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A COUPLE OF LOOSE ENDS…

EXONERATION

Last year, 157 people nationwide were exonerated—a record number. That’s not just found not guilty, or even having convictions vacated because of trial errors. Exoneration means the defendants had been convicted, but the convictions were thrown out because the defendants were innocent.

It’s rare, but the number is increasing. Last week, the New Yorker magazine reported, “Amid growing awareness of the scope of the problem, the National Registry of Exonerations has gathered data on wrongful convictions going back to 1989, logging nearly 2,000, and the number is only a fraction of the convictions that are now being contested on the ground of innocence.

In the popular imagination, blame for wrongful convictions falls on individuals: the racist prosecutor, the crooked cop.” That does happen, but it’s mostly a made-for-TV storyline. More often, observers are coming to believe that “the problem is more fundamental—that the workings of the criminal-justice system itself have led even conscientious prosecutors, judges, and juries to put innocent people in prison.”

Academic researchers are also focusing on the systemic nature of many conviction errors. Richard A. Leo, a professor of law and psychology at the University of San Francisco, is quoted by the New Yorker as saying, “The way everyone talks about it is very legal—false confessions, police coercion, eyewitness I.D.s.” Leo believes “that the real issues are far broader, and include the adversarial structure of trials, confirmation bias, cultural notions about what indicates guilt, and a basic human tendency to attribute meaning to details that may be coincidental.

Professor Leo said he once tried to calculate the number of people involved in a wrongful conviction, from police officers and prosecutors to jurors: “It’s staggering,” he said, “it’s, like, fifty people involved in every single one.”

The system is the reason behind a Valpraiso University Law School professor’s suggestion last week that the United States government appoint a “Defender General.” Andrea Lyon wrote in the Indiana Lawyer that “there has been no voice at the policy table for the accused, incarcerated and paroled. We have an attorney general of the United States. We have a solicitor general of the United States. The only lawyer that is enshrined in the United States Constitution is referenced in the Sixth Amendment: ‘In all criminal prosecutions, the accused shall enjoy the right to… the Assistance of Counsel for his defence.’ Yet, the defense is not, and has not been a part of policy decisions regarding criminal justice matters. There is currently no office to represent criminal justice interests at the executive level the way that the attorney general does.”

Prof. Lyon argued that “defendants and defense attorneys need a representative at the executive level who can collaborate on major policy issues, establish national and statewide standards, and coordinate training efforts within the criminal justice system. This is a crucial voice that should be a regular part of the executive discourse and an ongoing resource for indigent defense.”

An Ex-Cop’s Remorse, The New Yorker, October 24, 2016

The United States needs a defender general, Indiana Lawyer, October 19, 2016

WHITE HOUSE STILL APPARENTLY PROMISING PUSH ON CLEMENCY

With the clemency petitions granted earlier this month, President Obama brought his total to 774 commutations granted over his two terms. It’s more either of his successors will likely grant. Hillary Clinton has not said whether she will make clemency a priority. Donald Trump definitely will not: he calls the offenders whose sentences have been commuted “bad dudes.”

In August, Deputy Attorney General Sally Q. Yates said the Office of Pardon Attorney will act on “every single drug petition” it has. There are still 13,275 petitions on file. Clemency Project 2014, a countrywide network of lawyers who vet petitions for the Pardon Attorney, promises to keep filing inmates’ requests until the last moment possible. So far, the Project has winnowed 33,000 applicants down to around 1,700 petitions considered grantable.

Obama has 77 days left in office. “The pressure is incredible, and it’s increasing exponentially,” according to Amy Povah, the founder of CAN-DO, a nonprofit that advocates for clemency applicants. “People are starting to panic.”

Obama is trying to fix the ‘war on drugs’ with clemency — but it won’t make a dent in mass incarceration, Business Insider (October 23, 2016)

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WATER PARK DEFENDANT LEFT HIGH AND DRY BY DEFENSE COUNSEL

Isaac Seabrooks and his confederate Nigel Butler were criminals, but not very good ones. They pulled into the public lot of Grapeland Water Park, a pretty cool-looking municipal park in Miami. But they weren’t swimmers. Instead, they had larceny on their minds.

While park ranger Qonsheka Smith watched them from her vantage point, Isaac sat in the car while Nigel broke into a pickup truck parked there. He scored some items of dubious value, including three rather cheap and throwaway handguns.

The two drove off while Qonsheka frantically called for backup, but the pair disappeared before the police arrived. Qonsheka wrote the whole thing off as a failed bust, but a few minutes after the police left, our bumbling anti-heroes returned to the lot. Qonsheka called the law again, and this time, the police blockaded the exit before Isaac and Nigel could leave.

Isaac ultimately was charged federally with being a felon-in-possession of guns and ammo, and possession of stolen firearms. He argued adamantly that he had not “possessed” anything, and that he told Nigel to not bring the guns and ammo into the car. The government argued that even if he had not possessed the firearms himself, the jury could find he aided and abetted Nigel.

