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YOU’RE NOT BEING HELPFUL

Federal agencies sandbag Freedom of Information Act requesters all the time. In fact, under the Obama Administration – “the most transparent administration in history,” according to the President – “the Obama administration set a record for the number of times its federal employees told disappointed citizens, journalists and others that despite searching they couldn’t find a single page requested under the Freedom of Information Act,” according to the Associated Press.

An order in a Southern District of New York FOIA suit last week may help explain why that is. A federal judge criticized Immigration & Customs Enforcement for torpedoing an FOIA request by searching terms in the plural only, such as “home enforcement operations,” “quotas,” “statistics,” “targets,” “non-targets,” and “collaterals.”

The technique excluded all singular forms. The district court noted that if “Defendants instead searched for only the singular form, they would have yielded documents containing the plural form as well… Without explanation, such searches do not appear to be calculated to produce all responsive records.”

The court also slammed the agency for interpreting the FOIA request as narrowly as possible to avoid release of documents. The requesters were seeking data from ICE’s Law Enforcement Systems and Analysis (“LESA”) on the agency’s home raids to capture illegal immigrants. ICE admitted LESA had a data file of addresses raided, but said it “does not know—and does not track—whether that address is a business, a residence, a street, or some other type of location.” Because it couldn’t tell if the location was a home, the agency “determined that a search of LESA would not yield responsive documents.”

The court ruled that ICE’s “chief reason for failing to search LESA is not valid under FOIA. As part of an agency’s obligation to “construe FOIA requests liberally,” the agency has “no right to resist disclosure because the request fails reasonably to describe records unless it has first made a good faith attempt to assist the requester in satisfying that requirement.”

There’s a good reason that savvy FOIA veterans say that requesters should file a second FOIA request seeking the processing notes from a prior FOIA request. One reporter wrote, “In my case, ‘FOIAing my FOIA’ yielded some interesting, if depressing, behind-the-scenes info. One released email showed that, at one point, my request was forwarded to the wrong DEA field office, where it was accidentally deleted.”

Opinion and Order, Immigration Defense Project v. ICE, Case No. 14-6117 (S.D.N.Y.  Sept. 23, 2016)

Eil, Six lessons from a five-year FOIA battle (Columbia Journalism Review,  Sept. 27, 2016)

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DON’T TOUCH ME

Eddy Vail-Bailon pled guilty to reentering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Section 1326(b)(1) increases the penalty for illegal reentry when the was deported following conviction of a felony. Eddy’s crime was felony battery under Fla. Stat. § 784.041.

The district court socked Eddy with a 16-level increase in his Guidelines level because the judge decided felony battery is a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). It sure sounds it. “Battery” – unless we’re talking about the Eveready Bunny – sounds ugly.

But, observing that “you can’t judge a book by its cover,” the 11th Circuit reversed. In a decision handed down yesterday, the Court held that the Florida batter statute is divisible, but – in the wake of Welch, Mathis and Curtis Johnson, neither alternative element is a crime of violence.

Under Fla. Stat. § 784.041, a person commits felony battery if he (a) actually and intentionally touches or strikes another person against the will of the other; or (b) causes great bodily harm, permanent disability, or permanent disfigurement. The prosecution can prove a violation of statute “by showing that a defendant “intentionally struck” the victim or that he merely “actually and intentionally touched” the victim).”

When statutes are divisible, trial judges are permitted to look at the state court records to see under which of the alternatives a defendant is convicted. Eddy’s state records were not illuminating, leaving the Court to assume Eddy was convicted under the less serious of the alternatives, “actually and intentionally touching.”

The “elements clause” of Guideline 2L1.2(b)(1)(A) defines a “crime of violence” as including any “offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Supreme Court has already held that Florida battery, when committed by actually and intentionally touching another against his or her will, does not satisfy the “elements clause” because it can be satisfied by any intentional physical contact, ‘no matter how slight.’ The Circuit observed that the phrase “physical force” that appears in the “elements clause” necessarily refers to “violent force—that is, force capable of causing physical pain or injury to another person.”

The Circuit held that the second element under the Florida batter statute – that the intentional touching from the first element have “cause[d] great bodily harm, permanent disability, or permanent disfigurement” – likewise contains no requirement that the offender intentionally or knowingly cause bodily harm of any type. So, as Eddy argued and the government conceded, a person can be guilty of Florida felony battery if the offender taps another person on the shoulder while that person stands near the top of stairs, and the person whose shoulder was tapped is either startled or otherwise reacts in such a way that he falls down the stairs and suffers grievous bodily harm.”

