Sunday, February 28, 2016


Some clients have made unfortunate choices and some, unfortunately, had little choice when they had gang tattoos or other negative images emblazoned onto their skin. Now, years later, they have reason to want to separate from that lifestyle. But it is difficult with the reminder of a visible tattoo.

U.S. Probation in the District of Kansas has teamed up with the Topeka Police Department to develop TRIP: Tattoo Removal Incentive Program. USPO Diana Kerns spearheads the project. "I think it has been an amazing program and has helped the clients with a fresh start." She helps make arrangements and accompanies the clients to their appointments every six weeks.

To be eligible, the tattoos must be anti-social, gang-related, and prevent individuals from finding employment or otherwise interfere in the individual's life. The clients, of course, have obligations, such as sobriety, no more tattoos, and compliance with supervision. Also, they must complete 30 hours of community service before beginning the removal process.

"These type of visible tattoos often create roadblocks for individuals wanting to make meaningful changes in their lives. . . " Tattoo removal often breaks the connections to the elements that caught them up in the criminal justice system.

This program has received positive press coverage, here, here, and here. For more information, contact Diana Kerns.

And thanks to Diana her work and commitment to this program.

-- Melody

Sunday, February 21, 2016

To err is human, to continue divine ....

On August 1, 2016, the Sentencing Guidelines “crime of violence” amendment will take effect, reflecting the Supreme Court decision, Johnson v. United States The benefits of these changes were previously discussed by Paige Nichols herebut this is a substantive amendment and will not apply retroactively. Some clients would fare much better—some by many years—if sentenced on August 1 rather than on July 31, 2016. 

According to reports from defense counsel, some of our District of Kansas courts are granting defense motions to continue sentencings past August 1, 2016 (even over the government’s objection), while some other courts are granting a variance equal to the sentence that would be imposed on or after August 1, 2016. Either of these approaches protect the clients and allow them the benefit of the favorable changes in the Guidelines. Some prosecutors, too, will agree to the adjustment. 

Failure to ask for either a continuance or variance when your client could benefit from the new amendment may be deemed ineffective assistance of counsel. In United Statesv. Abney, the D. C. Circuit held that Mr. Abney was denied his Sixth Amendment right to effective assistance of counsel because his attorney did not ask for a continuance of his sentencing. The sentencing was held between the time when Congress passed the Fair Sentencing Act (FSA) and when the President signed the Act into law. The difference to the client was a mandatory minimum sentence of ten years, rather than five years.

Defense counsel in Abney clearly knew that the Act was on the brink, yet he did not ask for a continuance. The Court observed, “Where sentencing benefits are available under existing law, this court has concluded that counsel is ineffective when he fails to advocate on his client’s behalf at sentencing.” The Court then held that “[o]bjectively reasonable counsel would have sought a continuance to ensure that Abney was sentenced after the FSA became law. There was no strategic reason not to, and the failure to do so was unjustified because ‘it cost the defense nothing and the possible benefit was undoubtedly significant.’”

The same could well be true with the “crime of violence” amendment if counsel does not take some affirmative action. This Guideline amendment could eliminate a Career Offender predicate or knock off up to ten base offense levels in a felon-in-possession case. Protect your client—request a continuance or seek a variance to a sentence that would be imposed under the new amendments.

(Thanks to Kari Schmidt for bringing the Abney case to our attention).

-- Laura 

Saturday, February 20, 2016

Justice Scalia: Executing the Innocent

Justice Scalia’s funeral mass is today. As we listen to the accolades and even give him credit where credit is due, we must also remember him accurately and in full context. And that context was antagonistic, even openly hostile at times, to our clients and our work. He was no doubt entertaining to read and nothing seemed off limits. But let’s recognize his work for what it was:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Herrera v. Collins, 506 U.S. 390 (1993).

Herrera was sentenced to death in Texas for the murder of two law enforcement officers based on eyewitness testimony and other circumstantial evidence. By the time he got to federal court eight years later, witnesses had come forward to say that Herrera’s brother Raul had confessed to the killings. Raul’s son, who was nine years old at the time, testified that he was present when his father killed both officers and that Herrera was not present. But it was too late to matter.

