CRIMINALJUSTICE
AMERICAN BAR ASSOCIATION
SECTION OF CRIMINAL JUSTICE
SUMMER 2016
VOLUME 31, NUMBER 2
LGBTGNCQ
C u lt u r a l
Humility
•
•
•
•
+
Pell Grants for Prisoners
Conviction Integrity Units
Yates Memo Implemented
Intimate Partner Violence Online
CHAIR’S COUNSEL
Rethinking Solitary
Confinement
BY BERNICE B. DONALD, WITH MARCUS GADSON
d
uring the 2016 CJS Spring Meeting, we focused
broadly on neuroscience as a means of improving
the criminal justice system. Ed Aro, a partner with
Arnold & Porter, shed light on the impact of solitary confinement on minors in the United States. In an effort to further
highlight this issue, I am dedicating the final Chair’s column
to a young lawyer, Marcus Gadson, to address and explain
the issue of solitary confinement in the United States.
Earlier this year, President Obama adopted the Justice Department’s recommendations to reform solitary
confinement’s use in federal prisons. (Michael D. Shear,
Obama Bans Solitary Confinement of Juveniles in Federal Prisons, N.Y. Times, Jan. 25, 2016, http://tinyurl.
com/gljhqsm.) Most importantly, federal prisons cannot hold juvenile offenders or persons charged with
low-level disciplinary infractions in solitary confinement going forward. President Obama also directed the
Bureau of Prisons to expand treatment access for mentally ill prisoners, and to increase the amount of time
prisoners in solitary confinement can spend outside
their cells. These moves invite us to engage in a conversation about how we can best balance prison safety
while promoting the mental wellbeing of prisoners.
Solitary confinement is purposefully designed to minimize inmates’ human contact; often in fact, inmates remain
alone in windowless cells 23 hours a day. (Tracy Hresko, In
the Cellars of the Hollow Men: Use of Solitary Confinement
in U.S. Prisons and Its Implications under International Laws
against Torture, 18 Pace Int’l L. Rev. 1, 5 (2006).) The
inability to see outside their cells enhances inmates’ sense of
isolation. Inmates commonly have no access to books, television, radio, or magazines. (Jacob Koffler, What 43 Years
of Solitary Confinement Does to the Mind, Time (June 9,
2015), http://tinyurl.com/nqvsczk.) Solitary confinement
cells are typically the size of a bathroom. (Bryan B. Walton,
The Eighth Amendment and Psychological Implications of
Solitary Confinement, 21 Law & Psychol. Rev. 271 (1997).)
BERNICE B. DONALD is a judge on the United
States Court of Appeals for the Sixth Circuit and
the 2015–16 Chair of the Criminal Justice Section.
MARCUS GADSON is a law clerk to Judge Donald.
Originally, prison reformers envisioned solitary confinement as an enlightened advance in penological policy.
Quakers in particular thought placing inmates in solitary
confinement would give them space to contemplate their
misdeeds and reflect on how they should change their behavior to become law-abiding members of society. (See id.)
Solitary confinement was also supposed to remove corrupting influences. One Pennsylvania prison even went so far as
to place hoods over inmates as they walked to their cells so
they would not see other convicts. (Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L.
& Pol’y 325, 340 (2006).) Initially, visitors from around the
world also saw solitary confinement as an improvement over
prior disciplinary methods, and many European countries
adopted solitary confinement in their own prison systems.
(Peter Scharff Smith, The Effects of Solitary Confinement
on Prison Inmates: A Brief History and Review of the Literature, 34 Crime & Just. 441, 457 (2006).)
Even early on though, some observers worried that solitary confinement produced negative psychological effects.
In Pennsylvania’s Cherry Hill Prison, where inmates
were completely isolated, there were reports of hallucination, dementia, and monomania in the 1830s. An 1847
study assessing the use of isolation in a variety of prisons
concluded that “it appears that the system of constant separation [solitary confinement according to the Pennsylvania
model] as established here, even when administered with the
utmost humanity, produces so many cases of insanity and
of death as to indicate most clearly, that its general tendency
is to enfeeble the body and the mind.” (Id. at 461 (alteration
in original).) The Supreme Court recognized the potential
for solitary confinement to inflict psychological trauma in
1890. The Court wrote:
A considerable number of the prisoners fell, after
even a short confinement, into a semi-fatuous
condition, from which it was next to impossible to arouse them, and others became violently
insane; others still, committed suicide; while those
who stood the ordeal better were not generally
reformed, and in most cases did not recover sufficient mental activity to be of any subsequent
service to the community.
CONT INU ED ON PA GE 33
CRIMINAL JUSTICE n Summer 2016
1
TABLE OF
CONTENTS
features
04 BUILDING AN LGBTGNCQ CULTURALLY
HUMBLE DEFENSE PRACTICE
KIMBERLY FORTE
This article discusses why and how defense practices should expand
client centered services to include concepts of sexual orientation and
gender identity and expression.
10 THE RETURN OF PELL GRANTS FOR PRISONERS?
04
10
SPEARIT
This article tracks the comeback of Pell Grants for prisoners
and describes how reformers are trying to bring higher
education back to prison.
14 CONVICTION INTEGRITY REVIEW UNITS:
24
17
OWNING THE PAST, CHANGING THE FUTURE
INGER H. CHANDLER
An overview of Conviction Integrity/Review Units, including
their history, purpose and potential impact on the criminal justice
system, with emphasis on Texas units.
17 THE “YATES ERA” IN FULL FORCE:
THE DOJ FULLY IMPLEMENTS YATES MEMO
SCOTT R. GRUBMAN AND SAMUEL M. SHAPIRO
This article explores the DOJ’s implementation of the principles set
forth in the Yates Memo, and what the government now expects in
resolving fraud investigations.
21 PRETRIAL JUSTICE DEMANDS LESS MONEY,
MORE VALUES
CHERISE FANNO BURDEEN
Bail decisions based on money undermine our core justice
values. Lawyers have a key role to play in reforming pretrial
justice systems.
14
24 THE MANDATE OF PADILLA: HOW PUBLIC DEFEND-
ERS CAN AND MUST PROVIDE EFFECTIVE ASSISTANCE
OF COUNSEL TO NONCITIZEN CLIENTS
ANGIE JUNCK, NADINE K. WETTSTEIN, AND WENDY S. WAYNE
Criminal defenders are the first and often only line of defense
that immigrants receive, making it critical that they are
adequately equipped to provide effective representation to this
vulnerable population. Informed defenders can make all the
difference in someone’s immigration case.
28 THE INTERNET & INTIMATE PARTNER VIOLENCE:
TECHNOLOGY CHANGES, ABUSE DOESN’T
KAOFENG LEE AND JANE ANDERSON
It is possible to hold offenders accountable and empower victims
when offenders misuse the internet to stalk and harass.
departments
01 CHAIR’S COUNSEL
RETHINKING SOLITARY CONFINEMENT
34 CRIMINAL JUSTICE MATTERS
C R I M I NA L J U STIC E
AMERICAN BAR ASSOCIATION
SECTION OF CRIMINAL JUSTICE
SUMMER 2016 V. 31, No. 2
EDITORIAL BOARD
CHALLENGING THE GRAND JURY PROSECUTOR’S CONFLICT OF INTEREST
CHAIR
Justin P. Murphy
36 PUBLIC DEFENSE
VICE CHAIR
Richard A. Ginkowski
AND THAT DAY, INNOCENT BLOOD WAS SAVED:
ETERNAL TALES OF ADVOCATES AND EXONEREES
38 BOOT CAMP, ESQ.
PUBLIC DEFENDER COMMUNICATION ADVICE
40 SCIENTIFIC EVIDENCE
BITE MARK TESTIMONY UNDER ATTACK
43 ETHICS
RACIAL DISCRIMINATION AND JURY SELECTION
46 MENTAL HEALTH
MY CLIENT FAILED A “MALINGERING” TEST: NOW WHAT?
47 TRIAL TACTICS
ATTORNEY-CLIENT PRIVILEGE AND COMMON INTEREST
51 CERT ALERT
SUPREME COURT CASES OF INTEREST
56SECTION NEWS
MEMBERS
Tracy F. Abastillas
J. Vincent Aprile II
Alexander Bunin
Hon. Arthur L. Burnett, Sr.
Michael D. Dean
Janet Fink
Andrew Kim
Matthew F. Redle
Paul G. Rozelle
Susan D. Rozelle
Mara V. Senn
COLUMNISTS
J. Vincent Aprile II
Geoff Burkhart
Rabiah Burks
Michael D. Dean
Eric Y. Drogin
Carol Garfiel Freeman
Paul C. Giannelli
Peter A. Joy
Kevin C. McMunigal
Stephen A. Saltzburg
Kyo Suh
CRIMINAL JUSTICE FORENSICS CONFERENCE
ABA PUBLISHING
DIRECTOR, ABA PUBLISHING
Bryan Kay
Criminal Justice (ISSN 0887-7785) is published quarterly as a service to its members by the American Bar Association
Section of Criminal Justice. Copyright © 2016 American Bar Association. Editorial, advertising, circulation, subscription offices: 321 N. Clark Street, Chicago, IL 60654-7598. Section offices: ABA, 1050 Connecticut Ave., NW, 4th Floor,
Washington, DC 20036.
Any member of the ABA may join the Section of Criminal Justice by sending annual dues of $40 to the Section ($20 of
which funds Criminal Justice magazine and is nondeductible); ABA membership is a prerequisite to Section membership.
Individuals and institutions not eligible to join the ABA may subscribe to Criminal Justice for $48 per year, $57 for subscriptions
addressed outside the United States and its posessions. Single copies are $10 plus postage and handling. For information on
subscriptions and back issues, contact the ABA Service Center at (800) 285-2221.
To write for us, contact the editor or go to http://www.americanbar.org/publications/criminal_justice_magazine_home.html. Opinions expressed in the magazine do not necessarily reflect the policies of the editorial board, the
Section, or the American Bar Association.
Periodicals postage paid at Chicago, Illinois, and at additional mailing offices. POSTMASTER: Send address
changes to Criminal Justice Member Records, American Bar Association, ABA Service Center, 321 North Clark St.,
Chicago, IL 60654-7598.
Members: Go online at www.abanet.org and click on “Membership” and “Update Your Profile.”
Advertising: Sales & Business Manager, Anne Bitting, 312/988-6115. Address advertising material to ABA Publishing Advertising Sales, 321 N. Clark Street, Chicago, IL 60654-7598.
Reprint Permission: Contact ABA Publishing Contract & Copyrights online at www.abanet.org/reprint.
EDITOR
Erin Remotigue
[email protected]
DIRECTOR, DESIGN/PRODUCTION
Nick Panos
ART DIRECTOR
Tahiti Spears
[email protected]
PRODUCTION COORDINATOR
Karrie Dowling
COVER IMAGE
iStock
• Lock these devices with a password to prevent anyone
from getting into the device.
• Log out of accounts and apps so that if someone does
gain access to the device, he or she can’t get to content in
the apps.
• Be careful about who has access to the devices and know
what apps or software is installed.
• Protect the device against malicious malware or spyware
software by running antivirus/antimalware software, and
do not open suspicious links or apps.
• Some newer devices have security and privacy settings built
into the device, so go through those settings to ensure that
the device is as secure as possible.
ONLINE HARASSMENT AND STALKING IS “REAL”
The majority of online abuse can be traced and the perpetrator
can be identified, but it requires knowledge, investigation time,
and resources. Following the digital trail in technology abuse cases
can offer law enforcement and prosecutors the ability to create
solid cases against abusers and truly hold them accountable before
they escalate and cause even more harm to a person. Even if the
Chair’s Counsel
(In re Medley, 134 U.S. 160, 168–70 (1890).)
Today, there is a growing body of research supporting the
Supreme Court’s view. Several studies have shown that inmates
housed in solitary confinement suffer from “insomnia, anxiety, panic, withdrawal, hypersensitivity, ruminations, cognitive
dysfunction, hallucinations, loss of control, aggression, rage, paranoia, hopelessness, lethargy, depression, emotional breakdowns,
self-mutilation, and suicidal impulses.” (Craig Haney & Mona
Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. &
Soc. Change 477, 530 (1997).) A particularly fascinating study
assigned 20 volunteers with no psychiatric or behavioral problems
to solitary confinement. Half of them quit the study by the end of
the second day. (Id. at 516.) If many of us would find two days of
solitary confinement unbearable, it becomes easy to understand
how long-term solitary confinement could lead to such devastating psychological damage.
Psychological and emotional trauma from solitary confinement arguably led to Kalief Browder’s suicide in 2015. (Jennifer
Gonnerman, Kalief Browder, 1993–2015, New Yorker (June 7,
2015), http://tinyurl.com/pdssn63.) Accused of stealing a backpack, Browder spent two years in solitary confinement at Rikers
Island. While incarcerated, he unsuccessfully attempted suicide several times. Even though Browder was eventually released, he was
never the same. He eventually succeeded in committing suicide. In
an interview before his death, Browder said “in my mind right now
I feel like I’m still in jail, because I’m still feeling the side effects
from what happened in there.” (Jennifer Gonnerman, Before the
Law, New Yorker (Oct. 6, 2014), http://tinyurl.com/ofw9xhd.)
CRIMINAL JUSTICE n Summer 2016 abusive behavior is not enough to warrant a prosecution
or arrest, helping survivors document and report what is
happening can be the first steps in building a case.
Harassment, threats, and stalking cannot be ignored, even
if they’re being perpetrated online or via other technology
and not in person. Harassment and stalking are no less real
because they occur via technology. According to the Stalking
Resource Center, 76 percent of intimate partner femicide
victims have been stalked by their intimate partner, and
54 percent of femicide victims reported the stalking to the
police before they were killed. (Stalking and Intimate Partner
Femicide, Stalking Resource Center, http://tinyurl.com/
hxdsyv9 (last visited May 24, 2016).) Victims needs to be
trusted when they say this is happening, educated on ways
to preserve the evidence, and taken seriously because online
abuse can mean offline safety risks.
The Safety Net Project has more resources and
information on online privacy and safety. These resources
are geared toward survivors as well as victim service
providers. Visit our blog at http://TechSafety.org/resources
to access these resources. n
CONT INU ED F ROM PA GE 0 1
At a given time, around 80,000 Americans reside in
solitary confinement. (Koffler, supra.) The overwhelming
majority will likely one day leave prison. The question we
must ask is whether the conditions of their confinement
will increase or decrease the chance that they will be able to
lead productive, healthy lives upon reentering society. None
of this is to discount the fact that prisons are often violent
environments, or that some inmates have proven themselves
so violent that holding them in solitary confinement for
a period of time may be necessary. Administrative prison
records show that in 2000, inmates nationwide received
52,307 disciplinary infractions for assaulting fellow prisoners. (Id.) So prison violence is a definite concern. I must
however note that many inmates were placed in solitary
confinement for relatively minor disciplinary infractions
instead of a pattern of violence. (See Jules Lobel, The
Linman Report and Alternatives to Prolonged Solitary Confinement, 125 Yale L.J. Forum 238, 243 (2016).)
