by Don Samuel

Judge Rosenbaum authored a particularly thoughtful concurrence in the Knights decision on March 11.  The question posed to the panel was whether the police had detained the defendant when they pulled their vehicles adjacent to the defendant’s vehicle on the side of the road.  All three judges on the panel agreed that this did not amount to a seizure and therefore, the police did not need an articulable suspicion to start the encounter in this way.  
 
Judge Rosenbaum’s concurring opinion explains the dilemma facing the suspect.  Assuming there is no basis for a detention (i.e., there is no reasonable suspicion justifying a restraint on the person’s liberty), then the police may initiate a consensual encounter.  But correspondingly, the citizen is free to terminate the encounter and walk or run away.  But how does the citizen know whether the police are engaging in a consensual encounter or are detaining the citizen, albeit in a polite way?  One can be detained and “not free to leave” even if the police have not pointed a gun at the person, or handcuffed him.  The Supreme Court insists that determining whether a citizen has been detained is measured by a purely objective standard:  “Does the citizen reasonably believe that he is not free to leave.” United States v. Drayton, 536 U.S. 194, 200 (2002); Michigan v. Chesternut, 486 U.S. 567 (1988); Florida v. Royer, 460 U.S. 491 (1983).  There are numerous factors that the court may consider in deciding whether the suspect was detained, including the number of officers involved in the encounter, the use of weapons, any physical restraint, words spoken by the police that explain that the suspect is not free to leave, the age of the suspect. 
 
The suspect, however, while possibly aware of all the existing objective facts, may or may not reach the same conclusion as the police (or the court) in determining whether a “reasonable person” would feel free to leave.  
 
Consider the four possible scenarios that might exist:
  

1. If the citizen believes it is a consensual encounter and he is right, he can go about his business and leave the police in the dust. 
2. But if the citizen is wrong and the police were detaining the citizen, then “going about his business” would amount to obstruction of justice and could lead to a violent encounter when the police try to recapture the fleeing suspect. 
3. If the encounter is (objectively speaking) consensual, but the defendant believes he is being detained, he will be “restrained” in his own mind without any basis. 
4. If the police were detaining the defendant and the defendant stays put, the investigation proceeds apace.  

 
In her concurring opinion, Judge Rosenbaum suggests that the police should be required to announce to the suspect whether he or she is free to leave or not.  That warning should be mandatory.  Adopting this rule will remove any uncertainty in the mind of the suspect.  If he is told he is being detained, he better not risk fleeing (though if the court later decides that there was no basis for the detention, he might be able to avoid any legal consequences of fleeing).  If he is told he is free to leave, there is no risk in leaving. 

by Don Samuel

When the police chase a suspect, this, alone, does not amount to a seizure. In California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547 (1991), the Supreme Court held that a mere show of authority does not amount to a seizure. The police were patrolling a high-crime area. Several youths fled immediately upon seeing the officers. The officers pursued the youths and after observing one youth throw down a plastic bag, an officer tackled him. The Supreme Court held that the initial pursuit of the youths did not amount to a seizure. The mere show of authority, the Court held, is not tantamount to a seizure absent some actual physical force being applied and absent compliance with an order to stop.  
 
This issue returned to the Supreme Court in Torres v. Madrid, --- S. Ct. --- (2021), decided on March 25, 2021. Torres is a civil § 1983 case in which the plaintiff was parked in her car in a parking lot.  Police officers approached the car but did not identify themselves.  The plaintiff sped off, fearful that she was being carjacked.  The police shot at the car, wounding the plaintiff twice. She continued to drive to a hospital.  She sued the police for the improper Fourth Amendment seizure.  But was she seized?  Is the Fourth Amendment implicated when the police do not put their hands on the subject and do not actually detain the subject?  Unlike Hodari D., the police did more than simply command her to stop; they shot her. But like Hodari D., she did not stop, she fled. The Fourth Amendment requires that all searches and seizures must be reasonable. The oral argument revealed the Justice’s concern with the semantics of concluding that shooting somebody is what the Fourth Amendment authors had in mind when they used the term “seize.” Justice Alito questioned whether even contemporary language supports the notion that hitting somebody amounts to a seizure: If a baseball pitcher intentionally “beans” a batter, would that be described as a “seizure?” (Oral argument, page 11). Justice Thomas asked, what if the police throw a snowball at a fleeing subject?  (Oral argument, page 8).  Is that a seizure? 
 
