Frank Dunham Federal Criminal Defense Conference

THE OFFICES OF THE FEDERAL PUBLIC DEFENDERS FOR THE EASTERN AND WESTERN DISTRICTS OF VIRGINIA

JOINTLY PRESENT THE TENTH

FRANK DUNHAM FEDERAL CRIMINAL DEFENSE CONFERENCE

Thursday, April 6 - Friday, April 7, 2017 Boar’s Head Inn, Charlottesville, Virginia THIS PAGE INTENTIONALLY LEFT BLANK TABLE OF CONTENTS

Program Schedule...... iv

Faculty Information...... vi

Fourth Circuit Update...... 1

Discussion overview...... 1

Frances H. Pratt & Patrick Bryant, Fourth Circuit Decisions on Criminal Law and Procedure (April 1, 2016 - March 30, 2017)...... 3

The Effects of Implicit Bias on the Prosecution, Defense, and Courts in Criminal Cases...... 25

Presentation Outline...... 26

Ethical Considerations When Clients Want to (or Did) Testify...... 33

Discussion overview...... 33

Hypotheticals...... 35

Virginia Rules of Professional Responsibility, Amendments to Rule 1.6 and Rule 3.3...... 43

Supreme Court Review and Preview...... 77

Paul M. Rashkind, United States Supreme Court: Review, Preview, and Overview of Criminal Cases (as of March 29, 2017)...... 78

Litigation Strategies in Opioid Cases...... 121

Discussion overview...... 121

Presentation outline...... 123

FDFCDC i R. E. Ferner, Post-Mortem Clinical Pharmacology, 66 British J. Clin. Pharm. 430 (2008)...... 136

CJA Breakout: Obtaining Expert and Other Litigation Support Services...... 151

Presentation slides...... 152

Presentation outline...... 161

Guide to Judicial Policy, Vol. 7, Ch. 3, Authorization and Payment for Investigative, Expert, or Other Services...... 173

Texts, 18 U.S.C. § 3006A(3) and § 3599(g)(2)...... 195

Sample, Ex Parte Motion to Appoint and Compensate a Paralegal...... 197

Sample, engagement letter...... 201

FPD Breakout: Maximizing Attorneys’ Effective Use of defenderData...... 203

Discussion overview...... 203

Presentation slides (Defender Services Office)...... 205

Presentation slides (Justice Works)...... 214

Neuropsychology and Sentencing Mitigation: The New Frontier...... 223

Discussion overview...... 223

Presentation slides (Marcopulos)...... 224

Presentation slides (Capestany)...... 245

Nita A. Farahany, Neuroscience and Behavioral Genetics in US Criminal Law: An Empirical Analysis, 2 J. L. & Biosciences 485 (2016) ...... 253

FDFCDC ii Ethics: Game Show Potpourri, Round IV...... 279

Discussion overview...... 279

The Monster Called File Retention, 61 Va. Lawyer 62 (Dec. 2012). . . . . 281

LEO 542, Revealing a Contemplated Crime (2010)...... 283

LEO 1305, Disposition of Clients’ Closed Files (1989)...... 284

LEO 1802, Advising Clients on the Use of Lawful Undisclosed Recording (2010)...... 286

LEO 1862, “Timely Disclosure” of Exculpatory Evidence and Duties to Disclose Information in Plea Negotiations (2012)...... 295

In re: Brown, No. CL09-5166 (Norf. Cir. Ct. 2009) (Va. St. Bar No. 08-021-072452)...... 299

FDFCDC iii PROGRAM SCHEDULE

Thursday, April 6

1:30 Program check-in begins (Original Ballroom - Foyer)

2:30 Welcome and Introduction Geremy Kamens, FPD ED Va. (Original Ballroom) Larry Shelton, FPD WD Va.

2:35 Fourth Circuit Update Alan DuBois, AFPD EDNC (Original Ballroom) Patrick Bryant, RWA ED Va.

3:35 Break (Original Ballroom - Foyer)

3:50 The Effects of Implicit Bias on the Prose- Wayne McKenzie, Esq. cution, Defense, and Courts in Criminal Cases (Original Ballroom)

4:50 Adjourn for evening

Friday, April 7

7:30 Continental breakfast begins (Grand Ballroom, Pavilion I and II)

8:00 Program check-in continues

8:25 Welcome and Introduction Geremy Kamens, FPD ED Va. (Original Ballroom) Larry Shelton, FPD WD Va.

8:30 Ethical Considerations When Clients Tom Spahn, Esq. Want to (or Did) Testify (Original Ballroom)

9:30 Break (Original Ballroom - Foyer)

FDFCDC iv 9:45 Supreme Court Review and Preview Paul Rashkind, AFPD SD. Fla. (Original Ballroom)

10:45 Litigation Strategies in Andrea Harris, AFPD WD Va. Opioid Cases Lisa Lorish, AFPD WD Va. (Original Ballroom) Aaron Cook, CJA WD Va.

11:45 Keynote Address Hon. Michael S. Nachmanoff (lunch provided) U.S. Magistrate Judge, ED Va. (Grand Ballroom, Pavilion I and II)

1:15 CJA Breakout: Obtaining Expert Larry Dash, CJA Budgeting Atty and Other Litigation Support Fred Heblich, AFPD WD Va. Services Hon. Robert Ballou, U.S. (Original Ballroom) Magistrate Judge, WD Va.

1:15 FPD Breakout: Maximiming Attorneys’ Mike Tate, Justice Works Effective Use of defenderData Bob Boucher, Defender Services (Ednam Hall) Todd Watson, Defender Services

2:15 Break (Original Ballroom - Foyer)

2:30 Neuropsychology and Sentencing Dr. Bernice Marcopulos, JMU Mitigation: The New Frontier Beatrice Capestany, Duke Univ. (Original Ballroom) Fay Spence, FAFPD WD Va.

3:30 Ethics: Game Show Potpourri, Ken Troccoli, AFPD ED Va. Round IV Maria Jacob, AFPD ED Va. (Original Ballroom)

4:30 Complete evaluations and adjourn

FDFCDC v FACULTY INFORMATION

ROBERT S. BALLOU U.S. Magistrate Judge, Western District of Virginia

Education: B.A. 1984, University of Virginia; J.D. 1987, University of Virginia School of Law

Professional: Law clerk, Hon. Peter Beer, U.S. District Court, Eastern District of Louisiana, 1987-88; private practice, Christian, Barton, Epps, Brent & Chappell, Richmond, Virginia, 1988-92; private practice, Johnson, Ayers & Matthews, Roanoke, Virginia, 1992-2011; U.S. magistrate judge, Roanoke, Virginia, 2011-present

ROBERT L. BOUCHER Social Science Analyst, Defender Services Office, Administrative Office of the U.S. Courts, Washington, DC

Education: B.A. 1991, Boston College; M.A. 1992, Stony Brook University; Ph.D. 1997, Stony Brook University

Professional: Visiting instructor, Department of Government, University of Notre Dame, 1995-97; visiting assistant professor, Department of Government, American University, 1997-98; director, School of Public Affairs Computer Laboratory, American University, 1998-2001; consultant, ARPC (economic consulting firm), Washington, DC, 2001-10; social science analyst, Defender Services Office, Administrative Office of the U.S. Courts, Washington, DC, 2010-present

PATRICK L. BRYANT Appellate Attorney, Office of the Federal Public Defender, Eastern District of Virginia

Education: B.A. 1998, Duke University; J.D. 2002, Washington and Lee University School of Law

Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2002-04 and 2005-07; law clerk, Hon.

FDFCDC vi Charles R. Wilson, U.S. Court of Appeals for the Eleventh Circuit, Tampa, Florida, 2004-05; appellate attorney, Office of the Federal Public Defender, Alexandria, Virginia, 2007-present

BEATRICE H. CAPESTANY P h .D. c an d i d at e, Psychology an d Neuroscience Department, Duke University

Education: B.A. 2009, Vassar College; M.A. 2015, Duke University; Ph.D. 2017 (expected), Duke University

Professional: Teaching assistant, Department of Psychology, Duke University, 2013-15; instructor of record, Department of Psychology, Duke University, 2015-16; guest lecturer, Duke University, 2014-16; co-author of several publications and co-presenter of multiple posters at conferences

AARON L. COOK Cook Attorneys PC, Harrisonburg, Virginia

Education: B.A., B.S. 1991, Liberty University; J.D. 1994, University of Virginia School of Law

Professional: Assistant commonwealth’s attorney, Harrisonburg, Virginia, 1995-2000; private practice, Cook Attorneys, PC, Harrisonburg, Virginia, 2000-present; CJA panel member, 2001-present

LARRY M. DASH CJA Case Budgeting Attorney, U.S. Court of Appeals for the Fourth Circuit

Education: B.A. 1982, Columbia College (Missouri); J.D. 1989, Touro College, Jacob D. Fuchsberg Law Center

Professional: Assistant staff judge advocate, U.S. Air Force, 1991-94; circuit trial counsel, U.S. Air Force, 1994-97; associate, Greg D. McCormack, P.C., Virginia Beach, Virginia, 1997-98; private practice, Newport News, Virginia, 1998-2001; assistant federal public defender, Norfolk, Virginia, 2001-14; CJA case budgeting attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2014-present

FDFCDC vii G. ALAN DUBOIS First Assistant Federal Public Defender, Eastern District of North Carolina

Education: B.A. 1984, Duke University; J.D. 1987, University of Virginia School of Law

Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 1988-89; assistant federal public defender (senior appellate attorney), Raleigh, North Carolina, 1989-2013; first assistant federal public defender, Raleigh, North Carolina, 2013-present

ANDREA LANTZ HARRIS Assistant Federal Public Defender, Western District of Virginia

Education: B.A. 1988, University of Notre Dame; J.D. 1994, University of Louisville

Professional: Solo practitioner, Charlottesville, Virginia, 1995-99; assistant public defender, Charlottesville Public Defender Office, 1999- 2006; assistant federal public defender, Charlottesville, Virginia, 2006-present

FREDERICK T. HEBLICH JR. First Assistant Federal Public Defender, Western District of Virginia

Education: B.A. 1971, University of Virginia; J.D. 1982, University of Virginia School of Law

Professional: Private practice, 1982-2006 (partner, Tucker, Parker & Beskin and Parker, McElwain & Jacobs; also solo practitioner); supervisory assistant federal public defender, Charlottesville, Virginia, 2006-16; first assistant federal public defender, Charlottesville, Virginia, 2016-present; director, Criminal Defense Clinic, University of Virginia Law School, 2002-present

FDFCDC viii MARIA N. JACOB Assistant Federal Public Defender, Eastern District of Virginia

Education: B.A. 2008, University of Toledo; J.D. 2011, Georgetown University Law Center

Professional: Deputy public defender, Office of the Public Defender, Clark County, Nevada, 2011-15; reentry policy analyst, Council of State Governments Justice Center, Bethesda, Maryland, Jan.-Sept. 2016; assistant federal public defender, Alexandria, Virginia, September 2016-present

LISA M. LORISH Assistant Federal Public Defender, Western District of Virginia

Education: A.B. 1999, Princeton University, J.D. 2008, University of Virginia School of Law

Professional: Associate, Sullivan & Cromwell LLP, London, UK and Washington DC, 2008-11; associate, McGuireWoods LLP, Charlottesville, Virginia, 2011-14; assistant federal public defender, Charlottesville, Virginia 2014-present

BERNICE A. MARCOPULOS Professor of Graduate Psychology, James Madison University; Associate Professor of Psychiatry and Neurobehavioral Sciences, University of Virginia School of Medicine

Education: B.A. 1980, University of Florida; M.A. 1982, University of Victoria (British Columbia); Ph.D. 1986, University of Victoria

Professional: Research health scientist, School of Medicine, Stanford University, 1986-88; lecturer, European Division, The University of Maryland, 1988-89; geriatric neuropsychologist, Western State Hospital, Staunton, Virginia, 1989-92; director and clinical neuropsychologist, Division of Behavioral Medicine and Neuropsychology, Western State Hospital, Staunton, Virginia, 1991-2011; assistant and associate professor, School of Medicine, University of Virginia, 1990-present; associate professor and

FDFCDC ix professor, Department of Graduate Psychology, James Madison University, 2011-present

WAYNE S. MCKENZIE General Counsel, New York City Department of Probation

Education: B.S. 1986, City College of New York; J.D. 1989, George Washington University School of Law

Professional: Assistant district attorney (deputy bureau chief), Kings County District Attorney’s Office, Brooklyn, New York, 1990-2005; founding director, Prosecution and Racial Justice Program, Vera Institute, New York, New York, 2005-11; general counsel, New York City Department of Probation, 2011-present

PAUL M. RASHKIND Supervisory Assistant Federal Public Defender, Southern District of Florida

Education: B.B.A. 1972, University of Miami; J.D. 1975, University of Miami School of Law

Professional: Assistant state attorney, Miami, Florida, 1975-78; chief assistant state attorney (appeals), Miami, Florida, 1977-78; associate, Sams Gerstein & Ward, 1978-83; partner, Bailey, Gerstein, Rashkind & Dresnick, 1984-92; chief of appeals and supervisory assistant federal public defender, Miami, Florida, 1992-present

FAY F. SPENCE Assistant Federal Public Defender (Senior Litigator), Western District of Virginia

Education: B.A. 1982, St. Leo College; J.D. 1987, Marshall-Wythe School of Law, College of William & Mary; M.A. 2005, Old Dominion University

Professional: Associate attorney, Knight, Dudley, Dezern & Clarke, Norfolk, Virginia, 1987-92; trial attorney, Nationwide Insurance Trial Division, Norfolk, Virginia, 1992-95; lead trial attorney, Nationwide Insurance Trial Division, Norfolk, Virginia, 1995- 2001; partner, Clarke, Dolph, Rapaport, Hardy & Hull, Norfolk,

FDFCDC x Virginia, 2001-02; deputy public defender, Norfolk Public Defender’s Office, Norfolk, Virginia, 2002-05; public defender for the City of Newport News, Virginia, 2005-06; assistant federal public defender, Roanoke, Virginia, 2006-07; first assistant federal public defender, Roanoke, Virginia, 2007-16; assistant federal public defender (senior litigator), Roanoke, Virginia, 2016-present

THOMAS E. SPAHN Partner, McGuireWoods LLP, McLean, Virginia

Education: B.A. 1974, Yale University; J.D. 1977, Yale Law School

Professional: Associate and partner, McGuireWoods, LLP, 1977-present; author, The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia Law Foundation, 2013), Virginia Legal Ethics Opinion Summaries, and numerous articles; speaker at over 1,500 CLE programs; past and present professional service includes membership on the Virginia Bar’s Legal Ethics Committee, the Virginia Judicial Ethics Advisory Committee, the ABA Standing Committee on Ethics and Professional Responsibility, the American Law Institute (member), and the American Bar Foundation (fellow)

MICHAEL L. TATE [Managing] Lead, Software Testing and Support, Justice Works LLC, Centerville, Utah

Education: B.A. 2005, Weber State University; J.D. 2007, University of Arkansas School of Law, Fayetteville; M.S. 2009, Electrical Engineering, University of Colorado at Boulder

Professional: Software QA engineer, CaseData/Océ, Bountiful, Utah, 2002-06; IT/legal assistant, Krupp Robins Inc., Greenwood Village, Colorado, 2007-08; software QA engineer, The Church of Jesus Christ of Latter-Day Saints, Salt Lake City/Riverton, Utah, 2008-10, 2012-13; patent attorney, Wilson Ham & Holman, Farmington, Utah, 2010-12; [managing] lead, software testing and support, Justice Works LLC, Bountiful/Centerville, Utah, 2013-present

FDFCDC xi KENNETH P. TROCCOLI Assistant Federal Public Defender (Senior Litigator), Eastern District of Virginia

Education: B.A. 1981, Boston College; J.D. 1984, George Washington University Law School; LL.M. 2001, Georgetown University Law Center

Professional: Law clerk, Hon. H. Carl Moultrie, Superior Court of the District of Columbia, Washington, DC, 1984-85; associate, Krooth & Altman, Washington, DC, 1986-88; associate, Arent Fox Kintner Plotkin & Kahn, Washington, DC, 1988-91; associate, Cadwalader Wickersham & Taft, Washington, DC, 1991-92; assistant/senior assistant public defender, Alexandria, Virginia, 1992-99; assistant federal public defender, Alexandria, Virginia, 2002-present; adjunct professor, American University Washington College of Law, 2012-present

W. TODD WATSON Data Analytics and Training Attorney, Defender Services Office, Administrative Office of the U.S. Courts, Washington, DC

Education: B.A. 1992, University of Richmond; J.D. 1995, University of Virginia School of Law

Professional: Associate, Compton & Duling, LC, Woodbridge, Virginia, 1995-96; assistant commonwealth’s attorney, Stafford County, Virginia, 1996-2000; co-founding member and owner, Hargett & Watson PLC, Richmond, Virginia, 2001-08; assistant federal public defender, Alexandria, Virginia, 2008-15; attorney, Federal Defender Program, Chicago, Illinois; 2015-17; data analytics and training attorney, Defender Services Office, Administrative Office of the U.S. Courts, Washington, DC, 2017-present

FDFCDC xii FOURTH CIRCUIT UPDATE

G. Alan DuBois Patrick L. Bryant

DISCUSSION OVERVIEW

I. State of the Fourth Circuit

II. Developments in Fourth Circuit Case Law

A. Plea agreements and breaches

1. Conditional pleas (Fitzgerald)

2. Government breaches of agreements (Warner, Tate)

B. Fourth Amendment issues

1. Warrants (Lull, Graham)

2. Reasonable suspicion (Bryant, Robinson)

3. Traffic stops (Hill)

C. Violent felonies and crimes of violence

1. State common-law robbery (Winston, Gardner, Doctor)

2. Federal robbery (carjacking) (Evans)

3. Burglary (White)

4. Attempt (Dozier)

5. “Occasions different from one another” (Linney)

FDFCDC 1 D. SORNA and sex offender conditions

1. Use of offender’s prior statements at sentencing (Lara)

2. Supervised release conditions (Douglas)

E. Application of Sentencing Guidelines

1. Selection of Chapter Two offense guideline (Williams)

2. Relevant conduct (Agyekum)

F. Grand juries / jury instructions

1. Use of grand jury evidence at trial (Alvarado)

2. Definition of “willfully” (Blankenship)

G. Constitutional challenges

1. Unlicensed firearms dealing (Horsford)

2. Use of ethnic stereotypes (Garcia-Lagunas)

FDFCDC 2 FOURTH CIRCUIT DECISIONS ON CRIMINAL LAW AND PROCEDURE

Published Between April 1, 2016, and March 30, 2017

Prepared by Frances H. Pratt, Assistant Federal Public Defender, and Patrick L. Bryant, Appellate Attorney, Office of the Federal Public Defender, Alexandria, Virginia

FDFCDC 3 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page i

TABLE OF CONTENTS

INTRODUCTION...... 1

I. OFFENSES...... 1

8 U.S.C. § 1326, Illegal Reentry After Removal...... 1

14 U.S.C. § 88, Communicating False Distress Signal...... 2

16 U.S.C. § 3372, Lacey Act / 16 U.S.C. § 5151, Bass Act...... 2

18 U.S.C. §§ 922, 924, Firearms...... 2

18 U.S.C. § 2111 et seq., Robbery and Burglary...... 2

18 U.S.C. § 2421 et seq., Transportation, etc, for Illegal Sexual Activity...... 3

21 U.S.C. § 841 et esq., Controlled Substance Offenses...... 3

30 U.S.C. § 820, Penalties for Violations of Mandatory Mining Health or Safety Standards...... 3

II. COMMERCE CLAUSE ISSUES...... 3

III. SECOND AMENDMENT ISSUES...... 4

IV. FOURTH AMENDMENT ISSUES...... 4

Automobile Exception...... 4

Reasonable Suspicion...... 4

Inventory Searches...... 5

Warrants...... 5

Exclusionary Rule...... 6

FDFCDC 4 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page ii

V. FIFTH AMENDMENT ISSUES (Pre-trial and Trial)...... 6

Due Process...... 6

Grand Jury / Indictment...... 7

Selective Enforcement / Prosecution...... 7

VI. SIXTH AMENDMENT ISSUES (Pre-trial and Trial)...... 7

Confrontation...... 7

Counsel...... 7

VII. OTHER PRE-TRIAL ISSUES...... 8

Discovery (Fed. R. Crim. P. 16)...... 8

Subpoenas (Fed. R. Crim. P. 17)...... 8

VIII. TRIAL ISSUES...... 8

Jury Selection...... 8

Evidence...... 8

Confrontation...... 8

Federal Rules of Evidence 401 et seq...... 8

Federal Rules of Evidence 701 et seq...... 9

Sufficiency of Evidence...... 9

Jury Instructions...... 9

Closing Arguments...... 9

IX. PLEA ISSUES...... 10

Plea Agreement Provision...... 10

FDFCDC 5 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page iii

Entry of Guilty Plea (Fed. R. Crim P. 11)...... 10

X. SENTENCING ISSUES...... 10

Constitutional Considerations...... 10

Fifth Amendment...... 10

Sentencing Statutes...... 11

18 U.S.C. § 924(e), Armed Career Criminal Act (ACCA)...... 11

18 U.S.C. § 2251(e), Penalties for Sexual Exploitation of Children...... 11

Sentencing Guidelines...... 12

U.S.S.G. § 1B1.3, Relevant Conduct...... 12

U.S.S.G. § 2B1.1, Fraud...... 12

U.S.S.G. § 2B3.1 et seq., Robbery...... 12

U.S.S.G. § 2D1.1 et seq., Drug Offenses...... 12

U.S.S.G. § 2L1.2, Illegal Reentry After Removal...... 13

U.S.S.G. § 2S1.1 et seq., Money Laundering...... 14

U.S.S.G. § 3B1.1 et seq., Role Adjustments...... 14

U.S.S.G. § 4B1.1 et seq., Career Offenders and Other Recidivists...... 14

Reasonableness of Sentence...... 14

Restitution and Forfeiture...... 15

Supervised Release...... 15

XI. APPELLATE ISSUES...... 16

Reviewability of Issues...... 16

FDFCDC 6 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page iv

XII. POST-CONVICTION ISSUES...... 16

18 U.S.C. § 3582, Modification of Sentence of Imprisonment After Imposition...... 16

FDFCDC 7 FOURTH CIRCUIT DECISIONS ON CRIMINAL LAW AND PROCEDURE Published between April 1, 2016, and March 30, 2017

Prepared by Frances H. Pratt, Assistant Federal Public Defender, and Patrick L. Bryant, Appellate Attorney, Office of the Federal Public Defender, Alexandria, Virginia

INTRODUCTION

This outline documents the published decisions of the Fourth Circuit over the past twelve months that address criminal law and procedure issues encountered by court-appointed attorneys or relevant to court-appointed representation, primarily on direct appeal. Decisions that represent defense wins or otherwise contain defense-favorable findings are marked by an exclamation point (!). Decisions that, in the compilers’ judgment, are significant because they contain particularly lengthy, thoughtful, or otherwise useful discussion are marked by an asterisk (*). Note that not every issue raised in a decision is reflected in the outline. Please report errors or omissions in the outline to the compilers at [email protected].

I. OFFENSES

8 U.S.C. § 1326, Illegal Reentry After Removal

! Mena v. Lynch, 820 F.3d 114 (4th Cir. Apr. 27, 2016) (Shedd, J.; Wilkinson, J., dissenting) (BIA) (federal offense of knowingly receiving either stolen or embezzled property, in violation of 18 U.S.C. § 659, is not categorically a theft offense and therefore does not qualify as aggravated felony)

Alvarez v. Lynch, 828 F.3d 288 (4th Cir. July 7, 2016) (Thacker, J.) (BIA) (Virginia conviction for forging a public record, in violation of Va. Code § 18.2-168, qualifies as aggravated felony)

! Larios-Reyes v. Lynch, 843 F.3d 146 (4th Cir. Dec. 6, 2016) (Gregory, J.) (BIA) (Maryland conviction for third-degree sex offense, Md. Code, Crim. Law § 3-307, does not qualify as aggravated felony because offense proscribes more conduct than does federal offense of sexual abuse of a minor)

United States v. Lopez-Collazo, 824 F.3d 453 (4th Cir. June 1, 2016) (Traxler, J.; Gregory, J., dissenting) (D. Md.) (on appeal by government of dismissal of indictment in 8 U.S.C. § 1326 prosecution, reversing after finding that even if defendant’s removal proceeding was procedurally defective because defendant was not provided Spanish translations of removal charges and his rights in contesting them, defendant was not prejudiced where he was subject to expedited removal due to his Maryland conviction for second-degree assault, which was aggravated felony under circuit precedent at time of defendant’s removal)

FDFCDC 8 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 2

United States v. Morena-Tapia, 848 F.3d 162 (4th Cir. Jan. 26, 2017) (Harris, J.) (M.D.N.C.) (although prior convictions giving rise to defendant’s removal from United States were vacated in state court on basis of Padilla v. Kentucky, 559 U.S. 356 (2010), convictions remain valid as matter of federal law because Padilla does not apply retroactively, see Chaidez v. United States, 133 S. Ct. 1103 (2013), and thus do not provide basis for collateral attack on removal (the reentry after which resulted in § 1326 prosecution) pursuant to § 1326(d))

14 U.S.C. § 88, Communicating False Distress Signal

United States v. Serafini, 826 F.3d 146 (4th Cir. June 10, 2016) (Wilkinson, J.) (E.D. Va.) (cost provision of 14 U.S.C. § 88(c), which holds an individual “liable for all costs the Coast Guard incurs as a result of the individual’s action” in communicating false distress message, authorizes district court to order restitution to Coast Guard for its response)

16 U.S.C. § 3372, Lacey Act / 16 U.S.C. § 5151, Bass Act

United States v. Saunders, 828 F.3d 198 (4th Cir. July 5, 2016) (per curiam) (E.D.N.C.) (on appeal by government, reversing grant of motion to dismiss indictment alleging Lacey Act violations for catching Atlantic striped bass in federal waters; rejecting claim of unconstitutional vagueness)

18 U.S.C. §§ 922, 924, Firearms

N.B.: for cases addressing the Armed Career Criminal Act, see Part X, Sentencing Statutes.

United States v. Hosford, 843 F.3d 161 (4th Cir. Dec. 6, 2016) (Gregory, J.) (D. Md.) (prosecution for unlicensed firearms dealing, 18 U.S.C. § 922(a)(1)(A), does not violate Commerce Clause or Second or Fifth Amendments)

United States v. Evans, 848 F.3d 242 (4th Cir. Feb. 2, 2017) (Keenan, J.) (E.D.N.C.) (carjacking in violation of 18 U.S.C. § 2119 qualifies as “crime of violence” for purpose of serving as predicate offense for violation of 18 U.S.C. § 924(c))

18 U.S.C. § 2111 et seq., Robbery and Burglary

! United States v. Bailey, 819 F.3d 92 (4th Cir. Apr. 12, 2016) (Davis, J.) (M.D.N.C.) (reversing carjacking conviction under 18 U.S.C. § 2119 for insufficient evidence of intent, whether conditional or unconditional, to kill or seriously harm vehicle’s driver if necessary to take vehicle)

United States v. Evans, 848 F.3d 242 (4th Cir. Feb. 2, 2017) (Keenan, J.) (E.D.N.C.) (carjacking in violation of 18 U.S.C. § 2119 qualifies as“crime of violence” for purpose of serving as predicate offense for violation of 18 U.S.C. § 924(c))

FDFCDC 9 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 3

18 U.S.C. § 2421 et seq., Transportation, etc, for Illegal Sexual Activity

United States v. Clarke, 842 F.3d 288 (4th Cir. Nov. 18, 2016) (Wynn, J.) (E.D. Va.) (in question of first impression in circuit, holding that communications with intermediary aimed at persuading, inducing, enticing, or coercing minor to engage in sexual activity fell within scope of criminal attempt prohibited by 18 U.S.C. § 2422(b); further finding evidence to be sufficient to convict defendant of attempting to violate § 2422(b) where jury could find that defendant had intent to persuade minors to engage in sexual activity and defendant took substantial step to do so by arranging with person he believed was father of minors to visit children)

United States v. Schmidt, 845 F.3d 153 (4th Cir. Jan. 4, 2017) (Wilkinson, J.) (D. Md.) (on appeal by government of grant of § 2255 motion, reinstating conviction for § 2423(c), engaging in illicit sexual conduct in foreign places, based on molesting child in Cambodia where defendant initially traveled from United States to Philippines, where he remained for 18 months (though without any settled address) before traveling to Cambodia; travel in foreign commerce encompasses movement abroad that maintains some nexus with United States and ends only with permanent resettlement in foreign country)

21 U.S.C. § 841 et esq., Controlled Substance Offenses

United States v. McFadden, 823 F.3d 217 (4th Cir. May 19, 2016) (Keenan, J.) (W.D. Va.) (on remand from Supreme Court, concluding that jury instruction error concerning defendant’s knowledge of nature of controlled substance analogue (either as to substance’s legal status or its chemical structure and physiological effects) was harmless as to some counts, but not harmless as to others)

30 U.S.C. § 820, Penalties for Violations of Mandatory Mining Health or Safety Standards

United States v. Blankenship, 846 F.3d 663 (4th Cir. Jan. 19, 2017) (Wynn, J.) (S.D. W. Va.) (in criminal prosecution stemming from Massey coal mine accident, indictment was sufficient to allege violation of 30 U.S.C. § 820(d), which provides penalties for willful violations of mandatory health or safety standards, where indictment, although it did not provide citations for which standards or regulations were violated in specific count, tracked statutory language in count and provided extensive factual background describing regulations and how defendant violated them)

II. COMMERCE CLAUSE ISSUES

United States v. Hosford, 843 F.3d 161 (4th Cir. Dec. 6, 2016) (Gregory, J.) (D. Md.) (prohibition against unlicensed firearms dealing contained in 18 U.S.C. § 922(a)(1)(A), is valid exercise by Congress of its power under Commerce Clause)

FDFCDC 10 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 4

III. SECOND AMENDMENT ISSUES

United States v. Hosford, 843 F.3d 161 (4th Cir. Dec. 6, 2016) (Gregory, J.) (D. Md.) (prohibition against unlicensed firearms dealing contained in 18 U.S.C. § 922(a)(1)(A), does not violate Second Amendment, either facially or as applied)

IV. FOURTH AMENDMENT ISSUES

Automobile Exception

United States v. Gardner, 823 F.3d 793 (4th Cir. May 18, 2016) (Keenan, J.) (E.D.N.C.) (police officer had probable cause to search defendant’s car for firearm based on tip from confidential informant with whom officer had working relationship and who had consistently provided accurate information, which officer largely corroborated before making stop, and where defendant made furtive movements when being pulled over and acknowledged having firearm)

Reasonable Suspicion

United States v. Palmer, 820 F.3d 640 (4th Cir. Apr. 21, 2016) (King, J.; Wynn, J., concurring) (E.D. Va.) (officer did not unreasonably extend traffic stop in order to get drug dog where officer had reasonable suspicion to believe defendant was involved in drug dealing based on: overwhelming smell of air freshener in car; defendant’s status as suspected gang member; his four previous arrests on drug charges and conviction for firearm possession; his possession of two cell phones on his hip; his nervousness; his listing of post office box on driver’s license; registration of car to someone else; heavy tinting of car’s windows; and location of stop in high-crime area where citizens had complained about drug dealing)

United States v. Gardner, 823 F.3d 793 (4th Cir. May 18, 2016) (Keenan, J.) (E.D.N.C.) (police officer had reasonable suspicion to conduct traffic stop of defendant for unlawful possession of firearm based on tip from confidential informant with whom officer had working relationship and who had consistently provided accurate information, where officer corroborated information in tip before making stop)

United States v. Foster, 824 F.3d 84 (4th Cir. May 24, 2016) (Diaz, J.; Wilkinson, J., concurring) (N.D. W. Va.) (affirming denial of motion to suppress firearm seized after stop-and-frisk based on anonymous 911 call regarding gunfire in high-crime area late at night where defendant did “security check” on himself before answering officer’s question about whether he had a weapon)

United States v. White, 836 F.3d 437 (4th Cir. Sept. 9, 2016) (Wynn, J.) (S.D. W. Va.) (affirming denial of motion to suppress firearm brought on ground that officer unconstitutionally prolonged traffic stop where, after pulling over car for traffic stop, officer smelled burnt marijuana when he first approached car)

FDFCDC 11 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 5

United States v. Robinson, 846 F.3d 694 (4th Cir. Jan. 23, 2017) (en banc) (Niemeyer, J.; Wynn, J., concurring in judgment; Harris, J., joined by Gregory, Motz, and Davis, JJ., dissenting) (N.D. W. Va.) (concluding that police officer who makes lawful traffic stop and has reasonable suspicion to believe that one of car’s occupants is armed may frisk that occupant, regardless of whether occupant has permit to carry concea`led weapon; fact that person legally carries weapon does not negate danger to police)

United States v. (Donald) Hill, ___ F.3d ____, 2017 WL ______(4th Cir. Mar. 30, 2017) (Keenan, J.; Davis, J., dissenting) (E.D. Va.) (concluding that 20-minute-long traffic stop, during which one officer interrupted his writing of traffic summonses to check local PISTOL database (after having learned already from NCIC that both vehicle occupants had been associated with drug trafficking and were likely armed) while other officer asked occupants three times in making small talk whether there were guns or drugs in vehicle and received affirmative answer as to a gun on last try, did not exceed time reasonable required to complete tasks incident to mission of stop for slight speeding and crossing yellow double line because evidence showed that officers acted with reasonable diligence and did not impermissibly expand scope or length of stop)

Inventory Searches

United States v. Clarke, 842 F.3d 288 (4th Cir. Nov. 18, 2016) (Wynn, J.) (E.D. Va.) (district court did not err in denying motion to suppress based on improper inventory search where court considered both Virginia Department of State Police inventory search policy and standard inventory search form signed by officer who conducted search)

Warrants

! United States v. Lull, 824 F.3d 109 (4th Cir. May 25, 2016) (Duncan, J.; Davis, J., concurring in part and dissenting in part) (E.D.N.C.) (finding Franks violation and reversing denial of suppression motion where police investigator at least recklessly omitted from search warrant application information about reliability of confidential informant who was primary source of information used to establish probable cause (specifically, that after completing controlled buy, informant stole $20 of buy money and was immediately terminated as informant and arrested for theft), and omitted information was material)

United States v. Graham, 824 F.3d 421 (4th Cir. May 31, 2016) (en banc) (Motz, J.; Wilkinson, J., concurring; Wynn, J., joined by Floyd and Thacker, JJ., dissenting)) (D. Md.) (joining three other circuits in holding that, under third-party doctrine, government’s acquisition of historical cell-site location information (CSLI) for defendant’s cell phone from cell phone provider does not violate Fourth Amendment; government not required to obtain warrant), petition for cert. filed and distributed for conference, No. 16-6308

United States v. Wharton, 840 F.3d 163 (Oct. 21, 2016) (Motz, J.) (D. Md.) (affirming denial of suppression motion challenging search warrant on ground that material exculpatory information was recklessly omitted because even if included, omitted information would not have defeated probable cause for search, therefore information was not material)

FDFCDC 12 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 6

United States v. White, ___ F.3d ____, 2017 WL 942653 (4th Cir. Mar. 9, 2017) (Duncan, J.) (D. Md.) (rejecting government’s argument that defendant waived Franks argument by not raising it before trial when basis for argument did not become apparent until witness testified at trial; rejecting Franks argument on merits where defendant failed to make substantial showing that officer knowingly, intentionally, or recklessly made false statement in warrant affidavit)

Exclusionary Rule

United States v. (Darren) Hill, 849 F.3d 195 (4th Cir. Feb. 23, 2017) (Duncan, J.) (W.D.N.C.) (under good-faith exception to exclusionary rule, Supreme Court and appellate decisions (here, Rodriguez v. United States, 135 S. Ct. 1609 (2015), and United States v. Williams, 808 F.3d 238 (4th Cir. 2015)) do not apply to searches and seizures occurring before decisions issued)

V. FIFTH AMENDMENT ISSUES (Pre-trial and Trial)

Due Process

United States v. Hare, 820 F.3d 93 (4th Cir. Apr. 19, 2016) (Floyd, J.) (D. Md.) (in stash- house robbery sting case, affirming denial of motion to dismiss indictment based on outrageous government conduct where, although law enforcement agents failed to investigate defendants’ criminal histories, defendants were recruited by co-conspirator, not targeted by law enforcement; and where ATF use of stash house stings as investigative tool is not so outrageous as to shock conscience)

United States v. Bello Murillo, 826 F.3d 152 (4th Cir. June 14, 2016) (King, J.) (E.D. Va.) (prosecution of defendant in United States for armed robbery and murder in Columbia of U.S. citizen with diplomatic status, i.e., an internationally protected person (IPP), does not violate due process where prosecution was neither arbitrary nor unfair)

United States v. Rand, 835 F.3d 451 (4th Cir. Aug. 26, 2016) (Gregory, J.) (W.D.N.C.) (rejecting argument that exclusion of testimony that certain accusations were false prevented defendant from fully defending himself by explaining circumstances of his confession and limiting ability to cross-examine witnesses; but even if exclusion of testimony was error, error was harmless)

United States v. Garcia-Lagunas, 835 F.3d 479 (4th Cir. Sept. 1, 2016) (on panel rehearing) (Diaz, J.; Davis, J., dissenting) (E.D.N.C.) (assuming that government’s improper use of ethnic stereotype to rebut defendant’s trial defense theory that he was too poor to be a major drug dealer was constitutional error, but finding that such error was harmless beyond a reasonable doubt)

United States v. Hosford, 843 F.3d 161 (4th Cir. Dec. 6, 2016) (Gregory, J.) (D. Md.) (prohibition against unlicensed firearms dealing contained in 18 U.S.C. § 922(a)(1)(A), is not void for vagueness, either facially or as applied)

FDFCDC 13 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 7

Grand Jury / Indictment

United States v. Alvarado, 840 F.3d 184 (4th Cir. Oct. 26, 2016) (Duncan, J.) (W.D. Va.) (on interlocutory appeal by government of district court order precluding government from using certain grand jury evidence at trial, reversing order where district court expressly found that government’s did not commit misconduct in grand jury proceeding and did not otherwise explain that government engaged in bad-faith questioning of grand jury witnesses or otherwise abused grand jury process; rejecting government’s argument that district court has no power to impose remedy absent finding of misconduct)

Selective Enforcement / Prosecution

* United States v. Hare, 820 F.3d 93 (4th Cir. Apr. 19, 2016) (Floyd, J.) (D. Md.) (in stash- house robbery sting case, affirming denial of motion for discovery into race discrimination in investigation where defendants’ statistical data did not demonstrate that similarly-situated white offenders who could have been prosecuted were not, and where district court ordered disclosure of ATF criteria for stash-house sting operations)

VI. SIXTH AMENDMENT ISSUES (Pre-trial and Trial)

Confrontation

United States v. Blankenship, 846 F.3d 663 (4th Cir. Jan. 19, 2017) (Wynn, J.) (S.D. W. Va.) (even if defendant’s right to confrontation was violated by not being allowed to engage in recross- examination of government witness, any error was harmless beyond a reasonable doubt)

Counsel

United States v. Chittenden, 848 F.3d 188 (4th Cir. Jan. 31, 2017) (Gregory, J.) (E.D. Va.) (on plain error review, finding that pre-trial restraint of defendant’s tainted and untainted assets, other than funds already paid to attorneys representing her in pre-indictment investigation, did not violate defendant’s Sixth Amendment right to choice of counsel, see Luis v. United States, 136 S. Ct. 1083 (2016), where defendant continued with same counsel through trial and on appeal and nothing in record indicated that she wanted to retain different attorneys)

FDFCDC 14 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 8

VII. OTHER PRE-TRIAL ISSUES

Discovery (Fed. R. Crim. P. 16)

United States v. Garcia-Lagunas, 835 F.3d 479 (4th Cir. Sept. 1, 2016) (on panel rehearing) (Diaz, J.) (E.D.N.C.) (on plain error review, finding that government’s failure to comply with Fed. R. Crim. P. 16(b)(1)(G)’s notice requirement to provide written summary of expert testimony by police officer on drug trafficking, even if plain error, did not affect defendant’s substantial rights)

Subpoenas (Fed. R. Crim. P. 17)

United States v. Rand, 835 F.3d 451 (4th Cir. Aug. 26, 2016) (Gregory, J.) (W.D.N.C.) (in question of first impression, rejecting argument that test for issuance of subpoenas laid out in United States v. Nixon, 418 U.S. 683, 699-700 (1974), applies only to subpoenas issued to prosecution and ruling that test applies to subpoenas issued to third parties)

VIII. TRIAL ISSUES1

Jury Selection

United States. v. Powell, 850 F.3d 145 (4th Cir. Mar. 1, 2017) (Niemeyer, J.) (E.D.N.C.) (juror’s alleged comments to defendant’s father that “everything would be alright” and that father needed to give his son “a good kick in the butt,” made when entering courthouse after jury selection but before trial began, were not sufficiently clear to indicate actual bias; thus, defense counsel was not ineffective for failing to try to have juror removed)

Evidence

Confrontation

See Sixth Amendment, supra

Federal Rules of Evidence 401 et seq.

United States v. Faulls, 821 F.3d 502 (4th Cir. May 5, 2016) (Diaz, J.; Shedd, J., concurring) (W.D. Va.) (in kidnapping and interstate domestic violence case, evidence of defendant’s previous incidents of domestic violence against victim was properly admitted to establish defendant’s motive and victim’s state of mind)

! United States v. Garcia-Lagunas, 835 F.3d 479 (4th Cir. Sept. 1, 2016) (on panel rehearing) (Diaz, J.) (E.D.N.C.) (on plain error review, finding that admission in drug prosecution of

1 Subsections are arranged by stage of trial.

FDFCDC 15 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 9 defendant’s illegal immigrant status violates Rule 404(b), but even assuming error was plain, it did not affect defendant’s substantial rights)

Federal Rules of Evidence 701 et seq.

United States v. Clarke, 842 F.3d 288 (4th Cir. Nov. 18, 2016) (Wynn, J.) (E.D. Va.) (district court did not erroneously instruct jury on meaning of “induce” as used in 18 U.S.C. § 2422(b))

Sufficiency of Evidence

See Offenses, supra

Jury Instructions

United States v. Clarke, 842 F.3d 288 (4th Cir. Nov. 18, 2016) (Wynn, J.) (E.D. Va.) (district court violated Fed. R. Crim. P. 30(b) when it failed to apprise parties before closing arguments of how it would instruct jury, but error was harmless where defense counsel was able to make all necessary arguments and government introduced sufficient evidence to convict defendant)

United States v. Blankenship, 846 F.3d 663 (4th Cir. Jan. 19, 2017) (Wynn, J.) (S.D. W. Va.) (jury instruction on “willfully” properly defined that term to include acting or failing to act with “reckless disregard” in prosecution for violation of 30 U.S.C. § 820(d) (violations of mandatory mining health or safety standards))

* United States v. Blankenship, 846 F.3d 663 (4th Cir. Jan. 19, 2017) (Wynn, J.) (S.D. W. Va.) (in issue of apparent first impression in circuit, although finding that “two-inference” instruction (i.e., if jury views case as reasonably permitting two conclusions, one of innocence and the other of guilt, it must acquit) did not impermissibly reduce government’s burden of proof in case at hand, directing district courts to stop giving instruction)

United States v. Vinson, ___ F.3d ____, 2017 WL 1103007 (4th Cir. Mar. 24, 2017) (King, J.) (W.D.N.C.) (in large-scale real estate fraud case, district court did not abuse discretion in instructing jury on willful blindness where each count required jury to find that defendant acted knowingly and government presented evidence of deliberate ignorance)

Closing Arguments

! United States v. Rand, 835 F.3d 451 (4th Cir. Aug. 26, 2016) (Gregory, J.) (W.D.N.C.) (finding error in government’s references to defendant’s wealth during rebuttal, but error harmless)

FDFCDC 16 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 10

IX. PLEA ISSUES

Plea Agreement Provisions

! United States v. Warner, 820 F.3d 678 (4th Cir. Apr. 27, 2016) (Niemeyer, J.) (W.D.N.C.) (where government agreed in plea agreement that certain enhancement did not apply but at sentencing said that it did apply (even though it then asked court to honor plea agreement and not apply enhancement), concluding that “the government, although acting in good faith, breached its undertaking in the plea agreement by stating that the enhancement did apply”)

United States v. Tate, 845 F.3d 571 (4th Cir. Jan. 11, 2017) (Floyd, J.) (W.D.N.C.) (on plain error review, where government agreed in plea agreement to recommend sentence at bottom of “applicable guideline range,” government did not breach agreement by recommending sentence at bottom of range found by district court, not range that defendant argued to court was correct range)

Entry of Guilty Plea (Fed. R. Crim P. 11)

United States v. Fitzgerald, 820 F.3d 107 (4th Cir. Apr. 27, 2016) (Traxler, J.) (D. Md.) (discussing what is required to enter conditional plea that preserves right to appeal denial of pretrial motion where plea is straight up, without a written plea agreement)

United States v. Agyekum, 846 F.3d 744 (4th Cir. Jan. 24, 2017) (Niemeyer, J.) (S.D. W. Va.) (on plain error review, finding that district court adequately advised defendant that he was giving up rights in plea agreement to challenge forfeiture proceedings and that defendant knowingly and intelligently waived any forfeiture challenge)

X. SENTENCING ISSUES

Constitutional Considerations

Fifth Amendment

United States v. Lara, ___ F.3d ____, 2017 WL 991700 (4th Cir. Mar. 14, 2017) (Keenan, J.) (W.D. Va.) (use at sentencing in SORNA case of statements made by defendant during participation in sex offender treatment program ordered as condition of supervision in a different case does not violate Fifth Amendment privilege against self-incrimination where defendant made statements voluntarily and was never threatened with revocation of supervision in other case if he did not answer questions)

FDFCDC 17 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 11

Sentencing Statutes

18 U.S.C. § 924(e), Armed Career Criminal Act (ACCA)

* United States v. Linney, 819 F.3d 747 (4th Cir. Apr. 26, 2016) (Wilkinson, J.) (W.D.N.C.) (affirming district court’s ruling that two burglaries committed on same night were committed on “occasions different from one another” where burglaries were committed at two distinct street addresses (albeit only 30 feet apart) and involved different victims)

! United States v. Gardner, 823 F.3d 793 (4th Cir. May 18, 2016) (Keenan, J.) (E.D.N.C.) (North Carolina common law robbery, i.e., “the ‘felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear,’” does not fall within “force clause” of ACCA’s “violent felony” definition where state law permits only de minimus force to suffice for conviction)

! United States v. White, 836 F.3d 437 (4th Cir. Sept. 9, 2016) (Wynn, J.) (S.D. W. Va.) (vacating ACCA sentence where, although West Virginia burglary, in violation of W. Va. Code § 61-3-11(a), qualified as violent felony under residual clause at time of defendant’s sentencing, it no longer qualifies after Johnson (which came out during pendency of appeal), and does not qualify as generic burglary because it sweeps more broadly)

United States v. Doctor, 842 F.3d 306 (4th Cir. Nov. 21, 2016) (Gregory, J.; Wilkinson, J., concurring) (D.S.C.) (South Carolina robbery (“by violence or putting [victim] in fear” of bodily harm from perpetrator’s acts) qualifies under ACCA’s “force clause” as “violent felony”)

United States v. McDonald, ___ F.3d ____, 2017 WL 937469 (4th Cir. Mar. 9, 2017) (Shedd, J.) (W.D.N.C.) (where defendant sentenced as armed career criminal based in part on two convictions for South Carolina second-degree burglary, assuming error but finding it harmless where district court indicated it would impose same 188-month sentence as upward variance (by varying from non-ACCA range of 140-175 months up by one criminal history category to 151-188 months and then running 68-month sentence for one of four § 922(g) convictions consecutively to 120- month sentences on other § 922(g) counts), and 188-month sentence imposed as variance was substantively reasonable)

! United States v. Winston, ___ F.3d ____, 2017 WL 977031 (4th Cir. Mar. 13, 2017) (Keenan, J.) (W.D. Va.) (Virginia common law robbery does not fall within “force clause” of ACCA’s “violent felony” definition because offense can be committed by use of only de minimis force, not “force capable of causing physical pain or injury to another person;” concluding that United States v. Presley, 52 F.3d 64 (4th Cir. 1995), is no longer binding because it has been undermined by later Supreme Court precedent)

18 U.S.C. § 2251(e), Penalties for Sexual Exploitation of Children

* United States v. Mills, ___ F.3d ____, 2017 WL 1014393 (4th Cir. Mar. 15, 2017) (Thacker, J.) (E.D.N.C.) (on plain error review, applying categorical approach in ruling that North

FDFCDC 18 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 12

Carolina conviction for indecent liberties with children constitutes conviction “relating to the sexual exploitation of children” that triggers 35-year mandatory minimum penalty for violation of § 2251)

Sentencing Guidelines

U.S.S.G. § 1B1.3, Relevant Conduct

United States v. Agyekum, 846 F.3d 744 (4th Cir. Jan. 24, 2017) (Niemeyer, J.) (S.D. W. Va.) (where defendant pled guilty to two structuring cash transactions pursuant to 31 U.S.C. § 5324, such that U.S.S.G. § 2S1.3 applied, district court did not err in considering drug distribution conspiracy as relevant conduct, and applying enhancements for leadership role and abuse of position of trust based on drug conspiracy, when structuring charges resulted from defendant’s efforts to conceal source and nature of proceeds from drug distribution)

U.S.S.G. § 2B1.1, Fraud

United States v. Rand, 835 F.3d 451 (4th Cir. Aug. 26, 2016) (Gregory, J.) (W.D.N.C.) (in securities fraud case involving loss based on changes in securities prices after fraud was disclosed to market, joining Third, Sixth, and Ninth Circuits in agreeing that loss-causation principles set out in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), do not apply in criminal case)

United States v. White, ___ F.3d ____, 2017 WL 942653 (4th Cir. Mar. 9, 2017) (Duncan, J.) (D. Md.) (affirming application of enhancement under § 2B1.1(b)(9)(A) for misrepresentation that defendant was acting on behalf of government agency where defendant created fraudulent IRS notices and was involved in leaving of voice mail in which unidentified caller claimed to be official tax collector)

United States v. White, ___ F.3d ____, 2017 WL 942653 (4th Cir. Mar. 9, 2017) (Duncan, J.) (D. Md.) (affirming application of enhancement under § 2B1.1(b)(10)(C) for use of sophisticated means where scheme to defraud incapacitated person involved several layers of fraudulent conduct and lasted nearly three years)

U.S.S.G. § 2B3.1 et seq., Robbery

! United States v. Williams, 841 F.3d 656 (4th Cir. Nov. 10, 2016) (Floyd, J.) (E.D.N.C.) (where defendant was charged with, and pled guilty to, attempted bank burglary and bank larceny under 18 U.S.C. § 2113(a), not bank robbery, guideline for burglary, U.S.S.G. § 2B2.1, should have been applied)

U.S.S.G. § 2D1.1 et seq., Drug Offenses

! United States v. Garcia-Lagunas, 835 F.3d 479 (4th Cir. Sept. 1, 2016) (on panel rehearing) (Diaz, J.) (E.D.N.C.) (on plain error review, finding plain error that affected defendant’s substantial rights where district court agreed to final offense level based on granting two defense objections and

FDFCDC 19 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 13

a downward departure and stated it would sentence defendant at low end of range, but then court applied wrong range when it forgot to reduce offense level in light of one objection it had granted)

U.S.S.G. § 2L1.2, Illegal Reentry After Removal

N.B.: as of Nov. 1, 2016, § 2L1.2 no longer considers convictions for aggravated felonies, and limits consideration of crimes of violence to misdemeanor convictions, in calculating offense level.

! United States v. Barcenas-Yanez, 826 F.3d 752 (4th Cir. June 21, 2016) (Davis, J.) (W.D.N.C.) (conviction for aggravated assault under Tex. Penal Code § 22.02(a) is not categorically “crime of violence” that can be used to increase offense level by 16 levels under § 2L1.2 where indivisible offense sweeps more broadly than generic offense by including reckless as well as intentional or knowing causation of bodily injury)

Alvarez v. Lynch, 828 F.3d 288 (4th Cir. July 7, 2016) (Thacker, J.) (BIA) (Virginia conviction for forging a public record, in violation of Va. Code § 18.2-168, qualifies as aggravated felony) (N.B.: Nov. 2016 guideline no longer considers convictions for aggravated felonies)

United States v. Alfaro, 835 F.3d 470 (4th Cir. Aug. 29, 2016) (Traxler, J.) (D. Md.) (Maryland third-degree sex offense, Md. Code, Crim. Law § 3-307, qualifies as crime of violence; “sex offense” is offense involving sexual conduct, and is forcible if it is not consensual; sex offense does not require element of sexual gratification) (N.B.: although this decision will have limited application to the Nov. 1, 2016 revised version of § 2L1.2, that section’s definition of crime of violence tracks the Aug. 1, 2016 definition of crime of violence in § 4B1.2, such that decision will apply to career offender guideline and other guidelines incorporating § 4B1.2 definition)

! Larios-Reyes v. Lynch, 843 F.3d 146 (4th Cir. Dec. 6, 2016) (Gregory, J.) (BIA) (Maryland conviction for third-degree sex offense, does not qualify as aggravated felony because offense proscribes more conduct than does federal offense of sexual abuse of a minor; distinguishing Alfaro, supra)

United States v. Morena-Tapia, 848 F.3d 162 (4th Cir. Jan. 26, 2017) (Harris, J.) (M.D.N.C.) (although prior convictions giving rise to defendant’s removal from United States were vacated in 2015 in state court on basis of Padilla v. Kentucky, 559 U.S. 356 (2010), because convictions were valid at time of defendant’s removal in 2009, they could be used to enhance sentence under § 2L1.2)

FDFCDC 20 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 14

U.S.S.G. § 2S1.1 et seq., Money Laundering

U.S.S.G. § 3B1.1 et seq., Role Adjustments

United States v. Agyekum, 846 F.3d 744 (4th Cir. Jan. 24, 2017) (Niemeyer, J.; Wynn, dissenting in part) (S.D. W. Va.) (in case involving pharmacy that illegally distributed oxycodone, finding that enhancements for leadership role, U.S.S.G. § 3B1.1, and abuse of position of trust, U.S.S.G. § 3B1.3, were properly applied to defendant, a licensed pharmacist intern, where he was chief executive officer of pharmacy, handling all financial matters and state reporting requirements and directing pharmacist to fill out-of-state prescriptions and suspicious prescriptions)

U.S.S.G. § 4B1.1 et seq., Career Offenders and Other Recidivists

N.B.: as of August 1, 2016, the U.S. Sentencing Commission significantly revised the definition of “crime of violence” contained in § 4B1.2.

United States v. Dozier, 848 F.3d 180 (4th Cir. Jan. 30, 2017) (Davis, J.) (S.D. W. Va.) (concluding that when dealing with state attempt statutes, sentencing courts must compare elements of state and generic attempt offenses as well as elements of underlying substantive offense when determining whether prior attempt conviction qualifies as controlled substance offense for career offender guideline)

Reasonableness of Sentence

United States v. Spencer, 848 F.3d 324 (4th Cir. Feb. 9, 2017) (Wilkinson, J.) (E.D. Va.) (on appeal after resentencing, at which district court imposed above-range sentence of 45 months after imposing high-end sentence of 46 months at original sentencing, finding any procedural error in imposition of variance sentence to be harmless and finding sentence to be substantively reasonable)

United States v. White, ___ F.3d ____, 2017 WL 942653 (4th Cir. Mar. 9, 2017) (Duncan, J.) (D. Md.) (in tax fraud case involving fraud on incapacitated person that was complex and lasted nearly three years, affirming as substantively reasonable sentence of 108 months, at top of range)

United States v. Lara, ___ F.3d ____, 2017 WL 991700 (4th Cir. Mar. 14, 2017) (Keenan, J.) (W.D. Va.) (court could use at sentencing in SORNA case statements made by defendant during participation in sex offender treatment program ordered as condition of supervision in different case where defendant had affirmatively waived any psychotherapist-patient privilege when he agreed as

FDFCDC 21 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 15 part of conditions of supervision in prior case to disclosure of statements he made in treatment program)

United States v. Vinson, ___ F.3d ____, 2017 WL 1103007 (4th Cir. Mar. 24, 2017) (King, J.) (W.D.N.C.) (in large-scale real estate fraud case, below-range sentence of 216 months was not substantively unreasonable although it was much higher than sentences imposed upon coconspirators where co-conspirators pled guilty and cooperated, whereas defendant went to trial, continued to deny guilt in sentencing allocution, and never expressed remorse for his criminal activities)

Restitution and Forfeiture

United States v. Chittenden, 848 F.3d 188, 203-04 (4th Cir. 2017) (when defendant is convicted of conspiracy, it is appropriate to hold defendant jointly and severally liable for forfeiture of amount of proceeds that were reasonably foreseeable to defendant, including substitute assets when co-conspirators dissipated, commingled, or transferred proceeds)

United States v. Chittenden, 848 F.3d 188, 203-04 (4th Cir. 2017) (district court’s failure to include forfeiture in judgment does not deprive it of jurisdiction to later enter preliminary and final forfeiture orders; Fed. R. Crim. P. 32.2 is not jurisdictional condition but rather time-related directive so long as court had made clear prior to sentencing that it planned to order forfeiture)

Supervised Release

United States v. Faulls, 821 F.3d 502 (4th Cir. May 5, 2016) (Diaz, J.; Shedd, J., concurring) (W.D. Va.) (because interstate domestic violence case is offense that requires registration under SORNA, district court did not err in requiring sex offender registration as condition of supervised release)

United States v. Douglas, ___ F.3d ____, 2017 WL 937496 (4th Cir. Mar. 9, 2017) (Traxler, J.) (W.D. Va.) (where defendant was sentenced for violating SORNA by failing to register as sex offender, court did not abuse discretion when including submission to sex offender evaluation as condition of supervised release even though defendant’s conviction for sex offense was over 20 years old, where defendant spent nearly 15 years successfully evading detection and arrest for failing to register)

FDFCDC 22 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2016, through March 30, 2017 Page 16

XI. APPELLATE ISSUES

Reviewability of Issues

* United States v. White, 836 F.3d 437 (4th Cir. Sept. 9, 2016) (Wynn, J.) (S.D. W. Va.) (discussing circumstances under which appellant may raise new issue, not raised in opening brief, without triggering abandonment rule, i.e., when intervening Supreme Court case makes available argument that had been previously foreclosed (here, raising challenge to ACCA sentence based on Johnson, which was decided after appellant had filed opening brief))

United States v. Tate, 845 F.3d 571 (4th Cir. Jan. 11, 2017) (Floyd, J.) (W.D.N.C.) (appeal waiver did not bar appellant’s argument that government breached its obligation in plea agreement to recommend sentence at bottom of “applicable guideline range”)

United States v. (Darren) Hill, 849 F.3d 195 (4th Cir. Feb. 23, 2017) (Duncan, J.) (W.D.N.C.) (where defendant does not object in district court to one of magistrate judge’s findings or recommendations with sufficient specificity to alert district court of basis for objection, then defendant waives that objection on appeal; in this case, defendant challenging traffic stop did so only on basis of delay in issuing ticket, not on basis of delay after issuance of ticket, so waived latter argument on appeal to Fourth Circuit)

XII. POST-CONVICTION ISSUES

18 U.S.C. § 3582, Modification of Sentence of Imprisonment After Imposition

United States v. Peters, 843 F.3d 572 (4th Cir. Dec. 12, 2016) (Wilkinson, J.; Gregory, J., dissenting) (E.D. Va.) (district court did not err in denying defendant’s § 3582(c) motion for reduction in drug sentence when court failed to explain non-eligibility determination (i.e., that defendant was responsible for at least 25.2 kilograms of crack cocaine) in sufficient detail, and that court’s implicit finding as to at least 25.2 kilograms was not clearly erroneous)

United States v. Muldrow, 844 F.3d 434 (4th Cir. Dec. 27, 2016) (Duncan, J.) (D. Md.) (for purpose of deciding whether and by how much to reduce sentence under § 3582(c), court must determine applicable guideline range without any discretionary departure (such as criminal history pursuant to U.S.S.G. § 4A1.3) in light of U.S.S.G. amendment 759, which abrogated United States v. Munn, 595 F.3d 183 (4th Cir. 2010))

FDFCDC 23 THIS PAGE INTENTIONALLY LEFT BLANK

FDFCDC 24 THE EFFECTS OF IMPLICIT BIAS ON THE PROSECUTION, DEFENSE, AND COURTS IN CRIMINAL CASES

Wayne S. McKenzie

NOTES

FDFCDC 25 THE EFFECTS OF IMPLICIT BIAS ON THE PROSECUTION, DEFENSE, AND COURTS IN CRIMINAL CASES1

Tenth Frank Dunham Federal Criminal Defense Conference April 6, 2017, Charlottesville, Virginia

Wayne S. McKenzie, General Counsel New York City Department of Probation

I. What is implicit bias? A preference (positive or negative) for a group based on a stereotype or an attitude that we hold and that tends to develop early in life.