I hope that our section will have serious discussions about
how we can reduce the toll of solitary confinement on prisoners while still maintaining prisons as secure environments
for all involved. In so doing, may we heed Bryan Stevenson’s admonition in Just Mercy that “the true measure of
our commitment to justice, the character of our society, our
commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the
privileged, and the respected among us. The true measure of
our character is how we treat the poor, the disfavored, the
accused, the incarcerated, and the condemned.” n
33
CRIMINAL JUSTICE MATTERS
Challenging the Grand
Jury Prosecutor’s Conflict
of Interest
BY J. VINCENT APRILE II
R
ecent events involving the decisions of grand
juries not to indict police officers for the fatal
shootings of suspects have raised the question
of whether local prosecutors who work daily with the
police have a conflict of interest in presenting these
cases to the grand jury. But this specific question has
masked the more universal issue of the duty of the
defense bar to investigate and, where appropriate,
challenge conflicts of interest by prosecutors who
oversee grand jury proceedings in any criminal case.
In jurisdictions that permit or require allegations
o f c r i m i n a l o ff e n s e s t o b e i nve s t i g at e d by a n d
criminal prosecutions to be initiated by grand juries,
the person overseeing those grand juries is usually
a prosecutor. National standards provide guidance
as to how a prosecutor should conduct grand jury
proceedings. A prosecutor, authorized to serve as legal
advisor to a grand jury, may provide an explanation
of the relevant law as well as an opinion regarding
the legal significance of the evidence presented,
without undermining the grand jury’s status as “an
independent legal body.” (S ta n da r d s f o r C r i m i na l
J u s t i c e : P ro s e c ut i o n F un c t i o n Standard 3-4.5(b)
(4th ed. 2015).)
But even in the context of a grand jury proceeding, a
prosecutor is ethically required to provide procedural
justice to the subject of the grand jury investigation.
“A prosecutor has the responsibility of a minister
of justice and not simply that of an advocate. This
responsibility carries with it specific obligations
to see that the defendant is accorded procedural
justice[.]” (M o d e l R u l e s o f P ro f ’ l C o n d u c t R. 3.8
J. VINCENT APRILE II retired
after 30 years as a public defender
with the Kentucky Department of
Pu b l i c A d v o ca c y a n d j o i n e d Ly nch,
C o x , G i l m a n & G o o d m a n , P. S . C . ,
i n L o u i s v i l l e , K e n t u c k y, w h e r e h e
s p e c i a l i z e s i n c r i m i n a l l a w, b o t h t r i a l
a n d a p p e a l , e m p l o y m e n t l a w, a n d l i t i g a t i o n .
He is past-chair and current member of the
editorial board of Criminal Justice magazine
a n d a re g u l a r c o l u m n i s t . H e i s t h e re c i p i e n t o f
the 2012 Louisville Bar Association’s Distinguished
S er v i c e Aw ard .
34
cmt. 1.) In this regard, a prosecutor has an obligation
to be aware of the ethical and legal rules governing
conf licts of interest and to self-evaluate in each
case the possibilities of actual or potential conflicts
infecting his or her role in the matter. For example:
[A] lawyer shall not represent a client if the
representation involves a concurrent conflict
of interest. A concurrent conflict of interest
exists if . . . there is a significant risk that the
representation of one or more clients will be
materially limited by the lawyer’s responsibilities
to . . . a third person or by a personal interest
of the lawyer.
(Id. R. 1.7(a)(2).) This ethical proscription applies
to all lawyers, including prosecutors, and provides
guidance to a prosecutor evaluating whether he or she
has a conflict of interest in presiding over a specific
grand jury proceeding.
But a prosecutor and the prosecution office need
to be aware of and comply with the restrictions
pertaining to conflicts. “The prosecutor should know
and abide by the ethical rules regarding conflicts
of interest that apply in the jurisdiction, and be
sensitive to facts that may raise conflict issues. When
a conflict requiring recusal exists and is non-waivable,
or infor med consent has not been obtained, the
prosecutor should recuse from further participation
in the matter.” (S ta n da r d s f o r C r i m i na l J u s t i c e :
P ro s e c ut i o n F un c t i o n Standard 3-1.7(a).)
Initially, it is the individual prosecutor’s obligation
to self-identify personal conflicts of interest, but the
prosecutor’s office has a comparable duty to evaluate
the individual prosecutor’s conflict of interest as well
as any conflict the office may have in a particular
case. Concomitant with this responsibility to detect
conflicts of interest, individual prosecutors and their
offices have an obligation to excuse a prosecutor
with a disqualifying conflict, as well as the office
should the conflict permeate the entire agency. “The
prosecutor should excuse himself or herself from
a ny i nve s t i g at i o n , p ro s e c u t i o n , o r o t h e r m at t e r
where personal interests of the prosecutor would
cause a fair-minded, objective observer to conclude
that the prosecutor’s neutrality, judgment, or ability
to administer the law in an objective manner may
be compromised.” (N at ’ l D i s t . A tt o rn e ys A s s ’ n ,
N at i o na l P ro s e c ut i o n S ta n da r d s Standard 1-3.3(d)
(3d ed. 2009).)
This method of self-policing prosecutorial conflicts
of interest, although both important and necessary,
is far from foolproof. Empirical data reveals the
deficiencies in such introspection.
CRIMINAL JUSTICE n Summer 2016
[W]hen a conflict of interest is present, and selfinterest and professional responsibility collide,
t h e d e c i s i o n o f t e n re s u l t s i n a n a u t o m at i c
preference for self-interest. This results in a
critical observation: while the decision-maker
will believe that the decision comes from rational
d e l i b e rat i o n wh e re a l l c o m p e t i n g c o n c e r n s
are considered and weighed, in actuality the
automatic bias toward self-interest will often
create an error in judgment that favors selfinterest, “automatically and without conscious
awareness.”
(Tigran W. Eldred, The Psychology of Conflicts of
Interest in Criminal Cases, 58 U. K a n . L. R e v . 43,
68–69 (2009) (footnotes omitted).)
This erroneous deference to self-interest over
professional responsibility can occur on the level
both of an individual prosecutor and the prosecution
office. The result is that “the decision-maker will
rationalize behavior as consistent with ethical norms,
even when in actuality the decision preferences selfinterest.” (Id. at 69.)
The above analysis is obviously applicable to a
prosecutorial conflict of interest in any stage of a
criminal proceeding. The difficulty becomes how to
apply this to prosecutorial conflicts at the grand jury
stage. Assuming that defense counsel was not involved
in the case before the indictment was returned, the
first defense step could be filing a motion requesting
the prosecution to disclose on the record any conflict
of interest questions that were considered by the
prosecutor who oversaw the grand jury proceedings
and/or the prosecution office, but were disregarded
as insufficient to disqualify the individual prosecutor
or the office. That same motion could request that
the trial prosecutor, if a different individual from the
grand jury prosecutor, disclose any conflict of interest
c o n c e r n s re g a rd i n g t h e g ra n d j u r y p re s e n t at i o n
uncovered during familiarization with the case, but
discarded as not requiring recusal.
This motion finds a parallel in the Model Code of
Judicial Conduct. “A judge should disclose on the
record information that the judge believes the parties
or their lawyers might reasonably consider relevant
to a possible motion for disqualification, even if the
judge believes there is no basis for disqualification.”
(M o d e l C o d e o f J u d i c i a l C o n d u c t R. 2.11 cmt. 5.) A
prosecutor as a minister of justice should be willing
to provide this information. The motion could also
include prompts to assist the prosecutor or the office
in recalling any possible conflicts of interest that were
considered and found wanting. These prompts could
include asking whether the grand jury prosecutor’s
past or present relationship with the alleged victim,
t h e v i c t i m ’s at t o r n e y ( i f a ny ) , t h e i nve s t i g at i n g
officers, any of the other grand jury witnesses, and/
CRIMINAL JUSTICE n Summer 2016 or the defendant raised a concern about a possible
conflict of interest. If the defense investigation of
the prosecutor who presided over the grand jury
has revealed any evidence of a possible conflict of
interest, that infor mation should be used in most
instances to support the disclosure motion.
Although this request could be made informally by
a letter to the trial prosecutor, filing this request in
a disclosure motion places the matter on the record
and calls for a response on the record. This disclosure
motion would not appear to fall under discovery rules
in most jurisdictions and does not fit the parameters
of information required to be turned over pursuant
to Brady v. Maryland, 373 U.S. 83 (1963), and its
progeny. However, the presentation to the grand jury
by a prosecutor who has a debilitating conflict of
interest, either personal or office-wide, would deprive
the grand jury proceedings of the status of a fair and
impartial proceeding in violation of the defendant’s
federal constitutional right to due process. (See, e.g.,
United States v. Schell, 775 F.2d 559, 566 (4th Cir.
1985).)
A s i d e e ff e c t o f f i l i n g t h i s d i s c l o s u re m o t i o n
could be that the prosecution will reexamine the
possible conflict of interest infecting the grand jury
proceedings, acknowledge the problem, and move
to dismiss the indictment with leave to resubmit the
case to a new grand jury with a different prosecutor
overseeing the proceedings. In most instances, the
relief for a disqualified prosecutor presiding over the
grand jury would be a dismissal of the indictment
w i t h o u t p r e j u d i c e t o t h e g ov e r n m e n t t o s e e k
reindictment. But the more egregious the conflict of
interest and its lasting impact on the integrity of the
witnesses or the evidence, the greater the likelihood
of relief in the form of a dismissal of the indictment
with prejudice.
The advantages of submitting the matter to a new
grand jury, particularly for defense counsel who did
not enter the case until after indictment, is that,
with notice of the upcoming grand jury proceedings,
defense can consider whether to take actions, in
accordance with the jurisdiction’s rules and laws, to
endeavor to furnish the grand jury with information
establishing a theory of overall innocence or lesser
culpability with regard to the charges.
Undoubtedly, some prosecutors will respond to
this disclosure motion by claiming it is nothing
more than a fishing expedition, but the truth is
t h at d e f e n s e c o u n s e l n e e d t o t a ke s u c h a c t i o n s
t o e n s u re t h at d e f e n d a n t s a re p rov i d e d f a i r n e s s
and impartiality even in grand jury proceedings.
Relying on a prosecutor or a prosecution office to
make the right choice between self-interest and ethical
and legal responsibility, as the literature shows,
i s a r i s ky bu s i n e s s d u e t o t h e r at i o n a l i z at i o n s
regardinconflicts of interests all lawyers apparently
experience. n
35
PUBLIC DEFENSE
And That Day, Innocent
Blood Was Saved: Eternal
Tales of Advocates and
Exonerees
BY GEOFF BURKHART
T
he blood of innocence, with ceaseless cries / Shall
cleave the womb of earth, and reach the skies.
—George Frideric Handel, Susanna, Act 3, Scene 1
(1749)
SUSANNA
Susanna was a young married woman bathing in her garden
on a hot day. Hidden in the garden were two old men, who
lusted after Susanna and accosted her. “Give in to our
desire, and lie with us,” they said. “If you refuse, we will
testify against you that a young man was here with you.”
Susanna refused. She was tried for adultery and sentenced
to death. The men’s testimony was the only evidence against
her.
As Susanna was led to her execution, a young boy named
Daniel cried, “I am innocent of this woman’s blood.” When
the crowd demanded an explanation, he replied, “Are you
such fools, you Israelites, to condemn a daughter of Israel
without investigation and without clear evidence? Return
to the court, for they have testified falsely against her.”
Daniel separated the men and exposed their lies with
a single question: “Tell me under what tree you saw them
together.” “Pistachio,” said the first man. “Oak,” said the
second. The men were convicted of bearing false witness
and put to death. Susanna was exonerated. “Thus,” the
Bible declares, “was innocent blood spared that day.”
EXONERATION
A record 149 persons were exonerated in the United States
last year. (Nat’l Registry of Exonerations, Exonerations
in 2015, at 1 (2016).)
TEUTBERGA
Teutberga was the young queen of Lorraine. She bore no
children, and her husband, Lothair, feared their kingdom
would fall. But Lothair’s mistress, Waldrada, had a son,
GEOFF BURKHART is an attorney and
project director for the American Bar
Association’s Standing Committee on
Legal Aid and Indigent Defendants.
36
Hugo. Lothair plotted to annul his marriage to Teutberga
so that he might marry Waldrada and make Hugo his heir.
So it was that Lothair claimed Teutberga had engaged in
incest with her brother. Tortured by bishops, she falsely
confessed and was imprisoned.
Teutberga appealed to Pope Nicholas the Great. Upon
deposing the bishops, the Pope learned that her confession
was false. He declared Teutberga innocent, voided Lothair’s
marriage to Waldrada, and restored his marriage to
Teutberga. Furious with the Pope’s decision, Lothair
ordered his armies to attack Rome. But Pope Nicholas
stood firm.
Lothair died without an heir, and Lorraine disappeared
from the map. Before his death, Lothair commissioned a
crystal, perhaps an apology to Teutberga. In eight scenes,
it depicts the story of Susanna. In the final scene, a king
declares Susanna’s innocence. Etched alongside are the
words Et salvatus est sanguis innoxus in die illa—“And that
day, innocent blood was saved.”
FALSE CONFESSION
Of 149 exonerations last year, a record 27 convictions rested
on false confessions. (Nat’l Registry of Exonerations,
supra, at 1.)
DEBRA
Debra was a single mother of four-year-old Christopher.
One day, Debra let her roommate, James Styers, take
Christopher to the mall to see Santa Claus. James called
Debra hours later—he had lost Christopher, and he and his
friend, Roger Scott, were searching for him. Roger later told
Detective Armando Saldate that Christopher was dead. He
led Armando to the desert, where they found Christopher’s
body with three gunshot wounds.
Armando interrogated Debra and claimed that she
confessed to plotting Christopher’s murder. He did not
record the interrogation. Armando’s testimony was
the primary evidence at Debra’s trial. No other witness
implicated her. Yet Debra was convicted and sentenced
to death.
For 25 years, Debra appealed her conviction. Her
appellate attorneys eventually discovered that Armando
had a history of fabricating confessions and argued that
the prosecution should have disclosed that history. The U.S.
Court of Appeals for the Ninth Circuit agreed and ordered
a new trial. A state appellate court ruled that retrial would
result in double jeopardy, and Debra’s case was dismissed.
WRONGFUL CONVICTION, RIGHTEOUS
ADVOCACY
Ancient Rome, Great Britain, and the United States each
have some version of the maxim, “It is better that 10 guilty
persons should escape than one innocent person suffer.”
