Sunday, July 30, 2017

Law-abiding tea drinkers and gardeners beware . . .

So begins Judge Lucero's opinion in Harte v. Johnson County Board Comm'rs, a 100-page civil-rights plurality decision from the Tenth Circuit last week.

The Harte family (mom,* dad,* and two children) became "suspects" on a list of potential marijuana growers because dad and his two kids once visited a hydroponic garden store. Seven months after the garden-store visit, Johnson County officers claimed that two trash pulls from the Harte home yielded wet green vegetation** that allegedly field-tested positive for marijuana. The officers elected not to confirm these results with laboratory tests. In a hurry to meet their deadline for a drug-prosecution publicity stunt,*** they got a search warrant and executed a seven-man, two-plus-hours SWAT-style raid on the Harte family home.

Read about the raid for yourselves on pages 8-9 of Judge Lucero's opinion. It was intense. And the big find? Nothing but tomato plants.

The Hartes sued, asserting Fourth Amendment violations. The district court granted the defendants summary judgment on all claims, and the Hartes appealed. The Tenth Circuit sent the case back for further proceedings.

Some highlights:

Judge Lucero found the SWAT style raid to be excessive force and thus an unreasonable execution of the search warrant at pages 14-19/Lucero. Judge Phillips agreed. Page 50/Phillips. (They disagreed about whether the law on this issue is clearly established.)

Judge Phillips found insufficient allegations for the Hartes to proceed with their Franks claim that the Johnson County Officers lied about the field tests in their search-warrant affidavit. Judges Lucero and Moritz disagreed, finding that the Hartes had made the required "substantial showing" to proceed on at least part of their Franks claim. Pages 11-13/Lucero; Pages 3-8/Moritz.

Judge Phillips found that the search warrant was supported by probable cause, but that "what the deputies learned early on in the search dissipated any probable cause to continue searching." Page 34/Phillips. Judge Lucero agreed (though he would not have found probable cause in the first place). Page 14/Lucero. (Again, they disagreed about whether the law of dissipated probable cause is clearly established.) Dissipated probable cause is a theme we've seen before in the Tenth Circuit, here and here. Take heed. This is an issue not to be overlooked in suppression litigation.


*Oops, ex-CIA employees with the highest security-level clearance and no criminal records. And Mrs. Harte an attorney. Which Johnson County never bothered to find out before raiding their home.

**Double oops. Actually Teavana tea leaves.

***Judge Lucero: "This is too rich for fiction."

Thursday, July 27, 2017

Let's talk about forensic science: week 4

We will take a break this week from scaring you with science by....scaring you with science. The last thirty years have shown that DNA evidence can be used to convict (or exonerate) someone. It is now 2017. A new technology uses a DNA sample to pull "physical appearance and other information from DNA samples." The process is referred to as DNA phenotyping. Phenotyping attempts to predict likely hair color, eye color, skin, etc. That information is used to create a profile of a suspect (as in the photo below).

Then, if the police get a tip they follow around the suspected person until they can get a DNA sample (from a fork, spit, trash, etc.) and then run that DNA sample. And the odds that the sample will have a significance is high because we already know the person has the same eye color, hair color, etc. There are already examples of using this technology in Louisiana and California. For a discussion of some of the concerns related to phenotyping the ACLU has a section dedicated to the topic.

Tuesday, July 25, 2017

What to expect when you're expecting a prison term

Do you have clients who are headed to prison?
Don't let them go unprepared.

Next Thursday, August 3, 2017, from 3 p.m. to 5 p.m. at the Kansas City, Kansas, courthouse, US Probation will be holding its quarterly orientation program for people facing federal prison time. Family and counsel are encouraged to attend. Participants may join by videoconference from Wichita and Topeka.

Among other things, attendees will learn (or be reminded of):

  • What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
  • How to self surrender;
  • What to take (and what not to take) to prison;
  • What programs are available in prison (educational, vocational, religious, mental health, medical);
  • What to expect with respect to visitation, phone calls, email, etc.; and
  • How federal prisons help prepare clients for release.

At one program, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was punctuated by the fact that they were celebrating the recent purchase of their first home.

Questions? Call US Probation Officer Sara Valdez Hoffer at 913-735-2402.

