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(A)-(b). If the court concludes that the agency’s refusal meets any of these definitions, then it may “compel agency action unlawfully withheld… .” 5 U.S.C. § 706(1). These provisions allow you to incorporate your most powerful arguments — your client’s Fifth Amendment right to due process and Sixth Amendment right to compulsory process — directly into your statutory argument.

Complying with Touhy may seem intimidating at first blush. No one relishes paging through CFRs and attempting to decipher them. But they are not as complicated as they might appear. All you must do is write a letter, explain why you want a witness or document, wait for the letter to be ignored or refused, and then draft a motion to compel. As long as you’ve written the right letter and sent it to the right person, a court will rarely deny a request for evidence that is material to your defense.

 

---Branden Bell

Trial Series: How to subpoena federal agents (part one)

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:

Agency	CFRs
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

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.

So, 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

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.

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.

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. 

The 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

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.

--Kirk

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.

Confidential-informant discovery

Last week we blogged about a district court suppression order, promising to share more goodies from that same order.

Those goodies are several discovery orders relating to a confidential informant, including the AG's CI guidelines in effect at the time the CI was used, and CI suitability reviews and certain other internal documents relating to the CI.

The district court rejected most of the government's relevance, deliberative-process, and overbreadth objections, and carefully balanced the government's claimed "CI safety" interests against the defendant's trial-preparation interests.

Take a look at this order for (1) inspiration for what specific discovery requests to make with respect to a CI; and (2) a step-by-step argument for why the requested items are relevant and discoverable.

"Drug addiction is generally mitigating . . ."

Continuing with the neurological theme of the last post, there is powerful scientific evidence establishing the long-term effects of methamphetamine addiction, evidence that is relevant to the "history and characteristics of the defendant" under 18 USC sec. 3553(a)(1).

Remarkably, some jurists still debate whether drug addiction is a disease or a product of free will. This distinction often bears on issues of culpability and whether our client is compassion-worthy. In United States v. Hendrickson, 25 F.3d 1166 (N.D. Iowa 2014), Judge Mark Bennett wrote a compelling and detailed sentencing decision that describes this split and "to explain my view that drug addiction is generally mitigating, especially in cases, like this one, where the defendant is both young and has been addicted to drugs throughout adolescence and most of his early adulthood."

Judge Bennett has been a frequent critic of mandatory minimums for low-level addicts. From yesterday's CNN report,

Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins. . . . "I think it's a miscarriage of justice," Bennett says. 

This article compared former Attorney General Eric Holder's more compassionate approach to low-level drug offenders with current AG Jeff Sessions' call for the most serious charges and the most serious penalties available. Here is Larry Leiser, President of the National Association of Assistant U.S. Attorneys, defending the harsh policy as helping “young people who see people in the community wearing heavy gold and chains and hot cars as a result of their participating in the distribution of these drugs, as opposed to going out and earning an honest living.”

Science dismantles this primitive idea that addiction is just a moral flaw or lack of willpower. Sometimes the court has room for discretion, and in those instances, science is on our side.  The Hendrickson opinion is loaded with references to scientific and government studies on the neurological implications of addiction, e.g. Steven E. Hyman, The Neurobiology of Addiction: Implications for Voluntary Control of Behavior, 7 Am. J. Bioethics 8, 9-10 (2007).  Additionally, see Meredith Cusick, Note, Mens Rea and Methamphetaime: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction, 85 Fordham L. Rev. 2417, 2427 (April 2017); and Holley, Mary, Ph.D., How Reversible Is Methamphetamine-Related Brain Damage?, 82 N.D.L. Rev. 1135 (2006); and this from the 2016 (Obama era) Surgeon General's Report, Facing Addiction in America ("Addiction to alcohol or drugs is a chronic but treatable brain disease that requires medical intervention, not moral judgment.").

Postscript: Judge Bennett imposed a lower sentence (31 months) than the prosecutor requested (high end of 46 months) and lower than the defense attorney requested (low end of 37 months).

-- Melody (with thanks to Colorado AFPD Veronica Rossman). 

Constructive possession & 404(b) evidence

Your client is charged with constructive possession of guns and marijuana (with intent to distribute) that were found in his shared house behind a deadbolt-locked bedroom door. Your client's prints were not on any of the drug packaging or guns. He had no key to the lock on the bedroom door. He admits that the house reeked of marijuana, but he says the drugs and guns were not his, and he did not have access to them.

Of what relevance are your client's prior convictions for possession of marijuana and possession with intent to distribute marijuana?

Very little, said the Fourth Circuit last week in a must-read 404(b)-treatise case, reversing the defendant's gun and drug convictions.

Just some of the highlights (note how the court walks through both the relevance and prejudice prongs of the analysis with respect to each category of prior conviction):

The defendant's prior possession conviction was inadmissible to prove his intent to distribute: "[A] defendant's prior conviction for possession of a drug is not relevant to establishing the defendant's intent to distribute a drug at a later time, absent some additional connection between the prior offense and the charged offense." Possession and distribution are "distinct acts" with different intents, purposes and risks.

The defendant's prior possession conviction was relevant to prove his knowledge that there was marijuana in the house (the whole house smelled of marijuana), but he did not contest his knowledge, and the prejudicial effect of the prior conviction far outweighed its probative value: "Due to the lack of evidence connecting Defendant to the drugs inside the locked bedroom and the minimal probative value of the prior possession conviction to establish Defendant's knowledge that the bedroom contained marijuana, there is a strong and unacceptable likelihood that the jury concluded Defendant 'had a propensity for [drug] trafficking and convict[ed] on that basis alone'—the precise result Rule 404(b) forbids."

The defendant's prior possession-with-intent-to-distribute convictions lacked factual similarity and temporal proximity to the charged conduct, and were not relevant to prove his intent to distribute. And, as with the possession conviction, their relevance to prove his knowledge of the presence of marijuana was outweighed by their prejudicial effect. Indeed, "Defendant's prior possession with intent to distribute convictions were arguably even more prejudicial than his prior possession conviction because ‘prejudicial impact is only heightened when character evidence is admitted in the form of a prior criminal conviction, especially a prior conviction for the same crime as that being tried.’"