The 11th Circuit said, “A crime that occurs in these ways does not qualify under the ‘elements clause’ as a ‘crime of violence’ under Supreme Court precedent. First, it does not involve physical force’…” The Supreme Court has explained that the phrase ‘physical force’ means violent force – that is, force capable of causing physical pain or injury to another person – and explained that “violent” force is “the sort that is intended to cause bodily injury, or at a minimum likely to do so.”

This necessarily excludes Florida felony battery committed by mere touching. “Nor can it be that,” the Court held, “in a given case, the fact that a mere touching actually does result in great bodily harm somehow changes the character of the mere touching from an action that is not likely to result in bodily harm to one that is likely to result in bodily harm. In other words, the results of a specific incident of mere touching do not alter the fact that the nature of mere touching, in and of itself, as the Supreme Court concluded in Curtis Johnson, is not likely to result in bodily harm. So Florida felony battery by mere touching cannot qualify as a ‘crime of violence,’ no matter what the injury resulting from the mere touching might turn out to be.”

United States v. Vail-Bailon, Case No. 15-10351 (11th Circuit, Sept. 28, 2010)

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SOMEBODY SET UP US THE BOMB

Danny Sheehan was a guy who needed money, probably because he had spent his formative years watching action-adventure movies and playing video games instead of learning a gainful occupation. One of the games must have been Sega “Zero Wing”… because he sure “set up us the bomb.”

Danny concocted a get-rich-quick scheme with more moving pieces than a clock. He bought a prepaid cell phone and the components needed to build a pipe bomb. First, Dan built a bomb and set it off in his backyard shed, just to make sure it worked. It did. So he built a second pipe bomb, complete except the igniter was not wired up. He put the bomb in a cardboard light fixture box he’d gotten from Home Depot, and while wearing a wig, arm sling and make-up, planted the box with the bomb in a Home Depot lighting department. Dan, who’s allergic to cats, even planted cat hair in the box to throw off investigators.

He connected a string from the box to the shelf to make it seem that moving the box would set off the bomb. About two weeks later, Danny sent a handwritten letter to the store manager, telling him where the bomb was planted and that it could not go off. Pointing out that he could build and plant a bomb undetected, Danny demanded $2 million, or he would disrupt Black Friday sales.

Even though he warned against the store manager against it, Home Depot officials called the police. The EOD squad moved the bomb to a back room, but accidentally set it off while trying to take it apart. No one was hurt.

Two days later, Dan called the store manager on his throwaway cellphone, lowering his demand by a million. Unfortunately for a guy who planned everything else to a “t,” Danny inexplicably left his anonymous cellphone on after the call. The FBI snagged the phone number, then tracked the phone back to the retailer. Even though Danny bought it anonymously, the Feds – using what the Government drily calls “locational information” –  traced the location through cellphone towers right to Danny.

Too bad Danny wasn’t allowed to make it to the getaway phase, because those plans were worthy of Mission Impossible. In his admission, Danny explained:

Earlier this year, I… was given a Yamaha Wave-Runner which was hollow and motorless. I got this through a contact on [Craigslist]… I also purchased a cooler at a K-Mart… which I was going to use with the Wave-Runner as part of my plan for the money drop. I modified both the Wave-Runner and the cooler by putting holes in them. The cooler is now attached to the seat of the Wave-Runner… My plan for the money drop was to put the Wave-Runner in Huntington Harbor, and to hide in the water under the Wave-Runner and have the extortion money placed into the cooler and I would retrieve it from beneath the Wave-Runner through the holes I had cut into the cooler and the Wave-Runner. I planned to use an air tank so I could stay under water and swim away with the money.

Indeed, Danny had bought  SCUBA equipment in preparation for the escape.

Danny was charged with extortion and using a destructive device in a crime of violence under 18 U.S.C. Sec. 924(c)(1)(B)(ii). He admitted to the extortion, but argued the Home Depot bomb would not detonate absent extraordinary circumstances (such as the cops bungling the dismantling of it, as they did), and it could not be readily converted into such a device. The issue was important, because the 924(c) (1)(B)(ii) count carried a mandatory 30-year sentence.

The jury found the Home Depot bomb was a destructive device within the meaning of the statute. Last week, the 2nd Circuit agreed.

