In an order dated March 11, 2013, the district court found that the government had not carried its burden to show that ballistics identification is a “science,” and also failed to establish that the expert had a reliable basis for testifying that the ballistics match could be stated with any degree of certainty (“when pressed on the issue, [the witness] admitted that the determination of whether or not a match existed is a subjective determination that the quality and quantity of similar markings on two shell casings is sufficient. He was unable to articulate a definition or standard for measuring ‘sufficiency,’ but, in essence, testified that he ‘knows it when he sees it’ based on his experience and training.”).

Based on those findings, the district court prohibited the witness from referring to his methods as “science or scientific,” or “using language that implies a specific degree of certainty as to his conclusion that there is a match between the shell casings.” Instead, the witness would be limited to explaining how markings are created on shell casings, the methods of comparison he used, and his opinion that the casings all came from the same gun.

During that same period, 3,586 new criminal cases were filed in the district courts within the Second Circuit, bringing the total of number of criminal cases pending in those courts to 7,916 – a 2.2% increase from the prior 12-month period.

UPDATE:

The numbers for the fiscal year ending September 30, 2012 are out. In that 12-month period: 842 new criminal cases were opened in the Second Circuit, 189 were terminated for procedural reasons, and 563 were decided on the merits. Of those 563 cases decided on the merits, 360 were affirmed, 88 were dismissed, 52 were reversed, and 9 were remanded (54 were disposed of by consolidation) – yielding a reversal rate of 9.2% (The overall reversal rate for criminal cases in the Circuit Courts was 7.0% – the Seventh Circuit again led the way with a rate of 15.8% and the Tenth Circuit dropped even further behind the average to just 1.3%).

Also noteworthy: there were 229,188 representations by counsel under the Criminal Justice Act (assignments for indigent defendants who can’t afford counsel) – an increase of 10% over the prior year.

*      Tables for criminal cases commenced in the district court are no longer being produced.

In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court explained that “overriding considerations of public safety [may] justify [an] officer’s failure to provide Miranda warnings before he ask[s] questions devoted to  locating [an] abandoned weapon.” Later, in United States v. Estrada, 430 F.3d 606 (2d Cir. 2005), the Second Circuit looked to three factors in making that determination: (1) whether the questioning related to an objectively reasonable need to protect the police or public from an immediate danger, (2) whether an objected observer would believe the questioning was a subterfuge meant to elicit evidence from a suspect, and (3) that the questions were not routinely asked to arrested suspects but instead showed an intent to protect against a perceived danger.

The officer who interrogated Ferguson had previously heard he possessed a firearm and the 911 call reported that a firearm had been fired. But no weapon was recovered when Ferguson was arrested and the officer’s questions were “rationally related to the objective of securing public safety by locating the gun.” Thus, the Court found, the interrogation was within the scope of Estrada.

While recognizing that the passage of time between an arrest and an interrogation may “diminish the immediacy of threat posed by an unaccounted-for firearm,” the Court ultimately concluded that, in this case, it “did not diminish the officers’ objectively reasonable need to protect the public from the realistic possibility that Ferguson had hidden his gun in public, creating an imminent threat to public safety.”

As the Times opined, “Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.”

Not discussed in that editorial is that these waiver provisions also preclude an appeal when the judge doesn’t follow the law when imposing the sentence. An example can be found in United States v. Bussiereth, where the Second Circuit dismissed the appeal (based on a waiver) even while agreeing that the judge did not comply with the statutory requirements when sentencing Mr. Bussiereth. As the Second Circuit explained: “While Buissereth’s appeal waiver did not relieve the District Court of its responsibility to follow the procedural requirements related to the imposition of a sentence, the appeal waiver does preclude this Court from correcting the errors alleged to have occurred below.”

And that is why these waivers are so dangerous — sentencing someone to prison should not be a casual affair. Rules should be followed and rights must be protected. But these waiver provisions mean that a judge can disregard almost any laws or procedures without consequence so long as the sentence imposed is within the scope of the waiver provision.

And if we allow that, the integrity of our entire criminal justice system should be questioned.

First, in Missouri v. Frye, the Court explained that “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Thus, “[i]n today’s criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” Because guilty pleas are “so central to today’s criminal justice system . . ., defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel that the Sixth Amendment requires at critical stages of the criminal process.”

The Court then went on to hold that “[a]s a general rule, defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused.” If an attorney fails to do so and the plea offer expires or is rejected, a defendant can show prejudice (and establish a Sixth Amendment claim) by demonstrating “a reasonable probability both that they would have accepted the more favorable plea offer had they been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it.”

Next, in Lafler v. Cooper, the Court addressed the burden for a defendant who is convicted after trial but had rejected a plea offer based on objectively bad advice from counsel. To establish a Sixth Amendment violation, the defendant must prove a reasonable probability that the plea would have been accepted and the sentence would have been less severe than that which was actually imposed.

However, the Court also found that venue was proper for two counts of conspiring to commit securities fraud. Because the travel allowed the defendants to make false statements to investors in person, the flights were overt acts in furtherance of those conspiracies.

While the Court opined that the sentencing hearing “left much to be desired” because an appellate waiver does not relieve a sentencing court of its responsibility to comply with the procedural requirements for sentencing, it ultimately held that the appellate waiver precluded the Court from correcting the errors and dismissed the appeal.

Greer was arrested after police found ammunition in a car they believed Greer had been driving. The car contained documents with Greer’s name on them but had been rented by someone named Tangela. At the time of his arrest, police noted that Greer had the name Tangela tattooed on his arm. At trial, the government had the arresting officer describe Greer’s appearance at the time of arrest – including what Greer’s tattoos said.

Because the government relied on the content of the tattoo to prove a fact, the evidence was “testimonial.” Further because the evidence linked the defendant to the automobile (and the ammunition that was inside of it), it was also incriminating. Thus, its introduction implicated Greer’s Fifth Amendment right against self incrimination.

However, because the tattoo was not compelled by the government, there was no Fifth Amendment violation.

The majority relied heavily on the standard of review, noting that Federal Courts are “bound by [the New York State Court of Appeals’s] construction of New York law in conducting our analysis” and that New York courts have “interpreted the statute to authorize [the increased] sentence based on the defendant’s predicate felony convictions alone.”

As summed up by the majority, “the PFO statute — as interpreted by the New York Court of Appeals — creates a recidivist sentencing scheme in which the only factual predicates necessary to impose the enhanced sentence relate to the defendant’s criminal history. Unlike in Blakely and Cunningham, recidivism findings are the touchstone: the predicate felonies alone expand the indeterminate sentencing range within which the judge has the discretion to operate, and that discretion is cabined only by an assessment of defendant’s criminal history.”

The dissent argued that the majority opinion showed “only that the PFO statute can be applied in a constitutional manner,” but not that it actually was (or continues to be). Further, the dissent noted that the arguments relied on by the majority (regarding the maximum sentence for Apprendi purposes) were the same ones rejected in Blakely and Cunningham.

The Department of Justice won’t disclose whether any prosecutors have been punished as a result of internal ethics investigations, citing privacy rights. However, the DOJ’s attitude might be illustrated by its handling of two federal prosecutors who failed to disclose impeachment evidence about a key government witness. The Seventh Circuit Court of Appeals concluded that the prosecutors “deliberately misled the court and defense counsel.” The DOJ’s response: each prosecutor was suspended for one day.