Wednesday, May 29, 2019

Bad statute? Challenge it.

Bad laws make bad results for our clients, and there's little we can do about that, right?

Wrong! Bad laws are subject to challenge, and the Supreme Court might well take the bait. According to Princeton Professor of Politics Keith Whittington, the Supreme Court has struck down federal laws more often than we might think. Professor Whittington has done the work and has now made available his Judicial Review of Congress Database. The database takes the form of an excel spreadsheet detailing over 1300 cases in which the Supreme Court has considered, on the merits, a constitutional challenge to a federal law and has either upheld the law, struck it as applied, or struck it on its face.

Read the list. Study the cases. Get inspired. Be bold. Challenge that law.

Wednesday, May 22, 2019

Get a warrant---and get it quickly

We know that law enforcement's seizure of a person may not be longer than necessary to effectuate the legitimate purpose of the seizure (for instance, a traffic stop). The Fourth Circuit made it clear earlier this year that the same rule applies to law enforcement's seizure of a person's cellphone (or other property in which a person has a possessory interest).

In United States v. Pratt, 915 F.3d 266 (4th Cir. 2019), the FBI was investigating the defendant for running a prostitution ring involving minors. An agent seized his cellphone without his consent. But the agent did not get a warrant to search the phone until 31 days later. At a hearing on the defendant's motion to suppress the fruit of the warrant, the defendant argued that this delay was unreasonable. The district court disagreed, but the Fourth Circuit reversed.

Absent the rightful possessor's consent, an extended seizure of property may become unreasonable, explained the Court. Here, the government's only explanation for the delay in seeking a warrant was that law enforcement had to decide in which state to seek the warrant. This explanation was insufficient: "the agents here failed to exercise diligence by spending a whole month debating where to get a warrant."

The Court also rejected the government's argument that it could hold the phone as an instrumentality of the defendant's crime. Only the phone's files had evidentiary value, and thus law enforcement could have copied the files and returned the phone.

Tuesday, May 14, 2019

The duty of confidentiality: a broad duty with few and narrow exceptions

Don't snitch on your client. Not to the prosecutor (duh), not to the Court (in a motion to withdraw, for instance), not to probation (in discussing terms of release, for instance), not to anyone.

"The ethical requirement of confidentiality is . . . interpreted broadly, with the exceptions being few and narrowly limited." So cautioned the Kansas Supreme Court last week in an opinion disciplining a Kansas criminal-defense lawyer for breaching this sacred duty. The opinion reminds us of three important points when it comes to confidentiality:

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There is no waiver when it comes to the duty of confidentiality. A client may give informed consent to a disclosure, but the client's actions or statements to others cannot be said to waive the duty. Waiver "is an evidentiary matter" not relevant to the lawyer's ethical duty.

The fact that the client has given the same (or related) information to a third party does not allow the lawyer to reveal confidential communications without the client's informed consent. In other words, there is no third-person-disclosure exception to the duty of confidentiality.

The Kansas rule states that “[a] lawyer may [not must] reveal such information to the extent the lawyer reasonably believes necessary . . . [t]o prevent the client from committing a crime.” KRPC 1.6(b)(1). Three cautionary notes with respect to this exception: First, the lawyer must "reasonably believe" that the disclosure is necessary. Second, the lawyer should seek to dissuade the client from taking illegal action before resorting to the disclosure. And third, the disclosure should be no greater than necessary to prevent the commission of the crime.

Monday, May 6, 2019

D.Kan. CJA Panel Applications Due May 15

Please help spread the word that the deadline for submitting applications for the District of Kansas CJA panel is Wednesday, May 15, 2019. Applications for attorneys who are not currently on the panel and reapplications for those nearing the end of their three-year term are available here. All attorneys whose terms are expiring (and thus need to reapply) have been notified by email. The new terms begin July 1, 2019, and end on June 30, 2022.

Wednesday, May 1, 2019

Drug quantity estimates: "not a license to calculate drug quantities by guesswork"

Can a sentencing judge estimate drug quantity from the seized drug's packaged weight plus photos of the drugs as they appeared in their packaging? Yes, but this authority is "not a license to calculate drug quantities by guesswork," and the judge must "err on the side of caution."

That's according to the Tenth Circuit this week in United States v. Aragon. In Aragon, the Tenth Circuit reversed the defendant's guideline sentence on grounds that the judge had insufficient evidence to support his drug-quantity estimate. The photos in the case were a poor basis for determining how much weight was attributable to the drugs, and how much to the packaging. The Court noted "the great disparities between gross and net weights in other cases," listing several of those cases.

In the end, yes, the judge may estimate drug quantity. But "the best evidence of net weight is net weight itself." Any other evidence must be viewed with caution.