Tuesday, November 29, 2016

Third Chair: Summer Intern Program

The Kansas FPD is pleased to introduce Third Chair, a 2017 summer criminal defense clinic for law students who are interested in public service. Our goal is to develop diversity in the field and to provide first-hand experience in holistic public defense.

The program begins May 30, 2017, with options for either a five- or ten-week program based in our Topeka office. The class will be limited to eight students. This is an unpaid internship, however, we will work with schools for credit or fellowships, and we are exploring other sources of funding. If you are interested in sponsoring a student, please let us know.

Please share this with anyone who might be interested. More information is available on our website at kansasfpd.org.  The application deadline is February 24, 2017; applications will be accepted on a rolling basis. Please direct any questions to che_ramsey@fd.org.

Tuesday, November 22, 2016

No, Mr. Prosecutor, you may not call the large black defendant "King Kong"

Looking for some frank talk about race and criminal justice?

United States District Court Judge Gergel of South Carolina and the Fourth Circuit call it as they see it: Referring to a large black defendant during a capital sentencing proceeding as "King Kong," a "caveman," a "monster," and a "beast" violates due process, especially when combined with the elicitation of evidence that the defendant once had an affair with a "blonde-headed lady" (read: white), and that he had assaulted a white man who, while in a coma, dreamt he was being chased by murderous black Indians.

Judge Gergel (who embedded the above image in his order granting federal habeas relief): "Like the injection of the 'black Indians' dream and the Petitioner's white lover, the King Kong reference is a not so subtle dog whistle on race that this Court cannot and will not ignore."

The Fourth Circuit (affirming Judge Gergel's order):

The prosecutor's comments were poorly disguised appeals to racial prejudice. It is impossible to divorce the prosecutor's "King Kong" remark, "caveman" label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor's comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution. We are mindful that courts "should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning." Donnelly, 416 U.S. at 647. But here, "the prosecutor's remarks were quite focused, unambiguous, and strong." Caldwell v. Mississippi, 472 U.S. 320, 340 (1985). The comments plugged into potent symbols of racial prejudice, encouraging the jury to fear Bennett or regard him as less human on account of his race.

The "King Kong" comment especially drew on longtime staples of racial denigration. That comment was "not just humiliating, but degrading and humiliating in the extreme." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 285 (4th Cir. 2015) (en banc) (internal quotation marks omitted). Likening Bennett to King Kong in particular stoked race-based fears by conjuring the image of a gargantuan, black ape who goes on a killing spree and proceeds to swing the frail, white, blonde Fay Wray at the top of the Empire State Building. Petitioner is right to note that the film is regarded by many critics as "a racist cautionary tale about interracial romance." Br. of Appellee at 40 (quoting Phillip Goff et al., Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292, 293 (2008)).


The record here tells the story. There is no need for elaboration on our part. The criminal justice system must win the trust of all Americans by delivering justice without regard to the race or ethnicity of those who come before it. The many instances where the system performs its duties admirably help to build the trust of the people. A proceeding like this one threatens to tear that trust apart.

Sunday, November 20, 2016

Condition Creep

Supervised release conditions sometimes expand quietly and in small increments, while we are not paying close attention. Then one day, these conditions (which are not necessarily statutorily drawn) are accepted as commonplace restrictions on our clients' rights. Condition creep. Certainly, constitutional rights can be limited while one is on supervision or because of one's status as a felon or sex offender. But constitutional rights cannot be stripped away wholesale.

Pending before the Supreme Court is Packingham v. North Carolina. Cert was just granted October 28, so the case is neither fully briefed nor set for argument. Mr. Packingham, a North Carolina resident, was a convicted sex offender. Six years after his conviction, North Carolina made it a felony for registered sex offenders to access certain websites, including Facebook, YouTube, and the New York Times. This sex offender posted on Facebook, giving thanks to God for the dismissal of a traffic ticket, no doubt the sort of conduct state lawmakers sought to curtail. But he did not get away with his crime -- a vigilant internet Javert spotted the offending post and Mr. Packingham was convicted.

The issue before the Supreme Court is whether the law violates the First Amendment, both on its face and as applied to the petitioner. The cert petition discusses at length similar supervised release conditions, noting that several federal courts have rejected supervised release conditions that compromise constitutional rights. In fact, Packingham tracks issues that the Tenth Circuit addressed in United States v. Ullman, 788 F.3d 1260 (10th Cir. 2015). 

Watch for condition creep, especially if your client has any sort of sex-related prior convictions and regardless of the nature of the current offense. See United States v. Martinez-Torres, 795 F.3d 1233 (10th Cir. 2015).  So make the objections, and we will keep an eye on Packingham.

