Minus One, Plus Two at Supreme Court – Update for December 12, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


You may recall McCarthan v. Collins, a case dealing with when and under what terms an inmate may use a 28 USC 2241 motion. Nine federal circuits let inmates file 2241s under the 2255 “saving clause,” which provides that a prisoner may use the 2241 form of federal habeas corpus if it “appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.”

futility171212Earlier this year, however, the 11th Circuit held that an initial Section 2255 motion is an adequate and effective remedy to “test” a sentence, even when circuit precedent forecloses the movant’s claim at the time of the motion. After all, the Circuit said, a movant could have asked the court of appeals to overrule its precedent, sought Supreme Court review, or both. The saving clause in Section 2255(e), the 11th said, is concerned only with ensuring that a person in custody has a “theoretical opportunity” to pursue a claim, even if, at the time of the initial 2255 motion, the claim was virtually certain to fail in the face of adverse precedent. In other words, you have to raise arguments even when the court has already said the arguments are futile.

Both the 11th and 10th adhere to this draconian view. Dan McCarthan challenged the 11th Circuit interpretation. A few weeks ago, we reported that the Trump Justice Department asked the Supreme Court not to take the case, even though it acknowledged that the legal question is significant and that its new position could condemn inmates to serve out unlawful sentences. A week ago, the Supreme Court denied certiorari to Dan.

Meanwhile two new sentencing cases have been added to the Supreme Court docket. Hughes v. United States revisits the 2011 Freeman v. United States decision. Freeman said that a defendant with a F.R.Crim.P. 11(c)(1)(C) sentence – one where the sentence was fixed in the plea agreement – could get a sentence reduction under retroactive Guidelines changes only were the sentence was somehow tied to the Guidelines. Freeman was a 5-4 decision, and the fifth Justice only concurred, which made her concurring opinion the one that controlled.

undo160812Freeman has been a mess. Hughes gives the Court a chance for a do-over that may let more people with Rule 11(c)(1)(C) sentences reductions.

It frequently happens that defendants cooperate with the government, and are rewarded with a reduction in sentence under Sec. 5K1.1 of the Sentencing Guidelines. In Koons v. United States, the Supreme Court will determine whether a defendant who has a mandatory minimum sentence prescribed by statute, but who gets a 5K1.1 sentence reduction beneath that minimum, can later get a sentence reduction under retroactive Guidelines changes, even where the new sentence is below the mandatory minimum that was voided by the 5K1.1 motion.

Hughes v. United States, Case No. 17-155 (certiorari granted Dec. 8, 2017)

Koons v. United States, Case No. 17-5716 (certiorari granted Dec. 8, 2017)

– Thomas L. Root


Showing Passion for Compassionate Release – Update for December 10, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Up to now, the BOP compassionate release program has seemed like the weather: everyone talks about it, but no one does anything about it.

Under 18 USC 3582(c)(1), the BOP director is empowered to recommend the compassionate release of an aged, infirm or sick inmate to his or her sentencing judge. The district court then makes the call whether to release the prisoner or not. It is an open secret that while the BOP constantly wrings its bureaucratic hands over its soaring costs of inmate care, an inmate has perhaps a better chance of being struck by lightning than he or she does being recommended or compassionate release. On average, about 575 applications for compassionate release are filed annually: the number actually granted averages about 24.

In 2013, the DOJ Inspector General encouraged the BOP to step up its game. Two years later, the IG’s aging inmates study found “aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released.” In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

Last July, Sen. Richard Shelby (R-Alabama) – chair of the Senate Appropriations Committee Subcommittee on Commerce, Justice, Science and Related Agencies – ordered the BOP to turn over a gold mine of data on the compassionate release program. Sen. Shelby gave the BOP 60 days to deliver the data, but what the BOP provided the Committee has not been revealed.

(Full disclosure: LISA filed an FOIA request with the BOP two months ago to get a copy of what the Committee was given. So far, no response).