The Court of Appeals said that even though the device was “incapable of detonating in its ordinary or intended manner (because, for example, it lacks a particular component ordinarily present in such a device), but is nonetheless capable of detonating, is an ‘explosive bomb’ within the meaning of the statute.

Danny argued the government’s experts – who said the device could have exploded simply from being taken apart – were so obviously wrong that no reasonable jury could believe them. The Court said “although there may be rare circumstances where an expert’s testimony is so incredible that no rational factfinder could believe it beyond a reasonable doubt, the testimony of [the experts] does not fall into that category. Their testimony is not so illogical or contrary to common sense that no rational jury could accept it. Drawing all inferences in favor of the government, we must conclude that the jury credited their testimony that the device could be detonated over the contrary testimony of the defense expert.”

Danny also argued that even if the “device was an explosive bomb, [his] conviction must still be reversed because, measured objectively, it was neither designed nor redesigned for use as a weapon.” The Court ruled, however, that “in light of the objective features of the device – which was built to look like an IED, contained an explosive, and was capable of detonating – the jury could rationally find that the device was objectively designed as a weapon even if it was missing a component required to enable it to explode in a specific way.” The bomb could detonate (and in fact it did, albeit accidentally), making Danny’s belief it could not irrelevant.

Danny contended the device was missing crucial parts – the battery and connectors – and therefore could not be “readily assembled” into a working bomb. But the missing parts could have been found inside the Home Depot in which the device was planted. The 2nd Circuit said “a rational jury could conclude that Sheehan’s device – which indisputably lacked a functional fuzing system – was a partially completed device designed in such a way that with readily available materials it could have been converted into a functional explosive device… The government does not have to offer evidence that a defendant possesses commonly available materials if he or she otherwise possesses all of the key components necessary to assemble a destructive device.”

Accordingly, the appellate panel held, a jury could convict if it found beyond a reasonable doubt that the device qualified either as a “destructive device” or as a “combination of parts” designed so that it could readily be assembled into a listed destructive device.”

But, Danny complained, he never really intended to build a working bomb. The statute, however, makes it illegal to possess a working bomb or merely to intend to do so. The government proceeded on the theory of “objective design,” meaning that Danny’s intent was irrelevant.

This case is different, the Court said, from a case where a person “merely possessed, for legitimate reasons, a variety of ordinary items that could be used either to build bombs or to build something quite innocent.” There, intent to convert those items into a destructive device is required to prevent people from being convicted for harmless, legitimate acts. “That policy concern is not implicated,” the Court said, “where the assembled device lacks any legitimate purpose.”

Ironically, Danny could have made the same point to Home Depot had his pipe bomb been filled with sand instead of gunpowder. If he had done that, it is much less likely a jury could have found the device could readily be assembled into a destructive device with readily available parts, and – while he’d be doing time for extortion – he would have avoided the mandatory 30-year sentence.

United States v. Sheehan, Case No. 15-1028 (2nd Cir.  Sept. 23, 2016)

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KILLING FLIES WITH ELEPHANT GUNS

Do ex-offenders who complete their sentences deserve a clean slate? And how should that be balanced against the public’s right to safety, especially for children?

Currently, the federal and state correctional systems supervise about 6.9 million people. The FBI adds over 10,000 people a day to its database. About one-third of adults have been arrested by age 23. Together, local, state and federal law enforcement agencies are approaching 250 million arrests, resulting in close to 80 million individuals in the FBI criminal database. See Nicholas M. Wooldridge, A Federal Expungement Law Should Be a Priority in Any Future Criminal Justice Reform Effort, JURIST – Hotline (Sept. 22, 2016).

Some collateral consequences are nonsensical. Why should ex-offenders be stripped of the right to vote? Some are overbroad. Those convicted of violent offenses probably should be denied firearms, but why should someone with a 30-year old check forgery conviction be denied the right to shoot skeet?

Now add to the mix two explosive factors, the first being protection of our children and the second being that the ex-offenders were convicted of child sex offenses. Most people would say that too much is not enough. The 11th Circuit grappled with that question last week, looking at what is touted as the strictest sex offender residency law in America.

Miami-Dade County adopted an ordinance in 2005 that prohibits a person convicted of any one of several enumerated sexual offenses involving a victim under 16 years old from residing “within 2,500 feet of any school.” The 2,500-foot distance is “measured in a straight line from the outer boundary of the real property that comprises a sexual offender’s or sexual predator’s residence to the nearest boundary line of the real property that comprises a school,” rather than “by a pedestrian route or automobile route.” The plaintiffs – people who had been convicted of such offenses – sued, claiming that the collateral consequence was an ex post facto punishment prohibited by the Constitution.

