Tuesday, May 12, 2020

COVID-19 and Jury Trials

During this time of social distancing, a subject about which there has been a lot of discussion in the criminal defense community is when to restart criminal jury trials. Courts around the country have stayed case deadlines and continued trials in the interest of keeping defendants, trial participants, and jury members safe. But the jury trial right is a fundamental one, and in some cases, justice delayed is definitely justice denied. Moreover, because the determination of when to restart trials has been left to the discretion of each jurisdiction, some communities and courts are making plans to restart jury trials even before the COVID-19 outbreak has been contained.

Here are just a few of the intractable issues that arise when trying to conduct jury trials in the midst of a global pandemic:

  • How to maintain a safe distance between lawyer and client while still ensuring the client’s constitutional right to consult with her lawyer during trial: Lawyer and client are constantly communicating during trial. Lawyer and client must discuss prospective jurors during the jury selection process, discuss witnesses, exhibits, and trial strategy. That simply cannot be done from six feet away. Even if courts provide two-way communication devices, it will be difficult to ensure the confidentiality of those discussions, and the cost of providing and sanitizing those devices may be prohibitive.

  • How to ensure that lawyers and jurors can assess witness credibility: Normally, of course, witnesses are unmasked during trial. During a pandemic and in a group setting like a jury trial, witnesses may feel more comfortable wearing masks. Allowing witnesses to wear masks will impede the ability of lawyers to examine witnesses effectively and the ability of jurors to assess witness credibility. If, on the other hand, we prohibit witnesses from wearing masks, we will need to ensure witness safety by locating the witness stand at a safe distance from other trial participants and by sanitizing the witness stand, microphone, chair, and exhibits between witnesses. This requirement alone may significantly lengthen the duration of trials and some witnesses may simply refuse to participate unless they can wear masks.

  • How to array the participants in the space: American courtrooms all share the same basic spacial elements and configuration. The plaintiff and counsel (in a criminal case, the prosecution) sit on one side of the courtroom and defendant and counsel sit on the other. Because of the constitutional requirement that trials be public, there is a gallery for spectators. There is a bench at which the judge and her staff sit, and a witness stand for testifying witnesses. And there is a jury box large enough to hold twelve citizens. It is, however, impossible to seat twelve jurors in a traditional jury box while maintaining appropriate social distancing spacing. As a result, jury trials during a pandemic will probably have to be held in alternative, larger spaces like conference venues. Attendant problems with moving trials to larger venues include a lack of appropriate equipment (document cameras, screens, audio equipment) and the cost to acquire or move that equipment to the new space. In addition, a significant concern is how jurors will be able to see and hear witnesses, lawyers, and judge when spread out in a huge room.

These are just a few of the issues to be addressed before restarting jury trials during this global pandemic. It seems to me that in most cases – particularly those cases in which the defendant is out on bond pending trial – the health risk to the participants of forcing a case to trial before we have any treatments or vaccines for COVID-19 is too high to warrant going forward. In my view, only in cases in which defendants are in custody and insist on their speedy trial rights should we even attempt to press forward with jury trials. And I say “attempt” because I am still not convinced that it can be done safely.

Tuesday, October 4, 2016

Political Punching Bags

There is a political ad currently running on television that criticizes Tim Kaine for his work as a criminal defense attorney. Entitled “America Deserves Better,” this ad states that Kaine “consistently protected the worst kinds of people” and “has a passion for defending the wrong people.” The implication of this ad is that criminal defense attorneys – particularly those who take capital cases – have defective characters because we defend criminals. This view of criminal defense lawyers as loathsome and amoral because of our defense of those accused of crimes would come as a shock to the founding fathers. The men who drafted the United States Constitution placed such great stock in the importance of criminal defense lawyers as a bulwark against prosecutorial tyranny that they enshrined in the Bill of Rights the right of every criminal defendant “to have the Assistance of Counsel for his defence.”

Moreover, the framers didn’t just talk the talk; they also walked the walk. In 1770, following the deaths of five Colonial Bostonians at the hands of British Soldiers, John Adams agreed to represent the British soldiers in the Boston Massacre Trial. The soldiers faced death and their defense was a deeply unpopular cause. The acquittal of these soldiers showed that the American colony could and would choose the rule of law over mob violence. The trial cemented Adams’s reputation, not as defective or amoral, but as a man of principle. He was an early advocate of adopting a bill of rights and he became our second president. Later, Adams remembered his representation of the British soldiers in the Boston Massacre trials as “one of the best Pieces of Service I ever rendered my Country.”