Finally, last August, four U.S. senators wrote a letter to the BOP requesting an update on its efforts to expand its use of the compassionate release program.

scrooge171211Now, a coalition of Families Against Mandatory Minimums (FAMM), American Conservative Union Foundation, Human Rights Watch, National Council of Churches, Law Enforcement Action Partnership, and National Disability Rights Network, have formed The Campaign for Compassionate Release. “It is cruel and senseless to prisoners and families alike to abandon an individual to suffer or die alone in prison, separated from loved ones,” FAMM General Counsel Mary Price said in a press release. “These prisoners are the least dangerous and most expensive to lock up, yet compassionate release often exists in name only. It often fails the people it is intended to help. And we’re fed up.”

While the Campaign will target both federal and state policies, the first stages of the launch focus on reforms to the federal compassionate release program. Last week, the Committee sent a letter to BOP Director Mark Inch, urging him to expand the program’s use. In addition to appealing directly to Inch, FAMM has also released a series of videos highlighting the kinds of cases the BOP either ignores or denies. 

Families Against Mandatory Minimums, FAMM Announces Launch of National Campaign for Compassionate Release (Dec. 7, 2017)

Reason.com, Pressure Builds on Bureau of Prisons to Release Elderly and Sick Inmates (Dec. 8, 2017)


A Good Idea is Not Necessarily the Law – Update for December 8, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


There’s the old public service tagline about seat belts not just being a good idea, but being the law as well. It spawned more than one parody. But one kiddie-porn possession defendant learned last week that the meme does not have legs.

gravity171208The Circuits are strongly split over how to treat defendants subject to child porn Guidelines, which in the past 14 years have become draconian even by the normally harsh advisory Sentencing Guidelines. The 2nd Circuit started off the principled opposition to the stratospheric child porn sentencing ranges mandated by Congress in the 2010 case of United States v. Dorvee, holding that courts could pay little deference to child porn Guidelines because they were not set by the reasoned professional judgment of the Sentencing Commission, but instead by the political hacks in Congress. Two years later, the 6th Circuit ruled in United States v. Bistline that the fact that Congress told the Commission to set the ranges high meant the child porn guidelines were entitled to even more deference than the normal Guidelines.

anarchy171208In 2014, the 7th Circuit held in United States v. Price that it agreed with Dorvee, and said a sentencing judge could vary downward because of policy differences with Congress. But last week, the Circuit reminded defendants that “while district courts may disagree with the Guidelines’ policies and impose a lower sentence, it is not true that they must” do so.

bereasonable171208Terry Obetz questioned the usefulness of the Guidelines in child pornography cases, because the Guidelines were shaped by Congress instead of sentencing experts, and thus lack a basis in empirical data. He argued that Price requires sentences in child pornography cases to fall below the Guidelines’ range in order to be reasonable.

The judge listened to Terry’s policy argument but was not convinced: after all, the judge said, Congress created the Sentencing Commission, and it was free to give the USSC “some direction” when it wanted to. After all, what is a sentence but a political expression of appropriate punishment.

The sentencing court knew it was not bound by the Guidelines, but the judge said he believed the Guidelines’ recommendation – even if it was authored by Congress (or maybe especially because it was authored by Congress) – was appropriate.

judges171208On appeal, the 7th observed that the exercise of discretion shown by Terry’s judge  was “exactly what the judge was supposed to do.” Just as the judge in Price exercised her discretion when she reasonably deviated down from the Guidelines on policy grounds, Terry’s judge exercised his discretion, too, when he reasonably chose not to do so.

Judges judge, the Circuit said. That’s what they do, and as long as they are reasonable about it, the Court of Appeals was not going to tell them differently.