Aiding and abetting is a pernicious statute. Ordinarily, any act a defendant can do may be done by directing someone else, or it may be done by acting with or under the direction of the someone else. The standard jury instruction says that a “defendant aids and abets another person if the defendant intentionally joins with a person to commit a crime.” In other words, Isaac was guilt of felon-in-possession if he aided and abetted Nigel.

Isacc’s lawyer objected generally to the instruction on the grounds that the evidence did not support it, but the district court overruled him. Not until appeal did Isaac advance a new and novel argument, that after Rosemond v. United States, in order to obtain an aiding and abetting instruction on the possession of stolen guns charge, the government must prove that he had “advance knowledge” that there were firearms in the victim’s truck and that Nigel intended to steal them.

If defense counsel does not properly preserve an objection to a mistake at trial, all is not lost. But mostly it is. Rule 52(b) of the Federal Rules of Criminal Procedure says that a “plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” That standard generally proves to be much more daunting that you might think.

This week, the 11th Circuit turned down Isaac’s appeal. Although Isaac’s lawyer objected to the aiding and abetting instruction at trial, the Court of Appeals said that “general objection to the sufficiency of the evidence did not preserve the more specific Rosemond claim he now raises.” To preserve an issue at trial for later consideration by an appellate court, a defendant must raise an objection that is sufficient to inform the trial court and government of the particular grounds upon which appellate relief will later be sought. A general objection or an objection on other grounds simply will not do.

Thus, the Court reviewed the Rosemond issue for “plain error” only. But why’s that such a big deal? Well, it’s like this. Regular appellate review of legal issues is de novo. Isaac argued that Rosemond requires that he have advance knowledge That is to say, ‘was the judge wrong?’ “Plain error” review, however, asks ‘was the judge really wrong?’ That is the difference, as Mark Twain once wrote, between ‘lightning’ and ‘lightning bug.’

Isaac argued that under Rosemond, the government had to prove both that he knew Nigel was going to possess a firearm and knew Nigel was a convicted felon. The government disagreed, arguing that all Isaac had to know was that Nigel was possessing a firearm.

The 11th Circuit admitted that neither it nor the Supreme Court had addressed the question of whether a defendant had to know the principal was a convicted felon was an essential element of the offense of aiding and abetting a § 922(g) violation. Other circuits that had addressed disagreed. The 9th says the “government need prove beyond a reasonable doubt that the putative aider and abettor knew the facts that make the principal’s conduct criminal.”  Four different circuits go the other way.

If Isaac’s lawyer had properly objected that the government had to prove Isaac knew Nigel was a felon, the 11th Circuit probably would have gone with the majority of the circuits. Isaac would not have been convicted of the felon-in-possession count, and he wouldn’t be doing 20 years. But because his lawyer did not object specifically on the Rosemond issue, the Circuit said “we need not decide this question because there can be no plain error when neither the Supreme Court nor this Court has resolved the issue and other circuits are split.”

United States v. Seabrooks, Case No. 15-10380 (11th Cir.   October 19, 2016)

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 I’M BORED

There’s nothing quite like ennui. Just ask Mike Walker.

On January 21, 2014, Mike was charged in with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. Secs. 922(g) and 924(e). He saw the judge for the first time three days later. His lawyer filed the usual motions, including a motion to suppress evidence obtained during a traffic stop. In June, the suppression motion was denied after an evidentiary hearing. Two weeks after the denial of the suppression motion, the government filed its motions in limine in anticipation of the then-scheduled June 30 trial date.

Then things started going sideways. Mike’s lawyer moved for a competency evaluation for his client, and then moved to withdraw as counsel. The district court granted the motions, directed the Attorney General to conduct an evaluation, and ordered that the report be returned “within 30 days or as soon as possible.” But, with usual Marshal Service efficiency, Mike was not transported to the Metropolitan Correctional Center (MCC) in Chicago, Illinois, for his evaluation until late August. On September 16, the district court granted MCC’s request for an extension to complete the evaluation, and ordered the report be filed by October 31. The court got the report via email on November 14, and, approximately 10 days later, conducted a competency hearing. On December 1, the court entered an order, finding that Mike was competent.

Mike’s new lawyer moved to dismiss the case, contending that the delay occasioned by the competency proceedings violated his right to a speedy trial under both the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(1) (“STA”), and the 6th Amendment. The district court denied the motions. Mike went to trial on January 5, 2015, and lost, getting a 20-year sentence.

This week, the 8th Circuit upheld the conviction. The decision that the STA was not violated is unremarkable, but the Court’s analysis of the 6th Amendment claim is worth considering.

