What Happened In Washington
by Derek Gilna
The Supreme
Court (SC) made no news in the past week of interest to prisoners, but developments
in Congress and the DOJ certainly did. Whatever your political affiliation, the
news regarding the abuses in the FISA court process, the Inspector General's
report of multiple DOJ violations of Brady standards, and the former nation's disgraced
top cop going on national television to claim he wasn't responsible, have
exposed to the general public the abuses and lack of accountability inherent in
the federal justice system. It also totally discredited the "keep the
public safe" excuse for inaction. "Rehabilitation,"
rather than "confinement," is now the public's priority.
Congress,
of course, is aware of the many abuses throughout the justice system's bureaucracy
assaults, harassment, graft, and financial mismanagement. The language of the First Step Act (FSA),
highlighted the fact that the federal prison system can't be trusted to protect
its weakest and most vulnerable, treat its sickest, release its oldest, or show
mercy to its terminally ill. Count on "Second Step" and other reforms,
including even parole, being
front-and-center after the holiday
break.
In a case related to the above subject matter,
US v. Cano, out of the 9th Circuit, highlights the problem of pervasive police
and prosecutorial misconduct. In that case, the appellate court reversed the
district court's dismissal of a conviction for a warrantless search of
defendant's cell phone at the border on 4th Amendment grounds, despite the SC
ruling in Riley v. California 8-16-19 .
The case shows the extent to which the government is willing to go to bypass
the 4th amendment if left unchallenged by competent defense counsel.
In the 11th
Circuit, the court recognized that mental disabilities ignored by defense
counsel prior to sentencing required that the matter be remanded for a new
trial for inadequate representation of counsel. Jefferson v. Warden,
17-12160, 10-17-19 . We
have previously here referred to numerous studies that mental health or PTSD
issues can and must be put forward by defense counsel in sentencing
proceedings, lest they be found to have rendered inadequate representation of
counsel. "Neuroscience, PTSD, and Sentencing Mitigation," Grey, Prof
of Law, AZ State University
In the 6th
Circuit, White v Warden, 18-3277, 10-8-19 ,
held that procedural default would not prevent a court's denial of a writ of
habeas corpus and a remand for an evidentiary hearing, to examine the issue of
a conflict of interest by defense counsel. US v. Arrington, (2d Cir. 10-18-19 ), reached this same
conclusion. An 8th Circuit First Step case overruled a denial of relief by the
district court and ruled that defendant had already received a reduced sentence
in 2016, and ordered a 404 rehearing. US 12-11-19 .