In a civil § 1983 case, this is important, because if shooting somebody who continues to flee is not a seizure, then the fleeing person cannot sue the police for violating the Fourth Amendment’s guarantee against unreasonable seizures (the victim could still sue for civil assault, or battery, but not a federal constitutional violation).  In criminal cases, the issue is somewhat less consequential, because if the person flees, what is the consequence in a criminal case?  What is the fruit of the poisonous tree, assuming the shooting was an unlawful seizure?  If the suspect continues to flee and escapes, there is no evidence to suppress.  If the defendant continues to flee and an hour later, as the police are closing in, the suspect throws a bag of drugs on the ground, is that the “fruit” of the unlawful shooting?  If the suspect is captured twenty minutes after being shot and wounded and when apprehended the suspect confesses to a crime, is that confession the fruit of the unreasonable seizure (shooting)?
 
Putting aside, for now, the consequence of the Torres holding, the Court held that the shooting in Torreswas, indeed, a Fourth Amendment seizure.  Here are the quick take-aways.
 

1. The majority opinion, written by Chief Justice Roberts summed it up this way:   “An arrest requires eitherphysical force or where that is absent, submission to the assertion of authority.”
2. The “force” must be accompanied by an intention (objectively considered) to restrain.  Thus, a “tap on the shoulder” is not the type of “force” that constitutes a seizure.
3. The Court did not decide whether the holding applies to the use of pepper spray, flash-bang grenades and lasers.
4. The suspect’s subjective beliefs are not relevant.  In other words, the suspect’s belief that he or she has been detained is not what counts: what matters is whether the circumstances would reasonably be construed (objectively) as restraint.
5. The “seizure” which occurs by being shot – assuming the suspect continues to flee – is not continuing.  (Thus the problem of determining in a criminal case, “What is the fruit of the poisonous tree?”)

Justice Alito, Justice Thomas and Justice Gorsuch dissented.  If the suspect does not submit, the suspect has not been seized.  Period.

by Don Samuel

Can the police go into a house without a warrant, not to investigate a crime, but to determine if somebody is in need of assistance?  Assume there is not probable cause to believe that someone is in need of emergency/immediate assistance (as in the exigent circumstances cases, such as Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S. Ct. 1943 (2006)).
 
The issue arises in the context of what is known as the “community caretaking function” exception to the search warrant requirement, which was first recognized in Cady v. Dombrowski, 413 U.S. 433 (1973), a case in which the Court described certain functions of the police that have nothing to do with the detection or investigation of crimes. In Cady, the defendant, a police officer, was in a serious car accident and his car was towed to a garage. The police later went to the garage to secure the officer’s weapon that they believed was left in the vehicle. While looking through the vehicle, evidence of a murder was discovered. The Supreme Court held that the “caretaking” search was not unreasonable and did not require the police to secure a search warrant.
 
In Coniglia v. Strom, the Supreme Court is asked to decide whether the community caretaking exception applies to a home.  Coniglia was possibly suicidal.  The police went to his house and after talking with him on the front porch, had him transferred to a mental health facility.  They later entered his house to retrieve guns that they feared he might use to harm himself when he was released.  He sued for the warrantless entry into his house and seizure of his guns.
 
Four questions addressing the scope of the Fourth Amendment requirements in this situation confronted the litigants:
 

1. Do the police need probable cause to enter the house?  Assuming no criminal investigative purpose, do the police need probable that somebody is injured or in need of help or psychiatric intervention?  Is reasonable belief enough?  
2. How imminent need the threat of injury be?  If it is truly imminent, the exigent circumstances exception applies.  If it is too remote, why not get a search warrant?
3. What if it is a social worker and not a police officer who is making the entry?  Or an EMT? What if the state agent has no arrest power?  Does a social worker need probable cause?
4. What if the jurisdiction enacts a policy (like the inventory search policy) that has no criminal investigative purpose, but which empowers police to enter a house if there is an objectively reasonable basis to fear a suicide may occur?  Or if there is a reasonable basis to believe that an elderly person is in need of assistance?