Thursday, November 17, 2016

Bell and Kansas Robbery

Super, you say. Missouri second-degree robbery is not a crime of violence. But my client was convicted of Kansas robbery. Lot of help this blog is.

Well, friend, take heart. The parallels between the Kansas and Missouri robbery statutes are impressive. According to Bell, Missouri robbery is not a crime of violence because “in Missouri a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury.” The same is true in Kansas.

Your bellwether case is State v. McKinney. The defendant was convicted of robbery. The victim testified that the defendant pushed her as he grabbed her purse. The defendant testified that he grabbed her purse, but did not shove her. The Kansas Supreme Court held that merely grabbing the victim’s purse, causing physical contact with her arm, sustained a robbery conviction. Same as Bell. Not a crime of violence.

--- From Kirk Redmond

Tuesday, November 15, 2016

Bell and the Commentary to USSG § 4B1.2

Here’s what the government will say:

“Maybe Bell is right that robbery doesn’t have a force element. But there’s more than one way to skin a crime of violence. The commentary to § 4B1.2 said (prior to the August 1, 2016 amendment) that the definition of a ‘crime of violence’ includes ‘robbery’. And because your client was convicted of robbery, she has been convicted of a crime of violence.”
Not so.
A quick post-Johnson review. After Johnson smacked down the residual clause, there are two ways for something to be a crime of violence under § 4B1.2. First, it can be an enumerated offense: burglary, arson, extortion, or the use of explosives. I don’t see robbery anywhere in that list. Second, it can be an offense that involves the use, attempted use, or threatened use of physical force. And as Bell establishes, robbery doesn’t qualify there, either. So what to do with the commentary to 4B1.2 listing robbery as a crime of violence?
The First Circuit answered that question in United States v. Soto-Rivera. Remember, guidelines come in two parts: text and commentary. The text is binding. The commentary is not. When the commentary is inconsistent with the text, the text controls. And after Johnson, commentary that says an offense is a crime of violence is inconsistent with the text when that offense is not burglary, arson, extortion, the use of explosives, and lacks a force element. As a Seventh Circuit decision expounding on Soto-Rivera explains,
Under § 4B1.2(a), "crime of violence" means subpart 1 (the elements clause) and subpart 2 (the four specific crimes followed by the residual clause). If the application note's list is not interpreting one of those two subparts---and it isn't once the residual clause drops out---then it is in effect adding to the definition. And that's necessarily inconsistent with the text of the guideline itself.

Bell followed the First and Seventh Circuits, holding that “[p]ost–Johnson . . . § 4B1.2's commentary, standing alone, cannot serve as an independent basis for a conviction to qualify as a crime of violence because doing so would be inconsistent with the post-Johnson text of the Guideline itself.”
The Tenth Circuit agreed, long ago, as we blogged about here. In United States v. Armijo, our Circuit held that commentary which expanded the text could not support classifying a prior offense as a crime of violence. After Johnson, a crime of violence must be an enumerated offense (burglary, arson, extortion, use of explosives) or have a force element. As Bell explains, a prior offense which does not fit those categories is not a crime of violence. At least prior to the August 1, 2016 amendments. More on that later.

---From Kirk Redmond

Sunday, November 13, 2016

Bell: The case so nice we're blogging it thrice

We’re making progress. Since Johnson, the Circuits have consistently held that robbery is not a crime of violence or a violent felony. Thus far, robbery has failed the federal enhancement test in the First Circuit, the Second Circuit (though the opinion has been vacated pending Beckles, you should still rely on its reasoning, and the reasoning of the district courts that agree), the Fourth Circuit, the Eighth Circuit, and the Ninth Circuit. We’re 5-0.

Make it 6-0. Recently, in United States v. Bell, the Eighth Circuit found that Missouri second-degree robbery is not a crime of violence. Why? Well, because “in Missouri a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury.” That quantum of force fails the Johnson test.
If you have a case where your client has a conviction for Missouri second-degree robbery, that conviction is not a crime of violence or a violent felony. Check back with us later this week for more Bell deliciousness.

---From Kirk Redmond

Thursday, November 10, 2016

I was just trying to help....

While I am sure we all appreciate a judge who is trying to help out clients, we have to draw the line somewhere. And here, that line is giving them a longer prison sentence in an effort to promote their reformation.

That is the issue in Tidzump a published Tenth Circuit case that was decided this week. There, Ms. Tidzump asked for an 18 month sentence after being convicted of assault. She cited her need for treatment as a factor supporting the sentence recommendation. The Judge, knowing that she would need at least 24 months remaining on her prison sentence to get into the RDAP program, imposed a 31 months prison sentence. The sentence of 31 months was a below guideline sentence.

