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

 

Sunday, March 28, 2021

"We arrest you, madam."

"The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person." The slightest touch might suffice. "[T]he appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain."

So said the United States Supreme Court last week in Torres v. Madrid.

Read Torres for a summary of the two ways in which a seizure may occur: [1] With contact, regardless of submission; or [2] without contact, so long as there is (a) an assertion of authority and (b) submission to that authority.

*Not the same Countess of Rutland
(*Not actually the same
Countess of Rutland
)
Read Torres also for the historical context of the Court's holding, which includes this description of a genteel arrest in the Countess of Rutland's Case:

In that case, serjeants-at-mace tracked down Isabel Holcroft, Countess of Rutland, to execute a writ for a judgment of debt. They “shewed her their mace, and touching her body with it, said to her, we arrest you, madam.”

These days, seizures look a bit different, as the Torres majority notes: "There is nothing subtle about a bullet, but the Fourth Amendment preserves personal security with respect to methods of apprehension old and new."

Wednesday, March 24, 2021

The parsimony principle is real

Is prison time appropriate for every supervised-release violation---or for every crime, for that matter? Of course not. One of criminal law's core principles is that "punishment should be proportionate to the offender's wronging and blameworthiness." Robinson, Paul H., Criminal Law’s Core Principles (February 10, 2021) (forthcoming). But courts rarely articulate or explicitly enforce this principle. For a reminder of the key role it plays in federal sentencing, read this Seventh Circuit decision and remember to invoke the parsimony principle at your next sentencing hearing:
Sentences must always conform to the “broad command” of the parsimony principle, which requires that sentences be “‘sufficient, but not greater than necessary to comply with’ the four identified purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 137 S. Ct. 1170, 1175 (2017), quoting 18 U.S.C. § 3553(a). This principle is especially important in a case like this where the alleged violations were not criminal, the defendant asserted a lack of intent, and there was evidence of reasonable efforts and good faith, putting in question which of the purposes of sentencing apply.

The Supreme Court has observed that prison is not necessarily appropriate for every violation of a condition of release, such as where, as the defendant asserts here, the defendant made bona fide efforts to comply and does not obviously pose a threat to society. Bearden v. Georgia, 461 U.S. 660, 668–70 (1983). “The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty.” Johnson v. United States, 529 U.S. 694, 708–09 (2000). Sending a defendant back to prison for a violation that occurs despite reasonable and good faith efforts to comply may well undermine that transition. 

Sunday, March 14, 2021

Trying to exercise Fourth Amendment rights "is difficult and dangerous work"

Race is relevant to whether a person consented to a search (or to waive Miranda rights, or to “confess”). See United States v. Mendenhall, 446 U.S. 544, 558 (1980) (it was not irrelevant to the question of consent that “the respondent, a female and a Negro, may have felt unusually threatened by the officers, who were white males”). See also Beau C. Tremitiere, The Fallacy of A Colorblind Consent Search Doctrine, 112 NW. U. L. REV. 527 (2017). That's because the question of consent when it comes to searches and confessions is subjective: whether this person's consent was voluntary.

But race is not relevant to whether a person consented to a police encounter. United States v. Easley, 911 F.3d 1074, 1080-82 (10th Cir. 2018). That's because the initial seizure question is objective: whether a reasonable person would feel free to leave.

Why the difference? Search me. Better yet, read the majority and concurring opinions in the Eleventh Circuit case United States v. Knights, issued last week after the panel revisited its own previous decision on the issue.

The first time around, the Eleventh Circuit published an 11-page unanimous decision affirming the district court's denial of Mr. Knights's motion to suppress after finding that the law-enforcement "interaction" that Mr. Knights challenged was a consensual encounter. Among other things, Mr. Knights had argued that young African-American men do not feel free to walk away from multiple police officers "without risking arrest or bodily harm." Rejecting this argument, the panel concluded that, "[a]lthough the presence of multiple officers and the age and race of a suspect may be relevant factors . . . the totality of the circumstances establish that this encounter was not coercive."

Mr. Knights moved for rehearing. The panel requested further briefing addressing "whether the race of a suspect may be a relevant factor in deciding whether a seizure has occurred under the Fourth Amendment," citing Easley.

