Articles Posted in Criminal Appeals

stray catThe right against self-incrimination is a well-known part of the U.S. Constitution, but it is not always well understood. Applying this principle in the real world, with all of its ambiguity and uncertainty, has proven quite challenging for the courts. The Fifth Circuit Court of Appeals recently ruled on a claim that police violated a person’s First, Fourth, Fifth, and Fourteenth Amendment rights by allegedly retaliating against a person after he refused to answer their questions. The court ruled for the plaintiff on his Fourth Amendment claims but not the other claims. Alexander v. City of Round Rock, No. 16-cv-50839, slip op. (5th Cir., Apr. 18, 2017). The case is a civil lawsuit, rather than a criminal prosecution, but its interpretation of the Fifth Amendment’s right against self-incrimination could affect future Texas criminal cases.

The Fifth Amendment’s protection against self-incrimination generally means that a person cannot be compelled or coerced into saying something that could place them in criminal trouble. A refusal to answer questions because of this right is commonly known as “pleading the Fifth.” The Fifth Amendment has also been interpreted as requiring courts to suppress confessions by defendants that were not given voluntarily. The caselaw remains unclear on which remedies may be available when a Fifth Amendment violation occurs outside the context of a custodial interrogation.

According to the court’s statement of the facts of the case, all drawn from the plaintiff’s complaint, an officer stopped the plaintiff “in a hotel parking lot after observing what he perceived as suspicious activity.” Alexander, slip op. at 1. The plaintiff stated that he had stopped his vehicle and gotten out to look for a stray cat he had seen. He told the officer that he would not answer any of his questions.

amusement parkProsecutors are obligated to turn over evidence that could potentially exonerate a defendant in a criminal case. This is known as the Brady rule, after the Supreme Court’s ruling in Brady v. Maryland, 373 U.S. 83 (1963). A federal appellate court recently ruled on a defendant’s claim that the prosecution violated his rights by failing to disclose information about criminal charges against two federal agents for conduct during the investigation of the defendant. The court was harshly critical of the two agents, who each received lengthy prison sentences, but it held that their criminal activity did not affect the reliability of the government’s case against the defendant. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

The Brady rule arose from a murder prosecution against two defendants. The named defendant, Brady, maintained that the other defendant committed the murder. The prosecution withheld a statement by the other defendant confessing to committing the murder alone. Without that evidence, Brady was convicted. The Supreme Court held that the prosecutors had violated Brady’s rights under the Due Process Clause of the Fourteenth Amendment. It is now common for defendants to request all “Brady evidence” from prosecutors during criminal cases.

The defendant in Ulbricht was convicted of multiple counts in connection with his operation of an online marketplace known as “Silk Road,” where people could anonymously exchange contraband, such as drugs and false identification documents, using the virtual currency known as Bitcoin. As part of the investigation into Silk Road, law enforcement agents would obtain the cooperation of low-level administrators and then pose as them using their online Silk Road accounts. A Secret Service agent and a Drug Enforcement Administration (DEA) agent were eventually charged with using this access to the Silk Road system to steal millions of dollars worth of Bitcoins.

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deleter folderCriminal records can cause problems for a person long after their case has ended and they have paid their debt to society. Background searches are now a common feature in employment, housing, and other important areas of society. Under certain circumstances, it is possible to remove information about a criminal case from the public record with an expunction or seal information from public view with an order of nondisclosure. These types of relief are usually only available in cases that ended in an acquittal, an executive pardon, or the successful completion of a deferred prosecution plan. Some people are now attempting to expunge records of convictions in cases in which the U.S. Supreme Court has ruled the underlying statute unconstitutional. This does not fit neatly into the letter of most expunction laws, but it seems consistent with those laws’ spirit.

An expunction, also known as expungement, removes information about a case from court records and law enforcement files, including the actual destruction of the physical file. This includes records relating to a person’s arrest, detention, and charge or charges. An order of nondisclosure prohibits public officials from releasing information about a criminal case. Texas allows expunction of records in cases in which a trial ended in an acquittal, a pardon was issued after a conviction, or any type of clemency was granted based on “actual innocence.” Tex. Code Crim. P. Art. 55.01(a). For cases that never proceeded to trial, Texas allows expunctions when the charges were dismissed, no community supervision was ordered, and a sufficient period of time has passed. Major felony offenses are generally not eligible for expunction or nondisclosure.