(See Coffin v. United States, 156 U.S. 432, 454–59 (1895);
Alexander Volokh, n Guilty Men, 146 U. Pa. L. Rev. 173,
174 (1997).) Yet innocent persons suffer. For millennia,
false testimony, false confessions, and shoddy proceedings
CRIMINAL JUSTICE n Summer 2016
have led to innocent blood spilled. Wrongful convictions
dot our bibles, history books, and, lately, podcasts and
television series. It is a story we know, love, and despise.
At the heart of every exoneration sit two persons: the
innocent and the advocate. For Susanna, that advocate
was Daniel. For Teutberga, Pope Nicholas the Great.
For Debra, and most exonerees in the United States, it
is a defense attorney. Defense attorneys may lack the
divine backing enjoyed by prophets and popes. But in
the modern age, innocence projects have led to more and
Mandate of Padilla
example, the County Public Defender contracts with the
Immigrant Legal Resource Center (ILRC), a nonprofit
and national leader and expert in the immigration
consequences of crimes. Under this particular contract,
public defenders are required to contact the ILRC when
they have a case involving an immigrant to understand
the immigration consequences of the charges at hand and
what to do to defend their client against such charges.
Defenders are trained as to what information to provide
when submitting a request for assistance. Immigration
requests are treated the same as other experts needed in a
case and are always automatically approved. The money
to pay for the contract with ILRC is through a county
budget line item dedicated to expert fees. As long as the
expenditure does not go over a certain amount, the Public
Defender is not required to seek approval from the County
Board of Supervisors to allocate funds to immigration
advisals.
CONCLUSION
With changing demographics across the country and the
increasing interplay between immigration and criminal
laws, public defender offices must adapt to adequately
serve immigrant clients. This means acknowledging,
prioritizing, and investing in immigration expertise as
they do with other experts required to assist with other
aspects of criminal cases, such as defending against DNA
evidence or other scientific evidence, in order to ensure
effective assistance of counsel.
The first step requires that defense leaders and managers
become aware of the problem—that is, the complexities of
immigration law and the devastating consequences that
immigrants face as a result of criminal convictions. Only
with this awareness can defense offices recognize the full
extent of the need and invest in the necessary expertise to
help defense counsel meet their Padilla duties.
Once defense offices recognize the need, they often
face the additional roadblock of funding to ensure
full Padilla implementation. Public defender agencies
that are struggling with insufficient budgets may not
CRIMINAL JUSTICE n Summer 2016 more exonerations.
Yet our greatest impact is preconviction, not postTales
of daily zealous advocacy are rarely told—they lack the
drama of Susanna’s, Teutberga’s, and Debra’s stories.
But zealous advocacy has prevented countless injustices
throughout history.
Susanna was convicted without investigation or crossexamination. Teutberga without counsel. Debra without
full discovery. What difference could a just system and a
zealous defender have made in their cases? n
CONT INU ED F ROM PA GE 2 7
consider providing immigration expertise to be a priority
when dealing with low salaries and unrealistically large
caseloads. However, failing to provide immigration advice
to noncitizen clients is ineffective assistance of counsel,
comparable to failing to investigate an alibi or failing
to defend against the introduction of faulty scientific
evidence. Criminal defense attorneys have always had to
keep abreast of advances in criminal law and develop new
skills that were previously unnecessary. For example, the
proliferation of scientific evidence in criminal prosecutions,
and the defenses against such evidence, requires defense
attorneys to understand scientific principles to a depth
unfathomable 20 years ago. Yet failing to do so, when
representing a client in a prosecution based on scientific
evidence, would clearly be unacceptable. Understanding
the immigration consequences facing noncitizen clients
is no different.
Various strategies can be employed to provide attorneys
with immigration expertise required by Padilla, while
taking into consideration funding constraints. The first
strategy entails using existing staff time, by starting with
a deputy who has an interest in immigration, budgeting
time into his or her schedule to develop an expertise,
and slowly expanding the percentage of his or her time
dedicated to immigration matters. Or, consider if you
can use resources that are earmarked for other experts.
Finally, consider employing outside resources, including
county or city funding. In making a case to local funding
entities, defense offices should emphasize that providing
correct advice before plea or trial saves time, money, and
judicial resources by avoiding protracted postconviction
proceedings and reprosecutions when convictions are
overturned due to ineffective assistance of counsel.
No matter where a defense office begins, it is incumbent
upon defense attorneys to take steps to comply with
the Sixth Amendment and Padilla. Not only is this
constitutionally required, in many cases it will be the
critical difference between clients being deported or
remaining with their families and communities in the
United States. n
37
BOOT CAMP, ESQ.
Public Defender
Communication Advice
BY MICHAEL D. DEAN
P
ublic defenders are often exceptional people.
In a busy office, it is one of the toughest jobs in
the criminal justice system. Public defenders are
overworked and underpaid. They deal with intense stress
and difficult, uneducated, or mentally ill clients, and they
have limited hours of the day during which the courts and
clients have enormous expectations. Moreover, public
defenders usually have superior experience and comfort in
the courtroom due to the demands of the practice. And,
they know the judges and the prosecutors charged with
making decisions on the criminal cases they handle. Such
personal knowledge allows a public defender to “play the
person” to a degree greater than the less in-touch private
practitioner who deals with the court and the government
on a less frequent basis.
Despite all of this, public defenders are often unfairly
viewed by their clients as second-rate. This is because they
are “free” and are assumed to be “playing ball” with the
government to keep cases moving. Whether because of
clients’ negative past experience or cultural stigma, public
defenders must earn the trust and respect automatically
accorded to the private bar. Until that happens, public
defenders may expect an unfair share of personal conflict
and stress in their relationship with their clients. Although
perhaps unfair, it comes with the territory. But, it can
also be helped.
General George S. Patton is quoted to have said: “A
pint of sweat will save a gallon of blood.” This quote sums
up how a public defender may overcome the initial hurdle
of negative presumptions. The “sweat” in this case is the
willingness to go the extra mile in a way that eliminates
negative presumptions. The “blood” saved is the stress
stemming from poor attorney-client relationships caused
by these presumptions. The following are five methods
for overcoming negative presumptions and forming good
relationships with your indigent clients:
Listen and be open-minded. Most attorneys read
through the charging information and supporting
investigative report(s) prior to meeting a client. There
is nothing wrong with that; being prepared and having
MICHAEL D. DEAN is a deputy
prosecutor for the 17th Judicial Circuit,
Indiana, and a former Wayne County
(Indiana) public defender. He is also
a member of the Criminal Justice
magazine editorial board and member of
the Criminal Justice Section’s Book Board.
38
knowledge of the facts before speaking with the client is
important for a first impression. However, many of us
tend to form opinions and decide on strategies as we go
through these records. This is because as attorneys we are
problem solvers, which causes us to identify, accept, and
reject possible theories as we go along through the case
material. By the time we are finished, we have an initial
idea of how we will go about defending the case.
However, we need to be aware that this routine causes
us to unintentionally shut out client input. There has
not been an opportunity for the client to share other
information that may impact the case or to explain his
or her own personal circumstances and goals. When we
sit down with the client to explain our impressions, our
Type A personalities take over. We like to talk and do not
like being interrupted. Sometimes, when we let the client
speak, we are not so much listening as we are waiting
for our next turn to talk. Moreover, even if the client
has ridiculous beliefs about the law or information that
is unreliable or irrelevant, by not taking time to show
the client you are willing to listen, your actions are
conforming to the client’s presuppositions about a “public
defender”—that is, you have your own agenda that you
are going to push even if contrary to the best interests
of the client. That is probably not true. But like jurors,
defendants have preconceived notions about you due to
your profession. If those are not immediately corrected,
your client will fall victim to confirmation bias. You will
lose trust, and you will have to work harder to maintain
a good attorney-client relationship.
To avoid this, take time to read the materials out loud
with the client, stopping and patiently listening when the
client has something to say. Let the client see you taking
notes on his or her comments. Ask clarifying questions,
even if the client’s interjection is seemingly irrelevant.
Most of what our clients tell us does little to advance the
case. But, it’s worth taking this time and extra effort for
purposes of building a trusting relationship.
Be visible. Incarcerated defendants are often difficult
to deal with because of mental and emotional stress
caused by their incarceration and the uncertainty of the
future. These frustrations tend to build up and eventually
explode at an external source. As the only outsider directly
involved in the case, that “source” will often be the public
defender.
Consequently, the first thing you do wrong pokes a
hole in the swelling balloon of frustration. One of the
easiest for clients to spot is a public defender’s absence
from the jail. If the client has an opportunity to blame
his or her dire legal situation on the attorney’s failure to
take the time to show up and properly represent him or
her, you better believe the client will take advantage of
it. How many times have you heard a defendant claim the
outcome would have been different if his or her attorney
“did their job”?
For this reason, it is imperative that your clients see
you work. That is not to say that you should be visiting
every client every day. Your presence is noticed by all of
CRIMINAL JUSTICE n Summer 2016
your clients even when you are coming to see only one,
or a handful, at a time. Defendants usually share cells
and common areas. They discuss their cases and usually
know the other inmates with whom they share an attorney.
Even when your clients are separated—perhaps due to a
difference in security classification—news spreads around
a jail like wildfire. If you are making regular appearances
at the jail, everyone will know it. And, more importantly,
the clients whom you have not seen will know your
absence is not due to neglect of your professional duties.
A good way to bolster your reputation, and thereby
build trust and confidence in your clients, is to
occasionally show up on a day off. You do not have to
spend eight hours at the jail. Even if you only see one
or two clients, it is noticed by all that you were working
when you didn’t have to. This action buys a tremendous
amount of credibility and respect.
When you cannot see your client, or there is nothing to
discuss, drop a line. A busy public defender is familiar
with the never-ending stream of “jail mail.” Incarcerated
defendants have little to do but ponder their cases. You
are their main and perhaps only connection to the goings
on that occur in the courthouse. Many, many of these
letters can be summarized as a plea for contact so they
can feel reassured that you haven’t forgotten them, are
doing something, or have a plan. Although it is common in
felony cases for several months to pass before something
substantive occurs that merits an in-person meeting,
ignoring client letters is the worst way to handle them.
Again, in this context a pint of sweat will save you a
gallon of blood.
One way to manage written communications is to
keep a running list of incarcerated clients who have
requested a visit. The list should include the date the
client was incarcerated, and the date of the last visit.
When a request comes in, add the name to the list and,
all other factors being equal, visit clients in the order
requests were received. Naturally, there are frequently
circumstances that demand that someone move to the
front of the line (e.g., major hearing, upcoming trial,
time-sensitive information, etc.). Still, you will know you
aren’t missing somebody, and you will have a reasonable
and fair explanation for a client who accuses you of
ignoring his or her case.
At times, a visitation list will have a two-week (and
occasionally longer) backlog. To quell any prospective
angst and unrest, write a letter to any client you cannot see
within one week. This can be incredibly simple. Prepare a
“stock” letter that requires little alteration beyond merely
changing the inmate’s name. As for content, advise the
client that you have received and read his or her mail
and that the client’s name has been recorded and placed
in line for visitation; and assure the client that he or she
has not been forgotten, but that it is the thoroughness
with which you approach all cases that is causing any
perceived delay. The simple act of receiving a letter from
the attorney does wonders for managing client patience
and fostering continued respect.
Choose your battles. Indigent defendants are generally
suspicious and doubtful of public defenders. The default
belief is that public defenders place their self-interest
of settling cases quickly above the client’s interest in
achieving the best possible outcome. Consequently, a
public defender’s failure to pursue what he or she judges
to be pointless or helpless motions or strategies may be
improperly interpreted as the public defender shirking his
or her duties. True, an attorney should never file a motion
for which he or she lacks a good faith basis. However, this
does not mean an attorney is barred from filing a highly
unlikely motion, or one that would bring only nominal,
immaterial relief. Consider, for example, a suppression
issue, the merits of which are dependent on a credibility
contest between your client, a habitual thief, and an
officer with a reputation for honesty. When dealing with
a distrusting, argumentative client who demands you to
file such a motion, you should once again ask yourself
whether the pint of sweat is worth it in the long run. The
answer may be “yes.”
This is not to suggest that the public defender should
always, or even often, give in to ridiculous demands. On
the contrary, this tactic should be used only sparingly.
This is the case when: (1) the client is exceptionally
overbearing and distrusting; (2) the client is unable
or unwilling to listen to your reasoning; and (3) your
judgment tells you that taking the action will result in
a “net benefit” in the form of earned trust and reduced
stress in a case that is in for the “long haul.” Taking this
step may also reap the additional benefit of the client
yielding to your judgment on future matters. You earn
credibility and respect by showing that you are willing to
do the work and fight. Your credibility is compounded
when the outcome you predicted occurs and the client is
no longer left to just take you at your word.
As a final note, sometimes it is best to informally
advise the government and the court that such a motion
is coming. As long as you do not abuse it, the judge and
prosecutor usually appreciate the special difficulties that
come with your job. Letting them know your efforts are
to preserve the relationship may save a sharp, negative
reaction.
Do the legwork. Some of the most appreciative clients
are those who, at the end of the day, you could do little
to help—that is, if you are willing to put in the work even
when the case appears helpless. Traveling to the scene to
take pictures, knocking on doors to talk to people who
may have witnessed something but were never interviewed,
sending a third-party request for production of records
that may do nothing more than verify what is almost
certainly true—going this extra mile gets noticed.
And not just by the client. Similar to the point made
above regarding “being visible,” when you put in the
extra effort and show your client that you are willing
to work, you develop a reputation. Your clients share
information. While other inmates in the cellblock are
complaining about all of the things their attorney isn’t
doing, your clients are responding by bragging about
CONT INU ED ON PA GE 4 2
CRIMINAL JUSTICE n Summer 2016 39
SCIENTIFIC EVIDENCE
Bite Mark Testimony under
Attack
BY PAUL C. GIANNELLI
T
he National Academy of Sciences (NAS) 2009
report on forensic science included several
breathtaking passages on bite mark testimony—a
technique that had been admitted in hundreds of
criminal prosecutions, including death penalty cases:
• “ M o re re s e a rc h i s n e e d e d t o c o n f i r m t h e
fundamental basis for the science of bite mark
comparison. . . . [T]he scientific basis is insufficient
to conclude that bite mark comparisons can result
in a conclusive match.” (N at ’ l R esearch C ouncil ,
N at ’ l A c a d . o f S c i s ., S t r e n g t h e n i n g F o r e n s i c
S cience in the U nited S tates : A P ath F orward 175
(2009).)
• “Although the majority of forensic odontologists
are satisfied that bite marks can demonstrate
sufficient detail for positive identification, no
scientific studies support this assessment, and no
large population studies have been conducted.” (Id.
at 176 (footnote omitted).)
• “There is no science on the reproducibility of
the different methods of analysis that lead to
conclusions about the probability of a match.”
(Id. at 174.)
Despite the NAS report, some experts continued to
assert that a conclusive match is possible. For example,
in State v. Prade, 9 N.E.3d 1072, 1097 (Ohio Ct. App.