The district court threw out the case, but the 11th Circuit reinstated the case for several of the plaintiffs who proved they had been convicted before the ordinance was enacted.

An ex post facto law is a law that applies to events occurring before its enactment and that disadvantages the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime. If the law imposes collateral consequences on offenders, the Supreme Court has adopted a two-stage inquiry. If the intention is to impose punishment, the ordinance is a prohibited ex post facto law. If the act’s intention was to enact a regulatory scheme that is civil and nonpunitive, the court looks at whether the effect is nevertheless so punitive either in purpose or effect “as to negate the State’s intention to deem it civil.”

Here, the County argued its ordinance was intended to be civil and nonpunitive. Accepting that, the Court focused on the effect it had on people who were subject to it and were convicted before its passage. One of the plaintiffs alleged he “was twice instructed by probation officers to live at homeless encampments after the County’s residency restriction made him unable to live with his sister and he could not find other housing compliant with the restriction. He currently lives at a makeshift homeless encampment near ‘an active railroad track’.” Another plaintiff said he “sleeps in his car at the encampment because, ‘despite repeated attempts, he has been unable to obtain available, affordable rental housing in compliance with the Ordinance’.”

The Court found the plaintiffs also had adequately alleged the ordinance went well beyond what was necessary to protect the public. They claimed “an individual becomes subject to the restriction based solely on the fact of his or her prior conviction for a listed sexual offense, without regard to his or her individual ‘risk of recidivism over time’… despite the fact that ‘research has consistently shown that sexual offender recidivism rates are among the lowest for any category of offenses, and that this lower risk of sexual offense recidivism steadily declines over time’. Nonetheless, the County’s residency restriction applies for life, even after an individual no longer has to register as a sexual offender under Florida law and is no longer subject to the state law 1,000-foot residency restriction. The County’s residency restriction also applies ‘even if there is no viable route to reach the school within 2500 feet’.”

Finally, plaintiffs argued that by forcing them into homelessness, the ordinance made it that much harder for them to obtain treatment, which is the only proven means of reducing recidivism.

The Court’s role at this point in the proceeding was only to determine whether the plaintiffs had stated a plausible claim, such that they should be permitted to proceed. The appellate panel ruled that Doe #1 and Doe #3 “alleged sufficient facts to raise plausible claims that the County’s residency restriction is so punitive in effect that it violates the ex post facto clauses of the federal and Florida Constitutions. Whether Doe #1 and Doe #3 ultimately prevail is a determination for a future stage of this litigation.”

Doe v. Miami-Dade County, Case No. 15-14336 (11th Cir., Sept. 23, 2016)

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YOU MAY BE GOING TO HELL, BUT YOU’VE STILL GOT RIGHTS

The story initially appears to be pretty seamy: Kevin Williams, who is serving a 65‐year Illinois sentence for murder, ordered the death certificate of the woman he killed from the county clerks office. The clerk didn’t much like the request, so she sent him the death certificate with a note saying “there is a place in hell waiting for you as you must know you will reap what you have sowed!”

The prison refused to let Kevin have the death certificate (and the note, but he probably didn’t want that) on the grounds that “it posed a threat to the safety and security of the institution and would negatively impact Inmate Williams’ rehabilitation.”

Kevin sued the prison officials in federal court, contending that by confiscating the certificate without even giving him a chance to read it, prison officials had infringed his 1st Amendment rights. The district court judge granted summary judgment for the prison staff on the grounds that their confiscating the certificate had Kevin, and also had protected the victim’s family because the death certificate might include information identifying siblings, spouses or parents.

This week, the 7th Circuit reversed. In a short but to-the-point decision, the Court of Appeals observed that a prison can confiscate an inmate’s mail if confiscation is reasonably related to legitimate penological interests. But the prison must present “some evidence to show that the restriction is justified.” The prison officials argued that the “place in hell” accompanying the certificate threatened violence against Kevin. The Court dryly agreed, but noted that the violence threatened was “violence in hell, not in the prison; no prison official suggested that the note portended violence in the prison.” The officials also argued that Kevin “could use the death certificate as a ‘trophy’ which would increase tension within the prison and decrease his chances for rehabilitation.” But the officials cited no evidence that he intended to do so.

