Per Johnson v. Folino (3d Cir. Jan. 16, 2013)
The standard of review governing alleged Brady violations is fairly well settled. A new trial (or habeas) will be granted only if (1) the state suppressed (2) material evidence (3) favorable to the accused.
The split at issue here concerns the second factor, i.e., how to determine if the suppressed evidence is material. Suppressed evidence is material if there is a reasonable probability of a different result if the evidence been disclosed.
The CA4 holds, as a matter of law, that inadmissible evidence can never be material. Other circuits--the CAs 1,2,6,11 and now 3--hold that while inadmissibility is a factor weighing against materiality, it is not a per se bar.
To be honest, the existence of this split surprised me. The majority school is simply correct. While inadmissibility is a factor (and perhaps a strong one) indicating that the supressed evidence could not have affected the trial, it is not outcome-determinative. For example, inadmissible evidence may later become admissible for purposes of impeachment, or may lead to the discovery of additional, and admissible, evidence by altering case-preparation strategies. And even if none of these events come to pass, the inadmissible evidence may at least alter case-presentation strategy, such as by inviting the jury to consider a theory that is plausible even though not supported by any (admissible) evidence.
Thus, the CA4 is simply wrong. Even the case it relies on goes beyond noting inadmissibility to show that the defense attorney would not have prepared any differently had the suppressed evidence been disclosed.
More generally, my Brady concern focuses mostly on the third factor--favorable to the accused. I am baffled by the issue of how a prosecutor is supposed to determine what is, and what is not, favorable.
Consider, for example, the sentencing of a drug dealer. Most prosecutors would think a former co-conspirator's admission regarding drug weight to be prejudicial. Yet, in one of my cases, we successfully used this evidence to mitigate our defendant's personal responsibility and obtain a variance. Nonetheless, had the prosecutor in that case not followed an open-file policy, he almost certainly would not have viewed the material as being subject to a Brady disclosure obligation.
My general line of work civil tort defense. I am consistently surprised by the ability of most plaintiffs lawyers to turn any fact, no matter how harmful on its face, into an apparent strength. Criminal defense attorneys often display the same adaptability. Yet a strict interpretation of favorability would limit such adaptation. Thus, I fall on the side of favoring open-file prosecutions in the interests of justice.
Showing posts with label Criminal Procedure. Show all posts
Showing posts with label Criminal Procedure. Show all posts
Tuesday, January 22, 2013
Wednesday, January 16, 2013
Split Noted: Is Cumulative Error Doctrine Clearly Established For AEDPA? Plus AEDPA Commentary
Per Lott v. Trammell (10th Cir. Jan. 24)
I will not claim to have read all of this 100+ page effort. Given the length and the subject--AEDPA--I assume without basis that it capital case.
Ah, AEDPA. The other 1996 statute that certain liberal jurists love to hate. Nowadays, to grant habeas relief to a state prisoner, a federal court must find that the state court's decision was either (1) contrary to, or (2) an unreasonable application of, (3) clearly established Federal law.
The split noted here concerns the third element; whether the cumulative error doctrine is clearly established. Clearly established Federal law is limited to the holdings of SCOTUS. In finding cumulative error analysis clearly established, the CA9 cites three different SCOTUS cases. On the opposite side of the split is, bizarrely, the CA6. I say bizarrely because the CA6 has actually been spanked more times on AEDPA recently than the CA9.
Even more bizarrely, at least for me, I believe the CA9 is right. The holding of Chambers v. Mississippi, 410 U.S. 284 (1973), is on point. Chambers's "claim, the substance of which we accept in this opinion, rests on the cumulative effect of those rulings in frustrating his efforts to develop an exculpatory defense." Id. at 290 n.3.
But I actually want to discuss AEDPA's second element in light of some recent civil tort work I've been doing. For a state court opinion to be "an unreasonable application of" Supreme Court law, it must be such that no reasonble jurist could possibly agree. This standard is functionally the same as the "no reasonable litigant" standard established for objective baselessness by PRE, 506 U.S. 49, 55-61 (1993).
But there is one difficulty. Any number of cases could be cited for the proposition that, if you get one judge (even in dissent) to agree with your position, that position cannot be objectively baseless as a matter of law. Thus, for purposes of Noerr immunity, courts are willing to assume that all jurists act reasonably.
