Tag Archives: due process

Supreme Court ‘Cigar’ is Just a Cigar – Update for January 23, 2018

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


nelson180124Lawyers are always plumbing the depths of cases for new angles they can use in defending their clients, and that’s how it should be. After all, we had the 14th Amendment’s equal protection clause for nearly a century before legal thinking accepted that it meant we could not deny lodging, meals and voting to those of a different race. And the 1st Amendment was on the books for 175 years before courts accepted that we had a right to be wrong in our speech about public events and public people without risking financial ruination.

But sometimes, as Sigmund Freud famously probably never said, “a cigar is just a cigar.”

cigar180124A year ago, the Supreme Court grappled with a case named Nelson v. Colorado, a matter that seemed to us to so straightforward as to make us wonder why it was even being debated. Two folks from Colorado, in separate cases, had been convicted of crimes and – as part of the punishment – were made to pay court costs, fees and restitution. Both of them had their convictions overturned, but Colorado law required that before they could get back the money paid for the costs, fees and restitution, they had to jump through an additional hoop: they had to prove they were innocent.

Proving one’s innocence is a lot different from the government not being able to prove one guilty. And it is a step that the Supreme Court rejected in Nelson. The Court said that the 14th Amendment’s right to due process meant that the State could not retain funds taken from the defendants simply because their convictions were in place when the funds were taken. Once the convictions were erased, the Court said, the presumption of innocence was restored. “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions,” the Court said. Simply enough, the Supremes said, when the conviction was overturned, the defendants were defendants no longer, and were presumed to be as innocent as any other Colorado citizen. Thus, the costs, fines and restitution had to be returned to them, no questions asked.

When we read Nelson at the time, we thought that the result was pretty obvious, but – while an interesting addition to due process jurisprudence – a matter of little significance to other areas of criminal law. But we did not reckon with the creativity of attorneys.

innocent180124In the Bloomberg BNA Criminal Law Reporter last week, well-known and respected federal criminal defense attorney Alan Ellis and his associates penned an article entitled Does an Acquittal Now Matter at Sentencing? Reining in Relevant Conduct Through a Recent Restitution Ruling. In the piece, Mr. Ellis described how federal courts routinely rely on acquitted or dismissed conduct – allegations of wrongdoing that a jury either rejected or never even considered – in setting federal criminal sentences. Mr. Ellis argued that in the wake of Nelson, the presumption of innocence attached to defendant with respect to any acquitted or uncharged conduct. Thus, federal judges could not constitutionally punish such acquitted or uncharged conduct in setting sentences. Or, as Mr. Ellis put it:

Acquitted conduct cannot be used to penalize (or increase a penalty) because an acquittal, by any means, restores the presumption of innocence. And no one may be penalized for being presumed innocent.

Our email inbox exploded with questions from federal inmates wondering whether Attorney Ellis might be onto something. Our response is a thundering, “Uh… not really.”

Mr. Ellis is right that 18 USC 3661 holds that there is no limit “on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” He is also right that the provisions of 18 USC 3661 are limited by the Constitution. For example, a court may not consider a defendant’s race, national origin or faith in imposing a sentence, regardless of the seeming lack of boundaries in Sec. 3661. But his conclusion that a court cannot consider acquitted or dismissed conduct is an oversimplification.

First, the punishment being meted out is not being imposed because of a crime of which the defendant was not convicted. There’s a real difference between punishing some who has not been found to have committed any crime and setting the punishment of someone who has been found to have committed a crime. In Nelson, the defendants were being punished financially where they had been convicted of nothing. In the case of a federal prisoner, the sentence is precisely money180124because the defendant was convicted of a crime, either by his own admission in a guilty plea or because a jury found him guilty beyond a reasonable doubt.