The 6th Amendment guarantees a criminal defendant the right to a speedy trial, completely apart from the STA. To determine whether there has been a 6th Amendment violation, courts consider a test first adopted by the Supreme Court in Barker v. Wingo: (1) the length of delay; (2) the reason for the delay;(3) defendant’s assertion of his right; and (4) prejudice. If a defendant makes an initial showing of delay, the court will consider the extent to which the delay stretches beyond the “bare minimum” needed to trigger judicial examination. No one knows for sure what the “bare minimum” is, but some courts have suggested “a delay approaching a year.”

The 8th said delay of 11-1/2 months between Mike’s indictment and his trial “meets the threshold, but barely.” The Court found Mike was “responsible for most of the delay, which was occasioned by his motions to suppress evidence, for a competency evaluation, and to dismiss.” The Court found no evidence the government intentionally caused delay in order to gain a tactical advantage. As to the third factor, Mike did assert his speedy-trial right promptly, filing the claim on November 17, three days after MCC returned its report regarding his competency.

If defendants (and inmates filing post-conviction motions) fall down on anything, it’s proving they were prejudiced (hurt) by the conduct about which they’re complaining. Prejudice usually is the sine qua non of winning a motion. It certainly was here, and Mike dropped the ball. As to the “prejudice” factor, the best Mike could was to assert that he was prejudiced by the delay due to the “ennui of waiting.” He did not argue that his defense was impaired by the delay. The Court said that Mike’s “’ennui,’ without more, is insufficient to demonstrate prejudice. “

Prejudice means prejudice. It means that the bad stuff that happened hurt you somehow. In a 6th Amendment speedy trial sense, the delay had to somehow hurt your ability to defend yourself – witnesses disappearing, physical evidence deteriorating, memories fading… that kind of thing. No doubt jail is mind-numbingly boring, but that – without more – is a sad fact of life, not Barker v. Wingo prejudice.

United States v, Walker, Case No. 15-2921 (8th Circuit, Oct. 18, 2016)

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HOW MIGHT SENTENCING REFORM FARE IN THE ELECTION?

Republican presidential candidate Donald Trump has embraced of “law and order,” with all that portends for sentencing reform. But how about Democrat Hillary Clinton (who is considered by the polls to be leading)?

Presidential clemency has received more attention than usual this year after Obama began to make broad use of the power. Clinton has not said whether she would continue Obama’s trend of granting mass commutations to hundreds of prisoners at a time. Her platform includes “allowing current nonviolent prisoners to seek fairer sentences,” but she seldom mentions clemency.

Instead, Clinton supports halving current mandatory minimum sentences for nonviolent drug offenders, retroactively applying equal sentencing to crack and powder cocaine offenses, and eliminating nonviolent drug offenses from the Armed Career Criminal Act and violent-crime definitions. Also, drug-policy reform advocates hope Clinton would adopt a progressive stance on federal marijuana laws.

Surprisingly during the Vice Presidential Debate two weeks ago, Republican VP Candidate Mike Pence expressed his support for criminal justice reform. “I would say that we need to adopt criminal justice reform nationally. I had signed criminal justice reform in the state of Indiana senate, and very proud about it,” Pence said. “I worked in Congress on the Second Chance Act. We have got to do a better job recognizing and correcting the errors in the system that do reflect institutional bias in criminal justice.”

As Indiana governor, Pence pushed through reforms that cut sentences for some drug crimes, provided opportunities for drug rehabilitation, kept low-level, nonviolent offenders out of the state’s department of corrections, and provided mental health treatment for those who needed it.

Holly Harris, Executive Director of the US Justice Action Network, said Pence’s statement “breathes new life into criminal justice reform.”

Where Hillary Clinton stands on criminal justice reform, Business Insider (Oct. 8, 2016)

Pence supports national criminal justice reform that ‘removes institutional bias’, Americans for Tax Reform (Oct. 11, 2016)

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 WANT SOME CHEESE WITH THAT WHINE?

We’re generally sympathetic to the plight of defendants and the time they serve. Sold some crack? Downloaded some child porn? Ran a Ponzi scheme? Hey, nobody’s perfect, and – whatever the defendant did – we always support a common-sense sentence that doesn’t lock a guy or gal up forever. But we may have finally met a defendant whose offense – if not her whining – wants us to say, “Oh, shut up and do your time.” 

Jessica Mann was a bill collector, and by all accounts a pretty good one. She worked for a rotten-to-the-core collection agency named 4 Star, where she quickly became part of the “elite team.” The elites “employed particularly appalling collection tactics,” according to the judge, such as threatening old people with jail if they didn’t pay their bills, misrepresenting herself as a lawyer, and telling the people she called that they had to go to arbitration if they said they didn’t owe the money. None of it was true, but it made Jessica good as separating vulnerable people from their money. In a short while, she browbeat people into paying her firm over $350,000.

