Fifth Amendment

December 14, 2018

Discovery in Federal Criminal Cases: Rules Versus Reality

I am currently plowing through the “discovery” in a federal criminal case brought against my client here in Georgia. Discovery is the word we use to describe the evidence or exhibits that prosecutors are obligated to hand over to the defense lawyer at the beginning of a criminal case. Going through all these materials in my current federal case reminds me of what I’ve learned over the years, and how the discovery “rules” are often far different than what really happens in criminal cases.

One of the biggest “rules” is based on a Supreme Court decision from 1963, the famous case of Brady v. Maryland, 373 U.S. 83(1963). This rule applies to both federal criminal cases and those in the state court systems. The prosecutors conveniently “forgot” to hand over to defense counsel a statement made by Brady’s co-defendant that Brady did not kill the victim, the other guy did it. The Supreme Court said that suppression by the prosecution of evidence favorable to an accused who has asked for it violates due process if the evidence is “material” to guilt or to punishment, and it does not matter whether the prosecutor acted in good faith or bad faith. Seems kind of simple, right, if the AUSA or DA has something which shows the the Defendant did not do the crime or should not be punished so severely, the “due process clause” from our wonderful Fifth Amendment demands that the prosecutor give it up.

Now, here’s the reality, and I’ve always thought it is similar to the old expression about letting the fox guard the henhouse. Lawyers, by our very natures, are competitive people. We want to win. Human nature tells us that if a prosecutor has evidence that undercuts his or her case, that DA or AUSA is less likely to want to turn it over than a more independent person. But, here’s the crazy part of the “rule” as it has been modified over the years. The DA or AUSA is the person who decides to turn it over (see what I mean about the fox guarding, etc). Defense counsel might never even know about the exculpatory stuff if the prosecutor (and his or her agents) successfully bury the materials in files that are never turned over. Even “good” prosecutors can fail to appreciate how some evidence or information is exculpatory, because they are looking at everything through a different lens than the criminal defense attorney.

December 6, 2018

Federal Gun Case from Alabama Contains Challenge to Dumb Double-Jeopardy Rule

by Kish Law

Lots of people facing federal criminal charges are surprised by some rules that are based on decisions from the United States Supreme Court. One of the dumbest rules that confounds most regular folks is what lawyers call the “dual sovereignty exception” to the Constitutional protection against double jeopardy. Even school kids know that part of the Fifth Amendment to our Constitution guarantees that no one shall “be twice put in jeopardy for the same offense.” However, many years ago the Supreme Court came up with the fiction that a State (like Georgia, or Alabama) is a separate “sovereign” or government from the very different “sovereign” that is the government of the United States itself. In other words, the feds are different from the states. The unfortunate corollary to this principle of separate sovereigns is that you can win a criminal case in federal court, and a state can bring the very same charge against you without violating the double jeopardy rule. First time I had this happen, I was livid, for we’d cheated the other side fair and square in the first State-court trial and it seemed so grossly unfair to let the feds have a second whack at my client.

So, the Supreme Court has a new case that was argued today that might be the vehicle through which they change this dumb old dual-sovereignty double jeopardy rule. The case is Terance Gamble v. United States. The case began in 2015, when Gamble was pulled over by police for having a faulty headlight. The cop smelled weed, searched Gamble’s car, and found two bags and a gun. The great State of Alabama charged Gamble with violating state drug laws and with being a previously convicted felon in possession of a firearm. Mr. G. got one year in prison. Then the feds picked up the exact same case, and brought the exact same charge of being a felon in possession of a firearm. Mr. G. got almost 4 additional years for the federal case, was understandably pissed, and appealed. In kind of a surprising move, the Supreme Court finally accepted the case for review. Continue reading

February 22, 2017

The Brady Rule: The Fox Guards the Henhouse

by Kish Law

Of all the rules governing criminal cases I have learned over the past 33 years, the Brady rule is the most troubling. Brady teaches that the government violates the due process rights of a criminal Defendant if the prosecution fails to reveal exculpatory evidence to the defense. Unfortunately, it is the prosecutor and the police who decide whether to turn over “exculpatory” evidence to the defense lawyer. In other words, if the prosecutor in a highly contested case finds out that there is evidence tending to show that the Defendant is innocent, the prosecutor gets to decide whether to tell the defense lawyer about that information. This is obviously very similar to the old saying about letting the fox guard the henhouse. Prosecutors are like most lawyers, they like to win, and even the most honest and even-handed prosecutor will not see the evidence the same way as does the defense attorney. As a result, violations of the Brady rule are legion. The quote in the next paragraph comes from a pair of Brady cases that will be argued in the Supreme Court next month, Overton v. United States and Turner v. United States.

