Adjunct Law Prof Blog

Fifth Circuit: Pharmacy Purchase Logs are Nontestimonial Business Records

In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness.  Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.

The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine.  The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6).  The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.

The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes.  Defendant argued that for this reason, the records were not business records - records kept for a business purpose.  The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business.  The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business."  Slip Op. at 5.

Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights.  The majority rejected this argument also.  Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.

The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason.  The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.

This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.

Craig Estlinbaum

King; Enforcing Effective Assistance after Martinez

Professor Nancy J. King (Vanderbilt) has posted her essay, "Enforcing Effective Assistance after Martinez" on SSRN.   Here is the abstract:

This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.

This Essay is forthcoming in the Yale Law Journal.

Craig Estlinbaum

Extraneous Facebook Remarks Leads To Remand For Re-Sentencing

Debra Cassens Weiss at ABA Journal has this report about a strange federal child pornography case in Connecticut where the appeals court has remanded the case back to the trial court for re-sentencing.  From the story:

...[U.S. District Judge] Eginton justified his decision to impose the longer sentence by referencing “Facebook, and things like it, and society has changed.” He speculated that the proliferation of Facebook would spur an increase in child pornography, and said he hoped Facebook founder Mark Zuckerberg was “enjoying all his money because … he’s going to hurt a lot of people,” the appeals panel said.

The appellate court remanded for a new sentencing hearing, stating, "“It is plain error for a district court to rely upon its own unsupported theory of deterrence at sentencing, especially where, as here, that theory has little application to the actual facts of the case itself."

Craig Estlinbaum

To Mirandize Or Not To Mirandize

Whether or not authorities are duty bound to read the alleged Boston Marathon bomber, Dzhokhar Tsarnaev, his Miranda rights (and the consequences, if any, of their failure to do so) has been a hot topic in the news and blogosphere in recent days.  I have been following the story as closely as I can and though I would post some of the most informative and interesting news and opinion pieces on the subject here: 

• Adam Goodman (Harvard Law Student), "How the Media Have Misunderstood Dzhokhar Tsarnaev's Miranda Rights" (The Atlantic).
• Erwin Chemerinsky (UC-Irvine Law), "Dzhokhar Tsarnaev Has Rights" (Los Angeles Times).
• Akhil Reed Amar (Yale Law), "What If Dzhokhar Tsarnaev Decides Not to Talk?" (Slate).
• Eric Posner (Chicago Law), "The New Law We Need in Order to Deal With Dzhokhar Tsarnaev" (Slate).
• Jeffrey Rosen (George Washington Law), "Do You Have the Right to Remain Silent? The Obama administration's radical view of Miranda rights was in place well before Boston" (The New Republic).
• Roger Pilon (Cato Institute), "The Constitution Ensures A Fair Trial For Dzhokhar Tsarnaev, But Miranda Has a Public-Safety Exception" (Forbes).
• Real Clear Politics, "Dershowitz: Authorities Will "Regret" Not Reading Boston Bomber His Miranda Rights" (video).
• Bloomberg Editorial, "Dzhokhar Tsarnaev’s Rights, and the Public’s" (Bloomberg View).
• Doug Mataconis, "Dzhokhar Tsarnaev, Miranda, And The Public Safety Exception" (Outside the Beltway).
• Tom McCarthy, "Lindsey Graham: don't read suspect Miranda rights if arrest is made" (The Guardian).

Thiere are surely many more well-reasonsed commentaries on this subject - please feel free to add or link to them in comments.  As an aside, I predict a healthy increase in law review submissions by  professors, practicing attorneys and students addressing the public safety exception to Miranda v. Arizona, in the coming months.

Craig Estlinbaum

Probable Cause Order Details Charges Against Former Texas Prosecutor

On April 19, a Texas court of inquiry charged former Williamson County, Texas district attorney (and current Texas district judge) Ken Anderson with criminal contempt of court, tampering with or fabricating physical evidence and tampering with government records arising from Anderson's prosecution of Michael Morton for the murder of his wife while he was district attorney.

Quite famously it was later shown, after Morton spent 25 years in a Texas prison, that Morton did not in fact murder his wife.  Over the years, there has been volumes written on this tragic miscarraige of justice - Texas Monthly's comprehensive case coverage is as good a starting place as any for the uninitiated. 

In any event, the probable cause order entered by the court of inquiry's presiding judge along with the supporting findings of facts and conclusions of law are now available online here.  This article in the Sunday Austin American-Statesman points out that Anderson's statute of limitations defense may be the first hurdle current Williamson County prosecutors have to clear before the charges against Anderson can be brought to a jury.

Hat Tip:  Grits For Breakfast

Craig Estlinbaum

Roberts on Effective Plea Bargaining Counsel

Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network.  The article appears to have been accepted for later publication by the Yale Law Journal.  This is the abstract:

Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.

If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.

In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.

The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?

Roberts' article highlights proposed professional and ethical norms relating to plea bargaining.   The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings.   The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges.  This article is recommended reading.

Craig Estlinbaum

Third Circuit Reverses Contempt Conviction Against Trial Judge

An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case.  The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013). 