Charged with wire fraud, Jess cut a deal, agreeing that the facts set her sentencing range at 63 to 78 months. However, the government and Jess recognized that the November 2015 Guideline amendments would reduce the range to 41 to 51 months, and the parties agreed they would ask the Court to sentence her within that range.

When her sentencing rolled around, Jessica did not get 78 months. She did not get 51 months, or even 41 months. Instead, the judge – balancing “the very serious circumstances of her upbringing and of her adult life and how they may have impacted what she did” with the fact that “the offense in this case . . . took place over a period of years, where she was preying on people that were in worse shape than she” – sentenced her to 12 months and one day. On top of that, Jess was sentenced last May, but didn’t have to report to serve her sentence until September 19, 2016 (she’ll be home for the 4th of July 1017).

Starting out at 78 months and ending up with a year wasn’t good enough for Jess. A week after she reported to prison, she filed a 2255 motion complaining that she should have retroactively gotten Guidelines credit under the revamped USSG Sec. 3B1.2 for her “minimal role” in the conspiracy. Amendment 794 of the Guidelines, effective last November, greatly expanded the circumstances in which a defendant might earn a sentencing range reduction for a minor role.

We admit that even we have trouble mustering up much sympathy for bill collectors who threaten people with criminal prosecution to score a few bucks. We’ve gotten a few of those calls ourselves. Couple that with the incredible sweetheart sentence Jessica got and her unwillingness to accept the judgment, and we’re one part baffled at her post-conviction incompetence and two parts offended by her hubris. The old inmate aphorism is true: the defendant whose sentence is least complains the most.

This decision is remarkable as an illustration. Inmates, like Donald Trump, often think the system is “rigged” against their post-conviction motions. Sometimes it is. But Jessica has inadvertently provided us with a perfect exhibit of a 2255 motion that is bullshit on stilts. One only can hope that naïve Jessica, fresh off the bus, was misled by some long-time-down jailhouse lawyer eager to score a locker full of ramen noodle soup from the newbie inmate.

This week, her district court dismissed her 2255 motion, giving it much more attention than it deserved in a 26-page order. The usual fate for a 2255 like Jessica’s – which had more holes than a prairie dog town – is a two-sentence order of dismissal. Her judge, however, cared enough to take it seriously, and to fillet it as it deserved.

We’ll start with the waiver. As is usually the case, Jessica’s plea agreement contained a waiver, in which Jessica gave up her right to file a direct appeal or a post-conviction motion under 28 USC 2255 unless she got a sentence above 51 months. Just as F.R.Crim.P. 11 requires, the district court went over the waiver carefully with Jessica, and she told the judge in open court that she understood it. It seemed pretty straightforward, too. Yet the 2255 motion did not even mention it.

This week, her district court dismissed her 2255 motion, giving it much more attention than it deserved in a 26-page order. The court held that an appeal and collateral attack waiver like the one Jessica agreed to is “presumptively enforceable; only in very limited circumstances, such as a violation of a defendant’s Sixth Amendment right to counsel or the Government’s breach of the plea agreement, will it be found unenforceable.” The Court said the “record makes plain that Mann was fully allocuted concerning — and, more importantly, understood — the waiver of her right to challenge a term of imprisonment within or below the Guidelines range. What this means is that Mann’s challenges to her term of imprisonment sentence are barred by her waiver.”

Beyond the fact Jessica’s motion ignored the fact she had promised not to file a 2255, Jessica’s post-conviction argument seemed straight from an alternative universe. She demanded that the 2015 Guidelines be applied to her sentence, when in fact they already had been. She argued she should have received a minor role reduction, even after the court had already varied down from the bottom of her agreed-upon Guideline range by 70 percent. The motion didn’t even get her sentence right, stating she had been sentenced to 24 months, 2 days, when in fact she had gotten half that (and would serve about 10 months).

The Court patiently waded through Jess’s 2255 nonsense, finally noting that even if there were no waiver, and even if the 2015 Guidelines had not already been applied, “the Court would not have imposed a minor role adjustment… Mann did not plan the fraudulent scheme, nor did she supervise others at 4 Star. However, Mann fully understood the scope and structure of the scheme. She also excelled at the scheme to such a degree that she was made a member of the Elite Team, in the course of which she made egregious false statements to victims regarding, among other things, civil and criminal penalties to which they might be subject. And her success in collections put her at the forefront of the Team, realizing some $360,000 from victims in less than one year – a figure that directly impacted her salary… Mann is not substantially less culpable than the average participant in the criminal activity…”

Clearly, the Court was more puzzled than irritated that Jessica was pursuing a 2255 that was, by any measure, frivolous. The judge noted that she had “considered all of the facts specific to Mann in its evaluation of the Section 3553(a) factors. It considered her unfortunate upbringing, her family ties, her medical issues, her prior addictions, and her immediate acceptance of responsibility when interviewed by law enforcement… With all of this information at hand, the Court varied downward substantially from the Guidelines to concurrent terms of imprisonment of one year and one day — which, with contemplated credit for good behavior, will amount to just over ten months’ imprisonment. Stated simply, with or without a minor role reduction, the below-Guidelines sentence Mann received is the lowest sentence the Court would have imposed.”