2014), the expert testified that “bite mark evidence is
generally accepted within the scientific community, but
its value in any specific case depends upon the subjective
interpretation of the analyst examining it.” Similarly, in
Coronado v. State, 384 S.W.3d 919, 926 (Tex. App. 2012),
the expert stated that
he does not agree with the NAS Report’s
conclusion that bite mark analysis cannot result in
a conclusive match. . . . Although he acknowledged
that skin does not always make a good impression
material, he also stated that you do not have to
PAUL C. GIANNELLI is a Distinguished
University Professor and Weatherhead
P ro f e s s o r o f L a w a t C a s e We s t e r n
Reserve University in Cleveland, Ohio,
and the coauthor of Scientific Evidence
(Lexis 5th ed. 2012). He is also a regular
columnist for Criminal Justice magazine.
40
be a “rocket scientist” to see that, in some cases,
there is a unique and distinct pattern of teeth that
can be identified.
Several recent developments—discussed below—may
finally change the legal landscape.
TEXAS FORENSIC SCIENCE COMMISSION
After a six-month investigation, the Texas Forensic
Science Commission recommended a moratorium on
the admission of bite mark testimony. Dr. Vincent Di
Maio, a former medical examiner and chairman of the
commission, said: “We concluded that bite marks should
not be admitted in criminal cases at this point . . . . We
feel it does not meet the standards of forensic science.”
(See Erik Eckholm, Texas Panel Calls for an End to
Criminal IDs via Bite Mark, N.Y. T imes , Feb. 12, 2016.)
Chris Fabricant, the director of strategic litigation
for the Innocence Project, argued the unreliability of
bite mark evidence at a commission meeting after Steven
Mark Chaney, who had spent 28 years in prison based
largely on bite identification, was exonerated via DNA
testing. The Innocence Project, under the direction of
Fabricant and Dana Delger, has been gathering data on
the invalidity of bite mark testimony for several years.
(See M. Chris Fabricant & William Tucker Carrington,
The Shifted Paradigm: Forensic Science’s Overdue
Evolution from Magic to Law, 4 V a . J. C rim . L. 1 (2016)
(“Perhaps no discredited forensic assay has benefited
more from criminal courts’ abdication of gatekeeper
responsibilities than bite mark analysis.”).)
IN RE RICHARDS
A second development involves In re Richards, 289 P.3d
860 (Cal. 2012), in which the bite mark expert recanted
his trial testimony after an autopsy photograph was
digitally altered with new computer software to eliminate
angular distortion. In a 4–3 decision, the California
Supreme Court declined to grant relief. The majority’s
opinion turned on the definition of “false evidence”
in the state postconviction statute; the majority held
that a more stringent definition of false evidence was
appropriate when a recantation was made by an expert
rather than a lay witness.
However, the legislature amended the post-conviction
statute in 2015. Section 1473(e)(1) now provides
that “false evidence” includes “opinions of experts
that have either been repudiated by the expert who
originally provided the opinion at a hearing or trial or
that have been undermined by later scientific research
or technological advances.” As a consequence, the
California Supreme Court accepted the case for review.
A diverse group of over 30 scientists, statisticians, and
law-and-science scholars and practitioners—spearheaded
by Professor Michael Saks—filed an amicus brief, which
has since been rewritten as a law review article. (See
CRIMINAL JUSTICE n Summer 2016
Amici Curiae Brief of Michael J. Saks et al. in
Support of the Petition for Writ of Habeas
Corpus by William Joseph Richards, Richards v.
Fox, No. S22651 (Cal. June 12, 2015), available
at http://tinyurl.com/gs6nclp; Michael J. Saks et
al., The Impending Death of Forensic Bitemark
Identification (forthcoming) (“[R]ecent reviews
of the field’s claims, as well as recent empirical
findings, have underscored the lack of reliability
and validity of the most fundamental claims
about the ability of forensic dentists to identify
the source of bitemarks on human skin.”).)
In May 2016, the California Supreme Court
granted Richards relief and overturned his
conviction. (In re Richards, No. S223651 (Cal.
May 26, 2016).) The court read the plain meaning
of the amended statute as identifying two
circumstances under which an expert opinion can
later be deemed false evidence: (1) if the expert
repudiates his or her trial testimony, or (2) if
the trial testimony is undermined by subsequent
scientific research or technological advances.
Finding that the expert’s testimony was both
repudiated and undermined by later technological
advances, the court concluded it was probable that
the false evidence affected the outcome of the jury
trial and vacated the verdict.
ABFO RESEARCH
The American Board of Forensic Odontology
(ABFO), which has fiercely defended bite mark
analysis, presented a study at a forensic conference
in 2015: Construct Validity Bitemark Assessments
Using the ABFO Bitemark Decision Tree. The study
involved 39 ABFO-certified bite mark experts—
with an average of 20 years’ experience. They were
asked to examine 100 bite mark photographs from
actual cases and answer three questions:
1. Is there sufficient evidence in the presented
materials to render an opinion on whether
the patterned injury is a human bite mark?
2. Is it a human bite mark, not a human bite
mark, or suggestive of a human bite mark?
3. Does the bite mark have distinct, identifiable
arches and individual tooth marks?
The results were not reassuring:
The first question . . . is the most basic
question a bite mark specialist should
answer before performing an analysis. Yet
the 39 analysts came to unanimous agreement
on just 4 of the 100 case studies. In only
20 of the 100 was there agreement of 90
percent or more on this question. By the
time the analysts finished question two
. . . there remained only 16 of 100 cases in
CRIMINAL JUSTICE n Summer 2016 which 90 percent or more of the analysts
were still in agreement. And there were
only 38 cases in which at least 75 percent
were still in agreement. . . . By the time the
analysts finished question three, they were
significantly fractionalized on nearly all the
cases. Of the initial 100, there remained just
8 case studies in which at least 90 percent of
the analysts were still in agreement.
(Radley Balko, A Bite Mark Matching Advocacy
Group Just Conducted a Study That Discredits Bite
Mark Evidence, W ash . P ost , Apr. 8, 2015.)
T h e a r t i c l e c o n t i nu e s : “ B u t eve n m o re
concerning than the results of the study itself, the
ABFO has since decided to hold off on publishing
those results until the organization can tweak the
design of the study and conduct it again, a process
that’s expected to take at least a year.” (Id.) A
do-over!
WHITE HOUSE SCIENCE ADVISOR
Dr. Jo Handelsman, associate director for
science at the White House Office of Science and
Technology Policy, found the ABFO study to be
“quite disturbing” and added:
Suggesting that bite marks [should] still be
a seriously used technology is not based
on science, on measurement, on something
that has standards, but more of a gut-level
reaction. Those are the kinds of methods that
have to be eradicated from forensic science,
and replaced with those that come directly
out of science, and have the ability to stand
up to the standards of scientific evaluation.
(See Radley Balko, A High-Ranking Obama
Official Just Called for the “Eradication” of Bite
Mark Evidence, W ash . P ost , July 22, 2015 (quoting
remarks presented at the International Symposium
o n Fo re n s i c S c i e n c e E r ro r M a n ag e m e n t —
D e t e c t i o n , M e a s u re m e n t a n d M i t i g at i o n ,
Arlington, Virginia (July 20–24, 2015), organized
by the National Institute of Standards and
Technology (NIST)).)
STARKS V. CITY OF WAUKEGAN
Starks v. City of Waukegan, 123 F. Supp. 3d 1036
(N.D. Ill. 2015), is a civil rights action brought by
a DNA-exoneree for his wrongful incarceration.
At his criminal trial, one expert testified: “My
opinion is that Mr. Starks bit [the victim] in the
shoulder.” Another stated: “It is my opinion that
41
Bennie Starks inflicted the bite on [the victim].”
Although the court denied relief on other grounds,
it made several observations: (1) “There appears to
be little, if any, scientifically valid data to support
the accuracy of bite mark comparison, and the
data that does exist is damning.” (2) “It is therefore
doubtful that ‘expert’ bite mark analysis would
pass muster under Federal Rule of Evidence 702
in a case tried in federal court.” (Id. at 1051–52.)
RESEARCH
As a result of the NAS report, Dr. Mary Bush
and her colleagues at the Laboratory for Forensic
Odontology, State University of New York at
Buffalo, have published over a dozen studies that
have undermined the conventional assumptions
underpinning bite mark evidence. For example:
• “Our results show that given our measurement
parameters, statements concerning dental
uniqueness with respect to bitemark analysis
in an open population are unsupportable.
. . . Confidence in the notion of dental
uniqueness in bitemark analysis has been
based on anecdotal knowledge, the use of
inappropriate statistics, and precedence of
admission the courtroom.” (Mary A. Bush
et al., Statistical Evidence for the Similarity
of the Human Dentition, 56 J. F orensic S ci .
118, 122 (2011).)
• “[T]here may not be a scientific basis for a
general expression of dental uniqueness when
the incisal edges of the six anterior teeth are
considered, as significant [random] match
rates were determined.” (Mary A. Bush et
al., Similarity and Match Rates of the Human
Dentition in Three Dimensions: Relevance to
Bitemark Analysis, 125 Int’l J. Legal Med. 779,
784 (2011).)
• Using an instrumented-biting machine, 23
bites were made in cadaver skin with the
same dentition. The cadavers were moved
and rephotographed in different positions.
Subsequent measurements showed differences
between all bite marks. In addition, postural
distortion was significant. (Mary A. Bush et
al., Biomechanical Factors in Human Dermal
Bitemarks in a Cadaver Model, 54 J. Forensic
Sci. 167 (2009).)
• A study involved 100 models that were compared
to bite marks made with 10 dentitions with
different alignments. Distinguishing biters from
individuals with similarly aligned dentitions
was difficult; in some cases, an incorrect biter
appeared better correlated to the bite mark.
(Raymond G. Miller et al., Uniqueness of the
Dentition as Impressed in Human Skin: A Cadaver
Model, 54 J. F orensic S ci . 909 (2009).)
42
WASHINGTON POST ARTICLES
In 2015, the Washington Post published a fourpart series on bite mark evidence. The articles were
scathing. Perhaps the most disturbing part of this
series involves the suppression of dissent:
1. Radley Balko, How the Flawed “Science” of
Bite Mark Analysis Has Sent Innocent People
to Prison, Was h . P ost , Feb. 13, 2015;
2. Radley Balko, It Literally Started with
a Witch Hunt: A History of Bite Mark
Evidence, Was h . P ost , Feb. 17, 2015;
3. Radley Balko, Attack of the Bite Mark
Matchers, Was h . P ost , Feb. 18, 2015; and
4. Radley Balko, The Path Forward on Bite
Mark Matching—and the Rearview Mirror,
Was h . P ost , Feb. 20, 2015.
CONCLUSION
Bite mark evidence is junk science. It should
be challenged at every trial in which it is offered.
The Saks brief (mentioned above) and the
Innocence Project’s research are available for such
a challenge. n
Boot Camp
CONT INU ED F ROM 3 9
your efforts. That reputation permeates throughout
the jail. Later, when a new client is booked in,
your reputation precedes you before the two of
you even meet. Instantly, the new client has a
favorable opinion of you and is more apt to defer
to your judgment. This is because it is known that
your elected course of action is not influenced by
the path of least resistance. It may appear that
you are wasting time engaging in what is likely
a shot in the dark. However, this is looking at it
completely the wrong way. You are not working
with the expectation of strengthening your case.
You are working for goodwill—goodwill that
pays dividends in the form of less stress and good
relationships. Putting in an hour doing this legwork
may save you several hours of future time that
would otherwise be spent trying to convince clients
who have a default distrust for public defenders
that your recommended actions are in their best
interest.
Much more can be said for the benefits of
good communication and work ethic. However,
applying even just these five techniques will result
in a noticeable change in your relationships with
your incarcerated clients. I guarantee it. n
CRIMINAL JUSTICE n Summer 2016
ETHICS
Racial Discrimination and
Jury Selection
BY PETER A. JOY AND
KEVIN C. McMUNIGAL
I
n an effort to eliminate a long history of racial
discrimination in jury selection, the U.S. Supreme
Court held in Batson v. Kentucky, 476 U.S. 79
(1986), that jurors cannot be excluded on the basis
of race through a prosecutor’s use of peremptory
challenges. Despite that ruling, racial discrimination
in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided
yet another case, Foster v. Chatman, No. 14-8349
(U.S. May 23, 2016) available at http://tinyurl.com/
j4yqv99, finding that prosecutors’ use of peremptory
challenges to exclude all eligible potential African
American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old
Timothy Foster, an African American man, to death
for the murder of an elderly white woman. Nearly
30 years later, the Court concluded that the prosecutors were motivated in substantial part by race
when they struck two potential jurors from the jury.
Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: “Two
PETER A. JOY is the Henry Hitchcock
Professor of Law and director
of the Criminal Justice Clinic at
Wa s h i n g t o n U n i v e r s i t y S c h o o l
of Law in St. Louis, Missouri; he
c a n b e re a c h e d a t j o y @ w u s t l . e d u .
KEVIN C. McMUNIGAL is a professor
o f l a w a t C a s e We s t e r n R e s e r v e
University School of Law in Cleveland,
Ohio; he can be reached at kcm4@
case.edu.
Both authors are regular columnists for Criminal
Justice magazine and are coauthors of Do No
Wrong: Ethics for Prosecutors and Defenders
(2009), as well as the chapter “Basic Ethics:
Criminal Practice and the Media” in Media
Coverage in Criminal Justice Cases (Andrew E.
Taslitz ed., 2013).
CRIMINAL JUSTICE n Summer 2016 peremptory strikes on the basis of race are two more
than the Constitution allows.”
The Supreme Court may have granted Foster a
new trial based on Batson, but that is unlikely to
stop racial discrimination in jury selection. Since
the Court decided Batson 40 years ago, issues of
racially motivated use of peremptory challenges
frequently arise. In that time, several cases have
reached the Court, and countless more have gone
to state and federal courts of appeals. In view of the
intractable problem presented by the use of peremptory challenges, commentators have recommended
a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive
and representative juries. In this column, we explore
the problems with Batson as a constitutional rule
as well as the legal ethics of racial discrimination
in jury selection. We also consider alternatives to
peremptory challenges, and conclude by endorsing
alternatives to the current system of peremptory
challenges as the best alternatives to curb racial discrimination in jury selection.
THE PROBLEM OF RACIAL DISCRIMINATION
IN JURY SELECTION
Racial discrimination in jury selection has long
plagued the criminal justice system in the United
States. Until the 1875 Civil Rights Act outlawed
race-based discrimination in jury service, African
American jurors were customarily, and legally,
excluded from juries. Resistance to the Civil Rights
Act was strong, and it took litigation through several
decades until courts invalidated state laws restricting jury service to whites. After the repeal of de jure
racial discrimination in jury composition, local officials achieved the same results well into the 1960s
by excluding African Americans from jury rolls or
jury panels or venires by various means. Some officials printed the names of African Americans on
different color paper before drawing names for jury
service, and some states only chose potential jurors
from names submitted by prominent citizens, all of
whom were white.
