Sunday, May 13, 2018

AEDPA’s Rorschach Test

Edward Lang is condemned to die. During his murder trial, the system malfunctioned twice: a member of the victim’s family was on the jury until the second day of trial, and defense counsel did not present or uncover the details of Lang’s terrible childhood. On Friday, the Sixth Circuit issued an opinion addressing whether the Ohio courts that adjudicated Mr. Lang’s appeal reasonably applied U.S. Supreme Court precedent. The panel split. Two judges said that the Ohio courts’ tolerance for these errors was reasonable. Judge Moore dissented.

In many ways, this case is more about the deferential standard of review required by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, commonly referred to as “AEDPA” (ED-pah), than the constitutional questions it raises. Bill Clinton signed AEDPA into law after the Oklahoma City bombings. (The Intercept has an interesting story about AEDPA’s legislative history.) In Criminal Law 2.0, former Ninth Circuit Judge Alex Kozinski had this to say about the statute:

Hidden in its interstices was a provision that has pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred. We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.

AEDPA is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice. It has resulted and continues to result in much human suffering. It should be repealed.”

Many others agree with that point of view. Because I am a federal public defender, you can probably guess what my view is.

I believe Lang’s case illustrates AEDPA in action and provides an opportunity for you to judge for yourself whether the AEDPA standard of review is good policy.

1.     The Remmer Claim

The judge, prosecutor, and defense counsel did not learn that one of the jurors was related to the victim until they noticed the juror nodding and smiling at the victim’s family members who were in the gallery. On the second day of trial, the victim’s father approached the prosecutor and revealed that the juror was the victim’s niece by marriage. When questioned by the judge, the juror confirmed the relationship, but said that she did not know much about the murder and had not shared with other jurors any information about her relationship to the deceased. The court dismissed the juror and then brought the remaining members of the jury back for questioning. The court told the remaining jurors that the juror “may have had a relative relationship with either a witness or a party or somebody that was involved in the case.” The judge asked the jurors if she had told them about this relationship, and the judge accepted the jurors’ silence as a “no.” The court asked no more questions, and the trial proceeded.

On appeal, Lang argued that the trial court did not adequately investigate or address the impact the biased juror had on the outcome. When faced with a claim of juror bias, Remmer v. United States, 347 U.S. 227, 230 (1954), requires trial judges to “determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.” Petitioners must prove actual bias.

The Ohio Supreme Court rejected Lang’s claim of juror bias, reasoning that the trial court had done enough by asking the biased juror and the other members of the jury whether she had discussed her relationship with the victim. Never mind that defense counsel did not ask to question the remaining jurors individually.

The Sixth Circuit majority said that the Ohio Supreme Court’s decision to sanction this one-question Remmer was not unreasonable or contrary to Supreme Court law. Why? The trial court removed the juror, and she did not participate in deliberations. Both the prosecutor and defense counsel were present when the judge questioned the jurors. And the biased juror’s assurances and remaining jurors’ silence was enough to dispel any concern that the deliberations were unaffected by her presence. Plus, Remmer articulates a generalized standard, and the Ohio courts get a lot of leeway when deciding whether they have complied with the Supreme Court’s generalized standards.

Judge Moore disagreed. She said the trial court’s inquiry “was less than minimal,” and the single question “was overly narrow because it focused only on whether Juror 386 had revealed her relationship to [the victim] to her fellow jurors, and not on whether Juror 386 had tainted the remaining jurors’ ability to be impartial through other biased comments.” She also believed that because “being forced to speak up in front of the rest of the jury panel [has] a depressing effect on [individual jurors’] ability or willingness to be forthcoming.” She argued that the trial judge had to engage in a more searching inquiry to determine whether the juror’s presence and sudden absence impacted juror impartiality. She compared the judge’s conduct to “a doctor trying to determine if a patient had caught an infectious disease from an afflicted acquaintance by asking only if the patient had shared a drink with that person” without “determining whether the two individuals had other interactions through which the disease could be communicated.” In Judge Moore’s view, the Ohio courts unreasonably concluded the Remmer inquiry was so limited.

The majority and Judge Moore disagreed about whether it is reasonable to believe the one-question Remmer hearing adequately addressed the potential for jury bias. What do you think?