Last week, the panel vacated its first decision but reaffirmed the district court's denial of Mr. Knights's motion to suppress, this time in a 51-page published decision (majority + concurrence). This time, the panel held that race is never a relevant factor when deciding the initial seizure question (following Easley).

Judge Rosenbaum concurred in a lengthy must-read opinion. She sets out all of the ways in which the "free to leave" test "is unworkable and dangerous." She recognizes that policing is itself "difficult and dangerous," but "so is being a citizen trying to exercise his Fourth Amendment right to be free from unreasonable seizures"---an "especially tricky dilemma for Black citizens, who studies indicate historically have disproportionately suffered violence in law-enforcement encounters."

Ultimately, Judge Rosenbaum feels bound by existing law to leave race out of the "free to leave" calculus. But she invites the Supreme Court to adopt a modest bright-line, race-neutral amendment to that calculus: officers must clearly advise a person they wish to question whether the person is free to leave, before any questioning begins. If they don't, the encounter is presumptively a seizure. If they do, the encounter is presumptively consensual. Not a perfect solution, but a decent start. 

While we wait for that bright-line rule, take Judge Rosenbaum's opinion as a model for arguing that the lack of a free-to-leave advisory is, if not controlling, at least relevant to the analysis and weighs against a finding of a consensual encounter.

Sunday, March 7, 2021

Guidelines commentary and zones of ambiguity

Is your client looking at a sentence driven by a sentencing guideline commentary? Does that commentary interpret a genuinely ambiguous guideline? Does the commentary fall within the identified zone of ambiguity? What is a "zone of ambiguity" anyway?

Guideline commentary can only interpret a guideline--it can't add to it. But the test for when courts may rely on the commentary is complicated and disputed.

It's time to update our understanding of that test. Read these two recent cases from the Sixth Circuit (loss commentary) and the Third Circuit (career-offender commentary). Watch for a ruling on the cert petition in Tabb (career-offender commentary; distributed for conference of 3/19/2021).

And urge your district court to wake up from its "slumber of reflexive deference" to the sentencing guidelines commentary.

Tuesday, March 2, 2021

Discovery: DNA source code v. Sixth Amendment

 TrueAllele is probabilistic genotyping  (DNA) software that prosecutors sometimes rely on when traditional DNA testing is inconclusive. Probabilistic DNA testing can run different variations or hypothesis on small or complex DNA mixtures. Cybergenetics, which owns TrueAllele, says “it removes human intervention, error, and bias” to get information “many crime labs can’t.” But how this works—that is, the proprietary source code*−is a protected trade secret.

 When trade secrets clash with the Sixth Amendment, the Sixth Amendment wins. At least it did last week in EDPa in United States v. Ellis. There, the government wants to rely on TrueAllele results as evidence that the defendant’s DNA was on a gun. The government refuses to provide the source code and other data, citing Cybergenetics’ trade-secret claim. The defense sought a subpoena duces tecum, which the government opposed. After ten months of litigation, the federal district court ruled in the defense’s favor, albeit with a protective order. The defense should now be able to determine the basis of the results and, if necessary, challenge the government’s evidence under Daubert.

The ACLU and Electronic Frontier Foundation filed an amicus brief in support of the defense subpoena. From the EFF: “DNA analysis programs are not uniquely immune to errors and bugs, and criminal defendants cannot be forced to take anyone’s word when it comes to the evidence used to imprison them.” Miscoding in STRmix, a TrueAllele competitor, revealed misleading results. On this point, a New Jersey Superior Court opinion issued Feb. 3, 2021, State v. Corey Pickett, observed,

The defense expert's access to the [TrueAllele’s] proprietary information is directly relevant to that question and would allow that expert to independently test whether the evidentiary software operates as intended. Without that opportunity, defendant is relegated to blindly accepting the company's assertions as to its reliability.  

 Takeaway: challenge science that relies on proprietary software, such as DNA or facial recognition or location-monitoring. And Tom Bartee's reminder:  discovery under a protective order is commonplace in trade secret litigation, so courts should reject the claim that trade secret = not discoverable, period.  

More here and here. Stay tuned for the government’s next move.

 *Source code is the string of commands or instructions that tells the computer how to execute the program.

 -- Melody