Dancing the Kentucky Two-Step – LISA Newsletter for the Week of March 28, 2016


Vol. 2, No. 13

This week:

The Kentucky Two-Step
FOIA Information Isn’t Any Freer Than You Are
Ninth Circuit Judge Calls Out Prosecutors
2255 Prejudice Comes Cheap In The 5th Circuit
Legal Briefs –
     Me and My Big Mouth
     Try to Save Me Money? Take That!
     You’re Not Guilty Enough
Sentence Reform Lays an (Easter) Egg



The Speedy Trial Act requires that a defendant be brought to trial within 70 days of indictment (subject to a lot of exceptions and exclusions). But what’s a court to do when there are no exclusions left, and the 70 days are up?

dance160328The 6th Circuit last week told an Eastern District of Kentucky court what it could not do. Jason Brown was a defendant with a definite idea about his rights under the STA. When the deadline loomed, but the attorneys had conflicts and a witness was not available for a couple of weeks, he refused to go along with a continuance. So the judge started the trial, picked a jury, and then recessed for a few weeks until everyone’s schedule was clear.

Problem solved? Jason didn’t think so, and the Circuit agreed. In a lengthy opinion, the Court concluded that the “trial did not commence on September 8, despite the commencement of voir dire, because the court employed the start-and-stop plan with the intent to pay lip service to the Act.” The appeals panel concluded that none of the days after September 8 were excludable from the STA, and thus Jason’s rights were violated.

The 6th Circuit noted in passing that the district court seemed to believe that Brown had to show “prejudice” to prevail on his STA claim. The Court rejected that, holding that the STA “guarantee is violated if the prosecution oversteps the time limits of the act. Under the Speedy Trial Act there is no need to measure prejudice to the defendant.”

United States v. Brown, Case No. 14-6543/6544 (6th Cir. Mar 24, 2016)

It’s common for inmates to file requests under the Freedom of Information Act to obtain files relating to their cases. It’s almost as common to wait for years before hearing from the FBI, DEA or some other agency that hardly any documents (or no documents at all) exist.


If it seems that agencies are worse than ever in turning over records, there’s a reason: the Associated Press reported last week that during the Obama years, the government set a record for the number of times it told requesters that despite searching, it couldn’t find a single page requested under the FOIA.

In more than one in six cases – about 130,000 times last year – government workers said they came up empty-handed. In fact, people who asked for records under the law received censored files or nothing in 77% of requests, also a record.

The FBI couldn’t find any records in 39% of cases. U.S. Customs and Border Protection couldn’t find anything in 34% of cases. Skepticism over such results has led some requesters to specify exactly how they want federal employees to search for files, rather than relying on government staff to figure out how best to proceed. “They do really crappy searches,” said Washington lawyer Kel McClanahan, who handles transparency and national security cases.

Associated Press, US Government Sets Record For Failures To Find Files When Asked (Mar. 18, 2016)


callingout160328Last summer, Judge Alex Kozinski of the 9th Circuit wrote a thoughtful law journal article called Criminal Law 2.0. In it, he listed 12 reasons to be concerned about the criminal justice system, including prosecutors withholding evidence from the defense in violation of Brady v. Maryland.

One of Judge Kozinski’s suggestions for ensuring Brady compliance was to name names: “When prosecutors misbehave, don’t keep it a secret. Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors.”

Last week, Judge Kozinski did just that. In Frost v. Gilbert, a decision on a Washington state habeas corpus, the 9th Circuit held that prosecutors had withheld evidence of a plea deal the prosecution had secretly given a witness in exchange for testifying, and then lied to the prisoner in answer to a public records request. The court held, however, that the prisoner had not been prejudiced, because – even if he had known about the secret deal – there was no reasonable probability that he would have been acquitted.

prosmis160328Five of the 11 Circuit judges essentially told the prosecutors – who were identified in the opinion– to report themselves to the state bar: “We have been apprised of no sanctions against these individuals, nor any inquiry conducted by the courts. Nor have we heard of any effort to hold [the witness] accountable for the perjury he almost certainly committed in his testimony in Frost’s case or to determine the degree to which he may have been aided in that endeavor by prosecuting attorney Wagnild. We are mindful that there may be circumstances of which we are unaware that cast the matter in a different light. Yet … we do not believe this is a sufficient reason to keep silent. The individuals we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing an explanation for its consideration.”

Four of the en banc judges accused Judge Kozinski of using the decision as a “platform to offer the author’s ‘two-cents’ on the supposed inner-workings of Washington’s criminal justice system. Along the way, the character and integrity of several public employees is tarnished.”

Kozinski, Alex, Criminal Law 2.0, 44 Geo.L.J. Ann.Rev.Crim.Proc. (2015)

Frost v. Gilbert, Case No. 11-35114 (9th Cir. Mar 21, 2016)

Fletcher Freeman was charged with a drug conspiracy and possession. Later, the government piled on a third count for possession in a superseding indictment. He was convicted in due course.

Fletch filed a motion under 28 U.S.C. § 2255, claiming that the possession count was barred by the statute of limitations. He argued his lawyer was ineffective in failing to argue that the third count was filed past the 5-year cutoff.

cheap160328Most 2255 ineffective assistance of counsel claims fail, not because lawyers don’t blunder (they often do), but because inmates can’t show that if that the mistake hadn’t happened, it’s reasonably probable they would have ended up better off. That’s what happened to Fletch in the district court: the government admitted the possession count was barred by the statute of limitations, but said Fletcher would gotten the same sentence even without it.

