In an important decision that has significant ramifications for a wide array of criminal cases, the Supreme Court has come forward with a new opinion addressing the Fourth Amendment’s bar on unreasonable searches. The case in question is Florida v. Jardines, No. 11-564, __ U.S. __, 2013 U.S. LEXIS 2542 (Mar. 26, 2013). Jardines is a case in which police officers, who were acting on what is described as an “unverified tip”, brought a drug-sniffing dog onto the porch of the defendant’s home, doing so without a search warrant. The dog, once on the porch, altered the police that marijuana was being used inside the house. The issue before the Court was whether the police had conducted a warrant-less “search” by bringing the drug-sniffing dog onto the porch and using it in the manner it had been used. 2013 U.S. LEXIS 2542 at *3-4.
First, some context. Prior to 1967 the Supreme Court abandoned had viewed the prohibition on unreasonable searches in light of trespass and property laws — but in 1967 in Katz v. United States, 389 U.S. 347 (1967), the Court chose to focus on the public’s reasonable expectation of privacy. The “reasonable expectations” test may well have been designed to provide greater protection than a test which has its basis in property law — but the “reasonable expectation” test created its own set of problems by making the Justice’s subjective views about privacy the focus, resulting over time in what many consider to be diminished Fourth Amendment protection.
Another bit of context is a case that has relevance when evaluating the Jardines decision. That case is United States v. Jones, __ U.S. __, 132 S. Ct. 945 (2012). In Jones, the Court held that installing a GPS device on a the vehicle of a suspect in a criminal case and using that device either to monitor movements or to gain any other information, constituted a Fourth Amendment “search”. Id. at 949, 951 n.5. In writing the majority opinion, Justice Scalia reasoned that if placing the GPS device would have constituted a trespass under common law, then it also must be considered a search under the Fourth Amendment.Id. at 949.
In Jardines, the Court reviewed and reaffirmed the concept that the “curtilage” of a house — i.e. a porch, garden, etc — is part of the house itself as far as Fourth Amendment considerations are concerned. The Court noted that it “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity”. Id at 7-9. Having thus established that the search took place in a constitutionally protected area, the analysis then moved to the question of whether the dog sniffing investigation ” was accomplished through an unlicensed physical intrusion.” Id. at *9. The key question was whether the intrusion was “licensed.”
In its analysis of the “license”, the Court found that in the absence of other concrete law, a license to enter may be “implied from the habits of the country”. In the United States, there is an “implicit license for a visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Id. at *10-11 (quoting McKee v. Gratz, 260 U.S. 127, 136 (1922)). It then follows that the police have the same general rights and may approach a home and knock on the front door. But, the Court held, this right does not extend to the visitor or the police having the right to “explore the area around the home in hopes of discovering incriminating evidence.” Id. at *12.
Writing at the California Attorney’s For Criminal Justice website, Ted Cassman and Raphael Goldman sum it up nicely:
To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police. The scope of a license — express or implied — is limited not only to a particular area but also to a specific purpose.Id . (footnote omitted). When the officers brought a dog onto the curtilage to sniff for incriminating evidence, they violated the common-law rules of trespass and therefore conducted a “search” within the meaning of the Fourth Amendment. Id. at *14-15, 17.
Another interesting aspect of this decision is that although it was a 5-4 split decision, all justices accepted the opinion’s core reliance on trespass law. The dissent focused on the much more specific question — was the conduct “licensed”?
The bottom line: Jardines suggests that virtually the entire Supreme Court supports what amounts to a new era of Fourth Amendment jurisprudence in which trespass principles can be used in addition to the tried and true expectation-of-privacy principles. By making the question of whether government action constitutes a search more concrete and less subject to subjective and even circular interpretation, the resurrection of the link between searches and property is a substantial step toward this end.
A little more than fifty years ago the Supreme Court, in Gideon v. Wainwright, affirmed that anyone charged with a crime has the right to counsel and that the state is obliged to ensure that this right is respected. Stephen B. Bright, who is one of the most respected lawyers in the country (he is (President and Senior Counsel at the Southern Center for Human Rights plus Visiting Law Lecturer at Yale Law School) and Sia M. Sanneh (Senior Limon Fell, Yale Law) argue that this right, which should be considered sacred in 2013 America, is being largely ignored, with violations every day in different parts of the country.
