I keep thinking about and re-reading Adam Gopnik's article, The Caging of America.
I know you are busy, but I hope you will read it, and think about what mass-incarceration is doing to America.
This morning's Op-Ed in the New York Times by Michelle Alexander, suggesting the equivalent of a Strike by defendants against taking pleas has me thinking even more.
--Chris
Sunday, March 11, 2012
Monday, January 23, 2012
An American Moment
A little bit of history was made at 401 West Trade
Street Friday, but Charlotte didn’t seem to notice much. The Fourth
Circuit Court of Appeals held a session of oral arguments at the federal
courthouse here for the first time in more than 50 years. Lawyers and law students showed up in numbers
to watch and note the event, but the rarity is not what struck me.
I sat in the gallery in the courtroom where Swann
v. Board of Education – the seminal Charlotte school desegregation case
– got its start. Overlooking the
courtroom are eight large portraits of white male federal judges who have held
court in the last 100 years. As
best I can tell, in 140 years all of the federal district judges here have
been white men. If I’m wrong, please let
me know.
At 9:30 sharp, court began and the three appeals
court justices walked in: Allyson Kay Duncan,
an African American, Albert
Diaz, a Hispanic American, and James A. Wynn, Jr., an
African American.
I have been practicing in that courtroom for 17
years. For me, it was a jarring, surreal
but welcome moment.
Wednesday, December 14, 2011
New trial for Michael Peterson
My law partner, David Rudolf, just won a new trial today for Michael Peterson. See:
http://www.newsobserver.com/2011/12/14/1710482/lawyers-poised-to-make-final-arguments.html .
http://www.newsobserver.com/2011/12/14/1710482/lawyers-poised-to-make-final-arguments.html .
Sunday, December 4, 2011
Rudolf ventures back to Durham
My law partner, David Rudolf, tomorrow begins a set of hearings in the case of State v. Michael Peterson that should be an adventure. Here are two articles in today's Raleigh News & Observer recounting (1) the grounds for a new trial; and (2) the latest in the ongoing high drama that is Durham criminal justice.
http://www.newsobserver.com/2011/12/04/1687943/peterson-seeks-relief-but-deaver.html
http://www.newsobserver.com/2011/12/04/1688280/cline-wrote-false-motions.html
http://www.newsobserver.com/2011/12/04/1687943/peterson-seeks-relief-but-deaver.html
http://www.newsobserver.com/2011/12/04/1688280/cline-wrote-false-motions.html
Friday, November 25, 2011
Patriot James Otis Helps the Fourth Circuit
When the Fourth Circuit
quoted from James Otis, Jr. this summer, I fell out of my chair.
Otis was a pre-revolutionary
war hero, whose oration against the British Writs of Assistance in 1761
inspired John Adams and others. And the
Fourth Circuit has reached 250 years back to Otis to assert that the criminal
defense lawyers’ joke – the Fourth Amendment is dead in the Fourth Circuit
– may not be so.
It’s true: the Fourth Amendment is making a comeback in
the Fourth Circuit. Maybe it’s because
the mood of the country has turned against big government. And big government will thrive when police
can search whoever they want, whenever they want.
Maybe
it’s because six
new justices have climbed onto the bench in the last four years.
Maybe it’s because the
justices are granting oral argument in more criminal cases at the Court in
Richmond. We lawyers can speculate all
day long. But the Fourth Circuit opinions
seem to state plainly the reasons: the
justices are tired of the prosecutors’ painting every set of facts as supporting any search and seizure.
In three cases this year,
different Fourth Circuit panels flat out scolded the government for its
practice of arguing that everything is suspicious. (Fair warning: what follows is some wonky stuff.)
First came the general
scolding in Foster:
n The
Court expressed “our concern about the inclination of the Government toward
using whatever facts are present, no matter how innocent, as indicia of
suspicious activity.” United States v.
Foster, 634 F.3d 243, 248 (March 2, 2011).
n “[A]n
officer and the Government must do more than simply label a behavior as
“suspicious” to make it so.” (Same.)
n “Moreover,
we are deeply troubled by the way in which the Government attempts to spin
these largely mundane acts into a web of deception.” (Same.)
Next
came Massenburg, where the Court took
time to remind the government and district courts of the origins of the Fourth
Amendment:
n “Indeed,
as our late friend and colleague Judge
Michael reminded us in the 2010 Madison Lecture at New York University,
“The Fourth Amendment owes its existence to furious opposition in the American
colonies to British search and seizure practices . . . . Th[e] controversy
[over the use of general warrants] left citizens of the new American states
with a deep-dyed fear of discretionary searches permitted by general warrants
and writs of assistance.”” United States
v. Massenburg, 654 F.3d F.3d 480,
486 (August 15, 2011).