! Implicit bias operates outside of human awareness and can be understood as a lens through which a person views the world and that automatically filters how a person takes in and acts in regard to information.

! How does implicit bias manifest itself? Through quick judgments (mental shortcuts) we make about another person or group on an unconscious level, based on implicit social cognitions, that can result in discriminatory behavior, inequity, and unfairness, whether intended or not.

* Implicit social cognitions = schemas that apply to human interaction and that guide the way a person thinks about social categories. They can start in infancy, and come from many sources (parents, friends, media). They can result in positive or negative associations, and they can strengthen over time to become automatic. Social cognitions include stereotypes (traits we associate with a category) and attitudes (evaluative feelings that are positive or negative).

1 This outline is based on Units 2 and 3 of the model curriculum provided in the American Bar Association’s project, Building Community Trust: Improving Cross-Cultural Communication in the Criminal Justice System 12-35 (2010).

FDFCDC 26 ! What are ways that implicit bias affects us, or predicts our behavior? Examples include:

* Negative evaluations of confident, aggressive, ambitious women in certain hiring conditions

* Negative evaluations of ambiguous actions by African Americans

* How we read awkward body language or perceptions of fairness/courtesy

* How we read “friendliness” of facial expressions

* Memory recall

! How do we know if we are implicitly biased?

* Take the Implicit Associations Test (IAT), which measures reactions and reaction times, detects hidden preferences and conscious / unconscious divergences, and measures associations of concepts. To learn more, go to https://implicit.harvard.edu/implicit//demo.

II. What is the source of implicit bias? Growing up in the “American cultural soup.”

! Culture can be defined as a community’s shared set of norms, practices, beliefs, values, traditions, customs, history, and means of expression that affects (among other things) how we, as the community, analyze, judge, and interpret information, behavior, and perceptions about behavior.

! The concept of culture is broader than race and gender, and includes such things as language, nationality, religion, ethnicity, physical and mental ability, sex, sexual orientation, and profession.

FDFCDC 27 ! Culture is a deep concept, touching on both visible dimensions such as skin tone and religious symbols, and invisible dimensions such as our values and beliefs. Culture can be deeply embedded in us, going to the core of our identity.

! Even within a culture, there are cultural groups, groups of people who consciously or unconsciously share identifiable values, norms, symbols, and some ways of living that are repeated and transmitted from one generation to another. Cultural groups can include historically disadvantaged or excluded groups such as native communities; descendants of enslaved persons; women; immigrants; lesbian, gay, bisexual, transgendered, or questioning individuals; refugees and asylum seekers; individuals with mental, developmental or physically disabilities; members of faith-based communities, and people of similar economic status.

! Culture shapes attitudes about child rearing, sexual roles, care-taking, treatment, dress, spirituality, education, discipline, punctuality, pre-marital sex, drugs/alcohol, homosexuality, employment, politics, the importance of family, authority figures, medications, criminal justice system, protective services, death and dying, living arrangements, marriage, domestic violence, and hospitality.

! Culture also shapes our behavior, communication style, and interactions with others

! Being aware of cultural differences can help us to communicate and interact with one another more effectively. In the criminal justice context, awareness of cultural differences can improve our ability to communicate with colleagues and the communities that we serve.

III. Who is affected by culture and implicit bias?

! Culture affects everyone in the criminal justice system, because the criminal justice system is a cultural group, which has both visible and invisible dimensions.

FDFCDC 28 * Culture affects how we analyze, judge, and interpret information, behavior, and perceptions about behavior. For lawyers and judges, this means a heavy reliance on and a high value for things like logic, analytical thought, and facts.

* Visible dimensions include the structure (judge, prosecutor, defense attorney or defendant), the language we use, our communication styles (especially during cross-examination), the complex procedural rules and precedents that are followed, the adversarial nature of the proceedings, the case process itself, and the clothing we wear. These are things that can be seen and observed.

* Less visible dimensions include our values and motives for doing this work. Because they are less visible, it can be easy to forget that we share some of the same values and motivations even though we are adversaries in court. It can also be easy for others to misunderstand our motives and values or to attribute ill-will to our efforts.

! Cultural collisions can occur in the courtroom, between prosecutors, defenders, judges, law enforcement, and court personnel, and also outside the courtroom, when working with clients, victims, and witnesses, in our offices, and among colleagues.

* Cultural collision = when individuals or groups with different traditions, world views, values, or languages encounter a situation in which neither side is able to understand or respect the situation from the other’s perspective.

! Implicit bias also operates at each and every decision point as a person enters, moves through, and exits the criminal justice system.

* For example, implicit bias can impact actions resulting from an observation of an act that is ultimately interpreted as shoplifting: a decision of whether to call parents or police, a decision to charge or arrest, a decision about detention or

FDFCDC 29 diversion, and other decisions all the way through adjudication and sentencing.

* Implicit bias also influences responses to decision-makers (e.g., judges, prosecutors, police officers, and defenders). In this sense, a reciprocal process between actors sets the stage for a self-fulfilling prophecy that affirms one’s implicit beliefs.

IV. How do we prevent, or at least reduce, implicit bias and cultural collisions? Through cultural competence and awareness of implicit bias.

! Cultural competence = awareness, knowledge, and understanding sufficient to value cultural diversity and promote fairness, justice, and community confidence.

! Skills to help us to interact in a culturally competent way with others include:

* Personal awareness of one’s own culture and values;

* Respect for others’ culture and values;

* Knowledge of a specific culture (e.g., the meaning of eye contact in that culture, or the role of family members in decision-making processes);

* Awareness of ways in which personal bias (implicit or explicit) may affect interactions with others;

* Knowledge of institutional barriers that prevent some cultural groups from accessing justice;

* Flexibility and ability to adapt to differences; and

* Ability to communicate and mediate effectively across cultural differences.

FDFCDC 30 ! Methods to increase awareness of implicit bias include:

* Education: Recognize that race, gender, sexual orientation, and other social categories may influence decision-making. Engage in educational programs to increase your awareness rather than attempt to be color-blind.

* Mindfulness: Focus on the task at hand to understand your thought processes, develop awareness, and challenge one’s errors (e.g., is this a fact or am I making an assumption?). Put another way, improve conditions of decision-making by “thinking slow” and doubt your objectivity.

* Cognitive Load: Decrease the amount and complexity of information you have to process in any given time frame.

* High-effort processing: Engage in thought that confronts information rather than retaining information for peripheral and secondary cognition.

* Checklists: Develop checklists to use at key decision points. These will help encourage less-biased decisions by providing an objective framework to assess your thinking and subsequent decisions.

* Organizational review: Review the structure of a given organization to determine how effectively it fosters bias-free behavior. Evaluate the organization to see how implicit bias may impact interactions with colleagues and community members; hiring, retention, and promotion decisions; management and supervision; and resource allocation (e.g., “triaging” heavy caseloads).

FDFCDC 31 V. Resources

Note: you may need to copy and paste the web addresses in your browser

! ABA Implicit Bias Videos and Toolkit, available at

http://www.americanbar.org/diversity-portal/diversity-inclusion-3 60-commission/implicit-bias.html

! ABA Project, Building Community Trust: Improving Cross-Cultural Communication in the Criminal Justice System (2010), available at

http://www.americanbar.org/content/dam/aba/migrated/sections /criminaljustice/PublicDocuments/bctext.authcheckdam.pdf

! Jerry Kang, Implicit Bias: A Primer for Courts, August 2009, available at

http://www.americanbar.org/content/dam/aba/migrated/sections /criminaljustice/PublicDocuments/unit_3_kang.authcheckdam.pdf

! Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345 (2007), available at

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=133 6&context=dlj

! Shawn C. Marsh, The Lens of Implicit Bias, Juvenile and Family Justice Today, Summer 2009, available at

http://www.ncjfcj.org/sites/default/files/ImplicitBias.pdf

FDFCDC 32 ETHICAL CONSIDERATIONS WHEN CLIENTS WANT TO (OR DID) TESTIFY

Thomas E. Spahn

DISCUSSION OVERVIEW

Note: Only the hypotheticals are reproduced in this book. The hypos with Mr. Spahn’s thorough analyses are available at the following link: http://vae.fd.org/content/training.

Hypo 1: Clients’ intent to provide false testimony

Hypo 2: Lawyers’ decision to remain willfully ignorant of their clients’ guilt or innocence

Hypo 3: Lawyers’ level of knowledge required to report clients’ false testimony

Hypo 4: Lawyers learning of clients’ fraud on tribunals that occurred before the representation

Hypo 5: Lawyers learning before proceedings have ended of clients’ fraud on tribunals during the representation

Hypo 6: Lawyers learning after proceedings have ended of clients’ fraud on tribunals during the representation

Hypo 7: Lawyers learning after proceedings have settled of clients’ fraud on tribunals during the representation

Hypo 8: Lawyers learning after the representation has ended of clients’ fraud on tribunals after the representation (on successor counsel’s watch)

FDFCDC 33 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP Ethical Considerations When Clients Want to Testify T. Spahn (4/7/17) Hypotheticals

FRANK DUNHAM FEDERAL CRIMINAL DEFENSE CONFERENCE Charlottesville, VA April 7, 2017

Ethical Considerations When Clients Want to (or Did) Testify

Hypotheticals

Thomas E. Spahn McGuireWoods LLP

Hypothetical 1

As a criminal defense lawyer, you occasionally have to wrestle with tough issues that your civil litigation colleagues rarely face. This morning, your client told you that he wants to testify at his murder trial starting later this week. You tried to talk him out of it, because there is damaging evidence about his whereabouts at a key time. Your client quickly dismissed your worry, telling you that he had "no choice" but to lie about where he was at that time. You tried to talk him out of that too, but without success.

What do you do?

(A) Use the "narrative" approach, under which you put your client on the stand and ask him to offer testimony -- without asking specific questions and without referring to his testimony in your closing argument?

(B) Put your client on the stand to testify, but advise the court if he carries through on his threat to lie?

(C) Directly examine your client as if he were telling the truth, and rely on his testimony in your closing -- even though you know he has lied?

87704251_1 FDFCDC1 35 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP Ethical Considerations When Clients Want to Testify T. Spahn (4/7/17) Hypotheticals

Hypothetical 2

Having dealt with several agonizing dilemmas in representing previous criminal clients, you want to avoid any uncertainty in representing your current client in defending against an armed robbery charge. During your first meeting with the client, he asks "Do you want me to tell you whether I did it or not?"

Should you tell your client that you want to know whether he committed the armed robbery?

YES NO

87704251_1 FDFCDC2 36 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP Ethical Considerations When Clients Want to Testify T. Spahn (4/7/17) Hypotheticals

Hypothetical 3

You are defending a client accused of a burglary in Charlotte. She had always been hesitant to give you what seems like a "straight story" about where she was when the burglary occurred. This morning, she told you that she intended to testify that she was in Dallas when the burglary occurred -- but cannot point to any alibi witnesses, or any paperwork that shows she was in Dallas. You know from other witnesses that your client was in Charlotte the morning and the evening of the day the burglary occurred. Your check of airline schedules does not explain how she could have been in Charlotte early and late that day, but in Dallas when the burglary occurred. You wonder what level of knowledge triggers your duties to avoid putting on false testimony.

What level of knowledge triggers the lawyers' ethics duties that arise if a client intends to testify falsely?

(A) Suspicion.

(B) Reasonable certainty.

87704251_1 FDFCDC3 37 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP Ethical Considerations When Clients Want to Testify T. Spahn (4/7/17) Hypotheticals

Hypothetical 4

You met early this morning with a prospective new client. He told you that a few weeks ago he won a million dollar verdict in a personal injury case in which another local lawyer represented him. But now he is worried that someone might discover why he won -- he deliberately lied on the stand about several important matters during the trial.

What do you do?

(A) You must disclose your client's fraud on the tribunal.

(B) You may disclose your client's fraud on the tribunal, but you don't have to.

4 87704251_1 FDFCDC 38 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP Ethical Considerations When Clients Want to Testify T. Spahn (4/7/17) Hypotheticals

Hypothetical 5

You met late this morning with one of your clients. You had successfully represented her earlier this week in a small breach of contract case. She told you that her conscience has been bothering her ever since the trial ended. To your surprise, your client then confessed to deliberately lying on the stand during the trial you just won.

What do you do?

(A) You must disclose your client's fraud on the tribunal.

(B) You may disclose your client's fraud on the tribunal, but you don't have to.

5 87704251_1 FDFCDC 39 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP Ethical Considerations When Clients Want to Testify T. Spahn (4/7/17) Hypotheticals

Hypothetical 6

You met over lunch today with one of your clients. You had invited her to toast an important date -- yesterday was the last day the defendant could have appealed a $10 million verdict you had obtained for your client after a lengthy jury trial. After a few too many toasts, your client said: "What makes this day so sweet is that no one -- not even you -- suspected that most of my testimony was a lie."

What do you do?

(A) You must disclose your client's fraud on the tribunal.

(B) You may disclose your client's fraud on the tribunal, but you don't have to.

6 87704251_1 FDFCDC 40 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP Ethical Considerations When Clients Want to Testify T. Spahn (4/7/17) Hypotheticals

Hypothetical 7

You met this afternoon with one of your clients. You thought he might be coming to give you a gift or otherwise thank you for representing him in a case that settled very favorably earlier this week. Instead, he apparently wanted to gloat over your initial pessimistic view of the case. He told you that you might have been right about the law, but that you had underestimated his ability to make up facts that he testified about at his deposition. When you asked him what he meant, he surprised you by saying that most of his deposition testimony resulting in the favorable settlement was a lie.

What do you do?

(A) You must disclose your client's fraud on the tribunal.

(B) You may disclose your client's fraud on the tribunal, but you don't have to.

7 87704251_1 FDFCDC 41 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP Ethical Considerations When Clients Want to Testify T. Spahn (4/7/17) Hypotheticals

Hypothetical 8

After a long and stressful day, you turned on the local news after dinner. The lead story described a $10 million personal injury plaintiff's verdict for one of your former clients. You had only represented her for a short time, and had withdrawn before you filed a lawsuit -- because she had told you that she intended to fake paralysis to increase her damages. The news story showed her leaving the courthouse in a wheelchair and quoted her statement that she was happy the defendant had to pay such a large amount for having caused her paralyzing accident.

What do you do?

(A) You must disclose your former client's fraud on the tribunal.

(B) You may disclose your former client's fraud on the tribunal, but you don't have to.

8 87704251_1 FDFCDC 42 VIRGINIA:

IN THE SUPREME COURT OF VIRGINIA AT RICHMOND

IN THE MATTER OF SUPREME COURT RULES PART 6, § II, RULES OF PROFESSIONAL CONDUCT 1.6 AND 3.3

PETITION OF THE VIRGINIA STATE BAR

Michael W. Robinson, President Karen A. Gould, Executive Director James M. McCauley, Ethics Counsel Virginia State Bar 1111 East Main Street Suite 700 Richmond, VA 23219-0026 Phone (804) 775-0500 Fax (804) 775-0501

FDFCDC 43

TABLE OF CONTENTS

I. Overview of the Issues 1

II. Publication and Comments 10

III. Proposed Rule Change 11

IV. CONCLUSION 31

FDFCDC 44 VIRGINIA:

IN THE SUPREME COURT OF VIRGINIA AT RICHMOND

IN THE MATTER OF SUPREME COURT RULES, PART 6, § II, RULES OF PROFESSIONAL CONDUCT 1.6 AND 3.3

PETITION

TO THE HONORABLE CHIEF JUSTICE AND THE JUSTICES OF THE SUPREME COURT OF VIRGINIA:

NOW COMES the Virginia State Bar, by its president and executive director, pursuant to Part 6, § IV,

Paragraph 10-4 of the Rules of this Court, and requests review and approval of amendments to Rules of

Professional Conduct 1.6 and 3.3, Part 6, § II, Rules of Virginia Supreme Court, as set forth below. The proposed amendments were approved by a vote of 52 to 7 by the Council of the Virginia State Bar on June 16,

2016 (Record, Page 36).

I. Overview of the Issues

The Virginia State Bar Standing Committee on Legal

Ethics (“Committee”) has proposed amendments to Rules of Professional Conduct 1.6 and 3.3. These rule amendments address a lawyer’s duties of confidentiality 1

FDFCDC 45 under Rule 1.6 and duties of candor to the court under

Rule 3.3, and remedy the internal inconsistency of the

Rules in addressing a client’s stated intent to commit perjury, while maintaining the lawyer’s duty to take steps to prevent false evidence, the prohibition on participating in the presentation of false evidence, and duty to take remedial steps if false evidence is presented. In all regards, the proposed amendments seek to balance the lawyer’s duty of confidentiality with the competing interests that either compel or permit a lawyer to disclose otherwise confidential information.

As approved by Council, the proposed rule amendments would:

1. Remove client perjury from being addressed both

as a duty of disclosure under Rule 1.6 and as a

separate duty under Rule 3.3 and address the

issue solely under Rule 3.3;

2. Reinforce the duties of candor with additional

comments under Rule 3.3 to provide additional

guidance when lawyers face the challenges

FDFCDC 46 presented by a client’s potential false

testimony;

3. Clarify that a lawyer’s duty to disclose a

client’s intent to commit a crime applies to a

stated intent to commit a crime that would

involve death, bodily injury, or a substantial

financial injury to another;

4. Permit, but not require, a lawyer to disclose

information in order to prevent death or serious

bodily injury to another; and

5. Establish that a lawyer’s duty to disclose

information regarding false evidence applies

throughout the course of any legal proceeding but

does not apply to stale evidence regarding a

fully concluded matter.

6. Clarify that the lawyer only has a duty to

reveal a third party’s fraud upon a tribunal when

that fraud occurs in the course of a proceeding

in which the lawyer is representing a client.

In addressing the thorny issues surrounding a client’s potential perjury, the amendments are intended

FDFCDC 47 to clarify a lawyer’s obligations when a client discloses his or her intent to commit perjury well in advance of trial, when the lawyer can withdraw from the representation before the client’s intended perjury occurs. Under the current version of Rule 1.6(c)(1), the lawyer may arguably be required to report the client’s intention to commit perjury once that intention is expressed, even if that occurs long before trial, and thus might preclude more appropriate steps.

This interpretation of the rule, however, is inconsistent with the comments to Rule 3.3 that specifically address the issue of client perjury, and indicate that, where a confrontation over the client’s intended perjury occurs before trial, “the lawyer ordinarily can withdraw.” Rule 3.3 Comment [12].

The Committee’s effort to reconcile Rules 1.6 and

3.3 as they apply to a client’s stated intent to commit perjury resulted from an inquiry by a member of the bar who was defending a client charged with the crime of shoplifting. The store’s security police stopped the client and told her that her shoplifting had been

FDFCDC 48 captured on surveillance cameras operated by the store.

The client gave a statement to the security officers and her lawyer acknowledging the theft but later changed her statement, denying that she had taken the merchandise, once she learned that the department store could not produce the video recording. The client told her lawyer that she intended to testify that she did not take anything from the store. After warning the client that perjury is a crime, and that unless she abandoned her intent to commit perjury the lawyer would have to withdraw from representation and inform the court that the client intended to commit perjury, the client discharged the lawyer. The lawyer sought an informal ethics opinion as to what his post-discharge ethical duties were at this point. Under Rule 3.3, the

Committee believed that the lawyer had a duty to move to withdraw, that the lawyer was not necessarily required to inform the court that the reason for the motion to withdraw was the client’s stated intent to commit perjury; and, that if permitted to withdraw, the lawyer would have discharged fully his ethical

FDFCDC 49 obligations under these circumstances.

However, Rule 1.6(c)(1), because of its inclusion of perjury as an intended crime, seems to require the lawyer to report the client’s intent to commit perjury, unless the client has abandoned his or her intent, regardless of the stage of the proceedings, and regardless of whether the lawyer successfully withdrew.

RULE 1.6

After consideration of the apparent inconsistency

between Rule 1.6(c)(1), requiring immediate disclosure,

and the comments to Rule 3.3 that provide that

withdrawal is the appropriate remedy when the client’s

intent is expressed in advance of trial, the Committee

concluded that Rule 3.3 expresses a more thorough and

practical approach to client perjury, as set out in

Comments [12]-[13b]. The Committee therefore has

revised Rule 1.6(c)(1) to resolve any confusion arising

from its current mandate and to clarify that Rule 3.3

sets out the lawyer’s obligations if the client

expresses an intent to commit perjury. The Committee

determined that 1.6(c)(2) can be deleted in its

FDFCDC 50 entirety, since the lawyer’s obligations when a client commits fraud on a tribunal are already thoroughly addressed by Rule 3.3.

The Committee also revised Rule 1.6(c)(1) which mandates a lawyer to disclose certain confidential information to limit its application to crimes that are

“reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another,” rather than requiring disclosure of a client’s intent to commit any crime, no matter how minor. Taken literally, current Rule 1.6(c)(1) would require the lawyer to report the client’s intent regarding misdemeanor offenses or regulated conduct for which the lawyer and client may disagree about the applicable regulatory

requirements. The Committee believes that the revised

language better balances the lawyer’s duty of

confidentiality and loyalty to her client with the

lawyer’s duty to society.

Similarly, the Committee added a seventh provision

to paragraph (b), permitting disclosure when reasonably

FDFCDC 51 necessary to “prevent reasonably certain death or substantial bodily harm.” This provision mirrors ABA

Model Rule 1.6(b)(1), and permits the lawyer to disclose information about actions by the client or third parties that are reasonably certain to lead to death or substantial bodily harm, even if the harm is not the result of a crime. The Committee revised various comments to the Rule to reflect these changes, including adding Comment [8a] from the ABA Model Rules to elaborate on the disclosure permitted by Rule

1.6(b)(7).1

RULE 3.3

Comments to Rule 3.3 were revised and added in order to more thoroughly address the lawyer’s obligations in cases of false evidence or testimony, now that Rule 3.3 is clearly established as the sole source of the lawyer’s obligations in these situations.

The Committee also modified paragraph (d) to clarify that the lawyer only has a duty to reveal a third

1 After discussion at the Executive Committee meeting on June 15, 2016, the example of environmental harms was removed from the comment because the example of a toxic waste discharge is too problematic to serve as a good example of what a lawyer may permissibly disclose under the proposed rule.

FDFCDC 52 party’s fraud upon a tribunal when that fraud occurs in the course of a proceeding in which the lawyer is representing a client – a lawyer does not have a general obligation to disclose fraud by third parties when the lawyer is not involved in the case at all.

Finally, the Committee added paragraph (e) and accompanying Comment [15], both from the ABA Model

Rule, to establish and explain a definite time limit on the lawyer’s duty to disclose and rectify false evidence or false statements made to the court. The rules require, and will continue to require, that if a lawyer knows that a client has committed perjury, the lawyer must report that fact to the court promptly. The proposed change only affects perjury or false evidence that is revealed to the lawyer after a final order has been entered and the time for an appeal has expired.

While recognizing the laudatory premise underlying the current rule, the Committee concluded that the duty to report should be subject to a sensible time limit on and the conclusion of the proceeding—after a final order has been entered and the time for an appeal has

FDFCDC 53 run—provided a practical and objective framework. The

Committee believes that this time limit strikes an appropriate balance by requiring disclosure of the client’s perjury when the matter is still before the court and there is the opportunity for effective remedial action, but protecting the client’s confidences regarding past conduct once the matter is final.

The proposed changes are included below in Section

III, with deletions stippled and additions underlined.

II. Publication and Comments

The Standing Committee on Legal Ethics approved the proposed amendments to Rules 1.6 and 3.3 at its meeting on January 21, 2016 (Record, Page 6). The Virginia

State Bar issued a press release dated February 1,

2016, pursuant to Part 6, § IV, Paragraph 10-2(c) of the Rules of this Court (Record, Page 7). Notice of the proposed amendments was also published in the

Virginia Lawyer, Vol. 64, page 48 in the February 2016 issue (Record, Page 26); on the bar’s website on the

FDFCDC 54 “Proposed Rule Changes” page (Record, Page 15); and in the bar’s E-News on February 1, 2016 (Record, Page 27).

Two comments were received: one from LaBravia J.

Jenkins on behalf of the Virginia Association of

Commonwealth’s Attorneys, dated February 24, 2016

(Record, Page 29), and one from Cullen D. Seltzer, dated June 1, 2016 (Record, Page 33). James M.

McCauley, Ethics Counsel, responded to Ms. Jenkins’s comment by letter dated March 3, 2016 (Record, Page

31).

III. Proposed Rule Change

RULE 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:

(1) such information to comply with law or a court order;

FDFCDC 55 (2) such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(3) such information which clearly establishes that the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation;

(4) such information reasonably necessary to protect a client’s interests in the event of the representing lawyer’s death, disability, incapacity or incompetence;

(5) such information sufficient to participate in a law office management assistance program approved by the Virginia State Bar or other similar private program;

(6) information to an outside agency necessary for statistical, bookkeeping, accounting, data processing, printing, or other similar office management purposes, provided the lawyer exercises due care in the selection of the agency, advises the agency that the information must be kept confidential and reasonably believes that the information will be kept confidential.;

(7) such information to prevent reasonably certain death or substantial bodily harm.

FDFCDC 56 (1) the intention of a client, as stated by the client, to commit a crime reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned., and However, if the crime involves perjury by the client, that the attorney shall take appropriate remedial measures as required by Rule 3.3seek to withdraw as counsel; or

(2) information which clearly establishes that the client has, in the course of the representation, perpetrated a fraud related to the subject matter of the representation upon a tribunal. Before revealing such information, however, the lawyer shall request that the client advise the tribunal of the fraud. For the purposes of this paragraph and paragraph (b)(3), information is clearly established when the client acknowledges to the attorney that the client has perpetrated a fraud; or

(32)information concerning the misconduct of another attorney to the appropriate professional authority under Rule 8.3. When the information necessary to report the misconduct is protected under this Rule, the attorney, after consultation, must obtain client consent. Consultation should include full disclosure of all reasonably foreseeable consequences of both disclosure and non-disclosure to the client.

FDFCDC 57 (d) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected under this Rule.

COMMENT

[1] The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights.

[2] The common law recognizes that the client's confidences must be protected from disclosure. The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.

[2a] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that clients usually follow the advice given, and the law is upheld.

[2b] A fundamental principle in the client- lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

[3] The principle of confidentiality is given effect in two related bodies of law, the attorney- client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a 14

FDFCDC 58 witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

[3a] The rules governing confidentiality of information apply to a lawyer who represents an organization of which the lawyer is an employee.

[4] The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.

Authorized Disclosure

[5] A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion.

[5a] Lawyers frequently need to consult with colleagues or other attorneys in order to competently represent their clients’ interests. An overly strict reading of the duty to protect client information would 15

FDFCDC 59 render it difficult for lawyers to consult with each other, which is an important means of continuing professional education and development. A lawyer should exercise great care in discussing a client’s case with another attorney from whom advice is sought. Among other things, the lawyer should consider whether the communication risks a waiver of the attorney-client privilege or other applicable protections. The lawyer should endeavor when possible to discuss a case in strictly hypothetical or abstract terms. In addition, prior to seeking advice from another attorney, the attorney should take reasonable steps to determine whether the attorney from whom advice is sought has a conflict. The attorney from whom advice is sought must be careful to protect the confidentiality of the information given by the attorney seeking advice and must not use such information for the advantage of the lawyer or a third party.

[5b] Compliance with Rule 1.6(a) might include fulfilling duties under Rule 1.14, regarding a client with an impairment.

[5c] Compliance with Rule 1.6(b)(5) might require a written confidentiality agreement with the outside agency to which the lawyer discloses information.

[6] Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

[6a] Lawyers involved in insurance defense work that includes submission of detailed information regarding the client’s case to an auditing firm must be extremely careful to gain consent from the client after full and adequate disclosure. Client consent to provision of information to the insurance carrier does not equate with consent to provide the information to an outside auditor. The lawyer must obtain specific 16

FDFCDC 60 consent to disclose the information to that auditor. Pursuant to the lawyer’s duty of loyalty to the client, the lawyer should not recommend that the client provide such consent if the disclosure to the auditor would in some way prejudice the client. Legal Ethics Opinion #1723, approved by the Supreme Court of Virginia, September 29, 1999.

Disclosure Adverse to Client

[6b] The confidentiality rule is subject to limited exceptions. However, to the extent a lawyer is required or permitted to disclose a client's confidences, the client will be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action. The public is better protected if full and open communication by the client is encouraged than if it is inhibited.

[7] Several situations must be distinguished.

[7a] First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2(c). Similarly, a lawyer has a duty under Rule 3.3(a)(4) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2(c) to avoid assisting a client in criminal or fraudulent conduct.

[7b] Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2(c), because to "counsel or assist" criminal or fraudulent conduct requires knowing that the conduct is of that character.

[7c] Third, the lawyer may learn that a client intends prospective criminal conduct. As stated in paragraph (c)(1), the lawyer is obligated to reveal such information if the crime is reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or 17

FDFCDC 61 property of another. Some discretion Caution is involvedwarranted as it is very difficult for a lawyer to "know" when proposed criminal conduct will actually be carried out, for the client may have a change of mind. If the client’s intended crime is perjury, the lawyer must look to Rule 3.3(a)(4) rather than paragraph (c)(1).

[8] The lawyer's exercise of discretion requires consideration ofWhen considering disclosure under paragraph (b), the lawyer should weigh such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the nature of the client's intended conduct, the lawyer's own involvement in the transaction, and factors that may extenuate the conduct in question. Where practical, the lawyer should seek to persuade the client to take appropriate action. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to the purpose.

[8a] Paragraph (b)(7) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.

Withdrawal

[9] If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1).

[9a] After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise provided in Rule 1.6. 18

FDFCDC 62 Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like.

[9b] Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13(b).

Dispute Concerning a Lawyer's Conduct

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(2) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend, of course, applies where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable. 19

FDFCDC 63

[10a] If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge can arise in a civil, criminal or professional disciplinary proceeding, and can be based on a wrong allegedly committed by the lawyer against the client, or on a wrong alleged by a third person; for example, a person claiming to have been defrauded by the lawyer and client acting together. A lawyer entitled to a fee is permitted by paragraph (b)(2) to prove the services rendered in an action to collect it. This aspect of the Rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.

Disclosures Otherwise Required or Authorized

[11] If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the attorney-client privilege when it is applicable. Except as permitted by Rule 3.4(d), the lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

[12] The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 2.3, 3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope

FDFCDC 64 of these Rules, but a presumption should exist against such a supersession.

Attorney Misconduct

[13] Self-regulation of the legal profession occasionally places attorneys in awkward positions with respect to their obligations to clients and to the profession. Paragraph (c)(32) requires an attorney who has information indicating that another attorney has violated the Rules of Professional Conduct, learned during the course of representing a client and protected as a confidence or secret under Rule 1.6, to request the permission of the client to disclose the information necessary to report the misconduct to disciplinary authorities. In requesting consent, the attorney must inform the client of all reasonably foreseeable consequences of both disclosure and non- disclosure.

[14] Although paragraph (c)(32) requires that authorized disclosure be made promptly, a lawyer does not violate this Rule by delaying in reporting attorney misconduct for the minimum period of time necessary to protect a client's interests. For example, a lawyer might choose to postpone reporting attorney misconduct until the end of litigation when reporting during litigation might harm the client's interests.

[15-17] ABA Model Rule Comments not adopted.

Former Client

[18] The duty of confidentiality continues after the client-lawyer relationship has terminated.

Acting Reasonably to Preserve Confidentiality

[19] Paragraph (d) requires a lawyer to act reasonably to safeguard information protected under this Rule against unauthorized access by third parties and against inadvertent or unauthorized disclosure by 21

FDFCDC 65 the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of this Rule if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the employment or engagement of persons competent with technology, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

[19a] Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other laws, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of this Rule.

[20] Paragraph (d) makes clear that a lawyer is not subject to discipline under this Rule if the lawyer has made reasonable efforts to protect electronic data, even if there is a data breach, cyber-attack or other incident resulting in the loss, destruction, misdelivery or theft of confidential client information. Perfect online security and data protection is not attainable. Even large businesses and government organizations with sophisticated data security systems have suffered data breaches. Nevertheless, security and data breaches have become so prevalent that some security measures must be reasonably expected of all businesses, including lawyers and law firms. Lawyers have an ethical 22

FDFCDC 66 obligation to implement reasonable information security practices to protect the confidentiality of client data. What is “reasonable” will be determined in part by the size of the firm. See Rules 5.1(a)-(b) and 5.3(a)-(b). The sheer amount of personal, medical and financial information of clients kept by lawyers and law firms requires reasonable care in the communication and storage of such information. A lawyer or law firm complies with paragraph (d) if they have acted reasonably to safeguard client information by employing appropriate data protection measures for any devices used to communicate or store client confidential information. To comply with this Rule, a lawyer does not need to have all the required technology competencies. The lawyer can and more likely must turn to the expertise of staff or an outside technology professional. Because threats and technology both change, lawyers should periodically review both and enhance their security as needed; steps that are reasonable measures when adopted may become outdated as well. [21] Because of evolving technology, and associated evolving risks, law firms should keep abreast on an ongoing basis of reasonable methods for protecting client confidential information, addressing such practices as: (a) Periodic staff security training and evaluation programs, including precautions and procedures regarding data security; (b) Policies to address departing employee’s future access to confidential firm data and return of electronically stored confidential data; (c) Procedures addressing security measures for access of third parties to stored information; (d) Procedures for both the backup and storage of firm data and steps to securely erase or

FDFCDC 67 wipe electronic data from computing devices before they are transferred, sold, or reused; (e) The use of strong passwords or other authentication measures to log on to their network, and the security of password and authentication measures; and (f) The use of hardware and/or software measures to prevent, detect and respond to malicious software and activity.

*****

RULE 3.3 Candor Toward The Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, subject to Rule 1.6;

(3) fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel; or

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. 24

FDFCDC 68

(c) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

(d) A lawyer who receives information clearly establishing that a person other than a client has perpetrated a fraud upon athe tribunal in a proceeding in which the lawyer is representing a client shall promptly reveal the fraud to the tribunal.

(e) The duties stated in paragraphs (a) and (d) continue until the conclusion of the proceeding, and apply even if compliance requires disclosure of information protected by Rule 1.6.

COMMENT

[1] The advocate's task is to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate's duty of candor to the tribunal. However, an advocate does not vouch for the evidence submitted in a cause; the tribunal is responsible for assessing its probative value.

[2] ABA Model Rule Comment not adopted.

Representations by a Lawyer

[3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, Section 8.01- 271.1 of the Code of Virginia states that a lawyer's signature on a pleading constitutes a certification 25

FDFCDC 69 that the lawyer believes, after reasonable inquiry, that there is a factual and legal basis for the pleading. Additionally, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(c) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(c), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

Misleading Legal Argument

[4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. Furthermore, the complexity of law often makes it difficult for a tribunal to be fully informed unless pertinent law is presented by the lawyers in the cause. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(3), an advocate has a duty to disclose controlling adverse authority in the subject jurisdiction which has not been disclosed by the opposing party.

False Evidence

[5] When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes. 26

FDFCDC 70 [6] When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is falseIf a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce evidence that is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures.

[7 -9] ABA Model Rule Comments not adopted.

[7] ABA Model Rule Comment not adopted.

[8] The prohibition against offering false evidence only applies if the lawyer knows the evidence is false. A lawyer’s reasonable belief or suspicion that evidence is false does not preclude its presentation to the trier of fact. A lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, but the lawyer cannot ignore an obvious falsehood.

[9] Although paragraph (a)(4) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer’s ability to discriminate in the quality of evidence and thus impair the lawyer’s effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.

FDFCDC 71 Remedial Measures

[10] ABA Model Rule Comments not adopted Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client, or another witness, offers testimony during that proceeding that the lawyer knows to be false. In such situation or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done.

[11] Except in the defense of a criminal accused, the rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperates in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(c). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. 28

FDFCDC 72 Thus the client could in effect coerce the lawyer into being a party to fraud on the court.

Perjury by a Criminal Defendant

[12] Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that the lawyer should seek to persuade the client to refrain from perjurious testimony, there has been dispute concerning the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available.

[13] The most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious. The lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court.

[13a] Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This is a coherent solution but makes the advocate a knowing instrument of perjury.

FDFCDC 73 [13b] The ultimate resolution of the dilemma, however, is that the lawyer must reveal the client's perjury if necessary to rectify the situation. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. See Rule 1.2(c).

Ex Parte Proceedings

[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. For purposes of this Rule, ex parte proceedings do not include grand jury proceedings or proceedings which are non-adversarial, including various administrative proceedings in which a party chooses not to appear. However, a particular tribunal (including an administrative tribunal) may have an explicit rule or other controlling precedent which requires disclosure even in a non-adversarial proceeding. If so, the lawyer must comply with a disclosure demand by the tribunal or challenge the action by available legal means. The failure to disclose information as part of a legal challenge to a

FDFCDC 74 demand for disclosure will not constitute a violation of this Rule.

Duration of Obligation

[15] The obligation to rectify false evidence or false statements of law and fact should have a practical time limit. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

IV. CONCLUSION

The Supreme Court is authorized to regulate the

practice of law in the Commonwealth of Virginia and to

prescribe a code of ethics governing the professional

conduct of attorneys. Va. Code §§ 54.1-3909, 3910.

Pursuant to this statutory authority, the Court has

promulgated rules and regulations relating to the

organization and government of the Virginia State Bar.

Va. S. Ct. R., Pt. 6, § IV. Paragraph 10 of these

rules sets forth the process by which legal ethics

advisory opinions and rules of professional conduct are

promulgated and implemented. The amendments to Rules

1.6 and 3.3 were developed and approved in compliance

with all requirements of Paragraph 10.

FDFCDC 75 THEREFORE, the bar requests that the Court approve the proposed amendments to Rules of Professional

Conduct 1.6 and 3.3, Part 6, § II of the Rules of the

Virginia Supreme Court for the reasons stated above.

Respectfully submitted, VIRGINIA STATE BAR

By ______Michael W. Robinson, President

By______Karen A. Gould, Executive Director

Dated this 28th day of June, 2016.

FDFCDC 76 SUPREME COURT REVIEW AND PREVIEW

Paul M. Rashkind

NOTES

FDFCDC 77

UNITED STATES SUPREME COURT REVIEW-PREVIEW-OVERVIEW

CRIMINAL CASES GRANTED REVIEW AND DECIDED DURING THE OCTOBER 2016-17 TERMS THRU MARCH 29, 2017

PAUL M. RASHKIND CHIEF, APPELLATE DIVISION OFFICE OF THE FEDERAL PUBLIC DEFENDER, S.D. FLA.

I. JUDGES

A. Constitutional Right to Impartial Judge. Williams v. Pennsylvania, 136 S. Ct. 1899 (June 9, 2016). Chief Justice Castille of the Pennsylvania Supreme Court refused to recuse himself from a contentious death penalty appeal, in a case in which he had been the elected District Attorney who prosecuted the defendant, had personally authorized the death penalty, and had represented the state on appeal in the case. Moreover, the Chief Justice ran for his judicial position on a law and order campaign, including specific reference to his work in prosecuting the defendant. The pending appeal included significant questions of whether his DA’s office committed violations of Brady v. Maryland. The trial court granted postconviction relief based on prosecutorial misconduct, including failure to disclose exculpatory evidence. The Pennsylvania Supreme Court overturned this decision, with the Chief Justice in the majority, although he was not the deciding vote. Two weeks later, the Chief Justice retired. The U.S. Supreme Court reversed (5-3) in an opinion authored by Justice Kennedy: “The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment. This Court’s precedents set forth an objective standard that requires recusal when the likelihood of bias on the part of the judge “‘is too high to be constitutionally tolerable.’’’ Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Applying this standard, the Court concludes that due process compelled the justice’s recusal.” The majority opinion pointed to Castille’s participation in the decision to seek the death penalty against Williams, and his own comments during the election campaign that made clear his role was not merely ministerial: “Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias. This risk so endangered the appearance of neutrality that his participation

Prepared by Paul M. Rashkind FDFCDC 78 1 in the case ‘must be forbidden if the guarantee of due process is to be adequately implemented.’ Withrow, 421 U.S., at 47.” Having determined that due process was violated, the Court then determined that the error is structural, not subject to harmless error review: “The Court has little trouble concluding that a due process violation arising from the participation of an interested judge is a defect “not amenable” to harmless-error review, regardless of whether the judge’s vote was dispositive. Puckett v. United States, 556 U.S. 129, 141 (2009) (emphasis deleted). The deliberations of an appellate panel, as a general rule, are confidential. As a result, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decision making process. Indeed, one purpose of judicial confidentiality is to assure jurists that they can reexamine old ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues. * * * [I]t does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position. That outcome does not lessen the unfairness to the affected party.” Chief Justice Roberts dissented (Alito joining), and Justice Thomas dissented separately.

B. Standard for Recusal under Due Process Clause. Rippo v. Baker, 137 S. Ct. ___ (Mar. 6, 2017) (per curiam). Michael Damon Rippo was convicted of first-degree murder and other offenses and sentenced him to death. During his trial, Rippo received information that the judge was the target of a federal bribery probe, and he surmised that the district attorney’s office that was prosecuting him was playing a role in that investigation. Rippo moved for the judge’s disqualification under the Due Process Clause of the Fourteenth Amendment, contending that a judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. But the trial judge declined to recuse himself, and (after that judge’s indictment on federal charges) a different judge later denied Rippo’s motion for a new trial. The Nevada Supreme Court affirmed on direct appeal, reasoning in part that Rippo had not introduced evidence that state authorities were involved in the federal investigation. In a later application for state postconviction relief, Rippo advanced his bias claim once more, this time pointing to documents from the judge’s criminal trial indicating that the district attorney’s office had participated in the investigation of the trial judge. The state postconviction court denied relief, and the Nevada Supreme Court affirmed. It likened Rippo’s claim to the “camouflaging bias” theory that this Court discussed in Bracy v. Gramley, 520 U. S. 899 (1997). The Bracy petitioner argued

Prepared by Paul M. Rashkind FDFCDC 79 2 that a judge who accepts bribes to rule in favor of some defendants would seek to disguise that favorable treatment by ruling against defendants who did not bribe him. In Bracy, the U.S. Supreme Court explained that despite the “speculative” nature of that theory, the petitioner was entitled to discovery because he had also alleged specific facts suggesting that the judge may have colluded with defense counsel to rush the petitioner’s case to trial. The Nevada Supreme Court reasoned that, in contrast, Rippo was not entitled to discovery or an evidentiary hearing because his allegations “d[id] not support the assertion that the trial judge was actually biased in this case. In a unanimous per curiam decision the Supreme Court vacated the Nevada Supreme Court’s judgment because it applied the wrong legal standard. “Under our precedents, the Due Process Clause may sometimes demand recusal even when a judge ‘ “ha[s] no actual bias.” ‘ Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986). Recusal is required when, objectively speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ Withrow v. Larkin, 421 U.S. 35, 47 (1975); see Williams v. Pennsylvania, 579 U.S. ___, ___ (2016) (slip op., at 6) (‘The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias’ (internal quotation marks omitted)). Our decision in Bracy is not to the contrary: Although we explained that the petitioner there had pointed to facts suggesting actual, subjective bias, we did not hold that a litigant must show as a matter of course that a judge was ‘actually biased in[the litigant’s] case,’ 132 Nev., at ___, 368 P. 3d, at 744—much less that he must do so when, as here, he does not allege a theory of ‘camouflaging bias.’”

II. SEARCH & SEIZURE

A. Civil Suit for Fourth Amendment Violation. Manuel v. City of Joliet, Ill., 137 S. Ct. ___ (Mar. 21, 2017). Police searched Manuel during a traffic stop, finding a vitamin bottle containing pills. Suspecting the pills to be illegal drugs, the officers conducted a field test, which came back negative for any controlled substance. Still, they arrested Manuel and took him to the police station. There, an evidence technician tested the pills and got the same negative result, but claimed in his report that one of the pills tested “positive for the probable presence of ecstasy.” An arresting officer also reported that, based on his “training and experience,” he “knew the pills to be ecstasy.” On the basis of those false statements, another officer filed a sworn complaint charging Manuel with unlawful possession of a controlled substance. Relying exclusively on that complaint, a county

Prepared by Paul M. Rashkind FDFCDC 80 3 court judge found probable cause to detain Manuel pending trial. Manuel was held in jail for seven weeks after the judge relied on the allegedly fabricated evidence to find probable cause that he had committed a crime. Can Manuel bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement? In a 6-2 decision authored by Justice Kagan, the Court held that he may: “Our answer follows from settled precedent. The Fourth Amendment, this Court has recognized, establishes ‘the standards and procedures’ governing pretrial detention. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 111 (1975). And those constitutional protections apply even after the start of ‘legal process’ in a criminal case—here, that is, after the judge’s determination of probable cause. See Albright v. Oliver, 510 U.S. 266, 274 (1994) (plurality opinion); id., at 290 (Souter, J., concurring in judgment). Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below).” Justice Alito dissented with Justice Thomas joining. The dissent contends the majority failed to answer the question presented and should have decided the case differently: “[T]he Court’s approach ... entirely ignores the question that we agreed to decide, i.e., whether a claim of malicious prosecution may be brought under the Fourth Amendment. I would decide that question and hold that the Fourth Amendment cannot house any such claim. If a malicious prosecution claim may be brought under the Constitution, it must find some other home, presumably the Due Process Clause.”

B. Motor Vehicles: Criminalizing Refusal to Submit to Warrantless Alcohol Tests. Birchfield v. North Dakota, 136 S. Ct. 2160 (June 23, 2016). North Dakota law makes it a criminal offense for a motorist who has been arrested for driving under the influence to refuse to submit to a chemical test of the person’s blood, breath, or urine to detect the presence of alcohol. The Supreme Court of North Dakota held that the State may criminalize any refusal by a motorist to submit to such a test, even if a warrant has not been obtained. A consolidated case addressed a Minnesota law making it a criminal offense for a person who has been arrested for driving while impaired to refuse to submit to a chemical test of the person’s blood, breath, or urine to detect the presence of alcohol. Although the State acknowledged that such tests do not serve the purposes of officer safety or evidence preservation, a divided Minnesota Supreme Court held that a person may be compelled to submit to a warrantless breath test as a “search incident to arrest.” From that starting point, the court held that the State may make refusal to submit to such a test a criminal offense. The U.S. Supreme Court consolidated the cases of

Prepared by Paul M. Rashkind FDFCDC 81 4 three separate defendants and its decision yielded three results. The Supreme Court reversed and remanded one North Dakota decision (Birchfield), affirmed the Minnesota conviction (Bernard), but vacated and remanded the other North Dakota case (Beylund). In an opinion by Justice Alito, the Court held (5-3) that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. A breath test is not very intrusive or embarrassing. Blood tests, though, require piercing the skin and extracting part of the defendant's body. It also gives law enforcement a sample from which they can extract more than BAC, potentially causing anxiety for the tested person. The Court’s decision balanced the government’s interest in preserving highway safety through incentives for cooperation in taking breath tests, against the impact of those tests on personal privacy. The balance favors the state because the impact of breath tests on personal privacy is slight and the need for BAC testing is great. Thus, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving, the driver has no right to refuse, and the government can impose criminal penalties for such refusal. However, this same balance does not apply to blood tests because blood tests are more intrusive. A defendant’s refusal to submit to a warrantless blood draw cannot be justified as a search incident to arrest or as based on implied consent. The Court concluded: (1) Birchfield, who refused the blood draw, was threatened with an unlawful search and unlawfully convicted for refusing that search; (2) Bernard could be criminally prosecuted for refusing a breath test because he had no right to refuse; (3) Beylund, who submitted to a blood draw after being told state law required him to submit, had his case remanded to the North Dakota Supreme Court to revisit its conclusion that his consent was voluntary in light of the partial inaccuracy of the officer’s advisory. Justice Sotomayor (Ginsburg joined) concurred in part and dissented in part, and Justice Thomas dissented in a separate opinion.

C. Search Following Unlawful Stop. Utah v. Strieff, 136 S. Ct. 2056 (June 20, 2016). Police were surveilling a home based upon an anonymous tip of drug dealing. Streiff was seen leaving the home and stopped by police for questioning. During the stop it was learned that there was an outstanding warrant for his arrest. In a search incident to arrest on the warrant, police found Streiff in possession of meth, a glass pipe, and a mall scale with residue. The Utah Supreme Court determined that the initial stop was unlawful and suppressed the evidence found during the arrest on the pre-existing warrant. The U.S. Supreme Court reversed (5-3) in an opinion by Justice Thomas, which found that the outstanding warrant attenuated the unconstitutional stop such that the exclusionary rule does not apply: “To enforce the

Prepared by Paul M. Rashkind FDFCDC 82 5 Fourth Amendment’s prohibition against ‘unreasonable searches and seizures,’ this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression. The question in this case is whether this attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.” Justice Sotomayor (joined by Ginsburg) filed an unusually strong dissent: “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” The dissent was particularly troubled by the prevalence of outstanding warrants for all sorts of minor violations, and it relied in part on Justice Sotomayor’s own real world experience. Justice Kagan (joined by Ginsburg) filed a separate dissent: “If a police officer stops a person on the street without reasonable suspicion, that seizure violates the Fourth Amendment. And if the officer pats down the unlawfully detained individual and finds drugs in his pocket, the State may not use the contraband as evidence in a criminal prosecution. That much is beyond dispute. The question here is whether the prohibition on admitting evidence dissolves if the officer discovers, after making the stop but before finding the drugs, that the person has an outstanding arrest warrant. Because that added wrinkle makes no difference under the Constitution, I respectfully dissent.”

III. RIGHT TO COUNSEL

A. Right to Use Untainted Funds for Legal Fees. Luis v. United States, 136 S. Ct. 1083 (Mar. 30, 2016). Luis is an indicted defendant in a federal criminal case, charged with health care fraud offenses. She wished to retain private counsel to defend her in that criminal case.

Prepared by Paul M. Rashkind FDFCDC 83 6 The government estimated a criminal trial lasting 15 days. In this related, contemporaneous civil action brought by the government under 18 U.S.C. § 1345, a federal district judge entered a preliminary injunction prohibiting her from spending any of her own money, including undisputedly untainted funds that she needed to retain counsel in the criminal case. The federal judge in the civil case rejected her argument that the Constitution prohibits the pretrial restraint of untainted assets needed to pay counsel of choice, finding that “there is no Sixth Amendment right to use untainted, substitute assets to hire counsel.” The Eleventh Circuit affirmed, concluding that the Supreme Court’s jurisprudence addressing the pretrial restraint and forfeiture of tainted assets – Kaley v. United States, ___ U.S. ___, 134 S. Ct. 1090 (2014), United States v. Monsanto, 491 U.S. 600 (1989), and Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617 (1989) – foreclosed a constitutional challenge to the restraint of untainted assets. The Supreme Court vacated the lower court order (5-3) in a plurality decision authored by Justice Breyer: “A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U.S.C. §1345. Those assets include: (1) property ‘obtained as a result of’ the crime, (2) property ‘traceable’ to the crime, and (3) other ‘property of equivalent value.’ §1345(a)(2). In this case, the government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment ‘right ... to have the Assistance of Counsel for [her] defence.’ We agree.” The plurality of four justices (including C.J. Roberts, and Justices Ginsburg and Sotomayor) used a balancing approach to arrive at its decision: “The constitutional right taken together with the nature of the assets lead to this conclusion.” Justice Thomas’s concurrence provided the deciding fifth vote: “I agree with the plurality that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice. But I do not agree with the plurality’s balancing approach. Rather, my reasoning rests strictly on the Sixth Amendment’s text and common-law backdrop.” His concurrence is laden with references to Justice Scalia and his originalist thinking. Justice Kennedy dissented, with Alito joining. Justice Kagan dissented separately because, although she is troubled by Monsanto, its continuing vitality was not before the court in this case. Moreover, “... given that money is fungible, the plurality’s approach leads to utterly arbitrary distinctions as among criminal defendants who are in fact guilty.... The thief who immediately dissipates his ill-gotten gains and

Prepared by Paul M. Rashkind FDFCDC 84 7 thereby preserves his other assets is no more deserving of chosen counsel than the one who spends those two pots of money in reverse order. Yet the plurality would enable only the first defendant, and not the second, to hire the lawyer he wants. I cannot believe the Sixth Amendment draws that irrational line, much as I sympathize with the plurality’s effort to cabin Monsanto, I would affirm the judgment below.”

B. Uncounseled Tribal Court Predicate Convictions. United States v. Bryant, 136 S. Ct. 1954 (June 13, 2016). Title 18 U.S.C. § 117(a) makes it a federal crime for any person to “commit[] a domestic assault within the special maritime and territorial jurisdiction of the United States or Indian country” if the person “has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for” enumerated domestic violence offenses. The Ninth Circuit in this case—over the dissent of eight judges from the denial of rehearing en banc—held that 18 U.S.C. § 117(a) is unconstitutional as applied to recidivist domestic-violence offenders who have uncounseled tribal-court misdemeanor convictions that resulted in imprisonment. The government sought cert, which was granted, to decide whether reliance on valid uncounseled tribal-court misdemeanor convictions to prove Section 117(a)’s predicate-offense element violates the Constitution. The Supreme Court reversed in a unanimous opinion by Justice Ginsburg. The Court pointed first to historical precedent holding that because tribes are separate sovereigns, there is no Sixth Amendment right to counsel in tribal courts. Congress, through the Indian Civil Rights Act, has accorded procedural protections similar to, but not coextensive with, those contained in the Bill of Rights. Only if the tribal court imposes a sentence in excess of one year must the tribe provide appointed counsel to indigent defendants. In Bryant’s case, because his prior tribal convictions for domestic violence resulted in sentences of less than one year, he had no right to counsel under the ICRA. Thus, his prior uncounseled convictions were valid when entered because they comported with the ICRA (and there is no Sixth Amendment right to counsel). As such, these convictions are unlike prior convictions that were invalid because obtained in violation of the Sixth Amendment right to counsel, which the Court held in Burgett v. Texas and United States v. Tucker, may not be relied on to impose a longer term of imprisonment for a subsequent conviction. Because Bryant's convictions were valid when entered, the Court held, they may be used to establish a prior domestic violence conviction for purposes of 117(a). The ICRA also requires tribes to ensure “due process of law,” but the Court rejected that approach, holding that proceedings in compliance with the ICRA “sufficiently ensure the reliability of tribal-court convictions,” and that “the use of those

Prepared by Paul M. Rashkind FDFCDC 85 8 convictions in a federal prosecution does not violate a defendant's right to due process.” Justice Thomas concurred in the opinion, given the Court’s precedents, but wrote separately to suggest that Burgett was wrongly decided and (apparently) that the Sixth Amendment is not implicated when an uncounseled prior conviction is used to enhance a sentence, even if invalid when entered. He also urged the Court to reconsider its precedents regarding tribal sovereignty and Congress’ purported plenary power over Indian affairs.

IV. DOUBLE JEOPARDY AND DUAL SOVEREIGNS

A. Dual Prosecutions in Puerto Rico. Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863 (June 9, 2016). In a fractured opinion written by Justice Kagan (6-2, with two concurring opinions), a majority of the Court held that dual prosecutions by Puerto Rico and the U.S. government constitute double jeopardy: “The Double Jeopardy Clause of the Fifth Amendment prohibits more than one prosecution for the ‘same offence.’ But under what is known as the dual-sovereignty doctrine, a single act gives rise to distinct offenses—and thus may subject a person to successive prosecutions—if it violates the laws of separate sovereigns. To determine whether two prosecuting authorities are different sovereigns for double jeopardy purposes, this Court asks a narrow, historically focused question. The inquiry does not turn, as the term ‘sovereignty’ sometimes suggests, on the degree to which the second entity is autonomous from the first or sets its own political course. Rather, the issue is only whether the prosecutorial powers of the two jurisdictions have independent origins—or, said conversely, whether those powers derive from the same ‘ultimate source.’ United States v. Wheeler, 435 U.S. 313, 320 (1978). In this case, we must decide if, under that test, Puerto Rico and the United States may successively prosecute a single defendant for the same criminal conduct. We hold they may not, because the oldest roots of Puerto Rico’s power to prosecute lie in federal soil.” Justice Ginsburg (joined by Thomas) filed a concurring opinion and Justice Thomas filed his own opinion, concurring in part, and concurring in the judgment. Justice Breyer (joined by Sotomayor) dissented.

B. Double Jeopardy Following Successful Appeal. Bravo-Fernandez v. United States, 137 S. Ct. 352 (Nov. 29, 2016). This case concerns the issue-preclusion component of the Double Jeopardy Clause, which has been set forth generally in three prior decisions of the Supreme Court. In Ashe v. Swenson, 397 U.S. 436 (1970), the Supreme Court held that the collateral estoppel aspect of the Double Jeopardy Clause bars a prosecution that depends on a fact necessarily decided in the defendant’s favor by an earlier acquittal. In United States v. Powell,

Prepared by Paul M. Rashkind FDFCDC 86 9 469 U.S. 57 (1984), the Court held that, in a single trial, the jury’s acquittal on one count does not invalidate the jury’s valid conviction on another count, even if the conviction is logically inconsistent with the acquittal. And in Yeager v. United States, 557 U.S. 110 (2009), the Court held that when a jury acquits on one count and hangs on another, the acquittal retains preclusive effect under Ashe and prevents retrial of the hung count—even if the acquittal was logically inconsistent with the hung count. The defendants here were charged with conspiring and traveling to violate 18 U.S.C. § 666, in an alleged program bribery based on a single weekend trip to see a boxing match in Las Vegas. The jury acquitted them of conspiracy, but convicted them of violating § 666. The convictions were vacated on appeal because they rested on incorrect jury instructions, and it is undisputed that the acquittals depended on the jury’s finding that petitioners did not violate § 666. The government nonetheless sought to retry petitioners on the § 666 charges. The Supreme Court granted review to decide, “Whether, under Ashe and Yeager, a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause.” In a unanimous opinion written by Justice Ginsburg (with Justice Thomas concurring) the Court held that the Double Jeopardy Clause does not bar the government from retrying defendants after a “jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency.” The Court’s opinion explains: “In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that ‘when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ Ashe v. Swenson, 397 U.S. 436, 443 (1970). see Green v. United States, 355 U.S. 184, 188 (1957), but because the verdicts are rationally irreconcilable, the acquittal gains no preclusive effect, United States v. Powell, 469 U.S. 57, 68 (1984). Does issue preclusion attend a jury’s acquittal verdict if the same jury in the same proceeding fails to reach a verdict on a different count turning on the same critical issue? We have answered yes, in those circumstances, the acquittal has preclusive force. Yeager v. United States, 557 U.S. 110, 121–122 (2009). As ‘there is no way to decipher what a hung count represents,’ the Court had reasoned, a jury’s failure to decide ‘has no place in the issue-preclusion analysis.’ (‘[T]he fact that a jury hangs is evidence of nothing—other than, of course, that it has failed to decide anything.’). ‘In the case before us, the jury returned irreconcilably inconsistent verdicts of conviction and acquittal. Without more, Powell would control. There could be no retrial of charges that yielded acquittals but, in view of the inconsistent verdicts, the

Prepared by Paul M. Rashkind FDFCDC 87 10 acquittals would have no issue preclusive effect on charges that yielded convictions. In this case, however, unlike Powell, the guilty verdicts were vacated on appeal because of error in the judge’s instructions unrelated to the verdicts’ inconsistency. Petitioners urge that, just as a jury’s failure to decide has no place in issue-preclusion analysis, so vacated guilty verdicts should not figure in that analysis. We hold otherwise. One cannot know from the jury’s report why it returned no verdict. ‘A host of reasons’ could account for a jury’s failure to decide— ‘sharp disagreement, confusion about the issues, exhaustion after along trial, to name but a few.’ Yeager, 557 U.S., at 121. But actual inconsistency in a jury’s verdicts is a reality; vacatur of a conviction for unrelated legal error does not reconcile the jury’s inconsistent returns.” Justice Thomas’ concurrence contends that the doctrine of issue preclusion under the Double Jeopardy clause is wrong and the Court should revisit Ashe and Yeager.