Their point is not that these individuals have no lawyer assigned to them — they do. But do they actually have quality defense as envisioned in Gideon v. Wainwright? They describe a courtroom in which a 17 year old defendant, charged with stealing a go-kart, enters a guilty plea to felony theft then, when the judge asked if he was satisfied with his lawyer, appeared confused and said — “I don’t have a lawyer.” It turned out he had spoken for three minutes to a public defender who had recommended he plea guilty.
Bright and Sanneh write:
In the same courtroom that day, other people who pleaded guilty had spoken to a lawyer for only three to five minutes before entering a plea and being sentenced. Still others pleaded guilty after speaking to only a prosecutor, without even consulting with a defense lawyer.
Guilty pleas account for about 95% of all criminal convictions. In many courts, poor people are processed through the courts without lawyers or moments after speaking for a few minutes with lawyers they just met and will never see again. This is called “meet ‘em and plead ‘em” or “McJustice.”
The article goes on to detail the degree to which persons accused of crimes often have either no lawyer at all, or are assigned one who spends no more than the time it takes to drink a cup of coffee in preparation–lawyers that are equal parts underpaid, overworked, and unqualified.
The two are not the only ones who have spoken out. As far back as 2004 the ABA reached ”the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation.” Nothing has improved since that time — in fact, the situation has worsened.
The question is — is this the kind of justice that the founding fathers had in mind? And if not, what can be done?
First, at the level of the individual criminal defendant — what can you do if you are accused of a crime, don’t have the funds to hire a lawyer, and are assigned ineffective counsel? Answer: Make some noise. Don’t accept an overworked, uninterested lawyer who simply says “you’d better plea out” and that’s all you get from him.
Virtually every case has the potential for either a defense, or a reduced plea, or other avenue that is to the benefit of the defendant but which can only be achieved with an actual investment of time from the attorney. Just because the attorney appears busy and tries to move you along quickly through the system — this doesn’t mean you have to go along with the railroading.
You have the Supreme Court on your side — because the highest court in the land says you are entitled to “effective counsel”, and “plead and go” criminal defense doesn’t come close to that standard.
Any serious attempt to understand the criminal justice system in the United States must include taking a serious look at the mandatory sentencing regime that is now in place, and has been in place for decades, and which is viewed by many a failed experiment.
Let’s start by rolling the clock back fifty years. In those days, the US prison population was an tiny fraction of what it is today. How much is the difference? According to a report by JURIST, the magnitude of the increase is 800% since 1970. That’s right — eight hundred percent since 1979. In 1970 there were fewer than 200,000 Americans in prison. That number had grown to 1.6 Million in 2006 in state and federal prisons around the country.
And that’s not the whole story. There are another 750,000 in local and county jails — so that put the figure at around 2.3 million in 2006. Comparisons? Well, consider China. Everybody knows that China has huge numbers of its citizens in prison, right? Wrong.
Or rather, wrong if you compare it to the United States on a per capita basis. China, with its huge population, only has 1.5 million locked up. Here’s the number that tells it all. The US is #1 in the world in something — that something is the number of citizens locked up per 100,000 persons. The US locks up 737 people for every 100,000 citizens. That puts the US “comfortably” ahead of Russia, who is in second place with 581 per 100,0000. If you check all the western democracies, you’ll see that all of them have far, far lower numbers.
Here’s another prison statistic jaw dropper. Just considering the period from 1997-2004, women in prison in the United States increased by 757 percent. That’s an eight-fold increase in in seven years. What’s going on?
Here’s another stat: Crime across the country has been going down dramatically, while prison populations continue to rise. Does this mean that draconian incarceration policies are working? Is this “lock’em all up” mentality driving crime down?
JURIST writes that “zealous prosecution and tough sentencing guidelines have done little to curb crime. In fact, most scientific evidence suggests that there is little correlation between fluctuations in crime rate and the rate of incarceration.”
Meanwhile, the huge increase in the prison population is happening in an era where there are few new prisons being built, creating a massive amount of pressure on state budgets and federal budgets.
So what is driving this?
The Mandatory Sentencing Regime
To understand the roots of today’s prison problem, you have to go back to the 1960′s — a tempestuous decade that saw racial and social unrest reach epic proportions. It was the decade of Vietnam, civil rights, and the full flowering of the drug culture that rocked the establishment. In the decades that followed, “get tough on crime” became a platform that worked for many politicians.
In middle America there was a perception of chaos on the streets, and the result was a discernible “turn to the right” on law and order issues. Many would argue that in the penal system, the old model of custodial incarceration as rehabilitation would give way to the concept of retribution, with penal existence being the “just desserts” earned by the prisoner.
