United States v. Roberts, 119 F.3d 1006 (1st Cir. 1997) (Judge Keeton)
The prosecutor in this case was really cute. With brazenly insincere coquettishness, he kept reminding the jury of the very things that it should not consider when it retired to reach a verdict. He played with the defendant's Fifth Amendment rights by repeatedly commenting on the defendant's failure to testify - only to cloak those comments with warnings of their forbidden nature. He violated the rule against telling the jury that the defendant has the burden of proving his innocence; (e.g. when a defendant does "go forward" to offer evidence, "the defendant has the same responsibility [as the government] and that is to present a compelling case." (Id., at 1015)). He toyed with the truth by repeatedly asking rhetorical questions that were unsupported by any evidence in the record. For example, despite the Court's assessment that the record "contains no evidence of [the defendant's] involvement in any gang", the prosecutor took pains to remind the jury that "whether [the defendant] is a member of a motorcycle gang or whatever, has nothing to do with the facts of this case. All right?" (Id., at 1011).
After the defendant was convicted of conspiracy to distribute anabolic steroids, he appealed. The First Circuit concluded that the offending remarks "were not obscure" and that "those instances of prosecutorial misconduct, in combination, undermined the fundamental fairness of the trial and require us, in the interest of justice, to wipe the slate clean." (Id., at 1016). Thus it vacated the conviction.
It also rejected as pure malarkey the prosecutor's claim that he was attempting to be fair. "Protestations before this Court that the prosecutor was merely taking care to demonstrate an intention to be fair ring hollow. Being fair in fact is commendable. But parading an appearance of fairness by calling attention to things not to be considered by the jury is a dubious tactic in any setting. It is certainly not permissible when the way it is carried through - by pointing out the prohibited comments in order to warn the jury of their forbidden nature - tends to implant in the minds of the jurors the very things forbidden, by saying they are things the jury must think about in order to remember not to think about them."
In these three cases the Second and Third
Circuits rejected challenges to the so-called "Megan's Laws" in the States
of Connecticut, New Jersey and New York. Under those laws, convicted
sex offenders are required to register with local law enforcement
authorities; and in most cases law enforcement officials are then required
to give varying degrees of public notification of the identity and address
of the offenders.
Since New Jersey adopted its version of
Megan's Law in 1994, forty-nine States have adopted sex offender registration
laws and thirty-two states maintain some form of community notification
program. (E.B., id, at 1081). Even the Federal Government
quickly jumped on the bandwagon. Ever trying to take credit for all things
good and bountiful, Congress quickly passed a statute requiring a state
program of registration and notification as a condition of receiving certain
Federal funds.
In the short time since the passage of those laws, defendants whose crimes were committed before the enactment of those statutes have raised numerous challenges to the enforcement of those laws on a number of grounds, including specifically claims that such laws violate the Due Process, Ex Post Facto and Double Jeopardy Clauses of the Constitution.
In each of these three cases, the petitioners brought such challenges. While all three cases touched upon numerous issues, the critical question addressed in each was whether the "notification" requirements of those statutes constitute "punishment" for purposes of the Ex Post Facto Clause, in which event they could not be applied to probationers who committed crimes before the adoption of such notification requirements. On that simple issue, the courts struggled and strained to arrive at the conclusion that the notification provisions were not "punishment" and that, therefore, they did not offend the Ex Post Facto Clause of the Constitution. The reasoning of the courts was often so bereft of logic and common sense that they inescapably raise the question whether the decisions were pre-ordained and determined by a sense of some societal need for such statutes rather than by a review of the applicable jurisprudence.
For example, the Second Circuit, in the Doe case, briefly addressed the issue of whether there was any clearly established data to support the conclusion that sex offenders were so prone to recidivism that they warranted being singled out with the special registration and notification procedures spelled out in the different Megan's Laws. That Court acknowledged that while "other studies have reported that sex offenders as a category do not have a higher rate of recidivism than other categories of offenders", there is "the perception supported by some data, that such offenders have a greater probability of recidivism than other offenders" (emphasis added); and on that basis it "accept[ed] the validity [of such statistics for the purposes of] this appeal."