As discriminatory exclusion of African Americans from jury lists and venires came to an end,
racial discrimination in jury selection shifted to
the process of composing juries from the jury venires. After potential jurors had been excluded for
cause, prosecutors at times used peremptory strikes
to remove remaining African Americans and other
minorities from juries.
There are no comprehensive data on how often
prosecutors use peremptory strikes to remove potential jurors based on race, but every study examining
this question demonstrates that racial discrimination
in jury selection is still occurring. For example, a
2010 report on eight southern states found statistical
43
support for racial discrimination in jury selection for
the states studied. (E qual J ustice I nitiative , I lle gal R acial D iscrimination in J ury S election : A
C ontinuing L egacy 14 (2010), http://tinyurl.com/
z8er8ae.) In one study of a county in Alabama
from 2005 to 2009, prosecutors used peremptory
challenges to remove 80 percent of the qualified
African Americans from the venires in death penalty cases. Half of the resulting juries were all white,
and the remaining juries had a single African American despite the county being 27 percent African
American. (Id.) A 2003 study in Jefferson Parish,
Louisiana, found that prosecutors struck prospective
African American jurors at more than three times
the rate of white jurors, and a study of a county in
Georgia found that prosecutors used 83 percent of
their peremptory strikes against African Americans,
who comprised 34 percent of the population. (Id.)
The disparate rate of peremptory strikes against
otherwise qualified African Americans in these studies could not be explained by anything other than
exclusion based on race. Indeed, the problem is so
prevalent that in 2007 the Mississippi Supreme Court
stated that attorneys were “racially profiling jurors”
and found that “racially-motivated jury selection is
still prevalent.” (Id. at 24.) In another example of
judicial dismay over continued racial discrimination in jury selection as recently as 2012, a judge in
North Carolina found prosecutors struck qualified
African American jurors at twice the rate of non–
African Americans in capital cases. In vacating three
death sentences due to violations of Batson, that
court stated: “[R]ace, not reservations about the
death penalty, not connections to the criminal justice system, but race, drives prosecution decisions
about which citizens may participate in one of the
most important and visible aspects of democratic
government.” (North Carolina v. Golphin, Nos. 97
CRS 47314–15; 98 CRS 34832, 35044; 01 CRS 65079
(N.C. Super. Ct. Dec. 13, 2012), available at http://
tinyurl.com/jl68ntp.)
The exclusion of African Americans and other
minorities from juries not only discriminates against
these potential jurors, but it jeopardizes the fairness
of trials for minority defendants. All-white juries
convict African American defendants more often
than white defendants. Research also shows that
diverse juries deliberate longer and are more likely
to perform fact-finding more effectively by lessening
individual biases of jury members. Racial diversity
is especially important in jury determinations of the
reliability and credibility of witnesses, assessing the
accuracy of cross-racial identification, and avoiding
a rush to judgment of guilt concerning the accused.
The promise of an impartial jury requires the jury
to be representative of the community.
Racial discrimination in jury selection also
44
undermines public perceptions of fairness in the
criminal justice system. Studies show that the public
is more likely to conclude that a trial is unfair if an
all-white jury finds a defendant guilty. Discrimination in jury selection also undermines the premise
that the jury represents the whole community. A
jury of one’s peers is meaningless if a segment of
the population otherwise qualified to sit on a jury
is regularly excluded from jury service on the basis
that prospective jurors are of the same race as the
accused.
CONSTITUTIONAL LAW
The current state of the law on jury selection helps
explain why racial discrimination persists. Batson
provides that a defendant who believes that the
prosecution’s use of peremptory strikes is racially
motivated must make a prima facie case of discrimination by relying on evidence such as suspicious
questions or statements made by the prosecutor during voir dire and the pattern of peremptory strikes
against minority members of the jury venire. If the
defendant convinces the trial court that race may be
the reason for the prosecutor’s use of peremptory
challenges, the prosecutor must rebut the inference
by providing race-neutral reasons why the prosecutor excluded the minority veniremembers. The trial
judge must then decide if the prosecution’s reasons
are legitimate or a pretext for striking jurors on
the basis of race. The burden on the prosecution
is very low, however. The Court has stated that the
explanation the prosecutor gives does not have to
be “persuasive, or even plausible,” and it is enough
if there is “facial validity” to the prosecutor’s explanation. (Purkett v. Elem, 514 U.S. 765, 768 (1995).)
The Foster case is an example of the prosecution
not meeting even this very low standard of facial
validity for striking African Americans from the
jury. The prosecutor used peremptory challenges
to strike all four eligible African American jurors.
The state claimed that race was not a factor in jury
selection, and offered race-neutral reasons to explain
their exclusion. After the trial and original appeals,
the defense used Georgia’s Open Records Act to
obtain the prosecution file. The file showed that
the prosecution highlighted each African American’s name; circled the answer “Black” next to race
on the juror questionnaires; identified three of the
prospective African American jurors with the labels
as B#1, B#2, B#3; and identified one African American as the best “[i]f it comes down to having to
pick one of the black jurors.” The racial notations
in the prosecution’s file, along with contradictory
testimony, was sufficient to establish that the prosecution purposefully discriminated on the basis of
race as to two potential jurors, therefore meeting
Batson’s high burden on the defense.
CRIMINAL JUSTICE n Summer 2016
Even though Foster won a new trial, the Court’s
decision will not stop the use of race-based peremptory strikes if the Batson test remains intact. In the
years after Batson, some prosecutor manuals and
training videos have surfaced that instructed prosecutors on how to come up with possible reasons for
striking jurors. In reacting to the recurring problem
of enforcing Batson, a judge on the Illinois Court of
Appeals lamented “the charade that has become the
Batson process,” where prosecutors have “a series of
pat race-neutral reasons for exercise of peremptory
challenges,” such as “too old, too young, divorced,
. . . religion, social worker, renter, . . . single, overeducated, lack of maturity, improper demeanor,
unemployed, improper attire, juror lived alone, . . .
[and] unemployed spouse.” (People v. Randall, 671
N.E.2d 60, 65–66 (Ill. App. Ct. 1996) (footnotes
omitted).)
In his concurring opinion in Batson, Justice
Thurgood Marshall predicted that after Batson
prosecutors who wished to exclude jurors on the basis
of their race could make up race-neutral reasons:
“Any prosecutor can easily assert facially neutral
reasons for striking a juror, and trial courts are illequipped to second-guess those reasons.” (Batson,
476 U.S. at 106 (Marshall, J., concurring).) Unless
the Court creates a new test, or states reconsider the
use of peremptory challenges, racial discrimination
in jury selection is likely to continue.
ETHICS RULE
If Batson established a rule that may be easily
evaded, it is even more difficult to conclude that
a prosecutor who uses peremptory challenges to
remove prospective minority members from a jury
has violated an ethics rule. A comment to an ethics
rule states that a Batson violation does not, in itself,
constitute an ethics violation.
ABA Model Rule 8.4(d) states that it is professional
misconduct for a lawyer to “engage in conduct that
is prejudicial to the administration of justice.”
In 1998, the ABA added language to comment 3
explaining that it is a violation of Model Rule 8.4(d)
for “[a] lawyer who, in the course of representing a
client, knowingly manifests by words or conduct,
bias or prejudice based upon race, sex, religion,
national origin, disability, age, sexual orientation or
socioeconomic status.”
While the rule and this language from the
comment would appear to make a Batson violation
an ethics violation, comment 3 additionally states:
“A trial judge’s finding that peremptory challenges
were exercised on a discriminatory basis does not
alone establish a violation of this rule.” By stating
that a Batson violation, which requires a finding of
racially motivated use of peremptory challenges,
does not alone establish a violation of Model Rule
CRIMINAL JUSTICE n Summer 2016 8.4(d), the ABA has suggested that in states that have
adopted this ethics rule and comment, lawyers should
not report prosecutors violating Batson and bar
authorities should not discipline those prosecutors.
The difficulties of enforcing Batson and the
ineffectiveness of the ethics rule contribute to the
continued racial discrimination in jury selection. As
a result, the legal profession’s prohibition on discriminatory conduct in litigation continues to be
undermined by how some prosecutors use peremptory challenges. If the legal profession is committed
to eliminating racial discrimination in jury selection,
then peremptory challenges themselves have to be
reconsidered.
OUR PROPOSAL
The problem of racial discrimination in the use of
peremptory challenges has led several commentators
to call for changes in the jury selection process. Some
commentators believe that only banning peremptory
challenges will solve the problem, but we believe that
there is a better alternative more in keeping with the
tradition of permitting parties some power in shaping
the composition of the jury.
First, every jury venire must be representative of
the community. If the jury venire is not representative
of the community, it is virtually impossible for the
resulting jury to be representative. Some judges are
already requiring this, and if jurisdictions are not
already doing this, individual judges should insist
upon this.
Second, we believe that the current system of
peremptory challenges should be changed to a system
of combined peremptory strikes and peremptory
inclusions. A peremptory inclusion would enable
a party to designate a qualified veniremember to
be part of the jury and insulate that juror from a
peremptory strike. For example, if the prosecution
currently has six peremptory challenges and the
defendant or defendants jointly have 10 in a felony
case, those challenges would be split evenly into
strikes and inclusions. Under such a system, the
prosecutor would have three peremptory strikes and
three peremptory inclusions, and the defendant or
defendants jointly would have five strikes and five
inclusions. The parties would alternate between
strikes and inclusions.
Finally, whether our proposals are adopted or
not, every jurisdiction needs to do a better job of
collecting data both on the composition of the jury
venires and on the use of peremptory challenges.
States currently track the racial composition of
traffic stops, which has increased public awareness
of racial profiling. If states start tracking the racial
makeup of jury selection, it will help uncover
locations where there is racial disparity in the use
of peremptory challenges. n
45
MENTAL HEALTH
My Client Failed a
Malingering Test:
Now What?
BY ERIC Y. DROGIN
O
ur inaugural (Spring 2016) column promised
that Criminal Justice would assist you in “deciphering the roles and opinions of mental health
experts.” What better place to start than the murky and
enigmatic topic of malingering?
Instead of descending into “learned treatise” mode, let’s
keep it real by looking at how counsel might interact
with a properly trained forensic psychologist:
Counsel: Thanks for getting back to me so quickly! I’m
assuming you were able to get into the jail to see my
client . . .
Doctor: Absolutely. They couldn’t have been nicer.
Counsel: Sorry, Doctor, I think there’s some noise on
the line. It sounded like you said “they couldn’t have
been nicer.”
Doctor: No, that’s what I said.
Counsel: Every time I go there, I have to wait for like half
an hour before they even talk to me, and then I have to
show two forms of ID although I’m there about three
times a week, and then they complain about finding a
space for us, and then I don’t get to see my client for
another half an hour after that.
Doctor: That’s because they hate you.
Counsel: As a psychologist, are you picking that up from
their tone of voice, or their body language, or . . .
Doctor: No . . . I told them which attorney sent me, and
they said, “we hate her.”
Counsel: Well . . . so, how did my client do?
Doctor: The IQ testing would mean intellectual disability—that’s what we call “mental retardation” now—and
ERIC Y. DROGIN is a board-
certified forensic psychologist
and attorney serving on
t h e f a c u l t i e s o f t h e H a r v a rd
Medical School (in the Program
in Psychiatry and the Law at Beth
Israel Deaconess Medical Center) and
the Harvard Longwood Psychiatry Residency
Training Program. He is a life fellow of the
American Bar Foundation and a Criminal
Justice Section member whose ABA roles have
also included chair of the Section of Science &
Technology Law.
the personality testing would mean paranoid schizophrenia . . .
Counsel: Great! Well, I mean, not great, but . . . you
know . . . but wait, you said “would mean.”
Doctor: That’s because he also flunked Rey’s 15-Item
Test and the Miller-Forensic Assessment of Symptoms
Test (M-FAST).
Counsel: So he’s even worse? Again, I’m not necessarily
saying “great,” but . . .
Doctor: Those are what we call “measures of effort.”
They suggest he’s malingering.
Counsel: What?! He was in special ed classes since the
third grade, and he’s been to the state psychiatric hospital maybe 17 times.
Doctor: The tests are never wrong.
Counsel: Seriously?
Doctor: No, there was some noise on the line. Tests
don’t always tell the whole story.
Counsel: Well, so far I’m not enjoying this story at all.
What’s going on here?
Doctor: Just because your client failed these tests doesn’t
mean he doesn’t have a legally relevant disability.
Counsel: Either he’s faking or he isn’t . . . and if there’s
nothing wrong with him, then forget incompetency and
insanity.
Doctor: “Faking” doesn’t have to mean “no disability.”
If it does I can retire tomorrow.
Counsel: Maybe you should.
Doctor: Hear me out. If anyone caught “faking” is automatically competent, then anytime a criminal defendant
is slated for “competency restoration” all I’d have to do
is get them to lie.
Counsel: I’m with you so far . . . I think.
Doctor: I’d just walk into the jail and say “this may
sound weird, but humor me . . . tell me that your first
name is ‘Napoleon’ and that one plus one equals three.
Thanks . . . was that so hard? You’re competent, because
you’re faking. Congratulations!”
Counsel: What would that accomplish?
Doctor: Nothing, unless you subscribe to the strange
notion that anyone with mental illness who isn’t 100 percent forthcoming about it is all of a sudden “better.”
Counsel: All of a sudden I’m feeling a little better.
Doctor: You wouldn’t lie to me, would you?
Counsel: Tell me how this sort of thing happens.
Doctor: Maybe a defendant with PTSD is tired of seeing doctor after doctor after doctor and not getting any
results. The next time there’s an exam, he really sells it,
to make sure that finally someone “gets it.” Maybe a
defendant with intellectual disability intends to tell the
truth . . . but a cellmate says to her “look, this exam is
your ticket out of here; make sure you get everything
wrong and they’ll have to cut you loose.”
Counsel: Interesting theory. Do you see this sort of thing
in real life?
Doctor: All the time! Think about it . . . who’s most
likely to get caught faking? It’s the person who’s too
CONT INU ED ON PA GE 5 0
46
CRIMINAL JUSTICE n Summer 2016
TRIAL TACTICS
Attorney-Client Privilege
and Common Interest
BY STEPHEN A. SALTZBURG
I
t is common in multidefendant criminal cases for
defendants to enter into joint defense agreements
in which they are able to share otherwise privileged
information and work product without waiving the
protections afforded by attorney-client privilege and
the work product doctrine. These agreements often
arise after charges are brought, but there are situations
in which individuals and entities have a “common
interest” and wish to share information before a case
actually exists. The question is whether they can do so
without losing privilege and work product protection.
AN ILLUSTRATIVE CASE
The question arose in Schaeffler v. United States, 806
F.3d 34 (2d Cir. 2015), where the court of appeals
reviewed a district court’s ruling (22 F. Supp. 3d 319
(S.D.N.Y. 2014)) denying a motion by a taxpayer and
entities he controlled to quash an administrative IRS
summons to the taxpayer’s accountant.