In contrast, any number of cases could be cited where habeas was granted based on a state appellate court's unreasonable application of Supreme Court law. No longer is one lone voice enough to demonstrate reason. Now federal courts are willing to overrule even a majority of their state brethren.
Obviously, this disparity can be explained by having a thumb on the scale of constitutional rights. The any judge standard of PRE's progeny protects the First Amendment right to petition, while lack of any similar standard protects convicts right to due process.
But I think the more likely explanation is outcome-oriented jurisprudence. In a private dispute, there generally are not any larger principles or constitutional visions at stake. Whereas in habeas, the entire focus is on the larger principles of criminal justice. Thus, even though the standards call for the same amout of deference, certain jurists are simply less willing to defer in the latter situation than the former.
I will not claim to have read all of this 100+ page effort. Given the length and the subject--AEDPA--I assume without basis that it capital case.
Ah, AEDPA. The other 1996 statute that certain liberal jurists love to hate. Nowadays, to grant habeas relief to a state prisoner, a federal court must find that the state court's decision was either (1) contrary to, or (2) an unreasonable application of, (3) clearly established Federal law.
The split noted here concerns the third element; whether the cumulative error doctrine is clearly established. Clearly established Federal law is limited to the holdings of SCOTUS. In finding cumulative error analysis clearly established, the CA9 cites three different SCOTUS cases. On the opposite side of the split is, bizarrely, the CA6. I say bizarrely because the CA6 has actually been spanked more times on AEDPA recently than the CA9.
Even more bizarrely, at least for me, I believe the CA9 is right. The holding of Chambers v. Mississippi, 410 U.S. 284 (1973), is on point. Chambers's "claim, the substance of which we accept in this opinion, rests on the cumulative effect of those rulings in frustrating his efforts to develop an exculpatory defense." Id. at 290 n.3.
But I actually want to discuss AEDPA's second element in light of some recent civil tort work I've been doing. For a state court opinion to be "an unreasonable application of" Supreme Court law, it must be such that no reasonble jurist could possibly agree. This standard is functionally the same as the "no reasonable litigant" standard established for objective baselessness by PRE, 506 U.S. 49, 55-61 (1993).
But there is one difficulty. Any number of cases could be cited for the proposition that, if you get one judge (even in dissent) to agree with your position, that position cannot be objectively baseless as a matter of law. Thus, for purposes of Noerr immunity, courts are willing to assume that all jurists act reasonably.
In contrast, any number of cases could be cited where habeas was granted based on a state appellate court's unreasonable application of Supreme Court law. No longer is one lone voice enough to demonstrate reason. Now federal courts are willing to overrule even a majority of their state brethren.
Obviously, this disparity can be explained by having a thumb on the scale of constitutional rights. The any judge standard of PRE's progeny protects the First Amendment right to petition, while lack of any similar standard protects convicts right to due process.
But I think the more likely explanation is outcome-oriented jurisprudence. In a private dispute, there generally are not any larger principles or constitutional visions at stake. Whereas in habeas, the entire focus is on the larger principles of criminal justice. Thus, even though the standards call for the same amout of deference, certain jurists are simply less willing to defer in the latter situation than the former.
Saturday, January 12, 2013
Split Noted: Does Fed. R. Crim. P. 32(i)(1)(A) require an on-the record inquiry?
Per United States v. DeLeon (1st Cir. Jan. 11, 2013)
Federal Rule of Criminal Procedure 32(i)(1)(A) provides: "At sentencing, the court must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report." (Emphasis added)
The split noted (p. 13-14, n.7) in this CA1 opinion is whether the verification required by Rule 32(i)(1)(A) need be explicit and on the record. The CA1,3,5, and 6 all hold that this specific inquiry need not be explicit, so long as it is clear from the record that the defendant and the attorney have discussed the report. The CA7 requires an explicit inquiry.
I agree with the CA7. After all, the definition of verify is to "prove the truth of, as by evidence or testimony." (Emphasis added.)
That said, I dont think the split matters at all. First, if--as per majority school--it is apparent from the record that the defendant and the attorney have discussed the report, the failure to perform an explicit inquiry is necessarily harmless and should be disregarded. Fed. R. Crim. P. 52(a). Second, a district court could fail to make an explicit inquiry only if there is no objection. Thus, appellate review of this issue will always be for plain error under Fed. R. Crim. P. 52(b).