Writes Douglas A. Kelley writes:
For most of our country’s history, the primary role in sentencing was vested in the district court. Congress provided maximum terms of incarceration but allowed federal judges unbounded discretion to sentence offenders from probation, no time at all, to the statutory limit. Recognizing that the typical defendant would serve one-third of the sentence, the judge — with input from prosecutor, the defense, and the probation officer — would fashion the sentence to fit the individual and the crime. Judges were not required to give reasons for their sentences, and so long as they stayed within the statutory maximums, their sentences were not subject to appeal.
Everything was about to change. Federal judge Marvin Frankel famously blasted the system, calling it “arbitrary and discriminatory”, and proposed that the justice department convene a commission on sentencing to study the problem. The idea took root in congress, where Senator Edward M. Kennedy, among others, embraced it. A Bipartisan bill sponsored by Kennedy and Republican Senator Strom Thurmond was passed into law in 1984, establishing the U.S. Sentencing Commission, which it charged with setting and promulgating a new set of Sentencing Guidelines.
The Commission conducted a substantial amount of research, and the end result of its work was a set of Sentencing Guidelines designed to address “the need to avoid unwanted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
Enter the concept of uniform sentencing.
On the positive side — disparities would theoretically disappear. But the new regime meant zero flexibility for judges. U.S. District Court judges, who had previously been empowered to make judgment calls, were now required to issue sentences in alignment with the guidelines. In the “get tough on crime” atmosphere of the day, the result was less “fairness and uniformity” than the original proponents had sought. ”Draconian” became the norm. ”Three strikes” laws were adopted in many states — one of them being California. Sentences began to rise.
In 2005, the problem was finally such that a case rose to the level of the Supreme Court. In United States v. Booker, 543 U.S. 220 (2005), the Court changed the regime by making the guidelines advisory, not mandatory. This decision went a long way toward restoring for U.S. District Court judges the notion of discretion exercised from the bench in arriving at an appropriate sentence.
The Booker Effect
Largely as a result of Booker, skilled defense teams are now able to negotiate far more reasonable sentences for their clients than was previously the case under the mandatory sentencing regime. Now it is possible for strong defense teams to introduce key mitigating information that the judge must consider in arriving at a sentence. If you were abused in childhood, it matters. If you come from a situation where there was lax parental supervision over you as a child, it matters. Or if you come from a traditional “good family” and have been a productive member of society up until the time of your criminal offense — that matters too.
America is still the number one prison state in the world. Our problems haven’t been solved. But today, if you are charged with a criminal offense, a good defense attorney can make sure that you are presented to the judge at sentencing in a way that increases the likelihood that your sentence will be a fair one, and your time in custody will be as short as possible — and far shorter than would have been the case under the mandatory sentencing regime.
The Steubenville rape case has all the elements a case needs to make the national headlines — high school football heroes, drunken partying, plus a full dose of social media chatter including Facebook, Twitter, and Youtube.
Is there anything significant from a legal perspective? A warning to be observed? Lesson to be learned? Let’s see.
The judge in the case, Thomas Lipps found defendants Trent Mays and Ma’lik Richmond “delinquent” on all three charges, a verdict that is the juvenile equivalent of “guilty” . The court found that the defendants had “digitally penetrated” the victim, initially in the back seat of a car, and later in the basement of a house, and had illegally used the image of a minor in nudity oriented material.
The victim had consumed substantial quantities of alcohol and had no recollection of the penetration — however social media chatter including photographs had led to an abundance of documentary evidence. Among the issues that swirled around the case — should more students have been charged? Did the football team and its boosters have an undue level of influence throughout the community?
As the trial unfolded, a core issue being litigated was whether the victim was so drunk that she had no capacity for legitimate consent, as argued by the prosecution, or whether she was drunk, but had knowledge of her actions and a reasonable ability to control them. In her testimony, the victim testified that she had no clear memory of the events of the night on which the assault occured, but remembered waking up in an unfamiliar house, naked, hours later.
She said that she recalled drinking, throwing up, and leaving the party with Mays, holding hands. She testified that after waking up, she noticed that her underwear was missing, along with her phone, earrings, and shoes.
It was only later when she started seeing text messages sent by her high school classmates, and then saw a photo of her from the night, and a video, that she became convinced of the assault. In her testimony she claimed that she felt she must have been drugged – as simple drinking did not explain the degree of impairment she suffered.
Social Media Gone Wild
An astonishing (to anyone but a teen) amount of social media evidence was accumulated by the prosecution. Graphic text messages were sent by numerous students both during and after the party, some of them sent by the girl who was assaulted, filled with what obscene, graphically descriptive language describing various sexual acts.