United States v. Oberg, Case No. 17-1546 (7th Cir. Dec. 1, 2017)

– Thomas L. Root


Lying Down with Dogs – Update for December 7, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Like 94 out of 100 defendants, Kamal King-Gore made a deal with the government after his arrest on drug charges. One of the terms of the plea agreement, a fairly common provision, stipulated that nothing Kamal told the government in his proffer would be used against him.

fleas171207At sentencing, however, the AUSA breached the agreement by telling the court what Kamal had said at the debriefing, specifically evidence Kamal had given the government that portrayed him in fairly bad light. While the government recommended a 188-month sentence like it was supposed to do, it did so while reporting to the judge that  Kamal was a wholesale drug seller and explaining in detail the quantities Kamal had moved.

Kamal should know that if you lie down with dogs, you’re going to probably get up with fleas. Speaking of dogs, the judge – who had no idea she was being treated to information  Kamal had told the government only because it promised not to use them against him – heard the government’s dog whistle loud and clear. She obligingly branded Kamal a wholesaler (a term first used by the government) with a serious record. Nevertheless, the court sentenced Kamal to 162 months, less than the time the government agreed to recommend.

Some people are never satisfied, and you can drop Kamal into that camp. He appealed, arguing that while the government kept its word on the amount of time it recommended, it talked out of school about things it learned in the proffer, such as that Kamal had cooked up a quarter kilo of cocaine into crack. 

ausalies171207On appeal, the government admitted it broke its word, but argued that its breach did not hurt Kamal because there was plenty in the record that would have set off the judge anyway, and anyhow, he got less than his Guidelines range. Even without its pulling a data dump on Kamal at sentencing, the government said, the district judge would have hammered him.

Last week, the D.C. Circuit disagreed, reversing the sentence. The AUSA argued the “record shows ample independent evidence for the district court to conclude” Kamal “deserved a higher sentence.” This is so, the D.C. Circuit said, but the “question isn’t whether defendant’s prison term would have been drastically shorter—just whether it was reasonably likely that the prison term would not have been as long had the district court considered only permissible factors.”

dogcouch171207Here, the sentencing judge picked up the term “wholesale seller” only after the government used it in its sentencing arguments. And the government supported its use of the “wholesaler” term by referring to a sale that appeared nowhere in the record. That was enough to convince the Court of Appeals that Kamal was entitled to resentencing in front of a different judge who had not heard about what Kamal said at his proffer.

United States v. King-Gore, Case No. 13-3010 (D.C. Cir. Nov. 28, 2017)

– Thomas L. Root


Can You Find Me Now? – Update for December 5, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Waldo171205The Supreme Court heard oral argument last Wednesday in Carpenter v. United States, an important criminal case asking whether prosecutors may use cellphone location records against a defendant when the records were obtained from cellphone companies without a warrant.

The more basic question is whether personal information collected by third parties (often without one’s consent or even knowledge) remains private to the extent that the 4th Amendment requires a search warrant before the government swoops in to commandeer it.

Cellphones send signals to the nearest cell towers as long as the phone is on, even when no call is being made. Cellphone companies store records of the tower to which a cellphone is linked for up to 18 months. By stringing together 18 months of cell tower records, one can easily build a historical record of just about everywhere one was for the past year and a half. Scary.

For robbery suspect Tim Carpenter, the data obtained by the government without a warrant showed he was in the vicinity of several Radio Shack locations right at the time those stores were being robbed (of smartphones, ironically enough). We call that location data “circumstantial evidence,” but – contrary to popular belief – circumstantial evidence is perfectly good evidence, and in Tim’s case, it was good enough to convict. Tim got sentenced to a mere 116 years.

radioshack171205At oral argument, the Supreme Court seemed sympathetic with the idea that information in the hands of a third party may nevertheless be so personal that a search warrant is required before it is retrieved. At the same time, the Court was puzzled as to how to frame a rule to cover the situation. As Justice Stephen Breyer put it at one point, “This is an open box. We know not where we go.”

Even if the Court does hold that cellphone location records required a search warrant to obtain, the holding probably would not help people who have already been convicted. The decision would be a new constitutional rule of criminal procedure, but in all likelihood it would not be a “watershed” rule that would be retroactive for convictions that were already final.