Nonetheless, I think the better rule would be to instruct district courts that it is error (albeit virtually irreversible error) not to conduct an on-the-record inquiry into whether the defendant and attorney have reviewed and discussed the PSR. Such an instruction would allow district courts to improve their sentencing checklists, and cohere more closely with the terms of the rule.
Federal Rule of Criminal Procedure 32(i)(1)(A) provides: "At sentencing, the court must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report." (Emphasis added)
The split noted (p. 13-14, n.7) in this CA1 opinion is whether the verification required by Rule 32(i)(1)(A) need be explicit and on the record. The CA1,3,5, and 6 all hold that this specific inquiry need not be explicit, so long as it is clear from the record that the defendant and the attorney have discussed the report. The CA7 requires an explicit inquiry.
I agree with the CA7. After all, the definition of verify is to "prove the truth of, as by evidence or testimony." (Emphasis added.)
That said, I dont think the split matters at all. First, if--as per majority school--it is apparent from the record that the defendant and the attorney have discussed the report, the failure to perform an explicit inquiry is necessarily harmless and should be disregarded. Fed. R. Crim. P. 52(a). Second, a district court could fail to make an explicit inquiry only if there is no objection. Thus, appellate review of this issue will always be for plain error under Fed. R. Crim. P. 52(b).
Nonetheless, I think the better rule would be to instruct district courts that it is error (albeit virtually irreversible error) not to conduct an on-the-record inquiry into whether the defendant and attorney have reviewed and discussed the PSR. Such an instruction would allow district courts to improve their sentencing checklists, and cohere more closely with the terms of the rule.
Split Widened: Yardstick by which to evaluate Governmental Interest in Medicating Criminal Defendant
Per United States v. Gutierrez (5th Cir. Jan. 11, 2013)
Sell v. United States, 539 U.S. 166 (2003), sets the due process standard for forcibly medicating a criminal defendant in order to achieve competency. In brief, the government must show "[1] the treatment is medically appropriate, [2] is substantially unlikely to have side effects that may undermine the fairness of the trial, and, [3] taking account of less intrusive alternatives, is necessary significantly to further [4] important governmental trial-related interests." Id. at 179.
Sell provided additional instructions concerning each of its four factors. The split at issue in this case (p. 13) concerns the fourth Sell factor, namely how to determine if the government has important trial-related interests. Sell listed a number of subfactors bearing on this inquiry, including:
Most circuits, including now the CA5, look to statutory maxima authorized for the indicted crimes to determine both whether the crime is serious and the potential length of confinement. (See p. 13, citing decisions from the CA2, CA4, and CA10.) In contrast, the CA9 looks to the probable guidelines range rather than the statutory maxima.
The CA5 provides a number of strong reasons for its view, including that the guidelines range cannot be determined without a pre-sentence investigation into the offender's history and characteristics, and even it could be, the guidelines range remains only advisory.
Nonetheless, I come down somewhere in the middle of the split. A court should not consider only the guidelines range, for the reasons stated by the CA5, but neither should a court consider only the statutory maxima, which are so rarely imposed. Instead, both yardsticks can be used together. A trial judge can use his experience--as under Twiqbal's plausibility standard--to determine what weight to give each yardstick.
At bottom, this split is likely caused by the use of a muddled, multi-factor due process test, and the inherent subjectivity of words like "important." The legal realist in me assumes that with such fuzzy tests, trial judges likely first arrive at what they view to be the appropriate result, and only then express their reasoning in a manner permitted by precedent. Recognizing this, I believe it better to permit trial judges to consider, and express, all relevant factors. And, for the reasons explained by courts on both sides of this split, the guidelines and the maxima are both relevant considerations.
Sell v. United States, 539 U.S. 166 (2003), sets the due process standard for forcibly medicating a criminal defendant in order to achieve competency. In brief, the government must show "[1] the treatment is medically appropriate, [2] is substantially unlikely to have side effects that may undermine the fairness of the trial, and, [3] taking account of less intrusive alternatives, is necessary significantly to further [4] important governmental trial-related interests." Id. at 179.