 
The oral argument (characteristically) also tested the resolve of the lawyers to justify when, exactly, it was ok to enter a house in these circumstances:
 

1.  Chief Justice Roberts:  What if an elderly woman accepts an invitation to go to her neighbor’s house for dinner but does not show up on time.  She is an hour late and she has never been late before.  The neighbor calls the police, fearful that the woman is sick or incapacitated.  After all, the neighbor explains, she is never late to dinner.  Can the police enter the woman’s house?  If the answer is no, what about entering the house the next day, 24 hours later, when she has still not appeared or answered her phone? (the plaintiff’s lawyer said those facts do not justify a warrantless entry).
2. Justice Thomas:  If the police do go in and see the woman lying on the floor with a broken hip, they rescue her and save her life, can she sue them for the illegal entry?  (Answer:  Yes).
3. Justice Breyer:  Can the police go into a house if a baby is heard crying for five hours?
4. Justice Kavanaugh:  There are 65 suicides on average every day in the U.S. by gunshots.  Can the police not go into a house to try to prevent a suicide?  They don’t have time to decide on the spur of the moment, after receiving a call from a neighbor, whether they have sufficient “cause” to enter.  The same with elderly people falling and dying because the police are fearful that they will be sued if they enter the house.
5. Justice Barrett:  How about a social worker, rather than the police.  In a “welfare check” situation, can the local community have a social worker check on the welfare of someone who might have fallen?  Do you really want to insist on “probable cause” that somebody needs help?  (As opposed to “probable cause” to believe a crime has been committed)?
6. Chief Justice Roberts:  Can the police, in response to a call from a neighbor go to the home of people who are on vacation, climb over a fence into the curtilage of the home to rescue a cat from a tree?
7. Justice Barrett:  What if the police are walking in the neighborhood and look in the window and see many people not wearing masks (during pandemic)?  Can they go in for community caretaking purposes?
8. Chief Justice Roberts:  The family is away on vacation.  It appears to the neighbors that the house has a leak and water is dripping into the room where there is a very expensive original Van Gogh.  Can the police enter to save the property?
9. Justice Breyer:  How imminent must the harm be?  If it is really imminent, then “exigent circumstances” is the exception to the warrant requirement that applies.  But if it is not imminent, it is “community caretaking” – how “not imminent” can the threat be (in suicide cases, for example) before community caretaking is not a permissible basis for a warrantless entry?
10. Justice Sotomayor: In this case, the police went into the house and seized the gun, because of the suicide threat. How long can they keep the gun? 

By:  Don Samuel

​Louisiana supplies to the rest of America the best jazz and the best beignets.  But in this past term in the Supreme Court, Louisiana provided to us two cases that involved critically important Constitutional rights:  (1) the right to insist that 12 people unanimously decide a person’s fate in a criminal case; and (2) the right to prevent the government from deciding the fate of a woman’s pregnancy.  Ramos v. Louisiana and June Medical.
 
We are writing about another aspect of these decisions:  the role and application of the principle of stare decisis: how the Court decides whether to adhere to a precedent that appears, at least on the surface, to determine the outcome of a particular controversy.
 
Not a term goes by that the Court is not asked to overturn, limit, or expand a previous decision. This blog post and a couple to follow, focus not so much on the Supreme Court’s method of deciding whether to overturn a precedent (though we begin with that topic), but the role of the trial courts in this process.
 
The factors that the appellate court considers (or claims to consider) in deciding whether to jettison a precedent include: (1) the soundness of the reasoning of the prior decision, including its consistency with related decisions, (2) the age of the precedent, (3) the reliance interests involved (economic, regulatory, or social interests that a litigant seeks to preserve), and (4) the workability of the prior decision. 
 
There are several subsidiary factors, as well: (a) Was the prior precedent a unanimous decision or a plurality decision with the narrowest holding representing the view of only one concurring Justice?  (b) Is the prior precedent really controlling on the issue presented in the case at hand, or is it dicta that only appears to govern the outcome?  (c) are the facts in the current case distinguishable in a material way from the facts of the precedent that is offered as binding precedent? (d) Have the facts that prompted the previous Court to reach a decision changed, such that the precedent’s foundation is too obsolete:  this could relate to the facts viewed on a micro level (when is a baby in utero viable?), or perhaps facts viewed more broadly (have advances in technology altered our view of the expectation of privacy?  Or has the country’s tolerance for the death penalty waned to the extent that it views the death penalty as being “unusual,” and has the country’s tolerance of gay marriage changed)?
 
What role do lower courts play?  To some extent, a potentially outcome-determinative role.  
 
While deciding whether a precedent was “wrongly decided” (or as Justice Kavanaugh wrote in Ramos, “grievously wrong”), the lower court’s role is minimal.  But in laying the groundwork for considerations of “workability” and “reliance interests” and “changed facts both large and small” the trial court’s foundational work is essential in providing the appellate court with the information it needs to decide those issues.
 
First, we consider Ramos and June Medical, though not on the merits, as much as on the approach the Court took to stare decisis.
 