The contempt holding arises from proceedings in a murder prosecution.  The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide.  Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder. 

To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court.  The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.

The writ of mandamus, however, turned out not to be the end to the matter.  Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter.  The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense."  The judge went on to add the opinion was 'contrary to law and all notions of justice."  The judge then recused himself for a number of reasons.  Ultimately, one co-defendant died before trial; the other was acquitted by a jury.

Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts.  The counts were:

1. Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
2. Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
3. Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.

The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial.  The Special Master recommended Judge Kendall be acquitted on all counts.  The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.

Judge Kendall's appeal to the Third Circuit followed.

The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment.  In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'"  Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."

Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice."  Kendall certainly is an interesting case and a recommended read.

Craig Estlinbaum

NIU Law Review Symposium: Eavesdropping, Wiretapping and Privacy

The Northern Illinois Law Review will host a symposium titled "Eavesdropping and Wiretapping in Illinois" on April 19, 2013.  Here is the announcement, which includes links for times, location, registration and agenda, among other things.

Craig Estlinbaum

Eagly on Gideon in Immigration Proceedings

Since Padilla v. Kentucky, decided in 2010, expressly established a connection between criminal pleas and collateral criminal consequences, there has been growing discussion as to whether or not Sixth Amendment protections announced in the landmark decision Gideon v. Wainwright, celebrating its 50th Anniversary this year, should be extended to any degree to persons facing deportation. 

Professor Ingrid V. Eagly's (UCLA) article, "Gideon's Migration," posted on SSRN this week, makes a valuable contribution toward this issue.  Here is the abstract.

For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon’s migration. At the level of everyday practice, criminal defense attorneys appointed pursuant to Gideon now advise clients on the immigration consequences of convictions, negotiate “immigration safe” plea bargains, defend clients charged with immigration crimes, and, in some model programs, even represent criminal defendants in immigration court. A formal right to appointed counsel in immigration proceedings has yet to be established, but proposals grounded in the constitution, statutes, and expanded government funding are gaining momentum.

From the perspective of criminal defense, the changing role of Gideon-appointed counsel raises questions about the breadth and depth of immigration assistance that should develop under the defense umbrella. From the perspective of immigration legal services, the potential importation of a Gideon-inspired right to counsel requires consideration of the appropriate scope and design for an immigration defender system. This Essay does not attempt to resolve these challenging questions, but rather provides a framework for further reflection that is grounded in lessons learned from the criminal system’s implementation of Gideon.

Craig Estlinbaum

Thurgood Marshall Conference: The Constitutionalization of Immigration Law

The Thurgood Marshall School of Law in Houston will host a two-day conference April 4-5 titled "The Constitutionalization of Immigration Law" (brochure here).  I am honored to be included among the speakers at this conference.  I will be on the panel for "Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus," which will be presented Thursday afternoon.  I will be joining Naomi Jiyoung Bang, Senior Attorney at FosterQuan LLP in Houston (and also a Clinical and Adjunct Professor of Law at South Texas College of Law) and Franklin Bynum, from the Harris County Public Defender's Office, on this particular panel.  Topics covered in the conference are:

• Pleanary  Power - Supreme Court Deference to the Executive and Legislative Branches:  Brief History of the Chinese Exclusion Cases;
• Fifth Circuit Practice Pointers - A View from the Bench;
• Washington Insiders View on Immigration Reform, DACA, Stateside Waivers, and Path to Citizenship;
• Fifth Amendment - Due Process Rights to Counsel in Immigration Proceedings: Matter of Lazada, Compean I & II, MAM and Circuit Court Decisions;
• Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus;
• Sixth Amendment Right to Effective Assistance of Counsel;
• Fourth Amendment Search and Seizure in Immigration Proceedings;
• Restitution and Compensation for Victims of Human Trafficking in the United States; and
• Round Table Clinicians Luncheon - Infusing Best Practices in Immigration Law School Clinics.

Thank you to Professor Fernando Colon-Navarro, Director of LLM and Immigration Development at Thurgood Marshall for this invitation.  I am honored to participate in the comprehensive and timely conference.

Craig Estlinbaum

Texas Tech Law Review to Host Juveniles & Criminal Law Conference

The Texas Tech Law Review will host its 7th Annual Criminal Law Symposium: Juveniles & Criminal Law, on April 5, 2013, at the Mark and Becky Lanier Auditorium on the law school campus.  The program as presented on the law review website:

Keynote Address:  Franklin Zimring (Boalt)

Panel 1:  When are (should) juveniles (be) tried as juveniles and when as adults?

• Ellen Podgor, Moderator (Stetson)
• Carissa Hessick (Arizona State)
• Janes HJoeffel (Tulane)
• David Pimentel (Ohio Northern)
• Christopher Slobogin (Vanderbilt)

Lexis/Nexis Luncheon Speaker:  Arnold Loewry (Texas Tech)

Panel 2:  Do (should) juveniles have more, less, the same, or different rights?