Up until 2003, 14 states in the U.S., including Texas, had criminal statutes prohibiting “homosexual conduct,” also known as “sodomy laws.” Texas made it a Class C misdemeanor to “engage[] in deviate sexual intercourse” with a member of the same sex. Tex. Pen. Code § 21.06. The U.S. Supreme Court ruled that this statute violated substantive due process rights under the Fourteenth Amendment. Lawrence v. Texas, 539 U.S. 558 (2003). The ruling overturned a prior ruling affirming a similar law in Georgia, Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence ruling effectively invalidated these laws in all 14 states. As of 2014, however, the laws remained on the books in 12 of these states, including Texas.

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briefThe right to counsel in criminal proceedings is one of the key rights guaranteed by the Sixth Amendment to the U.S. Constitution, but this right remains in many ways elusive for a significant number of people. A lengthy series of court decisions roughly defines the circumstances in which the government must provide counsel, at its own expense, for indigent defendants. An important ruling regarding the right to counsel in criminal appeals is Anders v. California, 386 U.S. 738 (1967). A court-appointed attorney who concludes that no non-frivolous grounds for appeal exist cannot simply withdraw from representation. The attorney must submit a document, commonly known as an Anders brief, identifying potential grounds for appeal, whether the attorney considers them frivolous or not. The defendant may then continue the appeal pro se, or the court may appoint new counsel. Earlier this year, a Texas appellate court affirmed that Anders briefs are required in certain non-criminal cases. In re N.A., No. 05-15-01220-CV, slip op. (Tex. App.—Dallas, Jan. 25, 2016).

The U.S. Supreme Court first recognized the federal government’s obligation to provide counsel for indigent defendants in the 1930s. Johnson v. Zerbst, 304 U.S. 458 (1938). It did not extend this duty to state felony cases for another 25 years. Gideon v. Wainwright, 372 U.S. 335 (1963). Exactly when an indigent defendant becomes entitled to appointed counsel is still a matter of dispute to this day. The Supreme Court held in Brewer v. Williams, 430 U.S. 387 (1977), that the right to appointed counsel begins “at least…at or after the time that judicial proceedings have been initiated.” Id. at 398. Texas and many other states have expanded the right to appointed counsel to indigent individuals in certain civil proceedings, including some juvenile cases and cases in which the state is seeking the involuntary termination of parental rights. Tex. Fam. Code § 107.013(a)(1).

Anders involved a dispute between a defendant and his appointed counsel over whether to file an appeal. The attorney concluded that there were no non-frivolous grounds for appeal. He notified the court that he would not file an appeal and that the defendant wanted to file one pro se. The notification consisted solely of a letter from the attorney. The defendant’s appeal was not successful, and he sought to reopen the case, claiming denial of the right to counsel. The Supreme Court eventually ruled that the attorney’s letter did not meet the standard of representation required by the Sixth Amendment.

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Thomas Whitcombe [Public domain], via Wikimedia CommonsAsset forfeiture, by which the government seizes and takes title to property allegedly involved in criminal activity, has become a major revenue-generating activity for law enforcement agencies around the country. This has led to widespread criticism of the practice, since critics say that it often fails to protect property owners’ rights. A woman who was convicted of conspiracy to commit fraud and money laundering filed a lawsuit against the federal government in late 2015, claiming that law enforcement fraudulently enhanced the allegations against her in order to make a case for asset forfeiture. Scott v. United States, No. 1:15-cv-00173, pet. to vacate judgment (D. Wyo., Oct. 5, 2015). The court dismissed the suit on procedural grounds, finding it to be an improper collateral attack on the sentence. The case offers an interesting view of how people perceive the practice of asset forfeiture, and of the complexity of post-conviction motions in federal criminal cases.

Federal and state criminal statutes authorize forfeiture in criminal cases or in separate civil actions. See, e.g. 18 U.S.C. § 981 et seq., Tex. Code Crim. P. Art. 59.01 et seq. In many, possibly most, jurisdictions around the country, a court can grant prosecutors’ forfeiture claims even if no defendant is convicted of an actual crime. Property owners are not even entitled to notice of a forfeiture action in many cases, and forfeiture cases are often styled as the government “versus” a description of the asset.

