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.

POLICE EXPERT WITNESSES

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.

A HODGEPODGE FOR THE WEEKEND OF THE FOURTH

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.

KUDOS TO JEFF FISHER-ANOTHER WIN (Melendez-Diaz)

If you needed someone to pitch the 7th game of the World Series, who would you have pitch? Sandy Koufax, Bob Gibson, someone else? If you have a sixth amendment confrontation issue on its way to the Supreme Court, who would you have represent you and argue the case? There is no question but the answer would be Jeffrey Fisher from the Stanford Law School. Jeff first burst on the scene with two huge wins in the Supreme Court in 2004 on behalf of criminal defendants grounded in 6th Amendment jurisprudence. See Blakely v. Washington, 542 US. 296 (2004) (6th Amendment right to trial by jury was violated where facts supporting the sentence were not admitted by the defendant or proven beyond a reasonable doubt to a jury) and Crawford v. Washington, 541 U.S. 36 (2004) (6th Amendment requires that the defendant be provided an opportunity to confront at trial, the declarant of testimonial statements). While he has handled other cases before the Supremes, it is his track record in the 6th Amendment arena which stands out.

Last week provided another case in the win column for Jeff (in the interest of full disclosure I do serve on NACDL's amicus curiae committee of which he is the chair). The Supreme Court in the case of Melendez-Diaz v. Massachusettes, in a 5-4 decision, held that the case involved "little more than the application of our holding in Crawford v. Washington, 541 U.S. 36. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out of court affidavits, and the admission of such evidence...was error." I will leave it to others to analyze the nuances or the significance of the decision being only 5-4 (technically 4-1-4). See The Confrontation Blog.

For immediate practice purposes two points must, however, be made. Justice Scalia, in pointing out the fallacies of the dissent and the state, emphasized that the ability to subpoena a witness is no substitute for the right of confrontation. He further noted that the burden is on the prosecution to present its witnesses and not on the defendant to bring in adverse witnesses. Second, in a serendipitous sort of way, the majority addressed the general overall failings of forensic evidence. The commonwealth had argued that the forensic science affidavits at issue in the case should be treated differently because they were the result of neutral scientific testing in contrast to testimony recounting historical events. All anyone had to do was to have read some portion of the report issued in February of 2009 by the National Academy of Science. With the exception of nuclear DNA analysis, the forensic evidence and its supporting methodology being introduced in criminal cases has failed to meet the necessary standards of certification, peer review, and effective oversight.

Sidenote: Local lawyers still wait for the Governor to make his selections for the Dane County bench. With a number of new judges (including the impending selections) on the criminal rotation there is a fair amount of concern as to who will be making future decisions. And, oh yeah, Brent Favre will never be forgotten.

EFFECTIVE ASSISTANCE OF COUNSEL: Redux (Investigating)

The previous discussion about ethically permissible investigative techniques involving FaceBook led to a related question this past week on NACDL's listserve. A question was posted inquiring whether it was permissible to record phone calls by a lawyer with a potential witness without consent or disclosure of the taping to the witness. Assume for a moment that a lawyer or an investigator acting on the lawyer's behalf candidly identifies themselves and their interest in the proceedings; i.e., the party whom they represent. However, they do not disclose that the phone call or the meeting is being tape recorded. Is this deceptive conduct under Rule 8.4? While the ultimate answer is dependent on all of the facts and circumstances of the interview, the conclusion is that the lawyer has probably not violated any ethical canons.

Ethical considerations are not the only problem for the lawyer. Depending on the state in question, the surreptitious recording of the conversation may violate the criminal code. In Wisconsin, Sec. 968.31, Stats., allows the recording of such phone calls as long as one party consents and the recording is not for purposes of furthering a criminal or tortious act.

The former Board of Professional Responsibility for the State of Wisconsin issued a formal ethics opinion on this exact question about 15 years ago. That opinion identified as E-94-5 concluded that there was no outright prohibition of such a recording but the lawyer had to be careful to consider a variety of ramifications when making such a recording. Importantly, the opinion made clear that a lawyer may never record a phone call or meeting with a client without the client's knowledge and consent.

The bottom line is that a lawyer needs to review 968.31 and E-94-5 before deciding to record or directing the investigator to record a witness interview. The lawyer also needs to be aware that such a recording will likely become discoverable evidence!

Sidenote: While much of the local buzz centered around the potential judicial choices for state and federal court, there was an extensive evidentiary hearing on the Amos Mortier case in Federal Court this past week. If there is a practice lesson to learn it is to make sure that any immunity agreements should be court ordered, or as a second choice, written.

