Sunday, March 30, 2014

Will the Department of Justice Begin to Limit Relevant Conduct?

by Derek Gilna

Much has been written about the two-level decrease for drug offenses that will take effect in November and the proposed two-level decrease for white-collar offenders, and rightfully so.  These are changes of monumental significance, especially if the U.S.  Sentencing Commission makes them retroactive, which I fully expect them to do, based upon what was done with the crack law.
Hopefully,  the positive impact, will be even greater if assistant U.S. Attorneys and U.S. Probation officials around the country cease asking district court judges to use “relevant conduct” to increase sentences.
“Relevant conduct” permits a district judge to enhance a sentence based solely on information presented by informants, cooperating witnesses, and may  (and generally does) include normally objectionable hearsay.  Although the Apprendi and Alleyne cases have helped limit the damage of “relevant conduct,”, a defendant can be at real risk, especially if he elects to testify in his own behalf in an attempt to rebut prosecution ”evidence.”
In attempting to set aside a sentence based upon “relevant conduct,” attacking the veracity of the evidence used to obtain the enhancement could be a way to prove “actual innocence,”  a possible gateway back into court, an evidentiary hearing, and perhaps a reduced sentence. If the “evidence” used by the judge to justify enhancing can be successfully attacked, the sentence might end up being reduced.
We can only hope that the DOJ does its part in helping reduce the prison population by applying common sense prosecution strategy to match the reality that correctional expenses are too high, t prison sentences too long, and the prisoner population too high.

Wednesday, March 26, 2014

Exonerations of Wrongfully Convicted Rising

Texas Remains Leader in Exonerations of Wrongfully Convicted

By Derek Gilna

            A new report by a national prisoner-rights organization says that once again the state of Texas led the nation in 2013 in exonerations, with 13 cases, and Illinois and New York were not far behind with 9 and 8, respectively.   Although this is the highest figure in 25 years according to available data, it still represents only the known or acknowledged cases where defendants were wrongfully convicted.
            This dubious distinction comes into sharper focus, when you consider that over 1 million criminal cases are processed in Texas every year, and shows there is still much to be done, a fact acknowledged by Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association.
            Exoneration figures have been tracked for the past several years by the authors of the new report, the National Registry of Exonerations, a program formally launched in 2012 by two U.S. law schools, the University of Michigan and Northwestern Law Schools.  The group’s most recent study shows that nationwide 85 of the wrongfully-convicted were cleared and released in the past year.  According to the same report, the figure has steadily increased in the past several years, and totals 1309 since records  began to be compiled in 1989.   Sadly, the average period of wrongful incarceration in those cases averaged 12 years.
            According to the Registry, in the past 25 years over 60% of wrongful convictions were as a result of official misconduct, either by the police or prosecutor, that 17% of those exonerations were of people who had pleaded guilty, rather than face the uncertainty of trial and a long sentence.  The study also claimed that most confessions occurred as a result of abusive or coercive police interrogations.
            The editor of the Registry and co-author of the report, Samuel Gross, said, “There are many false convictions that we don’t know about.  The exonerations we know about are only the tip of the iceberg.”
            Rebecca Bernhardt, policy director of the Texas Defender Service, agreed, but also noted that there was a positive trend in that an increasing number of exonerations occurred in cases other than murder and sexual assault, where DNA was not a factor.  She also commented on the necessity of competent legal counsel in all criminal cases, saying that “inadequate legal defense” was a factor in four the 13 exonerations highlighted in the report: “Every time the court doesn’t give you the resources you need for investigations, you lose the tools necessary to prove your client either wasn’t guilty or deserves mercy.”
            State Sen. Rodney Ellis of Texas said that exonerations were a “shameful category” for Texas to lead the nation.  “Unfortunately, in everyday Texas, quality of justice is too often contingent on your wealth and the attorney you can afford,”  he said.  He might as well have been speaking for every defendant in the entire country.
            One positive trend is that many district attorneys and states attorneys have created internal departments to actively review previous convictions in response to allegations of wrongful convictions.  We can only hope that this trend continues to accelerate.

Friday, March 21, 2014

White Collar Offenders To Get Their Due

White Collar Prisoner Relief on Immediate Horizon

By Derek Gilna

            Although relief for drug offenses has gotten all of the headlines in recent weeks, what about relief for white collar offenders?  Although it could be argued that all prisoners seeking relief should ask for and receive a two-level reduction, it appears that the U.S. Sentencing Commission is now on the verge of making that official.
            Empowered by their success in locking up tens of thousands of non-violent drug offenders for long periods of time away from their families, often based upon hearsay and perjured testimony, prosecutors then trained their weapons on white-collar offenders, such as Jeffrey Skilling to show that they were evenhanded in wielding the sledgehammer of prosecutorial power.  However, unlike the often penniless drug user suddenly converted by ambitious prosecutors into the role of major drug dealer to justify draconian sentences, Skilling had sufficient money to defend himself, and with numerous appeals and post-judgment petitions he has drawn blood. 
            After a series of high-profile appeals that successfully attacked the length of his sentence, he entered into an agreement last June with the government to receive a reduced sentence of 14 years if he stopped filing (and winning) more appeals. Currently at FPC Montgomery, he will be released in 2019.
           As we speak, the Sentencing Commission is holding hearings on a formal, two-level reduction for white collar crimes, with a standard for realistically judging defendant’s actual culpability.  The move has been applauded by many federal judges and the American Bar Association, who have denounced the artificial guidelines sentences based upon often illusory “loss” figures.  Sound familiar?
            There is no question that yet another corner has been turned in the fight against unreasonable and unrealistic sentences, either from rising public consciousness of the problem, or from lack of funding for the federal criminal justice colossus.  The real question that must ultimately be answered by that system is how long a sentence is rational to deter future crime without destroying more lives and families than the alleged crime ever did.