Sell provided additional instructions concerning each of its four factors. The split at issue in this case (p. 13) concerns the fourth Sell factor, namely how to determine if the government has important trial-related interests. Sell listed a number of subfactors bearing on this inquiry, including:
- whether the crime is serious,
- the availability of civil commitment, and
- the potential length of confinement after medication and trial.
Most circuits, including now the CA5, look to statutory maxima authorized for the indicted crimes to determine both whether the crime is serious and the potential length of confinement. (See p. 13, citing decisions from the CA2, CA4, and CA10.) In contrast, the CA9 looks to the probable guidelines range rather than the statutory maxima.
The CA5 provides a number of strong reasons for its view, including that the guidelines range cannot be determined without a pre-sentence investigation into the offender's history and characteristics, and even it could be, the guidelines range remains only advisory.
Nonetheless, I come down somewhere in the middle of the split. A court should not consider only the guidelines range, for the reasons stated by the CA5, but neither should a court consider only the statutory maxima, which are so rarely imposed. Instead, both yardsticks can be used together. A trial judge can use his experience--as under Twiqbal's plausibility standard--to determine what weight to give each yardstick.
At bottom, this split is likely caused by the use of a muddled, multi-factor due process test, and the inherent subjectivity of words like "important." The legal realist in me assumes that with such fuzzy tests, trial judges likely first arrive at what they view to be the appropriate result, and only then express their reasoning in a manner permitted by precedent. Recognizing this, I believe it better to permit trial judges to consider, and express, all relevant factors. And, for the reasons explained by courts on both sides of this split, the guidelines and the maxima are both relevant considerations.
Sunday, January 6, 2013
Split Noted: Is The Stain Of Conviction A Collateral Consequence
Per Murray v. United States (1st Cir. Jan. 4, 2013)
A petition for the writ of coram nobis, or its lesser known cousin coram vobis, is often the last desperate filing made by a post-jailhouse lawyer. The writ permits correction of "fundamental" errors in order to "achieve justice" when "no other remedy" is available.
The writ has been abolished in civil actions, superceded by Rule 60. But it lives on in criminal actions. In large part, it exists to provide review of convictions after the prisoner has served his sentence.
There is little enough jurisprudence regarding the legal standard applicable to the writ. Nonetheless, the circuits appear to agree on certain fundamental elements that a petitioner/convict must prove:
For me, the CA4, CA9, and CA11 have the better of the argument. As the Supreme Court recently reiterated, albeit in the context of declining to extend the presumption:
Moreover, there is a larger point. Assuming a petitioner proves the other elements for coram nobis, i.e., a fundamental error that was uncorrectable earlier, why should the petitioner (rather than the government) have the burden of proving collateral consequences? The fundamental error, or the existence of a grave miscarriage of justice, should be sufficient, in itself, to overcome the interests of finality absent proof that the erroneous judgment has no effect.
Take, for example, two people convicted of honest-services fraud under 18 USC 1341 before McNally limited the statute to money or property fraud. One is convicted in 1976 and sentenced to five years; the other convicted in 1986. Should the former be deprived of the same remedy afforded the latter (i.e., expungement of his conviction) simply because simply because his appeals were exhausted and his sentence was served? I think not. Both did not commit a crime. Both deserve to have their record and reputation restored, regardless of whether the former can actually prove a detrimental consequence.
Finally, the note on the first page of the First Circuit opinion suggests that Judge Boudin may be ill. I have always admired Judge Boudin's intelligence and opinions. I hope that my reading of the note is mistaken, but if it is not, I wish him all the best.
A petition for the writ of coram nobis, or its lesser known cousin coram vobis, is often the last desperate filing made by a post-jailhouse lawyer. The writ permits correction of "fundamental" errors in order to "achieve justice" when "no other remedy" is available.
The writ has been abolished in civil actions, superceded by Rule 60. But it lives on in criminal actions. In large part, it exists to provide review of convictions after the prisoner has served his sentence.
