Articles Posted in Criminal Justice Issues

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I am reviewing the Discovery (meaning the evidence) in a somewhat old federal criminal case that has ties to both Atlanta and North Carolina.  My client is accused of a drug crime, and from the indictment and other materials it appears that the prosecutors contend that there is a mandatory minimum penalty of 5 years in custody, and up to a potential maximum of life in custody.  Obviously, this is a very serious matter.  While this case and the potential penalty are each very serious, the possible sentence caused me to reflect on how far the federal criminal system has come in the 37 years I have been involved.

I started in 1982, and way back then, there were no mandatory penalties, no Sentencing Guidelines, and anyone who got a custodial sentence for a federal crime generally was eligible for early release, or “parole.”  Things began to change in the middle of the 1980’s. Drug crimes started getting more violent.  Then, in 1984 Congress created those Sentencing Guidelines, a mandatory and overly mechanical system for imposing harsher and harsher penalties. At the same time, they did away with parole, and our clients entered a system where they had to serve the entire sentence, other than a potential small reduction for “good behavior.” Continue reading

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I happen to like people like Rodney “Rod” Class, even if I often  disagree with them.  Some people call him a “gun nut.”  He refers to himself as a “constitutional bounty hunter.”  He likes his guns, and has a very healthy distrust of government.  Rod’s case will be argued late next week in the Supreme Court, and the main issue is whether a guilty plea waives a challenge to the constitutionality of the criminal offense to which the person entered a plea.  I wrote about Rod’s case last Winter, and sort of predicted it might be accepted for review by the Supreme Court.  Turns out it was accepted, and it is a big deal in our business.

Without guilty pleas, the criminal justice system would likely collapse.  That is one big reason why this case is important.  Mr. Class, foolishly representing himself, pled guilty to a federal crime of possessing “readily available” firearms on the property of the U.S. Capitol grounds.  Now, I happen to agree with a law that says no one should have a firearm on such property, but Rod thought he was within his rights.  Nevertheless, he pled guilty, got a “time served” sentence, which normally would have ended the situation.  But, as I mentioned above, Rod is an “interesting” person.  He wanted to continue his fight against this particular law up through the appellate courts.  He wanted to challenge whether it is a crime for a law-abiding citizen to have a constitutionally protected gun, on the property of his own Capitol, for gosh sakes! Continue reading

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A recent state court criminal case here in Atlanta is very similar to a federal criminal case we handled in Savannah last year.  In each case, one person made a demand against another person, and the demand arose out of civil litigation.  Prosecutors in each case alleged that the “demand” was actually the crime of “extortion.”  The recent case here in Atlanta was handled by our friend Brian Steel, who is an excellent lawyer.  Just like in our case last year in Savannah, Brian got the charges dismissed against his client.  You can read about the recent Atlanta case here.

These cases came about because of statutes (which some people refer to as “laws”) that make it a crime to engage in extortion.  Generally, it is illegal to threaten another person and ask that person to pay you money in return for which you will take some action that benefits that other person.  However, (and this is the big exception) it is NOT illegal to make such a threat (or “demand”) if you have every right to make such a claim.  In other words, if someone damages your car, it is OK for you (or your lawyer) to send a “demand” to the person who wrecked your auto, seeking money, and threatening a lawsuit if they do not comply with the demand.  It is NOT OK to send a demand if the person never caused you any damage at all. Continue reading

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We represent many people who are under investigation for (or who later face) federal criminal charges.  In the past week the national news media are having spasms over the fact that the head of the FBI decided to publicly acknowledge that his agents are looking at emails scoured from a laptop sometimes used by the well-named Anthony Weiner, and that these emails may be connected to former Secretary of State Hillary Clinton (who, in case you have not heard it, is running for President).

I am fascinated by how politics intersects with the criminal justice system.  Over the past 34 years I have represented people involved in politics who either were charged with or investigated for crimes, both federal crimes and state criminal accusations.  While my cases are obviously different from whatever challenges are facing attorneys for Hillary Clinton and others, there are also striking similarities. Continue reading

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Over the past 20 years or so, there has been a real push to protect the rights of victims in the criminal justice system. People who are victims of crime now have the right to speak in court, to receive restitution, and to be informed about all phases of a criminal case against the person who victimized them in the first place. In federal criminal cases, where we do a bulk of our work, this trend to give victims more rights culminated in the 2004 Crime Victims Rights Act (CVRA). I have spoken to lawyer meetings around the country since 2004, pointing out how criminal defense attorneys need to account for the fact that victims are now more heavily involved in federal criminal cases.

A decision issued yesterday by the United States Court of Appeals here in Atlanta shows how even good laws like the CVRA can sometimes lead to bad consequences. The case is Jane Doe #1 and Jane Doe #2 v. Roy Black, et al. You can access the decision here.

A man named Epstein apparently sexually abused two minor girls. Epstein hired Roy Black, a prominent criminal defense attorney in Miami. Epstein faced potential criminal charges in both the local Miami courts as well as in the federal court system. Recall, the under the CVRA, victims have lots of rights, one of which is to be notified about all developments in a case. Victims also own the right to have their opinions heard when prosecutors are considering resolving a case with an agreement of some sort.