Indeed, Kevin explained in both an affidavit and a deposition that he had ordered the death certificate for use in state post–conviction proceedings rather than to save as a trophy of his crime, and “the defendants have presented no contrary evidence to support their assumption that Williams wanted a trophy.” In fact, the Court said, “the prison could have avoided this controversy in the first place by holding on to the death certificate except for the short time needed to include it (or indeed just a xerox copy of it) in Williams’ court filing.”

The 7th held that the right of a prison inmate to read the mail he receives, provided that his reading it would not infringe the prison’s legitimate interests, is clearly established. A prison does have a legitimate safety concern about things like “boasting inmates” carrying around trophies of their victims and violence. But in order to defeat the 1st Amendment right of prisoners, such concerns have to be supported by evidence, not just the prison officials’ say-so.

Williams v. Hansen, Case No. 15‐2236 (7th Cir. Sept. 20, 2016)

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YOU SHOULD HAVE TOLD ME THAT

Mike DiFalco had a problem. He was charged with conspiracy and possession with intent to distribute over 50 grams of meth. That’s problem enough, but Mike’s was enormously bigger because this was not his first rodeo: he had been convicted of enough prior drug offenses to be facing a mandatory life sentence.

When Mike’s co-conspirator made a plea deal with the government, Mike could see the handwriting on the wall. So Mike did what any sensible defendant would have done. He made his own deal, agreeing to plead guilty in exchange for the prosecutor filing a notice under 21 U.S.C. Sec. 851 to only one prior. The effect of the deal was to lock in a mandatory minimum of 20 years instead of life.

A sure cure for insomnia is to wade through the dense verbiage of 21 U.S.C. Sec. 841(b), which specifies all sorts of different sentences for drug trafficking according to factors like drug quantity, whether anyone died, and number of prior drug offenses. In Mike’s case, his multiple priors were the driver of a mandatory life sentence, but his deal locked in a mandatory minimum of 20 years instead of life.

In order to get a higher mandatory minimum sentence applied to the defendant, the government is required by Sec. 851 to “file an information with the court… stating in writing the previous convictions to be relied upon… Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.”

The government filed its 851 notice, but bolloxed up the facts pretty badly. The notice said Mike had been convicted in 2007 for sale of amphetamine and marijuana in Bartow County, Florida. But there was no 2007 conviction: rather, he had been convicted in 2002 of trafficking in amphetamine, manufacture of marijuana, possession of Ecstasy and Alprazolam, use or possession of drug paraphernalia, and driving with a suspended license in Polk County, Florida. He had a sheaf of other convictions for running a chop shop, weapons, and other drugs. Significantly, he had been convicted of nothing in 2007.
Mike’s plea deal included the customary waiver language, in which he agreed not to challenge the sentence on appeal except in limited cases (none of which applied). Nevertheless, he appealed his 20-year sentence on the grounds that the no one ever told him that he was waiving an appeal and that he faced a minimum of 20 years. For good measure, he argued as well that the 851 notice was defective.

Last Tuesday, the 11th Circuit – reciting all of the evidence in the record showing that Mike knew exactly what he had agreed to – shot him down. The appellate court’s decision is unremarkable in one regard, because contrary to the hopes of inmates that none of those provisions in plea agreements or questions and answers in front of the judge mean anything, appeal waivers are enforceable and when a defendant tells a judge he or she understands the plea agreement, the court’s going to hold the defendant to it.

The twist is that the 11th Circuit – like a number of other circuits – has previously held that Sec. 851 is a jurisdictional statute. That is, compliance with the requirements of Sec. 851 was a precondition to the district court even having the authority to impose the mandatory minimum sentence. Federal courts are courts of limited jurisdiction, with no authority other than what Congress has given them. If Sec. 851 is a jurisdictional statute, and if the government did not comply with the literal wording of the statute, the court thus lacks subject-matter jurisdiction to impose the higher sentence.

Inmates filing post-conviction motions love “jurisdiction” arguments without really appreciating what the term means. They often make the most pedestrian statutory provision into a “jurisdictional” one. To Mike, the importance making Sec. 851 into a jurisdiction statute was clear: a party cannot waive a jurisdictional defect, and the failure to complain about such a defect earlier in a case is no bar to complaining about it later. In short, under 11th Circuit law that existed when Mike was sentenced, his waiver did not encompass a complaint that the government had breached Sec. 851.