In all, tens of thousands of texts were confiscated from a total of 17 phones seized as part of the investigation. This, coupled with the photos and Youtube videos, provided the prosecution with a bonanza of social media generated evidence that proved crucial to the case being made by the prosecution. One text message stating that the victim was “like a dead body”, and another one stating that “she could barely move” were both introduced as major elements in the prosecution case.
Accusations of a Coverup
Three other boys, two of them members of the football team, added to the social media extravaganza by photographing various aspects of the events of the night while failing to make any effort to stop the assault. Despite a groundswell of public opinion against the three, the prosecution instead granted the three teens immunity to testify — testimony which proved to be material to the prosecution case and may have led to a tipping point against the defendants. These witnesses confirmed that the girl was incapacitated due to her inebriated state, and that he was digitally penetrated in the car and in the basement.
This is a case that would likely not have been pursued even a few decades ago. It was the plethora of social media information — texts, photos, and videos — that created a “documentary” environment that did not exist in prior decades.
The fact that a crime had occurred was established not by the victim’s memory — but by the way she was featured in online photos and posts. The teens involved in the events of the evening seemed to have no inkling that they were documenting a crime, and their casual recording and dissemination of the crucial pieces of evidence ended up playing a critical role in the way the case played out.
One key lesson: Nowadays, we should always assume that we are likely to be videotaped when we are in any kind of public gathering, or even a private party where cellphones are present.
Secondly it’s important to remember that all the mechanisms of social media that we use today — whether it is text, facebook, twitter, or any other social media platform — do not vanish into the ether in the way that a spoken phone conversation does. They are permanent, and if you don’t want something you text, tweet, or type to come back and haunt you — then don’t text it, tweet it, or type it.
Last week Attorney General Eric Holder was grilled by the Senate Judicial Committee on everything from drones to white collar crime policy, and in the latter category was asked by Senator John Cornyn (R) of Texas about the DOJ’s prosecution of Aaron Swartz, a programmer and internet activist who faced as much as 50 years in jail for downloading free files. Among the many charges, Swartz was charged under the computer Fraud and Abuse Act for using MIT’s computer network in ways that violated the act by downloading millions of articles from JSTOR, a subscription database, with the intention of making these files more generally available to the public — not for gain or profit, but for reasons relating to the free flow and availability of information.
Facing these charges, and unwilling to compromise his values by entering a guilty plea that would have reduced the sentence to five months (but would have stained him as a felon for life), Swartz committed suicide, hanging himself in his apartment.
Swartz’s profile was anything but that of a willful computer hacker. He was a brilliant young American involved in the creation and development of the web feed format known as RSS; he had helped create the social news site Reddit, and was a research fellow at Harvard University’s Edmond J. Safra Research Lab. He founded the online group Demand Progress, which fought against internet piracy, and by all accounts was a conscientious, principled individual — which may be what led to his suicide.
The Justice Department “threw the book” at Swartz for illegal downloading of files, eventually putting him at risk for as much as 50 years in prison. Friends, family, and colleagues have all argued that the charges he was facing were vastly out of proportion to the alleged crime.
Cornyn put it well when he said: ““If you’re an individual American citizen, and you’re looking at criminal charges being brought by the United States government, with all of the vast resources available to the government, it strikes me as disproportionate, and one that is basically being used inappropriately, to try to bully someone into pleading guilty to something that strikes me as rather minor.”
In his testimony, Holder said: “There was never an intention for him to go to jail for longer than a three, four, potentially five-month range.”
That led to this exchange:
Cornyn: So you don’t consider this a case of prosecutorial overreach or misconduct?
Holder: No, I don’t look at what necessarily was charged as much as what was offered, in terms of how the case might have been resolved.
As a criminal defense attorney, this strikes me as just plain wrong.
Of course the Attorney General should be looking at what was charged. What the Justice Department appears to have done in this case is pursue a position of “overwhelming force”. But the doctrine of “overwhelming force” is a doctrine appropriate for the Defense Department against foreign enemies — not the Justice Department in its dealings with US citizens. In a military encounter the objective is to win with as little cost in “blood and treasure” as possible — hence overwhelming force. But in a Justice Department encounter with an American citizen, the objective is not to win at all costs – it is to achieve justice. How is justice served by amplifying charges absurdly so as to coerce a plea deal, and in the process losing all sense of proportionality?