V. CRIMES

A. International Jurisdiction Over Crimes. Baston v. United States, 137 S. Ct. ___ (cert. denied Mar. 6, 2017) (Thomas, J., dissenting from denial of certiorari). In connection with a U.S. prosecution for sex trafficking, Baston (a non-U.S. citizen) was ordered to pay restitution to a prostitute who prostituted for him in Australia. Baston petitioned for cert. Although the full court denied certiorari, Justice Thomas dissented, laying out a blueprint for making such a challenge anew, when perhaps three other justices will be prepared to grant cert. (in a more sympathetic case). Justice Thomas’ dissent begins: “The Constitution, through the Foreign Commerce Clause, grants Congress authority to “regulate Commerce with foreign Nations.” Art. I, §8, cl. 3. Without guidance from this Court as to the proper scope of Congress’ power under this Clause, the courts of appeals have construed it expansively, to permit Congress to regulate economic activity abroad if it has a substantial effect on this Nation’s foreign commerce. In this case, the Court of Appeals declared constitutional a restitution award against a non-U.S. citizen based upon conduct that occurred in Australia. The facts are not sympathetic, but the principle involved is fundamental. We should grant certiorari and reaffirm that our Federal Government is one of limited and enumerated powers, not the world’s lawgiver. *** We should grant certiorari in this case to consider the proper scope of Congress’ Foreign Commerce Clause power.” The dissent lays out the substance of the argument against such jurisdiction, concluding: Taken to the limits of its logic, the consequences of the Court of Appeals’ reasoning are startling. The Foreign Commerce Clause would permit Congress to regulate any economic activity anywhere in the world, so long as Congress had a

Prepared by Paul M. Rashkind FDFCDC 88 11 rational basis to conclude that the activity has a substantial effect on commerce between this Nation and any other. Congress would be able not only to criminalize prostitution in Australia, but also to regulate working conditions in factories in China, pollution from power-plants in India, or agricultural methods on farms in France. I am confident that whatever the correct interpretation of the foreign commerce power may be, it does not confer upon Congress a virtually plenary power over global economic activity. [Disclosure: The Office of the Federal Public Defender for the Southern District of Florida served as counsel for Mr. Baston].

B. Proof of Insider Trading. Salman v. United States, 137 S. Ct. 420 (Dec. 6, 2016). Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission’s Rule 10b–5 prohibits, under criminal penalty, undisclosed trading on inside corporate information by individuals who are under a duty of trust and confidence that prohibits them from secretly using such information for their personal advantage. These persons also may not tip inside information to others for trading. The tippee acquires the tipper’s duty to disclose or abstain from trading if the tippee knows the information was disclosed in breach of the tipper’s duty, and the tippee may commit securities fraud by trading in disregard of that knowledge. In Dirks v. SEC, 463 U.S. 646 (1983), the Supreme Court explained that a tippee’s liability for trading on inside information hinges on whether the tipper breached a fiduciary duty by disclosing the information. A tipper breaches such a fiduciary duty when the tipper discloses the inside information for a personal benefit. A jury can infer a personal benefit— and thus a breach of the tipper’s duty—where the tipper receives something of value in exchange for the tip or “makes a gift of confidential information to a trading relative or friend.” Salman challenged his convictions for conspiracy and insider trading. Salman received lucrative trading tips from an extended family member, who had received the information from Salman’s brother-in-law. Salman then traded on the information. He argued that he cannot be held liable as a tippee because the tipper (his brother-in-law) did not personally receive money or property in exchange for the tips and thus did not personally benefit from them. The Court of Appeals disagreed, holding that Dirks allowed the jury to infer that the tipper here breached a duty because he made a “‘gift of confidential information to a trading relative.’” The Supreme Court affirmed in a unanimous decision authored by Justice Alito, holding that the Court of Appeals properly applied Dirks. The jury could infer that the tipper here personally benefited from making a gift of confidential information to a trading relative: “Maher, the tipper, provided inside information to a close relative, his brother Michael. Dirks makes clear that a tipper

Prepared by Paul M. Rashkind FDFCDC 89 12 breaches a fiduciary duty by making a gift of confidential information to ‘a trading relative,’ and that rule is sufficient to resolve the case at hand.” Additionally, the Court rejected the argument that the gift- giving standard is too vague as applied in this case and should fail under the rule of lenity—yet it left open the possibility that lenity might be applicable in a different case with a different benefit. “We also reject Salman’s appeal to the rule of lenity, as he has shown ‘no grievous ambiguity or uncertainty that would trigger the rule’s application.’ Barber v. Thomas, 560 U.S. 474, 492 (2010). To the contrary, Salman’s conduct is in the heartland of Dirks’s rule concerning gifts. It remains the case that ‘[d]etermining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts.’ But there is no need for us to address those difficult cases today, because this case involves ‘precisely the “gift of confidential information to a trading relative” that Dirks envisioned.’”

C. ACCA Elements Under Enumerated Clause: Impermissible Use of Modified Categorical Approach. Mathis v. United States, 136 S. Ct. 2243 (June 23, 2016). Mathis pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pre- Johnson, the district court found that Mathis’s five burglary convictions in Iowa were violent felonies and justified sentencing under the ACCA. The court found that the Iowa burglary statutes in question, Iowa Code §§ 713.1 and 713.5, were divisible under Descamps v. United States, 133 S. Ct. 2276 (2013). Under Descamps, the trial court believed it could use the modified categorical approach to determine the particular elements of the specific burglary provision under which Mathis was convicted. Additionally— in a ruling that cannot survive Johnson—the trial court found that the burglaries were violent felonies under the ACCA’s residual clause because they were substantially similar to generic burglary and posed the same risk of harm to others. Finally, the court found Mathis’s prior conviction in Iowa for interference with official acts inflicting serious injury was also a violent felony for ACCA purposes. As a result of the ACCA enhancement, Mathis was sentenced to the mandatory minimum of 180 months’ imprisonment with five years of supervised release. On appeal, Mathis argued that the district court erred by finding that the Iowa burglary statute was divisible and by applying the modified categorical approach to determine the nature of his convictions. This error, Mathis argued, led the district court to erroneously conclude that his five previous burglary convictions were violent felonies for ACCA purposes. Still pre-Johnson, the court of appeals affirmed under 18 U.S.C. § 924(e)(1)(ii) (enumerating burglary), even though the Iowa burglary statute is not generic. In the

Prepared by Paul M. Rashkind FDFCDC 90 13 court’s view, the non-generic statute is, however, divisible, which allows a court to utilize the modified categorical approach (using certain documents, such as the charging papers and jury instructions) to determine if the prior convictions are violent felonies. Relying on a jury instruction of a related statute that defined “occupied structure,” and the underlying charging documents in Mathis’s burglary cases, the court of appeals found that his convictions conformed to generic burglary. Mathis argued that the statute was not divisible because it does not provide alternative elements, but rather alternative means of committing the crime. The Supreme Court reversed (5-3), in an opinion written by Justice Kagan, reaffirming the Court’s emphasis on the categorical approach. When a statute defines only one crime, with one set of elements, but which lists alternative means by which a defendant can satisfy those elements, and those means are broader than a qualifying offense, a sentencing court cannot explore the means to determine whether a defendant's conduct qualifies as a prior violent offense for purposes of ACCA. Specifically, Iowa's burglary law was broader than generic burglary because “structures” and “vehicles” were alternative means of fulfilling a single element, and it didn't matter that the defendant’s prior offense conduct involved burglarizing a structure. The Court held that the sentencing court is prohibited from using the modified categorical approach when it is “clear” according to “authoritative sources of state law” that each of the alternative terms listed in the relevant statute (in this case, “building, structure, [or] land, water or air vehicle”) set forth alternative means and not elements. Because authoritative Iowa law makes clear that the jury need not agree on whether the burgled location was a building, structure, boat or other vehicle in order to convict, the question in Richard Mathis’s case was “easy” and his prior conviction for Iowa burglary cannot qualify as a “violent felony.” The Court also discussed the types of authoritative law to which a court may make reference under this analysis. As sources of authoritative state law, the majority in Mathis pointed to a state supreme court decision expressly holding that the jury need not agree on the means of commission. The majority also offered that in some cases the statute itself may provide the answer, either by assigning different punishments tied to alternative terms (thus making them elements under Apprendi) or by itself identifying which facts must be charged or are merely means of committing the offense. “[I]f state law fails to provide clear answers,” the sentencing judge can at that point “peek” at “the record of a prior conviction itself” to see if the charging document, plea colloquies, plea agreements, or jury instructions reveal that the term is an element or means. In other words, how the prosecutor chose to charge the offense in a particular case may be considered authority for what the

Prepared by Paul M. Rashkind FDFCDC 91 14 prosecutor must charge by law in order to prevail. But even the majority admits that this “sneak peek” may not always make the answer plain, in which case the defendant must prevail due to lack of clarity. Justice Breyer (Ginsburg joining) dissented, as did Justice Alito in a separate opinion.

D. Hobbs Act: Conspiracy to Commit Extortion. Ocasio v. United States, 136 S. Ct. 1423 (May 2, 2016). The Hobbs Act defines extortion, in relevant part, as “the obtaining of property from another, with his consent, ... under color of official right.” 18 U.S.C. § 1951(b)(2). The Supreme Court has previously held that a public official violates that statute when he “obtain[s] a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Evans v. United States, 504 U.S. 255, 268 (1992). A jury found Ocasio, a former Baltimore Police officer, guilty of four offenses relating to his involvement in a kickback scheme to funnel wrecked automobiles to a Baltimore auto repair shop in exchange for cash kickbacks. The trial evidence established a wide-ranging kickback scheme involving the Majestic Repair Shop and Baltimore Police officers who referred accident victims to Majestic for body work in exchange for kickbacks of $150-$300 per vehicle. Ocasio was convicted on three Hobbs Act extortion counts plus a charge of conspiracy to commit such extortion. On appeal, he maintained that his conspiracy conviction is fatally flawed because the kickbacks were from one co-conspirator to another. The Fourth Circuit affirmed. The Supreme Court granted cert., and also affirmed (5-3), holding that Ocasio’s argument is contrary to “age old conspiracy law.” In an opinion by Justice Alito, the majority held that the person extorting can conspire with the persons extorted to violate the Hobbs Act, with proof that the owner of the property agreed to give it over under color of official right. Justice Breyer concurred, explaining he was bound by the prior precedent of Evans—he did not believe that its continuing vitality was included in the question presented or briefed. Justice Thomas dissented, as did Justice Kagan, joined by Chief Justice Roberts. Of interest, cert. was granted and oral argument occurred before Justice Scalia’s death. During that oral argument, held during the first week of October, Justice Scalia revealed dissatisfaction with the holding of Evans. Although cases argued in October are ordinarily decided long before May, this case was not decided for seven months, inferring the case may have originally been decided differently, perhaps with a head-on challenge to the continuing vitality of Evans. Justice Thomas’ dissent seems as though it may have been such an opinion: “Today the Court holds that an extortionist can conspire to commit extortion with the person whom he is extorting. See ante, at 18. This holding further exposes the flaw in this Court’s understanding of extortion. In my view, the Court started

Prepared by Paul M. Rashkind FDFCDC 92 15 down the wrong path in Evans v. United States, 504 U. S. 255 (1992), which wrongly equated extortion with bribery. In so holding, Evans made it seem plausible that an extortionist could conspire with his victim. Rather than embrace that view, I would not extend Evans’ errors further.” Assuming Justice Scalia embraced that view—as he intimated during oral argument—Justice Breyer may well have been persuaded that the issue was ripe and joined in this view, forming an entirely different outcome to the case. Since Justice Breyer’s concurrence recognizes the strength of the dissent, it is conceivable that a subsequent case that clearly presents the Evans case for reconsideration will lead to a different result.

E. Requisite Proof of Bank Fraud. Shaw v. United States, 137 S. Ct. 462 (Dec. 12, 2016). The bank fraud statute, 18 U.S.C. §1344(1), makes it a crime to knowingly execute a scheme ... to defraud a financial institution, such as a federally insured bank. Shaw was convicted of violating this provision. He argued that the provision does not apply to him because he intended to cheat only a bank depositor, not a bank. It was undisputed that Shaw schemed to steal a bank customer’s money from the customer’s bank account by deceiving the bank, BUT Shaw did not intend to steal the bank’s money. Shaw argued that a conviction for bank fraud under 18 U.S.C. § 1344(1) required proof both that he deceived the bank AND intended to cheat the bank. The Supreme Court rejected his argument in a unanimous decision authored by Justice Breyer. As to the primary argument, the Court held: “The basic flaw in this argument lies in the fact that the bank, too, had property rights in [the depositor’s] bank account. When a customer deposits funds, the bank ordinarily becomes the owner of the funds and consequently has the right to use the funds as a source of loans that help the bank earn profits (though the customer retains the right, for example, to withdraw funds). 5A Michie, Banks and Banking, ch. 9, §1, pp. 1–7 (2014) (Michie); id., §4b, at 54-58; id., §38, at 162; Phoenix Bank v. Risley, 111 U. S. 125, 127 (1884). Sometimes, the contract between the customer and the bank provides that the customer retains ownership of the funds and the bank merely assumes possession. Michie, ch. 9, §38, at 162; Phoenix Bank, supra, at 127. But even then the bank is like a bailee, say, a garage that stores a customer’s car. Michie, ch. 9, §38, at 162. And as bailee, the bank can assert the right to possess the deposited funds against all the world but for the bailor (or, say, the bailor’s authorized agent). 8A Am. Jur. 2d, Bailment §166, pp. 685-686 (2009). This right, too, is a property right. 2 W. Blackstone, Commentaries on the Laws of England 452-454 (1766) (referring to a bailee’s right in a bailment as a ‘special qualified property’). Thus, Shaw’s scheme to cheat [the depositor] was also a scheme to deprive the bank of certain bank property rights.” The Court

Prepared by Paul M. Rashkind FDFCDC 93 16 also rejected a series of alternative arguments, including the rule of lenity. The Court of Appeals’ decision was vacated, however, to address Shaw’s claim in the Supreme Court that the jury instruction given at his trial was ambiguous or improper; the court of appeals was directed to consider (1)if that issue had been fairly presented to it on appeal; (2) if the instruction was lawful; and, if not, (3) if any error was harmless.

F. Hobbs Act Robbery. Taylor v. United States, 136 S. Ct. 2074 (June 20, 2016). Taylor was a member of a local gang that ripped off drug dealers, believing they would not report the robberies. He was nevertheless charged with Hobbs Act robbery in federal court. He contended that the government did not prove the drugs were in interstate commerce and he sought to introduce defense evidence that the objects of the robberies were not in interstate commerce. The district court refused his defense evidence and found that illicit drugs are inherently in interstate commerce. The Supreme Court affirmed (7- 1) in an opinion authored by Justice Alito. “The Hobbs Act makes it a crime for a person to affect commerce, or to attempt to do so, by robbery. 18 U.S.C. §1951(a). The Act defines ‘commerce’ broadly as interstate commerce ‘and all other commerce over which the United States has jurisdiction.’ §1951(b)(3). This case requires us to decide what the Government must prove to satisfy the Hobbs Act’s commerce element when a defendant commits a robbery that targets a marijuana dealer’s drugs or drug proceeds. The answer to this question is straightforward and dictated by our precedent. We held in Gonzales v. Raich, 545 U.S. 1 (2005), that the Commerce Clause gives Congress authority to regulate the national market for marijuana, including the authority to proscribe the purely intrastate production, possession, and sale of this controlled substance. Because Congress may regulate these intrastate activities based on their aggregate effect on interstate commerce, it follows that Congress may also regulate intrastate drug theft. And since the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce ‘over which the United States has jurisdiction,’ §1951(b)(3), the prosecution in a Hobbs Act robbery case satisfies the Act’s commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. By targeting a drug dealer in this way, a robber necessarily affects or attempts to affect commerce over which the United States has jurisdiction. In this case, petitioner Anthony Taylor was convicted on two Hobbs Act counts based on proof that he attempted to rob marijuana dealers of their drugs and drug money. We hold that this evidence was sufficient to satisfy the Act’s commerce element.” Justice Thomas dissented, contending: “The Court’s holding creates serious constitutional problems and extends our already expansive, flawed commerce-power precedents. I would construe the Hobbs Act in

Prepared by Paul M. Rashkind FDFCDC 94 17 accordance with constitutional limits and hold that the Act punishes a robbery only when the Government proves that the robbery itself affected interstate commerce.”

G. Federal Bribery, Hobbs Act and Honest Services Fraud. McDonnell v. United States, 136 S. Ct. 2355 (June 27, 2016). Robert McDonnell, a former Virginia governor, and his wife, Maureen, were convicted on federal corruption charges based on a theory that he accepted otherwise-lawful gifts and loans in exchange for taking five supposedly “official acts.” Specifically, they were indicted and convicted for honest services fraud and Hobbs Act extortion relating to their acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies. To convict the McDonnells, the government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” 18 U.S.C. §201(a)(3). According to the government, Governor McDonnell committed at least five “official acts,” including “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning the research studies. The McDonnells claimed, those five acts were limited to routine political courtesies: arranging meetings, asking questions, and attending events. It is undisputed that Governor McDonnell never exercised any governmental power on behalf of his benefactor, promised to do so, or pressured others to do so. Indeed, the only staffer to meet with the alleged bribe-payor during the supposed conspiracy testified that Governor McDonnell never “interfere[d]” with her office’s “decision- making process.” The courts below nonetheless reasoned that arranging a meeting to discuss a policy issue, or inquiring about it, is itself “official” action “on” that issue—even if the official never directs any substantive decision. Moreover, the jury was never instructed that, to convict, it needed to find that Governor McDonnell exercised (or pressured others to exercise) any governmental power. But the panel upheld the instructions as “adequat[e]” because they quoted a statute,

Prepared by Paul M. Rashkind FDFCDC 95 18 while adding a host of improper elaborations that the Government aggressively exploited. The Supreme Court reversed in a unanimous decision authored by Chief Justice Roberts, which substantially limted the meaning of “official acts” in §201(a)(3): “According to the Government, ‘Congress used intentionally broad language’ in § 201(a)(3) to embrace ‘any decision or action, on any question or matter, that may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity.’ ... The Government concludes that the term ‘official act’ therefore encompasses nearly any activity by a public official. In the Government’s view, ‘official act’ specifically includes arranging a meeting, contacting another public official, or hosting an event— without more—concerning any subject, including a broad policy issue such as Virginia economic development. ... Governor McDonnell, in contrast, contends that statutory context compels a more circumscribed reading, limiting ‘official acts’ to those acts that ‘direct[] a particular resolution of a specific governmental decision,’ or that pressure another official to do so. ... He also claims that ‘vague corruption laws’ such as § 201 implicate serious constitutional concerns, militating ‘in favor of a narrow, cautious reading of these criminal statutes.’ ... Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of § 201(a)(3) and adopt a more bounded interpretation of ‘official act.’ Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”

H. SORNA: International Registration. Nichols v. United States, 136 S. Ct. 1113 (Apr. 4, 2016). Title 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided. Two men lived on opposite sides of the Missouri River in the Kansas City Metropolitan area, one in Missouri within the Eighth Circuit, the other in Kansas within the Tenth Circuit. Both men were convicted of sex offenses before the enactment of the Sex Offender Registration and Notification Act (“SORNA'”), but were required to register under SORNA. Both men traveled from their homes to the Kansas City International Airport, flew to the same foreign country—the Philippines—to reside, and thereafter did not update their registrations in the jurisdictions they had left. On these facts, the Eighth Circuit ruled in United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013), that the failure to update a registration does not violate SORNA. The Tenth Circuit came to the opposite conclusion in Nichols’ case. The Supreme Court reversed Nichols’ conviction in a unanimous decision authored by Justice Alito. The decision reasons that “[a] person who moves from Leavenworth to

Prepared by Paul M. Rashkind FDFCDC 96 19 Manila no longer ‘resides’ (present tense) in Kansas,” thus SORNA “did not require Nichols to update his registration in Kansas once he no longer resided there.”

I. Reckless Misdemeanor as Crime of Domestic Violence Under 922(g)(9). Voisine v. United States, 136 S. Ct. 2272 (June 27, 2016). Two defendants, Armstrong and Voisine, were convicted of misdemeanor assault crimes of domestic violence in violation of Maine state law. Both were subsequently charged with possession of a firearm or ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(9). Both Armstrong and Voisine moved to dismiss, arguing that their indictment and information did not charge a federal offense and that § 922(g)(9) violated the Constitution. The district court denied the motions, and both defendants entered guilty pleas conditioned on the right to appeal the district court’s decision. The defendants argued that a misdemeanor assault on the basis of offensive physical contact, as opposed to one causing bodily injury, is not a “use of physical force,” and, concordantly, not a “misdemeanor crime of domestic violence.” They also made a Second Amendment challenge. The First Circuit consolidated their cases and affirmed. The defendants petitioned for certiorari in 2014 (cert. I), which the Supreme Court granted, vacating the court of appeals’ decision, and remanding for reconsideration in light of United States v. Castleman, 134 S. Ct. 1405 (2014). Castleman held that “Congress incorporated the common-law meaning of ‘force’— namely, offensive touching—in § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence.’” Thus, the “physical force” in § 921(a)(33)(A) required violence or could be satisfied by offensive touching. Castleman left open whether a conviction with the mens rea of recklessness could serve as a § 922(g)(9) predicate. On remand, the First Circuit again affirmed, basing its decision on a categorical approach to the statute. Again, the defendants petitioned for cert, in 2015 (cert. II), which the Supreme Court granted, to answer the question left open in Castleman. In a 6-2 decision authored by Justice Kagan, the Court held that for purposes of determining whether a prior conviction qualifies as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9), the phrase “use ... of physical force” in § 921(a)(33)(A) includes acts of force undertaken recklessly, “i.e., with conscious disregard of a substantial risk of harm.” In footnote 4, however, the Court was careful to point out that its interpretation of “use of force” in this context “does not resolve” whether reckless behavior is encompassed by 18 U.S.C. § 16, and that courts of appeals have “usually read the same term in § 16 to reach only ‘violent force,’” i.e., intentional force. The Court’s more expansive reading of § 921(a)(33)(A) “do[es] not foreclose the possibility” that § 16 excludes reckless conduct “in light of differences in their contexts and

Prepared by Paul M. Rashkind FDFCDC 97 20 purposes.” Justice Thomas (Sotomayor joining in part) dissented, discussing the concepts of “use,” transferred intent, and “volition” in the context of the hypothetical Angry Plate Thrower, the Door Slammer, the Text-Messaging Dad, the Reckless Policeman, the Soapy- Handed Husband, and the Chivalrous Door Holder. The dissenters would hold that the “use of physical force” in § 921(a)(33)(A) is narrower than most state assault statutes. Justice Thomas separately expresses concerns about the permanent deprivation of the Text- Messaging Dad’s right to bear arms, should he be prosecuted for recklessly causing injury to a family member by getting into a car accident.

VI. TRIAL AND PLEA

A. Jurors

1. Batson Jury Challenges. Foster v. Chatman, 136 S. Ct. 1737 (May 23, 2016). In this capital case involving a black defendant and a white victim, Georgia struck all four black prospective jurors and provided roughly a dozen “race-neutral” reasons for each of the four strikes. The prosecutor later argued that the jury should impose a death sentence to “deter other people out there in the projects.” At the trial level and on direct appeal, Georgia’s courts denied the defendant’s claim of race discrimination under Batson v. Kentucky, 4 76 U.S. 79 (1986). In habeas proceedings, the defendant obtained the prosecution’s notes from jury selection, which were previously withheld. The notes reflect that the prosecution (1) marked the name of each black prospective juror in green highlighter on four different copies of the jury list; (2) circled the word “BLACK”' next to the “Race” question on the juror questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors;” and (5) created strike lists that contradict the “race-neutral” explanation provided by the prosecution for its strike of one of the black prospective jurors. The Georgia courts again declined to find a Batson violation. The Supreme Court granted cert. and reversed (7-1) in an opinion authored by Chief Justice Roberts. The Court held that (1) the Supreme Court had jurisdiction to hear the claim as a federal question, even though it was unable to ascertain if Georgia’s unelaborated judgment might possibly have rested on an independent state ground; and (2) the Georgia decision that Foster failed to show purposeful discrimination was clearly

Prepared by Paul M. Rashkind FDFCDC 98 21 erroneous. To this end, the Court held that under Batson’s step 3 the challenged party must respond with race-neutral reasons but here the record belies much of the prosecution’s reasoning as to two of its strikes, and undermined the justification given for a third juror. Justice Thomas dissented because the Court did not seek to clarify whether a federal question was involved.

2. Post-Trial Inquiry of Juror Prejudice. Pena-Rodriguez v. Colorado, 137 S. Ct. ___ (Mar. 6, 2017). A man entered a women’s bathroom at a Denver horse-racing track and asked the teenage sisters inside if they wanted to drink beer or “party.” After they said no, the man turned off the lights, leaving the room dark. As the girls went to leave, the man grabbed one girl’s shoulder and began moving his hand toward her breast before she swiped him away. The man also grabbed the other girl’s shoulder and buttocks. The sisters exited the bathroom and reported the incident to their father, a worker at the racetrack. They told him they thought the assailant was another employee at the racetrack, who worked in the nearby horse barn. From that description, their father surmised they were referring to Mr. Pena-Rodriguez. At his criminal trial for unlawful sexual contact and harassment, a juror injected racial animus into the deliberations—urging, for example, that the jury convict petitioner “because he’s Mexican and Mexican men take whatever they want,” and that the jury disbelieve petitioner’s alibi witness because the witness was Hispanic. The jury convicted the defendant after deliberating for 12 hours and being given an Allen charge. The jurors’ comments were revealed to defense counsel by two other jurors in a post-trial informal discussion. After learning of these statements, Mr. Pena-Rodriguez sought a new trial, claiming a violation of his constitutional right to an impartial jury. But the Colorado Supreme Court held that the Sixth Amendment allows a “no impeachment” rule to bar courts from considering juror testimony of racial bias during deliberations when that testimony is offered to challenge a verdict. In fact, most states and the federal government have a rule of evidence generally prohibiting the introduction of juror testimony regarding statements made during deliberations when offered to challenge the jury’s verdict. Known colloquially as “no impeachment” rules, they are typically codified as Rule 606(b); in some states, they are a matter of common law. The Supreme Court has ruled, in Warger v. Shauers, 135 S. Ct. 521 (2014), and Tanner v. United States, 483 U.S. 107 (1987), that the Sixth Amendment posed no barrier to ignoring affidavits alleging, respectively,

Prepared by Paul M. Rashkind FDFCDC 99 22 that a juror was biased against a party because her daughter had caused a car accident similar to the one at issue and that jurors were intoxicated during trial; but it also cautioned that “[t]here may be cases of juror bias so extreme” that applying a no-impeachment rule would abridge a defendant’s right to an impartial jury. The Supreme Court granted cert. here to decide if a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury. In an opinion by Justice Kennedy, the Supreme Court held (5-3) that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee. Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.” PRACTICE NOTE: The Court cautioned that “[t]he practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel’s post-trial contact with jurors.” Justice Alito dissented, joined by Chief Justice Roberts and Justice Thomas.

B. Appellate Consequences of Guilty Plea. Class v. United States, 137 S. Ct. ___ (cert. granted Feb. 21, 2017); decision below unreported (D.C. Cir. 2016). The defendant had firearms in his car, which was parked and locked in a parking lot on the grounds of the U.S. Capitol. He was charged with violation of 40 U.S.C. § 5104(e), which prohibits carrying on, or having readily accessible, a firearm on the grounds of the U.S. Capitol building. In defense, he raised Second Amendment and due process challenges, but he ultimately pled guilty, conceding his factual guilt. The plea agreement did not contain an express waiver of his right to appeal his conviction. On appeal, he re-raised his

Prepared by Paul M. Rashkind FDFCDC 100 23 constitutional challenges to the statute. The D.C. Circuit held that by pleading guilty, he waived all “claims of error on appeal, even constitutional claims.” The Supreme Court granted cert. to decide if “a guilty plea inherently waives a defendant's right to challenge the constitutionality of his statute of conviction.” The question implicates two prior Supreme Court decisions. In Blackledge v. Perry, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975), the Court held that a defendant who pleads guilty can still raise on appeal any constitutional claim that does not depend on challenging his “factual guilt.” In Blackledge and Menna, the Court held that double jeopardy and vindictive prosecution are two such claims that are not inherently resolved by pleading guilty, because those claims do not challenge whether the government could properly meet its burden of proving each element of the crime. In the years since those two cases were decided, the circuits have become deeply divided on whether a defendant’s challenge to the constitutionality of his statute of conviction survives a plea, or instead is inherently waived as part of the concession of factual guilt. Two circuits (First and Tenth) agree with the D.C. Circuit that a guilty plea waives constitutional challenges to the statute of conviction. Other circuits (Third, Fifth, Sixth, Ninth, and Eleventh) hold that a guilty plea does not inherently waive such constitutional challenges. Three others (Fourth, Seventh, and Eighth) allow facial, but not as-applied, constitutional challenges to a conviction.

C. Immigration Consequences of Guilty Plea. Lee v. United States, 137 S. Ct. 614 (cert. granted Dec. 14, 2016); decision below at 825 F.3d 311 (6th Cir. 2016). In 1982, Jae Lee and his family moved from South Korea to the United States After completing high school, Lee moved to Memphis and became a successful restauranteur. He also started using—and sharing—ecstasy at parties and was charged in 2009 with possession of ecstasy with intent to distribute under 21 U.S.C. § 841(a)(1). Because the evidence against Mr. Lee was considered quite strong, his attorney advised him to plead guilty in exchange for a shorter sentence. The attorney assured Mr. Lee that the plea would not subject him to deportation, but that advice was wrong. Possession of ecstasy with intent to distribute is an aggravated felony that results in mandatory and permanent deportation. See 8 U.S.C. §§ 1101(a)(43)(B), 1227 (a)(2)(A)(iii); 1182(a)(9)(A)(i). Upon learning of this consequence, Lee moved to vacate his conviction and sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. The government concedes that his attorney provided deficient performance, the first part of the two-part test under Strickland v. Washington, 466 U.S. 668, 687 (1984). The question is whether Lee can demonstrate prejudice under the second part of Strickland where he is deemed to be

Prepared by Paul M. Rashkind FDFCDC 101 24 facing strong evidence of guilt. As the Sixth Circuit panel noted, there is a “growing circuit split” over the answer to that question. The Second, Fourth, Fifth, and Sixth Circuits all hold that a defendant in Lee’s position is not entitled to relief. The Third, Seventh, Ninth, and Eleventh Circuits have all “reached the opposite conclusion.” Following its prior circuit precedent, the panel held it lacked the authority “to change camps.” But the panel noted the incongruity of the result: “It is unclear to us why it is in our national interests—much less the interests of justice—to exile a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small drug offense.” Question presented: “To establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984), a defendant who has pleaded guilty based on deficient advice from his attorney must show ‘a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ Hill v. Lockhart, 474 U.S. 52, 59 (1985). In the context of a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States, the question that has deeply divided the circuits is whether it is always irrational for a defendant to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.”

VII. SENTENCING

A. Speedy Trial Right at Sentencing. Betterman v. Montana, 136 S. Ct. 1609 (May 19, 2016). Betterman missed a court date on a domestic assault charge. He turned himself in and was sentenced to 5 years imprisonment on that charge. He was also charged with bail jumping, to which he pleaded guilty, but was not sentenced for over 14 months. In the interim, he was kept at a local jail, so he was denied early release and programs offered only in prison. He made repeated requests to be sentenced, but the trial judge refused to do so. When eventually sentenced on the bail jumping charge, he received an additional 7 years. On appeal, he argued he was denied a speedy trial as to sentencing, but the Montana courts ruled that the speedy trial right does not extend to sentencing. The Supreme Court granted cert. and affirmed, in an opinion written by Justice Ginsburg, which concluded: “the Sixth Amendment's speedy trial guarantee ... does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.” “[B]etween conviction and sentencing, the Constitution’s presumption-of-innocence-protective speedy trial right is not engaged.” The Court left open the possibility that a defendant who suffers inordinate delay “may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.” Because no due

Prepared by Paul M. Rashkind FDFCDC 102 25 process claim was raised with the Court in this case, the majority “express[ed] no opinion on how he might fare under that more pliable standard,” though a footnote indicated that relevant considerations for such a claim “may include the length of and reasons for the delay, the defendant's diligence in requesting expeditions sentencing, and prejudice.” The majority also “reserve[d] the question [of] whether the Speedy Trial Clause applies to bifurcated proceedings in which, at the sentencing stage, facts that could increase the prescribed sentencing range are determined” as well as the question of “whether the right reattaches upon renewed prosecution following a defendant's successful appeal, when he again enjoys the presumption of innocence.” Justice Sotomayor concurred separately to emphasize that the question of the standard to apply to a due process claim for delayed sentencing “is an open one.” But she suggested that the test set forth in Barker v. Wingo, 407 U.S. 514 (1972) may be appropriate: the “factors capture many of the concerns posed in the sentencing delay context” and “because the test is flexible it will allow courts to take account of any differences between trial and sentencing delays.” Justices Thomas and Alito also concurred, but wrote separately to argue against “prejudg[ing]” whether the Barker factors are the correct test for a due process claim relating to a delayed sentencing.

B. Sentencing Variances in Counts Accompanying § 924(c) Convictions. Dean v. United States, 137 S. Ct. 368 (cert. granted Oct. 28, 2016); decision below at 810 F.3d 521 (8th Cir. 2016). Dean and his brother were charged and convicted of various counts relating to two Hobbs Act robberies of different drug dealers, and possession of a firearm in furtherance of the robberies. Dean was sentenced to 400 months for the robberies and consecutive terms of 60 and 300 months for the § 924(c) violations. At sentencing, Dean requested a variance from the advisory guideline range on the counts that did not carry mandatory minimum or consecutive terms, but U.S. District Judge Mark Bennett declined to do so, stating that he had no authority to do so under Eighth Circuit precedent. He did state, however, that if he did have such authority he would have sentenced Dean to 360 months on the § 924(c) convictions, and a one-day sentence on the remaining convictions. The Eighth Circuit affirmed the 760-month sentence, holding that its decision in United States v. Hatcher, 501 F.3d 931 (8th Cir. 2007), controlled. The panel did not address Dean’s argument that the Court’s decision in Pepper v. United States, 562 U.S. 476 (2011), overruled Hatcher. Pepper held that 18 U.S.C. § 3661 states “no limitation” may be placed on a court’s power to consider information about a defendant’s “background, character, and conduct” when seeking to fashion an appropriate sentence. Dean argued that by failing to consider the sentences imposed on the § 924(c) charges, a

Prepared by Paul M. Rashkind FDFCDC 103 26 court is essentially barred from considering an entire category of information about a defendant and risks contravening express Congressional intent in 18 U.S.C. § 3661. The Tenth Circuit, in United States v. Smith, 756 F.3d 1179 (10th Cir. 2014), decided that Pepper overruled the contrary view expressed in the Eighth Circuit’s Hatcher decision. Question presented: Whether the Eighth Circuit’s decision is contrary to the Supreme Court’s decision in Pepper v. United States, 562 U.S. 476 (2011), which overruled United States v. Hatcher, and related opinions from the Eighth Circuit to the extent those opinions limit the district court’s discretion to consider the mandatory consecutive sentence or sentences under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the 18 U.S.C. § 924(c) convictions.

C. Forfeiture. Honeycutt v. United States, 137 S. Ct. 588 (cert. granted Dec. 9, 2016); decision below at 816 F.3d 362 (6th Cir. 2016). Under 21 U.S.C. § 853(a)(1), any person convicted of a federal drug crime must forfeit “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.” This case concerns the application of § 853(a)(1) to individuals convicted of participating in a drug conspiracy who did not personally receive proceeds of that conspiracy. The question presented is whether all members of the conspiracy are jointly and severally liable for forfeiture of all of the reasonably foreseeable proceeds of the conspiracy, even if they did not personally receive those proceeds. The courts of appeals have divided over that question. Here the Sixth Circuit held that “§ 853 mandates joint and several liability among coconspirators for the proceeds of a drug conspiracy.” The Sixth Circuit observed that its decision was consistent with the decisions of a number of other circuits, but it expressly acknowledged that its decision conflicted with United States v. Cano-Flores, 796 F.3d 83 (D.C. Cir. 2015), which “held that § 853 does not countenance joint and several liability.” Rather, Cano-Flores held that a defendant is required to forfeit only those “funds that actually reach the defendant.”

VIII. DEATH PENALTY

A. Execution of Intellectually Disabled. Moore v. Texas, 137 S. Ct. ___ (Mar. 28, 2017). Bobby James Moore fatally shot a store clerk during a botched robbery. He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution. A state habeas court made detailed fact findings and determined that, under the Supreme Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as

Prepared by Paul M. Rashkind FDFCDC 104 27 intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.” The habeas court therefore recommended that Moore be granted relief. The Texas Court of Criminal Appeals declined to adopt the judgment recommended by the state habeas court. In the court of appeal’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the Texas Court of Criminal Appeals in Ex parte Briseno, 135 S.W.3d 1 (2004). The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed]heavily” against upsetting Moore’s death sentence. In a 5-3 decision authored by Justice Ginsburg, the Supreme Court vacated the Texas appellate judgment. “As we instructed in Hall, adjudications of intellectual disability should be ‘informed by the views of medical experts.’ ... That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus. Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the [Texas Court of Criminal Appeals] untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors ‘creat[e]an unacceptable risk that persons with intellectual disability will be executed,’ ... Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.” Chief Justice Roberts dissented, joined by Justices Thomas and Alito.

IX. APPEALS

A. Perfecting Appeal of Deferred Restitution Judgment. Manrique v. United States, 136 S. Ct. 1712 (cert. granted Apr. 25, 2016); decision below at 618 F. App’x 579 (11th Cir. 2015). Fed. R. App. P. 4(b)(2) allows that “[a] notice of appeal filed after the court announces a decision, sentence or order—but before entry of the judgment—is treated as filed on the date of and after entry.” The rule incorporates the Supreme Court’s decision in Lemke v. United States, 346 U.S. 325 (1953) (per curiam), and decisions of the circuits that a premature notice of appeal matures or springs forward when the judgment under review is entered. The interaction of this rule with deferred restitution judgments has become a source of circuit conflict, particularly following this Court’s decision in Dolan v. United States, 560 U.S. 605 (2010), which allows a sentencing court to retain jurisdiction after sentencing to award restitution under the Mandatory Victim Restitution Act, 18 U.S.C. § 3664(d)(5). At the time Dolan was decided, the Court acknowledged that “the interaction of [deferred] restitution orders with appellate time limits could have consequences,” but it

Prepared by Paul M. Rashkind FDFCDC 105 28 “le[ft] all such matters for another day.” 560 U.S. at 618. The Manrique decision, below, exemplifies those consequences and highlights the significant circuit split that exists concerning the jurisdictional prerequisites for appealing a deferred restitution award. At Manrique’s sentencing hearing, the district judge pronounced terms of imprisonment and supervised release, and announced that “restitution is mandatory.” The final judgment imposing sentence deferred entry of the precise restitution amount, stating it would be contained in an amended judgment. Manrique filed a notice of appeal. While the appeal of his sentence was pending, but before any briefing took place, a second final judgment was entered, identical in all respects to the first, except it detailed the specifics of restitution. Both parties thereafter briefed the appeal, including a challenge to the restitution award. The Court of Appeals ruled, sua sponte, that it did not have jurisdiction over the restitution award because Manrique did not file a second notice of appeal designating the amended judgment setting forth the restitution amount. The Eleventh Circuit’s decision conflicts with the Court’s decision in Lemke, the ripening clause of Rule 4(b)(2), and the jurisdictional determinations of the First, Second, Sixth and Ninth Circuits. Confusing that circuit split, two of the four circuits that acknowledge their jurisdiction over deferred restitution judgments have failed to give effect to the ripening clause of Rule 4(b)(2). Uncertain about the interaction of appellate rules, the First Circuit recommends, prospectively, that a second notice of appeal should be filed as to restitution awards, while the Ninth Circuit will dismiss such an appeal if the government simply objects to the timeliness of the premature notice. Question presented: Should the Court grant certiorari to resolve the significant division among the circuits concerning the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely appeal of a criminal judgment imposing sentence, a question left open by the Court’s decision in Dolan v. United States, 560 U.S. 605, 618 (2010)? [Disclosure: The Office of the Federal Public Defender for the Southern District of Florida served as counsel for Mr. Manrique.]

B. Sentence Based on Erroneous Guideline Calculation as Plain Error. Molina-Martinez v. United States, 136 S. Ct. 1338 (Apr. 20, 2016). In sentencing the defendant, the district court applied a Guidelines range higher than the applicable one. The error went unnoticed by the court and the parties, so no timely objection was entered. The error was first noted when, during briefing to the Court of Appeals for the Fifth Circuit, petitioner himself raised the mistake. The Fifth Circuit refused to correct the error because, in its view, petitioner could not establish a reasonable probability that but for the error he would have received a different sentence. Under that court’s

Prepared by Paul M. Rashkind FDFCDC 106 29 decisions, if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify “additional evidence” to show that use of the incorrect Guidelines range did in fact affect his sentence. Absent that evidence, in the Court of Appeals’ view, a defendant who is sentenced under an incorrect range but whose sentence is also within what would have been the correct range cannot demonstrate he has been prejudiced by the error. The Supreme Court reversed, unanimously (with concurrences), overruling the Fifth Circuit’s categorical rule. In an opinion by Justice Kennedy (joined by Roberts, Ginsburg, Breyer, Sotomayor and Kagan), the Court held that “courts reviewing sentencing errors cannot apply a categorical rule requiring additional evidence in cases, like this one, where the district court applied an incorrect range but nevertheless sentenced the defendant within the correct range. ... [A] defendant can rely on the application of an incorrect Guidelines range to show an effect on his substantial rights.” The majority opinion reasoned: “From the centrality of the Guidelines in the sentencing process it must follow that, when a defendant shows that the district court used an incorrect range, he should not be barred from relief on appeal simply because there is no other evidence that the sentencing outcome would have been different had the correct range been used. In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome.” In other words: “When a defendant is sentenced under an incorrect Guidelines range – whether or not the defendant's ultimate sentence falls within the correct range – the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” The government, however, remains free to point to statements by the sentencing court that the sentence it chose was appropriate irrespective of the Guidelines range. Two justices concurred, limiting the reach of the “reasonable probability” formulation. Justice Alito (joined by Thomas), agreed with the result and that the Fifth Circuit's “rigid approach” is incorrect, but took issue with the majority's “speculat[ion]” about “how often the reasonable probability test will be satisfied in future cases.” The concurrence explained: “The Court’s predictions ... are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate.”

X. IMMIGRATION

A. Loss of Citizenship in Criminal Proceeding. Maslenjak v. United States, 137 S. Ct. 809 (cert. granted Jan. 13, 2017); decision below at

Prepared by Paul M. Rashkind FDFCDC 107 30 821 F.3d 675 (6th Cir. 2016). “Whether the Sixth Circuit erred by holding, in direct conflict with the First, Fourth, Seventh, and Ninth Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.”

B. Removal Based on State Arson Crime as Aggravated Felony. Luna Torres v. Lynch, 136 S. Ct. 1619 (May 19, 2016). After records disclosed that Torres, an alien, had been convicted of attempted third- degree arson in violation of New York Penal Law §§ 110.00 and 150.10, the Department of Homeland Security instituted removal proceedings against him. An immigration judge found that Torres was inadmissible to enter the country based on his conviction and that his conviction qualified as an aggravated felony, making him ineligible for cancellation of removal. The Board of Immigration Appeals affirmed that ruling, and the court of appeals upheld the Board’s decision. Luna Torres contended that a state offense, such as arson, does not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43), as “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks. The Supreme Court disagreed with Luna Torres and affirmed (5-3) in an opinion authored by Justice Kagan. The majority opinion held that a state offense counts as a § 1101(a)(43) “aggravated felony” when it has every element of a listed federal crime except one requiring a connection to interstate or foreign commerce. Justice Sotomayor (joined by Thomas and Breyer) dissented: “There is one more element in the federal offense than in the state offense—(5), the interstate or foreign commerce element. Luna thus was not convicted of an offense ‘described in’ the federal statute. Case closed.”

C. Derivative Citizenship. Sessions v. Morales-Santana, 136 S. Ct. 2545 (cert. granted June 28, 2016); decision below at 804 F.3d 520 (2d Cir. 2015). In order for a United States citizen who has a child abroad with a non-U.S. citizen to transmit his or her citizenship to the foreign- born child, the U.S.-citizen parent must have been physically present in the United States for a particular period of time prior to the child’s birth. Here, the government petitioned for cert. after the court of appeals held that, despite the statutory requirement, the Equal Protection clause requires citizenship be conferred on the foreign-born child of an unwed citizen mother. The questions presented are: (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. § 1401 and § 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; (2) Whether the court of appeals erred in conferring U.S.

Prepared by Paul M. Rashkind FDFCDC 108 31 citizenship on respondent, in the absence of any express statutory authority to do so.

D. Unconstitutional Vagueness of 18 U.S.C. § 16(b). Sessions v. Dimaya, 137 S. Ct. 31 (cert. granted Sept. 29, 2016); decision below at 803 F.3d 1110 (2d Cir. 2016). Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague. This is a certiorari petition filed by the government, seeking to overturn the Ninth Circuit’s holding that the provision—a residual clause similar to that found vague in Johnson— is also void for vagueness, following the Supreme Court’s decision in Johnson. There is presently a circuit split on this question: The Sixth, Seventh, Ninth, and Tenth Circuits have held that § 16(b) is unconstitutionally vague under the reasoning in Johnson; the Fifth Circuit held that it is not. The residual clause in § 16(b) is identical to the residual clause in 18 U.S.C. § 924(c)(3)(B), so the outcome in this case will likely also decide whether the residual clause in § 924(c)(3)(B) is unconstitutionally vague.

E. Sex Between 21-Year-Old and 17-Year-Old as Aggravated Felony. Esquivel-Quintana v. Sessions, 137 S. Ct. 368 (cert. granted Oct. 28, 2016); decision below at 810 F.3d 1019 (6th Cir. 2016). Under federal law, the Model Penal Code, and the laws of forty-three states and the District of Columbia, consensual sexual intercourse between a twenty-one-year-old and someone almost eighteen is legal. Seven states have statutes criminalizing such conduct. The question presented is whether a conviction under one of those seven state statutes constitutes the “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act—and therefore constitutes grounds for mandatory removal.

XI. COLLATERAL RELIEF: HABEAS CORPUS, §§ 2241, 2254 AND 2255

A. Johnson Is Retroactively Applicable. Welch v. United States, 136 S. Ct. 1257 (Apr. 18, 2016). Welch was sentenced to 15 years imprisonment under the ACCA, pre-Johnson. He had entered a conditional plea, reserving his right to challenge reliance on one of his prior convictions. His sentence was affirmed on appeal. After the Supreme Court’s decision in Johnson struck down ACCA’s residual clause as unconstitutionally vague, he filed a § 2255 proceeding challenging his sentence under ACCA, but the district court denied relief and a certificate of appealability. The Eleventh Circuit also refused to grant a COA on this first § 2255 motion because the

Prepared by Paul M. Rashkind FDFCDC 109 32 Eleventh Circuit held that Johnson is not retroactively applicable in collateral review, a position at variance with most other circuits. The Supreme Court reversed (7-1), in an opinion written by Justice Kennedy, holding that Johnson is retroactively applicable on collateral review because it is a new rule of substantive law under Teague v. Lane, 489 U.S. 288 (1989), rather than a procedural rule. The ruling in Johnson alters “the range of conduct or the class of persons that the law punishes.” It is not procedural because procedural rules “regulate only the manner of determining the defendant's culpability,” and Johnson “had nothing to do with that.” The decision does not comment on whether the Johnson decision applies retroactively to the Sentencing Guidelines or any other statute. Justice Thomas dissented.

B. Application of Johnson to Federal Sentencing Guidelines. Beckles v. United States, 137 S. Ct. ___ (Mar. 6, 2017) Johnson v. United States, 135 S. Ct. 2551 (2015), deemed unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony”). The residual clause invalidated in Johnson is identical to the residual clause in the career- offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2) (defining “crime of violence”). But the Supreme Court ruled (7-0) that Johnson’s holding does not apply to the post- Booker federal sentencing guidelines, which are only advisory. In an opinion written by Justice Thomas, the Court held that “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause” and that § 4B1.2’s residual clause is not void for vagueness. The majority reasoned that the advisory guidelines do not “fix the permissible sentences” for the defendant, but “merely guide the exercise of the court’s discretion.” According to the Court’s majority, the advisory guidelines do not “implicate the twin concerns underlying vagueness doctrine”—notice and preventing arbitrary enforcement. Even if a person regulates his or her conduct to avoid a guideline enhancement, such as the career offender enhancement, the sentencing court has the discretion to impose the same enhanced sentence. And the district court “did not ‘enforce’ the career offender Guideline” against Beckles; it merely enforced the statutory penalty range for Beckles’ conviction under § 922(g). Justice Ginsburg concurred in the judgment only. In her view, Beckles’ case should have been decided on the narrow ground that the Sentencing Commission identified possession of a sawed-off shotgun as a “crime of violence” in the commentary to § 4B1.2, which she says was “authoritative” under Stinson. She would have deferred “any more encompassing ruling” on the vagueness issue. Justice Sotomayor also concurred in the judgment only. She agreed with Justice Ginsburg that Beckles’ particular case falls on the commentary issue (stating simply that “the commentary

Prepared by Paul M. Rashkind FDFCDC 110 33 under which he was sentenced was not unconstitutionally vague”), but wrote a lengthy opinion explaining why the majority’s vagueness analysis is wrong. She recognized that the advisory guidelines involve legal “rules” that set the “baseline” from which defendants must negotiate, and that “[y]ears of Beckles’ life thus turned solely on whether the career-offender Guideline applied.” Justice Kagan recused herself from participation in this case. NOTE: The Court’s holding is limited to the advisory guidelines only, leaving open the possibility that those sentenced under the mandatory guidelines may raise vagueness challenges to their sentence. Justice Sotomayor expressly notes that the issue regarding the mandatory guidelines was not decided and was left open. Neither Justices Ginsburg nor Sotomayor fully analyzed the commentary issue. Justice Ginsburg summarily dispatched it in a single footnote, and Justice Sotomayor offered no analysis at all. If the government relies on their concurring opinions regarding the commentary issue, in this or any context, contact the Sentencing Resource Counsel Project for assistance in formulating arguments to show why the government’s view is wrong. Additionally, the majority emphasized that its holding does “not render the advisory Guidelines immune from constitutional scrutiny.” Among other things, it specifically pointed out that “in the Eighth Amendment context,” “a district court’s reliance on a vague sentencing factor in a capital case, even indirectly, ‘can taint the sentence.’” (See Espinosa v. Florida, 505 U.S. 1079, 1082 (1992)). Justice Sotomayor, too, pointed to the Eighth Amendment and Espinosa, stating that “the Guidelines carry sufficient legal weight to warrant scrutiny under the Eighth Amendment.” Finally, for those who have already been resentenced after Johnson without the career offender or § 2K2.1 enhancement, Deputy Solicitor General Michael Dreeben stated during oral argument “They will keep their sentences,” (OA Tr. at 43), implying the government will not appeal those cases (at least those decided by the oral argument date in November 2016. [Disclosure: The Office of the Federal Public Defender for the Southern District of Florida served as counsel for Mr. Beckles. Also, thank you to Sentencing Resource Counsel Jennifer Coffin for providing valuable portions of this summary.]

C. Brady Violations.

1. Prosecution Failure to Disclose Exculpatory Evidence. Wearry v. Cain, 136 S. Ct. 1002 (Mar. 7, 2016) (per curiam). Wearry was on Louisiana’s death row, convicted of murder following a trial that relied heavily on a jail-house snitch, Sam Scott, who told multiple conflicting tales. Wearry’s alibi defense was rejected by the jury. After his conviction became final, it emerged that the prosecution had withheld three pieces of

Prepared by Paul M. Rashkind FDFCDC 111 34 exculpatory evidence: (1) Undisclosed police reports revealed that two of Scott’s fellow inmates made statements casting doubt on Scott’s credibility—he told one inmate he wanted to “make sure [Wearry] gets the needle because he jacked over me”; he unsuccessfully tried to orchestrate another inmate to lie about Weaary at trial; (2) Police failed to disclose that Scott had sought a plea deal seeking to reduce his sentence in return for testimony; and (3) Medical evidence undermined Scott’s testimony about the way the crime occurred—a knee injury and recent surgery to an alleged accomplice made it impossible for the accomplice to have run, lifted substantial weight, and crawled into a space, as Scott claimed. Based on this new evidence, Wearry alleged violations of his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), and of his Sixth Amendment right to effective assistance of counsel. Acknowledging that the State “probably ought to have” disclosed the withheld evidence, and that Wearry’s counsel provided “perhaps not the best defense that could have been rendered,” the postconviction court denied relief. Even if Wearry’s constitutional rights were violated, the court concluded, he had not shown prejudice. In turn, the Louisiana Supreme Court also denied relief. The U.S. Supreme Court reversed (6-2) in a per curiam disposition based solely on the Brady/Giglio violations. Procedurally the case is interesting because it directly and summarily reversed the state court’s decision denying habeas relief—before the commencement of federal habeas corpus proceedings—noting that the Supreme Court has jurisdiction over final judgments of state postconviction courts, see 28 U.S.C. § 1257(a) and has used that authority in another case this Term, Foster v. Chatham (raising Batson claim). The merits of the decision reiterate the standard for reversal based on Brady/Giglio violations, which is much more favorable to the accused than traditional ineffective-assistance-of-counsel review. “Because we conclude that the Louisiana courts’ denial of Wearry’s Brady claim runs up against settled constitutional principles, and because a new trial is required as a result, we need not and do not consider the merits of his ineffective- assistance-of-counsel claim. ‘[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, supra, at 87. See also Giglio v. United States, 405 U.S. 150, 153–154 (1972) (clarifying that the rule stated in Brady applies to evidence undermining witness

Prepared by Paul M. Rashkind FDFCDC 112 35 credibility). Evidence qualifies as material when there is “any reasonable likelihood” it could have “affected the judgment of the jury.” Giglio, supra, at 154 (quoting Napue v. Illinois, 360 U.S. 264, 271 (1959)). To prevail on his Brady claim, Wearry need not show that he ‘more likely than not’ would have been acquitted had the new evidence been admitted. Smith v. Cain, 565 U.S. 73, ___–___ (2012) (slip op., at 2–3) (internal quotation marks and brackets omitted). He must show only that the new evidence is sufficient to ‘undermine confidence’ in the verdict. Ibid. Beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction. The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi. See United States v. Agurs, 427 U.S. 97, 113 (1976) (‘[I]f the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.’).” In a footnote, the Court held: “Given this legal standard, Wearry can prevail even if, as the dissent suggests, the undisclosed information may not have affected the jury’s verdict.” In another footnote, the Court reminded that Brady requires disclosure even if the prosecution is unaware of evidence in the possession of police: “‘Brady suppression occurs when the government fails to turn over even evidence that is known only to police investigators and not to the prosecutor.’ Youngblood v. West Virginia, 547 U.S. 867, 869–870 (2006) (per curiam) (internal quotation marks omitted). See also Kyles v. Whitley, 514 U.S. 419, 438 (1995) (rejecting Louisiana’s plea for a rule that would not hold the State responsible for failing to disclose exculpatory evidence about which prosecutors did not learn until after trial when that evidence was in the possession of police investigators at the time of trial).” Justice Alito dissented, joined by Thomas, due to the summary nature of the decision, arguing that the state did not have a fair opportunity to fully brief the issues.

2. Wearry Redux. Turner v. United States and Overton v. United States, 137 S. Ct. 614 (cert. granted Dec. 14, 2016, and cases consolidated); decisions below at 116 A.3d 894 (DC CA 2016). Under Brady v. Maryland, 373 U.S. 83 (1963), evidence favorable to the defense is material, and constitutional error results from its suppression by the government, if “there is any reasonable likelihood it could have affected the judgment of the jury.” Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (per curiam). In this case, the District of Columbia Court of Appeals required petitioner to show a reasonable probability that the suppressed evidence—including identifications of two potential alternative

Prepared by Paul M. Rashkind FDFCDC 113 36 perpetrators, information suggesting that the crime was committed by a much smaller group than posited by the government, information calling into question the thoroughness and accuracy of the government’s investigation, and evidence impeaching a purported eyewitness who testified against petitioner—“would have led the jury to doubt virtually everything” about the government’s case. Applying that standard, the court rejected petitioner’s Brady claim, even though the jury deadlocked repeatedly before finding him guilty and the prosecution itself acknowledged that the case “easily could have gone the other way.” The question presented by the petitioners was whether, consistent with this Court’s Brady jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government’s case in order to establish that the evidence is material. The question presented was re-worded by the Court: Whether the petitioners’ convictions must be set aside under Brady v. Maryland, 373 U.S. 83 (1963).