The other notable aspect of the Scott case involves post-conviction challenges to a verdict or sentence. The law surrounding habeas corpus petitions is quite vast and complicated, but the current case specifically involves petitions filed within one year of the conviction, alleging that the sentence is unconstitutional or unlawful, that the sentencing court lacked jurisdiction to impose the sentence, that the sentence exceeds the legal maximum sentence, or that the sentence “is otherwise subject to collateral attack.” 18 U.S.C. § 2255. Before filing a “second or successive” petition under § 2255, a petitioner must request certification from an appellate court that the petition involves new evidence or a new constitutional rule made retroactive by the U.S. Supreme Court. 28 U.S.C. §§ 2255(h), 2244(b)(3).

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By Thomas J. O'Halloran, photographer [Public domain], via Wikimedia CommonsThe U.S. Supreme Court denied the government’s petition for a writ of certiorari in a major securities fraud case last fall. Prosecutors were appealing a federal appellate court ruling that had not only reversed the defendants’ convictions but also dismissed the indictments filed against them. United States v. Newman, 773 F.3d 438 (2d Cir. 2014). The case initially seemed like a big win for federal prosecutors, who had accused two hedge fund portfolio managers of insider trading. The U.S. Attorney’s Office in New York has made prosecution of insider trading a priority. The Second Circuit’s decision, and the Supreme Court’s decision not to review it, affirms an important limitation on liability for alleged insider trading.

The Securities and Exchange Commission (SEC) generally defines the illegal type of “insider trading” as trading securities, particularly corporate stocks, based on “material, nonpublic information about the security.” 17 C.F.R. § 240.10b5-1. It is not a distinct criminal offense under federal law but instead is based on various interpretations of the offense of securities fraud. Laws and regulations relating to insider trading are found in §§ 10(b) and 32 of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78ff; and SEC Rules 10b-5 and 10b5-2, 17 C.F.R. §§ 240.10b-5, 240.10b5-2.

Certain types of trades would seem to fit the SEC’s definition clearly. A corporate officer, for example, who possesses confidential information about the corporation’s financial status, would commit illegal insider trading if they traded their own corporation’s stock based on that information. This breaches the officer’s fiduciary duty to the corporation and is generally considered fraudulent. Trades based on “tips” from insiders, however, present a more complicated picture. The Supreme Court has held that “tippees”—i.e., people who receive insider tips and trade based on that information—are not liable for insider trading unless the tipper received some “personal benefit” for the tip. Dirks v. SEC, 463 U.S. 646, 667 (1983).

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Domenico Fetti [Public domain], via Wikimedia CommonsWhen legislators draft laws prescribing criminal punishments for certain acts, they must be precise when defining a criminal offense. Courts have struck down laws that are not “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Connally v. General Construction Co., 269 U.S. 385, 391 (1926). Even with the best efforts of legislators and their staffs, however, sometimes a law presents multiple interpretations, and the courts must step in to resolve disputes between prosecutors and defendants. The U.S. Supreme Court recently heard oral arguments in a case, Lockhart v. United States, that shows just how contentious statutory interpretation can be.

Courts may apply a variety of rules, sometimes known as “canons,” when considering a portion of a statute that could have more than one interpretation. To give but one example, if a statute lists certain specific items to make a more general point, the ejusdem generis canon would indicate that “the general words should be limited to persons or things similar to those specifically enumerated.” United States v. Turkette, 452 U.S. 576 581 (1981). In a list consisting of “ostriches, emus, kiwis, and other animals,” the term “other animals” might therefore be interpreted as referring specifically to flightless birds, based on the examples that preceded it.

The statute before the Supreme Court in Lockhart deals with some highly unpleasant subject matter, but this is often where the most important legal developments occur. The defendant was charged under a statute that prohibits the possession, receipt, or distribution of child pornography. 18 U.S.C. § 2252. The statute includes a provision requiring a minimum 10-year prison sentence if the defendant has a prior conviction, under federal or state law, “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward…” Id. at § 2252(b)(2). The dispute involved whether “involving a minor or ward” applies only to the third listed offense, “abusive sexual conduct,” or whether it applies to all three.

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By Daniel Schwen (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia CommonsThe U.S. Supreme Court reached an important decision last summer in a challenge to a state constitutional amendment barring certain individuals from obtaining bail. The decision did not receive much media attention because the court simply declined to hear the case. This allowed the appellate court ruling, which struck down the amendment, to stand. Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014). The constitutional amendment in question was from Arizona, and therefore it had no direct impact on Texas. It raised important issues, however, regarding bail and due process that apply nationwide. The Supreme Court’s denial of certiorari drew a written dissent from three of the court’s conservative justices, Justices Alito, Scalia, and Thomas. County of Maricopa v. Lopez-Valenzuela, 575 U.S. ___, 135 S.Ct. 2046 (2015).

