Thursday, May 26, 2016
The Supreme Court this week in Foster v. Chatman (14-8349, decided May 23,2016) reversed a Georgia murder conviction because the prosecutors violated the requirement of Batson v. Kentucky, 476 U.S. 79 (1986) that lawyers not use race-based peremptory challenges to remove jurors. The Court, in an exquisitely detailed factual analysis by Chief Justice Roberts, dissected the prosecutors' purported reasons for challenging two prospective African-American jurors and found them disingenuous.
In a Slate article, my friend and colleague, the prolific and invaluable Prof. Bennett Gershman ("How Prosecutors Get Rid of Black Jurors," May 26,2016) writes that, notwithstanding Batson and now Foster, prosecutors will continue to "remove black persons from jury service with impunity simply by concocting purportedly race-neutral reasons." He points out that the Foster reversal occurred only because of the random discovery of the prosecutors' file containing telltale notations and comments about their intentions to strike black jurors.
I agree with Prof. Gershman. Prosecutors will continue to use race as a basis, sometimes the predominant or even only basis, in their determinations which jurors to challenge. And, so will defense lawyers. Given the limited knowledge lawyers have about the predelictions and potential biases of jurors, especially in jurisdictions which prohibit or severely limit lawyer questioning of jurors. a juror's's race is perceived by trial lawyers, reasonably I believe (although not to my knowledge based on any scientific proof), as an indication of how he will vote in the jury room, just as how he will vote in the voting booth.
As Prof. Gershman states with respect to prosecutors (generally applicable also to defense lawyers), "Prosecutors have long believed that striking black jurors improves their chances of convicting a black defendant. Prosecutors assume that black people are more likely than white people to have negative feelings about government, to have had bad experiences with the police, are more likely to have been targeted for arrests and forcible stops than white people, are more likely to have been imprisoned for minor drug crimes, and are more likely to believe that crimes against black victims are prosecuted less aggressively than crimes against whites." Thus, generally, prosecutors (and defense lawyers) believe that, all other things being equal, black jurors are more likely to acquit black defendants than other jurors. (I am not aware of any empirical studies of how race affects jury decisions. Empirical studies of jury verdicts are, it seems, far fewer than analyses of voting decisions.)
Accordingly, prosecutors and defense lawyers, both seeking to win (and believing that jury composition is a major factor as to whether they will), and therefore desiring jurors likely to favor their clients, consider race in their jury selection decisions and, when challenged (as are prosecutors more often than defense lawyers) employ less than candid justifications for their choices. And, since judges are hesitant to call lawyers, especially prosecutors, liars, the lawyers' justifications, if at all plausible, are almost always accepted. Compliance with Batson's dictates therefore is essentially, as Prof. Gershman states, "a charade," commonly violated by prosecutors (and also by defense lawyers).
To be sure, there are some differences between race-based challenges by prosecutors and by defense lawyers. Prosecutors' race-based challenges more often are exercised in order to deprive a defendant from a cross-section of the community and a jury including some of his peers; defense lawyers' race-based challenges are more often designed to reach those goals. Prosecutors' race-based challenges more often deprive black citizens of the right to serve on juries; defense lawyers' challenges enhance that (but diminish the right of whites and others to serve). Additionally, to discriminate - which is what challenging a juror based on race is - is presumably more invidious if done by an agent of the state than a private citizen. But race-based challenges by either side are common, and violate the constitutional principles of Batson.
