Sunday, July 19, 2009

Just when you thought it was safe to go on vacation

It seems that the summer doldrums have hit. The courts are winding down and taking summer recesses. People are on vacation or thinking about vacation. However, a major 6th Amendment issue continues to percolate beneath the surface. The Eighth Circuit issued a decision on Friday containing a concurrence advocating a position which will be front and center until the Supreme Court steps in and puts the issue to rest. In U.S. v. Papakee, case # 08-2032, Judge Bright wrote separately to advocate that the use of acquitted conduct to enhance a sentence is unconstitutional. The authorization for the use of acquitted conduct under the Federal Sentencing Guidelines dates back to the Supreme Court's decision in United States v. Watts. Bright made the following observation in a footnote:

FN3 And in United States v. Booker, 543 U.S. 220, 240 (2005), the Supreme Court correctly characterized United States v. Watts, 519 U.S. 148, 157 (1997) as holding only that “the [Fifth Amendment’s] Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines.” But our court has interpreted Watts's narrow holding as applying to the use of acquitted conduct more broadly. See, e.g., United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998). It is clear to me that the myth of Watts has outgrown its actual holding. Stated plainly, Watts does not immunize the use of acquitted conduct from a challenge under the Sixth Amendment or the Due Process Clause of the Fifth Amendment.

The term "the myth of Watts" has an appealing ring to it. This issue has gotten an injection of hope with Justice Scalia's concurrence in Gall v. United States. He wrote: "The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory guideline range would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury."

The bottom line for federal court practioners is that they must be very careful during plea allocutions and sentencing arguments. If the Supreme Court moves the boat a little to adopt this argument you don't want to be left overboard.

Sunday, July 12, 2009


I admit, I'm an evidence geek ever since teaching the class at UW Law School in the late 90s. One issue that has always bothered me is the almost unrestricted use by the prosecution of using their case agent as a so called expert witness to summarize at the end of their case. For the most part, this evidence, while characterized as helping the jury understand something outside their general knowledge, is code for "I think that the defendant is guilty." (sorry for the sarcasm)

For me, the main irritant of this type of testimony has been what I see as the backdoor admission of character evidence. Testimony (significantly shortened for this entry) along the following lines: I have investigated 100s of drug cases, including the sale and distribution of cocaine. In my opinion, the packaging and code words in this case are consistent with the sale and distribution of cocaine. What the heck? To add salt to the wound this police expert testimony has been expanded to include testimony characterizing how victims of crimes typically act....way beyond the the two concepts that we are most familiar with: spousal abuse syndrome and rape trauma syndrome.

While a limited number of courts have been sensitive to this issue, the decision in Crawford has focused on a related problem that should result in courts being more thoughtful and analytical in determining admissibility. Crawford establishes that the Confrontation Clause of the 6th Amendment prohibits the introduction into evidence of out-of-court testimonial statements made by an absent witness. This rule has a tendency to collide and intersect with Fed. R. Evid. 703 (Wis. Stat. 907.03) and police expert witnesses. The court and the parties must be sensitive that the "expert" not be allowed to communicate out-of-court testimonial statements in the guise of expert opinion. In the latter part of 2008, the 2nd Circuit addressed this issue head on in the case of United States v. Mejia. While the opinion is too lengthy to summarize here, suffice it to say that the government crossed the line and the defendants' convictions were vacated due to the improper introduction of police expert testimony. It is the intention for this writer to revisit this issue on a recurrent basis as this practice threatens the integrity of the fact finding process and the proper role of the jury.

Sidenote: The governor finally selected the replacements for the three open judgeships in Dane County. The selections were not without their controversey. It is interesting to see the results in light of the Wisconsin State Journal's efforts to promote a merit based system for selecting our judiciary. Dane County has had the opportunity to participate in the Jacksonian-LaFollette direct election process (Genovese v. Ehlke) and the Hamiltonian modified merit process (McNamara, Anderson and Smith). Which worked best? Time will tell. More comments to follow.

Friday, July 3, 2009


I just so happens that some issues continue to arise. Within days of the Melendez-Diaz decision, the Supreme Court accepted cert in the case of Briscoe, et al v. Virginia. The issue as framed by Briscoe in his petition for cert is "when a prosecutor has introduced a certificate (can we say an affidavit?) of results for a forensic laboratory analysis without calling the analyst, does the state avoid confrontation clause problems by providing that the accused has a right to call the analyst as his own witness? Does this sound vaguely familiar? Didn't Scalia directly address this issue in Melendez-Diaz? Some see this is an effort by the dissent in Melendez-Diaz to modify the decision with the help of a new judge (Sotomayer) replacing one of the judges (Souter) who voted with the majority. Let's see what happens. Briscoe is represented by Jeff Fisher's wingman on 6th Amendment confrontation issues, Professor Richard Friedman from the University of Michigan Law School and author of The Confrontation Blog.

Facebook again.....A private investigator called me with some follow up questions on the propriety of accessing and using facebook information in an investigation on behalf of a lawyer involved in a civil case. Two issues immediately came to the forefront. The case was a civil case and did not involve the constitutional requirement of effective assistance of counsel. Second and more importantly was the fact that the witness was a party to the lawsuit represented by counsel. SCR 20:4.2 clearly prohibits contacting the party without the consent of their lawyer. Would it make any difference if the investigator merely views the facebook page and does not take the step of asking the witness/party to be a friend?

Finally, a recent Wisconsin court of appeals case, State v. James D. Miller, 2007 AP 1052-CR, revisits an old question that has been near and dear to my heart since I tried the case of State v. Shillcutt back in the 80s. During post trial proceedings I unsuccessfully attempted to secure a new trial for Mr. Shillcutt based on information from a juror that another juror had made racial comments during jury deliberations. In Miller's case, a juror had informed the defense that he had changed his vote to guilty because he had wanted to leave on a fishing trip with friends. Like Shillcutt, Miller was unsuccessful. Sec. 906.06, Stats. is a bear.