Wednesday, March 30, 2016

Our Modern Constitution

Stun guns may not be banned on grounds that they were not in common use at the time of the Second Amendment's enactment. So says the Supreme Court in Caetano v. Massachusetts, a summary per curiam opinion issued last week emphasizing that the Court meant what it said in Heller. May stun guns be banned on other grounds? The Court does not say; it simply remands the case for further proceedings.

Perhaps of greater interest is Justice Alito's concurrence, which reminds us that, even under an originalist view, modern technology is not outside the reach of our centuries-old constitution:
Electronic stun guns are no more exempt from the Second Amendment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment . . . . As Heller aptly put it: "We do not interpret constitutional rights that way."
Is this the beginning of the end of originalism? Talk amongst yourselves.

Sunday, March 27, 2016

National Federal Defender and CJA Programs

From CJA Panel Attorney Robert Calbi:

I recently returned from a three-day sentencing workshop put on by the Federal Defender Services Office. The seminar was held in San Diego, California. In my 30-plus years of practice, this was by far the best and most rewarding seminar/workshop that I have attended.

About 30 to 35% of the seminar was in lecture format; the rest of the time was spent in small groups of five or six participants with two facilitating faculty members. The focus was on learning new sentencing practices to help our clients. It was very enlightening.  Each participant was asked to bring an actual case that we were working on to help with sentencing down the road. All participants signed confidentiality agreements so therefore there was no apprehension about sharing input from everyone, including the faculty members.

I would encourage you to attend these workshops. Defender Services goes a long way in trying to assist attorneys in all aspects of federal cases. The tuition is free (it costs the defender services approximately $400 for each participant). You are responsible for your own travel and lodging.  You will also get approximately 20 hours of CLE credit.

This is the third time that I have attended an event sponsored by the Federal Defender Office. The other two were in Chicago in 2012 and in Hilton Head, South Carolina, in 2014. These were both more traditional seminars with lectures from attorneys nationwide.  If you would prefer that to the workshop format I would strongly recommend that you attend one of those events.

You also have an opportunity to meet attorneys from across the country who are CJA panel attorneys or attorneys from Federal Public Defender offices. Listening to the stories from different jurisdictions provides you get great insight and a greater appreciation of the judges in the District of Kansas.         

Thanks to Robert for this guest blog. For more information on national programs, visit  

Wednesday, March 23, 2016

Apologies, Requests, and Reminders

First, apologies for recent technical problems. But those should be fixed now.

Second, remember that you can subscribe to this blog through email subscription. Just type your email in the "subscribe by email" box on the right side of the blog. Every time a new blog is posted, you get an email. If you previously signed up, but haven't been receiving emails, please sign up again and hopefully any glitch in the delivery is resolved.

Third, our request: please click through to the actual blog rather than just reading it on email. Not all of the content comes through on the email and you might miss something (like a Ghostbuster's clip). And unless you click through, the blog site doesn't register the user traffic.

And, finally, if anyone would like to guest blog, please let us know.

-- Melody

Tuesday, March 22, 2016

Ghost-dope-busting, corrected version

Here is the common scenario: a co-conspirator sells some user quantity of methamphetamine to an informant, then is arrested. The lab tests the meth as 99% pure, because everything is these days. Then, the co-conspirator snitches on the others, because everyone does these days. And in the debriefing, he is questioned about amounts: yes, one to two kilos are brought in every week and distributed through the ranks to sell on the street. This went on for about four to six months. He thinks. The PSR exercises conservative restraint and only counts the lower estimates: one kilo a week for 12 weeks equals 12 kilos, in addition to the few ounces actually seized.

This 12 kilos is ghost dope -- somebody said it existed at one time, and they saw it or some evidence of it, but they can't show it to the police or, more importantly, to the laboratory or the jury. Their word on the total amount may hold (not that this should all be attributed to your individual client, even if he is a co-conspirator, see here).