As a result of prosecutorial overreach, Swartz faced a situation with no good or fair options. His conscience dictated that he fight the charges but the Justice Department raised the stakes unconscionably. If he fought and lost — he had his entire productive life to lose. On the other hand, if he allowed himself to be coerced into a plea deal, he had his honor to lose — and in this case, as it turned out, honor meant a lot.
Further, I doubt that Holder’s statement that the Justice Department never intended more than a six month sentence squares with what would have been the likely Prosecution position re sentencing had the government prevailed. By pursuing charges with a fifty years maximum sentence, the prosecution would have looked foolish settling for six months after victory. It is much more likely that they would have sought a sentence for something at least within the applicable sentencing guidelines, which would have been in the range of seven years.
It is not my intention to condemn the government for prosecuting Swartz. I condemn the unnecessary escalation that was clearly designed to induce the defendant to fold in the face of an overwhelming show of force by the government. Who in their right mind, the government clearly thought, would risk 50 years when they are being offered five months?
He will fold.
And in a sad way they were right. Aaron Swartz wasn’t prepared to go to court facing a fifty year sentence. But neither was he prepared to sign a plea deal branding himself as guilty, a felon for life.
Justice was not served, and Aaron Swartz is dead.
A warrant is required to conduct surveillance on an individual under the Fourth Amendment. This valid warrant protects a person from “unlawful search and seizure.”
But how law enforcement increasingly monitors individuals using GPS tracking devices and other forms of technology is coming under scrutinty. The U.S. Supreme Court will hear a case in October that could determine our future in how investigators can conduct surveillance using technology, specifically GPS tracking.
When are electronic or other forms of surveillance of an individual considered a search under the Fourth Amendment? Defense attorneys and privacy rights advocates are closely following this case during the fall term.
The Court could determine that search warrants are not required for electronic or other forms of surveillance. Arkansas-based attorney John Wesley Hall is concerns that this type of ruling could hail “the technological death of the Fourth Amendment.”
The Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Supreme Court will be reviewing a 2004 case in which a suspected drug trafficker, Antoine Jones, was closely monitored by FBI agents and officers of the Washington, D.C. Metropolitan Police Department, using various forms of electronic and technological tracking.
Investigators not only used traditional surveillance methods but also placed a fixed camera on a corner near a club that Jones owned at the time, wired his cell phone, using an interceptor and pen register, an electronic device that records outgoing phone numbers, and GPS tracking. The GPS device was installed in Jones’ wife’s Jeep Cherokee.
Specifically how they used the GPS tracking device is the main focus of the case before the Court. Investigators did obtain a warrant covering a 10-day tracking period inside the District of Columbia. The issue stems from the fact that officers installed the device after the 10-day window had expired and where they performed the installation. The GPS installation occurred in a public parking lot in Maryland.
The GPS data provided around the clock surveillance of Jones’ movements over the next month and was significant in tying him to a large amount of drugs, concealed in a house in Maryland.
In October 2005, agents executed search warrants for several locations, including the Jeep and the Maryland stash house. Officers recovered large amounts of cash, and large quantities of powder and crack cocaine. Jones was eventually convicted on a charge of conspiring to sell drugs and was sentenced to life in prison.
Jones appealed his conviction, arguing that the prolonged GPS surveillance, without a valid warrant, constituted an illegal search.
In 2010, the D.C. Circuit Court of Appeals ruled in Jones’ favor saying that he had a “reasonable expectation” of privacy because all of his movements over a prolonged period were not actually “exposed” to the public.
The U.S. Supreme Court had previously ruled in 1967, in Katz v. U.S., that what a person “knowingly exposes to the public” is not subject to Fourth Amendment protection.
But the GPS 24/7 tracking an individual’s movements contrasts starkly with that exception.
The D.C. court ruled that the type of satellite-guided surveillance used in the Jones case — and available only because of advancements in technology over the last decade — is different from previous cases decided by the courts, including the Supreme Court.
The earlier Court decision declared that individuals had a decreased expectation of privacy in their discrete travels on public roads, and that law enforcement agencies therefore do not need a warrant in order to augment their ability to physically track those discrete movements.
I’ll be following up with the Court’s ruling in October during the fall term. It will be interesting to see how the Court proceeds.
I’ve been a member as well as a leader of this terrific group for years. The National Association of Crime Defense Lawyers (or NACDL, works diligently to protect client’s rides across the United States. Without this group and other important associations, I shudder to think what would happen to all of us. In our pop culture, there is a misconception that the guy on the TV show who has to get a lawyer, must of done something wrong.
