Monday, June 21, 2010

What ever happened to mens rea?

There is an interesting new book that most criminal lawyers, and potential defendants, should read: Harvey Silverglate’s"Three Felonies a Day".

Silverglate is a Boston civil-liberties lawyer and his title refers to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

For example, a man named Bradford Councilman was charged in Massachusetts with violating Federal wiretap laws in 2001. This was because Mr. Councilman worked at a company that was both  an online book-listing service and Internet service provider for the book dealers.  The company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients as part of its ISP role.

The federal wiretap laws, Mr. Silverglate writes, were "written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change." Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering "material support" to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there's liability for anything in an online chain, it would be hard to avoid prosecution.

Recently, a Philadelphia, Pennsylvania man, Bruce Shore was indicted in Kentucky under an obscure Federal statute (43 U.S.C. §223) alleging that he "did utilize a telecommunications device, that is a computer, whether or not communication ensued, without disclosing his identity and with the intent to annoy, abuse, threaten, and harass any person who received the communication."

It turns out that Mr. Shore was an unemployed fellow who e-mailed Senator Jim Bunning of Kentucky after Bunning’s one man obstreperous activities several months ago blocking unemployment extensions for every American.  Mr. Shore’s mistake was signing the e-mail “Brad Shore from Lousiville”.  Forget First Amendment.  Forget writing a Senator to complain of the Senator’s position on important issues.  He was indicted because he changed his name from Bruce to Brad and called his hometown Lousiville instead of Philly to get the Senator’s attention.  Instead, Shore got more attention than he wanted!

Mr. Silverglate is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.

Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.

Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.

In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.

Friday, June 18, 2010

Another SCOTUS punt

Yesterday, The Supreme Court waded cautiously into an issue that surrounds workplaces and offices throughout the country: i.e., whether employers have the right to review workers’ computer, cellphone, and text messages on devices owned by the employers.  The decision represented a preliminary effort to define public employees’ Fourth Amendment rights in the digital age.  The decision was extremely narrow and according to Justice Kennedy, closely tied to the facts.

Kennedy refused to establish far reaching rules concerning privacy expectations of workers using company equipment.  The court admitted its unfamiliarity with many new technical issues and refused to do more than stick its toe into the high tech communication morass. Kennedy stated that “technology may be changing faster than the courts can accommodate”.

Justice Scalia was his usual cantankerous self,  finding fault with the decision calling it “exaggerated and opaque” alleging that the other justices disregarded their duty.

The majority chose to not delve too deeply into a world of technology that they admitted at oral argument was a bit foreign to them.

Monday, June 14, 2010

New Proposed Sentencing Guidelines

The New Federal Sentencing guidelines will give more latitude to Federal judges at sentencing.  Currently, It is not within the purview of the guidelines to consider to consider the offender’s personal history and personal characteristics.

The new rules will also allow for judges to send non-violent drug offenders to drug or alcohol abuse treatment centers instead of prison.

The Commission studying the guidelines received a lot of feedback from all sectors of the Federal criminal justice system highlighting “a great need for alternatives to incarceration” according to William K. Sessions, the Commission’s chairman.

The Commission now seems to be looking at the individual offender away from the assembly line approach

There are lots of practical and technical reasons why the proposed new federal guideline amendments released today by the US Sentencing Commission  (USSC) are quite important and potentially very consequential for the day-to-day work of litigants and judges in the federal sentencing system.

These amendments are really the first set of changes to the US Sentencing Guidelines that fully and formally reflect the import and impact of the Supreme Court's decision in Booker.  It is astounding that it has taken the USSC more than five years to fully deal with Booker as the law of the land, but it is also quite significant and telling that the Commission is now making sure that the guidelines expressly take account of post-Booker realities.

Of even greater importance, virtually all of the Commission-driven proposed amendments are intended to (and are likely to) reduce applicable sentencing ranges and the overall severity of the guidelines.  Through the first 20+ years of guideline sentencing, the vast majority of proposed amendments have called for increases in applicable sentencing ranges and the overall severity of the guidelines.  This set of amendments thus reflects a quite tangible (and perhaps enduring) change in focus and direction of the Commission's on-going guideline-revision work.

Another point also prompts an important practical and technical issue: will the US Sentencing Commission later this year vote to make any of its new guideline-reducing amendments retroactive for the benefit of already-sentenced defendants now in federal prison?

If a guideline amendment reduces sentences and the Commission votes to make that amendment retroactive, the guidelines have a policy statement (U.S.S.G. § 1B1.10) that discusses the scope, limitations, and authority for granting sentence reductions. That policy statement also includes a list of all the guideline amendments that have been made retroactive. A prisoner who wants a sentence reduction based on a retroactive guideline must file a motion under 18 U.S.C. §3582(c)(2). The motion is filed in the federal court where the defendant was sentenced. The court may or may not appoint a lawyer to help the defendant with the motion. The prosecution is given a chance to oppose the defendant’s request for a sentence reduction. Then, the court makes the final decision to grant or deny a sentence reduction. The court does not have to give the defendant a sentence reduction – rather, the court has to consider the guidelines’ purposes of sentencing and any relevant policy statements about the amendment and sentence reductions. For example, the policy statement at § 1B1.10 bans the courts from reducing a sentence unless the Commission has made the amendment that allows for that reduction retroactive. If the court denies the defendant’s motion for a sentence reduction, the defendant may appeal that decision. If the court grants the defendant’s motion, the defendant’s sentence will be adjusted accordingly.

