Aiding and Abetting

The U.S. Supreme Court handed down a long needed update ot the law of aiding and abetting. Justice Kagan gave us an opinion in Rosemund v. United States, No. 12-895, — U.S. —, analyzing in depth, how to evaluate whether an individual was aiding and abetting in the commission of a crime. Not only that, but Justice Kagan penned the opinion with a degree of panache that perhaps the Hon. Learned Hand could appreciate. In this split decision case, Justices Roberts, Kennedy, Ginsberg, Breyer and Sotomeyer joined the opinion.

The facts of the case make for a comedy, or at least an episode of “Weeds.” Vashti Perez found herself in possession of one pound of marijuana, and determined she’d like to sell it to an individual at a local park. She got two friends, Ronald Joseph and petitioner Justus Rosemund, and they drove to the park. The buyer got into the back seat of the car, where the passenger showed him the marijuana. Rather than handing over the money, the buyer punched the passenger in the face, got out of the car, and ran away. At this point one of the male passenger, and Kagan notes “it is disputed which one,” pulled out a weapon and began firing. The buyer escaped, and the three “would be drug dealers” were arrested. All were charged with not just drug trafficking, but also using a gun in connection with the drug trafficking, violating §924(c), and resulting in a five year mandatory minimum sentence. Rosemund alleged that Joseph in fact had the gun, and that he had no idea the gun would be brought to the transaction.

It is a recognized principle of criminal law that individuals who help other individuals commit crimes, are equally guilty of the crime; this is aiding and abetting liability. This case carries two crimes, not wholly independent of each other. The first, the drug transaction, and the second, bringing a gun to the drug transaction. Formerly, “the quality of assistance was immaterial, so long as the accomplice did something to aid the crime.” In that situation Rosemund could be guilty of aiding in both crimes, if he knew only of the gun, or only of the drugs. The court instead states that aiding and abetting begins at the point when the individual discovers the information and can opt out of the crime. That is, when the individual learns of the gun, he becomes an aider or abettor, because he has chosen, with full knowledge, to participate in that illegal scheme.

The new rule (or revised rule) is that a jury must determine when an individual had knowledge of the crime, and whether at that point he or she opted out, or whether they assisted in committing the crime. This does not look to elements of the crime, it looks to knowledge.

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!

The Confrontation Clause: What Is It, and How Do I Use It?

The confrontation clause is a provision in the Sixth Amendment of the United State Constitution which provides that “in all criminal proceedings, the accused shall enjoy the right… to be confronted with all witnesses against him.” What this means for  the defendant is that he/she has the right to fully cross examine any and all witnesses who testify against you at trial.

This only applies at criminal proceedings. There are a very small number of cases where the defendant will not be allowed to actually see the witness, or the witness may be permitted to be examined in a room away from the defendant. One example might be where the witness is a child who suffered sexual abuse. Then the child is generally kept in a separate room and the defendant watches the testimony from closed circuit television. Face to face confrontation is preferred but it must sometimes be replaced where public policy or issues of travel prevent it.

If a statement is “testimonial” the witness must be cross examined (testimonial means it tells a story,it  offers facts for the court’s consideration).  Generally to be cross-examined the witness must be available (i.e. in court). When witness is unavailable or becomes unavailable the court should not allow the testimony to come in. The defendant may object to any questions asked where he would not be permitted to cross examine due to a lack of availability of the witness. Unavailability may be: death, loss of memory, taking the Fifth, or simply not answering the questions and refusing to cooperate.

If a witness is unavailable and the defendant had no previous opportunity to cross examine the witness, then the witness’s testimony should not be permitted at trial. If you think you have an issue where a witness is unavailable and/or full cross examination was not possible, contact your attorney, or if you are unrepresented contact this firm.

There are two exceptions to the confrontation clause:

  1. A dying declaration- where the proposed testimony is made by a person when they believe they are dying and they are subsequently unavailable for cross examination (just unavailable, not necessarily dead) then their testimony is considered truthful and it is permitted.
  2. Wrongdoing- where the defendant deliberately make the witness unavailable through some form of wrongdoing, then the defendant gives up any right to confront the witness. The key is that the wrongful act was done specifically to prevent the witness form testifying. That is a new concept I will be discussing at my other blog, within a few weeks.

All other laws must give way to the confrontation clause because it is in the constitution. This means that hearsay rules and rape shield laws will not prevent you from cross-examining a witness.

Where the information the witness would have given is non-testimonial, the confrontation clause does not apply.

Relevant expansion in Wyoming:

–          In accusations of sexual assault, the defendant is permitted to cross examine the victim about other relevant sexual activities, so long as both parties are over the age of majority. Hannon v. State.

–          A pretrial deposition by the defendant can be sufficient cross-examination of a witness such that an unavailable witness’s testimony could be given at trial. Martinez v. State.

–          Where a testimonial statement is entered, the witness must be allowed confrontation, the mere fact that the statement is given under oath or as a confession of some sort is not sufficient protection and admission of such a statement without opportunity to cross is not permissible. Vigil v. State.

Relevant expansion in Pennsylvania:

–          Pennsylvania holds differently from Wyoming and states that sufficient protection by the hearsay exceptions can remove the necessity for confrontation of the witness, even when the statements are testimonial. Commonwealth v. Carter (I believe this will be challenged at some point, but for now, it is the law in Pennsylvania)

–          The confrontation clause does not guarantee access to pretrial discovery, it is only a trial right. Commonwealth v. Herrick.

–          A trial judge retains wide latitude to determine how far cross-examination may go in the face of concerns like harassment, prejudice, confusion of the issues, witness safety, etc. Commonwealth v. Handfield.