And,
my personal favorite:
n “James
Otis famously decried general searches as “instruments of slavery ... and
villainy,” which “place [ ] the liberty of every man in the hands of every
petty officer,” warning against abuses by “[e]very man prompted by revenge, ill
humor, or wantonness.” Timothy Lynch, In Defense of the Exclusionary Rule, 23
Harv. J.L. & Pub. P. 711, 722 (2000) (quoting James Otis, Speech on the
Writs of Assistance (1761)).” (Massenburg at 488.)
And
finally came the opinion in Hill,
where
n The
Court reiteritated “the ‘centuries-old principle of respect for the privacy of
the home.’” Id. at 260 (quoting Wilson v. Layne, 526 U.S. 603, 610, 119
S.Ct. 1692 (1999). In Hill, the Court found that the emergency
circumstances exception to the Fourth Amendment did not apply to allow entry
into an apartment when the facts showed only damage to the front door of the
apartment, “unsupported hunches of the police, and noises from within.” Hill
at 267. United States v. Hill, 649 F.3d 258 (August 18, 2011),
Some
of my colleagues think the blunt message in these cases is intended as much for
the trial judges as it is for the federal prosecutors. The cases certainly have reinvigorated my
appreciation for the Fourth Amendment, and boosted my morale. James Otis was a flawed dude (you can look it
up), but it’s way cool that he has made
his way from colonial Boston to 21st century Richmond.
Sunday, November 13, 2011
The Wail of Man Mins
[Since I wrote this, the US Sentencing Commission came out with a long report criticizing mandatory minimums. See http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Mandatory_Minimum_Penalties/20111031_RtC_Mandatory_Minimum.cfm
I told my client’s wife not to bring the kids to court. She didn’t listen. My client – let’s call him Irving – is a welder. He came to North Carolina in 2000, and for eight years worked five or six days a week at the same job, welding custom-shaped industrial piping. He is a skilled dude. I got a letter from his boss, who called Irving “an exemplary employee.” He got married, moved into a clean double-wide trailer, and began a family. Two daughters and a son. He filed and paid taxes every year. When the Great Recession hit, Irving was among the last to be laid off. He spent 2009 and 2010 welding here or there in temp jobs. One night in April 2011 detectives worked with an informant to set up a cocaine deal. The police were staking out the suspect’s house, when Irving showed up driving his beat-up 12 year-old car. The suspect got into the car. The cops stopped the car. Two hundred fifty-two grams of cocaine were found in the car – exactly 9 ounces, a common amount for a cocaine transaction.
Irving was charged under North Carolina law with three counts of Trafficking between 200 – 400 grams of cocaine. (Why three? The statutes allow the State to parse the same dope into three supposedly separate crimes: Trafficking (1) by possession; (2) by transportation; and (3) in conspiracy.) The Tar Heel state sticks each of these crimes with a mandatory sentence of 70 – 84 months imprisonment. See N.C.G.S. 90-95(h)(3). No parole. If convicted, the Judge has no discretion to mitigate the sentence. 70 – 84 months, period. I thought we had a chance to win a trial. I studied the discovery – the police reports indicated no one had any idea Irving was involved in the transaction until he showed up. But there were two big problems. At the moment the cops found the dope in the car, Irving tried to run. And Irving is an undocumented alien from Mexico.
The prosecutor offered this plea deal: one sentence of 70 – 84 months, or else the State would pursue boxcars – three consecutive 70 – 84 months, i.e. 210 to 252 months imprisonment. (17.5 to 21 years) I filed a motion to disclose the identity of the informant, hoping it might shake the prosecutor to offer a lesser plea (to Level I trafficking, 35 – 42 months). But the prosecutor was willing to burn the informant. I filed a motion to suppress, arguing the supposed basis for the stop – following another car too closely – did not justify the scope of the stop and search of the car. In the end, my client decided he could not risk a trial. He took the plea.