... except when it's not.
... except when it’s not.

What’s more, even if the location data is held to be protected by the 4th Amendment, incarcerated people who will someday be on supervised release should recognize that their cellphones – which now more than ever contain the user’s entire life story – are not private. In a decision last week affirming Valentino Johnson’s felon-in-possession conviction, the 9th Circuit held that a warrantless search of his cellphone was permissible because he was on parole.

The Circuit said parole is different from probation, because it is akin to actual imprisonment. “On the ‘continuum’ of state-imposed punishments,” the Court said, “parolees appear to hold the most limited privacy interests among people convicted of a crime but are not actually imprisoned.” Although the case relates to state parole, its analysis would apply equally to supervised release.

SCOTUSBlog.com, Argument analysis: Drawing a line on privacy for cellphone records, but where? (Nov. 29, 2017)

United States v. Johnson, Case No. 16-10184 (9th Cir. Nov. 27, 2017)

– Thomas L. Root


Shakeup at State Department May Rid Senate of Sentencing Reform Foe – Update for December 4, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


illwind171204A 500-year old proverb holds that it’s an ill wind that blows no one any good. In other words, even a lousy turn of events may benefit someone.

The story broke last Thursday that President Trump is considering dumping Secretary of State Rex Tillerson and replacing him with CIA Director Mike Pompeo. There is a lot of media hand-wringing over the plan to remove Tillerson, who has been a much better Secretary of State than the pundits predicted, but for our purposes the silver lining is that moving Pompeo to the State Department would create a vacancy at the CIA. Government officials familiar with White House thinking said the CIA slot could be filled by Sen. Tom Cotton (R-Arkansas), one of the President’s staunchest Congressional foreign policy defenders and a criminal justice hardliner.

cotton171204Those who remember the sentencing reform debate last year may appreciate Reason.com’s explanation that Sen. Cotton “has a nasty record of taking any number of authoritarian, anti-liberty positions. Getting him out of the Senate could arguably be an improvement in terms of lawmaking. He has been a supporter of harsh mandatory minimum federal sentencing for drug crimes and has stood in the way of reforms of the criminal justice system… Cotton has been no friend of freedom as a senator.”

It may even be too much of a good thing. Sen. Cotton has been so in tune with the President’s authoritarian urges that some Administration officials told the New York Times last week that there is concern that he’s more valuable to Trump in the Senate. If Sen. Cotton leaves the Senate to head the CIA, Arkansas Gov. Asa Hutchinson, a Republican, would name a replacement to serve until next fall. Hutchinson has not been terribly thrilled with the way Trump has been handling himself as president, and may not nominate someone as reliably right-wing as Sen. Cotton.

badge171204Sentence reform has not made much progress this year while Congress has been focused on health care and tax reform. But as Sen. Mike Lee (R-Utah) noted a month ago, the Sentencing Reform and Corrections Act could receive 70 votes in the Senate if it ever comes to a vote.  Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog last Friday that “I think Senator Cotton is one big reason the Sentencing Reform and Corrections Act seems unlikely to get a vote in the Senate in the near future.  But if Senator Cotton becomes CIA Director Cotton, maybe these political dynamics change for the better for those eager to see sentencing reform enacted in Congress.”

Real Clear Politics, Trump weighs plan to replace Tillerson with CIA’s Pompeo (Nov. 30, 2017)

New York Times, White House plans Tillerson ouster from State Dept., to be replaced by Pompeo (Nov. 30, 2017)

Reason, CIA Director Tom Cotton: A Disaster for foreign policy or a boon for better lawmaking? (Nov. 30, 2017)

Sentencing Law and Policy, Does federal statutory sentencing reform become a bit more likely if Senator Tom Cotton were to become CIA Director? (Nov. 30, 2017)

– Thomas L. Root 


Keep Those Marks… uh, Inmates Stirred Up – Update for December 1, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


In the post-conviction world, a number of legal and paralegal purveyors offer inmates assistance (for a fee, of course) in filing habeas corpus petitions, motions to reduce sentences, and other appropriate (and sometimes, not-so-appropriate) means of cutting prison time. We don’t have trouble with shameless commerce: we provide some of those services, too, and we don’t do it for free.

