Tagged: constitutional rights

DOJ Adopts New Policy Requiring Electronic Recording of Statements

The Justice Department has announced a new policy that will require federal law enforcement agencies to electronically record interviews with suspects.  According to Attorney General Eric H. Holder Jr.,

Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody. It will allow us to document that detained individuals are afforded their constitutionally protected rights.

The new policy will require federal law enforcement agencies to record interactions with a detained suspect during the time between the suspect’s arrest and initial appearance before a judge. Notably, the new policy also suggests that officials should consider using electronic recording devices during other investigative situations, including witness interviews.

This is a stark change from the Department’s prior policy, which expressively prohibited the use of recording equipment by law enforcement agencies when conducting interviews with suspects. The Justice Department was previously concerned that the use of recording devices would undermine investigative techniques of federal agencies, and would discourage suspects from talking. The Department also once expressed that jurors may frown upon FBI interviewing techniques, and have “unfavorable impressions of agents” had they heard verbatim accounts of such interrogations.

Mr. Holder discounted these concerns, explaining that federal officials should be more committed to a process that exemplifies evenhanded enforcement of the law, and the new policy would “provide verifiable evidence that our words are matched by our deeds.” He noted that it is of great importance for federal agencies to ensure that the statements of suspects are accurately recorded, and that suspects are afforded their constitutional rights during interrogations with federal agents.

National Association of Criminal Defense Lawyers President Jerry J. Cox was pleased to hear about the Justice Department’s policy change, noting that the use of electronic recording during interviews

protects the accused against police misconduct, protects law enforcement against false allegations, and protects public safety by ensuring a verbatim record of the interrogation process and any statements.

Mr. Holder has already begun the implementation of the new policy, and has instructed United States attorneys and agency field offices to begin training sessions. As of July, the new policy will apply to the FBI, DEA, ATF and U.S. Marshals Service.

References:

Does this Government Conduct “Shock the Conscience of the Ninth Circuit?”

The Ninth Circuit recently upheld a due process challenge to an ATF sting that targeted the poorest minority neighborhoods in Phoenix to court individuals – with a promise of riches – to break into and rob local fictitious, non-existent stash houses.  Many of these individuals had no criminal records; almost all were out of work and poor.

Pace Professor Bennett L. Gershman analyzes the ATF’s penchant for creating fictitious crimes (see e.g., Operation Fast and Furious) in a recent Huffington Post column.  Click here to read the entire post.

Federal Judge Recommends Reform of Plea-Bargaining Process

Federal District Judge Jed S. Rakoff has a long-standing reputation for being an honest, open-minded, and fair jurist when presiding over criminal cases.   He has continually shown the courage to address some of the most profound issues within our criminal justice system, and has always taken the “high road” in doing so.  Many criminal defense practitioners have lauded Judge Rakoff’s judicial wisdom as well as his “no-nonsense” attitude when dealing with prosecutors that play fast-and-loose with their ethical obligation to disclose favorable evidence.

According to Professor Peter Widulski of Pace Law School, who once served as a law clerk for Judge Rakoff:

Judge Rakoff is one of the most brilliant and respected members of the federal bench. He is a man of the highest integrity, and his dedication to the law is a model for all jurists and lawyers. This dedication is manifested not only in his work on the bench but in the extensive teaching he has done for many years at Columbia Law School.

Recently, Judge Rakoff has proposed innovative changes to help reform the plea-bargaining process. He suggested a new process whereby magistrate judges would hear evidence and issue plea bargaining recommendations  pre-trial. Such proceedings would allow both the prosecution and defense an opportunity to present relevant facts, and to weigh-in on the evidence likely to be presented by the government at a trial.

Judge Rakoff explained that such a process would bring “plea bargaining from behind closed doors and relieve pressure on the defendants deciding whether to risk a longer sentence by heading to trial.”  He also noted that judges should become more involved in the process to protect defendants from feeling bullied into pleading guilty and help prevent overzealous prosecutors from using mandatory minimum sentences as a coercive bargaining chip.

Judge Rakoff estimates that from 1% to 8% of the prison population may be the result of false guilty pleas. He notes that the “current process is totally different from what the founding fathers had in mind.”  He explained that more needs to be done to protect innocent people from coerced pleas –as “even 0.5% [of false pleas] would total more than 10,000 [innocent] people” in prison.