XII. AEDPA

A. Certificate of Appealability Standard for IAC Claim; Race; Rule 60(b). Buck v. Davis, 137 S. Ct. 759 (Feb. 22, 2017). A Texas jury convicted Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist, Dr. Quijano, to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death. Buck contended that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim was never heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it. In 2006, a federal district court relied on that failure—properly, under then-governing law—to hold that Buck’s claim was procedurally defaulted and unreviewable. In 2014, Buck sought to reopen that 2006 judgment by filing a motion under Federal Rule of Civil Procedure 60(b)(6). He argued that this Court’s decisions in Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. ___ (2013), had changed the law in a way that provided an excuse for his procedural default, permitting him to litigate his claim on the merits. In addition to this

Prepared by Paul M. Rashkind FDFCDC 114 37 change in the law, Buck’s motion identified ten other factors that, he said, constituted the “extraordinary circumstances” required to justify reopening the 2006 judgment under the Rule. See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). The district court denied the motion, and the Fifth Circuit declined to issue the certificate of appealability (COA) requested by Buck to appeal that decision. The Supreme Court granted cert. to decide the question: “Whether and to what extent the criminal justice system tolerates racial bias and discrimination. Specifically, did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court’s precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an ‘expert’ who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?” In a 6-2 decision authored by Chief Justice Roberts, the Court held that (1) the Fifth Circuit exceeded the limited scope of proper COA analysis; (2) Buck demonstrated ineffective assistance of counsel under Strickland; and (3) denial of the Rule 60(b) motion was an abuse of discretion. As to the first part of the holding, the Court held that the COA statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and, if so, an appeal in the normal course. 28 U.S.C. § 2253. At the first stage, the only question is whether the applicant has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or ... could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327. Here, the Fifth Circuit phrased its determination in proper terms. But it reached its conclusion only after essentially deciding the case on the merits, repeatedly faulting Buck for having failed to demonstrate extraordinary circumstances. The question for the court of appeals was not whether Buck had shown that his case is extraordinary; it was whether jurists of reason could debate that issue. Second, the Court held that Buck demonstrated ineffective assistance of counsel under Strickland. To satisfy Strickland, a defendant must first show that counsel performed deficiently. Buck’s trial counsel knew that Dr. Quijano’s report reflected the view that Buck’s race predisposed him to violent conduct and that the principal point of dispute during the penalty phase was Buck’s future dangerousness. Counsel nevertheless called Dr. Quijano to the stand, specifically elicited testimony about the connection between race and violence, and put Dr. Quijano’s report into evidence. No competent defense attorney would introduce evidence

Prepared by Paul M. Rashkind FDFCDC 115 38 that his client is liable to be a future danger because of his race. Strickland further requires a defendant to demonstrate prejudice—“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694. The Court held that it is reasonably probable that without Dr. Quijano’s testimony on race and violence, at least one juror would have harbored a reasonable doubt on the question of Buck’s future dangerousness. This issue required the jury to make a predictive judgment inevitably entailing a degree of speculation. But Buck’s race was not subject to speculation, and according to Dr. Quijano, that immutable characteristic carried with it an increased probability of future violence. Dr. Quijano’s testimony appealed to a powerful racial stereotype and might well have been valued by jurors as the opinion of a medical expert bearing the court’s imprimatur. For these reasons, the district court’s conclusion that any mention of race during the penalty phase was de minimis was rejected by the Supreme Court. So was the state’s argument that Buck was not prejudiced by Dr. Quijano’s testimony because it was introduced by his own counsel, rather than the prosecution. Jurors understand that prosecutors seek convictions and may reasonably be expected to evaluate the government’s evidence in light of its motivations. When damaging evidence is introduced by a defendant’s own lawyer, it is in the nature of an admission against interest, more likely to be taken at face value. Third, the Supreme Court held that the district court’s denial of Buck’s Rule 60(b)(6) motion was an abuse of discretion. Relief under Rule 60(b)(6) is available only in “extraordinary circumstances.” Gonzalez, 545 U.S. at 535. Determining whether such circumstances are present may include consideration of a wide range of factors, including “the risk of injustice to the parties” and “the risk of undermining the public’s confidence in the judicial process.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863–864. The district court’s denial of Buck’s motion rested largely on its determination that race played only a de minimis role in his sentencing. But there is a reasonable probability that Buck was sentenced to death in part because of his race. This is a disturbing departure from the basic premise that our criminal law punishes people for what they do, not who they are. That it concerned race amplifies the problem. Relying on race to impose a criminal sanction “poisons public confidence” in the judicial process, Davis v. Ayala, 576 U.S. ___, a concern that supports Rule 60(b)(6) relief. The extraordinary nature of this case is confirmed by the remarkable steps the state itself took in response to Dr. Quijano’s testimony in other cases. Although the state attempted to justify its decision to treat Buck differently from the other five defendants also subject to Dr. Quijano’s testimony in other cases, the Supreme Court

Prepared by Paul M. Rashkind FDFCDC 116 39 found that justification suspect. Finally, the Supreme Court rejected as “waived” the state’s argument that Martinez and Trevino should not govern Buck’s case because they announced a “new rule” under Teague v. Lane, 489 U.S. 288, that does not apply retroactively to cases (like Buck’s) on collateral review. Justices Thomas and Alito dissented.

B. Overcoming Procedural Default. Davila v. Davis, 137 S. Ct. 810 (cert. granted Jan. 13, 2017); decision below at 650 F. App’x. 860 (5th Cir. 2016). The Court granted cert. on the first question in this death penalty case: (1) Does the rule established in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013), that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial claim of ineffective-of- assistance-of-counsel by trial counsel, also apply to a procedurally defaulted, but substantial, claim of ineffective assistance by appellate counsel.

C. Clearly Established Precedent re Independent Expert Assistance. McWilliams v. Dunn, 137 S. Ct. 808 (cert. granted Jan. 13, 2017); decision below at 634 F. App’x 698 (11th Cir. 2016). The defendant’s mitigation in this Alabama death penalty case was based on severe mental health disorders that resulted from multiple head injuries. In response to the defense motion for a mental health expert, the trial judge appointed an expert who reported his findings simultaneously to the court, the prosecution, and the defense just two days before the sentencing hearing. Defense counsel had no opportunity to consult with the expert or have him review voluminous medical and psychological records that were not made available to the defense until the start of the sentencing hearing. Thus, as the dissent below noted, “McWilliams was precluded from meaningfully participating in the judicial sentencing hearing and did not receive a fair opportunity to rebut the State’s psychiatric experts.” McWilliams petitioned for cert, arguing that this meaningless expert assistance violated his rights under Ake v. Oklahoma, 470 U.S. 68, 83 (1985), which held that when an indigent defendant’s mental health is a significant factor at trial, the State must “assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” However, there is a division among the circuits with regard to this holding, which affects the type of expert assistance indigent defendants receive nationwide, in both capital and non-capital trials. Most circuits have held that an independent defense expert is required by Ake, but a minority of circuits, including the Eleventh Circuit, has found that Ake is satisfied by an expert who reports to both sides and the court. The petition presented two questions but cert.

Prepared by Paul M. Rashkind FDFCDC 117 40 was granted on only the first: (1) When this Court held in Ake that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” did it clearly establish that the expert should be independent of the prosecution?

D. Establishing Ineffective Assistance of Counsel as Structural Error. Weaver v. Massachusetts, 137 S. Ct. 809 (cert. granted Jan. 13, 2017); decision below at 54 N.E.3d 495 (Mass. 2016). Because “most constitutional errors can be harmless,” the Supreme Court has “adopted the general rule that a constitutional error does not automatically require reversal of a [criminal] conviction” and instead is subject to a “harmless-error analysis.” Arizona v. Fulminante, 499 U.S. 279, 306 (1991). Among the constitutional violations subject to such analysis is ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). At the same time, the Court has identified a category of “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless error’ standards.” Fulminante, 499 U.S. at 309. The consequences of such errors are “necessarily unquantifiable and indeterminate” and are therefore not susceptible to a harmless-error inquiry. Sullivan v. Louisiana, 508 U.S. 275, 281-282 (1993). The question presented is whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

E. Deference to State Court Determinations in Absence of Clearly Established Supreme Court Precedent

1. “Looking Through” Summary State Decisions. Wilson v. Sellers, 137 S. Ct. ___ (cert. granted Feb. 27, 2017); decision below at 834 F.3d 1227 (11th Cir. 2016) (en banc). Question presented: Did the Supreme Court’s decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision—as a slim majority of the en banc Eleventh Circuit held in this case—despite the agreement of both parties that the Ylst presumption should continue to apply? Due to the government’s concession, the court has appointed amicus counsel to argue that the Ylst rule has been abrogated.

Prepared by Paul M. Rashkind FDFCDC 118 41 2. Ineffective Assistance of Counsel. Woods v. Etherton, 136 S. Ct. 1149 (Apr. 4, 2016) (per curiam). Law enforcement received an anonymous tip that two white males were traveling on I–96 between Detroit and Grand Rapids in a white Audi, possibly carrying cocaine. Officers spotted a vehicle matching that description and pulled it over for speeding. Etherton was driving; Pollie was in the passenger seat. A search of the car uncovered 125.2 grams of cocaine in a compartment at the bottom of the driver side door. Both Etherton and Pollie were arrested. Etherton was tried in state court on a single count of possession with intent to deliver cocaine. At trial the facts reflected in the tip were not contested. The central point of contention was instead whether the cocaine belonged to Etherton or Pollie. Pollie testified for the prosecution pursuant to a plea agreement. He claimed that he had accompanied Etherton from Grand Rapids to Detroit, not knowing that Etherton intended to obtain cocaine there. According to Pollie, once the pair arrived in Detroit, Etherton left him alone at a restaurant and drove off, returning some 45 minutes later. It was only after they were headed back to Grand Rapids that Etherton revealed he had obtained the drugs. The prosecution also called several police officers to testify. Three of the officers described the content of the anonymous tip leading to Etherton’s arrest. On the third recounting of the tip, trial counsel objected based on hearsay, but the objection was not resolved because the prosecutor agreed to move on. Etherton was convicted. In postconviction proceedings, in state and federal court, Etherton argued that admission of the anonymous tip violated his Confrontation Clause rights under the Sixth Amendment, and that his trial and appellate counsel were ineffective for not objecting or appealing that issue. The state courts rejected his claims (on procedural and substantive grounds), as did the federal district court. But the Sixth Circuit reversed, finding that Etherton’s confrontation right had been violated and he was prejudiced by his counsels’ failures to object or appeal the issue. The Supreme Court reversed, in a per curiam opinion, finding that the Sixth Circuit violated the limited standard of review allowed by AEDPA. “Etherton’s underlying complaint is that his appellate lawyer’s ineffectiveness meant he had ‘no prior opportunity to cross-examine the anonymous tipster.’ ... But it would not be objectively unreasonable for a fairminded judge to conclude—especially in light of the deference afforded trial counsel under Strickland— that the failure to raise such a claim was not due to incompetence but because the facts in the

Prepared by Paul M. Rashkind FDFCDC 119 42 tip were uncontested and in any event consistent with Etherton’s defense. See Harrington[ v. Richter], 562 U.S., at 105 (‘Even under de novo review, the standard for judging counsel’s representation is a most deferential one.’). A fairminded jurist could similarly conclude, again deferring under Strickland, that appellate counsel was not incompetent in drawing the same conclusion. And to reach the final point at issue before the Sixth Circuit, a fairminded jurist—applying the deference due the state court under AEDPA—could certainly conclude that the court was not objectively unreasonable in deciding that appellate counsel was not incompetent under Strickland, when she determined that trial counsel was not incompetent under Strickland. Given AEDPA, both Etherton’s appellate counsel and the state habeas court were to be afforded the benefit of the doubt. Burt [v. Titlow], [571 U.S.] supra, at ___. Because the Sixth Circuit failed on both counts, we grant the petition for certiorari and reverse the judgment of the Court of Appeals.”

A current edition of the UNITED STATES SUPREME COURT REVIEW-PREVIEW-OVERVIEW is available at http://www.rashkind.com

Prepared by Paul M. Rashkind FDFCDC 120 43 LITIGATION STRATEGIES IN OPIOID CASES

Aaron L. Cook Andrea Lantz Harris Lisa M. Lorish

DISCUSSION OVERVIEW

I. The Statutes at Play in Opioid Death and Injury Cases

II. Questions re. Causation

A. Actual cause

B. Legal cause

III. Issues Concerning Toxicologic Evidence

A. Collection of evidence

B. Testing of evidence

FDFCDC 121 IV. Plea Negotiation and Sentencing Issues

A. Base offense levels

B. Stipulations in plea agreements

C. Grounds for departures and/or variances

D. Restitution

E. Victims’ rights

F. Good samaritan laws

FDFCDC 122 Litigation Strategies In Opioid Cases

Frank Dunham Federal Criminal Defense Conference April 7, 2017

Aaron Cook, CJA, W.D. Va. Andrea Harris, AFPD, W.D. Va. Lisa Lorish, AFPD, W.D. Va.

I. Distribution Resulting in Death or Serious Bodily Injury The most commonly used drug statutes include the following: 21 USC § 841 Prohibits the manufacture and distribution of, and possession with intent to distribute, controlled substances. 21 USC § 846 Prohibits attempts and conspiracies to manufacture, distribute or possess with intent to distribute controlled substances 21 USC § 952 Prohibits the importation of controlled substances 21 USC § 953 Prohibits the exportation of controlled substances 21 USC § 963 Prohibits attempts and conspiracies to import/export controlled substances. The penalty structures for these and other drug crimes are set out in 21 USC § 841(b) and 21 U.S.C. § 960(b). The minimum and maximum statutory penalties are driven by the type and quantity of the drug involved, but may be increased if the offense involved death or serious bodily injury. If death or serious bodily injury results from the use of the substance, the following enhanced penalties apply: Statutory Provisions Penalty Enhanced Penalty for Death/SBI 21 USC § 841(b)(1)(A) . 10 years to Life . 20 years to Life . With 851, 20-Life . With 851, Life 21 USC § 960(b)(1) 21 USC § 841(b)(1)(B) . 5-40 years . 20 years to Life . With 851, 10-Life . With 851, Life 21 USC § 960(b)(2) 21 USC § 841(b)(1)(C) . 0-20 years . 20 years to Life . With 851, 0-30 years . With 851, Life 21 USC § 960(b)(3) 21 USC § 841(b)(1)(E) . 0-10 years . 0-15 years . With 851, 0-20 years . With 851, 0-30 years

1 FDFCDC 123  The sentence enhancement is an element of the offense that must be alleged in the Indictment. Death or Serious Bodily Injury “…if death or serious bodily injury results from the use of such substance…”

 Serious bodily injury o Defined in 21 U.S.C. 802(25) o Means bodily injury which involves: . A substantial risk of death; . Protracted and obvious disfigurement; OR . Protracted loss or impairment of the function of a bodily member, organ, or mental faculty.  Results from is not defined o Relates to Causation Burrage v. United States, 134 S.Ct. 881 (2014) Granted certiorari to address two questions related to the enhanced penalty provisions of 21 U.S.C. § 841(b)(1)(C) for distribution of drugs when “death results” from such distribution. Questions Presented: 1. Whether a person can be convicted for distribution of heroin causing death when the heroin that was distributed “contributed to” death by “mixed drug intoxication” but was not the sole cause of death? 2. Whether the crime of distribution of drugs causing death under 21 USC § 841 is a strict liability crime, without a foreseeability or proximate cause requirement? First question addresses Actual Cause. Second question addresses Legal/Proximate Cause.  “The law has long considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause.” Burrage, 134 S.Ct. at 887.  “When a crime requires ‘not merely conduct but also a specified result of conduct,’ a defendant generally may not be convicted unless his conduct is ‘both (1) the actual cause, and (2) the ‘legal’ cause (often called ‘proximate cause’) of the result.” Id.  These two categories roughly coincide with the two questions on which certiorari was granted. Actual Cause = But/For Cause “[A]t least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 USC § 841[] unless such use is a but-for cause of the death or injury.” Burrage v. United States, 134 S.Ct. 881, 892 (2014)

2 FDFCDC 124  There must be proof “that the harm would not have occurred” in the absence of – that is, but for – the defendant’s conduct

 This is the minimum requirement for a finding of causation.

 Contributing to the death is not enough.

 The language Congress enacted requires death to “result from” use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed

 Court did not address the rare scenario where multiple sufficient causes independently, but concurrently, produce a result. (i.e., A fatally stabs B at the same time X independently shoots B in the head)

Legal Cause = Proximate Cause  Supreme Court declined to answer the second question presented in Burrage  Supreme Court did discuss proximate cause in Paroline v. United States, 134 S.Ct. 1710 (2014)  Only some actual causes – those with a “sufficient connection to the result” – are proximate causes.  Proximate cause is often explained in terms of foreseeability or the scope of the risk created by the predicate conduct  See United States v. Hatfield, 591 F.3d 945 (7th Cir. 2010) for extended discussion of causation.  United States v. Patterson, 38 F.3d 139 (4th Cir. 1994) o Held that plain language of § 841(b)(1)(C) does not require a finding that the death resulting from the distribution was a reasonably foreseeable event o Statute puts drugs dealers and users on notice that their sentence will be enhanced if people die from using the drugs they distribute th o Affirmed most recently in United States v. Alvarado, 816 F.3d 242 (4 Cir. 2016)  United States v. Burkholder, 816 F.3d 607 (10th Cir. 2016) o Question: whether jury must find that the victim’s death was a foreseeable result of the defendant’s drug-trafficking offense? o 2:1 decision holding that Section 841 required only proof of but-for causation and did not require showing of proximate causation (or foreseeability of the result). o Dissent: not convinced that “results from” language unambiguously reveals Congress’ intent to “forgo a proximate-cause requirement” and impose strict liability on criminal defendants  The Fourth Circuit and many other circuits have interpreted identical “death results” language in other statutes to require not just actual causation but proximate causation

3 FDFCDC 125 A few examples: o th o United States v. Harris, 701 F.2d 1095 (4 Cir. 1983) . 18 USC § 241 (conspiracy to violate civil rights) (“if death results” provision requires actual causation and proximate causation – that is, “death foreseeably and naturally results from the rights-violating conduct”) United States v. Hayes, 589 F.2d 811, 821 (5th Cir. 1979)(18 USC § 242) o st o United States v. Marler, 756 F.2d 206, 215-216 (1 Cir. 1985) o United States v. Martinez, 588 F.3d 301, 317-18 (6h Cir. 2009)(18 USC § 1347) United States v. Spinney, 795 F.2d 1410, 1415-16 (9th Cir. 1986) o th o United States v. Woodley, 136 F.3d 1399, 1405-06 (10 Cir. 1998)

II. Toxicology Toxicology = Study of adverse effects of chemicals on living organisms. Forensic Toxicology = involves related disciplines to assist in detection and interpretation of drugs and poisons in medicolegal death investigations and/or human performance issues Evidence Collection  Specimens collected by either medical examiner, coroner, or forensic pathologist  For drug-related case: blood, urine, vitreous humor, gastric contents, bile, liver, hair o Blood – Specimen of choice for detecting, quantifying and interpreting drugs and other toxicant concentrations . If hospital treatment before death, blood samples taken soon after admission and immediately before death should be investigated – treatment in hospital can change results . Post-mortem blood can change concentrations and degree of decomposition can interfere with testing o Urine – Not always available for post-mortem testing . Do not directly correlate to drug effects at time of sample collection because of time it takes to break down and eliminate drugs or metabolites in the urine . Presence in urine is a sign substance was in blood at earlier time (within a few days) and somewhat processed (detecting metabolites gives proof drug ingested) o Liver – Primary solid tissue for use in post-mortem toxicology because it is where body metabolizes most drugs and toxicants . Drugs can be concentrated in liver and found even where no levels in the blood o Vitreous Humor – Clear gel-like substance that fills the eye . Commonly analyzed for BAC . Concentrations are higher than blood by about 20% on average because lags behind blood by 1-2 hours

4 FDFCDC 126 . If level higher than blood level suggests excreting phase vs. absorptive phase . Used to determine ethanol levels and whether 6-acetylmorphine present (metabolite of heroin)  Where was analysis done – hospital or Department of Forensic Science

Table 2. Drugs included in routine post‐mortem toxicology

Substance(s) Examples

Alcohol Chemically known as ethanol. Test also includes methanol and acetone1.

Analgesics Paracetamol (acetaminophen), tramadol 9(ConZip™, Ryzolt™, Ultracet, Ultram in the U.S.), Salicylates (aspirin)

Antidepressants Tricyclics (e.g., imipramine, amitriptyline) ; SSRIs (fluoxetine [Prozac®], sertraline [Zoloft®])

Antihistamines doxylamine, chlorpheniramine, diphenhydramine (sedating)

Antipsychotics old and newer generation including depot injections (subcutaneous or intramuscular injections of long‐‐‐lasting medication); Haloperidol; Risperidone

Benzodiazepines all available (diazepam [Valium®], alprazolam [Xanax®]; and “Z” drugs zolpidem (Ambien®, Ambien CR, Intermezzo®, Stilnox®, and Sublinox®), zopiclone (Imovane®, Zimovane), zaleplon (Sonata® and Starnoc)

Cannabis tetrahydrocannabinol (THC) (Marijuana, pot) and its metabolites

Cardiovascular Diltiazem (calcium channelblockers), drugs Disopyramide (names Norpace® and Rythmodan®), propranolol (beta blocker)

Cocaine cocaine and its metabolites

Narcotic codeine, methadone, pethidine, morphine, hydrocodone, analgesics oxycodone, fentanyl

Stimulants Amphetamine, methamphetamine, MDMA (ecstasy), pseudoephedrine, fenfluramine, phentermine, caffeine

[1] Acetone can derive from abnormal body metabolism in diabetic ketoacidotic states.

5 FDFCDC 127 Table 3. Drugs not routinely included in death investigation toxicology screens

Anti‐‐‐convulsants (some only) lamotrigine (Lamictal®), valproate, phenytoin

Barbiturates Phenobarbital, butalbital, many other prescribed (or otherwise obtained) Barbs

Designer drugs synthetic cathinones and synthetic cannabinoids (‘bath salts’, ‘plant food’, ‘spice’, etc.)

Digoxin used to treat arrhythmias and heart failure

GHB gamma‐‐‐hydroxybutyrate(“Juice", "Liquid Ecstasy", Fantasy)

LSD hallucinogen rarely seen in coroners cases

Environmental carbon monoxide; cyanide; pesticides; herbicides ; metals Toxicants

 Immunoassay techniques: Most commonly used drug screening test, antibodies detect reaction with specific substance; Four interpretations possible: o True-positive: test correctly detects presence of drug o False-positive: test incorrectly detects presence of drug that is absent o True-negative: test correctly confirms absence of drug o False-negative: test fails to detect presence of drug that is present  Metabolites and Analogs o Metabolite is the product of a drug metabolizing in the living body o Analog is a designer drug that is structurally or functionally the same as a controlled substance, designed to mimic the pharmacological effects of the original drug while avoiding detection in standard drug tests o No quantitative measurements for new synthetic analogues until measures can be developed o Different analogues have different potency levels  Fentanyl o Acts as CNS depressant like morphine or other opiates o Respiration slows to the point where brain does not receive enough oxygen and body shuts down o Typical therapeutic level for fentanyl = .001 - .005mg/L but .003+ can be considered lethal o No way to tell difference between prescription fentanyl and illicit fentanyl through tox screen o Fentanyl metabolites: o Fentanyl analogues: o Toxicologist cannot tell if fentanyl mixed with acetylfentanyl

6 FDFCDC 128  Heroin o Produced from morphine (which is a naturally occurring opiate extracted from the seedpod of the poppy plant) o Heroin is metabolized by the body into morphine and 6-Acetylmorphine o Heroin is processed into 6-Acetylmorphine quickly – often as soon as 15-20 minutes after use o 6-Acetylmorphine has a very short half-life and results in a very short detection time in urine (2-8 hours at the most sensitive cutoff limits) o In contrast, morphine is usually detectable in the urine up to approximately 24 hours after heroin use o Because of 6-Acetylmorphine is rapidly eliminated in the body, its absence in blood or urine does not exclude heroin use, but its presence confirms it  Effect of multiple drugs in system o One drug can affect tolerance level for another drug o Different physiological effects Resources:  Disposition of Toxic Drugs and Chemicals in Man, 9th Ed., Randall C. Baselt  Post-Morten Clinical Pharmacology, R.E. Ferner, British Journal of Clinical Pharmacology (included with materials)

III. Sentencing Issues/Plea Negotiations

 Base Offense Level Guideline Base Offense Applies If: Level 2D1.1(a)(1) 43  Conviction under 21 USC § 841(b)(1)(A)-(C) or 21 USC § 960(b)(1)-(3)  Death or Serious Bodily Injury Resulted From Use  One or More Prior Convictions For Similar Offense 2D1.1(a)(2) 38  Conviction under 21 USC § 841(b)(1)(A)-(C) or 21 USC § 960(b)(1)-(3)  Death or Serious Bodily Injury Resulted From Use 2D1.1(a)(3) 30  Convicted under 21 USC § 841(b)(1)(E) or 21 USC 960(b)(5)  Death or Serious Bodily Injury Resulted From Use  One or More Prior Convictions For Similar Offense 2D1.1(a)(4) 26  Convicted under 21 USC § 841(b)(1)(E) or 21 USC 960(b)(5)  Death or Serious Bodily Injury Resulted From Use

NOTE: USSG § 1B1.2(a): Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction.

7 FDFCDC 129  Offense of conviction

o The Commission’s view is that the “offense of conviction” language limits the application of these offense levels to cases where death or serious bodily injury is proved beyond a reasonable doubt by plea or to the factfinder. See USSG App. C, amend. 123 (effective Nov. 1, 1989) (“[t]he purpose of this amendment [limiting the application of §§ 2D1.1(a)(1), (a)(2)] is to provide that subsections (a)(1) and (a)(2) apply only in the case of a conviction under circumstances specified in the statutes cited”)1

o Before Alleyne v. United States, 133 S.Ct. 2151 (2013), the circuit courts applied Apprendi to solve the issue if the “offense of conviction” language limited the application of these enhancements to such cases or whether they may be applied after mere judicial fact finding. This resulted in a circuit split.

o After Alleyne, the Seventh Circuit held that “§2D1.1(a)(2) applies only when a resulting death (or serious bodily injury) was an element of the crime of conviction, proven beyond a reasonable doubt or admitted by the defendant. United States v. Lawler, 818 F.3d 281 (7th Cir. 2006).

 Serious bodily injury

o Defined in Comment 1(L) of USSG § 1B1.1.

o Means injury involving: . Extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; . Requiring medical intervention such as surgery, hospitalization, or physical rehabilitation. . Also deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or any similar offense under state law.

o This definition differs from the statutory definition under 21 U.S.C. § 802(25). . Similar: both apply to protracted impairment of the function of a bodily member, organ, or mental faculty

1 Amendment 727 added § 2D1.1(a)(3)-(4) as a response to the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, Pub.L. 110-425. “[T]he amendment addresses the sentencing enhancement added by the Act, which applies when the offense involved a Schedule III controlled substance and death or serious bodily injury resulted from the use of such substance.” The Amendment effective date was November 1, 2009. 8 FDFCDC 130 . Different: substantial risk of death vs. extreme physical pain or requiring medical intervention

o Courts have not addressed whether the “serious bodily injury” enhancement under USSG § 2D1.1(a)(1)-(4) is triggered by the guidelines definition or the statutory definition.

o However, one court noted in an unpublished opinion that the Supreme Court has held a statutory definition should be given preference over a general guideline definition. See United States v. Alvararez, 165 F.App’x 707, 708-09 (11th Cir. 2006) (citing United States v. LaBonte, 520 U.S. 751, 757 (1997), and Stinson v. United States, 508 U.S. 36, 38 (1993), for the propositions that the guidelines “must bow to the specific directives of Congress,” and “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute,” respectively).

 Plea Agreements

o Stipulation – USSG § 1B1.2(c)

. A plea agreement (written or made orally on the record) containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s). . Better than conviction of greater offense because the defendant can at least argue for a sentence below the guideline range (and below 20 years) based on the § 3553(a) factors.

o Standards for Acceptance of Plea Agreements – USSG § 6B1.2 . Court may accept agreement under Rule 11(c)(1)(B) or (C) if the court is satisfied either that: . The recommended/agreed sentence is within the applicable guideline range OR . (A) the recommended/agreed sentence is outside the applicable guideline range for justifiable reasons AND . (B) those reasons are set forth with specificity in the statement of reasons form

 Grounds for Departure (Policy Statement) – USSG § 5K2.1 Death

o If death resulted, the court may increase the sentence above the authorized guideline range.

9 FDFCDC 131 o Loss of life does not automatically suggest a sentence at or near the statutory maximum.

o The sentencing judge must give consideration to matters that normally would distinguish among levels of homicide, such as the defendant’s state of mind and the degree of planning or preparation.

o Other appropriate factors are whether multiple deaths resulted, and the means by which life was taken.

o The extent of the increase should depend on the dangerousness of the defendant’s conduct, the extent to which death or serious bodily injury was intended or knowingly risked, and the extent to which the offense level for the offense of conviction, as determined by the Chapter Two guidelines, already reflects the risk of personal injury.

o For example, a substantial increase may be appropriate if the death was intended or knowingly risked or if the underlying offense was one for which base offense levels do not reflect an allowance for the risk of personal injury, such as fraud.

th o United States v. Nossan, 647 F.3d 822, 824 (8 Cir. 2011) (5K2.1 departure to 60- month sentence where guideline range was 10-16 months was appropriate because Nossan set into motion a chain of events that risked serious injury or death, even when an intent to harm is entirely absent and the defendant was not directly responsible for the death)

th o United States v. Ihegworo, 959 F.2d 26 (5 Cir. 1992) (District court departed upward based on 5K2.1 because a preponderance of the evidence clearly related Love’s overdose death to the heroin the defendant was distributing)

o United States v. Russow, 2015 WL 1057513 (D.Conn. 2015) (Having found that the heroin that defendant sold to RP knowing of his addiction and his intended use by injection using defendant’s “pens,” resulted in RP’s death, Court concluded an above-guideline sentence warranted under 5K2.1).

 Restitution

o 18 USC § 3663, the Victim and Witness Protection Act (VWPA), is the restitution statute applicable to offenders convicted of offenses under the Controlled Substances Act

10 FDFCDC 132 o 18 USC 3663(a)(2) defines “victim” to mean a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.

o However, after a listing of eligible drug offenses covered by this discretionary restitution statute, Subsection (a)(1)(A) specifically provides that “in no case shall a participant in an offense under such sections [of the Controlled Substances Act] be considered a victim of such offense under this section”

o US Probation Office in WDVA does not treat the recipients of drugs as victims due restitution

o But See Cases Below With Very Narrow Reading of “Participant”:

. United States v. Mousseau, 517 F.3d 1044, 1048 (8th Cir. 2008) (For the prohibition in Section 3661(a)(1) to apply, the defendant must be convicted of one of the offenses enumerated in the statute, and the person to whom restitution is due must have committed the same offense. Mousseau was convicted of providing a controlled substance to a minor – an offense the minor did not commit, and, thus, was not a participant of).

. United States v. Nossan, 647 F.3d 822 (8th Cir. 2011) (Recipient of drug distributed by Nossan did not commit the offense of distributing a controlled substance – though he may have been guilty of other crimes, e.g., drug possession – and his estate was eligible for restitution)

o Note: There is no corresponding proscription in the mandatory restitution statute (18 USC § 3663A)

. Seems likely to be an inadvertent omission . United States v. Reifler, 446 F.3d 65, 127 (7th Cir. 2006) (An order entered under the MVRA that had the effect of treating coconspirators as victims and thereby requiring restitution was a fundamental error adversely reflecting on the public reputation of the judicial proceedings)

 Crime Victims’ Rights Act

o Is the person (or estate of person) who overdosed a victim entitled to make Victim Impact Statement?

o 18 USC 3771 is the Crime Victims’ Rights Act

11 FDFCDC 133 . Right to be reasonably heard at bond, plea, sentencing, or parole hearing (a)(4) . Right to full and timely restitution (a)(6) . Right to be informed of any plea bargain or deterred prosecution agreement (a)(9)

o CVRA defines “crime victim” to mean a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. 18 USC § 3771(e)(2).

. Does not explicitly contain the same exception found in 18 USC 3663 for participants in the offense

 Good Samaritan Laws

o No federal Good Samaritan Law

o Virginia Code 18.2-251.03 (Safe Reporting of Overdoses)

. Became effective July 1, 2015 . Provides an affirmative defense to prosecution of an individual for unlawful possession of a controlled substance if such individual seeks or obtains emergency medical attention for himself or another person if either is experiencing an overdose by contemporaneously reporting such overdose to fire, EMS, police, or 911. . Does not apply to distributor of drug . Does not apply to the person overdosing if he or she is not the one who sought or obtained the medical services for him or herself. Broadus v. Commonwealth, -- S.E.2d --, 67 Va. App. 265 (Va. App. 2017)

o DC Code § 7-403 (Seeking Health Care for an Overdose Victim)

. Effective: March 19, 2013 . Provides that unlawful possession of a controlled substance will not be considered a crime or serve as the basis for revoking or modifying a person’s supervision for a person who seeks health care for him or herself or for another person if reasonable belief that the person is experiencing an overdose . Does not apply to distributors of the drugs . Does contain a mitigation provision that states that seeking health care for someone having an overdose may be considered by the court as a mitigating factor in any criminal prosecution or sentencing for a drug

12 FDFCDC 134 offense other than the possession offenses to which the statute primarily applies o Maryland Code, Criminal Procedure, § 1-210 . Effective: March 14, 2016 . Provides immunity from prosecution to person reporting medical emergency and the person experiencing medical emergency for certain possession offenses . Does not apply to distributors

13 FDFCDC 135 British Journal of Clinical DOI:10.1111/j.1365-2125.2008.03231.x Pharmacology

Correspondence Professor R. E. Ferner, West Midlands Post-mortem clinical Centre for Adverse Drug Reactions, City Hospital, Birmingham B187QH, UK. Tel: +44 0 121 554 3801 pharmacology Fax: +4401215075407 E-mail: [email protected] R. E. Ferner ------Keywords West Midlands Centre for Adverse Drug Reactions, City Hospital and Department of Clinical forensic pharmacology, autopsy, post Pharmacology,The Medical School, University of Birmingham, Birmingham, UK mortem, drug-blood-level, tissue distribution, redistribution ------Received 16 February 2008 Accepted 19 May 2008 Published OnlineEarly 15 July 2008

Clinical pharmacology assumes that deductions can be made about the concentrations of drugs from a knowledge of the pharmacokinetic parameters in an individual; and that the effects are related to the measured concentration. Post-mortem changes render the assumptions of clinical pharmacology largely invalid, and make the interpretation of concentrations measured in post-mortem samples difﬁcult or impossible. Qualitative tests can show the presence of substances that were not present in life, and can fail to detect substances that led to death. Quantitative analysis is subject to error in itself, and because post-mortem concentrations vary in largely unpredictable ways with the site and time of sampling, as a result of the phenomenon of post-mortem redistribution. Consequently, compilations of ‘lethal concentrations’ are misleading. There is a lack of adequate studies of the true relationship between fatal events and the concentrations that can be measured subsequently, but without such studies, clinical pharmacologists and others should be wary of interpreting post-mortem measurements.

Introduction Search strategy

Clinical pharmacology is primarily concerned with two The information used to assemble this review comes from aspects of the interaction between drugs and humans: a systematic search of EMBASE 1974 to June 2007 for the pharmacodynamics and pharmacokinetics. This review keywords AUTOPSY#.W..DE. and DRUG-BLOOD-LEVEL.DE. considers what can be established of the pharmacody- and Medline 1950 to June 2007 for AUTOPSY#.W..MJ. namics and pharmacokinetics in life from data acquired and TISSUE-DISTRIBUTION.DE. Additionally, both were after death. It is important in forensic pharmacology [1] to searched for the text words (postmortem OR (post ADJ be aware of the extent to which post-mortem samples can mortem)) AND (redistribution). Reference lists of retrieved be interpreted on the basis of the known pharmacology of articles and a personal collection of references were also a drug. Pharmacological assumptions of what can be scanned. deduced about the concentrations of drugs from knowledge of the pharmacokinetic parameters in an individual, and how the effects are related to the measured concen- Pharmacodynamics tration that may be valid during life are often invalid after death. Extrapolation can therefore lead to erroneous, or at In forensic pharmacology, the pharmacodynamic ques- least contentious, conclusions. A recent example is the tion asked of a clinical pharmacologist when a person has argument over likely effects of intravenous thiopental, died is usually ‘did a drug cause or contribute to the administered as part of a lethal cocktail in the execution of death?’. The answer is likely to come from a combined prisoners, where the effects are deduced from thiopental analysis of the medical history, including the reported cir- concentrations measured post mortem [2, 3]. Previous cumstances and manner of death, a consideration of the reviews have examined aspects of the problem of inter- likely effects of some presumed dose or measured con- preting post-mortem data, often from a specialist view- centration of drug, the role of other drugs and possible point [4–10]. Here the general problems are systematically pharmacokinetic factors, and the exclusion of other reviewed. potential causes. FDFCDC 136 430 / Br J Clin Pharmacol / 66:4 / 430–443 © 2008 The Author Journal compilation © 2008 Blackwell Publishing Ltd Post-mortem clinical pharmacology

The medical history to establish that the poison caused death,nor is a negative result sufficient to establish that it did not. A typical medical history may go some way towards demonstrating a causal role for a drug. At the least, the medical history needs to be consistent with the presumed mecha- False-positive results nism of decease and the pathological findings, and the Tests can give erroneously positive results in two ways. dose and the corresponding effect need to be plausible. First, false-positive test results, where the test shows the For example, if a naive (non-tolerant) heroin user were presence of a substance that is absent, can arise from observed to lapse into coma and then seen to suffer a unsatisfactory or non-specific tests. For example, radioim- respiratory arrest within a few minutes of a large intrave- munoassays for digoxin can be positive for endogenous nous dose of heroin, then most would postulate a causal digoxin-like substances that accumulate in renal failure, in link. It might be difficult, on the other hand, to accept a the absence of any administration of digoxin [13].A variant pathologist’s assertion that a person died from an anaphy- of this is the measurement of two closely related sub- lactic reaction to an injected medicine if the reaction stances, where only one is toxic. One example is the analy- occurred hours after the injection. sis of stereo-isomers that are chemically identical but have In considering the role of a drug in causing death, the different biological properties. R-methadone, for example, analysis of events runs from the fact of death, through is a potent opioid,whereas S-methadone is almost inactive suspicion of a pharmacological cause, to the reconciliation but not distinguished from it in standard analyses [14]. of the post-mortem pharmacological data with the Secondly, results can truly indicate the presence of a medical history. The sequence of analysis is unfamiliar to substance in a sample taken from a dead body even the clinical pharmacologist, who may be more used to though the substance was not present in the body before administering a specified dose and observing the effect,or, death. This can arise by generation of toxic substances alternatively, may take a history and perform an examina- after death, or by contamination. The presence of sub- tion, then make tests in order to diagnose drug-induced stances generated after death is a particular difficulty in disease. Since bias, and sometimes deception, can influ- the assessment of ethanol concentrations [15–17], e.g. in ence the history obtained after death, accounts docu- the victims of road traffic accidents [18] and in aircrew [19]. mented before death are especially important. A Swiss Gamma-hydroxybutyrate, a rapidly acting anaesthetic study has suggested that the medical history plays an drug of abuse, can also be generated post mortem [20]. important role in interpreting post-mortem data in about Contamination after burial has been advanced as an 70% of cases [11]. explanation for the presence of substances such as arsenic and lead that can be present in soil, or in burial containers [21]. Contamination during sampling, e.g. by taking it into a lithium-heparin tube [22], or during analysis, are also Qualitative post-mortem analysis important possibilities. Even in life, qualitative analysis of hair for drugs can be misleading unless steps are taken to A qualitative test is any test that indicates the presence of avoid surface contamination [23]. a substance, without providing accurate information as to A safeguard in qualitative analysis is to use more than the amount. The mere presence of a drug, or its metabo- one analytical method. Clear recommendations exist lites, in post-mortem tissue can be sufficient to reinforce to reduce the dangers of sample contamination [24]. suspicions of the link between the drug and the death.The Cautious interpretation is still required. conviction in 2000 of the English General Practitioner Dr Harold Shipman for the murder of 15 of his patients rested in part on the sudden demise of a group of otherwise False-negative results healthy patients, for the most part elderly women, and in False-negative tests are possible. In the celebrated 19th part on the detection of morphine in skeletal muscle from century case of Dr William Palmer, a man called John the exhumed bodies of a subset of them, in the absence of Parsons Cook died from convulsions, consistent with evidence that they had been prescribed morphine or been strychnine poisoning. The prosecution toxicologist, Dr in the habit of taking opiates [12].The post-mortem detec- Alfred Swaine Taylor, failed to find strychnine in Cook’s tion of morphine must have played a significant part in body, but argued that this was a false-negative result due securing a conviction, but was only one of many pieces of to the poor analytical method [25].Palmer was convicted;it evidence. As Pounder has pointed out [12], there was suf- is less likely that this would happen today. Negative results ficiently strong circumstantial evidence that, for six of the can sometimes be assumed because standard screening convictions, no pathological or toxicological evidence was tests have shown nothing suspicious.This may be unwise if adduced: those victims had been cremated. relevant specific tests have not been conducted.The initial However, a positive result from a qualitative test for the failure to detect polonium in samples from the Russian presence of a poisonous substance is not sufficient of itself Alexander Litvinenko, murdered in London in 2006, may FDFCDC 137 Br J Clin Pharmacol / 66:4 / 431 R. E. Ferner

Table 1 Approximate pharmacokinetic values in life and of central : peripheral blood concentrations measured post mortem for a series of drugs of forensic interest

Reference [64, 65] [64, 65] [64, 65] [64, 65] [64, 65] [8] -1 Vdist (l kg Plasma protein Octanol : water partition Log octanol : water partition Central : peripheral Name bodyweight) binding (%) coefﬁcient coefﬁcient pKa concentration ratio

Amitriptyline 14.5 95 87 000 4.94 9.4 3.1 Chloroquine 200 60 42 600 4.63 8.4 3 Chlorpromazine 7 98.5 2 500 3.40 9.3 4 Clomipramine 14.5 97.25 158 500 5.20 1.9 Clonazepam 3 65 260 2.41 1.5 2 Clozapine 1.6 95 1 700 3.23 7.6 2.8 Codeine 3.6 16 4 0.60 8.2 1.8 Desipramine 22.5 90 25 1.40 10.2 2.4 Dextroamphetamine 5 32.5 63 1.80 9.9 2 Diazepam 1.5 97 500 2.70 3.3 1.6 Dosulepin 45 85 630 2.80 3 Flurazepam 4.5 97 200 2.30 8.2 3 Haloperidol 23 92 1 700 3.23 8.3 3.6 Imipramine 21 85 320 2.51 9.5 2 Ketamine 4 35 1 250 3.10 7.5 1.6 Meperidine 4.2 45 500 2.70 8.7 2.1 Midazolam 1.25 96 20 000 4.30 6.2 4 Morphine 2.25 30 0.8 -0.10 8 2.2 Nortriptyline 26.5 92.5 50 1.70 9.7 2.4 Oxazepam 1.35 96.5 160 2.20 1.7 1.9 Oxycodone 3 5 0.70 8.9 3.1 Paroxetine 15.5 95 8 900 3.95 9.9 2.7 Pentazocine 3.75 62.5 100 2.00 8.5 2 Phenytoin 0.6 91.5 320 2.51 8.3 1.4 Promethazine 13.5 84.5 800 2.90 9.1 1.6 Propoxyphene 16 75 16 000 4.20 6.3 3.5 Temazepam 1.4 86 155 2.19 1.6 1.6 Thiopental 2.5 65 710 2.85 7.6 1.9 Trazodone 92 1 600 3.20 6.7 1.6 Triazolam 1.3 17.5 263 2.42 5 2.8 Venlafaxine 7.5 27 2.7 0.43 1.6 Zolpidem 0.54 92.5 7 000 3.85 6.2 2.1

The extent of post-mortem distribution is measured by the central : peripheral concentration ratio, taken from reference [8]. The volume of distribution is taken from [64]. The regression coefficient of central : peripheral concentration ratio on volume of distribution, r = 0.247, P > 0.1. The octanol : water partition coefficient is taken from [65] The regression coefficient of central : peripheral concentration ratio on octanol : water partition coefficient, r = 0.035, P > 0.1. have stemmed from a false belief that radioactive sub- Even if a true-positive test shows the presence of a stances were absent because standard tests for ionizing substance that was present during life, a qualitative test radiation were negative [26]. is not of itself sufficient to imply drug-taking. Misleading Another important cause of negative post-mortem results can be due to contaminants from innocent sources: tests is the disappearance of the drug before analysis.This small amounts of opiate can be detected in the urine of can occur during life,and in some circumstances is likely or persons who have eaten poppy-seed cake [29]. inevitable. For example, if a person dies from hypostatic There are, therefore, serious difficulties in interpreting pneumonia days or weeks after an insult that has caused qualitative tests on post-mortem samples: both false- irreversible brain damage, the agent responsible will not positive and false-negative results can occur. generally be found. Paracetamol causes delayed hepatic toxicity that can be fatal. By the time death occurs, paracetamol cannot be detected in blood (although urinary Quantitative post-mortem analysis metabolites may be detected). Paraquat concentration falls rapidly after overdose [27]. Paraquat causes pulmo- One of the central tenets of clinical pharmacology is that nary fibrosis and a sometimes slow and agonising death the pharmacological action of a drug is determined by its many weeks after ingestion,when poison will no longer be concentration at the site of action. Most drugs used in found in blood samples, although it may be found in modern therapy have a therapeutic index sufficiently high tissues [28]. that they are efficacious at concentrations lower than FDFCDC 138 432 / 66:4 / Br J Clin Pharmacol Post-mortem clinical pharmacology those capable of producing toxicity [30].The concentration from patients who were taking the relevant drugs but died of a drug in the ‘sampling compartment’ is assumed to from other causes. relate to the concentration at the site of action, and that concentration in turn is expected to relate to the dose. The lethal dose However, even at steady-state in life, the relationships In animal studies, death will occur at lower concentrations between dose and plasma concentration, and between of a poison in some animals than in others, and this is the plasma concentration and therapeutic or toxic effect, can basis for experimental determination of the LD50, the dose vary widely from subject to subject.This is true even when that is lethal to 50% of a cohort of animals. The fiducial samples are taken at specified times after dosing, so as to limits (upper and lower confidence bounds) around the reduce variability due to differences in absorption. It is LD50 are a measure of the dispersion of susceptibility to the common for drug analyses to give results whose accuracy, poison in the relevant population. No such data exist for measured by difference from nominal values of control human subjects, and so neither lethal doses (nor lethal samples, and whose precision, measured by differences in concentrations) measured before death, nor their disper- repeated samples, may have standard deviations of >10% sion, are known.There are reliable data on human poison- of mean values.Analytical specificity can also be an import- ing in life for a few drugs, such as paracetamol [32], where ant issue. It is sufficiently important with immunoassays there has been careful study, where there is reasonable that results require confirmation.The sensitivity of an assay assurance that samples are taken after complete absorp- also needs to be sufficiently great that concentrations tion, and where either the outcome or a reliable surrogate likely to have caused harm can be detected. (liver enzyme elevation) could be observed. There are a For most fatalities, assumptions of steady-state before number of counter-examples, such as iron salts and possi- death are invalid, so that greater allowance needs to be bly aspirin, where the severity of poisoning is poorly cor- made for variability within and between subjects.The‘sam- related with the concentration of the substance in blood pling compartment’ is itself usually different after death even during life. from in life.For example,almost all post-mortem analysis is performed on whole blood. Most drug assays in samples Extrapolation from post-mortem concentrations from living patients are made on plasma or serum, and to ante-mortem concentrations whole blood is used uncommonly. After death, and in the There are many uncertainties in back-extrapolation from most favourable circumstances, it is possible to take a concentration found post mortem to the concentra- samples of whole blood flowing from femoral veins: this tion before death, and from the putative ante-mortem sample is thought to be least susceptible to post-mortem concentration to its possible effects. Nevertheless, change. Failing this, blood can be collected from the heart attempts have been made to establish acute lethal con- or another central site. For many drugs, there are marked centrations [33–36], even if there is some recognition that differences between post-mortem concentrations in this is not straightforward [36, 37]. The difficulties are samples obtained from peripheral and central sites apparent from the quoted ranges for lethal concentrations (Table 1), as discussed below [8]. of, for example, 3,4-methylenedioxymetamphetamine Even in life, the concentration ratio between whole (‘ecstasy’) (40–8500 mgl-1) and methadone (60– blood and plasma varies from drug to drug. It is 0.5 for 3100 mgl-1) in modern data [38]. Milroy and Forrest found phenytoin, and 2 for maprotiline [31]. After death, the values for the lethal concentration of methadone mea- composition of body fluids can change, and so does fluid sured in post-mortem blood variously quoted as 220– distribution. Sedimentation of red cells under gravity 3040; 200–4500; 320–3980; 1000–2000; and 100–2500 accounts for hypostatic staining,which is a visible manifes- (intravenously) or 100–2600 mgl-1 (orally); the range in tation of post-mortem change. In addition, death entrains their own series of 111 cases was 84–2700 mgl-1 [39]. In 25 cell lysis, and putrefaction by endogenous and exogenous cases where they were able to sample blood both from an bacteria. Variable degrees of sedimentation, coagulation, arm and from a leg, it is possible to compute the median haemolysis, putrefaction and contamination with tissue difference as 72 mmol l-1,with an interquartile range for the fluids can render quantitative analysis of blood unhelpful, difference of 20–200 mmol l-1. and of blood-tinged fluids collected from body cavities meaningless. Importance of tolerance Other body fluids and tissues, including stomach For some important drugs, including many oncological content,urine,liver,muscle and fat,are commonly sampled drugs and opioids, there is little or no separation between at autopsy. Quantitative analysis has been used to therapeutic and toxic concentrations. The opioids repre- compare concentrations in suspected cases with concen- sent one class of drugs where receptor downregulation trations in previous cases attributed to poisoning. This during chronic therapy shifts concentration–response approach is potentially misleading in the absence of curves,so that much higher concentrations are required to knowledge of the changes that can occur under different produce the same effect, whether beneficial or harmful. conditions after death and without comparative material The same phenomenon is seen with GABA-agonists, FDFCDC 139 Br J Clin Pharmacol / 66:4 / 433 R. E. Ferner including ethanol. Although the lethal concentration of has fully justified its description by Pounder and Jones as ethanol has sometimes been reported as ‘above 500 milli- ‘a toxicological nightmare’ [7]. grams per 100 millilitres’ [40], a patient was still talking Several reviews have considered the factors that can when her serum ethanol concentration was >1500 mg influence the concentration of drug measured post- per 100 ml, three times this ‘fatal’ value [41]. Jones and mortem [7, 10, 46–49]. They can broadly be divided into Holmgren examined data on 693 deaths from acute two processes.First, the drug may remain unaltered, but its alcohol poisoning, and found a Gaussian distribution of distribution in the body changes as the result of transfer post-mortem concentrations,with a mean value of 356 mg across barriers that maintain a concentration gradient in per 100 ml [42]. The 95% confidence interval around the life, notably cellular membranes.The integrity of the barri- mean (calculated from the quoted standard deviation) was ers is lost after death. This leads to flux of drug from (or, between 185 and 526 mg per 100 ml.The lethal concentrat- more rarely, to) the gut, the solid organs, the bladder and ion was three times higher in some subjects than in others. the alveoli. It is also possible for drug to be gained or lost The corollary is that all interpretation of the pharmacody- from the system, e.g. by evaporation or absorption from namic effects based on concentrations should be placed in the environment. Secondly, the drug can be altered as the the context of the variations in concentration–response result of physicochemical change in the post-mortem relationships and the degree of tolerance. environment. For example, as pH changes, so the state Another major concern regarding lethal concentra- of ionization of the drug may change. The drug itself tions is that commonly more than one drug is implicated in can undergo chemical change. Morphine, for example, can a fatality.Possible pharmacokinetic and pharmacodynamic be measured as free or total drug, the latter including interactions between a drug and ethanol or one drug and both the conjugated metabolites morphine-3-glucuronide another make for still greater difficulties in interpretation. and morphine-6-glucuronide. Post-mortem hydrolysis increases apparent free morphine concentrations [50]. Site-related and time-related differences in post-mortem concentrations Transfer across barriers Holt and Benstead observed in 1975 that three post- Drugs taken orally have to be absorbed from the gut into mortem samples of blood from different sites in one body the bloodstream before distribution around the body. contained different concentrations of digoxin, and specu- Absorption in life depends on the transfer of drug across lated that drug may have been redistributed in the body the intestinal wall, which can be the result of active trans- after death [43]. By 1980, Rouzioux had described in detail port or the consequence of physicochemical diffusion.The two types of post-mortem change that could affect blood active processes cease after death, and the rate and extent concentrations between the moment of death and the of diffusion depend on the permeability of the gut wall, time of autopsy [44]. These were degradation of the toxic which increases after death. For example, in life ethanol is substance, e.g. by microbial or enzymatic action, as can absorbed from the small intestine rather than the stomach. happen with cyanides;and modification of the equilibrium However, after death the stomach wall becomes perme- between blood and tissues. Both exudation from tissue able to ethanol, which then diffuses into adjacent tissue and cellular lysis could contribute to this change in equi- and blood vessels [51, 52]. Such diffusion through previ- librium, and Rouzioux reported analyses in 10 cases. Eight ously impermeable barriers may be most important for cases were marked by blood concentrations, measured in small nonpolar molecules [47]. post-mortem samples from the left ventricle,between 2.58 Drug already filtered from the bloodstream into the and 17.66 higher than during life,whereas two,both due to urine can diffuse from the bladder into femoral venous carbon monoxide poisoning, had concentrations after blood by similar mechanisms:in a single autopsy case,con- death about 25–30% lower than in life [44]. centrations of diphenhydramine and dihydrocodeine were The term ‘post-mortem redistribution’ was used by an order of magnitude higher in the femoral venous blood Koren and MacLeod in the title for their 1985 paper on than in the cardiac blood,and a further order of magnitude changes in digoxin concentration after death, based on higher in the urine than in the femoral venous blood. The experiments in the rat [45]. They administered radio- authors hypothesized that death occurred after a long iodine-labelled digoxin to rats 2 h before death. Concen- period of unconsciousness during which high concentra- trations measured at death and 12 h aftewards showed a tions of drug accumulated in the bladder [53]. mean heart : blood ratio of 10.6 and 0.9, respectively.They In life, neither drug in the gut nor drug in the urine concluded that ante-mortem digoxin concentrations cannot would form part of the pharmacologically active body be reliably inferred on the basis of high post-mortem levels of burden. If drug is transferred from the gut or the urine into the drug alone (emphasis added). the blood sampled after death, the blood concentrations In the 30 years following the observations of Holt and will be erroneous. Benstead,a wide range of potential difficulties in interpret- When 3,4-methylenedioxymetamphetamine (‘ecstasy’) ing post-mortem concentrations has been uncovered, and is given intravenously to rabbits, post-mortem concentra- the phenomenon of post-mortem redistribution of drugs tions in heart blood rise primarily as a result of redistribu- FDFCDC 140 434 / 66:4 / Br J Clin Pharmacol Post-mortem clinical pharmacology tion from lung tissue. The patterns of this post-mortem clearly the existence of lethal concentrations before death redistribution of ecstasy depend on whether it is infused cannot be inferred from finding them post mortem. into the stomach, the trachea or the oesophagus. Concen- Some evidence for preferential distribution during life trations in heart blood rise markedly after ‘supradiaphrag- can remain post mortem. Mangin and Kintz examined the matic’ administration, whereas concentrations in gastric post-mortem concentrations of morphine in human axil- contents remain low unless drug is introduced directly into lary, head and pubic hair, finding the highest concentra- the stomach [54, 55]. These results show that high post- tions in the last of these [61]. Rather discouragingly, there mortem concentrations can come from absorption across appears to be no correlation in life between the dose of the stomach wall; by redistribution from the lungs of drug opiates administered and the resulting concentration in already absorbed before death; and from absorption of hair [62]. drug in the trachea or oesophagus, as a result of vomiting or reflux. Studies on cadavers support this last view [56]. Influence of volume of distribution The volume of distribution is a measure of the extent to Redistribution of absorbed drug which a drug is distributed outside the bloodstream in life, An important part of classical pharmacokinetics is an and can be interpreted as the ratio of the total amount of assessment of the extent to which a drug is distributed drug absorbed into the body to the amount of drug in one uniformly or non-uniformly in the body. For example, unit volume of blood (or plasma). The density of the body heparin, absorbed into the bloodstream, remains localized is approximately 1 kg l-1, so a drug that is uniformly dis- in the bloodstream. By contrast, almost the entire body tributed in a person weighing 70 kg will have a volume load of drugs such as amiodarone and chloroquine lies of distribution of approximately 70 l. Very high in vivo outside the bloodstream. Where the distribution is non- volumes of distribution, implying preferential localization uniform before death,the possibility arises after death that outside the bloodstream, have been proposed as a marker the distribution will become more uniform simply because of potential post-mortem redistribution [7, 8, 63]. there will be flow down any concentration gradient from One determinant of volume of distribution of a drug is high concentration to lower concentration (and,more gen- its lipid solubility,and that can be established by determin- erally, along a gradient of chemical potential) [57]. Organs ing the octanol : water partition coefficient, which mea- in which drug is concentrated are loci of high concentra- sures the extent to which the drug enters the hydrophobic tion, and concentrations in surrounding tissue can be dis- octanol phase (Table 1).There are compilations of values in proportionately affected. The concentration measured in standard texts [64, 65]. For example, sertraline is extremely blood, in these circumstances, depends strongly on the hydrophobic, with an octanol : partition coefficient of sampling site.For example, digoxin is preferentially distrib- 195 000, and has a volume of distribution of 20 l kg-1 (i.e. uted to cardiac muscle.After death,concentrations in heart 1400 l in a 70-kg person); aspirin, which is strongly hydro- blood are substantially higher than those in femoral philic, with an octanol : water partition coefficient of 0.08, venous blood, presumably because of redistribution from has a volume of distribution of 0.2 l kg-1. There are, cardiac muscle into heart blood [43]. however, many deviations from a simple relationship Redistribution from the lungs, which act as a reservoir between octanol : water partition coefficient and volume for basic drugs that are also lipophilic [58], such as amitrip- of distribution.Venlafaxine,with a volume of distribution of tyline, chlorpromazine and methadone, is also important. 7.5lkg-1, has a partition coefficient of 2.7; warfarin, whose Movement of drug from the lungs into the left ventricle volume of distribution is 0.14 l kg-1, has a partition coeffi- and aorta after death is rapid and results in a significant cient of 400. A partial explanation for this is that some increase in drug concentrations in samples from these two entities, such as lithium, are subject to specific, active pro- sites [47, 59]. cesses that remove them from the bloodstream. Others, Where energy-dependent processes maintain concen- such as warfarin, are preferentially bound to sites outside tration gradients during life, major post-mortem shifts are the circulating blood. A further complicating factor is that, expected. For example, the ratio of potassium concentra- for many drugs, a high proportion of the fraction in circu- tion inside and outside cells in life is about 40 : 1, main- lating blood is bound to plasma proteins,whereas for a few tained by Na+-K+ ATPase. After death, when there is no drugs, plasma protein-binding is negligible. Chlorprom- further renewal of the energy supply and when the integ- azine is >95% protein-bound, whereas atenolol is <5% rity of cell membranes is lost, cell walls become freely protein-bound. For highly protein-bound drugs, the permeable to potassium ions,and the concentration inside plasma proteins act as a reservoir of inactive, but circulat- and outside cells tends to equilibrate. In consequence, ing, drug. serum potassium concentration rises from about The distribution of protein between the circulating 3.5 mmol l-1 prior to death to 18 mmol l-1 at 1 h, and blood and interstitial fluid depends on the maintenance of 25 mmol l-1 at 24 h after death [60]. Concentrations above a semipermeable membrane. Changes in membrane per- approximately 8 mmol l-1 in life are commonly fatal, but meability after death allow proteins such as albumin to FDFCDC 141 Br J Clin Pharmacol / 66:4 / 435 R. E. Ferner leak out of the bloodstream into tissues, reducing the con- compared with ante-mortem serum established ratios of centration of albumin-bound drug in blood [66]. 11.7 for dosulepin, 8.3 for propoxyphene, 3.9 for amitrip- The effect of pH changes on the state of ionization of tyline, 2.6 for methadone, 1.9 for propranolol, 1.5 for parac- an ionizable drug can be deduced from the pKa, i.e. the pH etamol and 1.0 for salicylate in single cases [69]. The post- at which the ratio of unprotonated to protonated drug mortem : ante-mortem ratio was 1.7 in a man who took is unity (Table 1). The benzodiazepines clonazepam, an unintentional overdose of diltiazem [70]. Flecainide, oxazepam and temazepam all have pKa values <2 – the digoxin and sotalol concentrations, but not amiodarone unprotonated form predominates at physiological pH; concentrations, rose after death in an 18-year-old man whereas desipramine,colchicine and propofol all have pKa with heart disease who suffered a fatal arrhythmia [71]. values >10 – the protonated form predominates at physi- Animal experiments have been helpful, but extrapola- ological pH. If the protonated form of a drug is ionized, tion to humans is hampered by differences in both then the more acidic the medium, the more ionized drug anatomy and pharmacology. Studies in which animals will be present; and vice versa if it is the unprotonated form have been given substantial doses of drugs and then been that is ionized. examined post mortem confirm that concentrations vary Because changes in pH lead to changes in the extent of by site and by time for: citalopram [72, 73],‘ecstasy’[54, 55], ionization, and because ionized drug is hydrophilic, they fluoxetine [74], morphine [75, 76] and paracetamol [8, 77]. also affect octanol : water partition coefficient and protein Crandall and coworkers used swine to examine the rela- binding.For example,the partition coefficient of fluoxetine tionship between ante-mortem and post-mortem concen- between octanol and water is 11 000,but between octanol trations of morphine after acute intravenous overdose and aqueous buffer at pH 7.4 is 66 [65]. Blood pH falls after [78]. Prior to death, mean left ventricular and femoral death, and also sometimes before death, e.g. in patients venous concentrations were similar for free and for total who undergo prolonged resuscitation, or who die from morphine. After death, both ratios were altered. The mean respiratory or renal failure. central : peripheral (C: P) blood ratio for free morphine was For all these reasons, the physiochemical properties of approximately 0.5 after 30 min, but 1.0 after 120 min; total drugs, which determine their distribution, will not remain morphine C: P ratio exceeded 1.0 at five time-points after constant after death,and calculations based on pharmaco- death, and was <1.0 at four time-points, perhaps because kinetic parameters determined in life are bound to be the study did not examine paired samples, and there may inaccurate. The practice, at one time common in forensic have been substantial interanimal variability. Since con- work, of calculating the ‘body-burden’ of a drug from the centration in blood from central sites and peripheral sites post-mortem concentration and the average volume of is, or is assumed to be, equal during life, C: P different from distribution, determined in vivo, should therefore be aban- unity suggests that changes have taken place after death. doned. For example, redistribution of drug stored in liver, or transfer from the stomach, are likely to influence central con- Relationship between concentrations centrations more than peripheral concentrations, and lead measured before and after death to high C: P ratios. The corollary – that a ratio of unity is a The relationship between ante-mortem and post-mortem sign that the concentration measured post-mortem is drug concentrations is clearly critical in making reasoned equal to the concentration immediately before death – judgements of the importance of quantitative analyses. does not have to be true. There are, however, few human studies that provide direct Strandberg et al. found post-mortem concentrations of evidence.The work of Rouzioux, already referred to, deter- morphine in rats that died within 10 min of diamorphine mined the ratios between post-mortem and ante-mortem overdose to be nearly 10 times higher in lung tissue than in concentration in four cases of imipramine poisoning to be heart blood, although differences were much less in rats 4.85, 1.39, 9.94 and 7.60; and in two cases of chloroquine that survived for some hours after overdose [79]. Mor- poisoning to be 17.66 and 14.6 (the timing of the samples phine : metabolite ratios were variable.Large differences in varied considerably among patients) [44]. A later study ratios of major morphine metabolites have anyway been found post-mortem femoral blood : ante-mortem serum reported in living patients, with variation up to 40-fold concentrations of amitriptyline in poisoned patients to be between individuals [80]. Although differences between 3.6, 4.3 and 12; and of imipramine to be 3.0 and 6.0 [6]. acute and chronic users, and in those with or without renal For chloroquine, the ratio between ante-mortem serum impairment,might be expected,ranges for all these groups concentration and post-mortem peripheral blood concen- overlapped. It is difficult to see, therefore, that deductions tration was 0.7, whereas the ratio between post-mortem from morphine metabolite ratios in post-mortem samples heart blood and peripheral blood concentrations was 2.9 can be made with any certainty. [67]. Elliott found ratios to be between 1.1 and 6.6 for 3,4- Animal experiments have also been made to examine methylenedioxymetamphetamine (‘ecstasy’) and 1.5 and the effects of lipophilicity in determining redistribution of 13.3 for its metabolite 3,4-methylenedioxyamphetamine three b-adrenoceptor antagonists in rabbits [81]. For some [68]. A study in which post-mortem peripheral blood was drugs, such as moclobemide, animal experiments suggest FDFCDC 142 436 / 66:4 / Br J Clin Pharmacol Post-mortem clinical pharmacology that little redistribution takes place [82]. Such experiments an indication of the upper limit for divergence between usually consider only a small number of animals,doses and ante-mortem and post-mortem samples. Likewise, there is time-points, and this, taken with the anatomical and phar- no obvious relationship between the C : P ratio and the macological differences between species, makes it difficult octanol : water partition coefficient (Figure 2). to extrapolate the results to human cases.