You’d be surprised and sickened at how American’s rights are abused every day. That’s why the NACDL exists. Without such groups, laws could be augmented and no one would be able to lift a Finger. We consistently review and test cases within our group so that we can give the best counsel to our clients. You get the benefit of the hard work of this group.
The NACDL meets regularly to review, debate and dissect the law and test it for strengths and weaknesses. Recently, at our 1st Annual West Coast White Collar Conference, we gathered to review a hypothetical company which had a deferred prosecution agreement with SEC/DOJ involving small value facilitation payments which were actually bribes.
Marc Rochon, Mary Carter Andrues, Pamela David, Jeffrey Know and C.E. Rhodes moderated the discussion.
The hypothetical case study involved an email sent to the fictitious company’s auditing committee by a sales agent in Egypt alleging the bribes are taking place.
The following is Darin Thompson’s recount of the test case reviewed by the NACDL. Mr. Thompson is Assistant Federal Public Defender in Cleveland, OH.
Following the disclosure to the audit committee, outside counsel is retained, and (due to the deferred prosecution agreement) DOJ/SEC needs to be informed of the situation.
Mr. Rhodes indicated that the company should retain counsel for the whistleblower in response to hypothetical questions involving that individual’s exposure and rights.
Ms. Andrues, acting as counsel for the hypothetical whistleblower, reviewed the information she would want to have access to, and the potential issues she would need to address, including the relevant law in the foreign country (Egypt) that could impact the investigation.
Mr. Knox indicated that he (acting as hypothetical prosecutor) would potentially provide background information to counsel for the whistleblower. However, both Ms. Andrues and Ms. Davis (acting as hypothetical whistleblower counsel) indicated that it was unlikely they would contact the prosecutor, although both indicated that the call could be useful to obtain the lay of the land.
Mr. Rochon proposed a one-way flow of information from company counsel to counsel for the whistleblower as a way to get the attorney up to speed without compromising company’s counsel’s ability to remain as counsel in the event the whistleblower ends up cooperating with the government.
Another employee, an accountant, also needs counsel, and has given statements indicating involvement and potential additional exposure. The panel agreed that counsel for that individual might not allow an interview of that client, although the employee will almost certainly be terminated. Ms. Davis indicated that he may be facing termination even after an interview. The panel agreed that if the accountant still wanted to go forward with the interview, he should be thoroughly advised regarding the risks. However, the panel expressed significant doubts that the company would facilitate investigation.
Another hypothetical client was then discussed: in-house counsel who failed to act on the whistleblower’s initial complaints and who’s (at a minimum) negligence appears to have led to this problem. Because this hypothetical client’s version of the events was unsupported by documents or other witnesses, the panel agreed that this individual would clearly not be allowed to be interviewed by anyone, regardless of employment consequences.
During these exchanges, it was repeatedly discussed that the company’s agreement with DOJ/SEC required them to disclose information it discovered, and that this factored into every decision regarding allowing the various clients to be interviewed.
Mr. Rhodes commented regarding employment futures of these individuals. All appear to be unlikely to remain with the company, but the in-house counsel is most likely to be fired immediately. The accountant was deemed likely to be terminated after another interview. The tension between the interests of the company and the individual appeared especially intense in this scenario.
With regard to interview requests by DOJ/SEC, Ms. Andrues and Ms. Davis expressed skepticism regarding the amount of protection and value of proffer letters. In the event that the interviews were to take place, and a recording was required and defense counsel was not going to be given a copy, it was unlikely that the interview would occur. Mr. Knox noted that admissions by officers during interviews would be considered admissions by the company.
In response to a comment from the audience regarding the dangers of conducting investigations in foreign countries, Mr. Rhodes and Mr. Rochon agreed that local legal issues will always influence investigations and should be carefully considered.
If you’ve ever been stopped at a routine DUI point, random check at the airport or border crossing by car and the authorities have brought out the dogs, you know how nerve-wracking it can be. Even if you’re innocent, there’s something about a German Shepherd with a badge around its neck that is intimidating.
One of the issues facing the use of canines in law enforcement is cueing. Cueing is when the accompanying officer or handler working with a canine officer “cues” the dog to discover or detect narcotics usually out of a pre-existing set of criterion or the evidence of an existing threat.
In my weekly review of news that affects potential clients, I found an interesting article from Animal Law. It’s important to read as an everyday citizen as this could happen to any of us.