The amendment to Arizona’s constitution, Proposition 100, prohibited “granting undocumented immigrants arrested for a wide range of felony offenses any form of bail or pretrial release.” Lopez-Valenzuela, 770 F.3d at 775. Courts are given broad discretion in determining whether, and in what amount, to grant bail. The Eighth Amendment to the U.S. Constitution prohibits “excessive bail,” but it does not require courts to grant bail in all cases. Bail itself was not the issue in this case, but rather the limitation of bail to a specific group of people based on their actual or perceived national origin.

The Fifth and Fourteenth Amendments state that a person may not “be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V; see also U.S. Const. amend. XIV, § 1. While the Fifth Amendment was generally understood to apply only to the federal government, the Fourteenth Amendment expressly extended this protection of individual rights to the states.

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Mikerussell at en.wikipedia [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsA man who is seeking release from prison, after serving nearly 30 years of a life sentence for a drug conviction, has sparked a discussion about drug laws and the punishments they impose. What makes this story particularly notable is that the conduct that led to his conviction occurred when he was a juvenile under the laws of Michigan, where he lived and is now incarcerated. A state law in effect at the time mandated life imprisonment for certain drug offenses. The state has since substantially reformed that law, and this individual is reportedly the only person still serving a life sentence because of it. Despite that, prosecutors have opposed his efforts to seek a reduction in his sentence, and a state appellate court has ruled in their favor.

According to media reports on the case, law enforcement officers recruited the defendant as a confidential informant when he was only 14 years old. He reportedly helped bring down several major drug dealers and a group of corrupt Detroit police officers. He eventually became a drug dealer in his own right, though, and he was arrested in 1987 at the age of 17.

Prosecutors charged the defendant with possession with intent to deliver 650 grams or more of cocaine. At that time, a Michigan law—known as the “650-Lifer Law”—imposed a mandatory life sentence, with the possibility of parole, for the possession of at least 650 grams, equal to about 1.43 pounds, of cocaine. The defendant’s service as a police informant was inadmissible at trial, and the judge characterized him as “worse than a mass murderer.” People v. Wershe, 166 Mich. App. 602, 604 (1988). He began serving a life sentence in 1988, after he had turned 18 years old. Since then, most of the people he helped the police send to prison for various violent crimes have been released.

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flosca [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe Texas Court of Criminal Appeals recently granted a petition for habeas corpus relief in one of the most infamous Texas criminal cases of the past few decades. Ex parte Keller, No. WR-36,684-02, opinion (Tex. Crim. App., May 20, 2015). The petitioner and her husband owned and operated a daycare center in Austin, Texas, until they were caught up in what has come to be known as the “Satanic ritual abuse” panic of the 1980s. They spent 21 years in jail for child abuse—based on highly questionable evidence—before the state released them in late 2013. The habeas corpus petition asserted that the conviction was based on false testimony from the state’s expert witness and that the petitioner was innocent of any criminal offense. The court granted the petition on the false testimony claim but rejected the “actual innocence” claim. This decision highlights the bizarre legal view of “innocence” once a person has been convicted of a crime.

In our criminal justice system, “guilt” and “innocence” have very specific meanings that non-lawyers may not always understand. At trial, the prosecution has the burden of proving guilt beyond a reasonable doubt. If the finder of fact, which could be the judge or a jury, finds that the state has met this burden, it enters a verdict of “guilty.” Otherwise, it enters a verdict of “not guilty.”

A “not guilty” verdict is not the same as a finding of “innocence.” To most prosecutors and law enforcement officials, a “not guilty” verdict only means that the prosecutor failed to convince the jury of a person’s guilt, not that the person is actually innocent of the offense. The state tends to apply a much broader definition of “guilty,” though—often taking a “guilty” verdict as proof that a person committed the offense, not merely that the state met its burden of proof. “Actual innocence” thus becomes just one possible argument a defendant could raise on appeal or in a habeas petition, which might not even provide sufficient grounds, by itself, to reverse a conviction. See Herrera v. Collins, 506 U.S. 390, 400 (1993).

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