Officer who took documents from defense attorney’s file during hearing ordered only to apologize

What should be the penalty for an officer who removes confidential legal material from a defense attorney’s file in the courtroom during the proceedings? In Arizona, apparently it is to be held in contempt of court, but only required to apologize.

This punishment does nothing but minimize the seriousness of the conduct here. The Officer stole legally privileged documents from counsel’s for no good reason. I hope the people in Arizona voice their outrage.

1993 murder convictions vacated because the prosecuction let its witness give misleading answers

In People v. Colon and People v. Ortiz, New York’s highest court vacated the defendants convictions because the prosecution at the initial trial failed to correct misleading testimony by one of its witnesses

In doing so, the Court of Appeals noted that prosecutors “must deal fairly with the accused and be candid with the courts” People v Steadman, 82 NY2d 1, 7 (1993). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no “reasonable possibility” that the error contributed to the conviction. People v Pressley, 91 NY2d 825, 827 (1997); see also Steadman, 82 NY2d at 8-9.

During the trial, the prosecution questioned its witness about any benefits he received in exchange for his testimony. However, the witness’s answer did not recount all of the favorable treatment he had gotten. Rather than correct the testimony, the prosecutor let the answer stand and repeatedly referred to it throughout the case.

This case once again emphasizes that the role of a prosecutor is not simply to win. Rather, the prosecution is tasked with making sure that the proceedings are fair.

New York State to toughen drunk-driving law

The New York State Senate unanimously passed legislation that makes New York State’s drunk-driving law some of the toughest in the nation. Gov. David Paterson has said he will sign the bill, which makes it a felony to drive with a passenger under 15 while intoxicated with a blood-alcohol-content level above the legal-limit. Under current law, there is no additional penalty if a drunk driver has a child passenger. The penalty would be even harsher if a child passenger is injured in a drunken-driving accident.

Why the right to counsel must be respected

As discussed in more detail by Prof. Doug Berman at his Sentencing Law and Policy blog, Attorney General Holder spoke recently at the Brennan Center for Justice about the level of representation afforded to indigent defendants.

In that speech, AG Holder cited instances of defendants waiting in jail for weeks or months before finally being assigned a lawyer, and other instances of defendants entering guilty pleas without ever speaking to an attorney. These are not isolated instances, but systemic problems. These instances are nothing less than an actual denial of the right to counsel and should horrify even the most “tough on crime” people.

AG Holder also discussed the problem of overloaded public defenders and the inevitable degradation in the level of representation which results in a constructive denial of the right to counsel.

I have reviewed many trial transcripts where it was quite clear that the defense attorney was not able to put forth all the relevant arguments for the defendant and was unaware of the most basic procedural rules – due to either lack of knowledge or simple lack of preparation. While I certainly fault those attorneys for not recognizing their limitations, I also fault the judges (who are charged with ensuring that the proceedings are fair) and the prosecutors (who should be just as concerned that a defendant is not adequately represented as they are in gaining a conviction).

Every participant in a criminal trial – judge, prosecutor, defense attorney – should be willing and able to point out inadequate representation so that we can all have confidence in the system we have created.

Crack guidelines and Equal Protection

In an unpublished Summary Order, the Second Circuit said, yet again, that the 100-to-1 powder to crack cocaine ratio employed by the Sentencing Guidelines does not violate the Equal Protection Clause of the Fifth Amendment because it is rationally related to the legitimate governmental interest of protecting the public against the greater dangers of crack. Citing, e.g., United States v. Stevens, 19 F.3d 93, 26 97 (2d Cir. 1994) (“[W]e join six other circuits that have similarly held that the Guidelines’ 100 to 1 ratio of powder cocaine to crack cocaine has a rational basis and does not violate equal protection principles.”); United States v. Samas, 561 F.3d 108, 110 (2d Cir. 2009); United States v. Lee, 523 F.3d 104, 106 (2d Cir. 2008) (“It is not apparent to us that the principles set forth in Kimbrough [v. United States, 552 U.S. 85 (2007)] have any application to mandatory minimum sentences imposed by statute.”)

What does this mean?  Nothing new.  This argument has been made and rejected for years.  The real battle now is over revising the Guidelines to use a 1:1 ratio and getting rid of mandatory minimum sentences.

DOJ supports eliminating crack/powder sentencing disparity

On April 29, 2009, Lanny A. Breuer, Assistant Attorney General, testified before the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs, and stated that “[t]he Administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” This statement is the next step in the years-long battle to address the unfair impact of the Sentencing Guidelines treating crack cocaine more harshly than powder cocaine. His testimony can be found here.

Second Circuit – US v. Williams

In United States v. Williams, the Second Circuit held that a defendant was exempt from the five-year mandatory minimum consecutive sentence for a firearm offense because he was already subject to a longer ten-year minimum sentence for the predicate drug trafficking crime.  The Court agreed that Section 841(b)(1)(A) is “any other provision of law” that “otherwise provide[s]” “a greater minimum sentence,” 18 U.S.C. § 924(c)(1)(A), so that the five-year minimum for possession of a firearm under Section 924(c)(1)(A)(i) did not apply.

NY Court of Appeals – People v. Quinones

In People v. Quinones, which can be found by clicking here, the New York State Court of Appeals again upheld the constitutionality of the discretionary persistent felony offender sentencing scheme.  The Court again explained that under New York’s scheme, a defendant is subject to an enhanced sentence based solely on the existence of two prior felony convictions – which places New York’s scheme outside the scope of Apprendi. Another distinguishing feature of New York’s sentencing scheme is that it is only after a defendant’s eligibility for an enhanced sentence is determined that a judge is given the discretion to choose the appropriate sentence within a sentencing range prescribed by statute.  Notably, the Court made no mention of the recent Federal Court decisions finding the statute unconstitutional.