Nevertheless, prisoners are an extraordinarily vulnerable class of consumers. The desire for freedom is a fairly powerful urge, and many inmates are less-than-educated in the ways of the criminal justice system. Anyone mongering hope finds it fairly easy to shake money out of the families of inmates wanting to get out early.

puzzled171201For that reason, people offering post-conviction help to inmates should have a strong moral compass as well as a sense of caution when it comes to suggesting that a change in the law/ regulations/guidelines/ whatever is about to make everything better. Which brings us to today’s puzzler:

Another outfit which shall remain nameless (we’ll call it “XYZ Paralegal”) sent out a inmate-targeted email last week that included this observation about the U.S. Sentencing Commission:

“We were also curious why November 6 came and went without the new First Offender proposal being published in the Federal Register, which must be done to start the clock for making it effective for potential sentence reduction.”

This comment left us curious, too, curious as to what part of the Sentencing Commission’s rulemaking process the folks at XYZ don’t get. Remember that the so-called first-offender proposal is a contemplated change in the criminal history section of the Guidelines that would award extra credit to first-time people who had no prior criminal history. Currently, the best criminal history category – Criminal History I – is reserved for people with zero or one criminal history point. But someone can fall into Crim History I with a prior misdemeanor conviction, or even a sheaf of prior felonies if they are somewhere more than 15 years old. The first-offender proposal would award extra credit, in the form of a reduction in Guidelines score, for virgins, people with utterly clean records.

virgin171201The Sentencing Commission released an 85-page package of proposed amendments, which included the first-offender proposal, last August, setting a public comment period that ended Oct. 10, and a reply comment period ending Nov. 6. In the proposal, the USSC asked for suggestions on a couple of alternatives: first, should the benefit be a one-level reduction or two-? Second, should the credit go to anyone with a zero criminal history score (which would benefit people who had convictions that were too old to be counted) or should it be reserved only for the purest of the pure, people with no prior convictions inter lifetimes?

So what would have made the XYZ people think that (1) all of the comments and reply comments would be digested as of midnight on November 6, and (2) the Commission would have adopted a first-offender proposal from the various options it floated, and (3) the adopted proposal would already be in the Federal Register. At minimum, this supposition exhibits a faith in the efficiency of government that anyone who’s ever dealt with Uncle Sam has long since lost.

The USSC has never suggested that the amendment proposals it released last August were intended to be adopted at any time before November 1 of this year. Indeed, anyone who is familiar with how the USSC has run the annual amendment cycle for the past 30 years knows how it works. The Commission plans to assemble a final package of amendments for adoption in April 2018. By law, those amendments will only become effective after a 6-month review period by Congress, or November 1, 2018.

There is an alternative explanation for the XYZ folks’ email. They note that XYZ is “continu[ing] to review the cases of people who appear to be eligible for relief under that proposal.” This may be why they are implying that an amendment not slated for effectiveness (if ever) for almost a year is on the cusp of being announced.

Inmates having their cases reviewed for “eligibility” under the first-offender proposal (and their families, who are paying the bill) should be forewarned: (1) No one yet knows whether there will even be a first-offender proposal; (2) If one is ever adopted, no one yet knows what the requirements will be for a Guidelines reduction, or whether the reduction will be 1-level or 2-level; and (3) Most important, the first-offender proposal will not apply to people who are already sentenced as of the day it goes into effect, unless the USSC has a separate proceeding to decide whether the first-offender proposal will be retroactive.

stars171201If all the stars align and if the first-offender proposal is adopted, and if it applies to an inmate’s case, and if it is retroactive, we never-theless expect that no one already convicted would be eligible to seek relief before about March or April of 2019 (based on what happened in the 2-level drug quantity reductions in 2007, 2011 and 2014). That is a guess, but it is one that – unlike suggesting that relief is just around the corner and you had better get your case reviewed now – makes sense.

