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Friday, July 21st, 2017

Limitations on In-Court Identifications

This article by the Marshall Project looks at recent efforts to limit in-court identifications. Led by the work of the Innocence Project, efforts to reduce wrongful convictions caused by in-court identifications are making progress.  Connecticut, for example, has prohibited in-court identifications unless the witness knew the defendant prior to witnessing the events at issue or previously picked the defendant out of a photo array or lineup.  Massachusetts has similarly revised its procedures for allowing in-court identification.  If you have a case in which the government is seeking to offer a first-time, in-court identification, the litigation and decisions related to the changes in Massachusetts and Connecticut can guide your efforts to preclude or limit such testimony.

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Monday, April 17th, 2017

“How to Become a State or Federal Defender,” NYC Bar Association Panel, Monday, April 17

The New York City Bar Association will be hosting a panel on “How to Become a State or Federal Defender” on Monday, April 17, 6pm – 8pm. Register here.

Description:
This panel will discuss the qualifications for and application process to become a public criminal State or Federal Defender in New York. Panelists will consist of State and Federal defenders from the regions encompassing the Southern and Eastern Districts of New York.

Panelists:
Shannon Cumberbatch, Recruiting and Hiring Manager, Bronx Defenders
Amanda David, Assistant Federal Defender, Federal Defenders of New York, Eastern District of New York
Jennifer Brown, Attorney-in-Charge of the SDNY Trial Unit, Federal Defenders of New York, Southern District of New York
Timothy B. Rountree, Attorney-in-Charge of the Criminal Defense Practice, Queens County, The Legal Aid Society

Moderator:
Vincent Southerland, Executive Director, NYU Law School’s Center on Race, Inequality, and the Law…

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Friday, April 7th, 2017

Sessions Establishes Task Force on “Crime Reduction and Public Safety”

Attorney General Jeff Sessions issued another memo to US Attorneys this week.  You can access the memo here.

In it, he establishes a “Task Force on Crime Reduction and Public Safety” to identify ways federal prosecutors “can more effectively combat illegal immigration and violent crime, such as gun crime, drug trafficking, and gang violence.”  The task force will review “existing policies in the areas of charging, sentencing, and marijuana to ensure consistency with the Department’s overall strategy on reducing violent crime and with Administration goals and priorities.”  The task force’s recommendations are due by July 27.

The task force is headed by Steve Cook, the president of the National Association of Assistant United States Attorneys.  If the views he has promoted as the head of that organization are an indication, the task force could recommend rolling back a lot of the reforms we have seen over the past couple …


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Thursday, March 16th, 2017

An Honest Assessment of Preet Bharara’s Record

David Patton, the Executive Director and Attorney-in-Chief at the Federal Defenders of New York, published an opinion piece in yesterday’s New York Daily News.  Patton points out that while much of the press following Bharara’s firing focused on his reputation as the “sheriff of Wall Street” or the drainer of the Albany swamp, these high-profile cases do not reflect the bulk of the work of his office.  Patton contends that Bharara’s record must also be assessed in the context of his decision to exercise his discretion to prosecute poor people of color, including those caught up in sting operations, through an expansive use of conspiracy and racketeering statutes, and to seek unreasonably high sentences, contributing to unnecessary and unequal terms of punishment.

You can read Patton’s Op-Ed here.

 

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Thursday, January 12th, 2017

New DOJ Guidelines for Photo Arrays

Earlier this month, the Department of Justice issued new guidelines for the use of photo array identification procedures.  You may find this useful in support your request for an expert in cases in which these procedures were not followed.

The ABA Journal has an update on the policy as well as links to the DOJ memo and other media coverage of the policy.

http://www.abajournal.com/news/article/new_justice_department_guidelines_aim_to_ensure_reliability_of_photo_arrays…


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Thursday, December 1st, 2016

The Unusual Nature of the Guidelines’ Fraud Loss Enhancements Is a Ground for Downward Variance

In an opinion written by Judge Newman, the Second Circuit today vacated the defendants’ sentences of 30 and 21 months, respectively, for food stamp fraud for the district court to consider imposing non-guideline sentences on the ground that the defendants’ Guidelines ranges were significantly increased by the loss enhancements, an unusual feature of the Guideline scheme. United States v. Algahaim, No. 15-2024(L)(2d Cir. Dec. 1 2016). The sentences here were “driven by the loss amount,” which increased the offense level from a 6-month base to levels 18 and 16 respectively. Slip op. at 9. The Court held: “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.” Id. at 11.

The Court acknowledged that the Commission had the authority to use loss amount …


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Monday, September 26th, 2016

Defense attorneys move to dismiss cases based on equal protection violations

Defense attorneys in Chicago have moved to dismiss cases on the basis that the Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) violated the equal protection clause by targeting people of color for its fake stash house sting cases.  The Federal Defenders, CJA Panel attorneys, and the Federal Criminal Justice Clinic at the University of Chicago have moved to dismiss three cases and plan to move to dismiss seven more in the coming weeks.

The motions are supported by a study conducted by Columbia Law School Professor Jeffrey Fagan.  The study ruled out race-neutral reasons for the selection of individuals targeted for the stings.

You can read more about the challenges, and access Professor Fagan’s study, here.

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Wednesday, August 10th, 2016

Second Circuit Updates – August 10, 2016

The Second Circuit didn’t decide any criminal cases today. But for your daily dose of criminal justice info, check out this new report about the views of crime victims on incarceration and punishment. A study by the Alliance for Safety and Justice found that the vast majority of crime victims would prefer that the criminal justice system focus more on rehabilitation than on punishment: about 60% of victims think that the criminal justice system should attempt to rehabilitate people convicted of crimes rather than giving them long prison sentences, and 70% support alternatives to incarceration. Could these statistics bolster your next sentencing argument? Download the full report here.…


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Friday, July 29th, 2016

Petition to file a Second or Successive 2255 petition is granted by the Circuit –in a Career Offender case based on Johnson and the cert. grant in Beckles — and the district court has discretion to proceed without waiting for the Beckles decision.

Today the Circuit amended its decision in Blow v. United States, No. 16-1530 (Katzmann, chief judge; Wesley and Hall, circuit judges). It added a single line at the end of the opinion to say that the district judge has discretion to proceed on Blow’s  2255 petition and  is not required to hold the petition in abeyance until the Supreme Court decides  Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016).

The Circuit’s initial opinion was filed about two weeks ago, on July 14, 2016. It granted Blow’s motion to file a Second or Successive 2255 petition. But it  “instructed” the district court to “hold Blow’s §2255 motion in abeyance pending the outcome of Beckles.

In Beckles,  the Supreme Court granted certiorari to decide whether Johnson v. United States, 135 S.Ct. 2551 (2015)  — which declared that the “residual clause” of the …


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Wednesday, July 13th, 2016

SDNY Judge Pauley Suppresses Evidence Obtained Through Warrantless Use of Stingray Device

In the first opinion of its kind, SDNY Judge William A. Pauley suppressed evidence obtained through the warrantless use of a stingray device.

You can read Judge Pauley’s opinion in United States v. Lambis here.  The New York Times has coverage of the case here.

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