There is little enough jurisprudence regarding the legal standard applicable to the writ. Nonetheless, the circuits appear to agree on certain fundamental elements that a petitioner/convict must prove:
- a fundamental error in the prior proceedings
- reasonableness in not having acted earlier (i.e., though habeas)
- collateral consequences from the prior proceedings (standing)
- interests of justice require granting the writ (no alternative remedy)
For me, the CA4, CA9, and CA11 have the better of the argument. As the Supreme Court recently reiterated, albeit in the context of declining to extend the presumption:
In the context of criminal conviction, the presumption of significant collateral consequences is likely to comport with reality. As we said in Sibron, it is an "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences."Spencer v. Kemna, 523 U.S. 1, 12 (1997) (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)). And in Sibron itself, the Court held:
[I]t is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State's right to impose it on the basis of some past action.392 U.S. at 57. So long as Sibron remains good law, as indeed it is, lower courts should apply a presumption of collateral consequences to criminal convictions.
Moreover, there is a larger point. Assuming a petitioner proves the other elements for coram nobis, i.e., a fundamental error that was uncorrectable earlier, why should the petitioner (rather than the government) have the burden of proving collateral consequences? The fundamental error, or the existence of a grave miscarriage of justice, should be sufficient, in itself, to overcome the interests of finality absent proof that the erroneous judgment has no effect.
Take, for example, two people convicted of honest-services fraud under 18 USC 1341 before McNally limited the statute to money or property fraud. One is convicted in 1976 and sentenced to five years; the other convicted in 1986. Should the former be deprived of the same remedy afforded the latter (i.e., expungement of his conviction) simply because simply because his appeals were exhausted and his sentence was served? I think not. Both did not commit a crime. Both deserve to have their record and reputation restored, regardless of whether the former can actually prove a detrimental consequence.
Finally, the note on the first page of the First Circuit opinion suggests that Judge Boudin may be ill. I have always admired Judge Boudin's intelligence and opinions. I hope that my reading of the note is mistaken, but if it is not, I wish him all the best.
Thursday, January 3, 2013
Split Widened: Remedy for 6th Amendment Violations During Competency Hearings
Per United States v. Ross (6th Cir. Dec. 31, 2012)
Oh, the irony of law. In a case of apparent first impression, (see p. 10), a divided panel of the Sixth Circuit concludes that it is statutory and constitutional error to permit a criminal defendant, who has already been deemed competent and waived representation, to represent himself at a later competency hearing. (p. 8-9, 11.)
That's right. First, the defendant was deemed competent. Then, the competent defendant knowingly waived representation. Third, at the request of the prosecutor, the district court held a second competency hearing where it permitted the defendant to represent himself. Finally, and after conviction, the defendant claims error in permitting self-representation at the second competency hearing (when he had already invoked his right to self-representation).
One would think the doctrines of invited error and/or waiver would come into play. But of course, those doctrines assume knowing and voluntary, i.e., competent, acts.
The circuit split comes in determining the remedy for this constitutional error, or classifying the type of error. (See p. 16.) Ordinarily, Sixth Amendment violations are treated as "structural" errors, with a per se rule of reversal regardless of prejudice. The CA3--and now the CA6--applies that rule to denials of counsel at competency hearings. Nonetheless, the CA10 and CADC have treated denial of counsel for a competency hearing as "trial" error, subject to constitutional harmless error analysis.
Partially because of the bizarre facts of this case, I would be inclined to treat the error as "trial" error, in line with the approach of the CA10 and CADC. The two traditional justifications for the "structural" error doctrine are not present.
First, because the Court had already held a competency hearing and permitted Defendant to waive representation (at which times the Defendant was represented), there was no "structural defect affecting the framework within which the trial proceeds." Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Instead, there was a mere "error in the . . . process" of this one hearing. Id.
Second, because the defendant had already been found competent to waive counsel initially, his lack of representation does not "necessarily render [the] criminal trial . . . unreliable." Neder v. United States, 527 U.S. 1, 9 (1999). Instead, the initial competency hearing, as well as the waiver of counsel hearing, create an situation where the error--like "trial" errors generally--may “be quantitatively assessed in the context of other evidence presented in order to determine whether [the procedure] was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307-08.
Of course, my view depends on the particular facts of this case, whereas classification of constitutional errors must necessarily be done generally. In all, an interesting circuit split and decision, but one not likely to get further review due to the fact-bound nature of the case and the split.
UPDATE: additional coverage from Split Circuits
Oh, the irony of law. In a case of apparent first impression, (see p. 10), a divided panel of the Sixth Circuit concludes that it is statutory and constitutional error to permit a criminal defendant, who has already been deemed competent and waived representation, to represent himself at a later competency hearing. (p. 8-9, 11.)