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines, 82 FR 40651 (Aug. 24, 2017)

– Thomas L. Root


Licensed by the Government of the United Nations… – Update for November 30, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


In 1950, only one out of 20 jobs in America required a license. Today, the number has swollen to one out of four. Unsurprisingly, most of those licenses are denied to anyone with a criminal record.

spangler1711309Remember Carl Spangler, the demented assistant greens-keeper in Caddyshack, muttering about how he was “licensed by the Government of the United Nations, to kill gophers?” “Gopher shooter” is still not a licensed occupation (although possession of the sniper rifle Carl tried to use to kill the varmint could be problematic for a person with a criminal record). However, in a detailed study just released by the free market-leaning Institute of Justice, 102 other lower-income occupations were subject to licensing in many states.

The study ranked states according to the number of occupations (like tree trimmer, hair weaver, crane operator or bartender) subject to license, and how tough getting the licenses can be. Louisiana, Washington and California license the most; Vermont, Wyoming, Montana and South Dakota the least.

When it comes to the burdens states impose on would-be workers, however, Hawaii tops the list, requiring an average of almost 988 days in education and experience, more than $430 in fees, almost two exams, and grade and age requirements for the 63 occupations it licenses. Nevada is not far behind, with California, Arizona and Florida rounding out the top five.

dogirish171130The Report specifically noted the burden over-licensing places on people with criminal records. Noting that about “one in three adults has a prior arrest or conviction on their record,” criminal record prohibitions in licensing “likely affects a sizable share of the workforce.” The Report said, “Limiting employment opportunities not only hurts those with criminal records, it also puts communities at risk by making it tempting for former offenders to fall back into crime.5 Indeed, research has found a relationship between higher rates of recidivism and heavy licensing burdens… Between 1997 and 2007, recidivism rates grew by more than 9% in states with the heaviest licensing burdens and shrank by 2.5% in states with the lowest licensing burdens.”

Institute for Justice, License to Work: A National Study of Burdens from Occupational Licensing (Nov. 14, 2017)

– Thomas L. Root


Unringing the Bell – Update for November 29, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


whitebear171129Everyone’s favorite author Leo Tolstoy recounted that as a boy, he was inducted into a childhood secret pact called the “Ant Brothers.One of the initiation rites was to stand in the corner and not think about a big white bear.

So how do you not think about the bear? In a decision handed down several weeks ago, the 4th Circuit provide no helpful pointers on how to do it, but nonetheless mandates that it must be done.

Next to claims of ineffective assistance of counsel, a Brady v. Maryland claim is probably the most common one raised in post-conviction motions. To make a successful Brady claim, a prisoner has to show that the evidence at issue favorable to him either because it is exculpatory or because it impeaches a government witness; that the evidence was suppressed by the government, either willfully or inadvertently; and the prisoner suffered prejudice because the evidence was material.

Evidence is material if a petitioner can show that there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.

guilty170417Tony Juniper asked a federal court to grant him a writ of habeas corpus because Virginia prosecutors withheld evidence that undercut the State’s timeline used to convict him of murder, as well as evidence that would have discredited one of the State’s key witnesses. The district court agreed that the evidence had been withheld, that it indeed gave Tony defenses he never had without the evidence and it undercut the trustworthiness of a star State witness. The problem, the district court said, was that other evidence that it thought proved Tony’s guilt was not affected by the Brady material.