Batson, therefore, simply does not work. Both sides commonly violate its principles to achieve their own goals. It may be considered a noble experiment with a lofty goal that has failed, or perhaps an example of a short-sighted Supreme Court just not realizing how things are done down in the pits. What can or should be done? I am sure many trial lawyers, both criminal and civil, prosecutor or defense counsel, would prefer it be eliminated. Prof. Gershman mentions a proposal to limit peremptory challenges to situations where attorneys give a "credible reason" for their exercise, what I call a challenge for "semi-cause." Another proposal he mentions is to track carefully all prosecutorial challenges similar to the way police stops are tracked. An obvious way is to eliminate all peremptory challenges, as Justice Marshall had suggested in Batson. And, of course, professional sanctions against lawyers who violate Batson might help enforce its dictates. (However, the history of lack of sanctions against prosecutors for other areas of prosecutorial misconduct suggests increased sanctions would have little effect). Lastly, more lengthy voir dire of jury panels, especially if by lawyers and not judges, would provide the litigants with a greater basis to exercise challenges than racial generalizations.
As Prof. Gershman says, "[Batson] diminishes the integrity of the criminal justice system." The decision in Foster is unlikely to solve that problem.
In Luis v. United States, the Supreme Court held that pretrial restraint of untainted assets needed by a criminal defendant to retain counsel of choice violates the Sixth Amendment. But what about pretrial restraint of untainted assets not needed to hire counsel? The Fourth Circuit, alone among federal circuits, permits pretrial restraint of untainted substitute assets, subject to Sixth Amendment concerns. In United States v. Chamberlain, in the Eastern District of North Carolina, the government moved for a post-indictment pretrial restraining order against the defendant's untainted substitute asset pursuant to 21 U.S.C. Section 853(e). Both the defendant and government agreed that the untainted asset in question, a parcel of land, was not needed by Chamberlain in order to secure criminal defense counsel. The defendant opposed the government's motion, arguing that Justice Breyer's language/analysis in Section II.B.1. of Luis foreclosed pretrial restraint of any substitute asset under Section 853, in effect overruling Fourth Circuit precedent. The government maintained that Luis was inapplicable since Chamberlain raised no Sixth Amendment issue. Judge Mack Howard sided with the government. "While the undersigned agrees that the Supreme Court may in fact interpret Section 853 in this way in the future, it has not yet ruled on this issue and has not upset applicable Fourth Circuit precedents governing the instant question presented before this court." Steve West was on the briefs for the government and Elliot Abrams (Cheshire Parker Schneider & Bryan) and Tommy Manning (Manning Law Firm) were on the briefs for Chamberlain. According to Abrams, this all matters at a practical level for the criminal defense bar:
Consider the facts of Luis. There the government established probable cause to believe that the defendant obtained more in illegal proceeds than she currently possesses.
Under Luis, she can use her innocent/substitute assets to pay her attorneys a reasonable fee. But under Billman and its progeny the relation-back doctrine of 853(c) applies to all of those innocent/substitute assets such that, if she is convicted, the government’s ownership interest in all of her assets will be deemed to have vested before she paid her attorneys.
Therefore, if she is convicted, the government can forfeit all funds paid for legal services, despite that a court authorized those payments under the Sixth Amendment.
Section 853(n) does not help because the lawyer’s right vested after the property became forfeitable and because the lawyer had reason to believe that the property was subject to forfeiture. And since forfeiture is mandatory, the court could not exempt those funds from forfeiture.
This would create the same Sixth Amendment problem that Luis solved—people being unable to use their innocent assets to hire counsel. It would also force lawyers to take such cases on contingency, which is ethically improper.
Here are the government and defense briefs and Judge Howard's opinion. U.S. v. Chamberlain - Gov Application Restraining Order, U.S. v. Chamberlain - Response in Opposition to Gov Motion for Restraining Order, U.S. v. Chamberlain-Government's Reply Memorandum, U.S. v. Chamberlain-Defendant's Sur-Reply, U.S. v. Chamberlain-Order Granting Government's Motion.
Judge Howard's Order is being appealed to the Fourth Circuit.