Unfortunately for Mike, since the time the 11th Circuit and others had found Sec. 851 to be jurisdictional, the Supreme Court had dictated a sea change in how jurisdictional statutes are viewed. In Kontrick v. Ryan and other cases, the Supreme Court instructed that jurisdictional rules are reserved “only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” As the 11th Circuit admitted, “the significance of this distinction was that, unlike a jurisdictional rule, a claim processing rule can be forfeited by a party.”

Kontrick and its line of cases recognized, as the appellate court noted, that “the “term ‘jurisdiction’ has become ‘a word of many, too many, meanings.” It should be reserved only for statutes that delineate the court’s adjudicatory authority over classes of cases and persons, not to statutes – such as Sec. 851 – that only “limit a court’s actions in a case in which the court’s underlying authority to decide the matter is unquestioned.”

Sec. 851, the Circuit ruled, is a “claim processing rule” that “seeks to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” First, the Court said, “it is clear that Sec. 85l’s notice requirement does not affect the district court’s subject-matter jurisdiction over cases involving offenses against the laws of the United States. To the contrary, that authority is plainly vested in the district courts by Congress… That Sec. 851 is denuded of any jurisdictional component is evidenced by the fact that the district court had the lawful power to accept DiFalco’s plea and impose a sentence upon him. And, indeed, it had the statutory authority to impose the very same 240-month sentence even without the filing of any Sec. 851 notice.”

Sec. 851’s requirements are not jurisdictional, the Circuit said, and, thus, may be waived. Mike “knowingly and voluntarily waived his right to challenge the Sec. 851 notice when he signed the plea agreement. The Court held that “upon a fair review of this record, we are satisfied that DiFalco knowingly and voluntarily waived his right to appeal his sentence. Thus, we dismiss his appeal.”

United States v. DiFalco, Case No. 15-14763 (11th Cir. Sept. 20, 2016)

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MAN BITEMARKS DOG

The President’s Council of Advisors on Science and Technology released its report yesterday on the state of forensic science used in criminal courts, and it was every bit as scathing as the Wall Street Journal predicted it would be at the end of last month.

The report, written by scientists who carefully assess forensic methods according to  scientific standards, found that many forensic techniques do not pass scientific muster – and thus are not ready for courtroom application.

Last year, the Department of Justice examined its own performance in the analysis of hair samples – once used to identify potential suspects, but a practice that was discontinued in 1996 – and found FBI agents had “systematically overstated the method’s accuracy in court, including at least 35 death penalty cases,” according to Ars Technica.

This was hardly the only problem. Problems with forensic evidence have plagued the criminal-justice system for years, Ars Technica said. Faith in the granddaddy of all forensic-science methods—latent fingerprint comparison—was shaken in 2004 when the FBI announced that a print recovered from the Madrid train bombing was a perfect match with American lawyer Brandon Mayfield. Spanish authorities promptly discovered that the print belonged to someone else.

As Judge Alex Kozinski described it in Tuesday’ Wall Street Journal, “Doubt turned to horror when studies revealed that certain types of forensic science had absolutely no scientific basis. Longstanding ideas about ‘char patterns’ that prove a fire was caused by arson have been discredited. Yet at least one man, Cameron Todd Willingham of Texas, was executed based on such mumbo jumbo.”

The PCAST report analyzes DNA, bite mark, latent fingerprint, firearms, footwear and hair analysis techniques. The report finds that all of them have problems when it comes to operating on a firm scientific footing, and it concludes that forensic science needs “to take its name seriously.”

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report.  “In plain terms,” Judge Kozinski wrote, “Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.”

Even methods valid in principle become unreliable in practice. Forensic experts are “hired guns,” and the ones working for the  prosecution sometimes see it as their job – if not required to keep the prosecution work coming – to get a conviction. This can lead and has led them to fabricate evidence or commit perjury. Some forensic examiners are poorly trained and supervised, and overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report says that such claims are hyperbole, “scientifically indefensible,” but jurors generally take them at face value when presented by government witnesses who are certified as scientific experts.

The report recommends that DOJ take the lead in ensuring that (1) “forensic feature-comparison methods upon which testimony is based have been established to be foundationally valid with a level of accuracy suitable to their intended application;” and (2) “the testimony is scientifically valid, with the expert’s statements concerning the accuracy of methods and the probative value of proposed identifications being constrained by the empirically supported evidence and not implying a higher degree of certainty.”