Can the extent of post-mortem redistribution Making deduction from be deduced from the properties of a drug? post-mortem drug concentrations Leikin and Watson’s review [8] tabulates approximate C : P ratios, where central concentrations were measured in The general problem is to decide whether a post-mortem heart blood. The authors, following Hilberg [83], suggest concentration indicates that the deceased died from the that drugs with a volume of distribution >3lkg-1 ‘are can- action of the drug, or whether the drug was present inci- didates for redistribution...’.Theauthors do not indicate dentally. The problem is most straightforward where only uncertainty around the estimates of C : P ratio, which is one drug is involved and its post-mortem redistribution is undoubtedly very large. For example, a study of post- negligible,so that concentrations are similar if measured in mortem concentrations of the opiate analgesic fentanyl samples taken from different sites or at different times. For has reported heart and femoral blood concentrations in 11 most, if not all drugs, that is unlikely.The difﬁculties can be cases. The C : P ratio ranged from 0.89 to 3.2 (mean 1.6) eased by careful sampling [31, 85], even though intrinsic [84]. However, the approximate ﬁgures can be used as a uncertainties in post-mortem analysis mean that compli- basis for testing this and other suggested relationships ance with the recommendations does not guarantee reli- between the pharmacokinetic properties of a drug and its ability. Early compilations of ‘fatal’ concentrations [33–36] propensity to undergo post-mortem redistribution. did not specify sampling site, even though it was well rec- The relationship between C : P ratio and volume of dis- ognized that for some drugs concentrations in solid organs tribution for the drugs listed by Leikin and Watson is weak differed greatly from those in ‘blood’ [86]. Druid and (Figure 1): although most drugs that undergo redistribu- Holmgren addressed this by compiling a table of post- tion, as judged by a C : P ratio >3.0, have large volumes of mortem concentrations of femoral venous blood,based on distribution, there are several outlying drugs with large their set of Swedish data [87].An elaboration,quoting 10th volumes of distribution that appear to undergo little or and 90th centiles of femoral blood concentrations of anti- no redistribution. Other authors have already noted that depressant drugs in fatal cases, has been published [88]. volume of distribution cannot be the sole determinant of Good information on the rate of change of drug con- the extent of redistribution [81].The C : P ratio exceeds the centration with time could help, but there is likely to be volume of distribution in l kg-1 for 15/33 drugs for which substantial variability due to uncontrolled factors such as data were available, so the volume of distribution is not temperature and microbial action. Even if there is little or

6 6 5 5 4 4

3 3 ratio ratio 2 2

1 1

0 concentration peripheral Central: 0 Central: peripheral concentration 35302520151050 -1 0 1 2 3 4 5 6

Volume of distribution (Vdist) Log octanol : water partition coefficent

Figure 1 Figure 2 The relationship between the extent of post-mortem redistribution and The relationship between the extent of post-mortem redistribution and the volume of distribution. The extent of post-mortem distribution is log octanol : water partition coefficient.The extent of post-mortem distri- measured by the central : peripheral concentration ratio, taken from ref- bution is measured by the central : peripheral concentration ratio, taken erence [8]. The volume of distribution is taken from [64]. The regression from reference [8]. The octanol : water partition coefficient is taken from coefficient, r = 0.247, P > 0.1 [65]. The regression coefficient, r = 0.035, P > 0.1 FDFCDC 143 Br J Clin Pharmacol / 66:4 / 437 R. E. Ferner

Response (%) 100

Log concentration 0 LD50 Concentration-response curve in life

†

Death

Effect of site Effect of time

Some unknown transform that depends on sampling site, time site x time from decease, person, and other factors

Survival (%) 0

Concentration 100

FC50

“Fatal concentration” (FC50) based on the post- mortem concentration

Figure 3 A scheme of the relationship between ante-mortem dose–response curve for a lethal drug and the deﬁnition of lethal concentration by reference to the observed post-mortem concentration

FDFCDC 144 438 / 66:4 / Br J Clin Pharmacol Post-mortem clinical pharmacology

(A)

Measure concentration in the sampling compartment

Use observed dose- response curves to determine effects Use Vdist to determine body load (amount in body = concentration in sample x Vdist)

(B)

Measure concentration in the sampling compartment ?

Effect of observed concentration generally unknown Concentration depends on time and site Vdist changes and is unknown ?

Figure 4 (a) Deductions made from concentrations of drug measured during life. If the relationship between concentration (or dose) and effect is known, then in some circumstances the likely effect can be deduced.Even in life,there are difﬁculties with drugs,such as ethanol,where responses are very variable;opiates, whose dose–response curve is substantially altered by repeated dosing; and penicillin, where a subset of patients is hypersusceptible to adverse effects. (b) Deductions made from concentrations of drug measured after death. It is now impossible to establish the administered dose, and the effect of a measured concentration cannot be deduced from dose–response curves determined in living subjects

no post-mortem redistribution, and there is a large series answers to be reliable, a series of deaths in which the drug of cases in which a single drug has been taken, the prob- is detected has to be considered, and each death assigned lems of deciding whether the measured concentration to the DID or DID-not group without knowledge of the indicates a drug-induced death (DID) or not (DID-not) are measured concentrations. That assignment, independent formidable. At its simplest, the problem is to define a con- of concentration, is likely to be difficult. It might be pos- centration that, if found post mortem, indicates that a sible if there were a characteristic and specific clinical lethal concentration was present before death (Figure 3). picture, and if other competing causes of death could be Although the relationship between dose and response can excluded. Since, for example, most suicides are unob- be clear ante mortem (Figure 4a), any such relationship is served, the clinical picture in an individual death is often likely to be clouded post mortem (Figure 4b). For the unknown. Since apparently healthy subjects may have FDFCDC 145 Br J Clin Pharmacol / 66:4 / 439 R. E. Ferner

0.30 A DID-not B

0.25

0.20 DID

0.15

0.10 Proportion of patients

0.05

0.00 0.00 2.00 4.00 6.00 8.00 10.00 12.00 14.00 16.00 Drug concentration (arbitrary units)

Figure 5 The proportion of patients having a speciﬁed post-mortem concentration of some hypothetical drug, and for two groups of subjects: those with drug- induced death (DID); and those with death not due to drugs (DID-not), allowing for likely variability between individuals. The two distributions may differ in shape, and may be skewed, but it is very likely that they will overlap considerably: those in whom concentration A was found may have died from the effects of the drug, whereas those in whom concentration B was found may not. There is no clear ‘lethal concentration’

hidden causes of sudden death, notably cardiac arrhyth- before death. The definition of lethal concentrations is mia [89], the exclusion of competing may itself be difficult. extremely difficult. For rigour, it is necessary to assign a Even if the deceased can be assigned to the DID and series of deaths to the DID and DID-not categories inde- DID-not groups, it is very unlikely that drug concentrations pendent of the drug concentrations, and examine how the in the two groups will be clearly separated (Figure 5). The concentrations differ between the two groups. Usually overlap will partly result from biological variability in sub- there will be a broad overlap, and a correspondingly wide jects and partly from sampling and analytical variability range of uncertainty in deciding whether a concentration that will blur the distinction between samples of suppos- found after death caused the death. Post-mortem concen- edly different concentrations. The biological variability trations have been over-interpreted in the past, and good may be extreme if the death is not due to poisoning, but, evidence should be required before ‘lethal concentrations’ for example, to immunological effects, especially anaphyl- are defined in the future. axis: a concentration of penicillin that is much smaller than the conventional therapeutic concentration will nonethe- The author is very grateful to Professor Robin Braithwaite, Dr less be lethal in a patient with severe Type I hypersensitiv- Robert Flanagan, Professor Robert Forrest, Dr Steven Karch ity. By contrast, doses of opioids that would be lethal in and Dr Nigel Langford for stimulating discussions and helpful unexposed subjects are happily tolerated by heroin suggestions during the preparation of this manuscript. addicts whose receptors are downregulated by habitual exposure. Pharmacogenetic variation in the sensitivity of subjects to adverse effects may also prove to be important [90]. REFERENCES 1 Ferner RE. Forensic Pharmacology: Medicines, Mayhem, and Conclusion Malpractice. Oxford: Oxford University Press, 1996. 2 Koniaris LG, Zimmers TA, Lubarsky DA, Sheldon JP. There is no reliable or obvious connection between con- Inadequate anaesthesia in lethal injection for execution. centrations measured in life and subsequent to death.Con- Lancet 2005; 365: 1412–14. sequently, concentrations measured after death cannot 3 Heath MJS, Stanski DR, Pounder DJ. Inadequate anaesthesia generally be interpreted to yield concentrations present in lethal injection for execution. Lancet 2005; 366: 1073–4. FDFCDC 146 440 / 66:4 / Br J Clin Pharmacol Post-mortem clinical pharmacology

4 Drummer OH, Gerostamoulos J. Postmortem drug analysis: drug concentration and hair porosity in contamination and analytical and toxicological aspects. Ther Drug Monit 2002; decontamination. J Anal Toxicol 2005; 29: 319–26. 24: 199–209. 24 Flanagan RJ, Connally G, Evans JM. Analytical toxicology. 5 Flanagan RJ, Connally G. Interpretation of analytical Guidelines for sample collection postmortem. Toxicol Rev toxicology results in life and at postmortem. Toxicol Rev 2005; 24: 63–7. 2005; 24: 51–6. 25 Lathome Browne G, Stewart C. Reports of Trials for Murder 6 Hilberg T, Rogde S, Morland J. Postmortem drug by Poisoning: by Prussic Acid, Strychnia, Antimony, Arsenic, redistribution – human cases related to results in and Aconitia. London: Stevens and Sons, 1883. experimental animals. J Forensic Sci 1999; 44: 3–9. 26 Harrison J, Leggett R, Lloyd D, Phipps A, Scott B. 7 Pounder DJ, Jones GR. Post-mortem drug redistribution – a Polonium-210 as a poison. J Radiol Prot 2007; 27: 17–40. toxicological nightmare. Forensic Sci Int 1990; 45: 253–63. 27 Proudfoot AT, Stewart MS, Levitt T, Widdop B. Paraquat 8 Leikin J, Watson W. Post-mortem toxicology: what the dead poisoning – significance of plasma-paraquat concentrations. can and cannot tell us. J Toxicol Clin Toxicol 2003; 41: 47–56. Lancet 1979; 2: 330–2. 9 Richardson T. Pitfalls in forensic toxicology. Ann Clin 28 Conradi SE, Olanoff LS, Dawson J. Fatality due to paraquat Biochem 2000; 37: 20–44. intoxication: confirmation by postmortem tissue analysis. 10 Yarema MC, Becker CE. Key concepts in postmortem drug Am J Clin Pathol 1983; 80: 771–6. redistribution. Clin Toxicol 2005; 43: 235–41. 29 Meadway C, George S, Braithwaite R. Opiate concentrations 11 Harding-Pink D, Fryc O. Assessing death by poisoning: does following the ingestion of poppy seed products – evidence the medical history help? Med Sci Law 1991; 31: 69–75. for ‘the poppy seed’ defence. Forensic Sci Int 1998; 96: 29–38. 12 Pounder DJ. The case of Dr Shipman. Am J Forensic Med 30 Aronson JK, Ferner RE. Joining the DoTS: new approach to Pathol 2003; 24: 219–26. classifying adverse drug reactions. BMJ 2003; 327: 1222–5. 13 Bentur Y, Tsipiniuk A, Taitelman U. Postmortem digoxin-like 31 Skopp G. Preanalytic aspects in postmortem toxicology. immunoreactive substances (DLIS) in patients not treated Forensic Sci Int 2004; 142: 75–100. with digoxin. Hum Exp Toxicol 1999; 18: 67–70. 32 Prescott LF, Sutherland GR, Park J, Smith IJ, Proudfoot AT. 14 Karch S, Stephens BG. Toxicology and pathology of deaths Cysteamine, methionine, and penicillamine in the treatment related to methadone: retrospective review. West J Med of paracetamol poisoning. Lancet 1976; 2: 109–13. 2000; 172: 11–14. 33 McBay AJ. Toxicological findings in fatal poisonings. 15 Anonymous. Post-mortem alcohol. Lancet 1975; 1: 1229. Clin Chem 1973; 19: 361–5. 16 Kugelberg FC, Jones AW. Interpreting results of ethanol 34 Paterson SC. Drug levels found in cases of fatal analysis in postmortem specimens: a review of the literature. self-poisoning. Forensic Sci Int 1985; 27: 129–33. Forensic Sci Int 2007; 165: 10–29. 35 Stead AH, Moffat AC. A collection of therapeutic, toxic and 17 Petkovic SM, Simic MA, Vujic DN. Postmortem production of fatal blood drug concentrations in man. Hum Toxicol 1983; 3: ethanol in different tissues under controlled experimental 437–64. conditions. J Forensic Sci 2005; 50: 204–8. 36 Winek CL. Tabulation of therapeutic, toxic, and lethal 18 Vuori E, Renkonen O-V, Lindbohm R. Validity of post mortem concentrations of drugs and chemicals in blood. Clin Chem blood alcohol values. Lancet 762: 761–2. 1976; 22: 832–6. 19 Canfield DV, Kupiec T, Huffine E. Postmortem alcohol 37 Wennig R. Threshold values in toxicology – useful or not? production in fatal aircraft accidents. J Forensic Sci 1993; 38: Forensic Sci Int 2000; 113: 323–30. 914–17. 38 Gable RS. Comparison of acute lethal toxicity of commonly 20 Berankova K, Mutnanska K, Balikova M. abused psychoactive substances. Addiction 2004; 99: Gamma-hydroxybutyric acid stability and formation in 686–96. blood and urine. Forensic Sci Int 2006; 161: 158–62. 39 Milroy CM, Forrest ARW. Methadone deaths: a toxicological 21 Carvalho ML, Rodrigues Ferreira FE, Neves MCM, Casaca C, analysis. J Clin Pathol 2000; 53: 277–81. Cunha AS, Marques JP, Amorim P, Marques AF, Marques MI. Arsenic detection in nineteenth century Portuguese King 40 Ley N. Drink Driving Law & Practice. London: Sweet & post mortem tissues by energy-dispersive x-ray fluorescence Maxwell, 1993; 7–30. spectrometry. X-Ray Spectrometry 2002; 31: 305–9. 41 Johnson RA, Noll EC, MacMillan R. Survival after a serum 1 22 Lee DC, Klachko MN. Falsely elevated lithium levels in ethanol concentration of 1 /2 %. Lancet 1982; 2: 1394. plasma samples obtained in lithium containing tubes. 42 Jones AW, Holmgren P. Comparison of blood-ethanol J Toxicol Clin Toxicol 1996; 34: 467–9. concentration in deaths attributed to acute alcohol 23 Schaffer M, Hill V, Cairns T. Hair analysis for cocaine: the poisoning and chronic alcoholism. J Forensic Sci 2003; 48: requirement for effective wash procedures and effects of 874–9. FDFCDC 147 Br J Clin Pharmacol / 66:4 / 441 R. E. Ferner

43 Holt DW, Benstead JG. Postmortem assay of digoxin by 61 Mangin P, Kintz P. Variability of opiates concentrations in radioimmunoassay. J Clin Pathol 1975; 28: 483–6. human hair according to their anatomical origin: head, axillary and pubic regions. Forensic Sci Int 1993; 63: 77–83. 44 Rouzioux JM. Résultats des analyses toxicologiques lors des autopsies médico-légales: intérêt – difficultés 62 Goulle JP, Noyon J, Bietry F, Patricot B, Roumajon A, d’interprétation. Acta Med Leg Soc (Liege) 1980; 30: 25–42. Bouige D. Hair opiates during pain treatment. Forensic Sci Int 1997; 84: 137–44. 45 Koren G, MacLeod SM. Postmortem redistribution of digoxin in rats. J Forensic Sci 1985; 30: 92–6. 63 Hilberg T, Ripel A, Slordal L, Bjorneboe A, Morland J. The 46 Drummer O. Post-mortem toxicology. Forensic Sci Int 2007; extent of postmortem drug redistribution in a rat model. 165: 199–203. J Forensic Sci 1999; 44: 956–62. 47 Pélissier-Alicot A-L, Gaulier JM, Champsaur P, Marquet P. 64 Dollery CT. Therapeutic Drugs, 2nd edn. Edinburgh: Churchill Mechanisms underlying postmortem redistribution of Livingstone, 1999. drugs: a review. J Anal Toxicol 2003; 27: 533–44. 65 Galichet LY, Moffat AC, Osselton MD, Widdop B. Clarke’s 48 Prouty RW, Anderson WH. The forensic science implications Analysis of Drugs and Poisons, Electronic edition. London: of site and temporal influences on postmortem blood-drug Pharmaceutical Press, 2006. concentrations. J Forensic Sci 1990; 35: 243–70. 66 Oehmichen M, Gencic M. Postmortal diffusion of plasma 49 Dalpé-Scott M, Degouffe M, Garbutt D, Drost M. A albumin in rat brain. Z Rechtsmed 1980; 84: 113–23. comparison of drug concentrations in postmortem cardiac 67 Keller T, Schneider A, Lamprecht R, Aderjan R, and peripheral blood in 320 cases. Can Soc Forensic Sci J Tutsch-Bauer E, Kisser W. Fatal chloroquine intoxication. 1995; 28: 113–21. Forensic Sci Int 1998; 96: 21–8. 50 Skopp G, Potsch L, Klingmann A, Mattern R. Stability of morphine, morphine-3-glucuronide, and 68 Elliott S, Burgess V. Clinical urinalysis of drugs and alcohol in morphine-6-glucuronide in fresh blood and plasma and instances of suspected surreptitious administration of postmortem blood samples. J Anal Toxicol 2001; 25: 2–7. spiked drinks. Sci Justice 2005; 45: 129–34. 51 Pounder DJ, Smith DRW. Postmortem diffusion of alcohol 69 Cook DS, Braithwaite RA, Hale KA. Estimating antemortem from the stomach. Am J Forensic Med Pathol 1995; 16: drug concentrations from postmortem blood samples: the 89–96. influence of postmortem redistribution. J Clin Pathol 2000; 53: 282–5. 52 Pounder DJ, Fuke C, Cox DE, Smith D, Kuroda N. Postmortem diffusion of drugs from gastric residue: an experimental 70 Cantrell FL, Williams SR. Fatal unintentional overdose of study. Am J Forensic Med Pathol 1996; 17: 1–7. diltiazem with antemortem and postmortem values. Clin Toxicol 2005; 43: 587–8. 53 Moriya F, Hashimoto Y. Postmortem diffusion of drugs from the bladder into femoral venous blood. Forensic Sci Int 71 Sullivan JJ, McCarthy PT, Wren C. Differences in amiodarone, 2001; 123: 248–53. digoxin, flecainide and sotalol concentrations between antemortem serum and femoral postmortem blood. Hum 54 De Letter EA, Belpaire FM, Clauwaert KM, Lambert WE, Exp Toxicol 1995; 14: 605–8. van Bocxlaer JF, Piette MHA. Post-mortem redistribution of 3,4-methylenedioxymethamphetamine (MDMA,‘ecstasy’) in 72 Kugelberg FC, Kingsbeck M, Carlsson Br, Druid H. Early-phase the rabbit. Part II: post-mortem infusion in trachea or postmortem redistribution of the enantiomers of citalopram stomach. Int J Legal Med 2002; 116: 225–32. and its demethylated metabolites in rats. J Anal Toxicol 2005; 29: 223–8. 55 De Letter EA, Clauwaert KM, Belpaire FM, Lambert WE, van Bocxlaer JF, Piette MHA. Post-mortem redistribution of 73 Kugelberg FC, Druid H, Carlsson BR, Ahlner J, Bengtsson F. 3,4-methylenedioxymethamphetamine (MDMA,‘ecstasy’) in Postmortem redistribution of the enantiomers of citalopram the rabbit. Part I: experimental approach after in vivo and its metabolites: an experimental study in rats. J Anal intravenous infusion. Int J Legal Med 2002; 116: 216–24. Toxicol 2004; 28: 631–7. 56 Pounder DJ, Yonemitsu K. Postmortem absorption of drugs 74 Pohland RC, Bernhard NR. Postmortem serum and tissue and ethanol from aspirated vomitus – an experimental redistribution of fluoxetine and norfluoxetine in dogs model. Forensic Sci Int 1991; 51: 189–95. following oral administration of fluoxetine hydrochloride 57 King LA. Ferguson’s principle and the prediction of fatal Prozac. J Forensic Sci 1997; 42: 812–16. drug levels in blood. Hum Toxicol 1985; 4: 273–8. 75 Crandall CS, Kerrigan S, Agnero B, LaValley J, Zumwalt R, 58 Boer F. Drug handling by the lungs. Br J Anaesth 2003; 91: McKinney PE. The influence of site of collection on 50–60. postmortem morphine concentrations in heroin overdose victims. J Forensic Sci 2006; 51: 413–20. 59 Hilberg T, Morland J, Bjorneboe A. Postmortem release of amitriptyline from the lungs; a mechanism of postmortem 76 Sawyer WR, Forney RB. Postmortem disposition of morphine drug redistribution. Forensic Sci Int 1994; 64: 47–55. in rats. Forensic Sci Int 1988; 38: 259–73. 60 Jetter W. Postmortem biochemical changes. J Forensic Sci 77 Gomez HF, McKinney P, Phillips S, Roberts DV, Brent J, 1959; 4: 330–41. Watson WA. Postmortem acetaminophen pharmacokinetics: FDFCDC 148 442 / 66:4 / Br J Clin Pharmacol Post-mortem clinical pharmacology

an experimental study of site and time-dependent 84 Anderson DT, Muto JJ. Duragesic transdermal patch: concentration changes. J Forensic Sci 1995; 40: 980–2. postmortem tissue distribution of fentanyl in 25 cases. 78 Crandall CS, Kerrigan S, Aguero RL, LaValley J, McKinney P. J Anal Toxicol 2000; 24: 627–34. The inﬂuence of collection site and methods on the 85 Forrest ARW. Obtaining samples at postmortem postmortem morphine concentrations in a porcine model. examination for toxicological and biochemical analyses. J Anal Toxicol 2006; 30: 651–8. J Clin Pathol 1993; 46: 292–6. 79 Strandberg JJ, Kugelberg FC, Alkass K, Gustavsson A, Zahlsen K, Spigset O, Druid H. Toxicological analysis in rats 86 McBay AJ. Propoxyphene and norpropoxyphene subjected to heroin and morphine overdose. Toxicol Lett concentrations in blood and tissues in cases of fatal 2006; 166: 11–18. overdose. Clin Chem 1976; 22: 1319–21. 80 Faura CC, Collins SL, Moore RA, McQuay HJ. Systematic 87 Druid H, Holmgren P. A compilation of fatal and control review of factors affecting the ratios of morphine and its concentrations of drugs in postmortem femoral blood. major metabolites. Pain 1998; 74: 43–53. J Forensic Sci 1997; 42: 79–87.

81 Pélissier-Alicot A-L, Gaulier J-M, Dupuis C, Feuerstein M, 88 Reis M, Aamo T, Ahlner J, Druid H. Reference concentrations Leonetti G, Lachâtre G, Marquet P. Post-mortem of antidepressants. A compilation of postmortem and redistribution of three beta-blockers in the rabbit. Int J Legal therapeutic levels. J Anal Toxicol 2007; 31: 254–64. Med 2006; 120: 226–32. 82 Rodda KE, Drummer OH. The redistribution of selected 89 Karch SB. When the simple becomes complex – problems in psychiatric drugs in post-mortem cases. Forensic Sci Int postmortem toxicology. J Toxicol Clin Toxicol 2007; 45: 335. 2006; 164: 235–9. 90 Gasche Y, Daali Y, Fathi M, Chiappe A, Cottini S, Dayer P, 83 Hilberg T, Rogde S, Morland J. Postmortem drug Desmeules J. Codeine intoxication associated with ultrarapid redistribution – human cases related to results in CYP2D6 metabolism. N Engl J Med 2004; 351: 2827–31. experimental animals. J Forensic Sci 1999; 44: 3–9.

FDFCDC 149 Br J Clin Pharmacol / 66:4 / 443 THIS PAGE INTENTIONALLY LEFT BLANK

FDFCDC 150 OBTAINING EXPERT AND OTHER LITIGATION SUPPORT SERVICES

Hon. Robert S. Ballou Larry M. Dash Frederick T. Heblich

NOTES

FDFCDC 151 3/24/2017

USING SERVICE PROVIDERS

WDVA/EDVA CJA Training April 7, 2017 Presented By The Honorable Robert Ballou, Larry Dash and Fred Heblich

3/24/2017 1

WHAT WE WILL COVER TODAY

What are Service Providers and How to Use them Effectively Rules Under the CJA How to best request them How to get them paid

3/24/2017 2

WHAT IS A SERVICE PROVIDER Paraleg Investig ator

Investigators Paralegals Other Experts

3/24/2017 3

FDFCDC 152 1 3/24/2017

HOW CAN THEY HELP YOU, THE CJA ATTORNEY

• Help with full review of discovery in large discovery cases • • A force multiplier • • Use to help develop appropriate trial theory and/or mitigation

3/24/2017 4

SERVICE PROVIDERS-HOW TO USE THEM

Expert services are underutilized by CJA attorneys in both the EDVA and WDVA

Excluding interpreters—5% of cases Not being requested

3/24/2017 5

TYPES OF SERVICE PROVIDERS

Investigative and Support Services • Investigators • Paralegals Scientific or Technical Experts • Mental Health Professionals • Computer Experts • Cell Phone Experts 3/24/2017 6

FDFCDC 153 2 3/24/2017

TYPES OF EXPERTS

3/24/2017 7

TYPES OF EXPERTS

3/24/2017 8

TYPES OF EXPERTS

3/24/2017 9

FDFCDC 154 3 3/24/2017

DUTY TO INVESTIGATE

ABA Standard 4-4.1 Defense counsel’s duty to make independent investigation of the “circumstances of the case” ABA Standard 4-8.1 Defense counsel’s duty to “verify” PSR

3/24/2017 10

WHY USE INVESTIGATOR

Specialized training Law enforcement experience Investigative tools Use as witness

3/24/2017 11

USING INVESTIGATOR

Prepare investigator Government’s case Your case Discovery review with defendant Cooperating defendant Case Agent

3/24/2017 12

FDFCDC 155 4 3/24/2017

EFFECTIVE USE OF PARALEGALS Discovery Investigation Trial Preparation Trial Appeal

3/24/2017 13

NON-CAPITAL MITIGATION

ABA Duty-Verify PSR Investigator & Paralegal Records Interviews

3/24/2017 14

GUIDE TO JUDICIARY POLICY VOLUME 7, CHAPTER 3 (SEE 18 USC § 3006A(E))

• $800 maximum, without prior approval (all Service Providers combined) • • $2,500 maximum, with prior approval by District Court Judge (per Service Provider) • • Anything above $2,500 needs Circuit Court Chief Judge approval

3/24/2017 15

FDFCDC 156 5 3/24/2017

GUIDE TO JUDICIARY POLICY VOLUME 7A, CHAPTER 6 (SEE 18 USC § 3599(G)(2))

• $800 maximum, without prior approval (all Service Providers combined) • • $7,500 maximum, with prior approval by District Court Judge (all Service Providers combined) • • Anything above $7,500 needs Circuit Court Chief Judge approval

3/24/2017 16

EFFECTIVE REQUESTS

3/24/2017 17

WHO

• Who do you want. Explain how they are qualified for the position. • • Consider providing a copy of CV

3/24/2017 18

FDFCDC 157 6 3/24/2017

WHAT

• What do you expect them to accomplish.

3/24/2017 19

WHERE

• Where are they from

• Where are they going to conduct the work

3/24/2017 20

WHEN

• When do you need the work accomplished and how long will it take

3/24/2017 21

FDFCDC 158 7 3/24/2017

WHY

• Why do you need this provider

• Why can’t you do the work yourself, and how is this saving costs

3/24/2017 22

HOW

• How will this accomplish your needs

• How long will it take

• How much is he charging and how many hours do you need

3/24/2017 23

GETTING YOUR SERVICE PROVIDER PAID

Use an Engagement Letter Monitor their hours and work Have them file regular interim payment request

3/24/2017 24

FDFCDC 159 8 3/24/2017

TIPS FOR SERVICE PROVIDER VOUCHERS

Fine line between paralegals and administrative tasks Cannot give them Advanced Pay Cannot use investigators/paralegals merely to serve subpoenas Cannot reimburse an expert for “lost wages” Consider reduced travel rates for experts Attorneys should travel to expert’s office rather than vice versa

3/24/2017 25

CALL FOR ASSISTANCE

Larry Dash

804-916-2177

[email protected]

3/24/2017 26

FDFCDC 160 9 DUNHAM CONFERENCE SESSION: USE OF EXPERT SERVICES

CURRENT USAGE OF SERVICES IN WDVA and EDVA

Statistics collected by the clerks’ offices show that CJA attorneys in both the EDVA and WDVA underutilize the expert services that are available to them. Although there has been no scientific survey to prove this proposition, it appears that the underutilization is a result of the failure of panel attorneys to request services, not the fault of the district judges in denying the requests.

In the WDVA for the calendar years 2007 through January 2017, there were a total of 2320 CJA appointments. Expert services, including interpreters (130), were used in only 247 cases, a rate of 11%. If interpreters are excluded, expert services were used in only 5% of cases. [See attached table] The most commonly used expert services were investigators (36), paralegals (17), and psychiatrists (11).

Statistics for the EDVA are similar. In FY 2013 the usage rate (excluding interpreters) for CJA attorneys was 4% of cases, and in FY 2014 it was 5%.

TYPES OF SERVICE PROVIDERS

Service providers for the most part fall into one of two categories: (1) investigative and support services; and (2) scientific and technical experts. Your need for expert services will depend upon the requirements of the specific case, including the nature of the charges, the complexity of the facts, the volume of discovery (and restrictions on discovery), and the designation of any expert opinions by the government.

1 FDFCDC 161 SCIENTIFIC OR TECHNICAL EXPERTS

The most common type of scientific or technical experts used are mental health experts. They are helpful in a number of circumstances, including situations where you want a preliminary evaluation done in order to determine whether there is a good basis for requesting a court-ordered evaluation for:

(1) Competency, to determine whether a defendant is competent to stand trial; [18 USC 4241]

(2) Sanity, to determine whether your client is suffering from a mental disease or defect that would support an insanity defense; [18 USC 4242] or

(3) Post-conviction hospitalization, to determine whether a person convicted of an offense, but not yet sentenced, is in need of custody for care or treatment. [18 USC 4244]

Mental health experts may also be useful at both the pretrial stage of the case or the sentencing phase of the case for purposes of:

(1) Psycho-sexual evaluation in child pornography cases and failure to register cases to determine whether the defendant creates a risk—often used for bail hearings;

(2) Substance abuse evaluation, for use in determining treatment needs and evidence to argue for pre-trial drug treatment; or

(6) Mitigation review of defendant’s mental health history prior to sentencing, particularly if PSR contains mental health information.

Other expert services that may be useful include computer experts (child pornography cases), cell phone and cell tower experts, toxicologists and chemists, forensic accountants (financial fraud cases), and ballistics and firearms experts. [Attached list of all types of experts used in the district.]

If the government is going to use an expert witness at trial, the government is required by FRCrP 16(F) and (G) to disclose the results of any physical or mental examination and any scientific test or experiment, and provide a written summary of any testimony by an expert under FRE 702, 703 or 705. Your own expert can review the government expert’s finding and

2 FDFCDC 162 opinions and help you (1) prepare to interview the government’s expert, (2) cross-examine the government’s expert at trial, and (3) provide evidence to rebut the government’s expert.

INVESTIGATION

A. DUTY TO INVESTIGATE

The ABA Standards include a section on investigation and preparation, which is in the “Defense Function” part of the Criminal Justice Section Standards. In February 1991, the ABA House of Delegates approved these “black letter” standards that have been published with commentary in ABA Standards for Criminal Justice: Prosecution and Defense Function, 3d ed., ©1993 American Bar Association.

Standard 4- 4.1 Duty to Investigate

(a) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.

Relying in large part on this standard, the Supreme Court has stated that defense counsel has a constitutional duty “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.S. 668, 691 (1984). This means, at a minimum, an independent investigation of the facts, and seeking out and interviewing potential witnesses. A defense attorney may not rely solely on information provided by the prosecution, or by the client.

B. WHY USE AN INVESTIGATOR?

Investigators are trained and experienced in ways that a lawyer isn’t. Many investigators have a law enforcement background that becomes very useful, and some still have contacts from their experience in law enforcement that come in handy. Investigators usually have specialized software that

3 FDFCDC 163 allows them to obtain information (personal, financial, background, etc.) about a person that most people can’t or don’t know how to access.

Being your own investigator is fraught with problems.

Rule 3.7 prohibits a lawyer from acting as both lawyer and witness unless the testimony (1) relates to an uncontested issue; (2) relates to value of legal services; or (3) disqualification would work a substantial hardship.

Many of you have probably encountered the situation where you interview a witness and then at trial the witness changes his story, making him ripe for impeachment. But how do you confront the witness with his prior inconsistent statement without making yourself a witness?

Some lawyers think you can proceed in this fashion: On cross-examination ask the witness, “Remember when we talked two weeks ago? Didn’t you tell me at that time that the light was green?” Better yet, before asking the question, deliberately open your file and remove your notes (or a reasonable facsimile) and look at them first. If the witness admits making the statement, he can go on to explain why he is now making a contradictory statement (e.g., “I’ve thought more about it”). If he denies making the statement, you either have to let it go, or you have to move to withdraw as counsel in order to testify.

However, the majority of the ethics opinions on this subject appear to condemn asking even the first question, “Didn’t you tell me. . .?,” as it is a form of testimony by the lawyer. It this problem arises, you are going to have to move to withdraw in order to testify. If there is a question as to what a lawyer should do, the 4CCA says: “Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.” International Woodworkers of Am. V. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1272 (4th Cir 1980).

If your investigator interviewed the witness, or was present when the attorney interviewed the witness, the investigator can testify as to the prior inconsistent statement and the attorney doesn’t have to withdraw.

4 FDFCDC 164 C. USE OF INVESTIGATOR

1. Prepare the Investigator

Give the investigator a copy of the indictment, or complaint, and tell him what you know about the case: the allegations, the nature of charges, the potential penalties, the codefendants, the prosecutor, the cops, the witnesses, the victims, and anybody and anything else. At this point what you want is information, and the more information you provide to the investigator, the more information you are likely to get back.

Because many investigators have backgrounds in law enforcement, they may already have some familiarity with substantive law and criminal procedure. Unfortunately, this is likely to be experience in state court, and may be more of a hindrance than a help. Explain what procedures must be followed, what deadlines and time constraints are in effect, and what resources are available.

Go over the rules. If your discovery is subject to a protective order, make sure your investigator is aware of that and what it means. If your investigator is not aware of your obligation to disclose reverse-Jencks, make sure you explain that so he doesn’t go around recording interviews.

To the extent you can, outline for investigator (1) what elements the government has to prove, and (2) what facts the government needs to prove each element. If you have developed a theory of the case, explain that: for example, the defendant sold heroin, but less than the 100 grams charged; or the defendant sold heroin, but that’s know what caused the death.

2. The Government’s Case

Your investigator should review the discovery materials provided by the government. The threshold question to be addressed is whether the government has the goods. In other words, does the government have evidence to prove—at least on a prima facie basis--each element of the offense charged? If so, then the investigation should focus on determining the validity and reliability of the government’s evidence.

Attacking the integrity of the government’s case is a recognized defense strategy. See Kyles v. Whitney, 514 419, 437 (1995): [T]he evidence withheld denied the defense the ability to “undermine the ostensible integrity of the [police]

5 FDFCDC 165 investigation” and “lay the foundation for a vigorous argument that the police had been guilty of negligence.”

Typical sources of information found in discovery are:

(a) Police reports, witness interviews, audio and video recordings, criminal histories, physical evidence, visiting crime scenes, laboratory reports, autopsy and medical examiner reports, photographs, etc.

And the investigator can follow with his own research by:

(b) Interviewing witnesses, researching social media, obtaining telephone records (text messages, cell tower information), interview medical examiner, lab techs.

After reviewing the government’s evidence the investigator should make a time-line of events, and a summary of how different persons (defendants, coconspirators, witnesses, victims, etc.) fit into the time-line. That should be your working narrative of the case.

3. Building Your Own Case

This part of your investigation should fit in with your theory of the case, e.g., mistaken identity, lying witnesses, lack of intent, and so on. Your investigator can help in various ways, such as, locating new witnesses, researching social media, obtaining criminal history and other impeachment information (e.g., mental health, drug treatment) of government witnesses.

4. Working with Defendant

Counsel has an ethical obligation to keep a defendant informed, and as a practical matter, the defendant should be given access to the evidence that is going to be used against him so that he can (1) assist in his defense, and (2) make informed decisions as to whether to plead or go to trial.

Making discovery material accessible to defendants has become increasingly difficult because of the increasing use of protective orders to restrict dissemination of discovery materials. These orders typically contain language that prohibit giving copies of discovery materials to defendants in custody. Read literally, some orders would require counsel to be personally present to review discovery materials with the

6 FDFCDC 166 defendant. However, the orders usually expressly include, or are interpreted to include “agents” of defense counsel, such as investigators and paralegals.

Your investigator, then, can be of great service to you by going to the jail and reviewing discovery materials with the defendant so you don’t have to do it. Don’t overlook this service when requesting funds for an investigator. If the courts want to impose these onerous restrictions, they should pay for them.

5. Helping the Cooperating Defendant

Even if your defendant decides to cooperate, that by itself does not mean he will get a substantial assistance motion. The prosecutors and the case agents have their own arbitrary standards in determining who qualifies. But, as a general rule, the more useful the defendant’s information, the more likely the 5K. However, even if a defendant provides valuable information, it’s not worth much if it isn’t used to advance an investigation.

The investigator can help in this regard by following up on the information provided by the defendant to conduct his own investigation to obtain information that can be served up to the government. In other words, doing the government’s job for it. This can make the difference between your client getting a 5K or being stuck with a mandatory minimum sentence.

6. Case Agent

Your investigator can act as your case agent at trial. Sitting at counsel table, comparing witness testimony with prior statements for impeachment. Prepping and debriefing witnesses. Organizing documents and exhibits.

D. EFFECTIVE USE OF PARALEGALS

1. Role of Paralegal

Paralegals provide support services, but the nature of the services will vary depending on the needs of the attorney in a particular case and the capabilities of the particular paralegal. Some paralegals are highly skilled and are capable of performing many of the tasks usually done by attorneys, such as legal research, drafting pre-trial motions and briefs, and preparing jury instructions. It is more likely that you will

7 FDFCDC 167 have someone who performs more of a role of generic assistant, and whose tasks may overlap to some extent with those of an investigator and those of a legal secretary. Nevertheless, a paralegal can be immensely helpful in case preparation.

2. Case Preparation

(a) Discovery

The paralegal can review the discovery materials provided by the government and (1) prepare an inventory and index of the materials, and (2) prepare individual summaries of grand jury testimony, witness interviews, police reports, etc. If the paralegal has software, such as CaseMap, the discovery can be entered into that system. Otherwise, the paralegal can organize the discovery manually. Like the investigator, the paralegal can review discovery with a defendant in custody.

(b) Investigation

The paralegal can perform some investigative services, such as preliminary interviews with the defendant and family members for bail purposes, and contacts with prospective witnesses and expert service providers. The paralegal can obtain records (employment, health, education, etc.) and can prepare subpoenas for documents and witnesses.

The paralegal can prepare trial exhibits and assist in the presentation of exhibits at trial. The paralegal can assist with the logistics of getting witnesses to trial and coordinate the appearances of trial witnesses.

(d) Trial

The paralegal can assist in jury voir dire and selection— particularly when juror questionnaires are being used--keep files organized, take notes, order trial transcripts, review and summarize transcripts, and prep witnesses.

(e) Appeal

The paralegal can order transcripts, organize documents, order exhibits, and prepare the joint appendix.

8 FDFCDC 168 E. NON-CAPITAL MITIGATION

Both the investigator and the paralegal can be useful in collecting and developing non-capital mitigation materials.

It is a mistake to simply rely on the presentence investigation report. For one thing they often contain mistakes, and for another, despite the protestations of the probation office to the contrary, they are often prejudiced in favor of the government. In the WDVA Standing Order No. 2010-6 gives the probation officers authority to see the case files of the U.S. Attorney’s office to prepare the PSR. This is where they get their information about your client’s case, and you have no idea what else they are told.

ABA Standard 4-8.1 requires defense counsel to “seek to verify the information contained in [the presentence report] and should be prepared to supplement or challenge it if necessary.” That means you have to do your own investigation, even if it means duplicating what the probation office has done.

The paralegal can be particularly helpful in obtaining records. If there is a question about a conviction that affects your client’s criminal history, or his classification as, e.g., a career offender, you will need to get the underlying documents associated with the conviction. You might also need to obtain records related to employment, education, physical health, mental health, and substance abuse and treatment. As a starting point the client can review the PSR with you and help sort out what is accurate and what needs to be verified.

If there is a large volume of health/mental health information, or if it is particularly complicated, you may want to request the services of a medical person, such as a nurse, to review and summarize the medical records for you. Depending on what you get, you may want to request the services of a physician or psychologist or other expert to confirm or dispute a diagnosis and/or prognosis.

The paralegal or investigator may also assist you by locating and interviewing your client’s family members, friends, teachers, coaches, etc., and you may be able to obtain from them things like photographs, certificates, award documents, even report cards, etc. The paralegal is also better-positioned to develop a friendly relationship and help prepare these persons for appearances at a sentencing hearing.

9 FDFCDC 169 Name of Expert Type of Expert Gillespie CPA PC, Darryl J. Accountant Graham & Poirot CPA's LLC Accountant Poirot, Peter A Accountant Hitechew, Ronald W. Arson Expert Conrad, William E. Ballistics Expert Davis, Ann Ballistics Expert Daniel M.D. J.D, Jack Chemist/Toxicologist Harris, Heather Chemist/Toxicologist Harris, Thomas M Chemist/Toxicologist Lee, Matthew C. Chemist/Toxicologist Dardick, Glenn S. Computer (Hard/Software) Garretson Consulting, Inc Computer (Hard/Software) Spencer Tech Solutions Computer (Hard/Software) Sensei Enterprises Inc Computer Forensics Expert Cunningham Ph.D., Mark D. Corrections Expert James E. Aiken And Associates, Inc. Corrections Expert Larry A. Peters, Inc Education Expert Arden Forensics Forensic Pathologist Schwartz‐Watts, Donna Forensic Psychiatrist Advance Technology Investigations, Llc Forensic Text Retrieval Arden, Jonathan Forensics Callery, Richard M.D Forsenic Pathologist Marquart, James W. Gang Expert Slack, Jeremy Gang Expert Abreu Language Services, Ltd Interpreter Beleno, Olga Interpreter Bolix, Paula Interpreter Boloix, Edward Interpreter Borkowsky, Fabiana Interpreter Caballero, Stephanie Interpreter Cohen, Esther Interpreter Dau, Daniela Interpreter De Velasco, Liana Arias Interpreter Dellaria, Massimo A. Interpreter Ding, Xuemei Interpreter Dressler, Margaret Interpreter French, Fabiana B. Interpreter Gallaway, Emily Interpreter Griffith, Milca S Interpreter Hoy, Mildred S. Interpreter Hoy, Mildred Schoenfeld Interpreter International Rescue Committe Interpreter Jennings Jr., Lloyd B. Interpreter Karlinsky, Leanne Interpreter Lamas, Roxana Interpreter Latham, Andrew Interpreter FDFCDC 170 Name of Expert Type of Expert Linguistic Services Llc Interpreter Lopez‐Cotaina, Jose Interpreter Lunsford, Ernest J. Interpreter Map International, Inc. Interpreter Nunez, Isolina Interpreter Rodriguez, Tania L. Interpreter Sigler, Myriam C. Interpreter Spanish Resources Llc Interpreter Valcourt, Carol Interpreter Versteylen, Chany Interpreter Viva Spanish LLC Interpreter Youssefi, Ali Interpreter Advanced Private Investigations, LLC Investigator Caudel, Marc Investigator Chapman, Robert Investigator Complete Surveillance And Investigative Investigator Confidential Investigative Services Investigator Dean, Steven Investigator Heilberg, David L Investigator Holt, Diana L. Investigator Ingram Investigations Incorporated Investigator James Sr, Gary Lee Investigator Janney, Alfred D. Investigator Litton, Kimberly R. Investigator Mountain Investigations Investigator Mullikin, Candace Investigator Pye, Doris Investigator Richard A. Ress & Associates Llc Investigator S. Yount Investigations, Inc Investigator Sullivan Investigations Investigator Wilson, Kenneth L. Investigator Wittig, Randall M. Investigator Wynne Investigation, Inc Investigator Kolovrat, Melissa M. Legal Research Daum M.D.P.C., Conrad H. Mental Health Expert Cummings, Ron Mitigation Specialist Durr, Leslie Mitigation Specialist Frosch, Phoebe Mitigation Specialist National Center On Institutions Mitigation Specialist Vogelsang Consulting Inc Mitigation Specialist Swerdlow, Russell HNeurologist James, Joette Deanna Neuropsychologist Moshlak, Steven Other Poarch, Christine Other Vanover, Kayla Other DNA Diagnostics, Inc. Other Medical Expert FDFCDC 171 Name of Expert Type of Expert Phillips, Austin Paralegal Services Lambert, Wiliiam Gregory Presentence Investigation Expert Caruso, Keith A. Psychiatrist Rector And Visitors Of The University Of Virginia Psychiatrist Thomas Jr. M.D., J. Anderson Psychiatrist Leippe, Phd, Michael Psychological Eyewitness Expert Boyd, Sara E. Psychologist Cornell Phd, Dewey G. Psychologist Corvin M.D., George P. Psychologist Danville Pittsylvania Community Services Psychologist Fletcher, Constance N. Psychologist Fracher, Dr., Jeffrey C. Psychologist Gravel, Trevor Psychologist Minrath Ph.D. , Marilyn F. Psychologist Reschly, Daniel J. Psychologist Spica Ph.D., D. Malcolm Psychologist Farrow, Thomas E. Technical Services Rudiger And Green Transcriber Shenandoah Reporting Transcriber Professional Audio Laboratories Video Analyst Custom Video And Photography Services Videographer

FDFCDC 172 Guide to Judiciary Policy Vol. 7: Defender Services Pt. A: Guidelines for Administering the CJA and Related Statutes

Ch. 3: Authorization and Payment for Investigative, Expert, or Other Services

§ 310 In General § 310.10 Availability § 310.20 Limitations § 310.30 Ex Parte Applications § 310.40 Claims for Services Other than Counsel § 310.50 Forms for the Authorization and Payment for Services Other than Counsel § 310.60 Interim Payments § 310.65 Proration of Claims § 310.70 Review of Vouchers

§ 320 Authorization of Investigative, Expert, and Other Services § 320.10 Investigators § 320.15 Interpreters § 320.20 Psychiatrists, Psychologists § 320.30 Transcripts § 320.40 Fact Witnesses and Depositions § 320.50 Guardian Ad Litem § 320.60 Commercial Computer-Assisted Legal Research Services § 320.70 Other Services and Computer Hardware and Software § 320.80 Reimbursement of Expenses § 320.90 Record Keeping

Appendices

Appx. 3A Sample Request for Advance Authorization for Investigative, Expert, or Other Services Appx. 3B Procedures for Interim Payments to Service Providers in Non-Death Penalty Cases Appx. 3C Procedures for Interim Payments to Service Providers in Capital Proceedings Appx. 3D Sample Order Authorizing the Acquisition of Computer (Hardware and/or Software) under the CJA

Last substantive revision (Transmittal 07-007) September 17, 2013 Last revised (updated case compensation maximums) January 28, 2016 FDFCDC 173 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 2

§ 310 In General

§ 310.10 Availability

§ 310.10.10 Overview (a) Investigative, expert, or other services necessary to adequate representation, as authorized by subsection (e) of the Criminal Justice Act (CJA) (18 U.S.C. § 3006A), are available to persons who are eligible under the CJA, including persons who have retained counsel but who are found by the court to be financially unable to obtain the necessary services.

(b) In this connection, a person with retained counsel is financially unable to obtain the necessary services if the person’s resources are in excess of the amount needed to provide the person and the person’s dependents with the necessities of life, provide defendant’s release on bond, and pay a reasonable fee to the person’s retained counsel, but are insufficient to pay for the necessary services.

§ 310.10.20 Retained Counsel and Fee Arrangements (a) In responding to requests for services under 18 U.S.C. § 3006A(e) by a person represented by retained counsel, the court should inquire into the fee arrangement between the retained attorney and the client.

(b) If the court finds the fee arrangement unreasonable in relation to fees customarily paid to qualified practitioners in the community for services in criminal matters of similar duration and complexity, or that it was made with a gross disregard of the defendant’s trial expenses, the court may order the retained attorney to pay out of such fees all or such part of the costs and expenses as the court may direct.

(c) The procedure outlined in the Guide, Vol. 7A, § 210.40.40 applies to such persons who are financially able to pay some, but unable to pay all, the costs of necessary services.

§ 310.10.30 Pro Se Representation (a) Persons who are eligible for representation under the CJA, but who have elected to proceed pro se, may, upon request, be authorized to obtain investigative, expert, and other services in accordance with 18 U.S.C. § 3006A(e).

(b) The court should authorize subsection (e) services for pro se litigants and review and approve resulting claims in the same manner as is its practice with respect to requests made by CJA panel attorneys. However, in

FDFCDC 174 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 3

matters for which appointment of counsel is discretionary under 18 U.S.C. § 3006A(a)(2), the court should make a threshold determination that the case is one in which the interests of justice would have required the furnishing of representation.

(c) Although a federal defender organization may be requested to provide administrative assistance to pro se litigants who wish to arrange for subsection (e) services, the investigative, paralegal or other services or resources of the organization should ordinarily be employed only when the organization is appointed as counsel of record, responsible for the conduct of the litigation.

§ 310.20 Limitations

§ 310.20.05 Engaging Relatives for Compensable Services (a) Prior to engaging any relative (as the term is defined in 5 U.S.C. § 3110) to perform CJA compensable services, other than as associate counsel in the same law firm (see: Guide, Vol. 7A, § 230.53.10), counsel should first provide notification of the relationship and potential services to the presiding judicial authority.

(b) The court may, in the interest of justice, and upon finding that timely procurement of necessary services could not await prior notification, approve payment for such services up to the dollar threshold for obtaining services without prior authorization under 18 U.S.C. § 3006A(e)(2) and the CJA Guidelines (Guide, Vol. 7A, § 310.20.30).

§ 310.20.10 With Prior Authorization (a) With prior authorization, compensation for investigative, expert, and other services is limited to the amounts in the following table for CJA compensable work performed on or after the effective date. For guidelines applicable to capital cases, see: Guide, Vol. 7A, § 660.10.40 and § 660.20.

§ 310.20.10(a) Waivable Case Compensation Maximums for Investigative, Expert, and Other Services

If services were The Authority performed between... compensation maximum is ... 01/01/16 to present $2,500 Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, enacted on Dec. 18, 2015.

FDFCDC 175 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 4

§ 310.20.10(a) Waivable Case Compensation Maximums for Investigative, Expert, and Other Services

If services were The Authority performed between... compensation maximum is ...

05/27/10 to 12/31/15 $2,400 Federal Judiciary Administrative Improvements Act of 2010, Pub. L. No. 111-174, enacted on May 27, 2010.

12/8/04 to 5/26/10 $1,600 Omnibus Appropriations Act, Fiscal Year 2005, Pub. L. No. 108-447, H.R. 4818, enacted December 8, 2004.

11/14/86 to 12/7/04 $1,000 Pub. L. No. 99-651, 1986 HR 3004, enacted November 14, 1986.

(b) The waivable case compensation maximum amounts apply per organization or individual, exclusive of reimbursement for expenses reasonably incurred, and per individual authorization to perform said service, except with regard to capital cases. See: Guide, Vol. 7A, § 660.20. (c) A separate authorization should be obtained for each type of service for each person served, and for each defendant served, and for each case.

(d) While the service provider may be compensated separately for each person served, care should be taken to ensure that duplicate charges are not being made for the same services.

(e) If, under 18 U.S.C. § 3006A(e), such services are rendered by members of an organization such as a corporation, unincorporated association, or partnership (other than those created under 18 U.S.C. § 3006A(g)), in their capacities as members of that organization, compensation is deemed to have been earned by the organization and is paid to it only once, per CJA client served, in an amount not to exceed the statutory maximum, exclusive of reimbursement for expenses reasonably incurred.

§ 310.20.20 Waiving the Case Compensation Maximums (a) Payment in excess of the case compensation limit for services authorized prior to the performance thereof may be made when certified by the court or U.S. magistrate judge and approved by the chief judge of the circuit (or an active or senior circuit judge to whom excess compensation approval authority has been delegated) as being necessary to provide fair compensation for services of an unusual character or duration.

FDFCDC 176 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 5

(b) If it can be anticipated that the compensation will exceed the statutory maximum, advance approval should be obtained from the court and the chief judge of the circuit (or the active or senior circuit judge to whom excess compensation approval authority has been delegated). See: Appx. 3A (Sample Request for Advance Authorization for Investigative, Expert, or Other Services).

§ 310.20.30 Without Prior Authorization (a) 18 U.S.C. § 3006A(e)(2)(A) authorizes the obtaining of investigative, expert, and other services, without prior authorization but subject to subsequent review, providing the cost of the services obtained does not exceed the amounts listed in the following table, plus expenses reasonably incurred. For information regarding obtaining investigative, expert, and other services in capital cases, see: Guide, Vol. 7A, § 660.

§ 310.20.30(a) Limitations on Services Without Prior Authorization

If services were The Authority performed between... compensation maximum is ...

05/27/10 to present $800 Federal Judiciary Administrative Improvements Act of 2010, Pub. L. No. 111-174, enacted on May 27, 2010.

12/8/04 to 5/26/10 $500 Omnibus Appropriations Act, Fiscal Year 2005, Pub. L. No. 108-447, H.R. 4818, enacted December 8, 2004.

11/14/86 to 12/7/04 $300 Pub. L. No. 99-651, 186 H.R. 3004, enacted November 14, 1986.

(b) The limitation noted above in § 310.20.30(a) may be waived, however, if the presiding judge or U.S. magistrate judge (if the services were rendered in a case disposed of entirely before the U.S. magistrate judge), in the interest of justice, finds that timely procurement of necessary services could not await prior authorization. See: 18 U.S.C. § 3006A(e)(2)(B).