Thursday, May 19, 2016
This just in from the Supreme Court. The Sixth Amendment's Speedy Trial Clause does not apply to the time between conviction, via trial or guilty plea, and sentencing. Justice Ginsburg wrote the unanimous opinion. The Court noted that petitioner did not base his claim on the Due Process Clause and refused to speak to the issue of whether excessive delay between conviction and sentencing might run afoul of Due Process. The Court reserved the question of whether the Speedy Trial Clause may apply in the case of bifurcated procedures, in which facts that could enhance the prescribed sentencing range are determined during the sentencing phase. The Court also left open whether the Speedy Trial right reattaches upon renewed prosecution of a convicted defendant who has prevailed on appeal. Justice Sotomayor wrote a separate concurrence stating that "in the appropriate case" she would consider applying the Barker v. Wingo test to determine whether delay between conviction and sentencing ran afoul of Due Process. Justice Thomas, joined by Justice Alito, wrote separately to say that the Court should not prejudge the Due Process question, but should wait for a proper presentation, argument, and full briefing "before taking a position on this issue." The case is Betterman v. Montana.
Thursday, May 5, 2016
NACDL and the US Chamber of Commerce have a Law & Policy Symposium on Thursday May 26, 2016 at the US Chamber of Commerce in Washington, D.C. The title of the program is "The Enforcement Maze: Over-Criminalizing American Enterprise." The morning keynote speaker will be Chair of the House Committee on the Judiciary Bob Goodlatte, with David Ogden, former deputy AG, doing a keynote address later in the day. For the full program, see here - Download Agenda_NACDL-ILR Law Policy Symposium_External Agenda_5-5-16
Wednesday, May 4, 2016
As every veteran litigator knows, who the trial judge is not only a major determinant in the ultimate result of a case, but a major factor in how unpleasant and difficult the lawyer's life will be. There are judges, I suspect fewer than in the past, who are so biased to defendants and hostile to their lawyers, more often to defense lawyers than prosecutors, that the case is a nightmare for the lawyers (and obviously their clients). Reversals of judges for intemperate and biased conduct toward lawyers, or even the generally meaningless criticisms in cases that are not reversed, are rare. Defense lawyers, therefore, rejoice when one of those decisions is issued by an appellate court.
Last week, the Ninth Circuit in an unpublished opinion, United States v. Onyeabor, 13-50431 (April 27, 2016), reversed a conviction by a jury before Central District of California Judge Manuel Real primarily because the judge's remarks "devastated the defense, projected an appearance of hostility to the defense, and went far beyond the court's supervisory role" so that they "revealed such a high degree of antagonism as to make fair judgment impossible." This is not the first time the court has admonished Judge Real, who in 2006 was the subject of a Congressional investigation which considered but did not vote impeachment.
Almost every state has a judicial conduct commission which on occasion removes unfit judges. These commissions generally consist of a combination of judges, lawyers, and laypeople. There is no direct federal analog, although there is a somewhat clumsy apparatus whereby the judiciary itself may impose sanctions and recommend that Congress consider impeachment. Sanctions on federal judges for abusing lawyers and litigants are, to my knowledge, virtually non-existent. Although a federal judge apparently may be removed for beating a spouse (as Alabama District Judge Mark Fuller likely would have, had he not resigned) , he or she will likely not be sanctioned at all for beating up lawyers and defendants.
Sunday, May 1, 2016
"The article rejects suggestions that the rhetorical and regulatory changes occurred because prosecutorial misconduct has become more prevalent. It identifies other social causes: a public awakening to criminal justice problems for which prosecutors bear responsibility; revelations, in particular, regarding the role of prosecutorial misconduct in wrongful conviction cases; new social science understandings about social and psychological predicates for prosecutorial wrongdoing; and reform organizations’ inclusion of systemic prosecutorial reform on their agenda. The article shows how the internet has served as the essential catalyst for shifting public and judicial attitudes. The article concludes by predicting that the old and new approaches to prosecutorial accountability will coexist into the foreseeable future, and that the implications will include both a more active judicial role in critiquing and overseeing prosecutors and increased self-regulation by prosecutors’ offices."