2.     The Strickland Claim

Lang presented two reasons to believe his attorney rendered ineffective assistance: (1) the attorney failed to investigate and present mitigation evidence about his horrific childhood; and (2) during closing arguments, counsel described Lang’s childhood as “normal” when it was anything but. To prevail, Lang had to satisfy the Strickland standard: (1) counsel’s performance fell below an objective standard of reasonableness; and (2) that deficient performance prejudiced Lang. Strickland is already a deferential standard that gives defense counsel a lot of leeway to make strategic decisions. And the Supreme Court has said, federal habeas courts must give “double deference” to defense counsel’s decisions.

So, what did Lang’s attorney do during the mitigation phase? He called Lang’s half-sister and mother to testify. Both said that Lang lived with them until he was 10, when Lang’s father abducted him for two years. Lang’s father had been mostly absent from his life because he was incarcerated after setting fire to Lang’s apartment, molesting a girl, and raping Lang’s mother. They neglected to mention: that Lang’s father sexually and physically abused him, that Lang saw his father tie his mother up for days and force her to perform oral sex, that he shot out windows, that he stabbed Lang’s mother in the chest with scissors, and that Lang was in the house when his father set fire to it. These witnesses also did not describe the torture Lang endured when his father abducted him. His father locked Lang in a room for days and beat him with anything in sight. The jury did not learn that Lang started using drugs during that time to numb the pain. Also missing from the mitigation testimony was information about Lang’s older brother, who physically and sexually abused Lang and his sister.

These facts were missing from the record, in part, because Lang’s counsel did not obtain Lang’s foster care records corroborating these details until after the mitigation phase had ended and the jury had recommended a death sentence. The defense psychologist could not write a report with the benefit of all of the records. And Lang’s mitigation specialist met with Lang’s mother for only 25 minutes 10 days before the mitigation phase began. Lang’s attorney had met with her only once before, the day before the mitigation phase began. He chose either to overlook this evidence or never learned it in the first place. And then, during closing argument during the mitigation phase, counsel told the jury that Lang’s childhood before he was abducted was “normal.”

The Ohio courts rejected Lang’s claim of ineffective assistance of counsel, reasoning that counsel conducted sufficient investigation and made a strategic choice not to present evidence of how Lang’s father treated him before abducting him. The Ohio Court of Appeals suggested that strategy played a role because information about Lang’s early childhood would discredit his mother’s testimony because she was also abusive. Finally, the Ohio courts said Lang wasn’t prejudiced by his attorney’s under-preparation because the additional information about his horrific childhood was just cumulative.

The majority of the Sixth Circuit held that these determinations were reasonable, hypothesizing that Lang’s counsel chose not to call a psychologist or introduce records because they showed that Lang was violent, anti-social, and hyper-sexual at a young age. Also lacking, said the majority, was sufficient evidence proving that Lang’s counsel made decisions about the mitigation strategy without adequate information. The court faulted Lang for not offering direct evidence of counsel’s mitigation strategy. Finally, the court said that the Ohio courts reasonably concluded that the additional information about Lang’s early childhood was cumulative, and therefore was unlikely to impact the jury’s decision to impose a death sentence.

Judge Moore was not so impressed by the Ohio courts’ handling of Lang’s IAC claim. Citing the professional standards of the America Bar Association, she argued that trial counsel’s failure to find available documentary evidence and learn more about Lang’s childhood fell below professional standards in death penalty cases. The investigation was so lacking, she explained, that counsel could not have made a reasonable strategic decision not to present the information. She similarly rejected the Ohio courts’ view that presenting this evidence would have undermined the credibility of Lang’s mother and dehumanized Lang. Finally, Judge Moore could not accept the Ohio courts’ conclusion that Lang was not prejudiced by his counsel’s underwhelming performance. She faulted the Ohio courts for suggesting that this mitigation evidence would have to impact every juror, when the Supreme Court has said, when analyzing prejudice, the question is whether there is a reasonable possibility the omitted mitigation evidence would have influenced one juror. In her view, the Ohio court’s prejudice analysis was lacking.

The central disagreement was about whether the Ohio courts reasonably applied the Strickland standard to these facts. Was it reasonable to say that defense counsel made reasonable strategic choices? Was it reasonable to conclude that Lang suffered no prejudice? What do you think?