§ 310.20.40 Periodic Increases to the Waivable Case Compensation Maximums The Federal Judiciary Administrative Improvements Act of 2010, Pub. L. No. 111-174, enacted on May 27, 2010, amended the CJA to increase the waivable case compensation amounts listed in § 310.20.10 and § 310.20.30 simultaneously with any subsequent, cumulative adjustments under 5 U.S.C. § 5303 in the rates of pay under the General Schedule (currently calculated based on the determination of the annual Employment Cost Index adjustment), rounded to the nearest hundred dollars. The

FDFCDC 177 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 6

Administrative Office will provide notice when new threshold amounts are effective under this provision.

§ 310.30 Ex Parte Applications

Ex parte applications for services other than counsel under 18 U.S.C. § 3006A(e) must be heard in camera, and must not be revealed without the consent of the defendant. The application must be placed under seal until the final disposition of the case in the trial court, subject to further order of the court. Maintaining the secrecy of the application prevents the possibility that an open hearing may cause defendants to reveal their defense. Appointed counsel may not be required to submit evidence of a prior attempt to enter into a stipulation with the U.S. attorney as a prerequisite to obtaining services under 18 U.S.C. § 3006A(e). The court may encourage counsel to enter into stipulations, in the interest of expedition and economy, without, however, disclosing the contents or otherwise compromising the secret nature of the ex parte application.

§ 310.40 Claims for Services Other than Counsel All claims for services other than counsel, under 18 U.S.C. § 3006A(e), should include the following:

(a) a statement as to the type of, dates of, and time expended for, the services provided;

(b) an explanation of the fee arrangement (e.g., hourly rate, per diem rate, etc.);

(d) supporting documentation, where practicable, for all expenses of lodgings and subsistence, and for any expenses in excess of $50.

§ 310.50 Forms for the Authorization and Payment for Services Other than Counsel Forms for the authorization and payment for services other than counsel, together with instructions for the execution and distribution thereof, can be found on the judiciary’s public website.

§ 310.60 Interim Payments

§ 310.60.10 Non-Death Penalty Cases (a) Where it is considered necessary and appropriate in a specific case, the presiding trial judge may arrange for periodic or interim payments to an

FDFCDC 178 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 7

individual whose services are obtained under 18 U.S.C. § 3006A(e). For instructions on the procedures for effecting interim payments to persons other than counsel, as well as a sample memorandum order on this subject which provides for two alternative payment methods, see: Appx. 3B (Procedures for Interim Payments to Service Providers in Non-Death Penalty Cases).

(b) The payment options provided in Appx. 3B are designed to strike a balance between the interest in relieving subsection (e) service providers of financial hardships in extended and complex cases, and the practical application of the statutorily imposed responsibility of the chief judge of the circuit to provide a meaningful review of claims for excess compensation. Other interim payment arrangements which effectuate this balance may be devised in consultation with the Administrative Office of the U.S. Courts’ (AO) Defender Services Office.

§ 310.60.20 Death Penalty Cases Presiding judicial officers are urged to permit interim payment in death penalty cases. Because the CJA compensation maximums for investigative, expert, and other services set out in § 310.20.10(a) do not apply in capital cases, different procedures and memorandum orders must be used in those cases. See: Guide, Vol. 7A, § 660.20. These procedures and sample memorandum orders are also set forth in Appx. 3C (Procedures for Interim Payments to Service Providers in Capital Proceedings).

§ 310.65 Proration of Claims

§ 310.65.10 In General (a) If services were provided for more than one CJA representation, the time spent in common, including travel time, must be represented on the voucher forms by:

• prorating the service time among the representations on separate vouchers; or • billing the entire service time on a voucher pertaining to one of the representations

The supporting materials to the vouchers must explain the method of billing and, when applicable, cross-reference the other CJA representations (see: § 310.65.20). (b) When a service provider incurs travel or other expenses applicable to more than one CJA representation, the entire amount of the expenses must be billed on one voucher.

FDFCDC 179 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 8

Time or expenses “spent in common” includes work performed simultaneously or within the same unit of time, or expenses incurred, for more than one representation (e.g., travel for more than one client). Double billing of time or expenses is prohibited (e.g., billing the same travel time or expenses applicable to more than one representation on more than one voucher).

• a federal public or community defender providing representation under the CJA or related statutes, or • a CJA panel attorney or other attorney or entity authorized to obtain services for a particular representation under the CJA or related statutes.

Reference to a “voucher” in this section includes invoices submitted to a federal public or community defender organization for work performed for that entity.

For information regarding the overlap of billing time periods in the interpreter context specifically, see: § 320.15.30.

§ 310.65.20 Cross-Referencing Vouchers (a) Whenever a service provider submits a voucher, as provided by this section, that includes time spent in common, if the time is prorated then each CJA representation must be cross-referenced on the supporting documentation to each voucher. If the time is billed to one representation, the other representations must be cross-referenced on the supporting documentation to that voucher. However, to ensure that an appointed attorney does not receive inappropriate information as to another attorney’s use of the service provider, the CJA representations that are cross-referenced should not be identified by name and case number if the work was performed for an attorney other than the one who will be certifying the voucher, although the number of other representations should be listed.

(b) After the attorney certifies the service provider’s voucher, the service provider, upon the request of the court’s designated CJA voucher review personnel, must provide the name, case number, and any other identifying information for such representations.

§ 310.65.30 Prorating Time Limitation Proration of time among CJA representations must not result in a service provider billing a larger amount than would have been billed if all the time was assigned to one voucher.

FDFCDC 180 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 9

§ 310.65.40 Application of the Case Compensation Maximum Where compensation is claimed on a voucher for time spent in common on more than one CJA representation, the compensation will be applied to the pre-authorized and case compensation maximum amounts for the representation on that voucher.

§ 310.65.50 Time Spent in Common with Non-CJA Representations (a) If the service provider is billing under the CJA for time or expenses, including travel, that were spent in common for a purpose other than a CJA representation, the service provider must report such information so that the court can determine whether, in fairness to the provider, the time or expenses should be apportioned and the provider compensated for the time or expenses reasonably attributable to the CJA.

Note: There is no apportionment between a contract court interpreter’s work for a court unit and the CJA, see: § 320.15.30. (b) The service provider should explain the rationale for billing under the CJA, and the court may conduct a further inquiry.

(c) In determining whether time or expenses spent in common for a purpose other than a CJA representation should be apportioned, the court should consider:

• the time or expenses reasonably expended in the performance of the service provider’s duties under the CJA in relation to the time and expenses expended furthering other purposes; • the significance to the representation of the duties performed or expenses incurred; and • the likelihood that the service provider would have performed the services or incurred the expenses under the CJA in the absence of the other purposes.

§ 310.70 Review of Vouchers Absent extraordinary circumstances, judges should act upon claims for compensation for investigative, expert, or other services within 30 days of submission.

§ 320 Authorization of Investigative, Expert, and Other Services

§ 320.10 Investigators When necessary to an adequate representation as described above, the court may authorize, under 18 U.S.C. § 3006A(e), the services of an investigator.

FDFCDC 181 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 10

§ 320.15 Interpreters

§ 320.15.10 Terms of Compensation (a) Interpreting services provided under the CJA may be compensated:

• according to the terms and conditions set forth in the court interpreter services contract; • on an hourly rate basis; or • on another appropriate basis.

(b) Interpreters should be compensated consistently throughout the district or, if applicable, in individual court locations.

§ 320.15.20 Reviewing the Rate of Compensation (a) In determining the reasonableness of rates paid to interpreters under the CJA, courts should utilize either:

(1) the half- and full-day rates established by the Director for contract court interpreters performing in-court services; or

(2) an hourly rate. The half- and full-day rates (prorated hourly) or the hourly overtime rate should be used as a guidepost for the reasonableness of the hourly rate. (b) Justification should be submitted to the presiding judicial officer if compensation is sought for an interpreter by a method different from or in an amount in excess of presumptive or maximum rates adopted by a court.

§ 320.15.30 Overlap of Billing Time Periods (a) Contract court interpreters must not bill or receive funds from any other federal court unit, federal public defender, community defender organization, or other attorneys or entities obtaining interpreting services under the CJA or related statutes for any services rendered during the same half- or full-day for which the contract court interpreter is being compensated pursuant to the court interpreter services contract. See: Guide, Vol. 5, § 220.30.20. Thus, an interpreter retained by the court under the court contract for a one-half or full-day period may not bill the CJA for any work performed during that same half-day or full-day period even if the court no longer requires the interpreter’s services.

FDFCDC 182 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 11

(b) An interpreter billing on a half- or full-day rate basis, hourly basis, or other unit of time under the CJA must not charge any other federal court unit, federal public defender, community defender, CJA panel attorney, or other person or entity otherwise authorized by the court to obtain the services of an interpreter under the CJA or related statutes for any services rendered within the same time period.

(c) When an interpreter is invoicing under the CJA on a half-day rate basis and works one half-day for a court unit and another half-day for a CJA representation, or is invoicing two separate half-days for different CJA representations, then the first half-day should be billed at the half-day rate and the second at the difference between the half-day and full-day rates, unless otherwise negotiated. (d) It is permissible to prorate compensation among more than one CJA representation (but expenses must be invoiced to one CJA representation) or to apportion compensation, including expenses, between a CJA representation and a non-CJA purpose (not including a federal court unit). See: § 310.65.

§ 320.20 Psychiatrists, Psychologists

§ 320.20.10 Type of Examinations Chapter 313 of Title 18, as amended by the Insanity Defense Reform Act of 1984 (Chapter IV of the Comprehensive Crime Control Act of 1984), provides for court- directed psychiatric or psychological examination of individuals in connection with the various proceedings to determine mental condition authorized under that chapter. The functions of these separate proceedings are to determine:

(a) the mental competency of a defendant to stand trial (18 U.S.C. § 4241);

(b) insanity at the time of the offense (18 U.S.C. § 4242);

(c) the mental condition of an acquitted person hospitalized following a finding of not guilty only by reason of insanity (18 U.S.C. § 4243);

(d) the present mental condition of a convicted defendant (18 U.S.C. § 4244);

(e) the present mental condition of an imprisoned person who objects to transfer to a treatment facility (18 U.S.C. § 4245); and

(f) the present mental condition of a hospitalized person due for release (18 U.S.C. § 4246).

FDFCDC 183 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 12

In addition, mental condition examinations may be conducted for purposes other than those specified in 18 U.S.C. chapter 313, e.g., to aid the defendant in preparing a defense.

§ 320.20.20 Source of Payment (a) CJA funds are used to pay for psychiatric and related services obtained in accordance with 18 U.S.C. § 3006A(e) upon a determination that the services are “necessary for an adequate defense.” These are “defense” services, where the defendant selects the expert and controls the disclosure of the expert’s report.

(b) It is important to note that psychiatrists and related experts may be used in many circumstances in which payment is made from a source other than the CJA appropriation. In these situations the court or the government selects the expert and persons other than the defendant also have access to the expert’s report. The Department of Justice (DOJ) generally pays for these “non-defense” services. The chart in § 320.20.60 summarizes payment responsibility for the various circumstances in which psychiatric and related services are utilized.

§ 320.20.30 Limitation of Amount The limitations contained in § 310.20 apply to compensation claims submitted by “defense” psychiatrists and related experts, to be paid out of the CJA appropriation. For information regarding “dual purpose” examinations, see: § 320.20.50.

§ 320.20.40 Procedures for Payment (a) CJA Appropriation – Defense Services

(1) Form CJA 21 (Authorization and Voucher for Expert and Other Services) should be used for all payments for “defense” services in non-capital cases.

(2) Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services) should be used for all payments for “defense” services in death penalty cases.

(3) The form CJA 21 or CJA 31 should clearly describe the purpose of the expert’s service.

(4) If separate vouchers are submitted for examination and testimony, they should be cross-referenced by voucher number.

FDFCDC 184 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 13

(b) DOJ

Compensation claims for psychiatric and related services to be paid for by the DOJ should be referred to the U.S. attorney or assistant U.S. attorney.

§ 320.20.50 Dual Purpose Examinations (a) On occasion, a psychiatrist or related expert will be asked to examine an individual for both a “defense” purpose and a “non-defense” purpose. In these cases, the defense has waived the confidentiality of the “defense” portion of the examination. In such dual purpose examinations, for the convenience of the expert providing the service, the entire compensation claim may be submitted on Form CJA 21, or, in a death penalty proceeding, Form CJA 31. The CJA will pay the expert the total amount approved and obtain reimbursement to the CJA appropriation from the DOJ for one-half of the cost. As a result of the AO’s need to seek reimbursement from the DOJ, claims submitted for dual purpose examinations must be accompanied by separate court orders that indicate:

• who requested the examination; • the specific purpose(s) of the examination; • to whom the examination is directed; and • to whom copies of the report are to be given.

(b) The limitation in § 320.20.30 applies to 50 percent of the claim for a dual purpose examination in which a portion of the examination is for “defense” purposes.

(c) In some “dual purpose” examinations both portions of the examination are chargeable to the same payment source. For instance, if the examination included evaluation of competency to stand trial under 18 U.S.C. § 4241 and evaluation of sanity at the time of the offense under 18 U.S.C. § 4242, the DOJ would be responsible for both portions of the examination and the entire compensation claim should be submitted to the U.S. attorney or assistant U.S. attorney.

§ 320.20.60 Summary Chart: Responsibility for Payment of Psychiatric and Related Expert Services

Type of Service CJA DOJ (a) To determine mental competency to stand trial, under 18 U.S.C. § 4241

FDFCDC 185 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 14

§ 320.20.60 Summary Chart: Responsibility for Payment of Psychiatric and Related Expert Services

Type of Service CJA DOJ (1) Examination costs Yes, regardless of which party requests, including examination on court’s own motion

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls

(3) Testimony costs for examiner if If witness If witness appears on called at trial appears on behalf of government behalf of defense

(b) To determine existence of insanity at time of offense, under 18 U.S.C. § 4242

(1) Examination costs Yes

(2) Testimony costs for examiner if Yes, regardless of which called at trial party calls

(1) Examination costs Yes

(2) Testimony costs for examiner if Yes called at trial

(d) To determine mental condition of hospitalized person found not guilty only by reason of insanity, under 18 U.S.C. § 4243

(1) Examination costs Yes

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls

(e) To determine mental condition of convicted person suffering from mental disease or defect, under 18 U.S.C. § 4244

(1) Examination costs Yes

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls

(f) To determine mental condition of imprisoned person, under 18 U.S.C. § 4245

FDFCDC 186 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 15

§ 320.20.60 Summary Chart: Responsibility for Payment of Psychiatric and Related Expert Services

Type of Service CJA DOJ (1) Examination costs Yes, including costs of additional examiner selected by imprisoned person in accordance with 18 U.S.C. § 4247(b)

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls, including additional examiner selected by imprisoned person in accordance with 18 U.S.C. § 4247(b)

(g) To determine mental condition of hospitalized person due for release, under 18 U.S.C. § 4246

(1) Examination costs Yes, including costs of additional examiner selected by hospitalized person in accordance with 18 U.S.C. § 4247(b)

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls, including additional examiner selected by hospitalized person in accordance with 18 U.S.C. § 4247(b)

(h) Examination of a person in custody as Yes, under all a material witness circumstances

(i) Examination and testimony costs for If requested by If requested by the expert witnesses not appointed under the defense government, or if appointed 18 U.S.C. §§ 4241, 4242, 4243, 4244, as an independent expert 4245, 4246 on court’s own motion under Fed. R. Evid. 706

§ 320.30 Transcripts

§ 320.30.10 Authorization and Payment (a) For panel attorneys, the preferred method for payment of transcripts authorized by the court is for the court reporter or reporting service to claim compensation directly on a Form CJA 24 (Authorization and

FDFCDC 187 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 16

Voucher for Payment of Transcript). Alternatively, the panel attorney may pay for the court-authorized transcript and obtain reimbursement as an “out-of-pocket expense,” using Form CJA 24. See: Guide, Vol. 7A, § 230.63.20. Regardless of which method is used, the limitations set forth in § 310.20 and the $7,500 limitation set forth in Guide, Vol. 7A, Ch. 6 are inapplicable with regard to the cost of transcripts.

(b) In a direct appeal in a case in which counsel is assigned under the CJA, neither the CJA nor 28 U.S.C. § 753(f) requires the signing of a pauper’s oath or certification by the court that the appeal is not frivolous in order to obtain a transcript.

§ 320.30.20 Accelerated Transcript Costs

Routine apportionment of accelerated transcript costs among parties in CJA cases is prohibited. The following resolution was adopted by the Judicial Conference in March 1980, and modified in September 1986:

That the furnishing of accelerated transcript services in criminal proceedings should be discouraged; however, recognizing that there are some circumstances in which such transcript services are necessary and required by either the prosecution or the defense, or both, accelerated transcript services may be provided.

That in those cases where accelerated transcript services are provided, the party from whom the request or order emanates shall pay for the original, and if the requesting or ordering party is other than defense counsel appointed under the Criminal Justice Act, the CJA counsel shall be entitled to a copy at the copy rate.

That the present practice, in some districts, of routinely apportioning the total cost of accelerated transcript services equally among the parties should be abandoned.

See: JCUS-SEP 86, p. 90.

§ 320.30.30 Commercial Duplication in Multi-Defendant Cases (a) In multi-defendant cases involving CJA defendants, no more than one transcript should be purchased from the court reporter on behalf of CJA defendants. One of the appointed counsel or the clerk of court should arrange for the duplication, at commercially competitive rates, of enough copies of the transcript for each of the CJA defendants for whom a transcript has been approved. The cost of such duplication will be

FDFCDC 188 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 17

charged to the CJA appropriation. This policy would not preclude the furnishing of duplication services by the court reporter at the commercially competitive rate.

(b) In individual cases involving requests for accelerated transcripts, the court may grant an exception to the policy set forth in (a) of this subsection based upon a finding that application of the policy will unreasonably impede the delivery of accelerated transcripts to persons proceeding under the CJA. Such finding should be reflected on the transcript voucher.

§ 320.30.40 Standards for Transcripts of Other than Federal Court Proceedings In negotiating agreements and contracts for providing transcripts of other than federal court proceedings, including, for example, transcription or translation of wiretap recordings, it is recommended that the standards for the size and format of a page be the same as those used for transcripts of federal court proceedings.

§ 320.40 Fact Witnesses and Depositions

§ 320.40.10 Fees and Expenses of Fact Witnesses (a) Generally speaking, fees and expenses of fact witnesses for defendants proceeding under the CJA are paid by the DOJ. See: Fed. R. Crim. P., Rule 17(b); 28 U.S.C. § 1825.

(b) Section 1825 of 28 U.S.C. specifically provides for the payment of witness fees by the DOJ in all federal criminal proceedings, and in proceedings for a writ of habeas corpus or in proceedings under section 2255 of that title upon certification of a federal public defender or assistant federal public defender, or clerk of court upon the affidavit of other counsel appointed under the CJA.

(c) If advance witness travel funds are required, the court should issue the subpoena order, so stating, to authorize the travel advance by the marshal. These expenses will not be paid from CJA funds.

§ 320.40.20 Depositions Depositions are covered by Fed. R. Crim. P., Rule 15, rather than 18 U.S.C. § 3503 (repealed).

(a) Expenses incurred in the taking of fact witness depositions (notarial fees, interpreters, transcripts, etc.) are paid by the DOJ, regardless of which party requested the deposition.

FDFCDC 189 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 18

(b) The costs of attendance of fact witnesses for either party at the deposition are paid by the DOJ under Rule 17 (b).

(d) Reasonable travel and subsistence expenses incident to attendance of counsel and the defendant at the deposition are paid by the DOJ (1) if the government is the requesting party, or (2) if the defendant is the requesting party and is unable to bear the deposition expenses, based on resources that would be used to determine financial eligibility for appointed counsel. However, it should be noted that the presence of the defendant is not essential to defense depositions since the confrontation clause only requires the defendant’s presence if the depositions are intended to be used against the defendant.

§ 320.40.30 Travel Expenses, Subsistence, and Fees of Counsel in Habeas Corpus Cases In habeas corpus and 28 U.S.C. § 2255 cases, the court may order the state or the government to pay the “expenses of travel and subsistence and fees of counsel” to attend the taking of a deposition at the request of the state or government. See: Rules Governing §§ 2254 and 2255 Cases in U.S. District Courts, Rule 6.

§ 320.50 Guardian Ad Litem

§ 320.50.10 Proceedings Involving Juveniles A guardian ad litem appointed under 18 U.S.C. § 5034 is not eligible for compensation under the CJA or any other authority. Any person who is appointed as both counsel and guardian ad litem in one case under § 5034 should prorate time spent fulfilling the duties of these two offices. Only time spent as counsel on a case is compensable and should be reflected on the CJA claim.

§ 320.50.20 Prisoner Transfer Proceedings A guardian ad litem appointed in proceedings to verify consent of a minor or incompetent prisoner to transfer from the United States to a foreign country is eligible for compensation under the CJA under 18 U.S.C. § 4109(b). See: Guide, Vol. 7A , § 230.23.20(d) on compensation limits and Guide, Vol. 7B (International Prisoner Transfer Proceedings).

§ 320.60 Commercial Computer-Assisted Legal Research Services (a) The court may authorize counsel to obtain computer-assisted legal research services, where the research is performed by employees of a commercial legal research firm or organization rather than by appointed counsel, provided that the total amount charged for computer-assisted

FDFCDC 190 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 19

legal research services is reasonable. Requests by counsel for authority to obtain such computer-assisted legal research services should include: a brief explanation of the need for the research services; and an estimate of the charges.

(b) Claims for compensation for such services should be submitted on Form CJA 21 (Authorization and Voucher for Expert and Other Services), or, in a death penalty proceeding, Form CJA 31 (Death Penalty Proceeding: Ex Parte Request for Authorization and Voucher for Expert and Other Services). For information concerning reimbursement for the cost of direct use, by appointed counsel, of computer-assisted legal research services, see: Guide, Vol. 7A, § 230.63.30.

§ 320.70 Other Services and Computer Hardware and Software

§ 320.70.10 Other Services In addition to investigators, psychiatrists, psychologists, and reporters, services other than counsel may include, but are not necessarily limited to:

• interpreters;

• computer systems and automation litigation support personnel and experts;

• paralegals and legal assistants, including law students;

• neurologists and other medical experts; and

• laboratory experts in such areas as ballistics, fingerprinting, and handwriting.

§ 320.70.20 Notarial and Stenographic Expenses The use of CJA funds is authorized to pay expenses of eligible defendants for stenographic and notarial expenses required to perpetuate and authenticate testimony of expert witnesses for such defendants.

§ 320.70.30 Extraordinary Office Expenses (a) CJA attorneys are expected to use their own office resources, including secretarial help, for work on CJA cases. See: Guide, Vol. 7A, § 230.66.10.

(b) However, unusual or extraordinary expenses of these types may be considered “other services necessary for an adequate defense” and may be paid from CJA funds under 18 U.S.C. § 3006A(e).

FDFCDC 191 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 20

(c) In determining whether the expense is unusual or extraordinary, consideration should be given to whether the circumstances from which the need arose would normally result in an additional charge to a fee- paying client over and above that charged for overhead expenses. See: Decision of the Comptroller General, B-139703, Feb. 28, 1974, 53 Comp. Gen. 638.

§ 320.70.40 Computer Hardware, Software, or Litigation Support Services (a) Overview

(1) Providing an adequate defense may require CJA panel attorneys to utilize computer hardware, software, or litigation support services not typically available in a law office. In such cases, following the standards in § 320.70.30, counsel may apply to the court for authorization of CJA funds for the acquisition of such property or services.

(2) Before seeking court approval for any computer hardware or software with a cost exceeding the limitations in § 310.20.30(a), or for the utilization of computer systems, litigation support products, services, personnel, or experts with an expected combined cost exceeding $10,000, appointed counsel must consult the National Litigation Support Team in the Defender Services Office, Administrative Office of the United States Courts (phone number: 510-637-3500) for guidance. Counsel must inform the court in writing of the Defender Services Office’s advice and recommendation regarding counsel’s proposed expenditure. See also: Appx. 3D (Sample Order Authorizing the Acquisition of Computer [Hardware and/or Software] under the CJA).

(b) Acquisition of Computer Hardware and/or Software

(1) The request for acquisition of the computer hardware and/or software, or for the procurement of litigation support services should be submitted on a Form CJA 21 (Authorization and Voucher for Expert and Other Services), or, in a death penalty proceeding, Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services).

(2) Property purchased with CJA funds is the property of the United States and remains so after the case is completed.

(3) When property is purchased, counsel must provide the Defender Services Office with a copy of the following documents to ensure the property is properly accounted for: a copy of the court’s order

FDFCDC 192 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 21

approving the request; a copy of the completed Form CJA 21 (or Form CJA 31); the purchase order from the vendor and any receiving documents, such as a copy of the packing slip or the company’s invoice. (4) Because computer hardware or storage devices being used by counsel may contain confidential or privileged information, all case- related materials must be removed before the hardware is returned as described below. Unless otherwise required by the court or by law, counsel should retain copies, electronic or otherwise, of the case-related materials for the client’s file.

Note: When large amounts of electronic information are placed on drives or storage devices purchased with CJA funds, counsel may apply to the court to retain the drive or an alternative drive as the most cost-effective and efficient method for preserving the data. (5) Upon the completion of the case, counsel must contact the National Litigation Support Team in the Office of Defender Services at (510) 637-3500 for instructions on returning any software, and directions for deleting case-related material from any hardware and returning it to the National Litigation Support Team for the permanent removal of case-related material. If appointed counsel has acquired software, then counsel should provide all accounting information for the software, including any serial numbers, activation codes, or other identifying information, and remove the software from his or her machines. If appointed counsel acquired computer hardware, it must be returned in good condition.

§ 320.70.50 Paralegals, Legal Assistants, and Other Non-Secretarial Support (a) For services of paralegals, legal assistants, and other non-secretarial professional support personnel employed by appointed counsel, the court will determine a reasonable hourly compensation rate that may not exceed the lesser of the rate paid to counsel under the CJA or the rate typically charged by counsel to a fee-paying client for such services.

(b) Authorizing compensation at such rates should result in greater efficiency and lower costs for the CJA program than would occur if counsel performed and charged for these services.

§ 320.80 Reimbursement of Expenses

§ 320.80.10 Determination of Reasonableness In determining the reasonableness of expenses of persons furnishing investigative, expert, or other services, claimants and the court should be guided by the provisions of

FDFCDC 193 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 22 these Guidelines regarding reimbursement of expenses of counsel. See: Guide, Vol. 7A, § 230.63 and § 230.66. Gross receipts or other taxes levied on fees for expert services rendered under the CJA are not reimbursable expenses.

§ 320.80.20 Government Travel Rates Government travel rates at substantial reductions from ordinary commercial rates may be available from common carriers for travel authorized by the court in connection with representation under the CJA. To obtain such rates, investigators and other service providers must contact the clerk of court and obtain prior approval from the presiding judicial officer.

§ 320.90 Record Keeping (a) Investigative, expert, and other service providers must maintain contemporaneous time and attendance records for all work billed by them, as well as expense records.

(b) Such records are subject to audit and must be retained for three years after approval of the appointed counsel’s or the service provider’s final voucher, whichever is later, for a representation.

FDFCDC 194 18 U.S. Code § 3006A - Adequate representation of defendants • § 3006A. Adequate representation of defendants

(e) Services Other Than Counsel.—

(1)Upon Request.— Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate judge if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.

(2)Without Prior Request.—

(A) Counsel appointed under this section may obtain, subject to later review, investigative, expert, and other services without prior authorization if necessary for adequate representation. Except as provided in subparagraph (B) of this paragraph, the total cost of services obtained without prior authorization may not exceed $800 and expenses reasonably incurred.

(B) The court, or the United States magistrate judge (if the services were rendered in a case disposed of entirely before the United States magistrate judge), may, in the interest of justice, and upon the finding that timely procurement of necessary services could not await prior authorization, approve payment for such services after they have been obtained, even if the cost of such services exceeds $800.

(3)Maximum Amounts.— Compensation to be paid to a person for services rendered by him to a person under this subsection, or to be paid to an organization for services rendered by an employee thereof, shall not exceed $2,400, exclusive of reimbursement for expenses reasonably incurred, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge if the services were rendered in connection with a case disposed of entirely before him, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.

(4)Disclosure of fees.— The amounts paid under this subsection for services in any case shall be made available to the public.

(5) The dollar amounts provided in paragraphs (2) and (3) shall be adjusted simultaneously by an amount, rounded to the nearest multiple of $100, equal to the percentage of the cumulative adjustments taking effect under section 5303 of title 5 in the rates of pay under the General Schedule since the date the dollar amounts provided in paragraphs (2) and (3), respectively, were last enacted or adjusted by statute.

FDFCDC 195 18 U.S. Code § 3599 - Counsel for financially unable defendants § 3599.

(g) (2) Fees and expenses paid for investigative, expert, and other reasonably necessary services authorized under subsection (f) shall not exceed $7,500 in any case, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge, if the services were rendered in connection with the case disposed of entirely before such magistrate judge, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.

FDFCDC 196

IN THE UNITED STATES DISTRICT COURT FOR THE

UNITED STATES OF AMERICA, v. Criminal No.:

Defendant.

EX PARTE MOTION TO APPOINT AND COMPENSATE A PARALEGAL

NOW COMES the Defendant (the “Defendant”), and moves the

Court, pursuant to 18 U.S.C. § 3006A(e)(1), to appoint a paralegal to provide services to the

Defendant in the preparation of his case and also moves the Court to approve funds to compensate the paralegal. In support of his motion, the Defendant states as follows:

1. The United States filed an indictment charging the Defendant and four codefendants with one or more of the following offenses: Conspiracy to Distribute and Possess with Intent to Distribute Methamphetamine, in violation of 21 U.S.C. § 846; Distribution of

Methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); Maintaining Drug-

Involved Premises, in violation of 21 U.S.C. § 856(a)(1); Using the United States Mail to Cause,

Commit and Facilitate a Felony Violation of the Controlled Substances Act, in violation of 21

U.S.C. § 843(b); and a Forfeiture Allegation, in violation of 18 U.S.C. § 942(d), 21 U.S.C. § 853.

2. The Defendant is one of five defendants (collectively the “Defendants”) named in the Indictment, which contains twenty-seven (27) counts.

3. The Defendant appeared for his arraignment for the Indictment on March 23,

2016 at 2:00 p.m.

FDFCDC 197

4. The Government has produced three (3) DVDs of discovery material to date, including co-defendant interviews, voluminous postal records, voluminous financial records, evidence relating to three search warrants in addition to photograph, images and text messages from co-defendant cellular phone. Additionally, the Government produced a flash drive of 64GB of data this week, which contains voluminous text messages, images, photographs and videos extracted from the Defendant’s cellular phone.

5. Accordingly, the Defendant, by counsel, moves the Court for approval of paralegal support to assist defense counsel in reviewing the voluminous bank and postal records provided by the United States in addition to the evidence extracted from the Defendant’s cellular phone. Without the assistance of a paralegal, counsel will have to review all of the records at a much higher hourly rate.

6. The Defendant is indigent and he does not have the financial means to retain a paralegal to assist in his defense. Therefore, counsel for the Defendant respectfully requests that the Court enter an order, pursuant to 18 U.S.C. § 3006A(e)(1), authorizing counsel to retain a paralegal to assist the Defendant in preparing for trial.

7. Defense Counsel seeks to hire , to assist the Defendant in preparing his case. Ms. has an Associate’s Degree in Criminal Justice, a Bachelor’s

Degree in Criminal Justice and is currently pursuing her Master’s Degree in Criminal Justice; accordingly, she is qualified to provide the services required by counsel. Ms. has previously been appointed as a paralegal by this Court in , and she is providing services in another case currently pending before the Honorable

. The Defendant respectfully requests authority to retain Ms. to provide

FDFCDC 198

reasonable and necessary paralegal services to the Defendant. A copy of Ms. resume is attached hereto as Exhibit A.

8. Ms. hourly rate is $40.00 per hour, in addition to reimbursement for mileage and other travel expenses. It is estimated that Ms. will need approximately fifty (50) hours to complete her review of the records that are material to the Defendant; therefore, the Defendant, by counsel, respectfully requests approval to hire Ms. and requests funding in the amount of $2,000.00, in addition to mileage and other travel reimbursements.

9. Upon a review of the marketplace for similar services, it would appear that the compensation set forth herein is consistent with the prevailing rates in the

for an experienced paralegal with similar experience and knowledge.

10. Due to the fact that the foregoing motion reveals the trial strategies of defense counsel, which are privileged, the instant motion has been filed ex parte.

11. A proposed order is attached hereto as Exhibit B.

WHEREFORE, pursuant to 18 U.S.C. §3006A(e)(1), Ake v. Oklahoma, 470 U.S. 68

(184), and the United States v. Boone, 245 F.3d 352 (4th Cir. 2001), the Defendant, by counsel, respectfully requests that the Court enter an order approving the appointment of Ms. as a paralegal and also enter an order approving the sum of $2,000.00 as compensation for

, plus reimbursement for mileage and other travel expenses, for the purpose of rendering investigative services that are reasonable and necessary for the preparation of the

Defendant’s case.

FDFCDC 199

Counsel for the Defendant

FDFCDC 200 Sample Engagement Letter: Contents of Financial Arrangements

Case name: ______

Case number: ______

The engagement of your services for this case is subject to the following:

(1) You will be compensated at a rate of $ ______per hour [or specify other fee arrangement], and [$ ______per hour for long-distance travel-related time that will be explained in correspondence to you]. The maximum payment amount authorized by the court as of this date for your services in $ ______, which includes any expenses incurred by you.

(2) You will submit your voucher(s) (CJA Form 21 in a non-capital representation and CJA Form 31 in a capital representation) to me, and it is my responsibility as counsel to certify to the court that the services were rendered. Payment for your services is subject to approval by the presiding judge and, in certain circumstances, the chief judge of the court of appeals. Approved payments are made by the Department of the Treasury out of the federal judiciary’s Defender Services account, not by me or my law firm.

(3) The presiding judge (and the circuit chief judge, if applicable) has discretion to reduce a voucher. Specific reasons include: (a) a mathematical error; (b) non-compliance with the Guidelines for Administering the CJA and Related Statutes (CJA Guidelines), Guide to Judiciary Policy, Volume 7, Part A, or court policies; and (c) a determination that the services claimed are reasonable either in terms of the work performed or the amount of time and expenses submitted. Accordingly, this Engagement Letter is not a guarantee of payment for all services rendered or expenses incurred.

(4) Do not perform services or incur expenses that would result in an invoice in excess of the maximum payment amount authorized by the court (as set forth in paragraph (1)). Doing so creates a risk that the court will not authorize the payment for the work done or expenses incurred in excess of the maximum authorized amount, even if the services performed or expenses incurred are necessary. You must advise me before you exceed the court’s maximum authorized payment amount, and if I determine such additional work and/or expenses are necessary for the representation, I will seek approval from the court for a new maximum authorization level, before such work is performed or expenses incurred.

(5) Travel expenses will be reimbursed on the basis of actual expenses incurred. Please consult with me regarding the maximum reimbursement amounts for travel expenses. Airline travel must be authorized by the court by my application. If airline travel is authorized, I will provide guidance to you regarding the purchase of a ticket.

1 FDFCDC 201 Sample Engagement Letter Page 2

(6) Record Keeping – Consistent with Guidelines § 320.90, you are required to maintain contemporaneous time and attendance records for all work/services billed, including work performed by associates, partners, and support staff, as well as expense records. These records should be submitted with your CJA voucher for payment and must be retained for three years after approval of the appointed counsel’s or the service provider’s final voucher, whichever is later.

(7) Unless otherwise authorized by the court, a voucher for services performed and expenses incurred for the representation will be submitted at the conclusion of your services. While the court attempts to process invoices as quickly as possible, there may be delays in payment due to workload and other factors.

(8) Scope of Work – You are authorized to do the following work:

______

Accepted by: ______

Date: ______

2 FDFCDC 202 MAXIMIZING ATTORNEYS’ EFFECTIVE USE OF defenderDATA

Robert L. Boucher Michael L. Tate W. Todd Watson

DISCUSSION OVERVIEW

I. Why defenderData matters to FPD attorneys

II. Components of defenderData

A. Case entry

B. Time entry

III. Using defenderData to improve productivity

A. Ticklers, alerts, scheduling

B. Templates, other documents

C. defenderData on the go

FDFCDC 203 D. Reviewing time

E. Searching for defendants

F. Other features

FDFCDC 204 3/28/2017

Frank Dunham CASE WEIGHTS FOR Conference, April 7, 2017 FEDERAL DEFENDER Charlottesville ORGANIZATIONS VA

DDATA QUALITY CONTROL

FDFCDC 205 1 3/28/2017

WHY DOES DDATA MATTER TO YOU?

 Your salary depends on it.

 The entire office’s budget depends on it.

 Your input determines the staffing for your office, including your own position.

 Without quality data, your office stands to lose attorneys and support staff.

TWO MAJOR COMPONENTS FOR ATTORNEYS

1. Case Entry . The entry of charges determines the case weight 2. Time Entry . The entry of time affects the weights those cases receive in future years

FDFCDC 206 2 3/28/2017

QUALITY CONTROL FOR CASE AND TIME ENTRY IS THE KEY TO VALID DATA

Mistakes that generate inaccurate case weights can poison the data pool.

IN THE DEEP PAST (PRE-2011): FDO ESTIMATES OF CASELOAD

 Federal Defender Organization (FDO) estimates UNWEIGHTED closings for next FY.

 DSO sets budgets.

 Defender Services Committee evaluates and enacts.

 The End.

FDFCDC 207 3 3/28/2017

CHANGE IN FTE PRIOR TO CASE WEIGHTS

Predict Year One’s DSBS and DSC Year Two Reps CLOSED evaluate FTEs

District A FTE Each District predicts ↑ ↑ Predicts Unweighted Reps Closed for Year Two District B FTE predicts ↓ ↓ How close FTE District C was Year One predicts ↔ ↔ prediction?

FY-2011: ATTORNEY TIME FORMS CASE WEIGHTS

 Attorney time – more reliable

 Relative weights rather than absolute

 5-year Average Weighted Cases Opened (WCO) per Attorney

FDFCDC 208 4 3/28/2017

FY 2011: WCO DRIVES FTE

Base WCO/ATTY Change in Following FY WCO over FY

WCO FTE District A ↑ ↑

District B WCO FTE ↓ ↓

WCO FTE District C ↔ ↔

STAFFING FORMULAS: CHANGE IN FTE

Staffing Formula Methodology Base (SY 10-14) Cohort Formula 5-year avg WCO Following FY WCO/FTE Avg FTE thru March District F-Dist. WCO FTE A A ↑ ↑ Avg. (WCO District /FTE) B F-Dist. WCO FTE B ↓ ↓ District C F-Dist. WCO FTE C ↔ ↔

FDFCDC 209 5 3/28/2017

CASE WEIGHT UPDATE: CRITICAL FACTORS

 Representation only captured if there is a case type

. Drug court, veterans court, etc.

 New weights in time for next formula refresh.

 CRITICAL that representations are opened accurately. . Correct case type

. Follow rules on whether to open

 Everyone needs to follow same path.

ADDING ALL CHARGES TO DDATA

 Benefits . Improved Case Weight. While not all cases will improve in case weight, some may very well increase in WCO reported for the Organization. . A more accurate RAND Study. RAND study can more accurately calculate case weights when all charges are entered and time can be associated to these case types which may otherwise be under reported.

 Costs . Requires a higher attention to detail charging beyond just scanning indictment headings.

FDFCDC 210 6 3/28/2017

ADDING ALL CHARGES FROM CHARGING DOCUMENT

1.06 WCO …

1.17 13 WCO

CASE OPENING AND UPDATING QUALITY CONTROL

 Quality Control Measures . Initial Charging Document Review . Enter ALL Charges in dData. . Any opening questions should be forwarded to one source for consistency. . Charges can and should be updated until 15th of the following month . This is where attorney involvement matters – attorneys need to make sure that the case entry is correct and captures all known charges. . As changes occur, the attorney is best situated to notify staff to make changes.

FDFCDC 211 7 3/28/2017

EXAMPLE: ENTERING CONTROLLED SUBSTANCE CHARGES (REQUIRES ACCURATE DRUG ENTRIES)

HANDLING COMPLAINT CASES

 Staff can create a dData Case Opening Page tickler alert . In case opening page, open Notes at page bottom . Choose Topic, e.g., “Additional Opening Information” . Enter Note, e.g., COMPLAINT CASE – check for Indictment before export! . Select users to be alerted – dData will generate an email Click ok and save  Attorneys monitor changes in case

FDFCDC 212 8 3/28/2017

CAPTURING THE UNUSUAL CASE

. A report called a JS-50 is generated and provided to the A.O. . This report is exported to the A.O. on the 15th of the month. . TYPICALLY: Exported data should be considered set in stone. . Most cases, even where charges are added, fall into this category . HOWEVER: A highly unusual case should be taken to your Defender for further review with the A.O.

FDFCDC 213 9 3/24/2017

defenderData How can I take advantage of defenderData to improve productivity?

Case Search by Case Team member

FDFCDC 214

1 3/24/2017

Ticklers

3  For more details, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Windows > 00:37:37 - 00:38:20

Alerts and Tasks

 For more details, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Windows > 4 00:38:21 - 00:40:26

FDFCDC 215

2 3/24/2017

Scheduled Events

 For more details, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Windows > 5 01:20:30 - 01:29:19

Templates

 For more details, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Windows 6 Focused Training > Templates

FDFCDC 216

3 3/24/2017

Documents Tab (inside each case)

7  For more details, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Windows > 01:40:15 - 01:46:39

Case Search > Auto Docs > Batch Docs from List

8  For more details on auto docs, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Windows > 00:40:27 - 00:42:46

FDFCDC 217

4 3/24/2017

dD Web (for computers or tablets)

 Web address of dD Web: https://dd.fd.org/5999 (from a computer or tablet browser)

 For more details, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Web

dD Mobile (for smartphones)

 Web address of dD Mobile: https://dd.fd.org/5999 (from a smartphone browser)

 For more details, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Mobile

FDFCDC 218

5 3/24/2017

Case File Tab > Print > Case Diary Sheet (for use in court, jail, etc.)

Reviewing your time

FDFCDC 219

6 3/24/2017

Reviewing your time (continued)

Search for existing defendants

14  For more details, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Windows > 00:57:24 - 01:01:00

FDFCDC 220

7 3/24/2017

Shortcut keys

15  Full list available at: http://help.justiceworks.com/dd_us_dso/quick_reference_guide.htm

Disabling the 30 minute dD Idle Timeout

16  For more details, watch: http://help.justiceworks.com/dd_us_dso/ > Staff Training > dD Windows > 01:29:20 - 01:32:22

FDFCDC 221

8 3/24/2017

We invite you to watch relevant portions of the many pre-recorded dD trainings anytime in your phone, tablet, or computer browser (no VPN required)

 There are a wide variety of videos available at: http://help.justiceworks.com/dd_us_dso/ > Staff 17 Training

FDFCDC 222

9 NEUROPSYCHOLOGY AND SENTENCING MITIGATION: THE NEW FRONTIER

Bernice A. Marcopulos, Ph.D Beatrice H. Capestany, Ph.D Fay F. Spence

DISCUSSION OVERVIEW

I. What is neuropsychology?

II. When should you get a neuropsychologist to evaluate your client?

III. How can a neuropsychology report help to mitigate your client’s sentence?

FDFCDC 223 3/28/2017

Neuropsychology and sentencing mitigation: the new frontier

Frank Dunham federal criminal defense conference April 7, 2017

Bernice A. Marcopulos, PhD, ABPP Department of Graduate Psychology James Madison University Department of Psychiatry and Behavioral Neuroscience University of Virginia

Talk Overview

 What is Neuropsychology?

 When should you get a neuropsychologist to evaluate your client?  What kind of case relevant information will they provide?

 Brain injury and criminal responsibility

 Case examples

 Questions/Discussion

FDFCDC 224 1 3/28/2017

Types of Psychologists

 A very diverse group – many specialties

 There are 54 divisions in the national organization of psychologists, the American Psychological Association

 Represent sub-disciplines of psychology, e.g.,

 Clinical

 Industrial/Organizational

 School  Topical areas

 e.g., aging, ethnic minorities, trauma

Clinical Psychology & its variants

 Clinical Psychology  Doctoral degree (PhD or PsyD)  Psychotherapy and assessment  “treating doctors”

 Sometimes expert witness

 Usually fact witnesses

FDFCDC 225 2 3/28/2017

Expert Witness Specialists

 Specialization – a degree in Clinical Psychology PLUS specialized training

 Forensic Psychology  Post doctoral training – typically 1 year  Board certification

 Clinical Neuropsychology  2 year post doctoral training

o Neuroanatomy, Neuropathology, Clinical neurology  Board certification

Definition of Neuropsychology

 From the American Psychological Association Division 40 (Society of Clinical Neuropsychology): “Clinical Neuropsychology is a specialty that applies principles of assessment and intervention based upon the scientific study of human behavior as it relates to normal and abnormal functioning of the nervous system.”

FDFCDC 226 3 3/28/2017

Definition (continued)

“The specialty is dedicated to enhancing the understanding of brain-behavior relationships and the application of such knowledge to human problems.”

What is Forensic Neuropsychology?

 The application of neuropsychology to legal issues that arise in both civil and criminal legal proceedings (Larrabee, 2012)

 Most neuropsychologists do civil work

FDFCDC 227 4 3/28/2017

Criminal Forensic Neuropsychology

 Competency to Proceed  CST (most common)  Plead guilty  Waive one’s right to counsel  Competency to be sentenced  Competency to be executed

Criminal Forensic Neuropsychology

 Mental Status at Time of Offense  “insanity”

 Risk Assessment (e.g., sex offender)

 Death Penalty

 Mitigation

 Sentencing

FDFCDC 228 5 3/28/2017

Brain damage & criminal responsibility

 Did brain damage cause defendant to lack conscious control of actions?

 Lack intent?

 Diminished capacity

Crime and Neuropsychology

. Brain dysfunction VERY common in criminal populations

. Substance abuse

. Learning disability/ADHD . Jail and prison studies* report 25 – 87% of inmates report having experienced TBI. . 2/3rds of murderers had at least one neurological disorder (TBI, epilepsy, Fetal Alcohol Syndrome, dementia, stroke, tumor, etc.) * CDC “Traumatic Brain Injury in Prisons and Jails: An Unrecognized Problem.”

FDFCDC 229 6 3/28/2017

Brain Scans

 Abnormalities found on neuroimaging

 Finding a lesion in someone’s brain is not the entire story  What is the functional significance?

 Relationship to criminal behavior  Does the behavioral effect have mitigating significance?

Contribution of Neuropsychology

 To answer these questions, you need neuropsychological assessment to determine how the brain lesion affects behavior AND

 How the brain related behavior is relevant to the specifics of the case

FDFCDC 230 7 3/28/2017

When to get a Neuropsychologist on the case

 Neurodevelopmental disorders  Intellectual disability (mental retardation)  Autism spectrum  Genetic disorders  ADHD/Learning disabilities

When to get a Neuropsychologist on the case

 Neurological disease  Dementia  Parkinson’s  Huntington's  MS  ALS  Epilepsy  Stroke  Brain tumor  TBI

FDFCDC 231 8 3/28/2017

When to get a Neuropsychologist on the case

 Memory loss

 Difficulty communicating  Understanding and expressing language

 Confusion

 Impulsive behavior

 Serious mental illness  Schizophrenia spectrum disorder

Benefits of Neuropsychology

 Neuropsychological assessment brings specialized expertise

 Knowledge of mental disorders and psychopathology

 The science of brain-behavior relationships and the impact of cognitive impairment on functional abilities

 Expertise in the detection of non-credible self- presentations, as in cases of exaggeration of deficits, feigning/malingering, and poor effort

FDFCDC 232 9 3/28/2017

“Amnesia”

 Defendants who present with presumed memory impairment for the alleged crime are not uncommon

 30% of criminals claim they cannot remember their crimes (e.g. Taylor & Kopelman, 1984; Gudjonsson, Petursson, Skulason, & Sigurdardottir, 1989; Cima, Nijman, Merckelbach, Kremer & Hollnack, 2004)

 Black out or “red out”

Malingering Detection

 One of the more unique and valuable aspects that neuropsychologists bring to CST and other forensic evaluations concern their knowledge of symptom validity testing (Larrabee, 2005)

FDFCDC 233 10 3/28/2017

What is a Neuropsychological Evaluation?

 A neuropsychological evaluation is a comprehensive assessment of cognitive and behavioral functions using a set of standardized tests and procedures.

Assessment Domains • Clinical interview (with both defendants and informants) Presenting problems Daily living skills Social, educational & vocational history Medical history and current status Psychiatric history and current status • Medical record review (if possible) • Cognitive Assessment Intelligence Memory Language Attention Concentration Speed of thinking Spatial skills Perceptual skills Planning & organizing Problem solving Emotional/Personality Issues Motor skills

FDFCDC 234 11 3/28/2017

What a Clinical Neuropsychological exam is NOT

 Neurological exam  Reflexes, nerve testing  Neurologist MD

 Neuroimaging  Neuro-radiologist MD

 Medications  Psychiatrist MD

Finding a Neuropsychologist

 Make sure neuropsychologist has experience with criminal cases  Most neuropsychologists have civil litigation experience  Fewer specialize in criminal cases

 Board certified preferred

FDFCDC 235 12 3/28/2017

Board Certification

 American Board of Professional Psychology  “The mission of the American Board of Professional Psychology is to increase consumer protection through the examination and certification of psychologists who demonstrate competence in approved specialty areas in professional psychology.”

ABPP

 15 specialty boards including Forensic Psychology and Clinical Neuropsychology  Look up board certified specialists in your area on http://www.abpp.org

FDFCDC 236 13 3/28/2017

CASE EXAMPLES

Case #1

 18 year old male charged with Robbery and Possession of Gun in Perpetration of a Violent Crime.

 Probably gang related

FDFCDC 237 14 3/28/2017

Case #1 TBI

 Six months prior to the offense, the defendant rode his bicycle into a truck while eluding police.

 He was treated at Hospital for multiple orthopedic and internal injuries, as well as a skull fracture

 Acting out in jail  Reports hallucinations  Self-injurious behavior

What can neuropsychology offer for this case?

 Discriminating feigned from genuine symptoms  Determining which symptoms are germane for CST/MSO – cognitive, psychiatric, both  Understanding the sequelae from brain injury (i.e., auditory hallucinations common?)  Ascertaining the presence/absence of psychiatric and cognitive impairment

FDFCDC 238 15 3/28/2017

Case #2

 47 year old male corporate executive charged with soliciting a minor

Case #2

 Defendant recently exhibited a personality change

 Wife left him

 Lost his job

FDFCDC 239 16 3/28/2017

Case #2 Test Results

 Diagnosed with frontotemporal dementia, behavioral variant  First signs of this rapidly progressive dementia is personality change, odd behavior, not memory loss  Mis-diagnosed as psychiatric  Poor impulse control  Expect rapid decline

Case #3

 Defendant charged with assault against law enforcement

 Diagnosed with epilepsy

 Seizure at time of crime?

FDFCDC 240 17 3/28/2017

Case #4

 75 year old widower living alone, sufferes a stroke leaving him with prosopagnosia (inability to recognize faces)

 His son comes to visit and walks in the house

 The father does not recognize him, shoots him dead

Sentencing Concerns

 Specialized housing

 Vulnerabilities

 Medical needs

FDFCDC 241 18 3/28/2017

QUESTIONS?

Selected References

1. Aharoni, E., Funk, C., Sinnott‐Armstrong, W., & Gazzaniga, M. (2008). Can neurological evidence help courts assess criminal responsibility? Lessons from law and neuroscience. Annals of the New York Academy of Sciences, 1124(1), 145-160.

2. Ardolf, B.R., Denney, R.L., &. Houston, C.M. (2007). Base rates of negative response bias and malingered neurocognitive dysfunction among criminal defendants referred for neuropsychological evaluation. The Clinical Neuropsychologist, 21(6), 899 – 916. doi: 10.1080/13825580600966391

3. Denney, R. L. & Sullivan, J. T. (Eds.), Clinical Neuropsychology in the Criminal Forensic Setting. New York, NY: Guilford Press.

4. Goldstein, D. S. & Sworowski, L. A. (2013). Mitigation: The role of neuropsychology in sentencing considerations. National Academy of Neuropsychology Bulletin, 27, 1, 16-19.

5. Heck, A. L., & Herrick, S. M. (2007). Geriatric considerations in restoration of competence to stand trial: Two cases of impaired cognition. Journal of Forensic Psychology Practice, 7(20), 73 – 82. doi:10.1300/J158v07n02_06

FDFCDC 242 19 3/28/2017

Selected References

6. LaDuke, C., Haney-Caron, E., & Slobogin, C. The admissibility of neuroscience evidence in criminal cases. The SciTech Lawyer, Volume 11, Issue 2, Winter 2015

7. Marcopulos, B. A., Hedgar, L., Arredondo, B. (2016). Dissociative Amnesia or Malingered Amnesia? A Case Report. Journal of Forensic Psychology Practice.

8. Marcopulos, B. A., Caillouet, B. A. & Tussey, C. M. (2013). The role of neuropsychology in competency to stand trial evaluations. National Academy of Neuropsychology Bulletin, 27, 1, 20-23

9. Melton, G.B., Petrila, J., Poythress, N.G., Slobogin, C., Lyons, P.M., Jr., & Otto, R.K. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY: Guilford Press.

10. Morris, D. R., & Parker, G. F. (2009). Effects of advanced age and dementia on restoration of competence to stand trial. International Journal of Law and Psychiatry, 32, 156 – 160. doi:10.1016/j.ijlp.2009.02.009

Selected References

11. Schiltz, K., Witzel, J. G., Bausch-Hölterhoff, J., & Bogerts, B. (2013). High prevalence of brain pathology in violent prisoners: A qualitative CT and MRI scan study. European Archives of Psychiatry and Clinical Neuroscience, 263(7), 607-616. doi:10.1007/s00406-013-0403-6

12. Schweitzer, N. J., Saks, M. J., Murphy, E. R., Roskies, A. L., Sinnott- Armstrong, W., & Gaudet, L. M. (2011). Neuroimages as evidence in a mens rea defense: No impact. Psychology, Public Policy, and Law, 17(3), 357-393. doi:10.1037/a0023581

13. White, A.J., Meares, S., & Batchelor, J. (2014). The role of cognition in fitness to stand trial: A systematic review. The Journal of Forensic Psychiatry and Psychology, 25(1), 77 – 99. doi: 10.1080/14789949.2013.868916

FDFCDC 243 20 3/28/2017

References

 The MacArthur Foundation Research Network on Law and Neuroscience http://www.lawneuro.org/index.php

Contact Information

Bernice A. Marcopulos, PhD, ABPP Professor Dept. of Graduate Psychology James Madison University 70 Alumnae Drive MSC 7401 Harrisonburg, VA 22807 Ph: 540-568-5002 Fax: 540-568-4747 E-mail: [email protected]

FDFCDC 244 21 3/29/2017

The Use of Neuroscience for Mitigation During Sentencing Beatrice H. Capestany, Ph.D 04.07.2017

Method

• Data = 1,800 judicial opinions (2005-2012)

• Coded 84 variables

• Parallel studies in other countries (Netherlands, England & Wales, Canada)

FDFCDC 245

1 3/29/2017

Judicial Opinions Discussing Neuroscience Used By 350 Criminal Defendants 2005-2012

300 using Homicide (Capital)

250 neuroscience Homicide (Not Capital) in the 200 Other Felony 150 courtrooms is Opinions Judicial of Number increasing 100 50

0 2005 2006 2007 2008 2009 2010 2011 2012 Farahany, 2016 Year Opinion Issued

250 219

200

neuroscience 150 122 raised for many 107 100 94 82 criminal 79 73

50 41 40 charges in non- 34 34 29 20 capital cases 15 13 12 0

FDFCDC 246

2 3/29/2017

Types of Neuroscience Testing Introduced in Cases (2005-2012)

350 300 Interview+ 250 Scan+ 200 History Only No Neurotesting 150 100 50 0 2005 2006 2007 2008 2009 2010 2011 2012 Interview+ 33 29 42 69 77 132 103 107 Scan+ 17 13 20 26 43 34 44 22 History Only 17 9 4 12 7 58 34 33 No Neurotesting 34 54 44 89 56 91 142 90

Distribution of Neuroscience Based Claims in Capital and Non-Capital Cases (2005-2012)

Non-Capital Capital

Percent of claims raised in the studythe inclaims raised Percent of ment. involunt compet toll aggrav. insanity excuse other iac mental mitig. ret. ary . Non-Capital 1% 1% 3% 5% 5% 6% 7% 13% 15% 20% 24% Capital 0.4% 6% 1% 3% 2% 2% 1% 28% 8% 9% 40%

FDFCDC 247

3 3/29/2017

Challenging Competency with Neuroscience in Criminal Cases (2005-2012)

Competency waiver (trial) 9% 77% Other 23% plea 12% confession 2%

Method

• Data = 143 judicial opinions

• Approach = applied thematic analysis Guest, MacQueen, & Namey, 2012 • Analysis Tools = NVivo, MAXQDA

FDFCDC 248

4 3/29/2017

S1: How is Neuroscience Used in Courtrooms? Research Objectives

• How is neuroscience being used during sentencing for mitigation?

• What is the relationship between neuroscience and mitigating circumstances?

• How do judges reason about neuroscience and potentially mitigating evidence? 9

What Kinds of Mitigating Circumstances are Presented?

FDFCDC 249

5 3/29/2017

How Many Mitigating Circumstances are Presented?

What’s the Relationship Between Neuroscience and Mitigating Circumstances?

brain neuro neuroscience testing

history/characteristics 4 1 disadvantaged background 0

disadvantaged background 1 0 history/characteristics 1

childhood trauma 0 2 physical health 4

mental retardation/low IQ 1 3 childhood trauma 5

mental health 9 11 mental retardation/low IQ 6

head trauma 45 7 head trauma 7

substance abuse 0 3 substance abuse 13

physical health 2 3 mental health 19 12

FDFCDC 250

6 3/29/2017

What Are the Types of Claims Raised By Defendants to Argue for Mitigation?

Judicial Reasoning Regarding Mitigation Claims: Claim-Centered

FDFCDC 251

7 3/29/2017

Judicial Reasoning Regarding Mitigation Claims: Defendant-Centered

What Was the Rate of Mitigated Sentences?

FDFCDC 252

8 Journal of Law and the Biosciences, 485–509 doi:10.1093/jlb/lsv059 Original Article Advance Access Publication 14 January 2016 Neuroscience and behavioral genetics in US criminal law: an empirical analysis Nita A. Farahany∗

Law and Philosophy, Duke University, 210 Science Drive, Box 90362, Durham, NC 27708, USA Downloaded from ∗Corresponding author. E-mail: [email protected]

ABSTRACT

The goal of this study was to examine the growing use of neurological http://jlb.oxfordjournals.org/ and behavioral genetic evidence by criminal defendants in US criminal law. Judicial opinions issued between 2005–12 that discussed the use of neuroscience or behavioral genetics by criminal defendants were identified, coded and analysed. Criminal defendants are increasingly introducing such evidence to challenge defendants’ competency, the effectiveness of defense counsel at trial, and to mitigate punishment.

KEYWORDS:Neuroscience, neurobiology, criminal law, behavioral genetics, capital punishment, IAC at Research Triangle Institute on June 30, 2016

I. INTRODCUTION Legal scholars, scientists, and commentators lament the onslaught of behavioral genetics and neuroscience in the criminal courtroom. Fueled largely by anecdotal evidence about the use of bioscience in criminal cases, or media reports of high-profile cases, there is a growing belief that neuroscience has become a mainstay of the US criminal justice system. And while scholars increasingly self-identify as part of the growing fields of ‘law and neuroscience’ or ‘law and the biosciences’, to date only small-scale studies have been conducted on the use of neuroscience and behavioral genetics in the US criminal justice system. One recent study involved an empirical analysis of just those cases in which neuroimaging had been reported in a judicial opinion, with 23 analysed

∗ Professor of Law, Professor of Philosophy, Professor of Genome Sciences & Policy, Duke University; BA, Dart- mouth College; MA, JD, Ph.D., Duke University; ALM, Harvard University. Member, Presidential Commis- sion for the study of bioethical issues.