That's right. First, the defendant was deemed competent. Then, the competent defendant knowingly waived representation. Third, at the request of the prosecutor, the district court held a second competency hearing where it permitted the defendant to represent himself. Finally, and after conviction, the defendant claims error in permitting self-representation at the second competency hearing (when he had already invoked his right to self-representation).
One would think the doctrines of invited error and/or waiver would come into play. But of course, those doctrines assume knowing and voluntary, i.e., competent, acts.
The circuit split comes in determining the remedy for this constitutional error, or classifying the type of error. (See p. 16.) Ordinarily, Sixth Amendment violations are treated as "structural" errors, with a per se rule of reversal regardless of prejudice. The CA3--and now the CA6--applies that rule to denials of counsel at competency hearings. Nonetheless, the CA10 and CADC have treated denial of counsel for a competency hearing as "trial" error, subject to constitutional harmless error analysis.
Partially because of the bizarre facts of this case, I would be inclined to treat the error as "trial" error, in line with the approach of the CA10 and CADC. The two traditional justifications for the "structural" error doctrine are not present.
First, because the Court had already held a competency hearing and permitted Defendant to waive representation (at which times the Defendant was represented), there was no "structural defect affecting the framework within which the trial proceeds." Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Instead, there was a mere "error in the . . . process" of this one hearing. Id.
Second, because the defendant had already been found competent to waive counsel initially, his lack of representation does not "necessarily render [the] criminal trial . . . unreliable." Neder v. United States, 527 U.S. 1, 9 (1999). Instead, the initial competency hearing, as well as the waiver of counsel hearing, create an situation where the error--like "trial" errors generally--may “be quantitatively assessed in the context of other evidence presented in order to determine whether [the procedure] was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307-08.
Of course, my view depends on the particular facts of this case, whereas classification of constitutional errors must necessarily be done generally. In all, an interesting circuit split and decision, but one not likely to get further review due to the fact-bound nature of the case and the split.
UPDATE: additional coverage from Split Circuits
Thursday, April 10, 2008
Splits Widened: Issues Concerning a District Court’s Failure to Set a Restitution Schedule Both During and After Imprisonment (Questions Below)
- Does a District Court’s Failure to Set a Restitution Schedule During Imprisonment Impermissibly Delegate Judicial Authority to the Executive?
- Is Failure to Set a Schedule After Release Plain Error?
Per United States v. Sawyer, 2008 WL 942653 (7th Cir. Apr. 9, 2008)
The facts underlying each of the three appeals are largely irrelevant to the legal issues presented. The three defendants were all ordered to pay restitution, and all are concededly unable to pay the full amount. They argue that 18 U.S.C. 3664(f)(2) required the district judges to set a schedule of restitution payments. In the case of one defendant, Duncan, the judge did set a schedule to take effect after his release from prison. For the other two defendants, Sawyer and Rodgers, no schedule at all was incorporated into the district courts' orders.
Duncan argues that the failure to specify a payment schedule during his time in prison impermissibly delegates a judicial task to the executive branch Bureau of Prisons. Chief Judge Easterbrook, on behalf of a unanimous panel, fails to see any delegation. The BOP’s authority over prison earnings is derived from statutory authority and not judicial delegation. “Prison earnings and other transactions concerning prison trust accounts are so completely within the Bureau of Prisons' control that it would be pointless for a judge to tell the convict how much to pay a month.” *5.
Chief Judge Easterbrook thus concludes that all repayment schedules, as a rule, should not begin until after defendants are released from prison. He recognizes, however, that the circuits are split on this issue. The CAs 2,3,6,7,9,10 all hold that the failure to set a repayment schedule for time in prison impermissibly delegates judicial power to the executive branch; only the CAs 4,5, and now 7 disagree.
With respect to defendants Sawyer and Rodgers, however, the panel holds that the failure to incorporate any repayment schedule was erroneous. The question remains, however, whether such mistake meets the plain error standard. In order to prove plain error, four elements must be met – there must be (1) an error, (2) that is clear or obvious, (3) that affects substantial rights, and (4) that would affect the fairness, integrity, or public reputation of judicial proceedings.