The facts were not in dispute. Georg F.W. Schaeffler of Dallas, Texas, owned 80 percent of the parent
company of the Schaeffler Group (Group), an automotive and industrial parts supplier incorporated in
Germany. The Group wanted to acquire a minority interest in Continental AG, a German company.
The Group intended to make the acquisition through
a tender offer for its stock, but it had to deal with
German law, which prohibits tender offers that seek
less than all of a company’s shares. To comply with
German law, the Group could make a partial offer
only by setting an offering price estimated to result
in the acquisition of the desired number of shares.
The Group decided to do just that, and to finance its
offer the Group entered into a loan agreement with a
consortium of banks (Consortium) in order to borrow
STEPHEN A. SALTZBURG is the
Wallace and Beverley Woodbury
University Professor at the
George Washington University
Law School in Washington, D.C.
He is a past chair of the Criminal
Justice Section and a regular
columnist for Criminal Justice magazine. He
is also author of the book Trial Tactics, Third
Edition (ABA 2013), an updated and expanded
compilation of his columns.
CRIMINAL JUSTICE n Summer 2016 11 billion euros.
With the loan in place, the Group made its offer on
July 30, 2008, and the offer required an acceptance on
or before September 16, 2008. Just two days before
the deadline for acceptance, the United States’ stock
market suffered a tremendous decline after Lehman
Brothers Holding Inc. announced its bankruptcy. As
the stock market plummeted and the economic crisis
deepened, the market price of Continental AG stock
fell along with the rest of the market. The Group
almost certainly would have withdrawn its offer for
the Continental AG stock but for German law, which
prohibited the withdrawal of a tender offer. Not surprisingly, with the price of the stock falling, far more
Continental AG shareholders accepted the Group’s
offer, and in the end the Group owned approximately
89.9 percent of all Continental AG shares.
This unforeseen situation was a threat to the
Group’s ability to remain solvent and to meet its obligations to the lenders from whom it had borrowed the
money to finance the stock purchase. Accordingly, the
Group and the Consortium both saw a need to refinance the loans and also to restructure the Group.
Schaeffler’s 80 percent ownership interest in the
Group’s parent company meant that the refinancing
of the loan and the restructuring of the Group would
have tax consequences in the United States. Anticipating that the IRS would take a careful look at the
refinancing and the restructuring, the Group retained
Ernst & Young (an accounting firm) and Dentons U.S.
LLP (a law firm) to provide advice in preparation for
dealing with the IRS.
The Group was prescient as to the IRS, which
began an audit of Schaeffler and the Group. As part
of the audit, the IRS issued a summons for documents that led to the litigation over attorney-client
privilege and work product. The summons sought
all documents created by Ernst & Young relating to
the restructuring, including but not limited to legal
opinions, that were provided to parties outside the
Group—i.e., to the Consortium. The IRS did not seek
documents prepared by Dentons or documents shared
only among the Group’s lawyers and Ernst & Young.
DISTRICT COURT LITIGATION
The Group responded to the summons by producing
thousands of documents but petitioned the district
court to quash the IRS’s demand for legal opinions.
One document that the Group sought to protect was
an Ernst & Young memorandum that identified the tax
consequences in the United States of the restructuring and analyzed the relevant law, regulations, judicial
opinions, and IRS rulings. The district court denied
the petition. Its reasoning was summarized by the
court of appeals as follows:
47
In denying the petition to quash, the district
court held that appellants had waived their
attorney-client privilege by sharing the withheld documents with the Consortium. The court
noted that “[b]y all accounts, the Schaeffler
Group, Ernst & Young, and Dentons worked
closely with the Bank Consortium not only in
effectuating the refinancing and restructuring
but also in analyzing the tax consequences of
the [Continental AG] acquisition.” The court
held that the “common legal interest” or “joint
defense privilege” exception to the waiver by
third-party disclosure rule did not apply. In the
court’s view, the Consortium “lack[ed] . . . any
common legal stake in Schaeffler’s putative litigation with the IRS,” because it would not be
named as a co-defendant in the anticipated litigation and “only the Consortium’s economic
interests,” as opposed to its legal interests, “were
in jeopardy.” Therefore, appellants and the Consortium did not have a common legal interest
and were not “formulating a common legal
strategy.” Accordingly, appellants’ attorneyclient privilege had been waived.
The district court also rejected appellants’ claim
that the documents in question were protected
under the work-product doctrine. It first ruled
that work-product protection had not been
waived by the sharing of information with the
Consortium because the disclosure was “in
furtherance of Schaeffler and the Bank Consortium’s common commercial desire to avoid
Schaeffler’s default and insolvency.” It reasoned
that the common interests of appellants and the
Consortium were sufficiently strong as to not
“materially increase[] the likelihood of disclosure [of protected information] to an adversary.”
. . . .
The district court noted that the [Ernst &
Young] Tax Memo “does not specifically refer
to litigation . . . by discussing what actions peculiar to the litigation process [the parties] might
take or what settlement strategies might be considered.” The court concluded that appellants
would have engaged in the “detailed and complex process of resolving” the unusual tax issues
even if they did not anticipate any litigation.
(footnotes omitted) (citations omitted).)
THE COURT OF APPEALS
The court of appeals began its legal analysis with a
statement of the basic contours of the attorney-client
privilege and a citation to three of its prior cases setting out those contours:
The purpose of the attorney-client privilege is
to enable attorneys to give informed legal advice
to clients, which would be undermined if an
attorney had to caution a client about revealing
relevant circumstances lest the attorney later be
compelled to disclose those circumstances. The
privilege, and by extension the tax practitioner
privilege, protects communications between a
client and its attorney that are intended to be,
and in fact were, kept confidential. A party that
shares otherwise privileged communications
with an outsider is deemed to waive the privilege
by disabling itself from claiming that the communications were intended to be confidential.
Moreover, the purpose of the communications
must be solely for the obtaining or providing of
legal advice. Communications that are made for
purposes of evaluating the commercial wisdom
of various options as well as in getting or giving legal advice are not protected.
(Id. at 40 (citations omitted).)
The court then turned its attention to the concept
of waiver by disclosure and cited a key precedent on
common interest:
While the privilege is generally waived by voluntary disclosure of the communication to another
party, the privilege is not waived by disclosure
of communications to a party that is engaged in
a “common legal enterprise” with the holder of
the privilege. Under United States v. Schwimmer,
892 F.2d 237 (2d Cir. 1989), such disclosures
remain privileged “where a joint defense effort
or strategy has been decided upon and undertaken by the parties and their respective counsel
. . . in the course of an ongoing common enterprise . . . [and] multiple clients share a common
interest about a legal matter.” “The need to protect the free flow of information from client
to attorney logically exists whenever multiple
clients share a common interest about a legal
matter.”
(Schaeffler, 806 F.3d at 38–39 (alterations in original)
48
CRIMINAL JUSTICE n Summer 2016
Parties may share a “common legal interest”
even if they are not parties in ongoing litigation.
The common-interest-rule serves to “protect
the confidentiality of communications passing from one party to the attorney for another
party where a joint defense effort or strategy
has been decided upon and undertaken by
the parties and their respective counsel.” “[I]
t is therefore unnecessary that there be actual
litigation in progress for the common interest
rule of the attorney-client privilege to apply[.]”
However, “[o]nly those communications made
in the course of an ongoing common enterprise and intended to further the enterprise are
protected.”
(Schaeffler, 806 F.3d at 40 (alterations in original)
(citations omitted).)
Applying these principles to the facts, the court
held that the Consortium shared a common interest
of a sufficiently legal character to prevent a waiver
by the Group when it shared communications with
the Consortium.
The court reasoned that, although the Group and
the Consortium formed the loan agreement before the
Lehman bankruptcy and the stock market collapse,
once the Group ended up owning far more shares of
the German company than either it or the Consortium had anticipated, the Group and the Consortium
shared a common problem: The Group faced a risk
of insolvency that would cause a default on the loan,
and the solution was a refinancing and a restructuring
that was only practical if the United States tax consequences were adequately handled. The court reasoned
that the fact that the Consortium had 11 billion euros
at risk did not render the legal issues involving United
States taxes “commercial.”
The court noted that the Consortium advised the
Group on the restructuring in order to promote the
refinancing, and the Consortium needed access to
confidential tax information and analyses to assess its
own exposure for potential tax liabilities of Schaeffler.
The court found that the Group and the Consortium
were pursuing a common legal strategy to maximize
the interests of both.
CRIMINAL CASES
The court’s analysis should be the same whether it
is the IRS or a grand jury seeking documents. The
court noted that “[i]t is true that cases involving criminal prosecutions usually describe the definition of a
common defense strategy according to the contours
of a particular charging instrument,” and added that
“[i]n the context of civil proceedings, however, these
cases emphasized the need of the parties to identify
a common legal interest or strategy in obtaining a
CRIMINAL JUSTICE n Summer 2016 particular legal goal whether or not litigation is ongoing.” (Id. at 42.)
The court’s observation is accurate but misleading.
The distinction between criminal and civil proceedings
is not controlling. If the attorney-client privilege is
not waived when documents are shared among those
with a common interest, the absence of waiver should
be the same in both civil and criminal cases. This is
clear from the fact that the IRS can pursue civil and
criminal cases and need not forgo a criminal investigation simply because it begins an investigation as
a civil inquiry.
The court of appeals noted that the district court
had ruled that the work product immunity was not
waived by the Group’s sharing the Ernst & Young
documents with the Consortium. The court of appeals
stated that “[t]he doctrine ‘is intended to preserve a
zone of privacy in which a lawyer can prepare and
develop legal theories and strategy with an eye toward
litigation, free from unnecessary intrusion by his
adversaries.’ United States v. Adlman, 134 F.3d 1194,
1196 (2d Cir. 1998).” (Schaeffler, 806 F.3d at 43.) The
court observed that Adlman offered examples of what
is protected by the doctrine and what is not. At one
end of the spectrum, a document will be protected if,
“in light of the nature of the document and the factual situation in the particular case, the document
can fairly be said to have been prepared or obtained
because of the prospect of litigation”; and at the other
end, protection will be withheld from “documents that
are prepared in the ordinary course of business or that
would have been created in essentially similar form
irrespective of the litigation.” (Schaeffler, 806 F.3d at
43 (quoting Adlman, 134 F.3d at 1202).)
The court concluded that the district court’s
approach would virtually eliminate the end of the
spectrum that protects work product and concluded
that Adlman established that “work-product protection would be withheld only from documents that were
prepared in the ordinary course of business in a form
that would not vary regardless of whether litigation
was expected.” (Schaeffler, 806 F.3d at 43–44.) Applying the analysis to the Group, the court concluded that
the Group would not have sought the detailed legal
analysis of tax issues but for the prospect of litigation.
Thus, the Group also had work product protection
for the legal opinions and analyses.
LESSONS
Lawyers must be aware, particularly in advising on
complex transactions, of the limits on sharing information and must carefully consider whether sharing
will waive attorney-client privilege and work product protection.
To maximize the chances of winning an attorney-client privilege claim, a record should be made
describing the common interest that is shared by
49
different individuals and groups like the Group and
the Consortium. In a footnote, the court of appeals
offered a description of how the Group and the Consortium made such a record:
When the Schaeffler Group and the Consortium
agreed to share legal analyses, they signed an
agreement, styled the “Attorney Client Privilege
Agreement.” Of course, the title of that agreement was not binding on the district court and
is not binding on us. The Agreement is relevant,
however, to the issues of whether the Schaeffler
Group and the Consortium maintained confidentiality with regard to third parties and were
pursuing a common legal interest.
(Id. at 38 n.2.)
It is also good practice for a party to make a record
as to why it is concerned about future litigation. This
was clear as to the Group, and it was very persuasive
to the court of appeals.
The party that is most concerned about protecting its privilege and work product claims should also
consider including in an agreement with a third party
restrictions as to whom the third party can share privileged or work product documents, to ensure that the
privilege and work product protections are not lost
because of a failure to control distribution of the
contents of the documents. The court of appeals in
Schaeffler observed that, there being “no evidence
indicating disclosure of some or all of the documents
beyond the Consortium, we need only determine the
effect of disclosure to the Consortium.” (Id. at 40.)
Had the Consortium disclosed the documents to third
parties, the court would have had to consider the effect
of such disclosure. Moreover, the IRS might have been
able to issue summons to the third parties if they were
within the jurisdiction of the United States. n
Mental Health
CONT INU ED F ROM PAGE 4 6
psychotic or dimwitted to do it convincingly.
Counsel: Do you think that’s what happened in
this case?
Doctor: Maybe. I can tell you this much: I read the
school records you sent me, and if your client’s faking,
then he’s not just normal—he’s a child genius who’s been
putting up numbers in the same narrow low-IQ range
since he was five years old, in order to plan the perfect
crime . . . in this case, walking out of a store without
paying for a candy bar. Doesn’t really fit, does it?
Counsel: No.
Doctor: Also, interviews with your client and his family are ringing true . . . and the jailer may hate you, but
even he has a soft spot for your client. When I was leaving he said, “See if you can do something for this guy
. . . he doesn’t belong here, and it’s costing us a fortune.”
Counsel: This is terrific stuff. I think I understand your
reasoning about the tests, but I’d just as soon not have to
sell it to the prosecutor, the judge, and the jury. Can’t you
just write up your report and leave out the “testing” part?
Doctor: No, I really can’t. Even if it weren’t unethical
to engage in selective reporting, I’m a psychologist—
testing is what we do. Any half-bright prosecutor . . .
Counsel: So you’ve met him?
Doctor: . . . any half-bright prosecutor would have to
ask, “Why didn’t you do any testing?” The answer would
have to be “I did” . . . and you wouldn’t like my answer
about why I left it out of the report.
Counsel: How do I fix this?
50
Doctor: I know how hard you had to fight for the funds
to hire me, so I know you won’t be able to get another
psychologist—especially with a trial in three weeks.
Check with your colleagues, but my advice would be this:
go talk with your client, let him tell you why this happened, and then let him know everyone makes mistakes.
Then I’ll go test him again—using different malingering
tests—and see if he’s changed his tune.
Counsel: That’s not an ideal solution, but it’s better than
leaving things the way they are.
Doctor: In fact, your arguments about mental health
become more credible because your so-called expert
flagged a problem with your client’s cooperation, didn’t
just roll with whatever your client said, and was willing
to go back to get truly valid information.
Counsel: Okay, let’s do this.
Our readers were also promised a “balanced
approach,” so here goes. Prosecutors, beware the defense
report that doesn’t refer to testing for malingering. It’s
a problem if such testing wasn’t done. It’s an even bigger problem if a defendant’s initial lack of cooperation
was never acknowledged. Yes, defense counsel can score
some points by sending the expert back to get it right,
but who could blame you for asking, “Was the defendant
lying then, or is the defendant lying now?”