Friday, March 14, 2014

Sentencing Commission Developments

New Sentencing Commission Ruling the One We Were Waiting For

by Derek Gilna

The U.S. Sentencing Commission, which we all know is the key player in sentencing relief reform, has published what can only be termed an historic ruling making the two-point reduction for non-violent offenders a reality, effectively reducing 20% from sentences.
After an appropriate period for hearings and review,  the changes should be effective by November of 2014.  For those of us that have pressed for these changes for almost a decade, it can’t come soon enough.
For those of you keeping score, this relief is in no way dependent upon Congressional action.  Congress has its own sentence reform legislation slowly making its way through the legislative process,
This development does not come as a complete surprise, after the endorsement of a reduction by Attorney General Holder and the lack of organized opposition to sentence reductions, except from prison guards unions.
What’s unknown at this time is the question of retroactivity, but if recent past history is any indicator,  there will be retroactivity.  Of course, it will be slowly implemented, as the Justice Department and the BOP try to avoid the appearance of a large-scale prisoner release.  It is estimated that up to 10,000 current prisoners in the federal system will be positively affected, not counting those in the pipeline who have yet to be sentenced.
A quick aside: there can be no question that federal judges, although presumed by the public to have unlimited power, are in fact highly circumscribed in what they can rule.  Congratulations to those judges, such as the ones in the 6th Circuit in the initial Blewett decision, whose courage have helped bring about a change in public perception of the propriety of federal drug sentencing policy and helped move this process along.

Judges read newspapers also, and after this announcement should be much more receptive to post-conviction motions to reduce sentences than they have been.  If you have been sitting on the fence, it is time to reconsider your options for judicial relief.

Monday, March 10, 2014

Supreme Court Ruling Narrows Scope of Gun Enhancements

by Derek Gilna

A recent Supreme Court ruling in Rosemond v. United States has seriously limited the impact of the “Aiding and Abetting” aspect of 18 USC 924(c), forcing prosecutors to prove that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.
The key aspect is the “advance knowledge” aspect, which must be established now by prosecutors to prevail on a gun enhancement.  Rosemond’s conviction was reversed and remanded because the district court judge failed to instruct the jury as to the “advance knowledge” requirement.
Of course, prosecutors know that 924(c) brings with it a 5-year mandatory minimum sentence, so the importance of this development can not be overemphasized.  Too often, trial judges carelessly tie the hands of defense attorneys with broadly-worded instructions that do not emphasize that all of the elements of a 924(c) charge must be proven to convict.
The Rosemond case concerned a defendant who claimed that he was only involved in a marijuana sale, and had no advance knowledge that a gun would come into play.  Ironically, of the five individuals involved in the crime, only Rosemond was charged, the other four receiving immunity for their testimony. 
The  justices appear to disagree on whether the decision is one of procedure or substance, with Justices Kagan and Alito sparring over the concepts of “motive” and “intent,”  opening the door to an argument for retroactivity, because the operative issue appears to be the “mens rea,” or criminal intent of the defendant.  Like the Alleyne case, however, this will be a subject of further litigation.  Hopefully, this issue will have impact in post-conviction motions, and bring relief to many individuals.

Sunday, March 2, 2014

Supreme Court Hears Argument on Case Questioning Court’s “Loss” Calculation

By Derek Gilna

            Must as drug defendants have often decried the un-proven drug quantities ascribed to them in Pre- Sentence Investigations (PSR’s), which are then used to add years, if not decades to their sentences, white-collar defendants have been equally critical of phantom “loss” amounts which, similar to “ghost dope,”  are used to enhance their sentences.  Although there have been some favorable decisions rendered in some of the federal circuits, the case law is unsettled and by no means uniform in its application.  However, the Supreme Court has begun hearing oral arguments on a case filed last Fall that might prove to be useful for white-collar prisoners seeking relief.
            In Robers v. United States, a case out the Seventh Circuit, the defendant pleaded guilty to mortgage fraud, without stipulating to a loss amount.  He reserved appeal, claiming that he the loss amounts were excessive, because he was entitled to credit for not only the funds the aggrieved banks had recovered for resale of the homes fraudulently purchased by him, but also for the fair market value of those houses.
            The Seventh Circuit, apparently somewhat troubled by the loss amounts, vacated the judgment in part, and removing bank attorney’s fees and other questionable expenses tacked onto defendant’s loss amount.  Both parties appealed, and the question now before the court is whether the defendant is entitled for credit for fair market value for the houses he returned to the banks.  The case is noteworthy because appeals courts rarely disturb district courts’ loss findings in the absence of clearly obvious arithmetic errors.
The case should be decided sometime this summer.
            The other, broader trend that bears watching is the Supreme Court’s acceptance of more cases that more narrowly define the seemingly unrestricted methods by which the criminal justice system victimizes the accused, although real progress will probably have to wait until Congress acts.  Until then, we must rely upon petitions to the court for relief under the applicable statutes and case law, as well as also petitions to the executive branch under the appropriate clemency remedies that exist.