A Little Post Conviction Discussion

I’m a little late posting this week, mainly because a whole lot came up regarding the very issue I am discussing here. Post conviction work is probably my favorite place to work in the law and, unfortunately, a lot of it goes to attorneys who are court appointed and are thoroughly bored by their jobs. But post conviction appeals can be some of the most rewarding and most galvanizing work that is out there, and the gratification you’ll receive from the client and feel for your worthwhile work will almost outweigh the disappointment when you lose the appeal. So let’s talk post conviction, shall we?

Post Conviction relief often focuses on a few set arguments: ineffective assistance of counsel, breach of one part or another of a fourth amendment right, and the good ole standby, prosecutorial misconduct. (Just as a side not folks, take the arguments professionally, if you’re being called ineffective, don’t let it make you mad, sometimes you’re just a vehicle to getting a second shot at an argument. Sometimes its just the appellate lawyer’s job to call anyone she can incompetent. I usually apologize to the person for having to take that step, but please, don’t take offense.)

Back to prosecutorial misconduct: I’ve read arguments which are great examples of misconduct (usually later deemed harmless error) and I’ve seen arguments that are just a shot in the dark. Rarely have I seen a win, and never in one of my own cases, based on a misconduct argument. But a momentous decision has just come down from the federal courts, and I’d like to discuss it a little, and its possible implications.

The Washington D.C. Circuit Court of appeals just disbarred a federal prosecutor, an action that hasn’t occurred in, reportedly, over ten years. Former assistant U.S. attorney  G. Paul Howes was disbarred for his conduct in a number of high profile murder and gang cases. Howes apparently used vouchers, intended to pay for witnesses’ reasonable expenses, to bribe informants’ relatives and significant others. Not only that, but Howes then repeatedly lied and hid the conduct from the investigators and the court.

Interestingly, the Board on Professional Responsibility voted only for a suspension for Howes’ conduct. Appently, in their mind, bribery and perjury aren’t *that* big of a deal. The Circuit Court disagreed. They disbarred him.

Nine convicted persons have already gotten reduced sentences based on the revelation of the misconduct. How many more are to follow is anyone’s guess, but its certainly a case any appeals lawyer would jump to take on.

Systemically, for appeals lawyers everywhere, not just in Washington DC, does this mean anything? My answer is: Maybe. Although the judicial decision against Howes is not precedent in any way except for cases against other prosecutors, the nine convicted persons’s appeals certainly can be. I also don’t think its necessary to get to the level that Howe was at to find it could be prosecutorial misconduct. There is no need to reach the level of disbarment to achieve something more than a harmless error through misconduct.

If you come upon an issue of prosecutorial misconduct, even if DC Circuit isn’t in your jurisdiction, and even if you’re in a state court, I think you should try to draw the connection. The strength of your argument can only be increased by showing how one instance of prosecutorial misconduct can truly be a long standing practice of misconduct. So try it, and let me know how it goes!

Ethical Dilemmas: Sex Offender Registration

I have worked on a number of sex offender cases, some in the initial defense, and some later on, dealing with the repercussions. The most memorable was a man who was convicted of statutory rape, required to register as a sex offender, later married the girl and had two children with her. He lives in a relatively small town, and word of his forced registration got out. He was fired from his job and has been unable to obtain another. To add insult to injury, his children’s school had him escorted from the grounds by a police officer. Apparently, they had a policy that no sex offenders would be allowed on school property, even to attend a parent teacher conference or a scholastic event which his child participated.

Now its not that I don’t think some sex offenders continue to pose a danger to some portion of society. But once a person has served their time, paid their debt, is it fair of society to shun them forever? We are guilty of this on a number of issues, including felon disenfranchisement in voting, felons owning firearms, and prevention of felons from obtaining certain jobs. These people are all perceived as an ongoing threat to society, but not sufficiently so to keep them locked away from it. I object to almost all of these laws, no matter the state or the severity, simply on a moral ground.

The sex offender issue came up recently in a United States Supreme Court case, Reynolds v. US. In Reynolds, a sex offender was convicted prior to federal law being passed requiring registration. Reynolds registered in 2005, and maintained registration in Missouri, until he decided to move to Pennsylvania, in 2007. There, he did not register, which is contrary to a Federal law, Sex Offender Registration and Notification Act (SORNA,) requiring all sex offenders to register with police where they live and work, no matter where they were convicted, and no matter when.