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Here at Kish & Lietz, we proudly represent individuals who are being investigated for or prosecuted with criminal offenses. A set of recent stories about how drug companies in Europe are refusing to provide the drugs used for executions reminded me about the difference between attorneys who represent individual people, versus those lawyers who mostly work for companies, or a movement, or an ideology. One of the recent death penalty drug stories can be found here.

I have almost always represented individual people during my legal career. It simply fits better with my personality, in that I sort of like the David-versus-Goliath story where it’s me and my client versus the entire system of prosecutors, federal agents and judges. The only things I need to concern myself with are my client and whatever is best for him or her and their family. However, when a lawyer represents a company, or a movement promoting an ideology, the individual person’s interests can sometimes get pushed to the side.
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Politics impacts many of our criminal cases here in Atlanta, throughout Georgia, Florida and Alabama, and in federal cases we do throughout the country. The intersection of politics and criminal prosecutions is especially prevalent in public corruption investigations. Prosecutors often have a political motive in “going after” a particular defendant, and many a prosecutor has made a name for him or herself by bagging a politician. These principles were on full display in the case against Tom Delay, the former Majority Leader of the United States House of Representatives. Last week, the Texas Court of Appeals reversed Delay’s convictions, ruling that he had not committed any crime. The ruling is here.

Delay was known as a hard-charging Republican advocate, whose nickname of “the Hammer” demonstrated his supposedly ruthless tactics. In 2002, Delay wanted to have the Texas Legislature turn solidly Republican, which it did. To accomplish, he asked for a series of corporate political contributions to a campaign committee. Afterwards, that solidly Republican legislature allegedly jiggered the voting districts so that the Texas federal delegation was far more likely to elect Republicans to the U.S. Congress. All well and good, hard nosed politics.
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In any criminal case, whether in Federal Court or one of the State Court systems, prosecutors are supposed to “play fair”. The Fifth Amendment to our dear Old Constitution enshrines this fairness obligation in what we lawyers call the “Due Process Clause.” Yesterday was the 50th anniversary of the day in 1963 when the United State Supreme Court issued its landmark ruling of Brady v. Maryland. That was the case in which, for the first time, the Supreme Court said that the Due Process Clause mandates that a prosecutor play fair by telling the defense about any exculpatory evidence, or evidence that tends to show that the defendant was not guilty. However, as basic as this obligation seems to be, I often wonder if our clients are that much better off than 50 years ago.

Like defendants in many famous Supreme Court cases, John Brady was no saint. On June 27, 1958, he and Donald Boblit robbed and killed a man named William Brooks. Boblit quickly confessed that he had strangled Brooks to death, and that he acted alone. However, the prosecutors handling the case against John Brady never informed the defense attorneys about this confession and never turned over the transcript of Boblit’s remarks.
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We handle lots of federal criminal cases. The various rules governing these cases are the same here in Georgia, they are the same when we take cases in Florida or Alabama, and we work under the same rules whenever we take cases in other parts of the country. Every so often, there are proposals to change the rules, and these amendments need to be first approved by the United States Supreme Court before they can be sent to Congress for ratification. Several weeks ago, the Supreme Court approved a series of rule changes that federal court practitioners need to keep up with in order to do the best job possible for their clients. Two of the bigger changes are discussed below.

One of the biggest rule changes concerns criminal cases involving immigration crimes or clients who are not U.S. Citizens Recall that under the landmark case of Padilla v. Kentucky, it is ineffective assistance of counsel if the lawyer does not tell his alien client that a guilty plea can have ramifications on the defendant’s immigration status. Rule 11 of the Federal Rules of Criminal Procedure discusses what happens when anybody pleads guilty to a crime in federal court. The Supreme Court approved a change which requires the judge, before accepting a guilty plea, to ensure that the defendant understands “that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” The rule change seems to provide protection to both defendants (who will be told about what might happen) and prosecutors (who can argue on appeal or habeas that any failure by defense counsel to provide the advice required by Padilla was harmless because the court gave the defendant the required notice).
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Our beloved Eleventh Circuit Court of Appeals, just down the street here in Atlanta, recently refused to join the ever-growing chorus of other courts that permit expert witness testimony to illuminate the real shortcomings in eyewitness identifications. A 30-year old ruling in the 11th Circuit said that the Court of Appeals can never overrule a trial judge who won’t allow a party to bring in an expert to explain to jurors the many problems with witness identification testimony. A criminal defendant recently asked the entire court to overturn this old decision, but the judges refused to take the case. Judge Rosemary Barkett issued a scathing dissent, which is worth reading. The case is US v. Owens, and can be found here

Judge Barkett first notes her amazement that the 11th Circuit wouldn’t join the majority of courts that allow such testimony. She sets out that all other federal courts of appeal, and 42 out of 50 states permit such testimony.

The many problems with eyewitness identification testimony, and recent social science research in this area, both call out for a new view, according to Judge Barkett. In the 30 years since the 11th Circuit outlawed such expert testimony, there have been over 2000 studies concerning the unreliability of eyewitness identification testimony. Judge Barkett quoted from a decision of another federal appellate court demonstrating that “the conclusions of the psychological studies are largely counter-intuitive, and serve to ‘explode common myths about an individual’s capacity for perception.'”

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