The report also calls on DOJ to review, with scientific assistance, which forensic methods “lack appropriate black-box studies necessary to assess foundational validity.” The report specifically denounced footwear and hair analysis as resting on insufficient scientific foundation, and nearly ridiculed bite mark analysis as voodoo science. PCAST suggested that there could be more, with Judge Kozinski noting that arson burn pattern analysis should be near the top of the list.

Additionally, the panel called on DOJ to adopt uniform guidelines on expert testimony that ensure that “quantitative information about error rates” is provided to the jury, and when such information is not available, that should be disclosed, too. The report recommends that “in testimony, examiners should always state clearly that errors can and do occur, due both to similarities between features and to human mistakes in the laboratory,” which is about as likely as a snowstorm at a July 4th picnic.

As unlikely as prosecution cooperation with scientific accuracy might be, the report nevertheless is a much-needed stand against rampant junk science in the courtroom. As the Washington Post put it, the report “builds upon mounting evidence that certain types of ‘forensic feature-comparison methods’ may not be as reliable as they have long appeared. A recent, unprecedented joint study by the Innocence Project and the FBI looked at decades of testimony by hair examiners in criminal cases — and found flaws in the testimony an astonishing 95 percent of the time. In a number of serious felonies, DNA testing has revealed that bite-mark evidence underpinning convictions was simply incorrect. More generally, faulty forensic evidence has been found in roughly half of all cases in which post-conviction DNA testing has led to exoneration.”

Executive Office of the President, President’s Council of Advisors on Science and Technology, Report To The President: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Sept. 20. 2016)

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LOOSE LIPS SINK SHIPS

It’s an article of faith among federal inmates that they can file some kind of motion with the district court to get their grand jury materials, so they may comb through them for grist to use in a post-conviction motion.

Rule 6(e)(3)(E)(ii) of the Federal Rules of Criminal Procedure provides that a court “may authorize disclosure… of a grand jury matter at the request of a defendant who shows that a ground may exist to  dismiss the indictment because of a matter that occurred before the grand jury…” Thus, such inmate motions are almost always shot down, because district courts invoke an “exclusivity rule” that Rule 6(e)(3)(E) prohibits giving anyone grand jury materials unless one of the exceptions listed in subsection (e)(3) is met. Ever. No exceptions.

But now, a 7th Circuit decision handed down last week may sound the death knell for the “exclusivity rule.”

In 1942, the United States won a crucial naval victory at the Midway Islands, sinking a Japanese carrier task force and turning the tide of war in the Pacific. The enemy planned an attack on some Alaskan islands, to draw out U.S. aircraft carriers in order to destroy them. The Navy didn’t fall for the juke, and instead pulled off a stunning win.

When news broke of the victory, the Chicago Tribune printed a story that reported – accurately, it turns out – that the U.S. Navy knew in advance that the Alaskan attack was a distraction. President Roosevelt exploded when he saw the story, because it implied the U.S. had broken the Japanese naval codes (which it had). The President ordered a criminal investigation into the Tribune, which was owned by one of his political enemies, but the grand jury ended up returning no indictments.

About 70 years later, Elliot Carlson – a journalist and historian with a special expertise in naval history – petitioned the federal court for release of the Tribune grand jury materials for a book he is writing about the investigation. The government conceded there remain no interests favoring continued secrecy, but still resisted release of the materials, the 7th Circuit explained, arguing “that no one (as far as we can tell) has the power to release these documents except for one of the reasons enumerated in Rule 6(e)(3)(E).”

The appellate court ruled that Rule 6(e) is a permissive rule, not a mandatory one. It does not prevent the court from releasing grand jury materials where it believes release to be appropriate. Instead, the rule only directs that release always should be considered appropriate in the situations listed in subsection 6(e)(3). The district court’s “limited inherent supervisory power has historically included the discretion to determine when otherwise secret grand-jury materials may be disclosed,” the 7th Circuit said. “Prior to the adoption of the Federal Rules of Criminal Procedure, the Supreme Court held that release of sealed grand jury materials ‘rests in the sound discretion of the [trial] court’ and ‘disclosure is wholly proper where the ends of justice require it.’ The advent of the Criminal Rules did not eliminate a district court’s inherent supervisory power as a general matter.”

The Court of Appeals held that Federal Rule of Criminal Procedure 57(b) “recognizes that the rules are not designed to be comprehensive; instead, it says, ‘when there is no controlling law … [a] judge may regulate practice in any manner consistent with federal law, these rules, and local rules of the district.’ This Rule has remained substantively the same since the original 1944 version. To be sure, the court is powerless to contradict the Rules where they have spoken, just as the court cannot contradict a statute, [citing] Carlisle v. United States,); Bank of Nova Scotia v. United States. But it is Rule 57(b), not Carlisle or Bank of Nova Scotia, that informs us what a court may do when the Rules are silent.”