The issue is that Reynolds was convicted before SORNA was passed, and it is only a decision by the Attorney General which stands as interpreting the law as requiring registration no matter when the person was convicted. So that creates 2 questions: 1. Did the Act require registration no matter when convicted, and 2. Does the text of the statute, which give the Attorney General power of interpretation, allow him to determine that the law applies to all no matter what.

The Court examined whether the act, in and of itself, could require all offenders to register, even if conviction occurred before SORNA was passed. The Third Circuit determined that that was indeed what the law required. The Supreme Court disagreed. The Court stated that the Act itself did not require offenders to register. However, the Court also determined that the statute didn’t require registration of prior offenders unless and until the Attorney General stated otherwise.

Although part of the Third Circuit has been overturned, Reynolds still has to return and argue whether the Attorney General’s absolute rule of registration is valid. If the lower courts disagree with him on the validity of the Attorney General’s rule, then Reynolds still loses the case, and he, along with thousands of others, must register as sex offenders even if convicted thirty years ago of urinating in an alley.

I have worked with many unsavory characters in my time as a lawyer, some more likely to repeat an offense than others. But, just as our judicial system states that one is innocent until proven guilty, shouldn’t we give people the benefit of the doubt regarding repetition of offense? Is it right that my former client couldn’t go pick up his kids at school without being arrested? Is it right that we automatically condemn certain people, without considering circumstance and without hesitation? The Supreme Court doesn’t want to comment on that issue just yet.

Eyewitness Identification

Eyewitness identification of a defendant as the perpetrator of a crime is subject to scrutiny by the court, but that does not necessarily implicate constitutional protections. Let’s break it down in simple terms. There are two situations where identification is an issue: where the witness identifies the person on their own, without a police staging of suspects, and then where there is a police staging of suspect. Each situation triggers a different issue.

When the Witness comes forward on his/her own

Let’s set the stage: Jane Doe witnesses a person breaking  into her house, she recognizes that person as her neighbor. She calls the police and tells them to come to her home and when they get there she points them in the direction of her neighbor. Joe Schmoe is arrested based on her identification and goes to trial.

When the witness identifies a suspect on his or her own, the issue is one of credibility. In this situation, the jury gets to decide whether the identification is correct and how much weight to give that eyewitness’s identification. The witness’s testimony is cross examined by the defendant, and, as is described in the confrontation clause blog post, the defendant attempts to put the jury in doubt as to the witness’s credibility.

For example, an attorney might say, “Ms. Doe, isn’t it true that you’ve hated Mr. Schmoe since he accidentally chopped off the top of your prized peony with his lawn mower?” or “Ms. Doe, isn’t it true that you have extraordinarily bad eyesight and you weren’t wearing your glasses?” This cross examination acts as a safeguard; the defendant can show the jury that the eyewitness is not reliable.

In the end though, when the eyewitness identifies the person on their own, without police assistance, the issue is entirely up to the jury as to whether the person got the identification right.         The judge has no right to preview the issue and prevent the testimony, even if the eyewitness is completely blind and deaf.

When the Police Use Identification Procedure

Let’s give a new example: Victor Vitim is robbed at gunpoint. He saw the person’s face, and gives a description to the police, but he does not know the suspect by name. The police arrest Danny Defendant, who vaguely fits Victor’s description. Then they set up a line-up and Victor identifies Danny as the person who robbed him. Danny goes to trial.

When the police are involved in getting the identification of the accused, the protection for the defendant becomes a two-step question: was the identification tainted by police arrangement, and did the jury find the eyewitness credible. When the government is involved in identification, the courts must ensure that the defendant’s due process was protected.

Police arranged identification procedures cannot be suggestive or unnecessary. Suggestive circumstances occur when the defendant is the only person who even comes close to fitting a physical description, for example. Unnecessary circumstances occur when the eyewitness says he or she saw nothing, and yet the police insist on getting identification from the witness, for example. Either situation, alone, would be enough to cast doubt on the due process protections given to the defendant.

However, being suggestive or unnecessary is not enough to violate due process sufficiently to get the identification suppressed. If the identification was shown to be unnecessary or suggestive, the court then looks at the facts around the case, and make a determination of whether the police conduct created a “substantial likelihood of misidentification.” The process must have been (1) suggestive or unnecessary, AND (2) gives a substantial likelihood of misidentification.

Where indication that the witness could make an accurate identification are outweighed by the police’s corrupting effect, then the identification should be suppressed.

If that standard cannot be met, the issue continues to trial where the jury gets to make the same credibility determination as was described above. The attorney for the defendant may question the witness on the police’s conduct