Mann v. United States, Case No. 16 Civ 7536 (S.D.N.Y. Oct. 11, 2016)

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LOOKING A GIFT HORSE IN THE MOUTH

In April 2010, Clarence Bonds pled guilty to a drug-conspiracy charge and was sentenced to 120 months’ imprisonment. The presentence investigation report attributed 113 grams of crack cocaine to him, resulting in a base offense level of 30 under the Guidelines in effect at the time. With a criminal history of VI, Clarence’s sentencing range was 210 to 262 months. The Court varied downward to sentence him to 120 months.

Five years later, Clarence filed for a sentence reduction under 18 U.S.C. § 3582(c)(2), but the district court turned him down on the mistaken belief that he had been sentenced to a statutory mandatory minimum 120 months. In reality, there was no mandatory minimum. Clarence appealed, pointing out the court’s mistake and also arguing the should have also applied Amendment 742 to his sentence.

When Clarence was sentenced in 2010, he got an additional criminal history point because his new offense occurred within 2 years of being released from state prison. The extra point, called a “recency point,” was abolished by the Sentencing Commission in 2014 with Amendment 742 to the Guidelines. However, the Amendment was not made retroactive under Guideline 1B1.10. If it had been applied to Clarence’s sentence, his sentencing range have dropped to a minimum of 110 months, and he would have been eligible for a sentence reduction.

Last week, the 6th Court of Appeals agreed that Clarence that the district court was wrong, and he had not been sentenced to a statutory mandatory minimum. However, the Court of Appeals said, unless Amendment 742 applied to Clarence, his reduced Guidelines range was still above his 120-month sentence, meaning he was not entitled to a § 3582(c)(2) reduction.

Everyone knows the 2-level reduction authorized by Guidelines Amendment 782, which reduced the base offense levels for most drug-trafficking crimes, is retroactive. Amendment 742, on the other hand, is not. But Clarence said regardless of what 1B1.10 said, Amendment 742 had to be applied to his reduced sentence. He contended that that the “one-book” rule of U.S.S.G. 1B1.11(b)(2) – which provides that “[t]he Guidelines Manual in effect on a particular date shall be applied in its entirety” – means that Amendment 782 necessarily opens the door to the application of Amendment 742.

The 6th Circuit disagreed. A sentence reduction, the appellate court said, is a gift from the Sentencing Commission, and Clarence isn’t allowed to look it in the mouth. Reading the “one book” rule as Clarence argued it should be read “would strip 1B1.10 of any import, in violation of the presumption against superfluity. To the extent that the provisions of 1B1.10 and 1B1.11 conflict, 1B1.10 controls because it provides more specific guidance.”

If the court were to adopt Clarence’s reasoning, the Circuit said, “then the retroactivity decisions of the Commission would be applied inconsistently. That is, a defendant who stood to benefit from a retroactive amendment would doubly benefit from a non-retroactive amendment, whereas a defendant to whom only non-retroactive amendments applied would find no relief. “

The Court concluded the district court acted within its authority when it denied Clarence’s sentence reduction motion, although its conclusion that he was not entitled to a reduction because he was sentenced to the statutory mandatory minimum was an obvious error.

United States v. Bonds, Case No. 15-2405  (6th Cir. Oct. 14, 2016)

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BRINGING HOME THE ‘BACON’

Inmate Mack had a sweet job in the prison commissary. He’s a Muslim (a religion which, unlike Catholicism, has not been made fun of in the Clinton campaign’s hacked emails). But who needs progressives to mock your faith when you have correctional officers?

One day at work, Mack said, one of his supervising correctional officers slapped him on the back. Mack didn’t think much of it until he got off his work shift, and a fellow inmate informed him that he had an “I LOVE BACON” sticker stuck to the back of his shirt. (Islam requires its adherents to abstain from contact with pork products.) Mack was not amused, and complained to the officer who had put the sticker on him. The CO asked Mack if he had a problem with that, saying, “don’t worry, you’ll be looking for another job soon!” A few days later, while Mack was at work, the same officer loudly told Mack in the presence of other inmates that “there is no good Muslim, except a dead Muslim!”

Following the rules, Mack spoke to his supervisor’s supervisor, about the anti-Muslim conduct and statements. About a week later, Mack was fired from his commissary position for allegedly bringing in other inmates’ commissary slips. Mack denied doing so, and contends instead he was fired for complaining about the BACON sticker and his boss’s anti-Muslim rants.

Mack sued for money damages, alleging his 1st Amendment rights had been violated. Additionally, he claimed violations of his 5th Amendment rights and the Religious Freedom Restoration Act (“RFRA”). The District Court dismissed all of his claims.

