Wednesday, February 26, 2014

PSR ≠ Evidence

Yesterday's decision in US v. Harrison serves as a reminder about the weight and worth of PSR allegations in the Tenth Circuit. When the PSR asserts some reason for a higher sentence -- like drug weight or stolen weapon -- the defense must object as a matter of fact as well as a matter of law. US v. Shinault, 147 F3d 1266 (10th Cir 1998). This triggers the government 's burden of proving the sentence increase. In the face of an objection, the court cannot (usually) just rely on the claims in the PSR. From yesterday's Tenth Circuit decision in US v. Harrison,
  We agree with Defendant’s first argument. When she challenged the drug-quantity calculation in the PSR, the district court did not require the government to put on evidence supporting the calculation, stating that the PSR was based on trial testimony. This statement was inaccurate, and the error was not harmless because the trial evidence would not compel a finding of at least 1.5 kilograms of methamphetamine.
In this case, it was the defendant speaking up at sentencing, over her lawyer's apparent onset of selective mutism, that preserved the issue. The Government, of course, could have referred to trial testimony as evidence of weight, except here, the trial evidence did not support the PSR conclusions.  "We are particularly hesitant because the PSR did not see fit to refer to the testimony of the witnesses."

Harrison's 360-month sentence was vacated and remanded.

-- Melody

Monday, February 24, 2014

Getting Schooled

Well, not in that sense, necessarily, but we wanted to make sure you were all aware of some national training opportunities. Usually sponsored by Defender Services, these are top-quality programs at places you actually want to go to. Most are free and fill up quickly.

Here is a partial list from


    PHILADELPHIA, PENNSYLVANIA - June 19 - June 21, 2014 
    The Sentencing Advocacy Workshop focuses on a vital area of federal practice that has evolved since the Supreme Court declared the federal sentencing guidelines were advisory and no longer mandatory. Since approximately 97% of federal criminal cases continue to the sentencing phase, participation in the Sentencing Advocacy Workshop should not be missed. The Sentencing Advocacy Workshop teaches a comprehensive approach to sentencing where participants are trained to develop persuasive, fact-based, sentencing theories, and are provided with the advocacy skills necessary to advance their theories both in writing and during sentencing hearings. Presentations and demonstrations at the workshop include client relations and interviewing for mitigation, brainstorming the facts of the case, developing persuasive theories and themes, storytelling at sentencing, persuasive writing, and persuasive presentation. The workshop consists of plenary sessions and small group breakout sessions. In the small group sessions, participants will use pending cases of their own to brainstorm facts, develop theories and themes, practice storytelling, persuasively write part of their sentencing memorandums and discuss how best to conduct sentencing hearings.

    Enrollment for this program is limited to 72 federal defenders and federal panel attorneys who have not participated in this workshop in the past. Registration is scheduled to open in mid-March 2014.

    Early registration is encouraged.


    MINNEAPOLIS, MINNESOTA - July 31 - July 31, 2014 
    The Fundamentals of Federal Criminal Defense Seminar is a program specifically designed with the new federal practitioner in mind. If you are new to the world of federal criminal defense, this program will introduce you to subjects essential for effective representation of clients in federal criminal court.  Attendees will have the luxury of learning, asking questions and working with other participants who are also new to this difficult area of practice.  The program provides a rare opportunity for new CJA panel attorneys, and those seeking to join the panel, to hear a dynamic group of attorneys and legal professionals speak on a wide variety of  topics.  The Fundamentals of Federal Criminal Defense Seminar runs concurrently with the Multi-Track Criminal Defense Seminar and both programs are located in the same hotel.  Fundamentals participants are thus encouraged to attend the second and third day of the Multi-Track program on Friday and Saturday, August 1-2, 2014.  For more details about the Multi-Track Federal Criminal Defense Seminar, see the program's description on  To attend both seminars, individuals must enroll separately in both Fundamentals and Multi-Track.


    MINNEAPOLIS, MINNESOTA - July 31 - August 02, 2014 
    The Multi-Track Federal Criminal Defense Seminar offers in-depth instruction in a variety of substantive areas of federal criminal defense practice.  The program consists of related sessions, or tracks, which are grouped together allowing attorneys to select areas of practice that they feel best meet their training needs.  The design of the program allows attorneys to attend two entire tracks on Thursday and Friday and a third track on Saturday.  In addition to the tracks, the program includes an additional four to six substantive plenary lectures that cover more general areas of federal criminal practice.  The tracks for the August 2014 Multi-Track Seminar will be announced 3-4 months before the program.  In the past, tracks have included such areas as forensics, immigration, guns, drugs, sentencing, computer crimes, fraud, mental health issues and the use of experts.  Registration for the program will open in April 2014. 