At the sentencing hearing, I explained to the Judge how Irving was a hard-working family man, with three young children who were U.S. citizens. How he had been married for 10 years. How he had made one mistake, and was going to be deported at the end of his sentence anyway. I showed the Judge the letter from his boss, his paycheck stubs, his tax returns. I did all this even though everyone knew the Judge had no discretion. 70 – 84 months. Mandatory minimums make no sense. We know that now. They’ve been around for 17 years, and the number of drug cases has not decreased. The price of cocaine has not gone up. The price of incarcerating men like Irving, a first offender whose personal history indicates he likely won’t re-offend, is too high.
Irving’s three year-old son watched through the glass door of the courtroom. Watched the bailiffs handcuff his dad, and take him out the back door to the jail. When I walked into the hallway with Irving’s wife, the boy asked: “Is papa coming home now?” When his mom did not speak, the boy began to wail.
I told my client’s wife not to bring the kids to court. She didn’t listen. My client – let’s call him Irving – is a welder. He came to North Carolina in 2000, and for eight years worked five or six days a week at the same job, welding custom-shaped industrial piping. He is a skilled dude. I got a letter from his boss, who called Irving “an exemplary employee.” He got married, moved into a clean double-wide trailer, and began a family. Two daughters and a son. He filed and paid taxes every year. When the Great Recession hit, Irving was among the last to be laid off. He spent 2009 and 2010 welding here or there in temp jobs. One night in April 2011 detectives worked with an informant to set up a cocaine deal. The police were staking out the suspect’s house, when Irving showed up driving his beat-up 12 year-old car. The suspect got into the car. The cops stopped the car. Two hundred fifty-two grams of cocaine were found in the car – exactly 9 ounces, a common amount for a cocaine transaction.
Irving was charged under North Carolina law with three counts of Trafficking between 200 – 400 grams of cocaine. (Why three? The statutes allow the State to parse the same dope into three supposedly separate crimes: Trafficking (1) by possession; (2) by transportation; and (3) in conspiracy.) The Tar Heel state sticks each of these crimes with a mandatory sentence of 70 – 84 months imprisonment. See N.C.G.S. 90-95(h)(3). No parole. If convicted, the Judge has no discretion to mitigate the sentence. 70 – 84 months, period. I thought we had a chance to win a trial. I studied the discovery – the police reports indicated no one had any idea Irving was involved in the transaction until he showed up. But there were two big problems. At the moment the cops found the dope in the car, Irving tried to run. And Irving is an undocumented alien from Mexico.
The prosecutor offered this plea deal: one sentence of 70 – 84 months, or else the State would pursue boxcars – three consecutive 70 – 84 months, i.e. 210 to 252 months imprisonment. (17.5 to 21 years) I filed a motion to disclose the identity of the informant, hoping it might shake the prosecutor to offer a lesser plea (to Level I trafficking, 35 – 42 months). But the prosecutor was willing to burn the informant. I filed a motion to suppress, arguing the supposed basis for the stop – following another car too closely – did not justify the scope of the stop and search of the car. In the end, my client decided he could not risk a trial. He took the plea.
At the sentencing hearing, I explained to the Judge how Irving was a hard-working family man, with three young children who were U.S. citizens. How he had been married for 10 years. How he had made one mistake, and was going to be deported at the end of his sentence anyway. I showed the Judge the letter from his boss, his paycheck stubs, his tax returns. I did all this even though everyone knew the Judge had no discretion. 70 – 84 months. Mandatory minimums make no sense. We know that now. They’ve been around for 17 years, and the number of drug cases has not decreased. The price of cocaine has not gone up. The price of incarcerating men like Irving, a first offender whose personal history indicates he likely won’t re-offend, is too high.
Irving’s three year-old son watched through the glass door of the courtroom. Watched the bailiffs handcuff his dad, and take him out the back door to the jail. When I walked into the hallway with Irving’s wife, the boy asked: “Is papa coming home now?” When his mom did not speak, the boy began to wail.
Wednesday, November 9, 2011
Innocence Case Victory
Walking my client out of jail after 11 years in prison for a murder he did not commit was, for lack of a better term, cool.
Here's a link to today's NC Bar Association Criminal Section newsletter article about the Innocence Commission trial that we won in Asheville in September. It's a bit wordy:
http://criminaljustice.ncbar.org/newsletters/truebillnov2011/uniqueagency.aspx
It was a grueling trial, but truly rewarding.
Pictures may be a better way to understand what happened: Here is the photo gallery the Asheville Citizen-Times published on the last day of the trial:
http://www.citizen-times.com/apps/pbcs.dll/gallery?Avis=B0&Dato=20110922&Kategori=NEWS01&Lopenr=309220080&Ref=PH
--Chris
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