I am not sure when it became politically expedient to attack the character of criminal defense lawyers for doing a job that is so fundamentally important to the preservation of democracy that it is expressly provided for in our Constitution. Criminal defense lawyers and the other checks on prosecutorial excess set forth in the Bill of Rights are the last line of defense between citizens and a tyrannical government. While I certainly don’t mean to imply that American prosecutors are just itching to impose autocracy on America, students of history know that the preservation of democracy depends on a robust system of checks and balances. Our system of governance is founded upon the principle that power concentrated in the hands of one branch of government is dangerous. When criminal defense lawyers are vilified and marginalized and their work maligned, we risk bad things. 

There was a time in history when federal prosecutors ruled a land with impunity and when criminal defense lawyers were afraid to do their work. It was called the French Revolution, and it ended poorly.

Wednesday, September 2, 2015

Popular Misconceptions About Federal Sentencing

Today’s post addresses the huge disparity between popular misconceptions about federal sentencing and reality.  When it comes to federal sentencing, I’ve noticed two attitudinal trends that give me great concern. First, among laypeople, there is a broadly-held misconception that sentences in the federal criminal justice system are too short, too easy and that too many people are released too soon. By contrast, practitioners of federal sentencing – and in this group I include prosecutors, defense attorneys, judges, court staff and probation officers – are so used to the daily imposition of sentences that are dozens of years, if not multiple decades long, that we are completely inured to the inherent brutality of our sentencing regime.

On the topic of broadly-held popular misconceptions, let me correct some of those.  Service of a federal prison sentence is by no means some sort of country club existence.  Federal prison facilities are often older, repurposed buildings. Many are not air-conditioned and all are vastly overcrowded. Although there has been a slight decline in the federal prison population in the last year (following thirty-two continuous years of federal prison population increases), federal prisons are still operating at 40% to 50% over capacity. Although there are some federal prison camps, without fences and where inmates have some freedom of movement, placement in such facilities is generally reserved for inmates who are relatively close to their anticipated release date.  Other federal prisons look as you would imagine prisons would look – high, thick walls, metal bunks, bars, razor wire, communal bathrooms and eating facilities.  Although federal prisons are generally better run and less violent than some state prison systems, inmates are balkanized into race-based prison gangs.

As to sentence length, federal sentences are much, much longer than people generally realize.  Garden-variety federal defendants who have committed non-violent offenses can and do receive sentences of fifteen, twenty, thirty or more years in prison.  Many drug cases carry mandatory minimum sentences of ten years and if a gun was “involved,” a mandatory five year consecutive sentence is added to the ten.  Prosecutors control whether a mandatory minimum applies with their charging decisions and in a drug case, a defendant need not himself have been caught with any drugs or money to receive what is essentially a life sentence.  I once handled an appeal for a drug addict who “hung out” with his dealer and sometimes rode along with him when he made deliveries.  My client was not caught with any drugs or money and the government’s surveillance showed him present for, but not participating in drug transactions. Not understanding the broad reach of conspiracy law, he went to trial and was convicted based on the cooperating testimony of his own dealer.  The dealer received a light sentence and my client was sentenced to thirty-five years in prison. 

This example highlights several problematic characteristics of the federal justice system.  First, federal conspiracy law is very broad. A defendant need not have known every member of a conspiracy or even known what was being done by other conspirators to be convicted. It is enough to agree with one other person (and that agreement can be proven by circumstantial evidence and by inference) to commit a crime, so long as someone does some act in furtherance of that conspiracy.  In my example, my client was deemed to have joined a drug distribution conspiracy (proven by the fact that he “hung out” with his dealer) and his dealer testified to having performed lots of acts in furtherance of his own dealing.  Second, the federal criminal justice system is set up to reward the “snitch.”  If a mandatory minimum sentence applies, a judge can sentence a defendant below that mandatory minimum if the prosecutor tells the judge that the defendant has cooperated and that cooperation has resulted in the investigation and prosecution of someone else. This regime encourages – even mandates – snitching, and defendants are under enormous pressure to lie, shade the truth and implicate other people in order to reduce their own sentences.  Lastly, prosecutors seek and judges impose longer sentences upon defendants who do not cooperate but instead exercise their trial rights.  Because of this significant trial “penalty,” criminal defense lawyers sometimes find themselves counseling defendants whom they believe to be innocent to plead guilty nonetheless.  This is why approximately 93% of federal criminal cases are resolved with a plea.