    TAMPA, FLORIDA - September 18 - September 20, 2014 
    In the digital era, knowledge about managing, reviewing and analyzing electronic discovery or voluminous discovery is a critical skill for criminal defense attorneys.  In fact, the first principle of the national joint electronic discovery protocol developed by representatives of the Department of Justice, Federal Public Defenders, CJA panel attorneys and the Defender Services Office reflects this trend in the law: “[l]awyers have a responsibility to have an adequate understanding of electronic discovery.”  (See, ESI Protocol)

    The Law & Technology Series: Techniques in Electronic Case Management (TECM) Workshop exposes FDO and CJA panel attorneys to the legal, strategic and technological considerations involved with electronic and/or voluminous discovery.  This two-and-a-half-day program uses a combination of plenary presentations and small group, hands-on instruction.  Besides gaining an understanding of the legal, practical, and technological considerations in these types of federal criminal cases, participants will learn basic and advanced features of three litigation support software programs (Adobe Acrobat Pro, dtSearch, and CaseMap/TimeMap suite).  Attendees will better understand how legal litigation support programs work, and how to coordinate thoughtful work-flow processes with co-counsel, staff and potential vendors.  They will also improve their overall ability to master case information, in order to better prepare a defense.

Monday, February 10, 2014

Who is on our side? Really?

Senator Rand Paul (R-KY) speaks to the press outside after listening to President Obama speak about poverty during an event in the White House on January 9, 2014 in Washington, DC.
 Sen. Rand Paul, R-Ky
The most bi-partisan Congress in memory is coming together to support . . . . fairer drug laws? Rand Paul, of all folks, is the leading Republican voice of reform. This must-read Slate article, Forgive and Forget, lays it out: "On drug sentencing, a growing number of Republicans are ready to shed the party’s law-and-order image in favor of reform."

What this means: all the talk we've had here about the possible Smarter Sentencing Act, which just came out of Senate Committee last week, and that we've blogged about here, may soon become reality.  Ten-year mandatory minimums become five, five, becomes two, and mandatory life is gone.

It should be factored into your strategy and negotiations in drug cases -- all drugs cases, not just crack. And, remember, the USSG is considering a two-level decrease for all drugs, across the board. More reason to slow down and see how some of this plays out, because we don't know whether or how retroactivity will play into this.

There's also the Govt Track widget to your right, to let you know House progress.

-- Melody

Sunday, February 9, 2014

"Criminalizing Mental Illness"

Read this with an eye toward below-guideline variance. Remember, outside studies, empirical data, and even anecdotal evidence can be persuasive in seeking a just sentence for your client.

The erosion of mental health care in the United States coincides with our efforts to de-stigmatize mental illness. We want to make it more socially acceptable, we just don't want to have to pay for it. The result: we jail the sick. We don't have anywhere else to treat them, to care for them, to let them heal. So we lock 'em up.

Psychiatric disorders are the only kind of sickness that we as a society regularly respond to not with sympathy but with handcuffs and incarceration. And as more humane and cost-effective ways of treating mental illness have been cut back, we increasingly resort to the law-enforcement toolbox: jails and prisons.

Nicholus Kristof wrote this in the Sunday Times today. He visited the Cook County Jail in Chicago, which houses over 11,000 inmates. Over half have been diagnosed with some form of mental illness. The Sheriff of Cook County seems to have the most spot-on, sympathetic assessment, “It really is one of those things so rich with irony: The same society that abhorred the idea that we lock people up in mental hospitals, now we lock people up in jails.”

In 1955, there was one bed in a psychiatric ward for every 300 Americans; now there is one for every 3,000 Americans. More effective drugs are available, but still out of reach for those living on the edge of society. Self-medication is often what lands them back behind bars. And it costs far more to incarcerate and medicate someone than it does to care for them while they are on their own. Yet, per HuffPo, "In the past three years, $4.35 billion in funding for mental health services has been cut from state budgets across the nation, according to a recent report." 

More numbers can be found here, at the Bureau of Justice Statistics report, and the GAO issued a report last year, "BOP: Timelier Reviews, Plan for Evaluations, and Updated Policies Could Improve Inmate Mental Health." And offers a "Guide to Mental Health Mitigation," by David Freedman.

Back to Cook County: "As Sheriff Dart puts it: “We’ve systematically shut down all the mental health facilities, so the mentally ill have nowhere else to go. We’ve become the de facto mental health hospital.”

-- Melody