Similarly, in addressing whether the State legislatures intended to penalize and punish sex offenders, all three courts essentially dismissed that issue as irrelevant. For example, the appellants in the Doe case cited Judge Chin's conclusion in Doe v. Pataki, 940 F.Supp. 603 (S.D.N.Y. 1996) that the notification provisions were intended to constitute "punishment"; and they cited numerous statements made by State legislators when the New York version of Megan's Law was enacted as proof that the statute was intended to impose "punishment." In response, the Court curtly stated: "Although we agree with the District Court that the comments of some legislators reveal their animosity toward, and even a desire to punish, sex offenders, . . . we decline to rely on these isolated statements to characterize the legislature's intent as punitive."
Judge Becker came to a far different conclusion in his lonely, but more realistic, dissent in the E.B. case. For example, his candid assessment of the justification of the Megan's Laws was as follows: "The societal pressure for legislation designed to prevent terrible tragedies such as befell Megan Kanka and her parents is hydraulic. The pressure is understandable, for Americans are a fundamentally decent people, and legislation such as Megan's Law is thus the product of good intentions. Unfortunately, however, earthly life is fraught with so much uncertainty that we cannot legislate against the vagaries of chance. In their desire to make everything right, legislators sometimes overlook this basic fact, and enact laws that not only fail to achieve their laudatory ends, but also cause serious harm. This appeal involves a textbook example of that phenomenon." (Id., at 1112).
He continued that "the history of notification, the design of notification provisions in Megan's Law, and the effects of notification provide sufficient proof to show an objective punitive intent, notwithstanding the subjective intent to the contrary." (E.B., id., at 1113). He disagreed with the majority's "amorphous inquiry", stating that "it incorrectly frames the historical analysis, first by relying on immaterial precedent, and then by applying insufficiently comparable historical analogues to the notification provisions of Megan's Law. A better reasoned analysis likens the notification provisions of Megan's Law to the shaming punishments of colonial America - the scarlet letter of literary fame - leaving no doubt that the objective purpose of those provisions is punitive." (Id., at 1114).
Judge Becker also rejected the majority's reasoning that the notification provisions were akin to wanted posters and quarantine notices that are generally accepted. While he agreed that such notices did alert the community to a risk, he observed that "the shaming punishments also alerted the community to a risk, the risk that the offender would re-offend." (Id., at 1117). That objective was designed "to lead to public opprobium" (id., at 1119); and by examining the actual effects of such public opprobium he showed why the distinction was so important.
"[T]he effects of notification . . . [are] borne by the offender in all aspects of his life. At worst, the offender is literally cut off from any interaction with the wider community. He is unable to find work or a home, cannot socialize, and is subject to violence or at least the constant threat of violence. . . . The effects of notification permeate his entire existence. . . . ‘[T]he punitive effects are dominant and inescapable'. . . . ‘Notification statutes have resulted in banishment of sex offenders both literally and psychologically'." (Id., at 1125). Furthermore, Judge Becker observed, "notification [in these cases] is a judicially endorsedpronouncement that the registrant presents a danger to the community. In that sense, notification is closer to the shaming punishments than to warning or wanted posters, or quarantine notices." (Id., at 1117)
Finally, Judge Becker concluded with this
warning: "Basic constitutional rights fundamental to ordered liberty, like
the freedom of speech and the right to be free from the retroactive application
of the laws, impose on each of us certain burdens. We will remain a free
people only so long as we accept those burdens, even in the face of the
very safety of our children." (Id., at 1128). If we don't heed
that warning, what will be next - and where does it end? Why not
stigmatize drug addicts? Or persons who have undergone tax audits?
Or maybe people who occasionally get lascivious thoughts? And maybe
even people who just plain disagree?
[Editor's Note:
Subsequent to the publication of this issue, the Ninth Circuit addressed
and generally rejected a series of constitutional challenges to the State
of Washington's version of the Megan's Laws. See Russell
v. Gregoire, 124 F.3d 1079 (9th Cir. 1997)].