In 2009, Judge Rakoff was also outspoken about sentencing inequities created by mandatory minimums for firearm offenses. In Unites States v. Ballard, Judge Rakoff refused to submit to the government’s request to impose a Guideline range sentence on non-gun counts, and to stack consecutive mandatory sentences for each firearm conviction on the defendant’s armed robbery counts. He noted that the case did not warrant the 64-year sentence advocated by the prosecution and refused to become a party to such an “unconscionable result.” He found that the imposition of a one-month sentence for the non-firearm counts was proper given the two consecutive 25-year sentences required under 18 U.S.C. § 924(c).

Judge Rakoff explained that the case was illustrative of the distorting effects of mandatory minimum sentences, given that a co-defendant was given a plea bargain excluding mandatory minimums, and obtained a sentence of 168 months in prison. He observed that the extreme sentencing disparity between the co-defendants was simply a result of one exercising his constitutional right to go to trial –while the other defendant did not. He noted that

[w]hen the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt.

In 2006, Judge Rakoff also took a courageous stance against the disproportional sentencing recommendations that may occasionally arise in a case under the Sentencing Guidelines.  In United States v. Adelson, Judge Rakoff imposed a non-guideline sentence of 42 months imprisonment to a defendant convicted of conspiracy, securities fraud, and the three of the false filing counts -although the Government argued that the Sentencing Guidelines, if properly calculated, called for a sentence of life imprisonment.

Judge Rakoff noted that what the case “exposed, more broadly, was the utter travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.” He concluded that “[t]his is one of those cases in which calculations under the Sentencing Guidelines lead to a result so patently unreasonable as to require the Court to place greater emphasis on other sentencing factors to derive a sentence that comports with federal law.”

It is to be hoped that all members of the Bar will rally behind Judge Rakoff to help facilitate reform to correct the injustices caused by the combination of our plea-bargaining process and harsh mandatory minimum sentencing.

A true leader of his time, “Judge Rakoff enjoys well-deserved admiration for fairness, and he has the courage and insight to address important issues of law and the administration of justice, without fear or favor” said Professor Widulski.

Related Readings:

Oh My Brady! Who Art Thou?

Although the New York State Court of Appeals decision in People v. McCray, will likely not be a hot topic of conversation in many legal circles, it will definitely have a palpable impact on prosecutorial practices regarding the handling of Brady disclosures in New York.

In McCray, the defendant was accused of raping an 18-year-old female acquaintance. At trial, the prosecution alleged that the defendant and the complainant had gone on a date and that the defendant physically forced the complainant to engage in sexual intercourse while inside an abandoned building. The defense claimed that the sexual encounter was consensual, and an altercation arose when the complainant demanded money in exchange for having sex with the defendant. The defense also contended that a physical struggle occurred when the defendant attempted to stop the complainant from running off with his “pants.”

Unquestionably, the case presented a “classic he-said she-said credibility determination.” And “[t]he outcome of the case obviously depended on which witness the jury believed.”

Prior to trial, the prosecution requested that the court conduct an in-camera review of the complainant’s mental health records. The prosecution didn’t believe that all of the reports were discoverable, and sought the court’s guidance as to which documents were Brady-Giglio material. The trial court found that only 28 pages out of the thousand records it reviewed should be disclosed to the defense –although the undisclosed records referenced, among other things, the complainant’s tendency (1) to confuse dates of events or misunderstand events, (2) to have hallucinations or distorted perceptions, (3) to misrepresent the truth in an effort to please her mother, (4) to engage in wishful thinking about relationships with males with whom she is recently acquainted, and (5) to fabricate occurrences of sexual assault and attempted rape by her father –allegations which were ultimately deemed “unfounded.”

The Court of Appeals observed that “[t]his case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought.”  Nevertheless, it concluded that the key inquiry remained whether there was a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”

The Court held that the undisclosed records were “either cumulative or of little if any relevance to the case.” The Court explained that they “contain other examples of what could be called hallucinations or distorted perceptions, but the other examples were no clearer or more dramatic than the ones the defense already had….” The Court also found that any prior fabrications would be immaterial because the “accusation [against] her father was far removed in time and quite different from the[se] accusation[s]…” The Court concluded that “[i]t is hard to imagine, however, a juror who could attribute the complainant’s testimony here — a claim of rape, made immediately after what defendant testified was consensual sex followed by a dispute over payment — to a failure of recollection or a misunderstanding, however susceptible to those failings the complainant may have been.”