Please feel encouraged to contact Dr. Drogin
at [email protected] with any questions
about malingering tests, or with any suggestions for
future topics. n
CRIMINAL JUSTICE n Summer 2016
CERT ALERT
Supreme Court Cases of
Interest
BY CAROL GARFIEL FREEMAN
F
or persons interested in the Supreme Court, Justice
Scalia’s death on February 13 was the most significant
event between the end of January and the middle of
April 2016. Despite speculation that an eight justice court
would be hampered in resolving cases, the Court issued
opinions in seven criminal justice cases in March and April,
discussed in detail below, and in ten additional criminal
justice cases between April 18 and June 6, leaving only a
few criminal cases to be decided by the end of the term.
Moreover, although a few of these decisions prompted
concurring opinions, there were dissents in only six of the
seventeen cases decided after Justice Scalia’s death. The
ten cases decided between April 18 and June 6 are briefly
described below and will be discussed in greater detail in
the Fall issue, as will cases that remain undecided on June
6, and a few other cases in which one or more justices wrote
respecting the denial of cert. This issue also includes the
text of the cert petitions in two capital cases in which cert
was granted on June 6.
After the January 25–February 29 recess, certs were
granted and the decisions remanded in several cases from
different jurisdictions following the January 25 decision
in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that
juveniles sentenced to mandatory life imprisonment
without parole can challenge their sentences on habeas.
Justices Thomas and Alito filed concurring opinions
in each case, pointing out various issues that could be
considered by the lower courts after remand. (See Tyler v.
Louisiana, 136 S. Ct. 1356 (Mar. 7, 2016) (No. 14-1068);
Lewis v. Michigan, 136 S. Ct. 1357 (Mar. 7, 2016) (No.
14-1196); Jones v. Virginia, 136 S. Ct. 1358 (Mar. 7, 2016)
(No. 14-1248).)
Justice Alito dissented from the denial of cert in BenLevi v. Brown, 136 S. Ct. 930 (Feb. 29, 2016) (No. 14-10186).
CAROL GARFIEL FREEMAN
has been a staff lawyer with the
U.S. District Court for the District
of Columbia, a deputy district
public defender in Maryland, and
an assistant U.S. attorney for the
District of Columbia. She is a contributing editor
to Criminal Justice magazine and has been a
Section vice-chair for publications, chair of
the Book Board, and chair and member of the
editorial board of the magazine.
CRIMINAL JUSTICE n Summer 2016 Ben-Levi, a Jewish prisoner in a North Carolina prison,
sought permission to pray and study the Torah with
other Jewish prisoners. The institution consulted a rabbi,
who advised that under the Jewish religion, Torah study
required either 10 participants (a minyan) or a rabbi.
Because there were only two other Jewish prisoners and
no rabbi or outside leader could be found, Ben-Levi’s
request was denied. His pro se petition challenging this was
dismissed on summary judgment. Justice Alito concluded
that the burden placed on Jewish prisoners, requiring
either 10 participants or a rabbi, is different from that
placed on prisoners of other religions and not justified
by legitimate penological interests. The policy deprived
Ben-Levi of the opportunity to study with other Jewish
prisoners and thus burdened his ability to exercise his
religion. The government’s argument that Ben-Levi did
not understand his own religion (requiring a minyan or a
rabbi for Torah study) was, Justice Alito wrote, “foreclosed
by our precedents.”
Arguments scheduled from the end of March through
April are listed below. All decisions and other information
about the cases are available on the Court’s website, www.
supremecourt.gov.
CERT GRANTED
Note: Questions presented are quoted as drafted by the
parties, or, in some instances, by the Court.
CAPITAL CASES
Buck v. Stephens, No. 15-8049, cert granted, June 6, 2016,
decision below at 623 Fed. Appx. 668 (5th Cir. 2015), reh’g
denied, Nov. 6, 2015.
Duane Buck’s death penalty case raises a pressing
issue of national importance: whether and to what
extent the criminal justice system tolerates racial bias and
discrimination. Specifically, did the United States Court
of Appeals for the Fifth Circuit impose an improper
and unduly burdensome Certificate of Appealability
(COA) standard that contravenes this Court’s precedent
and deepens two circuit splits when it denied Mr. Buck a
COA on his motion to reopen the judgment and obtain
merits review of his claim that his trial counsel was
constitutionally ineffective for knowingly presenting an
“expert” who testified that Mr. Buck was more likely to be
dangerous in the future because he is Black, where future
dangerousness was both a prerequisite for a death sentence
and the central issue at sentencing?
Moore v. Texas, No. 15-797, cert. granted limited to
question 1 presented by the petition, June 6, 2016, decision
below at 470 S.W.3d 481 (Tex. Ct. Crim. App. 2015).
1. Whether it violates the Eighth Amendment and this
Court’s decisions in Hall v. Florida, 134 S. Ct. 1986
(2014) and Atkins v. Virginia, 536 U.S. 304 (2002)
to prohibit the use of current medical standards
on intellectual disability, and require the use of
outdated medical standards, in determining whether
an individual may be executed.
51
FIFTH AMENDMENT
Bravo-Fernandez v. United States, No. 15-537, cert granted
limited to question 1 presented by the petition, Mar. 28, 2016,
decision below at 790 F.3d 41 (1st Cir. 2015), reh’g denied,
July 27, 2015.
In Ashe v. Swenson, 397 U.S. 436 (1970), this Court
held that the collateral estoppel aspect of the Double
Jeopardy Clause bars a prosecution that depends on a fact
necessarily decided in the defendant’s favor by an earlier
acquittal. Here, a jury acquitted petitioners of conspiring
and traveling to violate 18 U.S.C. § 666, but convicted
petitioners of violating § 666. The convictions were vacated
on appeal because they rested on incorrect jury instructions,
and it is undisputed that the acquittals depended on the
jury’s finding that petitioners did not violate § 666. The
government nonetheless sought to retry petitioners on the
§ 666 charges.
Widening an acknowledged split, the First Circuit held
that the acquittals have no preclusive effect under Ashe
because they were inconsistent with the vacated, unlawful
convictions. The First Circuit distinguished Yeager v. United
States, 557 U.S. 110 (2009), which held that an acquittal
retains its preclusive effect even when it is inconsistent with
a hung count, on the theory that juries “speak” through
vacated convictions, but not through hung counts. The
questions presented are:
1. Whether, under Ashe and Yeager, a vacated,
unconstitutional conviction can cancel out the
preclusive effect of an acquittal under the collateral
estoppel prong of the Double Jeopardy Clause.
SIXTH AMENDMENT
Pena-Rodriguez v. Colorado, No. 15-606, cert granted,
Apr. 4, 2016, decision below at 350 P.3d 287 (Colo. 2015),
reh’g denied, June 15, 2015.
Most states and the federal government have a rule of
evidence generally prohibiting the introduction of juror
testimony regarding statements made during deliberations
when offered to challenge the jury’s verdict. Known
colloquially as “no impeachment” rules, they are typically
codified as Rule 606(b); in some states, they are a matter
of common law.
The question presented is whether a no-impeachment
rule constitutionally may bar evidence of racial bias offered
to prove a violation of the Sixth Amendment right to an
impartial jury.
DECIDED CASES
CAPITAL CASE—FIFTH AMENDMENT
Wearry v. Cain, 136 S. Ct. 1002 (Mar. 7, 2016) (No.
14-10008) (per curiam). On direct appeal from a state
postconviction decision, the Court, per curiam, held that
the state’s failure to disclose exculpatory evidence (Brady
v. Maryland, 373 U.S. 83 (1963)) required reversal of this
capital case. The primary evidence against Wearry came
from two witnesses, Scott and Brown, each of whom
52
had given conflicting statements; there was additional
circumstantial evidence inculpating Wearry. The defense
was alibi, presented by the testimony of Wearry’s girlfriend,
her sister, and her aunt that he had been at a wedding on
the night of the murder. The undisclosed evidence included
statements by two jail inmates that cast doubt on Scott’s
credibility, evidence that Brown twice had sought a deal
to reduce his sentence (contrary to his testimony and the
prosecutor’s statement in closing), and medical records that
a person Scott had seen running and jumping into the cargo
space of a car had undergone serious knee surgery nine
days before the event. (There was testimony that he had
undergone knee surgery but not how serious it was.) The
majority opinions and the dissent discuss the significance of
each of these pieces of information. The majority based its
decision on its conclusion that under Brady and its progeny,
Wearry did not have to show that the undisclosed evidence
would “more likely than not” have resulted in acquittal,
but “only that the new evidence is sufficient to ‘undermine
confidence’ in the verdict.” (Smith v. Cain, 132 S. Ct. 627,
629–31 (2012); see also United States v. Agurs, 427 U.S. 97,
113 (1976); Giglio v. United States, 405 U.S. 150 (1972);
Napue v. Illinois, 360 U.S. 264, 271 (1959).) The majority
noted that the state’s opposition to the petition for cert had
rebutted each claim in the petition, and thus concluded
that it was appropriate to grant cert and reverse without
calling for full briefing and argument. Although there
was evidence that defense counsel had failed to undertake
a serious independent investigation, which might have
developed independent witnesses to Wearry’s presence at
the wedding, the Court declined to reach the ineffective
assistance of counsel claim. Justice Alito, joined by Justice
Thomas, dissented, taking issue with some of the inferences
the majority drew from the statements in the record but
primarily objecting that the case should have been briefed
and argued before decision.
CRIMES AND OFFENSES
Lockhart v. United States, 136 S. Ct. 958 (Mar. 1, 2016)
(No. 14-8358). This case produced opinions demonstrating
different methods of statutory interpretation. Lockhart
pleaded guilty to possessing child pornography in violation
of 18 U.S.C. § 2252(a). His sentence included an additional
10-year mandatory minimum sentence enhancement
pursuant to § 2252(b), because of a prior state conviction
of sexual abuse involving his adult girlfriend. Section
2252(b) applies to state convictions for crimes “relating
to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward.” The Court
rejected Lockhart’s argument that the phrase “involving a
minor or ward” should apply not only to “abusive sexual
conduct” but also to “aggravated sexual abuse” and “sexual
abuse.” In so ruling, the majority noted that where there
is a list followed by a limiting clause, it typically applies
the clause only to “the last antecedent.” Moreover, the
recidivist provision of § 2252(b) applies also to federal
crimes listed in chapter 109A of the criminal code, which
CRIMINAL JUSTICE n Summer 2016
has three separate sections defined in similar language:
aggravated sexual abuse (18 U.S.C. § 2241), sexual abuse
(18 U.S.C. § 2242), and sexual abuse of a minor or
ward (18 U.S.C. § 2243). Lockhart’s other arguments
were rejected. Opinion by Justice Sotomayor, in
which Chief Justice Roberts and Justices Kennedy,
Thomas, Ginsburg, and Alito joined. Justice Kagan
filed a dissenting opinion, in which Justice Breyer
joined. The dissenters disagreed with the majority’s
application of the “rule of the last antecedent,” among
other arguments analogizing the phrase to one such as
“an actor, director, or producer involved with the new
Star Wars,” in which the phrase “involved with the new
Star Wars” clearly applies to “actor,” “director,” and
“producer,” not simply to “producer.” They contended
that legislative history supports their interpretation of
the statute.
Nichols v. United States, 136 S. Ct. 1113 (Apr. 4,
2016) (No. 15-5238). An opinion by Justice Alito for
a unanimous Court held that a registered sex offender
who moves from a state to a foreign country does not
have to notify the state he is leaving or of his change
of address. Under the Sex Offender Registration and
Notification Act (SORNA), 18 U.S.C. § 2250(a)(3),
42 U.S.C. § 16913(a), a registered sex offender who
moves to a different state must inform, in person, “at
least 1 jurisdiction involved” of his or her change of
status. The jurisdictions involved are those “where
the offender resides, . . . is an employee, and . . . is a
student.” Nichols was a registered sex offender living
in Kansas. He moved to the Philippines and failed to
report to mandatory sex offender treatment in Kansas.
He was tracked to the Philippines, arrested, returned
to the United States, and prosecuted for violating
SORNA. The Court of Appeals for the Tenth Circuit
affirmed his conviction, in conflict with a decision of
the Eighth Circuit that had reversed the conviction of
a similar offender who also had moved from Kansas
City, Missouri, to the Philippines. The Court reversed
Nichols’s conviction, holding that once Nichols moved
to the Philippines, his original state (Kansas) was not
a jurisdiction “where [he] resides.” The plain language
of the statute applies only to offenders who move from
one U.S. state to another, and not to persons who move
to a foreign country. The Court observed that Congress
had subsequently required persons traveling in foreign
commerce to provide detailed information about their
travel (Pub. L. No. 114-119, § 6(a)(1)(B), 130 Stat. 22
(to be codified at 42 U.S.C. § 16914(a)(7)), and that
Nichols’s failure to report also had violated the Kansas
state registration law.
HABEAS
Welch v. United States, 136 S. Ct. 1257 (Apr. 18, 2016)
(No. 15-6418). The petitioner was convicted of being
a felon in possession of a firearm, the maximum
sentence for which is 10 years. Because of a prior
CRIMINAL JUSTICE n Summer 2016 state conviction for strong-arm robbery, he had been
sentenced to the minimum sentence of 15 years under
the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e). The sentence was upheld on direct appeal on
the ground that the prior conviction qualified under
the clause of the ACCA that covers an offense that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Welch’s
motion to vacate his sentence under 28 U.S.C. § 2255,
alleging that his state conviction was “vague,” was
denied. Proceeding pro se on a motion for a certificate
of appealability, Welch noted that Johnson v. United
States was pending in the Court and thereafter asked
the appellate court to hold his motion in abeyance
pending the decision in Johnson. Three weeks after
the circuit court denied the motion for appealability,
the Supreme Court held that the “residual clause” was
unconstitutionally vague. (Johnson v. United States,
135 S. Ct. 2551 (2015).) On cert from the order denying
a certificate of appealability, the United States agreed
that Johnson announced a new substantive rule that
would apply retroactively to cases on collateral review.
After appointing an amicus to argue on behalf of
the decision below and reviewing her arguments, the
Court concluded that despite the “unusual procedural
posture” in which the case stood (that is, on review of
an order denying a certificate of appealability), it had
the power to consider the question whether Johnson is
retroactive. Moreover, under Teague v. Lane, 489 U.S.
288 (1989), the decision in Johnson was substantive
rather than procedural and thus had retroactive effect
for cases such as Welch’s that were on collateral
review. “[R]easonable jurists at least could debate
whether Welch is entitled to relief.” The case therefore
was remanded for further proceedings. Opinion by
Justice Kennedy, in which all justices except Justice
Thomas joined. Justice Thomas dissented, disagreeing
with the majority on the question whether the Court
had jurisdiction to consider the retroactivity issue,
and also on the merits of that issue.
