Tuesday, June 30, 2020

Judicial endorsement of police "experts"

When are police officers "experts," and what message does their designation as experts send to the jury?

In United States v. Cristerna-Gonzalez, the Tenth Circuit clarified the law governing “expert” testimony by the police.

First, the Court clarified the boundary between “Opinion Testimony by Lay Witnesses,” Fed. R. Evid. 701, and “Testimony by Expert Witnesses,” Fed. R. Evid. 702. The lay opinion rule “does not permit a lay witness to express an opinion as to matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness.” This means that “knowledge derived from previous professional experience falls squarely within the scope of Rule 702 [governing expert testimony] and thus by definition outside of Rule 701 [lay opinion testimony].” In the context of police testimony purporting to interpret drug code language, “testimony based on knowledge derived from the investigation of the case at hand is typically regarded as lay testimony, opinion testimony premised on the officer’s professional experience as a whole is expert testimony.” Although not addressed in Cristerna-Gonzalez, the lay/expert boundary is crucial because it determines whether a summary of expert testimony must be provided and whether Daubert is implicated.

Second, citing a federal rules of evidence treatise and the ABA’s Civil Trial Standards, the Cristerna-Gonzalez panel signaled its disapproval of the common prosecution tactic of causing the trial judge to endorse a witness as an “expert” in front of the jury. The panel cited particularly helpful language from the comment to the relevant ABA Civil Trial Standard:
[T]here is no need for the court to announce to the jury that it has found that a witness is an expert or that expert testimony will be permitted. The use of the term “expert” may appear to a jury to be a kind of judicial imprimatur that favors the witness. Because expert testimony is not entitled to greater weight than other testimony, the practice of securing what may appear to be a judicial endorsement is undesirable.
The takeaway?

1. Object at trial to expert testimony from police officers if the government did not comply with the notice requirements of Rule 16 or any pretrial scheduling order.

2. Has there been notice? Before trial, challenge the officer's qualifications and the basis for his or her proposed testimony (is it really based on sufficient facts or data?). In other words, put the government through its Rule 702/Daubert paces.

3. Did you lose that challenge? Move the district court in limine to prevent the government from seeking to have the court endorse the officer as an "expert" in front of the jury.

--Tom Bartee

Sunday, June 28, 2020

Tenth Circuit Breviaries

Fourth Amendment

In Hinkle v. Beckham County, Oklahoma, the Tenth Circuit held that an officer had probable cause to arrest based on information that the person arrested owned (or had a connection with) a trailer that had been reported stolen. It did not matter that the person informed the officer that the information was mistaken---"a soon-to-be-arrestee's bare proclamations of innocence" do not dissipate probable cause.

But the arrestee's body-cavity strip search upon admission into the jail was unreasonable under the Fourth Amendment. There was no justification at the time of the search--that is, no decision had been made that the arrestee would be placed in the jail's general population (in fact, he was placed in segregation), and there was no cause to believe that he was concealing evidence of a crime.

Evidentiary Issues

In United States v. Cristerna-Gonzalez, the Tenth Circuit affirmed Mr. Cristerna-Gonzalez's drug convictions, finding no reversible error in (1) the unobjected-to admission of expert law-enforcement testimony (no plain-error); (2) the unobjected-to admission of modus-operandi evidence consistent with Fed. R. Evid. 404(b) (no error, much less plain error); or (3) the admission over objection of irrelevant and prejudicial testimony suggesting a connection between this case and a notorious drug cartel (this was error, but it was harmless).

Sentencing: Procedural & Substantive Reasonableness

In United States v. Pena, a carjacking/gun/methamphetamine case, the Tenth Circuit affirmed an upward-departure sentence of 360 months' imprisonment--more than twice the high end of Mr. Pena's guidelines range. The district court addressed the statutory factors and adequately explained the sentence.

Thursday, June 25, 2020

Dig. Dig deeper.

Racial profiling. Excessive force. On the street, police misconduct looks obvious. In the courtroom, it's a different matter. How do we go about proving an officer's race-based motivation, or a police department's take-no-prisoners culture? There are loose lips and smoking guns out there. If we just dig deeply enough, we might find, for instance, that the department's training materials include this image (small print above image: "protecting and serving the POOP out of you"):

Or we might find that the department's training materials include---grossly-out-of-context---a link to a Chris Rock comedy routine replete with fake and real video clips of police officers beating Black people, including Rodney King.