The issue in this case was whether a trial judge violated a defendant's Sixth Amendment rights to a fair trial by dismissing a juror when it knew that the juror in question was the sole juror holding out for an acquittal. The juror had become distraught when all the other jurors ganged up on her and attempted to coerce her into joining them in voting for a conviction. The trial court concluded that she was "an emotional wreck"; and that constituted good cause for dismissing her, even though she remained willing to continue with the deliberations.
The majority concluded that the juror's dismissal was proper. It was "well supported" by the record; it did not "raise a red flag"; and, in any event, "evidence that a juror was holding out does not alter the trial court's discretion in removing jurors." (Id., at 1427). Judge Nelson strongly disagreed, reasoning that "the question of whether or not the trial court's action was justified by good cause cannot be answered until we explore the impact such dismissal had upon Perez's Sixth Amendment rights." From that perspective, the Judge concluded that the dismissal of the juror "had a substantial impact on those rights." (Id., at 1428).
Judge Nelson questioned whether there had been good cause for the dismissal; and in any event concluded that decision trial court's decision sent "a strong message to the remaining 11 jurors that the trial court endorsed their proclivity for conviction and implicitly encouraged them to ‘hold their position'. . . . This kind of reverse coercion interferes with the jury's independent deliberations and threatens the defendant's right to a fair trial. . . . To find good cause for dismissal here opens the door for removing any juror who is upset to find out that she is the lone holdout but remains willing to participate in a discussion of the defendant's guilt." (Id., at 1429).
The defendant in this case was charged with possession of crack cocaine with intent to distribute. Prior to the commencement of trial, his counsel moved to bar the admission of evidence relating to five sales of cocaine to an undercover police officer - each for $100. The district court (Judge Mihm) granted the motion under Rule 403 of the Fed.R.Evid. because (a) there was both a lack of similarity and a temporal remoteness between the present offense and the cocaine sales of five years earlier; and (b) the evidence would be unduly prejudicial. The judge did however reserve the right to revisit the issue "if the defendant takes the stand and testifies or if there is other defense evidence presented that the government believes opens the door." (Id., at 73).
In their initial addresses to the jury, both the Government and defense counsel mentioned that the defendant had earlier characterized himself "as an old-time burglar, not a drug dealer." Ultimately, the Government moved to re-argue the lower court's ruling that barred the admission of the evidence about the prior cocaine sales on the grounds that the defense had "opened the door." This time the court agreed and reversed its earlier ruling. The defendant was, of course convicted; and he appealed, arguing that, after his motion in limine was granted, he had prepared his defense knowing that, unless he took the stand or in some way raised the issue, the jury would not learn of his prior drug activities. He also argued that his counsel would have been more attentive in attempting to distinguish the prior drug sales from the instant crime. Thus, he claimed that he "got burned when the court changed the rules at the end of the game."
The Seventh Circuit rejected the appeal. It acknowledged that it had to take into account the fact that the trial court had reached the opposite result at an earlier stage of the trial; but it concluded that "a district court may change its view when ‘the landscape' has changed." (Id., at 75). It continued that "although Mr. Allison's trial certainly was not a perfect one, it was not a fundamentally unfair one." (Id., at 76). Then, commenting on defense counsel's slip in mentioning during his opening statement that the defendant was a burglar rather than a drug dealer, the Court continued: " Although the situation did deprive the defense counsel the opportunity to anticipate the government's use of the earlier drug sales, it is significant that both sides shared this burden. Neither side could raise this evidence during its opening statement."
Both of these cases visit an issue that is destined to become more and more significant as growing masses of felons complete the prison portion of their sentences and are required to serve lengthy terms of supervised release: namely, the perfunctory use of generalized conditions of supervised release for all probationers. What is particularly significant about these cases is that they show what defense counsel should do to prevent their clients from unwittingly being caught up in a web of regulations and administrative procedures that often have little, if anything, to do with the defendant's crime or the twin goals of supervised release: the rehabilitation of the defendant and the protection of the public.
Since we have first begun reporting on this problem, many attorneys have contacted us and protested that it is "inappropriate" at sentencing to raise the issue of what conditions of supervised release will apply to a defendant since those conditions will not become operative until the defendant has been released from prison. By that time, they also acknowledge, most defendants simply don't have any money to afford counsel; so there is nothing they can do. We believe that such a position is incorrect.
