Monday, May 3, 2021

Speedy trial & release rights during a pandemic

We want to keep our families, our clients, and our communities healthy during a pandemic. But we also want to protect our clients' rights---including their statutory and constitutional rights to a speedy trial (or at the very least release pending a delayed trial). And yet emergency order after emergency order has halted trials in district courts around the country. Something's gotta give at some point---right?   

Not yet (but maybe soon), at least according to a pair of cases decided by the Ninth Circuit last month.

Client on release; continuance authorized under Speedy Trial Act. In United States v. Olsen, the Ninth Circuit held that a district court abused its discretion when it granted Mr. Olsen's motion to dismiss based on the Speedy Trial Act. Specifically, the district court erred when it concluded that the pandemic did not justify an "ends of justice" continuance over Mr. Olsen's objection. Here's what the Circuit had to say about the ends of justice and COVID-19:

It is true “that the ends of justice exclusion . . . was intended by Congress to be rarely used, and that the provision is not a general exclusion for every delay.” . . . . But surely a global pandemic that has claimed more than half a million lives in this country, and nearly 60,000 in California alone, falls within such unique circumstances to permit a court to temporarily suspend jury trials in the interest of public health.

Client detained; release may soon be required on due-process grounds. In United States v. Torres, the Ninth Circuit affirmed a district court's denial of Mr. Torres's statutory and due-process-based motion for release. But the Circuit cautioned in Torres that "the length of Torres's pretrial detention is likely approaching the outer bounds of due process":

On balance, we conclude that Torres's twenty-one-month detention does not yet violate due process, but we caution that the length of Torres's detention is approaching the limits of what due process can tolerate. The length of Torres's pretrial detention is significant under any metric and is deeply troubling. But the lack of any prosecutorial contribution to the delay and the strength of the evidence supporting Torres's detention lead us to conclude that Torres's detention is rationally connected to a regulatory purpose—preventing danger to the community and ensuring Torres will appear as required. . . . However, all parties agree that at some point, regardless of the risks associated with Torres's release, due process will require that he be released if not tried. . . . And if Torres is not tried by his current trial date of May 25, 2021, the district court and the prosecution must consider whether further prolonging Torres's pretrial detention crosses the line from regulatory to punitive detention.

Sunday, April 25, 2021

Challenging guilt by (gang) association

How does your state or city define and track criminal street gangs, gang members, and gang associations? What role do those labels play in Terry stops, at trial, or at sentencing? A new lawsuit against the Wichita Police Department's gang list sheds light on how easy it is to land on the list and how hard it is to get off of it---and how unreliable such a listing is for any law-enforcement or truth-finding purpose.

The ACLU, Kansas Appleseed, and others have sued the City of Wichita, challenging the constitutionality of K.S.A. 21-6313 (state law defining "criminal street gangs") as well as Wichita's practices and policies under the law. The complaint alleges, among other things, that the Wichita Police Department's "practices and policies surrounding its Gang List disproportionately target and harm individuals and communities of color and violate the First, Fourth, and Fourteenth Amendments to the United States Constitution."

The next time an officer claims to have stopped your client because he is a "known gang member," demand the evidence to back up that claim, and demand the evidence underlying that evidence. You may find a whole lot of nothing and a decent challenge to reasonable suspicion (or relevance at trial, or a sentencing enhancement).

Sunday, April 18, 2021

Kansas CJA Panel applications now being accepted

The Criminal Justice Act Panel is a group of qualified attorneys selected by a committee of judges and experienced attorneys to represent individuals in criminal cases who are financially unable to retain counsel. The appointments are made on a rotating basis; the goal is for each attorney on the general panel to receive about six felony appointments each year. The current attorney hourly rate is $155.

Kansas CJA Panel applications are now being accepted until May 3, 2021. The new three-year term begins on July 1, 2021. Qualifications for panel members can be found in the district’s CJA Plan at section IX(C)(3) which can be found here. And panel applications can be found here.

If you have any questions about the application process or the CJA program in general, please contact Laura Shaneyfelt, CJA Resource Counsel, at laura_shaneyfelt@fd.org or 316-761-3652.