In Ramos, the question was simple:  In all courts, state and federal, in order to convict the defendant of a serious felony, must the jury’s verdict be unanimous?  The precedent – Apodaca v. Oregon – in a fractured opinion, held that in federal court, a unanimous verdict was required, but in state court, the states could “experiment” and permit a conviction based on less than a unanimous verdict.  In short, the decision held that the 12-person unanimous requirement that had previously been found to be part of the Sixth Amendment did not apply to the states.  But Apodaca was an odd decision.  Because four Justices held that the 12-person unanimous decision requirement did not exist in any court (state or federal) and was not enshrined in the Sixth Amendment; and four justices held that the 12-person unanimous requirement applied in  both the state and federal courts.  Justice Kennedy engaged in Solomonic jurisprudence and held that the unanimity requirement applied in federal court but not in state court.  That decision, the “narrowest” holding, became the law of the land despite the fact that only one Justice on the Court reached that Goldilocks decision.
 
Ramos decided that the fact that only one Justice had reached that result was one of the reasons that the Apodaca precedent should be discarded.  And for that reason, among several others voiced by other members of the current Court (including the apparent racist genesis of the non-unanimous verdict rule in Louisiana), Apodaca was jettisoned.  
 
June Medical on the other hand, contains a lengthy discussion of the precedents that were at play.  Roe v. Wade; Planned  Parenthood v. Casey; and Whole Woman’s Health were prior decisions that the Justices considered in deciding two fundamental aspects of the stare decisis question:  (1) should  the court abandon or limit one or more of those decisions?  (2)  Did the recent Whole Woman’s Health decision actually govern the decision in June Medical?  After all, Texas is Texas and Louisiana is Louisiana and just because the Texas law was found to be unconstitutional, based on the facts on the ground in Texas, this did not automatically mean that the exact same statute in Louisiana was unconstitutional because the facts on the ground in Louisiana were (or perhaps were not) different.  After all, the fundamental principle  of stare decisis is that “like cases should be treated alike” so the process must decide whether the “like” ingredient exists.  
 
Ultimately, as we all know, after a painstaking review of the facts in Louisiana in Justice Breyer’s plurality opinion, the Court, joined by Chief Justice Roberts in a concurring opinion, held that Whole Woman’s Health was factually indistinguishable precedent that: (1) applied to the similar factual situation in Louisiana; and (2) should not be overturned.  Justice Kavanaugh’s separate decision in June Medical sought to avoid the focus on “should  precedent be overturned” and wrote that more fact-finding was necessary to determine whether the facts in Whole Woman’s Health were sufficiently “like” the facts in June Medical so as to demand that the like cases be treated alike.  Thus, in June Medical the role of the lower court cannot be overstated.  Absent the thorough fact-finding upon which Justice Breyer relied, there is no telling where June Medical would have landed.
 
Next post will consider some of the recent precedent-busting decisions in Georgia and then will consider in more detail the role of the trial courts in providing the appellate courts with the information they need to decide whether precedent applies to the dispute at issue in the case at hand; and whether the facts writ large or small, should alter the appellate court’s view of what the holding should be and whether the precedent should be abandoned.

by:  Don Samuel

At the heart of the punitive phase of our criminal justice system are the twin goals of deterrence and retribution.  At least, that is how we generally view the reason that defendants are subject to punishment.
 
But what about lawyers who engage in misconduct during the course of the proceedings?  How do we address their misbehavior?  The answer is: erratically, and often with forgiveness, and the granting of second (or third) chances.  At least, that is historically what happens when prosecutors violate the rules of the court, including violations of the constitutional rights of the defendants who are prosecuted.  
 
Consider, for example, Brady violations.  These are violations of the rules of discovery that govern practice in criminal cases: the Constitution requires that the prosecution team (including law enforcement officers and prosecutors) furnish to the defense any exculpatory information, or information that impeaches the testimony of a prosecution witness.  Sometimes, it is debatable whether a particular item of information really qualifies as “exculpatory;” but sometimes it is as clear as the day is long. 
 
What happens when a court finds out after trial that a prosecutor violated Brady and failed to reveal information that was exculpatory?  Generally, the answer to that question depends on how important the information was compared to the strength of the prosecution’s case.  Hypothetically, if the prosecution had a DNA sample or a hair sample that exonerated the defendant and the prosecutor or the police fail to reveal the evidence to the defense, then the defendant will be granted a new trial.  If the prosecutor had information that was comparatively insignificant, compared to the overwhelming evidence of the defendant’ guilt, nothing will happen.  But in neither circumstance the prosecutor who improperly withheld the information suffer any consequence.
 