This week, the 3rd Circuit reversed, holding that inmates have a right under the “Petition Clause” of the 1st Amendment to bring oral grievances to prison officials without fear of official retaliation. The Court also ruled that the RFRA prohibits officers’ conduct that substantially burdens the practice of religion; and the 1st Amendment and RFRA claims let an inmate seek money damages from an official sued in his individual capacity.

Under the landmark Supreme Court case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, people may seek money damages from government officials who violate their constitutional rights. In this case, the 3rd Circuit said, prisoners, “like other individuals, have the right to petition the Government for redress of grievances” and this right “must be freely exercisable without hindrance or fear of retaliation.” The ability to enforce this right with a Bivens action must be “available to an inmate who was falsely charged with misconduct in retaliation for exercising his First Amendment petition rights.”

The government argued “prison is a unique setting in which inmates and guards are in constant and often contentious contact with each other… Holding that every oral complaint by a prisoner to a prison guard is constitutionally protected would provide too many opportunities for prisoners to lodge frivolous lawsuits. “

The Court rejected that position:

While we appreciate the Government’s concerns, we are not persuaded that an oral grievance should not receive constitutional protection solely because it is lodged by a prisoner as opposed to a civilian. It is well-established that inmates do not relinquish their First Amendment right to petition by virtue of being incarcerated. It is also true, as the Government emphasizes, that an inmate only ‘retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.’ But under the facts alleged, there is no reason for us to think that the First Amendment rights Mack seeks to vindicate here are incompatible with his status as a prisoner.

Mack complained to the officers for the specific purpose of seeking redress. His issue concerned a prison guard’s conduct that prison rules prohibit — religious harassment by correctional officers.  As the Court noted, Mack’s “complaint was not obscene or inappropriate. In fact, the Government concedes that Mack’s oral grievance was ‘minimally disruptive and arguably valuable.’ And Mack complained almost immediately after the harassment occurred, undermining any contention that Mack formulated some sort of plan to lodge a complaint in order to bring a frivolous lawsuit.’ In fact, the Court observed, “BOP procedures require inmates to present an issue informally to staff before filing a formal grievance, and require wardens to establish procedures to allow for the informal resolution of inmate complaints.” In fact, the prison’s own inmate handbook explains that “Executive Staff and Department Heads regularly stand mainline at the lunch meal and you are encouraged to bring legitimate concerns to their attention.”

Under the circumstances of this case, the Court said, “these factors lead us to conclude that Mack’s oral grievance is entitled to constitutional protection.”

The Court concluded that “at first blush, this case may seem to lack merit. But Mack’s allegations, taken as true, raise legitimate concerns about how he was treated in prison. This case has also raised several unsettled issues about how or if a litigant such as Mack may obtain relief… We conclude that Mack’s First Amendment retaliation and RFRA claims may proceed…”

Mack v. Warden, Case No. 14-2738 (3rd Cir. Oct. 11, 2016)

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BUT YOU PROMISED…

The State of Michigan accused Mike Thompson of some pretty unsavory child sex abuse charges. In his attorney’s opening statement to the jury, counsel told the jury:

The defendant I believe is going to testify in this case. He’s going to tell you—I know he’s going to testify—he’s going to tell you he did not commit criminal sexual conduct in first degree. He’s going to tell you that he did not [do what he was charged with]. Now, how—how is this going to happen? Well, he’s going to testify to that. He’s going to make himself available for cross-examination on everything that happened by taking the stand. The prosecutor I’m sure will ask him a lot of questions about some of these other things. My point is he’s going to testify that he did not [do what he was charged with].

(We took out the lawyer’s graphic description of what Mike is said to have done, because we want our blog to get through the browser filters).

The jury saw a 45-minute video of Mike’s questioning by the police. But the defense rested without Mike ever testifying. Before jury deliberations, the trial court instructed them that “every defendant has the absolute right not to testify. When you decide this case you must not consider the fact that he did not testify. It must not affect your verdict in any way.” The jury convicted Mike on all counts.

Mike filed a motion for new trial in the state court, asserting an ineffective-assistance claim based on his lawyer’s failure to call him as a witness after promising the jury they would hear his live testimony. A successful ineffective-assistance claim requires a movant to prove both deficient conduct and prejudice resulting from the deficiency, under the watershed Strickland v. Washington decision.

In a hearing on Mike’s ineffectiveness claim, his lawyer told the court that when he made his opening statement, his “strategy. . . would have involved Mike testifying.” However, he also wanted to “keep [his] options open” until he saw the video’s effect on the jury. Once the prosecution played the video at trial, counsel decided Mike’s statements in the video were more helpful to his defense than live testimony would have been, based on Mike’s state of mind and the jury’s reaction to the video, particularly because live testimony would have subjected Mike to cross examination.