Lengthy sentences are not only given in drug cases.  I have seen numerous white-collar defendants receive multi-decade sentences.  Such sentences are not limited to perpetrators of Ponzi-type schemes or scams of vulnerable victims.  Prosecutors are increasingly pursuing criminal cases against principals of investment companies (for example, in real estate and oil and gas) where market conditions have resulted in large losses to investors. In spite of the fact that investors were warned that such investments were risky, prosecutors will charge fraud based the post-facto determination that some fact was not disclosed to investors that should have been and that investors would not have invested had they known that fact.  I have seen people charged in public corruption and bribery cases receive multi-decade sentences even when the personal financial benefit the defendant received was minimal.

With regard to the notion that federal inmates are released “too soon,” parole has been abolished in the federal prison system and inmates can earn at most 54 days of good time credit per 365 days served. Thus, a federal inmate will serve at least 85% of the sentence imposed.  This is very different from many state sentencing systems wherein good time credit is granted liberally and inmates may be eligible for release on parole after serving only a third or half of the sentence imposed. 

I have argued before, and argue here again, that sentences for criminal offenses should be “proportional.”  By that I mean that the longest sentences should be reserved for those who commit the worst crimes.  When double-digit sentences are commonplace for virtually every kind of crime, even for first-time offenders, there ceases to be any meaningful way to distinguish among offenses and offenders.  Moreover, when the longest possible sentences are reserved not for the worst among us but for those who exercise their trial rights or refuse to cooperate, we send the message that our criminal justice system values efficiency over truth.

I believe that it is problematic that the general public does not understand the realities of the federal criminal justice system.  Incarceration is very expensive and it becomes more expensive as inmates age.  The lack of public awareness of the ever-increasing length of federal sentences has been exploited by politicians.  It is always a popular vote-earning strategy to support longer sentences for criminals. Politicians will point to some anecdotal story of an offender who was given a light sentence and then went on to commit a heinous crime.  However, given the legitimate public concern about the failure of the federal government to constrain spending, as a nation we should have an honest public conversation about how long sentences really need to be to deter criminality and how much incarceration we can legitimately afford. 

Friday, September 27, 2013

Child Pornography: An Argument for Proportionality in Sentencing

The topic for today is child pornography, and more particularly, the federal crimes of possession, receipt and distribution of child pornography.  These crimes – arising as they do from the victimization of children for the sexual gratification of adults – are among those that understandably incite the strongest of emotional reactions. 

Even so, it is important to differentiate between those who create child pornography and those who receive and view it or share it with others.  The creation of child pornography is essentially a violent crime in which a person sexually assaults a child and records that assault in photographs or videos.  By contrast, the crimes of possession, receipt and distribution of child pornography are not violent crimes in and of themselves.  Oftentimes, the images that are being viewed and traded were created years or even decades before.  This is not to minimize in any way the emotional trauma that victims suffer knowing that these images are in circulation.  However, few would argue against punishing the crimes that resulted in the creation of the images – the violent sexual assault of children – significantly more harshly than the viewing or trading of the images years later. 

Federal prosecutors often argue that child pornography offenses are “gateway” crimes at the beginning of a trajectory that always leads to child sexual assault.  Others contend that most of those who commit child pornography offenses have also committed unreported contact offenses against children.  The reality appears to be quite different from this alarming picture, however.  The study upon which the government often relies to argue that most child pornography offenders have previously molested children has been criticized as deeply flawed.  In that study conducted by the federal Bureau of Prisons, inmates participating in a sexual offender program were asked to self-report prior contact offenses, but were threatened with removal from the program and return to the general prison population if they failed to “truthfully” self-report.  Independent researchers have criticized this coercive methodology as tending to lead to over-reporting of prior contact offenses by program participants.  Moreover, studies of recidivism among child pornography offenders suggest a contact sexual re-offense rate of approximately thirteen percent over a four or five year period.

The increase in child pornography prosecutions in the federal criminal justice system over the past decade has been quite extraordinary.  In my view, the growth rate is attributable to several interrelated factors.  First, child pornography is more accessible now than ever before due to its availability on the Internet.  When pornography was only available in physical form – on paper or VHS tapes for example – only those with a real predilection for sexually explicit materials involving children went to the trouble to acquire it.  It has been my experience in handling child pornography cases in the Internet age that most of my child porn clients do not have a clear preference for child pornography.  Rather, they enjoy pornography generally and child pornography is only one of any number of categories of pornography that they will view, collect or share. 