C The Author 2016. Published by Oxford University Press on behalf of Duke University School ofLaw, Harvard Law School, Oxford University Press, and Stanford Law School. This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact [email protected] FDFCDC 253 486 r Neuroscience and Behavioral Genetics in US Criminal Law cases.1 Other studies have qualitatively, but not quantitatively, assessed the use and impact of neurobiological evidence in criminal law, again relying almost exclusively on discussion of that evidence in published judicial opinions.2 Any examination of the impact of behavioral genetics and neuroscience on the US criminal justice system must begin with a more accurate understanding of how that evidence is currently being used. To better ground the interest and commentary on the use of neuroscience and behavioral genetics (hereinafter neurobiological3 evidence) in criminal law, this article summarizes some findings from the widest scale empirical study on the use of neurobiological evidence in US criminal law to date. Over the past decade, the outcomes of hundreds of criminal cases have been influenced by neurobiological data. Over 1585 judicial opinions issued between 2005 and Downloaded from 2012 discuss the use of neurobiological evidence by criminal defendants to bolster their criminal defense. In 2012 alone, over 250 judicial opinions—more than double the number in 2007—cited defendants arguing in some form or another that their ‘brains made them do it’. Approximately 5 per cent of all murder trials and 25 per cent of death penalty trials feature criminal defendants making a bid for lower responsibility or lighter http://jlb.oxfordjournals.org/ punishment using neurobiological data. While these claims often overstate the science, used responsibly neurobiological evidence has the potential to improve the accuracy and decrease errors in the criminal justice system. Much of the scholarship on neurobiological evidence in criminal law has focused exclusively on either behavioral genetics4 or neuroscience.5 This study looks at these sciences together because the claims are inextricably intertwined. First, scientific developments increasingly link findings from behavioral genetics to neural correlates. at Research Triangle Institute on June 30, 2016

1 Scott N. MacMillan & Michael S. Vaughn, Weighing the Evidence: Neuroimagery Evidence of Brain Trauma or Disorder in Courts,46CRIM.L.BULL. 3 (2010). 2 Eg Diane E. Hoffman & Karen H. Rothenberg, Judging Genes: Implications of the Second Generation of Genetic Tests in the Courtroom, 66 MD.L.REV. 858, 870 (2007); Erica Beecher-Monas, Circumventing Daubert in the Gene Pool,43TULSA L. REV. 241, 248–50 (2007). 3 I use neurobiological to mean evidence about the study of the brain and the nervous system. This includes claims about the ‘normal’ brain, abnormal brain, effects on neurotransmitters, brain structure, function, and genetic contributions to neurological functioning and structure. 4 See eg Deborah W. Denno, Behavioral Genetics Evidence in Criminal Cases,inTHE IMPACT OF BEHAVIORAL SCIENCES ON CRIMINAL LAW 317, 321 (Nita A. Farahany ed., 2009) (behavioral genetics evidence has been introduced ‘in a wide range of ways, but mostly as some sort of mitigating evidence in a death penalty case’); Hoffman & Rothenberg, supra note 2; Beecher-Monas, supra note2. 5 Eg Henry T. Greely, Neuroscience and Criminal Justice: Not Responsibility but Treatment,56U.KAN.L.REV. 1103, 1104 (2008); Teneille Brown & Emily Murphy, Through a Scanner Darkly: Functional Neuroimaging as Evidence of a Criminal Defendant’s Past Mental States,62STAN.L.REV. 1119 (2010); Scott N. MacMillan & Michael S. Vaughn, Weighing the Evidence: Neuroimagery Evidence of Brain Trauma or Disorder in Courts,46 CRIM.L.BULL. (2010); Amanda C. Pustilnik, Violence on the Brain: a Critique of Neuroscience in Criminal Law, 44 WAKE FOREST L. REV. 183 (2009); Laura S. Khoshbin & Shahram Khoshbin, Imaging the Mind, Minding the Image: An Historical Introduction to Brain Imaging and the Law,33AM.J.L.&MED. 185 (2007); Peggy Sasso, Implementing the Death Penalty: The Moral Implications of Recent Advances in Neuropsychology,29CARDOZO.L. REV. 765, 806 (2007); Johanna C. Jennings, Juvenile Justice, Sullivan, and Graham: How the Supreme Court’s De- cision Will Change the Neuroscience Debate, 2010 DUKE L.&TECH.REV. 6 (2010); Stephen K. Erikson, Blaming the Brain,11MINN.J.L.SCI.&TECH. 27, 75–6 (2010); Leona D. Jochnowitz, Missed or Foregone Mitigation: Analyzing Claimed Error in Missouri Capital Clemency Cases,46CRIM.L.BULL. (2010); Michael L. Perlin, ‘And I See through Your Brain’: access to Experts, Competency to Consent, and the Criminal Trial Process, 2009 STAN. TECH.L.REV. 4 (2009); J.W. Looney, Neuroscience’s New Techniques for Evaluating Future Dangerousness: Are We Returning to Lombroso’s Biological Criminality?,32U.ARK.LITTLE ROCK L. REV. 301 (2010); Adam Kolber, The Subjective Experience of Punishment, 109 COLUM.L.REV. 182 (2009). FDFCDC 254 Neuroscience and Behavioral Genetics in US Criminal Law r 487

As a result, the emerging scientific inquiry into human behavior is trending toward a neurobiological approach over a purely genetic or neuroscientific one.6 Moreover, the research in these fields foretells a more integrated future in human behavioral research, whereby genetics and neuroscience are linked rather than compartmentalized. As one telling example, the March 2010 issue of the seminal journal Behavior Genet- ics dedicated a special issue to pathways between gene, brain, and behavior. The 15 articles included in the volume represented the diversity of methodologies applied to the complexity of pathways linking genes, brain, and behavior. The introductory chapter concluded that the breadth of studies proves that tracing the pathways between biology and behavior requires expertise in genetics, neuroscience, psychology, and psychiatry.7 Downloaded from The integration is reflected in the use of behavioral genetics and neuroscience in the criminal justice system. Legal practitioners take a multifaceted approach to characterizing defendants’ behaviors by introducing genetic, neurological, and environmental contributions. Monamine Oxidase A (MAOA), the first gene–environment interaction associated with temperament and antisocial behavior, is a well-studied ex- http://jlb.oxfordjournals.org/ ample.8 Although MAOA was first characterized as a genetic polymorphism, which together with environmental triggers is associated with behavioral variation in antisocial personality, more recent studies link the genetic and neurological correlates of MAOA. Joshua Buckholtz et al. published a study utilizing a combined genetic and imaging approach to the study of MAOA, which implicates a neural circuit for variation in human personality under genetic control.9 Already, a multifaceted criminal defense using MAOA genotyping, and neuroimaging has been introduced into crimi- at Research Triangle Institute on June 30, 2016 nal cases.10 Even assuming differences in scientific methodology and results between behavioral genetics and neuroscience, the substantive legal claims raised are nearly identical when either science is used in a criminal case. As a result in this study sample, anytime behavioral genetics was raised; a neuroscientific claim was also advanced. While neuroscience by far dominates the scientific evidence introduced, the results here include cases where both neuroscience and behavioral genetics are sometimes introduced. With a few notable exceptions, scientists are on the sidelines of these developments in criminal law. Publicly engaged scientists often decry the use of neurobiological

6 Lorraine Caron et al., Nicotine Addiction Through A Neurogenomic Prism: Ethics, Public Health, And Smoking, 7 NICOTINE &TOBACCO RES. 181, 197 (2005) (arguing that societal understandings of nicotine addiction will be shaped by an evolving neurogenomic prism rather than a purely geneticized approach to addiction); Brent Garland & Mark S. Frankel, Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, and Law, 69 LAW &CONTEMP.PROBS. 101 (2006) (considering the commonalities and differences between behavioral genetics and neuroscience as they relate to the criminal law, including topics addressed by both fields, similarities in likely misuse, as well as how each field might be applied in criminal proceedings). 7 William S. Kremen & Kristen C. Jacobson, Introduction to the Special Issue, Pathways Between Genes, Brain, and Behavior,40BEHAV.GENET. 111, 113 (2010). 8 Avshalom Caspi et al., RoleofGenotypeintheCycleofViolenceinMaltreatedChildren, 297 SCIENCE 851 (2002); William Bernet et al., Bad Nature, Bad Nurture, and Testimony Regarding MAOA and SLC6A4 Genotyping at Murder Trials,52J.FORENSIC SCI. 1362 (2007). 9 Joshua W. Buckholtz et al., Genetic variation in MAOA modulates Ventromedial Prefrontal Circuitry Mediating Individual Differences in human personality,13MOLECULAR PSYCHIAT. 313, 324 (2008). 10 William Bernet et al., Bad Nature, Bad Nurture, and Testimony Regarding MAOA and SLC6A4 Genotyping at Murder Trials,52J.FORENSIC SCI. 1362 (2007). FDFCDC 255 488 r Neuroscience and Behavioral Genetics in US Criminal Law evidence criminal law, and call for an outright ban on its use. This is driven in part by concerns about significant methodological obstacles in the study of human behavior. Most basically are problems about consistently defining the scope and characteristics of particular behaviors. How, for instance, should one define violence? What does aggression mean? Does criminal behavior include petty crimes as well as violent ones? Even when scientists do establish a robust and consistent definition for a specific trait they face difficulties in finding reliable measures of those traits in a manner thatsat- isfies acceptable standards of scientific validity, including reproducibility. Measuring complex behavioral traits has been difficult, and as a result difficult to replicate inother studies as well.11 Research into the biological contributions to human behavior face an additional complication: behaviors, which are complex traits and involve multiple Downloaded from genes, regulated by widely varying cellular and neurological mechanisms, are subject to substantial environmental influence. These scientific concerns underscore the study of complex behavioral traits ofinter- est to the criminal law. No single behavior is appropriately characterized as ‘criminal’. Any scientific claim about the biological contributions to criminal conduct begins with http://jlb.oxfordjournals.org/ a narrower focus on the behaviors often implicated by criminal conduct including violence, aggression, and drug and alcohol abuse. Studies of those traits and related traits have likewise yielded only preliminary data that have yet to be well replicated or understood.12 But decrying the use of neurobiological evidence in criminal law seems both futile and counterproductive; neuroscience is already entrenched in the US legal system. And used appropriately, it holds promise of improving decision-making in law. An outright at Research Triangle Institute on June 30, 2016 ban is neither warranted nor productive. But just as neuroscientists go too far in calling for an outright ban, defense attorneys are guilty of overstating the science. Criminal defendants regularly use neuroscience at every stage of the criminal process, from pretrial, to trial, and sentencing determinations. Prosecutors, too, have seized upon cognitive neuroscience to argue that defendants are incorrigible and should be given longer sentences. Neuroscientists can and should play a part in safeguarding these developments. Rather than standing in the way, neuroscientists should educate the public about the responsible use of neuroscience in the courtroom. To empirically ground the dialog about the use of neuroscience in the US criminal justice system, this article is the first comprehensive empirical study of the use of neurobiological evidence in US criminal justice cases. Drawing from data analysed from 1585 coded criminal cases, in which judicial opinions were written and published in Westlaw during 2005–12, this study presents some surprising results and trends in emerging use of neurobiological evidence in criminal law.

II. BACKGROUND The cases collected, coded, and analysed in this study demonstrate a rising useofneu- robiological research in criminal law. That use continues to be haphazard, ad hoc, and

11 Eg KENNETH S. KENDLER &LINDON J. EAVES,PSYCHIATRIC GENETICS 197, 198 (American Psychiatric Publish- ing, 2005) (concluding from aggregate studies in behavioral genetics that the results from behavioral genetics research are often inconsistent across studies). 12 Eg Richard P. Bentall, Psychiatry’s Failed Paradigm,WASHINGTON POST, Jan. 4, 2010 (finding that without exception later studies have failed to replicate findings of genetic links to schizophrenia, or 5-HTTLPR). FDFCDC 256 Neuroscience and Behavioral Genetics in US Criminal Law r 489 often ill conceived. While scientists caution that the neurobiological evidence atissue is weak, particularly for making claims about individuals rather than studying between- group differences, their cautionary advice has largely gone unheeded. Even the gravest decisions, including assessments bearing on deservingness for capital punishment, are beginning to turn on this research.13 Defense attorneys have introduced behavioral genetics and neuroscience in attempts to exculpate criminal defendants, to bolster pre- existing legal defenses, and to mitigate defendants’ culpability and punishment. Prose- cutors have seized upon the double-edged potential of a claimed neurobiological evidence to denigrate defendants’ characters and to demonstrate defendants’ likely future dangerousness. As the science continues to develop, its potential use in criminal investigations, Downloaded from interrogations, and predictions of dangerousness will undoubtedly rise. The discovery of more specific biological and neurological contributions to violence, aggres- siveness, impulsivity, substance abuse, even though highly contestable and indeterminate as a scientific matter, has foreshadowed an inevitable reexamination of the US criminal justice system. Indeed, the United States Supreme Court has al- http://jlb.oxfordjournals.org/ ready become involved in evaluating the relevance of neurobiological evidence to criminal culpability: in September of 2006, it granted certiorari to address, in part, whether a defendant’s genetic predisposition to violence should inform whether he should be sentenced to death for first-degree murder.14 Liberty, justice, privacy, and the structure and purpose of the US criminal justice system are all at issue. A careful and systematic study of the use, perception, current and likely impact of neurobiological evidence on criminal law is essential before its application further at Research Triangle Institute on June 30, 2016 expands.

III. METHODOLOGICAL APPROACH Seventeen law students and three undergraduate students were trained over time on a coding book developed by the author that included 84 variables. The students included second and third-year law students, with varying scientific background. All undergraduate students were majoring in scientific disciplines. The 84 variables are detailed in the coding book with specificity to ensure uniform coding. These variables included, for example, purely identifying information about the case, the purpose for which the behavioral genetics or neuroscience evidence was introduced, the outcome of the case (successful or unsuccessful for the criminal defendant), the state where the case was heard, and the types of attorneys or representation present. Coders were first giventhe coding book, and asked to code a set of four test cases. After coding the four cases, they were trained in detail on the meaning of each variable through an intensive in-person training session with Farahany. They were then given a second set of test cases tocode, and discrepancies were reviewed and discussed with Farahany. Coders were then were given cases in sets of 10 to code, which were spot-checked by Farahany. Subsequent

13 Eg Roper v. Simmons, 543 U.S. 551 (2005) (citing Amicus discussion of adolescent brain development to support finding juveniles less culpable and categorically exempt from capital punishment); Graham v. Florida, 560 U.S. 48 (2010) (finding life imprisonment for juveniles violates the 8th Amendment, citing to neurological evidence about adolescent brains for support). 14 Landrigan v. Schriro, 550 U.S. (2007) (resolving the case on alternate grounds. Opining, in dicta, that genetic predisposition evidence is at best equivocal with respect to criminal culpability). FDFCDC 257 490 r Neuroscience and Behavioral Genetics in US Criminal Law cases were coded separately by two different coders to ensure accuracy. There was less than 5 per cent disagreement between coders, and typically pertaining only to the nature of the claim raised. Farahany reviewed all coding with spot-checking, and resolved any conflicts that arose between the coders. Cases in the study were selected from searches of the Westlaw legal database using the keywords and variations on the words: neuroscience, frontal lobe, hereditary, head injury, pet scan, EEG, fMRI, CT Scan, Brain Disorder, Cognitive Impairment, MEG, NIRS, Brain Scan, Brain, Diffusion Tensor, Heritable, Hereditary, Genetic, Bi- ological, Memory, Frontemporal, and qEEG. The Westlaw databases used included all US Supreme Court, all federal court and all state court. The broad search terms used search yielded over 10,000 opinions per year, which Downloaded from were then scanned for relevance. After excluding cases that did not bear onthe use of neurobiological evidence by a criminal defendant, 1585 cases were included in the study, and all opinions in those cases—majority, plurality, concurring, and dissenting opinions—for a total of 1800 judicial opinions, were coded. Cases in which the scientific evidence focused on the victim or forensic identification were http://jlb.oxfordjournals.org/ excluded.

Limitations of Methodology The legal opinions coded for this study were selected from the Westlaw legal database. Westlaw’s inclusion criteria for judicial opinions are proprietary, unpublished, and may have changed during the study time period. These variations may account for some of the year-to-year differences in the number of opinions discovered. Moreover, thecases at Research Triangle Institute on June 30, 2016 contained therein are primarily appellate opinions, since trial opinions at the state level are often jury verdicts without written judicial opinions. Consequently, the opinions coded may reflect defendants’ failed attempts at using neuroscientific evidence attrial, failure to by defense counsel to investigate or introduce neurobiological evidence at trial, or newly discovered evidence on appeal. The sample may be skewed toward defendants who have already fared poorly in the criminal justice system with their claims. Moreover, more than 90 per cent of criminal cases in the United States never go to trial. Most individuals who are charged with a crime forego their constitutional right to a trial and plead guilty in exchange for a plea agreement.15 Of those cases that do go to trial, while many are appealed, many more are not. Of cases that are appealed, there are narrow legal grounds available for overturning a conviction or setting aside a sentence and procedurally the cases must be raised in that manner. Moreover, investigation into neurobiological contributions to criminal behavior can be costly. In cases where the defendant has adequate resources, or able to secure resources from the state, or as pro bono services, they are more likely to be able to introduce neurobiological evidence. This may skew the kind of criminal defendants who raise claims rootedin neurobiology. These skews may mean the sample of cases here underreports theactual use of neuroscience in the criminal courtroom. And that the cases are skewed toward unsuccessful use of neurobiological evidence. Hence, while the present empirical study significantly advances the ethical, legal and social discussions with respect to theuseof neurobiological evidence in US criminal law, it is still a narrow view of the overall issue.

15 TIMOTHY LYNCH,THE CASE AGAINST PLEA BARGAINING,REGULATION (2003). FDFCDC 258 Neuroscience and Behavioral Genetics in US Criminal Law r 491

IV. RESULTS A. Overview Most studies on the use of neurobiological evidence in criminal cases claim it’s used almost exclusively to mitigate capital punishment and with limited success.16 The findings discussed herein suggest both a broader—and potentially more successful—use of neurobiological evidence in US criminal law. The data show an increasing trend in using neurobiological evidence in criminal cases. Significant differences by state also appear, including the extent to which theevi- dence has been introduced, and the ultimate success of that evidence. These differences

can be explained in part by population differences, and varying legal regimes across Downloaded from states (eg the availability of capital punishment, the type of insanity defense available in the state, or the relevance of a diminished capacity defense). The implications of these statewide differences are important and require more research. Importantly, neurobiological evidence is being used for purposes not yet discussed

or analysed by scholars. For example, while many scholars have discussed the impli- http://jlb.oxfordjournals.org/ cations of using neurobiological evidence for mitigation of criminal punishment, virtually no author has discussed the implications of using it to assess the competency of a criminal defendant. And yet the empirical analysis herein illustrates that the second most common use of biological neurobiological evidence in criminal cases is to challenge competency. The implications of this use, and the relevance of behavioral genetics and neuroscience to competency determinations, are critical areas for further exploration. Finally, while attempts to introduce neurobiological testimony have been relatively at Research Triangle Institute on June 30, 2016 unsuccessful to date, the attempts may have been more successful than most scholars believe. Depending on the type of claim that a criminal defendant raises, testimony by an expert on the matter may serve as powerful evidence that impacts the outcome of the case for the defendant. In short, the fundamental assumptions guiding the current ethical, legal and social inquiry into the use of neurobiological evidence in criminal law are limited and potentially flawed. The goal of this study is to broaden the dialog and bring empirical evidence to bear on the discussion.

B. General Findings 1. Use of Neurobiological Evidence is Increasing in Criminal Cases The number of judicial opinions discussing the use of neurobiological evidence bycrim- inal defendants is increasing year over year (see Graph 1). Contrary to popular belief, many of these cases are ‘not’ capital homicide cases (the prosecutor did not seek the

16 See O. Carter Snead, Neuroimaging and the ‘Complexity’ of Capital Punishment, 82 N.Y.U. L. REV. 1265, 1292–3 (2007) (asserting ‘defendants have enjoyed the greatest success with neuroimaging evidence at the sentencing phase of capital trials in connection with mitigation claims’); Sasso, supra note 8 (concluding neuropsychological evidence is generally used during the sentencing phase); Greely, supra note 5 (predicting biological predisposition evidence will increasingly be used not to diminish responsibility, but to influence sentencing); Erikson, supra note 5 (neuroscience will primarily impact sentencing because defendants will be treated as lacking culpability); MacMillan & Vaughn, supra note 8; Pustilnik, supra note 8; Khoshbin & Khoshbin, supra note 8; E. Spencer Compton, Not Guilty by Reason of Neuroimaging: The Need for Cautionary Jury Instructions,12VAND.J.ENT.&TECH. L. 333 (2010). FDFCDC 259 492 r Neuroscience and Behavioral Genetics in US Criminal Law Downloaded from

Graph 1. Judicial opinions discussing neurobiological introduced by criminal defendants 2005–12. (Homicide (capital) are murder cases in which the prosecutor sought the death penalty. Homicide (not capital) are some degree of homicide (murder, manslaughter) cases in which the death penalty was not at issue. Other felony cases are those in which the http://jlb.oxfordjournals.org/ defendant was not charged with homicide.) C Author, 2016. This image/content is not covered by the terms of the Creative Commons licence of this publication. For permission to reuse, please contact the rights holder. death penalty, or it was unavailable as a sentence in that jurisdiction). Defense attorneys are introducing neurobiological evidence across the board in serious felony cases, and not just in bifurcated capital sentencing hearings following a conviction of first-degree murder. at Research Triangle Institute on June 30, 2016 What started as about 100 judicial opinions per year discussing neurobiological evidence in criminal law in 2005 climbed to around 250–300 opinions in 2012. The quality and not just the quantity of opinions discussing neurobiological evidence has evolved. Opinions earlier in the study often discuss neurobiological evidence as part of a laundry list of other types of scientific evidence introduced. In later opinions, judges spilled substantial ink discussing the neurobiological evidence often in significant detail and with citations to scientific literature and the experts who testified in the case (seeGraph 2). This suggests a shift in both the frequency and the nature of how such evidence isbeing evaluated by judges and juries in criminal cases.

2. Nature of the Offense When Neuroscience Introduced One surprising result is how broadly neurobiological evidence is being by criminal defendants at trial. The popular mantra in academic circles is that the use of neurobiological evidence is primarily a phenomenon limited to capital cases, as mitigating evidence for sentencing. In the sample of opinions studied here, only about 40 per cent of the cases were capital, and a staggering 60 per cent of cases were other serious felony cases. Drilling down further by looking at the most serious crime a defendant was charged with in the sample, it becomes clear that across felony cases neurobiological evidence is being used as part of criminal defenses (see Graph 3). In the 60 per cent of non-capital cases where neurobiological evidence is introduced, neurobiological evidence is also introduced in drug possession and trafficking cases, violent assaults, robbery, fraud, and more. Although this sample likely underrep- resents the prevalence of neurobiological evidence used in criminal cases due to the FDFCDC 260 Neuroscience and Behavioral Genetics in US Criminal Law r 493 Downloaded from http://jlb.oxfordjournals.org/

Graph 2. Degree to which neurobiological evidence is discussed in Judicial opinion. (Mention is in a list of information. Some is less than one paragraph of the opinion. Substantive is one paragraph or more of the opinion discussing the neurobiological evidence introduced by a criminal defendant.) C Author, 2016. This image/content is not covered by the terms of the Creative Commons licence of this publication. For permission to reuse, please contact the rights holder. at Research Triangle Institute on June 30, 2016

Graph 3. Most serious offense charged with when neurobiological evidence raised in non-capital cases, 2005–12. An evaluation of the most serious criminal charge (per case) that the defendant was charged with to illustrate the range of felony cases impacted by neurobiological evidence. C Author, 2016. This image/content is not covered by the terms of the Creative Commons licence of this publication. For permission to reuse, please contact the rights holder. methodological barriers discussed supra, a conservative estimate based on this sample alone is that neurobiological evidence is introduced in at least five to 6 per cent of murder trials in the USA, and 1–4 per cent of other felony offenses.17

17 Based on analysis of Bureau of Justice Statistics and FBI arrestee data from 2005–12. FDFCDC 261 494 r Neuroscience and Behavioral Genetics in US Criminal Law Downloaded from

Graph 4. Neurological testing discussed in criminal opinions 2005–12. (The number of opinions per year in which each time of neurobiological testing is discussed. Interview+= neuropsychological testing/evaluation, as well as medical or other history of head/brain http://jlb.oxfordjournals.org/ trauma; Scan+=some form of brain scanning evidence, neuropsychological testing/evaluation, as well as medical or other history of head/brain trauma; History only = medical or other history of head/brain trauma but no other form of testing discussed in opinion; No neurotesting = no discussion of any form of neurological testing introduced in opinion.) C Author, 2016. This image/content is not covered by the terms of the Creative Commons licence of this publication. For permission to reuse, please contact the rights holder. at Research Triangle Institute on June 30, 2016 3. Type of Neurobiological Evidence One explanation for differences in the findings of this study versus other empirical studies on the use of neurobiological evidence is a difference in what ‘counts’ in these studies as neurobiological evidence. In this study, the neurobiological evidence includes medical history (such the use of past medical records or medical history of head injuries or brain damage), neuropsychological testing (through interviews, battery of testing, and/or evaluation of the defendant), brain scanning of the defendant, or assertions that the defendant suffers from brain or head injury. Notably, only about 15 per cent of the cases where neurobiological evidence was raised in the sample had any form of brain scanning discussed in the opinion (see Graph 4). A large proportion of the cases (nearly 40 per cent) have no discussion of neurological testing in the opinion, even though the defendant staked their defense in part on a claim that ‘his brain made him do it’.18 Of course, it’s entirely possible that the judicial opinion did not discuss the specifics of testing that actually was introduced in the criminal case, so this is a conservative estimate of testing introduced. In the 15 per cent of cases that included a discussion of brain scanning in the opinion, the type of scanning was most often MRI or CAT scans, rather than more sophisticated functional neuroimaging such as EEG, SPECT, or fMRI scanning (see Graph 5). Func- tional magnetic resonance imaging (fMRI) was discussed in about 2 per cent of the 15 per cent of scanning cases, but in each of the cases the fMRI evidence was not admitted

18 A next step in this analysis would be to obtain all of the original records from trial, rather than relying on a discussion of the evidence introduced in the judicial opinion, as the cases may have included forms of evidence that supported the neurobiological claims not discussed in the opinion. FDFCDC 262 Neuroscience and Behavioral Genetics in US Criminal Law r 495 Downloaded from http://jlb.oxfordjournals.org/

Graph 5. Distribution of neuroimaging discussed in Judicial opinion 2005–12. (In the at Research Triangle Institute on June 30, 2016 opinions where neuroimaging was introduced, the type of neuroimaging. SPECT = single-photon emission computed tomography; qEEG = quantitative electroencephalography; fMRI = functional magnetic resonance imaging; Unknown = brain scanning discussed but type not mentioned; BEAM = sometimes known as qEEG, brain electrical activity mapping; CAT = computed tomography; EEG = electroencephalography; MRI = magnetic resonance imaging; PET = positron emission tomography.) C Author, 2016. This image/content is not covered by the terms of the Creative Commons licence ofthis publication. For permission to reuse, please contact the rights holder. into the case for further consideration because of concerns about scientific reliability, credibility, or relevance.

C. Context for the Introduction of Neurobiological Evidence 1. Pretrial One surprising finding is the extent to which neurobiological evidence is used inpre- trial proceedings (see Graph 6). In pretrial proceedings, the subjective mental state and competency of the defendant can be contested. At this phase of trial, neurobiological evidence may offer a way to improve subjective competency evaluations. Judges typically engage in a colloquy with a defendant and rely upon their own perception of the defendant, together with mental health evaluations, to rule on the defendants’ competency. Neuropsychological testing, neurological history, and neuroimaging may meaningfully and appropriately improve such judgments and perceptions. FDFCDC 263 496 r Neuroscience and Behavioral Genetics in US Criminal Law Downloaded from http://jlb.oxfordjournals.org/

Graph 6. Distribution of neurobiological evidence-based claims in capital and non-capital cases, 2005–2012. (The denominator is all claims raised in the study sample. The numerator is the specific type of claim. E.g. for mental retardation, 1% of the claims raised inthestudy sample were for a claim of mental retardation in a non-capital case.) C Author, 2016. This image/content is not covered by the terms of the Creative Commons licence of this publication. For permission to reuse, please contact the rights holder. at Research Triangle Institute on June 30, 2016

a. Competency. The United States Constitution forbids the trial of a defendant who lacks mental competency. The test for competency to stand trial is whether a criminal defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.19 At any point during a trial, the competency of a defendant can be challenged, but it often arises as a pretrial issue, to address whether the defendant has the present ability to proceed.20 Finding a criminal defendant incompetent to stand trial does not necessarily mean that he is set free. Rather, he may be indefinitely detained in a psychiatric facility until he is rendered competent, or if he never is, remain there until he no longer serves as a present danger to himself or to others.21 The data here show a frequent use of neurobiological evidence to challenge defendants’ competency during criminal proceedings. In 15 per cent of the neurobiological evidence-based claims raised in the study sample, the defendant argued that something unique about his brain rendered him incompetent to proceed during the criminal case. Of the 15 per cent of all of the claims in the study pertaining to competency, 77 per cent of those challenged the competency of the defendant to stand trial. A smaller but

19 Dusky v. United States, 362 U.S. 402 (1960). 20 Stephen L. Golding & Ron Roesch, Competency for Adjudication: An International Analysis, in 4 LAW AND MEN- TAL HEALTH:INTERNATIONAL PERSPECTIVES 73, 109 (David N. Weisstub ed., Pergamon 1988). 21 JOHN MONAHAN &HENRY J. STEADMAN (eds.), MENTALLY DISORDERED DEFENDANTS:PERSPECTIVES FROM LAW AND SOCIAL SCIENCE, 48, 49 (Spring Science+Business Media, LLC, 1983). FDFCDC 264 Neuroscience and Behavioral Genetics in US Criminal Law r 497 Downloaded from

Graph 7. Nature of competency claims raised when neurobiological evidence introduced by criminal defendants. C Author, 2016. This image/content is not covered by the terms ofthe

Creative Commons licence of this publication. For permission to reuse, please contact the http://jlb.oxfordjournals.org/ rights holder. increasing proportion of claims focused upon the defendant’s lack of competency to waive his rights, to plead guilty, or to have confessed to the crime or crimes at issue (see Graph 7). Consider for example the case of Miguel Angel Ruiz, who was found incompetent to stand trial based on neuropsychological testimony about his brain disorders.

In February 2007, 17-year-old Miguel Angel Ruiz (Ruiz) was charged with murdering at Research Triangle Institute on June 30, 2016 his mother. In January of 2008, a trial court suspended criminal proceedings against Ruiz to assess his competency to stand trial. After a hearing and a subsequent jury verdict finding Ruiz competent to stand trial, the trial judge set aside the verdict and concluded that there was no reasonable, credible evidence to support a finding that Ruiz was competent. He issued a judgment to that effect notwithstanding the jury’s verdict. 22 Ruiz presented testimony from two neuropsychologists who had performed a battery of tests on him. The prosecution introduced evidence from correctional officers who had interacted with Ruiz while he was awaiting trial.23 One of the defense experts diagnosed Ruiz with a severe language disorder that arose from an organic brain-processing deficit that interfered with his language skills. Asa result, he had severe inability to converse, explain, or impart information, all critical elements of being able to assist in his own defense.24 Another expert concluded similarly, that Ruiz had a developmental language disorder, specifically that ‘the left part of his brain, which deals with language skills, did not develop as well as the right part of the brain, which deals with nonverbal skills’. The expert believed this was a congenital disorder ‘because a brain injury after birth would have affected his motor skills, whichwere intact’. After administering standard tests to determine if Ruiz was faking his disorder, the expert testified that there was no evidence of malingering.25

22 People v. Ruiz, 2010 WL 298561 (Cal. 5th. Dist. Ct. App. 2010). 23 Id. at ∗1. 24 Id. at ∗1,∗ 2. 25 Id. at ∗3,∗ 4. FDFCDC 265 498 r Neuroscience and Behavioral Genetics in US Criminal Law

The trial judge set aside the determination of the jury, stating ‘I’m not inclinedto set aside a jury’s decision lightly or unadvisedly ... but quite frankly when I received the verdict after hearing the evidence, I was surprised. I just couldn’t believe thejury could return a finding of competency based on the evidence I heard... The testimony of both experts in the court’s mind is very persuasive... And as a result, I’m setting aside thejuryverdictinthismatter’.26 The California Court of Appeals for the Fifth District affirmed the trial court’s decision to set aside the jury’s verdict on finding thedefendant competent to stand trial. While highly unusual to set aside a jury’s finding of fact, neurobiological evidence appears to have powerful factual and persuasive appeal to judges. The result is that in a substantial portion of cases where competency is raised, credible evidence of Downloaded from neurobiological impairment may enable more legitimately impaired defendants to obtain a favorable finding of incompetent to proceed.

(i) Competency to plead guilty http://jlb.oxfordjournals.org/

Similarly and relatedly, the right to Due process under the United States Constitu- tion requires that a defendant’s guilty plea be knowing, voluntary, and intelligent.27 Tra- ditionally, the bar to withdrawing a guilty plea has been quite difficult to surmount. In- deed, guilty pleas are rarely set aside.28 Defendants are using neurobiological evidence to argue that based on their neurological functioning at the time of entering their guilty plea, they did not enter that plea in a knowing, voluntary and intelligent manner. In 2007, for example, Richard Hodges pleaded guilty to possession of cocaine and at Research Triangle Institute on June 30, 2016 residential burglary.29 As the judge engaged in what is known as a plea colloquy, Hodges occasionally appeared lost, asked questions about matters not relevant to the plea process, and exhibited confusion.30 The court ordered a competency determination including a neuropsychological examination and MRI testing.31 The experts concluded that Hodges was faking it. They found no neurological reasons for Richard’s problems and determined his learning abilities were within normal limits. After hearing all of the expert testimony, the judge concluded that Hodges was not suffering from an organic brain disorder.32 In some cases, the court has set aside a guilty plea and remanded the case for an evidentiary hearing on claims of competency to enter a guilty plea.33 In other cases, the court has rejected the neurobiological evidence as contrary to his perceptions of competency based on the plea colloquy. To be sure, attempts to withdraw guilty pleas still largely fail. But it’s interesting to note the extent to which claims about the involuntariness or lack of competency to have entered a guilty plea are grounded in neurobiology.

26 Id. at ∗6. 27 Santobello v. New York, 404 U.S. 257, 261–2 (1971). 28 Wesley M. Oliver, The Present and Future Regulation of Plea Bargaining: A Look at Missouri v. Frye andLaflerv. Cooper,CATO SUPREME COURT REVIEW, 257, 280 (2011–2012). 29 State v. Hodges, 156 Wash. App. 1015 (Wash. Ct. App. 2010). 30 Id. at ∗3. 31 Id. at ∗1. 32 Id. 33 See eg Arseneau v. State, 77 So. 3d 1280 (Fla. 2012). FDFCDC 266 Neuroscience and Behavioral Genetics in US Criminal Law r 499

This is an area to watch over time to see if framing these issues as ‘brain disorders’will have an effect on case outcomes.

(ii) Competency to confess

In a much smaller portion of the defendants use neurobiological evidence to exclude evidence of past confessions. A particular difficulty for defendants raising these claims is the inability to go backward in time using present neuropsychiatric testing to understand the defendant’s competency when questioned months or years prior to being evaluated. Daniel Thomas,34 for example, was stopped for a traffic violation when the police Downloaded from officer noticed the smell of marijuana and a large blanket draped over whatseemed to be a big square object in the back seat. A search of the car found 110 kilograms of marijuana. Thomas was arrested, and waived his Miranda right to remain silent. He gave incriminating statements to the police, including a written statement. Later, he sought to suppress the evidence of his written confession, arguing that when he waived his right http://jlb.oxfordjournals.org/ to remain silent he did not do so voluntarily, knowingly, or intelligently because he was suffering from severe migraine headaches and brain injury. A neuropsychologist testified at Thomas’s suppression hearing that a brain injury could cause a degree of cognitive impairment that under stress would manifest more symptoms. These symptoms could include problems with attention, concentration, and memory. In combination with stress and sleep-depravation, Thomas’s brain injury

might impair his attention and concentration, and that poor attention in turn could im- at Research Triangle Institute on June 30, 2016 pair his ability to process information. Thomas would be more likely to lose focus and be more vulnerable to distraction. He would have a reduced ability to knowingly and intelligently waive his rights. The judge acknowledged that the expert accurately described a person withtrau- matic brain injury but believed other evidence established that Thomas had adequate memory and intelligence to voluntarily, knowingly, and intelligently waive of his Mi- randa rights. The judge pointed to the time lapse before he wrote out his confession, and the counterexpert who said that given the defendant’s educational and professional background such a deficit could not be considered a significant impairment. Basedon the objective observations of the defendant’s capacities, the court was unconvinced that defendant’s brain injury impeded his ability to knowingly and intelligently waive his rights. This appears to be a rather typical outcome in these cases. Because the present neurobiological evidence may have little bearing on the defendant’s actual competency to have confessed at the time of the crime, courts may give neurobiology little weight particularly in comparison to other circumstantial evidence that bears on the defendant’s likely capacities at the time. b. Insanity. Although it captures popular imagination, the insanity defense is raised infrequently and notoriously difficult to prove.35 Although the precise requirement of the insanity defense varies by jurisdiction, an approach common to many states is the

34 U.S. v. Padilla and Thomas, 2010 WL 1719367 (D. Arizona 2010). 35 Randy Borum & Solomon M. Fulero, Empirical Research on the Insanity Defense and Attempted Reforms: Evi- dence Toward Informed Policy,23L.&HUM.BEHAV. 375, 378 (1999). FDFCDC 267 500 r Neuroscience and Behavioral Genetics in US Criminal Law requirement that the defendant have a complete lack of understanding of the difference between right and wrong. This legal standard can be exceedingly difficult to establish, since mental illness typically results in some degree rather than complete impairment of understanding. Jurors also tend to overcredit claims that a defendant is faking (malingering) their impairment. Although the first issue, the legal standard of insanity, is nearly impossible to overcome, to whether the defendant is malingering is an area that neurobiological evidence may inform.36 It is for this second purpose—bolstering claims of mental illness—that defendants used neurobiological evidence in about four per cent of the claims analysed in the study. Consider the case of Mr Chavez, who seemed to have a psychotic break while carrying a metal pole.37 Perched at a busy intersection on the sidewalk and armed with a Downloaded from metal pipe, he menacingly approached cars as they stopped at a red light harassing them by asking ‘Is this your car? Is this your car?’while hitting the windows of the car.38 The victims later testified that Chavez looked ‘kind of crazy’ and ‘evil looking’. Whenthe police arrived, Chavez told the officer to ‘shoot him as he was going to smash him’.39 He was ultimately arrested. At trial, his defense counsel argued that Chavez was legally http://jlb.oxfordjournals.org/ insane during the incident and introduced expert testimony that he was suffering from schizopaffective disorder of a bipolar type and a manic break at the time of the offense. A neuropsychologist testified that Chavez had a dysfunction in the frontal lobe region of his brain with an IQ of 79. A PET scan of defendant’s brain revealed certain abnormalities in the left lateral frontal area. The state’s expert countered that Chavez’s mental illness had no impact on his ability to understand the nature and quality of his acts, and to know that his acts were wrong at Research Triangle Institute on June 30, 2016 when he committed them, focusing on the legal concept of insanity. With regard tothe incident involving the deputy, the state’s expert opined that the defendant intentionally attacked the deputy because he didn’t like what he was being told, defendant’s awareness of what he was doing and that it was wrong. The jury found Chavez sane and convicted him for assault on the police officer.This example underscores that while neurobiological evidence may bolster a finding of mental illness or impairment, the legal standard for insanity may still remain an insurmount- able hurdle for most defendants. And yet, neurobiological evidence can and has assisted some criminal defendants with their claims of legal insanity. A particularly telling case is highlighted in the 2011 opinion in the case of Thomas Curtis vs. the State of Indiana. In December 2009, Cur- tis was charged with murdering his wife.40 In 2010, Curtis filed a notice of intent to introduce the insanity defense and the trial court appointed a psychologist and a psychiatrist to evaluate him. Both experts testified that they believed Curtis was insane at the time he killed his wife. The trial court nevertheless found Curtis guilty but mentally ill (‘GBMI’).41 Both the psychologist and psychiatrist who evaluated Curtis thought he

36 See Nita A. Farahany & James E. Coleman, Jr., Genetics and Responsibility: To Know the Criminal from the Crime, 69 L. & CONTEMP.PROBS. 115, 126 (2007). 37 People v. Chavez, 73 Cal. Rptr. 3d 189 (Ct. App. 2d CA 2008). 38 Id. at 189, 192. 39 Id. at 189, 193. 40 Curtis v. State, 925 N.E.2d 887, ∗1 (Ind. Ct. App. 2011). 41 States have attempted to reduce verdicts of not guilty by reason of insanity by allowing the alternative verdict of guilty but mentally ill (GBMI). This is meant to serve as an intermediary sentence between guilty andnot FDFCDC 268 Neuroscience and Behavioral Genetics in US Criminal Law r 501 was unable to appreciate the wrongfulness of his conduct. Both believed he suffered from PTSD from his time in the military, and ‘organic brain injury’.42 Upon review of the trial judge’s decision to enter a GBMI verdict the appellate court found that there was neither expert nor lay opinion that Curtis was sane at the time he killed his wife. In- stead, the trial court had been swayed by the inadequacy of available treatment noting that in a state hospital Curtis would be ‘kicked out as soon they can’, and ‘then there’s no guarantees’. The trial court rejected ‘the insanity defense after concluding thatthe defendant could continue to be a danger to society because of an inadequate State mental health system’.43 Although sympathetic to the trial court’s concern, the appellate court credited the uncontroverted evidence of legal insanity, reversed the judgment of GBMI, and remanded the case for an entry of not guilty by reason of insanity and the Downloaded from appropriate commitment proceedings.44 The trial court’s concern is echoed throughout the study opinions. While neurobiological evidence may be compelling evidence to bolster a finding of incompetency or insanity, without adequate mental health treatment options available courts and juries are left to struggle with how to appropriately weigh the evidence while also safeguard- http://jlb.oxfordjournals.org/ ing the community writ large from an admitted and potentially untreated or untreatable dangerous neurobiological predisposition. 2. Judging Guilt Neurobiological evidence has been considerably less helpful in determining whether a defendant has committed a crime. Neurobiological evidence is often used tochal- lenge the folk psychological beliefs underlying criminal law: that actions are voluntary at Research Triangle Institute on June 30, 2016 and the product of conscious choice. The alternative—that actions arise from unconscious predispositions over which an individual has little control—has made little in- roads in criminal law. Most basically, the concepts of voluntariness and intentionality in law don’t map well onto how those concepts are understood by scientists. Nor does a theory that individuals are automatons and unable to control their actions align well with our subjective experiences of self-directed decision-making. Finally, the science— usually population-level science (such as a correlation between neurological or genetic variations and behavioral variations across a population)—doesn’t tell us much about why any particular individual behaved as they did. As a result, attempts to use neurobiological evidence for determinations of guilt or innocence seems to make far less of an impact than attempts in pretrial and sentencing determinations. a. Involuntariness. In about 4 per cent of the study-sample claims (∼7 per cent of the judicial opinions) defendants argued that their neurobiology made them act involuntary. Typically, this involved a claim of involuntary conduct following the voluntary ingestion of drugs or alcohol. These claims appear to be non-starters. Prosecutors start out ahead as a matter of law in proving that a defendant acted voluntarily. Criminal law grants a strong presumption that defendants act voluntarily. This

guilty by reason of insanity, although in practice it may not result in a different sentence than a guilty verdict. See eg John D. Melville & David Naimark, Punishing the Insane: The Verdict of Guilty but Mentally Ill,30J.AM. ACAD.PSYCHIAT.LAW 553, 555 (2002). 42 Curtis v. State, 925 N.E. 2d 887, ∗2 (Ind. Ct. App. 2011). 43 Id. at ∗5. 44 Id. at ∗4. FDFCDC 269 502 r Neuroscience and Behavioral Genetics in US Criminal Law presumption means that the defense that a person acted involuntarily will only succeed in a narrow set of circumstances. The defense of ‘involuntariness’ is recognized if ade- fendant’s actions were a reflex or convulsion, a bodily movement arising from unconsciousness, sleep, hypnosis, or by some factor other than actor’s will.45 These automatism cases are legal freaks, but a growing chorus of scientists argues that they should serve as a paradigm; decision-making is primarily ‘unconscious’, they say. Perhaps, unbeknownst to the chorus, those claims have been featured in criminal courtrooms. Judges are certainly not allowing all of these claims into the courtroom as one opinion about a high-speed car chase makes plain.46 In this case, a police officer saw a known former criminal offender with an outstanding warrant for his arrest at a gas station, and approached him when the defendant returned to his car. 47 The officer asked the de- Downloaded from fendant to step out of the car but the defendant instead instructed the driver to take off. 48 What ensued was a high-speed car chase culminating in the driver stopping in the middle of the street and backing his car into the police officer’s car to injure him. The defendant was arrested and convicted with resisting arrest and assaulting the officer. On appeal he argued that the trial court judge made a legal error in excluding relevant http://jlb.oxfordjournals.org/ expert testimony regarding his head injuries and subsequent blackouts. Eight weeks prior to this incident a tree limb fell on his head. At the time he had a CAT scan and MRI performed on his head and neck. Because of his head injury, the defendant claimed that he was acting unconsciously in a blacked out state of shock during the police chase. The trial judge excluded the neurobiological evidence because it was misleading and irrelevant. A mere failure to remember an event does not excuse its occurrence unless at Research Triangle Institute on June 30, 2016 the failure to remember signifies involuntary or unconscious conduct. No expert supported the neurobiological claim. Instead, the experts agreed that while the defendant had been hit on the head the MRI and other evidence did not support neurological trauma, blackouts, or states of unconsciousness. This case is an exemplar of the claims raised. Nearly 40 per cent of the opinions addressing automatism claims do not discuss any neurological testing of the criminal defendant. Instead, the claims appear to be rooted in past head injuries or other trauma the defendant alleges to have suffered.49 b.MentalStates. It’s all the more important that neuroscientists start talking about the responsible use of neurobiological evidence in law, because it has already influenced jury decision-making about defendants’ mental states. In approximately 10 per cent of all the claims raised in the study, the defendant argued that neurobiological evidence showed he lacked the mental state necessary to commit the crime.

45 Model Penal Code § 2.01. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act. 46 State v. Allsup, 2011 WL 332734, (Ohio App. 3 Dist. 2011). 47 Id. 48 Id. 49 In the 109 judicial opinions discussing claims of involuntariness, 40 of the cases appear to have included no neurological testing and 36 of the 109 (33 per cent) did not mention any expert testimony whatsoever. See eg In the Matter of Brown v. Fischer, 948 N.Y.S.2d 779 (N.Y. App. 2012) (where defendant assaulted nursingstaff taking his blood pressure, he claimed his conduct was involuntary arising from his brain cancer and seizures. While recognizing defendant does suffer seizures, no medical proof linked his seizures to involuntary conduct at the time he assaulted the nurse). FDFCDC 270 Neuroscience and Behavioral Genetics in US Criminal Law r 503

The typical defendant uses neurobiological information to argue that he actedim- pulsively rather than with the premeditation or purpose contemplated by the crime definition. So claimed John Gunther who was charged with first-degree murder ofhis mother in 2008.50 Gunther used a metal pipe to bludgeon his mother to death and she died of blunt force trauma to her head. He did so apparently to steal her money, television, VCR, and jewelry to purchase drugs. He admitted to killing his mother and threatening to do so many time but ‘denied planning or intending to kill her’.51 In support of his claim, two experts testified on his behalf. The first, a clinical psychologist and neuropsychologist, reviewed Gunther’s medical records and evidence of head trauma in 2007 and again in 2008. This medical history together with a series of neuropsychological tests the expert administered supported his conclusion that Gun- Downloaded from ther had damage to his frontal lobe ‘possibly reducing his ability to premeditate or deliberate, and instead causing him to act impulsively on the night he killed his mother’.52 A second expert concurred echoing that Gunther’s brain injuries could explain killing his mother as impulsive and ‘affect[ing] his ability to form mental states such as specific intent to kill his mother, premeditation or deliberation’.53 The jury nevertheless found http://jlb.oxfordjournals.org/ Gunther guilty of first-degree murder, which requires deliberation and premeditation. In reviewing the jury’s determination on appeal the court found the jury reached a reasonable conclusion: ‘Here, the jury reasonably could conclude that Gunther planned to murder his mother. He repeatedly told several people, over an extended period of time,thathehatedher....Heasked[another]tohelphimkillher....Gunther’scon- versations were sufficiently frequent and detailed as to signal his intent to murder his 54 mother, which he eventually did’. at Research Triangle Institute on June 30, 2016 This opinion is consistent with how other courts approach neurobiological evidence when used to challenge mental state. Presented with circumstantial evidence consistent with planning and premeditation and with conflicting neurobiological evidence, judges and juries tend to credit the circumstantial evidence over the neurobiological. This may be in part because of the near impossibility of understanding the defendant’s mental state at the time the crime was committed. Neurobiological evaluations cannot take us backward in time to understand what the defendant was thinking, feeling, or why the defendant acted as he did. It may possibly tell us something about the defendant’s general behavioral predispositions. But the missing link between predisposition evidence and the causes and intentions of any specific actions cannot presently be overcome.55 Moreover, concepts like mental states are narrower in criminal law than the lay perspective may assume. Mental state in criminal law is about the intentionality with respect to the specific act in question. Did the defendant mean to swing the pipe (purpose of the act), understanding the person he was swinging the pipe at was another human being (the circumstances), and that the impact of swinging a pipe at another person would be to cause grave bodily suffering or injury (consequences)? With this narrow understanding of the mental state necessary to convict a criminal defendant, it becomes

50 People v. Gunther, 2012 WL 924846 (Ct. App. 4th. Div.Cl. 2012). 51 Id. at ∗3. 52 Id. 53 Id. at ∗4. 54 Id. 55 See generally David L. Faigman, John Monahan & Christopher Slobogin, Group to Individual (G2i) Inference in Scientific Expert Testimony,81U.CHI.L.REV. 417 (2014). FDFCDC 271 504 r Neuroscience and Behavioral Genetics in US Criminal Law apparent that at least as the law is presently understood neurobiological evidence may provide little support. In only the rare case will neurobiological evidence address the purpose of the act, an understanding of the circumstances or anticipation of the consequences.56 More direct dialog between neuroscientists and attorneys could better inform both groups about how concepts like voluntariness and mental state differ in both law and science, which could lead to more responsible testimony by neuroscientists in criminal cases about the (ir) relevance of neurobiological evidence to determining the voluntariness or mental state of the defendant. Greater engagement by leading neuroscientists in the legal process would substantially improve both judges’ and jurors’ understanding of the limitations of science in answering the questions that law poses in Downloaded from addressing voluntariness and mental state. c. Sentencing. Fundamentally, neurobiological evidence is fueling a societal debate about why we punish people who commit crimes. Do we do so because defendants deserve punishment for their acts of wrongdoing? Do we punish to protect society against dangerous criminals? And if so, would this goal be better served by rehabilitat- http://jlb.oxfordjournals.org/ ing and reintegrating into society those who commit crimes? Although neurobiological evidence cannot answer these philosophical questions for us, it can provide empirical evidence about human behavior that bear on these discussions. And yet, neurobiological data may tell us little about any particular defendant and whether they are deserving of punishment. It’s this concern—that studies do not tell us why a particular person behaved as they did—that seems to motivate many scientists to oppose the use of neurobiological evidence in sentencing. But regardless of whether sci- at Research Triangle Institute on June 30, 2016 entists agree or not about the appropriate role of neurobiological evidence in criminal law, neurobiological evidence seems clearly entrenched in sentencing decisions. Devel- opmental neuroscience has served as the empirical basis for recent constitutional pro- hibitions against the execution of or life imprisonment of juveniles.57 And there may be a coming tsunami of neurobiological evidence-backed sentencing claims at trial. Trial attorneys have already been found ineffective at trial because they failed to investigatea defendant’s probable neurological abnormality (even though defendants rarely prevail otherwise on such claims). Approximately 44 per cent of the neurobiological claims raised were attempts to mitigate sentencing.58 Nearly half of those claims were the defendant arguing he received ineffective assistance of counsel by failing to introduce neurobiological evidence atsen- tencing.59 More than half of the sentencing claims were for capital cases, while the remaining 42 per cent were non-capital cases. To establish a defendant received ineffective assistance of counsel he must show that his attorney acted ‘below an objective standard of reasonableness’, and there wasarea- sonable probability that but for counsel’s unprofessional errors the outcome of the case likely would have been different.60 Defendants can rarely establish both prongs of this

56 See Nita A. Farahany et al., Supra note 36, at 115, 123–5. 57 Eg Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 130 S.Ct. 2011 (2010); Miller v. Alabama, 132 S.Ct. 2455 (2012). 58 820 of the 1861 claims were claims of mitigation. 59 369 of the 820 claims for mitigation were raised as ineffective assistance of counsel claims. 60 Strickland v. Washington, 366 U.S. 668 (1984). FDFCDC 272 Neuroscience and Behavioral Genetics in US Criminal Law r 505 claim. In fact, even when defense counsel has slept through substantial portions of a trial, judges have ruled that defendants did not receive ineffective assistance of counsel.61 It’s particularly notable then that judges have already found that failing to investigate a reasonable probability of a brain abnormality constitutes ineffective assistance of counsel. Even in cases with horrific facts, judges have found neurobiological evidence anes- sential component of counsel investigation. In one case,62 a defendant and his coworker went to a bar in Arizona where they consumed almost two-dozen beers. When they left the bar, they picked up a female victim walking along the side of the road. Eventually, things turned badly between these three and one of the defendants turned a knife on the woman. He sexually assaulted her, slit her throat, stabbed her over 30 times and then Downloaded from left her mutilated body in the desert. He was convicted by a jury of first-degree murder and sentenced to death. He presented volumes of new evidence on appeal about his brain damage and neuropsychological deficits. The court found a reasonable probability that the sentencing judge would have imposed a sentence less than death had the defendant’s counsel obtained and presented an expert evaluation of his neuropsycho- http://jlb.oxfordjournals.org/ logical functioning. The court believed this was ‘powerful’ evidence of mitigation and therefore found that the defendant’s trial counsel had rendered ineffective assistance of counsel by failing to investigate it.63 Such rulings put neurobiological evidence in a rarified position of must-investigate evidence. Defense counsel are ineffective if they fail to mount a defense at all, sleep through an entire (but not just parts of) a trial, or if they fail to investigate a probable neurological abnormality in a defendant. One of these things is not like the others, and at Research Triangle Institute on June 30, 2016 its oddity makes clear that neurobiological evidence is an embedded part of the criminal process. To further underscore this point, consider that it may be entirely reasonable to choose not to introduce neurological evidence because of it’s double-edged potential. When the defendant Connie was convicted64 of burglary, battery, kidnapping, sexual battery with great force, and first-degree murder of 77-year-old woman inherown home, his neurobiological evidence-based defense didn’t just fail, it did so miserably. In the closing statement of the trial, the prosecutor summed up the neurobiological evidence he introduced saying:

So, what are we left with? ... a doctor [] comes in and tells you ... he couldn’t helpit,he was born that way. This man was born evil, born bad, he’s going to be that wayfornow on and there’s nothing I can do except identify it for you. ... he’s got diffuse brain damage and he goes around raping women and beating them up... Well, Ladies and Gentlemen, you decide how much mitigation that deserves. How much weight do you give to he just does it because he does it? 65

61 Eg Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011). 62 Dietrich v. Ryan, 619 F.3d 1038 (9th Cir. 2010). 63 Id. 64 Israel v. State, 985 So. 2d 510 (Florida 2008). 65 Id. FDFCDC 273 506 r Neuroscience and Behavioral Genetics in US Criminal Law

The jury voted 11-1 in favor of the death penalty, and the judge followed theirrec- ommendation.It’sentirelyunsurprisingthatevenupondiscoveringneurobiologicalev- idence defense attorneys may often choose to forego using it as part of mitigation. This is particularly true where civil commitment may later be at issue. Once acrimi- nal defendant has been released from prison he can be involuntarily civilly committed if he continues to serve as a danger to himself or the community. This is most prevalent in cases of ‘sexually violent predators’, which requires proving that a person has a past conviction of a sexual offense, is likely to reoffend, and has a diagnosed mental disorder that makes the person a danger to the health and safety of others. Some of the brain abnormality evidence introduced by a criminal defendant at trial can cut against him at a civil commitment hearing. Downloaded from For example, when a defendant committed a series of sexually violent attacks and was convicted and sentenced to 15 years in state prison, he was sent to a state hospital as a mentally disordered sex offender instead.66 While there, he failed the treatment programs because of his repeated sexual advances to female staff members.67 In a later civil commitment proceeding, the court weighed heavily that the defendant had suf- http://jlb.oxfordjournals.org/ fered a serious head injury when struck in the head by the butt of a shotgun.68 Ayear and a half after the injury, his behavior became more aggressive, and the experts concluded that the brain injury was likely a factor in his crimes.69 Based on this evidence, the court concluded that the defendant’s capacity to control his violent sexual tenden- cies would be seriously impaired if released into the community and committed him to confined institutionalization.70

d. Sentencing for Juveniles. Mitigation by adolescent offenders using neurobiology has at Research Triangle Institute on June 30, 2016 been met with more consistent receptiveness. Ninety-one of the cases in the study pertained to juveniles (about 6 per cent). Eighty-four of those cases used a ‘developing brain’ theory rather than the more individualized neurobiological claims raised by adult offenders. The developing brain theory is about the juvenile brain generally, rather than specifically about the particular offender. These defendants argue that the juvenile brain is still developing—that the frontal lobe region is still underdeveloped and that the brain is not fully myelinated—and that as a result juveniles should be treated less harshly than adults. The fact that the brain is still developing means a juvenile hasless capacity for self-restraint, but also means that their criminal conduct is not representa- tive of how they will behave as an adult with a fully developed brain. In a triology of cases, the United States Supreme Court has cited to evidence about the developing juvenile brain to find it unconstitutional under the Eighth Amendment of the United States Constitution to executive juveniles,71 to impose life without the possibility of parole for non-homicidal offenders,72 or to have a mandatory scheme of life imprisonment without the possibility of parole.73 Since the latest of these cases, Miller v. Alabama, there is considerable confusion and debate by lower courts about

66 People v. Calderon, 2009 WL 428911 (Cal. App. 2009). 67 Id. 68 Id. 69 Id. 70 Id. 71 Roper v. Simmons, 543 U.S. 551 (2005). 72 Graham v. Florida, 560 U.S. 48 (2010). 73 Miller v. Alabama, 567 U.S. (2012). FDFCDC 274 Neuroscience and Behavioral Genetics in US Criminal Law r 507 Downloaded from

Graph 8. Case outcome in adult trials when neurobiological evidence is introduced by defendant. + means the defendant achieved a positive outcome on appeal, whether as a

reversal, remand, or modification of a component of the trial courts’ decision. – meansthe http://jlb.oxfordjournals.org/ defendant did not achieve any positive outcome on appeal. the meaning of that ruling and the extent to which a judge must consider neuroscience when sentencing a juvenile offender.