The Tenth Circuit reversed the conviction even under a plain error standard, because the "district court expressly lengthened the sentence for the purpose of promoting rehabilitation." The opinion cites heavily to Tapia v. United States, which held that under 18 U.S.C.§ 3582(a) "imprisonment is not an appropriate means of promoting correction and rehabilitation."

The lessons to be learned here are that if you want a client to get RDAP, make sure the reasons to support such a sentence aren't about rehabilitation. Remember too that (as the Supreme Court explained in Tapia) the district court is never sentencing a client to RDAP, that decision is controlled by BOP ("The sentencing court may have had plans for Tapia's rehabilitation, but it lacked the power to implement them.).

Tuesday, November 8, 2016

Proffer failed? Don't panic---you can still defend your client at trial

Your client's proffer was for naught, and now you're facing trial. The proffer letter from the government promised not to use your client's statements against him except to rebut any factual assertions made by him or on his behalf.

Do you dare go to trial? If you do, how vigorously can you defend your client without triggering the proffer waiver?

You won't get much guidance from the Tenth Circuit, but the Second Circuit recently issued a detailed opinion setting out some ground rules, and reversing a rap mogul's murder-for-hire conviction in the process.

In United States v. Rosemond, the Second Circuit held that the district court's interpretation of the defendant's proffer waiver "unduly restricted the permissible scope of his lawyer’s argument and questioning of witnesses, in violation of the Sixth Amendment."

The Second Circuit explained that the following acts do not trigger a proffer waiver:
  1. pleading not guilty;
  2. arguing generally that the Government has not met its burden of proof;
  3. arguing specifically that the Government has failed to prove particular elements of the crime, such as intent, knowledge, identity;
  4. cross-examining a witness in a manner to suggest that he was lying or mistaken or was not reporting an event accurately;
  5. cross-examining a police officer about discrepancies between his testimony and his earlier written report; and
  6. arguing that the Government failed to present corroborating evidence.
The bottom line? A dead proffer does not have to mean a dead defense. Read Rosemond if you find yourself in this predicament.
Image result for proffer cemetery

Sunday, November 6, 2016

New Discovery Order for the District of Kansas

For more than a year, a District of Kansas committee headed by Judge Julie A. Robinson has worked to craft a new discovery and scheduling order. Now a draft has been completed, approved by the judges, and published for public comment. It is posted on the District of Kansas website (for some reason, it is under the newly proposed patent rules, go figure), or you can read it here. This will be applied district-wide, and is intended to provide early, complete, and accountable disclosure.

Please take time to read it carefully and critically. We need to get this right. The deadline for comments is November 26, 2016. We hope this order, or a close version, will be in place soon.

Tuesday, November 1, 2016

The Spoken Word

What the judge said and what the judge wrote are not always the same. When they conflict, which controls? The spoken word. It has been "the law in this circuit since the 1930’s” and remains so today.

In United States v. Young, decided October 31, 2016, the Tenth Circuit remanded a supervised release judgment to the district court with an order for the court to issue an amended judgment that conformed to its oral ruling. At the time of the revocation, the district court imposed an eight-month sentence and three years of supervised release, specifying that “all of the conditions that were previously imposed” would again apply.

But two weeks later, the district court issued the written judgment with different conditions of supervised release that had not been ordered from the bench. The written conditions required Mr. Young  to “reside at a residential re-entry center program, in the community corrections component allowing for work release, for up to 120 days, at the direction of the U.S. Probation Officer.” It also changed the previous requirement to “participate in an approved program for mental health,” to instead require Mr. Young to “participate as directed in a cognitive behavioral program." And, of course, because these were not announced at the time of sentencing, Mr. Young was not in a position to object.

The Tenth Circuit agreed "that the written judgment must conform to Mr. Young’s actual sentence. Rather than vacate Mr. Young’s sentence to remedy this clerical error, we remand with instructions to the district court to issue an amended judgment." The district court must conform the written to the oral judgment; it was not remanded to allow the court to expand or change the original ruling from the bench.

The take-away: take time to compare the written judgment (including the SR conditions) to the court's oral ruling and challenge any variance. This means paying special attention to the conditions recommended by USPO and the court's imposition of sentence. Correcting a variance in the written judgment could mean a great deal if there is a later SRV. Also, check to make sure that any recommendations from the court, such as BOP placement, RDAP, or concurrent sentences, are accurately and completely included in the written judgment.