Something that was surprising to me when I began handling these cases is how easy child pornography is to find online.  Indeed, the ease of acquisition of child pornography, and the fact that it is often found alongside other types of perfectly legal pornography, often lulls users either into believing that what they are viewing is legal or that the consequences of viewing it are less severe than they really are.  As a result and as psychologists recognize, there is a significant cohort of people who look at child pornography who would more appropriately be characterized as pornography addicts than as pedophiles. 

The availability of child pornography online and the concomitant increase in those who now have access to it is only one part of the explanation of why child pornography prosecutions have increased so dramatically.  A second factor is how easy they are to prosecute.  Although federal prosecutors have an ethical obligation to “do justice,” they are still evaluated based upon their “productivity,” which really means the numbers of indictments and lengthy sentences they obtain.  Child pornography offenses are easy to prosecute because the data trail is so simple to follow.  Federal agents can identify the IP addresses of those who access child pornography and then use their subpoena power to find the owners of those IP addresses.  Forensic analysis of a computer associated with an IP address that confirms the presence of child pornography makes the case easy for the prosecutor.  Because child pornography offenses are so emotionally fraught, prosecutors have little incentive to exercise their prosecutorial discretion in any way that benefits a child porn offender.

As is often the case, politics also play a role.  Candidates for national political office have long known that advocating for longer sentences generally – and for child pornography sentences specifically – is a vote-getter.  At the federal level, there is little concern for the cost of ever-increasing criminal sentences; the same is not true at the state level where balanced-budget amendments come into play.  Because of these political pressures, sentences for child pornography increasingly have been ratcheted upward such that now most federal child pornography offenders are subject to sentencing ranges that reach or exceed twenty years of imprisonment.  Parole has been abolished in the federal system, so a federal offender can expect to serve about 85% of his sentence after receiving credit for good behavior.  Because violent crimes are usually still prosecuted by the states, however, where sentences are generally lower and parole still exists, it would not be unusual for someone who had committed a contact offense against a child to serve a state sentence that was lower than that imposed for a federal child pornography offense.  Putting it bluntly, the guy who raped a child to make the porn could easily serve less time than the guy who looked at the pictures years later.  I have actually seen this occur in some of my own cases.

Proportionality is an important factor in ensuring the fairness of our criminal justice system.  In simplest terms, proportionality means that those who do worse things should get longer sentences.  Sentencing in child pornography cases often violates this fundamental principle.  Unfortunately, lowering sentences for child pornography offenders is political suicide.  Nonetheless, I hope that Congress will look at reducing sentences in these sorts of cases as part of its review of overcriminalization that I discussed in an earlier post.  In the meantime it is incumbent upon criminal defense lawyers to continue our zealous advocacy in these cases and to point out the flaws in the system to the courts.

Monday, June 17, 2013

NSA Domestic Monitoring and the Attorney-Client Privilege

A new development in the National Security Agency monitoring scandal has very serious implications for lawyers and their clients.  CNET is reporting that the NSA has told lawmakers that it does not need court authorization to listen to domestic telephone calls or apparently to read emails or text messages.  Jerrold Nadler, D-NY has disclosed that he learned in a briefing that any NSA analyst can make the decision to listen to any domestic call.

Obviously, the monitoring of citizens' telephone calls and email and text communications raises serious privacy concerns.  However on a professional level, as a federal criminal defense attorney whose entire practice involves litigation against the U.S. government, I am deeply disturbed that an analyst working for that same government can listen to my telephone conversations with clients and read my written electronic communications without any court or even supervisory oversight.  The risk is particularly acute for attorneys like me who sometimes handle cases involving allegations of terrorism or terrorism funding.

The attorney-client privilege protects communications between a lawyer and client and is supposed to be inviolate.  The privilege has deep roots in Anglo-American jurisprudence and the concept dates back hundreds of years.  The attorney-client privilege exists to encourage clients to make full disclosure to their lawyers.  The idea is that an attorney cannot effectively represent her client in the absence of complete information.

That any analyst in a U.S. government agency can monitor attorney-client communications at will means that going forward, attorneys will be forced to take steps to limit telephone conversations and electronic communications with their clients.  Attorney-client communications will need to take place in person and exchanges of data between attorneys and clients will need to be made by hand.  In this electronic age, this places an undue burden on attorneys and their clients.  Moreover, now that the NSA's monitoring program has been made public, I am concerned that the government may in some cases argue that the fact that attorneys and their clients engaged in electronic communications even though they knew about the existence of the monitoring program constitutes waiver of the attorney-client privilege as to those communications.