There are many other opinions and dissents that we could cite as similar examples of Justice Scalia’s legacy. But Collins says everything we really need to know. Justice Scalia said, and enforced, his belief:

It is not unconstitutional to execute an innocent man.

Four months later, Herrera was executed. His last words were, “I am an innocent man.”

RIP, Leonel Herrera.

-- Melody


Sunday, February 14, 2016

Justice Scalia

In County of Riverside v. McLaughlin, Justice Scalia began his dissent like this.

The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that “when I was young, I probably let stand some convictions that should have been overturned, and when I was old, I probably set aside some that should have stood; so overall, justice was done."
Justice Scalia was joking, but still. Johnson. Kyllo. Crawford. The cantankerous dissent in King. Some fine justice was done.

We disagreed with the late Justice often. But “death softens all resentments, and the consciousness of a common inheritance of frailty and weakness modifies the severity of judgment.” Rest in peace.

Finally, too soon?

-- Kirk

Wednesday, February 10, 2016

Watch this

President Obama's clemency initiative has reminded us of how oppressive and racially discriminatory our legal system is, the result of unforgiving mandatory minimums, brutal sentencing guidelines, and abusive prosecutorial discretion.

The President is granting clemency to some of the folks who were the most victimized by these laws and policies, including these two women. Take a minute to watch these videos.

Sunday, February 7, 2016

Sufficiency of Evidence under Musacchio

Musacchio v. United States, decided by a unanimous Supreme Court last month, seems to have been met with a general "meh." But we thought it might be useful to look a little closer---and see what the Court did not decide.

The government indicted Mr. Musacchio for improperly accessing his former employer's computer. The original indictment charged him with both unauthorized access and exceeding authorized access. A superseding indictment dropped the exceeding-authorized-access language. But the district court instructed the jurors that they had to find both unauthorized access and exceeding authorized access. In other words, the court held the government to a higher standard of proof than necessary in its instructions, by adding an uncharged element. On appeal, Mr. Musacchio challenged the sufficiency of the government's evidence to establish that added, uncharged element, arguing that the evidence had to be measured against the jury instructions rather than against the charged elements. The High Court disagreed, holding that "when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction."

And that is all that the Court held, as it emphasized in footnote 2:

In resolving the first question presented, we leave open several matters.
First, we express no view on the question whether sufficiency of the evidence at trial must be judged by reference to the elements charged in the indictment, even if the indictment charges one or more elements not required by statute.
Second, we do not suggest that the Government adds an element to a crime for purposes of sufficiency review when the indictment charges different means of committing a crime in the conjunctive.
Third, we also do not suggest that an erroneous jury instruction cannot result in reversible error just because the evidence was sufficient to support a conviction.

Thursday, February 4, 2016

The Return of "Readily Available" Exculpatory Evidence

Last October, we reported this Tenth Circuit case holding that, in determining whether there is probable cause for a felony stop, "officers are charged with knowledge of any ‘readily available exculpatory evidence’ that they unreasonably fail to ascertain.”

This week, the Ninth Circuit issued a similar opinion in Garcia v. Riverside, a civil rights case. The court held that Mr. Garcia had sufficiently pleaded a Fourteenth Amendment violation based on law enforcement's failure to investigate his protestations of mistaken identity when he was arrested on a warrant for a person sharing Mr. Garcia's first and last name, and his birthday, but described in the warrant as forty pounds lighter and nine inches shorter. That's an entire adult head shorter:

"[A]n obvious physical discrepancy between a warrant subject and a booked individual, such as a nine-inch difference in height, accompanied by a detainee’s complaints of misidentification, should prompt officers to engage in readily available and resource-efficient identity checks, such as a fingerprint comparison, to ensure that they are not detaining the wrong person."

And what if Mr. Garcia had not been bold enough to complain?

"[H]ere, the nine-inch difference in height, even if standing alone, is so inexplicable except by misidentification that the booking officers clearly had a duty to make readily available inquiries."