In the Morey case, the defendant, who was convicted of theft of mail by a postal employee, protested the imposition of a special condition that obligated him to participate "as instructed by the probation officer" in a drug treatment program - after he had completed a 500 hour drug treatment program while in prison. The Court held that since the defendant had failed to object to that condition at sentencing, it was limited to a "plain error review"; and on that basis it found no plain error. At the very minimum, it would appear to us that counsel should object to such a condition at sentencing on the grounds that such continuing drug counseling may no longer be necessary once the defendant has successfully completed his 500 hour drug treatment program while in prison. At least such an objection would preserve the defendant's right to bring the matter before the court after his release from prison without being held to the onerous "plain error" standard of proof.
In the Benson case, the defendant objected to a number of conditions, including a limitation on his ability to travel outside his judicial district without the unfettered approval of his probation officer. The Court rejected the petitioner's objections, noting in part that the defendant had signed a certificate of parole in which he agreed to abide by the disputed conditions. The defendant further argued that the certificate of parole was invalid because he had signed it "under duress." Without ever addressing that issue, the Court ruled that the defendant was precluded from the relief that he sought. What is significant, however, is that much of the Probation Department's power over probationers derives not from what the court pronounces at sentencing, but rather from contractual agreements that the defendants are forced to sign at various points throughout their prison life. While there are no statutory provisions that require defendants to agree to conditions of supervised release that were never imposed by the court at sentencing, it has become standard practice to have all defendants sign such documents - even if under duress.
For example, most defendants are asked to sign their Judgment and Commitment Orders at the time they arrive at every prison to which they are sent. The problem is that printed on the reverse of those Orders is an acknowledgment that the defendant will voluntarily abide by all of the 13 standard conditions specified in U.S.S.G. § 5B1.4, whether of not the sentencing court imposed those conditions. If the defendant refuses to sign that document he is threatened with all kinds of punishment despite the fact that there is no statute that requires the defendant to "voluntarily" accept such conditions. The same procedure is repeated at any half-way house to which the defendant is sent; and the threat in that case is that unless the defendant signs the proffered document, he will be denied any half-way house time - which may well be a preferable alternative to waiving all future objections to the 13 conditions of supervised release.
At a minimum we recommend that counsel should consider advising their clients of the dangers of signing any documents that have not been approved by counsel; as well as advising their clients that there are no statutes that obligate them to waive their rights by "voluntarily" agreeing to conditions of supervised release that were never imposed by the sentencing court.
As explained by the Court, "this is one of those cases in which the district court struggles against the constraints of the guidelines in order to impose what he feels is a proper sentence, only to be reined in by the court of appeals." (Id., at 228). It is also a case that shows the rigid absurdity of some of the "three-strikes-and you're-out" laws.
Three times previously the defendant was sentenced in the instant case; and each time his sentence was appealed. At issue was whether one of the defendant's prior convictions for an aggravated assault crime should be counted in determining whether the defendant was a career offender under U.S.S.G. § 4B1.1(A). The defendant had previously pled guilty to an aggravated assault charge in a different case; and he received a sentence of probation. If that conviction qualified as a prior conviction for purposes of § 4B1.1(A), his sentence in the instant case would be 35 years. If it did not count, his proper sentence under the Guidelines would be 15 years.
The district court (Judge Shoob) felt that
the defendant was not guilty of the aggravated assault crime, but had pleaded
guilty "because the Fulton County system made it easier to plead guilty
than to protest his innocence." Judge Shoob's skepticism was based
on his familiarity with the Fulton County "assembly- line type of justice"
whereby a court "would dispose of 20 to 30 felony cases in about ten minutes
with pleas and so forth." He referred to Fulton County's " ‘practice
of charging the more serious offenses available for plea bargaining purposes
with the summary disposition of the less serious cases by sentences of
probation', with apparent disregard for whether the defendant was guilty
of any of the charges." (Id., at 231).