Sunday, July 23, 2017

Trial Series: In which we excitedly utter words about excited utterances

We recently published a moon-shot post about science and the excited-utterance hearsay exception. While it's a bit too early to declare victory, the Tenth Circuit had this to say last week in United States v. Magnan:
We are well aware that both courts and commentators have criticized the excited utterance exception to the rule against hearsay “on the ground that excitement impairs accuracy of observation as well as eliminating conscious fabrication.” Fed. R. Evid. 803(2) advisory committee’s note. See, e.g., United States v. Boyce, 742 F.3d 792, 796 (7th Cir. 2014); 2 McCormick on Evidence § 272, at 366 (7th ed. 2013). But because Defendant does not ask us to hold the well established exception invalid on its face, we consider his argument that the district court abused its discretion in applying the exception only on the facts presented.
This sounds to us like an invitation. Use the neuroscience to challenge the excited-utterance hearsay exception, an issue of which the Tenth Circuit is “well aware,” and appears open to considering.

---From Kirk Redmond

Tuesday, July 18, 2017

Johnson applies to deportation law in Tenth Circuit . . . for now

You've heard a lot from us since Johnson about what prior convictions count as predicate offenses for purposes of the ACCA and the guidelines. One aspect that can easily be overlooked is Johnson’s impact on immigration law, specifically on the deportation of aliens. The Immigration and Naturalization Act provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission” is subject to deportation. 8 U.S.C. § 1227(a)(2)(A)(iii).The term “aggravated felony” is defined in the INA as “a crime of violence (as defined in § 16 of the Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101 (a)(43)(F). The similarities between the definition used in the INA and the definition used in the ACCA of “aggravated felonies” and “violent felonies” has sparked a circuit split regarding whether a void-for-vagueness challenge is applicable to deportations based on the “aggravated felonies” definition.

The Tenth Circuit has lined up with the Sixth and Ninth Circuit in extending the application of Johnson to deportation cases. Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016); Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). In Golicov, the Tenth Circuit agreed with the Sixth and Ninth Circuits that “because deportation strips a non-citizen of his rights, statutes that impose this penalty are subject to vagueness challenges under the Fifth Amendment.” Since Johnson addressed a constitutional vagueness challenge to the ACCA’s definition, then logically the same would apply to the INA.

However, the Fifth Circuit and the Second Circuit have rejected this application of Johnson. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc); United States v. Hill, 832 F.3d 135 (2d Cir. 2016). The Fifth Circuit pins its conclusion on the premise that the textual differences between § 16(b) and the ACCA’s residual clause are significant enough to spare § 16(b) from being unconstitutional because the ACCA’s residual clause “requires courts . . . to decide whether the ordinary case would present a serious potential risk of physical injury.” In contrast, § 16(b) focuses on whether the conduct ‘involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In the Fifth Circuit’s view, the “[r]isk of physical force is more definite than risk of physical injury,” and “by requiring that the risk of physical force arise ‘in the course of committing’ the offense, 18 U.S.C. § 16(b) does not allow courts to consider conduct or events occurring after the crime is complete." Therefore, § 16(b) is saved by its more “definite” language.

As it stands right now, the Tenth Circuit law is still binding, and any challenge based on the void-for-vagueness doctrine will likely be successful in this circuit. However, the Fifth Circuit view may attract some traction with the new Supreme Court. Dimaya’s petition for certiorari in the Ninth Circuit case consistent with Golicov was granted on September 29, 2016. The case was argued last January, but in June the Court restored it to the calendar for reargument. Thus perhaps in the next term a definite ruling by the Supreme Court will settle this issue, but in the meantime the Tenth Circuit has certainly opened a door for counsel to pursue another avenue in protecting their clients from deportations.
---Contributed by Will Machado, Washburn Law 2019.

Sunday, July 16, 2017

Stingrays on trial

As you may recall, we blogged about a Seventh Circuit Stingray (cell-site simulator or CSS) case here last year. In United States v. Patrick, the Seventh Circuit expressed interest in but did not reach the question whether the use of a Stingray implicates the Fourth Amendment. This question has become even more interesting since the Supreme Court's cert grant in Carpenter v. United States (Question presented: "Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment").