Dissenters were critical of the Court’s failure to protect the defendant’s right to consider and explore all legitimate avenues of information relevant to his defense and to the victim’s testimony and potential cross-examination. (Dissenting Judges: Jenny Rivera, Jonathan Lippman, Eugene Pigott).  They explained that “[w]ithout access to documents concerning reliability of the witness, the defendant cannot properly develop and pursue questioning favorable to the defense or address facts and related issues important to the truth finding process.”

Unfortunately, the long-standing importance of the Brady-Giglio rule has not been fully appreciated by all members of the Court and decisions like McCray reaffirm the need for legislative reform in order to address the stark imbalance in discovery practices.  Likewise, the result-affecting test conducted by the Courts to determine Brady violations is simply a farfetched and imperfect process -as “[w]hat influences juries, courts seldom know.” (Chief Judge Jerome Frank). The imperfection of this process is further illustrated by the illogical fact that the majority in McCray found it “hard to imagine” that a juror might reach a different outcome–while members of its own bench implicitly found that they would have reached a different outcome in this case had they know of the undisclosed reports.

The McCray decision simply fails to recognize that the right to disclosure of exculpatory and impeachment evidence under the Brady-Giglio rule is the cornerstone to ensuring a defendant the right to a fair trial, and ensuring that the “goals of seeking the truth through the trial process” is legitimate.  Without access to favorable evidence, a defendant is unable to either effectively prepare for trial, or present facts important to the “truth finding process.”

All the parties in McCray, except the defense, were permitted to decide how the complainant’s mental health records may be useful to the accused. In my opinion, such a vetting process is unsound, and should not be representative of how future Brady-Giglio materials should be handled by prosecuting offices. As an alternative,  these Brady-Giglio materials, even if  referencing “private matters” of the complainant, should have been turned over to the defense under a protective order, or subject to preclusion after the court heard arguments from both sides. Of course, such an alternative process would at least respect the fundamental principle that the right to favorable evidence is one of constitutional dimension -and the “privacy concern” of a witness is not.

To decide what may be favorable to a defendant, while keeping him blindfolded in his prison cell, does not comport to the notions of fairness and justice for all.

References

Second Circuit Targets “DOJ White Paper” in Sanctioned-Killings

A three-judge panel for Second Circuit Court of Appeals has recently ordered the United States Government to release portions of a Justice Department memorandum (“DOJ White Paper”) that purportedly contains classified information regarding the targeted killing of Anwar al-Awlaki. In 2011, Anwar al-Awlaki, a United States citizen alleged to have joined Al Qaeda forces, was killed during a targeted drone strike in Yemen. His killing, along with some other alleged terror suspects, were sanctioned by the United States targeted-killing program in the “War on Terror.”

In New York Times Co. v. Dep’t of Justice, the Court ruled that partial disclosure of the “DOJ White Paper,” sections setting forth the government’s reasoning as to lawfulness of its targeted killings of United States citizens carried out by drone aircraft, was justified given the government’s public statements discussing Awlaki’s death. The court observed that senior Government officials had undertaken

an extensive public relations campaign to convince the public that [the Administration’s] conclusions [about the lawfulness of the killing of al-Awlaki] are correct.

The court further concluded that such limited disclosure would not impinge upon any attorney-client privilege matters between the government and the DOJ’s Office of Legal Counsel, nor would disclosure risk “any aspect of military plans, intelligence activities, sources and methods or foreign relations.”

In a prior editorial, the New York Times noted that the “DOJ White Paper” was of monumental importance to help settle the significant legal debate that has transpired since the targeted-killing program was made public. Many legal scholars have long awaited the release of the “legal reasoning” that has been drummed up by government officials to justify the targeted-killing program. Many scholars have remained skeptical of the government’s analysis, and have wondered whether it is ever lawful for the government to conduct targeted killings of American citizens, observing that the targeted-killing of any United States citizen may inherently contravene

executive orders banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war.

Last year, U.S. District Court Judge Colleen McMahon denied the request of the New York Times and the American Civil Liberties Union to obtain an unredacted version of the Justice Department’s memorandum pursuant to the Freedom of Information Act. In response to the District Court’s ruling, the ACLU expressed that

[t]his ruling denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively green-lights its practice of making selective and self-serving disclosures.

At the time, ACLU deputy legal director Jameel Jaffer also suggested that the “targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy.” Jaffer advocated that the memorandum should be unsealed, because “[t]he public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime.”

Related Readings