The trial court denied a new trial, finding that Mike’s lawyer did not provide deficient representation, and that – even if he had – Mike was not prejudiced by it because his side of the story got told through the video. The Michigan Supreme Court upheld the denial, saying that “given the evidence of guilt, the limited harm, if any, of the broken promise that defendant would testify, and given the court’s instruction to the jury that it could not consider defendant’s failure to take the stand in rendering its verdict, we find that defendant has not shown that there existed a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different.”

Mike went to federal court with a motion under 28 USC 2254 (the state court version of a 2255). The district court granted his motion, finding that his lawyer’s promise to the jury that they’d hear from Mike, made even though counsel doubted whether he would call Thompson as a witness, objectively unreasonable.

This week, the 6th Circuit reversed. The appellate panel did not even evaluate the deficient representation decision, holding that “assuming defense counsel’s conduct was deficient, the Michigan Court of Appeals reasonably applied Strickland’s second prong when it decided that any error did not prejudice Thompson’s defense.

The 6th cited three reasons: First, it said, the trial court instructed the jury not to consider Thompson’s failure to testify in reaching a verdict, and “juries presumptively follow the law.” Second, there was plenty of other evidence that Mike was guilty of the particular sex act with the child, independent of the jury speculating because he did not take the stand to deny it. Where evidence of guilt is substantial, a defense attorney’s failure is not as likely to hurt the defendant.

Third, “and most importantly,” the Court said, the jury heard Mike’s side of the story, directly from him through the video interview. To be sure, there are several cases where defense counsel’s broken promise inherently harmed the defense because, “in a he-said–she-said battle with minimal evidence of guilt, anything that diminishes the defendant’s credibility monumentally prejudices his defense.” However, here, defense counsel substituted a video interview for live testimony. “Thompson’s guilt for first-degree criminal sexual conduct turned on whether he penetrated the child. Thompson denied penetration in the video, as he would have through live testimony. Thus there was little for Thompson to add to his defense through live testimony. Indeed, live testimony easily could have done more harm than good through impeachment on cross examination. In fact, defense counsel found Thompson’s demeanor and statements in the video to be more effective than live testimony would have been.”

Thompson v. Rapelje, Case No. 15-1435 (6th Cir. Oct. 11, 2016)

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SANDBAGGED?

Pete Apicelli was being tried for running a marijuana grow operation in Campton, New Hampshire. He had been indicted after a town employee reported finding pot growing in a field, and the police set up a motion camera to catch the gardener responsible for it.

At trial, Pete complained that his Speedy Trial Act rights were violated, because more than 70 days elapsed between his indictment and trial. To a layman, this would seem to make sense, because his trial didn’t occur until something like a year and half after he was charged by the grand jury. But the name of the law codified at 18 U.S.C. 3161 – the Speedy Trial Act – is one rich in irony.

Officially, the STA requires that a defendant be tried within 70 days of the later of the indictment or initial appearance. If he or she is not, the penalty provisions of the STA mandate that “the information or indictment shall be dismissed on motion of the defendant.” But the 70 days are only “nonexcludable” days, which a wag once observed is any day of the week ending in “y.” At times, this does not seem to far from the truth.

In calculating the 70-day period, a number of delays are excluded by the statute, including delays caused by continuances when the district court judge determines that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.”

In Pete’s case, everyone agreed that 46 nonexcludable days passed between his initial appearance and the date on which he first filed a motion to continue the trial date. But then, Pete filed some motions, which normally begin “excludable time” under the STA.  

Pete and the government disagreed on whether the STA clock continued to stand still during two periods in which the district court granted ends-of-justice continuances at Pete’s request. The district court said both delays served the ends of justice, and didn’t count them against the STA calendar. If they had counted, Pete’s STA rights would have been violated.

Normally, you’d think that filing something to stop the clock and then complaining that you were prejudiced because the STA clock stopped seems like shooting your parents and then complaining you deserve mercy for being an orphan.  But Pete’s argument was a bit more nuanced than that. He argued the time his motions were pending should not be excluded from the STA, because the government had denied him the automatic discovery he was entitled to, and he had to file the motions in order to get it. Previously, the 1st Circuit had observed that “a defendant denied automatic discovery . . . would be placed snugly between a rock and a hard place: he could either forgo discovery to which he was entitled or he could file a motion to obtain it, thus stopping the speedy trial clock and easing the pressure on the government to bring him to trial.”

But last week, the 1st Circuit turned Pete down, refusing to hold that the government had sandbagged him. The appellate panel held that Pete did not allege that the government acted intentionally or delayed its discovery production to gain an unfair advantage. “Rather, he simply lists evidence he believes the Government should have disclosed at an earlier date and asks us to infer bad faith or government inattention from the delays themselves.” The Court held that Pete “neither explains why this evidence should have been part of the Government’s automatic discovery obligations nor does he appeal the district court’s finding that the Government was in compliance. We have long held that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. Without any reason to doubt the district court’s findings that the Government had complied with its discovery obligations, we cannot find an STA violation from the delays themselves.”

