Thursday, March 16, 2017

Court overturns life sentence on murder conviction due to counsel's lack of advocacy

"Ladies and gentlemen given the dispatch with which you resolved all the holes in the government’s case that I spent two days pointing out, it’s apparent to me that I’m some how not communicated with you during the first part of the trial. So I don’t intend to take anymore of your time in this part."

That argument was apparently the sum of defense set forth in a death penalty penalty phase proceeding.  Defense counsel, in addition to making the above bare bones argument, refused to make an opening statement, did not present any evidence in mitigation, and did not object or make any suggested additions or changes to the jury instructions.  The jury suggested a sentence of life, which the court imposed.

The Sixth Circuit, reviewing the matter for habeas relief, found that counsel's conduct (or lack thereof) amounted to ineffective representation warranting habeas relief.  Phillips v. White, 15-5629   "[C]ourts are generally reluctant to accept something as stark as not investigating or presenting mitigating evidence at capital sentencing as a reasonable tactic. Failing to argue against the death penalty and advocate for a lesser sentence is even less reasonable. For these reasons, Charles’s sentencing performance was clearly deficient."  In fact, the Court found that counsel did so little in defense that prejudice would be presumed.

As a side note, the State had tried to argue that Phillips 2254 petition should be dismissed for failing to exhaust his state remedies.  But the Court noted that the state court had simply never ruled on Phillips claims, despite having them since 2008 (it didn't help that the state sentencing judge, while holding on to the claim, himself got indicted and convicted of a criminal charge.)  Under the circumstances, the "inordinate delay" allowed the claims to be adjudicated by the federal courts.

Wednesday, March 08, 2017

Court clarifies that restitution still makes no sense

Criminal law and money don't play well together, especially with indigent clients. Restitution is perhaps the  most head-scratching part of this crime/money nexus. To a civil lawyer, the thought that a court could enter a $2 million judgment (that is not dischargeable in bankruptcy) against someone without the parties ever conducting a single deposition or hiring a damages expert is patently absurd. But in criminal law it is routine. Defense lawyers are usually so occupied trying to keep their clients out of jail that they spend little time worrying about outlandish restitution requests. Despite mild push-back from the Supreme Court in the most outrageous cases like Paroline v. United States, it is likely that courts will rubber-stamp restitution orders anyway. Today's published opinion in  Sizemore offers an example.

Sizemore addresses a rare federal vehicular manslaughter case. The defendant pleaded guilty and agreed to pay restitution to the victims. While there was no doubt that the victim and his family suffered compensable losses, the court's ultimate order of approximately $230,000 raised several questions. First, was the district court allowed---or even required---to take into account the defendant's ability to pay when entering a restitution award? And second, should the court have reduced the award by amounts that the victims had already received from the defendant's insurance company in compensation for their injuries?

Regarding the first question, the law creates a bizarre contradiction: on the one hand, 18 U.S.C. § 3663 requires a court to consider the "financial resources of the defendant" in determining whether to order restitution; on the other hand, 18 U.S.C. § 3664 prohibits courts from considering the "economic circumstances of the defendant" in determining how much restitution to order. The Sizemore court found no contradiction at all. The law means what it says. But this creates a sort of "restitution gap": if the victim has $1 million in losses, and the defendant cannot possibly pay $1 million, the court could would have the discretion to order (1) no restitution, or (2) $1 million in restitution, but under no circumstances could it order, say, $100,000 in restitution, or some other amount that the indigent defendant might one day have a hope of repaying. 

Regarding the second question, the law specifically states that restitution should be reduced by "any amount later recovered as compensatory damages for the same loss by the victim" in other court proceedings. 18 U.S.C. § 3664(j)(2). The obvious point of this is to avoid double recovery, given that restitution is supposed to make a victim whole, not punish the defendant. But Sizemore rejects this rationale, suggesting that a private settlement "does not preclude a district court from imposing a restitution order for the same underlying wrong." The court even agreed with the district court that an amount paid out to the victim by the defendant's insurance company was not "later recovered" because the insurance company paid before that restitution award was entered. That is, the defendant is punished because his insurance company acted quickly. Huh.

Monday, March 06, 2017

The Beckles disappointment

The Beckles decision issued today, and it did not go well. If you were not in the trenches after Johnson, if you did not file hundreds of 2255 petitions raising claims based on Beckles, it will be difficult to understand the scale of this disappointment. Worse, if you are one of the tens of thousands of federal prisoners sentenced under the career offender guideline and awaiting the outcome of this case, the decision is devastating.

In short, Beckles holds that the advisory sentencing guidelines are not susceptible to a due process vagueness challenge. They are discretionary, you see, so the vagueness doctrine's twin emphasis on providing notice and preventing arbitrary enforcement do not apply. If a judge can sentence anyone to any sentence within the statutory range, then why would someone need notice of the guidelines? This holding will create some cognitive dissonance for federal defenders everywhere, for whom the question of whether a client is a career offender determines the entire course of any given representation, especially the plea process. But that is behind us for now.