In one of the earlier appeals, the Eleventh
Circuit had ruled that it was error for the district court to nullify a
prior conviction on the grounds that the defendant had probably not been
guilty of that crime. "Collateral attacks on prior convictions are
allowed in federal sentencing proceedings in one narrow circumstance only:
when the conviction was obtained in violation of the defendant's right
to counsel." (Id., at 231). However, one of the dissenting
judges had suggested that the district court could have granted a downward
departure under U.S.S.G. § 4A1.3, which allows for a departure in
the Guidelines' sentence over-represents a defendant's criminal history."
Judge Shoob promptly followed that suggestion and held that the career offender designation "significantly over-represents the seriousness of the defendant's criminal history." Once again, the Eleventh Circuit disagreed. It emphatically ruled that § 4A1.3 "is concerned with the pattern or timing of prior convictions, not with doubts about their validity. . . . A sentencing judge may not use the guideline to circumvent the rule prohibiting a collateral attack on a prior conviction in a sentencing proceeding." Thus, it directed Judge Shoob to sentence the defendant to 35 years in prison, notwithstanding his belief that the aggravated assault conviction was a sham.
A frequent and valid criticism of the criminal justice system is that the courts often appear to shift positions from case to case based upon distinctions that are not real differences. This is such a case. Recently, the Eleventh Circuit ruled, in U.S. v. Brown, 117 F.3d 471 (11th Cir. 1997), that a conviction was invalid because it was based on a guilty plea that was constitutionally invalid since it was not knowingly and voluntarily made. In Brown, the defendant was convicted of a money structuring offense, before the Supreme Court's decision in Ratzlaf v. United States, 510 U.S. 135 (1994). Essentially, the Supreme Court ruled that the Government must prove that "the defendant acted with knowledge that his conduct was unlawful" to sustain a conviction for money structuring. (Ratzlaf, id. at 137).
At his plea colloquy, the defendant in Brown protested his innocence, stating that he didn't feel that he was guilty of any crime at the time the acts were committed, but that he pled guilty because counsel had since explained to him that under then-prevailing Eleventh Circuit law the Government did not have to prove that he knew his crime was illegal. Even defense counsel explained to the court: "He didn't think he did anything wrong, but now his eyes have been opened." Citing Brady v. U.S., 397 U.S. 742 (1970), the district court refused to vacate the conviction since that case held that "a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise." (Brady, id., at 757).
On appeal, the Eleventh Circuit observed that: "As it later turned out, the eyes that needed opening were those of this Court." It then concluded that the bedrock constitutional principles governing the entry of a valid guilty plea "require that a defendant be informed about the critical elements of the charged offense." (Brown, id., at 476). It then identified two ways in which a defendant's guilty plea may be involuntary in a constitutional sense. "A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving, . . . or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." (Citing Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976)).
Under those standards, the Court concluded that the defendant had been persuaded to plead guilty only after his counsel had showed him a copy of some now-overruled decisions that had held that the prosecution need not prove the defendant was aware of the illegality of the money structuring. The Court concluded that "[b]ecause the misinformation brown was given about one of the critical elements of the charge against him caused him to plead guilty, it necessarily follows that his guilty plea was not voluntary in a constitutional sense." (Id., at 477).
Now, one month later, the same Eleventh Circuit takes a different position in the DePace case. While that case did not involve money structuring, the defendants raised the same issue: namely, that their convictions for drug dealing and illegal firearms possession were invalid because their guilty pleas were not knowing and intelligent since the district court had failed to inform them of the nature of the charge as required by Rule 11(c) of the Fed.R.Crim.P. In responding to that claim, not once did the Eleventh Circuit refer to its decision in, or the reasoning of, the Brown case.
The defendants never actually possessed any handguns; but they were charged with aiding and abetting their co-defendants who had used handguns in an attempted theft of marijuana from an undercover DEA Agent. The Court acknowledged that "Neither the indictment, the essential elements [of their crime as explained by the district court], nor the Plea Agreement . . . explained the aiding and abetting theory that linked [the defendants] to the firearms carried and used by their co-defendants." (Id., at 236). The Court excused that failure to explain on the grounds that the failure of the district court to "explicitly discuss the aiding and abetting theory of liability [was unnecessary] because in this case the aiding and abetting theory is not an essential element of the offense requiring inclusion in the indictment." (Id., at 236-37).