Why do the twin goals of deterrence and retribution not apply in these situations?  When a defendant is charged with a crime, does the court ever respond, “Harmless error?”  If everybody in the system believes that compliance with the Constitution is important and that providing exculpatory information to the defense is an indispensable constitutional guarantee, why is there rarely any punishment for the misbehaving police or prosecutor who violate the command of Brady?  We are attaching a short summary of forty pages of decisions in the federal appellate courts in which the court found Brady violations, and yet, no consequences for the prosecutors.  And there also Georgia appellate decisions in which convictions were reversed based on Brady violations and not a hint of any sanction for the prosecution.  Where is the deterrence?  
 
That is the reason that a recent decision in New York is worth reviewing.  The case involved a federal prosecution of a man for violating the Emergency Economic Powers Act, as well as bank fraud, and money laundering.  The opinion is from he Southern District of New York. USA v. Nejad, 18-224 (S.D.N.Y. June 9, 2020). The defendant was convicted, but shortly after trial, the government moved to dismiss the charges – after conviction – apparently recognizing that Brady information was improperly withheld from the defense during trial.  Judge Alison Nathan was not satisfied with simply dismissing the charges.  She entered an Order demanding answers:  How did this happen?  Why did this happen?  What kind of training do the prosecutors have in the world-renowned SDNY United States Attorney’s Office?   
 
This reminds us of a case we handled in the Fourth Circuit in which the appellate court determined that Bradyinformation was withheld from the defense during trial. The Fourth Circuit was outraged (kind of) and insisted that a copy of the decision be personally delivered to the Attorney General of the United States. This is what the Fourth Circuit wrote in that case:
 
Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants' convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices “harmless” as to a specific defendant's verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. “No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.
 
We urge the district court in the Eastern District of North Carolina to meet with the United States Attorney's Office of that district to discuss improvement of its discovery procedures so as to prevent the abuses we have referenced here. Moreover, if this sort of behavior continues in subsequent cases, this Court may wish to require that the United States Attorney for the Eastern District of North Carolina, as well as the trial prosecutor, be present at oral argument so that the panel can speak directly to her or him about any alleged misconduct. Sanctions or disciplinary action are also options.
 
To underscore our seriousness about this matter, and to ensure that the problems are addressed, we direct the Clerk of Court to serve a copy of this opinion upon the Attorney General of the United States and the Office of Professional Responsibility for the Department of Justice. The transmittal letter should call attention to this section of the opinion.
 
We do not mean to be unduly harsh here. But “there comes a point where this Court should not be ignorant as judges of what we know as men [and women].” … What we know is that we are repeatedly confronted with charges of discovery abuse by this office. What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable. Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated. Whatever it takes, this behavior must stop.  U.S. v. Bartko, 728 F.3d 327, 342–43 (4th Cir. 2013).
 
We are also reminded of the decision in the Shaygan case in the SDFla, where the district court denounced the misconduct of the prosecutors and their supervisors, who surreptitiously taped the defense attorney who was interviewing witnesses and did not reveal what they had done until the middle of trial.  The 45-page decision of the district court in that case is well-worth reading, though the award of attorney’s fees to the defense was later reversed by the Eleventh Circuit.  The punishment of the prosecutors who engaged in this outrageous behavior?  One prosecutor was transferred from the criminal division to the civil division of the US Attorney’s Office in Miami and another was demoted from her supervisory position.   
 
And who is unaware of the abundant Brady violations in the prosecution of the Alaska Senator, Ted Stevens, whose conviction was set aside at the request of Attorney General Eric Holder based on the prosecutors’ persistent violations of the Senator’s constitutional rights? 
 
But we ask, again, were prosecutors deterred from further discovery violations?  Is the government’s response simply, “The reversal of the conviction and the public shaming of the prosecutor is sufficient deterrence.” That certainly never works for us when we represent a defendant being sentenced in federal or state court.  Can you imagine a defense attorney arguing to a judge, “Please give my client a second chance, because there is no need to sentence him to jail, or impose a fine, because he has learned his lesson and he is ashamed and will not let it happen again.”  Or how about this:  “Please do not sentence my client to jail; his boss is going to talk to him and require him to take a short online course that instructs him not to commit felonies anymore … problem solved, case closed.” 

by:  Don Samuel

This morning, SCOTUS granted certiorari in a Texas death penalty case and found that the lawyer provided ineffective assistance of counsel, but remanded for further consideration by the Texas appellate court about the prejudice prong of the Strickland ineffective assistance of counsel test.
 