Last week, the 5th Circuit reversed. It held that “Freeman’s counsel was deficient … Counsel was required to perform research on whether the superseding indictment would relate back to the original indictment.” More important for Fletcher Freeman, the Circuit held that “the ‘prejudice prong’ is also supported by the record. Freeman had to pay a $100 special assessment on count three; thus, he suffered prejudice as a result of counsel’s failure to move to dismiss said count.”

So a hundred bucks will buy you prejudice. There are few better bargains in life.

United States v. Freeman, Case No. 14-30220 (5th Cir. March 21, 2016)



bigmouthB160328When Jorge Sanchez was being booked after his arrest on trafficking charges, the police booking asked the not-yet-Mirandized defendant the usual questions about his name, date of birth, height, weight, and so on. When asked for his current employment, Sanchez matter-of-factly answered that he was “a drug dealer.”

Not a good answer. Last week, the 1st Circuit told the abashed Sanchez that normal booking questions do not constitute an interrogation, and that it would not suppress his wise-ass response.

United States v. Sanchez, Case No. 15-1107 (1st Cir. Mar. 23, 2016)



Prison phone companies told the U.S. Court of Appeals for the D.C. Circuit last week that enforcement of new Federal Communications Commission-ordered lower rates for in-state calls will cause “jail unrest.”

punch160328The phone companies want the Court to stay the FCC order. The vendors say the court should mostly preserve the status quo, while the FCC argues that the order lets it apply its existing caps on interstate call rates to intrastate calls.

A phone company executive said in an affidavit that if the new order is enforced, “inmates will be angry if they believe that we are charging the wrong rates. There could be damage to our phones and equipment, as well as a threat to overall security and corrections personnel including inmates within the facilities. Having been in this industry for eight years, I have experience with jail unrest and I know that issues with the phones can trigger it.”

Ars Technica, Prison phone company says rate caps will make inmates angry and dangerous (Mar. 18, 2016)



“I admit I was in a conspiracy with other people to, uhm — with 50 grams or more of meth, to have bought it,” Lloyd Nickle told the district court.  The judge, however, wanted more, telling him to “admit enough information for me to make a reasonable decision about your drug activity.” But Nickle added only that other conspiracies were not in Montana, but “in other states.” The district refused to “accept a plea from this man under these circumstances,” and made him go to trial.

NGE160328Last week, the 9th Circuit reversed. It said “there is no requirement in Rule 11(b) that the defendant himself give an in-depth account of his crime or confirm that everything in the government’s offer of proof is true. Although Nickle claimed ‘some of the things that the witnesses say [in the government’s offer of proof] are untrue,’ he never suggested that the government did not have sufficient evidence for a jury to conclude that he is guilty. Armed with the defendant’s admission of guilt and the government’s offer of proof, the district court had all it needed to fulfill its duty under Rule 11(b)(3).”

United States v. Nickle, Case No. 14-30204, -30229 (9th Cir. Mar 21, 2016)


chicken160328The Sentencing Reform and Corrections Act of 2015 – before the Senate as S. 2123, and before the House as H.R. 3713 –is nowhere near hatching.  All that happened last week was that H.R. 3713 picked up yet two more cosponsors, both  Democrats from New York. The Senate bill still has 28 cosponsors, while H.R. 3713 now has 63.

Mostly, legislators were  home for Easter week. Back in Kentucky, Senate Majority Leader Mitch McConnell told students at Northern Kentucky University that S. 2123 is supported by a majority of Democrats, but Republicans are divided on the issue. “The reason it’s kind of divided is that you’ve got an awful lot of people in the law enforcement community that are not really convinced that having lighter sentences is a good idea,” McConnell said. “They oppose federal sentencing reform because “there aren’t any casual users in the federal prison, these are all the bad guys.”

badguy160328And how about those “bad guys?” The Justice Department last week released statistics – which showed federal prosecutors pursued fewer but more serious drug cases – as evidence that Obama’s criminal justice reforms are bearing fruit. “Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders,” Deputy Attorney General Sally Yates said.

New statistics show federal drug prosecutions down 6% in 2015 after a prior 14% drop since the beginning of former Attorney General Eric Holder’s “Smart on Crime” initiative. Since 2012, the number of federal drug defendants accused of using a weapon rose from 15% to 17% and the number with a leadership role went from 6.6% to 7.8%.

In a speech last Wednesday to Congressional interns, House Speaker Paul Ryan (R-Wisconsin) said that criminal justice policies embraced by Congress in the 1990s have “end[ed] up ruining [defendants’] lives and hurting their communities where we could’ve have alternative means of incarceration, instead of basically destroying someone’s life. I’ve become a late convert.”

Business Insider reported that Ryan said, “Criminal-justice reform is something I never thought of when I was younger.  Be tough on crime, be tough on crime.”  Ryan said criminal-justice reform bills would be brought to the House floor soon, and he pledged to “advance” them.  “I didn’t necessarily know this before, but redemption is a beautiful thing. It’s a great thing.  Redemption is what makes this place work. We need to honor redemption. We need to make redemption something that is valued in our culture and our society and in our laws.”


Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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