I’ve had the experience, especially in the immediate shadow of 911, where canine handling officers were used simply because my traveling case had a “funny smell.” I laugh now because it turned out to be nothing. I had purchased a brand new briefcase from Staples a few hours before I arrived at LAX and for some strange reason, the TSA employee found something he didn’t like. What in the world was happening, I thought. I’m no drug mule and I have only seen explosives presented in pictures in court or on TV crime shows. But this was within that first month after our national tragedy and everyone was jumpy.
I’m a regular guy, albeit a criminal defense attorney, and I have had zero contact with explosives or illegal drugs. I remember that experience like it was yesterday as two bomb dogs circled me while I sat in a chair. I had my shoes off and was instructed not to move. Intimidating and very off-putting, you bet. Surrounded by four officers and two wildly sniffing dogs, I wondered how a potential client would feel.
I’ve included the article from Animal Law for you to skim. For subsequent and interesting follow up, you should go here.
Cueing has been alleged in cases involving scent identification and narcotics detection, and courts have on occasion accepted cueing arguments when supported by testimony of a defense expert that the dog’s method of indicating was not evident on a videotape of an incident.
Generally, however, courts have declined to accept or reverse on claims of cueing, particularly where other factors establish that a dog has been reliable, such as training and field records or certification by an established organization. Courts have also rejected cueing arguments by accepting that only the handler may be able to reliably say whether a dog has alerted.
Cueing arguments have sometimes failed for procedural reasons, and have sometimes failed because a claim was unsupported by any evidence. A recent Florida Supreme Court case mentioned cueing as a form of handler error.
A 2011 study published in the journal, Animal Cognition, may, however, lead to a more general attack on the use of police detection dogs. The study, written by three faculty members of the University of California at Davis, found that under a specific testing scenario where no drugs or explosives were in the testing environment, most canine teams participating in the study nevertheless alerted to the presence of drugs or explosives when the handlers had reason to believe that a target item had been placed in the environment.
While this study has significant consequences for training and deployment of detection teams, the findings of the study should not be used to support blanket arguments that alerts by trained scent detection dogs do not support probable cause for a subsequent search. Canine alerts are not to be labeled junk science, as has happened in scent identification, another area where cueing is possible.
However, the results of the study should serve as a warning for police and military dog handlers that calling an alert should not be casually made to provide some colorable basis for a search when no other factors support probable cause. A dog’s alert, in other words, should not become an easy means of justifying a search when the handler or an officer involved in the incident has a hunch that something is awry and needs an excuse to take additional action.
After all, if the handler passes his hunch to his or her dog, the dog’s alert is not independently bolstering the officer’s suspicion. Further, the results of the Davis study argue strongly that training and testing should always use negative controls or blanks, replicating situations that handlers will routinely encounter in the field where a target odor may not be present.
When a search subsequent to an alert produces no contraband, handlers often argue that the dog alerted to residual odor, and this may be the case in a given situation. Handlers should be aware, however, that a likely result of the Davis study is that courts may become less inclined to ignore other possibilities, including cueing or that the handler falsely called an alert, and defense attorneys are certainly going to become more aggressive in attacking such evidence.
Many times people think the law is a very complicated business on every level. And to be sure, it is very complicated to defend a client depending on the circumstances. But in this blog, I wanted to take the opportunity to talk about the simplest thing you can do if you come under investigation for a white collar crime: Don’t say anything.
White collar crimes are high on federal law enforcement’s list these days and what you don’t know, can surely ruin your day. Let’s say that a federal law enforcement agency has paid you a visit either at work or at home, maybe both. No matter how they say it, you’re now under federal investigation. It’s not like on Law & Order. TV writers get paid a lot of money to write compelling stuff. In real life, it’s pretty tricky to figure out what to do when, say, the FBI comes calling asking about a fraud case.
There is another thing you should do beyond keeping quiet: call a criminal defense attorney. I’ve spent over 30 years preventing charges from being filed or greatly reducing the charges brought against my clients, especially with drugs or white collar crimes. I can bring about some pretty satisfactory results if my client knows the facts and there just aren’t that many to remember. Say nothing and call your attorney.
If you think you’re being investigated, call a criminal defense attorney immediately. Since I have access to former FBI, DEA and other federal agency personnel, I can tell you what is going to happen next. You’d be surprised at the peace of mind in finding out how cases are built.
I know how intimidating a couple of guys in suits with badges can be. You’re compelled to cooperate and of course, you should always be civil but everything you offer up without your legal counsel there becomes fair game. I can’t emphasize this enough. You have the right to have your counsel there. And you have the right to know just what is going on. This may seem simple but people sometimes do funny things when they are under federal investigation.