Also, in Georgia’s blockbuster Title VII case, the Supreme Court decided: An employer who fires an individual merely for being gay or transgender violates Title VII.  Justice Gorsuch wrote the opinion.

by:  Don Samuel

I used to think that the most common lawyer answer to client questions began with the qualifier, “It depends.” This generally is a prelude to a number of hypotheticals that demonstrate the lawyer’s knowledge of so many factors that would affect the answer to the client’s question:  “It depends which judge is assigned to the case.” Or “It depends on whether the statement is offered for the truth of the matter asserted, or not.”  Or “It depends on whether the co-defendant becomes a government witness.”  Or “It depends on whether the jury believes John or Joe.”  Or, "It depends if the expert prepares a written report or not."  
 
But now, I believe that the most common question asked by clients begins with the word, “When ...” (“When will the courts open?”  “When will trials be held?”  “When can I come to your office in person?”  “When will the judge rule on my Compassionate Release Petition?”) and I have determined through a sophisticated algorithm that since mid-March of this year, the most common lawyer answer to a client’s question begins with, “I don’t know.”   
 
Here is an exception:
 
I sent an email to a client on Friday that said, simply, “If you ask me one more question that begins with the word, ‘When …’ I am going to fire you as a client.”  
 
He responded, “When can I start asking you questions that begin with the word ‘When?’”
 
To which I replied, “You will need to ask your new lawyer that question.”

by:   Kristen Novay

Most of us lawyers may come out of quarantine feeling like we have forgotten how to practice law. As trial attorneys, it’s important that we keep our courtroom skills sharp in preparation for the inevitable back-to-back trials we will face when the courthouses re-open. Here are some helpful methods you can use at home with your children, partner, or loved ones to help you stay on the ball.
 

1. Keep your cross-examination techniques strong by practicing them on your family. For example, “Thank you for that information, dear, but you have yet to answer my question. Do you need me to repeat it for you?”
2. While you are working from home, train your children to ask to “approach the bench” before they discuss a matter with you. 
3. For appellate attorneys, insist that your children substitute the phrase “may I appeal” in lieu of bickering. For example, “Dad, may I appeal your order that 9 P.M. is too late for ice cream?” Then reverse yourself or sustain your original decision as you see fit.
4. Sprinkle some Latin phrases into your discussions! Fun for everyone and doesn’t need to be in the legal context. For example, “Before you eat that donut have you considered your summer corpus?”
5. When having a simple conversation or disagreement with your partner, helpfully suggest that their argument is based on “bad law” or some “Ninth Circuit nonsense.” The point is that it isn’t binding on you.
6. Randomly remind your family that they are “under oath.”
7. For those of you with pending cases in “less reasonable courtrooms,” put the family cat in a robe and let him decide disputes.
8. Is your partner spending too much on Amazon Prime? Train the family dog to sniff out packages, intercept them, and mark them as exhibits or use as evidence of his/her “lavish spending.” Was the package meant for you? No problem! Move to suppress it and explain the phrase “curtilage” to them. It’ll be a hoot.
9. For the prosecutors, take this time to sniff out the bad kids in the family. Offer to sell your child all the old Halloween or Easter candy for a reduced price by the kilo. Tell them you’ll accept machine guns instead of currency to seal the deal.
10. Use the Sentencing Guidelines for punishments. Bonus 5K if the kids snitch on a sibling!

 
If the above techniques don’t work—or work too well—we will happily represent your loved ones in the potential assault charges against you. 

by:  GUEST BLOGGER   DAVID MARKUS


First, let me congratulate Don on a wonderful addition to the blogosphere.  Like trial lawyers, we bloggers are a dying breed.  Second, let me thank him and Kamal for their thoughtful posts on my Washington Post piece. One reason I love blogging is that it gives us a chance to really explore issues that other social media platforms, like Twitter, aren't as good at. And third, I apologize for the length of this response. 
 
I understand that there are some strong feelings on both sides of this one, especially because it involves Trump and Flynn.  What I was trying to do in my argument was to take politics out of it.  What do we want judges doing in cases that aren’t political where both the government and the defense agree that dismissal is warranted?  It seems pretty obvious, at least to me, that judges should simply dismiss in those cases. 
 
If that’s the case, then we should want the same result here, perhaps even more so.  Judges simply are not equipped to deal with these sorts of political hot potatoes.  And when they try to, it typically results in the public losing confidence in the judiciary.  Bush v. Gore seems to be the best example of that.
 