For each federal crime, Congress has prescribed a penalty (for example, from 0-10 years for possession of a gun by a convicted felon, or 5-40 years for possession with intent to sell 500 grams or more of cocaine). If a defendant is convicted of one of those offenses, any sentence within the statutory range is constitutionally permissible. By contrast, the Colorado scheme invalidated in Nelson let the state continue the imposition of a penalty absent a conviction. That offended due process.

Second, Mr. Ellis noted a prior Supreme Court decision, United States v. Watts, holding that facts relied on by a judge in setting a sentence must be found by a preponderance of the evidence. However, he blithely suggested that Nelson implicitly overruled Watts, rather than considering that maybe the holdings do not clash at all. Watts required first that a defendant be guilty of a criminal offense, and it nowhere countenanced sentencing a defendant in excess of the statutory maximum. Instead, it simply held that under 18 USC 3661 and the due process clause, a judge may consider information from acquitted counts, provided the information proved the defendant’s involvement by a preponderance. This holding does not clash with Nelson, because the defendant is never punished in excess of what the statute allows for the crime that was committed.

Third, Mr. Ellis is flat wrong when he says that “the reasoning of Nelson thus compels the conclusion that Watts has been effectively overruled.” The Supreme Court has repeatedly and clearly held that “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”  While his prognostication that the Supreme Court would overrule Watts if the issue ever gets before it again is one we can neither prove nor disprove, we would suggest that what little tension the Watts caused among the justices is probably dissipated since Booker made the Guidelines advisory rather than mandatory.

onelson180124Finally, a primary issue in Nelson was what standard to apply, the due process inspection of Mathews v. Eldridge, or the more state-friendly standard from Medina v. California, which just asked whether the procedure required by the state for the defendants to get their money back offended “a fundamental principle of justice.” The Supreme Court applied the more defendant-friendly Mathews standard, because the issue in the case was “the continuing deprivation of property after a conviction has been reversed or vacated, with no prospect of reprosecution.” The Court thus defined the case as one arising where “no further criminal process is implicated.”

Use of acquitted conduct or dismissed conduct information in a federal sentencing, however, occurs in the middle of criminal process, at a time when further such process is almost a foregone conclusion. That makes use of acquitted or dismissed conduct information at sentencing a much different matter than the situation at issue in Nelson.

Don’t get us wrong: we would applaud a world in which judges were limited to only using information at sentencing that had been vetted by the “reasonable doubt” standard. But that is not the law, and despite Mr. Ellis’ creative interpretation, Nelson does nothing to change that.

Ellis, Alan, et al, Does an Acquittal Now Matter at Sentencing? Reining in Relevant Conduct Through a Recent Restitution Ruling, 102 CrL 364 (Jan. 17, 2018)

– Thomas L. Root


Pay No Attention to the Witness’s Lie – Update for November 6, 2017

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


corso170112You’d think that when a key prosecution witness lies on the stand during a murder trial, and the prosecutor knows it and the judge knows it and everyone except the jury knows it, the judge or the prosecutor would jump up and say, “Not so fast!”

After all, the obligation of someone – and that someone is supposed to be the prosecutor – to tell the jury the witness is lying is pretty well established after Napue v. Illinois and Giglio v. United States.

lies171106It’s pretty important that the prosecutor tell the jury his or her witness is lying. The defense attorney can do that, and often does, but somehow the punch of branding the other side’s witness a liar is not quite as effective as telling the jury your own witness is a liar. And even if the lie is about something tangential to the meat of the testimony, it’s important that the jury know about it. You lie about a little thing, you may lie about big things, too.

Consider the fate of poor Lariec Sherman, shot to death 18 years ago in a Peoria, Illinois, housing project. Although there was no physical evidence, the State of Illinois quickly rustled up four people who said Paysun Long was the shooter.

At Paysun’s first trial, two witnesses changed their stories, but the prosecutors playing the recordings of their statements made before they had recanted. One of the remaining two witnesses, Brooklyn Irby, first fingered Paysun but then then changed her story. She ultimately testified that before the trial, she told prosecutors her story about Paysun being the shooter was a lie.