Friday, May 28, 2010

More hysteria

In United States v. Comstock, No. 08-1224, the U. S. Supremes  recently held that the federal government properly has power under the “Necessary and Proper Clause” to enact a civil commitment statute for “mentally ill, sexually dangerous” federal prisoners, maintaining them in custody beyond the expiration of their criminal sentence. This is not good.

The civil commitment statute, 18 U.S.C. § 4248, requires a federal prisoner who has been convicted of a sex crime to remain in federal custody even after the prison sentence expires if the prisoner is deemed to be sexually dangerous to others. This means that a sex offender can potentially remain in federal custody for the rest of his or her life, even if they finished the prison term that was sentenced.

In Comstock, five respondents challenged the U.S. Department of Justice’s efforts to civilly commit them to federal custody. The respondents prison term was about to end and they were about to be released. The government wanted to keep them in custody pursuant to the civil commitment statute.

Civil commitment is even harsher because the prisoners can be deemed sexually dangerous to others for any reason. The reasons do not have to relate to the federal crime that the prisoner committed. The government need only prove these claims by “clear and convincing evidence.”

If this stuff upsets you, join the club.  It’s not often that defense lawyers side with the likes of Scalia and Thomas.  Hysteria creates bad law.  This is one more legal tool for the lynch mob forming against people convicted of any sex crime.

Forget reasonable doubt.  Forget “do the crime, do your time.”  They’re not targeting gang bangers, robbers, drug dealers, murderers, and corporate polluters.  They cite the recidivism rate for sex offenders which is only slightly higher than for other crimes.  This is legislative and judicial vigilantism.

Defense lawyers in mitigation have traditionally put their clients in sex rehab programs/ therapy/Group therapy/ SLAA/etcetera with their eye on getting help for their clients that need it.  The natural byproduct of this strategy is the creation of reports outlining sexual issues.  These reports can now be turned against the client to document and support the government’s attempt at civil commitment.

The natural reaction now of most defense lawyers is to draw back from this strategy: so as not to enable the government to have more ammunition if they choose to file a civil commitment.

Thursday, May 13, 2010

Nasty Cases

There is an hysteria in the land and has been since the “California day care” sex abuse allegations twenty five years ago. The hysteria is fueled by Fox news, sometimes Oprah, sometimes Dr. Phil, and sometimes your local news outlets. People (and many jurors) have become quick to believe in any allegation of an adult abusing a child. The first question they want answered is "why would the child be saying this if it didn't actually occur?" I submit there are many good answers to that question.

Throughout our country people are finding themselves charged with monstrous crimes. There is a well meaning system in place that has gone bad, terribly bad. There is an institution, almost a culture, in place peopled by police, prosecutors, and child advocates whose business it is to get convictions. The most ridiculous of allegations are repeated, pumped up, exaggerated, and supported by this institution to the point that the child sometimes actually believes their original lies because of the institutional grooming.

Local news organizations in small media markets thrive on these cases. They repeat and sensationalize allegations, thereby poisoning the potential jury pool. It doesn't matter that many of the allegations make no sense. It doesn't matter that the allegations are really about the mother and father splitting up. It doesn't matter that the child was caught touching another child in the bathroom and when asked has anyone ever done it to you, the child realizes that blaming someone else will get the child out of their predicament.

Many of these cases are rife with police and prosecutorial misconduct. Many early reports of these cases disappear so that the later, more polished versions of these statements can take center stage at trial.

By far the majority of these faux abuse cases are because one parent of the child wants to engage in score-settling. The tendency to believe a child is overwhelming, as is the fear of disbelieving the child unpalatable. The local news outlets are the most egregious at siding with the prosecution. They are quick to label anyone accused of a crime as a heinous monster. The media never mentions the shady tactics used by police, prosecutors, and experts. There are witch hunts that go on every day in every courtroom in our country and Geraldo Rivera is usually there covering them every weekend.

It was refreshing to see Tonya Craft acquitted yesterday. It gives many of us defense lawyers hope.

Friday, April 23, 2010

Federal Sentencing Trends post-Booker

More than five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.

Judges are attempting to comprehend the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.

Instead of eliminating the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.

There has clearly been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker.

The percentage also declined in both of the intervening years, to 60.8 percent in 2007 and 59.4 in 2008.

It seems that nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit. The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.  The 3rd Circuit averaged 46 percent with the lowest rate the Eastern District of Pennsylvania's 37.9 and the highest, the 68.6 in the Virgin Islands.