It is doubtful that the Circuit’s ruling declares open season on novel claims justifying disclosure of grand jury materials, especially for defendants and former subjects of such investigations. The appeals panel noted that the “district court engaged in a thoughtful and comprehensive analysis of the pros and cons of disclosure before granting Carlson’s request, and we are content to let its analysis stand.” Nevertheless, district court denials of requests for release of grand jury materials clearly may no longer rely on rote application of the “exclusivity” rule.

Carlson v. United States, Case No. 15-2972 (7th Cir., Sept. 15, 2016)

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“THE ENEMY IS THE CLOCK” ON CRIMINAL JUSTICE REFORM

The New York Times reported Friday that criminal justice reform – most notably the Sentencing Reform and Corrections Act of 2015 – “is effectively dead.”

The Times quoted Senator Richard J. Durbin (Illinois), the second-ranking Democrat in the Senate (and one of the prime movers on criminal justice reform) as saying of the failure, “We missed an opportunity.”

Senator John Cornyn (Texas), the second-ranking Republican in the Senate, echoed Sen. Durbin’s frustration: “It is one of the things that makes this a frustrating place to work.”

The Times said there is virtually no chance the Senate will pass the legislation in the waning days of the year, calling SCRA’s failure “a stunning display of dysfunction given the powerful forces arrayed behind legislation meant to provide a second chance for nonviolent offenders facing long prison sentences while also saving tax dollars on prison costs.”

The House of Representatives still plans to move forward on a floor vote on a package of six criminal justice reform measures this month, according to plans announced in July by House Speaker Paul Ryan (R-Wisconsin). Holly Harris, executive director of the U.S. Justice Action Network, a leading bipartisan coalition behind the legislation, says, “I think we are close, [but] the enemy is the clock.”

This week, the House will dispose of at least 49 bills this week under “suspension of the rules,” which means each bill can only pass with a two-thirds majority vote, debate is limited to 40 minutes on each measure, and no bill up for a vote can be amended. Unfortunately, the criminal justice package is not included on the list.

Among the bills set for action include designating postal facilities, the “District of Columbia Judicial Financial Transparency Act,” “Modernizing Government Travel Act,” “Iranian Leadership Asset Transparency Act,” and “Cyber Preparedness Act of 2016.”

Still, Congressman Jim Sensenbrenner (R-Wisconsin), chairman of the House Subcommittee on Crime, Terrorism, Homeland Security and Investigations, remained optimistic last week that many of the 11 bills passed out of the House Judiciary Committee will be voted on this month. He wrote that Speaker Ryan “expressed earlier this year his desire to see criminal justice reform legislation come to a Floor vote this month, and as Congress reconvenes, it looks as though there is a strong possibility that it will.”

However, Adam Brandon – president of the conservative advocacy group FreedomWorks – warned last week that “the window of opportunity for passage is rapidly closing on three criminal justice reform bills — the Sentencing Reform [and Corrections] Act (H.R. 3713), the Recidivism Risk Reduction Act (H.R. 759) and the Criminal Code Improvement Act (H.R. 4002) — all of which have already passed the House Judiciary Committee unanimously… With the House set to adjourn on Sept. 30 and the Senate set to follow suit a week later, [these bills] look increasingly likely to become casualties of the race for the exits as lawmakers head home to campaign for re-election.”

The Marshall Report, a criminal justice reform group, said today “the vaunted bipartisan drive to enact federal criminal justice reform is not quite dead. But its pulse is faint.”

Supporters of reform are engaged in last-ditch lobbying, hoping to convince House lawmakers that reform is a matter of public safety and fiscal prudence. But, as The Marshall Report put it, “Gloomier advocates say that even if Ryan delivers in the House, it would take a near-miracle to get anything bold through the Senate.”

Some reformers think the most Congress might pass is a reprieve for a small group of crack cocaine offenders. “Back in 2010, Congress reduced sentences for inmates who were punished under a law that treated crack cocaine far more severely than powder cocaine,” The Marshall Report said. “An estimated 5,800 people convicted before 2010 remain imprisoned. Congress could make these prisoners retroactively eligible for a judicial review of their sentences.”