Friday, April 16, 2021

The Death of Daunte Wright

 

Much has already been written about 20-year-old Daunte Wright, a Black man killed by a veteran police officer during a traffic stop for purportedly expired tags. And now we have the same debates, the same police excuses, the same empty calls for more police training, the curfews designed to justify more arrests, and police concern about looting.

As public defense lawyers, the next time the government dares to argue that your young client of color should have felt free to walk away from police, that it was a consensual encounter, that their consent to search was voluntary, remember Daunte Wright on the phone with his mother. Remember Caron Nazario, the Black Army officer pepper-sprayed, threatened, struck, and handcuffed by Virginia police. Remember 13-year-old Adam Toledo who was killed by police with his empty hands in the air. Remember that for them, the choice of walking away or refusing to consent is isn't about a constitutional right. It is about whether they will die for doing so. 


Monday, April 12, 2021

A rare (and disturbing) peek into jury deliberations and race

Have you previously tried--and failed--to convince a judge to discuss racial and other biases (conscious or unconscious) during jury selection? Perhaps your judge is simply an optimist. Next time, point your judge to Harden v. Hillman for a peek behind the jury-deliberations curtain. Mr. Harden sued Officer Hillman for violating his constitutional rights. Both Mr. Harden and Officer Hillman are Black. A jury returned a verdict in favor of the officer.

A few months later, the only Black person on the jury came forward via affidavit to report that her service was so painful, humiliating, and embarrassing that she never wanted to serve again. She detailed other jurors' assumptions that Mr. Harden was a crack addict who had sued the officer just to get some money, and their denigration of Mr. Harden's Black lawyer and law team as "the Cosby show." She explained that the jurors had spoken freely in front of her, thinking she was Latina (because of her complexion and her name). She believed that Mr. Harden did not get a fair trial because of the jurors' blatant racial stereotyping.

Despite this evidence, the district court denied Mr. Harden's motion for a hearing to investigate juror bias in connection with his motion for a new trial. The Sixth Circuit reversed. Setting aside the procedural questions at issue in Harden, the case is a useful lesson for judges who don't think jurors need an anti-bias nudge. Is it actually effective to put the dangers of biases on the table during voir dire? I don't know, but surely it couldn't hurt. And it may emboldened some jurors to push back when biases bubble up during deliberations, and refocus the discussion on the evidence.

Thursday, April 8, 2021

Kansas FPD now accepting applications for Second Chair Program

Applications for the 2021 Kansas Federal Public Defender's Second Chair program are now being accepted, through May 31, 2021.

Second Chair is a year-long training and mentoring program for attorneys who want to apply for the CJA panel but lack the requisite federal experience. The program is led by the FPD and will take place in Kansas City beginning July 2021.

The program includes an intensive monthly orientation that covers all phases of a federal criminal case and the federal Sentencing Guidelines. Attendance at these sessions is mandatory for continued participation in the program. Sessions will be held remotely if necessary.

Each participant will also be assigned to an experienced mentor attorney to shadow on selected federal criminal cases.

Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the District of Kansas Bench-Bar Committee.

If you would like to apply, please send a letter of interest, resume, and the names of three references to Dana Burton at dana_burton@fd.org.


Thursday, April 1, 2021

Who We Are: A Chronicle of Racism in America

 
Jeff Robinson has "dedicated his career to chronicling racism." As a former public defender and a trial lawyer, he knows how the criminal legal system has failed and he has seen the crushing injustice our clients of color endure. 

Jeff is also a captivating storyteller and teacher. Every time I hear Jeff speak, I learn something completely new or I see something from an entirely different perspective. He is as much a historian as a lawyer. And now one of his presentations is the basis of a feature-length documentary, "Who We Are: A Chronicle of Racism in America." This film just  premiered at SXSW last month.  



Today, Jeff is the Director of the Who We Are Project. His goal is to correct the narrative about the history of white supremacy and anti-Black racism in America. The Who We Are podcast offers six episodes discussing the history of racism in our country, including voter suppression, mass prosecution, inequities in medical care, and discriminatory housing practices. As  Jeff says, we "can't change our future if we don't understand our past." Listen here

-- Melody