In support of that proposition, the Court explained that while there are no "simple or mechanical rule[s]" to determine whether the district court comply with Rule 11's mandate that the defendants understand "the nature of the charges against them", the inquiry varies from case to case depending on "the relative difficulty of comprehension of the charges and of the defendant's sophistication and intelligence." (Id., at 237).
After the clear language of Brown, this decision is all the more perplexing because the Court admitted that: "It is not difficult to understand that . . . a lay person might not understand why [the defendant] would be guilty of aiding and abetting the crime of ‘using and carrying' a firearm [when he] did not possess the gun at all." (Id., at 237-38). So, just what is the rule? Does the issue of whether a defendant has a complete understanding of the nature of the charge against him depend on which panel of a court hears the case?
This is another of the growing number of cases that are addressing the issue of the use of polygraph evidence in criminal trials. Citing the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and the Ninth Circuit's decision in U.S. v. Cordoba, 104 F.3d 225 (9th Cir. 1997), the Court concluded that there is no longer a per se rule that bars the use of polygraph evidence; but that the courts must conduct a particularized factual inquiry in each case.
The defendants in this case were charged with various offenses involving the possession of various firearms and explosives; and the evidence was based largely on the testimony of a Government informant who reported that he had seen those weapons in the garage of one of the defendants. Later, the informant was subjected to a polygraph examination by the FBI; and during that examination he dramatically changed his story. To prove that the informant had lied, the defendants sought to introduce the testimony of a polygraph expert who the court acknowledged was "extremely well qualified" in the field of polygraphy.
The Court engaged in a detailed review of the scientific validity of polygraph evidence. It noted that studies have indicated that "on average 98% of the time a polygraph examination correctly identifies when a person is being deceptive." (Id., at 1250). However, it also noted that "experts in the Department of Justice and the Federal Bureau of Investigation do not believe that polygraph test results have reached a general level of acceptance in the relevant scientific community sufficient to be admitted at trial." In the end, the Court concluded that there were so many variables involved that reliance on the results of polygraph evidence was "problematic"; and that the use of polygraph evidence "invades the province of the jury to make credibility determinations." (Id., at 1253).
It also ruled that even if it were to conclude that such evidence was sufficiently reliable under the standards of Rule 702 of the Fed.R.Evid., it would hold that the evidence should still be excluded under Rules 401 and 403 of the Fed.R.Evid. "Any probative value of the evidence is substantially outweighed by its prejudicial impact." (Id., at 1252).
Nevertheless, the Court did rule that the fact that the informant underwent a polygraph examination may be admitted so long as the results of the examination were not disclosed. It concluded that such evidence was relevant and would be helpful to the jury for two reasons. First, the fact that the informant changed his story when told that he would be taking a polygraph examination "suggest that the fear of getting caught in a lie was enough for him to change his account" of his previous testimony. Second, absent evidence of the polygraph examination, the jurors "could be left with the misconception that [the informant] came forward to clarify his representations without prompting from another source."
"[Today], California and Florida
spend more to incarcerate people than to educate their college-age populations.
In California, where the number of prisoners has grown from 19,000 two
decades ago to 150,000 today, the state now faces a crisis . . . . Since
1990 alone, the number of prison and jail guards nationwide has increased
by about 30 percent, to more than 600,000. . . . But a growing number of
criminologists say they are troubled by evidence that the spiraling growth
of prisons is also causing unintended consequences that may actually contribute
to increased crime as well as undermine families and inner- city neighborhoods.
. . . A study of Washington, D.C., issued last month, found that half of
black men there between the ages of 18 and 35 are under the control of
the criminal justice system on any given day, either in prison or jail,
or on probation. . . . In the last 20 years, California has built
21 new prisons but added only one university to what as once hailed as
the world's best university system." The New York Times, September
28, 1997, Week in Review, "Crime Keeps on Falling, but Prisons Keep
on Filling", by Fox Butterfield.