When judges stray from the guidelines, they are far more likely to go below them. Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.

Judges around  the country were most likely adhere to the guidelines for simple possession drug cases (90 percent), burglaries (83.3) and prison offenses (70.8). They were least inclined to do so where the offense was kidnapping or hostage taking (31.7), national defense (33.3) and bribery (35.7).

Since Booker, the Court has held that when an appeals court reviews a sentence, it is limited to deciding only whether it was reasonable.  A sentencing court must fully explain its reasons for sizable downward departures.

Douglas Berman, a law professor from Ohio State University's Moritz College of Law and the author of the Sentencing Law and Policy blog, says the Supreme Court has consistently upheld district judges' exercise of their post-Booker sentencing discretion.

Thursday, April 15, 2010

Does a drunken "yes" mean "yes"

The area of drunken consent in rape cases is a mine field where one needs to tread carefully. Pennsylvania Law is somewhat imprecise in this area (18 Pa.C.S. § 3121).

The classic definition of an alcohol induced blackout has the inebriated person acting relatively normally at a certain time, but the next day unable to remember anything concerning the period of time in question. Intoxication can result from ingestion of drugs or alcohol, but most of the case law in Pennsylvania seems to deal with alcohol intoxication. Is drunken consent real consent?

Young adults have beer parties, Jello shot parties, etcetera. For may young Americans, alcohol is the social lubricant. At what point must the healthy American male cease and desist from any attempt to have sex with a female who has been drinking? Let's face it most rapists are men and most victims of rape are women.

A complainant’s intoxication can impact consent in a rape trial in two possible ways. First, the complainant and the defendant could disagree about the fact or level of intoxication – i.e., capacity, so that the defendant claims either that the complainant was not drunk at all, or that she was not drunk to the degree that she was incapable of consenting but merely was disinhibited, and therefore she was in fact capable of, and did, consent. Second, there could be disagreement about whether or not there was consent – i.e., the defendant claims that the complainant gave consent, albeit drunken, and that she was capable even though intoxicated, whereas the complainant states that she cannot remember what happened because she was extremely drunk but that she knows that she did not want to have sex with the defendant (and she may also claim that she was too drunk to resist). The claim then could be either that she was not intoxicated (enough) and capable, or, that despite a high level of intoxication, she did consent.

What is consent? Is it a state of mind? Is it a set of actions or behaviors performed in a certain way? Is consent just an attitude formed in the mind of the consenter? Judges and juries have to deal with these issues every day in Pennsylvania. After the fact, they have to figure out through testimony and other evidence what version of reality to buy. A "yes" or a "no" is often interpreted by the actions of individuals. One court recently said that consent is not an attitude at all, "It is to act in a way that has conventional significance in communicating permission.” Inevitably, the issue turns on what the jury believes the complaining witness did or said to give the defendant permission to act.

Many feminists will not like some of the things we are saying here. They will argue that there is much ambivalence in a mental state, etcetera, etcetera. There is much controversy as of late on college campuses and many University codes are weighing in with their positions

Some local University sexual assault policies:

University of Pennsylvania

Assent shall not constitute consent if it is given by a person who because of youth, mental disability or intoxication is unable to make a reasonable judgment concerning the nature of or harmfulness of the activity. This policy applies to groups as well as individuals.


Or cannot give consent (e.g. due to intoxication)


(c) Forcing, or attempting to force, any other person to engage in sexual activity
of any kind without her or his consent.
Consent is not considered given by a person when he/she is unable to make a
reasonable judgment concerning the nature or harmfulness of the activity because
of his or her intoxication, unconsciousness, mental deficiency or incapacity, or if
consent is the product of threat or coercion.


Don’t take advantage of someone’s drunkenness or drugged state.

Saint Joseph's University

There are situations when a person may be considered incapable of giving consent such as, if he/she is: asleep, unconscious and/or losing and regaining consciousness, or clearly mentally or physically incapacitated, for example, by alcohol and/or other drugs. A verbal "no" even if it may sound indecisive or insincere, constitutes lack of consent. Further, it is not necessary that an individual resist an attack or otherwise affirmatively express lack of consent.

Use of alcohol and/or other drugs shall not diminish one's responsibility to obtain consent. Being in an on-going relationship does not preclude the possibility of sexual misconduct occurring within that relationship.


A man may also wrongly assume that a woman is automatically sexually “available” when there is alcohol involved. Sexual assault also may result from an assailant taking advantage of a woman’s diminished capacity to set limits or protect herself when she has been drinking.

The new standard seems to be to an attempt to reshuffle the concept of consent.  Would it be a good idea to breathalyze rape victims to determine  the level of their intoxication?  Should we set a new standard for  drunken sex as there is for drunken driving?  In Britain, there is serious legislative movement towards doing just that.

This is complicated stuff to attempt to understand a woman's experience of sex when intoxicated, or a man's perception of a woman's intoxicated consent. It is safe to say that raging hormones and binge drinking don't mix well together.