* * *

There is no doubt that AEDPA’s standard of review drove the outcome in this case. But Judge Moore posed a question that is also worth considering: When a man is condemned to die, does Due Process demand this little? She “do[es] not believe . . . that the protections guaranteed by our Constitution are so minimal.”

How about you?

Tuesday, May 08, 2018

6th Circuit Says a Building is a Building, Not a “Building”

Today, the Sixth Circuit added yet another case to the Federal Reporter that parses the language of a state statute to determine if it describes a “violent felony” under the Armed Career Criminal Act. The court could not hide its exasperation with these sorts of issues, commenting that Jimmy David Malone’s “appeal presents the latest episode in the saga of determining whether a prior conviction is a ‘violent felony.’” Tiresome as the litigation may be, the answers to these questions matter to people like Mr. Malone, whose must serve no fewer than 15 years in prison if the court says their prior conviction is a violent felony.

Kentuckian Jimmy Malone argued that his second-degree burglary was not a violent felony. The Sixth Circuit decided today that Kentucky’s second-degree burglary statute defines a violent felony, while Tennessean Victor Stitt, who also committed a burglary, is free of the 15-year minimum (for now).

The Kentucky second-degree burglary statute starts off simply: “A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling.” Ky. Rev. Stat § 511.030(1). But the statute has a few definitions that complicate matters. Section 511.010 expands the meaning of “building” to include “any structure, vehicle or aircraft: (a) where any person lives; or (b) where people assemble for purposes of business, government, education, religion, entertainment or public transportation.” The statute also defines “dwelling” to mean “a building which is usually occupied by a person lodging therein,” and “premises” to mean “the term ‘building’ as defined herein and any real property.”

The question for Sixth Circuit was whether a dwelling means a building where someone lives or a “building” where someone lives, which could include a vehicle or boat. For now, Stitt says that burglaries of vehicles or boats designed for human habitation are non-generic for purposes of the ACCA. But the Sixth Circuit concluded that Kentucky legislators acted intentionally when they referenced a “building” in the definition of the term “premises,” but omitted the quotation marks in the definition of a dwelling. And so, Kentucky’s second-degree burglary statute is generic, and Mr. Malone is an armed career criminal.

Never have quotation marks mattered so much.

Friday, April 27, 2018

Admission of Prior Domestic Violence as Res Gestae Evidence Is Harmless

     In United States v. Brown, the Sixth Circuit considered the district court's admission of 9-1-1 calls in a firearm possession case in which the caller referenced prior domestic violence perpetrated by the defendant. The district court admitted the evidence at trial and reasoned that the evidence was "inextricable intertwined" with the offense conduct. The defendant had been charged under 922(g) with possessing a firearm after he was alleged to have shot a windows in a home where his girlfriend was staying with an aunt. The tape included statements by the girlfriend that the defendant was dangerous. The district court refused to redact portions of the 9-1-1 calls and would only allow them to be played in their entirety.
     The Sixth Circuit has historically permitted background evidence when there is a close connection between the charged offense and the proffered background evidence.In Mr. Brown's case, the Sixth Circuit concluded the district court actually did abuse its discretion in not allowing for a redaction of the tapes. The district court incorrectly "relied on the temporal proximity of the calls themselves, not the temporal proximity of the domestic violence referred to." Because there was nothing "to support that these references are intrinsic to the story being told," they should have been excluded. Particularly noteworthy is the Sixth Circuit's statement that because Mr. Brown was charged with a gun possession crime, references to his violent past or history of domestic violence "was not necessary or integral" to telling the story of what occurred on the day in question.
    However, the Sixth Circuit ultimately held that the error was harmless because the Court was not convinced that the error affected Mr. Brown's substantial rights or contributed to his conviction.

Tuesday, April 17, 2018

Sixth Circuit Again Denies Johnson Habeas Relief

The Sixth Circuit's recent published decision in Potter v. United Statesaffirming the district court's denial of a post-Johnson habeas petition, is yet another decision restricting Johnson habeas relief.  In this case, Potter filed a habeas petition requesting resentencing in light Johnson by claiming his Georgia burglary conviction no longer qualified as a "violent felony" after the Supreme Court's decision.  The district court denied his motion, holding that the conviction still qualified under the Armed Career Criminal Act's ("ACCA") enumerated offense clause.