Paysun was convicted, but it was overturned on appeal.

When Paysun was retried, prosecutors used the recorded testimony of two witnesses and live testimony from the other two. The defense again told jurors about how two witnesses had recanted. When Irby testified, she told the jury that Paysun was the shooter, but her account of the crime differed from what the other eyewitness said. The most damaging witness said Paysun shot the victim from behind.

pantsonfire160805It was Irby’s cross-examination that was interesting. She denied she had ever told the police and prosecutors that her initial identification was a lie. Although the prosecutor did nothing to correct her testimony, Paysun’s attorney didn’t sit on his hands. He called the prosecution’s own investigator as a witness, who admitted to jurors that Irby had indeed recanted her incriminating testimony during the first trial.

Even during closing arguments, the prosecutor never acknowledged that Irby had lied. Instead, he told the jury about a letter Irby had written that was even not in evidence. The judge interrupted, telling the jury to disregard the State’s attempt to put unadmitted hearsay in front of the jury, but all the instruction did was to get the jury’s attention. So much so, in fact, that during deliberations, the jury  asked to see the letter that was not part of the record.

Unsurprisingly, Paysun lost the second trial, too.

Paysun filed a post-conviction motion in state court, arguing the prosecutor violated Napue v. Illinois, which holds that the a prosecutor’s failure to correct a government witness’s false testimony is a due process violation. For good measure, Paysun complained that the State violated Giglio v. United States as well, which held that prosecutors have a duty to disclose to deals they make to get witnesses to testify.

Illinois courts ruled Paysun’s prosecutor had violated Napue and Giglio, but that it was “harmless error” because of other evidence in the case (that being the shaky testimony of the only eyewitness who had not recanted) that proved Paysun’s guilt. After appeal failed, Paysun filed a 28 USC 2254 motion in federal court, seeking review of the Illinois courts’ denial of habeas.

The district court agreed that the Napue and Giglio violations were presumed to prejudice Paysun, without any harmless error analysis allowed. Last year, the 7th Circuit agreed, but then the State won the right to an en banc rehearing.

Late last month, an en banc panel of the Circuit decided 5-3 that Napue and Giglio did not necessarily mean a defendant had a due process claim if the false testimony wasn’t elicited by prosecutors, if the truth was already known to the defense during trial, if the prosecutor did not ask jurors to rely on the false testimony, or if the jury learned the truth anyway.

cmon161027Here, the panel said, although the prosecutor remained silent about Irby’s perjury, Paysun’s lawyers exposed it. Plus, the prosecutor didn’t specifically rely on Irby’s false testimony, but instead just talked around it, arguing that her identification of Paysun as the gunman was true regardless of whatever the jury might think about the rest of what she said. In fact, the majority hypothesized, maybe the prosecutor’s refusal to correct Irby’s testimony actually helped Paysun because it allowed his attorneys to be the ones to portray Irby as a perjurer.

“C’mon, man,” the three dissenting judges seemed to say. The dissent was puzzled, dismayed maybe, that the majority would let a prosecutor get away with a lie. They said, “the majority’s suggestions that Napue leaves the state courts room to avoid following it on the facts of this case are without support. Napue expressly rejected several of the suggestions, and its logic clearly rejects the last.”

Paysun’s attorneys have not revealed whether they plan to seek Supreme Court review. However, one commentator said, “it seems an obvious avenue of appeal, giving the justices an opportunity to reaffirm the principle they announced in 1959 and in 1972, that the government has a constitutional and ethical obligation to ensure that it speaks out against perjury when it unfolds in the middle of a trial in front of the jury.”