Some of these same concerns were raised in a case styled American Civil Liberties Union v. National Security Agency, et al.  In that case, journalists, attorneys and academics who had regular communications with contacts and clients overseas sued the NSA out of concern that their communications might be monitored under an NSA overseas surveillance program.  The Sixth Circuit Court of Appeals ordered the case to be dismissed on the ground that no plaintiff could prove that he had actually been monitored.  I anticipate that a similar challenge to the domestic monitoring program will soon be filed.

Sunday, June 9, 2013

Overcriminalization - A New Congressional Task Force

A recent article by George Will published in the Washington Post shines a light on probably the most serious problem facing the federal criminal justice system: overcriminalization. Congress continues to legislate new federal crimes – now numbering at least 4,500 – with no end in sight. As Will points out, the proliferation of federal crimes and passage of mandatory minimum sentencing laws have increased incarceration rates and sentence lengths in this country to extraordinary levels. All that prosecution and incarceration costs money. Moreover, the expansion of regulatory offenses and concomitant dilution of the requirement that criminal conviction requires a “guilty mind” means that it is now eminently possible to commit a federal crime by accident. The newly created House Judiciary Committee’s Over-Criminalization Task Force House is a step in the right direction.

Sunday, April 28, 2013

Do Lengthy Sentences Reflect Community Values?

Recently, while researching sentencing issues, I came across an excellent article written by a United States District Court Judge James S. Gwin and published in the Harvard Law and Policy Review. The premise of the article is that federal criminal sentences generally do not reflect community values. In short, sentences imposed by judges under the federal Sentencing Guidelines are, in most cases, far longer than “regular people” believe is appropriate.

The article begins with a discussion of the historical purposes of sentencing – retribution, rehabilitation, deterrence and incapacitation. In simple terms, we send people to prison for committing crimes to (1) punish them for what they have done; (2) “fix” them with treatment and/or education; (3) encourage them not to reoffend out of fear of more punishment; and (4) prevent them from committing crimes during the time they are locked up. At various times in our history, our criminal justice system has elevated one purpose over another, depending on politics and trends in criminal psychology.

Judge Gwin argues in his article that currently our criminal sentencing system elevates “retribution” over the other purposes – an emphasis Judge Gwin believes to be appropriate. According to Judge Gwin, if the primary purpose of sentencing is in fact retribution, i.e. punishment that is calibrated to reflect the seriousness of the crime and the criminal past of the offender, then sentences should reflect community values. Put another way, if sentences are significantly longer or shorter than the community collectively believes is appropriate for particular offenses and offenders, then the public loses faith in the legitimacy of the criminal justice system.

With that as a background, Judge Gwin describes a study conducted in his own district wherein, in twenty-two criminal cases in which juries returned guilty verdicts, each juror was asked to recommend a particular punishment in months for the convicted defendant. In each case, the juror recommendations were sealed and only opened after sentence had been imposed by the sentencing judge pursuant to the normal procedure and with due consideration given to the applicable Sentencing Guidelines range.

Remarkably, Judge Gwin’s study found that juror sentencing recommendations were significantly lower than the applicable Guidelines sentencing ranges. Overall, the median juror recommendation was only 19% of the median Guidelines range and only 36% of the bottom of the guidelines range. As an example of what that means in practical terms, for a median recommended Guidelines range of 100 months of incarceration, the sampled jurors would have recommended a sentence of only nineteen months. Judge Gwin concludes that sentences under the Sentencing Guidelines do not reflect community values regarding the appropriate punishment for most categories of crimes and offenders. He recommends that the United States Sentencing Commission sample juror attitudes regarding sentencing so as to bring the Sentencing Guidelines more in line with community values.

This article resonated strongly with me because it reflects what I have experienced – that is, that the average person is surprised at the length of federal criminal sentences. Over the years, I have found that non-lawyers are invariably shocked by the sentences that are imposed in federal cases when they learn the facts and the background of those cases. I have found that not only do most laypeople erroneously believe that federal criminal sentences are short, but most also believe that federal prisons are "country clubs."

Although, Judge Gwin’s proposal is thought-provoking, I doubt that the Sentencing Commission will follow his suggestion and sample juror attitudes. There is very little political will in this country for lowering sentences. Legislators in both parties find it much easier to garner votes with a “tough on crime” attitude than to give real consideration to reforming federal criminal sentencing. However, in today’s fiscal climate, a reduction in the length of federal criminal sentences could serve the dual salutary purposes of bringing sentences into line with community sentiment while also cutting costs.

Judge Gwin’s article can be found here:

"Juror Sentiment On Just Punishment: Do The Federal Sentencing Guidelines Reflect Community Values?"