But purity is the game in meth guideline calculations. With 12 kilos, the difference is a base offense level of 34 for a mixture or 38 for actual or ice. Here is the fight: the government argues that the purity of the seized dope, or of average meth on the streets, must also be the purity of the ghost dope. But this argument is "a bridge too far", at least without some corroboration or connection to the defendant, according to United States v. Lemus out of the Ninth Circuit (March 2, 2016). In Lemus, the court rejected a purity approximation that was unconnected with the defendant. Although it found that there was, indeed, sufficient evidence to justify a conviction for distribution of methamphetamine conviction, there was not evidence to justify the quantity element of over 50 grams. The amount depended on the purity of ghost dope, and the only evidence was from the agent who testified that almost all meth seized in the area was more than 90% pure. "It would be a bridge too far to allow a jury to extrapolate from comparison drugs that were not from activity related to the defendant or a conspiracy in which the defendant is involved." The quantity element of the verdict was vacated.

Moreover, on remand, double jeopardy precludes retrial on the higher quantity and lower court was instructed to recalculate the using the lowest quantity category in section 2D1.1. Ghosts did not carry the government's case.

Of course, meth wasn't the first ghost in a courtroom:

Friday, March 18, 2016


Gideon v. Wainwright was decided 63 years ago today. You can listen to Abe Fortas argue the case before the Supreme Court in 1962, courtesy of Oyez. In honor of Gideon's fight, we now celebrate National Public Defense Day. This is a day to celebrate our work. The National Association of  Public Defense, an excellent organization, has more information about the history of the day and about Tipping the Scales.

We still witness the institutional attacks on public defense and the impossible circumstances forced on our colleagues in places like New Orleans, and sometimes in our own courthouses and jails. Our dedication to this work is ever more important. As is often the case, John Oliver says it best, 

Sunday, March 13, 2016

A Very Brady Victory

Sometimes the big SCOTUS wins are the quiet ones. Like last Monday's summary reversal---with no briefing on the merits or oral argument---of a Louisiana Supreme Court ruling denying postconviction relief to a capital-murder defendant on Brady grounds. In Wearry v. Cain, the High Court held that the trial prosecutor's failure to disclose material evidence violated Mr. Wearry's due-process rights.

The evidence at issue included police records casting doubt on the credibility of the state's star witness, an inmate who claimed to have been present at the murder. According to the records, the inmate had been overheard by another inmate saying that he wanted to "make sure [Wearry] gets the needle 'cause he jacked me over." The prosecutor also failed to disclose evidence that another inmate-witness, who also claimed personal knowledge of the crime, had sought to reduce an existing sentence in exchange for his testimony. Contrary to this fact, the prosecutor had stated during opening at trial that the witness "hasn't asked for a thing," and argued in closing that the witness had testified solely because the victim's family "deserves to know" what happened.

The state postconviction court concluded that the prosecutor "probably ought to have" disclosed this evidence, but denied relief, finding no prejudice. The United States Supreme Court disagreed. Discussing Brady's familiar materiality standard, the Court made two important points:

First, the materiality of multiple pieces of withheld evidence must be considered cumulatively, rather than each in isolation.

Second, the materiality standard is met if the new evidence is sufficient to undermine confidence in the verdict. This does not require a showing that the defendant more likely than not would have been acquitted had the evidence been admitted. And, "[g]iven this legal standard, Wearry can prevail even if . . . the undisclosed information may not have affected the jury's verdict."

Thursday, March 10, 2016


The annual national CJA Representative Conference was last week in San Francisco.
Melanie Morgan
Melanie Morgan, the District of Kansas CJA Representative, was elected to DSAG -- the national Defender Services Advisory Group, representing both the Tenth and the Eighth Circuits. This group is comprised of eight CJA district representatives and eight federal defenders. Each serves a four-year term. The group reviews and vets new policies and procedures and other matters related to the Criminal Justice Act, and makes recommendations to the Defender Services Committee. Kansas is fortunate to have a strong advocate at the national level.