Chief Judge Easterbrook questions whether the failure to set a schedule at this time could affect the defendants’ substantial rights. Slow payment would not return a defendant to prison, the remedy for paying less than one is able would be the imposition of a schedule of minimum payments at the time such failure is noticed. The panel opinion continues to question how, even if the defendants’ substantial rights were affected, an order to repay what he owes could undermine the fairness, integrity, or public reputation of judicial proceedings. Indeed, setting a schedule that is too low could result in the defendant receiving a windfall – a result which would injure the fairness of judicial proceedings.
The panel therefore holds that failing to set a schedule of repayment is not plain error. The opinion again notes that the circuits are split on this issue. The CAs 2,3,4,6,10,11 all hold that this failure is plain error, while on the CA 5 and now 7 state that such failure is not necessarily plain error. The CA 1 also seems sympathetic to this view, holding that the failure to set a schedule for drug testing is not plain error. To reach its conclusion on this point, the panel had to overrule several previous Seventh Circuit precedents. This opinion was circulated to all Seventh Circuit judges, and not one called for rehearing en banc.
Friday, March 28, 2008
Split Widened: Can a District Court Modify a Conditional Writ of Habeas Corpus After It Has Become Final?
Per Harvest v. Castro, 2008 WL 795360, *6-*11 (9th Cir. Mar. 27, 2008)
Joshua Harvest was convicted of first degree murder during a state trial. The Ninth Circuit granted a conditional writ of habeas corpus, reasoning that the admission of hearsay testimony at trial violated the Confrontation Clause, and remanded to district court. The district judge gave the state sixty days to pursue one of three options – modify the conviction to second degree murder, retry Harvest, or release him.
Unfortunately, the state Attorney General, who handled the habeas litigation, did not inform the district attorney of this deadline and the sixty days expired without any action being taken. The error was discovered a month later, and the state filed a motion to amend the district court’s order because of the mistake. Harvest, on the other hand, argued that he was entitled to immediate release. The district judge amended the order, finding that the state’s error was ‘excusable.’
The Ninth reviews the ability of district courts to modify conditional writs of habeas corpus de novo. In its discussion, the panel notes that the circuits are split on the issue. The CA 6 hold that the failure to comply with the terms of a conditional release must always result in the release of the prisoner. The CAs 3,7, on the other hand, believe that the district court has broad discretion in deciding whether to employ its equitable powers to modify conditional writs even after they have become final.
The Ninth holds that the district court does have the power to modify its writs, but that the state motion to modify is governed by Federal Rule of Civil Procedure 60. Rule 60(b) permits a party to seek relief from final judgment under a limited set of circumstances, e.g. fraud, mistake, and newly discovered evidence. The attorney general’s mistake in this case, however, is not one of the type envisaged by the rule and none of the other circumstances apply either. The Ninth thus orders Harvest’s immediate release, but concludes its opinion by noting that nothing prevents the state from arresting and retrying him the moment he is released.
Additional coverage from the California Appellate Report and Decision of the Day. Like Professor Martin, I think that Judge Tashima's opinion is exactly right, especially in light of the Supreme Court's decision in Gonzalez v. Crosby, 545 U.S. 524 (2005).
Joshua Harvest was convicted of first degree murder during a state trial. The Ninth Circuit granted a conditional writ of habeas corpus, reasoning that the admission of hearsay testimony at trial violated the Confrontation Clause, and remanded to district court. The district judge gave the state sixty days to pursue one of three options – modify the conviction to second degree murder, retry Harvest, or release him.
Unfortunately, the state Attorney General, who handled the habeas litigation, did not inform the district attorney of this deadline and the sixty days expired without any action being taken. The error was discovered a month later, and the state filed a motion to amend the district court’s order because of the mistake. Harvest, on the other hand, argued that he was entitled to immediate release. The district judge amended the order, finding that the state’s error was ‘excusable.’
The Ninth reviews the ability of district courts to modify conditional writs of habeas corpus de novo. In its discussion, the panel notes that the circuits are split on the issue. The CA 6 hold that the failure to comply with the terms of a conditional release must always result in the release of the prisoner. The CAs 3,7, on the other hand, believe that the district court has broad discretion in deciding whether to employ its equitable powers to modify conditional writs even after they have become final.
