Tuesday, February 27, 2018


Over the past 30 years, the Kansas Federal Public Defender office has grown in size, scope, and skill due in large part to one person: Bec, our Administrative Officer extraordinaire. When Bec first came to work for the Kansas FPD in 1987, we were a scrappy office of 8 employees. Today we number 44. She built the FPD.  

She calls herself a bean counter. In truth, she is a public defender in every sense of the word. We can walk into court and represent our clients because Bec makes sure we have the resources and structure we need. Bec supports and protects us, and our clients, in ways we don't even know. The wheels turn, and keep turning, every day because of Bec.

And we are not the only beneficiaries of Bec's wisdom and patience. Over the years she has trained and advised defender offices across the country.

Bec has outlasted lawyers, judges, office relocations, sequestration, and our worst fashion choices. She brings order to our chaos, reason to our frivolity.

The amazing thing is that despite 30 years of this she is (or at least seems to us) far too young and essential to retire. And yet that is what she is going to do.

Bec: Thank you, to infinity, thank you. You have more than earned your escape. Our hearts are broken and we will miss you. But we can't wait to see what you do next. Bon voyage!

bindweed, corridor, garden

Sunday, February 25, 2018

What are you waiving in your client's plea agreement? And why?

Last week, the Supreme Court decided United States v. Class, holding that Mr. Class did not waive his right to challenge the constitutionality of the statute under which he pleaded guilty merely by pleading guilty.

Oh goody! Does that mean we don't have to explicitly reserve the right to appeal constitutional (or other) issues in our plea agreements?

No! No! Please, no.

Mr. Class was in a unique position. He had waived some specific rights and retained others, but his plea agreement did not mention his pretrial motion to dismiss the gun charges against him on due-process and Second Amendment grounds. This was a challenge to the validity of the statute of conviction that was simply outside the scope of the agreement's specific waivers. The only question before the Supreme Court was therefore whether the guilty plea itself implicitly waived the issue and barred his appeal. The Supreme Court held that it did not. Mr. Class would be in a very different position had he pleaded guilty under a slightly different agreement---for instance, one with a nonspecific appeal waiver.

What lessons can we learn from Class? Not many. As Justice Alito complains in his dissenting opinion, the majority does not offer much guidance on interpreting explicit waivers, and its loose language "will bedevil the lower courts." So where do we go from here?

First and foremost, make that plea explicitly conditional and expressly reserve the right to appeal any dispositive pretrial motions that you intend to appeal. Don't take the risk of relying on Class to open any appeal doors that have previously been closed. Those doors remain closed.

And consider kicking the waiver habit altogether. Not all jurisdictions use appeal waivers. A 2013 national waiver survey determined that prosecutors do not demand any appeal or collateral-attack waivers in their plea agreements in 17 out of the 94 federal judicial districts. Susan R. Klein, Aleza S. Remis, Donna Lee Elm, Waiving the Criminal Justice System: An Empirical and Constitutional Analysis, 52 AM. CRIM. L. REV. 73 (2015). And many other districts use only limited waivers. Id.

What might a limited waiver look like? It might exclude (that is, reserve the right to appeal), for example, constitutional sentencing claims and plain guideline error. And it might reserve the right to file sentence-reduction motions based on future retroactive amendments to the guidelines. Remember, a plea agreement is just a contract---we can control its terms.

Finally, let's think about what we're getting in exchange for our waivers. Is that third acceptance point really worth waiving all future remedies for a sentence that has yet to be pronounced? No---your client should get that point if otherwise qualified. The application notes to USSG § 3E1.1 state that the government "should not withhold" a § 3E1.1(b) motion "based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal." USSG § 3E1.1, comment. (n.6).

Let's not shut any more doors than we absolutely have to, and not unless we're gaining a measurable benefit for our clients.

black-and-white, decision, doors

Monday, February 19, 2018

Cross-border data and the contours of law enforcement's reach

As you’ve likely seen if not already digested, there has been substantial chatter lately regarding United States v. Microsoft (also known as “the Microsoft Ireland case”), which is scheduled for oral argument before the Supreme Court next week. If you’ve fallen behind, discourse on this case may be found here, here, and here.

To quickly summarize, in 2013, under the Stored Communications Act (SCA), the U.S. government sought a warrant to seize from Microsoft the contents of a customer’s email account that the government believed was being used for drug trafficking in or into the United States. Microsoft turned over data stored in the United States (including the address book linked to the email account), but moved to quash the search warrant to the extent that the warrant directed Microsoft to produce content stored on a server located in Ireland. The district court denied the motion to quash, but the Second Circuit reversed, vacated, and remanded the matter, finding that the district court lacked the authority to enforce the warrant against Microsoft given that the SCA “[n]either explicitly or implicitly” envisions “the application of its warrant provisions overseas.”

Image result for global reachOn February 27, the Supreme Court will hear oral arguments to address whether federal courts have the authority under the SCA to issue warrants for the search and seizure of foreign-stored data, and whether the presumption against extraterritoriality and the concomitant interests of the international community, for example, forbid such action.
Aside from the permissible scope of the SCA, the arguments and authorities presented by the parties—and those found within the 23 amicus briefs—as well as the ultimate decision in this case, may prove relevant for challenging warrants seeking electronically-stored information (ESI) from unknown locations under the recently amended Rule 41 (which we have previously blogged about here). We know that much of the impetus behind Rule 41’s changes regarding searches for ESI derived from the government’s inability to establish the location of a target, placing a search and seizure outside the scope of Rule 41’s then-jurisdictional limitations (not to mention the Fourth Amendment’s particularity requirements). Rule 41 now purports to authorize a magistrate or district court judge to issue a warrant that permits law enforcement to use remote access to search and seize electronic storage media located outside the judge’s district.