3. Case Outcomes When Neurobiological Evidence Introduced So how does this neurobiological data fare in criminal cases? Generally, between 20 and 30 per cent of defendants enjoy some success on appeal, in part because of neuro- at Research Triangle Institute on June 30, 2016 biological evidence, in capital case and non-capital case alike. Although a one-to-one comparison of matched cases where neurobiological evidence was not introduced cannot be done to accurately understand how neuroscience impacts case outcomes, the success rate on appeal in these cases appears to be higher than in criminal appeals in general. Comparing the reversal rates in these cases versus all criminal appellate cases, the reversal rate in cases with neurobiological evidence is higher. In a 2010 study of the estimate 69,348 criminal appeals in the US, in only about 12 per cent of the cases did the appellate court reverse, remand, or modify a component of the trial courts’ decision.74 Whereas the success rate in death penalty study cases was 23 per cent (merits and non-merits cases together), compared to the 18.6 per cent success rate in death- penalty merits appeals overall. The success rate in non-capital cases also appears tobe higher in the study cases—the general reversal rate in non-capital cases was 7.7 per cent (merits cases) and 2.3 per cent (without a review of the merits), while the overall reversal rate was 20 per cent in the non-capital cases in the study.75 The reversal rates by specific claim raised are illustrated in Graph 8. We have not been able to locate any comparable data against which the relative success rate in juvenile cases with and without neurobiological cases can be compared. The data from the Bureau of Justice Statistics excludes cases pertaining to juveniles. The study cases show that, in general, the juvenile defendants fared better than adult

74 Nicole L. Waters et al., Criminal Appeals in State Courts, Bureau of Justice Statistics, Sep. 2015, NCJ 248874, http://www.bjs.gov/content/pub/pdf/casc.pdf (accessed Nov. 1, 2015). 75 Id. see Table 1. FDFCDC 275 508 r Neuroscience and Behavioral Genetics in US Criminal Law Downloaded from

Graph 9.

Case outcome in juvenile trials when neurobiological evidence is introduced by http://jlb.oxfordjournals.org/ defendant. Favorable means the defendant achieved a positive outcome on appeal, whether as a reversal, remand, or modification of a component of the trial courts’ decision. Unfavorable means the defendant did not achieve any positive outcome on appeal. defendants, in some categories achieving as high as a 38 per cent favorable outcome on appeal (see Graph 9).

CONCLUSION at Research Triangle Institute on June 30, 2016 The use of neurobiological evidence in criminal cases may draw serious criticism and justifiable concern by scientists. But neurobiological evidence also has improved the criminal justice system through better competency determinations and reconsidera- tions about the role of punishment in society. And neurobiological evidence at times replaceswhat wasevenshoddier evidencethat werelied about to makeinferencesabout the individual capacities and behavior of a criminal defendant. Given the recent rulings about the neurobiological evidence and ineffective assistance of counsel, it’s safe to assume that neurobiological evidence is now a mainstay of our criminal justice system. As a result, it’s time for a more nuanced dialog between neuroscientists, legal decision-makers, and the public about the role of neurobiological evidence in the crimi- nalcourtroom.It’snolonger productivetocallfor outright bans; neuroscientistsshould help to improve public understanding about what neurobiological evidence can and cannot tell us about human behavior. At the same time, the dialog about how neurobiological evidence is being used in criminal cases by legal scholars, commentators, and the media should account for the differences between popular perception and the results of this study. The useofneuro- biological evidence is clearly more widespread and nuanced than previously believed. Some successful efforts are already underway to improve public understanding of law and cognitive neuroscience. To name a few, the Dana Foundation and the Ameri- can Association for the Advancement of Science have launched a Neuroscience in Soci- ety Series that has hosted a number of pertinent events to inform judges and the public about advances in cognitive neuroscience. The John D. and Catherine T. MacArthur Foundation funded a multiyear project on Law and Neuroscience, which includes an FDFCDC 276 Neuroscience and Behavioral Genetics in US Criminal Law r 509 educational component. The Royal Society in London has issued a four-part seriesof accessible reports on the developments in neuroscience and their implications for society, public policy, and law. The Presidential Commission for the Study of Bioethical Is- sues has issued a two-part report entitled “Grey Matters,” that includes a detailed chapter and recommendations on law and neuroscience. Dozens of worldwide academic conferences have been held on the topic. And a recent PBS special entitled ‘Brains on Trial’ engaged neuroscientists, philosophers, and lawyers to educate the public about thesedevelopingtrends.But morecanand should bedoneto engagethepublic onthese issues—after all it is the public who constitutes the criminal jury. Neuroscientists should be at the forefront of this conversation—as experts in criminal courtrooms, in public presentations, through accessible writing for public audi- Downloaded from ences, or by filing amicus briefs in legal cases where neurobiological evidence is atissue. Neurobiological evidence has profound implications for some of the most significant decisions we make in law and policy. It’s time we better understand how it’s being used and start to address how it may be better used in our criminal justice system. http://jlb.oxfordjournals.org/ ACKNOWLEDGEMENTS The author is grateful and indebted to, for the excellent research assistance of Rachel Zacharias, Emma Vail, Michael Dumitru, Christina England, Nicole Franklin, Shannon Fyfe, Lauren Fromme, Erin Frankrone, A.J. Gochenaur, Sara Hartman, Alexandra Kleeman, Stephanie Kostiuk, Ryan Liffrig, Tim Mitchell, Rachel McClure, N. Antonio Niknejad, Sara Notte, Michael Schlepp, and Jennifer Weizenecker. at Research Triangle Institute on June 30, 2016

FDFCDC 277 THIS PAGE INTENTIONALLY LEFT BLANK

FDFCDC 278 ETHICS: GAME SHOW POTPOURRI ROUND IV

Kenneth P. Troccoli Maria Jacob

DISCUSSION OVERVIEW

Note: Paper print-outs of the PowerPoint slides will be available for pick-up at the conclusion of this session and will also be available at the following link: http://vae.fd.org/content/training.

Jeopardy Categories

RPC Definitions Send Lawyers, Guns & Money RPC Rules Common Client Comments Potpourri

I. Undisclosed Recording

A. RPC 4.2 (Communication with Persons Represented by Counsel) B. RPC 4.4 (Respect for Rights of Third Persons) C. LEO 1802 (2010) (Lawful Undisclosed Recording)

II. File Retention

A. RPC 1.6 (Confidentiality of Information) B. RPC 1.15 (Safekeeping Property) C. RPC 1.16 (Termination of Representation) D. LEO 1305 (1989) (Disposition of Clients' Closed Files)

FDFCDC 279 III. Candor Toward the Tribunal, Confidentiality, and Meritorious Claims

A. RPC 1.2 (Scope of Representation) B. RPC 1.4 (Communication) C. RPC 1.6 (Confidentiality of Information) D. RPC 1.16 (Termination of Representation) E. RPC 3.1 (Meritorious Claims and Contentions) F. RPC 3.3 (Candor Toward the Tribunal) G. RPC 8.4 (Misconduct) H. LEO 542 (1984) (Revealing a Contemplated Crime)

IV. Confidentiality and Candor

A. RPC 1.6 (Confidentiality of Information) B. RPC 3.4 (Fairness to Opposing Party and Counsel)

V. Disclosure and Fairness

A. RPC 3.4 (Fairness to Opposing Party and Counsel) B. RPC 3.8 (Responsibilities of a Prosecutor) C. LEO 1862 (2012) (Timely Disclosure of Exculpatory Evidence)

VI. Judicial Criticism

A. RPC 3.5 (Impartiality & Decorum of the Tribunal) B. RPC 8.2 (Judicial Officials) C. In Re. Brown, No. CL09-5166 (Cir. Ct. Norf. 2009)

FDFCDC 280 Risk Management The Monster Called File Retention by Wendy F. Inge

The question of how long a lawyer has to the file is destroyed, continuing to com- require additional years in retention retain client files of closed cases is one I ply with Rule 1.15(e) and creating an times. For example, you should not am still regularly asked by lawyers and index of destroyed files. destroy a file in any of the following their staff. The storage of files, whether situations: physical or electronic, over a long period Malpractice Considerations can be burdensome and expensive. The The exact retention period for any file • Cases for which the malpractice statute need for storage and record management should be determined based on the area of limitation has not yet run (and don’t is familiar to most attorneys. However, of law and nature of the particular mat- forget about the doctrine of continu- because indexing and otherwise ter. Also the statute of limitations for a ous representation); accounting for and storing closed files is malpractice claim and its accrual should • Cases involving a minor client who still an additional business expense, many be considered. In Virginia the legal is a minor when the recommended file lawyers would like to destroy closed files malpractice statute is typically either five retention period ends; as soon as possible. How long must a years for a written contract (engagement • Estate plans for clients who still are lawyer retain the files of former clients? letter) or three years for an oral contract, alive; and the accrual is typically from the date • Agreements to be executed or fully paid Ethical Requirements of the breach of the contract or at the off after the retention period expires; The only express requirement regarding latest when the representation is over. • Files establishing a tax basis; file retention in the Virginia ethics rules Based on these parameters, as a general • Adoption files; applies to trust account records. Rule rule of thumb malpractice carriers will • Support or custody files with continu- 1.15(e) requires that all records required encourage a lawyer to consider a ten- ing support obligations; to be maintained under that rule should year retention period after closing the • Cases with renewable judgments; be retained for five years after the end of file. This can be shifted up or down • Corporate books and records; the fiduciary relationship. For all other depending upon the area of practice. • Files of clients convicted of a capital files, the ethics rules do not direct an For example, criminal matters and other crime; and exact time period; however, Rule 1.16 litigation may appropriately have a • Files of certain “problem clients.” does establish a general duty not to prej- shorter storage life of seven years after udice a client upon termination of the all appeals have expired. On the other File Retention Considerations relationship. Thus, an attorney should hand, real estate matters and wills and Your firm should create a file retention not destroy a former client’s file so trusts should often be kept twenty years policy specific to your areas of practice. quickly that the client’s interests are prej- or beyond because these files may con- It should take into account your ethical udiced. Virginia LEO 1305 states “a tain useful information long after the obligations as set in Rules 1.15(e) and lawyer does not have a general duty to file is closed. Clients may return long 1.16(d) and (e) and LEO 1305, and the preserve indefinitely all closed or retired after the work is done and request malpractice statute of limitations. Notice files.” However, “the lawyer should use copies or information from the file. of the firm’s retention policy should be care not to destroy or discard materials Also, in these two areas of practice an communicated to the client in the or information that the lawyer knows or error or mistake may not surface until engagement letter and in the closing should know may still be necessary or long after the representation is over, letter at the end of the representation. useful in the client’s matter for which the and it is always better to have the file At the end of the representation, when applicable statutory limitations period than not. Domestic matters fit well into the file is being closed the lawyer who has not expired or which may not be the ten-year range unless there are out- handled the matter should review it to readily available to the client through standing issues such as pension and determine what the retention period is another source.” LEO 1305 also provides retirement provisions that will not based on the firm’s policy and whether detailed suggestions for the destruction come to fruition for many years. any exceptions apply that would of client files such as never destroying Because there can be exceptions, the lengthen the period. The file can then go any client property or original legal doc- lawyer should thoroughly review each to staff for further handling; this would uments, preserving confidentiality when file before destroying it. Some situations include things like indexing it as a closed

FDFCDC 281 62 VIRGINIA LAWYER | December 2012 | Vol. 61 www.vsb.org Risk Management file, making sure all of the file is present (including printing any e-mails or other Considerations for deciding whether to keep or electronic documents that need to be discard a client file added to the paper file), making sure all original documents were returned to 1. Unless the client consents, a lawyer should not destroy or discard original items belonging the client, and creating a copy of any to the client. Such items include those furnished to the lawyer by or in behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially documents the firm may want to add to when not filed or recorded in the public records). its forms library for future drafting use. The file should be stored in a safe (try 2. A lawyer should use care not to destroy or discard information that the lawyer knows or to prevent water and moisture damage) should know may still be necessary or useful in the assertion or defense of the client’s position and secure area that protects confiden- in a matter for which the applicable statutory limitations period has not expired. tiality. Based on the closed file index, 3. A lawyer should use care not to destroy or discard information that the client may need, when the destruction date arrives the has not previously been given to the client, and is not otherwise readily available to the client, file should be destroyed in a fashion and which the client may reasonably except will be preserved by the lawyer. that is consistent with protecting confi- 4. In determining the length of time for retention of disposition of a file, a lawyer should exer- dentiality. And the closed file index cise discretion. The nature and contents of some files may indicate a need for longer retention should reflect the date and manner of than do the nature and contents of other files, based upon their obvious relevance and mate- destruction. riality to matters that can be expected to arise. Regarding electronic file storage the same rules for closing the file set out 5. The lawyer should use reasonable means to notify the client of his or her intention to destroy a file and give the client a reasonable time to respond. If the lawyer is unable to locate above apply, and firms should continue the former client the lawyer may destroy items whose retention is not required by law and is to have a file retention policy for elec- not reasonably necessary to the client’s future legal representation. tronic files. While accessing and storage may be easier and more affordable with 6. A lawyer should take special care to preserve, for five years after the end of the representation, accurate and complete records of the lawyer’s receipt and disbursement of trust electronic storage options, uncontrolled funds.(Rule 1.15) volume increases the costs of storage, and as the technology changes the ability 7. In disposing of a file, a lawyer should protect the confidentiality of the contents. to view older records beyond a reason- 8. A lawyer should not destroy or dispose of a file without screening it in order to determine able period of time can become burden- that consideration has been given to the matters discussed above. some. Also, when using electronic storage methods for closed files, make 9. A lawyer should preserve for an extended period an index or identification of the files that sure all parts of the electronic file, the lawyer has destroyed or disposed of. including e-mail and anything that is on See Virginia LEO 1305 and ABA Informal Opinion 1384. paper and needs to be scanned in are added to the electronic file at closing. Electronic storage media should be maintained under conditions that seek to prevent unintentional damage and confidentiality should continue to be protected. Truth be told, the advice shared here is nothing more than a little common sense. The real problem is that it is too easy to overlook these issues in a desire to get to the next active matter. Once matters close, files can quickly move to the out-of-sight, out-of-mind category and the few final administrative/storage steps move into that “we’ll get to it when Wendy Inge is the Virginia risk manager for Liability ALPS, the Virginia State Bar-endorsed we can” to-do list which too often never legal liability insurer. She is available to answer gets properly addressed. A little effort up risk management questions at no charge for all front truly can prevent a major headache members of the VSB. She can be reached at down the road. (800) 367-2577.

FDFCDC 282 www.vsb.org Vol. 61 | December 2012 | VIRGINIA LAWYER 63 LEGAL ETHICS OPINION 542 CONFIDENTIALITY – REVEALING A CONTEMPLATED CRIME.

Client was charged with a first offense of driving under the influence as initially represented to the attorney. However, attorney subsequently determined that his client had been driving a brother's car and had been charged in the brother's name based upon the registration of the car. Client later admitted this to the attorney, stated that he would admit same in court, and asked the attorney to notify the court. Attorney was subsequently asked to postpone the notification to the court. The driving record of the client revealed an extensive list of convictions including a suspension and a second instance of driving under the influence.

Under the requirements of DR:4-101(D), an attorney is required to reveal the intention of his client to commit a crime; first, however, the attorney may try to dissuade his client from the criminal act and encourage the client to notify the court of the error in charges. If the client cannot be dissuaded and the crime involves perjury, the attorney must reveal the error to the court and withdraw from further representation.

If the client commits perjury despite assurances to his lawyer that he would not, the attorney has the duty to disclose the commission of the crime to the court.

The attorney has no obligation to reveal his client's driving record to the court or to the commonwealth's attorney, nor does he have an obligation to reveal his client's perjury to the commonwealth's attorney. [DR:4-101(D), DR:7-101(A)(3), LE Op. 341]

Committee Opinion March 1, 1984

FDFCDC 283 LEGAL ETHICS OPINION 1305 CONFIDENTIALITY – FILES/PROPERTY OF A CLIENT: DISPOSITION OF CLIENTS’ CLOSED FILES.

You have advised that you have slightly over 700 closed files in storage, a majority of which concern cases where you were the court-appointed defense counsel in criminal matters which took place between April 1, 1981 and May 15, 1989. You indicate your concern with costs of rental of storage space and of sending notices or complete files to former clients.

You have asked that the Committee consider first the length of time that clients’ records need to be retained by an attorney who is no longer engaged in the private practice of law, and second, the propriety of disposal of files by shredding, incineration, or landfill burial.

The appropriate and controlling disciplinary rules relative to your inquiry are DR 2-108(D) which enumerates actions which must be taken upon the termination of a lawyer’s representation of a client and DR 4-101(B) which mandates that a lawyer shall not knowingly reveal a confidence or secret of his client. Under the former, the lawyer must take reasonable steps for the continued protection of a client’s interests, including, among other tasks, delivering all papers and property to which the client is entitled. The lawyer is permitted to retain papers relating to the client to the extent permitted by applicable law. With regard to the lawyer’s trust account information, DR 9-103(A) instructs that such records (including reconciliations and supporting records) be preserved for at least five years following completion of the fiduciary obligation and accounting period. Further guidance as to a lawyer’s responsibilities is available through EC 4-6 which instructs that a lawyer must continue to preserve a client’s confidences and secrets even after the termination of his employment and also should provide, for example, for the personal papers of the client to be returned to him.

The Committee has previously opined that the mere passage of time does not affect the ongoing requirement of an attorney to preserve the confidentiality of his client. (See Legal Ethics Opinion No. 812) Furthermore, the Committee has also opined that it is not proper, post- death, for an attorney’s files to be turned over to an institution since the wishes of the client are still a dominant consideration. (See Legal Ethics Opinion 928) Finally, it has been the view of the Committee that the attorney’s responsibility to preserve such confidentiality survives the death of the client. (See Legal Ethics Opinion 1207)

In addressing the issue you have raised, the Committee assumes that no questions have been raised with respect to a lawyer’s retaining lien which has arisen as a result of unpaid legal fees or with respect to ownership of the contents of the files you describe. Such questions, if applicable, would raise legal matters beyond the purview of this Committee.

It is the opinion of the Committee that a lawyer does not have a general duty to preserve indefinitely all closed or retired files. Since neither the Code of Professional Responsibility nor any specific Virginia Statute apparently sets forth specific rules addressing the retention of such files by private practitioners, the Committee, in applying DR 2-108(D) and DR 4-101, as described above, suggests the following guidelines as indicated in ABA Informal Opinion No. 1384. (See also Maine Ethics Opinion 74 (10/1/86), Nebraska Ethics Opinion No. 88-3 (undated), New Mexico Ethics Opinion No. 1988-1 (undated), and New York City Bar Association Ethics Opinion No. 1986-4 (4/30/86)).

Although not required, the Committee suggests the following procedures as cautionary guidelines. Since they are merely cautionary, failure to follow these procedures would not result in any ethical impropriety. The lawyer should screen all closed files in order to ascertain whether they contain original documents or other property of the client, in which case the client

FDFCDC 284 should be notified of the existence of those materials and given the opportunity to claim them. Having culled those materials from the closed files, the lawyer should use care not to destroy or discard materials or information that the lawyer knows or should know may still be necessary or useful in the client’s matter for which the applicable statutory limitations period has not expired or which may not be readily available to the client through another source. Similarly, the lawyer should be cognizant of the need to preserve materials which relate to the nature and value of his legal services in the event of any action taken by the client against the lawyer. Having screened the files for the removal of any materials as indicated, the lawyer may at the appropriate time dispose of the remaining files in such a manner as to best protect the confidentiality of the contents.

In determining the appropriate length of time for retention or disposition of the remaining materials in a given file, a lawyer should exercise discretion based upon the nature and contents of the file. As instructed in DR 9-103(A), however, all trust account and fiduciary records should be maintained for a period of five years following completion of the fiduciary obligation and accounting period. Finally, the Committee is of the opinion that the lawyer should preserve for an extended period of time an index of all files which have been destroyed.

Committee Opinion November 21, 1989

FDFCDC 285 LEGAL ETHICS OPINION 1802 ADVISING CLIENTS ON THE USE OF LAWFUL UNDISCLOSED RECORDING .

A. Introduction

In this opinion, the Committee will address whether it is ethical for a lawyer to advise a client to engage in the undisclosed recording of the communications or actions of another. To address this question, the Committee will review its prior opinions on these issues.

This opinion focuses on the ethical implications of a lawyer advising clients regarding the use of undisclosed recording. Towards that end, the Committee finds it necessary to discuss the legality of undisclosed recording, because many states’ ethics rules or opinions hinge on whether such recording is legal.1 Fundamentally, a lawyer cannot advise a client to engage in conduct that is illegal or fraudulent. Rule 1.2(c). Federal law and more than two-thirds of the states permit “one party consent recording.” This means that undisclosed recording is legal if one of the parties to a communication—the recorder—is aware of and consents to the recording. Virginia Code Section 19.2-62(B)(2) states that “[i]t shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” Under the remaining states’ laws, undisclosed recording is illegal unless all parties to the communication consent to the recordation.2 Finally, subject to some very stringent exceptions, federal and state law makes it a felony to record communications in which no party has consented. In addition, federal and state law makes it a crime to use any communication that has been unlawfully intercepted.

B. Relevant Standards and Rules

The Rules of Professional Conduct adopted by the states, including Virginia and the ABA Model Rules of Professional Conduct, do not specifically address undisclosed recording. However, undisclosed recording does implicate a number of other general ethics rules.3 First and foremost, Virginia Rule 8.4(c) states that it is “professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law.” Prior to the adoption of Virginia Rule 8.4, DR 1-102(A)(4) of the former Virginia Code of Professional Responsibility had a nearly identical prohibition. In 2006, the Virginia State Bar petitioned the Supreme Court of Virginia to adopt comments to Rule 8.4 specifically addressing undisclosed recording.4 However, the Bar’s petition was rejected by a divided Court without comment. Consequently, lawyers must turn to

1 See, e.,g. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 01-422 (2001)(A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules if the act of secretly recording is not illegal in the jurisdiction). See also n.7, infra. 2 Cal Penal Code § 692; Kimmel v. Goland, 793 P.2d 524 (Cal. 1990) (Court adopted a per se ban on lawyer participation and tape-recording calls without everyone’s consent.); Connecticut General Statutes Section 52-570d (makes it illegal and civilly actionable for any person to secretly record an oral private telephone communication by means of an instrument, device or equipment, except under certain delineated circumstances.) See also Conn. Bar Ass’n.Eth. Op. 98-9; Florida Security of Communications Act, § 934.06, Fla. Statutes Annotated; Md. Code § 10- 402 (requires consent of all parties); Mass. Wiretap Statute requires all parties to consent to record. M.G.L.A., ch. 272, §99; see also Commonwealth v. Hanedania, 51 Mass. Ct. App. 64, 742 N.E.2d 1113 (2001). 3 Some states may have explicit language addressing secret recording in commentary to their rules of conduct. 4 At the recommendation of this Committee the Virginia State Bar petitioned the Court to add comments to Rule 8.4 that would have permitted undisclosed recording if the recording: a) is lawful, b) is consented to by one of the parties to the transaction, c) is in furtherance of an investigation on behalf of a client, d) is not effectuated by means of any misrepresentations, and e) the means by which the communication or event was recorded and the use of the recording do not violate the legal rights of another.

FDFCDC 286 this Committee’s prior opinions rather than the Rules for specific guidance on the use of undisclosed recording.

The question presented is whether a lawyer may advise a client to engage in undisclosed recording without violating Rule 8.4(c)’s prohibition of deceitful conduct. Ethics rules that address a lawyer’s duties to clients, third parties, opposing counsel, or the court may also apply to the situation. For example, Rule 4.4 covers respect for the rights of third parties—it prohibits any means of obtaining evidence that violate a third party’s legal rights or have no substantial purpose other than to embarrass, delay, or burden a third person. Because one-party consent recording is not illegal in most states, as long as the undisclosed recording has a reasonable purpose and does not violate the rights of the subject of the recording, it will not violate Rule 4.4. While undisclosed recording may not by itself violate Rule 4.4, it may be coupled with other conduct that may be illegal or unethical. For example, it would be unethical for a lawyer in a civil matter to advise a client to use lawful undisclosed recording to communicate with a person the lawyer knows is represented by counsel. Rule 4.2. Similarly, it would be unethical for a lawyer in private practice to advise a client to employ lawful undisclosed recording under pretextual circumstances, i.e., using conduct involving fraud, dishonesty, deceit, or misrepresentation. Rule 8.4(c).5 Also relevant to the analysis is Rule 8.4(a) because a lawyer cannot violate or attempt to violate the Rules of Professional Conduct by directing a third party, such as the client or an investigator, to engage in conduct prohibited by the Rules. Further, if the undisclosed recording is illegal, Rule 8.4(b) makes it professional misconduct for a lawyer to commit a crime or a deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.6 Finally, Rule 1.2(c) forbids a lawyer from counseling or assisting the client in conduct that is illegal or fraudulent.

C. Prior Legal Ethics Opinions

Many of the states originally issued ethics opinions that adopted the position that undisclosed recording was either generally improper although subject to some limited exceptions or per se unethical.7 Not all states subscribed to this view and, more recently, a number of states have

5 See, e.g. Nissan Motor Co., Ltd. v. Nissan Computer Corp., 180 F.Supp.2d 1089 (C.D. Cal. Jan. 14, 2002) (recordation of conversations between counsel in normal course of civil litigation, without consent, is violation of California penal law and is inherently unethical.) 6 However, lawyers conducting governmental law enforcement investigations may ethically use undisclosed recording in communicating with persons represented by counsel in non-custodial, pre-indictment settings and may use artiface or pretext through the use of “testors” in housing discrimination enforcement investigations to communicate with the targets of the investigation who may be recorded. See Va. Legal Ethics Op. 1738, infra. 7 AK Eth. Op. 91 4, 1991 WL 786535 (June 5, 1991) (No lawyers should record any conversation whether by tape or other electronic device, without the consent or prior knowledge of all parties to the conversation.); SC Adv. Op. 91-14 (July 1991)(An attorney may not advise a client to tape record the client's conversations with his spouse); Minnesota Ethics Op. 18 (1996)(It is professional misconduct for a lawyer, in connection with the lawyer's professional activities, to record any conversation without the knowledge of all parties to the conversation, subject to some exceptions); New York City Bar Ass’n Eth. Op. 1995-10(A lawyer may not tape record a telephone or in- person conversation with an adversary attorney without informing the adversary that the conversation is being taped); Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, Opinion Number 97-3 (June 13, 1997)(An attorney in the course of legal representation should not make surreptitious recordings of his or her conversations with clients, witnesses, opposing parties, opposing counsel, or others without their notification or consent); Supreme Court of Texas Professional Ethics Committee Opinion Number 514 (1996)(attorneys may not electronically record a conversation with another party without first informing that party that the conversation is being recorded); People v. Wallin, 621 P.2d 330 (Colo. 1981) (attorney’s secret recording of telephone conversation of a witness held unethical); In re Anonymous Member of the South Carolina Bar, 304 S.C. 342, 404 S.E.2d 513 (1991)(absolute prohibition: an attorney may not record without consent regardless of the purpose or intent); Indiana State Bar Ass’n Op. 1(2000)(undisclosed recording unethical); Iowa State Bar Op. 83-16 (1983)(undisclosed recording unethical); Comm. on Prof. Ethics & Conduct of Iowa State Bar Ass’n v. Mollman, 488 N.W.2d 168 (Iowa 1992) (attorney’s use of tape recorder to record conversations with former clients as part of attorney’s cooperation with law enforcement investigation held improper); Idaho Bar Ass’n Formal Op. 130 (1989)(prohibits surreptitious tape recording as a violation of Rule 8.4 (d)).

FDFCDC 287 reversed or significantly revised their opinions to allow undisclosed recording.8 Significantly, this Committee’s very first ethics opinion on the subject did not impose a per se or general ban on undisclosed recording, but instead took the view that undisclosed recording only violates ethical rules when it occurs in conjunction with other unethical conduct.

In LEO 1217, we addressed the issue of “whether it is ethical for a Virginia attorney to tape record a telephone conversation occurring wholly in Virginia with opposing counsel in a pending civil litigation, concerning the subject matter of the litigation, without notifying opposing counsel their conversation is being recorded.” We decided that “a lawyer’s engaging in such conduct may be improper and violative of DR:1-102(A)(4) if there are additional facts which would make such tape recording dishonest, fraudulent, deceitful or misrepresentational [sic].” (emphasis added).

Later that same year, the Supreme Court of Virginia decided Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989). In Gunter, a husband hired a lawyer in a domestic relations matter in which he suspected the wife of having an affair. After consulting with the client, the lawyer suggested installing a recording device on the parties’ marital telephone.9 The husband authorized an investigator to install a device that was activated each time the telephone receiver was picked up. The lawyer and investigator listened to these recordings, but did not obtain any evidence of the wife’s infidelity; however, by listening to the tapes, the lawyer did learn that his client’s wife had consulted other lawyers regarding divorce proceedings. She discussed with others the advice she had received. Upon learning through the surreptitious recordings that the wife had possession of some joint tax refund checks, the lawyer advised his client to close a joint

8 Alabama Bar Op. 83-183 (1983); Arizona Bar Op. 00-04 (2000) (An attorney may ethically advise a client that the client may tape record a telephone conversation in which one party to the conversation has not given consent to its recording, if the attorney concludes that such taping is not prohibited by federal or state law.); Hawaii SupCt, Formal Op. 30 (Modification 1995) (not per se unethical for lawyer to engage in undisclosed recording; whether conduct is deceitful must be determined on a case-by-case basis); Mich. Bar Ass’n Op. RI-309 (1998) (Whether a lawyer may ethically record a conversation without the consent or prior knowledge of the parties involved is situation specific, not unethical per se, and must be determined on a case by case basis); Attorney M. v. Mississippi Bar, 621 So.2d 220 (Miss. 1992)(attorney's surreptitious taping of two telephone conversations with doctor who was a potential codefendant in medical malpractice suit did not violate rule of professional conduct, as conduct did not rise to level of dishonesty, fraud, deceit, or misrepresentation); Missouri Bar Ass’n Ethics Op. 123 (3/8/06)(allowing lawyer/participant to tape record telephone communication if it is not prohibited by law); New York City Bar Ass’n Ethics Op. 2003-02 (Lawyers may not routinely tape-record conversations without disclosing that the conversation is being taped, but they may secretly record a conversation where doing so promotes a generally accepted societal benefit);New York County Lawyers' Ass'n, Op. 696 (1993) (not unethical per se for a lawyer to record his or her conversations without the consent or prior knowledge of the other parties to the conversation); NC Eth. Op. RPC 171 (1994) (not a violation of the Rules of Professional Conduct for a lawyer to tape record a conversation with an opposing lawyer without disclosure to the opposing lawyer.); Okla, Bar Ass’n Ethics Op. 307 (1994) (Lawyers have the same rights as other citizens, and may therefore record conversations to which they are a party); Or. State Bar Op. 1999-56 (1999) (if the substantive law does not prohibit recording a lawyer may do it unless his conduct would otherwise cause the other person to believe they are not being recorded); 86-F-14 (a) and Comment 5 to RPC 8.4 which states. "The lawful secret or surreptitious recording of a conversation or the actions of another for the purpose of obtaining or preserving evidence doe not, by itself, constitute conduct involving deceit or dishonesty." In 2003, the Tennessee Supreme Court amended the commentary to Rules 4.4 and 8.4 of the Tennessee Rules of Professional Conduct so as make clear that the secret recording of conversations was not unethical per se. See also State Bar of Texas Legal Ethics Op. 575 (Nov. 2006) (if undisclosed recording is not a crime the Texas RPC do not prohibit a Texas lawyer from making undisclosed recording) overruling State Bar of Texas Op. 514 (1996) (an attorney may not record without the other party’s consent but may advise client that such recording is not a crime under Texas law as long as one participant to the conversation is the recorder; attorneys held to a higher standard); Utah State Bar Ethics Op. 96-04 (Recording conversations to which an attorney is a party without prior disclosure to the other parties is not unethical when the act, considered within the context of the circumstances, does not involve dishonesty, fraud, deceit or misrepresentation); Wisconsin Bar Op. E-94-5 (the Wisconsin RPCs do not support a blanket rule prohibiting or permitting surreptitious tape recording; determination of whether Rule 8.4 has been violated must be fact-specific on a case-by-case basis; routine recording would almost always violate the rule). 9 Both parties were still living in the marital home and the husband was the subscriber to the telephone and the billing account was in his name.

FDFCDC 288 bank account so that the wife could not cash them. The tape recorder was removed out of fear that the wife would discover it. The wife subsequently discovered reports from the lawyer to the client disclosing the fact that her conversations had been recorded. She complained to the state police and the lawyer was indicted for conspiracy to violate the wiretapping statute. Following a jury trial, Mr. Gunter was acquitted, but a district committee brought lawyer disciplinary charges against Mr. Gunter. All of the charges were dismissed by the district committee except one— that Mr. Gunter had engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of DR 1-102(A)(4), which was certified to the Disciplinary Board. Mr. Gunter opted for a trial by a three-judge court which found that he violated the cited rule. Mr. Gunter appealed to the Supreme Court of Virginia.

The Court ruled that the recordation, by a lawyer or by his authorization, of telephone conversations between third persons, to which he is not a party, without the consent or prior knowledge of each party to the conversation, is conduct involving dishonesty, fraud, or deceit under DR 1-102(A)(4). At issue in Gunter was the lawyer’s manner and purpose of the surreptitious, non-consensual recording of his adversary's conversations with others. The recordings made under the lawyer’s direction were made of third parties and without the consent of any parties to the conversation. Although the lawyer was acquitted of criminal charges, this is a classic type of interception that is illegal under federal and state law. Mr. Gunter’s investigator did not attach a tape recorder to the marital phone, nor did he use the telephone to acquire the conversations. Rather, he used a wiretap and a recorder. Moreover, the lawyer continued to intercept the conversations of his client’s wife after hearing her conversations with friends discussing the advice provided by lawyers to her in contemplation of seeking a divorce from the lawyer’s client. Finally, the lawyer used the information gleaned from the non-consensual interception to advise his client to take proactive steps in order to frustrate the wife’s actions, based on the advice given her by the other lawyers with whom she had consulted. The Virginia Supreme Court held that “[t]he surreptitious recordation of conversations authorized by Mr. Gunter in this case was an ‘underhand practice’ designed to ‘ensnare’ an opponent. It was more than a departure from the standards of fairness and candor which characterize the traditions of professionalism.” Gunter v. Virginia State Bar, 238 Va. at 622.

In Gunter, the Virginia State Bar argued that the conduct complained of did indeed violate the wiretapping laws, notwithstanding Mr. Gunter’s acquittal of the criminal conspiracy charge, but that even if it was not unlawful, it was unethical, and fell within the prohibition of DR 1- 102(A)(4).10 The bar argued that more is expected of a lawyer than to refrain from criminal conduct. The Court agreed, stating:

The lowest common denominator, binding lawyers and laymen alike, is the statute and common law. A higher standard is imposed on lawyers by the Code of Professional Responsibility, many parts of which proscribe conduct which would be lawful if done by laymen ….

It follows that conduct may be unethical, measured by the minimum requirements of the Code of Professional Responsibility, even if it is not unlawful. It is therefore immaterial whether the conduct complained of in the present case violates the wiretapping laws, and we expressly refrain from deciding that question. 238 Va. at 621.

The Gunter decision, and in particular the above oft-quoted passage—described by some as dicta—formed the basis for a series of legal ethics opinions on undisclosed recording that followed. Importantly, the Supreme Court of Virginia made clear that it was not deciding

10 The Virginia State Bar argued "[s]tripped to its essentials, appellant's position is that if it's legal, it's ethical.” Gunter, supra, 238 Va. at 621.

FDFCDC 289 whether “one-party consent recording” would be unethical. The Court observed that “the recordation by a lawyer of conversations to which he is a party . . . [is] a circumstance not present in the case before us. We are not called upon to decide whether that conduct violates DR:1-102(A)(4), and we expressly refrain from deciding that question as well.” 238 Va. at 622. Nevertheless, the quoted language in Gunter has been applied by this Committee over the years to prohibit one-party consent recordings as deceitful conduct in violation of DR 1-102(A)(4) and now Rule 8.4(c).

The next year, in LEO 1324 (1990), the Committee had an opportunity to address the use of undisclosed recordings delivered to a lawyer by the wife whom he represented in a domestic relations matter. Prior to engaging the lawyer, the wife explained that she had secretly taped her husband’s conversations on the telephone in the marital home revealing her husband’s intimate involvement with another woman. The lawyer asked the Committee if it would be ethical to use the recordings. Because the client had already taped the conversations before the professional engagement, the lawyer was not a co-conspirator or accessory to the means by which the tapes were obtained. Therefore, the Committee opined that it would not be improper to use them.11 Tangentially, the Committee cited to Gunter, warning that even if the non-consensual recording was not illegal under federal or state law, a lawyer’s engaging in such conduct or assisting a client in such conduct violates DR 1-102(A)(4). Arguably, the Committee’s reference to and reliance on Gunter was not necessary to decide the narrow question before it; however, the Gunter decision was new, the decision had been referenced in the opinion request, and the facts presented in the opinion involved nonconsensual recording in a somewhat similar context. LEO 1324 was the Committee’s first post-Gunter opportunity to warn the bar and to provide guidance about the ethical implications if the lawyer had directed the client to engage in nonconsensual recording. Finally, unlike one-party consent recording, the undisclosed recordings in LEO 1324 were of conversations between the husband and third parties, none of whom had consented to the recording.

Legal ethics opinions that followed did, however, conflate the Gunter decision resulting in a blanket ban on lawyers using or even advising their clients to use one-party consent recording; that is, undisclosed recording of conversations in which they are a participant. As noted above, the Supreme Court of Virginia in Gunter specifically declined to decide whether it was unethical for a lawyer to engage in the undisclosed recording of a conversation with another in which the lawyer is a participant.

LEO 1448 is an example where the Committee evidently interpreted the decision in Gunter as banning undisclosed recording (even where one party to the conversation consented), reaching the conclusion that it would be unethical for a lawyer to advise his client to tape record conversations with her father. The client was allegedly sexually abused by her father when she was a child, and in some conversations the father had freely admitted his sexual abuse of her. The lawyer proposed that the client arrange to meet with her father and record their conversation. The Committee cited Gunter and LEO 1324, and opined: “Under the facts presented, the Committee opines that advising one’s client to initiate a conversation under possibly false pretenses and to secretly record such conversation is improper, deceptive conduct which may reflect on the lawyer’s fitness to practice law.” LEO 1448 does not disclose what facts were involved that indicated the client was going to “initiate a conversation under possibly false pretenses[.]” The Committee in LEO 1448 also noted:

11 Whether the tapes could be lawfully used or admitted into evidence are entirely separate issues beyond the purview of this Committee and therefore not addressed in its legal ethics opinions. Nevertheless, this Committee warns that a lawyer must carefully consider applicable criminal and civil law in determining whether to use an intercepted recording.

FDFCDC 290 …that the attorney may be attempting to do indirectly, through the client, what the attorney could not ethically accomplish directly and personally, i.e. contact the potential defendant directly under the appearance of disinterestedness and surreptitiously record the conversation, thus attempting to circumvent the applicable Disciplinary Rules. [DRs 1-102(A)(2) and (4), 7-102(A)(8), 7-103(B); LEOs Nos. 233, 848, 1170, 1217, 1324; Gunter v. Virginia State Bar, 238 Va. 617 (1989)].

In LEO 1635, the Committee again relied on an expansive view of Gunter, concluding that a corporation’s attorney engaged in misconduct by using an undisclosed recording device to tape a conversation with a recently discharged employee, to which the lawyer was a party, citing a violation of DR 1-102(A)(4). No discussion was provided regarding how the fact pattern involved “dishonesty, fraud, deceit, or misrepresentation.”

In LEO 1738, the Committee addressed some rather compelling scenarios in which the seemingly unqualified ban on lawyer involvement with one party consent recording was not only impractical, but frustrated important public policy. The Committee concluded that its prior opinions disapproved of a lawyer’s use of one party consent recording under any circumstances and found it necessary to carve out what has been termed a “law enforcement exception.”12 The requesting party asked the Committee “to reconsider prior opinions and opine as to whether it would be ethical under the Virginia Rules of Professional Conduct for a lawyer to participate in, or to advise another person to participate in, a communication with a third party which is electronically recorded with the full knowledge and consent of one party to the conversation, but without the knowledge or consent of the other party. Stated differently, in the context of legitimate government law enforcement investigations, are there circumstances under which a lawyer, or an agent under the lawyer’s direction, acting in an investigative or fact-finding capacity, may ethically tape record the conversation of a third party, without the latter’s knowledge?”

In LEO 1738, this Committee reviewed its previous opinions and stated that:

The Committee is concerned that its prior opinions have expanded the holding in Gunter and created a categorical ban, without qualification or exception, of any tape recording by an attorney or under the supervision of an attorney. Of all the state bar opinions issued on this subject, Virginia appears to be the only state that does not recognize any exception to the prohibition.

The Committee decided that its previous decisions were too broad in their reach. The opinion continues:

As stated above, the ethics opinions issued by this Committee to date do not recognize any circumstances that would allow an attorney to secretly tape record his or her conversations with another or direct another to do so. The Committee concludes that its prior opinions sweep too broadly and therefore they are overruled to the extent they are inconsistent with this opinion. (emphasis added).

Following a discussion of well-recognized and judicially approved practices in which government lawyers supervised undercover criminal investigations conducted by agents who employed deception and undisclosed recording, the Committee stated in LEO 1738 that “[a]ll of

12 In LEO 1765 the Committee described LEO 1738 as identifying a “law enforcement” exception to non- consensual recording.

FDFCDC 291 these scenarios demonstrate the need for limited exceptions and are far different from the facts in Gunter.” (emphasis added).

The Committee stated in LEO 1738 that there are at least three circumstances where such recording would be ethical: in a criminal investigation, in a housing discrimination investigation, and in situations involving threatened or actual criminal activity in which the recording lawyer was the victim. Moreover, the Committee expressly stated:

The Committee recognizes that there may be other factual situations in which the lawful recording of a telephone conversation by a lawyer, or his or her agent, might be ethical. However, the Committee expressly declines to extend this opinion beyond the facts cited herein and will reserve a decision on any similar conduct until an appropriate inquiry is made. (emphasis added).

In LEO 1765, the requester inquired whether the “various lawful activities performed by federal attorneys as part of the federal government’s intelligence and/or intelligence work” would be ethically permissible even though they involved use of methods such as “alias identities” and nonconsensual tape-recording. The Committee, citing LEO 1738 and its analysis, concluded that such lawful intelligence activities were ethically permissible. In reaching this conclusion, the Committee also emphasized the “new language of Rule 8.4(c) [Prof. Conduct Rule 8.4(c)], with its additional language limiting prohibition only to such conduct that ‘reflects adversely on the lawyer’s fitness to practice law.’” LEO 1765 went on to state that “[t]o the extent that anything in this opinion is in contradiction to the language in LEO 1217, that opinion is overruled.” LEO 1765 was approved by the Supreme Court of Virginia (2004).13

An important principle reiterated in LEO 1765 is that conduct that is legal may nevertheless be unethical for a lawyer. LEO 1765 relied on Gunter v. Virginia State Bar, 238 Va. 617 (1989), to conclude that a lawyer may properly be prohibited from particular conduct under the Rules of Professional Conduct even where such conduct is legal.14 The ethical rules for lawyers properly impose responsibilities on the profession beyond doing merely what is legal. While these principles are important, they must also be balanced against the lawyer’s ethical obligations to the client. In this opinion, we examine two situations in which we believe that a lawyer may ethically advise or counsel a client to use lawful undisclosed recording to obtain information relevant to the client’s legal matter.

D. Advising Clients to Use Lawful Undisclosed Recording

First Example

In the first example, the Committee reexamines the hypothetical presented in LEO 1448. B, a father, sexually abused A, his daughter, for an extended period of time during her childhood. B’s sexual abuse of A constituted a felony. As is the case with many victims of sexual abuse, A repressed her memories of this abuse and could not recall its nature or extent until after she received therapy as an adult. As a result of this abuse, A suffers from several substantial psychological disorders and has received extensive therapy including hospitalizations to treat or manage these disorders. A has contacted a lawyer to consider a possible civil claim against B for damages resulting from his abuse of her. There is little corroborating evidence and the claim is

13 Generally, a legal ethics opinion is advisory only and not binding on any court or tribunal. Va. S. Ct. R., Pt.6, §IV, ¶10 (b)(vi). However, if an advisory opinion such as LEO 1765 is reviewed and approved by the Supreme Court of Virginia, it becomes a decision of the Court. Id. at ¶ 10 (g)(iv). 14 This principle from Gunter was relied upon in U.S. v. Smallwood, 365 F. Supp.2d. 689 (E.D. Va. 2005) with regard to the tape-recording of witnesses.

FDFCDC 292 essentially A’s word against B’s. A has continued to have contact with B who has freely admitted, in prior conversations with A, his sexual abuse of her. A’s lawyer suggests that A arrange a meeting with B and unbeknownst to B, makes an undisclosed recording of their conversation. B is not currently represented by counsel.

In LEO 1448, the Committee concluded that the lawyer’s suggestion to A was improper because the lawyer was using the client to do indirectly what the lawyer was prohibited from doing directly, i.e., unethically tape record the conversation with B and improperly communicate with an unrepresented person.15 Rule 8.4(a) states that “it is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.”16

The Committee opines that the concerns regarding fairness to third parties must not be viewed in isolation, but must be considered along with a lawyer’s duty to diligently pursue the legal objectives of his client, pursuant to Rule 1.3. Comment [1] to Rule 1.3 directs an attorney to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” It is an essential part of a lawyer’s legal judgment to pursue his role as advocate within the ethical bounds established throughout the Rules of Professional Conduct. Rule 1.2 (a) states, inter alia, that “a lawyer shall consult with the client as to means by which [the client’s objectives] are to be pursued.” Rule 1.2(c) states that “a lawyer shall not counsel the client to engage, or assist the client, in conduct that the lawyer knows is criminal or fraudulent . . . .” Moreover, Rule 1.4 (b) states that, “a lawyer shall explain a matter to the extent reasonably necessary for the client to make informed decisions regarding the representation; and Rule 1.4(c) states that “a lawyer shall inform the client of facts pertinent to the matter. . . .” Comment [5] to Rule 1.4 states that, “the client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.” (emphasis added).

In balancing these competing interests, the Committee believes that A’s lawyer may advise, suggest or recommend that A lawfully record her conversation with B, without disclosing to B that their conversation is being recorded. Clients consult with lawyers for solutions to legal problems and expect lawyers to suggest the means, within the bounds of the law and the Rules of Professional Conduct, by which to achieve their objectives. A’s lawyer is not violating or attempting to violate the Rules of Conduct through the actions of A by advising A that she may record conversations with B. Rather, A’s lawyer is advising A of a legal course of conduct, which may or may not be acted upon by the client. In so doing, A’s lawyer is discharging her ethical obligation to advise the client of lawful means by which the client’s objectives may be achieved. By analogy, the Committee observes that the drafters of the Rules of Conduct concluded that a lawyer should be permitted to advise a client, whom the lawyer is representing on a civil claim, of the right to file criminal or disciplinary charges against their adversary without being deemed to have violated Rule 3.4(i) indirectly through the actions of the client.17

To the extent that prior Legal Ethics Opinion 1448 (1992) is inconsistent with this opinion, it is hereby overruled.

15 See, e.g., DR 7-103 now Rule 4.3. This rule does not ban entirely a lawyer’s communications with an unrepresented person, but only those communications in which the lawyer acts disinterested or is giving legal advice if that person’s interests conflict with the interests of the lawyer’s client. It is not clear to the Committee how this rule was violated under the facts presented in LEO 1448. 16 Rule 8.4 (a) is essentially the same as DR 1-102(A)(1) relied on in LEO 1448. DR 1-102(A)(2) stated that a lawyer shall not “circumvent a Disciplinary Rule through actions of another.” 17 See Comment [5], Virginia Rule 3.4(h): Although a lawyer is prohibited by paragraph (h) from presenting or threatening to present criminal or disciplinary charges solely to obtain an advantage in a civil matter, a lawyer may offer advice about the possibility of criminal prosecution and the client’s rights and responsibilities in connection with such prosecution.

FDFCDC 293

Second Example

In the second example, a lawyer conducting an ongoing internal investigation of employee misconduct within a company may consider when and under what circumstances the lawyer may ethically use or direct another to use lawful, undisclosed recording to gather information in the representation of a client. A hypothetical will facilitate the discussion:

Able is in-house counsel for Company B. At the suggestion of a manager, an employee of Company B goes to Able’s office and complains that she is being subjected to a hostile work environment because a co-worker repeatedly makes sexually offensive remarks in the workplace. The coworker has been questioned about this on a number of occasions and denies the other worker’s claims. Management asks Able for advice on what to do. Able recommends that the coworker be equipped with an undisclosed device to record the coworker’s remarks. Able has researched the applicable law and concluded that the proposed recording does not violate any law.

Has Able violated Rule 8.4(c) directly or indirectly via Rule 8.4(a) by advising Management to have the complaining employee wear a hidden recoding device? Using the analysis applied in the first example, the Committee opines that Able has not violated Rule 8.4(c) directly or indirectly.

As indicated in this opinion, Legal Ethics Opinions 1738 and 1765 provide specific and limited exceptions to the general rule that a lawyer cannot use or direct an agent to use lawful but undisclosed recording in gathering evidence. The hypotheticals in this opinion clearly do not fit within these specific and limited exceptions. However, those opinions acknowledged that there may be other circumstances under which a lawyer may use or advise another to use lawful undisclosed recording.

E. Conclusion

Gunter, supra, and LEOs 1738 and 1765 did not present situations in which the Supreme Court of Virginia or the Committee were required to balance a lawyer’s duty to competently and diligently advise a client regarding lawful means by which to conduct an investigation against the Virginia State Bar’s and the Court’s disapproval of undisclosed recording. In both of the above examples, the Committee faces situations in which the client has asked the lawyer for his or her opinion on how to address the client’s legal problem. The proposed undisclosed recording is not only lawful, but could very well be the only means by which the client may obtain relevant information. Nothing that the lawyer has suggested or recommended to the client violates the legal rights of the person whose statements are to be recorded. The Supreme Court of Virginia in the Gunter decision did not rule that undisclosed recording with the consent of one of the parties to the conversation was “deceitful” conduct and expressly declined to decide that issue. This Committee believes that the circumstances presented in both examples are easily distinguishable from and stand in stark contrast to the illegal wiretapping case presented in Gunter. Both examples are situations that require the lawyer to weigh the competing ethical obligations of a lawyer’s duties to third parties against those owed to the client.

This opinion is advisory only, based only on the facts presented and not binding on any court or tribunal.

Committee Opinion September 29, 2010

FDFCDC 294

LEGAL ETHICS OPINION 1862 ”TIMELY DISCLOSURE” OF EXCULPATORY EVIDENCE AND DUTIES TO DISCLOSE INFORMATION IN PLEA NEGOTIATIONS

In this hypothetical, in a pending criminal prosecution, the prosecutor is aware of exculpatory evidence, in the form of witness statements accusing another individual of the offense with which the defendant is charged. The prosecutor is also aware that the primary inculpatory witness, an eyewitness to the offense, has died and therefore will not be available to testify in future proceedings in the case. There is an upcoming preliminary hearing scheduled in the case, although the prosecutor has offered a plea bargain in which the defendant would plead guilty to a lesser offense and waive the preliminary hearing. The prosecutor has not disclosed either the exculpatory evidence or the death of the primary witness.

QUESTION PRESENTED

1. Is the “timely disclosure” of exculpatory evidence, as required by Rule 3.8(d), broader than the disclosure mandated by Brady v. Maryland, 373 U.S. 83 (1963), and other case law interpreting the Due Process clause of the Constitution? If so, what constitutes “timely disclosure” for the purpose of Rule 3.8(d)?

2. During plea negotiations, does a prosecutor have a duty to disclose the death or unavailability of a primary witness for the prosecution?

APPLICABLE RULES AND OPINIONS

The applicable Rules of Professional Conduct are Rule 3.8(d)1, Rule 3.3(a)(1)2, Rule 4.13, and Rule 8.4(c)4.

ANALYSIS

Pursuant to Brady v. Maryland and subsequent cases, a prosecutor has the legal obligation to disclose material exculpatory evidence to a defendant in time for the defendant to make use of it at trial. A number of cases interpreting this legal obligation have noted that the

1 Rule 3.8 Additional Responsibilities Of A Prosecutor A lawyer engaged in a prosecutorial function shall: *** (d) make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court;

2 Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal;

3 Rule 4.1 Truthfulness In Statements To Others In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of fact or law; or (b) fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

4 Rule 8.4 Misconduct It is professional misconduct for a lawyer to: *** (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law;

FDFCDC 295 LEO 1862 Page 2 prosecutor’s ethical duty to disclose exculpatory evidence is broader than the legal duty arising from the Due Process clause, although they have not explored the contours of that ethical duty.5

Rule 3.8(d) does not refer to or incorporate, in the language of the Rule or its comments, the Brady standard for disclosure. The standard established by the Rule is also significantly different from the Brady standard in at least two ways: first, the Rule is not limited to “material” evidence, but rather applies to all evidence which has some exculpatory effect on the defendant’s guilt or sentence; second, the Rule only requires disclosure when the prosecutor has actual knowledge of the evidence and its exculpatory nature6, while Brady imputes knowledge of other state actors, such as the police, to the prosecutor. These differences from the Brady standard raise the further question of whether Rule 3.8(d) requires earlier disclosure than the Brady standard, which requires only that the evidence be disclosed in time for the defendant to make effective use of it. Thus, the prosecutor has complied with the legal disclosure requirement if the evidence is disclosed in the midst of trial so long as the defendant has an opportunity to put on the relevant evidence.7

Although the Committee has never definitively addressed the question, it opines today that the duty of timely disclosure of exculpatory evidence requires earlier disclosure than the Brady standard, which is necessarily retrospective, requires. This conclusion is largely based on the response to Read v. Virginia State Bar, in which the Supreme Court of Virginia reversed the Virginia State Bar Disciplinary Board’s order revoking a prosecutor’s license, finding that the prosecutor had complied with his legal obligations under Brady and therefore had complied with the correlative ethics rule in force at that time. The disciplinary rule in effect at that time was DR 8-102 of the Virginia Code of Professional Responsibility which read, “The prosecutor in a criminal case or a government lawyer shall . . . [d]isclose to a defendant all information required by law.”

At the time of the conduct at issue, Beverly Read was a Commonwealth’s Attorney. Read was conducting the prosecution of an arson case. During the investigation, the Commonwealth discovered two witnesses, Sils and Dunbar, who both identified the defendant at the scene of the crime. Sils had second thoughts after he identified the defendant in a line-up and later became convinced that the defendant was not the person Sils had observed at the scene of the crime. Sils disclosed to Read that the defendant was definitely not the man observed at the scene of the crime. Read told Sils that he would not be called as a witness and that his presence was no longer necessary. Read concluded his case and rested without disclosing that the two witnesses had changed their statements. When Sils went home and had further discussions with the other witness, Dunbar, both became convinced that the defendant was not the man they saw. They returned to the courthouse during the trial the following day and agreed to testify for the defense. Read then attempted to pass a message to defense counsel that would have disclosed the exculpatory information but defense counsel refused to accept the writing. Unsuccessful in passing this information to defense counsel, Read then read into the record that the two witnesses had recanted and would testify that the defendant was not the man they saw at the scene of the crime. After this exchange, defense counsel moved to dismiss for prosecutorial misconduct.

5 See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) (“Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.”), citing Rule 3.8(d); Kyles v. Whitley, 514 U.S. 419, 436 (1995) (noting that Brady “requires less of the prosecution than” Rule 3.8(d)).

6 As Comment [4] to Rule 3.8 explains, “[p]aragraphs (d) and (e) address knowing violations of the respective provisions so as to allow for better understanding and easier enforcement by excluding situations (paragraph (d)), for example, where the lawyer/prosecutor does not know the theory of the defense so as to be able to assess the exculpatory nature of evidence…”

7 See e.g., Read v. Virginia State Bar, 233 Va. 560, 357 S.E.2d 544 (1987).

FDFCDC 296 LEO 1862 Page 3 The motion to dismiss was denied. A complaint against Read was made with the Virginia State Bar and a disciplinary proceeding ensued.

Read’s counsel argued that his client had complied with Brady because the information was available to use during trial, and therefore had disclosed “all information required by law.” In spite of the Board’s finding that Read had willfully intended to see the defendant tried without the disclosure that the two witnesses had recanted, the Supreme Court of Virginia agreed that Read had complied with the disciplinary rule, reversed the Disciplinary Board’s decision, and entered final judgment that Read had not engaged in any misconduct. Following this decision, the Bar rewrote the relevant rule, replacing the Brady standard with the standard now found in Rule 3.8(d), clarifying that the prosecutor’s ethical duty under that rule is not coextensive with the prosecutor’s legal duty under Brady.

In light of the conclusion that Rule 3.8(d) requires earlier disclosure than the Brady standard, the Committee next turns to the meaning of “timely disclosure.” In general, “timely” is defined as “occurring at a suitable or opportune time” or “coming early or at the right time.” Thus, a timely disclosure is one that is made as soon as practicable considering all the facts and circumstances of the case. On the other hand, the duty to make a timely disclosure is violated when a prosecutor intentionally delays making the disclosure without lawful justification or good cause.

The text of the Rule makes clear that a court order is sufficient to delay or excuse disclosure of information that would otherwise have to be turned over to the defendant. Thus, where the disclosure of particular facts at a particular time may jeopardize the investigation or a witness, the prosecutor should immediately seek a protective order or other guidance from the court in order to avoid those potential risks. As specified by the Rule, however, disclosure must be “precluded or modified by order of a court” (emphasis added) in order for the prosecutor to be excused from disclosure.

Because this is not a bright-line rule, the Committee cannot give a definitive answer to the question of whether the prosecutor must immediately turn over the exculpatory evidence at issue in the hypothetical; however, the prosecutor may not withhold the evidence merely because his legal obligations pursuant to Brady have not yet been triggered. As to the second question, assuming that the witness’s unavailability does not come within the scope of Rule 3.8(d), other rules might obligate the prosecutor to disclose this information during plea negotiations or when the plea bargain is being presented to the court.

Specifically, Rules 3.3, 4.1, and 8.4(c) all forbid making false statements or misrepresentations in various circumstances. Rule 4.1(a) generally prohibits making a false statement of fact or law, and Rule 8.4(c) specifically forbids any misrepresentation that “reflects adversely on the lawyer’s fitness to practice law.” Both of these provisions would apply to any misrepresentation or false statement made in the course of plea negotiations with the defendant/his lawyer. Rule 3.3(a)(1) specifically forbids any false statement of fact or law to a tribunal, which includes any statements made in the course of presenting a plea agreement to the court for approval and entry of the guilty plea. Accordingly, the prosecutor may not make a false statement about the availability of the witness, regardless of whether the unavailability of the witness is evidence that must be timely disclosed pursuant to Rule 3.8(d), either to the opposing lawyer during negotiations or to the court when the plea is entered.8

This opinion is advisory only based upon the facts as presented, and not binding on any court or tribunal.

8 See also Rule 3.8(a), which bars a prosecutor from filing or maintaining a charge that the prosecutor knows is not supported by probable cause.

FDFCDC 297 LEO 1862 Page 4

Committee Opinion July 23, 2012

FDFCDC 298 FDFCDC 299 FDFCDC 300 FDFCDC 301 FDFCDC 302 FDFCDC 303 THIS PAGE INTENTIONALLY LEFT BLANK

FDFCDC 304