That evidence came to light in the excessive-force case Wright v. City of Euclid.

Is the Euclid Police Department unique? I doubt it. If we look a little harder, what else might we find?

Remember, for instance, Foster v. Chatman, in which a state open-records request yielded documentary evidence that the prosecutors' peremptory strikes of Black prospective jurors at Timothy Foster's capital-murder trial were racially motivated.

Evidence is out there. We are unlikely to get it through criminal discovery. So let's put on our investigator pants and get to work.

Tuesday, June 23, 2020

The Doctrine of Chances and Rule 404(b)

While driving drunk in the wrong lane of a highway inside the Ute Mountain Ute Reservation, Timothy Merritt struck an oncoming car, killing one of that car’s passengers and injuring another. A jury convicted him of second-degree-murder and assault.

On appeal, the Tenth Circuit approved the admission at Merritt’s trial of three other DUI-related acts. Two of the other acts were prior convictions. The third was a drunk-driving arrest that occurred while Merritt was on bond in the federal case.

The Tenth Circuit reasoned that other acts tended to prove that Merritt had the requisite awareness of the serious risk of harm associated with drunk driving, rendering his decision to drive reckless and wanton, thereby supporting a finding of malice aforethought. The Tenth Circuit rejected Merritt’s argument that driving drunk does not evince an awareness of the riskiness but rather suggests the opposite.

In assessing the admissibility of the drunk driving incident while on bond, the Tenth Circuit considered the government’s argument that the similarity of that incident to the charged crime implicated the “doctrine of chances.” Under this doctrine, the similarity of the charged conduct to other conduct increases the likelihood that the incidents are not innocent random events. After seemingly signaling that the doctrine might apply, the Court decided not to decide, reasoning that any error in the admission of the evidence was harmless.

Applying the doctrine of chances to prove mens rea is fraught with the danger that the jury will misuse the other-crimes evidence. As with other-crimes evidence generally, the problem is one of dual relevance: the evidence supports the improper inference of bad character as well as the proper inference of intent. The improper chain of inference, prohibited by FRE 404(b), has two steps. Step One involves inferring from a past crime that the defendant has a bad character. Of course, this inference is itself empirically weak. Beyond that, the inference creates the risk that the jury might convict just to punish the defendant for her criminal past. Step Two involves inferring from this bad character that the defendant must be guilty. This creates the risk that the jury will overvalue the bad character evidence, failing to recognize that bad character is empirically a poor predictor of behavior on a particular occasion.

When used to prove the actus reus (as opposed to the mens rea) of a crime, the doctrine of chances does not necessarily implicate character concerns. A classic use of the doctrine is to prove that an initially unexplained death that is discovered to be similar to other deaths associated with the defendant was actually a homicide. The warrant for this inference is that common sense tells us that these similar deaths are very unlikely to represent mere coincidences. This use of the doctrine certainly implies the defendant’s bad character, but that implication is a side effect, not a necessary link in the inferential chain. But when the doctrine of chances is ostensibly used to prove mens rea, the close connection between a person’s intent and their character makes it unlikely that a lay jury could follow a limiting instruction—even crafting an intelligible instruction conveying this distinction would be difficult. If nothing else, Merritt at least flags the issue, allowing defense lawyers to anticipate and prepare to battle its use.

---Tom Bartee

Sunday, June 21, 2020

Tenth Circuit Breviaries

Fourth Amendment (traffic stop)

The 15 minutes it took an officer to gather information from the El Paso Intelligence Center (EPIC) did not unreasonably extend a traffic stop where the parties agreed that the officer had reasonable suspicion of drug trafficking. So concluded the Tenth Circuit in United States v. Morales, reversing the district court's suppression order.

Fifth Amendment (confessions)

An FBI agent interviewed Shane Young in a county jail. The agent showed Mr. Young a federal warrant for his arrest and said "I'm on your side." The agent proceeded to advise Mr. Young that he had talked to the judge who had reviewed the case, and that Mr. Young could "buy down" his time with the judge by giving information. The agent also misadvised Mr. Young about the amount of time he was facing. These were false representations of law and fact that rendered Mr. Young's resulting statements involuntary, and the district court should have granted his motion to suppress. United States v. Young.