What is interesting is what the Court did not say. It did not say that the government could stop the STA clock by forcing the defendant to move for the release of evidence that should have been automatically disclosed. It did not say that a defendant who was compelled to seek court assistance to obtain needed evidence had to choose between STA rights and trial preparation. In fact, the court’s holding that Pete failed to show a government discovery violation seemed to suggest that if he had been able to do so, his argument that he could move for court assistance without stopping the STA clock would have had merit.

United States v. Apicelli, Case No. 15-2400 (1st Circuit, Oct. 7, 2016)

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OBAMA’S CLEMENCY INITIATIVE CHANGES AS HE ENTERS THE HOME STRETCH

When President Obama announced his clemency initiative in 2014, the plan was simple: to reduce drug sentences of those convicted under harsh Guidelines and mandatory minimum sentences, especially for crack cocaine crimes. Back then, his commutations ordered inmates released promptly, giving the BOP at most a few months to arrange post-release supervision and the like.

Obama’s commutations last week suggest his policy has morphed into clemency for inmates convicted of more serious drug crimes, employing something called “term” commutations, as opposed to the more common “time served” commutations. USA Today explained last week that “term” commutations “represent a remarkable departure from recent past practice.”

USA Today’s study of 673 commutations through August showed a marked change in Obama’s strategy on clemency. Before August, almost all of the inmates receiving commutations were released within four months. But in the August commutations, 39% came with a year or more left to serve on the sentence. Our own study of last week’s clemency list shows that number has increased to 43%. In fact, only 21% of last week’s commutations came with the earliest release date – February 3, 2017. What’s more, a full third of the grants are conditioned on completion of residential drug treatment prior to release.

The ever-increasing number of delayed-release commutations granted by Obama suggest a continuation of the trend toward term resentencing, a novel use of the commutation power.

The August commutation grants led some to believe Obama was starting to grant clemency to more violent offenders. Before August, only 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy in August, it was 22%. But in the commutations granted last week, only 15% involved a firearm, and those were all mere possession cases, with none appearing to involve active use of a gun. Likewise, none of last week’s commutations involved offenses with violence or threats of violence.

This does not mean that Obama won’t continue to commute more serious and large-scale drug trafficking cases (such as continuing criminal enterprises). It does, however, suggest that anyone with a violent drug offense need not apply.

Of course, contrary to the White House’s curious statement that “most” of the commutations were for a drug offense, every one of the 102 commutation grants was to an inmate whose offenses included drug trafficking. The commutation initiative has encouraged federal inmates with all manner of offenses to apply for commutation, but Obama’s record to date suggests that no inmate with a conviction other than drug-related is likely to get any traction with this White House.

We also found it noteworthy that 39% of the inmates getting clemency last week were sentenced in the past 10 years, with one being sentenced as recently as 2013. For some time, DOJ suggested that no one was getting clemency who had not been down 10 years, but that seems to be changing as the Obama Administration works through the clemency petition backlog.

And a backlog certainly does remain. Although it’s unclear how large it is, the number is in the thousands. Still, Neil Eggleston, White House counsel, said last Thursday, “”I’ve told my office that anything that gets to us will get processed. We’re not going to have a failure of resources here. I’m pretty confident that we’ll get to all of those.”

Obama hoped to make criminal justice reform the primary legacy of his final year in office. A bipartisan group of senators and representatives introduced the Sentencing Reform and Corrections Act of 2015, which would have reduced mandatory minimum sentences for some drug crimes and made the Fair Sentencing Act of 2010 retroactive. Up to 5,800 crack cocaine offenders sentenced before August 3, 2010 could have filed for lower sentences in line with the reform to the 100-to-one disparity between crack and powder cocaine.

But the wheels have fallen off that legislative bus, leaving Obama with clemency as the only means at his disposal to address disparate sentences. Last year, his Administration optimistically predicted it could grant up to 10,000 commutations, reduced later to 2,000. With only 102 days left in his Administration, Obama is only 36% to his goal.

Eggleston told CNN that Obama would continue to personally review clemency requests up until the final days of his administration.

“It’s not uncommon for him to call me in and have various ones that he wants to talk through. He focuses individually on each one of these, knows a fair amount of information on each of them,” Eggleston said. “He’s essentially looking at the various pieces, and he’s testing the likelihood of success on the outside. The way he really thinks about this is giving people second chances.”

USA TODAY, Obama commutes record total 774 sentences, October 6, 2016

DOJ, President Obama Grants Commutations (October 6, 2016)

CNN, Obama reducing 102 inmates’ sentences (October 7, 2016)

Death and Taxes Magazine, Obama Commuting Record Federal Prison Sentences Equal Parts Inspiring and Depressing, October 6, 2017