Now entering the fray: a suppression motion in United States v. Ellis, being litigated by a former federal prosecutor. Issues include whether the government's warrantless use of a Stingray is a "search" for Fourth Amendment purposes; whether Franks requires government agents to disclose their reliance on Stingrays in search-warrant affidavits; and whether the warrantless use of a Stingray can be excused if the officers acted in "good faith." Here is the government's opposition to the motion. The hearing is scheduled for August 2. Stay tuned.
Image result for stingray

Tuesday, July 11, 2017

Prison doesn't cure society's drug ills (well, duh)

Looking for more data to support your variance motions in drug cases? The Pew Charitable Trusts has you covered. In a study publicized last month, Pew examined "whether state drug imprisonment rates are linked to the nature and extent of state drug problems," and found "no statistically significant relationship between states’ drug offender imprisonment rates and three measures of drug problems: rates of illicit use, overdose deaths, and arrests." As Pew notes, these findings reinforce other research casting "doubt on the theory that stiffer prison terms deter drug use and related crime."

Great stuff here, with lots of citations (and links) to research in support of the argument that prison is not an effective drug-control strategy.

Sunday, July 9, 2017

Plea colloquy not enough to trigger mandatory minimum (Biglow redux)

Remember the Biglow cases? We blogged about them back in 2015. In Biglow II, the Tenth Circuit made it clear that the mandatory minimum sentences in 21 U.S.C. § 841(b) cannot be triggered on anything less than proof or an admission that X amount was involved in the scope of the criminal activity that the defendant jointly undertook, and that X amount was reasonably foreseeable to the defendant.

We wondered at the time what kind of plea colloquy would satisfy this requirement. Last month, the Tenth Circuit answered that question in United States v. Carillo.

Mr. Carillo was charged with participating in a 100-plus gram heroin conspiracy. This quantity would have subjected him to a mandatory minimum of 5 years in prison. But the only overt act attributed to him in the indictment was one 50-gram sale.
Mr. Carillo pleaded guilty as charged without a plea agreement. At his plea hearing, the prosecutor recited Mr. Carillo's involvement in the 50-gram sale, and Mr. Carillo agreed with that recitation. Nothing in the plea record established that the 100-grams-plus quantity charged in the conspiracy as a whole was either within the scope of Mr. Carillo's agreement or reasonably foreseeable to him. Nonetheless, the district sentenced Mr. Carillo to the 5-year mandatory minimum rather than within his 27-33 month guideline sentencing range.
Mr. Carillo appealed, attacking his plea in multiple ways. The Tenth Circuit rejected most of his attacks, but held that this record did not establish an adequate factual basis for Mr. Carillo's plea: "[T]o prove the factual basis for Carillo’s conspiracy plea, the record has to show that the 100-gram drug quantity was within the scope of the agreement and reasonably foreseeable to him." (Citing Alleyne). "Carillo's admission to one fifty-gram heroin on day one of the conspiracy---with no further alleged involvement---was insufficient to support his plea to conspiracy to distribute 100 grams of heroin."

So what's the remedy? Withdrawal of the plea? Or can Mr. Carillo stand convicted of a lesser included conspiracy---one that doesn't trigger that statutory minimum? The parties didn't address this issue on appeal, and so the Tenth Circuit punted it back to the district court.

Thursday, July 6, 2017

Let's talk about forensic science: week three

Forensic science is (supposed to be) science. And no science is perfect. But forensic science in courtrooms is often introduced as infallible. But there are errors in science. And there are certainly errors in forensic science. And there is where it gets complicated. Because forensic science is often used to convict people of crimes. And the standard of proof to convict someone of a crime is beyond a reasonable doubt. So how can a case built completely or largely on forensic science be proof beyond a reasonable doubt?

These are not easy questions but they are questions we need to be asking in the courtroom. If fingerprint evidence is introduced we need to tell our juries the error rate could be as low as .8% or as high as 34%. Neither should be acceptable. We should request a jury instruction that tells the jury to consider that error rate (and other factors) in determining what credibility should be given to the forensic science introduced in the case. Prosecutor has an expert who says there is no error rate? That claims the method is 100%? Silly. Point out there was literally a whole conference on this topic. They must not have attended it. Point to learned treatises that say otherwise. Ask them to produce a study that supports a 0% error rate.