But may a judge do so knowing that the government is undoubtedly seeking authorization to search and seize electronic data located not only outside of its district, but also outside of the United States? Rule 41, as amended, does not explicitly address the international conundrum, and given that it was passed under the guise of a procedural rule change, it is lacking any delicate balancing of competing interests by Congress.

Moreover, the subcommittee notes attached to Rule 41’s amendment submitted by the Judicial Conference (the policy-making arm of the federal judiciary) readily acknowledges that the “[t]he amendment [to Rule 41] does not address constitutional questions, such as the specificity of description that the Fourth Amendment may require . . . leaving the application of this and other constitutional standards to ongoing case law development.”

Microsoft will not answer all questions about law enforcement’s international reach, but it hopefully will provide us with at least some insight into the High Court’s thinking in this complex area of search-and-seizure law.

Wednesday, February 14, 2018

A (tiny) peek inside DOJ's discovery manual

Thanks to the National Association of Criminal Defense Lawyers, we can now read a tiny portion* of the Justice Department's Federal Criminal Discovery Blue Book, unsealed by a D.C. District Court. The court denied full disclosure of the 265-page manual on work-product grounds.

The disclosed portions (select excerpts from a mere 17 pages) don't tell us much, but they do restate important Giglio policies---though at times with more of an eye toward keeping defense lawyers from "improperly introduc[ing]" impeachment information than toward complying with constitutional mandates:

More importantly, the excerpted policies may provide additional fodder for claims that the government has failed in its discovery duties.

*Available through a link on NACDL's news release.

Sunday, February 11, 2018

Young adults: not so adult after all

The law may currently view 18-25-year-olds as adults, but we as their lawyers should not—no matter the charges, no matter the court, and no matter the issues that we are litigating.

Thanks to a number of landmark United States Supreme Court decisions handed down over the last decade-and-a-half, it is well established that the wealth of characteristics and circumstances attendant to a juvenile defendant’s age necessarily color a court’s suppression determinations and may, among other things, provide decisive mitigation for sentencing purposes.

Related imageThese decisions dating back to the Court’s 2005 decision in Roper v. Simmons (declaring the death penalty unconstitutional for offenders under the age of 18 at the time of the offense) are grounded in scientific and social-science research that focuses largely on the effects of the brain’s maturation process on youth under the age of 18. Specifically, the Court has recognized that there are fundamental differences between a juvenile and an adult brain. And those differences—accounting for a less developed character, immaturity, vulnerability and susceptibility to negative influences and outside pressures, transient rashness, and proclivity for risk, to name a few—not only diminish a juvenile's culpability but also enhance the prospect of reform as the years go by and neurological development occurs. This line of Supreme Court cases is therefore critical to any juvenile accused of committing a crime.

Importantly, though, the consensus in the scientific community today is that these diminished-culpability concepts also apply to those who are later in their adolescence and into their mid-twenties. On February 5, 2018, the American Bar Association’s House of Delegates recognized this significant consensus in the scientific community, passing a resolution calling on jurisdictions that still have capital punishment to prohibit its imposition against those who were 21 years of age or younger at the time of the offense. The ABA’s resolution notes that while neuroscience had played no part in Supreme Court decisions before 2000, "large-scale advances in the understanding of the human brain, have led to the current medical recognition that . . . profound neurodevelopmental growth continues even into a person’s mid to late twenties."

The ABA’s resolution provides a treasure trove of resources for anyone representing a youthful client. And so, too, does the August 2017 Order issued by Fayette County Circuit Judge Ernesto Scorsone declaring Kentucky’s death penalty statute unconstitutional on these grounds. (*Note: Judge Scorsone’s Order is currently percolating through Kentucky’s appellate courts.)

Youth matters; science and social science tells us so, as does common sense. 

Tuesday, February 6, 2018

ICE: Coming to a courthouse (and just about everywhere else) near you

Last month, ICE issued a new directive regarding enforcement actions in courthouses. The directive states that only targeted aliens will be subject to these actions, and that accompanying friends and families will---absent "special circumstances"---be left alone (though the directive warns that all decisions will be made on a "case-by-case basis"). Read the whole directive so you'll know what to expect in your municipal, state, and federal courthouses. And then read this ACLU resource for attorneys whose clients are approached by ICE in a courthouse.

In other ICE news, the agency recently contracted with Vigilant Solutions for access to that company's massive license-plate tracking database. In case you're wondering about the Fourth Amendment implications of such tracking, at least one district court says there are none. See United States v. Yang, No. 2:16-cr-231, 2018 WL 576827 (D. Nev. Jan. 25, 2018). Pay attention to the detailed factual findings in Yang and be prepared to distinguish them in your own Fourth Amendment attack on the use of this invasive tracking technology.

Hat tip 🎩 Laura Shaneyfelt.

Thursday, February 1, 2018

Why do innocent people plea guilty?

A recent opinion piece by public defender Jeffrey Stein does a nice job explaining why an innocent person would plea guilty:
You lay out options for your client. You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case. The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial. But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing.
And Stein explains what, for many of us is  a dreaded moment: when the judge asks if there is any reason why the court should not accept your client's offer to plea guilty:
You hesitate. You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence. My client faced an impossible choice and is just trying to avoid losing his life to prison.” But you stand by your client’s decision, which was made based on experiences and emotions only they can know. You reply: “No, your honor.” The marshals lead your shackled client to a cage behind the courtroom. And the judge moves on to the next case.