The conference provided much information on possible reforms to the Criminal Justice Act, primarily regarding judicial involvement in selection and payment of counsel, as well as review and approval of service providers. Members of the Cardone Committee were present to discuss their study and how they are gathering information for their report. More on that later.

-- Melody

Wednesday, March 9, 2016

Can't get expungement? How about a Certificate of Rehabilitation, instead?

You may recall our post last September about E.D.N.Y. Judge Gleeson exercising his equitable discretion to grant expungement so that a single mother with a 13-year-old conviction could find employment and support her children.

Judge Gleeson has once again shown his compassion for the convicted. But this time, it has taken the form of a Certificate of Rehabilitation---a form of relief from the consequences of a conviction that exists in many states, but not, until this week, in the federal courts.

As with Judge Gleeson's earlier expungement order, the order granting the certificate is rich with observations about collateral consequences and justice reform. Ultimately, the judge urges Congress to authorize a "robust federal certification system."* In the meantime, he issued the following certificate to "Jane Doe," a former defendant in his court (click to embiggen):

Also worth a read is the amicus brief filed in support of Jane Doe, proposing options for granting Doe relief, including both a writ of audita querela, and a recommendation for presidential pardon.
*As the judge points out, the Federal Rules of Evidence already contemplate certificates of rehabilitation. See Fed. R. Evid. 609(c) ("Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated.").

Monday, March 7, 2016

The right to present a defense includes psychological evidence---even in a general-intent case

Rasmieh Odeh was convicted in Israel in 1969 and 1970 of terrorist activities. She was later diagnosed with PTSD as a result of severe torture she suffered at the hands of the Israeli military. When she applied for naturalization in the United States, she stated that she had never before been arrested, convicted, or imprisoned. She was charged with and convicted of making false statements in her naturalization application and to an immigration officer.

Before trial, Odeh proffered expert testimony that her PTSD caused her to "filter out" her experience, and to interpret the naturalization questions "so as to avoid any thought as to her trauma." In other words, she did not knowingly make the false statements.

The district court excluded the evidence, holding that psychological evidence could only be admitted to negate a specific intent, and Odeh was not charged with a specific-intent crime.

The Sixth Circuit disagreed. Citing Chambers v. Mississippi and the defendant's constitutional right to present a defense, the Court found the evidence relevant to disprove the essential element of knowledge. The Court rejected the district court's reliance on a "supposed categorical rule that does not apply." In other words, as long as the psychological evidence is offered to refute some element of the crime, it doesn't matter whether the crime is one of specific or general intent.

Thursday, March 3, 2016

When Lawyers Do Good Things

Today (3/4/16) is Clean Slate Day in Wichita. Volunteer attorneys, prosecutors, judges, runners, clerks, and notaries are joining together to help process expungements for low-income persons who probably couldn't otherwise afford it. It starts at 9 a.m. and finishes by 2 p.m. today at the Sedgwick County District Courthouse. The Wichita Bar Association is sponsoring the free event; the filing fees have been donated to the program. Robert Moody, who just completed the Second Chair Program in Wichita, was instrumental in organizing the event.

Details about eligibility and qualifications can be found here.

-- Laura

Tuesday, March 1, 2016

Mr. Hansmeier Goes to Washington

Dan Hansmeier, our appellate chief, argued before the United States Supreme Court today in Nichols v. United States. And we will not jinx it here, but will say that it went well. Dan did an outstanding job. Read it for yourself. The issue was whether a federal sex offender who resides in a foreign country must update his registration in the jurisdiction where he formerly resided. From Dan's argument and the justices' questioning, it would seem that the answer is no.

Dan Hansmeier, Melody Brannon, Paige Nichols, Tim Henry
Dan Hansmeier
Displaying IMG_3697.JPG
Displaying IMG_3697.JPG
Tim Henry, Melody Brannon, Dan Hansmeier, Carl Folsom, Paige Nichols