Long v. Pfister, Case No. 13-3327 (7th Cir., Oct. 20, 2017) (en banc)

The Marshall Project, Getting Away with Perjury (Oct. 30, 2017)

– Thomas L. Root


6th Circuit Bans Government Nostrums at Sentencing – Update for October 23, 2017

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


After a federal inmate serves a prison sentence, he or she begins a period known as supervised release. SR is a fancy term for “parole,” except that unlike traditional parole, it doesn’t reduce a sentence. Instead, by law, SR is tacked on to every sentence, even life sentences (which end only with a pine box).

wencelausDPRK171023While on supervised release, an offender is under the thumb of a U.S. Probation Service officer, who has great latitude to either leave the offender largely alone or impose oppression that makes Kim Jong Un look like Good King Wencelaus. While the object of SR is to assist the offender in his or her reintegration into society, one supervising probation officer candidly told us a few years that his district violates a third of all offenders under their supervision.

Upon violation, an offender may be continued on supervision, have supervision extended, or sent back to prison. Because the standard of proof for a supervision violation is much lower than the “reasonable doubt” standard of criminal law and the evidentiary standards are loosey-goosey by comparison to a criminal trial, SR is a Sword of Damocles for ex-offenders trying to get back on their feet.

Of course, there are those offenders – like Ernie Adams, a 71-year old who has been addicted to opiates for 40 years – who just cannot conform. Ernie was on supervised release after serving a drug conspiracy sentence. Unsurprisingly for his addiction history, he failed drug tests three times in as many weeks, and got violated.

What do you expect of an addicted person? It’s a disease. You might as well demand that a person with bronchitis not cough.

fake171023Nevertheless, continued drug use is forbidden by the conditions governing supervised release, and Ernie’s supervised release was revoked. Ernie’s Guidelines range for his SR violation was 21-27 months. At sentencing, the judge talked extensively about Ernie’s substance-abuse problems and rehab failures. The government argued at sentencing that long-term heroin addicts like Ernie needed 18 months for their brain chemistry to “reset” in order for future treatment to be effective. The court nodded in sage agreement to this scientific stat, but cut Ernie a break by sentencing him to 18 months, three months below the bottom of the Guidelines range.

You’d think Ernie would figure he’d dodged the bullet, but you’d be wrong. Ernie appealed, arguing the sentence was procedurally and substantively unreasonable. Last week, the 6th Circuit agreed.

It turns out that the government’s talk about the 18-month brain “reset” was fake science. The government countered, however, that while what it told the court was as phony as phrenology, that did not matter, because Ernie had no right to the government telling the court the truth. Actually, the government’s argument was a little more nuanced than that, contending that a defendant does not have a due-process right “to be sentenced based on accurate information… beyond the facts of the defendant’s own actions and criminal record.”

The government’s argument was as fake as its “science.” The 6th Circuit said “the due-process right to be sentenced based on accurate information is not limited to information solely about the defendant’s actions and criminal history.” Instead, if the bad science embraced by the sentencing court was an “important factor” in calculating Ernie’s sentence, Ernie’s rights were violated.

pseudo171023The Circuit held that the government’s 18-month brain “reset” was “an unsubstantiated assertion that has the veneer of accuracy due to its supposed status as a product of scientific research.” And it was persuasive: the district court told Ernie it had chosen the sentence length “because you need that long to reset and maybe get another, maybe get another chance at remaining clean and sober.” The Circuit concluded “the district court, therefore, violated Adams’s due-process right when it incorporated this unreliable information in its sentencing decision, and thus this sentence is procedurally unreasonable.”

The 6th Circuit said that while it presumes that a sentence below or within the sentencing range is substantively reasonable, that’s not invariable. Here, Ernie argued that the district court imposed a substantively unreasonable sentence because it to impose a sentence of imprisonment and extended the length of the sentence in order to rehabilitate him. The Circuit noted that the Supreme Court has held that extending a sentence in order to rehabilitate is prohibited, and concluded that the sentence – even though it was below-guidelines – was substantively unreasonable.

United States v. Adams, Case No. 16-2786 (6th Cir., Oct. 11, 2017)

– Thomas L. Root


… And Throw Away the Key – Update for January 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.