Potter fared no better on appeal.  Noting that Potter's presentence report did not specify under which clause his burglary conviction qualified under the ACCA and that he did not challenge that part of the report, the Court concluded the district court could find that the conviction qualified under the enumerated offense clause.  It was up to Potter, the Court concluded, to prove the district court relied upon the ACCA's now-defunct residual clause.  Further, the Court deferred to the district court, which, it claimed, was in the best position to know whether it relied upon the residual clause.

On a parting note, the Court also issued a general advisory to future Johnson habeas cases: if you are going to seek a resentencing under Johnson, bring some proof the district court relied upon the residual clause.  Johnson, the Court held, did not "open the door" for collateral attacks any time the district court may have relied upon the residual clause.

Court Holds Third-Party Exception Applies to Cell Phones

May police officers reasonably rely upon the apparent authority of another to unlock and search a cell phone?  According to the Sixth Circuit in United States v. Gardner, they may.

Gardner, an adult, was in an intimate relationship with B.H., who was seventeen, and thus, a minor.  Gardner began positing invitations for dates and sex with B.H. on the website,  His postings invited "customers" to call or text B.H. using his cell phone number.  When B.H. began objecting to the meetings, Gardner threatened her.

Gardner's activities soon caught investigators' attention.  On October 10, 2017, Gardner posted an advertisement for B.H. on Backpage and listed his cell phone number as the contact number.  An undercover officer called the number an arranged a meeting with B.H. at a local motel.  When B.H. arrived, the officer disclosed his identity and alerted his fellow task force officers, who entered the hotel room and began conducting a search.  During their search, officers found a white iPhone, which B.H. said belonged to her.  In addition, B.H. authorized the officers to search the phone and provided them with the pass code.

A federal grand jury subsequently indicted Gardner for one count of trafficking a minor for sex and one count of producing child pornography by using his phone to distribute pictures of B.H.  Prior to trial, Gardner filed a motion in limine seeking to suppress evidence obtained from his cell phone.  Crucial to Gardner's argument before the District Court and before the Sixth Circuit was his claim B.H. lacked the apparent authority to consent to the search of his cell phone.  Both courts disagreed.  Although it recognized the "singular" role cell phones play today, the Court concluded that "the third-party consent exception to the warrant requirement applies to cell phones all the same...."  The critical question, the Court then concluded, was whether a reasonable officer could believe B.H. had authority over the phone based on the facts available to them at the time of the search.  Noting how Gardner and B.H. had used the phone to set up their "meetings," that B.H. regularly had the same phone with her during such meetings, and that B.H. knew the pass code to the phone, the Court held a reasonable officer would have concluded B.H. controlled the phone and that B.H. had the apparent authority to permit a warrantless search of Gardner's phone.

Although he has not researched this issue, the author is curious whether the result would have been different had B.H. admitted it was not her phone but that she still knew the pass code.  If a person gives a third party their pass code, does that fact, by itself, constitute apparent authority?


Monday, April 09, 2018

Sixth Circuit Curbs Anticipatory Warrants

The Sixth Circuit last week, in United States v. Perkins, issued a very helpful decision for criminal defendants, affirming suppression of evidence obtained through a faulty "anticipatory warrant." Specifically, the court held that, if a warrant requires delivery of a package to a particular person, then its delivery to another person, even at the same address, is not enough to establish probable cause.

Anticipatory warrants require a "triggering event" to establish probable cause. If that triggering event doesn’t occur, and police searched anyway, suppression ensues, right?

It isn’t quite that easy. Warrants must not be read "hypertechnically" but in a "commonsense fashion." For example, in an earlier case, the warrant required that a package be delivered to a residence and "taken by someone inside." But officers actually delivered the package to someone who had just left the house and then left the premises altogether. It would be "hypertechnical," the court said, to read the warrant to require the package to be taken by someone remaining in the house.