• Richard McAdams, Moderator (Chicago)
• Ronald Allen (Northwestern)
• Tamar Birckhead (North Carolina)
• Patrick Metze (Texas Tech)
• David Tanenhaus (UNLV)

Panel 3:  What is (should be) the scope and limitations of juvenile punishment?

• Joshua Dressler, Moderator (Ohio State)
• Joseph Kennedy (North Carolina)
• Michael Perlin (New York)
• Kevin Saunders (Michigan State)
• The Honorable Irene Sullivan (State of Florida)

More Information.

Craig Estlinbaum

Oregon Death Row Inmate Rejects Reprieve

What happens when a condemned murderer receives a reprieve from death row from the governor, but doesn't want it?  This question likely will be answered soon by the Oregon Supreme Court. 

Craig Estlinbaum

Effective Assistance in Plea Negotiations Symposium at Duquesne

Professor Doug Berman at Sentencing Law & Policy commented this morning on what promises to be a very timely and important symposium upcoming at Duquesne Law School. The syposium is called "Plea Bargaining After Lafler and Frye" and will be held February 28-March 1 at Duquesne in Pittsburgh in cooperation with the Criminal Justice Section, White Collar Crimes Committee, Mid-Atlantic Region.  The symposium schedule is here.

Craig Estlinbaum

Novel to Help Jailhouse Lawyers

Interestingly, Terri LeClerq recently wrote a graphic novel to help prisioners. Here is how she describes this important project:

Maybe you wonder why inmates need help learning to write complaints (grievances).  With an average reading level of 5th grade and lots of misinformation, inmates rarely write a grievance that succeeds.  They need our help.

I've written college texts, legal writing columns, and a prison-conditions blog.  Review me at legalwritersink.com  and prisongrievances.com.  I've spent 10 years creating this graphic novel

• to help the 1 in 100 Americans in our prison system,
• to help the courts receive credible writs, and
• to help taxpayers avoid paying for time-consuming, frivolous, or erroneous filings.

Multitudes of prison officials and staff, court personnel, defense and plaintiff attorneys, reading specialists, and academics have reviewed the manuscript.  A professional artist and professional letterer (yep!) worked to make each page both entertaining and educational.  The formerly incarcerated who have reviewed it are ready to send a graphic novel back to their old roomies.

Additional information can about this project can be found here. 

Mitchell H. Rubinstein

 

Hat Tip: Legal Writing Prof Blog

 

'Public' Tweets Are Subject to D.A.'s Subpoena, Judge Says

The case stems from the Occupy Wall Street protests. A copy of the July 2, 2012, New York Law Journal article discussiing this issue is available here.

Mitchell H. Rubinstein

Judge Orders Defendant's Mouth Taped Shut

We do not normally cover criminal law issues on this blog, but this one caught my eye. A Pennsylvania state court ordered a defendant's  mouth taped shut by sheriff’s deputies for repeatedly disrupting jury selection for his trial. Additionally details are available from ABA Journal Blog.

Mitchell H. Rubinstein

Now We Glorify Bail Bondsman!

I was amazed that the New York Times ran an article about bail bondsman, here.  I guess the point of the story was to profile one successful bondsman for the stars-but so what. As the article points out, bail bondsman are basically insurance agents (except they may hire bounty hunters to track down people who may have jumped bail). Before they make loans, they check out defendants assets. I suppose their might be value in utilizing an agent who will keep the stars assets private, but the article does not highlight that.  

Mitchell H. Rubinstein

Confessing To A Crime, But Innocent

As hard as it is to believe, defendants sometimes confess to crimes that they did not commit. This occurs in labor law as well when someone admits to misconduct. A recent New York Times article documents this and cites to a law review article where several defendants were later released (despite their confession) based upon DNA evidence. That article is available here.

Mitchell H. Rubinstein

Interesting Story About Former DA Robert Morgenthau

The ABA Journal ran an interesting story about Robert Morgenthau which readers may find of interest, here. Morgenthau was the Manhattan DA for 35 years and at age 91is of counsel at Wachtell, Lipton, Rosen & Katz in New York City. He also served in the Kennedy Administration. The DA portrayed on the TV Show Law and Order loosely is modeled after him.

I never met Mr. Morgenthau. However, at age 91 I hope that I am not working in a law firm! But then again, maybe I will be lucky to be working at all!

Mitchell H. Rubinstein

Ankle bracelet and breathalyzer technology

Lohan's ankle bracelet has breathalyzer technology is an interesting May 25, 2010 AP article that was picked up by Yahoo News. What attracted me to this article was the fact that ankle bracelets now can detect if a person has been drinking (No, I am not a Lohan fan and  I am not even sure who Lohan is). As the article explains:

The bracelet uses the same technology as a breathalyzer, but instead of checking the breath for alcohol, it samples the perspiration on the skin. After alcohol is consumed, it eventually enters the bloodstream and a small amount is expelled through the skin.

The bracelet tests the skin every half hour. If there's alcohol, it causes a chemical reaction in the device's fuel cell. Usually once a day, the information is sent over phone lines to the company, which alerts the courts or probation officer if alcohol is detected at a blood-alcohol level of 0.02 or higher.

Mitchell H. Rubinstein