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Reversible Error Issue New York and Vermont The BACK BENCHER Seventh Circuit Federal Defenders Vol. No. 21 Reversible Error Issue New York and Vermont. His column is evidence that, even in the harsh environment of today’s federal courts, DEFENDER’S MESSAGE zealous advocates are ensuring the rights of their clients through the engine of reversible error. We should strive to Reversible error is the sword and shield of every criminal do the same. defense lawyer. At trial, the criminal defense lawyer can preemptively protect his client from prejudice by bringing As part of our continuing effort to help fulfill this the potential for reversible error to the attention of the trial exhortation, a number of continuing legal education judge, thereby preventing an error before it occurs. On opportunities are on the horizon for our panel attorneys. appeal, knowledge of what constitutes reversible error Three national CJA training programs are scheduled for allows the defense lawyer to retroactively shield his client this year at the following locations and dates: Kansas City, from the effects of impermissible prosecutorial blows MO on May 18-20; Boston, MA on July 6-8; and San already suffered. But reversible error is more than a Antonio, TX on September 21-23. An application for weapon in the arsenal of the criminal defense lawyer; it is these programs is attached to the back of this issue of The also an engine for change. Landmark decisions such as Back Bencher. Incidentally, I have preliminarily accepted Gideon v. Wainwright Brady v. , 372 U.S. 335 (1963) and an offer to speak at each of these programs. I hope to see Maryland , 373 U.S. 83 (1963), to name but two, secured you at one of them. For those who would prefer a protections to the citizen-accused through the efforts of program closer to home, our office, the Community tenacious, creative, and dedicated advocates who Defender in Chicago, Terry MacCarthy, and the Illinois succeeded in demonstrating to the courts that reversible Association of Criminal Defense Lawyers (IACDL) are error occurred where none had been found before. This once again co-sponsoring a CJA Panel Attorneys’ same creativity is necessary in today’s federal criminal Seminar. The program will be in Chicago this year and is legal climate where the courts have upheld the draconian tentatively set for October 5th through the 6th. Lastly, sentences under the sentencing guidelines, the arbitrary yielding to demands for a repeat of last years’ much and cruel imposition of mandatory minimum sentences, the acclaimed golf-outing in Bloomington, we will again be co- erosion of rights secured by the Fourth Amendment, and sponsoring a golf outing later this year along with the execution of citizens by the government. MacCarthy and the IACDL. Details will be forthcoming as they develop. To assist you in your efforts to not only avoid or remedy reversible errors but also to create positive change to In closing, that much anticipated event, St. Patrick’s day, is existing law, we once again provide to you Alexander coming fast upon us. I hope you will all celebrate the day Bunin’s compilation of cases from all the federal circuit with vigor, and remember, “All Irishmen are kings, but not courts of appeal where a reversible error was found to all kings are Irishmen.” have been committed by the district court below. Federal Public Defender Bunin’s exhaustive listing of these cases is a valuable tool for all federal criminal defense lawyers Happy St. Patrick’s Day! working for their clients in both the district and appellate courts. This labor intensive effort by Mr. Bunin is much appreciated, especially given the fact that lately much of his time has been devoted to organizing the newly created Richard H. Parsons Federal Defender’s Office for the Northern District of Federal Public Defender P 2 Reversible Error Issue The BACK BENCHER Central District of Illinois Identification .......... 32 Aggravating Role ....... 48 Expert Testimony ...... 32 Mitigating Role ........ 49 Table Of Contents Entrapment ........... 32 Acceptance of Jury Instructions ....... 32 Responsibility ... 49 Dictum Du Jour .............3 Argument ............ 34 Safety Valve .......... 49 Churchilliana ...............5 Deliberations .......... 34 Criminal History ........ 50 Defending the Defense Against Variance ............. 34 Upward Departures ..... 50 Post-Moratorium Fallout ....6 Speech / Assembly ...... 34 Downward Departures ... 51 Let Judges Be Judges! ........7 Interstate Commerce .... 34 Fines / Restitution ...... 52 The “Reliability” Objection .....9 Firearms ............. 34 Appeals .............. 53 CA-7 Case Digest Extortion ............. 35 Resentencing .......... 54 Recent Reversals ......12 Drugs ............... 35 Supervised Rel./Probation . 