Don makes the point that as a member of the public, he would like to know the reasons DOJ is dismissing.  Me too!  But Rule 48 is not meant as a fact-finding mission for the public.  The criminal justice system is set up to protect the rights of the defendant.  The public, not so much.  And that’s a good thing.  We don’t want to give the public standing to raise objections to plea agreements or other criminal case resolutions.  The legislative branch can have hearings to find out what happened.  And the public will certainly be able to exercise its will at the ballot box in November.
 
Don also raises the point that judges often reject agreements between the parties, including at sentencing.  Fair enough.  But I really believe that judges should not be able to go above the sentencing recommendations of the parties.  Lower, yes.  But not higher.  If the parties say that the defendant is not a leader, then who is the judge to say otherwise. In our adversary system, it’s up to the parties to present their case, not some non-lawyer, wanna-be-cop probation officer.  The judiciary is there to protect defendants, not to protect prosecutors.  Judges are free to reject deals, like Judge Breyer did recently in the California case I discussed in the WaPo piece, but only to help and protect the defendant’s rights.  Not to prod prosecutors into prosecuting or for more severe sentences. Prosecutors have enough power.  If they want to dismiss a case, let’s let them dismiss and move on the next one.  Our criminal justice system is bad enough as it is.  We don’t need judges acting as backstops for prosecutors.  They can take care of themselves.
 
Kamal also raises interesting points, the central one being that things are different because Flynn pleaded guilty.  I don’t agree, especially here where Flynn moved to set aside his guilty plea.  Our system, unfortunately, not only permits innocent people to plead guilty, it encourages it.  If you haven’t read it, take a look at Judge Jed Rakoff’s essay: Why Innocent People Plead Guilty. 
 
That’s why Kamal’s point that a plea hearing requires the active participation of a judge “to ensure that defendants aren’t being railroaded into admitting that they did something that they didn’t” might sound nice but isn’t based in what happens every day in every courtroom around the country.  Sadly, that hearing is very pro-forma.  Lawyers coach their clients how to get through it without getting asked a lot of additional questions.  Lawyers tell their clients to do what they have to do so that they can get the benefits of pleading guilty (like avoiding decades in prison or avoiding having a family member charged, as Flynn reportedly did). 

As for the cases he cites, Kamal agrees that the D.C. Circuit’s Fokker case supports my position.  Although the Supreme Court case he discusses, Rinaldi, declined to address the issue of whether a trial court had the discretion to reject a motion to dismiss where the defendant consented, it did explain that “[t[he principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant's objection.”  In other words, the leave of court provision in Rule 48 is there to protect defendants, not prosecutors or the public.

I will conclude with the point that Justice Ginsburg raised just this month in United States v. Sineneng-Smith.  A 9-0 Supreme Court (9-0!) reversed the Ninth Circuit for violating the party presentation principle, which says that judges should only decide the issues presented to them by the parties.  Justice Ginsburg explained: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.’”

by:  GUEST BLOGGER:  KAMAL GHALI,  Bondurant, Mixon, Elmore

One premise of David Markus’s position appears to be that once DOJ decides to initiate a case, it remains DOJ’s case, regardless of the procedural posture of the case (investigation, indictment, conviction, sentencing, appeal, habeas).  And for that reason, a federal judge should have (almost) no authority to deny DOJ’s motion to dismiss an indictment under Federal Rule of Criminal Procedure 48(a) when a defendant consents to that dismissal.  But, to make a point related to Don Samuel’s response, is it really true that it remains “DOJ’s case” after a conviction?  
 
After all, a guilty plea requires the active participation of the judge, including his or her independent fact-findings about whether the guilty plea is knowing, voluntary, and has a sufficient factual basis.  A judge can only make this finding after the defendant swears, under penalty of perjury, to tell the truth.  In other words, a plea hearing isn’t just an adversarial proceeding.  It is designed, in part, to ensure that defendants aren’t being railroaded into admitting that they did something that they didn’t. (Even those who believe that the guilty plea process does a bad job at preventing innocent people from pleading guilty can at least agree that the point of such a hearing is to make sure that doesn’t happen.). Here, the judge found that Flynn, a well-educated, three-star general, and former National Security Advisor, who was represented by Covington & Burling, made a “knowing and voluntary” plea. 
 