In a surprising (and we think welcome) decision, the 4th Circuit reversed, holding that first, the district court failed to “apply the proper legal standard in determining whether Petitioner alleged or established sufficient facts regarding materiality to warrant an evidentiary hearing.” In assessing a Brady claim, a court must construe facts in a light most favorable to the petitioner, and “draw all reasonable inferences in his favor.”

slept171129Second, the district court failed to properly account for the impeachment value of the withheld evidence. In determining whether there is a “reasonable probability” that the result of the trial would have been different, a court must consider “the aggregate effect that the withheld evidence would have had if it had been disclosed,” by adding to the weight of the evidence on the defense side… all of the undisclosed exculpatory evidence” and subtracting from “the weight of the evidence on the prosecution’s side… the force and effect of all the undisclosed impeachment evidence.” This meant the court had to assume that what the witness who would have been discredited said would have been ignored by a skeptical jury.

Finally, the district court cannot make credibility determinations based on a written record alone. In Tony’s case, the judge refused to credit Brady evidence that someone who looked like the murder victim had been seen much later than when Tony could have possibly killed her. The district court reasoned that crediting these statements would require accepting them “over the word of people who claim to have seen the petitioner either at or leaving the crime scene” before 12:44 p.m.

The 4th Circuit complained that “in determining whether a petitioner is entitled to relief… based on undisclosed exculpatory evidence, credibility should be assessed on the basis of an in-court hearing where the judge can see and hear the witnesses.” The district court decided who the jury would have believed without hearing the witnesses on the stand.

This case is a fascinating and detailed instruction manual as to how a district court must analyze a Brady claim. Without thinking about the bear.

Juniper v. Zook, Case No. 13-7 (4th Cir. Nov. 16, 2017)

– Thomas L. Root


Turkeys 3, Prisoners 0 – Update for November 28, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


presidential_pardon_thanksgiving_tile_coasterThe good news from the Trump White House is that the President has issued 1.5 times more pardons in his first 10 months in office as did either President Obama or President George W. Bush. The bad news is that the pardons only number three, all of the recipients were turkeys of one type of plumage or another, and none of the  pardons suggests the President will be very interested in further clemency.

arpaio171128The first act came in late August, when Trump pardoned primo turkey Maricopa County, Arizona, Sheriff Joe Arpaio – already well known for his harsh treatment of inmates – after he was convicted of contempt of court for ignoring federal court orders against harassing Hispanics. Prisoners applying for executive clemency are advised by the Justice Department that a show of contrition really helps, but that’s not necessarily a condition if you’re the good Sheriff.

A week ago today, President Trump pardoned two more turkeys, both more the Meleagris gallopavo kind, in the annual pre-Thanksgiving pardoning ritual that has been around for 30, 50 or 140 years, depending on the historian you believe.

Ohio State University law professor Doug Berman noted that Obama, Bush and Clinton “all started their presidencies with two full years in which they failed to use their historic clemency powers in any way. But Prez Trump is unlike his predecessors in so many ways, and his use of the pardon power is yet another example.” After the pardons of Phoenix-area Sheriff Joe Arpaio and the turkeys named Wishbone and Drumstick last week, Prof. Berman wonders about the next acts of clemency: “who knows?”

pardon171128But Trump himself has in the past as well as last Tuesday implied a lack of enthusiasm for the kinds of clemency Obama pursued. After announcing that Wishbone and Drumstick will join the two turkeys Obama pardoned last year, “Tater” and “Tot,” Trump joked that he is not allowed to reverse Obama’s turkey pardons.

“As many of you know,” Trump said, “I have been very active in overturning a number of executive actions by my predecessor. However I have been informed by the White House Counsel’s office that Tater and Tot’s pardons cannot under any circumstances be revoked. Tater and Tot, you can rest easy.”

Maybe the birds can shake their tailfeathers for joy, but the people most interested in clemency can fairly read into Trump’s statement a decided lack of interest in the Obama-era clemency.

Sentencing Law and Policy, Hasn’t Prez Trump has already pardoned a turkey before this week’s traditional ceremony? (Nov. 20, 2017)

Business Insider, Trump pardons ‘Drumstick’ the turkey and jokes about overturning Obama’s turkey pardons (Nov. 21, 2017)

– Thomas L. Root