EFFECTIVE ASSISTANCE OF COUNSEL: Investigating Facebook Pages

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. Rompilla v. Beard 545 U.S. 374, 387 (2005) This constitutional duty to thoroughly investigate sometimes comes into conflict or overlaps with an individual lawyer's ethical obligations.

It is well known (especially in a college community such as Madison, WI) that witnesses will post personal information on Facebook or MySpace. This personal information may include not only discussion about the case in question but also potential impeachment material. How far can defense counsel go in attempting to access and secure this data? How does one balance the constitutional requirement of providing effective assistance of counsel with various ethical rules?

Recently, The Philadelphia Bar Association Professional Guidance Committee issued an opinion which impacts on approaching the Facebook/MySpace issue. Counsel asked for an opinion as to the propriety of having a 3rd party (who would truthfully identify himself but would not disclose his relationship to the lawyer) seek to be a "friend" of the witness and thus be able to access the witness's personal Facebook pages and provide any relevant information observed back to counsel. The committee determined that the proposed course of conduct would violate Pennsylvania Rule of Professional Conduct 8.4(c) because the planned communication by the third party with the witness was deceptive. The opinion goes on to find that the conduct would also violate Rule 4.1(a) and cites to a couple of law review articles and state supreme court decisions.

Does this impact on the criminal defense practitioner in Wisconsin? Significantly, the Philadelphia Bar Opinion involves a civil case and not a criminal case. While criminal defense lawyers have the same responsibilities to their clients and the public as do civil counsel, criminal defense lawyers must take into account constitutional criminal procedure and the additional burden that they hold a person's life in their hands. The seriousness of the consequences do not justify ignoring ethical obligations. However, the constitutional considerations definitely impact on the reach and ultimate applicability of the ethical rule in question. Indeed, that was just the finding which caused the OLR case against fellow Madison defense counsel Steve Hurley to be dismissed. Rule 8.4(c) is not infinitely broad and is qualified --especially when it unduly interferes with a criminal defendant's constitutional right to effective assistance of counsel.

OFF TOPIC...recently it was reported that Jerry Koosman of the 'Miracle Mets' pled guilty to a criminal tax charge of failure to file in the Western District of Wisconsin. I show my age by recalling that the Sports Illustrated article celebrating their 1969 World Series victory was entitled "Never Pumpkins Again." Oh the irony! What most older locals really recall is the collapse by the Cubs during September of that year. Koosman, 17-9, was the second pitcher of a rotation featuring Tom Seaver, Gary Gentry and Nolan Ryan. Once again a lesson that we should not put athletes on a pedestal.

A VERY BUSY WEEK FOR THE FUTURE

While the big news out of Washington, D.C. this week was the nomination of Sonia Sotomayor by the President for the Supreme Court, locally the significant question of who will replace Judge Shabaz and the three open circuit court judgeships moved forward.  Louis Butler and William Conley were recommended by Senators Kohl and Feingold to the White House to replace Judge Shabaz.  One of the key issues being discussed by local lawyers is how will the new judge view the rocket docket?  The general position of criminal defense lawyers is well known.   It must be tempered if not eliminated.  Speed for speed's sake does not mean justice.  In contrast, the Western District Bar Association published a letter in its recent newsletter asking the Federal Nominating Panel to include among the individuals recommended to the Senators, a lawyer who values the rocket docket.  

Of the original 28 applicants for the 3 open judgeships in Dane County, 14 remained as of this past Wednesday.  Those 14 were interviewed by the selection panel last week.  Due to his recent race for Judge Nowakowski's open seat, AUSA Stephen Ehlke is viewed by most as a favorite for one of the three positions.  It's anyone's guess for the other two.

Front and center this past week, however, was the Supreme Court's decision in Montejo v. Louisiana. http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf  While the ultimate import of this decision will work its way out in the upcoming years, the 5 person majority explicitly overruled Michigan v. Jackson, 475 U.S. 625 (1986) demonstrating once again the triumph of that group of legal theorists who advocate for the demise of evidence suppression as a remedy for constitutional violations.  I believe that the best comment about the decision and its impact on the criminal defense practice was made by Bill Tyroler.  Bill opined: Out the window, such cases as:State v. Todd Dagnall, 2000 WI 82, ¶4 (“We hold that Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge.”); State v. James H. Hornung, 229 Wis.2d 469, 600 N.W.2d 264 (Ct. App. 1999) (“the strict requirements for ‘unequivocally and unambiguously’ asserting one's right to counsel under the Fifth Amendment are somewhat less stringent under the Sixth Amendment.”). As a matter of pragmatics, it’s probably fair to suppose an increase in efforts at post-charging interrogation.