Sixth Amendment (counsel)

A mid-trial waiver of the right to counsel was not made knowingly and intelligently in United States v. Hamett. The district court (1) failed to discuss the the charges with Mr. Hamett and refused to give him time to review the elements as set out in the jury instructions before he decided to waive counsel; (2) incorrectly advised Mr. Hamett that he was facing up to 20 years' imprisonment, when in fact one charge against him carried a maximum of life imprisonment; and (3) failed to apprise Mr. Hamett of any possible defenses.

Fed. R. Evid. 404(b)

In United States v. Merritt, a DUI-based second-degree murder case, the Tenth Circuit approved the admission of other DUI-related incidents at trial. We will blog about this case in more detail later this week.

Collateral Estoppel

In 2016, in United States v. Arterbury, a district court in Oklahoma suppressed child pornography seized as a result of the PlayPen NIT warrant, finding that the warrant was void ab initio, and therefore Leon's good-faith exception did not apply. The government appealed, but then dismissed its appeal and asked the district court to dismiss the indictment against Mr. Arterbury without prejudice. The district court granted the motion.

Fast forward to 2017 and United States v. Workman, 863 F.3d 1313 (10th Cir. 2017), an appeal from the district court of Colorado. There the Tenth Circuit held that Leon's good-faith exception applied to the execution of the same PlayPen NIT warrant.

In 2018, the government secured a second indictment against Mr. Arterbury based on the same evidence as the first indictment. Mr. Arterbury moved the district court to enforce its original suppression order. The district court denied the motion; Mr. Arterbury entered a conditional plea and appealed.

In 2020, the Tenth Circuit held that the district court erred in declining to enforce its original suppression order, because Mr. Arterbury had "established the elements of federal criminal collateral estoppel under the common law." The what elements under the what law? Read Arterbury for a primer on the difference between collateral estoppel based on double jeopardy/due process, and collateral estoppel based on the federal common law.

Thursday, June 11, 2020

Rethinking traffic stops

Whether you're a pedestrian stopped for walking in the street, a bicyclist stopped for riding on the sidewalk, or a driver stopped for anything from a busted taillight to speeding, traffic stops can be annoying. Or frightening. Or deadly.

Why does this keep happening?

Criminal law: the stinginess of the exclusionary rule

The exclusionary rule was designed to deter police misconduct during traffic stops and otherwise. It's a start. But it will never be enough, for a host of reasons, including the fact that the rule is defined by judges and justices who are far removed from the reality of the streets. See Hudson v. Michigan, 547 U.S. 586, 599 (2006) (expansion of exclusionary rule not necessary to deter violations of knock-and-announce rule because "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously").

Civil law: qualified immunity

In Hudson, Justice Scalia cheerfully assured us that the exclusionary rule did not need to be expanded because, "[a]s far as we know, civil liability is an effective deterrent" to police misconduct. Id. at 598.

Earlier this week, the Fourth Circuit put the lie to that nonsense in a decision decrying how perverted the qualified-immunity doctrine has become:
Wayne Jones was killed just over one year before the Ferguson, Missouri shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept. The district court’s grant of summary judgment on qualified immunity grounds is reversed, and the dismissal of that claim is hereby vacated.
Estate of Jones by Jones v. City of Martinsburg, W. Va, ___ F.3d ___, 2020 WL 3067925 (4th Cir. June 9, 2020).

Rethinking the law: eliminate traffic enforcement

As dewy-eyed lawyers, we want to believe that the courts and the constitution can remedy police violence. But maybe it's time to think beyond the courtroom walls. Can safe streets and sidewalks be achieved without the intervention of armed, militarized agents of the state? Talk amongst yourselves. And check out these statements from the Minneapolis group Our Streets Minneapolis, and the national group Safe Routes Partnership.

Sunday, June 7, 2020

Tenth Circuit Breviaries

Fourth Amendment

While an officer may ask a passenger for identification during a traffic stop, the passenger's failure or refusal to provide it does not establish probable cause for an arrest. This point of law is clearly established in the Tenth Circuit. And thus the district court properly denied an arresting officer qualified immunity in Corona v. Aguilar.