In Perkins’s case, the warrant required hand delivery to Perkins as the triggering event. It was "hardly hypertechnical," the court ruled, to read this language to mean exactly what it says. So when officers (who hadn’t actually read the warrant) delivered the package to Perkins's fiancĂ© instead of Perkins himself, there was no probable cause to search.

Judge Thapar, writing for a unanimous panel, rejected the government’s argument that the court could read the warrant to require delivery "to anybody inside the residence with apparent authority to accept delivery." Not so, he said, as "the replace-some-words canon of construction has never caught on in the courts."

Notably, the government did not argue that the search was “reasonable” under the Fourth Amendment even if the warrant was invalid, leaving that fight for another day.

Friday, March 30, 2018

Theft of Government Money Conviction Overturned - It Wasn't Government Money

United States v. Osborne

Defendant Osborne stole funds from Document and Packaging Brokers, Inc., who obtained their money from the US Government to run a program to increase recruiting to the Air National Guard.  The Government tried and convicted Osborne on the theory that the funds given to DPB were still Government funds, because the Government placed restrictions on the use of the funds, required reporting on the use of the funds, and created the program that was run by DPB. 

On appeal, Osborne argued that the Government did not retain "sufficient supervision and control over the funds involved such that the funds retained their federal character."  The Court agreed, finding, under a fact-bound inquiry, that (1) the Government did not prove that they maintained a reversionary interest in the funds, (2) the Government did not place sufficient restrictions on the use of the funds, and (3) the Government did not place sufficient accounting requirements on the use of the funds.  The Court also noted "It seems to us that the prosecution made the most unremarkable attempt to prove its case."  "Thus, we hold the government failed to provide sufficient evidence to support Osborne’s conviction under 18 U.S.C. § 641."

Congratulations to AFPD Andrew Brandon on a job well done.

Thursday, March 29, 2018

Another Playpen suppression reversed

United States v. Tagg

"The unique challenges of child-pornography crimes demand a practical approach to the probable-cause question."  With that standard in mind, the Court in Tagg overturned a district court's suppression of a search warrant.  This is another case coming as a result of the Government's operation of the Playpen website on the Dark Web. 

The Court first delineated between evidence supporting a conviction and that supporting a search warrant.  "[E]ven if the person never viewed illegal child pornography, knowingly accessing a child-pornography website with the intent to view illegal materials is itself a criminal act. It follows from this language that probable cause to search Tagg’s house would exist even if he was 'curiosity
shopping' for child porn on Playpen but never actually viewed an illegal image."  Thus, the actions in accessing the website and browsing it were sufficient, and the Government was not required to prove that actual images were accessed and downloaded in order to obtain the warrant.  "[T]he affidavit
need not “show” that Tagg had unlawful intent—it only needed to allege facts that create a reasonable probability that Tagg had an unlawful motive."  The Court thus reversed the district court's suppression decision.

A final note: the opinion does a good job of explaining, in simple terms, how Tor, Dark Web, and IP addresses work.  If you need to explain these to someone, this is a good primer.

Gun possessed 3 months earlier NOT relevant conduct of later gun possession

United States v. Amerson

In May, 2016, Defendant Amerson got into an argument and was shot.  During the investigation, officers found a firearm in Amerson's friends vehicle.  Amerson's DNA was on that firearm.  In late August, 2016, Amerson's apartment was searched, and another firearm was found.  Amerson was prosecuted under 18 U.S.C.  § 922 for the firearm found in August.  At sentencing, the court increased the sentence under USSG § 2K2.1(b) for the May 2016 firearm.  This increased his sentencing range from 57-71 months to 70-87 months.  Amerson received a sentence of 76 months.

On appeal, Amerson argued that any possession of firearms in May was not part of the same "common scheme or plan" as the August possession.  And the Court agreed.  The Court found that, in order to meet the common scheme or plan standard, the Government was required to prove "similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses."  Here, the Court noted that the Government had not proved regularity - proving that the conduct occurred on two occasions was not enough - as every relevant conduct argument involves at least two occasions.  Second, the Court held that there was little similarity between the possessions.  Finally, the Court held that "while the government showed some evidence of temporal proximity, a several-month gap between illegal possessions is not strong enough timing evidence to overcome a complete lack of regularity and prove that the possessions were part of the same course of conduct."    The Court therefore remanded for resentencing.