From the time federal agents step into your world, they are looking for details to get you on the hook. Don’t panic, be polite and say that you need your attorney there. Even if they insist that it’s just friendly questioning, your job as my prospective client is to get me there as fast as you can.
Agents are trained to be subtle, casual even. You may think you’re chit chatting but believe me; you’re only setting yourself up to be grilled later. And again, it’s not like the movies. This is real and it’s serious and you are not qualified to begin to know the levels that can lead you astray with a federal investigation with a white collar crime charge.
I’m not trying to be insulting, ever. I always educate my clients about how much of a chance they actually have. I’ve seen cases fall apart or lose a lot of momentum because they were hunting “facts” that just didn’t exist. The reason I’ve seen this is because my client called me from the very moment he knew he was under federal investigation.
I didn’t get where I am with a law degree and a bunch of cases. I’ve gotten here because I have a plan. I always have a plan. I’ve made an intricate study of how federal law enforcement investigates a case. Money laundering, mortgage fraud, complicated cases… I’ve prepared them all with precision based on knowing the key players in the investigation and their next steps, your chances for success and a careful aggressive plan of each step in your defense.
To further emphasize how to behave when under federal investigation, I offer a couple of examples.
Martha Stewart was convicted of lying to a federal investigator and NOT the underlying securities fraud charges that the agents were investigating. So if they can’t make the case stick, they’ll settle for the next best thing.
Barry Bonds got the same treatment when he was under federal investigation for steroid use. In an article on Manteca Bulletin, both cases illustrate that once you are in the hot seat, it’s best to calm down, call your attorney and do nothing until he or she gets there.
You may not like either Stewart or Bonds but this is not the point. If the federal government can do this to them, believe me, they can do this to you. There’s a lot of power and money behind federal investigations of white collar crime. And investigators will settle for getting you on an 18 UCS 1001 charge, also known as lying to a federal agent.
A favorite motto from World War II cautioning military personnel to keep their mouths closed when writing home from the war was: “Loose Lips Sink Ships.” Before you sink your own ship, bring me aboard.
I read yet another interesting piece on the failed global drug policy in the Los Angeles Times the other day. I always scratch my head at this notion that the “war on drugs” is winnable.
The Global Commission on Drug Policy is calling for a drastic change in the global drug policy. Essentially, the commission says that after 40 years of failed drug policy, it’s time to seek a new direction.
The Commission includes former U.S. Federal Reserve Chairman Paul Volcker, writers Carlos Fuentes and Mario Vargas Llosa, Virgin Group founder Richard Branson, former U.N. Secretary-General Kofi Annan, and the former presidents of Mexico, Brazil and Colombia.
According to the U.N., there are an estimated 250 million people around the globe using illegal drugs. The Commission’s report says that the global anti-drug policy was crafted 50 years ago and has failed to stem the support or use of illegal drugs. Global marijuana consumption has risen by 8% and cocaine use by 27% between 1998 and 2008.
The Commissions calls for more drug treatment options and says that the costly arresting and imprisoning of tens of millions of farmers, couriers and street dealers is getting worse not better. As more farmers and other drug-related workers or dealers get into the drug business due to a bad economy, the war on drugs goes on unabated.
The report also recommends that governments try new ways of legalizing and regulating drugs, especially marijuana, as a way to deny profits to drug cartels.
More than 38,000 people have died in Mexico in drug-related violence since late 2006, when President Calderon deployed the military in the crackdown on organized crime. Most of the deaths stem from turf wars between rival trafficking gangs.
The Commission asks world governments to end “the criminalization, marginalization and stigmatization of people who use drugs but do no harm to others.”
But the Obama Administration is having nothing of it. The U.S. has given many resources for over 4 years to the Mexican government to aid in the bloody fight against drug cartels. Although the administration has sought out funding for more drug prevention programs ($1.7 billion in the 2012 budget), it doesn’t seem likely that it will agree fully with the Commission.
“The U.S. needs to open a debate,” former Colombian President Cesar Gaviria said. “When you have 40 years of a policy that is not bringing results, you have to ask if it’s time to change it.”
Clearly, we’ve been heading in the wrong direction. As a criminal defense attorney for over 30 years, I’ve seen our prisons fill up with drug offenders, who needed treatment over incarceration, smaller sentences and in some cases, didn’t need to be charged at all.
The war on drugs is a big business and as long as the “warriors” are getting paid, the war will rage on. And now California is being asked to cut its prison population by 35,000 over the next two years. Look for more on that in an upcoming post.
Please do check out the full story in the Los Angeles Times. Interesting reading.