“Fifty years after Brady was decided, prosecutors still routinely withhold exculpatory and impeachment evidence from defendants. See Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. TEX. L. REV. 685, 688 (2006) (“Numerous studies have documented widespread and egregious Brady violations.”); Janet C. Hoeffel, Prosecutorial Discretion at the Core: The Good Prosecutor Meets Brady, 109 PENN. ST. L. REV. 1133, 1148 (2005) (“Withholding favorable evidence … seems to be the norm.”). This stubborn, pernicious problem is not localized. See United States v. Olsen, 737 F.3d 625, 631 (9th Cir. 2013) (Kozinski, C.J., dissenting from denial of reh’g en banc) (citing cases). And Brady violations occur in all sorts of criminal cases, from capital murder cases to those involving white collar offenses. See Tiffany M. Joslyn & Shana-Tara Regon, Faces of Brady: The Human Cost of Brady Violations, Champion, May 2013 (describing Brady violations in cases involving murder, bribery under the FCPA, cocaine trafficking, unlawful dispensation of prescriptions, and the like).

What happened in Overton and Turner is truly disturbing. A middle-aged woman was brutally murdered in a “bad” neighborhood of Washington, DC in 1984. Seven men went to trial, were found guilty, and have spent the last three decades in prison after being convicted. The prosecution’s theory at trial was that the victim died at the hands of a gang attack that was witnessed by several individuals. Years after the convictions, the Defendants (and their ever-vigilant attorneys) discovered a raft of helpful and exculpatory evidence that the prosecutors and police officials had withheld. 1) The police and lead prosecutor got statements from witnesses who implicated another person, McMillan, as being on the scene and acting suspiciously. McMillan later attacked other middle-aged women and was convicted for those crimes that had disturbing similarities to the case in question. 2) The prosecution’s theory always was that the crime was a group attack, even though the prosecutor had suppressed evidence from other witnesses that only one or two perpetrators could have been in the area where the victim was attacked. 3) The witnesses called by the prosecutors at trial had lots of problems that the prosecutors decided to keep from the defense, issues such as one was high on PCP when she identified suspects, that same witness asked her friend (another witness) to lie, another witness was physically threatened by the police when she did not say what they wanted her to say. All of this withheld evidence likely would have been helpful to the defense. Oh, I forgot to mention, the jury acquitted two Defendants who heard from these same prosecution witnesses, and needed 40-50 votes before it could convict two of the others.

The legal issue in these cases is whether the withheld evidence was “material”. Under the Brady rule, a Defendant does not get a new trial when the prosecutor suppresses evidence unless that evidence was important enough so that it would have impacted the jury. The exceptionally talented lawyers representing the Defendants contend that the lower courts used an improperly harsh “materiality” standard, and that the case should be sent back for further proceedings.

Cases like this keep me up at night. Like most lawyers in my business, I have seen situations where prosecutors hold back on exculpatory information. I recall one case where an otherwise very honest and honorable prosecutor knew about yet failed to tell me that his main witness had been caught telling an identical lie to what she said about my client. Only by dumb luck did I discover the information shortly before trial. My client was acquitted, but nothing ever happened to this prosecutor. Hopefully, the Supreme Court will send the message when it decides these two cases in the near future.

July 8, 2010

Cunningham: Eleventh Circuit Joins Other Courts of Appeals in Holding That Alleged Violations of Supervised Release Do Not Implicate Jury Trial and Evidentiary Standards as Applied by Apprendi and Blakely

by Kish Law

In late May, the Eleventh Circuit Court of Appeals, which hears appeals from federal cases in Florida, Georgia, and Alabama, decided U.S. v. Cunningham. The Court held that the federal statute that provides for revocation of supervised release is constitutional under the Fifth and Sixth Amendments, despite its provision for reimprisonment of a criminal defendant based upon conduct that is not proven to a jury beyond a reasonable doubt.

The supervised release revocation statute is at 18 U.S.C. § 3583(e)(3). It permits a district court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release” upon a finding “by a preponderance of the evidence that the defendant violated a condition of supervised release.”

In 2000, in Apprendi v. New Jersey, the Supreme Court held that, other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In 2004, the Supreme Court explained in Blakely v. Washington that the “statutory maximum” is the maximum sentence a judge may impose based upon the facts reflected in the jury verdict or admitted by the defendant.