54 Recent Affirmances ....15 CCE ................ 36 Ineffective Assistance Non-Summarized Cases ..20 Fraud / Theft .......... 37 of Counsel ..... 55 Reversible Error Money Laundering ...... 38 Parole ............... 56 Release .............21 Aiding and Abetting ..... 38 Attachment Counsel .............21 Perjury .............. 39 False Statements ....... 39 Discovery ............22 A FOND FAREWELL Arrests ..............22 Contempt ............ 39 Warrantless Searches ....23 Miscellaneous Crimes .... 39 On behalf of all the staff at the Federal Warrants .............24 Juveniles ............. 40 Defender’s office, we extend our best Knock and Announce ....24 Sentencing - General .... 40 wishes to retiring Magistrate Judge Statements ...........24 Grouping ............ 41 Robert J. Kauffman. Judge Kauffman Recusal ..............25 Consecutive/Concurrent .. 41 graduated from Cathedral High School Indictments ...........25 Retroactivity .......... 42 in Springfield and earned his law Limitation of Actions ....25 Sentencing degree from Marquette University in Venue ...............25 Drug Quantities .. 42 Wisconsin. He then began his long Pretrial Procedure ......25 Marijuana ...... 43 career of public service, working as an Severance ............25 Meth. ......... 43 As sistant United States Attorney, Conflicts .............26 Crack ......... 43 Clerk of the Court for the Central Competency / Sanity ....26 Firearms ....... 44 District of Illinois, and, finally, as our Privilege .............26 Money Laundering 44 Magistrate Judge. In this capacity, he Jeopardy / Estoppel .....26 Pornography .... 44 earned the respect of the legal Plea Agreements .......27 Fraud / Theft .... 44 community throughout the Central Guilty Pleas ...........28 Enhancements District by his fairness, friendliness, Timely Prosecution .....29 General ........ 45 and temperament. This respect and Jury Selection .........29 Drug Crimes .... 46 admiration felt for Judge Kauffman Closure ..............29 Violence ....... 46 was evident by the large number of Trial Procedure ........29 Immigration .... 46 people who came to his retirement Confrontation .........30 Career Enhancements .... 47 gathering on February 11, 2000. We Hearsay .............30 Cross References ....... 47 will miss him, but are confident that, as Defense Evidence ......30 Abuse of Trust ........ 47 a member of the Ancient Order of Misconduct ...........31 Obstruction of Justice ... 47 Hibernians, sightings of him in his Irish Extraneous Evidence ....31 Vulnerable Victim ....... 48 P 3 Reversible Error Issue The BACK BENCHER green MG convertible are likely each Terry, on this well- past, the judiciary requested funding to St. Patrick’s day for years to come. deserved recognition pay panel attorneys $75 per hour for of the extraordin both in and out-of-court work, A WARM WELCOME ary representa Congress approved only a partial tion you have increase. However, the Judicial With Magistrate Judge Kauffman’s provided to the citizen- Conference has agreed to renew its retirement, we at the Office of the accused throughout request for full funding in FY 2001. Federal Public Defender have occasion the course of your long career. Already pushing for approval of full to welcome our newest Magistrate funding, Chief Justice Rehnquist in his Judge, John Gorman. Judge Gorman Witnessing the presentation of this 1999 Year-End Report on the Federal comes to the federal bench with a honor were other Defenders throughout Judiciary lamented the poor wealth of judicial experience which will the country, including speakers Judy compensation provided to panel serve him well in his new position. Clark, Henry Martin, John Cleary, and attorneys and stated, “Inadequate After graduating from Flanagan High A.J. Kramer. These and other compensation for panel attorneys is School, Judge Gorman attended Illinois speakers addressed a number of seriously hampering the ability of Wesleyan where he played varsity golf important topics related to federal courts to recruit and retain qualified and was a member of Sigma Chi criminal defense issues, although, as panel attorneys to provide effective Fraternity. Upon earning his law expected, the much-dreaded A.J. representation. The maximum CJA degree at the University of Illinois, he Kramer gave his usual lengthy, satirical, hourly rates have been eroded by began a successful legal career, and insulting diatribe inadequately inflation and are substantially below ultimately serving as a justice on the disguised as a facetious tribute to our prevailing rates in the legal profession Third District Appellate Court and as good friend, Terry MacCarthy. I respectfully ask Congress to Chief Judge of the 10th Judicial Circuit. make adequate compensation for panel We are sure that Judge Gorman will attorneys
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