So what is left? First, it is important to note that this opinion is limited to the discretionary guidelines, not the pre-Booker mandatory guidelines. Any mandatory guidelines cases should still be alive. Second, the decision states that even though a vagueness challenge under the due process clause must fail, the Court has nevertheless recognized that, under the Eighth Amendment, "a district court’s reliance on a vague sentencing factor in a capital case, even indirectly, can taint the sentence." Should Beckles petitioners raise Eighth Amendment claims? Are there other appeal issues remaining?

The phone calls from disappointed clients will begin today, but the process of digesting this decision will continue for some time.

Wednesday, March 01, 2017

Copy/paste for cert petition

Judges Merritt, Batchelder, and Rogers do NOT like Sixth Circuit precedent on an issue and, boy howdy, they tell counsel just what needs to be done to get the Supreme Court's attention. John Turner v. United States, No. 15-6060 concerns at what point the Sixth Amendment right to counsel (and thus effective assistance of counsel) begins. Sixth Circuit precedent says it does not attach until after formal charges are filed. As detailed in Turner, there is a Circuit split on the issue, and it is an important issue because of just how often defendants run up against this sort of state/federal prosecution.

Quick facts: Mr. Turner was charged with robbery in state court. Counsel was appointed to represent him in the state court prosecution. While the state charges were pending, the U.S. Attorney's office reached out to his attorney to discuss a plea in federal court to as-yet-unindicted charges arising from the same conduct. If Mr. Turner accepted the offer pre-indicment, he would get 15 years in prison. After indictment, he faced a mandatory minimum sentence of 82 years. Mr. Turner rejected that offer. He was charged federally. He accepted a less-favorable plea deal. He brings a 2255 based on ineffective assistance of counsel during the initial pre-charge negotiations. If Mr. Turner has the right to counsel pre-charge, he has the right to effective assistance of counsel. If he does not have the right to counsel pre-charge, the courts cannot even contemplate an IAC claim.

While the Supreme Court has recognized the right to effective assistance of counsel during plea negotiations, it has yet to consider the right to counsel in preindictment plea negotiations. The Sixth Circuit has strongly adhered to the notion that the right to counsel attaches once formal charges are filed. Turner notes that five other circuits have a similar bright-line test, while four "allow a rebuttable presumption to the argument that the right to counsel attaches only after formal charges are filed." Turner even gives links to articles on the subject.

It's an interesting opinion given its frankness about the federal process and the need to have effective counsel at every critical stage. Hopefully, Mr. Turner will take the Sixth up on their very thinly veiled suggestion for pursuing Supreme Court review.

Monday, February 13, 2017

The Right to Counsel of Choice

   In United States v. Powell, the Sixth Circuit held the district court abused its discretion by allowing one but not both of defendant Earnest Proge's attorneys to withdraw as counsel. Mr. Proge raised his dissatisfaction with counsel during the final pretrial conference. He took issue with what he perceived to be his attorneys' efforts to force him to enter into a plea agreement. Subsequently, counsel briefed its request to withdraw as counsel.

While the district court concluded that Mr. Proge was free to reject his counsel's advice and so there was no breakdown in the attorney-client relationship, the Sixth Circuit held the record supported a different conclusion. Mr. Proge's attorneys told him they had not been retained to represent him at trial, were not prepared or equipped for trial, and would not represent him if he chose to go to trial. Writing for the majority, Judge Guy held, "The conflict between Proge and his attorneys resulted in a complete lack of communication that weighs strongly in his favor."

The Sixth Circuit also noted the need to balance the defendant's right to counsel of choice with the public's interest in the efficient administration of justice. Because the district court put off making an inquiry, despite a specific request for new counsel, it was partly responsible for the short time between the denial of Mr. Proge's request and trial. In holding that Mr. Proge's Sixth Amendment rights were violated, the Sixth Circuit relied on the timely initial request for new counsel, the adequate but delayed inquiry of the district court, and the complete breakdown in the attorney-client relationship.

Judge Moore wrote a separate opinion, concurring in part and dissenting in part, in which she asserted co-defendant Carlos Powell should also have obtained relief from the district court's denial of his Faretta motion seeking self-representation. She also concluded that Mr. Proge's conflict with his counsel, absent any other factors, "should have impelled the district court to grant Proge's request to substitute counsel.

Sunday, February 05, 2017

Court Affirms Admission of "Prior Bad Acts" Against Sexual Assault Defendant.

In my blogs, I frequently try to write a humorous quip about the defendant, defense counsel, or the courts.  I can find nothing, however, humorous in the facts found in United States v. LaVictor.