The Ninth holds that the district court does have the power to modify its writs, but that the state motion to modify is governed by Federal Rule of Civil Procedure 60. Rule 60(b) permits a party to seek relief from final judgment under a limited set of circumstances, e.g. fraud, mistake, and newly discovered evidence. The attorney general’s mistake in this case, however, is not one of the type envisaged by the rule and none of the other circumstances apply either. The Ninth thus orders Harvest’s immediate release, but concludes its opinion by noting that nothing prevents the state from arresting and retrying him the moment he is released.
Additional coverage from the California Appellate Report and Decision of the Day. Like Professor Martin, I think that Judge Tashima's opinion is exactly right, especially in light of the Supreme Court's decision in Gonzalez v. Crosby, 545 U.S. 524 (2005).
Thursday, March 27, 2008
Split Noted: Must Government Agents Always Preserve Rough Interview Notes When Those Notes Are Incorporated Into a Formal Report?
Per United States v. Colón-Díaz, 2008 WL 787389, *22 n. 8 (1st Cir. Mar. 26, 2008)
Edwin Colón-Díaz was convicted of running a drug business near his small grocery store in a housing project in Puerto Rico. Part of the evidence introduced at trial was the fact that there was nothing on this “grocery store’s” shelves besides police scanners and surveillance cameras. Wanda Romero, a DEA informant, testified that she purchased crack from a dealer who said that the location was owned by Colón-Díaz. She also testified that she had been interviewed by DEA agents more than twenty times. During these interviews, the federal agents made rough notes, showed them to Romero, and she agreed with them.
The Jencks Act requires the government to turn over, upon request, any prior statement of government witnesses relating to their trial testimony. If Romero did agree with those notes, precedent suggests that she then adopted them as her own statement. The District Court found that the notes were Jencks material and asked the government to turn them over. The government informed the court that the notes had been destroyed after a formal interview report was filled out. The question is whether the Jencks Act requires the government to preserve rough interview notes subsequent to the preparation of a formal report.
The First Circuit reviews the Jencks Act violation, if any, in this case for plain error, as Colón-Díaz did not object at trial. The lack of any indication of whether the notes existed, were actually adopted, or what they contained – in addition to the other substantial evidence of Colón-Díaz’s guilt – makes the resolution of the Jencks Act question unnecessary. In the course of so holding, however, the panel notes a circuit split on this issue. Although the panel cites a case for its discussion of the split, that case actually discusses whether government agents are required to preserve rough surveillance (not interview) notes. A brief bit of my own research suggests a different split on the issue of interview notes, with the CAs 2,4,5,6,7,8,10 not requiring preservation and the CAs 3,9,DC so requiring. I do not, however, have the time to confirm this initial research today.
Additional coverage from Appellate Law & Practice.
Edwin Colón-Díaz was convicted of running a drug business near his small grocery store in a housing project in Puerto Rico. Part of the evidence introduced at trial was the fact that there was nothing on this “grocery store’s” shelves besides police scanners and surveillance cameras. Wanda Romero, a DEA informant, testified that she purchased crack from a dealer who said that the location was owned by Colón-Díaz. She also testified that she had been interviewed by DEA agents more than twenty times. During these interviews, the federal agents made rough notes, showed them to Romero, and she agreed with them.
The Jencks Act requires the government to turn over, upon request, any prior statement of government witnesses relating to their trial testimony. If Romero did agree with those notes, precedent suggests that she then adopted them as her own statement. The District Court found that the notes were Jencks material and asked the government to turn them over. The government informed the court that the notes had been destroyed after a formal interview report was filled out. The question is whether the Jencks Act requires the government to preserve rough interview notes subsequent to the preparation of a formal report.
The First Circuit reviews the Jencks Act violation, if any, in this case for plain error, as Colón-Díaz did not object at trial. The lack of any indication of whether the notes existed, were actually adopted, or what they contained – in addition to the other substantial evidence of Colón-Díaz’s guilt – makes the resolution of the Jencks Act question unnecessary. In the course of so holding, however, the panel notes a circuit split on this issue. Although the panel cites a case for its discussion of the split, that case actually discusses whether government agents are required to preserve rough surveillance (not interview) notes. A brief bit of my own research suggests a different split on the issue of interview notes, with the CAs 2,4,5,6,7,8,10 not requiring preservation and the CAs 3,9,DC so requiring. I do not, however, have the time to confirm this initial research today.
Additional coverage from Appellate Law & Practice.
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