This is an effective attack in a case where the forensic science is the only evidence connecting a client to a crime. Cold hit fingerprint or DNA hit? Error rate. No other evidence linking the client to the charge? Error rate. Point out that even if the error rate is low, that this is the exact type of case where an error can occur. Other cases usually have other evidence linking a defendant to a crime. A case that wholly relies on forensic science is a ripe case for error and a ripe case for a wrongful conviction.

Don't be scared that the whole case is based on forensic science. That is a sword for your client. Use it.

Tuesday, July 4, 2017

The cost of freedom: Reforming America's money bail system

Gideon v. Wainwright proclaimed the right of every criminal defendant to the assistance of counsel, regardless of ability to pay. In theory, this guarantees a more even playing field in our criminal justice system. The poor may have been granted access to public defenders, but in a country of extreme wealth and income inequality, they don’t get off that easy.

Enter the money bail system. Hundreds of thousands of people currently sit in jail around the country simply because they cannot afford to make bail while waiting for trial, many for misdemeanor offenses. Money bail schedules predetermine bail amounts without inquiring into ability to pay or any extenuating circumstances. Those who work with incarcerated individuals know all too well what happens to these people, who at this point are “presumed innocent.” On the inside, they face the oppressive conditions of American jails. On the outside, they face the loss of housing, employment, custody of children, and faith in a system that will fairly adjudicate their case. They are more likely to plead guilty, more likely to be convicted at trial, and more likely to receive longer sentences. The message is clear: poverty can make you lose your freedom.
The tide is turning on this wealth-based system of pre-trial detention. Last year, two civil rights groups, Texas Fair Defense Project and Civil Rights Corps, and Houston-based litigation shop Susman Godfrey, challenged Harris County, Texas in federal court on the constitutionality of its money bail system. Harris County, Texas is the third-most populous county in the nation and home to 50,000 misdemeanor arrestees every year. In April, Chief Judge Lee H. Rosenthal of the Southern District of Texas issued a monumental 193-page ruling enjoining the money bail system in Harris County on equal protection and due process grounds, in O’Donnell v. Harris County, No. H-16-1414 (S.D. Tex. Apr. 28, 2017). Harris County’s emergency request for a stay of the order was rejected by the Fifth Circuit and by Justice Clarence Thomas on the Supreme Court in June. Harris County has started releasing misdemeanor arrestees and investing in reforming its bail system.
This decision will still have to be reviewed in full by the Fifth Circuit and likely the Supreme Court as well, and there are practical questions on implementation. Nonetheless, Judge Rosenthal’s order already has nationwide impact and implications for public defenders. The dynamics of plea negotiations, for example, are clearly different when the client is at home rather than a holding cell.
Similar challenges have been brought closer to home. In 2016, Judge Crabtree of the District of Kansas issued an injunction against the money bail system in the City of Dodge City, Kansas. The Court ordered Dodge City to release all non-warrant arrestees on municipal ordinance violations, because the use of a secured bail as a condition of release “implicates the protections of the Equal Protection Clause when such condition is applied to the indigent person.” Martinez v. City of Dodge City, No. 15-CV-9344-DDC-TJJ (D. Kan. Apr. 26, 2016). These decisions show that while the influence of wealth on the criminal justice system is deep and pervasive, the poor and the wealthy alike may soon have an equal opportunity to fight their charges outside the confines of a jail.

For more information:
Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (2016), available at

Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization (2016), available at

Full Decision from Judge Lee H. Rosenthal available at

---Contributed by David Huang, Stanford Law 2019

Sunday, July 2, 2017

We hold these truths . . .

Happy Fourth of July to all of our patriotic colleagues who have dedicated their lives to defending our Nation's Constitution!

In honor of the holiday, a poem from Harlem Renaissance Poet Claude McKay:

By Claude McKay 

Although she feeds me bread of bitterness,
And sinks into my throat her tiger’s tooth,
Stealing my breath of life, I will confess
I love this cultured hell that tests my youth.
Her vigor flows like tides into my blood,
Giving me strength erect against her hate,
Her bigness sweeps my being like a flood.
Yet, as a rebel fronts a king in state,
I stand within her walls with not a shred
Of terror, malice, not a word of jeer.
Darkly I gaze into the days ahead,
And see her might and granite wonders there,
Beneath the touch of Time’s unerring hand,
Like priceless treasures sinking in the sand.
For more poems about this land we call home, check out:
I Am Waiting, by Lawrence Ferlinghetti