We have always been fans of the legal aphorism “hard cases make bad law,” but usually it is applied to an individual defendant. Need an excuse for even more draconian hate-crime laws? We give you Dylann Roof. Want to argue against modifying harsh mandatory minimum sentences for drug dealers? How about Wendell Callahan?

kitty170105But when it comes to sex crimes against kids, an entire class of defendant qualifies as a “hard case.” Who does not want to flog people like this? Even before hearing some of the justifications, such as “the 4-year old wanted it.” If any crime engenders a universal response of “lock ‘em up and throw away the key,” it’s child molestation.

That revulsion may explain this week’s U.S. Court of Appeals for the 8th Circuit reversal of a Minnesota district court decision declaring that state’s civil commitment law unconstitutional. After a sexual predator serves his time (and they’re almost always male), what do you do with him? If he’s still a predator, you subject him to civil commitment, which is nothing but a continuation of prison in mufti. The district court concluded that the Minnesita civil commitment statute was so bereft of reasonable procedures that would let a civil inmate petition for release that it was unconstitutional on its face.

    How to keep them off the streets…

The Court of Appeals first, and maybe most significantly, disagreed that people “possess a fundamental liberty interest in freedom from physical restraint.” Because of this, the Court said, the Minnesota statute would be constitutional if it only bore a rational relationship to Minnesota’s legitimate interests in keeping people it deemed dangerous   off the streets.

The Court of Appeals quoted a prior Supreme Court decision that held

although freedom from physical restraint ‘has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action,’ that liberty interest is not absolute. ‘The Court noted that many states provide for the involuntary civil commitment of people who are unable to control their behavior and pose a threat to public health and safety, and ‘it thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty’. When considering the due process implications of a civil commitment case, the Supreme Court stated ‘at the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.’

The Circuit said the Minnesota statute provides “proper procedures and evidentiary standards’ for a committed person to petition for a reduction in his custody or his release from confinement. A committed person can file a petition for reduction in custody. The petition is considered by a special review board consisting of experts in mental illness and at least one attorney. That panel conducts a hearing and issues a report with recommendations to a judicial appeal panel consisting of Minnesota district judges appointed to the judicial appeal panel by the Chief Justice of the Supreme Court. Through this process, the committed person “has the right to be represented by counsel” and the court “shall appoint a qualified attorney to represent the committed person if neither the committed person nor other provide counsel.” And the committed person may file a new petition six months after the prior petition is concluded.

confederate170105The U.S. government and the 50 states have concluded that child sex predators are dangerous to society. And no one would disagree. But these mutts are “hard cases.” Where do we stop? Guys with obvious anger issues like Wendell Callahan – not to mention a predisposition to resume a drug-dealing life – are likewise a threat. Certainly, people spewing racial hatred like Dylann Roof are a threat to society, too, whether they shoot up a church or just fly a Confederate saltire from the bed of their rusty pickup truck. Perhaps these people ought to be committed as well. As well as people who think Sharia law is peachy, or that gays are going to hell.

The point is that about the only thing that protects us from the tyranny of the majority view, and from being punished because our views are seen by the hoi polloi as being odious, is our fundamental rights. We’ve never been fans of the doctrine of substantive due process – mainly because we could never see any constitutional justification for claiming it exists – but substantive due process right have their utility. We are at a loss to understand how Obergefell v. Hodges could find that gay marriage is a fundamental right accorded 14th Amendment protection, but the right to be free of physical restraint is not.

tyranny170105If the right to be free of restraint is a fundamental one, that doesn’t mean that Peter Pervert can’t be civilly committed. Rather, it just means that the process by which he is locked up, treated and continually detained would be subject to strict scrutiny.

Karsjens v. Johnson Piper, Case No. 15-3485 (8th Cir. Jan. 3, 2017)

– Thomas L. Root