In this case, the defendant, LaVictor, and his girlfriend, returned to LaVictor's mother's house on the Sault Ste. Marie Tribe of Chippewa Indians Reservation after a night of heavy drinking.  Early the following morning, LaVictor contacted emergency services and told them his girlfriend was bleeding from her vagina.  Subsequent medical examinations revealed evidence of sexual assault, which the girlfriend confirmed in her statements to the authorities.  The girlfriend subsequently repeated her allegations before a federal grand jury, which returned a five-count indictment charging LaVictor with: (1) attempted sexual abuse in violation of 18 U.S.C. § 2242(2)(B); (2) aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1); (3) assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6); and (4) domestic assault by a habitual offender in violation of 18 U.S.C. § 117.

After filing various pre-trial motions, LaVictor proceeded to trial.  During the trial, the Government called LaVictor's girlfriend as a witness.  The girlfriend subsequently recanted her testimony and testified that she consented to sex with LaVictor, even if he was "rough."  Over LaVictor's objection, the district court admitted the girlfriend's grand jury testimony as evidence of her prior inconsistent statements.  Additionally, after conducting a Daubert hearing, the district court permitted the Government to offer the testimony of an expert witness to testify about victim recantation.  As a final blow to LaVictor's defense, the court permitted the Government to introduce several of LaVictor's former girlfriends, who testified about uncharged episodes of prior sexual abuse.  It took the jury less than three hours to return guilty verdicts on all six counts.

LaVictor raised several arguments in favor of a reversal on appeal, including, among other things, the district court's decision to admit prior bad act evidence under FRE 404(b) and the entire grand jury transcript.  In a lengthy published opinion, the Court affirmed LaVictor's conviction.

Of the many interesting holdings in the Court's opinion, it first dealt with the testimony of the recantation expert.  Although it prior pronouncements on this issued had "been more muted," the Court held that expert testimony regarding a domestic violence victim's propensity to recant was relevant and not unduly prejudicial in LaVictor's case.

The Court then addressed the district court's decision to permit three of LaVictor's previous girlfriends to testify that they had previously been sexually assaulted by him, although they never reported the incidents to the police, and the police never charged him with a crime.  Although the Court acknowledged such testimony is generally prejudicial in a sexual assault case, it held that the district court did not err in concluding the evidence was probative to show LaVictor's intent to sexually assault his then-girlfriend and that the assault was not an accident or mistake.  The Court further held that the probative nature of the testimony outweighed the prejudice it caused under FRE 403.  Finally, and perhaps most importantly, the Court concluded that even if the district court had erred, any error in admitting the testimony was harmless in that it would not have affected the jury's verdict.

As a final note, the Court made an interesting holding regarding the definition of an "intimate partner" under the habitual domestic assault statute, 18 U.S.C § 117.  On appeal, LaVictor argued that the statute did not apply to him because he was not living with his girlfriend at the time he committed the sexual assault.  Noting that the Sixth Circuit had not yet defined the term "intimate partner," the Court examined similar language found in 18 U.S.C. § 2266 -- a statute requiring states to recognize protection orders issued in other states -- and concluded that the term applied to LaVictor and his girlfriend since they had previously been engaged in a lengthy, romantic relationship.

While the facts of this case are sad and represent an all too common occurrence, the Court's lengthy opinion provides a great road map of the many issues counsel might face in defending a sexual assault case in Federal court.  Counsel engaged in such a case should review this decision.

Thursday, February 02, 2017

Untimely Pre-Trial Motions: Clarification for "Unwary Counsel"

The Court has had a relatively quiet week with few published opinions.  One opinion, however, is worth a brief discussion.  In United States v. Trujillo-Molina, the defendant, who had been indicted for possessing a firearm while being illegally and unlawfully present in the United States, filed a motion to dismiss the indictment arguing that he was not, in fact, illegal because he had received relief from removal under ICE's Deferred Action for Childhood Arrivals ("DACA") program.  The problem, however, was that he filed the motion one month after the district court's pre-trial motions deadline.  The District Court subsequently denied the motion as untimely pursuant to Fed. R. Crim. P. 12.  

On appeal, the Court held, in an unpublished opinion, that the District Court did not abuse its discretion in denying the defendant's motion to dismiss as untimely.  While the Court's main holding was no surprise, the Court attempted to clarify, in a footnote, a point that it worried would cause confusion for "unwary counsel."  In particular, the Court reiterated that a party who fails to make a timely motion pursuant to Rule 12(b)(3) does not necessarily waive the issue he failed to raise in the motion.  Instead, the Court will review the issue for plain error.  Thus, the failure to timely file a timely pre-trial motion does not necessarily foreclose appellate review of the issue, although a defendant will have a difficult time in any appeal challenging the district court's denial of his pre-trial motion.