SECOND AMENDMENT
Caetano v. Massachusetts, 136 S. Ct. 1027 (Mar. 21,
2016) (No. 14-10078). The Supreme Judicial Court
of Massachusetts had upheld a state law prohibiting
the possession of stun guns on the ground that such
weapons are not “the type of weapon contemplated
by Congress in 1789 as being protected by the Second
Amendment.” 26 N.E.2d 688, 691 (2015). The Court,
per curiam, granted cert, vacated the state court’s
judgment, and remanded. The state court’s reasoning
was inconsistent with the decision in District of
Columbia v. Heller, 554 U.S. 570 (2008). Under Heller,
the Second Amendment extends to weapons that were
not in common use at the time of its adoption, and
to weapons that are not necessarily useful in warfare.
Stun guns, therefore, although a modern invention
53
possibly not used by the military, are not for those
reasons exempt from the protections of the Second
Amendment.
SIXTH AMENDMENT
Woods v. Etherton, 136 S. Ct. 1149 (Apr. 4, 2016) (No.
15-723) (per curiam). Michigan officers received an
anonymous tip that two white men were traveling in
a white Audi between Detroit and Grand Rapids,
possibly carrying cocaine. Etherton was driving the
Audi when it was pulled over for speeding. A search
of the driver’s door revealed 125.2 grams of cocaine.
At the trial, three officers described the anonymous
tip; defense counsel objected on hearsay grounds
the third time but the issue was not resolved; the
tip also was mentioned in the prosecution’s closing.
The court instructed the jury that the tip was not
evidence but had been admitted “only to show why
the police did what they did.” State postconviction
counsel argued that the admission of the tip violated
the Sixth Amendment’s confrontation clause, that
trial counsel was ineffective for failing to object
on that ground, and that counsel on direct appeal
had been ineffective for failing to raise both claims.
The state court rejected the first two arguments for
procedural reasons and the third on the merits. The
failure to object may have been strategic because the
tip was consistent with the defense argument that
Etherton was not involved and the drugs may have
belonged to the passenger. Moreover, there was no
prejudice because the other evidence of Etherton’s
guilt was substantial. Therefore, appellate counsel
was not ineffective. The case reached the Supreme
Court after the court of appeals, on federal habeas,
ruled for Etherton. However, under the strict
requirements of the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d)(1),
federal habeas is unavailable if “fairminded jurists
could disagree” on the correctness of a state court
decision. An even stricter standard applies where a
claim of ineffectiveness of counsel is involved. There
is a strong presumption that counsel’s decisions were
based on reasonable professional judgment. In this
case, the Court concluded that a “fairminded jurist”
could conclude that repetition of the tip did not
necessarily mean that its facts were true, and that
Etherton was not prejudiced when the tip and the
passenger’s testimony coincided. In addition, such a
jurist could conclude that the failure to object was
due not to incompetence but because the facts in the
tip were uncontested and consistent with Etherton’s
defense. The circuit court failed to give required
deference due to appellate counsel and the state court
under AEDPA, and thus cert was granted and the
judgment of the Sixth Circuit was reversed.
Luis v. United States, 136 S. Ct. 1083 (Mar. 30,
2016) (No. 14-419). The government is not entitled
54
to a pretrial order freezing a defendant’s funds
untainted by alleged illegal activity, despite 18
U.S.C. § 1345(a)(2), which authorizes pretrial seizure
of property “traceable” to an alleged violation of
banking or healthcare laws, or other “property
of equivalent value.” The plurality held that the
government’s interest in securing punishment
including forfeiture, and the victims’ interest in
restitution, were outweighed by the important and
“fundamental” Sixth Amendment right to obtain
counsel of one’s choice. The decision in Caplin
& Drysdale, Chartered v. United States, 471 U.S.
617 (1989), which upheld forfeiture of funds that
a convicted defendant would have used to pay his
lawyer, emphasized that the forfeiture statute in
question gave the government title to the property
at the time of commission of the act causing the
forfeiture. Thus, the defendant did not have good
title to the property and could not use it to pay his
lawyers. Accord United States v. Monsanto, 491
U.S. 600 (1989), which involved the same forfeiture
statute but a freeze order issued before trial. In both
cases, the frozen assets were directly traceable to
the crime charged. The plurality considered this
a significant difference from Luis’s case, where
the assets frozen had no immediate relation to
the healthcare fraud with which she was charged.
The plurality analogized the government’s interest
in the earlier cases as similar to that of a secured
creditor in bankruptcy, whereas in Luis’s case its
interest was more like that of an unsecured creditor.
The defendant’s interest in obtaining counsel of
her choice is superior to that of the government in
securing assets for forfeiture and restitution if there
is a conviction. Traditionally, goods are forfeited
only after conviction. Moreover, if defendants are
not able to obtain paid counsel because of pretrial
freezes, they will be relegated to underfunded and
overworked public defenders, which will diminish the
rights of criminal defendants generally. The decision
was announced by Justice Breyer, who delivered an
opinion joined by Chief Justice Roberts and Justices
Ginsburg and Sotomayor. Justice Thomas concurred
in the judgment but wrote separately that the Sixth
Amendment right to counsel is not subject to a
balancing test. Justice Kennedy, joined by Justice
Alito, dissented, arguing that the distinction between
tainted and untainted assets simply will encourage
defendants to spend or otherwise conceal the tainted
assets first, leaving untainted assets to pay private
counsel and no assets to be used to repay the victims
or the government as part of a sentence.
RECENT DECISIONS
Ocasio v. United States, No. 14-361 (May 2, 2016).
A police officer can be convicted of conspiring to
violate the Hobbs Act (18 U.S.C. § 1951) by receiving
CRIMINAL JUSTICE n Summer 2016
kickbacks from auto repair shop owners for sending
them cars damaged in accidents.
Luna Torres v. Lynch, No. 14-1096 (May 19,
2016). A person convicted of a state offence that is
identical to certain federal offences except for the
omission of a connection to interstate or foreign
commerce is convicted of an “aggravated felony” and
is deportable and ineligible for some discretionary
relief. 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii).
Simmons v. Himmelreich, No.. 15-109 (June 6,
2016). Dismissal of an action by a prisoner under
the Federal Tort Claims Act (28 U.S.C. § 1346(b)
because it related to a discretionary function does
not bar a Civil Rights Act suit (42 U.S.C. § 1983)
against the guards themselves.
Ross v. Blake, No. 15-339 (June 6, 2016). A
prisoner seeking relief under the Civil Rights Act
must first exhaust available administrative remedies,
42 U.S.C. § 1997e(a); case remanded with direction
to consider whether plaintiff did exhaust all
remedies that were “available.”
Molina-Martinez, No. 14-8913 (April 20, 2016).
Court cannot categorically require “additional
evidence” to show that guidelines error affected
substantial rights when judge imposed sentence at
the bottom of incorrect guidelines.
Foster v. Chatman, No. 14-8349 (May 23, 2016).
Court had jurisdiction to review Georgia state court
denial of certificate of probable cause to review
denial of habeas on Batson claim; egregious Batson
violation found (Batson v. Kentucky, 476 U.S. 79
(1986).
Betterman v. Montana, No. 14-1457 (May 19,
2016). Sixth Amendment right to a speedy trial
does not apply once defendant has been found guilty
either at trial or by a plea.
Lynch v. Arizona, No. 15-8366 (May 31, 2016).
Capital sentence reversed where counsel was
prevented from informing jury that the alternative
to death would be life without parole.
Kernan v. Hinojosa, No. 15-833 (May 16,2016).
Ninth Circuit erred in holding that California
Supreme Court’s summary denial of a habeas
petition was not on the merits and therefore was
not entitled to deferential review. AEDPA (28 U.S.C.
§§ 2254(b)(1)(A), (d)).
Johnson v. Lee, No. 15-789 (May 31, 2016).
Ninth Circuit erred in rejecting as a bar to federal
habeas California’s rule that claims are defaulted if
available but not raised on direct appeal.
ARGUMENTS
Monday, March 28, 2016:
Betterman v. Montana, No. 14-1457, Cert. Alert,
31:1 C rim . J ust . at 51 (Spring 2016) (Does the
speedy trial clause of the Sixth Amendment apply
to the sentencing phase of a case?) (Decided May
CRIMINAL JUSTICE n Summer 2016 19, 2016).
Tuesday, March 29, 2016:
Ross v. Blake, No. 15-339, Cert. Alert, 31:1 C rim .
J ust . at 51 (Spring 2016) (Is there a common law
“special circumstances” exception to the Prison
Litigation Reform Act, relieving an inmate of his
obligation to exhaust administrative remedies when
he wrongly believes he satisfied exhaustion by participating in an internal investigation?). (Decided
June 6, 2016).
Wednesday, March 30, 2016:
Welch v. United States, No. 15-6418, Cert. Alert, 31:1
C rim . J ust . at 50 (Spring 2016) (Decided April 18,
see discussion supra.).
Tuesday, April 19, 2016:
United States v. Bryant, No. 15-420, Cert. Alert,
31:1 C rim . J ust . at 50 (Spring 2016) (18 U.S.C.
§ 117(a) defines as a federal crime the commission
of a domestic assault by a person who has been convicted twice on separate occasions, in federal, state,
or Indian tribal court proceedings, for “enumerated
domestic violence offenses.” Is it constitutional to
rely on uncounseled tribal-court misdemeanor convictions as predicate offenses?).
Wednesday, April 20, 2016:
Birchfield v. North Dakota (No. 14-1468), Bernard v.
Minnesota (No. 14-1470), and Beylund v. Levi (No.
14-1507), Cert. Alert, 31:1 C rim . J ust . at 50 (Spring
2016) (In the absence of a warrant, may a state make
it a crime to refuse to take a chemical test to detect
the presence of alcohol in a person’s blood?).
Tuesday, April 26, 2016:
Mathis v. United States, No. 15-6092, Cert. Alert,
31:1 C rim . J ust . at 49 (Spring 2016) (Requirements
for a predicate prior conviction under the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(1).).
Dietz v. Bouldin, No. 15-458, Cert. Alert, 31:1 Crim.
Just. at 51 (Spring 2016) (After a judge has discharged
a jury from service in a case and the jurors have left
the judge’s presence, may the judge recall the jurors
for further service in the same case?).
Wednesday, April 27, 2016:
McDonnell v. United States, No. 15-474, Cert.
Alert, 31:1 C rim . J ust . at 49 (Spring 2016) (Is
“official action” under the federal bribery statute, the Hobbs Act, and honest-services fraud
statute limited to exercising actual governmental
power, threatening to exercise such power, or pressuring others to exercise such power, and must the
jury be so instructed; and if not so limited, are the
Hobbs Act and honest-services fraud statutes unconstitutional?). n
55
SECTION NEWS
Criminal Justice
Forensics Conference
BY RABIAH BURKS AND KYO SUH
T
he ABA Criminal Justice Section and the Louis Stein
Center for Law and Ethics (Fordham University School
of Law) hosted the “Seventh Annual Prescriptions for
Criminal Justice Forensics” on June 3, 2016, in New York
City. The annual conference brings together expert academics, prosecutors, defense lawyers, judges, scientists, and others
to discuss forensic evidence and its impact on criminal justice. This year’s conference featured topics that examine the
relationship between DNA evidence, arson investigations,
accreditation, encryption, scientific policy, and criminal justice. Speakers included representatives from the Department
of Justice; Bureau of Alcohol, Tobacco, Firearms and Explosives; and National Institute of Standards and Technology.
NEUROSCIENCE AND CRIMINAL JUSTICE REFORM
The Criminal Justice Section’s Spring Meeting, cosponsored
by the State Bar of New Mexico, featured the CLE program
“Neuroscience: Paving the Way for Criminal Justice Reform”
on April 29. The Spring Meeting (also including council and
committee meetings) was held April 28–30, 2016, in Albuquerque, New Mexico. New Mexico Supreme Court’s Chief
Justice Charles Daniels served as the luncheon keynote speaker.
Roberta Cooper Ramo, the first woman to become president
of the American Bar Association, provided opening remarks.
Key panels included: “A Neuroscience Primer for the
Criminal Justice Practitioner”; “Neuroscience and Environmental Factors: Is It Nature or Nurture”; “Neuroscience and
Solitary Confinement”; and “The Neuroscience of Hate: The
Making of Extremist Groups.”
Other programs during the meeting included: “Border
Patrol Excessive Force and Profiling: Reforming the Nation’s
Largest Federal Police Force with Policing Best Practices” and
“Women in Criminal Justice Networking Meet and Greet.”
RABIAH BURKS is the senior public
relations specialist for the Criminal
Justice Section; contact her at
[email protected].
KYO SUH i s the technology and
publications manager for the Criminal
Justice Section; contact him at kyo.suh@
americanbar.org. Both are also columnists
for Criminal Justice magazine.
“DISMANTLING THE SCHOOL-TO-PRISON PIPELINE” HELD IN MEMPHIS
The ABA Criminal Justice Section and the Ben F. Jones Chapter of the National Bar Association hosted the joint town
hall “Dismantling the School-to-Prison Pipeline” on April 21,
2016, in Memphis, Tennessee. Nearly 200 educators, lawyers,
judges, students, and community members discussed the issue
of the school-to-prison pipeline, which funnels youth into the
criminal justice system due to societal shortcomings in addressing issues of poverty, race, and other group identities.
Section Chair Judge Bernice Donald and Sarah E. Redfield, professor of law at the University of New Hampshire,
led the town hall. Dorsey E. Hopson II, superintendent of
Shelby County Schools, provided opening remarks. Attendees also heard from various stakeholders, including Ebony
Howard from the Southern Poverty Law Center.
2016 CRIMINAL JUSTICE SECTION AWARDS
The CJS Awards Luncheon will be held
during the CJS 9th Annual Fall Institute on November 4,
2016, in Washington, D.C. All five Criminal Justice Section
awards will be presented at the luncheon to the recipients
listed below:
Charles R. English Award: James E. Felman, Kynes, Markman & Felman;
Frank Carrington Crime Victim Attorney Award: Stephanie Richard, Coalition to Abolish Slavery & Trafficking;
Livingston Hall Juvenile Justice Award:
Ebony Howard, Managing Attorney, Southern Poverty Law
Center;
Norm Maleng Minister of Justice Award:
Kym Worthy, Wayne County Prosecutor; and
Raeder-Taslitz Award: Angela Davis, American University
UPCOMING EVENTS
CJS Programs and Meetings during the ABA Annual
Meeting
August 4–7, 2016
San Francisco, CA
Southeastern White Collar
Crime Institute
September 8–9, 2016
Braselton, GA (near Atlanta)
Fifth Annual London White Collar
Crime Institute
October 10–11, 2016
London, UK
CJS Fall Institute and Meetings
November 3–5, 2016
Washington, D.C.
For more information, see www.americanbar.org/crimjust. n
56
CRIMINAL JUSTICE n Summer 2016