A district court must not "view the evidence in the light most favorable to the government" when deciding a motion to suppress. Rather, it must "assess the credibility of witnesses and determine the weight to give the evidence presented." So the Tenth Circuit reminded district courts in United States v. Goebel.

In Goebel, the Tenth Circuit also held that a police officer had reasonable suspicion to detain Mr. Goebel based on a combination of factors (that you can read for yourselves), and that the detention was not unreasonably prolonged. Nor was any delay causally linked to the officer's discovery of evidence. 

Fifth Amendment

A brief conversation on a public sidewalk between the officer and Mr. Goebel while Mr. Goebel was detained was not a custodial interrogation for Miranda purposes. And Mr. Goebel's other statements were Mirandized, knowing, and voluntary (and not incriminating in any event).


No plain error in United States v. Trujillo, where the district court accepted Mr. Trujillo's 18 U.S.C. § 922(g) guilty plea without advising him that he was required to know he was a felon to be convicted. This was not structural error (the Tenth Circuit disagrees with the Fourth Circuit here), and Mr. Trujillo failed to show (under the third plain-error prong) that absent the error, he would not have entered the plea (given his 6 prior felonies and 4 prior years in prison). And even if he had met that prong, he would lose under the fourth prong: "Where the evidence of Defendant's knowledge of his felony status is 'overwhelming and uncontroverted,' the real threat to the 'fairness, integrity, and public reputation of judicial proceedings' would be if Defendant were permitted to withdraw from a plea unequivocally supported by the facts and for which Defendant has no defense."

Sentencing: substantive reasonableness

In United States v. Sandoval, the Tenth Circuit rejected Mr. Sandoval's claim that his 27-month within-guideline prison sentence for assault was substantively unreasonable. More specifically, the Circuit held that USSG  § 2A2.2, the assault guideline, is not manifestly unreasonable because it does not distinguish between intentional and reckless conduct. Nor was a downward variance required by the fact that Mr. Sandoval's adjusted offense level for a reckless assault was only one level below the base offense level for involuntary manslaughter. 

Thursday, June 4, 2020

A Police State in America?

The Insurrection Act of 1807. The Anti Riot Act of 1968. What are these tools, and when can our government use them against us, the people?

In an opinion piece today in the New York Times, Federal Public Defenders Lisa Lorish and Juval Scott trace the history of these provisions and warn us about their reach. AG Barr has threatened to criminally charge protesters under the Anti Riot Act---a law that one district court has found substantially infringes on the constitutional rights to free speech and free assembly. Take heed, defenders, and get ready.

Wednesday, June 3, 2020

Joint Statement From the Federal Defenders on the Killing of George Floyd

The moral arc of the universe, as Dr. Martin Luther King Jr. said, bends towards justice. And yet, we all saw that arc snap again under a police officer’s white knee on George Floyd’s Black neck for eight minutes and forty-six seconds. That knee has been placed on too many Black necks before and too often without repercussions.

This time must be different. While we can kneel in solidarity with Mr. Floyd, we also must stand up and demand that racism, overt and implicit, be acknowledged and confronted.

As federal public and community defenders, we represent the overwhelming majority of those charged with crimes in federal court, most of whom are minorities, of all colors and orientations. We have witnessed “wars” on drugs and crime become dog whistles for hate and racism. Intentions to make communities safe are hijacked by other insidious agendas. The war on crime is a new Jim Crow that permeates our criminal justice system. Daily, we see charges that are too harsh, sentences that are too long, and a system that turns a blind eye to oppressive structural racism because it seems to fear “too much justice.”

George Floyd died face down, gasping and begging to breathe. It is well beyond time for us all to say, “Enough.”

We are better than this; we can be just and empathetic. We can do what is right and what is moral. We can keep communities safe by holding out our hand to help, aware of our own failings and biases.

And in this crucible of anger, we take a breath, and begin to repair the moral arc and bend it back towards justice.

As federal defenders, we stand with many like George Floyd who have been held down and denied their humanity. It is our job, our calling. It is our privilege. For George Floyd and all of our clients, we renew our longstanding commitment to fight daily for equal justice.

* * * * *

Read the statement with signatures on fd.org here.