Although a judge’s failure to dismiss criminal charges before a conviction might raise a host of serious issues, why should we assume that DOJ retains complete control over the matter after conviction?  Is DOJ’s active participation even required after a guilty plea? Or after a jury finds a defendant guilty beyond a reasonable doubt? Once there’s a conviction, the federal judiciary’s own fact-finding machinery kicks in.  And under the Federal Rules, the U.S. Probation Office, not DOJ, is required to conduct its own sentencing investigation.  See Fed. R. Crim. P. 32(c) (“Required Investigation”).  Although there are a number of statutorily-mandated factors a court must consider before imposing a sentence, DOJ’s opinion on the appropriate sentence is not one of them.  18 U.S.C. 3553(a).  While DOJ still carries obligations and responsibilities after conviction, including its continuing obligation to disclose Brady evidence, the Federal Rules of Criminal Procedure do not appear to mandate its active participation in sentencing.
 
But what does it even mean to dismiss the indictment after conviction?  Does the document initiating charges much matter after a jury verdict or a guilty plea?  To that end, the text of Rule 48(a) itself doesn’t purport to apply after conviction.  Fed. R. Crim. P. 48(a) (“By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.”). Of course, there are cases applying Rule 48(a) to motions to dismiss after conviction. And there are other cases supporting DOJ’s position as well David Markus’s view that courts have limited authority to deny motions to dismiss.  See, e.g., United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016) (“A court thus reviews the prosecution's motion under Rule 48(a) primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial harassment’ of the defendant through repeated efforts to bring—and then dismiss—charges. So understood, the ‘leave of court’ authority gives no power to a district court to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution's desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant's alleged conduct. The authority to make such determinations remains with the Executive.”) (citations omitted).
 
But the only U.S. Supreme Court case to address the scope of Rule 48(a) after conviction acknowledges that a district judge has at least some authority to deny a motion to dismiss in certain circumstances. 
 
 In 1977, the U.S. Supreme Court wrote: 
 
Here, the Government filed a motion under Fed. Rule Crim. Proc. 48(a) seeking “leave of court” to dismiss the federal charges against petitioner. Under the standard applied by the Court of Appeals, the District Court was empowered to withhold leave if the Government's decision to terminate this prosecution clearly disserved the public interest . . . The salient issue, however, is not whether the decision to maintain the federal prosecution was made in bad faith but rather whether the Government's later efforts to terminate the prosecution were similarly tainted with impropriety. Our examination of the record has not disclosed (and we will not presume) bad faith on the part of the Government at the time it sought leave to dismiss the indictment against petitioner. The decision to terminate this prosecution, based as it was on the Petite policy, was motivated by considerations  which cannot fairly be characterized as clearly contrary to manifest public interest.
 
Rinaldi v. United States, 434 U.S. 22, 29–30 (1977) (citations omitted) (emphasis added).  The Supreme Court went on to reverse the district court’s denial of DOJ’s motion to dismiss an indictment (per Rule 48(a)) as an abuse of discretion. In dissent, Justice Rehnquist wrote, “Federal Rule Crim. Proc. 48(a) allows the United States to move to dismiss an indictment only ‘by leave of court.’ This proviso was specifically added as an amendment to the original draft, which had provided for automatic dismissal upon the motion of the United States, and would seem clearly directed toward an independent judicial assessment of the public interest in dismissing the indictment.” Id., at 34 (Rehnquist, J., dissenting) (emphasis added).  Notably, the majority took no issue with Justice Rehnquist’s history of Rule 48(a) as replacing a prior draft that would have required  “automatic dismissal” upon DOJ’s motion.  And the majority took no issue with the notion that a court has discretion to decide whether it is appropriate to dismiss the indictment (ruling only that the district court abused that discretion in the case before it).  But the Court didn’t spell out the scope of a district court’s discretion. 
 
I suppose there could be a rule that requires “automatic dismissal” of an indictment upon DOJ’s request, at any phase of the prosecution including after sentencing, provided that a defendant agrees.  But I don’t think Rule 48(a)’s text gives DOJ an absolute right to an immediate dismissal of criminal charges after conviction solely because a defendant agrees. This is not to say that Judge Sullivan’s decision to appoint Judge Gleeson doesn’t raise a host of other issues.  But it is to say that things change once a defendant is convicted. Of course, the judge could grant a motion to withdraw the guilty plea; he could set aside the conviction on various procedural grounds; and he could take a number of other steps to functionally stop this case. But given that a defendant swore under penalty of perjury that he committed a crime, that DOJ agreed that the defendant committed a crime, and that a federal judge found that the defendant committed a crime, there’s nothing inherently wrong with a judge asking hard questions about why this happened before he dismisses the case altogether.